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Disparate Impact Discrimination and the ADEA: Coming of Age 差别影响、歧视和ADEA:成年
Pub Date : 2005-04-01 DOI: 10.2190/G350-1H17-5227-4421
Debra D. Burke, L. Wilson
Although the theory of disparate impact discrimination was not initially cognizable under Title VII, the Supreme Court in Griggs v. Duke Power Company recognized its viability [1]. Prior to Griggs, individuals could only make a claim under Title VII if they could prove disparate treatment, which occurs when an employer intentionally treats members of a protected class less favorably because of their status in that class. Disparate impact discrimination occurs when an employer’s facially neutral employment practice adversely affects a person in a protected class, and that fact cannot be explained by business necessity. While disparate impact actions have been recognized under the Civil Rights Act since 1971, the circuit courts disagreed whether this theory of discrimination applied to the Age Discrimination in Employment Act. This article examines the 2005 Supreme Court decision that recognized the ADEA authorizes recovery in disparate impact cases. It is commonly known that Title VII of the Civil Rights Act of 1964 makes a number of employment actions unlawful [2]. At the time the act was passed, Congress considered and rejected amendments to the act that would have included older workers in the protected classes of Title VII [3]. However, the secretary of labor subsequently investigated the issue of age discrimination and concluded that it was common for employees to be discriminated against the workplace because of their age and inaccurate stereotypes about the abilities of older workers [4]. As a
尽管根据第七章,差别影响歧视理论最初并没有得到认可,但最高法院在格里格斯诉杜克电力公司案中承认了其可行性[1]。在格里格斯之前,个人只有在能够证明差别待遇的情况下才能根据第七章提出索赔,这种情况发生在雇主因为受保护阶层的地位而故意不善待受保护阶层的成员时。当雇主表面中立的雇佣行为对受保护阶层的人产生不利影响时,就会发生差别影响歧视,而这一事实无法用商业必要性来解释。尽管自1971年以来,《民权法案》就承认了歧视行为,但巡回法院不同意这种歧视理论是否适用于《就业年龄歧视法》。本文考察了2005年最高法院的判决,该判决承认ADEA授权在差别影响案件中进行赔偿。众所周知,1964年《民权法案》第七章规定许多雇佣行为是非法的[2]。在法案通过的时候,国会考虑并否决了将老年工人纳入第七章受保护阶层的法案修正案[3]。然而,劳工部长随后调查了年龄歧视问题,得出的结论是,由于员工的年龄以及对年长员工能力的不准确刻板印象,员工在工作场所受到歧视是很常见的[4]。作为一个
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引用次数: 1
The Legal, Ethical, and Strategic Implications of Gender Discrimination in Compensation: Can the Fair Pay Act Succeed Where the Equal Pay Act has Failed? 薪酬中性别歧视的法律、伦理和战略含义:在同工同酬法案失败的地方,公平薪酬法案能否成功?
Pub Date : 2005-04-01 DOI: 10.2190/8733-70W7-3576-6823
Catherine C. Giapponi, S. McEvoy
Despite the fact that the Equal Pay Act has been law since 1963, women’s pay lags behind men’s at every occupational level. Congress is now considering bills, like the Fair Pay Act and the Paycheck Fairness Act, to remedy salary inequities. This article explores the topic of pay equity as it relates to gender discrimination and provides a review of the research and literature related to the gender pay gap issue. The authors argue that the enforcement of existing law offers more promise in ameliorating pay disparities than does the proposed Fair Pay Act. The authors further contend that there are barriers to change, including social and cultural factors, which have limited the reach and effectiveness of the law in reducing the gender pay disparity. In April 2005, Senator Tom Harkin (D-Iowa) introduced the Fair Pay Act of 2005 to address pay difference between white men and women and minorities [1]. The legislation “would address the historic pattern of undervaluating and underpaying so-called women’s jobs” [2]. The bill says that “where working conditions are similar, wages should also be similar” [2].The proposed legislation seeks to address the gender wage-gap issue that has plagued the workplace for decades. Gender-based wage disparity continues to spark discussion, research, and proposals for remedy. A national group, Business and Professional Women USA,
