Employment discrimination law in the United States

In the United States, employment discrimination is prohibited by a collection of state and federal laws, as well as by ordinances of counties and municipalities.

Protected categories

Under Federal law, employers cannot discriminate against employees on the basis of:
* Race
* Sex
* Pregnancy
* Religion
* National origin
* Disability (physical or mental)
* Age
* Anticipated deployment with the Reserves or National Guard

There are some states and cities that, in addition to the categories above, also forbid discrimination on the basis of:
* Sexual orientation
* Gender identity
* Marital status
* Genetic disorders [N.Y. Civil Rights Law section 48-a]
* Familial status
* Medical condition
* Political affiliation
* Military discharge status

Unintentional discrimination

Employment discrimination laws prohibit intentional discrimination, as well as neutral practices that inadvertently produce a disparate impact on individuals of a particular race or sex, unless there are bona-fide occupational qualifications (BFOQ) that justify such discrimination. Such practices include the use of standardized tests (which may harm minority applicants) or height (which may harm women) in the hiring process, unless these characteristics are required by the position. However, when defending against a disparate impact claim that alleges age discrimination, an employer does not need to demonstrate necessity; rather, it must simply show that its practice is reasonable.

Constitutional basis

The United States Constitution and some state constitutions provide additional protection where the employer is a governmental body or the government has taken significant steps to foster the discriminatory practice of the employer.

The Fifth Amendment to the United States Constitution and Fourteenth Amendment to the United States Constitution Amendments of the United States Constitution limit the power of the federal and state governments to discriminate. The Fifth amendment has an explicit requirement that the federal government not deprive individuals of "life, liberty, or property", without due process of the law. It also contains an implicit guarantee that that the Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. In the employment context, the right of equal protection limits the power of the state and federal governments to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group (such as a race or sex). Due process protection requires that government employees have a fair procedural process before they are terminated if the termination is related to a "liberty" (such as the right to free speech) or property interest.

It should be note that both Due Process and Equal Protection Clauses are passive. The real clause empowers Congress to pass anti-discrimination bills (so they are not unconstitutional under Tenth Amendment) is Section 5 of Fourteenth Amendment.

State constitutions may also afford protection from employment discrimination, such as Article I of the California Constitution.

Federal laws

Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state law.

The Equal Pay Act amended the Fair Labor Standards Act in 1963. The Equal Pay Act prohibits employers and unions from paying different wages based on sex. It does not prohibit other discriminatory practices in hiring. It provides that where workers perform equal work in jobs requiring "equal skill, effort, and responsibility and performed under similar working conditions," they should be provided equal pay. The Fair Labor Standards Act applies to employers engaged in some aspect of interstate commerce, or all of an employer's workers if the enterprise is engaged as a whole in a significant amount of interstate commerce.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in many more aspects of the employment relationship. It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. Title VII prohibits discrimination based on race, color, religion, sex or national origin. It makes it illegal for employers to discriminate based upon protected characteristics regarding terms, conditions, and privileges of employment. Employment agencies may not discriminate when hiring or referring applicants, and Labor organizations are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin. The Pregnancy Discrimination Act amended Title VII in 1978, specifying that unlawful sex discrimination includes discrimination based on pregnancy, childbirth, and related medical conditions.A related statute, the Family and Medical Leave Act, sets requirements governing leave for pregnancy andpregnancy-related conditions.

The Nineteenth Century Civil Rights Acts, amended in 1993, ensure all persons equal rights under the law and outline the damages available to complainants in actions brought under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the 1973 Rehabilitation Act.

The Age Discrimination in Employment Act (ADEA), enacted in 1968 and amended in 1978 and 1986, prohibits employers from discriminating on the basis of age. The prohibited practices are nearly identical to those outlined in Title VII, except that the ADEA protects workers in firms with 20 or more workers rather than 15 or more. An employee is protected from discrimination based on age if he or she is over 40. Since 1978, the ADEA has phased out and prohibited mandatory retirement, except for high-powered decision-making positions (that also provide large pensions). The ADEA contains explicit guidelines for benefit, pension and retirement plans.

