Legal 08 – Civil Rights in Employment Law
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Legal 08 – Civil Rights in Employment Law

January 3, 2020


Within this chapter, we will explore how individual
civil rights impact the employment relationship. Once completed with this module, you should
be able to discuss the impacts of the Civil Rights Act of 1964, the Americans with Disabilities
Act of 1990, the Age Discrimination in Employment Act of 1967, the Pregnancy Discrimination
Act of 1978, the Equal Pay Act of 1963, the Genetic Information Nondiscrimination Act
of 2008, the Uniformed Services Employment and Reemployment Rights Act, and section 1983
of the Civil Rights Act of 1871 on fire and emergency services. The scenario to begin this chapter is a relatively
simple one. As the manager of an EMS agency, it has been
brought to your attention that one of your newer employees is possibly being hazed by
other employees. While some have stated that the ritual is
a harmless right of passage, you have received word that the employee is becoming distraught
over this disparaging treatment. As a manager within the organization, what
duty do you have to investigate and stop this hazing? Does it matter whether or not the employee
has filed a formal complaint about it? Do you think things change if you find out
that the hazing is related to the employee’s gender, sexual orientation, race, age, or
other trait? If nothing is done about this hazing, do you
believe the agency may have any liability? Would it be fair for the employer to argue
that it has no liability because the employee never filed a complaint? To aid in answering these questions, we will
be discussing civil rights in this chapter, which are rights that have their roots within
the United States Constitution. Section one of the 14th Amendment prohibits
states from making or enforcing laws that abridge the privileges or immunities of United
States citizens, nor shall any state deprive any person of life, liberty, or property without
due process, nor shall any state deny to any person within its jurisdiction the equal protection
of the laws. In a previous chapter, we talked about how
the Constitution protects the public from the bad actions of government, which is why
public (governmental) employees typically enjoy more rights and protections in employment
than their privately-employed counterparts. Where our civil rights are concerned, however,
the Constitution in section five of the 14th Amendment empowers Congress to enforce the
Amendment by legislation. It is the resulting legislation at the federal
level that creates civil rights for all people that are recognized and applied throughout
all aspects of our daily lives. These rights include the freedom of speech,
the right to vote, the right to bear arms, the right to be secure against unreasonable
governmental searches and seizures, and so on. As just mentioned, because Congress has the
authority to legislate to protect these rights, numerous laws have been passed at the federal
level that apply to both state (governmental) actors as well as private parties. Whether your fire department or ambulance
service is governmental or private, these protections apply universally. Again, there are numerous federal laws that
protect individuals from discrimination based upon several classifications, such as age,
race, national origin, gender, religion, and disabilities. In addition, many states have their own anti-discrimination
laws as well that can extend beyond the federal classifications to include sexual preference
or orientation, genetics, the use of legal substances outside of the work environment,
and even criminal history. This chapter will explore these various protections
in greater depth. The first key piece of federal legislation
related to broad civil rights protections is the Civil Rights Act of 1964. This Act was sweeping legislation designed
to end discrimination based upon race, religion, ethnic background, and gender. The Civil Rights Act contains 11 sections
(called titles), but not all of them pertain directly to emergency service providers. We will go over these titles briefly in turn
and will expand where there is a direct application to fire and emergency services. Title I of the Civil Rights Act of 1964 relates
to voting rights and bars unequal application of voter registration requirements. Believe it or not, this title contains somewhat
weak language and the Voting Rights Act, which was passed about a year after the Civil Rights
Act of 1964, went much further in addressing and eliminating the voting qualifications
that were historically used to exclude groups of people from voting. Title II prohibits discrimination in places
of public accommodation. Prior to the passage of the Civil Rights Act,
it was not uncommon in some areas for public facilities to segregate people based upon
their race, color, religion, or national origin. Title III prohibited states and local governments
from denying people access to public facilities. Title IV addressed the segregation that existed
in public education at the time of the Act’s passing. Title V modified the Civil Rights Act of 1957
to expand the powers of the Civil Rights Commission. Title VI is probably one of the first sections
of the Civil Rights Act that has a direct impact to fire departments and EMS agencies
by making it illegal for governmental agencies receiving federal funds to discriminate based
upon race, color, or national origin. If discriminatory conduct is found, the federal
agency providing funding can terminate that funding or the matter can be referred to the
Department of Justice for legal action. Fire departments and EMS agencies commonly
receive funding through numerous federal programs, such as the USFA’s Assistance for Firefighters
grants or Medicare, which is why this title can have a significant impact on an agency’s
operations if unlawful discrimination occurs. Title VII is a very significant provision
of the Civil Rights Act that has broad application to fire departments and EMS agencies, especially
as related to the employee-employer relationship. This title prohibits employment discrimination
based upon race, color, religion, sex, or national origin. (At the time this presentation was produced,
one Federal court even expanded the interpretation of “sex” to include sexual identity or orientation.) There are some exceptions to this section
of the Civil Rights Act. The first relates to the ability of religious
organizations to discriminate based upon religious affiliations or beliefs. Bona fide seniority systems, merit systems,
and systems that measure earnings by quantity or quality of production are also permissible. The law does specifically state that preferential
treatment of individuals based upon race, color, religion, gender, or national origin
is not required given a disproportionate ratio of diverse employees. Therefore, the law itself does not necessarily
create “affirmative action” quotas (which we will discuss in a little bit). Additionally, while Title VII does apply to
private employers as well as state and local governments, it does not apply if those employers
have less than 15 employees. As far as enforcement of Title VII in the
