What Is Unlawful Employment Discrimination? FEDERAL LAW

Definition of discrimination

Employment discrimination is against the public policy of the United States. Many people misunderstand the meaning of employment discrimination. “Discrimination" does not mean an employer has to be fair, respectful or has to make good decisions. Workplace discrimination means the employer treats one person or group differently from others who are not in the same group, but are similarly situated.

The only workplace discrimination that is illegal is discrimination that is against public policy. Public policy refers only to things that are specifically prohibited by a statute (law) enacted by the legislature, or prohibited by a regulation promulgated (established) by a government agency. Under federal law, public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, age (40 years and older), religion, marital status, pregnancy and genetic information. Sexual harassment is considered a form of sex discrimination. There is no federal protection for sexual orientation discrimination, but many states provide this protection.

Public policy also protects people who blow the whistle on a matter of public concern, complain about improper wage and hour practices, and a few more rights protected by statute.

An employer cannot change terms of employment or fire an employee if the reason for the change is against the law (against public policy). For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. or because you blew the whistle on safety violations.

Definition of harassment

The same laws that prohibit discrimination also prohibit harassment. To be unlawful, the harassment must be based on one of the protected categories listed above. Harassment can include verbal conduct such as slurs, insults, derogatory comments, name-calling, and comments or questions about a person's body, clothing, appearance, customs, or sexual activity. Harassment can include offensive gestures, hostile eye contact or looks, sexually suggestive noises, and derogatory or graphic posters, cartoon or drawings.

Harassment is unlawful when it is either severe or pervasive enough to create an abusive environment. Severe conduct would include most physical contact and many types of threatening, vulgar or degrading conduct. Pervasive conduct is widespread, happens frequently, or takes place in many situations.

One somewhat offensive statement is not pervasive, so would not meet the definition of prohibited harassment. However, the same comment made over and over again may be pervasive, and there fore unlawful. Also, if an act of harassment is severe, then only one act is needed to meet the legal definition of prohibited harassment.

Work-related harassment can take place at the workplace or in any other location, as long as it arises from the employment relationship. For example, if a manager makes racially offensive statements to an employee at a company holiday party, the harassment still arises from the employment relationship.

People of any race, religion, age, sex, etc. can engage in harassment, just as they can engage in discrimination – even against other people who share the same characteristic. And the harassment may directed at one or more specific individuals, or it may be widespread throughout the workplace. Either way, it is unlawful.

Definition of retaliation

Retaliation is a form of unlawful discrimination. It is against the law to retaliate against a person who makes a good faith charge or complaint of discrimination or harassment. This means the employer cannot change terms of employment for the worse or fire an employee if the reason because of the complaint. For example, an employer cannot change your duties, pay, hours, work location, etc. because you blew the whistle on safety violations or reported sexual harassment, or reported any other violation of public policy.

** How to enforce discrimination**

There are various ways to enforce these rights, depending on the particular public policy involved.

Under federal law, a person complaining of discrimination based on sex, race, national origin, disability, age (40 years and older), religion, marital status, pregnancy or genetic information must file a written charge with the Equal Employment Opportunity Commission (EEOC) before he or she can file a lawsuit in court (see below). The EEOC is a federal agency that enforces a number of federal anti-discrimination laws. Most of these laws apply to employers who have 15 employees or more. www.eeoc.gov

Usually, the EEOC charge must be filed within 180 days of the event the employee is complaining about. However, some states have their own non-discrimination laws and a work-sharing agreement with the EEOC. In these states, an individual has longer to file the charge, often 300 days.

When there are a number of similar events involved, there may be a “continuing violation." This is common when there is discriminatory harassment. To be considered part of a continuing violation, the events must be similar to each other, not final (such as a termination or failure to promote), and relatively close in time to each other. To pursue a claim of discrimination under a continuing violation theory a person must file within 180 days of the most recent event. For example, if a manager made fun of Samuel because of his religion – a protected category – on January 12, January 25, February 19, March 22, and April 02, 2012, then Samuel must file his EEOC complaint no later than September 29, 2012. However, if your state has its own employment discrimination statute, the time limit may be longer due to a work-sharing agreement between the EEOC and the state agency that enforces the state law. Even if some of the events are too late to be part of the charge, they will still be relevant as background information and will help in pursuing your case, so don't leave anything out.

What does the agency do?

The agency will process the charge and make a decision to pursue the case with its own staff and attorneys, or it will give the charging party a right-to-sue letter, which will allow the charging party to file a lawsuit on his or her own behalf.

The entire process can take a long time, and in the end, it is unlikely the agency will pursue the case. The bad economy has left most state and federal agencies with smaller staffs, larger workloads, and not nearly enough funding to meet their mission. As a result, individuals who have been victimized by discrimination will probably need to pursue their cases using their own attorney. Nevertheless, even though the agency probably won’t do much, it is still necessary to file a claim with the agency before filing a lawsuit in court.

IMPORTANT: After the charging party receives the right-to-sue letter, he or she has only 90 days to file a lawsuit in court. If that deadline is missed, the opportunity to pursue the case will be lost forever.

FEDERAL GOVERNMENT EMPLOYEES: There is a separate and very complicated procedure to pursue a claim of discrimination against s federal agency. It is important to speak with an attorney or union representative who knows the federal agency system. Note you must take your first step within 45 days of the discriminatory event. Also, please review my guide to the EEO process for federal government employees: http://www.avvo.com/legal-guides/ugc/summary-of-federal-employees-eeo-discrimination-complaint-process.

Where to go from here

Employment law is complicated and fact specific. You may wish to consult with an experienced plaintiffs employment attorney in your state. To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is www.nela.org, and you can search for attorneys by location and practice area.

Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.