Am Jur 2d Part 2 Job Discrimination

JOB DISCRIMINATION
by
Richard B. Gallagher, J.D., Glenn A. Guarino, J.D., Irwin J.Schiffres, J.D., Tim A.
Thomas, J.D., Mitchell J. Waldman, J.D.
TOPIC SCOPE
Scope of Topic:
This topic discusses federal fair employment practices laws while noting the key
concepts in state fair employment practices laws, and includes discussions of the
governing federal statutes, types of discrimination prohibited, persons protected,
regulated employer, union and other practices, affirmative action plans, enforcement
procedures, and reporting requirements.
Federal Aspects:
Federal statutes discussed herein include the Civil Rights Act of 1964, earlier civil rights
acts, the Age Discrimination in Employment Act, the Americans With Disabilities Act,
the Equal Pay Act, and the Science and Technology Equal Opportunity Act. Executive
orders that prohibit employment discrimination by private employers, state and local
governments, federal agencies, federal contractors, registered apprenticeship programs,
and recipients of federal contractors, registered apprenticeship programs, and recipients
of federal funding are covered. The Migrant and Seasonal Agricultural Workers
Protection Act, which prohibits discriminatory farm labor contractor practices, is
covered, as is the Family and Medical Leave Act of 1993 and the Drug-Free Workplace
Act of 1988. Other laws that incidentally restrict discrimination against employees (such
as the Export Administration Act, which forbids discrimination on the basis of an
employee's refusal to participate in a foreign boycott, the Jury System Improvement Act,
which prohibits discrimination on account of jury service, the Employee Polygraph
Protection Act, which regulates the employment-related uses of polygraph tests, and the
Federal Election Campaign Act, which prohibits discrimination on the basis of campaign
contributions) are also mentioned. (See "Federal Legislation," infra, for USCS citations.
As to federal taxation relating to the topic, see "Tax References," infra.)
Treated Elsewhere:
Laws restricting right of aliens to work, see 3A Am Jur 2d, Aliens and Citizens
Prohibition of Consumer Credit Protection Act on discharge due to garnishment, see 6
Am Jur 2d, Attachment and Garnishment
Discrimination on the basis of race, creed, sex, or national origin, generally, see 15 Am
Jur 2d, Civil Rights
Discrimination on the basis of union membership, unfair labor practices, child labor laws,
and laws encouraging the training of disadvantaged individuals, see 48, 48A Am Jur 2d,
Labor and Labor Relations
Peonage, see 45 Am Jur 2d, Involuntary Servitude and Peonage
Employment at will and unjust discharge, see 53 Am Jur 2d, Master and Servant
Copyright 1998, West Group
Freedom of Information Act and Privacy Act requests directed to employment practices
agencies, see 66 Am Jur 2d, Records and Recording Laws
Employment rights of veterans, see 77 Am Jur 2d, Veterans and Veterans' Laws
RESEARCH REFERENCES
Text References:
Modjeska, Handling Employment Discrimination Cases
Employment Coordinator
Employment Discrimination Coordinator
Annotation References:
ALR Digests: Civil Rights 39, 51-73
ALR Index: Age Discrimination; Civil Rights and Discrimination; Civil Service;
Discharge From Employment or Office; Equal Pay Act; Homosexuality; Labor and
Employment; Sex Discrimination; Sexual Harassment
Practice References:
5A Am Jur Pl & Pr Forms (Rev), Civil Rights ; 16 Am Jur Pl & Pr Forms (Rev), Labor
and Labor Relations ; 19A Am Jur Pl & Pr Forms (Rev), Physicians, Surgeons, and
Other Healers
2 Am Jur POF2d 237, Racial Discrimination in EmploymentTesting and Education
Requirements; 2 Am Jur POF2d 549, Racial Discrimination in Employment (In General;
Use of Statistics); 3 Am Jur POF2d 221, Racial Discrimination in
EmploymentRecruiting and Hiring Practices; 7 Am Jur POF2d 1, Retaliatory
Termination of Private Employment; 7 Am Jur POF2d 87, Forced Resignation; 10 Am
Jur POF2d 1, Discrimination under Age Discrimination in Employment Act; 11 Am Jur
POF2d 679, Reduction or Mitigation of DamagesEmployment Contract; 12 Am Jur
POF2d 49, "Business Necessity" Justifying Prima Facie Discriminatory Employment
Practice; 12 Am Jur POF2d 645, Sex Discrimination in EmploymentPromotion
Practices; 15 Am Jur POF2d 481, Age as bona fide occupational qualification under
ADEA; 33 Am Jur POF2d 71, Employer's Discriminatory Appearance Code; 36 Am Jur
POF2d 249, Discrimination Against the Obese
21 Am Jur Trials 1, Employment Discrimination Action Under Federal Civil Rights
Acts; 21 Am Jur Trials 625, Preparation and Trial of Federal Class Actions; 29 Am Jur
Trials 1, Age Discrimination in Employment Action under ADEA
1 Federal Procedure L Ed, Access to District Courts 1:624 et seq.; 2 Federal
Procedure, L Ed, Administrative Procedure 2:213 et seq.; 2 Federal Procedure, L Ed,
Appeal, Certiorari, and Review 3:394 et seq.; 6 Federal Procedure, L Ed, Civil Rights
11:101 et seq.; 10 Federal Procedure L Ed, Discovery and Depositions 26:66 et
seq.; 16 Federal Procedure, L Ed, Government Officers and Employees 40:507 et
seq.; 21 Federal Procedure, L Ed, Judgments and Orders 51:188 et seq., 51:212 et
seq.; 26 Federal Procedure, L Ed, Parties 59:1-59:26, 59:255 et seq.; 28 Federal
Procedure, L Ed, Process, 65:1 et seq.; 33 Federal Procedure, L Ed, Trial
77:1-77:9; 33 Federal Procedure, L Ed, Witnesses 80:206 et seq.; 12 Federal
Procedure, L Ed, Evidence 33:23 et seq., 33:217 et seq.; 33 Federal Procedure, L Ed,
Trial 77:1, 77:191 et seq.
1 Federal Procedural Forms, L Ed, Actions in District Court 1:278; 10 Federal
Procedural Forms, L Ed, Government Officers and Employees 35:1 et seq.; 12
Federal Procedural Forms, L Ed, Job Discrimination, 45:1 et seq.
Federal Legislation:
2 USCS 1201 et seq. (Government Employee Rights Act)
29 USCS 206 (Equal Pay Act)
29 USCS 621 et seq. (Age Discrimination in Employment Act)
29 USCS 1801 et seq. (Migrant and Seasonal Agricultural Worker Protection Act)
29 USCS 2001 et seq. (Employee Polygraph Protection Act)
29 USCS 2601 et seq. (Family and Medical Leave Act of 1993)
42 USCS 1885 et seq. (Science and Technology Equal Opportunities Act)
42 USCS 1981 et seq. (1866 and 1871 Civil Rights Acts)
42 USCS 2000e et seq. (Title VII of Civil Rights Act of 1964)
42 USCS 12111 et seq. (Americans With Disabilities Act)
P.L. 102-166, 105 (Civil Rights Act of 1991)
Administrative Rules and Regulations:
5 CFR Part 1201 (Merit Systems Protection Board)
29 CFR Part 1600 et seq. (Equal Employment Opportunity Commission)
41 CFR Chapter 60 (Office of Federal Contract Compliance Programs)
Tax References:
RIA Federal Tax Coordinator 2d J-5801 et seq. (taxability of award of backpay and
damages under Title VII and similar laws)
Insta-Cite(R):
Cases and annotations referred to herein can be further researched through the
Insta-Cite(R) citation verification service. Use Insta-Cite to check citations for Bluebook
styling, parallel references, prior and later history, and annotation references.
I. GOVERNING LAWS, IN GENERAL [1-35]

A. Title VII [1-5]
Research References
42 USCS 2000e, 2000e-2, 2000e-4, 2000e-5(a), 2000e-7, 2000e-11, 2000e-16,
2000h-4
ALR Digest, Civil Rights 39
ALR Index, Age Discrimination; Civil Rights and Discrimination; Civil Service;
Discharge From Employment or Office; Equal Pay Act; Labor and Employment; Sex
Discrimination
21 Am Jur Trials 1, Employment Discrimination Action Under Federal Civil Rights Acts
15 et seq.
Employment Coordinator EP-10,601 et seq.
1 Generally
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The main federal statute prohibiting job discrimination is Title VII of the Civil Rights
Act of 1964. Title VII forbids employment discrimination against applicants and
employees on the basis of race or color, 1 religion, 2 sex, pregnancy, 3 and national
origin, 4 by employers, 5 including state governments and their political subdivisions
and agencies, 6 and the federal government, 7 employment agencies, 8 labor
organizations, 9 and joint labor-management committees and other training programs.
10
Title VII also prohibits forcibly resisting the EEOC or its representatives in the
performance of their official duties, 11 and coercive practices by unions designed to
cause an employer to engage in unlawful discrimination. 12
However, Title VII does not apply to discrimination in nonemployment matters, 13
and, since the statute's antidiscrimination provisions are limited to employment actions
based on race, color, religion, sex, and national origin, it does not extend to
discrimination based on other factors. 14
For example, Title VII does not prohibit
discrimination based solely on the factor of:
citizenship or alienage; 15
nepotism; 16
alcoholism; 17
effeminacy in men; 18
postemployment "blacklisting". 19
The specific application of Title VII to particular employment situations, like hiring, 20
discharge, 21 and other terms and conditions of employment 22 are discussed in the
context of those situations. In addition, Title VII's application to claims of discrimination
in compensation, including the differences in bringing a compensation claim under Title
VII and the Equal Pay Act, is discussed elsewhere. 23
Discrimination prohibitions applicable solely to labor organizations, 24 employment
agencies or joint labor-management committees 25 are also treated elsewhere.
State aspects: Every state regulates employment, not only through laws prohibiting
discriminatory practices, but also through legislation that governs conduct in the
employment context under a variety of circumstances. 26
1 ----Generally [SUPPLEMENT]
Practice Aids: Retroactivity of the Civil Rights Act of 1991, 24 Hofstra LR 2:541
(1996).
An idea whose time has come: A comparative procedural history of the Civil Rights Acts
of 1960, 1964, and 1991, 104 Yale LJ 5:1201 (1995).
Statutes:
2 USCS 1302, enacted as part of the Congressional Accountability Act of 1995,
provides that certain laws are applicable to the legislative branch of the federal
government, including Title VII of the Civil Rights Act of 1964. (2 USCS 1311)
provides for the specific rights and protection under the Act.
Case authorities:
Title VII does not authorize private right of action against supervisory employee in his or
her official or individual capacity. Bonner v Guccione (1996, SD NY) 916 F Supp 271,
70 BNA FEP Cas 148, 67 CCH EPD 43889.
42 USCS 2000e-2(m), which provides that unlawful employment practice is
established when complaining party demonstrates that race, color, religion, sex or
national origin was motivating factor for any employment practice, even though other
factors also motivated practice, and which was added by Civil Rights Act of 1991, is not
to be applied retroactively. Hook v Ernst & Young (1994, CA3 Pa) 28 F3d 366, 65 BNA
FEP Cas 261.
Civil Rights Act of 1991 would not be applied retroactively to claims pending before trial
court at time of enactment. Mojica v Gannett Co. (1993, CA7 Ill) 7 F3d 552, 62 BNA
FEP Cas 1561, 62 CCH EPD 42577, petition for certiorari filed (Oct 28, 1993).
Purpose of Title VII is not simply to eliminate appearance of gender inequality, but also
to eradicate discriminatory treatment based on gender; thus, mere appearance of gender
neutrality does not negate court's finding that defendant engaged in gender
discrimination. EEOC v Farmer Bros. Co. (1994, CA9 Cal) 31 F3d 891, 94 CDOS 5967,
94 Daily Journal DAR 10869, 65 BNA FEP Cas 857.
Purpose of Title VII is not simply to eliminate appearance of gender inequality, but also
to eradicate discriminatory treatment based on gender; thus, mere appearance of gender
neutrality does not negate court's finding that defendant engaged in gender
discrimination. EEOC v Farmer Bros. Co. (1994, CA9 Cal) 31 F3d 891, 94 CDOS 5967,
94 Daily Journal DAR 10869, 65 BNA FEP Cas 857.
Title VII does not completely preempt state law; rather, it only preempts state law that is
inconsistent with it. Rains v Criterion Sys. (1996, CA9 Cal) 80 F3d 339, 96 CDOS 2009,
96 Daily Journal DAR 3405, 70 BNA FEP Cas 635, 11 BNA IER Cas 936.
Broad and inclusive language of mandatory arbitration provision contained in Title VII
plaintiff's employment application mandated dismissal of her Title VII court action,
despite plaintiff's contentions that arbitration provision was invalid, that she did not
realize that she would have to arbitrate sexual harassment claims when she signed
application, that she would be denied her constitutional right to trial by jury if forced to
arbitrate her dispute, and that such provision frustrates policies underlying Title VII.
Didonato v A.G. Edwards & Sons (1994, ND Cal) 65 BNA FEP Cas 1207.
Civil Rights Act of 1991 expanded remedies available to testers under Title VII, but it
cannot be applied retroactively; thus, testers who had been denied referrals by
employment agency prior to effective date of 1991 Act, could not recover damages. Fair
Employment Council v BMC Mktg. Corp. (1994, App DC) 28 F3d 1268, 65 BNA FEP
Cas 512.
Free Exercise Clause of First Amendment exempts selection of clergy from Title VII, and
as consequence, precludes civil courts from adjudicating employment discrimination
suits by ministers against church or religious institution employing them. EEOC v
Catholic Univ. of Am. (1996, App DC) 83 F3d 455, 70 BNA FEP Cas 1230.
Fact that optional state procedures are not part of Title VII deferral and referral
enforcement scheme, making fee awards inappropriate, does not deter claimants from
asserting their rights at state level by resort to FEP agency. Duello v Board of Regents of
Univ. of Wis. Sys. (1993) 176 Wis 2d 961, 501 NW2d 38, 62 BNA FEP Cas 665.
As general principle, Wisconsin courts look to federal decisions interpreting Title VII of
Civil Rights Act for guidance in applying state employment law. Moore v Labor & Indus.
Review Comm'n (1993, App) 175 Wis 2d 561, 499 NW2d 288.
District court did not have jurisdiction pursuant to Title VII over action which sought
damages based on EEOC's alleged failure to investigate charge filed with it by plaintiff
against his former employer, since Title VII does not provide right to general remedy
against EEOC, and neither EEOC nor individual named defendants were employers of
plaintiff at any time. Materson v Stokes (1996, ED Va) 166 FRD 368, 70 BNA FEP Cas
1630.
In academic discrimination cases involving tenure, postsecondary institutions have no
special dispensation from requirements of Title VII, and courts will not subject
institutions to more deferential standard of review or lesser obligation to repair adverse
effects of discrimination; thus, Title VII plaintiff does not have to meet higher standard in
such cases. Schneider v Northwestern Univ. (1996, ND Ill) 925 F Supp 1347, 70 BNA
FEP Cas 1568.
Footnotes
Footnote 1. 123 et seq.
Footnote 5. 42 USCS 2000e-2(a).
Footnote 6. 42 USCS 2000e(a), (b).
Footnote 8. 42 USCS 2000e-2(b).

Footnote 9. 42 USCS 2000e-2(c).
Footnote 10. 42 USCS 2000e-2(d).
Footnote 13. Novotny v Great American Federal Sav. & Loan Asso. (1978, CA3) 584
F2d 1235, 17 BNA FEP Cas 1252, 17 CCH EPD 8576, vacated on other grounds 442
US 366, 60 L Ed 2d 957, 99 S Ct 2345, 19 BNA FEP Cas 1482, 20 CCH EPD 30004.
Footnote 14. Capers v Long Island Railroad (1977, SD NY) 429 F Supp 1359, 14 BNA
FEP Cas 1560, 14 CCH EPD 7643, affd without op (CA2) 573 F2d 1291, 20 BNA FEP
Cas 1545.
Annotation: Validity, construction, and application of provisions of Title VII of Civil
Rights Act of 1964 (42 USCS 2000e et seq.) and implementing regulations, making
religious discrimination in employment unlawful, 22 ALR Fed 580.
Construction and application of provisions of Title VII of Civil Rights Act of 1964 (42
USCS 2000e et seq.) making sex discrimination in employment unlawful, 12 ALR
Fed 15.
Refusal to hire, or dismissal from employment, on account of plaintiff's sexual lifestyle
or sexual preference as violation of Federal Constitution or federal civil rights statutes,
42 ALR Fed 189.
Footnote 15. Espinoza v Farah Mfg Co. (1973) 414 US 86, 38 L Ed 2d 287, 94 S Ct
334, 6 BNA FEP Cas 933, 6 CCH EPD 8944.
Citizenship or alienage as a basis of discrimination is discussed, generally, at 156 et
seq.
Footnote 16. Sogluizzo v International Brotherhood of Teamsters (1981, SD NY) 514 F
Supp 277, 28 BNA FEP Cas 534.
Nepotism as a basis of discrimination is discussed, generally, at 531 et seq.
Footnote 17. King v Seaboard C.L.R. Co. (1976, CA4) 538 F2d 581, 13 BNA FEP Cas
122, 11 CCH EPD 10877.
Footnote 18. Smith v Liberty Mut. Ins. Co. (1975, ND Ga) 395 F Supp 1098, 11 BNA
FEP Cas 741, 10 CCH EPD 10429, affd (CA5) 569 F2d 325, 17 BNA FEP Cas 28, 16
CCH EPD 8178.
Footnote 19. Ferguson v Mobil Oil Corp. (1978, SD NY) 443 F Supp 1334, 19 BNA FEP
Cas 357, 16 CCH EPD 8135, dismd (SD NY) 20 BNA FEP Cas 1677, 18 CCH EPD
8660, affd without op (CA2) 607 F2d 995, 20 BNA FEP Cas 1691, 24 CCH EPD
31278.
Footnote 26. For a discussion of such laws, see Employment Coordinator EP-10,601 et
seq.
2 Statutory exceptions to Title VII prohibitions

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Title VII specifically permits any entity covered by the act to discriminate against
individuals:
on the basis of religion, sex, or national origin if based on a bona fide occupational
qualification; 27
on the basis of nonfulfillment of national security requirements. 28
Furthermore, an employer covered by the Act may:
apply different standards of compensation 29 or different terms, conditions, or
privileges of employment pursuant to a bona fide seniority 30 or merit system, or
system that measures earnings by quantity or quality of production, or to employees who
work in different locations; 31
differentiate based on sex in determining compensation if authorized by the Equal Pay
Act defenses; 32
give and act on the results of a professionally developed ability test. 33
Title VII also permits covered entities to act in good faith conformity with and reliance
on a written interpretation or opinion of the EEOC, 34 and to abide by federal, state,
territorial or local law creating special rights or preference for veterans. 35
State aspects: A majority of the states have enacted fair employment practices (FEP)
statutes that parallel, and in some instances even exceed, the scope and effect of Title
VII's prohibitions. Title VII does not pre-empt state or local job discrimination laws,
but expressly preserves them as long as they do not purport to require or permit the
doing of any act which would be an unlawful employment practice under Title VII. 36
Thus, Congress did not intend Title VII to "occupy the field" to the exclusion of state
laws on the same subject matter. 37 Given this narrow scope of preemption, Title
VII does not prevent states from extending their nondiscrimination laws to areas not
covered by it, because Title VII is neutral on the subject of all employment practices it
does not prohibit. 38
These statutory pre-emption provisions indicate the
importance that Congress has attached to state antidiscrimination laws in achieving
Title VII's goal of equal employment opportunity. 39
2 ----Statutory exceptions to Title VII prohibitions [SUPPLEMENT]
Case authorities:
Congress intended personal staff exception to Title VII to be construed narrowly.
Johnson v Board of County Comm'rs (1994, DC Colo) 65 BNA FEP Cas 1073.
Deputy sheriff was not member of sheriff's personal staff, since deputy did not have
intimate employment relationship with sheriff, and there was no indication that deputy
represented sheriff in eyes of public; mere fact that sheriff had exclusive power to hire
and fire deputy did not establish intimate and personal employment relationship tha t is
necessary between elected official and his personal staff. Johnson v Board of County
Comm'rs (1994, DC Colo) 65 BNA FEP Cas 1073.
Dispatchers were not members of sheriff's personal staff, since they did not have intimate
employment relationship with sheriff, and there was no indication that they represented
sheriff in eyes of public; mere fact that sheriff had exclusive power to hire and fire
dispatchers did not establish intimate and personal employment relationship tha t is
necessary between elected official and his personal staff. Johnson v Board of County
Comm'rs (1994, DC Colo) 65 BNA FEP Cas 1073.
Footnotes
Footnote 27. 42 USCS 2000e-2(e), discussed at 269 et seq.
Footnote 28. 42 USCS 2000e-2(g), discussed at 287 et seq.
Footnote 29. For a discussion of wage and salary discrimination, generally, see 725 et
seq.
Footnote 30. For a discussion of the effect of seniority systems on terms and conditions
of employment, generally, see 706 et seq.
Footnote 31. 42 USCS 2000e- 2(h).
Footnote 32. 42 USCS 2000e-2(h).

For a discussion of performance and other exceptions related to job qualifications, see
287 et seq.
For material concerning reliance on administrative guidelines, generally, see 297 et
seq.
Footnote 35. 42 USCS 2000e-11.
For a discussion of nondiscriminatory preferences and conduct, generally, see 291 et
seq.
Footnote 37. 42 USCS 2000h-4.
Footnote 38. Shaw v Delta Air Lines, Inc. (1983) 463 US 85, 77 L Ed 2d 490, 103 S Ct
2890, 4 EBC 1593, 32 BNA FEP Cas 121, 32 CCH EPD 33679.
Footnote 39. California Federal Sav. & Loan Asso. v Guerra (1987, US) 93 L Ed 2d 613,
107 S Ct 683, 7 EBC 2657, 42 BNA FEP Cas 1073, 41 CCH EPD 36641.
3 Administration of Title VII

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Title VII is administered and enforced by the Equal Employment Opportunity
Commission, 40 which has extensive powers to receive and process discrimination
charges, to enforce the Act's recordkeeping and notice-posting requirements, 41 and to
prevent any person from engaging in any unlawful employment practice. 42
Footnotes
Footnote 41. For a discussion of the structure of the EEOC, generally, see 1206 et
seq.
Practice References Class nature of Title VII violations. 21 Am Jur Trials 1,
Employment Discrimination Action Under Federal Civil Rights Acts 15 et seq.
4 Title VII's relationship to other federal job discrimination laws

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Title VII is only one of several federal statutes that prohibit discrimination in
employment. For example, 42 USCS 1981 also prohibits race discrimination in the
making, performance, modification, and termination of contracts, as well as the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship. 43 These statutes may afford broader remedies than Title VII, 44 and
there may be other concerns, especially considerations pertinent to filing a court action,
45 that make it necessary or advantageous to forego a Title VII action in favor of suing
under another statute.
4 ----Title VII's relationship to other federal job discrimination laws
[SUPPLEMENT]
Practice Aids: What constitutes constructive discharge of employee due to sex
discrimination so as to violate Title VII of Civil Rights Act of 1964 (42 USCS
2000e-2). 116 ALR Fed 1.
What constitutes sex discrimination in termination of employee so as to violate Title VII
of Civil Rights Act of 1964 (42 USCS 2000e et seq.). 115 ALR Fed 1.
Case authorities:
Title VII plaintiff is not precluded from bringing concurrent 42 USCS 1983 cause of
action, so long as 1983 claim is based on distinct violation of constitutional right.
Gierlinger v New York State Police (1994, CA2 NY) 15 F3d 32, 63 CCH EPD 42826.
EEOC's interpretation of Title VII and its terms is entitled to great deference from courts.
Ford v Bernard Fineson Dev. Ctr. (1996, CA2) 81 F3d 304, 70 BNA FEP Cas 825.
Public sector employee cannot bypass Title VII by bringing employment discrimination
case exclusively under 42 USCS 1983 and 1985. Annis v County of Westchester
(1993, SD NY) 63 BNA FEP Cas 996.
Plaintiff can only bring concurrent Title VII and 42 USCS 1983 claims where claims
are based on distinct legal rights (i.e. Title VII claim precludes 1983 claim unless
1983 claim is based on alleged violation of some law other than Title VII). Igielnik v
NYC Human Resources Admin. (1996, SD NY) 70 BNA FEP Cas 1045.
Provisions of Civil Rights Act of 1991 for trial by jury to recover compensatory and
punitive damages do not make Title VII exclusive remedy for claims of employment
discrimination brought by public employees. Beardsley v Webb (1994, CA4 Va) 65 BNA
FEP Cas 696.

Individual alleging employment-related discrimination may not proceed with private
cause of action under Title IX of Education Amendments of 1982 (20 USCS 1681 et
seq.), because Title IX is preempted by Title VII of Civil Rights Act of 1964 (42 USCS
2000e et seq.). Wedding v University of Toledo (1994, ND Ohio) 862 F Supp 201, 65
BNA FEP Cas 1478.
Civil Rights Act of 1991 does not demonstrate congressional intent to make Title VII
exclusive remedy for claims of employment discrimination brought by public employees;
thus, public employees are not precluded from bringing suit under 42 USCS 1983.
Stoner v Department of Agric., Trade & Consumer Protection (1994, WD Wis) 846 F
Title VII does not displace application of 42 USCS 1981 in claims for employment
discrimination. Arnett v Davis County Sch. Dist. (1993, DC Utah) 62 BNA FEP Cas
1184.
Civil Rights Act of 1991 applies to Title VII action commenced after its effective date,
even though allegedly discriminatory conduct occurred prior to such effective date.
Perkins v School Bd. (1993, MD Fla) 152 FRD 227, 7 FLW Fed D 625.
Plaintiff's implied private right of action under 504 of Rehabilitation Act (29 USCS
794) does not qualify as comprehensive remedial scheme which precludes plaintiff from
also basing his 504 claim on 42 USCS 1983. Penney v Town of Middleton (1994,
DC NH) 8 ADD 1321.
Footnotes
Footnote 43. For a general discussion of the early civil rights acts and their relationship
to other anti-discrimination laws, see 6 et seq.
5 Title VII's relationship to other federal labor laws

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When enforcement of Title VII potentially threatens the goal of industrial stability under
other federal labor laws, then Title VII may have to yield to those laws. For example, a
black employee could not bring a Title VII suit against the employer for implementing an
arbitrator's final decision which ordered the reinstatement of a white employee but not of
a white employee although both employees were discharged for fighting. The suit would
have put the employer in the untenable position of having to defend against a Title VII
action for simply implementing the arbitrator's decision and award pursuant to a
collective bargaining agreement. Instead, the employee's remedies were limited to those
under the Labor Management Relations Act or the Federal Arbitration Act. 46
5 ----Title VII's relationship to other federal labor laws [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Case authorities:
Plaintiff can only bring concurrent Title VII (42 USCS 2000e et seq.) and 42 USCS
1983 claims where claims are based on distinct legal rights (i.e. Title VII claim precludes
1983 claim unless 1983 claim is based on alleged violation of some law other than
Title VII). Igielnik v NYC Human Resources Admin. (1996, SD NY) 70 BNA FEP Cas
1045.
Union did not have standing to bring Title VII action on behalf of black job applicants
who were allegedly discriminated against in hiring, and who but for alleged
discrimination might have become members of union, despite union's assertion that it had
legitimate institutional interest in combatting employment discrimination in industries
where its jurisdiction extended, since such broad institutional goals cannot serve as basis
for standing. Amalgamated Clothing & Textile Workers Union v BRLR, Inc. (1993, MD
NC) 63 BNA FEP Cas 468.
Footnotes
Footnote 46. Wynn v North American Systems, Inc. (1984, ND Ohio) 608 F Supp 30, 34
BNA FEP Cas 1869, 36 CCH EPD 35041.
B. Early Civil Rights Acts [6-15]
Research References
42 USCS 1981, 1983, 1985
Discrimination
9
Modjeska, Employment Discrimination (2d ed) 3:1 et seq.
6 Generally
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The 1866 and 1871 Civil Rights Acts, otherwise known as 1981, 1983, and 1985, are
often referred to as the early civil rights acts and may be used to assert employment
discrimination claims under certain circumstances. The first section of the 1866 Civil
Rights Act guarantees all persons within the jurisdiction of the United States the same
right in every state and territory to make and enforce contracts, and to the full and equal
benefit of all laws and proceedings for the security of persons and property, as is enjoyed
by white persons. 47
Observation: The pertinent provisions of 1981 with respect to job discrimination

are those guaranteeing all persons the right to make and enforce contracts, which
include employment contracts. 48
Practice Aids: Affirmative action and the Civil Rights Act of 1991, 44 Lab LJ 615
(1993).
What constitutes constructive discharge of employee due to sex discrimination so as to
violate Title VII of Civil Rights Act of 1964 (42 USCS 2000e-2). 116 ALR Fed 1.
Case authorities:
Black female employees who claimed that they were refused promotion or fired because
they were black stated claim under 42 USCS 1981, where they also alleged that
employer purposefully excluded blacks from top-level positions, that most management
positions are filled by whites, that pregnant white women were treated better than
pregnant black women, and that discrimination took place in 1991 or later, because
women alleged that they were black, that they were qualified for their jobs, and that
non-blacks were treated more favorably; 1991 amendments extended 1981 protection,
but amendments are not retroactive. Hicks v Arthur (1994, ED Pa) 843 F Supp 949.
42 USCS 2000e-2(m), which creates new framework for analyzing mixed-motive
discrimination claims, is not to be applied retroactively. Chenault v United States Postal
Serv. (1994, CA9 Or) 37 F3d 535, 7 ADD 135, 94 CDOS 7673, 94 Daily Journal DAR
14074, 3 AD Cas 1185.
42 USCS 1981(b) did not apply retroactively to action pending at time of its
enactment. Simons v Southwest Petro-Chem (1994, CA10 Kan) 28 F3d 1029, 65 BNA
FEP Cas 485.
African-American former employee's racial harassment and discharge claims under 42

USCS 1981 must be dismissed, where complaint was filed after Civil Rights Act of
1991 became law but was based on conduct that occurred before Act became law,
because 1981 amendments under Act will not be applied retroactively and
preamendment version of statute did not cover conduct complained of. Wiggins v Philip
Morris, Inc. (1994, DC Dist Col) 853 F Supp 458.
Title VII does not expressly or impliedly allow individual to bring suit against EEOC for
its disposition or handling of discrimination claim against third party employer. Neptune
v Burlington County College (1993, ED Pa) 66 BNA FEP Cas 897.
Footnotes
Footnote 47. 42 USCS 1981.
Practice References Modjeska, Employment Discrimination (2d ed 3:1 et seq.
Footnote 48. For a general discussion of what employment situations are encompassed by
1981, see 7.
7 What employment situations are encompassed by 1981

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As amended by the Civil Rights Act of 1991, 49 1981 expressly provides that the right
to be free from racial discrimination in the making and enforcement of contracts is
protected against impairment by governmental and nongovernmental discrimination. 50
Even before it was amended by the Civil Rights Act of 1991, 1981 had been interpreted
by the Supreme Court to apply to private action, whether it was in the context of
education 51
or employment. 52
The amendment is intended to codify Runyon and,
to the extent it affirms Runyon, Patterson, including their implied holdings that 1981
covers private as well as public entities' discriminatory actions in contractual
relationships. 53
As amended by the Civil Rights Act of 1991, 1981 also encompasses the making,
performance, modification, and termination of contracts, as well as the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship. 54 The
amendment supersedes 55 the Supreme Court's ruling in Patterson, that the application
of 1981 was limited in the employment context to hiring and promotion decisions that
involved the formation of new contracts, and did not reach breaches of contracts or other
postformation conduct, or were unrelated to the right to seek legal enforcement of the
right to form contracts. 56
Under Patterson 1981 had been construed to prohibit not only racially motivated
refusals to enter into contracts, but also offers to enter into contracts only on
discriminatory terms. 57 However, the fact that an employer, after contract formation,
revealed its prior intent to contract on a discriminatory basis, did not bring the matter
within the ambit of the statute. 58 Furthermore, evidence of postcontract conduct
indicating a policy of discrimination could not support a 1981 claim after Patterson.
The employment contract for blacks must have contained explicit different terms from
those of white employees in order to proceed under 1981. 59
The application of 1981 to claims alleging retaliatory discharge is discussed elsewhere.
60
7 ----What employment situations are encompassed by 1981 [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Case authorities:
Caucasian executive's 1981 race discrimination claim against Japanese corporation
must fail, where 1981(b) will not be applied retroactively to conduct which occurred
prior to its enactment, because (1) discriminatory discharge, breach of employment
contract, discriminatory working conditions, and harassment are all post-formation
contract-related claims not covered by pre-amendment 1981, and (2) allegation that he
was moved to different position and that executive rival assumed responsibilities of his
prior position fails to set forth proper "promotion" claim under 1981. Bermingham v
Sony Corp. of Am. (1993, DC NJ) 820 F Supp 834.
Certified public accountant, not renewed after end of one-year term with RTC, has no
viable 42 USCS 1981 claim, where claim is not in her pro se complaint, and only
argument on this point comes in one sentence and footnote, because, in any case, 1981
does not apply to federal government. Carlton v Ryan (1996, ND Ill) 916 F Supp 832, 68
CCH EPD 44075.
African-American welder's 42 USCS 1981 claim against former employer must fail,
even though he was company's only black employee and he presented allegations of
several incidents of racial harassment on job, where claim is predicated solely on events
which occurred before November 13, 1991, because Supreme Court recently held that
Civil Rights Act of 1991 cannot be retroactively applied in 1981 cases, and pre-Act
version of statute does not cover post-formation conduct involving performance of
established contract obligations, but only right to "make or enforce" contract. Bernhard v
Doskocil Cos. (1994, DC Kan) 861 F Supp 1006, 3 AD Cas 1044.
Footnotes
Footnote 49. P.L. 102-166 101(2).
Law Reviews: Blevins; Schroedter, The Civil Rights Act of 1991: Congress revamps
employment discrimination law and policy. 10 Ill. B.J. 336 (1992).
Footnote 50. 42 USCS 1981(c).
Footnote 51. Runyon v McCrary (1976) 427 US 160, 49 L Ed 2d 415, 96 S Ct 2586.
Law Reviews: Modjeska, Employment Discrimination and the Reconsideration of
Runyon [Runyon v. McCrary, 96 S. Ct. 2586]. 78 Ky. L.J. 377 (1989/1990).
Footnote 52. Patterson v McLean Credit Union (1989) 491 US 164, 105 L Ed 2d 132,
109 S Ct 2363, 49 BNA FEP Cas 1814, 50 CCH EPD 39066.
Footnote 53. H Rept No. 102-40, Part 2, 5/17/91, p. 37.
Footnote 54. 42 USCS 1981(b).
Footnote 55. S Rept No. 101-315, 6/8/90, pp. 6, 58.
Footnote 57. Gonzalez v Home Ins. Co. (1990, CA2) 909 F2d 716, 53 BNA FEP Cas
862, 54 CCH EPD 40128
Footnote 58. Dangerfield v Mission Press (1989, ND Ill) 50 BNA FEP Cas 1171.
Footnote 59. West v First Pennsylvania Bank, N.A. (1990, ED Pa) 1990 US Dist LEXIS
9339.
8 What types of discrimination are prohibited under 1981

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Primarily because of its reference to "white citizens", 61 1981 is construed as
prohibiting race discrimination in private employment. 62 Some courts have held that
the statute affords relief only in racial discrimination cases, 63
while a few others
have held that 1981 also bars discrimination on the basis of alienage. 64
However, in a nonemployment case, the Fifth Circuit has held that 1981 does not
prohibit private discrimination based on alienage. 65
Observation: Section 1981 has sometimes been applied to discrimination claims by

ethnic groups that are commonly viewed as races. 66

Section 1981, however, does not prohibit employment discrimination based on sex,
religion, 67
age, 68 or political influence. 69 Nevertheless, Jews can claim race
discrimination under 1981 though not obtain a remedy for religious discrimination. 70
State aspects: There is a "custom or official policy" requirement under 42 USCS

1981, like the one imposed under 1983, 71 for purposes of establishing a local
government employer's liability for acts of its employees. Thus, a local government
cannot be held responsible for violations of 1981 by its employees under a
respondeat superior theory. 72 While local governments and their officials can be
subject to monetary liability under 1981, 73 state governments enjoy immunity from
monetary liability under 1981 by virtue of the Eleventh Amendment to the
Constitution. 74
8 ----What types of discrimination are prohibited under 1981 [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Case authorities:
Terminated parole officer states no viable claim under 42 USCS 1981, where she
alleges that other employees of state department of criminal justice set her up for policy
violation in retaliation for her complaints about various policies and practices of
department, because 1981 addresses only intentional discrimination based on race or
color. Hockaday v Texas Dep't of Criminal Justice (1996, SD Tex) 914 F Supp 1439.
Racial harassment and discriminatory discharge claims under 42 USCS 1981 were
properly dismissed, where alleged violations occurred before effective date of
amendment to 1981 specifying that all phases of any contractual relationship rather
than just its initiation were covered by 1981. Jeffries v Metro-Mark, Inc. (1995, CA8
Minn) 45 F3d 258, 66 BNA FEP Cas 1316, reh, en banc, den (1995, CA8) 1995 US App
LEXIS 3367.
42 USCS 1981 does not confer cause of action on persons whose injuries derive only
from violation of others' rights. Fair Employment Council v BMC Mktg. Corp. (1994,
App DC) 28 F3d 1268, 65 BNA FEP Cas 512.
All claims of sex and reprisal discrimination in violation of 42 USCS 1981 are
dismissed, where correctional officer alleges that he applied for and was denied
promotion to more than 100 DS-12 positions for which he was most qualified applicant,
because claims of sex and reprisal discrimination are not actionable under 1981. Webb
v District of Columbia (1994, DC Dist Col) 864 F Supp 175.
Footnotes
Footnote 61. 6.
Footnote 63. Sixth CircuitVeres v County of Monroe (1973, ED Mich) 364 F Supp
1327, affd without op (CA6) 542 F2d 1177, cert den 431 US 969, 53 L Ed 2d 1065, 97
S Ct 2929.
Ninth CircuitArnold v Tiffany (1973, CD Cal) 359 F Supp 1034, affd (CA9) 487 F2d
216, cert den 415 US 984, 39 L Ed 2d 881, 94 S Ct 1578.
DC CircuitKurylas v U.S. Dept. of Agriculture (1974, DC Dist Col) 373 F Supp 1072,
7 BNA FEP Cas 207, 7 CCH EPD 9116, affd without op 169 App DC 58, 514 F2d 894,
Footnote 64. Third CircuitJones v United Gas Improvement Corp. (1975, ED Pa) 68
FRD 1, 12 BNA FEP Cas 344, 11 CCH EPD 10600.
Sixth CircuitTroy v Shell Oil Co. (1974, ED Mich) 378 F Supp 1042, 8 BNA FEP Cas
1044, app dismd as moot (CA6) 519 F2d 403, 10 BNA FEP Cas 1447, 10 CCH EPD
10332.
For a discussion of how to prove a discrimination claim under 1981, see 2699 et
seq.
Annotation: Applicability of 42 USCS 1981 to national origin employment
discrimination cases, 43 ALR Fed 103.
Footnote 65. Bhandari v First Nat. Bank of Commerce (1989, CA5) 887 F2d 609.
Footnote 66. For a general discussion of discrimination involving national origin,
ancestry, or citizenship, see 156 et seq.
Footnote 67. Runyon v McCrary (1976) 427 US 160, 49 L Ed 2d 415, 96 S Ct 2586,
later app (CA4) 569 F2d 1294, cert den 439 US 927, 58 L Ed 2d 320, 99 S Ct 311.
Footnote 68. Kodish v United Airlines, Inc. (1979, DC Colo) 463 F Supp 1245, 18 BNA
FEP Cas 1672, 19 CCH EPD 9045, affd (CA10) 628 F2d 1301, 23 BNA FEP Cas 1221,
24 CCH EPD 31218; Boddorff v Publicker Industries, Inc. (1980, ED Pa) 488 F Supp
1107, 25 BNA FEP Cas 1065.
Footnote 69. Woods v State (1979, SD NY) 469 F Supp 1127, affd without op (CA2) 614
F2d 1293.
Footnote 70. Sinai v New England Tel. & Tel. Co. (1990, DC Mass) 53 BNA FEP Cas
1883, 6 BNA IER Cas 56.
Footnote 71. 12.
Footnote 72. Jett v Dallas Independent School Dist. (1989, US) 105 L Ed 2d 598, 109 S
Ct 2702, 50 BNA FEP Cas 27, 50 CCH EPD 39070.
Footnote 73. Garner v Giarrusso (1978, CA5) 571 F2d 1330, 20 BNA FEP Cas 1314, 16
CCH EPD 8274.
Footnote 74. Henry v Texas Tech University (1979, ND Tex) 466 F Supp 141, 23 BNA
FEP Cas 406, 20 CCH EPD 30074.
For a discussion of governmental immunity under the constitution, see 2343 et seq.
9 Relationship between 1981 and Title VII

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Section 1981 was not superseded by Title VII. 75
Furthermore, 1981 cannot be
used by federal employees to assert discrimination that is prohibited under Title VII. 76
9 ----Relationship between 1981 and Title VII [SUPPLEMENT]
Practice Aids: The Civil Rights Act of 1991 and retroactivity: Do Landgraf v. USI
Film Products [ 128 LEd2d 229 (1994)] and Rivers v. Roadway Express, Inc. [ 128
LEd2d 274 (1994)] signify a new era of restrictive employment discrimination cases?
17 Am J Tr Advoc 773 (1994).
The Civil Rights Act of 1991 going forward, 20 Emp Rel LJ 2:237 (1994).
Resolving the retroactive application of the Civil Rights Act of 1991: Landgraf v. USI
Film Products , 45 Lab LJ 9:580 (1994).
Pretext and mixed motive after the 1991 act, 138 New Jersey LJ 14:11 (1995).
The Civil Rights Act of 1991, retroactivity, and continuing violations: The effect of
Landgraf v. USI Film Products and Rivers v. Roadway Express , 28 U Richmond LR
5:1363-1404 (1995).
The continuing evolution of affirmative action under title VII: New directions after the
Civil Rights Act of 1991, 81 Va LR 2:565 (1995).
The Civil Rights Act of 1991: A continuation of the Wards Cove [US (1989)] standard of
business necessity? 35 W & M LR 1177 (1994).

Case authorities:
Title VII plaintiff may plead and recover for Title VII race discrimination violation
pursuant to 42 USCS 1981a, if he has not, but could have, pled race discrimination
claim under 42 USCS 1981. Bradshaw v University of Maine Sys. (1994, DC Me) 870
F Supp 406, 66 BNA FEP Cas 806.
African-American male firefighter for City of Chicago may proceed with Title VII (42
USCS 2000e et seq.) and 42 USCS 1981 claims, where he complains of harassing
and retaliatory treatment in conjunction with 9-day suspension for "messing up
cloakroom" and "making obscene gestures" and aftermath of incident, because Congress
intended new 1981 to cover retaliation against employee for filing EEOC claim or
enforcing any other antidiscrimination statute, and alleged treatment occurred after
November 21, 1991, effective date of amendments. Adams v City of Chicago (1994, ND
Ill) 865 F Supp 445.
Alleged victim of sexual harassment and gender discrimination cannot plead cause of
action under 42 USCS 1981a separate and independent from her cause of action under
Title VII (42 USCS 2000e et seq.), even if conduct supporting claims occurred after
effective date of 1981a, because plain language of statute is clear that 1981a cannot
stand on its own but is wholly dependent on, and merely expands remedies available
under, Title VII. West v Boeing Co. (1994, DC Kan) 851 F Supp 395, 128 CCH LC
33097, motion den sub nom Sloan v Boeing Co. (1994, DC Kan) 1994 US Dist LEXIS
4799.
Footnotes
Footnote 75. Johnson v Railway Express Agency, Inc. (1975) 421 US 454, 44 L Ed 2d
295, 95 S Ct 1716, 10 BNA FEP Cas 817, 9 CCH EPD 10149.
Practice References Relative advantages and disadvantages of Title VII and Civil
Rights Act of 1866 as remedies for discrimination 21 Am Jur Trials 1, Employment
Discrimination Action Under Federal Civil Rights Acts 9.
Footnote 76. Brown v General Services Administration (1976) 425 US 820, 48 L Ed 2d
10 Section 1983's prohibitions

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The first section of the 1871 Civil Rights Act makes "every person" liable who, under
color of statute, ordinance, regulation, custom, or usage, subjects or causes to be

subjected any person within the jurisdiction of the United States to the deprivation of any
rights, privileges or immunities secured by the Constitution and laws. 77
United
States territories, such as the Territory of Guam, are not "persons" within the meaning of
1983. 78
Section 1983 itself establishes no substantive rights but is merely the vehicle for seeking
a federal remedy for violations of federally protected rights. The U.S. Constitution and
federal statutes define the substantive rights that may be asserted in a 1983 action. 79
Observation: Because 1983 establishes no rights of its own and all rights it
protects are derived from other statutes, the question arises as to whether claims may
be brought both under a discrimination statute directly and, at the same time, under
1983. 80
10 ----Section 1983's prohibitions [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Case authorities:
Civil rights claim of outspoken police union president must fail, where president
complains of new mayor's plotting conspiracy to fire him, but 5 days after alleged plot
president told newspaper mayor was "stupid" and "wrong" about foot patrol issue,
because there is no showing of either potential or actual deprivation or chilling of
president's First Amendment rights. Therrien v Hamilton (1994, DC Mass) 849 F Supp
110, summary op at (DC Mass) 22 M.L.W. 1726.
Demoted director of power authority's 1983 action against various employees of
authority must fail, where plaintiff alleges that defendants, motivated by political
discrimination, caused criminal investigation and prosecution to be initiated against him
in connection with solicitation and cashing of unearned and unauthorized mileage
benefits, because plaintiff failed to provide any evidence, or even to make any detailed
allegations, about any actions of defendants which were responsible for indictment
against him. Nazario-Velazquez v Del Valle (1994, DC Puerto Rico) 842 F Supp 602.
Court erred in dismissing pro se 42 USCS 1983 complaint of cable television producer
against cable television company, which complaint alleged that producer's program was
cancelled in violation of her constitutional rights, where issue remained as to whether
private federal cause of action could be implied from provisions of Cable
Communications Policy Act and Cable Television Consumer Protection and Competition
Act. Glendora v Cablevision Sys. Corp. (1995, CA2 NY) 45 F3d 36.
Bailiff's 1983 freedom-of-association/substantive-due-process claim survives against
judge, who fired bailiff allegedly for refusing to (1) work at polls on primary election day
and (2) contribute portion of his salary to Republican Party, because bailiff chose not to
participate in any political activities, as is his constitutional right, when he became
Jehovah's Witness, and whether political considerations motivated judge to terminate him
is for jury to decide. Kelly v Municipal Court (1994, SD Ind) 852 F Supp 724, 64 BNA
FEP Cas 1548.
City is enjoined from enforcing current policy concerning employees' political activity
and must rescind discipline imposed on police officers for violating policy, where policy
provisions entirely prohibit employees, without limitation or definition, from personally,
in individual capacity, "publicly" endorsing or voicing "public" support at "public
meetings" or "campaigning" for or against candidates for city elective office, because
former and current policies are unconstitutionally vague and overbroad, will significantly
compromise recognized First Amendment protections, and must be more narrowly drawn
to more specifically identify conduct which is legitimately prohibited for purpose of
maintaining orderly function of police force and other agencies. Ruff v City of
Leavenworth (1994, DC Kan) 858 F Supp 1546.
County probation officer who was discharged due to her marriage to county deputy
sheriff cannot prevail on her 1983 claim, because any infringement of fundamental
right to marry is outweighed by judge's objectively reasonable need to ensure proper and
just operation of probation office by avoidance of prejudice and conflicts of interest.
Rosenbarger v Shipman (1994, ND Ind) 857 F Supp 1282.
Civil rights claim of city police officers, who were disciplined and placed on probation
for drafting and placing newspaper advertisements endorsing nonincumbent candidates
for election to city commission, is not denied summarily, where officers allege that city's
personnel policy regarding political activity is unconstitutional as applied and vague and
overbroad on its face, because issue of fact exists as to whether city's interest in adequacy
and efficiency of its police services to community outweighs officers' right to comment
on city elections. Ruff v City of Leavenworth (1994, DC Kan) 854 F Supp 774.
Footnotes
Annotation: Action under Title VII of 1964 Civil Rights Act (42 USCS 2000e et
seq.) as precluding action under 42 uscs 1983 for employment discrimination by
state or local government, 78 ALR Fed 492.
Law Reviews: Brierton, Statutory Construction of Title VII and 42 U.S.C. 1983 in
Employment Discrimination Actions. 40 Lab. L.J. 158 (1989).
Footnote 78. Ngiraingas v Sanchez (1990, US) 109 L ED 2d 163, 110 S Ct 1737
Footnote 79. Greenwood v Ross (1985, CA8) 778 F2d 448, 38 CCH EPD 35770.
Footnote 80. As to the relationship between 1983 and federal job discrimination laws,
see 13.
The "state action" requirement of 1983 is discussed at 12, and the "custom and
official policy" requirement is also discussed at 12.
11 Section 1983's state action requirement

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The prohibitions of 1983 apply exclusively to actions of governmental entities, not
private individuals. 81 Thus, before a claim may be brought against a private entity, a
determination must be made of whether that entity's actions are attributable to the state.
The mere receipt of government funds does not make every act of a private employer
"state action" for the purposes of 1983 jurisdiction. 82
The factors to be examined in determining whether a private entity's acts constitute "state
action" under 1983 include: (1) the extent of any public funding, (2) the extent of any
public regulation, (3) whether traditional public functions have been performed or are
involved, and (4) whether a significant "symbiotic relationship" has existed between the
state and the private organization. 83
No one of these factors is alone sufficient to make a private entity's acts those of the state.
Rather, all circumstances must be examined. 84 For example, an employer's
performance of a public function under contract to the state, alone, is insufficient to find
that the employer is a state actor under 1983. 85 Nor was a labor union a state actor
under 1983 merely because it was extensively regulated by the state, since it was not
significantly dependent on government financing, was not accorded tax-exempt status,
and did not serve a traditionally public function. 86 However, the challenged action
does not have to be under a state statute in order to satisfy the state action requirement.
An official whose actions are authorized both by state and federal law will be considered
a state actor if the real authority to act exists at the state level. 87
In a nonemployment case, the Supreme Court has determined that state governments that
have not given their permission to be sued are immune from liability for injunctive relief
under 1983. 88
Furthermore, suits against state officials acting in their official
capacities are treated with the same Eleventh Amendment immunity as suits against the
state itself. 89
Local governments do not have this Eleventh Amendment immunity,
90 so that local officials are subject to both monetary and injunctive liability. 91
A private party acting in conspiracy with a state official to deprive others of
constitutional rights is acting under color of state law and can be a defendant under
1983. 92
Since the language of 1983 is directed at persons acting under color of state law 93 it
is not directed at the federal government or at federal officers, who act only under federal
law. 94
11 ----Section 1983's state action requirement [SUPPLEMENT]

2000e-2). 116 ALR Fed 1.
Case authorities:
Claim of employee of Virgin Islands Water and Power Authority, alleging violation of 42
USCS 1983 arising out of alleged pattern and practice of employment discrimination,
is denied summarily, because 1983 does not apply to territories such as Virgin Islands.
Lake v Virgin Islands Water & Power Auth. (1994, DC VI) 875 F Supp 283, 67 BNA
FEP Cas 167.
Claim of former police chief of Indian tribe against tribal council, alleging deprivation of
right to free speech, is dismissed, where defendants' actions at issue had no independent
legal effect, but rather were official actions of tribal community, because action is barred
by doctrine of tribal sovereign immunity. Miller v Coyhis (1995, ED Wis) 877 F Supp
1262.
Footnotes
Footnote 81. Young v International Tel. & Tel. Co. (1971, CA3) 438 F2d 757, 3 BNA
Footnote 82. Modaber v Culpeper Memorial Hospital, Inc. (1982, CA4) 674 F2d 1023.
Footnote 83. Rendell-Baker v Kohn (1982) 457 US 830, 73 L Ed 2d 418, 102 S Ct
2764.
Footnote 84. MacDonald v Eastern Wyoming Mental Health Center (1991, CA10) 941
F2d 1115, 56 BNA FEP Cas 1149, 57 CCH EPD 40918.
Footnote 85. Mineo v Transportation Management of Tennessee, Inc. (1988, MD Tenn)
694 F Supp 417, 49 CCH EPD 38780.
Footnote 86. Mr. Furniture Warehouse, Inc. v Barclays American/Commercial, Inc.
(1988, SD Fla) 708 F Supp 331, affd (CA11) 919 F2d 1517, cert den (US) 116 L Ed 2d
43, 112 S Ct 68.
Footnote 87. Johnson v Orr (1986, CA3) 780 F2d 386, 121 BNA LRRM 2487, cert den
479 US 828, 93 L Ed 2d 56, 107 S Ct 107, 133 BNA LRRM 2744.
Footnote 88. Alabama v Pugh (1978) 438 US 781, 57 L Ed 2d 1114, 98 S Ct 3057.
Footnote 89. Will v Michigan Dept. of State Police (1989, US) 491 US 58, 105 L Ed 2d
Footnote 90. Monell v Department of Social Services (1978) 436 US 658, 56 L Ed 2d

Footnote 91. Miller v Mission (1983, CA10) 705 F2d 368.
Footnote 92. Melo v Hafer (1990, CA3) 912 F2d 628, affd (US) 116 L Ed 2d 301, 112 S
Ct 358, 57 BNA FEP Cas 241, 6 BNA IER Cas 1487, 57 CCH EPD 41059.
Footnote 93. As to 1983's prohibitions, generally, see 10.
Footnote 94. La Rouche v New York (1974, SD NY) 369 F Supp 565.
For a discussion of governmental immunity under the constitution, see 2343 et seq.
12 Section 1983's custom or official policy requirement

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Another aspect of the state action requirement that may arise is whether an individual's
allegedly illegal actions under 1983 represented an established custom or official policy
of the governmental entity, and if so, whether the individual actor can also be held liable
along with the institutional entity. 95
A public entity is only liable under 1983 when the challenged action is a policy
established by legislative, executive, or other final policymaking authority, or is the result
of delegation of such authority to subordinates subject to review by the authorized
policymakers. Simply going along with discretionary decisions made by one's
subordinate is not a delegation of policymaking authority. 96
Furthermore, mere
negligence in supervision of subordinates is not sufficient to establish liability under
1983. 97
Where a decisionmaker possesses final authority to establish municipal policy with
respect to an employment action, municipal liability under 1983 may be imposed for a
single decision. 98
However, a government employer cannot be held liable under 1983 when an employee
with no authority to make final decisions under state law commits a single act of
discrimination that is "rubber stamped" by the only employees with authority. 99
Although liability under 1983 can arise only for a deprivation of rights that is inflicted
pursuant to official policy, the policy need not be formally announced, but can be
demonstrated by persistent, widespread practice. 1
12 ----Section 1983's custom or official policy requirement [SUPPLEMENT]

2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 95. For a discussion of governmental immunity under the constitution, see
2343 et seq.
Footnote 96. St. Louis v Praprotnik (1988) 485 US 112, 99 L Ed 2d 107, 108 S Ct 915,
3 BNA IER Cas 273.
Footnote 97. Jane Doe "A" v Special School Dist. (1988, ED Mo) 682 F Supp 451, affd
(CA8) 901 F2d 642.
Footnote 98. Pembaur v City of Cincinnati (1986, US) 475 US 469, 89 L Ed 2d 452,
106 S Ct 1292.
Footnote 99. Hull v Cuyahoga Valley Joint Vocational School Dist. Bd. of Educ. (1991,
CA6) 926 F2d 505, 55 BNA FEP Cas 269, 55 CCH EPD 40582, cert den (US) 115 L
Ed 2d 1080, 111 S Ct 2917, 56 BNA FEP Cas 776, 56 CCH EPD 40833.
Footnote 1. Hamilton v Rodgers (1986, CA5) 791 F2d 439, 40 BNA FEP Cas 1814.
13 Relationship between 1983 and federal job discrimination laws

