613.1     Introduction

In accordance with Congressional intent, the above language is to be read in the broadest possible terms. The intent of Congress was not to list specific discriminatory practices, nor to definitively set out the scope of the activities covered. Rogers v. EEOC, 454 F.2d 234, 4 EPD §7597 (5th Cir. 1971).

The phrase "terms, conditions, and privileges" has come to include a wide range of activities or practices which occur in the work place. Because of the vide diversity of potential employment activities or practices which might be included in the phrase, this manual section merely highlights certain practices.  It does not attempt to exhaustively cover the range of practices which could be included in the phrase "terms, conditions, and privileges of employment." Additionally, the EOS should note that a distinction is rarely made between terms of employment, conditions of employment, or privileges of employment. Accordingly, in this manual section, no distinction will be made as to whether the activity or practice alleged in the charge to be discriminatory involves a term of employment, a condition of employment, or a privilege of employment.

The following employment practices or activities which are embodied within the phrase "terms, conditions, and privileges of employment" are treated in this manual section: discriminatory work environment; duration of work; work rules; job assignments and duties; and job advancement.  Each practice or activity is considered in its broad sense.

Many employment practices or activities not included within this manual section can be found in other manual sections. The practices or activities covered in other sections include the hiring, selecting, compensating, promoting, demoting, disciplining, classifying, segregating, excluding, dictating dressing or grooming standards, laying off, and discharging of employees.  These practices or activities come under manual section headings such as: Adverse Impact in the Selection Process; Discharge and Discipline; and Segregating, Limiting, and Classifying Employees.

When the terms, conditions, and privileges allegation is intertwined with and difficult to differenciaee from other issues specifically treated in this manual, the EOS should use the manual section which is most closely related to the other issues for guidance in processing the charge.

Example - R has production standards for each job in its facility. These standards constitute terms, conditions, and privileges of employment. CP, a Black female, filed a charge against R alleging that she was discharged because of race and sex. R alleges that CP was discharged for failing to meet production standards.

In the above example, the EOS should use the manual section specifically dealing with discharge to process the charge. Compare, however, where CP has not been disciplined or discharged, but believes that the production standard is being discriminatorily applied. The latter is a terms, conditions, and privileges charge and should be processed in accordance with this manual section.

Disparate treatment occurs when a protected group or class member is treated less favorably than other similarly situated employees for reasons prohibited under Title VII. In such a case, the charging might contend that (s)he and other members of his/her protected group are being treated differently by the employer's unequal application of a neutral unwritten or written rule, regulation, policy, or practice.

Example of Disparate Treatment - R has an established policy that allows employees in professional job categories who have been with the company at least five years to take educational leave. CP alleges race discrimination because White employees are uniformly granted educational leave, whereas similarly situated Black employees are seldom granted educational leave. Investigation reveals that R's workforce is and has been balanced with respect to the latest SMSA data in the professional job categories but that Black employees are in fact rarely allowed to take educational leave which is freely granted to White employees.

Charges which allege a neutral unwritten or written rule, regulation, policy, or practice which disproportionately affects a protected Title VI I group should be analyzed in terms of adverse impact.

Example of Adverse Impact - R allows employees in professional job categories who have been with the company at least five years to take leave for educational purposes so long as such education is related to and in furtherance of the employer's business. The leave for educational purposes constitutes a term, condition, or privilege of employment. CP, a Black professional employee who has been with the company for 20 years, but with only one year in a professional job category, applied for but was denied job related educational leave. R informed CP that the denial was because CP vas only in a professional job category for one year. CP filed a charge alleging that the denial constituted race discrimination because until one year prior to the filing of his charge R only hired Whites into the professional job category. As a consequence of chat policy, 87% of R' s White employees are in professional job categories as compared to only 2% of Its Black employees.

In a fact situation such as the one presented above, the EOS might also determine that the charge needs to be analyzed in terms of perpetuation of past discrimination. In such a case the EOS might determine that discrimination has occurred in the past and that the present unwritten or written rule, regulation, policy, or practice serves to continue the past discriminatory practice into the present.

