Discrimination: Overview

A Note providing an overview of the federal laws prohibiting discrimination, including Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Genetic Information Nondiscrimination Act (GINA), the Uniformed Services Employment and Reemployment Rights Act (USERRA) and others. This Note addresses federal law. For information on state law requirements, see the State Q&A Tools under Related Content.

PLC Labor & Employment
Contents

Discrimination is one of the most significant areas of legal exposure for US employers. Employers face potential liability for discrimination claims throughout every stage of the employment relationship, from hiring to firing and everything in between. Avoiding employment discrimination liability requires sensitivity to a wide variety of legally protected characteristics, including:

  • Race.

  • Color.

  • Religion or creed.

  • National origin or ancestry.

  • Sex.

  • Age.

  • Physical or mental disability.

  • Veteran status.

  • Genetic information.

  • Citizenship.

Employment discrimination claims are consistently one of the most vigorously litigated areas of employment law. Employers must understand the legal landscape of employment discrimination to effectively respond to employee concerns and minimize legal risks. This Note provides an overview of the most significant federal laws prohibiting employment discrimination and in particular, it:

  • Identifies the primary federal statutes prohibiting employment discrimination.

  • Explains which employers are obligated to comply with each law and which employees are protected by them.

  • Identifies prohibited employer conduct under each statute.

  • Describes how each statute is enforced and the theories under which employers are held accountable.

  • Highlights significant defenses against discrimination claims.

  • Explains the kinds of remedies available to successful plaintiffs.

 

What is Employment Discrimination?

The default rule in the US is at-will employment (www.practicallaw.com/4-501-5240), which means that employers or employees can terminate the employment relationship at any time, for any reason or for no reason unless:

This broad discretion extends to employers engaging in other kinds of adverse employment actions, such as declining to hire or promote.

At-will employment is limited to lawful employment actions. The most significant unlawful employment action is discrimination. Employment discrimination law prohibits employers from taking adverse employment actions against employees and applicants on the basis of their membership in a protected class (www.practicallaw.com/5-501-5857).

There is no single source for employment discrimination law. Employment discrimination is prohibited by many federal, state and local statutes. This Note describes the most significant federal laws prohibiting employment discrimination. For more information about state employment anti-discrimination law, see the Multi-State Q&A Guides under Related Content.

 

Why Should Employers be Concerned About Discrimination Claims?

Most employers are subject to the federal laws prohibiting employment discrimination, but not all employers appreciate the related legal risks. In fiscal year 2010, the Equal Employment Opportunity Commission (www.practicallaw.com/4-501-5853) (EEOC) reported 99,922 total individual charges alleging discrimination (including the related claims of harassment and retaliation). These numbers are likely to remain high, in part, because claimants may be offered or awarded significant sums without a great deal of personal cost. Personal costs incurred by claimants is small because:

  • They are not required to retain counsel and many claimants do not when filing a claim with the EEOC.

  • Those who do retain counsel often do so on a contingency fee basis.

  • It is very rare for the individual filing the claim to be assessed attorneys' fees incurred by the defendant, even if their claim is unsuccessful.

Employers sued for discrimination violations often face large financial losses. It is common for employers to pay thousands of dollars in legal fees defending against meritless claims and thousands more settling or litigating well-founded claims. For example, in 2010, Novartis was assessed over $250 million in a record setting sex discrimination case.

Discrimination does not need to be blatant or intentional to be the basis of a successful lawsuit. Employers are often aware that overt discrimination (also known as disparate treatment (www.practicallaw.com/8-502-2875)) is prohibited, but employers must also understand the more subtle forms of discrimination that can present just as great a legal risk (for example, policies and procedures having a disparate impact (www.practicallaw.com/1-502-2874) on a protected class). The related claims of harassment on the basis of protected class status (see Practice Note, Harassment (www.practicallaw.com/9-502-7844)) and retaliation for seeking to eliminate discriminatory practices or other protected behavior (see Practice Note, Retaliation (www.practicallaw.com/5-501-1430)) present additional legal pitfalls.

 

How is an Employment Discrimination Claim Brought?

Employers are also often confused by the way in which employees bring claims of discrimination. For most claims, the process begins with a complaint filed before the EEOC or its state or local equivalent. This step, called the exhaustion of administrative remedies, is required before the claimant can file a lawsuit in court.

The general rule for most claims is that the end of the administrative process culminates in the issuance of a right to sue letter (www.practicallaw.com/4-502-7667) and lawsuits must be filed in court within 90 days of the claimant's receipt of the right to sue letter. For more information on how a charge is filed and adjudicated, see Practice Note, Responding to Equal Employment Opportunity Commission Charges (www.practicallaw.com/9-503-3939) and EEOC: How to File a Charge of Employment Discrimination. Claims may be settled at any time or resolved at the administrative level, but some proceed on to court at great expense to employers.

 

Laws Prohibiting Discrimination

The primary federal laws prohibiting employment discrimination in the private sector are:

The oldest and most highly litigated of these laws is Title VII. Many other statutes prohibiting discrimination are based on the same legal principles as Title VII and regularly cite to Title VII for interpretative guidance.

 

Title VII

Title VII is the principal federal statute prohibiting employment discrimination. It prohibits discrimination, as well as harassment and retaliation, on grounds of:

  • Race.

  • Color.

  • Religion.

  • Sex (including pregnancy).

  • National origin.

Coverage of Employers Under Title VII

Most employers that employ 15 or more employees are covered under Title VII. Specifically, Title VII defines an employer as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person" (42 U.S.C. § 2000e(b)).

Person is broadly defined to include:

  • One or more individuals.

  • Governments.

  • Governmental agencies.

  • Political subdivisions.

  • Labor unions.

  • Partnerships.

  • Associations.

  • Corporations.

  • Legal representatives.

  • Mutual companies.

  • Joint-stock companies.

  • Trusts.

  • Unincorporated organizations.

  • Trustees.

  • Trustees in cases under Title 11.

  • Receivers.

(42 U.S.C. § 2000e(a).)

Title VII also covers joint labor-management committees on training or apprenticeship and employment agencies (42 U.S.C. §§ 2000e-2(b) and (d)).

The term "industry affecting commerce" is defined so broadly that it makes it nearly impossible for an employer to argue exemption from Title VII on this basis alone.

American companies operating overseas are covered by Title VII for their American employees, but Title VII recognizes an exception if compliance with its requirements violates the laws of the foreign jurisdiction (42 U.S.C. § 2000e-1(b)).

Title VII specifically excludes from the definition of employer:

  • The US (although federal employees are protected under a separate provision, see 42 U.S.C. § 2000e-16).

  • Corporations wholly owned by the US.

  • Indian tribes.

  • Designated departments and agencies of the District of Columbia (although designated employees of the District of Columbia are protected under a separate provision, see 42 U.S.C. § 2000e-16).

  • Bona fide private membership clubs (other than labor organizations) that are tax exempt under Section 501(c) of the Internal Revenue Code of 1986, as amended.

  • Religious corporations, associations, educational institutions or societies (for purposes of discriminating on the basis of religion, but not discriminating on the basis of any other protected class recognized under Title VII) (42 U.S.C. § 2000e-1(a)).

(42 U.S.C. § 2000e(b)(1)-(2).) For additional information on employer coverage, see EEOC: Coverage.

No Personal Liability Under Title VII

Although employers are regularly held accountable for the discriminatory, harassing or retaliatory acts of their employees under Title VII as agents of the employer, the vast majority of courts will not hold supervisors, managers, officers or non-supervisory employees personally liable under Title VII.

