Human Rights Issues
1. Race Discrimination
Title VII prohibits racial discrimination, including bias on the basis of ancestry or ethnic characteristics such as skin color and facial features. The statute protects against racial discrimination in all aspects of employment, including hiring and firing, wages, promotions, use of company facilities, and all other terms and conditions of employment.
In addition, employers must maintain an atmosphere free of racial intimidation. As with sexual harassment, complainants must show either an unreasonably abusive or offensive work environment, or that the harassment adversely affected a reasonable employee’s ability to perform the job. In these situations both the Union and the employer may be found liable if the harassed individual can show that the employer either knew or should have known about the harassment and did nothing to stop it.
Public Employees – Racial discrimination in employment may also be constitutionally forbidden by public employers under the equal protection or due process guarantees of the Fifth or Fourteenth Amendments to the United States Constitution.
2. Sex Discrimination
Title VII prohibits sex discrimination with respect to employment. Discrimination based on sex also includes sexual harassment, pregnancy issues, fetal protection policies and sex-based differences in employee benefits.
Gender-based discrimination – It is unlawful under Title VII for an employer (including a union as an employer) to refuse to hire, to discharge, or in any manner discriminate, limit, segregate, or classify employees on the basis of sex. It is also illegal for an employment agency or a union organization to discriminate on the basis of an individual’s gender.
Sexual harassment – Sexual harassment is a form of illegal sex discrimination defined by the EEOC as “unwelcome sexual conduct that is a term or condition of employment.” Two types of sexual harassment are actionable under Title VII including “quid pro quo” (this for that) and hostile work environment. Quid pro quo occurs when submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual. Hostile work environment sexual harassment is unwelcome sexual conduct that unreasonably interferes with an individual’s job performance or creates an intimidating, hostile or offensive working environment. There are three main issues involved in a determination of whether illegal sexual harassment has occurred. First, the unsolicited sexual conduct must be unwelcome, offensive and/or undesirable. Second, to violate Title VII the conduct must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and to create an abusive working environment. Finally, whether an employer can be held liable for the conduct of supervisors, co-workers, or others in the workplace may depend upon the type of harassment, the apparent authority of the harasser, the knowledge that can be imputed to the employer, and the action taken to prevent or correct the situation.
Pregnancy/Maternity Issues – Discrimination based on gender under Title VII also includes discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” These provisions were added by the 1978 Pregnancy Discrimination Act. Under this Act pregnant employees must be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. Employers may not fire or refuse to hire or promote a woman based on her pregnancy, nor may they force a pregnant employee to take a mandatory leave that is not based on an individual ability to perform essential job functions.
Insurance and Other Benefits – The EEOC has taken the position that benefits are wages for the purpose of the Equal Pay Act and that discrimination on the basis of pregnancy with regard to fringe benefits amounts to sex discrimination. Temporary disability coverage offered to male employees must be granted on an equal basis to female employees for the temporary disability of pregnancy and childbirth.
Fetal Protection Policies – Policies excluding all women capable of childbearing from certain jobs that will expose them to substances potentially hazardous to fetuses were struck down by the U.S. Supreme Court as discriminatory under Title VII.
Fringe Benefits – Under both Title VII and the Equal Pay Act it is unlawful to discriminate on the basis of gender in “compensation, terms, conditions or privileges of employment.” Fringe benefits, which include medical, hospital, accident and life insurance, retirement benefits, profit sharing and bonus plans, leave and other such concepts, are part of the privileges of employment and may not be doled out in a discriminatory manner.
3. Religious Discrimination
Title VII prohibits employers from discriminating on the basis of religion in hiring practices, promotion decisions, leave policies, and other employment actions. Any sincerely held religious, moral or ethical belief is entitled to the law’s protection. An employer is required to “reasonably accommodate” employees’ religious observances or practices, unless it can demonstrate that such accommodation would create an “undue hardship” on its business. A reasonable accommodation does not have to be the least restrictive or the one suggested by the employee. Also, an accommodation that requires an employer to bear more than a minimal cost or to violate a valid seniority system or collective bargaining agreement is an undue hardship.
4. National Origin and Citizenship Discrimination
Discrimination on the basis of national origin or “ethnicity” is prohibited by Title VII for employers with 15 or more workers. Although not specifically defined in the statute, “national origin” has been defined as “the country of one’s ancestry.” Although Title VII does not cover discrimination based upon citizenship, requirements that have the effect of discriminating on the basis of national origin may be illegal. The EEOC also considers English-only rules to be illegal. Also, as with race bias, harassment in the form of ethnic slurs or other verbal or physical conduct related to national origin may violate the statute.
Immigration Reform and Control Act of 1986 (IRCA) – Discrimination on the basis of citizenship or national origin is also prohibited under the IRCA. The IRCA requires employers to verify that all employees hired after November 6, 1986 are authorized to work in the United States. In addition, the IRCA prohibits all employers with at least four employees from discriminating on the basis of national origin or citizenship. The IRCA prohibits discrimination in hiring, and prohibits firing, intimidating, threatening, coercing, or retaliating against any individual who files or intends to file a charge or complaint.
In addition, employers are prohibited from asking only individuals who look or sound foreign or who are of a particular national origin for documents showing proof of their identity and work authorization. To obtain information about filing a charge of National Origin or Citizenship discrimination under the IRCA, contact the Office of Special Council at 1-800-255-7688 (hearing impaired 1-800-237-2515).
Note that national origin discrimination charges may be filed under either Title VII or the IRCA if the employer has 15 or more employees. For questions regarding national origin discrimination under Title VII call 1-800-USA-3302.