Equal Employment Opportunity (EEO) laws define and prohibit “discrimination” at work. Discrimination is a term of art and it has required components in order to prove it exists. The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with seeing these laws are complied with. Employees can also hire private attorneys to advise them. EEO laws protect particular classes of people from discrimination. Sometimes people say EEO laws give these classes of people “superior” rights — not true. What they do is provide a certain minimum standard for treatment of employees in the workplace.
What are protected classes?
The particular classes of people who are protected are called “protected classes” which means they are protected from discrimination based upon the characteristics they possess which puts them in the class. For example, one protected class is race. Other federally protected classes are sex, age, disability, national origin, religion (and many others). These laws provide for equal, not superior, rights.
In addition to federal laws which protect classes of employees, there are also state laws which do the same thing. All the same federally protected classes are protected by state laws (race, sex, national origin, disability, color, age, religion, etc.) and in addition, states often add other protected classes. For example, in Oregon, a protected class is sexual orientation (including transgender), being a bone marrow donor, being an Olympic athlete and quite a few others.
The reasoning behind protecting certain classes of people is there is evidence that discrimination against those classes exists. Congress can’t just decide arbitrarily that a law protecting a certain group needs to be passed. First, it has to have evidence there is a problem.
When the Civil Rights Act of 1964 was passed, Congress had to think about whether people were being discriminated against on the basis of their race, sex, national origin, religion and color, and upon hearing the evidence, decided to pass the law protecting those classes. The Civil Rights Act of 1964 protects far more than employment — it protects the ability to walk into a business establishment and be served without regard to protected class and other things.
When we say “protects,” it is important to be clear about what is being protected. The only thing these laws protect is the right to work without being treated badly based on something we can’t control, like our skin color, our race, our sex, where we were born or our religion. Everyone has similar problems at work — there are things that go wrong, people aren’t always perfectly nice to us, we don’t get the raise we hoped for and so on. We’re like the track athlete running a race with hurdles; we have to leap hurdles all the time. All the EEO laws do is try to ensure that people in those protected classes don’t have to deal with more hurdles in addition to the ones that we all have to put up with.
Let’s put this into context with an example:
Assume our workplace is a manufacturing plant which creates widgets placed inside our customers’ thingamajigs to create a final product. This means we have to have technical staff to design our widgets and fix problems with them, line staff to produce the widgets, sales and marketing people who sell the widgets and administrative overhead staff like a CEO, Finance Director, secretaries, receptionists, information technology, human resources and an office manager.
Because production of our widgets depends on employees showing up to work at the manufacturing plant and making the widgets, we have attendance policies. What if we had attendance policies for people of one color and not for people of another color? What if we had attendance policies allowing men to cruise in a few minutes late because they stopped for coffee, but penalizing women who were late because they had kid duty in the morning?
This is why these laws were enacted — to put a stop to that sort of thing. And the very fact it struck you as wrong when you read it means the laws are working. At the time the Civil Rights laws were passed, the notion of people of color and women in this country being equal to white males was virtually non-existent. Now, we have a radically changed society in terms of equality and access to economic power, education and political voice. The Civil Rights laws set the goals, then dragged society along.**
The most well known laws which provide for protected classes in employment are:
- Title VII of the Civil Rights Act of 1964 (amended 1991) (Title VII), which protects sex, race, national origin, color and religion.
- Age Discrimination in Employment Act of 1967 (ADEA), which protects age (over 40)
- Americans with Disabilities Act of 1990 (ADA), which protects people who have disabilities and can perform the essential functions of the job (with or without a little help which is called “reasonable accommodation”).
There are a lot of other laws, including state laws which have both similarities and differences, and there are other sources of employee rights as well, including other statutes and common law.
What is prohibited by these laws?
The basic rule is that employers can’t do “bad things” to employees (in relation to their conditions or terms of employment) because of a protected class. There are three parts to this: (1) the employee was subjected to a tangible adverse action (i.e., something bad happened to the employee) with respect to a term or condition of employment (2) because of (3) the employee’s protected class. There are very specific ways to prove each of these parts (if you are the employee) or disprove any one of these parts (if you are the employer). If the employee proves all three of these things happened, the employee has proven discrimination, which is an unlawful employment practice. (It is far more complex than this, but consider this a very high level description.)
