One definition of the word “discriminate” is “to distinguish by discerning or exposing differences.” All employers discriminate, probably every day. They not only distinguish employees by discerning or exposing their differences, but use those differences to make employment decisions.
For example, employers discriminate by:
- Giving seasoned employees more challenging assignments,
- Granting the most reliable employees more flexibility in their daily schedules, and
- Paying high performers more than lower performers.
These are all discriminatory acts, but because they are not based on an employee’s membership in a protected class, they do not create the foundation for a claim of illegal discrimination under employment laws. This distinction is important. A common misconception among some employers, and perhaps even more employees, is that any perceived unequal treatment is illegal discrimination.
This is simply untrue. For discrimination to be illegal, an employer’s actions must be based on an employee’s membership in one or more of many protected classes defined by state and federal employment laws.
What are the federal laws prohibiting job discrimination?
- There are many federal laws regarding employment discrimination enforced by the EEOC.
The Equal Employment Opportunity Commission (EEOC) enforces most of the federal laws regarding discrimination in employment, such as:
- Title VII of the Civil Rights Act of 1964 (Title VII). This prohibits employment discrimination based on:
- Race
- Color
- Religion
- Sex
- National origin
- It applies to employers with 15 or more employees.
- The Equal Pay Act of 1963 (EPA). This protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.
- Like the Fair Labor Standards Act, it applies to virtually all employers.
- The Age Discrimination in Employment Act of 1967 (ADEA). This protects individuals who are 40 years of age or older.
- It applies to employers with 20 or more employees.
- Titles I and V of the Americans with Disabilities Act of 1990 (ADA). These prohibit employment discrimination against qualified individuals with disabilities in:
- The private sector, and
- State and local governments.
- These apply to employers with 15 or more employees.
- Sections 501 and 505 of the Rehabilitation Act of 1973. These prohibit discrimination against qualified individuals with disabilities who work in the federal government.
- The Civil Rights Act of 1991. This provides, among other things, monetary damages in cases of intentional employment discrimination.
- It covers the same employers as Title VII.
- The Pregnancy Discrimination Act (PDA), is an amendment to Title VII of the Civil Rights Act. It prohibits employees from discriminating against employees on the basis of pregnancy.
- The Genetic Information Nondiscrimination Act (GINA). This prohibits employers from:
- Obtaining or using genetic information about employees or applicants; or
- Using that information to deny any term, condition, or privilege of employment.
- It applies to employers with 15 or more employees.
- The Pregnant Workers Fairness Act (PWFA). This law requires covered employers to provide reasonable accommodations to an employee’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship.
What is employment discrimination?
- It is illegal to discriminate based on protected categories in any aspect of employment.
It is illegal to discriminate based on protected categories in any aspect of employment, including:
- Hiring and firing;
- Compensation, assignment, or classification of employees;
- Transfer, promotion, layoff, or recall;
- Job advertisements;
- Recruitment;
- Testing;
- Use of company facilities;
- Training and apprenticeship programs;
- Fringe benefits;
- Pay, retirement plans, and disability leave; or
- Other terms and conditions of employment.
Discriminatory practices include, but are not limited to:
- Harassment based on:
- Race,
- Color,
- Religion,
- Sex,
- National origin,
- Pregnancy,
- Disability, or
- Age;
- Retaliation against an individual for:
- Filing a charge of discrimination,
- Participating in an investigation, or
- Opposing discriminatory practices;
- Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain:
- Sex,
- Race,
- Age,
- Religion,
- Ethnic group, or
- Disability; and
- Denying employment opportunities because of marriage to, or association with, an individual of a particular:
- Race,
- Religion,
- National origin; or
- Disability.
- Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
The federal discrimination laws not only protect employees, but also protect non-employees. For example, employers could be held liable for the:
- Harassing acts of an independent contractor against their employees, if the company fails to address the conduct; and
- Actions of their employees against customers.
What is harassment?
- Employers are responsible for acts of harassment, even if they come from outside of the company.
Harassment based on race, color, sex, national origin, religion, age, or disability is a discriminatory practice. Although sexual harassment has received the most attention, many of the same principles apply to other types of harassment, and employers should be equally vigilant in preventing it.
Hostile work environment
Behaviors that create a hostile environment generally involve acts directed at people because of their race, color, national origin, religion, age, or disability. While sexual harassment involves sexual conduct, gender harassment can occur where no sexual conduct is involved.
