General Practice, Solo & Small Firm DivisionMagazine

by Florencio "Larry" Ramirez

Florencio "Larry" Ramirez is a small firm practitioner in Las Cruces, New Mexico. He is the incoming chair of the ABA General Practice, Solo and Small Firm Division.

Various federal and state law provisions govern employment practices and lawyers need to be familiar with all of them. Whether the discrimination is based on sex, religion, age, pregnancy, immigration status, disability, race, or another protected class, lawyers can turn to a variety of acts to seek relief for their clients.

Title VII

Title VII of the Civil Rights Act of 19641 prohibits employers engaged in an industry affecting commerce and employing 15 or more persons from discriminating in employment on the basis of race, color, religion, sex, or national origin.

Title VII has been construed to prohibit, inter alia, facially neutral employment policies that have a disparate impact on a protected class.2

A drug, alcohol, AIDS, or psychological test could be challenged under Title VII if it could be shown to have a disproportionate adverse impact on a protected class of employees.3 Furthermore, if not carefully administered, any testing program might be construed to be a pretext for discrimination, and thus violative of Title VII.

Prohibited acts. Under Title VII, it is illegal to subject employees to demands for sexual favors in return for employment benefits ("quid pro quo") or to oppressive treatment that results in a hostile employment atmosphere ("hostile environment").

Title VII also prohibits religious discrimination in employment. Title VII defines religion to include all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that it is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.4

In most cases, whether a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Equal Employment Opportunity Commission (EEOC) defines religious practices as moral or ethical beliefs concerning what is right and wrong that are sincerely held with the strength of traditional religious views.

Title VII prohibits an employer from failing or refusing to hire or from discharging any individual or otherwise to discriminating against any individual with respect to her compensation, terms, conditions, or privileges of employment, because of the individual's religion. Title VII also prohibits the employer from limiting, segregating, or classifying its employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of the individual's religion.5

Reasonable accommodations. The Supreme Court in Transworld Airlines, Inc. v. Hardison6 ruled that the employer's duty is very narrowly drawn. Any accommodation that imposes more than a de minimis cost on the employer is deemed an undue hardship. Examples include higher wages, lost efficiency, and discriminatory imposition on fellow employees.

The obligation to accommodate does not arise until an employee or prospective employee notifies the employer of his need for religious accommodation. After such notification, the employer should make an affirmative attempt to accommodate. If the accommodation sought cannot be provided, the employer should document the reasons, specifying the undue hardship.

Such documentation will assist in the defense of any subsequent Title VII action and will ensure that the issues are carefully considered in the first place. Examples of reasonable accommodation include: voluntary substitutions and swaps, flexible scheduling, lateral transfers, and job assignments.

Religious institutions and organizations are exempt from compliance under certain circumstances and conditions.7

Employer liability. The Supreme Court decision in Meritor Savings Bank v. Vinson8 confirmed that an employee has a right to a workplace free of abusive sexual harassment. The Court also suggested that in the absence of a stated policy against sexual harassment, an employer can be held liable for the actions of its employees, even without specific notice of such conduct. The Tenth Circuit has ruled that if the hostile environment is the creation of the supervisor, the employer is liable if that supervisor appeared to act or speak on behalf of the employer, and the employee believed that the supervisor was speaking for the employer.9 Employer liability is imposed, of course, when the employer has actual or constructive knowledge of the violation and fails to take corrective action.

Age Discrimination

The Age Discrimination in Employment Act of 1967 (ADEA)10 prohibits age discrimination in employment. The ADEA applies to employers engaged in an industry affecting commerce and having 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. The ADEA prohibits discrimination only against individuals 40 years of age or older,11 and on the basis of age between two persons within the protected group.

Exemptions. The ADEA exempts employees who, for two years preceding retirement, have been bona fide executives or employees in high policymaking positions and who, upon retirement, will be entitled immediately to annual retirement benefits of at least $44,000. Such employees may be mandatorily retired at age 65. Tenured instructors at institutions of higher learning may be mandatorily retired at age 70.

Fringe benefits. Employers must provide the same benefits to those employees and their spouses age 65 or older as they provide for those under 65 years of age. The ADEA prohibits employers from failing to hire any person age 40 or over because of the provisions of any employee benefit plan.

