Discriminating Against the Unemployed

Since this blog was written, President Barack Obama in September 2011 sent a new bill to Congress that incorporates a provision that employers may not refuse to hire persons on the basis of their being unemployed. 

Fair Employment Act of 2011

July 14, 2011 – Kudos to U.S. Reps. Rosa DeLauro, D-Conn., and Hank Johnson, D-Ga., who have  introduced legislation that would block employers from discriminating against out-of-work applicants.

The Fair Employment Opportunity Act of 2011, H.R. 2501, would keep both employers and recruiters from refusing to consider unemployed workers for available positions, and  from including language in any job postings indicating that the unemployed should not apply, the representatives said in a statement.

It is morally reprehensible that employers discriminate against unemployed people.  Workers may have good reason to quit their jobs or they can be fired through no fault of their own.    At present there is no law that specifically addresses workplace bullying, which overwhelming research shows causes the target to suffer potentially serious physical and psychological damage.

A 2007 poll by Zogby International on behalf of the Workplace Bullying Institute found that 64 percent of targets of workplace bullying quit or are fired.  When employers are notified of bullying, most (62%)  do nothing or make matters worse. Why? The vast majority of bullies are bosses (72%) who enjoy support from executive sponsors, peers and human resources.

Specifically, the proposed law would make it illegal for employers and employment agencies to do things like:

  •  consider unemployment status and history in making hiring decisions;
  • publish in job posting that unemployed workers can not apply; and
  • block unemployed people from accessing information about job openings.

The only time it would be lawful for an employer to consider the unemployment status or history of applicant is “where an individual’s employment in a similar or related job for a period of time reasonably proximate to the hiring of such individual is a bona fide occupational qualification reasonably necessary to successful performance of the job that is being filled.”

PGB

Employers that Abuse Job Applicants

We have all read about the self-defeating mistakes a job applicant can make at a job interview.

The woman who brought her toddler. The guy who took the phone call from his wife. The girl who wore a revealing T-Shirt and flip-flops.

It is less well understood that this is a two-way street. Employers make “mistakes” too.  Some employers use tactics that are abusive to potential employees, who often have no recourse to complain.

A potential employer is in a power position. The employer has what the applicant wants – a job. For that reason, most job applicants seek to please. However,  some employers seem to feel that by consenting to an interview, the applicant has forfeited his or her right to be treated with dignity, respect and fairly.

The Society for Human Resources Management exhorts its 250,000 members to abide by a Code of Ethics that includes: “Encourage my employer to make the fair and equitable treatment of all employees a primary concern.” That tenet should be broadened to apply to job applicants also.

An applicant found her dream job at a non-profit organization halfway across the country. She was offered the job and moved there with her children. However, in the month between the offer and her arrival, there was a management shakeup. When she arrived, her job description had changed and she was reporting to a new supervisor who had not participated in her job interview. Furthermore, the new supervisor was 20 years younger, far less experienced, and was hostile from the start. The applicant estimates it cost her about $8,000 to relocate for the job, and that it will cost her many thousands more to relocate again – not including lost pension benefits and the emotional distress.

In another instance, after meeting with the Human Resources person, a job applicant for a position in Long Island  literally waited six hours sitting in a chair outside the boss’ office. At one point, he heard the boss  talking on the phone, laughing, and making plans for dinner.  The interview was finally conducted at the end of the day. It lasted about ten minutes. To add insult to injury, he was stuck on the drive home in Long Island’s infamous rush hour traffic for about two hours.

One applicant, an unemployed father of two, says he was strongly encouraged to fly to Philadelphia to meet with a prospective employer, who indicated he was a finalist for the position but could not be appointed without a face-to-face meeting.  This was a job at a state agency that, he was told, had no travel budget.  Upon arrival in Philadelphia, the prospective employer administered the equivalent of a standardized test  that he said he was giving to all applicants.  The “test” could easily have been conducted over the phone. The applicant, who didn’t get the job, advises:  “Never pay for travel!” (Suggest Skype – it’s the equivalent of a  face to face interview and it’s free.)

Finally,  an attractive woman in her mid-50s recalls a job interview in Connecticut with a direct supervisor that was going well.  The supervisor said the company president planned to stop by and say hello.  At one point, a man in his 40s walked briskly into the supervisor’s office, took one look at the applicant, and, wordlessly, turned on his heels and walked out. There was a long  and awkward silence.  After a few moments, the supervisor,  a woman in her 30s, left the room. When she returned, she said the boss wouldn’t be able to meet with the applicant after-all.  The applicant suspected the man who entered the room was the company president.  She was devastated. “I guess I was too old?” she says.

When a prospective employer makes a mistake or uses abusive tactics, more often than not, the job seeker pays the price. You may not get the job. If you do, you may end up feeling used and abused. And you have little recourse.  The woman at the Connecticut interview might argue she was the victim of age discrimination but what she wanted was a job, not a costly and time consuming lawsuit (assuming she could get an attorney to take her case).

Of course, an abusive employer may lose a valuable potential employee and engender ill will that could cost the employer business in the long run.  And, what’s the point?

Suffice to say that it is amusing when a job applicant makes a snafu but it is troubling when an employer does. The employer exerts power and control over the interview and a bad employer can wreak both emotional and economic hardship on the applicant.

