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The Developing Equal Protection Of American Female Employment Rights

Posted on:2011-11-20Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y J GuoFull Text:PDF
GTID:1116330332459187Subject:Legal history
Abstract/Summary:PDF Full Text Request
Historically speaking, American female employment rights went through the different historical stages from the unprotected to special protection, then to equal protection. The American females underwent the hardships in order to seek the constitution and law to protect their equal employment rights. From the American colonial times to the second half of the 19th century after the civil war, under the guidance of the concept"males and females should be treated differently and males are superior to females", the female activities were limited to the family and their most important thing were the housework instead of the job, the American female employment rights were not protected by law at all. In the first half of 20th century, the American female employment rights entered the field of legal regulation. The main characteristics of female employment rights protection during this time was the special protection of employment females by the legislation. At this time, there were"protection"legislations for women workers in many states such as the maximum working hours, the minimum wages, prohibiting the females from the night job and limiting the females working areas etc. However, in fact, such kind of"protection"legislations that were only applied to the females and not included the males exaggerated the difference between the females and the males in their bodies and emphasized the different social functions between the females and the males. These legislations were the discrimination against the females instead of protection. Since 1960s, female employment rights protection in America entered the period of equal protection.Viewed from the legislation history, the equal protection of American female employment rights began from the states. As early as the beginning of the 20th century, a few states began to make the law that prohibiting the sexual discrimination in the employment, but in the federal level, the legislation on the American female equal employment rights began from the 1960s. The Equal Pay Act of 1963 is the first federal civil legislation that prohibiting the sexual discrimination in employment in American history.In American federal legal system, the legal sources of equal protection of female employment rights can be classified into four levels. The first level is the constitution and the precedents of constitution; the second level is the federal legislation and the related precedents; the third level is the executive order and the fourth level is the federal regulation. Although the Fourteenth and the Fifth Amendment of constitution is earlier than the federal regulation and the executive order of the president, their roles in the equal protection of female rights are later than the federal regulation and the executive order of the president. It is not until 1971 did the federal supreme court make the constitution to be the important source of the equal protection of female employment rights by interpreting the Fourteenth Amendment of constitution in Reed v. Reed,404 U.S.71(1971). The federal supreme court set up the heightened standard of gender legislation classification in Craig v. Boren, 429 U.S. 190 (1976). The normative legal documents such as title VII of Civil Act, No 11246 of president's executive order, the Guidelines On Discrimination Because Of Sex issued by the Equal Employment Committee, the Uniform Guidelines On Employee Selection Procedures (1978) jointly issued by Labor Department, Ministry of Justice, the Equal Employment Committee and Administrative Affairs Committee stipulate definitely the specific requirements of prohibiting discrimination in employment, the legal liabilities and remedies of the discrimination.The major problem in the equal protection of American female employment rights is the female unequal employment opportunities. To sum up, there are two types of employment practices that cause the female unequal employment opportunities. One type of the employment practices is the refusal of hiring the female directly because of intentional discrimination against the females based on the female stereotype. The main manifestations of this type are the classification of the job according to the gender and refusing to employ the married females. Another type of employment practices is the indirect sexual discrimination. Such kind of employment policies are the neutral on the surface such as the height, weight and physical conditions. However, the policies have totally different effects upon the males and females which result in the limitation of female employment opportunities.The direct sexual discrimination in employment is prohibited by title VII of the Civil Act (1964). America adopts many specific legal measures to eliminate the direct discrimination against the females in employment. Furthermore, the test standards and the rules of evidence related to the disparate treatment established through the precedents are fully applied in the cases of sexual discrimination in employment. These standards and rules are the important legal measures to identify and eliminate the direct sexual discrimination in employment. The test standards and the rules of evidence of disparate treatment discrimination were formed in McDonnell Douglas Corp. v. Green heard by the federal supreme court in 1973. According to this case, the requirements of the disparate treatment discrimination are: (1) that the plaintiff belongs to the type protected by law; (2) that the plaintiff applied and was qualified for a job for which the employer was seeking, but he was rejected; (3) that the employer has the