Employment Discrimination

Employment Discrimination A comprehensive national commitment to eliminate employment discrimination began with the enactment of Title VII of the Civil Rights Act of 1964, which followed in the wake of the civil rights movement and the assassination of President John F. Kennedy. Before that, race and gender discrimination in the workplace had not been systematically addressed.

Title VII prohibits employers and labor unions from discriminating against employees on the basis of race, color, religion, sex, or national origin. It establishes an administrative agency, the Equal Employment Opportunities Commission (EEOC), which is empowered to help individual claimants seek redress under the statute. However, the commission has limited powers, and plays a minimal role in most litigation under the statute.

The Supreme Court has shaped the meaning of Title VII. In an early and far‐reaching decision, Griggs v. Duke Power Co. (1971), the Court recognized the “disparate impact” doctrine. Until then, an employee could prevail under Title VII only by meeting the difficult burden of showing that the employer's conduct was motivated by racial or other prohibited considerations. In Griggs, the employer adopted testing and educational requirements that were barriers to black applicants and employees, given the poor education that they had received in segregated schools. The Court held that employees could prevail upon a showing that the requirements had the effect of excluding black applicants and employees on a disproportionate basis, and if the employer could show no business necessity for the requirements. The EEOC has issued guidelines for measuring whether tests are appropriate for the job, and this has helped eliminate the use of tests that have a discriminatory impact. Congress amended Title VII in 1991 to codify the disparate impact doctrine.

Title VII also applies to gender discrimination. A large proportion of gender discrimination cases involve claims of sexual harassment. Actionable sexual harassment is shown not only in cases where an employee's tangible employment benefits are affected by harassment, but where the employer fails to correct a hostile work environment. Sexual harassment claims by a worker against another worker of the same sex are also actionable under certain circumstances. Title VII does not prohibit discrimination based upon sexual orientation, although such discrimination is barred by some state and local governments.

In 1967, Congress added a separate statute prohibiting age discrimination (the Age Discrimination in Employment Act, or ADEA), designed to address the distinct problems of discrimination faced by older workers. The ADEA, as amended by the Older Workers Benefit Protection Act of 1990 (OWBPA), addresses such issues as voluntary early retirement incentive programs, downsizing of the work force that affects older workers, the appropriateness of calculating different levels of benefits in benefit and retirement programs on the basis of age, where the costs of certain fringe benefits, such as life insurance, increase with age, and the procedures and rules for obtaining waivers by employees of their rights under the ADEA, particularly in cases where the employee agrees to accept an enhanced benefit package in exchange for terminating his or her employment. The ADEA permits employers to take age into account in limited situations in which it is a legitimate factor, for example, a mandatory retirement age for pilots. This is known as a bona fide occupational qualification (BFOQ), a defense that applies to gender discrimination cases as well. The Court has not determined whether the disparate impact doctrine, so important in Title VII litigation, applies to age discrimination cases.

Congress enacted the Americans with Disabilities Act (ADA) in 1990. The ADA requires employers to make reasonable accommodations to qualified individuals with disabilities so long as those accommodations do not impose an “undue hardship” upon the employer. This may require the employer to modify job assignments and work schedules and provide reasonable equipment that helps a disabled employee to do the job. The effectiveness of the ADA has been somewhat curtailed by several Court decisions that have defined the term “disability” narrowly (for example, Sutton v. United Airlines, Inc., 1999). Moreover, in Board of Trustees v. Garrett (2001), the justices held that the Eleventh Amendment prohibited the application of the ADA against the states.

In an effort to achieve a workforce that is more reflective of the minority population, employers often develop affirmative action programs, sometimes in cooperation with unions that represent their employees. The Court held in United Steelworkers of America v. Weber (1979) that such a program is permissible under Title VII if it is designed to correct a societal pattern of discrimination, is temporary, and does not unduly limit the opportunities of nonminority employees. The decision affirmed the congressional policy of encouraging private efforts to comply with the goals of Title VII.

Affirmative action programs of public employers involve state action and are subject to the constraints of the Constitution. A court will not uphold an affirmative action program of a public employer unless there is a prior finding or at least an arguable claim that the employer has discriminated in the past, and the program is necessary to redress that prior discrimination. The Court has been reluctant to grant affirmative relief to minority workers at the expense of innocent nonminority employees. Some presidents have issued executive orders requiring affirmative action on the part of federal government employers or federal contractors.

Many employers require as a condition of employment that an employee agree to pursue any claims of discrimination in arbitration rather than in court. The Supreme Court has upheld this requirement, in Circuit City Stores, Inc. v. Adams (2001). It remains to be seen how extensive this practice will be, and whether employees are able to effectively vindicate their statutory rights through arbitration.

Robert J. Rabin