尽管《同工同酬法》(Equal Pay Act)自1963年以来就已成为法律,但在各个职业级别,女性的薪酬都落后于男性。国会目前正在考虑法案,如《公平薪酬法案》和《工资公平法案》,以纠正工资不平等。本文探讨了与性别歧视相关的薪酬平等问题,并对与性别薪酬差距问题相关的研究和文献进行了综述。作者认为,在改善薪酬差距方面,执行现有法律比拟议中的《公平薪酬法》更有希望。作者进一步认为,有一些阻碍变革的因素,包括社会和文化因素,限制了法律在减少男女薪酬差距方面的覆盖面和效力。2005年4月,爱荷华州民主党参议员汤姆·哈金(Tom Harkin)提出了《2005年公平薪酬法案》(Fair Pay Act of 2005),以解决白人男女和少数族裔之间的薪酬差异问题[1]。这项立法“将解决所谓女性工作被低估和报酬过低的历史模式”[2]。该法案称“工作条件相似的地方,工资也应该相似”[2]。这项立法提案旨在解决困扰职场数十年的性别工资差距问题。基于性别的工资差距继续引发讨论、研究和补救建议。一个全国性的组织,美国商业和职业女性,
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引用次数: 18
Navigating the Land Mines of the Family and Medical Leave Act 《家庭和医疗休假法》的地雷
Pub Date : 2005-04-01 DOI: 10.2190/Q506-R037-3740-M701
J. A. Mello
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引用次数: 1
Disciplining Employees for Free Speech, Whistle Blowing, and Political Activities 对言论自由、举报和政治活动的员工进行纪律处分
Pub Date : 2005-04-01 DOI: 10.2139/SSRN.2612504
Helen LaVan, Marsha Katz
The first part of this article reviews literature and case law on disciplining employees for free speech, whistle blowing, and political activities. It focuses on the extent to which an employer regulates off-the-job behaviors of its employees. Although this is not a treatise on the underlying law, the authors discuss constitutional law (especially the First Amendment), limitations on at-will employment, the Whistle Blowers Protection Act, and some state laws and the potential impact of these on the employer’s behavior. The second section reviews and analyzes the results of litigation over an eleven-year period to determine the win/lose rates in the relevant courtroom battles and whether those rates have changed with an increasingly protective public policy.
本文的第一部分回顾了有关惩罚言论自由、举报和政治活动的雇员的文献和判例法。它关注的是雇主在多大程度上规范了员工的工作外行为。虽然这不是一篇关于基础法律的论文,但作者讨论了宪法(特别是第一修正案),对随意雇佣的限制,告密者保护法,以及一些州法律以及这些法律对雇主行为的潜在影响。第二部分回顾和分析了11年期间的诉讼结果,以确定相关法庭斗争中的胜败率,以及这些比率是否随着日益保护的公共政策而改变。
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引用次数: 2
Dress and Grooming Standards: How Legal are They? 着装和仪容标准:是否合法?
Pub Date : 2005-04-01 DOI: 10.2190/0811-177W-4857-W535
H. Findley, Cherie Fretwell, R. Wheatley, Earl E. Ingram
Many employers and researchers believe that even-handed dress and grooming standards are legal. However, in certain situations there can be serious legal pitfalls for those who adhere to this practice. Exceptions to dress and grooming standards may be required based on religion, freedom of expression, collective bargaining rights, and more recently, on sex. In an evolving part of the case law, dress and grooming standards based on sex-role stereotypes even-handedly applied are more often being ruled illegal by the courts. Moreover, many states protect dress as it relates to sexual preference. The relevant legal case history is reviewed and guiding principles provided. The manner in which people dress goes to the heart and soul of who and what they are in terms of personality, identity, gender, attitudes, and abilities [1]. Attire affects one’s image and how s/he is perceived by managers, other employees, and customers [1]. Mindful that a person’s appearance is a reflection of the company’s image and often has a direct impact on the firm’s bottom line, many organizations construct and implement dress and grooming standards to ensure that the organization is portrayed in a positive and professional manner. Sometimes dress
