Employment Discrimination & Civil Rights

Q: Do the antidiscrimination laws protect only women and minorities?

A: No. The antidiscrimination laws protect all workers from employment decisions based on protected status. Thus, if an employer pays a female worker better wages than a male worker performing the same job, that employer may have discriminated against the male worker based on his sex in violation of Title VII. Similarly, if an Asian-American worker who misses three days of work is suspended but a Caucasian worker who misses three days of work is fired, then the Caucasian worker may have been discriminated against on the basis of race.

Q: How do I know if an action is discriminatory in violation of the law?

A: First, the law does not forbid all discriminatory actions. The law only prohibits discrimination when it is based on a person's protected status under federal law--race, color, religion, national origin, sex, age, disability, or union activity.

Thus, if an employer makes a decision because of an employee's race, that employer has engaged in prohibited discrimination. Paying a worker lower wages than other employees because that worker is an African-American violates Title VII. But paying a worker lower wages than other employees because that worker is performing different kinds of job duties does not violate Title VII. The question is whether the reason for the difference in treatment is based on the employee's protected status. Different treatment based on protected status is called intentional discrimination or disparate treatment.

Title VII also prohibits conduct that has the effect of discriminating against people in a protected class even if the employer's reason for the different treatment is not based on protected class. For example, an employer may decide to hire only applicants who do not have custody of preschool-age children. On its face, the reason for the employer's hiring decision is not a protected class reason. However, the effect of this policy is disproportionately to screen out female applicants as compared with male applicants because more women are custodial parents. This policy, therefore, would have a discriminatory effect, also called disparate impact. Title VII also prohibits disparate impact discrimination, unless the employer can prove that the policy is required by business necessity and is significantly related to the requirements of the job.

The ADA defines discrimination not only in terms of disparate treatment and disparate impact but also in terms of a refusal to provide reasonable accommodation to an otherwise qualified individual with a disability.

Q: What should I do if I think I have been discriminated against in violation of the law?

A: It is usually a good idea to bring your complaint directly to the attention of the employer and attempt to resolve the problem informally. The employer may not be aware that people within the organization are discriminating, or the employer may want to address your complaint and fix the problem.

If, however, you want to pursue a legal remedy, you should get expert advice and act relatively quickly. Antidiscrimination laws have strict time limits for making a claim. The federal laws require employees to file a complaint first with the EEOC before filing a lawsuit in court. In some circumstances, an employee is also required to file a complaint with the state agency charged with enforcing the state's antidiscrimination laws. For claims arising under the NLRA, employees are required to file a charge with the NLRB.

Lastly, if you are fired or not hired for discriminatory reasons, you should look for another job. Do so even if it seems that you are entitled to the former job. If you do not actively seek other work, it appears as though you are not seriously interested in employment. This can weaken your claim and may limit any award of back pay.

Q: Am I protected if I complain about discrimination to my employer, or if I file a charge with the EEOC or the NLRB?

A: Federal law makes it illegal for an employer to retaliate against an employee because the employee has participated in enforcement procedures. This protection applies not only to current employees but also to former employees and applicants. Thus, it is illegal for an employer to give a former employee a negative job reference because the employee filed an EEOC or NLRB charge.

You are protected if you file a charge, testify at a hearing, or assist the government in the investigation. Moreover, Title VII, the ADA, and the ADEA also protect you if you have opposed discrimination. For example, an employee who complains to the employer about sexual harassment at work is engaged in protected opposition activity. However, the employee must have a reasonable and good-faith belief that the conduct complained of violates the law. Parallel antiretaliation protections may also exist under state law.