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Federal Anti Discrimination Laws in the Workplace

In most cases, our California-based employee clients are better  served having Danz & Associates file their lawsuits based on State  of California-recognized causes of action (such as the Department of  Fair Employment and Housing’s anti-discrimination laws). However, there  are times when knowledge of federal rights is important. For example,  we’ve had potential clients contact us who have actually worked in other  states that may not have employee-friendly laws. Secondly, if an  employee has lost their right to file under state causes of action due  to expiration of a previously-issued “right to sue” letter, then it may  be possible to still file under an “open” federal charge. (Its  complicated, but basically the state and federal agencies cross file  with each other and yet a file at the other agency may not be “closed”  automatically). Thirdly, where punitive damages are a possibility, these  are allowed under a lower standard (“reckless indifference to federally  protected civil rights”) in federal court than in state court (“malice,  oppression or fraud” required under California Civil Code 3294).  That  said, here’s a brief overview of federal law. These laws change  periodically and may not be relevant in your case. Always seek legal  advise from an attorney licensed in your jurisdiction and aware of the facts in  your case! We represent California employees state-wide through our ten  offices (Main Office in Los Angeles).  Steve Danz

Federal Equal Employment Opportunity (EEO) Laws

I. What Are the Federal Laws Prohibiting Job Discrimination?

  • Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits  employment discrimination based on race, color, religion, sex, or national  origin;
  • the Equal Pay Act of 1963 (EPA), which protects men and women who perform  substantially equal work in the same establishment from sex-based wage  discrimination;
  • the Age Discrimination in Employment Act of 1967 (ADEA), which protects  individuals who are 40 years of age or older;
  • Title I and Title V of the Americans with Disabilities Act of 1990, as  amended (ADA), which prohibit employment discrimination against qualified  individuals with disabilities in the private sector, and in state and local  governments;
  • Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit  discrimination against qualified individuals with disabilities who work in the  federal government;
  • Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA),  which prohibits employment discrimination based on genetic information about an  applicant, employee, or former employee; and
  • the Civil Rights Act of 1991, which, among other things, provides monetary  damages in cases of intentional employment discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these  laws. EEOC also provides oversight and coordination of all federal equal  employment opportunity regulations, practices, and policies.

Other federal laws, not enforced by EEOC, also prohibit discrimination and  reprisal against federal employees and applicants. The Civil Service Reform Act  of 1978 (CSRA) contains a number of prohibitions, known as prohibited personnel  practices, which are designed to promote overall fairness in federal personnel  actions. 5 U.S.C. 2302. The CSRA prohibits any employee who has authority to  take certain personnel actions from discriminating for or against employees or  applicants for employment on the bases of race, color, national origin,  religion, sex, age or disability. It also provides that certain personnel  actions can not be based on attributes or conduct that do not adversely affect  employee performance, such as marital status and political affiliation. The  Office of Personnel Management (OPM) has interpreted the prohibition of  discrimination based on conduct to include discrimination based on sexual  orientation. The CSRA also prohibits reprisal against federal employees or  applicants for whistle-blowing, or for exercising an appeal, complaint, or  grievance right. The CSRA is enforced by both the Office of Special Counsel  (OSC) and the Merit Systems Protection Board (MSPB).

Additional information about the enforcement of the CSRA may be found on  the OPM web site at http://www.opm.gov/er/address2/guide01.htm;  from OSC at (202) 653-7188 or at http://www.osc.gov/; and from MSPB at (202)  653-6772 or at http://www.mspb.gov/ .

Discriminatory Practices

II. What Discriminatory Practices Are Prohibited by These Laws? Under Title  VII, the ADA, GINA, and the ADEA, it is illegal to discriminate in any aspect of  employment, including:

  • hiring and firing;
  • compensation, assignment, or classification of employees;
  • transfer, promotion, layoff, or recall;
  • job advertisements;
  • recruitment;
  • testing;
  • use of company facilities;
  • training and apprenticeship programs;
  • fringe benefits;
  • pay, retirement plans, and disability leave; or
  • other terms and conditions of employment.

Discriminatory practices under these laws also include:

  • harassment on the basis of race, color, religion, sex, national origin,  disability, genetic information, or age;
  • retaliation against an individual for filing a charge of discrimination,  participating in an investigation, or opposing discriminatory practices;
  • employment decisions based on stereotypes or assumptions about the  abilities, traits, or performance of individuals of a certain sex, race, age,  religion, or ethnic group, or individuals with disabilities, or based on myths  or assumptions about an individual’s genetic information; and
  • denying employment opportunities to a person because of marriage to, or  association with, an individual of a particular race, religion, national origin,  or an individual with a disability. Title VII also prohibits discrimination  because of participation in schools or places of worship associated with a  particular racial, ethnic, or religious group.

