What Constitutes Discrimination in the Workplace?

Discrimination in the office

Discrimination is a fluid concept that is often misunderstood and misapplied. One of the difficulties is that discrimination can take many different forms and can apply to many different types of people. For example, discrimination can occur during a job application or with regard to raises and demotions. And discrimination can occur against women, men, minorities, people with disabilities, people of a certain religion or people older than a certain age.

History

Before 1964 discrimination was not an important part of the law in the United States. That was before the U.S. Congress passed the Civil Rights Act of 1964. The Civil Rights Act provided groundbreaking legal rules designed to protect against discrimination on the basis of race, color, national origin, religions and gender. After 1964, many states have adopted employment discrimination legislation, and the U.S. Congress has also adopted additional legislation protecting against other forms of discrimination.

Protected Class

Discrimination only applies to legally protected classes of people. Federal law--laws passed by the U.S. Congress that apply in all states)--protect against many types of discrimination, including pregnancy, age, disability, race, color, national origin, gender and religion. Most states also have laws that protect the same classes of people. Additionally, many states also protect against sexual orientation discrimination.

Tangible Action

The most common type of discrimination is called "tangible employment action." Tangible employment action occurs when an employee experiences a significant change in employment status. This would include such actions as refusing to hire, demoting, refusing to promote, refusing to grant a raise, diminishing pay or terminating.

Harassment

The other most common type of discrimination is referred to as either harassment or hostile work environment. Harassment occurs when the employer or a manager or supervisor of the employer makes comments or physical gestures that are outrageous and abusive to an employee within a protected class. Legitimate discrimination claims based on hostile work environment often include repeated slurs, derogatory language or physical contact. The actions must be severe and pervasive enough that a reasonably person would find the workplace abusive and hostile.

Illegal Connection

Discrimination is sometimes difficult to discern because the discriminator action must be directly connected to the protected class. If an employer is demeaning and verbally abusive, but the employer's actions have no connection to the employee's protected class, then the employer has not committed discrimination. For example, if an employer yells at a female employee, talks down to the female employee and refuses to promote the female employee, but the employer never says or does anything to reasonably suggest that the employer is acting that way because the employee is a woman, then the employer has not discriminated against the employee.

References

• Nolo: Preventing Workplace Discrimination and Harassment