Discrimination in employment

Discrimination in employment
Authored by Andrew Wampler

Wilson 1bca35f096d56ee718c45bfa7080d4cdc0dac51aa6b2e653b2ea8ce1b527da5a

Introduction to discrimination in employment

Congress has enacted numerous federal statutes, and the Virginia legislature has passed similar state laws, designed to provide equal employment opportunities to all employees and designed to protect certain behavior so that such behavior, when engaged in, cannot form the basis of an adverse employment action (such as a failure to hire or promote, demotion, or termination). 

Under various state and federal laws, employers are prohibited from discriminating against individuals on the basis of:


  • race

     

  • color

     

  • national origin or ancestry

     

  • religion

     

  • sex

     

  • pregnancy

     

  • age

     

  • disability.

Employers may not take any steps that are “retaliatory” against an employee for alleging discrimination by the employer. Because an employer can be held liable under each applicable statute, it is important to know which law protects which protected class from discrimination.

The primary state statute that prohibits discrimination in employment is the Virginia Human Rights Act (VHRA). The VHRA prohibits employment discrimination based on:


  • race

     

  • color

     

  • national origin

     

  • religion

     

  • sex

     

  • pregnancy

     

  • childbirth or related medical conditions

     

  • age (40 and older)

     

  • marital status

     

  • disability. 

     

The VHRA only creates an independent cause of action for wrongful discharge within one year of the unlawful conduct.  The VHRA only applies to employers with more than five, but fewer than 15 employees, for discriminatory discharge and only applies in cases where an employee has been terminated.

The Virginians with Disabilities Act (VDA) is the exclusive state remedy for employment discrimination based on disability. (See Disabilities and reasonable accommodation for more information.)

The federal statutes that prohibit discrimination in employment against individuals based on   certain protected class memberships include:


  • Title VII of the Civil Rights Act of 1964 as amended (Title VII) prohibits employment discrimination based on race, color, religion, sex, and national origin.  It covers public and private employers with 15 or more employees.

     

  • The Pregnancy Discrimination Act of 1978 (PDA), amended Title VII to prohibit discrimination based on pregnancy, childbirth, or related medical conditions.  It covers employers with 15 or more employees.

     

  • The Equal Pay Act of 1963 (EPA) protects men and women who perform substantially equal work in the same establishment from sex based wage discrimination.  It applies to virtually all employers, regardless of number of employees.

     

  • The Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination in employment against individuals who are 40 years old or older.  The act applies to employers with 20 or more employees.

     

  • Title I and Title V of the Americans with Disabilities Act of 1990 (ADA) and amended as the ADA Amendments Act of 2008 (ADAAA) prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments (see Disabilities and reasonable accommodation for more information).

     

  • Sections 501 and 505 of the Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities who work for the federal government.

     

  • Title II of the Genetic Information Nondiscrimination Act (GINA) prohibits employment discrimination based on genetic information about an applicant, employee, or former employee.

     

  • The Civil Rights Act of 1991 increased the monetary damages in cases of intentional employment discrimination under Title VII, the EPA, and the ADA.

     

Employers should also note that other laws (such as the National Labor Relations Act (NLRA), the Virginia Workers’ Compensation Act, the Employee Retirement Income Security Act (ERISA), and the Occupational Safety and Health Act (OSH Act) prohibit employers from treating employees differently as a result of an employee’s concerted activity concerning:


  • the terms of employment

     

  • complaint of illegal activity or a serious safety violation

     

  • assertion of a workers’ compensation claim against an employer and use of a benefit plan. 

Title VII of the Civil Rights Act

Title VII prohibits employment discrimination based on race, color, sex, religion, and national origin and covers public and private employers who have 15 or more employees (volunteers, independent contractors, and directors in corporations are not counted as part of this total). Discriminatory actions prohibited under Title VII include, but are not limited to hiring, terminations, transfers, demotions, negative referrals, and harassment.

Employees who file suit under Title VII may base their claim under one of two theories:


  1. disparate treatment

     

  2. disparate impact.

     

Disparate treatment

The essence of a disparate treatment claim is:



  • the employer treated the applicant or employee differently than other applicants or employees not within that individual’s protected class




  • the employer’s differential treatment was intentional.

     



When an employee brings a disparate treatment claim under Title VII, he/she is alleging that his/her employer treated him differently than others because of his/her race, color, religion, sex, or national origin. While most disparate treatment claims allege that the employee was treated less favorably due to his/her membership in one of the protected classes, employers need to be aware that courts have found discrimination where an employer’s differential treatment resulted in equal treatment.


Example

An employer’s use of segregated facilities would constitute disparate treatment, even if the facilities are equal in all respects.


An employee cannot succeed with a disparate treatment claim by simply showing that he/she was a member of a protected group and then suffered some adverse employment action. To the contrary, the central issue in a disparate treatment claim is whether the employer’s actions were motivated by discrimination, and thus, an employee must be able to prove discriminatory intent.

 

Proof of disparate treatment

Case based on circumstantial evidence

More often than not, an employee does not have direct evidence of an employer’s discriminatory intent and must therefore rely on circumstantial evidence to prove his/her claim. Circumstantial evidence is evidence that, by itself, does not directly prove a fact of consequence, but allows the judge or jury to infer the existence of the fact.


Example

A female applicant suing an employer for sex discrimination could produce circumstantial evidence in the form of records showing that the company has never hired a woman for the position the applicant sought, despite having had several qualified female applicants over the years.


Litigation of a discrimination claim based on circumstantial evidence proceeds in three steps:



  1. Plaintiff must establish an inference of discrimination

    This simply means that the employee must be able to produce enough evidence to create some question as to whether the employer unlawfully discriminated against the employee. The evidence differs depending on what type of discrimination is alleged.

     


  2. Employer’s response – a legitimate, non-discriminatory reason

    In the event the plaintiff is able to establish an inference of discrimination, the burden shifts to the employer, who must articulate a legitimate, non-discriminatory reason for its adverse employment actions.

     


  3. Plaintiff must prove pretext

    Should the employer meet this burden of providing a legitimate, non-discriminatory reason for its decision, the employee must prove that the employer’s articulated non-discriminatory reason is really just a falsehood to mask unlawful discrimination.

     

Case based on direct evidence

Direct evidence is evidence based on personal knowledge or observation that, if true, proves discriminatory intent without inference or presumption. Examples of direct evidence include:


  • a notation on an applicant’s resume indicating a discriminatory bias

     

  • an employer’s openly discriminatory oral or written policies

     

  • statements (normally by decision makers) demonstrating unlawful bias was a consideration in the challenged action taken against an applicant or employee.

     

An applicant or employee may rely solely on direct evidence to prove intentional discrimination. If a plaintiff’s direct evidence is sufficient, then the law presumes that discrimination occurred and the burden is on the defendant to prove otherwise. In that situation, the employer usually defends against the claim by producing evidence that disputes the plaintiff’s evidence (for instance, the supervisor did not make discriminatory statements) or by asserting affirmative defenses.

 

Mixed-motive cases

Suppose an employer is preparing to terminate an employee on a recommendation from two of the employee’s supervisors. These supervisors claim that their recommendation is based on the employee’s poor performance, but the employer discovers that the two supervisors have made statements that could be interpreted as discriminatory. Can an employer go ahead and terminate the employee and avoid monetary damages by claiming that the supervisors would have recommended the termination even if they did not harbor any discriminatory bias? Indeed, it can.

