Module 2: Other Laws Preventing Discrimination

            Just as the Fair Labor Standards Act is the foundational law regarding fairness in hours and wages, the Civil Rights Act of 1964, also known as Title VII, is the keystone of workplace anti-discrimination laws.  However, the protected classes under Title VII are not the only people in the workforce who experience systematic discrimination.  Let’s highlight some of the other major federal laws and national policies aimed at preventing workplace discrimination against other classes of people.

Age Discrimination in Employment Act of 1967

Age is not a factor in any protected class under the Civil Rights Act.  However, older workers are a group who have faced historical discrimination in the workplace.  The Age Discrimination in Employment Act of 1967 prohibits discrimination in the workplace on the basis of a worker’s age if the worker is 40 or older.  The ADEA applies to employers with 20 or more employees and, like many other anti-discrimination laws, is administered and enforced by the Equal Employment Opportunity Commission.[i]

Older workers are prone to workplace discrimination partly because employees who have been at a company longer typically make higher wages than newer hires.  The EEOC resolves over 25,000 claims of ADEA-prohibited age discrimination each year, recovering close to $100 million for affected workers.  Enforcement under the ADEA is largely analogous to the procedure for filing a complaint under Title VII.  Age discrimination claims can be based upon disparate treatment of workers over 40 or on otherwise neutral policies that have a disparate impact on older employees.  Employers can defend against ADEA discrimination claims by showing that the elderly worker was negatively impacted by an employment decision on a basis other than his age, or that age is a bona fide occupational qualification for the job.  Additionally, so long as the employer’s intent is not to discriminate based on age, companies may consider age as a factor in bona fide seniority systems, which are employer-funded benefit programs based on years of service.

 Although employers are not permitted to terminate or compel employees to retire early solely based on their ages, they may offer incentives encouraging workers to retire early.  Voluntary retirement incentive programs often include waivers of a worker’s right to sue for age discrimination, though any agreement to waive these rights must be consistent with the Older Workers Benefit Protection Act.  The OWBPA amended the ADEA to require employers to make a full disclosure of a worker’s rights to sue for age discrimination at least 21 days before any waiver of these rights is made.[ii]

Americans with Disabilities Act of 1990

The Americans with Disabilities Act (“ADA”) prohibits discrimination against workers with recognized disabilities and requires employers with 15 or more employees to make reasonable accommodations to ensure that a qualified disabled worker can perform the necessary functions of the job.  The rights and protections afforded to individuals with qualifying disabilities is discussed extensively in the next module.

Genetic Information Nondiscrimination Act of 2008

The Genetic Information Nondiscrimination Act (“GINA”) amended Title VII to prohibit employment decisions from being made based upon genetic information.  As technology advances, genetic testing can tell us more and more about our likelihood of experiencing certain health issues.  Employers seeking to cut healthcare costs may wish to exclude applicants or terminate employees based upon their likelihood of contracting a disease in the future.  As a result, GINA protects employee’s genetic information from disclosure and prohibits discrimination on the basis of genetic makeup or family history. 

The Rehabilitation Act

The Rehabilitation Act of 1973 bars employers under contract with the federal government from discriminating against qualified but disabled workers and requires affirmative action for these individuals in hiring and promotion.[iii]  Together, the Rehabilitation Act and other laws ban discrimination against qualified individuals with disabilities in nearly all organizations receiving federal financial assistance.  While private businesses generally retain a great deal of latitude in making business decisions, private organizations receiving public funds – either by donation or payment for work performed -- are often obligated to comply with additional workplace anti-discrimination polices that are not enforced against the general public.

Immigration Reform and Control Act

The federal Immigration Reform and Control Act of 1986 prohibits employment discrimination based upon citizenship status.[iv]  This is like Title VII’s prohibition on national origin discrimination, but the Immigration Reform and Control Act applies to all employers and not just those with 15 employees or more, as Title VII does.  Employers are obligated to collect citizenship information to ensure that the employee has a legal right to work in the United States, but may not use this information to make discriminatory employment decisions.

