Age Discrimination
Employers are prohibited from discriminating against employees based on the employees’ age. That encompasses both discriminatory treatment and discriminatory impact.
The point of these laws is to protect employees from the harm that comes from unfair and often inaccurate assumptions and stereotypes regarding aging individuals and their ability and willingness to work hard and contribute meaningfully to the success of an organization. Put another way, these laws are aimed at allowing a job candidate or employee to be judged on his or her individual abilities and performance, regardless of advancing age.
These legal protections generally apply to employees who are 40 years of age and older, and in general, they only apply to treatment or impact that harms older workers based on their age, but not to treatment or impact that affects younger workers base on their age. Hence, for instance, absent rare circumstances, it is unlawful to have a policy that a dental office will not hire hygienists past the age of 50 because of their age, but it is not unlawful to refuse to hire hygienists under the age of 25 because of their age.
Unlawful discriminatory treatment occurs when an employer expressly decides to treat a job candidate or employee who is 40 or more years of age less favorably than younger employees (by not hiring, by firing, by demoting, or by paying less) because of his or her age. Unlawful discriminatory impact occurs when the employer maintains a policy or practice that is neutral on its face (meaning, the practice or intent is not to treat older workers differently), but the inevitable impact of that otherwise neutral policy has a materially unfavorable impact on older workers who are protected by the age discrimination laws.
These laws pertain to any conduct of the employer that affects the employees, including decisions regarding hiring, firing, promotion, demotion, compensation, benefits, and even advertising for job openings. See also, discussion below about Harassment, which can be a form of unlawful age discrimination if it is based on the age of an individual who is 40 years or older.
Race, Color, or National Origin Discrimination
Employers are prohibited from discriminating against employees based on the employees’ race, color, or national origin. That encompasses both discriminatory treatment and discriminatory impact. Those four types of discrimination are actually distinct forms of unlawful discrimination under these laws, but they are treated together here due to their conceptual similarity and their tendency to run together or significantly overlap. For simplicity, however, we will refer to them collectively as “race discrimination.”
The point of these laws is to protect employees from the harm that comes from unfair and often inaccurate assumptions and stereotypes regarding an individual’s race, and their ability and willingness to work hard and contribute meaningfully to the success of an organization. Put another way, these laws are aimed at allowing a job candidate or employee to be judged on his or her individual abilities and performance, regardless of their race.
These legal protections apply to all employees, regardless of their race, and they apply to traditional notions of discrimination against historically disadvantaged groups (for instance, discrimination against Black people because of their race), as well as notions of “reverse discrimination” (such as discrimination against White people because of their color). Hence, for instance, absent rare circumstances, it is unlawful to have a policy that a dental office will not hire Black hygienists because of their race, or will not hire dentists from certain nations because of their national origin. Note, this does not alter an employer’s right (and obligation) to hire only individuals who are authorized to work in the United States.
Unlawful discriminatory treatment occurs when an employer expressly decides to treat a job candidate or employee of one race less favorably than candidates or employees in a different race (by not hiring, by firing, by demoting, or by paying less) because of his or her race. Unlawful discriminatory impact occurs when the employer maintains a policy or practice that is neutral on its face (meaning, the practice or intent is not to treat one group of workers differently), but the inevitable impact of that otherwise neutral policy has a materially unfavorable impact on workers of one race.
These laws pertain to any conduct of the employer that affects the employees, including decisions regarding hiring, firing, promotion, demotion, compensation, benefits, and even advertising for job openings.
See also, discussion below about Harassment, which can be a form of unlawful race discrimination if it is based on the race, color, or national origin of an employee.
Disability Discrimination
Employers are prohibited from discriminating against employees based on the employees’ disability. That encompasses both discriminatory treatment and discriminatory impact.
The point of these laws is to protect employees from the harm that comes from unfair and often inaccurate assumptions and stereotypes regarding disabled individuals and their ability and willingness to work hard and contribute meaningfully to the success of an organization despite their disabilities. Put another way, these laws are aimed at allowing a job candidate or employee to be judged on his or her individual abilities and performance, regardless of the employer’s initial perceptions or stereotypes about those abilities.
These legal protections generally apply to employees who have a physical or mental impairment that substantially affects one or more major life activities but who are otherwise qualified for the job in question, and in general, they apply only to treatment or impact that harms disabled workers based on their disability. Hence, for instance, absent rare circumstances, it is unlawful to have a policy that a dental office will not hire hygienists with visible physical disabilities or with a hearing or vision impairment that constitute a disability because of their disability.
