Under the federal Civil Rights Act, an employer may not make employment related decisions on the basis of a person’s place of birth, their citizenship status, their cultural traditions, and even personal characteristics that reflect a person’s cultural background – like an accent or a preference for a particular language. When we think about racial discrimination, we often think in terms of broad generalizations – like black and white – but discrimination can involve any type of distinction based on a person’s cultural background. Not only does the law prohibit discrimination against a person based on her individual cultural background, but it also prohibits discrimination based on that person’s choice to associate with people of different cultural backgrounds. For example, a decision not to hire a person because she chose to marry someone of a particular cultural identity is still discrimination. And racial discrimination doesn’t apply only to employment decisions that affect minority populations. A preference for hiring workers from a particular country, or for hiring foreign workers over American citizens can also be grounds for a discrimination claim. In later sections about advertising, interviewing, and hiring, we’ll talk about some issues specific to those stages of the employment relationship, like the distinction between discrimination on the basis of national origin and the requirement to ensure that a potential employee is legally authorized to work in the United States. It’s important to remember, though, that cultural characteristics should not be allowed to influence decisions at any stage of the employment relationship.

The Civil Rights Act also prohibits employers from making employment related decisions on the basis of a person’s religion or beliefs. While religious discrimination clearly applies to a person’s affiliation with a particular organized religion, it also applies more broadly to expressions of religion in the workplace. For example, basing an employment decision on a person’s request to wear religious attire in the workplace may be grounds for a discrimination claim. Likewise, treating a person differently based on a decision not to participate in religious activities in or outside the workplace can give rise to a discrimination claim. Protections against religious discrimination also include discrimination based on a person’s “creed”, which simply means a set of moral beliefs or practices. Those individual beliefs are protected against discrimination, even if they are not reflective of an organized religious tradition.

A person’s “sex” can’t be allowed to influence employment decisions. Both the Civil Rights Act and the Equal Pay Act prohibit sex discrimination. Whereas the Equal Pay Act has thus far been limited to wage differences between male and female employees, under the Civil Rights Act, sex discrimination is not limited to treating female employees differently from male employees. It includes discrimination based on sexual orientation and gender identity, as well as discrimination based on conditions associated with a person’s gender, such as pregnancy, breastfeeding, or contraceptive use. For example, a well-intentioned employer might instruct a pregnant woman not to do work that involves climbing a ladder, but the law doesn’t allow an employer to prevent a person from performing her job based on assumptions about her ability to perform the essential functions of the job. It’s a different story if a pregnant employee asks for a different job assignment or other accommodations to reduce safety risks. In that case, you may need to consider whether you can reasonably provide modifications to the work environment without major impact on your business activities. We’ll talk a bit more about reasonable accommodations later in this guide, but the key point for now is that it’s not okay to make employment decisions based upon assumptions or stereotypes about gender roles or gender-related conditions.

While in some cases age may make a difference in a person’s ability to perform a job, the federal Age Discrimination in Employment Act protects any person over the age of 40 from discrimination in employment opportunities on the basis of age. Although it may be true that older persons may not be well suited to performing certain jobs that require physical strength or involve hazardous conditions, age alone is not a legitimate basis for treating one person differently from other, younger, people. While a certain job might seem better suited to younger or less experienced employees, farm employers need to take care not to discourage older employees who are equally able to perform the duties of the job.

In most cases, a person’s health conditions can’t be used as a reason for making employment decisions. That includes physical and intellectual disabilities, as well as other medical conditions under the Americans with Disabilities Act, and pregnancy or pregnancy-related conditions under the Pregnancy Discrimination Act. Farm work is often physically demanding, which can make it tricky not to base employment decisions on a person’s physical ability or health conditions, but that makes it all the more important to focus on what the job actually requires, rather than our perceptions of how well a differently abled person might perform. When it comes to health or medical conditions, the law requires employers to consider applicants equally where reasonable modifications to the work environment would enable an employee or job applicant to perform as well as an equally qualified person without a health or medical condition. That may mean thinking about whether equipment or processes can be adapted, but it could also mean thinking about changes to the work schedule or the way instructions are communicated to the employee. For example, if an employee says that she is having difficulty getting to work on time because of medical treatments she is undergoing, think about whether it is possible to change the start time of her workday without disrupting essential operations.

The law also requires employers to provide reasonable accommodations when requested during the application and interview process. That may mean, for example, facilitating the use of interpreters or telecommunication devices for applicants with vision, hearing, or speech impairments, which will be explored in more detail later in this guide.

Accommodating Disabilities

Under the Americans with Disabilities Act, any employer who had 15 or more full or part-time employees on staff during each working day in 20 or more weeks during the current or previous year needs to consider taking steps to help a person with a known or perceived disability perform any kind of employment-related activity. That includes being able to apply and interview for a position, as well as performing the duties of the job if newly hired or if disabled while already an employee.

