More states are trying to protect black employees who want to wear natural hairstyles at work

"I like my natural hair now," said Cherie Scurry-Burns, a hairstylist in Washington, D.C. The natural hair "movement has made it a win-win. You’re still being yourself. You’re still protecting your hair. But you still have so many options to be somebody else."
 (Marvin Joseph/The Washington Post)
“I like my natural hair now,” said Cherie Scurry-Burns, a hairstylist in Washington, D.C. The natural hair “movement has made it a win-win. You’re still being yourself. You’re still protecting your hair. But you still have so many options to be somebody else.” (Marvin Joseph/The Washington Post)
September 19, 2019 at 7:00 a.m. EDT
Source: Washington Post article

In 2017, at a gala luncheon hosted at the opulent Cipriani 42nd Street in New York, Minda Harts found herself seated next to a recruiter for corporate board positions. Over cocktails and a plated fish entree, the two talked about race in the boardroom; the recruiter, a white woman, complained about the challenges of finding black women to be corporate directors.

To test how she’d respond, Harts, who founded a career development company for women of color and had a book on the topic released in August, asked the recruiter who she would feel more comfortable putting forward as a candidate for a board: a woman of color with a sleek ponytail, or one with a natural hairstyle such as locs or an Afro. The recruiter said the woman with the ponytail, Harts recalled. “The phrase she used was ‘clean-cut,’ ” Harts said.

Harts said she wasn’t altogether surprised, given the woman had said it was difficult to find black female directors. But it was a reminder that “these unconscious and conscious biases keep us from even having the opportunity to have a seat at the table. We haven’t even had the chance to introduce ourselves, and there [are] these assumptions of unprofessionalism,” Harts said.

“I’ll be honest with you: I wear my hair straight probably 99 percent of the time because, being in corporate America, I’ve seen how clients who have braids and natural hairstyles can be looked upon.”

Concern about the damage caused by heat and chemical straightening and the support offered by online communities are contributing to the latest iteration of the natural hair movement, with some black women adopting locs, braids, soft curls and otherwise embracing their cultural heritage.

"I love my hair. My hair is my baby in a lot of ways," Sam McGee said. "I take care of it like a child. It's a full time job. I love my hair now, but it's been a process to get to this point. For the longest time I thought if my hair wasn't straight then I wasn't pretty, and it came a lot from my mom, but she didn't mean it, she just didn't know how to deal with my natural hair. My hair is a beast. It's almost untamable. It takes discipline."  (Whitney Matewe)
“I love my hair. My hair is my baby in a lot of ways,” Sam McGee said. “I take care of it like a child. It’s a full time job. I love my hair now, but it’s been a process to get to this point. For the longest time I thought if my hair wasn’t straight then I wasn’t pretty, and it came a lot from my mom, but she didn’t mean it, she just didn’t know how to deal with my natural hair. My hair is a beast. It’s almost untamable. It takes discipline.” (Whitney Matewe)

Several states have recently taken steps to push employers, schools and the broader culture to move with them, and help dismantle a culture of discrimination experienced by black women and men who say they continue to face implicit or explicit pressures to conform, unwelcome comments or even outright discrimination.

New JerseyTennesseeMichigan, Wisconsin, Illinois and other states have proposed legislation to explicitly ban race-based hair discrimination — tackling a remaining loophole in the law governing discrimination in workplaces, schools and other public places. California and New York were the first to sign legislation into law in July, and New York City issued guidelines on the issue earlier this year.

The topic has gotten attention from Democratic presidential candidate Pete Buttigieg as well. “Hair discrimination is racial discrimination, and we ought to recognize that at the national level, too,” he said at Essence Fest, an event produced by the company behind the black women’s magazine.

The legislation is backed by lawmakers in at least eight states and by a coalition that includes the civil rights groups Color of Change, National Urban League and Western Center on Law & Poverty, as well as the marketing heft of beauty brand Dove. Unilever, which owns Dove and has pointed its focus toward society’s beauty standards for women and featured diverse figures in its campaigns, has also provoked consumer rage, including with a much-criticized ad for body wash.

Black hair has a long history of being politicized and stigmatized in the workplace — for men as well as women, said Lori Tharps, a professor at Temple University and co-author of “Hair Story: Untangling the Roots of Black Hair in America.”

“If a black person was going to be part of corporate culture, they would be expected to not only dress the part but dress their hair the part,” Tharps said.

She said the new laws are getting traction because the latest natural hair movement — which differs from the protest movements of the 1960s — has “almost normalized” natural hairstyles such as braids, twists and locs. “We have a critical mass now,” she said.

That’s been fueled by the Internet, particularly YouTube with its community and how-to videos about wearing natural hairstyles, said Gillian Scott-Ward, a psychologist in New York who directed a 2017 documentary on identity and natural hair.

“It allowed everyday people to document their natural hair journey — this is how I wash it; this is how I detangle it; this is how I deal with the fact that my mom wants to disown me; this is how I talk to my boss about it.”

At a time when diversity issues are getting more attention, employment lawyers say the new state laws did not face significant opposition from the business community. And they said that while some grooming policies may specifically prohibit certain styles, more common are general guidelines that call for “professional” or not “extreme” looks that can disproportionately lead to bias against black employees or students.

Such policies can have an unintended effect on some ethnic groups, said Corinn Jackson, an attorney at Littler Mendelson who represents employers.

Patricia Okonta, an attorney with the NAACP Legal Defense and Educational Fund, which was not involved in the coalition, said the legislation “recognizes that people should have access to opportunities and resources regardless of their hair texture and regardless of their race.”

Stories alleging hair-based discrimination have gone viral on social media, including Andrew Johnson, a New Jersey student-wrestler who was forced to have his locs cut; Kerion Washington, a Texas teen whose mother said he was not hired at Six Flags because of his hairstyle; and Brittany Noble Jones, a former news anchor in Mississippi who alleged that her decision to wear a natural hairstyle was a factor in her dismissal. In a Medium post, Noble Jones claimed her news director said her natural hair was “unprofessional and the equivalent to him throwing on a baseball cap to go to the grocery store.”

Sandra Daniels, a Six Flags representative, said in an email that the amusement park modified its grooming policy this spring and male employees “may now wear dreadlocks — provided, per our standard guidelines — they are well-groomed and do not extend past the bottom of the collar.” Nexstar Broadcasting and its station, WJTV-TV, said in a statement that it stood by its decision, and that Noble Jones was fired for other reasons. “Allegations that Ms. Jones’s employment was terminated for her choice of hairstyles have no basis in fact and are vigorously denied,” the company said.AD

Most related incidents don’t result in legal action, said Wendy Greene, a professor at Kline School of Law at Drexel University. Lawsuits are expensive and time consuming, and only a few states and municipalities “expressly prohibit appearance discrimination,” she said in an email. As a result, many lawyers will not advise that their clients pursue a lawsuit “in light of the restrictive interpretations of federal civil rights law” and the gaps in local protections the new laws are trying to fix.

Stories like that of Jones, the Alabama woman whose case was declined by the Supreme Court, were part of what led Dove to get involved, said Esi Eggleston Bracey, who leads beauty and personal care for Unilever in North America. Bracey spoke about the issue with the National Black Caucus of State Legislators last year, she said in an interview. “I am someone with textured hair and I’ve worn textured hair, and I’m very committed personally to driving this commitment,” she said.

California state Sen. Holly J. Mitchell (D), who wears her hair in locs, said Bracey’s talk resonated with her own experience and those of young black women in her district. She said her staff suggested drafting legislation, dubbing it the CROWN Act (“Create a Respectful and Open Workplace for Natural Hair”).

"It's just allowing your hair to be free," Vernita Bediako said. "I think if it curls, kinks, locs, then that's the form that it wanted to go in; not to put a product in your hair to conform to a style that society deems as appropriate or attractive. It's allowing your hair to be just that, your hair. I've always had locs, and I've always been incredibly in love with the way my hair is, even when I would get teased as a kid. Dreadlocks honestly give you a bout of courage to just step out and show people who you are; it causes you to be transparent."  (Whitney Matewe)
“It’s just allowing your hair to be free,” Vernita Bediako said. “I think if it curls, kinks, locs, then that’s the form that it wanted to go in; not to put a product in your hair to conform to a style that society deems as appropriate or attractive. It’s allowing your hair to be just that, your hair. I’ve always had locs, and I’ve always been incredibly in love with the way my hair is, even when I would get teased as a kid. Dreadlocks honestly give you a bout of courage to just step out and show people who you are; it causes you to be transparent.” (Whitney Matewe)

“It’s not just about hair. It’s about choice and about people being empowered to be who they are culturally in the workplace,” Mitchell said in an interview.