workplace is concerned, the Equal Employment Opportunity Commission is responsible for
ensuring compliance with Title VII provisions. As part of the EEOC’s interpretation of Title
VII language, it is illegal to discriminate in any aspect of the employment relationship
in areas of hiring, firing, compensation, transfers, promotions, layoffs, recruitment,
and disability leave, to name a few. Harassment, retaliation, and other types of
discriminatory actions are also prohibited. (For a list, please refer to the textbook.) Given the application of these interpretations,
it may even be a violation of Title VII to require employees to speak only English unless
the employer can show that the requirement is necessary for conducting business. Within the auspices of Title VII, discrimination
based upon religion is prohibited and an employer must make reasonable accommodations for an
employee’s religious beliefs unless such accommodations would impose an undue hardship on the employer. To clarify, the “undue hardship” requirement
that applies here is different than the one we will discuss in a little bit related to
disabilities accommodations. What constitutes an undue hardship in cases
of religious accommodations must be more than a minimum cost or burden. Such costs are not necessarily limited to
financial expenditures, however, as the impact on the ability of the employer to conduct
business may be considered. With this cost threshold in mind, the EEOC
does not require employers to provide religious accommodations that would violate a seniority
system or a collective bargaining agreement. To assist employers in determining exactly
what may be considered a reasonable accommodation, the EEOC does outline some examples of what
it would consider reasonable, such as shift swaps, voluntary substitutes, lateral transfers,
using a work facility for religious observance, accommodating prayer or other forms of religious
expression, and even exceptions to dress and grooming rules (so long as such an accommodation
would not undermine the employer’s efforts to maintain its public image). Under Title VII, employees also have the right
to a harassment-free environment. While harassment can assume many forms, the
Civil Rights Act deals specifically with harassment related to race, national origin, religion,
or sex. One of the major types of harassment prohibited
by the Civil Rights Act includes sexual harassment, which is considered to be a form of gender
discrimination by the EEOC. Sexual harassment can include different types
of prohibited conduct, such as unwelcome sexual advances, requests for sexual favors, and
other verbal or physical harassment of a sexual nature. This kind of harassment is called “quid pro
quo” sexual harassment in that something of value is offered in exchange for a sexual
favor or, inversely, something of value is withheld if the sexual favor is not provided. The other type of sexual harassment that can
occur is referred to as “hostile work environment” sexual harassment where the inappropriate
conduct creates an intimidating, hostile, or offensive working environment. Other nonsexual harassment can also occur
based upon race, color, age, nationality, and so on. If enduring the offensive conduct becomes
a condition of continued employment or the work environment becomes hostile, the conduct
would be considered unlawful. If an employer retaliates against an employee
for filing a discrimination charge or for testifying or participating in an investigation,
proceeding, or lawsuit under EEOC regulations, such retaliation is also illegal under the
Civil Rights Act. Harassment and hostile work environments are
serious as employers can incur significant liability, depending on the facts involved. If the harasser is a supervisor, the employer
is automatically liable for the harassment if it results in a negative employment action,
termination, failure to promote or hire, or a loss of wages. If the supervisor’s conduct does not result
in a negative employment action, but still creates an intimidating or abusive work environment
for the employee, a hostile work environment exists. In such a case, the employer can avoid liability
only if it can prove that it tried to prevent and promptly correct the harassing behavior
and the employee failed to take advantage of these preventive or corrective opportunities. In cases involving non-supervisors, the employer
is liable if it knew or should have known about the harassment and failed to take prompt
corrective action. Outside improper conduct of a sexual nature,
there are obviously other types of discrimination that can occur within the employment relationship. When such discrimination occurs, the courts
will classify the discrimination into two different categories. The first is disparate treatment, which is
intentional discrimination based upon race, color, religion, sex, or national origin. The second is disparate impact where the employer
did not intentionally discriminate, but the results of the employer’s actions turned out
to be discriminatory anyway based upon a statistical analysis of those impacted by the action. Obviously, intentional bad conduct is worse
than “accidental” bad conduct, so disparate treatment is considered a worse infraction
of the Civil Rights Act than disparate impact. While the Civil Rights Act of 1964 was passed
over half a century ago, the case law related to the Act continues to change as our society
evolves. An example of this is provided in the textbook
given the case of Ricci versus DeStefano and a subsequent lawsuit (Briscoe versus City
of New Haven) that followed closely on the heels of the Supreme Court’s Ricci decision. Legal requirements can shift rapidly based
upon case law and judicial interpretation, and even courts can have difficulty in interpreting
binding decisions. Avoiding liability can be difficult in such
cases where the law is still being defined by the courts. For those who participate on volunteer fire
departments, it is not an uncommon practice for volunteer fire departments to sometimes
utilize a vote of the membership to approve or deny an individual’s membership into the
department. If the person denied membership is part of
a protected class, an allegation of discrimination may indeed arise. One such case, Nelson versus Hinman, involved
a female candidate who was denied membership to a fire department based on what were considered
to be legitimate reasons. While the fire department prevailed in this
case, the court did recognize that the continuation of such voting practices could give rise to
future lawsuits that may not be resolved so easily in the fire department’s favor. Part of the regulations passed to further
define the Civil Rights Act recognize the ability of employers to take affirmative measures
to avoid actions or results that tend to deprive persons of equal employment opportunities
or to correct the effects of prior discriminatory practices. The law also encourages employers to take
affirmative action in circumstances where the available pool of diverse applicants for
employment or promotional opportunities is limited. This then gives rise to affirmative action
activities. For an affirmative action plan to be considered
reasonable by the EEOC, it must be tailored to solve the problems that were identified
