Discrimination Paper Research Paper Sample
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HRM320: Employment Law
Over periods of enactments and amendments, current employment discrimination laws seek to thwart employee discrimination based on various aspects such as sex, race, nationality, religion, physical disability, and even age by employers. A mounting body of law correspondingly seeks to prevent employment discrimination based on sexual orientation (Cornell University Law School, n.d. para. 1). According to the Canadian Human Rights Commission, discernment is a deed or a decision that treats an individual or a group of individuals negatively for various reasons collectively known as ground of discrimination. Such reasons include race, age or disability amongst others (2013, para. 1). Discriminatory practices include bias in hiring and firing, job promotions, work assignment, compensation, and various types of harassment
Q1: “What must a person who is claiming they were harassed in the workplace allege in order to first state a case with the EEOC for each of the following types of harassment?”
Sexual harassment – quid pro quo.
“Quid pro quo” is a Latin word meaning “something for something.” Quid pro quo sexual harassment occurs when an authority figure offers that he or she will give the employee something (usually a raise or a promotion) in return for that operative's gratification of a sexual demand. To build a case with EEOC, the claimant (the plaintiff in a lawsuit) must be able to prove the following elements. Firstly, he or she the plaintiff was an employee of or had applied for a job with the company of the alleged harasser. Secondly, the alleged harasser made unwanted sexual advances to the plaintiff either verbally or physically. Thirdly, certain job benefits were conditioned, by words or conduct by the harasser. The benefits were based on the complainant's acceptance of the purported harasser's sexual advances or conduct. He or she should also prove that employment decisions affecting the accuser were made based on the employee's approval or denunciation of the alleged conduct. Lastly, that the alleged conduct substantially harmed the plaintiff.
Sexual harassment – hostile environment.
Hostile work environment claims arise from a situation where an employee is consistently made uncomfortable as a result of his or her gender, even though the actual terms of the job remain unchanged. For one to raise a claim of such kind, the complainant should provide evidence to substantiate his or her allegations. Such evidence could include comments about the employee’s gender being inferior. Other charges may include sexual comments or preferential treatment of people of the claimant's gender differently than the opposite sex.
The federal government protects employees against discrimination based on religion. According to EEOC, religious discrimination implicates treating an individual unfavorably because of his or her religious beliefs (The U.S. Equal Opportunity Employment Commission, n.d. para. 1). For this reason, for one to raise a claim of religious harassment, he or she must show evidence that can include, for example, offensive remarks about his or her religious beliefs or practices. The allegations must demonstrate that the harassment was so frequent or severe that it created a hostile or offensive work environment or that it resulted in an adverse employment decision (such as the victim being fired or demoted).
Just like the other forms of harassment, the plaintiff is legally required to show substantial evidence of racial harassment. Evidence can include racial slurs, offensive or derogatory remarks about a person's race or color, or the display of racially offensive symbols.
Q2: “Explain the difference between sexual harassment, gender discrimination, and sexual orientation discrimination, as those terms are used legally.”
Sexual orientation discrimination comprises being treated differently because of an individual’s real or perceived sexual orientation - whether gay, lesbian, bisexual or heterosexual. Gender discrimination, on the other hand, occurs when an employee is treated less well because of his or her sex. Gender discrimination takes many forms and includes sexual harassment, pregnancy discrimination, and unequal pay for women who do the same jobs as men. Sexual harassment refers to any unwelcome sexual behavior that is likely to offend, humiliate or intimidate an individual.
Q3: “How does GINA protect a person whose mother died of breast cancer from employment discrimination?”
Genetic Information Nondiscrimination Act (GINA) recommend severe restriction of the use of genetic testing and access to genomic information in the workplace (United States Department of Labor, n.d. para. 6). In its Title II, GINA protects a person whose mother died of breast cancer from employment discrimination by prohibiting the use of genetic data in the work. It also confines employers and other entities covered by Title II from requesting, requiring, or purchasing genetic information. It further austerely limits the disclosure of genetic information (U.S. Equal Employment Opportunity Commission, n.d. para. 1). Gina protects individuals by restricting the collection, use, and disclosure of genetic information.
Q4: “Provide one example of a behavior that could be found to be both a hostile environment and quid pro quo forms of sexual harassment at the same time. Explain how a person could argue that this behavior at work was illegal.”
