Skip to content Skip to footer

Table of contents

This Minnesota Human Resources Manual is offered to you for free. Find state specific laws and regulations below.

Discrimination — Minnesota

Types of illegal discrimination

In Minnesota, employers are generally prohibited from discriminating against employees on the basis of:

  • race
  • religion
  • color
  • creed
  • sex, sexual orientation and gender identity
  • marital or family status
  • disability
  • public assistance
  • national origin
  • age
  • veteran status
  • local human rights commission activity
  • any other consideration made unlawful by federal, state, or local laws.

Employers should become familiar with the following statutes in order to lessen their exposure to costly litigation and avoid liability for damages that can result from a determination that an employer has violated one of these statutes. Laws prohibiting discrimination include, but are not limited to, the following:

  • Title VII of the Civil Rights Act of 1964 (Title VII)
  • Section 1981 of the Civil Rights Act of 1866 (Section 1981)
  • the Immigration Reform and Control Act (IRCA)
  • the Equal Pay Act (EPA)
  • the Pregnancy Discrimination Act (PDA)
  • the Age Discrimination in Employment Act (ADEA)
  • the Older Workers Benefits Protection Act (OWBPA)
  • Executive Order 11246
  • the Uniform Services Employment and Reemployment Rights Act (USERRA)
  • the Americans with Disabilities Act (ADA)
  • the Rehabilitation Act 
  • the Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA)
  • the Minnesota Human Rights Act (MHRA).

Companies holding contracts or subcontracts with the federal government are subject to additional nondiscrimination and affirmative action obligations according to the federal Executive Order program. Executive Orders 11246 and 11375 mandate that covered contractors undertake affirmative action efforts to promote full employment opportunities for minorities and women. Federal contractors are also required to take affirmative action for disabled workers under the Rehabilitation Act and for certain veterans under the Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA). Contractors doing business with the State of Minnesota or units of local government are also generally required to undertake affirmative action efforts as part of their contract obligations.

Title VII of the Civil Rights Act 

Title VII prohibits employment discrimination based on race, color, sex, religion and national origin. It covers public and private employers that have 15 or more employees (volunteers, independent contractors and directors in corporations are not counted as part of this total). To determine if a company has 15 or more employees, employers should determine the number of both full- and part-time employees on the payroll. For employers hovering around the 15 employee threshold, coverage exists if the employer had 15 or more employees in 20 or more calendar weeks of the current or prior calendar year. Discriminatory actions prohibited under Title VII include, but are not limited to:

  • hiring
  • terminations
  • transfers
  • demotions
  • negative referrals
  • harassment.

It is important to note that an employer may be held liable for the discriminatory animus or intent of a supervisor who did not make the ultimate employment decision if the employee can show that the employer’s decision was influenced by the biased nondecision maker. Employees who file suit under Title VII may base their claim on one of two theories:

  1. disparate treatment
  2. disparate impact.

Disparate treatment

A disparate treatment claim is essentially comprised of two elements:

  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, the employee is alleging that the employer treated the employee differently than others because of the employee’s race, color, religion, sex, or national origin. While most disparate treatment claims allege that the employee was treated less favorably due to the employee's 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 the same treatment. For example, an employer’s use of segregated facilities would constitute disparate treatment, even if the facilities are equal in all outward respects. Discrimination results from the badge of inferiority that attaches to being treated differently on account of membership in a protected category.

Employers also are subject to claims under Title VII for discrimination against a group of employees or job applicants because of some protected group characteristic. A group of employees may bring a Title VII claim alleging that the employer has a formal policy of discrimination, or the employees may allege the employer followed an informal pattern of discrimination against individual members of a protected group. 

An employee cannot succeed with a disparate treatment claim by simply showing that the employee 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 so, an employee must be able to prove discriminatory intent brought about the adverse employment action.

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 the employee's claim. Circumstantial evidence is evidence that, by itself, does not directly prove a fact of consequence, but instead allows the judge or jury to infer the existence of the fact. For example, 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, commonly called the McDonnell-Douglas/Burdine burden-shifting test:

  1. The employee must present evidence upon which a judge or jury could rely to find that the employer intended to discriminate against the employee. 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.
    For example, an applicant who claims she was not hired because she is a woman might prove that:
    • she was qualified for the job
    • she was rejected despite her qualifications
    • after being rejected, the position remained open and the employer continued to seek applicants from persons with the same qualifications.
  • Alternatively, a woman who is claiming that she was fired because of her sex might make an initial showing only that she was replaced by a man who did not belong to a minority group, and there were other circumstances that suggested discriminatory treatment.

    The inference of discrimination in these examples is not enough to prove discrimination, but it is sufficient to place a burden on the employer to come forward with some explanation for its conduct.
  1. Employer’s response – a legitimate, nondiscriminatory reason. - In the event the employee is able to present some evidence from which discrimination may be inferred, the employer is then required to offer a legitimate, nondiscriminatory reason for its adverse employment actions. This does not require the employer to be persuasive, only to meet the burden of providing some explanation.
  2. The employee must persuade the court that the employer actually had a discriminatory motive, or demonstrate that the employer’s explanation for the adverse employment action is not credible. - If the employer provides a legitimate, nondiscriminatory reason for its decision, the employee must then prove that the employer’s articulated nondiscriminatory reason is false or a pretext to mask unlawful discrimination. The burden of persuasion on this issue at all times rests with the person complaining of discrimination.
Case based on direct evidence

Direct evidence is evidence based on personal knowledge or observation that, if true, proves discriminatory intent. Examples of direct evidence include:

  • a notation on an applicant’s resume indicating a discriminatory bias
  • oral or written policies that are discriminatory as written
  • statements (normally by decision makers) demonstrating unlawful bias against an applicant or employee.

