Protection of Equal Employment Opportunities Issues - Essay Example

Protection of Equal Employment Opportunities Your Name: Class Name: Instructor’s Name: Date Assignment Due: The treatment of individuals of some groups in a better or worse way based on ethnicity, race, gender, sex, religion or other factors constitute to illegal discrimination. Employment discrimination has been a major concern for many countries. They, however, approach this topic differently and use their legislation to level the playing ground in employment through the protection of equal employment opportunities for their employees in their organizations. Equal employment opportunities (EEO) refer to the equal treatment of employees in all employment related activities (Alexander & Alexander, 2005). Countries have passed various laws that protect the individuals with designated characteristics such as age, race, gender or disabilities. These individuals belong to the protected class, a category that is identified for protection under the equal employment laws and regulation. This paper examines how the USA and Australia consider the issue of employment discrimination and then analyses the similarities and differences in their approaches that they use to address the concept of equal employment opportunity. In the US, illegal discrimination in employment may occur either through disparate treatment or disparate impact (Mathis & Jackson, 2008). Disparate treatment is illegal discrimination where employers use different standards to judge different individuals or they may use same standards, not related to a particular job, to judge individuals differently. On the other hand, disparate impact occurs when individuals of a protected class are substantially underrepresented due to employment decisions that do not work in their favor. Although significant focus has been taken by HR professional in the US to address the issue of discrimination, job harassments and retaliations, there are still cases of employment discrimination which need to be addressed. The federal gorvenment has set legal systems that seek to address the history of workplace exclusion of individuals on the basis of sex, race, religion and national origin. This sectin focuses on the US anti-disrcimination laws. It starts with the most important statute, Title VII of the Civil Rights Act of 1964, which has been central in the development of discrimination theory and has been applied to the subsequent discrimination laws. According to Ivancevich (2008), the Title VII of the Civil Rights Act of 1964 and its amendments prohibits employment discrimination on the basis of race, sex, religion, color, or national origin at any stage of employment by state, private or local government employers with more than fifteen employees. The major amendments to Title VII include the Equal Employment Opportunity Act of 1972 and the Civil Rights Act of 1991 (Blanpain, Nakakubo, Araki & Barnard 2008). Title VII also prohibits employment discrimination by employment agencies or labor unions of any size by the federal government. It forbids not only the intentional discrimination but also unintentional discrimination. The executive order 11246 originally issued in 1965 and amended in 1967 by executive order 11375 require the federal contractors to use affirmative action to eliminate the present and prior employment discrimination. Bloch (2001) argues that neither Title VII nor executive order 11246 forbids discrimination on age, the Age Discrimination in Employment Act of 1967 (amended in 1978 and 1986) prohibits employers to discriminate individuals who are above 40 years. It also prohibits mandatory requirements except in cases where age is a bona fide occupational requirement. Age discrimination in early retirement and associated benefit programs is prohibited by the Older Workers Benefit Protection Act of 1990. The Vocational Rehabilitation Act of 1973 and the Rehabilitation Act of 1974 forbid the discrimination against individuals with disabilities by employers who have contracts that are over $2500. Also, the Americans with Disabilities Act of 1999, prohibits discrimination on the basis of disability. Discrimination in various U.S. government agencies like the postal service based on religion, sex, color age, or national origin are covered under the the Executive Order 11478 of 1969. The immigration Reform and Control Act of 1986, 1990 and 1996 forbid discrimination in employment based on national origin or citizenship (Katz & Wheeler, 2011; Mathis, & Jackson, 2008). They have also established penalties against those who employ illegal aliens. The Pregnancy Discrimination Act of 1978 requires that women who are pregnant, or have childbirth or other related medical complications are not discriminated in workplaces or during employment. In Australia, discrimination is considered to take two forms: direct and indirect discrimination. These concepts have been defined in the legislation in a similar (but not always the same) manner as in the US. In fact, they are statutory formulation of the notion of disparate treatment