CM-618 Segregating, Limiting, and Classifying Employees

618.1           Introduction

(a)      General

(b)     Relationship Between § 703(a)(1) and § 703(a)(2) 

(c)      Approaches to Segregating, Limiting and Classifying Problems

(d)     Results of Earlier Approaches

(1)     Perpetuation of Past Discrimination

(2)     Wage Disparity

(3)     Lines of Progression

(4)     Locking In

(5)     Sex-Segregated Mortality and Actuarial Tables

618.2           Segregation of Facilities and Equipment

(a)      General

(b)     Racially Segregated Facilities and Equipment

(c)      Sexually Segregated Facilities and Equipment

(d)     Commission Decisions

(1)     Company-Owned Community

(2)     Housing Accommodations

(3)     Segregated Facilities and Equipment

(e)      Court Cases

618.3           Segregation of Employees

(a)      General

(b)     Commission Decisions

618.4           Segregated Employee Activities

(a)      General

(b)     Segregated Employee Clubs

(c)      Private Membership Clubs

(d)     Segregated Employee Parties

(e)      Commission Decisions

(f)      Court Cases

618.5           Segregated Employee Unions

618.6           Limiting Employees

(a)      General

(b)     Commission Decisions

618.7           Classifying Employees

(a)      General

(1)     Disparate Treatment

(2)     Adverse Impact

(b)     Commission Decisions

618.8           Job and Territorial Assignments

618.9           Focus of Investigation

618.10         Cross References

(a)      How to Investigate, § 602

(b)     Theories of Discrimination, § 604

(c)      Jurisdiction, § 605

(d)     Terms, Conditions, and Privileges, § 613

(e)      Seniority, § 616

(f)      BFOQ, § 625

(g)     Benefit Plans, § 627

(h)     Unions, § 630

 

SECTION 618
SEGREGATING, LIMITING AND CLASSIFYING EMPLOYEES

618.1          Introduction

(a)  General -

The segregating, limiting, and classifying of employees and applicants on the basis of race, color, sex, national origin, or religion is expressly prohibited by § 703(a)(2) of Title VII.  It is an unlawful employment practice for an employer to segregate, limit, or classify employees or applicants for employment because of prohibited reasons so as to affect their status or deprive them of employment opportunities.

Although there is a substantial overlap in the use of the terms segregate, limit, or classify, some distinctions are both necessary and possible.  To segregate employees or facilities means to physically set apart or isolate them, as where one set of facilities is used by Black employees and another set of facilities is used by White employees.  For purposes of this manual section, to limit refers to employees and not to facilities, jobs, or duties; it also entails restricting, curbing, or curtailing employees in such a manner as to preclude their advancement.  For example, where the employer hires and assigns females to clerical duties, and better paying, professional jobs are reserved exclusively for males, prohibited limiting occurs.  Females are limited by such an employment policy, because they are not hired into and cannot advance into better and higher paying jobs.  To classify also refers to employees and jobs; it entails grouping or categorizing employees or jobs so that certain jobs are recognized as generally held by females or minorities, while other jobs are reserved for White males.

The primary importance of the distinction between segregating, limiting, or classifying employees is that the evidentiary burdens may vary.  With regard to racially segregated facilities, the Commission has long maintained that their establishment and use under any circumstances is prohibited discrimination in violation of § 703 of Title VII.  (See Commission Decision No. 70-221, CCH EEOC Decisions (1973) ¶ 6088; and Commission Decision No. 71-2344, CCH EEOC Decisions (1973) ¶ 6257, which cites: Brown v. Board of Education, 347 U.S. 483 (1954); Green v. County School Board, 391 U.S. 430 (1968); and Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), in support of this proposition.)  Therefore, the EOS investigation need only reveal that there is segregation of facilities or equipment on a prohibited basis and that no exception or exemption (see § 604.10 of Theories of Discrimination) is applicable. Once the EOS makes these determinations, employer proffered excuses, defenses, or justifications are immaterial.  For instance, if the investigation reveals that the restroom facilities are racially segregated and that no exception or exemption is applicable, the employer cannot successfully defend the segregation by contending that Whites will not use the same facilities as Blacks or that Blacks prefer to use their own facilities.  By way of contrast, when evaluating charges of discriminatory limiting or classifying, employer reasons, excuses, defenses, or justifications need to be evaluated in order to determine whether, in the final analysis, the practice or policy is discriminatory.

The elimination of intentional segregation of employees and facilities, which represented an obvious bar to employment, was the area toward which the Commission early chose to direct its attention and resources.  The results of the Commission's efforts to eliminate what were often blatant policies and practices of discriminatory segregation are twofold. First, as regards segregated facilities, the White only, male only, and Anglo only signs have been, in large part, removed. Second, a substantial body of decisional and case law was developed, and so is available to the EOS, which found that such policies or practices violate the Act.

Although initially the focus was on segregating policies or practices, subsequently limiting and classifying policies or practices were also addressed.  Additionally, the focus shifted from intentional discrimination to the disparate treatment and adverse impact analyses.  (See § 618.1(c).)

(b)        Relationship Between § 703(a)(1) and § 703(a)(2) -

Section 703(a)(1) prohibits discrimination with respect to hiring, discharging, or otherwise treating an individual differently based on his/her protected status if a term, condition, or privilege of employment is concerned.  This provision was not intended to be specific, nor was it intended to set out the scope of the activities covered.  Rather, it provides broad, general prohibitions against discrimination.  (See § 613, Terms, Conditions, and Privileges of Employment.)  This is in contrast to § 703(a)(2) which is treated in this manual section and which is directed at more specific activities or practices; i.e., segregating, limiting, or classifying of employees or applicants.  (See also §§ 703(c)(1) and (c)(2) which deal with prohibitions against discriminatory treatment of labor organization members or applicants.)

Overall, § 703(a)(1) is broader than § 703(a)(2) so that a practice which violates § 703(a)(2) can also violate § 703(a)(1).  The EOS should compare Commission Decision No. YB 19C-144, CCH EEOC Decisions (1973) ¶ 6082, which relied on § 703(a)(1) to find the employer's maintenance of racially segregated housing, church, and swimming facilities in a company owned community to be discriminatory, to Commission Decision

No. 70-221, CCH EEOC Decisions (1973) ¶ 6088, which relied on § 703(a)(2) to find the employer's maintenance of separate locker, shower, toilet, and lavatory facilities for Anglos, Blacks, and Hispanics respectively, to be discriminatory.  While both decisions involve segregated facilities, one relies on the prohibitions of § 703(a)(1) and the other relies on the prohibitions of § 703(a)(2) as a basis for finding the practice discriminatory.  More often than not, however, court cases and Commission decisions have failed to make clear distinctions between the two sections.  The EOS may therefore rely on either section or both sections to solve the same problem.  (See the following example.)

Example - Relationship Between § 703(a)(1) and § 703(a)(2) - R hires only females as clericals or into technical job slots; males are hired as management trainees or into professional slots. Management trainees and professional employees are encouraged to take job-related courses on company time and at the company's expense. Successful completion of such courses is a prerequisite to advancement.  Clerical and technical employees are not entitled to take courses on company time or at company expense. CP, a female hired into a technical slot, filed a charge alleging that R's educational policy discriminates against her because of her sex. The educational courses constitute a term, condition, or privileges of employment, so the charge can be analyzed under § 703(a)(1), and since the charging party is being limited and classified in such a manner as to affect her status or deny her employment opportunities, the charge should also be analyzed under § 703(a)(2).

Among the reasons for noting the distinction between the two sections is that charges alleging segregated facilities under § 703(a)(2) are evaluated and analyzed differently (see § 618.1(a), above) from similar charges under § 703(a)(1). Additionally, relief can be more readily and specifically tailored to correct situations where discrimination is found under § 703(a)(2), as opposed to the general approach and treatment accorded under § 703(a)(1).  (See also Rogers v. EEOC, 454 F.2d 234, 4 EPD ¶ 7597 (5th Cir. 1971), where in resolving a case brought under § 703(a)(1) the court found that as well as actual and pecuniary harm, employees are also protected from emotional and psychological harm.)

(c)        Approaches to Segregating, Limiting, and Classifying Problems -

Older court cases and Commission decisions dealt with intentional discrimination as reflected in overt acts such as "White only" signs over toilet facilities.  Subsequently, because of aggressive enforcement of Title VII and other nondiscrimination laws, the overt practices of intentional discrimination were virtually eliminated.  The intentional discrimination theory was merged into the disparate treatment theory of discrimination under which motive or intent to discriminate need not be shown by overt acts but could be inferred where the facts warranted.  Later still, attention was shifted away from proving motive or intent to discriminate and focused, instead, on the consequences or effects of discriminatory employment practices, i.e., on an adverse impact analysis.