A mixed motive case is characterized by an employee’s providing direct evidence of discrimination (such as discriminatory statements by supervisors) and an employer’s assertion that, while discriminatory intent may have been a motivating factor, the employer would have made the same employment decision had the discrimination not occurred. Employers should be careful in defending a mixed motive case, however. While an employer may be able to avoid damages in the form of back pay and front pay by showing the same decision would have been made even without discriminatory bias, a court can still award attorney’s fees to an employee so long as discriminatory bias was involved to any extent in the decision making process.

 

Avoiding discrimination

Here are some precautionary measures to help avoid or defend against a discrimination charge:

Update policies and apply uniformly

One of the most important precautionary measures an employer can take to reduce the likelihood of a successful lawsuit is to ensure that all policies illustrate practices that are in compliance with federal and state laws. In addition, an employer should make certain that all supervisory personnel understand each policy and apply them uniformly to each employee.  Employers should be able to demonstrate that employees outside protected classes have not been treated favorably in comparison to employees from non-protected classes, and that the employer’s policies have been consistently applied.

 

Conduct honest employee evaluations

Performance evaluations can serve as a powerful tool for employers in defending against discrimination claims. However, if supervisors do not utilize them effectively, evaluations can be equally helpful to litigious employees.


Example

As an employer, you do not want to terminate an employee for poor performance and then discover that the employee has received nothing but stellar reviews from his/her supervisors.


These performance evaluations can be used as evidence to prove that the “poor performance” explanation is simply pretext for the real (discriminatory) reason. Thus, it is imperative that employers train all supervisory and management employees to conduct honest performance evaluations.



Document poor performance/bad conduct

Like performance evaluations, conduct reports help to demonstrate an employee’s performance problems. Employees should be made aware of all discipline policies and employers are cautioned to document all disciplinary measures taken against an employee.

 

Provide employees with honest explanations for employment decisions

Initiating an adverse employment action (such as discipline) is rarely a pleasant experience for either employers or employees. However, an employer is wise to be candid with employees when discussing reasons for demotions, transfers, discipline, or termination. Do not downplay the seriousness of conduct or policy violations in order to avoid an awkward confrontation. To do so might provide an employee with the ability to show that the employer has contrived a false reason to cover up discriminatory intentions.

 

Disparate impact

Unlike disparate treatment, which focuses on intentional discrimination towards an individual due to his/her membership in a protected group, the essence of a disparate impact claim is that an employer’s seemingly neutral policy or practice is unlawful because it has a significant adverse impact upon a protected group. The fact that the employer had no discriminatory intent does not shield an employer from liability if the implementation of a policy or procedure results in a discriminatory impact.

As is the case with disparate treatment claims, an employee bears the burden of proving that a particular policy has a disproportionately adverse impact on a protected class.  Plaintiffs often rely on statistical evidence to prove their cases. Examples of statistical evidence frequently relied upon include:



  • selection rates




  • pass/fail rates on qualifying exams




  • population/workforce comparisons.

     



Put simply, a plaintiff must show that a particular employment practice produced discriminatory results.

 

Enforcement of Title VII

Title VII is enforced by both the U.S. Equal Employment Opportunity Commission (EEOC) and through private lawsuits filed in federal court. Before bringing a suit in federal court, a plaintiff must file a charge of discrimination with the EEOC no later than 180 days after the alleged discriminatory event occurred. If the employee’s claim is based on allegations that the employer maintained a continuous discriminatory practice, the employee must file his/her charge within 180 days of the last occurrence of the alleged discriminatory practice. 

After a charge is filed, the EEOC investigates the claim using a “reasonable cause” standard, which determines whether it is “more likely than not” that discrimination took place. The focus is on whether the employee established a prima facie case as well as whether there exists any evidence that the employer has contrived of another reason to hide discrimination.

If the EEOC determines that the employee met the reasonable cause standard that discrimination exists, it then attempts to eliminate the unlawful discrimination through discussion and negotiation to see if settlement may be reached, a process called conciliation.

If the EEOC determines that the reasonable cause standard has not been met, it will issue notice to the employee of his/her right to file a lawsuit on his/her own behalf (often referred to as a “right to sue letter”).

At that point, if an employee decides to file a lawsuit, he/she must do so within 90 days of receipt of this notice, or his/her claim shall be deemed untimely.

 

Remedies available under Title VII claims

Title VII disparate treatment remedies aim to get rid of discrimination and to “make whole” individual victims of discrimination by restoring them to the position they would have been in had the discrimination never occurred. 

Examples of available remedies include:

Injunctive relief:

Courts may enter an order to stop unlawful employment practices that might include job requirements, educational requirements, scored tests, and age limits.

Reinstatement:

Reinstatement is a preferred remedy in cases of discriminatory termination, but will not be ordered if the result would be to return the employee to an excessively hostile or antagonistic work environment. In addition, courts generally will not order reinstatement if it would result in another employee’s displacement.

Retroactive seniority:

Retroactive seniority awards an aggrieved plaintiff the amount of seniority he/she would have had the discrimination not occurred.

Front pay:

Front pay is usually allowed where reinstatement is not possible.

Back pay:

Back pay awards typically reflect lost wages and benefits.

Promotion:

Similar to reinstatement, a court will not order an employer to promote a successful Title VII plaintiff if the promotion would result in another employee’s displacement.

Compensatory damages:

Compensatory damages are only available as a remedy for intentional discrimination. Compensatory damages compensate an employee for non-economic injuries, such as pain and suffering, humiliation, and harm to reputation.

Punitive damages:

Punitive damages are also only available as a remedy for intentional discrimination. In determining the appropriateness of a punitive damages award, courts will consider:



  • the degree of reprehensibility of the employer’s conduct




  • the disparity between the harm or potential harm suffered by the plaintiff and his/her punitive damages award




  • the difference between this particular remedy and the remedies authorized in comparable cases.

     



Combined compensatory and punitive damage awards will be capped at:



  • $50,000 for employers who have 15 to 100 employees




  • $100,000 for employers with 101 to 200 employees




  • $200,000 for employers with 201 to 500 employees




  • $300,000 for employers with more than 500 employees.



 

Global Workplace Policy

Racial discrimination

In addition to certain other protected characteristics, Title VII makes it unlawful for an employer to discriminate in employment based on an individual’s race or color. An employer may not refuse to hire, promote, terminate, or harass, segregate or classify employees on the basis of race or color. 

As discussed previously, employees may file claims based on race discrimination under Title VII.  Employers should be aware that individuals may also file claims of race discrimination under Section 1981 of the Civil Rights Act of 1866 (Section 1981). Section 1981 is often invoked by employees who are seeking to avoid Title VII’s procedural requirements, and in some cases, to gain access to additional damages. Both Title VII and Section 1981 prohibit discriminatory employment decisions based on race or stereotypes often associated with race. In addition, both laws protect against racial harassment and retaliation.

Title VII vs. Section 1981




Title VII




Section 1981








Protects employees against discrimination based on race, color, sex, national origin, and religion




Protects against race discrimination and retaliation for race discrimination complaints.






Covers only those employers with 15 or more employees




Covers all private employers, regardless of the number of employees.






      Requires a charge of discrimination to be filed with the EEOC within 180 days of the alleged discriminatory event

 




Contains no statute of limitations. Thus, the period of limitations to be used is the one provided by a comparable state law.






Requires charge of discrimination to be filed with the EEOC prior to filing of suit




There is no requirement to file a charge with the EEOC first, nor must complainant wait for a “right to sue letter.”






Appropriate only for cases in which the employer is charged with intentional discrimination in disparate treatment claims




Appropriate only for cases in which the employer is charged with intentional discrimination.






