New Trends and Developments in Employment Law Job Description, Career as a New Trends and Developments in Employment Law, Salary, Employment

The employment policy of the United States over the course of the twentieth century and into the twenty-first evolved to emphasize greater inclusion of all people seeking employment. The American workforce has grown dramatically and has diversified to include more women and minorities. These changes began with the massive entry of women and African Americans into the workforce during World War II. The number of minorities in the labor force will continue to increase in the twenty-first century primarily because of immigration and also because of federal policies that encourage minority hiring and promotions. The number of older Americans in the workforce will also increase, due to the rising age of the American population and the erosion of retirement benefits. New employment laws place obligations and limits on employers and confer new rights on prospective and present employees. Because these developments affect all of us, we should be acquainted with these rights and obligations and be aware of the new problems that arise in a changing labor force.

BASIC FEDERAL RIGHTS

Congress has provided many rights for job applicants and employees to ensure that all Americans have an equal opportunity in securing employment and gaining advancement. Under some of the basic employment rights provided by Congress since 1963, it is unlawful for employers to:

1. discriminate in employment on the basis of race, color, religion, sex, or national origin, provided the employer has a workforce of at least fifteen persons (Title VII of the Civil Rights Act of 1964);
2. not pay male and female employees equally when they perform the same or substantially similar kinds of work (the Equal Pay Act of 1963);
3. use age as a determining factor in hiring, promoting, or discharging employees age forty and over, where the employer employs more than twenty employees (the Age Discrimination in Employment Act of 1967);
4. discriminate against persons with disabilities who are otherwise qualified, with or without reasonable accommodation, to perform the essential functions of a job (the Americans with Disabilities Act);
5. discriminate against Vietnam veterans if the employer is a contractor or sub-contractor of the federal government and its contracts equal or exceed $10,000 (the Vietnam Era Veterans Readjustment Assistance Act);
6. discharge an employee for reporting health or safety violations on the employer's premises (the Occupational Safety and Health Act);

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Melissa J. Doak is a freelance writer of reference books and educational materials.

• 7) require the employee to work in an unsafe or hazardous area without providing adequate safeguards (the Occupational Safety and Health Act);
• 8) deny most employees the right to take leave to provide care for a child, spouse, or other close relative in a medical emergency or related to the birth or adoption of a child (the Family and Medical Leave Act).

The Civil Rights Act of 1991 made it easier for employees to bring charges of discrimination in hiring, promoting, or firing against an employer. The responsibility for disproving a charge is now on the employer. And, if the court finds workplace discrimination, the employee is entitled to receive payment for damages and for jury trials. The court can also order the employer to rehire, promote, or reassign the employee to whatever job he or she lost because of the discrimination.

Most states also have placed limits on employer actions, enacting laws that address many of the same issues. For example, almost all states have statutes barring discrimination based on race, color, national origin, religion, and sex. Many states also prohibit other types of discrimination (for example, discrimination based on ancestry, marital status, or sexual or political orientation). In employment law, the federal statutes provide the minimum protections for employees, but many state laws provide employees with additional rights and place greater limitations on employers.

LIMITATIONS ON EMPLOYERS' RIGHTS

Discrimination

By law, an employer cannot discriminate against employees or prospective employees. An employer who asks, either on an employment application form or in an interview, about an applicant's race, color, sex, religion, national origin, age, marital status, childbearing plans, disability, military service record, or arrest record and then uses the information for an employment decision may be violating federal or state anti-discrimination employment laws. Any employer who advertises a preference for applicants who are members of certain groups (for example, white, female, or Christian) may be unlawfully discriminating against individuals who are not hired.

Employers may be found to be discriminating against employees in two ways. A court may find that an employer treats some people better than others because of their race, color, religion, sex, national origin, age, or some other characteristic. This is called "disparate treatment." For example, a court may investigate a company that has been known to pass over its African American employees for managerial positions, even though it does not have a written policy of not hiring blacks for management.

