Employees' Rights (part A)
by
by
Charles Lamson
Many federal and state laws, municipal ordinances, and court decisions grant specific rights to employees. However, not all laws apply to all employees. State laws, court decisions, and ordinances vary. Some rights extend to all or almost all employees, while others may extend only to those in specified industries. The law is constantly extending rights to cover ever larger numbers of workers. Some of these rights include rights against discrimination on specified bases, the right not to be subjected to certain invasive or offensive tests, and various protections such as for taking leave, receiving notification of plant closing, and being protected from secondhand smoke.
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Discrimination
Federal laws protects employees from discrimination on a number of grounds. Some laws prohibit discrimination on only one basis, while others protect on many bases. These laws include the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.
Civil Rights Act of 1964
The most important law governing employment discrimination and also harassment on the basis of race, color, religion, sex, and national origin is Title VII of the federal Civil Rights Act of 1964. This act applies to every employer engaged in an industry affecting interstate commerce who has 15 or more employees and to labor unions with 15 or more members. It does not apply to the U.S. government except the Congress or certain private membership clubs exempt from federal taxation.
This law makes it an unlawful employment practice for an employer to fail to hire, to discharge, or to in any way discriminate against anyone with respect to the terms, conditions, or privileges of employment because of the individual's race, color, religion, sex, or national origin. Discrimination because of sex includes discrimination because of pregnancy, childbirth, or related medical conditions. The employer also may not adversely affect an employee's status because of one of these factors. In addition, it is an unlawful employment practice for an employment agency or a labor organization to discriminate, classify, limit, or segregate individuals in any way on any one of these bases.
When a person sues under Title VII, the discrimination is usually claimed on either of two theories. These theories are disparate treatment and disparate impact.
Disparate Treatment. In a discrimination case on the ground of disparate treatment and employment, the plaintiff alleges that the discrimination was against the plaintiff alone and was because of the plaintiff's membership in a protected class. A protected class is any group given protection by antidiscrimination laws, such as groups based on race, color, religion, sex, or national origin and protected by Title VII. Disparate treatment is basically intentionally different treatment. That is, women are treated differently than men, blacks are treated differently than whites, and people of one religion are treated differently than people of another religion, solely because of their sex, race, or religion, respectively. The plaintiff must show the employer acted with the intention of discriminating. Trying to make a case by showing direct evidence of discrimination or by showing:
Once plaintiffs prove these four points, employers must offer a nondiscriminatory reason for their actions. If such reasons can be offered, plaintiffs must then show that the adverse treatment was because of their membership and one of the protected classes---that the employer intended to discriminate.
Disparate Impact. To prove a discrimination claim based on disparate impact, an employer must show that an action taken by the employee that appears fair, nonetheless negatively and disproportionately affects a protected class of employees. An important difference between this theory and disparate treatment is that no intent to discriminate need be shown for a disparate impact. The action complained of could be a testing policy, an application procedure, a job qualification, or any other employment practice whose adverse effect on employees is significantly greater on the members of a protected class than on employees that are not in that class.
Sexual Harassment. Courts have held that the Title VII prohibition against discrimination on the basis of sex protects an employee against an employer who engages in or allows unwelcome sexual advances that create a hostile work environment. A hostile work environment exists when harassing conduct alters the terms or conditions of employment, creating an abusive work atmosphere, and it is based on the victim's membership in a protected class. Economic harm does not necessarily have to be proved. An employer can be liable for harassment by coworkers if the employer knows about the harassment and does not take prompt and appropriate corrective action.
In order to prove that the work environment was hostile, an alleged victim of sexual harassment must show that the environment was one that an objectively reasonable person would find abusive. This means that any reasonable employee would find the environment abusive. Such a requirement protects employers from overly sensitive employees who, for example, might feel that one isolated comment from a coworker created an abusive environment. In addition, victims themselves must find the environment abusive. A victim who is less sensitive than reasonable employees would probably have to have a more abusive work environment before a claim of sexual harassment would be upheld. If both of these requirements are met, the victim need not show psychological injury---the hostile work environment alone is actionable. 
Although many types of actions are prohibited under Title VII, to be actionable, the victim must be affected because of membership in a protected class. Behavior could discriminate or create an abusive work atmosphere, but only that behavior based on the victim's membership in a protected class is actionable. For example, a person could be teased about living in a high-rise apartment, having short hair, long hair, a pierced nose, driving a particular type of car, having freckles, or being tall. Even if they are insensitive or designed to humiliate, as long as the court does not find the comments are based on membership in a protected class, they are not actionable under Title VII.
Successful plaintiffs in Title VII cases are entitled to a remedy that would put them in the same position they would have been in if the discrimination had not occurred. This might include some kind of corrective action by employers, posting of notices about sensitivity training, reinstatement, promotion, payment of lost benefits, and attorney fees. If the discrimination is intentional, the plaintiff may recover punitive damages.
