EQUAL OPPORTUNITY

Equal opportunity refers to the equality of access to jobs, promotions, and other opportunities in corporations, associations and nonprofit organizations. Historically, equal opportunity in the United States was associated with African Americans and, later, women seeking to level out fundamental social inequities. More recently, persons with disabilities, veterans, and the aged have fallen under the protection of equal opportunity. These groups or classes of individuals are termed a "protected" class, defined as persons who have suffered the effects of employment discrimination or broader social discrimination that impedes their ability gain equal footing in the job market. The history of equal opportunity is traced through a continuum of federal legislation, executive orders, government agency decisions, and court cases. Corporations and organizations have developed separate offices or units to deal with the various aspects of equal opportunity. These units often spend a significant part of their budgets to promote equal access.

The definition of equal opportunity has expanded over the years to encompass equal opportunity in recruitment, hiring, training, layoffs, discharge, recall, promotions, responsibility, wages, sick leave, vacation, overtime, insurance, retirement, pensions, and various other benefits. In order to provide and protect equal opportunity, the federal government as well as state governments have established offices and agencies to provide guidelines, education, and programs for employers and employees. More recently, corporations and other organizations have followed the government's example to create a workplace environment where equal opportunity is an accepted and common practice.

Equal employment opportunity (EEO) policies in theory are administered and communicated to provide an effective and efficient work environment for all employees and job applicants. Such communication needs to start with supervisory personnel through employee handbooks and manuals, forms, handouts, training sessions and films, meetings and retreats, and a variety of other means of educating supervisory personnel. Some of the major issues to be covered include federal and state laws which relate to equal opportunity; the employer's specific EEO policies and how they relate to addressing and solving employment discrimination concerns; selection procedures used for hiring, promotion, training, and termination decisions; and employee procedures for handling complaints of discrimination in any form.

There are many practical examples of how EEO programs and initiatives work. For instance, Exxon Research and Engineering Company conducted an employee survey of affirmative action practices which indicated the firm's underutilization of women and minorities. As a result, an internal training program using women and minorities was organized in order to educate supervisors on cultural differences and their impact on the workplace as well as emphasizing EEO and affirmative action objectives. Using a different approach, The Stanley Works, a tool manufacturer, formed a group named Women in Management, which was aimed at fostering the advancement of women—their professional advancement, career development, and upward mobility. The group sponsors education and training programs and serves as a support system for women in management positions. Finally, Aetna Life & Casualty established a consulting pairs program as part of a broader effort to eliminate barriers to advancement for minorities and women. The program paired employees of different racial, ethnic, and gender groups in order to address the issue of workplace diversity. The "pairs" had three weeks of off-site intensive training relating to racial and sexual employment issues. The original pairs then worked with additional pairs who were experiencing similar problems on the job. The consulting pairs also served an awareness role to raise consciousness among other workers on issues of cultural differences and tolerance, as well as sharing new ideas with supervisors and managers.

These and other employer-initiated programs are generally financed by the company but are usually cost-effective in helping to eliminate employment discrimination and other illegal practices which, in the end, prove expensive for the employer.

HISTORICAL DEVELOPMENT OF EQUAL
OPPORTUNITY LEGISLATION

EARLY ADVANCES.

Although most would consider equal opportunity a recent concept, the true beginning of the idea can be traced to the Fourteenth Amendment (1868). This landmark constitutional doctrine did not address equal opportunity directly, but it did provide for equal protection under the law. The provisions of the Fourteenth Amendment would be circumvented for years, but lawmakers, attorneys, and civil rights advocates would constantly seek the shield of its protection. In 1933, Congress passed the Unemployment Relief Act, which forbade discrimination in employment on the basis of race, color, or creed. During World War II Congress again discussed equal opportunity and fairness in employment legislation. These early efforts to eliminate discrimination in employment gained little steam but nevertheless continued to build toward significant federal programs. National attention was diverted in turn by the Great Depression, the war, the perceived threat of global war and the Cold War, and McCarthyism. Finally, popular struggle scored a major victory in the struggle for civil rights after the Supreme Court's Brown v. Board of Education decision of 1954, which bolstered the civil rights movement and ultimately led to a series of government initiatives to end discrimination.

LANDMARK LEGISLATION.

