EEOC Tackles Ageism in Academia

NOTE: Marymount Manhattan College subsequently entered a consent decree with the EEOC settling the law suit discussed below. Marymount agreed to pay $125,000 to Patricia Catterson and  to comply with the requirements of the Age Discrimination in Employment Act.  The decree also requires monitoring and training on anti-discrimination law. The decree will last for four years.  

It appears that the U.S. Equal Employment Opportunity Commission (EEOC) finally may be cracking down on what some say is blatant, rampant and unchecked age discrimination in academia.

The EEOC has filed an age discrimination lawsuit against an elite private liberal arts college, Marymount Manhattan College of New York City, because it allegedly refused to hire a choreography instructor for a tenure track assistant professorship because of her age.

Marymount initially selected a 64-year-old choreography instructor and two other applicants as finalists for an assistant professorship in dance composition.  After determining that the 64-year-old was the leading candidate, the EEOC said, Marymount’s search committee expanded its search to include a less qualified, 37-year-old applicant as a fourth finalist because it considered her to be “at the right moment of her life for commitment to a full-time position.”  Marymount hired the 37-year-old applicant.

Last year, Nicholas Spaeth, 62, the former state attorney general for North Dakota, filed several groundbreaking lawsuits against law schools, including the Michigan State University College of Law in East Lansing, Michigan, for  allegedly violating the Age Discrimination in Employment Act.

Spaeth, a magna cum laude graduate of Stanford Law School, says he couldn’t even get an interview for several advertised teaching position at the law school.

Spaeth has served as general counsel at three publicly held companies with billions in assets, argued a groundbreaking tax case before the U.S. Supreme Court, and was a partner at three law firms. He also taught for four years at the University of Missouri School of Law, three years as an adjunct and one year as a visiting professor.

He applied to Michigan law school, which ended up hiring three attorneys for the 2011-2012 school year who graduated in 2006, 2005 and 2001, respectively. One of the new hires had no experience as a legal practitioner. The applicant who was hired by Michigan to teach in Spaeth’s area of specialty, corporate taxation, had three years of practical experience as an associate in a law firm.  Spaeth, who served two four-year terms as North Dakota’s Attorney General, is a former general counsel of H & R Block.

Spaeth earlier filed complaints with the EEOC against more than 100 law schools that also did not offer him an interview.  The EEOC dismissed most, if not all, if Spaeth’s complaints.

One of Spaeth’s age discrimination lawsuits in March passed a critical stage in the legal process. A federal judge denied a motion by Georgetown University’s law school to dismiss Spaeth’s claims that the law school violated federal and District of Columbia laws when it failed to offer tenure-track teaching job. “It… remains plausible that Georgetown could be liable for age discrimination,”   wrote U.S. District Judge Ellen Segal Huvelle in her opinion in Spaeth v. Georgetown University, United States District Court, District of Columbia, No. 11-1376..

The EEOC’s Marymount suit was filed in U.S. District Court for the Southern District of New York (Civil Action No. 12-cv-2388 (JPO) after the EEOC unsuccessfully sought to settle the matter.

“Our suit charges that age was the deciding factor in this case,” said EEOC trial attorney Justin Mulaire.  “Under the law, age has no place in hiring decisions — and tenure-track positions in academia are no exception.”

The Age discrimination against employees and job applicants who are age 40 or older is a violation of the Age Discrimination in Employment Act (ADEA).

Elizabeth Grossman, the regional attorney of the EEOC’s New York District Office, said, “Older workers have the right to be evaluated based on their abilities and not based on their age.  The EEOC is committed to combating bias against older workers in all phases of employment and in all types of employment settings.”

Older Workers Vulnerable to Age Discrimination

daggerThe U.S. Supreme Court stuck a dagger in the heart of the Age Discrimination in Employment Act a few years ago in its decision, Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009).

