As previously discussed, even if you are an at-will employee, you cannot be fired for certain reasons including sex. Even if you weren’t fired, you cannot be discriminated against in other ways by your employer for your sex, including pregnancy and sexual orientation.
What is discrimination?
- Discrimination means treating an employee unfavorably in hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, or any other term or condition of employment.
Is every kind of discrimination illegal?
- It may be surprising, but not all discrimination is illegal. For example, it is not illegal to discriminate against hiring someone because they do not have the required educational credentials or years of experience in the field. It is also not illegal to layoff someone based strictly on lowest seniority or job performance.
- However, it is illegal to discriminate against someone based on that person’s sex, including pregnancy and sexual orientation.
- Beware that some employers will give a legal reason for discrimination to hide the true illegal one. This is known as a “pretext.”
What are the illegal employment practices prohibited by discrimination based on sex?
- Harassment. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the employee being fired or demoted).
- Examples of harassment based on sex.
- Unwelcome sexual advances or requests for sexual favors.
- Disparaging remarks about a person’s sex in general, such as “women don’t belong in leadership positions.”
- Any verbal or physical harassment of a sexual nature.
- Who is the harasser? The harasser can be the employee’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a contractor, client, or customer. The harasser can also be anyone of any sex.
- Examples of harassment based on sex.
- Unequal pay. The Equal Pay Act provides that men and women performing substantially the same work must be paid equally. This includes all types of compensation, including salary, bonuses, other financial benefits like profit sharing, medical benefits, paid time off, and reimbursement for expenses.
- Pregnancy discrimination. It is illegal to discriminate against a woman who is or was pregnant or is planning a pregnancy. This includes discrimination based on conditions related to giving birth, such as breastfeeding.
- Discrimination against a woman for a medical condition that arises as a result of pregnancy, such as post-partem depression or diabetes, is prohibited.
- Reasonable accommodation. An employer has the obligation to reasonably accommodate an employee's medical condition as a result of pregnancy or childbirth unless it would be an undue hardship on the conduct of the employer's business. The need for an accommodation should be requested in writing, so that the employer is put on notice of the request.
- Caring for children. It is illegal to discriminate against workers with caregiver responsibilities. While this certainly includes women with newborn children, it can also be applied to men who have caregiver responsibilities.
- Pregnancy leave. The Family Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Employers are prohibited from discriminating or retaliating against employees who have exercised or attempted to exercise any FMLA right.
- Nursing mothers. The Fair Labor Standards Act (FLSA) requires employers to provide eligible employees with reasonable break time to pump breast milk for nursing a child for one year after the child’s birth. Under the law, employers are required to allow eligible employees reasonable break time to pump whenever needed. Employers are also required to provide eligible employees with a private place to pump—space that is shielded from view, free from intrusion, and NOT in a bathroom.
- Sexual orientation and gender identity discrimination. In 2020, the U.S. Supreme Court held in Bostock v. Clayton County, Georgia that the prohibition against sex discrimination under Title VII of the Civil Right Act applied to homosexual and transgender individuals. Therefore, it is illegal for an employer to discriminate against a person because of their sexual orientation or gender identification.
- Retaliation. It is illegal to treat someone unfavorably or subject that person to any adverse employment action, such as demotion or termination, because that person requested a reasonable workplace accommodation, complained about one of the above forms of discrimination, or if that person participated in an investigation of discrimination or testified against the employer for discriminating against themselves or others.
Because you are legally protected from retaliation, you should not be afraid to request a reasonable workplace accommodation, or complain or truthfully report workplace discrimination. If you believe that one of the above applies to you, or if you have any concerns about this topic, you should seek legal guidance.
Contact Us for Legal Assistance
When it comes to looking for legal help with any type of illegal employment discrimination, Weiler Law PLLC is here to help. Our team of attorneys understands the complexities involved in these cases and is dedicated to providing the best possible representation. We can work closely with you throughout the process to ensure that your rights are protected.