Federal Equal Employment Law
Following are the laws that are enforced by the Equal Employment Opportunity Commission:
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964, prohibits discrimination based on race, color, religion, sex or national origin:
It is unlawful to discriminate against any individual in regard to recruiting, hiring and promotion, transfer, work assignments, performance measurements, the work environment, job training, discipline and discharge, wages and benefits, or any other term, condition, or privilege of employment. Title VII prohibits not only intentional discrimination, but also neutral job policies that disproportionately affect persons of a certain race or color and that are not related to the job and the needs of the business. Employers should adopt “best practices” to reduce the likelihood of discrimination and to address impediments to equal employment opportunity.
Current EEOC regulations state that race discrimination may occur when a person is subjected to ethnic slurs, racial jokes, offensive or derogatory comments or other verbal or physical abuse based on an individual’s race or color. The use of such language may give rise to a Title VII claim if the conduct creates an intimidating, hostile or offensive working environment, or interferes with an individual’s work performance. See, Race/Color Discrimination.
EEOC regulations require an employer to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship. The EEOC has further held that it is unlawful for employers, employment agencies, labor organizations, and joint labor management committees to discriminate against an employee or applicant for employment because of their religion, in hiring, firing, and other terms and conditions of employment. The EEOC defines religion to include; religious observance, practice and belief. See, Religious Discrimination.
It is unlawful under Title VII to fail or refuse to hire, to discharge, or otherwise to discriminate against any individual with respect to their compensation or terms, conditions, or privileges of employment because of the individual’s sex. See, Sex-Based Discrimination.
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. 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.
- The victim should directly inform the harasser that the conduct is unwelcome and must stop. The victim should also use any employer complaint mechanism or grievance system available. See, Sexual Harassment.
Pregnancy Discrimination Act (PDA) of 1978
This Title VII amendment, the Pregnancy Discrimination Act (PDA) of 1978, prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. The EEOC has found that women affected by pregnancy or related conditions, must be treated in the same manner as other applicants or employees with similar abilities or limitations. See, Pregnancy Discrimination.
National Origin Discrimination
Title VII of the Civil Rights Act of l964 protects individuals against employment discrimination on the basis of national origin as well as race, color, religion and sex. It is unlawful to discriminate against any employee or applicant because of the individual’s national origin. No one can be denied equal employment opportunity because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. Equal employment opportunity cannot be denied because of marriage or association with persons of a national origin group; membership or association with specific ethnic promotion groups; attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or a surname associated with a national origin group. 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. See, National Origin Discrimination.
Exceptions to the Prohibition Against National Discrimination
The EEOC has found two categories of exceptions to the prohibition against national origin discrimination: “the national security exception and the bona fide occupational qualification (BFOQ) exception. The national security exception generally applies to government employment and allows the exclusion of an individual who does not meet requirements for a position imposed in the interest of the national security of the United States. The BFOQ exception essentially allows an employer to discriminate between applicants or employees based on an otherwise protected classification in cases in which that particular classification is essential to performance in the position. The EEOC further finds that the exception only applies if treaty obligations conflict with Title VII’s prohibition against national origin.”
Genetic Information Nondiscrimination Act (GINA) of 2008
Under Title II of the Genetic Information Nondiscrimination Act (GINA) of 2008, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information. The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.
Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members (i.e. an individual’s family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.
The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn’t tell the employer anything about someone’s current ability to work. See, Genetic Information Discrimination.
Equal Pay Act of 1963 (EPA)
The Equal Pay Act (EPA) of 1963 prohibits employers from paying wages to one sex at a rate less than the rate at which they pay wages to employees of the opposite sex for equal work on jobs which require equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: provided, that an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee. See, Equal Pay/Compensation Discrimination.
Title I (ADA) Prohibited Employment Practices
Title I of the Americans with Disabilities Act of 1990 (ADA)
Title I of the Americans with Disabilities Act (ADA) of 1990 protects qualified individuals with disabilities from employment discrimination and requires employers to make reasonable accommodation for applicants and employees with disabilities. Under the ADA, a person has a disability if they have a physical or mental impairment that substantially limits a major life activity. The ADA also protects individuals who have a record of a substantially limiting impairment, and people who are regarded as having a substantially limiting impairment. To be protected under the ADA, an individual must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning or working. An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation, in order to be protected by the ADA. This means that the applicant or employee must: satisfy your job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related; and be able to perform those tasks that are essential to the job, with or without reasonable accommodation.
The Supreme Court has ruled that the determination of whether a person has an ADA “disability” must take into consideration whether the person is substantially limited in performing a major life activity when using a mitigating measure. This means that if a person has little or no difficulty performing any major life activity because they use a mitigating measure, then that person will not meet the ADA’s first definition of “disability.” The Supreme Court’s rulings were in Sutton v. United Airlines, Inc., 527 US (1999), and Murphy v. United Parcel Service, Inc., 527 US (1999). See, Disability Discrimination.
Age Discrimination in Employment Act of 1967 (ADEA)
The Age Discrimination in Employment Act protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of their age with respect to any term, condition, or privilege of employment — including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government. See, The Age Discrimination in Employment Act of 1967 and Age Discrimination.
Civil Rights Act of 1991
The Civil Rights Act of 1991 was enacted in part to reverse several Supreme Court decisions that limited the rights of persons protected by these laws, the Act also provides additional protections. The Act authorizes compensatory and punitive damages in cases of intentional discrimination, and provides for obtaining attorneys’ fees and the possibility of jury trials. It also directs the EEOC to expand its technical assistance and outreach activities.
The above referenced laws prohibit discrimination in any aspect of employment, including the following:
- Hiring and firing
- Compensation, assignment, or classification of employees
- Transfer, promotion, layoff, or recall
- Job advertisements
- Use of company facilities
- Training and apprenticeship programs
- Fringe benefits
- Pay, retirement plans, and disability leave
- Other terms and conditions of employment
Any individual who believes that their employment rights have been violated may file a charge of discrimination with EEOC. In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person’s identity.
Charges may be filed in person, by mail or by telephone by contacting the nearest EEOC office. The address and telephone number of the local San Diego office is: 401 B Street, Suite 510, San Diego, CA 92101 Phone: 619-557-7274. Or you may call toll free 800-669-4000 or 800-669-6820 (TTY) for more information. See, Filing A Charge of Discrimination.
Which Agency will Handle a Discrimination Complaint?
Many states and localities have anti-discrimination laws and agencies responsible for enforcing those laws. EEOC refers to these agencies as “Fair Employment Practices Agencies (FEPAS).” Through the use of “work sharing agreements,” EEOC and the FEPA agencies avoid duplication of effort while at the same time ensuring that a complainant’s rights are protected under both federal and state law.