According to the Equal Employment Opportunity Commission, in 2019, one-third of cases concerned racial discrimination. Another third related to disability and the last third involved gender in some way. Employment discrimination cases do not necessarily disadvantage the individual because of one characteristic in isolation; often they overlap.
As it is stated in the American Disability Act, these characteristics do not necessarily have to impact the employee themselves. For example, an employee who is a caregiver of a disabled relative can rely on disability discrimination protections in the workplace, even though it is not the employee themselves who is disabled.
Who is entitled to protection?
First and foremost, the person must be an employee of the business. This includes full-time, part-time, and seasonal workers, as well as those working on a temporary basis. Under certain situations, even volunteers can be covered. Before filing a complaint, the person should check whether they are entitled to be protected. Those who are not citizens, including undocumented workers, are also protected by employment discrimination law.
Finally, the business the person works for must have 15 or more employees and should have run for a minimum of 20 calendar weeks in the previous year.
Who can help?
The leading body that can help the victim against employment discrimination is the Equal Employment Opportunity Commission (the EEOC). This is a federal agency, established by the Civil Rights Act 1964 (Title VII) which is tasked with enforcing anti-discrimination law which prohibits discrimination in the workplace. EEOC is responsible for investigating employment discrimination cases, as well as attempting to settle them. This could vary from mediation to filing a lawsuit on behalf of an employee.
The Commission also operates outreach programs across the country which pre-emptively educates about and prevents employment discrimination occurrences before any lawsuits.
The EEOC, as well as employment discrimination law, also protects those who ‘assert their rights to be free from employment discrimination. This means that employers are prohibited from retaliating against those who have filed complaints.
What laws operate?
A plethora of anti-discrimination laws are enforced by the EEOC to eradicate all forms of employment discrimination. These laws correlate to the characteristics, listed above, that are protected by employment discrimination law. The discrimination victim has a claim if their situation falls under any of the categories of employment discrimination. These laws also protect the employee from retaliation during and after the proceedings.
- Equal Pay Act 1963 – fights gender discrimination in the workplace and states that men and women must have the same wage for the same job.
- Age Discrimination in Employment Act 1967 – this law only protects employees aged 40 or over, only in the workplace with 20 or more workers
- Pregnancy Discrimination Act 1978 – this encompasses pregnancy rights at work and ensures that women who are pregnant, have medical conditions (including the child), or have had childbirth are not disadvantaged because of their situation.
- Civil Rights Act 1964 – this revolutionary act enforces employment equality no matter your race, color, religion, sex, or national origin.
- American Disability Act – it is illegal to discriminate against an individual because of their mental or physical disabilities. Instead, employers have a duty to make reasonable adjustments to ensure that the individual’s disability does not unnecessarily hinder them. This law applies to all private companies as well as the state and local governments.
- Rehabilitation Act 1973 – an employer cannot discriminate against an individual with a disability within the federal government
- GINA 1974 – this prevents discrimination due to adverse genetic information. This may include test results (of the individual or their family), disease, disorder, or any other genetic condition.
An employee who thinks that he or she is being discriminated against should look for signs to categorize the discrimination by the laws listed above. Every employee, even not personally victimized, who notices employment discrimination taking place, has a duty to alert the EEOC on behalf of the victim.
As mentioned above, age discrimination is governed by the Age Discrimination in Employment Act (ADEA), which protects workers at the age of 40 or older. Therefore, if both employees are over 40, it is not illegal to favor one over another.
The employer’s illegal behavior under ADEA includes age preferences in any advertisements unless age is one of Bona Fide Occupational Qualifications (BFOQ). A situation where age is relevant to the normal operation of businesses falls under BFOQ. Although aimed at younger generations, apprenticeship programs are similarly prohibited from having age requirements.
As an employer, you are entitled to ask about birth date or age, but you should be aware of possible consequences, primarily deterring older workers due to fear of later discrimination in the workplace. The best idea is to wait until you have decided to hire the employee.
Older employees typically receive more benefits than younger ones and this extra cost may disadvantage them in the eyes of an employer. According to the Older Workers Benefit Protection Act 1990, you cannot refuse to award these benefits to entitled employees. However, under certain circumstances, you may be able to legally reduce the cost of benefits.
