Personnel e.bulletin – October 2013
Guide to Avoiding Discrimination in the Workplace
Prepared for the PHCC Educational Foundation by TPO, Inc.
You may be wondering why we continue highlighting discrimination as a “top of mind” workplace concern. It was half a century ago that the EEOC was formed by Congress to enforce Title VII of the Civil Rights Act. Shouldn’t this be old news? The realty is that accusations of workplace discrimination filed with the commission continue and have taken on more complexity. In 2012, the EEOC reported nearly 100,000 job bias charges, obtaining nearly $365 million for victims of workplace discrimination. While incidences have been slightly on the decline, discrimination charges and practices can cost business owners much more than the financial effects; they can wreak havoc on employee morale, productivity, ability to retain and recruit staff, and even the perception among their customers.
The discrimination narrative is not over and will continue to be an important one as workforce dynamics are just that, dynamic. Protect yourself with the following guidelines.
Know What Constitutes Workplace Discrimination
Discrimination is the practice of unfairly treating a person or group of people differently from other people or groups of people.
In the workforce, it is illegal to discriminate because of a person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. In addition, it is against the law to discriminate against a person who complains about discrimination, who has filed a charge of discrimination or who has participated in an employment discrimination investigation or lawsuit.
Employers are generally covered by EEOC laws if they have at least 15 employees (or 20 employees in the case of age discrimination). Let’s explore each protected category in a little more detail. The chart below provides an overview of the protected classes and some basic information intended to build your awareness of the complexities of discrimination. As you review the information, keep in mind that the law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
EEOC Discrimination Type – Race/Color: Discrimination based on race or personal characteristics – hair texture, skin color or tone, or certain facial features.
It is illegal to deny equal employment opportunities based on:
- Marriage to or association with an individual of a different race
- Membership in or association with ethnic based organizations
- Cultural dress
- Manner of speech
Some Highlights: Color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity.
For Example: A “no-beard” employment policy that applies to all workers without regard to race may still be unlawful if it is not job-related and has a negative impact on the employment of African-American men (who have a predisposition to a skin condition that causes severe shaving bumps).
EEOC Discrimination Type – Religion: The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but others who have sincerely held religious, ethical or moral beliefs.
Some Highlights: Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.
For Example: Requiring
- All women to wear a short skirt discriminates against women of several different religions
- An employee forced to work at times that they cannot work because of their religion
EEOC Discrimination Type – Sex: Sex discrimination exists when a person or group of people are treated unfairly solely on the basis of their biological sex.
Some Highlights: According to Catalyst, 68% of women believe that sex discrimination exists in the workplace (2010). Over the past 15 years, the percentage of sex discrimination charges as a percent of all charges brought to the EEOC has remained fairly stable. Race discrimination is the only other complaint brought to the EEOC more often.
For Example: Discrimination against an individual because that person is transgender. Lesbian, gay, and bisexual individuals may bring sex discrimination claims.
EEOC Discrimination Type – Pregnancy: The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy.
Some Highlights: Pregnancy discrimination incudes unfavorable treatment to childbirth too, or a medical condition related to pregnancy or childbirth.
For Example: Not hiring or firing an employee because they are pregnant.
EEOC Discrimination Type – National Origin: The unfair treatment of an individual because they are from a particular country or part of the world, other than the United States – because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).
Some Highlights: National origin discrimination can include the home country of the employee’s ancestors.
For Example: Disciplining Latino employees more severely than white employees for unexcused absences and tardiness.
EEOC Discrimination Type – Age: The Age Discrimination in Employment Act (ADEA) forbids discrimination against people who are 40 or older. It does not protect workers under the age of 40, some states do have laws that protect younger workers from age discrimination.
Some Highlights: It is not illegal for an employer to favor an older worker over a younger one, even if both workers are age 40 or older. Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.
For Example: Refusing to promote an older worker.
EEOC Discrimination Type – Disability: Discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability.
Some Highlights: Discrimination can occur if an employee has a disabled child or partner.
For Example: Denying a disabled employee a reasonable accommodation.
EEOC Discrimination Type – Genetic Information: Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information.
Some Highlights: Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history).
For Example: Avoid hiring workers who believe are likely to take sick leave, resign, or retire early for health reason.
Recognize Harassment as a Form of Discrimination
Harassment is defined as any form of unsolicited, deliberately offensive behavior that has been requested to be stopped. This behavior can be physically violent or psychologically damaging. If someone says or does something to make your employees feel uncomfortable, or puts them at risk in any way, it constitutes harassment.
Once again, even in our modern workplaces, harassment persists. Sexual harassment is one of the most common forms and can include:
– Leering, i.e., staring in a sexually suggestive manner
– Making offensive remarks about looks, clothing, body parts
– Touching in a way that may make an employee feel uncomfortable, such as patting, pinching or intentional brushing against another’s body
– Telling sexual or lewd jokes, hanging sexual posters, making sexual gestures, etc.
– Sending, forwarding or soliciting sexually suggestive letters, notes, emails, or images
Take these Steps to Protect Yourself
- Make sure your Employee Handbook is up to date and includes all of the current anti-discrimination language – see August 2013 article.
- Select employees by objective standards. When interviewing candidates, base your choices on resume qualifications and references – not just on whom you like.
- Be sure to distribute and discuss your company’s anti-discrimination/harassment policies with all workers. The looming labor shortages will force you to cast a wider net for talent, implying greater diversity and the need to prepare and educate your current employees.
- Keep an open-door policy. You’re responsible for ensuring that you – and your managers – treat employees fairly.
- Recognizing and addressing appropriate behavior before it becomes a major issue will help prevent huge fallout.
- If you do receive notice that you are being charged with a legal complaint of any kind, do not ignore the notice or let it get lost. Be sure to take it seriously and handle it in a timely and professional manner.
- The best defense is a good offense, so keep detailed records of all grievances by and against employees so you’re prepared for the worst.
As a business owner, you determine how this narrative plays out. You must set the stage, direct the actions of others, and “show that you walk the walk”.
This content was developed for the PHCC Educational Foundation by TPO, Inc. (www.tpo-inc.com). Please consult your HR professional or attorney for further advice, as laws may differ in each state. Laws continue to evolve; the information presented is as of October 2013. Any omission or inclusion of incorrect data is unintentional. Please note this article is not intended to provide legal advice or to substitute for supervisor employment law training.
The PHCC Educational Foundation, a partnership of contractors, manufacturers and wholesalers was founded in 1987 to serve the plumbing-heating-cooling industry by preparing contractors and their employees to meet the challenges of a constantly changing marketplace. If you found this article helpful, please consider supporting the Foundation by making a contribution at http://www.phccfoundation.org.
Read Issue — PDF format, 506KB