Employment Discrimination 1

Employment Discrimination Laws

September 28, 2009

Employment Discrimination 2 The government of the United States over the years has created statues that protect employees from discrimination. The Civil Rights Act of 1964 is a federal statue designed to protect individuals from illegal discrimination. (Liuzzo 2007 p 431). It is important for employees to know their rights in the workplace, but equally important is for employers to understand the rights of its employees and conduct business in both a legal and ethical manner with regards to the treatment of employees of a protected class. The EEOC reports, In Fiscal Year 2008, EEOC received 24,582 charges of age discrimination and recovered $82.8 million in monetary benefits, 954 charges of compensation discrimination and recovered $9.6 million in monetary benefits, and 19,453 charges of disability discriminationand recovered $57.2 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation). (EEOC) In just three of the protected classes in one year nearly 45, 000 charges were brought against employers. This paper is to provide an overview of three of the civil rights acts, Age Discrimination in Employment Act (ADEA), Equal Pay Act, and American Disabilities Act. (ADA).
Age Discrimination in Employment Act ("ADEA")

As the countries baby boomers grow older the number of older workers will increase and these workers have some protection against age discrimination. In 1967, the Age Discrimination in Employment Act was designed to address workers over the age of 40 and state that it is illegal to discriminate against this group. Specifically age may not used in making decisions regarding hiring, firing, promotions, raises, or other job related activities.

Employment Discrimination 3 In addition to the Age Discrimination Act of 1967 Brain Kleiner writes in the publication Nonprofit World of two new rulings in Supreme Courts cases that put more bite to the original act. Originally law suits could be brought against employers when a worker over 40 years of age was replaced with someone under 40 years of age. The case of a 56 year old man that lost his job to a 40 year old work changed the rules setting president that an age discrimination suit could be filed even it the replaced worker was over 40 years of age. This was the first ruling. The second ruling was termed, after-acquired-evidence rule. In this case an employee was laid off and sued the company for age discrimination. The company later learned that the employee had taken confidential company documents. Since her termination had nothing to due with the taking of documents the company could not claim wrongdoing and avoid the suit because of after acquired evidence. (Kleiner 1997) It is noted that even with the protection of age discrimination is not easy to prove such actions went on. Unless there is some clear evidence that what happened (layoff, promotions, etc) and it is generally unlikely that age discrimination can be clear and it is the employees responsibility to prove such. Senior Magazine journalist, Roger Braddock states, Merely replacing an older employee with a younger person does not establish age discrimination. Similarly, it is not necessarily illegal to replace an old employee with a high salary with a younger person earning a lower salary. An employer is liable for age discrimination only if the employee is able to prove that there was an intentional action because of age. (Braddock) Simple training in businesses about age discrimination rights can go a long way to protect the company against the possibility of age discrimination suits. I witnessed an offhanded comment

Employment Discrimination 4 that could have created a liability for the company with my recent employer. During the companies office Christmas party the general manager stood up to speak and for some reason felt the need to identify every person in the room. As she went around the room she came to introducing Jose. Jose had for many years worked in the field as a service technician, due to the companys growth it was felt there was a need for a field technician support person in the office, a person that was well experienced and could walk the technician through a problem over the phone. So as the general manager introduced Jose she stated in front a room full of people that Jose was moved into the office because he was old and could not longer work in the field. I couldnt believe what I just heard from a senior manager especially because as a field technician Jose had routinely earned substantial overtime wages as a field technician and once in the office that overtime would not be available and thus a substantial earning potential was lost by Jose. Training managers in what is an inappropriate is one way to limit the companys exposure to employee law suits. Kliener outlines 6 other steps that a company should employ to help insure, your company is free from ageism: 1. Realize that age discrimination does exist and it is a serious problem. 2. Consider ability, not age, as the most important factor in hiring, firing, and promoting people 3. Create an employment policy saying that your organization will not tolerate age discrimination. 4. Check workplace conditions to be sure there aren't any unreasonable age-related criteria. Don't assume, without sound justification, that certain positions can be handled only by workers of certain age groups.

