Chapter 10: Discrimination Skip to content Skip to footer


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Congress has enacted numerous federal statutes and state legislatures have passed similar state laws, designed to provide equal employment opportunities to all employees and to protect certain behavior so that such behavior, when engaged in, cannot form the basis of an adverse employment action (such as a failure to hire or promote, demotion, termination).

The most common – and the most well-known – of these statutes prohibit employers from discriminating against employees on the basis of race, color, national origin, religion, sex, pregnancy, age and disability. However, an employer should be aware that these are not the only “protected characteristics (or behaviors)” under federal law. For instance, the U.S. Bankruptcy Code prohibits employers from terminating an employee because the employee has exercised the right to file for bankruptcy protection.

The National Labor Relations Act (NLRA) prohibits employers – even non-union employers – from terminating employees who engage in “protected concerted activity.” Similarly, an employer cannot terminate an employee solely because the employee uses tobacco products or has filed a workers’ compensation lawsuit or has reported illegal activities. These areas of protection for employees are evolving. There are state and federal protections for those serving in the armed forces. There are now protections involving genetic information and conditions. Congress is currently working on measures to provide protection of sexual orientation.

This section will discuss the federal laws identifying these various protected categories within the state. Reference also should be made to other chapters – such as the chapters on termination, safety in the workplace, leaves of absence – which discuss some of these laws as well.

Federal laws prohibiting discrimination include, but are not limited to:

  • Title VII of the Civil Rights Act (Title VII)
  • Section 1981 of the Civil Rights Act of 1866 (Section 1981)
  • Immigration Reform and Control Act (IRCA)
  • Equal Pay Act (EPA)
  • Pregnancy Discrimination Act (PDA)
  • Age Discrimination in Employment Act (ADEA)
  • Older Workers Benefits Protection Act (OWBPA)
  • Executive Order 11246
  • Uniform Services Employment and Reemployment Rights Act (USERRA)
  • Americans with Disabilities Act (ADA)
  • Family and Medical Leave Act (FMLA)
  • U.S. Bankruptcy Code 
  • National Labor Relations Act (NLRA)
  • Genetic Information Nondiscrimination Act (GINA)
  • Employee Retirement Income Security Act (ERISA)
  • various laws with whistleblower protection – including but not limited to the Occupational Safety and Health Act (TOSHA) and the Fair Labor Standard Act (FLSA).

This chapter will provide employers with a general overview of employment discrimination by identifying the protected classifications and summarizing the types of discrimination along with the laws applicable to each. It will also discuss practical guidance on best practices to avoid or defend discrimination claims.

Title VII of the Civil Rights Act

Title VII of the Civil Rights Act (Title VII) prohibits employment discrimination based on race, color, sex, religion and national origin and covers public and private employers who have 15 or more employees (volunteers, independent contractors and directors in corporations are not counted as part of this total). Discriminatory actions prohibited under Title VII include, but are not limited to hiring, terminations, transfers, demotions, negative referrals and harassment. There is currently a split as jurisdictions grapple with whether discrimination based on sexual orientation is prohibited under Title VII.

Employees who file suit under Title VII may base their claim under one of two theories:

  1. disparate treatment
  1. disparate impact.

Disparate treatment

The essence of a disparate treatment claim is that both:

  1. The employer treated the applicant or employee differently than other applicants or employees not within that individual’s protected class.
  1. The employer’s differential treatment was intentional.

When an employee brings a disparate treatment claim under Title VII, he is alleging that his employer treated him differently than others because of his race, color, religion, sex or national origin. While most disparate treatment claims allege that the employee was treated less favorably due to his membership in one of the protected classes, employers need to be aware that courts have found discrimination where an employer’s differential treatment resulted in equal treatment.

For instance, an employer’s use of segregated facilities would constitute disparate treatment, even if the facilities are equal in all respects.

An employee cannot succeed with a disparate treatment claim by simply showing that he was a member of a protected group and then suffered some adverse employment action. To the contrary, the central issue in a disparate treatment claim is whether the employer’s actions were motivated by discrimination and thus, an employee must be able to prove discriminatory intent.

Proof of disparate treatment

Case based on circumstantial evidence

More often than not, an employee does not have direct evidence of an employer’s discriminatory intent and must therefore rely on circumstantial evidence to prove his or her claim. Circumstantial evidence is evidence that, by itself, does not directly prove a fact of consequence, but allows the judge or jury to infer the existence of the fact.

For instance, a female applicant suing an employer for sex discrimination could produce circumstantial evidence in the form of records showing that the company has never hired a woman for the position the applicant sought, despite having had several qualified female applicants over the years.

Litigation of a discrimination claim based on circumstantial evidence proceeds in three steps:

  1. Plaintiff must establish an inference of discrimination. This simply means that the employee must be able to produce enough evidence to create some question as to whether the employer unlawfully discriminated against the employee. The evidence differs depending on what type of discrimination is alleged.
  1. Employer’s response – a legitimate, nondiscriminatory reason. In the event the plaintiff is able to establish an inference of discrimination, the burden shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for its adverse employment actions.
  1. Plaintiff must prove pretext. Should the employer meet this burden of providing a legitimate, nondiscriminatory reason for its decision, the employee must prove that the employer’s articulated nondiscriminatory reason is really just a falsehood to mask unlawful discrimination.

Case based on direct evidence

Direct evidence is evidence based on personal knowledge or observation that, if true, proves discriminatory intent without inference or presumption. Examples of direct evidence include:

  • a notation on an applicant’s resume indicating a discriminatory bias
  • an employer’s facially discriminatory oral or written policies
  • statements (normally by decision makers) demonstrating unlawful bias was a consideration in the challenged action taken against an applicant or employee.

An applicant or employee may rely solely on direct evidence to prove intentional discrimination. If a plaintiff’s direct evidence is sufficient, then the law presumes that discrimination occurred and the burden is on the defendant to prove otherwise. In that situation, the employer usually defends against the claim by producing evidence that disputes the plaintiff’s evidence (for instance, the supervisor did not make discriminatory statements) or by asserting affirmative defenses.

