Exceptional Proff 602
Employment Discrimination — Part 1
LESSON TOPICS
· Disparate Treatment vs. Disparate Impact
· Title VII of the Civil Rights Act of 1964
· Race
· Color
· Religion
· Sex
· National Origin
INTRODUCTION
The employment sphere is rife with legal obstacles for businesses in every industry. Among the most common and most damaging, however, are issues involving discrimination in employment decisions. Although discrimination is an issue with which societies all around the world are wrestling, for the purposes of this class we will be focusing primarily on United States law, policy, and opinion.
Disparate Treatment vs. Disparate Impact
The employment sphere is rife with legal obstacles for businesses in every industry. Among the most common and most damaging, however, are issues involving discrimination in employment decisions. Although discrimination is an issue with which societies all around the world are wrestling, for the purposes of this class we will be focusing primarily on United States law, policy, and opinion.
· DISPARATE TREATMENT
· Disparate treatment is the type of discrimination that is patently obvious and intentional. For example, if an employer adopts a policy of refusing to hire African Americans because they are African Americans, this is disparate treatment. The policy’s intent and effect is to discriminate based on a protected class (we will discuss which classes are protected later in our lesson).
· DISPARATE IMPACT
· Disparate impact, however, is much more subtle, and often more difficult for employers to detect. Even when rules are applied neutrally, in the formal sense, the effect can adversely impact a protected class resulting in disparate impact.
· DISPARATE IMPACT: AN EXAMPLE
· Perhaps the pre-eminent example of disparate impact came in the form of the literacy test laws enforced in the United States during the 19th and 20th centuries (Fairchild, 1917). Under these laws, individuals were prohibited from participating in voting if they could not pass a basic literacy test. Now, it is important to recognize that on their faces, these laws were not discriminatory; they applied equally to people of every distinction. However, what was apparent about the effect of these laws was that they significantly discriminated against African Americans. At the time of their use, the average African American in the United States had significantly less education than his or her white counterpart, and as such, the literacy laws disproportionately barred African Americans from the voting booths to the advantage of the white population. The political dispositions of the states which adopted these laws, and the dubious nature of the tests themselves, were conclusive evidence of the legislative intent (Onion, 2013). Consequently, these literacy test laws were repealed, and others like them have been since precluded from passage, on the basis that even if a law’s mandates are facially neutral, should they have the effect of substantially discriminating based on a protected class, then the law is illegal on the basis of disparate impact discrimination.
The most important thing to remember throughout the course of these discussions is that subjective interpretations of discrimination do not have any bearing on that which the law has determined to be discrimination. Our own personal values and moral compasses, no matter how strongly they may try to guide our choices, are not the measure of that which is right and wrong in the professional business environment, and they are certainly not the measure of that which is legal and illegal. In this lesson, we will be reviewing the specific bases for discrimination which have been prohibited by law, and also those which have not.
Title VII of the Civil Rights Act of 1964
In addition to outlawing discrimination at the voting polls, in schools, and in places of public accommodation, Title VII of the Civil Rights Act of 1964 also prohibits employment decisions made on the basis of race, color, religion, gender, and national origin (Equal Employment Opportunity Commission, n.d.-k). Title VII was very much the product of the movement for racial equality led by Dr. Martin Luther King in the early 1960’s. However, obviously, the law prohibits more than simply racial discrimination. The logical reasoning for the inclusion of the five attributes protected by the law (and the exclusion of others) was that these attributes — with the exception of religion — were largely considered to be immutable characteristics or qualities that cannot readily be changed at the discretion of the individual.
Race
Racial discrimination is prohibited in all employment actions. Although the federal government elucidates established races in certain initiatives such as the national census, it is important to note that any and all races are protected from discrimination, and race has further been interpreted to include ethnicities such as an individual’s “Hispanic” quality (Equal Employment Opportunity Commission, n.d.-g). Using one’s marriage to or other affiliation with members of a particular race is also prohibited by law.
With respect to the disparate impact context, certain grooming policies that specifically disadvantage a particular race (e.g. shaving policies covering African Americans who suffer pseudo folliculitis barbae) are also usually construed as discriminatory if reasonable accommodations for such conditions — when possible — are not made. Human resources professionals should ensure that employment policies support the principle of racial equality and that rules regarding issues relating to biological elements, such as grooming, are sensitive to racial peculiarities.
Color
As with race, color is also barred as a basis for discrimination. Courts have generally construed “color” to mean a person’s skin color, shade, or pigmentation (Equal Employment Opportunity Commission, n.d.-d). Whether “color” could extend to other attributes such as hair color or eye color is, as yet, unclear. However, typically natural hair color and/or eye color is closely correlated to one’s skin color and/or race, so it is likely that any policy attempting to discriminate on these peripheral characteristics would also be illegal as forms of disparate treatment discrimination (Equal Employment Opportunity Commission, n.d.-d). Human resources professionals should ensure that all employment policies are neutral with respect to dimensions of color.