An applicant or employee may rely solely on direct evidence to prove intentional discrimination. If an applicant’s or employee’s direct evidence is sufficient to establish a rebuttable presumption of discrimination, the employer usually defends against the claim by producing evidence that disputes the applicant’s or employee’s evidence (for example, the supervisor did not make the alleged 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 perceived 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?

It can, but it should carefully consider potential consequences. A mixed-motive case is often characterized by an employee providing direct evidence of discrimination (such as discriminatory statements by supervisors), but such direct evidence is not required to establish a mixed-motive case. An employer may defend a mixed-motive case by asserting 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, however, should be careful in defending a mixed-motive case. While an employer may be able to avoid reinstating the employee or paying 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 attorneys' fees and other relief to an employee if the discriminatory bias was at all 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 them uniformly - One of the most important precautionary measures an employer can take to protect itself from a 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 it uniformly to each employee.
  • 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 example, as an employer, you do not want to terminate an employee for poor performance and then discover that the employee has received nothing but stellar reviews from the employee's supervisors. Even if the supervisors give everyone a glowing review, these kind of performance evaluations can be used by the employee as evidence to prove that the “poor performance” explanation is simply pretext for the real (discriminatory) reason. Therefore, it is imperative that employers train all supervisory and management employees to conduct honest performance evaluations.
  • Document poor performance and 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. The absence of write-ups of discipline or counseling may be evidence that the employee was performing the job adequately.
  • Provide employees with honest explanations for employment decisions - Initiating an adverse employment action (for example, discipline) is rarely a pleasant experience for either employers or employees. However, an employer should 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. Such an attempt to avoid hurting the feelings of the employee can serve as the basis for a future lawsuit.

Disparate impact

Unlike disparate treatment, which focuses on intentional discrimination towards an individual due to 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. Common examples are minimum education requirements, height and weight standards, and pre-employment test scores. 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, unless the policy is justified by business necessity.

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. Claimants often rely on statistical evidence to satisfy this burden. Examples of statistical evidence frequently relied upon include:

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

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

An employer can defend a disparate impact claim by challenging the adequacy of the employee’s statistical showing, such as by showing that a more refined analysis does not support a finding of disparate impact. Alternatively, an employer may demonstrate that the business practice or hiring device at issue is justified by business necessity and is related to the requirements of a job. Even if the employer is able to put forth such evidence, an employee can still prevail on a claim of disparate impact by showing that an equally-effective hiring device or employment practice was available to the employer and would have had a less severe impact on members of the protected group.

Enforcement of Title VII

Title VII is enforced by both the U.S. Equal Employment Opportunity Commission (EEOC) and through private lawsuits filed in federal or state courts. Before bringing a suit in court, a claimant must file a charge of discrimination (a charge) with the EEOC. In Minnesota, the basic deadline for filing a charge with the EEOC against an employer with more than 15 employees is 300 days after the employee had notice of the alleged discriminatory event, and that deadline is extended to a period of one year for filing a claim against an employer with less than 15 employees. If the employee’s claim is based on allegations that the employer maintained a continuous discriminatory practice, the employee must file the charge within 300 days of the last occurrence of the alleged discriminatory practice. 

After a charge is filed, the EEOC either investigates the claim or defers the investigation to the state or local agency that has jurisdiction. In most cases the EEOC will give the parties the opportunity to resolve the matter through participation in its voluntary mediation program. Besides avoiding the cost of responding to an investigation, the mediation program offers a way to resolve the charge much more quickly for the parties since EEOC investigations typically take ten months to resolve. The administrative agency uses a “reasonable cause” standard to determine whether it is more likely than not that discrimination took place. The focus is on whether the employee has established some evidence of discrimination, as well as whether there is any evidence that the employer’s stated reasons for the employment decision are not credible. If the EEOC determines there is “reasonable cause” to believe the employee’s charges are true, it then attempts to eliminate the unlawful discrimination by persuading the employer to eliminate the discriminatory practice and provide relief to the employee. If the EEOC determines that there is no “reasonable cause” to believe the employee’s charges are true, it will issue notice to the employee of the right to bring a private lawsuit (often referred to as a right-to-sue letter). Lawsuits must be brought within 90 days of receipt of this notice or they will be untimely.