Dove’s efforts on the issue follow its long history of cause marketing campaigns focused on beauty standards but also come after an uproar that erupted in October 2017 over an online Dove ad. It depicted a smiling black woman taking off a skin-colored shirt to show a smiling white woman — an ad many found reminiscent of historically racist imagery. Amid strong backlash, Dove apologized and removed the post with the ad.

Bracey and Joy Collective, a marketing firm hired by Dove that noted Dove’s 2017 “embarrassing PR mishap” in text about the CROWN Act that it has since removed from its website, said the current efforts are not a direct response to past ads. “Dove has always been dedicated to championing women’s individual beauty so that it is respected and celebrated authentically,” Bracey said in an email. “When I joined Unilever in January 2018, my goal was and still is to create systemic change in the beauty industry and to celebrate beauty inclusivity.”

Employment lawyers say they won’t be surprised if more states adopt the provision or if businesses amend their policies. Companies with employees in multiple states “tend to look at the most restrictive state or state with the most protection” and use that as the default, said Natalie Fujikawa, an attorney for Fisher Phillips.

She will advise clients to do workplace training that includes discussions about bias or unwelcome comments around hair, conversations that could raise awareness and perhaps make more people comfortable with natural hair styles at work.

"Having my hair natural is such an experience because I get to be my raw, authentic self," Gabby Hayes said. "I remember once in high school a girl said, 'Gabby's hair is so nappy, even when she straightens it it's still nappy,' and I remember thinking, 'What does that mean and who taught you that that was okay?' " (Whitney Matewe)
“Having my hair natural is such an experience because I get to be my raw, authentic self,” Gabby Hayes said. “I remember once in high school a girl said, ‘Gabby’s hair is so nappy, even when she straightens it it’s still nappy,’ and I remember thinking, ‘What does that mean and who taught you that that was okay?’ ” (Whitney Matewe)

Some still aren’t. Harts recalls recently getting back from vacation with braided hair and not having time to get it blown straight before a meeting. “I felt uncomfortable — I felt people were judging me because of the narrative we’ve been told.”AD

Marie Smith, a lawyer in New Jersey, said she’s never been discriminated against at work but until recently wore a wig daily, in part to avoid comments or perceptions from co-workers in an office where there are no other black female attorneys. “For me it’s been more of a proactive thing,” said Smith, adding she was taught, growing up, to straighten her hair for an interview. “I’ve heard about too many bad reactions to natural hair to be willing to take that risk myself.”

But with the arrival of the new laws, she’s begun wearing more natural styles in the office. “It’s 2019,” she said. “I kept thinking about it — I was like, ‘Why am I putting myself through this?’ ”

Meanwhile, Lucrecia Johnson, an attorney in Washington, D.C., recalled the time she was working at a Big Law firm and a white colleague asked if her hairstyle — twists pinned up on top of her head — was “heavy” and then reached out to touch it. “I’m not a sideshow,” recalled Johnson, who has since founded her own firm. “When you see something you like on people, you don’t reach to touch it, you tell me you like my dress” or hair.

She thinks it’s great that states are passing such laws, but said lasting change will come from more awareness and cultural shifts. “It’s a hearts and minds thing,” she said. “The more it’s seen [in the workplace], the less likely someone will begin to question it. That’s when the real change will occur.”

Frontier Airlines Is Sued for Pregnancy Discrimination

Female pilots, flight attendants allege airline failed to accommodate pregnant and breast-feeding crew members

The complaints could have broader implications for the airline industry. PHOTO: DAVID ZALUBOWSKI/ASSOCIATED PRESS
Source: Wall Street Journal

When Renee Schwartzkopf, a flight attendant with Frontier Airlines, gave birth in 2017, she didn’t tell her employer that she planned to breast-feed her son after returning to work.

Ms. Schwartzkopf said she knew of another flight attendant who had asked to pump milk during flights and was told no. As the primary breadwinner in her family at the time, she couldn’t afford to lose her income if she requested permission and was denied, then forced to choose whether to quit or take unpaid leave.

Instead she pumped in airplane lavatories during or between flights, worried her milk was unsanitary or had spoiled while in storage, she said. The process was so stressful she stopped after a few months. “I was nervous and scared that someone might turn me in to the company, that I’d get fired or get in trouble,” the 35-year-old said.

Ms. Schwartzkopf is among eight women who sued Frontier on Tuesday in two lawsuits alleging pregnancy discrimination, one on behalf of pilots and one on behalf of flight attendants. In complaints that could have broader implications for the airline industry, the women say they faced “mounting obstacles once they became pregnant that forced them to make impossible choices between their families and their livelihood.”

Among the obstacles, they allege, were penalties for absences related to pregnancy, requirements to take unpaid leave before their due dates, and Frontier’s refusal to honor requests for temporary ground assignments or other accommodations so they could continue breast-feeding after returning to work, even though employees with other medical conditions received such accommodations.

“We are unable to comment on pending legal matters,” a Frontier spokeswoman said.

The airline industry has long struggled with gender discrimination, and its labor force remains one of the most segregated along gender lines. Of the 119,000 aircraft pilots and flight engineers employed in the U.S. in 2018, 9% were women, according to the Bureau of Labor Statistics. Three-quarters of the 104,000 flight attendants were women.

For many years, airlines subjected flight attendants to weight restrictions and forced them to resign if they got married or pregnant. Airlines maintained height requirements for pilots, effectively excluding many women from the profession.

The Affordable Care Act requires U.S. workplaces to offer break time for expressing breast milk along with private, non-bathroom spaces for that purpose, but the federal rules created several exemptions, including airlines.

They argue that Frontier violated the federal Pregnancy Discrimination Act, which was enacted in 1978 as an amendment to the Civil Rights Act of 1964, and several statutes in Colorado, where Frontier is based.

Most airlines now offer some paid leave for new parents, but in general, said Ms. Sherwin, “the industry is still behind other sectors in figuring out solutions outside of leave.”

Brandy Beck, one of the plaintiffs, said she knew she wanted to be a pilot as a little girl. Her mother was a flight attendant with a major airline and her father was an aircraft mechanic. “I watched my mom fly as well as have a family. I never considered having to make a choice until I was put in that position,” she says.

When Ms. Beck, now 45, was pregnant with her second child in 2014, she said the airline gave women up to four months of unpaid leave, allowing them to use accrued paid time off during those months. It offered no protocols or accommodations for pilots who were nursing mothers.

She said that when she asked for guidance from human resources, her questions were mostly ignored. She gleaned ideas from other women, but “it was almost like a secret society,” she said. “Everyone had a different story and a different arrangement. There was no consistency or policy.”

Like Ms. Schwartzkopf, she pumped milk in airplane lavatories. For pilots, that involves corralling a flight attendant to sit in the cockpit—two occupants must be there at all times, according to federal regulations—for 20 minutes or so.

Ms. Beck argues that Frontier and other airlines need clear policies that enable women to maintain their careers and incomes when they have children.

“If they want to get the best pilots, you want them to dig from the deepest pool they have, which is women as well as men,” she said.

 

What Makes a Work Environment Hostile?

Legal Guidelines Exist That You Need to Know to Define a Hostile Workplace

BY  

What constitutes a hostile work environment? Some employees believe that a bad boss, an unpleasant work environment, a rude coworker, failure to qualify for a promotion, or the lack of perks, privileges, benefits, and recognition can create a hostile work environment.

And, yes, admittedly, many of these issues do contribute to an environment that may not be especially friendly or supportive of employees. The environment without employee friendly offerings can be awful. A bad boss contributes particularly to an environment that employees may see as hostile.

Traditionally, bad managers took the brunt of the blame when employees quit their job. (More recent thinking is that a lack of career development and opportunity is a larger contributor.) All of these factors can make an environment seem hostile to an employee’s wants and needs. And, they are.

A boss who verbally berates you about your age, your religion, your gender, or your race is guilty of creating a hostile work environment. Even if the comments are casual, said with a smile, or played as jokes, this does not excuse the situation.

This is especially true if you asked the individual to stop and the behavior continues. This, by the way, is always the first step in addressing inappropriate behavior at work—ask the inappropriately behaving boss or coworker to stop.