Religion
Religion is a third class protected by Title VII. As with race, there are no bona fide religions in the eyes of the law. Because religions are, by their nature, faith-based non-evidentiary belief systems, and because of the strong emphasis on “separation of church and state” in the foundation of the American government, the law deliberately declines to identify any “real” religions (Equal Employment Opportunity Commission, n.d.-h). Therefore, it is important for human resource managers to remember that religious beliefs of employees or potential employees must be respected, notwithstanding their popularity or believability.
However, respect is not the same thing as accommodation.
Although an employer may not discriminate against employees or candidates based on religious belief, if an individual’s religion also requires them to act or refrain from acting in particular ways (e.g. prayer at certain scheduled times of day, attending mass on a day of worship, refraining from working on the Sabbath, etc.), then this obviously complicates the matter.
In these cases, employers are mandated by law to make “reasonable accommodations” in the interest of permitting the free exercise of religious beliefs.
REASONABLE ACCOMMODATIONS
REASONABLE PERSON
It is important to note that the “reasonable” standard is based on the obscure legal concept of the “reasonable person,” and courts hardly agree on the characteristics that comprise such a person. Therefore, employment law professionals and/or attorneys generally turn to case law precedent in relevant jurisdictions for guidance in these matters.
Sex
Discrimination based on sex is also prohibited under Title VII. Traditionally, the attribute of “sex” has been construed to mean one’s gender (Equal Employment Opportunity Commission, n.d.-i). However, more recent case precedent has established that sex may also be interpreted to include the concept of gender identity which protects transgender persons and sexual orientation which protects lesbian, gay, and bisexual persons (Equal Employment Opportunity Commission, n.d.-b). Nonetheless, case law is not always dispositive in deciding future disputes, and the federal government has not yet passed legislation codifying employment discrimination protection for the LGBT community. Consequently, as is often the case, many states have taken it upon themselves to enact their own legislation, prohibiting one or both types of discrimination in the workplaces over which they exercise control.
GENDER-BASED PAY DISCRIMINATION
Gender-based pay discrimination has also been the subject of much public debate and legislation. The Equal Pay Act of 1963 was enacted to address the issue followed in 2009 by the Lilly Ledbetter Fair Pay Act. Due to the typical confidentiality of compensation details, violations were and are hard to identify. Salaries in the private sector are not widely reported, the extent of gender based pay discrimination today is not fully known.
Data suggests it is still a very pervasive concern with women earning on average 77 cents on the dollar as compared to men (National Women’s Law Center, 2013). Human resources managers should audit their own organization’s pay scales frequently to ensure that such discrimination is not taking place, and closely watch the evolution of relevant laws in the political sphere.
1963
THE EQUAL PAY ACT
Enacted as an amendment to the Fair Labor Standards Act and requires that all employers pay equal wages to women and men (Equal Employment Opportunity commission, n.d.-j).The Equal Pay Act set the statute of limitations for claims at 180 days from the first instance of discrimination, which meant that if an employee first discovered gender-based pay discrimination six or more months after the discrimination first began, they were precluded from bringing suit.
2009
LILLY LEDBETTER FAIR PAY ACT
President Barack Obama signed into law in 2009 the Lilly Ledbetter Fair Pay Act which changed the statute of limitations starting point from the date of first discrimination to the date of first discovery by the employee (Equal Employment Opportunity commission, N.d.-a).
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National Origin
The final class protected by Title VII is national origin, and protections include the prohibition of discrimination based on an individual’s country of origin, as well as their country of heritage or ethnicity (Equal Employment Opportunity Commission, n.d.-f). However, the law also prohibits discrimination against other factors that may be a product of one’s national origin or heritage. For example, it is illegal to discriminate based on one’s accent (Equal Employment Opportunity Commission, n.d.-c). This is profoundly important for service industries assessing the qualifications of employees or candidates for customer-facing positions.
It is understandable for companies to desire employees who are coherent and comprehensible in their verbal communication, particularly on phone calls wherein parties don’t have the benefit of nonverbal cues such as body language and facial expressions to aid in interpretation. It could be argued that this communication quality is a business necessity, and policies requiring a certain standard of fluency in English are probably reasonable and permissible.
On the other hand, adopting a policy of refusing to employ individuals with accents would most certainly be in violation of anti-discrimination laws. Of course, the point exactly at which an accent becomes so obstructive that it effectively prevents an individual from performing a job is, of course, a matter of great subjectivity, and this is why human resource professionals should stay abreast of current case law.