Analyzing the charge based on a perpetuation theory might in some instances render an untimely charge timely. (See §604, Theories of Discrimination; and §605, Jurisdiction.) However, since this approach is not universally recognized by the courts, the EOS should, where possible, analyze the charge as a present act of discrimination or as a continuing violation.

Related charges based on the employer's educational leave policy could also be based on retaliation; e.g., leave is allegedly denied because of a previously filed title VII charge.

In light of the above discussion relating to terms, conditions, and privileges and related theories of discrimination, the EOS should be aware of the need to carefully analyze charges covering matters alleged in this manual section. A slight factual variation could mean that a charge should be analyzed under one theory of discrimination as opposed to another. The EOS should thoroughly familiarize herself/ himself with §604, Theories of Discrimination, in order to determine under which theory to analyze and subsequently evaluate a charge covered by this manual section.

613.2       Discriminatory Work Environment

Example (1) - Discriminatory Use of Courtesy Titles - R, at group meetings and in other employment situations, introduces White employees to Black employees as Mr. and Mrs. with the clear implication that Blacks are to continue to address chem as .Mr. or Mrs. On the other hand, R and all other White employees at R's facility address Black employees by their first names. Commission Decision No. 71-32, CCH EEOC Decisions (1973) §6160.

Example (2) - Discriminatory Use of Exaggerated Titles - R hired Black female employees into "stockgirl" positions, whereas White female employees were hired into "salesgirl" positions. Thereafter, R required the "stockgirls" to address the "salesgirls" and other White managerial employees as Sir or Ma'am, while Whites addressed Blacks by first names. CP (Black female) filed a charge alleging chat this practice constituted racial discrimination.

Example (3) - Discriminatory Use of Labels - R, as a matter of practice, referred to its adult female employees as "counter girls" or "girls."  CP, an adult Black female, filed a charge alleging that this practice constituted discrimination. Commission Decision No. 72-0679, CCH EEOC Decisions (1973) §6324. (Despite the existence of a Commission decision, this matter remains non-CDP, and the Coordination and Guidance Services should be contacted for assistance.)

In the last example there may be both race sex discrimination. Race discrimination may exist because of the foreseeable disparate effect that results from repellent historical images that are evoked by calling an adult Black female, "girl", and sex discrimination may exist because of the disparate treatment inherent in implications of female inferiority evoked by referring to males as "men" and females as "girls".  The matter in example (3) is non-CDP, and the Coordination and Guidance Services should be called if it arises.

Example (4) - Discriminatory Insults and Epithets or Slurs - At R's facility, racially and ethnically derogatory remarks were written on restroom walls, personnel told racial and ethnic jokes, and a racially derogatory paper vas freely circulated. R was aware of these practices and activities but took no action. CPS, Blacks and Hispanics, alleged that R^'s inactivity and subsequent failure to eliminate the discriminatory work environment discriminated against them because of their race and national origin. Commission Decision No. 72-1561, EEOC Decisions (1973) §6354.

Example (5) - Discriminatory Intimidation of Employees R' s supervisor preached religion and otherwise proselytized his religious views to his subordinates. CPS (of no or a different religious persuasion) allege that the preaching interfered with their employment by causing them to feel intimidated. They allege that they were made to feel that their job security depended on whether they were converted to the supervisor's religion. R does not deny the existence of the activity or practice but rather defends on the ground that it was not responsible for the activity of its supervisor because it was not aware of it.  This defense is of no avail as R is responsible for the actions of its supervisory employees. Commission Decision No. 72-1114, CCH EEOC Decisions (1973) §6347.

613.3     Duration of Work

Generally, Title VII obligates the employer to treat a member, or members, of a protected group the same as other similarly situated employees. Sometimes an employer will rely on a benevolent state law designed to protect women or on a provision of a union contract as a basis for treating members of different classes differently. To the extent that either the law or the contract conflicts with Title VII, it will not constitute an adequate defense. (See example following.) Title VII supersedes conflicting state laws or union contracts. The EOS should, however, be aware that Title VII does not prohibit differences in treatment regarding duration of work such as: shift assignments, overtime, or hours of employment on a good faith, bona fide seniority system. (See §616, Seniority.)

