CM-604 Theories of Discrimination

Contents

604.1         Introduction

(a)       Disparate Treatment

(b)       Adverse Impact    

(c)       Perpetuation of Past Discrimination 

(d)       Accommodation  

(e)       Retaliation   

604.2         Introduction to the Theory of Disparate Treatment    

604.3         Proof of Disparate Treatment         

(a)       Comparative Evidence       

(1)       Hiring and Promotion               

(2)       Discharge                 

(3)       Identity of Similarly Situated Individuals Will Vary in Different Employment Situations                  

(4)       Compare As Many Similarly Situated Individuals As Possible    

(5)       Similarly Situated vs. Identically Situated   

(b)       Statistical Evidence      

(c)       Direct Evidence of Motive    

(1)       Disparaging References  

(2)       Stereotyped Views 

(3)       Undesirable Characteristics   

(4)       Examples  

(d)       Which Type of Evidence To Obtain  

604.4         Analysis of Respondent's Explanation or Justification for Its Actions  

(a)       Charging Party's Allegations Are Factually Incorrect  

(b)       Comparison of Similarly Situated Individuals Was Not Valid  

(1)       Individuals Compared Are Not Similarly Situated

(2)       Not All Similarly Situated Individuals Were Compared

(c)       Respondent's Actions Were Based on an Act of Favoritism  

(d)       Charging Party's Statistical Proof Is Not Meaningful

(e)       Statistical Proof To Rebut an Inference of Discriminatory Motive

(f)        Respondent's Actions Taken Pursuant to an Affirmative Action Plan

(g)       Other Members of Charging Party's Title VII Class Not Treated Like Charging Party

(h)       Others of a Different Title VII Status Treated Like Charging Party

(i)        Similarly Situated Person Better Qualified Than Charging Party

604.5         Charging Party's Response to Respondent's Explanation or Justification for Its Actions

604.6         Final Analysis of All the Evidence

604.7         Adverse Impact

(a)       Proof of Adverse Impact

(b)       Respondent's Options When a Selection Procedure Has Adverse Impact

(c)       Selection Charges Which Should Not Be Analyzed Under the Uniform Guidelines on Employee Selection Procedures

604.8         Perpetuation of Past Discrimination

(a)       Exception for Bona Fide Seniority Systems Which Perpetuate Past Discrimination

(b)       Proof of Perpetuation of Past Discrimination

(c)       Respondent's Justification or Explanation

604.9         Accommodation

(a)       Religious

(b)       Accommodation of Handicapped Individuals

604.10       Statutory Defenses

(a)       Religious Educational Institutions

(b)       Membership in the Communist Party

(c)       Bona Fide Occupational Qualification (BFOQ)

(d)       Employment of Indians On or Near an Indian Reservation

(e)       Veterans Preference

(f)        National Security

(g)       Reliance on a Commission Interpretation or Opinion (§ 713(b)(1) of Title VII)

 

In a court proceeding respondent only has to articulate a legitimate non-discriminatory reason for its actions.  McDonnell Douglas Corp. v. Green, supra; Furnco Construction Corp. v. Waters, supra; Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 18 EPD ¶ 8673 (1978); Texas Department of Community Affairs v. Burdine, 101 S.Ct. 1089, 25 EPD ¶ 31,544 (1981).  This does not mean that respondent must prove the absence of a discriminatory motive.  The burden of proving that a violation of Title VII has occurred always remains with the plaintiff in a court proceeding.

In an investigation of a Title VII charge, the EOS has the responsibility of determining whether there is evidence of the non-discriminatory reason.  The EOS should seek corroboration of the alleged legitimate reason from the respondent, and then examine and analyze the respondent's position statement and evidence.  A detailed discussion of explanations and justifications commonly raised by respondents follows.

(b)       Comparison of Similarly Situated Individuals was Not Valid

(1)       Individuals Compared are Not Similarly Situated - Respondent could present evidence indicating that the charging party was compared to individuals who were not similarly situated for the purpose of the employment decision that charging party is complaining of.

Example - CP was employed by R as a factory worker.  She had been working in that job for ten months when she was laid off.  CP alleges that R laid her off on the basis of sex.  She identified several male employees who were hired after she was and should have been laid off before she was. R's defense to the charge is that CP is not similarly situated with the male employees who were retained.  The individuals that CP cites were all former employees of R who had been laid off and reinstated after she was hired.  Because they were only in layoff status, they maintained their seniority when they returned to work.  Since they had greater seniority than CP they should not have been laid off prior to CP, as she alleges.

(2)       Not all Similarly Situated Individuals were Compared with the Charging Party - The treatment accorded charging party should be compared to as many similarly situated individuals as possible.  A comparison with only one other similarly situated individual might indicate that disparate treatment has occurred, but a comparison with all or most similarly situated individuals might dispel this inference.  (See the example at § 604.3(a)(4) for an illustration of this point).

If a respondent has a policy of according preferential treatment to relatives of employees and its workforce is predominantly of one race or national origin, the policy will ordinarily have an adverse impact on other races and national origins.  See e.g., Commission Decision No. 71-797, CCH EEOC Decisions (1973) ¶ 6181.

