Employment discrimination occurs when an employer treats an employee or job applicant unfavorably because of a protected characteristic. Federal law, primarily through Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA), prohibits discrimination in all aspects of employment: hiring, firing, pay, job assignments, promotions, training, benefits, and any other term or condition of employment.
Each type of discrimination has specific legal definitions, protected classes, employer coverage requirements, and available remedies. Understanding these distinctions is essential for evaluating a potential claim and maximizing your recovery. This guide provides the legal framework for each discrimination type, practical examples, and direct links to our calculators and document generators.
| Type | Federal Law | Employer Size | Protected Class | Key Feature |
|---|---|---|---|---|
| Race | Title VII, Section 1981 | 15+ (Title VII), Any (1981) | All races | Section 1981 has no damages cap |
| Color | Title VII | 15+ employees | All skin tones | Includes intra-race discrimination |
| National Origin | Title VII | 15+ employees | All national origins | Includes accent, citizenship status |
| Sex/Gender | Title VII, EPA, PDA | 15+ (Title VII), Any (EPA) | All sexes/genders | Includes pregnancy, harassment, LGBTQ+ |
| Religion | Title VII | 15+ employees | All religious beliefs | Requires reasonable accommodation |
| Age | ADEA | 20+ employees | Age 40 and older | No cap, liquidated damages available |
| Disability | ADA, Rehabilitation Act | 15+ (ADA), Federal (Rehab) | Qualified individuals | Interactive process required |
| Genetic Information | GINA | 15+ employees | All individuals | Prohibits genetic testing |
| Retaliation | All statutes | Varies by statute | Complainers/witnesses | #1 EEOC charge type (55.8%) |
Legal Definition
Race discrimination occurs when an employer treats an employee or applicant unfavorably because of their race or because of characteristics associated with race (such as hair texture, skin color, or certain facial features). It also includes discrimination based on marriage to or association with a person of a particular race, membership in race-based organizations, or attendance at schools associated with certain racial groups.
Protected Class
All races are protected under Title VII and Section 1981. This includes White, Black/African American, Hispanic/Latino, Asian, Native American, Native Hawaiian, Pacific Islander, and individuals of two or more races. Importantly, race discrimination claims can be brought by members of any race, not just minority groups. "Reverse discrimination" claims by White employees are equally cognizable under the law.
Examples of Race Discrimination
Available Damages
Section 1981 claims are powerful because they have no damages cap (unlike Title VII's $50,000-$300,000 cap), apply to employers of any size, have a 4-year statute of limitations, and do not require exhausting EEOC administrative remedies before filing suit. However, Section 1981 applies primarily to race discrimination (not other protected classes) and requires proof of intentional discrimination.
Legal Definition
Color discrimination occurs when an employer treats an employee or applicant unfavorably because of their skin color. While often overlapping with race discrimination, color discrimination is a distinct category that can occur between members of the same race based on skin tone. This is sometimes called "colorism" or "intra-race discrimination."
Protected Class
All individuals are protected regardless of their skin color. This includes discrimination against individuals with lighter skin tones, darker skin tones, or any shade in between. Both intra-race (same race, different skin tones) and inter-race (different races) color discrimination are prohibited.
Examples of Color Discrimination
Available Damages
Compensatory and punitive damages combined are capped based on employer size: $50,000 (15-100 employees), $100,000 (101-200), $200,000 (201-500), $300,000 (500+). Back pay, front pay, and attorney fees are NOT subject to these caps.
Legal Definition
National origin discrimination involves treating employees or applicants unfavorably because they are from a particular country or part of the world, because of their ethnicity or accent, or because they appear to be of a certain ethnic background. It also includes discrimination against individuals married to or associated with persons of a particular national origin or because of their participation in cultural practices associated with a particular national origin.
Protected Class
All national origins are protected, including American. Individuals from any country, region, or ethnic background are covered. This includes perceived national origin (being treated as if from a particular place even if not actually from there), and association with persons of a particular national origin.
