Do You Know That Not Everyone is Protected Against Discrimination?


Image courtesy of podpad /
Image courtesy of podpad /

Today, January 20th  is the federal holiday celebrating Martin Luther King’s birthday, though his actual birthday was the 15th. Everyone should know that Dr. King is known for his action in support of Civil Rights. (I am afraid that not everyone really knows, but that is another topic.) From his leadership and the action of countless others the Civil Rights Act of 1964 was passed. In HR we pay particular attention to Title VII.
Title VII protection
Most people know that it is illegal to discriminate in the workplace. In reality that is not correct. Many people, employers and employees alike, are shocked to find that they can be legally discriminated against in the workplace. We won’t talk about the ethical issues involved in workplace discrimination, but from a legal standpoint some employers may legally discriminate against any number of people
Title VII provided initially for protection on the basis of race, religion, sex, national origin, and color. These were the original “protected categories”. Age, pregnancy, disability and genetic background were added later. Some additional categories also added if an employer is a federal contractor.
Many people, however, don’t realize that the concept of “protected categories” does not apply to call companies. The law only covers employers who have 15 or more employees. This means that an employer under 15 employees can refuse to treat equally someone over the age of 40, or a woman, or a Jew/Christian/Muslim/Buddhist or someone with a disability. The law does not cover that small company and there is opportunity for discrimination without penalty if you are under 15 employees. Again, I am not discussing the ethics of this. Additionally, since most people are not aware of the provisions of the law a company could suffer in a public relations manner if they engage in blatant discrimination.
Race is a separate issue
You will notice I did not include race in my list of areas that a small employer could discriminate against. That was for good reason. There is a law that most employers don’t know about. In fact many HR people don’t know about it. Lawyers do know about it. It is the Civil Rights Act of 1866, section 1981. This law passed just after the War Between the States and gave, initially, blacks the same rights as white men, including citizenship. The other rights included “… the right to sue or be sued in court, to give evidence in a lawsuit, and to purchase property. It also confers the right to make and enforce contracts, which courts have found prohibits racial discrimination in the employment relationship.” Per Nolo.
While initially the law only applied to African Americans in later years it has become to be interpreted to race in general and thus afforded protection to every race. There is no company size limit associated with Section 1981 and thus applies to all employees and employers. No agency enforces this law and thus there is no one to complain to but a lawsuit can be filed on federal court. Generally when a company is sued under Title VII the lawsuit also included Section 1981. Conceivably however, it could be the sole purpose of the lawsuit. Thus racial discrimination is never a good idea even beyond the ethics of the practice.
In reality my headline was not entirely correct. Everyone is protected against racial discrimination regardless of company size, but the rest of those protected categories don’t kick in until company size reaches 15.

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