These developments are exemplified in the following three situations involving separate facilities.

Example 1 - Intentional Discrimination - R, a large manufacturer with a racially mixed workforce, had one set of combination locker, shower, and restroom facilities for its White employees.  Black employees were required to use separate and poorly maintained restroom facilities.  No locker or shower facilities were provided for the Black employees, and a "White Only" sign was posted over the facilities used by the White employees.  CP, Black, filed a charge alleging racial discrimination in that the "White Only" sign constitutes direct evidence of an intent to discriminate.

Example 2 - Disparate Treatment - R, a large manufacturer with a racially mixed workforce, formerly had racially segregated locker, shower, and restroom facilities.  After the enactment of Title VII, R took down "White Only" and "Black Only" signs and announced that future use of the facilities would be on an integrated basis.  Nonetheless, Black employees who attempted to use the facilities formerly used only by the White employees were harassed and threatened.  CP, Black, filed a charge alleging racial discrimination because he was being treated differently from similarly situated White employees based on his race. Investigation revealed that R was aware of the disparate treatment of Blacks and took no action.  In practice, despite the apparent policy change, the facilities remained segregated, and White employees were not harassed or threatened.

Example 3 - Adverse Impact - R, a large manufacturer, has a workforce that is 15% Black and 85% White, and which closely approximates the SMSA from which it draws its employees.  For many years, R maintained racially segregated, combination locker, shower, and restroom facilities.  After enactment of Title VII, a new policy was announced.  Under the new policy, employees were to be assigned to the facilities closest to their respective work stations.  This resulted in the reassignment of five Black employees to the formerly all-White facilities, and two White employees to the formerly all Black facilities.  CP, Black, filed a charge alleging that R's seemingly neutral assignment policy nonetheless disproportionately excludes Blacks from the better maintained, formerly all-White facilities.

(d)        Results of Earlier Approaches -

Using the analysis indicated above, the Commission has dealt with the following limiting, segregating, and classifying policies or practices: the physical separation of women and minorities with respect to the physical plant, the plant facilities, the job assignments, duties, and classifications, the employee unions, and even employee parties and social activities.

As the above policies and practices were analyzed and often found to be discriminatory, despite the relief ordered, additional problems appeared.  Some of the additional problems which developed are set out below.

(1)        Perpetuation of Past Discrimination - Where women and minorities were formerly discriminated against by being segregated, limited, or classified, a neutral employment practice can act to perpetuate the past discrimination.  For example, where the respondent formerly excluded women and minorities from its skilled jobs, a present word-of-mouth recruitment policy relying on referrals by existing employees merely serves to perpetuate the past discrimination because in all likelihood more majority employees will be referred by existing White male employees.  (See § 604, Theories of Discrimination, for a more detailed discussion of this problem.)

(2)        Wage Disparity - Another result of discriminatory limiting, segregating, or classifying of women and minorities is that some employees end up in lower paying job categories.  For example, jobs such as clerical, secretary, bank teller, janitress, maid, and stewardess, to name just a few, are traditionally female jobs.  The wages received for these jobs are frequently less than the wages received for traditionally male jobs in the same or similar setting.  Similarly, in other job settings, ranging from manufacturing, to educational, to service, women may be bunched into lower paying job categories or classifications.  (See § 633, Wages and Other Benefits of Employment, which is forthcoming, for a thorough treatment of this problem.)  Note that this issue is non-CDP.

(3)        Lines of Progression - Placing employees in particular job assignments so they compete within the particular series of jobs or assignments for promotion constitutes a line of progression.  To the extent women and minorities are discriminatorily limited, segregated, or classified within particular lines that are not the result of a good faith bona fide seniority system, and that cannot be justified by business necessity since assignment practices constitute prohibited discrimination, the Act is violated.  Also, perpetuation of past discrimination could result from a rule requiring women and minorities to compete for promotion only within their particular job or assignment series.  For example, where the respondent formerly only hired women and minorities into nonprofessional job classifications, subsequently limiting their line of progression to that category serves to perpetuate the past discriminatory practice.  Despite the apparent effects of past discrimination or the locking of women and minorities into segregated lines of progression, § 703(h) of Title VII protects bona fide seniority systems from the prohibitions of the Act.  (See § 616, Seniority, for a more detailed discussion.)

(4)        Locking In - The direct and obvious consequence of precluding or discouraging women and minorities from competing outside their respective lines of progression is often to lock them into less prestigious, less desirable, lower paying jobs. This might be caused by not allowing transfer between lines at all, or by allowing transfer but without the carry-over of seniority from one line to another, or by requiring transferees to start at the beginning of the new line of progression at reduced pay and benefits and with loss of the accumulated seniority.  (See § 616, Seniority, for a more detailed discussion.)

(5)        Sex-Segregated Mortality and Actuarial Tables - Another issue that the EOS might encounter concerns the use of sex-segregated actuarial or mortality tables by employers to compel females to make larger pension contributions while employed or as the basis for subsequently awarding females smaller benefits after retirement.  The Supreme Court recognized in Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702, 16 EPD ¶ 8250 (1978), that even though sex-segregated mortality or actuarial tables validly reflect that women live longer than men, that generalization does not justify obligating women to make larger pension fund contributions in order to receive equal monthly benefits after retirement.  Since some women do not live as long as some men and there is no way to determine who those women are, it is unfair to apply the generalization.  Therefore, since the focus of Title VII is on the individual, the use of sex-segregated mortality or actuarial tables that differentiate solely on the basis of generalizations about the life expectancy of women as a class was found to result in a violation of Title VII.

The Supreme Court, in the case of Arizona Governing Committee v. Norris, 463 U.S. 1073, 32 EPD ¶ 3369 (1983), rejected the employer's contention that, even though male employees receive higher monthly annuity benefits, Title VII is not violated because employees have the option of electing to receive a lump sum payment, and independent insurance companies provide the annuity payments based on valid though sex-segregated actuarial or mortality tables.

This issue is non-CDP; therefore, the Office of Legal Counsel, Guidance Division should be contacted for assistance when it arises.  (See § 627, Benefit Plans, for a thorough discussion of these and similar problems.)

618.2          Segregation of Facilities and Equipment

(a)        General -

Many Commission decisions and court cases are directed at the elimination of discriminatory segregation of employees or applicants with respect to the work community itself, employer-provided housing, work gangs, labor pools, and use of conveniences such as restrooms and showers.  Although great strides have been made toward the elimination of this type of discrimination when the charge is based on race or national origin, still more must be done.  On the other hand, when the charge is based on sex, a great deal more remains to be accomplished.

As the discussion and the selected decisions which follow indicate, many practices of discriminatory segregation of facilities have been addressed by the Commission in terms of race and national origin.  The Commission early took the position that "[t]o maintain separate and racially identifiable facilities, whether through custom and usage, freedom of choice, or whatever, is to segregate employees because of their race within the meaning of § 703(a) [of Title VII]."  Commission Decision No. 71-2344, CCH EEOC Decisions (1973) ¶ 6257.  This eliminated various employer justifications and defenses and obligated employers to establish policies and practices to racially desegregate their facilities.  Once employers established policies and practices of nonsegregation, they were obligated to use various means to communicate the change to the employees. Thereafter, they were further obligated to encourage integrated, nonracial use of the facilities by the employees and discourage practices or activities that would preclude integration of the employees and facilities.

(b)        Racially Segregated Facilities and Equipment -

As has already been suggested, racially segregated facilities were among the first bastions of discrimination attacked by the Commission.  The Commission made it clear that employers who separated their Black employees from their White employees respecting use of employer-provided facilities were violating Title VII.  As was mentioned in § 618.1(a), custom and usage, and freedom of choice, and other such reasons cannot be relied upon by employers to justify maintenance of racially segregated facilities.  The same is true if the segregation is based on co-worker preference.  A preference, whether from Black or White employees, should not be honored by the employer since it does not constitute an adequate justification for the segregation. Therefore, an employer's contention that virtually all of the Black employees prefer having their own segregated restroom facilities fails to justify the practice.  The employer must actively integrate the facilities.

Applying the disparate treatment theory of discrimination, the practice or policy of having different announced standards for Black and White employees or having the same announced standards but nonetheless treating either group differently violates the Act.