Prior to Gross, the same standard of proof applied equally to all workers who faced illegal discrimination on the job. The Court in Gross established a far higher standard of proof for plaintiffs in age discrimination cases than exists for plaintiffs in cases alleging discrimination based on race, sex, national origin and religion.  This has left older workers more vulnerable to age discrimination.

A bi-partisan bill was introduced in the U.S. Senate in March to rectify this wrong. Under the Protecting Older Workers Against Discrimination Act , if a victim can show that age discrimination was a “motivating factor” behind a decision, the burden shifts to the employer to show it complied with the law. The bill is co-sponsored by Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) and Vermont Senator Patrick Leahy (D-VT).

After Gross, older workers who filed age discrimination cases were required to prove that age discrimination was the “but for” cause of their termination (i.e., “but for” age discrimination, they would not have been demoted or fired.)

Alternatively, employers could point to any other “legitimate non-discriminatory” reason for firing the Plaintiff to avoid liability.  (“Sure we thought the old fogey was an over-paid dinosaur but he failed to follow company procedure when he called in sick one day so he’s gotta go!”)

Under the proposed bill, it wouldn’t matter if the employer had more than one motivating factor – if one of those motivating factors was age discrimination, the employer could be held liable.

The  Court reasoned backwards in Gross.  The Court said that Congress amended Title VII of the Civil Rights Act of 1964 to permit mixed-motive claims in discrimination claims involving race, color, religion, sex and national origin. So the fact that Congress failed to amend the ADEA to permit mixed-motive claims meant that Congress intended to disallow mixed -motive claims.  The Court threw out decades of precedent that treated age discrimination like every other invidious form of discrimination and left countless older workers without real protection against age discrimination.

The Gross decision has also had reverberations in a wide range of civil cases in addition to age discrimination, including discrimination based on disability.

Harkin is Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee while Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.

DECK STACKED IN FEDERAL COURTS?

Note: The media office of the Administrative Office of the U.S. Courts has failed to respond to a request for comment about this blog entry. PGB

Workers who bring employment discrimination cases in federal court are not just paranoid. Apparently, the deck really is stacked against them!

(Isn’t this discrimination in itself?)

The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy co-sponsored a symposium April 23, 2012 to examine the high failure rates of plaintiffs in employment discrimination cases in federal courts.

Specifically, they discussed why employment discrimination cases are more likely to be summarily dismissed by federal judges through rulings on pre- and post-trial motions.  One factor is believed to be  U.S. Supreme Court decisions (Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal) that raised the quantum of facts that a plaintiff must plead to avoid a motion to dismiss.

“A substantial and growing body of evidence, both empirical and anecdotal, shows that civil rights cases, and in particular those alleging employment discrimination, are disproportionately susceptible to dismissal before trial as well as to unfavorable  (judgment notwithstanding verdict)  motions after trial,” said the symposium planners.

Approximately 150 attended the symposium, including  retired Judge Nancy Gertner from the U.S. District Court for the District of Massachusetts. She said the message sent by Twombly and Iqbal is that courts should be more concerned with protecting employers from being falsely accused of discrimination than they should be with allowing discrimination to go unpunished, and that as a result, the courts effectively have repealed the protections of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination.  A report of the symposium is availble from the Employee Rights Advocacy Institute for Law and Policy.

A study by the Federal Judicial Center of summary judgment cases filed in seventy-eight federal district courts in 2006 found that federal judges granted requests by the employer for dismissal on a motion for summary judgment 73 percent of the time. This compares to a rate of dismissal of:

  • 53 percent in contract cases,
  • 54 percent in tort or personal injury cases
  • 70 percent in civil rights cases generally
  • 64 percent in prisoner cases
  • 53 percent in “other” cases, including antitrust (53%) and patent (47%) and trademark (50%).

See Joe Cecil & George Cort, Federal Judicial Center, Estimates of Summary Judgment Activity in Fiscal Year 2006 (2007).

Some district courts granted summary judgment motions in employment discrimination cases more than others. In the Ninth Circuit, which is based in San Francisco, CA, some courts granted summary judgment in employment discrimination cases 93% of the time. In the Eleventh Circuit, which is based in Atlanta, GA, some courts granted summary judgment in employment discrimination case 95 % of the time.

