A Case Of Sexual And Age Discrimination Law Employment Essay

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Heeae Chae 20123537
Professor. Louis Patterson
March.17th.2013
For the case of sexual and age discrimination, I’ve separated into two parts of writing. Firstly, I wrote about the sexual discrimination in terms of workplace. Second, I wrote about grey sphere at workplace.
Gender discrimination
Sex discrimination acknowledges four forms of discrimination: direct / indirect discrimination, harassment, and victimization. The gender discrimination has not been eradicated at some or most in the business world. I’ve selected down to three cases of gender discrimination; at upper levels of occupancy, when women get pregnant, and at the military recruiting. In fact that male can be discriminated, I’ve focused on discrimination toward women. I added the importance of even-out the gender inequality at workplaces.
There is suggestion that there are inborn differences of capability between men and women to do science. A simple piece of research led by Jo Handelsman at Yale University has recently suggested that women are treated less evenly than men. For research, 127 graduates wanting a laboratory manager job were given forms to assess the candidate in terms of competence, starting salary they would offer, willingness to coach the candidate, and likability. The result revealed that women ranked less competent than men and were offered a median starting salary almost $4,000 lower than men. In addition, the faculty was less willing to mentor women while, strangely, it found them to be more likeable. On a subconscious level, data like this suggests that men in science didn’t inevitably get there on merit itself, but rather due to their female competitors being discriminated against, which must be quite threatening and provoking a defensive response. Another recent report published by the Chartered Management Institute found that female executives earn £400,000 less over the path of their working lives than male co-worker with same occupations – and are far more likely to be made redundant. It seems that simply raising the numbers of women on employment panels is unlikely to a solution to the problem as the prejudice resides in all of us.
Second, Pregnancy discrimination is a form of sex discrimination. Women are suffered from escalating levels of illegal discrimination at workplace when they get pregnant. An amendment to title VII of the Civil Rights Act of 1964 states that "discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination" According to EOC(Equal Opportunities Commission), it is estimated that 30,000 women sadly lost their jobs each year as a consequence of pregnancy term and is believed that figure has dramatically risen. The recent poll shows that one out of seven women had lost their job while on maternity leave. Majority of people experience their jobs had been replaced by person who had covered their maternity leave when they came back to work, with a cut in hours or demotion and, what’s worse, all her clients have been given to other people, which means what she has built up over the years is gone. They are becoming redundant ahead of worse-performing men. The big issue is an assumption that now the women is less committed to job because of their being mothers, which adds the silent torture to them.
Thirdly, it is on debate whether the women are qualified for military scene. The Pentagon made a resolution to lift the ban on women serving in close combat roles. The stated reasons are not simple, but essentially related to men while it has nothing to do with women being not strong enough or efficient enough. Rather, it boils down to problems of men believing they might become over-protective and less capable where women are around. A report upon which the Ministry of Defence relies on the side of this position states :
"Key concerns, expressed by men and women, are around women being a distraction and the dangers associated with close relationships, men's desire to protect women and, despite the fact that we explicitly said this study was not addressing the issue, women's relatively lower physical strength and stamina. A significant number of men felt that, despite having had positive experiences of women, they would not want women in the infantry - there was a feeling amongst many that they would not feel comfortable asking a woman to close with and kill the enemy at very close range, and that they were concerned about the woman's response to this situation arising. This final step is felt to be different and a step too far."
Even though problem lies at men themselves, women are discriminated in the military recruitment.
Gender inequality is wrong in several terms. It is morally wrong, is bad economics and is bad for business. Besides the cases I’ve picked, the prominent evidences are shown as disparities in earnings for equal work, significant overrepresentation of men in leadership positions, limited occupational choices for women and men, and pay inequality. Especially in the emerging markets where the scene of egregious examples of gender related violence and the abuse of women threatens the society, gender inequality at work should not be ignored. Gender inequality in forms of guises and disguises is a largely unheralded threat to the countries which now looks for prosperity, cohesion and sustained growth.
Since the discrimination occurs, at least in parts of world, we should proceed further to get over the gender inequality issue, at the evaluation stage of the paper application, by hiring committees shortlist the "best" female applicants. While this, which, in turn, can be put on another debate of reverse discrimination, it lays out the next stage of the appraisement to be done directly, where many of the subconscious influences is invalid any more. The importance of making the law on one’s side increases before workplace discrimination becomes too bulky and dominant to cope with. According to Gender Equality Blueprint 2010 led by Elizabeth Broderick, the Sex Discrimination Commissioner, has identified the following five priority areas to promote gender equality: ensuring women’s lifetime economic stability and security, balancing paid work and family and caring responsibilities, promoting women in leadership, preventing violence against women and sexual harassment, and, strictly enhancing national gender equality laws agencies and monitoring.
