What Can You Do About Illegal Employment Discrimination?

We all make “discriminating” choices every day. To be discriminating simply means we distinguish one thing from another, and/or choose one thing over another. There are all kinds of reasons we are discriminating in the many choices we have to make on a daily basis. We all want to try to do what is in our own best interest, and in the best interest of those we know and love.

The word “discriminate,” in and of itself, is not a bad word. When we choose one plumber over another, for example, we’re making a discriminating choice. When we choose one cell phone company over another, one computer system over another, or Sean Jean over L.L. Bean. But these are personal choices that we make that do not personally involve other people. You and I have a right, and either personal and/or business reasons to choose which plumber we want to use to fix our plumbing, which designer's clothing we choose to wear, and which mobile provider we will patronize for our personal communication needs. In all of these instances, there is nothing wrong with being discriminating in our choices.

So when does discriminating become something negative? In the employment arena, it is a negative occurrence when referring to the wrongful act of distinguishing, illicitly, among potential employees; judging/treating/evaluating an applicant "less favorably" based on reasons having nothing at all to do with the position he or she is applying for, or on his/her ability to perform well in the position.

To find out whether a particular firm is committing illegal employment discrimination against all or most applicants within a specific category or group, comparisons would have to be made. To facilitate these comparisons within firms, employers are required to report to the government the numbers of minorities and women their firm employs in each of nine categories: officials and managers, professionals, technicians, sales workers, office and clerical workers, skilled craftsmen, semiskilled operatives, unskilled laborers, and service workers.

Employment discrimination in the United States is illegal. Federal laws have been passed for the purpose of keeping the workplace free of criminal offenses related employment. Some of these include:

• Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate based on color, race, religion, sex or national origin, when making employment-related decisions.
• The Age Discrimination in Employment Act of 1967 makes it illegal to discriminate against individuals 40 years old or older.
• The Equal Pay Act of 1963 (EPA), makes gender-based wage discrimination illegal, protecting equality of wages for those who perform substantially equal work in the same establishment.
• The Civil Rights Act of 1991 makes it possible to sue for monetary damages in cases of intentional employment discrimination.
• Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), prohibit employment discrimination against qualified individuals with disabilities in the private sector as well as in state and local governments; sections 501 and 505 of the Rehabilitation Act of 1973 prohibit discrimination against qualified individuals with disabilities, who work in the federal government.
• Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), prohibits employment discrimination based on genetic information about an applicant, employee, or former employee.

Employeerightspost.com is a great website for keeping up on the latest news in employee rights, equal rights, civil rights, and more, including articles on employment discrimination law and practices.

Under these laws, it is considered a "discriminatory practice" to:

• harass someone on the basis of race, color, religion, sex, national origin, disability, genetic information, or age.
• retaliate against someone for filing a charge of discrimination, participating in an investigation, or opposing one or more discriminatory practices.
• base employment decisions on stereotypes or on assumptions made about the abilities, traits, or performance of someone based on gender, race, age, religion, ethnic group, or real or perceived disability, or on myths or assumptions about an individual's genetic information.
• deny employment opportunities to someone because he or she is married to, or associated with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discriminating against someone based on participation in schools or places of worship associated with a particular racial, ethnic, or religious group.

Under Title VII, the ADA, GINA, and the ADEA, it is illegal to discriminate in any aspect of employment, including:

• hiring and firing;
• compensation, assignment, or classification of employees;
• transfer, promotion, layoff, or recall;
• job advertisements;
• recruitment;
• testing;
• use of company facilities;
• training and apprenticeship programs;
• fringe benefits;
• pay, retirement plans, and disability leave; or
• other terms and conditions of employment.

Two of the factors most often cited among employment discrimination cases, historically, have been those of race and gender, and sometimes, both. These factors have been singled out and have been accompanied by more widespread and impassioned support, and with more uproar, than many of the other factors that have been the basis of discriminatory practices.

Is illegal discrimination a thing of the past? For the purpose of analysis, it is important to keep separate the ethical issues raised by policies aimed at preventing individuals from intentionally discriminating against other individuals from issues raised by the use of affirmative action policies that are aimed at achieving proportional representation for all within American business institutions.

Historically, our nation has often tolerated large discrepancies between our ideals and reality. The ancestors of most black Americans living today, for example, were brought to this country as slaves, treated like cattle, and lived out their lives in bondage. As the personal property of a white owner (for 400 years), blacks prior to the Civil War were not recognized as people and consequently had no legal powers, no claims on their bodies or their labors, and were regarded by the Supreme Court in one of its opinions as "beings of an inferior order. . . so far inferior that they had no rights that the white man was bound to respect."

It is also true that through much of the 19th century, white women could not hold office, could not vote, could not serve on juries, nor bring suit in their own names. In fact, a married white female lost control over her property (which was acquired by her husband), she was considered incapable of making binding contracts, and, in a major opinion, she was declared by the Supreme Court to have "no legal existence, separate from her husband, who was regarded as her head and representative in the social state."

Enter Title VII of the Civil Rights Act of 1964, which says: “It shall be unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment opportunities or otherwise adversely affect his status as an employee because of such individual’s race, color, sex, or national origin.”

Discrimination does a lot of damage to the bank accounts of those who are discriminated against. In 1975, blacks earned 64 cents for every $1 whites earned. By 2010, the wage ratio for black men was 75 cents, and Hispanic men 66 cents, for every dollar white men earned (Source: U.S. Census Bureau).

In 1980, for ever $1 men earned, women earned 59 cents, and by 1998, they earned 68 cents for every $1 men earned. By 2010, on average, women were earning 77 cents to a man's dollar, but the disparity was greater for women of color. In 2010 black women were earning 69 cents to every dollar earned by white men, and Hispanic women 59 cents per white-male dollar. Asian women are the exception. They earned, in 2010, 90 cents for every dollar earned by white men--a sum higher than women of all other races/ethnicities.