What are “terms and conditions of employment?”
Think about your work, or a place you want to work. You are offering to come to work to perform specific tasks and they are offering – what? Money, benefits, a work schedule, policies on how to behave in the workplace, a workplace (that isn’t dangerous), the tools necessary (or time and money to buy them) and so on. Money, benefits, work schedules, the workplace environment, tools and many other things that are part of the context of doing the job are “terms or conditions” of your employment.
Logically, the tangible adverse action, or “bad thing” an employer might do to an employee would be to negatively affect one of these terms or conditions of employment because it prevents the employee from being successful. The cases and courts are concerned with employer behavior which prevents an employee from doing the job for which they were hired, not protecting the employee from slights or other behavior which might be frustrating but which doesn’t rise to the level of interfering with terms and conditions of employment.
In other words, it’s not the employee’s subjective belief that the employer action was bad — it has to be actually, reasonably bad in the eyes of the law. For example, the employer might fire, demote, dock pay, discipline or reprimand, give an unfavorable schedule and many other things. Lawyers call this a tangible, adverse employment action. “Tangible” refers to the notion that whatever happened to the employee, we can tell that it happened (they actually were disciplined, fired, etc). It wasn’t just the employee’s subjective feeling something bad happened. Adverse is, of course, the “bad part” and “employment action” refers to terms and conditions of employment.
The “bad thing” has to be “because of” the protected class
Most of us would not say an employer was doing a bad thing by firing an employee who stole from the company. In fact, we’d probably say that is a good thing. Nevertheless, firing an employee for stealing is still a “tangible, adverse employment action.” This is why an employee has to prove that whatever happened, it happened because of the employee’s protected class and not for some legitimate reason. Since I’ve never seen an employer blandly announce it fired someone because of their protected class, there is naturally a lot of arguing about the employer’s motive. In the following case, the employer forced the employee to use the grievance process to be treated equally with respect to terms and conditions of employment to the white employees, which was different treatment “because of” the employee’s race:
Fonseca v. Sysco Food Services, 374 F3rd 840 (9th Cir. 2004). Fonseca was the only Guatemalan employee at the Sysco plant. The following things happened to Fonseca after a new supervisor was transferred to his work area and started supervising him:
- Fonseca was called back early from funeral leave, when white employees were not;
- Fonseca was passed over for numerous overtime opportunities;
- Fonseca was given a suspension for tipping a pallet over, even though he had not loaded it and the Caucasian employees who actually caused the damage were not disciplined; and
- Fonseca’s supervisor pretended not to understand him, even though he spoke clearly (albeit with accented English).
Fonseca challenged many of these actions through the company’s grievance system and he was “made whole” — in other words, he was awarded the overtime compensation he had missed, the suspension was found to be improper and he was repaid the money he’d lost by being off work without pay and so forth. When Fonseca sued them claiming he was treated badly “because of” his protected class, Sysco argued that there was no “tangible adverse employment action.” Sysco explained that there was nothing remaining the court had to address because Fonseca was able to resolve the issues through the grievance system and he was made whole.
However, Fonseca successfully argued to the court the evidence showed white employees did not have to resort to the grievance system to be paid for missed overtime opportunities, nor were they disciplined for the types of things Fonseca had been disciplined for. In other words, the “something bad” happening to him was he was being forced to use the grievance system to require the employer to treat him equally to the white employees.
The Ninth Circuit held: “We hold that it is an adverse employment action when an employer knows its employees are entitled to certain opportunities, but forces only employees of a certain race to use the grievance procedure to obtain them. The fact of successfully grieving an adverse employment action does not preclude an employee from pursuing a claim of discrimination.”
So, there you are. An employer can’t give employees additional hurdles in the race “because of” protected class.
Proving discrimination can be quite difficult and direct evidence is rare
The basic structure of what is unlawful employment practices isn’t very complicated. An employee has to prove that something bad happened to him or her because of protected class.
