Introduction
In 2012, FedEx Corporation paid a whopping $3 million to settle the charges of discrimination against 21, 635 job applicants 61% of whom were female, 52% African American, 14% Hispanic, 2% Asian and 1% Native American (Greenhouse, 2012). Title VII of the Civil Rights Act of 1964 is a federal law prohibiting employment discrimination based on race, sex, color, religion and national origin. EEOC is a federal organization which has the responsibility of enforcing this law. The EEOC statistics show that the highest number of discrimination charges ever registered was in the fiscal year that ended on 30th September 2010. Though Title VII prohibits employers from showing retaliation against an employee who has opposed to the unlawful discriminatory practice, the most frequent charges of discrimination registered are of retaliation discrimination, as per the EEOC. This paper will highlight the historical context of the passing of Civil Rights Act and the addition of sex in Title VII, subsequent amendments made to Title VII, how workplace has changed and the role of EEOC and the pros and cons of Title VII.
The end of Civil war and the abolition of slavery could not remove the white mentality of treating Black Americans with indignity. Blacks were considered inferior and this concept of inferiority was apparent in the ruling passed by the Supreme Court in the Plessy vs. Ferguson case in favor of segregation. The Supreme Court stated that segregation between whites and blacks was constitutional as long as the segregated facilities for each were equal in quality (Richard Wormser). The "separate but equal" doctrine passed by the Supreme Court soon extended in application in broader aspects of public life such as schools, theaters, restaurants and restrooms. However, the doctrine was fictitious as facilities for blacks were inferior to that of whites. But this doctrine passed in favor of segregation encouraged the whites to treat the blacks abominably by relegating them to the status of second class citizens. The legitimation of segregation and anti-black racism gave birth to Jim Crow laws which imposed a series of decrees on the black population such as blacks were not allowed to marry or shake hands or eat together with whites. Whites would always get the first preference while having food in a restaurant or passing by an intersection. Further, under Jim Crow Law blacks were not allowed to call whites by their first names and they would always have to append Mr. or Mrs. while addressing a white whereas whites would call the blacks only by their first names or using denigrating words like nigger or colored. Blacks were also barred in many restaurants and public parks with signboards stating that Negroes and dogs are not allowed. Though the racial discrimination against black Americans was more prominent and harsher in the South, but the North too was not free from its wide-ranging effect. One notable incident was when the US Naval Academy located in Maryland declined to play a lacrosse game in 1941 with Harvard University because of a team member of Harvard being black. When the US took part in WWII, more than 1/4th of a million black soldiers entered the military but they were all stationed to separate military units. Despite putting their lives at risk to combat in the WWII, African Americans were victims of uncontrollable racial discrimination in military units and defense industries. Black Americans resorted to protest marches, sit-ins, bus boycotts and freedom rides in demand for equal rights and privileges of all the American citizens.
The extensive media coverage of the civil rights movement spread the awareness of the desperation of Black Americans in their fight for civil rights. The leadership of Dr. Martin Luther King, Jr., Ralph Abernathy, Andrew Young, Jessie Jackson and Maynard Jackson gave momentum to the movement and the widespread civil disobedience by Black organizations like SCLC, NAACP and CORE and by African American leaders put a huge pressure on the federal government to bring an effective civil right law. President John F. Kennedy first addressed the need of passing the Civil Right Bill in his speech on June 11, 1963. In his speech, Kennedy mentioned that a legislation should be enacted in order to award all the African Americans with the right "to be served in facilities which are open to the public—hotels, restaurants, theaters, retail stores, and similar establishments" and "greater protection for the right to vote" (John F. Kennedy 1963). After his assassination in November the same year, Lyndon Baines Johnson, the Vice President accepted the role of the country's leader. Taking advantage of the public sympathy following Kennedy's assassination, Johnson used the moment to pass the legislation of Kennedy's Civil Rights Bill as a tribute to the dead president. Before long the Equal Employment Opportunity Commission (EEOC) was formed for enforcement of the Civil Right Bill. The passing of the Civil Right Bill gave a new dimension to the Civil Rights movement by barring discrimination against anyone on the basis of sex, race and ethnicity. Hotels, restaurants and employers could no longer discriminate against the African Americans. Schools that refused to desegregate were subjected to lawsuit by the Federal government.
