Employment Discrimination
Forms of Discrimination Prohibited.
- Discrimination in any form on the basis of race, color, religion, national origin, sex,
age (over forty), or mental or physical handicap is prohibited by both state and federal
laws. Retaliation against employees who oppose in good faith perceived employment
discrimination is also prohibited. Other types of discrimination are also prohibited under
specifically directed statutes. The basic relevant statutes are:
- Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e).
- Title VII prohibits discrimination on the basis of race, color, religion, national
origin and sex (which covers sexual harassment). It also prohibits retaliation against
employees who oppose such discrimination.
- Age Discrimination in Employment Act of 1967 (29 U.S.C. §621).
- The ADEA prohibits discrimination on the basis of age (over the age of 40). It also
prohibits retaliation against employees who oppose such discrimination.
- Americans with Disabilities Act of 1990 (42 U.S.C. §12101).
- The ADA prohibits discrimination on the basis of mental or physical handicap or
perceived mental or physical handicap. It also prohibits retaliation against employees who
oppose such discrimination.
- Rehabilitation Act of 1973 (29
U.S.C. §794).
- This Act prohibits discrimination on the basis of mental or physical handicap or
perceived mental or physical handicap. It also prohibits retaliation against employees who
oppose such discrimination.
- Equal Pay Act (29 U.S.C.
§206(d)).
- The Equal Pay Act prohibits wage discrimination on the basis of sex between equal jobs.
It also prohibits retaliation against employees who oppose such discrimination.
- Civil Rights Act of 1866 (42
U.S.C. §1981)
- This statute provides that all persons have the same rights enjoyed by white male
citizens to make and enforce contracts (including at-will employment contracts). This has
been interpreted to prohibit race discrimination (i.e., protects non-whites) and
discrimination based on alienage.
- Civil Rights Acts of 1871 (42
U.S.C. §1983)
- This statute prohibits any person or entity under color of law from causing the
deprivation of any rights secured by the U.S. Constitution or federal laws.
- Civil Rights Act of 1871 (42
U.S.C. §1985(3))
- This statute prohibits two or more persons or entities from conspiring to depriving any
person of the equal protection of the federal laws.
- Employee Retirement Income Security Act (29 U.S.C. §1001)
- Section 1140 of ERISA prohibits any person from discriminating against a participant or
beneficiary for exercising any right under the provisions of an employee benefit plan or
employee retirement plan or terminating anyone in order to deny them benefits under such
plans..
- National Labor Relations Act (29
U.S.C. §151)
- It is an unfair labor practice to discriminate against any employee or applicant because
of his union activity or affiliation.
- OSHA (29 U.S.C. §651)
- OSHA prohibits employers from discriminating against employees for filing an OSHA
complaint or reporting a workplace hazard.
Different Theories of Liability
- An employment policy or practice, even though it is neutral on its face and does not
have a discriminatory purpose, can still violate the law if the implementation of that
policy or practice has a discriminatory effect.
- A policy or practice which has a discriminatory effect may still be legal if the
employer can prove that it is a job necessity which relates to job performance.
- However, if the employee can prove that a less discriminatory policy or practice is
available which still achieves the business objective, then the policy or practice used by
the employer remains illegal.
- Disparate Treatment
- An employer cannot intentionally treat an applicant or an employee differently because
of his/her protected status.
Specific Topics
- Age Discrimination
- Persons over forty years of age are protected from age discrimination.
- Equal Pay
- An employer cannot discriminate between employees on the basis of sex by paying
different wages for equal jobs requiring equal skill, effort and responsibility and are
performed under similar working conditions.
- Fetal Protection
- Excluding only fertile women from certain jobs cannot be justified on fears of potential
liability. Rather an employer must rely on fully informing women of the risks and not
acting negligently.
- Handicap Discrimination
- An employer cannot discriminate against a qualified handicapped individual or an
individual who is handicapped or whom the employer considers to be handicapped.
- An employer is required to accommodate an individual's handicap by making a
"reasonable accommodation."
- An employer is not required to make any accommodation that would place an "undue
hardship" on the its business.
- National Origin
- English-only rules can be held to discriminate if they are not justified by business
necessity.
- The prohibition against national origin discrimination extends to American citizens
employed outside the U.S. by American companies or by operations controlled by American
companies.
- Pre-employment Inquiries
- Employers may not make any pre-employment inquiries which might reveal one's protected
status, such as sex, race, religion, age or handicap. Also, certain specific inquires have
been prohibited by statute.
- Post-Employment Inquiries
- After an employee has been hired, an employer may, and at times must, keep records on
the race, sex, national origin, handicap, and religion of an employee as long as it is not
for a discriminatory purpose. All such records, however, should be kept separate from
regular personnel records.
- EEO-1: Employers with 100 or more employees must file annually this report before
September 30th of each year.
- Pregnancy
- An employer must handle issues arising from pregnancy, childbirth or complications from
either as it would handle issues arising from any other temporary disability.
- Race Discrimination
- An employer can be liable for discriminating against persons with certain race-based
characteristics even if race itself was not a factor.
- Racial harassment is also illegal. Therefore an employer can be liable for tolerating
racially offensive language or conduct in the workplace.
- Religion
- An employer must make reasonable accommodations to the religious beliefs and practices
of its employees, such as allowing employees time off or altering their schedules to
observe religious holidays or ceremonies.
- Religious organizations and educational institutions operated by religious organizations
may limit their employment to individuals of a particular religion.
- Retaliation
- An employer may not retaliate against any employee who in good faith has opposed an
employment practice he believes to be discriminatory or who has filed charges or
complaints.
- Settlement Agreements
- Non-assistant covenants which prohibit communications with the EEOC are void as against
public policy.
- Settlement agreements of age discrimination claims must provide certain required
provisions in order to be effective.
- Sex Discrimination
- Intentional discrimination on the basis of sex can be permissible where sex is a bona
fide occupational qualification. This exception is interpreted vary narrowly, however.
- Appearance and grooming standards that differ for the sexes are legal as long as they
are equally enforced and are not based on offensive or demeaning sex stereotypes.
- Sexual Harassment
- Sexual harassment is unwelcome sexual advances, requests for sexual favors and other
verbal or physical conduct of a sexual nature where:
- submission to such conduct is made either explicitly or implicitly a term or condition
of an individual's employment;
- submission or rejection of such conduct by an individual is used as the basis for
employment decisions affecting such an individual; or
- such conduct has the purpose or effect of unreasonably interfering with an individual's
work performance or creating an intimidating, hostile or offensive working environment.