Job Discrimination

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. It 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

According to the Office of Federal Contract Compliance Programs (OFCCP) under Executive Order 11246, employers, including federal contractors and subcontractors, must take steps to guarantee that everyone has equal opportunity.

Workplace discrimination is prohibited under many federal, state, and local laws.

  • The 14th Amendment to the Constitution of the United States prohibits violating an employee's rights to due process and equal protection under the law. 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 5th and 14th Amendments of the Constitution do not directly address private employers, but a large body of state and federal laws do.
  • 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. 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.
  1. 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.
  2. The status of limitations is met when an employee files an "Intake Questionnaire" with the Equal Employment Opportunity Commission (EEOC)  within the allotted 60 days from a reported ADEA violation.
  3. Under the ADEA, an employee can sue a federal employer privately for retaliation.
  • The Rehabilitation Act is meant to "promote and expand employment opportunities in public and private sectors for handicapped people." It 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.
  • Most state constitutions also include protection. In addition, state statutes sometimes provide more protection and may apply to employers not covered by federal statutes. Others extend protection to populations not otherwise covered.
  • 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.
  • 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.
  • The Black Lung Act keeps mine operators from taking adverse action against miners diagnosed with pneumoconiosis.
  • The Family and Medical Leave Act allows employees 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 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.
  • 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.

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 includes the enforcement provisions, and Title 29 of the Code of Federal Regulations Part 1614 has the regulations and guidelines.

Federal Laws Prohibiting Workplace Discrimination

The United States Constitution and most state constitutions address workplace discrimination. Sometimes they provide more protection when an employer is a unit of government or if the government has significantly fostered the discriminatory practices.

  • The Fifth Amendment requires that the federal government may not deprive people of "life, liberty, or property" without due process. Also, it has a guarantee that each person receives equal protection under the law.
  • 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 original. It covers all private businesses, state and local governments, and educational institutions which have at least 15 employees.
  • The Rehabilitation Act of 1973 applies the protections of Title VII to employees of the federal government.
  • 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.
  • The Equal Pay Act (EPA) outlaws sex-based compensation discrimination between men and women who work under similar conditions. It covers the same employers who fall under the federal Fair Labor Standards Act (FLSA).
  • The Pregnancy Discrimination Act (PDA) is a piece of Title VII that outlaws discrimination on the basis of pregnancy, childbirth, or related medical conditions. Companies with 15 or more employees must treat pregnancy like any other short-term disability in terms of medical coverage and leave. The employee must be allowed to work, as long as they can do the job, and employers must hold the employee's position for her for as long as they would for any other employee on medical leave. Up to 12 weeks of unpaid time for childbirth, family illness, or emergencies is provided if the business has more than 50 employees, and the worker has been there full-time for more than a year for at least 1,250 hours. A recent ruling on Pregnancy Discrimination Act allowed employers to let employees go while on maternity leave if the business eliminates the position during downsizing.
  • The Family and Medical Leave Act (FMLA) 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.
  • 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.
  • 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.
  • 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.

Discrimination vs. Harassment

Harassment is a kind 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.

Discrimination Legislation and Issues

Discrimination happens when a member of a group (women or 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.

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.

Sexual Harassment Overview

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 appropriate 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.

Age Discrimination Overview

Age discrimination is when an adverse 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.

Religious Discrimination

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.

Gender Discrimination

Men and women doing jobs that are similar in required skills, qualifications, responsibilities, and position, must be paid the same. Employers may not lower the pay of one group to equalize the pay.

Sexual Orientation Discrimination

The ENDA is the Employment Non-Discrimination Act is pending legislation that would make sexual orientation discrimination illegal in the workplace. It's not currently specifically prohibited though some states and cities have passed their own laws related to homosexual, bisexual, and transsexual people.

Pregnancy Based-Discrimination

Employers must treat pregnancy like any other temporary condition or illness. In 2006, the Equal Employment Opportunity Commission received nearly 5,000 complaints from new moms—a 30 percent increase from the previous decade. According to sociologist Shelley Correll:

  • Mothers are more heavily scrutinized than women without children and men with or without children.
  • That motherhood results in biased evaluations of both competence and commitment to a job
  • That women with children can do the same quality work as those without children, and it will be perceived as less well done

Studies from 2004 and 2010 have shown that mothers start at a lower pay than their co-workers, make less money over time, and receive raises and promotions less often than their colleagues—that is, when they're kept around. Diane King, an employment attorney in Colorado, said, "There's a common misperception out there that women try to use their pregnant condition to bilk extra money from their employers when in reality, it's the opposite," yet only a few come forward to file a complaint.

If you'd like advice on an issue related to employment discrimination, you can post your legal job on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. They come from law schools such as Harvard and Yale and average 14 years of legal experience, including work with companies like Google, Menlo Ventures, and Airbnb.