DISCRIMINATION AND AFFIRMATIVE ACTION

&
EMPLOYMENT RIGHTS

1
Lecture 7 and 8

Northern Caribbean University, - Kingston Campus

 Learning Objective.
2

 Students should be able to:

 Define discrimination
 Discuss sexual harassment
 Analyse the arguments against discrimination
 State how to avoid discrimination and harassment
 Describe affirmative action.
 Introduction

3
 Discrimination
4

 The decision employers make about hiring, promoting, pay, fringe

benefits, and other terms and condition of employment that
directly affect the economic interest of employees.

 Discrimination in employment and occupation means treating

people differently and less favourably because of characteristics
that are not related to their merit or the requirements of the job.
These characteristics include race, colour, sex, religion, political
opinion, national extraction and social origin.

 Bias or prejudice resulting in denial of opportunity or unfair

treatment regarding selection, promotion, or transfer.

Discrimination is practiced commonly on the grounds of age,

disability, ethnicity, origin, political belief, race, religion, sex, etc. facto
which are irrelevant to a person’s competence or suitability.
 Forms of Discrimination
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Gender
Race
Religion
Age
Disability
 Forms of Discrimination
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 Gender:
This is based on the fact that a person is male or
female.

 Race:
Racial discrimination is based on people's
perceptions.
These perceptions of an individual's cultural, social or
physical differences, such as colour.

 Religion:
Is when employers refused to hire or promote
individuals due to prejudice against members of certain religious
groups.eg. Adventist and Catholics.
 Forms of Discrimination
7
 Age:
Employers employing younger persons

whom they believe have more up-to-date

skills and innovative ideas.

 Disability
Employers refusal of employing persons
with disability. This deny them of

opportunities.
 Pregnancy Discrimination
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Pregnancy discrimination exists when:

Women of child-bearing age are denied
jobs on the basis that they may require
time off from work due to pregnancy.
A woman is fired because she is
pregnant.
A woman is denied a promotion
because she is pregnant.
A woman is denied benefits for
pregnancy because she is unmarried.
 Pregnancy Discrimination Act
9 THE MATERNITY LEAVE ACT, 1979

 A worker is entitled to 12 weeks' maternity leave, which

may be extended by her employer. However, in order to
qualify for maternity leave with pay, she:
 Must be 18 years or older;
 Must not be a domestic worker;
 Must have been continuously employed to the employer
for at least 52 weeks prior to the date on which her
maternity leave begins;
 Must have informed her employer that she is pregnant
in advance of the date of her expected confinement.
 Generally, she is also entitled to maternity pay for the
first eight weeks of her maternity leave. But, if she had
already received paid maternity leave from the same
employer in respect of three pregnancies, she is not
entitled to more maternity pay from that employer.
 Pregnancy Discrimination Act
10 THE MATERNITY LEAVE ACT, 1979
ENTITLEMENTS
 The act also provides that an employer is required to allow a
worker to return to work at the end of maternity leave in the
capacity in which she was employed and on the same terms and
conditions as she enjoyed prior to her absence on maternity leave.
 An employer who does not allow a worker to take maternity leave
in accordance with the act or who fails to pay maternity pay may
be convicted before a Resident Magistrate to a fine not exceeding
$500 or to a period of imprisonment not exceeding four months.
An employer who terminates a worker's employment wholly or
partly because of her pregnancy may be convicted before a
Resident Magistrate to a fine not exceeding $1,000 or for a period
of imprisonment not exceeding six months.
 Based on the provisions of the act, it is unlawful for an employer to
dismiss a woman on grounds that she is pregnant. However, a
paltry fine of $1,000 is hardly an adequate deterrent. Further, there
is no provision in the act to prevent a potential employer from
choosing not to employ a woman because she is of child-bearing
age, or that she is, in fact, pregnant.
 Pregnancy Discrimination Act
11 THE MATERNITY LEAVE ACT, 1979
DEFICIENCIES