An employer is not required to provide a requested accommodation if meeting the request would impose an undue business hardship, such as excessive cost. Likewise, an employer is not required to provide a requested accommodation if the accommodation itself would prevent the employee from performing essential functions of the job, or where the employee would not be able to perform essential job functions even with the requested accommodation. For example, a request to accommodate a back injury by limiting workdays to no more than eight hours may not fulfill essential job functions where the job regularly requires longer days to account for work loads and weather conditions. If your farm needs employees to work 12 hour shifts during harvest operations, the ability to work overtime may be an essential job function.

As a general rule, an employee or prospective employee who requests an accommodation has the obligation to demonstrate that she is qualified and able to perform essential job functions with the requested accommodation. It’s important to remember, though, that an employer bears the burden of proving that a requested accommodation would create an undue hardship. An employer who can’t demonstrate undue hardship has a duty to consult with employees or prospective employees to identify possible accommodations, and to make a good faith effort to assess the impact of the requested accommodation on business operations. Employers who are subject to the federal Americans with Disabilities Act may also need to take extra steps to communicate with the person requesting the accommodation. If you need to justify a decision not to provide an accommodation, a good paper trail will be important, including a written job description identifying essential job functions, and documentation of the steps you took to identify options and weigh the business costs of providing the requested accommodation. If, under the circumstances, you are not sure whether you are required to provide an accommodation, consider consulting with an experienced attorney before making an employment decision.

Federal law doesn’t directly prohibit using criminal records to make hiring decisions, but it can lead to problems, including a possible discrimination claim. It is important to make sure that hiring decisions based on criminal records don’t have a bigger impact on certain applicants based on any of the other grounds for discrimination discussed in this guide. For example, if a conviction for marijuana possession would be disqualifying for an applicant of color, it should be disqualifying for a white applicant as well. An approach that reasonably and consistently accounts for all the circumstances of a prior conviction – such as how the prior criminal activity relates to the duties of the job and the length of time since the prior conviction – can help avoid making hiring decisions that unintentionally disadvantage people with personal characteristics that are protected against discrimination.

To give another example, it may be appropriate for a bank not to hire a security guard with a record of convictions for bank robbery, but that type of conviction probably would not relate to performing farm labor or operating farm equipment. Even serious and shocking crimes, like sexual assault, cannot influence employment decisions unless something about the work environment makes it likely that the person would engage in the same type of behavior in the workplace, or something about the nature of the past crime demonstrates personal characteristics that make it unlikely the person could effectively meet the responsibilities required by the job position. A history of convictions for drunk driving during work hours might be related to the responsibilities of a job that regularly involves using a company truck to make deliveries to restaurants that serve alcohol, but it probably would not be related to a job that involves packing vegetables under supervision. At the end of the day, a person with a record of arrests or convictions that are not related to the duties and expectations of the job should be treated the same as any other equally qualified person with no record of convictions.

The Uniformed Services Employment and Reemployment Rights Act prohibits employment decisions based on a person’s history of military service and applies to virtually all employers, regardless of size. It may be hard to imagine discriminating against a person for service in the armed forces, but the law goes farther than simply saying that a person’s veteran status can’t be used as the reason for an unfavorable employment decision. For example, the fact that a person is applying to enter military service or is likely to be deployed for military service or national guard training generally can’t be used as a reason for firing or not hiring that person. Service members are also entitled to job protections when they return from active duty. In most cases, employers are required to reinstate military veterans to positions they held before deploying for duty, even if that means making special efforts to accommodate a service-related disability or health condition. Farm employers are not, however, required to offer any special preference when hiring or promoting veterans or service members. In fact, offering a preference toward veterans may be viewed as discriminatory toward women or minority groups who are underrepresented in military occupations.

Most farm employers pride themselves on building a work culture that makes for happy, engaged, and productive employees. Sometimes, though, bullying or harassment can take place in ways or at times that are not immediately obvious. If harassment involves any of the grounds for discrimination we’ve already described, that can lead to a discrimination claim. Even when harassment doesn’t involve a discriminatory characteristic, it can still lead to legal problems if the work environment gets so hostile that it affects an employee’s health or ability to perform the job. That means farm employers need to think about how to cultivate a work environment where employees can easily and comfortably discuss any problems they might be experiencing. If a problem does get brought to your attention, the most important thing to do is take the problem seriously and try to make an objective decision about the best way to resolve the conflict. Depending on the circumstances, you may want to consult with an attorney to determine whether it makes sense for you to try to solve the problem yourself, or whether it is an issue better handled by an attorney or an outside investigator.

Now that we’ve identified the types of characteristics that are protected under the laws against discrimination, let’s look at how those factor into the different stages of the employment relationship and some action steps you can take to introduce legal resilience into your farm’s employment practices.