workplace discriminationRACE/COLOR

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color as well as national origin, sex, or religion.

Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features). Color discrimination involves treating someone unfavorably because of skin color complexion.

Race/color discrimination also can involve treating someone unfavorably because the person is married to (or associated with) a person of a certain race or color or because of a person’s connection with a race-based organization or group, or an organization or group that is generally associated with people of a certain color.

Those that discriminate do not have to be of any certain race/color.

The U.S. Equal Employment Opportunity Commission (EEOC) provides, “It is unlawful to discriminate against any employee or applicant for employment because of race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups.”

Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related.

Equal employment opportunity cannot be denied because of marriage to or association with an individual of a different race; membership in or association with ethnic based organizations or groups; attendance or participation in schools or places of worship generally associated with certain minority groups; or other cultural practices or characteristics often linked to race or ethnicity, such as cultural dress or manner of speech, as long as the cultural practice or characteristic does not materially interfere with the ability to perform job duties.

Title VII protects individuals in the following ways:  the recruiting, hiring, and advancement process; compensation; harassment; retaliation; segregation and classification of employees; and pre-employment inquiries or requirements.

DISCRIMINATION IN VIOLATION OF THE AMERICANS WITH DISABILITIES ACT (ADA)

The ADA is a broad civil rights law that prohibits, under certain circumstances, discrimination based on a disability.  The ADA defines disability as “…a physical or mental impairment that substantially limits a major life activity.”

Whether any particular condition is considered a disability is determined on a case by case basis. Certain specific conditions are excluded as disabilities, such as current substance abuse and visual impairment that is correctable by prescription lenses.

Persons with a disability can experience discrimination in various ways.  Whether it be  an employer refusing to hire you based on your disability, inability to access a the city library, or no reasonable accomodation made by the movie theater you frequent, discrimination can occur.

Title I of the ADA provides that a covered entity shall not discriminate against a qualified individual with a disability. This applies to job application procedures, hiring, advancement and discharge of employees, workers’ compensation, job training, and other terms, conditions, and privileges of employment. Covered entity can refer to an employment agency, labor organization, or joint labor-management committee, and is generally an employer engaged in interstate commerce and having 15 or more workers. Discrimination may include, among other things, limiting or classifying a job applicant or employee in an adverse way, denying employment opportunities to people who truly qualify, or not making reasonable accommodations to the known physical or mental limitations of disabled employees, not advancing employees with disabilities in the business, and/or not providing needed accommodations in training materials or policies, and the provision of qualified readers or interpreters.

Under the ADA, employers are required to make what is called a “reasonable accommodation” to those with a known disability if it would not impose an “undue hardship” on the operation of the employer’s business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources and the nature and structure of its operation. An employer is not required to lower quality or production standards to make an accommodation.

Title II of the ADA prohibits discrimination by all public entities at the local and state level regarding accessibility.  This could include state run facilities or locally run facilities (i.e. schools, municipal, city/county buildings).  Title II also includes public transportation provided by public entities. See 42 U.S.C. §§ 1213112165.

Under Title III, no individual may be discriminated against on the basis of disability with regards to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. “Public accommodations” include most places of lodging (such as inns and hotels), recreation, transportation, education, and dining, along with stores, care providers, and places of public displays, among other things. See 42 U.S.C. §§ 1218112189.

PREGNANCY DISCRIMINATION

Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

Women are protected from discrimination on the basis of “pregnancy, childbirth, or related medical conditions” under the Pregnancy Discrimination Act (PDA).  The PDA amended Title VII of the Civil Rights Act of 1964.  It specifically applies to employers with 15 or more employees.

As defined by the U.S. Equal Employment Opportunity Commission (EEOC), ” The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.”

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense). The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability. For more information about the ADA and how our firm can assist you in determining whether you have a discrimination case in regards to pregnancy and/or disability, please call our firm.  We would also refer you to the section of our website covering Discrimination in Violation of the ADA.

