Federal Antidiscrimination Laws

The first law passed by Congress that impacted the employment relationship was the
Civil Rights Act of 1866. This law literally gave all citizens the right to enter into contracts as
“white citizens.” Although this terminology may sound racist, it is important to interpret this
language within its historical context. The year 1865 marked the end of the Civil War and the
abolition of slavery. Congress’s intent in passing this law was to ensure that the former slaves
enjoyed freedom in their lives and were able to obtain gainful employment on an equal basis
with Caucasians. Congress, however, was a bit naive in assuming that just because it passed a
law, employers would comply. No remedies for unjust treatment were provided in this law
when it was passed. Not surprisingly, racial discrimination did not end upon passage of the
law; however, those discriminated against had no recourse. Consequently, Congress passed
the Civil Rights Act of 1871, which gave individuals the right to sue if they felt that they had
been deprived of their rights under the Civil Rights Act of 1866.

Equal Pay Act

Nearly a century passed before Congress ratified another law aimed at protecting
workers from discrimination in employment. In 1963, Congress passed the Equal Pay Act,
which prohibits wage discrimination based on sex or gender for jobs that require equal skill,
effort, and responsibility and are performed under similar working conditions. In short, it
states that women cannot be paid less than men for doing the same jobs. However, more
than 50 years have passed since the passage of this act, and women still make, on average,
somewhere around 80–85 cents on the dollar of what men make.
One reason for this discrepancy is that Congress provided four exceptions, or
exclusions, to the law. If satisfied, these conditions allow an employer to legally pay women
less than men. The first exception is a bona fide seniority system. When compensation is
based on seniority and men have held jobs longer than women, pay differentials are
legitimate. Throughout American labor history, Congress and the courts have readily
embraced the idea of seniority as a legitimate criterion in making employment-related
decisions because it is an objective standard. The term “bona fide” in describing a seniority
system refers to the fact that the seniority system must not be selfserving as a means of
facilitating wage discrimination. It must be an existing, legitimate, and enforced system of
managing various aspects of employee relations.
The second exclusion to the Equal Pay Act is differences in quality of performance. If
the employer can show that men perform at higher levels than women, then the pay
differential is justified
The third exception to the law is pay plans that are based on quantity of output.
Traditionally called “piece-rate” systems in manufacturing organizations, compensation is
based on how much an individual produces.
The final exception is for “factors other than sex.” Although this term is often treated
with cynicism, Congress realized when passing the law that it could not anticipate every
possible contingency that might arise in establishing a basis of equity in pay.

Civil Rights Act of 1964

The following year, Congress passed the Civil Rights Act of 1964, which is often
regarded as being
the single-most important piece of social legislation of the twentieth century. The act is
broken into a number of different sections, called titles; Title VII pertains to employment. As
a result, when referring to this particular Act, most employers, policymakers, and members
of the legal and judiciary communities simply refer to it as “Title VII.”
Title VII prohibits discrimination in employment based on race, color, religion, sex, and
national origin. Conditions of employment included under Title VII include hiring, firing,
promotion, transfer, compensation, and admission to training programs. Title VII applies to
all private employers with 15 or more employees as well as state and local governments,
colleges and universities, and employment agencies and labor unions.
The law also established the Equal Employment Opportunity Commission (EEOC),
which was charged with overseeing Title VII. Because many employees could not afford the
kind of costly legal counsel that their employers could, the playing field was hardly level.
Consequently, Congress saw a need to establish a federal agency to enforce federal labor
laws and receive employee complaints. In addition to Title VII, the EEOC is also charged with
oversight of the Equal Pay Act of 1963 and all other federal labor laws.

Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act (ADEA) of 1967 prohibits employment

discrimination against employees who are aged 40 or older and prohibits the setting of
mandatory retirement ages (although mandatory retirement ages are allowed in some
occupations that deal with public safety). This Act was amended in 1990 by the Older
Workers Protection Act, which prohibits employers from discriminating based on age when
providing benefits to employees or from asking older workers to sign waivers of any future
age discrimination claims when being laid off.
The EEOC—as well as the federal government—has oversight of this law, which
applies to all employers covered under Title VII in addition to the federal government. The
ADEA has been frequently cited in actions against employers who conduct any kind of large
scale layoffs or reductions-in-force. If a disproportionate percentage of employees being
terminated are over the age of 40, an ADEA challenge is likely. Typically, large-scale layoffs
attempt to reduce layers of management, often eliminating one of several layers of mid-
management employees who are likely to be predominantly over the age of 40.

Rehabilitation Act of 1973

The Rehabilitation Act of 1973 prohibits discrimination by organizations with federal

contracts against applicants or employees who are handicapped. It should be noted that by
requiring compliance only by federal contractors, the majority of private employers are not
covered under this Act. The Act has a three-pronged definition of what constitutes an
individual with a handicap:

1. An individual with a physical or mental impairment that substantially limits one or

more major life activities
2. An individual with a history or record of such impairment
3. An individual regarded as having such an impairment. The act requires individuals
with these conditions to be “otherwise qualified” to perform job responsibilities (in
 spite of their handicap) in order to receive protection against discrimination and also
requires employers to provide “reasonable accommodation” to such qualified
individuals with handicaps

Pregnancy Discrimination Act of 1978

The Pregnancy Discrimination Act of 1978 prohibits employers from discriminating

against pregnant employees by requiring employers to allow pregnant employees to take
leave for pregnancy and childbearing, as it would for any other medical condition. In short,
the law requires the employer’s existing policy on disability leave to be extended to include
pregnancy. This act does not require the employer to reinstate the employee in the same
job upon return from leave and does not allow the employer to determine the dates of
leave. It further prohibits employers from refusing to hire or promote because of pregnancy
or from providing health insurance plans that do not cover pregnancy.

Americans with Disabilities Act of 1990

The Americans with Disabilities Act (ADA) of 1990 greatly extends the protection first
offered under the Rehabilitation Act. The act covers all public and private employers with 15
or more employees and utilizes much of the same language as the Rehabilitation Act. The
ADA’s definition of disability is adapted from the Rehabilitation Act, and the ADA retains the
Rehabilitation Act provisions for being “otherwise qualified” and providing “reasonable
accommodation.”
The extension of the coverage of the Rehabilitation Act under the ADA to so many
additional Americans with disabilities has resulted in a flood of litigation. The courts have
found many of the provisions of the ADA to be quite ambiguous and open to interpretation.
ADA has provided more than 43 million Americans with disabilities wide protection against
discrimination in employment and in other areas of their lives, the statute as it stands is very
vague, flexible, and open to the interpretation and whim of the courts. One recent study
concluded that despite more than 20 years of ADA protection strong perceptions still exist in
both workplaces and society concerning both mental and physical disabilities, which
prohibit the goals of the ADA from being realized.
Since the passage of the ADAAA, there has been a marked increase in telework as a
reasonable accommodation for employees with disabilities. This is largely attributable to the
fact that the ADAAA expressly provides protection to individuals to a much broader segment
of the workforce, particularly those who have short-term or episodic impairments who
might be unable, for example, to drive to work yet still remain able to perform their job
responsibilities. As an increasing number of employers see the benefits of telework, as
discussed in Chapter 6, telework will probably continue to be utilized increasingly as an
accommodation for employees with disabilities.

Civil Rights Act of 1991

Congress extended the rights of individuals protected under Title VII when it passed
the Civil Rights Act (CRA) of 1991. This law has four specific provisions that amend the
coverage of Title VII:
 1. It extends the protection of Title VII to federal government employees
2. It allows litigants to sue for compensatory and punitive damages, in addition to back
pay, benefits, and attorney’s costs
3. it requires a heavier “burden of proof” on the part of employers in rebutting claims
of unlawful discrimination; and
4. it provides for “extraterritorial enforcement” of federal labor laws, protecting U.S.