Example 1 - Disparate Treatment - R, a large manufacturer, has two sets of locker, shower, and restroom facilities for its employees.  Over one set of facilities there is a sign that says, "White Only."  Those facilities are used exclusively by White production-line employees. The other facilities are used exclusively by Black production-line employees.  CP, a Black employee, filed a charge alleging that the maintenance of segregated facilities constitutes discrimination against him because of race (Black).  Since investigation revealed that R maintains segregated facilities, prohibited racial discrimination is being practiced by R.  R's defense that its White employees will not use the same facilities that its Black employees use does not justify the segregation.  (Note that segregated facilities are involved.)

In terms of adverse impact, the Act is violated where there is a showing that women or minorities are adversely affected by a neutral policy or practice governing use of facilities or equipment, no exceptions such as BFOQ are applicable, and the employer fails to establish a business necessity defense.

Example 1 - Adverse Impact (Different Jobs) - R, in its production plant, as a matter of policy provides separate shower, locker, and restroom facilities for its machinists, all of whom are White.  Machinists' helpers, all of whom are Black, are required to use the shower, locker, and restroom facilities in the foundry where almost all of the nonsupervisory employees are Black.  CP, a Black machinists' helper, filed a charge alleging that the policy constitutes discrimination against him because of his race, Black.  R contends that the machinists refuse to use the same facilities as the machinists' helpers, but that this is based on job status and not race.  There is, however, no seniority or union contract basis for the difference.  Since the charge concerns racially segregated facilities, the Act is violated.

(c)        Sexually Segregated Facilities and Equipment -

An employer's policy or practice of segregating its facilities on the basis of sex can also result in prohibited discrimination. Unlike racial discrimination respecting segregated facilities, here the EOS may also be faced with defenses based on the BFOQ exception to the act and state benevolent or protective laws.  The EOS should note, however, that the BFOQ exception is to be narrowly construed, and state laws in conflict with Title VII are superseded by that Act. (See § 625, BFOQ, for a thorough treatment of these problems.)  Otherwise, prohibited disparate treatment occurs where women are treated differently from men because of their sex, and the employer is unable to prove that the difference in treatment is based on legitimate, nondiscriminatory reasons.

Example 1 - Desk Assignments - R, a large service-oriented employer, has a staff which is 80% female and 20% male.  R formerly only hired females into technical and clerical positions and males into professional positions.  After the passage of Title VII, R began hiring females into professional positions.  Under R's open floor space utilization plan, only the office manager has an office, all other employees' desks are placed in accordance with their respective rank or status, with preferential locations allotted to the professional employees.  Nonetheless, professional female employees are assigned desks in the area occupied by the clerical and secretarial employees.  CP, a female professional employee, filed a charge alleging that this practice constitutes sex discrimination.  According to CP, male professional employees hired at the same time or after her received desk assignments in a preferential location, e.g., near the windows. R's contention that it felt the female professional employees would be more comfortable if their desks were located with the female clerical and secretarial employees, does not constitute an adequate justification for the segregation.

Example 2 - Sleeping and Restroom Facilities - R, a large shipping concern, has a policy against hiring female crew members on seagoing vessels.  According to R, it cannot hire female crew members because it cannot provide them with separate sleeping and restroom facilities. R further states that arranging separate facilities would either make for insurmountable scheduling problems or would constitute an unreasonable expense.  CP, a female applicant for a crew member position, filed a charge alleging that R's policy discriminates on the basis of sex in violation of the Act.  R's defenses based on scheduling and expense are not adequate to justify the segregation. Expense of correction cannot constitute a business necessity.  (See generally Commission Decision No. YNY 9-047, CCH EEOC Decisions (1973) ¶ 6010.)

The adverse impact theory is also applicable to charges alleging prohibited sexually segregated use of facilities.  In order to establish adverse impact in this respect, a female charging party would have to establish that women were disproportionately affected because of their sex by a neutral rule or policy and that the respondent could not prove that its use constituted a business necessity or came within an exception to the Act.

Example 3 - Adverse Impact (Same Job) - R, an insurance company, provides cars to its outside claims adjustors to investigate claims. Employees with the greatest length of service get their choice of cars.  Employees with less service get what is left over.  This policy was instituted after the passage of Title VII, at which point the employer began hiring females as outside claims adjustors.  Prior to that time, the employer hired females only as inside claims adjustors, based on the belief that it was not safe for females to perform the tasks of an outside claims' adjustor.  CP, a female outside claims adjustor, filed a charge alleging that the employer's policy regarding assignment of cars, although neutral on its face, nonetheless resulted in sex discrimination.  According to CP, all the new cars and those in working order are assigned to the male outside claims adjustors who have greater length of service.  Female outside claims adjustors rarely have cars which are necessary for them to perform the outside investigations.  As a result, females, even though their titles are outside claims adjustors, still function the same as inside claims adjustors.  Investigation revealed that the employer has 17 cars available for assignment to its 29 outside claims adjustors and that of the 12 outside claims adjustors who do not have cars 9 are female and 3 are male. The 12 outside claims adjustors without cars have the least amount of service with the employer.  The employer was unable to prove a business necessity defense particularly since assigned cars sat idle two days a week. Therefore, the assignment policy is discriminatory.

(d)        Commission Decisions

(1)        Company-Owned Community - In Commission Decision No. YB 19C-144, CCH EEOC Decisions (1973) ¶ 6082, the Commission found that in a respondent-owned community intended to benefit the employees, Black and White employees were segregated with respect to housing, churches, and swimming pools.  Housing provided for the respondent's White employees was substantially better, more valuable, and had running water and indoor toilets. Housing provided for Black employees was less valuable, and only a few houses had running water and indoor toilets.

The Commission also found that the respondent's subsequent transfer of ownership of these facilities to the employees, the church, and employee groups did not relieve the respondent of liability.  The respondent was required to act affirmatively to eliminate the segregation and integrate the employees.  Commission Decision No. YB 19C-144, supra.

(2)        Housing Accommodations - In Commission Decision No. 74-25, CCH Employment Practices Guide ¶ 6400, the Commission found the respondent's practice of putting Black firefighters in one station house, with placing White firefighters in another, was discriminatory.  (See also Commission Decision No. YB 19C-144, supra, set out above.)

In Commission Decision No. 72-1292, CCH EEOC Decisions (1973) ¶ 6356, the Commission found the respondent's practice of providing housing for male employees but not for similarly situated female employees to be discriminatory.  In this decision, males were permitted to live in barracks which were located at the job site, but females were not granted this job benefit.  The respondent's defense of his actions, based on business necessity, was rejected since the financial expense of correction does not constitute an adequate business necessity in race, sex, or national origin discrimination cases.

(3)        Segregated Facilities and Equipment - In Commission Decision No. 71-2344, CCH EEOC Decisions (1973) ¶ 6257, the Commission concluded that "[t]o maintain separate and racially identifiable facilities, whether through custom and usage, freedom of choice, or whatever, is to segregate employees because of their race within the meaning of § 703(a) [of Title VII]."  (See also Commission Decision No. 70-221, CCH EEOC Decisions (1973) ¶ 6088.)  In those decisions, the respondent maintained racially separated lockers, showers, and restrooms.

In Commission Decision No. 71-359, CCH EEOC Decisions (1973) ¶ 6172, the Commission found the respondent's practice of restricting Black production workers to use of the drinking fountain and restroom in the production department, while providing White employees in the personnel office with exclusive use of cleaner, better maintained facilities, to be discriminatory.

In Commission Decision No. 70-94, CCH EEOC Decisions (1973) ¶ 6055, the Commission found the respondent's practice of maintaining a combination lunchroom-restroom in which Black production workers are separated from White maintenance workers by a partition or wall to be discriminatory.

In Commission Decision No. 71-1876, CCH EEOC Decisions (1973) ¶ 6272, the Commission found that the respondent is still liable for discrimination where it discontinues the practice of maintaining segregated restrooms, locker rooms, and drinking fountains, but has not communicated the change to its employees, or has merely allowed freedom of choice.

In Commission Decision No. YME 9-068, CCH EEOC Decisions (1973) ¶ 6039, the Commission found that the respondent is still liable for discrimination where it communicates the nonsegregated use of its facilities, but the facilities remain segregated because Black employees are harassed and intimidated when they attempt to integrate the facilities, and the respondent does not affirmatively act to integrate their use.

In Commission Decision No. 74-25, CCH Employment Practices Guide ¶ 6400, the Commission found the practice in racially mixed firehouses of maintaining segregated facilities and equipment to be discriminatory.  In that case, beds were allocated on a racial basis so that regardless of the shift or work section, the "Black beds" were shuttled back and forth for use by only the Black firefighters.

