Until the mid-1900s, employment discrimination of many types was legal and commonplace. Moreover, there was little protection for the disabled against retaliation or for workers who organized in labor unions. 20th century legislation, however, promoting equality and equal opportunities for women and minorities in the workplace, has produced a labor force that is more diverse, better educated, and more egalitarian than previously thought possible.[i]
Laws directed at creating more diverse, inclusive workplaces often focus on increasing professional opportunities and reducing or ending pay disparities for historically disadvantaged groups. While substantial progress has been made in this regard, workplace discrimination remains a major issue. Our review provides some insight into issues of workplace discrimination and discusses some of the major aspects of federal and state anti-discrimination laws.
The Civil Rights Act of 1964
The Civil Rights Act of 1964, or “Title VII” as it is commonly referred to, is a comprehensive federal anti-discrimination law that prohibits discrimination on the basis of race, religion, gender, national origin, or family history. Title VII applies to all public and private employers who have at least 15 employees, though many states have passed laws that apply to smaller businesses, as well. Title VII prohibits all adverse employment actions against workers of a protected class that are done with discriminatory intent. Classes of employees protected by the Act and subsequent legislation include women, minorities, religious people, people with disabilities and people over age 40. These are categories of people who have been historically subjected to discriminatory or harassing conduct in the workplace.[ii]
The Role of the EEOC
To exercise Title VII rights, an employee who is a member of a protected class must file a claim with the Equal Employment Opportunity Commission, or “EEOC,” the federal agency responsible for enforcing most federal anti-discrimination laws. They may not go directly to the courts, but must first try to resolve the claim through the EEOC’s administrative process. Claims must be filed with the agency within 180 days of the alleged violation. Once the EEOC receives a complaint, it will investigate the allegations and attempt to find a mutually-agreeable resolution. If the EEOC discovers what it believes to be a Title VII violation and the agency cannot settle the issue with the employer amicably, the agency can sue the employer on behalf of the aggrieved employee. If the EEOC discovers no violation, the agency will notify the complaining employee of its decision and drop the case. Then, the employee may bring a civil suit against the employer.
Types of Discrimination Claims
Discrimination claims are typically based upon one of two theories: disparate treatment or disparate impact.[iii]
Disparate treatment claims revolve around an employer’s practice of intentionally treating members of a protected class differently than other employees or applicants. If an employee can present evidence sufficient to show that the employer treated him differently due to being a member of a protected class, the burden shifts to the employer to rebut the allegations. To avoid liability, the employer must come up with a legitimate, nondiscriminatory reason for the business decision that gave rise to the discrimination claim. Once the employer presents such a reason, the plaintiff employee can try to show that the reason offered by the employer is misleading and that the real reason for the disparate treatment was discrimination. Courts give deference to businesses in these circumstances, as businesses are generally free to hire and fire employees at will. An employer’s verifiable claim that it had a legitimate, nondiscriminatory purpose for the allegedly discriminatory action can typically be defeated only by showing that the reasoning was false or inconsistent.[iv]
Disparate impact claims focus on the adverse impact that an otherwise neutral policy may have on a protected class. Unlike disparate treatment claims, disparate impact claims arise when neutrally worded and applied policies create adverse impacts on protected classes. Once an employee presents evidence of an imposed policy that has a disparate impact on protected workers, the employer may defend the policy by showing that the policy is job-related and necessary for the regular operations of the business. Moreover, the employer must show that there are no less discriminatory alternatives.
Similarly, discriminatory policies are allowed if the policy is necessary to satisfy a “bona fide occupational qualification” or “BFOQ.” Whether a job requirement is a BFOQ depends upon all of the facts and circumstances surrounding the policy. Courts and enforcement agencies will look at the nature of the job and the employer’s business purpose and determine whether an employment decision that adversely impacts some workers is appropriate and relevant to the worker’s qualification for the job.[v] For example, health spas may consider gender when hiring locker room attendants and religious institutions may consider religion when hiring for management and leadership positions. In both cases, otherwise unacceptable hiring bases are allowed because membership in these classes is a bona fide occupational qualification.
