Discrimination can arise in a variety of work-related activities. These include access to employment, to particular occupations, promotions and to training and vocational guidance. Moreover, it can occur with respect to the terms and conditions of the employment, such as:
• Recruitment
• Remuneration
• Hours of work and rest/ Paid holidays
• Maternity protection
• Security of tenure
• Job assignments
• Performance assessment and advancement
• Training and opportunities
• Job prospects
• Social security
• Occupational safety and health
In some countries, additional issues for discrimination in the workplace, such as age and HIV status, are growing in importance. It is also important to realize that discrimination at work arises in a range of settings, and can be a problem in a rural agricultural business or in a high technology city-based business.
Non-discrimination means simply that, employees are selected on the basis of their ability to do the job and that there is no distinction, exclusion or preference made on other grounds. Employees who experience discrimination at work are denied opportunities and have their basic human rights infringed. This affects the individual concerned and negatively influences the greater contribution that they might make to society as well as the employer.
2. Direct and Indirect Discrimination
Discrimination can take many forms, both in terms of gaining access to employment and in the treatment of employees once they are in work.
It may be direct, such as when laws, rules or practices explicitly cite a reason such as sex or race to deny equal opportunity. Most commonly, however, discrimination is indirect and arises where rules or practices have the appearance of neutrality but in fact lead to exclusions. This indirect discrimination often exists informally in attitudes and practices, which if unchallenged can perpetuate in organizations. Discrimination may also have cultural roots that demand more specific approaches.
Women constitute a growing proportion of the world's workforce, but consistently earn less than their male counterparts. Disabled employees may have particular needs that should be met, where reasonable, in order to ensure that they have the same opportunities (e.g. for training and advancement) as their peers.
3. Consequences of Discrimination at workplace or business:
A company that uses discriminatory practices in employment and occupation denies itself access to talents from a wider pool of workers, and thus skills and competencies. The hurt and resentment generated by discrimination will affect the performance of individuals and teams in the company. Increasingly, Young graduates and new employees also increasingly judge companies on the basis of their social and ethical policies at work. Discriminatory practices result in missed opportunities for development of skills and infrastructure to strengthen competitiveness in the national and global economy. Finally, discrimination isolates an employer from the wider community and can damage a company's reputation, potentially affecting profits and stock value.
4. Discrimination most likely to occur in the following situations:
i) Recruitment of new Workers: Problems can occur as a result of basic prejudice or misunderstanding on the part of those making the hiring decisions. They can also arise from the application of particular criteria or requirements that are not necessary for the job but negatively impact a particular group. Examples include: unnecessary qualifications, language skills that are not required by the job or a requirement that recruits must live in a particular area, unless this is necessary for the job.
ii) Retrenchment and restructuring: These processes often involve the dismissal of workers, which can give rise to discrimination against one group, depending on the procedure and criteria used. For example, dismissing those with the least amount of service may disproportionately affect women and minorities, who are often the most recent entrants in many longer established organizations.
iii) Payment and Promotion: Decisions on how much individuals are paid and who should be promoted can often be subjective and open to influence by discriminatory criteria. Assessment by managers may be subjective, or the rewarding of some characteristics such as strength more than others such as dexterity, for example, can disadvantage women.
iv) Dismissal for cause: While there is nothing inherently discriminatory about dismissing an employee for good reason, employers should ensure that policies and procedures are in place to ensure that such terminations are not masks for discrimination practices.
v) Training and Development: Just as preferences can be made during hiring and promotion, the same can be said for training and development. It is important that, an employee may be later denied promotion apparently on non-discriminatory ground that he or she had less training and qualifications.
vi) Harassment at Work: Where there is gender, ethnic or other tensions at work, harassment may take place. Women in particular are subjected to widespread harassment.
vii) Maternity Protection: In order to effectively participate in the workforce and not suffer discrimination, it is essential for women to receive particular protections in relation to maternity, childbirth, and breastfeeding.
