In this post, we’ll be analyzing actual court rulings and talking about how workplace discrimination, retaliation, and accommodation laws affect you. First, I’ll provide you with a brief overview of what each of these words mean, because a lot of you think you know what they mean, but are very clearly misinformed. As usual, all relevant statutes are linked.
Unlawful discrimination refers to unfair or unequal treatment of an individual (or group) based on certain characteristics, including age, disability, ethnicity, gender, marital status, pregnancy status, national origin, race, religion, and sexual orientation.
Laws prohibiting discrimination originated at the federal level through federal legislation like the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1992, or federal court decisions (like Brown v. Board of Education). Most states also have anti-discrimination laws.
These laws have been gradually expanded to protect discrimination against victims of sexual harassment, discrimination against people on the basis of their genetic information, and (extremely recently, in nineteen states) discrimination against victims of domestic abuse (a topic we definitely will be talking about in a future post).
In the upcoming post about discrimination, I’ll tell you what constitutes discrimination (being fired because you’re a pregnant female) and what does not (being fired because you called your boss an “insufferable jackass”).
Unlawful retaliation occurs when an employer punishes an employee for exercising their rights under Title VII. Retaliatory actions may include (but aren’t limited to) demotion, termination, or creation of a hostile work environment.
Should an employer take an “adverse action” against an employee who questions employment practices, files a charge of discrimination with the EEOC, or reports any other unlawful practices to any other government agency (DOL, NLRB, IRS, state agencies, etc.), that employers actions may be considered retaliatory.
In the upcoming post about retaliation, I’ll go into excruciating detail about protected activities and how employees and employers can protect themselves. (Because let’s be honest guys, this shit happens a lot in our industry. I’m looking at you, salon owners who fire people when they file wage claims and misclassification paperwork.)
The Americans with Disabilities Act prohibits employment discrimination on the basis of disability, but also requires employers to provide reasonable accommodations (changes to the workplace or the worker’s job duties) to allow qualified employees with disabilities to work.
The definition of “disabilities” has been expanded to protect lactating mothers and pretty much anyone who has a “physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.” People who have a “known association or relationship” with a disabled individual are also protected.
Why is “qualified” italicized? Because only qualified applicants are protected. Qualified applicants meet the skill, experience, education, or other requirements of an employment position and who can perform the essential functions of the position with or without reasonable accommodation. When courts determine whether or not a person actually has a valid ADA claim, this factor is heavily considered. (As a sidenote, this is why written job descriptions are important and should be structured before you even begin hiring.)
The ADA is broad, and that post is going to be quite long. (For example, alcoholics are typically covered, but current illegal drug users are not. As mentioned above, nineteen states also now protect victims of domestic violence, sexual violence, and stalking.)
Now that you’re familiar with the lingo, check out the related posts!
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Recently my employer had written up a new policy that all commission employees were to sign, stating that any time not spent servicing clients was to be used cleaning, receptioning or anything along those lines except for a half an hour lunch break and two 10 minute breaks depending on length of shift. I know that technically these are the acceptable labor laws in my state however my salon is not FLSA compliant and pays us commission only without tracking hours. I never refused to sign but mentioned I’d be more comfortable contacting the labor board before doing so and needless to say this did not go over well. The following day I was written up for insubordination. I’ve been at the salon for years and have never had any disciplinary problems and already help with cleaning and phones but I’m busy and look forward to the minimal down time when I have the chance. I see you noted that questioning employee oyment practices was included, would you consider this to fall under that umbrella? I’ve been getting treated very coldy and I’m concerned on how this may continue.
I would consider that retaliation. It seems like she’s creating a hostile work environment because you questioned the legality of the agreement. If I were you, I’d bring this change in her behavior up to her in a private meeting and let her know, “Hey, I think you’re upset about this and that’s okay, but it’s not okay for you to penalize me for questioning the legality of the arrangement. If you’re making a mistake, wouldn’t you rather find out now and correct it before the labor department or IRS does?” I’d mention the EEOC regulations against retaliation as well, letting her know that you understand most salon owners aren’t trained to know about those details, but that it’s really important that she take time to get familiar with them before she makes a serious mistake and incurs the wrath of someone far less patient and understanding than you are.
Love your blog! We met at Hand and Stone. I am very impressed by your work here!!! Write me back if you can I subscribed to your newsletter. So nice meeting you.
Thanks! 😀 Nice to meet you too!