Employment Law

Retaliation is the most common form of discrimination in the workplace. This occurs when an employee is made to feel fearful of potential consequences if they complain or assert their rights or have been punished for submitting a complaint. This form of discrimination may include being fired, demoted, or receiving a disciplinary sanction for exerting your right to file a complaint towards your superior.

1. What are whistleblower and antiretaliation laws?

Many violations of the law, and many dangers to public health and safety, go unreported because people who know about them are afraid of retaliation. As our livelihoods, and often our health insurance, are dependent on our jobs, the fear of losing a job is pervasive. Whenever the law provides a remedy for victims of retaliation, it encourages employees to come forward with evidence that will make our world safer, healthier and more just.

Many, if not most, of the laws that protect workers, such as antidiscrimination laws, wage and hour protections, and health and safety laws, also make it illegal for an employer to retaliate against someone who engages in conduct which the law protects.

Many laws protecting the public at large, such as environmental laws, taxpayer-funded programs, and government regulation of certain industries, such as nuclear power, trucking, and airlines, protect employees who disclose information that the employee reasonably believes is evidence of illegality, gross waste or fraud, gross mismanagement, abuse of power, or a substantial and specific danger to public health and safety.

2. What is the difference between whistleblowing and retaliation claims?

Although whistleblower and retaliation claims are often discussed interchangeably, and claims brought by whistleblowers generally involve retaliation by an employer, there is a difference between the two types of claims.

Whistleblowing complaints focus on conduct prohibited by a specific law and/or conduct that may cause damage to public safety, waste tax dollars, or violate public trust in an honest, accountable government. Whistleblower complaints seldom include an employer’s retaliation for complaints about personal dislikes or issues that affect only a single person.

However, laws governing the workplace that guarantee rights to each individual worker, such as the right to be free from discrimination, the right to be paid minimum and overtime wages, and the right to join a union, do address the rights of an individual worker to enforce their personal legal rights under the law, and to support others who enforce their personal legal rights. If employers interfere with those rights in illegal ways, the individual can bring a retaliation claim to vindicate those individual rights.

3. How can I show that I was retaliated against in violation of the law?

With some variations among the laws, most whistleblower and anti-retaliation laws will require that a victim prove these elements:

That you engaged in protected activity, such as reporting a violation, testifying as a witness, or some other action to help enforce the law. That the employer knew or believed you took such protected activity, that you suffered an adverse employment action. That your protected activity caused the employer to take adverse action.

4. What conduct is considered to be “protected activity?”

The scope of protected activity is defined by each law that creates an employee protection. Under some laws, only an actual complaint to a specific agency is protected. Under some state laws, there is a “play fair” provision which requires employees to tell their employers about the wrongdoing first, to allow them an opportunity to correct the problem. One court held that telling the boss that you plan to sue for overtime is not protected — only actually filing a complaint is protected. Other courts have read the law with an eye toward the purpose of protecting anyone who tries to help enforce the law.

For example, under the Civil Rights Act of 1964 (also known as Title VII), employees are protected for (1) participating in proceedings to enforce the law, and (2) opposing unlawful discrimination. The “participation” clause protects anyone who files a charge of unlawful discrimination or serves as a witness, whether or not the charge had merit. The “opposition” clause, however, requires that the employee have an objectively reasonable basis to believe that a violation of the law had occurred. So, if you caution the boss that some action might be a violation, and you are fired just for giving that caution, your claim of retaliation will depend on whether the judge thinks it was reasonable to believe that there was a violation.

Protection can begin as soon as the evidence suggests that management thought the worker might be a witness in a future enforcement proceeding. Filing a grievance, contacting the media, refusing to perform illegal assignments, and other forms of standing up against violations of the law can be protected. Even complaints that are indirect or misdirected may result in protection if they reveal to management the intention to enforce the law. For employees assigned to safety, quality control, or enforcement work, doing that work “too well” is also protected.

5. Can an employee go too far: is some conduct not protected activity?

Yes. If you get into an argument with a supervisor about what is or is not legal on the job, and you punch the supervisor, you are not protected from being fired for punching the supervisor.

Courts have recognized that protected activity may be associated with “impulsive behavior.” Employees cannot be disciplined for protected activity so long as it is lawful and the character of the conduct is not indefensible in its context. A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and workplace discipline. If the employee’s behavior oversteps the defensible bounds of conduct, the employee can lose the protections of the law. For example, one employee lost after swearing at a supervisor, refusing to change conduct, and daring employer to fire the employee. So, it’s important to keep your cool.

6. What if my employer doesn’t know I am involved in protected activity?

Especially where the whistleblower has tried to be anonymous, it may be hard to prove the employer has knowledge of the protected activity. Still, some courts will use inferences to deduce who the employer may have suspected. If you were among a select few who had the necessary information and the courage to speak up, that might be enough for a judge to “infer” employer knowledge. Sometimes, the employer’s investigation or interrogation of an employee can reveal the employer has knowledge of the protected activity.

To avoid this problem, some sophisticated whistleblowers will announce their protected activities. If they disclose copies of evidence to an agency, they can send a copy to the employer by certified mail. Certified mail has the advantage of creating a document that shows the date the employer received the item. If the retaliation occurs shortly after the whistleblowing (say within six months, or sometimes longer), then the timing alone may persuade a judge that the employer’s true motive was because of the whistleblowing.

7. What is an “adverse employment action?”

A few state laws provide a remedy only for discharges. Most anti-retaliation laws provide remedies for any discrimination or “adverse employment action.” Courts have varied on what constitutes an “adverse employment action.” Usually, any action that costs the worker money will be an adverse employment action. Discharges, of course, cost the victim money. So do demotions and denials of overtime, promotions, or benefits. Formal discipline is generally accepted as an adverse employment action. Courts are inconsistent on whether they will allow a remedy for a bad evaluation, denial of a transfer, changes in hours or work location, hostile remarks, denial of parking privileges, and other changes that do not reduce a worker’s paycheck. Some laws clearly prohibit any discrimination in employment.

8. I haven’t been fired, but my employer has decided to make my life at work very difficult. Can I still bring a claim if I haven’t been terminated?

While the legal rights of employees have increased, so has the sophistication of bosses who want to retaliate. Instead of discharging a whistleblower, they look for more subtle ways to apply pressure. Promotions or transfers may evaporate. Discipline can increase. Hostile remarks can make you feel unwelcome, like you are an outsider. Isolated incidents can come together to paint a picture that it is time to go.

Can the employer convey the need to quit with measures that are safe enough to avoid legal action? Across the country, bosses and workers are playing cat and mouse to find out. The courts have applied the same doctrines used in sexual harassment cases to protect workers who stand up for their rights. When courts conclude that the employer was trying to get the worker to quit, or made working conditions intolerable, then they declare a “constructive discharge,” and allow the victim full remedies after quitting.

9. How do I prove that the protected activity caused the adverse action?

Causation can be proved either by direct evidence or by an inference.

Direct evidence is evidence that the employer was mad at the protected activity. If you or another witness saw a supervisor spout off about someone reporting a violation, that is direct evidence of the employer’s “animus” against protected activity. Similarly, if the employer announces that whoever calls the government will be fired, or warns employees against reporting violations, that is direct evidence of retaliation.

A worker may have a strong case even without any direct evidence. In some cases, causation is obvious. The boss runs into the office yelling about the so- and-so who reported a violation of the law. Norma Rae raises her hand and announces that she made the call. The boss fires her on the spot. The timing and personal animus make the retaliation clear.

Everyone knows that it is illegal to fire workers just because they are black or female, or because they organized a union. When the employer knows that it is illegal to fire someone for a certain reason, they will usually try to cover it up.

10. Are all of the whistleblower and anti-retaliation laws the same?

No. Unfortunately, whistleblower and anti-retaliation laws generally take on the same rights and remedies as the law relating to the underlying right they protect, which means that they can vary widely from one another.

Some laws, like the Fair Labor Standards Act, gave victims of retaliation direct access to courts to enforce their rights to reinstatement, back pay and other remedies. Other laws, like the Civil Rights Act of 1964, and the new Sarbanes-Oxley Act of 2002, require victims to file first with an agency, but then allow access to the courts if the agency does not resolve the complaint within six months.

Since each law with an employee protection is unique, victims of retaliation may face a patchwork of procedures and possibilities. Employees who have the confidence to speak up sometimes have opposed various kinds of unlawful activity.

For example, a member of a union safety committee may engage in concerted union activity, oppose an environmental violation, and complain about unsafe working conditions — all with the same phone call to one agency.

In some cases, the activist may have opposed various kinds of unlawful conduct in separate actions. When the employer finally snaps, it may be hard to tell which protected activity provoked the retaliation. In these situations, it is hard to tell which law will be applied, or which will provide the best remedy. The employer, when faced with a variety of charges, will argue that the victim made inconsistent claims and none of them have merit. Special attention, therefore, is required to make each complaint explain how the protected activity that provoked retaliation is protected by all of the laws asserted.

The analysis of which legal claim to pursue must start with a sincere attempt to understand why the employer retaliated.

Did the decision maker state his or her reasons?  Has the employer stated in writing a reason that is illegal?  Do the circumstances of timing, animosity, or a pattern reveal what the employer’s true motives are?  If your company has a progressive discipline policy, was it speeded up or ignored in your case?  Have other employees been fired for whistleblowing or retaliatory reasons? 

