Age Discrimination

 

The Age Discrimination in Employment Act (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The protections provided by the ADEA applies to employees and job applicants. 

Under the ADEA, it is unlawful to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age. It is also unlawful to limit, segregate, or classify an employee in any way which would tend to the employee of employment opportunities or otherwise adversely affect his status as an employee, because of the employee's age.

The ADEA prohibits compensation discrimination on the basis of age. The ADEA has no requirement that the claimant's job be substantially equal to that of a higher paid person outside the claimant's protected class.

The ADEA also makes it unlawful to 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.

The Purpose of The Age Discrimination in Employment Act

When Congress created the ADEA, it found and declared that:

     (1) in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs;

     (2)  the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons;

     (3)  the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave;

     (4)  the existence in industries affecting commerce, of arbitrary discrimination in employment because of age, burdens commerce and the free flow of goods in commerce.

Congress further found the purpose of the ADEA is to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.

ADEA's Anti-Retaliation Provision

An employer may not fire, demote, harass or otherwise "retaliate" against an employee for participating in a discrimination proceeding, or otherwise opposing discrimination.


Retaliation occurs when an employer takes an adverse action against an employee because he or she engaged in a protected activity.  A protected activity can be the employee's opposition to a practice believed to be unlawful discrimination.  Informing an employer that it is engaging in prohibited discrimination will most likely be considered protected activity.  Additionally, taking part in an employment discrimination proceeding would be considered protected activity. 


Title VII Discrimination

Title VII of the Civil Rights Act of 1964, as amended, prohibits an employer from treating an an applicant or employee or some someone associated with the employee, unfavorably or deprive them of employment benefits because of the person’s race, color, sex, religion and national origin. 

Title VII prohibits an employer from treating an employee adversely with respect to his to his compensation, terms, conditions, or privileges of employment, because of the employees race, color, religion, sex, or national origin.

Title VII prohibits compensation discrimination on the basis of race, color, religion, sex and national origin. Title VII does not require that the employee's job be substantially equal to that of a higher paid person outside the employee's protected class.

Sex:  Discrimination based on a person’s gender is also in violation of Title VII. Lesbian, gay and bisexual individuals may bring sex discrimination claims under Title VII.   In addition to Title VII, the Equal Pay Act mandates that men and women in the same work environment be treated with equality when it comes to their pay and work. The Equal Pay Act covers all types of pay including, bonuses, commission structure, profit sharing, vacation pay, allowances, holiday pay, reimbursement of expenses and benefits.

Race and Color: Discrimination can even occur when the employee and the person who caused the discrimination are the same race or color. An employer’s policy or practice that applies to everyone but has a negative impact on the employment of a certain race or color, may be illegal depending on whether the policy or practice is job-related and necessary to operate the business.

Religion: Title VII forbids harassment relating to the employee’s religion and segregation related to religion. The Act also requires an employer to provide a reasonable accommodation to accommodate an employee’s religious beliefs. However, if the accommodation provides more than a minimal burden on the employer, they do not have to accommodate. An employee cannot be for force to participate in a religious activity as a condition of employment.

National Origin: Title VII prohibits discrimination based on the employee’s particular country or part of the world, because of ethnicity or accent. Discrimination can occur even when the employee is of the same national origin as the one who inflicted the discrimination. Title VII prohibits any policy or practice by the employer that has a negative impact on the employee of a certain national origin if it is not related to the employee’s job and is not necessary to operate the employer’s business.
An employer is only required to make an employee speak “only English” on the job it is needed to ensure the safe or efficient operation of the operation of the employer’s business and it is required for non-discriminatory reasons. It is illegal for an employer to make an employment decision based on an employee’s accent unless the accent interferes with that employee’s job performance.

Title VII's Anti-Retaliation Provision

An employer may not fire, demote, harass or otherwise "retaliate" against an employee for participating in a discrimination proceeding, or otherwise opposing discrimination.

