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Employment discrimination generally refers to unlawful employment-related decisions (e.g., hiring, promotion, discipline, termination) based on “protected characteristics” of an employee or applicant.
Applicable Federal and State Laws
Title VII of the Federal Civil Rights Act of 1964 makes it unlawful for an employer with 15 or more employees to consider the race, color, religion, sex or national origin of an employee or applicant. Pregnancy has been specifically included in the prohibition against sex discrimination since enactment of the Pregnancy Discrimination Act of 1978. Discrimination based on physical or mental disability is unlawful under the Americans with Disabilities Act. Under the Age Discrimination in Employment Act, employers may not base employment decisions on the fact that an employee or applicant is between the ages of 40 and 70 years of age.
Many states have enacted laws creating additional protected characteristics, such as sexual preference (prohibiting discrimination on the basis of homosexuality, heterosexuality or trans sexuality) or status as an adoptive parent, a victim of domestic violence or an organ donor. Also, many states have laws prohibiting employment discrimination by employers with as few as five employees.
Sex and Pregnancy
Employers may not make employment decisions based on an employee’s gender, marital status or pregnancy status. Thus, it is unlawful to fail to hire or promote an employee because she is of child-bearing age and might need time off for pregnancy. Employers must provide employees with medically required time off for pregnancy and childbirth (it may be unpaid). Many states have laws requiring employers to provide a safe, private place for lactating employees to express breast milk during their breaks. Employers may not advertise a requirement or preference for men or women applicants. The courts have found sexual harassment on the job to be a form of unlawful sex discrimination as well.
Employers may not discriminate against employees or applicants because they wear religiously required garments or head coverings. Examples include the wearing of a burqa, yarmulke or Sikh turban. Employers must make reasonable accommodations for religious practices, such as allowing a Muslim employee to pray during his or her breaks or adjusting the work schedule of an Orthodox Jewish employee to allow him or her to leave early enough on Friday afternoon to arrive home prior to the start of the Sabbath.
Employers may not discriminate against an employee or applicant because he or she has a disability, is regarded as having a disability or has a record of a disability. Thus, an employer may not refuse to hire an employee because he or she is in a wheelchair, appears to have a speech impediment or exhibits mannerisms that may suggest mental retardation. Employers must make reasonable disability accommodations both in the application process and after hire. For example, if an employee with a disability can perform the “essential functions” of a job, the employer may be required to remove marginal job responsibilities that an employee is unable to perform. Generally, deaf employees must be permitted to use a sign language interpreter and blind employees must be allowed to use a service animal at work.
Employees may not be disciplined or terminated for reporting or denouncing unlawful discrimination or harassment. For example, an employee complaining of being sexual harassed by a supervisor should not have his work schedule or duties changed to remove him from being a subordinate of that supervisor. Doing so may subject an employer to liability for unlawful sex discrimination. Instead, the supervisor’s assignment or hours should be changed.
If you’ve been discriminated against for any reason contact our attorneys today and see if you have a case.