Employers are required to post notices to all employees advising them of  their rights under the laws EEOC enforces and their right to be free from  retaliation. Such notices must be accessible, as needed, to persons with visual  or other disabilities that affect reading.

Note: Many states and municipalities also have enacted protections  against discrimination and harassment based on sexual orientation, status as a  parent, marital status and political affiliation. For information, please  contact the EEOC District Office nearest you.

III. What Other Practices Are Discriminatory Under These Laws?

Title VII

Title VII prohibits not only intentional discrimination, but also practices  that have the effect of discriminating against individuals because of their  race, color, national origin, religion, or sex.

National Origin Discrimination

  • It is illegal to discriminate against an individual because of birthplace,  ancestry, culture, or linguistic characteristics common to a specific ethnic  group.
  • A rule requiring that employees speak only English on the job may violate  Title VII unless an employer shows that the requirement is necessary for  conducting business. If the employer believes such a rule is necessary,  employees must be informed when English is required and the consequences for  violating the rule.

The Immigration Reform and Control Act (IRCA) of 1986 requires employers to  assure that employees hired are legally authorized to work in the U.S. However,  an employer who requests employment verification only for individuals of a  particular national origin, or individuals who appear to be or sound foreign,  may violate both Title VII and IRCA; verification must be obtained from all  applicants and employees. Employers who impose citizenship requirements or give  preferences to U.S. citizens in hiring or employment opportunities also may  violate IRCA.

Additional information about IRCA may be obtained from the Office of  Special Counsel for Immigration-Related Unfair Employment Practices at  1-800-255-7688 (voice), 1-800-237-2515 (TTY for employees/applicants) or  1-800-362-2735 (TTY for employers) or at http://www.usdoj.gov/crt/osc.

Religious Accommodation

  • An employer is required to reasonably accommodate the religious belief of an  employee or prospective employee, unless doing so would impose an undue  hardship.

Sex Discrimination

Title VII’s broad prohibitions against sex discrimination specifically  cover:

  • Sexual Harassment – This includes practices ranging from direct requests for  sexual favors to workplace conditions that create a hostile environment for  persons of either gender, including same sex harassment. (The “hostile  environment” standard also applies to harassment on the bases of race, color,  national origin, religion, age, and disability.)
  • Pregnancy Based Discrimination – Pregnancy, childbirth, and related medical  conditions must be treated in the same way as other temporary illnesses or  conditions.

Additional rights are available to parents and others under the Family  and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor.  For information on the FMLA, or to file an FMLA complaint, individuals should  contact the nearest office of the Wage and Hour Division, Employment Standards  Administration, U.S. Department of Labor. The Wage and Hour Division is listed  in most telephone directories under U.S. Government, Department of Labor or at  http://www.dol.gov/esa/public/whd_org.htm.

Age Discrimination in Employment Act

The ADEA’s broad ban against age discrimination also specifically  prohibits:

  • statements or specifications in job notices or advertisements of age  preference and limitations. An age limit may only be specified in the rare  circumstance where age has been proven to be a bona fide occupational  qualification (BFOQ);
  • discrimination on the basis of age by apprenticeship programs, including  joint labor-management apprenticeship programs; and
  • denial of benefits to older employees. An employer may reduce benefits based  on age only if the cost of providing the reduced benefits to older workers is  the same as the cost of providing benefits to younger workers.

Equal Pay Act

The EPA prohibits discrimination on the basis of sex in the payment of wages  or benefits, where men and women perform work of similar skill, effort, and  responsibility for the same employer under similar working conditions.

Note that:

  • Employers may not reduce wages of either sex to equalize pay between men and  women.
  • A violation of the EPA may occur where a different wage was/is paid to a  person who worked in the same job before or after an employee of the opposite  sex.
  • A violation may also occur where a labor union causes the employer to  violate the law.

Titles I and V of the Americans with Disabilities Act, as  amended

The ADA prohibits discrimination on the basis of disability in all employment  practices. It is necessary to understand several important ADA definitions to  know who is protected by the law and what constitutes illegal  discrimination:

Individual with a Disability

An individual with a disability under the ADA is a person who has a physical  or mental impairment that substantially limits one or more major life  activities, has a record of such impairment, or is regarded as having a  disability. An entity subject to the ADA regards someone as having a disability  when it takes an action prohibited by the ADA based on an actual or perceived  impairment, except if the impairment is both transitory (lasting or expected to  last six months or less) and minor. Major life activities are basic activities  that most people in the general population can perform with little or no  difficulty such as walking, breathing, seeing, hearing, speaking, learning,  thinking, and eating. Major life activities also include the operation of a  major bodily function, such as functions of the immune system normal cell  growth, brain, neurological, and endocrine functions.

