Frequently Asked Employment Law Questions - Employment discrimination

Employment discrimination occurs when an employer intentionally terminates or takes other adverse job action against an employee because of the employee’s protected classification or traits, such as age, race, gender, etc.

Under federal law, it is illegal for an employer to take adverse job action against an employee because of his or her race, national origin, color, religion, gender, age, disability, or genetic information.  The federal laws include Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.

Number of Employees Required for Coverage

Title VII and the ADA apply to employers who employ 15 or more employees.  The ADEA applies to employers who employ 20 or more employees.

Prohibited Job Actions 

The prohibited adverse job actions include not only employment termination, but many other tangible job actions, such as demotions, failure to promote, failure to hire, pay cuts, unequal terms and conditions of employment, unequal pay, unequal benefits, and harassment.

Federal Remedies for Employment Discrimination

Under the federal laws, an employee who prevails in an employment discrimination lawsuit may recover back pay, front pay, the value of lost employment benefits such as insurance and retirement, punitive damages and compensatory damages for emotional distress (subject to certain caps), attorneys’ fees and litigation costs.  Injunctive relief, such as reinstatement of employment, may also be awarded.  Under the ADEA, an employee may recover “double damages.”

Protected Classes

Under the Illinois Human Rights Act, it is illegal for an employer to take adverse job action against an employee because of his or her race, national origin, religion, gender, age, and disability.  Additionally, the Illinois Human Rights Act specifically covers several traits that currently do not constitute protected classes under federal law, including sexual preference, sexual identity, and marital status.

Number of Employees Required for Coverage

The Illinois Human Rights Act applies to Illinois employers who employ 15 or more employees in Illinois.  However, unlike federal law, for sexual harassment, retaliation, and disability discrimination claims, there is no required minimum number of employees under the Illinois Human Rights Act.

Remedies for Employment Discrimination under Illinois Employment Law

Under the Illinois Human Rights Act, an employee who prevails in an employment discrimination action may recover back pay, front pay, lost benefits, uncapped compensatory damages for emotional distress, attorneys’ fees and litigation costs, but not punitive damages.

Prima Facie Case

An employment discrimination claim may be established through direct or indirect evidence. Under the “burden shifting” method of proof, an employee is initially required to establish: (1) that he or she is a member of a protected class; (2) that he or she was satisfactorily performing his or her job duties; (3) that adverse job action was taken against him or her; and (4) that similarly situated employees who are not members of the employee’s protected class were treated differently or more favorably than the employee under similar circumstances.

Employer’s Proffered Reason

If an employee establishes a prima facie case of employment discrimination, the employer may come forward and proffer a legitimate, non-discriminatory reason for the adverse job action.

Pretext

If the employer comes forward with a proffered reason for the challenged job action, the employee must prove that the employer’s proffered reason is really pretext to mask intentional employment discrimination.  Pretext may be established by showing that the proffered reason is untrue, not the real reason, contrived, suspicious, or unworthy of belief, etc.

Employee’s Ultimate Burden of Proof

Ultimately, the employee must prove that the adverse job action resulted from intentional discrimination.  Proving discriminatory intent usually involves a discriminatory animus on the part of the employment decision-maker.

If an employer terminates an employee due to a mistake or bad business judgment, the employee does not have legal recourse against the employer.  In an employment discrimination case, an employer who terminates an employee because of poor business judgment, as opposed to intention discrimination, is not liable.

If an employer terminates an employee for unfair reasons or under circumstances that are totally unfair, the employee does not have legal recourse against the employer, as long as there was no illegal reason.  Unfairness alone is not illegal under employment law (remember employment “at will”).

Gender discrimination occurs when an employer treats an employee differently because of their gender.  Gender discrimination is also known as sex discrimination.  Gender discrimination is prohibited under federal law (Title VII of the Civil Rights Act of 1964) and Illinois law (the Illinois Human Rights Act).

Examples of Gender Discrimination

One example of gender discrimination is when an employer terminates an employee on account of their gender.  There are many other common examples of gender discrimination, often involving discrimination against women in the workplace.  These include: (1) the failure to hire women for certain positions that are often misperceived as “male positions,” (2) the promotion of men and the failure to promote women to managerial positions or positions of power or leadership within an organization (commonly referred to as the “glass ceiling),” (3) unequal pay or benefits for the same work, and (4) employment decisions based upon gender stereotypes.  Gender discrimination frequently involves the application of different standards to women and men based upon misconceived notions of traditional roles for women and men at home and in the workplace.

The elements of a prima facie case of sex discrimination are essentially the same as with other protected class discrimination.  The employee must demonstrate that she: (1) is a member of a protected class, (2) satisfactorily performed her job, (3) was subjected to adverse job action, and (4) was the victim of disparate treatment, i.e., that similarly situated male employee were treated differently or more favorably by the employer under similar circumstances.

If the employer proffers a legitimate, non-discriminatory reason for the adverse job action, the employee must prove that the proffered reason is really pretext to hide intentional discrimination based on the employee’s sex.  The employee must prove that a gender-based discriminatory intent motivated the job action in question.  Discriminatory intent often involves a gender-based animus that is pervasive in the workplace and shared by the employment decision-maker.