Coverage of Individuals Under Title VII

Title VII protects employees (including former employees) and applicants for employment, but does not cover independent contractors. For more information on independent contractor status, see Practice Note, Independent Contractor Classification (www.practicallaw.com/4-503-3970), Using Independent Contractors and Outside Firms: Avoiding Employee Misclassification Checklist (www.practicallaw.com/2-501-3609) and Standard Document, Independent Contractor/Consultant Agreement (Pro-client) (www.practicallaw.com/2-500-4638).

Title VII covers US citizens working abroad for US-controlled companies, but does not cover aliens working for US-controlled companies or US citizens working for non-US-controlled companies (42 U.S.C. § 2000e-1(a)).

Prohibited Employer Conduct Under Title VII

Title VII prohibits a broad range of discriminatory employer conduct, including:

  • Failure to hire.

  • Termination of employment.

  • Failure to promote.

  • Demotion.

  • Discriminatory compensation.

  • Discriminatory terms and conditions of employment (such as transfer, access to training or access to equipment).

  • Discriminatory classification or segregation of employees or applicants.

  • Discriminatory preferences in job postings or advertisements.

  • Failure to prevent or eliminate harassment.

  • Failure to provide reasonable accommodation.

  • Retaliation.

Courts interpret termination to include circumstances under which the terms and conditions of the workplace were so intolerable that they made it impossible for the employee to remain with the employer, also known as constructive discharge (see for example, Pennsylvania State Police v. Suders, 542 U.S. 129, 143 (2004)).

Enforcement of Title VII

Title VII created the EEOC, which enforces the federal statute. There are several different enforcement actions authorized by Title VII:

Theories of Discrimination Liability Under Title VII

The principal ways employers can be liable under Title VII are:

  • Disparate treatment.

  • Harassment.

  • Disparate impact.

  • Pattern and practice.

  • Failure to accommodate (in the area of religion).

  • Retaliation.

  • Cat's paw.

Disparate Treatment

Disparate treatment is the most blatant and common form of discrimination involving employees being subjected to less favorable treatment because of their protected class status (42 U.S.C. § 2000e-2). For example, employers that do not hire Muslims because of their religion engage in disparate treatment discrimination based on religion.

In disparate treatment cases, plaintiffs can prove discrimination either directly or indirectly. In cases involving indirect evidence of discrimination, the burden of proof shifts back and forth between plaintiff and defendant. McDonnell Douglas Corp. v. Green created the standard of proof for disparate treatment (411 U.S. 792 (1973)). The standard has been used to assess many adverse employment actions (such as termination and refusal to promote) involving various protected classes (such as sex and national origin). The traditional McDonnell Douglas burden-shifting standard operates as follows:

  • The burden of proof begins with the requirement that the plaintiff make out a prima facie case, which means demonstrating that:

    • the plaintiff is a member of a protected class;

    • the plaintiff was qualified for and applied for an available position (or was qualified for the position they held);

    • despite being qualified, the plaintiff was rejected for the position (or subject to another adverse employment action); and

    • if they were rejected as an applicant, after the rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

  • The employer defendant must then respond by articulating a legitimate, nondiscriminatory reason for the rejection of the candidate.

  • The plaintiff must then demonstrate that the reason offered by the defendant employer was not legitimate or nondiscriminatory, but a cover-up (or pretext ) for discrimination.

The McDonnell Douglas test does not apply to class action litigation (see McDonnell, 411 U.S. at 800). For information on the standards used in class action litigation, see Pattern and Practice.

Title VII also prohibits reverse discrimination, which is discrimination against traditionally advantaged groups, like white men.

There is no requirement under Title VII that employers take affirmative steps to change imbalances in the racial or other protected class makeup of a workplace. However, employers are permitted to voluntarily create affirmative action plans and adhere to them when making employment decisions. Employers are generally not permitted to modify, for example, test score cutoffs on the basis of race or other protected class status when making employment decisions because of speculative fear of litigation (see Ricci v. Destefano, 129 S. Ct. 2658 (2009)).

Harassment

Harassment has been recognized as a subset of prohibited discrimination under Title VII (see Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)). Harassment claims under Title VII are generally divided into two categories:

For more information, see Practice Note, Harassment (www.practicallaw.com/9-502-7844).

Disparate Impact

Disparate impact discrimination is a more subtle form of unlawful conduct that occurs when a seemingly neutral policy or practice unduly disadvantages individuals on the basis of their protected class (42 U.S.C. § 2000e-2). For example, minimum height requirements may have a disparate impact on women.

In disparate impact cases, once a plaintiff demonstrates that a policy or practice has a disproportionately harmful effect on a protected class (usually by statistical comparison, which the defendant employer can challenge), the burden of persuasion rests with the defendant employer. The defendant employer must show that the policy or practice is "job related for the position in question and consistent with business necessity" and no other alternative requirement would suffice (42 U.S.C. § 2000e-2(k)(1)(A)). The McDonnell Douglas test is not used to assess claims of disparate impact (see Griggs v. Duke Power Co., 401 U.S. 424 (1971)). Instead, courts adjudicating disparate impact cases analyze the legality of the contested practice (for example, test or policy) itself.

There are circumstances under which plaintiffs argue both disparate impact and disparate treatment theories of discrimination. For example, a plaintiff may claim that failure to promote on the basis of race is both a specific act of disparate treatment against the individual and indicative of a seemingly neutral general practice that disproportionately and negatively affects a specific racial group.

Pattern and Practice

Title VII allows either the EEOC or the US Attorney General to bring suit against employers alleged to have engaged in a pattern or practice of discrimination (42 U.S.C. §§ 2000e-5(f) and 2000e-6). Pattern and practice cases may allege disparate treatment or disparate impact, but they always allege widespread violations. Courts recognize a distinct burden of proof in these cases under which the government must show that there is a pattern and practice of discrimination and, by a preponderance of the evidence (www.practicallaw.com/3-501-6607), that this pattern and practice is not sporadic but is the employer's standard operating procedure (see International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 (1977)).

The same kind of standard has been used in private class action litigation under Title VII (see Davis v. Coca-Cola Bottling Co., 516 F.3d 955 (11th Cir. 2008) and Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984)).

This burden of proof makes statistical data particularly significant in these kinds of cases.

Failure to Accommodate

Failure to accommodate arises under Title VII for purposes of the protected class of religion (29 C.F.R. § 1605.2) as well as disability under the ADA (for more information, see ADA). Unlike other theories of discrimination that require treatment equal to non-protected class members, the accommodation obligation requires employers to provide special treatment to protected class members. Employers are not required to provide accommodations where doing so would result in an undue burden.

Retaliation

Retaliation in the form of an adverse employment action undertaken because an employee opposed a practice prohibited by Title VII or took part in a charge alleging violations under it is prohibited under Title VII (42 U.S.C. § 2000e-3). In Burlington Northern & Santa Fe Railway Co. v. White, the US Supreme Court clarified that the scope of retaliation protections under Title VII is broader than that of discrimination protections (548 U.S. 53 (2006)). Retaliation is actionable even if it occurs outside the workplace or is not directly related to employment. The standard for Title VII retaliation is that the employer's action must be harmful to the point that it could well dissuade a reasonable employee from making or supporting a charge of discrimination.

Cat's Paw

Under a cat's paw theory of liability, an employer may be liable if an employer's representative makes an adverse employment decision without any discriminatory intent, but that decision is influenced by a prior discriminatory employer action. For example, if Supervisor A disciplines an employee because of race and Supervisor B fires the employee because of the biased disciplinary action, the employer may be liable.

