Discrimination by an employer is a heavily regulated subject, and when hiring an employee there are a host of rules and regulations that an employer can run afoul of at both the federal and state level. Many of these laws apply to businesses with more than fifteen people, but some (such as the Equal Pay Act) apply to virtually all businesses, and generally apply to private as well as government employers. Here is an overview of the regulatory framework regarding discrimination by an employer.
Overview of Applicable Federal Laws Prohibiting Discrimination by an Employer
Although this list is not exhaustive, these are the most commonly litigated areas of employment discrimination law:
- Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin
- The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination
- The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older
- Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, as well as in state and local governments
- The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination
- Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee
The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with enforcing these laws.
Types of Employment Practices Covered by Employer Discrimination Laws
Laws prohibiting discrimination by an employer cover all aspects of job-related decision making. It is generally illegal for an employer to discriminate while making any of the following job-related decisions:
- Hiring and firing
- Compensation, assignment, testing or classification of employees
- Transferring, promoting or laying-off
- Job advertising and recruitment
- Use of company facilities
- Training and apprenticeship programs
- Pay, retirement plans, fringe benefits and disability leave
Expressly Prohibited Forms of Discrimination
Some areas of discrimination are so well established that they have specific rules and case law associated with them. The most common expressly-prohibited forms of discrimination in employment include:
- Harassment on the basis of race, color, religion, sex, national origin, disability, genetic information, or age
- Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices
- Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual's genetic information
- Denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability
- Denying employment opportunities to a person because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group
Employers are required to post notices to all employees advising them of their rights under the laws the EEOC enforces and their right to be free from retaliation. Such notices must be accessible to persons with visual or other disabilities that affect reading.
State Laws Against Discrimination by an Employer
Many states and localities have anti-discrimination laws and agencies responsible for enforcing discrimination by an employer laws. These agencies are often referred to as "Fair Employment Practices Agencies (FEPAs)", and they work alongside the EEOC to protect employee rights under both federal and state law. Always check the laws of the state you live in to see what additional protections employees are afforded and what additional requirements employers must meet. For instance, many states and municipalities have enacted protections against discrimination and harassment based on sexual orientation, status as a parent, marital status and political affiliation.