“I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal… I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
Over 50 years ago, Dr. Martin Luther King Jr. proclaimed these historic words. Shortly after that, Title VII, the first civil rights legislation affecting the workplace was enacted, prohibiting employers from discriminating against individuals based on sex, race, color, national origin and religion.
As we commemorate Dr. King’s birthday, it’s worth taking a look at how we’re faring when it comes to workplace diversity. Over the years, there has been significant progress as women and minority workers have entered the workforce in record numbers. However, more still needs to be done.
Beyond equal employment policies, multi-channel complaint procedures and comprehensive training for employees and supervisors, emerging challenges require new strategies and solutions to protect individuals from discrimination and harassment. Here are five strategies on how employers can strive to create a more diverse and inclusive workplace that will improve the lives of all individuals.
Race discrimination today often persists in more subtle forms. Employers should caution employees and supervisors about stereotypes, racially-charged language and jokes, cartoons, epithets and slurs which may be intended to humor but could create a hostile work environment.
It also is imperative to ensure that facially neutral policies, hiring procedures and employment tests do not have an adverse impact on certain racial groups. All such policies should be job-related and necessary to the operation of the business. In fact, the Equal Employment Opportunity Commission (EEOC) has stated that while an employer has a right to conduct a criminal background check and obtain criminal history information, it should be careful in doing so as this may disproportionately exclude certain individuals based on their race and/or national origin.
According to the US Census, by 2050 there will be no racial or ethnic majority in the United States. As a consequence, the American workforce is becoming increasingly ethnically diverse as large number of immigrants from Asia, the Middle East, Africa and the Caribbean have joined the workforce and are highly represented in many of the country’s largest growth occupations. Thus, employers must be especially vigilant to steer clear of discrimination and harassment based on national origin, which includes ethnicity as well as physical, linguistic or cultural traits.
In response to an increase in national origin discrimination claims, the EEOC recently released updated guidance and provided some useful tips:
- Use a variety of recruitment tools beyond word of mouth to avoid excluding certain groups and maintaining make-up of current workforce;
- Carefully evaluate any employment decisions or policies based on language and accent (such as an English-only policy) and make sure they are based on legitimate, non-discriminatory business criteria;
- Carefully consider whether accommodation requests are based on ethnic or cultural traditions that may be tied to religious beliefs and thus entitled to accommodation;
- Translate policies and employee handbooks into other languages if needed; and
- Make sure not to discriminate based on national origin when conducting any background or security checks as well as during the employment eligibility authorization process.
Sexual Orientation and Gender Identity
Although Title VII still does not explicitly consider sexual orientation and gender identity as protected classes, the EEOC and federal courts have found that discrimination based on sexual orientation and gender identity is a form of sex discrimination. Further, a significant number of states and municipalities prohibit discrimination and harassment against lesbian, gay, bisexual and transgender (LGBT) individuals.
In 2015 the US Supreme Court legalized same sex marriage and said that same-sex couples should be afforded the same rights and benefits as opposite-sex couples. Based on these changes, employers should do the following:
- Provide equal benefits and coverage and make sure that policies do not discriminate based on sex, sexual orientation or gender identity;
- Make sure grooming dress codes do not discriminate and allow individuals to dress consistent with their gender identity;
- Provide support to transitioning employees especially with regard to name changes, employee records, communicating with co-workers and third parties, time off for treatment, confidentiality and privacy issues; and
- Be sensitive when it comes to restroom and locker room use and be willing to provide accommodations. Individuals should be permitted use the restroom or locker room that corresponds with their current gender identity regardless of the individual’s sex at birth and without proof of identity.
Even though the Equal Pay Act mandates equal pay without regard to gender unless the decision is based on a legitimate non-discriminatory reason, the average full-time working woman today earns just 79 cents for every dollar a man earns for doing the same work. To address this issue, the EEOC will begin to collect information on wages and hours worked starting in 2018, in addition to race, gender and ethnicity, in an effort to eradicate wage discrimination.
The EEOC also recently invited public comment on its revised sexual harassment guidance. Some best practices to minimize the risk of a sex discrimination claim include:
- Provide equal opportunities for all women, including those who are pregnant, breastfeeding or caregivers;
- Provide reasonable accommodations to pregnant women such as a stool to sit on, increased water, and rest breaks and breastfeeding women (including a private lactation room); and
- Make sure employment ads are gender-neutral and avoid steering women into positions with lower pay and opportunity than male candidates with similar qualifications.
The Americans with Disabilities Act (ADA) prohibits discrimination against an individual with a disability, an individual who is perceived as having a disability or one who is regarded as having a disability. It also states that employers should provide reasonable accommodations if doing so would not create an undue hardship.
In recent years, the definition of a disability has been significantly expanded to include mental health conditions, temporary and episodic conditions, and ones that are in remission. In order to make the workplace more disability friendly, an employer should do the following:
- Make sure the workplace is physically accessible and ADA compliant;
- Avoid assumptions, generalizations and stereotypes about abilities;
- Steer clear of outdated terms such as “handicapped” and “crippled“ and raise awareness;
- Focus on an individual’s ability to do the job whether he or she can perform the essential functions of the position; and
- Explore all reasonable accommodations which would permit an individual to do his or her job, such as modifying their equipment and certain nonessential tasks.