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Since 42 USCS 1983 protects no substantive rights on its own, but merely provides a
vehicle for the assertion of other statutory or constitutional rights, 2 two questions
frequently arise when 1983 suits are brought in conjunction with suits under other job
discrimination laws, like Title VII, the ADEA, Title VI, the Rehabilitation Act, and the
other early civil rights acts.
The first question is whether a 1983 suit can be based on the same factual grounds that
constitute a violation of the federal job discrimination law, or must the 1983 suit be
based on independent grounds. The second question is whether the administrative
processing that may be required under the federal job discrimination law 3 must be
invoked or exhausted before a court will entertain the 1983 suit. 4
13 ----Relationship between 1983 and federal job discrimination laws
[SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Case authorities:
Allegations of discriminatory treatment in connection with public employment that form
basis of Title VII claim cannot form basis of second, separate claim under 42 USCS
1983 as well. Jackson v City of Atlanta (1996, CA5 Tex) 73 F3d 60, 69 BNA FEP Cas
1505.
Allegations of discriminatory treatment in connection with public employment that form
basis of Title VII claim cannot form basis of second, separate claim under 42 USCS
1983 as well. Jackson v City of Atlanta (1996, CA5 Tex) 73 F3d 60, 69 BNA FEP Cas
1505.
Footnotes
Footnote 2. As to 1983's prohibitions, generally, see 10.
Footnote 4. Both of these questions are discussed in the context of court proceedings at
2096 et seq.
14 Section 1985
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The Federal Conspiracy to Obstruct Justice Act forbids the intimidation of witnesses in
federal court. 5 Another part of 1985 prohibits conspiracies for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws. 6
Jews constitute a class protected by 42 USCS 1985(3). 7
14 ----Section 1985 [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Supreme Court's views as to validity, construction, and application of 42 USC sec. 1985
(and similar predecessor provisions), providing for civil liability with respect to
conspiracies to interfere with civil rights 122 L ED 2nd 807.
Case authorities:
Transferred Puerto Rico government employees have no valid civil rights conspiracy
claim against governor and other officials, where employees allege they were transferred
from their former positions in contracts office in governor's executive mansion based
only on their political affiliation, because claim of discrimination based on political
affiliation does not allege cause of action under 42 USCS 1985(3), which provides no
protection from purely political conspiracies. Morales-Narvaez v Rossello (1994, DC
Puerto Rico) 852 F Supp 104.
Art teachers' claims under 42 USCS 1985(3) and 1986 must fail, where one teacher
allegedly was suspended and both have been excluded from participation in art
curriculum revision efforts due to feud with superintendent and school administration,
because this assertion rather obviously falls within category of cases in which "class" is
defined as victims of alleged deprivation, which is not class protected by 1985(3).
Kessler v Monsour (1994, MD Pa) 865 F Supp 234.
District court erroneously concluded that cause of action for denial of access to courts
under 42 USCS 1985 could not provide remedy for retaliatory termination and denial
of salary of public defender. Portman v County of Santa Clara (1993, CA9 Cal) 995 F2d
898, 93 CDOS 4212, 93 Daily Journal DAR 7235.
Footnotes
Footnote 5. 42 USCS 1985(2).
Annotation: Applicability of 42 USCS 1985(3) to sex-based discrimination, 46
ALR Fed 342.
Footnote 7. Klupt v Chicago (1991, ND Ill) 1991 US Dist LEXIS 9723.
15 Relationship between 1985(3) and other job discrimination laws

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The application of 1985(3) to private job discrimination has been severely limited by
the Supreme Court's ruling that an action for damages may not be brought under
1985(3) to redress violations of rights created by Title VII. The Court found that
1985(3) provides no independent substantive rights coextensive with those set forth in
Title VII, but is a purely remedial statute providing a cause of action when a defined
federal right, namely, to the equal protection of the laws or to the privileges and
immunities under the laws is breached by a conspiracy. 8
Observation: Novotny has been distinguished as inapplicable in some circumstances

by lower federal courts. It has also been used as guidance in addressing claims brought
under other federal job discrimination laws like the ADEA, the Equal Pay Act, and the
Rehabilitation Act. 9
15 ----Relationship between 1985(3) and other job discrimination laws
[SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Supreme Court's views as to validity, construction, and application of 42 USC sec. 1985
(and similar predecessor provisions), providing for civil liability with respect to
conspiracies to interfere with civil rights 122 L ED 2nd 807.
Case authorities:
Art teachers' claims under 42 USCS 1985(3) and 1986 must fail, where one teacher
allegedly was suspended and both have been excluded from participation in art
curriculum revision efforts due to feud with superintendent and school administration,
because this assertion rather obviously falls within category of cases in which "class" is
defined as victims of alleged deprivation, which is not class protected by 1985(3).
Kessler v Monsour (1994, MD Pa) 865 F Supp 234.
Footnotes
Footnote 8. Great American Federal Sav. & Loan Asso. v Novotny (1979) 442 US 366,
60 L Ed 2d 957, 99 S Ct 2345, 19 BNA FEP Cas 1482, 20 CCH EPD 30004.
Footnote 9. All of these cases are discussed in the context of court proceedings at
2096 et seq.
C. Age Discrimination in Employment Act [16, 17]
Research References
29 USCS 621, 623, 630, 630,
Discharge From Employment or Office; Labor and Employment
Discrimination under Age Discrimination in Employment Act, 10 Am Jur POF2d, p 1.
15 et seq.
Modjeska, Employment Discrimination 5:1 et seq
16 Generally
View Entire Section
Go to Supplement
The Age Discrimination in Employment Act (ADEA) is the most significant federal
statute outlawing age discrimination in employment. The ADEA 10
covers
employers, 11 including the federal government 12 as well as the states, their political
subdivisions, and any interstate agencies, 13 employment agencies, 14 and labor
unions. 15
The ADEA prohibits age discrimination in terms, conditions, and privileges of
employment. 16
Practice Aids: Corporate downsizingor age discrimination? 28 Trial 26 (July 1992).
Statutes:
government, including the Age Discrimination in Employment Act of 1967. (2 USCS
1311) provides for the specific rights and protection under the Act.
Case authorities:
ADEA provides exclusive remedy for age discrimination; thus, ADEA preempts claims
for age discrimination under 42 USCS 1985. Gregor v Derwinski (1996, WD NY) 911
F Supp 643.
Age Discrimination in Employment Act (29 USCS 621 et seq.) applies to protect lay
teacher in church-operated school; however, when religious employer contends that
religious tenet or practice motivated challenged employment action, ADEA applies only
so long as plaintiff does not challenge validity of such doctrine or practice and only
questions whether proffered religious reason actually motivated employment action.
Geary v Visitation of the Blessed Virgin Mary Parish Sch. (1993, CA3 Pa) 7 F3d 324, 62
Employer implementing workforce reduction may violate ADEA by requiring all
terminated employees, regardless of age, to sign general release of all claims against
corporation in order to qualify for enhanced separation benefits. Dibiase v Smithkline
Beecham Corp. (1993, ED Pa) 17 EBC 1148, 63 BNA FEP Cas 96.
Since unions are liable for monetary damages under Fair Labor Standards Act when
acting as employer, unions are liable for such damages in action brought under ADEA.
LaPointe v United Autoworkers Local 600 (1993, CA6 Mich) 8 F3d 376, 63 BNA FEP
Cas 262, 63 CCH EPD 42641, reh, en banc, den (CA6) 1993 US App LEXIS 32559.
Action brought under Age Discrimination in Employment Act (29 USCS 621 et seq.)
is not preempted by 29 USCS 185, because employees have right not to be
discriminated against on basis of age without regard to collective bargaining agreement's
language about employee's rights. LaPointe v United Autoworkers Local 600 (1993, CA6
Mich) 8 F3d 376, 63 BNA FEP Cas 262, 63 CCH EPD 42641, reh, en banc, den (CA6)
1993 US App LEXIS 32559.
ADEA was not intended to protect older workers from often harsh economic realities of
common business decisions and hardships associated with corporate reorganizations,
downsizing, plant closings and relocations. Allen v Diebold, Inc. (1994, CA6 Ohio) 33
F3d 674, 65 BNA FEP Cas 1202, 1994 FED App 309P.
Under 29 USCS 630(b), term "calendar year" means period between January and
December, rather than any period of twelve consecutive months. Rogers v Sugar Tree
Prods. (1993, CA7 Ill) 7 F3d 577, 63 BNA FEP Cas 60, 62 CCH EPD 42568.
Cases interpreting Title VII (42 USCS 2000e et seq.) can be used in interpreting
ADEA, and vice versa, because both statutes share similar purpose of stamping out
discrimination in various forms. United States EEOC v Metropolitan Educ. Enters. (1994,
ND Ill) 864 F Supp 71, 65 BNA FEP Cas 1643.
ADEA is, in some sense, hybrid of Title VII (42 USCS 2000e et seq.) and Fair Labor
Standards Act (29 USCS 201 et seq.); prohibitions in ADEA generally follow Title
VII, but remedies are those of FLSA. Eggleston v South Bend Community Sch. Corp.
(1994, ND Ind) 858 F Supp 841, 64 BNA FEP Cas 999.
ADEA protects individuals from age discrimination, and does not protect individuals
from other forms of alleged employer misconduct; thus, if employer chose not to hire
individuals because they were union members, such decision is not actionable under
ADEA. Faulkner v Super Valu Stores (1993, CA10 Colo) 3 F3d 1419, 62 CCH EPD
42536, 62 BNA FEP Cas 1289.
ADEA is remedial and humanitarian legislation that is to be liberally construed for

purpose of ending age discrimination in employment. Marx v Schnuck Mkts. (1994, DC
Kan) 863 F Supp 1489, 2 BNA WH Cas 2d 622.
State employee cannot base age discrimination claim on Title VII (42 USCS 2000e et
seq.) or on equal protection clause as enforced by 42 USCS 1983. Brogdon v Alabama
Dep't of Economic & Community Affairs (1994, MD Ala) 864 F Supp 1161, 66 BNA
FEP Cas 325.
A 4-year difference in age between the plaintiff and a worker hired to replace him was
too small to raise an inference of age discrimination so as to establish a prima facie case.
Jacques v Akzo Int'l Salt, Inc. (1993, Super Ct) 619 A2d 748.
Footnotes
Footnote 10. 29 USCS 621 et seq.
Annotation: Construction and application of Age Discrimination in Employment Act
of 1967 (29 USCS 621 et seq.), 46 ALR Fed 342.
Practice References Discrimination under Age Discrimination in Employment Act.
10 Am Jur POF2d, p 1.
Class nature of Title VII violations. 21 Am Jur Trials 1, Employment Discrimination
Action Under Federal Civil Rights Acts 15 et seq.
Practice References Modjeska, Employment Discrimination 5:1 et seq.
Footnote 11. 29 USCS 623(a), 623(e).
Footnote 12. 29 USCS 633a(a).
Footnote 13. 29 USCS 630(b)(2).
Footnote 14. 29 USCS 623(b), 623(e).
Footnote 15. 29 USCS 623(c)(1)-(2), 623(e).
Substantive prohibitions under the statute, as well as any exceptions to those
prohibitions, are discussed under the topic of age discrimination, at 168 et seq.
Footnote 16. 29 USCS 623(a)(1).
The specific requirements for employer coverage under the ADEA, as well as the age
range that is protected under the statute, are discussed at 36 et seq.
17 Constitutionality of ADEA
View Entire Section

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There have been no successful constitutional challenges to the ADEA's prohibition on
age discrimination in the private sector, and the extension of the ADEA to state and local
governments is a valid exercise of Congress' powers under the Commerce Clause of the
Fourteenth Amendment to the U.S. Constitution. 17
Constitutional challenges to the application of the ADEA on religious grounds have met
with mixed success. For example, one court has held that enforcement of the ADEA
against a church-operated school raises no constitutional implications given the statute's
relatively narrow focus of eliminating age discrimination. 18
However, another court has determined that the ADEA's application to a religious
seminary would have serious First Amendment repercussions both in terms of a chilling
effect on the archdiocese's control over the seminary's religious mission and the court's
entanglement in attempting to enforce awards of injunctive relief. 19
Similarly, the ADEA does not apply to a pastor's employment relationship with a church,
because the First Amendment's protection of the free exercise of religion overrides the
government's compelling interest in deterring employment discrimination. 20
17 ----Constitutionality of ADEA [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 17. EEOC v Wyoming (1983) 460 US 226, 75 L Ed 2d 18, 103 S Ct 1054, 4
EBC 1033, 31 BNA FEP Cas 74, 31 CCH EPD 33364.
Footnote 18. Soriano v Xavier University Corp. (1988, SD Ohio) 687 F Supp 1188, 47
BNA FEP Cas 417.
Footnote 19. Cochran v St. Louis Preparatory Seminary (1989, ED Mo) 717 F Supp
Footnote 20. Minker v Baltimore Annual Conference of United Methodist Church (1988,
DC Dist Col) 699 F Supp 954, 48 BNA FEP Cas 481, 49 CCH EPD 38850, affd in part
and remanded in part on other grounds 282 US App DC 314, 894 F2d 1354, 51 BNA
FEP Cas 1372, 52 CCH EPD 39586.
D. Americans With Disabilities Act [18, 19]

Research References
42 USCS 12111, 12112, 12201
29 CFR Part 1630, Appendix
ALR Index, Civil Rights and Discrimination; Civil Service; Discharge From
Employment or Office; Labor and Employment
18 Generally
View Entire Section
Go to Supplement
The Americans with Disabilities Act (ADA) is the most significant federal law
prohibiting disability discrimination in employment. The law's employment
discrimination prohibitions become effective on July 26, 1992, 21 for labor
organizations, employment agencies, joint labor-management committees, 22 and
employers with 25 or more employees. 23
The Act prohibits disability discrimination with respect to all terms, conditions, and
privileges of employment, 24 and contains particular discrimination prohibitions with
respect to public entities. 25
Practice Aids: Defense of Claims Brought Under the Americans With Disabilities Act.
49 Am Jur Trials 171.
26 Am Jur Proof of Facts 3d 341, Proof of Discriminatory Termination of HIV-Positive
Employee.
Statutes:
government, including the Americans with Disabilities Act of 1990. (2 USCS 1311)
provides generally for the rights and protection under the Act, and (2 USCS 1331)
details the entities subject to the Act, rights and protection, and remedies.
Case authorities:
Plaintiff was not a "handicapped person" within the meaning of G.S. 168A-1 et seq.
(the "North Carolina Handicapped Persons Protection Act"), and the trial court therefore
properly granted defendant's summary judgment motion on plaintiff's claim that
defendant employer failed to make reasonable accommodation to her handicap in

violation of G.S. 168A-4, since plaintiff would be unable to show at trial that her
physical impairment limited a "major life activity" where evidence in the record indicated
that plaintiff experienced some pain in her lower back and that she was under a
physician's order not to lift more than 40 pounds, to avoid repetitive bending at the waist,
and to avoid prolonged sitting or standing without changing position; the activities which
caused plaintiff pain and discomfort were not those essential tasks one must perform on a
regular basis in order to carry on a normal existence; and plaintiff was not "handicapped"
merely because she could not perform one particular type of job. G.S. 168A-3(4)(i).
Gravitte v Mitsubishi Semiconductor Am., Inc. (1993) 109 NC App 466, 428 SE2d 254,
2 AD Cas 669.
Footnotes
Footnote 21. 42 USCS 12111 note.
Footnote 23. 42 USCS 12111(5)(A).
Footnote 24. 42 USCS 12112(a).
19 Relationship to other laws

View Entire Section
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Except as otherwise provided in the ADA, nothing in it may be construed to apply a
lesser standard than is applied under the Rehabilitation Act of 1973 26 or its
implementing regulations. Furthermore, nothing in the ADA may be construed to
invalidate or limit any other federal, state or local law that provides greater or equal
protection for the rights of individuals with disabilities. 27
Therefore, an individual with a disability could pursue claims under a state
discrimination or tort law simultaneously with the remedies provided under the ADA
when those other statutes provide greater or different relief. This means that an employer
cannot raise the existence of a less strict standard of protection for disability
discrimination under the ADA as a defense to its failure to meet a higher standard under
another law, nor can it raise the existence of a lesser standard under another law as a
defense for failing to meet higher standards established by the ADA. 28 Thus, while an
employer may attempt to defend a charge of discrimination under the Act by claiming
that the challenged action is required, necessitated, or, conversely, prohibited by another
federal law or regulation, this defense may be rebutted by a plaintiff showing that the
federal standard at issue does not require the discriminatory action, or by showing a
nonexclusionary means to comply with the standard that does not conflict with the ADA.
29
Similarly, ADA requirements supercede state workers' compensation laws, subject to the
defense that a challenged action is required by another federal law or regulation, such as
the Occupational Safety and Health Act, or that another federal law or regulation
prohibits an action that would otherwise be required under the ADA. However, this
defense is unavailable when the federal standard does not require the discriminatory
action, or there is a way that the employer can comply with legal requirements under both
the ADA and the other federal law or regulation. 30
The ADA does not pre-empt any federal, state, or local law that provides greater or equal
protection for the rights of individuals with disabilities, including 42 USCS 1983, with
respect to the public entities provisions of the statute. 31
19 ----Relationship to other laws [SUPPLEMENT]
Age discrimination and the ADA: how the ADA may be used to arm older Americans
against age discrimination by employers who would otherwise escape liability under the
ADEA, 66 Temp LR 173 (1993).
26 Am Jur Proof of Facts 3d 341, Proof of Discriminatory Termination of HIV-Positive
Employee.
Case authorities:
Claim under 42 USCS 1983 which was asserted by former city police officer who
alleged that he was discriminated against on basis of his heart condition in violation of
ADA Title I (42 USCS 12111 et seq.) and 504 of Rehabilitation Act (29 USCS
794) must be dismissed because Title I and 504 contain remedial structures sufficiently
comprehensive to indicate congressional intent to preclude 1983 claims based on
alleged injuries that are remediable under those statutes. Holmes v City of Chicago
(1995, ND Ill) 9 ADD 871.
Footnotes
Footnote 28. 29 CFR Part 1630, Appendix, 1630.1.
Footnote 29. 29 CFR Part 1630, Appendix, 1630.15(e).
Footnote 30. Technical Assistance on the Employment Provisions (Title I) of the
Americans with Disabilities Act - Explanation of Key Legal Requirements, Equal
Employment Opportunity Commission, January 28, 1992.

Footnote 31. H Rept No. 101-485, Part 3 p. 52.
E. Equal Pay Act [20]
Research References
29 USCS 206
Employment or Office; Equal Pay Act; Labor and Employment
20 Generally
View Entire Section
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The Equal Pay Act (EPA) prohibits discrimination in compensation on the basis of sex.
The law 32 is part of the Fair Labor Standards Act (FLSA) and its coverage
requirements are generally the same as that of the FLSA. 33 Its reach extends only to
sex discrimination in compensation by employers, 34 and labor unions and their agents
who cause employers to discriminate. 35
The EPA's substantive provisions, all exceptions to those provisions, and an examination
of the differences in bringing a compensation claim under the EPA and Title VII, are
discussed under the topic of compensation. 36
Practice Aids: Closing the pay gap: Redefining the Equal Pay Act's fourth affirmative
defense, 27 Colum J L & SP 225 (1994).
Pay equity: A child of the 80s grows up, 63 Fordham LR 4:1461 (1995).
Is there a policy problem?: The gender wage gap, 82 Geo LJ 109 (1993).
The theory of comparable worth as a remedy for discrimination, 82 Geo LJ 135 (1993).
Alternative economic perspectives on the use of labor market policies to redress the
gender gap in compensation, 82 Geo LJ 31 (1993).
Comparable worth in Ontario: Lessons the United States can learn 17 Harv Women's LJ
103 (1994).
The gender pay gap, fringe benefits, and occupational crowding, 48 Indust & Lab Rel R
4:692 (1995).
Resurrecting comparable worth as a remedy for gender-based wage discrimination, 23
Southw U LR 225 (1994).
26 Am Jur Proof of Facts 3d 269, Proof of Violation of Equal Pay Act.
What constitutes "establishment" for purposes of sec. 6(d)(1) of Equal Pay Act (29 USCS
sec. 206(d)(1)), prohibiting wage discriminaion within establishment based on sex 124
ALR Fed 159.
Case authorities:
Equal Pay Act claim accrues when plaintiff knew or should have known of disparity in
pay between her and men performing work requiring equal skill, effort and responsibility
under similar working conditions. Battaglio v General Elec. Co. (1995, ED Pa) 66 BNA
FEP Cas 1509, 2 BNA WH Cas 2d 975.
Equal Pay Act, which addresses actually paying different wages to similarly situated
employees, does not apply to potential employees. McNierney v McGraw-Hill, Inc.
(1995, DC Md) 919 F Supp 853, 70 BNA FEP Cas 935.
Equal Pay Act supports claims with respect to gender discrimination only; thus, plaintiff's
claim that she was denied merit raises because she is black, not because she is woman,
failed to state cause of action under Act. Williams v Wal-Mart Stores (1995, SD Tex) 882
Analysis of claim of unequal pay for equal work is essentially same under both Equal Pay
Act and Title VII (42 USCS 2000e et seq.). Sunstrom v Schering-Plough Corp. (1994,
ED Tenn) 856 F Supp 1265.
Plaintiff states prima facie case of violation of Equal Pay Act when she shows that,
within same establishment, different wages are paid to employees of opposite sex,
employees do equal work which requires equal skill, effort and responsibility, and
employees have similar working conditions. Collier v Accountemps - Robert Half (1996,
ND Ill) 70 BNA FEP Cas 257.
Pay differential between university athletic coaches, allegedly based on gender of athletes
coached, does not constitute prohibited discrimination on basis of sex in violation of
Equal Pay Act. Deli v University of Minnesota (1994, DC Minn) 65 BNA FEP Cas 1026.
Violation of Equal Pay Act (29 USCS 206) is not, per se, violation of Title VII (42
USCS 2000e et seq.); in Title VII disparate treatment case, proof of discriminatory
intent is also required. Meeks v Computer Assocs. Int'l (1994, CA11 Fla) 15 F3d 1013,
64 BNA FEP Cas 258, 1 BNA WH Cas 2d 1544, 63 CCH EPD 42883, 127 CCH LC
33065, 7 FLW Fed C 1275.
To determine whether female employee's work was substantially equal to that of male
employees, court must look beyond job title or description and examine nature of actual
duties performed. Lara v Thomas (1994, Iowa) 512 NW2d 777, 1 BNA WH Cas 2d 1475,
127 CCH LC 33066.

Equal Pay Act, which is intended to remedy past injustices, has potential to work
injustice in present on innocent parties; tension exists between mandate of Act that
people doing equal work receive equal pay, and needs of employers to reward workers
who excel in their positions. Raymond v United States (1994) 31 Fed Cl 514, 1994 US
Claims LEXIS 117, 65 BNA FEP Cas 406, 2 BNA WH Cas 2d 267.
Footnotes
Footnote 32. 29 USCS 206(d)(1).
Practice References Modjeska, Employment Discrimination (2d ed) 4:1 et seq.
Footnote 36. For discussion of discrimination involving wages and salaries, generally,
see 725 et seq.
F. Laws Outlawing Discrimination on Federal Projects [21-27]
Research References
5 USCS 3301; 15 USCS 3151; 20 USCS 1681; 23 USCS 140; 29 USCS 50,
793, 794, 794,; 33 USCS 1251; 38 USCS 4212; 42 USCS 300w-7, 708, 2000,
2000,et seq., 2000e, 2000h-4, 3789d, 5057, 5301 et seq., 5601 et seq., 6005, 6101 et seq.,
6709, 6727, 8625, 9849, 9906; 43 USCS 1863; 45 USCS 803; 49 USCS 1608(f);
49 USCS Appx 2219
P.L. 97-248, 96 Stat. 324, 520, 523
5 CFR Part 900; 7 CFR Part 15; 10 CFR Parts 4, 1040; 13 CFR Part 112; 14 CFR Part
1250; 15 CFR Part 8; 18 CFR Parts 705, 1302; 22 CFR Part 141; 24 CFR Part 1; 28
CFR Part 42; 29 CFR Parts 29, 30, 31; 32 CFR Part 300; 34 CFR Part 106; 41 CFR
Part 60; 43 CFR Part 17; 45 CFR Parts 80, 611, 1110, 1203; 49 CFR Part 21
Discrimination
Modjeska, Employment Discrimination (2d ed) 8:1 et seq
21 Generally
View Entire Section

Various federal statutes and executive orders regulate the employment practices of
employers who do business directly with the federal government as contractors or
subcontractors, receive federal funding, or participate in federally subsidized programs.
Laws and regulations affecting all employers, whether or not a federal contract or work
on a federally assisted project or activity is involved, such as Title VII, 37 the early civil
rights acts, 38 the Age Discrimination in Employment Act, 39 the Americans with
Disabilities Act, 40 the Equal Pay Act, 41 and other laws, 42 are discussed elsewhere.
Footnotes
22 Laws and executive orders prohibiting discrimination in government

contracts; Executive Order 11246
View Entire Section
Executive Order 11246 43 prohibits job discrimination based on race, color, religion,
sex, or national origin, by contractors and subcontractors operating under federal service,
supply, use, and construction contracts, and contractors and subcontractors performing
under federally assisted construction contracts.
All contracts and subcontracts covered by Executive Order 11246 must include a clause
pledging not to discriminate because of race, color, religion, sex, or national origin, and
to take affirmative action to ensure that applicants are employed, and employees are
treated during employment, without regard to those factors. 44 Also, each executive
department or agency which administers a program involving federal financial assistance
must require, as a condition for the approval of any construction contract, that the
applicant for financial assistance agree to incorporate the equal employment clause in the
contract. 45
The Secretary of Labor is responsible for administering Executive Order 11246. 46
This responsibility has been delegated to the Office of Federal Contract Compliance
Programs (OFCCP), 47 which has developed a substantial body of regulations to

implement the Order. 48 Under these regulations, for example, written personnel
policies must expressly indicate that there will be no discrimination against employees on
account of sex, and if the employer deals with a bargaining representative for his
employees and there is a written agreement on conditions of employment, the agreement
must not be inconsistent with the OFCCP's guidelines. 49
The President's power to impose fair employment conditions on government contractors
has been upheld both in the context of contracts directly with the U.S. government, 50
and in the context of federally assisted state construction contracts. 51
State statutes are pre-empted by Executive Order 11246 to the extent that they conflict
with the Order's antidiscrimination prohibitions. 52
Footnotes
Footnote 44. 42 USCS 2000e note, 202.
Footnote 47. 41 CFR 60-1.2.
Footnote 48. 41 CFR Part 60.
Footnote 49. 41 CFR 60-20.3.
Footnote 50. Farmer v Philadelphia Electric Co. (1964, CA3) 329 F2d 3, 1 BNA FEP Cas
36, 55 BNA LRRM 2685, 1 CCH EPD 9689.
Footnote 51. Contractors Asso. of Eastern Pennsylvania v Secretary of Labor (1971,
CA3) 442 F2d 159, 3 BNA FEP Cas 395, 3 CCH EPD 8180, cert den 404 US 854, 30
L Ed 2d 95, 92 S Ct 98, 3 BNA FEP Cas 1030, 4 CCH EPD 7526.
Footnote 52. 41 CFR 60-2.31.
23 --Vietnam Era Veterans Readjustment Assistance Act

View Entire Section
Go to Supplement
Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of Section 1974
requires government contractors and subcontractors to take affirmative action to employ
and advance in employment qualified disabled veterans and Vietnam-era veterans. 53
Part of a contractor's affirmative action obligation is to include in each covered contract
and subcontract, and any contractual modifications, renewals, or extensions, a clause
promising not to discriminate against an employee or applicant because he or she is a
disabled or Vietnam-era veteran, with regard to any position for which the employee or
applicant is qualified. 54
Executive Order 11701 2 empowers the Secretary of Labor to exercise the President's
authority under 402. 55
23 --Vietnam Era Veterans Readjustment Assistance Act [SUPPLEMENT]
Case authorities:
Express requirement of Vietnam Era Veterans' Readjustment Assistance Act (38 USCS
4214), that agency include its affirmative action plan for disabled veterans in its
Rehabilitation Act affirmative action plan, does not suffice to incorporate Rehabilitation
Act's waiver of sovereign immunity (29 USCS 794a) into Vietnam Era Veterans'
Readjustment Assistance Act. Antol v Perry (1996, CA3 Pa) 82 F3d 1291, 5 AD Cas 769,
70 BNA FEP Cas 993.
Footnotes
Footnote 54. 41 CFR 60-250.4(a).
24 --Other laws regulating government contractors

View Entire Section
The employment practices of government contractors are also controlled by:
Executive Order 11141, which prohibits age discrimination; 56
the Rehabilitation Act of 1973, which requires affirmative action to employ and advance
in employment qualified handicapped individuals; 57
the National Apprenticeship Act of 1937, 58 through regulations issued by the Labor
Department's Bureau of Apprenticeship and Training that require nondiscrimination on
the basis of race, color, religion, national origin, or sex in registered apprenticeship
programs. 59
Since 503 does not afford the victim of a violation any real redress to court,
pre-emption would arbitrarily foreclose existing state law remedies for employees of
federal contractors only. 60
Footnotes
For a discussion of age discrimination, generally, see 168 et seq.
For a discussion of handicap or disability discrimination, generally, see 173 et seq.
Footnote 59. 29 CFR Parts 29, 30.
Footnote 60. Leabow v Swift-Eckrich, Inc. (1991, Tenn App) 58 CCH EPD 41438;
Muncy v Norfolk & W. R. Co. (1986, SD W Va) 650 F Supp 641, 46 BNA FEP Cas
1111, 112 CCH LC 11311.
25 Laws prohibiting discrimination in federally aided programs and activities;

Title VI
View Entire Section
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Title VI of the Civil Rights Act of 1964 61 prohibits discrimination on the basis of race,
color, or national origin in programs and activities receiving federal financial assistance.
62 However, Title VI does not authorize action by any department or agency with
respect to the employment practices of any employer, employment agency, or labor
organization unless the primary objective of the federal financial assistance is to provide
employment. 63 Furthermore, Congress does not intend to occupy the field under Title
VI to the exclusion of state laws on the same subject matter, or to invalidate a state law
provision unless it is inconsistent with Title VI. 64
Under Title VI, each federal department or agency empowered to extend federal financial
assistance to any program or activity by grant, loan, or contract other than a contract of
insurance or guaranty, must issue rules, regulations, or orders to achieve the objectives of
the statute authorizing assistance, although no rule, regulation, or order can become
effective until it has been approved by the President. 65 This function was delegated
under Executive Order 12250 to the Attorney General, 66 who has issued regulations
governing equal employment opportunity in federally assisted programs, and

coordinating the enforcement of Title VI. 67
Every application for federal financial assistance to carry out a program covered by Title
VII regulations, and every contract intended to carry out the program, must contain or be
accompanied by an assurance that the program will be conducted in compliance with all
the requirements imposed by the regulations. The scope and extent of the assurance is set
forth by regulation, and the department or agency responsible for the program specifies
the form of the assurance and the extent to which like assurances will be required of
subgrantees, contractors and subcontractors, transferees, successors in interest, and other
participants in the program. Each assurance must also include provisions which give the
United States a right to seek judicial enforcement. 68 Furthermore, a contractor or
subcontractor performing under a construction contract receiving federal assistance must
give the nondiscrimination assurances required by Executive Order 11246 for such
contracts. 69
Departments and agencies which have issued procedural regulations dealing with the
enforcement of Title VI's provisions concerning federal financial assistance include:
ACTION; 70
Department of Agriculture; 71
Department of Commerce; 72
Department of Defense; 73
Department of Education, Office of Civil Rights; 74
Department of Energy; 75
Department of Health and Human Services; 76
Department of Housing and Urban Development; 77
Department of the Interior; 78
Department of Justice; 79
Department of Labor; 80
Department of State; 81
Department of Transportation; 82
National Aeronautics and Space Administration; 83
National Foundation on the Arts and the Humanities; 84
National Science Foundation; 85
Nuclear Regulatory Commission; 86
Office of Personnel Management; 87

Small Business Administration. 88
Tennessee Valley Authority; 89
Water Resources Council. 90
25 ----Laws prohibiting discrimination in federally aided programs and activities;
Title VI [SUPPLEMENT]
Case authorities:
3-month suspension of minority set-aside programs under Small Business Act was not
shown to violate 42 USCS 1981, 1985(2), and 2000d, where government agency
articulated nondiscriminatory reason for suspension, i.e. that court decision had found
practice of awarding large number of small business projects to minority set-aside
program improper, and where no evidence supported assertion that reason was pretextual.
Enplanar, Inc. v Marsh (1994, CA5 La) 11 F3d 1284.
Footnotes
Footnote 61. 42 USCS 2000d et seq.
Footnote 62. 42 USCS 2000d.
Footnote 63. 42 USCS 2000d-3.
Footnote 64. 42 USCS 2000h-4.
Footnote 66. Ex Or 12250, 1-101.
Footnote 67. 28 CFR 42.101 et seq.
Footnote 68. 28 CFR 42.105(a).
Footnote 69. 28 CFR 42.104(c)(1).
For a discussion of Executive Order 11246, see 22.

26 --Title IX
View Entire Section
Go to Supplement
Title IX of the Education Amendments of 1972 prohibits, with some exceptions, sex
discrimination against any person seeking to participate in, or benefit from, any education
program or activity receiving federal financial assistance. 91
This has been interpreted
to forbid sex discrimination in employment, recruitment, consideration, or selection,
whether full-time or part-time, under any federally aided education program or activity,
92 with respect to all terms, conditions, or privileges of employment, 93 including
compensation. 94 A federal aid recipient must make all employment decisions in any
educational program or activity in a nondiscriminatory manner and may not limit,
segregate, or classify applicants or employees in any way that could adversely affect their
employment opportunities or status because of sex. 95
Furthermore, a recipient may not enter into any contractual or other relationship which
directly or indirectly has the effect of subjecting employees to sex discrimination,
including relationships with employment and referral agencies, labor unions, and
organizations providing or administering fringe benefits to the recipient's employees. 96
Also, no employment applicant may be granted a preference on the basis of attendance at
any educational institution or entity that admits students who are only or predominantly
of one sex, if to do so has the effect of discriminating on the basis of sex. 97
Title IX does not require an educational institution to grant preferential or different
treatment to members of one sex because of an imbalance that exists with respect to the
percentage of persons of that sex participating in or receiving the benefits of a federally
supported program or activity, although such statistical evidence may be considered in
determining whether statutorily prohibited sex discrimination exists. 98
26 --Title IX [SUPPLEMENT]
Case authorities:
Title VII (42 USCS 2000e et seq.), and judicial interpretations of it, provide
persuasive body of standards to which courts may look in shaping contours of private
right of action under Title IX of Education Amendments of 1972 (20 USCS 1681 et
seq.), particularly with respect to those actions that raise employment discrimination
claims. Preston v Virginia ex rel. New River Community College (1994, CA4 Va) 31 F3d
203, 65 BNA FEP Cas 877.
Action by former coach of university's women's basketball team, under Title IX of
Education Amendments of 1972 (20 USCS 1681- 1688), is not dismissed, where
coach asserted private cause of action based on university's alleged discrimination against
her on basis of sex and retaliation against her for challenging university's allegedly
discriminatory conduct with regard to men's and women's basketball programs, because,
under Supreme Court precedent, broad directive in Title IX that "no person" may be
discriminated against on basis of gender includes employees who directly participate in
federal programs or who directly benefit from federal grants, loans, or contracts, so
plaintiff may maintain private cause of action for damages under Title IX. Bowers v
Baylor Univ. (1994, WD Tex) 862 F Supp 142.
Individual alleging employment-related discrimination may not proceed with private
cause of action under Title IX of Education Amendments of 1982 (20 USCS 1681 et
seq.), because Title IX is preempted by Title VII of Civil Rights Act of 1964 (42 USCS
2000e et seq.). Wedding v University of Toledo (1994, ND Ohio) 862 F Supp 201, 65
BNA FEP Cas 1478.
Title IX of Education Amendments of 1972 (20 USCS 1681 et seq.) was enacted to
supplement Civil Rights Act of 1964's ban on racial discrimination in workplace and in
universities; because statutes share same goals, courts have interpreted Title IX by
looking to body of law developed under Title VI, as well as caselaw interpreting Title
VII. Yusuf v Vassar College (1994, CA2 NY) 35 F3d 709.
Footnotes
Annotation: Application of Title IX of the Education Amendments of 1972 (20 USCS
1681 et seq.) to sex discrimination in educational employment, 54 ALR Fed 522.
Footnote 92. 34 CFR 106.51(a)(1).
Footnote 93. 34 CFR 106.51(b).
Footnote 94. 34 CFR 106.54.
Footnote 95. 34 CFR 106.51(a)(2).
Footnote 96. 34 CFR 106.51(a)(3).
Footnote 97. 34 CFR 106.51(a)(4).
27 Other laws regulating federal aid recipients

View Entire Section
Go to Supplement
Job discrimination by participants in federally assisted programs or activities is also
broadly prohibited by the:
Age Discrimination Act of 1975, which forbids age discrimination; 99
Rehabilitation Act of 1973, which prohibits discrimination against qualified
handicapped individuals. 1
In addition to these broad prohibitions, other federal statutes forbid discrimination by
participants in a variety of particular federally assisted programs, including the:
Developmental Disabilities Assistance and Bill of Rights Act, which prohibits handicap
discrimination; 2
Justice Assistance Act of 1984, which prohibits race, color, religious, national origin,
and sex discrimination; 3
Juvenile Justice and Delinquency Prevention Act of 1974, which prohibits race, creed,
color, sex, and national origin discrimination; 4

Job Training Partnership Act, which prohibits discrimination based on race, color,
religion, sex, national origin, age, handicap, political affiliation or belief, and status as a
participant in a program receiving funds; 5
Community Development Block Grant Entitlement Program, which prohibits
discrimination on the basis of race, color, national origin, sex, age, or handicap; 6
Federal Aid to Highways Act, which prohibits race, color, creed, and national origin
discrimination; 7
Urban Mass Transportation Act of 1964, which prohibits sex discrimination; 8
Railroad Revitalization and Regulatory Reform Act of 1976, which prohibits race,
color, national origin, and sex discrimination; 9
Full Employment and Balanced Growth Act of 1978, which prohibits race, color,
religious, sex, national origin, age, and handicap discrimination; 10
Outer Continental Shelf Lands Act, which prohibits race, color, creed, national origin,
and sex discrimination; 11
Domestic Volunteer Service Act of 1973, which prohibits discrimination based on race,
color, sex, creed, belief, national origin, age, handicap, or political affiliation; 12
Public Works Employment Act of 1976, which prohibits sex 13 race, color, religious,
and national origin discrimination; 14
Federal Water Pollution Control Act amendments of 1972 and the Environmental
Financing Act of 1972, which prohibit sex discrimination; 15
Omnibus Budget Reconciliation Act of 1981, which forbids race, color, religious, sex,
national origin, age, and handicap discrimination in the Head Start Program, 16 home
energy grants, 17 in block grant programs for community services, 18 preventive
health and health services, 19 and maternal and child health; 20
Airport and Airway Development Act of 1970, 21 as amended by the Tax Equity and
Fiscal Responsibility Act of 1982, which requires affirmative action to assure that no
person shall be excluded from participating in any federally funded activity on the basis
of race, color, creed, national origin, and sex; 22
National Apprenticeship Act of 1937, 23 through regulations issued by the Labor
Department's Bureau of Apprenticeship and Training requiring nondiscrimination on the
basis of race, color, religion, national origin, and sex in registered apprenticeship
programs. 24
Observation: Although some of the statutes listed above specifically forbid

employment discrimination, most of them simply contain general discriminatory
prohibitions patterned after the language used in Title VI of the Civil Rights Act of
1964. 25
27 ----Other laws regulating federal aid recipients [SUPPLEMENT]

Statutes:
The Developmental Disabilities Assistance and Bill of Rights Act was amended in 1994
(PL 103-230) to modify certain provisions relating to programs for individuals with
developmental disabilities, federal assistance for priority area activities for individuals
with developmental disabilities, protection and advocacy of individual rights, and
university-affiliated programs. Also, all sections then remaining in 49 USCS Appendix
were repealed in 1994. Airport development is now covered in 49 USCS 47101 et
seq.
42 USCS 5057, amended in 1993, now prohibits discrimination under the Domestic
Volunteer Service Act on the basis of race, color, national origin, sex, age, or political
affiliation of such participant or member, or on the basis of disability, if the participant or
member is a qualified individual with a disability.
Case authorities:
Teachers' challenge to change in required contributions to state retirement system must
fail, where age discrimination is claimed by class consisting of teachers less than 40
years of age with less than 10 years of creditable service, because there is simply no basis
to conclude that Age Discrimination Act of 1975 (42 USCS 6101 et seq.), part of
"Older Americans Amendments of 1975" and enacted to address unique problems faced
by older workers, can be used to protect younger workers as well. Parker v Wakelin
(1995, DC Me) 887 F Supp 14.
Fitzgerald Act (29 USCS 50) does not rely on state laws for enforcement, and includes
no clause preserving nonconflicting state laws. Dillingham Constr. N.A. v County of
Sonoma (1995, CA9 Cal) 57 F3d 712, 95 CDOS 4224, 95 Daily Journal DAR 7313, 19
EBC 1409, 130 CCH LC 57917, 2 BNA WH Cas 2d 1291.
Footnotes
173 et seq.
173 et seq.

Footnote 6. 42 USCS 5301 et seq..
Footnote 8. 49 USCS 1608(f).
Footnote 15. 33 USCS 1251 Note.
Footnote 19. 42 USCS 300w-7.
Footnote 21. 49 USCS Appx 2219.
Footnote 22. P.L. 97-248, 96 Stat. 324, 520, 523.
Footnote 24. 29 CFR Parts 29, 30.
Footnote 25. 25.
G. Other Federal Laws Regulating Employment Discrimination [28-35]
Research References
2 USCS 1201 et seq.; 5 USCS 2301, 2302, 5550a, 5550a,; 42 USCS 1885a,
1885b, 2000e, 12131, 12132, 12135; 50 USCS Appx 2407, 2415
5 CFR 300.102(c); 15 CFR Part 369; 28 CFR 35.140; 36 CFR Parts 5, 50
Discrimination
28 Generally
View Entire Section
Go to Supplement
Besides Title VII, the early civil rights acts, the ADEA, and the Equal Pay Act, a variety
of federal laws prohibit discrimination and similar conduct in both private and public
employment. The following discussion describes the statutes, executive orders, and
regulations that prohibit discrimination against employees of the federal government, and
other persons engaged in specified occupations or activities.
Other federal employment practice laws:
regulate substance abuse and drug testing policies; 26
regulate the use of polygraph and lie detector tests to protect worker's privacy interests;
27
regulate the activities of farm labor contractors. 28
Laws prohibiting discrimination by government contractors, recipients of federal
funding, and participants in federally subsidized programs, are discussed elsewhere. 29
Case authorities:
Education Secretary's authority under Randolph-Sheppard Act (20 USCS 107 et seq.)
includes conducting arbitration proceedings. Mississippi State Department of
Rehabilitation Services (9/7/94) Comp. Gen. Dec. No. B-250783.8.
Randolph-Sheppard Act (20 USCS 107 et seq.) vests authority for administering and
overseeing its requirements solely with Secretary of Education. Mississippi State
Department of Rehabilitation Services (9/7/94) Comp. Gen. Dec. No. B-250783.8.
Randolph-Sheppard Act (20 USCS 107 et seq.) was enacted to promote uniformity of
treatment of blind vendors by all federal agencies, establish consistent guidelines for all
state licensing agencies, establish administrative and judicial procedures to ensure fair
treatment of blind vendors, federal agencies and state licensing agencies, and create
stronger administrative and oversight powers in agency responsible for carrying out
program. Mississippi State Department of Rehabilitation Services (9/7/94) Comp. Gen.
Dec. No. B- 250783.8.
Footnotes
28.1 Discrimination relating to guaranteed family leave

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Employers are prohibited from discharging or in any other manner discriminating against
any individual for opposing any practice of the employer which is made unlawful by the
Family and Medical Leave Act of 1993. 30 It is also unlawful for any person to
discharge or discriminate in any other manner against any individual for:
(1) filing a charge or instituting any proceeding under or related to the general leave
requirements of the Act;
(2) giving or being about to give any information in connection with any inquiry or
proceeding relating to any right protected by the general leave requirements; or
(3) testifying or being about to testify in any inquiry or proceeding related to any right
provided by the general leave requirements. 31
Observation: Nothing in the Family and Medical Leave Act modifies or affects any
federal or state law prohibiting discrimination on the basis of race, religion, color,
national origin, sex, age, or disability. Neither does anything in the Act supersede any
provision of any state or local law that provides greater family or medical leave rights
than the rights established under the Act. 32 Furthermore, the Act does not diminish
any employer's obligation to comply with a collective bargaining agreement or
employment benefit program or plan providing greater family or medical leave rights
than those provided under the Act. At the same time, the rights which the Act provides
may not be diminished by any collective bargaining agreement or any employment
benefit program or plan. 33
28.1 ----Discrimination relating to guaranteed family leave [SUPPLEMENT]
Case authorities:
Plaintiff's termination by defendant employer following her four- day absence from work
did not violate Family and Medical Leave Act (29 USCS 2601 et seq.), because
plaintiff was absent to care for her son, who was suffering from ear infection, and such
illness does not constitute serious health condition under Act. Seidle v Provident Mut.
Life Ins. Co. (1994, ED Pa) 871 F Supp 238, 2 BNA WH Cas 2d 913.
Employer did not violate 29 USCS 2615(a) in denying pregnant employee's request for
reduced leave schedule prior to delivery, even though she testified to back pain, nausea,
headaches, and swelling during pregnancy, because there is nothing in objective medical
evidence on which to base finding that her pregnancy and related conditions kept her
from performing functions of her job for more than one-half day. Gudenkauf v Stauffer
Communs. (1996, DC Kan) 922 F Supp 465, 15 ADD 1217, 3 BNA WH Cas 2d 410,
132 CCH LC 33410.
Footnotes
29 Discrimination in federal employment

View Entire Section
There are special statutory protections for federal civil service employees that:
prohibit discrimination on the grounds of race, color, creed, sex, marital status, 34 as
well as age, handicap, religion, and political affiliation; 35
provide for compensatory time off for absences due to religious observance. 36
Furthermore, under Executive Order 11478 as amended by Executive Order 12106, it is
the policy of the federal government to provide equal employment opportunity and
prohibit discrimination in federal employment based on race, color, religion, sex, national
origin, handicap, or age. 37 The Equal Employment Opportunity Commission is
responsible for implementing this policy, 38 and, after consultation with all affected
departments and agencies, EEOC has the responsibility under Executive Order 12067 for
issuing such rules, regulations, orders, and instructions and requesting such information
as it deems necessary and appropriate to carry out the policy. 39
In addition, Office of Personnel Management regulations require that employment
practices of the federal competitive service be developed and used without discrimination
based on race, color, religion, sex, age, national origin, partisan political affiliation, and
other nonmerit grounds. 40
Finally, the Government Employee Rights Act of 1991 prohibits employment
discrimination based on race, color, religion, sex, national origin, age, handicap, and
disability against Senate employees, presidential appointees, and persons employed by
elected state or local officials. 41
Observation: Public employees also may raise certain discrimination claims under
the Fifth and Fourteenth Amendments, or may assert other rights, such as free speech,
in the employment context. 42
Footnotes
Footnote 35. 5 USCS 2301, 2302.
Footnote 36. 5 USCS 5550a.
Footnote 40. 5 CFR 300.102(c).
Footnote 42. For a discussion of the Constitutional rights of public employees, see the
Employment Discrimination Coordinator at 23,000 et seq.
30 Disability discrimination in services and programs by public entities

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Effective January 26, 1991, 43 the Americans with Disabilities Act (ADA) prohibits a
public entity from discriminating against a qualified individual with a disability, or
excluding him from participation in, or denying him the benefits of, any of the entity's
services, programs, or activities. 44
A "public entity" means a state or local government, 45 the departments, agencies,
special purpose districts, and other instrumentalities of state and local governments, 46
including public transit authorities, 47 and the National Railroad Passenger Corporation
(AMTRAK) and commuter authorities as defined in the Rail Passenger Service Act (45
USCS 501 et seq.). 48
For purposes of these prohibitions, a "qualified individual with a handicap" means an
individual with a disability who, with or without reasonable modifications to rules,
policies, and practices, or removal of barriers, or the provision of auxiliary aids and
services, meets the essential eligibility requirements for the receipt of services or for
participation. 49
The purpose of these prohibitions is to make the discrimination prohibited under 504 of
the Rehabilitation Act, including employment discrimination, unlawful in all public
programs, activities, and services, whether or not they receive federal financial
assistance. 50
The remedies, procedures, and rights established under 505 of the Rehabilitation Act
(29 USCS 794a) have been adopted by the ADA for purposes of enforcing these
prohibitions. 51
EEOC regulations covering Title I of the ADA, which are applicable to private
employees, also apply to employment in any service, program, or activity conducted by a
public entity if that entity is also subject to Title I of the ADA. 52
Justice Department regulations concerning 504 of the Rehabilitation Act apply to
employment in any service, program, or activity conducted by a public entity that is not
subject to Title I of the ADA. 53
30 ----Disability discrimination in services and programs by public entities
[SUPPLEMENT]
Practice Aids: 26 Am Jur Proof of Facts 3d 341, Proof of Discriminatory Termination
of HIV-Positive Employee.
Statutes:
45 USCS 501 et seq. were repealed in 1994. Amtrak is now covered in 49 USCS
24301 et seq.
Case authorities:
ADA Title II provision (42 USCS 12132) does not mandate deinstitutionalization;
thus, in action brought against state officials on behalf of class of institutionalized
individuals with physical and mental disabilities, claim that state violates Title II by
providing services to class members in institutional setting rather than community-based
environment will be dismissed on state's motion for summary judgment. Conner v
Branstad (1993, SD Iowa) 839 F Supp 1346, 43 Soc Sec Rep Serv 307, 4 ADD 1291.
Footnotes

Footnote 45. 42 USCS 12131(1)(A).
Footnote 46. 42 USCS 12131(1)(B).
Footnote 47. S Rept No. 101-116, 8/30/89, p. 45.
Footnote 48. 42 USCS 12131(1)(C).
Footnote 52. 28 CFR 35.140(b)(1).
Footnote 53. 28 CFR 35.140(b)(2).
31 Job discrimination in furtherance of foreign boycott

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The Export Administration Act of 1979 prohibits any "United States person" engaged in
interstate or foreign commerce from refusing, requiring another person to refuse,
knowingly agreeing to refuse, or knowingly agreeing to require another person to refuse
to employ any other "United States person" on the basis of race, religion, sex, or national
origin. The prohibited conduct must be taken in order to comply with, further, or support
a boycott fostered or imposed by a foreign country against a country that is both friendly
to the United States and that is not itself the object of any form of boycott under United
States law or regulation. 54 However, a "United States person" may proceed with a
project in a boycotting country even if certain of its employees or other prospective
participants in a transaction are denied entry for boycott reasons as long as no employees
or other participants are selected in advance in a manner designed to comply with the
boycott. 55
Under the Act and interpretive Commerce Department regulations, the term "United
States person" means:
(1) any United States resident or national (other than an individual residing outside the
United States and employed by other than a United States person);
(2) any domestic concern (including any permanent domestic establishment of any
foreign concern); and
(3) any foreign subsidiary or affiliate (including any permanent foreign establishment) of
any domestic concern which is controlled in fact by a domestic concern. 56
The Act does not supersede or limit the operation of the antitrust or civil rights laws of
the United States. 57 Although its primary target is the Arab boycott of Israel, 58 the
Commerce Department has stated that the Act may also cover the Nigerian boycott of
South Africa, the Indian boycott of Pakistan, and the mutual boycott between the People's
Republic of China and Taiwan. 59 Acting knowingly is an essential element in proving
a violation of the Act. 60
A medical college violated the anti-boycott provisions of the Act by excluding Jews from
rotation assignments on cardiovascular surgical teams sent to Saudi Arabia. 61
An individual may comply or agree to comply with any country's immigration or passport
requirements with respect to himself or any family member, or with requests for
information regarding whether he meets requirements for employment within the
boycotting country, 62 provided that he furnishes information only about himself or a
family member, and not about another "United States individual," including his
employees, employers, or co-workers. 63 For these purposes, a "United States
individual" means a person who is a resident or national of the United States. "Family"
means immediate family members, including parents, siblings, spouses, children, or other
dependents living in the individual's home. 64 However, a "United States person" may
not furnish this information about its employees or executives, but may allow any
individual to respond on his own to a request for the information, and may also perform
any nondiscriminatory ministerial acts to expedite processing of applications by
individuals, including: informing employees of boycotting country visa requirements at
an appropriate time; typing, translation, messenger, and similar services; and assisting in
or arranging for the expeditious processing of applications. 65
Footnotes
Footnote 54. 50 USCS App 2407(a)(1)(B).
Footnote 55. 15 CFR 369.3(e)(4).
Footnote 56. 50 USCS Appx 2415(2); 15 CFR 369.1(b).
Footnote 57. 50 USCS Appx 2407(a)(4).
Footnote 58. Abrams v Baylor College of Medicine (1984, SD Tex) 581 F Supp 1570, 34
BNA FEP Cas 229, 34 CCH EPD 34303, affd on other grounds (CA5) 805 F2d 528, 42
Footnote 59. Industry and Trade Administration: US Department of Commerce,
Questions and Answers on the Anti-Boycott Regulation, Situation Report, March, 1978.
Footnote 60. United States v Jamil (1983, CA2) 707 F2d 638.
U.S. construction company A is awarded a contract to build an office complex in
boycotting country Y. A, believing that employees of a particular religion will not be

permitted to work in Y because of Y's boycott against country X, excludes U.S. persons
of that religion from consideration for employment on the project. A's refusal to consider
qualified U.S. persons of a particular religion for work on the project in Y constitutes a
prohibited, boycott-based discriminatory action against U.S. persons on the basis of
religion. 15 CFR 369.2(b)(3)(i).
BNA FEP Cas 229, 34 CCH EPD 34303, affd on other grounds (CA5) 805 F2d 428, 42
Footnote 62. 50 USCS 2407(a)(2)(E).
Footnote 63. 15 CFR 369.3(e)(1).
Footnote 64. 15 CFR 369.3(e)(2).
Footnote 65. 15 CFR 369.3(e)(3).
32 Job discrimination on the basis of campaign contributions

View Entire Section
The Federal Election Campaign Act prohibits job discrimination by corporations or labor
organizations on the basis of campaign contributions for federal elections. Specifically, it
is illegal for any campaign contribution or expenditure fund to make a contribution or
expenditure by utilizing money or anything of value secured by threatened or actual job
discrimination, or by dues, fees, or other moneys required as a condition of membership
or employment, 66 even though they are later refundable upon the contributor's request.
67
However, a corporation, labor organization, or separately established political fund may
make two written solicitations for contributions by mail during the calendar year to any
stockholder, executive, or administrative personnel, employees, and family members, if
the solicitations are designed so that the entity cannot determine which persons
contributed $50 or less. 68
The corporation, labor organization, or fund may suggest contribution guidelines,
provided that either the person soliciting or the solicitation itself informs the person being
solicited that the guidelines are merely suggestions, 69 and that the person is free to
contribute more or less than the guidelines suggest without being disadvantaged by
reason of the amount of the contribution or a decision not to contribute. 70
Furthermore, the person being solicited must be informed of the political nature of the
fund and his right to refuse to contribute without risk of reprisal. 71
Footnotes
Footnote 66. 2 USCS 441b(b)(3)(A).