许多雇主和研究人员认为,公平的着装和仪容标准是合法的。然而,在某些情况下,坚持这种做法的人可能会遇到严重的法律陷阱。基于宗教信仰、言论自由、集体谈判权,以及最近的性别,着装和仪容标准可能需要例外。在判例法的发展过程中,基于性别角色刻板印象的着装和仪容标准往往被法院裁定为非法。此外,许多州保护着装,因为它与性取向有关。回顾了相关的法律案例历史,并提供了指导原则。人们的穿着方式直接关系到他们的个性、身份、性别、态度和能力[1]。着装会影响一个人的形象,以及经理、其他员工和客户对他/她的看法[1]。考虑到一个人的外表是公司形象的反映,通常对公司的底线有直接的影响,许多组织建立并实施着装和仪装标准,以确保组织以积极和专业的方式被描绘出来。有时衣服
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引用次数: 2
EQUAL PAY ACT CASES IN HIGHER EDUCATION 高等教育中的同工同酬法案案例
Pub Date : 2005-04-01 DOI: 10.2190/2HGR-MN4E-QFLG-1EJG
Sandra J. Perry
This article reviews case law dealing with the Equal Pay Act as it applies to claims of pay discrimination by faculty in higher education. Elements of the cause of action, the four statutory defenses, and the need for a proper comparator of the opposite sex are discussed, as well as the use of statistical evidence, the statute of limitations and continuing violations, whether the Equal Pay Act abrogates the Eleventh Amendment immunity of the states, and the results of several universities’ internal gender equity pay studies. It has been more than forty years since the passage of the Equal Pay Act, which was designed to eliminate pay discrimination based on sex by requiring equal pay for equal work [1]. Although women’s pay has increased since 1963, women still find that they earn on average only 78 percent of what men earn annually in the United States [2]. Faculty women in higher education similarly earn about 80 percent of what male faculty earn [3, p. 29]. There are two reasons for the overall lower salaries for faculty women compared to faculty men. One is that women are more likely to be employed at the lower paid rank of nontenure track lecturer or in unranked positions. The second is that women are more likely to be employed at associate and baccalaureate colleges where salaries are lower than at institutions that confer graduate degrees [3]. Not only do faculty women earn less on average than faculty men in higher education, but also in specific instances, faculty women have found that they are paid less than comparable male faculty of the same rank in their same institutions. In these situations, the Equal Pay Act may be violated. To understand whether an Equal Pay Act violation may have occurred, this article discusses the elements of
本文回顾了与同工同酬法有关的判例法,因为它适用于高等教育中教师工资歧视的索赔。本文讨论了诉因的要素、四项法定抗辩、对异性进行适当比较的必要性、统计证据的使用、诉讼时效和持续违规行为、《同工同酬法》是否废除了《第十一修正案》对各州的豁免,以及几所大学内部性别薪酬平等研究的结果。《同工同酬法案》(Equal Pay Act)通过至今已有40多年,该法案旨在通过要求同工同酬来消除基于性别的薪酬歧视[1]。尽管自1963年以来女性的收入有所增加,但在美国,女性仍然发现她们的平均年收入仅为男性的78%[2]。同样,高等教育中的女教员的收入约为男教员的80%[3,第29页]。总的来说,女教员的工资低于男教员有两个原因。其一,女性更有可能被雇佣在薪酬较低的职位上,比如非终身教职讲师或没有排名的职位。其次,女性更有可能在工资低于授予研究生学位的机构的大专和学士学位学院就业[3]。在高等教育中,女教师的平均收入不仅低于男教师,而且在特定情况下,女教师发现她们的收入低于同一机构中同等级别的男教师。在这些情况下,同工同酬法可能会被违反。为了理解是否已经发生了违反同工同酬法的行为,本文讨论了以下要素
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引用次数: 1
GLOBALIZATION AND THE AMERICAN LABOR FORCE 全球化和美国劳动力
Pub Date : 2004-04-01 DOI: 10.2190/HF7F-AMFU-YM1X-JXTX
Fred Maidment
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引用次数: 3
"NOW YOU HAVE IT, NOW YOU DON'T": THE NLRB'S FICKLE AFFAIR WITH THE WEINGARTEN RIGHT AND THE NEED FOR CONGRESS TO END THE CONTROVERSY “现在你有了,现在你没有了”:nlrb与weingarten右派的反复无常,以及国会结束争议的必要性