The devil is in the details
It is extremely hard to prove discrimination, largely because most people have learned not to say discriminatory things or at the very least to write them down. I am reminded of the email that was unearthed by a smart plaintiff’s lawyer who hired a smart computer forensics firm to review a company’s computers just before they were considering taking a small settlement offer to end a bitter case in which the plaintiff was alleging she was told she’d better “put out” if she wanted to stay at the company. The two men she alleged told her this adamantly denied saying any such thing, pointing to her record of poor performance (which she claimed was fabricated). The forensics firm was able to “undelete” an email in which one man wrote to the other, “fire her if she doesn’t put out.”
You can’t get much plainer than that. This is what is called “direct evidence.” Direct evidence is something that shows the disputed thing clearly — it is written down, a video, a voice recording, something that directly shows what you are trying to prove. However, finding this kind of evidence in employment cases is probably a once in a lifetime (or rarer) experience. Most of the time for an employee, it’s putting one tiny bit of evidence next to another and willing them to coalesce. Sometimes it sticks together and sometimes it doesn’t.
What is circumstantial evidence?
Because it is so hard to prove motive, circumstantial evidence is the most common form of evidence in discrimination cases. Circumstantial evidence is facts or circumstances which suggest the thing you want people to believe is true, really is true. For example, when my daughter was young, she was in the kitchen and I was in the living room. I heard the cover to the sugar jar being quietly lifted, then quietly replaced. I asked her, “Maddy, are you in the sugar?” She said, “No, Mommy, I’m not.” Moments later, when she came into the living room, I noticed that she had sugar granules clinging to her lips. The sounds of the sugar jar lid being lifted and replaced, and the sugar granules clinging to her lips are “circumstantial evidence.” I didn’t see my daughter with her hand in the sugar jar — that would have been “direct evidence.” However, I am in possession of facts that would suggest my hunch is correct about what she was really up to in the kitchen.
The way this works in discrimination cases is the employee tries to show the employer has biased or negative views of the protected class, which led to some adverse treatment of the employee in terms or conditions of employment. They try to show the employer had its hands in the sugar jar based on evidence which suggests the truth rather than proves it directly, like in the following case:
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).*** At Price Waterhouse, a senior manager becomes a candidate for partnership when the partners in her local office submit her name as a candidate and the other partners agree. Ann Hopkins had worked at Price Waterhouse for five years when the partners in that office proposed her as a candidate for partnership. Of the 662 partners at the firm at that time, seven were women. Of the 88 persons proposed for partnership that year, only one — Hopkins — was a woman. Forty-seven of these candidates were admitted to the partnership, 21 were rejected, and 20 — including Hopkins — were “held” for reconsideration the following year.
Hopkins had both her supporters and her detractors. Her supporters showcased her successful two-year effort to secure a $25 million contract with the Department of State, labeling it “an outstanding performance” and one Hopkins carried out “virtually at the partner level.” The Judge found that “[n]one of the other partnership candidates at Price Waterhouse that year had a comparable record in terms of successfully securing major contracts for the partnership.”
The partners in Hopkins’ office praised her character as well as her accomplishments, describing her in their joint statement as “an outstanding professional” who had a “deft touch,” a “strong character, independence and integrity.” Clients also agreed with these assessments. She was described by them as “extremely competent, intelligent,” “strong and forthright, very productive, energetic and creative,” decisive, broadminded, and as having “intellectual clarity” as well as being “a stimulating conversationalist.” Hopkins was, however, abrasive with staff. Long before her bid for partnership, partners evaluating her work had counseled her to improve her relations with staff members.
