What is employment discrimination?

Employment discrimination happens when an employer treats a job applicant or employee unfavorably because of a legally protected characteristic.

Whether intentional or unintentional, workplace discrimination can lead to costly complaints, lawsuits, reputational damage and significant disruption to employee morale and retention. 

The Equal Employment Opportunity Commission (EEOC), is the federal agency responsible for enforcing many of the federal laws that ban workplace discrimination. The EEOC enforces federal antidiscrimination laws concerning race, color, religion, sex, national origin, age, disability and genetic information.

Most federal anti-discrimination laws apply to employers with 15+ employees (20 for age discrimination). The EEOC investigates discrimination complaints and can settle or litigate cases. The EEOC also issues regulations that impose various compliance obligations and provides guidance to help employers understand and follow the law.

Employment discrimination protected characteristics

Under federal antidiscrimination law, applicants, employees and former employees are protected from employment discrimination on the basis of certain protected characteristics, including: 

• Race and color
• National origin 
• Religion 
• Sex, including pregnancy, sexual orientation and gender identity 
• Age (40+) 
• Disability 
• Genetic information 

Many states and localities extend protection further, covering traits such as marital status, height and weight, familial status and more. 

Forms of discrimination may include: 

• Disparate treatment: These are the most common discrimination claims. They occur when an employer treats someone less favourably than others because of a protected characteristic (such as race or sex). To prove a claim, the employee must show the employer acted with discriminatory intent, which can sometimes be inferred from the unequal treatment. 
• Disparate impact: Unlike disparate treatment (intentional discrimination), disparate impact happens when seemingly neutral policies harm a protected group more than others. Examples include height or weight requirements, physical ability requirements, and certain tests and screening tools. These policies aren’t automatically illegal, but employers must prove they serve a valid business need.
• Harassment: Harassment is unwelcome behaviour based on a protected characteristic that becomes unlawful when it’s a condition of employment or creates a hostile work environment. It’s not limited to sexual harassment; any protected characteristic (race, religion, sex, age, disability, etc.) can be involved. Minor annoyances or isolated incidents (unless very severe) usually don’t qualify, and harassment can occur between people with the same protected characteristics.
• Failure to accommodate. Several EEO laws require employers to provide reasonable accommodations—that is, adjustments or modifications to a job or the work environment—in certain situations. Employees and job applicants have the right to reasonable accommodation for disability, pregnancy (including childbirth and related medical conditions), and religion. While employers are not required to grant an accommodation request if it would cause undue hardship, they must engage in an interactive dialogue with the individual to evaluate the request and seek a workable solution. Failure to do so is a form of unlawful discrimination.
• Retaliation: Retaliation happens when an employer punishes someone—such as through termination, demotion or transfer—for taking part in a protected activity. These activities include filing a discrimination complaint, joining an investigation or opposing unlawful behaviour. Employers can be liable for retaliation even if the original discrimination claim is unfounded.

A strong compliance strategy requires tracking federal, state and local laws; maintaining updated policies; and ensuring consistency in decisions affecting job applicants and employees. 

Federal employment discrimination laws

Employers must comply with multiple federal laws that prohibit discrimination based on specific characteristics. Key laws include: 

Title VII of the Civil Rights Act 

Title VII of the Civil Rights Act of 1964 is the best known of the federal antidiscrimination laws. It prohibits employers with 15 or more employees from discriminating against employees and applicants on the basis of an individual’s race, color, religion, sex (including pregnancy, sexual orientation and gender identity) or national origin in all aspects of the employment relationship.

Age Discrimination in Employment Act (ADEA) 

The ADEA prohibits an employer with 20 or more employees from treating an applicant or employee less favorably because of that individual’s age. The general principles are the same as with sex or race-based discrimination. The ADEA does not protect employees or applicants under the age of 40, although some state and local age discrimination laws do. In other words, the ADEA only forbids age discrimination against individuals who are 40 and older.

Americans with Disabilities Act (ADA) 

The ADA bans discrimination against qualified employees and applicants with disabilities. Individuals are protected under the ADA if they have a disability, have a record of a disability or are perceived as having a disability. Employers must also provide reasonable accommodations to allow qualified individuals with disabilities to perform their essential job functions unless doing so causes undue hardship.

Pregnant Workers Fairness Act (PWFA)

The PWFA requires employers with 15 or more employees to make reasonable accommodations for the known limitations of an employee or applicant that are due to pregnancy, childbirth or a related medical condition unless the accommodation would impose an undue hardship on the operation of the business.

Genetic Information Nondiscrimination Act (GINA) 

Under GINA, it is illegal to discriminate against employees or applicants based on genetic information. GINA prohibits the use of genetic information in employment decisions. GINA also restricts employers from “requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.”

Equal Pay Act 

Under the federal Equal Pay Act, men and women in the same workplace must receive equal pay for equal work. This is not just applicable to identical jobs, but also to substantially equal jobs. Note that while the Equal Pay Act covers only sex-based pay discrimination, Title VII and other EEO laws prohibit pay discrimination based on other protected characteristics.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA prohibits employment discrimination against employees or applicants based on prior or current military service or an intention to serve in the future. The Act applies to service in the Army, Navy, Marine Corps, Air Force, Coast Guard and Public Health Service commissioned corps, and includes the reserve portions of those entities. Employers with federal contracts must also comply with additional rules enforced by the Office of Federal Contract Compliance Programs (OFCCP).