A court may also find that although an employer's employment practices look neutral in their treatment of different groups, they actually are harsher on one group or another. This is called "disparate impact." For example, a court would question a height and weight requirement used to exclude applicants for a job as a cook. Although a height and weight standard could be justified as a valid business reason if it were clearly related to the physical demands of a job, such as logging, there is no legitimate reason why a cook must be a certain height or weight. And although requiring a cook to meet a height and weight requirement may seem neutral—it wouldn't explicitly require a cook to be white or male—it would have a disproportionate impact on women and people of Asian descent, for example.

Sometimes an employer has a legitimate reason to reject an applicant because of a characteristic. For example, some courts have permitted state prisons to choose to employ only males to guard male prisoners (and female guards for female inmates) where matters of the personal privacy of the inmates are of concern.

Anti-discrimination law continues to evolve to meet new challenges in the twenty-first century. For example, to guard against the misuse of genetic information, which may include information from a genetic test as well as from family medical history, thirty-one states have enacted statutes specific to genetic discrimination in employment. In addition, genetic discrimination has been prohibited in federal employment by an Executive Order signed by the President in February 2000. Under the Executive Order, federal executive agencies cannot use genetic information or family medical history to make employment decisions. Congress also is moving to act in this area. On February 17, 2005, the Senate passed the Genetic Information Nondiscrimination Act of 2005 and moved the bill to the House of Representatives, where it remained in committee as of May 2006.

Another evolving area of anti-discrimination concerns workers' sexual orientation and gender identification. In thirty-four states, it is legal to fire someone based on their sexual orientation; in forty-four states, it is legal to fire someone based on gender identity. However, employers themselves are changing their policies to provide basic protection to gay, lesbian, bisexual, and transgender people in the workplace. Only one of the Fortune 50 companies—ExxonMobil—does not have a sexual-orientation anti-discrimination policy, and 420 of the Fortune 500 companies include sexual orientation in their anti-discrimination policies. The federal government is lagging behind in this area. The Employment Non-Discrimination Act (ENDA), first introduced in Congress in 1996, would expand the nondiscrimination requirement found in Title VII and other laws to include sexual orientation. However, as of May 2006, it had not been rein-troduced to Congress for consideration.

Affirmative Action and "Reverse Discrimination"

Affirmative action plans are designed to increase the representation of minorities, females, Vietnam veterans, and disabled people in the workforce. The federal government has required these plans since 1965 for all government contractors and subcontractors whose contracts with the federal government exceed $10,000. Many levels of government, including the federal government, also have "set-aside" programs that award a certain percentage of contracts to minority- and women-owned businesses. These programs were developed to remedy the effects of past discrimination, and to address the difficulties these generally small firms faced in competing with larger, more established firms for government contracts.

Affirmative action plans that include goals and timetables (but not quotas) have gained wide acceptance in industry, but they have also been subject to a debate that sharpened during the 1990s and early 2000s. Some critics have charged that such plans are contrary to the ideal of true equality, at least where there is no proof that an employer directly discriminated in the past against individual employees who would now benefit from the plan. They further argue that such plans have resulted in reverse discrimination—in other words, discrimination against non-Hispanic white males. Others claim that such plans are crucial to ensure that employers do not engage in discriminatory employment practices. Still others urge that race-conscious numerical goals should be used to ensure the representation of minorities or other groups in particular workforces, regardless of whether there is actual discrimination against individuals.

