Employment discrimination law in the United States derives from the common law, and is codified in numerous state, federal, and local laws. These laws prohibit discrimination based on certain characteristics or "protected categories." The United States Constitution also prohibits discrimination by federal and state governments against their public employees. Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state law, including the Title VII of the Civil Rights Act of 1964. Federal law prohibits discrimination in a number of areas, including recruiting, hiring, job evaluations, promotion policies, training, compensation and disciplinary action. State laws often extend protection to additional categories or employers.
Under federal employment discrimination law, employers generally cannot discriminate against employees on the basis of race, sex (including sexual orientation and gender identity), pregnancy, religion, national origin, disability (physical or mental, including status), age (for workers over 40), military service or affiliation, bankruptcy or bad debts, genetic information, and citizenship status (for citizens, permanent residents, temporary residents, refugees, and asylees).
List of United States federal discrimination law
Equal Pay Act of 1963
Civil Rights Act of 1964
Title VI of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964
Executive Order 11246
Age Discrimination in Employment Act of 1967
Education Amendments of 1972
Title IX
Rehabilitation Act of 1973
Vietnam Era Veterans' Readjustment Assistance Act of 1974
Age Discrimination Act of 1975
Americans with Disabilities Act of 1990
Genetic Information Nondiscrimination Act of 2008
Pregnancy Discrimination Act of 1978
The Employee Retirement Income Security Act of 1974
Constitutional basis
The United States Constitution does not directly address employment discrimination, but its prohibitions on discrimination by the federal government have been held to protect federal government employees.
The Fifth and Fourteenth Amendments to the United States Constitution limit the power of the federal and state governments to discriminate. The Fifth Amendment has an explicit requirement that the federal government does not deprive individuals of "life, liberty, or property", without due process of the law. It also contains an implicit guarantee that the Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. In the employment context, these Constitutional provisions would limit the right of the state and federal governments to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group (such as a race or sex). Due process protection requires that government employees have a fair procedural process before they are terminated if the termination is related to a "liberty" (such as the right to free speech) or property interest. As both Due Process and Equal Protection Clauses are passive, the clause that empowers Congress to pass anti-discrimination bills (so they are not unconstitutional under Tenth Amendment) is Section 5 of Fourteenth Amendment.
Employment discrimination or harassment in the private sector is not unconstitutional because Federal and most State Constitutions do not expressly give their respective government the power to enact civil rights laws that apply to the private sector. The Federal government's authority to regulate a private business, including civil rights laws, stems from their power to regulate all commerce between the States. Some State Constitutions do expressly afford some protection from public and private employment discrimination, such as Article I of the California Constitution. However, most State Constitutions only address discriminatory treatment by the government, including a public employer.
Absent of a provision in a State Constitution, State civil rights laws that regulate the private sector are generally Constitutional under the "police powers" doctrine or the power of a State to enact laws designed to protect public health, safety and morals. All States must adhere to the Federal Civil Rights laws, but States may enact civil rights laws that offer additional employment protection.