In Commission Decision No. 70-920, CCH EEOC Decisions (1973) ¶ 6156, the Commission found that the employer's practice forbidding females from wearing slacks coupled with providing only men's bicycles for travel between buildings within the complex to be sexually discriminatory.

(e)        Court Cases

In Domingo v. New England Fish Co., 445 F. Supp. 421, 16 EPD ¶ 8207 (W.D. Wa. 1977), the court found the employer's practice of housing Native American seasonal employees in different bunkhouses from similarly situated White employees to be discriminatory.  The employer's assertions that the housing assignments were based on efficiency, economy, time of arrival, and work crews were found not to constitute an adequate business necessity defense, even if supported by the evidence.

In McLean v. State of Alaska, 583 P.2d 867, 18 EPD ¶ 8787 (Ak. S.Ct. 1978), a state court found that the employer acted overzealously to end sex discrimination when it assigned male and female employees to the same sleeping quarters at the same times.  Other more reasonable alternatives such as assigning two females to one stateroom and two males to another were recommended.

In Williams v. Yazoo Valley Minter City Oil Mill, Inc., 469 F. Supp. 37, 20 EPD ¶ 30,200 (N.D. Miss. 1978), the court found that where the employer provided housing for its White employees which was convenient, suitable, and adequate, but provided inferior and substandard housing for its Black employees, curing the discrimination would entail, among other things, an appropriate adjustment in the rents.  In that case, despite the relative condition of the housing, Blacks paid considerably higher rents.

In Harrington v. Vandalia-Butler Board of Education, 585 F.2d 192, 18 EPD ¶ 8828 (6th Cir. 1978), cert. denied, 411 U.S. 932, 19 EPD ¶ 9125 (1979), the court found the employer's practice of providing its male physical education teachers with private toilet, locker, and shower facilities, and secure self-contained offices, while obligating female teachers to use student facilities, and not providing them with self-contained secure offices, to be discriminatory.

In Turner v. Firestone Tire and Rubber Co., No. C-69-250, 1971 WL 219, 4 EPD ¶ 7798 (W.D. Tenn. 1971), the court suggested that, as in the case of segregated lockers, desegregation could easily be accomplished by reassigning the lockers in an equitable, nondiscriminatory manner.  (See also Buckner et al. v. Goodyear Tire and Rubber Co., et al., 339 F. Supp. 1108, 4 EPD ¶ 7794 (N.D. Ala. 1972).)

618.3          Segregation of Employees

(a)        General -

Like the segregation of facilities and equipment, the actual segregation of employees because of their race, color, sex, national origin, or religion can also violate the Act.  As is suggested in § 618.2, above, most of the case and decisional law deals with segregation of facilities and equipment.  Segregation of employees, although a natural outgrowth of use of facilities and equipment, is nonetheless merely incidental to that type of discrimination.  This approach is particularly appropriate because, in the workplace, the emphasis with respect to segregation is on the use of facilities or equipment.  Less frequently as indicated below, segregation of employees occurs independent of the use of equipment or facilities.  It is those situations where use of facilities or equipment are not involved that are treated in this section.

The EOS should also note that many situations where employees are apparently segregated are treated in § 618.7 in terms of discriminatory as opposed to segregated classifications of employees or jobs.  The emphasis in this respect is on the job classification or category to which employees are placed in the workplace or work setting, not on the employee.  (See § 618.7.)

In terms of disparate treatment, a protected group or class member cannot be treated differently with respect to the same policy or practice, nor could different policies or practices be applied to protected group or class members based on their protected status, without a legitimate, nondiscriminatory reason for the difference in treatment.  For example, a prima facie case of discrimination would be established if the employer had a policy of assigning Blacks to one section of the plant and Whites to another, or women to one production line and men to another.  The same is also true if the employer has no policy, but nonetheless Blacks are assigned to only one section of the plant, or women are assigned to only one production line.

Example 1 - Disparate Treatment - R is a large service-oriented employer located in an urban setting that has, in addition to its principal facility, two separately maintained data processing centers.  One of the data processing centers is located in the city's Black neighborhood, and all of its employees are Black.  The other is located in one of the city's White neighborhoods, and all of its employees are White.  R has a policy against hiring Whites for employment in the Black center, and Blacks for employment in the White center.  CPs, both White and Black, filed charges alleging that R's policy of racially segregating its data processing employees constitutes prohibited race discrimination. R's attempt to justify the policy as providing locally available employment to both Black and White employees is not adequate.  In this case, the distinction is based on the racial composition of the neighborhood, and it is not enough that if a White job applicant lived in the Black neighborhood that person would then be considered for employment at the Black center.  The policy is, therefore, discriminatory.

Example 2 - Disparate Treatment (Statistical Disparity) - R has two production lines.  One is 98% male and 2% female.  Females on this line perform special delicate light assembly functions.  The other is 95% female and 5% male.  Males assigned to the practically all female line have quality control responsibilities or are responsible for heavy lifting and packaging.  There is no indication that sex is a BFOQ for any of the duties performed by males on either line.  R contends that separating male employees from female employees is necessary to maintain productivity and to keep the employees from "horsing around."  Investigation showed that "horse play" exists despite the segregation, and there exists no evidence that productivity would suffer if the lines were fully, sexually integrated.  R's reasons for the segregation of the sexes do not constitute, a legitimate, nondiscriminatory justification for its actions.

In terms of adverse impact, where the segregation of employees is the result of a neutral policy or practice that disproportionately affects protected group or class members, the Act is violated if a business necessity defense cannot be established.

Example 3 - Adverse Impact - R, a large manufacturer, has a substantial warehouse operation (40 employees) to handle the packaging, storing, and shipping of its finished product.  Employees are rotated through the various warehouse functions based on daily assignments.  The order of rotation is determined by R's job needs, daily availability of employees, and employee familiarity with particular jobs or pieces of equipment.  R contends that this facially neutral assignment policy or practice promotes efficiency.  CPs, Black employees of the warehouse workforce, contend that they are more frequently assigned to packaging duties which are the least desirable.  They also contend that when they are assigned to storing and shipping duties they are almost always assigned the older, barely operational forklifts.  Investigation revealed that, although R's workforce is only 20% Black, Blacks are disproportionately assigned to packaging duties.  Also, of the 9 forklifts, 7 are in good condition and 2 are in very poor condition.  Black employees are disproportionately assigned to the 2 forklifts in poor condition.  There was no showing that the assignment policy promotes efficiency, and R was unable to otherwise justify the rotating daily assignment policy as a business necessity, therefore, the Act is violated.

Problems involving segregation of facilities and equipment are treated in § 618.2, while problems involving discriminatory job classifications are treated in § 618.7 of this manual.  Therefore, those sections should also be referred to for examples of discriminatory policies or practices.  Those sections differ in that the segregation of employees is only incidental to segregation of facilities and equipment or jobs and job classifications.

(b)        Commission Decisions

In Commission Decision No. 71-453, CCH EEOC Decisions (1973) ¶ 6205, the Commission found that the respondent discriminatorily divided its employees into four work gangs. Three were Black and one was White.  The practice was found discriminatory since there was no evidence that the segregation was based on seniority or any other factor except race.

Reference should also be made to Commission Decision No. 74-25, supra.

In Commission Decision No. 70-64, CCH EEOC Decisions (1973) ¶ 6046, the Commission found the employer's practice of maintaining racially segregated payroll lines to be discriminatory.  The employer's contention that the segregation resulted from racially segregated badge number assignments which were allocated to facilitate recordkeeping for EEO-1 forms did not constitute an adequate justification.

618.4          Segregated Employee Activities

(a)        General -

This section deals with employee activities, other than actual job performance or duties, which affect an employee or applicant, and which are conducted on a segregated basis.  The most common forms of this type of segregated activity, which are treated below, are segregated employee parties and clubs.  To the extent the segregated activities are employer sponsored, the potential for prohibited discrimination exists.  (Remember that Title VII only prohibits discrimination within the employment context.)  Sponsoring by the employer includes: making available company time, facilities, or premises, and other forms of official or unofficial encouragement or participation, such as actual membership, dictating policy, and direct or indirect funding of the social clubs or parties. For example, the employer's attendance at meetings of an all-White employees' business or social club which is limited in membership to its own employees, constitutes sponsorship of the club, even though the employer does not hold office or otherwise directly participate in the meetings.

Following are examples applying the disparate treatment and adverse impact theories of discrimination to segregated employee activities.