Although the seminal case on cat's paw, Staub v. Proctor Hospital, was decided under USERRA, the US Supreme Court noted USERRA's similarity to Title VII (560 F. 3d 647 (2011)). Cat's paw liability will undoubtedly apply equally in a Title VII context.

Defenses Under Title VII

Defendants can use one of several defenses against claims under Title VII.

Decision Maker in Same Protected Class

Plaintiffs alleging that a member of the plaintiff's protected class discriminated against them on the basis of that shared protected class have a difficult task. Although there is no presumption as a matter of law that simply being a member of a protected class makes an individual immune from discrimination on the basis of that class, defendants can argue that shared protected class status makes discrimination less likely. As the US Supreme Court held in Castaneda v. Partida, 430 U.S. 482, 499 (1977), "it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group."

Same Actor Inference

Employers facing discrimination claims in which the same person who hired the plaintiff took an adverse employment action against the plaintiff soon thereafter can bolster their defense with the same actor inference (see, for example, Williams v. Vitro Services Corp., 144 F.3d 1438 (11th Cir. 1998)). This defense permits a jury to infer that the adverse decision was not discriminatory. In other words, if person X hired an employee regardless of their protected class status, it may be assumed that person X did not fire that employee because of their protected class status. That assumption may be overcome if the plaintiff can offer evidence of discrimination.

Affirmative Action

Affirmative action plans are required for some federal contractors and may be judicially ordered for others. However, for private employers generally, affirmative action plans are not required and are authorized only under limited circumstances. The Weber test is used to determine how voluntary affirmative action plans are evaluated and it requires that:

  • There is a clear imbalance in traditionally segregated job categories (for example, fewer women traditionally work in construction).

  • The plan not unnecessarily harm the interests of individuals outside the protected class. For example, it cannot create an absolute bar to advancement or continued employment.

  • That the plan mirror the purposes of Title VII.

  • That the plan be temporary (generally, until the imbalance is corrected).

(United Steelworkers v. Weber, 443 U.S. 193 (1979).)

Correcting Disparate Impact

Employers using tests or other criteria that they later believe to have a disparate impact may correct the violation by disregarding those practices if they have a strong basis in evidence to believe they will also be liable for disparate impact discrimination. Fear of litigation alone is not sufficient to establish a strong basis in evidence. If there is no strong basis in evidence to believe there is disparate impact liability (for example, because the test at issue is job related and consistent with business necessity), this defense will not be permitted (see Ricci v. Destefano, 129 S. Ct. 2658 (2009)).

Bona Fide Occupational Qualification

Bona fide occupational qualification (www.practicallaw.com/5-501-6343) (BFOQ) is a narrow affirmative defense under which an employer can avoid liability by demonstrating that its protected class preference is reasonably necessary to the normal operation of its business or enterprise (42 U.S.C. § 2000e-2(k)). The BFOQ defense may be used in cases alleging discrimination on the basis of sex, national origin or religion only under Title VII (and age under the ADEA). The BFOQ defense is disfavored and valid only under very limited circumstances (for example, considering gender for providers of therapy to sexually abused children, see Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3rd Cir. 1996)).

Merit, Output and Ability Exceptions

Employers are authorized under Title VII to apply different compensation or employment terms and conditions because of:

  • A bona fide seniority or merit system.

  • A system measuring earnings by quantity or quality of production.

  • Professionally developed ability tests that are not designed, intended or used to discriminate.

(42 U.S.C. § 2000e-2(h).)

Good Faith Reliance on EEOC Opinions

Another very narrow affirmative defense recognized under Title VII is good faith reliance on EEOC opinions (42 U.S.C. § 2000e-12(b)). There is some debate among federal circuit courts about whether this serves as a complete defense or simply limits exposure to damages (see, for example, Rosenfeld v. Southern Pac. Co., 519 F.2d 527 (9th Cir. 1975)).

After-acquired Evidence

If an employer discovers something about an employee that would have justified termination or other adverse employment action (also known as after-acquired evidence), the employer cannot avoid liability entirely, but may be able to limit exposure to damages (see for example an ADEA case that is equally applicable to Title VII, McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995)).

Mixed Motive

A mixed motive case is one in which the employer had both lawful and unlawful reasons for making a particular adverse employment action decision. If an employer makes an adverse employment decision in which unlawful discrimination was a motivating factor, although other factors played a part as well, the employer cannot avoid liability entirely. However, the employer may be able to limit exposure to damages (see for example, Harris v. Shelby County Bd. of Educ., 99 F.3d 1078 (11th Cir. 1996)). Mixed motive cases may also help employers limit exposure to costs and fees. Many circuits hold that cost and fee shifting provisions of Title VII do not apply to mixed-motive retaliation claims (see Carter v. Luminant Power Servs. Co., No. 12-cv-10642, 2013 WL 1337365 (5th Cir. April 3, 2013); Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000); Norbeck v. Basin Elec. Power Co-op., 215 F.3d 848, 852 (8th Cir. 2000); McNutt v. Bd. of Trustees of Univ. of Illinois, 141 F.3d 706, 707-709 (7th Cir. 1998); and Tanca v. Nordberg, 98 F.3d 680, 682-685 (1st Cir. 1996)).

Remedies Under Title VII

Courts have substantial discretion in creating remedies under Title VII. Remedies available to successful Title VII plaintiffs may include:

  • Injunctive relief (www.practicallaw.com/4-502-4584), including reinstatement, hiring or affirmative steps to avoid future discrimination.

  • Back pay.

  • Compensatory damages for:

    • future loss;

    • emotional distress;

    • pain and suffering;

    • inconvenience;

    • mental anguish; and

    • loss of enjoyment of life.

  • Attorneys' fees and costs.

  • Punitive damages where intentional discrimination with malice or reckless indifference is proven.

  • Front pay.

There is a cap on damages (both compensatory and punitive) that depends on the size of the employer. Statutory caps specify that for each plaintiff the damage award may not exceed:

  • $50,000 for employers with 15-100 employees.

  • $100,000 for employers with 101-200 employees.

  • $200,000 for employers with 201-500 employees.

  • $300,000 for employers with 501 or more employees.

(42 U.S.C. § 1981a(b)(3).)

The number of employees is calculated by determining the number of employees working at least 20 calendar weeks in the current or previous calendar year.

Attorneys' fees are usually not available to prevailing defendants, but may be available if the underlying lawsuit was unreasonable, frivolous or lacking foundation.

Statute of Limitations Under Title VII

Under Title VII, the general rule is that a claimant must file a charge within 180 calendar days from the day on which the discriminatory act occurred. If the state or local government in question has a Fair Employment Practice Agency (FEPA) that enforces anti-discrimination laws on the same basis, the filing deadline extends to 300 days.

For more information on EEOC charges, see Practice Note, Responding to Equal Employment Opportunity Commission Charges (www.practicallaw.com/9-503-3939).

 

ADA

Final ADA regulations were issued on March 25, 2011, and will be effective May 24, 2011. This resource is currently being updated consistent with the final regulations. For more information about the regulatory changes, see Checklist, Disability Definition under the ADAAA Final Regulations (www.practicallaw.com/7-505-7931) and Practice Note, Disability Accommodation under the ADA (www.practicallaw.com/9-503-9007).

