Hello, and welcome to Legal Lad’s Quick and Dirty Tips for a More Lawful Life.

But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.   

This episode is the first of a series that focuses on employment discrimination. Listeners from around the world have asked questions about what classes of people are protected against discrimination in the workplace, what laws protect them, why some states can offer more protection than the federal government, what exactly a “hostile work environment” is, and more. Today I will discuss the basics: what federal laws protect employees and what classes of employees they protect. Please note that this podcast only covers the basics of this highly complex area of law, and there are many exceptions and quirks to the information covered here. 

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The broadest federal law that protects employees is Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin. One important amendment to Title VII was the Pregnancy Discrimination Act of 1978, which prohibits sex discrimination on the basis of pregnancy and childbirth, and related medical conditions.

In addition, the Equal Pay Act of 1963 protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. That is, if a man and a woman are performing basically the same job, each must be paid the same wage. 

The Age Discrimination in Employment Act of 1967 (ADEA), protects individuals who are 40 years of age or older. 

The Americans with Disabilities Act of 1990 (ADA), prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.

The Immigration Reform and Control Act of 1986 (IRCA) prohibits employers from discriminating against applicants or employees on the basis of their citizenship or national origin.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the jobs and employer-provided benefits of service members returning to the civilian workforce. USERRA also has provisions that prohibit job discrimination against veterans on the basis of their military service.

One common question that I have received from listeners is what practices exactly are prohibited? These federal statutes protect against a broad range of practices, including hiring and firing, compensation, assignment, classification of employees, transfer, promotion, layoff or recall, job advertisements, recruitment, testing, use of company facilities, training, apprenticeship programs, fringe benefits, retirement plans, and disability leave, and “other terms and conditions of employment.” So, the federal laws protect against blatant forms of discrimination, such as requiring that an applicant be a white Christian male under 35 years of age. And, these laws protect against more subtle forms of discrimination, such as allowing a women’s health discussion group to use a conference room at work, but prohibiting a men’s health study group. 

Not all employers are subject to all these laws. State, local and federal governments and their agencies all must generally follow these laws. There are, of course, exceptions. For example, state governments are not required to abide by the ADEA in all circumstances. Small private employers might not have to abide by these laws. Title VII and the ADA only apply to employers with 15 or more employees, the ADEA requires 20 employees, and the IRCA requires only four employees. Employers who are not subject to a discrimination statute are not required to abide by the statute. 

These federal laws provide minimum standards for the country. But, states and local governments can enact more strict standards, or protect additional classes of employees. One common example is discrimination on the basis of sexual orientation. On the federal level, the House of Representatives passed HR 2015 in September 2007, also called the Employment Non-Discrimination Act (ENDA).  This bill would extend protection to employees on the basis of sexual orientation. It has not come up for a vote in the senate yet, and it is not clear whether President Bush would veto the legislation. However, 31 states (depending on how you count) have passed some form of protection to employees on the basis of sexual orientation, the first of which was Wisconsin in 1982.

Local governments can also enact employment laws. For example, San Francisco County has passed some of the broadest ordinances that protect employees from taking drug tests in some circumstances, or from discrimination on the basis of height-weight proportions. 

In sum, there are many laws, federal, state and local, that protect employees from discrimination. It is important to understand that, if a specific class of employee is not protected, then the employer is basically free to do what it wants. For example, an employee cannot sue for nudist discrimination, or discrimination on the basis of political beliefs (in some situations). The base line principle is that an employer can hire or fire an employee for any reason it wants, subject only to the limitations of a contract, or a non-discrimination law that applies to it.

In the next episode, I will continue the discussion of non-discrimination laws, and delve more deeply into exactly how a non-discrimination case starts, and what an employee must prove in order to prevail. 

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