Equal Employment Opportunity: The Legal Environment

2. EqualEmploymentOpportunity:The LegalEnvironment Chapter 2

3. Chapter Overview • Equal Employment Opportunity Laws • Landmark Court Cases • Enforcement Agencies • Summary of Learning Objectives 2-3

4. Equal Employment Opportunity Laws • Equal employment opportunity – The right of all people to work and to advance on the basis of merit, ability, and potential • Discrimination in society and in the workplace gave rise to the civil rights movement, which in turn resulted in the U.S. Congress’s passage of laws to ensure equal employment opportunity 2-4

5. Equal Pay Act (1963) • Prohibits sex-based discrimination in rates of pay for men and women working on the same or similar jobs • Part of the minimum wage section of the Fair Labor Standards Act (FLSA) • Coverage of the Equal Pay Act is coextensive with the coverage of minimum wage provisions of FLSA • Permits differences in wages if payment is based on seniority, merit, quantity and quality of production, or a differential due to any other factor than gender • Prohibits employers from attaining compliance with the Act by reducing wage rate of any employee 2-5

6. Title VII, Civil Rights Act (1964) • Keystone federal legislation; covers disparate treatment and disparate impact discrimination; and created the Equal Employment Opportunity Commission • Section 703 covers two basic areas of discrimination • Disparate treatment, Section 703(a)(1) – Intentional discrimination and treating one class of employees differently from other employees • Disparate impact, Section 703(a)(2) – Unintentional discrimination involving employment practices that appear to be neutral but adversely affect a protected class of people 2-6

7. Title VII, Civil Rights Act (1964) • Organizations covered by the provisions of Title VII: • All private employers of 15 or more people who are employed 20 or more weeks per year • All public and private educational institutions • State and local governments • Public and private employment agencies • Labor unions that maintain and operate a hiring hall or hiring office or have 15 or more members • Joint labor–management committees for apprenticeships and training • Title VII created the Equal Employment Opportunity Commission (EEOC) to administer the act and to prohibit covered organizations from engaging in any unlawful employment practices 2-7

8. Age Discrimination in Employment Act (1967) • Prohibits discrimination against employees over 40 years through 69 years of age by all companies employing 20 or more people in the private sector • Amendment (Effective January 1, 1987) – Eliminates mandatory retirement at age 70 for employees of firms with 20 or more employees • Organizations covered by the ADEA: • Private employers of 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year • Labor organizations • Employment agencies • State and local governments • Federal government agencies, with certain differences; for example, federal employees cannot be forced to retire at any age 2-8

9. Age Discrimination in Employment Act (1967) • Exception – Employees in bona fide executive or high policymaking positions • Permits mandatory retirement at age 65 for high-level executives with pensions exceeding $44,000 a year • Section 4(f) of the ADEA sets forth several conditions under which the act does not apply • Age is a bona fide occupational qualification • It is not illegal for an employer to discipline or discharge an individual within the protected age group for good cause • Originally, the secretary of labor was responsible for enforcing the ADEA. On July 1, 1979, the EEOC assumed that responsibility 2-9

10. Rehabilitation Act (1973) • Prohibits discrimination against handicapped individuals and contains these provisions • Prohibits discrimination against handicapped individuals by employers with federal contracts and subcontracts in excess of $2,500 • Requires written affirmative action plans (AAPs) from employers of 50 or more employees and federal contracts of $50,000 or more • Prohibits discrimination against handicapped individuals by federal agencies • Requires affirmative action by federal agencies to provide employment opportunities for handicapped persons • Requires federal buildings to be accessible to handicapped persons • Prohibits discrimination against handicapped individuals by recipients of federal financial assistance 2-10

11. Rehabilitation Act (1973) • Section 7(7)(B) of the Rehabilitation Act defines a handicapped individual as a person who has a physical or mental impairment that substantially limits one or more of major life activities, has a record of such impairment, or is regarded as having such an impairment • Primary responsibility for enforcing this act lies with the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor 2-11

