Employment Discrimination Laws: Myth vs. Fact
There’s a lot of confusion out there, but employers who make staffing decisions based on discriminatory reasons can still be held liable.
Most people know that employment discrimination laws prohibit most employers from engaging in discriminatory employment practices against their employees or applicants on the basis of their membership in a protected category or class such as their gender, race, religion, age, or disability. This area of the law can sometimes be confusing and complex since differing statutes, regulations, and guidelines can all simultaneously apply to an employer.
It comes as no surprise, then, that various myths and misunderstandings about employment discrimination laws exist. Below we examine some common beliefs and questions people have about employment discrimination laws to help separate fact from fiction and dispel commonplace myths and misconceptions. In doing so, we aim to help employees understand their rights and help employers create and maintain an inclusive workplace culture that is intolerant of any forms of illegal discrimination or harassment.
The only protected categories are race, religion, age, disability, and sex.
MYTH. Federal laws prohibit discrimination on the basis of race, color, national origin or ancestry, religion or creed, sex, pregnancy, age, physical or mental disability, veteran status, genetic information and citizenship status. Most states and many cities and counties include additional protected categories like marital status, sexual orientation, gender identity/transgender status, political ideology, service in a state militia, and whistleblower status.
Most federal discrimination laws only apply to employers of certain sizes.
FACT. Although the Equal Pay Act and the federal law prohibiting discrimination based on veteran status (USERRA) apply to all employers regardless of their size, the federal law banning discrimination based on age (ADEA) applies only to employers with 20 or more employees, and the federal laws banning discrimination on the basis of race, color, religion, sex or national origin (Title VII), disability (ADA), pregnancy (PDA), and genetic information (GINA) apply only to employers with 15 or more employees. Make sure to check your local laws and ordinances in addition to the federal laws to see if your company qualifies.
Discriminating in hiring and firing are the only discriminatory practices prohibited by discrimination laws.
MYTH. Under federal discrimination laws, it is illegal to discriminate in any aspect of employment including, but not limited to, hiring, firing, compensation, bonuses, assignments, classification, promotions, transfers, layoffs, evaluations, discipline, job advertisements, recruitment, testing, training, use of company facilities, fringe benefits, retirement plans and disability leave.
Victims of sexual harassment can only be women.
MYTH. Sexual harassment can happen to anyone — both men and women can be victims of sexual harassment, and both men and women can be the harassers.
Not hiring an applicant due to their heavy accent is not necessarily illegal.
MYTH. Not hiring someone based on linguistic characteristics — like accents — which are associated with a racial or ethnic group is a form of unlawful national origin discrimination.
“English Only” rules can be adopted and are not a form of discrimination.
MYTH. It’s considered unlawful discrimination to force individuals to speak only English in the workplace. The only exception is if speaking English is a necessity due to safety reasons or similar circumstances.
A “no facial hair” employment policy is not discriminatory as long as it applies to everyone.
MYTH. A “no beard” or “no facial hair” policy may discriminate against African-American men who have pseudo folliculitis barbae — which is more commonly known as severe shaving bumps; so a “no shave” policy would likely be considered a form of racial discrimination. A “no beard” policy may also discriminate against members of certain religions who wear their beards for religious reasons. The only way a “no beard” policy could be non-discriminatory would be for the policy to be very specifically job-related and consistent with a business necessity (such as safety around certain equipment).
While recruiting and hiring, screening out prototypical religious or ethnic names is a form of discrimination.
FACT. Screening out applicants who have names that might be associated with certain religions or ethnicities is an illegal and discriminatory practice.
If a religious practice that occurs at work conflicts with OSHA requirements, the employer must still accommodate and allow the religious practice to continue at work.
MYTH. If a religious practice goes against a legally mandated safety or security requirement, an employer does not need to accommodate the religious practice because it would cause an undue hardship. This would not be illegal discrimination.
The starting age for employment discrimination protections is 60.
MYTH. Under federal law, the starting age for age discrimination protections is 40 years of age. Several states allow age discrimination claims to be brought by individuals of any age.
Because construction is a physically demanding and inherently dangerous job, including age preferences or cutoffs is not only legal — it is safe.
MYTH. Age preferences or cut-offs are almost always illegal and discriminatory. Age preferences are only legal if age is a “bona fide occupational qualification” such as mandatory retirement ages for airline pilots for safety reasons or in auditions for a child actor to fulfill an acting role.
Applicants can be asked in a job interview if they are capable and able to perform certain job tasks.
FACT. Interviewers are legally allowed to ask interviewing applicants if the applicant can perform specific job tasks or requirements. However, employers cannot ask an applicant in an interview if they have a disability or medical condition, mental health problems, work injury histories, or what types of medications an employee is taking. Only after the applicant has been offered the job can the employer legally ask about disabilities — and only so that the employer can reasonably accommodate them.
Women can be fired if they become pregnant.
MYTH. Employers are not allowed to discriminate based on the fact that a woman is, was, or could become pregnant, has a pregnancy related condition, or because she will be taking maternity leave.
An employer is legally allowed to reassign a pregnant woman if certain tasks are considered dangerous.
MYTH. An employer is not allowed to remove a pregnant woman from a job or task simply because the employer believes the work would pose a risk to the woman or the pregnancy. However, an employer does not have to keep a pregnant woman in a certain job if she is no longer able to perform the job or endangers others.
Discrimination laws don’t apply in at-will states.
MYTH. Many people are under the misconception that if they work in an “at-will” state, then federal and state anti-discrimination laws do not apply to them. At-will employment simply means that an employment relationship can be terminated by the company or by the employee at any time for any reason or for no reason at all, with or without prior notice given. However, the reason for an employee’s termination still must be lawful, i.e. non-discriminatory.