The Rehabilitation Act's purpose is to "promote and expand employment opportunities in the public and private sectors for handicapped individuals," through the elimination of discrimination and affirmative action programs. Employers covered by the act include agencies of the federal government and employers receiving federal contracts over $2500 or federal financial assistance. The U.S. Department of Labor enforces Section 793 of the act which refers to employment under federal contracts. The U.S. Department of Justice enforces Section 794 of the act which refers to organizations receiving federal assistance. The Equal Employment Opportunity Commission (EEOC) enforces Section 501 ofo the Act, which refers to employment of individuals with disabilities in federal agencies. Under Section 504, individual federal agencies promulgate regulation pertaining to full participation of individuals with disabilities in their programs. Section 508 of the Rehabilitation Act requires that all information and electronic technology used by Federal agencies be accessibile to individuals with disabilities.

The Americans with Disabilities Act (ADA) was enacted to eliminate discriminatory barriers against qualified individuals with disabilities, individuals with a record of a disability, or individuals who are regarded as having a disability. It prohibits discrimination based on a physical or mental handicap and requires employers to make reasonable accommodations for disabled workers. The type of discrimination prohibited is broader than that explicitly outlined by Title VII. The ADA also places an affirmative requirement on employers to reasonably accommodate a disabled employee in the performance of his or her job unless the employer can show that "undue hardship" will result. A qualified individual with a disability is a person who is "substantially limited" in one or more major life activities.

The Black Lung Act prohibits discrimination by mine operators against miners who suffer from "black lung disease" (pneumoconiosis).

The proposed Employment Non-Discrimination Act would ban discrimination on the basis of sexual orientation or gender identity.

tate law

State statutes also provide extensive protection from employment discrimination. Some laws extend similar protection as provided by the federal acts to employers who are not covered by those statutes. Other statutes provide protection to groups not covered by the federal acts. A number of state statutes provide protection for individuals who are performing civil or family duties outside of their normal employment.

California

*The California Fair Employment and Housing Act (FEHA) was written to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.
*Government Codes §§11135-11139 prohibit unlawfully denied benefits or discriminating based on ethnic group identification, religion, age, sex, color, or physical or mental disability by employers that undertake programs or activities that are funded directly by the state, and employers that receive any financial assistance from the state.

Michigan

*Unique to Michigan, in addition to prohibiting discrimination on the basis of race, creed, color, marital status, sex and age, the Elliot-Larsen Civil Rights Act also prohibits weight and height discrimination. [http://www.michigan.gov/documents/act_453_elliott_larsen_8772_7.pdf] , [http://www.mcc.edu/hr/hr_emplaws_civilrght.shtml]

New Jersey

*New Jersey has its own statute known as the New Jersey Law Against Discrimination. The New Jersey Law Against Discrimination (LAD) makes it unlawful to subject people to differential treatment based on race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status. The LAD prohibits unlawful discrimination in employment, housing, places of public accommodation, credit and business contracts. Not all of the foregoing prohibited bases for discrimination are protected in all of these areas of activity. [http://www.candmlegal.com/ "Castronovo & McKinney, LLC"] can provide additional assistance regarding representation of individuals who were discriminated against by an employer.

New York

*New York prohibits discrimination "because of race, creed, color, national origin, sex, marital status, sexual orientation or disability...." [N.Y. Civil Rights L. § 40-c (2), found at [http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS New York assembly website] , under CVR - Civil Rights. Retrieved October 6, 2008.]

Enforcing entities

The Equal Employment Opportunity Commission (EEOC) interprets and enforces the Equal Pay Act, Age Discrimination in Employment Act, Title VII, Americans With Disabilities Act, and sections of the Rehabilitation Act. The Commission was established by Title VII. Its enforcement provisions are contained in section 2000e-5 of Title 42, and its regulations and guidelines are contained in Title 29 of the Code of Federal Regulations, part 1614. Persons wishing to file suit under Title VII and/or the ADA must also exhaust their administrative remedies by filing an administrative complaint with the EEOC prior to filing their lawsuit in court.

State Fair Employment Practices (FEP) offices take the role of the EEOC in administering state statutes.

References

External links

* [http://www.eeocoffice.com Directory of federal and state anti-discrimination agencies]