Protect Yourself and Your Business from Costly Litigation by Preventing Employment Discrimination
March 24, 2023
Employment discrimination occurs when an employer treats an employee or prospective employee differently than others within the organization based on specific characteristics that are protected by law. These characteristics include race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (40 or older), or genetic information. An employer's discrimination against a worker or job applicant can result in unlawful actions that include the failure to hire, changing the terms and conditions of the worker's employment, termination of employment, or failure to promote. Discrimination by an employer can be either intentional or unintentional, but the result is consistent. Employment discrimination is illegal.
The EEOC Protects Employees from Employment Discrimination
The EEOC protects employees and job applicants from employment and workplace discrimination due to race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information. The laws enforced by EEOC protect employees and job applicants when discrimination involves:
The unfair treatment based protected characteristics.
Harassment by supervisors, managers, co-workers, or other individuals in the workplace based protected characteristics.
An employer's denial of a reasonable workplace accommodation due to the person’s religious beliefs or disability.
An employer's improper questions about or the disclosure of an employee’s or job applicant’s genetic or medical information.
An employer's retaliation following a complaint filed by the employee or job applicant regarding an act of discrimination.
Discrimination is Unlawful in Every Aspect of Employment.
The laws enforced by the EEOC prohibit discrimination in every aspect of employment, from advertising open positions within the organization to background checks, recruitment, and termination. Some of the many workplace activities enforced by the EEOC include:
· Advertising for Open Positions
It is illegal for an employer to publish an advertisement for employment that indicates a preference for certain applicants or discourages someone from applying for a job due to their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy, national origin, age, disability, or genetic information. For example, a help-wanted ad may violate the laws enforced by the EEOC if the ad states the company is seeking male workers to apply for construction jobs. An ad of this kind could be found discriminatory if it discourages qualified women from applying.
Recruiting for New Employees
It is unlawful for an employer to recruit new workers in a way that discriminates against them due to their race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or genetic information. To build on our example above, an employer's reliance on members of its male construction crew for helping to recruit workers may violate the law if evidence shows that the company is only hiring men.
Interviewing Job Applicants
It is also illegal to discriminate against job applicants. Employers cannot base their hiring decisions on certain stereotypes or assumptions about a job seeker's race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or genetic information. If an employer requires job applicants to take an employment or aptitude test, the test must be necessary and related to the available position. The employer may not exclude applicants based on certain protected qualities or characteristics. If a job applicant with a disability needs an accommodation to apply for a job, the employer is also required to provide the accommodation so long as it does not cause the employer undue hardship, significant difficulty, or expense.
Considering Job Referrals
The law forbids an employer, employment agency, or union to consider a person's race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or genetic information when making decisions about job referrals.
Making Decisions About Job Assignments & Promotions
It is against the law for an employer to make decisions about job assignments and promotions based on an employee's race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or genetic information. For example, an employer may not provide preferential treatment to younger workers when making shift assignments and may not segregate workers of a particular gender from other employees or customers.
Providing Pay and Benefits
It is illegal for an employer to discriminate against an employee based on race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or genetic information when paying wages or employee benefits. Employee benefits include sick and vacation leave, insurance, access to overtime and overtime pay, and retirement programs. For example, an employer may not pay employees of one ethnic group less than employees of another ethnic group because of their national origin. The Equal Pay Act also requires that men and women in the same workplace be compensated with equal pay for equal work. The content of the job determines whether jobs are substantially equal. The Equal Pay Act covers all forms of payment, including salary, bonuses, benefits, overtime pay, stock options, vacation, and holiday pay.
Considering Discipline & Discharge
An employer may not consider a person's race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or genetic information when deciding on the worker's discipline or discharge. For example, if two employees commit a similar offense in the workplace, an employer may not discipline them differently based on their protected characteristics.
Giving Employment References
It is unlawful for an employer to give a negative or false employment reference or refuse a reference due to an individual's race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or genetic information.
Providing Reasonable Accommodations for a Disability
The law requires that an employer provide reasonable accommodations to employees or job applicants with a disability unless the accommodation would cause significant difficulty or expense to the employer. A reasonable accommodation is any change in the workplace that would assist a person with a disability in applying for a job, performing their duties, or enjoying the benefits and privileges associated with their employment. For example, a reasonable accommodation could include providing a ramp for a disabled worker or applicant who requires wheelchair access or an interpreter for an employee or applicant who is hearing impaired.
Providing Reasonable Accommodation for Religious Beliefs
The law requires employers to reasonably accommodate an employee's religious practices, faith, and beliefs unless doing so would cause undue hardship or difficulty, or expense for the employer. This kind of accommodation, for example, could require the employer to allow the employee to work within a flexible schedule to attend the religious services.
Training & Apprenticeship Programs
It is illegal for an organization's training or apprenticeship program to discriminate against employees based on race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or genetic information. For example, it is against the law for an employer to deny training opportunities to Asian employees because of their race. In some situations, an employer may set age limits for participation in an apprenticeship program.
Harassment in the workplace can manifest as offensive remarks, derogatory comments, or racial slurs. It is illegal to harass an employee for reasons that include race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or genetic information. It is also against the law to harass an individual because they have complained about an act of discrimination, filed a charge of discrimination, or are involved in an employment discrimination investigation or lawsuit. Sexual harassment is also illegal when it is so severe or frequent that it creates a hostile or offensive work environment or results in an adverse decision regarding the victim's employment, such as being demoted or terminated.
Establishing Consistent Terms and Conditions of Employment
It is unlawful for employers to discriminate against employees in processes regarding hiring, firing, promotions, or compensation. It also means employers may not discriminate against employees regarding break times, approving time off, assigning workstations, or setting any other term or condition of employment, no matter inconsequential.
