Historical Analysis
There have been many changes in legislation concerning equal employment opportunities. These are mostly an attempt to protect minorities from discrimination in the workplace. In this paper we will examine some of the laws that have been put in place, their purpose, origins and limitations. The United States of America is a country in which there exists, in theory, an environment where people are free to own their own businesses without government intervention. There are however, various exceptions where the government steps in. One way in particular is with regards to the protection of minority groups.
One of the barriers against employee discrimination came in the form of the Civil Rights Act of 1964, which prohibited employment discrimination because of race, color, religion, sex, or national origin. One of the earliest movements towards the advancement of this cause occurred in 1962, when a man named Cesar Chaves decided to organize the migrant laborers of the California grape farms. Most, though not all of the farm workers he rallied, including himself, were Hispanics. These families had to subsist on average yearly salaries of about $2000 per year, barely enough to survive. It took this ragtag group of migrant worker about three years to make themselves heard, and in 1965 they finally went on strike in a movement known as La Causa . This nonviolent strike lasted three years, and it culminated in the creation of the Farm Workers Union.
Around this same time sanitation workers in Tennessee went on strike to protest the unfair treatment they felt they were receiving. They felt they were being mistreated because during a period of bad weather, a group of black workers was sent home without pay, while white workers were permitted to continue working and receiving compensation. Despite the efforts of the striking workers, no resolution was reached. This case was to become an enormously famous situation, world renown, when the revered Dr. Martin Luther King, Jr., arriving in Memphis to lead a march on the sanitation worker’s behalf, was assassinated at his motel.
Years later, the Civil Rights Division in California filed a suit against the San Diego Fire Department seeking resolution against employment discrimination against women. These efforts of the Civil Rights Division resulted in opening doors for women in fields traditionally held by men, such as police officer and correctional officer .
It is greatly on the part of these motivated groups of people that much of the legislation against discrimination has been enacted. In charge of fighting this sort of discrimination against minorities is the Department of Justice. The Equal Employment Opportunities Commission (EEOC) is in charge of regulating the work environment. The EEOC is responsible for enforcing the laws that have been passed into effect which apply both to private employers as well as the Federal Government. Various laws have been put into effect to prevent prejudicial discrimination to minorities including areas such as race, religion, disability, etc. But is this freedom, or merely oppression of the majority? Do private businesses really have the obligation to hire people merely because they belong to a minority group? The EEOC says they do, but some researchers in the field disagree.
Equality under Employment Discrimination Acts
Law professor John J. Donohue III from the University of Michigan Law School argues that over time, the development of employment discrimination law has come out of changing conceptions of equality in the U.S. He argues that there are three concepts of equality, and the way in which a worker’s labor is valued, which are the catalysts of changes in U.S. employment discrimination law :
·A worker’s wage should equal the value of the individual’s labor as determined by the market.
·Workers’ value depends on discrimination against the group.
·A worker’s price depends as much on the market’s attitudes about the worker (or worker’s group) as the work itself.
“So, rather than a worker’s wage being determined by his or her productivity, the wage is also contingent on such things as employers’ and other employees’ attitudes about race, gender, age, religion, and so on. In efficient capital markets the price of an asset will equal its value, even in the face of bias or discriminatory attitudes. Capital markets are more thoroughly efficient than labor markets. Because of this efficiency a capital market is able to set the price of stock at the intrinsic value of that stock. Because of labor market inefficiencies, a worker’s productivity (or intrinsic value) and a worker’s price (wage) are often not equal. This conception moves beyond the protections of a perfectly competitive capital market. Constructed equality demands that employers pay all employees equally, regardless of the true value (to the market) of their differing productivity.”
According to Donohue, the original goal of these employment laws was basically to ensure that the protected groups maintain equality with non-protected groups. However, this special treatment of minorities is contrary to the premises of a capital market, which is how a labor market should operate (pricing is depended on supply vs. demand.) As with all capital markets, government intervention means lengthy processes and legal red tape which results in high costs and inefficiency.
“While U.S. conceptions of equality have developed further than intrinsic equality, the logic of market processes staunchly resists the institution of constructed equality. While the realization of intrinsic equality is at least in theory attainable, argues Donohue, the movement of U.S. society toward a goal of constructed equality leads to an unclear objective. Additionally, this objective can be attained only through the political conflict of multiple special interests all claiming a right to preferential treatment.”
Historical Timeline of American Civil Rights Laws
1776 – Declaration of Independence “We hold these truths to be self-evident, that all men are created equal, that among these are Life, Liberty, and the pursuit of happiness.”
1865 – 13th Constitutional Amendment abolished slavery, but did not give blacks equality.
1866 – Civil Rights Act “all persons shall have the same rights…to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws…”
1868 – 14th Constitutional Amendment “All persons born or naturalized in the US…are citizens…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person…the equal protection of the laws.”
1920 – 19th Amendment “The rights of citizens…to vote shall not be denied or abridged…on account of sex.”
1963 – Equal Pay Act prohibits sex-based pay differentials on jobs.
1964 – Civil Rights Act Title VII prohibits employment discrimination based on race, sex, national origin, or religion. Title VI prohibits public access discrimination, leading to school desegregation. Title VIII is the original “federal fair housing law,” later amended in 1988.
