Affinity Orientation Discrimination Paper

Mariam Mikul
Professor Rona Layton
MGT 358 Employment Law
8 November 2014
Labor Laws in Regards to Gender and Affinity Orientation Discrimination: EU vs. USA
A successful company will inevitably grow, and very often it will expand beyond the boundaries of its original country. Being an international company brings a lot of benefits, but it also carries certain challenges—one of them is the difference between the US labor laws and that of a host country where the company decided to expand into. When a US company goes international, one of the likely places it chooses first is the European Union. This paper will outline some differences and similarities between the employment laws of the USA and the EU with regards to battling the gender and affinity discrimination at a workplace. Affinity orientation discrimination is the issue that came to light decades later than the gender discrimination, and while the gender anti-discrimination acts were similar nature in both the USA and the EU, the way affinity discrimination was dealt by these two entities differed significantly, as it becomes evident in
the relevant part of this paper—the EU applied top-down approach in both cases as usual with all of its directives while the USA applied top-down approach to battle gender discrimination and bottom-up approach when it came to fighting the affinity discrimination on a state by state basis.
GENDER DISCRIMINATION ACTS: EU VS USA
Women’s suffrage movement has existed in many European countries and in the USA from 19th century. They have achieved suffrage about the same time as well—end of the 19th century to early 20th century. However, the gender discrimination had not disappeared with full voting rights, and one of the areas of social life where discrimination has been persistent the longest was employment. Actually, it still persists to this day, as evident by the statistical fact that on average women earn 15% less than men in the USA (“Bureau of Labor Statistics” 2008). In the EU, meanwhile, the situation has been comparable to that of the USA. According to Eurostat of the European Commission, the gender pay gap (GPG) was 16.4% on average in 2012. It varied greatly, ranging from 2.5% in Slovenia to almost 30% in Estonia. This statistics is not very optimistic to women now, but it has been steadily improving since post-WW2 period. Such improvement can—at least partially—be attributed to gender anti-discrimination legislation that was implemented in 1964 in the USA and in 1975-1976 in the European Economic Community (EEC).
We should start with the USA, as it passed the major anti-discrimination legislation in 1964, a decade earlier than the EEC. The legislation was called the Civil Rights Act of 1964, and its Title VII was the relevant part in regards to discrimination prohibition in employment. Section 2000e-2(a) of Title VII states that: It shall be an unlawful employment practice for an employer -
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
The Civil Rights Act of 1964 and its Title VII is by far the most well-known legislation when it comes to gender discrimination provisions, but there was another law that preceded the Civil Rights Act by one year—Equal Pay Act 0f 1963. The scope of its provisions was narrower because it only addressed the gender pay difference. Section 206(d) of the Equal Pay Act states that:
(1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions …
In Europe, gender non-discrimination policy in regards to employment was implemented with the passage of Directive 76/207/EEC. Its purpose was to “to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training …” (Article 1). In Article 2 of this Directive, it is stated that “the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.” Finally, according to Article 3 of the Directive, “Application of the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy.”
Just as in case with the USA, the broad gender anti-discrimination Directive 76/207/EEC was preceded by a narrower directive that outlined the principle of equal pay for men and women—Directive 75/117/EEC—which was passed on February 10, 1975. Article 1 of this directive states that the principle of equal pay “means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions of remuneration.” Moreover, Article 3 directs Member States to “abolish all discrimination between men and women arising from laws, regulations or administrative provisions which is contrary to the principle of equal pay.”
The Civil Rights Act of 1964 and the Directive 76/207/EEC were both introduced with the purpose of combating gender inequality at workplace. Indeed, they were really needed at the time—the gender pay gap in the USA in 1960 was the stunning 40% (National Committee on Pay Equity). Since that time, the gender pay gap has fallen to the present 15-16% for both the EU and the USA, but final result of zero gender pay gap has not yet been achieved and probably will not be achieved for quite some time.
COMBATING AFFINITY DISCRIMINATION: STATE LAWS VS EU-WIDE DIRECTIVE
Over the last several decades, the Western society in general became more tolerant and more accepting of sexual orientation minorities as well as those whose affinity orientation had not conformed to the societal norms. These groups include gays, lesbians, bisexuals and transgender persons. With such acceptance, there grew an awareness of an existing employment discrimination against these groups; therefore, the European Union and the USA began to consider ways to deal with such discrimination. However, unlike other anti-discrimination regulations, the approach chosen by the EU and the USA significantly differed. As with other major regulations, the EU issued a directive that would need to be adopted by Member States in consideration with their existing laws and regulation. If this directive went against some of the existing laws, they would have to be modified or annulled as the EU-wide directive always had the priority over the national legislative acts. In the USA, on the other hand, the fight against the affinity orientation discrimination was [partially] implemented in a bottom-up approach—the states would adopt their own legislation prohibiting workplace discrimination based on affinity orientation.
