Discrimination: Walking The Fine Line Without Breaking The Law

Discrimination is a complex issue that persists in various sectors, including employment, housing, education, and law enforcement. While it is unlawful to discriminate based on race, color, religion, sex, national origin, disability, or age, it is important to recognize that discrimination still occurs and often goes unreported. This is a concern for the Department of Justice's Civil Rights Division, as individuals may be unaware of their legal rights or afraid to speak up. Discrimination can manifest in subtle ways, such as neutral employment policies that disproportionately impact specific groups, or more overt forms, such as harassment or violent crimes. Understanding and exercising legal rights is crucial for combating discrimination and promoting equal opportunities for all.

Discrimination in hiring

A 2023 survey by hiring software company Greenhouse found that over one-third of candidates have experienced discriminatory interview questions, most commonly focused on their age, race, or gender. Almost one-fifth of job seekers tried to protect themselves against these discriminatory hiring practices by changing their names on applications.

A meta-analysis of 90 studies involving 174,000 total job applications from six Western countries (Canada, France, Germany, Great Britain, the Netherlands, and the US) found that, with few exceptions, rates of hiring discrimination have changed little since the 1990s. Applicants of colour from all backgrounds in the study had to submit about 50% more applications per callback on average, compared to white applicants.

To combat discrimination in hiring, employers should evaluate their workplace environment, structure, and activities. They can do this by organising heterogeneous work groups, creating interdependence, recognising the influence of salience, creating formalised evaluation systems, and taking accountability for actions.

Discrimination in promotions

In the United States, federal laws enforced by the Equal Employment Opportunity Commission (EEOC) make it illegal for employers to discriminate against employees or job applicants based on these protected characteristics. This includes decisions related to promotions. The EEOC prohibits employers from using neutral employment policies or practices that disproportionately negatively affect individuals or groups based on these characteristics unless they are job-related and necessary for the business.

To avoid discrimination in promotions, employers should ensure they have a strong, effective, and established promotion policy that follows the EEOC Uniform Guidelines on Selection Procedures. This policy should include neutral selection criteria, interview and promotion procedures, safeguards against adverse impacts on protected groups, and clear communication procedures.

Additionally, employers should develop systematic rules for eligibility, backed by a fair and consistent performance appraisal process. The promotion process should be kept fair and equitable, with a well-crafted job description and consistent criteria among similar positions. All interested employees should be interviewed, and communication about the promotion process and decisions should be clear and transparent.

It is also important to address any instances of discrimination. Employees who believe they are experiencing promotion discrimination should communicate their concerns to management and document instances of discrimination, as this can serve as evidence if a complaint or lawsuit is filed.

By following these steps, organisations can create an environment where promotions are handled fairly and employees seeking advancement have clear career paths to follow, reducing the risk of potential lawsuits.

Discrimination in pay

The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work. The jobs need not be identical, but they must be substantially equal. All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit-sharing, and bonus plans, life insurance, vacation and holiday pay, and benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay.

In addition to the protections offered by the Equal Pay Act, Title VII of the Civil Rights Act of 1964 also makes it illegal to discriminate based on sex in pay and benefits. This means that someone who has an Equal Pay Act claim may also have a claim under Title VII.

Other types of discrimination in pay are also prohibited by law. Title VII, the ADEA, and the ADA prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability.

To ensure compliance with equal pay laws, employers can evaluate the jobs that are substantially similar and assess whether employees performing those jobs are paid the same. Employers are also required to maintain records of job descriptions and wage rate history for each employee while employed and for a specified period after the employment ends.

Discrimination in discipline or discharge

The EEOC's Compliance Manual provides guidance on how to investigate charges of discriminatory discharge and discipline. Discharge is defined as the dismissal of an employee from their employment by the employer. Disciplinary actions are actions taken by the employer as a punishment against an employee for violating some company rule, practice, or policy. The most common disciplinary actions are reprimands, warnings, suspensions, and demotions.

When investigating a charge of discriminatory discharge or discipline, the EEOC will refer to its guidance on how to analyse a disparate treatment charge. Disparate treatment is when an employer treats someone less favourably than others because of their race, colour, religion, sex, national origin, age, disability or genetic information.

To establish a case of disparate treatment in discipline or discharge, the EEOC will look for comparative evidence, direct evidence of discriminatory motive, and statistical evidence. Comparative evidence involves identifying similarly situated individuals of a different race, colour, religion, sex, or national origin who were treated differently. Direct evidence of discriminatory motive could include statements or actions by supervisors or co-workers that indicate a bias based on protected characteristics. Statistical evidence could include data on the percentage of individuals from a particular racial or ethnic group employed by the respondent compared to their availability in the local area.

In addition to disparate treatment, some charges of discriminatory discharge or discipline may be analysed under the adverse impact theory of discrimination. Adverse impact occurs when an employer's neutral policy or practice disproportionately affects a particular group based on race, colour, religion, sex, national origin, age, disability or genetic information.

It is important to note that an employer may discharge or discipline an employee for any reason, as long as it is not based on a discriminatory motive or a result of an acknowledged policy that has an adverse impact on a protected group.

Discrimination in job advertisements

For example, a job ad seeking "females" or "recent college graduates" may discourage men and people over 40 from applying and may be considered illegal. Similarly, an employer relying on word-of-mouth recruitment by their mostly Hispanic workforce may be violating the law if it results in a disproportionately Hispanic set of new hires.

In the UK, the Equality Act 2010 prohibits discriminatory advertisements, which are defined as those that restrict jobs, goods, facilities, or services to people with particular protected characteristics, such as gender or age. However, there are limited exceptions, such as when an occupational requirement necessitates a specific protected characteristic for a role, like hiring an actor or dancer of a specific gender.

Overall, it is essential to recognize that discrimination in job advertisements is generally illegal and can have legal consequences. Job advertisements should focus on the skills, qualifications, and experience relevant to the position, rather than personal characteristics that are protected by law.

Frequently asked questions