Various federal, state, and local laws prohibit discrimination against employees and job applicants in the terms and conditions of employment. In general, the laws make it unlawful to treat applicants or employees less favorably or differently because they are included in certain “protected categories.” This means all employment decisions should be based on legitimate business-related criteria. Some of the major federal laws and the protected categories under those laws are:
- Title VII of the Civil Rights Act of 1964: prohibits discrimination against employees on the basis of race, color, sex, religion, or national origin.
- Age Discrimination in Employment Act: prohibits discrimination on the basis of age against any employee who is age 40 or older. The ADEA was amended by the Older Workers Benefit Protection Act, which prohibits discrimination in pension benefits and provides limitations and disclosure requirements in some circumstances where an employee or applicant is being asked to waive certain rights under the ADEA.
- Family and Medical Leave Act: requires eligible employees be granted unpaid time off from work on family or medical leave of up to 12 weeks per year without being subject to job discrimination or termination of employment for taking the leave. The right to take leave applies to time off for events such as the birth of a child (or placement for adoption or foster care), to care for an immediate family member with a serious health condition, or for the employee’s own serious health condition.
- Equal Pay Act: amends the Fair Labor Standards Act and prohibits paying different wages to men and women who perform equal work under substantially similar conditions.
- Americans with Disabilities Act: prohibits discrimination against employees and applicants with actual or perceived physical or mental disabilities and requires employers to provide reasonable accommodations to disabled employees for the essential functions of the employees’ positions.
- Civil Rights Act of 1991: amended Title VII and, in summary, broadened the availability of compensatory and punitive damages in the event of intentional discrimination.
- Pregnancy Discrimination Act: amended Title VII and prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions as a form of sex discrimination under Title VII. Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.
Most states have laws that prohibit discrimination on the same grounds as federal law and some additional “protected categories.” For example, several states prohibit employment discrimination based on sexual orientation, gender identity, outside political activities, medical condition, or genetic testing. And there are many local laws that go even further to protect employees and applicants. If state or local laws have protections that are broader than federal law, covered employers must comply with the broader protections.
Retaliation also is considered a form of discrimination under these laws. Federal, state, and local laws prohibit retaliation against employees or applicants who engage in “protected activity.” Protected activity generally means that employers are not permitted to take adverse action against an employee for opposing discrimination against themselves or others, for participating in internal discrimination investigations, or for participating in the EEO process (filing a discrimination complaint with a governmental agency or assisting others with their complaints).
Similar to retaliation, harassment under any of the protected categories also is illegal. It is considered to be a form of discrimination. Sexual harassment is perhaps the type of harassment that gets most of the press, but it is just as illegal to harass an employee or applicant based on his or her race, religion, disability, etc.
Also important, but not as well understood by employers, is the fact that many of these laws also make it illegal to discriminate in the terms and conditions of employment because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
Employers of all sizes should work with human resources or legal counsel to determine which of the employment discrimination laws apply to their workplace. In order to be a covered employer, some of the laws require that you only employ one person, while others have a higher threshold. And some will apply only if there are a requisite number of employees in a particular location, or who have worked a certain minimum number of hours during a specific time frame. You should know which laws apply to you and enact policies and procedures that comply with legal requirements. This is a critical feature of any effective risk-management program. It also is a first step in setting a tone at work that lets your employees know that you take seriously your obligation to provide a safe and healthful workplace.
Barrie Gross is former Vice President and Senior Corporate Counsel (Employment Law) for an international Fortune 1000 company and is a regular contributor to AllBusiness.com. She is the founder of Barrie Gross Consulting, a human resources training and consulting firm dedicated to assisting companies to manage and develop their human capital. Visit www.barriegrossconsulting.com to learn more about Barrie and the services BGC provides.
Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.