~ Six Dimensions for EEO Laws ~
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D1: Which classes are protected?
D2: Which entities are covered?
D3: Which practices are prohibited?
D4: How is the law administered?
D5: What are the remedies?
D6: What are the judicial scenarios?
Title VII of the Civil Rights Act
1) Protected Classes:
2) CRA 1964: Race, color, religion, sex, and national origin
TIP article regarding inclusion of sex
Today, race and color are synonymous.
Current statues still used the race-color
distinction since 19th century laws
considered color mostly as black and
white and race as ethnicity (e.g, Arabs,
Jews) or national origin (Swiss, French)
CRA 1972:
Added public sector coverage, gave EEOC power to sue, reduced
entities covered from 25 to 15, increased timeframe to file EEOC
suit (90 to 180 days in non-deferral states, one’s without EEO
laws; 210 to 300 days in deferral states; one’s with EEO laws)
See: EEOC Timeliness page
CRA 1978:
Reorganization Plan (e.g., EEOC given authority to enforce antidiscrimination laws for civilian federal workforce and coordinate
federal equal employment opportunity programs, passed the PDA,
enforcement of EPA and ADEA transferred to EEOC (from DOJ)
CRA 1991: Clarified burden of proof in adverse impact scenarios, reversed several
controversial SC cases, banned test score adjustment based on minority status, allowed
jury trials and coverage for expert witness fees
2) Covered Entities: Private, state, local, and federal organizations with 15 or more
employees (worked 20 weeks in current or prior year).
Was “Sex” Introduced Into Title VII as a joke or to defeat the Bill?
The amendment to add sex to Title VII was introduced 2 days before the vote by
Representative Howard W. Smith (he was opposed to civil rights for Blacks and voted
against the CRA)
In 1979, in a interaction with Congresswoman Martha Griffiths, who worked to pass
the amendment, the retired Smith reportedly said: “Well, of course, you know I offered
it as a joke.”
But, when he was in the Senate, Smith had:
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a close relationship with the National Women’s Party
endorsed a sex amendment since 1956
supported and Equal Rights Amendment since the early 1940s
expressed concerns that White women would be disadvantaged by Title VII
Either way, the sex stipulation was rarely discussed during the 83-day debate in the Senate
Little legislative history or guidance on sex discrimination/harassment
EEOC not prepared to handle sex-based discrimination cases (esp. harassment)
Who Counts As An Employee?
The term “employer” means a person engaged in an industry affecting
commerce who has 15 or more employees for each working day in each of 20
or more calendar weeks in the current or preceding calendar year
Key is the existence of an “employment relationship” between the
organization and the worker (e.g., company is responsible for setting work
schedules, altering job assignments, supervision)
• All employees, including part-time and temporary workers, are counted for
purposes of determining whether an employer has a sufficient number of
employees.
• The existence of an employment relationship is most readily (but not
exclusively) shown by a person's appearance on the employer's payroll.
• Independent contractors are not counted as employees. This is because
the work they perform is based on an independent contractual relationship, not
an employment relationship.
Title VII of the Civil Rights Act (cont.)
3) Covered Practices: (Non-discrimination – “Trilogy”)
• Terms and conditions of employment (e.g., hiring, pay,
firing)
• Segregation or classification (and separate seniority)
• Retaliation
UNLAWFUL EMPLOYMENT PRACTICES
SEC. 2000e-2. [Section 703]
(a) Employer practices
It shall be an unlawful employment practice for an employer (1)to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any 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
(2) to limit, segregate, or classify his employees or applicants for employment 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
OTHER UNLAWFUL EMPLOYMENT PRACTICES
SEC. 2000e-3. [Section 704]
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for
an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on—
the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof
or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he
has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
4. Administrative Procedures:
Major EEOC Responsibilities
 Enforcement of the following laws:
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Title VII of the CRA (http://www.eeoc.gov/laws/statutes/titlevii.cfm)
PDA (http://www.eeoc.gov/laws/statutes/pregnancy.cfm)
Equal Pay Act (http://www.eeoc.gov/laws/statutes/epa.cfm)
The ADEA (http://www.eeoc.gov/laws/statutes/adea.cfm)
The ADA (http://www.eeoc.gov/laws/statutes/ada.cfm)
GINA (http://www.eeoc.gov/laws/statutes/gina.cfm)
Workplace retaliation
Investigates charges of alleged discrimination (and issues findings)
Settles charges through conciliation or other informal methods
Files lawsuits
Issues interpretive guidelines on various laws
http://www.eeoc.gov/laws/guidance/subject.cfm
 Develops procedural regulations
(http://www.eeoc.gov/laws/regulations/index.cfm)
 Conducts prevention efforts via education and technical assistance programs
~ OFCCP Relevance ~
Branch of Department of Labor
• Administers EO 11246 (AA for private, state, and municipal entities)
• Main purpose is to gain voluntary compliance from entities (e.g., contractors;
(those with contracts of a minimum of $10,000 from the federal government)
• Has authority to impose remedies on contractors prior to court action
OFCCP has become aggressive in pursuing “class actions‟
• This enforcement has has focused on hiring practices and resulted in record
financial settlements. Likely that more I-Os folks are dealing with OFCCP
enforcement today than in the past
Useful site: DCI Consulting Blog
More on OFCCP in Chapter 7 (Affirmative Action)
Title VII of the Civil Rights Act (cont.)
