Employment discrimination law in the United States

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Employment discrimination law in the United States derives from the common law, and a collection of state and federal laws, particularly the Civil Rights Act 1964, as well as by ordinances of counties and municipalities. Only discrimination based on certain characteristics (protected categories) is illegal. The United States Constitution prohibits discrimination by federal and state governments. 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. Federal law prohibits discrimination in a number of departments, including recruiting, hiring, job evaluations, promotion policies, training, compensation and disciplinary action. State laws often extend protection to additional categories or employers.

Under Federal law, employers generally cannot discriminate against employees on the basis of:

Constitutional basis[edit source | edit]

The United States Constitution does not directly address employment discrimination, but its prohibitions on discrimination by the federal government have been held to protect federal government employees.

The Fifth Amendment to the United States Constitution and Fourteenth Amendment to 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 the Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. In the employment context, these Constitutional provisions would limit the right 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. As both Due Process and Equal Protection Clauses are passive, the clause that empowers Congress to pass anti-discrimination bills (so they are not unconstitutional under Tenth Amendment) is Section 5 of Fourteenth Amendment.

Employment discrimination or harassment in the private sector is not unconstitutional, because Federal and most State Constitutions do not expressly give their respective government the power to enact civil rights laws that apply to the private sector. The Federal government's authority to regulate a private business, including civil rights laws, stems from their power to regulate all commerce between the States. Some State Constitutions do expressly afford some protection from public and private employment discrimination, such as Article I of the California Constitution. However, most State Constitutions only address discriminatory treatment by the government, including a public employer.

Absent of a provision in a State Constitution, State civil rights laws that regulate the private sector are generally Constitutional under the "police powers" doctrine or the power of a State to enact laws designed to protect public health, safety and morals. All States must adhere to the Federal Civil Rights laws, but States may enact civil rights laws that offer additional employment protection.

For example, some State civil rights laws offer protection from employment discrimination on the basis of sexual orientation, gender identity or political affiliation, even though such forms of discrimination are not yet covered in federal civil rights laws.

Federal laws[edit source | edit]

Federal law governing employment discrimination has developed over time.

The Equal Pay Act amended the Fair Labor Standards Act in 1963. 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 jobs 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.[citation needed]

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. 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.[3] A related statute, the Family and Medical Leave Act, sets requirements governing leave for pregnancy and pregnancy-related conditions.[11]

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.[6]

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.[12] It requires affirmative action as well as non-discrimination.[12] Section 504 requires reasonable accommodation, and Section 508 requires that electronic and information technology be accessible to disabled employees.[12]

The Black Lung Benefits Act of 1973 prohibits discrimination by mine operators against miners who suffer from "black lung disease" (pneumoconiosis).[13]

The Bankruptcy Reform Act of 1978 prohibits employment discrimination on the basis of bankruptcy or bad debts.[8]

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.[14]

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 a physical or mental handicap and requires employers to make reasonable accommodations for disabled workers. The type of discrimination prohibited is broader than that explicitly outlined by Title VII. The ADA also places an affirmative requirement on employers to reasonably accommodate a disabled employee in the performance of his or her job unless the employer can show that undue hardship will result. A qualified individual with a disability is a person who is "substantially limited" in one or more major life activities.[4]

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.[15][16]

The Genetic Information Nondiscrimination Act of 2008 bars employers from using individuals' genetic information when making hiring, firing, job placement, or promotion decisions.[9]

The proposed Employment Non-Discrimination Act would ban discrimination on the basis of sexual orientation or gender identity.[17]

State law[edit source | edit]

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 protected categories not included in federal law. Age is included as well, since federal law only covers workers over 40.

