Hiring Laws: Private Companies And Anti-Discrimination Compliance

Discrimination in the workplace is a serious issue, and it is important to understand what constitutes unlawful behaviour. Federal anti-discrimination laws in the US protect employees from discrimination based on characteristics such as race, colour, religion, national origin, sexual orientation, gender identity, disability, age and genetic information. These laws apply to both public and private employers, with the US Constitution prohibiting discrimination by federal and state governments against public employees. While discrimination in the private sector is not directly addressed in the Constitution, it has become subject to a growing body of federal and state law.

Federal laws such as the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act, the Pregnancy Discrimination Act, and Title VII of the Civil Rights Act, among others, outline prohibited practices and provide protections for employees and job applicants. These laws are enforced by the Equal Employment Opportunity Commission (EEOC), which also provides oversight and coordination of federal equal employment regulations, practices and policies.

It is important to note that each state or jurisdiction may have its own laws and restrictions on what is deemed discriminatory, so employers and employees must familiarise themselves with the relevant legislation in their location.

What constitutes unlawful discrimination?

In the United States, anti-discrimination laws apply to private companies with 15 or more employees. These laws are enforced by the Equal Employment Opportunity Commission (EEOC).

Under the laws enforced by the EEOC, it is illegal to discriminate against someone (applicant or employee) based on their race, colour, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information.

Discrimination can occur during the application and hiring process, job assignments and promotions, discipline and discharge, and employment references. It is also illegal for an employer to publish a job advertisement that expresses a preference for or discourages someone from applying for a job based on the protected characteristics listed above.

Additionally, it is unlawful for an employer to make decisions about job assignments, promotions, discipline, discharge, or any other term or condition of employment based on stereotypes and assumptions about a person's protected characteristics.

Harassment in the form of slurs, graffiti, offensive or derogatory comments, or other verbal or physical conduct is also considered unlawful discrimination. Sexual harassment, including unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature, is prohibited.

The law also forbids the use of neutral employment policies and practices that have a disproportionately negative effect on applicants or employees belonging to a protected category.

Examples of Unlawful Discrimination

• An employer refuses to provide a sign language interpreter for a job applicant with a disability during the application process.
• An employer gives preference to employees of a certain race when making shift assignments or promotions.
• An employer disciplines two employees differently for a similar offense based on their national origin.
• A job advertisement specifies an age preference or limitation without a proven bona fide occupational qualification (BFOQ).
• An employer recruits new employees primarily through word-of-mouth from its mostly Hispanic workforce, resulting in a disproportionately Hispanic group of new hires.
• An employer requires employees to take a test that is not necessary or related to the job and excludes people with disabilities from taking the test.
• An employer pays Hispanic workers less than African-American workers because of their national origin.
• An employer denies training opportunities to African-American employees because of their race.
• An employer harasses an employee because of their sexual orientation or transgender status.

What are anti-discrimination laws?

Anti-discrimination laws are a set of rules and regulations that prohibit employers from treating workers or job applicants unfavourably based on specific characteristics. These characteristics are often referred to as "protected categories" and can vary depending on the jurisdiction. The aim of these laws is to ensure that all employees and job seekers are treated fairly and have equal opportunities, regardless of their personal attributes or affiliations.

In the United States, anti-discrimination laws are derived from common law and are codified in federal, state, and local laws. Federal anti-discrimination laws cover a wide range of areas, including recruiting, hiring, job evaluations, promotion policies, training, compensation, and disciplinary action. These laws are enforced by the Equal Employment Opportunity Commission (EEOC), which was established by the Civil Rights Act of 1964.

Some of the key federal laws that prohibit discrimination in the workplace include:

• Title VII of the Civil Rights Act of 1964 (Title VII): Prohibits discrimination based on race, colour, religion, sex, or national origin.
• Equal Pay Act of 1963 (EPA): Requires employers to pay men and women equally for performing the same jobs.
• Age Discrimination in Employment Act of 1967 (ADEA): Protects individuals who are 40 years of age or older from age-based discrimination.
• Americans with Disabilities Act of 1990 (ADA): Prohibits discrimination against individuals with disabilities in all areas of public life, including employment.
• Genetic Information Nondiscrimination Act of 2008 (GINA): Prohibits discrimination based on genetic information about applicants, employees, or former employees.
• Civil Rights Act of 1991: Provides monetary damages in cases of intentional employment discrimination.

