AM I BEING DISCRIMINATED IN MY JOB? CAN MY EMPLOYER FIRE ME FOR NO REASON? (Part III)
This is the last part of my articles regarding employment law and discrimination in the workplace. As you already know, I have been focusing on discrimination in the workplace based on race, color, religion, sex, national origin, citizenship, age, and disability. Because there are many other aspects of workplace discrimination or harassment protected by federal and/or state which we might not have addressed in the previous articles, you should consult with an attorney to discuss your case.
As you also know, you may have a claim against a potential employer if that employer discriminated against you when making a hiring decision. Finally, I have been and will be referring to federal law only. However, New York State law parallels federal law and often goes beyond the protections of the federal law.
In Part I, we talked about: Employment at Will; Title VII of the Civil Rights Act of 1964; The Equal Pay Act of 1963; and The Age Discrimination in Employment Act of 1967.
In Part II, I addressed the following statutes:
Immigration Reform and Control Act of 1986: It prohibits discrimination based on national origin or citizenship.
The Civil Rights Restoration Act of 1987: This act expanded the coverage of previously enacted federal statutes prohibiting discrimination in employment and other areas to any program or activity receiving federal funding.
Americans with Disabilities Act of 1990: The ADA prohibits employers from discriminating against people with physical and/or mental disabilities.
The Rehabilitation Act of 1973: It also prohibits discrimination on the basis of physical and mental disabilities. However, it does not apply to all employers.
The Civil Rights Act of 1991: It expanded the rights of employees after several limitations imposed by the courts. We have not discussed about the following aspects of employment law and workplace discrimination:
The Civil Rights Act of 1866 also known as Section 1981
The Civil Rights Act of 1866 was drafted immediately after the Civil War. It was designed to allow freed slaves to work. In addition, it gave freed slaves the right to contract, right to purchase, right to hold and sell property. It has broader coverage than Title VII. However, Section 1981 prohibited only discrimination based on race or color (nothing more). For many years, it applied only to government actions. However, in 1976, the United States Supreme Court decided that Section 1981 applied to all employment contracts. Therefore, it prohibits race discrimination in all employment contracts. Section 1981 applies not only to the making and enforcing of contracts, but also to the performance, modification, termination, enjoyment of all benefits, privilege, terms and conditions of the contractual relationship. It allows more extensive monetary damages or remedies than Title VII. However, please note that Title VII covers almost the same area. Section 1981 is enforced through private judicial action without any administrative prerequisites (as opposed to Title VII enforcement).
Executive Order 11246
This Executive Order requires employers providing federal service, federal contractors, and employers performing federally financed projects, and others, to undertake affirmative action. It prohibits those employers from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. The Department of Labor’s regulations implement the Executive Order. It requires contracting employers to undertake or implement affirmative action plans to increase the participation of minorities and women in the workplace if a workforce analysis demonstrates they are under-represented in the workforce. If the employer does not comply with the Order, the contract may be terminated, and/or the contractor may be barred from all future government contracts. However, there is no private judicial remedy.
An employer cannot discharge or terminate an employee for refusing to violate the law. Otherwise, the employer would be allowed to use economic power to force illegal activity on its employees. In addition, an employer cannot punish an employee for exercising a right under any specific law designed to protect the worker (i.e., workers’ compensation law, occupational safety law, anti-discrimination statutes, etc.) Therefore, an employer is not allowed to retaliate against a worker for asserting a personal statutory right and/or participating in a protected activity.
There are many other statutes dealing with or touching upon certain aspects of employment law and/or discrimination in the workplace. I cannot stress enough the importance of consulting with an attorney about the facts of your case.
Please remember that Title VII (Part I) and the ADA (Part II) exclude bona fide private membership in clubs from the application of these anti-discrimination statutes.
Some of these federal laws (i.e., Title VII, ADA, ADEA, EPA, etc.) are enforced by the EEOC. You can contact the EEOC at 1-800-669-4000 or at www.eeoc.gov. Even though you do not need representation to make a complaint with the EEOC or to assert a defense against a complaint, it is recommended you consult with an attorney about your case.
You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about the employment law and discrimination in the workplace. Furthermore, the article is not intended to explain or identify all potential issues that may arise in an employment/discrimination case. Each case is fact-specific and therefore similar employment cases may have different outcomes.
I represent individuals in discrimination cases. If you have any questions or concerns about discrimination in the workplace, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at firstname.lastname@example.org. The Law Office of Jose Perez is located at 120 East Washington Street, Suite 925, Syracuse, New York 13202. Please look for my next article in the February edition.