Defenses. The Bona Fide Occupational Qualification (BFOQ) defense in age discrimination cases generally involves public safety issues. In Western Airlines v. Criswall,12 the Supreme Court adopted a two-step test to validate the age BFOQ:

  1. An employer must determine whether the age-related job qualification is reasonably necessary to enhance the business. The greater the safety factor, the more stringent the job qualification may be.
  2. If the age-related job qualification is reasonably necessary, the employer must establish that it has a factual basis for believing that most persons over the maximum age would be unable to safely and efficiently perform the duties of the job. The BFOQ defense is not available if an employer can test employees on an individualized basis. The more serious the safety claims, the more likely an employer will be able to sustain an age-related BFOQ.

Remedies. Successful claimants may be entitled to back pay, reinstatement, or front pay where reinstatement is inappropriate. Unlike Title VII, liquidated damages in an amount equal to back pay amounts may be recovered where the employee can prove that violations of the Act were willful (if the employer knew of or showed reckless disregard for the employee's rights under the ADEA).

The Immigration Reform Control Act

The Immigration Reform and Control Act of 1986 (IRCA) prohibits unfair immigration-related employment practices. Employers may not discriminate against employees or potential employees on the basis of their national origin or citizenship status. IRCA applies to all employers with more than 20 employees.

One exception: IRCA does not apply to national origin-based employment discrimination covered by Title VII.

The 1990 anti-discrimination amendments to IRCA prohibit discrimination on the basis of citizenship status or national origin by employers of four or more workers. The additions to IRCA include: an increase in monetary penalties, an extension of the law to cover seasonal workers, and two new offenses for which an employer can be held liable.

New offenses include retaliation against those who bring charges and document abuse. Document abuse occurs when employers request that applicants provide "more or different documents" or refuse to honor documents that on their face appear to be genuine during the employment verification process.

The IRCA amendments also provide that an employer "who uses a contract" to obtain workers may be held liable for using aliens who lack authorization to work in the United States, even if the undocumented worker is not an employee. The rule intends to close a "loophole" that would encourage employers to use contract workers without inquiring into whether they were legally authorized to work in the United States. Employers on "notice of certain facts and circumstances which should lead a person, through the exercise of reasonable care" to know of an alien's unauthorized status, may be held liable under IRCA.

Defenses. If the employer accepts documents that reasonably appear on their face to be genuine and are sufficient for purposes of IRCA § 274A(b), and complies with all other requirements of the employment verification system, then the employer can raise a good faith defense to a charge of knowingly hiring an unauthorized alien in violation of IRCA. The 1990 amendments to IRCA will impose a fine on anyone that is involved with document abuse. The civil penalty will be not less than $100 and not more than $1,000 per violation.

Employment verification forms must be retained by employers for three years and must be made available for inspection by the special counsel's office and by representatives of the INS and the DOL.

Alcohol, Drug, AIDS, and Psychological Testing

Most private employers remain free to require drug, alcohol, and psychological tests of their employees, subject only to the state and federal constitutional limitations imposed upon public employers and the prohibitions of the federal Employer Polygraph Protection Act (EPPA) imposed upon private employers. However, some states impose limitations upon the ability of employers to conduct AIDS testing.13 Furthermore; some employers may be required to perform drug and alcohol testing by the provisions of recently promulgated federal Department of Transportation regulations.14

Despite the lack of formal legal restrictions on alcohol, drug, and some types of psychological testing of employees, employers should exercise a great deal of caution in implementing any type of employee testing program. A number of state and federal statutes and common-law tort theories may be invoked to impose liability on employers who seek to test their employees.

Employers frequently are found liable under a number of theories relating to the manner in which tests are conducted. Lawyers should be aware of the potential theories for limiting testing programs or imposing liability for testing programs or their administration, as well as the applicability of these theories of liability to each type of testing.

Constitutional limitations for public employers. Federal, state, county, and municipal government employers face significant state and federal constitutional limitations on their ability to impose testing requirements on their employees. Furthermore, public employees who suffer adverse job action as a result of either test results or refusal to submit to tests may bring actions for damages based on alleged violations of state or federal constitutional rights. Such claims may be asserted based on employees' constitutional right to privacy, right to be free from unreasonable search and seizure, and rights to due process and equal protection.15

In assessing the constitutionality of testing programs, courts generally balance the importance of the governmental interest asserted against the invasiveness of the testing procedure, taking into account the manner in which the actual test at issue is administered. Thus, random or unannounced testing may be constitutionally permissible for certain classes of employees whose job duties are related to public safety, but impermissible for other employees. For example, police officers may be subject to random testing, while clerical employees may only be tested upon reasonable suspicion. This rationale may also apply to AIDS or psychological testing.