This is a trend that has been getting WORSE for years, according to Cornell Law School Professors Kevin M. Clermont and Stewart J. Schwab, authors of Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? 3 Harv. L. & Pol’y Rev. 103 (2009).

They write that the plaintiff win rate for employment discrimination cases in federal court from 1979-2006 was 15 percent, which was much lower than that for non-jobs cases (51%), possibly because of hurdles placed in jobs cases that do not exist in non-jobs cases.

Furthermore, the authors state that there was a startling 37 percent drop in the number of employment discrimination cases in federal district courts between 1999 and 2007.  They say the decline may be  because “federal courts disfavor employment discrimination plaintiffs, who are now forswearing use of those courts.”  In other words, fear of bias by federal judges may be discouraging  potential plaintiffs from even filing employment cases in federal court!

Plaintiffs who appeal their losses or face an appeal of their victory “again fare remarkably poorly in the circuit courts,” the authors write.  Defendant/employers in the federal courts of appeals have managed over the years to reverse forty-one percent of their trial losses in employment discrimination cases, while plaintiff/employees manage only a nine percent reversal rate.

Generally, it appears that employers do far better in federal courts these days than ever before. A 2010 study found  the U.S. Supreme Court under the leadership of Chief Justice John G. Roberts, Jr., has ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and  42 percent by all courts since 1953.

Some other sobering but well-documented observations from the Clermont/Schwab article:

  • Plaintiffs in employment discrimination cases are much more likely to have to go to trial, possibly because employers perceive the anti-plaintiff bias works in their favor and refuse to settle.
  •  “ … [E]mployment discrimination cases constitute one of the least successful categories at the district court level, in that plaintiffs win a very small percentage of their actions and fare worse than in almost any other category of civil case.”
  • “Defendants, in sharp contrast to plaintiffs, emerge from appellate court in a much better position than they were in when they left trial court. … we have unearthed an anti-plaintiff effect that is troublesome.”
  • “The bulk of employment discrimination cases turn on intent … The subtle question of the defendant’s intent is likely to be the key issue in a nonfrivolous employment discrimination case that reaches trial, putting the credibility of witnesses into play.  When the plaintiff has convinced the fact finder of the defendant’s wrongful intent, that finding should be largely immune from appellate reversal … Reversal of plaintiffs’ trial victories in employment discrimination cases should be unusually uncommon. Yet we find the opposite.”

It is unlikely that employment law cases are weaker than other types of cases. The authors note that many studies show that people are not anxious to sue except in egregious situations and that contingent-fee attorneys, as well as those looking to fee-shifting, are reluctant to bring questionable claims. They say the impact of other factors on the decline of employment discrimination cases in federal court —  such as alternative dispute resolution — is not known but is unlikely to have caused the precipitous drop.

The authors say the employment discrimination category has dropped in absolute number of terminations every year after 1998, when the total was 23,722.  They say the drop has gone virtually unnoticed and unexplained.

It is understandable that courts want  to place procedural limitations on  cases to avoid overcrowded dockets and to  safeguard judicial resources. However, it is obviously unfair (or worse) for judges to single out employees who allege discrimination for disparate treatment. Like any other plaintiffs, these plaintiffs have  no where else to go but the courts for justice and they have every right to expect a fair and impartial hearing.

In fact, Americans are guaranteed a right to a trial by jury in federal court cases under the Seventh Amendment of the U.S. Constitution.  Specifically, the Seventh Amendment states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Double Standard for Older Workers

It is much more difficult for older workers to prevail in federal discrimination lawsuits than for victims of race, sex, national origin, color and religion.

But why?

As Shakespeare said: “If you prick us, do we not bleed?”

The Age Discrimination in Employment Act (ADEA),  29 U.S.C. §§ 621 et seq., makes it  “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).”  The ADEA covers employees who are age 40 and older.