Vietnam Era Veterans’ Readjustment Assistance Act 

The Vietnam Era Veterans’ Readjustment Assistance Act prohibits discrimination against qualified Vietnam veterans and veterans who served on active duty during active military campaigns.  The programs are administered by the Department of Veterans Affairs, which also provides information and resources to workers who are veterans, their employers, and the public.  Workers who are veterans of the armed forced may wish to contact their local VA to find out what opportunities may be available to them.

In addition to its non-discrimination provisions, the Vietnam Era Veterans’ Readjustment Assistance Act requires affirmative action for qualified disabled veterans in some circumstances.  

Affirmative Action

Affirmative action programs are policies designed to increase employment equality by favoring historically disadvantaged groups. Affirmative action programs vary greatly from company to company and from industry to industry. An affirmative action policy might, for example, establish a preference for hiring minority-owned contractors but state no numerical quota or guidance in terms of how this preference is to be implemented. On the opposite side of the spectrum, some affirmative action programs may reserve a percentage of the company’s business or workforce for members of identified groups.

Many public-sector employers are required to engage in affirmative action, but there is no federal law requiring other private employers to engage in affirmative action hiring or advancement practices unless they are working under a government contract or receiving federal funds. In other words, companies not receiving federal funds may choose to enact affirmative action programs, but are not required by law to do so.

Employers subject to affirmative action requirements must ensure that they are taking measures to recruit from the proper applicant pool, collecting and maintaining the proper records and advertising open positions in a manner that is consistent with the guiding policies.[v]  Employers with affirmative action policies should include training, outreach, and implementation plans that are kept on file and updated annually.

The legality of affirmative action programs is not without controversy. After all, federal and state governments may be prohibited from treating different classes of people differently by the “equal protection” clause of the 14^th amendment. Private employers are also bound by the Civil Rights Act, which prohibits discrimination based on race, gender and other criteria. While affirmative action programs may be nobly motivated and may not be the sort of thing that the equal protection clause and Civil Rights Act were designed to prevent, it certainly remains unclear the extent to which minority or disadvantaged applicants may be favored over other applicants without running afoul of antidiscrimination rules.

The law treats private company affirmative action programs and government affirmative action programs very differently.

In United Steelworkers of America v. Weber,[vi] the Supreme Court endorsed the rights of private companies to engage in voluntary affirmative action programs. The Court cited Congress’ intent in enacting Title VII to remedy discrimination against minority workers. Given that intent, the Court rules that the statute’s ban on discrimination “cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmative action efforts to hasten the elimination of such vestiges.”

The Court ruled that Title VII allows voluntary, race-conscious affirmative action plans when:

(1)   preferences are intended to “eliminate conspicuous racial imbalances in traditionally segregated job categories”;

(2)   the rights of nonminority employees are “not unnecessarily trammeled”—meaning the plan neither requires the termination of such employees and their replacement with minority employees, nor creates an absolute bar to advancement; and

(3)   preferences are temporary in their duration.[vii]

Affirmative action policies may be implemented by private-sector employers to achieve a diverse workplace, improve public image or to improve the company’s chances of landing a government contract. Creating preferences for minority applicants for these reasons is consistent with the purpose behind the Civil Rights Act and is therefore generally allowed.

Affirmative action by government agencies is more complex, as government is subject not only to the Civil Rights Act, but also to the equal protection clause of the 14^th amendment.  

