How to Address Conflict Related to Workplace Discrimination

Discrimination in the workplace is still more common than many people think. A Gallup survey conducted in 2020 found that one in four Black and Hispanic employees felt that they had been discriminated against at work in the previous 12 months. 

“We know when we’re being discriminated against. We know when we’re getting treated differently than others,” said Stephanie Blondell, associate professor of law and practice and associate director of the Straus Institute for Dispute Resolution at Pepperdine University’s Caruso School of Law.

But Blondell also points out that proving that discrimination has occurred can be more complicated. 

“Discrimination is a word we use to describe things that aren’t fair, and it’s also a legal concept,” she explained. “And sometimes, things can be happening in the workplace that aren’t fair, but they’re not the legal definition of discrimination.”

Discrimination refers to “any act or failure to act, impermissibly based in whole or in part on a person’s race, color, religion, sex, national origin, age, physical or mental handicap, and/or reprisal, that adversely affects privileges, benefits, working conditions, results in disparate treatment or had a disparate impact on employees or applicants.” –– according to the Equal Employment Opportunity Terminology Guide, the National Archives and Records Administration

In other words, under Title VII of the Civil Rights Act of 1964 (PDF, 191 KB), it is not only unlawful to discriminate against someone, it is also unlawful to retaliate against a person because they complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Firing, not hiring, or demoting an employee for reasons unrelated to job performance or qualifications fall under the definition of workplace discrimination. And federal law also protects against workplace discrimination on the basis of sexual orientation, gender identity, pregnancy status, or veteran/military service status. 

When a complaint is filed with the Equal Employment Opportunity Commission (EEOC), the agency tasked with investigating workplace discrimination complaints, a formal process begins with the agency notifying the employer of the charge and recommending its mediation program. The agency will also determine if the charge has merit and is timely. If the complaint meets EEOC law enforcement standards and the charge is not sent to mediation or resolved in mediation, the agency will ask the employer for an official response to the charge which initiates an investigation.

The EEOC reviews discrimination complaints that involve violations in these areas:

Unfair treatment. Employment decisions cannot be based on race, color, religion, sex (pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information, which puts them in a protected class.

Harassment. Employees in a protected class should not experience a workplace environment where others’ behavior is intimidating, hostile, or offensive to reasonable people.

Denial of a reasonable workplace change. Employers should provide reasonable accommodations for employees who need them because of religious beliefs or disability status.

Improper questions or disclosure requirements. Family medical history, pregnancy, or relationship status cannot be requested, required, or used to make employment decisions.

Retaliation. Employees or job applicants cannot be punished for complaining about job discrimination or assisting with a proceeding related to accusations of job discrimination.

While the EEOC can enforce federal workplace discrimination laws, employees may have other options. 

“When people do want to sue for discrimination, it may be under a city statute because it’s stronger,” said Blondell. “It depends where you live and what the definitions of discrimination are. They’re not always the same in every arena.”

Workplace discrimination can be very difficult to prove. The EEOC reported that more than 481,000 complaints were filed from 2015 to 2020, which did not include those filed with state or local agencies. Of the 70,804 charges of workplace discrimination resolved in 2020, only 17.4 percent of those were decided in favor of the complainant in the EEOC’s pre-litigation process. 

To prove discrimination, complainants can provide three major types of evidence:

Complainants will typically provide a combination of different types of evidence, and finding direct evidence is often significantly more challenging. Workplace Fairness, a nonprofit employees’ rights organization, outlines how employees can pursue a workplace discrimination case without direct evidence. If an employee can show that they are a member of a protected class that is qualified for their position, that an employer took adverse actions against them, and that they were replaced by someone not in their protected class, then it can legally be presumed that the adverse action was the result of their protected class status. 

Complainants can also bolster their cases with circumstantial evidence. Workplace Fairness encourages employees to consider a number of questions including: 

If an employee feels like they are experiencing discrimination in the workplace, Blondell encourages them to take a step back to fully understand what they can or cannot do. People act and react differently to others’ behavior, and it’s their prerogative whether or not to file a complaint, she explained. 

“I’ve done thousands of employment disputes, and I will tell you that people do not have the same threshold of pain around employment discrimination,” she said. “I do think it’s a personal decision, and I do think knowing what your legal rights are before you report is usually helpful, strategically, for a career.”

If an employee thinks they have experienced workplace discrimination, she suggests taking these steps: 

1. Pause and get more information. Assess how you are being treated unfairly. Research what the time limits are for filing a discrimination charge. This may vary by location and for government and private sector employees. Charges of violations of the Equal Pay Act can go to court directly, and the deadline for filing is two years from the date of the last discriminatory paycheck (three years in cases of willful discrimination).
   
   
2. Seek professional advice. Speak with an attorney or legal services representative who can explain the process, protect you from signing anything that might affect a lawsuit, and identify relevant documents and correspondence. Someone from your Employee Assistance Program or human resources team, therapists and other trusted professionals can help assess your readiness to file a complaint.
   
