Americans with Disabilities
- Violations
- Disability Qualifications
- Major Life Activity
- Qualified
- Essential Functions
- Reasonable Accommodations
- What the ADA does not protect
Family Medical Leave Act (FMLA)
- Eligibility
Harassment
- Sexual Harassment
- Hostile Work Environment
- Determining an Abusive Environment
- Liability
- Other Coverage
Employment Discrimination
- Discrimination in Employment
(race, color, national origin, legal alienage, sex pregnancy,religion, age, disability and union activity) - 42 U.S.C. section 1981
- The American with Disabilities Act (ADA)
- Title VII of the Federal Civil Rights Act of 1964
- The Age Discrimination in Employment (ADEA)
- The Immigration Reform and Control Act of 1986 (IRCA)
- The National Labor Relations Act (NLRA)
- Making a Claim
- Enforcement Actions
- Proof of Discrimination
- Legal Remedies
- Sex Discrimination
- National Origin Discrimination
- Alienage Discrimination
- Religious Discrimination
- Age Discrimination
- Disabilities Discrimination
- Retaliation Protection
Wrongful Termination
- Illegal Termination
- Personal Injury/Workers Compensation
Pensions and Benefits
- Pension Plans
- Welfare Benefit Plans
- Employee Benefit Plans
- Fiduciary
- ERISA Protection
Americans with Disabilities
The Americans with Disabilities Act of 1990 (ADA) provides that private employers who:
- Have at least 15 employees...
or - Are state and local governmental employers...
or - Are employment agencies...
or - Are unions...
...may not discriminate in employment against qualified individuals with disabilities. The ADA also protects individuals with disabilities from discrimination in public services and accommodations.
Violations
Employers intending to discriminate because of a disability violate the ADA. Even if they do not intend to discriminate, employers can violate the ADA by failing to reasonably accommodate the needs of an individual with a disability or by using policies that cause a disparate impact on disabled persons if the policy is not job related or necessary for business.
Disability Qualifications
Only a "qualified individual with a disability" is protected by the ADA. The definition of that term is quite complex. An "individual with a disability" is one who:
- Has a physical or mental impairment that substantially limits one
or more of the individual's major life activities
or - Has a record of such impairment
or - Is regarded as having such an impairment
Commonly recognized physical impairments that may interfere with the performance of life activities include blindness, deafness, muscular dystrophy, cerebral palsy, cardiac problems, etc. Any mental or psychological disorder generally recognized by medical authorities, such as schizophrenia or manic depression that interferes with an individual's performance of major life activities is a disability.
Mere physical conditions such as being pregnant, left-handed, or having crossed eyes are not disabilities.
Major Life Activity
The term "major life activity" means things like walking, sitting, standing, seeing, hearing, breathing, speaking, performing manual tasks, caring for one’s self, learning, and working. Inability to work at a single job may not count because it is not substantial enough a limitation on the ability to work.
For example, a maintenance engineer suffering fear of heights, acrophobia, was not an individual with a disability because he could find many maintenance engineering jobs, even though he could not do one particular job that involved climbing ladders to get to equipment mounted high above the floor of a workplace.
Qualified
A person with a disability must also be "qualified." Qualified means someone who "satisfies the requisite skill, experience, education, and other job-related requirements of [the job] and who, with or without reasonable accommodation, can perform the essential functions of [the job]".
Essential Functions
The term "essential functions" means "job tasks that are fundamental and not marginal". So if an individual with a disability can do the essence of the job despite having a disability, the employer cannot discriminate against the person because of the disability. The employer also discriminates illegally if it fails to reasonably accommodate an individual with a disability who cannot do the job as it stands but could do it with some changes that are reasonable and do not create an undue hardship for the employer.
Reasonable Accommodation
The term "reasonable accommodation" means doing things like making facilities accessible to persons with disabilities, restructuring non-essential parts of the job, altering work schedules, modifying equipment or machinery, providing someone to aid the disabled workers. But an accommodation is not reasonable if it imposes an "undue hardship" on the employer's business by requiring "significant difficulty or expense" or a fundamental alteration of the nature of the employer's business. A person is not qualified if he poses a direct threat to the health or safety of other individuals in the workplace. Thus, a person suffering tuberculosis is an individual with a disability, but may not be protected by the ADA if the risk of contagion to others creates a threat to the health of others.
Does Not Protect
The ADA does not protect people because of homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal drug use. An alcoholic is protected but not if their current use of alcohol interferes with performance of the job or poses a direct threat to property or to the safety of others.
