Employment Law

Employment Discrimination Sex, Genetics and Age

Arguably, the initial step that must be taken to reach social equality in the workplace is putting in place measures that will create legal equality, because where legal equality lacks, and no legal repercussions exist, social inequality is ostensibly legitimized. Although various legislative Acts have long been enacted to protect marginalized communities, they are only a precursor to the legal protections that are yet to come.

In a companion article, “Employment Discrimination Basics,” we discussed the Civil Rights Act (“CRA”) and the prohibition against employment discrimination as it relates to race, national origin, and religion. Race, national origin, and religion are recognized as protected classes under the CRA, in addition to sex, age, and genetics. In this article, we will discuss three “protected classes” where substantial advancements have been made to ensure there is “equal treatment under the law,” as required by the Fourteenth Amendment. First, we will discuss sex-based discrimination under various legislative Acts, such as the Civil Rights Act (“CRA”), the Pregnancy Discrimination Act (“PDA”), the Family and Medical Leave Act (“FMLA”), and the Equal Pay Act (“EPA”). Despite having 4 legislative Acts covering so many areas related to “womanhood,” the protective measures contained therein to ensure equal treatment amongst women and men in the workplace have not completely closed the gap.  

Next, we will discuss genetic discrimination, which has shown to be a pervasive issue in the employment discrimination realm. In a recent survey, of 1,000 individuals who were deemed at risk in developing certain genetic conditions, around 22% reported that they had been discriminated against on this basis. Although many employees may have never considered discriminatory practices relating to certain genetic conditions and diseases, there are growing provisions to protect this nuanced area.

Finally, we will conclude with age discrimination under the CRA and the Age Discrimination in Employment Act (“ADEA”). Although the CRA and the ADEA prohibit substantially the same discriminatory conduct, the ADEA’s provisions have a unique advantage over the CRA’s, in that people over 40 years old, who invoke the ADEA’s protections can legally receive better and/or advantageous employment opportunities over their under-40 counterparts.

The Civil Rights Act (CRA): Title VII

The CRA—which passed in 1964 during the Civil Rights movement and during a strong opposition to desegregation—was intended to be comprehensive legislation aimed at “ensuring equal protection under law” as required by the Fourteenth Amendment, as stated above. All three government branches came together to create a legislative package that would address discrimination in various areas deemed essential to a healthy and thriving democracy. Employment, covered in Title VII, is only one area covered by the CRA and is the only topic that will be covered in this article.

The CRA was discussed at length in a companion article, “Employment Discrimination Basics.” For more on the CRA and its particulars, review the companion article. However, to recap, CRA broadly applies to all stages and phases in the employment process, such as the application process, the interview process, hiring, retention, promotions, demotions, terminations, and all other employment conditions and privileges.  The CRA generally categorizes discrimination into the types, with all being prohibited under the CRA. The three discriminatory practices that are prohibited under the CRA are disparate treatment discrimination, disparate impact discrimination, and harassment. See “Employment Discrimination Basics on a detailed discussion disparate treatment vs. disparate impact discrimination and what harassment means in the employment law context.

The CRA also prohibits retaliation against any employee who asserts their rights under the CRA, meaning an employer cannot terminate, demote, or deny any employment conditions or privileges to an employee who has brought a discrimination claim against the employer with the EEOC. Interestingly, the CRA’s provisions also extend protections to those who associate with someone in a protected class. For example, your employer cannot hit you with an adverse employment action because your cousin is a gay man, your spouse is pregnant, or your mother has an inherited genetic condition, etc.

The Equal Opportunity Employment Commission (“EEOC”) is the agency charged with ensuring compliance with the CRA’s provisions and investigates employment discrimination claims coming within the CRA’s purview. An employee who believes they have been discriminated against generally must bring a claim against their employer with the EEOC to be able to sue their employer in court. The standard time limit to bring a claim with the EEOC is 180 days, with the measuring date being the date on which the “adverse employment action occurred.” Federal Government employees have much less time—45 days, to be exact—to bring a claim with the EEOC.

Not all employers are bound by the CRA’s provisions, but generally state and local governments, private employers, employment agencies, labor organizations, and apprenticeships and training programs must comply with the CRA as long as they have 15 or more employees (with limited exceptions, depending on the particular Act contained within the CRA).

