Employment Law in the US - Essay Example

Employment Law Paper Employment law in the US due to several diversity issues brought on in the recent years due to the multi ethnic nature of the American work environment is aimed mostly at the prevention of discriminatory racial profiling of minorities by law. The current version of the Civil Rights Act 1964 and 1991 have their roots in the Civil Rights Act 1865 which sought to prevent such discrimination and was later on supplemented by the Civil Rights Act of 1871 to include public vacancies based on constitutional rights of the ethnic minorities and races. US law emphasizes upon Equal opportunity employment and in this vein there are a number of Federal Equal Employment Opportunity (EEO) Laws consisting of Title VII of the Civil Rights Act of 1964 (Title VII) which prohibit employment discrimination based on race, color, religion, sex, or national origin. In a similar vein the Equal Pay Act of 1963 (EPA), ensures the prevention of sex-based wage discrimination, the Age Discrimination in Employment Act of 1967 (ADEA), which was promulgated for the protection of individuals who are 40 years of age or older. Disabled individuals are protected under Title I and Title V of the Americans with Disabilities Act of 1990 (ADA), which is aimed at the prevention of employment discrimination against disabled individuals who are skilled in the private and public sector. Furthermore sections 501 and 505 of the Rehabilitation Act of 1973 are in a similar spirit thereby protecting employees from disability discrimination in federal law and the Civil Rights Act of 1991 provides for monetary redressal for complaints of intentional employment discrimination. Together these laws prohibit the discriminatory practices involving the hiring dismissal, recruitment through advertising, job testing, access to pay, benefits ,facilities and retirement and disability on the basis of race, color, religion, sex, national origin, disability, or age. This involves retaliatory action against individuals for complaining discriminatory practices, basing decisions of stereotypes and discrimination based on membership of a particular racial, ethnic, or religious group. Furthermore discrimination under this Act includes actions which are based on the birthplace , ancestry, culture, or linguistic characteristics of an individual. Title VII also deals with religious accommodation and more importantly sex discrimination including complaints of same sex discrimination. Furthermore in terms of discrimination against parents or parents-to-be the Family and Medical Leave Act and the Pregnancy Discrimination Act seek to prevent problems for women at the work place based on their constitutional right to have a family, which includes the Pregnancy Discrimination Act. The history of this Act is based upon the 1976 United States Supreme Court decision pertaining to an employers failure to provide disability benefits to pregnant women employees not violating Title Veii’s prohibition on sex discrimination1. This decision was followed by the court holding that the employer was in violation of Title VIIs of the Civil Rights Act when an employee was demoted after she returned to work after having a maternity leave2.These decisions led to confusing results as it now meant that omission of granting a benefit was not discrimination but only imposing a burden upon a pregnant female employee was one. This also meant that male workers could enjoy benefits which female pregnant employees could not. Based on these unfair implications the Pregnancy Discrimination Act in 1978, amended Title VII through 42 U.S.C.3 and pregnancy was included as a prohibited head of discrimination. Therefore all the above mentioned laws and many others form the backbone of employee protection legislation in the US. The company I worked for previously (name omitted for confidentiality reasons) had a slight problem in the adoption of such anti discriminatory laws due to the majority of its work force’s demographical characteristics being that of white men aged 30 to 50 years of age with only 4 % of the work force comprising of women. This was a Chinese multinational which was also working as a federal contractor for public procurement services occasionally and it had paid little attention in the early nineties to its discrimination laws due to the nature of its workforce. However the new batch of applicants from the year 2000 -2003 was mostly college graduate women and in 2001 the company had around 5% disabled employees. At this point the HRM had not paid much attention to diversity issues which would start up due to the massive ethnic immigration to the local town. The company policy was that each of the employment contracts contained an Arbitration clause employment disputes to be settled by binding arbitration. A female employee has a heart seizure and was subsequently fired by the Employer.2 weeks later the company received a legal notice from her lawyer who filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) alleging a breach of Title I of the Americans with Disabilities Act of 1990 (ADA). It was held by EEOC that her discharge was indeed in violation of the Act and she obtained injunctive relief from the court with in a month and the employers had to under a court order restate and amend their employment, hiring and firing policies. The employers had to bear the burnt of the Civil Rights Act 1991 and 1964 as well because previously a white manager who was senior in rank to that lady had been allowed to change his branch and retain his office despite his lung surgery which meant he would be able to take on less exhausting tasks. Yet the lady who was Indian and had suffered a seizure was fired immediately. The employer had to offer her a written apology and she was re-hired after an out-of-court settlement as she was now threatening to sue for sex and race discrimination along with disability discrimination. Indeed if her petition for back pay, reinstatement, and compensatory punitive damages for malicious and reckless conduct by the employer had actually succeeded she was looking at at least 10,000 dollars in damages. Interestingly the Arbitration clause was held to have no effect at all to her access to EEOC. This rule is also contained in a similar recent case.4If the Indian lady was not an employee but merely an agent of the company or a hired contractor it can be seen from a perusal of the employment law that things would have been slightly different. This is because the definition of “employee” has after much contemplation by the case law and legislation has been extended to independent contractors at times based on the “economic reality argument” (refer to the Fair Labor Standards Act (FLSA)).If she was an agent or an independent contractor the law would actually be looking at whether she was economically dependant on her employer or just a completely separate business entity. A person in her position would still be classified as an employee for the purposes of the application of the Discrimination Legislation unless it could be proved that her business was independent enough to be competing with and working with other customers in the open market. The last query pertains to the assumption whether her membership of a union or the factum of her being a party to a collective bargaining contract would have made a difference to her position as an employee bringing a discrimination action. It is submitted that this would have not been the case as the law extends to all trade union and non-union employees. Where as she could have benefitted immensely from the collective bargaining tactics of a strike her rights to legal remedies would not be strengthened or compromised based upon the pressure exerted on the employer through strikes etc. In conclusion the above mentioned is an analytical account of an employment law based issue that took place at my previous occupation. All the aspects and variants have been duly contemplated as required and the legal position and remedies of the main subject have been duly explained. References Farrington and Yancey (1997), Employee or independent contractor? (Brian T. Farrington, JD and William F. Yancey, Ph.D., CPA) AutoInc. Magazine ®, Vol. XLV No. 10, October 1997 Guerin and Delpo (2006), Essential Guide to Federal Employment Laws (Paperback) ,Publisher: Nolo. Read More