Unintentional Discrimination In The Workplace

Unintentional discrimination in the workplace can occur when an employer is unintentionally showing prejudices against employees. Sometimes, employment discrimination is apparent and obvious, such as a sexist boss not hiring an applicant because she’s a female. Other times, it can be more subtle. The employer can still be held liable for discrimination even if the employer didn’t intentionally or knowingly discriminate.

From our offices in Red Bank, NJ, Marlton, NJ, Newark, NJ, New York, NY, and Philadelphia, PA McOmber McOmber & Luber, P.C. represents both employers and employees throughout the state in a wide range of unintentional discrimination matters. Our lawyers are known for their ability to provide effective advocacy and protect employees’ careers. Having handled cases for both employers and employees, we understand the specific tactical and strategic issues involved on both sides of an unintentional discrimination case. With our depth and breadth of experience, we can anticipate likely challenges and work tirelessly to overcome them.  

What is Unintentional Discrimination in the Workplace?

Unintentional discrimination can occur when employers’ policies adversely affect employees based on race, color, gender, age, pregnancy, or any other protected classification. These policies can seem like they are neutral, but end up having an outcome that negatively impacts members of different protected classes. Even if the employer did not mean to discriminate intentionally, they can still be held liable for policies that have a “disparate impact” or “adverse impact”. 

Examples of unintentionally discriminatory workplace policies can include:

• Dress code policies that are unfair or restrictive to women.
• Hairstyle policies that disproportionately affect employees of color.
• Height/weight requirements for more physical jobs.
• Requiring certain documentation for employment that discriminates against immigrants.
• Required workplace team building or social activities that leave out certain employees based on age, pregnancy, or disability.

How Do I Prove That a Policy is Discriminatory? 

In order to prove that you have been discriminated against at work, you must be able to show evidence that you were treated differently to another employee with similar circumstances and that this treatment happened because of your membership in a protected class. If the discrimination was truly unintentional, this will usually include circumstantial evidence showing that your employer acted differently than usual or bypassed standard protocols because of your membership in a protected class, for example: 

• You are fired or demoted under unclear circumstances.
• A history of other employees in protected classes being treated differently.
• A seemingly innocuous workplace policy places you at a personal disadvantage.
• The person applying the policy, practice or rule cannot justify the policy. 

Who Is Protected By New Jersey’s Law Against Discrimination?

The NJLAD “makes it unlawful to subject people to discrimination or harassment” based on a specific list of classifications. Under New Jersey law, the following types of discrimination in the workplace are prohibited:

• Affectional or Sexual Orientation Discrimination
• Age Discrimination
• AIDS or HIV Status Discrimination
• Atypical Hereditary Cellular or Blood trait, or Genetic Information Discrimination
• Breastfeeding / Pumping in the Workplace Discrimination
• Chronic Illness Workplace Discrimination
• Disability Discrimination including Mental, Physical, or Perceived Disability
• Domestic Partnership or Civil Union Status Discrimination
• Gender Discrimination
• Gender Identity Discrimination or Gender Expression Discrimination
• Genetic Discrimination
• Hairstyle Discrimination
• Mental Illness Discrimination
• Military Employment Discrimination
• Language Discrimination
• LGBTQ Discrimination / Sexual Orientation Discrimination including:
  • Lesbian
  • Gay
  • Bisexual
  • Transgender
  • Transsexual
  • Queer
  • Questioning
  • Intersex
  • Asexual
  • Pansexual
  • Ally
• Marital Status Discrimination
• Maternity Leave Discrimination
• Medical Marijuana Discrimination
• National Origin Discrimination or Ancestry Discrimination
• Discrimination Against Immigrants in the Workplace
• New Jersey Paid Sick Leave
• Pregnancy Discrimination
• Racial Discrimination including Color Discrimination
• Religious Discrimination
• Sexual Harassment in the Workplace
• Transgender Discrimination
• Wage Discrimination

How Can Employers Prove that Discrimination Was Unintentional?

An employer can defend their policy and claim that it is not discriminatory, or at least not intentionally discriminatory, on several grounds, including:

• Necessity. The policy in question is job-related and necessary for workplace productivity or safety.

• Lack of Interest. The group supposedly discriminated against does not apply for the job in question due to a lack of interest; for example, a workplace is primarily made up of men because women simply do not apply.

• Non-eligibility. The workplace is not eligible for anti-discrimination laws; for example, it has too few employees to be covered by The Americans With Disabilities Act (ADA), which only applies to businesses with 15 or more employees.

How Can Employers Avoid Unintentional Discrimination?

Employers can avoid unintentionally discriminatory policies by taking several steps:

• Only enact job requirements and policies that directly relate to productivity and business goals, and do not run the risk of singling out any employees.
• Recruit for a wide set of sources and ensure that candidates are not being discouraged or denied during the hiring process.
• Keep an eye out for potential issues. If all of your employees are a certain gender or race, or certain employees tend to not last as long, ask yourself why. There could be policies or a workplace environment that discriminates or alienates certain groups of people.

Where Do I File An Unintentional Discrimination Complaint?

If you believe your employer has discriminated against you based on your race, age, pregnancy, disability, or other protected classification, you should contact an employment discrimination attorney first to discuss your rights and options.

After speaking with a lawyer, he or she may recommend filing an internal complaint with your company’s human resources department or labor union. This gives your employer an opportunity to resolve the issue and puts them on notice. Depending on the employer’s action, such as failing to correct the issue, a lawsuit may be considered.

An Experienced NJ Unintentional Discrimination Attorney Can Help You

Unintentional discrimination is a serious problem for both employers and employees that can damage workplace morale, diminish the dignity and livelihood of employees, and result in costly lawsuits. Whether you are an employer defending against a discrimination claim, or an employee who has been subjected to discrimination, our unintentional discrimination attorneys in Red Bank, NJ, Marlton, NJ, Newark, NJ, New York, NY, and Philadelphia, PA can take action. We will provide you with a clear and candid evaluation of any potential unintentional discrimination claims, as well as all legal options and recourse available. Contact us today to discuss your case.