Unlawful discriminatory treatment occurs when an employer expressly decides to treat a disabled job candidate or employee less favorably than other employees (by not hiring, by firing, by demoting, or by paying less) because of his or her disability. Unlawful discriminatory impact occurs when the employer maintains a policy or practice that is neutral on its face (meaning, the practice or intent is not to treat disabled workers differently), but the inevitable impact of that otherwise neutral policy has a materially unfavorable impact on disabled workers who are protected by the disability discrimination laws.
If an individual’s condition does not meet the definition of a disability under these laws, then that individual is not protected from discrimination based on that condition. However, that rule is modified by the concomitant rule that, even if an individual does not have a condition that meets the technical definition of a disability, he or she will be protected under these laws if the employer “perceives” that they have a disability or if they have a record of having such a disability and the employer acts based on that perception or record.
These laws pertain to any conduct of the employer that affects the employees, including decisions regarding hiring, firing, promotion, demotion, compensation, benefits, and even advertising for job openings.
See also, discussion below about Harassment, which can be a form of unlawful disability discrimination if it is based on the disability of an employee, as well as Disability Accommodation, which is a duty of employers with employees with disabilities. An employer’s failure to comply with this duty also can be deemed a form of disability discrimination. See also, discussion of Pregnancy Discrimination, which is closely related to disability discrimination laws in concept and in practice.
The Employment Law Desktop Reference is for general information only. It is not legal advice for specific situations or for decisions, plans, or management by any employer in any circumstances. The law firm of Eckert Seamans Cherin & Mellott, LLC is available for specific advice for PDA members at discounted hourly rates and with an initial one-hour consultation at no charge to the PDA member. Please contact Bridget E. Montgomery, Esquire by email at bmontgomery@eckertseamans.com or by telephone at 717-237-6054 to schedule an initial consultation.
Sex Discrimination
Employers are prohibited from discriminating against employees based on the employees’ sex, which generally includes sexual orientation and gender identity. That encompasses both discriminatory treatment and discriminatory impact.
The point of these laws is to protect employees from the harm that comes from unfair and often inaccurate assumptions and stereotypes regarding male or female individuals, or individuals of a particular sexual orientation or gender identity, and their ability and willingness to work hard and contribute meaningfully to the success of an organization. Put another way, these laws are aimed at allowing a job candidate or employee to be judged on his or her individual abilities and performance, regardless of their sex, sexual orientation, or gender identity.
These legal protections apply to all employees, regardless of their sex, sexual orientation, or gender identity, and they apply to traditional notions of discrimination against historically disadvantaged groups (for instance, discrimination against women because of their sex), as well as notions of “reverse discrimination” (such as discrimination against men because of their sex). Hence, for instance, absent unusual circumstances, it is unlawful to have a policy that a dental office will not hire male hygienists because of their sex, or will not hire female dentists because of their sex.
Unlawful discriminatory treatment occurs when an employer expressly decides to treat a job candidate or employee of one sex, sexual orientation, or gender identity less favorably than candidates or employees in a different category (by not hiring, by firing, by demoting, or by paying less) because of his or her sex, sexual orientation, or gender identity. Unlawful discriminatory impact occurs when the employer maintains a policy or practice that is neutral on its face (meaning, the practice or intent is not to treat one group of workers differently), but the inevitable impact of that otherwise neutral policy has a materially unfavorable impact on workers of one sex, sexual orientation, or gender identity.
These laws pertain to any conduct of the employer that affects the employees, including decisions regarding hiring, firing, promotion, demotion, compensation, benefits, and even advertising for job openings.
See also, discussion below about Harassment, which can be a form of unlawful sex discrimination if based on the sex, sexual orientation, or gender identity of an employee.
Religious Discrimination
Employers are prohibited from discriminating against employees based on the employees’ sincerely-held religious beliefs or practices. That encompasses both discriminatory treatment and discriminatory impact.
The point of these laws is to protect employees from the harm that comes from unfair and often inaccurate assumptions and stereotypes regarding religious individuals, or individuals of a particular religious group, and their ability and willingness to work hard and contribute meaningfully to the success of an organization despite their religion or religiosity. Put another way, these laws are aimed at allowing a job candidate or employee to be judged on his or her individual abilities and performance, regardless of the employer’s initial perceptions or stereotypes about those abilities.
