What do the discrimination laws require?

TITLE VII OF THE 1964 CIVIL RIGHTS ACT

Employer coverage: Generally both private and public employers.

Number of employees: 15 or more.

Extraterritorial application: Yes.

Scope of law: Bans discrimination in all areas of the employer-employee relationship-from advertisements for help through termination or retirement-on the basis of race, color, sex, religion, or national origin.

What if there was no intent to discriminate? You don't have to purposefully discriminate to get into legal trouble. When an employment practice or policy that on its face looks nondiscriminatory has a disproportionately discriminatory impact on minorities, it is called disparate or adverse impact discrimination. No motive is required for disparate impact discrimination. Employers need to guard against the possibility that their actions might result in disparate impact discrimination, which is also prohibited under federal law.

Posting requirement: Yes.

Remedies: Equitable remedies, including injunctive relief, reinstatement, hiring, back pay and front pay. Damages for intentional discrimination include consequential, compensatory, and punitive damages. Damages for nonmonetary losses are capped between $50,000 and $300,000 depending on the employer's size. Damages are not available for nonintentional discrimination. Compensatory and punitive damages for racial discrimination are precluded if such damages can be recovered under 42 USC, Section 1981.

Enforcement mechanism: Civil lawsuit (jury trial for intentional violations). Separate procedures for federal agency employees.

Administering agency: Equal Employment Opportunity Commission.

AMERICANS WITH DISABILITIES ACT OF 1990

Employer coverage: Generally both private and public employers.

Number of employees: 15 or more.

Extraterritorial application: Yes.

Scope of law: Bans discrimination against a qualified individual with a disability in all parts of the employment process.

Posting requirement: Yes.

Remedies: Equitable remedies, including injunctive relief, reinstatement, hiring, back pay and front pay. Damages for intentional discrimination include consequential, compensatory, and punitive damages. Damages for nonmonetary losses are capped between $50,000 and $300,000 depending on the employer's size. Damages are not available for nonintentional discrimination.

Enforcement mechanism: Civil lawsuit (jury trial for intentional violations). Separate procedures for federal agency employees.

Administering agency: Equal Employment Opportunity Commission.

REHABILITATION ACT OF 1973

Employer coverage:Section 501: Most Congressional and executive branch employees. Section 503: Private employers and state/local governments who have federal contracts worth more than $10,000. Section 504: Private employers and state/local governments receiving federal financial assistance.

Number of employees: No minimum; 50 employees plus a contract worth $50,000 or more triggers a requirement for a written Affirmative Action Plan (41 CFR 60-741.40(a)).

Extraterritorial application: Generally no; employment decisions made in the US regarding employment opportunities abroad are subject to Section 503 (41 CFR 60-741.4(a)(4)).

Scope of law: Protects qualified job applicants and employees of federal departments and agencies, of businesses performing federal contract work, and of recipients of federal financial assistance from discrimination based on mental or physical disability. Private employers performing under federal contracts or subcontracts must avoid discrimination and take affirmative action to hire and advance qualified persons with disabilities (41 CFR 60-741.5), as do federal departments and agencies.

Posting requirement: Yes.

Remedies:Section 501: Title VII remedies, including compensatory and punitive damages. Section 503: Withholding of contract payments, termination of contracts, debarment from future contracts; make-whole remedies, including reinstatement and back pay (41 CFR 60-741.65(a); 41 CFR 60-741.66). Section 504: Title VI remedies, including termination of federal funding.

Enforcement mechanism:Section 501: Title VII procedures, including jury trials when compensatory damages are sought. Section 503: Administrative enforcement with resort to the courts through the Attorney General in instances where denial of further contract work might be ineffective; no private right of action (41 CFR 60-741.65). Section 504: Title VI procedures, including agency determinations with judicial review and a presumptive right to court action.

Administering agencies: Equal Employment Opportunity Commission (federal employment); Office of Federal Contract Compliance (federal contracts); and the Department of Justice (federally funded programs).

AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967

Employer coverage: Generally both private and public employers.

Number of employees: 20 or more.

Extraterritorial application: Yes.

Scope of law: Prohibits discrimination against persons who are at least 40 years of age, but allows mandatory retirement of highly-compensated executives or top policy makers who have reached 65 years of age and who stand to receive at least $44,000 annually in pension payments.

What if there is no intent to discriminate? Like Title VII, disparate impact theory applies in age bias cases. However, reasonable employment criteria may be used despite their adverse impact on older workers. While a disparate impact claimant must identify a specific test, requirement or practice that has an adverse impact on older workers, it is up to the employer to persuade the fact finder that its use was reasonable.

Posting requirement: Yes.

