It is illegal to discriminate against an employee, either intentionally or through a disparate impact, on account of his or her race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age (40 or older), disability or genetic information. Most employers with at least 15 employees are covered by this body of federal law, as are most labour unions and employment agencies.
Protections Against Harassment
Harassment is included in the prohibitions on discrimination. Harassment is described as unwelcome conduct that, based on one or more protected characteristics, a “reasonable person” would consider “intimidating, hostile, or abusive”. It is illegal to harass an employee on account of these protections or to retaliate against an employee because he or she complained about discrimination, filed a charge of discrimination, or participated in an investigation or lawsuit concerning employment discrimination.
In June 2020, the U.S. Supreme held that LGTBQ+ employees are protected from workplace discrimination under Title VII. Before this decision, discrimination on the basis of sexual orientation or gender identity was a matter of state law, meaning that there were inconsistent standards depending on the state where the employee worked. Now employees throughout the U.S. are protected from such discrimination. The Employment Opportunities Commission recently rescinded its position that mandatory arbitration agreements, which cover employment discrimination claims, undermine the enforcement of U.S. anti-discrimination laws.
Employer’s Obligation to Provide Reasonable Accommodations
The failure to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. Furthermore, employers must accommodate an employee’s reasonable request for modification of dress and uniform policies on sincerely held religious beliefs, unless there is an undue hardship.
During the COVID-19 pandemic, if an employee provides notice that they are unable to come to work because they fall in a vulnerable population category, the employer may be obligated to provide a reasonable accommodation, particularly if the request is due to a medical condition or is pregnancy-based. Employers should consider whether these employees can work remotely and/or whether another accommodation is available. These employees may be eligible for paid sick leave under various laws, including the FFCRA. Importantly, an employer may not compel an employee to stay home simply because he or she falls into a “vulnerable population” category.
Employees who believe they have been unfairly discriminated against may seek redress in various federal, state and local administrative agencies, and the U.S. federal and state courts. If the court finds that a termination was the result of unlawful discrimination, the employee may be entitled to reinstatement (rarely granted), monetary damages and attorneys’ fees. Monetary damages include compensation for wages and benefits lost as a result of the termination, and, in some cases, for emotional or physical distress suffered as a result of the employer’s actions. In cases involving an egregious violation of the law, the employer may be liable for punitive damages. Federal law imposes caps on compensatory and punitive damages; many states do not.