Discrimination in the Workplace

Discrimination in the workplace can take many forms. A prospective employee may be denied employment for which he or she is qualified. A current employee may be subjected to harassment because of his or her gender, age, religion, race, national origin, or disability. In other instances, an employee may be demoted or even fired. An employer who fires an employee because of the employee’s gender, age, religion, race, national origin, or disability has engaged in a “wrongful discharge.” Wrongful discharge is a legal term that refers to terminations of employment (either firings or involuntary resignations) that violate a federal statute or a state law. There are several federal statutes that cover wrongful discharge and harassment, and in 2010, according to the Equal Employment Opportunity Commission, there were 99,922 complaints of terminations or other activities that violated a federal statute. In the previous decade, there were 847,896 complaints of terminations or other activities that wrongfully violated a federal statute.

Before looking at the specific laws, it is important to understand that there are two competing concepts underlying employment law. The first is the concept of at-will employment. The second is the law of wrongful discharge. At-will employment is a very strong concept in Pennsylvania law. Essentially, if an employee is not working under a contract that specifies how long the employment period will last, that employee is an at-will employee. In general, an at-will employee can be terminated at any time. An at-will employee may leave the employer at any time, as well. However, the employer is restricted from terminating employees for several reasons. Any employee discharged for a prohibited reason has suffered a wrongful discharge.

The most important federal statutes involved in wrongful discharge cases are the Americans with Disabilities Act of 1990 (ADA), the Age Discrimination Act (ADEA), Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA). In Pennsylvania, the Whistleblower’s Law provides a state-based wrongful discharge law.


The most common type of wrongful discharge is discrimination. Discrimination based on a person’s age, race, gender, national origin, religion, or disability is illegal. Each category that is protected from discrimination is called a protected class. Discrimination can take place in a variety of adverse employment actions, including denial of employment, being passed over for promotions, or termination from employment. There are several different forms in which discriminatory wrongful discharge may be shown, including disparate treatment, disparate impact, harassment, and retaliation.

Disparate treatment cases are the most common form of discrimination and are shown when an individual member of a protected class is discriminated against on the basis of his or her membership in the protected class. Unless the employee has concrete proof that the adverse employment action was due to membership in a protected class, the employee must prove the case with circumstantial evidence. To do this, the Supreme Court created the McDonnell-Douglas burden shifting scheme for an employee to prove discrimination without direct evidence.

The McDonnell-Douglas burden shifting scheme is a back-and-forth process between the employee and the employer. The first step in the scheme is for the employee to prove that she has a prima facie case. To do this, the employee (or applicant) must show that she is a member of a protected class, that she was qualified for the job and was either employed in the position or applied for it, that she was meeting adequate job performance standards, that an adverse employment action was taken (meaning that she was rejected or terminated), and that the position was filled by someone not in the same protected class or remained open. Showing all of these elements shows a prima facie case, but the claim is far from resolution.

The second step in the scheme is a burden on the employer. The employer must show that there was a legitimate, non-discriminatory reason for the adverse employment action. These reasons may include reduction in staff redundancy, disciplinary issues, or, in the case of hiring, hiring an equally qualified applicant. If the employer can do this, the burden shifts back to the employee for the third step.

The final step in the burden-shifting analysis requires the employee to show that the employer’s stated non-discriminatory reason is false and is merely pretext. A pretext reason is one that is either factually incorrect or is not the true reason for the adverse employment action. There are a variety of methods that the employee may rely on to show there was discrimination. For instance, the employee can show that the employer’s workforce is predominated by a particular ethnicity or gender that is not representative of the community demographics.

Disparate impact is another theory of discrimination and holds employers liable for hiring requirements that significantly impact the employment prospects of many members of a protected class. A disparate impact case may be successful even if the discrimination was unintentional. For instance, requiring prospective employees to be able to lift a certain amount of weight may have an adverse disparate impact on women. However, if the hiring requirement has a manifest relationship to the employment, there probably is no discrimination. Therefore, certain physically demanding jobs may utilize a reasonable strength test in the hiring process. Harassment is another form of discrimination. Harassment takes many forms, including the use of slurs, offensive or derogatory comments, or other conduct. Sexual harassment is a specific type of harassment that includes unwelcome advances, requests for sexual favors, and other types conduct, like a quid pro quo proposal. In a quid pro quo situation, a supervisor will promise to employ an individual or threaten the employment status of an individual in return for a sexual favor.

