BUSINESS: The Ultimate Resource

April 2003 Upgrade #7

ACTIONLIST
How to Deal with Discrimination Against You
Getting Started
Discrimination against individuals on the basis of their race, age, gender, sexual orientation, cultural background, and physical or mental impairment is unlawful. In the United States, the purpose of antidiscrimination laws, both federal and state, is to reduce, if not eliminate, discrimination in the workplace and in the population as a whole. Everyone has an equal right to employment with fair remuneration in an environment that is free from discrimination. If this is not your experience, you may wish to take some action.

FAQs
I believe that I have been discriminated against on the basis of my ethnic background. What should I do? Firstly, dont wait too long, unless you are unsure of your claim and need time to document your case more thoroughly. Racial discrimination is not easy to prove, so you will need to gather as much evidence as possible and create a good record of the incident(s) along with a list of any witnesses. Seek guidance from trusted friends and professional confidants at the earliest opportunity and explore the legal assistance that you may be eligible for. You can go to your Human Resources department to find out about the process for filing a complaint or action. You may wish to consult with the local chapter of an organization devoted to civil rights (NAACP, for example, or ACLU). If you belong to a union, there may be resources available there. And, you can always consult a private attorney, too. My boss has always been respectful before, but he recently made a sexual advance while we were at an official function and I felt really threatened. Am I able to take action ? You do not have to experience persistent sexual advances before you have grounds for a complaint. If of sufficient magnitude, one incident can amount to sex discrimination. However, before you start down this road, you may be well advised to take your complaint to the Human Resources department or to a trusted superior to see if there are any internal policies that can support or protect you and help to resolve the situation. If possible, an early solution would be best for all parties. I have discovered that my colleague receives a much better package of benefits than I do, and was recently awarded a bonus that I knew nothing about. Do I have grounds for a claim? Yes, equal pay law embraces benefits, bonuses, pensions, holiday, and sick pay as well as salary. If you can prove that your job is comparable with that of your

Bloomsbury Publishing Plc 2003

BUSINESS: The Ultimate Resource

April 2003 Upgrade #7

colleague, involving the same level of skills and knowledge, then you are likely to have a case. However, you must be able to demonstrate this before you can proceed so dont be too hasty and do your homework first.

Making It Happen
Discrimination is a huge subject, and there are many resources you can turn to if you feel that you have been discriminated against. However, the following will provide a useful starting point. Equal Pay There are two ways of looking at equal pay. Sometimes a person is paid less than a coworker for doing the same job. Other times, one individual is paid less than another for doing work of equivalent value. Both these situations are discriminatory and may be unlawful. Of the two, the second one is going to be the most challenging to prove; there must be ample evidence that equivalent is well defined and that you can point to other cases. Equal pay rights apply to both sexes. Equal pay extends beyond just wages and salaries, it also covers bonuses, benefits, overtime, holiday pay, sick pay, performance-related pay, and retirement plans. There are several ways in which pay discrimination can take place:

if a woman is appointed on a lower salary than her male counterparts; if a woman on maternity leave is denied a bonus received by other staff; if the jobs that women occupy are given different job titles and grades to those of male colleagues doing virtually the same work; if all staff are suddenly placed on contract and all previous employee benefits are withdrawn.

Your rights to equal pay are set out in federal and state law, including the Equal Pay Act of 1963 (see below for a Web site listing of the Equal Employment Opportunity Commission, or call your states department of employment for details). Sex Discrimination The Civil Rights Act of 1964 makes it unlawful for employers to treat women or men less favorably in employment matters because of their sex or marital status. For more serious crimescalled hate crimes, other laws include the Federal Violence Against Women Act (1994) and the Violent Crime Control and Law Enforcement Act (1994). If you were dismissed for poor performance while a poorly performing colleague of the opposite gender retained their job, you may have a claim for sex discrimination. This would also be the case if you were dismissed for being persistently late while a colleague of the opposite sex with the same timekeeping habits was not. As in all cases of discrimination, be careful and be objective about your research; you dont want the case dismissed because of your own biases or because of inadequate facts to support your claim. If you were terminated you may have a claim if you can show that the selection criteria used affected one sex more than the other and that there was no rational justification for this.

