Equal Protection Laws & Employment Discrimination in the US: US Code Sections 1981, 1983, , Slides of Labour Law

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Other EEO and Employment Legislation: Federal and State Laws Docsity.com The Civil Rights Acts of 1866 and 1870  The Civil Rights Acts of 1866 and 1870 were passed during the Reconstruction era immediately following the Civil War  The intention was to ensure that the newly freed slaves were granted the full legal rights of U.S. citizens  The acts are presently codified in Sections 1981, 1983, and 1985 of Chapter 42 of the U.S. Code Docsity.com Procedures Under Sections 1981 and 1983 (slide 1 of 2)  A suit under Section 1981 is not subject to the same procedural requirements as a suit under Title VII  No requirement to file a claim with any administrative agency (EEOC) before filing suit under Section 1981 or Section 1983  Plaintiff may file suit in federal district court and is entitled to a jury trial  A successful plaintiff may recover punitive damages in addition to compensatory damages (back pay, benefits and legal fees) Docsity.com Procedures Under Sections 1981 and 1983 (slide 2 of 2)  The right to sue under Section 1981A for compensatory and punitive damages for intentional violations of Title VII and the Americans with Disabilities Act of 1990 was added by the Civil Rights Act of 1991  Punitive damages are not recoverable against public sector employers Docsity.com Executive Order No. 11246  Provides the basis for the federal government contract compliance program  Firms doing business with the federal government must agree not to discriminate in employment on the basis of race, color, religion, national origin, or gender Docsity.com Affirmative Action Requirements  Affirmative Action plans: Programs which involve giving preference in hiring or promotion to qualified female or minority employees  Firms with contracts of services or supply for over $50,000 and having fifty or more employees are required to maintain formal written programs for the utilization of women and minorities in their work force  Affirmative action plans must be updated annually  Firms must submit annual reports of the results of their efforts to meet the goals set out in the affirmative action plan  Firms holding federal or federally assisted construction contracts or subcontracts over $10,000 are also subject to affirmative action requirements  The contracting firm must comply with the goals and timetables for employment of women and minorities set periodically by the OFCCP Docsity.com Procedure Under Executive Order No. 11246 (slide 1 of 2)  Individuals alleging a violation of a firm’s obligations under Executive Order No. 11246 may file complaints with the OFCCP within 180 days of the alleged violation  OFCCP may refer the complaint to the EEOC for investigation, or it may make its own investigation  If there is reason to believe that a violation has occurred, the firm is issued a show-cause notice  Firm has thirty days to provide evidence  Within this period, OFCCP is required to make efforts to resolve the violation through mediation and conciliation Docsity.com  If the firm fails to show cause, the director of the OFCCP may refer the complaint to  Secretary of Labor for administrative proceedings  Department of Justice for judicial proceedings  Firms found to be in violation of the obligations under the Executive Order:  May be subject to injunctions and required to provide back pay and grant retroactive seniority to affected employees  May have its government contract suspended or canceled and may be declared ineligible for future government contracts Procedure Under Executive Order No. 11246 (slide 2 of 2) Docsity.com USERRA Notice of Reemployment Requirements  Time period for submitting the notice of reemployment to the employer depends on the length of the military service  Less than 31 days – employee need only report to work on the first full workday after completion of the service  Longer than 30 days but less than 181 days – notice must be submitted not later than fourteen days after completion of service  Longer than 180 days – notice must be submitted not later than ninety days after completion of the period of military service Docsity.com Employer Defenses Under USERRA  Employers are not required to reinstate employees after their military service if  Employer’s circumstances have changed so that reemployment would be unreasonable or impossible  Reemployment would cause undue hardship in accommodation, training, or effort  Initial employment was for a brief, nonrecurring period Docsity.com Reemployment Requirements Under USERRA  Employees reemployed after military service are entitled to  Seniority, rights, and benefits they had as of the date the military service began, plus  Any seniority, rights, and benefits that they would have received had they remained continuously employed  Persons reemployed under the act after military service of  More than 180 days may not be discharged without cause within one year of reemployment  More than 30 days but less than 180 days may not be discharged without cause within 180 days of reemployment Docsity.com Velázquez-García v. Horizon lines of Puerto Rico, Inc.  Facts:  Garcia was discharged from his supervisory position because his side business cashing checks for employees violated the company's Code of Business Conduct. He sued his former employer, alleging he had been fired due to his military service in violation of USERRA.  