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:

• Protected veteran status

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 Pregnancy Discrimination Act is an amendment to Title VII 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.

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.