If the clues point clearly to one particular unlawful reason, then it is usually best to pursue the remedies under the law that makes that reason unlawful. Other considerations can include:

Whether you have missed time limits to enforce some rights,  whether the enforcement agency has a reputation of being effective or not, the remedies that are available, and the familiarity you or your attorney have with each process.

11. Where can I find more information?

Government Accountability Project
National Whistleblowers Center
Project on Government Oversight

Unfortunately, many people face job discrimination. According to the Equal Employment Opportunity Commission (EEOC) some of the most prevalent discrimination claims are:

Disability

This form of discrimination can take many forms. Disability discrimination consist of remarks about a disability made by another employee, this includes managers and executives, accompanied by a type of adverse employment action or choice. An action may include failure to promote, less pleasing employment conditions, disciplinary proceedings, or termination of employment. It may also include situations where the employee is able to perform the essential functions of the job with reasonable accommodations, but the employer refuses to accommodate the disability.

1. What are some examples of disability discrimination?

Disability discrimination can occur in many ways. It can be direct, and obvious, or indirect, and not so obvious. Below are examples of both direct and indirect discrimination.

Direct: A restaurant allows a family with a child who has cerebral palsy to eat in their outdoor seating area but not in their family room. The family with the disabled child is not given the same choices that other families have.

Indirect: A local authority, such as a Health Department, produces an information leaflet about its services for residents. In order to save money it does not produce an easy-to-read version of the leaflet. This would make it more difficult for someone with a learning disability to access the information and services which could amount to indirect discrimination.

2. Which federal law(s) cover people with disabilities?

The Americans with Disabilities Amendments Act of 2010 (42 U.S.C. 12101 et seq.)

The ADA makes it illegal for private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment. Sections of the ADA not relating to employment address discrimination by governmental agencies and in public accommodations.

For more detailed information about the ADA, visit the U.S. Equal Employment Opportunity Commissions website on Disability Discrimination.

The Rehabilitation Act of 1973 (29 U.S.C. 701)

The Rehabilitation Act makes it illegal to discriminate on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in the Americans with Disabilities Act.

These are the primary federal laws that apply to workplace discrimination, although there are many other federal laws that make it illegal to discriminate on the basis of disability, for example: the Air Carrier Access Act of 1986 prevents discrimination in provision of air transportation, the Architectural Barriers Act of 1968 requires that buildings and facilities, designed, constructed, altered, or leased with certain federal funds after September 1969 must be accessible to and useable by handicapped persons, the Fair Housing Act prohibits discrimination in the sale, rental, and financing of housing based on disability, along with other minorities, and the Individuals with Disabilities Education Act ensures that students with disabilities are protected, and that all children with disabilities have available to them free appropriate public education.

The laws of most states also make it illegal to discriminate on the basis of disability, and some state laws have different standards than the ADA for determining who state disability discrimination law covers. While the discussion below will focus on the ADA Amendments Act, you should check the law in your state and/or consult with a local attorney to see whether your state law provides additional protection.

3. Who is considered disabled under the law?

According to the ADA Amendments Act, the term “disability” means, with respect to an individual, one who:

• Has a physical or mental impairment that substantially limits one or more major life activities of such an individual;
• A record of such an impairment;
• Being regarded as having such an impairment

The ADA Amendments Act changes the way these criteria should be interpreted. (For more information, see question 4.)

4. How will the disability definition be interpreted under the law?

The ADA Amendments Act emphasizes that the definition of disability “should be interpreted broadly.”

The Act directs the EEOC to revise the portion of its regulation defining the term “substantially limits.” The Act also expands the definition of “major life activities” to include:

• Most activities previously recognized under the law, such as walking and seeing, as well as new ones, such a reading, bending and communicating.
• Major bodily functions, such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, respiratory, neurological, brain, circulatory, endocrine and reproductive functions.”

In determining whether one has a disability, mitigating measures (if you are able to use medication to eliminate the limitations of your medical condition, or successfully use a prosthetic, hearing aid, glasses, or other assistive device) other than “ordinary eyeglasses or contact lenses” will not be considered.

Even though an impairment may be intermittent or in remission, it will be classified as a disability if, when active, it would substantially limit a major life activity.

If you are subjected to an action prohibited by the ADA (such as failure to hire) because of an impairment, which is either real or perceived, you will meet the “regarded as” definition of disability, unless the impairment is minor, and in transition.

Individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation under The Act.

5. Which employers are covered by the law?

Job discrimination against people with disabilities is illegal if practiced by:

• private employers
• state and local governments
• employment agencies
• labor organizations or
• labor-management committees.

The ADA applies to all employers, including state and local government employers, with 15 or more employees. Many states also have laws that make it illegal to discriminate on the basis of disability. For more information, please see our page on the minimum number of employees needed to file a claim under your state law. Click here for more information on coverage from the EEOC.

6. Can I be asked about my disability in a job interview?

If you are applying for a job, an employer cannot ask you if you are disabled or ask about the nature or severity of your disability. However, an employer can ask if you can perform the duties of the job with or without reasonable accommodation; an example of this is: this job requires you to stand outside for long hours, or, must be able to lift 20 pounds. An employer can also ask you to describe or to demonstrate how, with or without reasonable accommodation; you will perform the duties of the job.

Federal contractors and subcontractors who are covered by the affirmative action requirements of the Rehabilitation Act may invite individuals with disabilities to identify themselves on a job application form or in some other pre-employment inquiry. Employers requesting this information must follow certain legal requirements regarding the way this information is requested and used. The information must be maintained confidentially and separately from regular personnel records.

A pre-employment inquiry about a disability is also allowed if required by another Federal law or regulation such as those that cover disabled veterans and veterans of the Vietnam era. Pre-employment inquiries about disabilities may be necessary under such laws to identify applicants or clients with disabilities in order to provide them with required special services.

7. Can I be forced to take a physical or medical exam?

You cannot be required by an employer to take a medical examination before you are offered a job. Following a job offer, however, an employer can condition the job offer on your passing a required medical examination, but only if all entering employees for that job category have to take the examination and the exam is job-related and consistent with the employer’s business needs. (You cannot be singled out for an exam merely because you have, or your employer believes you have, a disability.) However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer’s business. The employer cannot refuse to hire you because of your disability if you can perform the essential functions of the job with an accommodation.

Once you have been hired and started work, your employer cannot require that you take a medical examination or ask questions about your disability unless they are related to your job and necessary for the conduct of your employer’s business. However, your employer may conduct voluntary medical examinations that are part of an employee health program and may provide medical information required by State workers’ compensation laws to the agencies that administer such laws.

The results of all medical examinations must be kept confidential and maintained in separate medical files.

8. What is a “qualified person with a disability?”

If you have a disability, you must also be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation, in order to be protected from job discrimination by the ADA. This means two things:

• You must satisfy the employer’s requirements for the job, such as education, employment experience, skills or licenses.
• You also must be able to perform the essential functions of the job with or without reasonable accommodation.

9. What is an “essential job function?”

“Essential functions” are the fundamental job duties that you must be able to perform on your own or with the help of a reasonable accommodation. An employer can refuse to hire you if you cannot perform these duties on your own or with the help of a reasonable accommodation. An employer cannot refuse to hire you, however, because your disability prevents you from performing duties that are not essential to the job. An employer is not required to reallocate essential functions of a job as a reasonable accommodation.

For example: a grocery store bagger develops a disability that makes her unable to lift any item weighing more than five pounds. Since a bagger’s main job duty is placing items into bags and handing filled bags to customers or placing them in grocery carts, the store does not have to remove its fifteen-pound lifting requirement as an accommodation, since being able to lift bags of groceries is an essential function of a bagger’s job.

11. What is an “impairment substantially limiting a major life activity?”

An individual meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Major life activities generally consist of but are not limited to: caring for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Under the ADAAA, major life activities was expanded to include major bodily functions. This list includes, but is not limited to: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, and reproductive functions.

12. What is a “reasonable accommodation?”

If you are able to perform all of the essential functions of a job, except for those your disability prevents you from performing, the ADA and many state disability laws require that your employer provide you with a “reasonable accommodation,” which is an adjustment or modification provided by an employer to allow you to enjoy equal employment opportunities as individuals without disabilities.

Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. Reasonable accommodations may include:

• Making existing facilities used by employees readily accessible to, and usable by, persons with disabilities.
• Job restructuring, modifying work schedules, reassignment to vacant position;
• Acquiring or modifying equipment or devices, adjusting modifying examinations, training materials, or policies and providing qualified readers or interpreters.

Some examples of reasonable accommodations specific to particular disabilities are:

• A deaf applicant may need a sign language interpreter during the job interview.
• An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.
• A blind employee may need brail reading material.

An employer is not required to violate a seniority system that is a product of a collective bargaining agreement to accommodate a disabled employee. Nor is an employer required to lower quality or production standards to make an accommodation, or excuse violations of conduct rules necessary for the operation of an employer’s business. Nor is an employer obligated to provide personal use items such as glasses, hearing aids, or prostheses.

13. What if my employer thinks the accommodation would be too expensive?

An employer is not required to make an accommodation for a known disability of a qualified applicant or employee if it would impose an “undue hardship” on the employer’s business. Undue hardship is defined as an accommodation requiring “significant difficulty or expense.”

Some of the factors that will be taken into account when analyzing whether a particular accommodation presents an undue hardship include:

• the nature and cost of the accommodation
• the financial resources of the employer (a large employer may be expected to accept greater expenses than a small family business)
• the nature of the business (including size, composition and structure of the workforce), and
• any accommodation costs already incurred in the workplace.