Example (l) - Discriminatory Employment Contract Provisions - R provides its female coaches with 9-month contracts, whereas similarly situated male coaches are given 12-month contracts. CP, female, filed a charge alleging that this practice constitutes discrimination on the basis of sex. R defends on the ground that top male coaches for the major sports are in much demand and that they also conduct training camps and other related activities in the "off season."  (Note that this issue is non-CDP, and Coordination and Guidance Services should be contact if it arises.)

Example (2) - Practice Discriminatory Despite State Law - R limited the number of hours its female employees could work to 48 hours per week. As a consequence, female employees were denied overtime. CP, a female, filed a charge alleging sex discrimination since similar limitations were not placed on males.  R attempts to justify the practice based on a state law which mandates different treatment of women in the workplace regarding hours of employment. This practice is discriminatory because Title VII supersedes conflicting state law and mandates that women be evaluated with respect to their individual capacities and abilities.  Commission Decision No. 72-1919, cad EEOC Decisions (1973) 16370.

Example (3) - State law requires that female employees receive a 30-minute lunch break. R, in order to comply with this requirement, extended its normal 20-minute lunch period by 10 minutes for females.  Males were permitted a 10-minute rest break to compensate them. Both male and female employees at R 's facility filed charges. R is discriminating against both groups of employees by treating each differently based on their respective 3 sexes.  Commission Decision No. 71-2046, CCH EEOC Decisions (1973) §6242.

Example (4) - Reliance on Discriminatory Union Contract Provision - R awarded a choice job to a male employee. CP, a more senior female employee filed a sex discrimination charge alleging that she was passed over because of her sex (female). R acknowledges that CP's sex was a factor in its decision to award the job to a male but contends that the union contract justified the difference in treatment. The union contract requires R to give its female employees two fifteen-minute lunch breaks. R contends that this sufficiently conflicted with the job duties so as to warrant awarding the position to the male.  Here both the employer the union are violating Title VII by failing to consider individual female capacities and abilities. See Richards v. Griffith Rubber Mills, 300 F. Supp. 338, 2 EPD §10,001 (D.C. Or. 1969).

613.4     Work Rules

Example (1) - Adverse Impact Resulting from Neutral Work Rule - R, a large manufacturer with a predominately male workforce, employs the greatest percentage of the working population in a rural area. R has a rule against employing spouses in the same department. When positions became available in the production department, CP, a married female, applied but was denied a job because her spouse worked in that department. Thereafter, CP filed a charge alleging sex discrimination because the "no spouse" rule adversely impacts upon female applicants.  Investigation developed evidence that, while R ^t s workforce is only 10% female, the SMSA is 36% female, and that the "no spouse" rule resulted in the reaction of 65 female applicants as compared to only one male applicant. Absent proof by R of business necessity, the rule is discriminatory.  See Commission Decision No. 75-239, CCH Employment Practices Guide §6492.

Example (2) - Discriminatory Application of a Neutral Work Rule - R has an unwritten rule that its employees are not permitted to disclose the amount of their respective Eve Christmas bonuses. CP (a Black female) disclosed the amount of her bonus to a White female co-worker. The White employee who had received a smaller bonus complained to R. R, as a consequence, summarily discharged CP who in turn filed a charge alleging race discrimination. In this ease a careful investigation disclosed the following: 1). that this was the first time a Black employee received a larger bonus than a white employee; 2) that it was the first and only time an employee was discharged for disclosing the amount of his/her bonus; and 3) that the rule against disclosure had never before been invoked. Therefore, e he policy is being discriminatorily applied. See Commission Decision No. 72-32, EEOC Decisions (1973) §6160.