1965 – Executive Order 11246 affirmative action requirements of government contractors and subcontractors.
1967 – ADEA prohibits age discrimination for 40-65 year olds, amended in 1986 to remove the 65-year-old age cap.
1968 – Architectural Barriers Act requires accessibility for disabled in buildings and facilities financed with federal funds.
1973 — 504 of the Rehab Act bars federal contractors or subcontractors from employment discrimination on the basis of disability.
1988 — Fair Housing Amendments Act disabled access required for multi-family housing intended for first occupancy after March 13, 1991.
1989 – Air Carriers Access Act disabled access required in construction of terminal facilities owned or operated by an air carrier.
1990 – Americans with Disabilities Act Title I prohibits disability discrimination by employers. Titles II and III require disability access in all places of public accommodation and business for first occupancy after January 26, 1993 or for occupancy for new alterations, and all state and local government facilities, after January 26, 1992.
1991 – Civil Rights Act adds provisions to Title VII protections, including right to jury trial.
Americans with Disabilities Act
The Americans with Disabilities Act (ADA) provides for equal employment opportunities for persons with various degrees of disabilities. Under the ADA, it is unlawful for employers to discriminate against a qualified individual with disabilities. This act even prevents discrimination against a non-disabled individual on the grounds of his/her association with a disabled person, as long as the individual can perform, with or without reasonable accommodations, the required functions of their job. Reasonable accommodation means that an employer must accommodate a disabled individual’s needs as long as this does not pose undue hardship upon the employer. This legislation applies to all companies with 15 or more employees .
Those that are disabled in this country find themselves in a situation that many are not subjected to. They were not considered a unified group. Disabilities vary greatly from person to person, so this may prevent closeness among the groups. The lack of continuity of the problem led to many barriers for the disabled community as a whole. Their power and came in unification. As a focus group, those that were disabled found their strength in numbers, and made a significant impact on business. It wasn’t until the disabled community focused their attentions to the government as a group, or many groups, that they received aid in the form of social reforms and the passing of laws. Their coming into the lime light was a result of social reforms of the post World War II era.
“Although the disability rights movement developed in the tradition of 1960′s social movements, Disability as a class did not share the same cohesive forces manifest with race and gender.”
The differences among them doesn’t allow for cohesion of their collective strengths. The same shift of focus occurred in the early stages of the ADEA to more attractive topics of race and sexual discrimination. Laws in this country are made for the protection of its inhabitants. It is the way our system is designed. A situation arises and must have a stifling effect on a majority or a minority group for social reform top be enacted. This is a trend that has and will remain prevalent in this society. The situation is the exclusion of this group of individuals whom only seek an equal opportunity to perform their rights as citizens of this country. It is difficult however, when dealing with a group of individuals that is by definition or category, disabled. So should a separate law be enacted? It is not clear as to whether using a separate law might, “ironically reinforce discrimination by underscoring the separateness of people with disabilities.”
The valid argument being that why enact a law that might only potentially isolate this group of individuals as unequal. No matter the situation however, in this country, making an employment decision without having consideration for those that are disabled is just wrong on many levels. If a CEO of a large corporation falls victim to paralysis, but still retains full use of all mental abilities, is he not still a valuable asset to the corporation? As for those that actively seek employment and are disabled, they no longer can be discriminated against for their disability per the Americans with Disabilities Act.
Growing Success and Barriers
With power comes responsibility. The disabled community was empowered when the ADA took effect. This doesn’t mean that they went out suing everybody. However the battles fought in court that gained them federal funding apparently become concurrent with the growing sentiment that, to add these changes would be too costly.
“The need for information and technical assistance continues to grow, outstripping federal and state resources.”
“The disability community has generally, in these early days of the ADA, taken an ADA implementation strategy of educate and negotiate, and litigate as a last resort.”
The movement the ADA sparked faced opposition just as every other reform that focuses on a specific group. So wouldn’t it be found ironic that the collectivism they achieved as a group isolated them as a burden to those in opposition? The opposition was faced as the initial success was also being felt. The most relevant point is that the movement was justified by the freedoms guaranteed in the Bill of Rights. The United States government found itself compelled to do what was morally and contractually right.
Cost and Effect on Business
The bottom line is just that. When the smoke clears, and the day is at an end, many factors incorporate into the final success of a business. In the capitalist society which embraces and grants the freedoms given to such groups by reforms such as the ADA, the ultimate benefit is received when it is determined that it helped the business. Did it increase moral? Did it in increase productivity? Basically did it increase market share plus the profitability of the business?
“A recent study based on the experience of Sears, Roebuck, and Company in making reasonable accommodations reported that the average accommodation cost the company $121.00.”
“The study also reported the 69% of accommodations cost nothing, 28% cost less than $1000.00, and only 3% exceeded $1000.00.”
The statement that reasonable accommodations don’t require great expenditures is relevant in more ways than one. The accommodation of those with needs based reforms, such as the elderly, disabled, and those whom are victim of racism and sexism have a greater interest in change than that of percent increases and turnover margins.