 Whereas one must accept that there are genuine

economic challenges encountered by businesses which
may be obliged to pay maternity pay for the absent
worker, as well as wages to her replacement, clear
legislative guidelines are required to address the fact
that there are methods of discriminating against
pregnant women which are not contemplated by the
Maternity Leave Act or any other local legislation.
 Discrimination in any form is reprehensible, and the
Maternity Leave Act must be revised and due
consideration needs to be given to whether there is
need for additional companion legislation.
 Discrimination - Evaluations
12

 Job description – Should be clear

 Clear instruction – When order is given it should be
clear, preferable in writing
 Clear performance Criteria – Clear and achievable
performance indicators.
 Transparency – clear to everyone whom it is related to.
 Documentation – process and procedure as to how
things should be done must be written and signed off.
(manuals)
 Terms or conditions of employment – compensation ,
employment period, rules and regulations.
 Argument against Discrimination
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Discrimination can harm:
 Individuals:
Inefficient matching of people to Job – choose most
qualified for Job irrespective of age, race or sex.

 Firm or organisation:
Low productivity, reduced efficiency. (Ultilitarian
argument)

 Society:
Unfair distribution of employment. Inequality, uneven
distribution of wealth. (Kantian Argument)
 Argument against Discrimination
14

Justice:
 Like cases should be treated alike.
 Unlike cases should be treated differently.
 Treatment of each case must be justified.
 Aim is to create social and economic
equality.

( )
Aristotle
 Avoidance of Discrimination and
15 Harassment
Job Analysis
 Accurate job description that details the actives or
responsibilities involve in a position.
 Job specification – listing the qualification required to
perform the job as described.

Recruitment and selection

 Advertise position internal and external
 Select multifaceted selection panel (race, political
groups)
 Clear application forms.(instruction should be clear )
 Avoidance of Discrimination and
16 Harassment
Objective Test
 Measurement of specific knowledge and skills.
 Measurement of intelligence and general attitudes
 Gauge suitability for employment (ask ques. To pull out
suitability for job)

Subjective Evaluations
 Interviews to be done by employees with experience or
are acquainted with the related position.
 Prepare standardized application form related to the
position.
 Prepare interview questions related to the position.
 Sexual Harassment
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Sexual harassment occurs when one employee

makes continued, unwelcome sexual advances,
requests for sexual favours, and other verbal or
physical conduct of a sexual nature, to another
employee, against his or her wishes.

(Heathfield Susan)
 Preventing Sexual Harassment
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Sexual harassment program

Develop a Sexual harassment policy

Communicate the policy
Set up procedures
Take appropriate Actions.
 Affirmative Action
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 After 1964 Civil Right Act

 Employers scrutinise hiring and promotion with the aim
to eliminate sources of discrimination.
 Did not result in the advances of opportunities for
women and racial minorities.
 Special programmes adapted to provide "simple
justice”, preferential treatment provided to ensure
equality of opportunity.
 Special arrangements made for employment in terms
of number or percentage of women or minority groups.
 Arguments for Affirmative Action
20

Minority groups were at a disadvantage,

employers could use subjective and/ or
unrealistic methods for prevention of
employment.
Promotions could be determined by race, or
sex.
Termination could be subject to sex or race.
Arguments against Affirmative Actions
21

Could be seen as reverse

discrimination or unfair treatment in
competitive cases.
With increasing unemployment the
lines can become unclear.
Can create ethnic and political tension.
 EMPLOYMENT RIGHTS

Lecture 8

22

Northern Caribbean University, - Kingston Campus

 Learning Objective.
23

Students should be able to:

Identify Unjust Dismissal
Describe employment at Will
Explain just Compensation
 Introduction

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 Employees Rights
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The rights that an employee has to be treated in a fair, morally

acceptable, or legal way.
 Employees Rights
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Labour Laws
Human rights – Treated with dignity and
respect.
Trade union regulations
Working conditions – safe environment
Fair pay
Provision of working tools
 Employees Rights
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Examples:
Right to due process
Freedom of expression
Just compensation
Safe working environment
Participate in work place democratic
processes.
 Redundancy
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 1.Provision or existence of more than one
means or resources to perform an activity or
function.

