Which Law Extended Discrimination to Include Handicap and Familial Status?
Discrimination: How and Why Can It Exist Legal?
Advice, Age Discrimination, Family unit Responsibilities Discrimination, Pregnancy Discrimination
Scenario i
John works for a successful company as a sales executive. From his get-go twenty-four hour period on the task, he has exceeded expectations and has no workplace problems or issues. One solar day, John gets a new supervisor who immediately seems to dislike him. After a few months, the new supervisor tells John he's being fired. When John asks why, the supervisor says, "It'due south considering you're black, and I detest blacks."
Scenario 2
Boyd is 38 years old and has years of commercial driving experience from prior jobs as a long-booty truck driver. He wants to try something different and applies for a job as a passenger motorbus commuter at the Acme Double-decker Company. Although well qualified, Peak Motorbus Company rejects Boyd's chore application on the footing of his age. Acme Bus Company tells Boyd that it simply accepts chore applications from those aged 35 years and younger due to passenger safety considerations. Acme Bus Company'southward passenger prophylactic concerns are based on sound statistical data.
Scenario 3
In case you haven't already figured it out, scenario ane is illegal bigotry. Scenario two is legal discrimination and is based on the case Hodgson v. Greyhound Lines, Inc., 499 F.2d 850 (seventh Cir. 1974). Scenario 3 parallels the case International Union, United Motorcar, Aerospace & Agronomical Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.Southward. 187 (1991), where the U.S. Supreme Court held that a policy similar to the one in described in Scenario three was illegal.
Why is scenario ii legal but scenario three illegal? At first glance, it makes sense that scenario 1 is illegal while scenario 2 is legal. Merely if scenario two is legal, shouldn't scenario 3 be legal too?
This article will explain this credible contradiction and the factors that must exist considered when deciding whether discrimination is legal.
Types of Bigotry
What differentiates legal from illegal discrimination is what the law says (or doesn't say). Discrimination is illegal if the law specifically prohibits it. For instance, Congress may laissez passer a law that explicitly prohibits bigotry in the form of firing an individual on the footing of that person'south race, color, religion, sex, or national origin. Championship VII of the Civil Rights Deed of 1964 (Title 7) is an example of such a law that makes this grade of discrimination illegal.
Discrimination can be legal if the law specifically says it's legal. One blazon of discrimination that the law specifically allows is the bona fide occupational qualification, which will be discussed later in this article. Discrimination tin also be legal if the police force is silent on that item type of discrimination.
Illegal Bigotry
As mentioned above, discrimination is illegal because there is a law that makes information technology illegal. At that place are several sources for laws (statutes, rules, regulations, etc.) as well as several ways a law tin exist made in the United States (legislatures, courts, agencies, etc.), but for the sake of simplicity, we will only focus on federal laws that come from Congress for the majority of the article. When a law makes a type of discrimination illegal, information technology creates a protected course. A protected class is a group of individuals who share a feature that shields them from discrimination. The following is a list of some of the classes protected under federal law:
- Race: Ceremonious Rights Act of 1964
- National origin: Civil Rights Act of 1964
- Sex activity: Ceremonious Rights Act of 1964
- Color: Civil Rights Human action of 1964
- Organized religion: Civil Rights Act of 1964
- Inability: Americans With Disabilities Act of 1990
- Historic period: Age Bigotry in Employment Act
- Pregnancy: Title VII of the Civil Rights Act of 1964
- Familial status: Fair Housing Act
- Genetic information: Genetic information Nondiscrimination Act of 2008
Other protected classes may exist nether state or local law only not federal law. Weight and acme are two examples.
Under the Elliot-Larsen Civil Rights Deed of 1976, Michigan prohibits discrimination based on weight and height. Michigan is the simply state that includes pinnacle and weight as protected classes. Some cities or municipalities take laws that prohibit discrimination based on weight and meridian, including San Francisco, California; Urbana, Illinois; Washington, D.C.; and Madison, Wisconsin. Still, these laws only utilise to the item municipalities and non to the state.
Therefore, to sue for illegal discrimination based on height or weight, you would need to fall under the jurisdiction of a law that prohibited that specific discrimination. Fired in Texas for being likewise short? That's legal. Fired in Illinois based on your weight? That's just illegal in Urbana.