To prevail on an ADEA claim, however, the U.S. Supreme Court says a plaintiff must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).

In other words, the ADEA plaintiff must show that but for age discrimination, the employer would not have made the adverse job decision (i.e. demotion or dismissal)..

This is a far higher standard than required in Title VII of the Civil Rights Act of 1964, which covers discrimination on the basis of sex, national origin, color and religion.

In Title VII lawsuits, it is sufficient for the plaintiff to show that discrimination was a “motivating factor” in the adverse job action. The Title VII plaintiff is not required to show that age was the determining factor.

Once the Title VII plaintiff shows that the employer’s motivation included unlawful discrimination, the burden of persuasion shifts to the employer to prove that it would have taken the same employment action for a legitimate reason in the absence of discrimination.

The burden does not ever shift from the plaintiff to the employer in an ADEA case.

There has been discussion – but no action – in the U.S. Congress to adopt new legislation to establish the same causation theory for the ADEA that exists with respect to Title VII but so far nothing has happened except that older workers continue to lose lawsuits where they have shown they were victims of gross age discrimination.

By holding ADEA plaintiffs to a much higher standard than other discrimination victims, the U.S. Congress and the U.S. Supreme Court seem to be saying that  age discrimination is somehow less harmful than other types of discrimination. But where is the evidence for that?

Age discrimination is possibly more insidious today than it has been at any other time in history.  When older workers lose their job today, they may never find another job, let alone another job that is comparable to the one they lost. Many hurtle toward their retirement years unprepared, without sufficient funds or even health insurance.

According to a recent study by the Pew Charitable Trust, more than 42 percent of unemployed workers older than 55 had been out of work for at least a year in the fourth quarter of 2011 — the highest percentage of any age category. Only 21 percent of people under 25 are long-term unemployed. That number rises to 29 percent for ages 25-34; 36 percent for ages 35-44; and 39 percent for ages 45-54.

It’s no picnic for many older workers who remain employed either. They may be “stuck” in bad jobs. Employers know that older workers will find it difficult – if not impossible – to prevail in age discrimination lawsuits. And they know that older workers can’t afford to quit and face the risk of chronic unemployment.   This situation does not provide any incentive for employers to treat older workers with respect and dignity.

Not surprisingly, the number of age discrimination complaints filed with the Equal Employment Opportunity Commission has more than doubled in the past decade, to a total of 23,465 in 2011.

The real tragedy in all of this is the sense that many older workers —  who have spent a lifetime paying taxes and being good citizens — are denied equal protection by the very democratic institutions that are charged with  insuring equal protection for all.

New Record for Discrimination Claims

Employment discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) reached an all-time high in 2011.

A total of 99,947 charges of employment discrimination were filed with the EEOC in Fiscal 2011, compared to  99,922 in Fiscal 2010. This sets a new record for discrimination claims.

Once again, charges alleging retaliation under all the statutes the EEOC enforces were the most numerous at 37,334 charges received, or 37.4 percent of all charges, followed by charges of race discrimination ( 35,395) and sex discrimination (28,534).

Other allegations include:

  • Disability discrimination–25,742
  • Age discrimination—23,465
  • National Origin  discrimination – 11,833
  • Religious discrimination – 4,151
  • Color discrimination – 2,832
  • Equal Pay Act – 919
  • Genetic Discrimination Act – 245

The EEOC filed 300 lawsuits in 2011, which resulted in $91 million of relief.  Twenty-three of the lawsuits involved systemic allegations involving large numbers of people.

Through its combined litigation, enforcement, mediation programs, the EEOC obtained  $455.6 million in relief for private sector, state, and local employees and applicants,  an increase of more than $51 million from the 2010 fiscal year and a new record for the agency.