It is possible to waive claims or rights, but the requirements associated are stringent. To make a waiver valid it must be: in writing, specifically referring to current ADEA rights, in exchange for something else, and after the individual has received advice to talk to an attorney. Furthermore, to ensure there is no age discrimination, there must be enough time before signing the waiver so that the individual can fully consider the consequences. The time stated is 21 days for individuals, 45 days for groups, and a (specific) ‘reasonable’ time for settlements.
Though slightly less relevant, the Age Discrimination Act 1975 prohibits discrimination occurring at any age in ‘programs receiving financial assistance. This Act is enforced by the Civil Rights Centre. They also enforce the Workforce Investment Act 1998, which protects multiple characteristics including age.
It may seem as if we have been trying to fight gender inequality for centuries, but it does not seem to be going away. Data from the EEOC does show a general decrease in the number of charges. For example, in 2019, there were 23,532 charges filed, which is slightly lower than the 24,655 charges in 2018 and 25,605 in 2017. However, this does not include unreported cases. There is still a long way to go to achieve parity amongst the sexes.
Gender inequality normally focuses on unequal pay and benefits despite the performance of identical roles or reduced pay or career progression after pregnancy. This is a major issue but is not all that constitutes gender discrimination in the workplace. It can also include soft discrimination such as subconsciously enforcing stereotypical roles, for example, stating that nurses should be women or that men are better in the sales division, etc.
As already discussed, harassment is a major issue in terms of gender equality.
The law governing gender discrimination is Title VII of the Civil Rights Act 1964, which operates where there are 15 or more employees.
Regarding the Equal Pay Act, it is worth noting that the jobs in dispute do not need to be identical, they just must be ‘substantially equal. Furthermore, the Act is not limited to wages, but also extends to bonuses, life insurance, holiday pay, allowances, reimbursements, overtime pay, stock options, profit-sharing, and benefits.
For the Equal Pay Act, individuals have two years to go to the EEOC or to personally file a suit to court. This is more lenient than other categories.
In more detail: LGBT
In the recent case of Bostock v Clayton Court, the Supreme Court ruled that Civil Rights Act also protects gay and transgender people within employment.
Though this is a recent change, it is worth remembering that prior to this case, many large companies already had protections for the LGBTQ community via policy. 89% of Fortune 500 businesses had such policies.
It is important to check company policy as rules can be more generous and encompassing than federal law.
What should you do?
If you are being affected by discrimination in the workplace, remember there are an abundance of anti-discrimination laws to protect you.
Firstly, you must ensure that you file a complaint with the EEOC within 180 days of the discrimination incident. This complaint will be called a ‘Charge of Discrimination. Note that some instances, dependent on state and local anti-discrimination laws allow 300 days – ensure that you check your state laws.
In order to fill out this form, you will require the full name, address, and a number of the accused employer as well as your own (or the person experiencing discrimination in the workplace if you are filing on someone’s behalf). You will also need to provide a brief description of the relevant incident as well as the date. This form can be delivered to the EEOC via an email, letter, phone call, or office visit.
It is free to file a complaint and you do not need to hire an attorney.
You should be aware that the EEOC will inform the company of the job discrimination complaint within 10 days since the complaint is failed. However, they will only be informed of the charge, not the details, and anti-discrimination laws prevent them from retaliating from your complaint.
What happens next?
The EEOC will consider your complaint and see whether or not you possess a valid claim. There is no time limit for them to provide you with an answer.
If their response is negative, then you will receive a ‘Dismissal and Notice of Rights”. This means that you have not suffered discrimination in the workplace. However, you can file your own lawsuit if you wish within 90 days of receiving the EEOC’s response.
If your complaint is successful, you will receive a ‘Letter of Determination’. This letter will explain the research and findings of the EEOC in regards to unequal treatment and the relevant anti-discriminatory laws.
Normally, proceedings will begin with mediation between the accused and the victim. This non-confrontational chance to talk through problems is preferred. If it does not work or the case is more extreme, the employer may be asked to give a written answer to the complaint explaining the discrimination in the workplace and what they plan to do to prevent a recurrence.
Furthermore, the EEOC may hold interviews and gather documentation if they wish. If all this fails, the EEOC may take the accused to court, though this is not guaranteed. Here, they attempt to award the discriminated party with damages, promotions, reinstatement alongside the promise of better policy and the re-education of offending managers.
Of course, this is not guaranteed, EEOC can waive their court rights. If you are unhappy with the result, you can still file your own lawsuit within 90 days of the waiver.
On the other side, if you want to drop your claim, you must simply tell the staff member assigned to your case and fill out another form.