    • The actions or behavior must discriminate against a protected classification such as age, religion, disability, or race.
    • The behavior or communication must be pervasive, lasting over time, and not limited to an off-color remark or two that a coworker found annoying. These incidents should be reported to Human Resources for needed intervention.
    • The problem becomes significant and pervasive if it is all around a worker, continues over time,
    • and is not investigated and addressed effectively enough by the organization to make the behavior stop.
    • The hostile behavior, actions, or communication must be severe. Not only is it pervasive over time, but the hostility must seriously disrupt the employee’s work. The second form of severity occurs if the hostile work environment interferes with an employee’s career progress. For example, the employee failed to receive a promotion or a job rotation as a result of the hostile behavior.
    • It is reasonable to assume that the employer knew about the actions or behavior and did not sufficiently intervene. Consequently, the employer can be liable for the creation of a hostile work environment.

Dealing With a Hostile Work Environment

The first step an employee needs to take if he or she is experiencing a hostile work environment is to ask the offending employee to stop their behavior or communication. If an employee finds this difficult to do on his or her own, they should solicit help from a manager or Human Resources.

When inappropriate behavior is coming from another employee, they are your best in-house resources. They also serve as your witness to the fact that you asked the offending employee to stop the behavior.

You want to put the offending employee on notice that their behavior is offensive, discriminatory, inappropriate, and that you won’t tolerate the behavior. (In the majority of cases, the employee will stop the behavior. They may not have realized the degree to which you found the actions offensive.)

These resources will help you address a hostile work environment before the hostility escalates. You can pick between dealing with difficult peopledealing with a bully, holding a difficult conversation, and practicing conflict resolution skills.

They will all help you increase your skill in dealing with the coworker creating your hostile work environment. These skills and ideas may be all that you need since many bullies are spineless when confronted.

Especially in instances where you have reported the behavior of a manager or supervisor to the appropriate manager or HR staff member, the behavior must stop. Additionally, the reported individual may not retaliate against you as a payback for your reporting of his or her improper behavior.

An employee who experiences a hostile work environment, and has attempted to make the behavior stop without success, though, should go to his or her manager, employer, or Human Resources staff. The first step in getting help is to ask for help. Your employer must have the opportunity to investigate the complaint and eliminate the behavior.

A later hostile workplace lawsuit you institute will flounder if the employer was unaware of the situation and had not been given the opportunity to address the behavior and hostile environment. This is in your hands because, in most workplaces, hostile, offensive behavior is noticed and addressed when it is obvious or seen by many employees.

Employees rarely need to address the behavior on their own. When the behavior is not widely viewed or if it happens only in secret without witnesses, you must bring the hostile behavior to your employer’s attention.

What Is Harassment?

Understanding and Addressing Harassment in the Workplace

harassment at work

Workplace harassment is unwelcome conduct from a boss, coworker, group of coworkers, vendor, or customer whose actions, communication, or behavior mocks, demeans, puts down, disparages, or ridicules an employee. Physical assaults, threats, and intimidation are severe forms of harassment and bullying.

Harassment also may include offensive jokes, name-calling, offensive nicknames, pornographic images on a laptop, and offensive pictures or objects. Interfering with an employee’s ability to do his or her work also is considered to be a form of harassment.

Employees can experience harassment when they are not the target of the harasser because of the negative work environment that can develop because of the harassment.

The Details

In all or some parts of the United States, demeaning another individual regarding a protected classification is illegal and discriminatory. As a form of employment discrimination, harassment can violate Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA).

Protected classifications of employees, depending on your state, can include:

  • Age
  • Race
  • Religion
  • National Origin
  • Sex or Gender
  • Gender Identity
  • Sexual Orientation
  • Physical or Mental Disability
  • Color
  • Pregnancy
  • Genetic Information
  • Weight

According to the U.S. Equal Employment Opportunity Commission, harassment becomes illegal when:

  • Putting up with offensive and unwanted actions, communication, or behavior becomes a condition of continued employment, or
  • The behavior is severe and pervasive enough to create a work environment that any reasonable individual would find intimidating, hostile, or abusive.

Harassment against individuals also is prohibited as retaliation for filing a discrimination charge, participating in a harassment investigation or lawsuit under these laws. The bottom line is that employees have a right to challenge employment practices that they believe constitute harassment.

Demeaning an employee for any aspect of their parental status, appearance, weight, habits, accent, or beliefs can be considered harassment and can add to a claim about a hostile work environment.

Employers avoid harassment charges when they create expectations in their workplaces that all employees will treat each other with respect, collegiality, fairness, honesty, and integrity.

How rampant is harassment?

There is no way to know for certain just how rampant various types of harassment are in the workplace. Undoubtedly, many go unreported to employers or the Equal Employment Opportunity Commission (EEOC). Others are adequately handled by employers without the need for government intervention.

The EEOC releases detailed breakdowns of workplace discrimination every year. In 2017, the EEOC handled 84,254 charges and secured more than $125 million for victims of discrimination in private, federal, state, and local government workplaces.

Specific reasons for charges being filed are detailed below in descending order. Some charges include more than one reason, so percentages add up to more than 100:

  • Retaliation: 41,097 (48.8 percent of all charges filed)
  • Race: 28,528 (33.9 percent)
  • Disability: 26,838 (31.9 percent)
  • Sex: 25,605 (30.4 percent)
  • Age: 18,376 (21.8 percent)
  • National Origin: 8,299 (9.8 percent)
  • Religion: 3,436 (4.1 percent)
  • Color: 3,240 (3.8 percent)
  • Equal Pay Act: 996 (1.2 percent)
  • Genetic Information Non-Discrimination Act: 206 (0.2 percent)

Preventing Workplace Harassment

In any case of workplace harassment, an employer’s behavior must meet a certain standard in the eyes of the law. Just posting an anti-harassment policy, while a positive step, is insufficient to prove that an employer took workplace harassment seriously.

Employers should develop policies that clearly define inappropriate actions, behavior, and communication. The workforce should be trained and educated through the use of examples, and the policy must be enforced.

If harassment is mentioned to a supervisor, observed by a supervisor, or committed by a supervisor, the employer is particularly liable if an investigation was not conducted.

A clear harassment policy gives employees the appropriate steps to take when they believe they are experiencing harassment. Companies must be able to prove that an appropriate investigation occurred and that perpetrators found guilty were suitably disciplined.

The Different Types of Harassment in the Workplace

man inappropriately touching female coworker at her desk

Workplace harassment is all too common. As victims are often unsure of what qualifies as harassment and what to do when they’re being harassed, it often goes unreported and continues to be an issue. Workplace harassment can ruin a great job and turn a company into a toxic and unproductive environment.

The “Me Too” movement has enhanced awareness of sexual harassment and many employers have reexamined and strengthened their policies and procedures. Victims have felt more comfortable reporting incidences of harassment. A recent ABC News-Washington Post poll indicated that 33 million U.S. women have been sexually harassed in work-related incidents.

Definition of Workplace Harassment

Workplace harassment is a form of discrimination that violates Title VII of the Civil Rights Act of 1964 and other federal regulations.

The Equal Employment Opportunity Commission (EEOC) defines harassment as unwelcome verbal or physical behavior that is based on race, color, religion, sex (including pregnancy), gender/gender identity, nationality, age (40 or older), physical or mental disability, or genetic information.

Harassment becomes unlawful when:

  1. Enduring the offensive conduct becomes a prerequisite to continued employment, or
  2. The conduct is severe or pervasive enough that a reasonable person would consider the workplace intimidating, hostile, or abusive. Also, if a supervisor’s harassment results in an obvious change in the employee’s salary or status, this conduct would be considered unlawful workplace harassment.

Some States and Companies Have Broader Definitions

Some states have statutes that prohibit discrimination or harassment on the basis of whether a person is a smoker. A handful of states, including Wisconsin and New York, along with some private companies have laws or policies that prohibit discrimination and harassment based on arrest records or convictions.

Illustration by Hugo Lin. © The Balance, 2018

Harassing conduct may include offensive jokes, slurs, name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive pictures, and more.

Workplace harassment isn’t limited to sexual harassment and doesn’t preclude harassment between two people of the same gender. The harasser can be your boss, a supervisor in another department, a co-worker, or even a nonemployee. Interestingly, the victim doesn’t necessarily have to be the person being harassed; it can be anyone affected by the harassing behavior. To file a valid harassment claim, you have to show that your employer tried to prevent and correct the harassing conduct and that the employee unreasonably rejected the employer’s corrective efforts.

Some states have broad definitions of what constitutes harassment. For instance, a court in Florida determined that “fat jokes” made about an obese employee violated the Americans With Disabilities Act. A New Jersey court ruled that a person could bring a claim for disability harassment based upon two remarks made about their diabetic condition.

