Unlawful Discrimination in the WorkplaceMay 2, 2013

Employment discrimination law revolves around the Civil Rights Act of 1964, which makes it illegal for an employer to discriminate in hiring, firing, promoting, or giving raises on the basis of an employee’s characteristics such as age or gender. Discrimination occurs when your employer bases a decision regarding an employment condition on some legally protected attribute. Discrimination in the workplace can be especially difficult for workers based on the emotional toll it takes and can make the workplace unbearable. However, workers are legally protected from invidious workplace discrimination. Protection from illegal discrimination extends to several classes of employees, and includes the following: Age discrimination, disability discrimination, race discrimination, sex (gender) discrimination, sexual harassment, pregnancy discrimination, national origin discrimination and religious discrimination. 

Age Discrimination

Congress passed the Age Discrimination in Employment Act (ADEA) to address the practice of employment discrimination against older workers, and especially to redress the difficulty such workers faced in obtaining new employment after being released from their jobs. The ADEA’s stated purpose is to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.

The ADEA is part of a statutory scheme protecting employees over 40 years old against discrimination in the workplace nationwide.  The ADEA which was passed by Congress in December of 1967, points out the disadvantage of older workers in retaining employment or regaining employment when displaced from jobs. The ADEA addresses arbitrary age limits which were commonplace at the time of its passage, and embodies congressional recognition that older workers are particularly at risk for long term unemployment. Congress further recognized the undesirable effects of long term unemployment including deterioration of skill, morale and employer acceptability.

Disability Discrimination

Title I of the Americans with Disabilities Act of 1990 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. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act and its implementing rules.

An individual with a disability is a person who:

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment;
• or is regarded as having such an impairment.

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. An employer is required to make a reasonable accommodation for a disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.

Race Discrimination

The Civil Rights Act of 1964 was enacted to prohibit discrimination on the basis of race and color; it is unlawful to discriminate against any employee or applicant for employment because of his/her race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. It is also illegal to make employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups.

Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features). Color discrimination involves treating someone unfavorably because of skin color complexion.

Race/color discrimination also can involve treating someone unfavorably because the person is married to (or associated with) a person of a certain race or color or because of a person’s connection with a race-based organization or group, or an organization or group that is generally associated with people of a certain color. Discrimination can also occur when the victim and the person who inflicted the discrimination are the same race or color.

Sex (Gender) Discrimination

Sex discrimination (now more commonly known as gender discrimination) involves treating someone (an applicant or employee) unfavorably because of that person’s sex. “Sex” encompasses both sex (i.e., the biological differences between men and women) and gender. Adverse employment actions based on gender or stereotypes connected with gender are unlawful.  Sex discrimination also can involve treating someone less favorably because of his or her connection with an organization or group that is generally associated with people of a certain sex.

Discrimination against an individual because that person is transgender is discrimination because of sex in violation of Title VII.  This is also known as gender identity discrimination.

Sexual Harassment

Sexual harassment is amorphous and complicated, taking on many forms and involves many subtleties. Although most sexual harassment claims are filed by women, the harasser can just as easily be a woman, and there are no laws requiring that the victim and harasser be of different sexes (i.e., same sex sexual harassment is also considered against the law). Furthermore, a harasser can be a boss, a supervisor, a co-worker, someone in a different area of your workplace, or even an agent of a supervisor. The victim doesn’t even have to be the one actually harassed, if he or she is negatively affected by harassment around him or her. The two basic types of sexual harassment are Quid Pro Quo and hostile work environment.

• Quid Pro Quo sexual harassment is the more obvious form of harassment, wherein sexual conduct becomes the basis of an employment decision, i.e. a supervisor says, “Have sex with me and I’ll give you the job, or the promotion, or a raise,” or conversely, “If you don’t have sex with me, I’ll fire you.”

• Hostile working environment – while not as easy to define – can just as easily constitute sexual harassment, if the conduct considered harassment is all of the following: Unwelcome, severe, and pervasive in the workplace. A hostile working environment can be as straightforward as a supervisor making sexual advances or asking for sexual favors, or it can be more amorphous, as in the case where a co-worker sends pornographic emails or shares lewd or offensive jokes, out loud, in the workplace.

Pregnancy Discrimination

An employer may not refuse to hire a pregnant woman because of her pregnancy or because of the prejudices of co-workers with regard to pregnancy. Furthermore, an employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee.

National Origin Discrimination

Title VII prohibits employment discrimination on the basis of an individual’s national origin. “National origin” means the country where a person was born or the country from which the person’s ancestors came from. National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not). National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin or because of their connection with an ethnic organization or group.

Discrimination can occur when the victim and the person who inflicted the discrimination are the same national origin.

Religious Discrimination

The Civil Rights Act, specifically Title VII, prohibits employers from discriminating against employees because of their religion. This includes all areas of employment, including hiring, firing and similar terms and conditions. Under the Act, employers are also required to reasonably accommodate the religious practices of their employees, unless doing so creates an undue hardship to the employer. Employers are prohibited from doing the following:

• An employer cannot treat their workers more favorably or less favorably simply because of their religion
• Employees cannot be required to partake, or refrain from partaking, in a religious ritual as an employment condition
• Employers must make reasonable accommodations for their workers’ religious practices (unless doing so would create an undue hardship to the employer)
• Employers cannot take retaliatory action against employees who assert their rights under the Act

Ryan A. Hintzen

Attorney

The Hintzen Law Firm, PLLC