THE IMMIGRATION REFORM AND CONTROL ACT
A tangential issue to national origin is citizenship. The Immigration Reform and Control Act (IRCA) of 1986 prohibits discrimination against employees based on their citizenship status. However, the IRCA also requires employers to complete the I-9 process for all new hires. This process requires employers to validate government-issued identification of new hires. The information gathered is sent to United States Citizenship and Immigration Services under the Department of Homeland Security, where it is used to verify that the new hire has a legal right to work in the U.S. Because of the IRCA and I-9 process, a common misconception is that employers may never hire employees who are not either U.S. citizens or legal resident aliens. Employers are, in fact, permitted to hire and employ foreign workers, though doing so typically requires filing a petition with the United States Department of Labor and demonstrating that the type of employee needed could not be reasonably acquired within the domestic labor pool (United States Citizenship and Immigration Services, n.d.).
Conclusion
In this week’s lesson, we introduced the concept of workplace discrimination, distinguished between disparate treatment and disparate impact, and reviewed the five distinct classes protected by the Civil Rights Act of 1964. In next week’s lesson, we will discuss some other bases for discrimination added to the list of federal protections since then.
References
American Civil Liberties Union (n.d.) Non-discrimination laws: State by state information - map. Retrieved from https://www.aclu.org/map/non-discrimination-laws-state-state-information-map
Equal Employment Opportunity Commission (n.d.-a). Equal Pay Act of 1963 and Lilly Ledbetter Fair Pay Act of 2009. Retrieved from http://www.eeoc.gov/eeoc/publications/brochure-equal_pay_and_ledbetter_act.cfm
Equal Employment Opportunity Commission (n.d.-b). Facts about discrimination in federal government employment based on marital status, political affiliation, status as a parent, sexual orientation, and gender identity. Retrieved from http://www.eeoc.gov/federal/otherprotections.cfm
Equal Employment Opportunity Commission (n.d.-c). Facts about national origin discrimination. Retrieved from http://www.eeoc.gov/eeoc/publications/fs-nator.cfm
Equal Employment Opportunity Commission (n.d.-d). Facts about race/color discrimination. Retrieved from http://www.eeoc.gov/eeoc/publications/fs-race.cfm
Equal Employment Opportunity Commission (n.d.-e). Facts religious discrimination. Retrieved from http://www.eeoc.gov/eeoc/publications/fs-religion.cfm
Equal Employment Opportunity Commission (n.d.-f). National origin discrimination. Retrieved from http://www.eeoc.gov/laws/types/nationalorigin.cfm
Equal Employment Opportunity Commission (n.d.-g). Race/color discrimination. Retrieved from http://www.eeoc.gov/laws/types/race_color.cfm
Equal Employment Opportunity Commission (n.d.-h). Religious discrimination. Retrieved from http://www.eeoc.gov/laws/types/religion.cfm
Equal Employment Opportunity Commission (n.d.-i). Sex-Based discrimination. Retrieved from http://www.eeoc.gov/laws/types/sex.cfm
Equal Employment Opportunity Commission (n.d.-j). The Equal Pay Act of 1963. Retrieved from http://www.eeoc.gov/laws/statutes/epa.cfm
Equal Employment Opportunity Commission (n.d.-k). Title VII of the Civil Rights Act of 1964. Retrieved from http://www.eeoc.gov/laws/statutes/titlevii.cfm
Fairchild, H. P.. (1917). The literacy test and its making. The Quarterly Journal of Economics, 31(3), 447–460. Retrieved from http://www.jstor.org/stable/1883384
Gray, K. G. (2012). The difference between disparate impact and treatment. Human Resource Executive Online. Retrieved from http://www.hreonline.com/HRE/view/story.jhtml?id=533349910
National Women’s Law Center (2013). Lilly Ledbetter Fair Pay Act. Retrieved from http://nwlc.org/resources/lilly-ledbetter-fair-pay-act/
Onion, R. (2013). Take the impossible “literacy” test Louisiana gave black voters in the 1960s. Slate. Retrieved from http://www.slate.com/blogs/the_vault/2013/06/28/voting_rights_and_the_supreme_court_the_impossible_literacy_test_louisiana.html
Talbot, M. (2010). Is sexuality mutable? The New Yorker. Retrieved from http://www.newyorker.com/news/news-desk/is-sexuality-immutable
United States Citizenship and Immigration Services (n.d.). Immigration Reform and Control Act of 1986 (IRCA). Retrieved from https://www.uscis.gov/tools/glossary/immigration-reform-and-control-act-1986-irca