Title VII and ADEA
What types of employment actions does Title VII protect?
- Hiring and firing
- Promotions
- Benefits
- Transfers and layoffs
- Training
- Compensation
- Retirement plans
- Any other terms or conditions of employment
I work for a small company. Am I covered by Title VII?
If your company has 15 or more employees, Title VII covers you. If your company has less than 15 employees, there may be similar protections provided by state law.
SIDEBAR: The ADEA covers employees with 20 or more employees.
I have an employee who works for me who is turning 65 next month. Can I make him take retirement?
No. Under the ADEA, mandatory retirement was outlawed with the exception of a few positions (airline pilots and some public-safety officers).
Federal laws always seem to have exceptions. Are there any exceptions to the ADEA?
Yes. Generally speaking there are three:
- Law enforcement, firefighters and certain other public-safety employees (air traffic controllers);
- Executives in "high policy-making positions," provided their annual retirement benefit to be paid them is $44,000 or more; and
- If the employer can prove that age is a bona fide occupational qualification (e.g., airline pilots). This is a difficult burden for employers to meet.
I want to replace a 55-year-old worker with a 41-year old. Is this allowed because both employees are in the protected class?
Though the facts would have to be looked at more carefully, it is likely that it would not be acceptable. The intent of the ADEA is to protect older workers, and that can be viewed in relative terms. Replacing a 43-year old with a 41-year old, however, would most likely not be a problem.
CAUTION: Employers need to be careful what they say in the workplace. Even if there is no age animus, statements to an older employee that "both of us have been around a long time and make a lot of money" or "you're a war horse" have been found by the courts to be indicative of age discrimination.
May I ask an employee to waive their rights under the ADEA?
An employer may ask an employee to waive his rights. However, there are some specific requirements which must be met in order for the waiver to be enforceable. The waiver must:
- be in writing and understandable, and clearly present the agreement and waiver;
- specifically refer to the ADEA rights or claims;
- may not refer to rights or claims that arise in the future;
- be in exchange for valuable consideration beyond what the employee would normally be entitled;
- advise the employee in writing that he consult an attorney before signing the waiver;
- provide at least 21 days to consider the agreement;
- provide 7 days to revoke acceptance of the agreement; and
- for employment termination or exit incentive programs, the employee must be given certain information that is easily understood as to what groups or class of individuals are entitled to participate in the program, as well as the titles and ages of all those eligible or selected for the program.
My hiring manager is a light-skinned African-American. Is it discriminatory if he does not hire dark-skinned African-Americans?
The law provides that it is discriminatory to make an employment determination based on skin color or based on any characteristic associated with a particular race. The fact that the hiring manger is African-American is not relevant.
Is it okay to assign my minority employees to handle most of my minority accounts or minority locales?
This type of action is illegal if it will deprive the employee of an employment benefit. If the nonminority territories or accounts provide for greater commissions or opportunities for advancement, this could raise a race discrimination claim.
My company has a no-beard policy. Is there any problem with this?
It is possible that the policy could be discriminatory. Some African-American men suffer from pseudofolliculitis barbae (severe shaving bumps). You may wish to rethink the policy unless it is in place as a result of business necessity.
I have a number of employees for whom English is a second language. Can I require them to speak only English when they are on the job?
The EEOC has taken the position that "English only" rules are presumed to be discriminatory. They are usually allowed only if the employer can show a business necessity: for example, a job that requires interacting with customers who only speak English.
My employee refuses to work on Saturday because of her religious beliefs. All of my employees are required to work on the weekends. Do I have to give her Saturday off?
The law requires that an accommodation be made so employees can follow their religious beliefs. The tricky part is that the accommodations sought must be reasonable. If they would result in extra costs for overtime or create problems with other employees, the courts may find that the accommodations are not necessary.
TIP: It is best to try to work out an accommodation with the employee. Using the above question, if your business is open on Sunday as well as Saturday, an accommodation may be to have this employee work on Sundays.
An employee says that he belongs to the Red Sox Nation. They believe that all followers must attend every Red Sox game. Does Title VII protect this type of claim?
No. The belief has to be a bona fide religious belief. In looking at what is bona fide, the courts will look to see if:
- the practices are actually mandated by the religion;
- the belief occupies a place in the believer's life similar to that filled by the idea of "God;" and
- it is more than someone's personal moral code.
We have a number of women working in our factory who say that wearing a dress is required by their religion. I am concerned about safety; can I make them comply with our dress code and require that they wear pants instead?
If safety is truly the issue, then yes you can require them to comply.
CAUTION: You cannot require an employee to wear something different than what may be required by their religion if the reason for the request is a concern that it will make customers or coworkers feel uncomfortable.
What is sex discrimination?
Sex discrimination occurs when someone is treated differently because of his or her sex. It takes a number of forms.
May an employer make it a requirement that all secretaries be women?
No. This would be sex discrimination based on gender. The situation would be no different if a woman applied for a position in the shipping department and was turned down because the manager believed that women could not handle manual labor. The only time an employer can specify gender is where it is a bona fide occupational qualification.
I recently applied for a job that a male friend applied for as well. He was not asked, as I was, whether I had preschool age children. Is this fair?
This is an example of "sex-plus" discrimination and it is illegal.
An opening recently came up in my company for an outside salesperson. When I applied, the boss said he wanted a man because it was not safe for women to travel. Is this a valid reason to deny me the position?
No. Whether it is safe for you to travel is a determination that you need to make, not your boss. Denying you this opportunity may constitute sex discrimination.