Titles I and V of the ADA are the primary sources of federal law prohibiting discrimination on the basis of disability in employment. The ADA prohibits employers from discriminating in all aspects of employment against qualified individuals on the basis of disability and requires employers to reasonably accommodate disabilities if they can do so without suffering an undue hardship (42 U.S.C. § 12112(b)(5)(A)). In response to what it viewed as unduly restrictive standard applied by the courts, Congress passed the ADAAA to make it easier for individuals to establish that they have a protected disability under the ADA (see Practice Note, Disability Accommodation under the ADA (www.practicallaw.com/9-503-9007) and Checklist, Disability Definition under the ADAAA Final Regulations (www.practicallaw.com/7-505-7931)).

Although beyond the scope of this Note, the ADA also prohibits discrimination in the area of public transportation (Title II), public accommodation (Title III) and telecommunications (Title IV).

Coverage of Employers Under the ADA

Private employers are covered under the ADA if they have 15 or more employees. Employer coverage under the ADA is nearly identical to employer coverage under Title VII (see Coverage of Employers Under Title VII). The Rehabilitation Act of 1973 (29 U.S.C. §§ 701-718) offers parallel protections to employees of the federal government and entities (including state agencies) receiving federal funds.

No Personal Liability Under the ADA

Because the ADA adopts Title VII's definition of employer, it follows Title VII in declining to recognize personal liability (see, for example, Walsh v. Nevada Dept. of Human Resources, 471 F.3d 1033 (9th Cir. 2006)).

Coverage of Individuals Under the ADA

Like Title VII, the ADA covers employees (including former employees) and applicants, but does not cover independent contractors (see Coverage of Individuals Under Title VII). The ADA prohibits discrimination against qualified individuals on the basis of disability as defined by the statute (defined at 42 U.S.C. § 12102(1)). For more information on the definition of disability, see Checklist, Disability Definition under the ADAAA Final Regulations (www.practicallaw.com/7-505-7931). It also requires accommodation of disabled individuals (see Practice Note, Disability Accommodation under the ADA (www.practicallaw.com/9-503-9007)).

Qualified

To be a qualified individual under the ADA, one must:

  • Have the skills, experience, education and other job-related requirements of the position.

  • Be able to perform the essential functions of the position with or without reasonable accommodation.

(29 C.F.R. § 1630.2(m).)

Essential functions of the job are "fundamental job duties of the employment position the plaintiff with a disability holds or desires" (29 C.F.R. § 1630.2(n)(1)).

A job function may be considered essential for any of several reasons, including:

  • The reason the position exists is to perform that function (for example, a typist must be able to type).

  • There are a limited number of employees available to perform that job function.

  • The function is highly specialized so that the employee in the position is hired for a particular expertise or ability.

(29 C.F.R. § 1630.2(n)(2).)

Factors relevant to whether a job function is essential include:

  • The employer's judgment.

  • Written job descriptions prepared before advertising or interviewing job applicants.

  • The amount of time an employee spends performing the job function.

  • Consequences of not requiring the existing employee to perform the job function.

  • Collective bargaining agreement terms.

  • Work experience of individuals who held the job previously.

  • Work experience of individuals who hold similar jobs.

(29 C.F.R. § 1630.2(n)(3).)

Disability

The ADA defines disability as either:

(29 C.F.R. § 1630.2(g).)

The definition of disability was broadened by the ADAAA and its regulations. The ADAAA clarifies that:

  • The term "substantially limits" must be interpreted broadly.

  • The effect of mitigating measures like drugs and medical devices cannot be considered when assessing whether an impairment substantially limits a major life activity. Glasses and contacts are a specific exception to this rule.

  • Conditions that are in remission or episodic may be covered under the ADA and must be evaluated as if they were active.

  • The term "major life activity" includes both general activities and bodily functions. For a complete list, see Box, Major Live Activities.

For additional information on the expanded definition of disability under the ADAAA regulations, see Checklist, Disability Definition under the ADAAA Final Regulations (www.practicallaw.com/7-505-7931).

Protection for Individuals without Disabling Conditions

The ADA covers not only individuals who have disabling conditions, but also those who:

  • Have a record of disability.

  • Are regarded as having a disability.

  • Who associate with or have a relationship with individuals who have a disability.

(42 U.S.C. §§ 12102(1) and 12112(b)(4).)

Prohibited Employer Conduct Under the ADA

Like Title VII, the ADA prohibits a broad range of employer conduct, including discrimination in hiring, firing and compensation (see Prohibited Employer Conduct Under Title VII).

In April 2012, the EEOC issued guidance further explaining prohibited employer conduct and employer obligations under the ADA with respect to veterans.

Enforcement of the ADA

For employment purposes, the ADA is enforced in the same way as Title VII (see Enforcement of Title VII).

Theories of Discrimination Liability Under the ADA

Like Title VII, the principal ways in which employers are liable under the ADA are:

  • Disparate treatment.

  • Harassment.

  • Disparate impact.

  • Pattern and practice.

  • Failure to accommodate.

  • Retaliation.

For more information, see Theories of Discrimination Liability Under Title VII.

Unlike Title VII, the ADA does not recognize reverse discrimination claims. The ADA also imposes specific requirements for medical and drug testing (see Medical Examinations and Inquiries in Employment Checklist (www.practicallaw.com/1-502-2063) and Employee Drug and Alcohol Testing under the Americans with Disabilities Act Checklist (www.practicallaw.com/6-502-0919)).

Failure to Accommodate

The accommodation obligation under federal discrimination law applies to disability (under the ADA) and religion (under Title VII). Covered employers must provide reasonable accommodations to qualified individuals with disabilities, including both applicants and employees, unless doing so would cause an undue hardship (see Undue Hardship). Examples of accommodation include making the facilities more accessible, restructuring the particular job and allowing a change in a work schedule.

To provide an accommodation, it may be necessary for employers to engage in the interactive process (www.practicallaw.com/0-504-7238). The interactive process is an informal practice in which the covered individual and the employer determine the limitations created by the disability and how best to respond to the need for accommodation (29 C.F.R. § 1630.2(o)(3)). Employers are not obliged to provide the specific accommodation requested by the individual seeking accommodation (29 C.F.R. pt. 1630, App., § 1630.9 and see also, EEOC v. Agro Distribution, LLC, 555 F.3d 462, 471 (5th Cir. 2009)).

Reasonable accommodation is not required for an individual who falls solely under the "regarded as" definition of disability.

For more information on the ADA's accommodation requirements, see Practice Note, Disability Accommodation under the ADA (www.practicallaw.com/9-503-9007).

Defenses Under the ADA

Defendants can use one of several defenses against claims under the ADA.

Job-related and Business Necessity

Employers may defend against disability discrimination claims if their qualification standards, tests or selection criteria screen out or deny employment to disabled individuals if the employer's practice is job-related and consistent with business necessity (42 U.S.C. § 12113(a)).

There is a related defense that allows employers to evaluate candidates and employees with uncorrected vision if doing so is job-related and consistent with business necessity (42 U.S.C. § 12113(c)).

Direct Threat

The qualification standards used by an employer may include a requirement that the individual not pose a direct threat to the health or safety of others in the workplace (42 U.S.C. § 12113(b)). ADA regulations define direct threat more broadly than the statute and include a threat to the health or safety of the individual in question (42 U.S.C. § 12113(b) and 29 C.F.R. § 1630.2(r)).

Undue Hardship

Under the ADA, an employer is not required to make reasonable accommodations that would impose an undue hardship on the employer. Undue hardship is any action that is unduly costly, extensive, substantial, disruptive or fundamentally alters the nature or operation of the business (42 U.S.C. §§ 12112(b)(5)(A) and 12111(10) and 29 C.F.R. § 1630.2(p)).