These legal protections generally apply to employees who have religious beliefs or practices that conflict with employment practices or policies, and in general, they apply only to treatment or impact that harms such workers based on their religious beliefs or practices. Hence, for instance, absent unusual circumstances, it is unlawful to have a policy that a dental office will not hire Catholic hygienists because they are Catholic.
Unlawful discriminatory treatment occurs when an employer expressly decides to treat one job candidate or employee less favorably than others because of their religious beliefs or practices (by not hiring, by firing, by demoting, or by paying less) because of his or her religion. Unlawful discriminatory impact occurs when the employer maintains a policy or practice that is neutral on its face (meaning, the practice or intent is not to treat workers with different religious beliefs or practices differently), but the inevitable impact of that otherwise neutral policy has a materially unfavorable impact on one or another group based on their religious beliefs or practices.
These laws pertain to any conduct of the employer that affects the employees, including decisions regarding hiring, firing, promotion, demotion, compensation, benefits, and even advertising for job openings.
See also, discussion below about Harassment, which can be a form of unlawful religious discrimination if it is based on the sincerely held religious belief or practice of an employee, as well as Religious Accommodation, which is a duty of employers to accommodate the sincerely held religious beliefs of employees. An employer’s failure to comply with this duty also can be deemed a form of religious discrimination.
Pregnancy, Childbirth Discrimination and Accommodation
Employers are prohibited from discriminating against employees based on the employees’ pregnancy, childbirth, or related medical conditions. Employers are further obligated to provide reasonable accommodations for an employee’s pregnancy and the limitations imposed by the pregnancy on the employee’s ability to perform the functions of the job.
The point of these laws is to protect pregnant employees from the harm that comes from unfair and often inaccurate assumptions and stereotypes regarding such individuals and their ability or willingness to work hard and contribute meaningfully to the success of an organization despite their pregnancy or impending childbirth. Put another way, these laws are aimed at allowing a job candidate or employee to be judged on his or her individual abilities and performance, regardless of the employer’s initial perceptions or stereotypes about those abilities.
These legal protections generally apply to employees who are pregnant but who are otherwise qualified for the job in question. In general, they employ concepts and duties very similar to those employed by the disability discrimination laws, except that the protections afforded pregnant workers are slightly broader than those for disabled employees. Note that the two forms of protection can, and often do, overlap in that a pregnant worker may develop a condition that qualifies as a disability under the disability discrimination and accommodation laws.
See also, discussion of Disability Discrimination, which is closely related to pregnancy discrimination laws in concept and in practice, and the discussions below about Harassment, which can be a form of unlawful pregnancy discrimination if it is based on the pregnancy of an employee, as well as Disability Accommodation, which includes a discussion of the employer’s duty to reasonably accommodate pregnant employees. An employer’s failure to comply with this duty also can be deemed a form of disability discrimination.
Harassment (Sex, Race, Age, Disability, Religion)
The employment discrimination laws also generally protect employees from unfavorable conduct known as “harassment” pertaining to the protected characteristic of each law. This involves conduct that does not necessarily relate directly to terms and conditions of employment, such as compensation, but involves hostile conduct that is directed at an employee based on that employee’s protected characteristic (e.g., age, sex, race, disability) and that is severe or pervasive enough to make the employment situation intolerable for a reasonable person.
This can take the form of harsh jokes or pranks aimed at the protected characteristics, taunting or name-calling, social exclusion, or any of the myriad ways that people seem to be able to express their disapproval of the presence of a particular employee or group of employees in the workplace because of a protected characteristic. Unlawful harassment can take the form of hostile treatment by supervisors or managers of the employer, who basically are the employer for purposes of these laws (such that their unlawful conduct is “imputed” to the employer even when the employer is a corporation or other entity), as well as conduct by coworkers if the conduct is severe or pervasive enough that it becomes a “hostile environment” based on the protected characteristic.
Sexual harassment is a special category of unlawful harassment in that it involves “hostile environment” harassment based on an employee’s sex, but also what is known as “quid pro quo” sexual harassment in which a supervisor or manager demands sexual activity with the employee in exchange for some employment benefit, including being hired or remaining employed at all, or threatens unfavorable treatment if the employee refuses.
Disability Accommodation
The laws prohibiting disability discrimination also generally impose on employers the duty to provide reasonable accommodations for an employee’s qualifying disability. This is a highly technical area of the law that requires careful training of HR professionals or managers to handle properly. Employers must provide a “reasonable accommodation” (that is, one that will enable a disabled employee to perform the essential functions of the job, if such an accommodation is available) if providing that accommodation will not impose an “undue hardship” on the operations of the employer.
