Discrimination on the Job Article

You and the Law: Employment Discrimination

Employers regularly make employment decisions regarding who gets hired, promoted, and fired.  Discrimination law prevents employers from making employment decisions based on certain personal characteristics. These personal characteristics are called “protected statuses.”

This papers explains unlawful discrimination, identifies those protected statuses, and guides victims of unlawful discrimination about what to do.

Civil Rights Act of 1964
The Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, sex, color, national origin, and religion (collectively referred to as protected statuses.) . Under Title VII of the Civil Rights Act, an employer cannot:

•    Take into consideration the race, sex, color, national origin, or religion when hiring, firing, or making any other employment decision such as wages paid, benefits offered, and assigning work.
•    Limit, segregate or classify job candidates or employees based on race, sex, color, national origin, or religion to take away employment opportunities.
•    Allow harassment because of the employee’s race, sex, color, national origin, and religion.

The Civil Rights Act of 1964 applies to employers who employ 15 or more employees.
Except  employers in Arizona with more than one employee must protect their employees from sexual harassment.

The law does not provide for special preferences for employees in these protected statuses.   Employers just cannot take into consideration these protected statuses when employers make employment decisions.  

Employers are required to make a reasonable accommodation for employees to observe their religious practices. A reasonable accommodation may be allowing an employee to temporarily change work hours or work schedule. This reasonable accommodation is based on the employee’s need to observe their religious practice and the employers need to run its business. 

If you need a reasonable accommodation to observe your religious practice, review your employer’s Equal Employment Opportunity or Anti-discrimination Policy to determine how you request a reasonable accommodation. If your employer does not have an EEO or Anti-discrimination Policy or you do not understand how to request a reasonable accommodation after reviewing the policy, speak with your supervisor or the HR department.         

Equal Pay Act of 1963
The Equal Pay Act of 1963 (“EPA”) prohibits an employer from paying an employee of one sex less than an employee of the opposite sex for:

•    Equal work requiring equal skill and effort.
•    Equal work requiring equal responsibility.
•    Equal work under the same or similar work conditions.

The EPA applies to all employers.
 
Pregnancy Discrimination Act of 1978
The Pregnancy Discrimination Act of 1967 (“PDA”) prevents employers from discriminating against a job candidate or employee based on pregnancy, childbirth, or medical condition. The PDA does not provide for special treatment based on pregnancy, childbirth, or medical condition.  The PDA only requires employers to treat pregnancy, childbirth, or medical conditions the same as other employees.

The PDA applies to employers who employ 15 or more employees.Other laws may provide protection for pregnant employees. For example, the Family Medical Leave Act provides job protection for limited time off for childbirth and bonding time with a newborn. The Fair Labor Standards Act provides break time for nursing mothers.

Age Discrimination in Employment Act of 1967
The Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful for an employer to discriminate against an individual who is forty years or older. Age over 40 is another protected status. Under the ADEA, an employer cannot :

•    Take into consideration age 40 or over when hiring, firing, or making any other employment decision such as wages paid, benefits offered, and promotional opportunities.  
•    Allow harassment because of an employee’s age over 40.

The Age Discrimination law applies to employers who employ more than 15 employees.
The law does not provide for special preferences for job candidates or employees age 40 or over. The law only says that employers must not take into consideration the protected status of age 40 or over when employers make employment decisions.  

The Americans with Disabilities Act of 1990
The Americans with Disabilities Act (ADA) of 1990 and the Americans with Disabilities Act as amended of 2008 (“ADAAA”) prohibits discrimination in employment against the disabled. Disability is another protected status.

Under the ADA and the ADAAA, an employer cannot:
•    Fail or refuse to hire a qualified individual with a disability because of the disability .
•    Fail to promote a qualified individual with a disability because of the disability .
•    Apply discriminatory terms or conditions to disabled individuals regarding wages. benefits or privileges of employment.
•    Limit, segregate, or classify disabled employees.
•    Exclude disabled employees from regular programs and activities that are available to non-disabled employees.
•    Refuse to provide reasonable accommodations for disabled employees.
•    Allow harassment because of an employee’s disability.

What is a Disability            
Not all health conditions are disabilities. For a health condition to be a protected disability the health condition must substantially limit one or major life activities or major bodily functions. Generally, a health condition that lasts for a short time, such as the flu, a cold, or even a sprained or broken bone is not a disability because these health conditions don’t last very long.
Caring for oneself, performing manual tasks, seeing, and hearing are examples of major life activities. Normal cell growth (cancer), digestive, bowel, and bladder functions are examples of major bodily functions.

