Employment Law Questions

Federal, state and local laws all prohibit discrimination in the workplace. But what exactly does that mean? That could mean you were harassed at work by your boss, co-worker or even a customer. It could also mean you were treated unfairly when it came to hiring, promotions, compensation, lay-offs, wrongful termination or forced retirement. Click through the slideshow below to read some of the most common questions asked by employees in your situation. If you would like any additional information, please schedule a meeting or call us at 412-620-8735.

What are some examples of employment disability discrimination?

First, let’s define disability discrimination: Under Americans with Disabilities Act (federal law), the Pennsylvania Human Relations Act, West Virginia Human Rights Act and Ohio Civil Rights Act, employers are not permitted to discriminate based on a person’s disability, perceived disability or relationship to a person with a disability in hiring, firing, promotion, layoffs, job assignments or other employment benefits. Under the ADA a “disability” is defined as a physical or mental impairment that substantially limits one or more major life activities. So what does disability discrimination look like?

An example of employment discrimination could be an employer who fails to hire you because you had cancer in the past and he or she unreasonably thinks you might have cancer again. Another example could be an employer who terminates an employee’s employment after he or she receives a diagnosis, a substantially limiting impairment, even though the employee can still perform the essential functions of his or her job.

If you are a person with a disability, you might wonder if you may ask for a reasonable accommodation from your work. The answer is “yes.” An employer who fails to provide a reasonable accommodation for an employee with a disability is discriminating against that employee. A reasonable accommodation according to the EEOC is “any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.” It is important to note that “reasonable” means that an employer does not have to provide an accommodation if doing so would cause undue hardship to the employer. An employer can show that a requested accommodation would cause undue hardship if the accommodation would be too difficult or expensive to provide. Also, an employer does not have to provide the exact requested accommodation. It is a process.

A Note on Disability Discrimination and COVID-19: The EEOC has stated that allowing a person with a disability to telework from home is considered a reasonable accommodation. Check out the EEOC’s pandemic Fact Sheet.

What is the Age Discrimination and Employment Act?

The Age Discrimination and Employment Act or ADEA is a law that protects Americans over the age of 40 from employment discrimination. Employment discrimination happens if the employer refuses to hire a person because of their age, or has a layoff policy that affects those over the age of 40 more. Maybe an employer terminated your employment because you were over the age of 40 and replaced you with a significantly younger employee. The younger employee does not have to be under the age of 40. For example, an employer cannot terminate the employment of a 65-year-old because of their age and replace them with a 45-year-old.

The law also prohibits employers, supervisors, co-workers, and even clients and customers from harassing an employee because of their age. Harassment according to the EEOC can include: “offensive or derogatory remarks about a person’s age. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”

The ADEA protects all private employers with 20 or more employees and federal and local government employees. PA, WV, and OH all have state laws that protect older employees as well.

All of the above practices are considered illegal under the ADEA. If you feel that you have been discriminated against give us a call for a free initial consultation.

What is workplace harassment?

According to the Equal Employment Opportunity Commission (“EEOC”) workplace, harassment is:

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

But what does that mean? According to the EEOC, it is illegal for your employer to allow a supervisor, co-worker, or even a non-employee to “offensive jokes, slurs, epithets or name-calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.”

What is sexual harassment and is it different from workplace harassment?

Sexual harassment is unwanted actions or words with a sexual connotation that make it difficult for the employee to work. People of both genders can be sexually harassed. Examples of sexual harassment include: sharing sexually inappropriate images or videos, unwanted inappropriate touching, making unwanted sexual gestures, telling lewd “jokes” or even asking for sexual favors in return for career advancement.

What should you do if you are sexually harassed at work?

If you are sexually harassed at work inform your employer if they don’t already know about the harassment. Take detailed notes of the dates, times, and nature of the harassment. If the sexual harassment does not stop after informing your employer of the illegal behavior consider contacting an attorney to better understand your rights.

Can my employer fire me because of my sexual orientation? Can my employer fire me for being transgender?

No. The Supreme Court decision Bostock v. Clayton County, Georgia ruled that: “An employer who fires an individual merely for being gay or transgender defies the law.” Title VII’s sex discrimination provisions protect lesbian, gay, bisexual, and transgender applicants and employees from discrimination in hiring, firing, promotion, layoffs, job assignments or other employment benefits. Examples of LGBT-related discrimination, according to the EEOC, could include:

Failing to hire a potential employee because of their sexual orientation or transgendered status.
Firing an employee because of their sexual orientation or transgendered status.
“Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.”
“Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.”
“Harassing an employee because of his or her sexual orientation, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.”
Firing an employee because they are planning or have made a gender transition.

What is illegal under Title VII of the Civil Rights Act?

Is it illegal for your employer to discriminate against you because of your race?

Yes! Under Title VII of the Civil Rights Act of 1964 (federal law), the Pennsylvania Human Relations Act, West Virginia Human Rights Act and Ohio Civil Rights Act employers are not permitted to discriminate based on race or skin color in hiring, firing, promotion, layoffs, job assignments or other employment benefits. Race discrimination can also occur if an employer treats an employee differently because that person is married to someone of a different race. The law also prevents harassment of employees because of their race. Harassment could be from a co-worker, supervisor, or even a customer.

Is it illegal for your employer to discriminate against you because of your national origin?

