What is Employment Law?
Employment law regulates employers’ treatment of employees.
It says that employers can’t discriminate against employees because of race, gender, pregnancy, national origin, age, religion or disability. It says that supervisors cannot sexually harass women at work. It says that employers must afford reasonable accommodations to qualified persons with physical or mental impairments. And it says that employers cannot retaliate against anyone for complaining about discrimination or standing up against discrimination or harassment at work. Employment law, in essence, is the law that imports our basic civil rights as Americans into our capitalist, corporate economy.
Where would we be without the great civil rights laws? We’d be in a country like Russia, where employers can sexually harass employees with impunity, fire someone when he turns 50, refuse to hire someone in a wheelchair, or punish someone for opposing discrimination at work.
Employment law broadly encompasses the areas of sexual harassment, gender discrimination, sex discrimination, pregnancy discrimination, race discrimination, disability discrimination, religious discrimination, age discrimination, medical leave, FMLA leave, status-based negative stereotypes, and retaliation. The employment laws create important rights that can be enforced in court and provide remedies such as damages for lost wages and benefits, emotional distress, attorney fees and sometimes punitive damages. Let’s examine some of the major civil rights laws in a bit more detail.
If you are 40 years of age or older, and you have been hurt by a decision affecting your employment, you may have suffered age discrimination. The Age Discrimination in Employment Act (ADEA) is a federal law that protects individuals 40 years of age or older from employment discrimination based on age. Here are some examples of potentially unlawful age discrimination:
- You were not hired because the employer wanted a younger-looking person to do the job.
- You received a negative performance evaluation because you weren’t “flexible” in taking on new projects.
- You were fired because your boss wanted to keep younger workers who are paid less.
- You were turned down for a promotion, which went to someone younger hired from outside the company, because the boss says the company “needs new blood.”
- When company layoffs are announced, most of the persons laid off were older, while younger workers with less seniority and less on-the-job experience were kept on.
- Before you were fired, your supervisor made age-related remarks about you, such as that you were “over-the-hill,” or “ancient.”
If any of these things have happened to you on the job, you may have suffered age discrimination.
Disability discrimination means treating individuals differently in employment because of their disability, perceived disability, or association with an individual with a disability. Some examples of disability discrimination may include:
- Discriminating on the basis of physical or mental disability in various aspects of employment, including: recruitment, firing, hiring, training, job assignments, promotions, pay, benefits, lay off, leave and all other employment-related activities.
- Harassing an employee on the basis of his or her disability.
- Asking job applicants questions about their past or current medical conditions, or requiring job applicants to take medical exams.
- Creating or maintaining a workplace that includes substantial physical barriers to the movement of people with physical disabilities.
- Refusing to provide a reasonable accommodation to employees with physical or mental disability that would allow them to work.
If any of these things have happened to you on the job, you may have suffered disability discrimination. If you have a disability and are qualified to do a job, there are federal and state laws protecting you from job discrimination, harassment, and retaliation on the basis of your disability. You are also protected if you are a victim of discrimination because of your association (family, business, social or other relationship) with an individual with a disability.
Pregnancy discrimination involves treating women (applicants or employees) unfavorably on the basis of pregnancy, childbirth, or related conditions. Pregnancy discrimination can include all of the following actions by an employer:
- Refusing to hire a pregnant applicant;
- Firing or demoting a pregnant employee;
- Denying the same or a similar job to a pregnant employee when she returns from a pregnancy-related leave;
- Treating a pregnant employee differently than other temporarily disabled employees; or
- Failing to grant a male employee health insurance coverage for his wife’s pregnancy related conditions if a female employee’s husband has comprehensive health insurance coverage through the same company plan.
Under the law, a pregnancy-related condition may be considered a temporary disability, this may include severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, and any other medical conditions. Your employer must therefore give pregnant employees the same treatment and benefits that it gives to employees with other temporary disabilities.
These are some examples of potentially illegal pregnancy discrimination:
- During an interview, a job placement agency asks an applicant how many children she has and if she is planning to get pregnant again. The applicant says she is four months pregnant. The agency tells her to come back after she has her child and is ready to work.
- A female employee tells her boss at work that she is pregnant. Her boss fires her after learning the news, even though she is still able to work for several more months.
- A pregnant worker at a fast food restaurant asks her boss if she can stop lifting heavy boxes during her pregnancy. The boss says no, even though another employee did not have to lift boxes at work while recovering from surgery. The pregnant worker is forced to quit her job.
- A pregnant worker needs to take time off to visit her doctor for prenatal care. She is docked and eventually disciplined for missing time from work, even though other workers who need ongoing medical treatment are not docked nor disciplined.
Sex or Gender Discrimination
Sex or gender discrimination is treating individuals differently in their employment specifically because an individual is a woman or a man. If you have been rejected for employment, fired, or otherwise harmed in employment because of your sex or gender, then you may have suffered sex or gender discrimination.