Vocational Rehabilitation Act of 1973. As amended, 29 U.S.C. §§ 701-796 and the Vocational Rehabilitation Act (VRA) §§ 501 and 504 prohibit discrimination against handicapped persons by federal employers and organizations that receive federal financial assistance.16 Furthermore, VRA § 503 requires federal contractors and subcontractors to take affirmative action to hire handicapped individuals.17

The VRA's definition of handicaps includes individuals with contagious diseases, as long as the disease does not pose a threat to the health and safety of other employees, and as long as the individual is able to perform her job duties. VRA §§ 503 and 504 does not apply to individuals who are alcohol and drug abusers if the individual's current use of alcohol and drugs prevents the individual from performing her job duties or if the individual's current alcohol and drug abuse would be a direct threat to property or safety. The act thus implicitly may apply to alcohol- or drug-addicted individuals who do not fall within the above exception.

Thus, although the VRA does not prohibit alcohol, drug, or AIDS testing, it might prohibit adverse job actions based on the results of such tests, unless the AIDS infection, drug abuse, or alcohol abuse poses a direct threat to property or safety. An AIDS-infected or alcohol- or drug-addicted employee whose medical condition does not pose such a threat would be protected, and covered employers might be required by the VRA to make reasonable accommodations for such employees.

Discrimination issues. The Civil Rights Restoration Act of 1988 clarifies that AIDS is a handicap under the Vocational Rehabilitation Act of 1973. Furthermore, it is likely that asymptomatic AIDS carriers are protected under the act as individuals with "perceived" handicaps. Thus, unless the AIDS-infected employee poses a threat to the health and safety of others, or is too ill to satisfactorily perform her job, she will be protected under the Rehabilitation Act. Because AIDS is not spread by casual contact, rarely will an AIDS-infected person pose a threat to the health and safety of others. As a practical matter, therefore, AIDS-infected individuals will be protected by the Rehabilitation Act until they are too ill to perform their jobs.

Finally, Title VII may provide some protection to AIDS patients and asymptomatic AIDS carriers under a disparate impact analysis. Because a disproportionate number of AIDS patients and AIDS carriers are members of minority groups, an individual may be able to challenge AIDS testing or AIDS-related job criteria under a Title VII disparate impact theory.

Psychological Tests

The most commonly used psychological tests are "lie detectors," including polygraph and psychological stress tests and "paper and pencil" honesty tests. Of the two types of tests, only the use of "lie detector" tests is regulated by statute.

"Lie detector" tests. The Employee Polygraph Protection Act18 (EPPA) bans the use of "lie detector" tests, including polygraphs, deceptographs, voice stress analyzers, psychological stress evaluators, or other similar devices by most private employers. The EPPA exempts federal, state, and local governments, and political subdivisions of state or local governments. Additionally, the EPPA contains certain exemptions for employees in certain defense and national security jobs, and exemptions that permit private employers to administer polygraph tests only (not other types of "lie detector" tests) in certain extremely limited circumstances.

Even when the use of polygraphs is allowed, the EPPA requires the employer and polygrapher to strictly follow elaborate procedures. Unless an exception applies, employers are not permitted to use lie detector test results in employment decisions, nor can they discipline or retaliate against employees who refuse to take a lie detector test.

Pencil and paper tests. Currently, there are no federal laws or regulations governing the use of such tests in the employment law context. The employer who uses such tests, however, may be subject to tort liability for invasion of privacy or intentional infliction of emotional distress, if the questions asked are overly intrusive or if they are unrelated to performance of the job in question. Furthermore, the employer may be liable under Title VII if it can be shown that such tests have a disparate impact on a class protected by these statutes or if such tests are used as a pretext for discrimination.

The EPPA prohibits most private employers from requiring employees to submit to lie detector tests as a condition of continued employment. It also prohibits an employer from requiring employees to take the test, from obtaining or using the results of a test, from disciplining an employee based upon the results of the test, and from retaliating against an employee who refuses to take the test.