The "new frontier" of the Kennedy administration marked the initial steps of the revolution in equal opportunities. In early 1961 President John F. Kennedy signed Executive Order 10925, establishing the President's Committee on Equal Opportunity. This set the concept of equal opportunity in motion not only for government employment but also for employees in government contracts, a step which would provide leverage for enforcing equal employment opportunities. The next stage was the passage of the Civil Rights Act of 1964, signed by President Lyndon Johnson, who sought to continue Kennedy's policies with his own set of programs called the Great Society.

The Civil Rights Act of 1964 is not only the linchpin of 20th-century civil rights legislation and Johnson's Great Society, but it is also the foundation of equal opportunity in employment. Title VII of 1964's Civil Rights Act is aimed at eliminating employment discrimination based on the usual litany of race, religion, sex, or national origin. The law became effective in July 1965, one full year after its passage, and originally applied only to employers of 100 or more individuals. It now applies to employers of 15 or more workers. Title VII has been amended on numerous occasions in the past 30 years, including the enactment of the Equal Employment Opportunity Act of 1972, the Pregnancy Discrimination Act of 1978, the Civil Rights Reformation Act of 1987, the Civil Rights Act of 1991, and the Family and Medical Leave Act of 1993. Title VII was also the basis of what has become the sweeping affirmative action programs brought about by Executive Order 11246 (1965). The Equal Employment Opportunity Commission (EEOC) was also provided for under Title VII. A five-member federal commission appointed by the president, the EEOC's function is to administer employment provisions and guidelines under Title VII. Since 1979, federal restrictions on discrimination against the aged and disabled in employment have been vested in the EEOC, these having previously been administered by the U.S. Civil Service Commission.

Like the agencies and programs established under Title VII, the Civil Rights Act of 1964 has been the constant target of employers, contractors, and detractors of the federal government's role in employment issues. The breadth of protection and remedies under Title VII has resulted in an endless number of court cases, and many states have followed the congressional example in attempts to provide employee protection. With the passage of the Civil Rights Act (and Title VII), the words "equal opportunity" and "affirmative action" became extremely important and often touchy concepts in employment and race relations in the United States.

Affirmative action has become the cornerstone of a great deal of equal opportunity in the employment arena. Established by Executive Order 11246, affirmation action programs are deployed as a remedy to discriminatory hiring practices and systematic historical and pervasive inequities. Since its inception, affirmative action has evolved into other personnel issues, such as recruitment, transfers, pay scales, and training opportunities. Generally, federal courts or the EEOC have enforced affirmative action remedies, and the number of groups covered by these programs has expanded. (However, since the mid-1990s there have been some successful attempts at dismantling certain affirmative action programs.)

The primary goal of affirmative action remedies has been correcting employers' underutilization of certain groups in employment—mainly African Americans and, to a lesser degree, women and other ethnic minorities. Such remedies may also take the form of back pay or retrospective awarding of seniority rights. For federal contractors with 50 or more employees, written affirmative action plans are required, and successive federal legislation has included provisions for the utilization of qualified handicapped individuals, veterans and disabled veterans, and other protected classes.

The Equal Pay Act of 1963 amended the Fair Labor Standards Act of 1938 in order to bar employers from paying members of one sex less than the opposite gender when job skills are the same or similar in nature. The act protects executive, administrative, professional, and sales employees. The EEOC is the agency charged with the enforcement of the Equal Pay Act.

Other federal acts have complemented the Civil Rights Act of 1964 by extending employment protection to various groups. The Age Discrimination in Employment Act of 1967 (ADEA) prohibited discriminatory practices in hiring, promotion, demotion, compensation, and transfers based on the age of the employee. The act also covered benefit plans and retirement incentives. Persons aged 40 to 65 were protected by ADEA; this protection was extended to age 70 under 1978 amendments, and simply to persons over 40 in 1986. Employers of 25 or more workers were covered in the original legislation; this changed to 20 or more employees in 1974. There are several categories of exemptions, most notably when an employer can demonstrate age is a legitimate qualification. The EEOC is charged with enforcement of the ADEA. Supplementing the ADEA, in 1975 Congress passed the Age Discrimination Act, prohibiting age discrimination by recipients of federal financial assistance.

SUPPORTING LEGISLATION AND REVISIONS.