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Sexual Harassment The Civil Rights Act of 1964 (expanded in 1991) makes it unlawful for employers to treat a woman less favorably than a man (or a man less favorably than a woman) by subjecting her or him to any emotional or physical harm. The same law protects gay, lesbian, and transgender individuals, while some individual states have more specific laws dealing with discrimination based on sexual orientation. You can only make a claim of sexual harassment if the incident(s) took place during the course of employmentthat is at work or at a work-related function. Sexual harassment is defined as unwelcome physical, verbal or non-verbal conduct of a sexual nature. Cases are most likely to be brought as civil claims. Examples of sexual harassment at work include:

requests or demands for sexual favors by either gender comments about your appearance which are derisory or demeaning remarks which are designed to cause offence intrusive questions or speculations about your sex life any behaviors related to gender that create an intimidating, hostile, or humiliating working environment

Incidents involving touching or more extreme physical threats are criminal offences and should be reported to the police. Disability Discrimination If you are disabled, or have had a disability, the Americans with Disabilities Act makes it unlawful for you to be discriminated against in the areas of:

employment access to goods, facilities, and services the management, buying, or renting of land or property

The ADA was passed in 1990 to introduce new measures aimed at ending the discrimination which many disabled people face in these areas. The term disability is used to describe anyone with a physical or mental impairment which has a substantial and long-term adverse effect upon their ability to carry out normal day-to-day activities. This includes:

physical impairmentthe weakening or adverse change of a part of the body caused through illness, by accident, or from birth; mental impairmentlearning disabilities and all recognized mental illnesses.

Age Discrimination The Age Discrimination in Employment Act (1967) is designed to protect employees and job applicants older than 40 from discrimination based solely on their age. The law extends to hiring, firing, promotion, layoff, compensation, benefits, job assignments, training, and more. Under the Older Workers Benefit Protection Act (1990), the ADEA law was amended to include more specifics about the offering and withdrawal of benefits.

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The ADEA applies to employers with more than 20 employees, including government agencies. Victimization It is also illegal to retaliate against an employee who chooses to bring such a case against his or her employer. People who have helped you by giving evidence or providing information are also protected from victimization.

Common Mistakes
Rushing into Legislation Rushing to make a claim, or threatening to do so, because you believe that you have been discriminated against at work is a mistake. The process of taking action is lengthy and evidence needs to be produced to back up your claim. Even when this is available, the procedures are stressful and time consuming. It is always best to see if you can find another way around the problem. Start by giving feedback to the perpetrator or having a discussion with the Human Resources department or some external source of advice. Not Being Sure of Your Ground Misunderstanding the context in which behaviors have been experienced can lead to false claims of discrimination. It is important to be sure of your facts and do all the research necessary to ensure that you have the grounds for a claim. Although you will have to talk with colleagues and perhaps consult with others in the organization, it is best to do this in a confidential manner to avoid drawing attention to a situation that may not develop into a claim. Forgetting That Legislation Applies to Your Employment, Not Just Your Workplace Thinking that being off duty or away from the work premises with your colleagues protects you from any risk of being accused of harassment is a mistake. Sexual discrimination is outlawed in a wide variety of contexts that are related to your employment. In certain circumstances, action can be taken if it can be shown that the (social) event at which the incident occurred took place in a context that was linked to your employment.

For More Information

Books: Demars, Nan. You Want Me to Do What?: When, Where, and How to Draw the Line at Work. Riverside, NJ: Simon & Schuster, 1998. Edmunds, Vanessa, et al. Harassment At Work. Bristol: Jordans, 1998. Florence, Mari, and Ed Fortson. Sex at Work: Attraction, Harassment, Flirtation and Discrimination. Lansdowne, PA: Silver Lake Publishing, 2001. Ishmael, Angela. Harassment, Bullying and Violence at Work. London: Spiro Press, 1999. Web Sites: American Civil Liberties Union: www.aclu.org

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BUSINESS: The Ultimate Resource

April 2003 Upgrade #7

Anti Defamation League: www.adl.org Federal Equal Employment Opportunity Commission: www.eeoc.gov Global action on ageing: www.globalaging.org/elderrights/world/uklabor.htm U.S. Department of Labor: www.dol.gov

Bloomsbury Publishing Plc 2003