Age Discrimination in Employment Act
The Age Discrimination in Employment Act (ADEA) is the primary federal statute, which prevents employers from discrimination against individuals on the basis of age. This act covers people who are 40 years of age or older, unless there is a bona fide occupational qualification, in other words, reasonably necessary for the business to operate normally. The regulations recognize that “no precise and unequivocal determination can be made as to the scope of the phrase ‘differentiation based on reasonable factors other than age.’ Whether such differentiations exist must be decided on the basis of all the particular facts and circumstances surrounding each individual situation.” In the case of the ADEA, companies must have 20 or more employees in order to be bound by this legislation.
The discussion of discrimination on the basis of age is based on the premise that as age advances, progress and productivity decline. The United States government has prided itself on the virtue of equality. In doing so, it has enacted its powers over this stigma to ensure that discriminatory practices on the basis of age do not plague American business firms. The basic argument over the issue rests on an individual with the ability to perform but has been neglected the opportunity to advance or participate in the workforce. Rather than get enraptured in a heated social commentary, the issues discussed here will focus on why the need arose for enforcement and regulation by analyzing the advancing needs for the latter over a time-frame from proposal to present, the effects it has had on current business practices and law-making bodies, and the possibilities of adjustments that may lie in future laws if any.
“More than eighty million Americans now living were born during the two decades following World War II.”
The need for legislation arose as an issue of equality and opportunity, but what else? The nature of protection rests in the need for security, specifically, security from persecution when advancing in age. The generation that rose from the ashes of post World-War II raged with social reform and added to the growing nation wide sentiment in regards to progress and job security in the latter part of life.
“Until the 1950′s, age bias occurring in the workplace was not a matter addressed by the laws of most states, and it was not until 1967 that Congress that ageism was outdated and irreconcilable with civilized society and American cultural values.”
In passing The Age Discrimination in Employment Act of 1967, a means was found to end discrimination on the basis of age in the workplace. It provided assistance to those who needed it. Laws however, do not remove ideological community blinders. The belief that those above the age of forty cannot compete (which is important because that’s what that the workplace of today has become and has always been), rests in the minds of many business managers who engage in physical or manual labor. The importance of those above the age of forty and their irreplaceable experience has long been a virtue upheld and applauded by big business. Baby boomers after all, started what the current version of what business community knows as big business. It’s the fast paced world of movers and shakers. Why would they in any way desire to stagnate their progress as the new generation of workers seeks advancement in a work environment they designed and implemented?
“The oldest baby-boomers – those who turned fifty in 1996- will be fifty-five in 2001 and sixty-five in 2011.”
Relevance to Current Legal and Business Environments
Suits filed and won against employers that have engaged in legal wrong doing are the trophies upheld by the group that enacted the laws safeguarding those above the age of forty. After all, what’s the use of enacting a law if it’s not to be enforced?
“Between 1970 and 1989, the number of filings of employment discrimination cases in the federal courts increased almost 2200 percent, while all other types of cases rose 125 percent.”
The need for this excess in litigation has had significant impacts on two major groups, lawyers and businesses. An increase in the need for legal assistance can be inferred from such a large increase cases filed, but it only signifies the trend in society to seek legal action against wrongdoing. Companies will find it very costly to engage in ageism, and in the spirit of the almighty dollar, will be more than willing to adhere to governmental regulations. Gender aside, companies cannot afford to engage in discriminatory practices not only for economic reasons, but because they have advanced in the mentality that denying the opportunity to anyone, would be denying their respective business the opportunity to hire or advance a productive individual. The productive individual lies in the heart of the issue and is the one to gain from this legislation. The natural human tendency to believe that productivity decreases as age increases is what’s called into question, and it is that question that strikes the need for security in the workplace.
“Currently in this country nearly 20 percent of male college graduates over sixty-five continue to work, while less than 10 percent of workers that age without a high-school diploma remain in the workforce.”
“Similarly, 49 percent of female workers in age group fifty-five to sixty-four were still working in 1995,and this figure is expected to grow to 56 percent by 2005″
Barriers, Possible Future Trends, and Recommendations
As the initial period after the enactment of a law passes, its strength, and the fervor that gathered the strong emotions of public opinion behind it slowly die out, and so does the leniency of the courts that uphold that law. What happens is that in the public eye, other matters derive a sense of urgency above that of the previous movement that was passed. Not to say that it’s aftermath is not felt by and upheld across the nation’s borders, but rather that public opinion sways back and forth on unresolved matters. The foreground for upholding discriminatory practices is not very clear, and does leave room for speculation, so its passing into law was felt by many as its passing to the backseat in favor of other reforms.
“Despite Congress’s declared interest in banning age discrimination from the workplace, some courts appear less than enthusiastic about enforcing the provisions of the ADEA.”
“The nation’s commitment to end age discrimination is not as strong as its commitments to other public policy ends, such as race, and sex discrimination.”
The focus of litigation tends to flow in the direction of occurrence. If it’s happening in one area more than another, the public eye also shifts in that direction because that’s what they feel is happening to the greater majority. Since the passing of the ADEA, the focus of age has shifted to the skilled laborer.
