Under federal law, employers may not discriminate in the workplace on the basis of age, disability, pregnancy, race, national origin, religion, gender and sexual orientation. Title VII of the Civil Rights Act prohibits employers from treating employees differently in hiring, firing or other terms and conditions of employment. Further, it is illegal for employers to retaliate against an employee reporting (or threatening to report) discrimination. Additionally, there are various state and local laws that also protect employees against discrimination. If you have concerns about workplace discrimination, or want to learn more about the specific state laws that apply to you, one of our team of experienced employment attorneys can help.
I am an employee, how do I know if I am experiencing discrimination at work?
Generally, federal discrimination laws apply if your employer has at least 15 employees (20 employees for age discrimination) or is a labor union or an employment agency. State and local discrimination laws usually apply to smaller employers. In general, to bring a discrimination claim under federal law, you must be a current or former employee, a job applicant or a participant in a training program or apprenticeship. Independent contractors generally do not usually qualify as employees under federal law, and may not qualify under state or local laws.
- Is your workplace a "hostile" environment?
Hostile work environment harassment under federal law occurs when an employee is subject to unwelcome verbal or physical conduct related to his or her age, disability, pregnancy, race, national origin, religion, gender and sexual orientation. Unlawful conduct includes offensive, humiliating, abusive or threatening remarks and inappropriate physical contact. Hostile work environment claims are typically based on multiple acts that cumulatively alter the employee's conditions of employment, although it is possible to base a valid claim on a single incident if it is sufficiently severe.
- Is your pay lower than a colleague's pay who performs the same job as you?
Under Title VII, it is illegal to pay an employee less than another based on their age, disability, pregnancy, race, national origin, religion, gender and sexual orientation. Further, under the Equal Pay Act, men and women must be paid the same compensation for equal work. "Equal" work does not mean identical jobs; rather, they must be "substantially equal" in overall job content. In order to be considered substantially equal, the job duties must be "closely related" or "very much alike." Thus, even with minor differences in the job title and duties, or the skill, effort, or responsibility required for the jobs, your employer is still required to pay you equal wages. If there is an inequality in wages between people of different sexes who perform substantially equal jobs, employers must raise wages to equalize pay (meaning that employers may not reduce anyone's salary to equalize pay). Also, in certain states like New York, it is illegal for an employer to ask you questions about your salary history.
- Were you denied time off for a family-related reason?
The Family Medical Leave Act (FMLA) is a federal statute that requires employers to provide qualifying employees with up to 12 weeks of unpaid leave per year for family or personal medical reasons. The FMLA also guarantees job protection for employees returning from the leave period. The FMLA applies only to qualifying employers and employees. To qualify, private sector employers must have 50 or more employees who work within 75 miles of the place of employment. Public agencies and elementary and secondary schools are also considered qualifying employers, regardless of the number of employees. Employees must have worked for the employer at least 12 months, and for a minimum of 1250 hours during the past 12 months. The 12 months of employment do not have to be consecutive. If these circumstances apply, and you were denied leave (1) for birth and care of your newborn child, (2) to bond with your newly placed foster child or adopted child, (3) to care for a spouse, child or parent with a serious health condition, (4) to take medical leave for your own serious health condition or, (5) to handle matters arising out of a family member's call to active duty in the military, this is illegal and discriminatory under the FMLA.
- Did you report discrimination or harassment and experience a negative reaction or response?
Workplace retaliation generally occurs when an employer punishes their employee for whistleblowing or reporting a violation of a labor law, either to a supervisor or to a relevant government agency. Once an employee reports discrimination or harassment, among other possible violations, retaliation can take many forms. For example, an employee could be retaliated against after reporting illegal discrimination: by being fired; by having their wages or hours reduced; by being assigned to less favorable shifts; by being subject to intense supervision that is not standard for employees at the workplace; or by being demoted or passed up for a promotion that the employee otherwise deserved. Most states, including New York, California and Florida, have additional state laws to protect employees against retaliation.
I am an employer, how can I prevent discrimination at my company?
Employers must take care that the company complies with federal, state and local labor laws around discrimination. Our attorneys have extensive experience helping employers develop policies to minimize discrimination in the workplace. For starters, employers can help prevent discrimination by maintaining an up-to-date and carefully drafted employee handbook, to put employees on notice of the company's nondiscrimination policy. A handbook that includes a robust antidiscrimination policy may offer protection in a lawsuit by demonstrating that employees were on notice of the rules, and you - as the employer - had appropriate internal complaint and investigation procedures. Employment law training for employees and managers is also highly recommended.
Conclusion
Where a violation of workplace discrimination laws has occurred, the first major step is to file a charge with the Equal Employment Opportunity Commission or a similar state or local agency. Navigating this process is made much easier with the help of a seasoned employment attorney. When disputes arise, we are strong advocates on behalf of employers and employees to resolve conflicts effectively. Contact us for next steps.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
