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Discrimination


This website is an EMPLOYMENT LAW GUIDE for both non-lawyers and lawyers alike, maintained by the Discrimination Law Center, P.A. It has sections on nearly every area of employment law, including job discrimination, sexual harassment, age, race, gender, pregnancy, glass ceiling, and disability discrimination, manager wage & overtime claims, breach of contract, non-compete clauses, wrongful termination, whistle blowing, and much more. Various resources and government information are provided. We hope it can answer most of your questions.



  • RACE discrimination

  • It is illegal under both Federal and State Law to discriminate in the "terms or conditions of employment" on the Basis of a person's race or color. 

    "Terms or conditions of employment" means just about anything relating to someone's job: their position, pay, title, hours, vacations, most everything is a term or condition of employment. Whether or not a person is hired is also considered a term or condition of employment

    Race is generally defined as a person's ancestry or ethnic characteristics. Everyone is some race or color. This means that it is illegal to discriminate against anyone, if the basis is their race or color. 

    Employment race discrimination in the workplace based on association with people of a particular race is also prohibited. For instance, if an employer fired a white employee because she had black friends, or was dating a black man, the white woman would have a discrimination suit, whether or not the employer is prejudiced against whites. 

    It is also illegal to discriminate on the basis of "color". In one case, an employer hired a "light-complexioned" black applicant with "Caucasian features" over another black applicant who had a "dark complexion" and "Negroid features". This was also against the law, even though in a strict sense one race wasn't being preferred over another. 

    There are two types of race discrimination in the workplace: "disparate treatment" and "disparate impact"

    Disparate Treatment, Race Discrimination In The Workplace 

    "Disparate treatment" is straightforward discrimination. Simply put, it is treating a person differently because of a protected class, like sex or race. 

    Disparate Impact, Discrimination In The Workplace 

    Disparate Impact Discrimination is more complicated. "Disparate Impact" is where some type of company policy excluded a certain individual or individuals from the job or from promotions. The policy wasn't designed to exclude them; that was just the unfortunate result. 

    One example arose often in fire departments. These agencies had various strength requirements for job applicants. Women were frequently unable to meet these requirements. In some instances, the requirements were absolutely necessary to ensure the firefighters were qualified. But in many instances, the requirements were simply too high; the were more than was necessary. Qualified women were therefore being excluded unnecessarily. This does not mean the fire departments were necessarily trying to exclude women. That was just the result of their policy; it had a disparate impact upon women. Because the policy wasn't sufficiently job-related (too much strength was required) there was discrimination.

  • AGE discrimination


  • Generally, discriminating on the basis of age in the workplace is illegal under both the Federal Age Discrimination in Employment Act (ADEA), and the Florida Fair Employment and Housing Act (FEHA). 

    Under both laws, there are some special limitations on who can sue. (For general limitations on who can sue and be sued, see Florida Fair Employment & Housing Act.) 

    People under forty years old are not protected by age discrimination in the workplace laws. If an employer refuses to hire somebody because he or she is thirty-nine, and therefore "too young", that is not illegal. But if it because he or she is forty and "too old", that is illegal. 

    Age discrimination has some special aspects that make it different from other types of employment discrimination. A few of these are discussed below. 

    Golden Handshakes 

    Sometimes when employers are down-sizing, they lay people off by offering "golden handshakes", which are special packages to employees who agree to take early retirement. This is not age discrimination. However, if it is being done for the purpose of getting rid of older workers just because of their age, and if it can be shown that there is a real discriminatory motive, that is illegal. 

    Replacing Older Workers 

    It is illegal to replace a person over 40 with a person under 40, if age is the reason. It is also illegal to replace a person over forty with a younger person who is also forty. 

    Older Worker's Benefit Protection Act 

    The Older Worker's Benefit Protection Act provides protection of benefits or benefit packages for older workers. According to the act, an employer must provide equal benefits for older workers as they do for their younger counterparts. An employer can accomplish this by either providing packages that are equal in benefit or by spending the same amount of money on each person. An individual cannot waive his right under this act, unless that waiver is knowing and voluntary. 

    Replacing Higher Earners and Age Discrimination in the Workplace 

    It is not illegal to replace people who are making high wages with people who will make less because they have less seniority. 