Example 1 - Disparate Treatment - Sexually Segregated Activity - R, a large manufacturer, helped organize its employees into teams to participate in the company's name in a local bowling league.  The employees were organized into two teams, one female and the other male. CP, a female bowler assigned to the female team, filed a charge alleging that this constituted sex discrimination.  According to CP, the majority of the teams in the league were mixed, half male and half female, and R did not give its employees the opportunity to compete on a mixed basis.  R simply responded that it would not allow a mixed team to wear the company's shirt, regardless of what other employers were doing or what the employees preferred.  R believed it was thereby protecting the reputations of its female employees.  Mixed employee activities apparently led to other "disrespectful" conduct.  Since R's justification does not constitute a legitimate, nondiscriminatory reason, the policy or practice is discriminatory.

Example 2 - Adverse Impact - Racially Segregated Activity - R, a large service organization, allowed its supervisory and managerial employees to form an association or club that met once every two weeks on the premises to discuss employment related issues and opportunities. Promotions are made from among the attendees or are based on recommendations of the attendees.  Only supervisors and managers are invited to meetings.  CP, a Black employee denied promotion to a supervisory position, filed a charge alleging that R's policy or practice of condoning the club, and of promoting from within the group or based on the group's recommendations, constitutes discrimination against him because of his race (Black). According to CP, although facially neutral, the result of such an association and promotion scheme is to discriminate against him and other Blacks since there were no Black supervisors or managers.  Since R was unable to justify the practice or policy as a business necessity, it is discriminatory.

(b)        Segregated Employee Clubs -

The EOS should note at the outset that not all employee social or business clubs are prohibited by Title VII whether they are segregated or not, or whether they discriminate or not.  Only employer sponsored segregated social clubs composed of employees of a particular employer or several employers if multiple employer sponsoring is involved, potentially violate the Act.

Example 1 - Racially Segregated Social Club - R, a large manufacturer, as a good will gesture, allowed its employees to use the cafeteria at lunch and during the off-duty time to form social clubs to arrange afterwork employee social activities.  One club was White and the other Black.  The clubs arranged company picnics, softball games, and other employee social events along racial lines.  CP, Black, filed a charge alleging that irrespective of employee preference, R's making available company premises constitutes prohibited sponsorship of the segregated employee clubs.  Since R's only justification, employee preference, is inadequate, the practice is discriminatory.

Example 2 - Sex Segregated Management Club - R, a large service organization, allows company time and facilities to be used by its employees who have formed a management club.  The employer does not belong to the club, but the employer attends meetings and encourages its managerial and supervisory employees to belong. Although there are a number of female managers and supervisors, the club is all male.  CP, a female manager, applied but was denied membership to the club.  She alleges that the denial was based on her sex, and constituted sex discrimination.  CP's denial of membership, based on an assumption that she would not be comfortable participating in activities where all others involved were male, does not justify the sex segregation.

(c)        Private Membership Clubs -

In terms of a private membership club as an employer and a separate distinct organization with a membership generally composed of other than employees, § 701(b)(2) of Title VII provides:

[t]he term employer...does not include...a bona fide private membership club (other than a labor organization) which is exempt from taxation under Section 501(c) of the Internal Revenue Code of 1954....

The Internal Revenue Code, 26 U.S.C.  § 501(c)(7) provides an exemption for:

[c]lubs organized and operated exclusively for pleasure, recreation, and other non-profitable purposes, no part of the net earnings of which insures to the benefit of any private shareholder.

The issue of whether a club qualifies as a private membership club so as to enable the Commission to assume jurisdiction over it is non-CDP.  The EOS should consult forthcoming § 605.9(e), Jurisdiction, for assistance in preparing the RFI, and contact the Office of Legal Counsel, Guidance Division for further assistance.

Another issue the EOS might encounter is whether an employer that pays the membership dues or fees for its employees that belong to a private membership club that discriminates in its membership policies or practices, as is the case in the example below, violates the Act.  This issue is also non-CDP; therefore, the Office of Legal Counsel, Guidance Division should be contacted if it arises.

Example - Employer Payment of Fees - R, insurance company, pays the membership fees of its employees who are members of a private membership club.   CP, a Jewish employee of R, applied for but was denied membership. Thereafter, CP filed a charge alleging that the denial was based on his religion and that R, his employer, was discriminating against him by continuing to pay the membership fees of its other non-Jewish employees.  Investigation revealed that the club did not permit Jews to be members or guests and that it was virtually impossible to be successful in the insurance industry without access to the club.  (This issue is non-CDP; therefore, the Office of Legal Counsel, Guidance Division should be contacted if it arises.)

(d)        Segregated Employee Parties -

Like segregated employee social or business clubs, segregated employee parties that are employer sponsored, encouraged, or condoned also can violate the Act.  In this respect, the Act prohibits employers from holding separate Christmas, promotion, retirement, social, or other types of parties for employees based on their respective race, color, sex, religion, or national origin.  In most situations involving prohibited segregated parties, as in the following example, as long as there is employer sponsorship, the employer is liable for the discrimination.

Example - Discriminatory Segregated Employee Party - R, a large manufacturer, has a racially integrated workforce.  At Christmastime, it requested a White foreman to organize and set up a party for its White employees.  A Black foreman was requested to organize and set up a party for the Black employees.  R agrees to donate money, space, and company time for both parties.

Where the employer's activity amounts to sponsorship of the segregated employee parties, it is the sponsorship of the activity by the employer, as much as the fact that the activities are segregated, that makes the employer liable for the prohibited discrimination.

(e)        Commission Decisions

In Commission Decision No. 74-25, CCH Employment Practices Guide ¶ 6400, the Commission found that employee "Supper Clubs" which excluded Blacks were discriminatory.  In that situation, White firemen on a shift contributed money to purchase food which cooked communally, and the Black firemen were excluded from participation

In Commission Decision No. 71-2330, CCH EEOC Decisions (1973) ¶ 6558, the Commission found that the employer is still liable for discrimination with respect to an all-White employee social club, even after it cancels its membership and support in the form of a dues check-off, where it provides the club with profits from vending machines on the premises.

In Commission Decision No. 71-1418, CCH EEOC Decisions (1973) ¶ 6223, the Commission found that the respondent could not cure the practice of discriminating with respect to membership in an all-White employee social club by eliminating its support for the White club, while continuing to support the Black club.  The employer was obligated to attempt to make the Black or White club open to all.

In Commission Decision No. 71-32, CCH EEOC Decisions (1973) ¶ 6160, the Commission found that the respondent's practice of allowing racially segregated Christmas parties to be held on the premises on company time was discriminatory.  There, employees also exchanged gifts by drawing names.  White employees only drew names from among White employees, and Black employees only drew names from among Black employees.

In Commission Decision No. 72-0978, CCH EEOC Decisions (1973) ¶ 6345, the Commission found the employer's practice of allowing employees to organize and conduct racially segregated Christmas parties to be discriminatory, even though the employees preferred the arrangement.

(f)        Court Cases

In Johnson v. Ryder Truck Lines, No. 73-3, 1975 WL 265, 12 FEP Cases 895, 905 (W.D. N.C. 1975), the court found the respondent's cancellation of both the White and the Black employees' parties, after the Black employees learned more money would be allocated for the White party and requested an integrated party, to be discriminatory.

618.5          Segregated Employee Unions -

Section 703(c)(2) of Title VII provides that "[i]t shall be an unlawful employment practice for a labor organization...to limit, segregate, or classify its membership, or applicants for membership...or tend to deprive any individual of employment opportunities...or otherwise adversely affect his/her status...."  Therefore, the act is violated if there is one union local for Whites and another for Blacks, or one local for women and another for men.  Because of the possible negative effect, psychological or otherwise, on future or potential employees, it does not matter if the segregation is based on employee preference.  The potential effect on status or the theoretical possibility of denial of opportunity is enough to void the employees' preference.  Therefore, the respondent's contention that Blacks or women prefer their own local is not an adequate defense to the discriminatory segregation.  See generally EEOC v. International Longshoremen's Assn., 511 F.2d 273, 9 EPD ¶ 10,061 (5th Cir. 1975), cert. den. 423 U.S. 994, 10 EPD ¶ 10,511 (1975). Additionally, in EEOC v. Longshoremen's Assn., Id. it did not matter that Black and White union members were paid equal wages, had equal numbers of representatives, had a common seniority and hiring hall system, or had equal employment opportunities since segregated unions by their very nature inflict or potentially inflict psychological harm.  (See also U.S. v. Jacksonville Terminal Co., 451 F.2d 418, 3 EPD ¶ 8324 (5th Cir. 1971).)  The same is true of sexually segregated unions in that there is inherent potential for abuse, controversy, and suspicion if separate locals are maintained.  (See Evans v. Sheraton Park Hotel, 503 F.2d 177, 8 EPD ¶ 9661 (D.C. Cir. 1974); and Commission Decision No. 70-599, CCH EEOC Decisions (1973) ¶ 6121.)

