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Employment Discrimination

Discrimination among employees by an employer is not automatically illegal. An employer may legally discriminate among employees on the basis of their performance, attitude, and even personality. Discrimination is illegal, however, when it is based on an employee's membership in a "protected class." Protected categories include race, sex, national origin, religion, age, and disability.

• For example, Title VII, the best-known federal civil rights law, makes it illegal to discriminate against an employee or applicant on the basis of his or her sex (both men and women are protected by Title VII, which also prohibits discrimination because of pregnancy and sex-based harassment), race, national origin or religion.
• Executive Order 11246 applies this rule specifically to federal contractors (most of who are likely already covered by Title VII).
• The Equal Pay Act makes it illegal to pay a female employee less than a male employee who performs "equal work," unless the pay disparity can be explained by some criteria such as seniority or merit.
• The Americans with Disabilities Act and the Rehabilitation Act (which applies to government employers) make it illegal to discriminate against an employee or applicant because of his or her disability, because the employer regards the employee as being disabled, or because the employee or applicant has a history of being disabled.
• The Age Discrimination in Employment Act (ADEA) prohibits discrimination against an applicant or employee on the basis of age. The ADEA was enacted to protect workers over the age 40. However, many state laws extend this protection to anyone over eighteen years of age, making it illegal to discriminate against younger, as well as older, employees or applicants.
• The Immigration Reform and Control Act makes it illegal to discriminate against a citizen or "intended" citizen on the basis of his or her national origin, essentially making it illegal to refuse to hire an applicant simply because he or she appears foreign.

In addition to barring discrimination against an employee or applicant on the basis of his or her membership in a protected class, most anti-discrimination laws bar an employer from adopting policies or practices that have an "adverse impact" on members of a protected class, even if the employer does not deliberately discriminate. So, for example, hiring requirements that tend to screen out women or minority group members may violate the law, as may promotional criteria that tend to hamper women or minority group members in promotion.

An employer who adopts or uses such a policy or practice must show that it is related to a bona fide occupational qualification. For example, a strength test that tends to exclude women from fire-fighting jobs, but which is necessary to show that an applicant will be able to carry incapacitated persons out of a burning building, is a bona fide occupational qualification. In contrast, an education requirement or test that tends to exclude minority group members, but has no demonstrable connection to an essential job function, is not a bona fide occupational qualification. Similarly, an employer who excludes all women of childbearing age from certain positions because of potential exposure to chemicals that cause birth defects may violate the law. The policy is broader than its purpose requires it to be, excluding most women, and not just those who are pregnant.

Many of the employment discrimination laws also impose recordkeeping requirements on employers. An employer must retain records regarding employee requests for accommodation, employment application forms, materials dealing with the promotion, hiring, demotion, transfer, layoff, or firing of employees, compensation issues, and the selection of employees for training and apprenticeship, for at least one year from the creation of the record or the date of the personnel action to which the record refers. In addition, an employer who has 100 or more employees must file an annual "EEO-1" report with the Equal Employment Opportunity Commission or the appropriate local or state agency, disclosing the racial and gender makeup of its workplace.

An employee who believes that he or she has been discriminated against, typically, may not initially bring suit directly against the employer. Instead, the employee must first bring the claim to an administrative agency, such as the Equal Employment Opportunity Commission. The Commission has the authority to subpoena evidence and require testimony, to attempt to settle or mediate claims, and to bring suit on behalf of an employee. The administrative agency may choose to investigate the employee's allegations, or may decline to investigate and instead advise the employee of the right to bring suit as an individual.

Many states, counties, and local governments have enacted their own anti-discrimination laws, which often apply to any employer, no matter how small, and may bar additional forms of discrimination, such as discrimination on the basis of marital status, sexual orientation or whether an employee or applicant has received welfare.

How Employment Law Attorneys Can Help Employers

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How Employment Law Attorneys Can Help Employers

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