Example 1 - In a charge alleging a pattern and practice of discrimination against Hispanics in a skilled craft job category, the EOS compared the percentage of Hispanic craftsmen in R's workforce with the percentage in the SMSA where R is located.  R is a municipal government which has a residency requirement and alleges that the city not the SMSA, is the relevant labor market area.

Example 2 - Same facts as above except the R's objection is that the disparity is not significant enough to raise an inference of discrimination. The percentage of Hispanic craftsmen in R's workplace is 3%, but the percentage of Hispanic craftsmen in the city is 5.4%.  There is a disparity, but R alleges that it is not statistically significant and therefore no discrimination can be inferred from it.

The issues that respondent raised in these two examples are covered in § 609 of the Compliance Manual.

Example 3 - CP, a woman, alleges that R refused to hire her for the position of auto worker, and that R discriminates against women as a class by refusing to hire women as assembly line auto workers.  The statistical data compiled by the EOS indicated that women were available for these positions and many had expressed an interest in them, yet the percentage of female assembly line workers is only 2%.  R alleges that these statistics are misleading because the EOS failed to consider recent turnover data.  Because of poor auto sales, R had recently laid off and fired significant numbers of employees, many of whom were women.  The employees had been laid off in accordance with a bona fide seniority system which called for the last hired to be the first laid off or fired.  Because women had only recently started working in the auto industry as assembly line workers, they have low seniority and are generally the first fired or laid off.

The turnover information presented by R significantly changes the meaning of the statistical evidence the EOS had gathered.  Because a recent turnover, which included large numbers of women, had taken place pursuant to a lawful seniority system, the present underutilization of women cannot be attributed to discrimination.  (See § 616, Seniority, for further discussion of bona fide seniority systems and layoff).

Example - In a failure to hire case, CP, a Black man, presents evidence that he applied for and was qualified for job X, but that R hired a White man instead.  The evidence presented--that charging party was treated differently from a similarly situated person of a different Title VII status--is sufficient to establish a prima facie violation.  In attempting to rebut this showing, R presents evidence that the percentage of Blacks in its workforce is greater than the percentage of Blacks within the SMSA as a whole.  This, according to R, rebuts the CP's prima facie showing.  While this evidence is relevant, it does not conclusively rebut the prima facie case, since discrimination can occur in an individual case, even if the employer's policies as a whole are non-discriminatory.

The Commission's Affirmative Action Guidelines govern this issue.  29 C.F.R. Part 1608.  For detailed instructions on how to analyze an affirmative action plan and determine whether action was lawfully taken pursuant to it, the EOS should refer to § 607 of the Compliance Manual.

Example 1 - CP, a woman, convened staff meetings during her lunch hour to discuss the status of women at R.  She violated no company policies in setting up these meetings or in her outspoken advocacy of women's rights.  Indeed, other employees, mostly male, held luncheon staff meetings to discuss the company softball team, the United Way Campaign and other matters.

CP was terminated.  The evidence established a prima facie case, since none of the men conducting meetings were terminated.  In response, R argues that since none of the other women who had attended the women's meetings were terminated, its actions did not discriminate against CP.  This argument will not rebut CP's prima facie case.

Example 2 - CP, a woman, applied for a position with R consulting firm as a management consultant. CP met all of the stated minimum requirements for the position and was one of the applicants chosen for an interview.  During the interview, R official asked CP whether she had children.  CP responded that she had three children, ages 2, 4, and 6 years old.  R official then asked CP whether she was sure she could handle a full-time job, questioned her about her child care arrangements, and reminded her that the available position required a fair amount of traveling.  CP was not hired to fill the available position.  She files a charge of discrimination alleging that R refused to hire her because of her sex.  R's defense to the charge is that it has employed several women as management consultants.

Sex discrimination within the meaning of Title VII need not be based solely on sex.  If R bases an employment decision on sex plus another neutral characteristic, a violation of Title VII has occurred.  In this case, R may not refuse to hire women with young children but hire men with children of the same age unless it can demonstrate that conflicting family obligations are more relevant to job performance for a woman than for a man.  Phillips v. Martin Marietta Corp., 404 U.S. 542, 3 EPD ¶ 8088 (1971); Commission Decision No. 72-0386, CCH EEOC Decisions (1973) ¶ 6295.

Example - R decreased its workforce by laying off 4 persons, 3 of whom were White and 1 of whom was Black.  In accordance with a long-standing policy, lay-offs were affected according to seniority.

The Black charging party established a prima facie case by showing that he was laid off and that White employees of equal seniority were not laid off.  In response, R asserts that the fact that it also laid off 3 White employees is evidence that charging party's lay-off was not discriminatory.

However, if the three White employees have less seniority than the CP, their lay-off is not relevant to CP's allegation since they were not similarly situated.  (This example concerns disparate application of the provisions of a seniority system not the application of a neutral seniority system which has adverse impact.)