Examples of National Origin Discrimination
Available Damages
Blanket English-only policies are presumptively discriminatory unless the employer can demonstrate business necessity. An employer may require English during certain work activities where necessary for safe and efficient operations, but cannot prohibit employees from speaking other languages during breaks, in personal conversations, or when not affecting job duties. The EEOC closely scrutinizes English-only rules.
Legal Definition
Sex discrimination occurs when an employer treats an employee or applicant unfavorably because of their sex, including pregnancy, childbirth, related medical conditions, sexual orientation, gender identity, and transgender status. Following the Supreme Court's 2020 decision in Bostock v. Clayton County, Title VII's prohibition on sex discrimination includes discrimination based on sexual orientation and gender identity.
Protected Class
All sexes and genders are protected: men, women, transgender individuals, non-binary individuals, and persons of any gender identity. Both men and women can bring sex discrimination claims. After Bostock, LGBTQ+ individuals are protected under Title VII's sex discrimination prohibition.
Categories of Sex Discrimination
- Disparate Treatment: Treating employees differently based on sex (e.g., only promoting men)
- Pregnancy Discrimination: Adverse treatment due to pregnancy, childbirth, or related conditions
- Sexual Harassment: Quid pro quo or hostile work environment harassment
- Pay Discrimination: Paying men and women differently for substantially equal work
- Gender Stereotyping: Discrimination based on failure to conform to gender norms
- LGBTQ+ Discrimination: Discrimination based on sexual orientation or gender identity
Examples of Sex Discrimination
Available Damages
The Equal Pay Act applies to employers of any size (no minimum employee threshold), does not require filing an EEOC charge first, has a longer statute of limitations (2 years, 3 for willful violations), and provides liquidated damages (double back pay) for willful violations. EPA claims can be combined with Title VII sex discrimination claims for maximum recovery.
Legal Definition
Religious discrimination involves treating an employee or applicant unfavorably because of their religious beliefs. The law protects not only people who belong to traditional organized religions (Christianity, Judaism, Islam, Buddhism, Hinduism, etc.) but also those who have sincerely held religious, ethical, or moral beliefs. It also protects employees who have no religious beliefs.
Protected Class
All religious beliefs (and non-belief) are protected. This includes traditional organized religions, non-traditional faiths, sincerely held moral or ethical beliefs that occupy a place in the holder's life parallel to that held by traditional religious convictions, and atheism or agnosticism. The law does not require that the belief be part of an organized religion or widely shared.
Reasonable Accommodation Requirement
Unlike most other forms of discrimination, religious discrimination includes an affirmative obligation on employers to reasonably accommodate an employee's religious practices unless doing so would cause undue hardship. Following the Supreme Court's 2023 decision in Groff v. DeJoy, "undue hardship" means more than a trivial burden; it requires showing that the accommodation would result in substantial costs or disruption to the business.
Examples of Religious Discrimination
Available Damages
The Supreme Court significantly strengthened religious accommodation rights in Groff v. DeJoy. Employers can no longer deny accommodations based on minor inconveniences or co-worker complaints. To deny a religious accommodation, the employer must now show that the accommodation would impose "substantial increased costs" in relation to the conduct of the business. This ruling makes it harder for employers to deny schedule changes, dress code exceptions, and other religious accommodations.
Legal Definition
Age discrimination occurs when an employer treats an employee or applicant age 40 or older less favorably because of their age. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination in all aspects of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, and benefits.
Protected Class
Only individuals age 40 and older are protected under the ADEA. There is no upper age limit. The ADEA protects older workers from being discriminated against in favor of younger workers, including younger workers who are also over 40. For example, replacing a 60-year-old with a 45-year-old could still be age discrimination.