Provides a statutory cap to its punitive damage awards




Does not provide a statutory cap to its punitive damage awards




 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 




National origin discrimination

Title VII prohibits discrimination based on national origin. While “national origin” pertains to the geographic birthplace of the employee or his/her ancestors, the term also encompasses members of all national groups and groups of persons of common ancestry, heritage, or background. Title VII not only protects against discrimination against employees who came from a particular country but also protects employees who associate with persons of a particular national origin. Thus, according to the EEOC guidelines, Title VII’s protections cover:



  • marriage with a member of a particular national origin



  • use of a spouse’s name that is associated with a particular national origin

     

  • membership in schools, churches, temples, or mosques generally used by persons of a particular national origin

     

  • membership in an organization that promotes the interests of national groups.

     

Immigration Reform and Control Act of 1986

The Immigration Reform and Control Act (IRCA) contains two anti-discrimination provisions that aim to deter employers from refusing to hire non-citizens. The first provision extends Title VII’s existing prohibition against national origin discrimination to cover employers with four or more employees and applies to employers that are otherwise outside Title VII’s coverage. The act’s second provision prohibits discrimination based on citizenship status. This protection is subject to the following three limitations:


  1. The employee, at the time of the alleged discriminatory action must either be:


  • a U.S. citizen

     

  • an immigrant who is either lawfully admitted for permanent residency, lawfully admitted for temporary resident status or admitted as a refugee, and must be pursuing naturalization.

     



  1. An employer is allowed to prefer hiring a U.S. citizen over an immigrant if the two applicants are equally qualified.

     

  2. Under the “public function” exception an employer is allowed to:


  • make hiring decisions based on citizenship status if required by law, regulation, or executive order

     

  • discriminate if required by a contract with the federal, state, or local government

     

  • hire only citizens if the attorney general determines that it is essential for the employer to do business with an agency or department of the federal, state, or local government.

     

Discrimination based on religion

Religion is not defined by the law. Courts define it to be a sincere and meaningful belief occupying - in the life of the possessor - a place parallel to that filled by the God of admittedly qualified religions. The law protects all aspects of the religion, its observances, and practices.

Under Title VII, religious discrimination is marked by an employer’s failure to accommodate an employee’s religious beliefs, thereby forcing the employee to choose between his/her religion and his/her job. Thus, Title VII’s prohibition against religious discrimination creates an affirmative duty for an employer to reasonably accommodate an employee’s religious beliefs and practices. This duty effectively makes Title VII’s protection of religion different than the protection given to other protected classes because, in many cases, the duty to accommodate results in an employer providing preferential treatment to those employees professing certain religious beliefs and participating in certain religious practices.

 

Burden of proof

A plaintiff who claims he/she was discriminated against by his/her employer’s failure to accommodate him/her must first establish three elements:


  1. he/she has a sincere belief that compliance with a work requirement is contrary to his/her religious faith

     

  2. he/she informs his/her employer of this conflict

     

  3. he/she is discharged or disciplined for failing to comply with the work requirement.

     

If the plaintiff establishes these three elements, the employer must then prove that it attempted to accommodate the plaintiff’s religious beliefs or was unable to provide an accommodation without putting too much of a burden on the employer. Thus, the issue in most religious discrimination claims is whether the employer’s accommodation is reasonable.

 

The extent of the duty to accommodate

It is well settled that an employer, in order to fulfill its duty to accommodate, does not have to provide an employee with the “best accommodation” or the accommodation preferred or proposed by the employee. In order to defend against a failure to accommodate claim, an employer simply must show that it offered a reasonable accommodation to the employee. 

An employer does not have to implement any accommodation at all, if to do so would result in an undue hardship. The U.S. Supreme Court has defined “undue hardship” as any accommodation that would impose more than a minimal cost for the employer to implement. Whether an accommodation is reasonable depends on the facts of each case.


Example

An employee requests to take off work for Yom Kippur, which occurs one day each year and may fall on a weekday. Courts will likely require an employer to accommodate him. 

Example

An employee claims that his religion requires him to be off work every Monday and Tuesday. Courts are not likely to force an employer to accommodate this employee.


Genetic information discrimination

The federal Genetic Information Nondiscrimination Act of 2008 (GINA) was passed by Congress to prohibit discrimination in health coverage and employment based on genetic information. Title I of GINA, dealing with health coverage, took effect in May 2010. Title II of GINA, dealing with employment protections took effect in November 2009.

All entities that are subject to GINA must, at a minimum, comply with all applicable GINA requirements. For employment matters, employers generally must employ 15 or more individuals for GINA to apply. Under GINA, “genetic information” includes:


  • an individual’s genetic tests

     

  • genetic tests of the individual’s family members (relatives to the fourth degree)

     

  • genetic tests of any fetus of an individual or family member who is pregnant, and genetic tests of any embryo held to be used for reproductive purposes

     

  • the manifestation of a disease or disorder in family members

     

  • any request for, or receipt of, genetic services or participation in clinical research that includes genetic testing, counseling, or education by an individual or family member.

     

Genetic information does not include information about the sex or age of any individual. The results of routine medical tests that do not measure DNA, RNA, or chromosomal changes (such as blood counts, cholesterol tests, and liver function tests) are not protected. Genetic tests include tests related to human proteins, metabolites that detect genotypes, mutations, several cancer screening tests, paternity tests, and genetic analyses of conditions such as sickle cell anemia and cystic fibrosis. Genetic tests do not include tests that check for viruses or for the presence of alcohol or drugs. 

With the nondiscrimination provisions of HIPAA, GINA prohibits covered employers from using genetic information for hiring, firing, or promotion decisions, and for any decisions regarding terms of employment. Employers may be found to have violated the act without intending to do so, because there is no intent requirement under GINA. Title II of GINA is enforced by the EEOC. Individuals may also have the right to pursue private litigation. Title I of GINA restricts health insurers or health plan administrators from requesting genetic information, or using it for coverage or rate decisions.

The EEOC released regulations under Title II, which became effective January 10, 2011. The provisions of Title II apply to private employers and to state and local government employers who have 15 or more employees, to employment agencies, to labor unions, and to joint labor-management training programs.

The discrimination and retaliation on the basis of genetic information prohibited by GINA does not depend on how the information is acquired. An employer may not request, require, or purchase genetic information of an employee or family member. This restriction includes conducting an Internet search on an individual in a way that is likely to obtain genetic information, actively listening to a third party conversation, or searching through a person’s belongings. There are significant exceptions to the restriction on acquisition of genetic information and they are discussed in the sections that follow.

 

Inadvertent disclosures

Inadvertent disclosures are not protected under GINA. However, this exception is limited. A disclosure is inadvertent only if:



  • the employer directs the individual and healthcare provider not to provide genetic information



  • the employer establishes that a request it made was sufficiently limited to make inadvertent disclosures unlikely.

     

Voluntary disclosure  

Voluntary disclosures by the individual for purposes of a voluntary wellness program are exempt. To fit this exception, a disclosure must meet all of the following conditions:



  • The disclosure is voluntary, meaning the employer does not require the information and does not penalize those who do not provide it.




  • The individual provides knowing and voluntary authorization on a written form provided by the employer. The form must be written in a way that is reasonably likely to be understood and clearly states the type of information to be obtained.




  • The information is provided only to the individual and to the healthcare professionals within the program and is not available to managers, supervisors, or others in the workplace.




  • Individually identifiable information is not provided to the employer; instead, the employer may only receive aggregate information that will not disclose specific identities.



Financial inducements for employees to participate in health risk assessments are still allowed, provided the individual may receive the incentive even if he/she chooses not to answer questions regarding genetic information.

 

Medical leave requests

An employer may request family medical information to substantiate the appropriateness of Family and Medical Leave Act (FMLA) leave for the care of a sick family member. 

