Employment Law IV

BHR 3565, Employment Law 1

Course Learning Outcomes for Unit IV Upon completion of this unit, students should be able to:

3. Explain the types of federally prohibited discrimination in the workplace environment. 3.1 Describe possible legal concerns related to a case concerning discrimination.

5. Discuss Affirmative Action policies.

5.1 Recommend a course of action based on a case concerning affirmative action policies.

8. Explain the causes of action under federal antidiscrimination laws. 8.1 Associate applicable statutes and laws to a case concerning discrimination.

Course/Unit

Learning Outcomes Learning Activity

3 Unit Lesson Chapters 9 and 10

3.1 Unit Lesson Chapters 9 and 10 Unit IV Scholarly Activity

5.1 Chapter 11 Unit IV Scholarly Activity

8 Unit Lesson Chapters 9 and 10

8.1 Unit Lesson Chapters 9 and 10 Unit IV Scholarly Activity

Reading Assignment Chapter 9: Discrimination Based on Age Chapter 10: Discrimination Based on Disability Chapter 11: Other EEO and Employment Legislation: Federal and State Laws Unit Lesson Federal laws are usually enacted to address a specific issue that exists rather than to address an issue that is expected to develop. Title VII of the Civil Rights Act of 1964 was intended to address specific kinds of discrimination in employment that was occurring when the act was approved by Congress. However, Title VII does not address every kind of discrimination in employment and especially discrimination in employment that had not been identified at the time. We have already seen that Title VII has been amended to expand the prohibition against discrimination in employment for concerns that were later recognized as issues that needed to be addressed. For instance, the Pregnancy Discrimination Act of 1978 was actually an amendment to Title VII to extend the prohibition against discrimination based on gender to include pregnancy as a class protected from discrimination in employment. Age Discrimination Age discrimination was another issue that needed to be addressed after the Civil Rights Act was passed. The primary instance of discrimination based on age occurred when employers terminated older employees and

UNIT IV STUDY GUIDE Discrimination Based on Age and Disability

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replaced them with younger employees in an effort to improve labor efficiency and/or reduce labor costs. The Age Discrimination in Employment Act (ADEA, 1996) covers employees over the age of 40 who work for an employer who has 20 or more employees in an industry that affects commerce. This act was passed by Congress because of widespread age discrimination. The act also applies to unions with 25 or more members. The provisions of the law safeguard employees from age discrimination in the areas of compensation, promotion, hiring, and terms of employment. If the employee is under the age of 40, the employer can discriminate in hiring and firing and use age as a factor in hiring and firing. The law is applicable to state, federal agencies, and private companies. The U.S. Supreme Court used this question in determining a cause of action: Was the person over 40 replaced by an employee substantially younger? Companies, when downsizing, may ask the employees to sign a waiver. This waiver maybe couched in language that is not understandable by the employee. This agreement has the intent to waive the employees' rights to bring claims under ADEA (1996). To counteract this employer tactic, ADEA was amended in 1990 so that employees cannot waive any rights under this act unless they agree “knowingly and voluntarily.” This amendment is referred to as the Older Workers Benefit Protection Act (OWBPA). There are specific requirements that must be met for the waiver to meet the statutory requirements of validity. An employment agency is also restricted from not referring a person over forty for a potential job. Defenses of the Employer There are certain defenses an employer may have, including that the employee was released for good cause or reasons that do not relate to age. Another defense is that the employer has a bona fide retirement, seniority system, pension, or benefit system. The employer may have production-based pay in place that determines compensation based on productivity. If the employer has a bona fide occupational disqualification that is reasonable and necessary for the performance of the job, age limitations may be set. When the employer has a work reduction and offers retirement packages and incentives, the plan must be available to all who meet the requirements and must be voluntary. The employer has to show the primary reason was some factor other than age. Remedies under ADEA The employee has to prove four things to be successful in an age discrimination case:

x that they are 40 years or older, x that they are qualified for the position, x that the employee suffered an adverse employment action, and x that there is evidence that the employer considered their age in making the action (ADEA, 1996).

A successful employee can recover back pay and legal fees. The employee can prove his or her case through direct evidence or circumstantial evidence. Direct evidence would be statements or written communication. Generally, direct evidence is difficult to prove. The aggrieved party can also seek injunctive relief to prevent the firing of employees. If the employer acted willfully, liquidated damages may be recovered. Liquidated damages are awarded when there is willfulness on the part of the employer to discriminate based on age. Liquidated damages are double damages and are awarded to deter this type of conduct. Occasionally, the employee can get consequential damages for trauma. In actions against the state, there are no money damages allowed. Occasionally an employee can get double damages if it can be proved that the discrimination was an intentional act. Discrimination Based on Disability The Americans with Disabilities Act (ADA, 2000) applies to employers with 15 or more employees. The act does not apply to most federal government employers, Native American tribes, and private clubs (Cihon & Castagnera, 2017). The act prohibits discrimination against disabled employees that are otherwise qualified for the job. The law applies to hiring, firing, promotion, compensation, training, and all other employment activities.

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The act was amended and the amendment took effect in 2009. The amendment expanded the definition of major life activities. It is considered illegal discrimination if an employer does not make reasonable accommodations unless such accommodations would pose an undue hardship on the employer. What is Considered a Disability? A disability is a physical or mental impairment that substantially inhibits a person’s major life activity. Temporary disabilities do not apply under the act. Below are examples of a disability under the ADA:

x epilepsy, x mental impairment, x diabetes, x vision impairment, x hearing impairment, x paralysis, x HIV, or x a learning disability (ADA, 2000).

Constitutional Challenges to Discrimination Employees in the public sector can challenge employment discrimination on constitutional grounds. The U.S. Constitution guarantees due process and equal protection under the Fifth and Fourteenth Amendments. These constitutional challenges may be exercised where Title VII does not apply such as with federal employees (Cihon & Castagnera, 2017).

References Age Discrimination in Employment Amendments of 1967. 29 U.S.C. §§ 621-634 (1996). Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (2000). Cihon, P. J., & Castagnera, J. O. (2017). Employment and labor law (9th ed.). Boston, MA: Cengage

Learning. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 2, 28,

and 42 U.S.C.). Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978). Suggested Reading In order to access the following resource, click the link below. This article is based on a study from the University of Nebraska-Lincoln that shows the importance of the type

of legal causality required for age discrimination cases. Wiener, R. L., & Farnum, K. S. (2016). How old is old in allegations of age discrimination? The limitations of

existing law. Law and Human Behavior, 40(5), 536-550. Retrieved from https://libraryresources.columbiasouthern.edu/login?url=http://search.ebscohost.com/login.aspx?direc t=true&db=pdh&AN=2016-25880-001&site=ehost-live&scope=site