Did you know that workplace discrimination is a common problem in North Carolina? State and Federal law prohibit employment discrimination, but that doesn’t mean it doesn’t happen. This blog post will discuss the different types of discrimination unlawful in North Carolina. We will also talk about how to prevent a discrimination lawsuit at your business!
What is Employment Discrimination?
Employment discrimination is a serious issue. The Civil Rights Act of 1964 is the federal law that protects individuals from employment discrimination. North Carolina state law also offers protection against discrimination based on additional protected classes such as sexual orientation and gender identity.
According to the Equal Employment Opportunity Commission, workplace discrimination involves treating an employee or potential employee unfavorably because of their:
- Sex
- Race
- Color
- Religion
- National origin
- Age (40 or older)
- Disability
- Genetic information
In North Carolina, it is unlawful for an employer to discriminate on any of these grounds.
What is Workplace Harassment?
The law does not forbid teasing or the occasional offhand comment. However, your employee may have a case for illegal workplace harassment if comments become so severe or frequent that they face:
- An oppressive work atmosphere
- Termination
- Demotion
Harassment can come from different roles in a job environment. The harasser could be someone’s:
- Supervisor
- A supervisor in another area
- A co-worker
- Someone who is not an employer’s employee, such as a client or customer.
If you notice that someone in your business faces discriminatory behavior from another employee, it may be time to discuss what is happening. Or, it may make sense to bring in an expert to help employees understand acceptable behavior standards.
How Does the Employment Act Affect Workplace Discrimination?
Under the laws enforced by U.S. Equal Employment Opportunity Commission
(EEOC), it is illegal to discriminate against an applicant or employee or to retaliate against a person because they complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
The law forbids discrimination in every aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
The EEOC protects workers using the following laws:
- Title VII of the Civil Rights Act of 1964 (Title VII)
- The Pregnancy Discrimination Act
- The Equal Pay Act of 1963
- Title I of the Americans with Disabilities Act of 1990 (ADA)
- Sections 501 and 505 of the Rehabilitation Act of 1973
- The Age Discrimination in Employment Act of 1967 (ADEA)
- Title II of The Genetic Information Nondiscrimination Act of 2008 (GINA)
The law forbids discrimination when it comes to any aspect of employment, including
- Hiring
- Firing
- Pay
- Job assignments
- Promotions
- Layoffs
- Training
- Fringe benefits
- Any other term or condition of employment
Racial Discrimination & Harassment
Race discrimination involves mistreating someone due to their race or characteristics associated with their race, such as hair texture, skin color, certain facial features, or shade of complexion.
Unfavorable treatment due to race or color also applies when someone is connected with a person of a distinct race, associated with an organization based on ethnicity, or linked to any group typically affiliated with people with the same skin tone. Even when the victim and perpetrator have similar racial or ethnic backgrounds, discrimination can still occur.
It is also unlawful to harass someone because of their race or color. Harassment could include:
- Racial slurs
- Offensive or derogatory remarks about a person’s race or color
- Display of racially-offensive symbols
Even if a particular employment policy or practice applies to everyone, it may still be illegal if it hurts individuals of one race or color and is not relevant or necessary for the business’s operations.
National Origin Discrimination
National origin discrimination is rooted in mistreating individuals due to their country of birth, ethnicity, accent, or an assumption of ethnic background.
Discrimination based on national origin can involve people treating others adversely because they are married to or associated with a particular nationality or have an affiliation with an ethnic organization.
It is also unlawful to harass someone because of their national origin. Harassment can include offensive or derogatory remarks about a person’s national origin, accent, or ethnicity.
As an employer, it is unlawful to implement policies or practices that may negatively affect people based on their national origin unless the policy serves a valid business purpose. Such measures must be job-related and necessary for operational purposes to be permissible.
For example, an employer must demonstrate that fluency in English is essential for successfully completing job duties before requiring an employee to speak only English on the job. This “English-only rule” may be enforced if necessary for a safe and efficient work environment, but it must also be absent any discriminatory motive or purpose.
Employers should never make an employment decision based on the foreign accent of their employees unless it severely impedes job performance.
Age Discrimination
Age discrimination involves treating someone less favorably because of their age. The Age Discrimination in Employment Act (ADEA) defends workers 40 and over against age discrimination
It is also unlawful to harass a person because of their age. Harassment can include offensive remarks about a person’s age.
