Employment Discrimination

      Racial discrimination was a central issue of the Civil War and its legal aftermath. The Constitutional amendments and civil rights acts pushed through Congress to protect the black minority at that time had a surprisingly limited impact, however. Unsympathetic courts interpreted them narrowly and federal enforcement activities were temporary.

      The Civil Rights Movement of the 1950s and 1960s produced more far-reaching results The courts and the presidency began to reinterpret and enforce existing civil rights laws while Congress passed the most sweeping single piece of anti discrimination legislation, the Civil Rights Act of 1964. This Act prohibits discrimination based on color, sex, national origin, and religion. Title VII of that Act deals with employment discrimination.

      In applying Title VII, the courts developed two definitions of discrimination. Each relies on statistical proofs. In cases of disparate treatment, the employer discriminates intentionally, applying different standards to different groups of workers In cases of disparate impact, the employer has a single standard which has different consequences for different groups. Employers can defend against charges of discrimination by disproving the existence of a disparity, by providing an alternate explanation for it, or by claiming a bona fide occupational qualification business necessity, or a bona fide seniority system.

      A series of Executive Orders during the late 1960s and early 1970s radically change d the direction of federal antidiscrimination efforts. While Title VII simply requires employers to refrain from discriminating these later regulations demand affirmative action: that is, an active attempt to overcome the effects of past discrimination by promoting the employment of women and minorities. Employers must compare the composition of their work force with that of the local labor pool. When minorities and women are underrepresented, they must establish numerical goals and timetables to correct the deficiency and change personnel practices in an effort to achieve those goals.

      In practice, employers have often used preferential hiring and even rigid quotas to satisfy the demands of affirmative action regulations. This had led to counter-charges of reverse discrimination against white males. The courts have generally upheld the concept of affirmative action, while questioning some specific practices such as quotas.

      Other federal legislation has added older and handicapped workers to the list of protected groups. The Age Discrimination in Employment Act prohibits discrimination based on age and has increased the mandatory retirement for most workers to age 70. The Rehabilitation Act of 1973 demands that employers hire and make reasonable accommodations for handicapped workers who are otherwise qualified for a job.

      Sex discrimination raises a whole set of controversial issues, including sex stereotyping, pregnancy benefits, and sexual harassment. Currently, women's advocates are pressing for comparable worth. That is, they want the courts to demand that employers pay men and women equal wages for jobs that are "comparable" in value even if their duties and tasks are in no way similar. The law already specifies that men and women receive equal pay for "equal" work.