What Is Employment Discrimination?
The default rule in the US is at-will employment, which means that employers or employees can terminate the employment relationship at any time, for any reason or for no reason unless:

  • The law prohibits it.
  • A contract modifies it (for example, a collective bargaining agreement (CBA) or a for-cause employment provision in an employment contract).
  • A statutory scheme regulates how employees may be disciplined or terminated, as is common in federal, state, and local government civil service systems.

This broad discretion extends to most employers engaging in other kinds of adverse employment actions, such as declining to hire or promote.

At-will employment is limited to lawful employment actions. The most significant unlawful employment action is discrimination. Employment discrimination law prohibits employers from taking adverse employment actions against employees and applicants on the basis of their membership in a protected class.

There is no single source for employment discrimination law. Employment discrimination is prohibited by many federal, state, and local statutes.

How Is an Employment Discrimination Claim Brought?
For most employment discrimination claims, the process begins when an employee files a complaint with the EEOC or its state or local equivalent fair employment practices agency (FEPA). This step, called the exhaustion of administrative remedies, is required before the employee can file a lawsuit in court.

The general rule for most claims is that the administrative process ends when the EEOC issues a right-to-sue letter. An employee who wishes to file a lawsuit must file in court within 90 days of receiving the right-to-sue letter. Claims may be settled at any time or resolved at the administrative level, but some proceed to court at great expense to employers.

Employment discrimination claims in the federal sector follow a different process.

Retaliation Prohibited
State and federal statutes regulating the employment relationship prohibit employer retaliation (taking adverse employment actions) against employees who engage in protected activity. For purposes of Title VII of the Civil Rights Act of 1964 (Title VII), retaliation also includes adverse employment action because of protected activity by parties with a close association to the employee (for example, a fiancé).

Protected activity may include any of the following:

  • Exercising rights under a statute.
  • Internal complaints.
  • Complaints to government agencies.
  • Lawsuits.
  • Opposing allegedly unlawful activity.

Whistleblowing is a kind of protected activity generally involving a complaint about wrongdoing by an entity, reported by someone associated with that entity.

Prohibited retaliation includes a variety of adverse employment actions taken against an employee in response to engagement in protected activity. Prohibited employer conduct may include:

  • Termination of employment.
  • Demotion.
  • Reduction of hours.
  • Reassignment.
  • Relocation.

The Fair Labor Standards Act (FLSA) is the primary federal law governing wage and hour standards for most full- and part-time workers in both public and private employment. The statute establishes minimum wage and overtime pay requirements, recordkeeping obligations, child labor restrictions, and a variety of other workplace standards.

The Wage and Hour Division (WHD) of the Department of Labor administers and enforces the FLSA.

Basic Requirements of the FLSA
An employer's principal obligations under the FLSA are to pay nonexempt employees both:

A minimum hourly wage (or its equivalent) that is at least equal to the federal minimum wage (currently $7.25 an hour).

Overtime pay for all hours worked over 40 in a workweek at a rate of at least 1.5 times the employee's regular rate of pay.