Chapter 1: An Introduction to EEO Law

1. Chapter 1: An Introduction to EEO Law

2. ~ Six Dimensions for EEO Laws ~ • 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?

3. Title VII of the Civil Rights Act 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) • Protected Classes: • CRA 1964: Race, color, religion, sex, and national origin • TIP article regarding inclusion of sex • 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 (Link) • CRA 1978: Reorganization Plan (e.g., EEOC given authority to enforce anti- • discrimination 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).

4. 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: • 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)

5. 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.

6. 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 (see EEOC list of covered practices here) • UNLAWFUL EMPLOYMENT PRACTICES • SEC. 2000e-2. [Section 703] • (a) Employer practices • It shall be an unlawful employment practice for an employer - • 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 opposedany practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participatedin any manner in an investigation, proceeding, or hearing under this subchapter.

7. 4) Administrative Procedures: Major EEOC Responsibilities • Enforcement of the following laws: • Title VII of the CRA (Link) • Specifically, see "UNLAWFUL EMPLOYMENT PRACTICES SEC. 2000e-2. • [Section 703]" • Pregnancy Discrimination Act (Link) • Equal Pay Act (Link) • The Age Discrimination in Employment Act - ADEA (Link) • The Americans With Disabilities Act – ADA (Link) • Genetic Information Nondiscrimination Act – GINA (Link)) • Workplace retaliation (see Title VII "OTHER UNLAWFUL EMPLOYMENT PRACTICES SEC. 2000e-3. [Section 704]" • Investigates charges of alleged discrimination (and issues findings) • Settles charges through conciliation or other informal methods • Files lawsuits • Issues interpretive guidelines on various laws (Link) • Develops procedural regulations (Link) • Conducts prevention efforts via education and technical assistance programs

8. ~ 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 federal entities and federal contractors 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 (Link) *** Administration budget proposes merging OFCCP with EEOC More on OFCCP in Chapter 7 (Affirmative Action)

9. 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 limited to judges (jury trials now allowed)

10. 6) Judicial Scenarios: Disparate treatment, adverse impact, pattern or practice, statutory defenses (e.g., BFOQ, BFSS)

11. Civil Procedures • *** 3 Phase Burden-Shifting Process • Plaintiff must establish a prima facie case(pry-mah-fay-she) • Prima facie ”at first look," or "on its face." A lawsuit in which the evidence • is sufficient to prove the case • Defense offered (non-discriminatory reason – Disparate Treatment, or job- • relatedness – Adverse Impact) • 3) Plaintiff rebuttal (Pretext – Disparate Treatment, or alternative practice • available – Adverse Impact) Burdens are balanced in phases 1 & 2. For Disparate Treatment, easy to show presumption of a violation (prima facie), easy defense burden (articulate non-discriminatory reason). In Adverse Impact, heavier burden for plaintiff and heavier burden for defense

12. Civil Procedures (Cont). • Other Key Points • Preponderance of evidence standard (not beyond reasonable doubt – criminal • cases) Reasonable Doubt • 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 [Original class size of 1.6 million females; Wal-Mart v. Dukes]

13. 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 (e.g., Title VII & 14th Amendment)

14. 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 (usually for alleged failure to accommodate sincerely-held religious beliefs) 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

15. 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. >>> People cannot be denied rights without notice and the opportunity to defend themselves Protects employees from discrimination by Federal government on the basis of race and other classifications

16. 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 in cases against (e.g., a state can invoke the 11th amendment when sued in federal court by its own citizens/residents)

17. 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. • 42 U.S. Code § 1981. Equal rights under the law (originally enacted as 1st section of CRA of 1866) • 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 thefull 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: Pattersonv. 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) • 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)

18. The Amendments & Discrimination Law (cont.) Amendment XIV (ratified in 1868) 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 enforceany 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, withoutdue processof law; nor deny to any person within its jurisdiction theequal protectionof the laws. 42 U.S. Code § 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, ofany Stateor 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 thedeprivation 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