Harassment at Job Interviews

In addition to harassment occurring in the workplace, harassment can also take place during a job interview. During an interview, employers should not ask about your race, gender, religion, marital status, age, disabilities, ethnic background, country of origin, or sexual preferences.

These are discriminatory questions because they are not relevant to your abilities, skills, and qualifications to do the job.

The Boundary for Acceptable Behavior

Sometimes it’s hard to tell whether if a situation qualifies as workplace harassment. Some common situations which count as workplace harassment include:

  • Pedro was a victim of workplace harassment when his boss repeatedly referred to him with reference to his country of origin and characterized his work negatively based on his heritage.
  • Ellen filed a claim with the EEOC because her boss restricted her to a receptionist role based on her appearance despite receiving her college degree and possessing the skills for an inside sales job. He repeatedly said that customers liked “having a looker up front.”
  • Bonnie was subject to workplace harassment when her supervisor asked her out for drinks on many occasions and told her that she could go a long way if she played her cards right with him.
  • Jane was uncomfortable with references to the sexual conquests of co-workers in the break room. She responded to this workplace harassment by mentioning her discomfort to one of the perpetrators with whom she had a rapport. He spoke to the others, and their behavior ceased.

The Law and Your Options

Laws regarding workplace harassment are enforced by the Equal Employment Opportunity Commission. Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with the EEOC.

However, prior to doing so, victims should usually make an effort to resolve the situation internally. One option is to reach out to the offending individual directly. Describe your feelings and the unacceptable language or behavior and request that it stop. Another option could involve contacting your supervisor for assistance if you are uncomfortable confronting the offender directly.

In cases where the perpetrator is your supervisor or if you are uncomfortable approaching her/him, you can contact either the Human Resources department or your supervisor’s boss and request redress. In addition, many organizations have designated an EEO or workplace complaint officer specializing in these issues who can be contacted for a confidential consultation.

Job applicants and other harassment victims may choose to consult a labor/employment attorney if other measures have not resulted in a satisfactory resolution. If so, be sure to select a lawyer with extensive experience and or a certification in employment law. Your local bar association will usually provide information about state certifications or ways to identify specialists.

Historically, some employers have urged victims to sign confidentiality agreements as part of the resolution process. Consult an attorney before relinquishing your rights.

Examples of Sexual and Non-Sexual Harassment

Example of sexual harrassment in the workplace

What is considered sexual harassment at work? And how does it differ from non-sexual harassment? Sexual harassment1 in the workplace is a form of discrimination that includes any uninvited comments, conduct, or behavior regarding sex, gender, or sexual orientation.

All employees – in any position, from management to entry-level or hourly staffers – should be aware of what qualifies as workplace harassment and avoid these behaviors or report them if they occur.

Sexual vs. Non-Sexual Harassment

Even though it’s the type of harassment that is most often reported, harassment in the workplace and hiring isn’t limited to sexual harassment. Other actions regarding religion, race, age, gender, or skin color, for example, can also be considered harassment if they interfere with an employee’s success or conjure a hostile work environment2 .

© The Balance, 2018

Examples of Sexual Harassment in the Workplace

It doesn’t matter who makes the offense. It could be a manager, co-worker, or even a non-employee like a client, contractor, or vendor. If the person’s conduct creates a hostile work environment, makes it difficult for an employee to work, or interrupts an employee’s success, it is considered unlawful sexual harassment.

Sexual harassment isn’t limited to making inappropriate advances. It includes any unwelcome verbal or physical behavior that creates a hostile work environment.

Here are some examples of sexual harassment in the workplace and information on how to handle it if you have been harassed at work.

    • Sharing sexually inappropriate images or videos, such as pornography or salacious gifs, with co-workers
    • Sending suggestive letters, notes, or emails
    • Displaying inappropriate sexual images or posters in the workplace
    • Telling lewd jokes, or sharing sexual anecdotes
    • Making inappropriate sexual gestures
    • Staring in a sexually suggestive or offensive manner, or whistling
    • Making sexual comments about appearance, clothing, or body parts
    • Inappropriate touching, including pinching, patting, rubbing, or purposefully brushing up against another person
  • Asking sexual questions, such as inquiries about someone’s sexual history or their sexual orientation
  • Making offensive comments about someone’s sexual orientation or gender identity

These are just a few examples of sexual harassment.

Bottom line: Any actions or words with a sexual connotation that interfere with an employee’s ability to work or create an uncomfortable atmosphere are considered sexual harassment.

It’s also worth noting that victims of the harassment may not be just the target of the offense, but anyone who is affected by the inappropriate behavior.

That is, a co-worker standing nearby when inappropriate sexual comments are uttered may be affected, even if the comments aren’t directed toward them.

Examples of Non-Sexual Harassment in the Workplace

Behavior such as making racist or negative comments can also be construed as workplace harassment. Offensive gestures, drawings, or clothing also constitute harassment.

You should address this sort of workplace bullying in the same way that you would sexual harassment – by reporting it to human resources and, if nothing is done, by filing a harassment claim with the EEOC.

Instances of workplace harassment include discrimination such as:

  • Making negative comments about an employee’s personal religious beliefs, or trying to convert them to a certain religious ideology
  • Using racist slang, phrases, or nicknames
  • Making remarks about an individual’s skin color or other ethnic traits
  • Displaying racist drawings, or posters that might be offensive to a particular group
  • Making offensive gestures
  • Making offensive reference to an individual’s mental or physical disability
  • Sharing inappropriate images, videos, emails, letters, or notes
  • Offensively talking about negative racial, ethnic, or religious stereotypes
  • Making derogatory age-related comments
  • Wearing clothing that could be offensive to a particular ethnic group

Non-sexual harassment isn’t limited to these examples. Non-sexual harassment includes any comment, action, or type of behavior that is threatening, insulting, intimidating, or discriminatory and upsets the workplace environment.

How to Handle Workplace Harassment

Should you feel like you have been harmed by sexual or non-sexual harassment in the workplace, there are steps you can take to file a harassment claim with the Equal Employment Opportunity Commission (EEOC).

In order to successfully file such a claim, however, you have to be able to prove that a) your employer tried to correct the harassing behavior, and b) that the employee responsible for the harassment refused to cease and desist.

Thus, it is vital that you first report the harassment to your employer’s human resources department as well as taking detailed notes of the dates, times, and nature of the incidents. If attempts to remediate the situation fail, you must file your claim with the EEOC within 180 days by mail, in person, or by calling 800-669-4000.

It’s Important to Know the Rules

When you’re job searching, it’s important to know that rules apply as to what employers can and cannot ask, related to some of the harassment examples listed above.

During an interview, employers should not be asking about your race, gender, religion, marital status, age, disabilities, ethnic background, country of origin, sexual preferences, or age. If this happens, it should serve as a red flag that you may not want to pursue your candidacy with this employer.

The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. 

Proving Discrimination

Source: Workplace Fairness

 

Anti-discrimination laws make it illegal for an employer to take adverse employment action against you if you are a member of a protected class, or category of persons. Not all types of discrimination are protected under the federal anti-discrimination laws. Also, while the federal laws protect you against workplace discrimination, it is often very difficult to prove that discrimination occurred.

There are several questions that you can ask yourself to help determine whether you were discriminated against and whether you will be able to prove that the discrimination occurred.

  1. What is discrimination?
  2. What are the different types of discrimination claims that I could bring?
  3. What evidence is needed to prove my employer intentionally discriminated against me?
  4. I don’t have direct evidence against my employer. How do I use circumstantial evidence to show that my employer discriminated against me?
  5. What if my employer denies discriminating against me?
  6. What can I do if my employer’s reason is a cover-up for discriminating against me?
  7. What evidence do I need if my employer’s seemingly neutral policy, rule or practice neutral practice had a discriminatory effect?
  8. What are the remedies if I win my discrimination case?


1. What is discrimination?

There are several federal laws that protect you from discrimination in the workplace. Each federal law makes it illegal to discriminate against certain categories of people, known as protected classes. Not all types of discrimination are protected under the federal laws. The federal anti-discrimination laws only protect you if you fall into a protected class or category. The protected classes differ under the various federal laws and are summarized below.

Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex.Title VII also makes it illegal to discriminate against women because of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.

The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against someone because of age. This law protects people who are 40 or older.

The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 make it illegal to discriminate against a person with a disability.

Some state and local laws also make it illegal to discriminate against someone on the basis of gender identity, immigration status, language, family responsibilities, sexual orientation, and/or genetic information. See what categories your state protects against in our Filing a Discrimination Claim page.

