Anti-Discrimination Law

The state and federal laws against discrimination in employment are some of the most important exceptions to the general at-will rule.

Under the Title VII of the Civil Rights Act of 1964, federal law prohibits employers from discriminating against employees on the basis of race, color, national origin, religion, or sex. Under a separate act, it is also illegal to discriminate on the basis of a physical disability. Many states also have laws that bar discrimination based on sexual orientation, gender identity, or political views.

Of course, it's not always easy to prove when discrimination has taken place. After all, all grounds for terminating employment, except those which are expressly prohibited, are permitted. Perhaps it would be simpler if there were a list of permitted grounds for termination, with all others being prohibited. But that's not the system we have.

Proving Discriminatory Intent

Because courts can't read minds, discriminatory intent usually has to be inferred from the defendant's conduct and the surrounding circumstances.

Generally, discrimination will have to be proven by indirect evidence. It's rare that an employer, if it does have a discriminatory policy, will have that policy written down anywhere. To make an initial case for employment discrimination, the employee has to show a few things at the outset:

  • he or she is a member of a protected class
  • he or she met the employer's legitimate expectations
  • some adverse employment action was taken against him or her
  • similarly-situated employees who were not a member of a protected class where not adversely treated

Once they have shown this, the employer's burden is to show that it had some valid reason for taking the action it took, which did not have any discriminatory motive.

If the employer cannot prove this, they will lose the case. If they succeed, the burden of proof shifts back to the employee, who has to prove that the employer's "legitimate" reason is actually a pretext.

If any party fails to meet their burden of proof at any point in this process, the other party prevails.

This test can be used to prove discrimination on any basis, whether it's race, religion, sex, or otherwise. However, there are some protected categories whose nature makes it difficult to determine what conduct actually counts as discrimination. They are religion and physical disability. After all, it's easy for an employer to simply say "I don't care what your religion is, or if you have any physical disabilities. I care about your qualifications for the job."

That's well and good, but, sometimes, well-qualified employees or job applicants are unable to function in a workplace because the employer refuses to make a few minor accommodations to the requirements of their religious beliefs, or their physical disabilities. This can sometimes amount to discrimination.

Religious Accommodation

The requirements of an employee's religious faith must be given reasonable accommodation in the workplace. This means that the employer has to make certain changes to accommodate its employees' religious beliefs, as long as these accommodations would not be prohibitively expensive for the employer, would not seriously inconvenience other workers, and would not generally place an undue burden on the employer's operations.

This basically means that an employer does not need to bend over backwards to accommodate your religious practices, but if your religious practices can be accommodated without seriously hindering the employer's business, they have to accommodate them.

For example, if your religion requires you to wear certain headwear, and your job requires you to wear a uniform, you would probably be able to compel the employer to make an exception to its uniform policy, since that wouldn't really affect how you do your job.

On the other hand, if your religion only allows you to work one day per week, and your job requires that you be on call most of the time, your religion has effectively made you unable to do your job, and, in such a case, your employer can refuse to hire you based on your religion.

Disability Accommodation

Employers are also required to make reasonable accommodations for physical disabilities. In short, it is unlawful to discriminate against people based on disabilities, if the employee can perform the essential functions of the job with reasonable accommodation.

Much like religious accommodations, the employer is not required to go to heroic lengths to accommodate an employee's physical disability. Minor changes, however, like lowering a desk to accommodate a wheelchair user, or placing a worker on the ground floor of a building when their department would normally be on the second floor (especially if the building has no elevator) are both considered reasonable accommodations.

Of course, if the employee's disability renders them completely unable to do the job for which they were hired, or are applying, and no reasonable accommodation can change that fact, the employer can refuse to hire them based on their disability.