Employment Discrimination

Historically, an employer and employee had a strict "at will" relationship. That is, the employer could reject a job applicant or demote or discharge an employee for no reason or for any reason whatsoever, including a motive to discriminate on the basis of age, disability, race, religion, or sex. The employer was even free to implement a discriminatory wage scale. In turn, an employee was entitled to quit at any time for any reason or for no reason. Employees were afforded some relief with the rise of unionism. An employer that was bound by a collective bargaining agreement could discipline or fire an employee only in accordance with the terms of the agreement. However, even the unions were accused of practicing discriminatory representation methods. In 1963, Congress passed the Equal Pay Act, which bans employers from discriminating against employees on the basis of sex as to the payment of wages. With a few exceptions, this law requires employers to pay equal wages for equal work.

Congress subsequently enacted Title VII of the Civil Rights Act of 1964, which had a profound impact on employer-employee relationships. It prohibits employers from discriminating against employees on the grounds of color, national origin, race, religion, or sex. The term "sex" encompasses pregnancy, childbirth, and related medical conditions. More specifically, Title VII forbids employers from engaging in the following practices: (1) failing or refusing to hire or firing or otherwise discriminating against a person with respect to "compensation, terms, conditions, or privileges of employment;" and (2) limiting, segregating, or classifying employees or job applicants "in any way which would deprive or tend to deprive any individual of employment opportunities or adversely affect his status as an employee." Labor unions and employment agencies are also subject to the provisions under Title VII. Pursuant to Executive Order 11246, certain employers, such as those with federal contracts, were required to implement affirmative action plans in furtherance of Title VII. Basically, an affirmative action plan is one which establishes a preferential hiring and promotional plan for minorities and women. Such a plan is intended to redress past discrimination and remedy the underutilization of minorities and women in the workforce. Fearing lawsuits, many employers not covered under Executive Order 11246 voluntarily established affirmative action programs. Non-minorities and males have criticized affirmative action programs as constituting reverse discrimination. Recently, affirmative action plans have been struck down in the context of college admissions programs. Accordingly, the longevity of affirmative action is questionable. Subsequent to Title VII, Congress enacted statutes which protect employees from discrimination on the basis of age. The Age Discrimination in Employment Act of 1967 shields workers over the age of 40. Moreover, the Older Workers Benefit Protection Act of 1990 safeguards the benefits of older workers.

Congress also passed legislation which prohibits discrimination against employees with mental and physical disabilities. Both the Americans with Disabilities Act of 1990 and the Vocational Rehabilitation Act of 1973 protect disabled workers. The latter applies to a narrower pool of employers.

Similar to Title VII, the statutes prohibiting age and disability discrimination apply to all facets of employment. That is, they protect an individual from discrimination in terms of job advertisements, during the initial job application procedure and throughout the employment relationship. Congress created the Equal Employment Opportunity Commission (EEOC) for the purpose of enforcing the federal employment discrimination laws. Among other things, the EEOC has the power to investigate discrimination claims, engage in educational activities, and make technical studies. The EEOC also issues guidelines, which are contained in the Code of Federal Regulations (CFR). Generally, the above federal statutes regulate employers that are federal agencies, are engaged in an industry that has an affect on interstate commerce (trade between states), or have a business or financial relationship with the federal government--i.e., federal contractors or recipients of federal funds. States have passed parallel laws to cover those employers that do no fall within the parameters of the federal enactments. A state law may even prohibit employer practices which are not banned under federal authority, such as discrimination on the basis of height or weight.

Today, "at-will" employment (a job relationship that is not subject to a collective bargaining agreement) is still a reality. However, the above federal statutes and their state counterparts serve to restrict the circumstances under which an employer can hire, compensate, promote, or discharge an employee.