Lastly, discrimination can be illegal even if the employer has a legal and legitimate reason for 
For instance, Mark is fired as a pilot considering his employer says Marker is suffering from hearing loss. If information technology turns out that Marker were really fired for an impermissible reason (such as national origin) and his employer were actually OK with Mark's hearing, that firing would be illegal because the hearing loss was only a pretext for the real reason for his firing (national origin).
Legal Discrimination
Bona Fide Occupational Qualification
As touched on in the previous section, ane way for discrimination to be legal is for the bigotry to be based on a characteristic that is non protected. Rejected from a chore because it was in New York City and y'all were a Ruddy Sox fan? Or how about a hiring managing director who refuses to hire those with a particular type of cell telephone? These may be farfetched and outrageous, just if they occurred, they would be legal. However, if the discrimination is based on a protected characteristic, the discrimination becomes illegal—unless an exception applies.
One major exception to the prohibition on discriminating against individuals of a protected class is when the discrimination is based on a chore requirement that is "reasonably necessary to the normal operation of that detail business or enterprise." When this occurs, this job requirement is called a bona fide occupational qualification (BFOQ).
In its most bones terms, a BFOQ allows an employer to discriminate when it normally shouldn't be able to because the employer has a really good reason for the discrimination. The reality of the BFOQ defense force is much more complicated, equally evidenced by scenarios 2 and 3 that began this commodity. To go a improve understanding of the BFOQ defence force, let'southward start from the starting time—when the BFOQ defense can be used.
When to Use the BFOQ Defense
The BFOQ defense force does not exist under all laws that prohibit discrimination. The BFOQ defense is explicitly allowed nether Title 7, Section 703(e), and the Historic period Bigotry in Employment Act, Section 623(f)(ane). However, it is not provided for in the Americans with Disabilities Act of 1990 (ADA).
Additionally, the BFOQ defence force does non apply to all protected classes. The BFOQ defence force does not apply when a BFOQ is based on race. Section 703(e) of Championship Seven states:
[I]t shall not be an unlawful employment do…for an employer…to rent and utilize any individual…on the ground of his religion, sex, or national origin in those sure instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that item business or enterprise… (emphasis added)
Detect how race is not mentioned. This was not an accident, as Congress deliberately refused to allow race to be a BFOQ.
How to Apply the BFOQ Defense
To be able to utilise the BFOQ exception, an employer must, at the very to the lowest degree, testify two things:
- The BFOQ concerns a characteristic that goes to the essence of the business. In other words, the proper and necessary operation of the business depends on the discrimination based on that item trait; and
- The basis for discrimination must be supported by objective and verifiable reasons. Facts, studies, statistics, or other empirical data are required. A BFOQ defense cannot be based on assumptions or stereotypes.
Other factors that a court may consider when determining whether a BFOQ defense applies include the following:
- The employer would have to show that all or well-nigh all people who take a feature being discriminated confronting would exist unable to perform the specific job, or
- It would be impossible or impracticable for the employer to decide on an individual basis whether an exception to the BFOQ should exist made.
As these considerations prove, courts will simply narrowly apply the BFOQ defense. Permit's take another look at scenarios 1, ii, and three.
The BFOQ Defence in Scenario 1
There is no BFOQ defence in scenario 1. Not but is the BFOQ defense force inapplicable to discrimination based on race, just even if the BFOQ defence force could exist used, it wouldn't be successful considering the discrimination is clearly based on John'due south supervisor being racist rather than a concern necessity.
The BFOQ Defense force in Scenario two
In scenario 2, the prophylactic performance of passenger busses goes to the essence of Acme Bus Company'due south business organization. Basically, passenger safety is a skillful reason for justifying a form of discrimination when hiring bus drivers.
Merely now we look at the next cistron: is that discrimination based on facts or assumptions? Every bit long as Superlative Passenger vehicle Company tin can provide empirical and factual information, such as studies and expert testimony that show how driving operation and condom decline with age starting at 35, the BFOQ defense volition likely succeed.
