Several federal laws protect workers by ensuring equal access to job opportunities. These laws prevent employers from discriminating against potential and existing employees based on things such as gender, race, nationality, age, and disabilities. Certain laws are more applicable to the agricultural industry based on how the term “employer” is defined.
Except for the Immigration Reform and Control Act, all of the laws discussed below are overseen and enforced by the Equal Employment Opportunity Commission (“EEOC”). The EEOC was created by the Civil Rights Act of 1964 to ensure that employers do not discriminate against job applicants or employees. The Immigration and Naturalization Service is responsible for enforcing Immigration Reform and Control Act.
Equal Pay Act
The Equal Pay Act of 1963 made it illegal to set wages based on an employee’s sex. In other words, the Equal Pay Act prohibits employers from paying different wages to men and women working in the same job or doing similar labor. While employers cannot pay men and women differently for performing the same or similar jobs, they can implement pay scales. Pay scales allow employers to set wages based on experience, seniority, amount of product produced, or other factors as long as they are not based on the sex of the employees.
The Equal Pay Act amended the Fair Labor Standards Act (“FLSA”), which means that the same exemptions that apply to agricultural employers under FLSA also apply under the Equal Pay Act. Agricultural employees are covered by the FLSA and entitled to the federal wage discrimination protections of the Equal Pay Act if they are employed by a farm that used 500 or more “man-days” of agricultural labor during any calendar quarter in the previous calendar year. For more information on FLSA agricultural exemptions, look at another National Agricultural Law Center blog post here. Because the Equal Pay Act is an FLSA amendment, many agricultural employers are exempt from the Equal Pay Act’s requirements.
Civil Rights Act
Under Title VII of the Civil Rights Act, employers cannot discriminate against someone based on their race, religion, color, national origin, or sex. Title VII prevents employer discrimination during every aspect of employment. This includes hiring, firing, work assignments or promotions, and compensation. Under the Civil Rights Act, an employer is anyone who has at least 15 employees for each workday during at least 20 calendar weeks of the previous year. There are no requirements that the 20 calendar weeks be consecutive.
Under certain limited circumstances, employers can discriminate based on religion, national origin, or sex. This is called bona fide occupational qualifications (“BFOQ”) and allows employers to discriminate because it is reasonably necessary in order to do the job. This exception is limited and does not apply to race because it is a protected class. In the case of a BFOQ claim based on sex, it must be proven that the required characteristic is only found in the included sex and is necessary to perform the job. For example, a farm that refuses to hire women because no woman could lift over 100 pounds and the lifting of 100 pounds is considered necessary to the job would not be a BFOQ. This is because proof of a woman lifting 100 pounds would show that strength is not limited to the male sex. Likewise, in most cases questioning a potential employee on their religious beliefs would be non-job-related and potentially discriminatory. However, if the employer is a religious entity of some type, such as a church or religious educational institution, the applicant’s religion would be a BFOQ. For example, a Catholic church or Baptist university may hire someone because they share the same religion.
Age Discrimination in Employment Act
The Age Discrimination in Employment Act (“ADEA”), enacted in 1967, protects workers 40 years and older from employment discrimination. Under the ADEA, employers may not discriminate against anyone over 40 years old when they are making decisions concerning hiring, firing, work assignments, promotions, or compensation. Employers are anyone who has at least 20 employees for each workday during at least 20 calendar weeks of the previous year. There is no requirement for the 20 calendar weeks to be consecutive.
The ADEA does not apply when there is a BFOQ or when employers use reasonable factors other than age to differentiate between employees. A BFOQ for age is one that is “reasonably necessary to the normal operation of that particular business or enterprise.” Whether something is a BFOQ is determined on a case-by-case basis and is generally used as a defense for allegations of discrimination. A common example of a BFOQ based on age is requiring pilots to retire at 62 because of the decline in performance after the age of 60.
Americans with Disabilities Act
The Americans with Disabilities Act (“ADA”) was enacted in 1990 and protects qualified people with a disability from discrimination in all aspects of employment. Employers covered by the ADA cannot discriminate against qualified people with disabilities when hiring, firing, giving work assignments or promotions, or determining compensation. In addition, covered employers cannot have various standards or requirements that are not job-related when the effect of those requirements discriminates based on a disability. An example of discrimination based on disability would be a covered employer posting a job and within that posting excluding someone based on a disability when it is not job-related. For example, a job posting for a CEO stating that the applicant has to be able to see, hear, or speak clearly when those requirements have nothing to do with the applicant’s ability to be a CEO and entirely excludes certain disabled individuals.
Employers covered by the ADA must also provide reasonable accommodations for physical and mental limitations for qualified applicants and employees who have a disability. Under the ADA, a covered employer is anyone who has at least 15 employees for each workday during at least 20 calendar weeks of the previous year. There are no requirements that the 20 calendar weeks be consecutive.
The only exception to making reasonable accommodations is if an employer can prove that the accommodation creates an undue burden or hardship on the business. Whether an accommodation creates an undue burden or hardship on a business is determined case-by-case.
Immigration Reform and Control Act
The Immigration Reform and Control Act (“IRCA”) of 1986 sought to prevent and control unauthorized immigration into the United States. To accomplish that purpose, the IRCA requires all employers to check and verify that employees are allowed to work in the United States. Additionally, IRCA prohibits employers with more than three employees from discriminating when hiring, recruiting, or firing employees based on the national origin of protected individuals or the citizenship status of lawful permanent residents. A protected individual is someone who is a citizen, national, lawfully admitted for permanent residence, or otherwise legally located in the United States. Unauthorized immigrants are not protected from the types of discrimination that are prohibited under the IRCA.
According to the most recent National Agricultural Statistics Service survey, the majority of farms, around 80%, have more than three employees. Therefore, the IRCA’s definition of an employer covers more agricultural workers than the other anti-discrimination laws discussed in this post. In order to establish that an employee can work in the United States, employers have to file I-9 forms for all employees. These I-9 forms require an employee to provide either one or two forms of identification, depending on the type of document, to establish identity and employment authorization. It would be discriminatory if an employer refused to accept any approved documents or required different documents than legally required based on the employee’s citizenship or nationality.
Violations of the laws discussed above can lead to various civil and criminal penalties, including jail time, various types of injunctive relief, and monetary fines. The primary federal equal employment opportunity laws mainly cover large agricultural operations that hire more than 15 to 20 workers, such as agricultural packing and production facilities. While federal laws may not cover a large number of agricultural employers, it is important to consider the impact of similar state laws as they might define an employer differently, and state laws could cover employers who are not covered by federal laws.
For more Labor resources, click here.
To view FLSA exemptions for agricultural workers in more detail, click here.