Small-firm employees need more protection

Working Life

February 02, 1997|By Deborah Jacobs | Deborah Jacobs,CHRONICAL FEATURES

A recent Supreme Court decision will make it a whole lot easier for workers to sue small businesses for discrimination. But unfortunately it won't end widespread personnel practices that, in effect, cut off workers' rights.

The case involved Darlene Walters, who spent four years working as a bill collector for Metropolitan Educational Enterprises, a Chicago distributor of encyclopedias and other educational materials. In 1990, when she missed out on the promotion she wanted, Walters thought it was because of her gender. She decided to file a discrimination complaint with the Equal Employment Opportunity Commission (or EEOC), the federal agency that enforces civil rights laws. Soon after, Walters got fired.

The EEOC sued, charging Metropolitan with retaliating against Walters. Title VII of the Civil Rights Act of 1964 says it's illegal to punish employees for complaining about job bias.

Metropolitan argued that Title VII didn't apply. Mainly, it focused on the law's definition of "employer": a company which, when the alleged discrimination occurred, "has" at least 15 employees for "each working day" for at least 20 weeks.

How do you count employees? The law doesn't say, leading Metropolitan to argue that a company "has" an employee only on the days when that person is on the premises or on unpaid leave. By Metropolitan's reckoning, part-timers, who normally worked four days a week at the company, didn't count when they weren't in the office.

Walters and the EEOC claimed a company "has" employees whenever they're on the payroll, whether or not they show up for work each day. Last month, the Supreme Court agreed.

Metropolitan's definition would be "impossible to administer," said the court. In contrast, using the so-called payroll approach, all you need to know is whether someone started or ended a job during the year in question. People count as employees "for each working day after arrival and before departure." Thus the court found Metropolitan met the 15-employee minimum and had to comply with the law.

So will many other small businesses. The court's decision will most likely apply not only to Title VII (which bans discrimination based on race, sex, color, national origin or religion), but also to other important federal laws that only cover businesses of a certain size. These include the Age Discrimination in Employment Act (which prohibits bias against people older than 40, if the company has at least 20 employees) and the Americans with Disabilities Act (which protects workers with disabilities at companies with 15 or more employees).

Still, all these laws leave loopholes: A company can lay off workers before payroll hits the critical mass. The company also can require more workers to operate as free-lancers, temps or independent contractors. Since the law only covers "employees," these people, who aren't on staff, don't have the same legal protections.

It's time to put an end to the hairsplitting. Civil-rights laws should apply across the board, regardless of the number of people who work at a place and the job titles a company gives them. So far the main reason they don't is that businesses have successfully lobbied for arbitrary cutoffs and definitions. But as more and more people work for small companies or make a living as free-lancers, Congress needs to amend the laws to keep pace with reality. Any other approach to banning workplace discrimination leaves too many people with too few rights.

Pub Date: 2/02/97

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