Employment Discrimination in the Hiring Process
Every growing company – or even those companies that are shrinking – need to be aware of anti-discrimination laws around hiring and firing employees, because some are likely to be protected by law.
The Civil Rights Act outlines Title VII so-called “protected classes” of individuals that are likely to be discriminated against. A company or organization should pay careful attention to hiring or firing anyone who falls in these categories because failing to prove just cause is fraught with issues. The Title VII categories include:
race and color, or those of minority races;
gender, or pregnancy status;
national origin or ethnicity;
religious, ethical, or moral grounds;
military status; or
retaliation against those reporting discriminatory practices.
While gender is a protected class, the U.S. Supreme Court, which “tests” laws against actual cases, is set to hear an important case in 2019 that may decide if sexual orientation or gender identity is protected from discrimination. Employment discrimination is not prohibited on the basis of gender orientation or sexual identity, even after gay marriage was determined to be a Constitutional right.
As with many Supreme Court cases, this one is a compilation of lower court decisions that will be reviewed by the nation’s highest court. One of the employment situations the justices will examine is of Anthony Stephens, a funeral director, who was fired after transforming into Aimee Stephens and began dressing as a woman instead of a man. She was subsequently fired and took her case to the Equal Employment Opportunity Commission (EEOC) which found in her favor.
ces professionals are encouraged to understand the laws thoroughly and to document issues to create evidence if a person of a protected class needs to be fired. Additionally, federal laws of this sort apply to citizens working abroad for American companies. Along with the ever-changing environment of the workplace there will always be sticky issues to navigate, such as making accommodations for prayer during the day or clothing worn for religious reasons. Legal and financial repercussions for violating these laws can be severe.
The watchdog agency
The Equal Employment Opportunity Commission is a government agency charged with upholding employment law, including anti-discrimination clauses. These laws apply to companies with more than 15 employees, or 20 in the case of age discrimination situations. It attempts to settle with employers but may file a lawsuit on behalf of the aggrieved individual as well. The agency averaged more than 225 lawsuits a year from 2000 to 2010 but the figures dropped to fewer than 100 from 2011 until recently.
Disability is another situation where discrimination can be practiced in the workplace. If a person is or becomes physically or mentally disabled or develops a disabling medical condition, the Americans With Disabilities Act requires an employer to make reasonable accommodations so the individual may continue doing his job. It also prohibits against discriminatory hiring, such as bypassing a candidate with a disability to hire someone less qualified but not disabled. The agency also pursues state governments and government agencies to ensure they are in compliance with the law, such as requiring Riverside County, California, to pay a settlement to a person who applied to be a probation officer but was not hired specifically due to a medical condition, epilepsy. It also sued the state of Rhode Island for sheltering disabled individuals in segregated workshops and programs rather than providing accommodations for them to integrate successfully into mainstream jobs.
Harassment is a new aspect of anti-discrimination law that the EEOC is tackling. While sexual harassment is in the news, the practice in general includes any continued, sustained practice of annoyance, intimidation, mockery, slurs, images, or hostile acts or language that a reasonable person would find difficult or injurious to his work performance. Employers may be able to avoid legal measures if they can prove they’ve made efforts to squelch the harassment or if the employee (victim) did not take advantage of opportunities to end the practice. The EEOC recommends that employers educate workers about the issue and establish a clear process for complaints and grievances.
Proving employment discrimination
Many states have created their own anti-discrimination laws to bridge gaps that federal law doesn’t explicitly address, such as discrimination against GLBTQ individuals for sexual orientation. Yet it can be particularly challenging to prove employment discrimination unless there is some “smoking gun” such as a clear statement made (in writing) by one of the hiring managers. New arrangements such as freelancing make litigating the issue a high hurdle too, as several states have rejected claims by nonresidents seeking damages against employers based on the employer’s physical address.
Ways to prove employment discrimination:
Save any letters, text messages, voice messages, or other communication that relate to your case;
Get coworkers who have witnessed the behavior or limitations to agree to support your case;
Talk to a qualified employment law attorney;
Keep a copy of your employment contract as well as any employee handbook and your termination letter;
contact the Fair Employment Practices Agency in your state or the EEOC before your deadline: some employees only have 45 days to file a complaint.
Lilly Leadbetter was a supervisor at an Alabama Goodyear tire and rubber plant for a career that lasted several decades. Near the end of her employment she discovered that she’s been paid less than equally qualified men doing the same job, a violation of Title VII. She sued, but was denied because the U.S. Supreme Court decided in a 5-4 majority, she’d waited too long to file her complaint (notwithstanding the fact that she did not know about the wage disparity). In 2009 President Barack Obama signed the Lilly Ledbetter Fair Pay Act that extends the complaint period with every paycheck the employee receives while performing the job that discriminates against him or her. The Act was derided by political opponents of Obama who said the implications for businesses were potentially unfair and too severe.