and disparate impact discriminations that were developed during the initial operations of the Civil Rights Act of 1964 by the US supreme court (Rees, Lindsay & Rice 2008). Direct and indirect discrimination are concepts that form the backbone of the Australian anti-discrimination law. According to Encel (2000), direct discrimination occurs when an individual with an attribute that is protected by anti-discrimination such as sex or race is treated less favourably than another individual without the attribute. On the other hand, indirect discrimination occurs when one imposes same requirements or conditions on everyone, but more people with a prrotected attribute are disadvantaged in complying with that condition or requirement as compared to individuals without that attribute. It is directed to activities that are fair in form but are discriminatory in outcome. Australian anti-discrinmination laws have been developed against the direct and indirect discrimination on nominated grounds. Australia’s discrimination laws have been categorized into two: the commonwealth laws and the state/territory laws. According to (Rees, Lindsay & Rice 2008), the commonwealth laws operate at the federal level and prohibit discrimination on particular grounds while the state/territory laws prohibit discrimination on far more grounds. However, there is considerable overlap between those grounds covered by the commonwealth statutes and those under the state and territory legislation. Also, some overlap exist in the grounds of unlawful discrimination covered in the state and territory legislation. The four commonwealth statutes include the Racial Discrimination Act of 1975, Disability Discrimination Act of 1992, Sex Discrimination Act of 1984 and Age Discrimination Act of 2004. They deal with particular grounds of discrimination: race, disability, sex (including pregnancy, marital status and family responsibilities) and age respectively. Lansbury & Wailes (2011) highlights the state and territory laws to incude the South Australia Equal Opportunity Act 1984 (SA), the Australian Capital Territory Discrimination Act 1991(ACT), the Northern Territory Anti-Discrimination Act 1996 (NT), the New South Wales Anti-Discrimination Act 1977 (NSW), the Queensland Anti-Discrimination Act 1991 (QLD), the Western Australia Equal Opportunity Act 1984 (WA), the Tasmania Anti-Discrimination Act 1998 (TAS), and the Victoria Equal Opportunity Act 1995 (VIC). The state and territory statutes address discrimination issues on more nominated grounds than the commonwealth statutes to. Both countries have developed anti-discrimination laws by drawing heavily on the US Civil Rights Act of 1964 which was developed to respond to the civil rights movement of that era. Both countries have phrased the rights and obligations developed and refined by the judiciary based on the series of cases decided by the US supreme court (Alexander & Alexander, 2005). For Australia, they have provided a template in which the subsequent Australia anti-discrimination legislation has been shaped (Rees, Lindsay & Rice, 2008). Both the US and Australian anti-discrimination statutes follow the same pattern and they legally operate in the same way. They prohibit all forms of discrimination that affect the public life and legally enforce rights and obligations on various relationships and activities that people engage in. Thus, they prohibit discrimination against each other in undertaking those activities or in the course of those relationships. The anti-discrimination laws prohibit employment discrimination on the basis of age, sex, race, religion, color, national origin, handicap, pregnancy, marital status, family responsibility among other factors. Although the employment discrimination laws seem to be similar in one way or the other, USA and Australia use different approaches in dealing with discriminatory issues. The bodies and agencies that deal with the protection of individuals against employment discrimination vary and their structures are totally different. For instance, the enforcement of Equal Employment Opportunity (EEO) laws and regulations is done by the court system that interprets them and resolves disputes using these laws. However, the ultimate interpretation of the laws rests on the decisions made by the US Supreme Court. The US uses established government agencies at various levels to investigate and deal with illegal discriminatory practices. At the federal level, the US government uses two prominent agencies: the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC) (Mathis & Jackson, 2008). The EEOC agency is responsible in dealing with crimes against federal employment. The agency has the authority of issuing charges against these crimes and offering policy guidance on issues that influence the equal employment opportunity. OFCCP, on the other hand, is an independent agency that is part of the US Department of Labor and it ensures that federal contractors and subcontractors do not use illegal discriminatory practices. The agency also encourages employers to take affirmative