 

Publicly available information 

Passive receipt of genetic information by an employer does not violate GINA when it comes from a source that is commercially and publicly available, such as newspapers, television, or the Internet. This does not include Internet searches of limited access sites, such as social networking sites that require permission to access certain information. 

The EEOC has suggested specific safe harbor language to be included in medical certification requests and other employer forms. That language states: 


The Genetic Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting, or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. 


Employers should include the safe harbor language regarding GINA in all requests for medical information. 

Any genetic information held by an employer covered by GINA must be kept in files that are separate from personnel files and must be treated as confidential medical records. The information may be kept in the same file that maintains information subject to the Americans with Disabilities Act (ADA). An employer may disclose genetic information only under the following circumstances: 


  • upon receipt of written request, to the employee or family member, if the family member is receiving genetic services

     

  • in response to a court order, to the extent specifically authorized by the order, and the employer must notify the employee of the order

     

  • is a part of an investigation regarding GINA compliance to government officials 

     

  • iin support of compliance with the certification requirements under the FMLA, or other medical leave law 

     

  • in limited circumstances, to a federal, state, or local public health agency. 

     

Genetic information received and filed prior to the November 2009 effective date of GINA need not be removed by the employer. Those documents that predate the effective date of GINA, though, are subject to the non-disclosure provisions of GINA now and in the future. 

Sexual discrimination

What is sexual discrimination?

Title VII prohibits employment decisions based on sex or sexual stereotypes.  “Sex” refers to gender and not to sexual practices or preferences. Other issues included under the broad umbrella of “sex discrimination” include compensation discrimination, pregnancy discrimination, and sexual harassment.

Under Title VII, an employer may not make employment decisions based on sex, nor may it implement employment practices that help foster sexual stereotypes. The sole exception to this prohibition is the bona fide occupational qualification (BFOQ) defense.

 

Bona fide occupational qualification

When an employer asserts the BFOQ defense, it is basically arguing that no man or woman, because of his/her gender, can perform the job at issue. In order to establish a BFOQ defense, the employer must demonstrate all of the following:

 



  • A direct relationship between an employee’s sex and his/her ability to perform the job exits.An employer may demonstrate a direct relationship by showing that all, or substantially all, individuals of one sex would be unable to safely and efficiently perform the duties of a particular position. However, courts will not uphold a rule that is based on sexual stereotypes. For instance, an employer could not implement a policy excluding women from a position that regularly required lifting more than 30 pounds due to the fact that this policy likely is based on a stereotype that women are inherently weak and unable to lift hefty objects.

     


  • The essence of the business requires a member of only one sex be hired.

    Discrimination based on sex is lawful only when the essence of the business operation would be undermined if the employer is forced to hire members of a both sexes.

     


  • There is no reasonable alternative.

    Although not universally required, many courts require that an employer must also be able to demonstrate that no alternative is available other than the exclusion of a gender from the position.

     

Factors to consider



  • Safety

    The safety of others, not of the employee, has traditionally been the most successful factor in justifying practices that could be viewed as discriminatory.

     


  • Privacy

    Courts occasionally uphold sex based employment policies that are motivated by privacy interests of third parties. For instance, courts traditionally have allowed health club owners who refuse to hire male personal trainers for their female only clubs to show that sex is a BFOQ. Under this theory, club owners allege that hiring males for a position that often requires close, intimate contact with the clients would be an intrusion into the privacy of the female clients.

     


  • Customer preference

    Normally, customer preference is not sufficient to support a BFOQ defense.

     


  • Role models

    A court may be inclined to uphold a BFOQ defense in situations where an employer asserts a need for an employee to be able to interact and relate with those with whom the employee works. For instance, a court upheld a rule implemented by the Omaha Girls Club that prohibited employment of unwed persons who became pregnant or caused pregnancy. The employer claimed the rule was enacted to provide positive role models in an attempt to discourage teenagers from becoming pregnant.

     

Lilly Ledbetter Fair Pay Act

The Lilly Ledbetter Fair Pay Act was passed in 2009 in response to a Supreme Court case involving a pay claim in Alabama. The law was retroactive to 2007 and reinstated prior law, clarifying that a discrimination claim for pay based on sex, race, national origin, age, religion, or disability accrues when:



  • a person receives a discriminatory paycheck

     




  • a discriminatory decision or practice is adopted

     




  • a person becomes subject to that decision or practice

     




  • that person is otherwise affected by the decision or practice.

     



The act restored prior application of federal law to pay claims. Under the act, every paycheck (not only the original decision to discriminate) resets the 180-day period to assert a claim. In this way, the law allows employees to challenge continuing pay discrimination, so that a claim is not lost if the employee is initially unaware of the discrimination. The result is that an employee is able to challenge pay discrimination that is compounded by time through raises, pensions, and other factors.

 

Equal pay

A female employee can sue for compensation discrimination under the Equal Pay Act of 1963 (EPA), which prohibits an employer from paying men and women who perform substantially equal work in the same workplace different rates of compensation.  Title VII and the Americans with Disabilities Act (ADA) also prohibit an employer from paying an individual a lesser rate of pay based on any protected characteristics covered by the respective acts.

 

The Equal Pay Act

The EPA prohibits an employer from discriminating between employees within any establishment on the basis of sex by paying them different wages for positions that require equal skill, effort, and responsibility, and which are performed under similar working conditions. Under the act, the term “wages” encompasses all forms of compensation. Thus, a differential in fringe benefits, when all other compensation is equal, may serve as the basis for a claim. While many employment laws require a certain number of employees before they apply, the EPA applies to every employer.

In order to prevail, a plaintiff must be able to identify an employee of the opposite sex who is within the same establishment and receives higher compensation for performing equal work. Courts are clear that they will not compare wages paid to employees from separate places of business unless the plaintiff can show that the employer’s operations are integrated within the separate facilities and that the administration of these facilities is centralized.

When determining whether two jobs are equal, it is the content of the job that is most important and not the formal job description. Guided by developed case law, the EEOC lists five factors used to determine whether jobs are substantially the same:



  1. Skill

    Courts will consider factors such as education, ability, experience, and training.  Employers should note that courts will focus on what skills are required to do the job, not what skills an individual employee happens to possess.  In other words, a difference in pay between two security guards cannot be justified by the fact that one has a master’s degree in classical music and the other does not, because that type of degree is not required for the security officer position.

     


  2. Effort

    The EEOC defines effort as the amount of physical or mental exertion needed to perform the job. Thus, under this definition, two workers on a factory assembly line could hold the same job title, but if one’s job duties require more manual labor than the other, the employer would be justified in paying him/her more. In addition, courts will also consider differences in the volume of work performed.

     


  3. Responsibility

    The EEOC defines responsibility as the degree of accountability inherent in the job. For instance, a retail supervisor who is responsible for balancing registers and locking the store at the end of the day may be paid more than a sales associate, even if the two individuals perform much of the same duties.

     


  4. Working conditions

    Working conditions refer to “surroundings” (elements regularly encountered by a worker) and “hazards” (the physical hazards regularly encountered, their frequency, and the severity of injury they can cause). Thus, an employer is justified in paying more to an employee if his/her position exposes him/her to greater hazardous conditions.

     


  5. Establishment

    The prohibition against compensation discrimination under the EPA applies only to jobs within an establishment. An establishment is a distinct physical place of business rather than an entire business or enterprise consisting of several places of business. In some circumstances, physically separate places of business may be treated as one establishment. For instance, if a central administrative unit hires employees, sets their compensation, and assigns them to separate work locations, the separate worksites can be considered part of one establishment.

