Protection from Discrimination

As an employee, you are protected from employment discrimination under Title VII of the Civil Rights Act of 1964.  Under the Act, an employer may not discriminate against you on the basis of race, color, ethnicity or national origin, religion, sex, pregnancy, disability, age, or genetic information. The law also protects you against retaliation from an employer after you have filed a discrimination charge.  Click on any of the links above to learn more about Title VII’s specific legal protections.

While discrimination based on sexual orientation is not prohibited under Title VII, currently 21 states and the District of Colombia have employment discrimination statutes that prohibit discrimination on that basis.  For additional information on these state laws as well as a list of cities and counties with ordinances that prohibit employment discrimination on the basis of gender identity, click here.

Filing an EEOC Charge

The Equal Employment Opportunity Commission (EEOC) is the federal agency in charge of investigating employee discrimination claims.  Before you can sue your employer for discrimination, you have to file a charge with the EEOC and receive a Notice of Right-to-Sue.  Use this tool to determine whether you should file a charge with the EEOC.     

Filing deadlines apply to EEOC charges, so if you believe you have been discriminated against it is important to act quickly.  You do not need a lawyer to file a charge with the EEOC, however it may be helpful to consult one.  You can file a charge in person at any of the EEOC’s 53 field offices, or you can file by mail.  Click here for complete filing instructions. 

If you are a federal employee, the process for filing a complaint and the deadlines are a bit different.  Please click here for more information.

Your Right to Organize

Organizing your coworkers and joining a union means you gain more bargaining power, higher wages and better benefits.  For these reasons, many employers often fight to keep unions out of their workplaces.  But as an employee, your right to form or join a union is guaranteed under the National Labor Relations Act.* This means that you cannot be fired, disciplined or demoted for trying to unionize your workplace or join a union, and your employer may not threaten or intimidate you to get you to stop organizing or to vote against the union.  You also have a right to discuss your working conditions and terms of employment with your coworkers.   Such discussions are protected as “concerted activity” for “mutual aid and protection” under the Act.

In addition to these rights, the NLRA also puts specific restrictions on your employer.  For example, while you and your coworkers are preparing to vote on unionization in a representative election, there are certain things your employer may not do or say.  He or she may not threaten you with negative consequences if you vote for the union and your employer cannot promise to give you new benefits if you vote against the union.  Your employer can express his opinion on the union but he cannot make up baseless stories about possible consequences of unionization.

Even though your employer cannot legally threaten or punish you for trying to unionize, management will likely try to spread negative rumors about the union to scare employees out of supporting it.  Click here for a list of real union facts your employer doesn’t want you to know.   

If you start a new job that already has union representation, you will likely be contacted by a union steward.  If you have not yet been contacted but want to join the union, ask your coworkers for the steward’s contact information.  If your workplace does not have a union, please click here for information on how to start the organizing process.

* The right of federal employees to organize and join unions is protected by the Federal Service Labor-Management Relations Statute.  Railway and airline employees have a right to unionize under the Railway Labor Act.  

Wage and Hour Law

If your employer makes more than $500,000 a year in annual sales or is engaged in interstate commerce, you are covered by the Fair Labor Standards Act (FLSA).   The Act establishes wage and hour laws, and since most employers are engaged in interstate commerce, you are probably covered by the FLSA. 

Under the Act, if you work more than 40 hours a week your employer is required to pay you time-and-a-half for every additional hour you work.  The Act also establishes a federal minimum wage, which is currently set at $7.25 an hour.  Many states have passed laws setting a higher minimum wage, and employers in those states must abide by the higher rate.  To learn more about the minimum wage rate in your state, please click here.  If you are an employee who works for tips, federal law requires your employer to pay you at least $2.13 an hour in base pay.

Some types of employees are automatically excluded under the FLSA and therefore are not subject to the federal minimum wage or overtime pay requirements.  These groups include agricultural workers, executive, administrative and professional employees (including teachers), employees of some small newspapers, fishermen, domestic workers, railroad employees, home healthcare workers, movie theater employees, taxi drivers and others.  To determine whether you are covered under the FLSA, use the U.S. Department of Labor’s online survey.

The Department of Labor’s Wage and Hour Division is in charge of enforcing the FLSA.  If you think your employer might not be complying with the law, please contact your nearest Wage and Hour Division Office or call the toll-free Wage and Hour Help Line at 1-866-4-US-WAGE. 

For more information on the FLSA, please check out the Department of Labor’s “Handy Reference Guide to the Fair Labor Standards Act.”  To listen to a podcast discussing the Fair Labor Standards Act, check out this fun website.