An employment policy or practice that applies to everyone, regardless of age, can be illegal if it hurts applicants or employees age 40 or older or not based on a reasonable factor other than age.
Disability Discrimination
Unjustified discrimination against individuals with disabilities is illegal under the Americans with Disabilities Act (ADA) and Rehabilitation Act. If an individual experiences unfair treatment in an employment setting due to their disability, they are protected by these laws.
It is illegal to discriminate against someone due to a former disability. Similarly, it’s a discriminatory action when someone with no current impairment receives unfair treatment due to past or believed impairment.
The law is in place to ensure that employers provide reasonable accommodation for employees or applicants with a disability–unless it imposes an undue burden on the employer. Additionally, people with no disability also have safeguards from discrimination based on their relationship with somebody with a disability. For example, discriminating against an employee because their partner has a disability is illegal.
Intimidating, coercing, or threatening an applicant or employee because of their disability (past/present), is strictly prohibited by law. This even applies if the individual has no mental or physical impairment. Harassment can include offensive remarks about a person’s disability.
How Can An Employer Head Off Disability Discrimination?
In compliance with the law, an employer must offer reasonable accommodation to any employee or job applicant that is disabled unless doing so results in substantial difficulty or cost for the employer.
A reasonable accommodation is any alteration made within the workplace that helps an individual with a disability apply for, operate in, and relish the rewards of a job. Wheelchair accessibility and readers or interpreters for hearing or the visually impaired are only two examples under this exception. Reasonable accommodations make it possible to level out the playing field between people with disabilities and their coworkers without impairments.
An employer is not always required to provide accommodation if it would create a substantial burden on their behalf. Undue hardship indicates that accommodating the request could be financially or logistically too demanding or the monetary resources needed too high.
No employer may deny an accommodation with a cost associated simply because of the expense. If there is more than one accommodation option, it’s up to the employer which one they provide.
Religious Discrimination
No one should ever face mistreatment due to their religious beliefs. Religious discrimination is illegal, and not just in traditional religions like Buddhism, Christianity, Hinduism, Islam, or Judaism – anyone with honestly held spiritual or moral convictions is also protected.
Religious bias can also manifest in treating someone unequally due to their marriage or affiliation with a spiritual entity, congregation, or association.
It is also illegal to harass a person because of their religion. Harassment can include offensive remarks about a person’s religious beliefs or practices.
Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of potential customer preference.
Companies are legally obligated to provide reasonable accommodations for employees’ religious practices, barring any hindrances to the business’s operations. This could include modifications of workspaces that enable workers to adhere to their faith in a manner consistent with workplace requirements and standards. Employers should allow for flexible scheduling, voluntary shift substitutions or swaps, job reassignments as needed, and modifications to existing policies or practices.
Unless it would be an undue hardship on the employer’s operation of its business, an employer must reasonably accommodate an employee’s religious beliefs or practices. This applies to:
- Schedule changes
- Leave for religious observances
- Dress or grooming practices
From wearing a Jewish yarmulke or Muslim headscarf to sporting Rastafarian dreadlocks or Sikh uncut hair and beard, individuals’ attire and grooming practices based on their religious beliefs have protection under the law.
Employers are not obligated to comply with religious requests if it would result in undue hardships such as cost, safety concerns, or disruption of workplace efficiency.
Sex-Based Discrimination
Sex discrimination involves treating someone unfavorably because of that person’s sex. Or it could be treating someone less favorably because of their connection with people of a particular sex.
It is also unlawful to harass a person because of that person’s sex. Harassment can include:
- Sexual harassment
- Unwelcome sexual advances
- Requests for sexual favors
- Other verbal or physical harassment of a sexual nature
Harassment can include derogatory or demeaning remarks about someone’s sex, such as disparaging comments regarding females as an entire gender. Both the victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
An employment policy or practice that applies to everyone, regardless of sex, can be illegal if it harms the employment of people of a particular sex and is not job-related or necessary to the operation of the business.
Pregnancy Discrimination
Pregnancy discrimination involves treating a woman unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy regarding any aspect of employment.
When a woman has a medical situation associated with pregnancy or childbirth, the company and any other relevant entities must treat her just as they would another temporarily disabled employee.
For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.
Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA).
How Can Employers Help Pregnant Employees?