   
3. Collect records and documents. If you haven’t already started, keep a journal at home with dates, times, and witnesses of suspected discriminatory actions. Details and supporting documents can be used as evidence. “Lawsuits tend not to focus on a feeling, but is there a bad email? Was there a statement made in front of other people?” Blondell said. “Lawsuits tend to focus on what can be entered into evidence and that’s why it’s also important to start keeping your log.”
   
   
4. Report discrimination. File a complaint so that your organization receives proper notice, and if the report moves to the next level, there is no question about notification. Depending on your workplace, you might do that internally or to an external organization.
   
   
5. Be alert to retaliatory actions. If you experience changes in behavior, tasks, or responsibilities that appear to be a penalizing response to your report of discrimination, make notes of the actions and be ready to add them to your complaint. “You want to make sure that your reporting of the activity didn’t create a heightened context of discrimination for you,” Blondell said.

Witnesses of perceived discrimination may also be compelled to report incidents. While looking out for colleagues can help, Blondell cautions that witnesses might want to check in with the person who is being discriminated against or harassed before reporting.

“Sometimes, people can feel disempowered when someone has reported for them,” she said.

Organizations should be proactive about addressing instances of workplace discrimination, Blondell says. Strategies that she encourages include: 

Open-door policies. Managers who make employees feel like they can share bad experiences in the workplace have an opportunity to address problems before they escalate as well as develop an understanding of the relationships among team members.

Frequent management training in discrimination and harassment. Supervisors are better leaders when they learn about unacceptable behavior in the workplace and what to do about it.

Internal dispute resolution programs. Organizations can save time and money by avoiding lengthy court proceedings through in-house processes that address conflict in the workplace.

“I’ve worked with organizations that spend millions of dollars in discrimination complaints and settlements involving employee-employer suits,” Blondell said. “It’s my observation that when they actively pursue risk management through conflict resolution for supervisors, they make a difference in the bottom line. They eliminate lawsuits.” 

This proactive approach can also help in other ways. If an employee’s case does not meet the EEOC threshold for review, the dispute can still cause problems in the work environment, affecting relationships and productivity. 

“There are so many cases that won’t rise to the level that the law recognizes as discrimination, but there can be relief in terms of improving the relationship,” Blondell said. “I’ve had numerous cases where the allegations of discrimination were dropped based on people sharing information.” 

This article is for informational purposes only. If you believe you are experiencing discrimination, please seek advice from a legal professional. 

In addition to consulting with experts, employers and employees can find out more information about discrimination in the workplace below.

Best Practices in EEO Conflict Case Management for Federal Agencies, EEOC: recommendations when conflicts arise in federal agencies.

Chapter 3 Alternative Dispute Resolution for EEO Matters, EEOC: definitions, core principles, procedures, and documentation guidelines.

Equality and Discrimination, International Labour Organization: global perspective on workers’ rights and issues linked to discrimination.

Federal Sector Alternative Dispute Resolution, EEOC: guidance for federal agencies on how to use ADR to resolve discrimination complaints. 

Managing Equal Employment Opportunity, Society for Human Resources Management (SHRM): toolkit with information on federal policy, how to respond to complaints and theories of employment discrimination.

Managing Workplace Conflict, SHRM: tips to help managers and consequences of failing to address workplace conflict.

Prohibited Employment Policies/Practices, EEOC: descriptions of the types of workplace discrimination enforced by the EEOC. 

Retaliation—Making It Personal, EEOC: explanation of retaliation and how it can be influenced by organizational structures.

Small Business Requirements, EEOC: guidelines under federal discrimination laws that apply to small business owners.

Strengthening Accountability for Discrimination: Confronting Fundamental Power Imbalances in the Employment Relationship, Economic Policy Institute: analysis of how government agencies and private employers can benefit from more transparency and reduce workplace discrimination.

Discrimination, Workplace Fairness: hub with information about various forms of discrimination, extending to types involving family responsibilities and hair and grooming.

Discrimination and Harassment in the Workplace, National Conference of State Legislatures (NCSL):  information on current workplace protections in state laws.

Discrimination and Harassment in Employment, Legal Aid at Work: nonprofit organization in California that helps low-income clients while enforcing and strengthening workers’ rights.

Filing a Charge of Discrimination, EEOC: overview on filing a federal complaint with links to more detailed instructions.

Harassment and Other Workplace Problems, Workplace Fairness: hub with information about various forms of harassment, extending to bullying and intentional infliction of emotional distress.

Materials From Diabetes Discrimination Cases, American Diabetes Association: examples of court cases and supporting documents related to reports of discrimination.

Mediation, EEOC: directory of mediation videos, guides, and explainers on the history of the agency program as well as fact sheets for employers, employees, and mediation providers.

Taxation in Employment Cases, Workplace Fairness: Q&A about how money received from employment cases can be affected by taxes.

Valuing Your Case, Workplace Fairness: information to help employees decide if a lawsuit is worth it and to clarify perceptions about workplace discrimination lawsuits.

Women’s Rights in the Workplace, ACLU: articles, mission, and issue statements related to equal pay, pregnancy status, and more.

Created by Pepperdine Law’s online Master of Legal Studies program.