Facts About Age Discrimination

 

Local Ordinance 199-94 and the Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age.  These laws' protections apply to both employees and job applicants.  Under these laws, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment - including, but not limited to hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

 

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Local Ordinance 199-94 and  the ADEA.

 

Apprenticeship Programs

 

It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate on the basis of an individual's age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under Local Ordinance 199-94 and the ADEA of if the EEOC grants a specific exemption.

 

Job Notices and Advertisements

 

Local Ordinance 199-94 and the ADEA makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements.  As a narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a "bona fide occupational qualification" (BFOQ) reasonably necessary to the essence of the business.

 

Pre-Employment Inquiries

 

Local Ordinance 199-94 and the ADEA does not specifically prohibit an employer from asking an applicant's age or date of birth.  However, because such inquiries may deter older workers from applying for employment or otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by Local Ordinance 199-94 and the ADEA.

 

Benefits

 

The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees.  An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

 

Waiver of ADEA Rights

 

At an employer's request, an individual may agree to waive his/her rights or claims under the ADEA.  However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid.  Among other requirements, a valid ADEA waiver: (1) must be in writing and be understandable; (2) must specifically refer to ADEA rights or claims; (3) may not waive rights or claims that may arise in the future; (4) must be in exchange for valuable consideration; (5) must advise the individual in writing to consult an attorney before signing the waiver; and (6) must provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it.  In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive.

 

 

 

 

Facts About National Origin Discrimination

 

Local Ordinance 199-94 and Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of national origin as well as race, color, religion and sex.

 

It is unlawful to discriminate against any employee or applicant because of an individual's national origin.  No one can be denied equal employment opportunity because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.  Equal employment opportunity cannot be denied because of marriage or association with persons of a national origin group; membership or association with specific ethnic promotion groups; attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or a surname associated with a national origin group.

 

Speak-English-Only Rule

 

A rule requiring employees to speak only English at all times on the job may violate Local Ordinance 199-94 and Title VII, unless an employer shows it is necessary for conducting business.  If an employer believes the English-only rule is critical for business purposes, employees have to be told when they must speak English and the consequences for violating the rule.  Any negative employment decision based on breaking the English-only rule will be considered evidence of discrimination if the employer did not tell employees of the rule.

 

Accent

 

An employer must show a legitimate nondiscriminatory reason for the denial of employment opportunity because of an individual's accent or manner of speaking.  Investigations will focus on the qualifications of the person and whether his or her accent or manner of speaking had a detrimental effect on job performance.  Requiring employees or applicants to be fluent in English may violate Local Ordinance 199-94 and Title VII if the rule is adopted to exclude individuals of a particular national origin and is not related to job performance.

 

Harassment

 

Harassment on the basis of national origin is a violation of Local Ordinance 199-94 and Title VII.  An ethnic slur or other verbal or physical conduct because of an individual's nationality constitute harassment if they create an intimidating, hostile or offensive working environment, unreasonably interfere with work performance or negatively affect an individual's employment opportunities.  Employers have a responsibility to maintain a workplace free of national origin harassment.  Employers may be responsible for any on-the-job harassment by the agents and supervisory employees, regardless of whether the acts were authorized or specifically forbidden by the employer.  Under certain circumstances, an employer may be responsible for the acts of non-employees who harass their employees at work.

 

Immigration-Related Practices Which May Be Discriminatory

 

The Immigration Reform and Control Act of 1986 (IRCA) requires employers to prove all employees after November 6, 1986, are legally authorized to work in the United States.  IRCA also prohibits discrimination based on national origin or citizenship.  An employer who singles out individuals of a particular national origin or individuals who appear to be foreign to provide employment verification may have violated both IRCA and Title VII.  Employers who impose citizenship requirements or give preference to U.S. citizens in hiring or employment opportunities may have violated IRCA, unless these are legal or contractual requirements for particular jobs.  Employers also may have violated Title VII if a requirement or preference has the purpose or effect of discriminating against individuals of a particular national origin.

 

For more information about employment rights and responsibilities under the Immigration Reform and Control Act, you may call the Office of Special Counsel for Immigration-Related Unfair Employment Practices at 1-800-255-7688.

 

 

Facts About Sexual Harassment

 

Sexual Harassment is a form of sex discrimination that violated Local Ordinance 199-94 and Title VII of the Civil Rights Act of 1964.

 

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.

 

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

 

• The victim as well as the harasser may be a woman or a man.  The victim does not have to be of the opposite sex.

 

 

• The harasser can be victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.

 

 

• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

 

 

• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

 

 

• The harasser's conduct must be unwelcome.

 

 

It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop.  The victim should use any employer complaint mechanism or grievance system available.

 

When investigating allegations of sexual harassment, the HRC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred.  A determination on the allegations is made from the facts on a case-by-case basis.

 

Prevention is the best tool to eliminate sexual harassment in the workplace.  Employers are encouraged to take steps necessary to prevent sexual harassment from occurring.  They should clearly communicate to employees that sexual harassment will not be tolerated.  They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

 

 

Facts About The Americans with Disabilities Act

 

Local Ordinance 199-94 and Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment.  An individual with a disability is a person who:

 

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.

