Shaping Employment Discrimination Law

The Commission's most significant early interpretations concerned the basic definition of discrimination, not provided in the statutory language of Title VII. Other key legal issues addressed by the Commission included pronouncements on how to prove discrimination; what remedies were available under the law; and how to reconcile the seniority rights of current "innocent" employees with the rights of victims who, but for an employer's discrimination, would have greater seniority. Some of EEOC's contributions to the development of the law are discussed below.

Religious Discrimination and National Origin Discrimination

From its earliest days, employment discrimination law developed through EEOC's decisions, policy guidances, and amicus briefs. While the majority of EEOC's decisions during the 1960s involved race discrimination, the general principles in the decisions applied with equal force to all of the bases covered by Title VII. Nevertheless, some early Commission policy issuances focused exclusively on particular bases, such as religion or national origin, attempting to establish the legal parameters for Title VII's interpretation. For example, EEOC issued Guidelines on Religious Discrimination in 1966 which required employers to make reasonable accommodation for the religious practices of employees and job applicants where such accommodation could be made without an undue hardship on the business. The Guidelines placed the burden of proving undue hardship on the employer.

In 1970, EEOC issued Guidelines on National Origin Discrimination. There the Commission stated that Title VII's protection extended beyond obvious, identifiable national origin characteristics to characteristics that have a disparate impact on national origin minorities, such as language requirements and height and weight standards, and to stereotypical characteristics such as a foreign sounding surname. Relatively few national origin charges were filed in the early years, but the Commission took pains to insure that the message was sent that all aspects of Title VII would be vigorously enforced.

The Disparate Impact Theory of Discrimination

The majority of charges filed during EEOC's early years of operation involved claims of race discrimination against black workers and applicants in hiring and promotion, in selection and testing practices, and by the maintenance of segregated seniority lines by employers. In reviewing these charges, the Commission declared that discrimination did not merely take place through intentional acts of overt discrimination against individuals the generally accepted "disparate treatment" definition of discrimination. Rather, the Commission held that discrimination also occurred when neutral policies or practices had a disproportionate, adverse impact on any protected class, usually minorities or women. Consequently, EEOC focused early on broad employment systems that operated as barriers to equal employment opportunities. The Commission utilized statistics to demonstrate the disparate impact of facially neutral hiring and employment systems.

In 1966, EEOC issued Guidelines on Employment Testing Procedures. This was the first public articulation of the principle that Title VII prohibited neutral policies and practices that adversely affected members of protected groups and could not be justified by business necessity. Revisions to the Guidelines in 1970 further defined the types of proof necessary to validate any screening test under Title VII to assure that systems and tests accurately predict job performance or relate to actual skills required by the jobs.

The disparate impact theory of discrimination reflected in Commission decisions and in amicus briefs was adopted by some lower courts. For example, an early Commission decision concluded that a sixth grade education requirement for a labor position was discriminatory because it had a disproportionate impact on black workers and was not shown to be necessary to do the job. Ultimately, the Supreme Court adopted the Commission's position in the landmark decision, Griggs v. Duke Power Co. (1971), in which EEOC submitted an amicus brief. In that case, the Court invalidated an employer's requirement that applicants have a high school diploma and/or pass aptitude tests for hire and transfer into more desirable departments where prior to the enactment of Title VII the company had restricted blacks to labor positions. Specifically, the Court stated:

The Act proscribes not only overt discrimination, but also practices that are fair in form but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [blacks] cannot be shown to be related to job performance, the practice is prohibited . . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.

This basic definition of discrimination, further elaborated in later court decisions, paved the way for EEOC to challenge many seemingly neutral employment practices that operated to restrict the advancement of minorities and women.

Sex Discrimination

Indeed, most supporters of Title VII initially opposed the Smith amendment because they, too, thought that it would doom the legislation. The amendment stayed in because female members of Congress argued that there was a need to protect equal job opportunities for women. Congresswoman Katherine St. George of New York argued that she could think of "nothing more logical than this amendment" and that while women did not need any special privileges "because we outlast you, we outlive you, . . . we are entitled to this little crumb of equality." The need for this "little crumb of equality" was dramatically illustrated by the unexpectedly large number of sex discrimination charges filed in that first year.

To address the unexpectedly large number of sex discrimination charges that it received, the Commission developed early policy guidance shaping a new law of sex discrimination. The agency first issued Guidelines on Sex Discrimination in l965, which were further expanded in l966, 1968, and 1972. Through its Guidelines, Commission decisions and amicus briefs, EEOC authored many sex discrimination precedents. For example, EEOC took on the matter of statutory construction. EEOC declared that the Title VII provision permitting sex discrimination if gender was a so-called bona fide occupational qualification (BFOQ) for the job should be narrowly construed. The Commission's Guidelines stated that a BFOQ could not be established on the basis of assumptions or stereotyped views of the sexes; nor could it be based on preferences of clients, customers or co-workers. EEOC also stated through the Guidelines that it was a violation of Title VII to classify jobs as male or female, or light or heavy, or to maintain separate seniority lists. In addition, EEOC made clear that it was illegal sex discrimination to refuse to hire or promote women because they were married or had children, unless men were similarly treated. As with the disparate impact theory, the Supreme Court endorsed this last interpretation, among others, when it held in Phillips v. Martin Marietta Corp. (1971) that employers could not have hiring policies for women with young children that were different from those for men with children of a similar age.

When revised in 1968, EEOC's Guidelines on Sex Discrimination further declared that so called state-protective laws were unenforceable because they were discriminatory, and hence preempted by federal law. EEOC found that these early 20th century laws which purported to help women by providing special benefits such as extra work breaks, shorter work hours, and early retirement actually operated to discriminate against and exclude women from jobs. Adopting the Commission's position, federal courts of appeal in Weeks v. Southern Bell Telephone & Telegraph Company (1969) and Rosenfeld v. Southern Pacific (1971), ruled that employers could not rely on state laws limiting women to jobs that did not require lifting over 25 to 30 pounds. These cases helped to open up many better paid, formerly all-male, blue collar and similar type jobs to women, and to bring these paternalistic, anachronistic practices to an end.

Next: Early Enforcement Efforts