To “discriminate” against someone means to treat that person differently, or less favorably, for some reason. Discrimination in the workplace means workers are treated differently (poorly) because of their race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information.
Discrimination can happen to just about anyone, and impacts a wide range of people in the workforce.
Title VII of the Civil Rights Act is the original anti-discrimination law. It precludes discrimination on the basis of race, color, religion, sex (including sexual orientation and gender identity), and national origin. Other federal laws preclude discrimination on the basis of age, disability, genetic information, pregnancy, and veteran status. The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces laws prohibiting discrimination (which includes retaliation and harassment) in the workplace. In addition, many states have adopted similar laws to protect employees. Often, the states prohibit discrimination on the basis of factors not covered by federal law.
The EEOC enforces the federal laws, and maintains agreements with state civil rights agencies. A discrimination suit filed with EEOC will be cross-filed with the applicable state agency. Similarly, a suit filed with a state agency will often be cross-filed with the EEOC. For example, an employee may contact the EEOC to file a complaint of sexual orientation discrimination. Since the EEOC does not include this protected class, the employee would be referred to the state agency.
Most states have adopted some version of the federal laws, and the protections for employees are similar. Many states also protect groups not included in the federal law. These may include discrimination based on sexual orientation, military discharge status, political beliefs, and criminal records. In addition, the state protections are sometimes expanded. For example, the federal age discrimination protections apply to persons age 40 or older. However, some states protect against age discrimination starting at age 18.
Federal and state laws do not generally require preferential treatment based on the number or percentage of people in any community, state, or other area. They are anti-discrimination laws, not affirmative action requirements.
Discriminatory practices. It is illegal to discriminate on the basis of a protected characteristic (race, age, religion, etc.) in any aspect of employment. The aspects of employment include hiring and firing, compensation, promotion or layoff, job advertisements, recruitment, training, fringe benefits, and other terms and conditions of employment. Discriminatory practices also include harassment and retaliation against an individual for filing a charge of discrimination.
Most claims of discrimination involve claims of direct discrimination (“I was discharged because I am Hispanic,” or “I did not get the job because I am female,” etc.). These are called “disparate treatment” cases and are highly fact specific. Normally at issue is why the company took the action in question, as well as things such as written procedures, how individuals of the opposite sex or other races were treated in the same circumstances, and the claimant’s behavior and qualifications.
Some cases are called “disparate impact” cases. These involve company policies or procedures that are neutral on their face, but have an adverse impact on a protected group. Examples could involve educational requirements, which may screen out a larger number of minorities, or a physical requirement, which screens out a larger number of females or members of some minority groups. In that case, the employer must demonstrate the business necessity for the requirement to avoid liability.
Certain exemptions from the discrimination laws are provided for bona fide occupational qualifications, for seniority or merit systems, and for preferential treatment given to Indians on or near a reservation.
A “bona fide occupational qualification” is, generally, one required by business necessity. For example, a movie company looking to hire a leading actress does not need to consider men for the role. The following do not meet the exception:
Individuals must be considered based on individual capacities, not on characteristics generally attributed to the group.
Posting. Employers are required to:
Many states and municipalities that have enacted protections against discrimination and harassment also require a state poster. These state posters include any additional state protections, as well as contact information for the appropriate state agency.