Non-Discrimination Policy

1. Purpose

The Civil Rights Act of 1964, as amended was primarily enacted to eradicate racial prejudices and oppression that African-Americans faced in four major areas: employment, housing, and public accommodation, and voting. Congress stated that the Act was intended to: enforce the Constitutional right to vote, to confer jurisdiction upon the district courts...to provide injunctive relief...against discrimination in public accommodations...to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education and to establish a Commission Equal Employment Opportunity (78 Stat. 241, Public Law 88-352).

2. Coverage

• Voting rights
• Employment discrimination
• Public accommodation
• Housing discrimination
• Discrimination in Federal programs

3. Scope

Major provisions of the Civil Rights Act of 1964:

Title I	Voting Rights
Title II	Public Accommodation
Title III	Desegregation of Public Facilities
Title IV	Desegregation of Public Education
Title V	Commission on Civil Rights
Title VI	Nondiscrimination in Federally-assisted Programs
Title VII	EQUAL EMPLOYMENT OPPORTUNITY
Title VIII	Registration and Voting Statistics
Title IX	Intervention and Procedure after Removal in Civil Rights Cases
Title X	Establishment of Community Relations Service

B. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

1. Legislative History

The legislative history of the Civil Rights Act of 1964 documents that African-Americans and other protected class individuals (i.e., women and various minority groups) were historically denied employment opportunities because of their race, color, sex, religion, and national origin. As a result, minorities and women received lower wages and their rate of unemployment was higher than the country's overall rate of unemployment.

In an effort to curtail employment discrimination, Congress enacted Title VII of the Civil Rights Act in 1964. "Congress enacted Title VII to improve the economic and social conditions of minorities and women by providing equality of opportunity in the work place."

(EEOC Affirmative Action Guidelines)
During Congressional hearings on Title VII, Senator Hubert Humphrey, a sponsor of the Act, stated "the crux of the problem is to open employment opportunities for [black Americans] in occupations which have been traditionally closed to them".

2. Purpose, Coverage, and Scope

a. Purpose

• Congress' purpose in enacting this Title "was to achieve equality of employment opportunities and remove barriers that operated in the past to favor an identifiable group of white employees over other employees". (Griggs vs. Duke Power)

b. Title VII of the Civil Rights Act prohibits employment discrimination, on the basis of race, color, sex, religion, and national origin.

• In 1972, educational institutions and state and local governments were covered.
• Religious educational institutions and associations are exempt with respect to the employment of individuals of a particular religion in work connected with carrying on their activities.

c. Scope
This Act made it unlawful for those employers covered by Title VII:

• to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin: or
• to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

3. Excluded Employment Practices

Section 703 of Title VII provides for a limited number of employment practices which otherwise might violate Title VII, to be permissible. They include:

• A consideration of sex, religion, or national origin, if based upon a bona fide occupational qualification (BFOQ).
• Bona fide seniority system.
• Professional developed tests are not unlawful for an employer to use if they are not designed or intended to discriminate [Title VII - 703(h)]

4. BFOQ Proviso

Section 703(e)(1) of Title VII provides a limited number of circumstances when employment decisions maybe based on an individual's sex, religion, and national. In these limited situations the employer must prove that such consideration is based upon "A Bona Fide Occupational Qualification reasonable necessary to the normal operation of the particular business."

• EEOC Guidelines on BFOQ
  The EEOC issued guidelines interpreting the BFOQ defense as it relates to sex classifications. These guidelines also have applied to classifications based on national origin and religion.
• A summary of the Guidelines:
  • The BFOQ defense will be interpreted narrowly.
  • General assumptions about women and stereotypical characterizations of the sexes does not meet the BFOQ standard.

C. CIVIL RIGHTS ACT OF 1866

1. Legislative History

After the Civil War, Congress passed a number of laws to protect the rights of African-Americans who were recently freed from slavery and guaranteed rights under the 13th and 14th Amendments to the Constitution. The primary statutes were the Civil rights Acts of 1866 and 1871.

2. Purpose, Coverage, and Scope

a. Purpose

• To ensure equality for the newly freed slave.
• The Civil Rights Act of 1866 was passed to implement the protection of the 13th Amendment.

b. Coverage

• The Civil Rights Act of 1866 provided: "All persons within the jurisdiction of the United States shall have the same right...to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens."
• The language of this ACT was codified in 42 U.S.C.A._ 1981. The Supreme Court in Runyon vs. McCrary, 427 U. S. 160 (1976) interpreted _ 1981 as prohibiting race discrimination in hiring - as hiring involves "the making and enforcement of a contract".

• Prohibit discrimination on the basis or race and national origin (not sex).
• Does not require state action
• Must prove intentional discrimination
• Does not apply to disparate impact cases.
• Applies to private action.

3. Similarities/Differences with Title VII:

Title VII vs. Section 1981

TITLE VII	SECTION 1981
Requires complaints to be filed with EEOC or through other administrative processes.	No filing of administrative complaint required.
Employer must have 15 employees.	No limitation.
Must receive right to sue letter.	No waiting period to sue.
Applies to disparate impact cases.	Does not apply to disparate impact cases.
Must file charge within 180/300 days.	No statue of limitations; thus you look at comparable state statute.
Covers: race, color, sex, national origin.	Covers only race and national origin, religions.

D. AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)

1. Legislative History

With a high rate of unemployment among older workers, Congress was compelled to address the problem of age discrimination.

