Your Rights Against Workplace Discrimination and Harrassment FAQ

Answers to common questions on employment discrimination.

I just found out that I carry the genetic marker for a serious disease; can my company fire me if they find out?

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from discriminating on the basis of an employee's genetic information. It also prohibits employers from acquiring this information. Even if the employer learns this type of information inadvertently (for example, by overhearing a conversation between you and a coworker), the employer may not make decisions based on it. For more information about GINA, see Nolo's article Genetic Information and Workplace Discrimination.

My former coworker asked me to be a witness in her sexual harassment complaint, but I'm afraid I'll get fired. What are my rights?

Your employer may not retaliate against you for opposing discrimination or harassment, and this includes being a witness in an internal investigation, an agency investigation, or even a lawsuit. Whether your information hurts or helps your employer, and whether you voluntarily come forward or you are subpoenaed to provide testimony, you are protected from retaliation. For more information, see Nolo's article Workplace Retaliation: What Are Your Rights?

Can my employer refuse to promote me to a position that requires public speaking just because I have an accent?

Not unless your accent interferes with your ability to be understood. Because an employee's accent is often associated with his or her national origin, employment decisions based on accent are examined closely by courts to make sure they aren't discriminatory. If an employee's accent does not impair his or her ability to be understood, the employer may not make job decisions on that basis. For more information on fluency and language requirements, see Nolo's article Language and Accent Discrimination in the Workplace.

My boss won't consider me for a transfer to our IT department because he thinks older guys like me (I'm 65) don't understand the latest technological developments. Is this legal?

It's not legal to make job decisions based on age. What you're describing is all too common: Without intending to discriminate, some employers rely on stereotypes and assumptions about particular groups of people when they make decisions. Whether the stereotype is that older people can't turn on their iPhones or that women can't use power tools, this type of thinking is biased. Making decisions based on stereotypes about protected groups -- rather than by assessing the actual skills and abilities of individual employees -- is illegal discrimination. For more information, see Nolo's article Your Rights Against Age Discrimination.

Can my employer pay men more than women to do the same job? The men have more seniority, but we're all doing the exact same work.

Yes. The Equal Pay Act, the federal law that mandates equal pay for equal work, allows employers to pay employees at different rates if that difference is based on something other than gender, such as productivity, quality of work, or seniority. Even if you're doing the same job, paying more to employees who've been there longer is legal. For more information, see Nolo's article The Equal Pay Act: Equal Pay for Women.

Can I be fired because I'm gay?

It depends on which state you work in, believe it or not. Currently, federal law doesn't protect employees from discrimination based on their sexual orientation (although legislation that would create this protection is introduced in every session). But about half the states and the District of Columbia do protect employees from sexual orientation discrimination, as do many local (city and county) governments. For more information, see Nolo's article Sexual Orientation Discrimination: Your Rights.

Is race discrimination really that common any more?

Race discrimination still happens -- in fact, it's more common than any other type of discrimination, judging by the charges filed at the Equal Employment Opportunity Commission (EEOC). Every year, more charges filed with the agency have alleged race discrimination than discrimination on any other basis. More than 35,000 charges of race discrimination were filed in each of the last couple of years. To learn more about what race discrimination is and what to do if you fall victim, see Nolo's article Fighting Race and National Origin Discrimination.

Which conditions count as disabilities under the Americans with Disabilities Act -- and which do not?

Generally, the Americans with Disabilities Act (ADA) looks at the effect a condition has on the person to decide whether that condition is a disability. A disability is defined as a physical or mental impairment that substantially limits a major life activity, such as walking, seeing, or taking care of oneself. Because courts were interpreting this language in a limited way that left a lot of people with serious conditions unprotected, Congress passed the Americans with Disabilities Act Amendments Act (ADAAA), which makes it clear that the term "disability" should be defined more broadly -- in favor of covering more people.

Among other things, the ADAAA includes major bodily functions in the list of major life activities, so impairments that are not yet evident on the surface but are causing serious problems within the body (such as the early stages of HIV and cancer) qualify as disabilities. The law also provides that impairments that are in remission but would affect major bodily activities when active are disabilities under the law. For more information on the ADA and the ADAAA, see Nolo's articles Disability Discrimination in the Workplace: An Overview of the ADA and ADA Amendments: More Protections Against Disability Discrimination.

I'm applying for jobs, and I use a wheelchair. Are employers legally allowed to ask me about my condition?

Employers are not allowed to ask applicants about their disabilities, even if the disability is clearly evident. Employers may ask applicants whether they can -- and how they would -- perform the job's essential functions, as long as they ask all applicants these questions, not just applicants with obvious disabilities. If you will need a reasonable accommodation to apply for the job or to perform it once hired, you may want to bring that up during the interview. Otherwise, the employer may mistakenly assume that you won't be able to do the job because of your condition. For more information, see Nolo's article Getting Hired With a Disability.

Does my employer have to give me my Sabbath day off?

It depends. Employers are obligated to reasonably accommodate an employee's religious practices, but only if it wouldn't pose an undue burden. If an accommodation would impose more than minor costs, substantially harm the morale of other employees, or create a significant disruption in work routines, the employer need not provide it. So, if you work for a large employer and there are plenty of employees available to switch days off with you, your employer might have to accommodate your request. On the other hand, if taking your Sabbath off would require the employer to hire another employee or force current employees to work when they don't want to, that might be more than the law requires. For more information on religious accommodation, see Nolo's article Your Rights Against Religious Discrimination.

I'm offended by my coworkers' constant X-rated comments and jokes; what should I do?

If your coworkers are making your working environment hostile through unwelcome conduct or statements, that might be sexual harassment. The best place to start in this type of situation is with the perpetrators: Tell your coworkers, clearly and firmly, that their behavior offends you and has to stop. This often works. If it doesn't, use your employer's procedure for making internal complaints of harassment. In the absence of a policy, ask your manager or someone in the human resources department how to make a sexual harassment complaint. This gives your company a chance to stop the behavior; it's also a necessary prerequisite if you might later take legal action. For more information, see Nolo's article Fighting Sexual Harassment.

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