5. Standards on Non-Discrimination:
Most countries have some form of non-discrimination legislation. This can range from simple one-sentence constitutional provisions prohibiting discrimination at large, to detailed labour-specific legislation on various discriminatory practices. Where rules against discrimination exist as part of national law, businesses are obliged to comply.
6. Discrimination and Labour or Employment Laws:
A) UNITED KINGDOM:
The list of Anti-Discrimination Legislations in UK, Which in fact applies to employment related issues.
1) Equal Pay Act, 1970
2) Sex Discrimination Act, 1975
3) Race Relations Act, 1976
4) Disability Discrimination Act, 1995
5) Employment Equality (Religion or Belief) Regulations, 2003
6) Employment Equality (Sexual Orientation) Regulations, 2003
7) Employment Equality (Age) Regulations, 2006
According to English Laws, a person should not be discriminated at work place on the basis of:
1. gender
2. marriage or civil partnership
3. gender reassignment
4. pregnancy and maternity leave
5. sexual orientation
6. disability
7. race
8. colour
9. ethnic background
10. nationality
11. religion or belief
12. age
An employer cannot discriminate against an employee on the basis of his employment contract. E.g. i) Part-time work ii) Fixed Term Contract Work.
English Law covers any kind of discrimination in:
1. recruitment
2. employment terms and conditions
3. pay and benefits
4. status
5. training
6. promotion and transfer opportunities
7. redundancy
8. dismissal
Types Discrimination:
i) Direct discrimination:
Direct discrimination happens when an employer treats an employee less favourably than someone else because of one of the above reasons. For example, it would be direct discrimination if a driving job was only open to male applicants.
There are limited circumstances in which an employer might be able to make a case for a genuine occupational requirement for the job. For example, a Roman Catholic school may be able to restrict applications for a scripture teacher to baptised Catholics only.
ii) Indirect discrimination:
Indirect discrimination is when a working condition or rule disadvantages one group of people more than another. For example, saying that applicants for a job must be clean shaven puts members of some religious groups at a disadvantage.
Indirect discrimination is unlawful, whether or not it is done on purpose. It is only allowed if it is necessary for the way the business works, and there is no other way of achieving it. For example, the condition that applicants must be clean shaven might be justified if the job involved handling food and it could be shown that having a beard or moustache was a genuine hygiene risk.
iii) Harassment:
You have the right not to be harassed or made fun of at work or in a work-related setting (e.g. an office party). Harassment means offensive or intimidating behaviour - sexist language or racial abuse, which aims to humiliate, undermine or injure its target or has that effect. For example, allowing displays or distribution of sexually explicit material or giving someone a potentially offensive nickname.
iv) Victimisation:
Victimisation means treating somebody less favourably than others because they tried to make, or made, a complaint about discrimination. For example, it could be preventing you from going on training courses, taking unfair disciplinary action against you, or excluding you from company social events.
1. Sex Discrimination and Equal Pay:
If a person is being discriminated at work because of his/her sex, marital status or gender, it is unlawful and the employer should stop the discrimination.
i) Sex discrimination:
Under the 1975 Sex Discrimination Act it's unlawful for an employer to discriminate against you because:
i) of your gender
ii) you are married
iii) you have had, are having or intend to have, gender reassignment; this means someone, supervised by a doctor, who changes their gender.
Sex discrimination laws cover almost all workers (men and women) and all types of organisations in the UK.
ii) Equal pay
The 1970 Equal Pay Act makes it unlawful for employers to discriminate between men and women in terms of their pay and conditions where they are doing either:
1. the same or similar work
2. work rated as equivalent in a job evaluation study by the employer
3. work of equal value
2. Age Discrimination:
Age discrimination laws are there to ensure that, a person is not denied a job, an equal chance of training or a promotion because of age. They also protect from harassment or victimisation because of age.
Age discrimination at work is unlawful in almost all types of employment. All employees and workers of any age are protected from age discrimination including partners of firms, contract workers and anyone in vocational training.
