Equal Employment Opportunity Office Special Issue Laws

While the "Civil Rights Act" sets the stage for many of the protections against discrimination found in today's workplace, there are a number of other important protections contained within a variety of Federal and State laws. The following is a brief discussion of some of those laws.

It is a well-known fact that baby boomers constitute the single largest age group in the country. Not coincidentally, they also make up the largest percentage of America's workers. As this largest segment of American workers ages, the rights of older workers move more and more to the forefront. Sooner or later, every worker in American falls under the protection of laws designed to protect older workers from discrimination.

Age Discrimination in Employment Act - At the Federal level, the Age Discrimination in Employment Act of 1967 (ADEA) prohibits employers from discriminating against individuals who are 40 years old or older. The ADEA's protections apply to both employees and job applicants.

Under the ADEA, it is unlawful to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of his/her age. Under the ADEA, workers who are 40 years old or older are protected against discrimination in such areas as hiring, firing, promotion, layoff, compensation, benefits, job assignment, and training. In effect, employers are also prohibited from depriving an individual of employment opportunities or taking any other adverse action against an individual because of his/her age.

ADEA also makes it illegal to retaliate against an individual because they have opposed unlawful age discrimination or have exercised their rights under the ADEA, including filing a charge of discrimination, testifying, or participating in any way in an ADEA investigation, proceeding, or litigation.

The Age Discrimination in Employment Act is administered and enforced by the Equal Employment Opportunity Commission (EEOC). Age discrimination charges must be filed within 180 days after the alleged discrimination occurred. However, in certain states that have their own age discrimination law and authority administering that law, this timeline varies. In California, employees have 300 days after the alleged discriminatory action or 30 days after a receipt of notice of termination of State proceedings (whichever is earlier) in which to file charges with the EEOC.

Fair Employment and Housing Act - In California, the Fair Employment and Housing Act (DFEH) prohibits harassment and discrimination based upon Age (40 and over), Ancestry, Color, Creed, Denial of Family and Medical Care Leave, Disability (mental and physical) including HIV and AIDS, Marital Status, Medical Condition (cancer and genetic characteristics), National Origin, Race, Religion, Sex, and Sexual Orientation.

Employees or job applicants who believe that they have been discriminated against may, within one year of the harassment, file a complaint of discrimination with the California Department of Fair Employment and Housing.

The Department will investigate the complaint and attempt to resolve the disputes. If the Department finds evidence of discrimination and settlement efforts fail, the Department may file a formal accusation against the employer and the harasser. The accusation may lead to either a public hearing before the Fair Employment and Housing Commission or a lawsuit filed on the complainant's behalf by the Department. The nearest office of the California Department of Fair Employment and Housing is located in the City of Ventura.

Society has not always been tolerant or supportive of persons with disabilities. As late as 1927, the United States Supreme Court, in Buck vs. Bell, issued an opinion written by Justice Oliver Wendell Holmes stating that "…instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind."

While rulings such as this helped to perpetuate the exclusion of persons with disabilities from society and the workplace, significant twentieth century developments helped to change such attitudes. The lax safety standards of the early industrial revolution, and World Wars I and II introduced thousands with acquired disabilities into society. Advances in medicine extended life expectancy and, with longer life, came disabilities associated with age. Gradually, through changing attitudes and legislative mandates, the right of persons with disabilities to fully participate in society and the workplace exerted itself.

Rehabilitation Act of 1973 - The Rehabilitation Act of 1973 sections 501 and 505 covers employers with government contracts in excess of $2,500 and recipients of Federal financial assistance. Section 503 states that government contractors must include an affirmative action clause in each government contract and must implement affirmative action to employ, advance in employment, make reasonable accommodation, and otherwise not discriminate against handicapped individuals. Section 504 states that employers who receive Federal financial assistance need not have an affirmative action plan but must meet similar anti-discrimination requirements. The Rehabilitation Act is administered and enforced by the Office of Federal Contract Compliance Programs (OFCCP). Complaints must be filed within 300 days of the alleged violation (180 days under some circumstances).

Vietnam Era Veterans Readjustment Assistance Act of 1974 - Disabled Veterans are also protected from discrimination through the Vietnam Era Veteran's Readjustment Act of 1974 which requires that employers with Federal contracts or subcontracts of $25,000 or more provide equal opportunity and affirmative action for Vietnam era veterans, special disabled veterans, and veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.

A Vietnam era veteran is a person who (1) served on active duty for a period of more than 180 days, any part of which occurred between August 5, 1964 and May 7, 1975, and was discharged or released with other than a dishonorable discharge; (2) was discharged or released from active duty for a service connected disability if any part of such active duty was performed between August 5, 1964 and May 7, 1975; or (3) served on active duty for more than 180 days and served in the Republic of Vietnam between February 28, 1961 and May 7, 1975.

