We have all had terrible bosses. Terrible bosses come in all shapes and sizes. Some are condescending. Some are mean. Some can’t give decent instructions. Some are just plain awful. But when, you might ask, does the boss cross the line from treating you in an unjust way and actually discriminates against you. Consider the following scenarios:
Boss 1: You are a 40 year old African-American woman. You work alongside a 25 year old Caucasian man. Your boss sets unreasonable expectations that you and your coworker cannot possibly achieve in one shift. All of the shelves have to be stocked before quitting time, the bathrooms must be cleaned, all the shopping carts must be brought into the store, and the cash drawers must be counted. Despite your best efforts, you all are unable to get everything done. Your boss belittles the two of you and states that he is taking away shift hours because you all are lousy employees. Are you the victim of illegal discrimination?
No. Although your boss has treated you in an unjust manner and you may feel that his expectations were unreasonable and it was wrong to take hours away from you for not being able to get everything done in one day, this is not discriminatory. You have been treated equally (badly) as your 25 year old male coworker.
Boss 2: Same scenario except you are required to clean the bathrooms. Your coworker is not. When you don’t complete all of your assigned tasks you are yelled at and your hours are cut. When your coworker doesn’t complete his tasks, he goes unpunished. Here, you may be the victim of illegal discrimination. Your boss has treated your coworker more fairly than you.
The take home is that it may be wrong to treat employees badly, but it is not illegal so long as employees are treated in an equally unjust fashion. This sort of treatment may cross the line and become illegal discrimination, however, when an employee who fits into one or more protected categories (more on this below) is treated differently than a coworker who is in a different protected category than you.
What protected categories do I fit into?
Race – it is illegal to treat employees of different races differently, i.e., Caucasian, African-America, Asian, Latino, and so on.
National Origin – this is similar to race, but somewhat different. If you are a natural born American citizen but have ancestry from another country, an employer cannot discriminate against you because of your ancestry. For example, an employer cannot discriminate against you because your parents immigrated from China.
Color – it is illegal for an employer to discriminate against an employee because of his or her color. Isn’t this the same as Race, you might ask? Not necessarily. For example, some African-Americans may have lighter or darker skin. It is illegal for an employer, for example to discriminate against an employee because she is “not black enough” or “too black”.
Sex and Pregnancy – both genders must generally be paid equal pay for equal work, both genders must generally be given equal job advancement opportunities, and an employer cannot discriminate against a pregnant employee, even if it believes it is acting her best interest in doing so. Although sexuality itself is not a protected category, discrimination because a man is not “manly enough” or a woman is not “womanly enough” has been held discriminatory. Moreover, an employer cannot make unwanted sexual advances towards employees or make offers that are quid pro quid or tit for tat, i.e., if you date me, you will get a promotion. Moreover, employers have a duty to prevent coworkers from sexually harassing you. If you are being sexually harassed, you should report it to your supervisor and/or human resources.
Religion and Creed – an employer generally cannot discriminate against an employee because of his or her religious preference and must, in certain circumstances provide religious accommodations such as shift preferences to allow employees to practice their faith. An employer may also in certain circumstances, have to accommodate an employee’s dress if it is of religious significance. An employer can also not discriminate between different sects of the same religion, e.g. Catholic v. Protestant, Shi’a v. Sunni, etc.
Disability – an employer cannot discriminate against you because you have a disability. Who has disability, you might ask? Well, we all do (essentially)! A few years ago Congress changed the Americans with Disabilities Act (or “ADA”) so that employers are now required not to focus on whether an employee has a disability but rather what accommodations that employee may need to do his or her job. If you can do the essential tasks of your job with our without assistance, an employer must accommodate you (hire you or continue to employ you). For example, if you have poor circulation in your legs, a grocery store cannot refuse to hire you as a cashier, but rather it would be reasonable for them to provide you with a stool to sit on.
Age – as the population ages, particularly in light of the current economy, older workers sometimes have trouble finding jobs. It is generally, however, illegal to refuse to hire (or to continue to employ) a worker 40 years of age or older because of his or her age. If you continue to have difficulty getting a job and those jobs are going to younger workers with lesser skills than you, you may have been discriminated against and should consult a lawyer.
Genetics – an employer cannot discriminate against you because of your genetics. How would the employer know about your genetics. Well, have you ever told your boss that your mother has high blood pressure. This could put your employer on notice that you could be genetically predisposed to high blood pressure. The employer may not want you working for it because you may raise its healthcare costs. This is, however, illegal. Generally, an employer cannot ask you about your genetic information, and if it has such information, it cannot discriminate against you because of it.
What protected categories do you fall in? Next time your boss is treating you badly, ask yourself is this an injustice or is this discrimination? Does he treat me the same as my other coworkers that are in different protected categories than me? If he does, you may want to speak with a lawyer to learn more about your rights.