Code words and covert employment discrimination: Legal analysis and consequences for management

Abstract

Each organization is likely to have its own unique organizational culture that can either be helpful or hurtful to its employee recruitment, productivity, and retention. Dysfunctional organizational cultures tend to have an informal means of communication where certain code words are used to covertly discriminate toward minorities and candidates based on their appearance, looks, or other demographics. Based on court cases and lawsuits filed, this article provides a review of certain common code words that can be evidence of discrimination in the workplace. These discriminatory remarks, comments, and/or practices might be linked to a person’s age, disability, gender, religion, skin color, body size, appearance, and other such dimensions of diversity. The authors provide actual legal examples and show how the courts decided each case and why. The authors also supply concise guidelines and suggestions made by diversity experts, judges, and those who work with the Equal Employment Opportunity Commission (EEOC) on legally impermissible and permissible words and phrases. The article offers recommendations for managers and human resources professionals to conduct regular diversity audits of their organization’s culture and overall communication to make sure it represents their mission, vision and value and is free from illegal code words as well as pejorative stereotypical remarks.

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