Discrimination


Employment Discrimination FAQs

If you think you are being discriminated against in the workplace based on age, race, sex, ethnicity, religion, sexual orientation, disability or pregnancy, you may have a strong case for a lawsuit. There are both federal and state laws surrounding workplace discrimination, which can benefit your case, but which also make employment law complicated.

Use this FAQ list to get answers to the most commonly asked employment discrimination questions.

1. What are the different types of employment discrimination?

Federal and state laws differ when it comes to employment discrimination.

Federal laws prohibiting job description include:

Title VII of the Civil Rights Act of 1964 (Title VII), prohibits employment discrimination based on race, color, religion, sex, pregnancy or national origin.

The Equal Pay Act of 1963 (EPA), protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.

The Age Discrimination in Employment Act of 1967 (ADEA), protects individuals who are 40 years of age or older.

Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.

Sections 501 and 505 of the Rehabilitation Act of 1973, prohibit discrimination against qualified individuals with disabilities who work in the federal government;

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), prohibits employment discrimination based on genetic information about an applicant, employee, or former employee.

The Civil Rights Act of 1991, among other things, provides monetary damages in cases of intentional employment discrimination.

State laws prohibiting job discrimination include:

New Hampshire Law Against Discrimination RSA 354-A prohibits discrimination because of age, sex, pregnancy, race, creed, color, marital status, familial status, physical or mental disability or national origin.

New Hampshire Equal Pay Act RSA 275:37 protects men and women who          perform substantially equal work in the same establishment from sex-based wage discrimination.

Massachusetts Law Against Discrimination M.G.L. 151B prohibits discrimination because of race, color, religious creed, national origin, ancestry or sex.

Massachusetts Equal Pay Act M.G.L. c. 149 protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.

You should check your own state’s laws.

 

2. What is a protected characteristic?

A protected characteristic includes age (40 and older), national origin, sex, race, religion, pregnancy, disability or sexual orientation. It is unlawful for an employer to fire you or not hire you if the reason is based on one or more of these characteristics.

3. How do I prove discrimination?

Discrimination lawsuits are very fact-based cases. In order to prove your case you will need evidence that:

  • you are a member of a protected class
  • you were qualified for the job you were performing

and one of the following is also true:

  • your employer took adverse action against you
  • you were replaced by someone who is not in a protected class
  • your employer’s reason for discharge was false

4. Do the same discrimination laws apply to small businesses?

The smallest of businesses are not subject to most of the discrimination statutes. The Americans with Disabilities Act applies only to employers with 15 or more employees. The same is true for Title VII. The threshold for coverage under the Age Discrimination in Employment Act is 20 or more employees.  RSA 354-A and M.G.L. 151-B apply only to employers with six or more employees. The Equal Pay Act, applies to most employers with at least one employee.

5. Is it considered discrimination if my employer does not give me time off for religious holidays?

Employers must give you time off for religious holidays so long as this does not pose an undue hardship on the company. According to the EEOC:

Title VII requires employers to accommodate only those religious beliefs that are religious and “sincerely held,” and that can be accommodated without an undue hardship. Although there is usually no reason to question whether the practice at issue is religious or sincerely held, if the employer has a bona fide doubt about the basis for the accommodation request, it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and gives rise to the need for the accommodation.

Factors that – either alone or in combination – might undermine an employee’s assertion that he sincerely holds the religious belief at issue include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

6. Can my employer fire me for how I dress?

The “at will employment” doctrine in the United States says that an employer can fire an employee for almost any reason, whenever they please. The opposite is also true, that an employee can quit at any time and for any reason. Because of this doctrine it is, in many cases, legal for an employer to fire or not hire based on dress. Exceptions may include religious dress, cases where women are subjected to appearance standards when men are not (or vice versa) or cases where there is an employment contract in place.

7. Can my employer discriminate against me based on my age?

The federal age discrimination statute only applies to applicants and employees over the age of 40. According to the EEOC:

Under the Age Discrimination in Employment Act, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

The Age Discrimination in Employment Act includes apprenticeship programs, job notices and advertisements, pre-employment inquiries and benefits.

Unlike the federal Age Discrimination in Employment Act, New Hampshire’s Law Against Discrimination does not limit its protection to persons 40 or more years of age.  The New Hampshire statute applies to all employees over the age of 18.

8. Are contractors or temporary employees able to file employment discrimination claims?

On a federal level you are able to file a claim of discrimination even if you are a temporary worker. State laws, on the other hand, vary. It is important to talk with a lawyer if you are a temporary worker facing employment discrimination.

9. Is there a statute of limitations on filing a discrimination charge?

Yes, generally the statute of limitations on employment discrimination is 180 days. However, this can vary depending on the type of discrimination case you are filing. Since there is such a short timeframe around when you are able to file a claim, it is imperative you contact an attorney as soon as possible or you may put your case in jeopardy.

10. What is the Americans with Disabilities Act?

The Americans with Disability Act was passed in 1990 and prohibits discrimination against those with disabilities in employment, schools, transportation and in all places open to the public. Title I of the act aims to give people with disabilities equal employment opportunities as those without. The law states that reasonable accommodation must be provided to accommodate employees with disabilities. Reasonable accommodation is “any change to a job, the work environment, or the way things are usually done that allows an individual with a disability to apply for a job, perform job functions, or enjoy equal access to benefits available to other individuals in the workplace,” according to the Office of Personal Management.

11. What should I expect in damages if I win a discrimination case?

In employment discrimination cases, you may be eligible for monetary punitive and compensatory damages.

Monetary damages could include back pay, which is the difference between amounts you would have earned from date of termination to date of judgment. Another possible damage is front pay, the amount of money that a fact-finder can award to an individual going forward, necessary to compensate for harm he or she has sustained and also how an individual’s career will be impacted going forward. Keep in mind there is no set identifiable formula.

Compensatory damages are those the jury/fact-finder determines as an amount sufficient to compensate employee for how termination has impacted him or her beyond just salary. Enhanced compensatory damages carry with them potential for punitive damages, interest and attorney’s fees.

12. Are there any circumstances in which employers can discriminate based on age, sex or disability?

Under a bona fide occupational qualification, employers can claim that a certain characteristic is necessary for a particular job. For example it is not discrimination to hire a young male actor to play a young male character.  Another example is age limits for pilots and/or bus drivers where public safety is at stake.


If you believe you have an employment discrimination case, you need legal counsel that is both thorough and effective. Contact us to schedule a free initial consultation or call us at 603.570.4837.