Hostile environment harassment includes:
- Unwelcome comments or conduct unreasonably interfering with an individual’s work performance; or
- Creating an intimidating, hostile, or offensive work environment.
The harasser can be a supervisor, coworker, or non-employee. It is important to note that employers may not only be responsible for acts of harassment by employees and supervisors, but also for acts of non-employees, such as vendors and customers, where they knew about or should have known about the conduct being challenged.
Anti-harassment training for employees and supervisors
A good training program can go a long way in proving that your company took adequate measures to prevent sexual harassment.
To learn more about anti-harassment training for employees and supervisors, click here.
Disparate treatment/disparate impact
There are two broad types of discrimination:
- Disparate treatment: An intentional practice where members of a protected class are treated differently than other employees.
- Disparate (or adverse) impact: A (usually) unintentional business practice that has the effect of discrimination on members of a protected class.
For example, more men than women are selected as firefighters because the physical requirements tend to screen out a higher percentage of women. This has an adverse impact on women as a group, although this is allowable due to business necessity. However, a hiring practice may be discriminatory if it tends to screen out a particular group and is unrelated to:
- The requirements of the position, or
- Business necessity.
What are protected classes?
- Protected classes are protected from discrimination under federal law.
The term “protected class” is associated with discrimination. In short, discrimination is an adverse action taken, intentionally or unintentionally, where membership in a protected class was a motivating factor.
Employers cannot use a person’s membership in a protected class as a factor when making employment decisions (hiring, promotion, etc.). Classes protected under federal law include:
- Age (over 40)
- Disability
- National origin
- Pregnancy
- Race
- Religion
- Sex (including sexual orientation and gender identity)
- Genetic information (the provisions on genetic discrimination are typically similar to those for disabilities and prohibit medical tests that reveal genetic disorders.)
Note that in addition to these categories, federal contractors are specifically prohibited from discriminating based on an individual’s:
In addition, many states have created discrimination laws that include additional protected classes. Some of the more common classes that states have listed include:
- Arrest or court records,
- Military service,
- Use of a lawful product (like tobacco), and
- Engaging in lawful activity outside of work.
What is sex discrimination?
- On June 15, 2020, the U.S. Supreme Court ruled that sexual orientation and gender identity are covered under the category of sex, which has long been protected under Title VII.
Title VII of the Civil Rights Act, enforced by the Equal Employment Opportunity Commission (EEOC), protects individuals against employment discrimination based on:
- Sex
- Race
- Color
- National origin
- Religion
Title VII applies to:
- Employers with 15 or more employees; and
- Employment agencies, labor organizations, and the federal government.
Title VII prohibits:
- Discrimination against any employees or applicants because of their sex regarding:
- Hiring,
- Termination,
- Promotion,
- Compensation,
- Job training, or
- Any other term, condition, or privilege of employment.
- Employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals based on sex; and
- Intentional discrimination and neutral job policies that:
- Disproportionately exclude individuals based on sex, and
- Are not job related.
When can gender be considered?
Gender can be considered where it is a bona fide requirement. For example, an employer looking to hire models for women’s clothing would not need to consider male applicants.
Some state laws used to prohibit or limit the employment of women in jobs requiring lifting or carrying weights exceeding certain limits, or other factors. Most have since been repealed. Such laws did not take the abilities of individual women into account and, therefore, were found to discriminate on the basis of sex. Where such laws still exist, they cannot be used as a defense to an unlawful employment practice.
It is also unlawful to retaliate against an individual for:
- Opposing employment practices that discriminate based on sex; or
- Filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.
Sexual orientation and gender identity
On June 15, 2020, the U.S. Supreme Court ruled that sexual orientation and gender identity are covered under the characteristic of sex, which has long been protected under Title VII.
Family responsibility discrimination
Some employees have claimed “family responsibility” discrimination, which is effectively a form of sex discrimination. Typically, employees claim that assumptions about gender stereotypes formed the basis for discrimination. For example, if female employees are denied a promotion because of perceived child-care responsibilities, they might claim family responsibility discrimination based on those gender stereotypes.
What is race discrimination?
- Race discrimination is another way employers can violate Title VII.
Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination based on:
- Race
- Color
- National origin
- Sex
- Religion
Title VII applies to:
- Employers with 15 or more employees, including state and local governments; and
- Employment agencies, labor organizations, and the federal government.
