This post is Part I of a pair of posts that will provide a summary of federal employment discrimination law as it applies to private employers. The purpose of these posts is to provide employers with a background for a separate series of posts that we’re hoping to publish regularly regarding recent Equal Employment Opportunity Commission (EEOC) lawsuits. The second post in this two-part series explains the process of filing a discrimination charge against an employer and in what circumstances the employee or EEOC may sue an employer for an alleged violation of federal discrimination law. Our later ongoing series about current EEOC lawsuits will summarize certain new discrimination lawsuits filed by the EEOC against employers. We hope these posts will educate employers on practices to avoid and provide ideas to improve their anti-discrimination efforts. As stated before, these posts are summaries and are not meant to serve as legal advice for any particular entity or individual, nor do these posts create an attorney-client relationship. If you have specific questions or concerns about federal employment law, give us a call, and we’d be happy to help (479-316-3760).
Overview of Areas of Discrimination
Federal law protects employees and applicants from employment discrimination, including:
- “Unfair treatment [or discrimination] because of race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information;
- Harassment by managers, co-workers, or others in the workplace, because of race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information;
- Denial of a reasonable workplace accommodation that the employee needs because of religious beliefs or disability;
- Retaliation because the employee complained about job discrimination, or assisted with a job discrimination investigation or lawsuit;” and
- Unequal pay given by an employer to male and female employees who perform identical jobs or substantially equal jobs.
Some of the above requirements may not apply to private employers with 20 or fewer employees, or to private employers who have fewer than 20 employees who have worked for the employer for 20 or more weeks. However, beyond those limitations, most private employers (“covered employers”) in the U.S. are prohibited from discriminating against their employees as stated above.
Now let’s explore the specific rules regarding prohibited discriminatory practices.
Federal law prohibits discrimination by employers against employees or applicants who fall within any of the below-described protected classes “in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.” In short, covered employers may not discriminate against applicants, employees, or former employees in most any aspect of those employment relationships.
This applies to employees or applicants who are 40 years old or older. The law allows employers to favor older workers over younger workers, even if both workers are 40 or older. An employer’s policy or practice that applies to all employees and/or applicants may be found to be discriminatory based on age if it has a negative impact on employees or applicants who are 40 or older and is not based on a “reasonable factor other than age,” as defined by law.
Sex discrimination includes discriminatory conduct based on an employee or applicant’s gender identity or sexual orientation. An employer’s policy or practice that applies to all employees and/or applicants may be discriminatory if it has a negative impact on employees or applicants “of a certain sex and is not job-related or necessary to the operation of the business.”
- Pregnancy The rules for sex discrimination also apply to unfavorable treatment of employees or applicants “because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.”
Federal law prohibits unfair treatment against qualified employees or applicants with a disability because the employee or applicant has a disability, has a history of a disability, or is believed by the employer to have a disability. Also, employers may not treat an employee or applicant unfavorably based on their relationship with someone who has a disability. In this context, “disability” includes only those disabilities defined by law.
Disability discrimination may include an employer’s pre-offer request for an applicant’s medical or disability information. Federal law prohibits employers from asking an applicant medical questions, requiring an applicant to take a medical exam, or asking an applicant if he has a disability or about the nature of his disability before the employer extends a job offer to the applicant.
Post-offer, federal law allows employers to condition employment on applicant’s answering medical questions or completing a medical exam, but only if the employer requires the same of all new employees in that same type of job.
Once an employee has started working, federal law generally only allows employers to ask that employee medical questions or to require the employee to take a medical exam “if the employer needs medical documentation to support [the] employee’s request for an accommodation, or if the employer believes that [the] employee is not able to perform a job successfully or safely because of a medical condition.”
National Origin Discrimination
“National origin” includes the country or part of the U.S. a person comes from and a person’s actual or perceived ethnicity. “National origin” also includes a person’s accent, but exceptions may be made if the accent would “seriously interfere[ ] with the employee’s job performance.” National original discrimination may also include discrimination based on the national origin of an employee or applicant’s spouse. National origin discrimination may still exist where a person discriminates against someone of the same national origin.
An employer’s policy or practice that applies to all employees and/or applicants may be discriminatory based on national origin if it has a negative impact on employees or applicants “of a certain national origin and is not job-related or necessary to the operation of the business.” For example, an employer may not institute a company-wide “English-only policy” unless doing so is necessary “to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.”