 

A qualified individual with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question.  Reasonable accommodation may include, but is not limited to:

 

• Making existing facilities used by employees readily accessible to and usable by persons with disabilities;
• Job restructuring, modifying work schedules, reassignment to a vacant position;
• Acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters.

 

An employer is required to make an accommodation to the know disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business.  Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources and the nature and structure of its operation.

 

An employer is not required to lower quality or production standards to make an accommodation, nor is an employer obligated to provide personnel use items such as glasses or hearing aids.

 

Medical Examinations and Inquiries

 

Employers may not ask job applicants about the existence, nature or severity of a disability.  Applicants may be asked about their ability to perform specific job functions.  A job offer may be conditioned on the results of a medical examination or inquiry, but only if the examination or inquiry is required for all entering employees in the job.  Medical examinations or inquiries of employees must be job related and consistent with the employer's business needs.

 

Drug and Alcohol Abuse

 

Employees and applicants currently engaging in the illegal use of drugs are not covered by the law, when an employer acts on the basis of such use.  Tests for illegal drugs are not subject to the Local Ordinance's and ADA's restrictions on medical examinations.  Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.

 

 

Facts About Pregnancy Discrimination

 

Discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Local Ordinance 199-94 and Title VII of the Civil Rights Act of 1964.  Women affected by pregnancy or related conditions must be treated in the same manner as other applicants or employees with similar abilities or liabilities.

 

Hiring

 

An employer cannot refuse to hire a woman because of her pregnancy related condition as long as she is able to perform the major functions of the job.  An employer cannot refuse to hire her because of its prejudices against pregnant workers or the prejudices of co-workers, clients or customers.

 

Pregnancy and Maternity Leave

 

An employer may not single out pregnancy related conditions for special procedures to determine an employee's ability to work.  However, an employer may use any procedure used to screen other employees' ability work.  For example, if an employer requires its employees to submit a doctor's statement concerning their inability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy related conditions to submit such statements.

 

If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee; for example, by providing modified tasks, alternative assignments, disability leave or leave without pay.

 

Pregnant employees must be permitted to work as long as they are able to perform their jobs.  If an employee has been absent from work as a result of a pregnancy related condition and recovers, her employer may not require her to remain on leave until the baby's birth.  An employer may not have a rule which prohibits an employee from returning to work for a predetermined length of time after childbirth.

 

Employers must hold open a job for a pregnancy related absence the same length of time jobs are held open for employees on sick or disability leave.

 

Child Care

 

Local Ordinance 199-94 and Title VII requires that leave for child care purposes be granted on the same basis as leave granted to employees for other non-medical reasons, such as non job-related travel or education.

 

Health Insurance

 

Any health insurance provided by an employer must cover expenses for pregnancy related conditions on the same basis as costs for other medical conditions.  Health insurance for expenses arising from abortion is not required, except where the life of the mother is endangered.

 

Pregnancy related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable and customary charge basis.  The amounts payable by the insurance provider can be limited only to the same extent as costs for other conditions.  No additional, increased or larger deductible can be imposed.

 

If a health insurance plan excludes benefit payments for pre-existing conditions when the insured's coverage becomes effective, benefits can be denied for medical costs arising from an existing pregnancy.  Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.

 

Fringe Benefits

 

Pregnancy related benefits cannot be limited to married employees.  In an all-female workforce or job classification, benefits must be provided for pregnancy related conditions if benefits are provided for other medical conditions.  if an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy related conditions.  Employees with pregnancy related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases and temporary disability benefits.

 

Facts About Religious Discrimination

 

Local Ordinance 199-94 and Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment.  The Ordinance and Act also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer (see also 29 CFR 1605).  Flexible scheduling, voluntary substitutions or swaps, job assignments and lateral transfers are examples of accommodating an employee's religious beliefs.

 

Employers cannot schedule examinations or other selection activities in conflict with a current or prospective employee's religious needs, inquire about an applicant's future availability at certain times, maintain a restrictive dress code, or refuse to allow observance of a Sabbath or religious holiday, unless the employer can prove that not doing so would cause an undue hardship.

 

An employer can claim undue hardship when accommodating an employee's religious practices if allowing such practices requires more than ordinary administrative costs. Undue hardship also may be shown if changing a bona fide seniority system to accommodate one employee's religious practices denies another employee the job or shift preferences guaranteed by the seniority system.

 

An employee whose religious practices prohibit payment of union dues to a labor organization cannot be required to pay the dues, but may pay an equal sum to a charitable organization.

 

Mandatory "new age" training programs, designed to improve employee motivation, cooperation or productivity through meditation, yoga, biofeedback or other practices, may conflict with the non-discriminatory provisions of Local Ordinance 199-94 and Title VII.  Employers must accommodate any employee who gives notice that these programs are inconsistent with the employee's religious beliefs, whether or not the employer believes there is a religious basis for the employee's objection.