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Employment Law Basics

Asserting Your Rights

If you believe you have been harassed or discriminated against at work, your best strategy is to talk to an experienced employment lawyer right away. A lawyer can review the facts of your situation and assess how strong your claims are. If you decide to take action, a lawyer can help you negotiate a settlement with your employer, file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), and file a lawsuit. Age Discrimination.

Age Discrimination

As the Baby Boomers get older, age discrimination claims have grown more common. In the past few years, the Equal Employment Opportunity Commission (EEOC) -- the federal agency that interprets and enforces antidiscrimination laws -- has received more than 20,000 charges of age discrimination per year. Age discrimination is prohibited by the federal Age Discrimination in Employment Act (ADEA). Unlike other discrimination laws, the ADEA doesn't ban "reverse" discrimination. Discrimination is prohibited only against those who are at least 40 years old; younger workers aren't protected. 

This section covers the ADEA and age discrimination. It also includes articles on the Older Workers Benefit Protection Act, an amendment to the ADEA that prohibits age discrimination in benefits and regulates waivers of the right to sue an employer for age discrimination. 

Discrimination and Harassment

Federal law prohibits employers from making job decisions based on an employee's or applicant's race, skin color, national origin, sex, religion, disability, genetic information, or age (if the person is at least 40 years old). These laws generally apply only to employers with at least 15 employees (the Age Discrimination in Employment Act applies only to employers with at least 20 employees). Almost every state also has laws prohibiting discrimination, and some of these laws apply to smaller employers or cover additional characteristics, such as sexual orientation and marital status.

 

The intent of these laws is to create equal employment opportunity for everyone, without regard to traits that have led to unfair mistreatment in the past. Unfortunately, the work of these laws is unfinished: Almost 100,000 charges of discrimination were filed with the Equal Employment Opportunity Commission in 2010 alone, the highest number since the agency opened its doors. This section explains the laws that prohibit discrimination, as well as what to do if your rights have been violated. It also covers harassment and retaliation.

Harassment

Harassment is defined as offensive, unwelcome conduct, based on the victim's protected characteristic (such as sex or religion), that is so severe or pervasive that it affects the terms and conditions of employment. This might take the form of "quid pro quo" harassment, in which the victim's job opportunities are conditioned on putting up with the harassment. ("If you want that raise, you'll agree to go out with me.") Or, it might take the form of hostile environment harassment, in which the workplace is poisoned by biased comments, lewd behavior, and other inappropriate behavior.

National Origin

Discrimination on the basis of national origin is prohibited by Title VII of the Civil Rights Act of 1964, the major federal antidiscrimination law. Employers subject to Title VII may not make employment decisions based on birthplace, ancestry, culture, native language, surname, or other characteristics that are closely associated with someone's country of origin.

Special rules apply to language requirements. The languages people are comfortable speaking, accents, and fluency are all closely related to national origin. At the same time, however, the law recognizes that an employer may have a legitimate need to make sure customers can understand employees and employees can speak to each other in a common language, for example.

Race Discrimination

Employment discrimination on the basis of race still happens more often than anyone wants to believe: In 2010, the Equal Employment Opportunity Commission received more than 35,000 charges of race discrimination. It exacts a very high price, both from its victims and from the companies where it occurs. 

An employer commits race discrimination when it makes job decisions based on race or when it adopts seemingly neutral job policies that disproportionately affect members of a particular race. Race discrimination in private employment is prohibited by two federal laws: Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866. The articles in this section cover both laws, as well as the process for bringing a race discrimination lawsuit and the remedies available to successful litigants. 

Religious Discrimination

Religious discrimination occurs when employees or applicants are treated differently because of their religious beliefs (or lack thereof). Favoritism -- by which an employer favors those who share his or her religious beliefs -- is also prohibited. And, employers are legally required to reasonably accommodate their employees' religious practices and beliefs, unless doing so would impose more than a minimal cost or burden on the business. 

Retaliation

In recent years, more than a third of the charges filed with the Equal Employment Opportunity Commission have included an allegation that the employee was retaliated against for asserting his or her rights. In a retaliation case, the employee claims that the employer took a negative job action (such as firing or demoting the employee) because the employee complained of harassment or discrimination. Even if the underlying complaint turns out to be unfounded, the employee can still win a retaliation claim by showing that something negative happened because of the complaint. 

Without protection from retaliation, the laws prohibiting harassment and discrimination would be very difficult to enforce. After all, if an employee could be fired for making a complaint, very few employees would be willing to report problems. Judges and juries alike seem to recognize this. Juries often slam employers found guilty of retaliation with high damage awards. And the Supreme Court has issued a series of decisions in retaliation cases that side with employees. 

Sex Discrimination

Sex discrimination happens when an employer treats employees or applicants differently because of their gender. Pregnancy discrimination is a form of sex discrimination, as is sexual harassment.

Outright sex discrimination used to be more common in the past, with advertisements for a "Gal Friday," signs posted saying "Men Only Need Apply," and pregnant employees being forced out of their jobs once they were "showing." These days, sex discrimination is more likely to take the form of stereotyping based on gender roles -- that women should (or will want to) stay home with their children, or that men are more likely to be assertive, for example.

Sexual Orientation Discrimination

Currently, no federal law prohibits private employers from discriminating based on sexual orientation. That could change in the future, if Congress passed the Employment Nondiscrimination Act (ENDA), a bill that's been introduced in nearly every Congressional session for the last 15 years. Polls consistently show that a majority of voters support providing these job protections to gay, lesbian, and transgender employees and applicants.

Pregnancy Discrimination

Pregnancy discrimination is a form of sex discrimination, made illegal by Title VII. Employers may not discriminate against employees because of pregnancy, childbirth, or related medical conditions in any aspect of employment, from hiring to firing. 

Employers must treat pregnant employees who are temporarily unable to work due to pregnancy just as they treat other employees who are temporarily disabled -- no better and no worse. If an employer provides disability leave to employees with serious illnesses, for example, it must provide the same leave to an employee who is temporarily disabled by pregnancy. 

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