Equal Pay Act of 1963
The Equal Pay Act of 1963, EPA for short, is an employment discrimination deterrent of very limited scope. It was passed as an amendment to the Fair Labor Standards Act, and it is very similar to that act. The EPA protects against sexual discrimination regarding wages only, and only in regards to executives, administrators and professional employees. The vast majority of EPA cases are filed by women, even though the EPA protects both men’s and women’s rights. The EPA is enforced by the Equal Employment Opportunities Commission, and not by the Labor Department. The EPA differs from other discrimination act, because it does not require plaintiffs to submit claims to the Equal Employment Opportunities Commission or any other state agency before filing a lawsuit.
To recover damages from pay discrimination, the person must show that he/she performed the equal amount of work as the other employees for less pay. According to Mr. Bruce D. Fisher and Michael J. Phillips the equality of the work is based on four factors (1) equal effort, (2) equal skill, (3) equal responsibility, (4) similar working conditions. Effort is defined as the amount of physical and/or mental labor required for the job. Skills are explained as the abilities required to perform the tasks, these include experience, training, education and the ability to perform the job. Responsibility refers to the accountability of the job, or how important the decision made by that particular position. Mr. Fisher and Mr. Phillips use the example of, bank employees whose loan decisions must be reviewed by a superior when the loan exceeds $10,000 probably are not equal to bank employees who can approve loans of up to $50,000 at their own discretion , to define Equal Responsibility. Working conditions is the physical area around the employees; this includes the hazards of the job, the environmental factors such as heat, cold, fumes, radiation and such. Interestingly enough the environments of the positions being compared only have to be similar, not identical.
Rarely do the courts consider these factors separately, as was shown in the case of Fowler v. Land Management Group, Inc. . The Land Management Group, Inc. hired Barbara Fowler in 1987 as a project manager; her starting salary was $32,000 a year. Fowler worked for the company for three years, attaining the position of Vice?President of Building Development. When she was laid off her salary was $60,000 a year, the other Vice?President was being paid $73,500. Fowler sued the company under the Equal Pay Act in a federal district court. Land Management Group, Inc. stated that the other Vice?President, Bruce Reese, had certain professional qualifications that Fowler did not possess, those being that Reese had an engineering and surveyor’s license. They also stated that Reese had greater practical experience and that he generated greater profits than Fowler. The Land Management Group, Inc. claimed that Reese was more vital to the company than Fowler. The jury did not believe that there was an overwhelming difference between Fowler and Reese’s positions. The court gave Land Management Group, Inc. a motion for judgment notwithstanding, even though the jury ruled in Fowler’s favor. Fowler then appealed this ruling, and the appellate court agreed with the previous jury’s decision. Thus Fowler won the appeal.
Under the Equal Pay Act, the plaintiff has to establish that his/her employer pays him/her less that their counterpart, for the exact same level of work. The employer then must prove that this wage difference was not based on sex, but on some other relevant factor. These factors may include seniority, level of output, quality of output, or any other factor that is not based on sex. The employer can protect the company and himself by using organized and precise criteria for evaluating each of their employees.
Sexual Discrimination
Sex discrimination is defined as treating an employee or employees differently just because of their gender. Whether or not this discrimination affects the “terms or conditions of employment”, it is illegal. The “terms or conditions of employment” mean just about anything relating to someone’s job: their position, pay, title, hours, vacations, most everything is a term or condition of employment. Whether or not a person is hired is also considered a term or condition of employment. The provisions against sexual discrimination were added to the Civil Rights Act of 1964 as a last minute amendment to Title VII, because of this there very little legislative interpretation history.
There are two types of sexual discrimination: Disparate Treatment and Disparate Impact. Disparate treatment is when a person is treated differently based solely on their gender, which is straight out discrimination. Desperate impact is when one or more company policies exclude certain people from qualifying for promotions or from obtaining the position. An example of this treatment arose often in city fire department, where strength was required and applicants were tested. These strength requirements were set too high for women to qualify, thus excluding otherwise qualified women from being firefighters. Victims of sexual discriminations must file a charge with the Equal Employment Opportunity Commission before any private lawsuits can be filed, it also must be filed 180 days from the alleged violation. Sexual discrimination is composed of several related topics: Sexual stereotyping, Pregnancy discrimination and finally Sexual harassment.
Sexual Stereotyping
Sexual Stereotyping is when an employer’s behavior discriminates against a gender either male or female. An example of this is when an employer assumes that all women will act just like the “female stereotype”, or if he requires all female employees to behave in such away. The employer may also violate this section of Title VII if he denies a promotion based on this stereotyping. According to the article Empowering Women in Business by the Feminist Majority Foundation:
“Many women have been discouraged from “going for the top” by a set of myths suggesting women are not suited for top management and that any problems are being solved gradually. These myths work to keep women “in their place” and to justify the lack of progress for women. Worse yet, these myths often place blame on women rather than on sex discrimination.”
These myths include that women will have conflicts between their family and the business and that female executives will cost the company more than male executives. These myths and stereotypes come from outdated ideas of gender, ideas that originated in the 1920s and 1930s, and have no place in Twentieth century business.
