Question

1. May an employer fire an employee because that employee is gay?

2. May an employer fire an employee because the employee smokes outside the workplace?

3. May a man file a claim of sexual discrimination? Sexual harassment?

4. What rights does an employee have in the workplace?

5. What defenses does an employer have to allegations of discrimination?

Answer 1

2.In many cases, employers have no idea whether an employee smokes until that employee is on staff. Once an employee has been identified as a smoker, firing that employee can be tricky. In some cases, courts have upheld employers’ decisions to dismiss employees for smoking, even when the activities are taking place after hours. The argument in many of these cases centers on health insurance premiums, which can be higher for all employees, even if only some employees smoke.

Instead of firing employees, some workplaces are finding it far more valuable to implement smoking cessation programs. These programs support workers in their attempts to quit smoking by offering seminars, counseling, and substantial discounts for cessation aids like prescription medications and patches. Workplaces have also found that tying their wellness programs into their insurance plans allows them to reward those workers who take measures to get healthy with lower premiums, rather than punishing the employees who smoke.

3.Firing or penalizing an employee because they have filed a harassment claim is also illegal. This known as “retaliatory discharge” or “employee retaliation,” and is prohibited by state and federal laws. Retaliation is any action taken by an employee or a company against an employee because he or she filed a sexual harassment complaint.

If you were fired or penalized in retaliation for filing a claim against your employer, in addition to the sexual harassment complaint, you may also have a claim for retaliation. If you are able to prove that your employer retaliated against you because of your complaint, you may obtain remedies such as being reinstated to your former job position, and obtaining back wages for the pay that you lost.

4.All employees have basic rights in the workplace -- including the right to privacy, fair compensation, and freedom from discrimination. A job applicant also has certain rights even prior to being hired as an employee. Those rights include the right to be free from discrimination based on age, gender, race, national origin, or religion during the hiring process. For example, a prospective employer cannot ask a job applicant certain family-related questions during the hiring process.

In most states, employees have a right to privacy in the workplace. This right to privacy applies to the employee's personal possessions, including handbags or briefcases, storage lockers accessible only by the employee, and private mail addressed only to employee. Employees may also have a right to privacy in their telephone conversations or voicemail messages. However, employees have very limited rights to privacy in their e-mail messages and Internet usage while using the employer's computer system.

There are certain pieces of information that an employer may not seek out concerning a potential job applicant or employee. An employer may not conduct a credit or background check of an employee or prospective employee unless the employer notifies the individual in writing and receives permission to do so.

Other important employee rights include:

• Right to be free from discrimination and harassment of all types;
• Right to a safe workplace free of dangerous conditions, toxic substances, and other potential safety hazards;
• Right to be free from retaliation for filing a claim or complaint against an employer
• Right to fair wages for work performed.

5.Business necessity is an employer's defense related to a decision that is based on the requirements of the business and is consistent with other such decisions. To establish business necessity the employer must prove that such practice is job related.

Any form of discrimination such as race, gender, or religion is unlawful. It is prohibited that an employer make any assumptions about an employee or potential employee based on their race, gender, or religion. If an employer asks a potential employee about their race in order to make a hiring decision, that is discrimination.

However, an employer is allowed to ask a potential employee their race in order to track applicant flow or for affirmative action. It is mandatory that all employers hire employees based solely on their qualifications.

Bona Fide Occupational Qualification:

Bona fide occupational qualification is when an employer is allowed to hire employees based on qualities or attributions that would be discrimination when considered in other contexts. An employer must prove that the bona fide occupational qualification is reasonably necessary to the operation of the business to avoid liability for potential discrimination.

There are certain industries that are required to hire employees based on a quality that would in other terms be considered discriminatory. These industries include religious organizations and schools, the modeling industry, and the entertainment industry. If an employer is going to hire based on bona fide occupational qualifications, it is best to be sure that it really is necessary to the operation of the business.

Seniority Systems:

The Age Discrimination Act was enacted in order to prohibit employers from discriminating against individuals because of their age. The seniority system is a way to determine employment advantages based on the length of service of employees. It should offer rewards and opportunities to employees who have been with the company for longer periods of time.

It is unlawful for the seniority system to require older employers to involuntarily retire because of their age. All employees are entitled to the same amount of pay and to the same benefits.

A seniority system would only be considered discriminatory if it did not allow an employee to enjoy the benefits that come with seniority because of their gender, race, or religion. It is not meant to be discriminatory; it is a way to reward employees that have provided their services for a long period of time.