----------------------------------------A Peek into the Past----------------------------------

In the 1990s, researchers at the Urban Institute conducted social experiments using young White, Black and Hispanic men.

The men were matched in terms of physical characteristics, job experience, energy level, clothing/attire, openness, and articulateness. They were trained in mock interviews to act exactly like each other. Then, they applied for the same jobs in general labor and management trainee positions in manufacturing, hotels, restaurants, retail sales, and office work. The young Black and Hispanic men were offered jobs 50 percent fewer times than the young White males. Why did this happen? If this experiment were to be conducted/duplicated today, do you think the outcome would be a lot different? (To respond, see the poll)

American Broadcasting Company (ABC) conducted a similar experiment where they sent two young blonds, a male, Chris and a female, Julie, to apply for several of the same jobs. Chris kept getting offered management jobs and Julie kept getting offered typing and receptionist jobs. When interviewed about these outcomes, the employers said things such as, “I don’t want a man answering my phone,” or “women don’t do as well in territory manager positions.” The interviewers generally gave Julie typing tests, and gave Chris management aptitude tests. The jobs offered to Julie paid in the range of $6 per hour ($240 per week), while the jobs offered to Chris paid $300-500 per week. Why did this happen? If this experiment were to be conducted/duplicated today, do you think the outcome be a lot different?

Who Can File a Charge of Discrimination?

• Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with EEOC.
• In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity.

How to File a Charge of Employment Discrimination

You can file a charge of employment discrimination by mail or in person at the nearest EEOC office (check your local phone directory under listings for U.S. Government, or Google for location in your town, or in a city near you). You may also call 1-800-669-4000 (voice) or 1-800-669-6820 (TTY) to find/contact the nearest EEOC office. The office will be able to provide you with more information on specific procedures for filing an employment discrimination charge.

If you need accommodations in order to file a charge (such as sign language interpreter, print materials in an accessible format), you (or your representative) should inform the EEOC field office so that appropriate arrangements can be made to accommodate your needs.

If/When you believe there is a need to file a charge against an employer, be sure you are ready to file your complaint. In preparing to file, you will need:

• The complaining party's name, address, and telephone number;
• The name, address, and telephone number of the employer, employment agency, or union that you believe has discriminated, and the number of employees (or union members) who work there, if known.
• A brief description of the alleged violation (the event that caused the person making the complaint to believe that his or her rights were violated).
• The date(s) of the alleged violation(s) or discriminatory acts.

Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

All laws enforced by EEOC, except the Equal Pay Act, require that complaints be filed with the EEOC before a private lawsuit may be filed in court. In addition, there are strict time limits within which charges made against employers must be filed:

• A charge/complaint must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the complainant's rights.
• This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days.
• These time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court. However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.
• To protect legal rights, it is always best to contact EEOC promptly when discrimination is suspected.

(Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.)

After a discrimination charge is filed, the employer named in the charge is notified that the charge has been filed. After notification has taken place, there are a number of ways a charge may be handled:

• Priority investigation. If the initial facts appear to support a violation of law, the case may be assigned for priority investigation. If the evidence for the charge seems weak or not strong, the charge/complaint may be assigned for follow up investigation. This is done in order to determine whether it is likely that a violation has actually occurred.

• Settlement. The EEOC can work to try to settle a charge at any stage of the investigation. If both the complainant/charging party and the employer express an interest in settlement, the EEOC can choose to work towards it. If settlement efforts are not successful, the investigation continues.
• Request for More Information. The EEOC can choose to investigate the charge further if it feels the need to do so. This can involve written requests for information, interviewing people, reviewing documents, and, as needed, visiting the facility where the alleged discrimination occurred. Once the investigation is complete, the EEOC will discuss the evidence with the charging party or employer, as appropriate.
• Mediation. The EEOC may select the case for its mediation program, if both the complainant/charging party and the employer express an interest in mediation. Offered as an alternative to a lengthy investigation, participation in the mediation program is voluntary, confidential, and can only occur with consent from both the complainant/charging party and the employer. When mediation is unsuccessful, the charge is returned for investigation.
• Dismissal. A charge can be dismissed at any point if, in the EEOC's best judgment, it is believed that further investigation will not establish a violation of the law. A charge can even be dismissed at the time it is filed, if an initial in-depth interview produces no evidence to support the claim of discrimination. When a charge is dismissed, a notice is sent in accordance with the law giving the complainant/charging party 90 days to file a lawsuit on his or her own behalf.

(Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.)

"Remedies" refers to the "relief" or compensation that might be available for employment discrimination, whether it was caused by intentional acts or by practices that have a discriminatory effect. Available remedies may include:

• back pay,
• hiring,
• promotion,
• reinstatement,
• front pay,
• reasonable accommodation, or
• other actions that will make an individual "whole" (in the condition s/he would have been but for the discrimination).

Remedies also can include payment of:

• attorneys' fees,
• expert witness fees, and
• court costs.

Compensatory and punitive damages may be available where intentional discrimination is found, under most EEOC-enforced laws. Compensatory damages are those providing a plaintiff/complainant with the monetary compensation that is deemed necessary to replace what was lost, and nothing more. Punitive damages, on the other hand, are those provided as punishment to a defendant based on his or her conduct. Punitive damages are usually assessed as a deterrent to the future commission of such acts.

Damages may be available to compensate for actual monetary losses, for future monetary losses, and for mental anguish and inconvenience. Punitive damages may be available if an employer acted with malice or reckless indifference, but are not available against the federal, state or local governments.

Reference: eeoc.gov