3
Employment Discrimination Law
Learning Objectives
After completing this chapter, the reader will:
•
understand Title VII of the Civil Rights Act, the Equal Pay Act, and the Pay Check
Fairness proposed legislation.
•
understand the role of the EEOC in combating workplace discrimination.
•
understand employers’ responses to allegations of discrimination.
Several laws in the US, UK, and Europe make discrimination based on sex, race, national
origin, and, in some countries, sexual orientation, illegal. These laws have been amended
over time as the courts have gained experience with them; these amendments have generally
broadened the scope of the legislation.
Laws in the US
Two key US laws supporting equal opportunity employment are Title VII of the Civil Rights
Act (passed in 1964) and the Equal Pay Act (passed in 1963).
Title VII of the Civil Rights Act
Title VII prohibits discrimination against an individual based on his or her race, color,
religion, sex, or national origin. Interestingly, Howard W. Smith, a Virginia Democrat,
opposed the Civil Rights Act. Smith thought that, by adding the inclusion of gender to the
bill, northern Democrats would vote against it. In spite of Smith’s efforts, the bill passed. In
the 1970s, the courts began to hold that sexual harassment was a form of sexual
discrimination, and in the 1990s same-sex harassment was recognized under Title VII.
The law recognizes two different kinds of discrimination: disparate treatment
discrimination and disparate impact discrimination. The former involves directing
discrimination toward an individual, treating him or her unfairly because of his or her sex,
race, color, religion, or national origin. Sexual harassment from one individual directed
toward another individual is an example of disparate treatment discrimination, or
intentionally not hiring the best qualified candidate because of his or her race. Disparate
impact occurs when an employment practice has an unfair impact on a category of employees
(blacks, Muslims, or women, for example). Advertising employment openings only in
magazines read primarily by men would create a disparate impact on women. In one case, the
Supreme Court ruled that requiring laborers to have a high school diploma when this
qualification was unnecessary for the laborer role had a disparate impact on blacks.
Until recently, the Title VII required an individual to file a complaint of discrimination
within 180 days of the discriminatory act or the right to file a lawsuit could be denied. This
requirement proved problematic in situations in which an individual was unaware of the
discrimination until several months after it occurred. In 2009, Congress overturned this time
requirement with the Lilly Ledbetter decision.
There are narrowly defined situations in which employers are allowed to discriminate on
the basis of a trait that may be associated more with one sex or another – height or strength,
for example. Three conditions must apply to this “BFOQ” (Bona Fide Occupational
Qualification) employer defense. First, the trait must be necessary for a particular occupation
or job category. Second, it must be central to the operation of a business. Third, there is no
alternative to using this trait. When an employer argues that strength is a necessary job
requirement (lifting very heavy objects, for example), he or she may prefer to hire males
rather than females. When employers hire same-sex locker room attendants (males for the
men’s locker room and females for the women’s) they are within their rights under the BFOQ
requirements. However, many of these defenses have been struck down; for example,
formerly there was a minimum height requirement for police officers and a strength
requirement for firefighters. Neither trait was proven to be essential for the job. Hooters used
the BFOQ defense unsuccessfully as it attempted to justify the hiring of only women servers.
The courts determined that Hooters is primarily a restaurant, rather than a sex business, so
found that sex was not an essential requirement for its business operation.
Title VII of the Civil Rights Act does not specifically provide protection to individuals
based on their sexual orientation. Because of this omission, some states have provided such
legislation. A total of 20 states have enacted legislation to explicitly forbid discrimination in
the private sector based on sexual orientation and 13 states have enacted legislation
protecting transgendered people.
The Equal Pay Act
During World War II, many women took on jobs in the war industries. Because of this
increased effort by women, the National War Labor Board asked employers to voluntarily
make pay adjustments so that women’s rates of pay would be more comparable to men’s
rates of pay. Not only did employers ignore the request to raise women’s pay, but after the
war ended they also pushed women out of the workforce to make room for returning service
men. In addition to this type of discrimination, want ads routinely listed jobs as either “Help
Wanted – Male” or “Help Wanted – Female” with higher rates of pay for the so-called male
jobs.
These inequities in the 1950s and 1960s ushered in the Equal Pay Act of 1963.
