Discrimination |
June 21, 2017

Identifying Discrimination in the Workplace

Learning how to identify employment discrimination can guide an employee’s decision to contact a San Francisco discrimination attorney

san francisco discrimination attorney discusses identifying discrimination in the workplaceEmployment discrimination means that an employee is treated less favorably based on the employee’s protected characteristic or because the employee belongs to a class of people who have historically been subjected to unfair treatment. A San Francisco employment discrimination lawyer can help employees who have experienced workplace discrimination.

California and federal employment discrimination laws prohibit employers from treating an employee unfavorably because the employee belongs to a protected class. In California, it is unlawful to discriminate against employees because of their:

  • Race or color
  • National origin or ancestry
  • Sex
  • Sexual orientation or gender identity
  • Disability
  • Age
  • Religion
  • Pregnancy
  • Marital status
  • Genetic information

Knowing that discrimination is unlawful and recognizing it in the workplace are different things. Here are things a discrimination lawyer in San Francisco might look for as evidence of discrimination.

Workplace Harassment

Harassment is a form of discrimination if, as in the case of sexual or racial harassment, it is directed against an employee because the employee belongs to a protected class.

Sexual jokes, mocking an accent, and race-based insults or slurs are the kinds of harassment that may provide evidence of discrimination. The harassment itself may be actionable when it is so pervasive and offensive that it seriously interferes with an employee’s ability to work.

When harassment is committed by an owner or manager, it may be evidence of a discriminatory attitude that explains unfair employment decisions. For example, an employee might reasonably believe that the denial of a raise or promotion is discriminatory when the decision-maker has consistently belittled the employee because of the employee’s race or gender.

Disparate Treatment

In many cases, discrimination is not accompanied by “smoking gun” evidence that proves discriminatory intent. In other words, there are few cases where a supervisor or manager makes a comment that, on its face, reveals a discriminatory intent.

employee discrimination in the workplaceFor that reason, one way to recognize discrimination is to ask if all employees are receiving equal treatment regardless of their membership in a protected class. That doesn’t mean that management needs to assure that every employee receives the same outcome. Employers typically make decisions on the basis of merit, rewarding the most productive or efficient or talented employees with higher wages, promotions, or better assignments. It is not discriminatory for an employer to make those decisions, as long as an employee’s membership in a protected class does not influence the decision.

Rather, discrimination occurs when an employee is treated less favorably than other employees because of that employee’s membership in a protected class. The law refers to unequal treatment of employees as “disparate treatment.”

For example, if male employees receive raises or promotions that are denied to female employees, or if Caucasian employees are promoted while African-American employees are not, the disparate treatment of those employees might suggest that the employment decisions were discriminatory.

Employer’s False Explanation

Disparate treatment by itself may not be enough to indicate that the employer had a discriminatory motivation for treating the employees differently. The next question to ask is whether the employer has a reasonable, nondiscriminatory explanation for the disparate treatment.

When an employer puts forth a reason for taking an employment action, and the employee can demonstrate that the employer’s reason is false, then there may be an inference that the true reason is discriminatory.

The Absence of Objective Criteria

Businesses that want to avoid discrimination often adopt business practices that assure employment decisions are based to a large extent on objective—rather than subjective–criteria. Sales figures and similar measurements of results an employee has achieved are the kind of objective data that a business might rely upon to decide which employees deserve a raise or promotion and which might be terminated. When employers base employment decisions on objective criteria like seniority or measurable performance standards, then employers may have an easier time proving that an employment decision is based on a legitimate, non-discriminatory reason.

Performance evaluations may not be entirely objective, but employers often try to use standardized assessments while training supervisors and managers to prepare the evaluation using the same criteria for each employee whose performance is reviewed. Businesses may be able to prevent discrimination by requiring managers and supervisors to document poor performance with quantifiable data.

When employers do not measure all employees who hold similar jobs by the same yardstick, or measure employees using subjective criteria that cannot be verified, then it is easier for discrimination to occur. The failure to base employment decisions on objective criteria, coupled with other evidence, may create reason to believe that an adverse employment decision was discriminatory.

Even when all employees are evaluated in the same way, a manager with a discriminatory motive might make false statements to support a poor performance evaluation. Again, reliance on a falsehood might be seen as evidence that the manager is masking a discriminatory intent.

When Discrimination is Suspected

Employees who suspect that employers discriminated against them when making an employment decision can get helpful advice by speaking to an employment lawyer in San Francisco. The employment attorneys at Minnis & Smallets have years of experience representing employees in discrimination cases. To schedule an appointment, call 1-415-551-0885 or submit our online contact form.1-415-551-0885 or submit our online contact form.