1964: The Beatles tour the USA.
The Olympic Games are held in Tokyo.
And in July of that year, President Lyndon Johnson signs the Civil Rights Act into law.
Title VII of that Act establishes for the first time that discrimination in the workplace on the basis of race, color, gender, religion, or national origin is illegal.
How far have we come?
When I was a paralegal in the early eighties, I worked on the tail-end of a landmark race discrimination class action. The case, brought against a North Carolina textile manufacturer, had been up on appeal and down on remand a couple of times, and was now in the damages calculation phase.
The mill had changed hands more than once. Some of the named plaintiffs were actually dead. It was shocking to read in the original court documents how the supervisors (called “overseers,” in an echo from slavery days) were all white males. The spinners and weavers—the better paid workers—were white men and women, and the cleaners and janitors—the worst paid—all black.
Such racial segregation is improbable in today’s workplace, we think. And yet recently, media pundits were drawing attention to the fact that 95% of police officers in Ferguson, Mo., are white, while the community they serve is two-thirds African-American.
Sandra Day O’Connor tells how, although she graduated third in her Stanford Law School class, more than 40 firms refused to even interview her for an attorney position because she was a woman.
Today, there are no barriers to entry for women into the professions or business, but the top jobs are still overwhelmingly held by men, and women earn on average only 77 cents for every dollar earned by their male colleagues. (Read my earlier blog, Why can’t a woman be more like a man?”)
New laws attempt to plug gaps
The truth is: No law is perfect as drafted.
It has been left to the courts, and state and federal legislatures to interpret, elaborate on, and complete the anti-discrimination program begun by Title VII.
Here are just some of the federal employment discrimination laws passed since 1964:
• Age Discrimination in Employment Act of 1967
• Pregnancy Discrimination Act of 1978
• Americans with Disabilities Act of 1990
• Americans with Disabilities Amendments Act of 2008
• Genetic Information Nondiscrimination Act of 2008
• Lily Ledbetter Fair Pay Act of 2009
Now add in:
• State laws creating a patchwork of employment protections for other categories, such as sexual orientation and marital status.
• Executive Orders requiring federal contractors to take affirmative action for women, minorities, veterans, and the disabled.
• EEOC guidance on topics ranging from criminal background checks to pregnancy accommodation.
• U.S. Supreme Court opinions defining the burden of proof for discrimination plaintiffs.
What we face now is a vast web of regulation aimed at furthering the intent of Title VII: a level playing field.
Great minds may differ on whether this effort has achieved its aim, or merely complicated the employer’s job of hiring and promoting the best qualified candidate.
Harassment and retaliation
These are the two concepts in this regulatory maze that have shown perhaps the most development over the years.
• Sexual harassment
Then: Male senators scoffed when Anita Hill tried to explain how her work environment was rendered intolerable by sexual harassment. Her testimony in 1991 drew attention to a problem experienced by many women in the workplace. Subsequent U.S. Supreme Court opinions confirmed that harassment is indeed a form of discrimination; teased out the definitions of “quid pro quo” and “hostile environment”; and explained what an employer needs to show in its defense.
Now: Harassment training is commonplace in most workplaces and mandatory in some. Such training covers not only sexual harassment, but harassment based on race, ethnicity, religion, or any other protected category. It addresses appropriate behavior on and off the premises, on the internet and social media, and offers alternative channels for reporting, including 24-hour hotlines.
Then: It was believed that a lot of discrimination and harassment flew under the radar because of a victim or witness’s fear of retaliation. Although Title VII banned retaliation for making a complaint, the burden of proof was high: basically, a victim of retaliation had to show he or she had been fired for speaking up.
Now: Recent cases have relaxed this burden: Any action that “materially” adversely affects the terms and conditions of an individual’s employment may constitute retaliation, even if there is no reduction in pay, or actual job loss.
Whether in response to this change, or the plethora of whistleblower protections in other contexts, the leading basis for filing a charge of discrimination with the EEOC in fiscal 2013 was not race, gender, age or disability; it was retaliation.
Fully 41% of charges filed involved alleged retaliation.
A bumpy ride
The growth of anti-discrimination regulation, the addition of protected categories and the increasing sensitivity to the consequences of unfair employment decisions has not been a smooth progression.
The last 50 years have often demonstrated a “two steps forward, one step back” style.
• The ADA was heralded in 1990 as opening up job opportunities to people in wheelchairs, but quickly degenerated into courtroom squabbles over firing poor performers with depression. The passage of the ADA Amendments Act in 2008 addresses this by switching the focus from “Who is disabled?” to “How can we best accommodate the disabled individual?”
• The Lily Ledbetter Fair Pay Act of 2009 expressly reverses an earlier US Supreme Court decision denying Ms. Ledbetter’s suit because the original discriminatory decision to pay her less than comparable males was taken years before, although she had been prevented from finding out about the discrepancy by a salary confidentiality policy.
Banking industry scorecard
Banks—especially community banks—have much to be proud of in the anti-discrimination arena, especially in hiring women, and in recruiting staff to reflect the ethnicity of the communities they serve.
However, compliance is a moving target, as I’ve tried to describe. Yes, this is a different world than 1964, but all the battles have not yet been won—or even imagined.
How to learn more
New to management?
Just need a refresher on this critical area of human resources law? Register through your state bankers’ association at: to attend my webinar “Employment Discrimination Update.”
We will review the basics of employment discrimination law, as well as covering new developments, such as the EEOC Guidance on Pregnancy, LGBT issues in the workplace, GINA, ADAA, and the recent Executive Order requiring compensation information by gender and race.