Religious Entities

A defense to a discrimination claim under the ADA allows religious groups to give preference to individuals of a particular religion and may require applicants and employees to conform to the religious tenants of that organization (42 U.S.C. § 12113(d)).

Food Handlers

There is a specific defense available for employers in working in the food supply chain. It allows employers to maintain a policy of not assigning individuals with infectious diseases to food handling positions if there are no available reasonable accommodations that can eliminate the danger of spreading the disease (42 U.S.C. § 12113(e)).

Good Faith Defense

For purposes of failure to accommodate, employers may take advantage of a defense that prohibits damages if the employer makes a good faith effort to identify and provide a reasonable accommodation in consultation with the individual seeking the accommodation (42 U.S.C. § 1981a(a)(3)).

Mixed Motive

It is not settled whether mixed motive ADA claims are recognized (compare, for example, Parker v. Columbia Pictures Industries, 204 F.3d 326 (2d Cir 2000) with Layman v. Alloway Stamping and Machine Co., 98 Fed. Appx. 369 (6th Cir. 2004)). The ADAAA modified the ADA to prohibit discrimination "on the basis of" disability rather than "because of" disability. This adds additional uncertainty about whether mixed motive cases are permissible under the ADA.

Same Actor Inference Generally Unavailable

Courts have expressed reservations about the relevance of the same actor inference in the context of disability discrimination because the decision maker who hired the plaintiff may not be aware of the extent of the plaintiff's condition and it may worsen over time (see, for example, Susie v. Apple Tree Preschool and Child Care Ctr., Inc., 866 F. Supp. 390, 396-97 (N.D. Iowa 1994)).

Remedies Under the ADA

Remedies available under the ADA are largely the same as those available under Title VII.

However, compensatory and punitive damages are not available to plaintiffs alleging only retaliation under the ADA (see Kramer v. Banc of Am. Sec., LLC. 355 F.3d 961 (7th Cir. 2004)).

Statute of Limitations Under the ADA

Under the ADA, the general rule is that a claimant must file a charge within 180 calendar days from the day on which the discriminatory act occurred. If the state or local government in question has a FEPA that enforces anti-discrimination laws on the same basis, the filing deadline extends to 300 days.

For more information on EEOC charges, see Practice Note, Responding to Equal Employment Opportunity Commission Charges (www.practicallaw.com/9-503-3939).

 

ADEA

The ADEA is the primary federal statute prohibiting employment discrimination on the basis of age, and protects individuals age 40 and older. The prohibitions of the ADEA were derived in large part from Title VII, and the scope of the ADEA's substantive prohibitions against employment discrimination is determined by Title VII (see EEOC v. Zippo Mfg. Co., 713 F.2d 32, 38 (3d Cir. 1983)).

Coverage of Employers Under the ADEA

Coverage of employers under the ADEA is nearly identical to coverage of employers under Title VII (see Coverage of Employers Under Title VII), except that the minimum number of employees required for coverage is 20 (instead of 15, as required under Title VII).

No Personal Liability Under the ADEA

Consistent with Title VII, courts have broadly rejected personal liability under the ADEA.

Coverage of Individuals Under the ADEA

The definition of employee under the ADEA is nearly identical to the definition of employee under Title VII (see Coverage of Individuals Under Title VII). However, there are specific exemptions recognized under the ADEA for mandatory retirement of:

Prohibited Employer Conduct Under the ADEA

The ADEA prohibits the same kind of adverse employment action as prohibited by Title VII, although there is no accommodation obligation (see Prohibited Employer Conduct Under Title VII).

Enforcement of the ADEA

Like Title VII, the ADEA is enforced by the EEOC and authorizes individual or group enforcement actions as well as actions by government agencies (see Enforcement of Title VII). For claims under the ADEA, there are slightly different procedural requirements concerning EEOC exhaustion of administrative remedies, including a 60-day waiting period (29 U.S.C. § 626(d)). Also, several courts have held that ADEA claims do not require the plaintiff to obtain a right to sue letter before filing the claim in court.

For waiver of ADEA claims, employers must comply with an amendment to the ADEA called the Older Workers Benefit Protection Act (www.practicallaw.com/7-504-0021) (OWBPA). For more information on the OWBPA, see Practice Note, Conducting Layoffs and Other Reductions in Force: OWBPA and State Laws (www.practicallaw.com/9-502-6665).

Theories of Discrimination Liability Under the ADEA

Like Title VII, the ADEA recognizes claims of:

  • Disparate treatment.

  • Harassment.

  • Disparate impact (although interpreted more narrowly than disparate impact under Title VII).

  • Pattern and practice.

  • Retaliation.

However, there is no recognized claim for failure to accommodate or for reverse discrimination.

Although the McDonnell Douglas burden shifting standard is still used in ADEA discrimination cases (see Smith v. Allentown, 589 F.3d 684 (3d Cir. 2009)), the US Supreme Court cast some doubt on its continued viability for ADEA claims (see Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009) ("the Court has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), utilized in Title VII cases is appropriate in the ADEA context")). Legislation to overturn Gross has been introduced.

Defenses Under the ADEA

The ADEA recognizes several statutory defenses to age discrimination claims, which are:

  • Bona fide occupational qualification (see Bona Fide Occupational Qualification).

  • The employer action is based on reasonable factors other than age.

  • ADEA compliance for an employee in a foreign country would violate that country's law.

  • The decision to discharge or discipline is justified by good cause.

  • The employer action is because of a bona fide employee benefit plan.

  • The employer action is because of a bona fide seniority system.

(29 U.S.C. § 623(f).)

Mixed Motive

The 2009 Gross case suggests that mixed motive claims under the ADEA are no longer recognized. Legislation to overturn Gross has been introduced.

Decision Maker in Same Protected Class Generally Unavailable

Courts have broadly rejected the defense that because an individual is 40 years or older, that individual cannot discriminate on the basis of age in violation of the ADEA (see, for example, Wexler v. White's Fine Furniture, Inc., 317 F.3d 564 (6th Cir. 2003)).

Same Actor Inference

The same actor inference is an available defense under the ADEA, as it is under Title VII (see, for example, Kelley v. Airborne Freight Corp., 140 F.3d 335 (1st Cir. 1998)).

Remedies Under the ADEA

The remedies authorized under the ADEA are based on remedies available under Title VII and the Fair Labor Standards Act (www.practicallaw.com/5-501-9884) (FLSA) and courts have broad discretion in granting legal and equitable relief (29 U.S.C. § 626(b)). Successful ADEA plaintiffs are entitled to most of the remedies available under Title VII (see Remedies Under Title VII). In addition, successful plaintiffs proving willful violations may be eligible for liquidated damages, which are generally equal to double back pay. Courts have generally declined to authorize compensatory damages for pain and suffering and punitive damages for ADEA plaintiffs because of the availability of liquidated damages.

Statute of Limitations Under the ADEA

Under the ADEA, the general rule is that a claimant must file a charge within 180 calendar days from the day on which the discriminatory act occurred. The circumstances under which the limitations period is extended under the ADEA is different from that of Title VII and the ADA. Whereas Title VII and the ADA extend time if there is a FEPA enforcing laws on the same basis, the ADEA extends time to 300 days only if there is an actual state law prohibiting age discrimination in employment and a FEPA enforcing that state law.

