RACE, COLOR AND NATIONAL ORIGIN DISCRIMINATION
Discrimination based on an individual’s race, color, or their own, or their ancestor’s place of origin is prohibited. The fact that an individual has the physical, cultural or linguistic characteristics of a racial, color, or national origin group is also an illegal basis for any employment decisions. This includes marriage or association with persons of a minority group, or membership in associations, or churches and schools generally used by that group.
The EEOC has designated five racial categories: (1) white; (2) black or African-American; (3) Hispanic; (4) Asian or Pacific Islander; and (5) American Indian or Alaska Native. Currently other categories are being considered, including one called “other” which is urged since a number of persons refuse to say they fall under one of the above five categories when queried for the census.
The term “color” is not clearly defined but usually is connected to one’s race or national origin so it parallels them. However a charge based on color may be especially appropriate where there exists a mixture of races and/or national origins in an individual and thus color best explains the basis for the discrimination that occurred. The definition for national origin includes a person’s, or his ancestor’s, place of origin, or the fact that the individual has the characteristics of a particular national origin group.
Any employment actions taken by a business which distinguishes between employees based on their membership in a minority is illegal. Examples include differentiating in treatment based on one’s color, type of hair, or other features. Requiring separate facilities for different employee ethnic groups is illegal. Ethnic slurs and other verbal or physical conduct relating to an employee’s minority status is unlawful harassment when it creates a hostile work environment or interferes with the victim’s work.
Generally, the employer is directly liable for any such actions by supervisors or managers as they act as agents for the employer. Liability also exists for such acts by fellow employees or customers once the employer finds out about it, or should have known about the wrongful conduct, and fails to take immediate corrective action. Where requirements of citizenship, height and weight, fluency in English, or non-foreign training have the purpose or effect of discriminating against a particular national origin group, they are illegal.
Speak-English-Only rules are considered a violation if they apply at all times at work, but where the employer can show a business necessity, such a rule can be invoked at certain times based on that necessity. Clear notice of this rule must be given.
AGE DISCRIMINATION
It is unlawful for an employer to discriminate on the basis of age against workers who are at least 40 years old.
Some states provide coverage for broader age groups. Under this law it is illegal to employ help wanted ads with age restrictions such as “25 to 35”, “young” or “college student” or otherwise attempt to hire only individuals in a certain age category. Attempts to achieve a “younger image” for a company through employment decisions is prohibited. Even if both employees are over 40 when a decision is made between them, age cannot be a factor in the action or there will be employer liability.
No worker, except certain executives, can be forced into involuntary retirement at a certain age, and with the removal of the upper protected limit of 70, persons over that age are fully protected also. The fact that a state may have laws involving ages for employment does not insulate a business from liability. However if the employer can show a bona fide occupational qualification for age related limits, then action can be taken on that basis.
Employee pension and benefit plans must treat employees of all ages equally. The fact that a worker is older cannot be a basis for a reduction in benefits when others of different ages are not treated in the same way. “Downsizing” or “RIF’s” (a reduction in force) cannot be discriminatory based on age, and evidence of a statistical disparity disfavoring older workers on a downsizing can be a basis for an adverse impact finding against the business. This involves a statistical showing that the distribution of terminated persons involved a significantly greater number of older persons than was probable without a discriminatory intent.
RELIGIOUS DISCRIMINATION
It is an unlawful employment practice to fail to reasonably accommodate the religious practices of an employee unless it would result in an undue hardship on the employer. This coverage protects members of traditional religions as well as those who have moral or ethical beliefs concerning what is right and wrong which are sincerely held with the strength of traditional religious views. These practices include, for example, observance of a Sabbath or religious holidays, need for prayer breaks during work, dietary requirements, prohibitions against medical examinations and special dress or other grooming habits.
The employer is required to show that an undue hardship would result from each alternative method of accommodation suggested by the employee before it can refuse to grant an employee’s requests. Types of relief that can be considered include voluntary substitutions, swaps of job assignments, flexible scheduling, floating or optional holidays, and lateral transfer and change of job assignments.
Questions about the religion of an applicant or unavailability due to religion before a job offer is made is a violation of the law. Only after a job offer has been made can questions about religion be asked, and even then the employer must prove a business necessity for doing so.
SEXUAL HARASSMENT
The Courts have stated that one of the protections of the discrimination laws is to enjoy a workplace free of harassment based on illegal grounds. The essence of a claim of sexual harassment is that the conditions of a person’s employment have been altered, either by the conditioning of job benefits by the granting of sexual favors, called “quid pro quo” harassment, or by the creation of a hostile work environment. The latter is evidenced by such actions as sexual intimidation or actual touching, verbal abuse, or displays of offensive literature.
The harassment must be severe and pervasive based on all the circumstances so that it leads to a hostile work environment for the complainant to whom it is directed. Factors that show it is hostile can include the frequency and severity of the conduct, whether it interferes with the woman’s job efforts, and whether it is physically threatening or humiliating. The employee must actually be offended by the harassment and perceive that there is a hostile work environment, but there does not need to be any psychological or physical damage to the employee. This is because the damage to her ability to do her job fully and freely is itself barred by the discrimination laws.