Closely related to national origin, in many situations, federal law also prohibits discrimination based on an employee or applicant’s citizenship or immigration status. The law prohibits employers from refusing to accept lawful documentation that establishes a person’s employment eligibility, or from requiring submission of additional documentation regarding employment eligibility beyond what is legally required, when the employer does so for a discriminatory reason.
Federal law prohibits discrimination based on race or characteristics associated with race (e.g., skin color, facial features, etc.), or based on the fact that an employee or applicant is married to or associated with a person of a certain race or with certain racial characteristics. Race discrimination may still exist where a person discriminates against someone of the same race. An employer’s policy or practice that applies to all employees and/or applicants may be found to be discriminatory based on race if it has a negative impact on employees or applicants “of a particular race or color and is not job-related and necessary to the operation of the business.”
Federal law prohibits unfavorable treatment based on religion or religious beliefs, including in some cases the religion or religious beliefs of an employee or applicant’s spouse. Furthermore, the law prohibits employers from segregating employees in the workplace or by job based on religion, or from forcing employees to participate in religious activity as a condition of employment. “Religion” in this context includes traditional religions, including Christianity, Buddhism, Hinduism, Islam, and Judaism, and sincerely held religious, ethical, or moral beliefs. “Religion” may also include the religious apparel a person chooses to wear, or grooming habits.
Discrimination Based on Genetic Information
Federal law prohibits discrimination based on genetic information and use of genetic information to make employment decisions. Also, federal law generally prohibits employers from requesting, requiring, purchasing, or disclosing genetic information. In this context, “genetic information” “includes information about an individual’s genetic tests and the genetic tests of an individual’s family members . . . an individual’s request for, or receipt of, genetic services; participation in clinical research that includes genetic services by the individual or a family member of the individual[;]” and genetic information of a fetus or embryo carried or legally held by an individual or by certain family members of the individual.
Employers may become liable for workplace harassment when a victim’s continued endurance of the harassment becomes a condition of continued employment, the harassment is so severe and frequent as to create a hostile work environment, or the employer takes certain adverse employment actions against an employee or applicant in relation to the harassment.
“Harassment” may include offensive remarks, racial slurs, physical assaults or threats, intimidation, the display of offensive symbols, etc. A harasser can be anyone, regardless of whether or not they are employed by the employer and regardless of what position they hold if they do work for the employer. Furthermore, a victim of harassment may not necessarily be the person harassed.
Federal law requires employers “to reasonably accommodate an employee’s religious beliefs or practices” and “to provide reasonable accommodation to an employee or applicant with a disability,” unless doing so would cause undue hardship to the employer’s business operations. In this context, “disability” includes any condition related to pregnancy or childbirth, and employers must treat pregnant or post-childbirth employees the same as any other employee with a temporary disability. Reasonable accommodations may include adjusting an employee’s work environment, allowing flexible schedules, modifying workplace policies, etc.
Unlawful retaliatory conduct may include retaliation against an employee or applicant who files an EEOC charge, is a witness in a discrimination investigation, refuses to follow orders that would lead to discrimination, requests a reasonable accommodation for a protected matter (i.e. disability, religious practice, etc.).
Equal pay violations may also count as sex discrimination. Equal pay violations based on sex specifically fall under the Equal Pay Act, but other federal discrimination laws also prohibit unequal pay based on race/color, religion, national origin, age, or disability.
Types of pay covered by the Equal Pay Act include “salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.” If an employer finds that men and women are not being paid equally, federal law prohibits that employer from decreasing wages to equalize the gap.
- Coverage, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/employers/coverage_private.cfm
- Discrimination by Type, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/laws/types/index.cfm (and its associated links).
This article focuses only on federal, not state or local, employment discrimination law as it applies to private employers. For information about the effect of federal discrimination law on other types of employers, see Coverage, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/employers/coverage_private.cfm. State employment discrimination law is often similar to its federal counterpart. An example of a difference between federal and state employment discrimination law is that some states protect classes of people that federal law does not (for example, some states protect employees from discrimination based on marital status).
Federal employment discrimination statutes providing employee protections include Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, the Equal Pay Act (EPA), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA). Laws Enforced by EEOC, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/laws/statutes/index.cfm.
All quoted text in this post comes from the EEOC websites listed in the “References” section.