All aspects of employment (or prospective employment) are protected from age discrimination, including recruitment, employment terms and conditions, promotions, transfers, dismissals and training.
In some cases different treatment of a worker or employee because of their age can be justified, for example making special provisions for younger or older workers in order to protect their safety and welfare. See section on objective justification below. Age discrimination protection does not cover the provision of goods and services.
3. Sexual orientation discrimination:
It is against the law for an employer to discriminate against, victimise or harass employee because of his sexual orientation, or perceived sexual orientation.
An employee is protected against sexual orientation discrimination if:
i) he/she is a lesbian, gay, bisexual or heterosexual
ii) people think he/she is a gay, lesbian or heterosexual when he/she is not
iii) he/she have gay/lesbian friends or visit gay/lesbian clubs
4. Human rights in the workplace:
Every person’s human rights are protected by the law. If an employer is a public authority, they must follow the principles of the Human Rights Act.
The Human Rights Act:
The Human Rights Act was introduced in October 2000. It's based on the European Convention on Human Rights and adds protection for workers' rights and freedoms. Provisions within the Act deal with work-related matters.
In the public sector, it's unlawful for the employer to violate human rights under the Convention, unless an Act of Parliament means it has no choice.
If the employer isn't a public authority, then an employee can't make a claim against his/her employer for breach of human rights. However, human rights law has been incorporated into general employment law (for example, not to be discriminated against because of your sexuality) and applies to all employers. Any decision by an Employment Tribunal must follow the principles laid out in the Convention.
5. Racial Discrimination:
It's unlawful for an employer to discriminate against an employee because of his/her race. An employee is protected against racial discrimination at all stages of employment.
What constitutes racial discrimination:
The 1976 Race Relations Act makes it unlawful for an employer to discriminate against an employee on racial grounds. Race includes:
i) colour
ii) nationality
iii) ethnic or national origins
Under the Act, it doesn't matter if the discrimination is done on purpose or not. What counts is whether (as a result of an employer's actions) an employee is treated unfavourably because of his/her race. The Race Relations Act protects all racial groups, regardless of their race, colour, nationality, religious beliefs, national or ethnic origins.
6. Disability Discrimination:
Disabled workers share the same general employment rights as other workers, but there are also some special provisions for them under the Disability Discrimination Act (DDA).
The Disability Discrimination Act
Under the DDA, it is unlawful for employers to discriminate against disabled people for a reason related to their disability, in all aspects of employment, unless this can be justified. The Act covers things like:
1. application forms
2. interview arrangements
3. proficiency tests
4. job offers
5. terms of employment
6. promotion, transfer or training opportunities
7. work-related benefits such as access to recreation or refreshment facilities
8. dismissal or redundancy
Reasonable adjustments in the workplace
Under the DDA, an employer has a duty to make 'reasonable adjustments' to make sure a disabled employee is not put at a substantial disadvantage by employment arrangements or any physical feature of the workplace.
Examples of the sort of adjustments employer should consider, in consultation with disabled employee, include:
1. allocating some of the work to someone else
2. transferring to another post or another place of work
3. making adjustments to the buildings where he/she works
4. being flexible about the hours of work - allowing he/she to have different core working hours and to be away from the office for assessment, treatment or rehabilitation
5. providing training or retraining if he/she cannot do the current job any longer
6. providing modified equipment
7. making instructions and manuals more accessible
8. providing a reader or interpreter
7. Religion or belief discrimination:
It is against the law for an employer to discriminate against an employee because of his/her religion or belief. He/she is also protected against harassment or victimisation at work.
Protection from discrimination
There is no specific list that sets out what religion or belief discrimination is. The law defines it as any religion, religious or philosophical belief. This includes all major religions, as well as less widely practised ones.
An employee is also protected against discrimination if he/she do not follow any religion or belief, and the employer discriminates against him/her because of this. Political beliefs are not counted as a religion or belief.
An employee is protected against discrimination through any recruitment process and in employment, including the terms and conditions of employment, pay, status, training, promotion and transfer opportunities, redundancy and dismissal and benefits such as pensions.