Mixed-motive cases

Suppose an employer is preparing to terminate an employee on a recommendation from two of the employee’s supervisors. These supervisors claim that their recommendation is based on the employee’s poor performance, but the employer discovers that the two supervisors have made statements that could be interpreted as discriminatory. Can an employer go ahead and terminate the employee and avoid monetary damages by claiming that the supervisors would have recommended the termination even if they did not harbor any discriminatory bias? Indeed, it can.

A mixed motive case is characterized by an employee’s providing direct evidence of discrimination (such as discriminatory statements by supervisors) and an employer’s assertion that, while discriminatory intent may have been a motivating factor, the employer would have made the same employment decision had the discrimination not occurred. Employers should be careful in defending a mixed-motive case, however. While an employer may be able to avoid damages in the form of back pay and front pay by showing the same decision would have been made even without discriminatory bias, a court can still award attorney’s fees to an employee so long as discriminatory bias was to any extent involved in the decision-making process.

Avoiding discrimination

Here are some precautionary measures to help avoid or defend against a discrimination charge:

  • Update policies and apply uniformly - One of the most important precautionary measures an employer can take to reduce the likelihood of a successful lawsuit is to ensure that all policies illustrate practices that are in compliance with federal and state laws. In addition, an employer should make certain that all supervisory personnel understand each policy and apply them uniformly to each employee. Employers should be able to demonstrate that employees outside protected classes have not been treated favorably in comparison to the plaintiff and that the employer’s policies have been consistently applied.
  • Conduct honest employee evaluations - Performance evaluations can serve as a powerful tool for employers in defending against discrimination claims. However, if supervisors do not utilize them effectively, evaluations can be equally helpful to litigious employees. For instance, an employer does not want to terminate an employee for poor performance and then have it be discovered that the employee has received nothing but stellar reviews from his or her supervisors. These performance evaluations can be used as evidence to prove that the “poor performance” explanation is simply pretext for the real (discriminatory) reason. Thus, it is imperative that employers train all supervisory and management employees to conduct honest performance evaluations.
  • Document poor performance/bad conduct - Like performance evaluations, conduct reports help to demonstrate an employee’s performance problems. Employees should be made aware of all discipline policies and employers are cautioned to document all disciplinary measures taken against an employee.
  • Provide employee with honest explanation for employment decision - Initiating an adverse employment action (such as discipline) is rarely a pleasant experience for either employers or employees. However, an employer is wise to be candid with employees when discussing reasons for demotions, transfers, discipline or termination. Do not downplay the seriousness of conduct or policy violations in order to avoid an awkward confrontation. To do so might provide an employee with the ability to show that the employer has contrived a false reason to cover up discriminatory intentions.

Disparate impact

Unlike disparate treatment, which focuses on intentional discrimination towards an individual due to his membership in a protected group, the essence of a disparate impact claim is that an employer’s seemingly neutral policy or practice is unlawful because it has a significant adverse impact upon a protected group. The fact that the employer had no discriminatory intent does not shield an employer from liability if the implementation of a policy or procedure results in a discriminatory impact.

As is the case with disparate treatment claims, an employee bears the burden of proving that a particular policy has a disproportionately adverse impact on a protected class. Plaintiffs often rely on statistical evidence to prove their cases. Examples of statistical evidence frequently relied upon include: 

  • selection rates
  • pass/fail rates on qualifying exams
  • population/workforce comparisons.

Put simply, a plaintiff must show that a particular employment practice produced discriminatory results.

Neither courts nor Title VII have articulated just how many instances or how high a percentage the plaintiff must show by statistics to establish a “disproportionate impact,” and courts make this determination on a case by case basis.

Enforcement

Title VII is enforced by both the U.S. Equal Employment Opportunity Commission (EEOC) and through private lawsuits filed in federal court. Before bringing a suit in federal court, a plaintiff must file a charge of discrimination with the EEOC no later than 180 days after the alleged discriminatory event occurred. If the employee’s claim is based on allegations that the employer maintained a continuous discriminatory practice, the employee must file his charge within 180 days of the last occurrence of the alleged discriminatory practice.

After a charge is filed, the EEOC investigates the claim using a “reasonable cause” standard that determines whether it is “more likely than not” that discrimination took place. The focus is on whether the employee established a prima facie case as well as whether there exists any evidence that the employer has contrived of another reason to hide discrimination.

If the EEOC determines that the employee met the reasonable cause standard that discrimination exists, it then attempts to eliminate the unlawful discrimination through discussion and negotiation to see if settlement may be reached, a process called conciliation.

If the EEOC determines that the reasonable cause standard has not been met, it will issue notice to the employee of his right to file a lawsuit on his own behalf (often referred to as a “right-to-sue letter”).

At that point, if an employee decides to file a lawsuit, he must do so within 90 days of receipt of this notice or his claim is untimely.

Remedies

Title VII disparate treatment remedies aim to get rid of discrimination and to “make whole” individual victims of discrimination by restoring them to the position they would have been in had the discrimination never occurred.

Examples of available remedies include:

  • Injunctive relief - Courts may enter an order for injunctive relief to stop unlawful employment practices that might include job requirements, educational requirements, scored tests and age limits.
  • Reinstatement - Reinstatement is a preferred remedy in cases of discriminatory termination but will not be ordered if the result would be to return the employee to an excessively hostile or antagonistic work environment. In addition, courts generally will not order reinstatement if it would result in another employee’s displacement.
  • Retroactive seniority - Retroactive seniority awards an aggrieved plaintiff the amount of seniority he or she would have had the discrimination not occurred.
  • Front pay - Front pay is usually allowed where reinstatement is not possible.
  • Back pay - Back pay awards typically reflect lost wages and benefits.
  • Promotion - Similar to reinstatement, a court will not order an employer to promote a successful Title VII plaintiff if the promotion would result in another employee’s displacement.
  • Compensatory damages - Compensatory damages are only available as a remedy for intentional discrimination. Compensatory damages compensate an employee for non-economic injuries such as pain and suffering, humiliation and harm to reputation.
  • Punitive damages - Punitive damages are also only available as a remedy for intentional discrimination. In determining the appropriateness of a punitive damages award, courts will consider:
    • the degree of reprehensibility of the employer’s conduct
    • the disparity between the harm or potential harm suffered by the plaintiff and his punitive damages award
    • the difference between this particular remedy and the remedies authorized in comparable cases.