Behavior such as bullying or coercion of a sexual nature can be deemed to be both a hostile environment and quid pro quo. Although these two forms of harassment are theoretically dissimilar claims, the line between them is not always clear. For instance, an employee’s job settings are affected when a sexually hostile work environment results in his or her constructive discharge. Similarly, a figure of authority may communicate an implicit threat to affect an employee's job status harmfully if he or she does not comply.
Q5: “Give the main legal reason why every company should have a valid written policy against all forms of harassment (besides the fact it is the "right" thing to do.)”
Companies should have adequate written policies against all forms of harassment in order to avoid lawsuits. The elimination of any harassment in the workforce is essential for every employer. Valid written policies provide an avenue for that. A financial imperative exists to eliminate both improper and moral conduct, as such behavior can cause an extensive monetary liability imposed by juries that determine workplace harassment has occurred.
Q6: “Can an employer require that only females serve female customers and only males serve male customers? Explain your answer using legal terms.”
Such a requirement would constitute gender discrimination and prejudice. Extreme bigotry that may result from such an arrangement may foster sexual harassment, rape and other forms of sexual violence.
Q7: “How many employees must an employer/company employ to be subject to:”
The ADA. The ADA deals with employers managing 15 employees or more (The U.S. Equal Employment Opportunity Commission, 2008, para. 1).
Pregnancy Discrimination Act (PDA). PDA covers employers with 15 or more employees, including state and local governments. Title VII also applies to employment agencies and labor organizations, as well as to the federal government. Pregnant women or those affected by pregnancy-related conditions must be treated in the same way as other employees with similar capabilities (The U.S. Equal Employment Opportunity Commission, 2008, para. 1).
IRCA. According to EEOC, the number of employees employed to be covered by IRCA varies depending on the type of organization, and the kind of discrimination alleged. For example Coverage of Labor Unions and Joint Apprenticeship Committees apply to all labor organizations that either have at least 15 members or operate a hiring hall (n.d. para. 1).
GINA. GINA applies to private employers, state and local government employers with 15 or more employees, labor unions, employment agencies, and joint labor-management training programs. It also covers Congress, the Executive Office of the President, and federal executive branch agencies. Both the final rule and this document use the term “covered entity” to refer to all entities under the stipulations of the Title II of GINA (The U.S. Equal Employment Opportunity Commission, n.d. para. 3).
Q8: “Assume you work for a company that has a sexual anti-harassment policy, but not a religious, sexual orientation, or racial anti-harassment policy. Write a one-two paragraph statement to your boss (the HR Director), as to why you believe it would make sense to revamp the policy to include other forms of harassment. Include one example of a real situation where a policy may have protected a company from liability or stopped harassment from happening. (You will find case examples on the EEOC website). Cite that case/situation in your memo to your boss. Provide the amount of damages/fines the company in your example case had to pay as a result of failing to protect an employee from discrimination.”
The memo below stems from my concern for the company not having an inclusive policy to incorporate all forms of possible workplace harassment. It is imperative to have such a robust and valid written policy against all forms of harassment in order to avoid lawsuits. The elimination of any harassment in the workforce is imperative as is illustrated by legal Case No. 5:11CV00134, EEOC v. Caldwell Freight Lines (W.D.N.C. Aug. 3, 2012). In the case above, Caldwell Freight Lines had no policy on racial discrimination. As a result, a federal court ordered Caldwell Freight Lines to pay $120,000 as settlement of a racial discrimination complaint stemming from its alleged refusal to hire Black applicants to work on its loading dock (The U.S. Equal Employment Opportunity Commission, n.d. para. 2).
Espinoza v Farah Mfg. Co, 414 U.S. 86 (1973)
“Q1. Explain briefly, the statute(s) (law or act) in question in your case, the facts of the case, and why the parties were in court. What was each party asking the court to do?”
The petitioners, Mr. and Mrs. Espinoza, brought the lawsuit alleging that Farah Mfg. Co refused to hire Mrs. Espinoza in its San Antonio division because of Mrs. Espinoza Mexican citizenship. The statute in question was the violation of Title VII Article 703 of the Civil Rights Act of 1964. The law brands it an unlawful occupational practice for an employer to fail or refuse to hire any individual because of his or her race, color, religion, sex, or national origin. The parties were in court because the petitioner filed a racial discrimination case against Farah Mfg. Co.
“Q2. What did the court decide in your case and what will be the results of that decision? (I.e. who won, and was the win final or did the court send the case back to the lower court system to re-decide an issue?)”
