When we say someone has discriminating taste, we usually consider it a compliment. But that’s about the end of the positive interpretation of discrimination. Obviously, it is illegal to discriminate when you hire, fire, promote or provide benefits to employees if you do so based on age, race, color, sex, religion, pregnancy, veteran status, national origin or disability. Besides being illegal, it is simply not good management practice to base employment decisions on anything other than individual qualifications and abilities.
So let’s take a look at the laws that focus on discrimination in the workplace.
The Equal Pay Act of 1963
Considered the starting point of the equal opportunity movement, this law was designed to ensure that men and women got equal pay for equal work. In determining if a position is “equal,” employers should consider the following factors:
- Skill—the experience, ability, education and training required to perform a job,
- Effort—the amount of physical or mental exertion required for the position,
- Responsibility—the degree of accountability in performing a job, including supervisory and financial responsibility,
- Working conditions—the physical environment, including temperature, ventilation, exposure to chemicals, and potential hazards.
Variations in pay rates are justified if there are defined differences in seniority, quality of work, quantity of work or other merit-based compensation factors.
Title VII of the Civil Rights Act of 1964
In 1964, Congress passed the Civil Rights Act. Title VII of the act (amended in 1991) prohibits discrimination based on race, color, religion, sex or national origin in employment-related decisions.
Certain exceptions are permitted, including a bona fide seniority system or a system that differentiates wages based on quality or quantity of work.
The Age Discrimination in Employment Act
The ADEA, passed in 1967, states that individuals who are 40 years of age or older are protected against discrimination based on age. This does not mean you must hire individuals because they are 40 years or older. Instead, you should hire the best-qualified person regardless of age.
The ADEA doesn’t specifically state that you can’t ask a person his or her age or date of birth. Yet, you should be careful when asking questions regarding age. If the applicant or employee gets the impression that the questions are being used to discriminate, you may have a legal issue.
It is important to note that several states have laws that supersede the federal statutes. For example, in New York State any person at least 18 years of age is protected from discrimination based on age. In effect, New York State law protects younger people if they have been refused a position because of their age.
The Americans with Disabilities Act of 1990
There have been other laws that provided protection, but the ADA is the first law to recognize disabled individuals as a “protected class.”
The crux of the law states that employers must not discriminate against individuals with disabilities provided the individuals can perform the essential functions of the job with or without reasonable accommodations. Let’s define those terms
According to the ADA, an individual is considered to have a disability when he or she:
- Has a physical or mental impairment that substantially limits one or more major life activities,
- Has a record of such an impairment,
- Is regarded as having such an impairment.
Major life activities are functions such as caring for oneself, performing manual tasks, walking, speaking, seeing, hearing, learning and working.
Essential functions are determined by focusing on the purpose of the position. In effect, “what” needs to be done is more important than “how” it is currently being done. An example of this would be that for a sous chef position, cooking skills are mandatory, whereas the ability to hear might not be since there are other ways to communicate.
A reasonable accommodation, on the other hand, is any change or adjustment to a job or work environment that an employer can make that would permit a qualified applicant or employee with a disability to participate in the interview process or enjoy the privilege of employment. Employers are required to make reasonable accommodations unless it would mean undue financial hardship.
With all this, it might be easy to lose the essence of the ADA: do not discriminate against a disabled person who has the qualifications, skills and abilities to perform the job.
The Family and Medical Leave Act of 1993
The FMLA requires employers to provide up to 12 weeks of unpaid leave of absence for:
- The birth of a child and to care for the newborn child,
- The placement of a child with the employee through adoption or foster care, and to care for the child,
- The care of the employee’s spouse, son, daughter or parent with a serious health condition,
- A health condition that makes the employee unable to perform the essential functions of the job.
The FMLA applies to employers with at least 50 employees in a 75-mile radius. To be eligible, an individual must have been employed by their current employer for 12 months and have worked 1,250 hours during that time.
Employers may require that their employees use all their accrued paid leave as part of FMLA leave time.
Making employment decisions
With these laws in mind, it is important to always use job-related criteria for all employment decisions. Here are a few keys to avoiding discrimination:
- Hire the individual whose background, skills and experience best match the requirements for the position.
- Evaluate people using legitimate criteria. Don’t make assumptions about an individual’s abilities based on age, gender or other factors unrelated to performance.
- Offer the same training and development opportunities to all employees.
- Design and administer pay systems using legitimate criteria and standards to differentiate wages.
Promote employees based on proven, documented performance-related criteria.
- Provide constructive criticism and discipline based on performance standards, and offer appropriate
training when necessary.
- Ensure you use a process of progressive discipline and coaching for improvement before terminating
- Apply all policies and procedures fairly and consistently; do not play favorites.
- Consider all employment decisions from the viewpoint of an objective observer.
An exception to some rules
In certain circumstances, an employer is granted an exception to the employment discrimination laws if the attribute is a job-related bona fide occupational qualification (BFOQ). To justify that a characteristic is indeed a BFOQ, the employer must be able to prove there is a direct relationship between that characteristic and the ability to perform the job, and that it is necessary to the normal operation of the business. A good example is requiring a women’s locker room attendant to be a woman.