USA Law and Practice Contributed by: Chuck Baldwin, Ken Siepman, Bonnie Martin and Justin Allen, Ogletree Deakins
who seek benefits under federal law (eg, under the ADA, the PWFA, the PUMP Act or the FMLA). Most state and some local laws contain analogous prohibitions. Certain jurisdictions have expanded the list of protected categories to include such char - acteristics as marital and/or familial status, political affiliation, language abilities, use of tobacco products, firearm ownership and public assistance status, as well as height, weight, hairstyles and personal appear - ance. Prohibited Practices Prohibited discriminatory practices generally include bias in all terms, conditions and privileges of employ - ment, including hiring, promotion, evaluation, train - ing, discipline, compensation, classification, transfer, assignment, lay-off and discharge. Where disadvan - tageous to the employee, these activities are often referred to as “adverse actions”. To demonstrate dis - crimination, an employee must establish a connection between the protected characteristic and the adverse action or condition. Prohibited discriminatory practices also include failing to reasonably accommodate an employee’s request for a disability or religious accommodation. The standards for evaluating each type of accommoda - tion under federal law differ, though both statutes use the term “undue hardship”. The standard for religious accommodations is an evolving area under US law. Harassment Workplace harassment is also unlawful. Although many harassment cases involve allegations of sexual harassment, harassment based on other protected characteristics may also be actionable. Employer liability in harassment cases depends on: • who engaged in the harassment; • whether the harassment resulted in a tangible employment action; and • the employer’s efforts to prevent and correct the harassment. Retaliation It is unlawful to retaliate against employees who raise concerns about unlawful discrimination or harass -
ment. An employee need not prove that discrimina - tion occurred in order to prove that an employer’s response to the employee’s complaints constituted unlawful retaliation. Rather, an employee simply needs to prove a causal connection between the complaints
and the adverse action. Proving Discrimination
Generally, employees must first prove that: • they are a member of the protected class; • they were qualified for the job and/or satisfactorily performed the job; • they were subjected to an adverse employment action; and • the adverse employment action occurred under circumstances giving rise to an inference of dis - crimination. The employer must then establish that the adverse employment action was taken for a legitimate, non- discriminatory reason. If the employer does so, the employee must prove that the reason offered by the employer was a cover-up (or pretext) for discrimina - tion. An employee is also generally required to show that the employer intended to discriminate, except when claiming a particular practice or policy has a disparate impact based on a protected characteristic. There are also affirmative defences to discrimination claims that may apply in limited circumstances and depending on the nature of the claim. Employers are generally allowed, for example, to discriminate on the basis of sex, age, religion or national origin if such a characteristic constitutes a bona fide occupational qualification (BFOQ). A BFOQ exists when a specific characteristic is necessary for the performance of the job. Gender may be a relevant factor, for example, in job performance for a model of women’s clothing. The BFOQ defence is very narrowly restricted and should not be relied on in most situations. Remedies available for discrimination claims depend on the law under which those claims are asserted, but generally include some combination of back pay, lost benefits, front pay, liquidated damages, compensa - tory damages (including emotional distress damages),
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