Discrimination at work is one of the hottest topics of employment law. There are a number of federal and state laws that prohibit discrimination on the basis of specific protected characteristics. Almost all of these laws protect not only employees, but also applicants for employment and sometimes even former employees who are retaliated against after their employment ends.
The Coronavirus pandemic has severely impacted American workplaces. Employees in various industries have reported cuts in work hours, cuts in salary, job-loss, and instructions to work from home. While the world as we know it is changing and adapting to the “new normal,” discrimination laws remain the same. Employees are still protected against discrimination, harassment, and retaliation. This is true even if you are working from home.
As we’ve discussed in previous posts, federal discrimination laws prohibit employers from engaging in discriminatory conduct during employment. This also includes the pre-employment interview process. Employers cannot make a hiring decision based on a person’s age, race, religion, sex, national origin, or disability.
Sometimes, employers trying to gather as much information as possible about an applicant will rely on preconceived notions and stereotypes in doing so.
A few of the problematic questions employers routinely ask are:
- whether an applicant is married, engaged, single, or divorced;
- whether an applicant has any children and, if so, how old they are;
- whether an applicant plans on becoming pregnant;
- what an applicant’s spouse or boyfriend does for a living;
- whether an applicant attends religious services and, if so, what days; and
- the origins of an applicant’s last name.
Recently, the United States Supreme Court issued an opinion that will have a significant impact in federal age discrimination cases against government employers. In the case Mount Lemmon Fire District v. Guido, the Court held the Age Discrimination in Employment Act (ADEA) applies to government employers of all sizes.
When the ADEA was passed in 1967, it added age to the list of characteristics that could not be used by an employer as a basis for an adverse employment decision. Under section 630(b), the ADEA defines the term employer as “a person engaged in an industry affecting commerce who has twenty or more employees.” However, the statute also states that an employer “also means … a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State.”
The Facts of the Case
According to the Court’s opinion, the plaintiffs were two men, aged 46 and 54, who were terminated from their positions by the defendant fire department when the fire department began facing budgetary concerns. The fire department was a political subdivision of the State of Arizona. At the time they were fired, the employees were the oldest two firefighters in the department.