A string of Supreme Court cases, including City of Richmond v. J.A. Croson Co. (which applied to contracts awarded by state agencies) and Adarand Constructors, Inc. v. Peña (which applied to those awarded by the federal government)[viii], have held that employment decisions made on the basis of race pursuant to affirmative action programs must satisfy “strict scrutiny,” which means that to be upheld against equal protection clause challenges, they must be narrowly tailored to achieve compelling government interests. While achieving diversity in the workforce and remedying past discrimination may reasonably be considered compelling government interests, the programs also must be narrowly tailored. Historically, this has meant that temporary programs in areas that once suffered from rife employment discrimination that give preferences to minority applicants have been upheld, but program that have set aside quotas that require certain percentages of government employment to go to members of identified classes have not been allowed.

A parallel controversy has been raging in the courts over the constitutionality of state schools giving preferences to minority student applicants with equal or even inferior credentials. While this is slightly more tangential to our discussion, multiple Supreme Court cases have set forth rules similar to the rules regarding employment. Quotas or “set-asides” that require X number of seats to be held for minority applicants in state schools have been found to be unconstitutional, while more mild preference programs have been upheld.

In addition to the federal Civil Rights Act and equal protection clause, states have sometimes also prevented public or even private employers and schools from engaging in affirmative action. At least eight states have banned affirmative action in admission to state colleges, claiming that affirmative action unfairly discriminates against non-disadvantaged groups based on their race, gender, or religious or other preferences.[ix] in 2014, for example, California voters passed Proposition 209 by referendum, which barred the consideration of race in public university admissions.

Workers who are members of a protected class should be aware of the affirmative action policies of employers in their area.

Retaliation

The law recognizes that allowing an employer to punish an employee for reporting workplace safety and employee rights violations would be contrary to public policy, as workers would be much less likely to report employer wrongdoing.  Under many federal and state laws, employers are expressly prohibited from taking adverse action against an employee based on protected activities.   A “protected activity” is the exercise of any legal right that an employee may have, such as by demanding an employer pay overtime for all hours worked over 40 in a workweek.  Several major workers’ rights statutes, including the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Civil Rights Act, the Operational Health and Safety Act, and the Americans with Disabilities Act, include anti-retaliation provisions, so employees cannot be terminated, reassigned, or otherwise experience negative consequences as a punishment from their employer for raising claims under these laws.[x] 

There are two major types of retaliation claims: opposition and participation.  An opposition claim arises when an employee is targeted by his boss because he challenged his employer’s conduct as discriminatory or otherwise illegal. A participation claim involves adverse action taken by an employer against an employee for participating in a workplace investigation or lawsuit, even though the employee did not initiate the action.   Employees engaging in these activities are protected against retaliation so long as they follow the proper legal procedures.  Employees who act unreasonably, such as by engaging in vandalism or physical violence, are not protected from retaliation from their employers based on unacceptable workplace conduct.[xi]

Notably, employees are not shielded from non-retaliatory or non-discriminatory adverse actions by their employers simply by nature of being a protected class or participating in claims made under these statutes.  The law’s general deference for freedom of contract in private business allows employers to make business decisions freely unless these decisions are patently discriminatory or otherwise improper.  So, employers may terminate, demote, reassign, or take any other adverse action against an employee currently or previously involved in a legal action enforcing his or her rights in the workplace so long as this decision is based on a legitimate business interest.  The anti-retaliation laws apply specifically to employer actions intended to punish employees for taking legal action or to discourage employees from enforcing their rights against employers in the future.[xii]

Conclusion

Discriminating against protected groups of workers has been illegal in the United States for decades, but employees still face issues related to workplace discrimination.  There are several laws that require employers to provide equal employment opportunities to workers that are at risk of workplace discrimination.  In fact, the Department of Labor is responsible for the administration and enforcement of more than 180 employment-related federal laws that regulate workplace activities for about 10 million employers and 125 million employees.[xiii] Despite these protections, many forms of discrimination are difficult to detect, such as when historically disadvantaged groups face a “glass ceiling” in their efforts to rise to higher positions within a company’s leadership.   Because employment equality continues to be a major issue despite widespread adoption of anti-discrimination laws, workers should be aware of their rights and not be deterred from acting if they are affected by discrimination in the workplace.