9 minute read

Employment Discrimination

Historically, an employer and employee had a strict "at will" relationship. That is, the employer could reject a job applicant or demote or discharge an employee for no reason or for any reason whatsoever, including a motive to discriminate on the basis of age, disability, race, religion, or sex. The employer was even free to implement a discriminatory wage scale. In turn, an employee was entitled to quit at any time for any reason or for no reason. Employees were afforded some relief with the rise of unionism. An employer that was bound by a collective bargaining agreement could discipline or fire an employee only in accordance with the terms of the agreement. However, even the unions were accused of practicing discriminatory representation methods. In 1963,Congress passed the Equal Pay Act, which bans employers from discriminating against employees on the basis of sex as to the payment of wages. With a few exceptions, this law requires employers to pay equal wages for equal work.
Congress subsequently enacted Title VII of the Civil Rights Act of 1964, which had a profound impact on employer-employee relationships. It prohibits employers from discriminating against employees on the grounds of color, nationalorigin, race, religion, or sex. The term "sex" encompasses pregnancy, childbirth, and related medical conditions. More specifically, Title VII forbids employers from engaging in the following practices: (1) failing or refusing tohire or firing or otherwise discriminating against a person with respect to "compensation, terms, conditions, or privileges of employment;" and (2) limiting, segregating, or classifying employees or job applicants "in any way whichwould deprive or tend to deprive any individual of employment opportunitiesor adversely affect his status as an employee." Labor unions and employment agencies are also subject to the provisions under Title VII. Pursuant to Executive Order 11246, certain employers, such as those with federal contracts, were required to implement affirmative action plans in furtherance of Title VII. Basically, an affirmative action plan is one which establishes a preferential hiring and promotional plan for minorities and women. Such a plan is intended to redress past discrimination and remedy the underutilization of minorities and women in the workforce. Fearing lawsuits, many employers not coveredunder Executive Order 11246 voluntarily established affirmative action programs. Non-minorities and males have criticized affirmative action programs as constituting reverse discrimination. Recently, affirmative action plans have been struck down in the context of college admissions programs. Accordingly, the longevity of affirmative action is questionable. Subsequent to Title VII,Congress enacted statutes which protect employees from discrimination on thebasis of age. The Age Discrimination in Employment Act of 1967 shields workers over the age of 40. Moreover, the Older Workers Benefit Protection Act of 1990 safeguards the benefits of older workers.
Congress also passed legislation which prohibits discrimination against employees with mental and physical disabilities. Both the Americans with Disabilities Act of 1990 and the Vocational Rehabilitation Act of 1973 protect disabled workers. The latter applies to a narrower pool of employers.
Similar to Title VII, the statutes prohibiting age and disability discrimination apply to all facets of employment. That is, they protect an individual from discrimination in terms of job advertisements, during the initial job application procedure and throughout the employment relationship. Congress created the Equal Employment Opportunity Commission (EEOC) for the purpose of enforcing the federal employment discrimination laws. Among other things, the EEOChas the power to investigate discrimination claims, engage in educational activities, and make technical studies. The EEOC also issues guidelines, whichare contained in the Code of Federal Regulations (CFR). Generally, the abovefederal statutes regulate employers that are federal agencies, are engaged inan industry that has an affect on interstate commerce (trade between states), or have a business or financial relationship with the federal government--i.e., federal contractors or recipients of federal funds. States have passed parallel laws to cover those employers that do no fall within the parameters of the federal enactments. A state law may even prohibit employer practices which are not banned under federal authority, such as discrimination on the basis of height or weight.
Today, "at-will" employment (a job relationship that is not subject to a collective bargaining agreement) is still a reality. However, the above federal statutes and their state counterparts serve to restrict the circumstances under which an employer can hire, compensate, promote, or discharge an employee.
Burdens of Proof
In an employment discrimination suit, the aggrieved job applicant or employeewill have the initial burden of establishing that he/she is entitled to protection under the relevant statute and that the employer discriminated againsthim/her in violation of that statute. For instance, an employee claiming race discrimination would rely on Title VII, while an employee claiming age discrimination would invoke the Age Discrimination in Employment Act. A 50-year-old disabled woman may claim protection under Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. The burden of proof will then shift to the employer to articulate a legitimate, nondiscriminatory reason for its action. By way of example, an employer may allege that ajob applicant lacked the requisite skills or that an employee was dischargedfor poor performance, insubordination, or habitual tardiness. After the employer has offered a reason for its conduct, the burden of proof will shift back again to the job applicant or employee to show that such reason constitutesa mere pretext for discrimination.
An employee claiming violation under the Equal Pay Act will seek back pay. The amount awarded will be the difference between the aggrieved employee's wages and the wages of the employee of the opposite sex who had been performing the same job as the aggrieved employee. Back pay, reinstatement, and injunctive relief may be granted under Title VII, the Age Discrimination in EmploymentAct, and the Americans with Disabilities Act. This is a means to remedy thewage discrimination.
Specific Types of 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 positionin 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 forage discrimination if the employee is able to show that the employer engagedin a pattern of laying-off older workers and maintaining younger employees.
To prevail on a claim for disability-related employment discrimination, a jobapplicant or employee must establish that he/she: (1) is "disabled"; (2) isqualified with or without reasonable accommodation to perform the essential functions of the job in question; and (3) was discriminated against solely onthe basis of his/her "disability." Under the Americans with Disabilities Act,a "disability" is "a physical or mental impairment that substantially limitsone 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 anundue 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 bereasonable for the employer to permanently assign a majority of the disabledworker's duties to other employees.
An employee who wishes to pursue a race discrimination claim under Title VIIwould 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 denieda promotion despite his/her performance; and (4) similarly situated employeeswho 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 orpolicy is contrary to his/her "religion"; (2) informed his/her employer about the conflict; and (3) suffered an adverse employment consequence solely onthe 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 religiousdiscrimination. For instance, a church is entitled to hire only members of its particular faith to serve as ministers. As in a disability discriminationclaim, 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 resultin an undue hardship. The reasonableness of a requested accommodation must beviewed 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 allegessex discrimination may proceed under a "disparate treatment" or a "disparateimpact" 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 thata 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 sexuallyharassed by another male and a female may claim that she was sexually harassed by another female.

Further Readings

  • Filipp, Mark R. Employment Law Answer Book. New York, NY: Panel Publishers, 1998
  • Jasper, Margaret C. Employee Rights in the Workplace. Dobbs Ferry,NY: Oceana Publications, Inc., 1997
  • Petrocelli, William. Sexual Harassment on the Job, 3rd Ed. Berkeley, CA: Nolo Press, 1998

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Embargo to Estate pur (or per) autre vie