Relief Available
If a Title VII claim is successful, the employer may be liable for damages. Damages may include lost wages, future wages payable to the affected employee until a set time, reinstatement of the claimant, promotions or increased wages, the provision of reasonable accommodations for a disability and any other action that would remedy the injury the employer caused to the worker’s career. If the EEOC or the courts find an employer acted with the intent to discriminate, the employer may be required to pay punitive damages, which are intended to punish the employer for its improper behavior. An amendment to the Civil Rights Act passed in 1991 imposed caps on the damages that can be awarded in a Title VII case of between $50,000 and $300,000 depending upon the size of the employer.[vi]
Discrimination Based Upon Race or National Origin
Racial discrimination occurs when managers do not hire or advance qualified employees of certain races.
Racial minorities have historically experienced discrimination in the workplace. In 1960, African Americans faced unemployment rates that were double those of white workers and were far more likely to be limited to low-wage opportunities. This was largely because there were no national laws preventing racial discrimination in employment. For nearly 100 years following the Civil War, employers openly discriminated against racial minorities in hiring, promotions, and compensation. The Civil Rights Act of 1964 prohibited employers from discriminating based on race or national origin. The Civil Rights Act remains one of the most important anti-discrimination laws on the books.[vii]
Racial discrimination continues to be an issue in the workplace. In one recent year, federal enforcement agencies recovered over $100 million on behalf of employees affected by workplace discrimination, harassment, and retaliation based on race. This figure does not include judgments against employers in civil courts. EEOC investigations have uncovered serious forms of racial discrimination in the workplace, including the display of hangman’s nooses and racist insignia and the open use of racial slurs and stereotypes at places of employment. While these sorts of explicit demonstrations of racism are unfortunately still present in some workplaces, racial discrimination in employment often takes a more nuanced form.
Disparate treatment of or disparate impact to a racial minority in any stage of the employment relationship can expose an employer to liability under the Civil Rights Act. The potential for discrimination exists at every level of employment from hiring to compensation, advancement, disciplinary action, and termination. To shield themselves from liability for racial discrimination under Title VII, employers should carefully monitor their human resources policies and practices and review employee advancement, compensation, and disciplinary records regularly to assess for possible disparate treatment of racial minorities. Employers are obligated by law to ensure that their businesses operate in a manner that ensures a nondiscriminatory environment.
Title VII also prevents employers from refusing to hire or from taking other adverse action against workers based on national origin. National origin often involves race, but it also covers all people who share social characteristics including common language, physical traits, or cultural activities. For example, if an employer refused to promote a qualified employee simply because he wore traditional ethnic clothing, the employer may have discriminated against the employee based on national origin. An employee’s actual citizenship or birthplace is irrelevant. National origin discrimination may be based its perception of the employee’s ethnic or family history.
Discrimination based on national origin is not quite as pervasive as racial discrimination, but it remains major workplace issue. The EEOC resolves well over 10,000 complaints of national origin discrimination per year.[viii]
Gender Equality in the Workplace
Workers’ rights advocates started promoting “equal pay for equal work” campaigns addressing gender inequality in professional compensation as early as 1898. The first national law addressing gender-based pay inequalities, the Equal Pay Act of 1963, was passed as an amendment to the Fair Labor Standards Act. The Equal Pay Act mandates that men and women performing the same work must earn equal pay, incentives, and benefits. Prior to 1950, only about one-third of women of working age participated in the labor force. Female workforce participation has nearly doubled since then, but allegations of inequality with respect to professional opportunities, status, and compensation remain.[ix]
Like other forms of workplace discrimination prohibited by the Civil Rights Act, the prohibition on gender discrimination extends to all phases of the employment relationship. Employers may not make adverse employment decisions based upon an individual’s sex or stereotypes about gender, and sexual harassment in the workplace is prohibited. Title VII’s prohibition on discrimination based on gender applies to both men and women, and transgender individuals were granted protections under this law in 2012.[x] As with race and national origin, gender discrimination remains a major issue with respect to hiring, compensation, and advancement in the American workplace, with over 30,000 federal civil rights enforcement charges of sex-based employment discrimination being resolved each year. Damages to workers based on gender discrimination total in the hundreds of millions of dollars per year.[xi]
