How Employment Law Applies in the Workplace
By Mary T. O’Sullivan, MSOL
“The point isn’t to get people to accept that they have biases, but to get them to see [for themselves] that those biases have negative consequences for others.” – Theresa McHenry (GM HR Microsoft)
A Legitimate EEOC Claim
Were you fired because of your national origin? Did you fail to get a promotion or another position due to your age? If you’ve answered yes to either of these questions, your employer could be in violation of federal law and state laws. You could have a legitimate EEOC case against them. Employers often walk the fine line between what is legal and what is not, and sometimes they step on or just over that line. But you may not be aware of the validity of these violations because the employer has been acting in this way ever since you began working there, and most other employees just go about their business, ignoring what everyone knows is bad behavior. Heads down, noses to the grindstone, they just want to collect a paycheck, and not rock the boat. To make matters worse, HR fears management. Even if HR believes your story, they may be unempowered to act. Fret as they may, management has been ignoring HR and all their admonitions. Most employees dread speaking up and voicing their complaints, for retaliation against them may be the result.
Overt Discriminatory Practices
Reading the details of case law regarding such events, the shock of the situation sinks in. Turning back to June of 2011, a “Disparate Treatment Claim” was brought against a major employer. An Iranian employee was hired as a “Senior Multi Disciplined Engineer” in 2002. As a condition of employment, the employee was required to obtain a secret clearance. His interim clearance was rejected, but he did not lose his job, pending a final decision. While awaiting the final resutl, he transferred to another position, which did not require a secret clearance. He continued to apply to other internal jobs and to seek promotion opportunities. Each time, he was denied. Meanwhile, other personnel were placed in those positions, and the jobs did not go unfilled. Because the jobs were assigned to other employees, even though he met all the qualifications, the employee had a basis for an EEOC complaint. Eventually, after many months of waiting, the issuing agency denied the employee’s application for a secret clearance, forcing the company to decide what this employee’s future would be. He received good performance reviews as well as an achievement award. However, in spite of these accolades, the manager decided that the Iranian employee should be terminated. A dispute of the timing of his claim was questioned under California law. According to court documents, “the key question is generally understood to be ‘whether the employer’s conduct occurring outside the limitations period is sufficiently linked to unlawful conduct within the limitations period that the employer ought to be held liable for all of it.’” The District court determined that the employee’s discrimination claim was not filed within the specified time frame. Further details of this complaint show that fellow employees as well as his supervisor acted in a prejudicial manner against him. Negative comments about his national origin were made within earshot and after receiving good performance reviews soon thereafter, the performance review results declined.
When Courts Make Technical Decisions
Not surprisingly, when his case went to the District Court, the court sided with the company. However, this employee was not about to give up. He knew he was wronged, because upon further investigation on his part, it was found that other non-Iranian employees had their secret clearances revoked and were still working at the company in a non-classified capacity. They were not held to the same standard as the Iranian employee. Finally, on appeal, the lower court’s decision was reversed. The ruling of the Appeals court states the case clearly: “Here, the record shows that two non-Iranian engineers were able to retain their positions for over four years after having their clearances revoked. [the company’s] failure to apply its purported security clearance requirement in an evenhanded manner gives rise to an inference that its requirement is pretext for discrimination. Accordingly, the judgment of the district court is REVERSED and REMANDED.” Whether he returned to work or not is unknown. But it took almost seven years for his case to come to a conclusion, and no doubt drained him financially, physically and emotionally. Moreover, he knew he was right and fought his case in the courts until he won. He did his due diligence and investigations and uncovered the bare facts that brought him justice.
Stupid Discrimatory Job Postings
Another fascinating claim was recently brought to the federal courts , this time regarding age discrimination. The company’s job postings were clearly discriminatory, and whoever wrote them should have been fired for negligence. The wording left the company very exposed to discrimination claims. According to court documents, the company used “targeted phrases” such as “new college graduate,” “recent graduate,” or “new graduate” in many position titles and/or job descriptions. Additionally, “other positions have required that applicants with a college or graduate degree have less than 12 or 24 months of work experience or have graduated recently within the last year or two.” The plaintiff was a 67-year-old man, one of many other older workers who were adversely impacted by the company’s discriminatory actions. To make matters worse, the company’s head of Global Talent Acquisition stated that the company’s goal was to attract roughly 25% of the workforce as younger workers. In a 2019 Equal Employment Opportunity Commission (EEOC)investigation, the EEOC found the company’s advertising to be discriminatory, and in violation of The Age Discrimination in Employment Act(ADEA), the Massachusetts Fair Employment Practices Act, and the Virginia Human Rights Act, and sued on behalf of older workers who were denied or discouraged from posting on job opportunities going back to 2018. Incredibly, even after the EEOC ruled against them, the company continued to use discriminatory language in its job postings.
AARP is on your side!
A major change occurred in June 2024,when the American Association of Retired Persons (AARP) joined the class action lawsuit on behalf of all older workers facing discrimination by these prejudicial job postings. Because now, Americans are living and working longer, companies are not entitled to discourage older workers for applying for jobs they are qualified to perform. According to the law firm representing AARP and the others in the class action, Fortune 500 companies should know better than to exclude hardworking older Americans from jobs by targeting ‘recent college graduates’ in hiring posts”. He went on to say, “The EEOC has long held that this type of language discourages qualified older workers from applying for jobs and may violate the ADEA.”
It’s up to you
It’s up to the individual employee to recognize discriminatory behavior in the workplace. The Civil Rights Act of 1964 and its amendments, was enacted to protect the rights of all American workers. Employees shouldn’t be shy about raising issues with the employers or if necessary, filing complaints. If HR doesn’t investigate, consult legal counsel or the ethics department HR may be hamstrung, but ethics is not. In any case, document each incident, no matter how painful and report the discriminatory behavior.
“All workers, regardless of their age, should have an equal opportunity to compete for jobs at [company] and everywhere else.” – Mark Goldstein, job applicant
#AntiDiscrimination #WorkplaceEquality #EmploymentLaw #EqualOpportunity #WorkplaceBias #DiscriminationPrevention #DiversityAndInclusion #EmployeeRights #FairEmployment #SocialJustice