These are difficult times. An unprecedented number of Americans are out of work and ripe for exploitation. A job advertisement for a menial position can precipitate a line of hundreds around a block.  Job applicants need to beware and employers need to insure that their processes accord dignity and respect to all job applicants.

Manitoba, Canada, Protects Against Workplace Harassment

Taken from 10/21/10 article in  Winnipeg Free Press, Manitoba, Canada:

The province of Manitoba, Canada, has joined several other Canadian provinces to adopt  new measures to protect against psychological harassment in the workplace, labour and immigration minister Jennifer Howard announced.

Changes to the Workplace, Safety and Health Regulation will add new requirements to protect workers from all forms of harassment, including intimidation, bullying and humiliation.

“Manitoba now joins other provinces such as Ontario, Saskatchewan and Quebec in requiring employers to provide protection from such harassment,” Howard said in a provincial government release. “This builds on other measures that protect workers from harassment based on age, race or gender and ensure that workplaces are respectful and safe for everyone.”

Employers will be required to put in place measures to prevent such harassment and address it if it occurs. The province will help develop and implement policies and educate workers and employers about their responsibilities to ensure a respectful and healthy workplace.

A press release detailing Howard’s announcement notes that normal and reasonable management actions, including discipline, are not defined as psychological harassment.

Howard also announced technical changes to workplace safety regulations in response to a recommendation made following the inquest into the 2000 death of a worker in a furnace explosion at Hudson Bay Mining and Smelting in Flin Flon.

Amendments will provide clear direction to employers and workers regarding the steps necessary to eliminate workplace hazards, strengthen requirements for use of personal safety equipment and reflect updated safety standards.

Massachusetts School Anti-Bullying Law

In April  2010 the Massachusetts’ state legislature unanimously passed what is called the toughest anti-bullying law in the nation with respect to schools,  Title 12, Chapter 71, Section 370. The law was precipitated by two cases of  Massachusetts’ youths committing suicide after allegedly being bullied. The legislation requires school employees to report and principals to investigate all instances of bullying. It should be noted that the Massachusetts’ law requires “repeated” incidents of bullying, which is not required in all bullying laws (ex. Quebec, Australia).  PGB

DEFINITION OF BULLYING  IN MASSACHUSETTS  SCHOOL ANTI-BULLYING LAW

“Bullying”, the repeated use by one or more students of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that:

(i)  causes physical or emotional harm to the victim or damage to the victim’s property;

(ii) places the victim in reasonable fear of harm to himself or of damage to his property;

(iii) creates a hostile environment at school for the victim;

(iv) infringes on the rights of the victim at school; or

(v) materially and substantially disrupts the education process or the orderly operation of a  school. For the purposes of this section, bullying shall include cyberbullying.

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.

STATE LAWS

ANTI-DISCRIMINATION LAWS

  • Every state has laws that protect employees from unlawful discrimination. These laws may be more expansive than similar federal laws, encompassing more employers and additional classes of victims.  Or they may offer protection not available under federal law. For example, the U.S. Congress has yet to adopt legislation prohibiting discrimination on the basis of sexual orientation but almost half of the states and the District of Columbia have adopted such laws.  Thus, a victim of harassment based on sexual orientation may be able to file a lawsuit in state court that would not be possible in federal court. Check the laws in your state.

OTHER POSSIBLE REMEDIES:

  • Intentional Infliction of Emotional Distress. Generally, the distress must be very severe.
  • Defamation.
  • Assault and/or battery.
  • False imprisonment.
  • Tortuous interference with the employment contract or business relationships.
  • Failure of an employer to exercise reasonable care with respect to the hiring, supervision and retention of your abuser.

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FEDERAL LAWS

There is no federal law per se that prohibits workplace abuse but there are many laws that may capture some of the behaviors that are used by the abuser. For example, an abuser who systematically harasses a person of color  may be  vulnerable to a lawsuit alleging discrimination on the basis of race.  What follows are federal laws that may be relevant in a case of workplace abuse:

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 prohibits 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

  • The Age Discrimination in Employment Act of 1967 (ADEA) makes it illegal to discrimination against people who are 40 years of age or older on the basis of age.

DISABILITY

  • Title 1 of the Americans with Disabilities Act of 1990 (ADA) makes it illegal to discriminate against a qualified person with a disability 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 IX 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 asylees. 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 Immigratoin Related Unfair Employment Practices.
  • Title IX 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.

WAGE AND HOUR LAWS

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, record keeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.  The FLSA is administered by the U.S. Department of Labor Wage and Hour Division

THE NATIONAL LABOR RELATIONS ACT

Specific federal laws that govern collective bargaining, including:

The National Labor Relations Act was passed in 1935 to protect the right of employees in the private sector to create labor unions, engage in collective bargaining and to take part in strikes. The act is also known as the Wagner Act, after its sponsor, Sen. Robert F. Wagner. The Act does not apply to workers who are covered by the Railway Labor Act, agricultural employees, domestic employees, supervisors, federal, state or local government workers, independent contractors and some close relatives of individual employers. The act is regulated by the National Labor Relations Board

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