Combined compensatory and punitive damage awards will be capped at:

  • $50,000 for employers who have 15 to 100 employees
  • $100,000 for employers with 101 to 200 employees
  • $200,000 for employers with 201 to 500 employees
  • $300,000 for employers with more than 500 employees.

Racial discrimination

Title VII of the Civil Rights Act (Title VII) prohibits employers from discriminating against employees on the basis of race, color, age, sex, disability or handicap status.

As discussed previously, employees may file claims based on race discrimination under Title VII. However, employers must be aware of a second source of protection – the Civil Rights Act of 1866 (Section 1981). Section 1981 is often invoked by employees who are seeking to avoid Title VII’s procedural requirements and in some cases, to provide the employee access to additional damages. Both Title VII and Section 1981 prohibit discriminatory employment decisions based on race or stereotypes often associated with race. In addition, both laws protect against racial harassment.

Title VII vs. Section 1981

Title VII

Section 1981

Protects employees against discrimination based on race, color, sex, national origin and religion.

Protects against race discrimination and retaliation for race discrimination complaints.

Covers only those employers with 15 or more employees.

Covers all private employers, regardless of the number of employees.

Requires a charge of discrimination to be filed with the EEOC within 180 days of the alleged discriminatory event.

Contains no statute of limitations. Thus, the period of limitations to be used is the one provided by an analogous state law.

Requires charge of discrimination to be filed with EEOC prior to filing of suit.

No requirement to file a charge with the EEOC first, nor must complainant wait for a “right to sue letter.”

Appropriate only for cases in which the employer is charged with intentional discrimination in disparate treatment claims.

Appropriate only for cases in which the employer is charged with intentional discrimination.

Statutory cap to its punitive damage awards.

Does not provide a statutory cap to its punitive damage awards.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

National origin discrimination

Title VII of the Civil Rights Act prohibits discrimination based on national origin. While “national origin” pertains to the geographic birthplace of the employee or his or her ancestors, the term also encompasses members of all national groups and groups of persons of common ancestry, heritage or background. Title VII not only protects against discrimination against employees who came from a particular country but also protects employees who associate with persons of a particular national origin. Thus, according to EEOC guidelines, Title VII’s protections cover:

  • marriage with a member of a particular national origin
  • use of a spouse’s name that is associated with a particular national origin
  • membership in schools, churches, temples or mosques generally used by persons of a particular national origin
  • membership in an organization that promotes the interests of national groups.

Immigration Reform and Control Act

The Immigration Reform and Control Act (IRCA) contains two anti-discrimination provisions that aim to deter employers from refusing to hire non-citizens. The first provision extends Title VII’s existing prohibition against national origin discrimination to cover employers with four or more employees and applies to employers that are otherwise outside Title VII’s coverage. The Act’s second provision prohibits discrimination based on citizenship status. This protection is subject to the following three limitations:

  1. The employee, at the time of the alleged discriminatory action must either be:
  • a U.S. citizen
  • an immigrant who is either lawfully admitted for permanent residency, lawfully admitted for temporary resident status or admitted as a refugee who must be pursuing naturalization.
  1. An employer is allowed to prefer hiring a U.S. citizen over an immigrant if the two applicants are equally qualified.
  1. Under the “public function” exception an employer is allowed to:
  • make hiring decisions based on citizenship status if required by law, regulation or executive order
  • discriminate if required by a contract with the federal, state or local government
  • hire only citizens if the Attorney General determines that it is essential for the employer to do business with an agency or department of the federal, state or local government.

Discrimination based on religion

Religion is not defined by the law. Courts define it to be a sincere and meaningful belief occupying in the life of the possessor a place parallel to that filled by the God of admittedly qualified religions. The law protects all aspects of the religion, its observances and practices.

Under Title VII, religious discrimination is marked by an employer’s failure to accommodate an employee’s religious beliefs, thereby forcing the employee to choose between his religion and his job. Thus, Title VII’s prohibition against religious discrimination creates an affirmative duty for an employer to reasonably accommodate an employee’s religious beliefs and practices. This duty effectively makes Title VII’s protection of religion different than the protection given to other protected classes because, in many cases, the duty to accommodate results in an employer providing preferential treatment to those employees professing certain religious beliefs and participating in certain religious practices.

Burden of proof

A plaintiff who claims he or she was discriminated against by his or her employer’s failure to accommodate him or her must first establish three elements:

  1. He or she has a sincere belief that compliance with a work requirement is contrary to his or her religious faith.
  1. He or she informs his or her employer of this conflict.
  1. He or she is discharged or disciplined for failing to comply with the work requirement.

If the plaintiff establishes these three elements, the employer must then prove that it attempted to accommodate the plaintiff’s religious beliefs or was unable to provide an accommodation without putting too much of a burden on the employer. Thus, the issue in most religious discrimination claims is whether the employer’s accommodation is reasonable.

The extent of the duty to accommodate

It is well-settled that an employer, in order to fulfill his duty to accommodate, does not have to provide an employee with the “best accommodation” or the accommodation preferred or proposed by the employee. In order to defend against a failure to accommodate claim, an employer simply must show that it offered a reasonable accommodation to the employee.

An employer does not have to implement any accommodation at all, if to do so would result in an undue hardship. The U.S. Supreme Court has defined “undue hardship” as any accommodation that would impose more than a minimal cost for the employer to implement. Whether an accommodation is reasonable depends on the facts of each case.

Example 1 - An employee requests to take off work for Yom Kippur, which occurs one day each year and may fall on a weekday. Courts will likely require an employer to accommodate him.

