Employment discrimination law in the United States
Employment discrimination law in the United States derives from the common law, and is codified in numerous state, federal, and local laws. These laws prohibit discrimination based on certain characteristics or "protected categories". The United States Constitution also prohibits discrimination by federal and state governments against their public employees. Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state law, including the Title VII of the Civil Rights Act of 1964. Federal law prohibits discrimination in a number of areas, including recruiting, hiring, job evaluations, promotion policies, training, compensation and disciplinary action. State laws often extend protection to additional categories or employers.
Under federal employment discrimination law, employers generally cannot discriminate against employees on the basis of race,[1] sex[1][2] (including sexual orientation and gender identity),[3] pregnancy,[4] religion,[1] national origin,[1] disability (physical or mental, including status),[5][6] age (for workers over 40),[7] military service or affiliation,[8] bankruptcy or bad debts,[9] genetic information,[10] and citizenship status (for citizens, permanent residents, temporary residents, refugees, and asylees).[11]
History of federal laws[edit]
Federal law governing employment discrimination has developed over time.
The Equal Pay Act amended the Fair Labor Standards Act in 1963. It is enforced by the Wage and Hour Division of the Department of Labor. [12] The Equal Pay Act prohibits employers and unions from paying different wages based on sex. It does not prohibit other discriminatory practices in hiring. It provides that where workers perform equal work in the corner requiring "equal skill, effort, and responsibility and performed under similar working conditions," they should be provided equal pay.[2] The Fair Labor Standards Act applies to employers engaged in some aspect of interstate commerce, or all of an employer's workers if the enterprise is engaged as a whole in a significant amount of interstate commerce.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in many more aspects of the employment relationship. "Title VII created the Equal Employment Opportunity Commission (EEOC) to administer the act". [12] It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. Title VII prohibits discrimination based on race, color, religion, sex or national origin. It makes it illegal for employers to discriminate based upon protected characteristics regarding terms, conditions, and privileges of employment. Employment agencies may not discriminate when hiring or referring applicants, and labor organizations are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin.[1] The Pregnancy Discrimination Act amended Title VII in 1978, specifying that unlawful sex discrimination includes discrimination based on pregnancy, childbirth, and related medical conditions.[4]
A related statute, the Family and Medical Leave Act, sets requirements governing leave for pregnancy and
pregnancy-related conditions.[13]
Executive Order 11246 in 1965 "prohibits discrimination by federal contractors and subcontractors on account of race, color, religion, sex, or national origin [and] requires affirmative action by federal contractors".[14]
The Age Discrimination in Employment Act (ADEA), enacted in 1968 and amended in 1978 and 1986, prohibits employers from discriminating on the basis of age. The prohibited practices are nearly identical to those outlined in Title VII, except that the ADEA protects workers in firms with 20 or more workers rather than 15 or more. An employee is protected from discrimination based on age if he or she is over 40. Since 1978, the ADEA has phased out and prohibited mandatory retirement, except for high-powered decision-making positions (that also provide large pensions). The ADEA contains explicit guidelines for benefit, pension and retirement plans.[7] Though ADEA is the center of most discussion of age discrimination legislation, there is a longer history starting with the abolishment of "maximum ages of entry into employment in 1956" by the United States Civil Service Commission. Then in 1964, Executive Order 11141 "established a policy against age discrimination among federal contractors".[15]
The Rehabilitation Act of 1973 prohibits employment discrimination on the basis of disability by the federal government, federal contractors with contracts of more than $10,000, and programs receiving federal financial assistance.[16] It requires affirmative action as well as non-discrimination.[16] Section 504 requires reasonable accommodation, and Section 508 requires that electronic and information technology be accessible to disabled employees.[16]
The Black Lung Benefits Act of 1972 prohibits discrimination by mine operators against miners who suffer from "black lung disease" (pneumoconiosis).[17]
The Vietnam Era Readjustment Act of 1974 "requires affirmative action for disabled and Vietnam era veterans by federal contractors".[14]
The Bankruptcy Reform Act of 1978 prohibits employment discrimination on the basis of bankruptcy or bad debts.[9]
The Immigration Reform and Control Act of 1986 prohibits employers with more than three employees from discriminating against anyone (except an unauthorized immigrant) on the basis of national origin or citizenship status.[18]
