Perhaps no other area of the law has had such a major impact on American business in such a short period of time as has employment law. Since the 1960's, protection for the employee has been provided through the passage of major laws and regulations. In addition, the courts continue to interpret these laws and regulations on an ever broadening basis.
Ignorance of the law is not a defense when a company is accused by an applicant or employee of employment discrimination. An employer must be aware of these laws and regulations before conducting even one interview. Once a complaint is filed by an employee or applicant who feels he or she has been discriminated against and who is protected under the law, it is up to the employer to prove that there was no discrimination.
Violation of the law can result in severe penalties; and even if found innocent of the charge, defending the case can be very costly in time and money.
The information and procedures in this manual are intended to aid hiring administrators and personnel through a recruitment and selection process that:
1. will initiate equal opportunity recruitment efforts;
2. will not exclude or discriminate against qualified members of protected classes;
3. will provide a fair and proper assessment of all candidates based upon qualifications; and
4. will result in appropriate rationale and documentation to support the selection decision.
A summary of employment laws and regulations follows.
FAIR LABOR STANDARDS ACT (FLSA) OF 1938. The FLSA requires employers to pay employees (a) at a rate equal to the minimum hourly wage for their first 40 hours of work per week, and (b) at a rate of one and one-half the times of their regular rate for hours worked in excess of 40 hours in a work week. Employees exempt from the FLSA's standard minimum wage and overtime requirements are individual exemptions most frequently relied upon by employers such as, the "white collar exemptions" for executives, administrators, and professional employees. (Enforcement Agency: Department of Labor)
EQUAL PAY ACT OF 1963. Prohibits pay differentials on the basis of sex. The act requires that there be equal pay for equal work regardless of sex. "Equal work" means equal skill, effort, responsibility, and working conditions. (Enforcement Agency: U.S. Equal Employment Opportunity Commission).
CIVIL RIGHTS ACT OF 1964, TITLE VII. Prohibits discrimination because of race, color, national origin, religion, sex, pregnancy (including childbirth or related conditions) in any term, condition, or privilege of employment (Enforcement Agency: U.S. Equal Employment Opportunity Commission).
AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA). Prohibits age discrimination in employment against employees age 40 or older. (Enforcement Agency: U.S. Equal Employment Opportunity Commission).
PENNSYLVANIA HUMAN RELATIONS ACT (PHRA). Prohibits discrimination because of race, color, religion, ancestry, age (40 and above), sex, national origin, non job related handicap or disability, or possession of a general education development certificate (GED) as compared to a high school diploma, or retaliation against an individual for filing complaint with the Commission. (Enforcement Agency: Pennsylvania Human Relations Commission).
EXECUTIVE ORDER 11246 Prohibits discrimination against any employee or applicant on the basis of race, sex, color, religion, or national origin and requires affirmative action to ensure that applicants are employed, and employees treated, without regard to race, sex, color, religion, or national origin. (Enforcement Agency: U.S. Department of Labor, Office of Federal Contract Compliance Programs)
THE CIVIL RIGHTS ACTS OF 1971. The 1971 law prohibits employment discrimination committed by persons acting "under color of" state or local laws. It applies to race, color, gender, religious, or national origin discrimination.
TITLE IX OF THE EDUCATION AMENDMENTS OF 1972. This prohibits sex discrimination by all educational programs receiving federal financial assistance.
REHABILITATION ACT OF 1973, SECTION 503. Section 503 states that government contractors and subcontractors must include an affirmative action clause in each government contract and subcontract and must implement affirmative action to employ, advance in employment, make reasonable accommodation, and otherwise not discriminate against handicapped individuals. For purposes of this Act, a handicapped individual is a person "who has a physical or mental impairment which substantially limits one or more of such person's major life activities." Employers with 50 or more employees and contracts exceeding $50,000 must prepare a written Affirmative Action Plan. (Enforcement Agency: U.S. Department of Labor, Office of Federal Contract Compliance Programs).
EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA) OF 1974. Requires a pension program for most employers of greater than 20 employees. In addition, requires an employer to communicate terms of all benefit plans to all employees.
1978 PREGNANCY AMENDMENTS TO THE CIVIL RIGHTS ACT OF 1964 Discrimination in employment "on the basis of sex" is prohibited by the Civil Rights Act of 1964. The 1978 Pregnancy Amendments added S701(k) defining the terms "because of sex" or "on account of sex" to include "because of or on the basis of pregnancy, childbirth, or related medical conditions." A pregnant employee is entitled to the same consideration for promotion as any other employee who is temporarily disabled for a similar period. (Enforcement Agency: U.S. Equal Employment Opportunity Commission).
CIVIL RIGHTS ACT OF 1991 Provides additional remedies and protections in addition to those previously available under Title VII to applicants, employees, and former employees who contend they are victims of employment discrimination. (Enforcement Agency: U.S. Equal Employment Opportunity Commission).
IMMIGRATION REFORM AND CONTROL ACT OF 1986. The Act requires that employees provide, and employers examine, documentation proving that the new employee is a citizen or national of the U.S., an alien lawfully admitted for permanent residence, or an alien authorized to be employed in the U.S. (Enforcement Agency: The specific sanctions authorized by the Act are spelled out in 8 U.S.C. and provide that any employer found to have violated the Act will be ordered to cease and desist from such behavior and pay a civil penalty.)
AMERICANS WITH DISABILITIES ACT OF 1990 Prohibits discrimination against any qualified individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the position. A disabled individual is defined as an individual who has any physical or mental impairment that substantially limits one or more major life activities. AIDS, mental illness, drug addiction, and alcoholism are considered handicaps or disabilities. (Enforcement Agency: U.S. Equal Employment Opportunity Commission--along with the Department of Justice).
OLDER WORKERS BENEFIT PROTECTION ACT OF 1990 Amends the age discrimination act to prohibit employers from reducing benefits because of an employee's age.
VIETNAM ERA VETERANS' READJUSTMENT ASSISTANCE ACT OF 1974 Requires affirmative action to employ and advance in employment qualified disabled veterans of all wars and veterans of the Vietnam era. Veteran of the Vietnam era means a person who served more than 180 days of active military, naval, or air service, any part of which was during the period August 5, 1964, through May 7, 1975, and (1) was discharged or released there from with other than a dishonorable discharge, or (2) was discharged or released from active duty because of a service-connected disability. (Enforcement Agency: U.S. Department of Labor, Office of Federal Contract Compliance Programs).
EQUAL EMPLOYMENT OPPORTUNITY ACT, 1972 Amendments to the Civil Rights Act permit the EEOC to bring enforcement actions in the federal courts.
VOCATIONAL REHABILITATION ACT, 1973 Requires federal contractors to take affirmative action to employ and promote qualified handicapped persons.
DRUG-FREE WORKPLACE ACT, 1988 Requires employers with federal contracts to establish policies and procedures to create a drug-free workplace and to make a good-faith effort to maintain a drug-free workplace.