Wrongful Work Termination Because of Age and Sex Discrimination

Submitted by Olga Zuyeva, BSN, MSHK, RNIII

Tags: civil rights discrimination profession

Wrongful Work Termination Because of Age and Sex Discrimination

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Wrongful work termination based on age and sex should be prohibited in workplaces.  Workplace discrimination occurs when an employer makes a job related decision to terminate employment based on characteristics such as sex and age, which makes it illegal. As a matter of fact, employment termination because of age and sex is prohibited by Congress, state, and local legislature.  Federal and state labor laws exist to protect employees from workplace discrimination.  Nowadays age and sex should not be a factor in termination of employment otherwise an employer will be liable for his/her actions.  No worker, except certain executives, can be forced into involuntary retirement at a certain age, as people are fully protected by the law.

As for the Title VII of the Civil Rights Act of 1964, it prohibits employment discrimination based on sex. The Title VII applies to private employer with at least 15 employees.  

As for Age Discrimination in Employment Act of 1967 (ADEA) under 29 U.S.C. 621 to 634, it prohibits employment discrimination against applicants and employees who are 40 years of age or older. The ADEA applies to private employers with at least 20 employees or more and including like labor organizations, employment agencies, state, local, and the federal governments.  These federal laws prohibit discrimination in the workplace and are enforced by the Equal Employment Opportunity Commission (EEOC).  In addition to the federal laws, all states and many local governments have their own laws that prohibit discrimination based on age and sex which apply to smaller employers. 

Age discrimination occurs when an employee or job applicant receives less favorable treatment because of his or her age. The ADEA protects workers age 40 and older from age- based discrimination that relates to terms, conditions, or privileges of employment.  An employer may not discriminate based on age when making employment decisions about hiring, firing, promotions, layoffs, compensation, benefits, job assignments, and training.  However, it results in a negative impact on workers age 40 or older and even if a practice or policy appears neutral because it applies to all workers, it may be illegal.  According to the law, employees covered by the act receive protection from harassment based on age when behavior is frequent and severe enough to create a hostile or offensive work environment, or results in an adverse employment decision against the protected worker. 

In the ADEA there are some exceptions such as when the company has less than 20 employees. Exceptions include: 

A)    Bona fide occupational qualification (BFOQ). Including certain age limitations are allowable if there is a bona fide reason to implement them. The age limitation must be necessary in order for the worker to perform the functions of the job adequately. There must be a reasonable belief that workers over a certain age are unable to perform the job safely or it is highly impracticable or even impossible to assess each worker individually. 
B)    Bona fide seniority system. A seniority system determines benefits and wages. 
C)    Reasonable factors other than age (RFOA). When the employees experience, education, or skills justify different treatment. 
D)    Bona fide executive or high policymaker. Executives and people that occupy high policy making positions can be forced to retire at age 65 if they will receive a minimum annual pension benefit of at least $44,000. 

Age limitations are only valid if an ADEA exception applies or if the Equal Employment Opportunity Commission (EEOC) grants an exemption.  According to the ADEA, “It prohibits age specifications and limitations unless a bona fide occupational qualification exception applies” (Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 to 634).  An employee can waive ADEA rights when participating in an employment termination program or an exit incentive program, it is called early retirement program.  Consequently, a valid waiver must meet certain minimum requirements, including such conditions as  it should be in writing and understandable; it specifically refers to ADEA claims and rights; it does not waive future rights and claims; it is given in exchange for something valuable that the worker is not already entitled to receiving; it advises the worker to consult with an attorney before signing the waiver; and it gives the worker at least 21 days to think about the waiver and at least 7 days to revoke it after signing. 

A protected person may file an age discrimination claim under both state and federal laws.  A worker must file a claim within 300 days of the discriminatory act or within 180 days, if it is an ADEA claim.

