Employers can also run into legal issues for treating pregnant women differently from other workers, especially when choosing not to hire simply because an applicant is pregnant. Retaliation claims have risen over the past decade and the courts recognize that retaliation and discrimination complaints often go hand-in-hand. This is because the common reaction from employers when workers complain about employment discrimination or harassment is some form of retaliatory action. Title VII requires that employers refrain from retaliating against workers involved in discrimination proceedings, against those who request time off to attend discrimination proceedings as well as against those who complain about discrimination.
Employees should be aware of next steps to take when retaliation is a factor. Disney and Abercrombie are two companies to recently feel the heat due to claims of Title VII discrimination based on religious dress.
These cases involved each employer asking workers to change their religious attire or stating that the attire is unsuitable for company image. In each case, courts have ruled that the companies did indeed violate Title VII, which prohibits discrimination based on religious beliefs and requires employers to reasonably accommodate religious practices, such as wearing special attire at work, unless doing so would result in undue hardship.
Though still the norm, paying women less than men is an illegal employment practice according to the Equal Pay Act EPA. As noted in a previous post , women still earn less than men on average, receiving only 77 to 84 cents on the dollar compared to men. Although the wage gap has narrowed since women began entering the workforce in large numbers during WWII, equal pay for women is still a hot issue in employment law.
Though the use of criminal background checks in employment has become a widespread practice, its prominence in the workplace is currently being questioned.
Challenges to the use of criminal background checks have gained support from the Equal Employment Opportunities Commission, which notes that background checks often lead to racial discrimination.
New federal legislation is also in the works to prevent credit checks in employment due to their tendency to cause discrimination against women, minorities and underprivileged Americans. Punitive damages also may be available if an employer acted with malice or reckless indifference. Punitive damages are not available against the federal, state or local governments. In cases concerning reasonable accommodation under the ADA, compensatory or punitive damages may not be awarded to the charging party if an employer can demonstrate that "good faith" efforts were made to provide reasonable accommodation.
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case.
The Commission is composed of five Commissioners and a General Counsel appointed by the President and confirmed by the Senate. Commissioners are appointed for five-year staggered terms; the General Counsel's term is four years.
The President designates a Chair and a Vice-Chair. The Chair is the chief executive officer of the Commission. The Commission has authority to establish equal employment policy and to approve litigation. The General Counsel is responsible for conducting litigation. EEOC carries out its enforcement, education and technical assistance activities through 53 field offices serving every part of the nation. EEOC provides a range of informational materials and assistance to individuals and entities with rights and responsibilities under EEOC-enforced laws.
Most materials and assistance are provided to the public at no cost. For information on educational and other assistance available, contact the nearest EEOC office by calling: voice or TTY. The EEOC has a number of fact sheets and other publications available free of charge. These may be downloaded from the Publications page. Discriminatory Practices II. Under Title VII, the ADA, GINA, and the ADEA, it is illegal to discriminate in any aspect of employment, including: hiring and firing; compensation, assignment, or classification of employees; transfer, promotion, layoff, or recall; job advertisements; recruitment; testing; use of company facilities; training and apprenticeship programs; fringe benefits; pay, retirement plans, and disability leave; or other terms and conditions of employment.
Discriminatory practices under these laws also include: harassment on the basis of race, color, religion, sex, national origin, disability, genetic information, or age; retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices; employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual's genetic information; and denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability.
Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group. Title VII Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.
National Origin Discrimination It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule is necessary, employees must be informed when English is required and the consequences for violating the rule.
Religious Accommodation An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship. Sex Discrimination Title VII's broad prohibitions against sex discrimination specifically cover: Sexual Harassment - This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment.
The "hostile environment" standard also applies to harassment on the bases of race, color, national origin, religion, age, and disability. Pregnancy Based Discrimination - Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions. Discrimination because of sexual orientation or transgender status.
Age Discrimination in Employment Act The ADEA's broad ban against age discrimination also specifically prohibits: statements or specifications in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification BFOQ ; discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs; and denial of benefits to older employees.
An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. Equal Pay Act The EPA prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.
Note that: Employers may not reduce wages of either sex to equalize pay between men and women. A violation may also occur where a labor union causes the employer to violate the law. It is necessary to understand several important ADA definitions to know who is protected by the law and what constitutes illegal discrimination: Individual with a Disability An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having a disability.
Reasonable Accommodation Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters.
Undue Hardship An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer's business. Prohibited Inquiries and Examinations Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability.
Drug and Alcohol Use Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use. Who Can File a Charge of Discrimination? Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with EEOC. In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity.
How Is a Charge of Discrimination Filed? A charge may be filed by mail or in person at the nearest EEOC office. Individuals may consult their local telephone directory U. It is illegal for an employer to discriminate against an employee in the payment of wages or employee benefits on the bases of race, color, religion, sex including gender identity, sexual orientation, and pregnancy , national origin, age 40 or older , disability or genetic information.
Employee benefits include sick and vacation leave, insurance, access to overtime as well as overtime pay, and retirement programs. For example, an employer many not pay Hispanic workers less than African-American workers because of their national origin, and men and women in the same workplace must be given equal pay for equal work.
In some situations, an employer may be allowed to reduce some employee benefits for older workers, but only if the cost of providing the reduced benefits is the same as the cost of providing benefits to younger workers. An employer may not take into account a person's race, color, religion, sex including gender identity, sexual orientation, and pregnancy , national origin, age 40 or older , disability or genetic information when making decisions about discipline or discharge.
For example, if two employees commit a similar offense, an employer many not discipline them differently because of their race, color, religion, sex including gender identity, sexual orientation, and pregnancy , national origin, age 40 or older , disability or genetic information. When deciding which employees will be laid off, an employer may not choose the oldest workers because of their age.
It is illegal for an employer to give a negative or false employment reference or refuse to give a reference because of a person's race, color, religion, sex including gender identity, sexual orientation, and pregnancy , national origin, age 40 or older , disability or genetic information. The law requires that an employer provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.
A reasonable accommodation is any change in the workplace or in the ways things are usually done to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Reasonable accommodation might include, for example, providing a ramp for a wheelchair user or providing a reader or interpreter for a blind or deaf employee or applicant.
The law requires an employer to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause difficulty or expense for the employer. This means an employer may have to make reasonable adjustments at work that will allow the employee to practice his or her religion, such as allowing an employee to voluntarily swap shifts with a co- worker so that he or she can attend religious services.
It is illegal for a training or apprenticeship program to discriminate on the bases of race, color, religion, sex including gender identity, sexual orientation, and pregnancy , national origin, age 40 or older , disability or genetic information.
For example, an employer may not deny training opportunities to African-American employees because of their race. In some situations, an employer may be allowed to set age limits for participation in an apprenticeship program. It is illegal to harass an employee because of race, color, religion, sex including gender identity, sexual orientation, and pregnancy , national origin, age 40 or older , disability or genetic information.
It is also illegal to harass someone because they have complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Harassment can take the form of slurs, graffiti, offensive or derogatory comments, or other verbal or physical conduct.
Sexual harassment including unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature is also unlawful. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal if it is so frequent or severe that it creates a hostile or offensive work environment or if it results in an adverse employment decision such as the victim being fired or demoted.
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. Harassment outside of the workplace may also be illegal if there is a link with the workplace. For example, if a supervisor harasses an employee while driving the employee to a meeting.
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