Obtaining Pre-Employment Information
Generally, the information requested and obtained during the pre-employment process should be limited to what is essential for determining the applicant’s qualifications for the position. Information regarding an individual's race, color, religion, sex, gender identity, sexual orientation, pregnancy, national origin, age, disability, or genetic information is irrelevant when making such determinations. Similarly, employers should not ask job applicants who cannot interview in person for their photograph. If a photo is needed for identification purposes, this kind of documentation may be obtained from the employee after the individual has accepted an offer of employment.
Establishing a Dress Code
Generally, employers are within their rights to establish an organizational dress code that applies to all employees or employees within specific job categories. But employers who establish dress codes also must ensure they are not discriminating against their employees based on protected characteristics, such as disability, national origin, race or religion. According to the Equal Employment Opportunity Commission (EEOC), companies can establish a dress code that applies to all employees. However, while the dress code should be consistently applied to all workers, the employer may be asked to grant some exceptions. For example, an employer may make a reasonable accommodation for an employee with a disability because their refusal to allow such a modification could lead to a discrimination claim.
EEOC laws regarding discriminatory practices also include constructive discharge or forcing an employee to resign by creating a workplace so intolerable that any reasonable individual could not tolerate the environment or effectively perform their duties within the organization.
Remedies For Employment Discrimination
When an employee or job applicant has become a victim of discrimination, the objective of the law is to provide relief. The types of relief afforded by the law depend upon the details of the discriminatory action and its effect on the victim. For example, if the individual was not selected for a new position due to discrimination by the employer, the remedy could include their placement in the job and/or the back pay and benefits they would have received. The employer would also be required to cease any discriminatory practices and take all steps necessary to prevent discrimination in the future. Depending on the details of the matter, the worker who was subjected to discrimination could recover attorney's fees, fees for expert witnesses, and court costs.
Remedies May Include Compensatory & Punitive Damages
Compensatory and punitive damages may also be awarded in cases involving an employer's intentional discrimination based on an individual’s race, color, national origin, sex (including pregnancy, gender identity, and sexual orientation), religion, disability, or genetic information. Compensatory damages pay victims for out-of-pocket expenses caused by the discrimination and compensate them for any emotional harm suffered. Punitive damages may be awarded to punish employers who have committed acts of discrimination that were deemed especially malicious.
Limits On Compensatory & Punitive Damages
"There are limits on the amounts of compensatory and punitive damages a worker can recover. These limits vary depending on the size of the employer:
For employers with 15-100 employees, the limit is $50,000.
For employers with 101-200 employees, the limit is $100,000.
For employers with 201-500 employees, the limit is $200,000.
For employers with more than 500 employees, the limit is $300,000." 1
Age or Sex Discrimination and Liquidated Damages
While victims do not have the right to recover compensatory or punitive damage in cases involving intentional discrimination based on age or in cases involving intentional sex-based wage discrimination under the Equal Pay Act, they may be entitled to "liquidated damages." The award for liquidated damages equals the amount of back pay awarded to the victim. Liquidated damages are sometimes awarded to the victim to punish an employer for an especially malicious or reckless act of discrimination.
How Employers Can Stop Employment Discrimination
Employers can protect themselves from litigation by addressing discrimination in the workplace and establishing preventative measures:
· Develop written policies that clearly define the company's anti-discrimination rules.
· Educate all members of the organization about employment discrimination.
· Provide ongoing training about employment discrimination: How to identify it and how to prevent it.
· Consider various options for communicating your organizations anti-discrimination policies: Address your anti-discrimination policy in staff meetings, include the policy in the company handbook, provide annual training sessions, engage in team building exercises, and implement focus groups within the organization.
Employment discrimination is illegal. The laws enforced by the EEOC protect employees and job seekers from employment discrimination that stems from decisions made based race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information. When individuals or groups of individuals are the victims of employment discrimination, the objective of the law is to provide relief. It is possible for victims to recover compensatory, punitive, or liquidated damages when they have been subject to an employer's intentional or unintentional acts of discrimination. Employers have an obligation to their employees to identify and prevent employment discrimination. If you are an employer and you need assistance complying with EEOC laws, contact the Lynch Law Firm for help now.
If You Have Questions About Employment Discrimination
If you are an employer and you have questions or need assistance updating your policies and practices, or you need help finding creative solutions for complying with EEOC laws, please contact the attorneys at the Lynch Law Firm. Please email us at email@example.com or call 512 298 2346.
About Natalie Lynch: Founding Attorney
Natalie R. Lynch, a business and employment law attorney in Austin, Texas, has demonstrated expertise in workplace investigations, employment law, and entity formations. Credentialed through the Association of Workplace Investigators (AWI), Natalie is the only consulting and credentialed expert in Central Texas who conducts investigations into allegations of harassment, discrimination, and hostile work environment. As a credentialed dispute resolution mediator, she routinely collaborates with general counsel, internal and external counsel, employment litigators, employment generalists, and senior human resources professionals. With her extensive business background and solution-focused, purposeful, no-nonsense approach, Natalie excels at:
· Business formation
· Transactional matters
· Employment law
· Employment discrimination matters.
· Employment litigation avoidance
· Harassment Prevention Training Modules
Schedule a Free Consultation with the Lynch Law Firm Now
If you are an employer seeking to resolve a labor and employment issue, protect yourself, your employees, and your business by contacting us at the Lynch Law Firm. Our lawyers can help you navigate the complexities of your legal matter from inception to resolution. Our attorneys can also assist you in developing:
· Employment contracts
· Employee handbooks
· Performance evaluation materials
· Drafting legal agreements
· Workplace Investigations
· Harassment Prevention Training Modules
If you have questions, contact us for help now. Please email us or call 512 298 2346.