Workplace Discrimination: Types, Examples & Legal Remedies
Quick Answer: Workplace discrimination generally involves unlawful treatment in employment because of a protected characteristic or protected activity covered by federal, state, or local law. Federal employment discrimination laws can apply to hiring, firing, compensation, promotion, assignments, discipline, benefits, training, and other employment conditions.
Workplace discrimination can affect a person's ability to get a job, earn equal pay, receive a promotion, obtain reasonable accommodations, keep employment, or participate equally in the workplace.
But not every unfair workplace decision is unlawful discrimination.
The key legal question is usually whether the employment decision or workplace conduct is connected to a characteristic or activity protected by applicable law.
Federal employment discrimination law is enforced through several major statutes and agencies. The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws covering discrimination based on characteristics including race, color, religion, sex, national origin, age, disability, and genetic information. Federal protections also cover certain pregnancy-related discrimination, sexual orientation, and transgender status.
Other federal laws address specific workplace rights, including reasonable accommodation, equal pay, protected leave, and retaliation.
State and local governments may provide additional protections that go beyond federal law.
This guide explains the major types of workplace discrimination, common examples, how discrimination can occur, the difference between disparate treatment and disparate impact, workplace harassment and hostile work environments, retaliation, reasonable accommodations, evidence, EEOC procedures, potential remedies, and practical steps employees can take.
Legal information notice: This article provides general educational information about U.S. employment law. It is not legal advice and does not create an attorney-client relationship. Federal, state, and local employment laws vary, and the law applicable to a particular workplace situation depends on the facts, jurisdiction, employer, worker status, and applicable statute. Consult a qualified employment attorney or appropriate government agency for advice about a specific situation.
Key Takeaways
- Workplace discrimination is not limited to termination.
- Discrimination can occur during hiring, compensation, promotion, discipline, scheduling, training, benefits, and other employment decisions.
- Federal law protects workers and applicants against specified forms of discrimination.
- Protected characteristics under federal law include race, color, religion, sex, national origin, age, disability, and genetic information.
- Federal protections also address pregnancy, sexual orientation, and transgender status under applicable law.
- Harassment can become unlawful when it is connected to a protected characteristic or protected activity and satisfies the applicable legal standard.
- Retaliation for certain protected activities is prohibited.
- Disparate treatment and disparate impact are different legal theories.
- Reasonable accommodation may be required in qualifying circumstances.
- Evidence can include emails, messages, performance records, pay records, witness testimony, and comparator evidence.
- Many federal discrimination claims involve an administrative process through the EEOC.
- Filing deadlines can be short, so employees should investigate applicable deadlines promptly.
What Is Workplace Discrimination?
Quick Answer: Workplace discrimination generally involves unlawful treatment in employment because of a protected characteristic or protected activity covered by federal, state, or local law. Federal employment discrimination laws can apply to hiring, firing, compensation, promotion, assignments, discipline, benefits, training, and other employment conditions.
Workplace discrimination can occur in many forms.
For example, an employer may unlawfully treat an employee differently because of race, religion, sex, national origin, disability, or age.
Discrimination can also arise when an employer retaliates against an employee for engaging in protected activity, such as making a qualifying discrimination complaint or participating in an investigation.
The precise legal standard depends on the statute and circumstances.
For this reason, the phrase "workplace discrimination" should not be treated as one single legal claim. Different federal statutes establish different requirements and protections.
What Are the Main Types of Workplace Discrimination?
Quick Answer: Major categories of federal employment discrimination include race, color, religion, sex, pregnancy, sexual orientation, gender identity, national origin, age, disability, and genetic-information discrimination. Federal law also prohibits retaliation for certain protected activities.
The major categories include:
- Race discrimination.
- Color discrimination.
- Religious discrimination.
- Sex discrimination.
- Pregnancy discrimination.
- Sexual-orientation discrimination.
- Gender-identity discrimination.
- National-origin discrimination.
- Age discrimination.
- Disability discrimination.
- Genetic-information discrimination.