Criminal penalities provided in the Act are discussed at 3160.
Footnote 67. 11 CFR 114.5(a)(1).
Footnote 68. 2 USCS 441b(4)(B).
Footnote 69. 11 CFR 114.5(a)(2)(i).
Footnote 70. 11 CFR 114.5(a)(2)(ii).
Footnote 71. 11 CFR 114.5(a)(3), 114.5(a)(4).
33 Job discrimination against jurors

View Entire Section
The Jury Systems Improvements Act of 1978 prohibits employers from discharging,
threatening, or coercing a permanent employee because of his jury service in any court of
the United States. 72 However, where it appears that jury service may take more than
30 days, the court has the authority to consider potential severe economic hardship to the
employer in excusing an employee from service. 73
Footnotes
Footnote 73. 28 USCS 1869(j).
34 Job discrimination in scientific and technological fields

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The Science and Technology Equal Opportunities Act requires the National Science
Foundation to undertake or support a comprehensive effort, through the implementation
of activities, grants, research programs, and other means, to encourage the full
participation of women, minorities, and other currently underrepresented groups, such as
the handicapped, in professional and technical careers in the area of science and
technology. The President (with the assistance of the Director of the Office of Science
and Technology Policy, the Director of the National Science Foundation, and the heads
of the appropriate executive departments) is required by the Act to prepare a
comprehensive national policy and program, including budgetary and legislative
recommendations, designed to promote equal opportunity for women and minorities in
the professional fields of science and technology. 74
Footnotes
Footnote 74. 42 USCS 1885a, 1885b.
35 Job discrimination in government parks and lands

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Under regulations issued by the Interior Department's National Park Service, the operator
of any hotel or other facility for the general public within either a national park area or on
privately owned lands under federal jurisdiction, is prohibited from maintaining any
employment practice that discriminates because of race, creed, color, ancestry, or
national origin in connection with any protected activity provided for, or permitted by
contract with or permit from the government, or by derivative subcontract or sublease. 75
Like provisions are included in the National Capital Park Regulations. 76
Footnotes
Footnote 76. 36 CFR 50.46a.
35.1 Regulation of discriminatory farm labor contractor practices

View Entire Section
Federal law regulates and controls the activities of farm labor contractors 77 who, for a
fee, provide migrant 78 and seasonal 79 farm workers to agricultural employers. 80
The purpose of the Migrant and Seasonal Agricultural Workers Protection Act (MSPA)
81 is to remove restraints on commerce caused by activities detrimental to migrant and
seasonal agricultural workers, and to assure necessary protections for these workers, and
for agricultural associations and employers. 82 To do this, the MSPA imposes certain
obligations on farm labor contractors, agricultural employers, and agricultural
associations that employ migrant agricultural workers, and grants certain corresponding
rights, which cannot be waived, 83 to workers.
The MSPA is intended to supplement state laws affecting farm labor contractors.
Therefore, compliance with the Act does not excuse anyone from compliance with
pertinent state laws or regulations. 84
Footnotes
Footnote 77. 85.
Footnote 78. 121.
Footnote 79. 122.
Footnote 80. 86.
Forms: Complaint, petition, or declarationOn oral contractFor reasonable value of
servicesFarm labor. 21A Am Jur Pl & Pr Forms (Rev), Restitution and Implied
Contracts, Form 22.
Footnote 83. 1203.
II. SCOPE OF LAWS [36-122]

A. In General [36-38]
Research References
2 USCS 441, 441b, 1201, 1201,; 5 USCS 230, 2302, 3301, 5550A, 7204; 8 USCS
1324b; 20 USCS 1681; 28 USCS 1875; 29 USCS 50, 201, 203, 206, 623,
630, 633a, 793, 794; 38 USCS 4212; 42 USCS 2000d, 2000e, 2000e-2, 2000e-16,
12102, 12111, 12112, 12131, 12132; 50 USCS Appx 2407
Ex Or 11246
5 CFR 300.102
Discrimination
36 Generally
View Entire Section

Go to Supplement
Resolution of employment law coverage questions may depend both on the entities
covered and the persons protected by those laws. The following discussion identifies the
entities covered by federal job discrimination laws, 85 as well as the persons protected
by federal job discrimination laws. 86
Practice Aids: Congressional self-exemption from the employment discrimination
laws: A rational choice analysis of the Civil Rights Act of 1991, 54 Louisiana LR
6:1559 (1994).
Case authorities:
District court did not abuse its discretion in determining that 503 of Rehabilitation Act
(29 USCS 793) did not preempt state law antidiscrimination claims against federal
contractor, and thus district court properly abstained from enjoining state administrative
proceedings. Martin Marietta Corp. v Maryland Comm'n on Human Relations (1994,
CA4 Md) 38 F3d 1392, 7 ADD 36, 3 AD Cas 1429, 147 BNA LRRM 2645.
Footnotes
Footnote 85. 37.
Footnote 86. 38.
37 Entities covered by federal job discrimination laws

View Entire Section
The following checklist represents a broad overview of the types of entities that are
required to comply with federal statutes which prohibit job discrimination.
Caution: This checklist is not meant to be exhaustive of all the requirements for
coverage under each statute, and the reader is advised to refer to the appropriate
divisions listed below for more detailed information. For example, while a private
employer must comply with Title VII if it is covered, the basic standard for coverage
87 includes the requirement that the employer have 15 or more employees.
Furthermore, the Americans with Disabilities Act of 1990 has a delayed effective date
for the entities it covers, depending on whether the entity is a public entity, 88 and
depending on how many employees a private employer employs. 89
PLEASE SEE PRINTED VOLUME FOR TABLE
Footnotes
37.1 Entities covered by other federal employment laws

View Entire Section
Private employers are covered by federal laws that regulate various employment
practices, including:
the Employee Polygraph Protection Act; 90
the Family and Medical Leave Act of 1993; 91
the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). 92
Private employers also are covered by federal laws that regulate substance abuse and
drug testing policies. 93
Footnotes
38 Who is protected by federal job discrimination laws

View Entire Section

Go to Supplement
The following checklist represents a broad overview of the types of persons who are
protected under federal statutes which prohibit job discrimination.
Caution: This checklist is not meant to be exhaustive of all requirements for

protection under each statute, and the reader is advised to refer to the appropriate
divisions listed below for more detailed information. For example, while employees
are protected by Title VII if they are covered, certain high political officials are
excluded from the protection of that law. 94
38 ----Who is protected by federal job discrimination laws [SUPPLEMENT]
Statutes:
Footnotes
Footnote 94. For a general discussion of persons protected under federal law, see 110
et seq.
38.1 Entities covered by other federal employment laws

View Entire Section
In addition to the protection afforded under job discrimination laws, 95 employees and
applicants are protected by a variety of other laws, including the Employee Polygraph
Protection Act 96 and the Family and Medical Leave Act of 1993. 97
Migrant seasonal agricultural workers, agricultural associations, and agricultural
employers are protected by the Migrant and Seasonal Agricultural Worker Protection Act
(MSPA). 98
Footnotes
Footnote 95. 38.

B. Who Must Comply [39-109]
Research References
2 USCS 601, 1202, 1219(b), 1219(b),; 8 USCS 1324b; 20 USCS 1681, 1687;
26 USCS 501; 29 USCS 206, 630, 633a, 633a,et seq., 791, 793, 794, 794a; 38
USCS 4212; 42 USCS 1211, 2000d-3, 2000d- 4a, 2000d-7, 2000e, 2000e-16,
12202, 12209, 12111
P.L. 102-166 109(c)
Ex Or 11246
5 CFR Part 900; 7 CFR Parts 15, 15a, 15b; 10 CFR Parts 4, 1040; 13 CFR Parts 112,
113; 14 CFR Parts 379, 1250, 1251; 15 CFR Part 8; 18 CFR Parts 705, 1302, 1307;
22 CFR Parts 141, 142, 209, 217; 24 CFR Part 1; 28 CFR Part 42; 29 CFR Parts 31,
32, 1607, 1613, 1625, 1630, Appendix, 1641, 1691; 32 CFR Parts 56, 300; 33 CFR
Part 24; 34 CFR Parts 100, 104, 106; 38 CFR Part 18; 41 CFR Part 60-1, Part 60-4,
60-250, 60-714, 60-742, 101, 101-6, 741; 43 CFR Part 17; 44 CFR Part 7; 45 CFR Parts
80, 84, 86, 605, 611, 1010, 1110, 1151, 1170, 1203, 1232; 49 CFR Parts 21, 27
52 Fed. Reg. 37402
Discrimination
Employment Coordinator EP-16,145 et seq.; EP-16,245 et seq.; EP-16,755 et
seq.; EP-16,860 et seq.
1. In General [39]
39 Generally
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Both private 99 and public 1 employers are subject to the discriminatory prohibitions
contained in a variety of federal and state job discrimination laws. Private employers
covered by job discrimination laws when acting as government contractors 2 or
recipients of public funds 3 are discussed elsewhere.
Because the early civil rights acts do not expressly refer to particular entities for purposes
of coverage, the coverage requirements of those laws are discussed elsewhere. 4

Exceptions in these laws that refer to particular employees, as opposed to the broad-based
exclusions from coverage discussed below, are addressed under the type of
discrimination 5 or the specific term or condition of employment 6 to which they
apply.
For example, religious organizations are not exempt from the coverage of the ADA, 7
although certain religious organizations are permitted to exercise religious preferences
and qualifications without violating Title VII or the ADA.
While other entities may be covered by job discrimination laws when performing other
functions, such as a labor union acting in its capacity as a collective bargaining agent, 8
or an employment agency operating as a recruitment or referral source for employers, 9
those entities may also be covered as employers with respect to actions affecting their
employees and applicants for employment.
Statutes:
Case authorities:
Age discrimination claim which was brought by individual who was terminated from his
position as administrator of Jewish temple was not barred by First Amendment since
plaintiff was lay person whose duties were overwhelmingly secular, and under particular
circumstances of case, claim under Age Discrimination in Employment Act (29 USCS
621 et seq.) did not pose significant risk of infringement upon First Amendment because
it could be decided without having to call into question any aspect of religious doctrine or
practice. Weissman v Congregation Shaare Emeth (1994, CA8 Mo) 38 F3d 1038, 66
BNA FEP Cas 113.
Footnotes
Footnote 99. 40.
Footnote 1. 64.

Footnote 7. 29 CFR Part 1630, Appendix, 1630.16(a).
2. Coverage of Private Employers Under Federal Job Discrimination Laws [40-63]
a. In General [40-55]
40 Who is an "employer" under Title VII, the ADEA, and the ADA
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Go to Supplement
Under Title VII, 10
the Age Discrimination in Employment Act (ADEA), 11 and the
ADA, 12 an "employer" is defined as a person 13 engaged in an industry affecting
commerce 14 that employs a minimum number of employees for a specified time
period. 15 Agents of an employer are also covered as employers under all three
statutory definitions of an "employer". 16
Caution: There is a dispute as to whether agents of state and local government

employers, as opposed to private employers, are statutorily covered as employers under
the ADEA. 17
State aspects: The FEP laws, equal pay laws, age discrimination statutes, and
handicap laws of the fifty states, the District of Columbia, Puerto Rico, and the Virgin
Islands also identify the private employers to which discrimination prohibitions apply.
18
40 ----Who is an "employer" under Title VII, the ADEA, and the ADA
[SUPPLEMENT]
Practice Aids: Does a sincerely held religious belief provide a right to discriminate?
39 Bos BJ 1:5 (1995).
Supervisor liability under Title VII: A "feel good" judicial decision, 34 Duq LR 2:351
(1996).
Employment discriminationTitle VIISeventh Circuit reaffirms a narrow definition of

"employer" for the purposes of Title VII EEOC v. Metropolitan Educational
Enterprises, Inc. , 60 F3d 1225, 109 Harv LR 3:675 (1996).
"Our shield belongs to the Lord": Religious employers and a constitutional right to
discriminate, 21 Hast CL Q 275 (1994).
Age discrimination litigation: Who is an employee, what is an employer? 83 Ill BJ 3:120
(1995).
Case authorities:
ADEA does not impose personal liability on individuals who are not employers, since, by
incorporating term "any agent" into definition of employer, Congress intended only to
make employer liable for acts of his agents and did not intend to treat supervisory
employees as employers; thus, supervisor, in his individual capacity, cannot be named as
defendant. Low v Hasbro, Inc. (1993, DC RI) 817 F Supp 249, 61 BNA FEP Cas 887.
Inclusion of "agents" in definition of employer does not impose Title VII liability upon
individuals in addition to their employers. Krupinski v Circuit City Stores (1995, ED Pa)
When determining whether two firms constitute single employer, court must consider
functional integration or interrelation of operations, centralized control of labor relations,
common management, and common ownership. Zarnoski v Hearst Business
Communications (1996, ED Pa) 69 BNA FEP Cas 1514.
Determining whether defendant is employer under ADEA involves two-step process:
first, defendant must fall within statutory definition, and second, there must be
employment relationship between plaintiff and defendant; in determining whether
employment relationship exists, court applies hybrid economic realities/common law
control test. Deal v State Farm County Mut. Ins. Co. (1993, CA5 Tex) 5 F3d 117, 63
BNA FEP Cas 269.
Steamship association that represented stevedoring companies in negotiations with union
was not longshoreman's employer where association had no meaningful right to control
his conduct; stevedoring company foreman had right to hire and fire him, to supervise
him, and to set his work schedule; and association did not pay his wages, withhold taxes,
provide his benefits, or set terms and conditions of his employment. Barrow v New
Orleans S.S. Ass'n (1994, CA5 La) 10 F3d 292.
Borrowed servant doctrine is not applicable in Title VII actions to determine employer
status. Nowlin v Resolution Trust Corp. (1994, CA5 Tex) 33 F3d 498, 65 BNA FEP Cas
1870.
In Title VII action brought by former employees of failed financial institution against
Resolution Trust Corporation (RTC), as receiver of institution, and two of RTC's
personnel contractors, which alleged sexual discrimination and retaliatory discharge,
district court should have applied hybrid test, rather than borrowed servant doctrine, to
determine whether defendants were plaintiff's employer under Title VII. Nowlin v
Resolution Trust Corp. (1994, CA5 Tex) 33 F3d 498, 65 BNA FEP Cas 1870.
Although states, political subdivisions of states, and agencies or instrumentalities of

states or political subdivisions of states are considered employers for purposes of ADEA,
agents of instrumentality of state are not employers for ADEA purposes. Kauffman v
Kent State Univ. (1993, ND Ohio) 815 F Supp 1077.
In determining whether business relationship between parties is one of
employer-employee, courts look to economic realities of relationship and degree of
control employer exercises over alleged employee. Rogers v Sugar Tree Prods. (1993,
CA7 Ill) 7 F3d 577, 63 BNA FEP Cas 60, 62 CCH EPD 42568.
Judicially created single employer or integrated enterprise theory (under which
interrelation of two nominally separate business entities may lead court to consider them
as single entity) applies to definition of employer subject to ADEA under 29 USCS
630(b). Rogers v Sugar Tree Prods. (1993, CA7 Ill) 7 F3d 577, 63 BNA FEP Cas 60, 62
CCH EPD 42568.
When parent corporation exercises such extensive control over subsidiary's operations
and personnel decisions that, in effect, two corporations are one, courts may consider
parent along with subsidiary as employer subject to ADEA. Rogers v Sugar Tree Prods.
(1993, CA7 Ill) 7 F3d 577, 63 BNA FEP Cas 60, 62 CCH EPD 42568.
Only when public official is working in his or her official capacity (as compared to
individual capacity) is that official agent of government, and therefore, employer for
purposes of Title VII. Dirksen v City of Springfield (1994, CD Ill) 842 F Supp 1117, 64
BNA FEP Cas 116.
Individual who was president and controlling shareholder of restaurant employer, and
who was head of management and had supervisory authority at restaurant over all
employees, was employer for purposes of Title VII action, and could be held individually
liable, since individual was more than mere supervisor, and was actual employer in all
respects. Curcio v Chinn Enters. (1995, ND Ill) 887 F Supp 190, 68 BNA FEP Cas 290.
Definition of employer contemplates liability on part of some agents (those of persons),
and for entities with certain relationship to state, but it does not extend liability to agents
of state, its political subdivisions or instrumentalities. Kizer v Curators of Univ. of Mo.
(1993, ED Mo) 816 F Supp 548.
Individual defendants cannot be held liable for damages under Title VII; liability is
limited to employers. Miller v Maxwell's Int'l, Inc. (1993, CA9 Cal) 93 Daily Journal
DAR 4851, 61 BNA FEP Cas 948, 1 BNA WH Cas 2d 641, 61 CCH EPD 42196.
California National Guard does not violate ADEA when it requires active duty
commissioned officers of state national guard who can no longer be called into active
federal service to separate from active duty on their sixtieth birthday, since military
departments of states, when taking actions affecting active duty officers of state national
guard, are not employers within meaning of ADEA. Frey v State (1993, CA9 Cal) 982
F2d 399, 93 CDOS 93, 93 Daily Journal DAR 213, 60 BNA FEP Cas 958, 60 CCH EPD
41966.
Civil liability is limited to employers and individual defendant employees cannot be held
liable for damages, despite fact that term "employer" is defined to include any agent of
employer; purpose of agent provision was to incorporate respondeat superior liability into
statute. Miller v Maxwell's Int'l, Inc. (1993, CA9 Cal) 991 F2d 583, 93 Daily Journal
DAR 4851, 61 BNA FEP Cas 948, 1 BNA WH Cas 2d 641, 61 CCH EPD 42196, 125
CCH LC 35818.
Under integrated enterprise test (one test used to determine whether parent corporation is
liable for acts of its subsidiary), factors considered are interrelation of operations,
centralized control of labor relations, common management, and common ownership or
financial control. Frank v U.S. W., Inc. (1993, CA10 Colo) 3 F3d 1357, 62 CCH EPD
42522, 62 BNA FEP Cas 1282.
Under hybrid test for determining existence of employer- employee relationship, no
single factor is conclusive; rather, courts are to look at totality of circumstances
surrounding working relationship between parties. Lambertsen v Utah Dep't of
Corrections (1996, CA10 Utah) 79 F3d 1024, 70 BNA FEP Cas 631.
Under hybrid test for determining existence of employer- employee relationship, no
single factor is conclusive; rather, courts are to look at totality of circumstances
surrounding working relationship between parties. Lambertsen v Utah Dep't of
Corrections (1996, CA10 Utah) 79 F3d 1024, 70 BNA FEP Cas 631.
Commissioner of state department of mental health and mental retardation was employer
for purposes of Title VII action, since department was employer, governor appointed
commissioner (which was policy-making position), and commissioner was agent of
department, with actual authority to hire and fire employees of department. Cross v
Alabama (1994, CA11 Ala) 65 BNA FEP Cas 1290, 8 FLW Fed C 548.
State official, sued in his individual capacity, is not employer within meaning of Title
VII. Cross v Alabama Dep't of Mental Health & Mental Retardation (1995, CA11 Ala)
49 F3d 1490, 67 BNA FEP Cas 844, 8 FLW Fed C 1157.
Title VII does not impose liability on fellow employees, so that any suits brought under
Title VII against individual must be made against that individual in his official capacity,
not in his individual capacity; proper manner for plaintiff to recover under Title VII is to
proceed against employer either directly or by naming employer's supervisory employees
as its agents. Albert v National Cash Register Co. (1994, SD Fla) 66 BNA FEP Cas 567.
Title VII does not provide for private cause of action against EEOC by individuals who
are not employees of EEOC; thus, individual could not maintain suit against EEOC
because he was dissatisfied with manner in which EEOC had resolved his complaint.
Potter v Reno (1994, DC Dist Col) 66 BNA FEP Cas 681.
When determining whether two firms constitute single employer, court must consider
functional integration or interrelation of operations, centralized control of labor relations,
common management, and common ownership. Zarnoski v Hearst Business
Communications (1996, ED Pa) 69 BNA FEP Cas 1514.
Supervisory employee acting as agent of person engaged in industry affecting commerce
is "employer" as defined by ADA (42 USCS 12111 et seq.), however, individual
supervisory employee who acts as employee of employer cannot be held personally liable
for discrimination and cannot be sued in his individual capacity, and suing such
defendant in his official capacity is same as suing his employer. Haltek v Village of Park
Forest (1994, ND Ill) 864 F Supp 802, 6 ADD 888.

Where university has delegated employment decisions to committee and members of that
committee have allegedly engaged in discriminatory treatment, university is liable. Lam v
University of Hawaii (1994, CA9 Hawaii) 40 F3d 1551.
Footnotes
Footnote 10. 42 USCS 2000e(b).
Annotation: Meaning of term "employer" as defined in 701(b) of Title VII of Civil
Rights Act of in 1964, as amended ( in 42 USCS 2000e(b)), in 69 ALR Fed
in 191.
Footnote 12. 42 USCS 12111(5)(A).
Footnote 13. 42.
Footnote 14. 43.
Footnote 16. 63.
Footnote 17. 66.
Footnote 18. For a discussion of these statutes, see Employment Coordinator
EP-16,145 et seq.
41 Liberal definition of employer

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Courts have adopted a liberal construction of what an "employer" is under both Title VII,
19 and the ADEA, 20 in order to effectuate the remedial purposes of the respective
statutes. Thus, courts are likely to resolve an ambiguity in favor of finding a private
employer covered by the statutes. For example, because Title VII makes no distinction
between full-time or part-time employees in calculating the threshold coverage number,
21 it has been held that both types of employees are to be counted for such purposes. 22
When an employment agency trains and supervises its own employees to perform a
particular type of job, and then sends these employees to work under the agency's
supervision for another company, both the agency and the other company can be covered
as "employers" under Title VII because the agency is acting more like a subcontractor
than a referral service. 23
41 ----Liberal definition of employer [SUPPLEMENT]
Case authorities:
To invoke federal subject matter jurisdiction under ADEA, defendant must be employer
as defined under 29 USCS 630(b); however, plaintiff is not required to establish
traditional employer- employee relationship. United States EEOC v City of Evanston
(1994, ND Ill) 854 F Supp 534.
Person may be employer but not have ownership interest in employing business; thus,
employer may be person who effectively dominates administration of corporation that
employs workers, or person who is empowered to act on behalf of corporation to its
employees. Estevez v Hayes (1990, DC Or) 2 BNA WH Cas 2d 478, 128 CCH LC
33134.
Footnotes
Footnote 19. Armbruster v Quinn (1983, CA6) 711 F2d 1332, 32 BNA FEP Cas 369, 32
CCH EPD 33702; Baker v Stuart Broadcasting Co. (1977, CA8) 560 F2d 389, 15 BNA
Annotation: Liability under Title VII of Civil Rights Act of 1964 (42 USCS 2000e
et seq.) of employer, as successor employer, for discriminatory employment practices
of predecessor, 67 ALR Fed 806.
Footnote 20. Zimmerman v North American Signal Co. (1983, CA7) 704 F2d 347, 31
Annotation: Actions under Age Discrimination in Employment Act (29 USCS
621-634) challenging hiring or retirement practices in law enforcement employment,
79 ALR Fed 373.
Footnote 21. 44.
Footnote 22. Lynn v JER Corp. (1983, MD Tenn) 573 F Supp 17, 33 BNA FEP Cas 541.
Footnote 23. EEOC Policy Statement No. 917.002, 9/20/91.
42 Employer must be a "person"

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In order to be covered by the definition of "employer" under Title VII, the ADEA, and
the Americans with Disabilities Act (ADA), the entity must also be a "person". 24
Under Title VII a person includes: (1) one or more individuals; (2) labor unions; (3)
partnerships; (4) associations; (5) corporations; (6) legal representatives; (7) mutual
companies; (8) joint-stock companies; (9) trusts; (10) unincorporated organizations; and
(11) trustees, including trustees in bankruptcies or receivers. 25
Similarly, a "person" under the ADEA includes: (1) one or more individuals; (2)
partnerships; (3) associations; (4) labor organizations; (5) corporations; (6) business
trusts; (7) legal representatives; and (8) any organized group of persons. 26
On its effective date, 27 the ADA will adopt the same definition of "person" contained
in Title VII. 28
42 ----Employer must be a "person" [SUPPLEMENT]
Practice Aids: The glass ceiling in the legal profession: Why do law firms still have so
few female partners? 42 UCLA LR 6:1631 (1995).
Case authorities:
Entity that was merely name of hospital that was owned and operated by foreign
corporation authorized to do business in state was not person within meaning of 42 USCS
2000e(a); thus, Title VII plaintiff's complaint against entity was dismissed. Carter v
Lutheran Medical Ctr. (1995, ED Mo) 879 F Supp 94, 67 BNA FEP Cas 822.
Footnotes
Footnote 24. 40.
Footnote 25. 42 USCS 2000e(a).
Law Reviews: Applying Title VII to partners: One step beyond. 20 Rutgers LJ 741
(1989).
Employment discriminationWheeler v Hurdman [825 F2d 257]Who's the boss?
Partners as employees under federal employment discrimination laws. 13 Jour Corp L
1159 (1988).
Footnote 27. 44.
43 Employer's work must be in an industry affecting commerce

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To be covered by Title VII or the ADEA as a private "employer", 29 an entity must be
engaged in an industry affecting commerce.
The term "industry affecting commerce" under both Title VII 30 and the ADEA 31
means any business or activity in commerce in which a labor dispute would hinder or
obstruct a free flow of commerce, as such effects are describe in the Labor-Management
Reporting and Disclosure Act of 1959.
The term "commerce" under Title VII 32 and the ADEA 33 means trade, traffic,
transportation, transmission, or communication among the states, the District of
Columbia, or a possession of the United States.
The "affects commerce" jurisdictional requirement is liberally construed, and as an
obstacle is very low, has little force, and rarely poses a bar to suit. The requirement is
met if a business is in a class of activity that as a whole affects commerce. 34
Furthermore, an "industry affecting commerce" is not limited to commercial enterprises,
but also extends to nonprofit or charitable activities that affect commerce. 35
On its effective date, 36 the Americans with Disabilities Act will adopt the same
definitions of "commerce" and "industry affecting commerce" that are contained in Title
VII. 37
Footnotes
Footnote 29. 40.
Footnote 30. 42 USCS 2000e(h).
Footnote 31. 29 USCS 630(g).
Footnote 32. 42 USCS 2000e(g).
Footnote 33. 29 USCS 630(h).
Footnote 34. EEOC v Ratliff (1990, CA9) 53 BNA FEP Cas 267, 53 CCH EPD 40018.
Footnote 35. Martin v United Way of Erie County (1987, CA3) 829 F2d 445, 44 BNA
FEP Cas 1593, 44 CCH EPD 37472.
Footnote 36. 44.
44 Required number of employees for coverage as an "employer"

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A private employer is covered by Title VII when it has at least 15, 38 and by the ADEA
when it has at least 20 39 employees for certain required time periods of employment.
40
Title VII merely states that an employee is an individual employed by an employer, with
some listed exceptions. 41
The Sixth Circuit has said that Congress intended to include all workers subject to the
harms Title VII was designed to prevent, unless excluded by specific statutory exception
for purposes of determining the number of employees necessary for employer coverage.
42
Effective July 26, 1992, 43 the Americans with Disabilities Act (ADA) covers private
employers that employ 25 or more employees for specified time periods. 44 However,
on July 26, 1994, the number of employees needed for coverage under the ADA will drop
to 15. 45 The ADA defines an "employee" simply as an individual employed by an
employer. 46
Observation: The Equal Pay Act's prohibition against sex wage discrimination
covers most private employees subject to the Fair Labor Standards Act. 47 With
numerous exceptions, this generally includes employers with two or more employees
engaged in commerce or in the production of goods for commerce. 48
44 ----Required number of employees for coverage as an "employer"
[SUPPLEMENT]
Case authorities:
For purposes of determining whether employer has requisite number of employees to be
covered by Title VII, part-time employees may be counted as employees for given week,
even if they do not actually work all five days of that week. Vera-Lozano v International
Broadcasting (1995, CA1 Puerto Rico) 50 F3d 67, 67 BNA FEP Cas 667, 66 CCH EPD
43488.
Title VII plaintiff seeking to use single employer doctrine to show that employer has
requisite number of employees to come within coverage of Title VII may not rely on
totality of relationships between various subsidiaries of common parent, but must
establish sufficiently close relationship between hiring entity and one or more related
entities; thus, relationships between any two non-hiring entities are irrelevant. Kellett v
Glaxo Enters. (1994, SD NY) 66 BNA FEP Cas 1071, 2 BNA WH Cas 2d 884.
Common-law agency test, rather than hybrid test (combination of traditional test for
common-law agency with modern economic realities), is to be applied to determine
whether someone is employee for purposes of ADEA. Cox v Master Lock Co. (1993, ED
Pa) 815 F Supp 844.
Several entities which are owned by single employer that are part of integrated enterprise
may be combined for purposes of determining whether employer has minimum number
of employees for Title VII purposes; factors used in analyzing whether integrated
enterprise exists are interrelation of operations, common management, directors and
boards, centralized control of labor relations, and common ownership. EEOC v Eastern
Dev. Enters. (1994, ED Pa) 66 BNA FEP Cas 1449.
For purposes of determining whether employer has sufficient number of employees so as
to come within coverage of Title VII, payroll method, which looks at number of
employees maintained on employer's payroll within given week, is not appropriate
method for counting employees. EEOC v Metropolitan Educ. Enters. (1995, CA7 Ill) 60
For purposes of 42 USCS 2000e(b), and determining whether employer had requisite
number of employees, phrase current year means year in which alleged discrimination
occurred. United States EEOC v Metropolitan Educ. Enters. (1994, ND Ill) 65 BNA FEP
Cas 1643.
Officers of corporation who do not perform traditional employee duties cannot be
counted as employees when determining whether employer has sufficient number of
employees to come within Title VII. Edwards v Esau Invs. (1994, DC Kan) 66 BNA FEP
Cas 711.
Footnotes
Footnote 40. 45.
Footnote 41. 42 USCS 2000e(f).
CCH EPD 33702.
Footnote 44. For a discussion of how long employees must be employed during a
calendar year to count toward the number of employees needed for coverage, see 45.
Footnote 45. 42 USCS 12111(5)(A).

Footnote 48. 29 USCS 203(r), (s).
45 How long must employees be employed to cover an employer

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For purposes of coverage, an employer 49 must have the required number of employees
50 for each working day, in each of 20 or more calendar weeks, in the current or
preceding calendar year, under Title VII, 51 the ADEA, 52 and the ADA. 53
A calendar year is defined as the period from January 1 to December 31 under both Title
VII 54 and under the ADEA. 55
The current calendar year is the year in which the alleged discrimination took place, not
the year in which the charge was filed. 56
Illustration: An employer that has ten employees for an entire calendar year is still
covered for violation of Title VII during that calendar year if it had 15 employees for
the required time period in the prior calendar year.
An employer also satisfies the Title VII coverage requirement if it only has 15 employees
in the calendar year in which the alleged discrimination occurred, but not in the
preceding calendar year. 57
Illustration: An employer that has ten employees on April 1, the date of the alleged
discrimination, but hires on June 1 five new employees who remain on the payroll for
the rest of that year, is covered by Title VII 20 weeks after June 1.
Observation: If an employee in the above circumstances files a charge with the

EEOC on May 1, the Commission will not be able to make an accurate determination
of jurisdiction over the charge until 19 weeks prior to December 31, if the employer
still does not have 15 employees, or until 20 weeks after an employer acquires its 15th
employee.
Caution: The 20-week requirement does not have to run consecutively. Thus, an
employer that has 15 employees for ten weeks in January and February and for ten
weeks in November and December, but only ten employees for the remainder of a year,
is still covered by Title VII.
Observation: Since the duration of employee tenure for private employer coverage
purposes under the ADEA is the same as that for Title VII, the precedent established
under Title VII with respect to computing such time periods will also be applicable to
ADEA proceedings.
45 ----How long must employees be employed to cover an employer
[SUPPLEMENT]
Case authorities:
For purposes of 42 USCS 2000e(b), "twenty or more calendar weeks" referred to must
occur within twelve-month period between January 1 and December 31. Jensen v
Johnson County Youth Baseball League (1993, DC Kan) 838 F Supp 1437, 63 BNA FEP
Cas 851, 1 BNA WH Cas 2d 1436.
Footnotes
Footnote 49. 40.
Footnote 50. 44.
Footnote 54. Dumas v Mt. Vernon (1980, CA5) 612 F2d 974, 22 BNA FEP Cas 319, 22
CCH EPD 30715.
Footnote 55. McGraw v Warren County Oil Co. (1983, CA8) 707 F2d 990, 32 BNA FEP
Cas 1801, 32 CCH EPD 33626.
Footnote 56. EEOC Decision No. 76-10, 8/14/75.
Footnote 57. Slack v Havens (1975, CA9) 522 F2d 1091, 11 BNA FEP Cas 27,10 CCH
EPD 10343.
46 Necessity of employment relationship in calculating employees for employer

coverage
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Whether a person will be counted as an employee for purposes of determining the
number of employees necessary for employer coverage is a decision that must be made in
the context of the employer-employee relationship. For example, a person who
considered herself a volunteer, but was selected, employed, controlled, trained, and paid
by the employer, was an employee for purposes of Title VII coverage. 58

Likewise, a
resident intern in a graduate medical educational program was also an employee of the
medical college, because she received monetary compensation for services, including
traditional employee benefits, and performed her work under the employer's direct or
indirect supervision and control. 59
However, for purposes of calculating employer coverage under Title VII, no traditional
employer-employee relationship existed between:
partners in an accounting 60 or law firm; 61
shareholders in a professional corporation; 62
directors of an employer union's executive board, who all worked for other employers;
63
a nonprofit corporation, organized for the purposes of sanctioning rodeo barrel races,
and its membership. 64
Furthermore, because no employer-employee relationship exists between licensing
agencies and applicants, Title VII does not cover a state board of dental examiners, 65
state board of veterinary medical examiners, 66 a state board of bar examiners, 67 or a
commission with licensing power to control access to pier guard jobs. 68
In contrast, shareholders in a professional corporation were deemed employees for
purposes of determining whether the corporation was covered by the ADEA. A
professional corporation is unique in permitting professionals, such as doctors or lawyers,
to employ themselves. 69
The questions of whether 70 and by whom 71 an employee is paid are often involved
in determining if he is to be counted for purposes of employer coverage, and are
separately discussed elsewhere. 72
46 ----Necessity of employment relationship in calculating employees for employer
coverage [SUPPLEMENT]
Case authorities:
Police sergeant was not in employer-employee relationship with dispatcher, and therefore
was not liable under Title VII, irrespective of plaintiff's attempts to characterize
sergeant's supervisory authority in her complaint. Ball v Renner (1995, CA10 Wyo) 54
F3d 664, 67 BNA FEP Cas 1739.
Members of defendant bank's board of directors were not employees for purposes of Title
VII, since directors were present at bank only for monthly meetings, involvement of
board members with day-to-day affairs of bank was limited to phone calls regarding such
matters as policy decisions or major loans, and salary of board members consisted of
twenty five dollars per meeting. Reith v Swenson (1993, DC Kan) 63 BNA FEP Cas 885,
claim dismissed, summary judgment den (DC Kan) 1993 US Dist LEXIS 9316.
Footnotes
Footnote 58. McClure Salvation Army (1972, CA5) 460 F2d 553, 4 BNA FEP Cas 490, 4
CCH EPD 7719, cert den 409 US 896, 34 L Ed 2d 153, 93 S Ct 132, 5 BNA FEP Cas
46, 5 CCH EPD 7994.
Footnote 59. EEOC Decision No 88-1 (1988) 47 BNA FEP Cas 1887, CCH EEOC Dec
6870.
Footnote 60. Burke v Friedman (1977, CA7) 556 F2d 867, 15 BNA FEP Cas 34, 14 CCH
EPD 7629.
Footnote 61. Hishon v King & Spalding (1982, CA11) 678 F2d 1022, 29 BNA FEP Cas
51, 29 CCH EPD 32840, revd on other grounds 467 US 69, 81 L Ed 2d 59, 104 S Ct
Footnote 62. EEOC v Dowd & Dowd, Ltd. (1984, CA7) 736 F2d 1177, 34 BNA FEP Cas
1815, 34 CCH EPD 34468.
Footnote 63. Chavero v Local 241, Division of Amalgamated Transit Union (1986, CA7)
787 F2d 1154, 40 BNA FEP Cas 766, 39 CCH EPD 36023.
Footnote 64. Graves v Women's Professional Rodeo Assn. (1990, CA8) 907 F2d 71, 53
Footnote 65. Haddock v Board of Dental Examiners (1985, CA9) 777 F2d 462, 39 BNA
Footnote 66. George v New Jersey Bd of Veterinary Medical Examiners (1986, CA3)
Footnote 67. Delgado v McTighe (1977, ED Pa) 442 F Supp 725, 19 BNA FEP Cas 557.
Footnote 68. EEOC v Waterfront Com. of New York Harbor (198 SD NY) 665 F Supp
197, 44 BNA FEP Cas 217.
Footnote 69. Gorman v North Pittsburgh Oral Surgery Associates, Ltd. (1987, WD Pa)
664 F Supp 212, 45 CCH EPD 37734.
Footnote 70. 49.
Footnote 71. 50.
Footnote 72. For a discussion of whether a person is protected under Title VII due to the
establishment or lack of an employment relationship, including the discussion of the
statute's protection of independent contractors, see 110 et seq.
47 Part-time employees as counting for purposes of private employer coverage
View Entire Section

An employee does not have to be scheduled to work an entire work day in each of the 20
calendar weeks 73 in order to be counted for purposes of private employer coverage
under Title VII. Thus, employees who were only scheduled to work two hours each work
day were included in the employer coverage computation. 74
Observation: Since the ADEA's statutory language is identical to Title VII for
purposes of calculating the required time period for employer coverage with respect to
employees who appear at work, and since both statutes are to be construed liberally to
effectuate their nondiscriminatory purposes, 75 it is reasonable to assume that the
ADEA will be construed in conformity with Hornick. 76
Footnotes
Footnote 73. 45.
Footnote 74. Hornick v Duryea (1980, MD Pa) 507 F Supp 1091, 24 BNA FEP Cas 482,
25 CCH EPD 31569.
Observation: This aspect of private employer coverage under job discrimination

laws has its greatest impact on small businesses which must employ a significant
number of regular part-time employees in order to maintain long hours. Small
employers of this sort should be on notice that their employment practices are subject
to Title VII.
Footnote 75. 41.
Footnote 76. Hornick v Duryea (1980, MD Pa) 507 F Supp 1091, 24 BNA FEP Cas 482,
25 CCH EPD 31569.
48 Employees on the payroll who do not appear at work as counting for purposes
of private employer coverage
View Entire Section
The EEOC has taken the position that the criterion for counting employees for employer
coverage purposes under both Title VII and the ADEA is whether the employee was
maintained on the payroll during any given week, rather than whether the employee
reported to work every day of the work week. The agency also finds that employees
temporarily filling in for regular employees should be counted if they are actually on the
payroll. 77 In conformity with this position, courts have also held that an employee who
is not scheduled to work each work day in a particular calendar week, but who remains
on the payroll during that week should have his tenure is counted for the entire week for
employer coverage purposes under Title VII, 78 and the ADEA. 79 Otherwise, a
business that operated almost entirely with part-time labor could escape the
discriminatory prohibitions of the respective statutes, despite the number of workers
actually employed. These courts note that if Congress had intended to exclude part-time
or seasonal labor, it would have made that intent clear.
Similarly, another court has held that for purposes of calculating employees for employer
coverage under Title VII, persons on unpaid leave of absence are considered
"employees," because they are still susceptible to discriminatory acts. 80
However, the Seventh and Eighth Circuits have held that under the ADEA, workers paid
hourly are not to be counted in determining whether an employer has met the basic
standards for coverage if they do not work (or if they are not on paid leave) on each work
day in the requisite number of calendar weeks. 81 A district court in the Sixth Circuit
has also held that employees may not be counted for purposes of employer coverage
under the ADEA if they do not work on each day of the requisite number of calendar
weeks. 82
Also disagreeing with the EEOC's position, another court has found that employees
filling in as short-term replacements for workers absent on a vacation or day off are not
counted for Title VII employer coverage purposes. 83
Footnotes
Footnote 77. EEOC Policy Statement No. N-915.052, 4/20/90.
Footnote 78. Thurber v Jack Reilly's, Inc. (1983, CA1) 717 F2d 633, 32 BNA FEP Cas
1511, 32 CCH EPD 33810, cert den 466 US 904, 80 L Ed 2d 153, 104 S Ct 1678, 34
BNA FEP Cas 544, 33 CCH EPD 34228; Pedreyra v Cornell Prescription Pharmacies,
Inc. (1979, DC Colo) 465 F Supp 936, 21 BNA FEP Cas 1207, 19 CCH EPD 9009, 86
CCH LC 33779.
Footnote 79. Gorman v North Pittsburgh Oral Surgery Associates, Ltd. (1987, WD Pa)
664 F Supp 212,45 CCH EPD 37734.
Footnote 80. Formica v Galantino (1989, ED Pa) 1989 US Dist LEXIS 10256.
Footnote 81. Zimmerman v North American Signal Co. (1983, CA7) 704 F2d 347, 31
BNA FEP Cas 634, 31 CCH EPD 33486; McGraw v Warren County Oil Co. (1983,
CA8) 707 F2d 990, 32 BNA FEP Cas 1801, 32 CCH EPD 33626.
Footnote 82. EEOC v Argent Industries, Inc. (1989, SD Ohio) 746 F Supp 705.
Footnote 83. Takeall v WERD, Inc. (1979, MD Fla) 23 BNA FEP Cas 947, 19 CCH EPD
9035.
49 Unpaid workers as counting for purposes of private employer coverage

View Entire Section
In order for a person to be counted in determining the number of employees necessary for
employer coverage under Title VII, 84 an employer-employee relationship must exist.
85 Thus, a person who considered herself a volunteer, but was selected, employed,
controlled, trained, and paid by the employer, was an employee for purposes of Title VII
coverage. 86
However, unpaid volunteers are not employees under Title VII, because they are not
susceptible to discriminatory practices and the remedy of backpay would be
inappropriate for them. 87
Based on similar reasoning, two family members who worked full-time without salary
were employees for the purposes of Title VII, because of the reasonable assumption that
they derived some form of support from the operation of the company. 88
Footnotes
Footnote 84. 44.
Footnote 85. 45.
Footnote 86. McClure v Salvation Army (1972, CA5) 460 F2d 553, 4 BNA FEP Cas 490,
4 CCH EPD 7719, cert den 409 US 896, 34 L Ed 2d 153, 93 S Ct 132, 5 BNA FEP
Cas 46, 5 CCH EPD 7994.
Footnote 87. Smith v Berks Community Television (1987, ED Pa) 657 F Supp 794, 43
Footnote 88. EEOC v Pettegrove Truck Service, Inc. (1989, SD Fla) 716 F Supp 1430, 49
50 Are workers paid by another employer counted in calculating employer

coverage
View Entire Section
Even when entities are not joint employers, 89 the common-law "loaned servant"
doctrine may permit an employee who is paid by one employer to be considered an
employee of another firm when services are shared. Under this doctrine, the right to
control the means and manner of job performance is the most significant element in
determining whether an employment relationship exists. 90 Thus, a temporary worker
supplied to a business firm by the personnel firm that paid the worker, was also
considered all employee of the business firm, which retained control over the means and
manner of his job performance, and the right to discharge him and request a replacement.
91
Observation: Application of the "loaned servant" doctrine extends to the long-term

leasing of workers as well as temporary employees. Personnel leasing is a new trend
that is used by some firms to avoid the administrative overhead of the employment
relationship. Under Amarnare, a business that leases its workers may avoid the
overhead cost of personnel, pay, and benefits administration, but not the responsibility
of complying with Title VII, if the requisite number of leased workers 92 is retained.
Footnotes
Footnote 89. 60.
Footnote 90. As to the necessity of an employment relationship in calculating the number
of employees for employer coverage, see 46.
Footnote 91. Amarnare v Merrill Lynch, Pierce, Fenner & Smith, Inc. (1984, SD NY)
611 F Supp 344, 36 BNA FEP Cas 6, 35 CCH EPD 34909, affd (CA2) 770 F2d 157, 47
BNA FEP Cas 1360.
Footnote 92. As to the required number of employees for coverage as an "employer,"
generally, see 44.
51 Are employees at different establishments counted in calculating employer

coverage
View Entire Section
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If an employer has less than the required number of employees for Title VII coverage 93
in each of its establishments, but the establishments are part of an integrated enterprise,
the total number of employees at each establishment may be combined for the purposes
of determining whether the employer is covered. 94
Whether several establishments may be combined to constitute the required number of
employees necessary for purposes of coverage under Title VII involves a review of
factors first promulgated under the National Labor Relations Act that involve the degree
of:
interrelation between the operations;
common management;
centralized control of labor relations;
common ownership or financial control;
interchange of employees.
All factors must be considered, and no one alone is controlling. 95
The size of a domestic employer's related operations overseas 96 is relevant in
determining whether it is large enough, when combined with the foreign facility as an
integrated enterprise, to be covered by Title VII with respect to discrimination alleged to
have occurred within the United States. 97
51 ----Are employees at different establishments counted in calculating employer
coverage [SUPPLEMENT]
Case authorities:
Under appropriate circumstances, multiple offices may constitute single "establishment"
for purposes of 29 USCS 206(d)(1); however, court will presume that multiple offices
are not single establishment unless unusual circumstances are demonstrated. Meeks v
Computer Assocs. Int'l (1994, CA11 Fla) 15 F3d 1013, 64 BNA FEP Cas 258, 1 BNA
WH Cas 2d 1544, 63 CCH EPD 42883, 127 CCH LC 33065, 7 FLW Fed C 1275.
Footnotes
Footnote 93. 44.
Footnote 94. Williams v New Orleans S.S. Asso. (1972, ED La) 341 F Supp 613, 4 BNA
Annotation: Propriety of treating separate entities as one for determining number of
employees required by Title VII of Civil Rights Act of 1964 (42 USCS 2000e(b)) for
action against "employer", 49 ALR Fed 900.
Footnote 95. Baker v Stuart Broadcasting Co. (1977, CA8) 560 F2d 389, 15 BNA FEP
Cas 394, 14 CCH EPD 7775, 49 ALR Fed 894; McKenzie v Davenport- Harris Funeral
Home (1987, CA11) 834 F2d 930, 45 BNA FEP Cas 959, 45 CCH EPD 37695, 107
CCH LC 35004.
Footnote 96. 52.
Footnote 97. Johnson v Cloos Int'l, Inc. (1991, ND Ill) 55 BNA FEP Cas 1534, 57 CCH
EPD 41024.
52 Coverage of employers operating abroad

View Entire Section
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Entities that employ or control the employment of United States citizens in foreign
countries are covered by both Title VII 98 and the ADA 99 as amended by the Civil
Rights Act of 1991. 1 The ADEA likewise covers such entities. 2
All three statutes cover foreign corporations if they are controlled by an American
employer. 3
To determine whether an employer "controls" a corporation, the
following factors must be considered:
the interrelationship of operations;
common management;
centralized control of labor relations; and
common ownership or financial control of the employer and the corporation. 4
Title VII and ADA prohibitions do not apply if compliance with either statute would
cause the employer to violate the law of the foreign country in which the workplace is
located. 5
Before Title VII and the ADA were amended to cover extraterritorial employment, the
Supreme Court had held that Title VII did not protect Americans working abroad for U.S.
firms, since nothing in Title VII evinced a clearly expressed congressional intent to
legislate beyond the United States' borders. 6 The extraterritorial employment
provisions do not apply to conduct occurring before November 21, 1991. 7
52 ----Coverage of employers operating abroad [SUPPLEMENT]
Practice Aids: Extraterritorial Employment Standards of the United States: The
Regulation of the Overseas Workplace, by James Zimmerman, (New York: Greenwood
Publishing Group, Inc., 1992. 216 pp. $49.95), (Reviewed), 14 Comp Labor L 514
(1993).
Extraterritorial application of title VII and the Americans with Disabilities Act: Have
statute, will travel, 36 S Tex LR 1:191 (1995).
Title VII and its ability to bind American companies acting outside the United States, 16
Suffolk Trans LJ 593 (1993).
Extraterritorial application of Title VII: The foreign compulsion defense and principles of
international comity, 27 Vand J Transnat L 4:869 (1994).
Case authorities:
Foreign corporations are not subject to prohibitions of ADEA (29 USCS 623(h)(2)),
and 29 USCS 630(f), which provides that employee for ADEA purposes includes any
individual who is citizen of U.S. employed by employer in workplace in foreign country,
does not bring foreign corporations, which are not controlled by American employers,
within scope of ADEA; 630(f) only extends protection of ADEA to American citizens
who work outside of U.S. for American employers. Robinson v Overseas Military Sales
Corp. (1993, ED NY) 62 BNA FEP Cas 759.
Footnotes
Footnote 1. P.L. 102-166 109(a).
Annotation: Actionability, under federal and state antidiscrimination legislation, of
foreign employer's discriminating in favor of foreign workers in hiring and other
employment matters, 84 ALR Fed 114.
Footnote 2. 29 USCS 623(h)(1).
Footnote 3. 42 USCS 2000e-1(c)(1); 42 USCS 12111(c)(2)(A); 29 USCS 623(h)(1).
Footnote 4. 42 USCS 2000e-1(c)(3); 42 USCS 12112(c)(2)(C); 29 USCS 623(h)(3).
Footnote 5. 42 USCS 2000e- 1(b), 42 USCS 12112(c).
Footnote 6. EEOC v Arabian American Oil Co. (1991, US) 113 L Ed 2d 274, 111 S Ct
Footnote 7. P.L. 102-166 109(c).
53 Coverage of foreign employers operating in the United States

View Entire Section
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Title VII clearly covers foreign companies with respect to charges of discrimination
pertaining to the employment of U.S. citizens in the United States. 8
Similarly, corporations wholly owned by foreign governments that operate within the
United States are employers subject to the provisions of the ADEA, 9 despite the
specific liability provisions in the statute pertaining to foreign corporations. 10
Furthermore, the EEOC takes the position that the ADEA applies equally to foreign
employers and domestic employers operating in the United States, absent a treaty or other
foreign policy concerns. 11
Subsidiaries of foreign corporations doing business in the United States have
unsuccessfully attempted to claim exemptions under Title VII and the ADEA based on
the provisions of Treaties of Friendship, Commerce, and Navigation. Those provisions
allowed a foreign employer that was also domestically incorporated to exercise certain
prerogatives regarding the hiring of specialists, managers, and technical experts. In cases
of Japanese 12 and Dandish 13 corporations, courts have ruled that such treaties did
not provide exemptions from Title VII's antidiscrimination provisions.
However, where a Treaty of Friendship, Commerce, and Navigation gave a Korean
company doing business in the United States the right to replace an "executive" with a
foreign national of Korea, a conflict arose between the treaty and the rights of a displaced
executive under both Title VII and the ADEA. The Third Circuit resolved the conflict by
holding that since the treaty permits the selection of citizens of a foreign country by the
corporation for certain positions, the exercise of this treaty right can compose an
adequate defense to any adverse impact challenge raised under Title VII or the ADEA.
However, the treaty right was not intended to permit race, color, national origin, sex, or
age discrimination by companies of a foreign company in the United States. Therefore,
intentional discrimination claimants must be allowed to demonstrate, if possible, that the
citizenship selection under the treaty was, in fact, a pretextual reason for committing
intentional discrimination forbidden by Title VII or the ADEA. 14
Even under Sumitomo Shoji America, 15 when a foreign party requires its
U.S.-incorporated subsidiary to engage in discriminatory conduct, the subsidiary may
exempt itself from Title VII by asserting the parent's treaty rights to employ executives of
a particular nationality in the U.S. If the subsidiary were forbidden to give preferential
treatment to executives sent to it by the parent, then the parent would in effect be
prevented from exercising its treaty rights to have executives born outside the U.S.
manage the subsidiary, and the treaty would lose all meaning. 16
Foreign corporations doing business in the United States have failed to secure immunity
from Title VII under the Foreign Service Immunities Act (28 USCS 1602 et seq.). The
EEOC found that race and national origin charges could be processed against such a
corporation for its failure to hire a Jamaican national, since the clerical position at issue
was in furtherance of commercial activity of the employer, which was outside of the
FSIA's scope of protection. Only noncommercial, cultural, literary, and educational
activities undertaken by a foreign corporation, or employment in civil service,
diplomatic, or military capacities, would be entitled to immunity under the FSIA. 17
Also, a protocol between the United States and a foreign country that authorized an
airline owned by the foreign country to bring in and employ its own citizens at locations
in the United States did not exempt the foreign airline from coverage under Title VII. The
language of the protocol indicated that each country was to obey the other's labor laws
when operating in each other's territory. Therefore, a charge of national origin
discrimination by a U.S. citizen against the airline could proceed. 18
53 ----Coverage of foreign employers operating in the United States
[SUPPLEMENT]
Practice Aids: Post-war friendship, commerce and navigation treaties-interpreting the

right of foreign treaty employers in the United States to engage in selective
employment discrimination "of their choice": Is it justified? 6 DePaul Bus LJ 101
(1993).
Reconsidering the conflict between Title VII and treaties of friendship, commerce and
navigation: The Seventh Circuit decision in Fortino v. Quasar, 13 J L & Com 179 (1993).
International law Friendship, Commerce and Navigation treaties American subsidiary
of Japanese corporation protected by treaty from employment discrimination action,
Fortino v. Quasar Co., 950 F.2d 389 (1991), 16 Suffolk Trans LJ 774 (1993).
Tilting the playing field: Japan's unwarranted advantage under the Civil Rights Act of
1991 and Fortino v. Quasar Co. [950 F.2d 389 (1991)], 28 Tex Internat LJ 391 (1993).
Case authorities:
Article VIII of United States-Japan Treaty of Friendship, Commerce and Navigation
(1953, 4 UST 2063 at 2070) permits Japanese companies to discriminate in favor of their
fellow citizens because of their citizenship, and domestic corporation that is subsidiary of
Japanese company may assert such Treaty right on behalf of its parent company; thus,
employee of domestic corporation cannot state cause of action under Title VII against
corporation where complained of employment decisions were dictated by parent
company. Papaila v Uniden Am. Corp. (1995, CA5 Tex) 51 F3d 54, 67 BNA FEP Cas
993, 66 CCH EPD 43529.
Footnotes
Footnote 8. Ward v W & H Voortman, Ltd. (1988, MD Ala) 685 F Supp 231, 46 BNA
FEP Cas 1490.
Footnote 9. Gazder v Air India (1983, SD NY) 574 F Supp 134, 33 BNA FEP Cas 427,
33 CCH EPD 33985.
Footnote 10. Helm v South African Airways (1987, SD NY) 44 BNA FEP Cas 261, 43
CCH EPD 37303.
Footnote 12. Sumitomo Shoji America, Inc. v Avagliano (1982) 457 US 176, 72 L Ed
2d 765, 102 S Ct 2374, 28 BNA FEP Cas 1753, 29 CCH EPD 32782.
Footnote 13. Linskey v Heidelberg Eastern, Inc. (1979, ED NY) 470 F Supp 1181, 19
Footnote 14. MacNamara v Korean Air Lines (1988, CA3) 863 F2d 1135, 48 BNA FEP
Cas 980, 49 CCH EPD 38756.
Footnote 15. Sumitomo Shoji America, Inc. v Avagliano (1982) 457 US 176, 72 L Ed
Footnote 16. Fortino v Quasar Co. (1991, CA7) 950 F2d 389, 57 BNA FEP Cas 712, 57
CCH EPD 41117.
Footnote 17. EEOC Decision No. 85-11 (1985) CCH EEOC Dec 6852.
Similarly, Title VII applied to a discriminatory refusal of employment aboard a foreign
vessel when: (1) the place of the wrong was the United States; (2) although the ship was
flying the Panamanian flag and was required to register in that country, it appeared to
have no other connections to it; (3) the U.S. was the plaintiff's domicile; (4) the ship
owner was registered in the Cayman Islands but had little contact there; (5) there was no
place of contract, since the plaintiff was never hired; (6) Panamanian law did not provide
a remedy for the plaintiff's claim, and; (7) the ship had substantial and continuing
contacts with the United States, where it maintained its principal office and obtained
most of its income from United States citizens boarding it in U.S. ports. EEOC v
Bermuda Star Line Inc. (1990, MD Fla) 744 F Supp 1109, 53 BNA FEP Cas 836, 54
CCH JEPD 40164.
For a discussion of the coverage of foreign employers that operate primarily, but not
exclusively, outside of the United States, such as foreign vessels, see 52.
54 Exemption for private membership clubs

View Entire Section
A bona fide private membership club (other than a labor organization) that is exempt
from taxation under 501(c) of the Internal Revenue Code 19 is exempt from the
definition of "employer" under Title VII, 20 and the ADA. 21 A private membership
club is an association of persons that has social or recreational purposes or is designed to
promote some common literary, scientific, or political objective. 22 The EEOC has
stated that this exemption will be narrowly construed, and employers qualify for it only if
the characteristics of a private club are present. These characteristics include
separateness from the general public, exercise of control over internal procedure by the
club's members, and absence of support by public funds. 23
The EEOC has also issued a policy statement listing the factors a private club must meet
to qualify for the Title VII exemption. In short, the organization must be a club, must be
legitimate rather than a sham, must be private as opposed to public, and must require
some meaningful conditions of limited membership. The policy statement explicitly
adopted the definition of "club" set forth in Quijano 24 and evaluates the private aspect
of the organization based on the extent to which: (1) facilities are limited to members
and guests; (2) the organization is controlled or owned by its membership; (3) there is
publicity to the general public concerning either solicitation of members or promoting
use of services and facilities. 25
State aspects: Title VII's exemption of private membership clubs does not prevent
states from exercising their power to include these clubs in their antidiscrimination
statutes. Thus, a state FEP law's prohibition of hiring discrimination on the basis of
sex by a private membership club that otherwise would have been exempt under Title
VII was not preempted by federal law, because inclusion of private clubs under state
law did not hinder Title VII's primary purpose of eliminating employment
discrimination. 26
For Title VII purposes, a determination by the Internal Revenue Service that a defendant
was exempt from paying federal income tax was not binding upon a court's evaluation of
whether the defendant was a private club, because the determination was not made in a
contested proceeding, and the amount of factfinding performed by the IRS was unknown.
Nor was the court bound by the EEOC's decision that the defendant was a private club.
27
Footnotes
Annotation: Validity, construction, and application of provisions of 702 of Civil
Rights Act of 1964 (42 USCS 2000e-1), exempting activities of religious
organizations from operation of Title VII Equal Employment Opportunity provisions,
67 ALR Fed 874.
Footnote 21. 42 USCS 12111(5)(B)(ii).
Footnote 22. Quijano v University Federal Credit Union (1980, CA5) 617 F2d 129, 22
Footnote 23. EEOC Decision No. 75-041 (1974) CCH EEOC Decisions 6485; EEOC
Decisions No. 78-47 (1978).
Footnote 24. Quijano v University Federal Credit Union (1980, CA5) 617 F2d 129, 22
Footnote 25. EEOC Compliance Manual 2135.
Based on the EEOC's policy statement, a club that did not have a meaningful limitation
on the size of its membership, gave guests and members essentially the same privileges,
and required members only to have an undergraduate degree and to be at least 21 years
old, did not qualify for the narrow private membership club exemption. EEOC v
University Club of Chicago (1991, ND Ill) 763 F Supp 985, 55 BNA FEP Cas 1303, 56
CCH EPD 40776.
All the requirements under 42 USCS 2000e(b) were met by a bridge club dedicated to
the promotion of playing bridge and other games of skill. Prospective members had to be
sponsored by a current member and seconded by another member, and admission was
limited based on an evaluation of a candidate's ethical reputation and skill at bridge,

standards of dress and deportment, and financial commitment. Further, admission was
open only to those who were approved by the board of directors, subject to a veto by five
members. Baptiste v Cavendish Club, Inc. (1987, SD NY) 670 F Supp 108, 44 BNA FEP
Cas 1684.
Footnote 26. Bohemian Club v Fair Employment & Housing Com. (1986, 1st Dist) 187
Cal App 3d 1, 231 Cal Rptr 769, 42 CCH EPD 36729.
Footnote 27. Gordon v Quivera, Inc. (1989, DC Kan) 1989 US Dist LEXIS 13173.
55 Exemption of Indian tribes

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The Americans with Disabilities Act expressly exempts Indian tribes from coverage as an
"employer." 28
Although the language of the ADEA neither expressly includes nor excludes Indian tribes
from coverage, the lack of a clear indication of Congressional intent to abrogate Indian
sovereignty rights means that the statute should be construed to avoid interference with
Indian tribal government. Thus, the Cherokee Nation is not subject to the ADEA,
because enforcement of the act would directly interfere with the Nation's treaty-protected
right of self- government. 29 However, nontribal employers on reservations are subject
to the ADEA. 30
55 ----Exemption of Indian tribes [SUPPLEMENT]
Practice Aids: Federal preemption and tribal employment laws, 44 Lab LJ 564 (1993).
Application of federal and state labor and employment laws to Indian tribal employers,
25 Univ Memphis LR 4:1365 (1995).
Application of the ADEA to Indian tribes, 46 Wash U J Urb & Cont L 381 (1994).
Case authorities:
ADEA does not apply to Indian tribe where plaintiff is member of tribe, tribe is
employer, and employment is on reservation. EEOC v Fond du Lac Heavy Equipment &
Constr. Co. (1993, CA8 Minn) 986 F2d 246, 61 BNA FEP Cas 105, 60 CCH EPD
42039, reh, en banc, den (CA8) 1993 US App LEXIS 7003.
Footnotes
Footnote 28. 42 USCS 12111(5)(B)(i).

