Even though federal and state laws prohibit workplace discrimination, it's still a major problem. One reason why discrimination is so pernicious is that it can be hard to prove. Discrimination is based on the employer's intent, and proving what someone is thinking can be very difficult. For example, a manager who never promotes African Americans because he is racially biased may claim that the employees who weren't promoted had poor performance; if that same manager is responsible for completing employee performance evaluations, he can easily manufacture evidence to support his defense.
This doesn't mean employees can't fight back, but you have to know your rights.
Federal and State Laws that Prohibit Discrimination
Federal law prohibits discrimination based on gender, pregnancy, age (for employees who are at least 40), disability, religion, genetic information, race, color, and national origin. Many states also have their own laws prohibiting discrimination, and some cover additional characteristics, such as sexual orientation, marital status, or gender identity.
Evidence of Differential Treatment
To prove discrimination, you must show that you were treated differently from other employees in a similar situation, because of your protected characteristic. The "because" is the key. It doesn't prove anything to show that you are a man and you did not get a raise: There could be many reasons for the employer's decision that have nothing to do with gender.
To prove that the decision was discriminatory, you would have to show that the decision was made because of your gender. Perhaps seven women have received raises in the past year, but no men have seen a pay increase. Maybe you more closely meet the company's criteria for granting raises, such as tenure, performance, or productivity. Or, there may be other evidence that the decision was discriminatory, such as sexist statements by the manager who makes decisions on raises.
Making an Internal Complaint
Most companies have an internal complaint procedure, which employees can use to raise concerns about discrimination. Check your company's employee handbook or other written policies to find out how to proceed. If there's no written complaint policy, go to the HR department and ask how to file a complaint.
Filing an internal complaint is an important first step, because it puts the company on notice of the problem and gives it an opportunity to investigate and correct it. Also, if you later decide to file a lawsuit, raising your concerns with the company first protects your opportunity to ask for punitive damages against the employer later.
Filing an Administrative Charge
If the employer doesn't take effective action, you can file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or a similar state agency. This is a necessary prerequisite to filing a lawsuit. (For more information, see our articles on asserting your rights under the laws that prohibit discrimination.)
Once you get to this point, it's a very good idea to talk to an experienced employment lawyer, who can assess the facts and help you figure out the best way to protect your rights.
