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Addressing Microaggressions in the Workplace: Legal Insights and Solutions

by | Feb 12, 2024 | Discrimination, General Issues, Harassment & Assault

microaggressions in the workplace- a boss targeting a distressed employee

Introduction

 

Microaggressions in the workplace are communications, usually brief, that convey indirect, subtle, or unintentional bias, most often directed at historically marginalized groups. These communications impart hostile, derogatory, or otherwise negative messages about a person or group based on their identity. Microaggressions may disparage a person’s race, gender, sexual orientation, heritage, age, or disability status. They may include slights, snubs, insults, putdowns, and invalidations. Microaggressions occur casually and frequently in everyday life, including the workplace.

The difference between microaggressions and overt discrimination is that those who commit microaggressions might not even be aware of them. Microaggressions in the workplace can contribute to a hostile environment and negatively impact an individual’s job performance and opportunities. Even if they do not rise to the level to support a legal claim of discrimination or a hostile environment, microaggressions may be a sign of a toxic workplace culture that an employer should address.

Types and Examples of Microaggressions in the Workplace

Types of microaggressions: Scholars on the subject generally put microaggressions into the following three categories:

  • Verbal – a comment or question that is demeaning or stigmatizing.
  • Behavioral – actions that are demeaning or discriminatory; and
  • Environmental – when a culture or physical place is structured in a way that makes one or more groups invalidated. This type of microaggression is often due to tradition or outdated approaches or environments.

Classifications: In addition, scholars classify microaggressions into three subgroups:

  • Microassaults are targeted slights, insults, or demeaning behavior. They include name-calling, avoidant behavior, and purposeful discriminatory actions. For instance, when someone makes offensive comments that are characterized as “jokes,” clutches or moves a purse or bag when around certain people, or posts offensive signs or images.
  • Microinsults are comments or actions that are subtly rude, insensitive, and/or derogatory. Although they can be unintentional, they have an underlying insulting message. They might also be taken as backhanded compliments. Examples include telling someone that they are not like others in their marginalized group or implying that someone obtained their position based on a diversity program.
  • Microinvalidations occur when someone tries to invalidate, undercut, discredit, or otherwise undermine the experiences of a marginalized group. For example, when a white person tells a person of color that racial discrimination no longer exists.

    Seek Legal Action

    Legal counsel can help you understand your rights, available options, and advise you on gathering the necessary documents and witnesses to support your claim.

    Since 2001, the attorneys from Rothschild & Alwill, APC have dedicated themselves to workers needing legal assistance. Our experienced labor and employment lawyers can advise you on any potential legal claims. You deserve sound judgment, hard work, skilled representation, and to be treated with dignity during every step of the process.

    Email us or call or office in our Central Valley office in Bakersfield at (661-369-8510) or in Santa Barbara at (805-845-1190) to schedule an initial confidential consultation at no charge. Se habla Español.

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    Legal Perspective on Microaggressions

    Both federal and California laws prohibit discrimination and harassment in the workplace based on protected characteristics. Moreover, employers are legally obligated to take reasonable steps to prevent and correct discriminatory and harassing behavior.

    Under the California Fair Employment and Housing Act (FEHA), protected characteristics include age (40 and over), ancestry, color, creed, denial of family and medical care leave, disability (mental and physical) including HIV and AIDS, marital status, medical condition (cancer and genetic characteristics), national origin, race, religion, sex, and sexual orientation.

    While there is no clear consensus among courts nationwide as to whether microaggressions alone are sufficient to prove a discrimination or harassment case, context is important. Accordingly, microaggressions may be used in addition to other evidence to prove such claims.

    Addressing and Preventing Microaggressions

    Although microaggressions can be harder to detect than overt acts, employers should address and work to prevent microaggressions as part of their overall efforts to prevent and correct discriminatory and harassing behavior. Strategies for employers to identify and address microaggressions include:

    • Microaggression training: Microaggressions often occur because of a lack of awareness. Therefore, non-judgmental microaggression training can help create a culture of respect in the workplace. Such training should offer examples and explain that microaggressions can be unintentional. It should also address what workers should do if they experience or witness microaggressions and techniques to minimize their occurrence.
    • Include microaggression in the harassment policy: All employers should establish and distribute a clear policy against workplace harassment that contains provisions on how workers may lodge complaints and how the employer will address such claims. Such policies should not only discuss overt actions but also microaggressions.
    • Providing other avenues for communication: In addition to the procedures contained in their anti-harassment and grievance policies, employers should provide workers with opportunities to report and address microaggressions. Conduct anonymous surveys or ask for feedback to find out what parts of the workplace may feel less than inclusive.

    Reporting and Responding to Microaggressions in the workplace

     

    Responding to microaggressions can be challenging given that some individuals may be defensive because they do not understand how they can be asked to change behaviors or systems to which they are accustomed and that are not consciously meant to be problematic. Therefore, employers must commit to keeping conversations open and respectful.

    Employees who experience or witness microaggressions should carefully consider when and how to respond. When doing so, they should calmly and assertively communicate their concerns and explain the impact of the comment or action at issue. Moreover, they set clear boundaries by explaining that microaggressions are not acceptable behavior. In addition, it is a good idea to keep a record of these microaggressions, including dates, details, and any witnesses. Doing so will help the employee explain the situation to management and/or HR.

    Legal Remedies and Protections

     

    When microaggressions contribute to a hostile work environment or factor into discrimination, and when the employer’s harassment and grievance procedures do not satisfactorily resolve the issue(s), an impacted employee may seek legal remedies. As noted above, California employees have legal protections against discrimination, harassment, and any retaliatory actions taken by employers against employees who report such acts, file discrimination lawsuits, or aid in related investigations.

    Impacted employees may file a complaint with the California Civil Rights Department or the federal Equal Employment Opportunity Commission (EEOC). Note that there are strict time limits for filing claims, which vary depending on what law(s) you choose to bring your claims. It is important to consult with an experienced employment law attorney to understand the specifics of the situation and the applicable laws.

    Conclusion

     

    While microaggressions can be tricky to address, it is important to deal with them because they can significantly and adversely impact the workplace by contributing to a toxic work culture. Over time, this can lead to valuable workers choosing to find other workplaces where they feel included, especially in situations where microaggressions adversely affect work performance and opportunities.

    The experienced employment law lawyers at Rothschild & Alwill, APC can advise you on how to prevent and/or handle a potential discrimination or harassment claim involving microaggressions. Email us or call or office in our Central Valley office in Bakersfield at (661-369-8510) or in Santa Barbara at (805-845-1190) to schedule an initial confidential consultation at no charge. Se habla Español.