Imagine being at work and having a younger, newer hire get promoted over you. You’ve been doing jobs in that role for a decade, and this new hire has only been with the company for a year. You hear through the grapevine that it’s due to your age. The company knows you’re about 10 years from retirement.
You’ve been on maternity leave for the past six weeks. You’re ready to go back to work, but your manager calls you to say you’re off the schedule. When you ask why, they say they had to hire someone to replace you as your work duties piled up.
You see a job posting for a clothing retailer that intrigues you, but it says “You need not apply if you’re not between the ages of 18 and 35.” You’re over 40, so you don’t apply. That age requirement is a form of discrimination.
Each of those situations is an example of discrimination in the workplace. Shegerian Conniff wants you to know that employment laws do not just apply to current employees. The laws also protect job applicants. It’s important to understand the different types of discrimination and how to respond when you face discrimination in the workplace.
Identifying the Different Types of Workplace Discrimination
The first step to identifying employment discrimination is by knowing the laws. There are several types of workplace discrimination. Plus, each one may involve one of several discriminatory employment practices. Those practices involve actions like unequal pay, restriction of benefits, verbal or physical harassment, unfair lay-offs or firings, coercion or retaliation, failure to provide reasonable accommodations, and refusal to provide referrals.
Age
Age discrimination protects anyone age 40 or older from any discriminatory practice. It covers both employment ads and hiring practices to treatment and employee behavior in the workplace.
The actions must be severe enough that the work environment is considered hostile. If a contractor makes an “Okay, Boomer” statement once, that’s unlikely to qualify as age discrimination. If it happens often enough that the employee asks for it to stop and the actions increase instead, it’s a problem.
An unemployed worker sees a job ad that matches their skills and applies. The first question in the interview is “How old are you as we are looking for workers fresh out of high school.” That’s discrimination.
If a workplace sets a new rule that applies to everyone but is harder for people 40 or older, it’s also age discrimination. For example, a company makes it a rule that the use of magnifying glasses to read instruction sheets is no longer allowed on the floor. As older eyes have a harder time seeing fine print, this is discriminatory against older workers.
There are a few exceptions to consider. If an older worker is given a promotion over a younger, more qualified worker, reverse age discrimination is allowable. It might not seem fair, but the law only covers workers aged 40 or older. If both workers are 40 or older, the employee who doesn’t get the promotion cannot argue it was age discrimination. However, if the person who harassed or discriminated against an employee or applicant is also 40 or older, it’s still a discriminatory act.
Color/Race
Anyone of color or a different race is entitled to the same treatment as someone who is Caucasian. Refusing to hire or promote an Asian, Middle Easterner, Black person, Hispanic, etc. is illegal. If workers of color are refused pay raises while Caucasian workers get a 2.5% raise for the year, it’s discriminatory.
Disability
If you have a mental or physical disability and request or need accommodations to do your work duties, an employer needs to provide what you need. The only restriction is if it is too cost-restrictive and would financially harm your employer or prospective employer.
For example, you lost your hearing as a child. You need captioning or sign language during video meetings or a CART captioner to offer real-time transcription of the things people are saying in that meeting. If your employer refuses, it’s discriminatory.
Genetic Information
Your genetic information cannot be used against you when it comes to your job or potential employment. You learn your employer wants to terminate your position after you return from your dad’s funeral.
He had diabetes and heart disease, and your employer knows there can be a genetic link. Due to the increased cost of healthcare, your employer doesn’t want to deal with the difficulty of getting affordable insurance. That’s an example of genetic information discrimination.
National Origin
Your national origin is another way you can be discriminated against. How you look, sound, or dress to match your ethnicity is a protected right.
Suppose you apply for a job and arrive at the interview. Your hiring manager hears your accent and says they worry about customers understanding what you say, so they dismiss you. It’s discriminatory.
Pregnancy
Women who are pregnant, plan to become pregnant, or breastfeeding are protected from workplace discrimination. If a new mom needs time and a private space to breastfeed, it’s illegal for her management to deny her request. Accommodations are required unless it would cause the company financial harm.
You’re allowed to take time off if your pregnancy requires bed rest. You are entitled to time off after giving birth or adopting or fostering a child. You are also allowed to ask for accommodations, such as avoiding working around strong chemicals, while you’re pregnant. Your employer must do everything possible to accommodate you without decreasing pay or firing you.
Religion
People’s rights are protected if they follow the rules of their religion. For example, a worker who is a Jehovah’s Witness is given an alcoholic drink during an office gathering. When that worker states alcoholic beverages are against their religious beliefs, they’re ridiculed. Worse, one of their coworkers thinks it would be funny to mix vodka into their drink without their knowledge.
Religious discrimination also includes refusing to let a worker wear their hijab or turban. A worker is told to cut off his dreadlocks, a key component in Rastafarianism. Those are other examples of discriminatory acts.
Sex
Workers cannot be discriminated against due to their sex. This is a hazy area right now as the current administration is working to set two sexes – man and woman and eliminate all others. For now, it hasn’t passed so discrimination against anyone who is LGBTQIA+ is not allowed.
An example of sex discrimination is if a woman applies for a job in construction and is told that women don’t have the same strength and stamina as a man, so they only want male applicants. Or, a transgender worker is denied a promotion because the other workers don’t want to have to share a bathroom with that worker.
What About a Person’s Weight?
One question we hear is if an employer is allowed to call out your weight. For example, you applied for a job at a local café and the hiring manager said he doesn’t believe you’re capable of standing for six hours straight at your current weight. Or, the owners feel it would be too hard to find a uniform in your size, so they refuse to hire you even though you’re well-qualified.
Your coworkers often make weight-based jokes and demeaning comments that affect your comfort and mood at work. Is that discrimination?
Weight is not a protected characteristic under federal laws. However, if there is an underlying health or physiological issue that causes the weight gain, denying a job or harassing a worker due to their weight is a discriminatory act. In California, some cities, including San Francisco and Santa Cruz, have ordinances in place that protect against weight discrimination.
The only time weight should be considered is if the job duties require someone who is a certain size. For example, if the job requires someone to be able to get into a narrow area, such as the crawl space of a home. The employer could have a valid argument that size is an essential component of the work duties.
As this is one of those areas where it could be discriminatory, our advice is to consult with an attorney. The laws can be difficult to navigate when you’re not fully versed in the subject matter, but an employment law specialist has the answers and guidance you need.
Schedule a consultation with Sherigan Conniff today to better understand your rights and determine if you have been subjected to discrimination in the workplace.
