Forms of Discrimination Prohibited.
- Discrimination in any form on the basis of race, color, religion, national origin, citizenship status, sex, age (over forty) or mental or physical handicap/disability 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. s. 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. In Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. __ (2020), the U.S. Supreme Court ruled that the First Amendment's Religion Clauses precluded certain employment discrimination claims from being brought against religious organizations. The Court interpreted this "ministerial exception" broadly to include teachers who performed vital religious duties. The inquiry must focus on what the employee in question actually does and whether the functions are in furtherance of conveying the Church's message and carrying out its mission. State and local laws are likewise constrained by the protections of the First Amendment and therefore must provide similar exceptions. In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania , et al., 591 U.S. __ (2020), the U.S. Supreme Court upheld Trump administration rules providing that employers who have sincerely held beliefs against providing insurance coverage or payments for contraceptive measures to covered females are exempt from legal requirements to provide such coverage. In Bostock v. Clayton County, 590 U.S. __ (2020), the U.S. Supreme Court held that the "sex discrimination" prohibitions in Title VII also prohibits employment discrimination against gay and transgender employees. As a result the EEOC recently issued some guidelines on this topic. In Theidon v. Harvard University, No. 18-1279 (1st Cir. 2020), the First Circuit Court of Appeals affirmed a lower court's dismissal of a sex discrimination and retaliation case brought by a female former professor at Harvard who was denied tenure. The Court held that the plaintiff had failed to meet Title VII's "pretext-plus" standard that required sufficient evidence both of pretext and of Harvard's discriminatory animus.
- Age Discrimination in Employment Act of 1967 (29 U.S.C. s. 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. The U.S. Supreme Court held that federal-sector plaintiffs in age discrimination cases brought under the ADEA need not show that negative considerations of age was a "but for" cause of an adverse employment action, but only that age was a motivating factor. Babb v. Wilkie , 589 U.S. __ (2020).
- Under the Older Workers Benefit Protection Act of 1990, the ADEA was amended (29 U.S.C. s. 626(f)) to provide that for waivers of any ADEA rights or claims to be valid (1) the waiver between the individual and the employer must be written in a manner to be understood by an average individual, (2) the waiver must refer to rights or claims under the ADEA, (3) the waiver does not apply to rights or claims arising after the waiver is executed, (4) the waiver is in exchange for consideration in addition to anything to which the individual is already entitled, (5) the individual is advised to consult with an attorney, (6) the individual is given at least 21 days to consider the agreement or 45 days if the waiver is requested in connection with a termination program offered to a group or class of employees, (7) the agreement provides that for a period of at least 7 days following its execution, the individual may revoke the agreement and the agreement does not become effective until the revocation period has expired, and (8) if the waiver is requested in connection with a termination program, the employer informs the individual in writing of (a) any class, unit or group of individuals covered by such program and all eligibility factors and (b) the job titles and ages of all individuals eligible or selected for the program and the ages of all individuals in the same job classification or organizational unit who are are not eligible or selected for the program.
- Americans with Disabilities Act of 1990 (42 U.S.C. s. 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. The ADA covers employers with 15 or more employees, including state and local governments. In Lopez-Lopez v. The Robinson School, No. 19-1386 (1st Cir. 2020), the First Circuit Court of Appeals held that an employer's driving an employee to a psychiatric facility and obtaining a court order to have her involuntarily evaluated was not discrimination or retaliation under the ADA. Employers may take steps to ensure that employees are mentally fit to perform work so long as there is a legitimate business necessity for doing so. In Burnett v. Ocean Properties, Ltd., et al., Nos. 19-2086, 19-2087, __ F.3d __ (2021), the First Circuit Court of Appeals applied the integrated-enterprise test: (i) 'centralized control over labor relations'; (ii) 'interrelation between operations'; (iii) 'common management'; and (iv) 'common ownership)'" to determine that the two defendant companies were a single employer. The Court noted that under the ADA a reasonable accommodation "may include . . . making existing facilities used by employees readily accessible to and usable by individuals with disabilities." Finally, the Court upheld the jury's award of punitive damages, finding that there was sufficient evidence that the defendants had acted with reckless indifference to plaintiff's rights because they had failed to follow up with him regarding his accommodation request on three occasions.
- Rehabilitation Act of 1973 (29 U.S.C. s. 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. s. 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. If a violation is found to be willful, a Court may order the doubling of the lost wages as additional damages. Such claims are subject to a 2 year statute of limitations, which is extended to 3 years in the case of a willful violation.
- Civil Rights Act of 1866 (42 U.S.C. s. 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. Under a recent U.S. Supreme Court case, Comcast Corp. v. National Association of African American-Owned Media, 589 U.S. __ (2020), a plaintaiff asserting race discrimination claims in the making of a contract bears the burden of proving that racial bias was the "but for" cause of the plaintiff's injury.
