Preventing Employment Discrimination FAQ

What forms of discrimination are illegal in the workplace?

It is illegal to discriminate against someone on the basis of a particular characteristic only if that characteristic is listed in a federal, state, or local law prohibiting discrimination. 

Federal laws. Federal law prohibits discrimination on the basis of race, gender, pregnancy, national origin (including affiliation with a Native American tribe), religion, disability, citizenship status, genetic information, and age (if the person is at least 40 years old).

State and local laws. State and local laws often prohibit additional types of discrimination, including discrimination on the basis of marriage, sexual orientation, and weight. (Almost half of the states prohibit private employers from making employment decisions based on sexual orientation, as do many county and municipal governments. For more information, see Nolo's article Preventing Sexual Orientation Discrimination in the Workplace.) To learn more about your state and local laws, contact your state fair employment office.

Do antidiscrimination laws apply to small businesses?

If you have a really small business -- with only one to three employees -- you do not have to worry about the vast majority of antidiscrimination laws. The major exception to this general rule is the federal Equal Pay Act, which applies to virtually all employers, regardless of size.

In addition, there might be a local ordinance or state law that does apply to you (although the majority of these laws applies only to employers with five or more employees). To find out what your state laws prohibit, contact your state fair employment practices agency or check out Nolo's state-by-state resources, Employment Discrimination in Your State; ask your local government for information on municipal or county ordinances.

What should I do if an employee complains about discrimination?

The most important thing to do is to take the complaint seriously, no matter how angry it makes you or how farfetched the allegations seem. Investigate the complaint thoroughly and, if you find any merit to the complaint, remedy the situation as quickly as possible. For practical strategies to avoid workplace discrimination complaints, get The Essential Guide to Handling Workplace Harassment & Discrimination, by Deborah C. England (Nolo). 

Do not discipline or demote the employee who complains. Most antidiscrimination laws contain a provision that prohibits employers from retaliating against employees who complain of discrimination or participate in an internal investigation of a complaint. Both firing and discipline constitute retaliation, as do lesser actions.

Are English-only rules legal?

It depends on the purpose and scope of the rule. An employer may be able to prohibit on-duty employees from speaking any language other than English if it can show that the rule is necessary for business reasons. If your company has an English-only rule, you must tell employees when they have to speak English (for example, whenever customers are present) and the consequences of breaking the rule.

Which disabilities are covered under the Americans with Disabilities Act?

The Americans with Disabilities Act (ADA) defines a disability as a physical or mental impairment that substantially limits a major life activity, including a major bodily function (such as the proper functioning of the reproductive or nervous systems). In 2008, Congress amended the ADA to make clear that this definition is intended to be interpreted broadly, to offer coverage to a wide range of people. The ADA also protects those who have a history of disability and those who are perceived by their employer, even incorrectly, to have a disability. For more information on the 2008 amendments to the ADA, see Nolo's article ADA Amendments: More Protections Against Disability Discrimination. For information on the ADA generally, including an employer's legal obligation to reasonably accommodate an employee's disability, see Nolo's article Reasons Accommodations for People With Disabilities: The ADA. 

If an employee reveals genetic information to a supervisor, do we have an obligation to keep it confidential?

Yes. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from requesting or requiring that employees or applicants provide genetic information. GINA recognizes that an employer might learn this type of information inadvertently (for example, if a manager overhears a private conversation or an employee chooses to confide in work colleagues). In this situation, the law has not been violated. However, the employer still has an obligation to keep that information confidential and may not use it in making employment decisions. For more information on GINA, see Nolo's article Genetic Information Discrimination: Avoiding It in the Workplace. 

Can we require employees to follow a dress code?

Yes, as long as it's reasonable and doesn't discriminate. For example, many employers require employees to wear professional clothing, impose certain rules based on safety (such as no dangling jewelry), or have a uniform requirement. Rules like these are fine, as long you are open to an employee's request for a reasonable accommodation. For example, an employee who uses a wheelchair may need a uniform made out of softer material, to avoid discomfort and chafing. Or, an employee whose religious beliefs prohibit cutting his hair may ask to be allowed to wear his hair in a neat ponytail or under a head wrap rather than cutting it short. For more information on how to avoid discrimination when imposing dress codes, see Nolo's article Dress Codes and Grooming Codes in the Workplace. 

Do I have to give an employee time off for religious observances?

It depends on how difficult it would be for you to do so. You are legally required to work with your employees to make it possible for them to practice their religion. This might include not scheduling an employee to work on an important religious holiday. However, you are not required to offer this accommodation if it would cause a hardship on your business or other workers (for example, if it would upset your seniority system).

For More Information

For a practical guide to workplace harassment and discrimination for managers and HR professionals, get The Essential Guide to Handling Workplace Harassment & Discrimination, by Deborah C. England (Nolo).

If you want some advice from a lawyer, Nolo's Lawyer Directory can help you find a local employment lawyer.

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