Gavin Howe
Discrimination laws are an essential aspect of ensuring a safe and inclusive workplace, and businesses need to be aware of their legal responsibilities to prevent discrimination and its consequences. Workplace discrimination occurs when an employee is treated unfavourably based on characteristics such as race, colour, religion, national origin, sexual orientation, gender identity, disability, age, and genetic information. These characteristics are protected by federal anti-discrimination laws, and businesses must understand how these laws apply to them to create a respectful workplace. The laws that apply depend on factors such as the number of employees and the location of the business.
What You'll Learn
Equal pay for equal work
Discrimination laws apply to businesses of all sizes, even if they only have one employee. The laws that apply depend on the number of employees a business has.
The Equal Pay Act of 1963 (EPA) requires employers to pay men and women the same wages for performing the same jobs. The EPA is part of the Fair Labor Standards Act of 1938, which also requires employers to comply with minimum wage, overtime pay, record-keeping, and youth employment standards and requirements. The EPA covers all forms of compensation, including salary, overtime pay, bonuses, stock options, profit-sharing, and bonus plans, life insurance, vacation and holiday pay, allowances, reimbursements, and benefits.
The jobs in question need not be identical, but they must be substantially equal. Job content, not job titles, determines whether jobs are substantially equal. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay. Instead, they must raise wages to equalize pay.
An employer may justify a pay difference under the law if the difference is based on a seniority system, merit system, or any factor other than sex.
Application by Number of Employees
If a business has at least one employee, it is covered by the law that requires employers to provide equal pay for equal work to male and female employees. If a business has 15-19 employees, it is also covered by laws that prohibit discrimination based on race, colour, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, and genetic information (including family medical history).
Businesses with 20 or more employees are subject to the above laws and additional laws that prohibit discrimination based on age (40 or older).
Reporting Violations
Individuals who believe they have an equal pay claim should contact an Equal Employment Opportunity (EEO) counsellor within 45 days of the event or action they believe is discriminatory. Under the Lilly Ledbetter Fair Pay Act of 2009, the 45-day requirement is renewed each time an individual is allegedly paid wages, benefits, or other compensation less than someone from another protected class performing substantially similar duties.
Individuals can file an EPA suit in federal district court without exhausting internal administrative remedies. The time limit for filing an EPA case in court is two years from the day the last discriminatory paycheck was received or, in the case of a willful violation, within three years.
Any individual who files an equal pay claim or assists another individual in filing a claim is protected against unlawful retaliation by their employer. This protection extends to unlawful retaliation by an employer against an individual for opposing employment practices that allegedly discriminate based on compensation or for filing a discrimination complaint, testifying, or participating in any way in an investigation, proceeding, or litigation under the EPA.
Other Types of Discrimination
In addition to the EPA, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) prohibit compensation discrimination on the basis of race, colour, religion, sex, national origin, age, or disability. Unlike the EPA, there is no requirement under Title VII, the ADEA, or the ADA that the jobs in question must be substantially equal.
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Discrimination based on race, colour, religion, sex, national origin, disability, and genetic information
Discrimination against employees or applicants based on their race, colour, religion, sex, national origin, disability, or genetic information is illegal. This includes treating someone unfavourably because of their personal characteristics associated with race, such as hair texture, skin colour, or facial features. Discrimination on the basis of colour involves treating someone unfavourably because of their skin complexion. National origin discrimination involves treating people unfavourably because of their ethnicity, accent, or because they appear to be of a certain ethnic background. Sex discrimination involves treating someone unfavourably because of their gender identity, sexual orientation, or pregnancy.
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. It is also illegal to use neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, colour, religion, sex, national origin, or disability.
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits genetic information discrimination in employment. Under GINA, it is illegal to discriminate against employees or applicants because of their genetic information, and employers are restricted from requesting or requiring genetic information.
There are five important federal laws that protect individuals with disabilities from discrimination in employment and the job application process: the Americans with Disabilities Act, the Workforce Innovation and Opportunity Act, the Vietnam Era Veterans' Readjustment Assistance Act, and the Civil Service Reform Act. The Rehabilitation Act also includes three sections that prohibit discrimination against individuals with disabilities by specific types of employers.
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Discrimination based on age
Discrimination against employees or applicants based on age is illegal. The Age Discrimination in Employment Act of 1967 (ADEA) protects employees and certain applicants aged 40 or older from age discrimination in the workplace. The ADEA applies to employers with 20 or more employees, labour organisations with more than 25 members, employment agencies, and federal, state, and local governments.
Under the ADEA, it is illegal to discriminate against someone (applicant or employee) because of their age (40 or older). This includes all aspects of employment, such as hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment. It is also illegal to use employment policies or practices that negatively affect applicants or employees who are 40 or older unless based on a reasonable factor other than age.