by the employer’s self-analysis and the program must ensure that employment systems operate
fairly in the future while also avoiding unnecessary restrictions on opportunities for the workforce
as a whole. Goals and timetables should be reasonably
related to the effects of past discrimination, the need for prompt elimination of adverse
impacts or disparate treatment, the availability of basically qualified or qualifiable applicants,
and the number of employment opportunities expected to be available. Provisions in the plan or program related
to race, gender, or national origin should be maintained only as long as necessary to
achieve the plan’s objectives. As employers seek to correct disparate treatment
in employment opportunities through the use of affirmative action programs, we are starting
to see a growing tide of litigation related to reverse discrimination where a non-minority
is denied an opportunity based upon race, gender, or national origin. With that in mind, affirmative action plans
should not set quotas or hire only minorities. A candidate’s minority status may be just
one factor of consideration in the hiring process. Another legal requirement related to Title
VII protections is that all employers are required to post notices to all employees
advising them of their civil rights under the Civil Rights Act of 1964, along with the
right to be free from retaliation for seeking to enforce their rights under the law. To meet this requirement, many employers simply
purchase commercially-available notices for posting on their premises. If a person feels he or she has been unlawfully
discriminated against by an employer, the first step is to file a charge of discrimination
with the EEOC within 180 days of the alleged discriminatory action. If your state has a related law and enforcement
agency, the timeframe increases to 300 days. The EEOC will investigate the complaint and
has two options. It can either pursue its own action against
the employer or it can issue a notice of right to sue letter to the complainant, which then
allows the aggrieved party to file his or her own lawsuit against the employer. If an employer is found liable of discriminatory
conduct in violation of the Equal Rights Act, numerous remedies may be available. If the discrimination was determined to be
intentional, the law allows for the award of compensatory and punitive damages. Punitive damages may also be awarded if the
employer’s conduct was reckless or malicious. Discrimination based upon gender is treated
a little different in that the law allows for liquidated damages equal to lost wages
and the financial value of lost benefits. Double damages may be awarded if the gender
discrimination was a result of malicious or reckless conduct. Sometimes, the parties to a discrimination
lawsuit will enter into a court-ordered consent decree to settle the lawsuit. A consent decree is an agreement between the
parties that becomes a lawful order of the court that is binding upon all the parties
to the litigation. In many cases, consent decrees result in the
creation of affirmative action plans for the employer to follow in future employment activities. While we have been discussing Title VII of
the federal Civil Rights Act, many states also have their own civil rights laws, which
may expand the list of protected classes to include things such as sexual orientation,
criminal history, or other categories. If a discrimination complaint is based upon
a state law, the penalties for violating that law are defined by the provisions within that
respective state law. Given the complexity of equal rights laws
in conjunction with potential penalties for failing to follow the laws, employers are
encouraged to work with a labor or employment attorney in their area to proactively avoid
potential problems. Title VIII of the Civil Rights Act requires
the compilation of voter registration and other voter data in geographic areas as specified
by the Commission on Civil Rights. Title IX of the Civil Rights Act of 1964 makes
it easier to move civil rights cases out of state courts and into federal courts. Just be aware that this is a very different
Title IX than that in the Education Amendments Act of 1972, which prohibits discrimination
based upon sex in federally-funded education programs and activities. Title X created the Community Relations Service
to facilitate the resolution of community disputes involving discrimination claims. Title XI contains some miscellaneous provisions
related to the Civil Rights Act. Again, the Civil Rights Act of 1964 is significant
legislation that includes many parts. While not all of the titles within the law
apply to emergency service employers, those that do are of paramount importance as their
impact can be significant within the employment relationship. The next major federal law we need to discuss
related to an employee’s civil rights is the Americans with Disabilities Act of 1990. Simply referred to as the ADA, this law prohibits
discrimination against disabled individuals while also ensuring them access to the same
opportunities available to nondisabled persons. Interestingly enough, court decisions over
time began to limit the scope of the ADA beyond what Congress considered acceptable, which
led to the ADA Amendments Act of 2008 to further expand the definition of those individuals
who qualify for protection under the law. To qualify as a person protected by the ADA,
the individual must have a disability as defined within the law. A disability is defined as a physical or mental
impairment that substantially limits one or more major life activities of the individual,
a record of such an impairment, or being regarded as having such an impairment. The list of possible physical or mental impairments
a person can have includes a significant laundry list of conditions, such as contagious diseases,
cancer, mental illness, tuberculosis, cosmetic disfigurement, or anatomic loss affecting
the neurologic, musculoskeletal, respiratory, cardiovascular, reproductive, digestive, genitourinary,
hemic and lymphatic, integumentary, or endocrine systems. A more complete list of possible physical
or mental impairments is available within the textbook. To delve deeper, the law clarifies that major
life activities include caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working. This list is also not all-inclusive, meaning
there can be other activities that would qualify as a major life activity under the ADA. The law also includes major bodily functions
within the definition of major life activities, which means an impairment in a major bodily
function can also be considered a disability. Needless to say, there are numerous conditions
and activities that can form a nexus for a disability protection under the terms of the
ADA. The overall structure of the ADA contains
four subchapters or titles. Title I covers employment, Title II addresses
state and local government activities, Title III pertains to public accommodations, and
Title IV deals specifically with telephone and television access for individuals with
hearing and speech disabilities. Given that this chapter relates specifically
to civil rights in employment law, Title I of the ADA related to employment is obviously