- Retaliation for protected activity.
Different statutes cover different forms of discrimination, and the coverage of a particular employer or worker may depend on the applicable law.
Race Discrimination in the Workplace
Quick Answer: Race discrimination occurs when a covered employer makes an employment decision because of an employee's or applicant's race or otherwise engages in a prohibited race-based employment practice. Race discrimination can occur during recruitment, hiring, compensation, promotion, discipline, layoffs, termination, work assignments, and training.
Race discrimination may involve direct treatment or policies that create unlawful discriminatory effects under an applicable legal standard.
Potential examples include:
- Rejecting an applicant because of race.
- Paying similarly situated workers differently because of race.
- Assigning less desirable work because of race.
- Using racial stereotypes in promotion decisions.
- Terminating an employee because of race.
- Allowing racial harassment to continue when legal requirements for employer liability are satisfied.
Color Discrimination
Quick Answer: Federal employment law separately prohibits certain discrimination based on color. Color discrimination concerns treatment based on skin pigmentation, complexion, or skin shade.
Color discrimination can overlap with race discrimination but is legally recognized as a distinct concept under federal employment law.
An employee may therefore experience discrimination based on complexion or skin shade even where the facts do not fit neatly into a traditional race-discrimination allegation.
Religious Discrimination
Quick Answer: Federal law generally prohibits covered employers from discriminating because of religion and may require reasonable accommodation of qualifying religious beliefs or practices.
Religious discrimination can occur during:
- Hiring.
- Scheduling.
- Promotion.
- Discipline.
- Termination.
- Work assignments.
- Dress and grooming requirements.
Religious accommodation can involve matters such as religious observances, scheduling, dress, grooming, or other workplace practices.
The accommodation obligation depends on the applicable law and whether the statutory requirements are satisfied.
Sex Discrimination
Quick Answer: Federal employment law prohibits covered employers from discriminating because of sex. Federal protections also encompass pregnancy, sexual orientation, and transgender status.
Sex discrimination can affect:
- Hiring.
- Compensation.
- Promotion.
- Job assignments.
- Benefits.
- Discipline.
- Termination.
- Other employment conditions.
Sex-based harassment can also create legal issues when it satisfies the applicable harassment standard.
Pregnancy Discrimination
Quick Answer: Federal law prohibits certain pregnancy-related discrimination, and the Pregnant Workers Fairness Act provides reasonable-accommodation protections for qualifying known limitations related to pregnancy, childbirth, or related medical conditions, subject to applicable requirements.
Pregnancy-related workplace rights may involve:
- Hiring.
- Job assignments.
- Leave.
- Accommodation.
- Compensation.
- Promotion.
- Termination.
An employer may also need to evaluate a qualifying accommodation request under the applicable federal law rather than automatically treating pregnancy-related limitations as ordinary attendance or performance issues.
Sexual Orientation and Gender Identity Discrimination
Quick Answer: Federal employment protections enforced by the EEOC prohibit covered employment discrimination based on sexual orientation and transgender status as forms of sex discrimination.
Potential discriminatory conduct can include adverse decisions involving:
- Hiring.
- Promotion.
- Compensation.
- Work assignments.
- Discipline.
- Termination.
The applicable federal protections should be considered together with any additional state or local protections.
National-Origin Discrimination
Quick Answer: National-origin discrimination involves treating an applicant or employee unfavorably because of national origin or related characteristics protected by federal law.
Potential examples include discrimination based on:
- Country of origin.
- Ancestry.
- Ethnic characteristics.
- Certain linguistic characteristics.
- National-origin stereotypes.
National-origin discrimination can arise during recruitment, hiring, promotion, compensation, assignments, discipline, and termination.
Age Discrimination
Quick Answer: The federal Age Discrimination in Employment Act generally protects workers who are 40 years of age or older from discrimination because of age.
Age discrimination may involve:
- Hiring decisions.
- Layoffs.
- Promotion decisions.
- Compensation.
- Training opportunities.
- Termination.