Employees on overseas assignments unless compliance would violate laws of the

foreign country where the employee is on assignment. The additional protection and
benefits offered to employees under the CRA of 1991 have resulted in a dramatic increase in
Title VII filing with the EEOC.

Family and Medical Leave Act of 1992

The Family and Medical Leave Act (FMLA) of 1992 requires employers to provide up
to 12 weeks unpaid leave for the birth, adoption, or serious illness of a child, family
member, or the employee during any 12-month period. It only covers organizations with 50
or more employees. In order to receive protection, an employee has to have been employed
a minimum of 25 hours per week for one year, or 1,250 hours in total. Employees whose
salaries are among the highest 10 percent of the employer’s workforce do not receive FMLA
protection.
The employer is required to continue the employee’s group health insurance during
the leave, and the employee must be allowed to return to the same job or an equivalent
position upon returning to work. The employer may require that the employee utilize any
accrued vacation or sick time as part of the leave. It is important to remember that this law
sets a minimum federal standard for compliance. Any organization is obviously free to
provide more generous options, such as longer leave, paid leave, or other accommodations,
such as working at home when the leave time period has been completed.
However, despite its family-friendly provisions, the FMLA provides far less extensive
coverage than comparable laws of other industrialized countries. European countries, for
example, tend to be far more generous in both the length of the leave that they provide as
well as the compensation and benefits offered to employees.
The study found that guaranteed paid parental leave for new parents as well as for
those with a sick child would be nothing to jeopardize the United States economic position.
With more than half of working Americans not covered under the FMLA, the United States
lags woefully behind all other developed countries in considering support for working
families.
While the terms of the FMLA are relatively straightforward, implementation of the
provisions of the statute are quite challenging because of the fact that most individual
states have their own leave laws, many of which provide more generous coverage than the
FMLA. The FMLA expressly states that its terms do not supersede any terms of comparable
state or local laws that pertain to employee leave. Consequently, if a state provides more
generous leave than the FMLA, the state statute requirements must be met as long as they
are not in violation of any terms of the FMLA.
The most common areas of disparity between state leave laws and the FMLA are
those involving coverage; namely, which employers are covered, which employees are
protected, and what specific types of leave are covered.
Genetic Information Nondiscrimination Act of 2008

The Genetic Information Nondiscrimination Act (GINA) of 2008 prohibits the use of
genetic information in decisions related to health insurance and employment. Genetic
discrimination takes place when an individual is treated unfairly because of the makeup of
his or her DNA might increase the likelihood of contracting a certain disease.
The challenge for employers in attempting to comply with GINA is that an employer
might inadvertently discover information about an employee or applicant that could be the
basis for a discrimination claim. While few, if any, employers collect genetic information or
data as part of the screening and employment process, there is a more covert side of GINA,
which would apply to almost any employer. Inquiring about the health status of a blood
relative of an employee could trigger a GINA charge, regardless of motive. If an employee’s
father, for example, was diagnosed with prostate cancer, inquiring about the father’s health
or treatment and/or whether the employee himself had been tested could trigger a GINA
claim, even if the inquiry was a means of showing concern or support for the employee and
his or her family

