What is “employment discrimination”?
Employment discrimination is a specific area of employment law that is based upon fundamental rights granted or protections afforded under the US Constitution. Employment discrimination laws prohibit certain types of discrimination by employers against employees or prospective employees based upon their protected characteristics. Various federal and state laws prohibit employer discrimination based upon race, ethnicity, sex, religion, national origin, age, physical disability, and sexual orientation. These are known as “protected classes” of individuals. Discrimination generally includes demonstrating biases in actions or decision making in the context of hiring, firing, compensation, benefits, promotion, job details or scheduling, etc. These laws also prohibit retaliation against employees for reporting or bearing witness to any of these forms of discrimination. While the due process clauses of the 5th and 14th Amendments to the US Constitution prohibit these practices by the federal and state governments, numerous federal statutes prohibit this conduct by private employers based upon authority under the Commerce Clause. Lastly, states often pass laws that afford greater protections to employees than those afforded under federal law. This chapter focuses on the major federal statutes protecting employee rights.
• Note: Discrimination may result from creating conditions that are oppressive and cause an employee to leave employment. This is known “constructive discharge”.
• Example: Employer biases may include failing to hire someone because of her race. Less obvious examples include allowing or failing to prevent sexual harassment or the development of a hostile work environment as form of sex-based discrimination.
• Discussion: How do you feel about state and federal government efforts to prevent employer discrimination? What do you think are the government objectives behind these laws? Can you think of any arguments against such regulation? Should these laws be balanced against an employer’s rights with regard to carrying on its business practices?
• Practice Question: What major actions by an employer implicate employment discrimination laws? What reasons or justifications for an employer action are potentially prohibited by employment discrimination laws/
What are the major employment discrimination laws?
The major federal laws and regulations prohibiting employment discrimination were passed as part of several major federal acts and the subsequent amendments thereto. The primary federal acts addressing employment discrimination are as follows:
• The Civil Rights Act of 1964 (Title VII) – Title VII is the most developed body of employment discrimination law. This Act, along with its numerous amendments, prohibits specific types of employer discrimination based on race, sex (including pregnancy and childbirth), color, religion, and national origin. The Act, as amended in 1993, provides for damages for those discriminated against under the Civil Rights Act of 1964, as well as the Americans with Disabilities Act and the Rehabilitation Act.
• Civil Rights Act of 1866 (1981 Act) – The 1981 Act was passed to prohibit discriminatory practices against individuals based upon race. The Act is commonly known as the 1981 Act, as it is found at Section 1981 of title 42 of the US Code of Statutes. The 1981 Act, as amended in 1991, provides the elements for a claim of intentional discriminatory treatment (disparate treatment) and discriminatory policies with a discriminatory impact (disparate impact). The 1981 Act also outlines the remedies available for discriminatory actions.
• The Age Discrimination in Employment Act (ADEA) – The ADEA provides protection for employees over the age of 40 years from discriminatory practices by the employer based upon age. The discriminatory practices prohibited by the ADEA are similar to those prohibited by Title VII.
• Americans with Disabilities Act (ADA) – The ADA prohibits discriminatory practices by employers against employees based upon an employee’s mental or physical handicap. The ADA requires employers to take measures to accommodate the disabilities of certain prospective or current employees.
• The Rehabilitation Act – The Rehabilitation Act is another federal law attempting to protect the rights of individuals suffering from physical and mental handicaps. The Act applies only to the Federal Government, federal contractors, and employers receiving federal financial assistance.
• Genetic Information Nondiscrimination Act (GINA) – The GINA prohibits employers from discriminating against employees based upon information about genetic tests of the individual, past family members, requests for genetic service, etc.
• Uniformed Services Employment and Redeployment Act (USERRA) – The USERRA prohibits employers from discriminating against employees who are also members of the military service. Specifically, it protects employees who are members of the military reserve, state national guard, or national disaster medical system are called to temporary periods of active service from suffering any negative employment consequences.
• Discussion: After reading the short description of the above-listed, federal statutes, what do you think about the Federal Government’s effort to protect specific classes of individuals? Based upon the these laws, do you see in gaps in protection or forms of discrimination that are not prohibited? Should these types of discrimination be prohibited?
• Practice Question: Can you identify the major federal employment discrimination laws and the type of conduct that they prohibit?
