Equal employment opportunity during the last decade

In this article we are discussing U,S employment law but similar laws are now in force in respective countries. In India women are given due importance and when they are employed in organized sector they are granted facilities like maternity leave, crèche and such other facilities. It is not uncommon to find a few women chairpersons at the helm of affairs of some reputed Indian corporate companies.

Several subsequent Supreme Court rulings in the 1980s had the effect of limiting the protection of women and minority groups under equal employment laws; this prompted Congress to pass a new Civil Rights Act. The effect of CRA 1991 was to roll back the clock to where it stood before the 1980s decisions, and in some respects to place even more responsibility on employers.

First, CRA 1991 addressed the issue of burden of proof. Today, after CRA 1991, the process of filing and responding to a discrimination charge goes something like this. The plaintiff (say, a rejected applicant) demonstrates that an employment practice (such as a test) has a disparate (or “adverse”) impact on particular group. (Disparate impact “means that an employer engages in an employment practice or policy that has a greater adverse impact [effect] on the members of a protected group under Title VII than on other employees, regardless of intent. Requiring a college degree for a job would have an adverse impact on some minority groups, for instance. Disparate impact claims do not require proof of discriminatory intent. Instead, the plaintiff must show two things first he or she must show that a significant disparity exists between the proportion of (say) women in the available labor pool and the proportion hired. Second, he or she must show that an apparently neutral employment practice, such as word-of-mouth advertising or a requirement that the jobholder “be able to lift 100 pounds” is causing the disparity.

Then, once the plaintiff shows such disparate impact, the employer has the burden of proving that the challenged practice is job related for the position in question. For example, the employer has to show that lifting 100 pounds is actually required for the position in question, and that the business could not run efficiently without the requirement that it is a business necessity.

CRA 1991 also makes it easier to sue for money damages in certain cases. It provides that an employee who is claiming intentional discrimination (which is called disparate treatment) can ask for (1) compensatory damages and (2) punitive damages, if it can be shown the employer engaged in discrimination with malice or reckless indifference to the federally protected rights of an aggrieved individual. This is a marked change from what prevailed until 1991. Victims of intentional discrimination who had not suffered financial loss and who sued under Title VII could not then sue for compensatory or punitive damages. All they could expect was to have their jobs reinstated (or be awarded a particular job). They were also eligible for back pay, attorneys’ fees, and court costs.

Enforcing the 1991 Civil Rights Act abroad:

The 1991 Civil Rights Act marked a substantial change in the geographic applicability of equal rights legislation. Congressional legislation generally only applies within US territorial borders unless specifically stated otherwise. However, CRA 1991 specifically expanded coverage by amending the definition of employee in Title VII to mean a US citizen employed in a foreign country by a US-owned or controlled company. At least theoretically, US citizens now working overseas for US companies enjoy the same equal employment opportunity protection as those working within US borders.

Two factors limit the wholesale application of CRA 1991 to U.S employees abroad. First, the civil protections are not universal or automatic because there are numerous exclusions. For example, an employer need not comply with Title VII if compliance would cause the employer to violate the law of the host country (For instance, some foreign countries have statutes prohibiting the employment of women in management positions).

A more vexing problem is the practical difficulty of enforcing CRA 1991 abroad. For example, the EEOC investigator’s first duty in an extraterritorial case is to analyze the finances and organizational structure of the respondent, but in practice few, if any, investigators are trained for this duty and no precise standards exist for such investigations. Similarly, one expert has argued that U.S. courts are “little help in overseas investigations, because few foreign nations cooperate with the intrusive enforcement of US civil law. It is possible, therefore that as one expert says, Congress well-meaning effort to leave no American uncovered by U.S. antidiscrimination law will not have its intended effect.