 2. Repetition of parts or subsystems (or whole

systems) to provide a backup in case of primary-
system failure

 3. Elimination of jobs or job categories

caused by downsizing, rightsizing, or
outsourcing

www.businessdictionary.com
 Redundancy Act
29
The Employment (Termination and
Redundancy
Payments) Regulations, 1974

Sets out conditions in which redundancy

termination is applied.
Payment computation
Outline the process.

NB: Positions are made redundant not

individuals.
 Just Dismissal
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Economic adjustment:
Employer as too many workers or workers
without the right skills.

Inadequate job performance

Inappropriate or disruptive behaviour on the

job.
 Unjust Dismissal
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Occurs under two condition:
1. Employee is dismissed without a good cause.
2. Dismissal occurs without a fair hearing.
(Due process was not followed)

 Policies were not observed.

 Conditions of dismissal unclear.

 Position made redundant and new staff is hired

for same position.
 Role of Unions
32

Defend the rights of workers- when breaches

occurs.
Sensitize workers with respect to changes.
Monitor working conditions.
Negotiate wage increases and benefits.
Negotiate improved working conditions.-
Observe and enforce health and safety
requirements.
 Due Process
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Follow established grievance procedures.
Follow termination policy.
Where redundancy is the method of
separation ,termination must be according to
the act.
Involve relevant stakeholder in a timely
manner.
Matters that appear to be criminal in nature
should be handle by the police.
Process including rules , regulation and
related penalties should be documented and
accessible to all.
 Arguments offered as Justification for a Right
34 to Due Process.

Terminated employees suffers some form of

substantial harm that ought not to be inflicted
without an adequate reason and fair hearing.

The right to due process is owed out of

respect for the dignity of the workers.

Treating employees fairly is simply good

management practise that pays off in
increased productivity.
 Joint Industrial Council (JIC)
35

Governs the Construction Industry

 sets the rules, regulations and negotiate
increases.

Labour increases applied February 1, each

year.

Documents includes information on benefits ,

rules, penalties for breaches and due process.
 Industrial Dispute Tribunal (IDT)
36

 Final body for arbitration of unionise matters

between management and workers.

 Matters are only referred when there is no

possible agreement between management and
workers.

 Decisions by the IDT are final and binding.

 If termination, was deemed to be unjust or due

process was not followed. The IDT can instruct
compensation and or reinstatement.
 Employment at Will
37

Employer may terminate an employee at

any time for any reason unless an
employment contract specify otherwise.

Comes into existence when the two parties

willingly enter into an agreement and the
relation continues to exist only as long as
both parties will that it does so.

Each party is free to end the arrangement

at any time, without violating the rights of
the other.
 Arguments for Justification of
38 Employment at Will
Property Right:
Freedom of Contract
The Efficiency Argument

Property Right:

Both employee and employer have property

of some kind.
Employer – owns machinery, raw material and
certain amount of money for wages.
Employee – labour to operate machinery and
turn raw material into finished products.
 Arguments for Justification of
Employment at Will
39

Freedom of Contract
Employment is viewed as a contractual
agreement between employees and
employers.

The Efficiency Argument

Is a utilitarian one, that states that the
efficient operation of the business should
benefit both the employee and employer.
 Just Compensation
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Highly subjective –

Qualification and experience must be

considered.

Dependent on sector – private or public

Subject to comparative data from similar

organisation within sector.

Jamaica Employee Federation (JEF)

produces statics on compensation packages
throughout the Island.
 Minimum Wage
41
 Lowest wage that an employer may legally pay
to an employee.

 Can be defined wage for a full time worker that

would enable that person to obtain a standard
of living that is above the poverty level or some
other measure of well-being.

 Current minimum wage in Jamaica is: $7,000

per 40-hour work week, and the minimum
hourly rate from $175 per hour.
 For security Guard it is: $9,700 per 40-hour
work week, and the minimum hourly rate from
$242.50 per hour.
 Contracts
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Special arrangements between employer and
employee for services.

Compensation package, terms and conditions

may differ from permanent staff .

Contract period is defined

Performance and termination clause is

included.
 Faith and Learning
43

1 Thess. 5;11
Therefore encourage one another and build
each other up.

Ephesians 4: 28

Let him who steals, steal no longer but rather let

him labour, performing with his own hands what
is good, in order that he may have (something)
to share with him who has need.