Remedies available under Title VII

Title VII remedies aim to eradicate 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. Title VII also provides for monetary damages that may be awarded only against employers and not against the individual managers or supervisors who are found to have acted with a discriminatory intent or impact. Examples of available remedies include:

  • Injunctive relief - Courts may enjoin unlawful employment practices such as 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 employee the amount of seniority the employee would have had if the discriminatory employment action had not been taken.
  • Front pay - Front pay usually is allowed where reinstatement is not possible, or where the employee has been the victim of a discriminatory failure to hire. Front pay is based upon the time it will take for the employee to reach the employee's rightful place in the employer’s workforce.
  • Back pay - Back pay awards typically reflect lost wages and benefits up until the end of the trial.
  • Promotions - Similar to reinstatement, a court may require an employer to promote a successful Title VII employee, but it is more likely to award front pay if the promotion would result in another employee’s displacement.
  • Compensatory damages - Compensatory damages only are available as a remedy for intentional discrimination. Compensatory damages compensate an employee for noneconomic injuries such as pain and suffering, humiliation and harm to reputation.
  • Punitive damages - Punitive damages also are available, but only as a remedy for intentional discrimination. Punitive damages are not available against governmental employers. 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 employee and  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 with 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.
  • Attorney's fees and costs - A successful employee can recover reasonable attorneys’ fees, expert witness fees, and litigation costs.

The Minnesota Human Rights Act 

The Minnesota Human Rights Act (MHRA) is the state equivalent to the federal statutes on discrimination. The MHRA prohibits certain practices of discrimination based on:

  • race
  • color
  • creed
  • religion
  • national origin
  • sex, sexual orientation and gender identity
  • marital status
  • family status
  • disability
  • public assistance
  • age
  • local human rights commission activity.

Retaliation against employees who oppose practices or acts forbidden under the MHRA is also prohibited.

Enforcement and filing requirements

The Minnesota Department of Human Rights (MDHR) investigates complaints of discrimination brought under the MHRA. Any employee who claims to have been a victim of discrimination, the Minnesota Attorney General, the MDHR, and employers all have standing to file complaints with the MDHR. 

As explained previously, complaints generally must be filed with the MDHR within one year of the alleged discrimination. Upon filing, the MDHR will institute an investigation similar to the investigation discussed earlier with respect to the EEOC. The MDHR may conduct a fact-finding conference and will likely encourage the parties to reach a settlement through mediation. If no settlement is reached and if the MDHR determines there is probable cause to believe the facts alleged constitute a violation of the MHRA, the case will proceed to public hearing before an administrative law judge (ALJ). The result of those proceedings may be reviewed by the courts. If the MDHR finds no probable cause, it will issue a “No Probable Cause” determination letter and will not further pursue the allegations. An employee who disagrees with the findings of a “No Probable Cause” determination letter may request the MDHR reconsideration of its determination but must do so within 10 days of receiving the “No Probable Cause” determination letter.


Remedies under the MHRA include all of the categories of relief available under Title VII with one exception – there is no cap on the amount of compensatory damages that may be awarded.

Racial discrimination

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

  • Unlike Title VII, which protects employees against discrimination based on race, color, sex, national origin and religion, Section 1981 only protects against discrimination based on race, often referred to as race discrimination (although the term is broadly defined).
  • Section 1981 covers all private employers, regardless of the number of employees.
  • Unlike Title VII, which requires a timely charge of discrimination to be filed with the EEOC, generally within 300 days of the alleged discriminatory event, claims under Section 1981 for harassment or unlawful termination on the basis of race may be brought within four years (or two years if based on refusal to hire).
  • The administrative prerequisites to filing a suit in federal court under Title VII do not apply to Section 1981 claims.  Therefore, a complainant does not have to first file a charge with the EEOC, nor must the complainant wait for a right-to-sue letter.
  • Like Title VII disparate treatment claims, Section 1981 is appropriate only for cases in which the employer is charged with intentional discrimination.
  • Unlike Title VII, Section 1981 does not provide a statutory cap on compensatory or punitive damage awards, and those damages may also be awarded against the individuals who engaged in discriminatory conduct.

National origin discrimination

Title VII of the Civil Rights Act

Title VII prohibits discrimination based on national origin. While “national origin” pertains to the geographic birthplace of the employee or the employee's 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. Title VII's protections also extend to prohibit discrimination based on a perception of national origin, even if that perception is incorrect.

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 

Immigration Reform and Control Act (IRCA) contains two anti-discrimination provisions that aim to deter employers from refusing to hire noncitizens. 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 be one of the following:
    • a U.S. citizen
    • an alien 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 alien if the applicants are equally qualified.
  1. The public function exception, where 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.

While the IRCA contains protections for aliens lawfully present in the United States, it makes it unlawful to hire or recruit an unauthorized alien for employment in the United States. Likewise, it is unlawful to continue to employ an alien knowing that the person is or has become unauthorized. An employer may defend itself on the basis of complying with the employment verification system.

Genetic information discrimination

The Genetic Information Nondiscrimination Act (GINA) is enforced by the EEOC and prohibits employers and other entities covered by GINA Title II from requesting, requiring or purchasing genetic information of employees or their family members, and it further prohibits employers from disclosing or making employment-based decisions on any such information it has. Among others, GINA applies to:

  • private and state and local government employers with 15 or more employees
  • employment agencies
  • unions
  • labor-management training programs
  • apprenticeship programs.

