EEO Players Supreme Court Congress EEOC Equal

EEO: Players Supreme Court Congress EEOC

Equal Pay Act of 1963 • Forbids wage discrimination on the basis of sex. • Requires organizations of all sizes (over 2) to pay men and women substantially the same wages for equal work. – Jobs do not have to be identical, only substantially equal (Schultz vs. Wheaton Glass, 1970) – Equal work defined by 4 factors: • skill • effort • responsibility • working conditions

• Equal Pay Act – Permissible to pay men and women different wages based on: • • seniority merit quality of work quantity of work – Act has wider application than any other law because it applies to all organizations.

Schultz vs. Wheaton Glass (1970) • Defined “substantially equal work; clarified Equal Pay Act: – Male and female job classifications for packers in production department. – Men paid 10% more than women. – Male jobs had additional, infrequently performed tasks (i. e. , shoveling broken glass, doing heavy lifting). – Court ruled that jobs do not have to be identical should be substantially equal; determined by job analysis.

The Civil Rights Act of 1964 • Title VII; Section 703: “It is unlawful for an employer to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual’s race, color, religion, sex, or national origin. ”

Protected Classes • • • Race Color National Origin Sex Religion • • • Disability Age Pregnancy Veteran’s Status Sexual Orientation (in 11 states; D. C, select cities & counties)

Coverage of 1964 Civil Rights Act (Amended 1972) • Covers: – – Private employers with 15 or more employees. Federal, state and local government. Employment agencies. Unions and apprenticeship committees. • Applies to all decisions relating to employees’ job classification: – – selection/hiring promotion transfers training

1964 Civil Rights Act (cont’d) • Exemptions: – Membership in private clubs. – Religious organizations can make employment decisions based on religion. – Places of reservation connected with Indian Reservations. • Created EEOC (Equal Employment Opportunity Commission)

Disparate Treatment • Direct form of discrimination; employment decisions based on race, color, gender etc. • Courts look for discriminatory motive; investigate the employee’s actions and qualifications. • Employer can justify actions by: – absence of discriminatory intent or – showing selection based on BFOQ (Bona Fide Occupational Qualification)

BFOQ • Religion is BFOQ for certain positions. • EEOC Guidelines: Sex can be a BFOQ: – Authenticity or genuineness (actor/actress) – Protection of personal privacy of customers or coworkers (massage therapist) – Exclusion based on sex permissible if all or substantially all members of sex lack ability to perform some aspect of job that is essential to the business. • Supreme Court Cases: – Diaz v. Pan American (1971) sex is not a BFOQ for flight attendants: opened job up for men. – Dathard v. Rawlison (1977) sex is BFOQ; excluded female guards from all-male maximum security prison. – UAW vs. Johnson Controls (1991) sex is not BFOQ; no support for fetal protection policy.

Disparate/Adverse Impact • Unnecessary policy or procedure that has adverse impact on protected group. • Addresses business practices rather than individual actions. • Courts look at impact of actions, not motives. • Adverse impact shown when minority selection rate is less than 4/5 ths or 80% of majority rate (4/5 ths rule). – Employer has 200 applicants for 100 positions • 100 white applicants- hired 80 (80% hire rate for majority) • 100 black applicants - hired 20 (need to hire 64 blacks; 80% of 80%)

• If adverse impact: • Employer must show that policies or practices with adverse impact are related to effective job performance or are business necessity (lifting requirements for firefighters related to effective performance) • Requires validation of selection device. • Seniority System Exception: Promotion based on seniority =last hired/first fired. Policy has adverse impact but is exempted under Teamsters v. U. S. (1977) Supreme Court decision.

Griggs v. Duke Power (1971) • Both Blacks and Whites applying for janitorial position required to: – have a high school degree, and – pass a standardized general intelligence test (Wonderlic) • Requirements had adverse impact on blacks. • Employer unable to show job-relatedness of tests or relation of high school degree to effective job performance. • Court ruled for plaintiff: – Established disparate impact definition of discrimination. – Absence of discriminatory intentions does not absolve employer. – Employer has burden of proof: must prove that requirements with adverse impact are job related. – Tests should be used to measure the person for the job. – Even professionally developed, widely used tests must be validated.

