An employer should have a basic understanding of the impact of the following
laws
and legal theories on hiring practices.
When making a job offer to a candidate, an employer should be mindful
that anti-discrimination prohibitions affect the compensation component
of the job. Title VII of the Civil Rights Act of 1964 and the Wisconsin
Fair Employment Act prohibit discrimination with respect to compensation.
The Equal Pay Act prohibits sex discrimination in the form of unequal pay.
Regardless of the law under which a claimant might seek relief, "equal
pay" applies to all forms of compensation including fringe benefits,
overtime compensation, bonuses, commissions and incentives.
TITLE
VII OF THE CIVIL RIGHTS ACT OF 1964
AND THE
WISCONSIN FAIR EMPLOYMENT
ACT:
Title VII prohibits discrimination based upon race, color, religion, sex or national origin with respect to compensation, terms, conditions or privileges of employment. The Equal Employment Opportunity Commission (EEOC) is the enforcing agency and is authorized to investigate charges of discrimination and to bring actions in federal court. Discrimination is treating or favoring individuals differently on a basis other than individual qualifications. Discrimination is not unlawful unless the form of discrimination is prohibited by Wisconsin of federal law. There are four general categories of discrimination:
The Wisconsin Fair Employment Act (WFEA) prohibits discrimination based
on age, race, creed, religious observance or practice, color, handicap,
marital status, sex. national origin, ancestry, arrest record, conviction
record, membership in the National Guard, state defense force or any reserve
component of the military forces of the United States or this state, unfair
honesty testing, sexual orientation and sexual harassment. The Wisconsin
Equal Rights Division is the agency authorized to investigate charges of
discrimination, conduct hearings before an administrative law judge and
seek enforcement of it decisions.
The Age discrimination in Employment Act (ADEA) and the WFEA were enacted
to protect individuals aged forty or older from discrimination. Under the
ADEA, an individual has the right to a jury trial. Most of the age charges
in litigation involve employee termination's and layoffs. The EEOC enforces
the ADEA and the ERD enforces the WFEA. Under the federal law, employers
who are engaged in industry affecting commerce and who have twenty or more
employees are subject to the provisions of the ADEA. Wisconsin law covers
all employers.
The Fair Labor Standards Act (FLSA) was enacted to stimulate economy
by establishing a minimum wage and a maximum number of hours employees
can work. The purpose of wage and hour laws was to allow for social progress
by insuring to all working men and women a fair day's pay for a fair day's
work, to prevent the production of goods produced under conditions detrimental
to the maintenance of minimum standards of living necessary for the health,
efficiency and general well-being of workers and to protect the employee
from the use of substandard labor conditions.
The Americans With
Disabilities Act (ADA) prohibits discrimination against disabled
individuals in employment as well as in public services, public accommodations
and in public transportation. The ADA requires that substantial accommodations
be made for the disabled in telecommunications services. The employment
provisions of the ADA prohibit employers from discriminating against qualified
employees with disabilities in all aspects of employment including application
procedures, hiring, advancement, compensation, training and discharge.
The law seeks to eliminate any artificial barriers for the employment and
promotion of the disabled or those perceived to be disabled.
The law applies to employers with 50 or more employees and provides
eligible employees with up to 12 weeks of unpaid leave for: (1) the birth,
adoption or foster care of a child; (2) care for and employee's son, daughter,
spouse, or parent who has a "serious health condition"; or (3)
the employee's own "serious health condition," as defined by
the Act.
Requires employers to hire only citizens and aliens who are "authorized"
to work in the United States. Employers are subject to criminal and civil
penalties for knowingly allowing an unauthorized alien to work for the
employer.
REHABILITATION ACT OF 1973:
Section 503 of the Rehabilitation Act of 1973 requires all government contractors and subcontractors who are party to nonexempt government contracts or subcontracts in excess of $10,000 to take affirmative action to employ and promote qualified disabled persons. For purpose of federal and state law, a "handicapped or disabled person" is a person who (1) has a physical or mental impairment which substantially limits a major life activity; (2) has a record of such an impairment; or (3) is perceived as having such an impairment.