Workplace Torts And Employment Law Law Employment Essay

Published Date: 02 Nov 2017

Monica Tipton

Capella University

Rights of Wrongs: Torts and Employment

HRM 5253

Robert Bigelow

March 11, 2013

Abstract

Every human being has the right to feel comfortable within their place of employment and has the right to address any wrong doings they feel they may have experienced at the hands of their employer. Employment tort and discrimination comes in many forms. Some examples of employment discrimination are personal characteristics, age, gender based, racial, national origin, religion, disability, genetic information, pregnancy, harassment, equal pay and compensation, and retaliation (EHOW, 2013). U.S. Equal Employment Opportunity Commission (EEOC) is the governing authority for establishing federal guidelines to help prevent these types of discrimination from taking place in the workplace. If anyone feels they have been discriminated against by their employer they have the right to file a complaint with the EEOC.

Workplace Torts and Employment Law Project

"The definition of employment discrimination is a disparity in treatment of individual employees, based on their personal or social differences." (Lawfirms, 2013) "Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin." (U.S. Equal Employment Opportunity Commission, 2013) This applies to employers with 15 or more employees. Title VII prohibits not only intentional discrimination, but also neutral job policies that disproportionately affect persons of a certain race or color and that are not related to the job and the needs of the business.

"Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features). Color discrimination involves treating someone unfavorably because of skin color complexion." (U.S. Equal Employment Opportunity Commission, 2013) Racial discrimination can be divided into two major forms Institutional racism and Economic racism. "Institutional racism is defined as racial discrimination by governments, corporations, educational institutions, or other large organizations with the power to influence the lives of many individuals." (LawFirms, 2013) "Economic racism is defined as historical economic or social disparity that affects current generations through deficits in formal education and through primarily unconscious racist attitudes and actions on members of the general public." (LawFirms, 2013)

"Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive." (U.S. Equal Employment Opportunity Commission, 2013) Harassment falls under the Title VII of the Civil Rights Act of 1964. Sexual harassment followed by race and religion are the most common forms of harassment.

Americans with Disabilities Act of 1990 (ADA) prohibits employment discrimination against qualified individuals with disabilities. "To be protected under the ADA, you must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, and performing manual tasks, caring for oneself, learning or working." (U.S. Equal Employment Opportunity Commission, 2013) Employers face a burden of proven undue hardship when facing charges for Americans with Disabilities Act forms of discriminations. This along with race is one of the most common types of employments discrimination claims.

"The Age Discrimination in Employment Act of 1967 prohibits discrimination in employment on the basis of age; applies to individuals who are at least 40 years old. "(Bennett-Alexander, 2009) People over the age of 40 are quick to be thought of as old when it comes to being productive within the workplace. My personal opinion for the most part is quite the opposite. The 40 and over workforce have more tacit knowledge within their specific target areas than anyone coming straight in from college. Tacit knowledge can only be gained from years of experience of working in a particular field for an extensive period of time. On the other end of the spectrum in some jobs i.e. aviation, being over 40 may not be the best health wise because your reflexes tend to slow down naturally with age. This may not only cause a dangerous environment for the employee, but for the customers as well.

"The Equal Pay Act of 1963 prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort and responsibility under similar working conditions." (U.S. Equal Employment Opportunity Commission, 2013) The National Women’s Law Center state "American women who work full-time, year-round are paid only 77 cents for every dollar paid to their male counterparts." (NLWC, 2013). The National Women’s Law Center was also key lobbyist in the Lilly Ledbetter Fair Paly Act of 2009. The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress. According to Institute for Women’s Policy and Research (IWPR), women are 50 % of today’s workforce yet it may take another 50 years to close the current wage gap between men and women. (IWPR, 2013) It is surprising to see such a disparity this day and age. "In 2012, the ratio of women’s to men’s median weekly full-time earnings was 80.9 percent, a decline of more than one percentage point since 2011 when the ratio was 82.2 percent. This corresponds to a weekly gender wage gap of 19.1 percent for 2012. Women’s median weekly earnings in 2012 were $691, a marginal decline compared to 2011; men’s median weekly earnings were $854, a marginal increase compared to 2011." (IWPR, 2013)

"The Genetic Information Nondiscrimination Act of 2008 prohibits discrimination on the basis of genetic information with respect to health insurance and employment." (U.S. Equal Employment Opportunity Commission, 2013). This law does not cover long term life insurance or disability insurance. "Genetic discrimination occurs if people are treated unfairly because of differences in their DNA that increase their chances of getting a certain disease" (Genome, 2013). While I am unclear as to how my employer would gain access to my DNA information I am glad that it is being protected by law.

