Employment Law: Job Discrimination
What Is Job Discrimination?

Job discrimination includes hiring, wage, and promotion decisions based on anything other than a worker's performance, credentials, or skills.

Am I Guilty of Discrimination?

Many employers are guilty of discrimination without being aware of it. Let's explore some cases in which you could inadvertently be guilty of job discrimination.

Surprisingly, discriminatory hiring practices can actually start with the writing of the job description. As an employer, it is vital that you decide what is at the very core of a job and look for an applicant who can do that job. To minimize discrimination against individuals with disabilities, the Americans with Disabilities Act enforces policies to ensure that people are not unfairly disqualified from a job just because they are unable to do some minor tasks listed in a job description. For example, if you are looking to hire a filing clerk but disqualify an applicant because she is deaf and not able to answer the phone, you may be practicing discrimination, especially if answering the phone is routinely someone else's job. If you hire a receptionist but insist on one with full use of both hands in case you need something typed, that is discrimination. Unless your receptionist must be able to type, you cannot unfairly disqualify someone who does not have the use of both hands.

Who Is Affected by Anti-discrimination Laws?

This varies by state. Some states put every business owner with even a single employee on notice that he or she must abide by all anti-discrimination laws. Other states are more lenient and do not require you to follow all the anti-discrimination laws until you have 15 employees. Again, follow the laws of your state.

Federal Laws that Prohibit Job Discrimination:

  • Title VII of the Civil Rights Act of 1964 (Title VII) does not allow employment discrimination based on race, color, religion, sex, or national origin.
  • Equal Pay Act of 1963 (EPA) guarantees equal pay for equal work in the same establishment for both men and women.
  • Age Discrimination in Employment Act of 1967 (ADEA), protects individuals who are 40 years of age or older.

Slavery was abolished by the Civil War; however, it took nearly 100 years for the subsequent and ongoing discrimination to be addressed. The Civil Rights Act of 1964 specifically handles the issue of discrimination in regard to employment as well as public accommodations. Over the years, the act has been amended and updated, and Title VII of that act specifically deals with employment discrimination.

Title VII also created the EEOC. The regulations of the EEOC filter down from the federal government to the state governments and the various local agencies that enforce Title VII by investigating charges, making recommendations, and resolving disputes between employers and their employees.

What Discriminatory Practices Are Prohibited?

It is against the law to discriminate in any way in the following areas of employment:

  • Hiring and firing
  • Pay
  • Job
  • Classification
  • Transfers
  • Promotions
  • Layoffs
  • Job Descriptions/Advertisements
  • Recruitment
  • Training Programs
  • Benefits

Other areas of discrimination include:

  • Harassment in the areas of sex, race, color, age, disability, or national origin.
  • Harassment based on sexual orientation, marital status, political affiliation, or status as a parent.
  • Retaliation against an employee for filing a discrimination charge.
  • Hiring employees based on assumptions of an individual's abilities according to sex, race, age, religion, ethnic origin, or absence of disabilities.
  • Denying employment to people based on marriage to or companionship of people of a certain race, religion, national origin, etc.

Employers must post notices that are easily available to all employees telling them of their rights under the EEOC laws and their right to seek justice without retaliation. The following discrimination categories are more fully detailed to help you as the employer ensure that you do not participate in discriminatory practices at your place of business.

National origin discrimination: It is illegal for any employer to discriminate against an employee or potential employee based on birthplace, ancestry, culture, or language characteristics. Further, it may violate Title VII if you unnecessarily require that all your employees speak English on the job. If you believe that there are times when English only is required, it must be very clear to your employees when speaking English is mandatory and what the consequences are if they violate that rule.

Religious discrimination: You will have to make reasonable accommodations for any employee or prospective employee to practice a particular religious belief, such as time off for religious holidays.

Sex discrimination: Title VII prohibits sexual harassment in the workplace. This covers everything from overt requests for sexual favors to creating a hostile environment for employees of either sex. Protection of pregnant women and their need for time off for childbirth and related medical conditions is also included under this law. Be aware that sexual harassment can include such activities as telling sex-related jokes or jokes that are demeaning to people of a certain gender. You must be on guard even against complimenting an employee's appearance, and you must never require your employees to dress in scanty attire.

Sexual orientation discrimination: So far there are no federal laws that prohibit sexual orientation discrimination; however, about half the states have enacted laws that prohibit such discrimination.

Age discrimination: This is covered by the ADEA, which specifically prohibits specifying age preferences and limitations in job postings. If there is an age requirement that is absolutely necessary for a particular occupation, this may be specified. You may not deny anyone because of age access to training, benefits, raises, or continued employment.

Equal Pay Discrimination: This act prohibits discrimination in terms of salary, pay, or benefits for the same work done by an employee of either sex. If you find that you need to equalize the pay scale for your employees, you may not reduce the wages of one gender in order to match the wages of the other gender.

