Charles Joseph, JD 
Have you faced discrimination at work?
Employment discrimination can happen in any workplace. In fact, more than 60 percent of American workers have witnessed or experienced discrimination in the workplace, according to a 2019 study by Glassdoor. And in the past decade, workers filed over 1 million employment discrimination complaints with the government, according to the Washington Post.
Discrimination can take several forms, such as refusing to hire someone because of their sexual orientation or firing someone for their skin color. In some cases, discrimination or harassment is glaring and unmistakable. But in other cases, it might be more subtle, leaving the target wondering whether their rights have even been violated and how they can prove it.
As an employment lawyer with decades of experience, I've represented clients who've faced all kinds of workplace discrimination, from shocking and egregious violations to subtle-yet-harmful mistreatment. During an initial consultation, my clients almost always ask two questions: "Was it discrimination?" and "What should I do about it?"
What counts as workplace discrimination?
Understanding what counts as workplace discrimination can help job seekers and employees determine their next step — and determine whether the employer violated employment protections at all.
So, what qualifies as employment discrimination? At the federal level, laws protect employees from unfair treatment because of their race, sex, religion, national origin, age, and disability status. These categories also cover discrimination based on color, gender identity, pregnancy, and sexual orientation. The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal employment discrimination laws.
In addition to federal employment laws, many states provide more expansive discrimination protections. For example, New York discrimination laws cover caregiver status, marital status, and parental status as additional protected classes.
Discrimination laws also protect workers from harassment based on their race, sex, age, and other protected categories. And, employers cannot retaliate against workers who complain about workplace discrimination or participate in a discrimination investigation or lawsuit.
Employers also must grant reasonable accommodations because of a worker's disability status or religious beliefs.
The definition of workplace discrimination may seem broad, but consider what doesn't count as discrimination: any employment actions that don't target a protected category (e.g. race, sex, religion) or protected activity (e.g. reporting discrimination).
In practice, you can legally be fired for a good reason, a bad reason, or no reason at all. A supervisor can be mean to you or even bully you because they simply don't like you. Discrimination laws only protect workers from unfavorable treatment because of their race, gender, disability status, or another protected category.
Discrimination as a job seeker
Workplace discrimination can take several forms, and companies might discriminate against candidates during the hiring process. Fortunately, discrimination laws also cover job candidates, not just employees.
What does discrimination against a job candidate look like? Consider an experienced Black applicant who doesn't get the job because the hiring manager thinks clients would feel uncomfortable working with him. There could be a qualified female welder who gets turned down because the owner thinks she won't "fit in" with the other (male) employees.
Even job postings can violate discrimination laws. Employers cannot, for instance, post a job ad asking specifically for women to apply. They also cannot discourage certain groups by saying or implying that applicants pregnant or near retirement age should not apply.
If companies make hiring decisions based on protected characteristics rather than an applicant's qualifications and experience, that can constitute discrimination.
Unfortunately, discrimination during hiring can be difficult to prove. Simply hiring a younger applicant over an older one might not constitute discrimination if the company has a non-age-related reason for their decision. Therefore, lawsuits alleging hiring discrimination can require more than circumstantial evidence, which, in contrast, is often sufficient to win termination or failure-to-promote cases.
Discrimination as an employee
As employees, workers may experience discrimination in promotions, job benefits, or pay. Firing someone for discriminatory reasons also violates the law. Any time a company treats someone less favorably because of a protected characteristic, it can qualify as discrimination.
Examples of workplace discrimination include a company refusing to promote employees born outside of the U.S. or denying employment benefits to same-sex couples. Firing employees because of a protected characteristic also qualifies as discrimination, as does selectively laying off employees over the age of 40, for example.
Similarly, wage discrimination violates the law. Paying an employee less because of their gender identity, disability status, skin color, or country of origin counts as discrimination.
In addition, workplace harassment can break employment discrimination laws. If sexually or racially offensive or derogatory behavior in the workplace creates a hostile work environment, workers can sue their employer. Sexual harassment, for instance, qualifies as a form of sex discrimination.