Religion discrimination is described as treating a person unfavorably because of their personal religion preference. According to the American Civil Liberties Union (ACLU), there appears to be an increase of discrimination based on religious objections ranging from "religiously affiliated schools firing women because they became pregnant while not married; business owners refusing to provide insurance coverage for contraception for their employees; graduate students, training to be social workers, refusing to counsel gay people; pharmacies turning away women seeking to fill birth control prescriptions; bridal salons, photo studios, and reception halls closing their doors to same-sex couples planning their weddings." (American Civil Liberties Union, 2013) Although employers’ must respect an employees religion they do not have to accommodate their beliefs and/or religious clothing as well if it causes and undue hardship to the company itself. Religion and harrassment are very fine lines to tread. Minor teasing may be toloretated, but flat out harrassment which leads to creating a hostile work environment is illegal.

Sex (gender) based discrimination is described as treating a person unfavorably because of one’s sex. "When you are treated differently because of your sex and when the different treatment negatively affects the "terms or conditions of employment," it is illegal. "Terms or conditions of employment" include position, pay, title, being hired or fired from a job, and advancement and training opportunities." (Equal Rights and Economic Opportunites for Women and Girls, 2013) Sex discrimination comes in several different forms such as hiring, firing, job classification, benefits a person may or may not receive, pay, and sexual harrassament. Hiring for example means you apply for a position you are more than qualified for , but the company refuses to hire you because they have an issue working with women. Job classification for example means you work in an environement where everyone qualifications are publizicized, but you are repeatedly denied promotions. Meanwhile your male coworkers with the exact same qualifications and time on the job are offered several promotions. Sexual harrassment is the advancement of unwanted sexual notions are actions in lue of getting a promotion. No one should ever feel threathen based on their gender alone.

"National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not). National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin or because of their connection with an ethnic organization or group." (U.S. Equal Employment Opportunity Commission, 2013) In the military, although certain foreign nationals are authorized to join, there are certain ratings in which they cannot hold because of their origin. This is a matter of national security. This is also the case when and if they become citizens of the United States of America. However, the military cannot tell someone because of their origin they are unable to participate in everyday common activities.

Retaliation is about making people afraid to complain or to assert their rights. It is a subtle, but important distinction. The three main types of retaliation are adverse action, covered individual, and protected activity. Adverse action is defined as "an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding." (U.S. Equal Employment Opportunity Commission, 2013) Some examples of adverse actions are as follows: "employment actions such as termination, refusal to hire, and denial of promotion, other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights." (U.S. Equal Employment Opportunity Commission, 2013)

Covered individuals are defined as " people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals." (U.S. Equal Employment Opportunity Commission, 2013) an example of a covered individual is it is illegal to terminate an employee whose spouse filed an EEO sexual discrimination complaint. Protect activity is defined as "opposition to a practice believed to be unlawful discrimination and participation in an employment discrimination proceeding." (U.S. Equal Employment Opportunity Commission, 2013) This means informing your employer you believe they may be engaing in prohibited activities. Some examples of protected opposition include: "complaining to anyone about alleged discrimination against oneself or others; threatening to file a charge of discrimination; picketing in opposition to discrimination; and refusing to obey an order reasonably believed to be discriminatory." (U.S. Equal Employment Opportunity Commission, 2013)

The Pregnancy Discrimination Act of 1978 prohibits sex discrimination on the basis of pregnancy." (U.S. Equal Employment Opportunity Commission, 2013). Employers cannot terminate a woman on the sole basis of her being pregnant. In the event an employee is unable to perform her duties her employer must treat her the same way as an employee with a temporary disability. All pregnancy related benefits must be extended to both married and non-married employees. All job openings must be held for the same amount of duration as any other temporary disabilities. The Pregnancy Discrimination Act of 1978 also provides protection against the following employer induced situations: "refuses to hire pregnant applicants, terminates an employee on discovering the employee’s pregnancy, does not provide benefits to pregnant employees on an equal basis with short-term disabilities of other employees, refuses to allow a pregnant employee to continue to work even though the employee wishes to do and is physically able to do so, does not provide the employee with lighter duty if needed, when such accommodations are made for employees with other short-term disabilities, eliminates the pregnant employee by moving her to a new job title with the same pay, then eliminates the position in a job restructuring or a reduction in force, evaluates the employee as not having performed as well or as much as other employees when the basis for the evaluation is the employer’s own refusal or hesitation to assign equal work to the employee because the employee is pregnant and the employer feels the need to "lighten" the employee’s load, though the employee has not requested it, and does not permit the pregnant employee to be a part of the normal circle of office culture so she becomes less aware of matters of importance to the office or current projects, resulting in more likelihood that the employee will not be able effectively to compete with those still within the circle." (Bennett-Alexander, 2009)

Employment discrimination has negative effects on all parties. Settlements are very costly causing most small businesses to close its doors permanently. The ability for a company to recruit new personnel is tarnished as well as the ability to retain current employees because of the unfairness they may have witnessed firsthand. Finally, a company’s reputation may be damaged causing financial hardship in which they may or may not recover.

