Unit V Assessment ***MATHGUY18 ONLY***

BHR 3565, Employment Law 1

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

5. Identify and discuss sexual harassment, discrimination, and orientation issues within the workplace and their implications. 5.1 Explain the protections that the Family and Medical Leave Act offers to employees. 5.2 Describe how the Pregnancy Discrimination Act balances the interests of women and

employers of women who may become pregnant. 5.3 Contrast the protections against discrimination on the basis of sexual orientation available in

federal law with those available in state laws. 5.4 Identify the legal and employment difficulties faced by employees with same-sex partners.

Reading Assignment Chapter 12: Pregnancy Discrimination and Family and Medical Leave Chapter 13: Sexual Orientation

Unit Lesson Employers seek to make their businesses profitable, and one way to increase the profitability of a business is to increase productivity. Productivity depends in large part on employees working efficiently and employers being able to depend on employees being at work and ready to work. Therefore, it makes good business sense for an employer to hire employees who are well-qualified and dependable and to avoid hiring anyone who the employer knows will not always be available to work when the employer needs he or she to work. For example, if an employer knows that a person is ill or that a person’s home-life or family obligations will likely interfere with the person’s ability to work efficiently and regularly, then the employer, in the best interest of the business, should not have to hire that person. That may make good business sense, but there are legal reasons why that course of action may not be legal. Until 1978, employers could refuse to hire females who were either pregnant or who admitted that they expected to become pregnant. The justification was simple – the best interest of the business was not to hire someone who would need time off of work and who might be distracted by things outside of work. Of course, that approach is also discriminatory, but it was not exactly discrimination that was addressed in Title VII of the Civil Rights Act. Title VII does prohibit discrimination in employment on the basis of sex, and of course, refusing to hire someone because she was pregnant or expected to become pregnant meant that only females would not be hired, but it was not exactly discrimination that was based on sex; it was discrimination based specifically on a factor that was not sex. To alleviate the lack of direct connection to sex discrimination, in 1978 the Pregnancy Protection Act amended the Civil Rights Act to specifically provide that discrimination in employment on the basis of pregnancy (either an existing pregnancy or the possibility of a future pregnancy) was prohibited (Moran, 2014). Although the Pregnancy Protection Act solved the discrimination based on pregnancy problem, it left related questions unanswered and left employers in a difficult position. Because employers could not discriminate against females on the grounds of pregnancy, it meant that there would be more pregnant females in the workplace, and if the workplace was dangerous in some regard, it meant that there would be more pregnant females in dangerous workplaces that endangered not only the pregnant females, but also their unborn babies. This was a potential liability for employers, so employers had to find a way to protect those pregnant females and their babies in these workplaces. The simplest approach seemed to be to assign pregnant

UNIT V STUDY GUIDE

Discrimination in Employment on the Basis of Family Relationships and Sexual Orientation

BHR 3565, Employment Law 2

UNIT x STUDY GUIDE

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female employees to jobs that were not so hazardous or that did not expose them to the primary dangers in the workplace. However, this approach presented new discrimination issues. The less hazardous jobs that pregnant females were being assigned to often were the lower paying jobs, and even when the less hazardous jobs were equal in pay to the more hazardous jobs, the pregnant females were not getting the experience that would qualify them for advancement later on. Several courts ruled that assigning a pregnant female to a less hazardous, lower paying job constituted discrimination in employment based on sex, which is prohibited by Title VII of the Civil Rights Act. That left employers in a difficult position – they could not discriminate by not hiring pregnant females, but they also could not protect pregnant females by assigning them to less hazardous jobs, so employers were faced with exposing themselves to liability for injuries to pregnant females and their unborn babies in order not to discriminate against those females. Employers have sought to address this untenable position by offering alternative positions with comparable pay and by providing on-the-job services to pregnant employees such as prenatal counseling programs and medical care (Moran, 2014). A related federal law is the Family Medical and Leave Act (FMLA) that requires employers to allow employees up to 12 weeks of unpaid leave annually to care for close relatives or to deal with their own medical issues. Therefore, under federal law, a pregnant female employee is entitled to 12 weeks of unpaid leave to have her baby, even if the employer does not have a policy that allows maternity leave, and it is now pretty clear that FMLA also allows a father up to 12 weeks of unpaid leave to take care of the mother and new baby (Moran, 2014). Another issue not addressed by Title VII of the Civil Rights Act is discrimination in employment based on sexual orientation. Simply, sexual orientation is not a protected class under Title VII, so an employer who refuses to hire someone because of his or her sexual orientation has not violated Title VII. That may change in the future, but at this point, the deficiency in the federal law has been made up for in several states which have enacted laws that prohibit discrimination in employment on the basis of sexual orientation. However, the law in this area is far from clear. For instance, how does an employer handle a situation where a transgender employee is harassed by other employees? Is that discrimination based on sex? Can an employer enforce a dress code that does not accommodate a transsexual without violating a law that prohibits discrimination on the basis of sexual orientation? These and many other similar questions remain to be answered. Closely related is the question of employer-provided benefits for the same-sex partner of an employee. If an employer provides health benefits to employees and their dependents, is the same-sex partner of an employee a dependent? Does it make a difference if the state where the employer and employee are located recognizes same-sex marriage? Again, these are questions that law and company policies are struggling to resolve.

Reference Moran, J. J. (2014). Employment law: New challenges in the business environment (6th ed.). Upper Saddle

River, NJ: Prentice Hall.

Key Terms 1. Family and Medical Leave Act 2. Fetal protection policies 3. Gender identity 4. Pregnancy discrimination 5. Transgendered 6. Transsexual