For more information on EEOC charges, see Practice Note, Responding to Equal Employment Opportunity Commission Charges (www.practicallaw.com/9-503-3939).

 

GINA

GINA is the primary source of federal law prohibiting discrimination on the basis of genetic information. It also restricts employers' ability to collect and reveal genetic information. Because GINA was enacted in 2008 and claims under it are relatively rare, the case law informing interpretation of the statute is limited. Statutory language and interpretation to date rely heavily on Title VII.

Genetic Information Defined

GINA defines genetic information as information attributable to any individual about:

  • Genetic tests.

  • Genetic tests of the individual's family members.

  • The manifestation of diseases or disorders among the individual's family members.

  • Requests for or receipt of any genetic services or participation in clinical research, including genetic services, by the individual or their family members.

(42 U.S.C. § 2000ff(4)(A)-(B).)

Genetic information does not include information about an individual's sex or age (42 U.S.C. § 2000ff(4)(C)).

Coverage of Employers Under GINA

GINA follows Title VII for coverage of employers (see Coverage of Employers Under Title VII).

No Personal Liability Under GINA

Case law has not determined whether GINA imposes personal liability, but because it follows Title VII so closely, it is unlikely that GINA imposes personal liability.

Coverage of Individuals Under GINA

GINA follows Title VII for coverage of individuals (see Coverage of Individuals Under Title VII).

Prohibited Employer Conduct Under GINA

Like Title VII, GINA prohibits a broad range of employer conduct, including discrimination in hiring, firing and compensation (see Prohibited Employer Conduct Under Title VII). It also prohibits disclosure of genetic information (42 U.S.C. § 2000ff-5(b)) and collection of genetic information (42 U.S.C. § 2000ff-1(b)) unless the circumstances warrant a limited exception under the statute.

GINA also addresses genetic discrimination in health insurance (Title I) plus severability and child labor protections (Title III). For more information on the health insurance implications of GINA, see DOL: FAQs on the Genetic Information Nondiscrimination Act.

Enforcement of GINA

For employment discrimination purposes, GINA is enforced the same way as Title VII (see Enforcement of Title VII).

Theories of Discrimination Liability Under GINA

GINA shares many theories of discrimination with Title VII (see Theories of Discrimination Liability Under Title VII). Although GINA does not currently recognize a cause of action for disparate impact (42 U.S.C. § 2000ff-7(a)), it created a commission to study the possibility of recognizing disparate impact claims (42 U.S.C. § 2000ff-7(b)).

Defenses Under GINA

Although the case law is not well developed, GINA is likely to follow Title VII concerning defenses (see Defenses Under Title VII).

Remedies Under GINA

Remedies available under GINA are largely the same as those available under Title VII (see Remedies Under Title VII).

Statute of Limitations Under GINA

Under GINA, the general rule is that a claimant must file a charge within 180 calendar days from the day on which the discriminatory act occurred. If the state or local government in question has a Fair Employment Practice Agency (FEPA) that enforces anti-discrimination laws on the same basis, the filing deadline extends to 300 days.

For more information on EEOC charges, see Practice Note, Responding to Equal Employment Opportunity Commission Charges (www.practicallaw.com/9-503-3939).

 

USERRA

USERAA is the primary federal statute prohibiting employment discrimination on the basis of past, present or prospective military service. For more information on USERRA, see Practice Note, Military Leave Law (www.practicallaw.com/7-504-4849).

In addition to its anti-discrimination provision, USERRA also requires employers to reemploy those who have taken military leave under designated services and creates protections for health insurance coverage. For more information on USERRA protections on these topics, see DOL: Veterans' Employment & Training Service.

Coverage of Employers Under USERRA

USERRA defines employer broadly to include "any person, institution, organization or other entity that pays salary or wages for work performed or that has control over employment opportunities" (38 U.S.C. § 4303(4)). There are no exemptions (like those available to small employers) equivalent to those under Title VII.

Possible Personal Liability

The definition of employer under USERRA is broader than that under Title VII, ADA, ADEA or GINA. Some courts have recognized individual liability under some circumstances (see, for example, Brandsasse v. City of Suffolk, 72 F.Supp.2d 608, 617-18 (E.D.Va. 1999)).

Coverage of Individuals Under USERRA

USERRA covers employees (including former, part-time and probationary employees) and applicants for employment. It does not cover independent contractors.

It applies to membership, application for membership, performance of service, application for service or obligation for service in the uniformed services (www.practicallaw.com/5-502-4668) (20 C.F.R. § 1002.18). Uniformed services include:

  • Armed forces.

  • Army National Guard and the Air National Guard when engaged in:

    • active duty for training;

    • inactive duty training; or

    • full-time National Guard duty.

  • Commissioned corps of the Public Health Service.

  • Any other category of persons designated by the President in time of war or national emergency.

(38 U.S.C. § 4303(16).)

Prohibited Employer Conduct Under USERRA

USERRA prohibits discrimination in:

  • Initial employment.

  • Reemployment.

  • Retention in employment.

  • Promotion.

  • Any benefit of employment.

  • The terms, conditions or privileges of employment.

(38 U.S.C. § 4311(a).) The Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011 added the "terms, conditions or privileges of employment" language, which may authorize claims of hostile work environment. Those claims had been rejected previously by federal courts (see, for example, Carder v. Continental Airlines, 636 F.3d 172 (5th Cir. 2011)).

Enforcement of USERRA

USERRA is administered by the Veterans' Employment & Training Service (VETS). Those who believe they have been discriminated against begin their claim under USERRA by filing a claim with their local VETS office. For more information, see DOL: Instructions for USERRA Claims. USERRA actions also may be brought by the US government.

Theories of Discrimination Liability Under USERRA

USERRA prohibits employment discrimination and retaliation. The McDonnell Douglas standard is not relevant to USERRA claims. Those alleging discrimination or retaliation under USERRA must follow the standards established under the National Labor Relations Act (www.practicallaw.com/2-382-3640) (see N.L.R.B. v. Transportation Management Corp., 462 U.S. 393 (1983)). Consistent with those standards, to prove discrimination or retaliation, an individual must demonstrate that the employer's action was motivated by one or more of the following:

  • Membership or application for membership in a uniformed service.

  • Performance of service, application for service or obligation for service in a uniformed service.

  • Action taken to enforce a protection afforded any person under USERRA.

  • Testimony or statement made in or in connection with a USERRA proceeding.

  • Assistance or participation in a USERRA investigation.

  • Exercise of a right provided for by USERRA.

(20 C.F.R. § 1002.23(a).)

USERRA may also permit claims of hostile work environment following the passage of the Veterans Opportunity to Work (VOW) to Hire Heroes Act.

USERRA requires reemployment under specific circumstances. For more information on USERRA reemployment rights, see Practice Note, Military Leave Law: Employees' Reemployment Rights under USERRA (www.practicallaw.com/7-504-4849).

Defenses Under USERRA

Employers may defend against USERRA discrimination and retaliation claims by proving that the adverse action would have been taken regardless of the USERRA-protected status or activity (for example, elimination of a job because an entire department was eliminated) (20 C.F.R. § 1002.23(b)).

Remedies Under USERRA

Successful USERRA plaintiffs may be entitled to:

  • Lost wages or benefits.

  • Liquidated damages equal to lost wages and benefits for willful violations (also known as double damages).

(20 C.F.R. § 1002.312.)

Employers found to be in violation may be subject to:

  • Orders to comply with USERRA.

  • Temporary injunctions.

  • Permanent injunctions.

  • Temporary restraining orders.

  • Contempt orders.

