Employees are more informed about their rights than ever before. The internet, increased legal resources, and a stronger cultural emphasis on equality have empowered them to better understand and advocate for their employment rights. And that’s good news, since a well-informed workforce helps build safer, more compliant workplaces.

The not-so-good news? This trend has led to an unintended consequence: an increase in the number of invalid discrimination claims. Some employees, with a heightened sense of awareness, are more likely to interpret standard workplace practices as discriminatory, resulting in misunderstandings and misinterpretations. For us HR pros, this icky dynamic presents both opportunities and challenges. Let’s explore how this trend is shaping your workforce and the steps you can take to address it.

What’s driving the increase in employee awareness?

The shift toward employees being more informed about their rights is driven by a few things:

  • Unlimited access to information: Employees have a wealth of resources at their fingertips, from online articles and social media discussions to legal advice forums. This accessibility allows them to learn about workplace rights, including anti-discrimination laws, sexual harassment policies, and health and safety standards.
  • Increased workplace transparency: Many companies now emphasize transparency in workplace policies, giving employees insight into how decisions are made and helping them understand their rights.
  • Cultural movements: High-profile movements, such as #MeToo and Black Lives Matter, have underscored the importance of addressing workplace discrimination and harassment, emboldening employees to speak up against perceived injustices.

While these factors create a culture of accountability, they can also lead to misunderstandings about what constitutes discrimination under the law.

The uptick in invalid discrimination claims

When employees misinterpret standard management practices as discriminatory, it can lead to an increase in invalid discrimination claims. These claims are often rooted in perceived unfair treatment rather than legally defined discrimination, which requires an adverse action based on a protected characteristic (e.g., race, gender, age, disability). Here are some common situations where misinterpretations arise:

  • Performance feedback: Constructive criticism or performance improvement plans are sometimes seen as discriminatory if an employee feels singled out. However, unless feedback is based on a protected characteristic, it does not meet the legal definition of discrimination.
  • Changes in company policy: Employees may interpret changes in benefits, work-from-home policies, office setups, or even the newest Kombucha flavor as discriminatory if they feel impacted. While these decisions may feel unfair to some, they usually don’t meet legal criteria for discrimination.
  • Workplace conflicts: Routine disagreements or personality clashes can sometimes be misinterpreted as discrimination. Unless there is evidence that one party is treating the other unfairly based on a protected characteristic, these situations fall outside of discrimination law.

Invalid claims of discrimination, while often unintentional, can lead to several challenges within an organization, including strained relationships, unnecessary investigations, and an erosion of trust in HR processes.

How to investigate and respond to “iffy” discrimination claims: a checklist

1. Understand (and clarify) common misconceptions.

Employees often can’t distinguish between legal definitions of terms like harassment, discrimination, and retaliation and their broader, colloquial uses. For those of us who work in HR, it’s helpful to recognize these common misinterpretations:

  • Discrimination is often used to mean any perceived unfairness, when legally it refers to adverse actions against an employee based on a protected characteristic (like race, gender, or disability).
  • Retaliation is frequently misinterpreted as any form of negative response, even when it’s unrelated to a legally protected activity (e.g., an employee lodging a complaint of harassment or discrimination).

Understanding these nuanced misinterpretations can help you prepare responses that are both informative and empathetic. 

2. Investigate.

Next, you’ll want to define the problem more clearly. When interviewing an employee who’s raised a discrimination claim, it’s important to be respectful, empathetic, and non-judgmental. Your goal should be to try to get a clear picture of the alleged incident(s) without influencing or biasing their account. Ask open-ended questions.

Look for patterns:

  • Timeline and specifics: “Could you provide specific dates or approximate times when these incidents occurred?”
  • Witnesses and corroborating information: “Were there any colleagues present who might have witnessed these incidents?”
  • Consistency of treatment: “Have you noticed similar treatment directed toward others with similar characteristics as you (e.g., race, gender, age)?”
  • Performance-related context: “Have you received feedback or had any performance-related discussions with the individuals involved in these incidents?”

Probe for objective details:

  • Protected characteristic: “Can you share what specific characteristics (like race, gender, or age) you feel may have influenced how you were treated?”
  • Behavior of accused party: “Could you describe any specific actions, comments, or behaviors that you believe were discriminatory?”
  • Comparative treatment: “Are you aware of colleagues in similar situations who were treated differently?”

3. Provide training and education.

Provide regular training on anti-discrimination policies, workplace rights, and expectations to help employees understand what discrimination truly entails. Proactively addressing employment rights and defining what constitutes discrimination — in a legal context — is an important component of Harassment Prevention training (like Ethena’s!). 

Training your employees on these topics helps set clear expectations and can reduce vague or inaccurate claims.

4. Communicate constructively.

When employees feel wronged, even if their concerns aren’t grounded in legal issues, it’s important to show empathy and listen without dismissing their concerns. This approach will help build trust and demonstrate a commitment to fairness. A few tips to keep in mind:

  • Acknowledge their feelings: Start by recognizing the employee’s emotions. For example, “I understand why you may feel this way and appreciate you sharing your concerns.”
  • Educate, don’t dismiss: Educate them on the specific meaning of the terms they’re using, but avoid speaking “legalese”. Instead, say something like, “In legal terms, discrimination means something specific, like unfavorable treatment based on factors like race or age. What we’re talking about here might be more related to a performance discussion.”

5. Assess and adapt.

Once you’ve conducted a thorough review, it’s important to close the loop with the employee (and all other involved parties) in a way that educates and reassures them.

  • Share findings respectfully: Explain the findings without appearing dismissive. You might say, “After careful review, we found that the performance review was conducted based on standard criteria.”
  • Educate on workplace policies: Take this opportunity to reiterate the company’s commitment to fairness and clarify any relevant policies. If the claim stemmed from a misunderstanding about a policy, provide additional context to prevent future confusion.

6. Give context on decisions that are made.

HR can help bridge understanding by offering context on how policies are applied and why certain decisions are made. Transparency can often alleviate concerns before they escalate:

  • Explain the “why”: Instead of leaving employees to speculate, give a transparent explanation of decisions. For example, if someone feels targeted in a performance review, explain the objective criteria used to evaluate all employees.
  • Provide the big picture: Share how company policies are designed to support all employees and are consistently applied. For instance, “We update our food options quarterly to accommodate various dietary needs across teams.”

7. Handle repeat claims with sensitivity.

If an employee makes repeated discrimination claims that don’t align with the legal definition, it’s important to navigate the situation carefully — these claims may indicate deeper issues, such as a misunderstanding of workplace policies or a lack of trust.

  • Reaffirm support: Reinforce your company’s commitment to a fair and safe workplace and encourage the employee to continue sharing concerns.
  • Consider additional support: If repeat claims suggest an underlying concern, such as a need for better clarity on performance expectations, offer coaching or training.

The bottom line

As employee awareness of rights continues to grow, remember to balance this empowerment with education in order to create a shared understanding of legal definitions and workplace policies. When employees and HR work together with transparency and respect, misunderstandings can be minimized, allowing the organization to build a fair, inclusive, and productive workplace.