CIVIL RIGHTS ACT OF 1964
The Civil Rights Act of 1964 is the most comprehensive statute dedicated to protecting the civil rights of individuals. For purposes of this chapter, Title VII of the Civil Rights Act (Title VII) is wholly dedicated to eliminating discriminatory employment practices. The Act has been amended numerous times since 1964 to provide additional protections.
What are the protections against employment discrimination provided by the “Title VII” of the Civil Rights Act of 1964?
Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ….”. The terms of Title VII have been interpreted very broadly to include any number of adverse actions against the employee based upon race, color, religion, sex, or national origin. This includes retaliation against an employee for making a claim of discrimination or an employee bearing witness to acts of discrimination against another employee.
Applicability – Bona Fide Occupational Qualifications
The provisions of Title VII apply to employers with 15 or more employees, labor unions, and certain other employers. The prohibitions of Title VII are limited to circumstances where an employee does not have a reasonable and justifiable reason for discriminating against an employee or prospective employee. A good faith reason for discriminating against an employee based upon a protected class is known as a “bona fide occupational qualification” (BFOQ). If a specific job or position has a BFOQ that has the effect of discriminating on the basis of religion, sex, or national origination, such discrimination is not illegal. The key aspect of a BFOQ is that the qualification(s) must be reasonably necessary to the normal business operations of the business and the performance of the duties of that position.
• Note: No BFOQ exists for intentional discrimination based upon race or color.
• Discussion: What was happening in 1964 that gave rise to passage of the Civil Rights Act? What do you think are the underlying objectives of Title VII? Do you think Title VII is effective in accomplishing these objectives? Are there any unintended consequences? Why do you think Title VII specifically protects individuals with these characteristics? How do you feel about the exemption of discriminatory practices if a bone fide occupation qualification exists? In your opinion, how necessary should the qualification be to the job for a discriminatory practice to be legal?
• Practice Question: Carrie owns a small business in South Carolina. She does not like to work with men and is resolute about only hiring female employees. What do you need to know to determine whether this practice is legal? Hint: Think about Carrie’s business, state law, and the types of job.
What is the “Civil Rights Act of 1866”?
The Civil Rights Act of 1866, commonly known as the 1981 Act, was passed at the end of the Civil War in an effort to protect minorities against race-based discrimination. The pertinent provisions of the Act reads, “All persons shall have the same right to make and enforce contracts as enjoyed by white citizens.” While the 1981 Act also protects against race-based discrimination, it provides additional protections beyond those of Title VII. It specifically protects against discrimination in hiring, retaliatory firing, and creation of a hostile work environment. It originally allowed for the recovery of damages for intentional discrimination. The Act was amended in 1991 to allow a plaintiff to recover for policies or practices with a discriminatory impact. Unlike Title VII, the 1981 Act allows a plaintiff to bring an action in federal court without filing a complaint through the EEOC. It also allows plaintiffs to recover compensatory and punitive damages in the event of intentional discrimination.
• Discussion: Why do you think Congress passed a separate Act (beyond Title VII) to combat race-based discrimination? Do you believe the objectives of the 1981 Act are the same as those under Title VII? Why or why not?
• Practice Question: Walt is an African-American man applying for a position at a local restaurant. At the interview he noticed that the entire wait staff is Caucasian, while the entire kitchen staff is African-American. During the interview, the restaurant manager indicates that he believes Walt would be a better fit as a kitchen manager. Walt kindly refuses the kitchen manager position and reasserts that he wishes to be considered for the waiter position. The restaurant eventually hires a Caucasian female to fill the waiter position. Does Walt potentially have a cause of action against the restaurant? If so, what are his legal options and procedure for bringing the action?
What is the “Age Discrimination in Employment Act”?
The Age Discrimination in Employment Act of 1967 (ADEA) was passed to address discrimination in employment based upon Age. The Civil Rights Act of 1964 and the Equal Employment Opportunity Act do not protect against discrimination based on age, which makes the ADEA the primary law providing this protection. The ADEA prohibits employers with 20 or more employees from discriminating against employees who are 40 years of age and older. The Act protects against disparate treatment and policies that have a disparate impact on covered employees. Unlike under Title VII, there must be some form of discriminatory intent behind discriminatory impact cases. An employer may defend and ADEA claim by demonstrating that the discriminatory action or policy was motivated by a reasonable factor other than age. The employer does not have to show a business necessity, and it does not matter if there is a less discriminatory policy or manner of achieving the employer’s objective. Plaintiffs may achieve reinstatement in their positions and recover damages for violation of the act. A willful violation may give rise to double the actual damages (including lost wages and any losses resulting from the discrimination). Lastly, the ADEA allows for an action against employers who retaliate against employees for exercising their rights under the ADEA.
