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National Origin Discrimination
Genetic Information Discrimination
"Sticks and stones may break my bones, but words will never hurt me." Whoever came up with that old saying probably never talked with employment law attorneys and the employees who file lawsuits against their employers based in part on hurtful language at the workplace. The days when people can say whatever they want to without fear of recrimination are gone forever, if they ever really existed at all. Here is another old saying that one never seems to hear in court: "To err is human; to forgive is divine." Employers sometimes err, but should not count on employees being divinely forgiving. Court cases and newspaper articles dealing with employment discrimination are often replete with words that employers end up wishing they had never spoken. This article outlines some of the many things that, once uttered, cannot be unsaid and usually end up being thrown back in an employer's face in court. The various epithets and sayings are organized into the categories of discrimination they implicate, and all are examples of epithets, offhand remarks, or conversational snippets that have appeared in real court cases. One way to think of them is as "never-says", for they are things that an employer that wishes to stay out of court should never say either to or in the presence of an employee.
Racial Discrimination Never-Says Top of Page
EEOC guidance on racial discrimination: https://www.eeoc.gov/racecolor-discrimination
National Origin Never-Says Top of Page
EEOC guidance on national origin discrimination: https://www.eeoc.gov/national-origin-discrimination
Age Discrimination Never-Says Top of Page
EEOC guidance on age discrimination: https://www.eeoc.gov/age-discrimination AARP resources: https://www.aarp.org/work/working-at-50-plus/age-discrimination/
Disability Discrimination Never-Says Top of Page
EEOC guidance on disability discrimination: https://www.eeoc.gov/disability-discrimination
DOL Guide to hiring people with disabilities: https://pueblo.gpo.gov/CAARNG/ODEP/PDF/ODEP003.pdf
EEOC guide for small businesses: https://www.eeoc.gov/laws/guidance/small-employers-and-reasonable-accommodation
Job Accommodation Network: https://askjan.org/
JAN training videos and modules: https://askjan.org/events/eLearning-Resources.cfm
Religious Discrimination Never-Says Top of Page
EEOC guidance on religion-based discrimination: https://www.eeoc.gov/religious-discrimination
Gender Discrimination Never-Says Top of Page
EEOC guidance on gender-based discrimination: https://www.eeoc.gov/sex-based-discrimination
EEOC guidance on sexual harassment: https://www.eeoc.gov/sexual-harassment
EEOC guidance on sexual orientation- and gender identity-based discrimination: https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination
Genetic Information Discrimination Never-Says Top of Page
Issues arising under the Genetic Information Non-discrimination Act of 2009 will be very difficult to separate from issues arising under disability discrimination and medical information privacy laws such as HIPAA. Gossip and its malevolent effects will also contribute to claims and lawsuits under GINA. There have been no published court decisions yet focused on this area of the law, but the following are examples of statements that will likely show up eventually in cases arising under GINA:
EEOC guidance on discrimination based on genetic information: https://www.eeoc.gov/genetic-information-discrimination
In general, try to avoid remarks and comments that focus on things about people that they cannot change about themselves, that tend to put up walls between groups, and that make people feel excluded, i.e., "you're not one of us." When referring to others, use their names, their job positions, or their professions. A successful company that values diversity will, at all levels within the team, promote the kind of interactions that help people feel included and that their contribution really means something.
The foregoing are just some examples of what the EEOC, judges, and juries sometimes consider in order to find that a hostile work environment exists in a company that has been accused of illegal discrimination, or that enough evidence exists to allow a lawsuit to proceed. Sometimes good manners and common sense help avoid remarks like that, while training or fear of lawsuits might wield more influence at times. Whatever it takes, though, employers should be very careful to keep from ever uttering such things, because even though others might seem to smile or nod in agreement, or at least remain quiet, such words hang on the air like the scent of a skunk, and if a discrimination claim or lawsuit is ever filed, it is almost inevitable that the one who said them, as well as the company that employs him or her, will have to eat those words.
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