Discrimination

What is Job Discrimination

Job Discrimination: Protected Category

If your employer doesn't like you and fires you, it isn't necessarily actionable discrimination. The employer must be discriminating on the basis of a "protected category" for the discrimination to be illegal.


The Courts & Statutes and Job Discrimination

So far, the courts have allowed employers to discriminate against people on the basis of long hair and facial hair (except when worn for religious reasons), weight (except when the weight is because of a medical condition), and because the employer wants to hire a family member or promote a family member. Under the law, an employer can refuse to hire you because you are too young, but not because you are too old (over forty). None of these are protected categories.


In other words, if the category of the discrimination isn't spelled out in a statute, the employee is not protected from that form of job discrimination. Therefore, if the boss doesn't like you, but you don't know why, or the category isn't protected by law, he can fire you or not hire you for that reason.


Age Discrimination


Under law, there are some special limitations on who can sue.


People under forty years old are not protected by age discrimination in the workplace laws. If an employer refuses to hire somebody because he or she is thirty-nine, and therefore "too young", that is not illegal. But if it because he or she is forty and "too old", that is illegal.


Age discrimination has some special aspects that make it different from other types of employment discrimination. A few of these are discussed below.


Golden Handshakes

Sometimes when employers are down-sizing, they lay people off by offering "golden handshakes", which are special packages to employees who agree to take early retirement. This is not age discrimination. However, if it is being done for the purpose of getting rid of older workers just because of their age, and if it can be shown that there is a real discriminatory motive, that is illegal.


Replacing Older Workers

It is illegal to replace a person over 40 with a person under 40, if age is the reason. It is also illegal to replace a person over forty with a younger person who is also forty.


Replacing Higher Earners and Age Discrimination in the Workplace

It is not illegal to replace people who are making high wages with people who will make less because they have less seniority.


However, this usually means replacing older workers with younger ones. If the wage considerations are not the real motivator, and the employer is actually trying to replace older workers with younger ones, that it illegal. Here, the employee must prove that it is the age, not the wages, which is motivating the employer to fire the older workers.


National Origin Discrimination
National Origin Discrimination is different than race discrimination. It happens when an employer discriminates because of where someone was born. Obviously, race discrimination and national origin discrimination can often go hand-in-hand. 

The Immigration Reform and Control Act, (IRCA) prohibits employment discrimination because of national origin against U.S. citizens, U.S. nationals, and authorized aliens.

A "U.S. citizens only" policy in hiring is illegal. An employer may require U.S. citizenship for a particular job only if it is required by federal, state, or local law, or by government contract. 

An employer may not discriminate because of citizenship status against U.S. citizens, U.S. nationals, and the following classes of aliens with work authorization: permanent residents, temporary residents (that is, individuals who have gone through the legalization program), refugees, and asylums. 

Title VII of the Civil Rights Act of 1964 bans national origin discrimination against any individual.

Sexual Orientation Discrimination
Sexual Orientation Discrimination and Combination With Other Laws .
Frequently the same actions that violate the laws against sexual orientation discrimination violate other laws as well. It is possible that an employer who is discriminating on the basis of sexual orientation is also discriminating on the basis of gender.

For example, a male employer asks a lesbian employee to sleep with him. She says no, and mentions her sexual orientation. He says that he won't employ a lesbian and fires her. It could be argued that he has also discriminated on the basis of sex, because it's illegal for him to fire her just because she didn't sleep with him. That would be a form of sexual harassment, and therefor unlawful.

Disability Discrimination & Workers´ Compensation Claims
The Employee Injured On the Job
An employee injured on the job is entitled to file a worker compensation claim. The employee's injury may be temporary or permanent and may be of a nature that the worker can continue to work or require the worker to take time off work.

Employer Retaliation and Employee Claims
Under State law, if the employer retaliates against the employee for filing a worker's compensation claim, the employee can also file a claim for additional compensation to punish the employer under the worker compensation claim.

What happens under the disability discrimination laws if the employer also fires the worker?

It depends on whether the employee is able to do his job either with or without accommodation. If the injured employee can do his or her job, the employer cannot fire the employee even if the employer thinks the employee may get reinjured on the job.