It is not easy for employers to prove that an accommodation is an undue hardship, as financial difficulty alone is not usually sufficient. Other sources of money for making accommodations may be available, including tax credits or deductions and vocational rehabilitation funds. The disabled employee’s willingness to pay for all or part of the costs also can be considered, although the disabled employee cannot be required to pay the costs of accommodation.

14. When is my employer required to give me an accommodation?

An employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one.

A request can be a statement in plain English; that you need an adjustment or change in the application process or at work for a reason related to a medical condition. The request does not have to include the terms “ADA” or “reasonable accommodation.” Also, the request does not have to be in writing, although your employer is then allowed to ask for something in writing to document the request.

A family member, friend, health professional, rehabilitation counselor, labor union, or other representative also may request a reasonable accommodation on your behalf. For example, a doctor’s note indicating that an employee can work “with restrictions” is a request for a reasonable accommodation.

Once you have requested a reasonable accommodation, you and your employer should discuss your needs and identify the appropriate reasonable accommodation. The ADA refers to this as the “interactive process,” a formal way of saying that you and your employer should talk about the request for a reasonable accommodation, especially where your need for the accommodation may not be obvious. A conversation also helps where the employer may have questions about what type of accommodation might best help you apply for a job or perform the essential functions of a job. If you request, but cannot suggest, an appropriate accommodation, you and your employer should work together to identify one. There are also many public and private resources that can provide assistance without cost.

Where more than one accommodation would work, your employer is allowed to choose the one that is less costly or that is easier to provide. Your employer may also ask you for additional documentation describing your disability and why the requested accommodation is needed, especially when your disability or need for accommodation are not obvious.

The documentation required should be limited to a doctor’s note or other medical documents showing that you have a disability and need accommodation. Your employer should not require you to produce your entire medical or mental health history in order to receive accommodation for a specific disability.

15. What if I need an accommodation to apply for a job?

Applicants, as well as employees, are entitled to reasonable accommodation. If that were not the law, only those individuals who became disabled after they were already employed would be protected against disability discrimination.

For example, an employer may be required to provide a sign language interpreter during a job interview for an applicant who is deaf or hearing impaired, unless to do so would impose an undue hardship.

If you think you will need a reasonable accommodation in order to participate in the application process, you should inform the employer that an accommodation will be needed, so that the employer is aware of your need for accommodation and so you will be protected by the ADA if you are not accommodated in the application process.

16. Is my employer required to modify the job facilities for me?

Yes, unless that modification would be an undue hardship for the employer. The requirement to provide reasonable accommodation covers all services, programs, and non-work facilities provided by the employer.

If making an existing facility accessible would be an undue hardship, the employer must provide a comparable facility that will enable a person with a disability to enjoy benefits and privileges of employment similar to those enjoyed by other employees, unless to do so would be an undue hardship.

For example, if an employee lounge is located in a place inaccessible to a person using a wheelchair, the employer might choose to modify or relocate the lounge, or if doing so is an undue hardship, then the employer might choose to provide comparable facilities in a location that would enable the individual to take a break with co-workers.

17. Can I be charged or paid a lower salary to cover the cost of the accommodation?

No. An employer cannot make up the cost of providing a reasonable accommodation by lowering your salary or paying you less than other employees in similar positions. If the cost of providing the needed accommodation would be an undue hardship for your employer, however, you must be given the choice of providing the accommodation yourself or paying for the portion of the accommodation that causes the undue hardship.

18. What if I’m not disabled, but am treated like I have a disability?

The ADA also protects a person who is regarded (or treated) by an employer as if he or she has a substantially limiting impairment, even if he or she has no impairment or has only a minor impairment, particularly if the employer acts based on myths, fears, or stereotypes about a person’s medical condition.

For example, an employer may not deny a job to someone who has a history of cancer because of a fear that the condition will recur and cause the employee to miss a lot of work.

19. What if I’m not disabled myself, but care for or live with a person with a disability?

You are protected by the ADA if you are discriminated against because of your relationship or association with an individual with a known disability. The reason the ADA prohibits discrimination based on relationship or association is to protect you from job-related discrimination based on unfounded assumptions that your relationship to a person with a disability would affect your job performance, and from actions caused by bias or misinformation concerning certain disabilities.

For example, if you have a disabled spouse and apply for a job, the ADA would prevent you from being denied employment because of an employer’s unfounded assumption that you would use excessive leave to care for your spouse. The ADA also would protect you if you do volunteer work for people with AIDS, and as a result had a discriminatory employment action taken against you that was motivated by that relationship or association.

20. What if my employer does not know I am disabled? Am I protected?

An employer is required to accommodate only known disabilities. Therefore, it generally is your responsibility as a disabled employee to inform your employer that an accommodation is needed.

If you think you will need a reasonable accommodation in order to participate in the application process or to perform essential job functions, you should inform the employer that an accommodation will be needed, so that you are protected by the ADA if you are not accommodated.

Your employer is under an obligation to keep information about your disability that you disclose confidential. The ADA requires that the results of all medical examinations must be kept confidential and maintained in separate medical files.

21. Can I be prevented from working a certain job for health and safety reasons?

The ADA allows an employer to refuse to hire individuals who pose a “direct threat” to the health or safety of themselves or others. A direct threat means a “significant risk of substantial harm.” Employers have legitimate concerns about maintaining a safe workplace for all employees and members of the public. In some instances, the nature of a particular person’s disability may cause an unacceptable risk of harm from the employer’s perspective.

The determination that there is a direct threat must be based on objective evidence and reasonable medical judgment regarding an individual’s present ability to perform essential functions of a job. It cannot be based on unfounded fears or generalizations. An employer cannot refuse to hire you because of a slightly increased risk or because of fears that there might be a significant risk sometime in the future. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.

22. Can my employer refuse to pay medical insurance coverage for my disability?

The ADA requires that an employer provide employees with disabilities equal access to whatever health insurance coverage is offered to other employees. Your employer cannot deny you coverage that is made available to other employees or impose additional costs or restrictions on you because you are disabled. Depending on the level of coverage, however, the offered coverage may or may not fully cover the medical needs you have as a result of your disability.

The ADA also does not affect clauses contained in health insurance policies about pre-existing condition even though such clauses may adversely affect employees with disabilities more than other employees.

23. Are substance abuse and alcoholism considered disabilities?

Alcoholism, and use of illicit drugs is not covered under the ADA. Anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use.

The ADA does not prevent employers from testing applicants or employees for current illegal drug use, nor from making employment decisions based on testing results that are verifiable. A test for the illegal use of drugs is not considered a medical examination under the ADA. Therefore, it is not a prohibited pre-employment medical examination and you will not have to show that the administration of the test is job-related and consistent with business necessity. The ADA does not encourage, authorize or prohibit drug tests.

A worker who is an alcoholic is a person with a disability and is protected by the ADA if he or she is qualified to perform the essential functions of the job. However, the ADA still allows employers to discipline, discharge or deny employment to an alcoholic whose use of alcohol negatively affects job performance or conduct. An employer also may ban the use of alcohol in the workplace and can require that employees not be under the influence of alcohol, as long as that rule is uniformly applied.

There may be times, however, when an employer must accommodate an employee with alcoholism. For example, an employer may have to modify a rule prohibiting personal phone calls at work for an employee with alcoholism who periodically has to contact his AA sponsor, if the employee has a need to do so during work hours.

24. Can my employer ask me about my disability to determine my needs during an emergency evacuation of the workplace?

Yes. Some employees may need assistance in the event of an emergency evacuation because of medical conditions that are not visually apparent. Other employees may have obvious disabilities or medical conditions but may not need assistance. Employers, therefore, are allowed to ask employees to self-identify if they will require assistance because of a disability or medical condition.

Employers can ask about your medical conditions in three ways:

• After making a job offer, but before employment begins, an employer may ask all individuals whether they will need assistance during an emergency.
• An employer also may periodically survey all of its current employees to determine whether they will require assistance in an emergency, as long as the employer makes it clear that self-identification is voluntary and explains the purpose for requesting the information.
• Finally, whether an employer periodically surveys all employees or not, it may ask employees with known disabilities if they will require assistance in the event of an emergency. An employer should not assume, however, that everyone with an obvious disability will need assistance during an evacuation. For example, many individuals who are blind may prefer to walk down stairs unassisted. People with disabilities are generally in the best position to assess their particular needs.

An employer should inform all individuals who are asked about their need for emergency assistance that the information they provide will be kept confidential and shared only with those individuals who have responsibilities under the company’s emergency evacuation plan.

For further information, see Obtaining and Using Employee Medical Information as Part of Emergency Evacuation Procedures.

25. Does my employer have to favor the applications of persons with disabilities?

The ADA makes it illegal for a private employer to discriminate against a qualified individual with a disability only on the basis of disability. Therefore, an employer is free to select the most qualified applicant available and to make employment decisions based on reasons unrelated to the existence or consequence of a disability.

For example, if two people apply for a typist position, one is a person with a disability who accurately types 50 words per minute, the other a person without a disability who accurately types 75 words per minute, the employer may hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job.

26. Can an employer establish specific attendance and leave policies?

An employer can establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave. An employer also may be required to make adjustments in leave policy as a reasonable accommodation for a worker with a disability. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.

A uniformly applied leave policy does not violate the ADA because it has a more severe effect on an individual because of his or her disability. However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it, unless it would impose an undue hardship. For more information, see our page on disability leave.

A disabled employee may also be eligible for leave under the Family & Medical Leave Act. For more information, see our page on family/medical leave.