In both instances the remedy should be merger of the segregated union locals.  EEOC v. Longshoremen's, supra. Subsequent to merger of the once segregated unions, the union may still be liable for discriminatory segregation if there are provisions in its contract with the employer that result in segregation of the employees in the workforce because of sex, race, color, religion, or national origin.  (See § 630, Unions, for a further discussion of this problem.)

618.6          Limiting Employees

(a)        General -

As well as prohibiting segregation, § 703(a)(2) of Title VII specifically makes it unlawful to limit employees or applicants in such a manner as to adversely affect their status or deny them employment opportunities.  Limiting employees in this respect means limiting the actual numbers of minorities or women hired, limiting the number of minorities or women in certain jobs, limiting the promotional opportunities of minorities or women, and limiting the duties or responsibilities of minorities or women so as to preclude their advancement.  To the extent the limiting is based on prohibited reasons, is not exempt, and cannot be justified by legitimate, nondiscriminatory reasons or as a business necessity the Act is violated.

Example 1 - Discriminatory - Sexually Limiting Employment - R, a large service industry, hires male professionals as management trainees, with additional responsibilities and duties.  Equally qualified females are simply hired into professional slots, without being designated as management trainees.  The designation plus the additional duties and responsibilities are considered as important indications of promotability.  CP, a female hired into a nonmanagement trainee professional position, filed a charge alleging that the practice constitutes sex discrimination and severely limits or restricts her opportunity to advance. Investigation revealed that R only has one female supervisor and no female managers, as compared with 14 male supervisors and managers.

Example 2 - Discriminatory - Racially Limiting Employment - R, a large manufacturer, had a racially mixed workforce.  However, no Blacks were hired into the machine shop, either as machinists or helpers, and only a few Whites were hired into the foundry.  Foundry jobs are lower paying and less prestigious, and employees hired into the foundry are not considered for vacancies in the machine shop. CP, a Black employee in the foundry department, applied for but was denied a machinist's helper position.  CP alleges that the denial was based on his race, Black, and that his opportunities for advancement were limited by his being assigned to the foundry.

Another problem that the EOS might encounter in this respect involves the limiting of employees by use of lines or progression.  (See § 618.1(d)(iii).)  When a seniority system is involved § 616 should be consulted.  Otherwise, as is indicated in the example below, lines of progression that disproportionately exclude females can violate the Act if they cannot be justified as a business necessity.

Example 3 - Discriminatory - Lines of Progression - R, a large production facility, requires that all persons both male and female, hired after 1974 must spend a minimum 30-day probationary period in its pot room before being eligible for assignment to other positions. CPs, females, alleged that as a result of this policy they are disproportionately excluded from jobs.  As evidence, CPs show that although the SMSA is 42% female, females occupy only 3% of R's laborer jobs and that in the past 3 years none of the 78 new female hirees has survived the 30-day probationary period, compared to 50% of the 586 male hirees.  The pot room jobs are allegedly too arduous, hot, heavy, and dirty for the new female hirees. According to the CPs, the requirement was instituted to prevent females from gaining jobs at R's facility.  R contends that the pot room policy is not discriminatory because it is equally applied to both sexes.  Considering the disproportionate exclusion of females, adverse impact and therefore a prima facie case was established.  Also, R was unable to establish a business necessity defense by showing that skills learned in the pot room job are integral to future job functions in its other positions, such as truck driver, janitor, or machinist.

Many problems involving limiting employees are found in other sections of this manual.  Placing women or minority employees in discriminatory job classifications may in many cases preclude advancement into better, higher paying, more prestigious jobs.  Additionally, the particular job or territorial assignment given to women or minorities can limit employment opportunities and advancement.  Therefore, for classification and assignment problems §§ 618.7 and 618.8 should be consulted.  Those sections view the problem in terms of the job categories or assignments, not in terms of the employees.

(b)        Commission Decisions

In Commission Decision No. 76-05, CCH Employment Practices Guide ¶ 6600, the practice of employing males as heavy machine operators, material handlers, and shippers, while employing females as light machine operators and handworkers, was found to be discriminatory.  There was no BFOQ, and the respondent's contention that the heavy work was too strenuous for females was found not to have a factual basis.

In Commission Decision No. 76-77, CCH Employment Practices Guide ¶ 6656, the Commission concluded that the respondent maintained discriminatory classifications or job assignments where it employed few females as Administrative Assistants to the Principals in school systems because, allegedly, males are better disciplinarians.

In Commission Decision No. 76-126, CCH Employment Practices Guide ¶ 6688, the Commission found the employer's refusal to employ female counselors for male inmates, even though sex was not a BFOQ for the job, to be discriminatory.

In Commission Decision No. 73-0479, CCH Employment Practices Guide § 6381, the Commission found that the employer discriminated against women and minorities with respect to job classifications and assignments since statistics showed that those groups were restricted to lower jobs and pay levels.  Also, discrimination was found since female supervisors were paid less for supervising female classifications.

The EOS should also refer to § 618.7(b) for Commission decisions with situations where employees are limited in their ability to advance.

618.7          Classifying Employees

(a)        General -

Section 703(a)(2) specifically makes it unlawful under Title VII to classify employees or applicants in such a manner as to adversely affect their status or deny them employment opportunities.  Classification in this respect means to categorize the employee or the job for a reason, or in a manner, prohibited under Title VII, e.g., reserving janitorial jobs for Blacks and employing Blacks almost exclusively as janitors.  Discriminatory classification of employees or applicants includes assigning women and minorities to menial, dirty, confining, less desirable, less prestigious, nonsupervisory, and lower paying jobs.

In many respects classifying employees takes on the obvious and blatant characteristics associated with White only signs over restroom facilities.  (See the discussion in § 618.2.) In some cases, although there may not be any printed signs, inspection of the employer's records or on-site visual observations may reveal the absence of minorities and women in supervisory or more desirable or prestigious jobs or job classifications.  For instance, in Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 3 EPD ¶ 8021 (8th Cir. 1970), the respondent's records showed that only 51 of 2,736 employees were Black.  Forty-six of the Black employees worked as janitors, cleaning ladies, or laborers, and the remaining five worked as coin collectors or stock men.  No Blacks were employed as salespersons, technicians, telephone operators, or secretaries. (See also U.S. v. Medical Society of South Carolina, 298 F.Supp. 145, 2 EPD ¶ 10,002 (D.C. S.C. 1969), which shows how Blacks can be and are classified within a hospital setting.)  Such startling evidence is potentially no less indicative of discrimination than "White only" signs over restroom facilities.  The classifications must, where possible, be integrated, and the discrimination against women and minorities eliminated.  In solving such problems, all the bases (race, color, sex, religion, and national origin), as well as all the theories (disparate treatment, adverse impact, perpetuation of past discrimination, and religious accommodation) discussed in § 604, Theories of Discrimination, are applicable.

In dealing with male-only jobs, the EOS should remember that, to the extent that sex is not a BFOQ necessary for the safe and efficient performance of the jobs, the jobs cannot be classified on the basis of sex.  (For a detailed discussion of this problem the EOS should refer to § 625, BFOQ.)  Generally, the act of precluding women from doing certain heavy or dirty jobs is rejected under Title VII, even if based on benevolent concerns. Title VII vests individual women with the power to decide whether or not to take on certain tasks.  (See Weeks v. Southern Bell Tel. and Tel. Co., 408 F.2d 228, 1 EPD ¶ 9970 (5th Cir. 1969).)

Problems relating to sexual classifications are also specifically addressed in the Sex Discrimination Guidelines at 29 C.F.R. ¶ 1604.3 which provide:

Separate Lines of Progression and Seniority Systems --

(a) It is an unlawful employment practice to classify a job as "male" or "female" or to maintain separate lines of progression or separate seniority lists based on sex where this would adversely affect any employee unless sex is a bona fide occupational qualification for that job.  Accordingly, employment practices are unlawful which arbitrarily classify jobs so that:

(1) A female is prohibited from applying for a job labeled "male," or for a job in a "male" line of progression; and vice versa.

(2) A male scheduled for layoff is prohibited from displacing a less senior female on a "female" line of progression; and vice versa.

(b) A seniority system or line of progression which distinguishes between "light" and "heavy" jobs constitutes an unlawful employment practice if it operates as a disguised form of classification by sex or creates unreasonable obstacles to the advancement by members of either sex into jobs which members of that sex would reasonably be expected to perform.

This issue is discussed in detail in § 616. Seniority.