Example - R developed a management training program into which it placed one employee each quarter.  The R's minimum requirements for the position included, among other things, a requirement that the trainee have a degree from an accredited business school (normally a two-year program) or two years of college.  CP, a female teller, met the minimum qualifications, having graduated from business school and completed several college courses.  The selectee, a male, had a college degree.  Because the CP met the minimum qualifications and was not selected, she established a prima facie case of discrimination. R defended its action on the basis that the selectee was better qualified because he had a college degree.  In this situation, the EOS should examine all of the circumstances to determine whether R's defense is a pretext for discrimination.  For example, the EOS should determine the present number of female management trainees, how many there have been in the past, and the number of management trainees who have college degrees.  Respondent should be asked to explain why a college degree is not a prerequisite for admission to the program, if it renders an applicant more qualified.

A number of problems can arise in analyzing the evidence.  For example, conflicting testimony will often be presented. A determination of who is telling the truth must be based on the credibility of witnesses.  The term "credibility of witnesses" refers to how believable a witness is.  A determination of which witness is more credible involves the EOS's perception of which witness is more believable.

The first thing the EOS should do when a conflict arises is seek corroborating evidence of each version of the facts.  Charging party's co-workers may be able to verify his/her version of an occurrence.  Documents and the testimony of other management officials might verify respondent's version of the facts.  If there is no way to corroborate conflicting versions of a factual situation, the EOS must then decide who (s)he believes. The decision can be based on a number of factors.  For example, if the EOS has been able to establish that many of the charging party's statements have been false or misleading, the EOS is less likely to believe a statement that (s)he is unable to corroborate. On the other hand, if everything else charging party has stated is true, and there is no other evidence to corroborate respondent official's version of the facts, there is no reason to suspect that charging party is not telling the truth.

Ideally, in this situation, the EOS should try to resolve the charge on other evidence.  For example, if charging party has submitted direct evidence of motive in a promotion charge (e.g., a disparaging racial remark by charging party's supervisor), charging party's supervisor denies making the remark, and there are no witnesses to corroborate charging party's allegation or the supervisor's denial, the charge should be resolved by comparative and/or statistical evidence if possible.

(Note:  If charging party's co-workers can testify to racially disparaging remarks that the supervisor has made to or about other employees of charging party's Title VII status, charging party's allegation that the supervisor made a racially disparaging remark to him becomes much more credible.)

Another problem in determining whether there is reasonable cause to believe that a violation of Title VII has occurred arises in analyzing respondent's explanation for its actions.  As indicated above, respondent must articulate some legitimate non-discriminatory reason for its actions.  The EOS should then seek corroborating evidence of the alleged legitimate reason from respondent.  The charging party must then show that respondent's reason for the treatment accorded charging party is a pretext for discrimination.  Remember that the EOS must also examine respondent's evidence for pretextuality.  This will involve verifying respondent's statements and other evidence and comparing it with evidence that the EOS has received from respondent, the charging party, and other witnesses.

(Note:  If a respondent asserts a bona fide occupational qualification (BFOQ) as a defense to a charge, it must prove that sex, religion, or national origin is a BFOQ for the position that charging party sought.  See § 625 of the Compliance Manual.)

The EOS must also be concerned with how much credence (s)he should give to each type of evidence.  For example, how much weight should the EOS give to statistical evidence?  If statistical data establishes that the percentage of a racial, sexual, or ethnic group in respondent's workforce is proportionate to the percentage in the relevant labor pool, there is no inference of discriminatory motive based on these statistics.  See Hazelwood School District v. U.S., supra.  In fact, respondent may raise these statistics to rebut an inference of discriminatory motive arising from comparative data.  Furnco Construction Corp. v. Waters, supra.  In either case, the EOS must remember that the absence of statistical underutilization does not conclusively establish that there has been no discrimination, for an individual act of discrimination may have occurred.

            If the statistics indicate that there is underutilization of a race, sex, or ethnic group in respondent's workforce, they raise an inference of discriminatory motive and may be used to support charging party's case, but they too are not conclusive. Statistical evidence is but one type of evidence.  Sound comparative evidence and verifiable direct evidence of motive should usually be given more weight in an individual case of disparate treatment.  Statistical evidence plays a more important role where a pattern and practice of discrimination is alleged. Whatever type of evidence is used and whatever credence the EOS places on the evidence, the following standard must be applied in determining whether to recommend that the charge be resolved by a cause or no cause letter of determination:  is it more likely than not that a violation of Title VII has occurred.  In applying this standard, the EOS must bear in mind that only charges which are litigation worthy merit a cause determination.  (See § 602 of the Compliance Manual for a discussion of the litigation worthy standard.)

In an adverse impact charge, the focus of the inquiry is on the consequences of employment practices rather than the motive.  The charging party does not have to prove that respondent's actions were based on a discriminatory motive.  (S)he need only establish that an employment practice, even though applied equally to all applicants or employees, has the effect of excluding or otherwise adversely affecting women and/or minority groups in significant numbers.

