Like pretty much everything else we discussed in this class, federal employment discrimination protections only apply to workers who are classified as employees. While it's important to have a sense of what these protections are, it's also important to note that almost none of them apply to gig workers right now. At the federal level, a few different statutes addressed the problem of discrimination at work. First, there's Title VII, which is the primary federal employment discrimination law and is codified at 42 USC 2000e onwards. Title VII is part of the Civil Rights Act of 1964, which was proposed by President Kennedy, but carried through by President Johnson and which is a much broader law dealing with discrimination across multiple aspects of life, not just employment conditions. Title VII applies to employers and unions, among others and it's meant to be pretty broad, encourage itself. Any entity engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks and the current or preceding calendar year is covered by the act as is any agent of such an entity. The statute says that employers may not fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual because of such individual's race, color, religion, sex, or national origin. And it also says that employers may not limit, segregate or classify his employees or applicants for employment in any way because of such individual's race, color, religion, sex, or national origin. Boiled down, this tells us a few important things. First, Title VII recognizes five protected statuses, race, color, religion, sex, which now includes sexual orientation and gender identity, and national origin. Discrimination on the basis of any of these qualities is generally not permitted. Second, Title VII protects both employees and applicants for employment. Third, Title VII prohibits both intentional and unintentional forms of discrimination. You can see that the first employer directed rule requires intent otherwise to discriminate against any individual because of their protected status while the second one does not limit segregate or classify in any way which would deprive or tend to deprive. The difference between intentional discrimination, the classic form of which is called disparate treatment and unintentional discrimination, the classic form of which is called disparate impact, will be especially important as we move forward into talking about gig work in particular. Second, a few other federal statutes create broadly similar protections on the basis of other protected statuses. The Age Discrimination in Employment Act of 1967, which is codified at 29 USC 621 onwards, protects, as you might have guessed, against discrimination on the basis of age. What you might not guess though is that the ADEA only protects against old age discrimination. In other words, if you find yourself in the unlikely situation of being a younger employee who's passed over for an older employee, you're probably out of luck. The ADEA only protects employees who are over the age of 40, so if you're a 35-year-old, passed over for a 25-year-old, you're out of luck too. The Americans with Disabilities Act, or ADA, was passed in 1990 and significantly amended in 2008. It's codified at 42 USC 12101 onwards. The amended ADA defines disability broadly. It means having a physical or mental impairment that substantially limits one or more major life activities, having a record of such an impairment and it also means being regarded as having such an impairment. The last two statutes I want to mention are ones that were passed before Title VII and also before the ADA and ADEA. Let's go in reverse chronological order. First, just the year before Title VII, Congress passed the Equal Pay Act of 1963, which is codified at 29 USC 206(d). The EPA is actually an amendment to the Fair Labor Standards Act of 1938, which governs minimum wage and overtime requirements. Because the EPA aim to abolish wage disparities based on sex, the protections offered by the EPA were in a sense expanded the following year when Congress prohibited the discrimination on the basis of sex writ large, rather than only with regards to compensation via Title VII. Finally, there's the Civil Rights Act of 1866, codified at 42 USC 1981. This statue, which was passed in the aftermath of the Civil War and which is usually referred to by its codified location as Section 1981, is special in a few ways. It's the first federal statute to define citizenship and affirm the equality of all citizens. It's the only federal statute that protects exclusively on the basis of race and color. It's also the only federal statute that impacts employment without being about employment. Instead, the relevant portion of the statute prohibits discrimination in the making and enforcement of contracts and employment of course is a contract. Finally, this one is maybe the biggest of all for our purposes. It's the only federal statute that regulates employment discrimination and that applies to independent contractors as well as employees. The relevant portion of Section 1981 reads as follows, "All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts as is enjoyed by white citizens." Now, federal statutes aren't all that we have to deal with in terms of discrimination at work. Far from it, states are also heavily involved in creating and enforcing employment discrimination protections. But as with so many other areas of law, there's huge variation among the states and so the federal legislative scheme we've just outlined acts as a floor, a set of minimum standards that apply across the country mostly, but not exclusively, to workers who are considered employees.