the focus of this particular discussion. To begin, the ADA applies to any person or
entity employing 15 or more people for each working day in each of 20 or more calendar
weeks. For employers meeting that threshold definition,
it is illegal to discriminate against a disabled individual on the basis of that disability
in regard to job application procedures, hiring, advancement, or discharge; compensation; job
training; and, other terms, conditions, and privileges of employment. These legal requirements apply directly to
the employment relationship in several ways. The first begins even before a person is offered
employment. During your fire department or EMS agency’s
pre-employment process, it is illegal to conduct a medical examination or ask a job applicant
whether he or she has a disability, or what the nature or severity of the individual’s
disability may be. As we recognize the importance of firefighters
and EMS providers being able to crawl, swing axes, carry hose, lift patients, and so on,
employers are allowed to inquire about or evaluate the prospective employee’s ability
to perform job-related functions, however. In allowing this practice, the law does indeed
recognize there may be cases where a person with a disability is unable to perform a job
because of the very nature of that job. In order for an employer to apply such a standard
that excludes disabled people from employment, the employer must show a business necessity
that mandates the performance of specific essential job functions. It is the ability to perform these essential
job functions, either with or without a reasonable accommodation, that must serve as the basis
for excluding a person from employment due to a disability. The tricky part about essential job functions
is that employers are allowed to define their own list. For firefighters and EMS providers, it is
easy to recognize the need to lift people, hear patients and people in loud and distracting
environments, have enough manual dexterity to obtain vitals and perform medical procedures,
and so on. The extent to which a prospective employee
has to perform these essential job functions, however, can become the focus of a legal challenge. If every fire department in the area requires
candidates to lift 50 pounds, yet your department considers 100 pounds to be the standard, that
could be problematic. As a result, agencies are encouraged to rely
upon recognized standards to define their essential job functions. Ultimately, proving an essential job function
is indeed essential will be a burden borne by the employer in the event of an EEOC investigation. So long as the essential job functions defined
by the agency are indeed reasonable, any employee or candidate who cannot perform those essential
job functions, either with or without reasonable accommodations, will soon find him or herself
out of a job or excluded from the hiring process. Now, if you have not already noticed, we mentioned
the term “reasonable accommodations” several times over the past few slides. This is important as what is reasonable can
be open to some debate. Luckily, there have been court decisions that
can provide some guidance for employers. Changing existing facilities to make them
readily accessible to disabled individuals, job restructuring, modified work schedules,
use of assistive devices, and other interventions are routinely considered to be reasonable
accommodations. The threshold for when an accommodation becomes
unreasonable is when an employer can show the necessary accommodation creates an undue
hardship for the employer. Please be aware that this is not a low or
trivial threshold, however. The employer must be able to show significant
difficulty or expense in providing an accommodation to meet the undue hardship threshold. The threshold is also relative in that an
employer with more resources will have to show a higher expense than a smaller employer
before such an accommodation becomes an undue hardship. The textbook includes a few examples that
help define this concept further. Again, an undue hardship is one that requires
significant difficulty or expense to provide. The key word is significant, which can be
a challenging threshold for many employers. Another wrinkle of the ADA for emergency service
providers involves the use of temporary disability and light duty. It is not unusual for many employers, including
fire departments and EMS agencies, to utilize light duty positions to help employees who
are injured on the job return to work faster. Such light duty assignments are typically
temporary until the worker is recovered from his or her injuries. Under the ADA, if such light duty is available
for injured workers, then such light duty must also be available for employees suffering
from a temporary disability. On the other hand, if no light duty exists
at a certain workplace, there is no requirement under the ADA that a light duty position be
created. The key here is whether or not the light duty
is available for other purposes. If it is, then it must be available to those
suffering from temporary disabilities. If no light duty exists, there is no requirement
that the employer create it for ADA purposes. If you were being diligent, you may have noticed
that the ADA includes drug addiction and alcoholism as a potential impairment that would give
rise to a recognized disability. So does that mean a fire department or EMS
agency has to tolerate and employ alcoholics and drug users? To begin, the ADA expressly states that someone
currently engaging in the illegal use of drugs is not considered disabled under the ADA based
on that use. If the individual is no longer using illegal
drugs, his or her dependence could be considered a disability. Along those lines, alcohol is a legal substance,
so could alcoholism be considered a disability? The answer is yes, alcoholism can be a recognized
disability under the ADA. The legalization of marijuana in some states
has also raised the question whether or not a person can be fired for using marijuana. So back to our original questions, does an
employer have to tolerate employees who use those substances? The answer depends on the context because,
even if substance is legal, the employer still retains the right to ensure its employees
are not impaired while working. Thus, an employer can require that its employees
not be under the influence of alcohol or drugs while at work. Even recovering addicts and alcoholics can
be held to the same employment standards and expectations as other employees, even if the
unsatisfactory behavior or performance is related to the employee’s alcoholism or dependence. The ADA also allows drug testing for the purposes
of determining whether an employee is using illegal drugs. As with many of these federal employment laws,
employers are required to post notice of ADA provisions for applicants and employees to
review. The provisions of Title II within the ADA
are relatively simple in that state and local governments of all sizes, regardless of whether
they receive federal funding, must provide disabled individuals with an equal opportunity
to benefit from all of the programs, services, and activities available through that governmental
entity. Public education, employment, transportation,