B) INDIA:
The Constitution of India prohibits discrimination on the basis of a person's race, sex, religion, place of birth, or social status and government authorities worked to enforce these provisions with varying degrees of success. Rapidly evolving harassment laws in India have cast several obligations on Indian employers. Such laws demand non-discriminatory practices to be followed in workplaces as well as increased sensitivity towards the rights of women workforce. Very few legal domains are as important as the identification, prevention and resolution of discrimination and harassment in the workplace.
The Supreme Court of India has imposed several obligations upon employers to prevent or deter the commission of acts of sexual harassment in the workplace including adoption and publication of workplace policies against sexual harassment and setting up complaint committee(s) within the organization to address complaints from women employees. Failure to abide by the Supreme Court's directions, which under the Constitution of India have the force of law, could result in serious adverse consequences for employers. The Supreme Court has even imposed exemplary costs upon an employer for not following the policy and procedures laid down in its judgment. Such policy and procedures have also been incorporated in various existing Central and State labour legislations and a specific legislation on prevention of sexual harassment of women at the workplace which is in the making.
Labour Law System in India:
India is a founding member of the ILO and has ratified a total of 39 ILO Conventions. Of the eight core ILO Conventions, India has ratified four: the Conventions on Forced Labor (No. 29), Equal Remuneration (No. 100), Abolition of Forced Labor (No. 105), and Discrimination (Employment and Occupation) (No. 111). India has not ratified the remaining four core conventions on Freedom of Association and Protection of the Right to Organize (No. 87), Right to Organize and Collective Bargaining (No. 98), Minimum Age (No. 138), and Worst Forms of Child Labor (No. 182).
Industrial Disputes Act: The Industrial Disputes Act (1947) regulates reductions in force (RIF) and plant closures. It requires state approval 90 days before large firms (more than 100 employees) lay off employees. Likewise, no plant employing more than 100 employees can shut down without obtaining approval 90 days before the closure date. Laws also prohibit firms from employing contract laborers for extended periods of time without extending permanent employment.
Labor Law Reforms: Many observers believe that India's labor laws are antiquated and in need of reform. The second National Labor Commission (NLC), established by the government in September 1999, submitted its report in June 2002. It recommended reviews of Indian labour laws and the social security system and the strengthening of governmental programs to eradicate child labour. Although the NLC recommendations are not binding on the government, the Ministry of Labor has begun consulting various social partners on their possible implementation.
The Right to Association:
The Constitution provides for the right of association, and the Government generally respects this right in practice. Workers may establish and join unions of their own choosing without prior authorization.
In practice, legal protections of worker rights are effective only for the organized industrial sector. Outside the modern industrial sector, laws are difficult to enforce. The authorities generally prosecute and punish those persons responsible for intimidation or suppression of legitimate trade union activities when the victims are members of nationally organized unions. Unaffiliated unions are not able, in all instances, to secure for themselves the protections and rights provided by law.
The Trade Union Act prohibits discrimination against union members and organizers, and employers are penalized if they discriminate against employees engaged in union activities.
The Industrial Disputes Act prohibits retribution by employers against employees involved in legal strike actions, and this prohibition is observed in practice.
The Bonded Labour System (Abolition) Act (1976) prohibits all bonded labour by adults and children; however, such practices remain widespread primarily among the agricultural and rural unorganized workforce.
Status of Child Labour Practices and Minimum Age for Employment:
The Government prohibits forced and bonded child labor; however, this prohibition is not effectively enforced, and forced child labor continues to be a problem. The law prohibits the exploitation of children in the workplace. There is no overall minimum age for employment. However, work by children under 14 years of age is barred completely in "hazardous industries," which include passenger goods and mail transport by railway, and in factories and mines. Work in some other hazardous industries, as defined by the Child Labour (Prohibition and Regulation) Act of 1986, is regulated.
