Employment Discrimination

In a claim for age discrimination, a person must prove that he/she: (1) is over the age of 40; (2) possesses the requisite qualifications for the position in question; and (3) was the object of a negative employment decision that had been based solely on his/her age. Given the present climate of corporate "downsizing," an employer may very well argue that an employee's lay-off had been motivated by economic necessity. However, the employer will be liable for age discrimination if the employee is able to show that the employer engaged in a pattern of laying-off older workers and maintaining younger employees.

To prevail on a claim for disability-related employment discrimination, a job applicant or employee must establish that he/she: (1) is "disabled"; (2) is qualified with or without reasonable accommodation to perform the essential functions of the job in question; and (3) was discriminated against solely on the basis of his/her "disability." Under the Americans with Disabilities Act, a "disability" is "a physical or mental impairment that substantially limits one or more of the major activities of life." Conditions and diseases such as hearing impairments, cerebral palsy, epilepsy, cancer, and heart disease are covered under the act. In Bragdon v. Abbott (1998), the United States Supreme Court held that the HIV infection also constitutes a "disability," even if it is not yet symptomatic.

Generally, an employer is obligated to reasonably accommodate a disabled employee, unless a reasonable accommodation would cause the employer to suffer an undue hardship, in terms of significant difficulty or expense. Therefore, all of a disabled worker's requests for accommodation need not be fulfilled. Given the employer's particular circumstances, it may be reasonable for the employer to modify a disabled employee's work schedule. However, it would not be reasonable for the employer to permanently assign a majority of the disabled worker's duties to other employees.

An employee who wishes to pursue a race discrimination claim under Title VII would allege that an employer had either directly discriminated against him/her or had indirectly discriminated against him/her by enforcing a policy which had the effect of discriminating against his/her race even though the policy was racially neutral on its face. The first type of discrimination is referred to as "disparate treatment," while the second type is called "disparate impact." Under the "disparate treatment" theory, an employee who claims that he/she was denied a promotion on the basis of race must demonstrate that he/she: (1) was qualified for the position in question; (2) had been performing his/her work according to legitimate business expectations; (3) but was denied a promotion despite his/her performance; and (4) similarly situated employees who are not protected under Title VII were given more favorable treatment. Under the "disparate impact" theory, an employee must establish that he/she was denied a promotion because a particular policy had the illegal effect of discriminating against his/her race.

To make out a claim for religious discrimination, an employee must allege that he/she has: (1) a bona fide belief that compliance with a workplace rule or policy is contrary to his/her "religion"; (2) informed his/her employer about the conflict; and (3) suffered an adverse employment consequence solely on the basis of his/her religious belief. Under Title VII, the word "religion" refers to moral and ethical beliefs, as well as to organized religions. Atheists are also afforded protection against religious discrimination. However, mere political beliefs do not fall within the scope of Title VII. Furthermore, religious organizations are not subject to the prohibitions against religious discrimination. For instance, a church is entitled to hire only members of its particular faith to serve as ministers. As in a disability discrimination claim, the employer in a religious discrimination case has a duty of reasonable accommodation. That is, the employer must make a reasonable effort to accommodate an employee's religious beliefs unless an accommodation would result in an undue hardship. The reasonableness of a requested accommodation must be viewed in light of the totality of circumstances. Depending on the situation, it may be reasonable for the employer to relieve an employee from working overtime so that the employee can attend services in connection with a religious holiday.

Similar to an employee who claims racial discrimination, a worker who alleges sex discrimination may proceed under a "disparate treatment" or a "disparate impact" theory. In UAW v. Johnson Controls, Inc. (1991), the United States Supreme Court found that an employment policy, which was aimed at protecting fertile women from the dangers of lead exposure, constituted impermissible disparate treatment of female workers.

An employee may also have a claim for sexual harassment, which basically involves unwelcome sexual advances, requests for favors of a sexual nature, and other verbal or physical sexual conduct. Surprisingly, in Burlington Industries, Inc. v. Ellerth (1998), the United States Supreme Court found that a worker may pursue a claim for sexual harassment even though she failed to report her supervisor's offensive conduct and even though she received a promotion during the time that the sexual harassment had allegedly occurred. A sexual harassment suit may be brought by a male claiming unwelcome sexual advances by a female, or by a female claiming similar conduct by a male. Additionally, in Oncale v. Sundowner Offshore Services Incorporated et al (1998), the U. S. Supreme Court determined that same-sex sexual harassment is actionable under Title VII. This means that a male may claim that he was sexually harassed by another male and a female may claim that she was sexually harassed by another female.