Basis For Discrimination
Racial discrimination is present when people are treated differently than others who are similarly situated because they are members of a specific race. It can occur when individuals are treated differently because of unalterable characteristics, such as physical features, indigenous to their race. The courts have also found that racial discrimination in employment can occur when employees are treated differently than other employees similarly situated because of their interracial dating or marriages, racially oriented expression of attitudes and beliefs, and/or membership in racially oriented groups.
The courts have been careful to state that minority races are not the sole victims of discrimination. Whites, if treated differently than others, who are similarly situated, have also been found to have been discriminated against.
The Department of Defense Directive dated May 21, 1987, defines racial categories as:
- American Indian or Alaskan Native
- A person having origins in any of the original people of North America, and who maintains cultural identification through community recognition or tribal affiliation.
- Asian or Pacific Islander
- A person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent. or the Pacific islands. This area includes, for example, China, India, Japan, Korea, the Philippine Islands, and Samoa.
- Black not of Hispanic Origin
- A person having origin in any of the black racial groups of Africa. Does not include persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish cultures or origins (see Hispanic).
- A person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin. Does not include persons of Portuguese culture or origin
- White, not of Hispanic origin
- A person having origins in any of the original peoples of Europe, North Africa or the Middle East. Does not include persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish cultures or origins (see Hispanic). This category also includes persons not included in other categories.
Color discrimination occurs when individuals are treated differently than others who are similarly situated because of the color of their skin. This is a separately identifiable type of discrimination which can also occur in conjunction with race discrimination. Color discrimination can also occur in the absence of race discrimination when members of the same race are treated differently because of their skin color. In Felix V. Manquez, 24EPD 279 (D.C.D.C. 1980), the court held that color discrimination is actionable under Title VII. The Court origins stated that in view of the mixture of race and ancestral origins in Puerto Rico, where the defendant employee was located, color was the most practical claim to present.
Color discrimination also exists when all brown skinned persons are treated differently than persons of other color regardless of the race of the brown -skinned person. Example: The employer does not hire anyone darker than cafe au lait (coffee with cream), but does hire light-skinned and/or White persons of all races.
Religious discrimination occurs when an employment rule or policy requires a person to either violate a fundamental precept of his or her religion or lose an employment opportunity. The definition of "religion" is not restricted to the orthodox denominations. Since the provisions under religion include a lack, of belief, atheists are also covered. The coverage under religion includes all aspects of religious observances and practices as well as belief.
The Equal Employment Opportunity Commission (EEOC) Guidelines "do not confine the definition of religious practices to atheistic concepts or to traditional religious beliefs. Under the Guidelines, a belief is religious not because a religious group professes that belief, but because the individual sincerely holds that belief with the strength of traditional religious views." The coverage is not limited to worship, but also includes other obligations of church members, such as attendance at church-related business meetings by a minister.
An organization has the obligation to provide reasonable accommodations for the religious practices of an employee or prospective employee unless to do so would create an undue hardship. An organization also has to reasonably modify a uniformly applied rule or policy to accommodate the religious needs of employees or applicants.
Discrimination of the disabled occurs when an employee or applicant is treated differently on the basis of a disability condition. It can also happen when an organization fails to make reasonable accommodation for qualified disabled employees and applicants who are able to meet the requirements of the position through reasonable assistance or modification.
A disabled person is defined as one who has a physical or mental impairment that substantially limits one or more of such person’s major life activities, has a record of such impairment, or is regarded as having such an impairment.
Physical or mental impairment means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine, or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
Major life activities include (but are not limited to) functions such as caring for oneself, performing manual tasks, walking, seeing, standing, hearing, speaking, breathing, learning, and working.
Has a record of such an impairment, means has a history of, or has been classified (or misclassified) as having a mental or physical impairment that substantially limits major life activities.
Certain disabilities are defined by the Equal Employment Opportunity Commission as "targeted disabilities". Generally, individuals with these disabilities have greater difficulty being hired.