Farah Mfg. Co. won the case against the petitioner Mrs. Espinoza. The court decided that Farah does not discriminate against Mexican nationals with respect to employment in the job Mrs. Espinoza sought. Mrs. Espinoza was denied employment, not because of the country of her origin, but because she had not yet achieved United States citizenship.
“Q3. In what way did this case create, change, or shape the employment landscape for employers as a result of the decision made? Did this change help employers or employees the most? Explain.”
The question posed in the Espinoza v Farah Mfg. Co. case is not whether aliens are protected from illegal workplace discrimination under the Act, but what kinds of discrimination the Act deems illegal. Personal assessment of the evidence reveals that the decision of the court helped the employers most than the employees. The analysis of the case shows that Aliens are sheltered from unlawful discrimination under Title VII of the Civil Rights Act, but nothing in the Act makes it illegitimate to discriminate employees on the basis of citizenship or alienage.
“Q4. Do you agree with the decision in the case you referenced? In other words, do you think that employment law was made better and stronger, or weaker and less effective as a result of this case? Write at least one full paragraph that supports your opinion.”
The court decision was not satisfactory. Personal analysis of the case proceedings reveals that Mrs. Espinoza was a permanent resident alien and legally married to an American citizen. Undoubtedly, for this reason, her children will be native-born American citizens. However, the children will also bore Mexican ancestry. Thus, will they too be judged as their mother because maternal ancestors are Mexican? The inadequacy of the law to cover legitimate aliens makes them the most vulnerable to exploitation and discriminatory treatment. In spite, that the fact that they too have the same tax obligation as American citizens, they never receive equal treatment in the job market.
Legal Research: Pending Bill
S. 347: A bill to amend the Internal Revenue Code of 1986 to provide that the individual health insurance mandate does not apply until the employer health insurance mandate is enforced without exceptions.
“Q2: Does the bill create new law or amend existing law?”
The bill S. 347 is intended to amend the Internal Revenue Code of 1986
“Q3: How this bill will change current employment law? Be specific here and include enough detail so that someone reading your answer really understanding the bill under consideration.”
Sponsored by Republican Deb Fischer Senior Senator from Nebraska, this amendment bill proposes an alternative to single-payer health care. The Bill proposes a health-care reform bill that includes a mandate for employers to provide health insurance to all employees. The law resonates around the Patient Protection and Affordable Care Act (PPACA). PPACA take account of both the employer and individual mandates. The Fischer bill proposes a law that would require both the employees and employers to buy insurance to cater for the employee health insurance.
“Q4: State whether you agree or disagree with the bill. If you were a member of Congress would you vote for it? Explain why.”
I agree with the law, and I would vote for it if I were a member of Congress. The benefits of such a law are evident in the two largest EU countries, France, and Germany. In this countries, Statutory Health Insurance (SHI) mandates both employers and employees pay into statutory sickness funds. As a result, most personnel are indemnified through a compulsory membership of "sickness funds". The Fischer bill envisions such a case.
Canadian Human Rights Commission. (2013, January 9). What is discrimination? | Canadian Human Rights Commission. Retrieved February 8, 2015, from http://www.chrc-ccdp.ca/eng/content/what-discrimination
Cornell University Law School. (n.d.). Employment discrimination | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute. Retrieved February 8, 2015, from http://www.law.cornell.edu/wex/employment_discrimination
The U.S. Equal Employment Opportunity Commission. (2008, September 9). Facts About the Americans with Disabilities Act. Retrieved February 8, 2015, from http://www.eeoc.gov/facts/fs-ada.html
The U.S. Equal Employment Opportunity Commission. (2008, September 8). Facts About Pregnancy Discrimination. Retrieved February 8, 2015, from http://www.eeoc.gov/facts/fs-preg.html
U.S. Equal Employment Opportunity Commission. (n.d.). Significant EEOC Race/Color Cases. Retrieved February 8, 2015, from http://www.eeoc.gov/eeoc/initiatives/e-race/caselist.cfm
U.S. Equal Employment Opportunity Commission. (n.d.). Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008. Retrieved February 8, 2015, from http://www.eeoc.gov/laws/regulations/gina-background.cfm
U.S. Equal Opportunity Employment Commission. (n.d.). Religious Discrimination. Retrieved February 8, 2015, from http://www.eeoc.gov/laws/types/religion.cfm
United States Department of Labor. (n.d.). Genetic Information and the Workplace. Retrieved February 8, 2015, from http://www.dol.gov/dol/aboutdol/history/herman/reports/genetics.htm
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