State or territorySexual orientationGender identityMarital statusMedical conditionPolitical affiliationMilitary discharge statusAgeFamilial statusPublic assistance statusUse of lawful product
Alabama AlabamaNo[18]No[18]Yes (40+)[19]
Alaska AlaskaNo[20]No[20]Yes[21]Yes (unknown age range)[21]Yes (parenthood)[21]
Arizona ArizonaNo[22]No[22]
Arkansas ArkansasNo[23]No[23]
California CaliforniaYes[24]Yes (included under sex)[25]Yes[24]Yes[24]Yes (40+)[24]
Colorado ColoradoYes[26]Yes (included under sexual orientation)[25]Yes (unknown age range)[27]Yes (any lawful activity)[27]
Connecticut ConnecticutYes[28]Yes (included under sex by ruling)[28]Yes[29]Yes (unknown age range)[29]
Delaware DelawareYes[30]Yes[30]Yes[31]Yes (40+)[31]
Washington, D.C. District of ColumbiaYes[32]Yes (gender identity or expression)[25]Yes (including domestic partnership)[33]Yes[33]Yes (18+)[33][34]"family responsibilities", parenthood under "marital status"[33]
Florida FloridaNo[35] ? (in some cases under disability)[35]Yes[36]Yes (unknown age range)[36]
Georgia (U.S. state) GeorgiaNo[37]No[37]Yes (40-70)[38]
Hawaii HawaiiYes[39]No[40]Yes[39]Yes (unknown age range)[39]
Idaho IdahoNo[41]No[41]Yes (40+)[42]
Illinois IllinoisYes[43]Yes (included under sexual orientation)[43]Yes[44]Yes ("unfavorable discharge from military service")[44]Yes (40+)[44]
Indiana IndianaNo[45]No[45]Yes (40-75)[46]use of tobacco[47]
Iowa IowaYes[48]Yes[48]Yes (18+ or legal adult)[49]
Kansas KansasNo[50]No[50]Yes (18+)[51]
Kentucky KentuckyNo[52]No[52]Yes (40+)[53](smoker/nonsmoker)[53]
Louisiana LouisianaNo[54]No[54]"sickle cell trait"[55]Yes (40+)[56][57]
Maine MaineYes[58]Yes (included under sexual orientation)[58]Yes (unknown age range)[59]
Maryland MarylandYes[60]No[60]Yes[61]Yes (unknown age range)[61]
Massachusetts MassachusettsYes[62]Yes (under sex or disability)[62]Yes (>40)[63][64]
Michigan MichiganNo[65]No[65]Yes[66]Yes[66]
Minnesota MinnesotaYes[67]Yes (included under sexual orientation)[25]Yes[68]Yes (over age of majority)[68]Yes[68]
Mississippi MississippiNo[69]No[69]
Missouri MissouriNo[70]No[70]Yes (40-70)[71]
Montana MontanaNo[67]No[67]Yes[72]Yes[72]
Nebraska NebraskaNo[73]No[73]Yes[74]Yes (40+)[74]
Nevada NevadaYes[75]Yes[75]Yes (40+)[76]Yes[76]
New Hampshire New HampshireYes[77]No[77]Yes[78]Yes (which ages?)[78]
New Jersey New JerseyYes (affectional or sexual orientation)[79]Yes (gender identify or expression)[25]Yes (and civil union status, and domestic partnership status)[79]"atypical hereditary cellular or blood trait"[79]Yes (18-70)[79]Yes[79]
New Mexico New MexicoYes[80]Yes[25]Yes ("spousal affiliation")[81]"serious medical condition"[81]Yes (unknown age range)[81]
New York New YorkYes[82] ? (in some cases under sex)[83]Yes[82]"political activities"[84]Yes (18+)[82]Yes[84]
North Carolina North CarolinaNo[85]No[85](sickle cell or hemoglobin C trait)[86]Yes[87]
North Dakota North DakotaNo[88]No[88]Yes[89]Yes (40+)[89]Yes[89]Yes ("lawful activity")[89]
Ohio OhioNo[90]No[90]Yes (40+)[91]
Oklahoma OklahomaNo[92]No[92]Yes (40+)[93]
Oregon OregonYes[94]Yes[25]Yes[95]Yes (18+)[95]use of tobacco[95]
Pennsylvania PennsylvaniaNo[96]No[96]Yes (40+)[97]
Rhode Island Rhode IslandYes[98]Yes (gender identity or expression)[25]Yes (40+)[99]
South Carolina South CarolinaNo[100]No[100]Yes (40+)[101]
South Dakota South DakotaNo[102]No[102]
Tennessee TennesseeNo[103]No[103]Yes (40+)[104]
Texas TexasNo[105]No[105]Yes (40+)[106]
Utah UtahNo[107] (protected in Salt Lake City only)[108]No[107] (protected in Salt Lake City only)[108]Yes (40+)[109]
Vermont VermontYes[110]Yes[25]Yes (18+)[111]
Virginia VirginiaNo[112]No[112]Yes (40+)[113]
Washington (state) WashingtonYes[114]Yes (included under sexual orientation)[25]Yes[115]Hepatitis C[116][117]Yes (40+)[115][118]
West Virginia West VirginiaNo[119]No[119]Yes (40+)[120]
Wisconsin WisconsinYes[121]No[121]Yes[122]Yes[123]Yes (40+)[124]Yes[125]
Wyoming WyomingNo[126]No[126]Yes (40+)[127]
Guam GuamYes (40+)[128][129]
Puerto Rico Puerto RicoYes (political affiliation or ideology)[130]Yes (legal working age+)[130][131]
United States Virgin Islands US Virgin IslandsYes (unknown age range)[132]
State or territorySexual orientationGender identityMarital statusMedical conditionPolitical affiliationMilitary discharge statusAgeFamilial statusPublic assistance statusUse of lawful product

