Harriet Robinson: Federal Employment Discrimination

Federal employment discrimination is a heavily regulated subject, and when hiring an employee, there are a host of rules and regulations that an employer can run afoul of. Many of these laws only apply to certain employers, and many of these laws have exceptions. Here is an overview of the regulatory framework regarding federal employment discrimination.
Overview of Applicable Federal Laws Prohibiting Employer Discrimination
Although this list is not exhaustive, these are the most commonly litigated areas of employment discrimination law:

• Title VII of the Civil Rights Act of 1964 (Title VII);
• The Equal Pay Act of 1963 (EPA);
• The Age Discrimination in Employment Act of 1967 (ADEA);
• The Immigration and Reform and Control Act of 1986 (IRCA);
• Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA);
The Equal Employment Opportunity Commission (EEOC) is the primary federal agency for enforcing most of these laws.

Title VII of the Civil Rights Act

Title VII prohibits employers from discriminating against employees and applicants based on their race, color, religion, sex or national origin. Title VII also protects individuals against being discriminated against based on association with any of the above protected categories. For example, firing someone because they associate with a religious group you don’t approve of would violate Title VII. Finally, Title VII protects against harassment as well as retaliation based on the protected categories listed above.

Title VII only applies to the following employers:
• Private employers if they have more than 15 employees;
• Federal government employers;
• State government employers and their political subdivisions;
• Labor organizations;
• Employment agencies.

The Equal Pay Act

The Equal Pay Act prohibits discrimination on the basis of sex in the payment of wages for equal work. To be equal work, the work must “require equal skill, effort, and responsibility, and be performed under similar working conditions.” In other words, the general rule is that if a man and a woman perform the same job, they should be paid the same. The exceptions to this general rule are when difference is pay is based on “a seniority system, a merit system, a system which measures earnings by quantity or quality of production or a differential based on any other factor other than sex.”

Unlike other acts, the Equal Pay Act applies to practically every employer, including private employers regardless of how many employees they have.

The Age Discrimination in Employment Act

The ADEA protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA also prohibits against harassment and retaliation based on a protected employee’s age. However, the ADEA does permit employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.

The ADEA applies to the following employers:
• Private employers if they have more than 20 employees;
• Federal government employers;
• State government employers and their political subdivisions if they have more than 20 employees;
• Labor organizations;
• Employment agencies.

The Immigration and Reform and Control Act

IRCA prohibits employers from discriminating against employees or applicants based on their citizenship or national origin, and also makes it illegal to knowingly hire or recruit illegal immigrants
Note that this overlaps with Title VII, but applies to employers that Title VII may not cover. This is because IRCA applies to all employers who have more than four employees and is not nearly as limited as the list of employers covered by Title VII.

The Americans with Disability Act

The ADA prohibits employment discrimination against qualified individuals with disabilities. The ADA also prohibits employment discrimination against individuals who associate with or are related to individuals with disabilities. For example, this means that you cannot refuse to hire someone because their child is disabled.

What qualifies as discrimination under the ADA can be fairly complex but there are a few simple rules to keep in mind in order to comply with the ADA:

• Ask the Same Questions of Everybody: Make sure you ask the same questions of all applicants, don’t just ask people you think may be disabled. If you only ask a disabled person whether they can lift something that likely violates the ADA.

• Inquiring About “Accommodations” for Disabled Applicants: If there is no reason to believe that the applicant is disabled, you cannot ask whether the applicant needs any special accommodation (special equipment or help). If there is a reason to believe that the applicant is disabled, because it’s obvious (e.g., the applicant came in a wheel chair) or because the applicant told you about a disability, then you can ask whether the applicant needs any special accommodation.

• Employers are Free to Hire the Most Qualified Applicant: Employers can often misread the ADA’s anti-discriminatory intentions as requiring them to give people with disabilities special treatment. The ADA does not require an employer to give any preferential consideration to a disabled applicant over other qualified applicants. An employer is free to select the most qualified applicant available.

The ADA applies to the following employers:
• Private employers if they have more than 15 employees;
• Federal government employers if they have more than 15 employees;
• State government employers and their political subdivisions if they have more than 15 employees;
• Labor organizations if they have more than 15 employees;
• Employment agencies if they have more than 15 employees.

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