    However, this usually means replacing older workers with younger ones. If the wage considerations are not the real motivator, and the employer is actually trying to replace older workers with younger ones, that it illegal. Here, the employee must prove that it is the age, not the wages, which is motivating the employer to fire the older workers. 
  • SEXUAL harassment
  • Florida Law - Sexual Orientation Discrimimination In The Workplace 

    It is illegal in Florida for an employer to discriminate against an employee because of that employee's sexual orientation or perceived sexual orientation. 

    There are no federal laws prohibiting this type of discrimination. 

    Perceived Sexual Orientation 

    It is also illegal in Florida for an employer to discriminate against an employee on the basis of that employee's perceived sexual orientation. 

    So if an employer believes an employee is gay, and fires him because of that, it is illegal whether or not the employee is actually gay. 

    Statute of Limitations on Sexual Orientation Discrimination In the Workplace 

    One of the aspects of the Florida law is that the employee must make a complaint to the Florida Labor Commission no more than 30 days after he or she is discriminated against. Only after the Labor Commission has processed the claim may the employee sue in court. 

    Sexual Orientation Discrimination and Combination With Other Laws 

    Frequently the same actions that violate the laws against sexual orientation discrimination violate other laws as well. It is possible that an employer who is discriminating on the basis of sexual orientation is also discriminating on the basis of gender. 

    For example, a male employer asks a lesbian employee to sleep with him. She says no, and mentions her sexual orientation. He says that he won't employ a lesbian and fires her. It could be argued that he has also discriminated on the basis of sex, because it's illegal for him to fire her just because she didn't sleep with him. That would be a form of sexual harassment. (For a fuller discussion on sexual harassment, see the section on Sexual Harassment - Workplace.) 

    Damages for Sexual Orientation Discrimination 

    The law against sexual orientation discrimination is very new, so it is not clear what damages can be received in court. However, it appears that employees can recover their lost wages and other benefits, emotional distress damages, and punitive damages. It is not at all clear whether or not they may recover attorneys fees and costs.

  • GENDER discrimination


  • Title VII and the FEHA prohibit sex discrimination in employment. 

    Terms or Conditions of Employment 

    Sex discrimination is treating an employee or employees differently because of their gender. Whenever this discrimination affects the "terms or conditions of employment", it is illegal. 

    "Terms or conditions of employment" means just about anything relating to someone's job: their position, pay, title, hours, vacations, most everything is a term or condition of employment. Whether or not a person is hired is also considered a term or condition of employment. 

    Disparate Treatment & Disparate Impact 

    There are two types of sex discrimination: "disparate treatment" & "disparate impact"

    Disparate Treatment 

    Disparate treatment is straightforward discrimination. Simply put, it is treating a person differently because of his or her sex. 

    Disparate Impact 

    Disparate Impact Discrimination is more complicated. "Disparate Impact" is where some type of company policy excluded a certain individuals from the job or from promotions. The policy wasn't designed to exclude them; that was just the unfortunate result. 

    One example arose often in fire departments. These agencies had various strength requirements for job applicants. Women were frequently unable to meet these requirements. In some instances, the requirements were absolutely necessary to ensure the firefighters were qualified. But in many instances, the requirements were simply too high; the were more than was necessary. Qualified women were therefore being excluded unnecessarily. This does not mean the fire departments were necessarily trying to exclude women. That was just the result of their policy; it had a disparate impact upon women. Because the policy wasn't sufficiently job-related (too much strength was required) there was discrimination. 

    Equal Pay Act 

    Under the Equal Pay Act, an amendment to the Fair Labor Standard's Act, an employer may not discriminate in wages on the basis of sex. When male and female employees perform jobs which require substantially equal skill, effort, and responsibility, and are performed in similar working conditions, an employer must pay his employees equally. An employer, however, may be able to demonstrate that these payment decisions are based on a reasonable factor other than sex, such as merit, a seniority system, or a quantity system. If an employee can establish a violation of the Equal Pay Act, an employer must correct the differential by increasing the wages of the lower paid sex, not by decreasing the wages of the higher paid sex. 

    Stereotyping 

    It is also illegal to make employment decisions based on stereotypes regarding gender. 

    For example, in on case an employer was held to have violated the Federal Title VII anti-discrimination law when it delayed a female employee's promotion based in part on evaluation comments describing her as "macho" and advising her to "take a course in charm school". This woman was treated differently because of her gender, and because she seemed too "male". 

