No One Should Have to Choose Between Their Dignity and a Paycheck

Jan 14, 2021Commentary, Equal Opportunity

Nearly all of us would agree that employers should not be allowed to refuse to hire or fire an employee because she is a woman, Hispanic, Catholic, or pregnant. But in Utah and Nevada these types of discrimination are legal. Because they are legal, many workers are forced to choose between a paycheck and maintaining their human dignity.

Legal Discrimination Is A Problem

Federal law and the laws of the states generally prohibit employment discrimination based on characteristics like race, ethnicity, religion, sex, age, and disability, but under Utah law, Nevada law, and also federal law, businesses with fewer than 15 employees are free to discriminate as they wish.

As an attorney who practices employment law, I have had to inform a number of potential clients that even though evidence of discrimination in their case is strong, I can do nothing for them because their employer has fewer than 15 employees. They typically respond, “Are you saying it’s legal for them to discriminate against me?” I reply, “Yes, it is. They’re allowed to do whatever they want and, unfortunately, there’s nothing you can do about it.” They often then say something like, “Wow, that’s crazy; the law needs to be changed.”

In Utah, about 19% of employees work for a business with 1-19 employees, equal to about 600,000 workers. In Nevada, about 86% of the state’s businesses have 0-19 employees.

Utah and Nevada Are In Poor Company

Many states have reduced the minimum threshold for businesses to be held responsible for employment discrimination. In fact, only about 12 states still have a minimum of 15, and more than half of those are southern states that have historically been hesitant to grant equal rights to all people. About 27 states have minimums between 1 and 4 employees, and about 11 have minimums between 5 and 9. Interestingly, of those 38 states, 15 are states that typically vote Republican, and 6 are states that we would call “swing” states.

We Should Protect Those Who Are Poor and Disadvantaged

No one should be passed over for a job, demoted, or fired, or otherwise suffer discrimination because of his or her religion, age, race, gender, disability, or pregnancy. No one should have to choose between leaving a job and enduring discrimination. It should be possible for everyone–not just people working for larger businesses–to earn a living and keep their human dignity.

You might think: it’s sad that some businesses discriminate, but can’t the victims of discrimination just change jobs? A job change to a better employer might be possible for some people, but workers who earn meager wages and are struggling to make ends meet find it difficult to search for new jobs and change jobs. For people living from paycheck to paycheck, changing jobs might be too risky, so they simply accept their current conditions. Regardless, it’s not a choice they should be forced to make.

Small Businesses Need Protection, Too

As a small business owner, I know how excessive laws, regulations, and taxes can burden and even decimate a small business. It’s important to protect small businesses from heavy burdens as much as possible, especially because many people who are trying to rise above poverty do so by starting their own businesses. Still, sending a message that employment discrimination is wrong and won’t be tolerated is a policy worth enacting and enforcing.

Nearly everyone understands it’s wrong to discriminate, even owners of the smallest businesses. They have no excuse for discriminating. Businesses that actually discriminate against their employees should probably not be in business, unless they change their ways.

That said, one real concern for small businesses is the threat of false accusations of discrimination that would force them to spend time and money defending themselves. False accusations do happen, so we should do our best to protect small businesses from them. There are ways to minimize the burden that could result from false accusations while also providing remedies for employees who actually suffer discrimination.

For example, the law could require a higher standard of evidence to prove discrimination, or it could require an employee to pay the attorney’s fees of the small business if the claims are found to be frivolous, i.e. without any basis. These types of policies would deter employees, and their attorneys, from alleging discrimination without strong evidence of it.

It’s time for a change. We can protect victims of actual employment discrimination while also minimizing the burden on small businesses. Those who are poor and disadvantaged deserve our protection and their dignity.

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