EEO Law and Personnel Practices

Arthur Gutman, Laura L. Koppes, Stephen J. Vodanovich

• Publisher: Psychology Press
• Year: 2010
• ISBN:
  9781136677885
• Edition: 3
• Topic: Business
• Subtopic: Business Law
• Index: Business

The goal of this well known book is to provide methods for understanding major EEO laws, including the Civil Rights Act of 1964, the Equal Pay Act of 1963, and the American with Disabilities Act of 1990. Also included are over 700 cases involving federal case law that focus on issues relating to the terms and conditions of employment. New to this t

Chapter 1

An Introduction to EEO Law

Introduction

EEO stands for “Equal Employment Opportunity.” EEO law is a branch of labor law that focuses on workplace discrimination based on race, color, religion, sex, national origin, age, and disability. Title VII of the Civil Rights Act of 1964 (or simply, Title VII) is the most comprehensive EEO law, protecting five of these classes—race, color, religion, sex, and national origin. Other EEO laws augment or overlap with Title VII in key places or borrow key Title VII principles to protect the other two classes—age and disability.

The overall objective of this book is to integrate the EEO laws with the personnel selection practices to which they apply. The goal of this chapter is to: (1) overview the US legal system; (2) introduce, through Title VII, a schema for understanding all EEO laws; (3) introduce general procedures for civil trials; (4) overview other major EEO laws apart from Title VII; and (5) introduce the Civil Rights Act of 1991 (or CRA-91), which has been a major influence on all EEO laws.

Section I The US Legal System

The US Constitution defines the legislative, executive, and judicial branches of federal government and the ground rules for creating and amending laws. Most states have constitutions and three-branch systems like the federal system. In addition, federal and state governments rely on agencies to regulate and administer laws.

The US Constitution

After the American Revolutionary war, the 13 colonies were loosely joined under the Articles of Confederation. Devastated by the recent tyrannical rule of the British king, the Articles created 13 sovereign states and a weak central government that lacked a chief executive officer. Functioning much like 13 independent republics, the states suffered financially and were vulnerable to military invasion. Therefore, ratification of the Constitution was, necessary, but not necessarily joyous. Ratified in 1789, the Constitution contains seven articles. Embedded in these articles are key rules by which the federal and state governments interact.

Articles I–III of the Constitution define the three branches of federal government, and Articles IV and V address states’ rights and constitutional amendments, respectively. Article VI addresses prior debt, treaty procedures, and required oaths, and Article VII defines the ratification process (i.e., 9 of 13 states had to approve).

Critically, Article IV delegates control of interstate matters to the federal government, leaving (or implying) that other state matters are under the jurisdiction of the states. There are two important checks on states’ rights. The Commerce Clause in Article I permits federal regulation of trade with foreign nations and among states; it also serves as the basis for federal laws that protect private sector employees. The Supremacy Clause in Article VI permits the federal government to override state and municipal laws that contradict federal laws.

As the Revolutionary War was fought for individual rights, the states feared a strong central government nearly as much as a foreign king. Therefore, the states, though reluctantly agreeing to the Commerce and Supremacy Clauses, retained the right to amend the Constitution. At present, there are 27 amendments. The first 10 amendments, known as the Bill of Rights, were added two years after the Constitution was ratified (in 1791). The most recent amendment (on salaries of Congressmen and Senators) was added in 1992. Among the Bill of Rights, the most important for EEO purposes is the 5th amendment, which grants due process from federal prosecution and permits citizens to sue federal agencies for workplace violations. Other Bill of Rights amendments have had more surgical effects. For example, the 1st amendment limits Title VII coverage of religiously affiliated institutions.

Among amendments 11–27, the most important for EEO purposes are the 11th (sovereign state immunity, 1798), the 13th (prohibition of slavery, 1865), and the 14th amendments (equal protection of federal rights for all citizens by all states, 1868). Both the 13th and 14th amendments fueled statutes in the post-Civil War era that were not applied to EEO issues until after Title VII was enacted. The 14th amendment also permits the federal government to override the 11th amendment of state sovereign immunity and, therefore, is the primary reason why federal laws (like Title VII) may protect state employees.