Disability-based discrimination: This area of discrimination is broad enough that it will be covered in detail in Lesson 10.

Who Can File a Discrimination Charge?

Anyone who believes that his or her employment rights have been violated may file charges with the EEOC. Should the employee be afraid to bring such charges, another person, an organization, or an agency may file charges on that employee's behalf.

Stay Alert for Discrimination Charges

Interested in learning more? Why not take an online Employment Law Fundamentals course?

There are employers who are charged with indirect discrimination that is entirely unintentional. It is wise to review your employment practices annually to ensure that every action you take has a solid business reason behind it.

Should you receive "soft" complaints, be sure to take them seriously. Even a vague complaint can alert you to possible practices that appear to be neutral but actually do affect some employees. By listening to such complaints and taking immediate action, you can head off a possible discrimination charge.

What to Do if Charged with Discrimination

First and foremost, consult a lawyer who is well-versed in employment discrimination law. Secondly, consider any possibility of coming to a settlement prior to going to court. During this phase, all records are sealed and confidential. Once the case reaches court, all benefits of privacy are dissolved.

As with all other laws, employers may not retaliate against an employee who brings a charge of discrimination against that employer.

Americans with Disabilities Act

In 1990, Congress passed the Americans with Disabilities Act (ADA) in order to prevent discrimination against individuals with mental or physical disabilities. Too often, employers have been reluctant to hire an individual with a disability because they believed that such a person would be unable to do the job for them. On rare occasions, this could be the case, but more often people with disabilities were unfairly discriminated against.

Disabilities are often viewed as negative, undesirable characteristics; and the Supreme Court found that this sort of discrimination more often stems from "benign neglect" rather than personal animus. Because of this, the laws had to be changed in order to give people with disabilities a better opportunity to find work if they so desired.

Statistics prove the findings of the Supreme Court. As of the late 1980s, only two-thirds of people with disabilities were working, and most of them found themselves in positions that did not make full use of their training, skills, and abilities. They also were paid less and not promoted as frequently. In 1990, there were more than 8 million Americans with disabilities who wanted to work but were unable to find employment.

What has been discovered is that many individuals with a disability are more than capable of job performance. They may need special accommodation or special equipment in order to perform their jobs, or maybe a mere adjustment in their working conditions.

Determining the nature of the special accommodations, equipment, or working condition adjustment now becomes the responsibility of you, the employer.

The greatest impact of the ADA is evident in the hiring process. As an employer, you must do the following:

  • Create job descriptions that define the core task of the job. In this way, a person with a disability will not be eliminated from your consideration merely because of an inability to do a portion of the job that is not part of the job's core duties.
  • As an employer, you may not include questions in the job application that discuss an individual's possible disabilities.
  • Pre-employment medical exams are allowed only if everyemployee must submit to one. It is better to require medical exams only after you have made an offer of employment.

Businesses that Are Covered by ADA

All federal, state, and local government employers must adhere to the Americans with Disabilities Act regardless of how many employees they have.

All other employers with 15 or more employees working for more than 20 weeks out of the year are expected to comply with the ADA. Part-time employees count as a full person in this count; so if you employ only 15 part-time employees for more than 20 weeks out of the year, you must comply with the ADA.)

Who Is Protected and Who Is Not
Definition of a Disability in Three Parts

A person with a disability is one who:

  • Part I: has a mental or physical impairment that limits a major life activity.
  • Part II: has a record of having such an impairment.
  • Part III: is perceived as having an impairment, even when one does not exist.

Details of the Disability Definition:

In Part I of the disability definition, it is not really enough to have a disability. That disability must limit one or more major life activities. To this end, the courts have established a three-pronged approach to help determine if an individual really does have a disability:

  1. Does the condition formally establish a physical or mental impairment?
  2. Does the impairment impact one or more major life activities?
  3. Does the impairment substantially limit the major life activities identified?

Details of a "Major Life Activity"

For a disability to be considered a true disability, it must affect and impair a major life activity. Such activities include:

  • Walking
  • Talking
  • Breathing
  • Sight
  • Hearing
  • Learning
  • Working
  • Sitting
  • Standing
  • Lifting
  • Reading
  • Performing simple manual tasks
  • Taking care of oneself

Not only must the disability affect one of the above major life activities, but it must also substantially limit the activity. When attempting to determine whether an impairment substantially limits an individual's major life activity, the effect of the person's impairment must be evaluated. The Supreme Court says that you need to look beyond how a disability affects someone's ability to perform job duties and evaluate how much the disability affects that person's ability to perform daily personal chores, such as bathing, brushing one's teeth, and doing simple household chores.

If the disability is easily correctable, then it is not covered under the ADA. Someone who merely needs to wear a pair of glasses or a hearing aid would not be considered disabled under the ADA.