The EPPA does permit an employer to request an employee to take a polygraph test if the test is given in conjunction with an "ongoing investigation" involving economic loss or injury to the business. However, it describes-in great detail-the circumstances under which the test may be given and how it is to be administered.

The regulations specify which lie detector tests may not be given.19 Lie detector tests are defined as including polygraphs, deceptographs, voice stress analyzers, psychological stress evaluators, or other mechanical or electrical devices that render an opinion regarding the honesty or dishonesty of an individual.20

In giving a polygraph test pursuant to the ongoing investigation exemption, an employer must adhere to the following:

  • The employee to be tested must have had access to the property subject to the ongoing investigation.
  • The employer must have a reasonable suspicion that the employee was involved in the incident under investigation. In this case, "reasonable suspicion" means more than mere access or opportunity. There must be some articulated basis leading to the belief that the particular employee was involved or responsible for the loss.
  • The employer must execute a statement and give the statement to the employee before the test. The statement must: (1) specifically describe the incident or activity that is the basis for the investigation; (2) be signed by an individual authorized to legally bind the employer; (3) be retained by the employer for three years; and (4) contain at least a specific identification of the economic loss suffered by the employer as a result of the incident being investigated, a statement indicating that the employee had access to the property that is the subject to the ongoing investigation, and a statement describing the basis for the employer's reasonable suspicion that the employee was involved with the incident under investigation.21 The statement must be given to the employee at least 48 hours before the examination.22

In addition to these requirements, the EPPA provides that very specific procedures must be followed to qualify for the ongoing investigation exemption.

The exemption for ongoing investigations does not apply if the employer discharges, disciplines, denies a promotion, or otherwise discriminates in any manner against a current employee based upon the results of the test or based upon the employee's refusal to take the test. However, the employer may take any one of these actions as long as there is additional supporting evidence and the employer complies with the "rights of examinee" part of the EPPA.23

"Additional supporting evidence" means:

  1. Evidence indicating that the employee had access to the missing property and evidence leading to the employer's reasonable suspicion that the employee was involved in the incident under investigation, or
  2. Admissions or statements made by an employee before, during, or after the examination.24

The EPPA and accompanying regulations set forth very specific and detailed requirements concerning test administration. The requirements, which are lengthy, govern employee's rights during and after the test, and place limits on the type of questions permitted.

Pregnancy Discrimination Act and Leaves of Absence

The law with regard to leaves of absence is essentially established by state statutes. Sixteen states have enacted statutes regarding parental leave for childbirth, adoption, or caring for sick children. These require employers either to provide an unpaid leave of absence or allow employees to use accrued sick leave.

Thirteen states require employers to provide their female employees with a leave of absence for childbirth. Nine of these states require that employers provide leave to male employees as well. Six states require employers to allow employees time off to care for sick children. Four of these states also require employers to allow employees to take leave to care for a sick parent or spouse.

The states with some sort of mandatory provisions for leaves of absence include California, Colorado, Connecticut, Hawaii, Iowa, Kansas, Kentucky, Maine, Massachusetts, Minnesota, Montana, New Hampshire, New Jersey, New York, Ohio, Oregon, Puerto Rico, Rhode Island, Tennessee, Vermont, Washington, and Wisconsin.

Perhaps the most significant piece of federal legislation in this area is the Pregnancy Discrimination Act (PDA), which is part of Title VII of the Civil Rights Act of 1964. The PDA prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. The PDA requires that pregnancy be treated the same as any temporary disability by the employer.

In other words, if the employer has a favorable policy regarding temporary disabilities, a pregnant employee will find that she is entitled to the same rights and privileges that are extended to other temporarily disabled employees. However, if the employer has an unfavorable policy toward temporary disabilities, a pregnant employee is not entitled to any privileges not extended to other employees who are temporarily disabled, except where special rights are created by state statute.

The Family Medical Leave Act

The Family Medical Leave Act25 (FMLA) applies to all employers in an industry affecting commerce who employ 50 or more employees for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar year. The FMLA also applies to a "public agency" as defined in Title 29 § 203(x).

In order to qualify as an eligible employee, an individual must have been employed for at least 12 months and have performed at least 1,250 hours of service for that employer.