Defenses

An employer may defend against a compensation claim by proving that the difference in pay rate is based on:


  • an established seniority system

     

  • an established merit system

     

  • a system that measures earnings by quantity or quality of production

     

  • any factor other than sex.

     

Employers should note that in correcting a pay differential, no employee’s pay may be reduced.  Instead, the pay of the lower paid employee should be increased.

 

Enforcement

The Secretary of Labor used to be responsible for enforcing the EPA. Pursuant to the Reorganization Act of 1977, the authority to enforce the EPA was transferred to the EEOC. Unlike Title VII, individuals are not required to satisfy any administrative prerequisites before filing suit. Employees must file suit within two years after they become able to pursue legal claims (the first day the employee is paid in a manner that violates the statute).

 

Pregnancy discrimination

The Pregnancy Discrimination Act (PDA) prohibits employers from intentionally discriminating against pregnant employees or maintaining policies that adversely affect pregnant employees.

What does the PDA protect?

The PDA prohibits discrimination because of pregnancy or childbirth only. It does not prohibit adverse employment decisions based on employee conduct caused by the pregnancy. For instance, an employer is justified in terminating an employee for excessive tardiness, even if the tardiness is caused by the employee’s pregnancy related morning sickness. The PDA does not require employers to treat pregnant employees better than they would any non-pregnant employee who was equally tardy.

 

Right to voluntary leave

The PDA requires that pregnant women be given at least the same benefits and leave time as any other employee. For instance, if an employer grants short term disability to all employees, it must allow a pregnant woman sufficient leave to recover from the birth of the child. Likewise, if an employer allows employees to take leave for personal or family reasons, it must grant this same leave to pregnant employees.

 

Health insurance

The PDA prohibits employers from discriminating against pregnancy in their health insurance programs. Under the PDA, an employer must:


  • provide the same pregnancy benefits to unmarried employees that it provides to married employees

     

  • reimburse pregnancy related expenses under the same method used to reimburse other medical conditions, and provide the same level of health insurance for spouses of male employees as it does for spouses of female employees.

     

Protection from hazardous work conditions

An employer faces a unique dilemma when employing individuals to work under hazardous work conditions. If it forbids a pregnant woman from working in hazardous areas, it risks Title VII litigation. If it chooses not to exclude pregnant women from hazardous areas, it increases its exposure to personal injury lawsuits if the child is born with injuries that can be tied to the hazardous environment. The U.S. Supreme Court has ruled that it is a violation of Title VII to exclude pregnant women from hazardous positions and has suggested that an employer that fully informs a woman of the risks involved could shield itself from personal injury liability.

 

Accommodation

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For instance, the employer may be required to provide light duty work, alternative assignments, disability leave, or unpaid leave to such employees if it does so for other temporarily disabled employees. If an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy related conditions to submit such statements.

Sexual harassment

The sex discrimination prohibitions of Title VII have been interpreted to protect employees against “sexual harassment,” recognized as a form of unlawful discrimination. Of course, if the prohibitions against sex discrimination mean a prohibition against sexual harassment, then, correspondingly, the prohibitions against race discrimination mean a prohibition against racial harassment (or, age discrimination and age harassment, etc.). Thus, employers should have policies prohibiting any form of unlawful harassment. 

In two well publicized, sexual harassment cases, the U.S. Supreme Court explained employer and employee responsibilities in this area of the law. In defining those responsibilities, the U.S. Supreme Court drew a distinction between harassment engaged in by a supervisor and that engaged in by a co-worker. Thus, who is alleged to be doing the harassing has an effect on the respective responsibilities.

 

Supervisor harassment

If a supervisor is found to have engaged in harassment, the employer will be presumed liable – even if the employer has a policy and never knew about the alleged harassment. Whether the employer can make out a defense on the basis of those factors will depend upon whether the employee suffered a “tangible employment action” as part of the harassment.

 

Tangible employment action

If a supervisor is found to have engaged in harassment and that harassment was in the form of a “tangible employment action,” the employer is liable, and has no defense. In short, the U.S. Supreme Court essentially found that the employer in this instance faces liability because it entrusted such decision making to a person who ultimately abused that authority in a tangible way.

For this reason, the authority to make any tangible employment action (such as hiring, demotion, failure to promote, termination, and the like) should never be placed upon only one person without organizational review. Tangible employment action cases, formerly known as “quid pro quo” cases, most often arise when a supervisor has carried out a threat to provide a job benefit or to avoid a punishment based upon the employee’s willingness to provide sexual favors (such as, “Sleep with me or you will lose your job.”). 

 

No tangible employment action

If a supervisor is found to have engaged in harassment but the harassment did not result in a tangible employment action, the employer is liable, unless the employer can establish that the employer acted reasonably to prevent or correct such behavior (for instance, the employer had a well-publicized policy against such harassment) and the employee unreasonably failed to take advantage of such preventive or corrective measures, or failed to avoid harm otherwise (for instance, the employee failed to complain). The employer must be attentive to the following:



  • Is there a policy that is well publicized?



  • Does that policy explain to whom complaints should be made?

Note:

The employer should limit the universe of complaint recipients to a relative few who are well trained to receive, investigate, and address such complaints.


  • When complaints are received, are they handled appropriately and effectively such that the employer will not be haunted by some failure to respond or by an ineffective or insensitive response?

     

Co-worker hostile work environment

If the person engaging in the harassment is a co-worker, the employer may be liable if the alleged victim of the harassment can establish that he/she was subjected to a work environment that was sufficiently offensive to substantially affect a condition or term of employment and that the employer knew or should have known of the harassment and failed to take action to correct or prevent it. There are a number of situations in which this could arise including a work environment that tolerates the use of offensive images and discussions or one in which male workers are allowed to demean and intimidate female co-workers.

The harassment complained of must be both objectively and subjectively offensive. In other words, the environment must be one that a reasonable person would find hostile or abusive, and one that the employee in fact did perceive to be hostile and abusive. Courts determine whether an environment is sufficiently hostile or abusive by considering the following factors:


  • frequency of the discriminatory conduct

     

  • whether the conduct is physically threatening or humiliating or consists of a mere offensive utterance

     

  • whether the environment unreasonably interferes with an employee’s work performance.


Example

An employee was the first woman to work in the new car section of a car dealership. The employee’s male co-workers constantly berated her, often in front of customers, and repeatedly ridiculed her appearance. The Court found that this type of harassment was sufficient to hold the employer liable for a hostile work environment.

 


Employer responsibility

As explained previously, in tangible employment action cases involving a supervisor as the alleged harasser, an employer is strictly liable when harassment perpetrated by supervisory personnel, who have the authority to affect the situations under which the employee works, results in a tangible employment action. Courts traditionally hold that supervisors who have the authority to make employment decisions are legally acting on their employer’s behalf, even if the employer did not know of the unlawful conduct or even had policies forbidding such conduct. 

If there was no tangible employment action, the employer may defend against sexual harassment claims by establishing both of the following:


  1. the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior

     

  2. the employee failed to take advantage of any preventive or corrective measures or to avoid harm otherwise. 

     

In non-supervisor cases, employers can be held liable for sexually hostile work environments created by co-employees and even non-employees (such as, customers or vendors) if the employer knew, or should have known, about the harassment and failed to take prompt corrective action. 

An employer is advised to implement and distribute anti-harassment policies. An employer can defend against a sexual harassment claim by showing that it exercised reasonable care to prevent sexually harassing behavior. To this end, employers should ensure that they implement a comprehensive anti-harassment policy.