If respondent does not eliminate the adverse impact in the total selection process for a job, it must justify the use of the selection procedure causing the adverse impact by showing that it is valid or is otherwise justified by business necessity. In order to establish business necessity, the respondent must show a relationship between the selection procedure and performance on the job.  In other words, respondent must show that the selection procedure is job related.  In most instances, a respondent can justify the use of a selection procedure which has adverse impact (that is, demonstrate the business necessity of its use) only by showing that the procedure has been validated according to the technical requirements of the UGESP.  An EOS is not expected to understand the technical requirements for validity studies under the UGESP; however, a general understanding of validation is useful.  Validation is the process of demonstrating that the use of a selection procedure to measure a job applicant's skills, knowledge, or abilities is related to the applicant's performance on the job.  For example, a validation study might show statistically that applicants scoring below 70 on a test are less likely to perform successfully on the job than applicants scoring above 70.

Section 3B of the UGESP requires, as part of any validity study, an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedures which have as little adverse impact as possible.  If a suitable alternative with substantially equal validity and lesser adverse impact is available, then a procedure having greater adverse impact may not lawfully be used.

Whenever a respondent submits a validity study purporting to justify a selection procedure with adverse impact, the Commission's own psychologists will evaluate the study for compliance with professional standards.

Normally, the method of justifying the use of a selection procedure which has adverse impact is validation. However, the UGESP, Section 6B, recognizes that there may be circumstances in which a respondent could "otherwise justify continued use of the procedure in accord with Federal law".  Such justification usually requires a demonstration of "business necessity."  A respondent cannot establish a business necessity for a practice or policy having an adverse impact merely by establishing a business purpose for the practice or policy.  The respondent must establish that an overriding legitimate business purpose exists which is necessary to the safe and efficient operation of the business.  Robinson v. Lorillard, 444 F. 2d 791, 3 EPD ¶ 8267 (4th Cir. 1971).  The court stated:

The business purpose must be sufficiently compelling to override any racial or sexual impact, the practice must effectively carry out the business purpose it is alleged to serve, and there must be available no acceptable policies or practices which better accomplish the business purpose or accomplish it with less racial impact.

Robinson, 444 F. 2d at 798; See Commission Decision No. 81-8 (1980).

In United States v. Bethlehem Steel Corp., 446 F. 2d, 3 EPD ¶ 8257 (2nd Cir. 1971), the court stated that the policy or practice must not only foster safety and efficiency of a plant, but also be essential to those goals.  If the legitimate ends of safety and efficiency can be served by a reasonably available alternative system with less discriminatory effects, then the present policies may not be continued.

U.S. v. Bethlehem Steel Corp., 446 F. 2d at 662; See U.S. v. Jacksonville Terminal Co., 451 F. 2d 418, 3 EPD ¶ 8324 (5th Cir. 1971).

Example 1 - CP, a Black male, alleges that R refused to hire him for the position of master machinist on the basis of race and that R discriminates against Blacks as a class in hiring for the skilled job categories.  R denies the charge and states that it hires without regard to the race of the applicant.  An investigation of the charge reveals that R maintained segregated job categories prior to 1965.  Blacks and other minorities were assigned only to the Laborer and Janitorial departments.  R stopped this policy in July 1965 but continued its word-of-mouth recruitment policy for the skilled job categories. When a vacancy becomes available in the skilled job category, R asks its skilled employees to inform friends and relatives of the vacancy and invite them to apply.  Almost all of the positions which became available since 1965 have been filled through word-of-mouth recruitment.  R employs no Blacks in any of the skilled job categories.  The maintenance of a word-of-mouth recruitment policy by an all-White workforce as the sole basis of informing potential applicants of a vacancy has the foreseeable effect of perpetuating the effects of R's past discriminatory hiring practices. Commission Decision No. 72-0978, CCH EEOC Decisions (1973) ¶ 6345; Commission Decision No. 72-0599 CCH EEOC Decisions (1973) ¶ 6313.  See Commission Decision No. 72-2130, CCH EEOC Decisions (1973) ¶ 6371; Commission Decision No. 71-359, CCH EEOC Decisions (1973) ¶ 6172; Commission Decision No. 70-422, CCH EEOC Decisions (1973) ¶ 6127; Ingram v. Madison Square Garden Center, 482 F. Supp. 414, 21 EPD ¶ 30,392 (S.D.N.Y. 1979); Barnett v. W.T. Grant Co., 518 F. 2d 543, 9 EPD ¶ 10,199 (4th Cir. 1975).

Example 2 - CP alleges that R refuses to hire Blacks as summer employees.  R contends that it gives preference to applicants who are former summer employees and to children of employees who are students.  Prior to 1964, R employed very few Blacks due to discriminatory hiring practices.  The policy of giving a preference to the children of employees and to former employees perpetuates R's past discriminatory practices.  Commission Decision No. 71-1447, CCH EEOC Decisions (1973) ¶ 6217.

