Overview

Employment Discrimination laws seek to prevent discrimination based on race, sex, religion, national origin, physical disability, and age by employers. There is also a growing body of law preventing or occasionally justifying employment discrimination based on sexual orientation. Discriminatory practices include bias in hiring, promotion, job assignment, termination, compensation, and various types of harassment. The main body of employment discrimination laws is composed of federal and state statutes. The United States Constitution and some state constitutions provide additional protection where the employer is a governmental body or the government has taken significant steps to foster the discriminatory practice of the employer.

The Fifth and Fourteenth Amendments of the United States Constitution limit the power of the federal and state governments to discriminate. The Fifth amendment has an explicit requirement that the federal government not deprive individuals of "life, liberty, or property," without due process of the law. See U.S. Const. amend. V. It also contains an implicit guarantee that each person receive equal protection of the laws. The Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. See U.S. Const. amend. XIV. In the employment context the right of equal protection limits the power of the state and federal governments to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group (such as a race or sex). Due process protection requires that employees have a fair procedural process before they are terminated if the termination is related to a "liberty" (such as the right to free speech) or property interest. State constitutions may also afford protection from employment discrimination.

Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state statutes.

The Equal Pay Act amended the Fair Labor Standards Act in 1963. The Equal Pay Act prohibits paying wages based on sex by employers and unions. It does not prohibit other discriminatory practices bias in hiring. It provides that where workers perform equal work in jobs requiring "equal skill, effort, and responsibility and performed under similar working conditions," they should be provided equal pay. The Fair Labor Standards Act applies to employees engaged in some aspect of interstate commerce or all of an employer's workers if the enterprise is engaged as a whole in a significant amount of interstate commerce.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in many more aspects of the employment relationship. It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. The Act prohibits discrimination based on race, color, religion, sex or national origin. Sex includes pregnancy, childbirth or related medical conditions. It makes it illegal for employers to discriminate in hiring, discharging, compensation, or terms, conditions, and privileges of employment. Employment agencies may not discriminate when hiring or referring applicants. Labor Organizations are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin.

The Nineteenth Century Civil Rights Acts, amended in 1993, ensure all persons equal rights under the law and outline the damages available to complainants in actions brought under the Civil Rights Act of 1964, Title VII, the American with Disabilities Act of 1990, and the Rehabilitation Act of 1973.

The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating on the basis of age. The prohibited practices are nearly identical to those outlined in Title 7. An employee is protected from discrimination based on age if he or she is over 40. The ADEA contains explicit guidelines for benefit, pension and retirement plans.

The Rehabilitation Act's purpose is to "promote and expand employment opportunities in the public and private sectors for handicapped individuals," through the elimination of discrimination and affirmative action programs. Employers covered by the act include agencies of the federal government and employers receiving federal contracts over $2500 or federal financial assistance. The Department of Labor enforces section 793 of the act which refers to employment under federal contracts. The Department of Justice enforces section 794 of the act which refers to organizations receiving federal assistance. The EEOC enforces the act against federal employees and individual federal agencies promulgate regulation pertaining to the employment of the disabled.

The American with Disabilities Act (ADA) was enacted to eliminate discrimination against those with handicaps. It prohibits discrimination based on a physical or mental handicap by employers engaged in interstate commerce and state governments. The type of discrimination prohibited is broader than that explicitly outlined by Title VII.

The Black Lung Act prohibits discrimination by mine operators against miners who suffer from "black lung" (pneumoconiosis).

The Equal Opportunity Employment Commission (EEOC) interprets and enforces the Equal Payment Act, Age Discrimination in Employment Act, Title VII, Americans With Disabilities Act, and sections of the Rehabilitation Act. The Commission was established by Title VII. Its enforcement provisions are contained in section 2000e-5 of Title 42, and its regulations and guidelines are contained in Title 29 of the Code of Federal Regulations, part 1614.

State statutes also provide extensive protection from employment discrimination. Some laws extend similar protection as provided by the federal acts to employers who are not covered by those statutes. Other statutes provide protection to groups not covered by the federal acts. A number of state statutes provide protection for individuals who are performing civil or family duties outside of their normal employment.

Menu of sources

Federal Material

Federal Statutes

• 42 U.S.C. §§ 1981, 1981a, 1983, 1988 - Nineteenth Century Civil Rights Acts
• 42 U.S.C. Chapter 21 - Civil Rights Act of 1964
• 29 U.S.C. § 206 - Equal Pay Act of 1963
• 42 U.S.C. Chapter 126 - Americans with Disabilities Act of 1990
• 29 U.S.C. §§ 621 - 634 - The Age Discrimination in Employment Act
• 30 U.S.C. § 938 - The Black Lung Act
• 29 U.S.C. §§ 791, 793, 794(a) - The Rehabilitation Act

Federal Agency Regulations

• Code of Federal Regulations: 29 CFR, Chapt. XIV (http://cfr.law.cornell.edu/cfr/cfr.php?title=29&type=chapter&value=14) - Equal Employment Opportunity Commission

Federal Judicial Decisions

• U.S. Supreme Court: Recent Decisions on Employment Discrimination (http://supct.law.cornell.edu/supct/search/index.html?query=employment+and+discrimination)
• U.S. Circuit Courts of Appeals: Recent Decisions on Employment Discrimination (http://www.law.cornell.edu/usca/search/index.html?query=employment+and+discrimination)

State Material

State Statutes

• New York State law prohibiting employment discrimination - New York Executive Law § 296 (http://www.nysdhr.com/hrlaw.html#296).
• California statute prohibiting discrimination in public works employment - California Labor Code § 1735 (ftp://leginfo.public.ca.gov/pub/code/lab/01001-02000/1720-1740)
• California statute to prevent discrimination based on sexual orientation - California Labor Code § 1102.1 (ftp://leginfo.public.ca.gov/pub/code/lab/01001-02000/1101-1106).
• California statute requiring equal pay for equal work - California Labor Code §§ 1197.5 (ftp://leginfo.public.ca.gov/pub/code/lab/01001-02000/1171-1205) .
• Summaries of Agency and Court Decisions Under the Wisconsin Fair Employment Act (http://www.wisbar.org/sections/labor/index.html)
• State Statutes Dealing with Labor (http://www.law.cornell.edu/topics/state_statutes.html#labor)

State Judicial Decisions

• N.Y. Court of Appeals:
  • Decisions on Employment Discrimination (http://www.law.cornell.edu/nyctap/search/index.html?query=employment+and+discrimination+not+liibulletin)
  • Commentary from liibulletin-ny  (http://www.law.cornell.edu/nyctap/search/index.html?query=liibulletin+and+employment+and+discrimination)
• Appellate Decisions from Other States (http://www.law.cornell.edu/states/)

Other References

Key Internet Sources

• U.S. Department of Labor (http://www.dol.gov/)

Useful Offnet (or Subscription - $) Sources

• Good Starting Point in Print: Mark Player, Hornbook on Employment Discrimination Law (http://west.thomson.com/product/22051276/product.asp), West Group (1988)

other topics

• Affirmative action
• Category: Employment Law