FGCU Equal Opportunity & Diversity Affairs (text version)

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I. EQUAL EMPLOYMENT OPPORTUNITY LAWS AND REGULATIONS OUTLINE.

14th Amendment of the United States Constitution - guaranteed due process and equal protection under the laws.

The Civil Rights Act of 1866, Section 1981 - covers race-based discrimination by employers. Individuals may sue to assert their rights under this Act, which, unlike Title VII, has no limitation on back-pay liability.

The Civil Rights Act of 1871, Section 1983 - provides persons who believe they have been deprived of any rights, privileges or immunities secured by the Constitution and laws redress and holds those responsible for the deprivation liable to the person injured.

Equal Pay Act of 1963 - forbids pay differentials based on sex. It covers all employees who come under the Fair Labor Standards Act, plus executive, administrative and professional employees and outside sales people. Investigation and compliance responsibilities were transferred from the Labor Department to the EEOC on July 1, 1979.

Title VII of the 1964 Civil Rights Act - bans discrimination in employment because of race, color, religion, sex or national origin. It covers all terms and conditions of employment, and it holds employers responsible for any discrimination that goes on within the employee's organization. Title V~ is administered by the EEOC and covers employers with 15 or more employees.

Age Discrimination in Employment Act - bans employment discrimination because of age against anyone 40 years of age and older. (also known as ADEA) Investigation and compliance responsibilities were transferred from the Labor Department to the EEOC on July 1, 1979.

Executive Order 11246 - requires federal contractors to include a nondiscrimination clause in all contracts and subcontracts in excess of $10,000 and all construction projects financed, even in part, with federal funds. Revised Order No. 4 requires a written affirmative action program from contractors with 50 or more employees and contracts of $50,000 or more. This order is enforced by the Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor.

Rehabilitation Act of 1973, Section 503 - requires employers with government contracts and subcontracts of $2,500 or more to take affirmative action for qualified handicapped individuals. The regulations implementing the Act require "reasonable accommodation" to the physical and mental limitations of handicapped employees and applicants. Section 504, as interpreted by, HEW, covers the employment practices of all recipients of federal financial assistance - a broad spectrum of agencies and institutions, from private employers operating under a federal grant, to public schools, colleges and universities. Enforced by the OFCCP.

Pregnancy Discrimination Act - amends Title VII and states that employment, discrimination based on pregnancy, childbirth and related medical conditions is prohibited under Title VII. According to EEOC, the amendment, which affects those employers under the jurisdiction of Title VII, requires that "persons affected by pregnancy, childbirth and related medical conditions be treated the same as persons affected by other temporary disabilities."

Americans With Disabilities Act of 1990 - The ADA gives protections to qualified individuals with disabilities that are like those provided under Title VII. It also guarantees equal opportunity in employment, public accommodations, transportation, state/local government services and telecommunication. Enforced by the EEOC.

The Civil Rights Act of 1991 - Allows employees to seek compensatory and punitive damages and for trial by jury (this amends Title VII).

II. UNLAWFUL DISCRIMINATION

Laws prohibit discrimination based on membership in a protected class:

Unlawful discrimination makes a distinction in treatment by:

III. BURDEN OF PROOF

A. On charging party (plaintiff): to make a prima facie case:

  1. Be a member of a protected class
  2. Apply for a vacant position
  3. Be qualified
  4. Be rejected
  5. A discrimination statement (persuasion) - a reason to believe that class membership is more likely than not the reason for rejection.

B. On respondent (defendant): rebuttal

  1. Legitimate non-discriminatory reason
  2. Bona fide Occupational Qualification (BFOQ)
  3. Business necessity, based on safety or efficiency

C. Charging party - show pretext

IV. THEORIES OF DISCRIMINATION

A. Disparate Treatment - less favorable treatment of similarly situated individuals because of their race, color, religion, sex, age or national origin.

Proof of Disparate Treatment
  1. Comparative Evidence: Similarly-situated individuals are treated differently because of their membership in a protected class.
  2. Statistical Evidence: Shows the normal and customary practice rather than the unusual.
  3. Direct Evidence: Any statement by an official that indicates a bias against members of a protected class. Types of direct evidence include:
B. Disparate Impact - Employer practices and policies that are neutral on their face but have a disparate impact on protected groups. The focus is on the consequences of the employment practices, not the motive.

Proof of Disparate Impact
  1. Plaintiffs must prove that an employment practice, neutral on its face, has the effect of excluding protected groups in significant numbers.
  2. Employers' options when employment practice(s) have disparate impact are to modify or justify the practice(s).
    1. Modify - Change the employment practice so that the adverse impact is eliminated.
    2. Justify - Validate the employment practice, job-relate the practice and show lack of alternative practice. (Business necessity: must be sufficiently compelling to override any disparate impact, usually only because of the safety and efficiency of an organization.
C. Perpetuation of Past Discrimination the effects of past discrimination continue even though there is a neutral employment system. Examples:
  1. "Word of mouth" recruitment policy by an all-white, male, etc., workplace
  2. Hiring preference for previous workers or former employees' children when previous workers are all white or male, etc.
  3. Policy that prohibits transfers from previously segregated departments.
D. Accommodation (affirmative duty) requires employer to make reasonable accommodation for:
  1. Religious practices of employees unless to do so would create "an undue hardship on the conduct of the employer's business."
  2. Disabled individuals - hiring, placement and advancement unless to do so would create an undue hardship.
E. Retaliation - prohibits discrimination against employees who have filed a charge, who have participated in an investigation of a charge or who have opposed an unlawful employment practice.

V. REMEDIES OF DISCRIMINATION

A remedy is intended to make a person whole.

  1. Back pay - restore plaintiff to their proper position.
  2. Front pay - when remedial affirmative relief is not immediately obtainable
  3. Affirmative relief - quotas to eliminate the discrimination
  4. Attorney fees
  5. Injunctive relief - enjoin or prohibit practice until courts have an opportunity to review
VI. RACE/SEX CONSCIOUSNESS

The Courts have continued to uphold race/sex conscious affirmative action plans that meet the following guidelines:

  1. Must be designed to eliminate a conspicuous racial imbalance.
  2. Affirmative action plan (AAP) must be designed to break down old patterns of racial segregation.
  3. Does not trammel the interest of white employees in that the AAP:
    1. does not require the discharge of white workers and their replacement with blacks
    2. is a temporary measure
    3. is not intended to maintain racial balance, but to eliminate a racial imbalance

     


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