• Note: The ADEA has numerous requirements for benefits, pension, and retirement plans that expand upon the protections of the Employee Retirement Income Security Act.
• Example: Discrimination may include disparate treatment, such as failing to hire, discharging, or changing benefits. An example of discriminatory impact includes the practice of establishing mandatory retirement dates for employees. A notable exception to this rule is that high-level executives with qualified retirement plans can be forced to retire.
• Discussion: Why do you think the Federal Government seeks to protect individuals above 40 years of age from discrimination? Why do you think the legal standard for proving a disparate impact case requires a showing of intent by the employer to discriminate? Is this change in standard fair or does it unduly benefit employers? Why?
• Practice Question: Arthur is in his mid-fifties. He is applying for a job at ABC Corp to be a software engineer. He meets all of the qualifications for the job. During the interview it became obvious that the interviewer was worried that his computer skills and work speed would be negatively impacted by his age. One of the questions from the interviewer queried whether Arthur finds himself at a disadvantage when working on projects with 20-year-old colleagues? Arthur did not get the job. Do you think Arthur has a legal cause of action against ABC Corp?
What is the “Americans with Disabilities Act”?
The Americans with Disabilities Act (ADA) is the primary law protecting individuals with disabilities from various forms of discrimination. The ADA specifically prohibits employers from discriminating against job applicants or employees based upon:
• having a disability,
• having a disability in the past, or
• being regarded as having a disability.
The ADA applies to employers with 15 or more employees. Intentional forms of discrimination include hiring, advancement, termination, compensation, training, or other terms, conditions, or privileges of employment. The ADA also prohibits employers from requiring a pre-employment medical examination or asking questions about he job applicant’s medical history. The employer can only ask job related medical questions after a job has been extended.
The ADA defines a disability as “any physical or mental impairment that substantially limits one or more of an individual’s major life activities.” Individuals with an impairment that is “transitory and minor,” do not fall under the ADA protections. The employment discrimination provisions apply to individuals with a “qualified disability”. A qualified disabled is one who, with or without reasonable accommodation, can perform the essential functions of a particular job position. Covered employers must make “reasonable accommodations” to allow the qualified disabled to perform the functions of the job.
Reasonable accommodation under the ADA means adjusting a job or work environment to fit the needs of a disabled employee in carrying on her duties. Common examples of a reasonable accommodation include:
• making the workplace disabled accessible;
• restructuring or adjusting the work schedule;
• purchasing or modifying necessary equipment for use by the disabled; or
• providing appropriate training materials or assistance modified to fit the needs of the disabled employees.
Employers are not required to make an accommodation that causes the employer an undue hardship. An undue hardship is an action requiring significant difficulty or expense to the employer. The cost of the accommodation, the resources of employer, the size of the employer, and the nature of the employer’s business are considered in determining what constitutes and undue hardship.
• Note: The ADA also requires businesses to make reasonable accommodations for customer who use the facilities. This generally includes wheelchair accessible entrances and doorways.
The remedies for violation of the ADA are similar to those under the Civil Rights Act (Title VII). Compensatory and punitive damages are not available for disparate impact but are available for intentional discrimination.
• Discussion: How do you feel about the protections afforded individuals under the ADA? Why do you think Congress specifically excluded coverage of temporary disabilities? How do you feel about the definition of a qualified disabled? Do you agree that employers should always have to make reasonable accommodations for an individual deemed to be a qualified disabled? When defending allegations of failure to make a reasonable accommodation, are you comfortable with a floating standard of “undue hardship”.
• Practice Question: Meredith has Parkinson’s disease. The disease significantly hinders her physical movements. She is applying for a marketing manager position at ABC Corp. She is highly qualified, but ABC chooses not to hire her for fear that her disease will hinder her ability to adequately perform the job duties. If Meredith seeks to sue ABC Corp, what facts about Meredith’s ailment, the position, and ABC Corp will the court examine to determine if there has been discrimination prohibited by the ADA?
