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To achieve our goal of keeping you informed, this blog is Part VIII and an update of our series on federal laws that apply to the issues of workplace harassment, discrimination, & retaliation in New York. In Part VII, we provided you with an overview of “Protected Classes” under the various federal laws. Accordingly, in order to move the discussion forward, we are going to hammer on “Prohibited Conduct,” as required by the applicable federal laws in this blog.

Prohibited Conduct under Federal Laws Applicable to Workplace Harassment, Discrimination, & Retaliation in New York

Americans with Disabilities Act (ADA)

As provided for under 42 U.S.C. § 12112(a), the ADA prohibits, in all aspects of the employment relationship, all forms of discrimination against qualified individuals based on a disability. Specifically, the ADA makes it unlawful to:

  • Segregate or classify employees or job applicants based on a disability such that the status or the employment opportunities of such employees or applicants would be adversely affected.
  • Deny an individual job or employment benefits based on such an individual’s relationship with another person with a disability.
  • Take part in a contractual or another plan (including a referral agency or labor union agreement) under which employees or applicants are discriminated against based on a disability.
  • Use a selection standard or employment test for screening out persons with disabilities, unless such a test or standard is consistent with business necessity or is job-related.
  • Deny an employee or applicant an employment opportunity because such an individual has requested to be reasonably accommodated or even fail/refuse to provide reasonable accommodations to the known limitations of a person with a disability, as long as no undue hardship results when the employer provides such a reasonable accommodation.

Title VII of the Civil Rights Act of 1964 (Title VII)

Employers are prohibited by Title VII from conducts such as:

  • Sexual harassment.
  • Discriminating against employees when hiring, training, discharging, or providing employment privileges, conditions, or terms.
  • Discriminating or retaliating against an employee who has participated in, filed a charge about, complained about, or opposed an employment discrimination lawsuit about or investigation of any practice prohibited by Title VII.
  • Classifying, segregating, or limiting applicants or employees for employment in a manner that employees or applicants would be deprived of employment opportunities or have their status affected.
  • Altering the results of, using different cutoff scores for, or otherwise adjusting the scores of employment-related tests based on some attribute associated with a protected group.
  • Publishing or printing any employment-related notice indicating any discriminatory limitation or preference.

Pregnancy Discrimination Act (PDA)

Under the PDA, employers are required to treat pregnancy as any other medical condition. Thus, while employers are required to permit a pregnant employee to work as long as she can perform her job, such an employee may not be forced to accept unpaid leave or light duty because of a pregnancy. As such, just like under Title VII, employers are prohibited from using childbirth, pregnancy, or related medical conditions as the basis for engaging in the following conducts:

  • Discriminating against employees when hiring, training, discharging, or when providing employment privileges, conditions, or terms.
  • Classifying, segregating, or limiting applicants or employees for employment in a manner through which any employee would be deprived of employment opportunities or have their status affected.
  • Discriminating or retaliating against an employee who has participated in, filed a charge about, complained about, or opposed an employment discrimination lawsuit about or investigation of any practice prohibited by Title VII.
  • Publishing or printing any employment-related notice indicating any discriminatory limitation or preference.
  • Altering the results of, using different cutoff scores for, or otherwise adjusting the scores of employment-related tests based on some attribute associated with a protected group.

Fair Labor Standards Act (FLSA)

The FLSA prohibits employers from retaliating or discriminating against employees who participate in a number of protected activities such as:

  • Testifying in any EPA (Equal Pay Act)-related or FLSA-related proceeding.
  • Serving on an “industry committee.”
  • Filing an EPA-related or FLSA-related complaint, which is part of the FLSA in with the Department of Labor (DOL) or in court.

Age Discrimination in Employment Act (ADEA)

Employers are prohibited by the ADEA from discriminatory/harassment/retaliatory conducts such as:

  • Reducing wages to comply with the ADEA.
  • Discriminating against employees when hiring, training, discharging, or when providing employment privileges, conditions, or terms.
  • Publishing or printing any employment-related advertisement or notice indicating discrimination, specification, limitation, or preference based on age.
  • Maintaining or establishing an employee pension contribution plan permitting or requiring the rate of amounts allocations to an employee’s account to be reduced or allocations’ cessation to an employee’s account when it comes to a defined contribution plan.
  • Classifying, segregating, or limiting employees for employment in a manner through which any employee would be deprived or tend to be deprived of employment opportunities or have status affected.

Equal Pay Act (EPA)

By paying wages to employees at rates that differ from those paid to other employees of the opposite sex for equal work on jobs performed under similar working conditions and that require equal responsibility, effort, or skill, the EPA makes it unlawful for employers to discriminate against employees on sex basis, except where such payments are made on the basis of (1) a merit system, (2) a seniority system, (3) a differential based on any other factor other than sex, or (4) a system measuring earnings by the production’s quality or quantity.

However, the EPA also prohibits employers from reducing wage rates in compliance with the Act itself. The Act also prohibits the discrimination or discharging of employees for instituting or filing any EPA-related proceeding or complaint, serving on an industry committee, or testifying in any such proceeding.

Section 1981

Several types of employment practices are also prohibited under Section 81. Some of these include:

  • All forms of harassment and retaliation against employees.
  • Discrimination against employees based on ancestry, ethnicity, or color.
  • Intentional discrimination when public and private contracts, including employment contracts, are being made based on ancestry, ethnicity, color, or race.

Patient Protection and Affordable Care Act (ACA)/Obamacare

The ACA prohibits many conducts of retaliation against employees such as termination, denial of benefits, demotion, reduction of working hours or pay, coercion, intimidation, reassignment affecting promotion prospects, issuing threats, restraining, denial of promotion or overtime, failing to hire or rehire, and blacklisting.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

The USERRA prohibits all forms of discrimination and harassment based on military service. Thus, employers are prohibited from discriminating in hiring, promotion, providing job benefits, retaining employees, or reemploying based on membership application or membership in a uniformed service. Accordingly, employers are prohibited by the USERRA from taking any adverse action against an employee because the employee has:

  • Participated or otherwise assisted in a USERRA-related investigation.
  • Made a statement or otherwise testified in connection with a USERRA-related proceeding.
  • Exercised a right provided for in USERRA.
  • Taken an action in enforcing a protection afforded by the USERRA.

Family and Medical Leave Act (FMLA)

Under the FMLA, employers are prohibited from:

  • Retaliating or discriminating against prospective employees or employees that have attempted to or even exercised FMLA rights.
  • Denying, restraining, or interfering with employee attempt to exercise or exercise any FMLA rights.
  • Discharging or discriminating against any individual who complains about or opposes any practice prohibited by the FMLA.
  • Discharging or discriminating against any person for intending to testify or testifying in any FMLA-related proceeding or inquiry.
  • Discharging or discriminating against any person for instituting any proceeding or filing a charge under or related to FMLA.
  • Discharging or discriminating against a person who intends to give or who gives any information concerning a proceeding or an inquiry related to any FMLA right.

In Part IX, we will hammer on “Disparate Treatment Claims” in connection to Liability Standards under the above-discussed federal laws that apply to workplace harassment, discrimination, & retaliation in New York.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.