Example 3 - R is a referral union.  CP alleges that R discriminates against Hispanics by excluding them from membership and by refusing to refer them to high paying positions.  The evidence indicates that R refused to admit Hispanics to the union prior to 1965.  This charge was filed in 1967.  R makes referrals on the basis of priority groups.  The group which receives the highest priority consists of members who have worked in R's jurisdiction for 5000 hours over the past eight years or 2,500 hours over the past three years.  Since Hispanics have been prevented from acquiring that experience, R's policy of giving priority to members who have the experience perpetuates R's past discriminatory practices. Commission Decision No. 72-0265, CCH EEOC Decisions (1973) ¶ 6291.

Example 4 - CP, a Black male, alleges that R's policy prohibiting transfer between Department A and Department B perpetuates past discrimination. Prior to July 2, 1965, R hired Blacks only in Department A.  The employees in Department B were all White.  The no transfer policy is not part of a bona fide seniority system.  The rule is a separate company policy.  Although R's no transfer policy is facially neutral, it perpetuates R's past discriminatory hiring practices, and therefore violates Title VII.  U.S. v. Lee Way Motor Freight, Inc., 625 F. 2d 918, 21 EPD ¶ 30, 286 (10th Cir. 1979); Johnson v. Ryder Truck Lines Inc.,      F. Supp.    , 23 EPD ¶ 31,187 (W.D. N.C. 1980); See Parsons v. Kaiser Aluminum and Chemical Corp., 575 F. 2d 1374, 17 EPD ¶ 8427 (5th Cir. 1978); rehearing denied, 583 F. 2d 132, 18 EPD ¶ 8709 (5th Cir. 1978); cert. denied, sub nom. Steelworkers (USA), Local 13000 v. Parsons, 441 U.S. 968, 19 EPD ¶ 9197 (1979).

The perpetuation of past discrimination theory is similar to the adverse impact theory in that neither theory is concerned with the respondent's present motivation.  There is no requirement that the charging party prove the presence of a discriminatory motive.  However, past motive may be highly probative, and should be looked for in a perpetuation case (bearing in mind, of course, that direct evidence of past discriminatory motive is not required).

Note:  The perpetuation of past discrimination theory of discrimination is not universally recognized by the courts as a basis for relief.  The EOS should analyze an alleged act of discrimination to determine whether some other theory of discrimination might also be applicable.

The Commission has taken the position that a seniority system is bona fide only if there was no discriminatory intent in the creation or maintenance of the system, and if it was instituted prior to the effective date of Title VII (July 2, 1965).  Interpretive Memorandum:  International Brotherhood of Teamsters et al v. United States; United Airlines Inc. v. Carolyn J. Evans, (May 1, 1979).

If a seniority system was instituted prior to the effective date of Title VII, and there is no evidence showing discriminatory intent in the creation or maintenance of the system, charges based on perpetuation of past discrimination by the seniority system should be resolved with a no cause Letter of Determination.

Example - CP, a Black female, alleges that R discriminated against her on the basis of race by laying her off pursuant to a seniority system which perpetuates R's past discriminatory hiring practices.

The collective bargaining agreement between R and CP's union requires that the last hired is the first to be laid off.  CP alleges that this seniority system perpetuates R's past discriminatory hiring practices.

The seniority system was instituted on June 12, 1963, and there is no evidence indicating that there was discriminatory intent in the creation or the maintenance of the seniority system.  The system is bona fide and therefore protected by § 703(h) of Title VII.  Commission Decision No. 81-3 (1980).

If there is any evidence that there was discriminatory intent in the creation or maintenance of the seniority system, the EOS should contact Coordination and Guidance Services, Office of Legal Counsel.  This issue is non-CDP.  See § 616 of the Compliance Manual for more information on this issue.

In proving a charge alleging perpetuation of past discrimination, the charging party must demonstrate a causal connection between the past discrimination and the current policy's adverse effects.  The following example illustrates this theory of discrimination and shows how it differs from the adverse impact theory.

Example - R has two departments, the Oven and the Shop, with entry-level jobs in each department which have no job requirements.  Prior to 1960, R assigned all Blacks to the Oven and all Whites to the Shop.  From 1960 through 1964, it hired both Blacks and Whites into both the Oven and the Shop. In 1965, R instituted a high school diploma requirement that was applied to anyone who desired to be either hired or transferred into the Shop. Those who were already employed in the Shop, but who did not have a high school diploma were permitted to remain there.  The high school diploma requirement is still in effect in 1972 and is challenged by all R's Black employees who are employed in the Oven and lack high school diplomas.  "Group A" consists of Blacks hired prior to 1960 who lack a high school diploma, while "Group B" consists of Blacks hired between 1960 and 1964 who lack a diploma.  The effect of the high school diploma requirement is to presently exclude from the Shop all members of Group A, despite the fact that Whites hired prior to 1960 without a high school degree are permitted to remain.  Thus, Group A's pre-1960 discriminatory exclusion from the Shop continues to affect them because of the high school diploma requirement.  That is, R's present policy "perpetuates R's past discrimination" against Group A.  This is true even if in the surrounding community Blacks and Whites graduate from high school with equal frequency.  Since there are persons who have worked and who continue to work in the Shop without a high school education, it cannot be concluded that a high school education is "necessary" to the safe and efficient performance of Shop jobs.  Under the circumstances, the high school diploma requirement currently discriminates against members of Group A because of their race in violation of Title VII. On the other hand, Blacks in Group B did not suffer discrimination when they were hired, so the high school diploma requirement does not perpetuate past discrimination with respect to them.  They could be victims of discrimination under the adverse impact theory of discrimination.

