Labor: In discrimination, protections increase but advice stays the same

More and more Americans are part of some class protected by a discrimination law

Discrimination claims are a growth industry. In this sense: We are in the midst of three trends of varying significance that protects additional employees from job decisions made on the basis of their membership in a particular class of works. Increasingly employees are protected on the basis of their sexual orientation or identity, their off-duty conduct, and their having invoked their rights under an employment statute (i.e. retaliation claims). Each of these trends is discussed briefly below.

And of course we are in the midst of a much longer term trend. The landmark discrimination statute is Title VII of the Civil Rights Act of 1964, the federal law prohibiting employment discrimination on the basis of, among other things, gender, race, religion, and national origin. Congress passed the Age Discrimination in Employment Act in 1967, the Americans with Disabilities Act in 1990, and enhanced protections under Title VII in the Civil Rights Act of 1991. States have passed companion statutes that are generally similar in substance, but may provide additional remedies. In Ohio, for example, there is individual liability for supervisors under the state civil rights law even though there is not under Title VII in the 6th Circuit.

Finally, it seems that we are in the midst of a sea change in how sexual orientation and gender identity is treated by the legal system. Certainly the broader off-duty conduct statutes in some states would protect workers from job actions based on their sexual orientation. Three states—Maine, Maryland, and Washington—voted to allow gay marriage. Another (Minnesota) defeated a ballot measure to prohibit it. In 2011, four states passed laws prohibiting employment discrimination based on gender identity or expression. Certainly this process is not “done,” but it seems that attitudes are changing and that more and more jurisdictions will prohibit discrimination on the basis of sexual orientation or gender identity.

In short, more and more Americans are part of some class protected by a discrimination law. In that sense, employers should expect more and more of their termination and other adverse employment decisions to be scrutinized by plaintiffs’ lawyers, judges, juries and administrative agencies. There are very few remaining free passes where an employer can fire you because “they don’t like your tie.”

Contributing Author

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William Nolan

William A. Nolan serves as the Managing Partner of Barnes & Thornburg LLP’s Columbus, Ohio, office. He is a member of the firm’s Labor and...

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