Under GINA, it is illegal to discriminate against people because of genetic information. Employers cannot make employment decisions using such information, for example, failing to hire, promote or choosing to demote or fire someone. It is also illegal to harass a person because of genetic information. Harassment can include making offensive or derogatory remarks about an applicant or employee’s genetic information or about the genetic information of a relative of the applicant or employee. Harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area of the workplace, a co-worker or someone who is not an employee, such as a client or customer.

Like other employment discrimination statutes, GINA also contains provisions making it unlawful to retaliate against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit) or otherwise opposing discrimination.


The definition of an employee and a family member is broader than other laws. Under GINA, family members extend to an individual’s fourth-degree relatives, which includes distant relatives such as great-great-grandparents and children of first cousins. Family members also include adopted family members, even though they do not share a common genetic makeup with the employee.

“Genetic information” 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. Genetic information about a family member’s disease or disorder is considered one’s “family history.” 

Genetic tests include any analysis of an individual’s DNA, RNA, chromosomes, proteins or metabolites that detect genotypes, mutations or chromosomal changes. Generally, these can include any number of tests that may reveal an increased risk of acquiring a particular disease. Tests that are not considered genetic tests are tests for HIV, cholesterol and tests for the presence of drugs or alcohol. These all involve analysis of proteins or metabolites that does not detect genotypes, mutations or chromosomal changes.


Employers generally may not request or require genetic information, even non-deliberately. According to EEOC regulations, a request for genetic information includes “conducting an Internet search in a way that is likely to result in obtaining genetic information, as well as ‘actively listening’ to third-party conversations or making requests for information about an individual’s current health status in a way that is likely to result genetic information.”

When it is legitimate to acquire genetic information

There are circumstances when an employer may legitimately come into possession of genetic information without violating GINA’s prohibition on requesting, requiring or purchasing genetic information. However, any such acquired information must be kept confidential and not used by the employer. These circumstances include:

  • when information is acquired inadvertently
  • when information is acquired as part of health or genetic services, including wellness programs
  • when information is acquired in the form of family medical history in order to comply with Family and Medical Leave Act (FMLA) or other local leave laws or policies requiring, for example, return to work certification
  • when information comes from sources that are commercially or publicly available, such as newspapers, books, magazines and even electronic sources
  • when information is gathered as part of a legitimate genetic monitoring program required by law or provided on a voluntary basis  (for example, employers may be required to perform such tests to see if employees are being harmed by substances or energies in the workplace)
  • when information is collected by employers who do DNA testing for law enforcement purposes as a forensic lab or for human remains identification.

Whenever lawfully requesting information (for example, on a physician’s confirmation of medical condition form), employers should include the following disclaimer on the request:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order 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.


Where proper notice is provided, employers will benefit from a safe harbor. Under the circumstances, any acquisition will be considered inadvertent and there will be no liability under GINA.

Storage and disclosure of genetic information

GINA requires employers that are in possession of genetic information to keep it confidential, in the same file as medical information and not in a personnel file. Such information may be disclosed only under limited circumstances: 

  • to the employee or family member about whom the information pertains, upon receipt of the employee’s or family member’s written request
  • to an occupational or other health researcher conducting research in compliance with certain federal regulations
  • in response to a court order, except that the employer may disclose only the genetic information expressly authorized by the order
  • to government officials investigating compliance with Title II of GINA if the information is relevant to the investigation
  • in accordance with the certification process for FMLA leave or state family and medical leave laws
  • to a public health agency but only with regard to information about the manifestation of a disease or disorder that concerns a contagious disease presenting an imminent hazard of death or life-threatening illness.

The federal six-in-one poster that incorporates GINA’s provisions appears is available at:

Religious discrimination

Under Title VII, employers may not require employees or applicants to violate sincerely held religious convictions, absent a showing of undue hardship on the employer’s business or other employees.

Definition of religion

Religion is defined in Title VII to include “all aspects of religious observance and practice, as well as belief.” The EEOC’s regulations define “religious practice” as “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” The law protects all aspects of the religion, its observances, and its practices.

Under Title VII, religious discrimination is marked not only by overt discrimination, but also by an employer’s failure to accommodate an employee’s religious observances, thereby forcing the employee to choose between religion and the job. As such, Title VII’s prohibition against religious discrimination creates an affirmative duty for an employer to reasonably accommodate an employee’s religious practices if it can do so without undue hardship on the business. This duty effectively makes Title VII’s protection of religion different than the protection afforded to other protected classes because, in many cases, the duty to accommodate results in an employer providing preferential treatment to those employees participating in certain religious practices.

Burden of proof

Employees who claim discrimination based on an employer’s failure to accommodate must first establish all of the following three elements:

  1. The individual has a sincere belief that compliance with a work requirement is contrary to the individual's religious faith.
  1. The individual has informed the employer of this conflict.
  1. The individual is discharged/disciplined for failing to comply with the work requirement.

If the employee establishes these three elements, the employer must then prove that it attempted to accommodate the employee’s religious beliefs or was unable to provide an accommodation without undue hardship. Therefore, the issue in most religious discrimination claims is whether the employer’s accommodation is reasonable.

