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

Workplace Anti-Bullying Laws Inevitable …

Here are excerpts from a Jan. 21, 2011 article in The New York Law Journal by two attorneys at a major law firm that represents management and employers, warning that it is just a question of time before a state passes a law providing a right of civil redress to workers who are victims of workplace bullying. Note: this article presents a somewhat alarmist view of what the authors concede is the inevitable passage of legislation to combat workplace abuse. The authors trivialize the current problem, focusing on co-worker spats and hypersensitive employees while ignoring the devastating impact of workplace bullying on targets, their families and the employers.  The authors’ interpretation of case law is unduly negative and slanted.  And the authors fail to present an accurate picture of the current costs of  workplace abuse  on employers and society– PGB

Office Bully Takes One on the Nose: Developing Law on Workplace Abuse

by Jason Habinsky and Christine M. Fitzgerald

For years the law has been stacked against an employee claiming that he or she was abused or bullied by a co-worker. Generally, the law offers no protection to such a victim as long as the alleged bully can show that his or her actions were not motivated by the victim’s status as a member of a protected class. Currently, there are no federal, state or local laws providing a cause of action for an individual subject to a non-discriminatory abusive work environment. However, with bullying becoming front-page news across the nation, it is just a matter of time before the law adapts. Since 2003, 17 states have considered legislation designed to protect employees from workplace bullying. Indeed, this year New York came very close to a floor vote on a bill that would provide a cause of action to an employee subjected to an abusive work environment.

Proponents of anti-bullying legislation contend that it is necessary given the prevalence of abusive conduct in the workplace. The proposed New York legislation noted that “between sixteen and twenty-one percent of employees directly experience health endangering workplace bullying, abuse and harassment” and that “[s]uch behavior is four times more prevalent than sexual harassment.”

Currently, employers have little to worry about with respect to facing substantial liability as a result of workplace bullying. The existing legal framework provides very limited recourse to an employee who is bullied at work. While some types of harassment are outlawed under Title VII of the Civil Rights Act of 1964, Title VII’s reach is narrow. Title VII prohibits employment discrimination based on an individual’s race, sex, color, religion, or national origin.

Likewise, the extreme behavior that gives rise to the tort of intentional infliction of emotional distress does not encompass most workplace bullying.

Employees also have been unsuccessful in trying to fit their workplace bullying claims into a cause of action for constructive discharge.

Therefore, it appears that we may be on the cusp of a new era of legislation and legal precedent targeted at preventing and punishing workplace bullying. Indeed, it seems inevitable that some form of the HWB (Healthy Workplace Bill) will become law, whether in New York or elsewhere, and that once the first state adopts an anti-bullying statute others will shortly follow.

Other Federal Laws

OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

Some experts say the Occupational Safety and Health Administration should take the lead on combating workplace bullying.*  There is overwhelming evidence that workplace bullying can lead to serious injury and even death.  In fact, a term has been coined for workers who are driven to suicide as a result of bullying – “bullycide.”  In several other countries, workplace bullying is considered a health and safety issues and is regulated by a federal agency like OSHA. 

The Occupational Safety and Health Administration in May 2011 adopted a safety program for its own workers that includes a workplace anti-bully policy. The policy is contained in a 278-page document, the OSHA Field Health and Safety Manual,  which outlines safety practices for OSHA’s field offices. It was drafted in cooperation with the National Council of Field Labor Locals, a union that represents OSHA workers.

OSHA’s workplace bullying policy is significant because the General Duty Clause of the Occupational Safety and Health Act of 1970 requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees … .” However, OSHA has not enforced that provision with respect to workplace bullying.

The stated purpose of the workplace bullying policy adopted by OSHA for its own workers,  contained in the manual’s “Violence in the Workplace” chapter. is: ”To provide a workplace that is free from violence, harassment, intimidation, and other disruptive behavior.”

Here is the OSHA General Duty Clause, Section 5(a)(1) SEC. 5:

Duties

(a) Each employer —

(2) shall comply with occupational safety and health standards promulgated under this Act.

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees …

*See Susan Harthill. “The Need for a Revitalized Regulatory Scheme to Address Workplace Bullying in the United States: Harnessing the Federal Occupational Safety and Health Act.” University of Cincinnati Law Review 78.4 (2010): 1250-1306.

WAGE AND HOUR LAWS

The Fair Labor Standards Act (FLSA) does not address workplace bullying per se but it can be used to combat certain types of abuse. The 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  If one aspect of the bullying campaign is failure to pay proper wages or overtime, for example, the FLSA is one potential remedy.

THE NATIONAL LABOR RELATIONS ACT

The National Labor Relations Act  (NLRA) 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 is regulated by the National Labor Relations Board.

 Specifically, the National Labor Relations Board protects the rights of employees to engage in “protected concerted activity,”  which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.  A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.

A few examples of protected concerted activities are:

  • Two or more employees addressing their employer about improving their pay.
  • Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
  • An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

Most employees in the private sector are covered by the NLRA. However, the Act specifically excludes individuals who are employed by federal, state, or local governments, agricultural laborers, some close relatives of the employer, domestic servants in a home, independent contractors, employers subject to the Railway Labor Act, etc.

FAMILY AND MEDICAL LEAVE ACT

The Familiy and Medical Leave Act (FMLA offers potential help for employees who are suffering health effects from workplace abuse.  Administered by the Wage and Hour Division of the U.S. Department of Labor, it  entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

Twelve workweeks of leave in a 12-month period for:

-the birth of a child and to care for the newborn child within one year of birth;

-the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

-to care for the employee’s spouse, child, or parent who has a serious health condition;

a serious health condition that makes the employee unable to perform the essential functions of his or her job;

– any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness who is the spouse, son, daughter, parent, or next of kin to the employee (military caregiver leave).

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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