The job climate is more unstable than it has been in decades. The pandemic triggered widespread layoffs in a number of industries, led by leisure and hospitality, mining and oilfield work, travel, and construction. Cutbacks came in other forms, as well. Jobs duties were combined, workers were issued temporary furloughs, and businesses closed altogether. As the crisis continues to shift, so will the employment picture.
But all of these instances were for clear and definitive reasons. In today’s day and age, discrimination is never a reason for letting a worker go. Layoffs may happen, yes. But losing one’s job should never be an issue of identity, health, or safety. Harassment based on sex, gender, or race should be called out. Advocates should speak up. Everyone deserves a workplace that is fair and just.
Speaking out against a workplace bully or a sexual harasser can be tough. But there are steps employees can take to ensure they stay safe from retaliation. With these tips, workers will be able to better advocate for themselves, and for others.
Know your rights
Most employment is considered “at will.” This means that termination can occur for any reason, or no reason. Except discrimination. But what counts as discrimination? Quite simply, if an employee is part of a protected class, they can’t be fired or laid off because of it. Age, sex, religion, race, and disabilities are examples of protected classes. This doesn’t mean that a protected employee can’t be laid off. It just can’t be for the protected reason.
There are other protections for employees against being laid-off. The Family Medical Leave Act (FMLA) allows workers to take up to 12 unpaid weeks away from work without reprisal. Also, a worker can’t be laid-off for filing workman’s comp. The same is true for employees using their legal rights to report illegal or unethical actions by the business. If this happens, it’s considered illegal retaliation. Employees at large companies must also receive a written notice of a lay off at least 60 days in advance.
Pregnant women are often unfairly discriminated against. The Pregnant Workers Fairness Act provides for reasonable accommodations for pregnant women. These include reducing non-essential tasks and allowing a pregnant worker more breaks. Employers can’t deny employment opportunities because a woman is pregnant. Nor can they require a pregnant worker to take a paid or unpaid leave if they won’t provide these accommodations.
If a worker identifies with any of these protected identities, lay-offs must be verified. Any reason for lay-offs outside of these examples are most likely legal. Unfortunately, the burden of proof often falls to the victim if discrimination has occured. If a worker is a victim of discriminatory lay-offs, it is time for a lawyer.
If you are laid off, you should also know that you have certain rights. You may be entitled to unemployment benefits and the opportunity to continue health coverage temporarily under the Consolidated Omnibus Budget Reconciliation Act (COBRA). This can be an expensive option, so know the details before you sign up.
At the first sign of any discrimination, workers must begin documenting the actions they see. Even if the discrimination is not directed at them, they should take notes and retain them. Employees should look out for one another, though it is often not the case. And, by documenting occurrences, patterns of discrimination can become evident.
For example, if layoffs disproportionally affect one group, this could constitute discrimination. For instance, the EEOC suggests one red flag may be if 30% of a workforce is female and 85% of employees set to be laid off are women. If you see that layoffs are disproportionately affecting your group without regard to job duties, experience, or other criteria, you may want to consult a lawyer.
Document everything you see with regard to your own layoff and what’s happening around you. If you can gather direct evidence of discrimination, through emails or documents, that’s your best evidence. Keep a notebook and make entries of any potentially discriminatory conversations as they happen, noting the date and time they occurred.
Still, direct and irrefutable evidence can be difficult to come by, which is why most discrimination cases are proved using circumstantial evidence. If you were qualified for your position, were a member of a protected group, and were laid off while a lesser-qualified employee — who isn’t protected — was retained, you can put the burden on your employer to prove they haven’t discriminated. They may have to refute your allegations or show another reason why you were laid off.
Discrimination can still be difficult to prove, and companies may try to find ways to hide it. For example, companies may use high salaries as a justification for layoffs — but those with high salaries might all be workers in their 40s and older. Again, this is why documentation and communication amongst peers is crucial.
Don't go in alone
Enlist the help of organizations and individuals who can help. Of course, an attorney versed in workplace discrimination is your first, best option. However, not everyone has the means to secure one. Fortunately, there are other tools and forms of assistance that will allow you to advocate for yourself and others.
Start with the EEOC, which has a mechanism for filing a charge or complaint. You can call the national office directly toll-free, or you can contact one of the EEOC’s field offices. The commission advises you to have the following information on hand:
- The name, address, and phone number of the person being treated unfairly.
- The name, address, and phone number of the employer (target of complaint).
- Brief description of the discriminatory event or events.
- The dates when those events occurred.
There are many organizations that help women, in particular, fight discrimination. They include the Women’s Bureau at the U.S. Department of Labor, the Coalition of Labor Union Women, the National Women’s Law Center — Workplace Justice, and 9to5. Most of these organizations will hear potential discrimination cases for free. All of them will help provide workers with the expertise and support they need to know if they have been discriminated against, and how to fight back.
Have a backup plan
No matter what the outcome ends up being, you may not want to stay at a toxic workplace. But how many times have you heard someone not report some injustice because they need their job?
Being financially stable puts you in the best position to fight for yourself and others. By having a financial safety net, the threat of being laid-off or terminated is lessened. If you have been discriminated against, there’s a chance you won’t be staying at that job regardless of if you are laid-off.
Put yourself in a position of strength by doing things like creating a second source of income, setting aside savings, and building good credit. Having funds tucked away to help with emergency transitions will reduce stress immensely.
You should also always keep your résumé updated. And keep networking: Even if you don’t end up leaving your position, it doesn’t hurt to maintain accounts on social media sites like LinkedIn, so you don’t get caught flat-footed in the case of a layoff.
Discrimination is never ok. And being laid-off because of it is a heinous act that unsavory employers can use to punish those that speak up. Never let these tactics stop smart advocacy for yourself and others. Band together with other protected-class employees, and document any misdeeds you see. Know your worth, and stay safe.