Unit VII Employment Law ***FOR MATHGUY 18***

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

6. Identify and explain government regulations regarding national origin discrimination, age discrimination, and disability discrimination. 6.1 Identify the elements of age discrimination. 6.2 Describe what employers can do to encourage older workers to retire without committing age

discrimination. 6.3 Evaluate what constitutes a disability under the Americans with Disabilities Act and how such a

disability impacts the employment relationship. 6.4 Assess what employers must do to provide reasonable accommodation to employees with

disabilities.

Reading Assignment Chapter 16: Age Discrimination Chapter 17: Disability Discrimination

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 was intended to address specific kinds of discrimination in employment that had been occurring when the Civil Rights 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 as being an issue. We have already seen that Title VII has been amended to expand the prohibition against discrimination in employment to issues which were later recognized to be issues that needed to be addressed. For instance, the Pregnancy Discrimination Act in 1978 was actually an amendment to Title VII to extend the prohibition against discrimination on the basis of gender to include pregnancy as a class protected from discrimination in employment. Another of the issues involving discrimination in employment that was recognized as an issue that needed to be addressed after the Civil Rights Act was enacted is the issue of age discrimination. The primary instance of discrimination based on age occurred when employers terminated older employees and replaced them with younger employees in an effort to improve labor efficiency and/or reduce labor costs. Until the Age Discrimination in Employment Act in 1967 (ADEA), terminating older employees was a business decision – there was no organized effort to discriminate against older employees. However, the results of employers’ efforts to improve efficiency and reduce costs by terminating older workers had negative impacts on older workers, and to protect older workers from what was considered to be discriminatory treatment, Congress enacted the ADEA. Under the ADEA, employees have to prove that they were qualified for a job, that they were terminated from that job, that they were over the age of forty (the arbitrary age that the ADEA specifies to define older employees), and that they were replaced by a younger worker or that in some other manner they were discriminated against because of their age (Moran, 2014). Of course, the strict application of the ADEA could cause employers who were really trying to terminate people who could no longer do the job and replace them with someone who could do the job in a difficult position. The ADEA could also put an employer in a position of having to pay someone a large salary because he or she had been employed with the employer for a long time, when the job could be done by a younger worker who demanded lower compensation. Some of those difficulties still exist, and employers often

UNIT VII STUDY GUIDE

Discrimination in Employment on the Basis of Age and Disability

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have to prove that they did not terminate an employee on the basis of his or her age but rather because the employee could no longer perform the job as required because of physical or intellectual or training deficiencies. As to situations when an employer simply wants to reduce costs by terminating a highly paid employee and replacing him or her with a younger and lower paid employee, courts have shown a tendency to allow termination of older employees strictly for economic reasons (Moran, 2014). Other issues for employers trying to avoid age discrimination have also arisen. For instance, is a company policy that requires employees to retire when they reach a certain age the basis for a claim of discrimination based on age? The answer generally is that mandatory retirement ages are a form of age discrimination. As a result of court decisions to that effect, some employers offered older employees attractive retirement packages in an effort to entice those workers into retiring. When those tactics have been challenged in court as another form of age discrimination, the courts have generally found that the offer of such retirement packages do not constitute age discrimination as long as the employee actually has a choice of taking the retirement package or continuing to work (Moran, 2014). Another issue involving discrimination in employment not addressed in the Civil Rights Act was the issue of discrimination in employment on the basis of disability. Initially, this was not considered to be an issue because employers were understood to need employees who could perform the functions of the jobs they were hired to do, and employers understandably were not interested in hiring people who suffered from disabilities because those people were viewed as not being able to perform the necessary job functions. However, as the perception of the disabled changed and it became better understood that a person with a disability was often not completely disabled and could perform certain job functions, the Americans with Disabilities Act (ADA) was enacted in 1990, and among other things, prohibited employers from discriminating against those with disabilities (Moran, 2014). While it seems fair that those with disabilities should not be discriminated against, in practice sorting out what duties the ADA requires of employers has not been easy. For instance, what constitutes a disability has been, and still is, a difficult question in some cases. There are some conditions such as the loss of a limb or blindness that are clearly disabilities, but other conditions such as alcoholism or pregnancy or obesity are not what are typically thought of as disabilities. However, courts have said that alcoholism and pregnancy and obesity and many other conditions that might not be thought off as disabilities are disabilities under the ADA. Additionally, once a condition is determined to be a disability, does that mean employers have to hire applicants no matter what their disability and how that disability affects their ability to do the job? The answer is no, employers can still refuse to hire someone whose disability makes it difficult or impossible to perform the functions of a particular job. For example, no employer would be required to hire someone as a truck driver if that person is blind. However, the ADA does require that employers make reasonable accommodations for applicants and employees with disabilities so that they can participate in meaningful work. However, what constitutes a reasonable accommodation is not specifically spelled out in the ADA and depends on the specific facts. For instance, an employer might make as a reasonable accommodation to an employee who must use a wheelchair, relocating that employee’s workstation to an area that is easily accessible by wheelchair, or an employer might have to install voice recognition software for an employee who uses a computer but who does not have use of his or her hands. Of course, the accommodation that the employer is required to make for an employee with a disability is only required to be reasonable, so an accommodation that might allow an employee with a disability to do a certain job but that would cause an undue hardship or expense on the employer is not required of the employer (Moran, 2014).

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

River, NJ: Prentice Hall.

Learning Activities (Non-Graded) Case Study Please locate and read Case 17.5, Pam Huber v. Wal-Mart Stores, Inc., found on page 413 of the textbook. Once you have read and reviewed the case scenario, respond to the following questions:

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1. Do you agree with the court’s decision? 2. Was it the intent of the ADA to require employers to give preference to disabled workers or to treat

them equally? 3. Do you believe the decision in this case was ethical?

Your response should be a minimum of 700 words in length. You are required to use at least your textbook as source material for your response. All sources used, including the textbook, must be referenced; paraphrased and quoted material must have accompanying citations per APA guidelines. Non-graded Learning Activities are provided to aid students in their course of study. You do not have to submit them. If you have questions, contact your instructor for further guidance and information.

Key Terms 1. Age discrimination 2. Disability 3. Disability discrimination 4. Disability harassment 5. Layoffs 6. Major life activity 7. Mandatory retirement age 8. Reasonable accommodation 9. Voluntary retirement packages