Price Waterhouse v. Hopkins (1989) • Ann Hopkins rejected for partnership: – 662 partners in firm - 7 were women. – Of 88 up for partnership, she was the only woman. • Hopkins characterized as overly aggressive and abrasive; employer claimed that it legitimately emphasized interpersonal skills in partnership decisions. • Partners described her as “macho”; recommended that she “take a course in charm school”, and “walk, talk, and dress more femininely, wear make-up and have her hair styled. ”

• Waterhouse vs. Hopkins cont’d • Court found “mixed motives” in case: interpersonal skills legitimate factor but stereotyping entered into decision. • Ruled that employer can avoid liability for mixed motive case if they could demonstrate that the same action would have been reached without discriminatory motive* (ie. Aggressive man would not have been promoted either). • *1991 Civil Rights Act redefined case. Stipulates that any intentional discrimination is unlawful, even if the same action would have resulted without discriminatory motive.

1991 Civil Rights Act • Overturned/Redefined 5 Supreme Court Decisions: • Restored “business necessity” and burden of proof to employers. – Ward Cove Packing v Antonio (1989): shifted burden of proof from employer to employee. Also changed “business necessity” to “legitimate business interest”of practices with adverse impact. • Affirmative action decrees cannot be challenged. – Martin v. Wilks (1989) permitted white firefighters to challenge consent decree years after it had been approved by lower court.

1991 Civil Rights Act (cont’d) • Allowed for retroactive challenges of unfair seniority systems (reversed Lorance v. AT&T (1989). • Prohibits race norming. • Extends coverage to U. S. citizens employed by American companies abroad (EEO v. Aramco, 1991) • Provides for jury trials and allows for compensatory and punitive damages in cases of intentional discrimination. Cap: – – $50, 000 small orgs (14 -100 employees) $100, 000 medium (101 -200) $200, 000 (201 -500) $300, 00 (over 500 employees)

EEOC (Equal Employment Opportunity Commission) • Independent agency established by 1964 Civil Rights Act. 5 members appointed by President and approved by Senate. • Investigates discrimination complaints. • May act as employees attorney and sue organizations. • Interprets court cases and legislation; publishes guidelines. • OFCCP (Office of Federal Contract Compliance Programs) Department of Labor agency; works with federal contractors & subcontractors on nondiscrimination and affirmative action.

EEO Records • Employers with 100 or more employees and Federal contractors with 50 employees and contracts of $50, 000 + must submit EEO-1 report form annually. – Report details employees’ job category by protected class. • Must keep all personnel records (hiring, promotion, compensation, termination etc) for 6 months (3 yrs. recommended)

EEOC Investigation • Employee must file charge within 180 days of alleged discriminatory action. • EEOC reviews charge, determines jurisdiction (authorized to investigate). • Notice given to employer within 10 days of filing. Employer asked to respond/provide data. • EEOC investigates complaint. • If charge valid, conciliation meeting arranged. • Employer admits discrimination: posts notice of relief & takes action. • Employer rejects: EEOC issues “Right to Sue Letter” notifying employee that s/he has 90 days to file personal suit in federal court. EEOC may also take on case.

Court Procedures • Employee/Plaintiff proves prima facie case (Mc. Donnell Douglas v. Green , 1973) – Plaintiff is member of protected class. – Disparate impact or treatment existed: • applied for job and rejected. Employer continued to seek other applicants after rejection. • Adverse treatment: plaintiff more qualified for position than person hired. • Adverse impact: 4/5 ths rule. • Burden of proof switches to employer – Employee lacked BFOQ. – Adverse treatment: business-related, nondiscriminatory reason for not hiring plaintiff. – Adverse impact: procedure is job-related; business necessity.

Age Discrimination in Employment Act (ADEA) 1967; 1978; 1986 • Illegal to discriminate against individuals over 40 • Applies to companies with 20+ employees • Cannot force individuals to retire & replace with younger workers or comparably aged workers. • Exceptions: – Age as BFOQ or related to effective job performance. – Employee is top executive or policy maker.

Immigration and Reform Law of 1986 • Employers must verify citizenship of all new-hires. • Employers may not hire illegal aliens. • Employers cannot discriminate on basis of national origin or citizenship • Court cases: questions about language skills of applicant need to be job-related.

Pregnancy Discrimination Act (1978) • Illegal to discriminate because of pregnancy, childbirth or related conditions. • Pregnancy viewed as “sex-plus discrimination”; covered under 1964 Civil Rights Act. • Employers must treat pregnancy as longterm disability with respect to medical insurance and leaves.

Family and Medical Leave Act (FMLA) 1993 • Covers organizations with 50 or more employees. • Eligibility: – Male and female employees. – Employed 12 months and 1, 250 hrs. in the previous year. • Employees may take a total of 12 weeks leave during any 12 month period for: – Birth, adoption, or foster-care placement of child. – Caring for spouse, child or parent with serious health condition – Serious health condition of employee. • Serious health condition requires inpatient, hospital care or continuing physician care.

