A Brief Guide to Employment Discrimination: United States

The following is a general guide to what constitutes discrimination in the United States. Every case is different, and the law is always evolving. We aren’t seeking to give legal advice in this brief tour. If you think you may be experiencing discrimination, you should seek counsel from lawyers who can evaluate your own circumstances in detail.

Each state has its own laws governing employment discrimination, and they do vary. The following is a guide to the federal laws in this area, which prohibit employment discrimination based on membership of a number of “protected classes.” (They set the basic framework for state laws too.)

These protected classes include:

  • Sex
  • Race and color
  • Religion
  • National origin
  • Disability
  • Age (normally 40 or older)
  • Pregnancy

Workplace discrimination can take a number of different forms.

 

Disparate treatment

It is unlawful for you to be treated differently than other employees on the basis of race, color, religion, sex, national origin, disability or age. This provision covers a broad range of employment actions, including hiring and firing, transfer, promotion, recruitment, training, benefits and access to company facilities.

The negative employment action does not have to come solely from a discriminatory motive. As an employee, you need to show merely that discrimination was a “motivating factor” in the employment action. This means that, even if your employer claims there is a “legitimate” reason for the adverse action, if you suspect that discriminatory intent was partly responsible for your treatment, you may have a claim for discrimination.

You are a woman working as an analyst at a hedge fund. Your employer gives the best clients to his favorite male employees because he thinks they will be better at bonding with the firm’s (mostly male) clients. Your male colleagues therefore perform better, and are promoted ahead of you. You may have a claim for sex discrimination.

 

Disparate impact

Even when an employer is not motivated by discriminatory intent, federal law prohibits an employer from using a neutral employment practice that has an unjustified adverse impact on members of a protected class.

Your employer has a policy giving bonuses to employees who commit to work between the hours of 8pm and 11pm. Because women are more likely to be the primary carers of children this policy may constitute disparate impact discrimination.

 

Harassment

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy) or disability. Harassment becomes unlawful either when enduring the offensive conduct becomes a condition of continued employment, or when the conduct is severe or pervasive enough to create a “hostile work environment.”

This offensive conduct can include offensive jokes, epithets, comments and insults, offensive images or objects, threats, and physical assaults. The harasser can be the victim’s supervisor, another supervisor, a co-worker, an agent of the employer, or a non-employee. 

In cases of sexual harassment, unlawful behavior can include unwelcome sexual advances, requests for sexual favors and other verbal or physical harassment of a sexual nature. However, harassment does not have to be of a sexual nature. For example, it is illegal to harass a woman by making offensive comments about women in general.

Your employer is automatically liable for harassment by a supervisor that results in a negative employment action such as firing, failure to promote or loss of wages.

If the harassment results in a hostile work environment, the employer can avoid liability only if it can demonstrate that:

a. It reasonably and promptly tried to correct the harassing behavior.

b. The employee unreasonably failed to take advantage of any preventive or corrective opportunities available.

You are a woman working in an office, and one of your male colleagues repeatedly pesters you to sleep with him. You rebuff his advances and report his conduct to your supervisor and your HR representative, who tell you they will investigate his behavior. However, nothing changes – the colleague continues to harass you. Your employer’s failure to act means you may have a claim for sex discrimination.

If the harassment is conducted by a manager or supervisor, it may not be necessary for you to make an internal complaint to preserve a claim of discrimination.

 

Discrimination based on association

Denying employment opportunities because of an association with someone who holds a particular protected characteristic is illegal.

You take time off work to take care of your disabled child, and you are disciplined by your manager. Your manager does not discipline employees who take similar amounts of time off work for other reasons. You may have a claim of discrimination because of your association with someone with a protected characteristic.

 

Retaliation

It is illegal for your employer to retaliate against you for filing a charge of discrimination, participating in an investigation of discrimination or opposing discriminatory practices. Your claim of retaliation may succeed even if your claim of discrimination fails, as long as you can show that you reasonably believed that the employer was engaged in wrongful discrimination.

Your supervisor makes repeated sexual advances and inappropriate comments about your body and clothes, and you make a complaint to a human resources representative. A few weeks later, you start receive negative performance evaluations and are eventually fired. You may have a claim for retaliation.

 

What can you do if you are discriminated against?

EEOC complaint

If your employer discriminates against you, you can file a charge with the Equal Employment Opportunity Commission (EEOC). An individual, organization or agency can also file a charge on behalf of another person as a “John Doe” or “Jane Doe” in order to protect the aggrieved person’s identity. It is important to file the complaint as swiftly as possible: for most EEOC charges, there is either a 300-day or 180-day limit after the alleged violation.

The EEOC will then investigate the complaint, and if they establish that discrimination has occurred, they will attempt conciliation with the employer to develop a remedy for the discrimination.

If the attempt at conciliation is unsuccessful, the EEOC may choose whether to bring suit in federal court.

Most states and some cities have bodies similar to the EEOC which may provide alternative ways to bring a claim. Their statutes of limitation may be different to those imposed under federal law. 

Private lawsuit

If the EEOC chooses not to sue on your behalf, it will issue you a “right to sue” letter and you will be entitled to file your own suit within 90 days.

 

What remedies are available if you have been discriminated against?

The purpose of a remedy for discrimination is to make the individual “whole” again – that is, in the condition he or she would have been in but for the discrimination.

The relief available for employment discrimination can include the following:

  • Back pay (that is, pay from the time you were discriminated against up to the present)
  • Hiring
  • Promotion
  • Reinstatement
  • Front pay (that is, pay from now to some point in the future, often calculated to be when you could reasonably be expected to get another comparable job)

Remedies may also include payment of attorney’s fees, expert witness fees and court costs.

Under most federal employment laws, compensatory and punitive damages may also be available:

  • Compensatory damages: damages may be available to compensate for actual monetary loss, future monetary loss and for emotional distress.
  • Punitive damages: damages may be available if your employer acted with malice, intention or reckless indifference.

 

If you think you may have suffered discrimination at work, it is important that you seek prompt legal advice. For a confidential discussion of your legal options, contact us on +1 (518) 633-4775, or info@mcolaw.com.