Even small business owners must be aware of instances of employment discrimination in the workplace. No small business, regardless of how small, is exempt from all employment discrimination laws. Consciously and unconsciously, discrimination can occur among owners and employees. As a business owner, you must set the tone in your company and not allow discrimination of any type. Regardless of who in your organization perpetrates the discrimination, you are ultimately responsible, and your business is legally liable for those actions. The first step in combating this challenge is awareness and education.
Employment discrimination is the unfair treatment of an individual or a group of individuals based on their race, color, ethnic or national origin, language, age, religion, sex, sexual orientation, military service, or disability status. Employment discrimination occurs when an employer makes decisions or provides or withholds opportunities based on a protected characteristic. Federal and state laws also protect workers from retaliation for reporting instances of discrimination against themselves or participating in a claim or investigation. Employment discrimination can occur in many forms, including hiring, firing, promotion decisions, pay, or benefits. It may also take the form of harassing or abusive workplace conditions.
Employment discrimination can be overt or covert. Overt discrimination is when the decision is based on a protected characteristic and is publicly communicated. It is an explicit display of unequal treatment of an individual or group because of a protected characteristic they possess. Overt discrimination may include a boss who tells a female employee that women don’t make good managers and when she later applies for a promotion to manager, a less qualified man is selected. Covert discrimination is when there are no apparent or communicated signs of discrimination, but the protected characteristic is a factor in the decision. A well-qualified Army National Guard soldier applies for a promotion and a less qualified candidate with fewer years at the company is given the promotion instead. The supervisor has never publicly said anything about the Soldier’s service but harbors resentment toward the soldier because he must cover the soldier’s shifts on drill weekends when they are at training. He complains about covering the shifts although he doesn’t state the reason. Covert discrimination can be difficult, but not impossible to prove. Employment discrimination is most likely to occur when someone is new to a workplace, either as an applicant or as a newly hired worker.
There are federal and state laws that cover employment discrimination.
In Illinois, the Illinois Human Rights Act (IHRA) prohibits discrimination in employment, real estate transactions including rentals, financial credit, public accommodations, housing, sexual harassment, and sexual harassment in education. The IHRA provides broader protections than federal laws by including additional protected classes. It prohibits discrimination based on race, color, religion, sex, national origin, citizenship status, criminal history, ancestry, age, order of protection status, marital status, physical or mental disability, military status, sexual orientation, gender identity, pregnancy, sexual harassment, and unfavorable discharge from military service. The IHRA also prohibits retaliation against anyone who opposes discriminatory treatment or participates in an investigation of discriminatory treatment. See Illinois Human Rights Act, 775 ILCS 5.
Unlike most of the federal laws that prohibit discrimination, the IHRA applies to “any person employing one or more employees within Illinois during 20 or more calendar weeks within the calendar year.” IHRA, 775 ILCS 5/2-101(B). This is an important difference as even the smallest of small businesses are included in this law.