Under the federal employment law of the United States, most private employers are prohibited from discriminating against or showing disparate treatment toward their employees based on race, color, religion, sex, disability, age, or national origin. Only these classifications are covered. State laws sometimes protect more classes, such as sexual orientation.
The federal laws only apply to those who employ more than 15 workers. Also, the law is only applicable to discrimination based on the above classes. The law does not apply to classes often covered by state laws, such as marital status, and sexual orientation.
What is Unintentional Discrimination?
Under federal discrimination law, there are two different types of discrimination: disparate treatment and disparate impact. Disparate treatment is what most people believe discrimination is: treating employees differently based on race, color, religion, sex, disability, age or national origin.
Disparate impact, also known as unintentional discrimination, is discrimination based on policies. These policies might appear neutral, but they actually favor or disfavor one class of employees over others. For instance, a firefighter department implements a written test to decide who should be promoted. Although a written test appears neutral, certain racial minorities are disfavored because they cannot purchase study materials and the test itself is not actually relevant to firefighting.
Both disparate treatment and disparate impact are illegal under federal discrimination law. Discrimination law seeks to eliminate both intentional and unintentional discrimination.
How Does an Employee Bring a Lawsuit Under Federal Law?
In order for an employee to bring a discrimination case under federal law, the employee must first obtain a “right to sue” letter from the Equal Employment Opportunity Commission (EEOC). Employees seeking to sue under state law should check if their state has a state agency counterpart to the EEOC.
Once the employee has the right to sue, the employee must prove that the facts establish a circumstance which could be interpreted as discriminatory. The employee must show that the employee belongs to a protected class, the employee was minimally qualified for the job, and that the employee suffered an adverse action because of the discrimination.
An “adverse action” is an action which creates a hardship for the employee. The most common adverse actions are termination of employment, pay cuts, being rejected from a position, or being involuntary transferred to another department.
If the alleged discrimination was unintentional discrimination, the employee must be able to point out specific acts of discrimination and link those acts to the adverse action suffered by the employee.
The employer will then have a chance to respond to the allegations. The burden is on the employee to disprove the employer’s responses to the alleged discrimination.
What is a Reasonable Accommodation?
Employers are required to make reasonable accommodations for their employees’ disabilities or religious observances. However, if the employee requires accommodations which would put a severe burden on the employer, he or she does not have to make the accommodation.
What is the Bona Fide Occupational Qualification Defense?'
The law does not always prevent employers from using the above classifications when hiring employees. If a person is unable to do the job because of their protected class, the employer may use that fact as a reason not to hire them. This is known as the Bona Fide Occupational Qualification Defense, or BFOQ.
For example, if an employer is seeking people to model men’s clothing, they are probably not going to hire any women for the job. This is because women, by virtue of their sex, are unable to do this job. This defense almost always applies in the area of sex discrimination, but it also comes up with religion. It does not apply to race, color, or national origin.
Do I Need a Lawyer?
Bringing a discrimination case can be very complicated. There are many regulations that must be followed and in addition to federal laws there are likely state laws that apply as well. An employment lawyer can help you with the procedures and help you investigate your case.