Employment Discrimination 5 5. Monitor the composition of your workforce by age. Make sure it consists of people from different age groups. 6. Through education and training, defeat prejudices and misconceptions you and others in your organization may have against older workers.5 There are four common fallacies about older workers (Kleiner 1997) Equal Pay Act In the early 20th century women were primarily homemakers but by mid-century when men were off to war the number of women working outside the home greatly increased. Once the men returned from war the numbers decreased somewhat in order to give the jobs back to men. The prevailing fact of this era was that women were being paid substantially less than men. An almanac on the internet called infoplease.com published the chart shown in table 1 of the wage difference between men and women and reports that in 1960s women earned 58 cents for every dollar earned by a man. (infoplease). It was in 1963, John F. Kennedy signed the Equal Pay Act into law which made it illegal to pay women lower rates for the same job a man was doing based only the basis of sex. (Brunner). Now there was an official act but still the situation has made very little gains over the years. In fact the gain has been less than one half of a cent per year. There have been two landmark cases that have strengthened the equal pay act. The first was Schultz v. Wheaton Glass Co. in 1970 in which the U.S. Court of Appeals ruled jobs did not have to be identical but substantially equal. In other words changing a job title for basically the same work in order to

Employment Discrimination 6 be able to pay a women less does not void the employers responsibility to equal pay. The second case came in 1974, Corning Glass Works v Brennan. In this case the U.S. Supreme Court ruled that companies could not pay women less simple because that was the going market rate. In other words because one women will work for x rate yet a man demands more to do the same job or he will not do the job does not justify paying a women less (Brunner). Still even with landmark cases to strengthen equal pay disparity is still prevalent. Economist and WAGE Project President Evelyn Murphy has calculated that because of the wage gap, a female high school graduate is denied $700,000 over the course of her lifetime, compared to her male counterpart. The losses are greater for women who have completed college or graduate school, to upward of $1.2 million and $2 million respectively. (Troy) Dishearten news when so many women are seeking higher education. When it comes to an employee filing a wage discrimination claim the Supreme Court had put a major obstacle in the way of the victim. That being that wage discrimination suits can not be filed more than 180 days after their first discriminatory paycheck, even if the employee did not know they were being discriminated against. Lilly Ledbetter worked for Goodyear tire factory as supervisor for 19 years in Alabama and then filed suit that she had been paid less than men at the company. Lilly lost her case but later Congress approved legislation that changed the ruling to state that victims of pay discrimination could file suit against their employer within 180 days after their last paycheck. This is known as the Lily Ledbetter Fair Pay Restoration Act, named after Lilly in her case with Goodyear. We make note that the Lily Ledbetter Fair Pay Restoration Act was the first bill signed by President Obama. New York Times writer Sheryl Gay Stolberg quotes Obama, It is fitting that with the very first bill I sign the Lilly Ledbetter Fair Pay Act we are upholding one of

Employment Discrimination 7 this nations first principles: that we are all created equal and each deserve a chance to pursue our own version of happiness, the president said. (Stolberg 2009) Stolberg also writes, He said he was signing the bill not only in honor of Ms. Ledbetter who stood behind him, shaking her head and clasping her hands in seeming disbelief but in honor of his own grandmother, who worked in a bank all her life, and even after she hit that glass ceiling, kept getting up again and for his daughters, because I want them to grow up in a nation that values their contributions, where there are no limits to their dreams. (Stolberg 2009) Valuing women and having no limits to their dreams is a goal we all wish for our children but in our current society equal pay means so much more to those struggling to make ends met and raise a family. The National Organization for Women puts it very well, Pay equity is an issue of survival for women and their families and it must be a national priority. Guaranteeing that women receive fair pay for the work they do is a crucial step towards the economic stability of families and the self-sufficiency and economic well-being of women. (Troy 2009) Americans with Disabilities Act ("ADA") President George W. Bush signed a new act with is intended to assist people with disabilities, specifically Title I addresses the workplace for employees. Title I of the Americans with Disabilities Act of 1990 prohibits both private and government employers from discriminating against individuals with disabilities in applying for jobs, hiring, firing, advancement, compensation, and training. This act applies to companies with 15 or more employees. The equal opportunity commission defines a person with a disability as someone who:

Employment Discrimination 8

Has a physical or mental impairment that substantially limits one or more major life activities;

Has a record of such an impairment; or Is regarded as having such an impairment.

Further the ADA states an employer much make reasonable accommodation. Some of instances of reasonable accommodation may include: making the workplace accessible to persons with disabilities, adjusting work schedules, or modifying equipment. Reasonable accommodation is also stated that it will not impose and undue hardship to the business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employers size, financial resources, and the nature and structure of its operation. (EEOC) For example; if an employee has vision trouble and requests a larger computer monitor one would reasonably expect that providing a larger computer monitor does not impose and undo hardship. In the opposite case if a deaf person required a translator to perform their job it would not generally be construed as a reasonable accommodation for a small business to hire a translator. Just like it is illegal to ask a job applicant their age or marital status it is also illegal to ask a job applicant about the existence, nature, or severity of a disability. An employer can however ask about the ability to perform specific job functions. ADA is designed to protect employees against discrimination but it is also not designed to protect individuals that may cause harm to themselves or others. I had a situation a few years ago of a young man named, Derek who was hired as a field service technician. As a field service