The most important provisions of this act are the following:
(d)(1) No employer having employees subject to any provisions of this section shall
discriminate, within any establishment in which such employees are employed, between
employees on the basis of sex by paying wages to employees in such establishment at a
rate less than the rate at which he pays wages to employees of the opposite sex in such
establishment for equal work on jobs the performance of which requires equal skill,
effort, and responsibility, and which are performed under similar working conditions.
In essence this provision requires that when men and women compare their jobs for equal pay
purposes, they must be for equal work, which requires that the jobs be identical or nearly
identical jobs in the same organization.
The Equal Pay Act does specify some exceptional situations in which women and men
doing the same work may be paid differently. Men and women doing the same work may be
paid differently based on merit (for example, the evaluation of their work), based on the
quantity or quality of their production (for example, in factories, employees may be paid
based on the number of goods they produce and the quality of the goods), or based on
seniority (employees in the same job may be paid differently if one has more years of service
than the other).
A woman pursuing an equal pay claim must compare herself to a man doing the same
work or nearly identical work. This comparison becomes more difficult to make as women
advance in their careers, because jobs become more specialized and few are identical. For
example, all managers in a company do not have exactly the same job responsibilities or
complete the same daily tasks. (Chapter 5 on Equal Pay discusses the concept of “comparable
worth” introduced by some as a way of dealing with this issue.)
The Employer Response to Allegations of Discrimination
Employers fighting equal pay cases most often use either the exceptions clause of the law (for
merit, seniority, or quantity and quality of work) or the fact that the jobs are not similar
enough to be compared. If they can demonstrate that one employee performed better than
another, or the employees conducted different work, this may be enough to persuade a court
that a claim of unequal pay is unwarranted. In sexual harassment cases, the burden of proof is
on the alleged victim to prove that sexual harassment took place. The employer’s response to
unequal pay allegations, discrimination in hiring and promotion, and sexual harassment are
covered in detail in subsequent chapters of this book.
When faced with a charge of discrimination, many employers chose to settle out-ofcourt,
offering a financial settlement to the alleged victim. They do so for a number of reasons.
First, the cost of drawn-out litigation both in terms of time and money can be burdensome.
Second, the evidence may favor the plaintiff, making a court case too risky. And, third, a
court case raises the risk that employers’ reputations will suffer. These out-of-court
settlements do not require the employer to admit guilt. Proactive employers monitor their
workforce regularly to ensure that laws are being upheld, and many hire employee-relations
specialist or ombudspersons to help adjudicate employee–management disputes, some of
which may deal with alleged discrimination. These efforts prevent costly lawsuits and often
improve employee morale. In addition, proactive employers educate their employees about
sexual harassment and other discriminatory practices.
The Pay Check Fairness Act
Some members of the US Congress have deemed the Equal Pay Act inadequate to address
pay inequities between men and women. They have initiated two bills to correct these
problems (although as of the publication of this book neither bill has passed): The Pay Check
Fairness Act, introduced by Senator Tom Daschle (D-SD) and Representative Rosa DeLauro
(D-CT), and The Fair Pay Act, introduced by Senator Tom Harkin (D-IA). Both bills were
designed to close loopholes in the Equal Pay Act that make it relatively easy for employers to
circumvent the law, and both were offered as amendments to the Fair Labor Standards Act
(of which the Equal Pay Act is a part). The Pay Check Fairness Act has several features that
would strengthen equal pay legislation.
Although the Equal Pay Act allows for back-pay awards, it does not allow a plaintiff to
recover compensatory or punitive damages. Without this extra stick, employers may be more
willing to fight a case and prolong it, given the fact that the risk of losing may not be very
high. The Pay Check Fairness Act proposes to allow plaintiffs to recover compensatory
and/or punitive damages.
The Equal Pay Act is also silent on the issue of improving information about pay. The
Pay Check Fairness Act would require employers to provide the EEOC with information
about pay by race, sex, and national origin of employees. Furthermore, the act would prevent
employers from punishing workers for sharing pay information with one another. It also
directs the US Department of Labor to set up guidelines to help employers share information
regarding pay rates for different jobs.