If you want to get inspired and get confident to overcome the inequality at workplace, I’d recommend to pick up the book "Lean in". The author, Sheryl Sandberg who is the COO(chief operating officer) of Facebook, talks about how strong she wants to lead all female workers get paid more by overcoming their timidity to ask and negotiate through her book, "Lead in". You can also look up the paperwork for further insights about gender inequality by Elizabeth Blackburn, Ada Yonath and Carol Greider
Age discrimination
Age discrimination is international issue. It comes to be a more serious problem when thinking that older people without economic or legal protection are vulnerable to violence and neglect. The old people are threatened from various aspects. 1) They won’t maintain fine health or energy and desire to perform the job in the manner that a younger worker might. 2) They have underlying fears of their being resistant to change and not speedy with technology. 3) They worry about the perception that they’re not in it for the long haul as employers see them close to retirement time. 4) The perception that older people don’t want to work with someone younger than they are. 5) A low credibility comes from prejudice that when older workers accept a job at lower payment, or not a position as high as they had in last position, they might shift to other workplace if a better offer comes their way. Besides those, older jobseekers find it increasingly limited for chances of promotion and a much longer time to have a new job because not many of them are as fortunate to have an in-demand technique and expertise. Age discrimination puts a higher standard of proof, therefore, making it a far more difficult issue because that age was the decisive role became a must to attest for older workers, unlike the rules referred against due to race, sex, nationality, and religion. In fact, while Federal age-discrimination law is designated to protect workers over 40, A 2009 Supreme Court of U.S. decision has substantially heightened the burden of proof required to win an age-discrimination case.
The most evident reality that pushed older people into threat is that older people don’t have a traditional pension, haven’t accrued enough for rest of life and have been cut off of the workforce as the recession trickled through corporates in recent years. AARP (Association of American Retired Persons.) found that only 29% of non-retirees are, more or less, sufficiently prepared to retire comfortably. Additionally, 16% of the retirees ware revealed to probably need to return to work.
Cases (all works cited)
I picked two cases, one is that the claim against the age discrimination was proven to be justified and other is about the direct discrimination of using discriminatory dictions.
#1. (http://www.agediscrimination.info/cases/Pages/ItemPage.aspx?Item=662)
05 July 2012. Subjects : Justification; Retirement; International case
Mr Hörnfeldt had begun working for the Swedish postal services agency since 1989. For most of his employment, he worked just one day a week (although he wished to do more), but eventually worked 75% of full time hours. When he reached 67 on 15 May 200, he was retired at the end of that month in accordance with the Swedish mandatory retirement "67-year rule". Because Swedish pensions are calculated according to income earned over a whole career, Mr Hörnfeldt’s pension entitlement was low and did not afford him enough money to live on. Mr Hörnfeldt brought a claim arguing that his retirement was direct age discrimination and that his dismissal should be annulled. He argued that, because the 67-year rule did not take into account other factors such as his low pension entitlement, it could not be justified.
The Swedish Government argued that the legitimate aims behind the 67-year rule were:
to avoid termination of employment contracts in situations that are humiliating for workers by reason of their advanced age;
to enable pension regimes to be adjusted on the basis of the principle that income received over the full course of a career must be taken into account;
to reduce obstacles for those who wish to work beyond their 65th birthday; 
to adapt to demographic developments and anticipate the risk of labour shortages;
to establish a right, and not an obligation, to work until the age of 67, in the sense that an employment relationship may continue beyond the age of 65; and
to make it easier for young people to enter the labour market. 
The key question for the ECJ was whether or not the 67-year rule was justified. The ECJ accepted that these aims are, in principle, legitimate. It then went on to consider whether the 67-year rule was an appropriate and necessary way of achieving these aims. When considering this, the ECJ said that a compulsory retirement age was a commonly used tool by Member States to strike a balance between political, economic, social, demographic and/or budgetary considerations, and those Member States needed the discretion to find the right balance. This is perhaps why the ECJ did not consider whether 67 was the appropriate age to achieve thesethoseaims and why it did not assess whether another, less discriminatory, age (such as 70) might still allow the Swedish government’s aims to be fulfilled. The ECJ also referred to certain state benefits that an individual will be able to receive where their pension entitlement is low, as well as alternative employment arrangements that those aged 67 or above can enter into when their employment terminates (such as fixed term contracts). The 67-year rule does not force individuals to withdraw definitively from the labour market, but simply lays down the conditions under which an employer may derogate from the prohibition of age discrimination.
