Workplace discrimination: What every manager needs to know

The Seven Fundamentals of ManagementEvery good employee wants to work at a fair and equal workplace, and it’s every good manager’s challenge to make sure that happens. The key is to know what constitutes illegal workplace discrimination — and how to avoid it.

Under federal law, an employer cannot discriminate against someone because of age (40 or over), color, disability, gender, genetic information, race, religion, national origin, pregnancy or veteran status. That’s it.

Those are the 10 categories that are commonly referred to as protected classes under federal bias law.

Some states have expanded their own workplace discrimination laws to include a person’s sexual orientation. But the federal law currently does not include sexual orientation as a protected category.

What many managers fail to realize is that every single person in every organization, including you, is in at least five of these classes! Those five are color, gender, race, religion and national origin.

What is workplace discrimination?

What does it meant to discriminate against someone? If a manager or employer takes an adverse employment action against someone, and the reason they took that action was because that person is a member of one of these protected classes, they just committed an illegal act.

You can fire anyone because they don’t have the skills to do a job, or they do a poor job, or they are late too often, or they are absent too much. You can fire someone because they smell god-awful and refuse to remedy the situation.

But you can’t fire them because they are over 40, or they were born in England, or their wife is pregnant or plans to get pregnant, or because they are a veteran, or they are female, or even male for that matter!

The other part of the workplace discrimination laws managers need to understand is what constitutes an adverse employment action.

An adverse employment action means doing something negative against an employee –or doing something that could be perceived as being negative, even if you didn’t mean it that way.

What is an adverse action?

Here’s a fairly complete list of adverse actions, but it is not everything.

An adverse employment action could be a dismissal, a demotion, a non-action like not hiring someone, a suspension, a furlough without pay, denying training, denying a promotion, making a schedule less attractive, a written or oral admonition or a reduction in grade or pay.

Adverse actions can get very tricky and can depend very much on the situation.

Courts have generally ruled that an adverse action must be more than a mere inconvenience. One test is whether the adverse action would have dissuaded the employee from complaining in the first place.

Another test is the timing. A negative action that occurs immediately after an employee complains almost always is seen as an adverse action.

It’s very common for people to believe that workplace discrimination only comes about because a manager or supervisor acted out of deliberate prejudice and bigotry toward an employee, or group of employees.

But often that is NOT the case. In fact, most reasonable people would naturally think “Why, I’d never do that.”

Well, not deliberately, anyway.

But day in and day out, there are those times that discrimination complaints arise to the amazement of the manager involved, because of an off-hand remark or some poorly stated direction given to an employee.

The fact is, employers are being dragged into court more and more often by employees claiming workplace discrimination.

The overwhelming number of these complaints can be dealt with and defused very early on if employers take quick and appropriate action to correct discriminatory behavior. Most of the time, that’s all a complaining employee really wants.

Also, there may well be instances when a worker sees bias where it isn’t, and firms and managers must stand their ground.

In these cases, sound documentation and reliable legal advice offer the best chances for a favorable outcome.

This is the fifth in a series of articles on the 7 fundamentals of management. To see the other articles, please go to The 7 fundamentals of management page.

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