What Is Employment Discrimination?

Employment discrimination generally occurs when an employee is intentionally treated differently because of the employee’s race, color, religion, national origin, disability, gender, sexual orientation (this varies from state to state) or age by the employer in either the phases of hiring, discipline, performance of job duties or termination.

To prove unlawful discrimination, employees must be able to show that an action affecting employment was based on the fact that the employee belongs to a protected class rather than a legitimate business decision. Lawyers generally classify employment discrimination cases as either “disparate treatment” or “disparate impact” cases.  If the employer's action is intentionally discriminatory, it is usually called “disparate treatment.” If the an employer’s policies and procedures have an unintentional discriminatory effect, it it is usually called “disparate impact.”

However, even if an employee’s evidence shows that an employer's action constitutes discrimination, an employer may be able to justify the action by proving that there was a “business necessity” for it or that the issue related to a “legitimate job qualification.” When the employer makes a decision based on a legitimate justification, the burden then shifts back to the employee to show that discrimination, not the employer’s justification, was the true reason for the action.

What Is Title VII Of The Civil Rights Act Of 1964?

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq., prohibits discrimination in employment on the basis of race, sex, national origin and religion. It also is unlawful under the Act for an employer to take retaliatory action against any individual for opposing employment practices made unlawful by Title VII or for filing a discrimination charge or for testifying or assisting or participating in an investigation, proceeding, or hearing under Title VII.

Title VII prohibits discrimination in employment including public accommodations, governmental services and education. An employer cannot fail or refuse to hire or refuse to promote, fire anybody or discriminate with respect to compensation, terms, conditions and privileges of employment based on race, color, sex, religion or national origin. An employer cannot limit, segregate or classify employees or applicants in any way that would deprive or tend to deprive employment opportunities or that adversely affects the status of an employee because of race, color, sex, religion or national origin.

Can An Employer Use Arrest And Criminal Records To Reject A Job Applicant?

There have been some cases where the EEOC has found the blanket use of arrest or criminal records as a basis for rejecting job applicants to be unlawful if such use results in a disporportionate effect on the rejection of African American job applicants, unless an employer can show that an employee having a clean criminal history is necessary to the operation of the employer’s business.

When refusing to hire based on an applicants criminal history, an employer should be able to show that it first considered the circumstances surrounding the particular case and that the employment of such an applicant would be inconsistent with the safe and efficient operation of the business. In addition to federal discrimination laws, most states have their own laws regarding the extent to which arrest and criminal records can be used as a basis for rejecting a job applicant. 

Who Does The Employee Polygraph Protection Act Of 1988 (EPPA) Cover?

The Employee Polygraph Protection Act Of 1988 (EPPA) covers commercial businesses. Exceptions are businesses whose primary purpose consists of providing armored car personnel; and those involved in the design, or security personnel, in facilities that have a significant impact on the health or safety of any state. Also exempt are companies which manufacturer, distribute or dispense controlled substances. Local, state and federal governmental agencies (such as police departments) are not affected by the federal law, nor are public agencies, such as a school system or correctional institution. However, some states have laws that offer greater protections with certain classes that may include governmental agencies.

What Administrative Body May Impose Remedies For A Violation Of The Employee Polygraph Protection Act Of 1988 (EPPA)?

Under the Employee Polygraph Protection Act of 1988 (EPPA), an individual has the right to take action against a violating employer by filing with the Secretary of Labor. The examinee may recover such legal or equitable relief as may be appropriate, including, but not limited to, employment, reinstatement, promotion, payment of lost wages and benefits, and reasonable costs, including attorney`s fees. Civil penalties may be assessed for not more than $10,000. The U.S. District Court has jurisdiction to issue restraining orders and injunctions. An examinee may bring a private civil action in any Federal or State court of competent jurisdiction. No action may be commenced more than 3 years after the date of the alleged violation. The court has the discretion to allow the prevailing party (other than the United States) reasonable costs, including attorney`s fees.