Federal and Florida laws make discrimination in the work place illegal. Employment discrimination occurs when an employer intentionally treats an employee or job applicant less favorably based upon that person’s age, disability, genetic information, marital status, national origin, pregnancy, race/color, religion, or sex/gender. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
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The federal Age Discrimination in Employment Act (ADEA) and the Florida Civil Rights Act of 1991 (FRCA) prohibit employers from discriminating against an employee on the basis of age. The ADEA only forbids an employer from discriminating against employees who are 40 or older, not workers under the age of 40.
Under federal law, it is not illegal for an employer to favor an older worker over a younger one, even if both employees are 40 or older. However, under the ADEA, an older worker could have an age discrimination claim if he/she is replaced by an employee who is under the age of 40, or by one that is also over the age of 40 but substantially younger than the terminated worker. In Florida it is illegal to discriminate against any employee on the basis of age, regardless of the worker’s age.
The Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Florida Civil Rights Act (FCRA) make it illegal for a covered employer to discriminate against an employee on the basis of an actual disability, a history of disability, or a perceived disability.
A person can show that he or she has a disability in one of three ways:
- If he or she has a physical or mental condition that substantially limits one or more major life activities (such as breathing, walking, talking, seeing, hearing, or learning) or a bodily system (such as the endocrine or nervous system).
- If he or she has a history of a disability (such as cancer that is in remission).
- If he or she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he or she does not have such an impairment).
The law also protects people from discrimination based on their relationship with a person with a disability, even if they do not themselves have a disability. For example, it is illegal to discriminate against an employee because her husband has a disability.
The law also requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”). An employer may not refuse to provide an accommodation just because it involves some cost.
Genetic Information Discrimination
In 2008, the Genetic Information Nondiscrimination Act (GINA) was enacted to prohibit certain employers from discriminating on the basis of genetic information when making decisions that concern conditions or terms of employment, including hiring, firing, pay, training, benefits, and promotions.
Genetic information is information about:
- An individual’s genetic tests (including genetic tests done as part of a research study)
- Genetic tests of the individual’s family members (defined as dependents and up to and including 4th degree relatives)
- Genetic tests of any fetus of an individual or family member who is a pregnant woman, and genetic tests of any embryo legally held by an individual or family member utilizing assisted reproductive technology
- The manifestation of a disease or disorder in family members (family history)
Genetic information does not include information about the sex or age of any individual.
The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964 to include a prohibition against pregnancy discrimination. Courts have also interpreted the Florida Civil Rights Act as prohibiting pregnancy discrimination.
Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. If the woman has a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her the same as any other temporarily disabled employee. If an employer provides personal leave for other reasons, then the employer must grant personal leave for care of a new child. The employer also cannot harass a woman based upon her pregnancy.
Pregnant employees may also have rights under the Family and Medical Leave Act (FMLA).
Title VII of the Civil Rights Act of 1964, the Florida Civil Rights Act of 1991 (FCRA), and the Civil Rights Act of 1866 (42 U.S.C. § 1981) prohibit employers from discriminating against employees or applicants based upon a person’s race or color.
This means that employers cannot harass individuals (employees or applicants) or make employment decisions based on their race or color. It also means that employers cannot treat employees unfavorably because they associate with (or are married to) a person of a particular race or color, or are associated with a race-based organization or group. Employers are also prohibited from enacting facially neutral policies or practices (e.g., employment tests or selection procedures) that have a significantly adverse impact on persons of a particular race or color. Furthermore, an employer may not segregate its employees by race or color in job categories, promotions, or other terms and conditions of employment.
Federal law ( Title VII of the Civil Rights Act of 1964) and Florida law (Florida Civil Rights Act) prohibit religious discrimination in the workplace. The definition of religion includes all aspects of religious observance and practice, as well as belief. Religion does not have to be a “mainstream” religion and includes any set of ethical beliefs and the right not to believe.
Coverage extends to not only the beliefs but the practices when carrying out the beliefs. An employer has an affirmative duty to reasonably accommodate a tenet of the belief, not a personal preference of convenience. However, an accommodation cannot cause an undue hardship on the employer or other workers. Consideration also is given to the expense of the proposed accommodation.
There are exceptions to the law:
- A religious corporation, association, educational institution, or society can discriminate on the basis of religion if it chooses to limit employment to persons of a particular religion;
- Schools and colleges run by religious organizations, or whose curriculum is intended to propagate a particular religion, also are exempted;
- First Amendment protection of religious freedom under the United States Constitution prohibits government interference with a church’s selection of its clergy. (A rejected, discharged clergy person may not make a claim against a church even if discrimination is alleged to be based on a factor other than religion, such as race, color, gender or national origin).
Sex and Gender Discrimination
Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1991 (FCRA) prohibit an employer from discriminating against an employee or an applicant based upon that person’s sex. The FCRA also prohibits discrimination based upon an individual’s marital status. This means that the employer cannot treat an individual (applicant or an employee) unfavorably or harass an employee based upon that individual’s sex or marital status.
Another law that protects against a form of sex discrimination is the Equal Pay Act (EPA). The EPA requires that men and women in the same workplace be given equal pay for equal work. In other words, men and women must be paid equally for performing work that similar in skill, effort, and responsibility. The job title does not determine whether the work is similar, rather the actual job duties must be compared. All forms of pay are covered by this law, including salary, hourly wage, bonuses, stock options, paid time off, allowances, and benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay.
Because Title VII and the FCRA make it illegal to discriminate based on sex, someone who has an EPA claim may also have a claim under Title VII or the FCRA.
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Employers can violate the law in many ways. This may include the ways listed above, breaching an employment contract, refusing to pay commissions earned, or unlawfully interfering with an employee’s ability to get a job or stay in his/her current job. However, many actions by an employer, while unfair, are not illegal. Florin|Roebig has the resources and experience gained from years of successfully representing victims of discrimination.
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