2. What are the different types of discrimination claims that I could bring?

If you believe you have been discriminated against based on your status as a member of a protected class or category, there may be several types of claims that you could bring.

Discriminatory Intent/Treatment
A discriminatory intent, or discriminatory treatment claim is when an employee is treated worse by an employer because of his or her status as a member of protected class or category.

Disparate Impact
A disparate impact claim is a type of discrimination based on the effect of an employment policy, rule or practice rather than the intent behind it. The anti-discrimination laws make it illegal for a seemingly neutral policy, rule or practice to have a disproportionate adverse affect on members of a protected class. For example, a strength requirement might screen out disproportionate numbers of female applicants for a job, or requiring all applicants to receive a certain score on a standardized test to be eligible for a promotion could adversely affect candidates of color.

Retaliation
A retaliation claim is when an employer retaliates against an employee who engages in conduct that the law protects, like making a complaint about discrimination, or reporting a safety hazard.See the Retaliation Page for more information about retaliation claims.

3. What evidence is needed to prove my employer intentionally discriminated against me?

There are two types of evidence that can be used to prove discrimination: direct and circumstantial.

Direct Evidence
Direct evidence is the best way to show that discrimination occurred. Direct evidence of discrimination includes statements by managers or supervisors that directly relate the adverse action taken against you to your protected class status.

For example, if your employer tells you that you are being let go because you are near retirement age and the company wants to go with a younger image, you have direct evidence that your protected class status was the cause of your termination. This evidence can be in the form of verbal comments or statements written in letters, memos, or notes.

Circumstantial Evidence
The likelihood of obtaining direct evidence of discrimination is extremely slim. Supervisors and other company personnel are too sophisticated and too well-trained by their own attorneys to openly express their biases and prejudices. In almost every case, an employee must rely on circumstantial evidence to create a presumption of discrimination.

4. I don’t have direct evidence against my employer. How do I use circumstantial evidence to show that my employer discriminated against me?

According to the “McDonnell-Douglas Test,” named for a famous Supreme Court decision, an employee must first make out at least a “prima facie case” to raise a presumption of discrimination. To make out a prima facie case of discrimination, an employee must be able to answer “yes” to the following four questions:

  • Are you a member of a protected class? For example, if you are claiming age discrimination, are you over 40? If you are claiming disability discrimination, are you disabled?
  • Were you qualified for your position? For example, if your job required you to be a licensed technician, were you licensed?
  • Did your employer take adverse action against you? Adverse action includes hiring, promotions, termination, compensation and other terms and conditions of employment.
  • Were you replaced by a person who is not in your protected class (or, in the case of age discrimination, someone substantially younger than you)? For example, if you are disabled, were you replaced by someone who is not disabled?

If you can show at least these things, the law will presume, since you were qualified for your job and then discharged in favor of someone not in your protected class, that your protected class status was the reason for the adverse action.

The “circumstantial evidence” test is flexible. It has been modified over time to avoid a mechanistic approach to discrimination cases. A person claiming discrimination who does not have direct evidence of discrimination must produce enough circumstantial evidence of discrimination to allow a jury to find that the employer acted discriminatorily. The law recognizes that persons can be discriminated against even if they were not replaced by someone outside of the protected class, for example during a reduction in force.

An employee may have sufficient circumstantial evidence to prove discrimination if they are able to answer “yes” to several of the following questions:

  • Were you treated differently than a similarly situated person who is not in your protected class?
  • Did managers or supervisors regularly make rude or derogatory comments directed at your protected class status or at all members of your class and related to work? For example, “Women don’t belong on a construction site” or “Older employees are set in their ways and make terrible managers.”
  • Are the circumstances of your treatment so unusual, egregious, unjust, or severe as to suggest discrimination?
  • Does your employer have a history of showing bias toward persons in your protected class?
  • Are there noticeably few employees of your protected class at your workplace?
  • Have you noticed that other employees of your protected class seem to be singled out for adverse treatment or are put in dead-end jobs?
  • Have you heard other employees in your protected class complain about discrimination, particularly by the supervisor or manager who took the adverse action against you?
  • Are there statistics that show favoritism towards or bias against any group?
  • Did your employer violate well-established company policy in the way it treated you?
  • Did your employer retain less qualified, non-protected employees in the same job?

If you answered, “Yes” to the four questions in the McDonnell-Douglas Test and to several of the questions above, you may be able to establish a presumption that your protected class status caused the adverse employment action.

No single piece of evidence is usually enough to prove discrimination. On the other hand, there is no “magic” amount or type of evidence that you must have to prove discrimination.

5. What if my employer denies discriminating against me?

Once you establish a presumption of discrimination, consider the reason that your company gave for terminating you.

In court, an employer has the opportunity to offer a legitimate, non-discriminatory reason for its conduct. The law only requires the employer to articulate, or state, a reason for its conduct. It does not have to prove that it is the true reason.

A company can almost always come up with some reason for the action that it took. Once the employer articulates this reason, your presumption of discrimination is gone and you will have to offer additional evidence, as discussed further below.

If the employer cannot offer a legitimate reason for your termination, the presumption remains and you have proven a case of discrimination. However, don’t count on this happening. You may think, “My employer can never come up with a good reason for firing me!” Recall, however, that your employer doesn’t need a “good” reason, just any reason besides your protected status. The vast majority of employers can do this.

6. What can I do if my employer’s reason is a cover-up for discriminating against me?

Assuming that your employer can offer any explanation at all for terminating your employment, you must next consider whether you can prove that the reason is just a pretext, a cover-up for discrimination. You may be able to prove that the employer’s stated reason is just a cover-up or pretext for discrimination if you can prove any of the following:

  • The stated reason is factually untrue
  • The stated reason is insufficient to have actually motivated your discharge
  • The stated reason is so riddled with errors that your employer could not have legitimately relied upon it
  • Your protected status is more likely to have motivated your employer than the stated reason
  • Powerful direct or circumstantial evidence of discrimination

In order to successfully challenge your employer’s denial, the law requires you to prove that your employer’s stated reason is false AND that your protected status played a role in your termination.

7. What evidence do I need if my employer’s seemingly neutral policy, rule or neutral practice had a discriminatory effect?

Proving a disparate impact case is similar to proving a discriminatory intent case. First, you must use circumstantial evidence to create a presumption that the employer’s seemingly neutral policy, rule or practice had a discriminatory effect on a protected class or category. Next, your employer then has the opportunity to show that the policy, rule or practice was a job-related business necessity. If your employer is able to show that the policy, rule or practice was a business necessity, then you can still win if you are able to prove that your employer refuses to adopt an alternative policy, rule or practice with a less discriminatory effect.

8. What are the remedies if I win my discrimination case?

  • Back Pay. Back pay is lost earnings resulting from the discrimination from the date of the discriminatory act to the date of a judgment.
  • Front Pay.Front Pay is lost future earnings resulting from the discrimination.
  • Lost Benefits. Lost benefits may include health care coverage, dental insurance, pension or 401k plans, stock options, and profit sharing.
  • Emotional Distress Damages. Emotional distress damages, which are also called pain and suffering, are mental or emotional injuries as a result of the discrimination.
  • Punitive Damages. Punitive damages are intended to punish the employer for particularly egregious conduct.
  • Attorneys’ Fees. In addition to the damages you can recover for your injuries, you can also win an award of attorneys fees, expert witness fees, and court costs.

 

This selection was originally excerpted from Job Rights and Survival Strategies by Paul H. Tobias and Susan Sauter.

National Origin Discrimination

Source: Workplace Fairness

Whether an employee or job applicant’s ancestry is Mexican, Russian, Filipino, Iranian, American Indian, or any other nationality, individuals are entitled to equal access to employment opportunities. Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate on the basis of national origin. This law applies to employers with 15 or more employees. It forbids discrimination based upon an individual’s birthplace, ancestry, culture, linguistic characteristics (common to a specific group) or accent. It also applies to individuals married to or associated with persons of a particular national origin, membership or association with specific ethnic promotion groups, attendance or participation in schools, churches, temples, or mosques associated with a national original group, or a surname associated with a national origin group. This section will explain national origin discrimination in greater detail. A subset of national origin discrimination is language discrimination. For more information on that please see our language discrimination page.