Enforcement of Federal Laws Under the EEOC

As previously mentioned, Title VII created the EEOC to oversee and enforce federal
labor laws. Any individual who feel that their rights under Title VII have been violated may
file a complaint with the EEOC in an attempt to remedy the situation.
The first requirement is that the charge be filed within 180 days of the alleged
discriminatory act. The charge can be filed with the federal EEOC office or a state or local
agency responsible for overseeing claims of employment discrimination. If charges are
initially filed with a state or local agency and the complainant is dissatisfied with the
outcome, the individual may refile the charge with the EEOC within 30 days of the initial
decision.
The EEOC will then investigate the complaint to determine if there is reasonable
cause to believe that discrimination has occurred. If no cause is found, the complaint will be
dismissed, although the complainant still retains the right to hire a private attorney. If cause
is found, the EEOC will notify the employer of the charge and attempt to mediate the
dispute with the employer on behalf of the complainant.
In proving illegal discrimination, the burden of proof first falls with the employee or
applicant to establish a prima facie case. Prima facie means “on the surface” or “at first
look,” and prima facie status is established by showing either disparate treatment or
disparate impact. It should be noted that disparate treatment/impact is sometimes referred
to as adverse treatment/impact.
Disparate or adverse treatment happens when an employee is treated differently
from others based on some dimension of protected-class status, such as age, race, sex,
religion, national origin, or disability. Disparate or adverse impact is a bit more subtle.
Once the complainant has established disparate treatment or impact, the burden of
proof then shifts to the employer to provide a legally justifiable, nondiscriminatory reason
for the action.
There are essentially four ways in which an employer can rebut a prima facie case :
The first is through showing job-relatedness. To do this, the employer illustrates that the
criteria utilized to select applicants is essential for performance of the job. Proving job-
relatedness is not easy; employers usually have to perform validation studies of tests or
other criteria used to screen applicants or provide performance data of past employees to
support their contentions.
The second means is by claiming a bona fide occupational qualification (BFOQ) defense. This
defense requires the employer to explain why it is essential for the employee to be a
member of a certain group.
The third defense is a bona fide seniority system. As previously discussed, courts support
the use of seniority in employment decisions because of the objectivity of seniority. As long
as the system is bona fide, meaning it was not set up to discriminate or perpetuate
discrimination, seniority systems are a justifiable defense.
The final defense is “business necessity.” This defense requires the employer to show that
the criteria used are essential to the safe and efficient operation of the enterprise. However,
the courts have rejected business necessity claims that were based on profitability or other
economic concerns of the business owners. Instead, this condition applies more to factors
related to the safety of employees and customers.
Although the EEOC has broad oversight of federal antidiscrimination laws, it does not
serve as a judiciary authority and has limited power over employers. It is empowered by
Congress to perform only a conciliatory role between employers and those who file
discrimination charges and relies on the federal court system to enforce charges it brings
against employers. Currently, the EEOC has a backlog of tens of thousands of cases because
it is being called upon to play a different role than that envisioned by Congress when it
passed Title VII. This backlog is severely undermining Congress’s intentions to have
discrimination-free workplaces.
Perhaps the EEOC initiative that has had the most impact on resolving discrimination
charges against employers has been its voluntary mediation program. While the program
has been in existence since the early 1990s, it really had not had a tremendous impact until
the new chair decided to emphasize its use. Mediation involves the employee and employer
attempting to resolve their differences outside of a courtroom through the assistance of an
EEOC mediator. The process is designed to be fair, impartial, and unbiased and has met with
resounding success.

Strategic Plan of the Equal Employment

Opportunity Commission

1. Prevent discrimination through education and partnerships with other like-minded

organizations
2. Efficiently track and resolve charges of discrimination, evaluate data, and report
trends to employers
3. Develop efficient working relationships between attorneys and investigators for
more strategic enforcement and litigation
4. Expand the mediation program and increase use of external mediators
5. Become a model workplace and an example for the private sector to follow

Executive Orders

In addition to federal laws that regulate the employment relationship, certain

employers are required to comply with executive orders. Executive orders are issued by the
president and apply to all federal agencies and organizations with federal contracts.
Executive Orders 11246 and 11375, taken together, prohibit those organizations from
discriminating against the same protected classes that Title VII does. Compliance with
executive orders is overseen by the Office of Federal Contracts Compliance Programs
(OFCCP), an agency of the U.S. Department of Labor, which performs similar investigatory
functions as the EEOC. However, unlike the EEOC, the OFCCP actively monitors compliance
with laws and executive orders instead of waiting for employees or job applicants to file
complaints. The OFCCP also has enforcement power, unlike the EEOC, allowing it to levy
fines and punishments, including revocation of the federal government contracts