social services, open meetings, and recreation are all examples of such programs, services,
and activities that must be made available to everyone, including those who are disabled. The public entity also may not charge the
disabled individual for the cost associated with providing this equal opportunity and
access. With these provisions in mind, governmental
entities must ensure policies, practices, and procedures avoid discrimination based
upon disability (unless providing such accommodations would fundamentally alter the nature of the
service, program, or activity being provided). Similar to the Title I provision related to
the employment relationship, Title II does not require public entities to take actions
that would result in undue financial and administrative burdens. If there is a dispute as to whether or not
such a hardship or burden exists, however, the public entity has the responsibility to
prove its case. Title II also has requirements for facility,
building, architectural, and accessibility standards to be applied in building alterations. Public entities must ensure adequate means
of communication to those with hearing, vision, or speech disabilities. Accommodation of service animals is also required. On the other hand, Title II does not require
the governmental entity to provide personal devices or services of a personal nature. From a fire and EMS perspective, if you are
a governmental agency, you cannot discriminate based upon disability. An example would be lacking the capacity to
provide ambulance services for a bariatric patient. That obese patient is arguably disabled and
has the right to the same level of services and care as non-bariatric patients. How a service would accommodate such a need
or request is something to consider. Providing 911 access to the deaf or hard of
hearing is another example of a governmental service that must be accessible to everyone,
including the disabled. While Title II covers governmental entities,
that does not mean private entities (such as a private ambulance service) are off the
proverbial hook. Title III of the ADA requires reasonable accommodations
for disabled access to public accommodations and services provided by private entities. This includes many of the businesses and buildings
we visit on a regular basis, such as retail stores, restaurants, hotels, doctors’ offices,
daycare centers, and so on. Essentially, if a private entity has an area
of its building accessible to the public, it must ensure reasonable modifications have
been made (or the area was originally designed) to accommodate individuals with disabilities. If a private company provides transportation
services, such as a private ambulance service, those services must also be reasonably available
to disabled individuals. The only exception is if providing such modifications
would fundamentally alter the nature of the goods, services, facilities, privileges, advantages,
or accommodations. Disabled individuals are not required to avail
themselves of accommodations, aids, services, opportunities, or benefits available under
Title III, but those accommodations must be available if needed. As far as penalties are concerned for failing
to comply with the ADA, they vary given the particular Title that was violated. The process for seeking redress also differs
based upon the Title that governs the alleged violation. For Title I violations, which relate directly
to the employee-employer relationship, the person alleging the Title I violation must
file a complaint with the EEOC within 180 days of the date of discrimination or within
300 days if the charge is filed with a designated state or fair employment practice agency. A federal lawsuit for an alleged Title I violation
can only be filed after the complainant receives a “right to sue” letter from the EEOC. The financial implications of losing such
a complaint or lawsuit can be significant to an employer, depending on the facts of
the case. Title II complaints are not filed with the
EEOC as the person filing the complaint is not an employee of the entity that is alleged
to have failed in their duty to provide accommodations. Rather, a person filing a Title II complaint
under the ADA may file that complaint with the United States Department of Justice within
180 days of the date of the alleged discriminatory action. The Department of Justice may then seek to
pursue a civil lawsuit against the agency if it is unable to resolve the alleged violations
with the agency. Individuals may also pursue a federal lawsuit
themselves without any involvement from the Department of Justice. One quick correction or clarification to be
made given the information in the book is that the award of back pay is associated with
Title I violations, not Title II violations. Title II violations typically seek compensatory
or equitable relief. Title III violations are handled similarly
to Title II violations in that the Department of Justice may file a lawsuit when it believes
there is a pattern or practice of discrimination or where an act of discrimination raises an
issue of general public importance. If pursued by the Department of Justice and
the private entity is found to be in violation of the ADA, as much as $55,000 in civil penalties
may be awarded for an initial violation and up to $110,000 may be awarded for subsequent
violations. The individual who was harmed by the discriminatory
conduct may also choose to file a lawsuit against the private entity on his or her own
without involving the Department of Justice. While we have discussed the federal Americans
with Disabilities Act, many states have their own laws that cover disability accommodations. Fire departments and EMS agencies must be
familiar with not only federal ADA requirements, but any similar state laws within their respective
jurisdictions to ensure compliance with all applicable laws related to nondiscrimination
based upon disability. Anti-discrimination laws cover a wide gamut
of protected classifications. In addition to classes that include race,
gender, and religion, the Age Discrimination in Employment Act of 1967 includes age as
another classification that can serve as the basis for illegal discrimination. Under the Age Discrimination in Employment
Act, it is illegal for an employer to discriminate against any individual in any aspect of employment
just because the individual is 40 years of age or older. The ADEA applies to all state and local government
employers regardless of the number of people employed by the governmental entity or agency. For all other private employers, the ADEA
applies if the employer has 20 or more employees for each working day in each of 20 or more
calendar weeks. Under the ADEA, it is illegal for help wanted
notices or advertisements to include terms or phrases that limit or deter the employment
of older individuals. It is permissible, however, for language to
be included that encourages older individuals to apply. The ADEA does not prohibit employers from
asking an applicant for their age or date of birth on an employment application form,
but it is important to ensure such information is gathered for a permissible purpose. If an ADEA lawsuit does arise and the complainant
provided such information on an application, that application and the information within