1. What is national origin discrimination?

2. Which federal laws cover national origin discrimination?

3. Who is protected under the law?

4. Which employers are covered by the law?

5. Can I be discriminated against because my spouse and friends are of different nationalities?

6. Can I be discriminated against because of the color of my skin?

7. Can a job application ask me to identify my national origin?

8. Can an employer choose employees of one national origin over another?

9. Can I be asked if I am a citizen?

10. I am a non-citizen with valid work papers. Can I be denied employment because my employer prefers to hire only citizens?

11. My employer’s clients and customers do not like people who “look foreign.” Can I be reassigned or denied a job based on their preferences?

12. Can I be asked to take an English test?

13. Can an employer refuse to hire me or give me negative reviews for speaking with an accent?

14. Can I be asked not to speak my native language at work?

15. Can I be asked not to wear the clothing of my native country at work?

16. Are ethnic jokes or slurs about my national origin against the law?

17. Can I be assigned a particular kind of job, or to a certain neighborhood or territory because of my national origin?

18. Who enforces the law?

19. How can I file a complaint?

20. What are the remedies available to me?

21. How much time do I have to file a charge of discrimination?

22. More Information About National Origin Discrimination

1. What is national origin discrimination?

When an individual is treated differently because of the country where they were born, their ancestry, culture, linguistic characteristics (if common to a specific ethnic group) or accent, they have been discriminated against on the basis of their national origin. An employment action based upon any of these things constitutes illegal discrimination. Discrimination of this kind goes beyond ia single individual’s characteristics.

National origin discrimination also includes discrimination based on:

  • marriage to, or association with, persons of a national origin group;
  • membership in, or association with, ethnic promotion groups;
  • attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or
  • a family name associated with a national origin group.

Some examples of national origin discrimination include:

  • Affiliation: Harassing or otherwise discriminating because an individual is affiliated with a particular religious or ethnic group. For example, you are harassed because you are Arab or practice Islam, or are paid less than other workers because you are Mexican.
  • Physical or cultural traits and clothing: Harassing or otherwise discriminating because of physical, cultural, or linguistic characteristics, such as accent or dress associated with a particular religion, ethnicity, or country of origin. For example, you are harassed by coworkers for wearing a hijab (a body covering and/or head-scarf worn by some Muslims), not hired because you have a dark complexion and an accent believed to be African. Height and weight requirements can also be evidence that an employer discriminates against a specific national origin, if the requirements do not relate to the job.
  • Perception: Harassing or otherwise discriminating because of the perception or belief that a person is a member of a particular racial, national origin, or religious group, even if the person is not. For example, you’re a Chinese woman not hired because the hiring official believed that you were from Vietnam, or you are a Sikh man wearing a turban harassed by a coworker because the harasser thought you were Muslim.
  • Association: Harassing or otherwise discriminating because of an individual’s association with a person or organization of a particular religion or ethnicity. For example, you are harassed because your husband is originally from Afghanistan, or you are not promoted because you attend a mosque.

If any of these things have happened to you on the job, you may have suffered national origin discrimination. Some workers experiencing national origin discrimination may also experience other forms of illegal discrimination as well, such as discrimination based on immigration or citizenship status discriminationrace or religion.

2. Which federal laws cover national origin discrimination?

Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon national origin. This extends to recruitment efforts, hiring, firing, or layoffs, based upon national origin.

The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), is a federal law covering almost all immigration matters. It protects individuals from employment discrimination based on immigration or citizenship status, and prohibits document abuse discrimination, which occurs when employers request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents, or specify certain documents over others.

While employees are also covered by many other workplace laws, these are the main federal laws that protect workers against discrimination based on national origin. Your state may also include national origin, or other similar qualities, such as “ancestry,” “place of birth” in its antidiscrimination law. For more information about what is covered by your state law, see our page on filing a complaint.

3. Who is protected under the law?

IRCA’s anti-discrimination provision prohibits discrimination against “protected individuals,” who include citizens or nationals of the United States, permanent residents, lawful temporary residents, refugees, and asylees.

U.S. citizens, U.S. nationals, and authorized non-citizens are protected from discrimination on the basis of national origin, if the employer employs more than 4 employees. While Title VII covers only those workplaces where the employer employs more than 15 employees, INA/IRCA prohibits discrimination on the basis of national origin in workplaces where the employer employs between 4 and 14 employees. Some states also make it illegal to discriminate on the basis of national origin. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.

The law’s protections apply to both current workers and job applicants. If you are a current employee and are fired or not promoted due to your national origin, you are protected under the law. If you are not hired due to your national origin, you are also protected under the law.

4. Which employers are covered by the law?

All employers with 4 or more employees are covered by the laws against national origin discrimination. While Title VII covers only those workplaces 15 or more employees, INA/IRCA prohibits discrimination on the basis of national origin in workplaces with between 4 and 14 employees. The only difference between the two antidiscrimination provisions relates to which governmental agency enforces the laws against your employer. Some states also make it illegal to discriminate on the basis of national origin. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.

5. Can I be discriminated against because my spouse and friends are of different nationalities?

No. The law prohibits discrimination based on your association with someone of a different national origin.

For example, if you are a Caucasian U.S. citizen, but your spouse and most of your friends are Middle Eastern, you may not be discriminated against because of your association with people of Middle Eastern origin, and may have a valid discrimination claim if you can prove you were discriminated against for this reason.

6. Can I be discriminated against because of the color of my skin?

No. Title VII specifically prohibits employment discrimination based on color, as well as race, religion, sex, and national origin. Whether you suffer discrimination due to skin color typically associated with your race or national origin, or are harassed due to an skin color not typical for your race or national origin, both are against the law.

7. Can a job application ask me to identify my national origin?

Some applications may ask you to identify your national origin for purposes of diversity, or compliance with governmental contracting requirements or a valid affirmative action plan. However, it should be completely voluntary for you to comply.

8. Can an employer choose employees of one national origin over another?

In some limited circumstances, employers are allowed to prefer one national origin to another. This is allowed only when national origin is what is called a “bona fide occupational qualification” for the position, which means that belonging to a certain national origin is necessary for the job.

For example, being of Latin origin might be a bona fide occupational qualification for a role in a movie featuring a Cuban family. Circumstances in which preferences for one national origin are allowed are very rare. The employer must be able to demonstrate the position has special qualifications that only members of one national origin can fulfill.

9. Can I be asked if I am a citizen?

An employer should not ask about your citizenship status during a job interview. The employer can only notify you as a job applicant that, should a job be offered to you, you will be expected to provide evidence that you are legally entitled to work in the US within the first three days of starting work. The employer should say this to every job candidate, as saying this selectively may be illegal discrimination.

10. I am a non-citizen with valid work papers. Can I be denied employment because my employer prefers to hire only citizens?

Generally not. A “U.S. citizens only” policy in hiring is illegal. An employer may require U.S. citizenship for a particular job only if it is required by federal, state, or local law, or by government contract.

11. My employer’s clients and customers do not like people who “look foreign.” Can I be reassigned or denied a job based on their preferences?

No. Client or customer preferences do not allow your employer to engage in illegal discrimination. Refusing to hire someone because customers or co-workers may be “uncomfortable” with that person’s national origin is just as illegal as refusing to hire that person because of religion or national origin in the first place. Similarly, an employer may not fire someone because of national origin. This prohibition applies to other employment decisions as well, including promotion, transfers, work assignments and wages.

12. Can I be asked to take an English test?

Your employer or potential employer can test an employee on English proficiency (ability to speak or write in English), as long as the the employer tests all applicants. However, if the employer or potential employer denies someone an employment opportunity because of English proficiency, the employer must show a legitimate, nondiscriminatory reason. Whether or not it is illegal to use the English test will depend on the qualifications of the employee, the nature of the position, and whether the employee’s level of English proficiency would have a negative effect on job performance. Requiring employees or applicants to be fluent in English may violate the law if the rule is not related to the requirements of the position or job performance, and it appears that the rule was adopted to exclude individuals of a particular national origin. For more information about language discrimination, please see our language discrimination page.

13. Can an employer refuse to hire me or give me negative reviews for speaking with an accent?

An employer must show a legitimate, nondiscriminatory reason for denying an employment opportunity because of an individual’s accent or manner of speaking. Whether the denial is illegal will depend on the qualifications of the person, the nature of the position, and whether the employee’s accent or manner of speaking harmed, or would harm, job performance. Requiring employees or applicants to be fluent in English may violate Title VII if the rule is adopted to exclude individuals of a particular national origin and is not related to job performance. For more information about language discrimination, please see our language discrimination page.

