Top three forms of workplace discrimination 

Any action that targets an employee based on such attributes as their disability, race, gender, sexual orientation, or age, as opposed to their professional skill, is considered discrimination. It is also unlawful to retaliate against an employee for complaining about such discrimination. 

The Equal Employment Opportunity Commission, also known as the EEOC, is the federal agency responsible for enforcing anti-discrimination laws. Every year, the EEOC publishes statistics on the number of discrimination claims submitted to the agency during the previous fiscal year, broken down by the type of discrimination alleged. 

Here are the top three forms of discrimination in the workplace (as most recently published by the EEOC): 

1. Retaliation.

34,332 retaliation charges were filed with the EEOC during fiscal year 2021.  This represents 56% of all charges filed. 

The tricky thing about retaliation is that the underlying claim does not necessarily have to be a valid one for the retaliation charge to stick.  For example, even if an employee’s internal harassment complaint is investigated and found to be unsubstantiated, if that person’s employment is adversely affected in any way after the complaint was filed, the employer, may be liable for retaliation.  

Rule of thumb for employers: Do not fire an employee or change their working conditions after they complain about harassment or discrimination, unless you have good, well-documented reasons for doing so that pre-date the employee’s complaint.  

2. Disability.

22,843 disability charges were filed during the fiscal year 2021. This represents 37.2% of all charges filed.

Keep in mind that the employer needs to know about the employee’s disability to be liable for discrimination on that basis. Some disabilities are easy to detect – others, not so much. Whether or not their disability is visible, employers must be careful about what they ask of an employee who is not performing well.  They should not ask them if their disability is causing their performance issues. The best question to ask is: How can we help you?  

If the employee reveals a disability and requests an accommodation to be able to continue to perform their job, while the employer doesn’t necessarily have to honor their specific request, the employer must engage in an interactive dialogue with the employee to determine if the requested accommodation is reasonable and does not cause undue hardship to the company.  

3. Race discrimination.

20,908 such charges were filed during the fiscal year 2021.  This represents 34.1% of all charges filed.

Unfortunately, race discrimination in the workplace and elsewhere is all too prevalent in our polarized society.  Training in diversity, equity, and inclusion will go a long way toward eliminating race discrimination from the workplace and thus the employer’s liability.  Not only is it the right thing to do, but studies have shown that the more diverse the workforce is, the more profitable the business will be.  And, of course, the fewer lawsuits the employer will have to defend.  

Employees who have experienced workplace discrimination may find it challenging to concentrate at work, and they often perform poorer as a result. While everyone should pay special attention to these top three forms of discrimination, do not overlook the other forms. 

Employers need to actively work to prevent discrimination by:

  • creating and enforcing up-to-date policies that include a robust complaint and investigation process,
  • providing training to employees, and
  • promoting diversity and inclusion.

If discrimination does occur, employers should handle claims thoroughly and fairly, and employees who experience discrimination should consider contacting an employment attorney for assistance with their complaint.

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