Employment Discrimination

Definitions
Employee – a person hired to do work
Employer – a person or entity that hires someone else
Stereotype – an assumption about a person based on her physical or other characteristics

What is employment discrimination?
“It is illegal for an employer to discriminate against an employee because of the employee’s [protected class or status].”

Protected class or status (1)
Race
physical characteristics, actual or perceived
E.g. white, black, Hispanic, Asian
Sex
gender (man, woman)
pregnancy
sexual orientation
gender identity
Religion
includes “non-traditional” and non-organized religions
sincerely held political, moral, ethical beliefs
practices
National origin
a particular country or part of the world
ethnicity or accent
citizenship/immigration status

Protected class or status (2)
Disability
physical or mental lasting longer than six months
history of disability
Age
“old age” 40 and older
Other considerations:
employee can appear to be a member of a protected class
employee and employer can belong to the same protected class

Adverse employment action (1)
Hiring, esp. pre-employment inquiries
Economic status
Arrest and conviction record
Security and background checks
Terms & conditions of employment
Pay and benefits
Assignments
Promotions and discipline
Firing: termination or discharge
Constructive discharge: employer creates a work environment so hostile that the employee quits

Adverse employment action (2)
Harassment
Slurs, offensive or derogatory comments, physical conduct
Sexual harassment: advances, requests for sexual favors
Must be severe or pervasive enough to create a hostile work environment
Failure to accommodate
Religious: flex schedule, dress and grooming policies
Disability: wheelchair ramps, readers and interpreters
Retaliation
Employer takes an adverse employment action because employee filed a discrimination claim

The Equal Employment Opportunity Commission (EEOC)
The administrative agency that implements federal anti-discrimination laws in the workplace (http://eeoc.gov/laws/index.cfm)
Issues regulations that interpret federal statutes
Issues policy guidance and best practices
Investigates employee discrimination claims

How to pursue a claim (1)
File a Charge of Discrimination with the EEOC within180 days
Allege that her employer took an adverse employment action based on the employee’s protected status; and,
State facts to support her allegations

How to pursue a claim (2)
The EEOC investigates the complaint, then reaches a finding:
No discrimination: case closed
Discrimination:
EEOC grants the employee a Right to Sue Letter, within 90 days employee must file case in federal court; or,
EEOC litigates the case for the employee

How to pursue a claim (3)
Courts use the McDonnell-Douglas framework
The employee states her claim (prima facie case)
She is a member of a protected class
She was qualified or performing at expectations
She suffered an adverse employment action
Different treatment for similarly situated persons
The employer gives a non-discriminatory reason for the adverse employment action
The employee shows that the non-discriminatory reason is a pretext