FAQs on Discrimination
Lawmakers have worked hard to pass laws against employment discrimination. Today, the U.S. has some of the toughest anti-discrimination laws in the world. These laws prohibit most employers, employment agencies and unions from discriminating against job applicants and employees based on:
- National origin
Learn more about different types of discrimination here:
What is age discrimination?
Federal law prohibits most employers from discriminating against job applicants and employees based on age. The Age Discrimination in Employment Act (ADEA) protects people age 40 and older from age-based discrimination. Illegal discrimination can occur in hiring, training, benefits, compensation, promotion, firing, layoffs and other terms, conditions and privileges of employment.
In general, employers cannot:
- Discriminate against anyone age 40 or older
- Discriminate based on age in advertisements for available positions, the application process or interviews (with narrow exceptions)
- Discriminate against older workers when reducing the size of their staffs
- Force their employees to take early retirement (but they may offer early retirement incentive packages)
- Retaliate against workers who file, testify, or participate in an ADEA claim
These claims can be difficult to prove. An employee may show direct evidence of age-based bias that caused an adverse job action. Then the employer will have a chance to demonstrate that it would have made the same employment decision whether or not the employee had been over 40 years old.
These cases are often based on circumstantial evidence – as opposed to direct evidence, like an employer’s email explicitly stating that an employee is “too old” – which is what makes these cases sometimes difficult to prove. The employer will likely argue that its decision wasn’t based on age, but on some other legitimate factor. However, the employee may still have the opportunity to show that the employer’s explanation for the decision is not credible.
What is disability discrimination?
The Americans with Disabilities Act (ADA) protects the disabled from discrimination in communications, public accommodations, transportation, governmental activities, and employment.
Most employers are prohibited from discriminating against qualified individuals with disabilities in hiring, firing, benefits, compensation, promotion, training and other aspects of employment.
Definition of disabled
Under the ADA, a disabled person:
- Has a mental or physical impairment that substantially limits one or more major life activities such as breathing, walking, hearing, seeing or speaking
- Has a record of this type of impairment or is viewed as having such an impairment
This is a person who has the skills, education and experience that are necessary for the job and can perform the essential functions of the job with or without reasonable accommodations. This means that the individual must be able to do the tasks that are important to the job, but not those that are secondary to the job.
An employer makes this adjustment so that an employee with a disability can perform the essential functions of the job, such as:
- Allowing the employee to telecommute
- Modifying equipment or facilities
- Adjusting the employee’s work schedule or job structure
- Reassigning the employee to another available position
If the accommodation is an undue burden for the employer – too expensive or disruptive, for example – the employer is not required to provide it. The size and resources of the employer are taken into account in determining whether an accommodation is an undue burden. Many accommodations, however, are low-cost and easy to provide, allowing the disabled individual to engage in productive activity at work.
These interview questions either violate the law or may be objectionable:
- Do you have a disability?
- Why do you need a wheelchair?
- Have you ever filed for workers’ compensation?
- Are you on any medications?
In general, an employer should ask relevant questions regarding disability only after making a conditional job offer. At that time, the employer may look into making reasonable accommodations. If the applicant brings up his or her disability during the interview, the employer may discuss it as it relates to the duties of the job.
What is racial discrimination?
Title VII of the Civil Rights Act bans employers from discriminating against employees or job applicants based on race. Basing decisions on stereotypes or assumptions regarding race, color or national origin; ancestry, birthplace or culture; linguistic characteristics; or surname associated with a specific national origin, is prohibited.
Overt discrimination is illegal, as is subtle discrimination, such as workplace policies that negatively affect members of a specific racial group.
Inappropriate interview questions
- What is the origin of your last name?
- You look exotic. Are you mixed race?
- Where do your people come from?
Other types of race, color & national origin discrimination
Title VII prohibits on-the-job discrimination and discrimination during the interview process, but it also protects workers from discrimination based on their personal lives.
An employer may not discriminate against an employee or applicant because of the race, color or national origin of the people with whom an employee or applicant associates.
An “English-only” rule at work may violate Title VII national origin rules unless it is necessary to the business. The employer must inform employees when English must be spoken and the consequences for violating the rule.
Keep a log
If you experience discrimination on the job (or are asked inappropriate interview questions), it’s a good idea to keep a log with as much detail as possible. Determine your employer’s policy for reporting such events and consult with an attorney to make sure you preserve your rights.
What is sex discrimination?
Employers may not discriminate in decisions on hiring, advancement, transfer, pay, benefits and other employment-related conditions based on the employee’s or applicant’s sex. Both women and men are protected from gender-based discrimination.
Sex discrimination occurs in many different forms, such as when a woman does not get a promotion because her boss believes that she is on the “mommy track,” or when a man is not promoted because he does not fit the male gender stereotype.
Disparate impact discrimination occurs when an employer implements an apparently neutral regulation that has an adverse effect on one sex. If the policy relates to a bona fide occupational qualification (BFOQ), then it is acceptable; otherwise, it may be sex-based discrimination.
Disparate treatment discrimination is more straightforward. It occurs when the employer treats an individual or group differently because of sex/gender.
The Equal Pay Act requires employers to pay employees the same amount for the same work, regardless of gender. Equal work means that the jobs in question require equal skill, responsibility and effort and are performed under similar conditions for the same employer.
The Equal Pay Act does not apply if one worker is more productive or has more seniority. While job duties must be the same, job titles do not need to be identical. The Equal Pay Act applies to wages and most benefits.
Title VII, through its Pregnancy Discrimination Act amendment, protects pregnant women from discrimination based on pregnancy, childbirth, or a related medical condition. Employers also may not discriminate in hiring, provision of leave, benefits or other conditions of employment. A pregnant employee should be treated just the same as any other employee.
- Quid pro quo harassment occurs when some benefit of employment depends on an employee’s submission to unwelcome sexual conduct or requests. If the employee does not submit to the request, the benefit is denied or the employee will experience an adverse employment decision.
- Hostile environment harassment occurs when the action of supervisors, coworkers or customers creates an intolerable, abusive working environment, or significantly interferes with the employee’s ability to work.
What is the time limit to file a claim for discrimination?
Title VII imposes time limits for bringing a charge of discrimination. In general, a claim must be filed within 180 days of the alleged act of discrimination, but individual states’ laws may set out different time limits. It is best to contact an attorney in your state to advise you on specific time limits and other red flags.
The Employment Law Office of John H. Haskin & Associates, LLC, is located in Indianapolis and serves clients throughout Indiana. For more than three decades, we have successfully represented employees in legal disputes with their employers. Our attorneys only represent employees, never employers.