Employment Discrimination: Everything You Need to Know
Employment discrimination or harassment happens when adverse actions are taken against an employee because of race, color, national origin, gender, religion, age.9 min read
Employment discrimination or harassment happens when adverse actions are taken against an applicant or an employee because of the individual's race, skin color, national origin, gender, disability, genetic information, pregnancy, religion, age, or relationship to another person. Groups of people who share some of these characteristics in common make up a protected class.
Discrimination happens when a member of a group (women and people of color, for example) is treated differently than his/her peers. This can happen even if the employee is perceived as being part of a protected class, regardless of whether they actually are. For example, a biracial person whose skin tone is dark may be perceived as African-American.
Companies who hold government contracts must take steps to guarantee that all applicants and employees have a fair shot at opportunities. They must be fair in the way they assign jobs, in how they administer discipline including termination, and how they compensate people. Employers must also avoid any type of retaliation against an employee who has made a claim and ensures that the staffer is not harassed by other employees. These types of discrimination may be blatant and obvious like name calling, or it can be very subtle and hidden. Some forms of employment discrimination are:
- Giving preference to applicants of a certain national origin or gender
- Refusal to hire applicants who observe certain religious practices
- Denying compensation or benefits to pregnant employees
- Demoting, disciplining, firing, or refusing to promote people over a certain age
- Paying similarly qualified men and women different rates of pay for equal work
- Allowing harassment of employees by co-workers for a particular religious belief
- Repeatedly passing up an employee for promotion because of his/her race while promoting those less qualified
- Offering different leave or retirement options to men than women
- Allowing a male employee to rent a company facility for personal use but refusing to rent it to a female
The Equal Employment Opportunity Commission (EEOC) interprets and enforces laws related to employment discrimination, including the Equal Pay Act, the Age Discrimination in Employment Act, Title VII, the Americans with Disabilities Act, parts of the Rehabilitation Act, and other Acts. It was established by Title VII. Section 2000e-5 of Title 42 contains the enforcement provisions, and Title 29 of the Code of Federal Regulations Part 1614 includes the regulations and guidelines.
Federal Employment Statutes Prohibiting Discrimination
The Fifth and 14th Amendments to the United States Constitution are important ones as they relate to employment discrimination. Together they restrict the government's ability to discriminate at the state and federal level.
The Fifth Amendment limits the government's power to take away the "life, liberty, or property" of a citizen without due process. It also gives people equal protection under the law.
The 14th Amendment to the Constitution of the United States keeps the government from violating the rights laid out in the Fifth Amendment. The concept of equal protection applies to employment because it keeps state and local governments from treating applicants or employees, current and former, unequally just because they are part of a group, like women or minorities. It also means that employees have the right to a fair hearing in disciplinary matters and terminations.
The Fifth and 14th Amendments of the Constitution do not directly address private employers, but a large body of state and federal laws do.
Most state constitutions also include protection. In addition, state statutes sometimes give more protection and may apply to employers not covered by federal statutes. Others extend protection to populations not otherwise covered. Sometimes they provide more protection when an employer is a unit of government or if the government has significantly fostered the discriminatory practices.
Equal Pay Act
The Equal Pay Act amended the Fair Labor Standards Act in 1963. It outlaws sex-based compensation discrimination between men and women who work under similar conditions, doing jobs that require "equal skill, effort, and responsibility." It covers the same employers who fall under the federal Fair Labor Standards Act (FLSA), generally any employer dealing in interstate commerce.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against someone because of his/her race, color, religion, sex, and national origin. The Act specifically addresses hiring, firing, paying, and other employment-related terms. It covers all private businesses, state and local governments, labor groups, employment agencies, and educational institutions who have at least 15 employees. It includes specific provisions under the heading of sex discrimination related to pregnancy, childbirth, and related medical conditions.
19th Century Civil Rights Acts
The 19th Century Civil Rights Act was amended and updated in 1993. It gives all people equal rights under the law and outlines the damages available.
Age Discrimination in Employment Act (ADEA)
The Age Discrimination in Employment Act (ADEA) outlaws' discrimination against employees age 40 and older. It covers private employers with 20 or more employees, state and local governments (including school districts), employment agencies, and labor organizations. The ADEA also lays out the rules for administering benefits, pensions, and retirement plans.
Age discrimination is when an adverse employment action is taken against someone because of their age. In employment, apprenticeships, or internships, it is illegal with a few very rare exceptions. Employers cannot state age preferences when advertising available positions, and employees cannot be offered different benefits packages based on age. The only exception to this rule is when it costs the same to offer enhanced benefits to younger workers as it does for lesser benefits for older workers.
The ADEA and Title VII of the Civil Rights Act of 1964 are similar in that they both protect employees between 40 and 65 years of age. In 2007/2008, the United States' highest court ruled on the following three things related to the ADEA.
- ADEA claims must include proof of a discriminatory motive. The plaintiff must prove that the discrimination was the result of a plan that seemed innocent enough but was intentionally unfair.
- The status of limitations for is met when an employee files an "Intake Questionnaire" with the EEOC within the allotted 60 days from a reported ADEA violation.
- Under the ADEA, an employee can sue a federal employer privately for retaliation.
The Rehabilitation Act of 1973 applies the protections of Title VII to employees of the federal government. It was meant to "promote and expand employment opportunities in public and private sectors for handicapped individuals." The Act covers federal government agencies and any employer who receives federal financial aid or has federal contracts over $2,500. This is explained in detail in sections 793 and 794 of the Rehabilitation Act and enforced by the Department of Labor.