What is the “Rehabilitation Act”?
The Rehabilitation Act aims to “promote and expand employment opportunities in the public and private sectors for handicapped individuals.” The Rehabilitation Act prohibits the Federal Government and certain federal contractors from discriminating against employees and contractors based upon a medical disability. The Rehabilitation Act does not distinguish between qualified and non-qualified disabilities, but the ant-discrimination provisions are quite similar to those under the ADA. An individual must still be able to perform the core responsibilities of the position. The federal employer must also make reasonable accommodations for the employee’s disability. The Act also requires the application of affirmative action programs to disabled individuals.
• Discussion: Why do you think Congress failed to distinguish between qualified and non-qualified disabled individuals for purposes of federal employment? Was this wise? Why or why not?
• Practice Question: Bertha is applying for employment with the US Department of Agriculture. She has ocular degeneration, which severely diminishes her eyesight. She is not hired for the position out of fear that her disability will not allow her to perform the job. She is considering filing a complaint under the Rehabilitation Act for discrimination. What would a court review in determining whether a valid complaint exists?
What is the “Genetic Information and Non-Discrimination Act”?
The Genetic Information Nondiscrimination Act (GINA) prohibits employers (those covered by Title VII) from discriminating (hiring, firing, refusing to hire, or otherwise discriminating) based upon an employee or perspective employee’s genetic information. Genetic information includes any information acquired through an individual’s genetic test or the test of her family members. This could include information about a disease or disorder in the family medical history. GINA also prohibits certain activities by employers that seek to identify or solicit information about an individual’s genetic information.
• Example: An employer is prohibited from requiring any information about genetic tests of the individual, past family members, requests for genetic service, etc. Further, an employer cannot request, require, or purchase genetic information with respect to an employee or the family member of an employee.
• Discussion: Why do you think Congress decided to protect individuals from discrimination based upon their genetic information? Do you agree that prohibiting employers from requesting such information is appropriate? Why or why not?
• Practice Question: ABC Corp provides a service of generating genetic sequence information for customers. Jane applies for a position at the company. ABC Corp requires that all new employees submit to a genetic screening. Jane is afraid that the genetic sequence will expose all sorts of private information about her family and health. She refuses to complete the screening and is not hired. Does Jane have a potential cause of action against ABC Corp?
What anti-discrimination protections exist for employees who are also military service members?
The Uniform Services Employment and Reemployment Rights Act (USERRA) protects the rights of service members in the military reserves or state national guards from discrimination based upon their military service obligations. Specifically, the law protects the rights of individual who voluntarily or involuntarily leave their employment to undertake military service or certain types of service in National Defense Medical System. It prohibits public and private employers from denying “initial employment, reemployment, retention in employment, promotion, or any benefit of employment based on current, past, or present obligations flowing from military service.” The general requirements for protection under USERRA are as follows:
• the individual must hold a job outside of the Armed Forces or NDMS (a civilian job);
• the employee volunteers or is called to participate in mobilization (such as training, activation, or deployment), on a temporary basis, with the Armed Forces of National Defense Medical Service;
• the employee must inform her employer that she is leaving the position pursuant to the mobilization;
• the period of service must be under “honorable conditions”; and
• the individual must report back to the civilian employer in a timely manner regarding the mobilization and, if necessary, submit a timely application for reemployment.
The USERRA not only establishes re-employment rights but also protects individuals from retaliation (such as firing, demotion, etc.) for exercising their rights under USERRA. This includes protections for those reporting (or testifying against) an employer for violating USERRA. Covered employees can also elect to continue their employer-based health insurance for up to 24 months of the mobilization. If an employee does not continue her health coverage or coverage is lost, the employee may apply to the employer health insurance program without waiting periods or exclusions and request to be reinstated upon return from deployment. As with many other employment laws, the DOL requires that certain employers display notices of USERRA rights for employees. Individuals discriminated against may bring a private action against the employer or file a complaint with the US Secretary of labor.
• Discussion: Why do you think the Government established USERRA? Can you think of any arguments against enforcing these provisions? Should there be any exceptions to these rules? Why or why not?