A special disabled veteran is a person who is entitled to compensation under laws administered by the Department of Veterans Affairs for a disability rated at 30 percent or more; or, rated at 10 or 20 percent, if it has been determined that the individual has a serious employment disability; or, a person who was discharged or released from active duty because of a service-connected disability.

The Vietnam Era Veterans Readjustment Act is administered and enforced by the Office of Federal Contract Compliance Programs (OFCCP). Complaints must be filed within 180 days of the alleged violation. Penalties for violations include the withholding of progress payments on contracts, the termination, in whole or in part of a contract, or debarment of the contractor from future contracts.

Americans with Disabilities Act of 1990 - Americans with Disabilities Act of 1990 extends similar requirements to many private employers. The ADA prohibits employment discrimination against "…qualified individuals with disabilities" and provides for reasonable accommodation for persons who meet the skill, experience, education, and other job related requirements of a position held or desired, and who, with reasonable accommodation, can perform the essential functions of a job.

For the purposes of protection under the ADA, the definition of "individual with disabilities" is very specific. A person with a qualified "disability" is an individual who:

Has a physical or mental impairment that substantially limits one or more of their major life activities;
Has a record of such an impairment, or
Is regarded as having such an impairment.

As a result of the ADA, employers may not discriminate against people with disabilities in regard to any employment practices or terms, conditions, and privileges of employment.

The ADA also requires equal access for persons with disabilities to public accommodations such as public transportation, parks, public and private buildings. ADA is enforced by the U.S. Equal Employment Opportunities Commission.

Fair Employment and Housing Act - In California, the Fair Employment and Housing Act (FEHA) also prohibits employment discrimination and harassment based on a person's disability or perceived disability. The FEHA protects the right of individuals to seek, obtain, and hold employment without discrimination on the basis of physical or mental disability. It also requires employers to reasonably accommodate an individual with a mental or physical disability, unless the employer can show that to do so would cause an undue hardship.

Under the FEHA, the definition of "disability" is expansive. It includes both physical and mental disabilities. Any individual who has an illness or defect which is perceived to be disabling is protected. Individuals with conditions which are not currently disabling, but which may present, or may be perceived as presenting a future health risk or physical problem, are protected. Also, an individual who has a history of a disability is protected, even if the disability is no longer present.

Under both Federal and California law, physical and mental disability do not include conditions such as the unlawful use of controlled substances or other drugs. If the definition of physical or mental disability is broader in the ADA, the ADA definition is incorporated into the FEHA. The FEHA also forbids discrimination on the basis of medical condition. "Medical condition" refers to cancer or to a health impairment related to, or associated with, cancer, for which a person has been rehabilitated or cured.

Employers must give equal consideration to disabled individuals in recruitment activities and are required to make reasonable accommodations during the recruitment process. Employers may not ask general questions about an applicant's physical or mental condition. Specific questions about an applicant's present physical or mental fitness, medical condition, physical condition, or medical history are permissible only if they are directly related to the job in question.

An individual who feels that they have been discriminated against, may file a complaint with the Department of Fair Employment and Housing (DFEH) within one year of the occurrence of the alleged discriminatory act. If the individual did not learn of the act of discrimination until after a year had passed, the period for filing may be extended up to 90 days. The DFEH may attempt to resolve the matter through conciliation and, if necessary, an administrative hearing before the Fair Employment and Housing Commission (FEHC). Alternatively, the DFEH may issue a "right to sue letter" which allows the person to file a lawsuit against the employer directly in court. However, one must exhaust the administrative remedies available from the DFEH before filing a lawsuit in court. In other words, one must file with the DFEH and receive a right to sue letter before a court will hear the case.

The Equal Pay Act of 1963 - The Equal Pay Act of 1963 prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.

Employers may not reduce wages of either sex to equalize pay between men and women.
A violation of the EPA may occur where a different wage was/is paid to a person who worked in the same job before or after an employee of the opposite sex.

If a disparity between a male and female worker performing substantially equal jobs is established, the burden of proof shifts to the employer to justify its actions. The employer can defend its pay disparity in one of four ways: by showing that it was based on a seniority system, a merit system, a system that determines wages based on the quantity or quality of work produced, or some other "factor other than sex." The Act bars employers from reducing the wages of either sex to comply with the law.

The Act, addressing only the issue of sex-based wage discrimination and covering only situations involving substantially equal work, makes no provision as to wage discrimination based on race or national origin.

The Equal Pay Act is enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

Both Congress and the State of California have passed laws prohibiting sex discrimination in employment.

Generally, an employer must give a woman leave from work for the period of time she is sick or temporarily disabled because of pregnancy or childbirth. Upon returning to work, a woman is entitled to her same job or a similar job of at least the same pay unless the employer can show business necessity for not doing so.

A woman generally does not have the right to take leave beyond the actual period she is disabled due to childbirth. However, if an employer on its own gives extended leave for other disabilities, it must also do so for employees with disabilities relating to pregnancy and childbirth.