If you do not know if your health condition is an ADA disability, you should speak with your supervisor or the HR department. 

A disabled candidate or employee is not automatically entitled to job protection.  The disabled candidate or employee must be able to perform the duties (the ADA calls this “essential functions”) of the job with or without reasonable accommodation.  A reasonable accommodation may be allowing an employee to change their work hours, provide assistance with heavy lifting or a special work space, or any other accommodation that is reasonable and would enable a disabled person to do their job.
  
If you have a disability and need a reasonable accommodation to do your job, review your employer’s Anti-discrimination Policy to determine how you request a reasonable accommodation. If your employer does not have an Anti-discrimination Policy or you do not understand how to request a reasonable accommodation after reviewing the policy, speak with your supervisor or the HR department.
 
The ADA applies to employers who employ 20 or more employees.    
       
Genetic Information Non-Disclosure Act of 1978
The Genetic Information Non-Disclosure Act (“GINA”) prevents an employer from making employment decisions based upon a job candidate’s or employee’s genetic information.  Genetic information is information about the job candidate’s or employee’s past medical history or the job candidate’s or employee’s family’s medical history. 

In other words, an employer cannot use any employee’s past medical history to discriminate against the employee as long as the employee can safely perform the job now. The employer also cannot discriminate against the employee because an illness or disease runs in the family.

An employer also cannot allow harassment because of an employee’s genetic information.
Genetic information is another protected status.
 
GINA applies to employers who employ 15 or more employees. 
 
Discrimination Based on Sexual Orientation or Transgender Identity
Neither, current federal nor Arizona state law specifically identifies sexual orientation or transgender identity as  protected statuses for employment matters.
 
The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for administering federal discrimination law. The EEOC takes the position that sexual orientation and transgender identity discrimination is a form of unlawful sex discrimination.

If you believe an employer has discriminated against you because of your sexual orientation or transgender identity, read the “What to Do” section located towards the bottom of this article (page 6).

There is some employment protection for sexual orientation and transgender identity.

There are currently 5 cities in Arizona that provide some employment protection for sexual orientation or transgender identity.  These 5 cities are Phoenix, Tucson, Flagstaff, Tempe, and Scottsdale. For more information about these city’s ordinances, please refer to this document - http://www.azlawhelp.org/documents/LGBTQ Workplace Laws Chart Final.pdf

Executive orders are not the same as a law.  While not technically “law” executive orders are just as enforceable as law.

There is an Arizona Executive Order that forbids Arizona state agencies from discriminating based on sexual orientation. The Order also forbids employees employed by the state of Arizona from sexual orientation harassment.

There also a federal Executive Order that prohibits the federal government from discriminating against job candidates and employees because of their sexual orientation.

There is another federal Executive Order that prohibits employers doing business with the federal government from discriminating against an individual because of their sexual orientation or gender identity.

Harassment
Discrimination law also recognizes two different types of unlawful harassment.  One is called Quid Pro Quo.  The other is called Hostile Work Environment.

Quid Pro Quo
“Quid pro quo” is a Latin term meaning “something for something.”  In the employment setting, “quid pro quo” most often means participate in some type of sexual behavior in exchange for employment.

If you are forced to participate in any type of sexual behavior to get your job, get a pay increase or other job benefits, or keep your job you are the victim of Quid Pro Quo harassment.
Quid Pro Quo Harassment also may apply to religion.   If you are forced to participate in any type of religious behavior to get your job, get a pay increase or other job benefits, or keep your job, you are the victim of Quid Pro Quo harassment bases on religion.

Hostile Work Environment
Being harassed in the workplace is wrong.  But only harassment based on the protected statuses described above can become Hostile Work Environment illegal discrimination.
The most common type of Hostile Work Environment harassment is sexual harassment.  However, if someone is harassing you because of any protected status that person is violating your rights.  For example, if someone is harassing you because of your race, sex, color, national origin, religion, age over 40, disability or genetic information you have a right to insist your employer make this harassment stop.