• • • FMLA (cont’d) Employees may substitute accrued paid (vacations/sick days) for unpaid leave. Leave may be intermittent, rather than one block. Employees must give 30 -day notice where practical. Employees on leave must be able to return to same job or job with equivalent status and pay. Health benefits must continue during leave.

Americans With Disabilities Act (ADA) 1990 • 43 million disabled in U. S. (17% of population). • Covers all employers with 15+ employees and government employees. • Title 1 of ADA prohibits discrimination against disabled individuals who can perform essential job functions. • “Disabled” defined as meeting one or more criteria: – physical or mental impairments that substantially limits one or more major life activities, – has a record of such an impairment; or – is regarded by others as possessing such an impairment.

ADA: Examples of Disabilities • • physical impairmental illness. life-threatening diseases (cancer, HIV, AIDS). individuals with major muscular limitations or breathing difficulties. • impairments relating to thinking, concentrating or interacting with others (learning disabilities). • rehabilitated alcoholics and drug users. • Excluded: normal deviation in height/weight, sexual behavior disorders, compulsive gamblers, pregnancy, current drug and alcohol users.

ADA: Essential Job Functions • Cannot discriminate against individuals able to perform essential job functions: – Job exists primarily for that specific function, or – limited number of personnel able to perform that function, or – ability to perform function is primary hiring or retention criterion for job. • Functions should be identified in job descriptions and job specifications.

ADA: Reasonable Accommodations and Undue Hardships • Employer required to make a reasonable accommodation to permit disabled to perform job unless it would impose an undue hardship. – Examples of accommodation: access to facilities, flexible work schedules, readers, unpaid leave to receive treatment, restructure job. – Undue hardship: cost of accommodation relative to financial resources, employer size, effect on other employees & normal business operation. • Exemption: Individuals who pose a direct threat to the health or safety of themselves or others at work.

ADA (cont’d) • Employer may not – inquire about disability in hiring interview – use non-valid tests with adverse impact – limit advancement opportunity or other conditions of employment (ie, training) • Preemployment medical exams prohibited except after an offer is made, conditional upon passing a physical exam. • Affirmative action programs required for federal contractors and subcontractors with contracts of $2, 500+.

Executive Order 11246 (1965) • Organizations with government contracts over $50, 000 and 50 or more employees must establish AA plans. • Requires organizations to: – agree not to discriminate – take specific actions to improve opportunities for women and minorities (affirmative action programs). • Established OFCCP: Office of Federal Contract Compliance - administers affirmative action programs.

Affirmative Action Programs • Purpose is to compensate for past discrimination. • Features of AA programs: – – – – Increase pool of minority applicants. Recruitment and training. Make organization more attractive to minorities. Placement in upwardly mobile positions. Remove obstacles to advancement. Attitudinal change. Goals and timetables for achieving above goals. Preferential treatment for minorities. • Affirmative action does not automatically mean quotas (except in cases of consent decrees).

Example AA

Reverse Discrimination Cases • Weber v. Kaiser Aluminum (1976) – AA program reserved 50% of openings in training program for African-Americans. – Resulted in junior black employees getting preferential treatment over senior white employees. – Supreme court supported quotas: • 1. plan was temporary • 2. plan did not have extreme negative effect on majority • 3. intended to eliminate previous injustice • Piscataway Township v. Taxman (1996) Court of Appeals case pulled from Supreme Court. White teacher laid off instead of Black teacher who was similarly qualified and held same seniority. Cited Weber case, AA plan violated #2 & 3; diversity insufficient justification for AA.

Reverse Discrimination Cases (cont’d) • Bakke v. Regents of University of California (1978) – UC Davis medical school had special set aside program for disadvantaged applicants. No prior discrimination. – Accepted less-qualified students than Bakke. – Supreme Court struck down quotas • university may use race as factor in admissions to increase diversity, but cannot use quotas in the absence of prior discrimination. • Hopwood v. State of Texas (1996) - Supreme Court struck down the use of separate lists & test scoring for minority & majority law school applicants; no evidence of prior discrimination; diversity is not a compelling interest by which race conscious admissions practices can be justified. • Adarand Constructors v. Pena (1995) Supreme Court ruled that set-aside programs for government contracts must be based on redressing past discrimination.

Supreme Court’s Ground Rules for Affirmative Action Plans (Marlow & Rowland, 1989) • Affirmative Action Programs should: – Avoid rigid quotas, – Be carefully tailored to remedy past and precise discrimination, – Be temporary in duration, and – Should not unnecessarily restrict the rights of majority employees.