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Posted on March 11th, 2013, by

In the United States there is special anti-discrimination legislation, developed both at the federal (more than 20 regulations), and state levels. Though normative acts of the United States do not provide a clear definition of discrimination, but it is worked out in detail at the level of scientific doctrine and jurisprudence. The most common definition of discrimination in the doctrine of the U.S. is the unequal treatment of individuals, based on some criterion, such as race, sex, age. This definition is divided in the science of labor law in the United States four components: the tendency to discriminate against, a clear negative treatment, systematic verse treatment; network effect. On the positive side in the interpretation of “discrimination”ť in the U.S. legislation can be marked a closed list of grounds for discrimination at the federal and state levels. This gives the definition of discrimination and promotes clarity of an operating time of jurisprudence. (Donohue, 2003)
Speaking about discrimination in labor relations, it should be noted that employers in the U.S. bear responsibility both for intentional and unintentional discrimination for. Intentional discrimination, or «disparate treatment», implies that the employer intentionally treats worse someone of workers because of his race, color, religion, nationality, age, etc. Unintentional discrimination, or «disparate impact», implies that even formally neutral actions of employer can have negative effects of a particular group protected by law. In U.S. labor legislation there is also s third form of discrimination “refusal to accommodate”ť, which involves an act of discrimination against one of two workers, which belong to a category protected by law, for example, when choosing an employer between African American employee and female employee. Both categories are included as protected by U.S. legislation.

But in practice there are cases of exactly this form of discrimination: the employer is free to choose the worker, as long as he was a member of one of the protected categories, in this case is not a violation of the law. (Donohue, 2003)

A disadvantage of the U.S. anti-discrimination legislation, in our opinion, is the sphere of dissemination of these laws. Federal laws are applied primarily to employers with at least 15 employees, so in fact, workers in small businesses are not legally protected from discrimination. (Donohue, 2003)

Pregnancy discrimination
In a growing number of countries are taking measures to eliminate discrimination against women in pregnancy. It should be guided by the principle that pregnant women must be registered for employment and treated equally with other men and other women, in particular, they must not be prevented the opportunity of career growth only because of pregnancy. Several countries have a clear prohibition of discrimination in early pregnancy (for example, in Australia, Italy, USA, Venezuela). Other countries define sex discrimination to the introduction of discrimination in early pregnancy or failure to provide leave for pregnancy and childbirth (in Finland).

In some countries, the law has clear requirements that illustrate examples of discrimination in early pregnancy. For example, in the Russian Federation, the employer may not refuse to hire a woman because she is pregnant; if a pregnant woman is not hired, the employer must provide written reasons for that. In France, the employer may not refuse to hire a woman because of pregnancy, to terminate the contract during the probationary period or to order her to transfer to another job. Also, it is illegal for the employer to try ask about pregnancy while job interview, or to collect such information.

While studying discrimination legislation in the USA, it is necessary to point the specific situation of pregnant women in the U.S labor market. Gender-neutral U.S. labor legislation puts pregnant women in rather vulnerable situation, in comparison with other workers. Congress enacted the Pregnancy Discrimination Act (PDA in 1978 to add pregnancy as a protected status under Title VII of the Civil Rights Act of 1964. (Findley et al., 2010)

The Act “On the discrimination of pregnancy” does not provide any guarantees for pregnant employees. In accordance with it, employers must treat pregnant women as anyone with a temporary disability: “Disabilities caused or contributed to by pregnancy, childbirth, or related medical conditions, for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions, under any health or disability insurance or sick leave plan available in connection with employment. Written or unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or disability insurance or sick leave plan, formal or informal, shall be applied to disability due to pregnancy, childbirth or related medical conditions on the same terms and conditions as they are applied to other disabilities.”ť (

This means that if the employer normally pays for sick leave, it should be extended to the pregnant woman; if the employer requires the employee’s sick documentary evidence of inability to work, then it may be required from the pregnant woman. That is, the Act does not provide for pregnant women any specific guarantees, that would distinguish pregnancy from simple diseases, and would give the pregnant woman any kind of privilege. Also The Act does not extend to all employers, but only to those who have more than 15 employees.

The PDA law is the basis for claims in U.S. courts: claims by employees who are pregnant, are trying to become pregnant, have miscarriages, have or consider having abortions, give birth, and have medical conditions relating to pregnancy and birth. (Findley et al., 2010)

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