The Education Amendments of 1972 included employment protection in Title IX, which prohibited sex discrimination in educational programs or activities at institutions that received federal aid—in reality, most colleges and universities. Although not having the same impact on employment as other federal legislation, Title IX is nevertheless significant. Numerous women's advocacy groups have cited Title IX in justifying support of women's collegiate sports programs —programs that often include job opportunities for women. Recent court decisions and out-of-court settlements support their development, but not without considerable discussion and often bitter disputes.

Another key ingredient in the evolution of equal opportunity legislation was the Rehabilitation Act of 1972, which prohibited discrimination against qualified individuals with disabilities by employers whose federal contracts exceed $10,000. Government contractors who employ 50 or more persons and have contracts totaling $50,000 or more were required to develop affirmative action programs to protect qualified disabled employees. Section 504 of the Rehabilitation Act extended coverage to employers receiving federal financial assistance.

The act defined persons with disabilities as those with a physical or mental impairment that caused substantial limits to the individual's "major life activities." Important wording added that employers were required to make "reasonable" accommodations for employees with disabilities—wording that, like much federal legislation focusing on equal opportunities in employment, has often created a furor among employers. Reasonable accommodations may include toilet facilities fitted for the disabled, computer adaptations for the blind, or telephones accommodating the hearing impaired, to mention only a few examples. The Office of Federal Contract Compliance Programs (OFCCP) in the U.S. Department of Labor is charged with enforcement of the provisions of the law. Much of the Americans with Disabilities Act (1990) reinforced and extended protection under the Rehabilitation Act.

Following the Vietnam War, Congress passed the Vietnam Era Veterans' Readjustment Assistance Act of 1974 to add Vietnam-era veterans to a growing list of protected classes. Under this law, federal contractors or subcontractors with contracts of $10,000 or more had to take affirmative action measures to hire, train, and promote disabled and other Vietnam veterans. The act provided that all job vacancies paying up to $25,000 be listed with local employment services and gave veterans priority referrals. Contractors with 50 or more employees and federal contracts in excess of $50,000 had to develop written affirmative action plans in order to improve the employment status of veterans. The OFCCP was charged with enforcing this law. Still another federal act aimed at protecting a specific class in employment is the Immigration Reform and Control Act (1986), by which employers of three or more persons were prohibited from discrimination on the basis of national origin or citizenship. The act provided such provisions for U.S. citizens, permanent resident aliens, refugees, and recently legalized aliens who had filed to become U.S. citizens.

An often overlooked policy is the 1978 Uniform Guidelines on Employee Selection Procedures, which apply to employers regulated by Title VII or Executive Order 11246 (affirmative action). The purpose of these guidelines was to eliminate discrimination based on employment and selection tests. Such tests had to meet validation standards and if found to have an adverse effect on any race, sex, or ethnic group, the tests were ruled illegal. As a general rule of thumb, if the selection rate of a protected group is less than 80 percent of that for the group with the highest selection rate, the test or practice is considered discriminatory. Known as the "4/5ths" or "80 percent" rule, these guidelines are followed by the EEOC and the federal departments of Labor, Justice, and the Treasury.

The sweeping Civil Rights Act of 1991 enhanced the rights of employees in discrimination in employment suits. The law reversed parts of seven U.S. Supreme Court decisions and expanded remedies available under Title VII. The act included provisions for compensatory and punitive damages for victims of intentional discrimination based on sex, religion, or disability—damages previously available only to racial and ethnic minorities. Jury trials were also provided and damage-award amounts could range from $50,000 to $300,000, depending on the total workforce of the employer. "Race norming" of employment test scores, or adjusting employment-related test scores on the basis of sex, race, religion, or national origin, was eliminated. The EEOC was required to establish the Technical Assistance Training Institute in order to provide training and education programs for the victims of long-standing job bias. Interest payments for delayed awards against federal and nonfederal employers were approved. The EEOC had to notify complainants when ADEA charges were dismissed.

In addition, the Glass Ceiling Commission was created to study artificial barriers to the advancement of women and minorities in top-level management positions. The commission was further charged with making recommendations to Congress to eliminate the so-called glass ceiling that holds such employees back. The Glass Ceiling Commission indeed found pervasive evidence of barriers and systematic discrimination against women trying to reach the upper levels of management, and proposed, for example, extensive recruitment and outreach programs to foster the diversification of the upper levels of management, as well as corporate management reviews to monitor companies' hiring and promotional practices.