14. Can I be asked not to speak my native language at work?

A rule requiring employees to speak only English at all times on the job may violate the law, unless an employer shows it is necessary for conducting business. If an employer believes the English-only rule is critical for business purposes, employees have to be told when they must speak English and the consequences for violating the rule. Any negative employment decision based on breaking the English-only rule will be considered evidence of illegal national origin discrimination if the employer did not tell employees of the rule. See our page on language discrimination for more information.

15. Can I be asked not to wear the clothing of my native country at work?

Wearing the clothing of your native country can be an expression of your national origin, as well as your race or religion. Discrimination or harassment on any of these bases is against the law.

Your employer may try to justify denying you the ability to wear your native or religious clothing at work based on concerns about offending or losing customers. However, customer preference is never a justification for a discriminatory practice. Refusing to hire someone because customers or co-workers may be “uncomfortable” with that person’s religion or national origin is just as illegal as refusing to hire that person because of religion or national origin in the first place. Similarly, an employer may not fire someone because of religion and/or national origin. This applies to other employment decisions as well, including promotion, transfers, work assignments and wages.

If your employer wants to lawfully prevent you from wearing this clothing, the employer would need to show that allowing you to wear this clothing would pose an undue hardship on the business. Real or perceived customer preference would rarely, if ever, meet the undue hardship standard. According to some courts, to bring a discrimination claim on this basis, you would need to show, in addition to your employer’s act of discrimination, that you were harmed by your employer’s actions, such as assigned to a position of less responsibility or pay.

If you have been asked to remove or not wear clothing that is part of your national or religious identity, you may want to ask your employer to be allowed to wear this clothing. If you are denied, you should consult with an attorney, federal or state antidiscrimination agency, or shop steward or grievance person (if you are a union member) first before either wearing the clothing or risking employer discipline.

16. Are ethnic jokes or slurs about my national origin against the law?

Title VII prohibits offensive conduct, such as ethnic slurs, that create a hostile work environment based upon national origin. Employers are required to take appropriate steps to prevent and correct unlawful harassment. Likewise, employees are responsible for reporting harassment at an early stage to prevent its escalation.

17. Can I be assigned a particular kind of job, or to a certain neighborhood or territory because of my national origin?

It is against the law to limit, segregate, or classify employees or applicants for employment in any way which would deprive them of employment opportunities or otherwise adversely affect their employment status, because of their national origin, race, color, religion, or sex.

Therefore, an assignment or placement based on your national origin or race that negatively affects your pay, status in the company, or ability to advance would be against the law. An assignment made for legitimate, nondiscriminatory reasons and that does not negatively affect you would be legal.

18. Who enforces the law?

The Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) is responsible for investigating charges of job discrimination related to an individual’s national origin in workplaces with 4 to 14 employees.

The Equal Employment Opportunity Commission (EEOC) is responsible for investigating charges of job discrimination related to an individual’s national origin in workplaces of 15 or more employees.

Many states also have laws against national origin discrimination, generally enforced by a state anti-discrimination agency. The minimum number of employees necessary to file a claim varies. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.

19. How can I file a complaint?

Trying to determine where to file first can be complicated, because there are many agencies that process claims of discrimination based on national origin. Here are some basic principles to follow, depending on the size of your workplace:

  • If there are 15 or more employees in your workplace, see our page on filing a complaint.
  • If there are 4-14 or more employees in your workplace, consult OSC and your state anti-discrimination agency. To find out if the law in your state covers workplaces of this size, please see our page on the minimum number of employees needed to file a claim under your state law.
  • If there are three or fewer employees in your workplace, consult your state anti-discrimination agency. To find out if the law in your state covers workplaces of this size, please see our page on the minimum number of employees needed to file a claim under your state law. If it does not, then you will probably not be able to file a legal claim, but you should check with a local attorney to make sure.

20. What are the remedies available to me?

Victims of national origin discrimination at workplaces of 4 to 14 employees can recover back pay, job offers and reinstatement. OSC settlements require employers to stop discriminatory practices, pay civil penalties, undergo monitoring, and receive anti-discrimination training.

Victims of national origin discrimination at workplaces of 15 or more employees can recover remedies that include:

  • back pay
  • hiring
  • promotion
  • reinstatement
  • front pay
  • compensatory damages (emotional pain and suffering)
  • punitive damages (damages to punish the employer)
  • other actions that will make an individual “whole” (in the condition he or she would have been but for the discrimination)

Remedies also may include payment of:

  • attorneys’ fees
  • expert witness fees
  • court costs.

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case.

Your state law may allow for greater or different remedies than federal law (see our page on filing a complaint).

21. How much time do I have to file a charge of discrimination?

To protect your legal rights, it is always best to contact a state or federal adminstrative agency or an attorney soon after discrimination is suspected.

For workplaces with 4-14 employees, a charge must be filed with OSC within 180 days from the date of the alleged violation.

For workplaces with 15 or more employees, please note that all laws enforced by EEOC require filing a charge with EEOC (or a cooperating state agency) before a private lawsuit may be filed in court. Many states also require that you file first with a state anti-discrimination agency or EEOC. There are strict time limits within which charges must be filed.

See our page on filing a complaint for more information.

22. More Information About National Origin Discrimination:

On June 2, 2016 the EEOC announced that it was going to release enforcement guidelines addressing national Origin discrimination under Title VII of the Civil Rights Act of 1964. The guide will discuss agency policy and explain how the laws and regulations apply to specific workplace situations. The 30 day input period was extended to July 5, 2015. At this point in time, the EEOC is reviewing the input and is making appropriate revisions. Upon the revisions being completed, a final guide will be released to replace the Compliance Manual on National Origin Discrimination that was issued in December 2002. Please check back for further developments on this resource.

Office of Special Counsel
EEOC Facts About National Origin Discrimination
EEOC Questions and Answers About the Workplace Rights of Muslims, Arabs, South Asians, and Sikhs Under The Equal Employment Opportunity Laws
EEOC Statistics on Charges of National Origin Discrimination

Prevent Employment Discrimination and Lawsuits

In employment discrimination lawsuits, the business always loses, even if that loss is a diminished public reputation. Consequently, creating a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form is critical for your success.

Retaliation Discrimination Lawsuits Are Most Common

Statistics from the Equal Employment Opportunity Commission (EEOC) show claims regarding retaliation discrimination topped the list again in 2018. Illegal retaliation occurs when someone complains about discrimination (or other illegal behavior), and the company punishes the complainer.

Here’s the complete breakdown from EEOC from 2018 complaints:

  • Retaliation: 39,469 (51.6% of all charges filed). Historically, retaliation complaints are the most common ones filed with the EEOC.
  • Sex: 24,655 (32.3%). Employment discrimination by gender rose to the second most commonly filed complaint.
  • Disability: 24,605 (32.2%)
  • Race: 24,600 (32.2%)
  • Age: 16,911 (22.1%)
  • National Origin: 7,106 (9.3%)
  • Color: 3,166 (4.1%)
  • Religion: 2,859 (3.7%)
  • Equal Pay Act: 1,066 (1.4%)
  • Genetic Information: 220 (.3%)

Sexual Harassment Charges Increase

The agency also received 7,609 sexual harassment charges—a 13.6% increase from 2017 and it attributes the increase to the #metoo movement pushing harassment into the spotlight. The EEOC reports obtaining $56.6 million in monetary benefits for victims of sexual harassment in 2017.

Rising Costs of EEOC Suits Expensive for Employers

From an employer’s perspective, settlement costs to resolve an EEOC claim fade in the face of additional, often unrecorded, costs to the employer’s organization, says Shanti Atkins, an ethics and compliance specialist. These include the costs of:

    • Distraction: The organization’s staff will spend months gathering and preparing documents while an internal investigation is conducted, and time is invested in fighting the claim.
    • DepressionEmployee morale will suffer under the constant pressure of a lawsuit.
    • Blemished reputation: An employer known as an employer of choice for recruiting and retaining desirable employees—whether found guilty or innocent—may be under a cloud.
    • Actual attorneys’ fees: These can cost as much or more than an eventual settlement, if the employer is found guilty.
Jury awards are expensive for employers. Class action lawsuits, which are also increasing, generally result in lower per-claimant awards but can cost an employer millions of dollars in cash and untold millions in unattributed fallout.

Employees who do not believe their complaint was adequately addressed by their employer during a normal internal complaint process—or in situations where the harassment or discrimination behavior continues—may file a claim with the EEOC. Only a tiny fraction of charges filed with the EEOC result in a lawsuit, says diversity communications consultant Gail Zoppo. So, even if the EEOC issues a “right to sue,” to an employee, the individual may have to invest significant resources in legal counsel, and only 1% of employees win their case.