Family Medical Leave Act (FMLA)
The federal Family and Medical Leave Act (FMLA) entitles an eligible employee to up to 12 weeks of unpaid leave of absence within any 12 month period for three reasons:
- The birth or adoption of a child with the leave taken within the first 12 months the child is with the family\
- A serious health condition of the employee that prevents them from performing their job
- The serious health condition of a spouse, child or parent requiring the employee's care
Both male and female employees are entitled to parenting leave.
Eligibility
Public employers are covered by FMLA, as are private employers with 50 or more employees within a 75-mile radius of the employee's workplace. To be eligible, the employee must have worked for 12 months for the employer, having worked at least 1250 hours within the 12 months before the leave.
Harassment
Sexual harassment on the job violates Title VII of Civil Rights Act of 1964 where the harassment is because of sex. Even if the harasser is the same sex as the victim, harassment violates Title VII as long as the harassment can be shown to be because of sex. There are two types of sex harassment.
- One is quid pro quo harassment where a boss conditions a job on the employee having sexual relations, "Sex or your job." There must be at least the threat of economic loss, even if the employee does not actually lose their job.
- The second type is based on a hostile work environment. This occurs when unwelcome conduct is so severe or pervasive that it unreasonably interferes with an individual's job performance, such that it creates a hostile, intimidating or offensive work environment because of sex. The victim need not suffer economic loss or even psychological injury but they must perceive the environment to be abusive and it must be abusive when judged by a reasonable person in the victim's circumstances.
Determining an Abusive Environment
In determining whether a reasonable person in the circumstances of the victim would find the environment abusive, the court will look to:
- The frequency of the harassment
- Its severity
- Whether it is physically threatening or humiliating
- Whether it interferes with the employee's work performance
Simple teasing, inter-sexual flirtation, or male-on-male horseplay, or stray sexual comments will not be enough. But one episode of rape is sufficient.
Liability
Employers are usually liable for quid pro quo harassment by their supervisors and for hostile work environment where supervisors play an active part in creating that environment. But, where the hostile environment is created by an employee's co-workers, the employer is usually only liable where the employer knew of, or should have known of the problem, but did nothing to put a prompt and effective stop to it.
Other Coverage
While most of the attention has been on harassment because of sex, Title VII also prohibits harassment because of race, religion, and national origin. Similarly, the Age Discrimination in Employment Act prohibits harassment because of age and the Americans with Disabilities Act harassment because of disability.
Employment Discrimination
Discrimination in Employment
Federal law prohibits employment discrimination because of race, color, national origin, legal alienage, sex, pregnancy, religion, age, disability and union activity. Most state laws protect workers on the same grounds as federal law. Some state and local laws also protect workers against discrimination for some added reasons such as marital status, sexual orientation or preference.
Employment Discrimination laws generally protect not only present employees, but also former employees and some people, like applicants for jobs, who never have been employees. Some state and federal anti-discrimination laws protect people from discrimination more generally than just employment such as:
- 42 U.S.C. section 1981, a federal law that was originally passed
after the Civil War, prohibits race discrimination in all contracts,
which not only includes employment but also all other types
of contracts as well.
- The Americans with Disabilities Act (ADA) prohibits
disability discrimination in public services and accommodations.
See Americans with Disabilities Act.
- Title VII of the federal
Civil Rights Act of 1964 prohibits employment discrimination
because of race, color, sex, religion or national origin. This
law applies to public employers and private employers with
at least 15 employees, employment agencies, apprenticeship
programs and unions. 42 U.S.C. section 1981 prohibits all race
discrimination in all contracts, even between individuals.
- The
Age Discrimination in Employment Act (ADEA) prohibits employment
discrimination because a worker is age 40 or older. The coverage
of the ADEA is similar to Title VII except that a private employer
needs 20 employees to be covered.
- The Immigration Reform and
Control Act of 1986 (IRCA) protects an alien who is "lawfully admitted for permanent residence" from
employment discrimination because she is an alien.
- The Americans
with Disabilities Act (ADA) prohibits employment discrimination
against employees with disabilities.
- The National Labor Relations Act (NLRA), which is enforced by the National Labor Relations Board rather than the courts, protects employees from discrimination by their employers because they have engaged in union activity.
Most states prohibit employment discrimination on the same basis as federal law. Several state laws and some local laws also protect against discrimination because of marital status, sexual orientation or preference.