For example, replacing an experienced employee with a substantially younger worker does not automatically establish age discrimination. The surrounding facts and applicable legal standard matter.
Disability Discrimination
Quick Answer: The Americans with Disabilities Act generally prohibits covered employers from discriminating against qualified individuals with disabilities and can require reasonable accommodation unless the applicable undue-hardship standard is satisfied.
Disability discrimination can include:
- Refusing a legally required accommodation.
- Terminating an employee because of disability.
- Using disability-related stereotypes in employment decisions.
- Retaliating against an employee for protected activity.
Reasonable accommodation may involve changes to workplace practices, schedules, equipment, accessibility, or other aspects of employment when required by law.
Genetic-Information Discrimination
Quick Answer: Federal law prohibits certain employment discrimination based on genetic information and places restrictions on employers concerning the acquisition and use of genetic information in employment.
Genetic information can involve information about:
- An individual's genetic tests.
- Family medical history.
- Genetic tests of family members.
- Certain information about requests for genetic services.
The Genetic Information Nondiscrimination Act establishes federal protections concerning employment discrimination and the handling of genetic information.
Workplace Harassment
Quick Answer: Workplace harassment can violate federal law when it is based on a protected characteristic or protected activity and satisfies the applicable legal standard.
Harassment can involve conduct such as:
- Offensive comments.
- Slurs.
- Threats.
- Repeated unwanted conduct.
- Sexual comments.
- Racial comments.
- Religious harassment.
- Disability-related harassment.
Not every rude comment or unpleasant interaction is legally actionable harassment.
The applicable statute and legal standard must be considered.
What Is a Hostile Work Environment?
Quick Answer: A hostile-work-environment claim generally involves harassment connected to a protected characteristic or protected activity that satisfies the applicable legal threshold. A merely unpleasant workplace does not automatically establish such a claim.
The analysis may consider factors such as:
- The frequency of the conduct.
- The severity of the conduct.
- Whether the conduct was physically threatening or humiliating.
- Whether it interfered with work.
- The relationship between the conduct and a protected characteristic.
One isolated incident may be significant in some circumstances, but not every isolated offensive remark establishes a hostile work environment.
Retaliation for Reporting Discrimination
Quick Answer: Federal law prohibits retaliation against individuals who engage in certain protected activities, including complaining about discrimination, filing a discrimination charge, or participating in an employment discrimination investigation or lawsuit.
Retaliation is legally distinct from the underlying discrimination claim.
For example, an employee may complain about racial discrimination and later face termination.
The employee may potentially have a retaliation claim if the termination was connected to protected activity, even if the underlying discrimination allegation ultimately cannot be proven.
The specific requirements depend on the applicable statute.
Where Can Workplace Discrimination Occur?
Quick Answer: Workplace discrimination can occur during recruitment, hiring, compensation, promotion, discipline, termination, job assignments, benefits, training, leave, scheduling, and other terms and conditions of employment.
Discrimination can therefore occur at virtually every stage of the employment relationship.
| Employment Stage | Potential Discrimination Issue |
|---|---|
| Recruitment | Who receives opportunities to apply |
| Hiring | Selection decisions |
| Compensation | Pay and benefits |
| Promotion | Advancement opportunities |
| Assignments | Work allocation and opportunities |
| Discipline | Unequal disciplinary treatment |
| Leave | Protected leave or accommodation issues |
| Termination | Discriminatory or retaliatory discharge |
What Is Disparate Treatment?
Quick Answer: Disparate treatment generally refers to intentional discrimination in which an individual is treated differently because of a protected characteristic.
For example, an employer may have a workplace rule that applies to everyone but enforce it more harshly against employees of a particular protected group.
Evidence relevant to a disparate-treatment theory can include:
- Different treatment of similarly situated employees.
- Discriminatory comments.
- Changes in the employer's explanation.
- Unusual timing.
- Performance records.
- Disciplinary history.
- Comparator evidence.
What Is Disparate Impact?
