Discrimination

Age Discrimination

Religious Discrimination

Disability Discrimination

Race Discrimination

National Origin Discrimination

Gender Discrimination

Employment discrimination exists when an employee is treated unfairly at work as a result of his or her membership in a protected class. Specifically, federal laws prohibit an employer from harassing employees or taking any "adverse employment action" against them because of their race or ethnicity, color, sex, age (over 40), national origin, religion, disability, or pregnancy. Please see our pages on specific categories of discrimination for more detailed information.

Federal anti-discrimination laws apply to businesses with fifteen or more employees, except for the Age Discrimination in Employment Act, which applies to employers with twenty or more employees. Most states also have anti-discrimination laws that reinforce federal provisions. Many expand them to prohibit discrimination against members of other classes - for example, because of sexual orientation, gender identity, or marital status - and to extend coverage to smaller employers. For more information, please see our chart of Information by State.

Adverse employment actions can include termination, demotion, unequal pay, prejudicial hiring practices, failure to promote a qualified employee, and/or inequality in granting leave, benefits, training, or work assignments.

Federal and state anti-discrimination laws also make illegal apparently neutral employment policies that have an adverse impact on a specific class. (For example, a policy that all employees must work one Saturday a month would have a disparate impact on Jews who observe the Sabbath). Sexual harassment, racial harassment, and retaliation for defending your rights, or the rights of others, are also prohibited under these laws.

DISCRIMINATION FREQUENTLY ASKED QUESTIONS

  1. How do I know if I'm being discriminated against?
  2. What are the federal laws that protect employees from discrimination?
  3. What should I do about the discrimination I'm facing at work?
  4. What is retaliation?
  5. What is a "hostile work environment"?
  6. Are there any time limits that may affect my ability to bring a discrimination claim?

1. How do I know if I'm being discriminated against?

Although employees often have an instinctive feeling that they are being treated unfairly at work, it can be difficult to know whether that treatment constitutes illegal discrimination. The best way to determine your rights is to contact an experienced employment attorney. However, below are some guidelines to help you establish whether you may have a valid discrimination claim.

  • Are you a member of a protected class?

As described above, anti-discrimination laws cover employees on the basis of their membership in a protected category or class. Are you a member of a protected class? For example, if you believe you're being discriminated against because of disability, do you meet the definition of "disabled" according to federal law or the law of your state? Please see our pages on specific categories of discrimination for more detailed information.

If you were terminated because, say, you are a Red Sox fan and your boss loves the Yankees, though the termination might be unfair, it would not be illegal: baseball fans do not constitute protected classes of individuals.

  • Is there evidence of discrimination?

Evidence can be either direct or circumstantial. Bigotry and prejudice, though unfortunately still present in American society, have taken on increasingly subtle forms as public awareness of inequality has grown. As such, workplace discrimination is rarely so blatant as to be demonstrated through direct evidence. Discrimination claims are usually argued by pointing to various pieces of circumstantial evidence that combine to reveal prejudicial motives.

Direct evidence is evidence that directly links the adverse employment action against you to your membership in a protected class. For example, if an employer told you that you were not promoted because "I just don't think the guys would like reporting to a woman," there would be direct evidence that you suffered an adverse employment action as a result of your gender. Direct evidence can be oral or written (as in emails, memos, or notes).

Circumstantial evidence consists of a variety of conditions which, when taken together, lead to the inference that discrimination has taken place. If you are a member of a protected class who is qualified for his/her job and who has suffered an adverse employment action, it is possible that discrimination was the cause. Some other questions that may be (but are not always) relevant to establishing whether discrimination has taken place:

  • Were you replaced by someone who is not a member of your protected class? If you believe you were terminated because you're African-American and the company hired another African-American person to fill your position, your case may be hard to argue.

  • Did your supervisors make derogatory work-related comments about your protected class status or members of your class in general? For example, "women make terrible managers," or "there are too many Bangladeshis working here."

  • Were discriminatory comments or behaviors so common or severe at your workplace that it made it difficult for you to do your job?

  • Does your company have a history of bias against employees in your class? E.g. If you think that you were demoted because you're in your fifties, it would be helpful to know if the company has a history of demoting employees over fifty. Conversely, are there employees around your age in comparable positions who are still in their jobs?

  • Have you noticed that there are not many members of your protected class at your company, or that there are not many in management positions?