In addition,

Government employees[edit source | edit]

Employees of federal and state governments have additional protections against employment discrimination.

The Civil Service Reform Act of 1978 prohibits discrimination in federal employment on the basis of conduct that does not affect job performance. The Office of Personnel Management has interpreted this as prohibiting discrimination on the basis of sexual orientation.[134] In June 2009, it was announced that the interpretation would be expanded to include gender identity.[135]

Exceptions[edit source | edit]

Bona fide occupational qualifications[edit source | edit]

Employers are generally allowed to consider characteristics that would otherwise be discriminatory if they are bona fide occupational qualifications (BFOQ). For example, a manufacturer of men's clothing may lawfully advertise for male models.

Religious organizations[edit source | edit]

Some anti-discrimination laws make exceptions for religious organizations. Religious organizations may be exempted entirely for certain categories, or may be allowed exceptions for certain types of positions.

Military[edit source | edit]

The United States Army excludes women from specialties, positions, and units (battalion size or smaller) that routinely engage in direct combat.[136]

Unintentional discrimination[edit source | edit]

Employment practices that do not directly discriminate against a protected category may still be illegal if they produce a disparate impact on members of a protected group. Title VII of the Civil Rights Act of 1964 prohibits employment practices that have a discriminatory impact, unless they are related to job performance.

The Act requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and, if, as here, an employment practice that operates to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding the employer's lack of discriminatory intent.[137]

Height and weight requirements have been identified by the EEOC as having a disparate impact on national origin minorities.[138]

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.[citation needed]

Enforcing entities[edit source | 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.[139] The Commission was established by the Civil Rights Act of 1964.[140] Its enforcement provisions are contained in section 2000e-5 of Title 42,[141] and its regulations and guidelines are contained in Title 29 of the Code of Federal Regulations, part 1614.[142] 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.[143]

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.[144]

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.[12]

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.[145]

State Fair Employment Practices (FEP) offices take the role of the EEOC in administering state statutes.[143]

See also[edit source | edit]

References[edit source | edit]