it will be closely scrutinized by the court to determine whether or not the claim is valid. Now, there are admittedly times when an employer
may potentially discriminate among job applicants based on age if an occupational qualification
is deemed “bona fide” to a specific job and is “reasonably necessary to the normal operation
of the particular business.” As provided in the textbook, the application
of a federal law that prohibits air cargo pilots over a certain age would be considered
a bona fide occupational qualification. It is important to recognize, however, that
the EEOC and the courts narrowly construe what qualifies as a bona fide occupational
qualification, so any employer who attempts to restrict a position based upon age may
find itself under significant scrutiny if a dispute does arise. Any employer asserting a bona fide occupational
qualification must prove that the age limit is reasonably necessary to the essence of
the business. The employer must also prove that either all
or a substantial number of individuals excluded from the job are, in fact, disqualified or
that some of the excluded individuals possess a disqualifying trait that cannot be ascertained
except by reference to age. If an employer has a bona fide seniority system
in place, that is permissible under the ADEA so long as that system is not a subterfuge
to evade the purposes of the law. Such a system must be based on the length
of service with the employer (not the employee’s age) as the primary criterion. Additionally, the essential terms and conditions
of the seniority system must be applied uniformly to all those affected by the system, regardless
of age, otherwise that system will not be considered a bona fide seniority system under
the ADEA. Given the discussion thus far, it may seem
somewhat odd, but age-based reductions in employee benefit plans are permitted if justified
by significant cost considerations as codified in the Older Workers Benefit Protection Act
of 1990. Thus, benefit levels for older workers may
be reduced to the extent necessary to achieve approximate equivalency in costs for older
and younger workers. If an employer has such a benefit plan in
place, the employer will ultimately shoulder the burden of proving that the plan meets
the requirements of this exemption provision in the case of a dispute. If every element of the exemption is not clearly
and unmistakably met, the reduced benefits will be considered a violation of the ADEA. There is also an exemption in the law for
bona fide executives or high policy-making employees who have reached 65 years of age. In these cases, compulsory retirement can
occur if the employee is entitled to an immediate, non-forfeitable annual retirement benefit
from a pension, profit-sharing, savings, or deferred compensation plan (or any combination
of those) that equals at least $44,000. In 1996, the Age Discrimination in Employment
Amendments added a provision to the ADEA that allows government agencies to refuse to hire
or to discharge any firefighter because of age. To comply with this provision, the employer
must ensure the candidate or firefighter has reached the age of hiring exclusion or retirement
in effect under applicable state or local law that existed on March 3, 1983. If the state or local law was enacted after
September 30, 1996, then the age for discharge must be the higher of either the age of retirement
in effect on the date of such discharge under the law or age 55. The action must also comply with a bona fide
hiring or retirement plan that was not created to sidestep the ADEA. If an employer takes actions based on reasonable
factors other than age, then the employer should be safe as far as the ADEA is concerned. These other factors are evaluated on a case-by-case
basis given the particular facts and circumstances that apply to the situation. For that reason, it is important for the employer
to ensure such actions are indeed prompted by reasonable factors other than age. If an employee feels he or she was discriminated
against by an employer based upon age, the process for filing a complaint with the EEOC
is somewhat similar to other discrimination complaints. Timeframes for filing a complaint with the
EEOC are either 180 days or 300 days, if a state or local law prohibits the same type
of discriminatory conduct, from the date of the alleged violation. It is not possible to sue an employer directly
without first receiving a “notice of right to sue” letter from the EEOC. If an ADEA violation did indeed occur, the
employee may receive damages equal to the amount of back pay that would have been earned. Compensatory or punitive damages are not available. If the discrimination was malicious or reckless,
however, double damages could be awarded. As far as age in employment is concerned,
there are numerous professions in which mandatory retirement ages have been established. Depending on the area or state, firefighting
may be such a profession. As long as the retirement age requirement
was not designed to evade the purposes of the ADEA, it is permissible under the ADEA. In such a profession, it can be difficult
to maintain a valid ADEA claim as the firefighter must show subterfuge on the part of the employer
who is using the mandatory retirement age as a way to discriminate in other aspects
of the employment relationship. While we have already talked about the illegality
of gender-based discrimination, Congress found it necessary to pass the Pregnancy Discrimination
Act in 1978 to prohibit gender discrimination on the basis of pregnancy. Similar to the other laws we have discussed
thus far, it is illegal to discriminate based upon an employee’s status as being pregnant
in hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any
other term or condition of employment. Essentially, Congress felt that a woman should
not have to choose between having a baby and having a job. Within the firefighting and EMS professions,
this law can have a significant impact as a fire department or EMS agency cannot refuse
to hire, nor can it prohibit a pregnant woman from working, so long as she is able to perform
the major functions of her job. If a fire department or EMS agency forces
a pregnant woman to take leave, light duty, unpaid leave, or an alternative assignment,
even if the employer believes it has the best interests of the woman in mind, a violation
of the Pregnancy Discrimination Act would have occurred. Unless a pregnant woman can no longer perform
the essential functions of her job, it is not the employer’s duty to make a decision
as to when the pregnant woman can no longer work. That decision is up to the pregnant woman
herself. Essentially, limitations upon a woman to perform
her job duties based upon pregnancy are considered to be a temporary disability and the employer
must treat the pregnant woman as it would any other temporarily disabled employee. Light duty, alternative assignments, disability
leave, or unpaid leave may be provided if such options are provided to other temporarily
disabled employees. If a fire department has light duty for firefighters
who are injured on duty, then that same light duty must be available to the pregnant woman
as well. If there is a violation of the Pregnancy Discrimination
