Discrimination & harassment
United States
Federal law generally protects employees from discrimination, harassment or retaliation based on race, color, religion, sex (including transgender identities and sexual orientation), national origin – Title VII of the Civil Rights Act (Title VII), age (40 and over) – Age Discrimination in Employment Act (ADEA), disability – Americans with Disabilities Act (ADA) and genetic information – Genetic Information Nondiscrimination Act (GINA). State and local protected categories vary and are often broader (eg, creed, marital status, domestic partnership status, military status, domestic violence victim status, arrest record, conviction record, alienage, citizenship status, unemployment status, political beliefs and party affiliation). In recent years, various states and localities enacted new protections related to pregnancy, breastfeeding, disabilities, and physical characteristics historically associated with race (eg, hair texture and hairstyles).
In June 2020, the US Supreme Court held in Bostock v. Clayton County, Georgia that an employer who fires an individual merely for being gay or transgender violates Title VII’s ban on employment discrimination based on sex. In the wake of the Court’s decision, states continue to amend discrimination laws to include gender identity, gender expression, and sexual orientation as protected classes.
States and localities continue to take the lead on legislation addressing workplace discrimination, harassment and retaliation in the wake of the #MeToo movement, strengthening protections for women and against sexual and gender harassment. For example, state or local laws may:
- Adopt a lower standard for proving harassment
- Mandate sexual harassment training
- Expand the scope of existing laws to cover smaller employers or non-employees such as interns, independent contractors and freelancers
- Extend the time for an employee to file an administrative complaint or lawsuit
- Require reporting of adverse judgments and administrative rulings
- Limit or prohibit nondisclosure, non-disparagement or no-rehire provisions in certain settlements or employment agreements
- Allow for voidable “golden parachute” provisions for management employees or
- Limit or ban the use of mandatory arbitration for certain claims, although some of these laws are being challenged.
In particular, employers are seeing more laws restricting the use of arbitration agreements and non-disclosure agreements for harassment and discrimination claims. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act took effect in 2022, and President Biden signed the Speak Out Act limiting the enforceability of pre-dispute nondisclosure and nondisparagement clauses for sexual assault and sexual harassment. Various states, including California, Maine, Oregon and Washington, passed similar laws limiting the use of nondisclosure provisions.
States and localities also continue to enact laws to address equal pay issues. For example, laws may ban salary history inquiries, prohibit retaliation against an employee for discussing wages or compensation with another employee, require pay data reporting or mandate certain job posting and compensation disclosures. In 2022, various states and localities (eg, California, New York City, New York, Washington) adopted salary posting and/or reporting requirements.