Example 2 - An employee claims that his religion requires him to be off work every Monday and Tuesday. Courts are not likely to force an employer to accommodate this employee.

Genetic information discrimination

The federal Genetic Information Nondiscrimination Act (GINA) was passed by Congress to prohibit discrimination in health coverage and employment based on genetic information. Title I of GINA, dealing with health coverage, is taking effect between May 2009 and May 2010. Title II of GINA, dealing with employment protections took effect in November 2009.

Some states have passed laws related to genetic discrimination, All entities that are subject to GINA must, at a minimum, comply with all applicable GINA requirements. For employment matters, employers generally must employ 15 individuals for GINA to apply. Under GINA, “genetic information” includes:

  • an individual’s genetic tests
  • genetic tests of the individual’s family members (relatives to the fourth degree)
  • genetic tests of any fetus of an individual or family member who is pregnant and genetic tests of any embryo held to be used for reproductive purposes
  • the manifestation of a disease or disorder in family members
  • any request for or receipt of, genetic services or participation in clinical research that includes genetic testing, counseling or education by an individual or family member.

Genetic information does not include information about the sex or age of any individual. The results of routine medical tests that do not measure DNA, RNA or chromosomal changes (such as blood counts, cholesterol tests and liver-function tests) are not protected. Genetic tests include tests related to human proteins, metabolites that detect genotypes, mutations, several cancer screening tests, paternity tests and genetic analyses of conditions such as sickle cell anemia and cystic fibrosis. Genetic tests do not include tests that check for viruses or for the presence of alcohol or drugs.

With the nondiscrimination provisions of the Health Insurance Portability and Accountability Act (HIPAA), GINA prohibits covered employers from using genetic information for hiring, firing or promotion decisions and for any decisions regarding terms of employment. Employers may be found to have violated the Act without intending to do so, because there is no intent requirement under GINA. Title II of GINA is enforced by the EEOC. Individuals may also have the right to pursue private litigation. Title I of GINA restricts health insurers or health plan administrators from requesting genetic information or using it for coverage or rate decisions.

The EEOC released regulations under Title II, which became effective January 10, 2011. The provisions of Title II apply to private employers and to state and local government employers who have fifteen or more employees, to employment agencies, to labor unions and to joint labor-management training programs.

The discrimination and retaliation on the basis of genetic information prohibited by GINA does not depend on how the information is acquired. An employer may not request, require or purchase genetic information of an employee or family member. This restriction includes conducting an Internet search on an individual in a way that is likely to obtain genetic information, actively listening to a third-party conversation or searching through a person’s belongings. There are significant exceptions to the restriction on acquisition of genetic information: 

Inadvertent discovery

Inadvertent disclosures are not protected under GINA. However, this exception is limited. A disclosure is inadvertent only if:

  • The employer directs the individual and healthcare provider not to provide genetic information.
  • The employer establishes that a request it made was sufficiently limited to make inadvertent disclosures unlikely.

Voluntary disclosure  

Voluntary disclosures by the individual for purposes of a voluntary wellness program are exempt. To fit this exception, a disclosure must meet the following conditions:

  • The disclosure is voluntary, meaning the employer does not require the information and does not penalize those who do not provide it.
  • The individual provides knowing and voluntary authorization on a written form provided by the employer. The form must be written in a way that is reasonably likely to be understood and clearly states the type of information to be obtained.
  • The information is provided only to the individual and to the healthcare professionals within the program and is not available to managers, supervisors or others in the workplace.
  • Individually identifiable information is not provided to the employer; instead, the employer may only receive aggregate information that will not disclose specific identities.

Financial inducements for employees to participate in health risk assessments are still allowed, provided the individual may receive the incentive even if not answering questions regarding genetic information.

Medical leave requests 

An employer may request family medical information to substantiate the appropriateness of FMLA leave for the care of a sick family member.

Publicly available information 

Passive receipt of genetic information by an employer does not violate GINA when it comes from a source that is commercially and publicly available, such as newspapers, television or Internet. This does not include Internet searches of limited access sites, such as social networking sites that require permission to access certain information.

The EEOC has suggested specific safe harbor language to be included in medical certification requests and other employer forms. That language states: 

The Genetic Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Employers should include the safe harbor language regarding GINA in all requests for medical information from this point forward.

Any genetic information held by an employer covered by GINA must be kept in files that are separate from personnel files and must be treated as confidential medical records. The information may be kept in the same file that maintains information subject to the Americans with Disabilities Act (ADA). An employer may disclose genetic information only under the following circumstances: 

  • upon receipt of written request, to the employee or family member, if the family member is receiving genetic services
  • in response to a court order, to the extent specifically authorized by the order and the employer must notify the employee of the order
  • as a part of an investigation regarding GINA compliance to government officials
  • in support of compliance with the certification requirements under FMLA or other medical leave law
  • in limited circumstances, to a federal, state or local public health agency.

Genetic information received and filed prior to the November 2009 effective date of GINA need not be removed by the employer. Those documents that predate the effective date of GINA, though, are subject to the nondisclosure provisions of GINA now and in the future.

Discrimination based on sex

Title VII of the Civil Rights Act (Title VII) prohibits employment decisions based on sex or based upon sexual stereotypes. “Sex” refers to gender and not to sexual practices or preferences. Other issues included under the broad umbrella of “sex discrimination” include compensation discrimination, pregnancy discrimination and sexual harassment.

Under Title VII, an employer may not make employment decisions based on sex, nor may it implement employment practices that help foster sexual stereotypes. The sole exception to this prohibition is the bona fide occupational qualification (BFOQ) defense.

Bona fide occupational qualification

When an employer asserts the bona fide occupational qualification (BFOQ) defense, it is basically arguing that no man or woman, because of his or her gender, can perform the job at issue.