The FMLA allows up to 12 workweeks of leave during any 12-month period for one or more of the following reasons:

1. Because of the birth of a son or daughter of the employee and in order to care for the baby.

2. Because of the placement of a son or daughter with the employee for adoption or foster care.

3. In order to care for the spouse, son, daughter, or parent of the employee, if the person has a serious health condition.

4. Because of a serious health condition that makes the employee unable to perform the functions of her position.

The FMLA does not require that all 12 weeks be paid leave. It specifically provides that if an employer provides paid leave for fewer than 12 workweeks, the additional weeks of leave necessary to attain the 12 workweeks of leave required may be provided without compensation.26

In the event that the need for leave is "foreseeable," the FMLA requires that the employee give up to 30 days' notice in some instances and that the employee make reasonable efforts to avoid undue disruptions to the employer's operations. In addition, the employer may require "certification" by the health care provider of the eligible employee or of the son, daughter, spouse, or parent that the leave is necessary. Under certain circumstances, the employer may also request a "second opinion," and even a "third opinion" as to the necessity of the leave.27

The FMLA prohibits an employer from interfering with, restraining, or denying the exercise of or the attempt to exercise any rights provided by the act. The FMLA specifically prohibits discharge or any other form of discrimination against any individual who exercises his rights under the act.28 In addition, any eligible employee may recover damages equal to any wages, salary, employment benefits, or other compensation denied or lost. In the event that wages, salary, employment benefits, or other compensation have not been denied or lost by the employee, the employee may recover actual monetary losses up to an amount equal to 12 weeks of wages or salary.

The FMLA also permits the recovery of pre-judgment interest, and the recovery of attorney fees and costs, including expert witness fees and equitable relief as may be appropriate.29

Finally, the FMLA permits the employer a defense of "good faith." If the employer proves to the satisfaction of the court that the violation was in "good faith" because the employer had reasonable grounds to believe its violation was justified, the court, in its discretion, may reduce the amount of damages awarded.30 CL


  1. 42 U.S.C. § 2000e (1990).
  2. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
  3. See Chaney v. Southern Railway Co., 847 F.2d 718 (11th Cir. 1988); but cf. New York City Transit Authority v. Beazer, 440 U.S. 568 (1979).
  4. 42 U.S.C. § 2000e(j) (1994).
  5. 42 U.S.C. § 2000e-2(a) (1994).
  6. 432 U.S. 63 (1977).
  7. 42 U.S.C. § 2000e(2) (1990).
  8. 477 U.S. 57,106 5. Ct. 2399, 91 L.Ed. 2d 49 (1986).
  9. Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987).
  10. 29 U.S.C. § 621 (1967).
  11. 29 U.S.C. § 631(A) (1984).
  12. 472 U.S. 400 (1985).
  13. For example, see the New Mexico Human Rights Act § 28-1-1, N.M.S.A. 1978 Comp.
  14. See 53 Fed. Reg. 47002-47177, 11/21/88.
  15. See Copeland v. Philadelphia Police Department, 840 F.2d 1139 (3d Cir. 1988); Everett v. Nagner, 833 F.2d 1507 (11th Cir. 1987); Rushton v. Nebraska Pub. Power Dist., 653 F.Supp. 1510 (D. Neb. 1987), aff'd 844 F.2d 562 (8th Cir. 1988).
  16. 29 U.S.C. §§ 791, 794 (1995).
  17. 29 U.S.C. § 793 (1992).
  18. 29 U.S.C. § 2001 (1988).
  19. 29 C.F.R. § 801.12 (1994).
  20. 29 U.S.C. §§ 2002(3), 2002(4) (1988).
  21. 29 U.S.C. § 2007(d) (1988).
  22. 29 C.F.R. § 810.12(g)(2) (1987).
  23. 29 U.S.C. § 208(a) (1974).
  24. 29 C.F.R. § 801.20(b) (1997).
  25. 29 U.S.C. § 2611 (1993).
  26. 29 U.S.C. §§ 2612(c), 2612(d)(1) (1993).
  27. 29 U.S.C. § 2613 (1993).
  28. 29 U.S.C. § 2615 (1993).
  29. 29 U.S.C. § 2617 (1993).
  30. Id.


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