27. What are my rights after becoming disabled or injured on the job?

Work-related injuries must be evaluated on a case-by-case basis to determine if a worker is protected by the ADA. Only injured workers who meet the ADA’s definition of an “individual with a disability” will be considered disabled under the law, regardless of whether they satisfy criteria for receiving benefits under workers’ compensation or other disability laws. An employee also must continue to be “qualified” (with or without reasonable accommodation) to be protected by the ADA.

Work-related injuries do not always cause physical or mental impairments severe enough to “substantially limit” a major life activity. Also, many on-the-job injuries cause temporary impairments that heal within a short period of time with little or no long-term or permanent impact. Therefore, many injured workers who qualify for benefits under workers’ compensation or other disability benefits laws may not be protected by the ADA.

28. How does the ADA affect workers’ compensation programs?

An employer may not inquire into an applicant’s workers’ compensation history before making a conditional offer of employment. After making a conditional job offer, an employer may inquire about a person’s workers’ compensation history if a medical inquiry or examination is required of all applicants in the same job category. However, even after a conditional offer has been made, an employer cannot require a potential employee to have a medical examination because a response to a medical inquiry (as opposed to results from a medical examination) shows a previous on-the-job injury unless all applicants in the same job category are required to have an examination.

Also, an employer may not base an employment decision on the speculation that an applicant may cause increased workers’ compensation costs in the future.

However, an employer may refuse to hire, or may discharge an individual who is not currently able to perform a job without posing a significant risk of substantial harm to the health or safety of the individual or others, if the risk cannot be eliminated or reduced by reasonable accommodation.

An employer may also refuse to hire, or may fire, a person who knowingly provides a false answer to a legal inquiry about his or her condition or worker’s compensation history made after the offer of employment. It does not violate ADA confidentiality requirements for an employer to submit medical information and records concerning employees and applicants (obtained after a conditional job offer) to state workers’ compensation offices and “second injury” funds.

29. Who enforces the law?

The Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for investigating charges of job discrimination related to disability discrimination in workplaces of 15 or more employees. Most states have their own agencies that enforce state laws against discrimination (see below).

30. What remedies are available to me?

Victims of disability discrimination can recover remedies to include:

• back pay
• hiring
• reasonable accommodation
• promotion
• reinstatement
• front pay
• compensatory damages (emotional pain and suffering)
• punitive damages (damages to punish the employer)
• other actions that will make an individual “whole” (in the condition she or he would have been but for the discrimination)

Remedies also may include payment of:

• attorneys’ fees
• expert witness fees
• court costs.

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case.

Race

Racial discrimination occurs when demotion, termination, denial of fair salary, equal treatment, employee benefits, lack of training and harassment is caused because of one’s racial background. This can occur in seemingly innocuous statements or microaggressions or being singled out in unjust criticism that can be interpreted to have racial overtones. It is important to document these moments if you see a pattern.

Race discrimination can also occur if an individual is treated differently based upon their association with members of another race. Such discrimination can occur directly, such as when an employer intentionally targets a member of a racial group or indirectly, for example when a seemingly neutral job policy tends to exclude minorities for a reason that is not job related.

If you have experienced any of the following situations, you may be a victim of race discrimination:

• Hiring/Firing/Promotions: You apply for a job for which you have experience and excellent qualifications, but you are not hired because some of the company’s long-time clients are not comfortable dealing with African-Americans. You are told that you are being laid off due to company cutbacks and reorganization, while white employees with the same job and with less seniority than you keep their jobs. You have worked for your company for several years, receiving exemplary reviews and an employee-of-the-year award, yet each of the five times you have applied for promotions, the positions you applied for are instead filled by less qualified people of a different race.
• Pay: You worked your way up from the position of executive assistant to project manager. A white project manager with similar training and work experience was recently hired, and you find out that he will be paid more than you. You are a top salesperson for your company, but are moved to a less desirable territory because it is a minority neighborhood, while another white employee with much lower sales is given your territory and client base, enabling him to make much more in commissions than you will make for several years.
• Job Classification: You work at a company that has an eight-tier job classification system; your responsibilities have increased over time, but your job classification and pay has remained stagnant; white colleagues have their job classification and pay adjusted to reflect their increased responsibilities.
• Harassment: One of your coworkers thinks it’s “funny” to use the “n word” in conversation and to tell jokes insulting blacks, Latinos, Asians, and other minorities; these comments make you very uncomfortable, and you’ve asked him to stop, but he tells you that you need to get a sense of humor; the boss tells you to ignore him, but doesn’t talk to or discipline your coworker for his harassing behavior.

1. Which federal law covers race discrimination?

Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination in employment based on race. Title VII makes it illegal for an employer to discriminate against individuals because of their race in hiring, firing, discipline, distribution of benefits, promotion, compensation, job training, or any other term, condition, or privilege of employment.

2. Who is protected under the law?

Title VII covers all private employers, state and local governments, and educational institutions that employ 15 or more individuals. Title VII also covers private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

Many states also make it illegal to discriminate on the basis of race. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.

Anti-discrimination protections apply to job applicants as well as current workers. If you are a current employee and are fired, not promoted, or paid at a lower rate, you are protected under the law. If you are not hired because of your race, you are also protected.

3. Can I be discriminated against because my spouse and friends are of different races?

No. The law prohibits discrimination based on:

• Your marriage to or association with someone of a different race;
• Membership in or association with ethnic-based organizations or groups;
• Attendance or participation in schools, places of worship, or other cultural practices generally associated with certain minority groups.

Protected practices or characteristics can include cultural dress, manner or speech, but are only protected as long as the practice or characteristic does not materially interfere with the ability to perform job duties.

4. Can I be discriminated against because of the color of my skin?

No. Race discrimination includes discrimination on the basis of shade of skin color. For example, it would be unlawful for an employer to discriminate against dark- or light-skinned African-Americans. Race discrimination includes discrimination on the basis of physical characteristics associated with a particular race, such as hair texture or facial features, this is even though not all members of the same race share the same characteristics and even when the victim and the perpetrator of the discrimination are of the same race.

5. Can I be discriminated against by someone of the same race as me?

Yes, discrimination based on race by someone of the same race is still illegal. There is no requirement under the law that the victim and the perpetrator be of different races.

6. Are racial jokes or slurs against the law?

It depends. Racial jokes or slurs may be considered a form of harassment, which courts have determined is a form of discrimination under the law. However, federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. The conduct must be sufficiently frequent or severe to create a intimidating, hostile, or offensive working environment, or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion. For more information, see our page on racial harassment.

7. Can I be assigned to a particular kind of job, or to a certain neighborhood or territory because of my race?

It is against the law to limit, segregate, or classify employees or applicants for employment based on race in any way that could deprive them of employment opportunities or otherwise adversely affect their employment status.

It is a violation of Title VII if employees of a certain race or races are segregated by being physically isolated from other employees or from customer contact. Title VII also prohibits assigning primarily minorities to predominantly minority establishments or geographic areas. It is illegal to exclude minorities from certain positions or to group or categorize employees or jobs so that minority workers generally hold certain jobs, or because of a belief that they should do so.

Consequently, an assignment or placement selected because of your race that segregates you or negatively affects your pay, status in the company, or ability to advance would be against the law. Yet an assignment made for legitimate nondiscriminatory reasons that do not negatively affect or segregate you would not be illegal.

8. Can a job application ask me to identify my race?

Requesting pre-employment information that discloses or tends to disclose an applicant’s race suggests that race will be unlawfully used as a basis for hiring. It is presumed that when an employer asks for such pre-employment information that it will be used to make hiring decisions. Therefore, if members of minority groups are excluded from employment, asking for such information in the job application process is likely to be evidence of discrimination.

However, employers may have a legitimate need for information about their employees’ or applicants’ race for affirmative action purposes and/or to track applicant flow. One way to obtain racial information and simultaneously guard against discriminatory selection is for employers to use “tear-off sheets” for the identification of an applicant’s race. After the applicant completes the application and the tear-off portion, the employer separates the tear-off sheet from the application and does not use it in the selection process.

9. Can employers use testing or implement a policy that affects one race more than another?

Not if it is not job-related. Title VII makes illegal both intentional discrimination as well as job policies that appeal neutral but in fact are not job-related and disproportionately harm workers of certain races. An example of an apparently neutral policy with a discriminatory effect might be a policy that requires a high school degree for all employees, which may disproportionately exclude African-Americans and Latinos. If a high school degree is not necessary to perform every position, such as those primarily involving physical labor, then this policy might be illegal.

Similarly, a policy that excludes individuals with sickle cell anemia tends to discriminate against African-American individuals and would be illegal unless proven to have a legitimate business purpose.

10. Is race ever a qualification for a certain job?

Yes, in very limited circumstances. Title VII makes an exception when age is an essential part of a particular job – also known by the legal term “bona fide occupational qualification” or BFOQ. For example, if a company hires an actor to play the role of an African-American father, being African-American is a necessary part of the job, or a BFOQ. However, an employer who claims a BFOQ exists for a particular job must be able to prove a person of a certain race is required because a worker’s ability to do the job is actually diminished if he or she is not a member of that race.