The law says that for bad behavior to be harassment, the behavior must be all of the following;
1.    Based on a protected status.
2.    Unwelcome – Not all bad behavior is harassment.  Employees may willing participate in the telling of jokes or comments about one or more of the protected statuses.  While this may or may not be right, a person’s voluntary participation in this type of behavior will not have a harassment claim because their voluntary behavior is “welcome,” and not “unwelcome” behavior..
3.    Unreasonable offensive – harassment law does not protect the hypersensitive person.  This means that if someone complains about sexually harassment if a co-worker smiles at them and cheerfully says “good morning” to them at the beginning of the day, that complaint would not be reasonable.
4.    Pervasive or severe– not all bad behavior is harassment.  The bad behavior must be a regular part of the work environment.  A one-time insulting comment about a person’s race or national origin or asking a co-worker out on a date will not be harassment because that behavior is not a regular part of the work environment.

However, a sexual assault or an extremely crude and offensive statement about a person’s race or national origin could be unlawful harassment because of the severity of the bad behavior.Retaliation An employer cannot retaliate against an employee for complaining about unlawful harassment.  Retaliation can be firing or disciplining an employee for complaining. But, things much less serious than a termination or discipline are retaliation.  Retaliation can be cutting an employee’s pay, reassigning the employee to a different shift or assigning the employee hard work because of the employee’s complaint.

Employers also cannot retaliate against employee’s who participate in any investigation of a discrimination complaint.

If you feel you are the victim of retaliation, please read the What You Can Do section below.     
 
What You Can Do

Unlawful Harassment
Harassment law says the employer must stop any and all harassment based on protected statuses.  However, for your employer to stop this harassment, the employer needs to know you are the victim of harassment.

If you are the victim of harassment tell your employer about it.  Most employers have a Harassment Policy.  Use the complaint procedure in the Harassment Policy to report your concern.

If your employer does not have a Harassment Policy, report your concern to the people responsible for Human Resources in your company.

Remember, the employer must stop any and all harassment.  While you may choose to talk to your co-worker about the bad behavior, you never have to speak to the offending co-worker before telling your employer about the wrongful behavior.
   
If you are not satisfied with your employer’s response you can contact the Equal Employment Opportunity Commission or the Arizona Civil Rights Division to file a charge of discrimination. Here is their contact information.
   
Equal Employment Opportunity Commission
3300 West Central Avenue, Suite 690
Phoenix, AZ 85012
Telephone:(602) 640-5000 or 1-(800) 669-4000 or TTY 1-(800) 669-6820

Arizona Attorney General Civil Rights Division
1275 W. Washington Street
Phoenix, AZ 85007-2926
Telephone: (602) 542-5025 or

Arizona Civil Rights Division
400 West Congress, Suite 315
Tucson, AZ 85701-1720
Telephone: (520) 628-6504 or

Arizona Civil Rights Division
1000 Ainsworth Drive
Suite A-210
Prescott, AZ 86305-1610
Telephone: (928) 778-1265
You can also file a charge of discrimination on-line at this website by going to azag.gov.

You must file a harassment claim within 300 calendar days of the last incident of harassment.
However, if you work for an employer with less than 15 employees you must file a harassment claim within 180 calendar days of the last incident of harassment AND your claim must be filed with the Arizona Civil Rights Division.

Federal agency employees have a special rule to follow regarding how long one has to file a harassment claim.  You must contact a federal agency EEO counselor within 45 days of the last incident of harassment. The agency that you work in will provide you with the name and contact information of the EEO counselor.

Making it Right
If you feel an employer has used your protected status(es) against you when making an employment decision, talk to your employer about how you feel. Check your employer’s anti-discrimination policy to find out who you should talk to.

If you are not satisfied with your employer’s response or don’t want to talk with your employer about how you feel, you can contact the Equal Employment Opportunity Commission or the Arizona Civil Rights Division.

You must file a discrimination claim with Equal Employment Opportunity Commission or the Arizona Civil Rights Division within 300 calendar days of the last incident of discrimination.

Federal Agency Employees and Job Candidates for Federal agencies
The 300 calendar days to file a claim does not apply to employees who work for the U.S. government and job candidates who applies for a job.at federal agencies. The time period to file is much shorter.  Those people must contact a federal agency EEO counselor within 45 days of the last incident of discrimination. The agency that you work in or applies with will provide you with the name and contact information of the EEO counselor.

You may find more information about unlawful discrimination at www.eeoc.gov.


Legal Correspondent: Dave Smith   September 1, 2016

On 10/27/06
Lynda said
where are your employment posters so I can download them for our businesses