Cecily Zamora
A protected class is a group of people with a shared characteristic who are legally protected from discrimination based on that characteristic. While federal laws define protected classes, state laws also play a role in designating and protecting additional classes. This means that certain groups may be protected from discrimination in one state but not in another. Federal anti-discrimination laws in the United States, such as the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, outline specific characteristics that constitute protected classes, including race, gender, age, disability, national origin, religion, and more. However, states have the power to expand on these protections and prohibit discrimination based on other characteristics. For example, some states may protect employees from discrimination based on marital status or provide additional safeguards for categories like political affiliation or income level, which are not covered by federal law. Understanding what constitutes a protected class is essential for combating discrimination and ensuring equal treatment under the law.
| Characteristics | Values |
|---|---|
| Race | Any race |
| Color | Any color |
| Religion | Any religion |
| Sex | Including pregnancy, sexual orientation, and transgender status |
| National origin | Any national origin |
| Age | 40 or older |
| Disability | Physical or mental disability |
| Genetic information | Including family medical history |
| Citizenship | N/A |
| Marital status | N/A |
| Familial status | Having children |
| Veteran status | N/A |
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Sexual orientation and gender identity
While sexual orientation and gender identity are not explicitly listed as protected characteristics under federal law in the United States, they are often considered protected classes by association with sex as a protected characteristic.
In 2020, the Bostock v. Clayton County case held that "'sex' discrimination" under Title VII of the Civil Rights Act of 1964 includes discrimination based on sexual orientation and gender identity. Title VII prohibits employment discrimination based on race, colour, religion, sex, national origin, age, disability, and genetic information. The Bostock decision and the US Department of Housing and Urban Development's (HUD) new interpretation of "sex" discrimination follow a long line of cases and rules examining discrimination based on sexual orientation, gender identity, and gender expression. For example, in 1989, the Supreme Court ruled in Price Waterhouse v. Hopkins that "'sex' discrimination includes 'non-conformity with traditional gender stereotypes'".
In 2021, HUD issued a memorandum stating that discrimination based on an individual's sexual orientation or gender identity is considered a form of "sex" discrimination prohibited by the Federal Fair Housing Act (FHA). The FHA prohibits discrimination in housing matters "because of" race, colour, religion, national origin, sex, familial status, and disability. HUD's memorandum further stated that it would investigate complaints of discrimination because of gender identity or sexual orientation as types of sex discrimination under the FHA.
While there is no federal law that explicitly prohibits discrimination based on sexual orientation or gender identity, many states and counties have introduced their own legislation to protect members of the LGBTQ+ community. Additionally, some companies have taken the initiative to create their own diversity and equality policies that protect individuals with diverse gender identities or sexual orientations from discrimination. These company policies promote a positive culture and help the company make ethical decisions.
It is worth noting that, while SCOTUS demonstrated that gender identity or sexual orientation discrimination is a specific type of sex discrimination, it did not create an additional protected class. Such an improvement would require congressional action.
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Race, colour, and national origin
Federal law in the United States has, for over 50 years, protected workers from discrimination based on race or colour. The Equal Employment Opportunity (EEO) regulations also protect apprentices from discrimination on the basis of race and colour. Race and colour discrimination may overlap with discrimination based on national origin. The Civil Rights Act of 1964 outlawed segregation in public places and employment discrimination. It also prohibited discrimination and segregation in the public sphere and attempted to prompt the desegregation of schools.
In the United States, federal anti-discrimination laws protect individuals from discrimination or harassment based on nine protected classes: sex (including sexual orientation and gender identity), race/colour, age, disability, national origin, religion/creed, or genetic information. Additionally, state laws can also define protected classes. For example, marital status is not a protected class under federal law, but it is under some state laws and employer policies.
It is important to note that not all groups or characteristics are protected under anti-discrimination laws. For example, people with a criminal history are not considered a protected class, but many states have rules about whether and when an employer can consider a candidate's criminal record.
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Age and disability
Age
In the context of employment, age discrimination typically applies to individuals over the age of 40. Federal laws and the U.S. Equal Employment Opportunity Commission (EEOC) protect applicants, employees, and former employees from discrimination based on age. These protections extend to areas such as hiring, promotion, termination, compensation, and various terms and conditions of employment.
