Home Business The Complicated World of Employment Discrimination (Part II)
The Complicated World of Employment Discrimination (Part II)

The Complicated World of Employment Discrimination (Part II)

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By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

Note: This article contains content adapted from lesson material I wrote for APUS classes. It is the second article in an eight-part series on employment discrimination law and sound employment practices. In this article, we will look at the religion, sex and national origin provisions of the 1964 Civil Rights Act.

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Religion: A Legally Protected Class against Discrimination

Religion is a third class protected by Title VII of the Civil Rights Act. As with race, there are no bona fide religions in the eyes of the law.

Religions are, by their nature, faith-based and non-evidentiary belief systems. Because of the strong emphasis on “separation of church and state” in American government, the law deliberately declines to identify any “real” religions.

Employers must remember that the religious beliefs of employees or potential employees should be respected, notwithstanding their popularity or believability. One need only look to the case of the “Church of the Flying Spaghetti Monster” as a very instructive example, however tongue-in-cheek it may be.

But respect is not the same thing as accommodation. Although an employer may not discriminate against employees or candidates based on religious belief, someone’s religion might require them to act or refrain from acting in particular ways.

For instance, an employee might want to pray at certain scheduled times of day, attend Mass on a day of worship or refrain from working on the Sabbath. Obviously, these employee practices might complicate matters for employers.

In these cases, employers are mandated by law to make “reasonable accommodations” in the interest of permitting the free exercise of religious beliefs. Generally, reasonable accommodation might include schedule changes, break time modifications, or other alterations to working conditions when possible. There should be no significant burden or hardship on the employer.

However, the “reasonable” standard is based on the obscure legal concept of the “reasonable person,” and courts hardly agree on the characteristics that comprise such an individual. As a result, employment law attorneys generally turn to case law precedent in their relevant jurisdictions for guidance on these matters.

Sex: Another Class Legally Protected from Employment Discrimination

Employment discrimination based on sex is also prohibited under Title VII. Traditionally, the attribute of “sex” has been construed to mean one’s gender.

However, more recent case precedent has established that sex may also be interpreted to include the concept of gender identity (which protects transgender persons) and sexual orientation (which protects lesbian, gay, and bisexual persons). Sadly, the changeability of sexual orientation is still the subject of vigorous public debate, despite the fact that scientific research settled the matter years ago.

Nonetheless, case law does not always settle a dispute. The federal government has not yet passed legislation that clarifies employment discrimination protection for the lesbian, gay, bisexual, transgender and questioning (LGBTQ) community.

Consequently, many states have enacted their own legislation, prohibiting one or both types of employment discrimination in the workplaces over which they exercise control. The Movement Advancement Project maintains a map that identifies these states and the extent of their protections.

Gender-based pay discrimination has also been the subject of much public debate and legislation. Congress enacted The Equal Pay Act of 1963 as an amendment to the Fair Labor Standards Act; it requires that all employers pay equal wages to women and men.

In addition, the Equal Pay Act set the statute of limitations for claims at 180 days from the first instance of discrimination. If an employee first discovered gender-based pay discrimination more than six months after the discrimination first began, then that employee was precluded from bringing suit.

However, President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act in 2009. This Act changed the statute of limitations start point from the date that the discrimination first occurred to the date the employee first discovered the discrimination, effectively bolstering protections for victims of gender-based pay discrimination.

Because salaries in the private sector are not widely reported, violations are hard to identify. Even today, the extent of gender-based pay discrimination is not fully known.

However, data suggests that this discrimination is still a very pervasive concern, with women on average earning 81 cents on the dollar as compared to men. This problem could be rectified through IRS audits, but the federal government has neglected to pursue this remedy so far.

In lieu of governmental oversight, employers should audit their own organization’s pay scales frequently to ensure that gender-based pay discrimination is not taking place. In addition, employers should closely watch the evolution of relevant laws in the political sphere.

National Origin: Another Protected Class from Discrimination 

The final class protected by the original Title VII is national origin. National origin protections include the prohibition of discrimination based on an individual’s country of origin, as well as their country of heritage or ethnicity.

However, the law also prohibits employment discrimination against other factors that may be a product of one’s national origin or heritage. For example, it is illegal to discriminate based on someone’s accent.

This legal protection for employees is profoundly important for service industries whose hiring managers assess the qualifications of other employees or candidates for customer-facing positions. It is understandable for companies to want employees who are coherent and comprehensible in their ability to speak English, particularly on phone calls where others don’t have the benefit of nonverbal cues – such as body language and facial expressions – to aid in interpretation. One could argue that this communication ability is a business necessity, and policies requiring a certain standard of fluency in English are probably reasonable and permissible.

On the other hand, adopting a policy of refusing to employ individuals with accents would most certainly be in violation of anti-discrimination laws. But the point exactly at which an accent becomes so obstructive that it effectively prevents an individual from performing a job is greatly subjective, and this is why employers should stay abreast of current case law.

A tangential issue to national origin is citizenship. The Immigration Reform and Control Act (IRCA) of 1986 prohibits discrimination against employees based on their citizenship status.

However, the IRCA also requires employers to complete the federal I-9 process for all new hires. This process mandates that employers must validate government-issued identification of new hires. This information is then sent to the United States Citizenship and Immigration Services under the Department of Homeland Security, where it is used to verify that the new hire has a legal right to work in the U.S.

Because of the IRCA and I-9 process, a common misconception is that employers may never hire employees who are not either U.S. citizens or legal resident aliens. However, employers are permitted to hire and employ foreign workers, although doing so typically requires filing a petition with the United States Department of Labor and demonstrating that the type of employee needed could not be reasonably acquired within the domestic labor pool.

In the next part of this article series, we’ll examine the disability protections that have been added to federal law since the passage of the original 1964 Civil Rights Act.

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.

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