Congress' response to eradication age discrimination was the enactment of the Age Discrimination in Employment Act of 1963 (ADEA).

The ADEA initially only protected employment applicants and employees between the ages of 40 and 65 from adverse employment action because of their age. The ADEA also prohibited an employer from discriminating among individuals who were in the protected class group. Individuals filing charges under the ADEA has included a large number of white males.

2. Purpose, Coverage and Scope

a. Purpose

• To protect individuals within the age group from discrimination which would prohibit their full employment.
• To permit older workers an opportunity to reach their full potential as workers.

b. Coverage
Who is covered by the Age Discrimination Act?

• Private Employers with 20 or More Workers
• Federal, State and Local Governments
• Employment Agencies
• Labor Organizations with 25 or More Members

• The Age Discrimination in Employment Act of 1967
  40-65
• The Age Discrimination in Employment Act:
  Amendments of 1978
  40-70
• The Age Discrimination in Employment Act:
• Amendments of 1986
  40 or over

3. Exclusions

a. Bona fide executives or high policy making individuals who have been in the position for at least two years and will receive annual retirement benefits at least $44,000 can be required to retire at 65 years of age.
b. Law Enforcement Officers and firefighters can be forced to retire if there was state or local legislation which existed on March 31, 1983 requiring such retirements. (Must not be a subterfuge for discrimination.) This proviso expired on December 31, 1993.
c. Tenured faculty members in higher education at age 70 could have been required to retire without violating the ADEA until December 31, 1993. This proviso expired and was not extended by Congress.

4. Older Workers Benefit Protection Act of 1990, Pub. No. 101-433.

The Act establishes requirements for release/waivers of age discrimination claims under the Age Discrimination Employment Act and reverses the U.S. Supreme Court decision in Public Employee Retirement System of Ohio vs. Betts, 109 S. Ct. 2854 (1989)

The court in Betts had held that age-base difference in a benefit plan need not be justified on the basis of cost.

a. The Act adopts the EEOC's Interpretive regulations on cost justification. The EEOC guidelines permit an employer to reduce benefits of older workers if it can be justified because of cost.
b. The Act prohibits age discrimination in benefits, including such benefits provided pursuant to a bona fide employee benefits plan, except when age based reductions in employee benefit plans are justified by significant cost considerations.

E. AMERICANS WITH DISABILITIES ACT

1. Legislative History

During Congressional hearings on the ADA, Congress reviewed and considered various reports which studied the nature and extent of discrimination against people with disabilities. Congress concluded that these and other studies supported the following basic conclusions:

• Historically, individuals with disabilities have been isolated and subjected to discrimination and such isolation and discrimination is still pervasive in our society;
• Discrimination still persists in such critical areas as employment in the private sector, public accommodations, public services, transportation, and telecommunications;
• Current federal and state laws are inadequate to address the discrimination faced by people with disabilities in these critical areas;
• People with disabilities as a group occupy an inferior status socially, economically, vocationally, and educationally; and
• Discrimination denies people with disabilities the opportunity to compete on an equal basis with others and costs the United States, state and local governments, and the private sector billions of dollars in unnecessary expenses resulting from dependency and non-productivity.

2. Purpose, Coverage, and Scope

a. Purpose of the ADA

• To ensure that Americans with disabilities gain social and economic status.
• To ensure that individuals with disabilities are permitted to compete on an equal basis absent discrimination and prejudice.
• To establish a "national" policy for eliminating discrimination against individuals with disabilities.
• To provide clear and concise standards for enforcing the national policy.
• To ensure that the Federal Government has a central role in enforcing the standards established by the ADA.

b. Coverage

• TITLE I. Employment
  Prohibits employment discrimination against individuals with a covered disability.
• TITLE II. Public Services
• TITLE III. Public Accommodations and Services Operated by Private Entities.
• TITLE IV. Telecommunications
• TITLE V. Miscellaneous Provisions

c. Scope

• Prohibits discrimination against individuals with a mental or physical disability.
• In the areas of employment, public service, public accommodations, and telecommunications.

3. Title I of the ADA

a. Coverage

• Employers - 15 or more employees
• Employment Agencies
• Labor Organizations
• Joint Labor-Management Committees

b. Effective Date

• July 26, 1992 for employers with 25 or more employees.
• July 26, 1994 for employers with 15-24 employees.

4. Reasonable Accommodation

a. Unlike the prohibition of discrimination on the basis of race, sex, color, and national origin provided for in the Civil Rights Act of 1964, Title I of the ADA requires employers to do more than just prohibit discrimination on the basis of an individual's disability.
b. Title I imposes an affirmative duty on employers to reasonably accommodate an individual with a disability unless it would create an undue hardship on the employer's business operation, or it is too costly.
c. The issues of reasonable accommodation and undue hardship have been the most reoccurring disputes before courts interpreting state handicap discrimination laws and the Rehabilitation Act.
d. The difficulty of complying with state and federal laws seem not to be a result of employers having a recalcitrant disposition toward such laws, but that it is difficult to identify what constitutes reasonable accommodation and what sufficiently establishes undue hardship.

5. Integration in the Workplace Requirement

a. In addition to prohibiting assignment of disabled individuals to dead-end positions, the ADA requires employers to integrate individuals with disabilities into the mainstream on non-work activities, and to ensure accessibility to available activities.
b. The Congressional Committee Report cites, for example, that lunchrooms and break rooms should be accessible, and that individuals with disabilities should have the opportunity to take breaks and eat lunch with co-workers.