Your Right to Be Free of Discrimination

Your Right to Be Free of Discrimination

* This information sheet is provided as a resource for general education and is not provided for the purpose of giving legal advice of any kind.

Summary:

Federal, Washington State and local laws protect you from discrimination at work. “Discrimination” means treating certain people better or worse than others because of a particular trait. 

It is generally against the law for your employer to discriminate against you because of your:

  • Age 
  • Race/Color
  • Sex, Gender and Pregnancy (see below for more on required pregnancy accomodations, and sexual harassment and assault)
  • Religion/Creed
  • Disability
  • Sexual Orientation
  • National Origin/Ancestry
  • Union Membership or Activity
  • Marital Status
  • Citizenship status (if you have legal documentation to work in the USA)
  • Veteran/Military Status/Honorable Discharge
  • Gender Identity
  • Genetic Information
  • Political Ideology
  • Raising the Bar in 2018!  Criminal Background (WA State)

FAQs: Discrimination

When is it Illegal to Discriminate?

It is illegal to discriminate in any area of employment, including:

  • Job advertisements and applications
  • Recruitment
  • Job referrals
  • Hiring and firing
  • Wages
  • Fringe benefits (for example, daycare or transportation provided by work)
  • Transfer, layoff, promotion, or recall
  • Retirement plans and disability leave
  • Drug and other medical testing
  • Use of company facilities 
  • Training and apprenticeship programs
  • Work tasks you are given 
  • Other terms or conditions of employment

Learn the Basics

3.1 Types Of Discrimination

Race

An employer cannot discriminate or harass you because of race or ethnicity. Ethnic slurs, racial "jokes," insulting comments and/or other verbal or physical actions based on race and/or color may be illegal if they are severe and ongoing and/or are part of a pattern of discriminatory actions.

Also, your employer cannot hire, fire, or promote based on "stereotypes" (an overly simple idea held by one person or group about another). S/he cannot make assumptions about your personality or what you can do based on your race. In addition, employers cannot decide not to hire you because you are married to or associate with someone of a certain race. Your employer also cannot discriminate against you because you go to schools or places of worship associated with a particular race.

Citizenship Status or National Origin/Ancestry

An employer cannot discriminate or harass you because you or your family are from another country; you have a name or accent associated with another country; you participate in customs associated with another country; or you are married to or spend time with people from another country.

A rule that you speak only English at work might be against the law, unless the employer shows that the rule is necessary for business reasons. Your employer must let you speak other languages during non-work time, such as lunch and breaks.

If you are an immigrant with documentation to work legally in the U.S., an employer generally may not discriminate against you for not being a citizen.

Right to prevent Document Abuse: Document abuse is when an employer requires you to present specific documents to prove that you can work, instead of allowing you to choose which documents to show them. As long as the documents you show meet the legal requirements, it’s your choice which ones to use. It is also illegal for your employer to make you show more documents than the I-9 process requires. For example, if you show your Permanent Resident Card, your employer can’t make you also show a birth certificate. For a list of the documents that satisfy I-9 requirements, see the last page on this link: http://www.uscis.gov/files/form/i-9.pdf.

Right against Nationality or Citizenship Discrimination: An employer is discriminating if they demand certain workers prove that they are legally allowed to work while others are not asked for the same proof. For example, if your employer requires workers of Chinese descent to provide documents but does not require this from workers of German descent, this is discrimination, probably because of race and national origin. However this does not protect undocumented workers.

Religion

An employer cannot discriminate or harass you for religious reasons. You cannot be required to participate in religious activities to keep your job, nor can you be banned from participating in religious activities.

Your employer cannot hire, fire, promote, or demote you based on religious stereotypes about you or people you associate with.

Your employer must make "reasonable accommodations” for your religion. They may be required to make changes that will let you do your job and still practice your faith, unless it would make it difficult for your employer to do business.

Sex, Gender and Pregnancy

It is illegal for an employer to discriminate or harass you because of your sex or gender. There are a few different categories of gender discrimination in the workplace.

Discrimination in Hiring, Promotions, and Wages

It is illegal to discriminate on the basis of sex on wages or benefits where men and women do jobs of similar skill, effort, and responsibility for the same employer with similar working conditions. 

Gender discrimination also includes discrimination based on stereotypes about your responsibilities as a mother or father.

Sexual Harassment

There are two types of illegal sexual harassment: hostile work environment and quid pro quo harassment.

A hostile work environment is when it is difficult or unsafe for you to do your job because of your gender.  This includes directing unwelcome sexual words or actions at you. It is illegal harassment if these actions are severe and ongoing and/or are part of a pattern of other discriminatory actions.

