Is that legal? How employment law applies in the workplace – Mary T. O’Sullivan

By Mary T. O’Sullivan, MSOL, contributing writer, business leadership

“The point isn’t to get people to accept that they have biases, but to get them to see [for themselves] that those biases have negative consequences for others.” – Theresa McHenry (GM HR Microsoft)

Were you fired because of your national origin?  Did you fail to get a promotion or another position due to your age? If you’ve answered yes to any of these questions, your employer could be in violation of federal law, even state laws. You could have a legitimate case against them. Employers often walk the line between what is legal and what is not, and sometimes they cross that line. But you may not be aware of these violations because the employer has been acting in this way ever since you began working there, and most other employees just go about their business, heads down, noses to the grindstone. HR fears management and even if HR believes you, they feel unempowered to act. Fret as they may, management has been ignoring HR and all their admonitions as well. People fear speaking up and voicing their complaints.

Read the details of case law regarding such events, and the shock value sinks in. Turning back to June of 2011, when a “Disparate Treatment Claim” was brought against a major employer. Here are the circumstances: An Iranian employee was hired as a “Senior Multi Disciplined Engineer” in 2002. As a condition of employment, the employee was required to obtain a secret clearance. His interim clearance was rejected, but he did not lose his job, pending a final decision. While awaiting the final decision, he transferred to another position, which did not require obtaining a secret clearance.

He continued to apply and seek promotion opportunities and was denied each time. However, other personnel were placed in those positions, and the jobs did not go unfilled. Because the jobs were assigned to other employees, even though he met all the qualifications, the employee had a basis for a complaint. Eventually, after many months of waiting, the issuing agency denied the employee’s application for a secret clearance, forcing the company to decide what this employee’s future would be. He received good performance reviews as well as an achievement award. Unfortunately, the engineering manager decided that the Iranian employee should be terminated.

A dispute of the timing of his claim was questioned under California law. According to court documents, “the key question is generally understood to be ‘whether the employer’s conduct occurring outside the limitations period is sufficiently linked to unlawful conduct within the limitations period that the employer ought to be held liable for all of it.’”. When the details of this complaint become clear, it’s obvious that fellow employees and his supervisor acted in a  prejudicial manner against him on the job. Negative comments about his national origin were made within earshot and after receiving good performance reviews soon thereafter, the performance review results declined. However, when his case went to the District Court, the court sided with the company. On appeal, the lower court’s decision was reversed.

The appeals court ruled that: “Here, the record shows that two non-Iranian engineers were able to retain their positions for over four years after having their clearances revoked. [the company’s] failure to apply its purported security clearance requirement in an evenhanded manner gives rise to an inference that its requirement is pretext for discrimination. Accordingly, the judgment of the district court is REVERSED and REMANDED.” Whether he returned to work or not is unknown. But it took almost seven years for his case to come to a conclusion, and no doubt drained him physically and emotionally. Moreover, he knew he was right and fought in the courts until the case won. He did his due diligence and investigations and uncovered the facts that brought him justice.

Another fascinating claim was recently brought to the federal courts, this time regarding age discrimination. The company’s job postings were clearly discriminatory, and whoever wrote them should have been fired for negligence. The wording left the company very exposed to discrimination claims. According to court documents, the company used “targeted phrases” such as “new college graduate,” “recent graduate,” or “new graduate” in many position titles and/or job descriptions. Additionally, “other positions have required that applicants with a college or graduate degree have less than 12 or 24 months of work experience or have graduated recently within the last year or two.” 

The plaintiff was a 67-year-old man, one of many other older workers who were adversely impacted by the company’s adverse actions. To make matters worse, the company’s head of Global Talent Acquisition stated that the company’s goal was to attract roughly 25% of the workforce as younger workers. In a 2019 Equal Employment Opportunity Commission (EEOC) found the advertising to be discriminatory, and in violation of The Age Discrimination in Employment Act (ADEA), the Massachusetts Fair Employment Practices Act, and the Virginia Human Rights Act, and sued on behalf of older workers who were denied or discouraged from posting on job opportunities going back to 2018. Even after the EEOC ruled against them, the company continued to use discriminatory language in its job postings.

However, in June 2024, the American Association of Retired Persons (AARP) joined the class action lawsuit on behalf of all older workers discriminated against. Because Americans are living and working longer today, companies are not entitled to discourage older workers for applying for jobs they are qualified to perform. According to the law firm representing AARP and the others in the class action, Fortune 500 companies should know better than to exclude hardworking older Americans from jobs by targeting ‘recent college graduates’ in hiring posts”. He went on to say, “The EEOC has long held that this type of language discourages qualified older workers from applying for jobs and may violate the ADEA.” 

It’s up to the individual employee to recognize discriminatory behavior in the workplace. The Civil Rights Act of 1964 and its amendments, was enacted to protect the rights of all American workers. Employees shouldn’t be shy about raising issues with the employers or if necessary, filing complaints. If HR doesn’t investigate, consult  legal counsel or the ethics department need to be consulted.  HR may be hamstrung, but ethics is not. In any case, document each incident, no matter how painful.

“All workers, regardless of their age, should have an equal opportunity to compete for jobs at [company] and everywhere else.” –  Mark Goldstein, job applicant

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Mary T. O’Sullivan, Master of Science, Organizational Leadership, International Coaching Federation Professional Certified Coach, Society of Human Resource Management, “Senior Certified Professional. Graduate Certificate in Executive and Professional Career Coaching, University of Texas at Dallas.

Member, Beta Gamma Sigma, the International Honor Society.

Advanced Studies in Education from Montclair University, SUNY Oswego and Syracuse University.

Mary is also a certified Six Sigma Specialist, Contract Specialist, IPT Leader and holds a Certificate in Essentials of Human Resource Management from SHRM.