  1. ^ a b c d e Title VII of the Civil Rights Act of 1964
  2. ^ a b The Equal Pay Act of 1963
  3. ^ a b Pregnancy Discrimination Act
  5. ^ Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS
  6. ^ a b The Age Discrimination in Employment Act of 1967
  7. ^ Uniformed Services Employment and Reemployment Rights Act of 1994
  8. ^ a b 11 U.S.C. § 525
  9. ^ a b [1]
  10. ^ 8 U.S.C. § 1324b
  11. ^ Family and Medical Leave Act
  12. ^ a b c d A Guide to Disability Rights Laws
  13. ^ 30 USC Sec. 938
  14. ^ Summary of Immigration Reform and Control Act of 1986
  15. ^ § 1981. Equal rights under the law
  16. ^ § 1981a. Damages in cases of intentional discrimination in employment
  17. ^ Employment Non-Discrimination Act (ENDA)
  18. ^ a b Alabama Non-Discrimination Law
  19. ^ Code of Alabama 25-1-21
  20. ^ a b Alaska Non-Discrimination Law
  21. ^ a b c AS 18.80.220. Unlawful Employment Practices; Exception.
  22. ^ a b Arizona Non-Discrimination Law
  23. ^ a b Arkansas Non-Discrimination Law
  24. ^ a b c d Fair Employment and Housing Act Description
  25. ^ a b c d e f g h i j Scope of Explicitly Transgender-Inclusive Discrimination Laws 
  26. ^ Colorado Non-Discrimination Law
  27. ^ a b Colorado Civil Rights Division 2008 Statutes
  28. ^ a b Connecticut Non-Discrimination Law
  29. ^ a b Chapter 814c Sec. 46a-60
  30. ^ a b Delaware Non-Discrimination Law
  31. ^ a b Delaware Code Title 19 Chapter 7 Subchapter 2
  32. ^ D.C. Non-Discrimination Law
  33. ^ a b c d e District of Columbia Human Rights Act of 1977; Prohibited Acts of Discrimination
  34. ^ District of Columbia Human Rights Act of 1977; Table of Contents, General Provisions
  35. ^ a b Florida Non-Discrimination Law
  36. ^ a b Florida Statutes Chapter 760.10
  37. ^ a b Georgia Non-Discrimination Law
  38. ^ Georgia Fair Employment Practices Act
  39. ^ a b c Hawaii Rev Statutes 378-2
  40. ^ Hawaii Non-Discrimination Law
  41. ^ a b Idaho Non-Discrimination Law
  42. ^ Idaho Commission on Human Rights: Age Discrimination"
  43. ^ a b Illinois Non-Discrimination Law
  44. ^ a b c Illinois Human Rights Act
  45. ^ a b Indiana Non-Discrimination Law
  46. ^ Indiana Code 22-9-2
  47. ^ Indiana Code 22-5-4
  48. ^ a b Iowa Non-Discrimination Law
  49. ^ Iowa Code 216.6
  50. ^ a b Kansas Non-Discrimination Law
  51. ^ Kansas Age Discrimination in Employment Act
  52. ^ a b Kentucky Non-Discrimination Law
  53. ^ a b Kentucky Revised Statutes 344.040
  54. ^ a b Louisiana Non-Discrimination Law
  55. ^ Louisiana Revised Statutes 23:352
  56. ^ Louisiana Revised Statutes 23:312
  57. ^ Louisiana Revised Statutes 23:311
  58. ^ a b Maine Non-Discrimination Law
  59. ^ Maine Revised Statutes, Title 5, Chapter 337
  60. ^ a b Maryland Non-Discrimination Law
  61. ^ a b Annotated Code of Maryland 49B.16
  62. ^ a b Maryland Non-Discrimination Law
  63. ^ M.G.L. 151B §4
  64. ^ M.G.L 151B §1
  65. ^ a b Michigan Non-Discrimination Law
  67. ^ a b c Minnesota Non-Discrimination Law
  68. ^ a b c Minnesota Statutes, section 363A.08
  69. ^ a b Mississippi Non-Discrimination Law
  70. ^ a b Missouri Non-Discrimination Law
  71. ^ § 213.055 R.S.Mo.
  72. ^ a b Montana Code Annotated 49-2-303
  73. ^ a b Nebraska Non-Discrimination Law
  74. ^ a b Nebraska Fair Employment Practices Act
  75. ^ a b Nevada Non-Discrimination Law
  76. ^ a b NRS 613:310-350
  77. ^ a b New Hampshire Non-Discrimination Law