Burden of Proof
Under the Supreme Court's decision in Gross v. FBL Financial Services (2009), ADEA plaintiffs must prove that age was the "but-for" cause of the adverse employment action. Unlike Title VII, there is no "mixed-motive" framework under the ADEA. This higher burden makes ADEA claims more challenging, but the available damages can be substantial.
Examples of Age Discrimination
Available Damages
The ADEA does not provide compensatory damages for emotional distress or punitive damages. However, there is NO damages cap on economic damages (back pay and front pay), and willful violations trigger liquidated damages equal to double back pay. For highly paid workers, ADEA claims can result in very substantial recoveries exceeding what would be available under capped Title VII claims.
Legal Definition
Disability discrimination occurs when an employer treats a qualified individual with a disability unfavorably because of their disability. The Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals who can perform the essential functions of the job with or without reasonable accommodation. It also requires employers to provide reasonable accommodations unless doing so would cause undue hardship.
Protected Class
The ADA protects individuals who: (1) have a physical or mental impairment that substantially limits one or more major life activities; (2) have a record of such an impairment; or (3) are regarded as having such an impairment. Major life activities include walking, seeing, hearing, breathing, learning, thinking, concentrating, communicating, and working. The ADA Amendments Act of 2008 broadly expanded the definition of disability to cover more conditions.
Interactive Process and Reasonable Accommodation
When an employee requests accommodation, the employer must engage in a good-faith "interactive process" to identify effective accommodations. Failure to engage in the interactive process is itself a violation of the ADA. Reasonable accommodations may include modified work schedules, reassignment, equipment modifications, work-from-home arrangements, leave, and removal of non-essential job functions.
Examples of Disability Discrimination
Available Damages
Many ADA cases are won or lost based on whether the employer properly engaged in the interactive process. Document every accommodation request and the employer's response. If the employer ignores your request, responds with a flat "no" without exploring alternatives, or fails to communicate, you may have a failure-to-accommodate claim even if the original accommodation was not required.
Legal Definition
Genetic information discrimination occurs when an employer treats an employee or applicant unfavorably because of genetic information. The Genetic Information Nondiscrimination Act (GINA) prohibits the use of genetic information in making employment decisions and restricts employers from requesting, requiring, or purchasing genetic information about employees or their family members.
What is Genetic Information?
Genetic information includes: information from genetic tests of the employee or their family members; family medical history (the manifestation of diseases or disorders in family members); requests for or receipt of genetic services by the employee or family members; and genetic information of a fetus carried by an employee or family member, or embryo held during assisted reproduction.
Protected Class
All individuals are protected under GINA. The law protects employees from discrimination based on their own genetic information and the genetic information of their family members (including parents, children, siblings, grandparents, and other blood relatives).
Examples of Genetic Information Discrimination
Available Damages
GINA has two separate prohibitions: (1) acquisition of genetic information, and (2) use of genetic information. Even if an employer does not use genetic information to discriminate, the mere act of requesting or requiring genetic information (except in very limited circumstances) violates GINA. Employers must take care not to acquire genetic information through wellness programs, return-to-work medical exams, or casual conversation.
Legal Definition
Retaliation occurs when an employer takes a materially adverse action against an employee because the employee engaged in protected activity. Protected activity includes filing an EEOC charge, complaining about discrimination, participating in a discrimination investigation, or opposing discriminatory practices. Retaliation is the #1 most common charge filed with the EEOC, appearing in 55.8% of all charges.
The Three Elements
- Protected Activity: Filing an EEOC charge, internal complaint, or opposing discriminatory conduct (opposition clause), OR participating in an investigation, proceeding, or hearing (participation clause)
- Adverse Action: Any action that would dissuade a reasonable worker from making or supporting a charge of discrimination (Burlington Northern standard)
- Causal Connection: The protected activity was the "but-for" cause of the adverse action (Nassar standard)
Examples of Retaliation
Available Damages
Retaliation claims are frequently easier to prove than the underlying discrimination claim because the timeline (protected activity followed by adverse action) provides strong circumstantial evidence. Many employees win on retaliation even when their underlying discrimination claim fails. Always file a retaliation claim when adverse action follows protected activity, even if you are uncertain about the underlying discrimination claim.