In addition, there were clear signs some of the partners reacted negatively to Hopkins’ personality because she was a woman. One partner described her as “macho;” another suggested that she “overcompensated for being a woman;” and a third advised her to take “a course at charm school.” Several partners criticized her use of profanity. In response, one partner suggested those partners objected to her swearing only “because it’s a lady using foul language.” Another supporter explained that Hopkins “ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.” Hopkins was told in order to improve her chances for partnership to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
No one told Hopkins she wasn’t going to make partner because she was a woman. What they did tell her seemed to indicate the male partners in the firm had some sexual stereotypes they were judging her against — and, yes, it is discrimination to hold people accountable to discriminatory stereotypes. This is circumstantial evidence that could lead reasonable people to believe she was not selected for partner because she was a woman who wasn’t fulfilling sexual stereotypes. And, it’s also an example of a mixed motive case. The legitimate motive was her abrasiveness with staff and the illegal motive was they judged her harshly because she did not conform to the male partners’ sexual stereotypes. It would be interesting to know if any of the male candidates for partner that year were also abrasive with staff, but it was overlooked. If so, this could indicate she was being held to a different standard than the male candidates.
What is harassment?
Harassment is an extension of the type of discrimination we’ve been discussing. So far, we’ve been focusing on tangible adverse employment actions which are taken because of protected class. Harassment is a little different — quite often the employee doesn’t suffer the “tangible adverse employment action” because they aren’t disciplined, fired or demoted and they might even be promoted.
Harassment is negative and demeaning behaviors or words that are so pervasive and frequent as to become a term or condition of the employee’s employment. One example is sexual harassment, but harassment claims can be made based on any protected class. In other words, the harassment itself is the tangible adverse employment action. As with other types of discrimination, it has to be based on protected class to be illegal. Illegal harassment is “unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”
Case study:
Meritor Savings Bank v. Vinson, 477 US 57 (1986). Mechelle Vinson was hired at Meritor Savings Bank by Sidney Taylor, a Vice President and worked there for four years. It was undisputed she was promoted and her promotions were based on merit alone. After four years, she took sick leave and was eventually terminated for excessive use of the sick leave.
After her termination, Vinson sued, claiming that Taylor had constantly subjected her to sexual harassment during her tenure. She said he had initially invited her out to dinner, then suggested they go to a motel for sex. She refused, but then agreed, fearing that she would lose her job if she didn’t. Thereafter, according to Vinson, Taylor made numerous demands on her for sex, and they had intercourse 40 to 50 times both during and after business hours. Vinson alleged she was afraid of Taylor and this was why she never reported him to the bank or tried to use the bank’s complaint procedure. Taylor denied ever having any contact with her and maintained she made up the whole thing in retaliation for a business dispute.
After this case (and quite a few others), this is how we look at harassment claims:
- Discrimination includes harassment based on protected class that interferes with the enjoyment of economic advantage (e.g., employment).
- To be actionable harassment, it must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” An isolated episode typically does not rise to this level.
- Whether the “victim” consents to the “perpetrator’s” behavior is not relevant; the key question is whether the behavior was “welcome” to the “victim.” There are cases in which people have “welcome” relationships with each other at work.
- Harassment should be analyzed from the victim’s perspective; otherwise, people will be subjected to treatment that they find harassing but that others deem “harmless amusement.” This is called the “reasonable victim” standard.
- Employees have a duty to report what they believe to be harassment to their employers.
There are two important requirements. First, the behavior has to be pretty bad to cross the legal threshold to become illegal harassment. Illegal workplace harassment occurs when the behavior is so severe or pervasive as to become a term or condition of employment. Second, the behavior has to be “unwelcome” to the employee. The way we decide if this has occurred is to judge what a “reasonable person” of the protected class would feel about the behavior. There is both an objective and subjective aspect to this. Is the behavior objectively severe and pervasive? And, would an individual of that protected class subjectively find the behavior offensive and unwelcome?
For example, if sexual harassment is complained of, the standard against which the conduct is evaluated is whether a “reasonable woman” would find the conduct offensive and unwelcome. If racial harassment is complained of, the standard is whether a “reasonable person” with the same racial background would find the conduct offensive and unwelcome. A single incident or even several incidents of bad or even discriminatory conduct will usually not amount to illegal harassment unless very severe.
In sex cases, there quite often has been a sexual relationship. How do you decide if it was “unwelcome” and why doesn’t consent to the relationship matter?
