Employment Regulation in the Workplace: Basic Compliance for Managers by Robinson, Franklin, and Wayland

1
Employment Regulation in the Workplace Basic
Compliance for Managersby Robinson, Franklin,
and Wayland

• Chapter 2
• Regulation of Equal Employment Opportunity
• Fall 2009

2
Learning Objectives

• Understand the evolution of equal employment
  opportunity laws in the context of American
  History
• Explain what employment practices are unlawful
  under Title VII.
• Identify the classes of employers and types of
  people required to comply with Title VII.
• Describe how an EEO complaint is filed with the
  EEOC or a fair employment practice agency.
• Explain how reasonable cause is determined by
  an investigative agency

3
Historical Overview

• Thirteenth Amendment to the Constitution (1865).
• Black codes - These laws imposed severe
  restrictions on freed slaves such as prohibiting
  their right to vote, forbidding them
  to sit on juries, carrying weapons in public
  places and working in certain occupations.

4
Historical Overview

• Civil Rights Act of 1866 - blacks were declared
  citizens and granted equal rights to contracts,
  suits, access to trials, purchases and
  properties, with penalties for violations of
  these rights. .
• Fourteenth Amendment to the Constitution (1868)
  -the Civil War Amendments (XIII, XIV, XV) were
  designed to "take away all possibility of
  oppression by law because of race or color."

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Historical Overview

• Civil Rights Acts of 1875 - all persons,
  regardless of race, color, or previous condition,
  were entitled to equal accommodation in "inns,
  public conveyances on land or water, theaters,
  and other places of public amusement.
• Plessy v. Ferguson, 163 U.S. 537 (1898) created
  the concept of separate but equal in public
  accommodation.

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Historical Overview

• Justice Harlans dissent in Plessy v. Ferguson,
  163 U.S. 537, 559 (1898).
• . . . in view of the Constitution, in the eye of
  the law, there is in this country no superior,
  dominant, ruling class of citizens. There is no
  caste here. Our Constitution is color-blind, and
  neither knows nor tolerates classes among
  citizens. In respect of civil rights, all
  citizens are equal before the law . . .The
  arbitrary separation of citizens is . . .
  inconsistent with the civil freedom and the
  equality before the law established by the
  Constitution. It cannot be justified upon any
  legal grounds.

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Historical Overview

• Brown v. Topeka Board of Education, 347 U.S. 483
  (1954) overturned Plessy.
• Civil Rights Act of 1964.
• Title VI requires that federal funds to
  institutions (including schools and other
  educational institutions) be withheld if
  institutions did not comply with the mandates of
  the Act.
• Title VII is the cornerstone of modern employment
  discrimination law.

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Two Views of EEO

• Individual
• Prospective
• Individual rights
• Protected Class-blind
• Anti-discrimination
• Equal treatment

• Group
• Retrospective
• Group rights
• Protected Class-conscious
• Compensatory/
• remedial
• Equal results

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Civil Rights Act of 1964

• Title VII - Equal Employment Opportunity
• 703 It shall be an unlawful employment practice
  for an employer
• (1) to fail or refuse to hire or to discharge any
  individual or otherwise to discriminate against
  any individual with respect to his compensation,
  terms, conditions, or privileges of employment,
  because of such individuals race, color,
  religion, sex or national origin.
• Source 42 U.S.C. 2000e-2(a).

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Civil Rights Act of 1964

• (2) 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 individuals race,
  color, religion, sex or national origin.
• Source 42 U.S.C. 2000e-2(a).

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Civil Rights Act of 1964

• Section 703(j) Nothing contained in this
  subchapter 703 shall be interpreted to
  require any employer subject to this subchapter
  to grant preferential treatment to any individual
  or to any group because of the race, color,
  religion, sex, or national origin of such
  individual or group on account of an imbalance
  which may exist with respect to the total number
  or percentage of persons of any race, color,
  religion, sex, or national origin employed by any
  employer

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Whites are a Protected Class

• Title VII is not designed to disadvantage a white
  complaining party. White is covered under the
  prohibition on discrimination based on race
  under Title VII
• Whites are entitled to the same protection under
  Title VII as any minority plaintiff. McDonald v.
  Santa Fe Trail Transportation Co., 427 U.S. 273,
  280 (1976).