In order to establish a BFOQ defense, the employer must demonstrate:

  • Direct relationship between an employee’s sex and his or her ability to perform the job - An employer may demonstrate a direct relationship by showing that all or substantially all individuals of one sex would be unable to safely and efficiently perform the duties of a particular position. However, courts will not uphold a rule that is based on sexual stereotypes. For instance, an employer could not implement a policy excluding women from a position that regularly required lifting over 30 pounds because this policy is based on the stereotype that all women are inherently weak.
  • Essence of business - Discrimination based on sex is lawful only when the essence of the business operation would be undermined if the employer is forced to hire members of a both sexes.
  • No reasonable alternative - Although not universally required, many courts required that an employer must also be able to demonstrate that no less restrictive alternative is available other than the exclusion of a gender from the position.

Factors to consider

Factors that courts consider when determining whether a sex-based discriminatory practice is lawful:

  • Safety - The safety of others, not the safety of the employee, has traditionally been the most successful factor in justifying discriminatory practices.
  • Privacy - Courts occasionally uphold sex-based employment policies that are motivated by privacy interests of third parties. For instance, courts traditionally have allowed health club owners who refuse to hire male personal trainers for their female-only clubs to show that sex is a BFOQ. Under this theory, club owners allege that hiring males for a position that often requires close, intimate contact with the clients would be an intrusion into the privacy of the female clients.
  • Customer preference - Normally, customer preference is not sufficient to support a BFOQ defense.
  • Role models - Court may be inclined to uphold a BFOQ defense in situations where an employer asserts a need for an employee to be able to interact and relate with those with whom the employee works. For instance, a court upheld a rule implemented by the Omaha Girls Club that prohibited employment of unwed persons who became pregnant or caused pregnancy. The employer claimed the rule was enacted to provide positive role models in an attempt to discourage teenagers from becoming pregnant.

Compensation disparity

There are both federal and state equal pay laws. The law provides recovery for compensatory and punitive damages for “knowing” violations. The first violation can result in doubling the amount of back pay to a claimant, a second violation can result in treble damages and a third violation can result in quadruple damages.

Equal Pay Act

The Equal Pay Act (EPA) prohibits an employer from discriminating between employees within any establishment on the basis of sex by paying them different wages for positions that require equal skill, effort and responsibility and that are performed under similar working conditions. Under the Act, the term “wages” encompasses all forms of compensation. Thus, a differential in fringe benefits, when all other compensation is equal, may serve as the basis for a claim. While many employment laws require a certain number of employees before they apply, the EPA applies to every employer.

In order to prevail, a plaintiff must be able to identify an employee of the opposite sex who is within the same establishment and receives higher compensation for performing equal work. Courts are clear that they will not compare wages paid to employees from separate places of business unless the plaintiff can show that the employer’s operations are integrated within the separate facilities and that the administration of these facilities is centralized.

When determining whether two jobs are equal, it is the content of the job that is controlling, not the formal job description. Guided by developed case law, the Equal Employment Opportunity Commission (EEOC) lists five factors used to determine whether jobs are substantially the same. Courts will consider the following factors:

  1. Skill - Courts will consider factors such as education, ability, experience and training. Employers should note that courts will focus on what skills are required to do the job, not what skills an individual employee happens to possess. In other words, a difference in pay between two security guards cannot be justified by the fact that one has a master’s degree in classical music because that type of degree is not required for the security officer position.
  1. Effort - The EEOC defines effort as the amount of physical or mental exertion needed to perform the job. Thus, under this definition, two workers on a factory assembly line could hold the same job title, but if one’s job duties require more manual labor, the employer would be justified in paying him more. In addition, courts will also consider differences in the volume of work performed.
  1. Responsibility - The EEOC defines responsibility as the degree of accountability inherent in the job. For instance, a retail supervisor who is responsible for balancing registers and locking the store at the end of the day may be paid more than a sales associate, even if the two individuals perform much of the same duties.
  1. Working conditions - Working conditions refer to “surroundings” (elements regularly encountered by a worker) and “hazards” (the physical hazards regularly encountered, their frequency and the severity of injury they can cause). Thus, an employer is justified in paying more to an employee if his position exposes him to greater hazardous conditions.
  1. Establishment - The prohibition against compensation discrimination under the EPA applies only to jobs within an establishment. An establishment is a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. In some circumstances, physically separate places of business may be treated as one establishment. For instance, if a central administrative unit hires employees, sets their compensation and assigns them to separate work locations, the separate work sites can be considered part of one establishment.
Defenses

An employer may defend against a compensation claim by proving that the difference in pay rate is based on:

  • an established seniority system
  • an established merit system
  • a system that measures earnings by quantity or quality of production
  • any factor other than sex.

Employers should note that in correcting a pay differential, no employee’s pay may be reduced. Instead, the pay of the lower paid employee should be increased.

Enforcement

The Secretary of Labor used to be responsible for enforcing the EPA. Pursuant to the Reorganization Act, the authority to enforce the EPA was transferred to the EEOC. Unlike Title VII, individuals are not required to satisfy any administrative prerequisites before filing suit. Employees must file suit within two years after they become able to pursue legal claims (the first day the employee is paid in a manner that violates the statute).

Lilly Ledbetter Fair Pay Act

The Lilly Ledbetter Fair Pay Act was passed in 2009 in response to a Supreme Court case involving a pay claim in Alabama. The law is retroactive to 2007, just before the Supreme Court ruling. The Act reinstates prior law, clarifying that a discrimination claim for pay based on sex, race, national origin, age, religion or disability accrues when a person receives a discriminatory paycheck, when a discriminatory decision or practice is adopted, when a person becomes subject to that decision or practice or when that person is otherwise affected by the decision or practice. The Act restored prior application of federal law to pay claims. Under the Act, every paycheck (not only the original decision to discriminate) resets the 180-day period to assert a claim. In the way, the law allows employees to challenge continuing pay discrimination, so that a claim is not lost if the employee is initially unaware of the discrimination. The result is that an employee is able to challenge pay discrimination that is compounded by time through raises, pensions and other factors.

Discrimination based on pregnancy

The Pregnancy Discrimination Act (PDA) prohibits employers from intentionally discriminating against pregnant employees or maintaining policies that adversely affect pregnant employees.