- Civil Rights Acts of 1871 (42 U.S.C. s. 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. s. 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.
- Immigration and Nationality Act (8 U.S.C. s. 1324b)
- This statute prohibits discrimination based on citizenship or immigration status, or national origin.
- Employee Retirement Income Security Act (29 U.S.C. s. 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. s. 151)
- It is an unfair labor practice to discriminate against any employee or applicant because of his/her union activity, union affiliation or concerted activity.
- OSHA (29 U.S.C. s. 660(c))
- OSHA prohibits employers from discriminating against employees for filing an OSHA complaint or reporting a workplace hazard.
- Uniform Services Employment and Reemployment Rights Act (USEERA) (38 U.S.C. s. 4311)
- This statute prohibits discrimination in employment on the basis of military service. It also prohibits retaliation against someone who takes steps to oppose such discrimination.
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.
- All Federal contractors and subcontractors with contracts of over $10,000 must take affirmative action in hiring and promoting qualified handicapped individuals.
- All Federal non-construction contractors or subcontractors with 50 or more employees and a contract or subcontract of $50,000 or more must have an affirmative action plan. (Standards are slightly different for construction contractors.)
- All Federal contractors and subcontractors with contracts of over $10,000 must take affirmative action in hiring and promoting qualified handicapped individuals.
- Employers with a federal contract or subcontract of more than $50,000 must have a written affirmative action program prepared within 120 days following receipt of a contract.
- Federal contractors or subcontractors with a contract of $10,000 or more must take affirmative action to employ qualified disabled and Vietnam-era veterans.
- Persons over forty years of age are protected from age discrimination.
Damages in cases of intential discrimination
- Temporal proximity of an employee's protected activity to an employer's adverse action is circumstantial evidence that allows a retaliation claim to get past summary judgment. Mesnick v. General Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992) A discharge occurring soon after an employee engages in protected conduct is indirect proof of a causal connection between the firing and the activity because it is strongly suggestive of retaliation. Oliver v. Digital Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988)
- In an action brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. s. 2000e) or under the Americans with Disabilities Act of 1990 (42 U.S.C. s. 12101) by a complaining party against an employer who engaged in unlawful intentional discrimination (as opposed to disparate impact discrimination), the complaining party may recover compensatory and punitive damages . (42 U.S.C. s. 1981a(a)(1) & (2))
- In cases where a discriminatory practice involves the provision of a reasonable accommodation under the Americans with Disabilities Act of 1990 (42 U.S.C. s. 12101) compensatory or punitive damages may not be awarded where the employer demonstrates good faith efforts, in consulation with the disabled person who has informed the employer that an accommodation is needed, to identify and make a reasonable accommodation that would provide the individual with an equally effective opportunity and would not cause an undue hardship on the employer. (42 U.S.C. s. 1981a(a)(3))
- A complaining party may recover punitive damages if the complaining party demonstrates that the employer engaged in a discriminatory practice with malice or reckless indifference to the federally protected rights of the aggrieved individual. (42 U.S.C. s. 1981a(b)(1))
- The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this statute, shall not exceed, for each complaining party:
- (A) in the case of an employer who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
- (B) in the case of an employer who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000;
- (C) in the case of an employer who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and
- (D) in the case of an employer who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000. (42 U.S.C. s. 1981a(b)(3))
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- An employer must handle issues arising from pregnancy, childbirth or complications from either as it would handle issues arising from any other temporary disability.
- 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.
- 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.
- An employer may not retaliate against any employee who in good faith has opposed an employment practice he/she believes to be discriminatory or who has filed charges or complaints.
- Non-assistant covenants which prohibit communications with the EEOC are void as against public policy.
- Settlement agreements of Federal age discrimination claims under the ADEA must provide certain required provisions in order to be effective, including specific references to the ADEA, the individual must be advised to consult with an attorney, the individual must be given at least 21 days to consider the agreement or 45 days if the waiver is requested in connection with a termination program offered to a group of employees, the agreement must provide that for a period of at least 7 days following its execution the individual make revoke the agreement and the agreement does not become effective until the revocation period has expired, and if the waiver is requested in connection with a termination program, the individual must be informed in writing of (a) any class, unit or group of individuals covered by such program and all eligibility factors and (b) the job titles and ages of all individuals eligible or selected for the program and the ages of all individuals in the same job classification or organizational unit who are are not eligible or selected for the program. (29 U.S.C. s. 626(f)).
- 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 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.
- EEOC guidelines provide that an employer must "take all steps necessary to prevent sexual harassment from occurring."
- Violence Motivated by Gender (34 U.S.C. s. 12361)
- A person who commits a crime of violence motivated by gender is liable to the injured party for the recovery of compensatory damages, punitive damages, injunctive relief and whatever other relief the court deems appropriate.
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