The key elements that must be parsed are whether an individual employee or job candidate is “otherwise qualified,” has a “disability” as that term is defined under the law, the disability prevents or impedes the employee from performing the “essential functions” of the job, a “reasonable accommodation” is available that will enable the employee to perform the essential functions of the job in spite of the disability, and the reasonable accommodation will not impose an “undue hardship” on the operations of the employer.
Each of those factors (plus a few additional subsidiary factors) constitutes a legal issue to be determined in the specific circumstances of each employee who requests an accommodation. There are also rules about whether the employer must take the initiative in offering an accommodation and when the employer may wait for the employee to make an affirmative request.
In the midst of all that, the employer has a distinct duty to engage in an “interactive process” with the employee (and the employee has a duty to cooperate in that) to assess each of the above factors to determine if the employee’s disability can be accommodated.
Religious Accommodation
The laws prohibiting religious discrimination also generally include the added duty to provide a reasonable accommodation for sincerely held religious beliefs and practices of employees that conflict with otherwise neutral policies and practices at the workplace. For instance, mandatory work on a Saturday or Sunday or other special day that is a sabbath or holy day on which the employee is prohibited by religious beliefs from performing work or is required to attend religious services.
This duty to accommodate is limited to “reasonable accommodations” that do not impose an “undue hardship” on the operations of the dental office. It includes a duty to engage in an “interactive process” with the employee to determine precisely what is needed by the employee and to explore all available options to determine if they are “reasonable” in that they would meet the employee’s need, and if they do not impose an “undue hardship” on the dental office.
This applies only to beliefs that are both “religious” and “sincerely held” by the employee—political, philosophical, or even medical or dental disagreements are not protected and do not require an accommodation by employers. All of those factors require a sometimes complex and delicate analysis to determine precisely what the employer is required to do in a given situation, and because it must be an individualized assessment, the particulars of what an employer must do may change from one situation to the next.
Religious sabbath days historically have given rise to the most common requests for religious accommodation, but in recent decades, religious garb has become more prominent as a basis for requests for religious accommodation. Moreover, the COVID-19 Pandemic brought a significant increase in requests for religious accommodation based on religious objections to COVID-19 vaccine mandates imposed by many employers.
Military Service and Veterans’ Rights
Employers are required to offer certain job protections for employees who are or become members of the Armed Forces of the United States when they are called upon to serve in that capacity. They also prohibit discrimination against such employees on the basis of their membership in the Armed Forces or the need for them to be away from work for periods of mandatory service.
Retaliation
The laws that prohibit discrimination based on protected characteristics also generally prohibit certain related forms of retaliation by employers against employees. Those forms of retaliation usually are considered a type of unlawful discrimination, but because of the distinct character of employer retaliation, it is usually treated separately in enforcement of the laws and in employer policies and practices aimed at prohibiting such conduct.
Perhaps the best way to understand unlawful retaliation, as opposed to conventional discrimination, is that discrimination usually is identified as less favorable treatment of an employee in the protected class as compared with treatment accorded to other employees outside that protected group. Unlawful retaliation, however, is viewed as unfavorable treatment of an employee because of protected conduct, without regard to how the employer treats other employees. Another way to distinguish them is that unlawful discrimination is treatment that is based on an employee’s protected characteristic, but unlawful retaliation is based on an employee’s protected activity (although that distinction can get blurred when dealing with religious discrimination).
Other laws also prohibit retaliation against employees who engage in activity that is protected by law. Outside the discrimination context, such protections arise under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Occupational Safety and Health Act (OSH Act), the National Labor Relations Act (NLRA), and just about any other law that imposes duties on employers that have corresponding rights accorded to employees. The point of those laws is to protect employees who exercise their rights under those statutes and to prevent interference by employers in the enforcement of those laws by the government agencies charged with their enforcement (for instance, by discouraging employees from reporting violations to those agencies or from cooperating with agency investigations for fear of retaliation by employers who are the target of such enforcement or investigation).
The Employment Law Desktop Reference is for general information only. It is not legal advice for specific situations or for decisions, plans, or management by any employer in any circumstances. The law firm of Eckert Seamans Cherin & Mellott, LLC is available for specific advice for PDA members at discounted hourly rates and with an initial one-hour consultation at no charge to the PDA member. Please contact Bridget E. Montgomery, Esquire by email at bmontgomery@eckertseamans.com or by telephone at 717-237-6054 to schedule an initial consultation.