However, the term "hostile work environment" can be confusing. An environment that is truly hostile, even overwhelmingly toxic, is not technically considered hostile under the law unless the behavior targeted a particular protected characteristic.
Employers also must provide reasonable accommodations for workers. For instance, companies cannot refuse to let Jewish or Muslim employees take off religious holidays if they can change their schedules with reasonable effort. Similarly, employers must accommodate the needs of workers with disabilities by making the workplace accessible or allowing a modified schedule.
In short, if an employer treats a worker less favorably because of a protected characteristic, it violates that worker's rights. This includes retaliating against an employee for reporting discrimination or filing a complaint to protect one's own rights or the rights of others.
Steps to avoid if discrimination takes place
What should you do if you experience workplace discrimination? First, let's talk about what not to do.
As a job seeker
In a job interview, remember that you don't have to answer illegal questions. In the moment, sidestepping the question or asking, "How does this relate to the job?" can help you push back against boundary-crossing questions. Learn more about off-limits interview questions and how to handle them.
Overall, the biggest mistake job applicants and employees can make is not documenting the discriminatory behavior. Keeping notes and reporting discrimination to your supervisor or the human resources department can help you prove that discrimination took place.
As an employee
From a legal point of view, if you experience discrimination while employed, it's often a bad idea to quit your job preemptively. If you leave voluntarily, the bar for having a case raises dramatically. From a personal point of view, however, you may feel you must leave immediately. If that's the case, of course you should.
Even though you may feel angry or threatened by discriminatory actions, consider your next step carefully. Yelling at your supervisor or refusing to perform your job duties can give your employer legitimate cause to terminate your employment.
If your employer opens an internal investigation to determine whether discrimination or harassment occurred, cooperate as best you can. Refusing to provide evidence or the names of witnesses will only harm your chances of a positive resolution.
Steps to take if you experience discrimination
If you experience discrimination as an employee, taking several steps immediately can help protect your rights.
Keep records
First, victims of discrimination should keep records detailing what they experience. Save emails or written reports that contain evidence of discrimination. It's a good idea to make copies and keep them at home.
Employees should also make their own notes about the discriminatory practices or harassment. These notes should list the time and place where the incident took place, who was present as a witness, and what was said or done.
These records can help employees take steps to stop the discrimination.
Report the discrimination
Within a company, reporting discriminatory actions to a supervisor or human resources department can give the employer a chance to remedy the problem. Workers can also check their company's employee handbook for a harassment or discrimination procedure. Attempting to address discrimination with the company first can strengthen an employee's legal case if the situation escalates.
When reporting discrimination to a supervisor or HR, employees should always put their complaint in writing and be able to prove it was received. Keep copies of these reports along with other records and notes from the reporting process.
Keep up with your work
It's easy to check out of work if you experience discrimination. However, it's critically important to keep doing a good job, even if you face a hostile work environment. If you eventually face retaliation or wrongful termination, demonstrating a record of positive job evaluations will show you weren't fired for cause.
Find support
Finally, discrimination takes a toll on people. Reach out to friends, family, or a mental health professional for support. You don't have to face discrimination or harassment alone. Plus, evidence of emotional distress can prove crucial to increase your recovery in any litigation.
When to call a lawyer
Let's say you experience discrimination at work. You report the situation to HR, but nothing changes. In fact, it might even get worse — you could lose your job. When should you reach out to a lawyer about workplace discrimination?
Ideally, contact an employment lawyer directly after experiencing discrimination or harassment. In some circumstances, the employment violation may be so severe that an attorney recommends filing a case immediately. In other situations, a lawyer can provide advice on your next steps, whether that's sending a demand letter, filing a complaint with the EEOC, or filing a lawsuit.
If you aren't sure whether you've experienced discrimination, an employment lawyer can also determine whether or not you have a case. If an attorney recommends moving forward with a legal complaint, they can help you collect evidence and identify witnesses.
Keep in mind that many discrimination laws contain time limits. For example, federal laws often require victims to file a complaint within 180 days of the discriminatory actions. Because of these time limits, it's a good idea to contact an attorney sooner rather than later.
If a discriminatory workplace has you searching for a new job, make sure your resume is prepped to impress. Get a free resume review today.