The Rehabilitation Act of 1972 was augmented with the Americans with Disabilities Act (ADA), passed in 1990 and entering into effect on 26 July 1992. This broad act prohibited discrimination against qualified persons with disabilities. Employers are again required to make "reasonable" accommodations for employees who are otherwise qualified for a position unless these accommodations would create undue hardships for the employers. The act initially was imposed on companies in an industry affecting commerce with 25 or more workers. "Reasonable" accommodations were seen as measures that do not require much money to implement or cause significant and adverse changes in the way the company conducts its operations. Often, however, the courts have been fairly lenient with companies that make the claim that certain accommodations are unreasonable under this and other disability legislation. ADA prohibited discrimination in hiring, training, promotion, compensation, or discharge, and made illegal non-job-related employment or selection tests. Provisions of the ADA have to be conspicuously posted. Beyond the employment issue, ADA required businesses to make services and facilities accessible to disabled persons, ordered that buses and trains be made accessible, and forbade discrimination in state and local government services on the basis of disabilities. Remedies were provided following Title VII guidelines, and the EEOC was charged with ADA enforcement.

Although less sweeping in its scope, the Family and Medical Leave Act of 1993 (FMLA) has had a significant impact on equal protection under the law. The act guarantees up to 12 weeks of unpaid leave in case of family medical emergencies, childbirth, or adoptions. As important is the FMLA provision that employees taking leave under the law return to the same (or equivalent) job at the same pay and with the same benefits. The law covers employees who have been on the job at least 12 months for companies with 50 or more workers. The unpaid leave can be taken in hour increments if necessary. If state law provides more generous protection, those laws prevail.

In the middle and late 1990s, the debate over equal opportunity provisions was far from being settled, as groups that opposed what they considered favoritism under the EEO laws recorded some victories in legislation and court decisions. In 1996, President Clinton signed his Executive Order 13005, which focused affirmative action directives for the first time towards individuals living in areas of "general economic distress" rather than toward specific "group" members. Republicans, meanwhile, tried to capitalize on their majority in Congress to attack "preferences" in hiring practices. The proposed Equal Employment Act of 1995, the Civil Rights Restoration Act of 1997, and numerous similarly named bills were attempted in Congress, aimed at barring the discrimination against, or preference to, any individual on the basis of his or her race, gender, or national origin.

In California, a high-profile ballot measure called the California Civil Rights Initiative, or Proposition 209, passed in 1996 and promised implications for the national scene. The CCRI amended the California constitution to prohibit "discriminatory" or "preferential" hiring practices. The U.S. Supreme Court refused a hearing to the challengers of Proposition 209, thereby legitimizing the lower court's finding that the initiative was, in fact, constitutional.

SIGNIFICANT EQUAL OPPORTUNITY
COURT CASES

In addition to the federal agencies charged with enforcement of these laws and executive orders, the courts have heard thousands of cases litigated under protection of landmark acts such as the Civil Rights Act of 1964. The following are brief descriptions of several representative cases unique to one form of protection or another—racial discrimination, age discrimination, religious discrimination, or others.

Perhaps the most widely recognized employment opportunity case is the 1989 Wards Cove Packing Co., Inc. v. Antonio, in which the U.S. Supreme Court concluded statistical evidence alone pointing to a racial imbalance between one segment of a workforce population and another was not enough to make for a case of racial discrimination. In earlier cases litigants were generally able to prevail if they showed an employment practice simply had disparate impact on a protected group. However, under Wards Cove, a firm's selection practices can legally have disparate results if the absence of minorities in skilled positions reflects a lack of qualified nonwhite applicants, which is not the company's fault, the court said. Therefore, the plaintiff's burden to show discrimination had occurred was increased under this controversial decision; the claimants had to both show disparate impact and link it directly to a practice of the employer.

In a religious discrimination case, the Supreme Court ruled in 1986 that once an employer provided reasonable accommodation for an employee seeking to exercise his religion, there was no further obligation to effect employee-suggested remedies. The case centered on a school teacher who cited the need to observe six holy days during the school year. The employer provided for three days for religious observance and allowed use of up to three days of sick leave as religious holidays. The teacher filed suit under Title VII but was denied relief (Ansonia Board of Education v. Philbrook).