Yes.  Adverse employment action against a male employee because of his gender is also unlawful, and provides the basis for a gender/reverse gender discrimination claim.

Pregnancy discrimination is a form of gender discrimination that is unlawful under federal law (the Pregnancy Discrimination Act) and Illinois law (the Illinois Human Rights Act).  Pregnancy discrimination occurs when an employer terminates or takes other adverse job action against an employee because of her gender/pregnancy.  Pregnancy discrimination also includes refusing to hire or retain pregnant women, or requiring pregnant women to take forced leaves of absence when they are willing and able to work.  Pregnancy discrimination may also occur when an employer terminates a non-pregnant employee because of her known intention to become pregnant in the future, or because she is trying to become pregnant.

New Protections for Pregnant Employees

Effective January 1, 2015, Public Act 98-1050 amended the Illinois Human Rights Act to establish pregnancy as an independent protected class and create new protections for pregnant employees. 

Coverage

The new Illinois Pregnancy Rights in the Workplace Law applies to Illinois employers employing 1 or more employees, and covers employees who are pregnant, have recently given birth, or who have a medical or common condition related to their pregnancy or childbirth. 

Pregnancy Discrimination Prohibited

The new law makes it unlawful for an employer to discriminate against an employee or job applicant on the basis of pregnancy, in terms of hiring, promotion, training, discharge, discipline, benefits, and privileges or conditions of employment. 

Reasonable Accommodation and Maternity Leave

In addition, the new law requires Illinois employers to provide reasonable accommodation to pregnant employees, unless the accommodation would impose an undue hardship on business operations.  A reasonable accommodation is defined as a reasonable modification or adjustment to the job application process or work environment, or to the manner or circumstances under which the position desired or held is customarily performed, that enable an applicant or employee affected by pregnancy to be considered for the position or to perform the essential functions of that position.  The amendment lists many examples of reasonable accommodations, including, significantly, time off to recover from pregnancy, and leave necessitated by pregnancy.  This effectively creates a statutory duty for an Illinois employer to provide a pregnant employee with maternity leave. 

Reinstatement

The employer is also required to reinstate the employee to her original job or an equivalent position upon her return from maternity leave, unless reinstatement would impose an undue hardship on the ordinary operations of the employer. 

Retaliation Prohibited

Retaliation against an employee because the employee requested or was provided any reasonable accommodation is prohibited.

Under the Family and Medical Leave Act, an employer with 50 or more employees is required to provide an eligible employee with up to 12 weeks of unpaid maternity leave.  Additionally, under the Illinois Human Rights Act, an Illinois employer with 1 or more employees is required to provide a pregnant employee with time off to recover from and leave necessitated by a pregnancy, as a reasonable accommodation.  

Age discrimination is a form of employment discrimination that is unlawful under federal law (the Age Discrimination in Employment Act) and Illinois law (the Illinois Human Rights Act).  Age discrimination occurs when an employer terminates or takes other adverse job action against an employee because of his or her age.  Employees who are in the protected age class, which is age 40 and up, are protected by the age discrimination laws.  However, an employer is not required to retain an employee simply because he or she is in the protected age class.

Examples of Age Discrimination

Senior executives are often victims of age discrimination.  An organization may terminate a senior executive, despite decades of valuable contributions to the organization, because he or she is perceived as too old for the organization’s image.  In these instances, the discrimination may be discrete.  Position elimination is a commonly used subterfuge for the termination of an older employee.  Instead of directly replacing the employee, an employer may divide up the duties of the employee’s position and give them to several different younger employees, typically in newly created positions, as part of a company restructuring or reorganization.

Prima Facie Case of Age Discrimination

In order to prove an age discrimination case, an employee must establish that:  (1) he or she is in the protected age class; (2) his or her job performance was satisfactory; (3) adverse job action was taken against him or her; and (4) similarly situated substantially younger employees were treated more favorably.

Proffered Reason

If the employee establishes a prima facie case of age discrimination, the employer may come forward with a legitimate, non-discriminatory reason for the challenged job action.

Pretext for Age Discrimination

If the employer proffers a reason for the employment decision in question, the employee must establish that the proffered reason is just pretext for age discrimination; and that intentional age discrimination was the real reason for the employment decision.

Similarly Situated Substantially Younger Employees

The younger comparable employee does not have to be under age 40; he or she may also be in the protected age class.  The comparable, however, must be substantially younger that the employee who is alleging age discrimination.  For instance, a 70-year-old employee who is replaced by a 50-year-old employee may have an age discrimination claim.  On the other hand, a 41-year-old employee who is replaced by a 39-year-old employee would have difficulty establishing an age discrimination claim, even though the comparable employee is not in the protected age class.

Reduction-in-Force Cases

An employer who eliminates an employee through a reduction-in-force is not insulated from liability for age discrimination or other employment discrimination.  The employer’s process of selecting which employees to lay off and which employees to retain may be subject to statistical scrutiny.  An employee may still have a viable employment discrimination claim if he or she was laid off in a rif due to a protected characteristic, such as the employee’s age, while similarly situated employees without that characteristic were retained.  In a reduction-in-force age discrimination case, an employee is not required to prove that he or she was directly replaced by a substantially younger employee, only that substantially younger employees were treated more favorably than the employee in the reduction-in-force.