12. Vietnam-Era Veterans Readjustment Assistance Act (1974) • Prohibits federal government contractors and subcontractors with federal government contracts of $10,000 or more from discriminating in hiring and promoting Vietnam and disabled veterans • Requires employers with 50 or more employees and contracts exceeding $50,000 to have written affirmative action programs for people protected by this act • OFCCP enforces this act 2-12

13. Pregnancy Discrimination Act (1978) • The Supreme Court decision, General Electric Co. v. Gilbert, had a significant impact on its passage • Requires employers to treat pregnancy just like any other medical condition with regard to fringe benefits and leave policies • EEOC (responsible for administering the act) has taken the view that • An employer may not deny its unmarried employees pregnancy benefits • If pregnancy benefits are given to female employees, they must also be extended to the spouses of male employees 2-13

14. Immigration Reform and Control Act (1986) • Makes it illegal to hire, recruit, or refer for U.S. employment anyone known to be an unauthorized alien • To avoid a penalty of perjury, a company must verify that an individual is not an unauthorized alien by one of these measures • Examining the individual’s U.S. passport; certificate of U.S. citizenship; certificate of naturalization; unexpired foreign passport, if the passport has an appropriate, unexpired endorsement of attorney general authorizing individual’s employment in United States; or resident alien card • Examining documents demonstrating employment authorization • Examining documentation establishing identification 2-14

15. Americans with Disabilities Act (1990) • Gives disabled persons sharply increased access to services and jobs • Under this law, employers may not • Discriminate, in hiring and firing, against disabled persons who are qualified for a job • Inquire whether an applicant has a disability, although employers may ask about his or her ability to perform a job • Limit advancement opportunity for disabled employees • Use tests or job requirements that tend to screen out disabled applicants • Participate in contractual arrangements that discriminate against disabled persons 2-15

16. Americans with Disabilities Act (1990) • Employers • Must provide reasonable accommodations for disabled employees • Do not have to provide accommodations that impose an undue hardship on business operations • Mental disability is defined broadly as a mental impairment that substantially limits one or more of the major life activities of an individual, or a record of such impairment or being regarded as having such an impairment • In 1997, Equal Employment Opportunity Commission (enforces the ADA) issued guidelines specifying that qualified individuals with psychiatric disabilities are protected from discrimination and are entitled to reasonable accommodations on job 2-16

17. Suggestions for Making the Workplace Accessible to Disabled Workers 2-17

18. Older Workers Benefit Protection Act (1990) • Provides protection for employees over 40 years of age in regard to fringe benefits and gives employees time to consider an early retirement offer • Under this act, employers may integrate • Disability and pension pay by paying retiree the higher of the two • Retiree health insurance and severance pay by deducting former from latter • In cases of plant closings or mass layoffs, pension and severance pay by deducting from severance pay the amount added to pension • Coverage is the same as that under Age Discrimination in Employment Act 2-18

19. Civil Rights Act (1991) • Permits women, persons with disabilities, and persons who are religious minorities to have a jury trial and sue for punitive damages if they can prove intentional hiring and workplace discrimination • Requires companies to provide evidence that the business practice that led to discrimination was not discriminatory but was job related for the position in question and consistent with business necessity • Covers all employers with 15 or more employees • Places a cap on amount of damages a victim of nonracial, intentional discrimination can collect, based on the size of firm • Concerns the burden of proof for companies with regard to intentional discrimination lawsuits 2-19

20. Family and Medical Leave Act (1993) • Enables qualified employees to take prolonged unpaid leave for family and health-related reasons without fear of losing their jobs • Under the law, employees can use this leave in the event • That they are seriously ill • Of an immediate family member is ill • The birth, adoption, or placement for foster care of a child • To qualify, employees must have been employed for at least a year and must have worked for no less than 1,250 hours within the previous 12-month period 2-20

21. Executive Orders 11246, 11375, and 11478 • Orders issued by the President of the United States for managing and operating federal government agencies • Executive Order 11246 (issued in 1965) – Requires every nonexempt federal contractor and subcontractor not to discriminate against employees and applicants because of race, sex, color, religion, or national origin • Primary exemption from order is for contracts and subcontracts that do not exceed $10,000 • OFCCP within the Department of Labor is responsible for administering this executive order 2-21