The act established the Equal Employment Opportunity Commission (EEOC), which hears complaints alleging violations of this and other laws. Individuals may file the complaints or the EEOC itself may issue charges. If EEOC verifies the charge, it must seek by conference, consolation, and persuasion to stop the violation. If this fails, the EEOC may bring an action in federal court. If the EEOC finds no basis for a violation, the employee may still sue the employer in court; however, the employee has the burden of hiring a lawyer and pursuing the case.
Equal Pay Act
Recognizing that women were frequently discriminated against in the workplace by being paid less than men were paid for the same work, the federal government enacted the Equal Pay Act of 1963. As an amendment to the Fair Labor Standards Act, the law applies to employees covered by that act. The Equal Pay Act measures that requires that employers pay men and women equal pay for equal work. The law prohibits employers from discriminating on the basis of sex by paying employees at a rate less than the rate at which employees of the opposite sex are paid for equal work. To be equal work, the jobs must be performed under similar working conditions and require equivalent skill, effort, and responsibility.
An employer is not required to pay employees at the same rate if the payments are made on the basis of:
In addition to its application to employers, the Equal Pay Act also prohibits labor unions from making or attempting to make employers discriminate against an employee on the basis of sex. Although the law was intended to help women, it is written in such a way that it requires equal pay for equal work and neither men nor women may be preferred.
Age Discrimination in Employment Act
In order to protect persons age 40 or over from employment discrimination, the federal government enacted the Age Discrimination in Employment Act (ADEA). This statute prohibits arbitrary age discrimination by employment agencies, employers, or labor unions against persons aged 40 or above. Employers are prohibited from firing or failing to hire persons in this age group, and they may not limit, segregate, or classify their employees so as to discriminate against persons in this age group solely because of their age. The firing can be an actual termination or a constructive discharge.
The ADEA does not prevent an employer from ever considering an employee's age or age-related criteria. It prohibits arbitrary discrimination, which occurs when age is considered despite its complete irrelevance to the decision being made. The law allows age discrimination when age is a true occupational qualification, such as the rule that commercial pilots cannot be more than 60 years old. In this case the age limit is related to very significant safety considerations affecting the lives of millions of people. Company seniority systems are also permitted even though they may have an impact on employees based on their ages.
An employee who wishes to pursue an ADEA claim must file a claim with the EEOC within 180 days of the occurrence of the adverse employer action. If the EEOC does not find the claim valid, the employee may bring a court action against the employer. A successful employee could recover back pay, lost benefits, future pay (called front pay), and, at the discretion of the court, attorneys fees. In addition, the court could order reinstatement, promotion, or, for an individual denied a job, hiring. If violation of the ADEA was willful, liquidated damages equal to the back pay award is automatically awarded.
This loss excludes from the definition of employee persons elected to state or local office and persons appointed at the policymaking level.
Americans with Disabilities Act
The Americans with Disabilities Act of 1990 (ADA), which applies to employers of 15 or more employees, prohibits employment discrimination against qualified people with disabilities. An employer may not discriminate because of the disability in job application, hiring, advancement, or firing. For the purposes of the ADA, a disability requires two elements:
It is not enough simply to have impairment and be unable to perform one specific job. The impairment must significantly limit a major life activity such as being unable to perform a class or broad range of jobs. A major life activity includes such actions as speaking, seeing, hearing, breathing, caring for oneself, walking, performing manual tasks, working, sitting, lifting, reaching, and standing.
To determine whether other impairments constitute a major life activity, courts consider the type and severity of the impairment, the duration of the impairment, and any permanent or long-term impact of the impairment. Thus, temporary, short-term, or non chronic impairment with no long-term impact are not disabilities. Such impairments include broken bones, flu, sprains, appendicitis, and concussions. In addition, specifically excluded from the definition of a disability are compulsive gambling, kleptomania, pyromania, sexual behavior disorders, and current illegal drug users and alcoholics.
In addition, a person who has a history of an impairment that limits a major life activity, or is thought to have such impairment, is eligible for the benefits of the ADA. Thus an employee can obtain the benefit of the ADA not because of actual impairment, but because the employee is treated by the employer as having a limiting impairment.
Once a job applicant or employee has been identified as disabled according to the law, it must be determined if the individual with a disability is otherwise qualified for a particular job. If qualified, employers are required by the ADA to make reasonable accommodations to allow the disabled person to perform the essential functions of the job. The reasonable accommodation might include rescheduling employees, raising the height of desks to accommodate wheelchairs, acquiring equipment, or hiring a reader or sign language interpreter. An employer does not have to accommodate a disabled person if the accommodation would impose an undue hardship on the business. Violation of the ADA allows a qualified employee to recovery, such as reinstatement, back pay, compensatory damages, punitive damages, and attorney's fees.
*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, PGS. 343-349*
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