(20 C.F.R. §§ 1002.312, 1002.313 and 1002.314.)

Statute of Limitations Under USERRA

USERRA does not recognize any statute of limitations.

 

Section 1981

Section 1981 (www.practicallaw.com/5-503-7944), in relevant part, grants all individuals within the jurisdiction of the US the same rights to make and enforce contracts as "enjoyed by white citizens" (42 U.S.C. § 1981(a)). Courts have interpreted this language to cover the employment relationship, including at-will employment. Because the statute specifically references "white citizens," it has been interpreted to apply to discrimination on the basis of race, color or ethnicity.

Section 1981 does not apply to discrimination on the basis of sex, religion, age, disability, genetic information or any other protected class.

Coverage of Employers Under Section 1981

Section 1981 coverage of employers is broader than that of Title VII. There is no exemption for small employers (as there is under Title VII) and most courts do not recognize an exemption for private clubs (as recognized under Title VII). However, federal government employers are not covered for employment discrimination purposes under Section 1981 as they are under Title VII (see Brown v. General Services Administration, 425 U.S. 820 (1976) and Coverage of Employers Under Title VII).

Coverage of Individuals Under Section 1981

Because Section 1981 depends on a contractual rather than an employment relationship, independent contractors are covered under Section 1981.

Prohibited Employer Conduct Under Section 1981

Section 1981 prohibits the same kind of employer conduct as Title VII (see Manatt v. Bank of Am., NA, 339 F.3d 792 (9th Cir. 2003) and Prohibited Employer Conduct Under Title VII).

Enforcement of Section 1981

Section 1981 claims do not require exhaustion of administrative remedies and may be filed directly in court.

Theories of Discrimination Liability Under Section 1981

Claims under Section 1981 are available only in situations involving a contract and only in situations involving intentional discriminatory conduct on the basis of race, color or ethnicity (see General Bldg Contractors Ass'n v. Pennsylvania, 458 U.S. 375 (1982)). Courts generally apply the same standards of proof to Section 1981 claims and Title VII claims. Retaliation is also prohibited under Section 1981 in situations involving race, color or ethnicity discrimination in contracts (see, CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008)).

To prove a violation of Section 1981, a plaintiff must demonstrate intentional discrimination. Accordingly, there is no disparate impact claim available to plaintiffs under Section 1981.

Courts recognize reverse discrimination claims under Section 1981 (see McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976)).

Defenses Under Section 1981

Because Section 1981 claims are subject to the same standards of proof as Title VII, the same defenses are generally available to employers (see Defenses Under Title VII).

Remedies Under Section 1981

Remedies available under Section 1981 are similar to those available under Title VII, but compensatory and punitive damages are not subject to a cap under Section 1981 (see Remedies Under Title VII).

Statute of Limitations Under Section 1981

Although Section 1981 does not identify a specific statute of limitations, Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004) establishes that the general four year statute of limitations found at 28 U.S.C. § 1658, which became effective December 1, 1990, applies to Section 1981 discrimination claims that arise from the Civil Rights Act of 1991. However, if the Section 1981 cause of action was available to claimants before the Civil Rights Act of 1991, an analogous state law statute of limitations will apply.

 

EPA

The EPA prohibits sex-based discrimination in payment of wages for equal work. The EPA was enacted as an amendment to the FLSA and follows FLSA law on several points of law, as explained below.

Coverage of Employers Under the EPA

The EPA covers essentially the same group of employers covered under the FLSA. FLSA coverage extends to employers engaged in interstate commerce that meet specific financial benchmarks, currently set at a minimum of $500,000 annually. Interstate commerce has been defined so broadly that it is nearly impossible for an employer to argue that it is exempt from the EPA on this basis alone. Hospitals, nursing homes and schools are covered regardless of the financial minimum.

Individuals employed by entities not fitting within this definition may be covered if they are personally engaged in interstate commerce or are directly engaged in the production of goods for commerce.

Public employers are covered (29 U.S.C. § 203(d)(e)). Labor unions are not covered under the FLSA as employers, but are covered for other purposes (for example, as representatives for employees in the workplace) under the EPA (29 U.S.C. § 206(d)(2)).

The FLSA also recognizes specific industry exemptions, including amusement or recreational establishments, fishing operations and small newspapers, among others (29 U.S.C. § 213).

Coverage of Individuals Under the EPA

Employees can be covered according to an individual test for coverage or because they work for covered employers (see Coverage of Employers Under the EPA). The EPA recognizes employee exemptions, including exemptions for specified public employees, family farmers and volunteers (29 U.S.C. § 203(e)).

Prohibited Employer Conduct Under the EPA

The EPA prohibits employers from offering unequal pay for equal work on the basis of sex. Equal work means work performed under similar working conditions that requires equal:

  • Skill.

  • Effort.

  • Responsibility.

(29 U.S.C. § 206(d)(1).)

Exceptions are authorized where the unequal payment is made under a:

  • Seniority system.

  • Merit system.

  • System that measures earnings by quantity or quality of production.

  • Differential basis on any factor other than sex if the employer does not reduce the wage of any employee to comply with the legal requirement.

(29 U.S.C. § 206(d)(1)(i)-(iv).)

Enforcement of the EPA

The EPA is enforced by the EEOC. The EEOC can bring suit under the EPA and individuals can sue on their own behalf. EPA claims brought by individuals may be filed with the EEOC, but there is no requirement to exhaust administrative remedies before the EEOC.

Theories of Discrimination Liability Under the EPA

The EPA prohibits unequal pay for equal work on the basis of sex. It also prohibits retaliation.

Defenses Under the EPA

The EPA recognizes a good faith defense to liquidated damage awards (29 U.S.C. § 260). If the employer can show that the violation was in good faith and supported by reasonable grounds for believing that it was in compliance with the law, the court may decline to award liquidated damages.

Remedies Under the EPA

Generally, the EPA provides the same remedies as authorized for violations of the minimum wage laws of the FLSA. These include:

  • Lost wages.

  • Attorneys' fees and costs.

  • Liquidated damages.

(29 U.S.C. § 216(b).)

A broader array of remedies is available for successful retaliation claims under the EPA (as opposed to discrimination claims under the EPA), including equitable relief, reinstatement and promotion. The EEOC may obtain injunctive relief, but injunctive relief is unavailable to individual plaintiffs (see 29 U.S.C. §§ 215(a)(3), 216 and 217).

Statute of Limitations Under the EPA

The EPA recognizes a general statute of limitation of two years, which is extended to three years if the violation is willful.

 

IRCA

IRCA prohibits unfair immigration-related employment practices, including citizenship discrimination, national origin discrimination, over-documentation in the employment eligibility verification process and retaliation. IRCA's anti-discrimination provisions were enacted in coordination with the employment eligibility verification process (see Practice Note, Demonstrating the Right to Work in the United States (www.practicallaw.com/7-500-6654)).

Coverage of Employers Under IRCA

IRCA generally applies to employers with more than three employees. For exceptions, see Prohibited Employer Conduct Under IRCA.

For employers with at least 15 employees, IRCA requires that any national origin discrimination claim be made under Title VII. For more information on Title VII, see Title VII.

Coverage of Individuals Under IRCA

IRCA generally protects employees (including former employees) and applicants for employment who are authorized workers. For exceptions, see Prohibited Employer Conduct Under IRCA.

Prohibited Employer Conduct Under IRCA

IRCA prohibits four forms of unfair employment-related practices in hiring and terminating employees.

