Recognizing Discriminatory Acts that Are Less Obvious but Still Insidious
Workplace discrimination can take many forms. Some of its manifestations, like sexual harassment or the use of offensive slurs, are brazen, but discrimination can also take subtler forms that can be more challenging to immediately recognize.
Identifying workplace discrimination is critical to a healthy working environment. You and your colleagues are entitled to a workplace free of harassment, abuse, and any other mistreatment that might risk your safety. Discrimination, left unabated, can take a heavy toll on your mental and emotional health, and chronic issues can prevent you from advancing in your workplace or result in you unlawfully losing your job altogether. Below, we cover the basics of what qualifies as discrimination and identify 4 of the subtler forms it can take.
You are protected from discriminatory practices by both federal and California law. It can occur either in the course of your employment or during the hiring process.
California’s Fair Employment and Housing Act specifically prohibits discrimination as a result of any of the following:
- Sex (including sexual identity and orientation)
- Gender (including gender identity)
- Race or national origin
- Disability or medical condition
- Military or veteran status
- Marital status
- Age (for those over 40 years-old)
#1: Reduction of Hours
Many people associate workplace discrimination with wrongful termination, in which a person is fired unlawfully. Firing someone as a result of any of the elements named above – including race, sex, or a pregnancy – is considered wrongful termination and can be legally challenged.
Knowing how obvious wrongful termination can appear, many employers will avoid outright firing an employee they are discriminating against. They will instead reduce the hours of the involved worker to make their employment less lucrative, in turn incentivizing them to leave the job voluntarily. This protects the employer while dramatically hurting the employee, who sees a substantial or complete loss of value in their employment.
Consider an example where a boss learns their employee is gay. Uncomfortable with this, the boss begins to reduce the employee’s hours. No one else’s hours are reduced, and the employee has no work-related problems that could explain the change. The reductions continue until the employee is getting so few hours that it is not sustainable for them to continue to work the job, so they are forced to quit. The boss has engaged in subtle workplace discrimination and can now claim the employee voluntarily left.
It is important to remember that sometimes reductions in hours are a fact of business, especially when a company is experiencing a financial downturn. If you experience a reduction in hours you feel is unjustified or inconsistent with your work performance, you should ask your supervisor in writing for their reason for the change. If the reduction of hours is consistent across your colleagues, there probably is not sufficient evidence for discrimination. If the reduction is specific to you, though, and your peers have not seen a similar drop in work, you may have a case.
#2: Undesirable Shifts and Assignments
Discrimination is not limited to reducing hours or shifts. Workplace discrimination can also take the form of an employee being deliberately given what are considered undesirable shifts or assignments, with the goal of compelling them to quit. An employer’s motives are similar to the reduction of hours example in that they hope a worker becomes so frustrated they end their employment voluntarily.
Undesirable shifts are typically ones taking place at odd or inopportune hours, like late at night or in the very early morning. Undesirable assignments can vary but are typically unpleasant in nature and are avoided where possible by colleagues; this can include cleaning a bathroom, for example. Receiving undesirable shifts or assignments every once in a while does not qualify as discrimination, but being continuously subject to them when your peers are not may be a sign of workplace discrimination.
#3: Disenfranchisement from Duties
Another form of workplace discrimination can see a boss or supervisor attempt to extricate an employee from their regular duties or exclude them from staff meetings or other communications. This pattern of discriminatory behavior can be particularly pernicious, as it can undermine your ability to effectively do your job, reduce your value to the company, and ultimately lead to a situation where you are dismissed as a result of your reduced responsibilities and performance.
An example could see an employee becoming pregnant. She discloses her pregnancy to her boss, who begins excluding her from department-wide emails she was previously privy to. She is also not told about staff meetings she would have previously participated in. Soon, some of her job duties are reassigned to her peers, leaving her with comparatively little work to do. In a performance review some months later, the employee is disciplined for being less effective in getting work done and is described as not being communicative with the rest of her department. Despite her objections, she is ultimately let go, citing work performance. This is an example of workplace discrimination as a result of the employee’s pregnancy, as the managers involved were likely attempting to avoid having to permit maternity leave.
As you can see from this example, this type of workplace discrimination can be tough to prove. To combat the problem, you should document all forms of possible disenfranchisement and create a paper trail in requesting why you are left off email chains or omitted from department meetings. Request written justifications for the reassignment of duties and object, if possible. Some employers will abandon their efforts if they are consistently challenged, and all of this written evidence can be helpful should you have to build a workplace discrimination case.
#4: Being Paid Less Than Your Peers
Talking about how much you make can be uncomfortable, but it might be necessary to determine if you are being discriminated against. A depressingly common form of workplace discrimination occurs when an employer pays someone less than another who does similar work, with a similar level of experience and performance.
In other words, if your boss is intentionally paying you less as a result of your protected identity when compared to another employee doing similar work, you are being discriminated against. For example, if you are a person of color and you find that your colleague – who has similar job duties, level of experience, and work performance – gets paid more than you, you may be experiencing discrimination. Employers will often point to “experience” or “performance” as justifications for lower pay, but these can often be excuses to mask real prejudices.
If your level of pay feels especially low, you should consider speaking to your colleagues about their rates or salaries. Despite what your employer might claim, you are legally allowed to discuss wages with fellow employees, even if you are not part of a union or labor organization effort. If they attempt to fire or demote you for doing so, they are engaging in another unlawful practice known as workplace retaliation.
We Can Help You Fight Workplace Discrimination
Facing workplace discrimination can be intimidating, especially when your income and livelihood are involved. At K2 Employment Law Group, we devote our practice to fighting for employee rights throughout California. We are empathetic to the stress, uncertainty, and frustration discrimination brings and want to help you get the justice you deserve.
If you believe you are experiencing workplace discrimination, do not wait to schedule a free case evaluation by calling (800) 590-7674 or contacting us online.