11. What about policies that affect one race more than another, do they constitute discrimination?

Discrimination on the basis of a natural physical characteristic associated with race, such as skin color, hair texture, or certain facial features is against the law, even though not all members of the race share the same characteristic. Title VII also makes it illegal to discriminate on the basis of a condition that affects a certain race, or tends to affect a certain race, unless the practice is job-related and necessary for business. As previously mentioned, since sickle cell anemia predominantly occurs among African-Americans, a policy that excludes individuals with sickle cell anemia must be job-related and necessary for business. Similarly, a no-beard employment policy may discriminate against African-American men who have a predisposition to pseudofolliculitis barbae (severe shaving bumps) and is illegal unless the policy is job-related and a business necessity.

If there are height and weight requirements, they must be necessary for the safe and efficient performance of job-related tasks, because such requirements may exclude or limit women and members of some racial and ethnic groups. An employer, therefore, must show that the requirement is necessary for the safe and efficient performance of job-related tasks. If there is a less restrictive way to accomplish the same goal other than a minimum height requirement, employers are required to use that alternative to avoid liability for discrimination.

12. My company has an affirmative action plan. How can this affect me?

Affirmative action goals and timetables are targets for equality and a level playing field. Like goals for profits or productivity, they mark and measure progress, but do not carry legal penalties. Quotas are illegal unless they are ordered by the court as a remedy for discrimination. Your company’s affirmative action plan may be voluntary or may be required by law if your company has contracts with federal, state or local governments or has a past history of discrimination.

Much of the opposition to affirmative action is based on what are called “reverse discrimination” and “unwarranted preferences.” However, less than 2 percent of the 91,000 employment discrimination cases pending before the Equal Employment Opportunities Commission are reverse discrimination cases. Under the law as written and interpreted by the courts, anyone benefiting from affirmative action must have relevant and valid job or educational qualifications.

If your employer has an affirmative action plan, it may help eliminate some of the barriers to advancement that racial minorities have faced historically and perhaps even working for your employer. You may wish to consult with your company’s human resource department or your personnel handbook to learn more about how the plan may benefit you and other employees who are racial minorities.

13. Who enforces the law?

The Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for investigating charges of job discrimination relating to race discrimination in workplaces of 15 or more employees.

14. What are the remedies available to me?

Victims of race discrimination can recover remedies that include:

• back pay
• hiring
• promotion
• reinstatement
• front pay
• compensatory damages (emotional pain and suffering)
• punitive damages (damages to punish the employer)
• other actions that will make an individual “whole” (in the condition she or he would have been in if not the discrimination had never occurred).

Remedies also may include payment of:

• attorneys’ fees
• expert witness fees
• court costs

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free from discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions with regard to the person(s) responsible for the discrimination, take steps to minimize the chance it will happen again, as well as stop the specific discriminatory practices in the case. Your state law may allow for greater or different remedies than federal law. For more information, see question 16 below.

15. More Information about Race Discrimination:

EEOC Facts About Race/Color Discrimination
AFL-CIO – Discrimination: Race or Ethnicity
Leadership Conference for Civil Rights

Gender

Gender or sex discrimination happens when a superior treats a subordinate or prospective employee differently based solely on the individuals assumed gender identity. Examples of this are sexual harassment, unequal pay, the proverbial glass ceiling preventing women from reaching higher positions within an organization, pregnancy, marital, and parental.

1. Which federal law covers sex or gender discrimination?

Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon sex. This law makes it illegal for an employer to discriminate against individuals because of their sex in hiring, firing, and other terms and conditions of employment, such as promotions, raises, and other job opportunities.

2. Who is covered by the law?

Title VII covers all private employers, state and local governments, and educational institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

Many states also make it illegal to discriminate on the basis of sex. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.

The law’s protections apply to both current workers and job applicants. If you are a current employee and are fired, not promoted, or not accommodated due to your sex or gender, you are protected. If you are not hired due to your sex or gender, you are also protected.

3. Can an employer pay me less because I’m a woman? Can I be paid less because I’m a man?

No. Both Title VII and the Equal Pay Act (EPA) make it illegal to discriminate on the basis of sex in the payment of wages or benefits. The laws against discrimination in compensation cover all forms of compensation, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits.

The EPA requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. It is the content of the job, not job titles, that determines whether jobs are substantially equal. Unlike the EPA, Title VII does not require that the job of the person claiming discrimination be substantially equal to that of a higher paid person of the other sex, nor does Title VII require the person claiming discrimination to work in the same establishment as the higher paid person. However, Title VII, unlike the EPA, requires proof of intent to discriminate on the basis of sex, while the EPA does not require proof of discriminatory intent.

Under the EPA, employers are prohibited from paying unequal wages to men and women who perform jobs that require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment.

The law defines these terms as follows:

• skill: measured by factors such as the experience, ability, education, and training required to perform the job. The key issue is what skills are required for the job, not what skills the individual employees may have.
• effort: the amount of physical or mental exertion needed to perform the job.
• responsibility: the degree of accountability required in performing the job.
• working conditions: encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation, and (2) hazards.

Note that:

• Employers may not reduce wages of either sex to equalize pay between men and women.
• A violation of the EPA may occur where a different wage is or was paid to a person who worked in the same job before or after an employee of the opposite sex.

While there are some differences between Title VII and the Equal Pay Act, the federal laws are enforced by the same administrative agency, the Equal Employment Opportunity Commission (EEOC).

4. Is it illegal to give different benefits to male and female employees?

Yes. As discussed above, even though differences between the sexes may result in different benefit costs to an employer, it is against the law for an employer to discriminate between men and women with regard to benefits.

Employers are also not allowed to condition benefits available to employees and their spouses and families on whether the employee is the “head of the household’” or “principal wage earner” in the family unit, since that status bears no relationship to job performance and discriminatorily affects the rights of women employees.

An employer cannot make benefits available:

• for the wives and families of male employees where the same benefits are not made available for the husbands and families of female employees;
• for the wives of male employees which are not made available for female employees; or
• for the husbands of female employees which are not made available for male employees.

It is also against the law for an employer to have a pension or retirement plan which establishes different optional or compulsory retirement ages based on sex, or which differentiates in benefits on the basis of sex.

5. Can an employer treat me differently because I can or have become pregnant?

No. Pregnancy discrimination, defined as discrimination on the basis of pregnancy, childbirth, and related conditions, is illegal under Title VII. In 1978, Congress passed the Pregnancy Discrimination Act (PDA) amending Title VII to clarify that discrimination based on pregnancy is a form of sex discrimination.

Under the law, pregnancy is considered a temporary disability, as are related medical conditions such as severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, and any other related medical condition. Title VII prohibits employers from treating pregnant women differently from other temporarily sick, injured or disabled employees. Employers must therefore give pregnant employees and temporarily physically disabled new mothers the same treatment and benefits that they give to employees with other temporary disabilities.

6. Can an employer treat me differently because I am unmarried or married?

Marital status discrimination is not prohibited by the federal laws generally applicable to private employment, which prohibit discrimination based on race and color, sex, religion, national origin, age and disability. However, several states have laws making it illegal to discriminate on the basis of marital status.

However, marital status discrimination and sex/gender discrimination can often coexist. If, for example, as a married woman you are rejected for a position involving frequent overnight trips with male coworkers because it is assumed your husband would be jealous, and the position is offered to a married man, the problem may be sex/gender discrimination instead of marital status discrimination. It is illegal for your employer to make assumptions based on gender stereotypes, even if those assumptions are motivated in part by your marital status.

7. Can an employer treat me differently because I have kids or have to care for a family member?

Parental status discrimination is not prohibited by the federal laws generally applicable to private employment, which prohibit discrimination based on race and color, sex, religion, national origin, age and disability. However, several states have laws making it illegal to discriminate on the basis of parental status.

However, parental status discrimination and sex/gender discrimination can often coexist. If a woman with young children, for example, is rejected for a position involving frequent travel and overtime work because it is assumed that she should or will want to spend time with your children, and the position is offered to a man with small children, the problem may be sex/gender discrimination instead of parental status discrimination. It is illegal for your employer to make assumptions based on gender stereotypes, even if those assumptions are motivated in part by your parental status. If you need leave from work to care for a newborn or a sick child or family member, you may also be protected by the Family & Medical Leave Act (FMLA).

8. What’s the difference between sex discrimination and sexual harassment?

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Although Title VII does not specifically use the words “sexual harassment,” courts have held that sexual harassment is a form of illegal sex discrimination. While the laws of some states specifically use the words “sexual harassment,” other states have followed the legal developments under federal law by determining that sexual harassment is a form of illegal sex discrimination.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are all types of sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment. For more information, see our page on sexual harassment.

As noted throughout this page, there are other forms of discrimination on the basis of sex that are not sexual harassment, such as discrimination in hiring, firing, promotions or benefits, pay discrimination, and gender stereotyping. In addition, it is possible to have illegal, sex-based harassment that is not of a sexual nature, sometimes called gender-based harassment. An example of this would be a supervisor who makes frequent derogatory comments about women and constantly refers to female employees as “girls” or “bitches.”

9. Is sex ever a qualification for a certain job?

Only in very limited situations. Title VII makes an exception to prohibiting sex discrimination when sex is an essential part of a particular job – also known by the legal term “bona fide occupational qualification” or BFOQ. For example, if a company needs an actor to play a female role or a “wet nurse,” then being a woman is a BFOQ for those positions.

The BFOQ exception as to sex has been interpreted very narrowly. Jobs that are considered “men’s jobs” or “women’s jobs” tend to unnecessarily deny employment opportunities to one sex or the other. Therefore, in the following situations, the BFOQ concept will not apply:

• The refusal to hire a woman because of her sex based on assumptions of the comparative employment characteristics of women in general. For example, the assumption that the turnover rate among women is higher than among men.
• The refusal to hire an individual based on stereotyped characterizations of the sexes. Individuals should be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group. Such stereotypes include, for example, that men are less capable of assembling intricate equipment, or that women are less capable of aggressive salesmanship.
• The refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers except where it is necessary for the purpose of authenticity or genuineness, such as hiring an actor or actress.