Footnote 29. EEOC v Cherokee Nation (1989, CA10) 871 F2d 937, 49 BNA FEP Cas
1074, 49 CCH EPD 38875.
Footnote 30. Myrick v Devils Lake Sioux Mfg. Corp. (1989, DC ND) 718 F Supp 753,
50 BNA FEP Cas 517.
b. Liability of Employers and Agents for Discriminatory Acts [56-63]
56 Employer liability for discrimination by supervisors

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Under job discrimination laws, an employer can be held liable not only for the actions it
takes directly, but also for the discriminatory acts of its supervisory personnel. 31
Liability for discrimination by supervisors is imputed to the employer when it:
either overtly or covertly authorizes, acquiesces in, or ratifies a supervisor's unlawful
conduct; 32
holds a supervisor out as having the authority to perform particular acts which are
exercised in a discriminatory fashion, even if he does not have such authority; 33
fails to investigate complaints of discriminatory conduct by supervisors; 34
fails to monitor adequately or investigate a supervisor's conduct that affects equal
employment opportunity; 35
acts on a committee recommendation or decision which is tainted by a supervisor's
discriminatory input. 36
has an established and announced procedure allowing employees to inspect, challenge,
and correct their supervisors' evaluations; 37
takes an adverse employment action on the basis of information obtained independently
of the supervisor's discriminatory evaluation. 38
Observation: Not only the employer, but also the supervisor may be liable for the
supervisor's discriminatory actions, when the supervisor is acting as the employer's
agent. 39
However, a supervisor's unauthorized discriminatory conduct may not be imputed to the
employer when the employer promptly undertakes measures calculated to remedy the
discriminatory condition. 40
56 ----Employer liability for discrimination by supervisors [SUPPLEMENT]

Practice Aids: Personal liability for violations of Title VII: Thirty years of indecision,
46 Baylor LR 419 (1994).
Discrimination by managers and supervisors: Recognizing agent liability under Title VII,
143 U Pa LR 2:571-594 (1995).
Employment discrimination: Individual liability for supervisory employees under Title
VII and the ADEA, 17 W N Eng LR 1:143 (1995).
Case authorities:
Union is responsible for harassing acts of its agents and supervisory employees, even if
acts were not authorized by union. Johnson v Teamsters Local Union No. 559 (1995, DC
Mass) 67 BNA FEP Cas 1150.
Court erred in 42 USCS 1983 action by employee alleging sexual harassment, where
instructions may have resulted in jury finding supervisor liable on theory of respondeat
superior, which was not available in 1983 claim. Gierlinger v New York State Police
(1994, CA2 NY) 15 F3d 32, 63 CCH EPD 42826.
Employer was liable for vice president's sexually harassing behavior, where president of
employer (who was vice president's father) and office manager/corporate secretary of
employer (who was vice president's aunt) both knew of harassment and failed to take
remedial action. EEOC v A. Sam & Sons Produce Co. (1994, WD NY) 872 F Supp 29,
66 BNA FEP Cas 1791.
College employees below administration level who participate in promotion and tenure
process are agents of college for purposes of Title VII, so long as they participate in
promotion and tenure process to such extent that they significantly control or influence
decisions which govern some aspect of compensation, terms, conditions or privileges of
employment. Dutt v Dleaware State College (1994, DC Del) 63 BNA FEP Cas 1341.
Case law regarding sexual harassment under Title VII can be applied to claims of racial
harassment in workplace under 42 USCS 1981; thus, where employer implements
timely and adequate corrective measures after harassing conduct has come to its
attention, vicarious liability should be barred regardless of specific motivation for
wrongdoing or particular cause of action. Dennis v County of Fairfax (1995, CA4 Va) 55
F3d 151, 67 BNA FEP Cas 1681.
"Agent" under ADEA must be agent with respect to employment practices. Deal v State
Farm County Mut. Ins. Co. (1993, CA5 Tex) 5 F3d 117, 63 BNA FEP Cas 269.
Agent of employer can be held liable under Title VII only in his official capacity, not as
individual. Desormeaux v Wackenhut Servs. (1994, ED La) 66 BNA FEP Cas 574.
Only when supervisor is acting in official capacity can he be deemed agent of employer
for purposes of Title VII liability. Ajaz v Continental Airlines (1994, SD Tex) 156 FRD
145.
In order to establish employer liability in coworker discrimination case, Title VII plaintiff
must assert and prove existence of respondeat superior liability (under this theory,
employer is responsible for acts of sexual harassment in workplace where employer, or
its agents or supervisory employees, knows or should have known of conduct, unless it
can show that it took immediate and appropriate corrective action); however, term
respondeat superior, which connotes derivative liability, is incorrect label for coworker
harassment cases where employer is directly liable for its own negligence. Pierce v
Commonwealth Life Ins. Co. (1994, CA6 Ky) 40 F3d 796, 66 BNA FEP Cas 600.
In supervisor sexual harassment cases, individual who is acting as employer's agent is
deemed alter ego of employer, and employer is liable for his unlawful employment
practices without regard to whether employer actually knew, or should have known, of
individual's conduct. Pierce v Commonwealth Life Ins. Co. (1994, CA6 Ky) 40 F3d 796,
66 BNA FEP Cas 600.
Limitations on liability that are appropriate in context of sexual harassment cases
involving employer liability for creation of hostile work environment under doctrine of
respondeat superior are wholly inapplicable to discriminatory hiring context. Lam v
County assessor's alleged sexual harassment of former co-worker was not actionable until
he was appointed county assessor, because harassment of co-worker by fellow employee
without supervisory power over co-worker was insufficient to state 42 USCS 1983
equal protection claim absent allegation that employing entity had policy or custom of
allowing sexual harassment in workplace; however, events occurring before county
assessor became supervisor would provide relevant circumstantial evidence in regard to
later harassment claim. Noland v McAdoo (1994, CA10 Okla) 39 F3d 269, 66 BNA FEP
Cas 221.
Employer who does not actively engage in racial harassment may be liable under agency
principles. Bolden v PRC Inc. (1994, CA10 Kan) 43 F3d 545.
City may be derivatively liable for actions of one of its employee- agents without having
condoned or even having been aware of employee-agent's conduct. Lankford v City of
Hobart (1994, CA10 Okla) 64 BNA FEP Cas 1305.
Police officer employed by city who allegedly sexually harassed plaintiff police
dispatcher was not agent of city, despite plaintiff's contention that he acted as city's agent
in carrying out complained of acts of sexual discrimination. Ball v City of Cheyenne
(1993, DC Wyo) 64 BNA FEP Cas 286.
Co-employees of plaintiff who pursued hostile environment claim could not be held
liable under 42 USCS 1983, where co-employees were without supervisory authority
over plaintiff and did not use their state authority to create environment hostile to
plaintiff. Edwards v Wallace Community College (1995, CA11 Ala) 49 F3d 1517, 67
BNA FEP Cas 949, 8 FLW Fed C 1196.
Defendant bank was not liable to plaintiff former bank employee for intentional infliction
of mental distress, where basis of claim was bank's alleged failure to take disciplinary
action against vice president who had sexually harassed plaintiff; there was no evidence
that bank had actual or constructive knowledge of vice president's actions or his
likelihood to commit such acts at some time other than after they occurred, and record
did not reflect whether vice president was disciplined after bank president was informed
of situation. Zahorsky v Community Nat'l Bank (1994, Okla App) 883 P2d 198.
Under liberal construction of term "agent," immediate supervisors are employers when
delegated employer's traditional rights, such as hiring and firing; there can be no liability
under Title VII, however, for actions of mere coworkers. Garcia v Elf Atochem N. Am.
(1994, CA5 Tex) 28 F3d 446.
In action alleging that school district and town are liable for their employee's violations
of 504 of Rehabilitation Act (29 USCS 794), to extent that these claims are based on
implied private right of action under 504 and are not based on 42 USCS 1983,
plaintiffs are entitled to maintain claims against school district and town on respondeat
superior theory. Penney v Town of Middleton (1994, DC NH) 8 ADD 1321.
Footnotes
Footnote 31. Third CircuitCroker v Boeing Co. (Vertol Div.) (1977, ED Pa) 437 F
Supp 1138, 15 BNA FEP Cas 165, 16 CCH EPD 8185, affd, en banc (CA3) 662 F2d
Fourth CircuitFriend v Leidinger (1977, ED Va) 446 F Supp 361, 18 BNA FEP Cas
1030, 17 CCH EPD 8392, affd (CA4) 588 F2d 61, 18 BNA FEP Cas 1052, 18 CCH
EPD 8704.
Sixth CircuitMunford v James T. Barnes & Co. (1977, ED Mich) 441 F Supp 459, 17
Dist Col CircuitBarnes v Costle (1977) 183 App DC 90, 561 F2d 983, 15 BNA FEP
Cas 345, 14 CCH EPD 7755; EEOC Decision No. 71- 1442 (1971) 3 BNA FEP Cas
493, CCH EEOC Dec 6216.
Footnote 32. Hallquist v Max Fish Plumbing & Heating Co. (1987, DC Mass) 46 BNA
CCH EPD 37908; Friend v Leidinger (1977, ED Va) 446 F Supp 361, 18 BNA FEP
Cas 1030, 17 CCH EPD 8392, affd (CA4) 588 F2d 61, 18 BNA FEP Cas 1052, 18 CCH
EPD 8704.
Footnote 33. Gay v Board of Trustees (1979, CA5) 608 F2d 127, 23 BNA FEP Cas 1569,
21 CCH EPD 30457.
Footnote 34. Munford v James T. Barnes & Co. (1977, ED Mich) 441 F Supp 459, 17
Footnote 35. Lucero v Beth Israel Hospital & Geriatric Center (1979, DC Colo) 479 F
Supp 452, 21 BNA FEP Cas 266, 22 CCH EPD 30728.
Footnote 36. Shager v Upjohn Co. (1990, CA7) 913 F2d 398, 53 BNA FEP Cas 1522, 54
CCH EPD 40229.
Footnote 37. Woolery v Brady (1990, ED Mich) 741 F Supp 667, 53 BNA FEP Cas 913.
Footnote 38. Wilson v Stroh Cos. (1992, CA6) 952 F2d 942, 57 BNA FEP Cas 1155, 57
CCH EPD 41190.
Footnote 39. 63.
Footnote 40. Barnes v Costle (1977) 183 App DC 90, 561 F2d 983, 15 BNA FEP Cas 34,
14 CCH EPD 7755; EEOC Decision No. 70-326 (1969) CCH EEOC Dec 6079;
EEOC Decision No. 70-432 (1970) 2 BNA FEP Cas 460, CCH EEOC Dec 6130.
57 Employer liability for participating in discriminatory acts by a union

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Employers may be held liable when they knowingly participate in discrimination
committed by a union, such as when the employer knowingly accepts discriminatory job
referrals from a union. 41
57 ----Employer liability for participating in discriminatory acts by a union
[SUPPLEMENT]
Case authorities:
If Title VII (42 USCS 2000e et seq.) plaintiff has pointed to evidence sufficient to
discredit defendant employer's proffered reasons for adverse employment action, to
survive summary judgment, plaintiff need not also come forward with additional
evidence of discrimination beyond his or her prima facie case. Sheridan v E. I. duPont de
Nemours & Co. (1996, CA3 Del) 74 F3d 1439, 69 BNA FEP Cas 1705, 67 CCH EPD
43868, vacated, reh, en banc, gr (1996, CA3) 70 BNA FEP Cas 98.
Steamship association that represented stevedoring companies in negotiations with union
was not agent of such companies with respect to employment practices, since association
was not supervisory or managerial employee to whom employment decisions had been
delegated by companies. Barrow v New Orleans S.S. Ass'n (1994, CA5 La) 10 F3d 292.
Footnotes
Footnote 41. Jones v International Union of Operating Engineers (1981, SD Ill) 524 F
The independent liability of labor organizations for job discrimination law violations is
discussed at 77 et seq.
58 Employer's responsibility for employment agency's actions

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An employer's use of a private or state employment agency does not relieve the employer
of its responsibilities under federal job discrimination law to provide equal employment
opportunity. 42
Footnotes
Footnote 42. 29 CFR 1607.10A.
The independent liability of employment agencies for violations of job discrimination
laws is discussed at 83 et seq.
59 Effect of third-party involvement on employer's responsibility to refrain from

discrimination
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An employer cannot avoid liability for its discriminatory acts based merely on the
involvement or noncooperation of third parties For example, an employer having a
discriminatory fringe benefit plan cannot avoid liability by claiming that the suppliers of
those plans did not offer the employer a nondiscriminatory version. The employer must
either provide the benefit on its own, on a nondiscriminatory basis, or not provide the
benefit at all. 43
Therefore, an employer remains responsible for an unlawful benefit
plan that was provided by an insurance company, regardless of whether the company was
acting as the employer's agent. 44
However, to establish an employer's liability for the discriminatory programs offered by
third parties, the employer must affirmatively and actively participate in the program and
exert some control over its terms. Thus, an employer that only sponsored a credit union
and facilitated its membership and general operations, but did not participate in
establishing or maintaining its discriminatory benefit policy was not liable for the
unlawful consequences of that policy. 45
59 ----Effect of third-party involvement on employer's responsibility to refrain
from discrimination [SUPPLEMENT]
Case authorities:
Unincorporated associations may be held liable under theories of membership ratification
or authorization, in absence of membership ratification; thus, National Football League
(NFL) could not be held responsible for acts of its member teams where Title VII
plaintiff did not allege or provide any evidence that any acts of owners or officers of any
NFL team in connection with complained of incident were either authorized or ratified by
other member teams of NFL. Jackson v National Football League (1994, SD NY) 65
BNA FEP Cas 358.
In appropriate circumstances, such as interference theory of liability, absence of direct
employment relationship does not bar Title VII claim; in order to hold third party liable
under Title VII, third party must have exercised direct and significant degree of control
over complaining party's direct employer or complaining party's work environment.
People by Abrams v Holiday Inns, Inc. (1993, WD NY) 62 BNA FEP Cas 826.
Footnotes
Footnote 43. Arizona Governing Committee for Tax Deferred Annuity & Deferred
Compensation Plans v Norris (1983) 463 US 1073, 77 L Ed 2d 1236, 103 S Ct 3492, 4
EBC 1633, 32 BNA FEP Cas 233, 32 CCH EPD 33696, 52 AFTR 2d 83-5292.
Footnote 44. EEOC v South Dakota Wheat Growers Asso. (1988, DC SD) 683 F Supp
Footnote 45. Morgan v Safeway Stores, Inc. (1989, CA9) 884 F2d 1211, 50 BNA FEP
Cas 1339, 51 CCH EPD 39314.
60 Joint employer liability

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An entity may be responsible for discriminatory conduct if it is related to an employer
that has an employment relationship with the aggrieved person, under the joint employer
theory of liability. The interrelationship between the entities and their joint connection to
the discriminatory practice are the crucial inquiries in such determinations. For example,
a union employee could not claim discrimination was committed jointly by the
international union and the local organization that lacked the requisite employees for
Title VII coverage, because the local exercised independence with respect to its
personnel decisions. 46 Conversely, when an international union exercised a high
degree of control over a local union's employment affairs, it was jointly responsible for
any discriminatory decisionmaking. 47 Joint employers need not constitute a single
integrated enterprise in order to share liability for a discriminatory practice, but they must
share or codetermine decisions regarding the essential terms and conditions of
employment. 48
In applying the above requirements, joint liability was established for:

a franchisor that controlled a franchisee's hours of work, work assignments, and
products used, and was among the named insureds in policies covering the franchisee's
property, even though the franchisee was an independent contractor; 49
a realty management firm that supervised an office building in which an employee
worked as a lobby hostess, gave instructions that she be hired and later discharged, and
controlled her uniforms and work assignments, and a cleaning contractor that provided
personnel for the building and paid the employee's wages, when the discrimination
consisted of discharging the employee for refusing to wear a prescribed uniform. 50
However, no joint employer liability was established for:
an employees' relief association that was a separate legal entity, had no employees of its
own, and had no control over labor relations, even though it was financed 50% by the
employer; 51
a federal credit union that denied pregnancy-related disability benefits, since, although
all the credit union's directors worked for the employer, the sponsoring employer had no
control over their selection, and there were no overlapping directors or common
ownership or financial control; 52
an insurance company whose agent was the sole proprietor of his own business and
totally responsible for all employment-related decisions regarding his employees; 53
a franchisor who had no control over the franchisee other than the power to terminate
the franchise; 54
a national organization that provided a local chapter with guidelines but not regimented
rules, when the local chapter acted autonomously with respect to personnel policies, had
its own bylaws, controlled its financial affairs, had separate boards and officers, and
acted independently in labor-related matters; 55
a carpet retailer that was only an exclusive sales representative for the manufacturer
charged with discrimination. 56
60 ----Joint employer liability [SUPPLEMENT]
Case authorities:
Courts predominantly apply standards promulgated by National Labor Relations Board
when deciding whether two entities should be treated as joint employer; actual control is
factor to be considered when deciding joint employer issue, but authority or power to
control is also highly relevant. Virgo v Riviera Beach Assocs. (1994, CA11 Fla) 30 F3d
1350, 65 BNA FEP Cas 1317, 8 FLW C 621.
Footnotes
Footnote 46. Childs v Local 18, International Brotherhood of Electrical Workers (1983,
CA9) 719 F2d 1379, 32 BNA FEP Cas 275, 113 BNA LRRM 3313, 32 CCH EPD
33784, 33 CCH EPD 33979, 98 CCH LC 10297, 99 CCH LC 10552.
Footnote 47. Kaplan v International Alliance of Theatrical & Stage Employees & Motion
Picture Machine Operators (1975, CA9) 525 F2d 1354, 11 BNA FEP Cas 872, 10 CCH
EPD 10504.
Footnote 48. Thomas v Chester County Council on Addictive Diseases (1988, ED Pa)
1988 US Dist LEXIS 7288, affd without op (CA3) 908 F2d 964.
Footnote 49. EEOC Decision No. 71-708 (1970) 3 BNA FEP Cas 141, CCH EEOC Dec
6178; EEOC Decision No. 75- 148(1975) CCH EEOC Dec 6541.
Footnote 50. EEOC Decision No. 77-36 (1978).
Footnote 51. EEOC v Wooster Brush Co. Employees Relief Asso. (1984, CA6) 727 F2d
Footnote 52. Morgan v Safeway Stores, Inc. (1989, CA9) 884 F2d 1211, 50 BNA FEP
Cas 1339, 51 CCH EPD 39314.
Footnote 53. Konieczny v Derickson (1987, SD Ill) 43 BNA FEP Cas 251, 44 CCH EPD
37443.
Footnote 54. Evans v McDonald's Corp. (1991, CA10) 56 BNA FEP Cas 123.
Footnote 55. Webb v American Red Cross (1986, DC Neb) 652 F Supp 917, 42 BNA
FEP Cas 924.
Footnote 56. Kelly v Sharon Sales, Inc. (1987, ND Ill) 1987 US Dist LEXIS 4273.
61 Liability of parent corporation for discrimination by a subsidiary

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Joint employer liability principles are most often applied in evaluating the liability of a
parent corporation for the discriminatory actions of its subsidiary under both Title VII 57
and the ADEA. 58 A wholly owned subsidiary corporation and its parent corporation
will be jointly liable employers where the parent's control of the subsidiary exceeds that
normally exercised by a separate parent corporation. 59 Thus, even a wholly owned
corporate subsidiary relationship will not automatically make a parent corporation liable
for the discriminatory practices of its subsidiary. 60
To determine whether a parent company can be held responsible for the actions of its
subsidiaries, the most important issues are whether there is centralized control of labor
relations, and which entity made the final decision regarding employment matters related
to the person claiming discrimination. 61 The plaintiff must establish the parent
corporation's liability by showing that the two entities are so functionally intertwined that
they are, in effect, one employer. 62
Centralization of labor relations sufficient to subject a parent company to discrimination
liability for a subsidiary's conduct was demonstrated by the facts that:
several of the most important controlling persons of one corporation were also
controlling persons of the other corporation, and the employment practices of both
corporations were managed by a single personnel department; 63
a parent corporation official's signature was on a settlement agreement resolving a
discrimination dispute involving the subsidiary's employee; 64
the subsidiary's sexual harassment policy was distributed under the parent's letterhead,
and the parent's management actively participated in determining how to handle a sexual
harassment complaint by an employee of the subsidiary. 65
However, a parent corporation was not liable for its subsidiary's alleged discrimination
where:
the parent did not excessively interfere with the business operations of its subsidiaries
and had only a normal parent-subsidiary relationship with them; 66
the affairs of each were handled separately, and the subsidiary corporation was not a
sham; 67
the parent corporation had not been in existence at the time of the discriminatory act,
and since its formation, had not been involved in the subsidiary's business or personnel
policies, or in the plaintiff's employment. 68
61 ----Liability of parent corporation for discrimination by a subsidiary
[SUPPLEMENT]
Case authorities:
Parent corporation that interferes with its subsidiary's employment policies may be
deemed employer within meaning of Title VII. Alie v NYNEX Corp. (1994, ED NY) 158
FRD 239, 66 BNA FEP Cas 812.
Title VII plaintiff failed to invoke single employer doctrine, where her complaint
contained nothing more than conclusory and unsupported allegations of control by parent
company over subsidiary company. Coraggio v Time Magazine Co. (1995, SD NY) 67
BNA FEP Cas 1880, 66 CCH EPD 43578 (criticized in Austin v Cornell Univ. (1995,
ND NY) 1995 US Dist LEXIS 10474).
Parent and subsidiary corporations cannot be found to represent single, integrated
enterprise in absence of evidence of interrelation of operations, centralized control of
labor relations, common management, and common ownership or financial control.
Garcia v Elf Atochem N. Am. (1994, CA5 Tex) 28 F3d 446.

United States subsidiary of Japanese parent corporation can assert parent corporation's
rights under Friendship, Commerce and Navigation Treaty (April 2, 1953, 4 U.S.T. 2063)
between United States and Japan; thus, U.S. subsidiary can favor citizens of Japan in
matters relating to employment. Papaila v Uniden Am. Corp. (1994, ND Tex) 840 F Supp
440, 63 BNA FEP Cas 986.
Parent corporation can be liable under Title VII for its subsidiary's employees if court
finds that two are integrated enterprise; in order to determine whether parent corporation
and its wholly owned subsidiary are integrated enterprises, court must find that there is
joint employment relationship. Cusio v Aon Corp. (1994, ND Ill) 66 BNA FEP Cas 1683.
Footnotes
Footnote 57. Baker v Stuart Broadcasting Co. (1977, CA8) 560 F2d 389, 15 BNA FEP
Cas 394, 14 CCH EPD 7775.
Footnote 58. Bruce v S & H Riggers & Erectors, Inc. (1990, ND Ga) 732 F Supp 1172,
CCH EPD 33702.
Footnote 60. Sobelman v Commerce Bancshares, Inc. (1977, ED Mo) 444 F Supp 84, 16
BNA FEP Cas 975.
Footnote 61. Chaiffetz v Robertson Research Holding, Ltd (1986, CA5) 798 F2d 731, 41
Footnote 62. Wood v Southern Bell Tel. & Tel. Co. (1989, ND Ga) 725 F Supp 1244, 51
BNA FEP Cas 1043.
Footnote 63. Ratcliffe v Insurance Co. of North America (1980, ED Pa) 482 F Supp 759,
22 BNA FEP Cas 1120, 22 CCH EPD 30643, 88 CCH LC 33884.
Footnote 64. Sargent v McGrath (1988, ED Wis) 685 F Supp 1087, 47 BNA FEP Cas
171.
Footnote 65. Brooms v Regal Tube Co. (1989, CA7) 881 F2d 412, 50 BNA FEP Cas
1499, 54 CCH EPD 40245.
Footnote 66. Johnson v Flowers Industries, Inc. (1987, CA4) 814 F2d 978, 43 CCH EPD
37034.
Footnote 67. Mas Marques v Digital Equipment Corp. (1980, DC Mass) 490 F Supp 56,
22 BNA FEP Cas 87, affd (CA1) 637 F2d 24, 24 BNA FEP Cas 1286, 24 CCH EPD
31415.
Footnote 68. Anderson v Bell Alantic Telephone Co. (ED Pa) No. 85-1057, 1/27/86.
62 Successor employer liability

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The question of whether a successor employer is liable for the discrimination committed
by a predecessor employer has often arisen under Title VII. Four circuit courts have
specifically adopted a nine-point analysis to determine whether Title VII liability extends
to a successor employer. The questions that comprise this analysis are:
did the successor have notice of the discrimination charge;
did the predecessor have the ability to provide relief;
has there been a substantial continuity of business operations;
did the new employer use the same plant;
is substantially the same work force being used;
is substantially the same supervisory personnel being used;
do the same jobs exist under substantially the same working conditions;
are the same machinery, equipment, and methods of production being used;
is the same product being produced. 69
The requirement that the successor be aware of outstanding charges of discrimination
may be satisfied by either the successor's actual knowledge of the charge, or by virtue of
complaints being on file against the predecessor with the EEOC. 70
Likewise, a
successor was responsible for compliance with a prior judgment against a predecessor
with which it merged, because the successor's prior knowledge of the judgment was
demonstrated by its filing of an amicus brief in support of the predecessor in the earlier
case. 71
The basic issue in every successorship liability claim is how to strike a proper balance
between preventing wrongdoers from escaping liability, and facilitating the transfer of
corporate assets to their most valuable uses. Therefore, there is a presumption in favor of
successor liability when, before the change in ownership, the successor knows of the
predecessor s liability and its ability to pay, since the successor can demand
compensation for that assumed liability through a negotiation for a lower price in the
purchase of the assets. 72 However, where a successor had no notice of any pending
discrimination charges in a bankruptcy purchase, so that it could not adjust the price paid
to reflect future liabilities arising from the purchase, it could not be held liable to
employees terminated before its purchase of the predecessor's assets in bankruptcy. 73
The successor also cannot be held liable when the predecessor is able to provide full
relief, and the successor has not caused the plaintiff's damages. 74
Continuity of operations must be evaluated in determining the possible liability of a
successor corporation for its predecessor's violation of discrimination laws. A successor
corporation was held to have assumed the contingent liabilities of a predecessor
proprietorship under Title VII where the business remained much the same as it had been
when it was a proprietorship, with the same personnel and at the same location. 75
However, where a bankruptcy court directed a trustee to transfer assets of a bankrupt firm
to a purchasing firm "free and clear of liens, including tax liens, if any, claims,
encumbrances, demands and rights of creditors, or any person," a Title VII claim by a
former employee of the bankrupt firm against the purchaser was dismissed because the
purchaser was not a "successor." The Second Circuit found no substantial continuity of
identity in the business' ownership and work force before and after the change. 76
The test for successorship obligations under Title VII also is not met when some, but not
all, assets have been transferred, and the predecessor corporation remains in operation as
a competitor of the alleged successor. 77 The successor also has no obligation to
remedy the predecessor's past discriminatory policies when there is any question about
the predecessor's ability to provide adequate relief directly, unless the successor has
actively continued those discriminatory policies. 78
62 ----Successor employer liability [SUPPLEMENT]
Case authorities:
Liability of successor employer under Title VII is not automatic, but must be determined
on case by case basis; factors to be considered include whether successor had notice of
charge, ability of predecessor to provide relief, whether there has been substantial
continuity of operations, whether new employer uses same facilities, whether new
employer uses same or substantially same work force, whether new employer uses same
or substantially same supervisory personnel, whether same jobs exist under substantially
same working conditions, and whether new employer uses same machinery and
equipment. United States v Sheriff of Assumption Parish (1995, ED La) 69 BNA FEP
Cas 129.
Footnotes
Footnote 69. Sixth CircuitEEOC v MacMillan Bloedel Containers, Inc. (1974, CA6)
Seventh CircuitEEOC v Vucitech (1988, CA7) 842 F2d 936, 9 EBC 1787, 46 BNA
Ninth CircuitSlack v Havens (1975, CA9) 522 F2d 1091, 11 BNA FEP Cas 27, 10
CCH EPD 10343.
Tenth CircuitTrujillo v Longhorn Mfg. Co. (1982 CA10) 694 F2d 221, 30 BNA FEP
Cas 737, 30 CCH EPD 33170.
Footnote 70. Rabidue v Osceola Refining Co., Div. of Texas-American Petrochemicals,

Inc. (1986, CA6) 805 F2d 611 42 BNA FEP Cas 631, 27 BNA WH Cas 1513, 41 CCH
EPD 36643, 105 CCH LC 34875, cert den 481 US 1041, 95 L Ed 2d 823, 107 S Ct
Footnote 71. Criswell v Delta Air Lines, Inc. (1988, CA9) 860 F2d 1088, 49 BNA FEP
Cas 192.
Footnote 72. EEOC v Vucitech (1988, CA7) 842 F2d 936, 9 EBC 1787, 46 BNA FEP
Cas 550, 46 CCH EPD 37932.
Footnote 73. Klegerman v F.G. Apparel Inc. (ND Illinois) No 85 C 7887, 2/10/86.
Footnote 74. Weaver v Casa Gallardo, Inc. (1991, CA11) 922 F2d 1515, 55 BNA FEP
Cas 27, 55 CCH EPD 40540.
Footnote 75. Milner v National School of Health Technology (1977, ED Pa) 73 FRD 628,
14 BNA FEP Cas 835.
Footnote 76. Forde v Kee-Lox Mfg. Co. (1977, WD NY) 437 F Supp 631, 16 BNA FEP
Cas 262, affd (CA2) 584 F2d 4, 17 BNA FEP Cas 1603, 17 CCH EPD 8611.
Footnote 77. EEOC v Anchor Sign Corp. (1988, ED Va) 47 BNA FEP Cas 940.
Footnote 78. Sandoval v Saticoy Lemon Assn. (1990, CD Cal) 747 F Supp 1373, 56
63 Liability of agents as private employers

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An employer's agent is expressly made independently liable as an "employer" for its
discriminatory actions under Title VII 79 and the ADEA 80 if the agent is operating on
behalf of a private employer that is also covered by Title VII or the ADEA. 81 A person
is an employer's agent if he participates in the decisionmaking process that forms the
basis of the alleged discrimination, although only injunctive relief may be available
against a supervisory agent, while the employer's liability may extend to an award of
backpay. 82 An employer's agent is also independently liable as an "employer" for its
discriminatory actions under the ADA. 83
Agents who have been found potentially liable for discrimination they participated in as
private "employers" under Title VII and the ADEA included:
officers, directors, supervisors, 84 or other persons involved in managerial decisions;
85
all members of an applicant-screening committee, since they knowingly tolerated one

member's discriminatory questions of a female applicant by one member; 86
the publisher and editor-in-chief of a magazine; 87
general partners in a law partnership. 88
The requisite "participation" in the discriminatory conduct at issue needed to hold an
agent liable as an "employer" does not require a formal designation of authority.
However, it does require that the agent have authority to affect an employee's terms and
conditions of employment. This must entail more than the exercise of some supervisory
responsibility over the employee's work. 89 A supervisor who lacks direct power to hire
and fire employees can, nevertheless, be considered an "employer" if he participates in
managerial decisions, is directly responsible for establishing a subordinate's job duties,
and influences the subordinate's working conditions. 90
63 ----Liability of agents as private employers [SUPPLEMENT]
Case authorities:
There is no reason to import into employment discrimination cases official capacity
concept; thus, individual who is responsible decisionmaker may be held personally liable
in Title VII action for discriminatory decision made on behalf of employer corporation.
Cassano v DeSoto, Inc. (1994, ND Ill) 65 BNA FEP Cas 1044.
Supervisor who was agent of employer could be sued in his official capacity, but not in
his individual capacity. Candelaria v Board of Regents of the Univ. of N.M. (1994, DC
NM) 66 BNA FEP Cas 765.
Agency principles are applicable to situations where courts must determine extent of
corporation's Title VII liability. Virgo v Riviera Beach Assocs. (1994, CA11 Fla) 30 F3d
1350, 65 BNA FEP Cas 1317, 8 FLW C 621.
Footnotes
Footnote 81. Connelly v Park-Ohio Industries, Inc. (1988, ND Ohio) 1988 US Dist
LEXIS 3901.
Footnote 82. Pree v Stone & Webster Engineering Corp. (1985, DC Nev) 607 F Supp
Footnote 83. 42 USCS 12111(5)(A).
Footnote 84. 56.
Footnote 85. Connelly v Park-Ohio Industries, Inc. (1988, ND Ohio) 1988 US Dist
LEXIS 3901.
Footnote 86. Barbano v Madison County (1990, CA2) 922 F2d 139, 54 BNA FEP Cas
1287, 55 CCH EPD 40461.
Footnote 87. Lehtinen v Bill Communications, Inc. (1989, SD NY) 49 CCH EPD
38920.
Footnote 88. Lettich v Kenway (1984, DC Mass) 590 F Supp 1225, 35 BNA FEP Cas
1289, 36 CCH EPD 34993.
Footnote 89. Hinton v The Methodist Hospitals, Inc. (1991, ND Ind) 779 F Supp 956, 57
Footnote 90. Howard v Temple Urgent Care Center, P.C. (1990, DC Conn) 53 BNA FEP
Cas 1416.
3. Coverage of Public Employers Under Federal Job Discrimination Law [64-73]
64 Public employers regulated by federal job discrimination laws

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The following discussion concerns public employers subject to federal job discrimination
laws, including the federal government as well as state and local governments.
Discussions of the coverage of state and local government employers under job
discrimination laws when they are operating as government contractors 91 or recipients
of government funds 92 are located elsewhere.
State aspects: The FEP laws, equal pay laws, age discrimination statutes, and
handicap laws of the fifty states, the District of Columbia, Puerto Rico, and the Virgin
Islands identify public employers to which discrimination prohibitions apply. 93
64 ----Public employers regulated by federal job discrimination laws
[SUPPLEMENT]
Practice Aids: Post-Croson minority business utilization programs of state and local
governments, 44 Lab LJ 422 (1993).
Footnotes
seq.
65 Federal employers covered by Title VII

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Although Title VII's definition of "employer" excludes the United States and its wholly
owned corporations, 94 federal employers are covered by special provisions of the
statute that address particular federal employees. The act covers all federal employees or
job applicants (with the exception of aliens employed outside the United States) in:
military departments;
executive agencies (with the exception of the General Accounting Office), including
those paid with nonappropriated funds;
the Postal Service;
the Postal Rate Commission;
units of the judicial branch that have positions in the competitive service;
units of the legislative branch, including the Library of Congress, that have positions in
the competitive service. 95
Covered "military departments" are prohibited from discriminating against civilian
employees only, not enlisted uniformed military personnel. Thus, Title VII does not
apply to a major in the U.S. Army, 96 or a uniformed member of the U.S. Army Reserve.
97
However, a female civilian employee in the U.S. Navy was in a covered position,
because she was not a member of the military services and the acts in issue did not
implicate a policy or function of an unmistakable military nature. 98
There is disagreement as to whether commissioned officers in the U.S. Public Health
Services (PHS) Commissioner Corps are covered under Title VII. The Tenth Circuit has
held that they are not covered, 99 while the D.C. Circuit has held that the differences
between commissioned officers of the PHS and members of the armed forces were
significant enough to warrant the conclusion that they were not uniformed military
personnel outside of the statute's coverage. 1

Government-controlled corporations are covered under Title VII if they are federal
executive agencies. However, a private entity does not become a government-controlled
corporation merely by receiving federal funding. The key inquiries involve the intent of
Congress and the day-to-day control of operations. Thus, when Congress intended a
radio station to enjoy independence in programming and broadcasting decisions, subject
to the limitation that they be consistent with United States foreign policy, the station was
not a government-controlled corporation. 2 Federal Land Bank Associations and
Production Credit Associations are not federal agencies or federal instrumentalities.
Although heavily regulated, they are, as Congress intended, owned and operated by
farmers. 3
Observation: The Civil Rights Act of 1866 4 cannot be used by federal employees
to assert discrimination claims that are cognizable under Title VII. 5
65 ----Federal employers covered by Title VII [SUPPLEMENT]
Practice Aids: Arresting "Tailhook": The prosecution of sexual harassment in the
military, 140 Military LR 1 (1993).
Statutes:
42 USCS 2000e-16(a), amended in 1995, now also applies to those with positions in
the Government Printing Office and the General Accounting Office.
Case authorities:
"Retired" police sergeant is entitled to summary judgment on 1983 claim against city,
where sergeant was passed over for promotion to lieutenant and given involuntary
psychiatric retirement apparently based largely on his complicated personal life, because
sergeant has been deprived of significant property and liberty interests without
adversarial hearing. Coffran v Board of Trustees (1994, SD NY) 842 F Supp 723, 17
EBC 2816.
White House (or Executive Residence) is not executive agency within meaning of 42
USCS 2000e-16(a). Haddon v Walters (1995, App DC) 43 F3d 1488.
Footnotes
Annotation: Immunity of public officials from personal liability in civil rights actions
brought by public employees under 42 USCS 1983, 63 ALR Fed 744.
Footnote 96. Gonzalez v Department of Army (1983, CA9) 718 F2d 926, 34 BNA FEP
Cas 1850, 32 CCH EPD 33893.
Footnote 97. Roper v Department of Army (1987, CA2) 832 F2d 247, 44 CCH EPD
37537.
Footnote 98. Bledsoe v Webb (1988, CA9) 839 F2d 1357, 46 BNA FEP Cas 136, 45
CCH EPD 37810.
Footnote 99. Salazar v Heckler (1986, CA10) 787 F2d 527, 40 BNA FEP Cas 721, 39
CCH EPD 36040.
Footnote 1. Milbert v Koop (1987) 265 App DC 206, 830 F2d 354, 44 BNA FEP Cas
1694, 44 CCH EPD 37530.
Footnote 2. Ralis v RFE/RL, Inc. (1985) 248 App DC 208, 770 F2d 1121, 38 BNA FEP
Cas 1073, 37 CCH EPD 35490.
Footnote 3. Hanna v Federal Land Bank Assn. (1990, CA7) 903 F2d 1159, 53 BNA FEP
Cas 123, 53 CCH EPD 40012.
66 Federal employers covered by the ADEA

View Entire Section
The ADEA prohibits age discrimination by federal employers with respect to all
personnel actions affecting federal employees or applicants who are at least 40 years of
age (with the exception of aliens employed outside of the United States) in civil
capacities in the military, in the executive branch, the U.S. Postal Service and the Postal
Rate Commission, and in those units of the judicial and legislative branches, including
the Library of Congress, that have competitive service positions. 6 However, the
ADEA authorizes the Office of Personnel Management (OPM) and the Librarian of
Congress to establish maximum age requirements if they determine that age is a bona
fide occupational qualification necessary to the performance of a federal position. 7
The ADEA, like Title VII, 8 does not apply to the military's employment of uniformed
military personnel. Consequently, an age 42 cut-off for enlistment in the Naval Reserve
did not violate the Act. 9 In determining whether an internal military decision, such as a
decision to mandatorily retire an employee, is subject to scrutiny under the ADEA, a
court looks at four factors: (1) the nature and strength of the plaintiff's claim; (2) the
potential injury to the plaintiff if review is denied; (3) the type and degree of interference
with military functions; and (4) the extent to which military expertise or discretion is
involved. The last two factors are weighted most heavily. 10
The ADEA's coverage of federal executive agencies includes coverage of
government-controlled corporations in exactly the same manner as applicable under Title
VII. 11
Footnotes
Footnote 7. 29 USCS 633a(b)(3).
Footnote 8. 65.
Footnote 9. Kawitt v U.S. (1988, CA7) 842 F2d 951, 50 BNA FEP Cas 3, 46 CCH EPD
37920.
Footnote 10. Ridgway v Aldrige (1989, DC Mass) 709 F Supp 265, 49 BNA FEP Cas
1697.
Footnote 11. Ralis v RFE/RL, Inc. (1985, App DC) 770 F2d 1121, 38 BNA FEP Cas
1073, 37 CCH EPD 35490.
For a discussion of federal employers covered by Title VII, generally, see 65.
67 Federal employers covered by the ADA

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Under the Americans with Disabilities Act (ADA), an "employer" does not include the
United States or any corporation owned by the federal government. 12 However,
separate provisions commit both houses of Congress to conform to the nondiscriminatory
conduct required by the ADA. Specifically, the ADA reaffirms the Senate's commitment
to Rule XLII of the Standing Rules of the Senate, that prohibits members, officers, and
employees of the Senate to fail to hire, discharge, or otherwise discriminate against an
individual on the basis of his physical handicap. 13 The Act also expressly states that it
applies in its entirety to the House of Representatives. 14 Furthermore, the rights and
protections provided under the Act apply with respect to employment by the Senate, 15
the House, any employing authority of the House, 16 and each instrumentality of
Congress. 17 These instrumentalities include the Architect of the Capitol, the
Congressional Budget Office, the General Accounting Office, the Government Printing
Office, the Library of Congress, the Office of Technology Assessment, and the United
States Botanic Garden. 18

67 ----Federal employers covered by the ADA [SUPPLEMENT]
Statutes:
42 USCS 12209, amended in 1995, omitted subsections (a) and (b), deleted the
designation "(c)" and amended that former subsection by striking the Architect of the
Capitol, the Congressional Budget Office, the Office of Technology Assessment, and the
United States Botanic Garden. It added ( 12209(5)) providing that remedies and
procedures set forth in the Civil Rights Act are available to any employee of an
instrumentality of the Congress who alleges a violation of the rights and protection under
this Act that are made applicable by this section, except that the authorities of the Equal
Employment Opportunity Commission will be exercised by the chief official of the
instrumentality of the Congress. ( 12209(6)) provides that the remedies and procedures
set forth in the Civil Rights Act will be available to any qualified person with a disability
who is a visitor, guest, or patron of an instrumentality of Congress, and who alleges a
violation of the rights and protection of the Act as specified.
Footnotes
Footnote 12. 42 USCS 12111(5)(B)(i).
Footnote 13. 42 USCS 12209(a)(1).
Footnote 14. 42 USCS 12209(b)(1).
Footnote 15. 42 USCS 12209(a)(2).
Footnote 16. 42 USCS 12209(b)(2)(A).
Footnote 17. 42 USCS 12209(c)(1).
Footnote 18. 42 USCS 12209(c)(4).
68 Federal employers covered by the Rehabilitation Act

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Federal employers are prohibited from engaging in discrimination based on physical or
mental handicap by 501 and 504 of the Rehabilitation Act of 1973, through the
statute's incorporation of the remedies, procedures, and rights afforded to federal
employees under Title VII. 19
The EEOC takes the position that covered federal employers include executive agencies,
the U.S. Postal Service, the Postal Rate Commission, and employees in competitive
service positions with the legislative and judicial branches of the U.S. and District of
Columbia governments. 20 However, the Court of Appeals for the District of Columbia
Circuit has held that the Rehabilitation Act covers only federal employers of the
executive branch. Thus, employees of the Library of Congress, as part of the legislative
branch, were not covered by the statute. 21
The Rehabilitation Act has also been found to extend to "military departments," in
conformity with the rights and remedies from Title VII 22 incorporated into the
Rehabilitation Act. 23 Likewise, the Rehabilitation Act does not apply to the military's
employment of uniformed military personnel, including the Naval Reserve. 24
Observation: Members of the uniformed services who are not protected under the
Rehabilitation Act are covered by the Government Employee Rights Act of 1991,
which mirrors the Rehabilitation Act's prohibitions against employment discrimination.
25
68 ----Federal employers covered by the Rehabilitation Act [SUPPLEMENT]
Regulations:
29 CFR 1613.1 et seq. (29 CFR Part 1613) were removed in 1995.
Case authorities:
Adult-onset diabetic is entitled to reinstatement to U.S. Merchant Marine Academy and
to compensatory damages under 29 USCS 794, where he applied for appointment,
passed physical, and was honor student for year but was diagnosed with diabetes
mellitus, was deemed disqualified, and separated from Academy midway through
sophomore year with no attempt being made to make reasonable modifications in
program to accommodate his disability, because plain language of 46 USCS Appx
1295b neither requires all cadets to be eligible for reserve service at all times, nor
requires separation from Academy upon finding that student has diabetes. Lane v Pena
(1994, DC Dist Col) 867 F Supp 1050, 7 ADD 1063.
Civil Rights Restoration Act of 1987, which amended 504 of Rehabilitation Act (29
USCS 794) to provide that 504's provisions are not limited to specific program or
activity receiving federal funds, is retroactive and so covers cases pending during its
enactment. Rivera-Flores v Puerto Rico Tel. Co. (1993, DC Puerto Rico) 4 ADD 267, 2
AD Cas 1611.
Railway Labor Act (45 USCS 151 et seq.) does not bar Conrail employee's
discrimination claim under Rehabilitation Act (29 USCS 794). Degutis v Consolidated
Rail Corp. (1994, ND Ill) 6 ADD 1086, 3 AD Cas 1190, 147 BNA LRRM 2470.
Footnotes
Footnote 19. 29 USCS 791, 794, 794a(a)(1).
Footnote 20. 29 CFR 1613.701(b).
Footnote 21. Judd v Billington (1988) 274 App DC 197, 863 F2d 103, 48 BNA FEP Cas
904, 48 CCH EPD 38502.
Footnote 22. 65.
Footnote 23. Milbert v Koop (1987) 265 App DC 206, 830 F2d 354, 44 BNA FEP Cas
1694, 44 CCH EPD 37530.
Footnote 24. Doe v Garrett (1990, CA11) 903 F2d 1455, 53 BNA FEP Cas 335, cert
denied (1991, US) 113 L Ed 2d 213, 111 S Ct 1102, 55 BNA FEP Cas 144, 55 CCH
EPD 40570.
Footnote 25. As to persons protected under federal law, generally, see 110 et seq.
69 Federal employers covered by Government Employee Rights Act

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The Government Employee Rights Act of 1991 covers all units of the executive branch,
including the Executive Office of the President, 26 and forbids discrimination by these
units to the same extent as federal employers are forbidden to discriminate under Title
VII, the ADEA, the ADA, and the Rehabilitation Act. 27
69 ----Federal employers covered by Government Employee Rights Act
[SUPPLEMENT]
Statutes:
2 USCS 1202, amended in 1995, prohibits enumerated discriminatory practices with
regard to all personnel actions affecting Presidential appointees and state employees as
defined, and provides remedies for violations.
Footnotes

For discussion of coverage of public employers under the statutes enumerated above, see
65-68.
70 State and local government employers covered by Title VII and the ADA
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Title VII covers state governments and their political subdivisions and agencies under the
statutory definition of "persons" 28
who can be "employers". 29 It also covers
agents of those entities as "employers." 30 This coverage is a constitutional exercise of
Congressional authority. 31
"State" is defined to include a state of the United States,
the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake
Island, and the Canal Zone. 32 District of Columbia employers that are part of the
federal competitive service are excluded from the statute's definition of "employer," 33
but are treated as federal employers. 34 The doctrine of qualified immunity, which
protects public officials from liability for money damages in their individual capacities
only, is inapplicable to Title VII, since such suits may only be filed against officials in
their official capacities. 35
A state's National Guard is not a covered "employer" under Title VII as to a person on
full-time military duty with it. 36 However, it is considered a covered military
department under Title VII 37 as to its civilian employees. 38
On its effective date, 39 the Americans with Disabilities Act (ADA) adopts the same
definition of "persons" who can be "employers" as does Title VII. 40 The Act also
expressly defines a "state" to include the several states, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Trust
Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.
41 Moreover, it expressly waives Eleventh Amendment immunity for any state that
violates the statute. 42
70 ----State and local government employers covered by Title VII and the ADA
[SUPPLEMENT]
Statutes:
Case authorities:
Because defendant city official's liability under Title VII is premised upon his role as
agent of city, any recovery to be had must be against him in his official, not his
individual, capacity. Jenkins v Grenada (1993, ND Miss) 813 F Supp 443, 61 BNA FEP
Cas 258.
Court cannot conclude that Congress, in enacting 8 USCS 1324b, which forbids
discrimination in employment against U.S. citizens or nationals, intended to abrogate
Eleventh Amendment, under which State may not be sued by individual without its
consent, since Congress did not specifically address this issue and Court may not infer
that Congress intended Eleventh Amendment to be inapplicable. Hensel v Office of Chief
Admin. Hearing Officer (1994, CA10) 38 F3d 505, 66 BNA FEP Cas 58.
Footnotes
Footnote 28. 42 USCS 2000e(a).
seq.) as precluding action under 42 uscs 1983 for employment discrimination by
Footnote 29. 40.
Footnote 31. Fitzpatrick v Bitzer (1976) 427 US 445, 49 L Ed 2d 614, 96 S Ct 2666, 1
Footnote 32. 42 USCS 2000e(i).
Footnote 34. 42 USCS 2000e- 16(a).
For a general discussion of federal employers covered by Title VII, see 65.
Footnote 35. Harvey v Blake (1990, CA5) 913 F2d 226, 53 BNA FEP Cas 1625, 54 CCH
EPD 40289.
Footnote 36. Taylor v Jones (1981, CA8) 653 F2d 1193, 28 BNA FEP Cas 1024, 26 CCH
EPD 31923; Stinson v Hornsby (1987, CA11) 821 F2d 1537, 44 BNA FEP Cas 594, 43
CCH EPD 37256.
Annotation: Sex discrimination in law enforcement and corrections employment, 53
ALR Fed 31.
Footnote 37. 65.

Footnote 38. Lopez v Louisiana Nat. Guard (1990, ED La) 733 F Supp 1059, 55 CCH
EPD 40475, affd without op (CA5) 917 F2d 561.
Footnote 39. 44.
71 State and local elected officials covered by Government Employee Rights Act
View Entire Section
The Government Employee Rights Act of 1991 covers the employment practices of
persons elected to public office in any state or political subdivision of any state, by
forbidding them from discriminating against their appointees to the same extent they
would be forbidden to do so under Title VII. 43
Footnotes
Annotation: Immunity of public officials from personal liability in civil rights actions
brought by public employees under 42 USCS 1983, 63 ALR Fed 744.
72 State and local government employers covered by the ADEA

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Under the definition of "employer," the ADEA covers states and their political
subdivisions, agencies, and instrumentalities, as well as any interstate agencies. 44 This
coverage is a constitutional exercise of Congressional authority. 45
A "state" is
defined to include a state of Samoa, Guam, Wake Island, the Canal Zone, and the Outer
Continental Shelf Lands as defined in the Outer Continental Shelf Lands Act. 46
There is a conflict regarding whether the 20-employee minimum imposed under the
ADEA on private employees 47 is also applicable to public employers. One view is that
the statutory definition of "employer" at 29 USCS 630(b) must be read disjunctively.
Under this interpretation, the statute defines an employer as a person with 20 or more
employees under certain time frames, or state and local governments, regardless of the
number of employees. 48 However, another court has held that the definition of
"employer" must be read conjunctively, and that the 20-employee minimum under certain
time frames is applicable to both public and private employers. 49
In a jurisdiction where the 20-employee minimum has been applied to all state and local
government employers, an agency with fewer than 20 employees may still be covered if
the larger governmental unit of which it is a part does meet that minimum. Thus, an
agency or instrumentality of a political subdivision does not have to meet the
20-employee requirement independently if the political subdivision itself meets the
requirement, and the agency is subject to some supervisory control by the political
subdivision. This control can be demonstrated by evidence that terms of employment are
fixed by the political subdivision, or that the subdivision and agency share common
funding sources Samoa, Guam, Wake Island, the Canal Zone, and the Outer Continental
Shelf Lands as defined in the Outer Continental Shelf Lands Act. 50
There is a conflict regarding whether the 20-employee minimum imposed under the
ADEA on private employees 51 is also applicable to public employers. One view is that
the statutory definition of "employer" at 29 USCS 630(b) must be read disjunctively.
Under this interpretation, the statute defines an employer as a person with 20 or more
employees under certain time frames, or state and local governments, regardless of the
number of employees. 52 However, another court has held that the definition of
"employer" must be read conjunctively, and that the 20-employee minimum under certain
time frames is applicable to both public and private employers. 53
In a jurisdiction where the 20-employee minimum has been applied to all state and local
government employers, an agency with fewer than 20 employees may still be covered if
the larger governmental unit of which it is a part does meet that minimum. Thus, an
agency or instrumentality of a political subdivision does not have to meet the
20-employee requirement independently if the political subdivision itself meets the
requirement, and the agency is subject to some supervisory control by the political
subdivision. This control can be demonstrated by evidence that terms of employment are
fixed by the political subdivision, or that the subdivision and agency share common
funding sources for salaries, common pension funds, or common civil service
employment and grievance policies. For example, an advertising agency that shared with
a city the revenues derived from advertisements displayed in an airport was not an
agency or instrumentality of the city, because it had none of the public agency
characteristics. 54
72 ----State and local government employers covered by the ADEA
[SUPPLEMENT]
Case authorities:
Massachusetts law, which prevents state and local employees hired after age 65 from
participating in any public employee retirement system in state, violates, and is
preempted by, ADEA. EEOC v Massachusetts (1996, CA1 Mass) 77 F3d 572, 19 EBC
2821, 70 BNA FEP Cas 289.

