What is a protected class as defined by the equal employment opportunity commission (eeoc)

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Not all unfair treatment is a violation of the law. In the employment context, for example, courts have noted they are not “super-personnel” departments meant to second guess every employment decision (see, e.g., Johnson v. Weld County (10th Cir. 2010); Chapman v. AI Transp. (11th Cir. 2000). Instead, the civil right statutes only prohibit actions that occur because of a person’s membership in a protected class. Congress has extended protections to specific groups who have historically faced hardships in obtaining employment, housing, and other public accommodations.

What are the protected classes?

Under federal law, employers cannot discriminate on the basis of race, color, national origin, religion, sex, age, or disability. The law is not, however, a blanket bar on employers taking into account a person’s membership in one of these groups in all circumstances. For example, employers may consider membership in a protected class when making employment decisions if there is a business necessity for doing so, or if membership in a protected class is a bona fide occupational qualification. There are also certain criteria that must be met in order to be considered a member of protected class, such as being a qualified individual with a disability to be entitled to reasonable accommodations in the workplace.

History of the protected class

Race and color were the earliest protected classes. The Civil Rights Act of 1866 prohibits discrimination “in civil rights or immunities . . .on account of race, color, or previous condition of servitude.” Section 1981(a) of the Act barred discrimination in the making of contracts on the basis of race and color, which is understood to include employment contracts.

The protected classes grew significantly in the 20th Century, beginning with the passage of the Civil Rights Act of 1964. Title VII of the Act prohibits discrimination in employment on the basis of race, color, national origin, sex, and religion. The Act also created the Equal Employment Opportunity Commission (“EEOC”), the independent federal agency that oversees the enforcement of Title VII and the other civil rights acts as they apply to employment.

In 1967, Congress added age to the listed of protected classes with the Age Discrimination in Employment Act (“ADEA”). The ADEA only applies to individuals age 40 and older, and the federal courts have interpreted it narrowly over time, generally requiring more than a year or two age difference between employees to support a finding of age discrimination.

Disability first entered the list of protected classes in a limited way in 1973. The Rehabilitation Act of 1973 prohibits discrimination based on disability in federal employment. Employees in the private sector gained similar protections in 1990 with the passage of the Americans with Disabilities Act (“ADA”). Congress expanded the definition of who is covered by the ADA in 2008 with the Americans with Disabilities Amendments Act.

Protections against harassment

Title VII states that an employer may not discriminate against an employee or applicant for employment “because of” the person’s race, color, national origin, sex, or religion. The statute does not specifically reference harassment, or the creation of a hostile work environment that may include non-economic harms such as name calling or inappropriate touching. In Meritor Savings Bank (1986), the Supreme Court recognized that such harassment, although it might not rise to the level of distinct economic harms such as a demotion or firing, is covered by Title VII.  This interpretation also encompasses the other civil rights statutes, and includes harassment based on retaliation.

The Supreme Court limited the reach of Title VII’s harassment protections in Meritor Savings to only those instances where the harassment is so “severe or pervasive” that it alters the terms and conditions of the employment. Since then, courts across the country have had to determine on a case-by-case basis what harassment is sufficiently severe or pervasive to meet this standard.  Generally there must be multiple incidents of harassment to meet the standard. In only very limited circumstances, such as the use of specific racial slurs or the hanging of a noose, is a single incident sufficiently severe.

The ongoing evolution of sex as a protected class

In Price Waterhouse v. Hopkins (1989), the Supreme Court held that sex stereotyping is a form of prohibited sex discrimination. In Hopkins, Price Waterhouse denied Ms. Hopkins a position as a partner. The partnership committee based its decision on Ms. Hopkins not behaving as they expected a woman to in the workplace. For example, Ms. Hopkins received feedback that she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry.” The Court concluded that allowing such discrimination would undermine the purpose of Title VII.

The concept of sex stereotyping is an important part of more recent developments in the area of protected classes. Two federal courts of appeals and the EEOC have concluded that Title VII prohibits discrimination based on sexual orientation because it is a form of sex discrimination.  These courts have concluded that sexual orientation discrimination is based on stereotypes of who an individual should be attracted to based on the individual’s sex. As the EEOC noted in Baldwin v. Department of Transportation (2015), “‘[s]exual orientation’ as a concept cannot be defined or understood without reference to sex.”

The Bostock Supreme Court ruling

In June 2020, the Supreme Court issued a decision in Bostock v. Clayton County, Georgia, holding that Title VII’s prohibition against discrimination “because of  . . . sex” encompasses discrimination based on sexual orientation and gender identity.  The Court rested its decision on the plain language of the statute, which bars an employer from treating an employee worse than others because of the employee’s sex, and concluded that any action taken because of sexual orientation or gender identity inherently involves a consideration of an employee’s sex.  The Court illustrated this through several examples, including a hypothetical involving a model employee introducing a woman as the employee’s spouse at a company holiday party.  The Court explained that whether the employee would fire the employee for violating a policy against employing gay or lesbian employees would turn on the sex of the employee—if the employee is a man, the company will not fire him.  If the employee is a woman, the company will terminate her employment.

By relying on the plain language of the statute, the Court did not need to reach the question of whether sexual orientation or gender identity discrimination involves sex stereotyping.  It also did not expand Title VII to include new protected classes, as the dissenting justices asserted.  Instead, the Court clarified that sexual orientation and gender identity discrimination are forms of sex discrimination

Conclusion

Protected classes are how federal law conceptualizes protections against discrimination. The understanding of the classes may continue to evolve, either incrementally through courts or through federal legislation. Societal responses to new issues of discrimination generally start the process.

