It is against the law for an employer to discriminate against an employee or job applicant on the basis of certain classifications, such as race, color or sex. So, if you own and operate a small business, you cannot decline to hire a job applicant on the basis of such characteristics. Both federal and state laws prohibit such discrimination.

Title VII

The principal federal law upon which employment discrimination claims are often based is Title VII of the Civil Rights Act of 1964. This law prohibits covered employers from:

  • Discriminating against an employee or job applicant because of that person's race, color, sex, national origin or religion, or
  • Retaliating against an employee or job applicant for opposing any practice made unlawful by Title VII

An employer is covered under Title VII if he or she:

  • Is engaged in an industry affecting commerce and
  • Employs 15 or more persons for each workday of each of 20 or more calendar weeks in the current or preceding calendar year

Title VII's prohibitions apply to hiring and recruitment, discharge, promotion, transfer, job assignment and classification, training and compensation.

An exception to Title VII permits discrimination based on sex, religion and national origin where any of these prohibited factors constitutes a bona fide occupational qualification (BFOQ) that is reasonably necessary to the normal operation of the business.

Section 1981

The Civil Rights Act of 1866, 42 U.S.C. § 1981, provides that ''all persons'' shall have the same rights of contract as ''white citizens.'' This federal law has been used in employment situations to prohibit purposeful discrimination in the making or enforcement of contracts based on race and color. The term ''race'' covers claims of discrimination based on alienage or ethnicity where the source of the bias is essentially racial in character.

Age Discrimination in Employment Act

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits covered employers from discriminating against employees and job applicants aged 40 and older on the basis of their age. An employer is covered under the Act if he or she:

  • Is engaged in an industry affecting commerce and
  • Has 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year

Americans with Disabilities Act

The Americans with Disabilities Act of 1990 (ADA) prohibits employers from discriminating against qualified individuals with disabilities. Employers must also make reasonable accommodations to known physical or mental limitations of an otherwise qualified individual unless doing so would impose an undue hardship on the employer. An employer is covered under the Act if he or she employs 15 or more workers for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

Immigration Reform and Control Act

The Immigration Reform and Control Act of 1986 (IRCA) prohibits discrimination on the basis of citizenship and national origin. An exception to this rule allows covered employers to prefer United States citizens over equally qualified aliens.

State Laws

Virtually all states have employment discrimination or equal employment laws, and with the exception of Alabama, every state prohibits employment discrimination based upon race, religion, sex or national origin. In addition, states frequently ban employment discrimination based on age, disability and marital status.

While Title VII applies to employers with 15 or more employees, state laws frequently extend to smaller employers. For example, many states extend the coverage of their employment discrimination laws to employers who employ one or more individuals.

Under most state laws, employers may not discriminate in hiring, firing, compensation or any other term, condition or privilege of employment.

Questions for Your Attorney

  • How many employees must I have before my business is subject to the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964?
  • At what age are employees covered by the provisions of the Age Discrimination in Employment Act?
  • Can I refuse to hire a job applicant on the basis of his race if I employ fewer than 15 employees?