To assist an employee in her job duties due to a disability related to pregnancy, employers must supply reasonable accommodations such as leave or modifications. The Amendment Act of 2008 covers medical conditions under ADA regulations.
It is also unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay must allow an employee who is temporarily disabled due to pregnancy to do the same.
In 1993, the Family and Medical Leave Act (FMLA) allows new parents – including foster or adoptive ones – up to 12 weeks of unpaid leave. Although unpaid, an employee can use this time for child care.
Pregnant employees also possess additional protections and rights under the Family and Medical Leave Act (FMLA), enforced by the US Department of Labor. Likewise, lactating mothers have the right to express milk at work due to a provision within Fair Labor Standards Act administered by Wage & Hour Division.
Genetic Information Discrimination
Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits using genetic information in making employment decisions.
Genetic information includes your genetic tests and the genetic tests of your family members or medical history. Family medical history counts since you can see that someone has an increased risk of getting a disease, disorder, or condition in the future.
Genetic information also includes an individual’s:
- Genetic services
- Participation in clinical research that includes genetic services by the individual or a family member of the individual
- Genetic information of a fetus carried by a pregnant woman who is a family member of the individual
- Genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology
Employers can’t legally use any genetic information to make an employment decision, as it has no bearing on the individual’s current capacity for work.
Under GINA, it is also illegal to harass a person because of their genetic information. It is unlawful to fire, demote, harass, or otherwise “retaliate” against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.
Exceptions to Genetic Discrimination Cases
It is usually unlawful for an employer to get genetic information. There are six narrow exceptions to this prohibition:
- Inadvertent acquisitions of genetic data do not violate GINA, such as when a manager or supervisor overhears someone talking about a family member’s illness.
- An employer may obtain genetic information (such as family medical history) as part of health or genetic services, including wellness programs, offered voluntarily with certain specific requirements.
- Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or an employer policy), where an employee is asking for leave to care for a family member with a severe health condition.
- Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources to find genetic information. It would also be improper to access sources such as websites and online discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination.
- Employers may acquire genetic information through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace under carefully defined conditions, where the program is voluntary.
- Acquisition of employees’ genetic information by employers who engage in DNA testing for law enforcement purposes as a forensic lab or human remains identification. However, employers may only use genetic information to analyze DNA markers for quality control for detecting sample contamination.
It is also unlawful for a covered entity to disclose genetic information about applicants, employees or members.
Equal Pay Compensation Discrimination
The Equal Pay Act requires that men and women who work in the same place receive equal pay for their labor. Although not necessarily identical, the jobs must be of comparable value. The work counts, not the title.
This law covers all forms of remuneration, such as salary, overtime pay, bonuses, stock options and bonus plans, profit sharing and bonus plans, life insurance policies, vacation and holiday leave allowances, cleaning or fuel subsidies, hotel accommodations allowance reimbursements for travel expenses. If there’s an imbalanced wage between men and women, employers are not allowed to reduce the salaries of either gender to even them out.
An individual who suffers violation of the Environmental Protection Agency standards may take their case straight to court without the need for prior filing of an Equal Employment Opportunity Commission charge.
Title VII, the ADEA, and the ADA prohibit compensation discrimination based on race, color, religion, sex, national origin, age, or disability. Unlike the EPA, there is no requirement under Title VII, the ADEA, or the ADA that the jobs must be substantially equal.
To violate Title VII by discrimination based on sex in pay and benefits is also illegal. Therefore, someone who has an Equal Pay Act claim may also have a claim for a Title VII lawsuit.
Employment Discrimination Cases
When adverse employment actions face punitive damages, the consequences can help stamp out intentional discrimination. Discrimination lawsuits can help keep a protected class from suffering disparate treatment. No class of people deserves to different treatment when it comes to the basics of holding a job.
As a business seeking to operate in North Carolina, it makes sense to understand the discrimination and harassment laws you may face when you have employees. It is an employee’s right to seek retaliation for reasonable cause when their complaint has merit.
We Can Help
At Hopler, Wilms, ad Hanna, our legal team of experienced business lawyers can help you see whether your workplace meets standards to prevent discrimination and harassment. Talk with our knowledgeable business attorneys if you’re concerned about the legal rights of your employees or your business and how state law may play out in your situation.
We can work with you and anyone involved to head off adverse action that may affect your business. Our firm is dedicated to helping you understand your rights as an employer. Reach out to us today for a consultation or to get started with an assessment.