If harassment is occurring in the workplace, employer liability depends on whether or not the harasser was a fellow employee or was a supervisor. If a co-worker is the harasser, the employee must show that the employer knew about a hostile work environment and failed to take action. To prove that a hostile work environment existed, the employee must show that the conduct was severe and pervasive. If the harasser is a supervisor and the employee can show that an adverse employment action was taken, the employer is automatically liable. If there was no adverse employment action, the employer can avoid liability by showing that it took reasonable steps to prevent and correct harassment and that the employee failed to take advantage of reasonable preventative and corrective opportunities provided by the employer. The Equal Employment Opportunity Commission (EEOC) received over 11,000 sexual harassment complaints in 2010. Of those complaints, 16.4% were filed by men.

In addition to the various forms of discrimination, it is illegal for an employer to retaliate against employees who oppose a form of discrimination or who have complained about discrimination. Retaliation is also prohibited in many other cases. If a worker reports the employer for illegal practices or refuses to perform an illegal act, the employer may not take adverse employment action against that worker in retaliation for the worker’s actions. An example of refusing to perform an illegal act would be when an employee refuses to take part in fraudulent conduct, despite instructions from the employer to promote the fraud. Employees are protected from adverse employment action if they are legally permitted to take time off from work. For instance, members of the military may not suffer adverse employment actions if they are called to active duty status. Finally, if an employee is working under a contract that specifies the term of employment or if the employer violates a written disciplinary policy by terminating employment before exhausting internal procedures, the employee is protected.


The ADA forbids employers from discriminating against those with disabilities. Only employers with 15 or more employees are subject to the ADA. According to the U.S. Equal Employment Opportunity Commission, there were 25,165 claims of disability-based discrimination in 2010.

Discrimination based on disability is illegal. Generally, an employer must take reasonable steps to accommodate employees and qualified applicants who have a disability. Disability is defined as a physical or mental impairment that substantially limits the life activities of a person. If a disabled person meets the hiring requirements of a job, can perform the essential functions of that job and asks for reasonable accommodations, the employer must make an effort to provide those accommodations. Some reasonable accommodations include making the physical location of the job accessible, providing an interpreter or equipment, or making the position part-time. An employer does not have to provide accommodations if an undue hardship would be imposed on the employer. The employer must have specific proof of the company’s hardship to avoid liability. For instance, factors such as the nature and cost of the accommodation or substantially modified working hours may be considered undue hardships.


The ADEA protects employees over the age of 40. The ADEA applies to companies employing 20 or more employees. Employers may not terminate older employees and replace them with a younger person simply because the other person is younger. Even if the younger person is over the age of 40, the ADEA still protects the older employee.

There were 23,624 complaints of age discrimination in 2010 according to the U.S. Equal Employment Opportunity Commission. Older employees normally make more than younger employees, and employers will sometimes discharge the older employee and replace her with a younger employee to save money. This is textbook age discrimination and it is illegal.

Employers are entitled to raise the defenses of reasonable factors other than age and bona-fide occupational qualifications (BFOQ). To raise the BFOQ defense, an employer must show that there is either (1) a substantial basis for believing that all or nearly all employees above a certain age lack the qualifications for the position in question; or (2) that reliance on an age classification is necessary because it is highly impractical for the employer to insure by individual testing that its employees will have the necessary qualifications for the job. For instance, mandatory retirement in some professions, like firefighting and law enforcement, is legal. Offers of voluntary early retirement are non-discriminatory age-based employment actions as well.


Title VII protects employees from discrimination based on race, color, sex, national origin, or religion. Employers with 15 or more employees are covered by Title VII. According to the U.S. Equal Employment Opportunity Commission, there were 73,058 complaints of Title VII violations in 2010. Of those complaints, 35,890 charged that race was the primary factor for the discharge.

Unlike in cases of age discrimination, the bona-fide occupational qualification is not a defense to all charges under Title VII. A BFOQ is permissible only in cases alleging discrimination based on gender, religion, or national origin. For instance, gender may be a BFOQ in the context of employment as a prison guard. Due to the nature of the job, gender segregation can be a BFOQ. However, concern for female fertility is not a BFOQ. Moreover, if an adverse employment action is based on race or color, that action is illegal. Customer preference, for instance, is not a valid defense. Therefore, a store that employs only African-American employees and refuses to hire employees of any other race or color has no defense.

Title VII protects against both wrongful discharge and harassment. Therefore, it is not necessary for an individual to have been terminated to have a Title VII claim. Sexual harassment is the most common form of harassment, but harassment can take other forms. For instance, racial harassment is also illegal. To wit, there were 11,717 complaints of sexual harassment in 2010. However, the Equal Employment Opportunity Commission reported 30,989 overall harassment complaints in 2010. Therefore, behavior directed at a member of a protected class that is intended to be threatening or disturbing is an actionable offense under Title VII.