Did your company have a valid reason for terminating or demoting you?

Another important factor to consider is whether you can counter the company's justification for their actions. It is not difficult for an employer to come up with a reason for taking action against you. In a discrimination claim, you must be able to demonstrate that the employer's stated justification is actually a pretext - an excuse used to disguise their discrimination. A few relevant questions:

  • Is the employer's reason for firing or demoting you factually untrue? Can you prove it?

  • What action has the employer taken against other employees who have committed the same kind of infraction you were accused of?

  • Is there other circumstantial evidence of discrimination?

  • Did the company violate its own disciplinary procedures in terminating or demoting you?

If you believe that you were the victim of discrimination, it is important to contact a knowledgeable employment attorney as soon as possible, as there may be serious time limit issues to your case. The attorneys at Joseph & Kirschenbaum LLP are committed advocates of employee rights with years of experience handling discrimination claims. Contact us to discuss the details of your case.


2. What federal laws protect employees from discrimination?

Title VII of the Civil Rights Act of 1964: 42 U.S.C. S 2000e, et seq. ("Title VII")

Passed into law under President Lyndon Johnson as part of the landmark Civil Rights Act of 1964, Title VII prohibits not only intentional workplace discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.

Title VII applies to all private employers, state or local governments, and educational institutions with fifteen or more employees. Many states have anti-discrimination laws expanding coverage to smaller employers. For specific information on the laws of your state, we recommend visiting our information by state under our State Agencies page.

Title VII of the 1964 Civil Rights Act makes it illegal for employers to discriminate against workers because of their sex, religion, race, color or national origin. This applies to everyone, even if they are not part of a group typically thought of as victims of discrimination. That means the law protects both men and women from discrimination based on gender; whites, Asians, Latinos and African Americans from racial discrimination; and atheists as well as Jews, Muslims and Christians from religious discrimination.

Title VII also protects individuals from discrimination caused by associating with members of a particular protected class. For example, a person cannot be terminated for having a spouse of a different race.

The Age Discrimination in Employment Act: 29 U.S.C. S 621, et seq. (ADEA)

The ADEA of 1967 prohibits age discrimination against individuals 40 years of age or older. The Older Workers Benefits Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit the denial of benefits to older workers.

The ADEA applies to all private employers with twenty or more employees. However, many states have anti-discrimination laws expanding coverage to smaller employers.

The ADEA's ban against age discrimination includes:

  1. 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 what's called a "bona fide occupational qualification" (BFOQ), i.e. a legitimate business reason for specifying an age preference. For example, a theater putting out a casting call for the role of a teenager.
  2. Discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs; and
  3. 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

Even if two employees are both in the protected group (ie. both over 40), under the ADEA an employer still may not discriminate between them based on age. Thus, a 62-year-old can allege an ADEA violation where she is replaced by a 45-year-old if age was the motivating factor.

Please see our page on age discrimination for more detailed information.

Americans with Disabilities Act: 42 U.S.C. S 12101, et seq. (ADA)

The Americans with Disabilities Act of 1990 prohibits discrimination on the basis of disability. The law requires employers to provide reasonable accommodation for an individual's known physical or mental limitations unless doing so would cause an undue hardship. The ADA applies to employers with fifteen or more employees. Many states have anti-discrimination laws that extend coverage to smaller employers. See our chart of information by state under State Agencies.

Discrimination cases under the ADA can be more complex than claims brought under other anti-discrimination laws. In most circumstances, the ADA only prohibits employment discrimination against a "qualified individual with a disability." The language of the ADA makes workplace discrimination against a "qualified individual with a disability" illegal, but workers may have trouble proving that they fit the definition of a qualified individual. They must demonstrate not only that discrimination existed, but also that he or she meets the definition of "disabled" that the law sets forth in the first place. However, the definition of disability under many state laws is far more inclusive.

Please see our page on disability discrimination for more detailed information.

The Immigration Reform and Control Act of 1986

The Immigration Reform and Control Act bars any employer with more than three employees from discriminating against a U.S. citizen, or an "intended citizen" (such as one who may work legally but is not yet a citizen) on the basis of his or her national origin. The law was enacted at the same time that the government strengthened its penalties against employers who hire illegal aliens and was intended to prevent employers from overreacting to the new laws by refusing to hire anyone who appears foreign.

