Workplace Discrimination Remains Pervasive
At every stage of employment, from hiring to promotions to firings, workplace discrimination on the basis of race, gender, and other factors is commonplace. In 2024 alone, the EEOC recovered nearly $700 million for over 21,000 workers with discrimination claims, a figure that does not include recoveries in private lawsuits, which constitute over 90% of antidiscrimination claims nationwide. The National Institute for Workers’ Rights has recently published a policy brief summarizing key research findings on how discrimination persists in American workplaces.
Antidiscrimination Law Doesn’t Do Enough to Stop It
Harassment Defined Too Narrowly. Familiar legal definitions of workplace harassment define it in terms of how “severe or pervasive” the employer’s conduct is, and in terms of “abusive or hostile work environments.” This is too high a bar. Well-resourced corporate defendants can defeat workers in court even when those workers experience very damaging harassment.
Damages Not Enough to Deter Employers. Even when workers succeed on discrimination claims, the law often denies enough compensation to either make them whole again, or to deter their employers from repeat violations. Corporations have engaged in a sustained, multi-decade, wildly successful campaign to avoid compensating victims of discrimination, through the legal mechanism of damage caps, at the federal and state levels. It’s time to raise or eliminate these anti-worker caps.
Working Parents Vulnerable. We also need to enlarge our understanding of what can constitute and cause discrimination. The United States is one of seven United Nations member countries that does not guarantee paid family leave to new parents. Lack of paid leave discriminates against working parents, disproportionately against mothers, who experience preventable difficulties juggling career advancement and family care responsibilities.
What States Can Do
Strengthening Antidiscrimination Law
Improve Standards and Definitions
Rather than the burdensome and outdated “severe or pervasive” hostile work environment standard for proving harassment, harassment should be defined as “unwelcome conduct directed at an individual or group of individuals in, or perceived to be in, a protected class, which conduct is subjectively offensive to the individual alleging harassment and objectively offensive to members of the same protected class as the individual alleging harassment,” as in Colorado.
Colorado SB23-172
Motivating Factor Standard
With respect to intentional discrimination claims, the “but-for” cause standard should be replaced by a motivating factor standard, as in New York.
New York Senate Bill S4467B
Add a Cause of Action for Failure to Prevent Discrimination
California provides for a standalone legal claim against employers where they “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” States should include this in their antidiscrimination law, as this has the potential to meaningfully expand the scope of discovery available to plaintiffs.
California Government Code § 12940
Add Punitive Damages
Violations of antidiscrimination law should be sanctioned not just with compensatory damages, but with punitive damages to motivate employers to change their discriminatory behavior, as is the case with New York’s state human rights law.
New York State Executive Law Chapter 18, Article 15, § 297
Making Work Equitable to Prevent Discrimination
Paid Family and Medical Leave
The benefits of paid family leave are many, and include improving children’s health outcomes as well as boosting the economy overall by helping skilled workers remain in jobs for which they are good matches. Thirteen states and the District of Columbia have adopted such policies, like Oregon’s best-in-the-country paid family leave law, guaranteeing workers 12 weeks of paid family leave, at the highest relative pay levels of any such state law.
Paid Family Leave in Oregon
Salary Transparency
Thirteen states and the District of Columbia have also passed pay transparency laws, the benefits of which include reducing gender pay gaps and reducing online recruiting costs. Employers should be required to post salary information in job notices, and to disclose such information to current employees on request. In addition to base pay, such required disclosures should include benefits, bonuses, and commissions, as does Colorado’s Equal Pay for Equal Work Act.
Colorado Equal Pay for Equal Work Act
Help Build the Clearinghouse
If you have proposals for pro-worker policies—whether already implemented in a particular state or ones you’d like to see established—we encourage you to share your suggestions. We welcome additions to our clearinghouse that align with one of our five key policy areas. Please send such submissions to .
