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Employment discrimination in the US and UK – more similar than we think?

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imagesUS employment law is often thought of as less restrictive than its UK equivalent. In fact, US law on discrimination is very similar to the European model, and many UK protections from discrimination have been modelled on their US counterparts.

UK Discrimination Law

UK discrimination law arises mostly from European Union law (i.e. the EU Treaty and a number of EU directives which prohibit discrimination on a number of grounds, including gender, religion/belief, sexual orientation, age, disability and race).

These protections are implemented through the UK Equality Act 2010, which also provides UK employees with additional rights beyond those provided by the EU, in relation to marital/civil partnership status, gender identity and reassignment and pregnancy and maternity.

In the USA, a similar ‘top-down’ approach arises as a result of the country’s federal model. Federal law provides discrimination protection on a number of grounds at Federal level, which effectively provides a minimum threshold of protection, in much the same way as the EU does for its member states. However, State congresses are able to legislate on employment and employment legislation, therefore, varies from state to state.

The US Position

Federal Law

Federal laws on discrimination date back to 1866, but the majority come from the civil rights movement of the 1960s, when the majority of protections were set out in Title VII of the Civil Rights Act of 1964, for race, colour, gender, pregnancy or religion. Other federal Acts prohibit discrimination on grounds of age, disability and genetic information.

State Law

Many states have their own anti-discrimination laws. Some go no further than the federal minimum whereas others go further.

To view table click here.

California, for example, offers protection from discrimination on grounds of, among others, sexual orientation and gender identity; the District of Columbia provides protection from discrimination on grounds of political affiliation and attendance at college/university; and the state of Michigan makes height and weight protected characteristics.

Differences Between US and UK Laws

There remain some significant differences. For example, in the US, age discrimination protection is only extended to employees aged 40 and over, who allege that they have been discriminated against by reference to younger workers. In contrast, in the UK, this protection will apply equally to a younger employee alleging discrimination on the basis of his or her youth.

One of the protected characteristics in the UK is sexual orientation and gender identity protection, which is not a protected characteristic at US federal level, although many states provide equivalent protection.

Bringing a Claim

In the UK, the effect of a breach of discrimination legislation is to create a claim for compensation for financial loss and injury to feelings, subject to a duty of mitigation. An individual must bring a claim in the Employment Tribunal. The onus is on the individual to show an act or omission consistent with a finding of discrimination. Having established this, the burden shifts to the employer to prove that discrimination did not occur.

Equal Employment Opportunity Commission (EEOC)

The major difference in US discrimination claims comes from the role of the Equal Employment Opportunity Commission (EEOC), a federal agency which must review most ‘charges’ (or complaints) of discrimination before an employee will be permitted to bring a claim to court. Where a state-level prohibition has been violated, a similar body known as a Fair Employment Practice Agency will often consider the complaint (and will often discharge the EEOC’s duty at the same time).

The EEOC reviews over 100,000 charges of discrimination in each year, to consider whether there is a violation of discrimination law. In the majority of cases, no clear violation is found, and the employee is issued with a ‘Notice of Right to Sue’, allowing the employee to pursue the claim themselves against their employer in court in a similar manner to a UK claim. Where the EEOC’s investigation does find a violation, however, its powers are wide ranging and allow it to sue the employer on behalf of the employee or on its own account (through its Office of General Counsel).

Equality & Human Rights Commission (EHRC)

The EEOC’s other functions mirror those of its cousin, the UK’s Equality & Human Rights Commission (EHRC). The EHRC is a non-departmental public body with a similar public policy mandate to that of the EHRC, albeit without the obligation to review every charge of discrimination. Like the EEOC, the EHRC has a wide range of statutory powers, including the right to provide legal assistance by way of advice and representation for individuals who are a party to proceedings (usually claimant employees), intervening in proceedings to become a third party to the proceedings and acting as an adviser to the court. It also has the power to bring judicial review proceedings in its own name to challenge public decisions.

However, the EHRC does not share the EEOC’s budget or staffing levels and so uses its powers sparingly; EHRC assistance and interventions being rare. In the period between October 2007-June 2011, the EHRC intervened in 91 cases (around 20 per year), and provided assistance in a further 150 cases (around 35 per year). This can be contrasted with the EEOC’s staggering review of over 100,000 charges of discrimination in each year, of which over 250 result in EEOC issuing proceedings against employers directly.

Conduct of Proceedings

Like the UK, the primary remedy under US discrimination law is compensatory relief for loss of earnings and emotional harm. Unlike the UK, US provisions go further in remedy than mere compensation, providing for punitive damages in cases of serious wrongdoing. The regime for age discrimination is markedly different from claims for other protections, giving rise to an award of liquidated damages calculated at double the actual back pay owed to the plaintiff.

On costs, the position is again similar. Costs in the UK Employment Tribunals are awarded only in respect of vexatious or unreasonable conduct and in the US for frivolousness or misconduct by the plaintiff.

Cultural Differences

Despite the enormous similarities between US and UK discrimination protections, US employers in the UK can run into difficulties in the UK as a result of the procedural nature of some of the UK employment protections.

As a result of the UK culture of consultation and procedure, failure to follow the appropriate procedure for the stated reason for dismissal (e.g. performance, disciplinary or redundancy) can raise an inference that the real reason for dismissal was a discriminatory one. It is often for this reason that discrimination protection can be a headache for US employers; if an otherwise fair dismissal is not properly documented, unscrupulous claimants will invite Employment Tribunals to infer a more sinister reason for the dismissal.

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