Quick Answer: Disparate impact generally involves a facially neutral employment policy or practice that disproportionately harms a protected group and cannot satisfy the applicable legal justification under the relevant statute.
Unlike disparate treatment, disparate-impact analysis does not necessarily require proof that the employer intentionally wanted to discriminate.
A policy can appear neutral on its face but still have a disproportionately harmful effect.
The precise requirements, defenses, and burden of proof depend on the applicable statute.
Can an Employer Give a Legitimate Reason for an Employment Decision?
Quick Answer: Yes. An employer may provide a legitimate, nondiscriminatory explanation for an employment decision. The legal analysis may then focus on whether the stated explanation is genuine or whether the evidence supports a finding that it was a pretext for unlawful discrimination.
For example, an employer may state that an employee was terminated because of poor performance.
Evidence concerning performance reviews, changing explanations, disciplinary history, comparator treatment, and timing may become relevant to whether the stated reason is credible.
What Is Pretext?
Quick Answer: Pretext generally refers to a stated reason for an employment decision that is not the employer's genuine reason and may conceal unlawful discrimination or retaliation.
Potential evidence of pretext can include:
- Changing explanations.
- Contradictory records.
- Departures from normal procedures.
- Unequal treatment.
- Discriminatory comments.
- Unusual timing.
- Lack of supporting documentation.
A suspicious explanation does not automatically establish discrimination. It becomes meaningful when considered together with the applicable legal standard and the evidence.
Can Workplace Policies Be Discriminatory?
Quick Answer: Yes. A workplace policy can potentially violate federal discrimination law if it intentionally discriminates or, under a statute recognizing disparate-impact liability, disproportionately harms a protected group without satisfying the applicable legal requirements.
A policy can appear neutral on its face and still require legal analysis.
Examples can include policies concerning:
- Hiring.
- Scheduling.
- Physical requirements.
- Attendance.
- Promotion.
- Compensation.
- Discipline.
The applicable statute determines the required showing and available defenses.
What Are Reasonable Accommodations?
Quick Answer: A reasonable accommodation is a workplace change that can enable a qualified employee or applicant to perform a job or access employment opportunities when accommodation is required by applicable law and the accommodation does not impose the legally applicable undue hardship.
Accommodation requirements can arise under several federal laws.
Disability Accommodation
Depending on the circumstances, disability accommodation may involve a modified schedule, assistive technology, accessibility changes, or other reasonable workplace modifications.
Religious Accommodation
Religious accommodation may involve schedule adjustments, dress-code exceptions, or other reasonable modifications that allow an employee to observe a sincerely held religious belief or practice.
Pregnancy-Related Accommodation
The Pregnant Workers Fairness Act provides accommodation protections for qualifying known limitations related to pregnancy, childbirth, or related medical conditions, subject to statutory requirements.
What Is Undue Hardship?
Quick Answer: An employer may not be required to provide an accommodation when doing so would create the legally applicable undue hardship. The precise standard depends on the statute and circumstances.
Employers should evaluate accommodation requests under the legal standard applicable to the particular statute and facts rather than using "undue hardship" as a conclusory label.
The nature of the accommodation, its cost, operational impact, workplace structure, and applicable statutory standard may all matter.
What Evidence Can Help Prove Workplace Discrimination?
Quick Answer: Evidence can include emails, text messages, workplace communications, performance evaluations, disciplinary records, pay information, hiring materials, witness testimony, discriminatory comments, comparator evidence, and records of complaints or accommodation requests.
Potentially useful evidence includes:
- Emails.
- Text messages.
- Performance reviews.
- Disciplinary records.
- Pay records.
- Hiring materials.
- HR communications.
- Witness testimony.
- Discriminatory statements.
- Comparator evidence.
- Accommodation requests.
- Records of complaints.
A useful comparator may work under the same supervisor, hold a similar position, have a similar disciplinary history, and have engaged in substantially similar conduct. The comparison must be sufficiently meaningful under the applicable legal standard.
What Are Comparators in a Discrimination Case?