Title VII prohibits:
- Discrimination against any employees or applicants because of their race or color regarding:
- Hiring;
- Termination;
- Promotion;
- Compensation;
- Job training; or
- Any other term, condition, or privilege of employment.
- Employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups.
- Intentional discrimination and neutral job policies that:
- Disproportionately exclude minorities, and
- Are not job related.
Equal employment opportunity cannot be denied because of:
- Marriage to or association with an individual of a different race,
- Membership in or association with ethnic-based organizations or groups, or
- Attendance or participation in schools or places of worship generally associated with certain minority groups.
Title VII violations related to race include:
- Race-related characteristics. Title VII prohibits:
- Discrimination based on an immutable characteristic associated with race, even if all members of the race don’t share the same characteristic, such as:
- Skin color,
- Hair texture, or
- Certain facial feature, and
- Discrimination based on a condition that predominantly affects one race, such as:
- A policy excluding individuals with sickle cell anemia, which predominantly occurs in Black people; and
- A “no-beard” policy, which could discriminate against Black men predisposed to pseudofolliculitis barbae (severe shaving bumps).
- The only exception is if the practice or policy is job related and consistent with business necessity.
- Harassment. Harassment based on race and/or color violates Title VII, including:
- Ethnic slurs,
- Racial “joke,”
- Offensive or derogatory comments, or
- Other verbal or physical conduct that:
- Creates an intimidating, hostile, or offensive working environment; or
- Interferes with an individual’s work performance.
- Segregation and classification of employees. Title VII is violated when:
- Employees in a protected group are segregated by physically isolating them from other employees or from customer contact;
- Employers assign employees according to race or color, such as:
- Assigning primarily Black people to predominantly Black-owned establishments or geographic areas; and
- Employers exclude members of one group from particular positions, or group or categorize employees or jobs so that certain jobs are generally held by members of a certain protected group.
- Additionally, employers or employment agencies coding applications and/or resumes to designate an applicant’s race constitutes evidence of discrimination where people of a certain race or color are excluded from employment or from certain positions.
- Pre-employment inquiries. Requesting pre-employment information that discloses or tends to disclose an applicant’s race strongly suggests that race will be used unlawfully as a basis for hiring.
- Therefore, if members of minority groups are excluded from employment, the request would likely constitute evidence of discrimination.
- Retaliation. It is unlawful to retaliate against an individual for:
- Opposing employment practices that discriminate based on race or color; or
- Filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.
- Legal challenges usually involve motivation. Factors that may suggest race was a factor include:
- Racial remarks by the decision maker,
- A poor record of hiring minorities, and
- Unimpressive qualifications of those selected or retained.
- Factors that can be helpful in fighting a charge include:
- A strong record of hiring minorities, and
- Having treated minorities and non-minorities the same in similar circumstances.
What is age discrimination?
- The ADEA protects employees who are 40 years old or older.
The Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful for an employer to discriminate against individuals in any aspect of employment because they are 40 years old or older (unless one of the statutory exceptions applies). Favoring an older individual over a younger individual because of age, however, is not unlawful discrimination, even if the younger individual is at least 40 years old.
The ADEA applies to:
- Employers with 20 or more employees, including state and local governments; and
- Employment agencies, labor organizations, and the federal government.
Motivating factors
The regulations recognize that differentiation based on reasonable factors other than age are not discriminatory. These may include:
- Skill
- Knowledge
- Demonstrated performance
The issue in age cases is almost always one of motivation. Factors that tend to suggest age as a motivating factor include:
- Remarks suggesting age bias by the decision maker,
- A pattern of negative actions against older employees that cannot be explained, and
- Replacement by a substantially younger employee without greater qualifications.
Factors that tend to suggest that age was not a motivating factor include:
- Favorable treatment toward other senior employees,
- Well-documented evidence of other reasons, and
- Replacement by someone who is not substantially younger in a discharge case.
Juries seem inclined to conclude that the reason for discharge was due to age when:
- The employee has many years of service,
- No proper warning or opportunity to correct the problem was given, and
- The employer denying age discrimination has allowed age-based remarks or jokes.
What is religious discrimination?
- Unless it would cause undue hardship, employers are required to provide reasonable accommodation for religious beliefs and practices.
Title VII of the Civil Rights Act prohibits employers from discriminating against individuals because of their religion in any terms and conditions of employment. Title VII applies to employers with 15 or more employees.