Assume the same facts as above, except that Whites were hired into both departments at all times, while Blacks were hired only into the Oven prior to 1960.  Thus, the educational requirement excludes not only members of Group A from transferring to the Shop, but also Whites hired prior to 1960 who were hired into the Oven and who lack a high school degree ("Group C").  This does not change the result, however, because members of Group C had the opportunity to be hired into the Shop prior to 1960, while members of Group A were denied this opportunity because of their race.

The Rehabilitation Act of 1973, as amended, requires that all departments and agencies in the Executive Branch of the federal government create an affirmative action plan for the hiring, placement, and advancement of handicapped individuals.  29 U.S.C. § 791.  These departments and agencies must also provide reasonable accommodation for handicapped individuals unless to do so would create an undue hardship.  29 CFR § 1613.704.

The duty to accommodate is an affirmative obligation.  Employers must accommodate each individual's need for an accommodation.  Accommodation is different from other Title VII theories of discrimination because proof of a failure to accommodate does not involve comparisons between the treatment accorded charging party and other similarly situated employees, or a determination of whether neutral employment practices have an adverse impact on the employment opportunities of women and minorities.  A prima facie case of discrimination is established if a charging party shows that (s)he informed respondent of the need for an accommodation, and there was a failure to accommodate.  Respondent is then given the opportunity to establish that accommodation would have created an undue hardship on the conduct of its business.

The Commission recently issued Guidelines on Discrimination Because of Religion which deal with the issue of religious accommodation.  Guidelines on Discrimination Because of Religion, 29 C.F.R. Part 1605.  The guidelines provide that an employer or labor organization has a duty to explore all possible methods of reasonable accommodation once an employee or prospective employee expresses a need for an accommodation. Accommodation may be requested, for example, because an employee's or prospective employee's religious practices conflict with his/her work schedule, because an employee's religious practices do not permit him/her to join a labor organization or pay a labor organization a sum equivalent to dues, or because the employee's religious practices prohibit him/her from wearing a uniform prescribed by the employer.

In TWA v. Hardison, 432 U.S. 63, 14 EPD ¶ 7620 (1977), the United States Supreme Court found that it would be an undue hardship on an employer if it had to bear "more than a de minimis cost" in order to accommodate an employee's religious practices.  What constitutes "more than a de minimis cost" must be determined on a case by case basis.  The guidelines define the term generally as follows:

In general, the Commission interprets this phrase as it was used in the Hardison decision to mean that costs similar to the regular payment of premium wages of substitutes, which was at issue in Hardison, would constitute undue hardship. However, the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing a reasonable accommodation.  Further, the Commission will presume that generally, the payment of administrative costs necessary for providing the accommodation will not constitute more than a de minimis cost.  Administrative costs, for example, include those costs involved in rearranging schedules and recording substitutions for payroll purposes. 29 C.F.R. ¶ 1605.2 (e)(1).

Coordination and Guidance Services, Office of Legal Counsel should be contacted for guidance whenever this issue arises.

All federal departments and agencies in the Executive Branch must make reasonable accommodation for handicapped individuals, unless to do so would create an undue hardship.  29 C.F.R. § 1613.704.  A reasonable accommodation may include making facilities readily available and usable by handicapped employees, job restructuring, and acquisition or modification of equipment or devices.  The requirement to reasonably accommodate handicapped individuals is not synonymous with the requirement contained in Title VII.

The Rehabilitation Act of 1973, Section 501 as amended, requires all Federal departments and agencies in the Executive Branch of government to initiate affirmative action programs which encourage the hiring, placement, and advancement of handicapped individuals.

The term "handicapped individual" has been liberally defined by the Act.  It includes any person who has a physical or mental impairment which substantially limits one or more major life activities.  A handicapped individual may include a person having a record of impairment, or one who is regarded as having such an impairment.  With respect to employment under federal contracts and employment under federal grants and programs, alcohol or drug abusers are not considered "handicapped individuals" to the extent that the "current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others."  Rehabilitation Act of 1973, as amended, § 706.  Federal employees who abuse alcohol or drugs are considered handicapped individuals within the meaning of the Act.

Since the 1978 amendment to the Act, Federal employees and applicants for Federal employment can file charges of employment discrimination under the procedures for filing charges under Title VII of the Civil Rights Act of 1964.  See, 29 C.F.R. §§ 1613.708 - 1613.710.  For a detailed discussion of how to investigate charges of discrimination filed under the Rehabilitation Act of 1973, as amended, see § ____ of the Compliance Manual.

It shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university or other educational institution or institution of learning is directed toward the propagation of a particular religion.

