HR 101: The ABCs of EEO and Civil Rights

Nearly 10 years after Rosa Parks refused to give up her seat on a bus in Montgomery, Alabama, America enacted comprehensive legislation intended to address people’s civil rights – the Civil Rights Act of 1964 was signed into law. The intervening years saw a range of unrest, protests, and demands for equality.

President John F. Kennedy stated, that America “will not be fully free until all of its citizens are free.” As a result, he proposed related legislation in June 1963. In November he was assassinated. His Vice President and successor, Lyndon B. Johnson, signed the Act in July 1964.

There are 11 sections, or Titles, in the Civil Rights Act. Each Title prohibits discrimination in various areas of American life:

• Voting rights
• Public accommodations
• Housing
• Education and more
• Title VII prohibits discrimination in employment

Simple language throughout the law bans discrimination in any form based on race, color, religion, sex, or national origin.

Why is EEO important for civil rights?

The EEOC was originally created to oversee reported instances of discrimination. The Agency’s goal was to curtail the unacceptable actions of those who participate in discriminatory activities. They aren’t responsible for others’ actions, though.

A respectful workplace is everyone’s responsibility, but organizations must go beyond professionalism.

Subjecting an individual or group of workers to discriminatory behaviors or practices puts the entire company at risk.

Discrimination has no place in the workplace. Employers must create a culture that welcomes and celebrates differences. This unacceptable discriminatory behavior emphasized the need to define and protect certain people groups.

Defining protected classes

A variety of workers enjoy protection under Title VII based on their status of:

• Race
• Color
• Religion
• Sex
• National origin

Workers with these statuses are referred to as ‘protected classes.’ They are afforded protection under Title VII based on their status.

Over time, the definition of protected classes has been expanded, and additional classes have been added.

Getting more specific about Title VII

Title VII prohibits discrimination — treating a person differently or less favorably —in every aspect of employment, from recruitment to separation and beyond. The Act’s protections include, but are not limited to:

• Where a company advertises for workers
• Who the company chooses to interview or hire
• Subjecting applicants or workers to different employment tests or standards
• How a company pays, promotes, rewards, or disciplines workers
• What benefits are provided to employees, including fringe benefits, preferred assignments, or scheduled hours
• Unequal promotions, salary increases, bonuses, or performance evaluations
• Harassment in the workplace
• Unequal (commonly referred to as disparate) treatment of employees based on their protected class
• Retaliation against employees based on their protected class or because they complained or brought a charge against the company
• Separation of employment based on a protected class
• Offering different retirement, severance, or post-employment benefits based on a protected class

The Act prohibits discrimination in any aspect of employment or pre-employment. It defines discrimination in three main categories:

• Harassment
• Disparate treatment
• Disparate impact

Companies are required to ensure employees are not subject to discrimination by:

• The organization’s practices
• Its employees (including management and coworkers)
• Others who interact with the employee on the job and sometimes after hours

Yes, even those times when the group goes out after work matter.

Harassment or just having fun?

Employees are harassed when they are targeted because of their protected class. Instances of harassment can come from:

• Anyone within the company
• Clients
• Vendors

Unwelcome or derogatory comments, jokes, gestures, or behavior can be forms of harassment. The actions can be verbal, physical, or written.

Harassment is established when one employee or a group of workers has been singled out based on their protected class. Examples of harassment include:

• Offensive or derogatory jokes based on religion, color, race, gender, or ethnicity
• Racial, gender, religious, or ethnic slurs
• Insulting comments about religious garments, attire, holidays, or rituals
• Offensive cartoons, graffiti, messages, or emails
• Mocking or imitating a person’s accent
• Clothing with offensive or demeaning language or images
• Derogatory emails, text messages, or messages on social media pages

Employers are responsible for harassment that occurs on their premises.

Managers and coworkers who harass employees can put an organization at risk.

Even vendors and customers who harass employees are the responsibility of the company. Individuals who are external to the company and exhibit discriminatory behavior should be warned and banned from the premises if necessary.

‘It was just a joke’ is not a defense

Employers are responsible for ensuring staff members treat one another professionally. It doesn’t matter if the behavior wasn’t intended to be discriminatory, the result still can be interpreted that way.

What is disparate treatment?

Disparate treatment is the term the EEOC uses for intentional discriminatory acts.

Employees or job seekers who are treated differently or given less favor or opportunity based on their protected class experience disparate treatment.

Disparate treatment is established when a worker or applicant can prove they were denied an opportunity or treated differently than someone in an unprotected class. Examples of disparate treatment include:

• Failing to interview or hire candidates based on their protected class. This includes failing to interview candidates with non-traditional names
• Requiring women to submit to a physical examination for a job that requires manual labor if the physical is not required for men
• Promoting employees over equally, more senior or more qualified coworkers who have protected class status
• Setting different standards of conduct or behavior for differing classes of employees
• Denying preferred shifts, hours, client lists, or assignments based on a protected class

Disparate treatment is generally intentional and affected by supervisory or management-level staff. These behaviors put the organization at risk. When an employee or applicant can demonstrate colleagues who are not in a protected class are not subject to these conditions, disparate treatment has occurred.

