Under Title VII of the Civil Rights Act of 1964 (Title VII) and other employment laws, there are seven main protected classes of individuals in the United States. These types of individuals are protected under federal law from employment discrimination. The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII, which protects both employees and applicants within these protected classes against employment discrimination that includes unfair treatment, harassment, denial of reasonable accommodation, and retaliation. Most laws under the EEOC cover employers of 15 or more employees. However, employers of less than 15 employees are likely covered by state and local laws prohibiting employment discrimination. These are often based on the same or similar protected classes included within Title VII. In fact, these state and local anti-discrimination laws may even go beyond the protections individuals have under federal laws alone.
Meanwhile, other federal antidiscrimination laws cover most employers. The Equal Pay Act of 1963 (EPA) covers employers with 2 or more workers. Elsewhere, the EPA requires that employers pay men and women equally for equal work. Next, the Immigration Reform and Control Act (IRCA) covers employers of 4 or more employees. IRCA preserves jobs for those entitled to them, namely, citizens and aliens authorized to work in the U.S. Finally, the Age Discrimination in Employment Act of 1967 (ADEA) covers employers who employ 20 or more workers. Specifically, the ADEA prohibits employment discrimination against people 40 years of age or older.
What Is Employment Discrimination Against Protected Classes?
Generally, employment discrimination is when an employer treats or allows others to treat the employee or job applicant less favorably based on one or more of the top seven protected classes under federal law or any state and local regulations. Employment discrimination can occur against either an individual or an entire group. Under federal, state, and local laws, individuals have a right to work in an environment free of discrimination. Therefore, employers may not deny them employment, harass, demote, or terminate them, pay them less, pass them over for promotions, deny them training, withhold their fringe benefits, or treated them less favorably based on a protected characteristic. Employers may also not create neutral job policies that disproportionately exclude protected classes if they are not job-related. Finally, employers may not segregate or otherwise limit individuals to deprive them of opportunities because of these protected characteristics.
In addition, it is illegal for an employer to retaliate against a person within any one of the protected classes. Retaliation against protected classes is the most frequently cited charge with the EEOC. In fiscal year 2021, 56% of charges filed with the EEOC were for retaliation. Briefly, retaliation may occur when an employer punishes an employee or job applicant for asserting their rights under EEO and other anti-discrimination laws. It may also occur when an individual complains about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
What Are the Top Seven Protected Classes?
Title VII and other employment laws prohibit discrimination against both employees and job applicants based on the seven main protected classes or characteristics. These protected classes include race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information. The following protected classes account for the vast majority of discrimination charges filed annually with the EEOC and state fair employment practices agencies.
1. Race and Color
Race discrimination constitutes treating an employee or job applicant unfavorably based on their specific race. Meanwhile, color discrimination occurs when an employer treats an employee or job applicant unfavorably because of their skin color or complexion. Notably, more than a third of discrimination charges filed with the EEOC are charges of race discrimination. These types of discrimination also include prejudices about the individual’s personal characteristics associated with race or color. Furthermore, race discrimination can include employment decisions based on assumptions or stereotypes about a race. These assumptions or stereotypes may cover an individual’s or group’s:
- traits, or
- job performance.
Race or color discrimination can also include treating an individual unfavorably because they are married to or associated with a person of a certain race or color. In fact, this race or color discrimination can even occur when the person inflicting discrimination is the same race or color as the victim. Examples of race discrimination include:
- racial slurs,
- offensive or derogatory remarks, and
- displaying racially-offensive symbols.
In the end, the law does not necessarily protect against simple teasing, offhand comments, or isolated incidents. Rather harassment must involve frequent or severe actions that create a hostile work environment. Harassment also applies when it results in an adverse employment decision, like a firing or demotion.
Religious discrimination involves treating an employee or applicant unfavorably because of their religious beliefs. The law applies not only to traditional organized religions, like Christianity, Buddhism, and Islam, but to any other sincerely-held religious, ethical, or moral belief, as well. Successful religion-based charges filed with the EEOC result in monetary settlements of several millions of dollars a year. Like race or color discrimination, religious discrimination can also involve treating an individual differently because they are married to or associate with someone of a particular religion. Once again, harassment must be frequent or severe enough to create a hostile environment. Religious discrimination and harassment may include:
- offensive remarks about a person’s seriously-held beliefs, and
- job segregation based on religion (including religious garb or grooming practices).
Barring undue hardship on a business, an employer must reasonably accommodate an individual’s religious beliefs or practices. In brief, this entails making reasonable changes in the workplace to eliminate a barrier that prevents a covered individual from performing a job or receiving job-related benefits. Examples of a religious accommodation may include:
- altering an employee’s schedule so that they can attend church, or
- suspending a portion of a dress code so that an employee can wear traditional facial hair.
Additionally, an employer may not force an employee to participate in any particular religious activity as a condition of employment.
3. Sex (Gender)
Sex discrimination occurs when someone in the workplace treats an employee or applicant unfavorably because of their sex. In fact, the definition goes further to include a person’s sexual orientation, gender identity, or pregnancy-related condition. Harassment on the basis of sex is illegal. In some instances, harassment can involve “sexual harassment.” This includes unwelcome sexual advances or requests for sexual favors. However, the harassment does not always have to be sexual in nature. It can include other offensive remarks about a person’s sex.
