Title VII of the Civil Rights Act of 1964 as amended, which generally covers employers with 15 or more employees, prohibits discrimination in employment or application for employment based on race, color, religion, sex, national origin and alienage. There is a presumption that questions about race, color, religion, sex, etc. are inherently suspect and may show illegal discrimination under Title VII. Employers should be able to show that its actions are based on job relatedness and business necessity.
Title VII, administered by the Equal Employment Opportunity Commission (EEOC), prohibits discriminatory practices by private employers, labor organizations, private employment agencies and by federal, state or local governments or agencies.
What appears to be a discriminatory employment practice may not be unlawful if the practice/policy is based on merit, seniority or the quality or quantity of the employee’s work production. These are all distinctions necessary to the proper operation of a business.
In addition to the safeguards against discrimination available under Title VII, federal law provides for additional remedies for discrimination under other civil rights laws, particularly where employees of state or local governments or political subdivisions are involved. Employees working directly for governmental employers are entitled to "due process" in connection with decisions that adversely affect their employment. "Due process" ordinarily requires that an employee be given a fair hearing to determine whether the decision affecting his or her employment is warranted in the circumstances. Suits seeking enforcement of a public employee’s due process and other constitutionally protected rights, including the right to free speech, are usually filed under 42 U.S.C. § 1983. Remedies under such suits may include recovery of front pay, back pay, general damages and attorney’s fees.
According to the EEOC, asking about arrest records, even though allowed under Title VII, may have a disparate impact on minorities who get arrested more often. The EEOC considers it unlawful to disqualify employees based on arrests without proof of job-relatedness.
Also, inquiries about availability to work on weekends must be justified. Such questions may exclude applicants who need religious accommodations.
Inquiries about citizenship should be avoided or confined to asking whether applicant, if hired, can provide proof of authorization to work in the United States.
Also, under the Federal Equal Pay Act, females may have an action for differentials in pay for substantially equivalent work.
The Age Discrimination in
Employment Act (ADEA)
The ADEA prohibits discrimination based on age. A person engaged in an industry affecting commerce who has 20 or more employees for each working day for 20 or more calendar weeks in the year can be sued by a current employee, former employer or an applicant if the employer engaged in the proscribed activity. The aggrieved party must have suffered discrimination after the age of 40. However, an under-40 plaintiff may bring a claim under the ADEA’s anti-retaliation provision. The aggrieved party must be an employee or former employee. The EEOC also has jurisdiction over age discrimination cases. Suit may be brought in state or federal court. ADEA litigants may recover back pay, liquidated damages, compensatory damages, front pay, taxation, interest, equitable relief and costs and fees.
The Americans with Disabilities Act (ADA)
The federal Americans with Disabilities Act prohibits discrimination in employment against persons with physical or mental disabilities. Under the ADA, an employer may ask whether applicants can perform job functions with or without reasonable accommodation. An employer also may ask applicants to describe or demonstrate how they would perform the job, provided all applicants in the job category are asked to do so.
Employers may ask applicants whether they will need reasonable accommodation for the hiring process. In general, an employer may not ask whether applicants will need reasonable accommodation to perform the functions of the job. Employers may ask if applicants can meet attendance requirements. Employers also may ask about applicants’ certifications and licenses and their arrest or conviction records. Employers may ask about illegal but not legal drug use. At the pre-offer stage, employers may not ask applicants about their workers’ compensation history. An employer may ask applicants about their drinking habits unless a question is likely to elicit information about alcoholism, which is a disability. At the post-offer stage, an employer may ask all individuals whether they need a reasonable accommodation to perform the job. Employers are required to provide qualified individuals with a disability a reasonable accommodation, unless doing so would cause the employer undue hardship. If someone requests a reasonable accommodation to perform the job, the employer may ask that person for documentation of the disability.
The EEOC administers the ADA. Suit for violation of the ADA may be brought in state or federal court. ADA litigants may recover back pay, liquidated damages, compensatory damages, front pay, taxation, interest, equitable relief and costs and fees.
The New Mexico Human Rights Act (NMHRA)
In New Mexico, the Human Rights Act, which covers employers with four or more employees, broadens the prohibited distinctions to include ancestry, physical or mental handicap and age discrimination directed at persons in all age groups. The NMHRA now also prohibits discrimination based on sexual orientation and gender identity. The NMHRA also now specifically prohibits discrimination based on genetic predisposition. The New Mexico Human Rights Commission administers the NMHRA.
Additionally, the State Human Rights Act extends protection against discriminatory practices of proprietors of public accommodations and in some cases to private individuals.
In Albuquerque, the Human Rights Board also has jurisdiction over employment discrimination cases if the discrimination claim arises inside the Albuquerque city limits. Rights may be enforced by private lawsuit, but only after resort to the EEOC and the New Mexico Human Rights Commission. Suit under the NMHRA may be brought in state district court.
The National Labor Relations Act(NLRA)
The National Labor Relations Act (NLRA) regulates the employer-employee relationship in matters of protected group activity including union organizational activities and collective bargaining.
The law protects employee rights to form, join or assist labor organizations to engage in other protected group activities and to refrain from any such activities. Employees who wish to bargain collectively through union representation may seek an election by filing a petition with the National Labor Relations Board (NLRB). Similarly, employees who are dissatisfied with their present union may petition for a union decertification election.
An election is decided by a majority of the vote in a secret ballot election conducted by the NLRB.
Once a union is certified by the NLRB, it becomes the exclusive bargaining agent for all employees in the voting unit regardless of whether a particular employee voted in favor of union representation. Bargaining means that the employer and the union negotiate in good faith in order to reach a satisfactory labor agreement. If an agreement between the bargaining agent and the employer is reached, its terms and conditions are reduced to writing. The contract then governs relations between the employer and the employees during the term of the contract. The contract typically sets wages, hours and benefits and other terms and conditions of employment.
The NLRB has jurisdiction over all employers engaged in interstate commerce. Violations of the act by an employer or a labor organization may result in unfair labor practice charges being filed against the employer or labor organization. If it determines that a valid charge has been filed, the NLRB issues a complaint against the employer or the labor organization, and the matter is set for hearing. At the hearing, an administrative law judge receives evidence offered by both sides and makes a decision. A finding that an employer has engaged in an unfair labor practice will subject the employer to sanctions which may include inappropriate cases, the hiring or rehiring of employees unlawfully refused employment or terminated from employment, and the payment of back wages and benefits.
Many other statutory laws extend rights to employees in certain circumstances. In addition, an employer may not terminate an employee for a reason that offends public policy. In some circumstances in carrying out terminations, an employer may be obligated to follow policies relating to grounds and procedures that it has adopted and disseminated to employees. An employee whose termination violates public policy or contravenes the employer’s policies may be entitled to file a lawsuit against the employer for monetary damages.
An important note on procedure and time limits
Almost every right provided for under the law is limited by strict time limitations on filing and other procedures which, if not followed, will result in keeping an individual with an otherwise legitimate claim from obtaining relief. People who believe their rights have been violated should act quickly to ensure that appropriate action is taken within the time required by law. Also, many claims involve complicated legal or procedural difficulties. In these cases, securing the advice of a lawyer as soon as possible is prudent.
Special Note - This information has been issued to inform and not to advise. It is based on New Mexico law in effect at the time of writing. The statements are general and individual facts in any given situation may alter their application or involve other laws not referred to here. You should always seek advice from an attorney if any questions arise. This document is intended as a public service and is not an endorsement of any attorney or law firm.