In most cases, whether a practice or belief is “religious” is not at issue. Employers may not treat employees or applicants less — or more — favorably because of their religious beliefs or practices. For example, an employer may not:
- Refuse to hire individuals of a certain religion,
- Impose stricter promotion requirements for people of a certain religion, or
- Impose more or different work requirements due to an employee’s religious beliefs or practices.
Employees cannot be forced to participate — or not participate — in a religious activity as a condition of employment.
What is religious accommodation?
In addition to avoiding discrimination, employers must reasonably accommodate employees’ sincerely held religious beliefs or practices unless doing so would impose an undue hardship. A reasonable accommodation is any adjustment to the work environment that will allow employees to practice their religion. Examples might include:
- Flexible scheduling;
- Voluntary job or shift substitutions or swaps;
- Job reassignments and lateral transfers; or
- Modifying workplace practices, policies, and/or procedures.
Generally, requests for religious accommodations can be handled with a change in shift or work hours. If an accommodation is denied, employers must show the accommodation would result in undue hardship or violate a bona fide seniority system. Otherwise, employers have a duty to accommodate the employee.
An accommodation posing undue hardship is one would result in substantial increased costs in relation to the conduct of their particular business. This is a higher threshold than that of a de minimis cost.
Employers must consider relevant factors in a situation, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer.
When assessing an accommodation’s hardship, employers may include the impact on coworkers, but only if it affects the conduct of the business. Employers must look at other criteria.
Further, a hardship is not undue if it is attributable to:
- Employee animosity to a particular religion,
- To religion in general, or
- To the very notion of accommodating religious practice.
Bias or hostility to a religious practice or accommodation is not a defense.
An attempt to accommodate an employee’s religious beliefs might not be successful, but failure to engage in the process, or the outright rejection of the request without any effort to accommodate, may result in a discrimination complaint. For example, declining a request for time off to attend a religious event because other employees would not be allowed off may not be appropriate unless it really would be an undue hardship. Treating everyone the same is not enough because of the positive duty to accommodate.
In some cases, the alleged discrimination isn’t obvious. For example, employees with performance problems may have also requested time off for their religious beliefs. If they are terminated, the courts may need to decide whether the employer had a “mixed motive” in firing the employee. If their religious beliefs were considered, the claim of performance issues may be a false reason or motive (or “pretext”) for discrimination. But if an effort was made to accommodate the need for time off, the employer should face fewer challenges in defending against the charge.
What is national origin discrimination?
- National origin discrimination is prohibited under Title VII of the Civil Rights Act.
Regardless of ancestry, each employee or job applicant is entitled to the same employment opportunities. The Equal Employment Opportunity Commission (EEOC) enforces the federal prohibition against national origin discrimination in employment under Title VII of the Civil Rights Act, which covers employers with 15 or more employees.
Discrimination includes treating someone less favorably because:
- They come from a particular place,
- Their ethnicity or accent,
- They are believed to have a particular ethnic background, or
- They are married to or associated with someone of a particular nationality.
Examples of violations covered under Title VII include:
- Making employment decisions, such as hiring, firing, and promotion, based on national origin;
- Offensive conduct, such as ethnic slurs, that creates a hostile work environment;
- Basing a decision on an employee’s foreign accent unless it materially interferes with job performance;
- Imposing English-fluency requirements where not required for the effective performance of the position; and
- Setting English-only rules, other than when they are needed to promote the safe or efficient operation of the employer’s business.
National origin discrimination is also prohibited under the law that requires employers to complete an I-9 Form.
What is pregnancy discrimination?
The federal Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act and, therefore, applies to employers with 15 or more employees. Discrimination on the basis of pregnancy, childbirth, or related medical conditions is unlawful.
Pregnancy discrimination under Title VII can be based on:
- Current pregnancy,
- Past pregnancy,
- Potential pregnancy,
- Medical condition related to pregnancy or childbirth including breastfeeding/lactation,
- Having or choosing not to have an abortion, and
- Birth control (Contraception).
Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. If an employee is temporarily unable to perform her job due to pregnancy or related conditions, the employer must treat her the same as any other temporarily disabled employee.
If, for example, the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take leave, the employer must also allow an employee who is temporarily disabled due to pregnancy or related conditions to do the same.
Employers may not refuse to hire a pregnant woman because of pregnancy, a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.
Pregnant employees must be permitted to work as long as they are able to perform their jobs. Employers may not force a woman to take leave because of a pregnancy. Employers must hold a job open for a pregnancy-related absence the same length of time jobs are held for employees with other temporary disabilities.