Likewise, sex discrimination can apply when someone treats the individual differently because of their association with someone or a group associated with that particular sex. Finally, a job policy or practice that applies to everyone can be illegal if it negatively impacts people of a certain sex and is not job-related. In addition to these requirements:
- The Equal Pay Act of 1963 (EPA) requires most employers to pay men and women equally when they perform jobs that require equal skill, effort, and responsibility under similar working conditions.
- Under Title VII, employers may not use marital status or number and ages of children to discriminate against women or use it to deny or limit employment opportunities.
Sexual Orientation and Gender Identity (SOGI) Discrimination
In Bostock v. Clayton County, Georgia, No. 17-1618, the U.S. Supreme Court ruled that, under Title VII, employers may not fire individuals based on the protected classes, sexual orientation, or transgender status. Furthermore, Title VII forbids SOGI discrimination and harassment in all aspects of employment. To illustrate the need for employers to further examine their own SOGI anti-discrimination policies, LGBTQ+ sex discrimination charges filed with the EEOC have steadily increased every year since 2013.
Pregnancy Discrimination Act (PDA)
Additionally, the PDA amended Title VII and prohibits employment discrimination and harassment based on pregnancy. Under the PDA, employees temporarily disabled related to pregnancy may take disability leave if the employer normally allows it in other situations. Finally, federal wage and hour law protects nursing mothers’ rights to break time for the purpose of expressing milk in the workplace.
4. National Origin
National origin discrimination involves treating individuals unfavorably because they are from a particular country or part of the world. Reasons may also include their ethnicity, accent, or because they appear to be of a certain ethnic background, even if they are not. This type of discrimination also covers those treated unfavorably because they are married to or associated with someone of a certain national origin. What’s more, the victim and the person discriminating may even be of the same national origin. Overall, national origin-based discrimination charges make up over 9% of total charges filed every year. Similar to discrimination against other protected classes, an employer’s job policy may not negatively impact people of a certain national origin if it is not job-related. Thus, an employer may only require employees to speak fluent English (an “English-only rule”), for example, if:
- it is needed to ensure operational safety or efficiency, and
- is put in place for nondiscriminatory reasons.
Under the Immigration Reform and Control Act of 1986 (IRCA), it is illegal for an employer to discriminate with respect to a person’s citizenship or immigration status. Unless required to by law, employers may not hire only U.S. citizens or lawful permanent residents. In addition, employers may not refuse lawful documentation or demand additional documentation beyond that which is legally required to verify employment eligibility. Lawful documentation includes documents allowed under the Department of Homeland Security’s (DHS’s) Form I-9.
Age discrimination involves treating an individual unfavorably because of their age. Under the Age Discrimination in Employment Act (ADEA), employers may not discriminate against people who are age 40 or older. However, some state laws protect against discrimination of younger individuals. EEOC statistics indicate that employees age 40 and over make up over 50% of the non-federal civilian labor force. Harassment as a part of age discrimination can include offensive or derogatory remarks about someone’s age. Furthermore, an employment policy or practice that applies to all should not negatively impact those over age 40. The exception to this is if the policy relies on a reasonable factor other than age (RFOA). An employment practice is considered to be based on an RFOA if it was reasonably designed and administered to achieve a legitimate business purpose. Specifically, the factor may be reasonable based on:
- the extent that it relates to the employer’s stated business purpose;
- how accurately the employer defined and how fairly they applied the factor;
- whether the employer limited supervisors’ subjective discretion when assessing employees;
- in what way the employer assessed the adverse impact of the employment practice on older workers; and
- the degree of harm to individuals within the protected class.
Disability discrimination occurs when an employer covered by the Americans with Disabilities Act (ADA), or applicable state and local laws, treats a qualified person with a disability unfavorably because of their disability. Furthermore, the law protects those who are perceived to have a disability or are related to a disabled person. According to the U.S. Centers for Disease Control (CDC), 1 in 4 Americans lives with a condition or impairment classified as a disability. Under the ADA, individuals within this protected class must have an impairment that is:
- not transitory (lasting or expected to last six months or less), or
- minor (even if he or she does not have such an impairment).
Covered individuals may show they have a disability in one of three ways:
- they have a physical or mental condition that substantially limits a major life activity (walking, talking, seeing, learning, etc.)
- a person has a history of disability (for example, a cancer that is in remission)
- this person is subject to an adverse employment action and their impairment is not transitory or minor
Barring undue hardship on a business, an employer must reasonably accommodate an individual with a disability. In brief, this entails making reasonable changes in the workplace to eliminate a barrier that prevents a covered individual from applying for a job, performing job duties, or receiving job-related benefits and privileges. Examples of a disability-based reasonable accommodation may include:
- making a worksite accessible,
- flexible schedules, or
- altering or removing non-essential job duties.
Finally, federal law limits what employers may ask about an applicant’s disability during the application and hiring processes.
