Employment Law: Your Rights & Solutions

Unlawful employment practices are prohibited by law in many jurisdictions. These practices include discrimination in hiring, promotion, or termination based on protected characteristics such as race, colour, religion, sex, national origin, age, disability, or genetic information. Unlawful employment practices also encompass sexual harassment, hostile work environments, and retaliation against employees for engaging in protected activities such as filing complaints or reporting illegal conduct. In the United States, for example, federal laws enforced by the Equal Employment Opportunity Commission (EEOC) prohibit such discrimination and provide legal avenues for employees to seek redress. Similarly, wrongful termination occurs when an employer fires an employee for illegal reasons, including discrimination or breach of contract, and is actionable under the law. Understanding and upholding workers' rights is essential for fostering fair and equitable employment practices.

Can an unlawful employment practice be solved by law?

It is important to note that this table provides a general overview, and specific laws and protections may vary depending on location and other factors.

Discrimination in hiring

According to federal employment law in the United States, applicants are protected from employment discrimination based on race, color, religion, sex, national origin, age, disability, or genetic information. Despite this, discriminatory practices persist. A 2023 survey by Greenhouse found that over one-third of candidates experienced discriminatory interview questions, commonly about age, race, or gender.

The laws enforced by the Equal Employment Opportunity Commission (EEOC) in the United States prohibit employers from using neutral employment policies and practices that disproportionately negatively impact applicants or employees based on their race, color, religion, sex, national origin, age, or disability. These laws also apply to individuals or groups with a particular protected characteristic, ensuring that preferential treatment is not granted based on an existing imbalance in representation.

Remedies for job applicants who have faced discrimination vary depending on the specifics of each case and the harm experienced. Some common remedies include injunctive relief, requiring the employer to hire the applicant or make a favourable job offer, compensatory damages for economic and non-economic losses, and reimbursement of legal fees and court costs.

Harassment and hostile work environments

Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990. It is defined as unwelcome conduct based on race, colour, religion, sex, sexual orientation, transgender status, pregnancy, national origin, older age (40+), disability, or genetic information.

Harassment becomes unlawful when enduring the offensive conduct becomes a condition of continued employment, or when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. This can include offensive jokes, slurs, epithets or name-calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or a non-employee such as a client.

A hostile work environment is created when an employee experiences unwelcome conduct that is discriminatory based on their protected characteristics. This can include their actual identity or characteristics perceived as belonging to a protected group. The conduct must be pervasive enough to disrupt an employee's ability to do their job, and the employee must reasonably believe that tolerating the harassment is a condition of their continued employment.

Employers should strive to create an environment in which employees feel free to raise concerns about harassment and are confident that those concerns will be addressed. Employees should inform the harasser that the conduct is unwelcome and must stop, and report the harassment to management at an early stage to prevent escalation. Employers are automatically liable for harassment by a supervisor that results in a negative employment action, such as termination, failure to promote or hire, or loss of wages. However, employers can avoid liability if they can prove that they reasonably tried to prevent and correct the harassing behavior, and the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided.

In many United States jurisdictions, a hostile work environment is not an independent legal claim, and an employee must prove that they have been treated in a hostile manner because of their membership in a protected class. However, a hostile work environment can be considered the "adverse employment action" element of a whistleblower or civil rights reprisal claim.

Wage theft and unpaid overtime

Despite the existence of the FLSA, wage theft and unpaid overtime are on the rise. Employers may deny overtime pay unless employees have permission to work extra hours or refuse to pay for time spent on work-related activities, such as putting on safety equipment or checking emails from home. Some bosses also expect people to work more than 40 hours a week but will only pay them for 40 hours, a form of wage theft. Additionally, companies may give workers "comp time" or hours that can be used for vacation or sick time instead of overtime pay, which is only legal for state and local government employees.

To combat wage theft and unpaid overtime, employees can take legal action. The Labor Commissioner's Office can order employers to pay wages and penalties owed to employees and can partner with other law enforcement agencies to criminally prosecute employers. Employees can also sue their employers to recover compensation for lost wages, with a statute of limitations of two years, or three years if the employer is found to have purposely broken the law.

To ensure compliance with wage laws, it is recommended to consult an experienced wage and hour attorney. Additionally, public policy should strengthen government enforcement of employment and labor laws by providing additional resources and new strategies to address the standard practice of workplace violations in low-wage industries.

Wrongful termination

Discrimination in the context of wrongful termination refers to firing an employee based on their race, colour, religion, sex (including transgender status, sexual orientation, and pregnancy), national origin, age (over 40), disability, or genetic information. For example, it is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying based on these protected characteristics. Harassment, which can include offensive or derogatory comments, unwelcome sexual advances, or other verbal or physical conduct, also falls under discrimination if it creates a hostile or offensive work environment or results in adverse employment decisions.

Retaliation as a reason for wrongful termination refers to firing an employee because they engaged in protected activity, such as filing a complaint or reporting illegal conduct, unsafe work practices, or violations of employment laws. Employers are legally barred from discharging "at-will" employees in such circumstances.

Additionally, wrongful termination may occur if an employer fires an employee but does not follow their termination policies or the required progressive discipline steps outlined in employee handbooks.

If you believe you have been wrongfully terminated, it is important to seek legal advice from experienced employment attorneys. You can also file a report with the relevant government organizations, such as the Equal Employment Opportunity Commission (EEOC) or the Occupational Safety and Health Administration (OSHA), depending on the nature of your case.

Retaliation for whistleblowing

Unlawful employment practices can be solved by law, and there are several legal avenues to fight against them. Whistleblowers are protected by law from retaliation. Whistleblowing occurs when an employee reports evidence of wrongdoing or a violation by their employer. Whistleblower laws prohibit employers from retaliating against employees for engaging in protected activities. Retaliation can take many forms, including firing, laying off, demoting, denying overtime or promotion, reducing pay or hours, exclusion from important meetings, reassignment to a less desirable position, or any other adverse action that would dissuade a reasonable employee from raising a concern.

In the United States, the Department of Labor and the Occupational Safety and Health Administration (OSHA) enforce whistleblower protection laws. For example, Section 11(c) of the Occupational Safety and Health Act protects workers who file complaints with OSHA. The Uniformed Services Employment and Reemployment Rights Act (USERRA) also protects service members' reemployment rights and prohibits employer discrimination based on military service or obligation.

Additionally, the Equal Employment Opportunity Commission (EEOC) enforces laws that prohibit employers from discriminating against employees or applicants based on race, color, religion, sex, national origin, age, disability, or genetic information. This includes protection against retaliation for complaining about discrimination, filing a charge of discrimination, or participating in an employment discrimination investigation or lawsuit.

If an individual believes they have been retaliated against for whistleblowing or engaging in protected activities, they may have legal options and should seek legal advice. They can file a retaliation complaint with the relevant government agency, such as the U.S. Office of Special Counsel (OSC) or the Office of Inspector General (OIG) Hotline, depending on their specific situation. These agencies are dedicated to protecting the rights of workers and can provide guidance and support in resolving unlawful employment practices.

Frequently asked questions