What is Unlawful Workplace Discrimination?

WORKPLACE DISCRIMINATION

Workplaces discriminate all the time. And not all of it is unlawful. For example, an employer may hire the candidate with the most experience and education. This is discrimination based on a candidate’s experience and education. The law recognizes this form of discrimination is lawful because there is a legitimate reason for the business to treat people differently based on their experience and education.

But there are things an employer cannot consider when making employment decisions. Under federal law, an employer cannot discriminate against an employee based on race, color, religion, sex, national origin, disability, or age (40+). Colorado law has even broader protections that include disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, age (40+), national origin, ancestry, marital status, pregnancy, or sharing wage information with coworkers.

In practice, this means an employer cannot consider any of these things when making a decision about an employee. An employer cannot refuse to hire, to fire, refuse to promote, demote, harass, or treat employees differently in matters of compensation or terms and conditions of employment based on these characteristics.

EXAMPLES OF UNLAWFUL WORKPLACE DISCRIMINATION

There are many ways that an employer may unlawfully discriminate against employees. A very common one is an employer that refuses to hire or promote an employee that is pregnant because the employer is concerned that the employee will need to miss work to care for the child. Rarely do employers outright tell the employee this is the reason they are not being chosen. Instead, they may tell the employee that there are more qualified candidates, or that the employee has had some performance issues lately (even if this has never been brought up before). But if the decision was actually motivated by the employee’s pregnancy, then it is still unlawful.

Another common form of discrimination is a supervisor treating an employee differently based on their race or age by giving them unfavorable shifts or being quick to discipline them for minor infractions that other employees are not disciplined for. Once again, the supervisor may not outright tell the employee that they are treating them differently because of their protected class, but when looking at similarly situated employees there is a marked difference in treatment. 

Sometimes employers use coded language to try and cover their discriminatory intent. An employer that is engaged in age discrimination may tell employees the company is looking for “new blood” or “can’t be stuck in the past.” What this may actually mean is the employer has a discriminatory animus against older employees. Even if the employer isn’t aware that this behavior is unlawful, or the employer has good intentions, they can still be held accountable for their discriminatory treatment. Other evidence of a discriminatory animus can be if a supervisor uses racial slurs in the workplace or tells inappropriate sexual jokes. 

PROTECTED WORKPLACE ACTIVITY

The law also prohibits employers from discriminating against employees for engaging in protected activity. Protected activity may include taking protected medical leave (such as FMLA or FAMLI leave), requesting a reasonable accommodation for a disability, or filing a discrimination complaint with the Equal Employment Opportunity Commission (EEOC) or Colorado Civil Rights Division (CCRD). An employer cannot take adverse action against an employee for engaging in these activities.

However, employers sometimes do just that. An employee may notice that when they get back from protected leave their supervisor treats them differently. Their supervisor may soon start writing up the employee for minor infractions, or making comments to others about how the employee is not “dependable” because they are out for long periods of time. 

A common way to know if an employer retaliated against an employee for engaging in protected activity is the time between the protected activity and the adverse action.If an employee comes back from protected leave and is immediately put on a performance improvement plan, or they are transferred to an unfavorable shift, that in itself may be evidence of unlawful retaliation.

REMEDIES FOR UNLAWFUL DISCRIMINATION

Employees who are subjected to unlawful discrimination have recourse. First, they can file a discrimination complaint of discrimination with the EEOC or CCRD, as appropriate. If the agency does not find a violation then the employee can file a lawsuit against the employer. Such lawsuits can seek damages that may include lost wages, benefits, and other economic damages, emotional pain and suffering, attorneys fees and costs, and possibly front pay if the employee was unlawfully terminated. The employee may also be able to seek an injunction from the court, which is an order prohibiting the employer from continuing the discriminatory activity. 

If an employee in Colorado believes they are being unlawfully discriminated against then they can reach out to Van Hall Employment Law to determine if they have a claim.