Think of Mechelle Vinson. She reported to the Vice President, who came on to her. She feared losing her job, so she acquiesced to having sex with him. In a way, the power differential between them could have robbed her of free choice. Today’s standards make this argument weaker, but it still could be true. I often hear people say, “She could have left!” But remember the standard for judging is “reasonable woman.” People like Mechelle Vinson need their jobs to survive, perhaps take care of children and put a roof over their heads. She didn’t feel like she had a choice. And, in my experience, many men put in the same situation by their female bosses feel just as conflicted. So, the standard is “welcomeness.” Did the person who was subjected to the behavior “welcome” — truly welcome — the conduct, or did they just consent to it to retain their job? This is the tough question that has to be worked out.
Another point worth mentioning is Vinson worked for several years, then went out on sick leave and never came back. This is also fairly common in cases like this. People put up with what’s going on at work until it makes them sick and they can no longer put up with it.
I mentioned harassment cases can be brought based on any protected class. Here is an example of one in which an African American employee brought such a claim:
Swinton v. Potomac, 270 F3d 794 (9th Cir 2001). Swinton, the only African American employee at the plant where he worked, brought an action against his former employer alleging discrimination on basis of his race, stemming from a racially hostile environment. Swinton’s fiancée’s uncle, Jon Fosdick, worked at Potomac as supervisor in the bevel-cutting department. Fosdick would often stop by the shipping department and tell racially offensive jokes in the presence of Swinton and others. Swinton admittedly laughed at the jokes.
Among the “jokes”:
- What do you call a transparent man in a ditch? A nigger with the shit kicked out of him.
- Why don’t black people like aspirin? Because they’re white, and they work.
- Did you ever see a black man on “The Jetsons?” Isn’t it beautiful what the future looks like?
- Reference to “Pontiac” as an acronym for “Poor old nigger thinks it’s a Cadillac.”
Swinton worked there for some months, then quit and brought a racial harassment case. The company argued that Swinton laughed at the jokes, so they obviously weren’t offensive or unwelcome to him.
Can anyone think of a reason why Swinton laughed at Fosdick’s “jokes?” Of course you can. People have no trouble getting this. He was the only African American person in the entire plant. He laughed at the “jokes” as a way of trying to get along with other people. Michelle Vinson was targeted by her boss for sexual favors. She consented to sex. Neither situation was “welcome” to either employee, even though both consented to the behavior. That’s why consent is irrelevant.
As mentioned previously, usually one or two incidents isn’t enough to be considered so severe and pervasive that protected-class based harassment becomes a term or condition of employment — but it can happen. Consider the situation of an African American employee who comes to work to find a noose over his or her desk. It’s more than a death threat — there is enormous cultural context behind that action. What about a female employee who is sexually assaulted at work by a co-worker or a supervisor? When these sorts of things are shown to have happened, they are severe enough to create a hostile environment, especially if the employer doesn’t take care of the problem.
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* There are dozens and dozens of laws I’m not even mentioning which are also very important and give employees substantive rights. The purpose of this article is not to give an exhaustive overview of the law of employment practices, but to help raise awareness that certain behaviors are prohibited. And, there is a lot of behavior that is “legal” that isn’t very nice. In addition, there are others that can be sued (like labor organizations and employment agencies) and others that can sue (like job applicants and former employees). For the purposes of this article, I’m just going to use the words “employer” to mean those who can be sued and “employee” to mean those who can do the suing. Finally, and most importantly, none of this is legal advice, so please don’t rely on it for specific situations. Consider this as a broad brush explanation only.
**In the employment context, these laws forced change by threatening employers with penalties if the workplace did not live up to the minimum standards the laws articulated. Thus, it was fear of consequences that forced the changes. Many attorneys still advise their clients to do things “or else they might face liability” for their actions. However, today and for some years, many companies are asking a different question: “What is the right thing to do? What action is dictated by our company values?” So, these laws spurred change by wielding a sword, but the change has now generated its own consciousness and value system.
***Price Waterhouse was superseded by statute, Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1075, as recognized in Burrage v. United States, 134 S. Ct. 881, 889 n.4 (2014) but the basic point about sexual stereotyping remains pertinent.
AUG