Discrimination and Harassment in the Workplace

February 6, 2022

What Are Workplace Harassment and Discrimination?

Workplace discrimination is the unfair differential treatment of an individual or group of people in the workplace because of their membership in a protected class. Unlawful discrimination in the employment context can come in the form of workplace harassment, denial of reasonable accommodations, improper questions, retaliation, and many other kinds of unfair treatment.

Workplace harassment is a subtype of workplace discrimination. It is unwelcome conduct directed toward a person or group of people based on their membership in a protected class. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

protected class is a category of people who share a characteristic protected by law. Some examples include race, religion, sex, and disability.

How Common Are Workplace Harassment and Discrimination?

Workplace discrimination is one of the most common forms of discrimination in the U.S. Among both men and women who have experienced discrimination based on sex, more reported discrimination in the workplace than in any other setting. In summer 2017, even prior to the #MeToo movement, two out of five working women in the U.S. reported experiencing workplace discrimination based on sex. Further, one in five working women reported being the victim of workplace harassment based on sex.

Workplace discrimination based on race is also widespread. In 2017, a quarter of working adults in the U.S. reported experiencing this type of discrimination. This number was even higher for certain races and professions, with Black people in STEM jobs reporting the highest rate at 62%. Unsurprisingly, studies have shown that workplace discrimination based on race results in lower job satisfaction and engagement among those who have experienced it.

What Are Employers’ Responsibilities to Their Employees?

Employers must provide their employees with a work environment free from workplace discrimination, including workplace harassment. In addition to the obvious moral imperative to treat employees fairly, federal law prohibits workplace discrimination. The Equal Employment Opportunity Commission (EEOC) is the primary, but not only, agency charged with enforcing anti-discrimination laws. These include:

  • Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
  • the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
  • the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
  • Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
  • Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;
  • Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and
  • the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

Under these laws, employers cannot discriminate in any aspect of employment, including:

  • hiring and firing;
  • compensation, assignment, or classification of employees;
  • transfer, promotion, layoff, or recall;
  • job advertisements;
  • recruitment;
  • testing;
  • use of company facilities;
  • training and apprenticeship programs;
  • fringe benefits;
  • pay, retirement plans, and disability leave; or
  • other terms and conditions of employment.

Moreover, employers must protect employees from workplace harassment perpetrated by supervisors, coworkers, independent contractors, customers, or anyone else over whom the employer has control.

In addition, states have a complex patchwork of anti-discrimination and anti-harassment laws that employers must follow. Required policies, required notices, and even protected classes often vary by state, with many imposing more stringent rules than federal law.

How Do Workplace Harassment and Discrimination Harm Employers?

The EEOC receives tens of thousands of complaints of discrimination each year, resulting in millions of dollars in penalties for employers. These penalties can consist of compensatory damages, punitive damages, and liquidated damages. The EEOC can also sue employers, and it has been known to command verdicts in excess of $100 million. State enforcement agencies also impose steep penalties for workplace discrimination in violation of their laws. In addition, employees can sue employers for discrimination themselves, resulting in employers having to pay millions of dollars in litigation costs, verdicts, and settlements.

However, the biggest costs of workplace discrimination may be hidden. Research suggests that unfair treatment leads to turnover that costs U.S. employers tens of billions of dollars each year. This is to say nothing of lost productivity among workers who stay, or the kind of costly reputational damage the NFL is currently experiencing. Overall discrimination and harassment in the workplace cause tremendous damage to employers and to the U.S. economy as a whole.

How Can Employers Effectively Prevent and Address Workplace Harassment and Discrimination?

Preventing and addressing unfair treatment in the workplace is complex. It requires dedication and attention to detail; there is not one-size-fits-all approach. However, experts have identified some core principles that companies should adhere to in crafting their approaches to workplace discrimination:

  • Committed and engaged leadership;
  • Consistent and demonstrated accountability;
  • Strong and comprehensive harassment policies;
  • Trusted and accessible complaint procedures; and
  • Regular, interactive training tailored to the audience and the organization.

When used together, these principles can guide employers in crafting a holistic compliance program that effectively prevents workplace discrimination, as well as one that appropriately addresses discrimination when it occurs.

Where Can Employers Find Reliable, Comprehensive Support in Creating a Compliance Program? 

Clear Law Institute provides a comprehensive service to help employers ensure that all aspects of their discrimination prevention program are fully compliant. We review employers’ existing policies regarding workplace discrimination and provide new ones which are compliant and effective. We also provide employers with all required EEO notices and postings. In addition, we offer investigation training and services, as well as one-on-one sensitivity coaching, to address incidents of workplace discrimination that have already occurred.

Finally, we are industry leaders in providing interactive, online sexual harassment training. We provide this training for millions of employees of thousands of employers around the world.

Consistent with EEOC guidelines and court decisions, Clear Law’s training covers not just sexual harassment, but all forms of workplace harassment, discrimination, and retaliation. For example, as required by various state laws, including California SB 396, the training covers harassment based on gender identity and expression.

As required by some states’ laws, such as California law AB 2053 and SB 1343, the training also addresses topics such as workplace civility, bullying, and bystander intervention.

This online course is fully customizable; each organization can include their logo, workplace images, introductory messages, and the company’s unique policies and procedures for preventing and addressing workplace discrimination.

Learn more about Clear Law Institute’s full suite of online sexual harassment training.

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Online Sexual Harassment Training

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Online Sexual Harassment Training

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