Workplace discrimination based on factors such as gender, race, sexual orientation, nationality, religion, and disability happen in workplaces across the United States everyday. While a large number of workers face discrimination at work, only a small fraction of them ultimately pursue legal action. This is due to a wide variety of factors, including associated costs, lack of access to legal counsel, and fear of employer retaliation or loss of employment. Unfortunately, even with the myriad of company policies and regulations aiming to create a “safe” work environment, these factors are real aspects workers must consider before filing a claim.
“When aggrieved individuals turn to the law, the adversarial character of litigation imposes considerable personal and financial costs that make plaintiffs feel like they’ve lost regardless of the outcome of the case.” - Rights on Trial
A recent study by the University of Massachusetts Amherst found that people who experience discrimination based on gender, race, and other factors are not being protected by the laws that were designed to shield them. According to the study based on the outcomes of 683,419 discrimination cases filed with the EEOC (U.S. Equal Employment Opportunity Commission):
63% of workers overall who filed an EEOC discrimination complaint ultimately lost their jobs.
67% of workers who filed a disability-related claim ultimately lost their jobs.
40% of workers overall who filed an EEOC discrimination complaint experienced some form of employer retaliation.
46% of workers who filed a gender-related claim experienced some form of employer retaliation.
When it comes to employer retaliation, this can come in many forms - ranging from outright verbal abuse to more subtle forms such as passing over the worker for a promotion. In addition to the risk of losing their jobs or facing retaliation, victims of workplace discrimination shoulder the majority of the burden when it comes to taking legal action. Even when they are fortunate enough to have access to legal counsel, they still face the financial, emotional, and personal costs associated with litigation. The legal standards for proving workplace discrimination are high, with the burden of proving that workplace discrimination occurred falling predominantly on the employee. When it comes to burden of proof, Title VII cases are especially hard to win because the employee must prove that the employer’s reason for termination is false by the following process:
Step 1: The employee says their employer fired them because of their gender.
Step 2: The employer says it fired the employee for another reason (e.g. excessive tardiness).
Step 3: The employee must prove that they were not excessively tardy and that the real reason was gender.
Perhaps the most challenging aspect for victims is that the Title VII jurisprudence nearly requires perfect employees. If an employee has any imperfections in their employment record, the employer can use those imperfections to hide discriminatory motives successfully.
For years, lawmakers have been discussing how to better protect workers with little to no progress. Fortunately, these discussions have increased with the new administration, leading to the Paycheck Fairness Act being passed in the House. The bill aims to close the gender pay gap and strengthen protections for women in the workplace. The act addresses the gap by “closing loopholes” which allowed employers to justify disparities in pay, making it illegal for employers to ask about salary history throughout the hiring process, and increasing pay transparency.
At the end of the day, passage of legislation of this kind is a good first step - but it is not enough. It is imperative that employers face greater consequences for breaking the law through more aggressive enforcement efforts and penalties. Additionally, protections must extend to all marginalized groups by aiming to protect victims of discrimination based on race, disability, gender, nationality, religion, and/or sexual orientation. In addition, the Title VII legal framework does not embrace an intersectional framework at this time, leaving those with multidimensional claims - predominantly Black women - to face the largest share of these structural barriers to recovery. The law must employ specific language and guidelines that ensure plaintiffs that are part of two or more protected classes are able to effectively seek redress in courts across the country.
Get to the point:
While workplace discrimination across the country is prevalent, only a fraction of workers facing workplace discrimination ultimately file a claim. This is due to a wide variety of factors, including the associated costs, lack of access to legal counsel, and the fear of employer retaliation or loss of employment. A recent study found that 63% of workers who filed an EEOC complaint ultimately lost their jobs, showing that the laws currently in place to protect workers are not working. While lawmakers have started making progress in recent months through bills like the Paycheck Fairness Act, these efforts are simply not enough. It is imperative that employers shoulder the burden of proof, and that they face greater consequences for breaking the law through more aggressive enforcement efforts and penalties. In addition to this, legislation must be much more inclusive, focusing not only on gender, but also on race, disability, sexual orientation, and other forms of discrimination. It must also address the increased structural barriers faced by those with multidimensional claims - predominantly Black women - by ensuring the Title VII legal framework embraces an intersectional one.
University of Massachusetts
University of Chicago Press