Of possible interest to workplace anti-bully advocates, the EEOC’s enforcement of the Americans with Disabilities Act (ADA) produced the highest increase in monetary relief among all of the statutes the EEOC enforces: the administrative relief obtained for disability discrimination charges increased by almost 35.9 percent to $103.4 million.  Back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes. Many of these ADA claims could be stress related – targets of workplace bullying suffer high levels of stress that are blamed for short-and long-term physical impairment.

The EEOC enforces Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act.

The fiscal year 2011 enforcement and litigation statistics, which include trend data, are available on the EEOC’s website at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm

Resolved … Don’t Be Evil

The vast majority of workplace bullies don’t think of themselves that way. They justify or make excuses about their behavior. However, I suspect that many workplace bullies – at least those who are not actual psychopaths or sociopaths – do know on some level that what they are doing is wrong.

Every manager should consider the following:

  • How would you feel if your mother, child or partner was treated the way you treat your target? Not so good? Then what you are doing is wrong.
  • Are you flattering yourself?  Are you really a perfectionist trying to get the best out of your workforce or are you a petty tyrant satisfying a personal need for power and control?  If the latter, your actions are damaging both the target and your employer.
  •  There is a fine line between workplace abuse and other forms of abuse, including intimate partner abuse, child abuse and elder abuse. Especially for those in a supervisory position, when you zero in on a subordinate target, visualize a small child who is about to be smacked.
  •  Yes, some employees deserve to be disciplined and/ or fired but there is a difference between exercising legitimate supervisory authority and bullying. No employee ever deserves to be treated disrespectfully or bullied.
  • If you are an employer who is using bullying strategically to avoid a legal obligation – such as paying workers compensation – you are taking a serious risk. Sometimes targets of bullying do not simply fade into obscurity. They hire lawyers and sue.  And whether they win or lose, you will pay.
  •  Bullies are “ fortunate” to work in the United States, which unlike many other industrialized countries for decades has ignored  overwhelming research that workplace bullying causes potentially severe mental and physical damages to targets. But times are changing. Educated employers do not tolerate bullying because they know that they ultimately pick up the tab in terms of needless turnover, absenteeism, higher health costs, litigation, etc.
  • If you are a Human Resources “professional” and you turn a blind eye when a worker complains to you about being bullied – or make things worse for the target – you are part of the problem.  You are acting unethically and doing a great disservice to your employer.

New research is showing that workplace bullies are often their own worst enemies.  American is growing less tolerant of this kind of management style.  It’s one thing if a manager gets an isolated complaint but it can quickly end a promising  career when there are multiple bullying complaints. For all of the above reasons and many more, I propose the following resolution for workplace bullies in 2012:

  DON’T BE EVIL!

U.S. Dept. of Justice Seeks Prosecutor Volunteers

(* Note: See Part 2 of this story, How the Justice Department Gets Away with It.)

 Are they kidding?

 The Office of the United States Attorney for the District of Connecticut is seeking applications from attorneys “who are willing to accept an unpaid temporary position” for up to a year doing legal research, drafting briefs, conducting hearings and trials, and attending judicial proceedings.  In other words, they’re seeking volunteer prosecutors who will work alongside paid prosecutors for nothing.

Only applicants with “outstanding academic records” will be considered.  Oh, and applicants must have at least one year of post J.D. experience.

 In what world is it ethically or morally sound to ask a law school graduate who is admitted to the bar of a state and experienced in the practice of law to work for up to a year gratis?

  It’s one thing to be an unpaid intern for a few weeks during the summer while attending law school to get experience and a line for the resume. It is quite another thing to be asked to labor alongside attorneys who are being paid, doing the same work, and meeting the same expectations. The word that comes to mind is exploitation.

One wonders what the U.S. Department of Justice would think about a large farming corporation that invites “volunteers” to work in the fields for a year for little or no pay?  (Is that legal?)

 These attorney volunteers are called “Special Assistant U.S. Attorneys (SAUSA).” They might as well be called “law-unteers.”