For example, an employer may not refuse to hire someone because of their age or use a test that excludes applicants aged 40 or older unless the test is based on a reasonable factor other than age. Similarly, when deciding which employees will be laid off, an employer may not choose the oldest workers because of their age.
Age discrimination can have detrimental effects on a business. It can damage positive and efficient working relationships and cause legal liability. It can also lead to a loss of experience and potential, as older employees may have extensive knowledge and skills that benefit the business. Additionally, age discrimination can create a negative work environment and poor perceptions of company management, leading to decreased productivity and employee morale.
It is important to note that each state or jurisdiction may have its own laws and restrictions on what is deemed discriminatory, so it is crucial to familiarise yourself with the applicable laws and guidelines.
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Discrimination based on citizenship or national origin
Discrimination against employees or applicants based on their citizenship or national origin is illegal. This type of discrimination can occur when people are treated unfavourably because they are from a particular country, part of the world, or ethnic background. It can also occur when individuals are discriminated against because of their association with someone of a certain national origin.
The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for employers to discriminate based on citizenship or national origin in hiring, firing, or recruitment. It is also unlawful for employers to knowingly hire or recruit workers who are not authorised to work in the country. IRCA prohibits employers from hiring only US citizens or lawful permanent residents unless required to do so by law, regulation, or government contract. Employers may not refuse to accept lawful documentation that establishes an employee's eligibility or demand additional documents beyond what is legally required when verifying employment eligibility.
Additionally, employers may not require employees to be fluent in English unless fluency is necessary for performing the job effectively. An "English-only rule" may be permitted if it is needed to ensure the safe and efficient operation of the business and is implemented for nondiscriminatory reasons. Employers may not base employment decisions on an employee's foreign accent unless it seriously interferes with their job performance.
It is important to note that anti-discrimination laws may vary by state or jurisdiction, so it is crucial to familiarise yourself with the specific laws and guidelines applicable to your location.
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Discrimination based on sexual orientation or gender identity
Discrimination against someone's sexual orientation or gender identity is illegal. Sexual orientation and gender identity (SOGI) discrimination is prohibited by federal anti-discrimination laws and Title VII of the Civil Rights Act of 1964.
SOGI discrimination is forbidden in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment. For example, it is illegal to deny an employee access to a bathroom, locker room, or shower that does not correspond to their gender identity. Prohibiting a transgender person from dressing or presenting themselves consistently with their gender identity would also constitute sex discrimination.
It is also unlawful to subject an employee to workplace harassment that creates a hostile work environment based on their sexual orientation or gender identity. Harassment can include offensive or derogatory remarks about sexual orientation or transgender status. While simple teasing, offhand comments, or isolated incidents that are not very serious are not prohibited, harassment is unlawful when it is frequent and severe, creating a hostile work environment or resulting in an adverse employment decision, such as firing or demoting the victim.
Additionally, employers covered by Title VII are not allowed to refuse to hire or fire someone because customers or clients prefer to work with people of a different sexual orientation or gender identity. It is also illegal for employers to segregate employees based on actual or perceived customer preferences, such as keeping LGBTQ+ employees out of public-facing positions.
It is important to note that state or local fair employment laws may also prohibit discrimination based on sexual orientation or transgender status, and employers should familiarize themselves with the specific laws and guidelines applicable to their location.
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Frequently asked questions
Workplace discrimination occurs when an employee or job applicant is treated unfavourably based on a protected characteristic. Protected characteristics include race, colour, religion, national origin, sexual orientation, gender identity, disability, age and genetic information.
Workplace discrimination can be obvious or subtle. It can occur during hiring, employment or termination. Examples include denying preferred shifts, disparate discipline, rescission or denial of responsibilities, and failure to hire or promote.
Several anti-discrimination laws govern how businesses can treat employees and job applicants. These include the Age Discrimination in Employment Act of 1967 (ADEA), the Americans with Disabilities Act of 1990 (ADA), the Equal Pay Act of 1963 (EPA), the Family Medical Leave Act (FMLA), the Pregnancy Discrimination Act of 1978 (PDA), the Genetic Information Nondiscrimination Act of 2008 (GINA), and Title VII of the Civil Rights Act of 1964 (Title VII).
If an employee experiences discrimination, the employer may face legal consequences, negative publicity, loss of employee morale, and damage to their reputation and standing within the community.
Businesses can prevent workplace discrimination by implementing anti-discrimination policies and providing education and training to employees. It is also important for businesses to foster an open culture that encourages employees to report any issues and address any concerns in a timely and professional manner.