After having considered these factors, the ECJ concluded that the 67-year rule was justified.
#2. (http://www.agediscrimination.info/News/Pages/ItemPage.aspx?Item=608)
18 January 2012. Subjects : News; Burden of proof; Direct Discrimination
Mr James began working as a Production Manager for Gina Shoes Ltd in April 2006. He was 58 years old.
In 2009, as a result of the recession, Gina Shoes Ltd experienced a reduction in orders. One of the company directors, Mr Kurdash, became dissatisfied with Mr James’ performance.
In July, Mr Kurdash and Mr James met to discuss Mr James’ performance. At the meeting, Mr Kurdash asked Mr James whether his poor performance was caused by his age, adding that if he had been younger, it might have been possible to train him. Mr James, who was quite upset by these comments, resigned in August. In October, a grievance meeting took place, Mr Kurdash made a second remark about Mr James’s age and said words to the effect of "you can’t teach an old dog new tricks."
Mr James brought a claim of unfair dismissal and age discrimination.
The Employment Tribunal upheld Mr James’s unfair dismissal claim (but held that he would have been dismissed anyway after 6 months due to his contributory conduct) and dismissed his age discrimination claim. The Employment Tribunal disregarded Mr Kurdash’s second remark about Mr James’s age because it had been made after Mr James’ resignation. It held that Mr Kurdash’s remarks had probably been taken out of context and that there was nothing other than those comments to suggest that Gina Shoes Ltd’s treatment of Mr James had been a result of age discrimination.
Mr James appealed to the EAT on both on contributory conduct and age discrimination.
Decision
The EAT allowed Mr James’s appeal on both counts.
The EAT found that the fact that Mr Kurdash’s second remark came after Mr James’s resignation did not mean that it could not amount to detrimental treatment. The two occasions on which Mr Kurdash had commented on Mr James’s age clearly suggested that there was a prima facie case of age discrimination; it was immaterial that there was "nothing else" that demonstrated that age was a factor in the treatment of Mr James. This was enough to shift the burden of proof to Gina Shoes Ltd. It fell to them to provide a credible, non-discriminatory explanation for their treatment of Mr James, but Gina Shoes Ltd had failed to provide one.
In relation to the unfair dismissal claim, the EAT found that the Employment Tribunal had erred as it had considered the question of contributory conduct despite the fact that it had not been raised prior to its judgment.
Brighter side
Hiring older people has definite advantages at workplace. Both younger workers and the older workers will learn from each other. While younger people lend a hand with technology, the older workers give back with knowledge of how to get things done with tried and true methods and smarts about office politics. To check how older workers are still eligible to conduct the job, see the video of one nurse who is doing internship and learning at college in her 50+: http://www.forbes.com/sites/kerryhannon/2012/02/16/older-workers-staying-on-the-job/
To reduce the Age discrimination, attitude, stereotypes that can lead to discrimination against people of different ages should be edified. The older people should know that there are many great jobs out there. And they need to know where to look and how to prepare and market themselves to take one. The older jobseekers are recommended to keep up with technology, to prepare age-related questions, highlight that age doesn’t matter, and at the same time, being open to reveal the age. Laurie McCann, AARP Foundation Senior Litigation Attorney talks about Age discrimination, how to appeal a claim of Age discrimination and offers tips for older jobseekers. Check her video : http://www.overfiftyandoutofwork.com/experts/laurie-mccann/
Work cited:
http://www.guardian.co.uk/world/2013/jan/31/womens-vital-role-emerging-markets
http://www.guardian.co.uk/uk/defence-and-security-blog/2013/jan/24/reason-and-uk-and-army-and-women
http://www.guardian.co.uk/theguardian/2013/mar/15/facebook-sheryl-sandberg-lean-in
http://www.guardian.co.uk/technology/2013/mar/15/lean-in-sheryl-sandberg-extract
http://www.catalyst.org/knowledge/sex-discrimination-and-sexual-harassment-0
http://www.guardian.co.uk/law/2013/mar/09/women-on-maternity-leave-illegal-discrimation
http://www.forbes.com/sites/kerryhannon/2012/12/23/how-to-fight-age-discrimination/2/
http://www.agediscrimination.info/cases/Pages/ItemPage.aspx?Item=662
http://www.agediscrimination.info/cases/Pages/ItemPage.aspx?Item=608
http://www.forbes.com/sites/kerryhannon/2012/06/21/fighting-age-discrimination-new-aarp-survey/2/

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