What Does and Doesn't Count as Employment Discrimination

If it isn't handled properly, discrimination in the workplace can not only tarnish a company's reputation, but it can be very costly. Whether you have just one employee or thousands, it's important to understand what it is and how to avoid it to reduce the risk of being faced with employment discrimination cases.

Employees and potential employees should also be aware of what does and doesn't constitute this type of discrimination in order to understand whether they're a victim of it. “Discrimination” means being treated unfairly or differently, but it must be based on something covered under the law such as race, color, age, religion, national origin, sex, or military status. 

It can be hard to know what does and doesn't count as workplace discrimination, but these examples can provide a much better understanding. 

Displaying Racially Offensive Symbols: DOES

If you have any racially offensive symbols in your workplace, this falls under employment discrimination as it creates a hostile work environment. Most people know that racial discrimination at work is illegal.

Obviously, an employer can't refuse to hire someone who is qualified just because of their race, but many don't realize that a hostile work environment is can constitute racial discrimination such as when viewed through the eyes of a reasonable person.

That includes allowing an employee to draw a racist cartoon, hang a confederate flag or display a swastika. Whether they're posted in the person's office, in a public area or sent via email is irrelevant. 

Not Hiring Someone With a Criminal Record: DOESN'T

While it can be challenging for those with a criminal record to find a job of any kind as even employers in industries that are low-risk tend to count them out immediately, there is no federal law that explicitly prohibits employment discrimination based on this. Unfortunately, this kind of discrimination fails to account for the many who have truly learned from their mistakes. 

However, there are some limits as to how much a criminal record can be considered, with some states enacting laws that prohibit an arbitrary ban on applicants with criminal convictions. 

Certain states prohibit public employers from denying jobs to applicants solely based on prior convictions while a few, like New York, prohibit all businesses from denying employment based on criminal records unless there is a direct relationship between the job and the offense, or if hiring the candidate would create an unreasonable risk to safety or property.

Dismissing Older Candidates: DOES

Most hiring managers know that age discrimination is illegal so they would never openly say they're rejecting candidates solely because of their age. More likely other reasons like “overqualified” are given, a term that may be a signal that the employer is using discriminatory practices that are prohibited.

If nearly all workers are in their twenties and thirties, for example, demonstrating a strong preference for younger employees in hiring, that can be evidence of age-based discrimination. 

Prohibiting Visible Tattoos: DOESN'T

A ban or a bias against body art doesn't constitute workplace discrimination. There are no current laws prohibiting employers from discriminating against people with visible tattoos. That means a company can establish dress codes if it believes visible tattoos or other body art like piercings isn't consistent with its branding, mission, values, or image. 

Banning Hijabs and Other Religious Head Coverings: DOES

Discrimination based on religion is prohibited. That not only includes not hiring someone because of their religion or making offensive remarks about it, but banning a person who works face-to-face with customers from wearing a hijab, for example, based on feared or actual customer preferences.

A No Smokers Policy: DOESN'T

“Discrimination” against smokers is allowed as they are not a “protected” class under the law. Employers who provide health insurance as a benefit would incur higher costs which is one of the reasons they may only hire non-smokers.