wrongful terminationDiscrimination, particularly in the workplace, is a common topic today. In 2018 alone, the Equal Employment Opportunity Commission, or the EEOC, received 76,418 charges of workplace discrimination. Cases of workplace discrimination should always be handled carefully. Thorough research when it comes to alleged workplace inequities or unfair treatment is important for both the employee and the company. Employees deserve to have a safe and equitable workplace and employers need to be assured that their human resource decisions are not giving rise to potential claims of discrimination in pay, promotions, hiring and/or terminations, to name several areas where litigation or agency investigations can arise.

What is Workplace Discrimination?

Workplace discrimination refers to the unfair treatment, or disparate impacts on employees due to them belonging to a certain group of people, also referred to as protected classes. Title VII of the Civil Rights Act of 1964 was put in place to make it illegal for workplaces to discriminate against protected classes. Workplace discrimination at the individual level can occur in many forms, some of which, such as verbal, can be difficult to prove. Workplace discrimination can have an effect on any aspect of a person’s professional life. An employee who is discriminated against might experience harassment at work, receive less pay, be passed up for promotions, or be wrongfully terminated. This can also occur during the hiring process as well (before a person is even officially employed by a company). Anyone can commit workplace discrimination, including supervisors, coworkers, and even those within a protected class. An employee prevailing in litigation on the basis of discrimination can claim, and be awarded, substantial monetary damages, including those for alleged economic loss.

Types of Workplace Discrimination

There are a number of different groups who are at risk of being discriminated against, including while they are at work. Some instances of workplace discrimination that are reported to the EEOC may involve more than one type of discrimination. 

Retaliation

Retaliation is the most common type of discrimination in the workplace, making up over half of all discrimination complaints in 2018 with a total of 39,469 charges filed, according to the EEOC. Retaliation occurs when an employee is treated unfairly due to speaking out about issues in the workplace. Reporting wrongdoings is a protected activity in the workplace and workers are allowed to challenge them. The reason for retaliation might even be that an employee made a complaint about another type of discrimination.   If retaliation is proven at trial, the wronged employee is likely to be awarded economic, and non-economic, monetary damages.

Sex

This is the second most common type of workplace discrimination, with slightly over 30% of all charges filed being those involving a person’s sex. Discrimination against a person’s sex can include their gender, sexual orientation, or transgender status. Sexual harassment is also considered to be a type of sex discrimination, which had a 13.6% increase in 2017. Discrimination against women who are pregnant, may become pregnant, or have recently given birth is illegal as well.  Unlike retaliation claims, sex discrimination is likely to be alleged on a class-wide basis, potentially for all female employees within a company. Defending class claims generally requires analysis of a company’s source databases and is aided by statistical analyses (for either liability issues, damages, or both).

Disability

Both the Americans with Disabilities Act and the Rehabilitation Act of 1973 make it illegal for a person with disabilities to be treated poorly at work due to it. Employers are expected to make accommodations for people with disabilities within reason. Discrimination against people with disabilities is another common form of discrimination, affecting nearly the same amount of people as discrimination against sex.  While legal claims of disability discrimination tend to be individual in nature, they can involve a class of persons alleging common treatment.

Race/Color

These types of discrimination involve unfair treatment against someone due to their race or the color of their skin tone. Color and race may have similarities, but they are not always the same. Race discrimination was the fourth most frequent charge with 24,600 filed charges, while color discrimination had 3,166 filed charges. Race/Color discrimination can be individually claimed, but class actions of a common, claimed race or color discrimination are frequently brought as a class, requiring statistical analysis to make, or rebut, alleged class-wide claims based on company source data. 

Age

The Age Discrimination in Employ Act only protects people who are over the age of 40 from discrimination at work. Equal opportunities must be given to all employees regardless of their age. Age discrimination had 16,111 charges in 2018, making it the fourth most frequently filed charge of workplace discrimination that year.  Like sex and race/color discrimination, the most common claims against companies are likely to be brought as class actions, and like sex and race/color class actions, statistical analysis of company data will be needed, especially to defend against such claims.

Religion 

All religions are protected from discrimination in the workplace, as well as people who have strong moral or ethical beliefs. Some religions might require special accommodations during the workday, which employers are required to provide so long as it doesn’t cause hardships. Religious accommodations might include certain types of dressing or allowing time for religious observances. In 2018 there were 2,859 charges filed by the EEOC for religious discrimination.

National Origin

Employees can not be discriminated against for their national origin, ethnicity, or accent. This includes discriminating against a person who only appears to have a certain national origin, even if they are not a part of it. This made up 9.3% of workplace discrimination charges filed in 2018, but many of these cases involved class-wide claims requiring substantial data analysis.   

Equal Pay Act

The Equal Pay Act requires employers to pay men and women equally for the same job. Receiving equal pay for equal jobs refers not only to salary, but other aspects such as paid time off, life insurance, bonuses, and other benefits as well. When pay inequalities occur, it is illegal for employers to lower one gender’s pay to make it equal. There were 1,066 filed charges of pay inequalities in 2018.

Genetic Information

A person’s genetic information can refer to a few different things. Genetic information can be the information found through genetic testing, or the genetic tests of family members, as well as the risk of getting a disease or disorder due to it. This is the least reported type of discrimination, with 220 charges filed for it in 2018. 

Consulting Services for Workplace Discrimination

Allegations of discrimination can affect every member of a company. In addition, there’s a significant amount of information that needs to be taken into consideration, especially in individual-level matters where economic damages after termination are being claimed. In single-plaintiff matters, analyzing data on local labor markets, post-termination mitigation efforts and estimated economic damages can greatly assist the defense in economic damage claims.  In class action claims of adverse treatment or impacts, data from multiple company source files may be necessary to consider, and statistical analyses arising from these data can be essential to defending against a class-wide claim of discrimination.  At Welch Consulting, we have a number of expert labor economists who work with both class action and single-plaintiff workplace discrimination cases. 

Welch Consulting provides consulting, and testifying, services for all industries and has extensive experience when it comes to analyzing data regarding workplace discrimination. The discovery phase, in particular, when data collection, organization, and analysis can help shape a defense, is crucial.  If, in spite of proactive analysis, litigation proceeds, Welch Consulting can provide expert witnesses in any workplace discrimination lawsuit. 

For more information about how our services benefit workplace discrimination lawsuits, contact Welch Consulting to speak to one of our experts.  

 

ABOUT THE AUTHOR

G. Edward (Ted) Anderson is a Senior Economist and Principal of Welch Consulting, located in the Los Angeles, California office.

 

 

The opinions expressed are those of the author(s) and do not necessarily reflect the views of our firm or its clients.