Employment Discrimination Laws: An Overview

by Junaid M. Afeef – junaid@afeeflaw.com
March 4, 2003

Since the Civil Rights Movement of the 1960s, the federal government has enacted many laws that bar an employer from discriminating against employees on almost any basis except the quality of an employee's work or the nature of an employee's personality.

The best known such law, Title VII, prohibits any employer with fifteen or more employees from discriminating on the basis of race, national origin, gender, or religion. It is illegal under Title VII for an employer to refuse to hire, discipline, fire, deny training or promotion, pay less, or harass an employee based upon his or her membership in a class protected by Title VII. In addition, it is illegal for an employer to adopt a policy or practice that has a "disparate impact" on a protected class, such as by adopting hiring criteria that tend to screen out women or minority group members, or by instituting a required test for promotion on which a particular class tends to score badly. Such a policy or test, like a specific policy that only men or women can have certain jobs, is legal only if it is a "bona fide occupational qualification." An example is a strength test that tends to screen out women, but is a necessary test for fire fighters who must be able to carry disabled citizens down tall ladders. The bar against discrimination on the basis of gender includes discrimination on the basis of pregnancy. Contrary to popular belief, however, Title VII does not just bar discrimination against women and minority group members, but also bars discrimination against male or white employees or applicants. Such discrimination is popularly known as "reverse discrimination," and may be caused, for example, by an over-ambitious affirmative action program.

The federal Equal Pay Act requires any employer that is already subject to the Fair Labor Standards Act (the federal wage and hour law) to provide equal pay to men and women who perform "equal work," unless the difference in pay is caused by differences in seniority, merit or some other factor that is not based upon sex.

The Age Discrimination in Employment Act (ADEA) bars discrimination by any employer with twenty or more employees against employees or applicants who are over the age of forty. An employee may often state a claim under the ADEA if he or she is fired or forced to retire, and then replaced by a younger employee. Many courts have held, however, that, unlike Title VII, the ADEA does not prohibit practices that have a "disparate impact" on older employees, but instead only bars deliberate discrimination against such employees.

The Americans With Disabilities Act (ADA) and the Rehabilitation Act bar discrimination against those who are disabled. The ADA bars discrimination by private employers with more than fifteen employees, and the Rehabilitation Act applies to government entities and federal contractors. Unlike the other civil rights laws, which protect easily-identifiable classes such as race or gender, in order to be protected by the ADA or the Rehabilitation Act, an employee or applicant must show that he or she is, in fact, disabled, has a history of being disabled, or was regarded by the employer as being disabled. Once the employee or applicant makes this showing, however, he or she is not only protected from discrimination, but also entitled to "reasonable accommodation" of the disability if necessary. Reasonable accommodation may include a modified work schedule or work duties, unpaid time off, or special devices that will help the employee perform his or her job duties.

The Immigration Reform and Control Act bars any employer with more than three employees from discriminating against a U.S. citizen, or an "intended citizen" (such as one who may work legally but is not yet a citizen) on the basis of his or her national origin. The law was enacted at the same time that the government strengthened its penalties against employers who hire illegal aliens and was intended to prevent employers from overreacting to the new laws by refusing to hire anyone who appears foreign.

Finally, Executive Order 11246 bars discrimination on the basis of race, gender, or national origin by federal contractors. This law largely duplicates the requirements of Title VII, but includes a requirement that contractors take "affirmative action" to ensure that the proportion of women and minority group members in the workplace is the same as that in the general population.

With the exception of the Equal Pay Act and the Immigration Reform and Control Act, each of these laws requires an employee or applicant who believes that he or she has been discriminated against to exhaust "administrative remedies" prior to bringing suit under the law. This means that anyone who wants to file suit under Title VII, the ADEA, the ADA, the Rehabilitation Act or Executive Order 11246 must first bring his or her claim to the Equal Employment Opportunity Commission (EEOC) or an affiliated state agency, which may investigate the claim and take action on it, or may advise the employee to seek his or her own attorney and proceed him- or herself. In addition, the deadline for bringing such a claim is short, often no more than 180 days. Thus, if an employee or applicant does not bring his or her claim to an administrative agency such as the EEOC quickly, it may be forever barred.

Many states, counties, and municipalities have also enacted anti-discrimination laws that often apply to every employer, no matter how small. Many of these statutes create additional protected classes, such as gays and lesbians, those who have received welfare, and those who are married or unmarried or have children.

© Copyright 2003, Junaid M. Afeef

Email: junaid@afeeflaw.com
Website: www.afeeflaw.com


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