Yes! Under Title VII of the Civil Rights Act of 1964 (federal law), the Pennsylvania Human Relations Act, West Virginia Human Rights Act and Ohio Civil Rights Act employers are not permitted to discriminate based on a person’s national origin in hiring, firing, promotion, layoffs, job assignments or other employment benefits. A person’s national origin can refer to a person’s ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not). National origin discrimination can also occur if an employer treats an employee differently because that person is married to someone from a different country. The law also prevents harassment of employees because of their national origin. Harassment could be from a co-worker, supervisor or even a customer.

Is it illegal for your employer to discriminate against you because of your gender?

Is it illegal for your employer to discriminate against you because of your religion?

Yes! Under Title VII of the Civil Rights Act of 1964 (federal law), the Pennsylvania Human Relations Act, West Virginia Human Rights Act and Ohio Civil Rights Act employers are not permitted to discriminate based on religion in hiring, firing, promotion, layoffs, job assignments or other employment benefits. The law also prevents harassment of employees because of their religion. Harassment could be from a co-worker, supervisor, or even a customer. Also, an employer is required to provide reasonable accommodation for an employee’s religion, for example, making an exception in the dress code to allow a person to wear a hijab.

What is pregnancy discrimination?

Pregnancy discrimination occurs when an employer refuses to hire an employee, terminates a person’s employment, or in some way denies employment benefits to an employee because of pregnancy, childbirth, or a complication from pregnancy or childbirth. Pregnant employees are protected under the Pregnancy Discrimination Act (PDA) and local laws. Some examples of pregnancy discrimination could be an employer refusing to hire a pregnant person or terminating a person’s employment because they are pregnant.

If a pregnant employee is temporarily unable to perform their job duties because of the pregnancy and employer is required to treat them the same as any other temporarily disabled employee. This according to the EEOC could mean “providing light-duty, modified tasks, alternative assignments, disability leave, or leave without pay.”

In addition, an employer must provide health insurance that covers pregnancy-related conditions on the same basis as other medical conditions and any medical leave benefits provided to other employees must also be extended to pregnant employees. Basically, employers need to treat their pregnant employees the same way they treat their non-pregnant employees with a medical condition.

A Note on Nursing Breaks:

The Patient Protection and Affordable Care Act amended the Fair Labor Standards Act “FLSA” to require employers to provide a nursing mother both reasonable break times to express breast milk after the birth of her child and a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers to express their milk.

An employer with less than 50 employees is not subject to the requirements if they would impose an undue hardship on the employer by causing significant difficulty or expense.

Timelines to Consider

If you feel that you have been discriminated against, denied equal pay, denied overtime wages or FMLA leave contact an attorney right away. Each law has very strict requirements and statute of limitations that could bar your case if not followed.

1. To file a federal discrimination lawsuit you have to work for an employer that has at least 15 employees (20 employees if you have an age-related claim). If you work for an employer with less than 15 employees you could be still covered by PA, WV, or OH law (depending on where you live). Each state has its own requirements. In PA and OH you have to work for an employer that has at least 4 employees. In WV, you have to work for an employer that has 12 employees.

2. To start a Federal law discrimination claim you must file a charge with the EEOC first. The EEOC has very strict timelines for filing a charge that differs between states. PA, OH, and WV all have a 300-day statute of limitations for filing an EEOC charge.

3. Each state has its own deadlines for filing a state law discrimination claim:

In PA, you have 180 days to file a charge with the Pennsylvania Human Rights Commission (“PHRC”) to preserve your state law claims. You must file your claim with the PHRC prior to bringing a lawsuit. The PHRC has one year of exclusive jurisdiction before you can file in state court.

WV does not require you to file an administrative charge before filing a state law discrimination lawsuit and you have two years to file the lawsuit.

OH like WV, does not require you to file a state law claim with an administrative agency first and you have six years to file a claim.

4. To file a claim under FLSA, FMLA, or the Equal Pay act you have two years from the time of the violation.

5. Once you receive a right to sue letter from the EEOC, you have 90 days to file a federal lawsuit.

Can my employer sue me to enforce a non-compete agreement?

First, what is a non-compete agreement? A non-compete agreement or other post-employment restrictive covenant is a contract between an employer and employee that restricts the employee’s ability to work for a competitor, and/or solicit employer customers, and/or solicit employer employees. Non-competes were once used to prevent executive-level employees from starting their own competing businesses and taking both the employer’s customers and employees with them. However, over the years the use of non-competes has grown to include all levels of employees including low-wage workers according to this 2019 CBS News article. According to the article “Nearly a third of businesses – 31.8% – ask all their workers to sign noncompetes, regardless of their job duties or pay, the study found.”

But I thought non-compete agreements were illegal? This depends on where you live and what choice of law your agreement specifies. Several states, California, North Dakota, Montana, and Oklahoma, and the District of Columbia outright ban employee non-competes in most situations. Other states have joined in limiting non-compete agreements including Maryland and Illinois – eliminating non-competes for low-wage workers, Hawaii – eliminating non-competes for IT workers, and New Mexico, New Hampshire, and Texas who limit non-competes for physicians. Other states have various case law restrictions.

Are non-compete agreements legal in PA? Pennsylvania has no law restricting the use of non-compete agreements. As long as the non-compete agreement is (1) “reasonable” to protect the employer’s interests and has a limited duration and geographic restrictions, and (2) is supported by “consideration” aka either the initial offer of employment or a beneficial change in the terms of employment (for example a raise and promotion) then it can be enforceable. However, the agreement is often interpreted against the employer.

If your employer has asked you to sign a non-compete agreement you should reach out to an attorney right away to make sure your rights are protected. If you have been sued by your employer for violating a non-compete agreement you should also reach out to an attorney right away to protect your rights.