The Equal Pay Act of 1963: 29 U.S.C. S 206(d) (EPA)

The Equal Pay Act amends the Fair Labor Standards Act (the federal wage and hour law) to specifically require employers to provide equal pay to men and women who perform "equal work," unless the difference in pay is caused by differences in seniority, merit or some other factor that is not based upon sex.

Executive Order 11246

Executive Order 11246 prohibits discrimination on the basis of race, gender, or national origin by federal contractors. This law largely replicates the requirements of Title VII, but it includes a requirement that contractors take "affirmative action" to ensure that the proportion of women and minority group members in the workplace reflects that of the population at large.


3. What should I do about the discrimination I'm facing at work?

If you are facing discrimination or harassment in your workplace, it makes sense to contact a knowledgeable employment attorney to discuss your options. Given the huge range of variables that shape each individual situation, the course of action that makes sense for one person will not necessarily be right for another. That said, the following are some basic steps that may help you protect yourself.

  • Make sure your employer is aware that you feel you are being discriminated against or harassed.

    It is likely that many illegal acts of harassment or discrimination are not addressed or punished because the victim does not make it clear that the conduct is unacceptable. Employers are responsible for complying with the law, but you must take charge of defending your rights in the workplace.

    Many employers have protocols in place for employees who wish to make complaints. Depending on how your company is organized, this could mean reporting the situation to the Human Resources Department, the owner of the company, your supervisor, an employee hotline, the head of your division, etc. If your immediate supervisor is the person responsible for the discrimination and you do not feel comfortable addressing him or her directly, then report the situation to the next person in the chain of command or to an HR representative.

  • Let the company know that you take the situation seriously.

    Request that a written report be made every time you report an incident of discrimination or harassment. Ask that the employer investigate your allegations and take disciplinary action against the offender(s). Employers are legally required to promptly address all reports of harassment or discrimination.

    You should also make your complaint in writing, including specific instances of discriminatory treatment. Do not just say, "I think my supervisor is treating me unfairly because I'm disabled." Name specific incidents, and include as much detail as possible, and be sure also that you believe the bad treatment is because, for instance, you are disabled. Keep a copy of your complaint.

    It is important to note that making a false report of harassment or discrimination could have serious ramifications for you at work - not the least of which being a compromised relationship with the individual whom you reported.

  • Document the harassment or discrimination. Specifically:
    • Keep a journal of any incidents. Include the date, what was said, who was there, etc. For example:
    • March 20, 2007. Conference call with Brain and Sandra, 2:00 PM. Brain angry that the efficiency reports weren't in yet - said to me, "I need those numbers, Grandpa!" Sandra can confirm.
    • April 1, 2007. Brian left a "Happy Retirement" card on my desk. Apparently intended it as April Fool's joke. He showed it to Beth and Mike before putting it there.
    • Keep any objects or pictures that were left for you or displayed in the workplace that you believe were discriminatory or harassing - regardless of how upsetting or reprehensible the item. For example, say you are African-American. You arrive at your desk one morning to find a picture of a noose taped to your chair. Though you certainly might have the impulse to destroy such a disturbing and offensive image, resist it. Having evidence of the discrimination will help you confront the issue. Take a photo of the object in place if you can.
    • In the same vein, keep a copy of any email or other written communication you find harassing or discriminatory. It may be wise to forward the email to a personal address, or print out a copy and keep it in a file at your home. When employees are terminated, they generally lose access to their work email accounts.

  • Consider contacting the EEOC or corresponding state agency.

    If you have made your employers aware of the situation and they have not responded, think about contacting the Equal Employment Opportunity Agency (EEOC), which is the federal agency responsible for investigating alleged violations of anti-discrimination or anti-harassment laws. You could also file a charge with your corresponding state agency. Please note that federal anti-discrimination laws only apply to businesses with fifteen or more employees. However, many states have laws which extend coverage to smaller employers. Involving the government is certainly one way to get your employer's attention quickly.

  • Make sure you know your rights.

    Review federal and state anti-discrimination laws to better understand what your rights are. The primary federal laws protecting employees are Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Family Medical Leave Act. For more information on the laws in your state, you could contact your state's Department of Labor, or visit our information-by-state page under State Agencies.


4. What is retaliation?

Most federal and state laws that protect workers' rights also make it illegal for an employer to retaliate against someone for engaging in an activity that the law protects.