Congress and the voters and legislatures in the states may decide whether affirmative action will continue to play a role in employment. In California and Washington, for example, voters supported referenda ending the use of affirmative action in state employment and the awarding of state contracts. In the U.S. Congress, there have been several attempts to end affirmative action set-aside programs that allocate money to socially and economically disadvantaged businesses (primarily minority- and women-owned businesses). Court rulings have fueled this legislative movement. The U.S. Supreme Court has issued rulings that require courts to closely look at the use of racial classifications in awarding government contracts. In June 2000 a federal court decided in Associated General Contractors of Ohio v. Sandra A. Drabnik, that the Ohio state set-aside program was unconstitutional.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) defined a disabled individual as someone who had physical or, in some cases, mental impairment that substantially limited a major life activity, such as the ability to see, hear, breathe, speak, walk, learn, or work. The regulations further define "substantially limit" to mean that a person cannot perform a major life activity that an average person can perform or that the person's condition significantly restricts the manner or duration of that performance.

While polls indicate that most disabled individuals want to work, only a third are employed even part time because of various barriers to employment, including accessibility problems, technology deficits, and prejudice against people with disabilities. The ADA was meant to begin addressing these problems by requiring employers and other public facilities to be more accessible to people with disabilities. It is illegal for a company to fire or refuse to hire someone simply because that person has a disability. Employers are also prohibited from using pre-employment medical examinations before they offer an applicant a job; they may require a physical examination of an applicant, but only after making a contingent job offer. An employer may withdraw a contingent offer if the post-offer examination reveals that the applicant is unable to perform the essential functions of the position sought.

The ADA requires employers to provide worksite accommodation for people with disabilities. The ADA defines reasonable accommodation broadly and provides examples: making existing facilities used by employees readily accessible to and usable by individuals with disabilities; job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modification of examinations, training materials, or policies; the provision of qualified readers or interpreters and other similar accommodations for individuals with disabilities; and making non-work areas, such as break rooms, locker rooms, or rest rooms, accessible to all employees. Employers and people with disabilities are required to engage in an interactive process designed to determine whether the individual can perform a job or needs an accommodation. If the individual needs an accommodation, the guidelines state that the parties should work cooperatively to achieve a workable solution.

The law applies to people with mental illness and AIDS, as well as to those with physical disabilities including obesity. Some of the more vexing issues under the ADA involve an employer's obligation to accommodate people with mental disabilities. In a 1997 Enforcement Guidance, the Equal Employment Opportunity Commission (EEOC) noted that the ADA protected people with mental illnesses, including depression, anxiety disorders (which include panic disorder, obsessive–compulsive disorder, and post–traumatic stress disorder), schizophrenia, and personality disorders.

Acquired immunodeficiency syndrome (AIDS) is also a disability protected by the ADA. AIDS is caused by the human immunodeficiency virus (HIV). It is transmitted through bodily fluids. The disease undermines a person's immune system and leaves it powerless to battle certain cancers and other potentially fatal illnesses. There is currently no cure for the disease. For the employer, AIDS has created the fear of substantial liability if an employee infects a coworker. However, medical experts agree that the risk that someone will get the disease from normal workplace conduct (outside of hospitals, medical labs, or medical research facilities) is almost nonexistent. For this reason and based on a Supreme Court case that held that a person with a communicable disease (tuberculosis) was protected under federal law prohibiting discrimination against the disabled, employers may not discriminate against someone who has AIDS or HIV.

Age Discrimination

Discrimination in employment based on age will become an increasingly significant problem as the U.S. population ages. By 2020, most of the baby boomers will be senior citizens. At that time, more than 54.6 million Americans will be age sixty-five or older, up from 35.1 million in 2000.

At the same time, some of the safety nets for older Americans that had been in place since the mid-twentieth century may be eroding. The age at which Americans can receive full retirement benefits from Social Security is rising; those born in 1960 or later will not receive full benefits until age sixty-seven. Federal budget constraints also may reduce health benefits for the elderly under Medicare. Many older Americans will need to work to survive.

Employees age forty and older are protected by the Age Discrimination in Employment Act (ADEA) of 1967 from discriminatory employment practices with respect to hiring, promotion, or discharge. In 2005 the national EEOC office received 16,585 age discrimination complaints—obviously, age discrimination continues to represent a significant proportion of discrimination complaints filed with the EEOC.