This policy should:


  • state that the company will not tolerate harassment by managers, employees, or non-employees

     

  • give examples of some types of prohibited conduct or statements (without limiting the application of the policy to these examples)

     

  • outline procedures for reporting harassment and promise that employees will not be retaliated against for raising claims of harassment

     

  • warn that employees who engage in unlawful harassment will be subject to disciplinary action, up to and including termination. 

     

  • make sure the policy prohibits all forms of harassment, not just sexual.

     

Educate employees about harassment issues:

Do not make distribution the last act of prevention. Employees need to be educated on the types of conduct that are prohibited under the policy. An employer may want to conduct an anti-harassment seminar as part of any new hire training program. Supervisors and managers should be trained on how to recognize problems and handle complaints. Employees should be trained on their responsibility to report concerns as they occur.

 

Develop an effective reporting/grievance procedure:

Oftentimes, an employer’s liability is based on the employer’s failure to provide employees with a reasonable method to report harassment and not on the absence of an anti-discrimination policy.


Example

The U.S. Supreme Court has found that an employer’s policy did not protect it from liability because the policy required the employee to report the harassment to her direct supervisor, the very person who was harassing her. Therefore, employers should ensure that their policies identify at least two different avenues to which an employee may report a complaint, usually to a supervisor and a member of human resources.  Employers may also want to consider supplying their employees with a toll free hotline that allows employees to report complaints.

 


Conduct prompt, thorough investigations into complaints:

Do not wait for an employee to make a formal complaint. Courts have held employers directly liable for harassment if they knew or reasonably should have known about the harassment and did nothing to stop it. Furthermore, do not promise an employee that his/her complaint will be kept strictly confidential. Total confidentiality may not be possible because the employer may have to disclose the nature of the allegations, and perhaps even the identity of the alleged victim, to the accused or to witnesses in order to conduct a thorough investigation into the claim. Thus, the policy should only promise that complaints will be kept confidential “to the extent possible.”

 

Take appropriate corrective action:

Following an investigation into a harassment complaint, the employer should determine what corrective action is warranted and will be sufficient to stop the harassment, and should discipline the harasser as appropriate. The employer should meet with the complainant and explain the outcome of the investigation and what steps, if any, have been taken to resolve the complaint. Finally, the employer should review the sexual harassment policy with all parties involved in the complaint.

 

Employee responsibility

As the prior discussion indicates, employees do have some responsibility to take advantage of employer policies in this area. In co-worker harassment cases, the employee bears the burden of proving that an employer knew (or should have known) and failed to act to correct the alleged harassment. In supervisor hostile environment cases (no tangible employment action), the company can defend itself by proving the employee unreasonably failed to take advantage of the corrective or preventive measures of the employer (the policy against harassment). Of course, in either case, an employer’s “track record” in taking complaints seriously and handling them professionally and effectively will be instrumental in assessing the impact of an employee’s failure to complain. 

 

Same sex harassment

The U.S. Supreme Court has upheld discrimination claims in which an employee is harassed by a supervisor or co-worker of the same sex. The Court stressed that the critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not.

 

Is discrimination based on sexual orientation legal in Virginia?

Previously, neither federal law nor Virginia law provided specific protection against discrimination based on sexual preference. However, social views and laws are currently undergoing significant changes. In June 2015, the U.S. Supreme Court released a 5-4 opinion that struck down state laws refusing to recognize same-sex marriages.

The EEOC’s Strategic Enforcement Plan (SEP), which was adopted in 2012, listed “coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as an enforcement priority.  The U.S. Department of Housing and Urban Development (HUD) has adopted regulations to protect sexual orientation and gender identity in federal housing programs. In 2015, OSHA released a best practices memorandum on providing restroom access for transgender workers. As requirements and principles continue to evolve, employers’ policies should be neutral in respect to sexual orientation, gender identity or expression, and sufficiently prohibit harassing conduct based on sexual preference, gender stereotypes, or intolerance.

Age discrimination

It is unlawful for an employer to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.  

The Virginia Human Rights Act (VHRA) prohibits discrimination based on age of employees who are 40 years old or older.  

Additionally, Congress enacted the Age Discrimination in Employment Act of 1967 (ADEA) to encourage the employment of older individuals based on their ability rather than age and to prohibit acts of arbitrary age discrimination in employment.  The ADEA protects individuals who are 40 years of age or older from employment discrimination based on age, and its protections apply to both employees and applicants in public and private employment. 

 

Disparate treatment

Although plaintiffs can bring claims under the ADEA based on a disparate impact theory, most discrimination cases under the ADEA are brought under the disparate treatment theory.  The ADEA has adopted the same general principles governing the burdens of proof as those established in Title VII disparate treatment claims.  Therefore, the plaintiff attempts to establish an inference case of discrimination.  The employer responds with a legitimate, non-discriminatory explanation for the adverse employment action. The plaintiff must then prove that the employer’s reasoning is a pretext for unlawful discrimination.

In order to establish an inference of discrimination, a plaintiff must prove:


  • he/she is a member of the protected age group (40 years of age or older)

     

  • he/she was qualified for the position in question

     

  • despite being qualified, he/she was adversely affected

     

  • someone substantially younger, with similar or lesser qualifications, received the position (or other job benefit) denied to the plaintiff.

     

Does age of the replacement matter?

The U.S. Supreme Court has held that an employee is not required to show that he/she was replaced by someone outside of the protected age group.  For instance, a 56-year-old employee may establish a case of age discrimination by alleging that he/she was terminated and replaced by an employee who was 40 years old. 

However, the U.S. Supreme Court has also stated that the plaintiff’s replacement must be substantially younger.  A 68-year-old who is replaced by a 67-year-old will not be able to succeed on an age discrimination claim.



In limited instances, an employee may bring an age claim even though he/she was not replaced.  This situation typically arises after a reduction in force (RIF) when an employee alleges that his/her job was eliminated altogether because of his/her age and, he/she cannot identify a younger replacement.

 

Defenses to an age discrimination claim

BFOQ:

BFOQ is a defense in which the employer concedes that age was considered in an employment practice or policy, but asserts that using age as a qualification is “reasonably necessary to the normal operation of the particular business.”  The U.S. Supreme Court has adopted a two-part test for determining whether the BFOQ is a valid defense:


  1. the employer must prove that the challenged policy or practice is “reasonably necessary to the essence of the employer’s business”

     

  2. the employer must demonstrate that it is compelled to rely on age as the determining factor for its practice or policy. 

     

The employer may demonstrate this second factor either by demonstrating that it has a “substantial basis for believing that all or nearly all employees older than a certain age lack the qualifications required for the position,” or that it would be very impractical for the employer to test each individual employee to determine if he/she has the necessary qualifications.

 

Bona fide seniority system:

The ADEA permits employers to implement a bona fide seniority system (such as, a system that typically provides benefits based on length of job tenure) so long as it is not intended to evade the purposes of the ADEA.  To be valid, a seniority system may not require the involuntary retirement of any employee on the basis of age.  Seniority systems typically favor - rather than discriminate against - older workers, and employees rarely challenge termination decisions based on them.

Employers must ensure that all benefit programs comply with the Older Workers Benefit Protection Act of 1990 (OWBPA), which amended the ADEA to specifically prohibit employers from denying benefits to older employees.  Under the OWBPA, any age based reductions in an employer’s employee benefit plans must be justified by significant cost considerations.  Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.   

The OWBPA contains a few exceptions to this cost justification defense.  For instance, while an early retirement incentive program is typically legal, it will be deemed invalid if a court finds that it is involuntary or inconsistent with the purposes of the ADEA.  The OWBPA also states that an employer may not reduce contributions to an employee’s pension plan for any age related reason.