intentional discrimination. The burden of proof of the disparate treatment discrimination shall be shared by the plaintiff and the employer. The plaintiff shall prove that the employment conducts of the employer meet the requirements of the disparate treatment discrimination and constitute the discrimination. The employer shall defend with legal and non-discrimination excuses. The legal and non-discrimination excuses maybe are: (1) definite, legal and refusal excuses unrelated to racial, belief, gender and country of origin. (2) bona fide occupational qualification. The indirect sexual discrimination is also the prohibited employment practices in American law by the court's interpretation. The test standards and the rule of evidence of disparate impact formed by the precedents are the important legal measures to distinguish and eliminate the indirect sexual discrimination in employment. The test standards and its rule of evidence of disparate impact discrimination were put forward in Griggs v. Duke Power Co. heard by the federal supreme court in 1971, then changed several times and finally were established in the 1991 Civil Act. According to the case of Griggs and the stipulations of 1991 Civil Act, the requirements of the disparate impact discrimination are: (1) Although one specific employment policy is neutral on the surface, no matter its effect and application cause the unproportionate negative effects upon the members of the protected groups; (2) the plaintiff belongs to the type protected by law, and he was affected directly by this policy. Intention is not the necessary requirements of the disparate impact discrimination. The defense of the employer is the business necessity.Prohibiting the disparate treatment and prohibiting the disparate impact are the two main components of non-discrimination principle established in 1964 Civil Act. They are applied in the whole process from the employment advertisement before the employment to specific process of employment and the final evaluation of the employment results.The equal protection of female employment rights shall deal with the negative effects upon the female employment caused by the female special physiological phenomenon. The pregnancy is one of major problems. In US, there are two main special problems for the employment female caused by the pregnancy: one is that the pregnant female is regarded as incapacitated person and is discriminated. Another is the conflict between the protection of the fetus and the female employment rights. In solving these two problems, American law persists in the principle of non-discrimination. It prohibits the pregnancy discrimination definitely and also overrules the policies of fetus protection. American law does not treat the pregnancy and fetus protection as the special female issues. As for the issues such as the female menstrual period, pregnancy, confinement and the health problems of female, fetus and infant during their lactation period, the American law reserves these issues to be dealt with by the females themselves. The regulations in every state related to the female maternity leave and the female resuming their posts after their postpartum are the limited acceptable preferential treatments to the employment females. This shows that the realization of equality in female employment opportunities is the purpose of the equal protection of American female employment rights.How to promote the total female employment level is also the problem to be resolved in guaranteeing the female employment rights in America. The accumulated structured unequality in female employment is very difficult to correct thoroughly within a long duration by the regulations of prohibiting the discrimination which purposes are to realize the equality in employment opportunities. America carries out the affirmative action in order to promote the total female employment level. In US, there are very big disputes about whether the affirmative action should be carried out against the employment females and what kind of actions should be taken. Considering the alert against the reverse discrimination and the balances between the employment interests of two genders, the American government is very moderate when it carries out the affirmative actions against the females. The affirmative action is limited to the certain bounds.Compared the process of equal protection of American female employment rights with those of China, America adopted the legal ways at all times while China depended on equal movement between men and women from up to bottom advanced by the government and the labor and employment systems of unified allocation under the plan economy systems for a certain long period. Not until 1980s did the changes take place. Viewed from the effects, the history proves that the way of America is more reliable. Compared the current legal systems of equal protection of female employment rights in America and China, both of them have their own features. The American legislation lays special emphasis on the female employment opportunities while China's legislation lays special emphasis on the special protection of the employment females. Under the circumstance that the legal systems reflecting the equal opportunities have not yet set up, the special protection based on the difference between the males and the females is only like the"father love"concerns. Such kind of protection only strengthens the discrimination against the females and does not help the equal protection of the female employment rights. Therefore, the legal systems of realizing the female employment opportunities in equal protection of American female employment rights are worth using for references for China.
Keywords/Search Tags:Equality, Female Employment Rights, Disparate Treatment, Disparate Impact, Affirmative Action, America
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