  78. ^ a b New Hampshire RSA 354-A:7
  79. ^ a b c d e New Jersey Law Against Discrimination (N.J.S.A. 10:5-12)
  80. ^ New Mexico Non-Discrimination Law
  81. ^ a b c New Mexico Code Section 28-1-7
  82. ^ a b c New York State Executive Law, Article 15, Section 296
  83. ^ New York Non-Discrimination Law
  84. ^ a b New York Labor Law Section 201-d - Discrimination Against The Engagement In Certain Activities
  85. ^ a b North Carolina Non-Discrimination Law
  86. ^ N.C. Gen. Stat. § 95‑28.1
  87. ^ N.C. Gen. Stat. § 95‑28.2
  88. ^ a b North Dakota Non-Discrimination Law
  89. ^ a b c d North Dakota Human Rights Act
  90. ^ a b Ohio Non-Discrimination Law
  91. ^ Ohio Code § 4112
  92. ^ a b Oklahoma Non-Discrimination Law
  93. ^ Oklahoma Human Rights Commission
  94. ^ Oregon Non-Discrimination Law
  95. ^ a b c Oregon Revised Statutes, Chapter 659A
  96. ^ a b Pennsylvania Non-Discrimination Law
  97. ^ Laws Administered by the Pennsylvania Human Rights Commission
  98. ^ Rhode Island Non-Discrimination Law
  99. ^ Fair Employment Practices
  100. ^ a b South Carolina Non-Discrimination Law
  101. ^ South Carolina Human Affairs Law
  102. ^ a b South Dakota Non-Discrimination Law
  103. ^ a b Tennessee Non-Discrimination Law
  104. ^ Tennessee Human Rights Act
  105. ^ a b Texas Non-Discrimination Law
  106. ^ Texas Labor Code Chapter 21
  107. ^ a b Utah Non-Discrimination Law
  108. ^ a b Salt Lake City adopts pro-gay statutes -- with LDS Church support
  109. ^ Utah Code 34A-5-106
  110. ^ Vermont Non-Discrimination Law
  111. ^ a b Vermont Fair Employment Practices Act
  112. ^ a b Virginia Non-Discrimination Law
  113. ^ Virginia Human Rights Act
  114. ^ Washington Non-Discrimination Law
  115. ^ a b RCW 49.60.180 Unfair practices of employers.
  116. ^ RCW 49.60.172 Unfair practices with respect to HIV or hepatitis C infection.
  117. ^ RCW 49.60.174 Evaluation of claim of discrimination — Actual or perceived HIV or hepatitis C infection.
  118. ^ RCW 49.44.090 Unfair practices in employment because of age of employee or applicant — Exceptions.
  119. ^ a b West Virginia Non-Discrimination Law
  120. ^ West Virginia Human Rights Act
  121. ^ a b Wisconsin Non-Discrimination Law
  122. ^ Wis. Stats. Chapter 111.36
  123. ^ Wis. Stats. 111.355
  124. ^ Wis. Stats. 111.33
  125. ^ Wis. Stats. 111.35
  126. ^ a b Wyoming Non-Discrimination Law
  127. ^ Wyoming Code 27-9-105
  128. ^ 22 Guam Code Ann. Chapter 3
  129. ^ 22 Guam Code Ann. Chapter 5
  130. ^ a b Puerto Rico Laws 29-I-7-146
  131. ^ Puerto Rico Laws PR 29-I-7-151
  132. ^ Virgin Islands Code on Employment Discrimination § 451
  134. ^ Addressing Sexual Orientation Discrimination In Federal Civilian Employment: A Guide to Employee's Rights
  135. ^ New Protections for Transgender Federal Workers
  136. ^ Assessing the Assignment Policy for Army Women
  137. ^ GRIGGS v. DUKE POWER CO., 401 U.S. 424 (1971)
  138. ^ Shaping Employment Discrimination Law
  139. ^ Federal Equal Employment Opportunity (EEO) Laws
  140. ^ Pre 1965: Events Leading to the Creation of EEOC
  141. ^ § 2000e–5. Enforcement provisions
  143. ^ a b Filing a Charge of Employment Discrimination
  144. ^ The Rehabilitation Act of 1973, Section 503
  145. ^ An Overview of the Office of Special Counsel for Immigration-Related Unfair Employment Practices

External links[edit source | edit]