• Practice Question: Thomas is a member of the Georgia National Guard. His unit has been called to active duty and will be mobilized to serve as the garrison support unit for Fort Sill, Oklahoma. This will require Thomas to leave his employment for 12 consecutive months. What are Thomas’s rights in this situation?
What federal protections exist from discrimination based upon sexual orientation or identity?
Sexual orientation or identity discrimination in the employment context means any form of employment discrimination based upon the real or perceived sexual orientation (gay, lesbian, bisexual, or heterosexual) or identity (transgender association) of an employee. There are currently no federal statutes in place specifically affording protections to individuals based upon sexual orientation or identity. There are, however, common law decisions at the US Supreme Court and Federal Circuit Court levels that associate sexual orientation and sexual identity with sex-based discrimination. Further, in a federal administrative court case involving a federal employee in 2015, the EEOC determined that sexual orientation (and possibly identity) discrimination is a form of discrimination based upon predispositions about an individual’s sex. The EEOC’s opinion effectively extended sexual orientation protection to all federal employees (as well as employees of federal contractors). Federal courts have not yet extended this logic to discrimination actions against private employers.
• Note: Numerous states (and the District of Columbia) and a few local governments have laws or ordinances protecting employees against sexual orientation and identity discrimination by public and private employers.
• Discussion: How do you feel about the absence of federal statutory protections against discrimination based upon sexual orientation or identity? Are there any arguments for or against such protections? Do you see a general trend in society toward or against protection?
• Practice Question: Bart is an employee of ABC Corp, a large corporation located in State A. State A does not have any state laws protecting employees from discrimination based upon one’s sexual orientation or identity. Bart was recently let go from his job for no apparent reason. He believes that he was fired when his employer learned that he is homosexual. What legal options exist for Bart to challenge his firing?
What is “affirmative action”?
Affirmative action is a federal executive order prescribed to protect federal employees and employees of certain federal contractors. To be covered by this executive order, contractors must have 50 or more employees and hold federal contracts of $50,000 or more. Affirmative action principles require covered employers to take actions to ensure that applicants are treated fairly in the application process and that employees are treated fairly during employment. This means that applicants and employees do not suffer a detriment because of their race, color, religion, sex or national origin. Affirmative actions may include result-oriented procedures used to promote equality in workforce employment and hiring practices. Affirmative action programs generally seek to establish workforces that roughly represent the percentages of qualified individuals present in the available applicant pool (such as the immediate community). Affirmative action programs that prescribe specific numbers of minority hires or provide advantages to minority applicants have been held to be unconstitutional based on grounds of reverse discrimination.
• Note: Private employers who voluntarily adopt affirmative action programs must be careful to avoid quota systems that run afoul of anti-discrimination laws. The Office of Federal Contract Compliance programs can terminate federal contracts with employers who do not comply with its guidelines and can make them ineligible for any future federal business.
• Discussion: How do you feel about affirmative action programs? What are the arguments for and against these programs?
• Practice Question: ABC Corp is a federal contractor. The majority of the employees at the corporation are Caucasian, and it is concerned that the demographics of its work force will disqualify it from future federal contracts. What can ABC Corp do to legally diversify its workforce?
What is the role of state governments with regard to anti-discrimination laws?
All states have statutes and regulations administered by state agencies to protect employees from employment discrimination. Often, these state laws will provide additional protections for employees beyond those provided by federal statutes. The EEOC generally works in conjunction with state administrative agencies in enforcing federal employment discrimination laws. In some states, the EEOC will refer any EEOC charges to the state agency handling such complaints. This is known as “deferral” or “deferral states”. Other states allow an application that the complaint be dually filed with the state administrative agency and the EEOC. If a state administrative agency begins a proceedings or a state law provides relief to a discrimination charge, the EEOC must notify the state officials and wait 60 days before continuing an action. If the state agency begins the investigation process, the EEOC will generally halt processing the claim while the state agency is investigating. If an employee first files with the state agency, the law extends the time for filing with the EEOC to 300 days.
• Discussion: What do you think are the benefits of a state also providing protections against employment discrimination? How do you feel about the procedure for filing both a state and federal action? Why do you think some states accept referral of all EEOC complaints, while others allow for dual processing?
• Practice Question: Anna feels that she has suffered discrimination in her workplace when she was recently fired. She is considering making a legal complaint. What are her options under state law and federal law?