Discrimination and Retaliation

The discrimination laws generally cover discrimination on the basis of age, sex, race, color, national origin, religion, and covered disability. The laws protect employees from a variety of adverse actions, from hiring, through pay and advancement opportunities, through termination of employment, and even post-employment retaliation.

There are several different laws at the federal level that address discrimination, and the things they cover and the proof required varies.  An important aspect that they share in common, however, is the standard for holding an employer liable.  Not all employer actions are covered by the discrimination laws.  Significantly, however, the protections against retaliation may apply even if the employer’s actions are not prohibited.

he Age Discrimination in Employment Act of 1967 (“ADEA”) provides protection to individuals age forty (40) and older from discrimination in the work place. It applies to all employers with twenty (20) or more employees. Although the ADEA protects you from discrimination on the basis of age, it does not make unlawful discrimination on the basis of other traits that some people consider to be closely linked with age. For example, laying off employees on the basis of their high salaries does not necessarily constitute age discrimination just because it naturally affects older employees. Nor does the law require employers to allow older employees extra training or to bump younger employees just to keep an older employee on the payroll even if the older employee has been loyal and performed in an excellent manner. Rather, it prevents employers from using age as a basis for employment decisions, or from using other factors as a cover (i.e. proxy) for age discrimination.

Title VII of the Civil Rights Act of 1964 applies to employers with fifteen or more employees and makes discrimination (including harassment) on the basis of sex, race, color, national origin, and religion unlawful with respect to all aspects of employment. “Harassment” based on these protected classes is covered under a separate topic.

Discrimination on the basis of pregnancy is a form of sex discrimination and is summarized in the Family, Health, and Leave Issues topic.

“Reverse discrimination” is a misleading term that refers to discrimination against non-minorities. The term is misleading because Title VII forbids discrimination on the basis of race, sex, national origin, color, or religion regardless of the group to which the person belongs. In other words, white persons are protected just as black employees are. And men are protected to the same extent as women. Gender and racial identity may not be the determining factors in employment decisions.

Title VII establishes two separate requirements with respect to religion. First, employers may not discriminate against employees because of their religious beliefs. Title VII also requires that employers make reasonable accommodations to the religious beliefs of its employees, unless such accommodations would pose an undue burden on the employer.
Individuals who want to bring a claim under either Title VII or the ADEA must first file a charge of discrimination with the South Carolina Human Affairs Commission or the Equal Employment Opportunity Commission. Generally, there is a 300-day time deadline for filing such claims for employees in the private sector. These requirements also apply to the Americans with Disabilities Act (ADA) that is described in the Family, Health, and Leave Issues topic, but do not apply to Equal Pay Act claims.

Victims of race discrimination also may seek relief under another federal law that has several advantages over suing under Title VII. A post-Civil War era law, called “Section 1981,” does not require an individual to file a charge of discrimination first with the EEOC and there is no limitation on punitive damages in the law itself. Also, the time limit for filing cases under Section 1981 is much longer than the limits under Title VII.

In addition to the protections of Title VII, there is another statute that was enacted before Title VII that still exists to require equal pay for equal work between the sexes. The Equal Pay Act of 1963 prohibits discrimination in compensation on the basis of sex. To prove an Equal Pay Act claim, an employee has the burden of proving that she is being paid less than a member of the opposite sex to perform a job requiring:

  1. equal skill (includes such factors as experience, training, education, and ability);
  2. equal effort (the amount of physical or mental exertion required to perform the job);
  3. equal responsibility (the degree of accountability required, with emphasis on the importance of the job obligation); and
  4. similar working conditions (e.g. office vs. plant, inside vs. outside).

As noted above, the Americans With Disabilities Act (ADA) is summarized in the Family, Health, and Leave Issues topic.

The protections against retaliation protect employees, and even former employees, who participate in internal complaints (e.g. complaints to supervision or management) or external complaints (e.g. EEOC or South Carolina Human Affairs Commission) about discrimination or harassment.  These protections are so strong, for example, that they protect employees or former employees even if the initial complaint did not involve something that rose to the level of a discriminatory or harassing act.

To discuss your questions about discrimination and retaliation, contact an employment discrimination lawyer.