Prohibitions

The PDA prohibits discrimination because of pregnancy or child birth only. It does not prohibit adverse employment decisions based on employee conduct caused by the pregnancy. For instance, an employer is justified in terminating an employee for excessive tardiness, even if the tardiness is caused by the employee’s pregnancy-related morning sickness. The PDA does not require employers to treat pregnant employees better than they would any non-pregnant employee who was equally tardy.

Right to voluntary leave

The PDA requires that pregnant women be given at least the same benefits and leave time as any other employee. For instance, if an employer grants short-term disability to all employees, he must allow a pregnant woman sufficient leave to recover from the child birth. Likewise, if an employer allows employees to take leave for personal or family reasons, he must grant this same leave to pregnant employees.

Health insurance

The PDA prohibits employers from discriminating against pregnancy in their health insurance programs. Under the PDA, an employer must:

  • provide the same pregnancy benefits to unmarried employees that it provides to married employees
  • reimburse pregnancy-related expenses under the same method used to reimburse other medical conditions – and provide the same level of health insurance for spouses of male employees as it does for spouses of female employees.

Protection from hazardous work conditions

An employer faces a unique dilemma when employing individuals to work under hazardous work conditions. If it forbids a pregnant woman from working in hazardous areas, it risks Title VII litigation. If it chooses not to exclude pregnant women from hazardous areas, it increases its exposure to personal injury lawsuits if the child is born with injuries that can be tied to the hazardous environment. The Supreme Court has held that it is a violation of Title VII to exclude pregnant women from hazardous positions and has suggested that an employer that fully informs a woman of the risks involved could shield itself from personal injury liability.

Accommodation

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For instance, the employer may be required to provide light duty work, alternative assignments, disability leave or unpaid leave to employees if it does so for other temporarily disabled employees. If an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Discrimination based on sexual orientation or gender identity

In June of 2020 the U.S.Supreme Court found that sexual orientation, gender identity and transgender status were protected characteristics under Title VII of the Civil Rights Act (Title VII).

The EEOC’s has recognized such since it adopted its  Strategic Enforcement Plan (SEP), which listed “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as an enforcement priority for FY2013-16. The EEOC defines transgender as “people whose gender identity and/or expression is different from the sex assigned to them at birth (such as the sex listed on an original birth certificate)”and states that a person need not undergo medical procedures to be considered transgender. HUD has adopted regulations to protect sexual orientation and gender identity in federal housing programs. In 2015, OSHA released a best practices memorandum on providing restroom access for transgender workers. As requirements and principles continue to evolve, employers’ policies should be neutral in respect to sexual orientation, gender identity or expression and sufficiently prohibit harassing conduct based on sexual preference, gender stereotypes or intolerance.

Taking aim at any potentially conflicting state laws in other locations, the EEOC notes that contrary state law is not a defense under Title VII. According to the EEOC: “Gender-based stereotypes, perceptions or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment.”

On the issue of restroom usage, the EEOC has identified certain policies and practices it will review with a charge of discrimination alleging sex discrimination involving transgender restroom usage. An EEOC fact sheet cites administrative rulings that find denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination and that an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees).

The Sixth Circuit has held that discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex under federal law.

Discrimination based on age

The Age Discrimination in Employment Act (ADEA) prohibits discrimination based on age and was passed with several goals in mind. Specifically, the ADEA is designed to:

  • promote the employment of older individuals based on their ability rather than age
  • prohibit arbitrary age discrimination in employment
  • to help employers and employees find ways of resolving problems arising from the impact of age on employment.

The ADEA protects individuals who are 40 years of age or older from employment discrimination based on age and its protections apply to both employees and applicants in both public and private employment. Under the ADEA, it is unlawful for an employer to discriminate against a person because of his or her age with respect to hiring, termination, promotion, layoff, compensation benefits, job assignments and training.

Enforcement

The ADEA applies to employers with 20 or more employees. The number of individuals employed at the time discrimination occurred (not the year in which the charge was filed or the action is brought in federal court) determines whether the number of employees is sufficient to invoke the protection of the ADEA. Like Title VII, filing a charge with the EEOC is a prerequisite to bringing a lawsuit under the ADEA. An employee must file a charge of discrimination with the EEOC within 180 days of the alleged discriminatory act or employment decision and has 90 days from the receipt of a “right to sue letter” to file suit in federal court.

Disparate treatment

Most discrimination cases under the ADEA are brought under the disparate treatment theory. The ADEA has adopted the same general principles governing the burden of proof as those established in Title VII disparate treatment claims. Thus, the plaintiff attempts to establish a prima facie case of discrimination; the employer responds with a legitimate, non-discriminatory explanation for the adverse employment action; and the plaintiff must prove  the employer’s reasoning is false and is used to hide discrimination.

In order to establish a prima facie case, the plaintiff must prove all of the following:

  • he or she is a member of the protected age group (40 or older)
  • he or she was qualified for the position in question
  • despite being qualified, the plaintiff was adversely affected
  • someone substantially younger, with similar or lesser qualifications, received the position (or other job benefit) denied to the plaintiff.

Common questions

  • Is it sufficient for the plaintiff to show that he or she was replaced by someone younger or must the replacement be outside the protected age group? The Supreme Court has held that an employee is not required to show that he or she was replaced by someone outside the protected age group. Thus, a 56-year-old employee may establish a prima facie case of age discrimination by alleging that he was terminated and replaced by an employee who was 40 years old. However, the Supreme Court has also stated that the complainant’s replacement must be substantially younger. Thus, a 68-year-old who is replaced by a 67-year-old will not be able to succeed on an age discrimination claim.
  • May a plaintiff bring a claim if there is no younger replacement? In limited instance, am employee may bring an age claim even though he or she was not replaced. This situation typically arises after a reduction in force (RIF) when an employee alleges that his or her job was eliminated altogether because of his or her age and, thus, he or she cannot identify a younger replacement.