Retaliation occurs when an employer takes an adverse action against an employee because he or she engaged in a protected activity.  A protected activity can be the employee's opposition to a practice believed to be unlawful discrimination.  Informing an employer that it is engaging in prohibited discrimination will most likely be considered protected activity.  Additionally, taking part in an employment discrimination proceeding would be considered protected activity. 


Disability Discrimination

The American’s with Disabilities Act of 1990 (ADA) prohibits  employers 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.

The ADA requires an employer to provide a reasonable accommodation that would not cause significant difficulty or expense for the employer. After an employee requests an accommodation, the employer is only allowed to ask medical questions or require a medical exam if the employer needs the medical documentation to support the employee’s request for the accommodation.

The ADA prohibits compensation discrimination on the basis of disability.  The ADA has no requirement that the employee's job be substantially equal to that of a higher paid person outside the employee's protected class.

n 2008, the ADA was amended to expand the definition of "disability." Before the amendment, many Supreme Court decision interpreted the definition of "disability" too narrowly resulting in a denial of protection for many individuals with impairments such as cancer, diabetes, and epilepsy. The ADA's amendments make it easier for an individual seeking protection under the ADA to demonstrate that he or she has a disability. 

Purpose of the ADA

When President George Bush signed the ADA into law on July 26, 1990 , he stated "Three weeks ago we celebrated our nation's Independence Day. Today we're here to rejoice in and celebrate another 'independence day,' one that is long overdue. With today's signing of the landmark Americans for Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom."

In writing the ADA, Congress found, amongst other things that:

  • physical or mental disabilities in no way diminish a person's right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;
  • historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;
  • discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
  • individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;
  • the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and
  • the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous.

Congress declared that the purpose of the ADA, amongst other things, is to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.

ADA's Anti-Retaliation Provision

An employer may not fire, demote, harass or otherwise "retaliate" against an employee for participating in a discrimination proceeding, or otherwise opposing discrimination.


Retaliation occurs when an employer takes an adverse action against an employee because he or she engaged in a protected activity.  A protected activity can be the employee's opposition to a practice believed to be unlawful discrimination.  Informing an employer that it is engaging in prohibited discrimination will most likely be considered protected activity.  Additionally, taking part in an employment discrimination proceeding would be considered protected activity. 


Preganancy Discrimination

The Pregnancy Discrimination Act of 1978 (PDA) prohibits and employer from treating an employee unfavorably because of pregnancy, childbirth or a medical condition related to pregnancy. The PDA prohibits discrimination when it comes to any other aspect of employment, including pay, job assignments, promotions, layoffs, training, fringe benefits, firing, and any other term or condition of employment. As long as a pregnant woman is able to perform the major functions of her job, an employer cannot refuse to hire her because of her pregnancy related condition


Some medical conditions resulting from pregnancy can be protected under the American with Disabilities Act and therefore an employer cannot discriminate against the employee on the basis of these medical conditions.  An employer may have to provide a reasonable accommodation for a disability related to pregnancy, absent significant difficulty or expense.

As long as a pregnant woman is able to perform her jobs, she must be permitted to work.  Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay must allow an employee who is temporarily disabled due to pregnancy to do the same. Employers must hold open a job for a pregnancy related absence the same length of time that jobs are held open for employees on sick or temporary disability leave.

Under the Family and Medical Leave Act, a new parent may be eligible for 12 weeks of unpaid leave that may be used for care of the new child.  To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.

The PDA's Anti-Retaliation Provision

An employer may not fire, demote, harass or otherwise "retaliate" against an employee for participating in a discrimination proceeding, or otherwise opposing discrimination.


Retaliation occurs when an employer takes an adverse action against an employee because he or she engaged in a protected activity.  A protected activity can be the employee's opposition to a practice believed to be unlawful discrimination.  Informing an employer that it is engaging in prohibited discrimination will most likely be considered protected activity.  Additionally, taking part in an employment discrimination proceeding would be considered protected activity.


 

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