The courts require that a reasonable person would perceive the environment at that workplace to be abusive, and this reasonable person is normally a person in the victim’s similar position. Thus most courts today employ the reasonable woman rule-what a woman would perceive from the conduct-to determine the degree of hostile work environment that may exist.
There are a number of forms of sexual harassment that can appear under either quid pro quo or hostile environment cases. The former adds the component that the harasser promises better job conditions if certain sexually harassing conduct is allowed, or threatens worse conditions if it is not. Under either case the types of conduct involved can be broken down into categories. One or all of these categories may apply in a particular case to show a pervasive harassment environment.
Sexual slurs or gestures, leering, repeated obscene jokes, comments about the victim’s body or private life, sexual notes or pictures usually apply to a hostile environment claim, but if agreement to these activities is specifically required as a part of the job then it is also quid pro quo discrimination.
Sexual advances such as repeated unwanted invitations for dates, persistent phone calls, notes, or gifts, and direct sexual contact such as physical touching, feeling, grabbing, impeding or blocking, or direct sexual assault or rape present clear evidence of sexual harassment.
The liability of the employer is based on its knowledge of the activity, and its failure to remedy it immediately if possible. An owner, manager, or supervisor that acts as a harasser generally makes the employer immediately liable under the theory that these persons are the direct agent of the business and thus the employer knows of the harassment through the acts of its own agent. If the harasser is a co-employee or a customer, then the employer is not liable until it receives notice of the problem, or should have known of the problem.
For example, if a supervisor hears rumors of harassment occurring, then a supervisor must investigate and correct the problem. Once the employer has knowledge of harassment by anyone, it must immediately take full and complete corrective action. This includes removing the harasser, not the harassed victim, from the immediate work location near the victim, and provide whatever other remedy is necessary to put the victim and her job back into a safe and proper condition.
If the harassment created stress or humiliation for the victim, or adversely affected her job performance and opportunities for any period, then compensatory damages as well as possible corrections to her job situation and remedial measures for the employer are fully appropriate. The victim does not need to have any psychological damages or have seen a doctor to be eligible for compensation and job protection.
DISCRIMINATION BASED ON SEX
The prohibition of sex discrimination covers both females and males, but the origin of the law was to protect women in the workplace and that is its main emphasis today. This discrimination occurs when the sex of the worker is made a condition of employment (such as only male waiters or carpenters) or where there is a job requirement that does not mention sex but ends up barring many more persons of one sex than the other from the job (such as height and weight limits).
There are a number of special categories where employer rules have been found to discriminate due to sex. These include separate lines of promotion or seniority for women, payment of different wages for the same work, and different pension and fringe benefits. Employer rules barring women from certain jobs based on their marital status or the fact that they have minor children to care for, or treating women differently from men when involved in workplace affairs or extramarital relations are all illegal.
Pregnancy is protected separately by rules that bar mandatory leave policies that require women to take leave at a predetermined time before their delivery date, or an employer’s refusal to grant leave when required under doctor’s orders where such leave would be granted for other medical problems to males on a doctor’s order. Any policy that adversely affects pregnant women or puts them in a different category, such as limiting their job or promotion opportunities upon becoming pregnant, is a violation.
In viewing the discrimination rules mentioned above, the employer can raise a defense that the rules were required because of a business necessity, such as the fact that a certain size or degree of strength is necessary, or a person of a certain sex is necessary because they must work in the theater, or in a dressing room of the same sex. If these defenses are raised, it is up to the employer to carry the burden of proving that they are real, and not just an excuse for sex discrimination. This has become a very high burden and most jobs are now open to both sexes under the law.
DISABILITY DISCRIMINATION
(A) DISABILITY DISCRIMINATION IN JOBS
It is illegal to discriminate against a person in hiring, firing, or other terms and conditions of employment on the basis of their disability. Disability under this law is defined as the state of having a physical or mental impairment which substantially limits one or more major life activities. The law also protects persons who might have a record of such an impairment (such as cancer that is in full remission) or being perceived or rumored to have a disability even if they do not (such as untrue rumors that one is HIV positive).
The term “substantially limits” is difficult to define, and the courts are doing so on a case by case basis. But basically it means that for that person, the disability is significantly restricting a major life activity such as walking, standing, seeing, working (must be a broad range of jobs), or reasoning. Blindness, deafness, and most major diseases that affect motor skills are clearly within the definition.
More difficult to determine are things like back injuries and emotional stress reactions. The disability normally has to be of a long term or permanent nature, and not one such as a temporary injury normally covered by worker’s compensation or temporary disability insurance. However, this disability law can be of special help to persons who need to get back to work, such as those injured while off work or who do not have insurance and need to get back to work before the injury is completely healed.