Sex-Based Discrimination

Sex-based discrimination under the CRA is a broad category that covers many issues relating to sex, such as pregnancy, nursing, motherhood and caregiving, sexual harassment, sexual orientation, gender identity, and pay. We’ll discuss each individual topic in detail below. In addition to the CRA, which includes the PDA, other legislative Acts that protect against sex-based discrimination are the FMLA, the FLSA, the ADA, and the EPA.

Harassment v. Sexual Harassment

The CRA prohibits both sex-based harassment and sexual harassment. Harassment is any ongoing disruptive or discriminatory behavior that either: (1) creates a hostile work environment; or (2) results in an adverse employment action taken against the employee, such as demotion, termination, etc. To be illegal, harassment, as previously stated, must be ongoing (or at least be more than one isolated incident). Where there is no hostile work environment or there is no adverse employment action taken against an employee, the employee is not eligible to bring a claim with the EEOC pursuant to the CRA’s provisions.

While all sexual harassment is harassment, not all harassment is sexual harassment. Fundamentally, sexual harassment is sex-based discrimination because it directly relates to both the victim’s and the harasser’s sex.

For example, suppose that Mary, a woman, recently became employed with XYZ, Inc. Mary is not married, and John, Mary’s supervisor, notices that Mary is not wearing a wedding ring. John has made several sexual advances towards Mary, telling her she “won’t regret it.” John has made these advances by leaving notes on her desk, waiting by her car when she leaves work in the evening, and calling her cellphone outside work hours despite Mary repeatedly asking him to stop. This is sexual harassment and prohibited sex-based discrimination under the CRA. It is sexual harassment because John’s actions appear to be sexually motivated, and John’s actions constitute sex-based discrimination because the sexual advances were made based on John’s status as a man, and John’s apparent attraction to Mary, who is a woman.

It should be noted that there is no requirement that either the victim or the aggressor be a certain sex. Indeed, the victim and the aggressor can be the same sex or the opposite sex. Although we generally perceive men as harassers and women as victims when it comes to sexual harassment, men can be victims and women can be harassers. The CRA applies evenhandedly in this regard, which combats perpetuated biases that men are usually the aggressor in a sexual assault scenario. In addition, there is no requirement that, to constitute sexual harassment, there must be a power imbalance. A harasser can be a CEO, supervisor, manager, co-worker, subordinate, customer, or client.

Sexual Orientation

Substantial strides have been made concerning antidiscrimination laws that protect gay, lesbian, and transgender employees in recent years. Although employees who come within these categories have historically endured excessive discrimination over a period spanning several decades, only in the last two years has it been determined that protectionary regulations related to sex-based discrimination are applicable to sexual orientation. In 2020, in the landmark case Bostock v. Clayton County Georgia, the Supreme Court held that discrimination based on an employee’s sexual orientation or transgender status is prohibited under the CRA.

For example, suppose that Todd and Samuel recently married in their state. Because Todd knows that his sexual orientation could make him a target in the workplace when it comes to unwelcomed and unsolicited opinions about same-sex marriage, Todd generally avoided discussing his relationship and marriage to Samuel while at work. However, Todd has developed some close connections with his co-workers and was telling one trusted co-worker, Jessica, over lunch, about Todd and Samuel’s recent marriage ceremony.

Sexual Orientation Discrimination: An Example

Bart, Todd’s supervisor, was notoriously uptight and was stringently against same-sex marriage, as it strictly violated Bart’s religious principles. Bart overheard Todd’s conversation with Jessica and terminated Todd’s employment later that same day, generally citing concerns about Todd’s commitment to ethics and morality in the workplace without providing more detail. Todd was a well-liked employee who had never shown any concerning or inappropriate behavior that would call into question his ethicality or morality in the workplace.

Here, it seems apparent that Bart terminated Todd’s employment because Todd is married to a man. Even though Bart and Todd are the same sex, that is not at issue here. The issue here is that Todd and Samuel are the same sex. Bart has clearly engaged in sex-based discrimination because, had Todd married a woman, Bart would not have terminated Todd’s employment. In this sense, discrimination based on sexual orientation is a subcategory that clearly comes within the CRA’s broad sex-based antidiscrimination provisions.