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Protected Classes under EEO Laws

• Race
• Color
• Religion
• Sex
• National origin (Ethnicity)
• Age (40) (ADEA)
• Disability (ADA)

Title VII
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Practices That Can Result in Discrimination

• Recruiting
• Selection
• Promotions
• Transfers
• Layoffs
• Training
• Wages
• Benefits

• Terminations
• Work assignments
• Working conditions
• Apprenticeships
• Performance Appraisal

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Other Discriminatory Practices Include

• Harassment on the basis of race, color, religion,
  sex, or national origin.
• Retaliation against an individual for filing a
  charge of discrimination, participating in an
  investigation, or opposing discriminatory
  practices
• Employment decisions based on stereotypes or
  assumptions about the abilities, traits, or
  performance of individuals of a certain sex,
  race, age, religion, or ethnic group, or
  individuals with disabilities and
• Denying employment to individuals because of
  marriage to, or association with, an individual
  of a particular race, religion, or national
  origin.

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Employers Covered Under Title VII

• Private sector employers with 15 or more
  employees for 20 or more calendar weeks 42 U.S.C.
  2000e(b).
• All educational institutions (public or private).
• All labor unions with 15 or more members.
• All employment agencies (public private).
• All state and local governments.
• All joint (labor-management) committees for
  apprenticeship and training.
• Employees of the U.S. Congress (Civil Rights Act
  of 1991).

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15 or More Employees

• Arbaugh v. YH Corporation 546 U.S. 500 (2006).
• An employer may not raise the fact that he or she
  does NOT meet the Title VII 15-employee threshold
  once a verdict has been rendered.
• It is the responsibility of the employer to know
  if he or she is a covered entity.

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'Employee''

• The term ''employee'' means an individual
  employed by an employer, except that the term
  ''employee'' shall not include any person elected
  to public office in any State or political
  subdivision of any State by the qualified voters
  thereof, or any person chosen by such officer to
  be on such officer's personal staff, or an
  appointee on the policy making level or an
  immediate adviser with respect to the exercise of
  the constitutional or legal powers of the office.

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'Employee''

• The exemption set forth in the preceding sentence
  shall not include employees subject to the civil
  service laws of a State government, governmental
  agency or political subdivision. With respect to
  employment in a foreign country, such term
  includes an individual who is a citizen of the
  United States.

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Employers NOT Covered Under Title VII

• The term employer does not include
• The United States Government or any corporation
  wholly owned by the federal government (except
  Congress, 1991).
• Any Indian tribe.
• Any employer having fewer than fifteen employees.
• Elected officials.
• Personal staff of elected officials.

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Equal Employment Opportunity Commission

• Enforces
• Title VII
• ADA
• Equal Pay Act
• ADEA
• 501 and 505 Rehabilitation Act.

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Current Members of the EEOC

• Stuart J. Ishimaru , Acting Chair Bush - 2012
• Commissioners
• Constance S. Barker Bush - 2011
• Christine M. Griffin Bush 2009
• Commissioner Vacant
• Commissioner Vacant
• Two of the EEOCs performance measures are the
  size of monetary benefits for victims and number
  of cases litigated.

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Equal Employment Opportunity Commission

• Agency Composition in FY2007 (Permanent Work
  Force 2,149)
• Women 67.04
• Male 32.96
• Non-Hispanic Whites 38.56
• Blacks 42.95
• Hispanics 13.31
• Asians 3.59
• Hawaiian Native/Pacific Islanders 0.14
• American Indians/Alaskan Natives 0.70
• Two or more races 0.75
• Source http//www.eeoc.gov/federal/fsp2005/profil
  es/27-eeoc.html

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Charges Filed
Deferred to FEPA EEOC Processes
Complaint Interviews Complaining Party (CP)
Requests Information from Respondent (May
Include On-Site Interview) Investigator
Analyzes Evidence and Drafts Summary of Evidence
Pre-Determination Interview (Usually With Party
That the Decision Will Probably Rule Against)
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EEOC Issues Letter of Determination
No Cause (No Further EEOC Involvement) Note
CP may still request a Permit to Sue
Reasonable Cause (EEOC will attempt to settle
Charge informally through Conciliation) Unsuccess
ful Successful Conciliation
Conciliation EEOC or CP Has Right to
Bring Suit
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Deferrals and 706 Agencies