actions so as to counter prior discriminatory practices. Apart from the federal agencies there are local and state agencies created by different municipalities and states respectively that oversee the implementation of local and state laws that prohibit discrimination on a variety of basis. When compared to the federal laws, they provide greater remedies and prohibit discrimination in wider areas. Australia deals with discrimination in a way that is far much different from that of USA. Unlike the US which treats discrimination as a crime, Australia views it as civil wrong (Mathis & Jackson, 2008). For Australia, it is a private responsibility for those who have been subjected to illegal discrimination to launch a claim in which the laws are enforced. The Australian anti-discrimination laws do not regulate the tasks of pursuing and prosecuting those who break the law unlike the statutory schemes of the US which impose legal obligations as well as regulating all aspects of community life. Australia deals with the breaching of the Anti-Discrimination legislation quietly and privately than other corporate laws and contraventions of trade practices (Lansbury & Wailes, 2011). Every jurisdiction in Australia establishes a two stage model which should be complied with if an individual wishes to avail her himself of the legal rights granted by anti-discrimination laws. An individual has no right to have a direct access to the courts or tribunals for the enforcement of the laws. He or she has to lodge a claim with a government agency first. For the commonwealth statute, one uses the Rights and Equal Opportunities Commission agency while for the state and territory statutes he or she uses the Anti-Discrimination Board agency (Rees, Lindsay & Rice, 2008). Both agencies use their evidence gathering powers and responsibility in the attempt to resolve the complaints privately. In doing so, they use primary dispute resolution mechanisms that include mediation and conciliation. Once these agencies have failed to resolve the complaint, the person is required to proceed to a tribunal or court for adjudication. However, Encel (2000) argues that the federal court and the federal magistrate court use a concurrent jurisdiction in determining the complaints lodged under the four commonwealth anti-discrimination statutes. On the other hand, the state and territory statutes adjudication is an exclusive function of the tribunals. In Victoria, New South Wales, Western Australia Anti-discrimination complaints are determined by a division of the state’s ‘super’ tribunal, while the other states and territories use ‘stand alone’ tribunal to deal with anti-discrimination cases. Both governments of Australia and USA have made attempts to protect equal employment opportunities for employees in their countries by creating laws that prohibit illegal discrimination based on age, race, sex, religion, disability, national origin and other characteristics. It is clearly indicated that in both countries, the type of discrimination seem to be similar, although not always the same, either direct or indirect. Even though these countries use different approaches to employment discrimination, they both advocate for legal actions to be taken in order to achieve equal employment opportunity. They require employers to be familiar with and comply with the EEO laws and regulations in ensuring there are no illegal discriminatory practices in their organizations. Differences have been noted in the approaches used by these countries. The antidiscrimination laws in the US are dealt with at the federal level l by agencies such as Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC) and at the local and states level by local and state agencies respectively. References Alexander, K. & Alexander, M. (2005). American Public School Law. New York: Cengage Learning. Blanpain, R., Nakakubo, H., Araki, T & Barnard, C. (2008). New Developments in Employment Discrimination Law. New York: Kluwer Law International. Bloch, F. (2001). Anti-Discrimination Law and Minority Employment: Recruitment Practices and Regulatory Constraints. London: University of Chicago Press Bray, Waring & Cooper (2009) Employment Relations. Sydney: McGraw-Hill. Encel, S. (2000). Age discrimination in employment in Australia. Ageing International 25 (2), 69-84. Ivancevich, J. (2008). Human Resource Management (10th ed). Boston: McGraw-Hill Irwin. Katz, C. & Wheeler, H. (2011). Employment Relations in the United States. In G. Bamber, R. Lansbury & N. Wailes (Eds.), International and comparative employment relations: globalization and the developed market economies (pp. 67-91) California: SAGE. Lansbury, R. & Wailes, N. (2011). Employment Relations in Australia. In G. Bamber, R. Lansbury & N. Wailes (Eds.), International and comparative employment relations: globalization and the developed market economies (pp. 119-145) California: SAGE. Mathis, R. & Jackson, H. (2008). Human Resource Management. New York: Cengage learning. Rees, Lindsay & Rice (2008). Australian Anti-Discrimination Law. Sydney: Federation Press. Read More