Americans with Disabilities Act (ADA) and ADA Amendments Act (ADAAA)
The Americans with Disabilities Act (ADA) and ADA Amendments Act (ADAAA) ban discrimination against otherwise qualified employees or applicants who have a disability. They cannot be treated adversely because of the condition, because they are associated with someone with a disability, or because the employer believes they are disabled, even if they actually aren't. The ADA and ADAAA apply to the same covered employers as Title VII.
Civil Rights Act of 1991 (CRA)
The Civil Rights Act of 1991 (CRA) made changes to §1981 of the U.S. Code. It overturned earlier Supreme Court decisions that have historically made it harder for employees to win lawsuits. In its original form, §1981 set forth the elements required for disparate impact claims and lets a jury give compensatory and punitive damages if the adverse action was intentionally discriminatory.
Uniform Services Employment & Reemployment Rights Act (USERRA)
The Uniform Services Employment & Reemployment Rights Act (USERRA) makes it illegal for employers, whether private or public sector, to deny employment to a current or former service member because of his/her obligations to the military.
Black Lung Act
The Black Lung Act keeps mine operators from taking adverse action against miners diagnosed with pneumoconiosis.
Genetic Information Nondiscrimination Act of 2008
Enforced by the EEOC, the federal Genetic Information Nondiscrimination Act of 2008 (GINA) prevents employers, employment agencies, and labor unions from discriminating because of genetic information that may become known. It also stops insurers from charging more expensive premiums based on such information or from using it in underwriting.
Family and Medical Leave Act
The Family and Medical Leave Act allows employees to be off work unpaid to bond with a new baby or adopted son or daughter or to give care to a sick family member, such as a spouse or parents. The Act makes it illegal to take adverse action against a woman based on the fact that she is pregnant, or against parents in general, and it applies the same protection to employees with other serious health circumstances. In 2008, two more types of FMLA time gave protected leave to the family members of those serving in the military.
Lilly Ledbetter Fair Pay Act of 2009
The Lilly Ledbetter Fair Pay Act clarified when the statute of limitations starts for a claim of discriminatory pay practices through Title VII and the ADEA. It states that an unlawful decision occurs when the discriminatory policy goes into effect but also when the employee is subjected to it, upon hire date, for example. It also establishes that a new offense occurs every time that policy is applied, as in every pay day.
Don't Ask, Don't Tell Repeal Act of 2010
The Don't Ask, Don't Tell Repeal Act of 2010 permits LGBT Americans to serve in the military without discrimination and without having to hide their sexual orientation.
Defense of Marriage Act
In United States v. Windsor, the Supreme Court struck down the Defense of Marriage Act, which attempted to define "marriage" and "spouse" as terms applied only to heterosexual relationships. As a result, gay couples can now access federal benefits.
Despite significant gains in recent years, sexual orientation is still not a protected characteristic. The federal Employment Non-Discrimination Act of 2009 would ban discrimination based on sexual orientation and gender identity, but it has been held up in Congress. That means it is perfectly legal to discriminate against LGBT job seekers and employees in states that don't offer statutory protections. Roughly 20 states do prohibit LGBT discrimination in the workplace, including California, Illinois, New York, and New Jersey.
Employers cannot treat employees differently based on an individual's religion, beliefs, customs, or practices. They must give reasonable accommodations for employees to practice their faith unless it presents an undue hardship. They must also protect workers from harassment based on religion or the lack thereof.
Men and women doing jobs that are similarly situated in skill, qualification, responsibility, and position, must be paid the same. Employers may not lower the pay of one group to equalize the pay.
This type of discrimination is illegal. Employers must treat pregnancy like any other temporary condition or illness.
Hostile Work Environment
A hostile work environment develops when harassment or discrimination keeps an employee or a group of employees from doing the work effectively.
Discrimination vs. Harassment
Harassment is a category of discrimination that includes unwelcome behavior by a co-worker, manager, client, or anyone else in the workplace, based on race, color, religion, sex (including pregnancy), nationality, age (40 or older), disability, or genetic information.
Sexual harassment is a kind of discrimination under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC) defines it as "unwelcome sexual advances" or other actions that create an intimidating or hostile place to work. For example, it's not proper to comment on how a co-worker looks or to tell explicit jokes. If a supervisor asks for sexual acts in exchange for a promotion or job security, then that is "quid pro quo" sexual harassment.
Employment Discrimination Complaints
In the United States, employers cannot treat employees unfairly because of a bias for or against people with a certain set of characteristics known as a protected class. It is illegal to retaliate against someone who has filed a complaint related to an unfair practice or participated in an investigation.
Complaints filed with the EEOC either in person or by mail when an employee feels they have been the victim of unlawful discrimination. This takes place before a Title complaint is filed and must be done within 180 days of the offense in most states; some have a 300-day deadline. This clock starts running from the first time the employee learned of the discriminatory practice.
To handle a claim, the EEOC needs basic details such as contact information for all parties, the date of the alleged violation, and a description of what happened. They may ask for more information later.
One of the things that the agency may recommend is mediation, but it's up to the parties whether they take part. When the investigation is complete, the EEOC must decide whether to represent the employee and sue on his/her behalf. If the EEOC does not feel the claim has enough merit to move ahead in this way, then they issue a "right-to-sue" letter, and the employee can file suit on his/her own. This must be done within 90 days of the letter.
If the employee prevails in court in his/her suit, the court may order a number of employment-related actions, as well as financial awards like back pay, attorney fees, and court costs.
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