Sexual orientation discrimination refers to harassment or a differential treatment based on someone's perceived or actual gay, lesbian, bi-sexual, or heterosexual orientation.  Nevertheless, many workplaces and states have policies and laws against sexual orientation discrimination.  Also, the federal government protects employees from sexual orientation discrimination. The Employment Non-Discrimination Act (ENDA) of 2009 prohibits discrimination based on sexual orientation and has been introduced in Congress to ban discrimination based on sexual orientation. In the meantime, the bill prohibits employers from making decisions about hiring, firing, promoting, or compensating an employee based on sexual orientation. The ENDA also prohibits preferential treatment of gay, lesbian, bisexual, and transgendered employees as well as using quotas requiring an employer to hire a certain number of such employees.  At the state level there are more sexual orientation discrimination laws.  Almost half of the U.S. states, including the District of Columbia, have active laws that prohibit sexual orientation discrimination in both private and public workplaces.  Other states that prohibit sexual discrimination are California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.  Only a few states prohibit sexual orientation discrimination in only public workplaces, they are Delaware, Indiana, Michigan, Montana, and Pennsylvania.  However, some local governments have established rules against sexual orientation workplace discrimination in the form of city ordinances.  Whether you live in a state that has laws against sexual orientation discrimination or not, any company should have policies that prohibit sexual orientation discrimination.  By law, these policies can be more, but not less, stringent than the state or local law's standards.

Part III, The Substance Of The Articles, Is the Analysis.

In Stevenson, J. Petitioner, vs. The Superior Court of Los Angeles County (1997) case, the plaintiff Joan Stevenson   was discharged at the age of 60. Stevenson was employed by Huntington Memorial Hospital for over 30 years, performing her job competently and receiving commendations and pay increases. During 1992, shortly before her discharge, Stevenson had been on a medical leave of absence approved by the Hospital.  According to the Hospital's personnel policies and procedures manual, upon return from an approved medical leave of absence for occupational or not occupational injury or illness an employee [16 Cal. 4th 886] is guaranteed reinstatement to the same job classification and shift.  Also, it states that if it is "not possible for business reasons to guarantee reinstatement to the same job classification and shift, an employee will be reinstated to any available job ... which, in the judgment of the hospital, the employee is qualified to perform" and "will be given the opportunity to be reassigned to that same job classification and shift when next available" (Stevenson, J. Petitioner, vs. The Superior Court of Los Angeles County, Respondent; Huntington Memorial Hospital. No. S052588. Aug 27, 1997. 16 Cal. 4th 880). 

According to the facts, on November 6, 1992, the Hospital informed Stevenson that her right to reinstatement would be guaranteed until December 31, 1992.   On an unspecified day during November 1992, Stevenson notified the Hospital that she was ready to return to work.  At that time, the Hospital told Stevenson that she would not be allowed to return to her original job classification and shift, and it denied her reinstatement "to another job classification and shift with opportunity for later reassignment to her original job classification and shift." The Hospital terminated Stevenson's employment after December 31, 1992 because of her age and to deny her the opportunity to obtain benefits to which she was entitled and eligible as a 30-year employee.  On December 30, 1993, Stevenson filed a wrongful termination action against the Hospital.  She filed the complaint because of: (1) breach of employment contract; (2) wrongful discharge in violation of a public policy against terminating an employee for taking an approved medical leave; (3) wrongful discharge in violation of a public policy against age discrimination; and (4) breach of the implied covenant of good faith and fair dealing. 

The California statutory law prohibits employers from discriminating against older workers, the age over of 40, because of their age.  Under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900)  it makes it  "an unlawful employment practice for an employer to refuse to hire or employ, or to discharge, dismiss, reduce, suspend, or demote, any individual over the age of 40 on the ground of age, except in cases where the law compels or provides for such action." The FEHA defines an "employer" as a person "regularly employing five or more persons." Discrimination in employment on the basis of age violates a ‘fundamental’ public policy has not been resolved by this court.

At the end Stevenson has successfully pleaded a claim for tortious wrongful discharge grounded in the FEHA's provisions prohibiting discrimination against older workers because of their age.  The policy against age discrimination in employment, as applied to over-40 workers and to employers who regularly employ more than 4 workers, is delineated by statute, benefits the public at large, and is substantial and fundamental.  Furthermore, this public policy was well established at the time of Stevenson's discharge.  Because the Legislature has expressly declared that the FEHA's statutory remedies are cumulative rather than exclusive, assertion of a common law tort claim for wrongful discharge in violation of the public policy against age discrimination as articulated in the FEHA is consistent with the legislative intent underlying the FEHA.