Pub Date : 2004-04-01 DOI: 10.2190/PFDL-BVJ1-0N2B-TU0Y
J. Owens, J. F. Morgan, G. Gomes
For more than two decades a debate has raged over whether nonunionized employees are entitled to a witness in investigatory interviews that could lead to disciplinary actions. Such a right was determined to exist for unionized employees in the 1975 landmark decision of National Labor Relations Board v. J. Weingarten, Inc. Ever since, the National Labor Relations Board (NLRB) has wrestled with the question of whether the so-called “Weingarten right” should be extended to all employees, whether unionized or not. After reviewing the important decisions that illustrate the NLRB’s incessant flip-flopping on the issue, we provide a summary of the NLRB’s latest (June 2004) rationale for denying this right to nonunion workers. To prevent the further and inevitable politicization of this issue if left to the whims of an ever-shifting NLRB majority, we suggest that Congress more fully enunciate the applicability of the Weingarten right to the nonunion workplace by amending the relevant section of the NLRA. The most important single piece of federal legislation in the area of labormanagement relations is the National Labor Relations Act (NLRA) [1]. Under the NLRA, Congress created public policy that seeks to balance the rights, responsibilities, and bargaining power of employers and employees. Individuals tend to think about the NLRA in terms of a unionized workplace. What many
二十多年来,关于非工会雇员是否有权在可能导致纪律处分的调查面谈中获得证人的争论一直很激烈。1975年国家劳工关系委员会诉J. Weingarten公司一案的里程碑式裁决确定了工会雇员的这种权利。从那以后,美国国家劳工关系委员会(National Labor Relations Board,简称NLRB)就一直纠结于所谓的“温加滕权利”是否应该扩展到所有员工,无论他们是否加入工会。在回顾了国家劳资关系委员会在这个问题上反复无常的重要决定之后,我们总结了国家劳资关系委员会最近(2004年6月)拒绝非工会工人享有这一权利的理由。为了防止这个问题进一步和不可避免的政治化,如果把它放在不断变化的国家劳资关系委员会多数人的突发事件中,我们建议国会通过修改国家劳资关系委员会的相关条款,更充分地阐明Weingarten权利对非工会工作场所的适用性。在劳资关系领域最重要的联邦立法是《国家劳动关系法》(National Labor relations Act, NLRA)[1]。根据NLRA,国会制定了旨在平衡雇主和雇员的权利、责任和议价能力的公共政策。人们倾向于认为NLRA是一个工会化的工作场所。许多
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引用次数: 0
IMPLEMENTING THE E.U.'S NEW SEXUAL HARASSMENT DIRECTIVE: ARE EMPLOYERS ENTITLED TO A DEFENSE? 落实欧盟。新的性骚扰指令:雇主有权获得辩护吗?
Pub Date : 2004-04-01 DOI: 10.2190/QPWP-VYVW-1AJE-CJ1U
J. Owens, J. F. Morgan, G. Gomes
Recent amendments to the Equal Treatment Directive prohibit sexual harassment as an illegal form of discrimination throughout the European Union. In implementing the directive by the October 2005 deadline, policymakers in each member state are to seek an equitable balance between the rights and duties of both employers and employees. Toward that end, member states need to: 1) determine the appropriate standard of employer liability for sexual harassment, and 2) decide what, if any, defenses are available to employers. This article discusses these developments and potential employer defenses.
最近对《平等待遇指令》的修订禁止在整个欧洲联盟将性骚扰作为一种非法的歧视形式。在2005年10月的最后期限之前实施该指令时,每个成员国的政策制定者都必须在雇主和雇员的权利和义务之间寻求公平的平衡。为此,成员国需要:1)确定雇主对性骚扰责任的适当标准;2)决定雇主可以采取哪些(如果有的话)辩护。本文讨论了这些发展和潜在的雇主辩护。
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引用次数: 3
WHEN IS SOMEONE "REGARDED AS DISABLED"? 什么时候“被视为残疾”?
Pub Date : 2004-04-01 DOI: 10.2190/LPDR-6FVY-CMHA-GT83
H. Findley, E. Stevens, Earl E. Ingram
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引用次数: 1
期刊
Journal of Individual Employment Rights
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