Addition of ‘Sex’ in Title VII of Civil Rights Act
Discrimination not only existed against blacks, women too were considered a weaker sex. They were viewed as objects of lust and reproduction and intellectually inferior to men. In the US, the condition of a woman was like that of a showpiece whose role was to enhance her husband's social status by giving birth to his posterity and raising them. Their scopes of education was limited, they didn't have the right to own property or vote. Even after women's suffrage was signed into law in 1920, women were not granted equal status as men. There were many restrictive labor laws in place preventing women from working at night or for over 8 hours a day. They were also restricted from jobs involving lifting of weights as little as 15 pounds. There were discriminations against the jobs they could or could not do. Women were mostly considered suitable for factory labor, teaching, writing and domestic work. With the desire to bring a revolutionary change in social attitude towards women and economic and education equity between men and women, women activists took participation in the Civil Rights Movement demanding equal status as men in every aspect.
When President Kennedy sent the draft of Omnibus Civil Rights Bill to the Congress and the bill was being debated on the floor of House of Representatives, Howard W. Smith who was a chairman of the Rules Committee and a strong opponent to any civil right legislation proposed to add the word 'sex' to Title VII in prohibition of employment discrimination against another minority group, the women (Freeman, 1991). After a long debate of several hours, the amendment was passed into a law. Hawaii and Wisconsin were the only two states in the US prior to the passage of Civil Rights Act to have laws prohibiting discrimination in employment based on sex. After the passage of the law, within 10 years almost all the states of the US added sex in the list of the prohibited discriminations in employment. However, the agency EEOC created to look after the enforcement of the civil right law considered the sex amendment as a fluke and slighted its existence. Due to the indifference of EEOC, an organization called the National Organization for Women (NOW) was formed to put pressure on EEOC to implement the law. NOW also assisted women, who were intending to file a lawsuit against sex discrimination, to find lawyers. Before long the laws that prohibited women from working over 8 hours a day or at night and from involving in occupations hazardous in nature were declared void by the federal government (Freeman, 1991).
The title vii of Civil Rights Act brought sweeping changes in the process of employment. Before the enactment of title vii, an employer had the right to refuse a candidate on the basis of his or her religion, sex, race, color, ethnicity or national origin. An employer could easily deny promotion, refuse work assignment and involve in discriminatory practices against a person if he or she belonged to a minority group such as blacks, Muslim, Christian, Hispanic, German, and Asian. All the acts of discrimination were lawful but after the passing of title vii of the Civil Rights Act, employment discrimination based on race, color, national origin and sex became unlawful. This law protects both the existing employees of a company and the potential employees or the job candidates from discriminatory biases. All the enterprises with 15 and more employees are mandated to abide by the rules of title vii. Under this law an employer cannot hire and eliminate a candidate because of his color, sex, religion, race and national origin. The employer cannot further fire, promote or assign works on the basis of discrimination. The employer cannot harass and determine someone's wage, benefits, disability leave and retirement plans on the basis of anything classified as discrimination.
Subsequent Amendments
The final legislation of Civil Right Act that was passed in 1964 made it illegal for an employer "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges or employment, because of such individual's race, color, religion, sex, or national origin." But there are several amendments made to the title VII subsequently. Age Discrimination in Employment Act (ADEA) was appended to Title VII in 1967 in order to prohibit employment discrimination against anyone aged over 40 years and older. In 1978, the Pregnancy Discrimination Act (PDA) was added to Title VII in order to prevent the employment discrimination against pregnant women who were denied jobs and promotion due to pregnancy and were facing a slew of discriminatory behaviors from colleagues and the employer during the pregnancy. The PDA also protects the right of women to have abortion by stating "Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion" (Schroeder and Paliotta, 2008). The Supreme Court decision in the Meritor Savings Bank v. Vinson in 1986 proved to be a landmark judgment in adding sexual harassment as sex discrimination to Title VII. Prior to that, women were subjected to indiscriminate sexual harassment by their male colleagues and employer. When women started going to work alongside men, it was not accepted in a positive manner by the then conservative society and male colleagues made a hostile work environment for women by harassing them sexually. In the wake of such sexual harassment, many complaints were lodged and lawsuits were filed and therefore, the amendment to Title VII was introduced. The Americans with Disabilities Act (ADA) was further introduced in 1990 to protect Americans with disability from employment discrimination. ADA states that an employer cannot refuse to hire, promote or discharge a qualified individual because of a disability. The EEOC ruled recently in 2012 that employment discrimination on the basis of sexual orientation, gender identity or transgender status is forbidden under Title VII.