Act, the provisions in the Civil Rights Act of 1964 would govern the process by which
a complaint is filed and potential damages are awarded. If it was not clear before, the motive behind
an employer’s decision to treat the pregnant woman differently than anyone else is irrelevant
in determining whether discriminatory conduct in violation of the Pregnancy Discrimination
Act occurred. It is easy to see how this can happen in the
fire service where an officer or Chief does not want to see the woman injured or have
the unborn child threatened by having the pregnant woman performing rigorous firefighting
duties. That decision is not one for them to make,
however. For the purposes of clarification, a pregnant
female is not entitled to more favorable treatment than other similarly situated employees. As an example, if the employer does not have
light duty for anyone, it does not need to create a light duty assignment for the pregnant
woman. Another gender-related law is the Equal Pay
Act of 1963. This law prohibits discrimination on the basis
of gender in the payment of wages or benefits to men or women who perform work of similar
skill, effort, and responsibility for the same employer under similar working conditions. It is also not legal to skirt the Equal Pay
Act’s requirements by manipulating bonuses and things like that as all forms of pay are
covered, including salary, overtime, bonuses, stock options, profit sharing, life insurance,
vacation pay, holiday pay, car allowances, and so on. If a wage disparity does exist between men
and women, employers may not reduce the higher paying wage to create equity. Rather, they must increase the lower wage
to be commensurate with the higher wage. The Equal Pay Act also applies broadly across
all employers. Unlike some other provisions that we have
covered, there is not a threshold established as to a minimum number of people working for
a particular employer before the law applies. (There are exemptions defined under the law,
but none of them are very pertinent to our discussions for fire departments and EMS agencies.) If a violation of the Equal Pay Act is alleged,
the harmed individual need not file an EEOC complaint first. The employee may initiate a lawsuit anytime
within two years of the alleged unlawful compensation practice. Another civil rights in employment law that
you may or may not be surprised to hear exists is the Genetic Information Nondiscrimination
Act of 2008. Given the evolution of medical science and
technology, this law prohibits discrimination against applicants, employees, and former
employees on the basis of their genetic information. The thought is that genetic information is
not relevant to an individual’s current ability to work. Therefore, the use of genetic information
in employment decisions is prohibited for the most part. The textbook contains a list of what the law
considers to be genetic information, in addition to the narrow exceptions provided in the law
for employers who acquire genetic information from employees. It is not a violation of the law to use, acquire,
or disclose medical information that is not genetic information as defined by the law,
even if the disease, disorder, or pathological condition has or may have a genetic basis. This law also does not apply to employers
with less than 15 employees. If an employer does obtain genetic information
about an employee, it must be maintained as confidential. Additionally, harassment of or retaliation
against an employee based upon genetic information is also illegal. Enforcement and penalties for violating the
Genetic Information Nondiscrimination Act are similar to those for other violations
of Title VII of the Civil Rights Act of 1964. From a protective services standpoint, we
know that firefighters have higher rates of cancer and heart disease. The Genetic Information Nondiscrimination
Act would prohibit a fire department from determining whether or not a candidate or
employee has a genetic disposition (either directly or through heredity) for such ailments. Military reservists and National Guard members
often seek employment with protective service agencies, which makes it important for fire
departments and EMS agencies to be familiar with the provisions of the Uniformed Services
Employment and Reemployment Rights Act. This federal law protects service members’
reemployment rights when they return from a period of service in the uniformed services,
including those called up from the reserves or National Guard. The Act also prohibits discrimination based
upon military service or obligation. The Uniformed Services Employment and Reemployment
Rights Act is administered by the Department of Labor’s Veterans’ Employment and Training
Service. Under the terms of this law, an employer cannot
deny initial employment, reemployment, retention in employment, promotion, or any benefit of
employment from a person on the basis of a past, present, or future service obligation. If an employer has an employee that must leave
active employment due to a service obligation, that service member must be reemployed if
he or she meets five criteria. First, the person must have been absent from
a civilian job on account of service in the uniformed services. Second, the person must have given advanced
notice to the employer that he or she was leaving the job for service in the uniformed
services (unless such notice was precluded by military necessity or was otherwise impossible
or unreasonable). Third, the cumulative period of military service
while the employee was with the employer cannot have exceeded five years. Fourth, the person must not have been released
from service under dishonorable or other punitive conditions. Fifth, the person must have reported back
to the civilian job in a timely manner or have submitted a timely application for reemployment
(unless timely reporting back or application was impossible or unreasonable). When these criteria are met, the returning
service member is to be reemployed in the job he or she would have attained if not for
the absence due to military service with the same seniority, status, pay, and benefits
associated with that level of seniority. If employment qualifications have changed
or evolved since the employee’s leave, the employer must provide reasonable efforts to
train the returning service member to qualify him or her for reemployment. As just mentioned, the law establishes a five-year
cumulative total of military service for an employee with a single employer (with some
exceptions that include emergency call-ups, reserve drills, and annually scheduled active
duty training). If the employee’s leave is related to an initial
period of active duty, that time period may exceed five years. Once the uniformed service is completed, the
timeframes in which the service member must return to civilian work to secure the benefits
of this law varies based upon the length of the military service. The textbook defines these periods and the
requirements for your reference. These timeframes can be extended for up to
two years if a service member is hospitalized or convalescing due to a service-related injury
or illness. This law also impacts the service member’s
health and pension plan benefits through the employer. If the employee’s military service lasts less