Extent of accommodations

It is well-settled that an employer, in order to fulfill its 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 interpreted “undue hardship” quite favorably for employers in the context of claims for religious discrimination (the contrary is true with respect to claims under the Americans with Disabilities Act). 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 the request.
Example 2
An employee claims that religious practice requires being off work from sundown Friday until sundown Saturday. Courts are not as likely to force an employer to accommodate this employee. The test is the degree of hardship that the employer will incur and whether other employees will have to bear an unwanted burden. An employer is not required to violate the terms of a seniority system set forth in a collective bargaining agreement to accommodate an employee’s request for time off for religious observances.

Sex-based discrimination

Title VII prohibits employment decisions based on sex or sexual stereotypes. In this context, 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 defense.

Bona fide occupational qualification (BFOQ)

When an employer asserts the BFOQ defense, it is basically arguing that no individual of a particular gender, because of the individual's 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 the employee's 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 example, 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 example, 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 example, 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 discrimination

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 which are performed under similar working conditions. Under the Act, the term “wages” encompasses all forms of compensation. Therefore, a differential in fringe benefits, when all other compensation is equal, may serve as the basis for a claim. 

In order to prevail, an employee must be able to identify another employee of the opposite sex who is within the same establishment and receives higher compensation for performing equal work. Courts will not compare wages paid to employees from separate places of business unless the employee 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 matters, not the formal job description. Therefore, courts will consider the following factors:

  • 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.
  • Effort - The EEOC defines effort as the amount of physical or mental exertion needed to perform the job. Therefore, 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 the employee more. In addition, courts will also consider differences in the volume of work performed.
  • Responsibility - The EEOC defines responsibility as the degree of accountability inherent in the job. For example, 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.
  • Working conditions - Working conditions refer to “surroundings” (elements regularly encountered by a worker) and “hazards” (the physical hazards regularly encountered, the frequency and the severity of injury they can cause).  Therefore, an employer is justified in paying more to an employee if the employee's position exposes the employee to greater hazardous conditions.


An employer may defend against a compensation claim brought under the EPA 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 must be increased.


The EEOC enforces the EPA. Unlike Title VII, employees are not required to satisfy any administrative prerequisites before filing suit.  Employees must file suit within two years after the first day the employee is paid in a manner that violates the statute.

Minnesota Women's Economic Security Act

Minnesota’s recently passed legislation requires that state contractors pay men and women equally, extends parental leave from six to 12 weeks, and requires employers to make new accommodations for expecting mothers.

There are nine major changes in the Minnesota legislation that will affect employers.

  1. Increased maternity leave - The legislation expands unpaid leave under the Minnesota Parental Leave Act from six to 12 weeks. The act also requires employers with more than 21 employees to provide reasonable minor accommodations (seating, food and water, limits to heavy lifting, etc.) or position transfer for pregnant workers.  Finally, the act provides enforcement of workplace protections for nursing mothers, allowing mothers to breastfeed during unpaid break times.
  1. Decreased gender pay gap - The legislation decreases the gender pay gap in three ways. First, the act expands support for employers to place low income and older women in nontraditional occupations, and provides funding to Women Venture and Women’s Business Center of Northeast Minnesota to help women start businesses in nontraditional industries. Second, the act also requires businesses with more than 40 employees seeking state contracts in excess of $500,000 to ensure compliance with existing equal pay laws. Third, the act requires equal employment treatment for pregnant women and parents under the Minnesota Human Rights Act and allows employees to use existing sick leave to care for a mother-in-law or father-in-law.
  1. Unemployment insurance for domestic violence and sexual assault victims - The legislation expands unemployment insurance eligibility currently available to victims of domestic violence to include victims of stalking and sexual assault. The act also allows employees to use existing sick leave to address issues related to sexual assault, domestic violence, or stalking. The act furthermore provides additional housing protections for victims of violence.
  1. Protected class for familial status - The legislation expands the Minnesota Human Rights Act by adding familial status as a new protected class. Familial status includes pregnancy, trying to secure legal custody of a child or being a parent, guardian, or designee of a parent or a guardian with a child in domicile. Minnesota employers may face new challenges of alleged discrimination on the basis of this status. Plaintiffs can seek damages and attorneys’ fees.
  1. Expands protections and accommodations for nursing mothers - All Minnesota employers must now provide a private space for nursing, other than a bathroom or toilet stall, that includes access to an electrical outlet. Employees may enforce their breastfeeding rights through civil action, and are entitled to attorneys’ fees if successful. Employers that make a reasonable effort to comply with this provision are held harmless.
  1. Further expands sick leave - This act allows an eligible employee at a covered employer to use sick leave to care for a sick or injured mother-in-law, father-in-law, or grandchild. The act also allows employees to use employer-provided sick leave for “safety leave,” which is defined as leave for the purpose of providing or receiving assistance because of sexual assault, domestic abuse, or stalking. These changes will not affect employers who do not provide sick leave (distinguished from vacation or paid time off).
  1. Mandates certain pregnancy accommodations - If the employee requests, an employer must provide reasonable accommodation, including seating, more frequent restroom, food, and water breaks, limits on heavy lifting of more than 20 pounds, and transfers to a less strenuous position, for conditions related to childbirth, pregnancy, or related health conditions. Employers cannot retaliate against employees for requesting and obtaining a pregnancy-related accommodation.
  1. Prohibits wage nondisclosure agreements - This act prohibits employers from requiring nondisclosure of their wages as a condition of employment. This act additionally mandates employers include notice of employee rights and remedies in this regard in any provided handbooks. This provision goes beyond the wage nondisclosure requirements in the National Labor Relations Act: the Minnesota provision applies to all employees and allows plaintiffs to sue and recover attorneys’ fees.
  1. Expands definition of "employee" for leaves of absence - This act changes the definition of “employee” for purposes of state-mandated parental leave and sick leave. The new definition only requires that the employee worked for the employer for 12 months before the leave request (versus 12 consecutive months immediately preceding the request) and for at least half-time for that 12-month period immediately preceding the leave.