It is important to note that Title VII protects all members of the protected classes. Therefore, men may bring suit for discrimination or harassment. For instance, 16.4% of all sexual harassment cases in 2010 were filed by men.


The FMLA was passed in 1993 and provides paid or unpaid leave due to a health condition that makes the employee unable to work, to care for a sick family member, or to care for a new child. During the unpaid leave, the employee may not be terminated for taking the leave of absence. The FMLA applies to employers who have 50 or more employees, and does not protect many part-time employees. The maximum amount of leave time permitted under the FMLA is 12 weeks, and the leave may be intermittent. In some cases, the employer may require the employee to use up his or her accrued paid leave before the unpaid leave begins. If this happens, the 12 weeks maximum still applies.

In 2010, the Equal Employment Opportunity Commission received 6,119 complaints of pregnancy discrimination, but the EEOC does not record complaints under the FMLA. However, the number of complaints filed per year has increased by 65% since 1997.

If an employee is taking leave to care for his or her own health condition, the FMLA requires that the employee have “a serious health condition.” The FMLA provides that the condition is serious when “an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” Congress even provided some examples of covered conditions. Heart conditions, most cancers, back conditions requiring extensive therapy or surgical procedures, appendicitis, pneumonia, emphysema, severe arthritis, severe nervous disorders, injuries caused by serious accidents on or off the job, and ongoing pregnancy are some of the conditions used by Congress as examples of “serious health conditions.” However, the list is not exhaustive, so other conditions may qualify.


The FLSA was originally passed in 1938 to guarantee a minimum hourly wage to employees and to require employers to pay “time-and-a-half” for overtime. It has been amended many times, often to increase the minimum wage. However, the most significant amendment to the FLSA was the Equal Pay Act of 1963. The Equal Pay Act prohibits employers from paying their employees different wages based on their gender.

The Lilly Ledbetter Fair Pay Act of 2009 was signed into law to address the Supreme Court’s holding in the 2007 case of Ledbetter v. Goodyear Tire & Rubber Co. In the Ledbetter case, the Supreme Court held that a sex-based wage discrimination claim must be raised within 180 days of the first discriminatory paycheck (in other words, the statute of limitation would begin to run on the date of the first paycheck). The Lily Ledbetter Fair Pay Act was passed to require that a sex-based wage discrimination claim need only be raised within 180 days of the most recent discriminatory paycheck. It is important to note that the Ledbetter case did not address the Equal Pay Act, and the Lily Ledbetter Fair Pay Act does not amend the Equal Pay Act.

Equal Pay Act claims are now being filed more frequently. In 2010, there were 1,044 claims of Equal Pay Act violations. However, in 2007, the year of the Ledbetter decision, there were only 818 claims of Equal Pay Act violations. Before the statute of limitations arose, claims were more frequent. For instance, in 2002, there were 1,251 claims of Equal Pay Act violations.


In the employment law context, whistleblowers are individual employees who reveal that their company is engaged in waste or wrongdoing. The whistleblower may tell a superior officer of the company or may file a complaint with the appropriate agency.

Whistleblowing is a complex issue. Some see whistleblowers as “tattle-tails,” while others view them as heroes. The legislature of every state in the U.S. has offered legal protection to whistleblowers in certain contexts. In Pennsylvania, private employees are granted whistleblower protection. Employees may not be terminated or otherwise retaliated against for reports of waste or wrongdoing. Waste refers to an employer’s conduct that results in substantial abuse, misuse, or loss of funds belonging to, or derived from, the state. Wrongdoing refers to significant violations of a federal or state statute or regulation, or of a local ordinance. If an employee reports either waste or wrongdoing, he or she must make that report in good faith. Good faith reporting means that the employee makes the report under reasonable cause to believe that the waste or wrongdoing is true and that the report is made without malice and without consideration of a personal benefit.

In essence, an employee must know that his or her company is either misusing state funds or is breaking the law in order to make the report. Once the report is made, the employee is protected from termination and discrimination by the employer. If an employer retaliates against a whistleblowing employee, the employee has 180 days to bring a suit. The employer may be subject to a small civil fine in addition to the damages owed to the employee.


If you have been the victim of a wrongful discharge, you most likely will have to follow certain reporting procedures. For instance, victims of discrimination on the basis of membership in a protected class are normally required to file a complaint with the Equal Employment Opportunity Commission (EEOC) or the appropriate state agency. Because of the complexity and variety of wrongful discharge cases, it is incredibly important that you have a skilled and experienced team of attorneys on your side. If you believe that you have been wrongfully discharged, call the legal team at Behrend and Ernsberger, P.C. today at (412) 391-2515.