Even When Discrimination is Subtle, It's Still Unlawful

Discrimination in the workplace is a hot-button and sensitive topic for employers and employees.

Even the appearance or suggestion of discrimination can trigger legal action. Whether there is ultimately a settlement or a court dismisses the case, lawsuits can be demanding and expensive for employers. As such, it is crucial to avoid discrimination, even when it seems subtle.

For instance, using certain language or practices to discriminate against older employees without explicitly treating them differently because of their age can still be discrimination. This actually happened with elderly university professors. According to a report in the New York Times, the two elderly professors alleged that they were discriminated against because of their age, claiming claim that the discrimination consisted of specific language and actions intended to make the older teachers feel uncomfortable and encourage them to retire earlier than they wanted to.

Among other allegations, the professors alleged they were:

  • Called "dead wood" by the program director
  • Passed over for positions and opportunities given to younger, less-qualified teachers
  • Reassigned from their offices to small work spaces
  • Required to share computers while younger workers had their own desktops
  • Threatened with job reclassification and decreased salaries

They filed a lawsuit against the school and prevailed. Not only did the school reinstate their jobs, it also made changes to its policies and discrimination investigation process. Further, it paid $765,000 in attorneys' fees, back pay and retroactive benefits.

While this case took place in another state, it should remind California employers of a couple points. First, discrimination does not need to be overt or direct to provide the basis for a legal claim. Second, the penalties of discriminating against workers can be far higher than people might expect.

Therefore, it is best to avoid these actions in the first place. Employers can do this by drafting employment policies and handbooks with the help of an experienced employment attorney, properly training managers and taking discrimination complaints seriously.

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