As with previously segregated facilities, once the policy or practice of maintaining segregated classifications has ended, the employer must communicate the change.  In some instances, the employer might also need to convince employees that they will be considered for previously segregated jobs or job classifications on a nondiscriminatory basis.  (See generally Commission Decision No. 72-1919, CCH EEOC Decisions (1973) ¶ 6370, n.3.)

As is indicated by the subject headings below, there is some overlap in this area.  Also, job and territorial assignments, which relate to both limiting and classifying, are treated separately.

(1)        Disparate Treatment - As is indicated in the examples below, disparate treatment occurs where protected group or class members are treated less favorably than other similarly situated employees for reasons prohibited under Title VII.  (See § 604, Theories of Discrimination.)  In terms of classifications, the Act is violated where women or minorities are classified or categorized into jobs because of their protected status, and the employer is unable to show that the disparate categorizations or classifications are based on legitimate, nondiscriminatory reasons.  The disparate treatment can occur on an individual or on a group or class basis.

Example 1 - Disparate Treatment - R, a service organization, had two departments, a maintenance department and a janitorial department.  There were no Black employees in R's maintenance department, and the only White employees in R's janitorial department were managers or supervisors.  CP, a Black janitorial employee, who applied for a vacant position in the maintenance department, but was rejected, filed a charge alleging racial discrimination.  R alleges that CP was rejected because he lacked the requisite qualifications. However, investigation revealed that CP's qualifications were on a par with those of other newly hired employees in the maintenance department.  The reason given by R is therefore pretextual, and prohibited discrimination has occurred.

Example 2 - Pattern and Practice - R, a public employer, as shown by statistical tables, systematically excluded Black employees from many of its departments and agencies.  There are no Blacks in some agencies and departments, and Blacks in other agencies and departments are relegated to traditionally Black job categories, such as custodial worker, laborer, and warehouseman.  CPs, Blacks in traditionally Black jobs, charged that R engaged in a pattern and practice of discrimination.  This is amply supported by the available statistical data and instances of discrimination against individuals.  Since R could not prove that its practices were based on legitimate, nondiscriminatory reasons, the practices were found to be discriminatory.  (See U.S. v. Frazer, 317 F.Supp. 1079, 2 EPD ¶ 10,281 (M.D. Ala. 1970), supp. relief granted, 1976 WL 729, 14 EPD ¶ 7599 (M.D. Ala. 1976).)

(2)        Adverse Impact - Women or minorities can establish a prima facie case of adverse impact by showing that they are disproportionately affected by a neutral policy or practice involving classifications because of their protected status.  The burden then shifts to the employer to justify the policy or practice as a business necessity.  As is indicated in the examples below, statistical evidence frequently plays an important role when job classifications are evaluated for adverse impact.

Example 3 - Adverse Impact - R's workforce is 15% Hispanic, 30% female, and 55% Anglo male. 92% of R's Hispanic and female employees are assigned to piece work.  Eighty-seven percent of R's Anglo male employees receive full salary plus an increment for exceeding the equivalent of the piece work standard.  CPs, women and Hispanics, allege that they are being discriminated against because of their sex and national origin.  They allege that the piece work standard is hard to reach and consequently they are paid considerably less than Anglo male employees who receive full salary plus an increment.  As a neutral policy or practice, employees are assigned piece work until they have been employed 18 months and reach a predetermined proficiency level.  However, Anglo male employees have more time with the company; therefore, more of them are permanent and receive salary plus increment. Investigation reveals this to be accurate.  R could not adequately justify this policy or practice as it is not job related or based on a bona fide seniority system; therefore, it is discriminatory.

Example 4 - Adverse Impact - R, a large manufacturer, requires that its machine repairmen have a minimum of 4 years' experience. CP, Black, filed a charge alleging that this requirement although seemingly neutral results in the disproportionate exclusion of Blacks. According to CP, prior to enactment of Title VII, there were no Black machine repairmen.  At the time of the charge, only 1 out of 31 machine repairmen was Black.  The 4-year experience requirement acts to further exclude Blacks who are almost all in unskilled and semi-skilled job classifications.  R was unable to establish the 4-year experience requirement as a business necessity since it was previously waived on an emergency basis.  Those employees admitted to the classification during the waiver period successfully performed the job. (See generally Commission Decision No. 70-552, CCH EEOC Decisions (1973) ¶ 6139.)

(b)        Commission Decisions

In Commission Decision No. 70-47, CCH EEOC Decisions (1973) ¶ 6044, the Commission found the employer's practice of racially segregating its spinner and knitter job classifications to be discriminatory.  According to the employer, Blacks were excluded because they are not as dexterous as Whites.

In Commission Decision No. 71-1418, CCH EEOC Decisions (1973) ¶ 6223, the Commission found that an employer with a long history of maintaining racially discriminatory classifications continued to do so by disproportionately assigning newly hired Black employees to foundry and forge shop jobs.

In Commission Decision No. 72-1704, CCH EEOC Decisions (1973) ¶ 6365, the Commission looked at statistical data and individual instances of disparate treatment to find discrimination.  In that case, despite subsequent limited efforts to correct prior discriminatory practices, many formerly segregated job classifications remained substantially segregated. (See also Commission Decision No. 72-0978, CCH EEOC Decisions (1973) ¶ 6376.)

In Commission Decision No. 72-0976, CCH EEOC Decisions (1973) ¶ 6344, the Commission found the statistical disparity of Blacks in job categories in the respondent's workforce, as compared to Blacks in the SMSA, to be sufficient to conclude that the respondent maintained discriminatory job classifications.  There, of 110 employees, 13 were Black although the SMSA was 40% Black.  There were no Black officials, managers, sales workers, office workers, or skilled craftsmen, and the respondent's contention that the disparity was based on a collective bargaining agreement was found to be meritless.

In Commission Decision No. 72-1684, CCH EEOC Decisions (1973) ¶ 6360, where the evidence showed that Blacks held the dirty jobs such as janitor, grease rack, and tire repair and that the respondent maintained two divisions, one all Black and the other all White, the Commission found the practices discriminatory, despite the fact that Blacks expressed a preference for the segregated classifications.  The difference resulted from segregated union locals; therefore, the charging party lacked any real choice.

In Commission Decision No. 74-133, CCH Employment Practices Guide ¶ 6434, the Commission found adequate statistical evidence of exclusion of females from patrolman positions and other job classifications to infer the existence of a pattern and practice of discrimination.  Since the employer could not offer any legitimate, nondiscriminatory reason, the practice of maintaining sex-segregated job classifications was found to be discriminatory.

In Commission Decision No. 74-93, CCH Employment Practices Guide ¶ 6426, the Commission found that, even though female university faculty members were disproportionately concentrated in lower-level, nontenure positions, the evidence did not establish that the disproportionate exclusion resulted from discriminatory job classifications.  Females were granted tenure in approximately the same proportion as they were considered.

618.8          Job and Territorial Assignments -

Although an outgrowth of limiting and classifying problems, problems of job and territorial assignments have gained significant prominence and merit separate and distinct treatment.  In many instances, however, as when sharp distinctions cannot be made, the EOS may also need to consult § 618.6, Limiting Employees, and § 618.7, Classifying Employees.  The Commission decisions in §618.7(b) should also be consulted. 

The practice of assigning women and minority employees to less desirable, less prestigious, and lower paying jobs, as compared to similarly situated White or male employees, has often been found violative of Title VII.  For instance, to reassign a Black employee from a managerial to a non-managerial job as minority recruitment officer violates Title VII where the reassignment is based on race and cannot be justified on nondiscriminatory grounds.  In one case the reassignment was based on a racial stereotype that Blacks can better deal with and recruit Blacks.  See generally Knight v. County Civil Service Commission, 642 F.2d 157, 26 EPD ¶ 31,844 (2nd Cir. 1981), cert. denied, 454 U.S. 818, 27 EPD ¶ 32,145 (1981). (See also the examples which follow.)

The Act's prohibitions against segregated job assignments also include acts or practices involving supervisory employees. For example, Title VII is violated if the respondent assigns only Black supervisors to supervise Black employees or Hispanic supervisors to supervise Hispanic employees because of their protected status and without a legitimate, nondiscriminatory reason.  (See Commission Decision No. 70-552, CCH EEOC Decisions (1973) ¶ 6139.)  However, if the reason for the assignment of Hispanic supervisors is to overcome a language barrier (i.e., many employees only speak Spanish and bilingual supervisors some of whom just happen to be Hispanic are assigned to supervise them), Title VII is not violated even though the end result is that some Hispanics supervise only Hispanics.  A different result would occur if the respondent's actions were based on national origin, as opposed to language.  (See generally Rogers v. EEOC, 454 F.2d 234, 4 EPD ¶ 7597 (5th Cir. 1971), where the court suggests that patient segregation based on national origin could violate the Act.)