“Qualified”

An individual with a disability is “qualified” if he or she satisfies skill,  experience, education, and other job-related requirements of the position held  or desired, and who, with or without reasonable accommodation, can perform the  essential functions of that position.

Reasonable Accommodation

Reasonable accommodation may include, but is not limited to, making existing  facilities used by employees readily accessible to and usable by persons with  disabilities; job restructuring; modification of work schedules; providing  additional unpaid leave; reassignment to a vacant position; acquiring or  modifying equipment or devices; adjusting or modifying examinations, training  materials, or policies; and providing qualified readers or interpreters.  Reasonable accommodation may be necessary to apply for a job, to perform job  functions, or to enjoy the benefits and privileges of employment that are  enjoyed by people without disabilities. An employer is not required to lower  production standards to make an accommodation. An employer generally is not  obligated to provide personal use items such as eyeglasses or hearing aids. A  person who only meets the “regarded as” definition of disability is not entitled  to receive a reasonable accommodation.

Undue Hardship

An employer is required to make a reasonable accommodation to a qualified  individual with a disability unless doing so would impose an undue hardship on  the operation of the employer’s business. Undue hardship means an action that  requires significant difficulty or expense when considered in relation to  factors such as a business’ size, financial resources, and the nature and  structure of its operation.

Prohibited Inquiries and Examinations

Before making an offer of employment, an employer may not ask job applicants  about the existence, nature, or severity of a disability. Applicants may be  asked about their ability to perform job functions. A job offer may be  conditioned on the results of a medical examination, but only if the examination  is required for all entering employees in the same job category. Medical  examinations of employees must be job-related and consistent with business  necessity.

Drug and Alcohol Use

Employees and applicants currently engaging in the illegal use of drugs are  not protected by the ADA when an employer acts on the basis of such use. Tests  for illegal use of drugs are not considered medical examinations and, therefore,  are not subject to the ADA’s restrictions on medical examinations. Employers may  hold individuals who are illegally using drugs and individuals with alcoholism  to the same standards of performance as other employees.

The Civil Rights Act of 1991

The Civil Rights Act of 1991 made major changes in the federal laws against  employment discrimination enforced by EEOC. Enacted in part to reverse several  Supreme Court decisions that limited the rights of persons protected by these  laws, the Act also provides additional protections. The Act authorizes  compensatory and punitive damages in cases of intentional discrimination, and  provides for obtaining attorneys’ fees and the possibility of jury trials. It  also directs the EEOC to expand its technical assistance and outreach  activities.

Title II of the Genetic Information Nondiscrimination Act of  2008

GINA prohibits discrimination against applicants, employees, and former  employees on the basis of genetic information. This includes a prohibition on  the use of genetic information in all employment decisions; restrictions on the  ability of employers and other covered entities to request or to acquire genetic  information, with limited exceptions; and a requirement to maintain the  confidentiality of any genetic information acquired, with limited exceptions.

Employers And Other Entities Covered By EEO Laws

IV. Which Employers and Other Entities Are Covered by These Laws?

Title VII, the ADA, and GINA cover all private employers, state and local  governments, and education institutions that employ 15 or more individuals.  These laws also cover private and public employment agencies, labor  organizations, and joint labor management committees controlling apprenticeship  and training.

The ADEA covers all private employers with 20 or more employees, state and  local governments (including school districts), employment agencies and labor  organizations.

The EPA covers all employers who are covered by the Federal Wage and Hour Law  (the Fair Labor Standards Act). Virtually all employers are subject to the  provisions of this Act.

Title VII, the ADEA, GINA, and the EPA also cover the federal government. In  addition, the federal government is covered by Sections 501 and 505 of the  Rehabilitation Act of 1973, as amended, which incorporate the requirements of  the ADA. However, different procedures are used for processing complaints of  federal discrimination. For more information on how to file a complaint of  federal discrimination, contact the EEO office of the federal agency where the  alleged discrimination occurred.

The CSRA (not enforced by EEOC) covers most federal agency employees except  employees of a government corporation, the Federal Bureau of Investigation, the  Central Intelligence Agency, the Defense Intelligence Agency, the National  Security Agency, and as determined by the President, any executive agency or  unit thereof, the principal function of which is the conduct of foreign  intelligence or counterintelligence activities, or the General Accounting  Office.

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