The Protected Categories

The Protected Categories

At a Glance
Audience:	Supervisors
Length:	30 minutes
More Info:	SHP Briefing Recent Legal Cases
Course Demo:	Register Here

• Racial harassment.
• Religious expression and First Amendment rights.
• National origin and ethnicity issues, including post-9/11 concerns.
• Pregnancy and infertility as protected conditions.
• Disability-related harassment and discrimination.
• Managing difficult employees within the parameters of the employment law.
• Behavior that might violate an organization's harassment or EEO policy but is not literally unlawful.
• Comprehensive, relevant glossary of terms.

Many employees find themselves in situations that leave them feeling harassed. But unlawful harassment is harassment that is related to one or more of the protected categories. The protected categories are the foundation of employment law. Federal and state legislatures have determined that individuals in these categories should be given special protection. The protected categories were first specified by Congress in 1964 in Title VII (the Civil Rights Act of 1964).

High-quality compliance training regarding the protected categories can go a long way toward protecting your organization against workplace discrimination, solidifying corporate compliance and enhancing culture. Many of the concepts and lessons in our Sexual Harassment Prevention course, including the Welcomeness Standard and the concept of the Reasonable Person, also apply equally to all of the protected categories.

Recent Legal Cases

Arbaugh v. Y & H Corp., 126 S. Ct. 1235 (USSC 2006) – The U.S. Supreme Court ruled that that the definition of an “employer” under Title VII (having fifteen or more employees) is an element of a plaintiff’s Title VII claim and is not for deciding whether a court has jurisdiction to hear the claim in the first instance.  Therefore, employers with fewer than 15 employees may be sued under Title VII. Click here for the complete case.

Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 1671(USSC 2006) – The U.S. Supreme Court expanded the reach of retaliation claims under Title VII.  It ruled that the actions and harms that are “adverse actions” do not need to directly impact the employee's terms and conditions of employment.  They only need to be “materially adverse” to the employee, which means they have the effect of discouraging a "reasonable employee" from complaining of discrimination. Click here for the complete case.

Jespersen v. Harrah's Operating Co., 444 F3d 1104 (9th Cir. 2006) – The Ninth Circuit Court of Appeals ruled the employer did discriminate on the basis of gender when it fired a female for refusing to comply with dress and grooming policies requiring women to wear make-up at work.  Compliance with the employer’s dress and grooming policy did not cause burdens to fall unequally on women or men. Click here for the complete case.

Smith v. City of Jackson, 125 S. Ct. 1536 (USSC 2005) – The United States Supreme Court ruled that workers who are age 40 and over may use a “disparate impact” theory to prove age discrimination under the Age Discrimination in Employment Act (ADEA).  Plaintiffs do not need to show proof of intent to discriminate where an employer has a neutral business practice with an adverse impact on people in the protected age category. Click here for the complete case.

Dark v. Curry County,  451 F.3d 1078 (9th Cir 2006) – The Ninth Circuit Court of Appeals ruled that under the Americans with Disabilities Act (ADA), an employer must consider whether an employee can “perform the essential functions of a reassignment position.”  Even if they cannot perform the essential functions of the current position, ADA compliance requires consideration of reassignment to positions that may come open in a “reasonable period.”  The “direct threat” defense is not relevant until reasonable accommodations are fully explored. Click here for the complete case.

Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34 (2d Dist. 2006) – The California Fair Employment and Housing Act (FEHA) requires employers to provide reasonable accommodations for employees who are “regarded as” disabled, even if they are not actually disabled.  The interactive process must be used.  The cases under the Americans with Disabilities Act (ADA) are split on this point. Click here for the complete case.

Ash v. Tyson Foods, Inc., 126 S. Ct. 1195 (USSC 2006) – The United States Supreme Court upheld a jury verdict against the employer in a race discrimination case where the manager used the word “boy” to refer to the African-American plaintiffs.  The Court ruled that “boy” can be a racial epithet even without other words such as “black” or “white” to modify it.  The meaning of “boy” may depend on “factors including inflection, tone of voice, local custom and historical usage.” Click here for the complete case.

Meacham v. Knolls Atomic Power Laboratory, Nos. 02-7378-cv(L) and 02-7474-cv(XAP) (2d Cir. 8/14/06) – Plaintiffs, age 40 and older, were laid off in a reduction in force.  Under the Age Discrimination in Employment Act (ADEA), they claimed the lay off selection criteria disproportionately impacted older workers.  Relying on new case law from the United States Supreme Court, the Court ruled for the employer.  The plaintiffs did not show that the employer’s business justification for the selection criteria was unreasonable, although they were required to do so. Click here for the complete case.

 

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