Employment Discrimination 9 technician it was a routine job responsibility to drive a van and service water stations in often remote locations. As per company procedure we ran an annual driving record of all employees to insure they met the qualifications each year of our insurance company. On this one year the report came back noting that Derek had been in an auto accident. When Derek was confronted about the incident Derek stated that he was an alcoholic and an epileptic. The auto accident occurred after he had been drinking and on the way home he had a seizure. The general manager of the company liked Derek and felt that under ADA he was protected we could not terminate his employment. I strongly disagreed with the understanding that ADA does not apply when a disability is a direct threat to their safety and the safety of others. This person is driving a company vehicle, is known to have seizures while driving. If he should get in an accident in a company vehicle and kill someone we would have tremendous liability in that we know the safety risk was great and did not exercise reasonable care. Since there was not another position to transfer Derek within the company we were within our rights and our moral responsibility to terminate Dereks employment. Although ADA does protect workers rights they are not protected to the point that; 1) they are a significant risk of a seizure will operating a vehicle, 2) the likelihood of seizure was great (he admitted to being an alcoholic), 3) the medical condition would not improve or go away any time soon, 4) there was substantial risk of harm and/or death from driving. The New Industrial Order in the late 1800s was filled with citizens working 12 hours days/7days a week in often unsafe conditions. The thought of protected classes was a long way off. By the mid 1900s American workers and politicians became to recognize its work force with not only balanced labor hours and better safety, but also fair employment for all people. The

Employment Discrimination 10 process continues to evolve as we saw just months ago with President Obama signing Equal-Pay Legislation. Protecting the Civil Rights of our citizens had built and will continue to build a strong and unified country.

Employment Discrimination 11 References

Bradock, R, Age Discrimination Claims The Basics, Senior Magazine Online, http://www.seniormag.com/legal/age-discrimination.htm, Retrieved September 4, 2009 Brunner, Borgna, The Wage Gap A History of Pay Inequality and the Equal Pay Act, http://www.infoplease.com/spot/equalpayact1.html Retrieved September 4, 2009 Jose Luis Hung Lee, & Brain H Kleiner. (1997, November). How to avoid agediscrimination lawsuits. Nonprofit World, 15(6), 22-23. Retrieved September 4, 2009, from ABI/INFORM Global. (Document ID: 23511789). Liuzzo, A. & Bonnice, J. (2007) Essentials of Business Law (6th ed.). New York: McGrawHill/Irwin National Womens Law Center, The Wage Gap, http://www.infoplease.com/ipa/A0763170 .html Retrieved September 4, 2009 Stolberg, S, Obama Signs Equal-Pay Legislation, The New York Times January 29, 2009, http://www.nytimes.com/2009/01/30/us/politics/30ledbetter-web.html, Retrieved September 4, 2009 The U.S. Equal Employment Opportunity Commission, Age Discrimination, http://www.eeoc.gov/types/age.html Retrieved September 5, 2009 The U.S. Equal Employment Opportunity Commission, EEOC and Title I of the ADA: Overview and History, http://www.eeoc.gov/ada/adahistory.html, Retrieved September 5, 2009 The U.S. Equal Employment Opportunity Commission, Equal Pay and Compensation Discrimination, http://www.eeoc.gov/types/epa.html Retrieved September 5, 2009 Troy, K.. (2009, April). Equal Pay Struggle: 46 Years and Still Shortchanged. National NOW Times, 41(1), 2. Retrieved September 4, 2009, from Research Library. (Document ID: 1701037481).

Year 1951 1952 1953 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 1964 1965 1966 1967 1968 1969

Percent 63.9% 63.9 63.9 63.9 63.9 63.3 63.8 63.0 61.3 60.7 59.2 59.3% 58.9 59.1 59.9 57.6 57.8 58.2 58.9

Year 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988

Percent 59.4 59.5 57.9 56.6% 58.8 58.8 60.2 58.9 59.4 59.7 60.2 59.2 61.7 63.6 63.7% 64.6 64.3 65.2 66.0

Year 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007

Percent 68.7 71.6 69.9 70.8 71.5 72.0 71.4% 73.8 74.2 73.2 72.2 73.3 76.3 76.6 75.5 76.6 77.0 76.9 77.8

Table 1 Source: U.S. Women's Bureau and the National Committee on Pay Equity. Reproduced by permission of the National Committee on Pay Equity.