The Three Branches of Federal Government

The legislative role in lawmaking is obvious to most people. Less obvious are the executive and judicial roles. In fact, as we will see throughout the book, it is difficult to implicate only one federal branch in the history or evolution of any one EEO law.

Legislatively, bills approved by the Senate and House of Representatives are either endorsed or vetoed by the President. Despite the odds (two-thirds in both houses), Congress overrode an EEO veto in 1987 (the Civil Rights Restoration Act of 1987) and nearly did so in 1990 (the aborted Civil Rights Restoration Act of 1990). Once law, a statute may be amended for various reasons. For example, in 1972, Congress amended Title VII to protect federal, state, and municipal employees (it had originally protected only private employees), and in 1991, Congress again amended Title VII (and other key EEO statutes) in CRA-91. Most recently, Congress overturned several Supreme Court rulings relating to the Americans with Disabilities Act (ADA) in 2008.

Executively, besides lawmaking and appointments to federal agencies and courts, the President also writes executive orders. For example, President Johnson altered the EEO landscape in 1965 by issuing Executive Order 11246 (or EO 11246) on affirmative action. As another example, President Carter issued a sweeping executive order in 1978 empowering the Equal Employment Opportunity Commission (EEOC) to administer most EEO statutory laws.

Judicially, federal district courts conduct trials within each of 12 regions of the country. Circuit Courts within these regions hear appeals, and the Supreme Court reviews (or grants certiorari) on a variety of issues, including, most notably, the constitutionality of laws, conflicting rulings among Circuit Courts, and conflicts among states. Courts generally rely on past rulings (i.e., stare decisis) to guide subsequent rulings. For example, in a much anticipated 1992 abortion ruling (Planned parenthood v. Casey), a landmark ruling on abortion as a fundamental right (Roe v. Wade, 1973) was upheld only because one Supreme Court justice (Anthony Kennedy) refused to alter the Roe precedent, even though he was on record as being opposed to Roe. In general, given the scarcity of Supreme Court rulings (roughly 100 a year), many precedents follow from lower court rulings, and regional variation among Circuit Courts is important to track.

Federal Agencies

Most people are aware of American history, the US Constitution, and the three branches of federal government. Less obvious, however, is the work of agencies that administer laws. As laws are never whole and complete, agencies are needed to write regulations and guidelines to interpret them. Technically speaking, regulations have more force than guidelines because they are dictated by statute. However, practically speaking, courts often defer to both regulations and guidelines. In general, agencies try to resolve conflicts short of litigation.

The three most important federal agencies for purposes of this book are the EEOC, the Office of Contract Compliance Programs (OFCCP), and the Department of Justice (DOJ). It should be noted that the Merit System Protection Board (MSPB) provides alternatives for laws administered by the EEOC for administering complaints by federal agency employees.

The EEOC is an independent agency mandated by Title VII that administers several EEO laws, including Title VII, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967 (ADEA), parts of the Rehabilitation Act of 1973 (Rehab-73), and the ADA. Each of these laws permits remedies for individual claims. The EEOC attempts to resolve these claims short of litigation, and on occasion, prosecutes private claims in federal court. However, with one exception, only a federal court may impose the remedies. The one exception, as dictated by CRA-91, is that the EEOC may impose remedies on federal agencies. This power was upheld by the Supreme Court in West v. Gibson (1999), where the EEOC awarded Title VII compensatory damages to an employee in the Department of Veterans Affairs.