10. My company has an affirmative action plan. How can this affect me?

Affirmative action goals and timetables are targets for equality, parity and a level playing field. Like goals for profits or productivity, they mark and measure progress, but do not carry legal penalties. Quotas are illegal unless court-ordered to rectify discrimination. Your company’s affirmative action plan may be voluntary or may be required by law, if your company has contracts with federal, state or local governments.

The only Supreme Court case dealing with affirmative action for women recognized that evaluations that were supposedly merit-based may still reflect biases. The justices upheld an affirmative action plan that promoted a woman over a man with slightly higher score. The scores in question were based on interviews by a team of men, one of whom had called the woman “a rabble-rousing skirt.”

Much of the opposition to affirmative action is framed on the grounds of so-called “reverse discrimination and unwarranted preferences.” However, less than 2 percent of the 91,000 employment discrimination cases pending before the Equal Employment Opportunities Commission are reverse discrimination cases. Under the law as written in Executive Orders and interpreted by the courts, anyone benefiting from affirmative action must have relevant and valid job or educational qualifications.

If you are a woman at a company with an affirmative action plan, the plan may help eliminate some of the barriers to advancement women have historically faced and may have actually faced working for your employer. You may wish to consult with your company’s human resource department or your personnel handbook to learn more about how the plan may benefit you and other female employees.

11. Can my employer make me wear a dress or feminine clothing?

In an important U.S. Supreme Court case known as Price Waterhouse, the Court ruled that discrimination based on gender stereotyping is illegal sex discrimination under Title VII. In Price Waterhouse, the employer delayed a female employee’s promotion, in part based on evaluation comments describing her as “macho” and advising her to “take a course in charm school.” This woman was treated differently because of her gender, and because she seemed too “male.” Therefore, a female employee who is discriminated against because she wears pants or other gender-neutral clothing may be able to argue that she faced discrimination based on gender stereotypes or notions of appropriate dress for women.

Many employers have dress codes or otherwise expect their employees to dress according to the customs of the profession. Nothing in the Price Waterhouse case prevents an employer from asking that both male and female employees dress professionally. For example, an employer who requires its male employees to wear neckties at all times and its female employees to wear dresses or skirts would not likely be found to have violated the law, as courts have previously allowed employers to require employees to wear “suitable” business attire, even when the standards for what is considered suitable vary by sex. However, California has passed a specific law making it illegal for employers to prevent an employee from wearing pants because of sex.

An employer who requires employees to wear uniforms which are different for males and females is not engaging in discriminatory practices as long as the uniforms for both males and females are “suitable.” For example, women cannot be forced to wear short shirts or sexually revealing uniforms if men are not required to do so.

12. Are height, weight, or lifting requirements legal?

It depends. The general principle is that the requirements must be necessary for the safe and efficient performance of job-related tasks, because such requirements tend to disproportionately disadvantage women and members of some racial and ethnic groups.

Statistics show that minimum height requirements adversely affect women, as well as members of some racial and ethnic groups, because those groups on average are shorter than men or members of other races or national origins. An employer therefore must show that the requirement is necessary for the safe and efficient performance of job-related tasks in order to justify a minimum height requirement. If there is a less restrictive way to accomplish the same goal other than a minimum height requirement, employers will be required to use that alternative to avoid liability for discrimination.

For example, if a restaurant had a minimum height requirement for servers, presuming that shorter people generally cannot carry the required weight on a tray, a less restrictive alternative could be the requirement that all servers must be able to carry a set of minimum amounts of weight on a tray. Of course, even if a restaurant or any other business implemented a minimum strength or lifting requirement, that requirement also must not have a significant adverse effect on a protected class of people unless required for the safe and efficient performance of job-related tasks.

Weight requirements may be considered discriminatory because they often have an adverse impact on certain classes of people. In addition to problems with discrimination on the basis of sex or national origin, weight requirements also may constitute discrimination on the basis of disability. While weight-based disability claims have generally failed under the federal anti-discrimination law, the Americans with Disabilities Act, they have occasionally succeeded under the laws under certain states which either define disability differently or specifically make it illegal to discriminate on the basis of weight or personal appearance. It is also difficult to justify weight requirements as job-related if the purpose for the requirement is based primarily on physical appearance rather than the ability to perform a specific job-related task.

13. Is my employer required to allow me to breastfeed on the job?

Since an increasing number of new mothers return to work shortly or within three months after giving birth, breast-feeding has become a more common workplace issue. Employers now encounter such practical and legal issues as providing nursing women with an appropriate place to pump and store breast milk while at work; granting personal leave, modified schedules, or altered job duties to employees who breast-feed; and dealing with the social acceptability of breast-feeding or expressing milk within the workplace.

Federal law does not directly address the legality of breast-feeding on the job or explicitly protect nursing mothers. Some states, however, have passed laws either to make it illegal to discriminate against women who breast feed, or to specifically require that employers accommodate nursing mothers at work by providing adequate facilities for breast-feeding or expressing milk.

Even if there is not legal protection in your state affecting your employment, you may be able to encourage your employer to voluntarily cease discrimination against mothers who breast-feed and/or to educate others in your workplace to help improve your employment situation. According to the La Leche League, studies indicate that women who continue to breastfeed once returning to work miss less time from work because of baby-related illnesses, and have shorter absences when they do miss work, compared with women who do not breastfeed.

14. What does the term “glass ceiling” mean?

The term “glass ceiling” refers to an artificial barrier based on attitudes or bias that prevents qualified women from advancing into mid-level and senior-level management positions. In other words, women can advance so far, but hit an invisible barrier and can advance no farther. If you feel that you have been discriminated against based on a “glass ceiling” at your company, you may bring a claim under Title VII or state or local anti-discrimination laws.

Employers can and should take some or all of the following steps to eliminate the glass ceiling from their companies.

Hiring:

• Make sure that nondiscriminatory practices and requirements are used.
• Examine subjective or neutral criteria to ensure that they do not have a disproportionate impact on women.
• Set up workforce diversity programs to eliminate disadvantages and create a work environment where all employees feel comfortable.
• Make sure to hire employees based on true qualifications, not stereotypical ideas of a candidate’s qualifications.

Promotion:

• Monitor and ensure the development of female employees.
• Establish network and mentoring programs to help train and inform employees of opportunities for promotion.
• Require all job postings to state promotion criteria and affirm the employer’s commitment to diversity in management.

16. What is the difference between sex discrimination and gender identity discrimination?

The phrase “gender identity” refers to one’s self-identification as a man or a woman, as opposed to one’s anatomical sex at birth. Usually, one’s gender identity matches one’s anatomical sex: people born with the physical characteristics of males usually identify as men and those with physical characteristics of females identify as women. However, for some people, gender identity does not always align with one’s anatomical sex. Thus, for transsexual people, gender identity and anatomical sex are not in agreement.

Someone born male may have a strong internal self-image and self-identification as a woman, or someone born female may have a strong internal self-image and self-identification as a man. Some transsexual people seek medical treatment in the form of hormone therapy or surgery to correct their physical sex to agree with their gender identity. The term “transgender” is an umbrella term to describe anyone who in one or more ways does not conform to gendered stereotypes of gender identity and/or gender expression. Transgendered people can face serious discrimination in the workplace, generally because of a failure to conform with traditional sex stereotypes or gender roles. A good example of this is Caitlyn Jenner. Formerly known as Bruce Jenner, a retired Olympic Athlete, Caitlyn recently came out about her internal self-identification as a woman, which conflicted with her anatomical physical characteristics of a male.

Until very recently, federal and state courts have uniformly held that transsexual people are not protected under Title VII (of the Civil Rights Act), the law that makes sex discrimination illegal, on the grounds that Congress did not intend when passing the law for the term “sex” to protect transsexuals. However, in some more recent court decisions, courts have concluded that transsexual persons are protected from discrimination under Title VII and other sex discrimination statutes, based upon a more recent U.S. Supreme Court case that considers discrimination based on gender stereotyping to be sex discrimination which is illegal under Title VII. The law is still developing in this area, but based on current trends it is likely that more federal and state courts will find that discrimination on the basis of gender identity is a violation of currently existing sex discrimination laws.

17. Who enforces the law?

The Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for investigating charges of job discrimination related to sex discrimination in workplaces of 15 or more employees.

18. What are the remedies available to me?

Victims of sex discrimination can recover remedies to include:

• back pay
• hiring
• promotion
• reinstatement
• front pay
• compensatory damages (emotional pain and suffering)
• punitive damages (damages to punish the employer)
• other actions that will make an individual “whole” (in the condition he or she would have been but for the discrimination)

Remedies also may include payment of:

• attorneys’ fees
• expert witness fees
• court costs.

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case.

Age

Age discrimination arrives in multiple forms, these may include pressure for older employees to retire, promoting a younger employee over an older one, remarks mentioning the need for “fresh faces” or “youthful energy,” and refusal to hire a qualified person because of their age. There are laws in place to protect individuals against age discrimination, such as, the Age Discrimination in Employment Act (ADEA) and Older Workers Benefit Protection Act (OWPA) offers additional help in combating this inequity.

The above percentages equal more than 100% because some charges allege multiple forms of misconduct.