 

Good cause or reasonable factors other than age:

An employment decision based on good cause or a reasonable factor other than age (RFOA) is lawful.  Typically, an employer uses this defense by stating a legitimate business reason motivating the decision, such as poor performance.  Courts have held that factors that usually correlate with age (such as, pension eligibility, tenure, or seniority) usually fail to satisfy the RFOA defense.



Bona fide executives or high policymaking employees:

The ADEA allows an employer to enforce mandatory retirement at the age of 65 for “bona fide executives” or “high policymaking” employees.  When determining whether a particular employee qualifies, courts will consider the nature of the employee’s duties, responsibilities, and authority.  The ADEA specifies that the employee must have been serving in the bona fide executive position or high policymaking position for at least two years, and the employee may be retired only if he/she is entitled to an immediate, non-forfeitable, annual retirement benefit of at least $44,000 from the employer.

 

Reduction in force:

The central issue raised in ADEA claims involving a reduction in force (RIF) is the validity of the employer’s decision regarding which employees to layoff.  There are several criteria on which employers may lawfully base layoff selections.  Examples include:



  • performance, skill, and ability

     




  • productivity

     




  • inverse seniority.

     



Potential pitfalls

Employers invite liability during a RIF when they fail to articulate clear selection standards and review processes.  Thus, it is important for employers to implement layoff procedures and to provide documentation justifying each termination based on factors other than age.  Employers should be sure to:



  • Confirm that supervisors are providing and documenting candid and accurate evaluations. Employees should have a good indication of how they are performing and should not be blindsided during a RIF with the revelation that their performance is lacking.



  • Avoid a situation in which an older employee’s performance rapidly deteriorates in the face of an impending RIF.  In this situation, the employer must make an effort to document this decline through conduct reports.  Without this safety net, employers may have to rely on performance evaluations that may have occurred before the employee’s performance declined.

     

There are two techniques employers may use to limit the fallout from RIFs:

1.   Consider providing a voluntary separation or early retirement incentive.

2.   Make sure that separation occurs across all age groups.

 

Waivers of ADEA rights

At an employer’s request, an individual may agree to waive any rights or claims he/she may have under the ADEA in exchange for some benefit to which he/she is not otherwise entitled.  The OWBPA imposes specific requirements for releases of ADEA claims. 

According to the OWBPA, in order for a waiver that is part of an individual separation to be valid, it must:


  • be in writing and plainly communicated

     

  • specifically refer to ADEA rights or claims

     

  • not waive rights or claims that may arise in the future

     

  • be in exchange for valuable consideration (such as, money or any other benefit) in addition to any benefits or amounts to which the employee is already entitled

     

  • advise the employee in writing to consult with an attorney before signing the waiver

     

  • provide the employee at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

     

If the waiver is requested in connection with a termination or exit incentive program offered to a group of employees, the requirements are more extensive.  In addition to the requirements mentioned previously, each employee must be given at least 45 days to consider the agreement.  Furthermore, at the outset of the 45-day period, the employer must inform each eligible employee, in writing, of:


  • the class of eligible employees

     

  • the specifics regarding the eligibility requirements

     

  • any applicable time limits on participation

     

  • the job titles and ages of all employees eligible or selected for the program

     

  • the ages of all employees in the same job classification or organizational unit who are not eligible or selected.

     

Return of severance benefits 

The ADEA exists to prevent employers from forcing employees into early retirement for the economic benefit of the company.  Thus, while a release may prevent a separating employee from filing a suit based on claims under the ADEA, the employee is always free to challenge the validity of the release itself. 


Example

An employer implements an early retirement incentive program and has the participants sign releases in exchange for additional severance benefits.  The employees accept the benefits, but later wish to challenge the release, claiming they signed under duress.  Must the employees return the benefits they have already accepted as a prerequisite to filing suit?


The Supreme Court has held that employees have no obligation to return benefits before filing a suit challenging the validity of a release.  To require employees to tender back their benefits would have a “crippling effect” on the ability of such employees to challenge releases obtained by illegal means, such as misrepresentation or duress.

Federal contractors

Do federal contractors have to

comply with discrimination laws?

Executive Order 11246 applies to companies holding contracts and subcontracts with the federal government and prohibits race and gender discrimination with respect to compensation. The Office of Federal Contract Compliance Programs (OFCCP) is the agency in charge of enforcing Executive Order 11246 and regularly conducts compensation audits in order to detect systemic discrimination across pay grades (the purpose of the audit is not to detect isolated, individual cases of discrimination).

The OFCCP has proposed a new set of guidelines to be used in enforcing the non-discrimination requirements of Executive Order 11246. The “interpretive guidelines” articulate the methods and legal and statistical standards that will be applied by the OFCCP during routine compliance evaluations. The “self-evaluation guidelines” articulate the standards that contractors can voluntarily follow in order to audit their compensation practices for systemic discrimination.

 

Interpretive guidelines

The new regulations indicate that the OFCCP will determine if there is systemic compensation discrimination by analyzing the compensation of similarly situated employee groups (SSEGs) using a multiple regression model. A multiple regression model allows the agency to factor in legitimate causes of differences in compensation amounts such as education, experience, performance, and productivity. 

The OFCCP also conducts employee interviews in order to establish appropriate SSEGs, and to investigate possible compensation discrimination. The agency will rarely find discrimination based on statistics alone, and will almost always require anecdotal evidence of discrimination. The OFCCP will explain its findings to the contractor and will allow the contractor the opportunity to explain any disparities in compensation.

 

Self-evaluation guidelines

Under the proposed guidelines, the OFCCP requires contractors to evaluate their own compensation systems to determine if there are any race or gender based disparities.  The contractor does not have to use the same methods as prescribed under the “interpretive guidelines.” However, should the contractor choose to use this method, the OFCCP will deem the contractor in compliance with Executive Order 11246 and will orchestrate its compliance monitoring activities with the contractor’s self-evaluation approach.

Regardless of which statistical method is used, contractors are expected to group their employees into SSEGs, and must analyze these SSEGs at least once per year. The contractor is obligated to investigate any statistically significant disparities (any disparity greater than two standard deviations). If the disparities cannot be explained, they must be remedied.

 

Retaliation

Can employers retaliate against

employees or applicants who oppose discrimination?

Title VII prohibits employers from retaliating against applicants or employees because they opposed discrimination or participated in Title VII processes. In order to establish a case of retaliation, an employee must be able to show all of the following:



  • he/she engaged in a statutorily protected act



  • he/she suffered an adverse employment action

     

  • there is some causal connection between the two events.

Note:

The U.S. Supreme Court has recognized Title VII as protecting employees against retaliation for complaints of race discrimination.

 

Protected acts

Under Title VII’s “participation clause,” an employer may not discriminate against an employee because the employee participated in Title VII processes. Specific acts that are protected under the participation clause include:



  • filing a formal charge of discrimination against the employer

     




  • expressing an intention to file a charge

     




  • acting as a witness or testifying for a co-worker

     




  • refusing to act as a witness for the employer

     




  • assisting fellow workers in their discrimination claims.

     



Under the “opposition clause,” an employer may not discriminate against an employee because that employee opposed an employment practice made unlawful under Title VII. In situations where the practice opposed is not deemed unlawful under Title VII, the employee’s opposition is still protected so long as the employee had “a reasonable and good faith belief” that the practice opposed constituted a violation of Title VII.

Oftentimes, it may not be clear what type of conduct qualifies as protected “opposition.”  Courts have held that the following activities do constitute opposition and therefore are protected under Title VII:


  • complaining about sexual harassment

     

  • contacting an attorney to complain about sexual harassment

     

  • asking an employer whether race played a part in an employment decision

     

  • criticizing in a “quasi-social setting” an allegedly discriminatory hiring practice

     

  • indicating to a supervisor support for another employee who had filed an EEOC charge

     

  • filing an EPA complaint.

