Discrimination in the Workplace
Sadly, like sexual harassment, workplace discrimination is nothing new: as long as companies have had people working for them, discrimination in one form or another has been a part of office culture. For decades, it was so prevalent that, for members of some groups, employment and discrimination were virtually inseparable.
The initial stirrings of change began in June of 1941. On the cusp of the United States’ entry into World War II, President Roosevelt signed an executive order prohibiting government contractors from employment discrimination based on race, color, or national origin. His goal was to prevent strikes from interrupting the manufacture of military supplies, but the order had no enforcement mechanism or authority and was predominantly a token gesture.
In July of 1948, seven years after Roosevelt’s action, another executive order by President Truman required the desegregation of the Armed Forces, demanding equal treatment regardless of race, color, religion, or national origin. Still, it took until the start of the Korean War four years later for this to actually occur.
The first real challenge to racial discrimination didn’t happen until 1954, when the landmark Supreme Court case Brown vs. Board of Education unanimously struck down all local, state, and federal laws enforcing the segregation of public schools. Writing the Court’s opinion, Chief Justice Warren said, in part, “We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.” However, as important as this decision was, it applied solely to schoolchildren, and did nothing to address workplace discrimination.
President Kennedy’s 1961 executive order banning racial discrimination by federal contractors was the first action addressing workplace discrimination that had any enforcement authority, but it wasn’t until later in the 1960s that federal law began codifying discriminatory practices and putting prohibitions against them in place. Those first few laws—the Equal Pay Act of 1963, the Civil Rights Act of 1964, and the Age Discrimination in Employment Act of 1967—shone a spotlight on workplace discrimination and opened up a national conversation about how we felt employees should be treated by the organizations that employed them—a conversation that continues today. In fact, as sexual harassment is itself a form of workplace discrimination; #MeToo is a vital part of that conversation.
What Is Discrimination?
At its root, discrimination is simply the practice of treating a person or group of people unequally based on some distinguishing characteristic—race, gender, or religion, for example. Identifying and addressing workplace discrimination, however, can be more complicated. It has multiple facets, and though federal and state law makes it illegal for an employer to discriminate against someone in any aspect of employment—from hiring and compensation to the use of company facilities—discriminatory practices can be subtle and difficult to recognize. Also, as social mores and values change, discrimination laws have to adapt to the new normal, which can be like hitting a moving target. Much of this happens at the federal level, but many states also go above and beyond the federal government, enacting additional legislation to cover their expanded views of workplace discrimination, further complicating the issue.
Who Is Protected?
Under current federal law, workplace discrimination based on any of the criteria below is illegal in all 50 states:
• Sex (including gender stereotyping, pregnancy, and childbirth)
• National origin
• Age (40 and older)
• Citizenship status
• Genetic information
Massachusetts state law also extends protection from workplace discrimination to cover:
• Disability—physical or mental
• Marital status
• Sexual orientation
• Gender identity
• Military service
• Arrest record
In essence, this means that anyone who falls into one (or more) of these categories is legally protected from workplace discrimination, and therefore can file a complaint and gain assistance in investigating and resolving a discrimination incident—and pursue legal action, if necessary.
However, proving workplace discrimination can be difficult. In rare cases, an employee will have clear evidence of a discriminatory practice—a “smoking gun” such as a memo, email, text message, or other obvious indication of overt discrimination. More often than not, though, a case for workplace discrimination will be built on indirect evidence—for example, an African-American employee denied a promotion for which s/he was qualified, in favor of another employee who is white. In this case, if the evidence proved that the denial was based on race and not a valid factor like job experience or qualifications, the employer would be guilty of racial discrimination.
A notable addition to Massachusetts law went into effect this past July, which puts another nail into the coffin of gender-based pay discrimination: Hiring managers can no longer ask about an applicant’s previous salary during a job interview. Though federal law already prohibited such workplace discrimination, violations can be difficult to prove and pay gaps between men and women are pervasive. As companies typically use previous salaries for new employees as a baseline, this should prevent the historically lower wages given to women (and minorities) from following them throughout their careers. Massachusetts is the first state to enact its own legislation addressing this issue.
What Companies Are Affected?
Federal antidiscrimination laws apply in all states to employers with more than 15 employees. There are, however, a few exceptions:
• Age discrimination—employers with 20 or more employees
• Citizenship status discrimination—employers with four or more employees
• Equal pay for men and women—all employers
As mentioned earlier, many states also have their own anti-discrimination laws. Here in Massachusetts, the state’s anti-discrimination laws apply to companies with at least six employees.
What Are Your Rights?
If you believe you’re the victim of workplace discrimination, you should file a complaint with the Massachusetts Commission Against Discrimination (MCAD) as soon as possible. Typically, you have 300 days from the date of the incident to gather any supporting information or specific details and file your claim.
When filing or involved in a complaint of workplace discrimination, you have certain rights and there are a number of actions—called “protected activities”—you can take. First and foremost, you have the right to a workplace free of discriminatory practices, and the right to pursue action against an employer engaging in illegal treatment—towards you or a co-worker—based on any of the factors mentioned above. In addition to filing a discrimination claim or lawsuit, you may also testify on behalf of co-workers engaged in their own lawsuits, file other claims such as worker’s compensation or compliance, and expose illegal practices at your own company (whistle-blowing)—and as long as you are not attempting to disrupt the day-to-day operations of your company or rejecting/encouraging others to reject legitimate work, you can expect your job to be protected.
Be aware, though, that some employers feel wronged if an employee files a valid claim against them or stands up for his or her rights or the rights of others in a dispute. In some cases, an employer may retaliate against an employee who takes such actions, in an attempt to get back at them—from creating a hostile work environment to firing him or her. Bear in mind that you cannot be punished for insisting on your rights. Federal and state laws view these retaliatory acts as another form of discrimination; if you have a legitimate claim of such retaliation, you should speak with a lawyer as soon as possible.
What Should You Do Next?
The Massachusetts Commission Against Discrimination (MCAD) protects “workers from discriminatory treatment based on your membership in a protected class, such as race, color, creed, national origin, age, disability, gender, gender identity, sexual orientation, and more.”
The MCAD dictates that you have 300 days from the last discriminatory act to file an official complaint. If you feel you’ve been the victim of workplace discrimination—or someone you know does—it is crucial that you speak up as soon as the incident happens.
Working with an experienced attorney can ensure that your rights are protected and a successful resolution is reached on your case. The Law Offices of Michael O. Shea have 25 years of experience working in employment law and litigation with a focus as a workplace discrimination lawyer in Massachusetts.
Call today for a free consultation.
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