Pregnancy Discrimination
Pregnancy discrimination is when a woman is fired or refused a job based solely on her pregnancy. The Pregnancy Discrimination Act amended Title VII, and made it illegal to discriminate based upon pregnancy, childbirth, or any other related medical conditions. The act also made companies treat pregnancy and other related conditions like any other affliction, which would affect an employee’s ability to work, such as the flu. According to the Equal Employment Opportunity Commission’s web site , an employer cannot refuse to hire a woman because of her pregnancy as long as she is able to perform the major functions of her job. It also states that: If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same way as any other temporarily disabled employee. This means that policies regarding a female employee’s sick leave, disability insurance and health insurance must treat her pregnancy like any other affliction. This act became effective in 1978.
Sexual Harassment
The Equal Employment Opportunity Commission defines sexual harassment as: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment . Mr. Fisher and Mr. Phillips claim that there are two types of sexual harassment: Quid pro quo sexual harassment and Work environment sexual harassment.
Quid pro quo sexual harassment happens when an employer suggests to an employee a link between sexual favors and consequences to their job. This connection may be implied or stated. These consequences could be termination, promotion, raises, or better evaluations. For sexual harassment to occur there must be some tangible effect on the employee’s job, such as being fired. Many courts require the plaintiff to show proof that the plaintiff’s job was negatively affected. This conduct is mostly done by people who need to feel power over someone else, because they probably feel inadequate in some other respect. If a supervisor’s sexual advance is rejected, and nothing happens to the employee or her job, it is not considered sexual harassment. This harassment can come from numerous sources: a supervisor, an agent of the employer, a supervisor in another area, a coworker, or a non?employee. Sexual harassment is not limited to just the victim, as was the case in EEOC v. Tanimura & Antle , one of the largest lettuce growers/distributors in the United States.
The EEOC alleged that a production manager at Tanimura & Antle subjected a Blanca Alfaro, female employee, to quid pro quo sexual harassment. The EEOC alleged that Ms. Alfaro was then subjected to hostile work environment conditions, which included constant unwelcome sexual advances by that production manager and another management employee. It was further alleged that Ms. Alfaro was discharged in retaliation shortly after she complained about the unwelcome advances. The EEOC also alleged that other workers were subjected to similar types of harassment by managerial and supervisory personnel and were retaliated against for complaining about the repeated harassment. The company’s retaliations included the creation of a hostile work environments and discharging some of the employees. The EEOC also alleged that Tanimura & Antle unlawfully retaliated against Elias Aragon, a male employee, when he complained about the harassment of Ms. Alfaro. Mr. Elias alleged that Tanimura & Antle’s retaliation included verbal abuse and suspension without cause, until he was ultimately discharged. The case was settled for a $1,855,000 voluntary settlement; this settlement through a Consent Decree avoids further protracted litigation by the EEOC. It was approved by US District Court Judge James Ware in San Jose, California. The behavior against Mr. Elias just shows how far some managers will go to protect themselves, and why filing with the EEOC quickly is such a good idea.
Work environment sexual harassment is when a group, or individual, creates an environment that is hostile or intimidating in the work place. This type of harassment must be severe and/ or pervasive for the company to be liable. Examples of this would be a supervisor bombarding a female employee with sexual proposition, or touching. Another example this type of sexual harassment would be co-workers who constantly bombard a female coworker to raunchy jokes, ass grabbing, or any other general abuse. This type of harassment comes about even if the employee is treated fairly when it comes to payment, promotion or other benefits. The most important element is that the behavior must be unwelcome, meaning the employee cannot take part in or instigate the behavior. This means that the female employee cannot tell a “dirty” joke to her coworkers, and then turn around an file for sexual harassment when her other coworkers join in and tell raunchier jokes. Hostile work environment is not limited to just jokes, comments, or physical touching, it can also be printed materials or writing on the walls. This was proven when in 1998 the EEOC charged Foster Wheeler Constructors Inc. with racial and sexual discrimination in Chicago . The charges arose from complaints EEOC received regarding racial and sexual harassment at a Foster Wheeler construction project in Robbins, Illinois. This harassment came in the form of racist and sexist graffiti in portable toilets at the Robbins site. Foster Wheeler Constructors, Inc. settled the case by Consent Decree and had to pay $1.3 million to over one hundred employees.
This case was important because according to Gregory Gochanour, the EEOC Trial Attorney in Chicago responsible for the government litigation, “This case,” Gochanour said, “ought to serve as a lesson to the construction industry at large. Racial and sexual harassment, including racial and sexual graffiti, is no more acceptable at construction sites than at other places of business. It’s illegal, and construction industry employers who permit it may be looking at costly litigation.” This case was vital because challenged a problem in the construction industry, harassment in the form of graffiti. It expanded Work Environment sexual harassment to include graffiti, and probably any other written material found in the work place.
Sexual harassment, of any type, is not limited to opposite sex, it can also include same sex, as the decision in Oncale v Sundowner Offshore Services Inc. [U.S. Supreme court 523 US 75(1998)] proved. Joseph Oncale worked for Sundowner Offshore Services on a Chevron oil-drilling platform in the Gulf of Mexico. On several occasions certain members of crew, in front of other crewmembers, subjected Mr. Oncale to sexually related and humiliating conduct. He was even threatened with rape and was physically assaulted. Oncale filed complaints with his superiors at Sundowner, who took not action to alleviate the situation. When Mr. Oncale eventually quit his job, he asked that his pink slip show the reasons for his departure. Oncale sued Sundowner in federal district court, for alleged sexual harassment. The district court said that because he was male, he had no cause of action under Title VII. Oncale appealed this decision to the US Supreme court, which found that same?sex sexual harassment is protected under Title VII.
