Workplace Discrimination and Retaliation Are Illegal – Tips For Startup Owners

As an old legal principle goes, "Ignorance of the law is no excuse." As I sat in a strategic planning meeting with the partners of a small business that had been experiencing a moment of tremendous financial growth, I've picked up on a few settle remarks about the employees' hiring practices. None of the comments were made with an intent to hurt anyone specifically, but they were certainly enough for me to pick up on the potential issues that could negatively impact not only that company culture but also its bottom line. It is not unusual for a small business owner to expresses his or her passion for the values of the company or their personal biases, but in the face of the law, it could be detrimental to that company survival. So to prevent this from happening, take a couple of minutes to read this article and protect your business from a disastrous fall. As leaders of a company (no matter the size), we are not excused from following the laws related to hiring and management practices.

Are you planning to grow a company that will have 15 or more employees? If yes, know the law!

Invest time in understanding what is legal or illegal when it comes to hiring, recruiting, and managing employees. If you opened your own business in the U.S. because of your expertise in a certain field but unfamiliar with employment laws, start with visiting U.S. Equal Employment Opportunity Commission (EEOC) and United States Department of Labor websites. When an explanation of laws become murky, hire a lawyer who is familiar with labor laws. Human Resources practitioners can advise you about these laws as well in order to protect your organization from law suites.

Since I am not a lawyer, I will provide you with more links to review the specific details about various labor laws at the end of this article. Here, I want to give you, a small business owner, just a few realistic examples of the situations that can happen in the workplace. To view some of the real EEOC cases, click HERE. Beware of the common pitfalls to avoid litigation and lose a lot of your hard-earned money in the process.

How Well Do You Know The Law?

1. Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352) (Title VII) prohibits employment discrimination based on race, color, religion, sex and national origin. This act applies to hiring and firing practices. Avoid the temptation to retaliate against a person who complained against discrimination or filed charges against your company. It is illegal!

A scenario applicable to Title VII of the Civil Rights Act of 1964

The group of African-American employees was excluded from the assignments that required interactions with the external clients. They performed administrative and back-office tasks. The entire customer-facing sales force consisted of races other than African-American. When the qualified employee from the African-American group had applied for a sales position, he didn’t get hired. After not receiving a satisfactory response as to why he hadn’t been hired, he filed a complaint with EEOC. Shortly after, he noticed that the manager was addressing his performance shortcomings more frequently, although the performance output didn’t change since before the complaint filing. Later he got fired.

The situation conflicts with Title VII of the Civil Rights Act of 1964, as it is unlawful to discriminate against people based on their race and to keep protected groups from communicating with the customers. AND, It is unlawful to retaliate against an employee who files against discrimination (U.S. Equal Employment Opportunity Commission, 2017a).

2. Age Discrimination in Employment Act of 1967 (ADEA) protects people who are 40 or older from discrimination because of age. It is illegal to retaliate against a person because the person complained or filed charges about discrimination.

A scenario applicable to Age Discrimination in Employment Act of 1967 (ADEA)

The experienced 48-year-old office assistant who had consistently received good reviews from a manager was laid off from her job after 15 years of employment. She later found out from the former peers that her boss had made comments in the team meeting about her being too old to keep up with the changes. She filed the age discrimination complaint with EEOC. The careless comments by the manager were pointed at a former employee’s age.

It is unlawful to discriminate and let go of a person based on age, which includes people who are 40 years and older, based on Age Discrimination in Employment Act (U.S. Equal Employment Opportunity Commission, 2017a). This law applies to “hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment” (United States Department of Labor, 2017a, para.2)

3. Title I of the Americans with Disabilities Act of 1990 (ADA) makes it illegal to discriminate against a qualified person with a disability in the private sector and in state and local governments. Similar to all other labor laws, retaliation against those who complained or filed a lawsuit is illegal. Employers require to provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer's business.

A scenario applicable to Americans with Disabilities Act of 1990 (ADA)

The medically-diagnosed diabetic employee requested two extra short breaks during the shift to ensure that the insulin levels and blood sugar were monitored. He wasn’t allowed to have food at his desk, but was required to eat frequently throughout the day. The supervisor refused to accommodate his request for extra breaks and stated that the policy allowed employees to eat food in the break room only during two fifteen-minute breaks. The employee with the disability had filed a complaint with EEOC and soon got laid off from a job.

The situation conflicts with the American with Disabilities Act. An employer has to provide reasonable accommodations and cannot retaliate due to the filed complaint (U.S. Equal Employment Opportunity Commission, 2017a).

5. Equal Pay Act (EPA) makes it illegal to pay different wages to men and women if they perform equal work in the same workplace.

A scenario applicable to Equal Pay Act (EPA)

The two Leadership Board members had 20 years of experience. They led similar size organizations, managed budgets and projects, and put the same amount of effort into accomplishing goals. The responsibility included making final sign-offs on new contracts. The white female leader had a company car and a higher salary. The African-American male counterpart had no car and was paid a lesser salary.

Under EPA, it is the violation of the law, because both male and female working for the same organization, with the same skill, putting very similar efforts, and having the same accountability, have to be equally compensated and can’t be discriminated (U.S. Equal Employment, 2017). Title VII prohibits discrimination in pay and benefits based on sex. Because of different races involved, the situation also violates Title VII, the ADEA, and the ADA laws preventing discrimination based on race and color (U.S. Equal Employment, 2017).

6. Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits discrimination against employees or applicants because of genetic information.

A scenario applicable to Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)

The job applicant was asked by the HR Manager to get genetic testing done before getting hired. A manager explained that this testing was a must, as the company needed to maintain low healthcare costs for all their employees. The applicant declined to proceed with the testing and didn’t get hired.

This is a violation under GINA, because employers are prohibited to ask current or potential employees to provide genetic information, as it might reveal high risks of a serious illness. It is illegal to discriminate against them by using this information in making employment decisions. This applies to an employee and family members (U.S. Equal Employment Opportunity Commission, 2017b).

Closing

There are lots of other laws and protections that aren't mentioned here but, as promised in the beginning, here are some valuable links for you to learn more. When in doubt, consult with a professional. It will save you money and a lot of headaches.

References

U.S. Equal Employment. (2017). Equal Pay/Compensation Discrimination. Retrieved from www.eeoc.gov: https://www.eeoc.gov/laws/types/equalcompensation.cfm

U.S. Equal Employment Opportunity Commission. (2017a). Laws Enforced by EEOC. Retrieved from www.eeoc.gov: https://www.eeoc.gov/laws/statutes/index.cfm

U.S. Equal Employment Opportunity Commission. (2017b). Genetic Information Discrimination. Retrieved from www.eeoc.gov: https://www.eeoc.gov/laws/types/genetic.cfm

U.S. Equal Employment Opportunity Commission. (2017c). National Origin Discrimination. Retrieved from www.eeoc.gov: https://www.eeoc.gov/laws/types/nationalorigin.cfm

United States Department of Labor. (2017a). Age Discrimination. Retrieved from www.dol.gov: https://www.dol.gov/general/topic/discrimination/agedisc. , para.2

United States Department of Labor. (2017b). FMLA (Family & Medical Leave). Retrieved from www.dol.gov: https://www.dol.gov/general/topic/benefits-leave/fmla

United States Department of Labor. (2017c). Sexual Harassment. Retrieved from www.eeoc.gov: https://www.eeoc.gov/laws/types/sexual_harassment.cfm

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