However, despite these new protections, the law is still somewhat unsettled when it comes to the First Amendment and employees who work at or with religious institutions and entitles, such as schools and churches, where the religion that is practiced doctrinally prohibits same-sex marriage.

Gender Identity

Closely related to issues concerning sexual orientation are issues concerning gender identity. Gender identity issues arise when an employee associates with a gender other than the one they were assigned at birth. Essentially, the CRA prohibits discrimination based on an employee’s decision to associate or be recognized as having a gender that they were not born with. A transgender woman is an individual who was a man at birth but has since made the decision to be recognized as a woman, and vice versa. Gender identity obviously comes within the CRA’s protections against sex-based discrimination because, when a hostile work environment is created or an adverse employment decision is made due to an employee’s choice to associate with a gender that they were not assigned at birth, the discrimination would not have occurred had the employee not decided to associate themselves with the opposite sex.

Gender Identity: A Right to Privacy under the CRA

In the same way that the ADA protects employees by requiring that their medical records, medical data, and previous, pending, or upcoming medical procedures remain private and undisclosed to unauthorized personnel, the same is true concerning individuals who come within the CRA’s gender identity protections. Employers can ensure compliance with the CRA with respect to privacy—and promote a positive, cooperative work environment—by removing gender-based policies relating to dress code that require employees to dress according to the gender they were assigned at birth or according to the gender they are physically present as.

For example, suppose Tara works at ABC Hotel as a concierge. XYZ Hotel isn’t associated with a larger chain hotel brand and only operates one hotel in a semi-small and conservative rural town. XYZ only has around 27 employees in all. XYZ Hotel is strict about employee appearance and requires that men wear a tie and dress pants while on the clock, and women are required to wear either a modest dress or a model skirt and blouse. Tara is wanting to transition to “Tom” and is seeking gender reassignment services, although she has not undergone any gender-altering procedures yet.

Being required to wear a dress to work is something that Tara, soon to be Tom, dreads daily. To be more like the person Tara is hoping to be, Tara decides to ditch the modest dresses, skirts, and blouses and wear the tie and dress pants that men are required to wear. Tara’s supervisor is shocked and deeply concerned about how customers will perceive Tara, as Tara otherwise still physically presents as a woman. Tara’s supervisor terminates Tara’s employment due to worries that customers who live in and travel through the small, conservative town where XYZ Hotel is located will have a negative impact on the hotel’s business.

Here, this a clear example showing sex-based discrimination based on gender identity. This discriminatory act—and any “shock” caused by the discrepancy between Tara’s perceived and actual gender—could have been avoided by XYZ updating—and modernizing—their dress code policy to be gender-neutral. For example, the dresses, skirts, blouses, and ties, could have been swapped with unisex polos all bearing the same logo. In addition, an updated, inclusive dress code policy could leave open the option to wear any work-appropriate bottoms, whether it be a skirt or pants.

Discrimination can also be avoided by asking how an employee would like to be addressed and what pronouns they would like to be used. Not only is this encouraged, but this is required under the CRA. The guide relating to transgender individuals in the workplace published by the EEOC requires that employers, other employees, supervisors, and managers address employees by using the name and pronouns that the employee has decided on. Any continuous, intentional inability to do so not only violate the personal dignity, respect, and integrity that the CRA was meant to promote, but it is also plainly illegal under the CRA.

Gender Identity and Facility and Bathroom Access in the Workplace

The CRA imposes no requirement that, in order to receive protection under the CRA, an employee who associates with a gender other than the one assigned to them at birth must have undergone gender reassignment surgery or any other (gender-changing or gender-related medical procedure) to ensure that their actual gender matches their assumed gender. Accordingly, denying an employee’s access to a community bathroom whose gender does not correspond with the sign posted outside the bathroom door constitutes sex-based discrimination under the CRA. An employer cannot bypass this prohibition by providing bathroom access through an individual or separate single-stall bathroom, as this would essentially be considered employee segregation. For a single-stall bathroom to be valid under the CRA, the option to use it must be given to all employees without regard to only certain, protected employees.

