Both federal and state laws weigh-in on this workplace discrimination discussion. Both say that a person cannot suffer an adverse employment action – or even be denied an offer of employment in the first place – based on discriminatory criteria. Under federal law, the anti-discrimination laws include criteria such as:
- National Origin
Michigan anti-discrimination laws are the same, except it adds further criteria:
- Marital status
None of this means that an employer cannot take one of these characteristics into account if it is truly relevant to the job qualification. For example, a casting director for a movie need not interview African-American women if the part calls for a white woman. If a school is hiring a supervisor for the girls’ locker room, they need not interview men. What an employer may not do is to utilize any of these factors as a basis for a hiring decision, firing decision, or other employment action, such as promotions, demotions, pay scales, etc. unless the employer can prove that the basis for the decision is truly a relevant and non-discriminatory one. Thus the casting director does not have to hire a black woman to play a white character, but cannot pay a black woman less than a white woman for the same job.
Age represents a particularly sensitive factor, because the general belief is that an older worker simply cannot or will not perform at the level of a younger one. Thus, the temptation for the employer to believe that age is “relevant” because they want to hire the most energetic employee possible. If the employer is challenged, they need to be able to prove that the younger worker is, in fact, more productive. Perhaps an employer is looking to hire a salesperson to pitch to a young audience because the product line is entirely for the under-30 set. May the employer fire a 70-year-old salesperson and hire a 28-year-old to make calls to these stores? Logic says yes, but without objective evidence that the 70-year-old cannot perform the duties of the job, the employer is in grave legal danger to make that change.
Discrimination does not always manifest itself in something as clear-cut as hiring and firing. Sometimes the discrimination takes the form of:
- Differences in pay
- Benefits, privileges
- Work assignments
- Sales territories
- Opportunity to work overtime
- Being scheduled to work holidays
With small employers, establishing patterns of activity like this through a statistical analysis can be exceedingly difficult because there are not enough similarly situated employees and like jobs to draw comparisons. However, with larger employers, a statistical analysis may be possible.
Federal Employment Law Statutes
Federal statutes that apply to discrimination in employment include:
- Title VII- Discrimination on the basis of race, creed, religion, national origin, or gender
- The Age Discrimination in Employment Act (ADEA)
- The Americans with Disabilities Act (ADA)
- The Equal Pay Act of 1963
- Lilly Ledbetter Fair Pay Act of 2009
Title VII only applies to employers with 15 employees; the ADEA protects employees 40 years of age and older and applies to employers with 20 or more employees. The ADA applies where an employer has 15 or more employees.
The Federal Equal Pay Act, as the name implies, requires equal pay for equal work, irrespective of age, gender, national origin, etc. More information on the right to equal pay under federal law can be found here.
Michigan provides similar laws and does not require a company to have multiple employees. For example, Michigan’s Persons with Disabilities Civil Rights Act applies as soon as there is one employee. The Elliot Larsen Civil Rights Act applies to all employers.
Other forms of discrimination may seem illegal but are not. Frequently, an employee will feel that the boss or supervisor just doesn’t like them, and that the employee is therefore being discriminated against. The employee may well be, but if the discrimination is not based on one of the suspect criteria (race, creed, etc.), the discrimination will not be found to be illegal.