Defenses to an age discrimination claim

Bona fide occupational qualification

The bona fide occupational qualification (BFOQ) is a defense that concedes that age was considered in an employment practice or policy, but that the use of age as a qualification is “reasonably necessary to the normal operation of the particular business.” The Supreme Court has adopted a two-part test for determining whether the BFOQ is a valid defense:

1.   The employer must prove that the challenged policy or practice is “reasonably necessary to the essence of the employer’s business.”

2.   The employer must demonstrate that it is compelled to rely on age as the determining factor for its practice or policy.

The employer may demonstrate this second factor either by demonstrating that it has a “substantial basis for believing that all or nearly all employees above a certain age lack the qualifications required for the position,” or it would be very impractical for the employer to test each individual employee to determine if each has the necessary qualifications.

Bona fide seniority system

The ADEA permits employers to implement a bona fide seniority system so long as it “is not intended to evade the purposes of” the ADEA. To be valid, a seniority system may not require the involuntary retirement of any employee on the basis of age. Seniority systems typically favor rather than discriminate against older workers and, thus, employees rarely challenge termination decisions based on them.

Employers must ensure that all benefit programs comply with the Older Workers Benefit Protection Act (OWBPA) that aims to ensure that all “age-based reductions in employee benefit plans are justified by significant cost considerations.” The OWBPA provides that it is lawful to implement an employee benefit plan where the payments made or costs incurred on behalf of an older employee are at least as large as those incurred on behalf of a younger worker.

The OWBPA contains a few exceptions to this cost-justification defense. For instance, while an early-retirement incentive program is typically legal, it will be deemed invalid if a court finds that it is involuntary or is inconsistent with the purposes of the ADEA. The OWBPA also states that an employer may not reduce contributions to an employee’s pension plan based on age-related reasons.

Reasonable factors other than age and good cause

An employment decision based on good cause or a reasonable factor other than age (RFOA) is lawful. Typically, an employer implements this defense by articulating the legitimate business reason motivating the decision. Courts have held that factors that usually correlate with age, such as pension eligibility, tenure or seniority, usually fail to satisfy the RFOA defense.

“Bona fide executives” or “high policymaking” employees

The ADEA allows an employer to enforce mandatory retirement at age 65 for “bona fide executives” or “high policymaking” employees. When determining whether a particular employee qualifies, courts will consider the nature of the employee’s duties, responsibilities and authority. The ADEA specifies that the employee must have been serving in the bona fide executive position or the high policymaking position for at least two years and the employee may be retired only if he or she is entitled to an immediate, nonforfeitable, annual retirement benefit of at least $44,000 from the employer.

Reduction in force

The central issue raised in ADEA claims brought pursuant to a reduction in force (RIF) is the validity of the employer’s determination of which employees to layoff. Employers have several criteria on which they may lawfully base layoff selections. Examples include:

  • performance, skill, ability
  • productivity
  • inverse seniority.

Potential pitfalls

Employers invite liability when they fail to articulate clear selections standards and review processes. Thus, it is important for employers to implement layoff procedures and to provide documentation that justifies each termination on factors other than age. Employers should avoid the following scenarios:

  • Make sure supervisors are providing and documenting candid and accurate evaluations. Employees should have a good indication of how they are performing and should not be blindsided during a RIF with the knowledge that their performance is lacking.
  • Don’t get caught in a situation where an older employee’s performance rapidly deteriorates in the face of an impending RIF. In this situation, the employer must make an effort to document this decline through conduct reports. Without this safety net, employers may have to rely on performance evaluations that may have occurred before the employee’s performance declined.

There are two techniques employers may use to limit the fallout from RIFs:

  1. Consider a voluntary separation-incentive or early retirement program.
  1. Make sure that separation occurs across all age groups.

Waiver rights

At an employer’s request, an individual may agree to waive any rights or claims he may have under the ADEA in exchange for some benefit to which he is not otherwise entitled. The Older Workers Benefit Protection Act (OWBPA) imposes specific requirements for releases precluding ADEA claims. According to the OWBPA, in order for a release (as part of an individual separation) to be valid, all of the following conditions must be met:

  • The waiver must be in writing and in plain English.
  • The waiver must specifically refer to ADEA claims and rights.
  • The waiver must not cover prospective claims or rights.
  • The waiver must be in exchange for something of value in addition to any benefits or amounts to which the employee is already entitled.
  • The employee must be advised, in writing, to consult with an attorney before he signs any agreement containing a waiver.
  • The employee must be given at least 21 days to consider the agreement; however, if the waiver is requested in connection with a termination or exit incentive program offered to a group of employees, each employee must be given at least 45 days to consider the agreement.
  • The waiver must be revocable for at least seven days following the employee’s execution of the agreement and the waiver will not become effective or enforceable until the revocation period has expired.

In addition to the requirements listed, at the outset of the 45-day period, the employer must inform each eligible employee, in writing, of the class of employees eligible, the specific eligibility requirements, any applicable time limits on participation, the job titles and ages of all employees eligible or selected for the program and the ages of all employees in the same job classification or organizational unit who are not eligible or selected.

Employee’s return of severance benefits

An employee is not required to return severance benefits in order to file a suit. According to EEOC guidance, such a provision violates the law.

The ADEA purports to prevent employers from forcing employees into early retirement for the economic benefit of the company. Thus, while a release may prevent a separating employee from filing a suit based on claims under the ADEA, the employee is always free to challenge the validity of the release itself.

Example - Suppose an employer implements an early-retirement incentive program and has the participants sign releases in exchange for additional severance benefits. The employees accept the benefits, but later wish to challenge the release, claiming they signed under duress. Must the employees tender back the benefits they have already accepted as a prerequisite to filing suit?

The U.S. Supreme Court has held that employees have no obligation to return benefits before filing a suit challenging the validity of a release. To require employees to tender back their benefits would have a “crippling effect” on the ability of such employees to challenge releases obtained by illegal means such as misrepresentation or duress.