Eleventh Amendment bars federal court from considering age discrimination claim
against state that was acting in its capacity as employment agency under ADEA when
alleged discrimination occurred, because Congress did not, in 29 USCS 630(c),
abrogate Eleventh Amendment's grant of constitutional immunity to states while acting
as employment agencies under ADEA. Blanciak v Allegheny Ludlum Corp. (1996, CA3
Pa) 77 F3d 690, 70 BNA FEP Cas 27.
Congress did not abrogate states' immunity from suit in federal court in ADEA cases
involving state acting in its capacity as employment agency; thus, Eleventh Amendment
bars ADEA action brought against state-run employment agencies. Radeschi v
Pennsylvania (1993, WD Pa) 846 F Supp 416, 64 BNA FEP Cas 553.
Lawsuits under ADEA brought by private litigants against state in federal court are not
barred by Eleventh Amendment immunity. Hurd v Pittsburg State Univ. (1994, CA10
Kan) 29 F3d 564, 65 BNA FEP Cas 322, petition for certiorari filed (Aug 16, 1994).
ADEA was enacted pursuant to section five of Fourteenth Amendment and Congress
intended that ADEA abrogate Eleventh Amendment sovereign immunity; thus, ADEA
suit may be brought against states and state agencies. Hurd v Pittsburg State Univ. (1993,
DC Kan) 821 F Supp 1410, 61 BNA FEP Cas 936.
Footnotes
Footnote 45. EEOC v Wyoming (1983) 460 US 226, 75 L Ed 2d 18, 103 S Ct 1054, 4
Footnote 46. 29 USCS 630(i).
Footnote 47. 283.
Footnote 48. Price v Board of County Commissioners of Jefferson County (DC Kan) No.
84-2384-S, 3/10/86.
Footnote 49. EEOC v Monclova Township (1990, CA6) 920 F2d 360, 54 BNA FEP Cas
865, 55 CCH EPD 40404; Kelly v Wauconda Park Dist. (1986, CA7) 801 F2d 269, 41
BNA FEP Cas 1376, 41 CCH EPD 36694, cert den 480 US 940, 94 L Ed 2d 781, 107
S Ct 1592, 43 BNA FEP Cas 560, 42 CCH EPD 36847.
Footnote 51. 283.
Footnote 52. Price v Board of County Commissioners of Jefferson County (DC Kan) No.
84-2384-S, 3/10/86.
Footnote 53. EEOC v Monclova Township (1990, CA6) 920 F2d 360, 54 BNA FEP Cas
865, 55 CCH EPD 40404; Kelly v Wauconda Park Dist. (1986, CA7) 801 F2d 269, 41
Footnote 54. Schaefer v Transportation Media, Inc. (1988, CA7) 859 F2d 1251, 47 BNA
73 Congressional employers and instrumentalities covered by GERA and the

Civil Rights Act of 1991
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The Government Employee Rights Act of 1991 (GERA) applies to all personnel actions
affecting employees of the Senate. 55
Under the Civil Rights Act of 1991, the purposes of Title VII apply to the House of
Representatives. 56 Thus, the rights and protections provided under Title VII apply to
employment by the House or any employing authority of the House. 57
Under the Civil Rights Act of 1991, the rights and protections provided under Title VII as
amended by the Civil Rights Act of 1991 also apply to employment by each
instrumentality of Congress. 58
The instrumentalities of Congress include:
the Architect of the Capitol;
the Congressional Budget Office;
the General Accounting Office;
the Government Printing Office;
the Office of Technology Assessment; and
the United States Botanic Garden. 59
73 ----Congressional employers and instrumentalities covered by GERA and the
Civil Rights Act of 1991 [SUPPLEMENT]
Statutes:

Case authorities:
Section 101 of the Civil Rights Act of 1991which amends 42 USCS 1981 so as to
provide that 1981's prohibition against racial discrimination in the making and
enforcement of contracts applies to all phases and incidents of the contractual
relationship, including discriminatory contract terminationsdoes not apply to a case that
arose before 101 was enacted, such as a case involving discharged workers' racial
discrimination claims under 1981 that was filed in 1986 and was pending on appeal
when 101 was enacted, because (1) a negative implication argument based on
402(a), 109(c), and 402(b) of the 1991 Act is not persuasive, where (a) 402(a) (note
following 1981) states that except as otherwise specifically provided, the 1991 Act
shall take effect upon enactment, (b) 109(c) (note following 42 USCS 2000e), part of
a section extending Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.)
to overseas employers, states that the amendments made by that section shall not apply to
conduct occurring before the date of the 1991 Act's enactment, and (c) 402(b) (note
following 1981) is apparently intended to exempt from the 1991 Act's applicability a
single disparate impact lawsuit against a particular company; (2) the important new legal
obligations which 101 imposes bring 101 within the class of laws that are
presumptively prospective; and (3) even assuming that Congress had the power to make
101 retroactive, that 101 reflects congressional disapproval of the interpretation of
1981 in Patterson v McLean Credit Union (1989) 491 US 164, 105 L Ed 2d 132, 109 S
Ct 2363to the effect that 1981 did not apply to conduct which occurred after the
formation of a contract and which did not interfere with the right to enforce established
contract obligationsand that many or even most legislators believed that the Patterson
decision represented a departure from the previously prevailing understanding of the
reach of 1981, there is no clear expression of congressional intent in the 1991 Act to
reach cases arising before 101's enactment, where (a) the 1991 Act's text does not
support the argument that 101 was intended to "restore" the prior understanding of
1981 as to cases arising before the 1991 Act's passage, for the 1991 Act contains no
comparable language to the "restoring" language in a predecessor 1990 civil rights bill
that was vetoed by the President, (b) the legislative history of the 1991 Act reveals that
retroactivity was recognized as an important issue, but falls short of providing evidence
of an agreement among legislators on the subject, and (c) 101 is not the sort of
provision that must be read to apply to pending cases on the ground that a contrary
reading would render 101 ineffective. (Blackmun, J., dissented from this holding;
Scalia, Kennedy, and Thomas, JJ., dissented in part from this holding.) Rivers v Roadway
Express (US) 128 L Ed 2d 274, 114 S Ct 1510.
With respect to 42 USCS 1981's prohibition against racial discrimination in the making
and enforcement of contracts, 101 of the Civil Rights Act of 1991in amending
1981has the effect not only of increasing liability, but also of establishing a new
standard of conduct, for (1) 101's amendment of 1981 to embrace all aspects of the
contractual relationship, including contact terminations, enlarges the category of conduct
that is subject to 1981 liability; (2) because 1981and hence 101is not limited to
employment and covers all contracts, a substantial part of 101's sweep does not overlap
Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.); and (3) even in the
employment context, 1981's coverage is broader than Title VII's, as Title VII applies to
only employers with 15 or more employees, whereas 1981 has no such limitation.
Rivers v Roadway Express (US) 128 L Ed 2d 274, 114 S Ct 1510.
Civil Rights Act of 1991 did not apply retroactively to case pending in district court at
time of its enactment. Wisdom v Intrepid Sea-Air Space Museum (1993, CA2 NY) 993
Plaintiff did not state a claim pursuant to 42 U.S.C. 1981 for discriminatory discharge
from his employment in 1986 because section 1981 did not govern a discriminatory
discharge action in 1986. Although the 1991 Civil Rights Act broadened the scope of
section 1981, the Fourth Circuit has decline to apply the act retroactively. Hawkins v
State (1995) 117 NC App 615, 453 SE2d 233, stay gr sub nom Hawkins v State (NC) 454
SE2d 664 and stay dissolved, writ granted, review gr sub nom Hawkins v State (NC) 455
SE2d 661.
Footnotes
Footnote 57. 2 USCS 601(a)(2)(A).
4. Employers Subject to Other Employment Laws [74- 76]
74 Generally; IRCA's antidiscrimination provisions

View Entire Section
The Immigration Reform and Control Act of 1986 (IRCA) covers private employers with
more than three employees 60 with respect to its prohibition against national origin and
citizenship discrimination. 61
In determining whether there are three or fewer employees for purpose of subjecting an
employer to IRCA's discrimination prohibitions, only part-time and full-time employees

that were employed on the date that the alleged discrimination occurred will be counted.
Title VII's 20-calendar-week durational requirement for employer coverage 62 will not
be used, except in determining whether the IRCA exception for employers charged with
national origin discrimination covered by Title VII applies. 63
Footnotes
Footnote 60. 119.
Footnote 61. 8 USCS 1324b(a)(2)(A).
Footnote 63. 52 Fed. Reg. 37402.
75 Employee Polygraph Protection Act

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The Employee Polygraph Protection Act (EPPA) covers a private "employer" that is
engaged in or is affecting commerce, or is in the production of goods for "commerce." 64
The meaning of the term "commerce" is the same for purposes of coverage under the
EPPA as it is under 29 USCS 203(b) in the Fair Labor Standards Act. 65 An
"employer" includes any person acting directly or indirectly in the interest of an
employer, in relation to an employee or applicant, 66 including state or private
employment agencies or placement services and trade schools that refer applicants to
employers, if such entities have reason to believe that an unlawful examination will be
conducted by the employer. 67 However, a polygraph examiner retained solely for the
purpose of administering polygraph examinations is not ordinarily viewed as the
"employer" of the test subject. 68 Nor does the Act apply to bona fide independent
contractors, such as truck owner-operators. 69
Private employers who are also government contractors with, or nongovernmental agents
of a governmental entity are covered by the Act, 70 despite the fact that the public
employer involved in such arrangements is exempted. 71
The Act also covers foreign corporations operating in the U.S., and any actions taken by
an employer within the territorial jurisdiction of the United States in connection with the
administration of a lie detector test to be done on the high seas or at a foreign location. 72
State aspects: Both private and public employers as well as other entities and
persons may be covered by state laws regulating the use of lie detectors. 73
75 ----Employee Polygraph Protection Act [SUPPLEMENT]

Statutes:
government, including the Employee Polygraph Protection Act of 1988. (2 USCS
Case authorities:
For independent polygraph examiner to be considered employer under Act, and therefore
subject to suit under 29 USCS 2005(c), he must have done more than simply
administer polygraph test. James v Professionals' Detective Agency (1995, ND Ill) 876 F
Supp 1013, 10 BNA IER Cas 590.
Terminated employee's complaint against polygraph examiner and his company is
dismissed to extent it claims liability under 29 USCS 2005(c)(1), where Employee
Polygraph Protection Act (29 USCS 2001 et seq.) creates liability against employer
and not against other entities, because examiner hired to perform discrete task of
examinations investigating particular theft at metals salvage yard cannot be considered
statutory "employer." Fallin v Mindis Metals (1994, ND Ga) 865 F Supp 834.
Claim of union member against union and its executive secretary- treasurer, alleging
violation of member's rights under 29 USCS 2001- 2009, is denied summarily, where
member refused polygraph test after his suspension for allegedly taking liquor from
employer, because neither defendant had economic control over member's employer or
acted in employer's interest, so neither defendant fell within scope of 29 USCS
2001(2). del Canto v ITT-Sheraton Corp. (1994, DC Dist Col) 865 F Supp 927, 9 BNA
IER Cas 1809.
Footnotes
As to the exemption for public employers, see 76.
Persons protected under the EPPA are discussed at 120.
Annotation: Employee's action in tort against party administering polygraph, drug, or
similar test at request of actual or prospective employer. 89 ALR4th 527.
Employee's refusal to take lie detector test as barring unemployment compensation.
18 ALR4th 307.

Footnote 69. 56 Fed Reg 9049, 3/4/91.
Footnote 71. 76.
Footnote 73. As to coverage information under state laws in the context of lie detector
testing, see the Employment Coordinator EP-20,000 et seq.
76 --Exemption for public employers

View Entire Section
The Employee Polygraph Protection Act (EPPA) does not apply to the U.S. Government,
or to any state or local government or their political subdivisions, 74 which includes
any entity created by a state or local government, and all individuals responsible to
elected or appointed public officials of those entities. 75 This exemption includes
wholly owned corporations and nonappropriated fund instrumentalities of the federal
government, 76 as well as all U.S. territories and possessions 77 and interstate
governmental agencies. 78
Footnotes
Annotation: Refusal to submit to polygraph examination as ground for discharge or
suspension of public employees or officers. 15 ALR4th 1207.
Footnote 77. 29 CFR 801.2(b)(2).
76.1 Coverage under federal family leave statute

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For purposes of the antidiscrimination provisions of the Family and Medical Leave Act
of 1993, 79 a covered employer is any public or private entity engaged in commerce or
in any industry or activity affecting commerce which employs 50 or more employees for
each working day during each of 20 or more calendar work weeks in the current or
preceding calendar year. This includes any person who acts, directly or indirectly, in the
interest of an employer to any employee and any successor in interest to the employer. 80
Observation: By defining an employer to include a "public agency," the Act

incorporates the Fair Labor Standards Act provision defining a public agency to
include, among others, state governments and public subdivisions, as well as the US
Postal Service and the US Postal Rate Commission. 81
The Act applies to local educational agencies, and private elementary or secondary
schools and eligible employees of such schools. 82 The term "local educational
agency" is defined in the Elementary and Secondary Education Act of 1965. 83
The Act also covers employees of the Federal Government, 84 with special provisions
applicable to employees of the U.S. Senate 85 and House of Representatives. 86
76.1 ----[New] Coverage under federal family leave statute [SUPPLEMENT]
Statutes:
2 USCS 60m, 60n, 1204-1213, were repealed in 1995 as part of the Congressional
Accountability Act of 1995, which makes certain laws applicable to the legislative
branch of the federal government. (2 USCS 1312) was enacted and makes the rights
and protection established by the Family and Medical Leave Act applicable to employees
as defined in 1301.
Footnotes
Footnote 79. For a discussion of such provisions, see 28., see 1.
Footnote 81. The pertinent FLSA provision may be found at 29 USCS 203(x).
Footnote 84. 5 USCS 6381 et seq. (leave for Civil Service Employees).
Footnote 85. 2 USCS 60m.

Footnote 86. 2 USCS 60n.
5. Labor Organizations [77-82]
77 Generally
View Entire Section
Whether an organization is a "labor organization" subject to job discrimination
prohibitions usually depends on whether it satisfies statutory definitions contained in the
pertinent federal 87 or state job discrimination laws. 88
Unions can also be subject to job discrimination laws when acting as employers 89 or
employment agencies. 90
State aspects: Almost all state FEP laws regulate the practices of labor unions and
organizations, even if they do not define those entities, and many states have
antidiscrimination coverage in equal pay, age and handicap laws, which coverage
applies to labor organizations.
Footnotes
Footnote 87. 78.
Footnote 88. 77.
78 Coverage under federal law

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To be covered under Title VII, 91 or the ADEA, 92 a union must both be a labor
organization 93 and be engaged in an industry affecting commerce. 94 Agents of labor
organizations also are covered as "labor organizations". 95
Effective July 26, 1992, 96 a "labor organization" is covered by the Americans with
Disabilities Act (ADA) if it satisfies the definition of that entity under Title VII. 97
A labor union also is covered by the Equal Pay Act (EPA). 98
78 ----Coverage under federal law [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Sufficiency of defendant's nondiscriminatory reason to rebut inference of sex
discrimination in promotion or demotion of employee as violation of Title VII of Civil
Rights Act of 1964 (42 USCS 2000e et seq.). 111 ALR Fed 1.
Footnotes
Footnote 91. 42 USCS 2000e(d).
Footnote 92. 29 USCS 630(d).
Footnote 93. 79.
Footnote 94. 80.
Footnote 95. 82.
79 What is a labor organization

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A "labor organization" under Title VII, 99 the ADEA, 1 and the EPA 2 is an
organization in which employees participate, and whose purpose is dealing with
employers concerning terms and conditions of employment. Consequently, a labor
organization representing U.S. government employees in their dealings with the

government is covered by Title VII. 3
There is a dispute as to whether a union is covered under Title VII when it deals with an
employer that does not meet the statute's coverage requirements. 4 While the Fifth
Circuit has held that Title VII does not cover a union in that situation, 5 the EEOC will
apply Title VII to a labor organization so long as it is engaged in an industry affecting
commerce, 6 whether or not it deals with covered employers. 7
79 ----What is a labor organization [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Case authorities:
Employee organization that was private entity certified under state law to represent
faculty members of state-owned universities was not labor organization for purposes of
Title VII, since there was no evidence that members of organization were engaged in
industry affecting interstate commerce, and there was no evidence that organization
maintained or operated hiring hall or hiring office. Saini v Bloomsburg Univ. Faculty
(1993, MD Pa) 62 BNA FEP Cas 711.
Footnotes
Footnote 3. Thomas v Biller (1989, ED NY) 50 CCH EPD 39097.
Footnote 5. Renfro v Office & Professional Employers International Union (1977, CA5)
Footnote 6. 80.
80 When is a labor organization engaged in an industry affecting commerce

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A labor organization is "engaged in an industry affecting commerce" for purposes of
coverage under Title VII 8 or the ADEA 9 if it either maintains or operates a hiring
hall that procures employment opportunities for employees, or if it has a specified
number of members, 10 and meets one of the following tests:
(1) it is the certified representative of employees under the National Labor Relations Act
or the Railway Labor Act;
(2) it is a national or international labor organization or a local labor organization
recognized or acting as the representative of employees of an employer or employers
engaged in an industry affecting commerce;
(3) it has chartered a local labor organization or subsidiary body that is representing or
actively seeking to represent employees of employers within the meaning of paragraphs
(1) or (2), above;
(4) it has been chartered by a labor organization representing or actively seeking to
represent employees within the meaning of paragraphs (1) or (2), above, as the local or
subordinate body through which those employees may enjoy membership or become
affiliated with the labor organization;
(5) it is a conference, general committee, joint or system board, or joint council
subordinate to a national or international labor organization engaged in an industry
affecting commerce within the meaning of paragraphs (1), (2), (3), or (4).
The NLRB's assertion of jurisdiction over an industry supports the inference that the
industry affects commerce, and that labor organizations engaged in the industry are,
therefore, subject to Title VII. Furthermore, a labor organization can be subject to Title
VII even when the NLRB has declined to assert jurisdiction over the industry. 11
80 ----When is a labor organization engaged in an industry affecting commerce
[SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 8. 42 USCS 2000e(e).
Footnote 9. 29 USCS 630(e).

Footnote 10. 81.
Footnote 11. Ballinger v Arlington Park Thoroughbred Race Track (1989, ND Ill) 1989
US Dist LEXIS 174.
81 Number of union members required for coverage when union does not operate
hiring hall
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Both under Title VII and the ADEA, a labor organization that does not maintain or
operate a hiring hall can still be engaged in an industry affecting commerce, and,
therefore, be covered by these statutes, if it meets one of five tests 12 and has 15 or
more members for Title VII purposes, 13 or 25 or more members for ADEA purposes,
14 including the aggregate number of members from any composite organizations.
81 ----Number of union members required for coverage when union does not
operate hiring hall [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 12. 80.
Footnote 13. 42 USCS 2000e(e)(2).
Footnote 14. 29 USCS 630(e)(2).
82 Agents of a labor organization

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Title VII, 15 the ADEA, 16 and the Equal Pay Act 17 cover agents of labor
organizations in the same manner as labor organizations for purposes of coverage under
the statute.
A labor organization's agent for Title VII purposes includes an individual union official.
18
82 ----Agents of a labor organization [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 18. Mills v Fox (1976, ED NY) 421 F Supp 519, 13 BNA FEP Cas 1009, 12
CCH EPD 11272.
6. Employment Agencies [83-92]
83 Generally
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Title VII, the ADEA, and the ADA regulate the conduct of employment agencies. 19 In
order to be covered, employment agencies must satisfy the statutory definitions in those
laws.
Observation: Under many statutory and regulatory definitions of employment

agencies, a labor organization or a private and public employer may be covered when
they are acting in the same capacity as an employment agency. 20
State aspects: Many state fair employment practice (FEP), equal pay, age
discrimination, and handicap discrimination laws have wide applicability to private
employers, including employment agencies. 21
2000e-2). 116 ALR Fed 1.
Case authorities:
In Title VII action against employment agency, agency can be classified as either
employer or employment agency, and capacity in which agency is sued determines
whether court has jurisdiction, because definition of employment agency does not include
any size requirement, whereas definition of employer does. Greenlees v Eidenmuller
Enters. (1994, CA5 Tex) 32 F3d 197.
Footnotes
Footnote 19. 84.
Footnote 20. For a discussion of employment agencies covered as "employers" under
federal and state job discrimination laws, see 39 et seq.
For a discussion of subdivisions of an employer that may be covered by immigration
laws because they refer individuals for employment for a fee, see 74 et seq.
Footnote 21. For a full discussion of these laws, see Employment Coordinator,
EP-16,755 et seq.
84 What is an employment agency

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Under Title VII 22 and the ADEA 23 a covered employment agency is a "person," as
defined in these laws, 24 or that person's agent, that regularly attempts to obtain
employees for an employer, or to obtain employment opportunities for potential
employees. It does not matter whether the person or agent receives compensation for
these activities. However, under the ADEA, an agency of the United States is not
considered an employment agency. 25
The word "regularly" limits the statutory coverage under the respective definitions to
organizations that engage to a significant degree in obtaining employees or employment
opportunities for potential employees, as a business or profession. 26
Thus,
organizations covered by Title VII and the ADEA have included a university's placement
office, where it was the primary source for employers to hire students and recent
graduates, 27 and a state employment agency that made decisions to award or deny
unemployment compensation benefits. 28
A newspaper printing help-wanted advertisements, however, did not meet the definition
of an employment agency. Although publishing the advertising might have furthered an
employment agency's business, the newspaper was not an employment agency's agent,
since publishing classified advertising does not constitute the business of employment
agencies under Title VII. 29
Once an employment agency regularly procures employees for at least one employer
covered by the ADEA 30 or Title VII, 31 it is covered with respect to all of its
activities, regardless of whether those activities are for covered employers. Furthermore,
an agency that regularly procures employees for employers, for temporary or permanent
placement, is an "employment agency" under Title VII. 32
Conversely, a nurses' registry was not a covered employment agency under Title VII
where it was not shown that the registry referred nursing applicants to hospitals and
doctors employing 15 or more employees, instead of to individual patients. 33 Also, an
American parent corporation was not acting as an employment agency under Title VII
when it contacted its wholly-owned foreign subsidiary about a job abroad, since the
foreign corporation was not covered by Title VII with respect to the employment of
persons outside the United States. 34
Effective July 26, 1992, 35 the Americans with Disabilities Act (ADA) adopts the same
definition of an "employment agency" that appears in Title VII. 36
84 ----What is an employment agency [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 22. 42 USCS 2000e(c).

Footnote 26. Brush v San Francisco Newspaper Printing Co. (1970, ND Cal) 315 F Supp
577, 2 BNA FEP Cas 811, 2 CCH EPD 10249, affd (CA9) 469 F2d 89, 5 BNA FEP
Cas 20, 5 CCH EPD 7981, cert den 410 US 943, 35 L Ed 2d 609, 93 S Ct 1369, 5
BNA FEP Cas 587, 5 CCH EPD 8463; Cannon v University of Chicago (1976, CA7)
559 F2d 1063, 12 CCH EPD 11175, 14 CCH EPD 7770, revd on other grounds 441
US 677, 60 L Ed 2d 560, 99 S Ct 1946, 19 CCH EPD 9202.
Footnote 27. Kaplowitz v University of Chicago (1974, ND Ill) 387 F Supp 42, 8 BNA
Footnote 28. EEOC Decision No. 78-40, 7/3/78.
Footnote 29. Greenfield v Field Enterprises, Inc. (1972, ND Ill) 4 BNA FEP Cas 548, 4
CCH EPD 7763.
Footnote 33. Schrock v Altru Nurses Registry (1985, ND Ill) 38 BNA FEP Cas 1709, 38
CCH EPD 35639, affd in part and vacated in part on other grounds (CA7) 810 F2d 658,
Footnote 34. Lavrov v NCR Corp. (1984, SD Ohio) 591 F Supp 102, 35 BNA FEP Cas
988, 37 CCH EPD 35401.
7. Farm Labor Contractors [85-92]
85 Generally
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The Migrant and Seasonal Agricultural Workers Protection Act (MSPA) 37 regulates
and controls the activities of farm labor contractors who, for a fee, provide farm workers
to agricultural employers. 38 Under the MSPA, a "farm labor contractor" is a "person"
who performs "farm labor contracting activity" in exchange for a fee or the promise of
payment. 39
A "person" is an individual, partnership, association, joint stock
company, trust, cooperative, or corporation. 40 "Farm labor contracting activity" means
the recruiting, soliciting, hiring, employing, furnishing, or transporting of a migrant or
seasonal agricultural worker. 41
All middlemen, not just those at the bottom of the chain from farmer to migrant worker,
are covered by the MSPA. Thus, an individual who provided farmers with migrant
workers by determining the number of workers required, contacting crew members, and
insuring that the harvest proceeded properly, was a "farm labor contractor." 42
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 38. 86.
Exemptions from the definition of "farm labor contractor" are discussed at 92.
Annotation: What constitutes "agricultural employment" subject to provisions of
Migrant and Seasonal Agricultural Workers Protection Act (29 USCS 1801 et
seq.). 91 ALR Fed 735.
Federal Labor Relations Act provisions relating to agricultural laborers. 28 ALR2d
391.
What constitutes "agricultural" or "farm" labor within Social Security or
Unemployment Compensation Acts. 53 ALR2d 406.
Contracts, Form 22.

Migrant and seasonal workers are discussed in 121 and discussed in 122.
Footnote 42. Soliz v Plunkett (1980, CA5) 615 F2d 272.
86 Who are "agricultural employers and associations"

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Under the Migrant and Seasonal Agricultural Workers Protection Act (MSPA) 43 an
"agricultural employer" is a "person" 44 who owns or operates a farm, ranch, processing
establishment, cannery, gin, packing shed, or nursery, or who produces or conditions
seed, and who either recruits, solicits, hires, employs, furnishes, or transports a "migrant
or seasonal agricultural worker." 45
An "agricultural association" is a nonprofit or cooperative association of farmers,
growers, or ranchers, incorporated or qualified under an applicable state law, that
recruits, solicits, hires, employs, furnishes, or transports any migrant or seasonal
agricultural worker. 46
86 ----Who are "agricultural employers and associations" [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 43. 29 USCS 1801 et seq, discussed at 85.
Footnote 44. 85.
Migrant or seasonal agricultural workers are discussed at 121 and discussed at
122.
87 What is "agricultural employment"

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Under the Migrant and Seasonal Agricultural Workers Protection Act (MSPA) 47
"agricultural employment" includes the handling, planting, drying, packing, packaging,
processing, freezing, or grading prior to delivery for storage of any agricultural or
horticultural commodity in its unmanufactured state. The term also covers those
activities as described in the Fair Labor Standards Act 48 and 3121(g) of the Internal
Revenue Code. 49
Forestry workers who raise trees as a crop for harvest are engaged in "agricultural
employment" under the MSPA. Therefore, the Act applies to migrant and seasonal
commercial forestry workers. 50
87 ----What is "agricultural employment" [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 47. 29 USCS 1801 et seq., discussed at 85.
As to tax considerations, see Federal Tax Coordinator 2d, H-4900 et seq.
Footnote 50. Fifth CircuitBracamontes v Weyerhaeuser Co. (1988, CA5) 840 F2d 271,
108 CCH LC 35046, cert den (US) 102 L Ed 2d 113, 109 S Ct 141, 110 CCH LC
35123.
Ninth CircuitBresgal v Brock (1987, CA9) 833 F2d 763, 107 CCH LC 34990, amd on
other grounds (CA9) 843 F2d 1163.
Eleventh CircuitDavis Forestry Corp. v Smith (1983, CA11) 707 F2d 1325, 98 CCH LC
34402.
b. Exemptions from Coverage Under the MSPA [88- 92]
88 Generally
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Exemptions under the Migrant and Seasonal Agricultural Workers Protection Act
(MSPA) 51 are narrowly construed. Entities seeking an exemption must demonstrate
that their activities are plainly and unmistakably within the terms and spirit of listed
exemptions. 52
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 52. Donovan v Heringer Ranches, Inc. (1981, CA9) 650 F2d 1152, 92 CCH LC
34051.
The listed statutory exemptions from coverage are discussed at 89 et seq.
Contracts, Form 22.
89 Agricultural employers and associations

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The Migrant and Seasonal Agricultural Workers Protection Act (MSPA) 53 expressly
distinguishes between contractors and farm producers 54 and exempts an "agricultural

employer" or "agricultural association," or employees of those entities, 55 from
coverage as a farm labor contractor 56 with respect to the Act's registration
requirements. 57
The exemption from registration for "agricultural employers" includes vineyard
management companies that operate vineyards, but do not own them. The purpose of the
exemption is to free employers from registration requirements if they have a fixed
location and can be readily found. Since vineyard management companies that
contracted with vineyard owners to perform all of the operations necessary to manage the
vineyards throughout the yearly cycle of preparation, growth, and harvest were attached
to the vineyards they managed for an entire year, they were as easily found as an owner
or lessor and, therefore, fell within the exemption. 58
Observation: To come within the MSPA's "agricultural employer" registration

exemption, an agricultural middleman who operates but does not own a farm needs to
show a clear, long-term attachment to the land itself and de-emphasize its connection
with supplying labor for the farm operation. In this respect, the vineyard management
companies in Mendoza, above, were distinguished from traditional transient "crew
leaders" whom the MSPA was designed to hold accountable.
89 ----Agricultural employers and associations [SUPPLEMENT]
Practice Aids: Employment DiscriminationTitle VII Prohibits Fetal Protection Policy
That Excludes All Fertile Women From Positions Involving Lead Exposure
International Union, United Auto Workers v Johnson Controls, Inc, Ervin, 14 U Ark
Little Rock LJ No. 2 P 217 (Winter 1992).
Case authorities:
FECA's exclusivity provisions were not applicable to postal worker's sex discrimination
claim since harm suffered is not "injury" within FECA's meaning, and relief under Title
VII in form of back pay is purely equitable, while relief under FECA is compensatory
and exclusivity provisions are limited solely to other forms of compensation. Nichols v
Frank (1994, CA9 Or) 42 F3d 503, 94 CDOS 8992, 94 Daily Journal DAR 16780, 66
BNA FEP Cas 614, 65 CCH EPD 43410, mod (1994, CA9 Or) 94 CDOS 9438, 94
Daily Journal DAR 17472.
Footnotes
Footnote 55. 86.

Footnote 56. 85.
As to the Act's registration requirements, see 1198.
Footnote 58. Mendoza v Wight Vineyard Management (1986, CA9) 783 F2d 941, 103
CCH LC 34745.
90 Family businesses
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The Migrant and Seasonal Agricultural Workers Protection Act (MSPA) 59 exempts a
"family business" from the coverage of the Act. A "family business" is an individual
who engages in a farm labor contracting activity on behalf of a farm, processing
establishment, seed conditioning establishment, cannery, gin, packing shed, or nursery,
that is owned or operated exclusively by that individual or by an immediate member of
his family. 60
Since this exemption, like all exemptions under the MSPA, is construed narrowly, 61 it
did not apply when farm labor contracting activity was performed by nonfamily
members. 62 Farm labor contractors also did not qualify for the family business
exemption because of routine use of nonfamily members to provide transportation for
workers to and from the fields, 63 and recruiting efforts by a nonfamily member. 64
90 ----Family businesses [SUPPLEMENT]
Practice Aids: Construction and application of sec. 4(a)(1) of Migrant and Seasonal
Agricultural Worker Protection Act of 1983 (29 USCS sec. 1803(a)(1)), providing
family business exemption from provisions of Act 123 ALR Fed 189.
Footnotes

Footnote 61. 88.
Footnote 62. Martinez v Berlekamp Farms, Inc. (1986, ND Ohio) 635 F Supp 1191, 105
CCH EPG 34867, holding that a farm owned solely by family members that used
independent third-party crew leaders in its farm operation did not qualify for this
exemption. Although it did not contract with, recruit, house, find employment for, or in
any way deal with migrant farm workers for purposes other than its own operations, it
sometimes used migrant workers in its business and, in that regard, did so only through
independent third-party crew leaders.
Footnote 63. Caleron v Witvoet (1991, CD Ill) 1991 US Dist LEXIS 7378.
Footnote 64. Martinez v Shinn (1991, ED Wash) 1991 US Dist LEXIS 6985.
91 Small businesses
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The Migrant and Seasonal Agricultural Workers Protection Act (MSPA) 65 exempts a
"small business" from the requirements of the Act. A "small business" is a person, other
than a "farm labor contractor," 66 who is eligible for the man-days exemption regarding
agricultural labor under the Fair Labor Standards Act. 67
Footnotes
Footnote 66. 85.
92 Farm labor contractors

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Migrant and Seasonal Agricultural Workers Protection Act (MSPA) 68 exemptions
from the coverage of "farm labor contractors" 69 include:
(1)a common carrier that would be a farm labor contractor solely because it transports
migrant or seasonal agricultural workers; 70
(2)a labor organization as defined in 2(5) of the Labor Management Relations Act or
under applicable state labor relations law; 71
(3)a nonprofit charitable organization or public or private nonprofit educational
institution; 72
(4)a person engaged in farm labor contracting activity entirely within a 25-mile radius of
that person's permanent place of residence for not more than 13 weeks per year, when
that activity occurs entirely within the same state; 73
(5)a custom combine, hay harvesting, or sheep shearing operation; 74
(6)a custom poultry harvesting, breeding, debeaking, desexing, or health service
operation (even though the employees of the operation may be reguarly required to be
away from their permanent place of employment only during their normal working
hours); 75
(7)a person who supplies full-time students or other individuals to string or harvest shade
grown tobacco or to detassel, rogue, or otherwise engage in the production of seed or in
related and incidental agricultural employment, if the principal occupation or business of
that person and of the individuals is not agricultural employment, the individuals are not
required to be away from their permanent place of residence overnight, and individuals
under 18 years of age do not provide transportation on behalf of that person; 76
(8)a person who is supplied with the type of workers described in (7) above; 77 and
(9)an employee of a person described in (1) through (8), above, when that employee
performs farm labor contracting activities esclusively for that person. 78
Footnotes
Footnote 69. 85.
Footnote 70. 29 USCS 1803(a)(3)(A).
Footnote 71. 29 USCS 1803(a)(3)(B).
Footnote 72. 29 USCS 1803(a)(3)(C).
Footnote 73. 29 USCS 1803(a)(3)(D).
Footnote 75. 29 USCS 1803(a)(3)(F).
Footnote 76. 29 USCS 1803(a)(3)(G),(H).

Footnote 77. 29 USCS 1803(a)(3)(G),(H).
Footnote 78. 29 USCS 1803(a)(3)(I).
8. Labor-Management Training Committees [93, 94]
93 Generally
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The conduct of joint labor-management committees is covered by the ADA and Title VII.
79
State aspects: Many state job discrimination laws cover joint labor-management
training committees. 80
Footnotes
Footnote 79. 94.
Footnote 80. For a full discussion of these laws, see Employment Coordinator,
EP-16,755 et seq.
94 Coverage under Title VII and the ADA

View Entire Section
While joint labor-management training committees are regulated under Title VII, they are
not defined in the statute. However, Title VII's prohibition against discrimination in
training covers activities of joint labor- management training committees that control
training, retraining, on-the-job training, or apprenticeship programs. 81
Effective July 26, 1992, 82 the Americans with Disabilities Act (ADA) covers joint
labor- management committees for purposes of employment discrimination. 83
However, like Title VII, the statute does not expressly define that entity.
Footnotes

9. Government Contractors Subject to Job Discrimination Laws [95-102]
95 Generally
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Go to Supplement
An employer that enters into a contract with the federal government may be subject to the
nondiscrimination requirements of Executive Order 11246, 84 503 of the
Rehabilitation Act, the Vietnam Era Veterans Readjustment Assistance Act, 85 or the
Americans with Disabilities Act 86 unless it is specifically exempted.
Government contractors may also be covered by the discriminatory prohibitions of state
job discrimination laws. 87
State aspects: In many states the fair employment practice (FEP), equal pay, age
discrimination, and handicap discrimination laws cover government contractors. 88
Case authorities:
Professor who was serving under contract of unlimited tenure with university that had
age 70 mandatory retirement policy, came within purview of 29 USCS 631(d)
exemption, despite his contention that when university granted him one year extension of
his otherwise involuntary retirement date, his contract of unlimited tenure ended and
became contract of limited tenure, because professor was not in fact teaching under one
year contract, but was still unlimited tenured professor. Crozier v Howard (1993, CA10
Okla) 63 BNA FEP Cas 602.
Footnotes
Footnote 84. 97 and 98.
Footnote 85. 99.
Footnote 86. 100.

Footnote 88. For a discussion of these laws, see Employment Coordinator, EP-16,860
et seq.
96 Who is a government contractor

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Under Executive Order 11246, 89 the Rehabilitation Act of 1973, 90 and the Vietnam
Era Veterans Readjustment Assistance Act, 91 a "contractor" is a prime contractor or
subcontractor who contracts with the federal government. A "government contract" is an
agreement between the contracting federal agency and any person for supplies and
services and for the use of real or personal property, including lease arrangements. 92
Footnotes
Footnote 89. 41 CFR 60- 1.3.
Footnote 91. 41 CFR 60-250.1.
Footnote 92. 41 CFR 60-1.3, 741.2, 60-250.1.
97 Executive Order 11246 coverage requirements

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Except for contracts exempted by regulation, all federal government contracts must
contain an equal employment opportunity clause. 93 The Secretary of Labor may
exempt certain classes of contracts and subcontracts from Executive Order 11246's
requirements. 94
Thus, under the regulations, Executive Order 11246 covers all contractors 95 with a
federal construction contract or with a federally assisted construction 96 or
noncontruction contract in excess of $10,000. 97 Written affirmative action programs
for women and minorities must be developed and implemented by all nonconstruction
contractors with 50 or more employees and who either:
have a prime contract or subcontract exceeding $50,000;

have Government bills of lading totaling, or which reasonably can be expected to total,
$50,000 or more in a 12-month period;
serve as a depository of Government funds;
are a financial institution that is an issuing and paying agent for U.S. savings bonds and
savings notes. 98
The Executvive Order applies to federally assisted construction contractors having
employees engaged in on-site construction, including employees working on a
nonfederally assisted construction site. It also covers construction work performed by
construction contractors for federal nonconstruction contractors, if the construction work
is necessary to perform the nonconstruction contract. 99
Observation: An applicant for federal financial assistance who enters into an

agreement involving federally assisted construction is bound by the Executive Order's
nondiscrimination and affirmative action requirements only when it participates in the
construction and not in its other activities.
However, contractors are exempted from the requirements of Executive Order 11246
when:
the contractor maintains facilities that are separate and distinct from the activities
related to his performance of the contract, but the exemption applies only to the distinct
facilities;
the work is performed outside of the United States and no recruitment within the United
States is involved;
contracts total less than the amount required for coverage in a 12- month period or are
for indefinite quantities and are expected to total less than the coverage amount in a
12-month period. 1
In addition, the Director of the OFCCP may may waive the nondiscrimination
requirements of the Executive Order with respect to particular contracts when he
determines that special circumstances in the national interest require such a waiver. Also,
he may exempt groups of contracts of the same type where it is impractical to act on each
separately, or when group exemptions will make administration of the Order more
convenient. 2 The Director may also exempt any of a contractor's facilities which are
separate and distinct from the contractor's activities related to performance of the contract
where the exemption will not interfere with implementing the Order. 3
Footnotes
Footnote 93. Ex Or 11246 202.
Footnote 95. 96.

Footnote 96. 41 CFR 60-4.1
Footnote 97. 41 CFR 60-1.4(a)(7), 1.5.
Footnote 98. 41 CFR 60- 1.40(a).
Footnote 99. 41 CFR 60- 1.4.1.
Footnote 1. Ex Or 11246 204, 41 CFR 60.1.5.
Footnote 2. 41 CFR 60-1.5(b)(1).
Footnote 3. 41 CFR 60-1.5(b)(2).
98 Validity of government contractor coverage under Executive Order 11246

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The President's power under Executive Order 11246 to impose fair employment
conditions on government contractors has been upheld both in the context of contracts
made directly with the federal government, 4 and in the context of federally assisted
state construction contracts. 5
Footnotes
Footnote 4. Farmer v Philadelphia Electric Co. (1964, CA3) 329 F2d 3, 1 BNA FEP Cas
36, 55 BNA LRRM 2685, 1 CCH EPD 9689, 49 CCH LC 31540; Farkas v Texas
Instrument, Inc. (1967, CA5) 375 F2d 629, 1 BNA FEP Cas 890, 71 BNA LRRM 3154, 1
CCH EPD 9777, 55 CCH LC 9049, cert den 389 US 977, 19 L Ed 2d 471, 88 S Ct
480, 1 BNA FEP Cas 894, 71 BNA LRRM 3157, 1 CCH EPD 9830, 56 CCH LC
9095.
Footnote 5. Contractors Asso. of Eastern Pennsylvania v Secretary of Labor (1971, CA3)
442 F2d 159, 3 BNA FEP Cas 395, 3 CCH EPD 8180, cert den 404 US 854, 30 L Ed
99 Rehabilitation Act and Vietnam Era Veterans Readjustment Assistance Act

coverage requirements
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Government contractors 6 entering into federal contracts for a specified minimum
amount of money that involve personal property or nonpersonal services, including
construction, have affirmative action obligations under both the Rehabilitation Act 7
and Vietnam Era Veterans Readjustment Assistance Act. 8 Contractors are covered
under the Rehabilitation Act when the contract totals $2,500 or more, 9 and under the
Vietnam Era Veterans Readjustment Assistance Act when the contract totals $10,000 or
more. 10
Contractors are also required to prepare and maintain affirmative action programs at each
establishment under the Rehabilitation Act 11 and the Vietnam Era Veterans
Readjustment Assistance Act 12 if they have contracts of $50,000 or more and have at
least 50 employees.
However, contractors are exempted from the requirements of the Rehabilitation Act and
the Vietnam Veterans Readjustment Assistance Act when:
the contractor maintains facilities that are separate and distinct from the activities
related to his performance of the contract, but the exemption applies only to the distinct
facilities;
the work is performed outside of the United States and no recruitment within the United
States is involved;
contracts total less than the amount required for coverage in a 12-month period, or are
for indefinite quantities and are expected to total less than the coverage amount in a
12-month period. 13
The President also may waive the nondiscrimination requirements of the Rehabilitation
Act with respect to particular contracts when he determines that special circumstances in
the national interest require such a waiver and states his reasons in writing. 14
99 ----Rehabilitation Act and Vietnam Era Veterans Readjustment Assistance Act
coverage requirements [SUPPLEMENT]
Statutes:
government, including the Rehabilitation Act of 1973. (2 USCS 1311) provides for the
specific rights and protection under the Act.
In 1992, the dollar amount specified in 29 USCS 793(a) for contracts under the
Rehabilitation Act was increased. 29 USCS 793(c)(2) was added to allow the Secretary
of Labor to waive certain affirmative action requirements under the Act.
Regulations:
41 CFR 60-741.1 et seq., regarding affirmative action and nondiscrimination

obligations of contractors and subcontractors as to individuals with disabilities, were
revised significantly in 1996 to (1) conform to EEOC regulations implementing Title I of
the Americans with Disabilities Act of 1990, (2) incorporate recent amendments to
section 503 of the Rehabilitation Act of 1973, and (3) strengthen and clarify various
existing provisions relating to affirmative action, recordkeeping, enforcement, and other
issues. The revised rule, which should be checked, is divided into five subparts: 41 CFR
60-741.1-60.741.5 (preliminary matters and equal opportunity clause), 41 CFR
60-741.20-60.741.25 (prohibition against discrimination), 41 CFR
60-741.40-60.741.45 (affirmative action program), 41 CFR 60-741.60-60.741.70
(general enforcement and complaint procedures), and 41 CFR 60-741.80-60.741.84
(ancillary matters). Applicability of the affirmative action program requirement is now
covered in 41 CFR 60-741.40.
Case authorities:
Interpretation of Rehabilitation Act is question of law that court of appeals reviews de
novo. Doe by Lavery v Attorney Gen. of the United States (1995, CA9 Cal) 44 F3d 715,
8 ADD 60, 95 CDOS 440, 95 Daily Journal DAR 823.
Footnotes
Footnote 6. 96.
Annotation: Who is "qualified" handicapped person protected from employment
discrimination under Rehabilitation Act of 1973 (29 USCS 701 et seq.) and
regulations promulgated thereunder, 80 ALR Fed 830.
Footnote 11. 41 CFR 60-741.5(a).
Footnote 12. 41 CFR 60- 250.5(a).
Footnote 13. 41 CFR 60-714.3, 60-250.3.
100 ADA coverage requirements

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Government contractors are covered by the Americans with Disabilities Act (ADA),
which requires the Equal Employment Opportunity Commission and the Office of
Federal Contract Compliance Programs to provide procedures for processing charges and
complaints within the overlapping jurisdiction of those agencies under the ADA and the
Footnotes
Footnote 15. 29 CFR 1641.1; 41 CFR 60-742.1.
101 Coverage of state and local government contractors

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State and local governments that contract with the federal government are covered by
Executive Order 11246, 16 the Rehabilitation Act of 1973, 17 and the Vietnam Era
Veterans Readjustment Assistance Act of 1974. 18 However, agencies, subdivisions, or
instrumentalities of those governments are not required to comply with the contract's
affirmative action clause under any of these laws if they do not participate in work on or
under the contract. 19 This does not mean, however, that each branch of a state agency
must have a government contract in order to subject all branches to the affirmative action
requirements of these laws. For example, individual campuses within a state university
system were treated as a single agency under state law. Therefore, all 16 campuses were
"contractors" under these laws even though only 11 of them had government contracts.
Individual campuses enjoyed some measure of autonomy, but their power to contract was
subject to centralized review. 20
101 ----Coverage of state and local government contractors [SUPPLEMENT]
Regulations:

(ancillary matters).
Footnotes
Footnote 16. 41 CFR 60- 1.5(a)(4).
Footnote 19. 41 CFR 60-1.5(a)(4), 60-741.3(a)(4), 60-250.2(a)(4).
Footnote 20. Board of Governors of University of North Carolina v U.S. Dept. of Labor
(1990, CA4) 917 F2d 812, 54 BNA FEP Cas 136, 135 BNA LRRM 2760, 55 CCH EPD
40370, cert den (US) 114 L Ed 2d 100, 111 S Ct 2013, 55 BNA FEP Cas 1104, 56
CCH EPD 40801.
102 Coverage where contract is for indefinite quantities

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A contractor must abide by the nondiscrimination and affirmative action obligations in a
contract 21 for an indefinite quantity unless the contracting agency has reason to believe
that the amount to be ordered in any year will be less than the amount required for
coverage under Executive Order 11246, 22 the Rehabilitation Act, or the Vietnam Era
Veterans Readjustment Assistance Act. 23 These delivery-type contracts include open
end contracts, requirement-type contracts, Federal Supply Schedule contracts, call-type
contracts, and purchase notice agreements.
The applicability of the above mentioned laws to such contracts is determined annually,
beginning with the time of the award. However, the laws are applied whenever the
amount of a single order exceeds the requisite amount, and the contractor remains subject
to the law for the duration of the contract, regardless of the amount ordered during a year.
24
For the aggregation rules to apply, there normally is a general or master contract between
the government and the employer when the alleged discrimination occurred. Three
separate instances of an advertising agency's placement of ads for a government agency
in the employer's newspaper did not qualify as such a contract, and the minimum
coverage amount under the Rehabilitation Act therefore could not be obtained by
aggregating the total amount paid for the multiple ads. Instead, each purchase order was
a separate contractual agreement. 25
102 ----Coverage where contract is for indefinite quantities [SUPPLEMENT]

Regulations:
Footnotes
Footnote 21. 96.
Footnote 22. 97.
Footnote 23. 99.
Footnote 24. 41 CFR 60-1.5(a)(2), 60-741.3(a)(2), 60- 250.3(a)(2).
Footnote 25. Burnett v Brock (1986, CA11) 806 F2d 265, 42 CCH EPD 36915.
10. Recipients of Government Funds [103-109]
103 Generally
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Certain recipients of government funds are covered by the antidiscrimination provisions
of Title VI of the 1964 Civil Rights Act, Title IX of the Education Amendments of 1972,
and 504 of the Rehabilitation Act, as well as a variety of state job discrimination laws.
26
An individual or entity must be a recipient of federal financial assistance 27 and must be
engaged in a covered program or activity, 28 in order to be subject to federal law. 29

Case authorities:
29 USCS 1591(e) does not deprive Secretary of Labor of authority to recover misspent
CETA funds where proceedings were commenced after purported sunset date (September
30, 1984). City of Newark v United States Dep't of Labor (1993, CA3) 2 F3d 31.
Temporary part-time telephone operator has claim under 29 USCS 794 denied
summarily, even if she was discriminated against on account of spina bifida condition,
where it is undisputed that her employment with private corporation was in no respect
program or activity receiving federal financial assistance, because Rehabilitation Act (29
USCS 701 et seq.) is not applicable to case. Gore v GTE South (1996, MD Ala) 917
F Supp 1564, 15 ADD 115.
Summary judgment is granted to employer in action by employee alleging that he was
fired in violation of 504 of Rehabilitation Act (29 USCS 794) where employee failed
to provide any deposition, answer to interrogatories, admission, or affidavit showing that
federal financial assistance had been extended to employer. Schrader v Gulf Oil (1994,
ED Pa) 7 ADD 358.
Footnotes
Footnote 26.
State aspects State job discrimination statutes covering the recipients of government
funds are discussed in the Employment Coordinator at 16,965 et seq.
Footnote 27. 106.
Footnote 28. 104.
Footnote 29. For a discussion of the coverage of the disability discrimination prohibitions
in the Americans with Disabilities Act (ADA) that pertain to the programs and activities
of public entities, regardless of whether such entities receive federal financial assistance,
see 28 et seq.
104 What programs or activities are covered

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A "program or activity" covered under Title IX of the Education Amendments of 1972,
30 504 of the Rehabilitation Act, 31 and Title VI of the 1964 Civil Rights Act, 32
receives federal financial assistance 33 and includes (1) a department, agency, special
purpose district, or other state or local government instrumentality, (2) a college,
university, postsecondary institution, public system of higher education, local educational

agency (as defined by the Elementary and Secondary Education Act of 1965), system of
vocational education, or other school system, (3) a corporation, partnership, other private
organization, sole proprietorship, or (4) an entity established by two or more of the above
entities.
Observation: While the statutes uniformly define "program or activity," they do not
define "recipient." The regulations, on the other hand, uniformly refer to "recipients,"
instead of "programs or activities" when discussing entities covered by these statutes.
For the regulations not to exceed their statutory authority, these terms must logically
mean the same thing, although this is not stated expressly in the statutes or the
regulations.
A "recipient" under Title VI, 34
and 504 of the Rehabilitation Act 35
includes such entities receiving federal financial assistance, either directly or indirectly,
36 for any program. A "recipient" also includes the recipient's successors, assignees,
and transferees. However, it does not include an ultimate beneficiary under such
programs.
Furthermore, a "recipient" under Title IX includes the recipient's successors, assignees, or
transferees. 37
States are not immune under the Eleventh Amendment to the U.S. Constitution from
coverage under 504 of the Rehabilitation Act, Title IX of the Education Amendments
of 1972, the Age Discrimination Act of 1975, Title VI of the 1964 Civil Rights Act, or
any other federal statute prohibiting discrimination by recipients of federal financial
assistance with respect to violations that occur wholly or partially after October 21, 1986.
38
However, while the statute encompasses local government instrumentalities, an entire
municipality is not a program or activity receiving federal financial assistance. Thus, the
City of Chicago was not covered under 504. 39
Since 504 covers individuals receiving federal funds, agents of an entity receiving
federal financial assistance, although not expressly defined by the Act as a "recipient,"
are also responsible for the discriminatory policies carried out by a recipient. 40
104 ----What programs or activities are covered [SUPPLEMENT]
Regulations:
33 CFR 24, dealing with Department of Transportation, Coast Guard, was removed in
December 1992.
Case authorities:
Congress' intention in its 1987 amendment to 504(b)(1)(A) (29 USCS 794(b)(1)(A))
was to clarify that when entity provides several programs and activities, statute applies to
all such programs and activities so long as one or more of them receives federal funds.
Gorman v Bartch (1996, WD Mo) 925 F Supp 653, 15 ADD 658.
Footnotes
Footnote 30. 20 USCS 1687(1)-(4).
Footnote 31. 29 USCS 794(b)(1)- (4).
Footnote 32. 42 USCS 2000d-4a (1)-(4).
Footnote 33. 106.
Footnote 34. 5 CFR 900.403(f)(Office of Personal Management); 7 CFR 15.2(e)
(Agriculture); 10 CFR 4.3 Subpart B(a) (Nuclear Regulatory Commission); 10 CFR
4.3(h) (Nuclear Regulatory Commission); 14 CFR 1250.102(i) (Nat'l Aeronautics &
Space Admin); 15 CFR 8.3(i) (Dept of Commerce); 18 CFR 705.1(f) (Water
Resources Council); 18 CFR 1302.3(b) (Tennessee Valley Authority); 22 CFR
141.12(g) (Dept. of State); 22 CFR 209.3(h) (Agency for Internat. Development,
IDCA); 24 CFR 1.2(f) (Dept of Housing & Urban Develop); 28 CFR 42.102(f)
(Dept of Justice); 29 CFR 31.2(h) (Dept of Labor); 29 CFR 1691.13(g) (Equal
Employment Opportunity Commission); 32 CFR 300.2(g) (Dept of Defense); 33 CFR
24.55(g) (DOT, Coast Guard); 34 CFR 100.13(i) (Dept of Education); 38 CFR
18.13(h) (Veterans Admin); 43 CFR 17.12(h) (Dept of Interior); 44 CFR 7.2(f)
(Federal Emergency Management Agency); 45 CFR 80.13(i) (Department of Health
and Human Services); 45 CFR 611.13(h) (Nat'l Science Foundation); 45 CFR
1110.13(i) (Nat'l Found for Arts & Humanities); 45 CFR 1203.3(f) (Action); 49 CFR
21.23(f) (Dept of Transportation).
Footnote 35. 5 CFR 900.703(a) (Office of Personnel Management); 7 CFR 15b.3(f)
(Department of Agriculture); 10 CFR 4.3 Subpart B(h) (Nuclear Regulatory
Commission); 14 CFR 1251.102(d) (National Aeronautics and Space Administration);
15 CFR 86.3(i) (Dept. of Commerce); 18 CFR 1307.1(b) (Tennessee Valley
Authority); 22 CFR 142.3(f) (Department of State); 22 CFR 217.3(e) (Agency for
Internat. Development, IDCA); 28 CFR 42.540(e) (Department of Justice); 29 CFR
32.3 (Dept. of Labor); 32 CFR 56.3(g) (Department of Defense); 34 CFR 104.3(f)
(Department of Education); 38 CFR 18.403(f) (Veterans Administration); 43 CFR
17.202(f) (Office of the Secretary of the Interior); 45 CFR 84.3(f) (Department of
Health and Human Services); 45 CFR 605.3(f) (National Science Foundation); 45 CFR
1151.3(e) (Nat'l Foundation on the Arts and Humanities); 45 CFR 1170.3(i) (Nat'l
Foundation on the Arts and Humanities); 45 CFR 1232.3(d) (ACTION); 49 CFR
27.5 (Dept of Transportation).
Footnote 36. 107.
Footnote 37. 7 CFR 15a.2(e) (Department of Agriculture); 34 CFR 106.2(h)
(Department of Education, Office of Civil Rights).
Footnote 38. 42 USCS 2000d-7(a)-(b).
Footnote 39. Schroeder v Chicago (1989, ND Ill) 715 F Supp 222, 50 BNA FEP Cas 582,
51 CCH EPD 39325.
Footnote 40. Chaplin v Consolidated Edison Co. (1984, SD NY) 587 F Supp 519, 35
105 What educational institutions and activities are covered under Title IX
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Besides the coverage requirements concerning a "program or activity" under Title IX, 41
a "recipient" under Title IX must also operate an education program or activity receiving
or benefiting from the assistance. 42
Under Title IX, an "educational institution" is a public or private preschool, elementary,
or secondary school, or an institution of vocational, professional, or higher education.
However, where an educational institution has more than one school, college, or
department that are administratively separate units, the term refers to each school,
college, or department. 43 Thus, Title IX did not cover a Veterans Administration
hospital that merely permitted rotation of a surgical training program's residents through
its wards as part of their training. The program was the "educational institution," not the
Veterans Administration, its staff, or higher echelons. 44
However, Title IX exempts some educational institutions and activities from its coverage,
such as educational institutions controlled by a religious organization, if application of
the statute is inconsistent with the "religious tenets" of the organization. 45 This
"religious tenet" exemption is as extensive in scope as Title IX's coverage of education
programs. Thus, the exemption includes a religiously controlled education program or
activity that receives federal financial assistance, even if it is not part of an educational
institution. 46
Other notable Title IX exemptions from coverage include:
educational institutions whose primary purpose is the training of individuals for the
military services of the United States or the merchant marine; 47
public institutions of undergraduate higher education that have traditionally and
continually from their establishment had a policy of admitting only students of one sex;
48
the membership practices of a tax-exempt social fraternity or social sorority, where the
active membership primarily consists of students attending an institution of higher
education, or of the Young Men's or Young Women's Christian Association, Girl or Boy
Scouts, Camp Fire Girls, and other exempt youth service organizations with a
membership traditionally limited to one sex and principally limited to persons under
nineteen years old; 49
American Legion programs undertaken in connection with Boys or Girls State
conferences, Boys or Girls Nation conferences, or any secondary school or educational

institution's program or activity to promote such conferences or to select students to
attend them; 50
father-son or mother-daughter activities at educational institutions; 51
institution of higher education scholarship awards in beauty pageants that are limited to
individuals of only one sex. 52
105 ----What educational institutions and activities are covered under Title IX
[SUPPLEMENT]
Case authorities:
University, its president, and athletic director violated 20 USCS 1681-1688 by
discriminating against women in operation of intercollegiate athletic program, because
university failed to fully and effectively accommodate interests of women because it (1)
maintained water polo at club status and demoted gymnastics volleyball where these
teams demonstrated interests and ability to operate as varsity teams, and (2) failed to
maintain and support women's donor-funded teams at university's highest level. Cohen v
Brown Univ. (1995, DC RI) 879 F Supp 185.
In suit brought by student dentist against college of dentistry alleging sexual harrassment
by patient, assuming patient's conduct at time administrator learned of it was suffiently
severe to give rise to discriminatorily hostile environment, administrator's admonitions to
patient to stop, without allegation that administrator was informed that admonition was
not heeded, cannot give rise to inference that college had any notice that harassment
continued. Murray v New York Univ. College of Dentistry (1995, CA2 NY) 57 F3d 243,
Title IX (20 USCS 1681) claim against high school teacher must fail, even though
teacher, as school authority in control of classroom at time of at least some of alleged
acts of sexual harassment, is proper Title IX defendant, because he is also entitled to
qualified immunity since prior cases have only recognized duty to protect students from
abuse or harassment by teacher rather than, as here, from student-to-student harassment.
Mennone v Gordon (1995, DC Conn) 889 F Supp 53.
Plaintiff states viable retaliation claim under Title IX of Education Amendments Act (20
USCS 1681 et seq.), where she alleges that she filed sexual harassment complaint
against professor, that defendant university hindered her efforts to pursue her complaint,
and that filing of complaint prompted defendant to impede her efforts. Topol v Trustees
of the Univ. of Pa. (1995, ED Pa) 160 FRD 474.
Diary of plaintiff alleging sexual harassment by university professor and retaliation by
university trustees, in violation of Title IX of Education Amendments Act (20 USCS
1681 et seq.), is clearly relevant to litigation, where she maintained diary during this time
and diary pertains to her relationship with professor, and plaintiff will therefore be
required to produce diary pursuant to defendant's discovery motion. Topol v Trustees of
the Univ. of Pa. (1995, ED Pa) 160 FRD 476.
Title IX does not authorize cause of action against individuals. Nelson v Temple Univ.
(1996, ED Pa) 70 BNA FEP Cas 161.