The EU formalized its stance on the sexual orientation discrimination with the adoption of Directive 2000/78/EC which prohibited discrimination based on numerous factors, including sexual orientation. Article 1 of this Directive defines its purpose as “to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation” Then, paragraph 1 of Article 2 states that “there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.” Paragraph 2 of Article 2 of this Directive defines what constitutes direct and indirect discrimination:
For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons …
Directive 2000/78/EC is not the only act that prohibits sexual orientation discrimination in the EU, although it is the one that specifically prohibits workplace discrimination.
Article 21 of the EU Charter of Fundamental Rights offers protection against sexual discrimination in general terms by stating that “Any discrimination based on any ground such as … or sexual orientation shall be prohibited.” Member States had until December 2nd of 2003 to implement this directive by bringing their existing national laws in line with the Directive or by implementing new
legislation. In the USA, there is no federal legislation that would prohibit discrimination based on affinity orientation; however, 21 states passed their own laws that would outlaw either both sexual orientation and gender identity discrimination or just sexual orientation discrimination. Among the earlier are California, Oregon, Nevada, Washington, Minnesota, Iowa, Illinois, Maine, Vermont, Massachusetts, Rhode Island, Connecticut, New Jersey, Delaware, Maryland and District Columbia. Among the latter are Wisconsin, New York and New Hampshire (ACLU “Non-Discrimination Laws: State by State Information – Map”). For instance, paragraph 12921 of California government code states that “The opportunity to seek, obtain, and hold employment without discrimination because of a person’s gender, gender identity, gender expression or sexual orientation is a civil right.”
The fact that there is no nation-wide anti-discrimination legislation in regards to sexual orientation in the USA can demonstrate that there is no national consensus on the issue of the LGBT rights. Certainly, some employers may argue that forcing them to hire LGBT minorities would violate their right to freedom of religion; therefore, states were left to decide how to balance between these rights. It is easy to see that states historically leaning toward Democrats chose to offer protection against affinity orientation discrimination while states that lean to Republicans gave more preference to individual religious freedoms which come in conflict with LGBT anti-discrimination policies. Given the current unfortunate political climate in Washington D.C., the passage of affinity orientation discrimination is highly unlikely in the foreseeable future.
CONCLUSION
As we can see, significant improvements have been made over the second half of the 20th century in regards to workplace discrimination based on gender and affinity orientation. In part, these improvements can be attributed to the passage of anti-discriminatory acts—the Civil
Rights Acts of 1964 and the corresponding Directive 76/207/EEC to combat gender employment discrimination, and individual US states legislations and the Directive 75/117/EEC to combat the affinity orientation employment discrimination. These acts certainly helped reduce the incidents of these types of discrimination at the workplace, but they fell short of completely eliminating the problem. It is evident by the fact that currently the average gender pay gap is about 15% in the USA and 16% in the EU and by the all too common practices of discriminating against employees because of their affinity orientation in the USA and (to a lesser extent) in the EU. Of course, the most efficient remedy in this context would be to change the society to be more accepting toward all of its members regardless of their gender and sexual orientation.
Works Cited
United States. U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964. N.p.: EEOC. Web. 6 Nov. 2014.
European Union. The Council of the European Union. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Leiden: Leiden University, 2006. Web. 6 Nov. 2014.
Bennett-Alexander, D.D., Hartman, L.P. Employment Law for Business. New York: McGraw Hill, 2012. Print.
European Union. Eurostat. Gender pay gap statistics. N.p.: European Commission, 2014. Web. 5 Nov. 2014.
National Committee on Pay Equity. The Wage Gap Over Time: In Real Dollars, Women See a Continuing Gap. Pay-equity.org, 2014. Web. 5 Nov. 2014.
European Union. The Council of the European Union. Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. N.p.: EUR-Lex: Access to European Law. Web. 6 Nov. 2014.
European Union. The Council of the European Union. Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women. N.p.: EUR-Lex: Access to European Law. Web. 6 Nov. 2014.
ACLU. Non-Discrimination Laws: State by State Information – Map. N.p.: ACLU, 2014. Web. 6 Nov. 2014.
United States Congress. The Equal Pay Act of 1963. 88th Cong.Washington: GPO, 1963. Web. 6 Nov 2014.