This exception only applies to religious discrimination.  A religious educational institution may not discriminate against applicants or employees on the basis of race, color, sex, or national origin.

There is some overlap between this exception and the exemption contained in § 702 of Title VII because the 702 exemption also exempts a religious educational institution from the prohibition against religious discrimination.  (See, § 605 of Volume II of the Compliance Manual for a discussion of the 702 exemption.)

If a respondent claims that the Commission has no jurisdiction over it because it is a religious educational institution, the following inquiries should be addressed to the respondent.

(1)       Submit information indicating whether respondent is owned, supported, controlled, or managed by a particular religion or religious corporation.  The statement should include the following information:

(i)        For the last 5 years, identify the percentage of respondent's annual monetary contributions which came from a religious corporation, association, or society. Identify the religious corporation, association, or society.

(ii)       Was respondent founded by a particular religious group or religious corporation, association, or society?

(iii) Is respondent affiliated with a particular religious group, church, corporation, association, or society?  If so, submit a statement identifying the affiliation.

(iv)      Does respondent require that all nominees to the Board of Trustees or similar body be of a particular religious faith?  If so, identify that faith.

(v)       Does respondent require that its faculty members be of a particular religious faith?  If so, identify the religious faith.  If not, what percentage of respondent's faculty members are of the religious faith that respondent is affiliated with?

(2)       Submit a statement indicating whether the curriculum that respondent offers is directed toward the propagation of a particular religion.  The following information should be included in your submission.

(i)        Respondent's course offerings for the past 3 years.  Include a description of the content of those courses directed toward the propagation of a religion.

(ii)       Identify the percentage of respondent's faculty members who are priests, nuns, ministers, rabbis, or lay ministers of the church, temple or other religious entity with which respondent is affiliated.

Example - CP applied for a position as an instructor with respondent university.  R did not hire CP but instead hired an instructor of the Catholic faith.  CP is Jewish and files a charge of religious discrimination.  R alleges that Title VII does not apply to its hiring decision because it is exempt under § 703(e)(2) of the Act.  The EOS submitted a request for information to R and learned that respondent was founded by the Catholic Church and receives 40 percent of its annual operating budget from the church.  The EOS also learned that all of the members of the Board of Trustees are of the Catholic faith, and that respondent makes a deliberate effort to maintain a majority of Catholic faculty members.  Ten percent of the faculty members are Catholic priests and 45 percent of the faculty members are of the Catholic faith.  Respondent offers a wide variety of courses in various religions and requires all undergraduate students to take 3 religion courses.

Based on this information, respondent is entitled to the exemption contained in § 703(e)(2).  See Commission Decision No. 75-186, CCH Employment Practices Guide ¶ 6553.  Respondent clearly is supported, controlled, and managed by the Catholic Church.  Its curriculum is not directed toward the furtherance of the Catholic religion, but this criterion need not be met if respondent is supported, controlled, or managed by the Catholic Church.

If respondent raises this statutory defense, the EOS should verify that the charging party is in fact a member of one of the organizations.  If so, Title VII does not prohibit an employer from discriminating against him/her on that basis, however, an employer cannot discriminate against an individual who is a member of one of the organizations indicated above on the basis of race, color, religion, sex, or national origin.

Example - CP is a member of the Communist Party. She was employed by R as a secretary.  CP applied for a promotion to the position of Executive Secretary.  She was not promoted and believes that her non-selection was on the basis of her national origin, Hispanic.  CP files a charge of discrimination and R raises § 703(f) as a defense. R states that CP joined the Communist Party several months after she started working for R, but R only recently learned of it.  After talking with the CP and several witnesses, the EOS is convinced that CP is a member of the Communist Party, and that R was aware of her membership.  The EOS also believes that the CP was not promoted because of her membership in the Communist Party.

CP was not promoted because she is a member of the Communist Party, therefore the failure to promote was not an unlawful employment practice under Title VII.

In analyzing a BFOQ defense to a charge, it is important to distinguish between BFOQ and business necessity. Both BFOQ and business necessity are defenses based on business needs which a respondent may raise to a charge of discrimination. The primary difference is that the BFOQ statutory exception allows an employer to deliberately discriminate on the basis of religion, sex, or national origin where sex, religion, or national origin is a BFOQ for the position in question.  The employer has the burden of establishing that only individuals of one sex, national origin, or religion can perform the duties of the job involved in a safe and efficient manner.  Weeks v. Southern Bell Tel. and Tel. Co., 408 F.2d 228, 1 EPD ¶ 9970 (1969). The respondent must show that the "essence of the business operation would be undermined by not hiring members of one sex exclusively. "Diaz v. Pan American Airlines, 442 F.2d 385, 388, 3 EPD ¶ 8166 at 6522 (1971).

The business necessity defense may be raised where a neutral employment criterion applied to all employees or applicants, has the effect of discriminating on the basis of race, color, religion, sex or national origin.  (See § 625 of the Compliance Manual for a complete discussion of the BFOQ defense).

(1)       Submit proof that respondent publicly announced its policy of preferring to hire Indians, (e.g., job advertisements and announcements, posters respondent regularly displays in its place of business).