The Factories Act (1948) mandates an 8-hour workday and 48-hour workweek, as well as minimum working conditions. Workers are to be paid twice their regular wage rate for working overtime. State government laws set minimum wages, hours of work, and safety and health standards. These standards are generally enforced and accepted in the modern industrial sector, but are not observed in less economically stable industries.
Discrimination in Employment:
Despite laws designed to prevent discrimination, social and cultural practices as well as other legislation have a profound discriminatory impact, and discrimination against women, persons with disabilities, indigenous people, homosexuals, and national, racial, and ethnic minorities is a problem. The traditional caste system, as well as differences of ethnicity, religion, and language, deeply divides the society.
Women: The participation of women in the formal labor force is much lower than that of males (33 percent vs. 67 percent). The rate of promotion of women to managerial positions within businesses often is slower than that of males. The Equal Remuneration Act of 1976 mandates that men and women performing the same job receive the same payment; however, enforcement is often weak, especially in rural areas where traditions encouraging discrimination against females are deeply rooted. In both rural and urban areas, women are paid less than men are for the same job. Women experience economic discrimination in access to employment and credit, which acts as an impediment to women owning businesses. In a positive development, state-supported microcredit programs for women have begun to have an impact in many rural districts.
Sexual harassment is common, with a vast majority of cases unreported to authorities. In June 2004, the National Commission for Women (NCW) and the Press Institute of India jointly released a report that found that a majority of women experienced gender discrimination at their workplaces. Often, attempts by women to report harassment have resulted in further problems or dismissal. In 2004, the Supreme Court determined that a victim of sexual harassment could be awarded compensation based on the findings of an internal departmental report or investigation of the case.
Dalits, Scheduled Castes, and Scheduled Tribes: The Constitution and the 1955 Civil Rights Act outlaw the practice of untouchability, which discriminates against Dalits (formerly called "untouchables") and other people defined as Scheduled Castes. According to the 2001 census, scheduled castes, including Dalits, make up 16 percent of the country's population, and scheduled tribes (members of indigenous groups outside the caste system) comprise 8 percent of the population. Despite longstanding efforts by the Government to eliminate the discriminatory aspects of caste, discrimination based on the caste system still occurs throughout the country.
The Government uses a system of "reservations," similar to affirmative action programs in the U.S., in an attempt to decrease employment-based discrimination towards these scheduled castes and scheduled tribes. The Anti-Untouchability Act of 1955 and the Prevention of Atrocities Act of 1989 give further protection; however, Dalits are often relegated to the most menial of jobs. Employment discrimination against Dalits is widespread in rural areas; many rural Dalits work as agricultural laborers for upper caste landowners without remuneration. The majority of bonded laborers are Dalits. Those who attempt to change the status quo regularly face violence.
Persons with Disabilities: Although the Persons with Disabilities Act provides equal rights to all persons with disabilities, advocacy organizations admit that its practical effects have so far been minimal, in part due to a clause that makes the implementation of programs dependent on the "economic capacity" of the Government. Widespread discrimination occurs against persons with physical and mental disabilities in employment, education, and in access to health care.
C) UNITED STATES OF AMERICA:
In accordance with United States Laws, these are the Discrimination types, which may arise at workplace:
1) Age
2) Disability
3) Equal Pay/Compensation
4) Genetic Information
5) National Origin
6) Pregnancy
7) Race/Color
8) Religion
9) Retaliation
10) Sex
11) Sexual Harassment
1. Age Discrimination: Age discrimination involves treating someone (an applicant or employee) less favorably because of his age. The Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are aged 40 or older. It does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination.
It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older. Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.
Age Discrimination & Work Situations:
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Age Discrimination & Harassment:
It is unlawful to harass a person because of his or her age. Harassment can include, for example, offensive remarks about a person's age. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Age Discrimination & Employment Policies/Practices:
An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age.
2. Disability Discrimination: Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavourably because she has a disability. The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer ("undue hardship").