If the employee is fired when the employee can do the job, the employee can also file a claim for discrimination.

Damages
Damages recoverable under worker compensation are very limited and set by a predetermined formula. Damages under disability discrimination can include all, part, and future loss of wages, benefits, emotional distress, attorney fees and even punitive damages.

The Jury's Point of View on Disability Claims, Workman's Compensation
What happens if the doctor says the injured worker can't do the job, needs retraining, but the worker is actually doing his or her job?

If the employer's doctor tells the employer that the injured worker can't perform his job, but the worker is actually doing the job, then the employer who fires the worker, does so at his own peril.

The jury will probably use their common sense and say that if the worker is doing his or her job, then the doctor is wrong.

Juries don't like malingerers but do like people who stick it out and try to work even if injured. Therefore, the injured employee who wants to work has the jury sympathy and the employer who fires that injured worker may face the wrath of the jury.

The Glass Ceiling
The Corporate Pyramid and Glass Ceiling Discrimination.
Think of a corporation as a pyramid. At the top is the Chairman of the Board and the President. As one goes lower on the pyramid one finds the Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, Mangers, Directors, Supervisors, and eventually one gets to the large number of workers who do the day to day work.​

The Workers
Next let's suppose that this corporation has one thousand workers who are comprised of fifty percent female, ten percent African American, twenty percent Latino, etc. In looking at the numbers, the corporation can claim that they don't discriminate against any protected group.

The Glass Ceiling
Now let's see where these workers are located in the pyramid. Let's assume we draw a horizontal line in the pyramid at the Manager's level, approximately two-thirds up the pyramid. Above that line are the Managers and executives of the corporation. When we look at that imaginary line, we find that 100 percent of the people from managerial positions to chairman of the Board are white, Angle-Saxon males. The imaginary line is the glass ceiling, below which is found the group of females, the African Americans, the Latinos, etc. and above which the females, African Americans, Latinos, etc., can't rise. That imaginary line may apply to all or any one of a protected group.

Glass Ceiling Discrimination Potential Class Action
Glass ceiling cases are primarily proven by statistics. If all women cannot rise above the position of supervisor, then all women are being discriminated against in promotion and hiring. Therefore, any glass ceiling case is a potential class action case.

Gender or Sex Discrimination
Terms or Conditions of Employment
Sex discrimination is treating an employee or employees differently because of their gender. Whenever this discrimination affects the "terms or conditions of employment", it is illegal. "Terms or conditions of employment" means just about anything relating to someone's job: their position, pay, title, hours, vacations, most everything is a term or condition of employment. Whether or not a person is hired is also considered a term or condition of employment.

Disparate Treatment & Disparate Impact
There are two types of sex discrimination: "disparate treatment & disparate impact"

Disparate Treatment
Disparate treatment is straightforward discrimination. Simply put, it is treating a person differently because of his or her sex.

Disparate Impact
Disparate Impact Discrimination is more complicated. "Disparate Impact" is where some type of company policy excluded a certain individuals from the job or from promotions. The policy wasn't designed to exclude them; that was just the unfortunate result.

One example arose often in fire departments. These agencies had various strength requirements for job applicants. Women were frequently unable to meet these requirements. In some instances, the requirements were absolutely necessary to ensure the firefighters were qualified. But in many instances, the requirements were simply too high; the were more than was necessary. Qualified women were therefore being excluded unnecessarily. This does not mean the fire departments were necessarily trying to exclude women. That was just the result of their policy; it had a disparate impact upon women. Because the policy wasn't sufficiently job-related (too much strength was required) there was discrimination.

Stereotyping
It is also illegal to make employment decisions based on stereotypes regarding gender.

For example, in on case an employer was held to have violated the Federal Title VII anti-discrimination law when it delayed a female employee´s promotion based in part on evaluation comments describing her as "macho" and advising her to "take a course in charm school". This woman was treated differently because of her gender, and because she seemed too "male".