Pregnancy discrimination

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


The PDA prohibits discrimination because of pregnancy or childbirth only. It does not prohibit adverse employment decisions based on employee conduct caused by the pregnancy. For example, 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. Care must be taken, however, because some pregnancy-related conditions may be covered by the ADA or the FMLA and may, therefore, require accommodation by the employer.

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 example, if an employer grants short-term disability to all employees, it must allow a pregnant woman sufficient leave to recover from the childbirth. Likewise, if an employer allows employees to take leave for personal or family reasons, it 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 do all of the following:

  • 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
  • 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 claims 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 liability.

Age discrimination

Congress enacted the Age Discrimination in Employment Act (ADEA) 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
  • 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 age with respect to hiring, termination, promotion, layoff, compensation benefits, job assignments, and training.


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. As with Title VII, filing a charge with the EEOC is a prerequisite to bringing a lawsuit under the ADEA. Because Minnesota is a deferral state, as discussed previously, an employee must file a charge of discrimination with the EEOC within 300 days of the alleged discriminatory act. Likewise, the employee has 90 days from the receipt of a right-to-sue letter to file suit in federal or state 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 employee or applicant attempts to establish some evidence of discrimination; the employer responds with a legitimate, non-discriminatory explanation for the adverse employment action; and the employee or applicant must then prove that the explanation offered is either false or a pretext for discrimination. One important distinction is that it is not sufficient for an employee or applicant to show that age was a significant fact in the decision at issue. Instead, the employee or applicant must meet a more stringent test of showing that the alleged discriminatory action would not have been taken “but for” the employee’s or applicant’s age.

As with claims under Title VII, there is no universal paradigm of what must be proven in every case to make out a prima facie case of discrimination. In general, the employee or applicant must present sufficient evidence of discrimination to allow a reasonable fact finder to draw an inference of discrimination. Therefore, the employee or applicant might prove:

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

Is it sufficient for an employee to show that the employee 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 the employee was replaced by someone outside the protected age group. For example, a 56-year-old employee may establish a prima facie case of age discrimination by alleging that the employee 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 65-year-old who is replaced by a 64-year-old will not likely be able to succeed on an age discrimination claim. Of course, if the employer has a practice of firing employees whenever they reach age 65, or if direct evidence of age bias exists (for example, “we thought it was time you retired”), then a reasonable fact finder could find a discriminatory motive even if the employee was replaced by someone just a couple years younger.

May an employee bring a claim if there is no younger replacement at all?

In limited instances, employees may bring an age claim even though they were not replaced. This situation typically arises after a reduction in force when an employee alleges that the position was eliminated altogether because of the incumbent’s age and, as such, the displaced employee 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 age was considered in an employment practice or policy but claims that the use of age as a qualification is “reasonably necessary to the normal operation of the particular business.” The U.S. 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.”
  1. 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 highly 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, as such, employees rarely challenge termination decisions based on them.

Employment benefit plan/OWBPA compliance

Employers must ensure that all benefit programs comply with the Older Workers Benefit Protection Act (OWBPA), which 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 example, 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 policy-making employees

The ADEA allows an employer to enforce mandatory retirement at age 65 for bona fide executives or high policy-making 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 both:

  • the employee must have been serving in the bona fide executive position or the high policy-making position for at least two years
  • the employee may be retired only if the employee 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 involving 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 and ability
  • productivity
  • most recently hired (i.e., inverse seniority).

Potential pitfalls

Employers invite liability during an RIF when they fail to articulate clear selections standards and review processes. Therefore, it is important for employers to implement layoff procedures and to provide documentation that justifies each termination on factors other than age.

  • 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 at the time of an RIF with an assertion that their performance is lacking.
  • Don’t get caught in a situation where an older employee’s performance appears to have rapidly deteriorated in the face of an impending RIF. It opens an employer to a claim that the performance reports are false and were designed to justify discrimination against the particular older worker during an impending layoff. In this situation, the employer should 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 of ADEA rights

At an employer’s request, an individual may agree to waive any rights or claims the individual may have under the ADEA in exchange for some benefit to which the individual is not otherwise entitled. The OWBPA imposes specific requirements for releases precluding ADEA claims. According to the OWBPA, in order for a release that releases ADEA claims as part of an individual separation to be valid:

  • 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 claims or rights that arise after the date of the waiver
  • the employee may waive rights or claims only in exchange for compensation that is in addition to anything to which the employee is already entitled
  • the employee must be advised, in writing, to consult with an attorney before the employee signing any agreement containing a waiver
  • the employee must be given at least 21 days to consider the agreement
  • the waiver must be revocable for at least seven days following the employee’s execution of the agreement and must not become effective or enforceable until the revocation period has expired.