Disability Discrimination & Work Situations:
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Disability Discrimination & Harassment:
It is illegal to harass an applicant or employee because he has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
Harassment can include, for example, offensive remarks about a person's disability. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Disability Discrimination & Reasonable Accommodation:
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.
A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.
While the federal anti-discrimination laws don't require an employer to accommodate an employee who must care for a disabled family member, the Family and Medical Leave Act (FMLA) may require an employer to take such steps. The Department of Labor enforces the FMLA.
Disability Discrimination & Reasonable Accommodation & Undue Hardship:
An employer doesn't have to provide an accommodation if doing so would cause undue hardship to the employer.
Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer's size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.
Definition Of Disability:
Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.
A person can show that he or she has a disability in one of three ways:
1) A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
2) A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
3) A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
Disability & Medical Exams During Employment Application & Interview Stage:
The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.
For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.
Disability & Medical Exams After A Job Offer For Employment:
After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.
Disability & Medical Exams For Persons Who Have Started Working As Employees:
Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee's request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
The law also requires that employers keep all medical records and information confidential and in separate medical files.
3. Equal Pay/Compensation Discrimination
The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Job content (not job titles) determines whether jobs are substantially equal. All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay.
An individual alleging a violation of the EPA may go directly to court and is not required to file an EEOC charge beforehand. The time limit for filing an EPA charge with the EEOC and the time limit for going to court are the same: within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years. The filing of an EEOC charge under the EPA does not extend the time frame for going to court.
4. Genetic Information Discrimination:
Under Title II of the Genetic Information Nondiscrimination Act (GINA), it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.
The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.
Definition of “Genetic Information”:
Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members (i.e. an individual’s family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.
Discrimination Because of Genetic Information:
The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn’t tell the employer anything about someone’s current ability to work.
Harassment Because of Genetic Information:
Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee, such as a client or customer.
Rules Against Acquiring Genetic Information:
It will usually be unlawful for an employer to get genetic information. There are six narrow exceptions to this prohibition:
1) Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.
2) Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.
3) Genetic information may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws), where an employee is asking for leave to care for a family member with a serious health condition.
4) Acquisition through commercially and publicly available documents like newspapers is permitted, as long as the employer is not searching those sources with the intent of finding genetic information.
5) Acquisition through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace is permitted where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
6) Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
Confidentiality of Genetic Information:
It is also unlawful for an employer to disclose genetic information about applicants or employees. Employers must keep genetic information confidential and in a separate medical file. (Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.) There are limited exceptions to this non-disclosure rule.
5. National Origin Discrimination:
National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).
National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin or because of their connection with an ethnic organization or group.
Discrimination can occur when the victim and the person who inflicted the discrimination are the same national origin.
National Origin Discrimination & Work Situations:
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
National Origin & Harassment:
It is unlawful to harass a person because of his or her national origin. Harassment can include, for example, offensive or derogatory remarks about a person’s national origin, accent or ethnicity. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Citizenship Discrimination & Workplace Laws:
The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based upon an individual's citizenship or immigration status. The law prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation or government contract. Employers may not refuse to accept lawful documentation that establishes the employment eligibility of an employee, or demand additional documentation beyond what is legally required, when verifying employment eligibility (i.e., completing the Department of Homeland Security (DHS) Form I-9), based on the employee's national origin or citizenship status. It is the employee's choice which of the acceptable Form I-9 documents to show to verify employment eligibility.
6. Pregnancy Discrimination:
Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
Pregnancy Discrimination & Work Situations:
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.
Pregnancy Discrimination & Temporary Disability:
If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her the same as any other temporarily disabled employee. For example, the employer may have to provide modified tasks, alternative assignments, disability leave or unpaid leave.
Pregnancy Discrimination & Harassment:
It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Pregnancy & Workplace Laws:
Pregnant employees may have additional rights under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor. For more information on FMLA, contact the nearest office of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor.
7. Race or Colour Discrimination:
Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features). Color discrimination involves treating someone unfavorably because of skin color complexion.