Issue:  Whether employee's military status was at least a motivating factor in his dismissal  Decision:  Horizon has not met its burden of showing that no reasonable jury could find that Garcia's check-cashing business was a mere pretext for his dismissal. Horizon points only to the Code violation and, under USERRA, that is not enough. Docsity.com Unfair Labor Practices  The unfair labor practice prohibitions of the National Labor Relations Act (NLRA) may be used to attack discrimination in employment in some instances  Employers and unions that negotiate, or attempt to negotiate discriminatory provisions in seniority systems, pay scales, or promotion policies may commit unfair labor practices in violation of Section 8(a)(5) or Section 8(b)(3) by refusing to bargain in good faith Docsity.com Constitutional Prohibitions Against Discrimination  Apply only to government employers and private employers acting under government support or compulsion  Due Process and Equal Protection  Primary constitutional provisions used to attack discrimination and are found in the Fifth and Fourteenth Amendments  Fifth Amendment applies to the federal government  Fourteenth Amendment applies to state and local governments Docsity.com Other Constitutional Issues  Classifications that may be more neutral than racial classifications are referred to as nonsuspect classes  Nonsuspect Class: A basis of discrimination, classification, or differential by government action which is neutral with regard to race, color, gender, religion or national origin, and which is related to related to legitimate government interests  When discrimination is based on nonsuspect classes, the court will consider whether the discriminatory classification bears a reasonable relationship to a valid state interest  The classification of applicants on the basis of veteran status was reasonably necessary for the valid government objective of rewarding veterans for the sacrifices of military service Docsity.com The Working Law  The U.S. Supreme Court declined to grant leave to appeal on a constitutional challenge to the military’s “don’t ask, don’t tell” policy.  Twelve persons were dismissed from the armed services who have allegedly engaged in homosexual acts.  The trial court held that the policy did not violate the due process right, the equal protection rights, or the First Amendment rights of the plaintiffs.  The U.S. Court of Appeals for the First Circuit affirmed the trial court’s decision.  Major Margaret Witt, an Air Force flight nurse was dismissed alleging that she had long-term relationship with a female civilian.  The Ninth Circuit held that the Air Force must demonstrate that the application of the “don’t ask, don’t tell” policy to Major Witt significantly furthers the interest of troop readiness and unit cohesion, and that no other “less intrusive means” would substantially achieve those interests. Docsity.com State EEO and Employment Laws  Most states also have their own equal employment opportunity legislation or regulations  Persons complaining of employment discrimination must file with the appropriate state or local EEO agency before taking their complaint to the federal EEOC Docsity.com Whistleblower Provisions  Criminal provisions make it a federal crime to retaliate knowingly against persons who provide information to law enforcement officials relating to the possible commission of any federal offense  Penalties include fines of up to $250,000 and imprisonment of up to ten years for individual violators and fines of up to $500,000 for corporations  The civil whistleblower provisions are administered by the Department of Labor, and provide for remedies including reinstatement, back pay, legal fees and costs, and compensatory damages  The whistleblower provisions of Sarbanes-Oxley do not apply to foreign citizens working abroad for foreign subsidiaries of U.S. corporations Docsity.com Henry v. City of Detroit  Facts:  Henry was a commander in the Detroit Police Department. During the trial of Lessnau’s suit, Henry was called as a witness and testified that the department rules concerning the board of review were violated and the board of review was not allowed to perform its duties. He was given the choice of taking an early retirement or a demotion for acting as a witness and testifying against the violation of department’s rules concerning the board of review  Issue:  Whether Henry established a prima facie case of retaliation because of his whistle blowing  Decision:  The court held that Henry had presented a prima facie violation of the MWPA for consideration by the jury and affirmed the trial court’s award of damages to Henry Docsity.com Criminal Records and Polygraph Testing  Criminal Records  Federal EEO laws do not specifically prohibit employment discrimination based on criminal record  Refusing to hire applicants because of their arrest records may be in violation of Title VII  Polygraph Testing  The federal Employee Polygraph Protection Act of 1988 (EPPA) severely restricts the right of private employers to require employees to take polygraph, or “lie detector,” tests  The EPPA does not apply to public sector employers  It prohibits private sector employers, unless they fall under exceptions  The EPPA requires that any polygraph test must be administered by a validly licensed examiner Docsity.com Polkey v. Transtecs Corporation  Facts:  Polkey was working with Transtecs Corporation and was discharged for refusing to submit to a polygraph exam. She filed a suit alleging Transtecs violated the EPPA by unlawfully requesting her to take a polygraph exam. the company aimed to test all of its employees only in order to absolve the company of any responsibility for the theft.  Issue:  Whether a request made to take a polygraph exam is in violation of the Employee Polygraph Protection Act (“EPPA”)  Decision:  The court held that allow such blanket testing under the ongoing investigation exemption would violate Section 2006(d)(3)’s requirement of reasonable suspicion as to each individual employee. Docsity.com Honesty Testing  Honesty Tests: Employment tests used by employers as a screening device to evaluate employees or applicants on various workplace behaviors such as truthfulness, perceptions about employee theft, admissions of theft, and drug use  Honesty tests seek to measure various workplace behaviors such as  Truthfulness  Perceptions about the pervasiveness of employee theft  Illegal drug use  Admissions of theft  The federal EPPA does not prohibit honesty testing, and neither do most state legislations Docsity.com Off-Duty Conduct  A number of states protect employees from employment discrimination because of their lawful, off-the-job conduct  This legislation is mainly designed to protect smokers or tobacco users from employment discrimination as long as their tobacco use is off duty Docsity.com