When an injury takes a long time to heal, or may not be progressing to a cure in a normal fashion, and the treating doctor states that the employee can return to work with certain limitations, the employer must review the job and see if reasonable accommodations can be made to allow the employee to come back to work. Also if light duty work or a change of job is available to other employees, then this employee should have the same opportunity.
If the disabled applicant or employee is “qualified” for a particular job with a reasonable accommodation, then the employer must treat this person the same as all others in hiring and terms of work. To be qualified, the disabled person must be able to perform the “essential functions” of the job, but not necessarily all the job functions if the others are not essential. As an example, if it helps to be able to drive a car occasionally at work but the job does not depend on it, then an applicant’s inability to drive does not disqualify him/her from the job.
Applicants cannot be asked about any disability they may have until after an offer of employment has been made. This is to make it clear that the applicant was otherwise qualified, and if after the discovery of a disability the employer withdraws the offer, the issue is reduced to the disability question of whether the essential functions of the job could be performed with a reasonable accommodation for this disability.
The definition of a “reasonable accommodation” is primary to the disability law. It is any modification to a job, a work environment, or an employment practice that allows an individual with a disability to perform properly in the job. The employer must be given notice of the need for a reasonable accommodation, and then is required to enter into discussions with the person as to what can be done that would not create an undue hardship on the business in terms of cost or effective operations.
(B) DISABLED ACCESS TO PRODUCTS, SERVICES AND PREMISES
The Americans with Disabilities Act (ADA) has a number of sections providing broad protections fordisabled access to commercial businesses and other public facilities.
The best known of these is the requirement that new commercial buildings first occupied after January 26, 1993, or those first occupied after alterations from January 26, 1992 forward, follow new ADA design guidelines (ADAAG). These require exterior wheelchair accessibility and interior design modifications for disabled persons, including such requirements as minimum door width and modifications to bathrooms.
The Fair Housing Amendments Act of 1988 required similar physical access to multi-family housing after March 13, 1991, and Federal buildings and agencies have required such access since the Architectural Barriers Act of 1968. However there are some areas covered in the ADA that have never been addressed before and are not as well known. But they can be very powerful in helping the disabled. These involve “access” to services, privileges, and advantages of a business or public agency.
The latter cannot deny a disabled person service or the sale of a product, or change the pricing or availability, based on the disability unless it can prove that the disability changes the cost to the business of the product or service. Examples of this are changing life insurance or pension benefits based on a disability that is not related to the expected length of one’s life, refusing to sell hamburgers if you cannot get to the counter due to impediments, or refusing to sell auto insurance because the driver has a disability parking permit or special driving modifications.
Refusing to provide medical benefits under an existing policy for HIV positive or cancer patients to the same extent as for other possibly terminal diseases has been found to be illegal. A disabled person should never even be asked about any existing disability when purchasing a product or service, unless a disability condition is directly relevant to the cost structure of the product. If such questioning occurs, an attorney qualified in handling disability cases should be contacted immediately.
RETALIATION, UNLAWFUL TERMINATION, AND OTHER FORMS OF UNFAIR JOB PRACTICES
Protection against employer retaliation takes two forms. The first prohibits retaliation for the opposition to unlawful action or discrimination. Examples of this protection include a worker refusing to participate in illegal or discriminatory acts at work, reporting complaints of illegal discrimination against others to management, or a. supervisor hiring minorities.
“Whistle blowing” statutes at both the Federal and state levels fall in this category by protecting employees opposing illegal acts by their employer. Union activities, including union organizing and certification efforts, are protected and cannot be a basis for adverse employment action under ferderal and most state laws.
The second protection involves freely participating in actions taken against discrimination. Examples are testifying or assisting other employees who are claiming discrimination, seeing a lawyer, participating in an investigation or hearing, providing information of any illegal activities to outside investigators or agencies, or notifying the employer of one’s own filing of a complaint based on illegal action that violates the discrimination laws or other laws that are meant to protect the public. Any such retaliation forms a separate basis for a complaint to the EEOC or the state agency involved.
Unlawful termination is not covered under federal law unless a specific statute such as those discussed above are involved. However many states have unlawful termination statutes or case law which protect workers who have a written employment agreement, or who were led to understand by the employee manual or other method that there would be certain rights and due process procedures involved in any termination. Union contracts almost always have job protection rules with complete arbitration clauses which can serve to protect the worker well if fully invoked. However if there is no union contract, then the degree of protection is usually less and depends on the current law of the state in which the employment occurred, or where the original hiring agreement took place.
Some states provide other additional protections not provided at the Federal level. Included among these are protections barring discrimination on the basis of sexual orientation, marital status, welfare recipient status, wage garnishment for child support, record of an arrest and/or conviction, and armed services or national guard participation. All of these follow the general rules stated under the above categories barring any differentiation in treatment, including harassment, stereotyping, derogatory epithets, or discrimination based on membership in associations connected to the group protected by the law.
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