Pregnant Workers Fairness Act (PWFA)
The PWFA protects employees and applicants who have known limitations related to pregnancy, childbirth, or related medical conditions; it applies only to accommodations. Final rules implementing the PWFA became effective June 18, 2024. Employers with 15 or more employees are covered by the PWFA.
Existing laws that the Equal Employment Opportunity Commission (EEOC) enforces, such as the Pregnancy Discrimination Act make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions, but do not require accommodations.
Under the PWFA, limitations may be minor and may be associated with an uncomplicated pregnancy and may require accommodations that are easy to make.
Related medical conditions must relate to pregnancy or childbirth of the specific individual. They can include lactation (including breastfeeding and pumping), miscarriage, stillbirth, having or choosing not to have an abortion, preeclampsia, gestational diabetes, and HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome, sciatica, carpal tunnel syndrome, migraines, dehydration, anxiety, loss of balance, varicose veins, and menstruation, to name only some.
Note: Federal courts have enjoined the EEOC from enforcing the PWFA rules in relation to elective abortions for the state of Texas (state employers only), as well as employers in Mississippi and Louisiana.
Reasonable accommodations are changes to the work environment or the way things are usually done at work. Some examples of accommodating pregnancy, childbirth, or related medical conditions include:
- Permission to sit or drink water;
- Closer parking;
- Flexible hours;
- Appropriately sized uniforms and safety apparel;
- Additional break time to use the bathroom, eat, and rest;
- Leave or time off to recover from childbirth; and
- Being excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
Qualified employees and applicants are entitled to receive accommodations. Employees or applicants can be “qualified” under the PWFA in two ways.
- First, an employee or applicant who can perform the “essential functions” of the job with or without a reasonable accommodation is qualified.
“Essential functions” are the fundamental duties of the job. Many employees or applicants seeking accommodations will meet this part of the definition because they can perform the job or apply for the position with a reasonable accommodation—for example, the cashier who needs a stool, the production worker who needs bathroom breaks, or the retail worker who needs to carry around a bottle of water.
- Second, if an employee cannot perform the essential functions of the job with or without a reasonable accommodation, an employee can be qualified even if they cannot do the essential functions of their job as long as:
- The inability is “temporary;”
- The employee could perform the functions “in the near future;” and
- The inability to perform the essential functions can be reasonably accommodated.
The determination of whether an employee can perform the functions in the near future is made on a case-by-case basis. If the employee is pregnant, it is presumed that the employee could perform the essential function(s) in the near future because they could perform the essential function(s) within generally 40 weeks of its suspension. An accommodation can include the suspension of an essential function.
This means that an employee who is temporarily unable to perform one or more essential functions of their job, and who therefore needs light duty or a change in their work assignments, may be entitled to such a change as a reasonable accommodation. Leave can also be a reasonable accommodation.
Employees must communicate that they have a limitation — a physical or mental condition related to, arising out of, or affected by pregnancy, childbirth, or a related medical condition — and that they need an adjustment or change in their working conditions due to the limitation. Employees don't have to use any particular words or forms.
Once employers know of such a limitation and accommodation need, they should engage in the “interactive process” with the employee or applicant. They should talk to the employee about the known limitation and the adjustment or change needed at work.
Since employees often tell their managers or supervisors about such accommodation needs, managers and supervisors should be trained in how to recognize such requests and how to respond.
Employers must provide the following accommodations without delay or documentation:
- Carrying or keeping water near and drinking, as needed;
- Allowing additional restroom breaks, as needed;
- Allowing sitting for those whose work requires standing and standing for those whose work requires sitting, as needed; and
- Allowing breaks to eat and drink, as needed.
These are a small set of simple, inexpensive, commonly sought accommodations that are widely known to be needed during an uncomplicated pregnancy, and where documentation would not be easily obtained or necessary. These will not pose an undue hardship.
For other accommodation requests, employers may ask for supporting documentation only when reasonable and when the condition or accommodation need is not obvious.
Documentation is not reasonable if:
- The limitation and need for an adjustment or change at work due to the limitation is obvious. For example, an obviously pregnant employee who seeks a bigger uniform because of their pregnancy cannot be required to provide additional information.
- The employer already knows about the limitation and the adjustment or change at work due to the limitation. If, for example, the employee has already provided enough information that they have morning sickness due to pregnancy and need a later start time, the employer cannot demand a new doctor’s note every time the employee uses the accommodation of coming in later.