Quick Answer: A comparator is generally a similarly situated employee used to evaluate whether workers were treated differently under similar circumstances. Comparator evidence can be important in discrimination cases, but the appropriate comparison depends on the legal theory and applicable standard.
For example, an employee disciplined for a workplace violation may compare their treatment with another employee who committed substantially similar conduct.
The comparison becomes more meaningful when the employees:
- Have similar positions.
- Work under the same decision-maker.
- Are governed by similar policies.
- Have similar disciplinary histories.
- Engaged in substantially similar conduct.
What Are the Legal Remedies for Workplace Discrimination?
Quick Answer: Potential remedies depend on the applicable statute and facts. They can include hiring, reinstatement, back pay, front pay, benefits, injunctive relief, compensatory damages, punitive damages, attorney's fees, and other corrective relief.
Potential remedies include:
- Hiring.
- Reinstatement.
- Back pay.
- Front pay.
- Lost benefits.
- Compensatory damages.
- Punitive damages in qualifying cases.
- Injunctive relief.
- Attorney's fees where authorised.
Not every remedy is available for every discrimination claim.
Some federal statutes impose specific limitations or different remedial frameworks.
How Much Can You Recover for Workplace Discrimination?
Quick Answer: There is no single nationwide recovery amount. Potential compensation depends on the applicable law, lost wages and benefits, employer size, damages suffered, available remedies, statutory limits, and the facts of the case.
Potential financial losses can include:
- Lost wages.
- Lost benefits.
- Future lost earnings.
- Other compensable economic losses.
Depending on the applicable law, compensatory or punitive damages may also be available.
For specified federal intentional-discrimination claims, compensatory and punitive damages are subject to statutory caps based on employer size. Back pay and certain other forms of relief are treated differently.
How Do You File a Workplace Discrimination Claim?
Quick Answer: Many federal employment discrimination claims begin with an administrative charge filed with the EEOC, although the precise procedure depends on the applicable statute, employer, worker status, jurisdiction, and type of claim.
A practical sequence is:
- Identify the workplace event.
- Determine the possible legal protection involved.
- Preserve relevant evidence.
- Check the applicable deadline.
- Determine whether an EEOC or state/local agency charge is required.
- File the appropriate administrative charge when necessary.
- Participate in applicable investigation or mediation procedures.
- Review procedural developments.
- Determine whether litigation or another legal proceeding is available.
How Long Do You Have to File a Workplace Discrimination Claim?
Quick Answer: There is no single deadline for every workplace discrimination claim. Many EEOC-enforced claims generally involve a 180-day charge-filing period that can be extended to 300 days in qualifying jurisdictions, but the exact deadline depends on the claim and circumstances.
Potentially important events can include:
- Termination.
- Failure to hire.
- Failure to promote.
- Discriminatory compensation.
- Retaliation.
- Harassment.
- Denial of a legally required accommodation.
Because deadlines can be complicated, verify the applicable deadline with the EEOC, the relevant state or local agency, or qualified counsel as soon as possible.
What Should You Do If You Believe You Are Experiencing Workplace Discrimination?
Quick Answer: Document what happened, preserve relevant records, identify the protected characteristic or protected activity involved, review workplace policies, determine applicable deadlines, and consider contacting the EEOC, a state or local agency, or a qualified employment attorney.
Step 1: Document What Happened
Record dates, locations, people involved, statements made, employment decisions, and relevant circumstances.
Step 2: Preserve Relevant Evidence
Keep relevant emails, messages, performance reviews, pay records, HR communications, disciplinary documents, and other materials you are lawfully entitled to retain.
Step 3: Identify Potential Comparators
Consider whether similarly situated employees were treated differently.
Step 4: Identify Protected Activity
Determine whether you previously complained about discrimination, requested an accommodation, participated in an investigation, or filed an EEOC charge.
Step 5: Check Deadlines
Do not allow uncertainty about the legal merits of a claim to cause you to miss an applicable filing deadline.