Example (3) - Facially Discriminatory Work Rule - R has a policy under which male employees are permitted to smoke at their desks in areas of minimal public contact. Female employees are required to go to the employees' lounge to smoke.  CP, a female, files a charge alleging that this policy overtly discriminates against women. R acknowledges that women are treated differently. R attempts to defend the policy on the ground that it is necessary to maintain an office atmosphere acceptable to management with proper decorum and observance of the minimal requirements of etiquette. This is not an adequate defense. Commission Decision No. 71-109, CCH EEOC Decisions (1973) §6165.

613.5 Job Assignments and Duties

Example - Discriminatory Assignments Based on Stereotyped Notions- R hired CP, female, into a position that was classified as professional, but which involved some clerical duties.  In fact, CP spent 80% of her time performing professional tasks and 20% of her time performing clerical tasks. With the passage of time, R demanded that CP perform more and more clerical tasks. CP acceded co R's demands until she eventually performed 80% clerical tasks and only 20% professional casks.  R determined at that point to reclassify CP into a clerical, as opposed to a professional, slot.  CP filed a charge alleging sex discrimination because similarly employed males performed 100% professional duties. R responded to CP's allegations with a statement to the effect that clerical work is woman's work which the male employees could not be expected to perform. See generally Commission Decision No. 68-3-243E, EEOC Decisions (1973) §6015.

In terms of analyzing the problem based on adverse impact, a price facie case occurs where a neutral policy or practice. disproportionately impacts upon a protected group or class. Requiring secretaries to make coffee is a facially neutral policy or practice that can adversely impact upon females, since some people consider this policy to be based in fact upon a sexually derogatory stereotype. If, for instance, the employers' secretarial employees are 97% female and 3% male, a requirement that secretaries make coffee, although facially neutral, would clearly disproportionately require performance from female, as opposed to male secretaries. Once a prima facie case is established, the employer can attempt to justify the policy or practice by presenting a business necessity defense. This issue is non-CDP, and Coordination and Guidance Services should be contacted for assistance.

Example - Adverse Impact Analysis of Coffee Making Charge - R has a Large number of clerical and secretarial employees. Formerly all of these employees were female. Recently R began hiring males as clericals secretaries so that males presently occupy of 7% of the clerical and secretarial positions. Clerical and secretarial employees, both male and female, are required to take turns making coffee for themselves and the technical and professional employees.  CP, a female secretarial employee, filed a charge alleging that assigning clericals and secretaries to make coffee adversely impacted against her and other females. In an attempt to justify the practice as a business necessity, R presented personnel who testified that making coffee is a normal part of the clerical and secretarial job function and so even, though there is impact, there are no adverse connotations associated with the practice. (Whether or not this defense is adequate is non-CDP.)

Example (l) - Discriminatory Territorial or Geographical Assignments - R employs both Black and White employees in the operation of its business.  R's White employees are assigned to inspect only establishments patronized primarily by Whites.  R's Black employees are only assigned to inspect its establishments patronized primarily by Blacks.  CP, Black, filed a charge alleging race discrimination.  See Commission Decision No. 75-007, 10 FEP Cases 283 (1974).

Example (2) - Stereotyped Notions Which Discriminate Against Both Males and Females - R divided its jobs into three groups. Group A consisted of jobs R considered to be of primary interest to males because of physical and environmental demands.  Group B consisted of Jobs R considered to be of primary interest to females because of physical and environmental demands. Group C consisted of jobs R considered to be of interest to both males and females based on the above considerations. Both male and female employees at R's facility filed charges alleging that the above practice constitutes sex discrimination.  Investigation reveals that some females can readily perform the jobs in group A, and some males can readily perform the jobs in group B.  See Commission Decision No. CH 7-3-133, CCH EEOC Decisions (1973) §6018.