• EEOC can choose to turn a complaint over to a
  State Fair Employment Practice Agency (FEPA)
  having jurisdiction over the alleged
  discrimination for investigation and resolution.
• Because these deferrals are authorized under
  706 of the Civil Rights Act of 1964, State FEPAs
  are sometimes referred to as 706 agencies.

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Examples of FEPAs

• Commission on Human Rights and Opportunity (CT)
• Commission on Human Relations (FL)
• Office of Fair Employment Practices (GA)
• Human Rights Commission (ID)
• Civil Rights Commission (IA)
• Commission on Equal Rights of Citizens (NV)
• Industrial Commission, Anti-Discrimination
  Division (UT)

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Deferrals and 706 Agencies

• Nine state FEPAs are not approved for deferral
• Alabama
• Arkansas
• Georgia
• Kentucky
• Louisiana
• Mississippi
• North Carolina
• North Dakota
• Virginia
• Source 29 C.F.R. 1601.80

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Investigation Outcomes

• No reasonable cause
• Dismissal Administrative Closure
• Reasonable cause

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Reasonable Cause

• The EEOCs investigation has found enough
  evidence to believe that an unlawful employment
  practice has occurred.
• Sufficient evidence to establish a prima facie
  case.
• (29 C.F.R. 1601.21)

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No Cause

• As the term implies, there is not sufficient
  evidence found in the investigation to establish
  that an unlawful employment practice has
  occurred.
• (29 C.F.R. 1601.19)

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No Cause Determinations
Total Charges
2005 2006 2007 2008
Charges 75,428 75,768 82,792
95,402
Change -5.0 0.5 9.3
15.3
No Cause 62.2 61.2 59.3 58.2

Dismissals 16.4 16.6 17.8 20.5
Total 78.6 77.8 77.
78.7
Administrative Closures
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Dismissal

• Dismissal, a.k.a. Administrative Closures.
• The EEOC stops the investigation. A complaint
  may be dismissed for one of the following
  reasons
• The complaint was not made in a timely manner.
• gt300 days after a violation of a state covered
  practice
• gt 180 days after a violation of Title VII.
• The complaining party could not be located after
  the charge was filed.

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Dismissal

• The complaining party fails to provide the EEOC
  with requested information.
• The complaining party refuses to appear at
  scheduled interviews.
• The complaining party refuses to otherwise
  cooperate with the investigation.
• Source 29 C.F.R. 1603.107

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Litigation

• If the parties cannot agree to conciliation then
  litigation is a likely outcome.
• The EEOC may choose to litigate on behave of the
  CP but scare resources limit this to
• Cases with large monetary outcomes.
• Cases which will provide precedent for future
  EEOC actions.
• More often, the EEOC issues a notice of right to
  sue to the CP who is then left to secure legal
  counsel on his or her own.

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Frivolous Appeals

• An appellate action is frivolous when the result
  of the appeal is obvious or the arguments of
  error are wholly without merit.
• If it can be clearly shown that a party has made
  an appeal that is blatantly meritless, the court
  may assess double legal costs to the party making
  the frivolous appeal and that partys attorney.
• Source Carmon v. Lubrizol Corp., 17 F.3d 791,
  795 (5th Cir. 1994)

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Two Types of Discrimination

• Disparate Treatment (intentional discrimination).
• Different standards for different individuals.
• Disparate Impact (unintentional discrimination).
• The same standards with different outcomes for
  different groups.

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Steps in Case Analysis

• Step 1 What law applies to the situation?
• Step 2 Is the employer covered--an "employer"
  under that statute?
• Step 3 Was it filed in a timely manner?
• Step 4 Is the employee covered (some employees
  may be exempted)?
• Step 5 Apply the prima facie.
• Step 6 Employer's rebuttal
• Step 7 Employee's rebuttal