In the existent-life case scenario 2 is based on, Hodgson v. Greyhound Lines, Inc., Greyhound was successful in asserting the BFOQ defense because it presented sufficient studies and information to bear witness that it had a rational, good faith, and objective reason for rejecting job applicants aged 35 and over. Greyhound was able to produce statistical evidence showing, among other things, the degeneration of a person's sensory perception, which begins in the tardily 30s for the average individual.
The BFOQ Defense in Scenario 3
Another reason scenario iii is illegal is that the car bombardment manufacturer cannot provide data to justify the discrimination. One reason empirical data cannot be provided is because meaning women or women who could become significant are just as qualified to work on the assembly line. There might be data that shows lead tin can harm unborn fetuses or cause other reproductive harm in women, but it'south up to Jane, non her employer, as to whether she decides to have children.
Consequently, the auto battery manufacturer's policy banning all women who are pregnant or could get pregnant is arbitrary and based on the assumption or stereotype that women will take children or that even if they don't want children, it's someone else's responsibility to make certain she tin still accept children if she changes her mind. A paternalistic concern for one's employees volition not justify discrimination.
Sometimes a BFOQ defense is unsuccessful not because the employer didn't have a good reason for the bigotry simply because the employer couldn't adequately justify the bigotry. Remember, the two key points in using the BFOQ defence are having a good reason for the discrimination (the discrimination goes to the "essence of the concern") and objectively proving the discrimination is justified.
The Get-go Subpoena and Affirmative Action
There are likewise other forms of legal discrimination. Schools may have an admissions policy that favors one race over another. This would be an example of affirmative action, or what some believe is "reverse discrimination." Unfortunately, affirmative action is a legal topic that deals with issues, laws, and policies that get beyond this commodity, in both subject matter and scope, such every bit a compelling government interest. Therefore, the topic of affirmative action will non exist addressed hither.
For more data as to the legal footing and background of affirmative action the U.S. Department of Labor's Affirmative Action page provide plenty of boosted background.
A compelling regime interest is a legal concept where the government is able to borrow on a constitutionally protected right or discriminate based on certain characteristics, such as race, when a crucial or of import authorities involvement is at stake. Liberty of spoken language restrictions based on national security considerations is an case of a compelling government interest infringing on a constitutional right.
Some other form of legal discrimination is where an organization may exclude certain people from becoming members. The legal basis for this bigotry is the freedom of association and expressive association protections provided by the Kickoff Subpoena of the U.S. Constitution. This allows a private organization to choose who can and cannot join. This freedom to discriminate is not accented, though.
For instance, the bigotry must be related to the organization's message or existence. If information technology'due south not, the discrimination may be illegal. This was the case in Roberts v. The states Jaycees, where the Jaycees prohibited women from joining their organisation as regular or full members.
The U.Southward. Supreme Courtroom concluded that such discrimination was not permissible for several reasons. One reason was the fact that the inclusion of only men for full or regular memberships did not impair the organisation'south message, and some other reason was that the Jaycees allowed women to join as acquaintance or partial members.
Summing It Up
Bigotry will exist illegal if the discrimination is explicitly prohibited by law. When this occurs, the law creates a protected class. Examples of protected classes nether federal police force include the following:
- Race
- National origin
- Sex activity
- Colour
- Religion
- Disability
- Historic period
- Pregnancy
- Familial condition
- Genetic information
Whether bigotry is legal also depends on which law applies. Federal police force does not make discrimination based on height or weight illegal, just Michigan and some cities and municipalities prohibit such discrimination.
Discrimination tin also exist legal if the law does non protect a characteristic discriminated against or if the discrimination against an otherwise protected class is necessary as a bona fide occupational qualification (BFOQ).
Even if discrimination is otherwise legal, if it is a pretext for illegal discrimination, it is prohibited.
A BFOQ qualification exists when:
- the discrimination deals with a characteristic that goes to the essence of the business, and
- the basis for discrimination is supported by objective and verifiable evidence.
The BFOQ defense cannot be used for discrimination based on race, and it can just exist used if the police force specifically allows for it.
Finally, discrimination tin also be legal if it is protected by the Showtime Amendment of the U.S. Constitution, such as liberty of association, or if it is necessary due to a compelling government involvement.
Source: https://www.spigglelaw.com/employment-blog/discrimination-how-and-why-can-it-be-legal/
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