It is illegal under U.S. federal law to discriminate against an employee, either intentionally or through a disparate impact, on account of his or her race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age (40 or older), disability or genetic information. It is also illegal to harass an employee on account of these protected characteristics or to retaliate against an employee because he or she complained about discrimination, filed a charge of discrimination, or participated in an investigation or lawsuit concerning employment discrimination. Most employers with at least 15 employees are covered by this body of federal law, as are most labour unions and employment agencies.
Extent of Protection
Title VII and Title II of the Civil Rights Act of 1964: Title VII prohibits discrimination against employees and applicants on the basis of race, color, sex (including pregnancy, sexual orientation and gender identity), national origin, and religion. Title VII and other federal discrimination laws also protect employees from retaliation for complaining of discrimination, filing a charge, or assisting in an investigation of discrimination.
Age Discrimination in Employment Act (“ADEA”): The ADEA prohibits employment discrimination against people 40 years of age and older.
Americans with Disabilities Act (“ADA”): The ADA is a federal law prohibiting discrimination against individuals (employees, applicants, and guests) with a disability and requires the provision of a reasonable accommodation to someone who is legally disabled. The ADA Amendments Act of 2008, which expressly overturned several landmark Supreme Court decisions narrowly interpreting the definition of “disability,” significantly expanded the protections afforded to disabled individuals. As a result, many more health conditions are now considered “disabilities” under the ADA, for which reasonable accommodation may be required.
Equal Pay Act (“EPA”): The Equal Pay Act is an amendment to the Fair Labour Standards Act that prohibits paying different wages to employees of different sexes who perform equal work under similar conditions.
Pregnancy Discrimination Act (“PDA”): The PDA is an amendment to Title VII that prohibits discrimination against an employee because of pregnancy.
Genetic Information Non-Discrimination Act (“GINA”): GINA prohibits employers from discriminating against employees because of an employee’s “genetic information.” The law also prohibits employers from requesting, requiring or purchasing genetic information of an employee, subject to a small number of limited exceptions. Under GINA, “genetic information” means information about the “genetic tests” of an individual or his family members, and information about the manifestation of a disease or disorder in family members of such individual. Medical tests such as blood counts, cholesterol screenings, or liver function tests are not “genetic tests.”
The Immigration and Nationality Act (“INA”): The INA prohibits any employment discrimination based on citizenship or nationality status. The citizenship provisions protect U.S. citizens, U.S. nationals, asylees, refugees and recent U.S. permanent residents. Among other things, the law also prohibits unfair document practices. Employers are not allowed to request or require more or different documents than required by law to verify employment eligibility.
State Laws: State laws only apply to the states in which they are enacted. Many states have passed laws that prohibit discrimination. Often these laws mirror federal statutes. However, in some cases these laws provide additional or increased protections not required by federal laws, such as prohibiting discrimination based on marital status or sexual orientation. In states with more expansive employee protections, state law will often predominate as a basis for employment law claims.
Protections Against Harassment
Harassment is included in the prohibitions on discrimination under Title VII, the ADEA and the ADA. Harassment is described as unwelcome conduct that, based on one or more of these protected characteristics, a “reasonable person” would consider “intimidating, hostile, or abusive” (EEOC website). It is also illegal to harass individuals in retaliation for engaging in protected conduct, such as filing a discrimination charge or participating in an investigation of alleged discriminatory conduct. In general, the person engaging in harassing conduct does not need to be the victim’s supervisor and can be any agent of the employer, a co-worker, or a non-employee. However, the employer will only be liable for harassment by a non-supervisory employee or non-employee if it has control over the harasser and it knew, or should have known, about the harassment and failed to take prompt and appropriate corrective action.
Employer’s Obligation to Provide Reasonable Accommodations
The ADA defines “discrimination” as including the failure to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of an employer’s size, financial resources, and the needs of the business. If more than one accommodation is effective, the employer may choose which one to provide and need not provide the accommodation requested by the employee.
Some examples of a reasonable accommodation include part-time or modified work schedules and job restructuring. The EEOC’s Enforcement Guidance also provides that unpaid leave is a form of reasonable accommodation when necessitated by an employee’s disability. Also, because an employer’s reasonable accommodation obligations continue as long as an employee is disabled, the obligation to provide job-protected leave under the ADA may require that employers provide job-protected leave for periods beyond that required by other federal or applicable state law.The EEOC has also taken the position that employers must accommodate an employee’s reasonable request for modification of dress and uniform policies on sincerely held religious beliefs, unless there is an undue hardship. For this purpose, “undue burden” is easier for employers to prove than under the ADA, though still substantial.
During the COVID-19 pandemic, if an employee provides notice that they are unable to come to work because they fall in a vulnerable population category, the employer may be obligated to provide a reasonable accommodation, particularly if the request is due to a medical condition or is pregnancy-based. Employers should consider whether these employees can work remotely and/or whether another accommodation is available. These employees may be eligible for paid sick leave under various laws, including the FFCRA. Importantly, an employer may not compel an employee to stay home simply because he or she falls into a “vulnerable population” category; doing so may result in a violation of the Age Discrimination Employment Act (ADEA), ADA and/or Pregnancy Discrimination Act (PDA). The EEOC’s Technical Guidance provides that an employer is not allowed to exclude an employee from the workplace “solely” because the employee has a disability that the CDC identifies as potentially placing him at ‘higher risk for severe illness’ if he gets COVID-19.
Employees who believe they have been unfairly discriminated against may seek redress in various federal, state and local administrative agencies, and the U.S. federal and state courts. Individuals who assert federal discrimination claims (and some state claims) must first file a charge of discrimination with the federal EEOC or the relevant local agency before bringing a lawsuit against the employer in court. In the federal system, the agency will then investigate and determine whether or not there is reasonable cause to believe that discrimination occurred. If the agency finds that there is reasonable cause, it will attempt to reach a voluntary settlement with the employer. In some cases, the agency will file a lawsuit in federal court on the employee’s behalf. The employee can only sue the employer in court if the agency does not find reasonable cause or cannot obtain recovery for the individual.
In the U.S., if the court finds that a termination was the result of unlawful discrimination, the employee may be entitled to reinstatement (rarely granted), monetary damages and attorneys’ fees. Monetary damages include compensation for wages and benefits lost as a result of the termination, and, in some cases, for emotional or physical distress suffered as a result of the employer’s actions. In cases involving an egregious violation of the law, the employer may be liable for punitive damages. Federal law imposes caps on compensatory and punitive damages; many states do not.
In general, federal and state anti-discrimination laws prohibit racially-motivated employment decisions, even if the employer’s goal is to promote diversity. However, in extraordinarily limited instances where neutral measures have failed, the Supreme Court and EEOC have authorised race/gender-conscious programs and employment selection decisions – provided such actions are taken pursuant to a compliant Voluntary Affirmative Action Plan.
Some exceptions also exist with respect to companies that do business with the U.S. federal government. Specifically, government contractors must comply with additional equal employment opportunity rules and regulations, including: (1) Executive Order 11246, as amended, which applies to minorities and women; (2) Section 503 of the Vocational Rehabilitation Act of 1973, which applies to individuals with disabilities; and (3) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, which applies to certain groups of protected veterans, including veterans with disabilities and recently separated veterans. These obligations are enforced by the Department of Labour’s Office of Federal Contract Compliance Programs.