Employment Discrimination Laws and Regulations

Federal Employment Discrimination Laws

• Employment discrimination involves treating employees or job applicants unequally based on race, color, national origin, religion, sex (gender), age, or disability.
• Prior to the 1960s, employers had significant power to discriminate, which included:
  • Refusing to hire racial minorities.
  • Excluding women from promotions.
  • Paying men more than women for the same work.
• The civil rights movement in the 1960s led to legislation at both federal and state levels to curtail employer discrimination.
• Key statutes include:
  • Title VII of the Civil Rights Act of 1964.
  • Equal Pay Act of 1963.
  • Age Discrimination in Employment Act of 1967.
  • Americans with Disabilities Act of 1990.

Title VII of the Civil Rights Act of 1964

• Title VII is the most fundamental anti-discrimination law which prohibits discrimination based on:
  • Race.
  • Sex.
  • Religion.
  • National origin.
  • Color.
• It encompasses decisions related to hiring, promotion, layoff, and discharge.
• The Act's passage was the result of a long historical context, including:
  • Slavery.
  • The founding of the U.S. legal system.
  • The Civil War.
  • Historical and political developments spanning from the end of the Civil War to the Act's enactment.
• During the Reconstruction Era, Southern states resisted federal civil rights laws.
• Supreme Court decisions like Plessy v. Ferguson supported "separate but equal" facilities, limiting the impact of these laws.
• The Supreme Court case Brown v. Board of Education reversed the "separate but equal" doctrine, mandating the integration of public schools.
• Title VII prohibits employment discrimination based on race, religion, sex, or national origin. It states that:
  • It is unlawful for an employer to discriminate against any individual regarding compensation, terms, conditions, or privileges of employment due to their race, color, religion, sex, or national origin.
• Title VII applies to:
  • Employers with 15 or more employees whose business affects interstate commerce.
  • All employment agencies.
  • Labor unions with 15 or more members.
  • State and local governments and their agencies.
• Two major types of Title VII cases:
  • Disparate treatment: Intentional discrimination against employees who are members of protected classes.
  • Disparate impact: Employer practices that appear neutral but have a discriminatory impact on protected classes.
• Religious organizations can give preference in employment to individuals of the same religion.
• Equal pay is also an issue in sex (or gender) discrimination.
• Unlawful disparate treatment includes refusing to hire individuals based on their religion (e.g., Catholics, Jews, Buddhists).
• Religious accommodation is also protected. For example:
  • Refusing to allow a Sikh to wear a turban.
• Other forms of discrimination:
  • Quid pro quo.
  • Hostile work environment.
  • Refusal to hire or promote a woman based on her gender.
  • Pregnancy discrimination is considered a form of sex discrimination under the Pregnancy Act of 1978.
• Sexual harassment which includes:
  • Unwelcome sexual advances.
  • Requests for sexual favors.
  • Verbal or physical conduct of a sexual nature.
• Race refers to broad categories (e.g., Black, Caucasian, Asian, Native American), color refers to skin color, and national origin refers to a person’s country of ancestry.
• Exceptions to Title VII:
  • Employers can select and promote based on merit (work, education, ability tests).
  • Seniority systems that reward long-term employees are allowed such as giving higher wages, benefits, better working hours or vacation schedules to encourage worker retention.
  • Bona fide occupational qualifications (BFOQs) are permitted for certain jobs, but race or color can never be a BFOQ.
• Affirmative defense in sexual harassment cases (Faragher v. City of Boca Raton, Burlington Industries, Inc. v. Ellerth):
  • Employers may have a defense if they can prove they took reasonable care to prevent and correct the harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
• Affirmative action is a remedy for past discrimination, either court-ordered or voluntary, to hire or promote previously disadvantaged classes of workers.

Age Discrimination in Employment Act (ADEA)

• The Age Discrimination in Employment Act (ADEA) of 1967 (amended in 1978 and 1986) prohibits age-based discrimination.

Americans with Disabilities Act (ADA)

• The Americans with Disabilities Act (ADA) of 1990 prohibits discrimination based on disability.
• A disabled person is someone with a physical or mental impairment that substantially limits a major life activity or someone who is regarded as having such an impairment. This includes:
  • Mental illness.
  • Epilepsy.
  • Visual impairment.
  • Dyslexia.
  • AIDS.
  • Recovered alcoholics or drug addicts.
• It does not cover:
  • Sexual disorders.
  • Pyromania.
  • Kleptomania.
  • Exhibitionism.
  • Compulsive gambling.

Equal Pay Act of 1963

• The Equal Pay Act of 1963 protects men and women from pay discrimination based on sex.
• It covers all levels of private sector employees and state/local government employees, but not federal workers.

Employment at Will

• At common law, an employee without a contract for a specific period was an employee at will which means:
  • They could be fired at any time.
  • They could be fired for any reason or no reason at all.
• Courts and legislatures in over 40 states have changed the at-will doctrine.
• The tort of wrongful discharge is a major exception.
  • Wrongful discharge: Firing a worker for a bad reason which includes:
    • Discharging an employee for refusing to violate a law.
    • Discharging an employee for exercising a legal right.
    • Discharging an employee for performing a legal duty.
    • Discharging an employee in a way that violates public policy.
• An employee should not be fired for refusing to break the law.
• Example case includes:
  • Bob Berkowitz filing a workers’ compensation claim and being fired because the employer doesn’t want to increase workers’ comp premiums.
• Employees cannot be fired for serving on a jury.
• Discharging an employee in a way that violates public policy is controversial due to the vagueness of "basic social rights, duties, or responsibilities."
• Contract law can modify employment at will through oral promises.
• Some states have an implied covenant of good faith and fair dealing with employees.
  • It is "bad faith" to discharge employees to avoid paying commissions or pensions.

Other Employment-Related Laws

• Plant closings:
  • The Worker Adjustment and Retraining Notification (WARN) Act requires employers to give advance notice.
  • Exemptions from notice include:
    • Unforeseeable business circumstances.
    • Actively seeking capital or business to avoid shutdown.
• Employee Polygraph Protection Act forbids private employers from using lie detectors for any reason.
• Occupational Safety and Health Act aims to ensure safe and healthful working conditions.
  • Employers have a general duty to provide a workplace free from recognized hazards.
  • The Secretary of Labor can establish national health and safety standards.
• Employee Retirement Income Security Act was enacted to prevent abuses in private pension plans.
• Fair Labor Standards Act of 1938
  • Enacted a national minimum wage law.
  • Prohibits most forms of child labor.
  • Established minimum wages for the regular workweek and higher rates for overtime.
• State workers’ compensation laws cover work-related injuries or illnesses.
  • Provide weekly compensation for disabilities.
  • Pay hospital and medical expenses for injured workers.
• Employment discrimination is largely governed by state law.
  • The Civil Rights Act of 1964 tells federal courts to defer to state agencies.