Illegal harassment and discrimination can destroy not only your career, but also your confidence and well-being. Your job security and enjoyment are fundamental to maintaining a healthy, balanced life. When that security is threatened, you might feel like your entire world is in jeopardy.
It’s not easy to tell when an unfair employment event is an act of illegal discrimination or harassment, or when you should call a lawyer. The law does not protect against every unfair employment action. But the law does protect against adverse employment actions that are tainted with discrimination because of the individual’s race, color, or other protected status. As a general rule, an employer cannot treat someone differently because of their protected status, which means that assumptions, stereotypes, and biases cannot influence employment decisions.
Disparate or unfair treatment in the workplace most often appears in the following kinds of actions:
- Failure to accommodate a medical condition
- Non-selection for a position
- Unequal training
- Job assignments
- Disciplinary actions
- Different performance standards
- Fringe Benefits
- Other terms or conditions of employment.
The EEOC is an independent agency charged with enforcing federal anti-discrimination statutes. This includes federal laws that prohibit discrimination and harassment on the basis of race, sex, color, national origin, disability, pregnancy, religion, genetic information, and age. Each federal statute also has an anti-retaliation provision prohibiting reprisal against any individual who engages in protected EEO activity. Protected EEO activity includes participating in any EEO process (such as being a witness or filing a complaint) or opposing activity which the individual believes is discriminatory (such as telling a manager that co-worker is creating a hostile work environment).
Whether you work for a private company, a non-profit, or a local government, you are probably also protected by local anti-discrimination laws. Each state in our area has its own anti-discrimination statute, as do many of the local governments such as the City of Alexandria (Virginia) and Montgomery County (Maryland). Under the federal anti-discrimination laws, usually an employee or applicant must file a charge of discrimination with the Equal Employment Opportunity Commission within 180 days. If the complainant works in a “deferral jurisdiction,” however, the employee generally may file a charge of discrimination with the EEOC or with the local deferral agency within 300 days. You must check your local government to be sure of your deadlines and place of filing. (Even shorter deadlines usually apply to employees of federal, state, or local government.)
In the D.C. Metropolitan area, the following local agencies have “deferral jurisdiction” that allow you to file either with the EEOC or with your local human-rights agency: D.C. Office of Human Rights; Montgomery County Office of Human Rights; Prince George’s Human Relations Commission; Howard County Office of Human Rights; Arlington County Human Rights Commission; Alexandria Office of Human Rights; Fairfax County Human Rights Commission, and more.
Local laws often protect broader categories of employees and local governments frequently change the law to protect more people. You must check with your local government, but many local human rights agencies offer protections to the following categories, even though the federal laws might not: LGBTQIA, family responsibility, personal appearance, age (18 years or older), matriculation, political affiliation, credit history, and arrest history.
Fully understanding the complex employment and labor laws that apply to federal, state and local employees as well as those employed in the private sector is challenging at best. Whether you are an employee who has a problem, or an employer who wants to do the right thing but finds it difficult to understand your obligations, you can benefit from the advice of experienced legal counsel. We are here to help. Don’t delay before finding the best lawyer for your situation. Important deadlines may lapse, and it takes time to present the best possible case. To learn your deadlines and the strength of your case, contact the attorneys at Alden Law Group for an evaluation.
A brief outline of federal employment anti-discrimination laws follows. These laws come from the discrimination-in-employment provisions embodied in Title VII of the Civil Right Act of 1964, the Americans with Disabilities Act (and the ADA Amendments Act), the Age Discrimination in Employment Act, the Pregnancy Discrimination Act, and the Genetic Information Nondiscrimination Act. Many state and local governments, as noted above, have their own anti-discrimination laws which may offer broader protections or apply different legal standards.
Title VII of the Civil Rights Act prohibits discrimination because of someone’s sex; it protects men and women, it protects LGBTQ individuals, it protects individuals from perceptions and assumptions regarding family responsibilities, and it protects against unwanted sexual attention or behavior.
Examples of sex discrimination include:
- dress codes that require women to wear skirts;
- not hiring a woman as a mechanic because she might be offended by the men’s rough talk in the shop;
- not hiring a man as a nurse, because patients are more accustomed to female nurses;
- asking female job candidates, but not men, whether they have children;
- not promoting a woman because staff won't respect her authority;
- allowing only men to coach a male sports team.
LGBTQ + Gender Identity
The EEOC and many federal courts interpret Title VII’s prohibition of sex discrimination to forbid employment discrimination on the basis of gender identity or sexual orientation and to protect LGBTQ individuals.
While this area of the law is evolving, the EEOC and/or courts have found that the law prohibits “sex discrimination” in the following forms:
- Harassing an employee because of a gender transition, such as by refusing to allow the employee to participate in employee groups, intentionally using the wrong name and gender pronoun to refer to the employee;
- Denying an employee equal access to a restroom based on their sexual identity;
- Firing an individual because they have made or are planning to make a gender transition
- Refusing to hire or promote an employee because he or she is gay or straight;
- Harassing employees because of his or her sexual orientation.