Editor’s Note: This report was updated to include a discussion of the June 2020 Bostock Supreme Court ruling. The original report was published December 4, 2018.

The U.S. Equal Employment Opportunity Commission (EEOC) is the agency responsible for enforcing federal laws regarding discrimination or harassment against a job applicant or an employee in the United States. The EEOC was formed by Congress to enforce Title VII of the Civil Rights Act of 1964, opening its door for business on July 2, 1965. It is headquartered in Washington, D.C., and as of 2021, it maintains 37 other field offices throughout the United States in 15 districts.

  • The Equal Employment Opportunity Commission (EEOC) investigates charges brought against employers regarding discrimination against employees and job applicants.
  • It was created by Congress in 1964 to enforce Title VII of the Civil Rights Act.
  • Companies are subject to the law if they have 15 or more employees (20 or more employees for age discrimination cases).
  • The laws apply to all aspects of work, including hiring, firing, promotions, harassment, training, wages, and benefits.

Due to the COVID-19 pandemic, the EEOC has closed all of its physical field offices. However, you can still file a discrimination charge online or by phone at 1-800-669-4000.

The EEOC enforces federal laws that make it illegal to discriminate because of a person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information. In addition, it is against the law to discriminate against a person who complains about discrimination, has filed a charge of discrimination, or has participated in an employment discrimination investigation or lawsuit. (In fact, 55.8% of charges filed with the EEOC in the 2020 fiscal year were for retaliation.) Indeed, business ethics have changed considerably since the turbulent 1960s first roiled their relatively placid waters.

On June 15, 2020, in a 6-to-3 ruling in Bostock v. Clayton County, Georgia, the U.S. Supreme Court determined that protections against discrimination by sex in Title VII of the Civil Rights Act protect LGBTQ workers. Justice Neil M. Gorsuch, who wrote the opinion, stated: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The EEOC is vested with the authority to investigate any charges of discrimination brought against employers, who are generally subject to EEOC laws if they have at least 15 employees (in the case of age discrimination, that minimum rises to 20). Many labor unions and employment agencies fall under its jurisdiction as well.

The EEOC’s role is to fairly and accurately assess allegations in the charge and then make a finding. If it finds discrimination has occurred, then it will try to settle the charge. It also has the authority to file a lawsuit to protect individuals and the interests of the public.

The laws enforced by the EEOC apply to all types of work situations, processes, and functions. This includes the hiring and firing of employees, harassment among the staff or management, job training, promotions, wages, and benefits. Another role of the EEOC is to seek to prevent discrimination before it can occur.

The EEOC works on preventing workplace discrimination through outreach and a variety of educational and technical assistance programs.

  • EEOC representatives make no-cost presentations (on a limited basis) to professional associations, conferences, employer groups, and nonprofits, explaining the mission of the EEOC, the laws it enforces, and how the charge/complaint process works.
  • Field offices have designated small business liaisons to assist small businesses with their questions.
  • The EEOC also provides targeted information and resources for veterans with disabilities.
  • Youth@Work is an EEOC program designed to educate young workers about their workplace rights, including informing them about real cases involving teen workers and how to file a complaint.
  • The EEOC also offers more in-depth training to employers for a fee through its EEOC Training Institute.

Employers are liable for both their own behavior and that of their staff members, even including independent contractors.

If you believe you’ve been discriminated against at work because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information, then you can file a charge of discrimination with the EEOC. This is a signed statement, describing how an employer, union, or labor organization engaged in employment discrimination, that asks the EEOC to take remedial action. All of the laws enforced by the EEOC, except for the Equal Pay Act, require you to file a charge of discrimination before you can file a job discrimination lawsuit against your employer.

There are time limits of either 180 or 300 calendar days, depending on certain circumstances. You can file a charge through the EEOC Public Portal after you submit an online inquiry and have an intake interview with an EEOC staff member.

The EEOC may specifically investigate not only employers for violations but also members of their staff accused of engaging in harassment or discrimination. For example, if a manager refuses to interview or hire qualified job candidates solely because of their ethnicity or race, then the employer can be held accountable for allowing racist behavior to persist. This also can be applied to employers who permit harassment to continue unchecked. And although the EEOC itself says that independent contractors are not subject to anti-discrimination laws, in 2009, the U.S. Second Circuit Court of Appeals ruled in Halpert v. Manhattan Apartments that companies can be held liable for independent contractors who act on their behalf.

The EEOC has filed lawsuits against companies where corrective action was not taken after derogatory slurs, threats, assaults, unwanted sexual comments, or inappropriate touching occurred in the workplace. Companies also can be penalized for not warning employees about past misconduct committed by another employee or manager with whom they are directed to work.

EEOC lawsuits might seek monetary damages, including punitive and compensatory damages and injunctive relief. In fiscal year 2020, the EEOC received 67,448 charges of workplace discrimination, with 38% of claims being allegations of discrimination based on race or color. Charges for sex-based harassment, which includes charges for sexual harassment, clocked in at 11,497, down by nearly 1,300 from 2019.

The EEOC is open to attempts to settle cases before the issue is investigated and possibly taken to trial. It offers a mediation procedure, an informal process in which two parties can work with a neutral mediator to see if they can reach a reconciliation of their differences. The mediator doesn’t ultimately make a determination, however, serving only to help the two parties reach a settlement on their own. If mediation fails, then the EEOC proceeds to formally investigate the complaint.