Title VII of the Civil Rights Act of 1964
Title VII of the 1964 civil rights act may be viewed as the single “most important federal employment discrimination statue” Enacted in a period vast discriminations both in and outside of the workplace, this act proved to have a profound affect on this country and its citizens. Title VII applies to and covers all private and public employers, state and municipal governments, employment agencies, worker unions, and educational institutions with at least 15 employees or more. It protects against discrimination on the basis of race, religion, national origin, and sex in all aspects of employment. This includes hiring or firing employees; assigning, classifying, or compensating employees; transferring, promoting, layoff or recall of employees; job advertisements; recruiting and testing of employees; use of company facilities by employees, training employees, fringe benefits, payment of employees; retirement plans and disability leaves; and other terms and conditions for employees.
“Discriminatory practices under these laws also include: harassment on the basis of race, color, religion, sex, national origin, disability, or age; retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices; employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities; and denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.”
Certain groups are excluded from Title VII coverage. Groups such as Indian tribes are excluded by the Indian sovereignty immunity, which covers all corporations where board is represented by at least two tribal leaders. Legitimate tax-exempt groups are except from the Title VII provision well. For example an all men’s not-for-profit group may not be required to allow women into their association under Title VII as long as there are no business transactions taking place. Religious educational institutions are allowed under Title VII to discriminate based on religion since it is the basis of their institution. Similarly, entertainment purpose gathering can also discriminate by height, age, appearance, sex, and so on, based on the fact that it is the basis for their gathering. The question is where one draws the line between specific institutions that are covered by Title VII and others, which may get away with discrimination claming exclusion from coverage.
Once one is clear on who is covered under the Title VII statue and whom it protects, there is a set procedure that must be followed if there is a violation of the statue. For instance “parties alleging a violation cannot simply sue their employer at any time desired.” Generally, the complaint must be presented to the Equal Employment Opportunity Commission (EEOC) in order for the dispute to be settled. The EEOC in turn deems what is necessary to resolve the matter, and may file suit on behalf on the complainant. If the settlement is not within satisfaction of the complainant then the EEOC eventually issues a right to sue letter allowing the complainants to sue on their own behalf.
There is also a strict statue of limitations in regards to violations under Title VII. Violations must be charged no later than 180 days of the incident in order for the claim to be legitimate. These strict time frames and procedures, by which one must file a violation, may arguably constitute a violation of civil rights on its own. Victims that may not be aware of such procedures or time restriction, may be excluded form any remedies they may rightly deserve. In addition certain victims may opt not to take the matter to the agency because of fear or ignorance, and rather deal with the mater individually also disqualifying them from due remedies. Although such procedural constraints may appear to be barriers for victims, they do in fact ensure the exclusion of frivolous claims and promote integrity.
A successful claim to a Title VII violation does not in itself entail a violation. In order for there to be a violation, the burden of proof lies on the complainant or plaintiff, and the agency (usually EEOC) which is filing suite. The plaintiff must prove that the employer’s decision on the subject was based on discriminatory reasons outlawed by Title VII. Such proof is not easy to come by since there is usually little to no evidence showing if that employers did in fact act in a discriminatory manner. As result two different methods have been established to prove violations of the statue, Disparate Treatment and Desperate Impact.
The Disparate Treatment theory is used when a single person or small group is claiming a violation and is usually used to describe intentional discrimination. There are three stages this theory encompasses in order to prove a violation. First there must be an establishment of a prima facie case. “A case strong enough to require some rebuttal by the defendant.” In order for a claim to be considered a prima facie case the following must be proven: Plaintiff must be a part of the protected class under Title VII; plaintiff applied and was qualified for the opening they applied for; plaintiff was denied the job; institution continued to search for applicants after plaintiff was denied.
If the plaintiff successfully proves a prima facie case, the burden of proof switches over to the defendant’s party. The defendant must now prove that a legitimate hiring decision was made without any discriminatory intent; if they fail to prove a legitimate defense they automatically loose and award is granted to the plaintiff. However, if the defendant successfully shows the court that the plaintiff was turned down because they did not fit the occupational qualifications, the complainant has one final opportunity to show “the employers given reasons is only a pretext and that discriminatory intent actually motivated the employers decision.”
Disparate Impact (adverse impact) theory is used in cases involving a large number of complainants, usually as a result as unintended discriminatory acts based on qualification tests. First the plaintiff must show that the tests or practices being challenged have an adverse effect on one of the protected classes of Title VII. Such practices may include educational requirements, strength requirements, and height or weight restrictions. Once the plaintiffs prove this adverse effect, the employer must prove that the practice is not only job related, but also a business necessity. If the employer is successful in proving a business necessity toward its requirements, the plaintiffs have one last chance to try to amend the practice in order for it to be more favorable to a specific protected class.