The Role and Significance of EEOC
Equal Employment Opportunity Commission or EEOC constituted in 1965 is a federal law enforcement agency that at the time of its formation was entrusted with the responsibility of investigating complaints registered for discrimination based on race, color, national origin, religion, sex. But over the years, apart from enforcing the title VII the Civil Right Act its role has further been expanded into enforcing an array of federal statutes such as Age Discrimination in Employment Act of 1967 which prohibits discrimination against anyone aged over 40 years and older, the Equal Pay Act of 1963 that prohibits gender discrimination in remuneration for the same kind of work, Title I of the Americans with Disabilities Act of 1990 which protects disabled people from discrimination in both public and private sector, Section 501 of the Rehabilitation Act of 1973 that protects disabled federal employees from discrimination. It also enforces PDA or Pregnancy Discrimination Act to protect pregnant women from discrimination (National Archives). From 2011 onwards EEOC also protects lesbian, gay and bisexual individuals from sex discrimination and from 2012 it has expanded its protection to transgender people.
When the EEOC receives complaints of discrimination, it first investigates the issue of complaints and if it finds enough reasons to suspect the employer of being involved in discriminatory practices then it tries to gather enough evidence to make the incrimination and once it is determined that the employer is guilty of discrimination, it usually takes initiative to go for out of court settlement. However, if the out of court settlement is not possible, then the EEOC files lawsuit against the employers accused of discriminatory practices. It is not that all discrimination complaints end up in court or litigation, the EEOC makes a thorough investigation to ascertain whether or not an employer is responsible for violating the civil rights of an employee or a job candidate. The EEOC understands that a lot of discriminatory practices take place because of prejudices and preconceived notions among people and therefore, it believes that preventive actions are essential to reduce the number of discrimination cases. The EEOC has developed a slew of educational programs to spread awareness among public on discrimination. It has also constituted several assistance and outreach programs in collaboration with federal agencies ensuring the application of equal employment opportunities. The EEOC also assists and gives advice to judicial authorities that handle the cases of employment discrimination. Since the time the EEOC has come into action, all the discriminatory practices in workplace are brought into notice and when proved the alleged victim receives justice. Companies are charged with a hefty amount for settlement and forced to bring in changes to their company policies. For example, the Mitsubishi Manufacturing plant in Illinois which didn't have any policy regarding sexual harassment prevention in place and condoned a hostile work environment for women was subjected to a thorough investigation by the EEOC and in its report the EEOC validated the sexual harassment claims of the women by providing substantial evidence against the company. Though Mitsubishi initially denied all the charges raised against it later on agreed to pay $34 million to settle the issue and brought in significant changes to its sexual harassment prevention policy (Fabio, 2006).
Pros and Cons of Title VII
Though Title VII has removed the more blatant exhibition of prejudice in the workplace, the discrimination against minority that prevails still has become more of a subtle form of bias. But when bias exists in sophisticated form in a subtle manner, it becomes more unidentifiable. Therefore, many a time women and colored people become more hyper vigilant trying to see bias where it is not there. Furthermore, many a time employees don't report a discriminatory act out of fear for retaliation. Title VII still in practice doesn't provide enough protection for people complaining of discrimination. Further there remains a chance that the court's version of discrimination doesn't match the understanding of discrimination of the complainant as happened in the case of Jordan v. Alternative Resource Company in which an African American employee was sacked because of complaining of racist comment by a colleague and the court ruled that it was unreasonable for the employee to believe that one overt racist comment could potentially ruin the work environment. Title VII is also oblivious to the difficulty faced by employees in perceiving discrimination. Currently the filing period is unusually short only of 180 days with an extension allowed up to 300 if the charge is registered by a state and local antidiscrimination law (Brake, 2009). Such short time is not always enough for an employee to identify discrimination and report against it.
Conclusion
In conclusion, the Civil Rights Act passed in 1964 had ‘sex’ added to the Title VII as a fluke. Over the years, Title VII has supplemented with the addition of several amendments. The workplace has changed ever since with more number of discriminatory practices being registered everywhere and the companies are being forced to change their policies. The situation has improved but it has space for improvement a lot still. There are still many discriminations existing on the basis of overweight, looks and speech problem that are yet to be covered under Title VII. Many employers hesitate to hire or give promotion to employees who stutter. Obese people often complain of being rejected for their weight and studies show that attractive people earn more than the plain average. Though recently the EEOC has included LGBT under its protection, hopes are high that soon more number of discriminations will be added to Title VII.
References
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