As many of you may recall, the Civil Rights Act of 1964 (CRA) implemented employment discrimination laws in the United States that have sought to protect virtually every individual from discrimination in the hiring and employment process. The CRA provides these protections to employees of almost every company in America employing 15 or more persons. As you may expect, the CRA protects employees of private employers, but coverage is also in place for employees of state and local governments, employment agencies, labor organizations and labor-management committees.
Since the passing of the CRA, public pressure and political will have led to amendments and expansions of the rights granted with the 1964 statutes. At times, the amendments include newer forms of discrimination and other employment issues that have arisen over the past 50-plus years. This trend will most likely continue, but there is already a large body of federal laws protecting the rights of virtually any potential worker in the American workforce. This column includes a review and summary of some of the more comprehensive laws addressing illegal discrimination in the workplace. Please bear in mind that the following review is not a comprehensive listing of the all the elements of the CRA.
The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA also prohibits discrimination against individuals with disabilities in public accommodations, transportation and telecommunications. The ADA prohibits job discrimination on the basis of an employee’s disability, which is defined as a physical or mental impairment that substantially limits a major life activity or a history of such a disability.
To be protected under the ADA, an employee must have, have a record of or be regarded as having a substantial (as opposed to a minor) impairment. A substantial impairment is one that significantly limits or restricts a major life activity, such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working. The employee must also be qualified to perform the essential functions or duties of their job, with or without reasonable accommodation, in order to be protected from job discrimination by the ADA. Essential functions are the fundamental job duties that an employee must be able to perform without assistance or with the help of a reasonable accommodation. An employer cannot refuse to hire an employee because their disability prevents the employee from performing duties that are not essential to the job.
Race discrimination is another aspect of the CRA and involves treating someone (an applicant or employee) unfavorably because that person is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color or certain facial features). Similarly, color discrimination involves treating someone unfavorably because of skin color complexion. As examples, court rulings have held that race and/or color discrimination can involve treating someone unfavorably because the person is married to (or associated with) a person of a certain race or color. Additionally, discrimination can occur when the victim and the person who inflicted the discrimination are the same race or color.
The CRA also prohibits harassment of a person because of that person’s race or color. While not a complete list, harassment can include racial slurs, offensive or derogatory remarks about a person’s race or color, or the display of racially offensive symbols. Although the law does not prohibit simple teasing, offhand comments or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). In past CRA cases, the harasser can be the victim’s supervisor, a supervisor in another area, a co-worker or someone who is not an employee of the employer, such as a client or customer.
The United States Equal Employment Opportunity Commission (EEOC) defines gender discrimination as “treating someone (an applicant or employee) unfavorably because of that person’s sex.” Both your gender identity and sexual orientation are protected under this definition. Sexual harassment is also a form of gender discrimination that is unlawful in the workplace, according to the EEOC. To be illegal in an employment situation, gender discrimination must negatively affect a “term or condition of employment.” This includes, but is not limited to, gender bias in discrimination in hiring, firing or layoff decisions; sexual harassment; unequal compensation, promotions and benefits based on gender; and discrimination due to gender identity or sexual orientation.
It is worth noting that anyone can either perpetrate or be a victim of gender discrimination in the workplace, regardless of their own gender. In fact, the perpetrator and the victim can even be of the same gender. As a result, though some groups may be at a greater risk than others, anyone can experience gender discrimination.
For years, there was an issue regarding whether the CRA protected employees against sexual orientation and gender identity discrimination. In June 2020, however, the United States Supreme Court ruled that employers can no longer take adverse action against employees simply for being gay or transgendered. In 2017, about 11.3 million Americans identified as lesbian, gay or bisexual. Of those who so identified, roughly 20% reported experiencing workplace discrimination because their sexual preferences did not match their employer’s expectations. Workplace discrimination based on sexual preferences is now unlawful. This 2020 ruling may have a significant impact on America’s employers.
The opinion, written by Justice Gorsuch, rejected a traditional interpretation of the CRA and included sexual orientation and gender identity on the list of grounds of employment discrimination prohibited under the CRA. The high court reasoned that discrimination on the basis of homosexuality or transgender status necessarily requires an employer to intentionally treat the employee differently “because of” their gender — this is what the language of the CRA is directed to eliminate. Thus, an employer who intentionally penalizes an employee for being a gay or transgendered necessarily violates the CRA, and an employer can no longer fire an employee simply for being homosexual or transgender.
Federal and state laws regulate each of the above points, so you will need to contact your business attorney with any questions. It is almost always advisable to review human-resource policies and the language and intent of employment handbooks to help ensure that your forge is not acting on the wrong side of the CRA and its more recent alterations.