One such example would be the previously mentioned case in which a female claimed a sexual discrimination violation against the New York City Fire Department. The NYFD argued that it did not allow women into the force because of the excruciating conditions the fire fighters were exposed too, claiming a defense of business necessity. The United States Supreme Court ruled in favor of the women stating that physical qualification tests rather than gender should be the basis for recruitment. In addition they lowered certain weight lifting type exercises to 150 lbs form the previous 200 lb requirement. One argument to this theory could be the issue of effectiveness vs. fairness. Lowering the limit to 150 lbs certainly promotes fairness by giving women a chance to be recruited but what does it do to the effectiveness of the NYFD. Does this suggest that the life of a victim that weighs over the specified 150 lbs could be compromised for the exchange of equal employment rights? The basis of the courts decisions was that the average weight of an adult was 150 lbs so it was irrational for the NYFD to test for anything above that weight.
It is clear to see the multitude of arguments that can be derived from such ambiguous issues such as employment discrimination. Although the previous two theories of thought are the leading methods of proving a violation of Title VII, it is evident that proving such violations could be much easier said than done. “Even if a violation is proven, an employer still emerges victorious if it can establish one of Title VI various defenses which basically break up into three groups.” The first of such defenses is referred to as the Bona Fide Occupational Qualification (BFOQ), also know as Business necessity. This defense protects the employers from liability if they can prove that the discriminatory act in question was based on a qualification needed in order for the organization to conduct business. This defense is common within organizations in the entertainment industry, which are granted permission to discriminate based on the assumption that such decisions may be critical to their success.
The BFOQ, however, does not apply in cases of racial discrimination. One such example was a case concerning a male server and the Hooters restaurant chain. The server claimed a violation of Title VII on the grounds that Hooters war discriminating against him for being a male. Hooters was able to prevail in this case claiming that having only female servers was a business necessity for their organization and that altering this qualification would seriously jeopardize their business. Another such example would be “a women’s clothing boutique hiring only female attendants if part of the attendant’s job is assisting clients into the dressing room, or the FAA imposing age limits for its airline pilots.”
The second defense, which exempts employers from Title VII, is the Seniority System. This system allows employees that have been with the company for long periods of time first consideration for promotions. This system is legitimate as long as it is used equally among all employees and was not established with discriminatory intent. Lastly the Various Merit Defense may also be used to escape liability from discrimination. This allows employers to discriminate based solely on a “bono fide merit system, which measure earnings by quality and quantity”.
Given the multitude of complications within filing, charging, convicting, and collecting on a Title VII violation, it is no wonder why there is such a wide range of remedies available to these victims. Most common remedies for these violations are compensatory damages which include “back pay, hiring, promotion, reinstatement, front pay, reasonable accommodation, attorneys’ fees, expert witness fees, court costs, or other actions that will make an individual ‘whole’ (in the condition s/he would have been but for the discrimination).” The victim may also attach punitive damages if it can proove an intentional infliction of emotional distress. “Punitive damages also may be available if an employer acted with malice or reckless indifference. These damages are not available against the federal, state or local governments .” These types of awards are isued as punishment towards the guilty party usually resulting in larger sums of money. “The sum of the plaintiffs compensatory and punitive damages may not exceed certain ammounts as stated by the staute, wich vary depending on the size of the employer”.
This may be of little or no consequence given that most employers facing such claims are from large corporations, allowing a substantial award to be granted. This may bring up a question of ethics concerning the alterior motives of an individual in search of these large awards. The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case. “Title VII may also give courts discretion to formulate equitable remedies apprpriate to the violation.”
After defining Title VII under the 1964 Civil Rights Act , examining its coverage, procedures, exemptions, and understanding what type of remedies are available to a victim of a violation; it is very important to take a closer look at the protective classes which are included in this statute. All races, nationalitys,and religious entities, male or female , are included as a protected calss under Tittle VII.
Race and Color Discrimination
“Title VII prohibits employers from discriminating against employees or job applicants on the basis of color or racial ethnicity.” This extends to both intentional and unintentional forms of discrimination. Unlike other groups under the protected class, there are no exceptions to racial discrimination since there is no reason why a person will not qualify for a job because of their color and race. For this reason this type of violation may arguably be the easiest to claim, but hardest to prove. In the case McCullough v. Real Foods, Inc. (United States Court of Appeals, Eighth Circuit, 1998. 140 F.3d 1123) Cynthia McCullough (a black female) filed charges against Real Foods Inc. for racial discrimination for promoting less qualified white women instead of her. Real Foods defense was that since McCullough couldn’t work after 3:00pm, they decided the other candidate would be better suited for the job, claiming no discriminatory intent. McCullough initially lost the case but appealed it to the eighth cicuit court where she won the case.
The judgment claimed that the employer used their reasoning as a pretext and that they truly acted in a discriminatory manner. This may be argued from both sides; on one hand Real Foods may have needed someone who can fulfill the position without time constraints, therefore eliminating McCullough as an option. On the other hand it may argued that regardless of the time retsraints, McCullough was undoubtedly the better qualified of the two and should have received the promotion. Both sides have a legitimate point but the job of the courts is to decide which has the most compelling argument. Would this have happened if both women who were applying were white? This brings up yet another ethical question concerning employment discrimination. Whose rights are we willing to compromise in order to promote equality?