In another case of Frantz, Appellan vs. The Beechmont Pet Hospital (1996), former pet hospital receptionist sued the hospital and the veterinarian, alleging that she was terminated from her employment because she was a female who became pregnant. In this case, the Court of Common Pleas, Hamilton County, entered summary judgment in favor of employer, concluding that there was no evidence of record from which reasonable person could conclude that reason given for employee's discharge, her alleged failure to communicate her plans for returning to work, was pretextual.  Then the employee appealed.  The Court of Appeal, held that: (1) she was replaced by a personnel who was not pregnant and, thus, established prima facie case of sex discrimination; (2) there was no requirement for the employee to present any evidence of additional disparate treatment before establishing prima facie case; and (3) genuine issue of material fact existed as to whether employee had communicated with employer regarding her return to work. Under the Federal Pregnancy Discrimination Act it is not a required accommodation of pregnant women which amounts to preferential treatment.  According to Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A. § 2000e “The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.

The prohibition of sex discrimination covers both females and males. Under the law the discrimination occurs when the sex of the worker is made a condition of employment or where there is a job requirement that does not mention sex but ends up barring many more persons of one sex than the other from the job.  Employer rules barring women from certain jobs based on their marital status or the fact that they have minor children to care for, or treating women differently from men when involved in workplace affairs or extramarital relations are all illegal.  In the Title VII it “Also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of sex.  Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude individuals on the basis of sex and that are not job related.”  Under the Equal Pay Act of 1963, employers are prohibited from discriminating on the basis of an employee’s sex in the payment of wages.  Employees of different sexes may not be denied equal compensation for performing substantially equal work in the same establishment.

Part IV, My Proposal for Change or Reasons Why the Present Situation Is Better Than Any Other Solution.

There are federal laws that protect against workplace discrimination based on sex.  However, there is currently no federal statute prohibiting private sector sexual orientation discrimination in the workplace because neither of these acts have been passed yet.  For example, if you work for the federal government, the federal government protects from sexual orientation discrimination.  However, several proposals to enact a law protecting employees from sexual orientation discrimination have been considered, with no success on them being passed.  The government needs to enforce federal statute to prohibit sexual discrimination in the workplace.  

In conclusion, wrongful work termination based on age and sex should be prohibited in workplaces.  An employer who is covered by civil rights law should not terminate employees based on their age and sex, which is considered as age and sex discrimination. The rights of the employees are protected by Congress, state, and local legislature.  As applied to employers who employ five or more workers, the policy prohibits employment discrimination against older workers.  Aging is a highly complex and variable process.  Chronological age alone is not a reliable measure of any individual's vitality or ability, and many individuals remain robust and productive well past the normal retirement age.  Nevertheless, some employers have discriminated against highly qualified older workers solely because of their age, either by not hiring them or by replacing them with younger persons. Title VII of the Civil Rights Act of 1964 and Age Discrimination in Employment Act of 1967 are the most significant source of anti-discrimination law for American workers.                       

Works Cited:  

  1. Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 to 634. 
  2. Civil Rights Act of 1964, § 701, 42 U.S.C.A. § 2000e. 
  3. Employment Non-Discrimination Act (ENDA) of 2009. 
  4. Equal Employment Opportunity Commission (EEOC). 
  5. Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900).
  6. Frantz, Appellant, v. The Beechmont Pet Hospital et all, Appelees. Court of Appeals of Ohio, First District, Hamilton County. No. C-960018. / Decided Dec. 31, 1996.
  7. Stevenson, J. Petitioner, v. The Superior Court of Los Angeles County, Respondent;    Huntington Memorial Hospital. No. S052588. Aug 27, 1997. 16 Cal. 4th 880. 
  8. Title VII of the Civil Rights Act of 1964.
  9. Unlawful discriminatory practices. 43 P.S. § 955.