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The Complicated World of Employment Discrimination (Part V)

By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

Note: This article contains content adapted from lesson material I wrote for APUS classes. It is the fifth article in an eight-part series on employment discrimination law and sound employment practices. In this article, we will look at some of the other federal anti-discrimination laws, including protections for age, pregnancy and other characteristics.

Start a management degree at American Public University.

Age Discrimination in Employment Act Protects People 40 and Older

The Age Discrimination in Employment Act (ADEA) of 1967 and its subsequent amendments prohibit discrimination against anyone 40 years of age or older in employment decisions. Although this ‘40 years or older’ threshold may seem arbitrary and capricious, the purpose of this law was specifically to prevent American businesses from abandoning older workers – who had earned higher wage brackets through years of service – with younger, cheaper employees.

Historically, the ADEA was enacted roughly 20 years after the end of World War II (WWII). Most WWII soldiers were in their twenties when they went to war, which put them in their forties at the time of the Act’s passing.

The ADEA was also passed right during the most turbulent period of the Vietnam War, in which the average American soldier age was 19. So it is easy to see hints of both noble intentions to protect WWII veterans from unemployment and a strategy to support the Vietnam War effort in the design of this legislation.

The ADEA applies only to employers with 20 or more employees. Although federal law provides no protection for age-based discrimination against anyone under the age of 40, several states have enacted their own laws pertaining to age-related discrimination that supplement federal mandates. Employers should maintain familiarity with their state’s laws and avoid discrimination against anyone based on age wherever possible – irrespective of its legality.

Pregnancy: Another Protected Class

The Pregnancy Discrimination Act of 1978 prohibits discrimination on the basis of pregnancy in employment decisions. Further, the Family and Medical Leave Act (FMLA) of 1993 provides additional benefits for pregnant couples, including up to 12 weeks of unpaid leave per year.

Other Areas Protected from Discrimination

Aside from the classifications discussed in this article series so far, there are few other specific protections against discrimination afforded by federal law. Technically speaking, an employer is free to discriminate for any reason or no reason at all, so long as the reason is not a classification protected by law.

For example, let’s say that an employer really dislikes red shoes and refuses to hire a person because he or she wears red shoes to an interview. As arbitrary and baseless as this refusal to hire may seem, it is not illegal.

However, employers should carefully consider any connections between a basis for discrimination and established, protected classes. For example, hair color is not, on its own merit, a specifically proscribed classification of discrimination under federal law.

However, race is a protected class, and there are very strong correlations between hair color and race. Discrimination based on a factor such as someone’s hair color would most likely be construed in a court of law as illegal based on the latter.

Imagine that same employer despises people with red hair. He or she will very likely commit illegal discrimination if that aversion is used as a basis for employment decisions.

However, it should be noted that in this context, we are talking about natural hair color. Any artificial hair coloring by an individual that is not correlated with a protected class would in theory be a legal basis for an adverse employment action.

When in doubt, the rule of thumb for any employer should be to assume protections exist and act in the best interests of all parties. Discrimination between candidates should not be based on anything other than the actual, material job qualifications.

But what happens when stated job qualifications would require discrimination based on a protected class? In the next part of this article series, we’ll look at the concept of bona fide occupational qualifications and how they may circumvent anti-discrimination laws in certain limited contexts.

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.

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