Discrimination

Discrimination


Race/Color, National Origin, Religion, Sex

Title VII of the Civil Rights Act of 1964 made it unlawful for an employer with 15 or more employees to discriminate against an employee or prospective employee because of their race/color, national origin, sex, or religion. This type of discrimination can take two forms: disparate treatment or disparate impact.

Disparate Treatment

Disparate treatment discrimination occurs when an employer intentionally discriminates against an individual because they possess one of the protected characteristic. The employer’s motive for taking the adverse employment action against the employee or prospective employee is central to a determination of fault.Disparate impact discrimination on the other hand requires no motive to discriminated.



Disparate Impact

Disparate impact discrimination occurs when an employer’s facially neutral policy or procedure unduly burdens employees from one of the protected classes of individuals. The employer may have been attempting to act in the best interest of its employees and with no intent to discriminate when enacting the new rule or policy, but may still be liable under Title VII if, when applied, the rule has discriminatory effects. An employer can overcome liability for race, national origin, sex, and religion discrimination by showing it had a business necessity for the discriminatory policy or practice.

Employers should implement an anti-discrimination policy and educate their managers, supervisors, and employees about the consequences of discriminatory behavior in the workplace.Many states also have laws regarding discrimination in the workplace. Check with your state’s department of labor for more information.

Sexual Harassment

Title VII was amended in 1991 to include a prohibition against sexual harassment in the workplace, and since then, sexual harassment has become a major issue for employers. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. Sexual harassment falls into two categories: quid pro quo or hostile environment.

Quid pro quo harassment occurs when an individual of authority makes unwelcomed requests or demands a subservient employee to engage in sexually-based behavior in exchange for advancement, benefits, protection, etc., in the workplace or to prevent an adverse employment action, i.e., termination, demotion, onerous job duties, from taking place.

Hostile environment harassment occurs when an employee is subjected to the sexually explicit workplace conduct of a co-worker which creates an atmosphere that unreasonably interferes with work performance or creates an intimidating or unduly offensive work environment. An employer becomes liable for a hostile workplace environment if they knew or should have known about the harassment and failed to take any step to correct it.

As a protection from sexual harassment lawsuits, an employer is well served by instituting a written sexual harassment policy. The policy should, at minimum, clearly explain that sexually-based behavior and language is not permitted in the workplace, describe the discipline that will be administered to employees engaging in sexually-based workplace behavior, and define in detail the process by which an employee can report sexual harassment. Each employee should be given a written copy of the policy and should be required to sign a confirmation that they received and read the policy. A well-defined, distributed, and enforced sexual harassment policy is the best defense to sexual harassment claims.

Pregnancy Discrimination Act

The Pregnancy Discrimination Act (PDA) amended Title VII to prohibit employers from discriminating against an employee or prospective employee because they are pregnant. Employers are also required to treat any leave requests by pregnant employees the same as they would a disabled employee and hold open a job for an employee absent due to pregnancy for as long as they would for an employee on disability leave.

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