Employment discrimination is discrimination that occurs in the workplace or during the hiring/firing process that is based upon an employee’s race, sex, religion, national origin, physical or mental disability, or age.
This guide will not be comprehensive, but is intended to give both employers and employees a general idea of employment discrimination law.
Sources of Employment Discrimination Law
Employment discrimination laws derive from a wide variety of federal and state laws. This guide focuses on federal employment discrimination laws. Below are some of the more important sources of federal employment discrimination laws:
- Civil Rights Acts of 1964: Landmark civil rights legislation which outlawed discrimination on the basis of race.
- Title VII: This portion of the Civil Rights Act expanding discrimination protection to outlaw discrimination based on color, religion, sex, or national origin.
- Equal Pay Act: Requires men and women to be paid equally for equal work.
- Age Discrimination in Employment Act: This legislation prohibits employers from discriminating on the basis of age if the employee is 40 years old or older.
- Rehabilitation Act of 1973: These laws prohibit workplace discrimination on the basis of disability.
Who Enforces Employment Discrimination Laws?
The United States Equal Employment Opportunity Commission (EEOC) enforces employment discrimination laws. If you believe your employer discriminated against you, you would file a claim with the EEOC. It is important to note that you have 180 days to file your claim, otherwise it will be denied (in some cases, the deadline can be extended). If the EEOC decides not to pursue your discrimination claim, you are then free to sue your employer on your own.
Who Is Protected by Employment Discrimination Laws?
As mentioned above, Title VII of the Civil Rights Act mandates that people are protected from workplace discrimination and harassment based upon their race, religion, sex, and national origin. Subsequent legislation has allowed protection for people based upon their age and perceived physical or mental disabilities.
Currently, employees are not afforded basic protection from discrimination based upon their sexual orientation or gender identity. The Employment Non-Discrimination Act would provide protection from workplace harassment and discrimination based upon an employee’s sexual orientation and gender identity. The bill has been introduced in nearly every Congress since 1994, but has yet to pass. President Barack Obama supports the bill’s passage.
Outside of the major characteristics discussed above, employees are also protected from discrimination based upon different attributes and characteristics , such as:
- Genetic information
- Retaliation for filing employment discrimination claims or for opposing discriminatory practices
- Sexual harassment
- Equal pay/compensation
What Type of Companies Are Covered by Employment Discrimination Laws?
Companies are subject to these laws if they have a qualifying number of employees. Typically, if a company has more than 15 employees who have worked at the company for over 20 weeks, it is subject to federal employment discrimination laws. Whether or a company is covered by these laws also depends on the type of organization—i.e., private versus government agency.
Requirements for Employers
If an employer meets the coverage qualifications above, it is required to post notifications in the workplace regarding an employee’s right to be free from discrimination and harassment, as well as the employee’s right to file charges if he or she is the subject of discrimination. The most popular method of meeting this requirement is the "EEOC is the Law" poster, which can be found here.
If your company meets the minimum qualifications, it is advisable to craft guidelines for all employees which discusses workplace discrimination. You may also offer training to prevent harassment and discrimination.
What Are Discriminatory Practices?
Under federal law, it is illegal to discriminate or show disparate treatment in any aspect of employment. Some common areas in which workplace discrimination can occur are:
- Hiring and firing
- Compensation and pay
- Assignment and classification of employees
- Promotions, transfers, or layoffs
- Harassment based on any of the protected classifications (race, sex, religion, etc…)
- Job advertisements
- Workplace training programs
- Fringe benefits
Workplace discrimination and harassments can take on a variety of forms. This list is not exhaustive and you should contact the EEOC or an experienced workplace discrimination attorney if you believe you have been wronged.
Are There Exceptions?
There are exceptions to workplace discrimination laws if hiring choices are made in accordance with specific exemptions.
The most common exemption is the bona fide occupational qualification (BFOQ). An employer can consider an employee’s characteristics that would be considered discriminatory if the employer can demonstrate that the characteristic does not fit within a BFOQ. One common example would be an airline instituting mandatory retirement ages for its pilots to protect from dangerous flight scenarios.
Religious organizations are typically exempt for certain categories of hiring practices because of their beliefs. For example, if their religion mandates only male priests, they would not be subject to lawsuit for refusing to hire a female so long as the hiring decision is based on sincerely held beliefs.
Finally, the military may exclude women from units or positions that routinely engage in combat.
How to Prove Employment Discrimination
There are number of ways to prove employment discrimination, but for the purposes of this guide we will focus on the broad theories of proving workplace discrimination.
- Disparate Treatment. Disparate treatment is the most common employment discrimination claim. Under this theory of proof, the employment must show that he or she was treated differently than a similarly situated employee, and that difference in treatment was based upon one of the protected characteristics. Disparate treatment discrimination is intentional and nature.
- Disparate Impact. The disparate impact theory of proving employment discrimination requires an employee to prove that a workplace policy has produced an adverse impact on members of a protected class when compared to non-members of the class. Because disparate impact is unintentional, it is usually much harder to prove than disparate treatment discrimination.
Resolving Employment Discrimination Accusations
If the EEOC decides to pursue the employee’s claim, it will give the accused employer alternative methods of resolving the dispute without going to court. The EEOC offers mediation, settlement, and conciliation.
If it is determined an employee was wrongfully discriminated against, the goal is to place the employee in the same position he or she would have been in had the discrimination never occurred. The EEOC also permits remedies in the form of punitive, compensated, and liquidated damages.
Should I Contact an Employment Attorney?
You should consult with an employment attorney if you are an employee with a possible employment discrimination case. Your lawyer will help you understand your right and will work to ensure that you receive just compensation. If you are employer, you should consult with an attorney immediately if you are facing legal action from a former employee.