What you should know about employment discrimination
Employers and employees are usually aware that discrimination in the work place is illegal. The definition of illegal discrimination, however, can be difficult to understand. As I have shared with clients in the past, it is not illegal for a boss to be a lout. But when does questionable behavior cross the legal line? Knowing the answer can protect both the employer and the employee.
Generally speaking, discrimination happens when an employee (or potential employee) is treated differently than other employees. There are a variety of legal reasons for an employer to “discriminate” between employees- skill levels, experience, length of time on the job, etc. Discrimination becomes illegal when the employee is treated differently because they belong to a particular category of people. Our legal system recognizes that throughout our nation’s history certain segments of society have been treated differently in the work place for reasons that have nothing to do with job performance. Anti-discrimination laws establish “protected classes” as a means of leveling the employment playing field. Thus, “discrimination” becomes “illegal discrimination” when an employee is treated differently than others solely because the employee is a member of a protected class.
Federal anti-discrimination employment laws
There are a number of federal laws that define “protected class.” The Civil Rights Act of 1964 prohibits employment discrimination based on the employee’s race, color, religion, sex or national origin. The Age Discrimination Act of 1967 protects employees over the age of 40. The Americans with Disabilities Act of 1990 prohibits employment discrimination against qualified individuals with disabilities in the private sector and within state and local governments. (A 1973 law prohibits disability discrimination by federal government employers.) These are just a few of the federal laws that govern employment relationships.
Unlawful discrimination is defined by federal laws in a variety of ways. “Unlawful discrimination” can include harassment based on the basis of membership in a protected class. It includes retaliation against an individual for filing a charge of discrimination, participating in an investigation or opposing the employers discriminatory conduct. Employer decisions based on stereotypes or assumptions about members of a protected class constitutes illegal discrimination, as does denying employment opportunities to someone because that person is married to a member of a protected class.
Unlawful discrimination also includes employment practices which, while not necessarily targeting a specific individual, have an adverse impact on employees simply because of their membership in a protected class. For example, a school systems policy of only hiring new teachers with less than 5 years experience has been found to be age discrimination. Even though the policy did not specifically prohibit hiring anyone over a particular age, the impact of the policy disproportionately disadvantaged older teachers. The school system could offer no legitimate business interest for its hiring policy and as such was in violation of federal law.
An employer can be held responsible for discrimination in the workplace even when the discrimination is not a result of the employer’s own conduct. An employer can be liable for unlawful discrimination when the employer knowingly allows the existence of a “hostile work environment.” Such an environment exists when employees are subjected to harassment (ridicule, intimidation or insults) by other employees because of their membership in a protected class. If the employer becomes aware of the situation and fails to take corrective measures the employer may be subjected to a claim of unlawful discrimination. While a court may ultimately find that employee behavior was merely offensive and did not rise to the pervasiveness necessary to establish unlawful discrimination, the employer runs a serious risk in not taking complaints about employee conduct seriously.
Federal anti-discrimination laws make it illegal to discriminate in the hiring and firing of employees based on their membership in a federally-defined protected class. But they also apply to a wide range of other employment related activities: compensation, assignment and classification of employees; transfers, promotions, layoffs and recalls; job advertisements, recruitments and testing; use of company facilities; access to training programs; and pay, retirement plans, disability leave and fringe benefits.
Whether federal anti-discrimination law will apply to a particular private employer typically depends upon the number of employees. One notable exception is the Equal Pay Act of 1963 which prohibits sex-based wage discrimination (paying one gender less for doing substantially the same work as their opposite gender colleagues.) This law applies to all employers who are covered by the Federal Wage and Hour Law, which is virtually all employers.
Vermont and New Hampshire anti-discrimination employment laws
Both Vermont and New Hampshire have their own anti-discrimination laws in addition to the federal laws. In both states the laws are known as the “Fair Employment Practices Act.” In Vermont the laws apply to every employer; in New Hampshire they apply to employers with six or more employees. New Hampshire also excludes from the definition of employer (for purposes of fair employment practices) certain social clubs, fraternal organizations and religious associations.
The federal and state laws are similar in many respects. One noteworthy difference, however, is the definition of “protected class.” New Hampshire defines “protected class” to include marital status and sexual orientation (prohibiting discrimination against people who are- or who are perceived to be gay, lesbian, or bisexual.) While gender identity is not specifically recognized as a protected class, New Hampshire has recognized the right of transgendered people to pursue anti-discrimination claims under the state’s disability discrimination category.
Vermont includes sexual orientation in its definition of protected class, but also specifically includes gender identity and “ancestry.” Vermont also prohibits employment practices which discriminate against someone solely on the basis of having had a positive HIV-related blood test. (It is illegal in Vermont to make the taking of an HIV-related blood a condition of employment.)
In Vermont drug addiction and alcoholism are considered physical or mental impairments protected by its anti-discrimination law. (No protection is afforded if current drug or alcohol use prevents the employee from performing their job duties or if their employment would threaten the safety or property of others.) Federal law protects people who suffer from alcoholism but not people who use illegal drugs. New Hampshire’s law mirrors the federal policy.
In both states the laws encompass the federal law protections by reference, but also provide for independent legal claims. An employee can file suit under both state and federal law, lose the federal law case but still prevail on claims based on the state law. (The general rule is that federal law provides a minimum basis of Constitutional protections; states are free to provide protection above and beyond the federal law.)
What can employers do?
It would be impossible for an employer to completely eliminate the potential for claims of discrimination. And not every complaint of discrimination made by an employee rises to the level of unlawful discrimination. But litigating such claims comes with the risk inherent in asking a judge or jury to decide, as well as the cost in money, time and resources. Taking steps to minimize the potential for employment discrimination makes financial sense.
- Work with a legal or human resource professional to develop a discrimination policies and procedures manual for all employees. Keep the manual up to date;
- Review the manual with management staff and have them sign off on having taking training and understanding their responsibilities. Hold management accountable for what goes between employees on in the work place;
- Require employees to review the manual, and consider requiring periodic training on discrimination issues;
- Provide employees a method for bringing complaints forward and encourage them to bring complaints forward sooner rather than later;
- Hire a human resources professional who is trained in, experienced with and sensitive t o discrimination issues;
- Act quickly but thoughtfully when discrimination complaints are brought forward. Involve the employee, the employees manager and the human resources professional. Take disciplinary action that is appropriate to the situation and document the steps taken. Doing nothing in the hope that “things will blow over” is usually the worst thing an employer can do in response to complaints of discrimination.
What can employees do?
Employees who believe they have been the victim of discrimination, harassment or retaliation in employment have several options:
- Bring your concerns to your manager or department head. Follow your company’s internal complaint process. If this fails to resolve the matter in a satisfactory way, consider seeking assistance from an attorney;
- Private sector employment discrimination complaints are handled by the Civil Rights Unit of each State’s attorney general office. State employee discrimination complaints are handled by the state’s Human Right’s Commission;
- Discrimination complaints brought under federal law can be filed with the U.S. Equal Employment Opportunity Commission.