The Americans with Disabilities Act of 1990 (ADA) was enacted to eliminate discriminatory barriers against qualified individuals with disabilities, individuals with a record of a disability, or individuals who are regarded as having a disability. It prohibits discrimination based on real or perceived physical or mental disabilities. It also requires employers to provide reasonable accommodations to employees who need them because of a disability to apply for a job, perform the essential functions of a job, or enjoy the benefits and privileges of employment, unless the employer can show that undue hardship will result. There are strict limitations on when an employer can ask disability-related questions or require medical examinations, and all medical information must be treated as confidential. A disability is defined under the ADA as a mental or physical health condition that "substantially limits one or more major life activities."[5]
The Nineteenth Century Civil Rights Acts, amended in 1993, ensure all persons equal rights under the law and outline the damages available to complainants in actions brought under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the 1973 Rehabilitation Act.[19][20]
The Genetic Information Nondiscrimination Act of 2008 bars employers from using individuals' genetic information when making hiring, firing, job placement, or promotion decisions.[10]
The proposed US Equality Act of 2015 would ban discrimination on the basis of sexual orientation or gender identity.[21] As of June 2018, 28 US states do not explicitly include sexual orientation and 29 US states do not explicitly include gender identity within anti-discrimination statutes.
LGBT employment discrimination[edit]
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation or gender identity. This is encompassed by the law's prohibition of employment discrimination on the basis of sex. Prior to the landmark cases Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (2020), employment protections for LGBT people were patchwork; several states and localities explicitly prohibit harassment and bias in employment decisions on the basis of sexual orientation and/or gender identity, although some only cover public employees.[22] Prior to the Bostock decision, the Equal Employment Opportunity Commission (EEOC) interpreted Title VII to cover LGBT employees; the EEOC's determined that transgender employees were protected under Title VII in 2012,[23] and extended the protection to encompass sexual orientation in 2015.[24][25]
According to Crosby Burns and Jeff Krehely: "Studies show that anywhere from 15 percent to 43 percent of gay people have experienced some form of discrimination and harassment at the workplace. Moreover, a staggering 90 percent of transgender workers report some form of harassment or mistreatment on the job." Many people in the LGBT community have lost their job, including Vandy Beth Glenn, a transgender woman who claims that her boss told her that her presence may make other people feel uncomfortable.[26]
Almost half of the United States also have state-level or municipal-level laws banning the discrimination of gender non-conforming and transgender people in both public and private workplaces. A few more states ban LGBT discrimination in only public workplaces.[27] Some opponents of these laws believe that it would intrude on religious liberty, even though these laws are focused more on discriminatory actions, not beliefs. Courts have also identified that these laws do not infringe free speech or religious liberty.[28]
State statutes also provide extensive protection from employment discrimination. Some laws extend similar protection as provided by the federal acts to employers who are not covered by those statutes. Other statutes provide protection to groups not covered by the federal acts. Some state laws provide greater protection to employees of the state or of state contractors.
The following table lists categories not protected by federal law. Age is included as well, since federal law only covers workers over 40.
In addition,
Enforcing entities[edit]
The Equal Employment Opportunity Commission (EEOC) interprets and enforces the Equal Pay Act, Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Title I and V of the Americans With Disabilities Act, Sections 501 and 505 of the Rehabilitation Act, and the Civil Rights Act of 1991.[109] The Commission was established by the Civil Rights Act of 1964.[110] Its enforcement provisions are contained in section 2000e-5 of Title 42,[111] and its regulations and guidelines are contained in Title 29 of the Code of Federal Regulations, part 1614.[112] Persons wishing to file suit under Title VII and/or the ADA must exhaust their administrative remedies by filing an administrative complaint with the EEOC prior to filing their lawsuit in court.[113]
The Office of Federal Contract Compliance Programs enforces Section 503 of the Rehabilitation Act, which prohibits discrimination against qualified individuals with disabilities by federal contractors and subcontractors.[114]
Under Section 504 of the Rehabilitation Act, each agency has and enforces its own regulations that apply to its own programs and to any entities that receive financial assistance.[16]
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, which prohibits discrimination based on citizenship status or national origin.[115]
State Fair Employment Practices (FEP) offices take the role of the EEOC in administering state statutes.[113]