Employment Discrimination Law
2nd Category: Laws
entitling certain employees to special treatment
Most employment discrimination laws seek to
insure that everyone is treated the same regardless of age, color, disability, gender,
national origin, pregnancy, race or religion.
But there are three types of employment
discrimination laws that entitle an employee to special treatment:
Reasonable accommodation laws
Laws in which the employee is entitled to
Affirmative action laws or policies
Reasonable accommodation laws
Certain employment discrimination laws require
the employer to accommodate some problem which makes it difficult for the employee to
perform his or her job.
Most reasonable accommodation cases involve the
issue of accommodating an employee's disability (under the Americans with Disabilities Act
or the Rehabilitation Act). However, some reasonable accommodation cases involve the issue
of accommodating an employee's religious beliefs (under Title VII).
Please remember that an employer is only required
to provide a reasonable accommodation. In disability cases, the reasonable
accommodation usually falls into one of these categories: (1) altering the duties of the
employee's current job; or (2) transferring the employee to a vacant job.
Case example of
disability discrimination: In
Phelps v. Optima Health, Inc., 251 F.3d 21 (1st Cir. 2001), the
Although a reasonable
accommodation may include job restructuring, 42 U.S.C. §
12111(9)(B), an employer need not exempt an employee from performing
essential functions, nor need it reallocate essential functions to
other employees. Feliciano, 160 F.3d at 785; Soto-Ocasio
v. Fed. Express Corp., 150 F.3d 14, 20 (1st Cir. 1998).
Case example of disability discrimination:
v. Runyon, 132 F.3d 1330 (10th Cir. 1997), the Tenth Circuit held that the federal government has a greater duty to accommodate
employees than other employers.
In religious discrimination cases, the reasonable
accommodation often involves an issue of whether the employee has to work on a particular
day, but that is not always the case as the case example below illustrates.
Case example of religious discrimination:
In Shelton v. University of Medicine & Dentistry of New Jersey,
223 F.3d 220 (3d Cir. 2000), a staff nurse in the Labor and Delivery
section of the Hospital refused to participate in any emergency
procedures that might terminate a pregnancy. The Hospital gave her the
option of either transferring to the Newborn ICU department or speaking
with its human resources department about other available positions.
When she did not accept either offer, she was terminated. The Third
Circuit found no violation of Title VII because the plaintiff was
offered reasonable accommodations. She is a member of the Pentecostal
For more information on disability
discrimination, read our article:
Introduction to the Americans
with Disabilities Act.
Remember that most employment discrimination laws
do not require an employer to provide an accommodation.
For example, let's assume a pregnant woman works
on an assembly line and she regularly has to lift a part weighing 25 lbs. Her doctor
places a lifting restriction on her which prevents her from lifting more than 10 lbs. for
the next three months. Likewise, a male employee on the same assembly line strains his
back. His doctor places an identical lifting restriction on him.
Title VII prohibits an employer from
discriminating against an employee because she is pregnant. But the pregnant employee is
not entitled to a reasonable accommodation (special treatment). She is simply entitled to
be treated the same as the non-pregnant employees.
Therefore, if the employer would accommodate the
male employee, then the pregnant employee should be accommodated. But if the employer
terminates the male employee because he cannot perform his job, then it can terminate the
pregnant employee as well.
Case example of pregnancy discrimination:
v. Padlocker, Inc., 209 F.3d 1319 (11th Cir. 2000). In this Title VII action involving
allegations of pregnancy discrimination, the Eleventh Circuit holds that the Pregnancy
Discrimination Act is not violated by an employer who fires a pregnant employee for
excessive absences unless the employer overlooks the comparable absences of non-pregnant
Laws that entitle the employee to
The Family and Medical Leave Act (or FMLA)
entitles certain employees to family leave or medical leave if the employees meet certain
Case example of family leave:
Holland of Texas, Inc., 208 F.3d 671 (8th Cir. 2000). In this FMLA action, the Eighth
Circuit holds that a three-year-old with an earache (that later requires surgery) has a
"serious health condition."
Case example of medical leave:
Rager v. Dade
Behring, Inc., 210 F.3d 776 (7th Cir. 2000). In this FMLA action, the Seventh Circuit
upholds the termination of the employee for excessive absenteeism where the employee did
not timely provide medical certification supporting her request for FMLA leave.
For more information on the FMLA, read our
Introduction to the Family and Medical Leave Act.