If you believe you have been a victim of job discrimination please do not hesitate to call us, we will walk you through the process and discuss your options moving forward.

1. Which federal law(s) cover older workers?

The Age Discrimination in Employment Act (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees.

While an older worker is also covered by several other workplace laws, these are the main federal laws which specifically protect older workers against discrimination based on age. Age discrimination may be accompanied by other forms of illegal discrimination as well, such as sex, race, or disability discrimination.

The laws of most states also make it illegal to discriminate on the basis of age.

2. Who is covered by age discrimination laws?

Workers who are 40 years of age or older are protected by the ADEA from employment discrimination based on age, if the employer regularly employs 20 or more employees.

Many states also make it illegal to discriminate on the basis of age; however, the minimum number of employees needed to bring a claim varies. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.

If two workers are both protected by the ADEA, an employer still may not use age as the basis for an employment decision. For example, a company can’t hire a 45-year-old over a 62-year-old simply because of age; if the company hired the younger employee due to her age, the 62-year-old employee would still have a claim.

The ADEA’s protections apply to both employees and job applicants. If you are a current employee over 40 and are fired or not promoted due to age, you are protected. If you are not hired due to age, you are also protected.

3. Does the ADEA protect me if I am discriminated against for being too young, even if I’m over 40?

No. The Supreme Court has established that an employer does not violate the ADEA by providing preferential treatment to older worker over younger ones, even where the younger workers are over the age of 40.

In the recent discrimination case, General Dynamics Land Systems, Inc v. Cline, No. 02-1080, 540 U.S. (2004) the company and its union negotiated a collective bargaining agreement that offered retirees health benefits only to those employees who were at least 50 years of age at the time of the agreement. A group of employees who were in their forties sued, claiming that the age requirement constituted illegal age discrimination in violation of the ADEA. The Supreme Court held that the ADEA only prohibits discrimination in favor of younger employees and does not address discrimination that favors older workers.

4. Which employers are covered by the law?

The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor unions, as well as to the federal government. The ADEA does not apply to elected officials or independent contractors. A number of court decisions have determined how to count the number of employees, so you may need to consult with an attorney to determine whether you are covered if your company employs approximately 20 employees.

If your workplace has fewer than 20 employees, you may still be protected under the laws of some states, even though your employer is not covered by the federal ADEA. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.

While the ADEA states that state employees are covered under its protections, recent U.S. Supreme Court decisions have limited the ability of state employees to sue their employers for money damages. If you are a state employee who has suffered age discrimination, you may need to discuss your individual situation with an attorney to figure out how best to proceed.

5. Are all older workers protected under the law?

No. The ADEA contains several exceptions:

• Executives or others “in high policy-making positions” can be required to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more.
• There are special exceptions for police and fire personnel, tenured university faculty and certain federal employees having to do with law enforcement and air traffic control. If these exceptions may apply to you, check with your personnel office or an attorney for details.
• The ADEA makes an exception when age is an essential part of a particular job — also known by the legal term “bona fide occupational qualification” or BFOQ. For example, if a company hires an actor to play the role of a 10-year old, or a teen’s clothing store needs models, the ability to appear youthful is a necessary part of the job, or a BFOQ.

6. What forms of discrimination or unfair treatment are illegal?

Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment — including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. As a result, the following practices are also illegal:

• An employer cannot retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.
• An employer may not include age preferences, limitations, or specifications in job notices or advertisements. As a narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a “bona fide occupational qualification” (BFOQ) reasonably necessary to the essence of the business (see question 6).
• Apprenticeship programs, including joint labor-management apprenticeship programs, generally may not discriminate on the basis of an individual’s age. Age limitations in apprenticeship programs are valid only if they fall within certain limited exceptions; consult with an attorney if this may affect you.
• Nothing in the ADEA specifically prevents an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.
• An employer cannot force you to retire at a certain age (except for a few narrow exceptions).

7. What are valid reasons for an employer to fire an older worker?

Under the ADEA, there has to be a valid reason — not related to age — for all employment decisions. Examples of valid reasons would be poor job performance by the employee or an employer’s economic trouble. In the case of layoffs, a company cannot use age as the basis for determining who is laid off and who is kept on. If most people who are laid off are 40 or older, and the majority of workers kept on are younger, there may be a basis for an ADEA complaint or lawsuit, especially if the employer has hired younger workers to take the places of workers over 40.

8. Is age ever a qualification for a certain job?

Yes, in very limited circumstances. The ADEA makes an exception when age is an essential part of a particular job — also known by the legal term “bona fide occupational qualification” or BFOQ. For example, if a company hires an actor to play the role of a 10-year old, or a teen’s clothing store needs models, the ability to appear youthful is a necessary part of the job, or a BFOQ. However, an employer who sets age limits on a particular job must be able to prove the limit is required because a worker’s ability to do the job after a certain age is actually diminished.

9. Can I be turned down for a job because I am “overqualified?”

It depends. The ADEA only prohibits discrimination based upon age. Although increased age most often correlates with more skills and experience in the workplace, an employer is not required to hire the most qualified or experienced person for a particular position if the company believes that person’s skills and experience are not the best match for the position. While some believe the explanation that a worker is “overqualified” is in essence a codeword for age discrimination, an employee would need to prove that the employer was motivated by the worker’s age, rather than a valid reason other than age.

However, it would be unlawful for the company to refuse to hire an experienced individual based on the assumption, solely based on the applicant’s age and lacking proof, that because they have more experience and/or skills than the position requires, the older employee might become bored and leave the job after only a short time. This is an example of the kinds of ageist stereotypes that can cause employers to discriminate against older workers.

10. Can I be fired or not hired because a younger employee costs the company less?

It depends. A valid reason other than age a company may use to justify the hiring of a younger worker is that the younger worker has less experience and a lower salary history and may be willing to work in the same job for a lower salary than the older worker. If the company bases the hiring decision on this reason, it is not illegal.

However, an older worker cannot be terminated on the basis that the company either currently or in the near future will be required to pay retirement benefits or more costly insurance benefits.

11. Can I be fired to stop my pension benefits from vesting or because my health insurance is more costly?

Firing workers in order to prevent them from earning their promised pensions is a technique some employers use to save money, but it is not legal. When the Older Workers Benefit Protection Act (OWBPA) was passed in 1990, it became clearly illegal for employers:

• to use an employee’s age as the basis for discrimination in benefits, and
• to target older workers for their staff cutting programs on the basis that benefits were too costly.

An employer cannot terminate an older worker on the basis that benefits are too costly. The company must follow the “equal benefits or equal cost” rule, by providing either equal benefits to older and younger workers, or paying the same benefit costs for all employees. The law only allows an employer to reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. In other words, if an employer pays only $100 in monthly premiums for each worker, this policy does not violate the ADEA even if it causes the older worker to make a higher employee contribution or to have lesser benefits than a younger worker.

An employer could not, however, refuse to pay for the health benefits of all workers over 55 on the grounds that “it costs too much,” if the employer pays the benefits of younger workers, or terminate all older workers so that the pool of employees for insurance purposes is less costly to insure.

12. Can an employer ask my age on a job application?

Nothing in the ADEA specifically prevents an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.

13. Can my employer make me retire?

As long as an employee is performing his or her job duties, generally the answer is no. If an employee can no longer perform his or her job duties, however, the employer is allowed to discharge that person.

The ADEA does have special exemptions for police and fire personnel, tenured university faculty and certain federal employees having to do with law enforcement and air traffic control. Executives or others “in high policy-making positions” can be required to retire at age 65 if they would receive annual retirement pension benefits worth $44,000 or more. If these exceptions may apply to you, check with your personnel office or an attorney for details.

However, in an effort to save the company money or to reduce the size of the workforce without resorting to involuntary layoffs, employers will often offer older employees early retirement. Offering voluntary early retirement does not violate the ADEA. In exchange for increased retirement benefits or severance, employers may ask employees to waive their rights under the ADEA. In order to be legally effective, the waiver you are asked to sign must follow certain requirements (see next section).

14. Can I be asked to sign something waiving my legal rights?

If asked by your employer, you may agree to waive your rights or claims under the ADEA. However, the ADEA, as amended by OWBPA, requires that a waiver be knowing and voluntary. The law sets out specific minimum standards that must be met in order for a waiver to be considered valid.

Among other requirements, a valid ADEA waiver:

• must be in writing and be understandable. This means that if you only had a conversation with your boss about what will happen when you leave the company, without anything being put in writing, you have not waived your right to pursue an ADEA claim.
• must specifically refer to ADEA rights or claims. Some companies use what is called a “general release,” where you agree to waive any and all claims against the company without the types of claims being specified. While this may be valid in other situations, it will not be legally sufficient to waive your ADEA claims.
• may not waive rights or claims that may arise in the future. This means you can agree to waive your right to sue for something that already happened, but you cannot waive your right to sue for something that hasn’t happened yet. For example, you can waive your right to file a claim over your termination, but if a few years later, your employer reduces your retirement benefits, you still may be able to file a claim over that.
• must be in exchange for valuable consideration. This is a legal term that means that you must receive something in exchange for signing that you would not have received otherwise, like a larger severance package or additional benefits. If you were entitled to certain benefits anyway, and did not receive anything additional in return for signing a waiver, it is not valid under the ADEA.
• must advise you in writing to consult an attorney before signing the waiver. While you do not have to actually consult with an attorney, and may choose not to, you must have been advised in writing to consult an attorney.
• must provide you with at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it. If you are presented with a waiver that you must sign immediately without the time to consider it properly and/or consult with an attorney, you cannot lose your rights under the ADEA. If you have signed something that you were only given a few days (or few hours) to consider, and you suspect that you are a victim of age discrimination, you should consult with an attorney to see whether your waiver is valid or not.