It is still lawful, of course, not to hire or to discharge an employee who is unable to perform necessary job duties in a safe and efficient way. It is also lawful to discharge an employee who lacks the necessary technical knowledge to continue in the position. The deciding factor in whether not to hire or to discharge an employee must be not age but the employee's ability to perform the duties required by the position.

There are, however, some jobs in which age can be a ground for discrimination. Airline pilots, bus drivers, police officers, and state troopers have been subjected to age limitations by statute or regulation. Courts have upheld such employment practices because of the safety risks that would arise from sudden incapacitation, such as a stroke or heart attack. Such medical occurrences are associated with advancing years and cannot be readily predicted. Age, in this limited context, has been considered a genuine occupational qualification. Under federal law, age discrimination in these cases is "reasonably necessary to the normal operation of the particular business."

ADDITIONAL LEGAL EMPLOYMENT ISSUES

Sexual Harassment

Employees have gained protection not only from direct adverse actions from their employer but also from certain unjustified treatment while on the job. Awareness of sexual harassment has increased in recent years, in part because of complaints and class-action lawsuits against large corporations and in part because of high-profile accusations of sexual harassment against such public officials as President Bill Clinton and Supreme Court Justice Clarence Thomas.

The EEOC defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that affects an individual's employment, interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment. According to the EEOC, the commission received 12,679 charges of sexual harassment in fiscal year 2005, down from a high of 15,836 filed in 2000. The percentage of sexual harassment charges filed by men has increased substantially since 1992 (from 9.1 percent to 14.3 percent).

Meritor Savings Bank v. Vinson

The U.S. Supreme Court, in the landmark case Meritor Savings Bank v. Vinson (477 U.S. 57, 1986), ruled that sexual harassment was a violation of Title VII of the Civil Rights Act of 1964, which prohibited sexual discrimination. Mechelle Vinson claimed that her supervisor harassed her at work and outside of work and raped her. A lower court ruled against her, finding that sexual favors had not been a condition of her employment. The Supreme Court reversed the decision, ruling that "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult."

The Employer's Responsibility

In 1998 the Supreme Court ruled that (1) employers could be held liable when a supervisor threatened to demote or take other action against an employee who refused a supervisor's sexual demands, even when the threats were not carried out (Burlington Industries v. Ellerth [66 LW 4643]), and (2) that companies were liable for the misconduct of their employees even though the company was unaware of the behavior (Faragher v. Boca Raton [118 S. Ct. 2275, 1998]). The Court's majority decision (seven to two) stated that employers could generally avoid liability for sexual harassment by showing that they had strong anti-harassment programs, that the programs were communicated to all employees, and that systems were in place for submitting and reviewing complaints. Following these rulings, many companies reexamined their sexual harassment policies and revised them to meet the Court's tougher standards.

Equal Pay for Equal Work

In 1964 Congress made it unlawful for an employer to pay different wages to male and female employees "for equal work on jobs the performance of which requires equal skills, effort, and responsibility, and which are performed under similar working conditions." The concept of equal pay for equal work, although not controversial, is difficult to apply. Jobs need not be absolutely identical to be equal but must be substantially similar. In close cases, courts will refer to the skill, effort, responsibility, and working conditions under which the jobs are performed to determine whether they are substantially similar. Betty Dukes had been a cashier at Wal-Mart for nine years and had not been able to get promoted in that time; Stephanie Odle was being paid $10,000 less than a male coworker in the same position. These two women, along with ninety-eight others, filed a sex discrimination lawsuit against Wal-Mart that led to the largest class action in history. On June 21, 2004, a federal judge in San Francisco certified a class action against Wal-Mart involving 1.6 million women.