Remedies: As provided by the Fair Labor Standards Act-Civil penalties of up to $1,000. Injunctive and monetary relief, including hiring, reinstatement, promotion, and liability for lost wages. Damage awards may be doubled when violations are willful.

Enforcement mechanism: Civil lawsuit, jury trial. Individual's right to bring suit terminates when the EEOC commences an action to enforce the individual's rights. Separate procedures for federal agency employees.

Administering agency: Equal Employment Opportunity Commission.

EQUAL PAY ACT OF 1963

Employer coverage: Generally both private and public employers.

Number of employees: No minimum.

Extraterritorial application: No.

Scope of law: Prohibits the payment of workers of one sex at a rate different from that paid the other sex for substantially equal work in the same establishment. Differences in pay are not unlawful if they result from a seniority system, a merit system, a system that measures earnings by the quantity or quality of production, or by any factor other than sex.

Posting requirement: Yes.

Remedies: As provided by the Fair Labor Standards Act-Civil penalties of up to $1,000. Injunctive and monetary relief, including reinstatement, promotion, and liability for lost wages. Damage awards may be doubled when violations are willful.

Enforcement mechanism: Civil lawsuit, jury trial. Individual's right to bring suit terminates when the EEOC commences an action to enforce the individual's rights. Separate procedures for federal agency employees.

Administering agency: Equal Employment Opportunity Commission.

CIVIL RIGHTS ACT OF 1866 (42 USC, SECTIONS 1981 AND 1982)

Employer coverage: Private employers are covered without a showing of state action or affecting commerce requirement; state/local governments.

Number of employees: No minimum.

Scope of law:Section 1981 extends to all persons the same right as white citizens to contract, to sue, to participate in legal proceedings and to enjoy full and equal benefit of the laws. Courts have held that employment is covered by Section 1981 because the employer-employee relationship is a contractual one.

Under Section 1982, all citizens of the United States are granted the same right to inherit, purchase, lease, sell, hold, and convey real and personal property as is enjoyed by white citizens. The US Supreme Court has held that employment situations are covered on the basis that an employee has a legally recognized property right in continued employment.

Who is protected? Blacks are not the only persons protected under the Section 1981-the ban on race discrimination applies to all persons, including whites. Current anthropological classifications are not applicable; the law protects individuals who were viewed as members of distinct races at the time the law was enacted, including Arabs, Jews, and Hispanics. Courts are divided as to whether the law prohibits national origin discrimination, but claims of national origin discrimination and race discrimination may be so intertwined as to be indistinguishable.

Discrimination on the basis of alienage may also be prohibited under Section 1981.

What is prohibited? Section 1981 applies to all forms of intentional race bias in the workplace, including discrimination in hiring, demotions, transfers, promotions, discharges, wages and working conditions.

An essential element in a Section 1981 action is the existence of a contract. Case law addressing whether an at-will employee may bring an action under Section 1981 is conflicting.

What if there was no intent to discriminate? Section 1981 claimants must show that the employer actually intended to discriminate.

Posting requirement: No.

Remedies: Legal and equitable relief; unlimited compensatory and punitive damages.

Enforcement mechanism: Civil lawsuit, jury trial.

Administering agency: None.

CIVIL RIGHTS ACT OF 1871 (42 USC, SECTIONS 1983 AND 1985)

Employer coverage: Individuals acting under color of state law; individuals acting in a conspiracy.

Number of employees: No minimum.

Scope of law: Creates a cause of action for deprivation of federally protected rights under color of state law, custom or usage (42 USC 1983) or for deprivation of rights resulting from a conspiracy between two or more persons (42 USC 1985). Section 1985 cannot be used to remedy conduct that is covered by another federal law that provides a comprehensive and exclusive remedial scheme.

When is an individual acting under color of state law? Whether or not discriminatory conduct is state action generally turns on whether the state has so involved itself with a private employer that it must be considered a joint participant in the conduct. When Section 1983 is applicable, it applies to any classification that denies equal protection of the law.

Historically, the 1871 Act was viewed as requiring state action. In 1971, the US Supreme Court recognized that Section 1985 could apply to private conspiracies based on race. Conspiracies based on other protected classes may still require state action because the civil rights laws were passed pursuant to the Fourteenth Amendment, which relates to states' conduct. In a 1998 opinion, the US Supreme Court recognized that Section 1985(2) could apply to private conspiracies to intimidate or retaliate against a witness in federal court proceedings by terminating his or her at-will employment relationship.

Posting requirement: No.

Remedies: Legal and equitable relief; unlimited compensatory and punitive damages.

Enforcement mechanism: Civil lawsuit, jury trial. However, an action under Section 1985 is not available if another federal law provides a comprehensive and exclusive remedy, such as Title VII, the Equal Pay Act or the Age Discrimination in Employment Act.

