Employment Discrimination and Workplace Harassment

Employment discrimination statutes vary widely across jurisdictions but may protect individuals based on their membership in the following classes: race, religion, sex, gender, national origin, disability, age, military status, ancestry, marital status, physical appearance, genetic status, family responsibilities, gender identity, and sexual orientation.

Some of these protections are evolving. As an example, Title VII of the Civil Rights Act of 1964 explicitly covers race, color, religion, sex, and national origin — but it has been interpreted to prohibit discrimination against employees because of their ancestry, culture, and linguistic characteristics, as well as sexual orientation and gender identity.

Among the most important are:

• Title VII of the Civil Rights Act of 1964
• the Equal Pay Act
• The Americans with Disabilities Act, or ADA
• The Age Discrimination in Employment Act, or ADEA
• The Uniformed Services Employment and Reemployment Rights Act, or USERRA

Most employment discrimination statutes prohibit failing to hire or discharging any individual, or otherwise discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s membership in a protected class.

Federal law also protects employees against retaliation for filing a charge of discrimination or participating in an investigation of discriminatory practices.

If you have suffered illegal discrimination at work, you may be entitled to receive:

• Reinstatement
• Back pay for lost wages
• Front pay for future lost wages
• Compensatory damages
• Punitive damages
• Litigation costs and attorney fees

Not explicitly. However, recent U.S. Supreme Court and appellate court decisions have broadened the scope of Title VII’s protections by holding that Title VII prohibits discrimination against employees simply because their behavior or appearance does not conform to traditional gender or sex stereotypes. In many instances, LGBT employees are able to bring Title VII claims in federal court if they experience workplace discrimination on the basis of gender. In addition, many states have enacted laws prohibiting employment discrimination on the basis of sexual orientation or gender identity.

To learn more about our firm and the types of discrimination and harassment prohibited under the law, contact us.

Including severance provisions in an employment agreement can be an easy way for both the employer and the employee to obtain the severance package that they desire should the employment relationship end while the parties are on good terms with each other. Accordingly, the severance agreement should be negotiated before agreeing into entering the employment relationship rather than at the end.

To prevent employees from taking their talents and employers’ trade secrets to competitors, a growing number of employers are requiring employees to sign non-compete agreements.  A broad-form agreement that is not narrowly tailored to serve the employer’s business interest is likely unenforceable. In addition, an employer’s effort to enforce an invalid non-compete can invite counterclaims and in certain extreme cases, sanctions.

The enforceability of non-compete agreements differs from state to state.  The analysis generally focuses primarily on the following factors:

• The temporal scope of the non-compete;
• The geographic scope of the non-compete; and
• The clarity and unambiguous nature of the non-compete.

In other words, an employer must narrowly tailor the time, function, and geographic restrictions in a non-compete agreement to protect nothing more than its legitimate business interest.   An employer should not be able to enforce a restrictive covenant that hinders an employee’s ability to earn a living, including a non-compete that:

• Applies for an unlimited time;
• Extends the restrictions to areas where the employer once did business;
• Extends the restrictions to locations where the employer merely has intentions of doing business; or
• Extends the geographic reach of the agreement to an area that is not coterminous with that of the business at the time of the agreement.

An employer seeking to enforce a non-compete must show that the restrictive covenant is supported by consideration, which exists when someone gives up a legal right in return for obtaining a tangible benefit.  If an employer requests that its employees sign a non-compete agreement, the employees are in a good position to (and should) negotiate additional compensation prior to signing the agreement, as the employees’ ability to work will be restricted.