What is disparate impact?

Employer practices that disproportionately impact protected classes result in disparate impact; even if the procedure is evenly administered.

For these cases, the EEOC generally looks for statistical data to prove a company’s practices are unevenly affecting protected classes of employees or applicants. Examining the company’s employee records determines whether policies and standards, even unintentionally, are creating a discriminatory workplace. Examples of disparate impact include:

• Setting minimum weight or height requirements: these may have a tendency to exclude women
• Testing workers or applicants for quick reaction times: these may tend to exclude older workers
• Requiring applicants to score above a certain level on pre-employment tests

As part of their investigatory process, the EEOC uses its own Guidelines on Employee Selection Criteria to determine if members of a protected class are subject to disparate impact. This is the “80% Rule.”

How the EEOC uses data to get to the 80% rule for civil rights

The EEOC analyzes data to determine if workers or applicants in a protected class were selected (interviewed, promoted, etc.) less than 80% of the time as compared to others in a non-protected group. Disparate impact occurs when a practice or policy scores lower than 80%.

Employers may challenge the EEOC when they believe practices that result in disparate impact are necessary. In this instance, an employer must prove the function is specific to the position and is truly a business necessity. An example would be to hire only women as girls’ locker room attendants. While the policy discriminates against men, it is the result of a business necessity.

EEOC and civil rights from the beginning

The Civil Rights Act also established the Equal Employment Opportunity Commission (EEOC). In July of 1965, the EEOC was open for business but had no legislative authority to enforce Title VII.

At that time, regarding charges of discrimination, the EEOC could:

• Receive
• Investigate
• Conciliate charges

They were a resource for employers to provide technical assistance. In some cases, they referred charges of discrimination to the Attorney General of the U.S.

The Agency opened its doors in 1965. At that time, approximately 1,000 cases had already been filed under the Civil Rights Act. With a small staff, and no branch offices around the country, the Commission experienced an inauspicious beginning.

The staff of 100 with a $2.25 million budget anticipated about two thousand complaints in their first year. In fact, they received almost 9,000. By 1969, that number had more than doubled.

The basis for the charges

Initially, most charges brought to the Commission were racial discrimination. Soon after came an influx of sex discrimination charges. The Commission used Conciliation Agreements to resolve most of the charges brought during its early years. These saw businesses agreeing to desegregate workplaces, including physical spaces like bathrooms and cafeterias.

They also agreed to provide equal opportunities in every aspect of employment, from hiring through separation.

For more significant cases or those which did not resolve during conciliation, the Commission filed amicus curiae briefs with the Courts, working with the Department of Justice to bring a civil action against some employers. These generally included cases where the employer showed a ‘pattern or practice’ of discrimination.

Updates to the law

Additional laws have been enacted over the past several decades. Legal expansions and clarifications have redefined the term protected class. Some laws created new classes while others updated or reinterpreted existing laws.

Giving the EEOC power

In 1972 Congress passed the Equal Employment Opportunity Act, which amended Title VII. This provided the EEOC with enforcement authority to file suit against employers independently from the DOJ.

The Agency struggled to keep pace, with over 32,000 charges filed in 1972.

Rehabilitation Act of 1973

This law prohibits the federal government from discriminating against qualified individuals with disabilities in their employment practices.

Pregnancy Discrimination Act of 1978

Congress amended Title VII by clarifying discrimination against an employee or applicant who is pregnant or for any aspect related to their pregnancy as unlawful sex discrimination.

Equal Pay Act/Age Discrimination in Employment Act

The Department of Labor transferred responsibility for enforcing the Equal Pay Act and the Age Discrimination in Employment Act to the EEOC in 1978. These laws require employers to ensure equal pay for equal work and prohibit discrimination based on age.

The Americans with Disabilities Act of 1990

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against people with disabilities. The lengthy Act outlines:

• Who is eligible for coverage
• What defines a disability
• How employers must work to accommodate qualified individuals

Title I of the Act became effective in July 1992

The Civil Rights Act of 1991

This law amended the original Act to allow employees to request a jury trial in Title VII and ADA lawsuits. Plaintiffs can now also recover compensatory and punitive damages in cases of intentional employment discrimination.

The Uniformed Services Employment and  Reemployment Rights Act (USERRA) of 1994

This law requires employers to reinstate workers to their former civilian jobs after their required military service. USERRA ensures individuals aren’t discriminated against based on their military service or affiliation.

The Genetic Information Nondiscrimination Act (GINA) of 2008

EEOC has the authority to enforce GINA’s Title II, prohibiting genetically-based information from being used to perpetuate employment discrimination.