- The employee is currently pregnant and needs breaks for the bathroom or to eat or drink, needs to carry water with them to drink, or needs to stand if their job requires sitting or to sit if their job requires standing.
- The employee is lactating and needs modifications to pump at work or nurse during work hours.
- The employer would not ask an employee for documentation in that situation normally. If an employer’s policy is that employees only need a note from a health care provider for absences if they are missing three or more days in a row, the employer can’t require someone who needs a reasonable accommodation of one day off because of pregnancy, childbirth, or a related medical condition to provide information from the health care provider.
When employers are allowed to get documentation from a health care provider, they are limited to documentation that:
- Explains the health care provider’s qualifications and why they can provide the necessary information for this patient. A brief statement is sufficient. The provider does not need to be treating the condition at issue, as long are they are familiar enough with the patient’s circumstances to provide appropriate information.
- Under the PWFA, health care professionals include, but are not limited to: doctors, nurses, nurse practitioners, physician assistants, midwives, physical therapists, and licensed mental health professionals. The health care provider may be a telehealth provider.
- Confirms that the employee has a physical or mental condition. Because the PWFA covers a wide range of physical or mental conditions, the provider does not need to include a diagnosis; a simple statement of the employee's physical or mental condition is sufficient. The problem or impairment may be minor, modest, or episodic (like fatigue, vomiting, or swelling, need for rest,); a need to attend health care appointments; or maintaining the patient’s health or the health of their pregnancy (like avoiding extreme heat, lifting restriction, or limiting exposure to chemicals).
- Confirms that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Pregnancy, childbirth, or related medical conditions do not have to be the sole, the original, or a substantial cause of the physical or mental condition.
- Describes the adjustment or change that is needed at work due to the limitation, including the expected duration of the accommodation. For example, no lifting more than 20 pounds for 3 months, the approximate number and frequency of health care appointments, the estimated time off for recovery, additional safety gear, work functions that should be suspended and for how long, or a later start time. If the change is the temporary suspension of a main job duty, it should make clear that the suspension will be temporary and that the employee could perform the job duty after the pregnancy or in the near future (and include an estimate of when that will be).
Employers should avoid using forms like FMLA certification forms or ADA forms to gather documentation, as they tend to ask for more information than needed. Whatever forms are used, employers should be prepared to have health care providers indicate that some entries or entries are not applicable.
Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer.
Employers may not:
- Require an employee to accept an accommodation without a discussion with the employee about the accommodation (the interactive process),
- Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation,
- Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working,
- Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation), or
- Interfere with any individual’s rights under the PWFA.
What is retaliation?
- Retaliation is the most common discrimination charge.
Retaliation is consistently the most common of all discrimination charges, and many charges claiming another type of discrimination also include the assertion that retaliation occurred.
Title VII prohibits retaliation against individuals because they have either:
- Opposed an unlawful employment practice; or
- Made a charge, testified, or assisted with or participated in an investigation, proceeding, or hearing under the statute.
- Retaliation is also unlawful under the Equal Pay Act, the Genetic Information Nondiscrimination Act (GINA), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).
Retaliation provisions provide exceptionally broad protection to individuals who file charges or otherwise aide the Equal Employment Opportunity Commission (EEOC)’s enforcement function. The EEOC’s policy is to expedite the investigation of retaliation charges and seek injunctive relief, since it has a unique interest in:
- Preserving the integrity of its investigative process, and
- Preventing a chilling effect on the willingness of individuals to protest discriminatory conduct.
Employees are protected against retaliation for their opposition to discrimination if they have a reasonable and “good faith” belief that their employer’s conduct is illegal, even if it turns out that they were mistaken about the legality of the conduct.
However, the anti-retaliation provisions will not apply if the way an individual protests perceived discrimination is:
- Unreasonable, or
- If opposition is false and malicious.
In contrast, participation in the EEO process, such as filing a charge, receives absolute protection. Employee protections from retaliation also extend to applicants and employees even when they engaged in protected activity against a former employer.
For example, it would be unlawful for employers to refuse to hire applicants after a background check revealed that they sued a previous employer under EEO laws or participated in a discrimination proceeding in which a manager was charged with sexual harassment.
What is disability discrimination?
- The Americans with Disabilities Act (ADA) prohibits employment discrimination against individuals with disabilities.
The Americans with Disabilities Act (ADA) prohibits, private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.
If your company has at least 15 employees (or had at least 15 in the prior or present year), the ADA applies.