In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive. For example, if the offer is being made to a group or class of employees, your employer must inform you in writing how the class of employees is defined; the job titles and ages of all the individuals to whom the offer is being made; and the ages of all the employees in the same job classification or unit of the company to whom the offer is not being made. This allows you to have relevant information, that you might not know otherwise, about how the offer affects older workers compared to other workers in the company. You should consult with an attorney to determine whether the waiver you have signed has complied with the more extensive requirements.

The U.S. Supreme Court has also ruled that you may challenge the validity of the waiver without first giving back the money you received in exchange for the waiver. Prior to this decision, based on the law generally applicable to other kinds of contracts, if you had accepted the money, you were considered to have “ratified” the waiver, or to have consented to the company’s violation of the law in exchange for the money you received. This prevented older workers, who may have already spent all or part of the money before they learned that the waiver was illegal, from being able to challenge illegal waivers under the OWBPA.

15. Are governmental employees covered?

Under the ADEA’s language, which Congress passed in 1967, the law specifically protected state government employees as well as federal, private sector and union employees. This meant that, just like other workers, state employees could sue their employers — the states for which they worked — for age discrimination.

However, the U.S. Supreme Court in January of 2000 ruled that state employees were not allowed to use the ADEA’s provisions which allow employees who successfully sued their employers to recover money for back wages and other monetary losses. In the case of Kimel v. Florida Board of Regents, (No. 98-791, decided January 11, 2000), the Court held that Congress did not have the authority to authorize certain kinds of age discrimination lawsuits against states.

Thus, if you are a state employee, the ADEA no longer protects you from age discrimination. However, you may be protected by the laws of the very state that is discriminating against you. If you are a state employee who has suffered age discrimination, you may need to discuss your individual situation with an attorney to figure out how best to proceed.

16. Who enforces the law?

The Equal Employment Opportunity Commission (EEOC) is the federal governmental agency responsible for investigating charges of job discrimination related to an individual’s age in workplaces of 20 or more employees.

17. What do I have to prove to prevail on an ADEA claim?

Claims of unlawful discrimination on the basis of age can be difficult to prove. To be successful, the employee must show that some adverse action was taken on the basis of his or her age. Such an adverse action can be shown by direct evidence, but such evidence is not usually available. It is not enough for an employee to show that he or she was replaced by a younger person, although this fact can serve to strengthen a claim under the ADEA. An employer can only be held liable for age discrimination if the employee can show that an intentional action was taken against the employee because of the employees age.

18. What are the remedies available to me?

Victims of age discrimination can recover remedies to include:

• back pay,
• hiring,
• promotion,
• reinstatement,
• front pay,
• liquidated damages (up to twice the amount of back pay) may be awarded in the event of a “willful” violation, if the employee proves that employer knowingly violated the ADEA or acted in “reckless disregard” of its provisions,
• other actions that will make an individual “whole” (in the condition she or he would have been but for the discrimination).

Remedies also may include payment of:

• attorneys’ fees,
• expert witness fees, and
• court costs.

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case. Your state law may allow for greater or different remedies than federal law.

19. More Information About Age Discrimination:

EEOC: Facts About Age Discrimination
EEOC Statistics on Charges of Age Discrimination

Filing a Wage and Hour Claim – Wisconsin

Does Wisconsin have state overtime laws that are different from federal law?

Like federal law, Wisconsin law requires employers to pay employees one- and one-half times their regular hourly wage for all hours worked in excess of 40 in a given week. Wisconsin’s overtime law generally applies only to private sector employees; state and local employees are covered by the federal overtime requirements. Anyone who is not covered by the state’s minimum wage law is also not covered by the state’s overtime law. In addition, the following employees who are covered by the state’s minimum wage law are not covered by the state’s overtime law:

• Persons employed in a bona fide executive, administrative, or professional capacity (as defined by law)
• Outside salespersons
• Higher paid commission employees of retail and service establishments 50% of whose earnings come from commission and who earn at least 150% of the minimum wage for all hours worked
• Certain drivers, drivers’ helpers, loaders, or mechanics of a motor carrier or private carrier
• Taxi drivers
• Indentured apprentices devoting time to classroom instruction
• Parts persons, salespersons, service managers, service writers, or mechanics selling or servicing automobiles, trucks, farm implements, trailers, boats, motorcycles, snowmobiles, other recreational vehicles or aircraft, when employed by a non-manufacturing establishment primarily engaged in selling such vehicles to ultimate purchasers
• Employees of seasonal amusement and recreation establishments that do not operate for more than 7 months of the year or which earn the vast majority of their profits in a six-month period
• Agricultural workers
• Motion picture theater employees
• Certain employees of hospitals and other institutions which care for the sick, the aged, the mentally ill or persons with developmental disabilities who reside on the premises, if they have an agreement with their employers
• Local delivery persons paid on the basis of trip rates or delivery plans that have the purpose and effect of reducing their hours
• Employees of funeral establishments
• Certain forestry and lumber workers in operations where no more than eight persons are employed
• Highly paid employees employed in the computer industry

Does Wisconsin have a minimum wage that is different from federal law?

Wisconsin’s minimum wage is $7.25 per hour. “Opportunity employees” (under the age of 20 and still in the first 90 consecutive days of employment) may be paid at a lower rate per hour. Minor employees (under 18) may be paid at a lower rate per hour. The minimum wage for agricultural employees is at a lower rate per hour.

The following employees are not covered by Wisconsin’s minimum wage provision:

• Any individual engaged in the house-to-house delivery of newspapers to the consumer or engaged in direct retail sale to the consumer.
• Any individual engaged in performing services for a person as a real estate agent or as a real estate salesperson, if all of those services are performed for remuneration solely by commission.
• Any individual engaged in performing services for the state or local government if that individual is an elective officer, is on the personal staff of an elective officer, other than a member of the legislature, is appointed by an elective officer to serve on a policymaking level, or is an immediate adviser to an elective officer with respect to the constitutional or legal powers of the elective officer’s office.

This is much broader than the federal provision, and so many employees who would not be covered by the federal minimum wage are covered by Wisconsin’s minimum.

Tipped employees may be paid as little as $2.33 per hour, as long as their tips suffice to bring them up to the minimum wage. This also applies to tipped minor employees.

For more information on the minimum wage in Wisconsin, visit http://dwd.wisconsin.gov/er/labor_standards_bureau/minimum_wage.htm.

Does Wisconsin have meal and rest break requirements, unlike federal law?

Only employees under 18 are entitled to a meal break: their employers must provide them with a 30-minute duty-free meal break for every shift greater than six hours in duration; this break does not have to be paid. Otherwise, employers are not required to provide breaks. Meal or rest breaks shorter than 30 minutes must be paid if they are provided. Meal breaks during which the employee is not free to leave the premises must also be paid.

How do I file a wage/hour or labor standards claim in Wisconsin?

If your employer owes you wages, you can file a Labor Standards Complaint Form with the Wisconsin Department of Workforce Development. The form is available at http://dwd.wisconsin.gov/dwd/forms/erd/ls_119_e.htm. Before filing the form, you must request the wages from your employer and wait six days after you are owed your wages. The Department will attempt to resolve the problem and, if that does not work, will refer the case to a local district attorney for enforcement or will take the case to court itself.

What are my time deadlines?

Do not delay in contacting the Department of Workforce Development to file a claim. There are strict time limits in which charges of wage-and-hour violations must be filed. In order for the Department to act on your behalf, you must file your claim within two years of the date on which your wages were owed. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the Department.

Union contracts may require filing a grievance in as little as 3 days after each adverse action. State and local employees may have time limits as short as 10 days to enforce their civil service protections. Federal environmental laws require that a written complaint be filed with OSHA within 30 days of each adverse action. Federal employees complaining of EEO violations must make their first complaint to their agency’s EEO officer within 45 days of each adverse action. Other laws have time limits at 90, 180, or 300 days, or any number of years from 1 to 6.

So, to plan what action you will file, you need to consider the possible laws, and when the earliest deadline is. Sometimes it is good to take time to assess the case and the possible claims before applying for unemployment compensation. The application for unemployment compensation will usually ask for a statement of the reason for separation from employment. The stated reason should be consistent with the claims you will make later in court. Before the deadline to file your action arrives, you will need to have a plan to prove that the other side broke the particular law under which you are making a claim.

How can I or my attorney pursue a claim in court in Wisconsin?

Instead of filing a claim with the Department of Workforce Development, you may bring a lawsuit in court to recover your unpaid wages. In addition to awarding you your back wages, the court may also require your employer to pay your litigation costs and attorneys’ fees. There is a statute of limitations of two years for this kind of lawsuit.

Contact Information

Wisconsin Department of Workforce Development
Equal Rights Division
Madison Office: 608.266.6860
Milwaukee Office: 414.887.4384
For more contact information visit: http://dwd.wisconsin.gov/er/

This material was originally prepared by attorney Joseph Jaramillo and former law clerks Keia Cole and Adam Weiss of the law firm Goldstein, Demchak Baller Borgen and Dardarian, and was updated by Professor Douglas D. Scherer, of Touro College, Jacob D. Fuchsberg Law Center. Professor Scherer also serves as the Vice President of Workplace Fairness.