Quid pro quo sexual harassment is when a supervisor or other employee above you asks you for sexual favors in return for better treatment at work. This may be harassment, even if you agree to it.

Pregnancy and Pregnancy-Related Conditions

Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions. Employers can’t make choices about hiring, firing, promotion, or demotion based on stereotypes of pregnant women, or an effort to protect pregnant women from the hazards of the job. The only exception is if an employer can demonstrate business necessity. For information on pregnancy leave, please see Chapter 2.3: Pregnancy and Parental Leave.

Sexual Orientation and Gender Identity

In Washington, it is illegal for your employer to discriminate or harass you because of perceived or actual sexual orientation, gender identity, or transgender status. Employers can’t make choices about hiring, firing, promotion, or demotion based on sexual orientation and gender identity.

Age (40+)

If you are over 39 years old, an employer cannot discriminate against you or harass you because of your age.

It is illegal to:

  • Use age to make choices about hiring, firing, promoting, and demoting
  • Give age preferences/limits in job notices and ads. Age limits are only allowed in limited situations
  • Discriminate based on age in apprenticeship programs
  • Give older employees fewer or worse benefits than younger employees.

Disability Discrimination

An employer cannot discriminate or harass you because of a disability or medical condition or a belief that you have a disability or medical condition. Use of a trained guide dog or service animal is also protected under Washington State law.

If you have a disability, the employer has to make reasonable accommodations for you to work so long as you can do the essential parts of your job with these accommodations. This means working out a system that lets you do the job just as other employees do, or coming up with different tasks that you are able to perform. For information on taking leave for disability see Chapter 2: Your Right to Care for Yourself and Family.

Your prospective employer cannot ask you to take a physical or medical test before offering you a job. Once you have been offered a job, your employer can ask you to take a physical or medical test, if all other workers doing similar tasks have to take the same test (you can’t being singled out because of a disability, or if your employer thinks you have a disability) and the test is really necessary for the job. Your employer cannot discriminate against you based on genetic information that suggests you are more likely to get a disease.

Lifestyle Discrimination

There is current debate whether employers can make decisions about hiring, promotions, insurance rates, etc. based on employee lifestyle. For instance, employers have discriminated against people who smoke cigarettes, eat certain foods, or drink alcohol in their free time. It is not clear if this is legal or not. 

The Americans with Disabilities Act or the Washington State Human Rights Commission might protect you from this type of discrimination. Laws against disability discrimination may protect some people who have medical issues such as obesity or high cholesterol from employers who discriminate against them.

Union and Concerted Activity

Under the National Labor Relations Act, it is illegal for your employer to discriminate against you because you are in a union, because you support a union, or because you are joining with your coworkers to improve your working conditions, even if you are not in a union. Please see Chapter 5 for more information.

Criminal Background

Washington’s Fair Chance Act protects job applicants with a criminal record so they may fairly compete for job opportunities for which they are otherwise qualified. It covers job advertising, applications and hiring processes. It covers most employers, with exceptions for unsupervised access to vulnerable persons; law enforcement or criminal justice agencies; financial institutions, or employers who are permitted or required by law to ask about an applicant’s criminal record for employment purposes; or employers seeking non-employee volunteers.See the Attorney General’s information page on the Washington Fair Chance Act (https://www.atg.wa.gov/fair-chance-act). 

Seattle has a Fair Chance Employment Ordinance similar to the state law, making it illegal for most employers in Seattle to advertise jobs that keep out applicants with a criminal history, ask criminal history questions or perform criminal background checks during the initial part of the hiring process. If you have already been hired and your employer performs a background check s/he cannot take actions against you (fire, demote, etc.) because of a criminal background unless s/he allows you to explain or correct the criminal history information, and s/he can prove that there is a good business reason for their action. The law does not apply to jobs with unsupervised access to children under 16, individuals with developmental disabilities or vulnerable adults. For more information, visit the Seattle Office of Labor Standards (http://www.seattle.gov/laborstandards/ordinances/fair-chance-employment).

3.2 What if I have Experienced Discrimination?

Summary

If you think your rights have been violated, keep track of what happened and when—you will need that information later!

Step 1: Report it to your employer. Unless your employer is the one who is harassing you, you must report harassment to your employer and give them a chance to fix the problem before filing a complaint. Many workplaces have an employee assigned to handle these issues, sometimes called an “EEO Officer” or Human Resources staff. If you are a union member, you can report the harassment to your union representative or steward.

Step 2: Report it to a government agency. Any worker who believes that his or her employment rights have been violated may file a discrimination charge. 