Making a Claim
Anti-discrimination law is generally based on either federal statutes, state statutes, or the Constitution. See Civil Rights Law. In order to make a claim under most of these statutes, it is necessary to file a complaint or charge of discrimination with an administrative agency of the government. Thus, a person claiming employment discrimination that violates Title VII, the ADEA, or the ADA must file a complaint with the federal Equal Employment Opportunity Commission (EEOC) or a state anti-discrimination agency as soon as possible after the discrimination occurs.
The exact time limits to make a claim are complicated because they depend on whether the state in which the alleged discrimination occurred has an effective law prohibiting such discrimination. The time limit is either 180 days or 300 days from the time in which the discriminatory event occurred. A claim of discrimination because of union activity must be filed with the National Labor Relations Board within six months of the discharge because of union activity. While there are some exceptions, the failure to file a complaint in time will mean that the discrimination cannot be challenged.
Enforcement Actions
While the NLRB alone enforces charges of union discrimination and the EEOC can start court actions to enforce Title VII, the ADEA, and the ADA, most times the person claiming the discrimination must bring an action in court to enforce the law. Once a person receives a determination by the EEOC on their claim, they have only 90 days to start a court action to enforce it. Enforcement actions can be brought in either state or federal court.
Proof of Discrimination
Most discrimination cases require that the employee prove that the employer acted with the intent to discriminate.
- A statement by the boss such as, "I am refusing to promote
you because you are a woman", is one kind of evidence that the
employer discriminated intentionally because of sex.
- Other evidence, such as proof that the person who won the promotion was less qualified than you, can also be used as long as it is sufficient to persuade a jury that the employer acted with intent to discriminate.
Title VII and the ADEA provide narrow defenses to claims of intentional discrimination where the employer can prove that national origin, religion, sex, or age is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the employer's particular business. There is no BFOQ defense to claims of race, color, or disability discrimination.
Title VII also prohibits disparate impact discrimination. Disparate impact discrimination occurs when an employer has a policy that in operation works to the greater disadvantage to minority group members or women than to everyone else. Even if the employer does not intend to discriminate when it uses such a policy, the employer violates the law where the policy is not related to the job the employees are to perform and is not necessary to the employer's business.
For example, a policy requiring that employees be a certain height and weight. Such a policy excludes more women than men, more Latinos than others. So, the employer can only continue to use the policy if it can prove that the height and weight requirements are related to the jobs employees perform and are necessary to its business.
Legal Remedies
The remedies for discrimination include what the law calls equitable as well as legal remedies. Equitable remedies include:
- Lost back pay
- An order that the employee be reinstated
- An order to the employer to stop discriminating.
Since the Civil Rights Act of 1991, the federal statutes prohibiting discrimination now provide for a jury trial for claims of intentional discrimination and also provide legal remedies to compensate for the pain and suffering the victims of discrimination have suffered and punitive damages to punish particularly egregious discriminators. Compensatory and punitive damages are subject to caps depending on the size of the employer and cannot exceed $300,000. While the victims of age discrimination cannot get punitive damages, the ADEA does provide for double damages when the employer's action is found to be willful. See also Employment Discrimination.
Title VII of the Civil Rights Act of 1964 protects against discrimination in employment because of race and 42 U.S.C., section 1981 prohibits race discrimination in contracts, including employment contracts. While the term ‘‘race’’ is not defined, the law prohibits all race discrimination. Thus, a white, just as a member of a racial minority group, is protected against employment discrimination.
Sex Discrimination
Title VII prohibits sex-based employment discrimination against women and men. But Title VII does not prohibit discrimination because of sexual orientation or preference. The federal Pregnancy Discrimination Act (PDA) amended Title VII to make clear that discrimination on the basis of pregnancy, childbirth, and related medical conditions is sex discrimination.
National Origin Discrimination
National origin discrimination means discrimination based on the country in which a person was born or the country from which their forebears originally came. Thus, discrimination because someone's origins are from Cuba is discrimination because of national origin. Discrimination because someone speaks English with an accent is evidence of national origin discrimination. But, discrimination because someone is not an American citizen is not national origin discrimination.
Alienage Discrimination
Alienage discrimination against someone who is authorized to work in the United States violates the Immigration Reform and Control Act (IRCA). IRCA is enforced by the United States Department of Justice.
Religious Discrimination
Discrimination based on religion is prohibited by Title VII unless the employer is a church or other religious institution. ‘‘Religion’’ is quite broadly defined to include an employee's moral and ethical beliefs. In addition to prohibiting discrimination because of a person's religion, Title VII also requires employers to reasonably accommodate its employees' religious beliefs and practices unless that accommodation poses an undue hardship on the employer's business. Undue hardship, however, can be established rather easily if the employer can show it involves any real cost at all.
