In the United States, employment discrimination is prohibited by a collection of state and federal laws, as well as by ordinances of counties and municipalities. Only discrimination based on certain characteristics (protected categories) is illegal.
The United States Constitution prohibits discrimination by federal and state governments. Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state law. Federal law prohibits discrimination in a number of departments, including recruiting, hiring, job evaluations, promotion policies, training, compensation and disciplinary action. State laws often extend protection to additional categories or employers.
Under Federal law, employers generally cannot discriminate against employees on the basis of:
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The United States Constitution does not directly address employment discrimination, but its prohibitions on discrimination by the federal government have been held to protect federal government employees.
The Fifth Amendment to the United States Constitution and Fourteenth Amendment to the United States Constitution limit the power of the federal and state governments to discriminate. The Fifth amendment has an explicit requirement that the federal government not deprive individuals of "life, liberty, or property", without due process of the law. It also contains an implicit guarantee that the Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. In the employment context, these Constitutional provisions would limit the right of the state and federal governments to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group (such as a race or sex). Due process protection requires that government employees have a fair procedural process before they are terminated if the termination is related to a "liberty" (such as the right to free speech) or property interest. As both Due Process and Equal Protection Clauses are passive, the clause that empowers Congress to pass anti-discrimination bills (so they are not unconstitutional under Tenth Amendment) is Section 5 of Fourteenth Amendment.
Employment discrimination or harassment in the private sector is not unconstitutional, because Federal and most State Constitutions do not expressly give their respective government the power to enact civil rights laws that apply to the private sector. The Federal government's authority to regulate a private business, including civil rights laws, stems from their power to regulate all commerce between the States. Some State Constitutions do expressly afford some protection from public and private employment discrimination, such as Article I of the California Constitution. However, most State Constitutions only address discriminatory treatment by the government, including a public employer.
Absent of a provision in a State Constitution, State civil rights laws that regulate the private sector are generally Constitutional under the "police powers" doctrine or the power of a State to enact laws designed to protect public health, safety and morals. All States must adhere to the Federal Civil Rights laws, but States may enact civil rights laws that offer additional employment protection.
For example, some State civil rights laws offer protection from employment discrimination on the basis of sexual orientation, gender identity or political affiliation, even through such forms of discrimination are not yet covered in federal civil rights laws.
Federal law governing employment discrimination has developed over time.
The Equal Pay Act amended the Fair Labor Standards Act in 1963. The Equal Pay Act prohibits employers and unions from paying different wages based on sex. It does not prohibit other discriminatory practices in hiring. It provides that where workers perform equal work in jobs requiring "equal skill, effort, and responsibility and performed under similar working conditions," they should be provided equal pay.[2] The Fair Labor Standards Act applies to employers engaged in some aspect of interstate commerce, or all of an employer's workers if the enterprise is engaged as a whole in a significant amount of interstate commerce.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in many more aspects of the employment relationship. It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. Title VII prohibits discrimination based on race, color, religion, sex or national origin. It makes it illegal for employers to discriminate based upon protected characteristics regarding terms, conditions, and privileges of employment. Employment agencies may not discriminate when hiring or referring applicants, and labor organizations are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin.[1] The Pregnancy Discrimination Act amended Title VII in 1978, specifying that unlawful sex discrimination includes discrimination based on pregnancy, childbirth, and related medical conditions.[3] A related statute, the Family and Medical Leave Act, sets requirements governing leave for pregnancy and pregnancy-related conditions.[11]
The Age Discrimination in Employment Act (ADEA), enacted in 1968 and amended in 1978 and 1986, prohibits employers from discriminating on the basis of age. The prohibited practices are nearly identical to those outlined in Title VII, except that the ADEA protects workers in firms with 20 or more workers rather than 15 or more. An employee is protected from discrimination based on age if he or she is over 40. Since 1978, the ADEA has phased out and prohibited mandatory retirement, except for high-powered decision-making positions (that also provide large pensions). The ADEA contains explicit guidelines for benefit, pension and retirement plans.[6]
The Rehabilitation Act of 1973 prohibits employment discrimination on the basis of disability by the federal government, federal contractors with contracts of more than $10,000, and programs receiving federal financial assistance.[12] It requires affirmative action as well as non-discrimination.[12] Section 504 requires reasonable accommodation, and Section 508 requires that electronic and information technology be accessible to disabled employees.[12]
The Black Lung Benefits Act of 1973 prohibits discrimination by mine operators against miners who suffer from "black lung disease" (pneumoconiosis).[13]
The Bankruptcy Reform Act of 1978 prohibits employment discrimination on the basis of bankruptcy or bad debts.[8]
The Immigration Reform and Control Act of 1986 prohibits employers with more than three employees from discriminating against anyone (except an unauthorized immigrant) on the basis of national origin or citizenship status.[14]
The Americans with Disabilities Act of 1990 (ADA) was enacted to eliminate discriminatory barriers against qualified individuals with disabilities, individuals with a record of a disability, or individuals who are regarded as having a disability. It prohibits discrimination based on a physical or mental handicap and requires employers to make reasonable accommodations for disabled workers. The type of discrimination prohibited is broader than that explicitly outlined by Title VII. The ADA also places an affirmative requirement on employers to reasonably accommodate a disabled employee in the performance of his or her job unless the employer can show that "undue hardship" will result. A qualified individual with a disability is a person who is "substantially limited" in one or more major life activities.[4]
The Nineteenth Century Civil Rights Acts, amended in 1993, ensure all persons equal rights under the law and outline the damages available to complainants in actions brought under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the 1973 Rehabilitation Act.[15][16]
The Genetic Information Nondiscrimination Act of 2008 bars employers from using individuals' genetic information when making hiring, firing, job placement, or promotion decisions.[9]
The proposed Employment Non-Discrimination Act would ban discrimination on the basis of sexual orientation or gender identity.[17]
State statutes also provide extensive protection from employment discrimination. Some laws extend similar protection as provided by the federal acts to employers who are not covered by those statutes. Other statutes provide protection to groups not covered by the federal acts. Some state laws provide greater protection to employees of the state or of state contractors.