A pregnant woman might not get a promotion – even though she is the best qualified candidate - because her boss thinks she will choose not to return to work from maternity leave. A new dad might be denied leave to care for his newborn, because “that’s what moms are for.” These are adverse employment decisions based on stereotypes and biases of how an individual will, or should, act because of their family responsibilities. They are illegal.
Family responsibility discrimination is real but often not recognized. If you think you’ve been discriminated against because of your family responsibilities, call our office for an initial consultation to see how we can help you.
Title VII of the Civil Rights Act prohibits discrimination on the basis of an employee’s or applicant’s national origin. “National origin” is a broad term that can refer to many elements of individual’s background such as the country or region of their birth or their family’s origin. National origin discrimination can include unfair treatment because of one’s accent, ancestry, cultural heritage, or ethnicity.
Religious discrimination is prohibited if the employer treats the employee (or applicant) differently because of the person’s religious beliefs (or lack thereof) or if the employer denies the employee reasonable religious accommodations.
The prohibition against disparate treatment on the basis of “religion” exists regardless of the religion, including non-traditional religions and beliefs that are not held by any religion. Atheists and the most devout are equally protected from discrimination and harassment in the workplace.
Employers are also required to make reasonable accommodations for an employee’s sincerely held religious beliefs, unless the accommodation would result in an undue hardship for the employer. Accommodations may include schedule changes, leave for religious observances, uniform modifications, or grooming exceptions.
Disability and Requests for Accommodations
Disability discrimination usually arises in two forms – disparate or unfair treatment and failure to accommodate.
The Americans with Disabilities Act (ADA) prohibits employment discrimination not only for individuals who actually have a disability, but also for people who have a record of a disability or who the employer may perceive as being disabled when, in fact, they are not. This means that an employer cannot take (or fail to take) an employment action because of the employee’s or applicant’s disability, record of disability, or a perception that the employee is disabled.
The ADA also strives to give disabled employees equal footing in the workforce by ensuring that employers provide workplace adjustments so disabled individuals can succeed. An employee is entitled to a workplace accommodation if the employee is a “qualified individual with a disability.” If the employee is disabled and able to perform the essential functions of their job with or without reasonable accommodation, the employer must provide an accommodation, unless doing so would present an undue burden.
An employee can simply ask a boss, a manager, or their Human Resources department for an accommodation. The request should trigger an interactive process where the employer tries to learn what kinds of accommodations may be effective, and the employee is required to provide additional information as necessary to clarify their needs for accommodation. Employers are often entitled to some medical information to evaluate appropriate accommodations and determine that the individual has a covered disability that requires accommodation.
The interactive process can be frustrating. You may significantly limit your ability to preserve your rights if you do not participate in good faith or if you withhold certain information from the employer. By talking with a lawyer, you can learn whether your employer’s requests for medical information are appropriate or abusive.
If you think you have been the victim of disability discrimination, or if your employer is not cooperating with you to provide an accommodation, and you want to know your rights and options, contact us. During an initial consultation, we can evaluate whether you may have an employment discrimination claim, how to pursue and protect your rights, and identify what remedies may be available for you.
The Americans with Disabilities Act prohibits discrimination against an individual who has HIV or AIDS – as well as individuals who are perceived to be HIV positive. It’s just that simple. If you have been asked about your HIV status at work, or if you think you’ve been denied job opportunities or treated unfairly at work because your HIV stats, call us to learn about your rights.
Under the federal law, the Age Discrimination in Employment Act (ADEA), an employee is protected from age-based discrimination if they are 40 years old or older. In addition, even if you are under 40, you may still be protected if your job is located in a jurisdiction where a state or local law has expanded the definition of age discrimination. For example, in Washington, D.C., the D.C. Human Rights Act prohibits individuals from age discrimination in employment if they are at least 18 years old.
Hostile work environment & Harassment
When people hear the word “harassment”, they usually think of sexual harassment involving demands for sexual favors or unwanted physical touching, but harassment can come in many different forms and can be rooted in many different biases. Harassment involving sexual assault gets the most attention in the media, but illegal harassment covers a much broader type of conduct that may target a broader segment of the workforce.
Harassment takes many forms, including disparaging comments, offensive jokes, or inappropriate comments or gestures. Harassment is unlawful if it is because of the employee’s status in a protected group (based on race, color, religion, sex, national origin, age, disability or genetic information).
Sexual harassment is harassment that occurs because of that person’s sex, and unlawful sexual harassment includes requests for sexual favors and unwelcome sexual advances. Sexual harassment that is pervasive and severe enough to create a hostile work environment may also include other verbal or physical harassment, such as pervasive comments or innuendo.
Harassment may also be unlawful if it is done in retaliation for protected workplace activity, including filing a charge of discrimination, testifying or participating in an investigation of discrimination, or objecting to an employer’s discriminatory practices.
Generally, a single instance of harassment is not enough to trigger a violation of the law. An employer becomes liable where the harassment is so severe or pervasive that it alters the employee’s terms and conditions of employment, giving rise to a hostile work environment.