In everyday language as well as in the law, the terms “gender” and “sex” are used inter-changeably, but the two terms have different meanings. Social scientists use the term “sex” to refer to a person’s biological or anatomical identity as male or female, while reserving the term “gender” for the collection of characteristics that are culturally associated with maleness or femaleness. Discrimination is generally illegal regardless of whether it is based on sex, or gender, or both sex and gender.
Here are some examples of potentially unlawful sex/gender discrimination that women, for example, may face:
- Hiring/Firing/Promotions: You apply for a job for which you have experience and excellent qualifications, but you are not hired because some of the company’s long-time clients are more comfortable dealing with men; you are told that you are laid off due to company cutbacks and reorganization, while men in the same job and with less seniority than you keep their jobs; you have worked for your company for several years, receiving exemplary reviews and an employee-of-the-year award, yet each of the five times you have applied for promotions, the positions you applied for are instead filled by less qualified men.
- Pay: You worked your way up from the position of cook’s helper to chef. A male chef with similar training and work experience was recently hired, and you find out that he will be paid more than you; you are a top salesperson for your company, but are moved to a less desirable territory while a man with much lower sales is given your territory and client base, enabling him to make much more in commissions than you will make for several years.
- Job Classification: You work at a company for four years and put in many hours of overtime. After you return from having a baby, you tell your employer that you will not be able to put in as many hours of overtime. Your position is then changed to a lower level and you get less pay, while male coworkers in similar positions are allowed to cut back their overtime hours for personal reasons without any changes to their positions or pay.
- Benefits: Your company’s health insurance policy does not cover your spouse, because it is assumed that he will have his own benefits, while your male coworkers have their wives covered by the policy. Because your husband is between jobs, you have to pay increased health benefits on his behalf that your coworkers do not pay for their wives.
If any of these things have happened to you on the job, you may have suffered sex or gender discrimination. Sex or gender discrimination may be accompanied by other forms of illegal discrimination as well, such as age, race, or disability discrimination. Pregnancy discrimination and sexual harassment are also considered forms of sex discrimination under the law.
Sexual harassment is a form of sex discrimination and violates Title VII of the Civil Rights Act of 1964 when it occurs in the workplace. EEOC guidelines define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,
- Submission to or rejection of the conduct is used as a basis for employment decisions, or
- Conduct of a sexual nature has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
Unwelcome is the critical word; sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome. The first two examples of sexual harassment are sometimes referred to as “quid pro quo” harassment, or harassment resulting in a “tangible employment action”. In order for sexual harassment to be against the law, the company must employ 15 or more individuals, and the conduct must be sufficiently severe or pervasive so as to create an intimidating, hostile, or offensive work environment. This is called hostile environment harassment.
Racial discrimination occurs when an individual is treated differently based upon their actual or perceived race. Race discrimination also encompasses discrimination based upon skin color. Though race and color are related concepts, the two are not synonymous. Color generally refers to discrimination based upon one’s pigmentation, complexion, or skin shade or tone. Color discrimination occurs when someone is discriminated against based on the lightness, darkness, or other color characteristic. Color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity. Regulation that prevents race discrimination also prohibits discrimination based upon stereotypes, assumptions about abilities, traits or the performance of individuals of certain racial groups.
Race discrimination can also occur if an individual is treated differently based upon their association with members of another race. Such discrimination can occur directly, such as when an employer intentionally targets a member of a racial group or indirectly, for example when a seemingly neutral job policy tends to exclude minorities for a reason that is not job related.
If you have experienced any of the following situations, you may be a victim of race discrimination:
- Hiring/Firing/Promotions: You apply for a job for which you have experience and excellent qualifications, but you are not hired because some of the company’s long-time clients are not comfortable dealing with African-Americans. You are told that you are being laid off due to company cutbacks and reorganization, while white employees with the same job and with less seniority than you keep their jobs. You have worked for your company for several years, receiving exemplary reviews and an employee-of-the-year award, yet each of the five times you have applied for promotions, the positions you applied for are instead filled by less qualified people of a different race.
- Pay: You worked your way up from the position of executive assistant to project manager. A white project manager with similar training and work experience was recently hired, and you find out that he will be paid more than you. You are a top salesperson for your company, but are moved to a less desirable territory because it is a minority neighborhood, while another white employee with much lower sales is given your territory and client base, enabling him to make much more in commissions than you will make for several years.
- Job Classification: You work at a company that has an eight-tier job classification system; your responsibilities have increased over time, but your job classification and pay has remained stagnant; white colleagues have their job classification and pay adjusted to reflect their increased responsibilities.
- Harassment: One of your coworkers thinks it’s “funny” to use the “n word” in conversation and to tell jokes insulting blacks, Latinos, Asians, and other minorities; these comments make you very uncomfortable, and you’ve asked him to stop, but he tells you that you need to get a sense of humor; the boss tells you to ignore him, but doesn’t talk to or discipline your coworker for his harassing behavior.
The examples listed above are not an exhaustive list, but do illustrate the general elements of race discrimination.