Race/color discrimination also can involve treating someone unfavorably because the person is married to (or associated with) a person of a certain race or color or because of a person’s connection with a race-based organization or group, or an organization or group that is generally associated with people of a certain color.
Discrimination can occur when the victim and the person who inflicted the discrimination are the same race or color.
Race/Color Discrimination & Work Situations:
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Race/Color Discrimination & Harassment:
It is unlawful to harass a person because of that person’s race or color.
Harassment can include, for example, racial slurs, offensive or derogatory remarks about a person's race or color, or the display of racially-offensive symbols. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Race/Color Discrimination & Employment Policies/Practices:
An employment policy or practice that applies to everyone, regardless of race or color, can be illegal if it has a negative impact on the employment of people of a particular race or color and is not job-related and necessary to the operation of the business. For example, a “no-beard” employment policy that applies to all workers without regard to race may still be unlawful if it is not job-related and has a negative impact on the employment of African-American men (who have a predisposition to a skin condition that causes severe shaving bumps).
8. Religious Discrimination:
Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, and others who have sincerely held religious, ethical or moral beliefs.
Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.
Religious Discrimination & Work Situations:
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Religious Discrimination & Harassment:
It is illegal to harass a person because of his or her religion.
Harassment can include, for example, offensive remarks about a person’s religious beliefs or practices. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Religious Discrimination & Reasonable Accommodation:
The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause significant difficulty or expense for the employer. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.
Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.
Religious Accommodation/Dress & Grooming Policies:
Unless it would be an undue hardship on the employer's operation of its business, an employer must reasonably accommodate an employee's religious beliefs or practices. This applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. These might include, for example, wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an employee's observance of a religious prohibition against wearing certain garments (such as pants or miniskirts).
When an employee or applicant needs a dress or grooming accommodation for religious reasons, he should notify the employer that he needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant the accommodation.
Religious Discrimination & Reasonable Accommodation & Undue Hardship:
An employer does not have to accommodate an employee’s religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.
Religious Discrimination And Employment Policies/Practices:
An employee cannot be forced to participate (or not participate) in a religious activity as a condition of employment.
9. Retaliation:
All of the laws we enforce make it illegal to fire, demote, harass, or otherwise “retaliate” against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit).
For example, it is illegal for an employer to refuse to promote an employee because she filed a charge of discrimination with the EEOC (Equal Employment Opportunity Commission), even if EEOC later determined no discrimination occurred.
Retaliation & Work Situations:
The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
10. Sex Discrimination:
Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person’s sex.
Sex discrimination also can involve treating someone less favorably because of his or her connection with an organization or group that is generally associated with people of a certain sex.
Sex Discrimination & Work Situations:
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Sex Discrimination-Harassment:
It is unlawful to harass a person because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Sex Discrimination & Employment Policies/Practices:
An employment policy or practice that applies to everyone, regardless of sex, can be illegal if it has a negative impact on the employment of people of a certain sex and is not job-related or necessary to the operation of the business.
11. Sexual Harassment:
It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
7. Short Comparative Analysis: India & International Standards:
Other than Reservation provisions of Constitution of India, The Equal Remuneration Act of 1976, The Employment Exchanges ( Compulsory Notification of Vacancies) Act, 1959, The Persons With Disabilities (Equal Opportunities, protection Of Rights And Full Participation) Act, 1995, Anti-Untouchability Act of 1955, and Prevention of Atrocities Act of 1989, in India the Anti-Discrimination Rules at workplace are largely does not have specific legislations to deal with Equal Employment Opportunities. Very few legal domains are as important as the identification, prevention and resolution of discrimination and harassment in the workplace. Many observers believe that India's labor laws are antiquated and in need of reforms.
Therefore, to deal with Discrimination at Workplace, India requires a specific legislation. Only then as a welfare state, India can redress almost all the issues in this regard and achieve International Standards.
Another issue is implementation of legislations; we lack resources or will to implement the legislations, which are already in existence. E.g. Child Labour (Prohibition and Regulation) Act of 1986.
