Table of Contents
Table of Contents
Take care of your people and protect your business
What Is Employment Discrimination?
Employment discrimination occurs when someone is treated differently in an unfavorable way for a reason related to any protected class. The protected classes, as outlined by Title VII of the Civil Rights act of 1964, are race, color, religion, sex (including gender, sexual orientation, gender identity, pregnancy, etc) and national origin. Other federal protected classes include age, physical or mental disability, veteran status, genetic information and citizenship status. Many states have more discrimination laws. You’ll want to check your individual state to understand what you need to be aware of.
Why Is It Important for HR to Understand Employment Discrimination?
Employment discrimination can be obvious and it can be hidden. It’s important to know what to look for and what the laws are so we can protect our employees and companies.
- Protect employee rights. Every person has the right to feel safe and be treated equally and fairly at work. The U.S. Equal Employment Opportunity Commission (EEOC) enforces laws that prohibit discrimination to help protect people. HR needs to understand these laws to guide their organizations in best business practices to comply with them.
- Protect the company. If a company is not following the laws, they can get sued, either by an employee or the EEOC themselves. HR needs to understand what workplace discrimination is so they can recognize when it happens and know what to do should it occur. They can put procedures in place to prevent discrimination from happening and prevent retaliation by those who report it.
- Avoid ignorance. Whether you know the laws or not, you will be held accountable to them. If discrimination takes place, whether intended or not, intention doesn’t matter. If an employee feels discriminated against, they need to be taken seriously and the issue looked into.
Types of Employment Discrimination
Discrimination can manifest in a variety of ways. Sometimes it’s painfully obvious. In other situations, it’s more subtle and may be hard to spot. Here are a few examples.
Everyone has the right to practice their religion of choice. Treating someone differently because they are or are not part of a certain religion is illegal. This encompasses commonly known religions and lesser known religions that are coming to light every year. If someone has sincerely held religious, ethical, or moral beliefs, they are protected. This may involve accommodations the employee may need. For example, if their religion requires them to pray at certain times of day, they may need to take extra breaks. Does it affect their ability to do the job? As another example, employees may have stickers or wear items that promote their religion. If they aren’t a dress code violation, they are protected. Religious phrases may be used in the workplace, such as prayers, etc.
Pregnant women rarely disclose they are pregnant until they are offered the job or until they have to. According to the American College of Obstetricians and Gynecologists, 56% of pregnant women work full time during their pregnancy and 73% return to work within 6 months of giving birth. These statistics can create staffing issues which can create environments that too easily discriminate against them. To prevent this, there are several federal laws HR must be aware of, such as the Pregnancy Discrimination Act, the Americans with Disabilty Act, the Affordable Care Act’s break time for nursing mothers and FMLA. Some states may also have specific laws protecting pregnancy, so you will want to be familiar with your state’s regulations.
National Origin Discrimination
With the bombing of Pearl Harbor in 1941, we saw the American public react negatively towards Japanese Americans. These American citizens and immigrants were discriminated against because of their national origin. They were forced from their homes and unable to find work. In 2022, we saw similar discrimination with Russian Americans after Russia invaded Ukraine. Because of the actions of their country of origin, people living in the US were being targeted, harassed and discriminated against. The negative actions taken against them had nothing to do with their ability to do their job, but everything to do with their country of origin.
Strategies to Prevent Employment Discrimination
It’s important to be prepared and re-evaluate on a regular basis to make sure nothing needs to be changed. Discrimination laws are changing often, so be sure to routinely evaluate your prevention strategies.
Review Your Hiring Practices
Go over your job descriptions and make sure the TDRs (tasks, duties, and responsibilities) and KSAs (knowledge, skills, and abilities) are measurable items that are related to the job at hand. You don’t want to accidentally cause discrimination because of unrelated requirements. Try different recruiting methods that take out personal identifiers of the candidate so that only their qualifications show through. Ask the same interview questions for each candidate for the same role and make sure you know why your questions relate to the job.
Train With Clear Policies
Continuous and frequent training is another good way to prevent discrimination. Train all employees on what discrimination is and how to recognize it, prevent it and report it when they may have witnessed or been a victim of discrimination. Be familiar with the laws and have a clear training on policies so everyone is on the same page.
Build an Inclusive Culture
Building a culture based on respect and professionalism is an awesome way to include Diversity, Equity and Inclusion (DEI) initiatives. Be respectful of other cultures and differences in the workplace. Have team or group building activities that encourage employees to get to know each other and understand each other better.
Be Proactive and Act Quickly
Give employees avenues to report complaints and have a process in place to reinforce the training they’ve received. With a streamlined process, if you need to investigate a report, you can do so quickly and efficiently. The worst thing you can do with a discrimination investigation is wait to act. This will come back to hurt you if the situation goes to court.
How to Handle Employment Discrimination
Discrimination is a rampant issue in the workplace. As HR professionals, we need to guide and advocate for those who need it. Never make assumptions based on any protected class such as race, gender, religion, age or sexual orientation. Never assume someone isn’t able to do the job because you think they might be disabled. Remember: discrimination can also occur because through an employee’s relationship to someone of a protected class. We need to be on our A game to prevent this from happening.
Step 1: Preventative Measures
Review your policies. Your company should have a zero tolerance policy for any type of harassment and discrimination. Encourage a culture that is inclusive and set expectations for zero tolerance. Make sure you are providing consistent and updated training to everyone from your front line to the C suite.
Step 2: Have a Game Plan
Keep yourself informed! Train your team on what the procedure will be and who will handle what when a complaint comes your way. Who will you consult for help? What steps will you take to address the issue? How are you going to document your efforts? What laws do you need to review?
Step 3: Follow Through
Never assume you know what’s going on. If you receive a complaint, make sure you get all the facts and come full circle. If you need to re-interview someone, do it. If you find there are actionable items, make sure they get followed up on. Touch base with the person filing the complaint and ensure you can wrap up the complaint to the best of your ability.
Don’t Forget: Ask for Help!
There are plenty of options if you need help. Does your company have a senior HR representative you can talk to? Does your insurance broker have an HR consultant you can reach out to? Do you need to bring in a third party to ensure an unbiased discovery? Do you have employee relations specialists, or senior HR professionals in your network that can guide you? Remember, if you’re feeling overwhelmed, ask for help. Better to be safe than sorry.
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Questions You’ve Asked Us About Employment Discrimination
Heather is an experienced HR and Employee Relations professional with a strong background in compliance. Heather is an advocate for learning and enjoys mentoring others to help them grow and learn. As a Society for Human Resources Certified Professional (SHRM-CP), she earned her bachelor’s degree in Human Resource Management from Western Governors University and is currently obtaining her Juris Master in Employment Law and HR Risk Management from Florida State University. Heather currently serves on the Board of Directors for Utah State SHRM and has spoken at several conferences helping the new HR professionals with tips for success. She also is a mentor with LevelNext helping to educate others in HR as well as assisting with resume writing and social media optimization. When Heather is not spending time on her education or sharing her passion for the HR world, she can be found spending time with her family, playing pool, or helping create monsters for Fear Factory Haunted House here in Salt Lake as a part of the makeup team.