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The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition

The Leadership Conference on Civil and Human Rights  & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition
Civil Rights 101 - Leadership Conference on Civil Rights Education Fund - 2001

Employment Discrimination

ACCESS TO EQUAL EMPLOYMENT OPPORTUNITY has long been key to realizing the American dream. Yet, for too long, African Americans and other minorities were locked out of much of the American workplace -- denied jobs because of their race, segregated into lower-paying jobs, victims of pay discrimination and racial harassment.

Title VII of the Civil Rights Act of 1964 offered the promise of equal employment opportunity by prohibiting job discrimination on the basis of race, color, religion, sex, and national origin. No longer could employers discriminate in hiring, firing, promotions, pay, and other employment decisions.

UNDER TITLE VII, discrimination victims must first file administrative charges with the Equal Employment Opportunity Commission (EEOC), which investigates the charge and determines whether there is reason to believe that discrimination has occurred. At that point, the EEOC may choose to continue to resolve -- and, if need be, litigate -- the case, or the plaintiff may choose to file a lawsuit in federal court.

THE SUPREME COURT'S DECISION IN I971 in Griggs v. Duke Power further bolstered Title VII's effectiveness by making clear that it prohibited employment practices that had a discriminatory effect, regardless of whether they were motivated by discriminatory intent. In Griggs the Court held that business practices that have an adverse impact on minorities and that are not required by business necessity violate the law, even if the employer did not intend to discriminate.

TITLE VII's enactment -- aided by the courts' generally broad interpretation of its scope in the 1960s and 1970s -- helped open doors that had previously been closed to African Americans and other minorities. For the first time, minorities and women became police officers, firefighters, principals, and engineers in significant numbers. No longer could employers advertise that "only whites need apply." Harassment based on race, sex, or other protected characteristics, became understood as a form of illegal job discrimination.

IN the 1980s, however, the Supreme Court substantially narrowed the reach and remedies of civil rights laws addressing employment discrimination. In 1989, in particular, the Court issued a series of decisions that constituted a body blow to the effort to secure equal employment opportunity. These decisions interpreted Title VII and related laws extremely narrowly, and -- almost overnight -- made it substantially more difficult for victims of job discrimination to vindicate their legal rights.

FOR EXAMPLE, one of the 1989 decisions -- Wards Cove Packing Co. Antonio -- essentially undercut the Griggs ruling by flipping the burden of proof to plaintiffs to establish that an employer's use of a practice that has an adverse impact on minorities is unjustified -- at the same time greatly expanding deference to employers using practices with such discriminatory effects. Another decision -- Patterson v. McLean Credit Union -- held that the Civil Rights Act of 1866 covers only job discrimination at the hiring stage and is thus powerless to address racial harassment and other forms of discrimination that take place once a worker is on the job.

IN RESPONSE, Congressional lawmakers quickly aimed to overturn the Court's rulings and reaffirm Congress' intent that fair employment laws be broadly interpreted to provide genuine equality of opportunity. Two years of vigorous debate led to the enactment of the Civil Rights Act of 1991, which legislatively reversed Wards Cove, Patterson, and the other cases to reestablish the broad scope of Title VII's protections. It also provided, for the first time, limited money damages for many victims of intentional discrimination to compensate them for their injuries, punish wrongdoing, and deter its recurrence.

MOST RECENTLY, the Supreme Court has wrestled with the circumstances under which a plaintiff can establish discrimination in cases involving circumstantial, or indirect, evidence of discrimination. In its most recent decision (2000), Reeves v. Sanderson Plumbing, the Court made clear that a jury may find unlawful discrimination when a plaintiff shows that the employer's explanation for its adverse job decision is pretextual - i.e., untrue.

ADDITIONAL CHALLENGES REMAIN in the ongoing fight for truly equal employment opportunity. These include ensuring adequate funding for and direction by the Equal Employment Opportunity Commission and other enforcement agencies. Over the years, the EEOC has often come under heavy criticism by civil rights advocates who charge that its enforcement efforts are not sufficiently vigorous -- due to a lack of funding or a lack of will, or both. At various times, the EEOC has been faulted, among other things, for its large backlogs of discrimination charges and its emphasis on individual rather than class-based charges that attack more widespread forms of discrimination. Without effective EEOC enforcement, many victims of job discrimination -- especially low-wage workers --- will be unable to vindicate their legal rights because they cannot secure or afford a lawyer to bring a private lawsuit.

OTHER KEY ISSUES include continuing harassment on the basis of race, national origin, and other protected characteristics, as well as national origin discrimination that takes the form of bias against workers who speak with accents or unjustified "English-only" policies in the workplace. An additional area of concern is the increasing prevalence of mandatory arbitration policies, under which employers force workers -- as a condition of employment -- to sign away their rights to litigate any future discrimination claims, and instead submit to arbitration. Mandatory arbitration in many cases imposes significantly higher costs on employees who may not be able to afford them. Furthermore, arbitration -- unlike judicial resolution of such disputes - generally does not allow public scrutiny of alleged job discrimination nor does it allow for the creation of judicial opinions that help develop the law.

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