Labor and Employment

Employment Discrimination FAQs for Employers

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Find out what workplace discrimination is – and what to do if you are being discriminated against.

Q: Can an employee be terminated if she is pregnant?

  • A: It depends on the reason for the termination. Federal and state laws prohibit discrimination based on sex, which includes discrimination based on pregnancy, childbirth, and related conditions. So, an employer may not fire an employee because she is pregnant.

But that does not mean an employer may never fire an employee who happens to be pregnant, as long as the termination is unrelated to the pregnancy. If, for example, an employer decides to outsource its fulfillment functions and lays off all of the employees who work in its warehouses, it does not have to retain one warehouse employee because she happens to be pregnant.

An employer may also fire an employee who is pregnant for poor performance. In this situation, however, employers must be very careful to make sure they can prove that the termination was completely unrelated to the employee's pregnancy. In other words, they must be able to show that they would have fired any other employee in the same circumstances. This means, for example, that the firing should be consistent with the employer's policies and past practice; the employee's performance problems should have been documented over time; and the performance problems should have no relation to the employee's pregnancy. For instance, if the employee missed a deadline because she had to take a week off due to severe morning sickness, that should not count against her.

If your company is considering firing or laying off a pregnant employee or an employee who has recently returned from parental leave, you should definitely talk to a lawyer first to make sure you will have a solid defense if the employee claims pregnancy discrimination.

Q: Can an employee sue my company for discrimination and recover damages because his manager yelled at him?

  • A: It depends on all of the circumstances. An employee who sues for discrimination must be able to show that he suffered negative job consequences (such as being fired, or denied a raise or promotion) because of his protected characteristic. If your manager yells only at African American employees, for example, that might meet the second part of the test. However, it isn't illegal for a manager to be a hotheaded jerk, as long as that attitude applies to everyone. (This doesn't mean you should allow the manager to continue treating employees badly, just that you won't face a successful discrimination claim because of it.)

As to the first part of the test, it isn't clear from your question whether the employee suffered a negative job action. If the employee wasn't demoted, fired, or disciplined, for example, he hasn't suffered sufficient injury to prove discrimination.

However, the employee may have a harassment claim: in this case, that he was subjected to unwelcome conduct, based on his protected characteristic, that is severe and pervasive enough to create a hostile work environment. Harassment must still be based on the victim's protected characteristic, such as race or religion. And, it must be either frequent, serious, or both. One instance of getting yelled at likely wouldn't be enough to prove harassment, unless the manager yelled truly offensive bigoted comments.

Q: Can an employer fire someone because of religious beliefs?

  • A:No. Title VII of the federal Civil Rights Act of 1964 prohibits employers from discriminating against employees based on their religion. Most states have similar laws. Firing an employee based on the employee's religious beliefs -- for example, because the employee is Muslim, Jewish, or Christian, or because the employee is an atheist -- violates Title VII.

Employers are also required to accommodate their employees' religious practices and beliefs, as long as the accommodation would not create undue hardship: more than a minimal burden or expense. For example, an employee might ask to be allowed to take a break from work at specified times during the day for prayer. The employer must allow these breaks, unless doing so would be too burdensome. If, for instance, one of the breaks falls during the employer's morning rush, and the employer would have to hire another employee to make the break possible, that would be an undue hardship.

Q: Can an employer require an employee to take vacation time for a religious holiday?

  • A: Probably. An employer must make accommodations for an employee's religious beliefs or practices. This can include time off for religious observances, including holidays, rites, and Sabbath days. Employers may allow employees to take this time off as paid vacation, floating holidays, or personal days, for example. If an employee has no paid time off available, the employer should allow the employee to take unpaid leave for religious observances.

Employers do not have to accommodate an employee's need for time off for religious holidays only if it would create an undue hardship. If, for example, the employer would have to hire temporary help to allow the time off, that might be an undue hardship.

Q: Is it discrimination for an employer to lay off an older employee in favor of a younger employee?