TOTAL DEAFNESS IN BOTH EARS, WITH UNDERSTANDABLE SPEECH
TOTAL DEAFNESS IN BOTH EARS, AND UNABLE TO SPEAK CLEARLY
INABILITY TO READ ORDINARY SIZE PRINT, NOT CORRECTABLE BY GLASSES
BLIND IN BOTH EYES
MISSING EXTREMITIES - ONE ARM
MISSING EXTREMITIES - ONE LEG
MISSING EXTREMITIES - BOTH HANDS OR ARMS
MISSING EXTREMITIES - BOTH FEET OR LEGS
MISSING EXTREMITIES - ONE HAND OR ARM AND ONE FOOT OR LEG
MISSING EXTREMITIES - ONE HAND OR ARM AND BOTH FEET OR LEGS
MISSING EXTREMITIES - BOTH HANDS OR ARMS AND ONE FOOT OR LEG
MISSING EXTREMITIES - BOTH HANDS OR ARMS AND BOTH FEET OR LEGS
PARTIAL PARALYSIS - BOTH HANDS
PARTIAL PARALYSIS - BOTH LEGS, ANY PART
PARTIAL PARALYSIS - BOTH ARMS, ANY PART
PARTIAL PARALYSIS - ONE SIDE OF BODY, INCLUDING ONE ARM AND ONE LEG
PARTIAL PARALYSIS - THREE OR MORE MAJOR PARTS OF THE BODY, ARMS AND LEGS
COMPLETE PARALYSIS - BOTH HANDS
COMPLETE PARALYSIS - ONE ARM
COMPLETE PARALYSIS - BOTH ARMS
COMPLETE PARALYSIS - ONE LEG
COMPLETE PARALYSIS - BOTH LEGS
COMPLETE PARALYSIS - LOWER HALF OF BODY, INCLUDING LEGS
COMPLETE PARALYSIS - ONE SIDE OF BODY, INCLUDING ONE ARM AND ONE LEG
COMPLETE PARALYSIS - THREE OR MORE MAJOR PARTS OF THE BODY(ARMS AND LEGS)
MENTAL RETARDATION (A CHRONIC AND LIFELONG CONDITION INVOLVING A LIMITED ABILITY TO HEAR ,TO BE EDUCATED, AND TO BE TRAINED FOR USEFUL PRODUCTIVE EMPLOYMENT AS CERTIFIED BY A STATE VOCATIONAL REHABILITATION AGENCY)
MENTAL OR EMOTIONAL ILLNESS (A HISTORY OF TREATMENT FOR MENTAL OR EMOTIONAL PROBLEMS)
Age discrimination is present if an individual covered under this provision is treated unfavorably in the terms and conditions of his/her employment. The Age Discrimination in Employment Act (ADEA) forbids discrimination based on age for those individuals between the ages of 40 and 70. However, in the Federal sector there is no upper age boundary. In this case, the law covers everyone 40 and older. An individual is also covered when an employer discriminates in hiring, firing, wage benefits, hours worked, and availability of overtime based on age.
Both individuals can be over age 40. For instance, a person age 55 years of age can claim another individual who is 42 years old is discriminating against him because of age.
THE ONE EEO LAW THAT EVENTUALLY COVERS EVERYONE
Discrimination because of race, national origin, religion, sex, and physical or mental handicap, by definition affects only a limited number of people. But the Age Discrimination in Employment Act (ADEA ) sooner or later affects every member of every group who reaches the age of 40.
There are a number of reasons why age discrimination has become such an important and difficult problem for supervisors, managers, and their employees:
- It is broad in coverage, protecting anyone from 40 to 70 years old who works for an employer with 20 or more employees (Federal sector has no upper age limit).
- It covers those who, because they are older," know the ropes". In other words, they are a lot more sophisticated about who is being promoted, trained, or let go, and why.
- It is the only protection, and therefore the only way a very large group of people, mostly white males as well as many others, can fight for a job.
- Age discrimination cases can cost an employer a fortune. The ADEA offers the option of having a jury hear the case. Jurors are older, on the average, than the general population. The number and size of settlements in age cases indicate that juries are sympathetic to those who sue.
National origin discrimination has been broadly defined as including, but not limited to, the denial of equal employment opportunity because of an individual's or his/her ancestor’s country of origin or because an individual has the physical, cultural, or linguistic characteristics of a particular national origin group.
On December 29, 1980, the EEOC published its guideline on Discrimination Because of National Origin in the Federal Register, Vol. 45 No. 250. In these guidelines, the Commission defined national origin discrimination "as including, but not limited to, employment discrimination because of an individual’s, or his or her ancestor’s place of origin, or because of an individual's physical, cultural, or linguistic characteristics." The Commission noted that physical characteristics, such as facial features, are often the most obvious basis for national origin discrimination.
The Commission indicated that it examined with particular concern charges alleging that individuals within the jurisdiction of the Commission have been denied equal employment opportunity for reasons that are grounded in national origin considerations such as:
- Marriage to or association with persons of a national origin group.