If you think you have been illegally discriminated against, contact a government agency as soon as possible. Pay attention to timelines. Under most discrimination laws, you have only 6 months to one year after the act of discrimination to file a claim. 

FAQs

If I Report Discrimination, Can My Employer Fire Me?

It is against the law for an employer to retaliate against you for filing a discrimination charge, participating in an investigation, or opposing discriminatory practices!

Retaliation means punishing employees because they reported (or helped report) a violation to the employer or the government, or cooperated with an investigation. If your employer fires, demotes, fails to promote, or takes other negative action that affects your job, it may be illegal retaliation. It is also illegal for your employer to encourage or allow coworkers to retaliate against you.

Where Do I File A Claim?

You can file a discrimination claim with the local, state or federal agencies described below. Before filing a complaint, you may want to check with each agency to see how quickly they process claims and what help they provide. Not all agencies provide the same solutions, or cover the same laws. Knowing what an agency can offer may help you determine which one is best for your needs. Getting advice from a lawyer about your legal options may also be helpful.

To protect your right to go to court, you should always file a complaint with the federal EEOC or the Washington Human Rights Commission, even if you also file with the city or county.

For discrimination based on union activity or support, file a complaint with the National Labor Relations Board. 

What If I Am A Public Employee?

If you are a public employee, you must first file a complaint with the level of government employing you. For example, if you are a City of Seattle employee, you must file with the Seattle Office for Civil Rights, not the County. Similarly, if you are a federal employee, you must file with the federal EEOC, not with Washington State.

3.4 Spotlight - Sexual Harassment or Assault

Summary

Washington’s Attorney General defines two types of illegal sexual harassment: hostile work environment and quid pro quo harassment.

A hostile work environment is when it is difficult or unsafe for you to do your job because of your gender.  This can include unwelcome, sexually suggestive or gender based comments or jokes; unwelcome and repeated requests for dates; offensive gestures; inappropriate touching; or display of pornographic materials. It is illegal harassment if these actions are severe and ongoing and/or are part of a pattern of other discriminatory actions.

Quid pro quo sexual harassment is when a manager, supervisor or other employee above you asks you for sexual favors in return for employment benefits such as promotion, salary increase, career development opportunities, special projects, or other benefits related to your job. This may be harassment, even if you agree to it.

If you observe another employee being harassed, or experience harassment yourself, you should document the incident(s) including the date, time and names of witnesses, and do one or more of the following: 

  1. Communicate to the harasser or their supervisor that the offensive behavior is unwelcome. 
  2. Immediately report the incident(s) to management or the human resources department, or your union representative.
  3. Report the harassment to these government agencies: 
  • Washington Attorney General’s Office, www.atg.wa.gov/have-civil-rights-complaint  or call 1-800-551-4636 
  • Washington State Human Rights Commission, www.hum.wa.gov/discrimination-complaint 
  • U.S. Equal Employment Opportunity Commission, www.eeoc.gov/employees/charge.cfm

Your employer could be legally liable for the harassment if they fail to: provide employees experiencing harassment with procedures on how to file a complaint; promptly and thoroughly investigate the complaint; and take prompt and effective action to eliminate further sexual harassment in the workplace.

Learn more at: https://www.atg.wa.gov/sexual-harassment-law

 

Sexual Assault is defined by the Rape Abuse & Incest National Network (RAINN) as "sexual contact or behavior that occurs without explicit consent of the victim." It can include rape or attempted rape, fondling or unwanted sexual touching, or forcing a victim to perform sexual acts. Sexual assault does not necessarily involve physical force; perpetrators may use emotional and psychological coercion, or manipulation, to force a victim into non-consensual sex.  In addition to reporting sexual assault to the government agencies listed above, criminal charges can also be filed with the local police. 

Learn more about how to identify and respond to sexual harassment or assault at:  http://www.workingwa.org/sexual-harassment-resources

FAQs: Sexual Harassment

If I am sexually assaulted at work, what are my rights to paid medical care?

Employers are required by OSHA to provide a safe work environment for their employees. Workers’ compensation laws require employers to pay for injuries suffered by an employee on the job. Learn more about workers’ comp in Chapter 4: Your Right to a Safe Workplace.