In 1987 the U.S. Eighth Circuit Court of Appeals held that a government agency's decision not to hire a woman with a long history of alcoholism did not violate her rights under the Rehabilitation Act of 1973. While alcoholism was defined as a handicap under the act, the appeals court ruled the employer had the right to rule the woman an employment risk, especially since she refused to enter a rehabilitation program, thus making it impossible for the government to provide reasonable accommodation (Crew v. U.S. Office of Personnel Management.)

While these cases represent instances when the courts have ruled against claims of discrimination, the vast majority of case law generally provides for relief of discrimination. In two cases from the early 1980s, the Supreme Court and a federal district court ruled that in situations of sex discrimination in compensation, protection is afforded under Title VII and the Equal Pay Act of 1963. The Equal Pay Act prohibited wage differentials for men and women doing the exact same job, while Title VII provided remedies in cases where intentional discrimination for comparable jobs is involved, a rather liberal interpretation of the law (Gunther v. County of Washington, 1981; and Connecticut State Employees Association v. State of Connecticut, 1983).

In Metz v. Transit Mix, Inc, in 1987, the Seventh Circuit Court of Appeals ruled that a financially stressed company could not lay off a 54-year-old manager and replace him with a 43-year old worker who made one-half the salary of the manager. Citing protection under the ADEA, the court ruled such a cost-cutting move was discriminatory. A state of California court ruled in favor of an asthmatic employee who filed under ADA. Ruling sensitivity a disability, the court mandated a smoke-free workplace when steps taken to accommodate the employee had failed (County of Fresno v. FECH, 1993).

In the 1995 case Adarand Constructors, Inc. v. Pena, the Supreme Court ruled that federal provisions for affirmative action programs must pass the test of "strict scrutiny" in constitutional review, whereby such programs must be justified in accordance with a compelling government interest for maintaining them. The programs themselves, moreover, must be "narrowly tailored" to that specific interest. The Adarand case was expected to put affirmative action programs on the defensive, and may make it difficult for some to survive, depending on the nature of the "compelling government interest."

TRENDS IN EQUAL EMPLOYMENT
OPPORTUNITY

The agency charged with enforcement of most equal opportunity in employment legislation is the EEOC, and charges filed with that agency have registered a leveling off and even a general downturn after the dramatic surge in complaints filed in the early 1990s. Since 1991, when the EEOC received 63,898 discrimination charges, the increase was nearly astronomical until its peak in 1994 (up 40.8 percent) For fiscal year 1998, the EEOC received 71,591 new discrimination charges, down 1.3 percent from 1997, continuing a decline since the 1994 peak of 91,189. The commission has, furthermore, managed to significantly reduce the time between the filing of a charge and its resolution, and has cut in half the inventory of private sector charges, from a high of 111,000 in 1995 to 52,000 at the end of 1998.

In fiscal 1998, 73 percent of EEOC charges were filed under Title VII of the Civil Rights Act of 1964, and 22 percent were ADA claims. ADEA accounted for 19 percent of the charges, thus these three statutes represent nearly all of the charges filed. The total here exceeds 100 percent because individuals often file charges involving multiple forms of discrimination. Using the same statistics, all of these forms of charges decreased somewhat. Of note, however, is the increase in religion-based charges (up 14.2 percent since 1996), pregnancy discrimination charges (a 12.7 increase over the same period), and a rising percentage of sexual harassment charges (12.9 percent in 1998) filed by men.

OFCCP data for 1997 also show more nuanced trends. For example, the OFCCP administered 3,750 compliance reviews in 1997, up 8 percent from the 1996 total. But the percentage of reviews that found violations remained relatively steady at 66 percent. In addition, only one debarment was ordered in 1997, compared with five in 1994. Between 1994 and 1997, the OFCCP recovered over $100 million in total financial settlements for discrimination victims; the 1997 figure jumped 39 percent from 1996 to reach almost $31 million. Moreover, the OFCCP ordered 27 corporate management reviews (also called glass ceiling reviews) of companies suspected of maintaining discriminatory barriers to advancement.