The OFCCP is a branch of the Department of Labor (DOL) that administers EO 11246 for private, state, and municipal entities. The EEOC administers EO 11246 as it applies to federal agencies. Unlike the statutory laws administered by the EEOC, victims of discrimination have no right to sue under EO 11246. Rather, the OFCCP's main purpose is to gain voluntary compliance from private, state, and municipal entities that enter into procurement or construction contracts with the federal government. Like the EEOC, the OFCCP also attempts to resolve disputes. However, unlike the EEOC, the OFCCP may impose remedies on contractors prior to court action.

The DOJ interfaces with the EEOC and the OFCCP (and other agencies). Its role in EEO law was greatly reduced by President Carter's sweeping Reorganization Plan in 1978. The DOJ specializes in litigation against public entities and in private sector EEOC cases that reach the Supreme Court. The DOJ also writes regulations when coordination among other agencies is required, and it may also prosecute employers who provide false or misleading information to other agencies.

Section II Six Dimensions for EEO Laws

There are two major reasons why EEO laws are complex. First, they overlap in some places, but not in others. Second, even when there is overlap, the coverage is never exactly the same across laws. Therefore, six dimensions will be used to understand better each law. The purpose of this section is to illustrate each dimension from the perspective of Title VII. Key dimensional features of other EEO laws covered in this book will be summarized later in Section IV. As a preface to the immediate discussion, it is important to recognize that Title VII has been amended several times since 1964. The most critical of these amendments are contained in the EEO Act of 1972, President Carter's Reorganization Plan in 1978, and CRA-91. Table 1.1 depicts the status of each of the Title VII dimensions in accordance with these amendments.

Dimension 1: Protected Classes

Title VII prohibits discrimination based on race, color, religion, sex, and national origin. By modern standards, race and color are synonyms. However, modern statutes maintain the race–color distinction because nineteenth-century statutes treated color as mainly black and white and race as either ethnicity (e.g., Arabs and Jews) or national origin (e.g., Swedes and Germans). Therefore, by 19th-century standards, race and color incorporated religion and national origin. Critically, Title VII protects all members of each class (e.g., women and men, as well as minorities and nonminorities).

Table 1.1 The Six Dimensions for Title VII

D1: Protected classes	Race, color, religion, sex, and national origin. All members of each class are protected.
D2: Covered entities	Private, state, local, and federal entities that employ 15 or more employees in each of 20 weeks of current or prior year.
D3: Covered practices	Nondiscrimination (terms/conditions, segregation/ classification, and retaliation) and religious accommodation.
D4: Administrative procedures	EEOC procedures: statute of limitations = 300 days in deferral states and 180 days in nondeferral states.
D5: Remedies	Equitable relief and capped legal relief
D6: Juridical scenarios	McDonnell–Burdine and mixed-motive scenarios for individuous disparate treatment, class-wide pattern or practice; adverse impact; statutory defenses, including BFOQ, BFSS, and undue hardship for sincerely held religious beliefs.

Dimension 2: Covered Entities

When originally enacted, Title VII covered only private entities with 25 or more employees, with exemptions for higher education, religious institutions, and Native American reservations. The EEO Act of 1972 extended Title VII coverage to state, local, and federal entities, reduced the number of employees required for coverage to 15, eliminated the education exemptions, and strengthened the exemptions for religious institutions. CRA-91 added coverage of overseas subsidiaries of American companies, and extended coverage to Congress. Therefore, besides some narrow exclusions, Title VII covers the vast majority of private, state, local, and federal employers with 15 or more employees for 20 or more weeks in the current or prior year.

It should be noted that attempts to circumvent the 15-employee rule have generally f...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• Foreword
• Preface
• 1 An Introduction to EEO Law
• 2 Major Title VII Judicial Scenarios
• 3 Major Title VII Protected Class Issues.
• 4 Constitutional Claims
• 5 The Equal Pay Act of 1963
• 6 The Age Discrimination in Employment Act of 1967
• 7 Affirmative Action
• 8 The Americans with Disabilities Act of 1990
• 9 Retaliation
• Glossary of Legal Terms
• Cases Cited
• References
• Author Index
• Subject Index