(2)       Identify the individual hired for the position that charging party sought and indicate whether that individual is an Indian living on or near a reservation.  (Provide his/her name and address.)

Example - R is a factory located 60 miles from an Indian reservation in the state of Montana.  It regularly displays posters in its facility indicating that it has a policy of preferring to hire Indians from the nearby reservation to fill available positions.  R advertised a supervisory vacancy and indicated in the advertisement that Indian applicants are preferred.  CP, a White, saw the advertisement but applied for the position.  R hired an Indian who lived 52 miles from its facility but 8 miles from the Indian reservation. CP files a charge of discrimination with the Commission.  His attorney alleges that R is not entitled to the exemption contained in § 703(i) of Title VII because the R is not located near an Indian reservation.

The phrase "near a reservation" cannot be precisely defined.  At a minimum it encompasses all of the area a person could reasonably be expected to travel from the reservation or a nearby community in one working day to and from work. In this case, R is located 60 miles from the reservation.  Whether this is "near" the reservation as previously defined will depend on a number of factors.  For example, in certain states, it is not uncommon for individuals to travel several miles to and from work each day. This is probably particularly true for Indians living on Indian reservations because reservations tend to be located in isolated geographical areas away from major population centers.  The nearest employer, not located on the reservation, might be 60 miles from the reservation, and an individual could reasonably be expected to travel from the reservation to that employer to work. Additionally, the use of public transportation and the automobile have made it much more likely that individuals will travel 120 miles to and from work each day.

In Montana, it is not uncommon to travel long distances to and from work.  One could reasonably be expected to travel 120 miles to and from work therefore the R is entitled to the 703(i) exemption.

The determination of whether an employer is located near a reservation must be made on a case by case basis.  In large part, common sense will determine whether this criterion has been met.  This determination can be made by the EOS in consultation with his/her supervisor.  If assistance is needed, contact Coordination and Guidance Services, Office of Legal Counsel, for additional guidance.  For further discussion of this exception, see also Morton v. Mancari, 417 U.S. 535, 7 EPD ¶ 9431 (1974); Wardle v. Ute Indian Tribe, 623 F. 2d 670, 23 EPD ¶ 31,035 (10th Cir. 1980); Livingston v. Ewing, 601 F. 2d 1110, 20 EPD ¶ 30,002 (10th Cir. 1979).

Example - CP, a female, went to the state employment service to obtain information on employment opportunities in City Y and to be referred to prospective employers if positions for which he qualified were available.  CP is a machinist and saw a request by a local employer for two experienced machinists.  When CP inquired about the positions, the employment specialist asked CP whether she was a veteran.

When CP replied that she was not, the specialist indicated that he could not consider referring CP for the job.  The specialist explained that state law requires that R give preferential treatment to veterans in referring applicants for employment. The employer had asked for only five well qualified applicants.  Of the group of individuals that the specialist had interviewed for the two positions, 15 were veterans.  The specialist stated that he would choose five applicants from that group.

Title VII does not interfere with the operation of the state veterans preference law, regardless of any discriminatory effect it might have.

If the respondent grants a preference to veterans, but this preference is not required by a local, state, or Federal law, the issue is non-CDP, and you should contact Coordination and Guidance Services, Office of Legal Counsel (Inserted by pen and ink authority in Directives Transmittal 517 dated 4/20/83).

(1) Occupancy of the position or access to the premises involved must be subject to a national security requirement under a security program imposed by statute or Presidential order; and

(2) The person involved does not meet or has ceased to meet the requirement.

If a respondent asserts this exception to the provisions of Title VII as a defense to the charge, respondent should be asked to identify the statute or Presidential order which imposes a national security requirement, and the manner in which the CP does not meet or has ceased to meet that requirement.  After obtaining this information, contact Coordination and Guidance Services, Office of Legal Counsel (Inserted by pen and ink authority in Directives Transmittal 517 dated 4/20/83).  This issue is non-CDP.

In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission.

Section 1601.33 of the Commission's Procedural Regulations sets out the only types of documents that can be relied on as a written interpretation or opinion or the Commission.

Section 1601.33 Issuance of Interpretation of Opinion -

Only the following may be relied upon as a "written interpretation or opinion of the Commission" within the meaning of § 713 of Title VII:

(a)       A letter entitled "opinion letter" and signed by the General Counsel on behalf of the Commission, or

(b)       Matter published and specifically designated as such in the Federal Register, including the Commission's Guidelines on Affirmation Action, or

(c)       A Commission determination of no reasonable cause issued under the circumstances described in § 1608.10 (a) or (b) of the Commission's Guidelines on Affirmative Action 29 C.F.R. Part 1608, when such determination contains a statement that it is a "written interpretation or opinion of the Commission."  29 C.F.R. § 1601.33.

If a respondent presents any document which is specifically designated as a written interpretation and opinion of the Commission or alleges that a document is a written interpretation and opinion, the EOS or his/her supervisor must contact Coordination and Guidance Services, Office of Legal Counsel for guidance.