Gender Roles
Frequently employers expect women to have certain duties, such as caring for children. In one case, an employer did not hire women with preschool-age children, while at the same time it did hire men with preschool-age children. Even though most of the people it hired were women, there was still discrimination. The employer didn't think women with young children should be working outside the home. The employer is entitled to this belief. But he couldn't let it affect his employment decisions. When his beliefs did influence his hiring decisions, he broke the law.

Pregnancy Medical Leave & Accommodations

Discrimination based on pregnancy is illegal under both the State and the Federal Title VII laws

This includes discrimination based on pregnancy, childbirth, or related medical conditions.

Even discrimination based on the "potential" for pregnancy is illegal. For example, in one case a manufacturing company would not allow women to work certain jobs because if they were pregnant there could be harm to their fetus. This was illegal discrimination.

Accommodating Pregnancy
Employers have a number of responsibilities to employees who become pregnant. For instance, if a woman becomes pregnant, and with the advice of her doctor asks for a position that is less strenuous or hazardous, the employer must transfer her to another position if it has one, or can make one without being "unduly burdened". Basically, if its not too much trouble for the employer to accommodate the woman's needs, he has to do it.

Pregnancy Family Medical Leave
Federal Title VII Law does not explicitly require employers to grant Pregnancy leave, although it does prohibit Pregnancy discrimination. However, the Federal Law does require employers to grant medical leaves, which are applicable to pregnant women (See separate section on family and medial leave.)

A "reasonable period of time" is the time period where the woman is "disabled" because of her pregnancy, childbirth, or related medical conditions. "Disabled" in this context simply means she cannot work. During a Pregnancy leave, a woman may also use any vacation time she has accrued.

Employers can require any employee who plans to take a pregnancy leave to give the employer reasonable notice of the date the leave will start and how long it is expected to last.

Employers generally cannot force a pregnant employee to go on pregnancy family medical leave. It is there if the woman wants it. However, if the employer can show that the woman absolutely cannot do her job, or is "disabled" by the pregnancy, he may be allowed to make her take a leave of absence. This is, however, a very difficult situation for the employer, because it is likely that the Pregnancy can somehow be accommodated, which means the woman should be allowed to stay.

Racial Discrimination In The Workplace
It is illegal under both Federal and State Law to discriminate in the "terms or conditions of employment" on the Basis of a person's race or color.

"Terms or conditions of employment" means just about anything relating to someone's job: their position, pay, title, hours, vacations, most everything is a term or condition of employment. Whether or not a person is hired is also considered a term or condition of employment. Race is generally defined as a person's ancestry or ethnic characteristics. Everyone is some race or color. This means that it is illegal to discriminate against anyone, if the basis is their race or color.

Employment race discrimination in the workplace based on association with people of a particular race is also prohibited. For instance, if an employer fired a white employee because she had black friends, or was dating a black man, the white woman would have a discrimination suit, whether or not the employer is prejudiced against whites.

It is also illegal to discriminate on the basis of "color". In one case, an employer hired a "light-complexioned" black applicant with "Caucasian features" over another black applicant who had a "dark complexion" and "Negroid features". This was also against the law, even though in a strict sense one race wasn't being preferred over another.

There are two types of race discrimination in the workplace: "disparate treatment" and "disparate impact" .

Disparate Treatment, Race Discrimination In The Workplace
"Disparate treatment" is straightforward discrimination. Simply put, it is treating a person differently because of a protected class, like sex or race.

Disparate Impact Discrimination In The Workplace
Disparate Impact Discrimination is more complicated. "Disparate Impact" is where some type of company policy excluded a certain individual or individuals from the job or from promotions. The policy wasn't designed to exclude them; that was just the unfortunate result.

One example arose often in fire departments. These agencies had various strength requirements for job applicants. Women were frequently unable to meet these requirements. In some instances, the requirements were absolutely necessary to ensure the firefighters were qualified. But in many instances, the requirements were simply too high; the were more than was necessary. Qualified women were therefore being excluded unnecessarily. This does not mean the fire departments were necessarily trying to exclude women. That was just the result of their policy; it had a disparate impact upon women. Because the policy wasn't sufficiently job-related (too much strength was required) there was discrimination.

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