Workplace discrimination goes far beyond the realm of human resources. Even those with primarily financial roles have a responsibility to ensure their approaches to management and day-to-day interactions promote inclusivity and minimize bias, as discriminatory missteps can have negative legal and reputational impacts on your organization.
Discrimination has become a growing concern as awareness of environmental, social and governance (ESG) and diversity, equity and inclusion (DE&I) continues to increase. ESG is important to the financial health of any company as stakeholders are increasingly invested in this measure of company risk and sustainability. Further, given the talent crunch, creating and communicating a supportive, inclusive and diverse work culture should be top of mind to help your organization attain and retain best-fit talent.
Forms of Discrimination & Ways to Prevent Claims
Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and other employment terms, conditions and privileges. A protected ADA individual:
- Has a physical or mental impairment that substantially limits one or more major life activities
- Has a record of such an impairment
- Is perceived by others as having such an impairment
Employers are required to make a reasonable accommodation for a qualified applicant or employee with a known disability. Exceptions can be made if the accommodation would impose an "undue hardship" on the employer’s business operations. An undue hardship is an action requiring significant difficulty or expense in light of an employer's size, financial resources, and operational nature and structure. Accommodations cannot lower an employer’s quality or production standards.
Reasonable accommodation may include but is not limited to:
- Making existing employee facilities readily accessible and usable by persons with disabilities
- Job restructuring
- Modifying work schedules
- Reassigning to a vacant position
- Acquiring or modifying equipment or devices
- Adjusting or modifying examinations, training materials or policies
- Providing qualified readers or interpreters
A recent Hiscox study found 21% of employees report experiencing workplace age discrimination. The Bureau of Labor Statistics predicts employees over the age of 55 will make up nearly 25% of the labor force by 2024. Workplace age discrimination, or ageism, involves unfavorable treatment of an applicant or employee based on age. The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people 40 or over in all employment aspects, including hiring, firing, pay, job assignments, promotions, layoffs, training and benefits.
Religious workplace discrimination involves unfavorable treatment due to religious beliefs. Federal law protects anyone who has sincerely held religious, ethical or moral beliefs and forbids discrimination in any aspect of employment (e.g., hiring, firing, pay, job assignments, promotions, layoff, training, benefits). Religious discrimination also involves a person who is married to or associated with an individual of a particular religion.
Observances or practices that employers should be aware of include:
- Worship services
- Religious attire or symbols
- Dietary restrictions
- Nonparticipation in various activities
According to the latest U.S. Census Bureau’s American Community Survey (ACS), women account for over 50% of the nation’s workforce. While there are various types of occupational gender-based discrimination, pregnancy is the most prevalent. In fact, the ACS reported that nearly one-third (32%) of all working women are mothers.
Pregnancy discrimination is an unfavorable treatment of female job applicants or employees based on pregnancy, childbirth or related medical condition. Such discrimination can bring multiple consequences for employers, including reputational damage, greater turnover rates and reduced overall workplace morale. Both federal and state-specific legislation prohibit pregnancy discrimination and pose liabilities (e.g., regulatory fines, costly lawsuits) for noncompliant employers.
Discrimination Risk Prevention
- Examine your hiring practices. Recruiters and interviewers should be trained to avoid discriminatory assumptions.
- Include more diversity within interview panels.
- Eliminate discriminatory-related information (e.g., date of birth, religious orientation) from applications.
- Implement consistent hiring practices. Keep questions limited to only those related to the position. Ensure all candidates are asked identical questions
- Clearly define forms of discrimination in your business’ diversity and inclusion efforts.
- Utilize workforce training to educate employees about acceptance.
- Evaluate your organizational culture, practices and policies to eliminate outdated assumptions and foster an accepting culture.
- Address discrimination in employment policies. A zero tolerance stance will deter discrimination and help employees feel more secure at work.
- Provide training to educate employees on illegal behaviors and reporting procedures for any discrimination incident.
- Offer anti-harassment training for managers and employees.
- Establish objective promotional criteria. Written evaluation measures can reduce bias or discrimination.
- Communicate to employees the importance of refraining from discriminatory harassment, insults or jokes.
- Carefully document disciplinary or performance-related actions and share them with all affected employees.
- Respond to claims immediately. Your investigations should include interviews with all parties involved and a review of relevant evidence.
- Provide a positive experience for your employees.
We’re Here to Help
The best prevention measure for employment-related discrimination is to provide routine discrimination education and training for your employees. Employers should secure employment practices liability insurance (EPLI) to protect your company from discrimination claims. This protection covers wrongful acts arising from the employment process, including discrimination. If you have questions about discrimination and whether your policy protects from allegations, connect with a member of our team.