Discrimination in the Workplace

Taisiia Mliuzan
26 June 2018

Discrimination in the Workplace

Discrimination in the workplace is a difficult and somewhat ‘painful’ subject. Nevertheless, it is as relevant as ever. There are plenty of examples of poorly assembled job descriptions on various job boards. Furthermore, plenty of candidates have stories of interviews, where they were asked inappropriate questions, which many deem to be ordinary, though such practice is absolutely unfair, both from the ethical and judicial points of view. Unfortunately, the labor laws of CIS nations usually don’t have proper descriptions of discriminatory acts or of the rights that current employees or potential candidates for a job are entitled to. Moreover, there aren’t any clear requirements for employers, either.

There are a number of countries, where labor law describes in detail the approach to discrimination. Furthermore, it forms a clear understanding of the subject itself, groups of individuals protected by additional laws, how to deal with such individuals and any consequences that discrimination may bring about.

For example, the U.S. has two kinds of approaches when it comes to discrimination: disparate treatment and disparate impact. Disparate treatment is intentional discrimination, which includes all actions or decisions made by an employer, including recruitment, payroll, benefits, termination, and other examples where employees are subjected to unfair treatment based on their race, religion, sex, nationality, age, or disability. On the other hand, disparate impact occurs when neutral corporate politics inadvertently discriminate against a group, which is protected by labor law.

An example of a case related to disparate treatment may occur when an employer cannot terminate the application of a candidate, whose age is over 40 if such a candidate demonstrates all of the knowledge, skills, and abilities necessary for the position. An employer cannot ask a candidate about how many kids he/she has or plans to have as such information has no relevance to the quality of one’s ability to perform at work. Questions about religious beliefs or requests of genetics samples and so on are also prohibited. Furthermore, an employer cannot reject an application if the candidate’s profile adheres to all of the official vacancy requirements.

As an example of the great detail and thought behind anti-discriminatory laws in the U.S., it is worth observing the Americans with Disabilities Act and its amendments. According to the act, it is unlawful to discriminate against qualified individuals with mental or physical disability, which significantly limits one or more life-sustaining functions, when it comes to all of an employer’s decisions or terms and conditions of the employment. This means that if an employee has some sort of an accident and becomes disabled, the employer must provide reasonable accommodation for such an employee in order for him/her to be able to perform his/her job duties. If some sort of changes to the job itself or any type of workspace or equipment are required for such accommodation, they must be implemented. For example:

  • Providing the employee with a part-time or modified/flexible work schedule
  • Restructuring of the employee’s job duties (replacement and redistribution of duties)
  • Reassigning the employee to a different job opening, which may be more applicable to him/her, considering the circumstances
  • Purchasing or modifying any necessary equipment or devices
  • Correcting/modifying performance evaluation system, training, as well as other corporate policies and materials

The employer also has no right to ask about the nature of the disability during an interview and must consider such an individual’s job application and may not reject such an applicant, may not refuse promoting him/her and may not terminate his/her employment.

Naturally, in the case of discrimination, it is also imperative to know the concept of BFOQ (Bona Fide Occupational Qualifications) – the qualifications, which employers are allowed to consider when it comes to employing new or retaining current employees; an approach, which would otherwise be categorized as discrimination, yet is in this case imperative for the performance of specific operational functions. For example, hiring kids only as models for children’s clothes.

To sum things up, everything is more or less transparent when it comes to disparate treatment. Things are a lot more complex in the case of disparate impact due to the fact that this approach is not made up of unclear rules that describe specific violations, but is rather a topic dealing with indirect violations of human rights. The Griggs v. Duke Power Co. case could be viewed as a good example. Willie Griggs had been denied a promotion due to a lack of a secondary education diploma and the results of two tests, which were taken prior to the employment. The court had recognized that such demands would not have any influence on one’s success at the job and had a negative impact on a group protected by the law.

The main difference between the two approaches is that disparate treatment deals with cases when an employer’s actions are discriminatory on their own, while disparate impact deals with cases when an employer’s actions are neutral on the surface, meaning the corporate rules and politics apply in the same manner to all employees. Attention must be paid to the consequences. If certain corporate politics or decisions of an employer are to have an unintentional discriminatory or infringing effect on the rights of a certain group of employees, which is protected by anti-discrimination law, the court would recognize such action as discriminatory, as well. Furthermore, disparate treatment includes a code of laws, while disparate impact can only be proven in court.

If the court recognizes an employer as being guilty of breaking the anti-discrimination law, the following consequences may take place:

  • Payment of wages for the period between breaking of law and verdict
  • Reinstatement of employee
  • Retraining of employee
  • Transfer of employee
  • Promotion of employee
  • Preventive measures for avoiding any repeats of such occurrences in the future

The employer must also cover all legal costs. As of 1991, the Civil Rights Act had been expanded and in the case of disparate treatment, the employer must also compensate the expenses of a jury trial, any fines and compensatory damages that may include any expenses related to job search, medical bills, and defamation damages.

In conclusion, the information provided in this post was meant to shine some light on discrimination and why it is a formal offence. An equal treatment of various groups of individuals is a norm, not a privilege. Respect and equality must be discussed and promoted as this is the very starting point in the evolution of labor relations.