7. Genetic Information
Title II of the Genetic Information Nondiscrimination Act of 2008 (Title II of GINA) prohibits employment-related genetic information discrimination. According to a study by the American Association for the Advancement of Science, 1 in 5 seemingly healthy adults carries disease-related genetic mutations. Generally, genetic information discrimination involves discriminating against individuals because of their genetic background. Specifically, this includes information about:
- an individual’s genetic tests,
- the individual’s family members’ tests,
- their family medical history,
- an individual’s request for or receipt of genetic services,
- a manifestation of a disease or disorder, or
- participation in clinical research.
In addition, Title II of GINA restricts how employers may request, require, disclose, or purchase genetic information. Generally, employers must keep genetic information confidential and in a separate medical file. However, there may be exceptions in which employers may disclose relevant genetic information pursuant to a court order or investigation. Other exceptions to the rule include:
- when an employer receives genetic information inadvertently or pursuant to FMLA;
- in cases where an employee receives voluntary health or genetic services from an employer; or
- if the employer acquires genetic information from commercially and publicly available sources.
Recent Cases of Discrimination Against Protected Classes
Each year, the EEOC receives tens of thousands of charges alleging workplace discrimination against protected classes. Accordingly, the EEOC tallies the charge statistics for the fiscal year. These statistics are broken down by specific protected classes to determine a percent of the total. For example, in fiscal year 2021, among all protected classes, race discrimination charges represented 34.1% of all charges filed. The following are some recent cases alleging discrimination against protected classes:
- In EEOC v. Tampa Bay Delivery Service, LLC, Civil Action No. 8:21-cv-02302 (Employer to Pay $50,000 in EEOC Religious Discrimination Lawsuit), an employee of Tampa Bay Delivery Service, LLC (the defendant) requested to take Sundays off in order to attend church. Nonetheless, the defendant scheduled the employee for a Sunday shift. Later, the company fired the employee when they failed to show up for the scheduled Sunday shift. A Florida district court decided that Tampa Bay Delivery Service, LLC had discriminated against the employee on the basis of religion. Subsequently, the district court ordered the defendant to pay $50,000 to settle the religious discrimination lawsuit.
- Meanwhile, in EEOC v. LJS Opco Two, LLC d/b/a Long John Silver’s Store #70250 (Franchise to Pay $200,000 in Sexual Harassment and Retaliation Lawsuit), an employer subjected a teenage female employee to sexual harassment at its location in Centralia, Illinois. All in all, the alleged harassment involved several clear offenses that included lewd comments, propositions for sex, sexually explicit text messages and videos, and unwanted touching. Furthermore, the employer retaliated against the employee in response to her objections. The suit alleges that the employer purposely refused to investigate the teenage employee’s complaint. An Illinois district court ordered the employer to pay $200,000 to the former employee in a two-year consent decree.
Bona Fide Occupational Qualifications
Title VII, however, provides an exception to its prohibition of employment discrimination based on the protected classes of sex, religion, and national origin. That exception is known as Bona Fide Occupational Qualifications (BFOQ). BFOQ allows that, in some extremely rare instances, an individual’s sex, religion, or national origin may be reasonably necessary to carry out a particular job function in an employer’s normal operation of a business or enterprise. Notably, race is not one of the protected classes included in this exception. Therefore, employers cannot consider race a BFOQ. BFOQ exceptions are evaluated on a case-by-case basis. In each case, the following elements must be present:
- A list of reasons cited by the employer for excluding people in the protected class.
- Identify the essence (or fundamental objective) of the employer’s business, determined by analyzing the service or product the employer provides.
- Determine whether the essence of the business would be undermined if the employer did not hire persons of the given protected class.
- Ascertain whether people outside of the BFOQ have successfully performed the job.
- Interview people who hold or have held the job to find out if the given protected class is necessary for the job’s performance.
Employer Takeaways on Protected Classes
Undoubtedly, staggering charge statistics of discrimination against protected classes and their respective cases are a reminder to prevent EEO violations. Therefore, employers should familiarize themselves with protected classes under Title VII and other EEO laws. And furthermore, they should ensure that they are compliant with anti-discrimination laws covering protected classes at the federal, state, and local levels. Ways to prevent discrimination against protected classes in the workplace include:
- Creating an anti-discrimination policy to promote a healthy work environment and provide an affirmative defense against litigation.
- Establishing a culture of workplace civility.
- Providing a complaint procedure and harassment complaint form for employees to document and submit complaints of workplace harassment.
- Administering prevention training to promote inclusion and diversity for protected classes. This may include bystander intervention training to encourage employees to speak up if they observe discrimination or harassment.
Remember employers may, indeed, be vicariously liable under the law if their supervisors participate in discrimination or harassment.
Harassment & Discrimination Prevention Training for Employees
State, federal, and local laws prohibit harassment and discrimination against employees and job applicants based on several protected classes. Accordingly, various court decisions have clarified that employers must take reasonable steps to prevent such harassment and discrimination. For this reason, Personnel Concepts created the Harassment & Discrimination Prevention Training for Employees. This interactive training course discusses forms of harassment and discrimination that could occur in the workplace. In addition, the course covers how to prevent harassment and discrimination against protected classes and addresses ways to report complaints.
NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.