     

Conversely, courts have held that the following activities do not constitute opposition:


  • an African-American employee’s letter to his employer asking to meet to generally discuss affirmative action and race relations issues

     

  • protesting an employer’s decision not to transfer the employee’s secretary, where the protest was not based on discrimination

     

  • vague complaints about “ethnicism” and hints of racism.

     

Adverse employment action

Adverse employment actions, such as the following, could be used by an employee to prove retaliation:



  • termination

     




  • demotion

     




  • transfer

     




  • implementation of probationary period

     




  • failure to promote

     




  • negative references to potential employers

     




  • harassment.

     



Causal connection

In a retaliation case, the plaintiff bears the burden of proving that the employer took an adverse employment action in response to the plaintiff’s protected activity. One of the factors courts often consider is the amount of time that has elapsed between the protected activity and the adverse employment action. A short time period between the protected activity and the adverse employment action strengthens an employee’s allegation that the employment action was in response to the activity.

Federal protections

As noted previously, there are other federal protections for employees. These protections prevent employers from discriminating against employees – and more specifically from terminating them – on the basis of certain activity that Congress has determined should be encouraged. These protections include:

Employee Retirement Income Security Act (ERISA)

Includes a provision preventing an employer from discriminating against or terminating an employee because he/she has filed, or may file, a claim for benefits under any benefit plan governed by ERISA.

U.S. Bankruptcy Code

Includes a provision preventing an employer from discriminating against or terminating an employee because the employee has filed for bankruptcy protection under the Code.

National Labor Relations Act (NLRA)

Includes a provision preventing any employer (whether union or non-union) from discriminating against or terminating an employee because the employee has engaged in “protected concerted activity,” that is, activity in concert with other employees raising concerns about wages, hours, or other working conditions.

Family and Medical Leave Act (FMLA)

Includes a provision preventing an employer from discriminating against or terminating an employee because the employee has sought or taken protected leave.

Occupational Safety and Health Act (OSH Act)

Includes a provision preventing an employer from discriminating against or terminating an employee because the employee has made a complaint to, or participated in any action with, the Occupational Safety and Health Administration (OSHA).

Fair Labor Standards Act (FLSA)

Includes a provision preventing an employer from discriminating against or terminating an employee because the employee has made a complaint to, or participated in any action with the U.S. Department of Labor Wage and Hour Division.

Sarbanes-Oxley (SOX)

Sarbanes-Oxley Act, commonly referred to as “SOX,” contains employee protection provisions that permit whistleblowers within public corporations to file a complaint before the U.S. Department of Labor alleging unlawful retaliation. Section 806 of SOX prohibits publicly traded companies from discriminating against whistleblowers.

 

Remedies available for claims

In remedying meritorious claims of discrimination, courts seek to eliminate discrimination and to “make whole” individual victims of discrimination by restoring them to the position they would have been in had the discrimination never occurred. Title VII remedies available to claimants in successful Title VII claims include:

Injunctive relief

When a court awards injunctive relief, it requires an employer to do, or to refrain from doing, certain acts.  For instance, a court may banish unlawful employment practices, such as job requirements, educational requirements, scored tests, and age limits.

Reinstatement

Reinstatement is a preferred remedy in cases of discriminatory termination but will not be ordered if the result would be to return the employee to an excessively hostile or antagonistic work environment.  In addition, courts generally will not order reinstatement if it would result in another employee’s displacement.

Retroactive seniority

Retroactive seniority awards an aggrieved plaintiff the amount of seniority he/she would have enjoyed had the discrimination not occurred.

Front pay

Front pay may be allowed where reinstatement is not possible and represents the amount of money the employee would have earned if he/she had been reinstated.

Back pay

Back pay awards typically reflect lost wages and benefits.

Promotion

Similar to reinstatement, a court will generally not order an employer to promote a successful Title VII plaintiff if the promotion would result in another employee’s displacement.

Compensatory damages

Compensatory damages are only available as a remedy for intentional discrimination.  Compensatory damages pay back an employee for non-economic injuries such as pain and suffering, humiliation, and harm to reputation.

Punitive damages

Punitive damages (money damages meant to punish an employer and to deter future discriminatory conduct) are also only available as a remedy for intentional discrimination.  In determining the appropriateness of a punitive damages award, courts will consider:



  • the degree of reprehensibility of the employer’s conduct

     

  • the disparity between the harm or potential harm suffered by the plaintiff and the punitive damages award

     

  • the difference between this particular remedy and the remedies authorized in comparable cases.

     

Under Title VII, combined compensatory and punitive damage awards will be capped at:


  • $50,000 for employers with 15 to 100 employees

     

  • $100,000 for employers with 101 to 200 employees

     

  • $200,000 for employers with 201 to 500 employees

     

  • $300,000 for employers with more than 500 employees.

     

Virginia Human Rights Act

The remedies available to an employee suing under the narrow cause of action created by the Virginia Human Rights Act (VHRA) are quite limited.  Neither punitive damages nor reinstatement are recoverable.  Instead, the court may only award up to 12-months’ back pay with interest and if the employee prevails, his/her reasonable attorneys’ fees up to 25% of the back pay awarded.

 

National Labor Relations Act

The remedies for illegal discrimination under the National Labor Relation Act (NLRA) are limited to reinstatement and back pay for lost wages.

 

Enforcement

Title VII and the ADEA

Title VII and the ADEA are enforced by the EEOC and through private lawsuits filed in federal court.  Before bringing a suit in federal court, a plaintiff must file a charge of discrimination with the EEOC, or the Virginia Council on Human Rights (VCHR), no later than 300 days after the alleged discriminatory event occurred. If the employee’s claim is based on allegations that the employer maintained a continuous discriminatory practice, the employee must file his/her charge within 300 days of the last occurrence of the alleged discriminatory practice.    

After a charge is filed, the EEOC, or the VCHR, will investigate the claim using a “reasonable cause” standard that determines whether it is “more likely than not” that discrimination took place. The focus is on whether the employee established an inference of discrimination and whether there exists any reason to doubt the employer’s stated reason for the employment decision. If the EEOC determines that the employee met the reasonable cause standard, it then attempts to eliminate the unlawful discrimination through mediation geared towards encouraging settlements. If the EEOC determines that the reasonable cause standard has not been met, it will issue notice to the employee of his/her right to file a lawsuit (often referred to as a “right to sue letter”). In either case, if a claimant decides to bring a civil suit, he/she must do so within 90 days of receipt of a right to sue notice, or his/her claim is barred as untimely enforcement.  (If the VCHR investigates the charge, it will send its determination to the charging party and the EEOC.)

The EEOC also enforces the EPA.  Employees must file suit under the EPA within two years of a violation; such claims can be costly to employers. To mitigate the risk, employers should seek legal counsel immediately upon notification that a charge has been filed.

 

VHRA

The VCHR is a government body that is empowered to receive and investigate complaints of unlawful discriminatory practices based on the VHRA or alleged violations of the federal statutes prohibiting employment discrimination in Virginia. 

An individual bringing a claim under the VHRA may bring it directly in a general district or circuit court having jurisdiction over the employer who allegedly discharged the employee or may file a complaint with the VCHR. Any such action can be brought within 300 days from the date of the discharge or, if the employee has filed a complaint with the VCHR, within 90 days from the date of the VCHR’s final disposition on the complaint.

 

NLRA

Claims asserted under the NLRA are administered through the National Labor Relations Board (NLRB).

Form related to discrimination in employment



Global Workplace Policy