CLEVELAND BOARD OF EDUCATION. v. LAFLEUR 1973 is a case where two different counties in Ohio had policies regarding pregnancies for school teachers. In Cleveland, County the mandatory pregnancy policy requires teachers to submit a notification two weeks prior to departure for a five month unpaid leave period prior to the expected birth of a child. The child must be three months old before the teacher can return to work pending she has an approved statement from the doctor stating she is ready to return. In Chesterfield County, a teacher is required to provide six month notice before the expected birth of a child with an unpaid leave period for four months. Reemployment will not occur until one year later pending she has an approved statement from the doctor stating she is ready to return. "For the reasons stated, we hold that the mandatory termination provisions of the Cleveland and Chesterfield County maternity regulations violate the Due Process Clause of the Fourteenth Amendment, because of their use of unwarranted conclusive presumptions that seriously burden the exercise of protected constitutional liberty. For similar reasons, we hold the three-month provision of the Cleveland return rule unconstitutional." (Find Law for Legal Professionals, 2013)

This case and the court ruling support equity and discourage employment discrimination by identifying all women will not be pregnant and deliver at the exact same time. No matter how far or how little in advance the school board is notified of the pregnancy it will not have an impact on the classroom stability. Teachers are still required to notify the school board of tentative maternity leave dates in a timely fashion to allow adequate time to find a replacement. There has been no scientific evidence that teaching past five months of pregnancy is a hindrance to the mother or the baby. This case allows teachers the freedom to continue to get pregnant at will and not feel their jobs are in jeopardy.

There are multiple resources for women regarding pregnancy employment tort discrimination assistance. The Equal Employment Opportunity Commission, The National Women Law Center, and The Institute for Women’s Policy and Research (IWPR) are just a few. Although as women are grateful there are laws such as the Title VII of the Civil Rights Act of 1964, The Equal Pay Act of 1963, American Disabilities Act 1990 and The Pregnancy Discrimination Act of 1978 more protection regarding women and pregnancy is still needed.

Research has shown that employers’ who choose to accommodate pregnant employees experience very little or no cost. Most of the request range from sitting vice standing to taking frequent bathroom breaks. These employees in turn become more loyal because they feel appreciated and cared for. Recent legislation was introduced to try and close the small yet wide gap that still remains when it comes to providing adequate employment protection for pregnancy women.

"The Pregnant Workers Fairness Act (PWFA), H.R. 5647 and S. 3565, would let pregnant women continue to do their jobs and support their families by requiring employers to make the same sorts of accommodations for pregnancy, childbirth, and related medical conditions that they do for disabilities." (NLWC, 2013) The Pregnant Workers Fairness Act could allow for the following changes: "An employer might be required to modify a no-food-or-drink policy for a pregnant employee who experiences painful or potentially dangerous uterine contractions when she does not regularly drink water, be required to provide a stool to a pregnant cashier who was experiencing leg pain and swelling from standing for long periods of time, be required to reassign heavy lifting duties to other employees for some portion of an employee’s pregnancy, and be required to make an available light duty position available to a pregnant police officer who was temporarily unable to go on patrol because no bulletproof vest would fit her." (NLWC, 2013) The Pregnant Workers Fairness Act would also prevent any further forced unpaid leave while leaving the voluntary option still available.

Best practices for pregancies in the work place require responsiblitiy on both the employer and the employee. The employee shares the responsibility of notification of the pregnancy as early as possible and any medical limitations that arise. This will allow the employer to make any and all accomodations as needed. Most accomodations regarding pregancies are going to be determined soley based on the work environment. In the case of a school environment, school board will want to ensure teachers have comfortable chairs and proper matting when standing. School boards should reduce the amount of prolong standing in the classroom. School boards should bring in substitute teacher one month prior to teacher departing for maternity leave. This will allow for proper turnover process and help create a seamless transistion for the students as best possible. Teachers are required to notify school board of pregnancy as soon as possible as well as their plan of action regarding maternity leave to allow for finding a replacement. Teachers should be authorized to wear tennis shoes and take frequent bathroom breaks as needed. Teachers should be required to create long term training plans, study material, and testing guides for the timeframe they will be on maternity leave.

Bibliography

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EHOW. (2013, March 11). Retrieved from EHOW: http://www.ehow.com/info_7965476_examples-employment-discrimination.html

Equal Rights and Economic Opportunites for Women and Girls. (2013, March 11). Retrieved from Equal Rights Advocates: http://www.equalrights.org/publications/kyr/sexdiscrim.asp

Find Law. (2013, March 11). Retrieved from Find Law: http://civilrights.findlaw.com/discrimination/gender-discrimination-u-s-supreme-court-cases.html

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