Connecticut is not alone in its quest for law-unteers. It’s a trend. Similar ads are posted by the U.S. Attorneys in Massachusetts, Wisconsin, Ohio, Michigan, Tennessee, Illinois, etc. (see http://www.justice.gov/careers/legal/attvacancies.html)

 The sad fact is that this “job” will appeal to  many recent law school graduates who cannot find anything better to do, after being sold a bill of goods by their law schools about a fictional legal job market with six-figure jobs aplenty for newly minted lawyers.

 According to the National Association for Law Placement, only about two-thirds of spring 2010 graduates had jobs requiring law licenses nine months later, a 15 year low. Overall, 87.4 percent of the class of 2010 had any sort of job nine months after graduation, including 11 percent who were working part-time or holding temporary jobs.

 Meanwhile, the typical student leaves law school nearly $100,000 in debt.  The situation is so bleak that the word is out and law school applications have dipped by about 10 percent.

Of course, there are young lawyers with rich parents who will gladly subsidize their offspring for a year of law-unteering at the U.S. Attorney’s Office. However, many lawyers who had to scrape through law school and are burdened with crushing debt will have to work a second or third job so they can law-unteer.

 The unstated premise of all of this is the dream – of a secure position in a respected profession that pays a decent salary and benefits and/or of working as a federal prosecutor on behalf of the United States of America.

 In its advertisement, the Connecticut U.S. Attorney’s Office says: “The SAUSAs will not be hired by this office as Assistant U.S. Attorneys at the conclusion of the SAUSAs’ terms. However, SAUSAs may apply for AUSA positions in the office after completing service as a SAUSA.”

 One might translate this to mean that any lawyer who fails to take advantage of  the incredible opportunity to work for nothing for a year will be at a disadvantage when competing for a full-time position because s/he will lack the experience of the law-unteer.

 And then, the coup de grace. The Connecticut U.S. Attorney states that the “preferred qualifications” for this law-unteer position are: “Prior litigation experience is preferred, but the positions are open to lawyers who are finishing judicial clerkships and to highly qualified lawyers who have recently graduated from law school.”  (Emphasis added).

The vast majority of recent law school grads and lawyers finishing judicial clerkships are under the age of 40. Suppose a retired attorney would like the opportunity to work for the Justice Department without salary? If you happen to be an older (egad!) attorney who is highly qualified it, forget it. Apparently the U.S. Justice Department does not feel compelled to follow the nation’s anti-discrimination laws, including the Age Discrimination in Employment Act, which prohibits discrimination against qualified applicants who are over the age of 40.  But maybe you can discriminate if the “job” is a mirage or a fallacy.

 This is an inside peek at government that Upton Sinclair would appreciate. Speaking about hogs and making sausage. “They had done nothing to deserve it; and it was adding insult to injury, as the thing was done here, swinging them up in this cold-blooded, impersonal way, without pretence at apology, without the homage of a tear. “

(Note: See follow up article written Sept. 14, 2011, How the Justice Department Gets Away With It)

Federal Discrimination Laws

Most workplace bullying falls outside the parameters of federal discrimination laws. However, workplace abuse may be the result of illegal discrimination and, if so, you may be able to file a lawsuit seeking damages from your employer. Federal laws prohibit discrimination on the basis of age, disability, national origin, genetic information, pregnancy, race/color, religion and sex. These laws generally cover employees, applicants for employment, former employees and applicants to, and participants in, training and apprenticeship programs. An employer may include private sector and state and government entities, depending on the law. These laws also make it illegal to retaliate against a person who has complained about an equal employment opportunity violation, or participated in filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute. The U.S. Equal Employment Opportunity Commission (EEOC) enforces most of these laws (Go to: www.eeoc.gov). Here is a list of major federal laws relating to employment discrimination: RACE AND COLOR, RELIGION, NATIONAL ORIGIN, OR SEX

  • Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate on the basis of race, color, religion, national origin, or sex. It is also illegal to harass a person because of that person’s race, color, national origin or sex. Harassment goes beyond simple teasing or an offhand comment; it generally must be severe and frequent, creating an hostile or offensive work environment or resulting in an adverse employment decision (such as being fired or demoted). The law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.

