Employment discrimination refers to employment practices that are prohibited by law such as bias in hiring, promotion, job assignment, termination, compensation, and various types of harassment.
Overview
Laws prohibit employers from discriminating on the basis of race, sex, religion, national origin, physical or mental disability, or age. There is also a growing body of law preventing or occasionally justifying employment discrimination based on sexual orientation. The main body of employment discrimination laws in the United States is composed of federal and state statutes.
Employment discrimination law does not prohibit only intentional discrimination. It is also illegal for employers to use neutral practices that inadvertently produce a disparate impact on individuals of a particular race or sex, unless for Bona Fide Occupational Qualification (BFOQ) reasons. Such practices include the use of standardized tests (which may harm minority applicants) or height (which may harm women) in the hiring process, unless these characteristics are required by the position. However, when defending against a disparate impact claim that alleges age discrimination, an employer does not need to demonstrate necessity; rather, it must simply show that its practice is reasonable.
The United States Constitution and some state constitutions provide additional protection where the employer is a governmental body or the government has taken significant steps to foster the discriminatory practice of the employer.
The Fifth Amendment to the United States Constitution and Fourteenth Amendment to the United States Constitution Amendments of the United States Constitution limit the power of the federal and state governments to discriminate. The Fifth amendment has an explicit requirement that the federal government not deprive individuals of “life, liberty, or property,” without due process of the law. It also contains an implicit guarantee that that the Fourteenth Amendment explicitly prohibits states from violating an individual’s rights of due process and equal protection. In the employment context, the right of equal protection limits the power of the state and federal governments to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group (such as a race or sex). Due process protection requires that government employees have a fair procedural process before they are terminated if the termination is related to a “liberty” (such as the right to free speech) or property interest. State constitutions may also afford protection from employment discrimination.
Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state statutes.
The Equal Pay Act amended the Fair Labor Standards Act in 1963. The Equal Pay Act prohibits paying wages based on sex by employers and unions. It does not prohibit other discriminatory practices bias in hiring. It provides that where workers perform equal work in jobs requiring “equal skill, effort, and responsibility and performed under similar working conditions,” they should be provided equal pay. The Fair Labor Standards Act applies to employees 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. It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. The Act prohibits discrimination based on race, color, religion, sex or national origin. This and a related statute, the Family and Medical Leave Act, regulate discrimination based on pregnancy, childbirth, and some medical conditions. It makes it illegal for employers to discriminate in hiring, discharging, compensation, or terms, conditions, and privileges of employment. Employment agencies may not discriminate when hiring or referring applicants. Labor organization are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin.
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 7, 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.
The Rehabilitation Act’s purpose is to “promote and expand employment opportunities in the public and private sectors for handicapped individuals,” through the elimination of discrimination and affirmative action programs. Employers covered by the act include agencies of the federal government and employers receiving federal contracts over $2500 or federal financial assistance. The U.S. Department of Labor enforces section 793 of the act which refers to employment under federal contracts. The U.S. Department of Justice enforces section 794 of the act which refers to organizations receiving federal assistance. The Equal Employment Opportunity Commission (EEOC) enforces the act against federal employees and individual federal agencies promulgate regulation pertaining to the employment of the disabled.
The Americans with Disabilities Act (ADA) was enacted to eliminate discrimination against those with handicaps. It prohibits discrimination based on a physical or mental handicap by employers and requires reasonable accommodation be made by employers for disabled workers. The type of discrimination prohibited is broader than that explicitly outlined by Title VII.
The Equal Employment Opportunity Commission (EEOC) interprets and enforces the Equal Pay Act, Age Discrimination in Employment Act, Title VII, Americans With Disabilities Act, and sections of the Rehabilitation Act. The Commission was established by Title VII. Its enforcement provisions are contained in section 2000e-5 of Title 42, and its regulations and guidelines are contained in Title 29 of the Code of Federal Regulations, part 1614.
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. A number of state statutes provide protection for individuals who are performing civil or family duties outside of their normal employment. State Fair Employment Practices (FEP) offices take the role of the EEOC for these statutes.
US jurisdictions prohibiting discrimination in public employment on the basis of gender identity and expression
The following information originally comes from http://transgenderlaw.org/ndlaws/index.htm
California
- Alameda County (includes provision of services)
- San José (also applies to city contractors)
Florida
Largo
Wilton Manors (also applies to city contractors)
Georgia
- Decatur
- Pine Lake
Indiana
- Statewide protection: http://intraa.tgcrossroads.org/connections/story/?iid=39&aid=956
Kentucky
- Statewide protection: http://gov.state.ky.us/pressreleases/2003/exordermay29.htm
New York
- Statewide protection: http://www.osc.state.ny.us/press/releases/apr03/execorder1.pdf
North Carolina
- Chapel Hill
Pennsylvania
- Statewide protection:
- http://www.oa.state.pa.us/oac/cwp/view.asp?A=351&Q=175843
- http://www.auditorgen.state.pa.us/about/eeopolicystatement.pdf
Texas
- Houston
Washington
- Bellingham
Wisconsin
- Dane County (also applies to county contractors)
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