Perhaps the most controversial issue in regards to racial discrimination is that of Affirmative Action programs. “These programs are designed to make up for the past patterns of discrimination by giving members of protected class preferential treatment in hiring and promotion.” This type of program has unsuprisingly brought up much controversy, particularly in regards to “reverse discrimination.” In the case Regents of the University of California v. Bakke,( 438 U.S 265, 98 S. Ct. 2733, 57L.Ed.2d 750. 1978) “Allan Bakke, who had been turned down by the Universitys Medical School, sued the university for reverse discrimination after he discovered that his academic record was better than those of some minority group that had been admitted into the program.”
The U.S. Supreme court, under the use of intermediate scrutiny, found in favor of the University of California on the grounds that giving favorability to minority students would enhance the cultural diversity of its student body. This case is a perfect example of an abuse of Tittle VII, using it to deprive the rights of an individual with the excuse of promoting civil liberties to a minority group. This type of ruling is detrimental to our society by taking a statute that was established to enable minorities to be chosen based on ability, and completely taking it to the other extreme resulting in the basis of qualification to again rely on ethnicity rather than qualifications. Although these programs have their downside, they have proven to be effective in improving the amount of minorities in the workplace.
National Origin
“National origin discrimination includes discrimination based on the persons country of origin, their ancestors country of origin, or their physical and cultural characteristics of a particular origin.” This differs from racial discrimination by protecting an Anglo-looking individual from Hispanic origin regardless of their racial appearance. In the same manner it protects an individual with characteristics of a specific origin regardless of there actually country of origin. For this reason an employee proof of citizenship has been proven to be in violation of Title VII and banded from employment applications. Instead of proving citizenship, one must just prove legal right to work in this country.
An exception to this rule is the Indian Sovereignty Immunity, which allows American Indian tribes sovereignty by having and Indian origin as a prerequisite. In the case Pink v. Modoc Indian Health Project (157 F3d. 1185. 9th circuit, 1998) , the issue of what types of organizations are actually protected by this statute was in question. The court ruled that any corporation whose board was composed of two or more tribal members is protected under the Title VII exception. This may raise the possibilities for reverse discrimination once again. Does this implicate that an organization that has little or nothing to do with the Indian community has power to discriminate against non-Indian individuals who may be fully qualified for a particular job?
Tamiami Partners, Ltd. V. Miccosukee Tribe of Indian of Florida (63 F3d, 1050. 11th cir. 1995) courts ruling stated that claims of discrimination can be charged against individuals of a tribal organization. In actuality, although Indian organization themselves may be exempt from Title VII National Origin Discrimination, individuals of these corporation may still be held accountable for there discriminatory actions.
Religious Discrimination
The term religion may have a very broad meaning within a legal context. Although every state and local agencies may hold different views on the matter, the EEOC defines religion as “any moral beliefs that are sincerely held with the strengths of traditional religious views.” An employer must reasonably accommodate the religious practices of its employer. For example, if an individual’s religion prohibits them from working certain days, then the employer must make a reasonable attempt to adhere to such requirement. As decided by Frazee v. Illinois Department of Employment security (489 U.S. 829,109 S Ct. 1514, 103 L.Ed.2d914, 1989) , “employers must also reasonably accommodate an employees religious beliefs even if the belief is not based on tenets or dogma of a particular church, sect, or denomination. The only requirement is that the belief be sincerely held by the employee”.
The statute also protects on the absence of any religious views (atheist). There are certain exceptions to this statute as mentioned before. Religious institutions (schools, churches, organizations) are allowed to discriminate based on religion on the grounds of BFOQ. It is clear that religious opinions would be considered a legitimate prerequisite for such organizations that are based on certain religious principles. The employer may also not comply with specific religious requirements if it would cause undue hardship to the employer’s business.
This issue of religious discrimination has been put in a whole new perspective in the wake of the September 11th attacks on our country. These recent terrorist attacks have put the country in a high state of alert, resulting in levels of prejudice we haven’t seen since World War II. Clearly the fact that nearly 100% of all recent terrorists have been from the Islamic religion may constitute this stereotypical view towards Muslims. This frame of thought however, poses an imminent threat to our constitutional rights for which this country was founded. Nevertheless, with legislations such as the patriot act, the thought of marshal law is lingering among the minds of many Americans. It seems that the president’s call for “War on Terror” is slowly translating into a war on Islam. Employers now find themselves with a very difficult challenge. They must remove their ideological blinders and not give in to this discriminatory force that has seized the mind of so many Americans.
References
www.usdoj.gov/kidspage/crt/emp.htm
Ibid.
Donohue, J. J. III. (1994). Employment discrimination law in perspective: Three concepts of equality. Michigan Law Review, 92, 2605. Pp. 2605-2607
Ibid.
Ibid.
http://www.withylaw.com/history.htm
http://www.elinfonet.com/fedindex/5
Dan Stormer and Anne Richardson, “The Graying of America: Age Discrimination in the Nineties, ” University of West Los Angeles Law Review 26 (1995): 189, 191
Dan Stormer and Anne Richardson, “The Graying of America: Age Discrimination in the Nineties, ” University of West Los Angeles Law Review 26 (1995): 21
Statistical Abstract 1998, table 645 at p.403
Judy and D’Amico, Work Force 2020, 103
