The 1960s civil rights movement in America to end racial and other forms of discrimination also affected discrimination of employees by their employers. Following successful implementations of the laws against discrimination at workplaces, court decisions, workers unions, and laws restricted the employers and their unions to discriminate any worker based on his or her gender, age, race, color, national origin, religion, or disability. The Acts referred to workers meeting one or more of the above criteria as the protected class. Members of the protected class enjoy immense protections from federal laws like the Civil Rights Acts of 1964, Age Discrimination Act of 1967 and the American Disability Act of 1990. This topical research papers focuses on managing human resources with regard to when employer legally and morally justifies employment discrimination.
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Intentional and unintentional discrimination
Sometimes employers may intentionally discriminate against their employees. Cross and Miller referred to this as disparate-treatment discrimination. Intentional discrimination sometimes proves hard to establish. Courts use rights of the protected class to determine cases of employer discrimination as having legally sufficient grounds of illegal discrimination. The burden of proof will shift to the employer to present a legally acceptable defense (Cross & Miller 494).
On the other hand, unintentional discrimination results when employers’ procedures, practices and tests unintentionally affect a protected class. Scholars refer to this as disparate-impact discrimination. These acts appear not to be discriminatory, but they discriminate employees and job applicants of a protected class. The unintentional discrimination requires the complaint to prove statistically that there are elements of employer’s discrimination. The complainant must prove a case of disparate-impact discrimination through the use of the Equal Employment Opportunity Commission (EEOC) guidelines. The percentage of workforce at the firm must reflect the percentage of a protected group in relation to the pool of qualified individuals available in the local labor market. This can also be determined by comparing the selection rate of a protected class with the selection rate of nonmembers.
Moral and legal justification of employment discrimination
An employer may morally and legally discriminate against an employee or a potential employee on business necessity grounds. A claim of unintentional discrimination may arise. However, the employer may argue that the employee or a job applicant does not have the required competency level to perform the job. The employer must demonstrate that there is a general link between the job and competency level of the employee or the applicant. In this case, the employer is morally and legally justified to discriminate on business necessity grounds.
Employers may also discriminate against employees on the grounds of Bona Fide Occupational Qualification (BFOQ) even if the employee is in the protected class. BFOQ does not consider race, color and national origin. Courts mainly use BFOQ in cases where either gender or religion is fundamental to the job. For instance, age limit of pilots may be restricted legally. Similarly, jobs of a certain gender can be legitimately restricted to that gender only (Farazmand 110).
Some employers discriminate on seniority systems with regard to senior level positions. Members of the protected class may not be part of high level management in such organizations. An employer can only have a strong defense in cases where job distribution in the organization is fairly on the basis of a seniority system, i.e. senior members who have served the organization for a long time get promotion first or are the last to be laid off (Meiners & Frances 189).
Employers may legally and morally discriminate against employees in the case of after-acquired evidence on employee misconduct. An employer may discover evidence of employee’s misconduct after an employee files a lawsuit. This is a controversial ground of discriminating employees since it can only be used to minimize the amount of damage to which the employer is liable. In the United States, after-acquired evidence does not fully protect the employer on grounds of employee discrimination (Kenneth et al. 790).
Lawmakers formulated American with Disabilities Act (ADA) of 1990 to reduce discrimination against qualified workers with a disability from joining the work force. The Act requires the employer to accommodate reasonably the requirements of persons with a disability except in cases where accommodating such a person would result into hardship. Under reasonable accommodation, the Act does not require employers to accommodate potential employees who do not meet minimum requirements. If the person with a disability can do the work better, then an employer must make arrangements of accommodating the employee. Reasonable accommodation may include installing physical facilities needed by the person with the disability, modifying job assignments, flexible time, and improving on training materials and procedures (Krieger 179).
If an employer cannot reasonably accommodates the requirements of an employee living with a disability, then the employer must fully demonstrate that doing so will result into unnecessary hardship in terms of costs or difficulties. However, it is the court to decide if accommodating an employee with a disability would result into undue hardship. This is on the basis of a case-by-case rule. During a job application process, an employer may discriminate against an applicant with a disability based on medical grounds. If the medical conditions present in the applicant would make it impossible for the applicant to discharge his or her duties, then the employer can morally and legally discriminate against such an applicant.
The ADA Act considers drug and substance abuse as disability. However, this excludes the use of illegal drugs. Employers can morally and legally discriminate against an employee or an applicant, who is a drug abuser on the conditions that such a person poses remarkable risk of harm either to self or others. The employer must establish that such risks cannot be reduced by reasonable accommodation.
Concerns on health insurance plans and limits rest with the employer’s health policy. The policy cap should be applied equally to all insured employees of an organization without discrimination on the basis of disability. However, if an employer can justify under business necessity that an employee with a disability would be expensive to accommodate reasonably, then the employer can discriminate against that employee (Cihon & Castagnera 455).
Legislators designed regulations to provide equal opportunities in the workplace to reduce or stop issues of discriminatory acts with regard to hiring, retaining and promotion of employees. Affirmative programs take the issues of employer discrimination to make up for the past discrimination acts by giving the protected class a preferential treatment. The states implemented affirmative action programs in the public sector during 1960s after liberation of the disadvantaged groups. This program did not extend to private companies or organizations. Most of them have adopted affirmative action voluntarily. Not everyone in the labor like affirmative action programs, for instance, they have negatively affected the dominant white males in the US.
Legally, the law immunizes the states under the Eleventh Amendment from a lawsuit filed by private persons in federal courts. However, the states immunity to discriminate against workers is not absolute. This is mainly when the fundamental rights of an individual are at stake. Employment discrimination is among the emerging issues of human resources management. From the legal perspective, the issue is becoming complex to handle.
Cihon, Patrick & Castagnera, James. Employment and Labor Law. Texas: South- Western College Publisher, 2008. Print.
Cross, Frank B. & Miller, Roger LeRoy. The Legal Environment of Business: Text and Cases- Ethical, Regulatory, Global,and Corporate Issues, 8th Edition. Mason, OH: Cengage Publishers, 2010. Print
Farazmand, Ali. Modern Organizations: Theory and Practice. Westport, CT: Praeger Publishers, 2002. Print.
Kenneth, Jentz, Cross & Miller, Roger LeRoy. Business Law: Text and Cases – Legal, Ethical, Global, and Corporate Environment, 12th Edition. Texas: Cengage Publishers, 2010. Print.
Krieger, Linda Hamilton. Backlash Against The ADA: Reinterpreting Disability Rights (Corporealities: Discourses of Disability). Michigan: Michigan Press, 2003. Print.
Meiners, Ringleb & Frances, Edwards. The Legal Environment of Business , 10th Edition. Texas: South-Western College Publishers, 2008. Print.