The following table lists protected categories not included in federal law. Age is included as well, since federal law only covers workers over 40.
| State or territory | Sexual orientation | Gender identity | Marital status | Medical condition | Political affiliation | Military discharge status | Age | Familial status | Public assistance status | Use of lawful product |
|---|---|---|---|---|---|---|---|---|---|---|
| Alabama | [18] | [18] | (40+) [19] | |||||||
| Alaska | [20] | [20] | [21] | (unknown age range) [21] | (parenthood) [21] | |||||
| Arizona | [22] | [22] | ||||||||
| Arkansas | [23] | [23] | ||||||||
| California | [24] | (included under sex)[25] | [24] | [24] | (40+) [24] | |||||
| Colorado | [26] | (included under sexual orientation)[25] | (unknown age range) [27] | (any lawful activity) [27] | ||||||
| Connecticut | [28] | (included under sex by ruling) [28] | [29] | (unknown age range) [29] | ||||||
| Delaware | [30] | [30] | [31] | (40+) [31] | ||||||
| District of Columbia | [32] | (gender identity or expression) [25] | (including domestic partnership) [33] | [33] | (18+) [33][34] | "family responsibilities", parenthood under "marital status" [33] | ||||
| Florida | [35] | ? (in some cases under disability)[35] | [36] | (unknown age range) [36] | ||||||
| Georgia | [37] | [37] | (40-70) [38] | |||||||
| Hawaii | [39] | [40] | [39] | (unknown age range) [39] | ||||||
| Idaho | [41] | [41] | (40+) [42] | |||||||
| Illinois | [43] | (included under sexual orientation) [43] | [44] | ("unfavorable discharge from military service") [44] | (40+) [44] | |||||
| Indiana | [45] | [45] | (40-75) [46] | use of tobacco [47] | ||||||
| Iowa | [48] | [48] | (18+ or legal adult) [49] | |||||||
| Kansas | [50] | [50] | (18+) [51] | |||||||
| Kentucky | [52] | [52] | (40+) [53] | (smoker/nonsmoker) [53] | ||||||
| Louisiana | [54] | [54] | "sickle cell trait" [55] | (40+) [56][57] | ||||||
| Maine | [58] | (included under sexual orientation) [58] | (unknown age range) [59] | |||||||
| Maryland | [60] | [60] | [61] | (unknown age range) [61] | ||||||
| Massachusetts | [62] | (under sex or disability) [62] | (>40) [63][64] | |||||||
| Michigan | [65] | [65] | [66] | [66] | ||||||
| Minnesota | [67] | (included under sexual orientation) [25] | [68] | (over age of majority) [68] | [68] | |||||
| Mississippi | [69] | [69] | ||||||||
| Missouri | [70] | [70] | (40-70) [71] | |||||||
| Montana | [67] | [67] | [72] | [72] | ||||||
| Nebraska | [73] | [73] | [74] | (40+) [74] | ||||||
| Nevada | [75] | [75] | (40+) [76] | [76] | ||||||
| New Hampshire | [77] | [77] | [78] | (which ages?) [78] | ||||||
| New Jersey | (affectional or sexual orientation)[79] | (gender identify or expression) [25] | (and civil union status, and domestic partnership status) [79] | "atypical hereditary cellular or blood trait" [79] | (18-70) [79] | [79] | ||||
| New Mexico | [80] | [25] | ("spousal affiliation") [81] | "serious medical condition" [81] | (unknown age range) [81] | |||||
| New York | [82] | ? (in some cases under sex) [83] | [82] | "political activities" [84] | (18+) [82] | [84] | ||||
| North Carolina | [85] | [85] | (sickle cell or hemoglobin C trait)[86] | [87] | ||||||
| North Dakota | [88] | [88] | [89] | (40+) [89] | [89] | ("lawful activity") [89] | ||||
| Ohio | [90] | [90] | (40+) [91] | |||||||
| Oklahoma | [92] | [92] | (40+) [93] | |||||||
| Oregon | [94] | [25] | [95] | (18+) [95] | use of tobacco [95] | |||||
| Pennsylvania | [96] | [96] | (40+) [97] | |||||||
| Rhode Island | [98] | (gender identity or expression) [25] | (40+) [99] | |||||||
| South Carolina | [100] | [100] | (40+)[101] | |||||||
| South Dakota | [102] | [102] | ||||||||
| Tennessee | [103] | [103] | (40+) [104] | |||||||
| Texas | [105] | [105] | (40+) [106] | |||||||
| Utah | [107] (protected in Salt Lake City only)[108] | [107] (protected in Salt Lake City only)[108] | (40+) [109] | |||||||
| Vermont | [110] | [25] | (18+) [111] | |||||||
| Virginia | [112] | [112] | (40+) [113] | |||||||