Family and Medical Leave Act of 1993 - Under the Family and Medical Leave Act of 1993 (FMLA), eligible employees may take up to 12 weeks of unpaid leave during any 12 month period for one or more of the following: the birth of a child; adoption of a child; to care for a spouse, son daughter, or parent with a serious health condition; and when a serious health condition makes the employee unable to perform one or more of the essential functions of his or her job.

The FMLA is enforced by the United States Department of Labor's Employment Standards Administration, Wage and Hour Division.

California Family Rights Act - The California Family Rights Act (CFRA) was established to ensure secure leave rights for the following:

Birth of a child for purposes of bonding
Placement of a child in the employee's family for adoption or foster care<>/li>
For the serious health condition of the employee's child, parent or spouse
For the employee's own serious health condition

In most cases, an employer is not required to pay an employee during a CFRA leave, however in certain circumstances such as the employee's own serious health condition, an employee may use or be required to use accrued vacation time or other accumulated paid leave other than accrued sick leave.

Usually, an employer must continue health care coverage and other benefits for employees during their CFRA leave.

Employers subject to CFRA are those who do business in California and employ 50 or more part-time or full-time employees in any state, including non-profit religious organizations. Covered employers also include the State of California and any of its political and civil subdivisions, and cities and counties, regardless of the number of employees. Leave under the California Family Rights Act (CFRA) may total up to 12 work weeks in a 12-month period and does not need to be taken in one continuous period of time.

The California Family Rights Act is administered and enforced by the California Department of Fair Employment and Housing (DFEH).

Unruh Civil Rights Act - The Unruh Civil Rights Act provides protection from discrimination by all business establishments in California, including housing and public accommodations, because of:

Age
Ancestry
Color
Disability
National Origin
Race
Religion
Sex

This law requires "…full and equal accommodations, advantages, facilities, privileges or services in all business establishments." This includes but is not limited to: Hotels and Motels, Non-Profit Organizations, Restaurants, Theaters, Hospitals, Barber and Beauty Shops, Housing Accommodations, Public Agencies, and Retail Establishments.

The act provides for a variety of remedies, which may include: Out-Of-Pocket Expenses, Cease and Desist Orders, and Damages for Emotional Distress. Court ordered damages may include a maximum of three times the amount of actual damages.

The Unruh Civil Rights Act makes exceptions for senior housing developments. Housing accommodations that meet certain requirements may legally discriminate against families with children.

The Ralph Civil Rights Act -The Ralph Civil Rights Act provides protection from hate crimes. It prohibits violence or threats of violence based on: Age, Ancestry, Color, Disability, National Origin, Political Affiliation, Position in a Labor Dispute, Race, Religion, Sex, and/or Sexual Orientation.

Persons who believe they have been subjected to a hate crime incident may file a DFEH complaint. Complaints must be filed within one year of the alleged discrimination. Persons wishing to file directly in court do not need a "right-to-sue" from the Department of Fair Employment and Housing.

The Ralph Civil Rights Act is administered and enforced by the California Department of Fair Employment and Housing (DFEH).

Today, more and more women of childbearing age depend on their jobs for economic support. Because a majority of women will become pregnant during their working lifetime, it is increasingly important for women to understand their rights as pregnant employees.

Congress and a number of states have passed laws prohibiting sex discrimination in employment that include protections for pregnant workers. They are the Family and Medical Leave Act of 1993 (FMLA), and the California Family Rights Act (CFRA).

Under these laws, terminating a woman from her job because she becomes pregnant, refusing to grant leave or accrued sick pay for disabilities related to pregnancy, and refusing to hire women for responsible jobs because they may become pregnant are illegal practices. These practices discriminate
against women because they impair women's opportunities to obtain employment and to advance in their jobs on the same basis as men.

It is also illegal for an employer to fire a woman from a job, penalize her in terms or conditions of employment, or in any way limit her job opportunities because she is pregnant or may require time away from work for childbearing.

Under the law, disabilities resulting from pregnancy and childbirth are no different from any other temporary disabilities. Any illness or disability caused or contributed to by pregnancy is considered a temporary disability. Therefore, an employer's sick leave plan or temporary disability benefit plan must treat pregnancy and childbirth disabilities the same as other disabilities. Insurance benefits provided by the employer must be equal for male and female employees. The law also requires that if full health insurance coverage is provided for male employees, then full coverage including maternity must be provided for female employees.

The Family and Medical Leave Act of 1993 is enforced by the United States Department of Labor's Employment Standards Administration, Wage and Hour Division, and the California Family Rights Act is administered and enforced by the California Department of Fair Employment and Housing (DFEH).

Federal and State anti-discrimination laws would not be effective if employers could punish employees who complained about such discrimination. Therefore, it is illegal for an employer to take an adverse action against an employee in retaliation for engaging in a protected activity such as filing a discrimination claim, or participating in a complaint process. Examples of such adverse actions include termination, demotion, failure to promote, ostracism, or reduction in wages. For further information on such protections see "Protection Against Retaliation".