There is a perception that there are unfair practices in the workplace. It happens when an employee loses a promotion to a supervisor’s close personal friend. A schedule change may also fall hardest on the employee least able to absorb it.
Many of these circumstances may be irritating, but they are not considered illegal. And many people find it difficult to know when these circumstances become prohibited activities.
This sentiment among employees seems more widespread. In fiscal year 2024, the EEOC received 88,531 discrimination charges, an increase of more than 9 percent over fiscal year 2023. The charge volume held roughly steady in fiscal year 2025, according to the agency’s annual reports.
But how can you recognize unlawful discrimination in the workplace? Let’s find out!
Unfair Is Not the Same as Illegal
Under federal laws, discrimination based on any protected characteristic is strictly forbidden. But a neutral policy that disproportionately affects a protected group may still be lawful if it is job-related and necessary to the operation of the business.
Every employee has rights when it comes to any type of employment discrimination. It is unlawful to harass or discriminate against an employee due to any combination of race, color, religion, national origin, age (40 or older), genetic information, or disability. This also includes sex, including sexual orientation and gender identity.
This protection extends to pregnancy-based discrimination and discrimination against workers who are transgender, as well as gay, lesbian, and bisexual workers. Many state governments go beyond the federal protection and list further protections as well.
State law and local practice fill in a lot of the detail, but workers in every state ask the same threshold questions. According to the legal firm website https://www.cohenlevylegal.com/, discrimination and sexual harassment are among the workplace concerns that affect both employees and employers.
An unpleasant workplace is not automatically unlawful, because the conduct generally has to be based on a protected characteristic and be severe or pervasive to count as illegal harassment. A supervisor may treat all employees poorly but is not violating any discrimination law. This law only applies when the supervisor treats employees differently because of a protected characteristic.
Where Discrimination Tends to Show Up
The laws enforced by the EEOC prohibit discrimination in any aspect of employment, including recruiting, job advertisements, pay, benefits, and other terms and conditions of employment. Employers must provide reasonable accommodations for disability, religion, and pregnancy-related limitations unless doing so would cause undue hardship. Harassment on the basis of protected characteristics also falls under EEOC protection.
An employer almost never gets caught saying, “Yes, I didn’t hire that person because of their age,” or, “Yes, I hired a different person with better credentials.” Instead, a series of patterns and decisions are observed. For example, a much better-qualified candidate who is older loses out on a position to someone who is much younger. Two employees can be guilty of violating the same policy, but only one is subject to formal discipline.
An employer may also give different reasons for a demotion at different times or to different people. Meeting notes or even recorded conversations can have discussions concerning such things as age, accent, religious beliefs, and the employee being pregnant. These things are usually insufficient to make a solid case of discrimination on their own, but they provide additional facts and arguments for any discrimination investigator and any court.
Retaliation Is Its Own Violation
Some of the strongest claims involve what happened after a complaint, not the original treatment. What counts as retaliation?
The answer often starts with an employee’s protected activity. This includes reporting harassment, lodging HR grievances about discrimination, opposing discriminatory practices, or requesting accommodations for a disability. This also includes asking the manager or coworkers about salary information to uncover potentially discriminatory wages.
It is unlawful for an employer to retaliate against job applicants or employees for filing a discrimination charge or complaint or for participating as a witness in an investigation, proceeding, or lawsuit, according to the EEOC.
The employer’s retaliation may take several forms like poor performance reviews, job transfers, heightened monitoring, and changing employee work schedules so that personal or family matters are disrupted.
Unlike other discrimination claims, a retaliation claim does not require the employee to first prove the original discrimination, as long as the complaint was made reasonably and in good faith. Often, cases of retaliation depend on timing. One classic example of such a case involves employees who complain about discrimination and then experience a negative performance review after previously receiving positive ones. According to the EEOC, retaliation has long been the most frequently alleged basis in federal-sector discrimination complaints and has accounted for the largest share of discrimination findings in those cases.
The Clock Starts Early
Weak evidence can undermine a claim, but a missed filing deadline can end it before the evidence is even considered. Employees outside the federal government normally have 180 calendar days to file a charge of discrimination with the EEOC. That deadline extends to 300 days when a state or local agency enforces a law prohibiting the same type of discrimination. Age claims also have a 180-day deadline that extends to 300 days but only if a state law (not a local law) outlaws age discrimination.
In employment law, discrimination usually requires a protected characteristic, an adverse employment outcome, and evidence that the employer’s stated reason for that outcome was not the real one. For workers, keeping notes and recording incidents that occurred can be extremely helpful if outside investigation is required. For employers, implementing and strictly enforcing policy helps to avoid such problems altogether.
