Employment and Anti-Discrimination Laws: An Introduction
Almost every employer and employee is subject to obligations and protections under a number of federal employment and anti-discrimination laws, while state laws may vary greatly in terms of their application to employers and protections provided to employees. Following is a primer on important federal employment and anti-discrimination laws. Given the wide variation in state employment and anti-discrimination laws, it is important that you also understand the employment laws in your state. If you have questions about your obligations as an employer under the laws in your state, or wish to discuss your rights under the federal laws described below, talk with an employment law attorney in your area.
The Americans with Disabilities Act protects those individuals who have a long-term physical or mental impairment that substantially limits a life activity. A "disability" under the ADA can include confinement to a wheelchair, vision and hearing problems, reliance on a cane or "walker," certain mental illnesses, and disorders of the muscular system.
Under the ADA, an employer must provide reasonable accommodations for disabled individuals protected under the act, and may not:
- Make employment decisions based on generalizations about the disability;
- Adopt detrimentally different pay scales, benefit programs or promotion opportunities for a protected individual or group;
- Negotiate and enter into contracts with other companies that would have the effect of discriminating against individuals or groups on the basis of disability;
- Discriminate against any employee with regard to terms of employment because a family member or friend is protected under the ADA; or
- Discriminate against protected individuals or groups through the use of pre-employment medical examinations, pre-employment inquiries about physical abilities, job descriptions and qualifications, absenteeism, and work safety.
Note: The ADA applies only to employers with fifteen or more employees.
The ADEA is designed to protect individuals over the age of forty from discrimination based upon their age. The Act protects individuals from discriminatory treatment, based on their age, in hiring, promotion, and firing decisions.
The ADEA does not prohibit an employer from following a bona fide seniority system that may have the unintended affect of favoring certain employees, and the Act does allow age to play a factor in the rare circumstances where it is a bona fide occupational qualification.
Note: The ADEA applies only to employers with twenty or more employees.
COBRA protects employees who have ended their employment (whether fired, resigned, or laid off) from losing coverage under a group health plan. The Act requires employers to offer such employees the right to a continuation of coverage
Note: COBRA applies only to employers with twenty or more employees.
The Equal Pay Act requires that employers pay male and female employees the same wage for performing the same job. In short, the Act mandates "equal pay for equal work." It does not address pay equities with respect to other characteristics, such as race or religion, but applies only to gender.
Note: Employers who are required to comply with the Fair Labor Standards Act (FLSA) are also required to comply with the Equal Pay Act.
ERISA is a federal law that contains detailed requirements for certain employers who offer their employees a welfare benefit plan or retirement plan. An example of a welfare benefit plan is one providing health insurance to employees.
Note: For liability purposes, employers may have a rather inactive involvement in ERISA compliance; particularly where a "plan administrator" is utilized to ensure that reporting, disclosure, and payment obligations are complied with.
Family Medical Leave Act (FMLA)
Under the FMLA, employers must provide their employees with family leave. The Act allows for employees to take the equivalent of twelve weeks of unpaid leave each year due to the birth or adoption of a child, to attend to the "serious health condition" of an immediate family member, or to attend to their own "serious health condition."
Under the FMLA, a "serious health condition" is defined as an illness, injury, impairment, or physical or mental condition which involves an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with that care, which also includes:
- A period of incapacity of more than three consecutive days;
- Any period of incapacity due to pregnancy or prenatal care;
- Any period of incapacity or treatment due to a chronic serious health condition;
- A period of incapacity that is permanent or long-term due to a condition for which treatment may be ineffective; or
- Any period of absence to receive multiple treatments from a health care provider, including treatment for conditions that are not presently incapacitating, but would become so if left untreated.
The FMLA also requires that, after the twelve weeks of unpaid leave, the employee be reinstated to the same job (or an equivalent job if the original position is no longer available).
Note: The FMLA applies only to employers with fifty or more employees.
Fair Labor Standards Act (FLSA)
The Fair Labor Standards Act requires employers to comply with minimum-wage requirements. In addition, the FLSA contains provisions on overtime pay and child labor. Not every employer is required to comply with the FLSA. Only employers who are engaged in interstate or foreign commerce and whose gross yearly sales total or exceed $500,000 are required to comply with the Act.
Title VII prohibits employers from discriminating against employees on the basis of race, color, national origin, religion, or gender in all aspects of employment -- from recruitment through termination.
In order to comply with Title VII, an employer must make employment decisions on the basis of business necessity, rather than based upon a particular individual's membership in a protected class. However, there is a rarely (successfully) used exception to complying with Title VII, when there is a bona fide occupational qualification that requires an employee to possess a certain characteristic.
Note: Title VII applies only to employers with fifteen or more employees.