A new form of sexual discrimination involves the dilemmas of single mothers. One single mother living and working in New York City was a key player in her company's success. The result of her achievements was an increased demand on her time, making it virtually impossible for her to raise her daughter. When she said that she could not work the longer hours, she was fired. In Massachusetts and California, two women have taken similar cases to court, only to lose because at-will employees can be fired "for any reason or for no reason at all." Another case that may have an impact on this area is one in which twelve current and former female employees of Novartis Pharmaceuticals Corp. filed a $100 million sex discrimination lawsuit against the company in February 2005. Their attorneys maintain that the New Jersey firm's employment practices are unfair to working mothers.

Employee Benefits

Family Leave

In 1993 Congress enacted the Family and Medical Leave Act. The act requires employers with fifty or more employees within a seventy-five-mile radius to provide up to twelve weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons. An employee is considered eligible if he or she has worked for the employer for at least one year and for more than 1,250 hours during the preceding twelve months. An employee may take this leave because of the birth of a child or the need to care for his or her child; the adoption of a child; the care of a seriously ill spouse, child, or parent; or the need to care for his or her own health impairment.

Although the statute requires the employer to provide the employee with unpaid leave, it also permits the employee to use whatever paid leave may be available. Employees must give an employer at least thirty days' advance notice of the request for leave, but this requirement may be waived in an emergency. The law also states that the employer must return the employee to the same position or to an equivalent position, with the same benefits, pay status, and other terms and conditions of employment.

Many employers, often at the insistence of labor unions, rely on some form of seniority system to determine which employees will get certain benefits. Seniority is often regarded by employees as the most valuable feature of their jobs, entitling them to such benefits as preferred shifts, desirable vacation time, opportunity to engage in or to avoid overtime, job security, and early recall rights. Systems that protect these interests are usually strenuously defended from challenge.

A number of the federal employment laws that make discriminatory employment practices unlawful explicitly permit employers to maintain seniority plans. Employers who use seniority systems are not engaging in discriminatory employment practices if the seniority system was not adopted to discriminate against employees. This is so even when the seniority system perpetuates the effect of past discriminatory employment practices. When a disabled worker at U.S. Airways requested reassignment to a vacant position and more senior workers had the right to bid for the job under the company's seniority system, U.S. Airways decided to allow seniority to trump the disabled employee. The disabled employee filed suit under the ADA but lost when the U.S. Supreme Court ruled in 2002 that seniority systems generally prevail over disabled workers' rights.

Drugs in the Workplace

Workplace drug testing began in the 1980s. The Reagan administration advocated such testing as part of its War on Drugs. As a result, a number of states have enacted statutes that regulate employer use of drug testing. Several statutes place severe limits on an employer's right to test applicants and employees, whereas other statutes are much more limited in focus. Various courts also have ruled that drug testing is intrusive and involves the protection against unreasonable searches and seizures contained in the Fourth Amendment of the U.S. Constitution. The Supreme Court has ruled, however, that in certain circumstances a drug-testing program does not constitute an unreasonable search and seizure where significant public interests are at stake. It gave the federal government broad discretion to impose drug-testing requirements on both private employees and government workers whose duties involve public safety or law enforcement. In 2006 a variety of legal challenges to drug testing policies were pending.

The law says that an employee may be tested on several occasions. The first is during an applicant's pre-placement physical. Medical personnel may request that applicants provide urine and blood samples for detection of illegal and prescription drugs. If an applicant tests positive for illegal substances, he or she usually will be denied employment. When the drug test is positive for a prescription medication such as Valium, the applicant may be asked to provide a letter from the prescribing physician explaining the purpose of the medication. If a prescription medication may adversely affect a person's ability to safely perform a job, the applicant may legally be barred from being hired.

An employee may be tested for drug use during an annual physical examination, randomly during the year, "for cause," or after an accident. Drug testing during the annual physical or done randomly may deter substance abuse, but such testing has legal implications. Employees who test positive are subject to disciplinary action or termination. They also may be referred to an EAP or for professional evaluation and recommended for individual or group counseling, outpatient care, or hospitalization. Those testing positive for illegal drugs after an accident may be denied unemployment, worker's compensation, or disability benefits.