Pregnancy Discrimination

The CRA was amended in 1978 to include the PDA, which prohibits discrimination based on pregnancy, a condition related to or induced by pregnancy, and childbirth. Because the PDA is covered in the CRA, discrimination is prohibited in every stage in employment, including the application and interviewing process, hiring, retention, promotion, demotion, termination, and all other employment conditions and privileges. There are other legislative Acts that also provide protection to expectant mothers and new mothers, such as the FMLA and the ADA.

As it concerns conditions acquired during pregnancy, such as gestational diabetes, preeclampsia, and pregnancy-induced hypertension—which are essentially seen as temporary disabilities—employers must treat pregnant women in the same manner that they would other employees who have temporary disabilities. Also, under the Fair Medical Leave Act (FMLA), employers must hold their previously pregnant employee’s positions open over a 12-week period upon giving birth, which is the same time period as employees who are temporarily disabled under the ADA. 

This can be done by providing pregnant women reasonable accommodations pursuant to the ADA, as we will discuss in another article, “Understanding Discrimination under the Americans with Disabilities Act.” Reasonable accommodations might include more breaks or longer breaks throughout the workday, permitting a variation in working hours to accommodate conditions like morning sickness, or providing extra equipment, such as a chair or stool where the position requires substantial time standing. It should be noted that the PDA extends beyond protecting women who are currently pregnant, and also includes women who are at “childbearing” age who could become pregnant at a later date.

Nursing Mothers

Section 7 in the FLSA protects new mothers by obligating employers to provide reasonable break times to assist nursing mothers. In particular, the FLSA’s provisions are applicable to mothers who have a child or children who are one year old in age or less. The FLSA mandates that employers provide a location—other than a community bathroom—that will shield view by other employees and the public.

Employers with less than 50 employees do not have to comply with Section 7 where compliance may create an “undue hardship.” An undue hardship is generally analyzed on a case-by-case basis and is determined upon showing that compliance with Section 7 would cause a substantial expense in relation to the business’ size, resources, structure, and nature. Although Section 7 may not be applicable to all nursing mothers, many states and localities have enacted their own regulations concerning nursing mothers. To ensure that nursing mothers would receive adequate protection, the FLSA does not preempt any state regulations which give nursing mothers more legal protection. Essentially, the FLSA sets the minimum legal standard as it relates to nursing mothers.

 Mothers and Female Caregivers

Although women have historically always worked outside the home—although not as much as they do today—women still endure discrimination in the workplace regarding their roles as mothers and caregivers and their perceived place as homemakers and child bearers. Common stereotypes about mothers and women caregivers include: the assumption that parenting or caregiving responsibilities will impede a woman’s ability to succeed in the workplace and in her career, that mothers and caregivers would rather work in part-time positions so that they are able to balance their childcare and work responsibilities, or generally believing that women with children or caregivers with caregiving responsibilities would rather be at home than at work.

Prohibited discriminatory acts and behaviors under the CRA concerning mothers and caregivers include:

• Questioning women about their childcare responsibilities, particularly when male employees are not questioned about their childcare responsibilities.
• Providing workplace advantages to employees who do not have children—whether they be women or men, such as better hours—more leave time, etc.
• Steering or pushing mothers or caregivers into lower paying, less prestigious positions with reduced responsibility.

 

A Note on Male Caregivers

Discriminatory assumptions against mothers and women caregivers equally have a negative impact on male employees who have childcare and caregiving responsibilities. While women are generally perceived as homemakers, men are generally perceived as breadwinners. It is not uncommon that single, male parents—or men who must share in childcare or other caregiving responsibilities—may be overlooked when it comes to promotions, raises, and other advantageous employment opportunities. Accordingly, the CRA protects male parents and/or caregivers and prohibits discrimination against male employees in the same way it protects mothers and women with caregiving responsibilities.

Benevolent Stereotyping

Many times, employers do not recognize that they are acting discriminatorily and may have even convinced themselves, through their implicit bias, that they are making employment decisions that are in their employee’s best interest. This is generally known as “benevolent stereotyping” under the CRA and is prohibited. Benevolent stereotyping is increasingly prevalent regarding sex-based issues, such as pregnancy, motherhood, and caregiving.