It is important to note that each state or jurisdiction may have its own unique laws and restrictions on what is deemed discriminatory. Therefore, it is crucial for employers and employees to familiarise themselves with the specific laws and guidelines applicable to their location.

What are the consequences of workplace discrimination?

In the United States, anti-discrimination laws apply to both public and private employers. The US Equal Employment Opportunity Commission (EEOC) enforces these laws.

The Consequences of Workplace Discrimination

Workplace discrimination can have serious consequences for both employees and the business as a whole.

Employees

Discrimination can lead to various physical and emotional ailments for employees. It can cause higher stress levels, which in turn can result in health issues such as reduced quality of sleep, and over- or under-eating. Employees may also begin to doubt themselves and their abilities, and may struggle to interact with colleagues, even those who are not discriminating against them.

Business

Unfair treatment can also lead to financial loss and a decline in morale for the company. If an employee quits due to harassment, the business will have to spend money hiring and training a new worker. Even if the employee stays, the company may still lose money due to the need to hire a productivity consultant or legal aid to address the underlying issues.

Additionally, employees who feel they are not being treated fairly may start to resent the management team and other employees who benefit from the discrimination. This negative attitude can affect worker performance and, subsequently, the overall performance of the business.

Types of Workplace Discrimination

Workplace discrimination can take many forms, including:

• Direct discrimination: treating one employee less favourably than another because of an attribute such as age, gender, religion, disability, or sexual orientation.
• Indirect discrimination: imposing a requirement or practice that unnecessarily disadvantages a certain group, for example, banning beards, which could be a disadvantage for certain religious employees.
• Victimisation: treating someone less favourably than others because they have complained about discrimination based on a protected attribute.

How can employers prevent discrimination?

In the United States, anti-discrimination laws apply to both private and public employers. Federal laws enforced by the Equal Employment Opportunity Commission (EEOC) make it illegal for employers to discriminate against employees and job applicants on the basis of race, color, religion, sex, national origin, disability, or age.

Implement Company Policies and Foster a Positive Work Environment

It is important to establish company policies that promote a respectful and inclusive culture. Educate employees on all forms of discrimination and the adverse effects it can have on individuals and the organization as a whole. Construct an employee handbook that clearly outlines expectations, defines discrimination, and explains the potential disciplinary actions for engaging in discriminatory practices.

Provide Training and Workshops

Offer routine training sessions or workshops to address discrimination and ways to prevent and respond to it. Training allows employers to dispel historical misconceptions and prejudices, explain inappropriate language, and identify potential triggers that can create a hostile work environment. Training can also be an opportunity for team-building activities that boost communication and foster understanding among employees.

Encourage Reporting and Establish a Complaint Procedure

Create an environment where employees feel comfortable reporting incidents of discrimination. Establish an open-door policy and ensure employees know how to submit a complaint without fear of retaliation or adverse consequences. When a complaint is filed, conduct a thorough and timely investigation, document the process, and take appropriate disciplinary action.

Foster Open Communication

Maintain open lines of communication with employees to understand their experiences and address any concerns they may have about discrimination. Regular feedback will help employees feel valued and reassured that their best interests are being considered.

Respect Cultural Differences

Encourage employees to recognize and respect cultural and racial differences in the workplace. Avoid race-based or culturally offensive humor, and promote professional conduct and speech.

By taking these proactive measures, employers can create a discrimination-free work environment where employees feel safe, valued, and respected.

What are the protected characteristics?

In the United States, federal anti-discrimination laws enumerate specific characteristics that constitute protected classes. These include:

• Race
• Colour
• Religion
• Sex (including gender identity, sexual orientation, and pregnancy)
• National origin
• Age (40 or older)
• Disability
• Genetic information

These characteristics are protected under various federal laws, including the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act of 2008.

In addition to federal laws, some states and local jurisdictions have enacted further protections. For example, some states have taken steps to protect individuals from discrimination based on political beliefs, physical appearance, or income level, which are not protected under federal law.

In the UK, the Equality Act 2010 legally protects individuals from discrimination based on the following characteristics:

• Race, including colour, nationality, ethnic, or national origin
• Being married or in a civil partnership
• Being pregnant or on maternity leave

Frequently asked questions