22. Executive Orders 11246, 11375, and 11478 • Equal opportunity clause specified by Executive Order 11246 requires contractors or subcontractors to agree to • Comply with provisions of executive order • Comply with those rules, regulations, and orders of secretary of labor that are issued under the order • Permit access to its books and records for purposes of investigation by secretary of labor • Include the equal employment clause in every subcontract or purchase order so that such provisions will be binding on each subcontractor or vendor • In the event of noncompliance with this order – Contract may be canceled, terminated, or suspended • After a hearing on noncompliance, the contractor may be declared ineligible for future government contracts 2-22

23. Executive Orders 11246, 11375, and 11478 • Requires employers with 50 or more employees and contracts and subcontracts that exceed $50,000 to have a written affirmative action program (AAP) • Utilization evaluation – That part of the affirmative action plan that analyzes minority group representation in all job categories; past and present hiring practices; and upgrades, promotions, and transfers • Gave the U.S. Office of Personnel Management (OPM) authority to issue regulations dealing with discrimination within federal agencies 2-23

24. Executive Orders 11246, 11375, and 11478 • In 1967, Executive Order 11375 amended Executive Order 11246 and prohibited sex-based wage discrimination for government contractors • In 1969 the OPM issued Executive Order 11478, which in part suspended Executive Order 11246, along with revised regulations • The new regulations merely modified a number of the procedures under the previous orders and regulations 2-24

25. State and Local Government Equal Employment Laws • Most states have some form of protection against employment discrimination on the basis of disability • As a result of the Supremacy Clause of the U.S. Constitution, many state and local laws became invalid after passage of the Civil Rights Act and other equal employment legislation • No federal laws prohibit states from passing laws against discrimination in areas not covered by federal law as long as it does not require or permit an act that is unlawful under federal legislation • One significant development at the state level on affirmative action occurred in California 2-25

26. State and Local Government Equal Employment Laws • Equal employment opportunity a challenging and complex aspect of human resource management since • Ambiguities in language leave much room for interpretation by federal agencies that enforce laws • Court decisions regarding laws often raise additional questions of interpretation 2-26

27. Summary of Equal Employment Opportunity Laws and Executive Orders 2-27

28. Landmark Court Cases • Griggs v. Duke Power Company – Decision established several significant points concerning equal employment opportunity • Consequences of employment practices, not simply intent or motivation of employer, are the thrust of Title VII in that practices that discriminate against one group more than another or continue past patterns of discrimination are illegal regardless of nondiscriminatory intent of employer • Disparate impact doctrine – Provides that when the plaintiff shows that an employment practice disproportionately excludes groups protected by Title VII, burden of proof shifts to defendant to prove that the standard reasonably relates to job performance • EEOC’s guidelines that permitted use of only job-related tests are appropriate 2-28

29. Landmark Court Cases • McDonnell Douglas v. Green – Its ruling set forth standards for burden of proof in discrimination cases • Complainant in a Title VII case carries initial burden of proof in establishing a prima facie case of discrimination. It can be done by showing that • The person belongs to a racial minority • The person applied and was qualified for a job for which the employer was seeking applicants • Despite his or her qualifications, the applicant was rejected • After the rejection, the position remained open and the employer continued to seek applicants from persons of the complainant’s qualifications 2-29

30. Landmark Court Cases • If complainant establishes a prima facie case, burden shifts to the employer to provide some legitimate, nondiscriminatory reason for the employer’s rejection • Burden then shifts to employee to prove that employer’s allegedly legitimate reason was pretextual • Albemarle Paper v. Moody • Reaffirmed that tests used in employment decisions must be job related, and the use of EEOC guidelines in validating tests • University of California Regents v. Bakke • Reverse discrimination – Condition under which there is alleged preferential treatment of one group (minority or women) over another group rather than equal opportunity 2-30