The current Equal Pay Act makes it difficult to proceed with a class action suit, in which
employees from a particular firm come together to sue an employer. The Equal Pay Act
requires employees to “opt in” to a class action suit, placing the onus on employees to find
out about a legal action and request to be part of it in writing. The Pay Check Fairness Act
calls for the opposite; a class of employees would be part of the class unless they “opt out” of
it in writing.
Under the Equal Pay Act, an employer can assert that a male is paid more than a female
in a comparable job because of “factors other than sex” (see Section 3, D1). A seniority
system, merit pay, and the quantity and quality of production are three examples given as
factors other than sex. As discussed earlier in this chapter, these factors can reflect previous
conditions of injustice. The Pay Check Fairness Act attempts to eliminate these loopholes by
allowing only non-sex-related factors such as education or relevant job experience.
Under the current law, a wage comparison can only be made between two employees in
the same “establishment” (see Section 3, D1). However, employers of large organizations
with subsidiaries or divisions may claim that the two jobs are not part of the same
“establishment,” therefore The Pay Check Fairness Act eliminates this rule. Finally, The Pay
Check Fairness Act calls for more education and training of EEOC and US Department of
Labor employees and the establishment of an award to recognize employers who eliminate
pay disparities.
The Role of the Equal Employment Opportunity Commission
At the same time that Title VII was passed in the US, a new federal agency was established.
The Equal Employment Opportunity Commission (EEOC) was set up to investigate
discrimination claims. Table 3.1 shows that, from 1997 until 2007, the number of charges for
claims of sex discrimination by individuals has vacillated between a low of 23,904 in 2005
and 25,536 in 2002. In 2008, the number jumped to 28,372. This increase has been partially
attributed to the recession. Over the years, the number of complaints based on sex has
represented about 30% of all EEOC claims of discrimination. Other charges may have been
based on religion, age, or national origin. Charges under the Equal Pay Act have been fairly
consistent from 1997 to 2008, from 1.4% to 1% of all EEOC claims. It is important to
recognize that not all of these claims of discrimination have been found to have merit. The
EEOC investigates claims and makes a determination of whether discrimination appears to
have been present; for example, of the complaints for unequal pay in 2008, 56% were found
to have no merit.
Table 3.1 Total Charges for Sex Discrimination and Unequal Pay, 1997–2008
Sex Discrimination
FY 1997
FY 1998
FY 1999
FY 2000
FY 2001
FY 2002
FY 2003
FY 2004
FY 2005
FY 2006
FY 2007
FY 2008
24,728
24,454
23,907
25,194
25,140
25,536
24,362
24,249
23,094
23,247
24,826
28,372
30.7
30.7
30.9
31.5
31.1
30.2
30
30.5
30.6
30.7
30.1
29.7
1,134
1,071
1,044
1,270
1,251
1,256
1,167
1,011
970
861
818
954
1.4
1.3
1.3
1.6
1.5
1.5
1.4
1.3
1.3
1.1
1
1
Charges
Percent of Total
Claims
Equal Pay Act
Charges
Percent of Total
Claims
Source: US Equal Employment Opportunities Commission, http://eeoc.gov/stats.
In addition to adjudicating complaints, the EEOC provides outreach and technical
assistance to employers. Free training and information is available from the EEOC on
employment laws and fair employment practices. The EEOC produces publications on a
variety of topics, including: fair employment practices, ways to file a charge of
discrimination, employment rights of immigrants, and questions and answers for employers
about their liability in harassment cases.
The EEOC has been under-funded in recent years. Consolidating offices, reorganizing,
replacing retiring executives with lower-paid ones, and outsourcing its contact center for all
public inquiries have all been used to reduce costs. From 1980 to 2004, the agency’s full-time
employees have decreased by 934 (Gruber, 2004). Now many argue that the EEOC does not
have the staff required to effectively handle all of the complaints that come in, and that
having a call center manned by people without knowledge of the law or understanding of
local business practices leads to inadequate service and poor advice. In 2004, Leroy Warren,
the head of a federal task force on EEOC operations, reported that with the then-current staff
levels, the EEOC was unable to provide timely service to federal employees filing
discrimination complaints. In a letter to Senate Majority leader Bill Frist (R-TN) and thenHouse Speaker Dennis Hastert (R-IL), Warren wrote:
The task force has . . . received numerous, unsolicited comments from current and former
EEOC employees who are deeply troubled and concerned that the EEOC is on a planned
starvation diet, with the long-term result being an agency that will eventually fail or
become basically inoperative and lacking in public respect.