Retaliation can include harassment, demotion, reassignment, termination, or any other act that negatively impacts your employment and is intended to discourage or punish your attempt to protect your rights.

Anti-discrimination laws define as a "protected activity" any action intended to oppose or correct discrimination against you or someone else. An employer cannot retaliate against you for: making a discrimination complaint, threatening to make a discrimination complaint, filing a charge of discrimination with a government agency, helping someone else oppose discrimination, cooperating with an investigator, providing a witness statement or evidence for someone else, (in many states) refusing to engage in an activity which you believe is unlawful, or refusing to help an employer engage in discrimination.

The Family Medical Leave Act, which covers businesses with fifty or more employees within a seventy-five mile radius, also protects employees from retaliation for requesting medical leave or protesting an employer's denial of leave time.

In order to prove that retaliation has taken place, you must be able to demonstrate that the action taken against you resulted from your engagement in a protected activity. Unfortunately, this connection can be difficult to establish. A few things to consider:

  • Did the person who made the decision about your job know that you had engaged in protected conduct?

  • Does timing suggest a causal relationship?
  • One piece of evidence often used to demonstrate retaliation is that of timing. If you complained about discrimination and were terminated shortly thereafter, the temporal proximity of the events suggests that you were terminated as a result of your complaint.

  • Can you disprove your employer's stated reason for taking action against you?
  • Demonstrating that your employer's justification for taking action against you is bogus also helps support a claim of retaliation.
    • Is the employer's reason for firing or demoting you factually untrue? Can you prove it?
    • What action has the employer taken against other employees who have committed the same kind of infraction you were accused of?
    • Did the company violate its own disciplinary procedures in terminating or demoting you?

If you believe that you were the victim of retaliation, it is important to contact a knowledgeable employment attorney as soon as possible, as there may be serious time limit issues to your case. The attorneys at Joseph & Kirschenbaum LLP are committed advocates of employee rights with years of experience handling discrimination claims. Contact us to discuss the details of your case.


5. What is a "hostile work environment"?

A hostile work environment exists when an employee is made to endure discriminatory harassment at work. For the working environment to be considered "hostile" (i.e. intimidating, offensive, abusive), the harassment must be either frequent or severe. It can come from a supervisor or boss, a coworker, an independent contractor - anyone with whom you have contact as a result of your job.

It is important to note that, in order to constitute a hostile work environment, the harassing treatment must be discriminatory in nature; that is, abuse on the basis of race or color, sex, religion, national origin, age, disability, pregnancy, or other categories that may be protected under state law. A common misconception is that any situation making it unpleasant or upsetting to go to work - a bullying coworker, an unreasonable boss, etc. - can create a hostile work environment. This is not the case. It is not illegal to be a nasty person, even when that nastiness makes others dread going to work. There is no specific law protecting employees from working under conditions that are simply unpleasant. Rather, hostile work environments are defined and prohibited under Title VII and other anti-discrimination laws that protect employees from working under discriminatory conditions.

The phrase "hostile work environment" has a specific meaning in the context of sexual harassment claims. It is used to describe one of two categories of sexual harassment, the other being "quid pro quo" sexual harassment (in which job benefits are directly linked to subjection to unwanted sexual advances). For more detailed information on hostile work environment sexual harassment, please visit our sexual harassment page.


6. Are there any time limits that may affect my ability to bring a discrimination claim?

YES.

In order to file a discrimination lawsuit under Title VII, you must first "exhaust your administrative options" by filing a charge with the Equal Employment Opportunity Commission (EEOC), the federal agency that investigates discrimination claims. For most states, you must file your charge within 300 days of the last incident of discrimination or retaliation. It is best to file quickly, in order to be sure that prior incidents are included.

The EEOC requires in many states, and even in parts of some states, that the filing must be made within 180 days.

Most states have their own agencies that investigate violations of state anti-discrimination laws. Some states - though not all - also require that you exhaust administrative options by filing a charge with the state agency prior to bringing a lawsuit. The statutes of limitations vary from state to state. As such, we strongly recommend that you contact an attorney sooner rather than later to ensure that your statute of limitations does not lapse. For more specific information on the laws and time limits of your state, we suggest consulting your state's department of labor or visit our information by state under State Agencies.

Overall it is critical that you contact an attorney as soon as possible. There are statutes, for instance, OSHA retaliation, as short as 30 days.

Employment Lawyer Blog - Discrimination Overview