University officials must immediately effectively accommodate its female student
population pursuant to Title IX (20 USCS 1681 et seq.), where university failed to
demonstrate history and practice of expanding women's athletics on campus, and
evidence makes clear it is not adapting to changing social and athletic landscape since
student body is 49 percent female but athletic participants are only 29 percent female,
because university's athletic program has demonstrated arrogant ignorance, confusion
regarding practical requirements of law, and remarkably outdated view of women and
athletics stopping just shy of intentional gender discrimination. Pederson v Louisiana
State Univ. (1996, MD La) 912 F Supp 892.
School district is liable to abused female high school student under Title IX (20 USCS
1681 et seq.), where after-school karate instructor carried on sexual relationship with
15-year-old student over period of months, because jury's verdict awarding damages and
imputing liability to district for its negligence in not stopping wrongful conduct is
supported. Rosa H. v San Elizario Indep. Sch. Dist. (1995, WD Tex) 887 F Supp 140.
Applicable statute of limitations under Title IX of Education Amendments Act, 20 USCS
1681 et seq., is one-year period provided under state law for personal injury actions,
not 180- day period provided in Title VI, 42 USCS 2000d et seq., for administrative
actions. Lillard v Shelby County Bd. of Educ. (1996, CA6 Tenn) 76 F3d 716.
Claim of former members of private university's wrestling team against university,
alleging that discontinuance of wrestling program violated Title IX, is dismissed, where
discontinuance reduced athletic scholarships for male students, because number of male
athletes in university's athletic program is not only substantially proportional to number
of males in general student body, it is disproportionately high. Gonyo v Drake Univ.
(1995, SD Iowa) 879 F Supp 1000.
School counselor was entitled to qualified immunity for failing to tell sexually-harassed
student's parents that school had Title IX policy and Title IX officer responsible for
enforcement, where counselor's duty to act was not clearly established at time of his
inaction; opinion letter from Office of Civil Rights notifying school district that it had
duty to prevent peer harassment did not clearly establish duty. Doe by & Through Doe v
Petaluma City Sch. Dist. (1995, CA9 Cal) 54 F3d 1447, 95 CDOS 3551.
Educational institution is proper defendant under Title IX; consequently, owners of
educational institution that is not separately incorporated entity would be proper
defendants in action under Title IX. Duron v Hancock (1993, DC Kan) 64 BNA FEP Cas
81.
In action by former school principal against school officials alleging they discriminated
against her because of her race and gender, in violation of 20 USCS 1681, district
court's order granting summary judgment to some defendants based on qualified
immunity was not final order, since claims remained against another defendant, and it
was not collateral order subject to immediate review. Winfrey v School Bd. (1995, CA11
Fla) 59 F3d 155, 68 BNA FEP Cas 673, 66 CCH EPD 43650, 32 FR Serv 3d 193, 9
FLW Fed C 256.
Title IX of Education Amendments Act, 20 USCS 1681-1688, encompasses claim for
damages due to sexually hostile educational environment created by fellow student when
supervising authorities knowingly fail to act to eliminate harassment. Davis v Monroe

County Bd. of Educ. (1996, CA11 Ga) 74 F3d 1186, 9 FLW Fed C 843.
Title IX actions are not available against employees of institutions, but only against
institutions themselves. Dickinson v McCarty (1994, SD Fla) 65 BNA FEP Cas 1508.
Footnotes
Footnote 41. 104.
Footnote 42. 7 CFR 15a.2(e) (Department of Agriculture); 34 CFR 106.2(h)
(Department of Education, Office of Civil Rights).
Annotation: Application to tenured positions in educational institutions of provisions
of Civil Rights Act of 1964, as amended (42 USCS 2000e et seq.) prohibiting
discrimination on basis of sex, 55 ALR Fed 842.
Racial discrimination in the hiring, retention, and assignment of teachersfederal cases,
3 ALR Fed 325.
Footnote 44. Lipsett v Rive-Mora (1987, DC Puerto Rico) 669 F Supp 1188, revd on
other grounds (CA1) 864 F2d 881, 54 BNA FEP cas 230, 48 CCH EPD 38393.
Footnote 45. 20 USCS 1681(a)(3), 1687.
Footnote 46. S Rept No. 100-64, to accompany S 557, 6/5/87, 20-21.
Footnote 50. 20 CFR 1681(a)(7).
Footnote 51. 20 CFR 1681(a)(8).
Footnote 52. 20 CFR 1681(a)(9).
106 What is federal financial assistance

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Under Title VI, 53

Title IX, 54 and 504 of the Rehabilitation Act, 55
the term "federal financial assistance" includes:
grants or loans of federal funds;
grants or donations of federal property and interests in property;
the detailing of federal personnel;
sales, leases, or permission to use federal property in other than a casual or transient
basis, or an interest in federal property without consideration, at a nominal consideration,
or at a consideration which is reduced to assist the recipient, or in recognition of the
public interest to be served by sale or lease to the recipient;
contracts intended to provide assistance.
Federal financial assistance also may include:
furnishing of services without consideration or at a nominal or reduced consideration;
56
waiver of charges normally made for furnishing government services; and
technical assistance. 57
Also, under Title IX, a grant or loan may include funds for:
acquiring, constructing, renovating, restoring, or repairing a building or a part of a
building; 58
scholarships, loans, grants, wages, or other funds given to an entity on behalf of students
admitted to the entity, or given directly to the students for payment to the entity. 59
However, federal financial assistance means more than merely deriving an economic
benefit from assistance given to another entity. Thus, commercial airlines are not
covered under 504, although they derive economic benefits from the federal aid given
to airport operators. Imposition of 504 coverage is essentially a contractual cost of
accepting the federal funds, and only the airport operators were in a position to have
accepted or rejected the statute's obligations by determining whether to receive funds.
Benefits received by commercial airlines through the air traffic control system also do
not justify 504 coverage, since the air traffic control system is not federal financial
assistance, but a federally conducted program with many beneficiaries, including the
airlines, but no recipients. 60
"Federal financial assistance" also excludes mere exemption from taxation or return on
an investment, 61 and the government's purchase of nonpersonal services from a
contractor which it has intention of subsidizing. 62
106 ----What is federal financial assistance [SUPPLEMENT]
Regulations:
33 CFR 24, dealing with Department of Transportation, Coast Guard, was removed in
December 1992.
Case authorities:
Former employee's discrimination action under 29 USCS 794e against employer,
supervisor, human resources director, and coemployee is dismissed, where complaint
alleged that defendant failed to reasonably accommodate plaintiff in violation of
Rehabilitation Act, and did not allege that employer receives federal financial assistance,
because complaint fails to state claim against any defendant. Armstead v Becton
Dickinson Primary Care Diagnostics (1996, DC Md) 919 F Supp 188, 15 ADD 227.
Employer is entitled to judgment as matter of law on employee's 29 USCS 794 claim,
where employer has General Services Administration (GSA) contract with U.S. under
which it disseminates catalog allowing governmental agencies to acquire industrial
cleaning equipment and supplies at guaranteed lowest prices, because employer's
operations are not "programs or activities that receive federal financial assistance" since
intention of government is to compensate employer for its goods and services and not to
subsidize employer. Muller v Hotsy Corp. (1996, ND Iowa) 917 F Supp 1389, 15 ADD
1178.
Payments that employer received as compensation for its services under government
contract did not constitute federal financial assistance that would bring it within purview
of Rehabilitation Act (29 USCS 794). Muller v Hotsy Corp. (1996, ND Iowa) 917 F
Supp 1389, 15 ADD 1178.
Footnotes
Footnote 53. 7 CFR 15.2(g) (Department of Agriculture); 10 CFR 4.3(d) (Nuclear
Regulatory Commission); 13 CFR 112.2(b), 113.2(a) (Small Business
Administration); 14 CFR 1250.102(d) (National Aeronautics and Space
Administration); 15 CFR 8.3(f) (Department of Commerce); 18 CFR 705.2(c)
(Water Resources Council); 22 CFR 141.12(e) (Department of State); 24 CFR 1.2(e)
(Department of Housing and Urban Development); 28 CFR 42.102(c), 42.613(e)
(Department of Justice); 29 CFR 31.2(e) (Department of Labor); 29 CFR 1691.13(e)
(EEOC); 32 CFR 300.2(d) (Department of Defense); 33 CFR 24.55 (d) (Department
of Transportation, Coast Guard); 34 CFR 104.3(h) (Department of Education); 38 CFR
18.13(e) (Veterans Administration); 43 CFR 17.12(e) (Department of the Interior);
44 CFR 7.2(c) (Federal Emergency Management Agency) 45 CFR 80.13(f)
(Department of Health and Human Services); 45 CFR 611.13(e) (National Science
Foundation); 45 CFR 1010.1-3(g) (Department of Health and Human Services, Office
of Community Services); 45 CFR 1110.13(f) (National Foundation on the Arts and the
Humanities); 45 CFR 1203.3(c) (ACTION); 49 CFR 21.23(c) (Department of
Transportation).
Footnote 54. 34 CFR 106.2(g).
Footnote 55. 5 CFR 900.703(b) (Office of Personnel Management); 7 CFR 15b.3(g)
(Department of Agriculture); 10 CFR 4.3(d) (Nuclear Regulatory Commission); 14
CFR 1251.102(f) (National Aeronautics and Space Administration); 18 CFR

1307.1(c) (Tennessee Valley Authority); 22 CFR 142.3(h) (Department of State); 22
CFR 217.3(g) (Agency for Internat. Development IDCA); 28 CFR 42.540(f)
(Department of Justice); 29 CFR 32.3 (Department of Labor); 32 CFR 56.3(b)
(Department of Defense); 34 CFR 104.3(h) (Department of Education); 38 CFR
18.403(h) (Veterans Administration); 43 CFR 17.202(h) (Office of the Secretary of the
Interior); 45 CFR 84.3(h) (Department of Health and Human Services); 45 CFR
605.3(h) (National Science Foundation); 45 CFR 1151.3(f) (Nat'l Foundation on the
Arts and Humanities); 45 CFR 1232.3(f) (ACTION); 49 CFR 27.5 (Dept of
Transportation).
Footnote 56. 7 CFR 15.2(g) (Department of Agriculture).
Footnote 57. 15 CFR 8.3(f) (Department of Commerce).
Footnote 58. 34 CFR 106.2(g)(1)(i) (Department of Health and Human Services).
Footnote 59. 7 CFR 15a.2(d) (Department of Agriculture); 34 CFR 106.2(g)(1)(ii)
(Department of Education, Office of Civil Rights); 45 CFR 86.2(g)(1)(ii) (Department
of Health and Human Services).
Footnote 60. U.S. Dept. of Transp. v Paralyzed Veterans of America (1986) 477 US 597,
91 L Ed 2d 494, 106 S Ct 2705, 40 CCH EPD 36194.
Footnote 61. Merrifield v Beaven/Inter- American Cos. (1991, ND Ill) 1991 US Dist
LEXIS 12128.
Footnote 62. DeVargas v Mason & Hanger-Silas Mason Co. (1990, CA10) 911 F2d
1377, 53 BNA FEP Cas 1241, 54 CCH EPD 40155, cert den (US) 112 L Ed 2d 860,
111 S Ct 799, 56 BNA FEP Cas 96, 56 BNA FEP Cas 776, 55 CCH EPD 40495.
107 Indirect funding as satisfying coverage requirements

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Indirect as well as direct federal financial assistance 63 subjects a recipient 64 to
coverage under Title IX 65 and under 504 of the Rehabilitation Act. Thus, a social
services organization was covered by 504 where it received state funds for which the
state was reimbursed by the federal government. 66
Moreover, an employer may be a covered recipient under 504 where it receives federal
funds from another private recipient. Thus, an employer was covered where it provided
services to a hospital that received federal assistance, and had a contractual arrangement
with the hospital to receive a percentage of the revenues generated by Medicare and
Medicaid patients. 67
107 ----Indirect funding as satisfying coverage requirements [SUPPLEMENT]

Case authorities:
County which received federal funds for bridge repair through state department of
transportation after county requested funds could be sued under Rehabilitation Act (29
USCS 794) by employee who alleged discrimination, even though county was not
direct recipient of federal funds. Bentley v Cleveland County Bd. of County Comm'rs
(1994, CA10 Okla) 41 F3d 600, 7 ADD 347.
County which received federal funds indirectly through state department of transportation
under Federal Bridge Replacement and Rehabilitation Program was covered program or
activity as contemplated by Rehabilitation Act (29 USCS 794), and therefore district
court properly entertained subject matter jurisdiction over action brought by former
county employee alleging that he was fired in violation of Act. Bentley v Cleveland
County Bd. of County Comm'rs (1994, CA10 Okla) 41 F3d 600, 7 ADD 347.
In action by administrator of state agency alleging that he was terminated because of his
disability, fact that purpose of federal financial assistance to agency was to promote
rights of its clients, rather than to provide employment for persons such as administrator,
did not bar administrator from obtaining relief under 504 of Rehabilitation Act (29
USCS 794). Ohio Council of the Blind v Voinovich (1994, SD Ohio) 8 ADD 1381.
Footnotes
Footnote 63. 106.
Footnote 64. 104.
Footnote 65. Grove City College v Bell (1984, US) 465 US 555, 79 L Ed 2d 516, 104 S
Ct 1121, 33 CCH EPD 34158.
Footnote 66. Graves v Methodist Youth Services, Inc. (1985, ND Ill) 624 F Supp 429, 39
Footnote 67. Frazier v Board of Trustees (1985, CA5) 765 F2d 1278, 38 BNA FEP Cas
783, 37 CCH EPD 35387, substituted op, in part on other grounds, reh den (CA5) 777
F2d 329, 39 BNA FEP Cas 872, 38 CCH EPD 35793, cert den (US) 90 L Ed 2d 697,
108 When coverage extends beyond specific program receiving assistance

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Once a program or activity 68 receives federal assistance, the entire agency or
institution is covered under Title IX, 69 Title VI, 70 and 504 of the Rehabilitation
Act. 71 Thus, where any part of a college, university, or public system of higher
education, 72 elementary or secondary school system 73 has received such
assistance, the entire institution or system is covered.
When a state or local government receives aid, only the department or agency receiving
the aid is covered, 74 unless the agency distributes the aid to another government
agency, then both entities are covered. 75
When federal aid is extended to a private corporation as a whole, or when the corporation
is primarily involved in providing a public service, like education, health care, or
housing, the entire corporation is covered, 76 unless the aid is extended to a
geographically separate facility of the corporation, in which case only that facility is
covered. 77
Where an institution is created by a combination of two or more of any of the above
entities, the entire institution is covered if any federal aid is received. 78
Footnotes
Footnote 68. 104.
Footnote 70. 42 USCS 2000d-4a.
Footnote 72. 20 USCS 1687(a)(2)(A); 42 USCS 2000d- 4a(2)(A); 29 USCS
794(b)(2)(A).
Footnote 73. 20 USCS 1687(a)(2)(B); 42 USCS 2000d-4a(2)(B); 29 USCS
794(b)(2)(B).
Footnote 74. 20 USCS 1687(a)(1)(A); 42 USCS 2000d-4a(1)(A); 29 USCS
794(b)(1)(A).
794(b)(1)(B).
Footnote 76. 20 USCS 1687(a)(3)(A); 42 USCS 2000d- 4a(3)(A); 29 USCS
794(b)(3)(A).
794(b)(3)(B).
Footnote 78. 20 USCS 1687(a)(4); 42 USCS 2000d-4a(4); 29 USCS 794(b)(4).
109 Exclusions from coverage

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Title VI does not apply to a program or activity under which federal financial assistance
is extended by way of a contract of insurance or guaranty. 79
Title VI also does not cover the employment practices of an employer, employment
agency, or labor organization, unless a primary objective of the federal financial
assistance is to provide employment. 80
"Employment practices" may include recruitment and advertising, hiring, layoff,
termination, upgrading, demotion, transfer, rates of pay or other forms of compensation,
and use of facilities. 81
The Department of Education expressly includes any
term, condition, or privilege of employment as part of its definition of "employment
practices." 82 The "primary objective" requirement is satisfied whenever a recipient has
received and spent federal funds to pay the salaries of employees and to finance
employee recruitment programs. 83
However, according to agency regulations 84
and one court, 85 Title VI
may apply to the employment practices of a recipient even though the assistance does not
have the primary object of providing employment, if employment discrimination
excludes persons from participation in the program, denies them benefits, or subjects
them to discrimination.
109 ----Exclusions from coverage [SUPPLEMENT]
Regulations:
14 CFR Part 379, was removed in 1995. These CAB regulations implementing Title VI
of the Civil Rights Act of 1964 were virtually identical to those implemented by the
Department of Transportation under 49 CFR Part 21 after transfer of authority, and were
therefore redundant.
Footnotes
Footnote 81. 10 CFR 4.13(a) (Nuclear Regulatory Commission); 10 CFR 1040.14(a)
(Department of Energy); 13 CFR 112.7(a) (Small Business Administration); 14 CFR
379.3(c) (Department of Transportation, Aviation Proceedings); 15 CFR 8.4(c)(1)
(Department of Commerce); 18 CFR 705.4(c)(1) (Water Resources Council); 24 CFR
1.4(c)(1) (Department of Housing and Urban Development); 29 CFR 31.3(c)(1)
(Department of Labor); 34 CFR 100.3(c)(1) (Department of Education); 38 CFR

18.3(d)(1) (Veterans Administration); 41 CFR 101.6.204-2(d)(1) (Federal Property
Management Regulations System); 49 CFR 21.5(c)(1) (Department of Transportation).
Footnote 83. Guardians Asso. of New York City Police Dept., Inc. v Civil Service Com.
(1979, SD NY) 466 F Supp 1273, 19 BNA FEP Cas 121, 19 CCH EPD 9034, affd in
part and vacated in part on other grounds (CA2) 633 F2d 232, 23 BNA FEP Cas 677, 23
CCH EPD 31153, affd (US) 77 L Ed 2d 866, 103 S Ct 3221, 32 BNA FEP Cas 250, 32
CCH EPD 33695, cert den (US) 77 L Ed 2d 1410, 103 S Ct 3568, 51 USLW 3938, 32
Footnote 84. 7 CFR 15.3(c) (Department of Agriculture); 10 CFR 4.13(b) (Nuclear
Regulatory Commission); 10 CFR 1040.14(a)(2) (Department of Energy); 13 CFR
112.4 (Small Business Administration); 14 CFR 1250.103-3(d) (National Aeronautics
and Space Administration); 15 CFR 8.4(c)(2) (Department of Commerce); 18 CFR
705.4(c)(2) (Water Resources Council); 22 CFR 141.3(d)(2) (Department of State); 24
CFR 1.4(c)(2) (Department of Housing and Urban Development); 28 CFR
42.104(c)(2) (Department of Justice); 29 CFR 31.3(c)(2) (Department of Labor); 32
CFR 300.4(b)(5) (Department of Defense); 38 CFR 18.3(d)(2) (Veterans
Administration); 41 CFR 101-6.204-2(d)(2) (Federal Property Management
Regulations System); 43 CFR 17.3(c)(3) (Department of the Interior); 45 CFR
80.3(c)(3) (Department of Health and Human Services); 45 CFR 611.3(c)(4) (National
Science Foundation); 45 CFR 1010.10- 3(b) (Department of Health and Human
Services, Office of Community Services); 45 CFR 1110.3(c)(3) (National Foundation
on the Arts and Humanities); 45 CFR 1203.4(c)(3) (ACTION); 49 CFR 21.5(c)(3)
(Department of Transportation).
Footnote 85. Caulfield v Board of Education (1979, ED NY) 486 F Supp 862, 24 BNA
24 CCH EPD 31270, cert den 450 US 1030, 68 L Ed 2d 225, 101 S Ct 1739, 28 BNA
C. Persons Protected Under Federal Laws [110-122]
Research References
2 USCS 601, 1202, 1219, 1219,; 5 USCS 3307; 29 USCS 623, 630; 42 USCS
1211, 2000e, 2000e-2
29 CFR Part 1630
Discrimination
1. Job Discrimination Laws [110-118]
110 Generally
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Except for certain exclusions from statutory protection, 86 federal job discrimination
laws protect most persons having or seeking an employment relationship with an
employer, 87 including applicants, employees, union members, trainees, veterans, and
other persons.
Observation: The persons protected by a job discrimination law may be affected by

the coverage of "employers" under that law. 88
State aspects: State job discrimination laws protect a wide range of persons,
including applicants, employees, trainees, union members, and other individuals. Who
is protected depends either on a statutory definition, or in the absence of a definition,
the intent of the statutory prohibitions describing the persons the law seeks to protect.
89
Caution: Title VII technically allows an employer, labor organization, joint labormanagement committee, or employment agency to take any action against a member of
the Communist Party or any other "Communist-action" or "Communist- front"
organization required to register under the Subversive Activities Control Act of 1950.
90 However, Title VII's registration provisions for such organizations were repealed
in 1968, 91 and the federal government's practice of listing these organizations was
discontinued in 1974. 92 Furthermore, the Title VII exception seems particularly
vulnerable to attack under the First Amendment as a violation of the party member's
rights of free speech and association. Accordingly, an employer should not rely on the
Communist Party membership exemption as an excuse for otherwise unlawful
employment discrimination.
Case authorities:
Female member of volunteer fire company who was alleged to have been sexually
assaulted by other member stated equal protection violation by claiming that fire
company refused to end her suspension and reinstate her while male member was
reinstated, there being issues of fact whether volunteer received sufficient compensation
to be employee covered by Title VII of Civil Rights Act. Haavistola v Community Fire
Co. (1993, CA4 Md) 6 F3d 211, 63 BNA FEP Cas 207, 62 CCH EPD 42570.
School board policy requiring case-by-case examination into circumstances of each felon
applicant's conviction before offering employment had rational relationship to legitimate
end, for purposes of 42 USCS 1983 action by felon who alleged he was denied
employment on basis of his status as convicted felon. Hilliard v Ferguson (1994, CA5
La) 30 F3d 649.

National Guard technician, whose job is hybrid military-civilian position, can maintain
Title VII employment discrimination action, except when challenge is to personnel
actions integrally related to military's unique structure. Mier v Owens (1995, CA9 Ariz)
57 F3d 747, 95 CDOS 4299, 95 Daily Journal DAR 7394, 68 BNA FEP Cas 119.
Any party that can back up its allegations of Article III standing with actual proof, has
cause of action under Title VII. Fair Employment Council v BMC Mktg. Corp. (1994,
App DC) 28 F3d 1268, 65 BNA FEP Cas 512.
Footnotes
Footnote 86. 115-118.
Footnote 87. 111-114.
Footnote 89. For a discussion of these laws, see Employment Coordinator EP-17,251
et seq.
Footnote 90. 42 USCS 2000e-2(f).
Footnote 91. P.L. 90-237, 5, 81 Stat. 766.
Footnote 92. Ex Or 11785, 2; 5 USCS 7311 note.
111 Employees and applicants for employment

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Both Title VII 93
and the ADEA, 94
by virtue of their ban on discriminating in
discharge and other terms, conditions, or privileges of employment, protect "employees."
By virtue of their ban on hiring discrimination, those laws also protect applicants for
employment.
In addition, Title VII protects employees and applicants for employment from being
limited, segregated, or classified in a discriminatory manner, 95 and the ADEA extends
that protection to employees. 96
An "employee" under Title VII, 97 the ADA 98 and the ADEA 99 is an individual
employed by an employer, with certain exceptions under Title VII and the ADEA. 1
Observation: An individual must be in an employment relationship with an

employer in order to be protected as an employee or applicant under Title VII or the
ADEA, 2 although the relationship does not have to be with the employer charged
with discrimination. 3
The Government Employee Rights Act of 1991 protects Senate employees, 4
presidential appointees, 5 and certain employees of state and local elected officials. 6
Protected executive branch appointees include individuals not already protected under
Title VII, the ADEA, 501 of the Rehabilitation Act of 1973, or the ADA, but does not
include any individual who is:
appointed with the advice and consent of the senate's
appointed to an advisory committee as defined in the Federal Advisory Committee Act
(5 USCS App); or
a member of the uniformed services. 7
The Civil Rights Act of 1991 makes the rights and protections provided under Title VII
applicable to employees of the House of Representatives, of any employing authority of
the House, 8 and of each instrumentality of Congress. 9
111 ----Employees and applicants for employment [SUPPLEMENT]
Practice Aids: 20 Am Jur Proof of Facts 3d 361, Disability Discrimination Under the
Americans with Disabilities Act.
33 Am Jur Proof of Facts 3d 1, Proof of "Disability" Under the Americans With
Disabilities Act.
Who, other than specifically excluded persons, is "employee" under 4(a)(1) of Age
Discrimination in Employment Act of 1967 (29 USCS 623(a)(1)). 125 ALR Fed 273.
Employee's inability to work particular hours due to disability as grounds for termination
or refusal of employment, notwithstanding federal statute or regulation requiring
employer to make reasonable accommodation of disability. 116 ALR Fed 485.
Defense of Claims Brought Under the Americans With Disabilities Act. 49 Am Jur
Trials 171.
Americans With Diabilities Act of 1990: Significant Overlap With Section 504 For
Colleges and Universities, Hill, Jr., 18 J Coll & Univ L No. 3 P 389 (Winter 1992).
Employing The Alcoholic Under The Americans With Disabilities Act of 1990, Voss, 33
Will & Mary LR No.3 P 295 (Spring 1992).
Postol and Kadue, An Employer's Guide to the Americans With Disabilities Act: From
Job Qualifications to Reasonable Accommodations. 24 John Marsh LR 693, Summer,
1991.
Statutes:
Case authorities:
Real estate agent was independent contractor, rather than employee, even though she was
required to be present in real estate office four hours per week to answer telephones and
take prospect calls, she attended weekly sales meetings and company-wide quarterly
meetings, and she was provided office space, since she was paid only on commission
basis, and she scheduled her own hours, marketed her own listings and developed her
own business leads. Stetka v Hunt Real Estate Corp. (1994, WD NY) 859 F Supp 661, 65
BNA FEP Cas 1311.
Graduate student assistant was employee for purposes of Title VII, because three
contracts (in which student agreed to render service to university) had provided for
student's employment, and student earned monthly graduate assistantship stipend, from
which university withheld state retirement benefit contributions. Ivan v Kent State Univ.
(1994, ND Ohio) 65 BNA FEP Cas 1671.
To distinguish between employees and independent contractors in discrimination cases
brought under Title VII, appropriate test to be used is hybrid of common law test and
economic realities test. Wilde v County of Kandiyohi (1994, CA8 Minn) 15 F3d 103, 63
Footnotes
Footnote 93. 42 USCS 2000e-2(a)(1).
Annotation: Who is "employee," as defined in 701(f) of the Civil Rights Act of in
1964 ( in 42 USCS 2000e(f)), in 72 ALR Fed in 522.
Annotation: Who is "employee" within meaning of Age Discrimination in
Employment Act (29 USCS 621-634), 69 ALR Fed 700.
Who is exempt from definition of "employee," under 11(f) of Age Discrimination in
Employment Act (ADEA)(29 USCS 630(f)), so as to be excepted from coverage of
the Act, 110 ALR Fed 490.

Footnote 1. 116.
Observation: Under the Rehabilitation Act, an important coverage consideration is

whether an individual can qualify as an "individual with handicaps." This concept is
Footnote 2. 112.
Annotation: What occupational groups may be deemed entitled to protection under 42
USCS 1985 against invidious class-based discrimination, 53 ALR Fed 741.
Footnote 3. 114.
112 Persons having an employment relationship with an employer

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A person must have or be seeking an employment relationship with an employer in order
to be protected as an employee or applicant for employment under Title VII or the
ADEA, since both Title VII 10 and the ADEA 11 extend their statutory protections to
only employment situations. For example, a prisoner had an employment relationship
with prison librarians and, thus, was protected by Title VII with regard to denial of work
assignments in the prison library, because he presumably would have been employed by
the library, but for the discriminatory attitude of the head librarian. 12 However, the
relationship between a prison inmate and the Bureau of Prisons was primarily one of
incarceration and was not one of employment. 13 Furthermore, an applicant for a license
to run a city-owned facility did not have an employment relationship with the city for
Title VII coverage purposes, because the city would not have paid his wages or had an
economic interest in the facility. 14
Observation: The connection with employment that is required for protection can be
indirect, such as when an employer interferes with an individual's employment
opportunities with another employer. 15
In evaluating whether an employee or applicant is protected by Title VII, the intent of the
federal law controls the determination and state law is relevant only insofar as it
describes an employee's position, including his duties and the way he is hired, supervised,
and fired. 16
There is a question under Title VII and the ADEA as to whether an employment
relationship exists between persons classified or acting as "partners" and their firms.
Several appeals courts have held that a firm's general partners are not protected either
under Title VII or the ADEA, since they are not a firm's employees, 17 but are its
owners and managers. 18
The Eleventh Circuit has also held that shareholders and partners in a professional
corporation are not "employees" protected by the ADEA. 19 However, the fact that an
employer designates a person as a "partner," or even that he behaves like a partner, may
not necessarily remove him from the protections of job discrimination statutes. For
example, the Second Circuit holds that when an employer chooses to organize as a
corporation, all persons who work for it are its employees under the ADEA, even if they
act like partners. 20 Furthermore, an evaluation of an individual's status as an
"employee" or partner under the ADEA should at least consider the extent to which the
individual (1) controls and operates the business, (2) is compensated as a percentage of
business profits, and (3) has employment security. 21
Because the employment discrimination protections in Title VII and the ADEA protect
only employment relationships, most challenges to persons seeking the protection of
these statutes contend that the individuals are not employees, but instead are independent
contractors. 22
The requirement of an employment relationship for purposes of calculating the number of
employees required for employer coverage under Title VII is discussed elsewhere. 23
112 ----Persons having an employment relationship with an employer
[SUPPLEMENT]
Practice Aids: Who, other than specifically excluded persons, is "employee" under
4(a)(1) of Age Discrimination in Employment Act of 1967 (29 USCS 623(a)(1)).
125 ALR Fed 273.
Trials 171.
Case authorities:
Whether worker is employee under Title VII is question of federal, not state, law.
Appropriate test for determining employee status under Title VII is hybrid test (which
looks at economic realities of work situation, but focuses on extent of employer's right to
control means and manner of worker's performance). Wilde v County of Kandiyohi
(1993, DC Minn) 811 F Supp 446, 61 BNA FEP Cas 54.
Footnotes
Footnote 10. Gomez v Alexian Bros. Hospital (1983, CA9) 698 F2d 1019, 30 BNA FEP
Cas 1705, 31 CCH EPD 33328; Wheeler v Hurdman (1987, CA10) 825 F2d 257, 44
BNA FEP Cas 707, 28 BNA WH Cas 280, 43 CCH EPD 37249.
Footnote 11. Hyland v New Haven Radiology Associates, P.C. (1986, CA2) 794 F2d
793, 41 BNA FEP Cas 183; Wheeler v Hurdman (1987, CA10) 825 F2d 257, 44 BNA
FEP Cas 707, 28 BNA WH Cas 280, 43 CCH EPD 37249.
Footnote 12. Baker v McNeil Island Corrections Center (1988, CA9) 859 F2d 124, 48
BNA FEP Cas 143.
Footnote 13. Williams v Meese (1991, CA10) 926 F2d 994, 55 BNA FEP Cas 390, 55
CCH EPD 40577.
Footnote 14. Darks v Cincinnati (1984, CA6) 745 F2d 1040, 36 BNA FEP Cas 27, 35
CCH EPD 34708.
Footnote 15. 114.
Footnote 16. Calderon v Martin County (1981, CA5) 639 F2d 271, 25 BNA FEP Cas
553, 25 CCH EPD 31625.
Footnote 17. Wheeler v Hurdman (1987, CA10) 825 F2d 257, 44 BNA FEP Cas 707, 28
BNA WH Cas 280, 43 CCH EPD 37249.
Footnote 18. Burke v Friedman (1977, CA7) 556 F2d 867, 15 BNA FEP Cas 34, 14 CCH
EPD 7629.
Footnote 19. Fountain v Metcalf, Zima & Co., P.A. (1991, CA11) 925 F2d 1398, 55
Footnote 20. Hyland v New Haven Radiology Associates, P.C. (1986, CA2) 794 F2d
793, 41 BNA FEP Cas 183.
Footnote 21. Caruso v Peat, Marwick, Mitchell & Co. (1987, SD NY) 664 F Supp 144,
Footnote 22. 113.
113 Independent contractors

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While persons denied employment opportunities with an employer because of the
discriminatory conduct of third parties may be able to sue those parties 24 under Title
VII or the ADEA for interfering with an employment relationship, 25 these statutes do
not protect persons if they are independent contractors who have no relationship to a
covered employer.
The test for evaluating whether a person is an "employee" or an independent contractor
under Title VII and the ADEA is whether the "economic realities" of his situation are
such that an employment relationship exists. Although no single factor controls this
evaluation, the degree of an employer's control and direction over an individual's work is
the most important factor. Other factors evaluated under Title VII 26 and the ADEA 27
include:
(1) the kind of occupation (that is, whether the work is customarily done under a
supervisor's direction or by a specialist working alone);
(2) the skill required in the occupation;
(3) how long the individual has worked for the employer;
(4) the payment method (that is, by job or time);
(5) the procedure for terminating the work relationship;
(6) whether annual leave is accrued;
(7) whether retirement benefits are accrued;
(8) whether the "employer" pays social security taxes on the worker's earnings;
(9) whether the employee's services are an integral part of the employer's business;
(10) the parties' intention.
The "economic realities" test for evaluating whether a person is an employee or an
independent contractor has also included considerations of whether:
the employer furnishes the equipment used, or whether the equipment is jointly
furnished; 28
the person could obtain comparable employment, and is subject to a disciplinary
mechanism prior to termination; 29
the person has a contract with the employer; 30

the person has an opportunity for profit or loss depending on his managerial skills. 31
Using the criteria outlined above, courts have determined that no employment
relationship existed under Title VII or the ADEA, based on the "economic realities" of
the situation, between:
a physician and a hospital that denied her an appointment to its volunteer staff, because
the volunteer staff, unlike the full-time attending staff, were provided no benefits, support
facilities, or services, were free to control where and when they worked, were paid
directly by their patients, and based their practices to some extent outside of the hospital,
as self- employed physicians and professional corporations; 32
an insurance agent and the company whose policies she sold, because (1) she worked
solely on a commission basis, (2) she was not paid for unworked days, (3) the
relationship was not exclusive and was terminable at will, (4) the company did not
control her schedule or work hours, (5) taxes were not withheld from earnings and were
reported on 1099 forms instead of W- 2 forms, (6) her work performance was
unsupervised, and (7) she paid her own travel and business expenses; 33
the owner/operator of a trucking company and the company that hired her services,
where the company did not tell her how to operate her trucks, it did not deduct social
security or withhold taxes from her, it paid the company rather than her for her time and
services and at a higher scale and in a different fashion than it paid its own workers, and
it was not her only customer; 34
a radiologist and the hospital that used his services, where he worked unsupervised, had
specialized training, jointly furnished the equipment used with the hospital, and most of
his compensation was payment for bills submitted for his services rather than salary; 35
district managers and a manufacturer who engaged them to sell its products, where the
managers operated strictly on commission, received no company benefits, and had
complete control over their daily activities; 36
a salesman and a business, where the salesman scheduled his own hours, was paid
solely by commission, had no taxes or social security withheld, and the paperwork the
business required from him was a minimal infringement on his discretion in managing his
own affairs. 37
However, an analysis of the "economic realities" demonstrated that there was an
employment relationship under Title VII and the ADEA between:
a doctor and a hospital that had revoked her staff privileges because she based her entire
livelihood on the hospital and underwent extensive progressive discipline prior to having
her privileges revoked; 38
a real estate agent and a developer, even though their relationship was governed by a
formal independent contractor agreement, where the developer treated her as its
employee except when it suited its purposes to treat her as an independent contractor. 39
113 ----Independent contractors [SUPPLEMENT]

125 ALR Fed 273.
Trials 171.
Case authorities:
In order to determine whether individual was employee or independent contractor for
purposes of Title VII (protections of Title VII do not extend to independent contractors),
common-law agency principles are applicable. McFadden-Peel v Staten Island Cable
(1994, ED NY) 873 F Supp 757, 67 BNA FEP Cas 147.
Test utilized by federal courts in determining whether individual is employee or
independent contractor for purposes of employment discrimination under Title VII of
Civil Rights Act has been adopted as test for determining whether individual is employee
under Wisconsin Fair Employment Act which involves analysis of economic realities of
work relationship and consideration of variety of factors including kind of occupation,
with reference to whether work usually is done under direction of supervisor or is done
by specialist without supervision, skill required in particular occupation, whether
employer or individual in question furnishes equipment used and place of work, length of
time during which individual has worked, method of payment, whether by time or by job,
manner in which work relationship is terminated, whether annual leave is afforded,
whether work is integral part of business of employer, whether worker accumulates
retirement benefits, whether employer pays social security taxes, and intention of parties.
Moore v Labor & Indus. Review Comm'n (1993, App) 175 Wis 2d 561, 499 NW2d 288.
Footnotes
Footnote 24. 114.
Footnote 25. 112.
Footnote 26. Spirides v Reinhardt (1979) 198 App DC 93, 613 F2d 826, 20 BNA FEP
Cas 141, 20 CCH EPD 30073.
Footnote 27. EEOC v Zippo Mfg. Co. (1983, CA3) 713 F2d 32, 32 BNA FEP Cas 682,
32 CCH EPD 33755.
Footnote 28. Mitchell v Frank R. Howard Memorial Hospital (1988, CA9) 853 F2d 762,
47 BNA FEP Cas 954, 47 CCH EPD 38237, cert den (US) 103 L Ed 2d 186, 109 S Ct
1123, 50 CCH EPD 38961.
Footnote 29. Ross v William Beaumont Hospital (1988, ED Mich) 678 F Supp 655, 48
CCH EPD 38417.
Footnote 30. Miller v Advanced Studies, Inc. (1987, ND Ill) 635 F Supp 1196, 41 BNA
FEP Cas 796; Martin v United Way of Erie (1987, CA3) 829 F2d 445, 44 BNA FEP Cas
1593, 44 CCH EPD 37472.
Footnote 31. EEOC v Century Broadcasting Corp. (1990, ND Ill) 53 BNA FEP Cas 250.
Footnote 32. Beverly v Douglas (1984, SD NY) 591 F Supp 1321, 35 BNA FEP Cas
1860.
Footnote 33. Dixon v Burman (1983, ND Ind) 593 F Supp 6, 32 BNA FEP Cas 1107, 33
CCH EPD 34256, affd without op (CA7) 742 F2d 1459, 37 BNA FEP Cas 1816, 35
CCH EPD 34698.
Footnote 34. Broussard v L.H. Bossier, Inc. (1986, CA5) 789 F2d 1158, 40 BNA FEP
Cas 1362, 40 CCH EPD 36301.
Footnote 35. Chow v Mercy Hospital of Fort Scott, Kansas (D Kan) No. 85-2352,
9/26/86.
Footnote 36. EEOC v Zippo Mfg. Co. (1983, CA3) 713 F2d 32, 32 BNA FEP Cas 682,
32 CCH EPD 33755.
Footnote 37. Kirby v Swimfashions (1990, CA6) 1990 US App LEXIS 8887
(unpublished).
Footnote 38. Ross v William Beaumont Hospital (1988, ED Mich) 6789 F Supp 655, 48
CCH EPD 38417.
Footnote 39. Golden v A.P. New Orleans, Inc. (1988, ED Pa) 681 F Supp 1100, 46 BNA
FEP Cas 38429.
114 Persons denied access to job opportunities by third parties

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Although Title VII protects only persons in an employment relationship with an
employer 40 and not independent contractors, 41 a person can claim the statute's
protection even if he is not employed by the employer charged with the discrimination if
that employer has discriminatorily denied him "access to job opportunities" with another
employer. 42
Frequently, physicians and other health care professionals have claimed the protection of
Title VII, when denied a benefit or opportunity by a hospital or other health care facility,
on the ground that such a denial interferes with their employment opportunities with
patients. Thus, a private duty nurse could sue a hospital that allegedly refused to
recommend him to female patients, although he was not the hospital's employee. It
controlled the premises on which his services were to be rendered, including his access to
the patients who employed him. 43 Similarly, a provider of emergency room services
could claim the protection of Title VII from a hospital that rejected his proposal to permit
his private corporation to run the hospital's emergency room. 44
The "access to job opportunities" standard allowing Title VII's protection to extend to
physicians who are not employed by the entity charged with discrimination has also been
recognized by:
a district court in the Third Circuit; 45
the Seventh Circuit; 46
the Eleventh Circuit. 47
However, courts finding that interference with the traditional physician- patient
relationship can only be deemed an independent contractor situation, 48 thus falling
outside of the scope of Title VII's protection, include:
a district court in the Second Circuit; 49
the Ninth Circuit. 50
While the Fifth Circuit allows a physician to sue a hospital if the revoking of his staff
privileges affects his employment opportunities with patients, it does not allow him to
sue based solely on the claim that the termination affected his treatment arrangements
with private patients. 51
Despite the absence of a direct employment relationship, the "access to job opportunities"
standard has also permitted Title VII's protection to extend to situations involving:
a private duty nurse and a hospital, because by denying her privileges for discriminatory
reasons, it affected her ability to work for private physicians; 52
a lawyer and a court, because the lawyer could have been employed by indigent persons
had she not been rejected for an assistant public defender position; 53
an employee of a cleaning service and a store at which she was assigned, because the
store might have improperly interfered with her employment relationship with the
service; 54
loading helpers and a storage facility, although the helpers were employees of
independent truck drivers, because the facility limited the drivers' choice of helpers to
persons it allowed on its premises, and thereby controlled the helpers' access to
employment. 55
Furthermore, a prison's ability to approve, control, or interfere with an inmate's outside
employment opportunities is subject to regulation by Title VII once a prison recommends
an inmate for work release. 56

114 ----Persons denied access to job opportunities by third parties
[SUPPLEMENT]
125 ALR Fed 273.
Trials 171.
Case authorities:
Statutory language of Title VII is broad and encompasses more than traditional
employer-employee relationship (this interpretation derives from use of term "any
individual" instead of "employee" in 42 USCS 2000e-2(a)(1)); thus, Title VII may
apply even in absence of direct employment relationship between plaintiff and defendant
when defendant interferes in plaintiff's employment opportunities with third party where
defendant controls access to those opportunities. Pelech v Klaff-Joss, LP (1993, ND Ill)
815 F Supp 260, 61 BNA FEP Cas 507.
Footnotes
Footnote 40. 112.
Footnote 41. 113.
Cas 1705, 31 CCH EPD 33328; Sibley Memorial Hospital v Wilson (1973) 160 App
DC 14, 488 F2d 1338, 6 BNA FEP Cas 1029, 6 CCH EPD 8964.
Footnote 43. Sibley Memorial Hospital v Wilson (1973) 160 App DC 14, 488 F2d 1338,
Cas 1705, 31 CCH EPD 33328.
Footnote 45. Mallare v St. Luke's Hospital (1989, ED Pa) 1989 US Dist LEXIS 15339.
Footnote 46. Doe v St. Joseph's Hospital (1986, CA7) 788 F2d 411, 40 BNA FEP Cas
820, 39 CCH EPD 35995.
Footnote 47. Pardazi v Cullman Medical Center (1988, CA11) 838 F2d 1155, 46 BNA
Footnote 48. 113.

Footnote 49. Beverley v Douglas (1984, SD NY) 591 F Supp 1321, 35 BNA FEP Cas
1860.
Footnote 50. Mitchell v Frank R. Howard Memorial Hospital (1988, CA9) 853 F2d 762,
47 BNA FEP Cas 954, 47 CCH EPD 38237, cert den (US) 103 L Ed 2d 186, 109 S Ct
1123, 50 CCH EPD 38961.
Footnote 51. Diggs v Harris Hospital-Methodist, Inc. (1988, CA5) 847 F2d 270, 47 BNA
FEP Cas 138, 46 CCH EPD 35068, cert den (US) 102 L Ed 2d 383, 109 S Ct 394, 48
Footnote 52. Christopher v Stouder Memorial Hosp. (1991, CA6) 936 F2d 870, 56 BNA
Footnote 53. Ellerby v Illinois, Fifteenth Judicial Circuit Court (1988, ND Ill) 46 BNA
FEP Cas 524.
Footnote 54. Fairman v Saks Fifth Ave., Inc. (1988, WD Mo) 1988 US Dist LEXIS
13087.
Footnote 55. Hicks v Mid Continent Cold Storage (1987, DC Kan) 1987 US Dist LEXIS
855.
Footnote 56. EEOC Policy Statement N-915, 5/30/86.
115 Aliens
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While aliens are generally protected from job discrimination by Title VII, 57 the
ADEA, and the Equal Pay Act 58 when they work inside the United States, a question
remains as to whether Title VII protects aliens who are not authorized to work in the
U.S., particularly after passage of the Immigration Reform and Control Act (IRCA),
which permits national origin and citizenship discrimination against such aliens. The
EEOC says Title VII protects those aliens, 59 and at least one court agrees with the
EEOC's position that Title VII protects aliens in the U.S. whether or not they are
authorized to work there. 60
Observation: Although aliens working in the U.S. cannot be discriminated against

on a ground prohibited by Title VII, they may be discriminated against because of their
lack of U.S. citizenship or excluded from employment for other lawful reasons.
Title VII does not apply to the employment of aliens outside any "state," 61 including
any state of the United States, the District of Columbia, Puerto Rico, the Virgin Islands,
American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf
lands. 62
Furthermore, Title VII does not protect alien employees of a U.S. company who are
based outside the United States but perform part of their work in the United States. 63
Finally, neither the ADEA nor the EPA protects aliens working outside the U.S. for
foreign or U.S. firms. 64
Observation: The use of the term "Americans" in the title of the Americans with
Disabilities Act (ADA) does not imply that coverage extends only to U.S. citizens.
The ADA protects qualified disabled individuals regardless of their citizenship status
or nationality. 65
115 ----Aliens [SUPPLEMENT]
Practice Aids: Employee's inability to work particular hours due to disability as
grounds for termination or refusal of employment, notwithstanding federal statute or
regulation requiring employer to make reasonable accommodation of disability. 116
ALR Fed 485.
Trials 171.
Footnotes
Footnote 57. Espinoza v Farah Mfg. Co. (1973) 414 US 86, 38 L Ed 2d 287, 94 S Ct
Footnote 59. EEOC Compliance Manual 622.7.
Footnote 60. EEOC v Tortilleria "La Mejor" (1991, ED Cal) 758 F Supp 585, 55 BNA
For a discussion of the coverage, under Title VII and the ADEA, of employers operating
abroad and of foreign employers operating in the U.S., see 39 et seq.
Footnote 62. 42 USCS 2000e(i).
Footnote 63. EEOC Decision No. 77-1 (1976) 19 BNA FEP Cas 1126.
Footnote 65. 29 CFR 1630, Appendix, 1630.1(a).
116 Exemption under Title VII and ADEA for elected officials, their staff,
appointees, and advisors
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The definition of an "employee" 66 under both Title VII 67 and the ADEA 68
excludes: (1) persons who are elected to public office in any state or political subdivision
by the qualified voters; (2) persons who are chosen by such elected officials to be on their
personal staff; (3) persons appointed by such officials on the policymaking level; and (4)
such officials' immediate advisors with respect to the exercise of the constitutional or
legal powers of their offices. However, the exemption does not include state employees
subject to the civil service laws of the state government or its agencies or subdivisions.
Moreover, employees of elected state or local officials are protected under the
Government Employee Rights Act of 1991. 69
Observation: The practical effect of the Government Employee Rights Act is to

negate the Title VII and ADEA exemptions for appointees and advisors of elected state
and local officials, but not for the elected officials themselves.
Title VII's "personal staff" exclusion was construed narrowly to apply to those persons
who are in highly intimate and sensitive positions of responsibility on the staff of elected
officials. 70
The ADEA's personal staff exception applied to a deputy city attorney,
who held one of the lowest positions in his office, was in the public eye representing the
city attorney's office and could exercise that office's legal authority. 71
Resolving a conflict among the circuits, the Supreme Court determined that appointed
state court judges were appointees at the policymaking level and, therefore, were not
"employees" protected by the ADEA against state mandatory retirement requirements.
Thus, a state constitutional provision that involuntarily retired those judges at age 70 did
not conflict with the ADEA. The court determined that state judges, while not considered
policymakers to the same extent as persons in the executive or legislative branches,
nevertheless, exercise discretion concerning issues of public importance. Thus, in the
context of a statute that plainly excludes most important state public officials, the
exclusion is sufficiently broad enough to presumptively include appointed members of
the judiciary. 72
Observation: Since the exclusion of appointed policymakers is worded identically in

Title VII, there is no reason to doubt that appointed state judges will also be outside of
the discriminatory prohibitions of that statute as well, based on the rationale articulated
in Gregory. 73
116 ----Exemption under Title VII and ADEA for elected officials, their staff,
appointees, and advisors [SUPPLEMENT]

Statutes:
government, including Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967. (2 USCS 1311) provides for the specific
rights and protection under the Act.
Case authorities:
Special assistant attorney general position with state, for which ADEA plaintiff was
rejected, is within ADEA's personal staff exemption, since special assistants serve at will
and pleasure of elected attorney general. Rutland v Office of the Attorney Gen. (1994,
SD Miss) 851 F Supp 793, 64 BNA FEP Cas 1297.
Position of general inspector of city (salaried position within city health department,
appointed by mayor with approval of city council, with term of office ending when
appointing mayor loses his office) falls within policymaking exemption of ADEA. Heck
v Freeport (1993, CA7 Ill) 985 F2d 305, 60 BNA FEP Cas 1229, 60 CCH EPD 42021.
Footnotes
Footnote 66. 111.
Footnote 69. 111.
Footnote 70. U.S. v Gregory (1987, CA4) 818 F2d 1114, 46 BNA FEP Cas 1743, 43
CCH EPD 37161, cert den 484 US 847, 98 L Ed 2d 99, 108 S Ct 143, 47 BNA FEP
Cas 96, 49 BNA FEP Cas 1640, 44 CCH EPD 37425.
Footnote 71. Monce v San Diego (1990, CA9) 895 F2d 560, 52 BNA FEP Cas 57, 52
CCH EPD 39603.
Footnote 72. Gregory v Ashcroft (1991, US) 115 L Ed 2d 410, 111 S Ct 2395, 91 Daily
Journal DAR 7293, 13 EBC 2329, 56 BNA FEP Cas 10, 56 CCH EPD 40808.
117 Exemption under ADEA for state and local fire fighters and law enforcement
officers
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The ADEA permits a state or its political subdivisions and agencies, or an interstate
agency, to refuse to hire or to discharge on the basis of age a "law enforcement officer"
or "fire fighter" who has attained the maximum hiring or retirement age under state or
local law applicable on March 3, 1983, pursuant to a bona fide hiring or retirement plan
that is not a subterfuge or means of avoiding the Act. 74 A "fire fighter" is an employee
whose primary duties are performing work directly connected with controlling and
extinguishing fires or maintaining and using fire fighting equipment and apparatus,
including employees who are transferred to supervisory or administrative positions. 75
A "law enforcement officer" is an employee whose primary duties are investigating,
apprehending, or detaining individuals suspected or convicted of offenses against a state's
criminal laws, including guarding individuals incarcerated in penal institutions. The
exemption also applies to employees who are transferred to supervisory or administrative
positions. 76
Motor Vehicle examiners who are primarily involved in law enforcement functions are,
therefore, unprotected by the ADEA and may be denied employment under a state's
established maximum hiring age. 77
These exemptions only apply between January 1, 1987, 78 and December 31, 1993. 79
117 ----Exemption under ADEA for state and local fire fighters and law
enforcement officers [SUPPLEMENT]
Case authorities:
ADEA requires that police and fire workers be offered no less protection than they were
afforded by state and local governments in 1983; thus, where no age restrictions were
applicable to individuals who applied to be park patrol officers in 1983, New York could
not reclassify position in 1990 and subject applicants to age restrictions for first time.
EEOC v New York State (1994, SD NY) 846 F Supp 306, 64 BNA FEP Cas 589.
Illinois' mandatory retirement provision affecting special agents in division of criminal
investigation did not violate ADEA, since state had mandatory retirement provision for
state police long before 3/3/83 and special agents were included within state police
provision before that date. EEOC v Illinois (1993, CA7 Ill) 61 BNA FEP Cas 117, 60
CCH EPD 42040.
Footnotes

Footnote 75. 29 USCS 623(j).
Footnote 76. 29 USCS 630(k).
Footnote 77. EEOC v Massachusetts (1987, DC Mass) 45 BNA FEP Cas 456, 44 CCH
EPD 37548, affd in part, vacated and remanded in part on other grounds (CA1) 48
Footnote 78. 29 USCS 623, note (P.L. 99-592, 7(b)).
Footnote 79. 29 USCS 623, note (P.L. 99- 592, 3(b)).
118 Exemption under ADEA for federal law enforcement officers

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Not only states and local governments, pursuant to the ADEA exemption, 80 but also
the federal government, may establish minimum and maximum age limits for
appointment as law enforcement officers. 81
118 ----Exemption under ADEA for federal law enforcement officers
[SUPPLEMENT]
Footnotes
Footnote 80. 117.
2. Other Employment Laws [119-122]
119 Immigration Reform and Control Act

View Entire Section

In determining whether there are three or fewer employees for purpose of subjecting an
employer to IRCA's discrimination prohibitions, 82 only part-time and full-time
employees that were employed on the date that the alleged discrimination occurred will
be counted. Title VII's 20-calendar- week durational requirement for employer coverage
83 will not be used, except in determining whether the IRCA exception for employers
charged with national origin discrimination covered by Title VII applies. 84
Footnotes
Footnote 82. 8 USCS 1324b(a)(2)(A), discussed at 74.
119.1 Federal family leave statute

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Under the Family and Medical Leave Act, an eligible employee is one who has been
employed for at least 12 months by the employer and for at least 1,250 hours of service
with that employer during the previous 12 months. 85 Special definitions of what
constitutes an eligible employee are contained in the Act with respect to Civil Service
employees 86 and employees of the U.S. Senate. 87
Observation: The Family and Medical Leave Act, by its terms, contains special
provisions applicable to Civil Service employees, 88 which provisions for the most
part parallel the general leave requirement. 89 The leave for Civil Service employees
provisions make no reference to spouses who are both Civil Service employees, and no
reference to the exception of certain highly paid employees.
Employees of the U. S. House of Representatives and Senate are subject to the same
rights and protections as other employees subject to the general leave requirements. 90
However, the Government Employee Rights Act of 1991 91 will be applied with respect
to processing allegations of violations of the Act. 92
119.1 ----Family leave statute [SUPPLEMENT]
Statutes:
2 USCS 60m, 60n, 1204-1213, were repealed in 1995 as part of the Congressional
Accountability Act of 1995, which makes certain laws applicable to the legislative
branch of the federal government. (2 USCS 1312) was enacted and makes the rights
and protection established by the Family and Medical Leave Act applicable to employees
as defined in 1301.
For a discussion of the statutes in the Family and Medical Leave Act specific to Civil
Service Employees, see 15A Am Jur 2d, Civil Service 50.5.
Case authorities:
To determine if employee has requisite 1250 hours of service with her employer (29
USCS 2611(2)(A)(ii)), courts are to examine principles for calculating hours of service
that have been established under Fair Labor Standards Act (29 USCS 201 et seq.);
thus, test for determining if employee's time constitutes working time is whether time is
spent predominantly for employer's benefit or for employee's benefit. Rich v Delta Air
Lines (1996, ND Ga) 3 BNA WH Cas 2d 161, 67 CCH EPD 43929, 131 CCH LC
33353.
Violation of regulations promulgated by Secretary of Labor to implement FMLA may
support cause of action for interference with rights granted by FMLA, even if alleged
violation is not specifically found in statute itself. Fry v First Fidelity Bancorporation
(1996, ED Pa) 3 BNA WH Cas 2d 115, 67 CCH EPD 43943, 131 CCH LC 33332.
To determine if employee has requisite 1250 hours of service with her employer (29
USCS 2611(2)(A)(ii)), courts are to examine principles for calculating hours of service
that have been established under Fair Labor Standards Act (29 USCS 201 et seq.);
thus, test for determining if employee's time constitutes working time is whether time is
spent predominantly for employer's benefit or for employee's benefit. Rich v Delta Air
Lines (1996, ND Ga) 3 BNA WH Cas 2d 161, 67 CCH EPD 43929, 131 CCH LC
33353.
Footnotes
Footnote 85. 29 USCS 2611(2)(A).
Footnote 87. 2 USCS 60m(g)(2).
Footnote 90. 2 USCS 60m, 2 USCS 60n.
Footnote 91. 2 USCS 1204-1213.
Footnote 92. 2 USCS 60m(b).