Example (3) - Discriminatory Job Assignment Shown by Statistics -Although R, school district, has a 60% female staff, none of its female employees are assigned to positions designated as official, manager, administrator, principal or assistant principal. Additionally, 53% of R' s female employees are concentrated in elementary teaching positions as compated to 10% of its male employees.  This means that 89% of the elementary teaching positions are assigned to females, while no females are assigned to elementary school principal or assistant principal positions.  This is in strong contrast to the secondary school where the majority of teaching, as well as all principal or assistant principal positions, are assigned to males. CP, a female, filed a charge alleging that chis statistical assignment disparity coupled with her rejection for an assistant principal position, even though she possessed the requisite qualifications, was adequate to establish prima facie showing of sex discrimination. See Commission Decision No. 77-85, CCH Employment Practices Guide §6663.

613.6    Job Advancement

Example (l) - Discriminatory Denial of Training - CP, Hispanic, was employed by R as a dock man. In order to be promoted to a spotter position, CP requested on-the-job training and a trial period.   R denied CP^'s request and demanded that CP promptly take a pre-promotion test. CP filed a national origin discrimination charge alleging that other employees were in fact provided on-the-job training and trial periods. R contended that on-the-job training and trial periods preparatory to promotions were contrary to company policy. According to R they were not granted to any employee; therefore, by implication, CP was not treated differently in that respect. However, investigation revealed that Anglos were generally given these opportunities before they were required to take pre-promotion tests. Commission Decision No. 70-601, CCH EEOC Decisions (1973) §6124.

Example (2) - Discriminatory Failure to Support - R, generally discussed assignments and projects to be assigned with its employees before the actual assignments were made. Nonetheless, R "dropped" an exceptionally difficult project on CP's desk with an accompanying note saying it was to be completed by CP. Although CP, a Black employee, had no knowledge of or experience in the particular type of project assigned, he received neither guidance nor support, both of which would have normally been provided. As a consequence of the project's difficulty and complexity and the lack of support, CP frequently worked overtime without compensation. No sooner had the project been completed than, in recognition of the unfairness and difficulty resulting from such an assignment, department-wide overtime was authorized, but not retroactively, to compensate employees when similar types of duties were performed. Given the above background and upon assignment of a second similar project, CP, the only Black employee in that department of the agency, filed a race discrimination charge.  Investigation revealed that similarly situated White employees were in face treated differently. See generally Rice v. Litton Systems, Inc. ___F. Supp. ___, 7 EPD §9354 (DC DC 1974).

Example (3) - Discriminatory Performance Evaluation - relies heavily on supervisory evaluations to determine who to promote. R 's supervisors are all White males. They have no objective guidelines upon which to base their evaluation. CP (female) alleged that her supervisor was biased toward females and, as a consequence, gave her an unfairly low evaluation.  Investigation revealed that CP's performance was comparable to that of her male counterparts, that the supervisor often referred to her as that "pushy broad", and that her evaluation vas markedly lower than her fellow male employees.

The following are suggested areas of inquiry for the EOS to aid in focusing his/her investigation of charges alleging discrimination in terms, conditions, or privileges of employment.

(a)    Ascertain whether there is a written or unwritten rule, regulation, policy, or practice which adversely affects the charging party individually or adversely impacts upon a Title VII class as alleged in the charge.

(1)   Carefully question the charging party co determine the Title VII basis for his/her complaint and the sssues or allegations as they relate to the charging party's Title VII status and his/her employment. For example, the charging (Black) might allege that (s)he must address White fellow employees and supervisors as Mr. or Mrs. because of his/her race.

(2)   Determine whether the subject matter of the charge is discriminatory on its face.

Example - CP complains that her employer precludes its female employees from working overtime. If so, investigate in terms of disparate treatment.

(3)   Determine whether the charging party is complaining about a facially neutral matter which has an adverse impact on him/her as a member of a Title VII protected class.

Example - R requires that all of its employees who do not have college degrees undergo a 3-year probationary period, whereas other employees only have a one-year probationary period. Here, the charge should be investigated in terms of adverse impact.

(4) Determine whether the charging party is complaining about the unfair or unequal application of a facially neutral matter.

