The following article provides a description of employment law: (This Article referenced in pertinent part)
The employment policy of the United States over the course of the twentieth century and into the twenty-first evolved to emphasize greater inclusion of all people seeking employment. The American workforce has grown dramatically and has diversified to include more women and minorities. These changes began with the massive entry of women and African Americans into the workforce during World War II. The number of minorities in the labor force will continue to increase in the twenty-first century primarily because of immigration and also because of federal policies that encourage minority hiring and promotions. The number of older Americans in the workforce will also increase, due to the rising age of the American population and the erosion of retirement benefits. New employment laws place obligations and limits on employers and confer new rights on prospective and present employees. Because these developments affect all of us, we should be acquainted with these rights and obligations and be aware of the new problems that arise in a changing labor force.
BASIC FEDERAL RIGHTS
Congress has provided many rights for job applicants and employees to ensure that all Americans have an equal opportunity in securing employment and gaining advancement. Under some of the basic employment rights provided by Congress since 1963, it is unlawful for employers to:
1. discriminate in employment on the basis of race, color, religion, sex, or national origin, provided the employer has a workforce of at least fifteen persons (Title VII of the Civil Rights Act of 1964);
2. not pay male and female employees equally when they perform the same or substantially similar kinds of work (the Equal Pay Act of 1963);
3. use age as a determining factor in hiring, promoting, or discharging employees age forty and over, where the employer employs more than twenty employees (the Age Discrimination in Employment Act of 1967);
4. discriminate against persons with disabilities who are otherwise qualified, with or without reasonable accommodation, to perform the essential functions of a job (the Americans with Disabilities Act);
5. discriminate against Vietnam veterans if the employer is a contractor or sub-contractor of the federal government and its contracts equal or exceed $10,000 (the Vietnam Era Veterans Readjustment Assistance Act);
6. discharge an employee for reporting health or safety violations on the employer’s premises (the Occupational Safety and Health Act);
7. require the employee to work in an unsafe or hazardous area without providing adequate safeguards (the Occupational Safety and Health Act);
8. deny most employees the right to take leave to provide care for a child, spouse, or other close relative in a medical emergency or related to the birth or adoption of a child (the Family and Medical Leave Act).
The Civil Rights Act of 1991 made it easier for employees to bring charges of discrimination in hiring, promoting, or firing against an employer. The responsibility for disproving a charge is now on the employer. And, if the court finds workplace discrimination, the employee is entitled to receive payment for damages and for jury trials. The court can also order the employer to rehire, promote, or reassign the employee to whatever job he or she lost because of the discrimination.
Most states also have placed limits on employer actions, enacting laws that address many of the same issues. For example, almost all states have statutes barring discrimination based on race, color, national origin, religion, and sex. Many states also prohibit other types of discrimination (for example, discrimination based on ancestry, marital status, or sexual or political orientation). In employment law, the federal statutes provide the minimum protections for employees, but many state laws provide employees with additional rights and place greater limitations on employers.
LIMITATIONS ON EMPLOYERS’ RIGHTS
By law, an employer cannot discriminate against employees or prospective employees. An employer who asks, either on an employment application form or in an interview, about an applicant’s race, color, sex, religion, national origin, age, marital status, childbearing plans, disability, military service record, or arrest record and then uses the information for an employment decision may be violating federal or state anti-discrimination employment laws. Any employer who advertises a preference for applicants who are members of certain groups (for example, white, female, or Christian) may be unlawfully discriminating against individuals who are not hired.
Employers may be found to be discriminating against employees in two ways. A court may find that an employer treats some people better than others because of their race, color, religion, sex, national origin, age, or some other characteristic. This is called “disparate treatment.” For example, a court may investigate a company that has been known to pass over its African American employees for managerial positions, even though it does not have a written policy of not hiring blacks for management.
A court may also find that although an employer’s employment practices look neutral in their treatment of different groups, they actually are harsher on one group or another. This is called “disparate impact.” For example, a court would question a height and weight requirement used to exclude applicants for a job as a cook. Although a height and weight standard could be justified as a valid business reason if it were clearly related to the physical demands of a job, such as logging, there is no legitimate reason why a cook must be a certain height or weight. And although requiring a cook to meet a height and weight requirement may seem neutral—it wouldn’t explicitly require a cook to be white or male—it would have a disproportionate impact on women and people of Asian descent, for example.
Sometimes an employer has a legitimate reason to reject an applicant because of a characteristic. For example, some courts have permitted state prisons to choose to employ only males to guard male prisoners (and female guards for female inmates) where matters of the personal privacy of the inmates are of concern.
Anti-discrimination law continues to evolve to meet new challenges in the twenty-first century. For example, to guard against the misuse of genetic information, which may include information from a genetic test as well as from family medical history, thirty-one states have enacted statutes specific to genetic discrimination in employment. In addition, genetic discrimination has been prohibited in federal employment by an Executive Order signed by the President in February 2000. Under the Executive Order, federal executive agencies cannot use genetic information or family medical history to make employment decisions. Congress also is moving to act in this area. On February 17, 2005, the Senate passed the Genetic Information Nondiscrimination Act of 2005 and moved the bill to the House of Representatives, where it remained in committee as of May 2006.
Another evolving area of anti-discrimination concerns workers’ sexual orientation and gender identification. In thirty-four states, it is legal to fire someone based on their sexual orientation; in forty-four states, it is legal to fire someone based on gender identity. However, employers themselves are changing their policies to provide basic protection to gay, lesbian, bisexual, and transgender people in the workplace. Only one of the Fortune 50 companies—ExxonMobil—does not have a sexual-orientation anti-discrimination policy, and 420 of the Fortune 500 companies include sexual orientation in their anti-discrimination policies. The federal government is lagging behind in this area. The Employment Non-Discrimination Act (ENDA), first introduced in Congress in 1996, would expand the nondiscrimination requirement found in Title VII and other laws to include sexual orientation. However, as of May 2006, it had not been reintroduced to Congress for consideration.
(article referenced in pertinent part)
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