| Washington | [114] | (included under sexual orientation) [25] | [115] | Hepatitis C [116][117] | (40+) [115][118] | |||||
| West Virginia | [119] | [119] | (40+) [120] | |||||||
| Wisconsin | [121] | [121] | [122] | [123] | (40+) [124] | [125] | ||||
| Wyoming | [126] | [126] | (40+) [127] | |||||||
| Guam | (40+) [128][129] | |||||||||
| Puerto Rico | (political affiliation or ideology) [130] | (legal working age+)[130][131] | ||||||||
| US Virgin Islands | (unknown age range) [132] | |||||||||
| State or territory | Sexual orientation | Gender identity | Marital status | Medical condition | Political affiliation | Military discharge status | Age | Familial status | Public assistance status | Use of lawful product |
In addition,
Employees of federal and state governments have additional protections against employment discrimination.
The Civil Service Reform Act of 1978 prohibits discrimination in federal employment on the basis of conduct that does not affect job performance. The Office of Personnel Management has interpreted this as prohibiting discrimination on the basis of sexual orientation.[134] In June 2009, it was announced that the interpretation would be expanded to include gender identity.[135]
Employers are generally allowed to consider characteristics that would otherwise be discriminatory if they are bona fide occupational qualifications (BFOQ). For example, a manufacturer of men's clothing may lawfully advertise for male models.
Some anti-discrimination laws make exceptions for religious organizations. Religious organizations may be exempted entirely for certain categories, or may be allowed exceptions for certain types of positions.
The United States Army excludes women from specialties, positions, and units (battalion size or smaller) that routinely engage in direct combat.[136]
Employment practices that do not directly discriminate against a protected category may still be illegal if they produce a disparate impact on members of a protected group. Title VII of the Civil Rights Act of 1964 prohibits employment practices that have a discriminatory impact, unless they are related to job performance.
The Act requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and, if, as here, an employment practice that operates to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding the employer's lack of discriminatory intent.[137]
Height and weight requirements have been identified by the EEOC as having a disparate impact on national origin minorities.[138]
However, when defending against a disparate impact claim that alleges age discrimination, an employer does not need to demonstrate necessity; rather, it must simply show that its practice is reasonable.
The Equal Employment Opportunity Commission (EEOC) interprets and enforces the Equal Pay Act, Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Title I and V of the Americans With Disabilities Act, Sections 501 and 505 of the Rehabilitation Act, and the Civil Rights Act of 1991.[139] The Commission was established by the Civil Rights Act of 1964.[140] Its enforcement provisions are contained in section 2000e-5 of Title 42,[141] and its regulations and guidelines are contained in Title 29 of the Code of Federal Regulations, part 1614.[142] Persons wishing to file suit under Title VII and/or the ADA must exhaust their administrative remedies by filing an administrative complaint with the EEOC prior to filing their lawsuit in court.[143]
The Office of Federal Contract Compliance Programs enforces Section 503 of the Rehabilitation Act, which prohibits discrimination against qualified individuals with disabilities by federal contractors and subcontractors.[144]
Under Section 504 of the Rehabilitation Act, each agency has and enforces its own regulations that apply to its own programs and to any entities that receive financial assistance.[12]
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, which prohibits discrimination based on citizenship status or national origin.[145]
State Fair Employment Practices (FEP) offices take the role of the EEOC in administering state statutes.[143]