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Applicants for employment with, and employees of covered employers 93 are protected
under the Employee Polygraph Protection Act (EPPA), regardless of their citizenship
status, 94 with the extent of the protection dependent on both the particular employer
and the circumstances of the lie detector testing. 95
The EPPA also applies to former employees with respect to its prohibitions against
retaliation and against threatening to provide a bad reference for a refusal to take an
examination. 96
However, the federal government is not only exempt as an employer from coverage under
the EPPA, but the Act specifically allows the federal government to subject employees of
private employers to polygraph and other lie detector tests in some circumstances,
depending on the relationship between their employer and the federal government.
Specifically, the federal government, in the performance of any of its counterintelligence
functions, may test the following persons:
an employee of an expert or consultant under contract with the Department of Defense;
97
an employee of an expert or consultant under contract with the Department of Energy in
connection with the Department's atomic energy defense activities; 98
an employee of a contractor with the Federal Bureau of Investigation who is engaged in
any work under the contract. 99
The federal government may also give any type of lie detector test at any time, in the
performance of its intelligence or counterintelligence function, with respect to the
National Security Agency, the Defense Intelligence Agency, or the Central Intelligence
Agency, to:
individuals employed by, assigned or detailed to, 1 or applying for positions 2 with
these agencies;
an employee of a contractor to those agencies; 3
an individual assigned to a space where sensitive cryptologic information is produced,
processed, or stored for those agencies. 4
In performing its intelligence or counterintelligence functions, the federal government
may also administer a lie detector test to any employee of an expert or consultant under
contract with any department, agency, or program whose duties involve access to
information that has been either classified at the level of top secret, or has been
designated as within a special access program under 4.2(a) of Executive Order 12356,
or a successor executive order. 5
Observation: Because the federal government is exempt from EPPA's employer

coverage, it can carry out the lie detector tests and polygraphs on the persons described
above without complying with the stringent restrictions placed on permissible private
employer testing. 6
ALR Fed 485.
Trials 171.
Statutes:
Footnotes
Footnote 95. As to lie detector testing generally, see 998 et seq.
Footnote 97. 29 USCS 2006(b)(1)(A).
Footnote 98. 29 USCS 2006(b)(1)(B).
Footnote 1. 29 USCS 2006(b)(2)(A)(i).
Footnote 2. 29 USCS 2006(b)(2)(A)(iv).
Footnote 3. 29 USCS 2006(b)(2)(A)(iii).
Footnote 4. 29 USCS 2006(b)(2)(A)(v).

Footnote 6. As to lie detector testing generally, see 998 et seq.
121 Migrant and Seasonal Agricultural Worker Protection Act; migrant

agricultural workers
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Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) 7 a
"migrant agricultural worker" is an individual who is employed in agricultural
employment 8 of a seasonal or temporary nature, and who is required to be absent
overnight from his permanent place of residence. 9 The term does not include:
immediate family members of an agricultural employer 10 or a farm labor contractor;
11
a temporary nonimmigrant alien authorized to work in agricultural employment. 12
121 ----Migrant and Seasonal Agricultural Worker Protection Act; migrant
agricultural workers [SUPPLEMENT]
Footnotes
Footnote 7. 29 USCS 1801 et seq., described at 1855.
Footnote 8. 87.
Footnote 10. 86.
Footnote 11. 28 USCS 1802(8)(B)(i).
Farm labor contractors are discussed at 86.
Footnote 12. 29 USCS 1802(8)(B)(ii).
122 --Seasonal agricultural workers

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Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) 13 a
"seasonal agricultural worker" is an individual who is employed in agricultural
employment 14 of a seasonal or temporary nature who is not required to be absent
overnight from his permanent place of residence when employed in one of a variety of
occupations described by the Act. 15 The term does not include:
migrant agricultural workers; 16
immediate family members of an agricultural employer 17 or a farm labor contractor;
18
a temporary nonimmigrant alien authorized to work in agricultural employment. 19
122 --Seasonal agricultural workers [SUPPLEMENT]
Case authorities:
Farmers and produce company cannot be held liable for fatal and other injuries to
migrant workers caused by overturning of pickup truck transporting them to farmers'
farm to harvest bean crop, where farm labor contractor maintained nearly complete
control of workers, including supervision of their work, rates and method of payment,
and authority to hire and fire, because neither farmers nor produce company were
"agricultural employers" within meaning of that term under 29 USCS 1802(2) and (5).
Charles v Burton (1994, MD Ga) 857 F Supp 1574, 2 BNA WH Cas 2d 308.
Footnotes
Footnote 14. 87.
Footnote 15. 29 USCS 1802(10)(A).
Footnote 16. 29 USCS 1802(10)(B)(i), discussed at 121.
Footnote 17. 86.
Footnote 18. 29 USCS 1802(10)(B)(ii), discussed at 85.
Footnote 19. 29 USCS 1802(10)(B)(iii).
III. TYPES OF PROHIBITED DISCRIMINATION: RACE,

RELIGION, SEX, NATIONAL ORIGIN, AGE, DISABILITY [123-227]
A. Race or Color [123-131]
Research References
2 USCS 601, 1202, 1219, 1219,; 23 USCS 140; 29 USCS 1577; 42 USCS
1981, 1985, 2000d, 2000e, 2000e-2, 2000e-16, 3789d, 5301, 5672; 43 USCS 1863;
49 USCS 2219
Executive Order 11246
28 CFR Part 42
ALR Digest, Civil Rights 51-56
Employment or Office; Equal Pay Act; Labor and Employment; Reverse Discrimination;
Segregation
2 Am Jur POF2d 549, Racial Discrimination in Employment (In General; Use of
Statistics)
16 Am Jur Pl & Pr Forms (Rev), Labor and Labor Relations, Form 264 Employment
Coordinator EP-11,100 et seq.
123 Generally
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Many federal and state job discrimination laws prohibit employment discrimination
based on race or color. Race and color discrimination are expressly prohibited by Title
VII for employers, employment agencies, unions, joint labor-management training
committees, 20
and the federal government. 21
Also, Executive Order 11246
prohibits race and color discrimination by federal contractors or subcontractors. 22
Observation: Any state or federal law requiring racial discrimination in employment

is invalid under the due process clause of the Fifth Amendment and the due process
and equal protection clauses of the Fourteenth Amendment. 23
State aspects: Race or color discrimination prohibitions exist in the Fair

Employment Practices (FEP) laws that broadly apply to private employers, the equal
pay laws of similar breadth, and the government contracts statutes of the fifty states,
the District of Columbia, Puerto Rico, and the Virgin Islands. 24

ALR Fed 485.
Trials 171.
Case authorities:
An employer who fires an older black worker because the worker is black does not
thereby violate the Age Discrimination in Employment Act of 1967 (ADEA) (29 USCS
621 et seq.); the employee's race is an improper reason for firing an employee, but it
is improper under Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.),
not under the ADEA. Hazen Paper Co. v Biggins (1993, US) 123 L Ed 2d 338, 113 S Ct
1701, 93 CDOS 2835, 93 Daily Journal DAR 4916, 16 EBC 1881, 61 BNA FEP Cas 793,
61 CCH EPD 42186, 7 FLW Fed S 161, motion den (US) 1993 US LEXIS 3855.
A plaintiff alleging racial discrimination in violation of Title VII of the Civil Rights Act
of 1964 (42 USCS 2000e et seq.) can establish a prima facie case of discriminatory
treatment under the evidentiary framework established in McDonnell Douglas Corp. v
Green (1973) 411 US 792, 36 L Ed 2d 668, 93 S Ct 1817, by showing that (1) the
plaintiff belongs to a racial minority, (2) the plaintiff applied and was qualified for a job
for which the employer was seeking applicants, (3) despite the plaintiff's qualifications,
the plaintiff was rejected, and (4) after such rejection, the position remained open and the
employer continued to seek applicants from persons of the plaintiff's qualifications; once
the plaintiff has met this initial burden, the burden of production shifts to the employer to
articulate some legitimate, nondiscriminatory reason for the plaintiff's rejection; if the
trier of fact finds that the elements of the prima facie case are supported by a
preponderance of the evidence and the employer remains silent, then the court must enter
judgment for the plaintiff. O'Connor v Consolidated Coin Caterers Corp. (1996, US) 134
L Ed 2d 433, 96 CDOS 2222, 96 Daily Journal DAR 3716, 70 BNA FEP Cas 486, 67
CCH EPD P 43927, 9 FLW Fed S 526.
The establishment of a prima facie case of discriminatory treatment under the evidentiary
framework established in McDonnell Douglas Corp. v Green (1973) 411 US 792, 36 L
Ed 2d 668, 93 S Ct 1817, for use in cases brought under Title VII of the Civil Rights Act
of 1964 (42 USCS 2000e et seq.), requires (1) at least a logical connection between
each element of the prima facie case and the illegal discrimination for which such
element establishes a legally mandatory rebuttable presumption, and (2) evidence
adequate to create an inference that an employment decision was based on an illegal
discriminatory criterion. O'Connor v Consolidated Coin Caterers Corp. (1996, US) 134
L Ed 2d 433, 96 CDOS 2222, 96 Daily Journal DAR 3716, 70 BNA FEP Cas 486, 67
African-American male high-school principal whose contract was not renewed after
2-year stint is denied preliminary injunction reinstating him to position, even though he
claims he was not renewed for improper racial reasons and that he will have to repeat
various efforts at building rapport with community, staff, and students if not immediately
returned to post, because principal has already been out of office for some months, has
not pointed to any factors which would indicate that he could not repeat process, and
such "bridge building" activities would seem to be expected of high-school principal.
Maye v City of Kannapolis (1994, MD NC) 872 F Supp 246, 66 BNA FEP Cas 670.
Footnotes
Footnote 20. 42 USCS 2000e-2(a), 2000e-2(b), 2000e-2(c), 2000e-2(c),.
Practice References 2 Am Jur POF2d 549, Racial Discrimination in Employment (In
General; Use of Statistics).
Forms: Complaint in federal courtDiscrimination by employer and state agency on
basis of raceClass action under Section 706 of Civil Rights Act of 1964By
employees. 16 Am Jur Pl & Pr Forms (Rev), Labor and Labor Relations, Form 264.
Law Reviews: Strauss, The Law and Economics of Racial Discrimination in
Employment: The Case for Numerical Standards. 79 Geo. L.J. 1619 (1991).
Footnote 22. Ex Or 11246 202(1), 42 USCS 2000e note.
Annotation: Racial discrimination in the hiring, retention, and assignment of
teachersfederal cases, 3 ALR Fed 325.
Federal laws expressly prohibiting race or color discrimination with respect to federal
funding programs are discussed at 124.
Footnote 23. Colorado Anti-Discrimination Com. v Continental Airlines, Inc. (1963) 372
US 714, 10 L Ed 2d 84, 83 S Ct 1022, 1 BNA FEP Cas 25, 52 BNA LRRM 2889, 1
CCH EPD 9681, 47 CCH LC 50798.
Footnote 24. For a discussion of such laws, see the Employment Coordinator
EP-11,100 et seq.
124 Race or color prohibitions in laws related to federal funding and programs
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The following federal statutes prohibit job discrimination on the basis of race or color by
recipients of federal funds:
Title VI of the Civil Rights Act of 1964; 25

the Justice Assistance Act of 1984; 26
the Juvenile Justice and Delinquency Prevention Act of 1974; 27
the Job Training Partnership Act; 28
the Community Development Block Grant Entitlement Program. 29
124 ----Race or color prohibitions in laws related to federal funding and programs
[SUPPLEMENT]
Case authorities:
Black Contractors Association's allegation that city employed racial discrimination in
awarding of city's construction contracts failed to state cause of action since city was not
constitutionally required to adopt race-based affirmative action programs in awarding
construction contracts. Austin Black Contractors Ass'n v City of Austin (1996, CA5 Tex)
78 F3d 185.
Footnotes
Footnote 26. 42 USCS 3789d; 28 CFR 42.201 et seq.
Footnote 27. 42 USCS 5672; 28 CFR 42.201 et seq.
125 Other federal laws prohibiting race or color discrimination in employment

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Although the statutes do not expressly state that they do, the early civil rights acts, which
include 42 USCS 1981 and 1985(3), prohibit race discrimination in employment. For
instance, 42 USCS 1981 affords a federal remedy against discrimination in private
employment on the basis of race. 30

In addition, the Government Employee Rights Act of 1991 makes Title VII's prohibition
against discrimination based on race or color 31 applicable to personnel actions
affecting employees of the Senate, 32 presidential appointees, 33 and employees of
elected state or local officials. 34 Similarly, the Civil Rights Act of 1991 applies the
rights and protections provided under Title VII to employment by the House of
Representatives 35 and the instrumentalities of Congress. 36
Likewise, 42 USCS 1985(3) also applies to private employment discrimination based
on race, 37 including protecting white people from conspiracies to discriminate based
on their race. 38
125 ----Other federal laws prohibiting race or color discrimination in employment
[SUPPLEMENT]
Statutes:
Case authorities:
Civil Rights Act of 1991 is not to be applied retroactively; thus, Title VII plaintiff in
action pending on date of its enactment, is not entitled to jury trial, or compensatory or
punitive damages. Wisdom v Intrepid Sea-Air Space Museum (1993, CA2 NY) 993 F2d
Employer does not violate ADEA by offering, to all employees terminated as result of
reduction in force, enhanced severance benefits in return for general release of all claims,
including ADEA claims, against employer. DiBiase v SmithKline Beecham Corp. (1995,
CA3 Pa) 48 F3d 719, 19 EBC 1005, 67 BNA FEP Cas 58, 66 CCH EPD 43436, reh, en
banc, den (1995, CA3 Pa) 1995 US App LEXIS 5896.
Employer did not discriminate against black employee in violation of 42 USCS 1981
when it allegedly denied employee opportunity for promotion by withdrawing Data
Analyst vacancy and substituting Market Research Information Analyst position with
qualifications that employee did not meet, where reclassifying of job descriptions was
employer's usual practice, heightened prerequisites disqualified all persons, both black
and white, who had applied for Data Analyst position, and employee offered no direct
evidence that company's articulated reason for not promoting her was pretextual. Theard
v Glaxo, Inc. (1995, CA4 NC) 47 F3d 676, 67 BNA FEP Cas 348, 66 CCH EPD 43458.
Employee claiming racial discrimination in employment failed to state claim under Civil
Rights Act of 1991, where alleged retaliation against employee occurred before
amendment date of 42 USCS 1981, and later reassignments and evaluations
characterized by employee as retaliatory did not bring challenged conduct within

post-enactment period. Harlston v McDonnell Douglas Corp. (1994, CA8 Mo) 37 F3d
379.
Footnotes
Footnote 31. 123.
Footnote 37. Griffin v Breckenridge (1971) 403 US 88, 29 I Ed 2d 338, 91 S Ct 1790, 9
BNA FE Cas 1196, 3 CCH EPD 8284.
Footnote 38. Auriemma v Rice (1990, CA7) 895 F2d 338, 52 BNA FEP Cas 154, 52
CCH EPD 39621, vacated on other grounds, reh gr, en banc (CA7) 902 F2d 1245.
126 What is "race" discrimination, generally

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The federal statutes that prohibit "race" discrimination do not expressly define what
"race" is, and courts in Title VII cases largely have been silent as to what "race" means
under the statute. The U.S. Supreme Court has avoided using anthropological definitions
of race and, instead, has relied on the meaning of race at the time that the legislation was
enacted in a 1981 case. Under 1981 the term "race" includes groups identified by
their ancestry or ethnic characteristics. Ethnic or ancestry discrimination is prohibited by
the statute as race discrimination, even with respect to groups that would not be classified
as races under modern scientific theory. Furthermore, a distinctive physiognomy, such as
a dark skin color, is not essential to warrant 1981 protection provided that the alleged
discrimination is based on a plaintiff's ethnicity and not his nation of origin or religion.
Thus, a U.S. citizen born in Iraq stated a 1981 claim against his former employer where
he alleged that he was discriminated against on the basis of his Arabian race as a person
of Arabian ancestry. 39
Section 1981 also applied to a claim brought by non-Japanese employees claiming

discrimination because of their status as non-Orientals. 40
Similarly, Title VII protects individuals from racial discrimination who meet the
dictionary definition of being Hispanicof or derived from Spain or the Spanish. 41
Observation: The question of whether membership in a particular ethnic group is

synonymous with membership in a "race" has mainly arisen under 42 USCS 1981
rather than Title VII, because Title VII prohibits national origin discrimination. 42
126 ----What is "race" discrimination, generally [SUPPLEMENT]
Case authorities:
Employee was not qualified for position as chief of division of Attorney General's Office
so as to support prima facie case of race discrimination under 42 USCS 1981, where
employee served as Acting Director of Attorney General's Consumer Utility Section for
10 years, and although employee had bachelor's degree and two master's degrees, she was
not attorney, and position required employee to analyze cases, submit briefs, understand
and apply statutory and case law, and present witnesses and conduct hearings, which only
licensed attorney could do. Douglas v Evans (1996, MD Ala) 916 F Supp 1539.
Any scientific definition of race has little to do with realities of racial discrimination.
Sandhu v Lockheed Missiles & Space Co. (1994, 6th Dist) 26 Cal App 4th 846, 31 Cal
Rptr 2d 617, 94 CDOS 5267, 94 Daily Journal DAR 9599, 65 BNA FEP Cas 639.
Footnotes
Footnote 39. Saint Francis College v Al-Khazraji (1987, US) 95 L Ed 2d 582, 107 S Ct
Footnote 40. Adames v Mitsubishi Bank, Ltd. (1990, ED NY) 751 F Supp 1548, 58 BNA
FEP Cas 1587, 54 CCH EPD 40336.
Footnote 41. Bennun v Rutgers State University (1991, CA3) 941 F2d 154, 56 BNA FEP
Cas 746, 56 CCH EPD 40906, cert den (US) 117 L Ed 2d 124, 112 S Ct 956, 58 BNA
127 --Are members of the white race protected

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Members of the white or Caucasian race are protected from race discrimination under
both Title VII and 42 USCS 1981. Under 1981 the statutory language that "all
persons" shall have the same right to make and enforce contracts "as is enjoyed by white
citizens" protects both whites and nonwhites from racial discrimination in private
employment. 43
In addition, white persons can bring claims under 1981 where the
injuries alleged were suffered by vindicating the rights of blacks. 44
Section 1985(3) also prohibits conspiracies to discriminate 45 against white persons
because of their race. 46
Footnotes
Footnote 43. McDonald v Santa Fe Trail Transp. Co. (1976) 427 US 273, 49 L Ed 2d
Footnote 44. Koenigsburg v Century 21 Dept. Stores, Inc. (1986, ED NY) 40 CCH EPD
36280.
Footnote 46. Auriemma v Rice (1990, CA7) 910 F2d 1449, 53 BNA FEP Cas 1276, 5
BNA IER Cas 1758, 54 CCH EPD 40154, cert den (US) 115 L Ed 2d 970, 111 S Ct
2796, 55 BNA FEP Cas 1544, 6 BNA IER Cas 832, 56 CCH EPD 40806.
For a discussion of proof pertaining to a "reverse discrimination" claim see 130.
128 What is "color" discrimination

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Just as "race" is not defined in Title VII or the EEOC regulations, neither is "color."
Separate claims of color discrimination are rare, because they are usually brought with
and subordinated to race discrimination claims. Still, a complaint only based on color
does support a claim upon which relief can be granted under Title VII. 47 Thus,
differences in treatment of individuals because of distinctions in skin tone among them,
although they are of the same race, may give rise to claims of unlawful color
discrimination. For instance, under Title VII, color was an impermissible factor in an
employer's selection of an extremely light- complexioned black female with distinct
Caucasian features over a dark- complexioned black female who was more qualified for
the position. 48 Similarly, a light-skinned black female could bring a claim of "color"
discrimination under Title VII based on her termination by a dark-skinned black
supervisor. 49
However, a Title VII complaint of color discrimination brought by a light- skinned

Pakistani who claimed that his employer discriminated in favor of darker-skinned
Pakistanis was dismissed. The presumption of a Title VII- protected class status on the
basis of color is tied into our national racial history. Because the existence of color
discrimination among Pakistanis is outside the realm of the American experience, the
absence of evidence to substantiate the existence of such color sub-class discrimination in
Pakistan or in this country was fatal to the plaintiff's cause. 50
Furthermore, protection under 1981 has been found to extend to a plaintiff whose skin
color could be perceived as "nonwhite" 51 as well as to a brown-skinned native of India,
regardless of whether he could have been classified as "Caucasian." 52
Footnotes
Footnote 47. Felix v Marquez (1980, DC Dist Col) 24 CCH EPD 31279.
Footnote 48. EEOC Decision No. 72-04554, CCH EEOC Dec 6496.
Footnote 49. Walker v Secretary of Treasury, IRS (1989, ND Ga) 713 F Supp 403, 51
CCH EPD 39319, affd without op (CA11) 953 F2d 650.
Footnote 50. Ali v National Bank of Pakistan (1981, SD NY) 508 F Supp 611, 25 CCH
EPD 31640.
Footnote 51. Abdulrahim v Gene B. Glick Co. (1985, ND Ind) 612 F Supp 256, 40 BNA
Footnote 52. Shah v General Electric Co. (1986, WD NY) 40 BNA FEP Cas 1295.
129 What is "reverse discrimination," generally

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Reverse discrimination refers to discrimination against those who have been favored
historically in employment, such as whites. Since exercising a discriminatory preference
for any racial group, minority or majority, is unlawful under both Title VII and the early
civil rights acts, 53
unless accomplished pursuant to a valid affirmative action plan,
preferences for blacks are unlawful not only where whites are better qualified, 54 but
also where they are equally qualified. 55
Recommendation: Claims commonly characterized as "reverse discrimination"

should be technically identified as racial discrimination issues when brought before a
court or administrative agency, to ensure proper processing and consideration.
129 ----What is "reverse discrimination," generally [SUPPLEMENT]

Case authorities:
Affirmative action plan for promotions within city's police department did not result in
impermissible reverse discrimination against white police department employees where
statistics established manifest imbalance in underepresentation of blacks and plan was
based on promotions on enumerated qualifications. Aiken v City of Memphis (1993, CA6
Tenn) 9 F3d 461, 63 BNA FEP Cas 721, 63 CCH EPD 42678, vacated, stay gr, on reh,
en banc (CA6) 1994 US App LEXIS 1700.
Footnotes
Annotation: What constitutes reverse or majority discrimination on basis of sex or
race violative of Federal Constitution or statutes, 26 ALR Fed 13.
Law Reviews: Graglia, Title VII of the Civil Rights Act of 1964: From Prohibiting to
Requiring Racial Discrimination in Employment. 14 Harv. J.L. & Pub. Pol'y 68, 1991.
Footnote 54. Harmon v San Diego County (1979, SD Cal) 477 F Supp 1084, 20 BNA
FEP Cas 1427, 21 CCH EPD 30293.
Footnote 55. Butta v Anne Arundel County (1979, DC Md) 473 F Supp 83, 20 BNA FEP
Cas 24, 20 CCH EPD 30187.
130 --Proving a reverse discrimination case

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The same standards that prohibit race discrimination against nonwhites apply to whites.
Thus, two white employees who were discharged for wrongfully taking cargo that was in
their employer's keeping stated a Title VII claim where a black employee who also did
the same thing was not discharged. 56
A white plaintiff's ultimate burden in a
disparate treatment case under Title VII is the same as a black plaintiff's, that is, to prove
intentional discrimination because of race. 57
To establish a prima facie case of reverse discrimination, some courts require a claimant
to demonstrate background circumstances that are sufficient to raise the inference that the
employer is the unusual one that discriminates against the majority. This requirement
acts as a modification of the first element of a typical McDonnell-Douglas
casebelonging to a racial minoritysince, in a reverse discrimination situation, this
element does not apply. As a result, the McDonnell-Douglas analysis may still be used
and once an inference of discrimination is raised, the plaintiff need not show direct
evidence of discrimination. 58
The Tenth Circuit follows Parker in holding that, in order to rely on the McDonnell
Douglas burden shifting presumption in a reverse discrimination case, the plaintiff must
establish background circumstances that support an inference that the defendant is one of
the unusual employers that discriminates against the majority. However, that court also
holds that a reverse discrimination plaintiff may depart from the McDonnell Douglas
rationale and make out a prima facie case with direct evidence of discrimination or with
indirect evidence whose cumulative probative force, apart from the operation of the
McDonnell Douglas presumption, reasonably supports the inference that, but for the
plaintiff's status, the employment action in question probably would have favored the
plaintiff. The plaintiff must allege and prove specific facts to that effect. 59
Observation: The Parker court is not completely clear regarding what background
circumstances would be sufficient to raise the necessary inference of discrimination. It
appears from the result in McDonald, however, that evidence of disparate treatment of
members of the majority when compared to similarly situated members of the minority
at least should raise an inference of discrimination.
Observation: One criticism that may be leveled at the background circumstances

requirement in Parker is that it is premised on a mistaken or at least limited notion of
the first element of a McDonnell-Douglas prima facie case, and thereby adds an
unwarranted burden to a white plaintiff that would not be faced by a nonwhite. That is,
the court talks of the first element as "belonging to a racial minority," not to a
"protected group," which under McDonald includes whites to the same extent as
nonwhites. Because many reverse discrimination cases are defended by employers
relying on affirmative action plans that virtually concede a plaintiff's prima facie case,
the issue of whether a prima facie case has been made may not arise or may be glossed
over. 60
Thus, another court has rejected the background circumstances requirement in reverse
discrimination cases on the ground that it is really a requirement to make an affirmative
showing on the ultimate issue of discrimination and would eviscerate the other
requirements of a prima facie case. 61
130 --Proving a reverse discrimination case [SUPPLEMENT]
Case authorities:
First element of prima facie case of reverse discrimination is established when
background circumstances support suspicion that defendant is that unusual employer who
discriminates against majority. Daly v Unicare Corp. (1995, ED Pa) 68 BNA FEP Cas
208.
Rejected white applicant's reverse discrimination suit under 42 USCS 1981 and
1985(3) must fail, where black applicant for night shift general mechanic for yeast
packaging plant was qualified for position and was hired pursuant to bona fide
affirmative action plan (AAP) entered into in conciliation with EEOC, because (1)
employer may hire qualified black worker over more qualified worker pursuant to bona
fide AAP without running afoul of 1981, and (2) 1985(3) plaintiff must show that he
is member of class that has suffered historically pervasive discrimination. Stock v
Universal Foods Corp. (1993, DC Md) 817 F Supp 1300, 61 BNA FEP Cas 727, 61 CCH
EPD 42285.
To make prima facie case of reverse discrimination, plaintiff must show that background
circumstances support suspicion that defendant is unusual employer who discriminates
against majority. Pierce v Commonwealth Life Ins. Co. (1993, ED Ky) 62 BNA FEP Cas
621.
Evidence supported finding that Chicago Transit Authority (CTA) had custom or policy
of terminating white independent contractors who worked for Authority on per diem
basis, and that per diem medical examiner was terminated pursuant to that policy, where
although plaintiff was one of limited number of per diem physicians, testimony of CTA
Board member and lawyer supported view that CTA official was implementing campaign
to drive out white employees, evidence showed that over 70 percent of per diem attorneys
hired were African Americans, although African Americans made up only 3 percent of
attorney labor pool, and that new business was excusively assigned to African American
per diem attorneys, and CTA Board was aware of inordinately large number of reverse
discrimination complaints, but did nothing to limit CTA official's authority in personnel
matters. McNabola v Chicago Transit Auth. (1993, CA7 Ill) 10 F3d 501, 63 BNA FEP
Cas 1064, 63 CCH EPD 42686, 27 FR Serv 3d 735.
White male lieutenants in Chicago Fire Department who claim discrimination against
them in promotions in violation of 42 USCS 1981 have claim denied summarily, where
city's decision to promote out of rank order was made pursuant to its affirmative action
policy, and race-conscious employment decision made pursuant to valid affirmative
action plan is defense to 1981 claim, because city's plan is valid for purposes of 1981
since court has already determined that affirmative action plan is valid under Title VII
(42 USCS 2000e et seq.). McNamara v City of Chicago (1994, ND Ill) 867 F Supp
739.
City's motion for summary judgment is granted, where contractor claimed that city
ordinance requiring showing of good faith efforts to use minority- and women-owned
subcontractors (W/MBE's) in city contracts violated its 1981 rights, contractor lost
contracts because it failed to make good-faith showing, and contractor failed to show that
rejection of its bids was based on ownership by white male, because city plan was not
quota system, but only established flexible goals for use of W/MBEs; requirement that
prime contractors either use W/MBEs or show good-faith effort to do so applied equally
to contractors of any gender or race; and city program was narrowly tailored to address
factually based history of discrimination. Concrete Works of Colo., Inc. v Denver (1993,
DC Colo) 823 F Supp 821.
Footnotes
Footnote 57. Fischbach v Government of District of Columbia Dept. of Corrections
(1991, DC Dist Col) 1991 US Dist LEXIS 16896.
Footnote 58. Parker v Baltimore & O.R. Co. (1981) 209 App DC 215, 652 F2d 1012, 25
Footnote 59. Notari v Denver Water Dept. (1992, CA10) 971 F2d 585, 59 BNA FEP Cas
739, 59 CCH EPD 41634.
Footnote 60. For a discussion of what kinds of background circumstances the courts will
accept, see 131.
Footnote 61. Collins v School Dist. (1990, WD Mo) 727 F Supp 1318, 51 BNA FEP Cas
1574, 52 CCH EPD 39711.
131 --Raising an inference of discrimination with background circumstances

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Different factors may be considered and will satisfy the background circumstances
requirement 62 in a reverse discrimination case, although, standing alone, each one may
not solely establish an inference of discrimination. For example, the fact that all of a
white male claimant's supervisors were black was not sufficient by itself to demonstrate
discrimination. 63 However, where it was not the only evidence of background
circumstances, the fact that both selecting officials were black was probative. The other
"background circumstances" included the plaintiff's superior objective credentials, the
omission of evidence of a proposed affirmative action plan that would have been
inconsistent with the defendant's assertion that race was not a factor in the promotion
decision, and the lack of credit given to the plaintiff's unrebutted version of a selecting
official's private admission of receiving political pressure to choose the black selectee
because of his race. 64 Similarly, "background circumstances" demonstrated that the
employer discriminated against whites where there was evidence of irregular acts of
favoritism toward minority employees, of racial disproportionality in promotions, and of
pressure to increase the percentage of minority employees. 65 Inconsistency in the
employer's selection procedures may also indicate background circumstances to support
the suspicion that the defendant discriminates against the majority. However, where a
plaintiff failed to prove the improprieties and deviations from customary procedure which
he alleged, he failed to establish a prima facie case of reverse discrimination. 66
Background circumstances also raised an inference of reverse discrimination when an
employer terminated a white employee in order to have a defense against an anticipated
claim of discrimination by a discharged black employee who had a history of filing

discrimination charges. 67 Similarly, an employer's instructions to the selection official
to deny a white employee a promotion in favor of a black candidate without regard to the
black candidate's qualifications for the position, and not as part of an affirmative action
plan, constituted background circumstances raising an inference of reverse discrimination
against the white employee. 68
131 --Raising an inference of discrimination with background circumstances
[SUPPLEMENT]
Case authorities:
Allegation of superior qualifications, if supported by facts, can constitute sufficient
background circumstances to establish prima facie case of reverse discrimination.
Harding v Gray (1993, App DC) 9 F3d 150, 63 BNA FEP Cas 475, 63 CCH EPD
42688.
Footnotes
Footnote 62. 130.
Footnote 63. Plummer v Bolger (1983, DC Dist Col) 559 F Supp 324, 37 BNA FEP Cas
262, affd without op 232 App DC 263, 721 F2d 1424, 37 BNA FEP Cas 280.
Footnote 64. Bishop v District of Columbia (1986) 252 App DC 156, 788 F2d 781, 40
Footnote 65. Machakos v Meese (1986, DC Dist Col) 647 F Supp 1253, 42 BNA FEP
Cas 259, affd (App, DC) 859 F2d 1487, 48 BNA FEPO Cas 306, 47 CCH EPD 38352.
Footnote 66. Rivette v United States Postal Service (1986, ED Mich) 625 F Supp 768, 39
BNA FEP Cas 1388.
Footnote 67. Jones v Ohio Dept. of Mental Health (1987, SD Ohio) 687 F Supp 1169, 47
Footnote 68. Underwood v District Armory Bd. (1992, DC Dist Col) 58 BNA FEP Cas
45.
B. Religion or Creed [132-145]
Research References
2 USCS 601, 1202, 1219, 1219,; 5 USCS 2301, 2302, 5550a; 15 USCS 3151;
23 USCS 140; 29 USCS 1577; 42 USCS 300x-7, 708, 2000e, 2000e-2,
2000e-16, 3789d, 5057, 5672, 6727, 98581; 43 USCS 1863; 49 USCS 2219
29 CFR 1605; 41 CFR Part 60-50
ALR Digest, Civil Rights 57, 58

Employment or Office; Labor and Employment
12 Federal Procedural Forms, L Ed, Job Discrimination 45:106
1. In General [132-137]
132 Generally
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Employment discrimination based on religion or creed is prohibited by Title VII,
Executive Order 11246, the Government Employee Rights Act of 1991, various laws
prohibiting discrimination in federally assisted programs, and many state job
discrimination statutes.
Although 42 USCS 1981 does not provide a remedy for religious discrimination, Jews
can claim race discrimination under that law. 69
State aspects: Many states have prohibitions of religious and creed discrimination
written into their Fair Employment Practice (FEP) statutes and other laws of wide
applicability to private employers, as well as government contracts statutes. In cases
involving claims of religious discrimination under these statutes, the courts have dealt
with various issues, such as the sufficiency of the employer's efforts to accommodate
its employees' religious beliefs, and the validity of union-security provisions under
which employees are required as a condition of employment to join a union or to make
a financial contribution. 70
Practice Aids: When faith and work collide: Defining standards for religious
harassment in the workplace, 21 Emp Rel LJ 1:7 (1995).
The legal issues surrounding religious discrimination in the workplace, 44 Lab LJ 246
(1993).
A case of creed: Civil, religious rights clash; A former Seton Hall University employee
says she was fired for not being a "Christian role model", 138 New Jersey LJ 11:3
(1994).
Judicial construction and application of state legislation prohibiting religious
discrimination in employment. 37 ALR5th 349.
Statutes:
The Religious Freedom Restoration Act of 1993, 42 USCS 2000bb, prohibits a
government from substantially burdening a person's exercise of religion, even if the
burden results from a rule of general applicability, except when the government
demonstrates that application of the burden to the person is in furtherance of a
compelling governmental interest, and is the least restrictive means of furthering that
interest. A person whose religious exercise has been burdened can assert that violation as
a claim or defense in a judicial proceeding and obtain appropriate relief against a
government. Government is defined as including a branch, department, agency,
instrumentality, and official, or other person acting under color of law, of the United
States, a state, or a subdivision of a state. In addition, 42 USCS 1988, amended in
1993, now provides that the court, in its discretion, can allow the prevailing party
reasonable attorneys' fees in actions under the Religious Freedom Restoration Act.
Case authorities:
First Amendment precluded review of Title VII sex discrimination and retaliation claims
made by teacher (who was nun) who was denied tenure by Canon Law Department of
School of Religious Studies of Catholic University, since application of Title VII to facts
and relationships in case would violate both Free Exercise and Establishment Clauses by
entangling government in primarily religious function and relationship. EEOC v Catholic
Univ. of Am. (1994, DC Dist Col) 856 F Supp 1, 65 BNA FEP Cas 312.
State labor agency erred in concluding that former employer, who was evangelical
Christian given to "witnessing" (proselytizing) to his youthful employee that employee
was sinner who should change his ways and join employer's church, violated state-law
restriction on religious harassment, since agency's rule that conduct is discriminatory if it
would offend reasonable person was not least restrictive means, when balanced against
employer's free-exercise rights, to achieve compelling state interest in protecting
employees from religious discrimination. Meltebeke v Bureau of Labor & Indus. (1993)
120 Or App 273, 852 P2d 859.
Footnotes
Footnote 70.
Annotation: Judicial construction and application of state legislation prohibiting
religious discrimination in employment, 91 ALR3d 155.
For further discussion of these laws, see the Employment Coordinator EP-11,300 et
seq.
133 Title VII

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Title VII prohibits religious discrimination by employers, 71 employment agencies, 72
labor organizations, 73 and joint labor-management training committees. 74
133 ----Title VII [SUPPLEMENT]
Practice Aids: Proving Title VII religious discrimination, 46 Lab LJ 3:162 (1995).
Religious harassment in the workplace: An analysis of the EEOC's proposed guidelines,
56 Mont LR 1:119 (1995).
Case authorities:
Threat of discharge, or of other adverse employment practices, is sufficient penalty to
establish third element of prima facie case of religious discrimination under Title VII (i.e.
that employee was disciplined, discharged, or otherwise damaged as result of his
assertion of conflicting religious belief). Rodriguez v City of Chicago (1996, ND Ill) 69
BNA FEP Cas 993.
To establish prima facie case of religious discrimination under Title VII, plaintiff must
show that he has bona fide religious belief that conflicts with employment requirement,
that he informed employer of this religious belief, and that he was disciplined,
discharged, or otherwise damaged as result of his assertion of conflicting religious belief.
Rodriguez v City of Chicago (1996, ND Ill) 69 BNA FEP Cas 993.
Title VII protects against requirements of religious conformity, and as such, protects
those who refuse to hold, as well as those who hold, specific religious beliefs; thus,
employee may state claim under Title VII which alleges that he was discriminated against
because of his supervisor's bias against persons who was not of his religious faith.
Shapolia v Los Alamos Nat'l Lab. (1993, CA10 NM) 992 F2d 1033, 61 BNA FEP Cas
1172, 61 CCH EPD 42250.
Footnotes
Footnote 71. 42 USCS 2000e-2(a), 2000e-2(d).
Footnote 73. 42 USCS 2000e-2(c), 2000e-2(d).
The statute's exception allowing religious preferences is discussed at 291 et seq., and
Title VII's application to federal employment is discussed at 136.
Annotation: Establishment and free exercise of religion clauses of Federal
Constitution's First Amendment as applied to employmentSupreme Court cases, 86 L
Ed 2d 797.
Validity, construction, and application of provisions of Title VII of Civil Rights Act of
1964 (42 USCS 2000e et seq.) and implementing regulations, making religious
discrimination in employment unlawful, 22 ALR Fed 580.
Forms: Complaint, petition, or declarationDiscrimination in employment based on
religionReligious belief of employee forbids payment of union duesFor injunctive
relief. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form 141.
134 Executive Order 11246

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Executive Order 11246 requires covered government contractors and other persons
involved in federally assisted construction contracts to refrain from religious
discrimination. 75
Those entities subject to Executive Order 11246 also have an obligation to provide a
reasonable accommodation to religious needs, similar to the obligation required under
Title VII. 76
Observation: No authority exists to define the application of Executive Order

11246's religious discrimination prohibition. Therefore, courts may follow Title VII
precedent in applying the executive order.
Footnotes
Footnote 75. Ex Or 11246 202(1), 301.
Footnote 76. 41 CFR 60- 50.3.
135 Laws regulating federal aid recipients

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Federal statutes prohibiting religious or creed discrimination in federally assisted
programs or activities include the:
Airport and Airway Development Act of 1970. 77

Domestic Volunteer Service Act of 1973. 78
Federal Aid to Highways Act. 79
Full Employment and Balanced Growth Act of 1978. 80
Job Training Partnership Act. 81
Justice Assistance Act of 1984. 82
Juvenile Justice and Delinquency Prevention Act of 1974. 83
Outer Continental Shelf Lands Act; 84
Public Works Employment Act of 1976. 85
the Maternal and Child Health Services Block Grant program. 86
the Child Care and Development Block Grant program. 87
other block grant programs. 88
Footnotes
Footnote 87. 42 USCS 98581(a)(3)(A).
Footnote 88. 42 USCS 300x-7.
136 Ban on religious discrimination in federal employment

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Federal employers of civil service employees may not discriminate against those
employees based on religion. 89 Furthermore, federal employees may elect to work
overtime in compensation for absences due to religious obligations, if their presence is
not necessary to efficiently carry out the mission of their federal employer. 90
Title VII's requirements also apply to most employees of the federal government. 91
Footnotes
Footnote 89. 5 USCS 2301(b)(2), 2302(b)(1)(A).
137 Ban on religious discrimination against Congressional employees,

presidential appointees, and employees of elected state or local officials
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The Government Employee Rights Act of 1991 mandates that the prohibitions against
employment discrimination based on religion under Title VII 92 apply to all personnel
actions affecting employees of the Senate, 93 presidential appointees, 94 and
employees of elected state or local officials. 95
Discrimination based on religion is also prohibited under the Civil Rights Act of 1991,
which applies the rights and protections provided under Title VII to employment by the
House of Representatives 96 and the instrumentalities of Congress. 97
137 ----Ban on religious discrimination against Congressional employees,
presidential appointees, and employees of elected state or local officials
[SUPPLEMENT]
Statutes:

Footnotes
Footnote 92. 133.
2. What "Religion" Encompasses [138-140]
138 "Religion" includes beliefs and practices

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Title VII defines "religion" to include all aspects of religious observance, practice, and
belief. 98 One purpose of defining "religion" so broadly is to minimize the need for
judicial decisions on which particular beliefs and practices qualify as a "religion" in order
to avoid the excessive entanglement of church and state prohibited by the First
Amendment. 99
However, the necessity for a court to determine what is a religion has occurred on
occasion. For example, "religion," within the meaning of Title VII, has been found to
include:
the Black Muslim faith; 1
the "old Catholic" religion, requiring a member to keep her head and legs covered at all
times and to eat only kosher food; 2
atheism. 3
There are, nonetheless, limitations on what constitutes a "religion" under Title VII.
Membership in the Ku Klux Klan, whose meetings were full of "religious pomp and
ceremony," was not protected under the statute because the organization was more social
and political than religious, and because the views held were narrow, temporal and
political in character. 4
138 ----"Religion" includes beliefs and practices [SUPPLEMENT]
Practice Aids: Judicial construction and application of state legislation prohibiting
religious discrimination in employment. 37 ALR5th 349.
Case authorities:
Employee who was fired for refusing to cut his beard held bona fide religious belief that
he was required to wear beard, even though his beliefs did not neatly fit into any
traditional religion, since employee had sincere belief in supreme being who revealed his
will in scripture, and based his belief regarding beard on certain scriptures. Carter v
Bruce Oakley, Inc. (1993, ED Ark) 849 F Supp 673, 64 BNA FEP Cas 967, supp op,
costs/fees proceeding (ED Ark) 849 F Supp 677, 64 BNA FEP Cas 970.
Employee who, after making religious vow, wore anti-abortion button which had color
photograph of fetus and two anti-abortion statements, was engaged in practice included
within definition of religion. Wilson v United States West Communications (1994, DC
Neb) 65 BNA FEP Cas 200.
Footnotes
Footnote 98. 42 USCS 2000e(j).
Footnote 99. Redmond v GAF Corp. (1978, CA7) 574 F2d 897, 17 BNA FEP Cas 208,
16 CCH EPD 8231.
6283.
6180.
Footnote 3. Young v Southwestern Sav. & Loan Asso. (1975, CA5) 509 F2d 140, 10
Footnote 4. Bellamy v Mason's Stores, Inc. (Richmond) (1974, CA4) 508 F2d 5049,
BNA FEP Cas 1, 8 CCH EPD 9852; Brown v Pena (1977, SD Fla) 441 F Supp 1382, 17
BNA FEP Cas 277, affd without op (CA5) 589 F2d 1113, 19 BNA FEP Cas 887.
139 Requirement that employee's religious practices be motivated by religious

beliefs
View Entire Section

Under Title VII, a person's activities may be deemed religious practices even if they are
not formally required under the tenets of the church to which the person belongs as long
as they are sincerely motivated by religious beliefs. 5 Thus, a minister's attendance at
monthly business meetings of his church, 6 and the teaching of weekly bible study
classes, 7 were both found to be "religious practices" protected by Title VII.
However, decorating a church hall for a play was a voluntary social function, not a
religious obligation, and fell outside of Title VII's scope. 8 Also, the practice of
polygamy is not a "religious practice" protected by Title VII's ban on religious
discrimination. Title VII protects only those rights guaranteed by the First Amendment,
9 and the First Amendment does not guarantee a right to practice polygamy. 10
Footnotes
Footnote 5. Redmond v GAF Corp. (1987, CA7) 574 F2d 897, 17 BNA FEP Cas 208, 16
CCH EPD 8231.
Footnote 6. Weitkenaut v Goodyear Tire & Rubber Co. (1974, DC Vt) 381 F Supp 1284,
CCH EPD 8231.
CCH EPD 8231.
Footnote 10. Reynolds v United States (1878) 98 US 145, 25 L Ed 244.
140 Requirement that religious beliefs be sincere

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For purposes of Title VII, the EEOC has adopted the definition of "religious belief"
found in the Supreme Court's Seeger case, 11 which essentially requires that the belief
must be sincere and that it must occupy a place in the possessor's life that is parallel to
the place filled by God in traditional religions. 12
The sincerity of a belief is often judged by how consistently a person has acted with
respect to that belief. 13 Likewise, an action that controverts one of the tenets of the
professed belief in a meaningful fashion may cause doubt about the sincerity of the
belief. Thus, employees discharged because of the disruption caused by their

extramarital affairs could not claim a religious belief in a right to commit adultery when
their Baptist faith specifically forbade such practices. 14 However, an employee's belief
in avoiding work on the Sunday Sabbath was found to be sincerely held although he
occasionally worked from 11 p.m. to midnight on some Sundays. 15 Furthermore, the
length of time a person has consistently acted on a religious belief is not conclusive of the
sincerity issue. Employees who demonstrated actions consistent with recently acquired
religious beliefs have been found to be sincere in their convictions. 16
An employee who sincerely believes that his religion prohibits certain conduct has a
sincerely held religious belief, even if the religion involved does not formally forbid the
conduct in question. 17
However, only those practices that have been brought to the employer's attention before
the alleged religious discrimination occurs can form the basis for a finding that the
employee is sincere in believing that the employer's requirements conflict with them. 18
140 ----Requirement that religious beliefs be sincere [SUPPLEMENT]
Case authorities:
With respect to Title VII religious discrimination claims, employee must establish prima
facie case by proving that he had bona fide religious belief, practice of which conflicted
with employment duty, that he informed his employer of belief and conflict, and that
employer threatened him with or subjected him to discriminatory treatment, including
discharge, because of his inability to fulfill job requirements; prima facie case does not
include showing that employee made any efforts to compromise his religious beliefs or
practices before seeking accommodation from employer. Heller v EBB Auto Co. (1993,
CA9 Or) 8 F3d 1433, 93 CDOS 8247, 93 Daily Journal DAR 14104, 63 BNA FEP Cas
505, 63 CCH EPD 42663.
Footnotes
Footnote 11. United States v Seeger (1965) 380 US 163, 13 L Ed 2d 733, 85 S Ct 850.
Footnote 12. EEOC Decision No. 76-104 (1976) 12 BNA FEP Cas 1359, CCH EEOC
Dec 6500.
Footnote 13. Hansard v Johns- Manville Products Corp. (1973, ED Tex) 5 BNA FEP Cas
707, 5 CCH EPD 8543.
Footnote 14. McCrory v Rapides Regional Medical Center (1986, WD La) 635 F Supp
975, 40 BNA FEP Cas 750, 39 CCH EPD 36028, affd without op (CA5) 801 F2d 396,
Footnote 15. Smith v Pyro Mining Co. (1987, CA6) 827 F2d 1081, 44 BNA FEP Cas
1152.
Footnote 16. Cooper v General Dynamics, Convair Aerospace Div., etc. (1974, ND Tex)
378 F Supp 1258, 8 BNA FEP Cas 567, 86 BNA LRRM 3163, 8 CCH EPD 9565, 74
CCH LC 10217, revd on other grounds (CA5) 533 F2d 163, 12 BNA FEP Cas 1549, 12
Cas 31, 14 CCH EPD 7635.
Footnote 17. Lambert v Condor Mfg., Inc. (1991, ED Mich) 768 F Supp 600, 56 BNA
FEP Cas 532.
Footnote 18. Beasley v Health Care Service Corp. (1991, CA7) 940 F2d 1085, 56 BNA
FEP Cas 1047, 57 CCH EPD 40950.
3. Accommodating Religious Practices [141-145]
141 Reasonable accommodation requirement

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Title VII requires an employer to reasonably accommodate an employee's or job
applicant's religious observances or practices unless it can demonstrate that doing so
would constitute an undue hardship on the conduct of its business. 19
Title VII requires a a reasonable, but not a perfect, accommodation. 20
Observation: Title VII's reasonable accommodation provision is a unique statutory

protection which does not apply to other groups protected by the statute. The provision
is the focus of most religious discrimination litigation.
The right to a reasonable accommodation may not be prospectively waived by an
agreement between an employer and an employee. 21
Most reasonable accommodation problems arise in the context of a conflict between an
employee's or applicant's need to be away from work for religious reasons and an
employer's job requirements concerning availability for work. While the reasonable
accommodation provision expressly covers employers, unions have been held to a
corresponding duty. 22
The EEOC has offered several examples of situations in which a reasonable
accommodation under Title VII may be appropriate because of religious needs. These
situations include:
religious obligations which conflict with an employer's job requirements concerning
availability for work, such as the need to observe a holy day, a period of mourning, or for
devotional prayers, 23 as well as religious mandates that conflict with an employer's job
requirements concerning dress or grooming; 24
religious objections to medical examinations. 25

141 ----Reasonable accommodation requirement [SUPPLEMENT]
Practice Aids: A test of faith: Accommodating religious employees' "work-related
misconduct" in the United States and Canada, 15 Compar Lab LJ 250 (1994).
Statutes:
Case authorities:
In cases involving religious accommodation, reach of employer's obligation depends
upon whether proposed accommodation is reasonable; however, reasonableness of
proposed accommodation must be determined on case by case basis. EEOC v IBP, Inc.
(1993, CD Ill) 61 BNA FEP Cas 1351, 61 CCH EPD 42265.
Making up of number to be used in place of social security number for employee who
refused to use social security number because such was contrary to his religious beliefs
was not reasonable accommodation for employee's religion. Hover v Florida Power &
Light Co. (1994, SD Fla) 67 BNA FEP Cas 34.
Footnotes
Annotation: Supreme Court's construction and application of provisions of 701(j) of
Civil Rights Act of 1964 (42 USCS 2000e(j)) pertaining to employer's reasonable
accommodation of employee's religious practices without undue hardship to employer's
business, 93 L Ed 2d 1044.
Forms: Allegations in complaintReligious discriminationDischargeFailure to
accommodate [42 USCS 2000e-5(f); 29 CFR Part 1605. 12 Federal Procedural
Forms, L Ed, Job Discrimination 45:106.
Practice References Modjeska, Employment Discrimination (2d ed) 1:30.
Law Reviews: After the fall: The employer's duty to accommodate employees
religious practices under Title VII after Ansonia Board of Education v Philbrook [ 107
S. Ct. 367]. 50 U. Pitt. L Rev 513 (1989).
Footnote 20. Fifth CircuitBrener v Diagnostic Center Hospital (1982, CA5) 671 F2d
Eight CircuitChrysler Corp. v Mann (1977, CA8) 561 F2d 1282, 15 BNA FEP Cas
Tenth CircuitPinsker v Joint Dist. Number 28J (1984, CA10) 735 F2d 388, 34 BNA
FEP Cas 1570, 34 CCH EPD 34410.
Footnote 21. EEOC v Townley Engineering & Mfg. Co. (1988, CA9) 859 F2d 610, 47
BNA FEP Cas 1601, 47 CCH EPD 38249, cert den (US) 103 L Ed 2d 832, 109 S Ct
1527, 49 BNA FEP Cas 464.
Footnote 22. International Asso. of Machinists & Aerospace Workers, Lodge 751 v
Boeing Co. (1987, CA9) 833 F2d 165, 45 BNA FEP Cas 791, 126 BNA LRRM 3303, 45
CCH EPD 37593, 108 CCH LC 10253, cert den (US) 99 L Ed 2d 715, 108 S Ct
1488, 46 BNA FEP Cas 888, 128 BNA LRRM 2144, 47 CCH EPD 38172, 108 CCH
LC 10476.
Footnote 25. 29 CFR 1605, Appendix A.
142 Constitutionality of reasonable accommodation requirement

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All Circuit courts directly addressing the reasonable accommodation requirement have
found it to be constitutional. 26
However, there is district court authority in the
Eleventh Circuit that the provision is both unconstitutional 27 and constitutional. 28
State aspects: State job discrimination laws that contain a reasonable

accommodation requirement like the one in Title VII 29 also may be challenged under
both the First Amendment's establishment clause and similarly worded state
constitutional provisions.
Footnotes
Footnote 26. Third CircuitProtos v Volkswagen of America, Inc. (1986, CA3) 797 F2d
129, 41 BNA FEP Cas 598, 40 CCH EPD 36337, cert den 479 US 972, 93 L Ed 2d
Fourth CircuitEEOC v Ithaca Industries, Inc. (1988, CA4) 849 F2d 116, 46 BNA FEP
Cas 1730, 46 CCH EPD 38038, cert den (US) 102 L Ed 2d 325, 109 S Ct 306, 48
Sixth CircuitMcDaniel v Essex International, Inc. (1982, CA6) 696 F2d 34, 30 BNA
FEP Cas 831, 30 CCH EPD 33217, 95 CCH LC 13902.
Seventh CircuitNottelson v Smith Steel Workers D.A.L.U. 19806 (1981, CA7) 643
F2d 445, 25 BNA FEP Cas 281, 106 BNA LRRM 2790, 25 CCH EPD 31599, cert den
454 US 1046, 70 L Ed 2d 488, 102 S Ct 587, 27 BNA FEP Cas 136, 108 BNA LRRM
2923, 27 CCH EPD 32193.
Eighth CircuitHardison v Trans World Airlines, Inc. (1975, CA8) 527 F2d 33, 11 BNA
FEP Cas 1121, 10 CCH EPD 10554, revd on other grounds 432 US 63, 53 L Ed 2d
Ninth CircuitAnderson v General Dynamics Convair Aerospace Div. (1981, CA9) 648
F2d 1247, 26 BNA FEP Cas 101, 26 CCH EPD 31903, cert den 454 US 1145, 71 L Ed
Footnote 27. Isaac v Butler's Shoe Corp. (1980, ND Ga) 511 F Supp 108, 25 BNA FEP
Cas 828, 25 CCH EPD 31757.
Footnote 28. EEOC v Jefferson Smurfit Corp. (1989, MD Fla) 724 F Supp 881, 51 BNA
Footnote 29. State statutes containing this type of provision are noted and discussed in
the Employment Coordinator EP-11,300 et seq.
143 Establishing the need for reasonable accommodation

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Because of the unique protections provided under Title VII's reasonable accommodation
requirement, 30 there are special proof requirements applicable to claims arising under
this provision. A plaintiff typically establishes a prima facie case that a reasonable
religious accommodation is required by showing that he: (1) has a bona fide belief that
compliance with a work requirement is contrary to his religious faith; 31 (2) has
informed his employer about the conflict; and (3) was discharged or disciplined for
refusing to comply with the requirement. 32
Thus, a plaintiff could not establish a prima facie case of religious discrimination that
involved a need for a reasonable accommodation by an employer when:
the employer had already established a mechanism for resolving religious conflicts with
work time through annual and personal leave and had demonstrated its willingness to use
this mechanism in the past to avoid such conflicts; 33
an employee did not notify the employer of the conflict until after her absence had
already begun; 34
the impact on the plaintiff's religious beliefs was minimal or nonexistent, as when a
Jewish plaintiff protested against using the abbreviation "A.D." in a government form
because it forced him to subscribe to the Christian dating system. 35
A plaintiff's prima facie case does not require proof that an acceptable accommodation
has been proposed to the employer. 36
Furthermore, because of the unique obligations imposed by Title VII's reasonable
accommodation requirement for religion, the disparate impact method of proof is not
applicable in such cases. 37
Observation: Should the Supreme Court eventually conclude that Title VII's
reasonable accommodation provision is unconstitutional, 38 there would be no reason
to refrain from analyzing religious discrimination cases under the disparate impact
theory in appropriate circumstances. Furthermore, there is no reason to believe that the
disparate impact theory will not apply to religious discrimination cases which do not
involve a request for a reasonable accommodation.
Footnotes
Footnote 30. 141.
Footnote 31. 138-140.
Footnote 32. Brown v General Motors Corp. (1979, CA8) 601 F2d 956, 20 BNA FEP
Cas 94, 20 CCH EPD 30048.
Footnote 33. Getz v Pennsylvania, Dept. of Public Welfare (1985, ED Pa) 644 F Supp 26,
36571.
Footnote 34. Johnson v Angelica Uniform Group, Inc. (1985, CA8) 762 F2d 671, 37
Footnote 35. benMiriam v Office of Personnel Management (1986, MD NC) 647 F Supp
16 CCH EPD 8231; Anderson v General Dynamics Convair Aerospace Div. (1978,
CA9) 589 F2d 397, 17 BNA FEP Cas 1644, 18 CCH EPD 8652, cert den 442 US 921,
Footnote 37. EEOC v Sambo's of Georgia, Inc. (1981, ND Ga) 530 F Supp 86, 27 BNA
FEP Cas 1210, 27 CCH EPD 32342, affd (CA11) 34 CCH EPD 34507.
Footnote 38. 142.
144 What type of accommodation is "reasonable"

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Although the concept of what constitutes a reasonable accommodation may vary with the
facts, an employer cannot sustain its burden of showing an undue hardship 39 resulting
from the need to accommodate an employee's religion without first showing that it has
attempted an accommodation in good faith, if any accommodation is possible. 40
The focus of the inquiry is on whether the accommodation preserves the employee's
terms, conditions, and privileges of employment, once the employer has eliminated the
religious conflict with the employee's requirements. 41
When more than one means of reasonable accommodation is possible, the employer has
the option of choosing the one which poses the least hardship on the conduct of its
business. 42 However, when the employer can accommodate all of the employee's
religious practices without undue hardship, then it violates Title VII to accommodate just
one of them. 43
An accommodation will not be considered reasonable if the employer imposes an
additional burden on the employee seeking the accommodation which is not imposed on
others who seek accommodation for nonreligious reasons. Thus, an employer that
established a mechanism for soliciting replacements for others by placing a notice in
monthly newspapers or on bulletin boards did not reasonably accommodate a worker
with religious objections to Sunday work when it required him to arrange a trade in shifts
on his own. 44
However, determining what accommodation is reasonable often involves a balancing of
interests. For example, when an employer required all employees to attend devotional
services, the employer's First Amendment right to freely exercise its religion had to be
balanced against the employees' corresponding right under Title VII to observe their own
religion exclusively. Thus, a total cessation of the services constituted an unreasonable
intrusion on the employer's rights. Instead, employees objecting to the services could be
reasonably accommodated by being excused from attendance. 45 However, when an
employee expressed religious objections to a union's position on the issue of abortion, he
was unjustly terminated by the employer for failing to pay union dues. A reasonable
accommodation required the union to contribute the entire amount of the dues to charity
not only that portion which would have been used to support the specific activity which
was objectionable to him. 46
144 ----What type of accommodation is "reasonable" [SUPPLEMENT]
Case authorities:
U.S. Postal Service reasonably accommodated employee who was Seventh Day
Adventist (and could not work from sundown on Friday to sundown on Saturday) and
whose job was terminated, by offering employee opportunity to bid on four positions that
would not interfere with his Sabbath, because employee would have received at least two
of such positions based on his senior bidder status. Wright v Runyon (1993, CA7 Wis) 62
BNA FEP Cas 865.
Employer reasonably accommodated employee who, after making religious vow, wore
anti-abortion button which had color photograph of fetus and two anti-abortion
statements, by suggesting that button be covered while she was in workplace, since
employee's vow required her to wear button, though not prominently displayed, and
covering of button would have allowed employee to continue wearing it while she was at
work. Wilson v United States West Communications (1994, DC Neb) 65 BNA FEP Cas
200.
Employer did not make sufficient effort to accommodate employee's religion, where
employer, who withdrew permission for employee's leave of absence without
explanation, and fired employee after he missed work, made no effort to negotiate with
employee or accommodate his conflict; at very least, Title VII requires that, once
employer gives employee leave of absence to attend religious ceremony, employer
should provide good faith reason for rescinding that permission. Heller v EBB Auto Co.
(1993, CA9 Or) 8 F3d 1433, 93 CDOS 8247, 93 Daily Journal DAR 14104, 63 BNA FEP
Cas 505, 63 CCH EPD 42663.
Back injury for which employee was placed in light-duty status until medical restrictions
were lifted four months later and he was returned to full duty did not make employee
handicapped. Crew v Department of the Navy (1993, MSPB) 58 MSPR 597.
Agency's obligation to provide reasonable accommodation arises when employee
establishes his status as qualified handicapped employee; when agency receives
complaint from employee that he is unable to perform duties of his position and requires
reassignment, agency is entitled to assess independently validity of employee's
statements, medical and other evidence that purportedly establishes handicapping
condition requiring accommodation, and, if appropriate, nature of accommodation that
would be both available and effective. McConnell v Department of the Army (1994,
MSPB) 61 MSPR 163.
Agency's failure to make bona fide offer to assign to another position employee whose
doctor recommended she restrict her work on visual display terminal to 4 rather than 8
hours per day to reduce eye strain, headaches, and stress-related symptoms did not
indicate failure to accommodate since agency discussed accommodating employee's
handicap, but that it would require restructuring and assigning lower grade to position,
which employee said would be unacceptable. Joe v Department of the Army (1994,
MSPB) 62 MSPR 408.
Appellant failed to prove that she was qualified handicapped employee because of
medical restrictions due to her arthritis since, except for possibility of restructuring
appellant's work environment, her suggested accommodation would require agency to
rewrite her position description, creating new and distinct position consisting only of
work on small items, which agency is not required to do; even if she were qualified
handicapped employee, agency was operating under hiring freeze and undergoing
reduction in personnel for some time so that appellant's suggested accommodation would
place undue hardship on agency. Moon v Department of the Army (1994, MSPB) 63
MSPR 412.
Although 29 USCS 791 may in appropriate case require government agency to
consider work at home or reassignment in another position as potential forms of
accommodation for employee with disability, and although 29 CFR 1614.203(b)(2)
provides that job restructuring or part-time or modified work schedules should be
considered, U.S. Attorney's Office properly rejects these options where such employee
concedes she could not perform her work at home and, even if she could, there is no
reason to think her periodic dizziness and nausea would allow her to work regular hours
on consistent basis; moreover, if employee's record demonstrates it is unreasonable to ask
DOJ to continue to put up with her poor attendance, it is equally unreasonable to require
DOJ to refer unqualified employee to another government agency for employment. Carr
v Reno (1994, App DC) 5 ADD 521, 3 AD Cas 434.
Footnotes
Footnote 39. 145.
Footnote 40. Fourth CircuitEdwards v School Bd. (1980, WD Va) 483 F Supp 620, 21
BNA FEP Cas 1375, vacated, in part, on other grounds (CA4) 658 F2d 951, 26 BNA FEP
Cas 1147, 26 CCH EPD 32084.
Sixth CircuitMcDaniel v Essex International, Inc. (1981, WD Mich) 509 F Supp 1055,
25 BNA FEP Cas 574, 26 CCH EPD 31931, affd (CA6) 696 F2d 34, 30 BNA FEP Cas
831, 30 CCH EPD 33217, 95 CCH LC 13902.
Seventh CircuitNottelson v A. O. Smith Corp. (1979, ED Wis) 481 F Supp 756, 21
BNA FEP Cas 969, 21 CCH EPD 30559, reconsideration den, clarified (ED Wis) 489 F
Supp 94, 25 BNA FEP Cas 277, mod on other grounds (CA7) 643 F2d 445, 25 BNA FEP
Cas 281, 106 BNA LRRM 2790, 25 CCH EPD 31599, cert den 454 US 1046, 70 L Ed
2d 488, 102 S Ct 587, 27 BNA FEP Cas 136, 108 BNA LRRM 2923, 27 CCH EPD
32193.
Ninth CircuitAnderson v General Dynamics Convair Aerospace Div. (1978, CA9) 589
Footnote 41. American Postal Workers Union, etc. v Postmaster General (1986, CA9)
1152, 44 CCH EPD 37350, cert den (US) 99 L Ed 2d 503, 108 S Ct 1293, 46 BNA
Footnote 43. EEOC v Universal Mfg. Corp. (1990, CA5) 914 F2d 71, 53 BNA FEP Cas
1811, 54 CCH EPD 40283.