Family and Medical Leave

The Family and Medical Leave Act allows all covered employees to take up to 12 weeks of unpaid, job-protected leave within a 12-month period for specified family and medical reasons.  In addition, covered employees are entitled to 26 weeks of job-protected leave to care for a servicemember with a serious injury or illness.  Qualifying family and medical reasons include the birth and care of your child, caring for an immediate family member with a serious health condition, instances where you are unable to work because of a serious health condition, and circumstances that arise when your immediate family member is on active duty or is called to active duty as a member of the National Guard or Reserves. The act applies to all public agencies (including local and federal employers), schools and private-sector employers who employ 50 or more employees within a 20 week period in the current or preceding calendar year.  In order to be eligible for FMLA benefits, you must have worked for your covered employer for at least 12 months, have worked at least 1,250 hours over the previous 12 months, and worked in a location where there are at least 50 coworkers employed within 75 miles. 

When returning from FMLA leave, you must be restored to your original job or an equivalent job with the same pay, benefits, and other conditions of employment.  Leave taken under the Act also cannot count against you for purposes of a “no fault” attendance policy.

If the need for leave is foreseeable, you must notify your employer 30 days before the leave starts and must comply with your employer’s usual procedural requirements for requesting leave.  If the circumstances necessitating leave are unforeseeable, you must notify your employer as soon as is practicable.

The Department of Labor’s Wage and Hour Division enforces the FMLA by investigating workers’ complaints.  The Department of Labor may bring a lawsuit on your behalf to make your employer comply with the Act.  You may also sue your employer privately. 

To learn more about the types of family and medical circumstances covered by the Act, please click here.  A new amendment to the Act provides different standards for flight crew workers.  If you are a flight attendant or a member of a flight crew, please click here.

Workers with Disabilities

Disability discrimination occurs when a covered employer treats an employee or job applicant unfavorably because he or she has a disability, a history of disability or a substantial physical or mental impairment.

The Americans with Disabilities Act (ADA) makes it unlawful for a state or local government or a private employer with at least 15 employees to discriminate against an individual with a disability who is qualified for the position.  This same prohibition applies to the federal government under the Rehabilitation Act of 1973.  Discrimination is prohibited for purposes of hiring, advancement, discharge, compensation, job training and all other terms and conditions of employment.

The law requires employers to provide reasonable accommodations for employees or applicants with disabilities, unless doing so would cause an “undue hardship” to the employer.   According to federal regulations, an accommodation is “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”  Examples of reasonable accommodations include making the workplace wheelchair accessible or providing a reader or interpreter for an employee who is deaf or hard of hearing or blind or vision impaired.  Reallocating a marginal job function to another worker because an employee with a disability is unable to perform the function is also considered a reasonable accommodation.  Under the ADA, “undue hardship” means an action that would cause the employer significant difficulty or expense in light the employer’s size, financial resources, and business needs.   While an employer may not refuse to provide an accommodation because it requires some cost, the employer is also not required to provide the exact accommodation the employee or applicant asks for if there is another accommodation that will work, instead.

In order to be protected under the ADA and the Rehabilitation Act, you must be qualified for the job in question and have a disability as defined by law.  You are covered if you meet one of the three following criteria:

  • You have a physical or mental condition that substantially limits one or more major life activities (such as breathing, learning, seeing, hearing, speaking, or taking care of yourself);
  • You have a history of a disability (such as cancer that is in remission); or
  • You are regarded by others as having a physical or mental impairment that is neither short-term nor minor (even if you do not actually have an impairment).

The ADA does not cover employees currently using illegal drugs, but it may protect a recovered drug addict who is qualified for the position and could otherwise be considered disabled.  It may also protect an alcoholic if he or she is considered disabled under federal law.  Employers may hold employees or applicants who are alcoholics or who use illegal drugs to the same performance standards as all other employees.  For additional information about performance and conduct standards under the ADA, please click here.

Courts have held that the ADA also prohibits harassment on the basis of disability.  While the law does not prohibit a random offensive remark or an isolated incident of teasing, the comments or conduct become actionable when they occur so frequently or are so severe that they create a hostile working environment.  

If you are being harassed or you believe an employer has discriminated against you because of your disability, you should file a charge with the Equal Opportunity Employment Commission.  Make a written record of the incidents that you believe are discriminatory and click here (link to my topic heading) for more information on filing an EEOC charge.  

The ADA and the Rehabilitation Act do not preempt state law.  This means that if your state has stricter discrimination prohibitions or defines disability in a broader way, the employer must abide by the state laws, in addition to the federal law. For more information on disability discrimination, please click here.  You can also call the Department of Justice’s toll-free ADA Information Line at (800) 514-0301.