Other Types of Discrimination

Equal Pay

Several laws entitle workers who perform “substantially equal” work to be paid equally. The Equal Pay Act of 1963 applies only to equal pay regarding sex. Other laws, such as Title VII, the Age Discrimination in Employment Act and the Americans with Disabilities Act, prohibit discrimination in pay regarding any protected characteristic, not just sex.

Pregnancy

The Pregnancy Discrimination Act is an amendment to Title VII stating that an employer may not refuse to hire a woman simply because she is pregnant or might become pregnant. An employer also must allow the woman to perform her job as long as she is able and, in turn, treat her as any other temporarily disabled employee (such as modifying workload and assigning different tasks).

The Family and Medical Leave Act also protects pregnant women by allowing them to take up to 12 weeks off for maternity leave. The only stipulation is that the woman must have worked for the same employer for at least 12 months before she takes the leave of absence. Not all employees, however, are covered by the act.

Religion

Title VII prohibits religious discrimination and requires that employers accommodate employees’ religious beliefs as long as the accommodations are not an undue burden on the employer. Title VII protects all observances, practices and beliefs of religious employees, including atheists, agnostics and those who do not conform to any organized religion.
Religious-discrimination cases are rare, comprising only about 3 percent of the total cases filed each year. Most claims involve employers not allowing employees to wear certain clothes or accessories or to groom themselves in ways relating to their religion.

Another issue that arises in this area is time off for religious holidays and observances. Under Title VII, an employer must reasonably accommodate an employee’s religious practices and observances unless doing so would pose an undue hardship. The burden is on the employer to show that allowing time off for the religious observance would pose an undue hardship. Usually, isolated incidents of time off for religious observances or holidays are reasonable under the law.

National Origin

Title VII prohibits employers from discriminating against employees because of their national origin. National origin means either the country where the employee comes from or where his ancestors came from. So, a person could be an American-born citizen and still be a victim of national-origin discrimination.

The number of these discrimination claims has increased sharply recently, and many of them are intertwined with racial-discrimination claims. Like other harassment prohibitions in Title VII, harassment based on national origin is prohibited.

One workplace-discrimination issue being widely discussed recently is English-only rules or English-fluency requirements. Courts have said that these types of rules are permissible if they are needed to promote the safety, efficiency and effectiveness of the employer’s business. So, an English-only rule for an auto mechanic who has no contact with customers likely is discriminatory. That same requirement for a receptionist at the same establishment, however, would be valid.

Retaliation

Title VII prohibits employers from retaliating against employees who have filed a discrimination claim or have otherwise opposed discrimination. Retaliation can come in the form of firing, demoting, harassing or taking any other adverse action against the employee. The law also protects those who threaten to file a discrimination claim. It does not, however, protect the employee when he or she engages in illegal activity or activity that interferes with his or her work to the extent that he or she becomes ineffective.

Sexual Orientation

No federal law currently prohibits sexual-orientation discrimination. The only protection at the federal level exists in an executive order, which prohibits such discrimination for federal executive-level civilian employees — a very narrow class.

However, almost half of states and more than 180 cities have enacted laws prohibiting discrimination based on sexual orientation. These laws vary as to whom they protect; some protect only government employees, while others also protect private-sector workers. If no such law exists where the sexual orientation discrimination occurs, a claim under federal law might be available under a simple sexual harassment claim if the harassment is based on the person’s sex.

Political Affiliation

The Civil Service Reform Act of 1978 protects federal employees from discrimination based on political affiliation. This law, however, does not apply to certain high-ranking policy-making individuals. In Branti v. Finkel, the Supreme Court ruled that only employees in “non–policy-making, non-confidential” jobs are protected.

It is important to keep in mind that the act applies only to federal employees. However, the Constitution protects all non–policy-making employees from discrimination based on political affiliation. Additionally, numerous state and local laws also protect employees.

Gender Identity

Gender identity refers to one’s identity as either a man or a woman. Although gender identity usually matches anatomical sex, that is not always the case (e.g., transgendered individuals, “masculine” females, “feminine” males). These individuals facing hardships in the workplace have led at least 13 states, including California and Illinois, and 93 cities and counties to pass laws that prohibit gender-identity discrimination. No federal law currently prohibits such discrimination.

While these laws vary among jurisdictions, the basics are the same: No one may be discriminated against because of gender identity that results in a “tangible” employment action, such as hiring, firing, promoting, demoting, or denying a pay raise or benefits. Many of the laws also protect against harassment, which is another form of discrimination. In that instance (and depending on the specifics of the law), a person usually must prove that the conduct was unwelcome and severe or pervasive. Isolated incidents do not rise to the level of harassment.

It is important to make a distinction between gender-identity discrimination and sex discrimination. Sex discrimination involves an employee facing some adverse action simply because of his or her biological status as a man or woman. It includes sexual harassment and pregnancy-based discrimination because those activities specifically target a person based on his or her anatomical sex. Thus, the difference is between actual status (sex discrimination) and identity (gender-identity discrimination).

Last update: Nov. 5, 2008