Anti-Discrimination Laws and Their Shortcomings

Anti-Discrimination Laws and Their Shortcomings

Katharine I. Ransom

Southern New Hampshire University

MBA-610 Business Law

Attorney Saheed W. Dahar II

Saturday, April 18, 2015

Anti-Discrimination Laws and Their Shortcomings

A business cannot function without employees. They are essential to production of the company’s goods or service, to maintain the facilities, to provide customer service, and to provide other business support functions. There are many legal aspects to running a business, from the articles of incorporation to legal responsibilities and rights of the owners and managers. Since employees are such an important aspect to business functions and instrumental in the growth of the company, there are many legal doctrines that organizations are required to follow. They are in place to protect the business and the employees in the event of a dispute. Discrimination against employees is one practice that affects the environment of the organization and the success of the company, which is why anti-discrimination laws were put in place, although, they have not solved all of the discriminatory issues facing today’s workforce.

Law and Business Decisions

        As the country progressed and became more liberal, several anti-discrimination laws were enacted. To fully understand how they affect business decisions and workplace environments, one must have a good understanding of the laws.

The Equal Pay Act of 1963 (EPA)

        The EPA came about in 1963 and it prevents discrimination based on sex and gender in employment compensation. If an individual has equal employment to a male, in the employment environment, that requires equal skill, effort, and responsibility of the employee and is performed under similar working conditions, there cannot be discrimination between pay and other benefits provided to the individuals. The EPA also prevents women from earning more than their male counterparts, in the same position. The actions taken under the EPA are based heavily on statistical information about the past practices of the employer. The plaintiff, in bringing an action, would rely heavily on the statistical information to show, historically, that there has been lesser pay for men or women, in the situation, as compared to their counterpart. Generally, when an employee finds out about the discriminatory practice or the discriminatory compensation, they have 180 days to bring the action. However, the Lily Ledbetter Fair Pay Act of 2009 extended the time frame, giving the individual 180 days from the time the discriminatory practices were discovered.

Title VII of the Civil Rights Act of 1964 (Title VII)

The Title VII act is one that attempted to eliminate discrimination based on certain protected classes. Those classes are race, color, religion, sex, and national origin. Title VII applies to employers of 15 or more employees, labor unions, and other types of employees related to the federal and, sometimes, state government. Under Title VII, an employer cannot discriminate against those protected classes, in certain employment actions, such as, discharge or fire, refusal to hire, unequal compensation, and terms, conditions, or privileges of employment.

The act came about in 1964, but it has been amended numerous times. The act created the Equal Opportunity Commission (EEOC), which is the commission that manages actions or claims under Title VII. The EEOC has the primary responsibility for enforcing every aspect of the act. In 1972, there was an addition to the Civil Rights Act that allowed the EEOC to affirmatively bring actions against employers based on discrimination against employees. The EEOC could represent the employees who were discriminated against in actions against the employer. The EEOC and Title VII apply in the federal context, but there are also state anti-discrimination laws in place. Generally, states have agencies that are similar to the EEOC that manages claims under state law. An employee may be able to bring an action an employer under state or federal law. The government will not adjudicate a claim in both jurisdictions at the same time. If a claim is filed as a state action, the EEOC will not follow through with the federal action until the state action is complete.

One notable defense for employers against conduct that could be discriminatory under Title VII is that the employer can show that there was a reason for the discriminatory conduct, a bona fide occupational qualification. This means that there had to be a good faith qualification for making a certain type of requirement of the employee.  Even though the discrimination against the employee was based upon a protected class, it was a business necessity to discriminate based on that factor. The act was amended again in 1991.

The Age Discrimination in Employment Act of 1967 (ADEA)

        The ADEA runs parallel to Title VII and states that an employer, that has 20 or more employees, cannot discriminate against an employee based on age. The ADEA only applies to employees who are 40 years old or above. Conversely, an employer can discriminate against an employee or can use age as a factor for hiring, or other employment decisions, if the employee is under 40 years old. Under Title VII, an employer can defend an action by showing a bona fide occupational qualification or business necessity, however, under the ADEA, an employer does not need to show that. An employer needs to show that the basis for the discrimination or disparate treatment of the employee was based on a factor other than age. Age can be a factor, but if the primary reason for treating an employee differently was a different factor, that is a defense. The employee cannot rebut the defense of showing there was a less discriminatory manner. Under the ADEA, the employee can ask for three remedies; reinstatement, lost wages, and sometimes consequential damages for psychological trauma. If the employer willfully violated the ADEA, there is a statutory remedy of double damages. However, there is no action to receive money damages against the state or federal government.

Title I and Title V of the Americans with Disabilities Act of 1990 (ADA)

        The ADA makes it unlawful, in a variety of contexts, to discriminate against a qualified individual who has a disability. Title I prohibits discrimination in the area of employment and it applies to employers with 15 or more employees. Under the ADA, a person is considered to be disabled if he or she actually has, or is thought to have, a physical or mental impairment that substantially limits a major life activity. Major life activities include, but are not limited to, seeing hearing, speaking, walking, breathing, learning, working, caring for oneself, etc. Someone with a temporary or minor condition would not be considered disabled. A qualified individual under the ADA is one who meets the legitimate skill, experience, education, or other requirements of an employment position, that he or she holds or seeks, and can perform the essential functions of the position with or without reasonable accommodation. A reasonable accommodation is a modification or adjustment to work or a job environment that enables the employee with a disability to perform essential job functions. The ADA does not require employers to undergo undue hardship to accommodate a disabled employee; an accommodation is reasonable if it is feasible or plausible. The law prohibits discrimination in all employment practices including job application practices, hiring, firing, promotion, compensation, training, and all other employment practices and activities.