Discrimination in the Workplace

Generally speaking, the law prohibits two types of discrimination:

• “Disparate Treatment” discrimination, in which an individual is deliberately treated less favorably than a person from a different group because of that person’s sex, race, religion, national origin, age, disability, or other protected status; and
• “Disparate Impact” discrimination, in which an apparently objective rule, standard, or test has a disproportionately adverse effect on members of a protected group compared to people outside that group, and the employer cannot show that the rule, standard, or test is job-related and justified by business necessity. Examples of discriminatory impact include mandating a required test on which a particular class tends to score badly or adopting hiring criteria that tend to screen out women or minority groups. Such a policy or test is legal only if it can be deemed a “bona fide occupational qualification” and a necessary component of the job.

Federal and state laws prohibit an employer from discriminating against an employee because of that employee’s race or national origin. An employer may not give an employee less favorable treatment, fewer job or promotional opportunities, or terminate or refuse to hire an employee because of that employee’s race, ethnicity, or national origin. An employer may not adopt policies that disproportionately impact members of a particular race unless the employer can demonstrate that there is a legitimate business necessity for such policies.

It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. Employers may not discriminate against employees on the grounds that they are from another country, have names or accents associated with a national origin group, participate in certain customs associated with a national origin group, or are married to or associate with people of a certain national origin. A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business.

It is also illegal for an employer to subject an employee or allow an employee to be subjected to severe or pervasive harassment because of that employee’s race or national origin. Harassment based on race or national origin is any conduct that interferes with a person’s work performance, negatively affects a person’s employment opportunities, or creates an intimidating, hostile, or offensive work environment. Racist jokes, name-calling, threats, and other forms of mistreatment towards an employee because of his or her race or national origin are illegal.

Religious Discrimination

Federal, state, and local anti-discrimination laws prohibit employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. Title VII of the Civil Rights Act of 1964 requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer. Flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers are examples of accommodating an employee’s religious beliefs.

Employers cannot schedule examinations or other selection activities in conflict with a current or prospective employee’s religious needs, inquire about an applicant’s future availability at certain times, maintain a restrictive dress code, or refuse to allow observance of a Sabbath or religious holiday, unless the employer can prove that not doing so would cause an undue hardship.

An employer can claim undue hardship when accommodating an employee’s religious practices if allowing such practices requires more than ordinary administrative costs. Undue hardship also may be shown if changing a bona fide seniority system to accommodate one employee’s religious practices denies another employee the job or shift preference guaranteed by the seniority system.

An employee whose religious practices prohibit payment of union dues to a labor organization cannot be required to pay the dues, but may pay an equal sum to a charitable organization.

Mandatory “new age” training programs, designed to improve employee motivation, cooperation or productivity through meditation, yoga, biofeedback or other practices, may conflict with the non-discriminatory provisions of Title VII. Employers must accommodate any employee who gives notice that these programs are inconsistent with the employee’s religious beliefs, whether or not the employer believes there is a religious basis for the employee’s objection.

(Source: Equal Employment Opportunity Commission, Facts About Religious Discrimination)

Sex And Pregnancy Discrimination

Federal and state laws prohibit an employer from discriminating against an employee because of that employee’s sex. An employer may not give an employee less favorable treatment, fewer job or promotional opportunities, or terminate or refuse to hire an employee because of that employee’s sex. An employer also may not make employment decisions based on stereotypes of how women should act in the workplace (e.g. placing women onto the “mommy track,” assuming that a women is the “secondary breadwinner” for her family and does not need the same job opportunities as a man).

Laws prohibiting discrimination on the basis of sex also prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions.

Sexual Harassment

Federal, state, and local laws protect employees from unwelcome sexual advances or demands and from being forced to work in a sexually hostile work environment. Despite these strong and well-established legal protections, sexual harassment continues to be a widespread problem and sexual harassment claims have risen steadily since the time of the Anita Hill-Clarence Thomas hearing in 1991.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

• The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
• The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
• The harasser’s conduct must be unwelcome.

It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.

When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

(Source: Equal Employment Opportunity Commission: Facts About Sexual Harassment)

Retaliation

Federal, state and local anti-discrimination laws prohibit an employer from retaliating against an employee because that employee opposed conduct he or she reasonably believed constituted unlawful discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.

Retaliation occurs when an employer takes an “adverse action” against an employee because he or she engaged in a “protected activity.” Protected activity can take the form of complaining to one’s supervisor or to a Human Resources representative, filing a charge or complaint of discrimination, participating in an EEO investigation, sitting for a deposition in a discrimination case, or otherwise opposing discrimination or participating in the discrimination complaint process. Adverse action by an employer may take the form of termination, demotion, denial of a promotion, refusal to hire, transfer, assignment to undesirable job duties, or other unjustified retaliatory conduct. Indeed, the Supreme Court issued a landmark decision in June of 2006, called Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), expanding the rights of workers to be free from retaliatory action, including non-employment related actions.

If the employee who has been retaliated against is a federal government employee or has reported financial or accounting improprieties, specific anti-retaliation statutes such as the Whistleblower Protection Act or the Sarbanes-Oxley Act may also apply.  Contact the experienced attorneys at Katz, Marshall & Banks, LLP for an evaluation of your case with no further obligation.