Step 6: Consider Legal Advice
A qualified employment attorney can help determine which laws may apply, what evidence matters, and which procedural steps may be available.
Common Mistakes to Avoid
Quick Answer: Common mistakes include destroying evidence, waiting too long to investigate deadlines, assuming unfair treatment automatically proves discrimination, making unsupported accusations, improperly taking confidential company information, and failing to document important events.
- Do not destroy or alter relevant evidence.
- Do not improperly take confidential company information.
- Do not exaggerate facts.
- Do not assume every unfair decision is illegal.
- Do not ignore administrative filing deadlines.
- Do not rely solely on memory when documents are available.
Workplace Discrimination vs. Unfair Treatment
Quick Answer: Unfair treatment and unlawful discrimination are not necessarily the same. A workplace decision generally becomes a discrimination issue when the facts implicate a protected characteristic, protected activity, or other legal protection recognized by applicable law.
A rude supervisor, personality conflict, unfair performance review, or bad management is not automatically unlawful discrimination.
Termination because of race, denial of a legally required accommodation, retaliation for protected activity, or qualifying discriminatory treatment can present different legal questions.
Workplace Discrimination Example
Consider an employee who has worked for a company for five years and consistently received strong performance evaluations.
The employee applies for a management position.
During the selection process, a supervisor makes comments suggesting that customers prefer younger employees.
The position is given to a substantially younger applicant with less experience.
The comments alone do not necessarily prove age discrimination.
Depending on the circumstances, evidence concerning the supervisor's statements, the selection process, candidate qualifications, and the employer's stated reason could become relevant to an age-discrimination analysis.
Frequently Asked Questions
What are the main types of workplace discrimination?
Major federal categories include race, color, religion, sex, pregnancy, sexual orientation, transgender status, national origin, age 40 or older, disability, and genetic information.
Is discrimination at work illegal?
Certain forms are illegal under federal, state, and local law, but not every unfair employment decision is unlawful discrimination.
Can I sue my employer for workplace discrimination?
Potentially. Availability depends on the applicable law, facts, administrative requirements, deadlines, and procedural rules.
What evidence helps prove workplace discrimination?
Emails, messages, performance records, disciplinary documents, pay information, witness testimony, comparator evidence, discriminatory comments, and other workplace records can be relevant.
Do I need to file an EEOC complaint before suing?
Many federal employment discrimination claims involve an administrative charge with the EEOC before a lawsuit can proceed, but the exact requirement depends on the applicable law and claim.
How long do I have to file a workplace discrimination claim?
Deadlines vary. Many EEOC-enforced claims generally involve a 180-day charge-filing period that can be extended to 300 days in qualifying jurisdictions, but the exact deadline depends on the claim and circumstances.
Do I need a lawyer to file an EEOC charge?
You generally do not need an attorney to file an EEOC charge. Legal representation may nevertheless be useful in complex cases involving significant damages, multiple claims, or difficult procedural issues.
Conclusion
Workplace discrimination law protects employees and job applicants from a wide range of unlawful employment practices.
Federal law can apply to recruitment, hiring, compensation, promotions, assignments, discipline, benefits, accommodation, harassment, retaliation, and other employment conditions.
Federal protections include race, color, religion, sex, national origin, age, disability, and genetic information, with additional protections concerning pregnancy, sexual orientation, and transgender status under applicable federal law.
At the same time, unfair treatment is not automatically unlawful discrimination.
A legal claim generally requires a connection between the challenged employment conduct and a protected characteristic, protected activity, or another legally protected right.
If you believe you are experiencing workplace discrimination, document what happened, preserve relevant evidence lawfully, identify applicable deadlines, and consider contacting the EEOC, an appropriate state or local agency, or a qualified employment attorney.
Legal Disclaimer
This article is for general educational and informational purposes only. It is not legal advice and does not create an attorney-client relationship. Federal, state, and local employment laws vary, and the law applicable to a particular workplace situation depends on the facts, jurisdiction, employer, worker status, and applicable statute. Consult a qualified attorney for advice concerning a specific situation.