- Membership in or association with an organization identified with or seeking to promote the interest of national origin groups.
- Attendance or participation in schools, churches, temples, or mosques, generally used by persons of a national origin group.
- An individual’s name or spouse’s name that is associated with a national origin group.
In examining these charges, the Commission will apply general Title VII principles such as disparate impact. Thus, it would be unlawful national origin discrimination for an employer to disparately treat an employee who it thought was associated with a certain national origin because the employee's spouse belonged to that national origin group.
ABILITY TO SPEAK ENGLISH
Employers who require that their employees be able to speak English must show that fluency in English is a bona fide occupational qualification or a business necessity, for the position in question. Further, an employer’s rule which require employees to speak English at all times, including during their work break and lunch time, is one example of an employment practice which discriminates against persons whose primary language is not English.
However, an employer may require employees to speak only English at certain times and this would not be discriminatory, if the employer shows that the rule is justified by business necessity. The employer must clearly inform its employees of the general circumstances under which they are required to speak only English and the consequences of violating the rule.
EEOC Guidelines on Discrimination because of National Origin 1606.8 read as follow:
- The Commission has consistently held that harassment on the basis of national origin is a violation of Title VII. An employer has a duty to maintain a working environment free of harassment on the basis of national origin.
- Ethnic slurs and other verbal or physical conduct relating to an individual's national origin constitute harassment when this conduct:
- Has the purpose or effect of creating an intimidating, hostile or offensive working environment.
- Has the purpose or effect of unreasonably interfering with an individual’s work performance.
- Otherwise adversely affects an individual's employment opportunities.
HEIGHT AND WEIGHT REQUIREMENTS
In order to establish that an employer's height and/or weight requirements constitute national origin discrimination under Title VII, the plaintiff must show that these requirements have an adverse impact on persons of his or her national origin The employer then has the burden of showing that the height and/or weight requirements are reasonable and necessary to the function of the particular job.
Sex discrimination cases may be brought under the two different theories of disparate treatment and disparate impact.
A disparate treatment case involves an organization’s policy which treats similarly situated men and women differently. In a disparate impact case, an individual must show that the organization’s policy has a disproportionate adverse impact on persons of one gender. The organization then has the burden of showing a business necessity for the rule.
The Equal Employment Opportunity Commission’s guidelines concerning "Sex Plus" considerations state that an organization’s rules which forbid or restrict the employment of married women and not married men is discrimination. It reasoned that even though the rule was not directed at all females, the gender of the individual was a factor in the application of the rule. Further, all written or unwritten employment practices or policies which exclude applicants or employees from employment opportunity because of pregnancy, childbirth or related medical conditions are prima facie violations of Title VII.
The Bona Fide Occupational Qualification (BFOQ) contained in Title VII allows an organization to hire and employ individuals on the basis of their qualifications reasonably necessary to the normal operation of that particular business or enterprise. Examples are men attendants in a men’s lavatory, and women attendants in a women's lavatory.
Sexual Harassment is a form of sex discrimination. Sexual harassment is deliberate or repeated unsolicited and unwelcome verbal comments, gestures, or physical contact of a sexual nature in a work place or work-related environment.
Sexual harassment is prohibitive and unacceptable conduct at the managerial, supervisory, or employee levels and will not be condoned in any form. It undermines the integrity of the employment relationship. All employees must be allowed to work in an environment free from unsolicited and unwelcome sexual overtures. Sexual harassment debilitates morale and interferes in the work productivity of victims and co-workers.
Sexual harassment is a prohibited personnel practice when it results in discrimination for or against an employee on the basis of conduct not related to performance (i.e., the taking or refusal to take a personnel action, including promotion of employees who submit to sexual advances, or refusal to promote employees who resist or protest sexual overtures).
Within the Federal government, a supervisor who uses implicit or explicit coercive sexual behavior to control, influence, or affect the career, salary, or job of an employee is engaging in sexual harassment. Similarly, an employee of an agency who behaves in this manner in the process of conducting agency business is also engaging in sexual harassment.
Finally, any employee who participates in deliberate or repeated unsolicited verbal comments, gestures, or physical contact of a sexual nature that is unwelcome and interferes in work productivity is also engaging in sexual harassment.
A complaint may be filed by an individual who alleges restraint, interference, coercion, discrimination or retaliation for raising an allegation of discrimination; or for representing one who has alleged discrimination; or for acting as an EEO official in processing such complaints.