Workplace discrimination is within the prohibited employment policies or practices.  Workplace discrimination is illegal whether it happens intentionally or unintentionally. It causes damage to its victim. Workplace discrimination may happen between employer and employee. It may also happen between employees or even between an employee and customer/client. Based on personal attributes rather than professional qualifications or merit, judging an employee amounts to workplace discrimination. It is illegal to discriminate against any person in the workplace based on the above. This is to encourage fair employment practices.

TYPES OF WORKPLACE DISCRIMINATION

#1. DISABILITY DISCRIMINATION:

It is illegal for an employer to refuse to a hire qualified disabled candidate or penalize disabled employees purely based on their disability. Employers must make reasonable accommodations for disabled employees unless doing so would cause significant difficulty or expense for the employer. The Americans with Disability Act of 1990 makes it illegal to discriminate against employees based on their disability.

#2. AGE DISCRIMINATION:

The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against people who are 40 years of age or older. It does not protect workers under the age of 40. An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees aged 40 or older. This applies unless the policy is based on any other factor other than age. Employees must receive the same benefits irrespective of age. An exception to this is where the cost of providing supplemental benefits to young workers is the same as providing reduced benefits to older workers.

#3. SEX AND GENDER DISCRIMINATION:

The Equal Pay Act, 1963 specifically states that job content and not title determines whether jobs are substantially equal. It is, therefore, illegal to pay men more than women based on sex and gender alone.

#4. RACIAL DISCRIMINATION:

This involves treating an employee differently because of race, skin color, ethnicity, or country of origin. The law prohibits giving an employee a job or task he/she is overqualified for. The Law also forbids passing such an employee over for a promotion or generally creating a hostile work environment on grounds of race.

PROVING DISCRIMINATION IN THE WORKPLACE

#1. DOCUMENTATION

A victim of workplace discrimination must-have documents as proof of the alleged fact of discrimination. Where this is not available, an employee should at least have credible witnesses who can, when required to, testify to the fact. These people must have witnessed an incident where the discrimination happened.

#2. THE MCDONNELL DOUGLAS TEST

Named after the famous Supreme Court decision in McDonnell Douglas Corp v Green 411 U.S. 792 (U.S. 1973). It requires an employee to prove, with evidence of employment, discrimination, or retaliation. It provides an opportunity for an employer to defend itself. An employer giving non-discriminatory reasons, with proof, for its actions helps achieve this. This test further requires the satisfaction of the following requirements:

  • The employee must establish a prima facie case of discrimination. He/she must show that he is a member of a protected class; or that he was qualified for and applied for an available position and despite his qualifications, he was rejected for the position and that the position remained available after the employee’s rejection and the employer continued to seek applicants from persons of the employee’s qualifications
  • The employer must produce evidence of a legitimate non-discriminatory reason for its actions. This is to discredit the facts as posited by the employee. If this is successful, then the presumption of discrimination arising from the facts stated by the employee becomes invalid.
  • The employee must present facts to show an inference of discrimination.

APPLICATION OF THE MCDONNELL DOUGLAS TEST IN WORKPLACE DISCRIMINATION CASES:

The California Supreme Court issued an opinion in Lawson v PPG Architectural Finishes, Inc. (S2 66001, Jan 27, 2022). It clarified that employees need not satisfy the McDonnell Douglas [Corp v Green (1973) 411 U.S. 792 (McDonnell Douglas)] Test to make out a case for unlawful retaliation or workplace discrimination. The test aims to give an opportunity to an employee who has faced discrimination in the workplace but does not have enough direct evidence. It allows such a person to have his day in court despite not having enough direct evidence. This test would not do justice if applied to every case of discrimination and if applied would frustrate the purpose of its creation.

NOTE THAT:

Contrary to the mistaken belief that the McDonnell Douglas is the only means of establishment of individual discrimination, the Test is rather a recognition of the general principle that any Title VII Plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion which is illegal under the Act. This test merely puts an additional quiver in the Plaintiff’s arrow that may be used to establish a prima facie case of discrimination but does not need to be used. The Plaintiff (the employee) may choose to prove his case the traditional way before a jury as is available in every type of case which furthers the civil rights of an individual.

ALSO NOTE:

Any insistence that a Plaintiff must satisfy the factors of a McDonnell Douglas Test in every discrimination case that has no direct evidence results in an elevated evidentiary standard for the Plaintiff to overcome as compared to Plaintiffs in other actions. He would have to satisfy the McDonnell Douglas Test as well as any other traditional method of proof. This has been categorically rejected. Plaintiff only has the burden to satisfy one or the other and not both.

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

The US Equal Employment Opportunity Commission (EEOC) is tasked by the United States Government with the responsibility of protecting individuals from any form of unfair employment practice. The laws enforced by the EEOC forbid discrimination in every aspect of employment. It is illegal to discriminate against anyone (whether an applicant or an employee) on the grounds of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

Title VII of the Civil Rights Act, 1964 also prohibits workplace discrimination and any form of unfair employment practice. This is also enforced by the EEOC.

HOW TO FILE A CHARGE FOR WORKPLACE DISCRIMINATION WITH THE EEOC

The laws enforced by the EEOC, except for the Equal Pay Act, require an employee to file a charge before filing a lawsuit for workplace discrimination. There are also time limits, depending on the place the discrimination took place. A charge can be submitted through the EEOC online public portal available on their website, it can be submitted in person by the victim or at a State or Local Fair Employment Practice Agency closest to the employee. Submission by mail is only possible where the employee has 60 days or less time to submit a charge timely. Charge submission by telephone is not allowed. The process can be started over the phone. Federal employees and applicants for federal jobs have a different complaint process.

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