Administering agency: None.

UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT ACT OF 1994

Employer coverage: All civilian employers.

Number of employees: No minimum.

Extraterritorial application: Not addressed in statute.

Scope of law: Prohibits employment discrimination because of past, current, or future military obligations . Provides military leave and reemployment rights.

Is the ban on discrimination separate from any right of reemployment eligibility? The protection from discrimination is completely separate from the right to reemployment for eligible persons following military service. Consequently, reemployment eligibility is not a prerequisite to discrimination protection.

What if an employer has other reason's for its action? When a motivating factor for an employer's adverse employment action is an individual's past, present or future connection with service, the employer can avoid liability only by proving that it would have taken the same action regardless of the individual's connection with the service. Liability is possible when service connection is just one of several reasons for the action. To avoid liability, the employer must prove that a reason other than service connection would have been sufficient to justify its action.

Posting requirement: No.

Remedies: Equitable and injunctive relief; damages in the amount of lost wages and benefits, which are doubled for willful violations. Compliance may be required, which includes reinstatement.

Enforcement mechanism: Civil lawsuits. Federal agency employees' claims are adjudicated before the Merit Systems Protection Board.

Administering agency: Veterans Employment and Training Service, Department of Labor.

VIETNAM ERA VETERANS' READJUSTMENT ASSISTANCE ACT OF 1974

Employer coverage:Section 4212: Public and private contractors and subcontractors holding contracts with the federal government worth $25,000 or more for the procurement of personal property and nonpersonal services (including construction). Section 4214: Federal agencies.

Number of employees: No minimum; 50 employees plus a contract worth $50,000 or more triggers a requirement for a written Affirmative Action Plan (41 CFR 60-250.40(a)).

Extraterritorial application: Generally no. Work outside of the US by employees who were not recruited in the US is excepted by waiver (41 CFR 60-250.4(a)(3)).

Scope of law: Protects qualified disabled veterans, veterans of the Vietnam era, recently separated veterans (within one year), and other veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized from employment discrimination and requires affirmative efforts to employ and advance them. Covered contracts/subcontracts must include an affirmative action clause and contractors/subcontractors must list all job openings with local state employment service offices (41 CFR 60-250.5).

Posting requirement: Yes.

Remedies: Withholding of contract payments, termination of contracts, debarment from future contracts; make whole remedies, including reinstatement and back pay (41 CFR 60-250.65(a) and 41 CFR 60-250.66). Appropriated funds cannot be used for contracts with entities that do not meet the veterans' employment reporting requirements (31 USC 1354).

Enforcement mechanism: Administrative enforcement with resort to the courts through the Attorney General in instances where denial of further contract work might be ineffective; no private right of action (41 CFR 60-250.65).

Administering agency: Office of Federal Contract Compliance Programs, as part of the Employment Standards Administration, Department of Labor.

IMMIGRATION REFORM AND CONTROL ACT OF 1986

Employer coverage: All employers.

Number of employees:

Hiring of unauthorized workers: No minimum

National origin discrimination: 4 to 14

Citizenship discrimination: 4 or more

Extraterritorial application: No, but extends to employment on a US vessel or aircraft that touches a port in the US.

Scope of law: Bans the hiring of unauthorized workers . Requires verification of employment eligibility on Form I-9 and prohibits documentation discrimination . Bans discrimination in hiring or discharge on the basis of national origin and citizenship status . Employers may give preference to a citizen over a noncitizen if the two candidates are equally qualified.

Posting requirement: No.

Remedies:Discrimination/unlawful employment: Cease and desist order and other remedial action, including compliance with the verification requirements for up to three years, retention of applicants' names and addresses for up to three years, hiring of adversely affected individuals with or without back pay, posting of notices, education of all personnel, removal of false performance reviews or warnings from an employee's personnel file, and lifting of work restrictions. Discrimination charges based on the same set of facts cannot be filed under both IRCA and Title VII.

Civil penalties per unauthorized alien hired/referred or individual discriminated against range from $250 to $2,000 for a first violation, $2,000 to $5,000 for a second violation, and $3,000 to $10,000 for three or more violations.

Pattern or practice violations: Offenders who demonstrate an intent to evade the law by engaging in a pattern or practice of employment, recruitment, or referral of unauthorized aliens face fines of up to $3,000 per alien and imprisonment of up to six months for the entire pattern or practice violation.

Document fraud: Cease and desist order. Civil penalties per document range from $250 to $2,000 for a first violation and $2,000 to $5,000 for two or more violations.

Paperwork noncompliance: Civil penalties per individual range from $100 to $1,000.