Disparate treatment is intentional discrimination where an employer treats an employee less favorably because of a protected characteristic. For example, refusing to hire women for certain jobs. Disparate impact occurs when a facially neutral policy disproportionately affects a protected group without business necessity. For example, a physical strength test that excludes most women and is not necessary for the job. Disparate treatment requires proving discriminatory intent; disparate impact focuses on discriminatory effects regardless of intent.
You generally have 180 calendar days from the date of the discriminatory act to file an EEOC charge. However, if your state has a Fair Employment Practices Agency (FEPA) with a work-sharing agreement with the EEOC, the deadline extends to 300 calendar days. Most states have such an agency. The deadline runs from the date of the adverse action (termination, demotion, denial of promotion, etc.). Missing the deadline can permanently bar your claim, so consult an attorney immediately if you believe you have been discriminated against.
Title VII caps combined compensatory and punitive damages based on employer size: $50,000 for employers with 15-100 employees, $100,000 for 101-200 employees, $200,000 for 201-500 employees, and $300,000 for 500+ employees. However, back pay, front pay, and attorney fees are NOT subject to these caps and can exceed the compensatory/punitive cap. ADEA claims have no damages cap. State law claims often have no caps. Section 1981 race discrimination claims have no cap. Strategic use of multiple claims can maximize recovery beyond Title VII caps.
A reasonable accommodation is any modification or adjustment to a job, the work environment, or the way things are usually done that enables a qualified individual with a disability to perform essential job functions. Examples include modified work schedules, reassignment to vacant positions, acquisition of equipment, provision of readers or interpreters, adjusted or modified examinations, making facilities accessible, job restructuring, part-time or modified work schedules, and telecommuting. The employer must provide accommodation unless it would cause undue hardship (significant difficulty or expense).
For most federal discrimination claims (Title VII, ADA, ADEA, GINA), you must first file a charge with the EEOC and receive a "Right to Sue" letter before filing a lawsuit. This is called exhausting administrative remedies. However, there are exceptions: Section 1981 race discrimination claims do not require EEOC exhaustion. Equal Pay Act claims do not require EEOC exhaustion. State law claims have their own procedural requirements. After filing an EEOC charge, you can request a Right to Sue letter after 180 days even if the EEOC has not completed its investigation.
Federal Title VII, ADA, and GINA apply only to employers with 15+ employees. The ADEA applies to employers with 20+ employees. However, several options remain: Section 1981 applies to race discrimination by any employer regardless of size. The Equal Pay Act applies to any employer. State and local laws often cover smaller employers (California FEHA covers employers with 5+ employees; some local ordinances cover all employers). Consult with an attorney to identify all applicable laws for small employer discrimination.
Yes. In Bostock v. Clayton County (2020), the Supreme Court held that Title VII's prohibition on sex discrimination includes discrimination based on sexual orientation and gender identity. An employer who fires an employee for being gay or transgender violates Title VII because the employer is treating the employee differently based on their sex. This ruling applies nationwide to all employers with 15+ employees. Many states and localities have additional LGBTQ+ protections that may cover smaller employers or provide additional remedies.
Direct evidence includes discriminatory statements by decision-makers ("we need younger workers," "women can't handle this job"). Circumstantial evidence includes: temporal proximity between protected activity and adverse action; statistical patterns showing disparate treatment; comparators (similarly situated employees outside your protected class treated better); shifting or inconsistent employer explanations; departure from normal procedures; pattern of discriminatory conduct. Most discrimination cases rely on circumstantial evidence because employers rarely admit discriminatory intent. Document everything: emails, texts, witness names, dates, and specific statements.
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