One federal law requires that certain employers maintain drug-free workplaces and develop drug education and training programs. The Drug-Free Workplace Act of 1988 requires that government contractors and recipients of federal financial assistance maintain drug-free workplaces and develop drug education and training programs. Such policies, at a minimum, must inform employees that possession, distribution, or use of a controlled substance in the workplace is prohibited, and must indicate what actions the employer will take against employees who violate the policy. Employers also are required to develop "drug-free awareness" programs to educate employees about the dangers of drug abuse in the workplace, the employer's policy concerning drugs, the availability of counseling or employee assistance for employees in need of such help, and the penalties applicable for violations of the policy. Noncompliance with this law may result in the termination of the employer's contract or grant.

ENDING THE EMPLOYMENT RELATIONSHIP

Employment at Will and Its Exceptions

Courts have long recognized that when an employee is hired for an indefinite term, either the employer or the employee may terminate the employment relationship at any time. This is known as "employment at will." Since World War I, new laws and legal developments have limited the concept of employment at will. For example, both the Railway Labor Act of 1926 and the National Labor Relations Act of 1935 make it unlawful to fire or otherwise discriminate against employees because of their involvement in protected union activity. It is not that these laws make it illegal to fire an employee for no reason; rather, they make it illegal for an employer to fire an employee for the wrong reason.

The list of "wrong reasons" has grown rapidly. In addition to being illegal to fire an employee for union activity, it is now unlawful under federal law for an employer to discharge an employee for exercising rights in an employee benefit plan; having his or her wages garnisheed; performing jury service; declaring bankruptcy; participating in an investigation, proceeding, or hearing brought against the employer for discriminatory employment practices; or opposing the discriminatory practices of the employer.

Furthermore, federal law makes it unlawful to discharge an employee for "whistle-blowing," that is, for notifying the employer or an appropriate authority of violations of federal safety and environmental laws on the employer's premises. In addition, several states have passed laws protecting those who report violations of state law. In May 2002 Congress passed the Federal Antidiscrimination and Retaliation Act. This law requires that federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.

Court decisions have also limited employers' rights to terminate employment at will. If an employer has made a policy statement or has otherwise given assurances that the employee will not be fired without cause, courts may find implied contract rights in favor of the employee. For instance, in a case in which an employer's personnel manual contained statements of policy regarding termination of employment and did not contain a disclaimer protecting the employer's freedom of action, a court found an implied contract that the employee would not be discharged except for just cause. In addition, if a termination occurs in an unnecessarily humiliating manner or otherwise causes the employee severe emotional distress, without adequate justification, the employee may have an actionable claim against the employer.

Defamation

Defamation concerns strike at the heart of information collection and distribution about individuals, and are a significant cause of employer concern. Defamation is a legal term meaning any communication that causes someone to be shamed, ridiculed, or to suffer from a damaged reputation. Employers have limited rights to make negative statements about current or former employees, but this privilege may be lost if the information clearly is false or is shared with people who do not have a need to know. Because of the threat of lawsuit, employers have become hesitant to share information about employees with others and wary about keeping records necessary for use in employee assessment and personnel actions. However, if incomplete information is documented about an employee who is fired, an employer may face charges for wrongful discharge or discrimination.

Worker Adjustment and Retraining Notification Act

The Worker Adjustment and Retraining Notification Act (WARN) provides for mandatory notice of employer plant closing and mass layoff. WARN requires covered employers to provide their employees (or their employees' union representative, if any) and certain state and local government officials with written notice sixty days in advance of a plant closing or mass layoff. A company that fails to provide adequate notice can be liable for back pay, lost benefits, attorney's fees, and other civil penalties.

Although Congress had manufacturing industries in mind when passing what generally is thought of as a plant-closing bill, WARN is not limited to any particular business sector. It applies to all employers with one hundred or more full-time employees. WARN is also not limited to hourly workers but covers all employees.