Example 1 - Nondiscriminatory Supervisory Assignment - R's workforce is 65% Hispanic (93% of whom speak only Spanish), 30% Italian (86% of whom speak only Italian), and 5% other (all of whom speak English).  R announces two supervisory vacancies and stresses that the successful candidates must be bilingual, English/Spanish and English/Italian.  Thereafter R promoted two bilingual employees. An English/ Spanish speaking Hispanic employee was promoted to supervise the Hispanic employees, and an English/Italian speaking Italian employee was promoted to supervise the Italian employees.  CP, a bilingual English/Italian speaking Italian employee who spoke no Spanish and who was not promoted, filed a charge alleging that he was not promoted to supervise the Hispanic employees because of his national origin, Italian. Investigation established that the language requirement was job related and that the respondent's actions were based on the language abilities of the promotees, not on their national origins.

Example 2 - Discriminatory Supervisory Assignment - R's workforce was 70% female (30% of whom were Hispanic), and 30% male (80% of whom were Hispanic).  All of the employees spoke at least some English, and all directions, rules, and regulations were given in English.  None of the ten supervisors was a female.  R announced a vacancy for a supervisory position.  One of the requirements was that the successful candidate be bilingual. The two top candidates were a bilingual English/ Spanish speaking Hispanic male and CP, a female, who was neither Hispanic nor bilingual, but who had superior qualifications in other respects.  R chose the male allegedly because he was bilingual and thus could better communicate with the Hispanic employees. Investigation revealed that the language requirement was not a job need and that R felt the employees would not work for a female supervisor.

The Commission has also found that the Act is violated when the respondent assigns territories or accounts on the basis of race, as where Black salesmen are assigned only the Black accounts or territories.  Commission Decision No. 70-350, CCH EEOC Decisions (1973) ¶ 6118; and Commission Decision No. 75-007, CCH Employment Practices Guide ¶ 6436.  The same is true if the assignment is based on national origin, color, religion, or sex, provided there is no adequate BFOQ exception or business necessity defense.

Example 3 - Discriminatory Assignment - R employs drivers that deliver its products to various segments of the city.  The city has several large, closely-knit, ethnic neighborhoods.  The best and highest paying routes are in the Irish (Protestants) neighborhood.  There is less of a market in the Jewish neighborhood, so it pays less.  CP, a Jew, alleges that he was discriminated against because of his religion (Jewish) when his bid on a route in the Irish (Protestant) neighborhood was denied.  The investigation revealed that the respondent did in fact make route assignments based on the religion of its employees.

If a BFOQ exception is asserted by the respondent, the EOS should refer to § 625, BFOQ, for assistance in analyzing and investigating the charge.

In addition to the above, there may be factual situations where an employer determines that it is necessary to make assignments along lines of race, color, sex, religion, or national origin.  One example which the EOS might encounter is set out below.  The matter of that example, i.e., assignment of Black undercover police officers to Black neighborhoods, is non-CDP.  The Office of Legal Counsel, Guidance Division should be contacted for assistance when charges arise attempting to establish a business necessity defense for undercover officer assignments based on race or for any other discriminatory assignment charge based on race in which the necessity for authenticity is raised as a business necessity.

Example 4 - Undercover Police Assignments - R, a municipal police department, established a large drug unit to cope with rising drug use and drug related crime.  The unit is 70% Black, 25% White, and 5% other.  There is a large urban area, mostly Black, in the city where drugs are the major problem.  As a matter of policy, R assigns undercover officers to areas where they apparently best fit in and will attract less attention.  The result is that all of the undercover policemen assigned to the Black area are Black.  CPs, White police officers, filed a charge alleging that this constitutes discrimination against them because of their race, White.  R contends that the assignment policy is necessary for it to carry out its mission of ensuring the public safety and also for the safety of its undercover officers.  According to R, White officers would "stand out" in the Black area and accordingly be placed in danger of their lives; therefore, its assignment policy is a business necessity. (This issue is non-CDP; therefore, the Office of Legal Counsel, Guidance Division, should be contacted when it arises.)

One court faced with a similar factual issue involving assignments of undercover officers and a parallel issue of race as a BFOQ found that race was not a BFOQ for undercover assignments.  In that case, Black officers alleged discrimination in that they were disproportionately assigned to undercover work to handle drug deals with Black suspects because of their race, Black.  According to the Black officers these assignments exposed them more frequently to life-threatening dangers and hardships and precluded them from being able to get the experience in other areas which would have made them eligible for promotion.  (See Segar v. Civiletti, 508 F. Supp. 690, 26 EPD ¶ 31,982 (D. D.C. 1981).)

618.9          Focus of Investigation -

The following are suggested areas of inquiry for the EOS to aid in his/her analysis and investigation of charges alleging prohibited limiting, segregating, or classifying of employees or applicants in such a manner as to affect their status or deprive them of employment opportunities.  For an additional discussion of investigative techniques, the EOS should consult § 602, How to Investigate; and § 604, Theories of Discrimination, should be consulted for applicability and use of appropriate Title VII theories and analyses.  For instance, a disparate treatment analysis will focus on a comparison of similarly situated individuals, while an adverse impact analysis will focus on the disproportionate effect a neutral policy has on protected group or class members based on statistical data.  The kinds of information needed for each type of analysis will therefore be different.

(a)        If the charging party or potential charging party is complaining about segregated facilities, employees, or activities that adversely affect his/her status or deny him/her employment opportunities, the EOS should attempt to secure the following information in documentary form, where available, from either the charging party or the respondent.

(1)        Secure a detailed statement from the charging party delineating exactly what facilities or activities are segregated and how.

(2)        Carefully question the charging party to determine the Title VII basis of the complaint, and the issues or allegations as they relate to a protected Title VII status.

(3)        Secure a list of other affected employees and potential witnesses.

(4)        Ask the charging party what evidence is available to support the charge.

(5)        If there are documents, the EOS should get copies.  If there are witnesses, the EOS should get their statements.  If an on-site inspection is made, record that information in the case file.

(6)        Determine how long the segregation has existed and what steps the respondent has taken to eliminate the segregation.  The EOS should also attempt to determine the atmosphere or environment out of which the charge arose.

(b)        The following information should be secured in documentary form, where available, from the respondent where the charge alleges segregated facilities, employees, or activities.

(1)        Determine whether the facilities or activities are or have ever been used or maintained on a segregated basis.

(i)         If yes, determine why they are or were segregated and how.  Where appropriate get a breakdown of employees by their Title VII status, as well as other documentation, or statements showing segregated use or activity.

(ii)        If yes, determine what defense or justifications the respondent offers for the segregation.

(2)        The EOS should determine what steps, if any, the respondent has taken to eliminate the segregated use of its facilities or activities.  The EOS should get available documentation and statements from witnesses about the respondent's action or inaction.  An on-site investigation may be appropriate.

(c)        If the charging party or potential charging party is complaining about segregated employer or union classifications that adversely affect his/her status or deny him/her an employment opportunity, the EOS should attempt to secure the following information in documentary form, where available from the charging party, union, or employer.

(1)        Secure a detailed statement from the charging party of the full extent and degree of his knowledge about the segregated employer or union classifications.

(2)        Get a list of other affected employees and potential witnesses with statements delineating actual job duties.

(3)        Get specific examples to support the general charges.

(4)        Determine if there is an EPA violation by analyzing wage data.

(d)        The following information should be secured in documentary form, where available, from the employer and the union where the charge alleges segregated employer or union classification.

(1)        Secure a breakdown of the employer's workforce by Title VII class (race, sex, etc.) showing classifications, assignments, and duties.

(2)        Secure written detailed job descriptions or evaluations including a statement about actual duties performed.

(3)        Secure a statement from the respondent of any justifications or defenses, as well as how long and why the segregation exists.

(4)        Secure any evidence of union acquiescence, encouragement, or participation.  If union collective bargaining agreements or seniority rights are involved, secure copies of the agreements and other evidence evincing such rights.

(5)        Get any evidence of action or inaction by the employer or union to end the segregated classifications.

618.10        Cross References

(a)        How to Investigate, § 602

(b)        Theories of Discrimination, § 604

(c)        Jurisdiction, § 605

(d)        Terms, Conditions, and Privileges, § 613

(e)        Seniority, § 616

(f)        BFOQ, § 625

(g)        Benefit Plans, § 627

(h)        Unions, § 630