How Employers Can Prevent Employment Discrimination

Employers need to adopt several serious guidelines for the prevention of discrimination in the workplace. Don’t wait until you are the target of a lawsuit before taking a few simple steps that could have prevented years of pain.

Employers who put strong measures in place to prevent and address employment discrimination, harassment, and retaliation may avoid EEOC charges and lawsuits.

Further, their employment discrimination policies, preventative measures, and practices to create a healthy workplace culture, can work in their favor. The employer may escape significant damage if they demonstrate these actions:

  • Implement and integrate a strict policy that makes employment discrimination of any type unacceptable in your workplace. The policy needs to cover employment discrimination, harassment, and retaliation. The policy should include a process for reporting any incidents of employment discrimination, harassment, or retaliation to the company. Preferably, employees are given several methods for reporting incidents in case their supervisor is involved in the employment discrimination matter.
  • The policy should communicate how an employee complaint will be handled with an outline of steps. The employment discrimination policy should spell out disciplinary action that will be taken with offenders.
  • The policy should discuss the nature of retaliation, and stress that retaliation is also a form of discrimination. Finally, the employment discrimination policy should contain an appeal process for employees who are dissatisfied with the outcome of their complaint.
  • Train your managers in the implementation of the anti-discrimination policy with the expectation that prevention is their responsibility. A manager’s role is to create a work environment and culture in which employment discrimination, harassment, and retaliation do not occur.
  • Managers must recognize signs and symptoms that discrimination, harassment, or retaliation is occurring and know how to address these illegal actions. Managers must thoroughly understand the company’s policy and know how to recognize work situations that might escalate into employment discrimination, harassment, or retaliation situations.
  • Employment discrimination, harassment, retaliation, bullying, anger, and potential violence should all be addressed together as unacceptable in your workplace. Effective training must teach that all of these concepts and behaviors integrate, intersect, and are woven together to create a supportive, nondiscriminatory, employee-friendly work environment.
  • Mandatory employee training should address many of the same issues as the managers’ training relative to employment discrimination. Cost-effective online training solutions are available for portions of this employee training. All employees must sign off on a training record to indicate they are aware of and understand the employer’s policy and complaint process.
  • Establish cultural expectations and norms. Creating a work environment that is free of employment discrimination—and all forms of harassment and retaliation—should be integral in employee job descriptions, the goals in the performance development planning process, and in employee review and evaluation.
  • Act in a timely manner. Respond to an employee complaint about employment discrimination, harassment, or retaliation in a timely, professional, confidential, policy-adhering manner. Address the employee complaint all the way through to appeal, when necessary.

As with any employment situation that could result in litigation, document all aspects of policy training, complaint investigation, hiring and promotion practices, management development, and employee preventative training. Your good faith efforts to prevent employment discrimination, harassment and retaliation may serve you well—increasingly important in the litigious future.

Why Are Employment Discrimination Lawsuits Rising So Rapidly?

4 Reasons Why Employment Discrimination Cases Are on the Rise

Employment discrimination lawsuits are rapidly rising. Here is why.

Employment discrimination isn’t always illegal. In fact, you are free to discriminate against people who come in late, people who are unqualified, and people who insist on wearing socks with sandals. Illegal employment discrimination is limited to just a handful of things.

The Federal Civil Rights Law (known as Title VII) prohibits employment discrimination on the basis of race, color, gender, national origin, and religion. You’ll note that sexual orientation is not explicitly listed.

However, the courts are divided as to whether or not sexual orientation falls under gender discrimination, and some states and cities it clear that discrimination on the basis of sexual orientation is illegal. Regardless, you should consider discrimination on the basis of sexual orientation illegal.

In addition to Title VII discrimination, pregnancy, disability, association with someone who has a disability, and genetic information are all protected under federal law.

Employment Discrimination Lawsuits Are Rising Rapidly

The EEOC reported that employment discrimination lawsuits are on the rise and have been for several years. While the figures for 2017 are not yet available, it would be surprising if they dropped off. Here are the figures for 2016:

  • Retaliation: 42,018 (45.9 percent of all charges filed)
  • Race: 32,309 (35.3 percent)
  • Disability: 28,073 (30.7 percent)
  • Sex: 26,934 (29.4 percent)
  • Age: 20,857 (22.8 percent)
  • National Origin: 9,840 (10.8 percent)
  • Religion: 3,825 (4.2 percent)
  • Color: 3,102 (3.4 percent)
  • Equal Pay Act: 1,075 (1.2 percent)
  • Genetic Information Non-Discrimination Act: 238 (.3 percent)

1. Increased Awareness

If you don’t know something is illegal, you won’t file a legal complaint about it. The original discrimination laws were passed more than 50 years ago, and yet not everyone knows their rights. As more people learn, they can recognize when a boss or coworker behaves illegally.

Additionally, as employers increase training programs designed to prevent discrimination and harassment, people recognize harassment they faced in the past.

Increased awareness doesn’t indicate an increase in actual bad behavior. It merely indicates that more people are aware of their rights. Hopefully, as awareness increases, more people will understand their responsibilities as well, and actual cases will decrease over time.

2. Increased Coverage

This goes along with increased awareness. As people see reports of discrimination in the news, they realize they are not alone, and there is something they can do about it. In 2017, the “New York Times” had over 1600 articles where the word “discrimination” appears. Not all of these, of course, are employment cases, but it brings the ideas to the forefront. The “Washington Post” had over 2000 articles in the same time period, including the following headlines:

If you are reading these headlines every day, even if you don’t read the articles, you can infer that discrimination is everywhere, and it brings up questions. For instance, if it’s racial discrimination to have a certain dress code at a restaurant, is it also racial discrimination to have a certain dress code at your office? You may not have considered that as a possibility before.

The other thoughts these headlines spark is the idea of a big financial gain. The Missouri prison worker who won $1.5 million is not a usual case. Most discrimination cases don’t result in big payouts, but if you think that you might have a big winner of a case, you may be more willing to file a lawsuit.

3. Social Media

In the past, you could complain to a few friends, complain to HR and maybe hire a lawyer, and that was it. Today, if you can get a tweet or a Facebook post to go viral. Everyone can become their own public relations firm today.

You can find out about harassment and discrimination cases that happened across the country (or the world) to people you have never met and knew nothing about until a viral post landed in your social media feeds. This can encourage people to feel like they are not alone. It can also put pressure on companies and organizations to change their behavior.

4. Employer Panic

Employers are reading the same headlines and attending the same training classes that employees do. The number one reason for a discrimination lawsuit in 2016 was “retaliation.” Illegal retaliation occurs when someone complains about discrimination (or other illegal behavior), and the company punishes the complainer.

Employers know that they can face serious consequences for violating discrimination laws. In an attempt to make the problem “go away” they can retaliate against employees by punishing them for complaining.

For instance, Karen complains that her boss, Bob, is harassing her, and the company moves her to a new position with less prestige. Or, Javier’s boss tells him to stop speaking Spanish on break. When Javier refuses, his boss gives him a lower performance rating. Heather goes on maternity leave, and when she comes back, she found that her boss gave all of her best clients to other employees.

All of these are examples of retaliation, and companies often retaliate in panic or denial. The idea is, that if you can just shut up the complainer, the problem will go away. Sometimes this works, as people would rather find a new job and leave than fight it out with a lousy employer, but if they decide to sue, the employer gets hit with a retaliation charge.

Does This Increase in Employment Discrimination Cases Mean You Should Sue?

If you’ve been illegally discriminated against, you certainly have the right to your day in court. You can file a complaint with the EEOC, or you can hire an employment attorney. But, keep in mind that winning an employment discrimination lawsuit is difficult and expensive.

Of those cases that make it to court, the employee wins in only 1 percent of the cases. While that sounds dreadful and hopeless, keep in mind that most cases settle out of court. Many are sealed, so you have no idea how much money, if any, the employee received. But, huge sums are not common, and you have to pay your lawyer as well unless the EEOC takes your case.

Cases can also take years to work their way through the courts, during which time you are under stress. It’s often logical to just walk away. However, this does not mean you should let harassment and discrimination go.

Everyone needs to make his or her own choice. But it does mean that you need to be careful how you act in the workplace. People won’t stand for illegal discriminatory behavior anymore. And that’s a good thing.

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Suzanne Lucas is a freelance journalist specializing in Human Resources. Suzanne’s work has been featured on notes publications including Forbes, CBS, Business Insideand Yahoo.

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