Disabilities really have to be evaluated on a case-by-case basis. Details of "Physical Impairment":

To be included under the category of "physical impairment," the individual's physical condition must substantially impair that person's performance. It cannot merely be a physical condition. For example, having crossed eyes, or being unnaturally short or tall, heavy or thin, strong or weak, are all characteristics of a physical nature but do not make up a physical impairment. Temporary conditions, such as pregnancy or a broken arm do not constitute physical impairments under the disability law.

Conditions that are included as physical impairments include the following:

  • Blindness
  • Deafness
  • Diabetes
  • Crohn's disease
  • Multiple sclerosis
  • Muscular dystrophy
  • Mobility impairments
  • Cerebral palsy
  • Cardiac problems
  • Epstein-Barr virus
  • Chronic fatigue syndrome
  • Polycystic kidney disease
  • Hypothyroidism
  • Certain contagious diseases, such as tuberculosis and HIV.

Details of "Mental Impairment":

A mental impairment is a mental or psychological disorder. This can include mental retardation, organic brain syndrome, emotional or mental illness, and certain learning disabilities. Generally speaking, any mental condition that is recognized by the medical community as constituting a mental impairment will be seen by the courts as a mental impairment. Even severe depression has been included as a mental impairment under the law.

However, in order for the mental impairment to be seen as a disability, it must be established that it substantially limits one or more major life activities.

Conditions that do not constitute physical or mental impairments are:

  • Homosexuality
  • Bisexuality
  • Transvestitism
  • Transsexualism
  • Pedophilia
  • Exhibitionism
  • Voyeurism
  • Gender identity disorders not resulting from physical impairments
  • Other sexual behavior disorders
  • Compulsive gambling
  • Kleptomania
  • Pyromania
  • Psychoactive substance use disorders that result from current abuse of illegal drugs

Be aware that some of the above conditions are protected against discrimination by state law. Check your local statutes.

Conditions that do constitute physical or mental impairments:

  • Rehabilitated drug abusers or those currently going through a rehabilitation program; however, current drug addicts are notprotected.
  • Alcoholics, both rehabilitated and non-rehabilitated, are protected. However, the employer can stipulate that alcohol and illegal drugs are not allowed at the workplace and also may hold such an employee to the same standards of performance as required of any other employee.

Remember, just being a recovering alcoholic or drug addict does not immediately make such an employee disabled. This employee must demonstrate that not only was the addiction real, but there is a substantial limitation of one or more major life activity.

As the employer, you must understand that only a qualified individual with a disability is federally protected from discrimination. A "qualified individual" is an individual who can perform the necessary job for you with or without "reasonable accommodations."

Reasonable Accommodations

All employers who must abide by the ADA regulations must make reasonable accommodations for a disabled employee.

The term "reasonable accommodations" is generally understood to be:

  • modifications or adjustments to the job application process, work environment, or circumstances or situation under which the work is performed;
  • modifications or adjustments that allow your disabled employees to enjoy the same benefits and privileges as all your other employees.

Such modifications or adjustments must not impose undue hardship on the employer. As the employer, you are only required to accommodate the employees who make their disabilities known to you and how you might best accommodate them. You are not required to purchase glasses or hearing aids for employees who have vision or hearing problems. However, other reasonable accommodations will include some of the following:

  • Making your existing workplace and facilities easily accessible to and usable by people with disabilities. This includes work areas, restrooms, lunchrooms, parking spaces, etc.
  • Job restructuring. This might entail changing requirements for non-essential job functions and reassignment of such duties to other people.
  • Development of part-time work schedules or modifying work schedules to meet the essential needs of workers with disabilities.
  • If accommodations cannot be made for a particular job, you may need to reassign the employee to a job or function that allows the employee to fully carry out the duties of his or her job.
  • Modification or adjustment of training materials, policies, and exams.
  • Providing qualified readers or interpreters for blind or deaf employees.

This list is not exhaustive. When a qualified person asks you to make a reasonable accommodation, you should initiate an informal but interactive process with that employee. If you have any doubts about your responsibilities, consult the EEOC or your state or local rehabilitation assistance agencies.

As an employer, you are not required by any law to implement the most expensive accommodations available. You only have to find an effective accommodation. It is quite possible for the employee to still decline the position after you have made the accommodation, but then you have no legal responsibility to hire that person as they may now no longer qualify for the position.

Reasonable accommodation must not put undue hardship on you, the employer. This means that an accommodation is not reasonable if it puts your business in jeopardy by requiring changes that are significantly expensive or difficult to implement.

If you have questions about how you can accommodate disabled employees, consult with Job Accommodation Network (JAN)

It is essential that as an employer you work hard to avoid any miscommunication with a disabled employee. The EEOC often investigates charges of discrimination and finds that a court case could have been averted had both parties worked harder through mediation or informal negotiation to handle the situation.