Benevolent Stereotyping: An Example

For example, suppose Jane is an employee at XYZ Company. Jane has been employed with XYZ Company over six years and has an impeccable record with respect to the position she currently holds. Jane generally works around 55-65 hours each week. Jane had a baby nearly three years ago. At that time, Jane took leave to recover and tend to that baby during her allotted 12 weeks under the FMLA. She immediately returned to work and has rarely missed a workday since.

Jane will be having another baby in a month and plans to return to work and continue her regular work schedule, as she did last time. However, Jane’s supervisor is concerned about Jane’s ability to manage work along with two young children and does not want Jane to be overworked and overwhelmed. Jane is a loved and appreciated employee at XYZ, and there is no plan to terminate her employment. Instead, XYZ would go to extreme lengths to keep Jane onboard at XYZ Company. Believing that it is in Jane’s best interest—and if Jane’s 55–65-hour work week will no longer be desired or attainable—Jane’s supervisor unilaterally, and without consulting Jane, reduces Jane’s work hours to 35 hours per week and delegates some duties that Jane usually handles to another employee.

Here, although there was genuinely no discriminatory intent behind the employment decision made by Jane’s supervisor, and the decision was arguably mad because Jane is a deeply respected employee, reducing Jane’s hours and work responsibilities because it was assumed that Jane would desire such an arrangement constitutes sex-based discrimination under the CRA. Even though Jane’s supervisor had the best intentions, the supervisor’s “benevolence” is irrelevant under the CRA and will not muster legal protection.

To avoid discrimination against expectant mothers, mothers, or caregivers, employers should let the employee initiate the conversation concerning managing childcare responsibilities and work obligations when there is no evidence that children will—or already do—impact the employee’s ability to work competently in their current capacity. When an employee expresses these concerns or when an employee is shown to be struggling with balancing children and work, employers are encouraged to permit reasonable accommodations that will help the employee, and ultimately the employer, succeed.

Indeed, employers are encouraged to make the workplace more accessible to mothers and caregivers by promoting re-entry into the workplace, making over-time hours reasonable so that parents may be home with the children, providing part-time opportunities, implementing reduced-time options, and putting in place employee support programs and resources to assist employees during times where they are experiencing big personal and/or work changes. By making these employment policies widely applicable to all employees, employers are less likely to be hit with discrimination claims and mothers and caregivers who are employed are less likely to burdened with the inherent challenge in balancing their role as parents and caregivers, and as employees.

The Equal Pay Act

The EPA, which was passed in 1963, requires that men and women who share a common workplace—and work in substantially the same position with the similar duties and responsibilities—be paid equally. However, “substantially the same” is not read to mean identical. The positions only need to have substantial overlap. In addition, titles are generally irrelevant and are not considered to be a pay measuring tool. Also, it should be noted that the EPA extends to wages, salaries, bonuses, stock options, raises, and all other advantages relating to pay.

For example, suppose Tucker and Emily both work in Human Resources (“HR”) as HR assistants at ABC, Inc. They work the same hours and serve in substantially the same role and capacity. To evenly distribute the workload between the two, Tucker and Emily’s supervisor designated Tucker as the employee that would handle recruiting by writing and posting employment ads, reviewing candidate’s credentials, and calling candidates to schedule interviews. Emily was designated as the employee to handle the actual interview, determine which candidate(s) to hire, and help employees with their onboarding paperwork.

Here, Tucker and Emily are likely entitled to equal compensation under the EPA. They work at the same company, in the same position, and their work-related duties are substantially similar in practice. It does not matter that they do not handle the same duties; the duties were divided to ensure workplace productivity. So long as Tucker or Emily’s duties are not excessively more burdensome than the others, equal pay should exist between Tucker and Emily.

Because the CRA broadly covers generally all sex-based discrimination issues, claims concerning gaps in payment between women and men in the workplace can be brought under the CRA in addition to the EPA. However, the EPA can be contrasted with the CRA in a substantial way: the employee is not required to bring a charge against their employer with the EEOC, as required under the CRA. The employee can head straight to the courthouse and sue their claim under the EPA’s provisions. Despite this variation, however, the employee is still bound by the 180-day deadline that is imposed under both the CRA and the EPA.