    Gender Roles 

    Frequently employers expect women to have certain duties, such as caring for children. In one case, an employer did not hire women with preschool-age children, while at the same time it did hire men with preschool-age children. Even though most of the people it hired were women, there was still discrimination. The employer didn't think women with young children should be working outside the home. The employer is entitled to this belief. But he couldn't let it affect his employment decisions. When his beliefs did influence his hiring decisions, he broke the law.

  • DISABILITY discrimination


  • Federal and Florida Law 

    The Federal Americans With Disabilities Act (ADA) is the Federal Law that makes it illegal for employers to discriminate on the basis of a disability. 

    It makes it illegal for an employer to discriminate against a qualified individual with a disability in job application procedures; the hiring, advancement, or discharge of employees; employee compensation; job training; or other terms, conditions, and privileges of employment, because of the individual's disability. 

    Florida protects disabled workers with the Fair Employment and Housing Act (FEHA). While the Americans with Disabilities Act is similar in protection to the Fair Employment and Housing Act, FEHA is more protective of employees in several important aspects. 

    First, under the ADA, an individual is disabled if substantially limited in a major life activity. Under FEHA, however, an individual is disabled if limited in a major life activity. Thus, FEHA requires a lower standard of limitation in order to warrant protection against discrimination. 

    Second, under the ADA, 'work' is not necessarily a major life activity. Under FEHA, work is always a major life activity, even if the disability only limits your ability to do one particular job. Again, FEHA provides greater protection to those with disabilities. The inability to perform one job due to a disability is sufficient to prove a limitation in a major life activity. 

    Third, under the ADA, an individual will be evaluated in a mitigated state. For example, consider an individual with a vision problem. Under the ADA, that person's vision disability will be evaluated in the mitigated state (with glasses). As a result, that person is less likely to be regarded as disabled. Under FEHA, however, an individual will be evaluated in the unmitigated state, effectively making it easier for an individual to be considered disabled. 

    Qualified Individual With a Disability 

    For the employee to be eligible to make a claim of disability discrimination under the ADA or FEHA, he must be a "qualified individual with a disability." These means that he must be able to do the job. For instance, a person with no hands would not be qualified to be a typist. (However, see below discussion on "reasonable accommodation".) If the employer didn't give him the job, it wouldn't be discrimination. It's just that the person simply isn't qualified. 

    "With a disability" means that the worker is actually disabled. For an injury, disease, or their ailment to be a "disability" under the law, it must "substantially limit one or more major life activities." A mere annoyance is not enough. The disability must actually interfere with a person's life. 

    In determining whether or not a person actually has a disability, the Courts pay close attention to whether or not the ailment affects the person's job and ability to earn a living. So, even if the disability doesn't affect most areas of life, if it affects the person's employment, it is more likely to be considered a disability. 

    Perceived Disability 

    It is also unlawful to discriminate against a person who is perceived to have a disability. If the employee is not disabled, but the employer believes he is, and discriminated against him, that is also illegal. 

    In this circumstance, it is not necessary to determine if the employee is a "qualified individual" with a disability. However, the Court may consider whether or not the person would have been a qualified individual if he actually had the disability that the employer perceived him to have. The law is not entirely clear on this issue. 

    Reasonable Accommodation for An Employee With a Disability 

    Reasonable Accommodation is the idea that even if a person is disabled, and even if that disability may make it seem like he or she can't do a job, the employer must consider whether or not a "reasonable accommodation" can be made. A "reasonable accommodation" is when the employer modifies the job duties, provides some extra help, or takes some other measure to ensure that the person can still be able to do the job. 

    For instance, let's say a person in a wheelchair wants a job in an office that is on the second floor. There are no elevators in the building. To accommodate he worker, the employer could install an elevator. But is that a "reasonable accommodation"? Is it reasonable to expect the employer to spend that kind of money? Probably not, particularly if it's just one small business. 

    But there might be other possibilities. Perhaps the potential employee's job is really just talking on the telephone, selling products. Maybe the job can be done from home, and there is no need to even be in the office. Isn't it reasonable to ask the employer to let the person work at home? It may be. 

    Employees have to ask for reasonable accommodations. Once they do, the employer has the right to consider the requests, and make counter-offers that the employer might see as more reasonable. If the employer and employee can't agree, then the employee might want to consider bringing suit. However, to win, the judge or jury will have to find that the employee's request was reasonable, or that the employer's counter-offers were not sufficient.