Federal contractor compliance with discrimination laws

Executive Order 11246 applies to companies holding contracts and subcontracts with the federal government and prohibits race, color, religion, sex, sexual orientation, gender identity or national origin discrimination with respect to compensation. The Office of Federal Contract Compliance Programs (OFCCP) is the agency in charge of enforcing Executive Order 11246 and regularly conducts compensation audits in order to detect systemic discrimination across pay grades (the purpose of the audit is not to detect isolated, individual cases of discrimination). It is the fundamental mission of the OFCCP to further the goals of affirmative action and nondiscrimination by federal contractors under Executive Order 11246 and the statutory provisions addressing protected veterans and individuals with disabilities.

The OFCCP provided a set of guidelines to be used in enforcing the nondiscrimination requirements of Executive Order 11246. The “interpretive guidelines” articulated methods and legal and statistical standards that will be applied by the OFCCP during routine compliance evaluations. The OFCCP rescinded those guidelines and replaced them with Directive 307 in 2013. The Directive eliminated the articulated standards from the guidelines and substituted more ambiguous criteria that now permits broad OFCCP enforcement discretion. The office conducts Active Case Enforcement procedures, which require full audits of employers.

Employer retaliation against employees or applicants who oppose discrimination

Title VII of the Civil Rights Act (Title VII) prohibits employers from retaliating against applicants or employees because they opposed discrimination or participated in Title VII processes. In order to establish a case of retaliation, an employee must be able to show that the following two events occurred and that there is some causal connection between them:

  1. He or she engaged in a statutorily protected act.
  1. He or she suffered an adverse employment action.

Note: The U.S. Supreme Court has recognized this by protecting employees against retaliation for complaints of race discrimination.

Protected acts

Under Title VII’s participation clause, an employer may not discriminate against an employee because the employee participated in Title VII processes. Specific acts that are protected under the participation clause include:

  • filing a formal charge of discrimination against the employer
  • expressing an intention to file a charge
  • acting as a witness or testifying for a co-worker
  • refusing to act as a witness for the employer
  • assisting fellow workers in their discrimination claims.

Under the opposition clause, an employer may not discriminate against an employee because that employee opposed an employment practice made unlawful under Title VII. In situations where the practice opposed is not deemed unlawful under Title VII, the employee’s opposition is still protected so long as the employee had a reasonable and good faith belief that the practice opposed constituted a violation of Title VII.

Often times, it may not be clear what type of conduct qualifies as protected “opposition.”  Courts have held that the following activities do constitute opposition and therefore are protected under Title VII:

  • complaining about sexual harassment
  • contacting an attorney to complain about sexual harassment
  • asking an employer whether race played a part in an employment decision
  • criticizing in a “quasi-social setting” an allegedly discriminatory hiring practice
  • indicating to a supervisor support for another employee who had filed an EEOC charge
  • filing an Equal Pay Act (EPA) complaint.

Conversely, courts have held that the following activities do not constitute opposition:

  • an African-American employee’s letter to his employer asking to meet to generally discuss affirmative action and race relations issues
  • protesting an employer’s decision not to transfer the employee’s secretary, where the protest was not based on discrimination
  • vague complaints about “ethnicism” and hints of racism.

Adverse employment action

Adverse employment actions such as the following could be used by an employee to prove retaliation:

  • termination
  • demotion
  • transfer
  • implementation of probationary period
  • failure to promote
  • negative references to potential employers
  • harassment.

Causal connection

In a retaliation case, the plaintiff bears the burden of proving that the employer took an adverse employment action in response to the plaintiff’s protected activity. One of the factors courts often consider is the amount of time that has elapsed between the protected activity and the adverse employment action. A short time period between the protected activity and the adverse employment action strengthens an employee’s allegation that the employment action was in response to the activity.

Alternative dispute resolution initiative

The EEOC and the Federal Mediation and Conciliation Service (FMCS) are working together to resolve disputes in the workplace. The agencies announced a memorandum of agreement in April 2019 creating a national working relationship between the two to use Alternative Dispute Resolution to resolve pending conflicts. Through the agreement, the EEOC will identify federal sector cases that would benefit from mediation by FMCS. Although FMCS will provide mediation services to the parties, the EEOC remains responsible for the cases.

Other federal protections employees have

As noted previously, there are other federal protections for employees. These protections prevent employers from discriminating against employees – and more specifically from terminating them – on the basis of certain activity that Congress has determined should be encouraged. These protections include:

  • Employee Retirement Income Security Act - The Employee Retirement Income Security Act (ERISA) includes a provision preventing an employer from discriminating against or terminating an employee because he has filed or may file a claim for benefits under any benefit plan governed by ERISA.
  • U.S. Bankruptcy Code - The U.S. Bankruptcy Code includes a provision preventing an employer from discriminating against or terminating an employee because the employee has filed for bankruptcy protection under the Code.
  • National Labor Relations Act - Included in the National Labor Relations Act (NLRA) is a provision preventing any employer (whether union or non-union) from discriminating against or terminating an employee because the employee has engaged in “protected concerted activity,” that is, activity in concert with other employees raising concerns about wages, hours and working conditions.
  • Family and Medical Leave Act - The Family and Medical Leave Act (FMLA) includes a provision preventing an employer from discriminating against or terminating an employee because the employee has sought or taken protected leave.
  • Occupational Safety and Health Act (OSH Act) - Included in the Occupational Safety and Health Act (OSH Act) is a provision preventing an employer from discriminating against or terminating an employee because the employee has made a complaint to or participated in any action with the Occupational Safety and Health Administration (OSHA).
  • Fair Labor Standards Act - A provision preventing an employer from discriminating against or terminating an employee because the employee has made a complaint to or participated in any action with the Wage and Hour Division is included in the Fair Labor Standards Act (FLSA).
  • Sarbanes-Oxley (SOX) - The Sarbanes-Oxley Act, commonly referred to as “SOX,” contains employee protection provisions that permits whistleblowers within public corporations to file a complaint before the U.S. Department of Labor alleging unlawful retaliation. Section 806 of SOX prohibits public traded companies from discriminating against whistleblowers.