  • A:If the decision was based on the age of the employee, this is discriminatory. Under the federal Age Discrimination in Employment Act (ADEA) and similar state laws, employers may not make job decisions based on an employee's age, if the employee is at least 40 years old. So, an employer may not target older employees for layoffs in order to replace them with younger employees.

If the age of the employee was not a factor in the layoff decision, it may be legal. The ADEA allows employees to challenge employment decisions that have a disparate impact on older workers. For example, if an employer conducts a layoff in which a disproportionately large number of older employees lose their jobs, the employees may allege age discrimination. However, the employer can defend itself by proving that its layoff decision was based on a reasonable factor other than age (RFOA). For example, if the employer decided to abandon a product line and lay off all employees who work on it, that would be an RFOA, even if a large number of those employees happen to be older.

Q: What does an employee have to prove to win in an employment discrimination case?

  • A:An employee must prove that the employer made a job decision based on the employee's protected characteristic. Courts recognize that it is very hard to prove discriminatory motive: Unless the decision maker openly admits bias ("I'll never promote a woman to manage this department!"), it can be hard to prove what someone else is thinking.

For this reason, courts have come up with a formula or test for proving discrimination. First, the employee must make a "prima facie" case of discrimination, by showing that:

    • the employee is a member of a protected class (for example, the employee has a disability or is Latino)
    • the employee was qualified for the position or other job benefit
    • the employee was fired, not promoted, or otherwise did not get the position or benefit, and
    • the person who did get the benefit was not a member of the protected class.

    Once the employee presents this evidence, the employer may present evidence that it had a legitimate, nondiscriminatory reason for its decision. Finally, the employee must prove that the employer's reason was a pretext for discrimination. An employee can show, for example, that even though the employer says it always promotes employees based on seniority, three women with higher seniority have been passed over for promotion while men with less seniority have been promoted. These facts tend to show that the employer's reason is false, a cover-up for discrimination.

    For information and guidance on discrimination and harassment, see Nolo’s Preventing Discrimination and Harassment page for employers and human resource professionals.

    Q: What is necessary for a person to prove that he or she has a disability under the Americans With Disabilities Act?

    • A: The Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees or applicants based on their disabilities. But not every impairment or disease is a disability, for legal purposes. Under the ADA, a disability is a physical or mental impairment that substantially limits a major life activity. Major life activities include the basic daily tasks like seeing, hearing, walking, sleeping, and learning. They also include major bodily functions, such as normal cell growth and the proper functioning of the reproductive system, neurological system, digestive system, immune system, and so on. Even if your disability is in remission or controlled with medication or assistive technology, it qualifies if it limits a major life activity when active or in its uncorrected state.

    Employers also may not discriminate against an employee who has a history of disability or whom the employer perceives, even incorrectly, as having a disability. For example, an employee who has a limp but can walk at a normal pace without pain might be perceived as having a disability, even if that's not the case.

    Q: What kind of damages can a person get for a claim of age discrimination? Are punitive damages recoverable?

    • A:The federal Age Discrimination in Employment Act (ADEA) gives employees the right to money damages if they can prove that they were discriminated against based on age. Employees who win a lawsuit are entitled to back pay (the money and benefits they would have received had they not been fired or otherwise discriminated against); reinstatement to their job or front pay (to compensate them until they can find a new job, if reinstatement is not an option); out-of-pocket losses (for example, the cost of looking for a new job); and attorney fees and court costs.

    The ADEA does not give employees the right to emotional distress damages or punitive damages. However, employees can ask for liquidated damages, in an amount equal to the wages, benefits, and other compensation owed the employee at the time of trial, if the employer knew that its conduct was illegal or acted with reckless disregard as to the legality of its conduct.

    Many states have also passed laws prohibiting age discrimination, and these laws each have their own damages provisions. Some states allow punitive damages and emotional distress damages for age discrimination; others do not.

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