EQUAL EMPLOYMENT OPPORTUNITY
POLICIES AND PROGRAMS IN BUSINESS

Given the steep cost of litigation and the various costs associated with labor turnover, most employers find that awareness of equal employment issues is a must. As part of personnel practices in any work setting, employers and managers look to survey data to assist in shaping the means of communicating such awareness. A 1986 survey by the Bureau of National Affairs (BNA), a private research organization, provided keen insight into related personnel policies affecting equal employment opportunities and revealed the concern these employers have for communicating such policies. All 114 employers surveyed communicated equal opportunity statements to employees and job applicants. Most employers communicated these statements in more than one way—88 percent included such policies in the personnel manual, 75 percent posted equal opportunity policies on a bulletin board, and 7 percent of the employers included such statements in the employee handbook. Bulletin boards were used by 81 percent of nonmanufacturing businesses and 85 percent of manufacturing firms, and the figures for using policy manuals were similar (84 percent for nonmanufacturers, 85 percent for manufacturers).

Written affirmative action plans were maintained by 74 percent of the firms surveyed although a quarter of these businesses were not required to do so. These written plans were updated annually at 77 percent of the firms which maintained them. Fifty-eight percent of the respondents had goals and timetables for hiring individuals from protected classes and 68 percent of those indicated they would continue to maintain goals and schedules even if no longer required to do so. Nonmanufacturing firms tended to have a higher percentage supporting affirmative action programs.

Most of the businesses surveyed (95 percent) were required to file either federal or state equal opportunity reports. Slightly over one-half (58 percent) of the respondents had federal contracts or subcontracts and were regulated by OFCCP guidelines. Almost half (47 percent) of those had OFCCP compliance reviews, but only 13 percent were conducted due to employee complaints. All complaints were corrected by minor changes in employment policies and no companies were debarred from holding federal contracts.

The BNA survey also indicated the person usually responsible for EEO/affirmative action policies was the top personnel manager (66 percent) or an individual who reported to the personnel manager. Nearly all of the EEO administrators were charged with compliance to equal opportunity regulations. Their duties included reviewing complaints, conducting investigations, and reviewing hiring decisions. Seventy-two percent of responding firms had internal procedures to handle complaints and 75 percent of those found such dispute resolutions beneficial. Only 16 percent had internal committees to address equal opportunity issues—most in unionized firms. In order to comply with EEO policies, four-fifths of the firms had hiring and promotion decisions reviewed by either the personnel manager, the EEO officers, or some member of the top management team. Two-thirds offered EEO training and education for supervisors and managers. Such programs generally covered employment laws, human relations skills, and problems related to sexual harassment in the workplace. A final survey item focused on employees with disabilities, where 66 percent provided forms for self-identification for reporting handicaps or disabilities. Forty-two percent of respondents had provided modifications or special equipment and furniture to accommodate employees with disabilities, ranging in cost from $50 to $60,000.

CURRENT CONTROVERSIES AND
FUTURE TRENDS

Equal opportunity in employment is now fully entrenched in American life. Not only does the federal government have agencies directly charged with employee protection in employment, but there are also offices in virtually every state with similar duties. In addition, states have enacted legislation which in many instances complements federal law in providing remedies in cases of employment discrimination. Both federal and state case law is swamped with equal opportunity litigation, although the courts have proved that frivolous suits are easily dismissed and employees often find themselves losing out in cases where employment practices are involved.

Yet equal opportunity is not without its critics and controversial issues entering the 21st century. The sharply divided Supreme Court sometimes poses a threat to EEO laws. The existing EEO laws also have mixed implications for other demographic groups that may suffer discrimination, such as gay people, who generally are not protected under federal law. Meanwhile, AIDS victims have looked to legislation such as ADA for relief.

Opponents of equal opportunity programs—especially affirmative action—decry the practice as "reverse discrimination" and protest that decisions on hiring and other such issues should be made without consideration one's race, ethnicity, or gender or for past discrimination of any particular groups. They propose a purely "merit-based" system without preferential treatment. Proponents point to the blatant, and often accepted, discrimination prior to the implementation of Title VII, as well as the pervasive societal inequities that handicap certain groups from gaining equal footing in the business world.

Adarand and California's Proposition 209 portend a dubious future for equal opportunity legislation. It is easy to conclude equal opportunity protection is in an evolving stage, subject to major changes with significant implications for additional employer expenses. Many law firms and consulting agencies now specialize solely in employment issues.