Disability
Disability entered the list of protected classes in 1973 with the Rehabilitation Act, which prohibited discrimination based on disability in federal employment. The Americans with Disabilities Act (ADA), enacted in 1990, extended similar protections to the private sector. The ADA has since been amended to broaden its scope, and it now covers a wide range of disabilities, including physical, sensory, and mental impairments.
Both federal and state laws prohibit disability discrimination in employment, housing, education, credit, and access to public accommodations. Employers are required to provide reasonable accommodations to employees with disabilities to help them perform their job functions properly. This may include offering extended leave or modifying work schedules to accommodate an individual's specific needs.
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Religion and creed
In the United States, federal law protects individuals from discrimination or harassment based on certain protected characteristics or "classes". These include sex (including sexual orientation and gender identity), race/colour, age, disability, national origin, religion/creed, and genetic information. While the term "protected class" is often used in the context of employment discrimination, it can also apply to other areas, such as housing.
Creed refers to a set of moral or ethical beliefs and the practices and observances associated with those beliefs. This includes traditional religious beliefs as well as belief systems that may not be associated with an organised religious group. For instance, veganism could be considered a creed, although it is not recognised as a religious belief. The interpretation of "creed" in the legal context is still evolving, and employers should exercise caution to avoid discrimination based on an individual's expressed beliefs.
While federal law sets a baseline for protected classes, individual states can also create additional protected classes under state law. For example, states like Colorado, New Jersey, New York, Washington, Wisconsin, and Wyoming have extended protections against discrimination to include "creed". These state laws apply to employers operating within those states, even if the company does not have a physical presence there. By prohibiting discrimination based on religion and creed, these laws ensure that individuals are protected from adverse employment decisions or housing discrimination due to their religious or moral beliefs.
It is worth noting that not all groups or characteristics are protected under anti-discrimination laws. For instance, criminal history is generally not considered a protected class, but some states have enacted laws restricting when and how employers can consider an applicant's criminal record. Additionally, undocumented status is not a protected class, and it is illegal for employers to knowingly employ individuals unauthorised to work in the US.
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Genetic information
Despite these protections, genetic privacy remains a complex issue. The digitization and high demand for genetic data have made it difficult to protect the privacy of this information. While some laws limit how genetic information can be used, critics argue that none truly protect privacy. Genetic information is unique to each individual and cannot be de-identified, meaning that even without obvious identifiers, it is still linked to a specific person.
The growth of the direct-to-consumer (DTC) genetic testing industry has resulted in vast databases of consumers' genetic information, raising serious privacy concerns. While many companies have privacy and informed consent policies in place, no federal laws prohibit them from providing individuals' genetic information to third parties. The Federal Trade Commission provides some protections and can take action against companies that make false or misleading statements about data privacy and security or fail to protect individuals' information.
In addition to GINA, the Health Insurance Portability and Accountability Act (HIPAA) protects patient privacy by restricting the sharing of medical information, including genetic data. However, there are concerns about the effectiveness of these laws in protecting genetic privacy, especially in the context of reproductive genetic testing, human subjects research, and state statutes.
Some states have enacted their own genomic privacy laws, which provide additional protections for genetic information. These laws vary, with some prohibiting the unauthorized acquisition or analysis of genetic information, while others prohibit only unauthorized disclosure. The specific enforcement of these laws also differs between states.
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Frequently asked questions
A protected class is a group of people with a common characteristic who are legally protected from discrimination based on that characteristic.
Protected classes can include race, colour, religion, sex (including gender, sexual orientation, and gender identity), national origin, age, disability, and genetic information.
Protected classes are designated by federal, state, and local laws. While federal laws protect certain "immutable characteristics," other attributes like political affiliation, physical appearance, and income level are not considered protected classes. States and local jurisdictions may offer additional safeguards for these categories.
Federal law prohibits blatant discrimination against protected classes, but it does not prevent employers from considering a person's membership in certain circumstances. For example, an employer may consider a person's gender if the job is for a bathroom attendant in a gender-segregated facility.