Example - R prohibits all of its employees from smoking while on duty. The rule, however, is only enforced with respect to its female employees. The EOS should Investigate the charge in terms of disparate treatment.

(b) Ascertain on an individual basis and in terms of Title VII protected classes how, by whom, and with what purpose the written or unwritten rule, regulation, policy, or practice is administered.

(l) Determine the status (first line supervisor, manager, etc.), Title VII class, duties, responsibilities, and relationship to the respondent of the person enforcing the rule, regulation, policy, or practice.

(2) If the person enforcing the matter is not the respondent or directly in the employ of the respondent, determine the extent to which the respondent can control the duties, actions, and job performance of that person.

(3)  Determine, as precisely as possible, the announced or unannounced reason for the existence of the written or unwritten rule, regulation, policy, or practice.

(4)  Determine whether the written or unwritten rule, regulation, policy, or practice serves the purpose for which it was intended and reaches the desired results.

(5)  Determine by what means and by what procedure the complained of written or unwritten rule, regulation, policy, or practice is administered. Be as exact as possible.

(c)    Ascertain on an individual basis and in terms of Title VII protected classes who is and is not affected, harmed, or benefited by the written or unwritten rule, regulation, policy, or practice.

(1)   Determine whether the written or unwritten rule, regulation, policy, or practice affects only the charging party, a large plant group, members of a particular shop or job classification, or other identifiable class. Be as exact as possible.

(2)   Determine whether a benefit is conferred, harm is meted out, or restrictions or burdens are imposed by the rule, regulation, policy, or practice.

(3)   Determine the full extent of benefit or harm conferred by or loss or damage resulting from, application of the written or unwritten rule, regulation, policy, or practice.  Look for psychological and emotional harm, as well as economic loss.

(d)   Ascertain, on an individual basis and in terms of Title VII protected classes how long and why the written or unwritten rule, regulation, policy, or practice has been in existence.

(1)  Determine whether the written or unwritten rule, regulation, policy, or practice predates Title VII.

(2)  Note any gaps, interruptions, or definite beginning and ending periods along with the surrounding circumstances.

(3)  Determine whether the written or unwritten rule, regulation, policy, or practice was initially intended to be discriminatory or is currently discriminatory because of changed conditions.

Example - A rule arising out of union contract negotiations was craftsmen, as well as laborers would be docked for reporting to work more than one minute late. At the time the rule was negotiated, affected emplolyees were all White. Subsequent to the enactment of Title VII, R hired Blacks into the laborer classification but did not hire Blacks as craftsmen. In later negotiations, the rule was modified to allow craftsmen, but not laborers, a 15-minute grace period. This rule was not initially intended to be discriminatory since all the employees were White but may now be discriminatory because R, after Title VII was enacted, hired Blacks only as laborers.

(e) Ascertain, on an individual basis and in terms of Title VII classes, out of what sort of work environment or atmosphere the charge arose.

(1) Determine whether a blatantly discriminatory atmosphere or environment exists at the CP's workplace.

Example - R' s White/Anglo male employees tell sexually, racially, or ethnically offensive Jokes.

(2) Determine whether the respondent's workforce is representative of the potential pool of employees.

Example - SMSA data shows that Blacks constitute 20% of the SMSA population, but only 1% of R 's workforce Is Black.

(3) Determine whether women or minorities are treated differently as a matter of policy or practice at the respondent's facility.

Example - Males have their mail delivered to their desks, while female employees must get their mail from centrally located boxes.

613.8 Cross References

(a)        How to Investigate, §602

(b)        Theories of Discrimination, §604

(c)        Adverse Impact in the Selection Process, §610

(d)        Selection Procedure Charges Not Covered by UGESP, §611

(e)        Discharge and Discipline, §612

(f)        704(a), §614

(g)        Harassment, §615

(h)        Seniority, §616

(i)        Segregating, Limiting, and Classifying Employees, §618

(j)        Reproductive and Fetal Hazards, §624

(k)        BFOQ, §625

(l)        Benefit Plans, §62