31. Landmark Court Cases • United Steelworkers of America v. Weber – Court ruled that Kaiser’s affirmative action plan was permissible because it • Was designed to break down old patterns of segregation • Did not involve discharge of innocent third parties • Did not have any barriers to advancement of white employees • Was a temporary measure to eliminate discrimination • Connecticut v. Teal – Conclusion reached from this case is that bottom line percentages are not determinative • Bottom line concept – When overall selection process does not have an adverse impact, the government will usually not examine individual components of that process for adverse impact or evidence of validity 2-31

32. Landmark Court Cases • Memphis Firefighters, Local 1784 v. Stotts • Although not banning use of affirmative action programs, this decision did indicate that a seniority system may limit use of certain measures • City of Richmond v. J. A. Crosan Company • Court stated that state and local governments must avoid racial quotas and must take affirmative action steps only to correct well-documented examples of past discrimination • Wards Cove v. Atonio • When minorities allege that statistics show they are victims of discrimination, employers only have burden of producing evidence that there is a legitimate reason for its business practices 2-32

33. Landmark Court Cases • Martin v. Wilks • White firefighters could bring reverse discrimination claims against court-approved affirmative action plans • Adarand Constructors v. Peña • Questioned constitutionality of government measures designed to help minorities obtain contracts, jobs, or education • State of Texas v. Hopwood • Concluded that the law school may not use race as a factor in law school admissions • University of Michigan’s Admission Procedures • Schools cannot maintain quotas or separate admissions tracts for racial groups and that diversity cannot be defined solely on the basis of race 2-33

34. Enforcement Agencies • Equal Employment Opportunity Commission • Federal agency created under Civil Rights Act of 1964 to administer Title VII of the act and to ensure equal employment opportunity; its powers were expanded in 1979 • Composed of five members, not more than three of whom may be members of the same political party • Members appointed by president of United States, by and with advice and consent of Senate, for a term of five years • General counsel of commission, appointed by the president with advice of Senate for a term of four years, is responsible for conducting litigation under provisions of Title VII 2-34

35. Enforcement Agencies • Responsibilities of Equal Employment Opportunity Commission • Originally was responsible for investigating discrimination based on race, color, religion, sex, or national origin • Now responsible for investigating equal pay violations, age discrimination, and discrimination against disabled persons • Has authority not only to investigate charges and complaints in these areas but also to intervene through general counsel in a civil action on behalf of an aggrieved party • Develops and issues guidelines to enforce nondiscriminatory practices in all of these areas 2-35

36. Enforcement Agencies • Office of Federal Contract Compliance Programs • Office within the U.S. Department of Labor that is responsible for ensuring equal employment opportunity by federal contractors and subcontractors • Established by Executive Order 11246 to ensure federal contractors and subcontractors follow nondiscriminatory employment practices • Prior to 1978, 11 different government agencies had contract compliance sections responsible for administering and enforcing Executive Order 11246; the OFCCP generally supervised and coordinated their activities • In 1978, Executive Order 12086 consolidated administration and enforcement functions within OFCCP 2-36

37. Summary of Learning Objectives • Define equal employment opportunity • Describe the intent of the Equal Pay Act of 1963 • Describe the intent of Title VII of the Civil Rights Act of 1964 • Define disparate treatment and disparate impact • Discuss the purpose of the Age Discrimination in Employment Act of 1967 • Discuss the purpose of the Rehabilitation Act of 1973 • Describe the intent of the Vietnam-Era Veterans Readjustment Assistance Act of 1974 • Discuss the purpose of the Pregnancy Discrimination Act of 1978 • Describe the intent of the Immigration Reform and Control Act of 1986 2-37

38. Summary of Learning Objectives • Describe the purpose of the Americans with Disabilities Act of 1990 • Explain the purpose of the Older Workers Benefit Protection Act of 1990 • Discuss the intent of the Civil Rights Act of 1991 • Explain the content of the Family and Medical Leave Act of 1993 • Discuss the purposes of Executive Orders 11246, 11375, and 11478 • Describe the significance of the following Supreme Court decisions 2-38