In addition, Washington’s Crime Victims Compensation Program (CVCP) assists crime victims who suffer bodily injury or severe emotional stress from a crime classified as a gross misdemeanor or felony, and who are providing reasonable cooperation with law enforcement in the investigation and prosecution of the offender. CVCP covers: medical/dental benefits; lost wages; medication coverage; mental health treatment; grief counseling; and funeral expenses. CVCP is a last payor of benefits, you must use your primary insurance first. To learn more about the compensation program, go to https://www.lni.wa.gov/ClaimsIns/CrimeVictims/About/Default.asp

3.5 Raising the Bar in 2018! - Employment Rights for Formerly Incarcerated Individuals / Returning Citizens

Summary

Statewide

Washington’s Fair Chance Act protects job applicants with a criminal record so they may fairly compete for job opportunities for which they are otherwise qualified. It covers job advertising, applications and hiring processes. It covers most employers, with exceptions for unsupervised access to vulnerable persons; law enforcement or criminal justice agencies; financial institutions, or employers who are permitted or required by law to ask about an applicant’s criminal record for employment purposes; or employers seeking non-employee volunteers.See the Washington Attorney General’s information page on the Washington Fair Chance Act (https://www.atg.wa.gov/fair-chance-act). 

Seattle

Seattle has a Fair Chance Employment Ordinance similar to the state law, making it illegal for most employers in Seattle to advertise jobs that keep out applicants with a criminal history, ask criminal history questions or perform criminal background checks during the initial part of the hiring process. If you have already been hired and your employer performs a background check s/he cannot take action against you (fire, demote, etc.) because of a criminal background unless s/he allows you to explain or correct the criminal history information, and s/he can prove that there is a good business reason for their action. The law does not apply to jobs with unsupervised access to children under 16, individuals with developmental disabilities or vulnerable adults. For more information, visit the  Seattle Office of Labor Standards (http://www.seattle.gov/laborstandards/ordinances/fair-chance-employment).

3.6 Raising the Bar! - Civil Rights Protections for Pregnant Employees

In 2017, the Washington legislature strengthened civil rights protections for pregnant employees needing accommodations at work.

These protections apply to an employee’s pregnancy-related health conditions during pregnancy and after birth, such as the need to breastfeed or express milk. If a pregnant employee works for an employer with 15 employees or more, she has the right to the following accommodations:

  1. Providing frequent, longer, or flexible restroom breaks;
  2. Modifying a no food or drink policy;
  3. Providing seating or allowing the employee to sit more frequently; and
  4. Refraining from lifting more than 17 pounds.

Employers may not ask for written certification from a healthcare professional for the accommodations in 1–4 above.

In addition, a pregnant employee may have rights to other workplace accommodation(s), as long as there is no significant difficulty or expense to the employer. 

To learn more about pregnant employees’ rights, or to file a complaint, go to the Attorney General’s Civil Rights Division website:   https://www.atg.wa.gov/pregnancy-accommodations

3.7 Raising the Bar! - Gender and Pay Equity Discrimination in Employment

In 2018 and 2019, the Legislature created new protections for job applicants and employees. Employers cannot request an applicant’s wage or salary history, except under certain circumstances, and current employees who are offered an internal transfer, a new position or a promotion must now be shown the new job's wage scale or salary range if they request it. Those changes took effect July 28.

Under the revised law, current employees who are offered an internal transfer, a new position or a promotion must now be shown the new job's wage scale or salary range if they request it.

If no wage scale or salary range exists, the employer must show the employee "the minimum wage or salary expectation" that was set before the job was posted or a transfer or promotion was offered.

Employers must also show job applicants the minimum wage or salary of the position they are applying for if they request it after being offered the position.

The ban on requesting salary history applies to all Washington employers, regardless of size. The requirement to disclose salary information to certain applicants and employees applies only to Washington employers with 15 or more employees.

L&I is tasked with enforcing the law and can accept complaints from employees and job applicants. To file a complaint, or for more information, go to www.Lni.wa.gov/EqualPay. For additional information, contact L&I’s Employment Standards Program at 1-866-219-7321.

Special Cases

The laws covering Your Right to be Free of Discrimination vary depending on the type of employer you work for and other factors. See the pull-down sections above for more details and Chapter 3 in the Full Manual.

Am I an employee?

Laws affecting Your Right to be Free of Discrimination also depend on your employment status. See Chapter 8 Am I an Employee?

Who Can Help?

If you work in the City of Seattle, contact Seattle’s Office of Civil Rights (https://www.seattle.gov/civilrights/), the Fair Work Center (https://www.fairworkcenter.org/get-help/). Outside Seattle, contact the WA Human Rights Commission (https://www.hum.wa.gov/) or the Equal Employment Opportunity Commission (EEOC) https://www.eeoc.gov/

Did You Know?

Q: Can an employer ask about a person’s sexual orientation on an application or during a job interview?

A: No, employers are prohibited from asking about a person’s sexual orientation or any other protected class status during the hiring process. Employers should also refrain from asking about spouses or partners during the hiring process.