than 31 days, healthcare coverage must be maintained for the employee as if he or she
remained employed during that period of time. If the military duty exceeds 30 days, the
service member may elect to continue his or her employer-sponsored health care for up
to 24 months (although the service member may be required to pay up to 102 percent of
the full premium for that coverage). As far as pension plan participation is concerned,
the law treats military service as continuous service time with the employer. Any employer who violates the Uniformed Services
Employment and Reemployment Act may be ordered by a court, through a lawsuit filed in federal
court by the United States Department of Justice, to compensate the service member for lost
wages or benefits. If the violation was willful, liquidated damages
(typically equal to the amount of lost wages) may be awarded as well. The last civil rights law that we will discuss
is actually a very old one. The Civil Rights Act of 1871 was originally
written to combat acts of rampant racism that were still occurring after the Civil War. Section 1983 of that law allows federal courts
to hear civil cases based on alleged deprivation of civil rights. Essentially, this law provides for a private
cause of action (meaning a private lawsuit) against individual state and local government
employees if that person deprives the victim of a civil right while operating in a private
capacity under the color of state law. A common example of this law in action is
when a person sues a police officer for depriving him or her of constitutionally guaranteed
civil rights. In such a lawsuit, the plaintiff alleges that
the officer was acting under state authority, but was not functioning within his or her
official capacity. If the officer was using excessive force,
for instance, the argument is that the use of excessive force is not permitted by the
police department and, as a result, the officer was operating outside of the scope of employment. An important aspect of Section 1983 lawsuits
to note is that neither the state itself nor the federal government can be sued. This law creates what has been called a “constitutional
tort” that allows individuals to sue government employees directly, along with individual
municipalities and subdivisions of government. While this law can apply to the employment
relationship, it may also rear its head in matters that involve the public. With that being said, most Section 1983 lawsuits
are filed against police officers, not firefighters and EMS providers, although there are circumstances
in which such a lawsuit could potentially be sustained against a firefighter or EMS
provider. While this law sounds like it creates a significant
liability for governmental employees (this law does not apply to privately-employed individuals),
there are some important limitations associated with it. First, the plaintiff must be able to show
actual damages to recover anything beyond a nominal damage award of one dollar. Second, if the defendant can show that he
or she was making a good-faith effort to perform his or her discretionary duties as a governmental
employee, qualified immunity may apply, which will protect the government actor from liability
under a Section 1983 lawsuit. Ultimately, courts routinely hold public officials
and government employees accountable when they exercise power irresponsibly, yet those
same courts also acknowledge the need to shield those same public officials and government
employees from harassment, distraction, and liability when performing their duties in
a reasonable manner. If a Section 1983 lawsuit is upheld, the law
allows for the award of attorney fees in addition to the actual damages sustained by the plaintiff. If the abuse of power was considered egregious
by the court, punitive damages may be awarded as well. The best defense for any governmental employee
with respect to this law is to perform your duties reasonably under the circumstances. Doing so will minimize any potential of losing
a Section 1983 claim. The last important note in this chapter is
that there are many laws passed by the United States Congress that do not actually apply
directly to the federal government. Most of the provisions we just discussed,
however, apply to the federal government just as they do to other entities. Keep in mind as well that your respective
state may also have similar laws that provide additional protections beyond those provided
by these federal laws. That brings us to the end of this chapter
on civil rights related to employment law. Remember that civil rights are essentially
legally-recognized rights or privileges that are enforceable through the courts. These rights include the freedom of speech,
the right to vote, the right to bear arms, the right to be secure against unreasonable
government searches and seizures, and so on. To protect these civil rights, numerous federal
laws were passed to protect individuals given association with numerous classification categories
that include age, race, national origin, gender, religion, and disabilities. Many states provide additional protections
beyond those included in federal law. Some additionally-protected categories can
include sexual orientation, genetics, criminal background, and others. As far as these civil rights laws are concerned,
the Civil Rights Act of 1964 is really recognized as one of the earliest examples of federal
legislation designed to end discrimination based upon race, religion, ethnic background,
and gender. The Americans with Disabilities Act of 1990
prohibits discrimination against disabled individuals while also ensuring them access
to the same opportunities enjoyed by nondisabled persons. The Age Discrimination in Employment Act of
1967 makes it illegal for an employer to discriminate against an individual in any aspect of employment
because that individual is 40 years of age or older. The Pregnancy Discrimination Act of 1978 amended
Title VII of the Civil Rights Act of 1964 to prohibit gender discrimination on the basis
of pregnancy. The Equal Pay Act of 1963 prohibits discrimination
on the basis of gender in the payment of wages and benefits where work of similar skill,
effort, and responsibility are being performed for the same employer under similar working
conditions. Title II of the Genetic Information Nondiscrimination
Act of 2008 prohibits discrimination against job applicants, employees, and even former
employees on the basis of their genetic information. The Uniformed Services Employment and Reemployment
Rights Act protects service members’ reemployment rights when they return from a period of service
in the uniformed services. Section 1983 of the Civil Rights Act of 1871
allows federal courts to hear civil cases against subdivisions of state government,
public officials, and governmental employees based upon an alleged deprivation of civil
rights. The allegation is that the government actor
was operating in a private capacity under the color of state law at the time he or she
deprived the plaintiff of Constitutional rights. There was obviously a lot of information contained
within this chapter. Looking ahead, the next chapter in the textbook
explores employee safety, health, and benefits.

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