It is also unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Harassment is illegal when it is so frequent or severe 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, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Pregnant employees may have additional rights (depending on her employer) under the Family and Medical Leave Act (FMLA).  It is important to know whether or not you qualify for this benefit.

Protections afforded under the PDA include:

Hiring – An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.

Fringe Benefits – Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions.

If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions.

Employees on leave because of pregnancy-related conditions must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.

Health Insurance – Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. An employer need not provide health insurance for expenses arising from abortion, except where the life of the mother is endangered.

Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customary-charge basis.

The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased, or larger deductible can be imposed.

Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.

Pregnancy and Maternity Leave – An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

If an employee is temporarily unable to perform her job because of her pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer also must allow an employee who is temporarily disabled because of pregnancy to do the same.

Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby’s birth. An employer also may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.

Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.

GENDER

Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person’s sex.

Sex discrimination also can involve treating someone less favorably because of his or her connection with an organization or group that is generally associated with people of a certain sex.

Discrimination against an individual because that person is transgender is discrimination because of sex in violation of Title VII.  This is also known as gender identity discrimination.  In addition, lesbian, gay, and bisexual individuals may bring sex discrimination claims.  These may include, for example, allegations of sexual harassment or other kinds of sex discrimination, such as adverse actions taken because of the person’s non-conformance with sex-stereotypes.  For more regarding sexual harassment claims, we refer you to our sexual harassment page available on this website.

SEXUAL HARASSMENT

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

As defined by the U.S. Equal Employment Opportunity Commission (EEOC), “It is unlawful to harass a person (an applicant or employee) because of that person’s sex.” Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe 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, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

The central inquiry is whether the conduct “unreasonably interfered with an individual’s work performance” or created “an intimidating, hostile, or offensive working environment.” The EEOC will look at the following factors to determine whether an environment is hostile: (1) whether the conduct was verbal or physical or both; (2) how frequently it was repeated; (3) whether the conduct was hostile or patently offensive; (4) whether the alleged harasser was a co-worker or supervisor; (5) whether others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual. No one factor controls. An assessment is made based upon the totality of the circumstances.

AGE

The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government.

Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.  Additionally, it is unlawful to harass a worker because of his or her age.

ADEA protections include: apprenticeship programs, job notices and advertisements, pre-employment inquiries, benefits and waivers of ADEA rights.

RELIGIOUS AFFILIATION

Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.

Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.

Title VII of the Civil Rights Act of l964 prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. The Act also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer (see also 29 CFR l605). A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. Flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers are examples of accommodating an employee’s religious beliefs.

HAS YOUR EMPLOYER DISCRIMINATED AGAINST YOU ?

If you think you have been discriminated against by your employer , it is important that you contact the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint. Understand that there are important time limitations for the filing of your charge of discrimination.

To file a charge of discrimination contact any EEOC Field Offices.  If it is found that you have been discriminated against, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You may also be entitled to attorneys fees.

Upon filing a charge of discrimination, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will send a notice and a copy of the charge to the employer. In some cases, the EEOC will ask both you and the employer to take part in  mediation. If the case is not sent to mediation, or if mediation doesn’t resolve the problem, the EEOC will ask the employer to give a written response or answer to your charge of discrimination. There may be additional questions that the EEOC requests the employer to answer. The EEOC then directs your claim to an investigator.

The EEOC may summarily dismiss your charge if it is not filed timely, there is a jurisdictional issue wherein the EEOC does not have the authority to investigate or remedy your charge, or if the EEOC determines that they will not be able to find a charge of discrimination.

If the EEOC determines that it will not take your case or determines that there is no apparent violation from its investigation, it will issue a “Notice-of-Right-To-Sue.”  This triggers another time period for which you will have a limited number of days to contact an attorney and file suit.

Failure to adhere to the claims presentation process and to timely file a lawsuit will likely lead to your claim being time barred.

If you have been discriminated against by your employer, please feel free to contact our office.  Whether you are wanting some direction in the filing an EEOC claim or you have your Right-To-Sue letter and are wanting to explore your options, our office has a track record of helping those that suffer discrimination by their employers.