Genetic-Based Discrimination

Many employees may not realize that Title VII, in particular, GINA, which is an amendment to the CRA that was passed in 2008, protects them against discrimination based on certain genetic conditions or disease they might have or could potentially develop at a later date. Because the CRA is the applicable legislation, all the usual CRA provisions apply. That means disparate treatment discrimination, disparate impact discrimination, and harassment are all prohibited. Harassment must be ongoing and create or result in: (1) a hostile work environment; or (2) an adverse employment decision against the complaining employee.

The EEOC is the agency charged with ensuring compliance with the CRA, and an employee has 180 days to bring a charge against their employer with the EEOC (45 when employed by the Federal Government). An employer, including state and local governments, the Federal Government, private employers, employment agencies, and labor organizations must have 15 or more employees to be covered by the CRA’s provisions.

The prohibition against discrimination based on genetics extends to genetic testing or genetic testing results given provided to the employee or those related to the employee. The CRA’s protections extend to an employee’s relatives under these circumstances because many genetic conditions may be hereditary. Family medical history is also included under genetic discrimination because generally, a relative’s genetic data is likely to be used to determine whether an employee may be likely to incur a disease or disorder at a later date.

The CRA also protects genetic services (both the request and receipt), and any participation in clinical trials or clinical research studies. Somewhat related to pregnancy discrimination, an unborn child’s genetics carried by a pregnant employee or employee’s relative is also protected. To that end, genetic discrimination may be used by employers in tandem with other discrimination types, such as disability-based discrimination and race-based discrimination where certain conditions are only applicable to one race, such as Sickle Cell Anemia. 

Genetic Discrimination: An Example

For example, suppose that Chase is interviewing at ABC Grocery Store to serve as a night stocker. Chase was born colorblind, which is recognized as a hereditary and congenital disorder and is very seldom exhibited in women. Chase has a somewhat mild case, as he can generally see most colors, but he sometimes experiences issues in distinguishing hues that are green and red. The manager at ABC Grocery Store, upon hearing about Chase’s condition, expresses concerns about Chase’s ability to work as a stocker because some products could have both green and red packaging and Chase may not be able to distinguish the colors, leading him to place the wrong products together in a mismatched, uncoordinated manner in places where they don’t belong. Although there is generally more than one stocker working at a time that could assist with color coordination, there is a substantial chance Chase could be working many nights alone. As a condition to hiring Chase, the manager requires that Chase undergo specialized testing to determine how severe Chase’s colorblindness really is, and to provide the manager with the results so a determination with respect to Chase’s employment can be made.

Under this scenario, ABC Grocery Store’s manager is discriminating against Chase based on his genetic makeup by conditioning employment on specialized testing concerning a genetic, inherited condition that may have no real bearing on his ability to work competently as a night stocker. Any genetic testing or other specialized testing that Chase underwent (at his own behest) would be protected under the CRA and Chase would not be obligated to provide the manager with his test results.

Also note that this scenario could arguably be viewed to include both sex-based and disability-based discrimination. Statistically, colorblindness is a condition usually only exhibited in men and denying employment to Chase because he is colorblind may imply that the employment decision was at least partially based on sex. In addition, provided Chase can show that his colorblindness impedes his ability to live normally, or is a “substantially limiting”—and where no reasonable accommodations is provided—denying Chase employment could constitute discrimination under the ADA.

Age-Based Discrimination

The Age Discrimination in Employment Act (“ADEA”), which was passed in 1967, attempts to ensure equal protection under conditions that were not expressly covered in Title VII. The ADEA

makes it illegal to discriminate against an employee who is 40 or older. However, many state regulations protect workers who may be “advanced” in age but have not yet reached 40. The ADEA broadly applies to all local and state governments, the Federal Government, employment agencies, and labor unions, as the CRA does. However, with respect to private employers, the ADEA is only applicable to employers with 20 employees or more.

Like under the CRA, the ADEA requires that a claim under the ADEA be brought against an employer with the EEOC in 180 days, or 45 where the employee is employed by the Federal Government. The EEOC is the government agency ensuring compliance with the ADEA’s provisions and is charged with pursuing discrimination claims against employers when necessary.