(Gruber, 2004)
In 2005, the House granted the EEOC $15 million below their request of $350 million and
the Senate allotted them $327.5 million, $23.2 million below their requested budget. Cari
Dominquez, the chairwoman of the EEOC, went on record that the EEOC foresees an
increase in private sector complaints that, without additional resources, cannot be effectively
handled (Gruber, 2004).
Other countries have similar bodies to the EEOC. For example, in Britain the Equality
and Human Rights Commission brings together what were formerly three commissions: for
racial equality, for disability rights, and the Equal Opportunity Commission (EOC) that
focused on sexual equality. In Australia, the Human Rights and Equal Opportunity
Commission upholds laws against sexual discrimination and basic human rights. In France,
the Women’s Rights Service provides the same type of services.
Legislation in the UK and Other EU Countries
Protection against workplace discrimination came later in the UK than in the US. The Equal
Pay Act was passed in 1970 and the Sex Discrimination Act in 1975. These laws are very
similar to the US Equal Pay Act and Title VII legislation. One substantial difference,
however, is the provision to cover transgendered individuals. The Sex Discrimination Act (as
amended in 1999) and the Gender Recognition Act (2004) recognize discrimination based on
gender reassignment Furthermore, the Employment Equality Regulations (2003) made it
illegal to discriminate on the grounds of sexual orientation in employment and training. One
additional law focuses specifically on the governmental sector: The Gender Equality Duty
(2007) mandates that public authorities must demonstrate that they are promoting equality for
men and women, and eliminating sexual harassment and discrimination. Thus public
authorities have to track the progress of their employees to see if any discrimination is
occurring against either sex.
European countries have passed legislation on sex discrimination prohibiting unequal pay
for equal work, sexual harassment, and other discriminatory hiring processes, although
individual countries have passed this type of legislation at different times. In France, the
Code du Travail was passed in 1973. Similar to US laws, it covers employment
discrimination, equal pay legislation, and sexual harassment legislation. In Germany, similar
laws exist. However, in Germany sexual harassment legislation was not passed until 1994 as
part of The Second Equal Rights Act. In Spain, it was not until 1990 that the Civil Code was
altered to include non-discrimination by reason of sex. In Switzerland, the Federal Act on
Gender Equality was enacted in 1995. In all European countries, individuals or employers
involved in a sex-discrimination case first take their case to their country’s court system. If
not satisfied with the first judgment, individuals, companies, or organizations can appeal their
case to the European Court of Justice. It is up to the European Court of Justice as to whether
or not they will consider a case.
The chapters to follow include examples of legal cases that have been brought before the
US courts or European courts, and descriptions of some of the challenges that still exist for
women in the workplace. The legal cases illustrate how the courts have interpreted the Equal
Pay Act, Title VII and European anti-discrimination laws. Many of the challenges for women
are presented as case studies at the end of the chapters.
Further Reading
For information on the current law in the US and activities of Congress, consult: National
Women’s Law Center, www.nwlc.org.
For international information on employment discrimination law, country-specific laws and
statistics, refer to: The International Labour Organization, www.ilo.org and search under
research and publications.
Rutherglen, G.A. (2007). Employment Discrimination Law (2nd ed.). New York, NY:
Foundation Press.
Discussion Questions
1. Review the complete wording of the Title VII legislation and the Equal Pay Act at
www.eeoc.gov. Note that an amendment to the Title VII of the Civil Rights Act was
passed in 1991. Review it to see what it has to say about punitive damages for intentional
discrimination and unlawful harassment.
2. With current legislation in force in the US and many other countries, why do you think
there is still a problem with unequal pay and workplace discrimination?
Other Activities
1. Internet research project: Switzerland’s equality laws came late compared with those of
the US and UK. Compare Switzerland with the US or the UK on the following features:
how many women are in management positions in the two countries? What sorts of
occupations are women prevalent in within the two countries?