Enforcement mechanism: Administrative enforcement.

Administering agency: Immigration and Naturalization Service, Department of Justice and the Department of Labor's Office of Federal Contract Compliance Programs (eligibility verification); Office of the Special Counsel, Department of Justice (discrimination).

TITLE VI, CIVIL RIGHTS ACT OF 1964

Employer coverage: Public and private employers receiving federal financial assistance.

Number of employees: No minimum.

Scope of law: Prohibits discrimination on the basis of race, color, or national origin in programs or activities receiving federal financial assistance. Title VI's applicability to employment practices is limited to those programs in which a primary objective of the federal financial assistance is to provide employment (42 USC 2000d-3). Receipt of such aid triggers coverage over all of an entity's operations.

Posting requirement: Yes.

Remedies: Termination of federal assistance after notice to the recipient and failure of efforts to secure voluntary compliance. The decision to cut off aid is within the discretion of the federal agency that extends the funds.

Enforcement mechanism: Agency determinations coordinated through the Office of the Attorney General. Judicial review is available. Individuals presumably have a right to court action to obtain relief from discriminatory practices, but they must show intentional discrimination in order to obtain more than a declaration of their rights or an order stopping the offending practices.

Administering agency: The federal agency or department that extends financial funds.

TITLE IX, EDUCATION AMENDMENTS OF 1972

Employer coverage: Broad institution-wide coverage of public and private educational institutions receiving federal financial assistance.

Number of employees: No minimum.

Scope of law: Bars intentional sex discrimination in education programs and activities receiving federal financial assistance.

Posting requirement: Yes.

Remedies: Termination of federal funding; injunctive relief; monetary damages.

Enforcement mechanism: Administrative action with judicial review. There may be an implied right of action by private individuals; however, the Fifth Circuit has held that Title VII provides an exclusive remedy for employment discrimination on the basis of sex in federally funded educational institutions.

Administering agency: Each agency extending federal financial assistance to educational programs and activities.

AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1975

Employer coverage: Public and private employers who receive federal financial assistance under the Job Training Partnership Act.

Number of employees: No minimum.

Scope of law: Prohibits discrimination on the basis of age (no age-40 requirement) in programs and activities receiving federal financial assistance. Application to employment is limited to those programs or activities under the Job Training Partnership Act. Coverage was made institution-wide by the Civil Rights Restoration Act of 1987.

Posting requirement: No.

Remedies: Termination of federal funding.

Enforcement mechanism: Administrative; individuals may bring court action.

Administering agency: Each agency administering federal funding.

EXECUTIVE ORDER 11246

Employer coverage: Private employers and state/local governments who have federal contracts worth more than $10,000.

Number of employees: No minimum; 50 employees plus a contract worth $50,000 or more triggers a requirement for a written Affirmative Action Plan (41 CFR 60-2.1).

Extraterritorial application: Generally no. Work outside of the US by employees who were not recruited in the US is excepted by waiver (41 CFR 60-1.5(a)(3); 41 CFR 60-1.10).

Scope of law: Requires contractors and subcontractors to refrain from employment discrimination on the basis of race, color, religion, sex or national origin and to take affirmative action with regard to hiring and advancement of minorities and women (41 CFR 60-1.4;41 CFR 60-2.1). Contractors for federally-aided construction projects have the additional obligation of being bound by the equal opportunity clause with respect to all of their own employment practices while participating in construction work under the contract (41 CFR 60-1.4)).

Posting requirement: Yes.

Remedies: Back pay and other make-whole relief; withholding of payment or termination of contract, debarment from receiving future contracts (41 CFR 60-1.26(a)(2); 41 CFR 60-1.27).

Enforcement mechanism: Generally enforcement of systemic discrimination; individual complaints referred to the EEOC. Administrative proceedings. Labor Department may refer a case to the Justice Department for investigation and judicial action; no private right of action (41 CFR 60-1.26).

Administering agency: Office of Federal Contract Compliance Programs.

GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008

GINA’s employment discrimination provisions take effect on November 21, 2009.

Employer coverage: Generally both private and public employers as defined by the Civil Rights Act of 1964 and specified federal government employees.

Number of employees: 15 or more

Scope of law: Bans discrimination in all areas of the employer-employee relationship on the basis of an employee’s genetic information (the individual’s or a family member’s genetic tests or manifestation of a disease or disorder in family members of the individual).

Posting requirement: No.

Remedies: As are available under Title VII of the Civil Rights Act.

Enforcement mechanism: As provided by Title VII of the Civil Rights Act of 1964.

Administering agency: Equal Employment Opportunity Commission.

<p>The discrimination laws are designed to require that all persons be given equal opportunity in employment.</p>

What do the discrimination laws require?

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