5) Remedies:
Equitable Relief: (to restore what was lost) --- e.g., reinstatement,
back pay for up to 2 years, lost benefits, lawyer fees
Legal Relief:
Compensatory damages -- pain and suffering (e.g., mental anguish,
inconvenience, loss of enjoyment of life, medical expenses)
Punitive Damages (punish companies for egregious violations;
those with malice or indifference). Restricted to private
organizations
Prior to CRA-91, only equitable relief was available and decision were
Caps for Compensatory and Punitive* Damages
Company size (# employees)
Damage Cap
15-100
$50,000
101-200
$100,000
201-500
$200,000
501 and more
$300,000
* Punitive damages only available in private sector
6) Judicial Scenarios: Disparate treatment, adverse impact, pattern or practice,
statutory defenses (e.g., BFOQ, BFSS)
Civil Procedures
*** 3 phase burden-shifting process
1) Plaintiff must establish a prima facie case
Prima facie ”at first look," or "on its face." A lawsuit in which the evidence
is sufficient to prove the case
2) Defense offered (non-discriminatory reason - DT, or job-relatedness - AI)
3) Plaintiff rebuttal (pretext - DT, or alternative practice available - AI)
Burdens are balanced in phases 1 & 2. For DT, easy to show
presumption of a violation (prima facie), easy defense burden (articulate
non-discriminatory reason). In AI, heavy burden for plaintiff and heavy
burden for defense
Civil Procedures (Cont).
Other Key Points
• Preponderance of evidence standard (not beyond reasonable doubt – criminal cases)
Before CRA-91: Judges made rulings after each phase; case could end at any phase.
After CRA-91: Jury trials allowed; evidence flows back and forth – judges give
instructions after each phase
• Summary judgments (e.g., SJD; summary judgment for the defendant – most
common). Convince judge that no one (trier of fact) would rule in favor of
the plaintiff even if all facts presented by them is true
• Class certification; 1) numerosity (large enough; individual claims impractical), 2)
commonality (harm common to class), 3) typicality (similar claims among members of
class), and 4) protection of class interest (plaintiffs will adequately represent class
interests [Class size of ½ million females; Wal-Mart v. Dukes]
Constitutional Amendments and EEO Law
• No amendments were designed to relate to EEO laws
• Amendments offer broader coverage than Title VII
• Some advantages to using amendments (e.g., less restrictions, damages); they
fill gaps in Title VII coverage
• Amendments often combined with Title VII suits if constitutional claims exist
The Amendments & EEO Law
1st Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the government for a
redress of grievances.
>>> Used for discrimination against religion
4th Amendment:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
>>> Used in cases regarding drug testing
The Amendments & Discrimination Law (cont.)
5th Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a grand jury, except in cases arising in the land
or naval forces, or in the militia, when in actual service in time of war or public
danger; nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
compensation.
>>> Protects employees from discrimination by Federal government on the basis
of race and other classifications
The Amendments & Discrimination Law (cont.)
11th Amendment: The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State
State sovereign immunity – based on the concept of Federalism (e.g., protects
the rights of states to govern themselves)
Limits role of federal government to review cases against states by citizens
(e.g., a state can invoke the 11th amendment when sued in federal court by its own
citizens/residents)
Amendment XIII:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the United States, or
any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this
article by appropriate legislation. Enforced via the CRA of 1866, 1871 (below)
§ 1981. Equal rights under the law (CRA of 1871)
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every
State and Territory to make and enforce contracts, to sue, be parties, give evidence, and
to the full and equal benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and to no other. Example:
Patterson v. McClean Credit Union (racial harassment covered under 13th
Amendment; CRA ‘91)
>>> Primarily used in cases of race discrimination (although it’s been
interpreted very broadly to include national origin. Sex not included as a
protected group
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No back pay limitations (vs. 2-years under Title VII)
No minimum requirement of # employees (vs. 15 under Title VII)
Only covers disparate treatment (need to generate proof of discriminatory intent)
Applies only to private organizations
The Amendments & Discrimination Law (cont.)
Amendment XIV:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside. No state shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the
laws.
§ 1983. Civil action for deprivation of rights (CRA of 1871 or KKK Act)
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this
section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a
statute of the District of Columbia.
>>> Permits employees to sue state and local government; often used to sue municipal
agencies (police and fire departments; e.g., Ricci v. DeStefano) for race and sex
discrimination in hiring and promotion decisions) and for reverse discrimination suits