Sexual harassment, a form of prohibited gender discrimination, has been defined by the Supreme Court as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” carried on in a workplace in a manner that affects employment or creates a hostile work environment. There are two types of sexual harassment that commonly form the basis of Title VII complaints. The first, “quid pro quo” – a Latin phrase that translates to “this for that” – occurs when an employee is subject to an adverse employment action or harassment because the employee either granted or refused sexual conduct at the workplace. The second and more generalized form of actionable sexual harassment occurs when unwanted sexual advances and other conduct of a sexual nature create a hostile work environment. Notably, isolated rude or offensive comments are insufficient to demonstrate that a work environment is hostile. Rather, an employee claiming that sexual harassment creates a hostile work environment must show that improper sexual behavior was so pervasive that it created an intimidating and offensive workplace environment. Alleged inappropriate behavior continues to be a major workplace issue despite shifts in cultural norms making inappropriate sexual behavior or comments less commonplace and less acceptable than they once were.[xii]
Title VII’s prohibition against gender discrimination applies to compensation as well, and equal pay between the genders remains a particularly pervasive issue.[xiii] Despite substantial progress in this area since the 1960s, disparity in average wages paid to men and women is common. Across the United States, women only make about 80 percent of the wages paid to men, though this varies by state. For example, women in Wyoming make only 64% of what is paid to their male counterparts, while female workers in New York and Delaware make about 89% of what men are paid. The pay gap is markedly increased for women who are racial or ethnic minorities, suggesting that these workers are particularly prone to improperly differential treatment. While many scholars argue that discrimination is not the only cause of the gender pay gap, unlawful disparate treatment may still play a major role.[xiv]
Title VII’s prohibition on gender discrimination also applies to pregnancy and related benefits. Thus, genders must be treated equally with respect to family leave. For example, maternity and paternity leaves are treated equally and this is reflected under the federal Family Medical Leave Act.
However, workplace discrimination based upon a worker’s status as a parent is not prohibited by any federal law. Family obligations have the potential to complicate work life, and the family status of a worker has been shown to be relevant to workforce participation. Immediately prior to the enactment of the Civil Rights Act’s anti-discrimination protections, only 21% of married women and only 17% of married mothers worked outside the home. By the mid-1990s, working outside the home increased to 70% among married mothers and over 60% among married women without children.[xv] Title VII’s prohibition on gender discrimination in the workplace has helped allow mothers professional opportunities, but adverse action against an employee based upon his or her family responsibilities is not directly prohibited by the law.
Equal Employment Opportunity law is evolving with respect to the prohibition of workplace discrimination based on sexual orientation, as sexual orientation discrimination now falls under the umbrella of Title VII-prohibited gender discrimination. The EEOC decided in 2015 that discrimination against an employee based upon his or her sexual orientation constitutes discrimination that is actionable under Title VII. This case held that the consideration of sexual orientation necessarily involves references to gender, and so sexual orientation discrimination constitutes prohibited sex discrimination.[xvi]
As of early 2017, 20 states and the District of Columbia had banned discrimination based on sexual orientation.[xvii] Though it is not an employment law case, a case before the Supreme Court in late 2017 may shed light on the effect of the Civil Rights Act on legal issues related to sexual orientation. The case involves a same-sex couple who attempted to purchase a wedding cake in Colorado, a state with broad anti-discrimination laws. The baker refused to sell the couple the wedding cake due to his religious beliefs, and the couple filed a discrimination claim against the baker. The baker was found liable under the Colorado Anti-Discrimination Act, as places of public accommodation are prohibited from discriminating based on sexual orientation. The baker has appealed the decision to the U.S. Supreme Court, arguing that the state’s anti-discrimination law creates an unconstitutional restriction on the plaintiff’s right to religious freedom.[xviii] Though this case does not involve employment opportunity or workplace discrimination, the Supreme Court’s decision in this case will impact future sexual orientation discrimination rules.
Religious Discrimination
There has been a disturbing trend indicating that workplace discrimination based upon religion is on the rise. Incidences of religious discrimination in the workplace reported to the EEOC increased 275% in a 20-year period starting in the 1990’s, and the agency recovers millions of dollars every year on behalf of thousands of affected workers. Federal civil rights laws prohibit workplace discrimination based upon religion to prevent workers from being placed in the difficult circumstance of having to choose between their beliefs and their livelihoods.