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 a disclosure regarding the ages of the affected employees in the same decisional unit. In addition, each employee asked to sign a waiver of ADEA rights must be given at least 45 days to consider the agreement.

No return of benefits required to challenge releases

The ADEA prohibits employers from forcing employees into early retirement for the economic benefit of the company. Therefore, 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.

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.

Discrimination and federal contractors

Federal contractors are subject to non-discrimination provisions in addition to the generally applicable federal nondiscrimination laws such as Title VII, the ADA, and/or the ADEA. These additional discrimination prohibitions typically are imposed by laws enacted via executive orders issued by the President, or by rule or regulation, and often enforced by the Office of Federal Contract Compliance (OFCCP). The past several years have witnessed a noticeable increase in the nondiscrimination obligations for federal contractors, whether by Executive Order or by rule or regulation.

Prohibition of discrimination on the basis of sexual orientation and gender identity

Executive Order 11246 applies to companies holding contracts and subcontracts with the federal government and broadly prohibits discrimination with respect to terms and conditions of employment, including compensation. In July 2014, former President Obama issued an Executive Order to expand the protected classes created by Executive Order 11246 to include sexual orientation and gender identity. Regulations too effect in April 2015, and now government contractors subject to the order are prohibited from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. OFCCP is in charge of enforcing Executive Order 11246 and regularly investigates complaints of discrimination and 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).

Although the current administration has initiated efforts to rescind Executive Order 11246, that has not yet been finalized as of this writing, so employers should be aware that these restrictions still remain in place.

Rules for veterans and individuals with disabilities 

OFCCP has established rules to increase the proportion of veterans and individuals with disabilities under the programs it supervises. The rules, which have been in effect since 2014, require contractors to adopt certain hiring benchmarks for veterans and utilization goals for individuals with disabilities. The rules also require additional collection of employment data and voluntary self-identification of veteran/disability status at pre- and post-offer stages.

Promoting Pay Transparency

Executive Order 13665 was issued in April 2014, promoting pay transparency and openness by expressly permitting the employees and job applicants of federal contractors to inquire about, discuss, or disclose their compensation or the compensation of other employees or applicants without fear of discrimination. This non-discrimination provision does not apply to employees or applicants who make the disclosure based upon information obtained in the course of performing essential job functions.

The Final Rule implementing Executive Order 13665 took effect on January 11, 2016, and applies to new federal contracts or alterations to federal contracts occurring on or after January 11, 2016. Federal contracts and employee handbooks must be updated to reflect the new provision, and federal contractors must disseminate the provision by posting it electronically or where it will be available to applicants or employees. The OFCCP generally requires the following language in the handbook and postings:

The contractor will not discharge or in any other manner discriminate against employees or applicants because they have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant. However, employees who have access to the compensation information of other employees or applicants as a part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or (c) consistent with the contractor’s legal duty to furnish information.


Paid sick leave for federal contractor employees

Executive Order 13706, signed in September 2015, requires certain federal contractors to provide employees with up to seven days of paid sick leave every year. Executive Order 13706 applies only to certain categories of federal contracts, including those for services under the Service Contract Act, construction covered under the Davis-Bacon Act, concessions, or contracts in connection with federal property or lands and related to offering services for Federal employees, their dependents or the general public, and excludes contracts for the manufacturing or furnishing of goods subject to the Walsh-Healey Public Contracts Act. 

Under Executive Order 13706, a contractor must permit an employee to accrue not less than one hour of paid sick leave for every 30 hours worked on or in connection with a covered contract, and accrual may be limited to 56 hours per year. Leave may be used for the employee’s own care as well as for family care, with familial relationships being defined fairly broadly (e.g., an elderly neighbor whom the employee considers to be like a grandfather). Employees may also use the paid sick leave for absences resulting from domestic violence, sexual assault, or stalking.

Employers must allow employees to carry over accrued, unused paid sick leave from year to year, but may cap the accrual of paid sick leave at 56 hours. Employers also must notify employees in writing of the amount of paid sick leave they have available at the end of each pay period or month, whichever interval is shorter.

The DOL issued regulations implementing Executive Order 13706 on September 30, 2016, and the regulations are effective as of November 29, 2016. Executive Order 13706 and its implementing regulations will apply to new federal contracts entered into on or after January 1, 2017.

Federal contractors who are required to report labor law violations

Executive Order 13673, regarding Fair Pay and Safe Workplaces, requires prospective federal contractors on contracts exceeding a certain dollar amount to publicly disclose violations of certain labor laws within the prior three years, including, among others, violations of the FLSA, OSHA and equivalent state safety laws, NLRA, Rehabilitation Act, ADA, ADEA, FMLA and Title VII. Covered federal contractors must provide updates on any labor law violations as needed during the bidding process and then once every six months after the contract is awarded. The DOL will use the information reported to determine whether prospective or current contractors have satisfactory records of integrity and business ethics, and to ensure that repeat offenders are not awarded contracts.

