Employment Discrimination: What’s with Indiana?

 

The number of  employment discrimination complaints to the Equal Employment Opportunities Commission  is at an all time high, and its expected to rise.

But there are indications that discrimination is more prevalent in certain states, which apparently have laws and a regulatory schemes that favor business. For example, Texas is an employment-at-will state, which means that employees can be terminated for any reason as long as it doesn’t violate the law (i.e. discrimination) or an important public policy.

Conversely, some high population states appear to have a lower incidence of employment discrimination, possibly indicating a more favorable climate for employer-employee relations.

Businessweek recently did an analysis based on the number of EEOC “merit resolutions” in 2010. These are cases resolved without litigation by the EEOC with private employers and state and local government employers (not federal government). The EEOC filed 250 lawsuits in 2010, resolved 285 lawsuits, and resolved 104,999 private sector charges.  Note: The EEOC “prosecutes” only a fraction of the complaints that are filed with the EEOC.

Businessweek’s analysis shows that Texas was the state with the highest number of merit resolutions in 2010. However, this is not particularly surprising given that Texas has the second highest population of any state, after California, which ranked 2nd.

But what’s with Indiana? It’s the 15th largest state but ranks 5th state in terms of EEOC merit resolutions. Indiana touts itself as America’s heartland, a family friendly place.  Apparently it is even friendlier to business.  If you’re looking for a job, you might want to take this into account. And if you have a job in states like Indiana, Alabama or Mississippi, well … good luck!

On the other hand, New York is the 3rd largest state but ranks 15th in merit resolutions. Go New York!

The U.S. Equal Employment Opportunity Commission (EEOC) says private sector workplace discrimination charge filings with the federal agency nationwide hit an unprecedented level of 99,922 during the fiscal year ending on Sept. 30, 2010. All major categories of charge filings in the private sector (which include charges filed against state and local governments) increased. These include charges alleging discrimination under Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay Act; the Age Discrimination in Employment Act; the Americans with Disabilities Act; and the Genetic Information Nondiscrimination Act (GINA).

For the first time ever, retaliation under all statutes (36,258) surpassed race (35,890) as the most frequently filed charge, while allegations based on religion (3,790), disability (25,165) and age (23,264) increased.

Here’s the Businessweek ranking of states with EEOC merit resolutions:

1. Texas, 2nd largest state, population 25,145,561; merit resolutions,  1,780.

2. California, largest state, pop. 37,253,956; merit resolutions, 1,600.

3. Florida, 4th largest state,pop.  18,801,310; merit resolutions, 1,409.

4. Georgia, 9th largest state, pop. 9,687,653; merit resolutions, 1,288.

5. Indiana, 15th largest state, pop. 6,483,802; merit resolutions, 1,063.

6. Illinois, 5th largest state,pop.  12,830,632; merit resolutions, 1,001.

7. Pennsylvania, 6th largest state, pop. 12,702,379; merit resolutions, 860,

8. North Carolina, 10th largest state, pop. 9,535,483; merit resolutions, 823.

9. Tennessee, 17th largest state, pop.  6,346,105; merit resolutions, 800.

10. Ohio, 7th largest state, pop. 11,536,504; merit resolutions, 680.

11. Alabama, 23rd largest state, pop.4,779,736; merit resolutions, 650.

12. New York, 3rd largest state, pop. 19,378,102′ merit resolutions, 609.

13. Michigan, 8th largest state,  pop. 9,883,640; merit resolutions, 559.

14. Colorado, 22nd largest state, pop. 5,029,196; merit resolutions, 509.

15. Virginia, 12th largest state, pop. 8,001,024; merit resolutions, 499.

16. Arizona, 16th largest state, pop.,  6,392,017; merit resolutions, 496.

17. Missouri, 18th largest state, pop., 5,988,927; merit resolutions, 463.

18. Mississippi, 31st largest state, pop., 2,967,297; merit resolutions, 392.

19.  Arkansas, 32nd largest state, pop. 2,915,918; merit resolutions, 376.

20. Washington, 13th largest state, pop. 6,724,540;  merit resolutions, 353.

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

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.

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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