Age Discrimination
Age discrimination is prohibited by the federal Age Discrimination in Employment Act (ADEA) but only workers ages 40 and older are protected. Some state anti-discrimination laws protect workers of all ages from age discrimination. The Older Workers Benefit Protection Act (OWBPA) established standards to determine whether buy-out and other early retirement packages for workers that typically include a waiver giving up all claims of age discrimination violate ADEA.
Disabilities Discrimination
The Americans with Disabilities Act (ADA) prohibits employment discrimination against qualified individuals with disabilities. See Americans with Disabilities Act.
Retaliation Protection
Anti-discrimination laws, both state and federal, also generally prohibit retaliation. Thus, workers cannot be fired for filing discrimination charges against their employers. Nor can they be discriminated against for other, reasonable action taken in opposition to discrimination by their employers.
Wrongful Termination
When an employee is discharged, the first question is whether the employee is protected by a job security system, such as civil service, a collective bargaining agreement, academic tenure, or other promise of job security made by the employer. If the employee has job security, the employer must have good cause for discharge.
Illegal Termination
Even if the employee is at-will and does not have job security, workers are still protected from termination for illegal reasons. There are many federal and state laws that make reasons for adverse employment action illegal. Discrimination because of race, color, religion, national origin, sex, age, or disability are all examples of illegal reasons for discharge that can be challenged.
Personal Injury/Workers Compensation
Traditional tort actions sometimes are also available to challenge discharges. Thus, employees treated in a completely outrageous way by their employers may be able to bring workers’ compensation actions against the employer for the intentional infliction of mental distress.
One example is the restaurant owner who, sure that an employee had stolen money from the cash register, acted in an outrageous way by firing workers in alphabetic order until the wrongdoer confessed.
A personal injury action might be available would be an action for defamation where the employer told the world that an employee had been fired for possessing illegal drugs when in fact the employee had not been in possession of drugs.
Pension and Benefits
The law does not require employers to provide employees with pensions or other fringe benefits, such as health insurance, but federal law does give tax breaks to employers that do provide such benefits if the plans are "qualified" plans. The federal Employee Income Security Act (ERISA) regulates the pension and fringe benefit plans that employers provide their employees.
Pension Plans
Pension plans come in two basic forms.
Defined benefit plans provide retirement benefits where the employer promises to pay retirees a pension in a specific amount, with the monthly benefit set by a formula of years of service times final average salary times a percentage figure. The employer must contribute enough money to the plan on a regular basis so that there is enough money available to pay the pension benefits of all the retired employees as they come due. Another way of saying this is that the employer bears the risk if the funds it pays into the plan and the investment income earned on those funds are not sufficient to pay the pensions.
Defined contribution plans provide that the employer will contribute an amount into the plan on behalf of an employee with the employee typically required to also contribute, with each employee having her own individual account. The employee will have available at retirement the amount of money that is in her account at the time of retirement, "what you see in the account is what you get". This means that the employee bears the investment risk for her individual account.
ERISA establishes minimum standards for the coverage and participation of employees and the vesting of enforceable rights to a pension.
Welfare Benefit Plans
Welfare benefit plans are fringe benefit plans set up by employers for their employees to provide such benefits as health or life insurance, vacation benefits, sickness and accident insurance, daycare, scholarships and prepaid legal insurance. A promise by an employer to provide these benefits is not covered by ERISA unless a plan is actually established. Welfare benefit plans are covered by ERISA, but the law does not regulate the terms of the plans.
Employee Benefit Plans
Fiduciary
Employee benefit plans, whether pension plans or welfare benefit plans, that are covered by ERISA and that pool funds in the plan must have a fiduciary. A fiduciary is a person who manages the operation of the fund, including the investment of plan funds and the payment of plan benefits. ERISA requires that fiduciaries must act for the exclusive benefit of the participants and beneficiaries of the plan and not for the interest of the employer that set up the plan. Fiduciaries can be sued if they breach their fiduciary duties.
ERISA Protection
Participants are employees covered by employee benefit plans regulated by ERISA. Beneficiaries are typically family members of participants who are entitled to benefits under employee benefit plans.
Both participants and beneficiaries of employee benefit plans covered by ERISA can sue to recover benefits due under the plan or to clarify their rights under the plan.
ERISA also protects participants and beneficiaries against retaliation by the employer for claiming benefits under the plan and against discrimination to prevent them from obtaining benefits in the future. Thus, ERISA is violated if an employer fires an employee to prevent her pension benefits from vesting.