Final regulations implementing the Order became effective October 25, 2016, but the reporting of labor law violations is being phased in over time. As of October 25, 2017, covered subcontractors with contracts under consideration with a total value of at least $500,000 (excluding contracts for commercial-off-the-shelf items) must disclose labor law violations dating back to October 25, 2015, and must inform the prime contractor. Beginning October 25, 2018, all covered contractors and subcontractors with a contract under consideration with a total value of at least $500,000 must disclose labor law violations dating back three years.

Executive Order 13673 further requires that as of January 1, 2017, contractors and subcontractors with a contract exceeding $500,000 must provide employees with a wage statement each pay period that sets forth the employee’s hours worked (including any overtime hours), pay, and any additions or subtractions from pay. Employers need not report hours worked for employees who have been informed in writing that they are exempt from the overtime laws. If employers provide pay less frequently than weekly, the wage statement must be broken down into weekly components. Wage statements may be provided electronically if the employee has access to a computer at work.

As of January 1, 2017, employers covered by Executive Order 13673 also must advise independent contractors in writing each time they are engaged to work on government contracts that they are considered independent contractors.

Finally, Executive Order 13673 prohibits covered employers with a government contract of at least $1 million from requiring employees to agree to mandatory arbitration of claims under Title VII or sexual harassment or assault claims in general.

Requiring employers and contractors to report compensation data

On September 29, 2016, the EEOC issued its final revisions to its EEO-1 reports to require all private employers, including federal contractors and subcontractors, with 100 or more employees to submit summary pay data on wages paid to their employees. This reporting requirement is in addition to the current reporting by job category of employee gender, race, and ethnicity. Federal contractors and subcontractors with 50-99 employees will not have to report the summary pay data, but will continue to report by job category of employee gender, race and ethnicity.

The summary pay data reporting requires employers to identify and report employees’ W-2 earnings and hours worked in 12 pay bands, and apply the pay bands to each of the 10 EEO-1 job categories. Individual employees’ wages and salaries are not reported.

The new reporting requirements went into effect for EEO-1 reports due March 31; however, as a result of the government shutdown, the deadline to submit the 2018 EEO-1 report was extended to May 31, 2019. With the new March 31 reporting deadline, employers counted their workforce in any pay period between October 31 and December 31.


Title VII explicitly prohibits employers from retaliating against applicants or employees because they opposed discrimination or participated in Title VII processes. Other civil rights statutes such as Section 1981 have been held to contain an implicit prohibition on retaliation. In order to establish a case of retaliation, an employee must be able to show all of the following:

  • the employee engaged in a statutorily protected activity
  • the employee suffered an adverse employment action
  • the adverse employment action occurred only because of the protected activity.

Third parties, even nonemployees, are protected from retaliation if an employer inflicts reprisals on them because of their close association with someone who has engaged in a statutorily protected activity. Such third parties might include a spouse, family member, or fiancé, and those third parties could very well have the right to bring retaliation claims for their own damages if they are subject to retaliation.

Protected acts

Under Title VII’s participation clause, an employer may not discriminate against an employee because the employee participated in Title VII proceedings. 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, and assisting fellow workers in their discrimination claims. The protection given to the participation activities is almost absolute, and even protects workers who have made false and malicious charges or engaged in conduct suggesting their unsuitability for the particular employment.

Under the opposition clause, an employer may not discriminate against an employee because that employee opposed an employment practice made unlawful under Title VII. This protection extends even to the filing of a discrimination charge that is determined to lack merit. 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 and even participating in an investigation into that employee’s (or another employee’s) claim of 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 complaint.

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

  • an African-American employee’s letter to the 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 “ethnicity” and hints of racism.

Adverse employment action

Adverse employment actions affect the terms and conditions of employment. The following could be considered an adverse employment action:

  • termination, suspension or layoff
  • demotion
  • transfer or reassignment of duties
  • implementation of probationary period
  • failure to promote
  • negative references to potential employers
  • harassment.

In a retaliation context, the adverse action taken against an employee need not rise to the level of being a tangible job detriment in and of itself to be actionable. It is sufficient if the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.

Causal connection

In a retaliation case, the employee bears the burden of proving that the employer took an adverse employment action because of the employee’s protected activity or because of the protected activity of someone closely associated with the employee, according to a 2013 ruling from the U.S. Supreme Court. An employee can no longer prove a retaliation claim simply by proving that retaliation was one of other, lawful motives – a so-called mixed motive theory. Instead, under the 2013 decision, the employee must show that the adverse action would not have occurred “but for” the 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.  Although a short time frame will no longer be sufficient by itself under the 2013 decision, it may strengthen other evidence that shows the employment action was in response to the protected activity.

Another important factor in the causal analysis is the degree to which the employer can show that its decision was made by someone who lacked knowledge of the alleged protected activity. For example, a layoff that is ordered by an employer’s home office might not be a basis for a retaliation claim if the decision-makers in the home office did not know that the employee had earlier filed a discrimination charge. Of course, if the decision was based on performance evaluations that had been completed by someone who did have knowledge of the discrimination charge, then it may be fair for a decision maker to presume the transfer of retaliatory intent was from the supervisor to the home office.