PREGNANCY

  • Title VII was amended by The Pregnancy Discrimination Act of 1978 (PDA), which makes it illegal to discrimination against a woman because of pregnancy, childbirth or a medical condition related to pregnancy or childbirth.

EQUAL PAY

  • The Equal Pay Act of 1963 (EPA) makes it illegal to pay different wages to men and women if they perform the same work in the same workplace. The jobs must be substantially equal and all forms of compensation are covered, including salary, overtime pay, bonuses, stock options, etc. The EPA protects both men and women.
  • Title VII, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA) also prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age or disability. Unlike the EPA, there is no requirement that the jobs be substantially equal.  The Lilly Ledbetter Fair Pay Act of 2009 establishes that each paycheck that contains discriminatory compensation is a separate violation regardless of when the discrimination began.

AGE DISCRIMINATION An egregious double standard exists for older workers in federal discrimination law. The Age Discrimination in Employment Act,  29 U.S.C. §§ 621 et seq., makes it “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).” With any other type of discrimination lawsuit, it is enough to show that you were the victim of illegal discrimination.  But not so with age discrimination claims. To prevail on an ADEA claim, the U.S. Supreme Court saysyou must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).  In a Title VII discrimination lawsuit – when the grounds are discrimination on the basis of  sex, race, color, national origin or religion – it is enough to show the discrimination was a motivating factor for the adverse job action (i.e. demotion or dismissal). So … In an ADEA claim, if your employer can point to any other reason for termination– and who hasn’t been late or disagreed with their boss – your lawsuit may be thrown out of court by a judge before it even gets to a jury.  This, despite he fact that you can show that you were the victim of blatant and reprehensible age discrimination. Why are older Americans treated like second class citizens?   I suggest you ask your Congressional representative and U.S. Senator.  Personally, I can’t think of one good reason except, perhaps, that big business has better lobbyists. DISABILITY

  • Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA),  prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments. A disability is a physical or mental impairment that substantially limits one or more major life activities. Employers are required to reasonably accommodate the known physical or mental limitation of an otherwise qualified individual with a disability who is an applicant or an employee, unless doing so would impose an undue hardship on the operation of the employer’s business.
  • Sections 501 and 505 of the Rehabilitation Act of 1973 make it illegal to discriminate against a qualified person with a disability in the federal government.

GENETIC INFORMATION

  • The Genetic Information Nondiscrimination Act of 2008 (GINA), which took force on November 21, 2009, makes it illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder or condition of an individual’s family members.

SEXUAL HARASSMENT

  • The Equal Employment Opportunity Commission promulgated guidelines (Sec. 1604.11) pursuant to the adoption of Title VII of the Civil Rights Act of 1964 that make sexual harassment illegal. This includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:  made either explicitly or implicitly a term or condition of an individual’s employment; submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual, or; such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. With respect to fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) know or should have known of the conduct, unless it can show that it took immediate appropriate corrective action.

CITIZENSHIP STATUS AND NATIONAL ORIGIN

  • Claims of discrimination based on citizenship status and national origin are covered both by Title VII of the Civil Rights Act of 1964 and by the Immigration Reform and Control Act of 1986 (IRCA).
  • The IRCA states that employers cannot discriminate because of national origin against U.S. citizens, U.S. nationals, and authorized aliens. Also, employers cannot discriminate on the basis of citizenship status against U.S. citizens, U.S. nationals, and the following classes of aliens with work authorization: permanent residents, temporary residents (that is, individuals who have gone through the legalization program), refugees, and asylumees. For example, citizenship verification must be obtained from all employees, not just “ethnic” looking employees.The IRCA is implemented by the U.S. Department of Justice, Civil Rights Division, Office of the Special Counsel for Immigration Related Unfair Employment Practices.
  • Title VII prohibits discrimination on the basis of national origin. It bars discrimination against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. This law is administered by the EEOC.