Citizenship Discrimination

IRCA prohibits knowing or intentional discrimination against protected individuals on the basis of citizenship. Employers cannot make hiring or termination decisions because of employees' or prospective employees' real or perceived immigration or citizenship status, or because of their type of work authorization.

Protected individuals include:

  • US citizens.

  • US nationals.

  • Recent lawful permanent residents (known as "green card" holders). Permanent residents lose protected status if they:

    • fail to apply for naturalization to US citizenship within six months of fulfilling the eligibility period; or

    • fail to pursue a timely-filed naturalization application that has been pending for two years.

  • Asylees or refugees.

  • Lawful temporary resident under the government's amnesty or legalization programs.

Certain citizenship preferences are permitted. Discrimination because of citizenship is allowed if:

  • It is required:

    • to comply with a law, regulation or executive order;

    • by federal, state or local government contract; or

    • by Attorney General determination that the discrimination is essential for an employer to do business with an agency or department of the federal, state or local government.

  • The employer is selecting between equally qualified job candidates, and has a preference to hire US citizens or nationals.

Unauthorized workers and workers with nonimmigrant visa statuses are not protected from citizenship discrimination.

(See 8 U.S.C. § 1324b(a)(1), (3) and (4).)

National Origin Discrimination

IRCA prohibits knowing or intentional national origin discrimination for employers with between four and 14 employees. Claims for national origin discrimination against employers with 15 or more employees are made under Title VII.

(8 U.S.C. § 1324b(a)(1) and (2).)

Employers are prohibited from treating employees or prospective employees differently because of:

  • Place of birth.

  • Country of origin.

  • Ancestry.

  • Native language.

  • Accent.

  • Looking or sounding foreign.

All work authorized individuals, including those in nonimmigrant visa statuses, are protected from national origin discrimination.

(See Office of Special Counsel for Unfair Immigration-Related Employment Practices, Background Information.)

Documentation Abuse

Employers may not request that an employee present more or different documents to complete the employment eligibility verification process on Form I-9 (www.practicallaw.com/6-502-1061), as long as the presented documents meet legal requirements. The employment eligibility process requires employers to examine documents that prove identity and employment eligibility. Employees are allowed to select the documents to present from a prescribed list established by the United States Citizenship and Immigration Services (www.practicallaw.com/2-505-8650) (USCIS). For more information on the employment eligibility verification process, see Practice Note, Demonstrating the Right to Work in the United States (www.practicallaw.com/7-500-6654). An employer that demands specific documents typically does so out of bias and a belief that those documents are most trustworthy. For example:

  • An employer that tells each new hire to bring their US passport on their first day of work to fill in the I-9 form is discriminating by demanding specific documents.

  • An employer that tells a new employee it cannot complete the I-9 form until she brings her US passport, even though she presents acceptable alternate documents such as a valid drivers' license and certified birth certificate, is discriminating by demanding additional documents.

All work authorized individuals, including those in nonimmigrant visa statuses, are protected from document abuse.

(8 U.S.C. § 1324b(a)(6) and see Office of Special Counsel for Unfair Immigration-Related Employment Practices, Background Information.)

Retaliation

Employers may not retaliate against, intimidate, threaten or coerce anyone for:

  • Filing a charge of discrimination.

  • Participating in a discrimination investigation.

  • Asserting any rights under IRCA's anti-discrimination provision.

(8 U.S.C. § 1324b(a)(5).)

Enforcement of IRCA

IRCA created the Office of Special Counsel for Immigration-Related Unfair Employment Practices (www.practicallaw.com/2-506-1544) (OSC), part of the US Department of Justice's Civil Rights Division, to enforce all discrimination claims. Those who believe they have been discriminated against begin their claim under IRCA by filing a charge with the OSC. For more information, see OSC: Charge Form for Immigration-Related Unfair Employment Practices. IRCA claims may also be brought by the US government.

Claims must be filed within 180 days of the alleged discriminatory act. Following an investigation, the OSC will decide to file a complaint against the employer with an administrative law judge. If the OSC elects to not file a complaint, the charging party may file a complaint directly with the administrative law judge.

(8 U.S.C. § 1324b(b)(1) and 28 C.F.R. § 44.300(a), (b).)

Theories of Discrimination Under IRCA

IRCA prohibits knowing and intentional discrimination in hiring and termination and retaliation. Successful claimants must show that an employer's discriminatory practice is motivated by one or more of the following:

  • Having, or not, US citizenship or nationality status.

  • Place of birth.

  • Country of origin.

  • Ancestry.

  • Native language.

  • Accent.

  • Looking or sounding foreign.

  • Requiring more or different documents than those presented for the I-9 form process.

  • Filing a charge of discrimination.

  • Participating in a discrimination investigation.

  • Asserting any rights under IRCA's anti-discrimination provision.

(See 8 U.S.C. § 1324b(a) and Office of Special Counsel for Unfair Immigration-Related Employment Practices, Background Information.)

Defenses Under IRCA

Discrimination under IRCA must be knowing or intentional.

Employers may not be held liable for discrimination if a citizenship preference is required:

  • To comply with a law, regulation or executive order.

  • By federal, state or local government contract.

  • By Attorney General determination that the discrimination is essential for an employer to do business with an agency or department of the federal, state or local government.

Furthermore, employers may have a preference for hiring US citizens or US nationals over foreign nationals if the candidates are equally qualified.

(8 U.S.C. § 1324b(a)(2)(c) and (4).)

Remedies Under IRCA

Remedies under IRCA may include:

  • Order to cease and desist the discriminatory practice.

  • Lost wages.

  • Back pay.

  • Civil monetary penalties in the amount of:

    • between $250 and $2,000 for each person discriminated against, for an employer's first IRCA discrimination order;

    • between $2,000 and $5,000 for each person discriminated against, for an employer's second IRCA discrimination order;

    • between $3,000 and $10,000 for each person discriminated against, for an employer's third or subsequent IRCA discrimination order; or

    • between $100 and $1,000 for each person discriminated against, for document abuse violations.

  • Attorneys' fees.

(8 U.S.C. § 1324b(g)(2)(B) and (h).)

Statute of Limitations Under IRCA

IRCA discrimination claims must be filed with OSC within 180 days of the alleged discriminatory conduct (28 C.F.R. § 44.300(b)).

 

Major Life Activities

Final ADA regulations were issued on March 25, 2011, and will be effective May 24, 2011. This resource is currently being updated consistent with the final regulations. For more information about the regulatory changes, see Checklist, Disability Definition under the ADAAA Final Regulations (www.practicallaw.com/7-505-7931) and Practice Note, Disability Accommodation under the ADA (www.practicallaw.com/9-503-9007). Major life activities include (42 U.S.C. § 12102(2)(A)-(B)):

General Activities

Bodily Functions

Caring for oneself.

Functions of the immune system.

Performing manual tasks.

Normal cell growth.

Seeing.

Digestive functions.

Hearing.

Bowel functions.

Eating.

Bladder functions.

Sleeping.

Neurological functions.

Walking.

Brain functions.

Standing.

Respiratory functions.

Lifting.

Circulatory functions.

Bending.

Endocrine functions.

Speaking.

Reproductive functions.

Breathing.

Functions of special sense organs and skin.

Learning.

Genitourinary functions.

Reading.

Cardiovascular functions.

Concentrating.

Hemic functions.

Thinking.

Lymphatic functions.

Communicating.

Musculoskeletal functions.

Working.

Operation of an individual organ within body system.

Sitting.

Reaching.

Interacting with others.


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