Interestingly, despite the striking similarities between the ADEA and the CRA, the ADEA contrasts with the CRA in one substantial way: unlike the protected classes covered under the CRA, the ADEA does not make it illegal to regard an employee as superior or provide them advantages in the workplace when they are 40 or older. As we have discussed, any consideration—whether it be positive or negative—based on an employee’s status within a protected class is strictly prohibited.

Age-Discrimination under the ADEA and CRA: An Example

For example, suppose Don is a mechanic at Car Repair Company. Don is 57 years old and has worked as a mechanic at Car Repair Company over the last 12 years. Mario, a 37-year-old mechanic, was hired around the same time as Don 12 years ago. Both Don and Mario are well-liked and are viewed as hard workers and assets to the Car Repair Company. However, it is apparent that Don isn’t quite as spritely as he used to be and tends to tire more easily than he once did. Don does not have any debilitating condition impacting his ability to get around.

Car Repair Company’s owner notices that Don is slowing down and has permitted Don—and even encouraged Don—to take longer breaks and to work reduced hours. While Mario, and all other Car Repair Company employees who are all currently under 40, are required to get to work by 8:30 a.m. sharp, Don usually comes in closer to 9:30 a.m. Don’s late arrival and reduced hours generally do not present a problem. However, at times when Car Repair Company is particularly busy and Don is not at work when all employees are, some employees may split Don’s typical duties and be required to minimal additional work.

There is likely no discrimination under the ADEA’s provisions, as Don is well over 40 years old and the ADEA does not prohibit special treatment given to people who are 40 and older. However, this is not likely to be true under the CRA’s provisions, because these advantageous measures, which included extended break times and late arrival are: (1) not applied even handedly, and (2) not made to accommodate any other protected condition or disability Don has; Don is simply aging and not as agile as he used to be, as all employees do with time and age.  

Pre-Employment Inquiries into Age

It is quite commonplace to ask applicants and employees about their age. Usually, a birthdate is necessary to ensure identity, citizenship, or is used to accomplish some other legal purpose. However, the EEOC recognizes that employment applications that outright request a birthdate in the pre-employment stage may deter older employees from applying. The EEOC also recognizes that age and birthdate are not all that necessary at the initial interview stage and can generally be obtained later to meet all necessary legal requirements once an employee is hired. Accordingly, while neither the ADEA or the CRA prohibits pre-employment inquires, such inquires could be an indicator that there was a discriminatory motive in not hiring an applicant who is 40 or over.

In Conclusion…

This article only touches on the more common issues associated with sex-based, genetic-based, and age-based discrimination. Many times, more than one legislative Act will be applicable to a protected class in order to combat various discriminatory employment practices, such as the EPA, the PDA, and the FMLA as it relates to sex-based discrimination, GINA, ADA, and ADEA as it relates to genetic-based discrimination, and the ADEA and the CRA, as it relates to age-based discrimination. However, despite these various legislative Acts that appear to give extensive protections to vulnerable and minority populations, they are still relatively when viewed in comparison to our country’s establishment 245 years ago (that means the earliest legislative Acts that prohibiting discrimination didn’t exist until America had existed 188 years!).

However, in perspective, the law is suddenly becoming more progressive than ever with respect to these areas, as partially evidenced by the legal protections extended based on gender identity and sexual orientation in recent years. Although the law must progress as we progress as a country—and we generally rely on the law to ensure civility amongst the country’s citizens—protectionary measures can be delayed when considering the time it takes to get legislation passed, which is largely due to congressional disagreements regarding both general coverage and particular wording—meaning it really is true that it generally takes a “Congressional act” to put in place the most basic equal protection rights that society, on the whole, may already generally recognize and value (or at least are willing to comply with).

This is evidence that, while we usually depend on the law to guide us, in reality, “we the people” guide the law. Certainly, we need the law to protect the people who need it most against those rogue employers and corporations who prioritize money over people and whose own personal experiences have made them biased, but generally, we, as a country, value equality, kindness, cooperation, civility, and doing the right thing; most people don’t need antidiscrimination laws to know how to be a good person. Creating an inclusive work environment starts with us.