The Americans with Disabilities Act Amendments Act of 2008

The Act makes changes to the definition of the term disability. The list of covered disabilities continues to expand.

The Lilly Ledbetter Fair Pay Act of 2009

The Act provides the parameters of when an individual can file pay discrimination charges with EEOC.

Can you be more specific about civil rights?

In 2020, the Supreme Court prohibited discrimination based on sexual orientation and gender identity under Title VII. The Sexual Orientation and Gender Identity (SOGI) ruling expands the definition of ‘sex’ under the Act to include homosexuality and transgender status.

The Commission’s role and responsibilities continue to expand as more laws are enacted. New lawsuits and claims redefine what a non-discriminatory workplace should be.

EEO in D.C. and in your town

In addition to the federal EEOC, many states and some local governments have their own office of Equal Employment Opportunity. These offices exist to prohibit harassment or discrimination based on the categories required under federal law. Workers and applicants may file a charge of harassment or discrimination with their local authority and/or with the federal EEOC.

Many government agencies add additional categories specific to their state or community. For example, in Illinois, the law prohibits discrimination based on:

• Marital status
• Housing status
• An arrest record, and other categories.

In California and New York, it’s illegal to discriminate based on political activities or affiliations, among others. All three states prohibit discrimination based on domestic violence victim status.

Local and state governments may add to the list of federally protected classes. However, they may not remove any of the existing classes covered under the Civil Rights Act of 1964 or any other employment laws.

Can EEO be of assistance?

Occasionally, the EEOC provides guidance to employers about new laws or issues they face currently. During the COVID-19 pandemic, the EEOC provided businesses with pandemic-related advice in several areas. They offered help to employers concerning religious exemptions to vaccinations, caregiver responsibilities, and discrimination laws.

When new court rulings expand or redefine existing law, the EEOC provides resources for employers to understand any new responsibilities or requirements. Employers or private citizens may even request clarification of the law from the Commission. They can ask for a Formal Opinion Letter, requesting the Commission to provide guidance on a specific question or hypothetical scenario. It’s important to note that not all requests receive a response.

What is the EEO’s role when a discrimination claim is filed?

When an applicant or employee believes they have been the victim of discrimination, they may file a claim with their local, state, or federal EEOC office. Employees or applicants can submit claims in:

• Writing
• Person
• In some regions, online

Some claims require an in-person interview, although the Commission also accepts anonymous claims.

When the Agency receives a claim, they will review it to determine if the accusation violates the employee or applicant’s rights.

The EEO will contact the employer within 10 days of the filing if they determine rights were violated, and let them know an accusation has been made. The notice will include online access for the employer to review the charge and receive messages about the investigation.

Mediation is available

Depending on the nature of the claim, the EEO may notify the employer and claimant that the charge is eligible for mediation. This means the EEO will act as a middle-man to resolve the situation between the employer and employee. Employers and workers may request mediation, as well.

In some cases, businesses offer a settlement to the worker before, during, or after mediation. The charge will be closed if:

• Mediation is successful
• Parties agree to a settlement

The details of the charge and its resolution remain in the employer’s EEOC file.

What happens when there is an impasse?

When the employer and the employee cannot come to an agreement, the Commission will investigate the claim. In that instance, the Commission will ask employers for a Statement of Position. This is the employer’s first opportunity to tell their side of the story. The EEOC may request:

• Further documentation
• Witness testimony
• Support materials from the employer and the worker
• Personnel files
• Policy manuals
• Performance evaluations, etc.
• An on-site visit

When the employer wins the case

The Agency will collect all the information and statements to make a ruling. Claim resolution can take months. If the EEO office finds in favor of the employer, they will:

• Receive a Dismissal and Notice of Rights letter
• Close the case
• Include the resolution in the employer’s file

When the employee wins the ruling

If an EEO office finds in favor of the worker, they will:

• Issue a Letter of Determination stating they believe discrimination has occurred.
• Invite all parties to meet and resolve the issue through conciliation.

This involves mediating a resolution that both parties find agreeable. In some cases, mediation results in employees being reinstated to their jobs. In others instances, they settle on a monetary agreement. Depending on the infraction, conciliation can result in a costly or no-cost option to close the case.

An employee may file a suit if there is no resolution through:

• Mediation
• Settlement
• Conciliation

This happens in instances where the Commission believes discrimination has occurred. Occasionally, the EEOC will file a lawsuit in federal court on the employee’s behalf. Typically this happens when many employees have leveled a charge against an employer.

The EEOC’s role in lawsuits

In most cases, the EEOC doesn’t sue employers. They provide claimants with a Notice of Right to Sue letter. This letter advises the employee that the Agency has made some determination. At that point, the employee(s) has the right to find their own attorney and file a civil suit against the company.

Notice of Right to Sue letters are only valid for 90 days. Therefore, the employee must file within that time frame. The alleged case is closed if the employee doesn’t file within 90 days. If they do file a suit, the employer will need to defend their position in court.