An employer is liable for religious discrimination if a complaining worker shows that she has a sincere religious belief that her employer was aware of and used as a basis for discriminatory treatment. Moreover, once an employer is made aware of an employee’s religious beliefs, the employer must offer reasonable accommodations to the employee to ensure that he can carry on with necessary job functions despite religious limitations. Whether an accommodation is reasonable depends upon the circumstances and the request. For example, an employee may be permitted to change shifts or take unpaid leave to attend religious services. However, religious accommodation is not required in circumstances where it creates an undue burden on the employer.[xix] To cite one obvious example, a network broadcasting college football games does not have to allow a Saturday Sabbath observer to hold a broadcasting job while taking off every Saturday.
[i] Boone, G. (2015, October). Labor law highlights, 1915-2015. Monthly Labor Review. Retrieved from https://doi.org/10.21916/mlr.2015.38.
[ii] Rassas, L. (2014). Employment Law: A Guide to Hiring, Managing, and Firing for Employers and Employees. 22-24. Frederick, MD: Wolters Kluwer.
[iii] Rassas, L. (2014). Employment Law: A Guide to Hiring, Managing, and Firing for Employers and Employees. 24-28. Frederick, MD: Wolters Kluwer.
[iv] Rassas, L. (2014). Employment Law: A Guide to Hiring, Managing, and Firing for Employers and Employees. 29-32. Frederick, MD: Wolters Kluwer.
[v] Rassas, L. (2014). Employment Law: A Guide to Hiring, Managing, and Firing for Employers and Employees. 34-39. Frederick, MD: Wolters Kluwer.
[vi] Rassas, L. (2014). Employment Law: A Guide to Hiring, Managing, and Firing for Employers and Employees. 43-44. Frederick, MD: Wolters Kluwer.
[vii] Boone, G. (2015, October). Labor law highlights, 1915-2015. Monthly Labor Review. Retrieved from https://doi.org/10.21916/mlr.2015.38.
[viii] Rassas, L. (2014). Employment Law: A Guide to Hiring, Managing, and Firing for Employers and Employees. 54-58. Frederick, MD: Wolters Kluwer.
[ix] Boone, G. (2015, October). Labor law highlights, 1915-2015. Monthly Labor Review. Retrieved from https://doi.org/10.21916/mlr.2015.38.
[x] Macy v. Holder, EEOC Appeal No.0120120821, 2012 WL 1435995 (Apr. 12, 2012) (declaring unanimously that anti-transgender bias qualifies as sex discrimination under Title VII).
[xi] Rassas, L. (2014). Employment Law: A Guide to Hiring, Managing, and Firing for Employers and Employees. 88. Frederick, MD: Wolters Kluwer.
[xii] Rassas, L. (2014). Employment Law: A Guide to Hiring, Managing, and Firing for Employers and Employees. 354-55. Frederick, MD: Wolters Kluwer.
[xiv] Miller, K. (n.d.). The Simple Truth about the Gender Pay Gap. Retrieved from American Association of University Women: http://www.aauw.org/research/the-simple-truth-about-the-gender-pay-gap.
[xv] Hoffman, S. (2009, February). The changing impat of marriage and children on women’s labor force participation. Montly Labor Review, pp. 3-14. Retrieved from https://www.bls.gov/opub/mlr/2009/02/art1full.pdf.
[xvi] David Baldwin v. Dep’t of Transportation, EEOC Appeal No. 120133080 (July 15, 2015), http://www.eeoc.gov/decisions/0120133080.pdf.
[xvii] American Civil Liberties Union. (n.d.). Past LGBT Nondiscrimination and Anti-LGBT Bills Across the Country. Retrieved from ACLU.org: https://www.aclu.org/other/past-lgbt-nondiscrimination-and-anti-lgbt-bills-across-country.
[xviii] Masterpiece Cakeshop, Ltd. v. ColoradoCivil Rights Commissionm, S.Ct. Docket 16-111 (2017).
[xix] Rassas, L. (2014). Employment Law: A Guide to Hiring, Managing, and Firing for Employers and Employees. 70-75. Frederick, MD: Wolters Kluwer.