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  • Writer's pictureDr. Nora Szabo, LL.M.

DISCRIMINATION AT THE WORK PLACE


PART I - Anglosaxon Law Overview



WHAT IS DISCRIMINATION?


Hate – it has caused a lot of problems in the world, but has not solved one yet.[1]




Unfortunately for mankind, some of the darkest chapters of world history stem from the roots of discriminative behavior, which is generally not legal, however the legal framework thereof may vary. Therefore, it is believed to be indispensable to educate society on the actual definition of discrimination and what types thereof exist in order to give the proper opportunity to make a well-informed, intelligent decision to avoid any and all shapes and forms of discrimination.


As companies are established, the founders to the implementation of corporate governance policies must proceed with utmost diligence and due caution.


However, as management implements such policies in the operational day-to-day life of the business activity of a company, an anti-discriminatory regulation against misconduct both internally, among the corporation itself with special regard to its employees and externally, towards the suppliers, distributors and other partners thereof is essential.


Should against all odds and proper policies, yet incidents occur, where discriminatory conduct leads to the unfair handling of employees within the company, then the employer must act with great caution. Given that, as elaborated further below, a victim of misconduct is entitled to take up the proper legal measures either in form of workers’ compensation or a lawsuit, one must not be retaliated against for the practice of such legal rights. When we look into the proper definition, retaliation means to act in revenge.[2] Examples for retaliation are seen at a very wide ranged variety within case law both in the United States of America and Europe, whereas any kind of treatment or conduct from the employer’s side towards the employee due to the fact that a member of the company’s staff has initiated a sort of reporting against their employer will lead to the basis of an alleged retaliation claim.


Whether we look at the regulative provisions governing employment and labor law in the United States of America or Europe, generally, it can be stated that since the employer usually has the economic force and the hierarchic, “upper hand position” over the employee, who is dependent on his or her salary from their employer, these laws protect the employee, whereby such member of the work force is in the “weaker position” from an economic point of view. On a global legal level such protection of the employee has developed into a basic principal of employment law found present in basically all legal systems.


Therefore, it is imperative for the employer to treat its employees the same and in a non-discriminatory fashion. As such, we must examine what discrimination means and what type of discrimination can occur.


“In human social behavior, discrimination is treatment or consideration of, or making a distinction towards, a person based on the group, class, or category to which the person is perceived to belong.”[3]


Besides the aforementioned basic definition, two main types may be distinguished: direct and indirect discrimination. When identifying direct discrimination, we talk about disparate treatment, which covers intentional discrimination whereas similarly situated persons are treated differently without any sort of rational basis for such differentiated course of conduct.


Indirect or otherwise called unintentional discrimination on the other hand, lies in a regulation, albeit equally governing a certain situation among similarly situated individuals, however there is disparate impact by means of which the employment practice at issue may be neutral on its face, however the result that it has upon a particular group may be more harsh than it is on other groups.[4]


ANTI-DISCRIMINATION RULES BASED ON THE LAWS OF THE UNITED STATES OF AMERICA


Based on the general anti-discrimination rules of the United States of America, generally discrimination is based upon race, sex, religion, national origin, sexual preference and marital status to name the most common and prima facie cases, which are considered illegal.


At the federal law level there are several different statutes dealing with discrimination at the work place. Title VII of the Civil Rights Act of 1964 contained in 42 USC Sec. 2000 (e) for instance prohibits discrimination in employment including hiring, firing, compensation, terms, conditions or privileges of employment, on the basis of race, color, religion, sex or national origin. This statute as many other federal statutes involving anti-discriminatory and other regulations pertinent to employment law only is applicable to employers which dispose of a certain number of employees.


The reason for such legal boundary lies in the Constitution of the United States of America, whereas the federal government, bears only limited authority or jurisdiction and thereby may not simply pass laws that govern every single micro aspect of civilians’ lives without there being some sort of constitutional basis for such law-making. The federal government may invoke such legal ground for its legislation based on the impact certain courses of conduct may have on interstate commerce[5], being one of the values, which are to be protected as per the Constitution of the United States of America.


One might ask, but what does discrimination at the work place have to do with interstate commerce? Well, based on federal law aspects and the aforementioned constitutional considerations, a small employer with only one employee most likely will not have a significant impact on interstate commerce, unlike a larger employer bearing hundreds of employees although potentially remotely, however may have an impact on interstate commerce and as such may be governed by the federal statutes pertinent to anti-discrimination rules and regulations related to employment.


Other such federal statues include the Civil Rights Act of 1866 found in 42 USC Sec. 1981 prohibiting race discrimination in employment, the Civil Rights Act of 1871 found in 42 USC Sec. 1983 prohibiting discrimination on the basis of race under color of state law, the Age Discrimination in Employment Act found in 29 USC Sec. 621 covering employers with twenty or more employees and sets up a protected age group between ages forty and seventy with certain exceptions, further the Equal Pay Act found in 29 USC Sec. 206 (d) deals with discrimination in wages on the basis of sex. Another such federal statute, which may have an impact on employment, is the Americans with Disability Act found at 42 USC Sec. 1210, which prescribes the provision of reasonable accommodations for disabled persons in order to ensure equal treatment among other qualified individuals. Further, in 1993 the Congress of the United States of America passed the Family and Medical Leave Act, granting employees up to ninety days of paid or unpaid leave (depending on the specific state statute) for family medical emergencies.


Time is of the essence when filing a discrimination claim against an employer, whereas in order to initiate such procedure the claim must be reported to the appropriate administrative agency within a short period following the discriminatory conduct of the employer, whereas the longer the time lapse, the more difficult it is to bear the burden of proof. Following the proper, first step, administrative, “filtering phase” of such case, if all conditions are met to find that discriminatory action has indeed taken place either in an intentional or unintentional manner, then the claimant has the possibility of bringing the claim in front of either the federal or state agency, which gives the employer the opportunity to have adequate notice of such claim and to investigate the alleged improper conduct. If such investigation does not lead to the resolution of the matter, then the employee will eventually acquire the right to file a civil action against the employer.


Further factors must be taken into account based on public policy considerations, whereas in so called “at will” employment relationships, certain American states permit employment to be established based on oral agreements and are in absence of specific written express contracts. Although this legal term allows for the freedom of an employee to leave its employment at any given time it also bears the risk for the employer to terminate the employment at any moment it wishes to do so as well. However, it must be kept in mind that such termination of employment, including mass lay-offs may not be based under any circumstances on discriminatory reasons in violation of federal, state, or local statutes.


Stayed tuned for next month's blog on "Discrimination at the Work Place - PART II. - European Law Overview".


***

*ALL RIGHTS RESERVED. This blogpost may not be used in any way, shape or form, furthermore it does not serve as legal advice and does not constitute any kind of legal assignment agreement. In case of questions or remarks, please feel free to contact us at nora.szabo@noraszabolaw.com.


Sources: [1] Quote by Maya Angelou [2] Merriam-Webster’s Dictionary of Law (1996) page 432. [3] https://en.wikipedia.org/wiki/Discrimination [4] “Law 101” by Brien A. Roche, Attorney at Law (2004) pages 193-194. [5] The Constitution of the United States of America, Article I, Section 8, Clause 3 - the United States Congress shall have power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

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