Employees have a duty to report workplace harassment, and employers have obligations to take steps to stop it.
Employers are liable for the harassment committed by their supervisors – whether based on sex, race or some other prohibited basis. If the supervisor’s harassment of a subordinate employee results in a “tangible employment action” (a significant change in the employment relationship), then the employer is liable. If the supervisor’s harassment does not cause a tangible employment action, the employer can avoid responsibility for the supervisor’s harassment if the employer can show that it took reasonable steps to prevent and correct harassing behavior (sometimes even if those steps are not successful) and if the employee failed to take advantage of opportunities to report the harassment.
Harassment is invidious and destructive and creates toxic work environments. At least one medical study found that people with a history of workplace harassment have significantly higher chances of suffering depression, anxiety, hypertension, and sleep disorders. Don’t let an illegal toxic work environment threaten your career or health.
If you think you’ve been harassed and don’t know where to turn, don’t try to fight it alone. Talk with our experienced and compassionate lawyers to learn how we can help you.
Pay Discrimination, Equal Pay Act
One common form of discrimination is disparate pay. Pay discrimination is prohibited by the Equal Pay Act (EPA) and by the anti-discrimination statutes (e.g., Americans with Disabilities Act, Title VII, Age Discrimination in Employment Act).
The Equal Pay Act commands “equal pay for equal work” and applies only to sex-based disparate pay; it does not protect from any other kind of pay discrimination.
Under the EPA, an employer may not discriminate by paying different wages to men and women for equal work, which requires equal skill, effort and responsibility, and which is performed under similar working conditions. The requirement of “equal work” does not mean that the jobs must be identical, but the positions must be closely related or very much alike. Likewise, working conditions do not have not be equal, but they must be similar.
To prove an EPA claim, the employee is not required to show that the wage disparity is sex-based – typically it is enough to show that men and women are not paid the same. The employee also does not need to draw comparisons to all comparable employees of the opposite sex – one can be enough.
After an employee presents evidence of wage disparity, the employer can avoid liability under the EPA if it can show that the wage disparity was based on a seniority system, a merit system, an incentive system, or a differential based on a factor other than sex, including a gender-neutral legitimate business reason.
The other anti-discrimination statutes also prohibit wage-based discrimination, but the application of the law is slightly different and the prohibition applies to the remaining protected classes of employees – race, national origin, religion, disability, age, and sex.
Pregnancy & Breastfeeding
The Pregnancy Discrimination Act (PDA) protects women from unfair treatment on account of pregnancy, childbirth, or related medical conditions. An employer cannot refuse to hire a woman, or take other action against her, because of her pregnancy as long as she is able to perform the essential functions of her job.
If a woman’s pregnancy causes her to be limited in her activities, the employer has to treat her the same as it would any other person who experiences the same kind of limitations. The law also prohibits discrimination on the basis of an employee’s fertility or childbearing capacity. Sex-specific rules that restrict a woman’s employment opportunities because of a pregnancy (or the possibility of pregnancy) are usually not allowed.
The PDA also protects women who wish to breastfeed their children. Lactation is a pregnancy-related medical condition and generally must be accommodated. Related laws under the Affordable Care Act and the Fair Labor Standards Act require employers to give reasonable break time and a private place for breastfeeding employees to express milk.
It is courageous to report harassment and to challenge illegal employment actions based on biases and stereotypes. Everyone knows speaking up can be risky. Many people don’t know, however, that the law offers broad protections for individuals who invoke their right to be free from discrimination in the workplace or who help others who choose to file a complaint. Whether you participate in the complaint process or you oppose something you think is discriminatory, your employer is not allowed to retaliate.
There are many ways you can voice your opposition to something you feel is a violation of the anti-discrimination laws. You might complain to your manager that a co-worker is surfing inappropriate websites at work. Maybe you speak up at an all-hands meeting, asking why people of color have not been selected for managerial positions. Perhaps you tell a colleague that you don’t appreciate their crude jokes. Each of these actions is protected and the law prohibits reprisal.
To be illegal, reprisal doesn’t have to result in a tangible employment action, like a demotion or a termination. It can be more nuanced, such as a threat to take a personnel action or taking away job duties.
If you engage in activity to “oppose” discrimination, you are engaging in protected activity. If your employer punishes or threatens you for it, you can file a reprisal claim. To prove your case, you have to show that:
- The employer or manager knew about your protected activity.
- A connection exists between your protected activity and the retaliation. The easiest way to prove a connection is to show that the retaliation followed swiftly after the employer learned about your protected activity.
- You exercised your right to oppose in a reasonable manner.
- Your opposition was based on a good faith belief that the conduct was discriminatory.
You are protected (Note: all that is required is a good faith belief that the conduct is discriminatory – it is not necessary for the conduct to actually be found to constitute discrimination in order for you to be protected from reprisal).
If you think that you’re a victim of illegal reprisal, contact us to learn more about your rights.
There are also laws that protect employees from reprisal for engaging in other types of activities, such as disclosing illegal practices, violations of the law, or gross mismanagement. For more information, please see our section on whistleblower reprisal.