19 September 2023

Microaggressions and Unlawful Discrimination

An employee tells a colleague that he doesn’t even look gay. Another employee continuously mispronounces a colleague’s name because it’s too hard to say correctly. A female employee is constantly interrupted while speaking at a meeting. Although microaggressions may appear to be harmless or in some cases intended to be a compliment, they often stem from unconscious biases and can lead to negative workplace consequences if not addressed.

So what are microaggressions? Microaggressions are comments or actions that subtly and often unconsciously or unintentionally express a prejudiced attitude toward a member of a marginalized group. Three common types of microaggressions are microassaults, microinsults, and microinvalidations.

When most people think of conduct that is the basis of a discrimination claim, we think of microassaults. A microassault is intentional, overt discrimination. It can be in the form of using a racial slur or displaying a hate symbol, for example. On the other hand, microinsults and microinvalidations are more subtle forms of prejudice. A microinsult is intentional or unintentional speech that demeans another person based on an individual’s protected class. Complimenting someone’s ability to speak English can be a microinsult. Another example of a microinsult is telling someone that they “don’t look or sound gay.” Microinvalidations are intentionally or unintentionally excluding, ignoring, or discrediting a person based on their membership in a culture or a protected class. Telling someone that you “don’t see color” is an example of a microinvalidation.

Historically, very few cases have discussed microaggressions. However, in recent years the term has been making its way into more and more workplace harassment and discrimination claims. Whether or not microaggressions can support a harassment or discrimination claim depends on a number of factors such as how frequently the comments occur, who utters it (co-worker vs. supervisor), and frankly, how bad the comment is.

Employers should know how to identify microaggressions and how to address them before the rise to the level of workplace harassment or discrimination. Join us at our annual Employment Law Seminar for a deeper discussion on how microaggressions can lead to unlawful discrimination and what you can do to address them.


If you have questions, please contact Breanne Gilliam.