1527, 49 BNA FEP Cas 464.
Footnote 46. EEOC v University of Detroit (1990, CA6) 904 F2d 331, 54 BNA FEP Cas
1657, 54 CCH EPD 40058.
145 Demonstrating undue hardship

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Once an employee has established a prima facie case under Title VII's reasonable
accommodation requirement, 47 the statutory burden of demonstrating that the
accommodation would cause an "undue hardship" 48 shifts to the employer. 49
Since
undue hardship is evaluated at the time the need for accommodation arises, an employer
cannot demonstrate undue hardship by relying on an argument which it did not raise
when the accommodation was requested. 50
Evaluating this burden in the context of religious conflict with an employer's availability
for work requirements, the Supreme Court found that undue hardship exists when an
employer cannot provide the needed accommodation without:
violating the seniority provision of a valid collective bargaining agreement;
suffering more than "de minimis" costs in terms of money or efficiency in attempting to
replace the absent worker;
requiring employees of other religions, or nonreligious employees, to work at times
which are undesirable to them in place of the absent worker. 51
While the determination of how much hardship is "undue" depends on the facts of each
case, 52 factors which have played a part in this determination include:
the practices of similarly situated employers; 53
the burden of employer's accommodation places on a union; 54
the number of employees available for providing the necessary accommodation. 55
Undue hardship must be assessed in terms of the burden on the employer's business.
Therefore, alleged "spiritual costs" are not part of the calculation. 56 Furthermore, the
hardship must be demonstrated through evidence of a resulting disruption in work or
actual imposition on workers. Undue hardship will not be demonstrated by a mere
showing that employees would complain about an accommodation, 57
or by reliance
on assumptions or opinions based on hypothetical facts. 58 Also, state laws that
prevent reasonable accommodations are inconsistent with and, therefore, superseded by
Title VII. Thus, a statutorily required loyalty oath that conflicted with the religious
beliefs of a Jehovah's Witness should have been altered in order to permit the employee
to subscribe to it without violating her religious beliefs. 59
Employers have been able to demonstrate undue hardship when the more than "de
minimis" costs of accommodating the religious conflict involved:
a one time expenditure of $788.50 and a $750 expenditure per year for an undetermined
period of time; 60
an administratively burdensome series of transfers; 61
expensive potential exposure to liability under state safety laws. 62
Undue hardship also has been demonstrated by burdens placed on coworkers and clients.
For example, an accommodation that would have eliminated both the employee's
religious conflict and his exposure to a safety risk was deemed unreasonable since it
required his coworkers to bear his share of the safety risk. 63
However, the EEOC has found that an employer cannot raise a collective bargaining
agreement violation as undue hardship unless it has first contacted the union to determine
whether an accommodation is possible. 64
Undue hardship has also be demonstrated by burdens placed on the public. Thus, a police
department did not have to accommodate an officer by excusing him from the duty to
enforce some laws which were contrary to the officer's religious beliefs. Complete
obedience to all laws is required of the police in order to promote order and discipline. 65
Once the employer shows that all suggested accommodations of an employee's religious
beliefs would involve undue hardship, it may discharge the employee for insubordination
in refusing to perform the work assigned. 66
145 ----Demonstrating undue hardship [SUPPLEMENT]
Case authorities:
Once employee establishes prima facie case of religious discrimination, burden shifts to
employer to show that it could not reasonably accommodate employee without undue
hardship; reasonableness of employer's attempt to accommodate is determined on
case-by-case basis. Cooper v Oak Rubber Co. (1994, CA6 Ohio) 15 F3d 1375, 64 BNA
FEP Cas 48, 63 CCH EPD 42841, 1994 FED App. 44P.
Footnotes
Footnote 47. 143.

Footnote 48. 141.
Footnote 49. Yott v North American Rockwell Corp. (1979, CA9) 602 F2d 904, 20 BNA
FEP Cas 870, 20 CCH EPD 30226, cert den 445 US 928, 63 L Ed 2d 761, 100 S Ct
Footnote 50. EEOC Dec No. 86-3 (1985) CCH EEOC Dec 6861.
Footnote 51. Trans World Airlines, Inc. v Hardison (1977) 432 US 63, 53 L Ed 2d 113,
Footnote 52. United States v Albuquerque (1976, CA10) 454 F2d 110, CA10) 545 F2d
1092, 97 S Ct 2974, 15 BNA FEP Cas 31, 14 CCH EPD 7635; Cross v Bailar (1979,
DC Or) 477 F Supp 748, 32 BNA FEP Cas 1842, 22 CCH EPD 30656.
Footnote 53. Minkus v Metropolitan Sanitary Dist. of Greater Chicago ("MSD") (1979,
Footnote 55. Cross v Bailar (1979, DC Or) 477 F Supp 748, 32 BNA FEP Cas 1842, 22
CCH EPD 30656; Haring v Blumenthal (1979, DC Dist Col) 471 F Supp 1172, 19 BNA
1527, 49 BNA FEP Cas 464.
Footnote 57. Anderson v General Dynamics Convair Aerospace Div. (1978, CA9) 589
2d 290, 99 S Ct 2848, 19 BNA FEP Cas 1377, 19 CCH EPD 9246; Nottelson v A. O.
Smith Corp. (1979, ED Wis) 481 F Supp 756, 21 BNA FEP Cas 969, 21 CCH EPD
30559, reconsideration den, clarified (ED Wis) 489 F Supp 94, 25 BNA FEP Cas 277,
mod on other grounds (CA7) 643 F2d 445, 25 BNA FEP Cas 281, 106 BNA LLRM
BNA FEP Cas 136, 108 BNA LLRM 2923, 27 CCH EPD 32193.
Footnote 61. Baz v Walters (1986, CA7) 782 F2d 701, 40 BNA FEP Cas 173, 39 CCH
EPD 35860.
Footnote 62. Bhatia v Chevron U.S.A., Inc. (1984, CA9) 734 F2d 1382, 34 BNA FEP
Cas 1816, 34 CCH EPD 34441.
Footnote 63. Bhatia v Chevron U.S.A., Inc. (1984, CA9) 734 F2d 1382, 34 BNA FEP
Cas 1816, 34 CCH EPD 34441.
Footnote 64. EEOC Decision No. 86-3 (1985) CCH EEOC Decisions 6861.
Footnote 65. Parrott v District of Columbia (1991, DC Dist Col) 58 BNA FEP 41369.
Footnote 66. Ryan v U.S. Dept. of Justice (1991, CA7) 950 F2d 458, 57 BNA FEP Cas
854, 57 CCH EPD 41113, cert den (US) 119 L Ed 2d 230, 112 S Ct 2309.
C. Sex or Pregnancy [146-155]
Research References
2 USCS 601, 1202, 1219, 1219,
42 USCS 2000e
29 CFR 1604-2(b)(1)
41 CFR 60-20.3
ALR Digests, Civil Rights 59-71
Employment or Office; Equal Pay Act; Homosexuality; Labor and Employment; Sex
Discrimination; Sexual Harassment
16 Am Jur Pl & Pr Forms (Rev), Labor and Labor Relations, Form 269
1. In General [146-151]
146 Generally
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Employment discrimination based on sex is prohibited by Title VII, the Equal Pay Act,
Title IX of the Education Amendments of 1972, Executive Order 11246, the Government
Employee Rights Act of 1991, and many of the federal statutes outlawing discrimination
in federally assisted programs.
The Government Employee Rights Act of 1991 applies Title VII's prohibitions against
employment discrimination based on sex to all personnel actions affecting employees of
the Senate, 67 presidential appointees, 68 and employees of elected state or local
officials. 69 Similarly, the Civil Rights Act of 1991 applies the Title VII rules against
sex discrimination to employment by the House of Representatives 70 and the
instrumentalities of Congress. 71
It is not necessary to a finding of unlawful sex bias that a discriminatory practice focus
on a characteristic peculiar to one of the genders, or that the discrimination be directed at
all members of a sex. It is only necessary that gender be a substantial factor in the
discrimination. 72
State aspects: Many states provide a prohibition on sex or pregnancy discrimination

in their Fair Employment Practice laws, equal pay laws of similar applicability, and
government contracts statutes. 73
Practice Aids: Sex discrimination in job assignment or transfer as violation of Title
VII of Civil Rights Act of 1964 (42 USCS secs. 2000e et seq.) 123 ALR Fed 1.
Sex Discrimination Based on Sexual Stereotyping 53 Am Jur Trials 299.
Women and the workplace: Accommodating the demands of pregnancy, 94 Colum LR
7:2154 (1994).
The Pregnancy Discrimination Act of 1978 and the abortion issue revisited: The case of
Kimberly Turic, 45 Lab LJ 10:652 (1994).
Morning sickness: Testing the proper bounds of employee protection and employer
prerogative under the Pregnancy Discrimination Act, 46 Lab LJ 2:88 (1995).
Statutes:
The Women in Apprenticeship and Nontraditional Occupations Act (29 USCS 2501
et seq.) was enacted in 1992 to provide technical assistance to employers and labor
unions to encourage employment of women in apprenticeable occupations and
nontraditional occupations.
Case authorities:
Title VII is not intended to be exclusive remedy for sex discrimination in workplace;
thus, employment discrimination claim pleaded solely under 42 USCS 1983 and
1985 was not dismissable for failure to plead violation of Title VII and to plead
compliance with procedural requirements thereof. Annis v County of Westchester (1994,
CA2 NY) 36 F3d 251, 65 BNA FEP Cas 1657.
Title VII does not prohibit discrimination based upon disability; thus, defendant
employer was entitled to summary judgment on plaintiff's claim that defendant had
discriminated against her on basis of her pregnancy disability. Brennan v National Tel.
Directory Corp. (1995, ED Pa) 881 F Supp 986, 67 BNA FEP Cas 922.
Claim of former employee against former employer alleging sex discrimination in her
discharge is denied summarily, where plaintiff brought federal civil rights claim under
1981, because 1981 is applicable to racial discrimination but not sex discrimination.
Cornell v General Elec. Plastics (1994, SD W Va) 853 F Supp 221.
In suit charging sex discrimination in promotion practices at university under 20 USCS
1681, plaintiff failed to meet requirement that she show certain facially neutral
employment standards operated more harshly on one group than another where evidence
showed that university actually paid women more than men and treated both equally in
terms of assignment and compensation. Chance v Rice University (1993, CA5 Tex) 989
F2d 179, 61 CCH EPD 42162.
Judgment as matter of law is entered for supervisor in 1983 sex discrimination suit by
corrections officer, where officer claimed that supervisor denied her assignment to sexual
harassment investigations because of her sex, male officer assigned to case was more
experienced than complaining officer, and complaining officer never claimed that she
was better at male officer's job than male officer was, because there is no presumption
that investigations of sexual harassment must be made by officer of same sex as victim,
and reasonable jury could not have found that supervisor harassed officer. Stafford v
Missouri (1993, WD Mo) in 835 F Supp in 1136.
Title VII plaintiff's claim that she was subject to sex discrimination when denied
promotion to position of editor of defendant's newspaper was not barred as matter of law
by First Amendment, since First Amendment does not invalidate every incidental
burdening of press that may result from enforcement of civil statutes of general
applicability, such as Title VII, which serve substantial public interests; Title VII's
prohibitions do not directly or indirectly infringe on newspaper's First Amendment rights,
particularly where its application is content-neutral. Hausch v Donrey of Nev., Inc.
(1993, DC Nev) 62 BNA FEP Cas 1553.
Employee's sex discrimination claims against supervisor are denied summarily in part,
where employee alleged she was victim of discriminatory job assignments and refusals to
hire her as police officer, where these actions occurred prior to 2 years before complaint
was filed, and these claims are sporadic and isolated and are not continuing violations
which could be asserted as part of her claims of failure to investigate. Houck v City of
Prairie Village (1996, DC Kan) 924 F Supp 120.
In an action in which the plaintiff alleged that she was terminated because she was
pregnant and that the termination violated ALM GL ch 151B 3, the plaintiff was not
assisted by the rule that bars an employer from discharging an employee because of the
employee's false responses to the employer's unlawful inquiries where (1) at her
interview, the plaintiff volunteered, without any solicitation from the employer, that her
husband stayed home and took care of their two children with the help of an au pair and
that she was not planning to have any more children, (2) the plaintiff's statement was a
lie, as she knew then that she was pregnant, (3) one month after her hiring, she told her
supervisor that she was pregnant, (4) the supervisor stated that her situation was
untenable and that he felt personally betrayed, and (5) the employer and the plaintiff then
entered a relationship in which the plaintiff was an independent contractor. Lysak v
Seiler Corp. (1993) 415 Mass 625, 614 NE2d 991, 62 BNA FEP Cas 88, summary op at
(Mass) 21 M.L.W. 2934.

In sex discrimination case, plaintiff was not entitled to recover her attorney's fees
incurred for optional state administrative proceedings, since Title VII allows recovery of
attorney's fees only for those administrative proceedings which claimants are required to
invoke before filing court action. Duello v Board of Regents of Univ. of Wis. Sys. (1993)
176 Wis 2d 961, 501 NW2d 38, 62 BNA FEP Cas 665.
In sex discrimination case, where plaintiff invoked optional internal review proceedings
not required under Title VII, court of appeals erroneously awarded her attorneys' fees.
Duello v Board of Regents of Univ. of Wis. Sys. (1993) 176 Wis 2d 961, 501 NW2d 38,
62 BNA FEP Cas 665.
Although transsexual cannot maintain Title VII action qua transsexual, such individuals
claiming discrimination because of their sex, male or female, would clearly state cause of
action under Title VII. Dobre v National R.R. Passenger Corp. (1993, ED Pa) 2 AD Cas
Individual cannot state claim for discrimination based upon transsexualism (because
employment discrimination based upon such is not prohibited by Title VII), and female
transsexual cannot state actionable claim under Title VII for discrimination based upon
her sex as female (because even if individual is psychologically female, Congress did not
intend to ignore anatomical classifications); however, male individual, who was
discharged after informing his employer that he intended to begin living and working full
time as female, who claimed discrimination due to "her" sex under circumstances in
which similarly situated female, living and working full time as male, would not have
been subjected, did state claim under Title VII. James v Ranch Mart Hardware (1994, DC
Kan) 8 ADD 232, 66 BNA FEP Cas 1338.
Pregnancy Discrimination Act does not affirmatively instruct employers to treat
pregnancy, childbirth, or related medical conditions in any particular way; rather, it
instructs employers to treat those things in neutral way. Pacourek v Inland Steel Co.
(1994, ND Ill) 6 ADD 51, 65 BNA FEP Cas 758.
Footnotes
Footnote 72. Tomkins v Public Service Electric & Gas Co. (1977, CA3) 568 F2d 1044,
16 BNA FEP Cas 22, 15 CCH EPD 7954; Munford v James T. Barnes & Co. (1977, ED
Mich) 441 F Supp 459, 17 BNA FEP Cas 107, 16 CCH EPD 8233.
Annotation: Sex discrimination in employment against female attorney in violation of

federal civil rights lawsfederal cases, 81 L ED 2d 894.
Application to tenured positions in educational institutions of provisions of Civil
Rights Act of 1964, as amended (42 USCS 2000e et seq.) prohibiting
Sexual advances by employee's superior as sex discrimination within Title VII of Civil
Rights Act of 1964, as amended (42 USCS 2000e et seq.), 46 ALR Fed 224.
Construction and application of provisions of Equal Pay Act of 1963 (29 USC
206(d)) prohibiting wage discrimination on basis of sex, 7 ALR Fed 707.
Forms: Complaint, petition, or declarationBy state agencyDiscrimination in
employment on the basis of sex. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form
119.
Practice References Modjeska, Employment Discrimination 1:33 et. seq.
Footnote 73.
Annotation: Application of state law to sex discrimination in employment, 87 ALR3d
93.
For further discussion of such laws, see the Employment Coordinator EP-11,500 et
seq.
147 Pregnancy discrimination as sex bias

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Title VII was amended in 1978 by the Pregnancy Discrimination Act (PDA) 74 to
equate discrimination "because of sex" or "on the basis of sex" with discrimination on the
basis of pregnancy, childbirth, or related medical conditions. Furthermore, women
affected by such conditions are required by Title VII to be treated the same for all
employment-related purposes as other persons who are not affected, but who have a
similar ability or inability to work.
In determining whether an employer violated the PDA, it is not necessary to compare the
plaintiff's treatment with that of her male co-workers, as long as a comparison is made
between pregnant and nonpregnant workers. Thus, an employer discharged an employee
in violation of the PDA because it treated her differently from employees with other
medical conditions by summarily discharging her while accommodating them. 75
However, medically based policies restricting employment opportunities do not violate
the PDA when they are enforced uniformly against all employees under medical
restriction and not enforced disproportionately against pregnant employees. 76
Although the PDA prohibits discrimination, it does not prevent an employer from treating
pregnant employees more beneficially than it treats other employees. 77
Observation: Aubrey goes farther than the Supreme Court has in applying the PDA
to the benefit of pregnant employees in the context of fringe benefits, where the high
court has concluded that state laws may provide additional benefits to pregnant
employees without being preempted by Title VII. It also appears to ignore the specific
language of the PDA that equates pregnancy discrimination with sex discrimination,
and requires women affected by pregnancy to be "treated the same for all
employment-related purposes" as are persons similar in their ability or inability to
work. 78
147 ----Pregnancy discrimination as sex bias [SUPPLEMENT]
Practice Aids: Accommodation of pregnancy-related disabilities on the job, 15
Berkeley J. Employ & Lab L 2:335-410 (1995).
What constitutes termination of employee due to pregnancy in violation of Pregnancy
Discrimination Act amendment to Title VII of Civil Rights Act of 1964 (42 USCS
2000e(k)). 130 ALR Fed 473.
Case authorities:
Title VII plaintiff can establish prima facie case of pregnancy discrimination by showing
that she is pregnant (or has indicated intention to become pregnant), that her job
performance has been satisfactory, and that despite her satisfactory job performance, her
employer dismissed her from her position, or took some other adverse employment action
against her, while continuing to have her duties performed by comparably qualified
person. Smith v F.W. Morse & Co. (1996, CA1 NH) 76 F3d 413, 69 BNA FEP Cas 1687,
67 CCH EPD 43884.
Finding that leave policies in school district's collective bargaining agreement
discriminated against pregnant teachers was not clearly erroneous; pregnancy was sole
nonelective medical disability explicitly excluded from sick leave bank provision. United
States v Board of Educ. of Consol. High School Dist. 230 (1993, CA7 Ill) 983 F2d 790,
To establish prima facie case of pregnancy discrimination, plaintiff must show that she
was member of protected class (i.e. pregnant), that she was doing her job well enough to
meet her employer's legitimate expectations, that she was discharged or demoted despite
her satisfactory job performance, and that employer sought replacement for her. Mayorga
v Donnelley Mktg. (1996, ND Ill) 70 BNA FEP Cas 670.
Title VII plaintiff failed to make out prima facie case of discrimination based on
pregnancy, where, although plaintiff was pregnant at one time, she was not pregnant at or
near time she was terminated from employment (which was almost one year after birth of
her child). Brinkman v Kansas Dep't of Corrections (1994, DC Kan) 863 F Supp 1479, 66
BNA FEP Cas 214.
Employer hospital that terminated nurse because she refused to care for HIV-infected
patient because she was pregnant and was afraid of exposing fetus to virus, was not
required under Pregnancy Discrimination Act to make alternative work available for
nurse. Armstrong v Flowers Hosp. (1994, CA11 Ala) 33 F3d 1308, 8 FLW Fed C 709, 65
BNA FEP Cas 1742.
Pregnancy Discrimination Act does not require employer to make accommodations to
pregnant employees which amount to preferential treatment. Armstrong v Flowers Hosp.,
Inc. (1993, MD Ala) 61 BNA FEP Cas 1321.
Medical condition that prevents woman from becoming pregnant naturally is
pregnancy-related medical condition for purposes of Pregnancy Discrimination Act.
Pacourek v Inland Steel Co. (1994, ND Ill) 6 ADD 51, 65 BNA FEP Cas 758.
Footnotes
Footnote 74. 42 USCS 2000e(k).
Annotation: Job discrimination against unwed mothers or unwed pregnant women as
proscribed under Pregnancy Discrimination Act (42 USCS 2000e(k)), 91 ALR Fed
178.
Footnote 75. EEOC v Ackerman, Hood & McQueen, Inc. (1992, CA10) 956 F2d 944, 58
Footnote 76. EEOC v Detroit-Macomb Hosp. Corp. (1992, CA6) 1992 US App LEXIS
647 (unpublished).
Footnote 77. Aubrey v Aetna Life Ins. Co. (1989, CA6) 886 F2d 119, 11 EBC 1655, 50
Annotation: What constitutes reverse or majority discrimination on basis of sex or
race violative of Federal Constitution or statutes, 26 ALR Fed 13.
148 Sexual orientation as basis for protection from "sex" discrimination

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Sexual lifestyles were not considered within the ambit of Title VII's "sex" discrimination
prohibitions by Congress when the law was enacted. 79 Therefore, the statute does not
protect a person from discrimination exclusively based on his sexual proclivities,
practices, 80 orientation, 81 or activities. 82
Therefore, sex discrimination claims have failed when they were pursued under Title VII
by:
homosexuals; 83
bisexuals; 84
transsexuals who underwent sexual reassignment surgery; 85
effeminate men. 86
Similarly, employment actions taken against a woman because she was made pregnant by
the employer did not raise a Title VII claim, since the sex discrimination prohibition does
not encompass actions based on sex-related behavior. 87 Likewise, discrimination
"because of sex" does not include sexual liaisons with or sexual attractions between
employees and nonemployees. 88
State aspects: A few state fair employment practice (FEP) statutes explicitly prohibit
job discrimination based on homosexuality or alternate sexual lifestyles. 89
Observation: Discrimination by public employers based on a person's sexual

lifestyle or sexual preference may be a violation of constitutional rights pursued
directly under the Constitution or federal civil rights statutes. Furthermore, state
constitutions or other laws may also impose prohibitions against such discrimination
on public or private employers.
148 ----Sexual orientation as basis for protection from "sex" discrimination
[SUPPLEMENT]
Practice Aids: Sexual orientation and the workplace: Recent developments in
discrimination and harassment law, 19 Emp Rel LJ 233 (1993).
The wage effects of sexual orientation discrimination, 48 Indust & Lab Rel R 4:726
(1995).
Gay civil rights: are homosexuals adequately protected from discrimination in housing
and employment? 24 Pac LJ 541 (1993).
Reorienting the workplace: Examining California's new Labor Code 1102.1 and other
legal protections against employment discrimination based on sexual orientation, 66 S
Cal LR 2297 (1993).
Sexual orientation rights in the workplace: a proposal for revising and reconsidering
California's Assembly Bill 101, 26 U Cal Davis LR 425 (1993).
Tempering Title VII's straight arrow approach: Recognizing and protecting gay victims
of employment discrimination, 46 Vand LR 1533 (1993).
Sexual orientation and the workplace: a rapidly developing field J 574 (1993).
Case authorities:
Attorney's 1983 claims against prospective state employer are denied summarily, where
state attorney general withdrew offer of employment based upon her plans to "marry"
another woman just prior to starting work for state law department, because court
concludes, inter alia, that employer's interests in efficient operation of department
outweigh attorney's interest in intimate association with female partner under these
unique circumstances. Shahar v Bowers (1993, ND Ga) 836 F Supp 859, 63 BNA FEP
Cas 109, 8 BNA IER Cas 1833, 63 CCH EPD 42701.
Footnotes
Footnote 79. Holloway v Arthur Andersen & Co. (1977, CA9) 566 F2d 659, 16 BNA
FEP Cas 689, 15 CCH EPD 8059; Voyles v Ralph K. Davies Medical Center (1975,
DC Cal) 403 F Supp 456, 11 BNA FEP Cas 1199, 11 CCH EPD 10716, affd without op
(CA9) 570 F2d 354, 18 BNA FEP Cas 866, 16 CCH EPD 8119; Powel v Read's, Inc.
(1977, DC Md) 436 F Supp 369, 15 BNA FEP Cas 1093, 16 CCH EPD 8100.
Annotation: Refusal to hire, or dismissal from employment, on account of plaintiff's
sexual lifestyle or sexual preference as violation of Federal Constitution or federal civil
rights statutes, 42 ALR Fed 189.
Law Reviews: Dubbs v. CIA [866 F.2d 1114]: Homosexual Employee's
Discrimination Claims Subject to Judicial Review. 19 Golden Gate U. L. Rev. 115,
1989.
Footnote 80. EEOC Decision No. 76-67 (1976) CCH EEOC Dec 6493; EEOC Decision
No. 76-75 (1976) 19 BNA FEP Cas 1823, CCH EEOC Dec 6495; EEOC Decision No.
77-28 (1977) 21 BNA FEP Cas 1789, CCH EEOC Dec 6578.
Footnote 81. Ruth v Children's Medical Center (1991, CA6) 1991 US App LEXIS 19062;
Williamson v A.G. Edwards & Sons, Inc. (1989, CA8) 876 F2d 69, 50 BNA FEP Cas 95,
50 CCH EPD 39060, cert den 493 US 1089, 107 L Ed 2d 1061, 110 S Ct 1158, 52
BNA FEP Cas 96.
Footnote 82. Platner v Cash & Thomas Contractors, Inc. (1990, CA11) 908 F2d 902, 53
Footnote 83. Blum v Gulf Oil Corp. (1979, CA5) 597 F2d 936, 20 BNA FEP Cas 108, 20
CCH EPD 30047; De Santis v Pacific Tel. & Tel. Co. (1979, CA9) 608 F2d 327, 19
Footnote 84. Voyles v Ralph K. Davies Medical Center (1975, DC Cal) 403 F Supp 456,
11 BNA FEP Cas 1199, 11 CCH EPD 10716, affd without op (CA9) 570 F2d 354, 18
Footnote 85. Third CircuitGrossman v Board or Education (1975, DC NJ) 11 BNA
Cas 1360, 12 CCH EPD 11241, cert den 429 US 897, 50 L Ed 2d 181, 97 S Ct 261,
Seventh CircuitUlane v Eastern Airlines, Inc. (CA7) No. 84-1431, 8/29/84.

Eighth CircuitSommers v Budget Marketing, Inc. (1982, CA8) 667 F2d 748, 27 BNA
FEP Cas 1217, 27 CCH EPD 32318.
Ninth CircuitHolloway v Arthur Andersen & Co. (1977, CA9) 566 F2d 659, 16 BNA
Footnote 86. De Santis v Pacific Tel. & Tel. Co. (1979, CA9) 608 F2d 327, 19 BNA FEP
Cas 1493, 19 CCH EPD 9271; Smith v Liberty Mut. Ins. Co. (1975, ND Ga) 395 F
Supp 1098, 11 BNA FEP Cas 741, 10 CCH EPD 10429, affd (CA5) 569 F2d 325, 17
Footnote 87. Freeman v Continental Technical Services, Inc. (1988, ND Ga) 48 BNA
FEP Cas 1398.
Footnote 88. Cairo v OH Materials Corp. (1989, MD La) 710 F Supp 1069, 50 BNA FEP
Cas 372, 51 CCH EPD 39278.
Footnote 89. These laws are noted and discussed in the Employment Coordinator
EP-11,500 et seq.
149 Sex discrimination in a single-sex work force

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A conflict has developed among the courts and the EEOC as to whether illegal sex
discrimination can exist in job categories staffed exclusively by persons of one sex.
One view is that the employer must have both male and female employees in similar
positions of employment in order for disparate treatment sex discrimination to be
demonstrated. Therefore, there can be no unlawful sex bias in an action taken with
regard to a job category that is staffed only with members of one sex, 90 since the
gravamen of sex discrimination is disadvantaging employees of one sex relative to those
of the opposite sex. 91
However, the EEOC 92 and the Seventh 93 and Ninth 94 Circuits have indicated
that Title VII is not limited in its protection to those job classifications that include both
genders. Those decisions look beyond the particular job category held by only one sex,
and find comparisons with male employees in other parts of the work force to be
sufficient to demonstrate sex discrimination against women.
Observation: The employer's rationale for imposing special requirements or

restrictions on employees in a job category populated by only one sex may be the key
as to whether disparate treatment discrimination is found. If the rationale could
logically be applied to job categories where only the other sex is employed, or job
categories where both sexes are employed, and is not so applied, an inference of a
sexually discriminatory intent may arise from selecting only one sex to satisfy the
special requirements or meet the unique restrictions.
149 ----Sex discrimination in a single-sex work force [SUPPLEMENT]
Case authorities:
Although neither Title VII nor its legislative history fleshes out meaning of its sweeping
prohibition of sex discrimination, sexual harassment in workplace violates Title VII's
broad rule of workplace equality. Karibian v Columbia Univ. (1994, CA2 NY) 14 F3d
Footnotes
Footnote 90. Stroud v Delta Air Lines, Inc. (1977, CA5) 544 F2d 892, 14 BNA FEP Cas
206, 13 CCH EPD 11302, reh den (CA5) 548 F2d 356 and cert den 434 US 844, 54 L
Footnote 91. EEOC v Delta Air Lines, Inc. (1978, CA5) 578 F2d 115, 18 BNA FEP Cas
35, 17 CCH EPD 8559.
Footnote 92. EEOC Decision No. 6-6-5762 (1968) CCH EEOC Dec 6001.
Footnote 93. Sprogis v United Air Lines, Inc. (1971, CA7) 444 F2d 1194, 3 BNA FEP
Footnote 94. Gerdom v Continental Airlines, Inc. (1982, CA9) 692 F2d 602, 30 BNA
FEP Cas 235, 30 CCH EPD 33156, cert den (US) 75 L Ed 2d 954, 103 S Ct 1534.
150 "Sex-plus" discrimination

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"Sex-plus" discrimination occurs when an employer imposes a requirement on one sex
but not on the other, and then discriminates against or in favor of members of one sex
based on the additional factor.
The Supreme Court recognized the viability of the "sex-plus" theory where an employer
refused to accept job applications from women with preschool age children, but
employed men with preschool age children. 95
The employer's justification for treating workers of one sex differently could only be
based on Title VII's bona fide occupational qualification exception. 96
Observation: While any additional job requirement may be involved in a "sex-plus"

treatment discrimination claim, the most frequently litigated of such claims arise in job
requirements involving personal morality, appearance and grooming, marital status,
and availability for work.
Footnotes
Footnote 95. Phillips v Martin Marietta Corp. (1971) 400 US 542, 27 L Ed 2d 613, 91 S
Footnote 96. International Union, United Auto., etc. v Johnson Controls, Inc. (1991, US)
113 L Ed 2d 158, 111 S Ct 1196, 55 BNA FEP Cas 365, 14 BNA OSHC 2102, 55 CCH
EPD 40605, 1991 CCH OSHD 29256.
Forms: AnswerDefenseTo action under Title VII of Civil Rights Act of
1964Employment on basis of sex a bona fide occupational qualification. 16 Am Jur
Pl & Pr Forms (Rev), Labor and Labor Relations, Form 269.
151 Proving sex discrimination against men

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While there is no explicit statutory language in Title VII that permits different proof
standards to be applied when the sex discrimination claimant is a man instead of a
woman, some courts have found that in a disparate treatment situation a man cannot
make out a prima facie case absent proof of background circumstances showing that the
employer is "unusual" in that it discriminates against the majority (i.e., men). 97 The
rationale for imposing this "additional" proof is the historical context of Title VII and the
fact that the majority, rather than a minority, is the alleged object of discrimination. In
other words, sex discrimination against women is more readily inferred than sex
discrimination against men. 98
Observation: While, as a general matter, modification of a prima facie case to fit the
surrounding circumstances of a Title VII allegation is consistent with standards
established by the Supreme Court for proving disparate treatment discrimination, there
is no direct support from the Supreme Court for the proposition that men are to be held
to a higher standard of proof in establishing a prima facie case of sex discrimination.
Sex discrimination under Title VII includes treating a male employee adversely because
he is the spouse of a pregnant employee. A husband and wife worked for the same
employer and were terminated when the employer learned that the wife was pregnant.
Since only male employees could be terminated because of bias against a pregnant
spouse, the plaintiff was adversely affected because of his gender. 99
151 ----Proving sex discrimination against men [SUPPLEMENT]

Practice Aids: Sex Discrimination Based on Sexual Stereotyping 53 Am Jur Trials
299.
The role of "sex" in same-sex harassment claims, 21 Emp Rel LJ 4:39 (1996).
Should men benefit from the same presumption of unlawful sex discrimination that helps
women claimants under the Equal Pay Act? 44 Lab LJ 186 (1993).
Gender-based affirmative action: Where does it fit in the tiered scheme of equal
protection scrutiny? 41 U Kan LR 591 (1993).
Case authorities:
Male employee did not establish prima facie sex discrimination in promotion claim under
42 USCS 1983, where male was offered position in one location, female was offered
identical position in second location, and male decided he preferred second location, but
employer refused to change offers. Stoner v Wisconsin Dep't of Agric., Trade &
Consumer Protection (1995, CA7 Wis) 50 F3d 481, 67 BNA FEP Cas 521, 66 CCH EPD
43502.
Male Postal Service employee established prima facie case of sex discrimination by
presenting circumstantial evidence of agency's intent to discriminate based on sex by
showing that he was disparately treated since female employee's record was worse than
his and she was reassigned while he was removed. Creer v United States Postal Serv.
(1994, MSPB) 62 MSPR 656.
Footnotes
Footnote 97. Jones v Slater Steels Corp. (1987, ND Ind) 660 F Supp 1570, 43 BNA FEP
Cas 1657, 44 CCH EPD 37400; Parker v Baltimore & O. R. Co. (1986, DC Dist Col)
641 F Supp 1227, 41 BNA FEP Cas 761, 42 CCH EPD 36929.
Footnote 98. Jones v Slater Steels Corp. (1987, ND Ind) 660 F Supp 1570, 43 BNA FEP
Cas 1657, 44 CCH EPD 37400.
Footnote 99. Nicol v Imagematrix, Inc. (1991, ED Va) 773 F Supp 802, 56 BNA FEP
Cas 1533, 57 CCH EPD 41067).
2. Validity Under Federal Law of Particular State Statutes Creating Sex-Based
Distinctions [152-155]
152 State women's protective laws
View Entire Section

Both the EEOC and the OFCCP find state female protective laws to be invalid under
Title VII where they restrict women from jobs requiring lifting or carrying weights
exceeding certain limits, or limit the employment of women during certain hours of the
night, or for more than a specified number of hours per day, or for certain periods of time
before and after childbirth. 1
The EEOC also has determined that an employer violates Title VII when it restricts
women's job opportunities in order to avoid complying with state laws that require:
minimum wages and overtime premiums to be paid for work done by women; 2
special rest and meal periods or physical facilities for women; 3
separate restrooms for employees of each sex. 4
State aspects: Some state job discrimination laws provide an exception from the
general prohibition against sex discrimination that permits the establishment of
separate restrooms or dressing rooms. However, none of these exceptions explicitly
permit an employer to provide fewer employment opportunities for one sex because it
currently provides facilities for only the other sex. Furthermore, none of these
exceptions explicitly require an employer to segregate the use of such facilities based
on sex. 5
More specifically, federal agencies and courts have ruled that employers were not
justified in refusing to hire women as:
core makers, even though a state law prohibits their employment in that occupation; 6
grocery clerks, although a state law prohibited women in jobs requiring the lifting of
objects weighing more than 25 pounds; 7
desk clerks, although the job required more than 48 hours of work weekly and a state
law prohibited women from working more than eight hours daily or 48 hours weekly; 8
card dealers, although a city resolution prohibited the issuance of card-dealing permits
to women; 9
psychiatric orderlies, even though a statute required every psychiatric servicing unit to
provide an adequate number of male personnel; 10
bartenders, 11 despite a municipal ordinance prohibiting women from drawing,
pouring, or mixing any alcoholic liquor, 12 or a state law making it a misdemeanor to
employ a female bartender unless she is the owner or licensee of the premises or the wife
of the owner or licensee. 13
However, an Illinois court ruled that an employer did not violate Title VII by refusing to
employ women where a state protective law prohibited them from working in coal mines.
14
Caution: It is unlikely that the Illinois case will be followed in either federal or other
state courts since the law at issue is a classic example of invalid protective legislation.
Footnotes
Footnote 1. 29 CFR 1604.2(b)(1); 41 CFR 60- 20.3(f)(1).
Law Reviews: Getting women work that isn't woman's work: Challenging gender
biases in the work place under Title VII. 97 Yale LJ 1397 (1988).
Footnote 2. 29 CFR 1604.2(b)(3)(i).
Footnote 3. 29 CFR 1604.2(b)(4)(i).
Footnote 4. 29 CFR 1604.2(b)(5).
Footnote 5. For further discussion of state laws dealing with sex and pregnancy
discrimination, see the Employment Coordinator EP-11,500 et seq.
Footnote 6. 41 CFR 60-20.3(f)(1).
6277.
Footnote 8. Le Blanc v Southern Bell Tel. & Tel. Co. (1971, ED La) 333 F Supp 602, 3
BNA FEP Cas 1083, 4 CCH EPD 7674, affd (CA5) 460 F2d 1228, 4 BNA FEP Cas
818, 4 CCH EPD 7832, cert den 409 US 990, 34 L ED 2d 257, 93 S Ct 320, 5 BNA
6161.
6184.
Footnote 11. 41 CFR 60-20.3(f)(1).
Footnote 12. McCrimmon v Daley (1970, ND Ill) 2 BNA FEP Cas 971, 2 CCH EPD
10291.
Footnote 13. Sail'er Inn, Inc. v Kirby (1971) 5 Cal 3d 1, 95 Cal Rptr 329, 485 P2d 529, 3
BNA FEP Cas 550, 3 CCH EPD 8222, 46 ALR3d 351.
Footnote 14. Freeman United Coal Mining Co., Div. of Material Service Corp. v State
Fair Employment Practices Com. (1983, 5th Dist) 113 Ill App 3d 19, 68 Ill Dec 637, 446
NE2d 543, 45 BNA FEP Cas 360, 31 CCH EPD 33552.
153 State women's protective laws concerning minors

View Entire Section
The EEOC has concluded that state protective laws that discriminate with regard to the
employment of female minors are in violation of Title VII. 15
However, the Wisconsin Supreme Court disagrees with the Commission's position and
has upheld a statute barring girls under 18 from street-trade occupations that are open to
13-year-old boys. Although acknowledging that the state law would have been
superseded by Title VII had it applied to adult women rather than girls, the court said that
Title VII's legislative history revealed no congressional intent to negate the historically
valid state interest in protecting the health, safety, and morals of juveniles. 16
Recommendation: While Warshafsky continues to be the law in Wisconsin, the

EEOC has not altered its position, and federal courts have neither refuted nor endorsed
the Wisconsin Supreme Court's view. The equally compelling counter argument to
Warshafsky is that measures intended to protect the health, safety, and morals of
juvenile girls should be equally applicable to juvenile boys. Thus, employers seeking
to justify actions taken in conformity with these state laws should attempt to have the
dispute settled in state courts where judges may be more sensitive to state law
perogatives, while applicant and employee challengers to such laws should attempt to
have the dispute resolved in federal courts, where national policy may be given greater
consideration than state interests.
Footnotes
Footnote 15. 29 CFR 1604.2(b)(2).
Footnote 16. Warshafsky v Journal Co. (1974) 63 Wis 2d 130, 216 NW2d 197, 7 BNA
154 Effect of invalid state women's protective laws

View Entire Section
When an invalid protective law has been relied on by an employer, the EEOC considers it
a "double" violation of Title VII. Both the exclusion of women employees and the failure
to extend the "protections" to men are considered illegal by the Commission. 17
However, the circuit courts disagree as to the employer's appropriate response to an
invalid protective law. The Eighth Circuit requires the employer to extend the
"protection" to both sexes, 18 while the Ninth Circuit finds the state law to be invalid,
and requires the employer to refrain from imposing the "protection" on anyone. 19
Recommendation: An employer confronted with a potentially invalid state

protective law may find a suit for a declaratory injunction concerning the validity of
the law to be the least expensive way to resolve its legal obligations. The alternative of
extending "protections" could be very costly in terms of money or manpower. Ignoring
the law risks litigation by either the state, or women entitled to the "protection", or
both. Compliance with the state protective law, of course, involves potential sex
discrimination claims under Title VII by not only males denied the "protection" and
females whose opportunities are limited by the "protection," but also federal
enforcement authorities.
Footnotes
Footnote 17. 29 CFR 1604.2(b)(3), 1604.2(b)(4).
Footnote 18. Hayes v Potlatch Forests, Inc. (1972, CA8) 465 F2d 1081, 4 FEP 1037, 4
CCH EPD 7928.
Footnote 19. Homemakers, Inc., of Los Angeles v Division of Industrial Welfare (1974,
155 State laws providing special pregnancy leave and associated benefits
View Entire Section
Some state laws require time off and other associated benefits to be provided to female
workers who are pregnant, regardless of whether the employer provides comparable
benefits for any other employee, for any reason. In one case raising the question of
whether such a law violates Title VII by mandating benefits for only one sex of workers,
a California law that required a minimum amount of unpaid leave for pregnant employees
during the period they were disabled because of that condition was held not to be
preempted by Title VII. The U.S. Supreme Court concluded that the California statute
did not require or permit an act that violated the Pregnancy Discrimination Act (PDA)
amendment to Title VII and did not create a sexually stereotypical notion about the
abilities of pregnant workers, as did invalid protective legislation which presumed the
inferiority of a particular gender. 20
Footnotes
Footnote 20. California Federal Sav. & Loan Asso. v Guerra (1987) 479 US 272, 93 L
Ed 2d 613, 107 S Ct 683, 7 EBC 2657, 42 BNA FEP Cas 1073, 41 CCH EPD 36641.
D. National Origin, Ancestry, or Citizenship [156- 167]

Research References
2 USCS 1202, 1219, 1220
8 USCS 1324b
29 USCS 1577
42 USCS 601, 1981, 2000d, 2000e, 2000e-2, 3789d, 5301, 5672
28 CFR 44.200, 44.201
52 Fed. Reg. 37403, 37404
53 Fed. Reg. 10338
ALR Digests, Civil Rights 51-56
1. National Origin Discrimination [156-162]
156 Express federal prohibition on national origin discrimination

View Entire Section
Go to Supplement
National origin discrimination in employment is explicitly prohibited by Title VII of the
Civil Rights Act of 1964, which covers employers, employment agencies, unions, and
joint labor-management training committees, 21 and by Executive Order 11246, which
covers government contractors. 22
The EEOC has declared that Title VII prohibits an employer from granting benefits to
aliens of one nationality while denying benefits to aliens of another nationality. 23
National origin discrimination in employment is also expressly prohibited by the
Government Employee Rights Act of 1991, which mandates that the prohibitions against
employment discrimination based on national origin under Title VII apply to all
personnel actions affecting employees of the Senate, 24 presidential appointees, 25 and
employees of elected state or local officials. 26
Furthermore, the Civil Rights Act of 1991 applies the rights and protections provided
under Title VII, including the prohibition against national origin discrimination, to
employment by the House of Representatives 27 and the instrumentalities of Congress.
28
Also, the Immigration Reform and Control Act of 1986 (IRCA) prohibits national origin
discrimination by employers and other persons against any individual, other than an
unauthorized alien, with respect to hiring, recruitment, or referral for employment, or
discharge from employment, 29 unless the discrimination with respect to that employer,
person, or individual is covered under 703 of the Civil Rights Act of 1964. 30
Observation: This means that employers covered by Title VII will not be subjected
to duplicate liability under that statute and IRCAonly employers too small in
operation for Title VII coverage are restricted by IRCA's national origin discrimination
prohibitions. However, employers that are also government contractors may be
subjected to liabilities and penalties imposed by Title VII and Executive Order 11246
if the employer is covered by both laws and commits unlawful national origin
discrimination.
IRCA's prohibitions on national origin discrimination are subject to the same exceptions,
31 proof requirements 32 and durational limitations 33 as is its ban on citizenship
discrimination.
The following federal statutes explicitly prohibit job discrimination on the basis of
national origin by recipients of federal funds:
the Justice Assistance Act of 1984; 35
the Juvenile Justice and Delinquency Prevention Act of 1974; 36
the Community Development Block Grant Entitlement Program. 38
State aspects: Many state have laws prohibiting national origin, ancestry,
citizenship, or birthplace discrimination. 39
156 ----Express federal prohibition on national origin discrimination
[SUPPLEMENT]
Practice Aids: National origin discrimination or employer prerogative? An analysis of
language rights in the workplace, 19 Emp Rel LJ 551 (1994).
National origin discrimination in the workplace: What it is and how employers can avoid
it, 45 Lab LJ 10:645 (1994).
Statutes:
Footnotes
Footnote 21. 42 USCS 2000e-2(a)-(d), 2000e-16(a).
Footnote 22. 42 USCS 2000e note 202(1), 301.

6576.
Footnote 29. 8 USCS 1324b(a)(1).
Law Reviews: IRCA's Antidiscrimination Provisions: Protections Against Hiring
Discrimination in Private Employment. 25 San Diego L. Rev. 405, 1988.
Footnote 31. 165.
Footnote 32. 166.
Footnote 33. 167.
Footnote 39. For a discussion of these laws, see the Employment Coordinator
EP-11,700 et seq.
157 Applicability of 1981

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Go to Supplement
42 USCS 1981, which affords a federal remedy against discrimination in private

employment on the basis of race, 40 has been interpreted to include discrimination
based on physical, cultural, or linguistic characteristics. 41 A distinctive physiognomy
is not essential to qualify for 1981 protection provided that the alleged discrimination
was based on the plaintiff's ethnicity and not his nation of origin. 42 For example, a
Colombian who claimed that he was passed over for promotion in favor of less qualified
employees of Cuban national origin stated a claim under 1981, since Latins retain their
status as members of separate races because of their ethnicity, although both individuals
were members of a larger group. 43
Also actionable under 1981 as racial discrimination based on ethnicity, was
discrimination against:
East Indians; 44
Mexican-Americans. 45
157 ----Applicability of 1981 [SUPPLEMENT]
Case authorities:
Bolivian cardiovascular technician's 1981 claim involving alleged employment
discrimination on basis of national origin must be dismissed, where technician resigned
from his position in March 1989 and filed suit in September 1991, 2 months before
amendments expanding scope of 1981 to cover his claim became effective, because
expansive amendments will not be applied retroactively since their application would
impact upon employer's substantive rights and liabilities. Davila v New York Hosp.
(1993, SD NY) 813 F Supp 977.
Footnotes
Footnote 41. 160.
Footnote 42. St. Francis College v Al-Khazraji (1987, US) 95 L Ed 2d 582, 107 S Ct
Footnote 43. Cardona v American Express Travel Related Services Co. (1989, SD Fla)
Footnote 44. Malhotra v Cotter & Co. (1989, CA7) 885 F2d 1305, 50 BNA FEP Cas
1474, 51 CCH EPD 39329.
Footnote 45. Nila v Aurora (1990, ND Ill) 1990 US Dist LEXIS 1600.
158 National origin includes place of origin or birth

View Entire Section

The term "national origin" in Title VII, on its face, refers to the country where a person
was born, or, more broadly, the country from which his or her ancestors came. 46
Discrimination against a person because of his birthplace, including the United States,
also constitutes national origin discrimination under Title VII. 47 However,
discrimination based on an applicant's Judaism is not national origin discrimination based
on a person's place of origin, because Jews come from a variety of countries. 48
A policy that has an equally adverse effect on all nationalities does not violate Title VII.
For example, the Department of State's policy against sponsoring foreign nationals for
permanent resident status, unless there were no other qualified applicants, did not
discriminate among Africans of different nationalities if equally applied. 49 Also, the
mere fact that national security clearance requirements impose special disabilities on the
basis of connection with particular foreign countries is not alone evidence of
discrimination. Thus, the Federal Bureau of Investigation's general policy of giving
special weight, when considering a request for top security clearance, to the fact that the
applicant has relatives residing in a foreign country hostile to U.S. interests is not
evidence of national origin discrimination since the policy would apply to any person of
any nationality with relatives in the pertinent country. 50
Caution: National origin discrimination based on place of birth should not be

confused with the legal relationship a person has with a particular country by virtue of
citizenship. While the Immigration Act covers both types of discrimination, Title VII
does not cover citizenship discrimination. 51
Therefore, Title VII protects Americans of non-Japanese origin from discrimination in
favor of persons of Japanese origin, but not from discrimination permitted by a treaty in
favor of Japanese citizens who happen also to be of Japanese national origin. 52
Footnotes
Footnote 47. Thomas v Rohner-Gehrig & Co. (1984, ND Ill) 582 F Supp 669, 34 BNA
Footnote 48. Lapine v Edward Marshall Boehm, Inc. (1990, ND Ill) 1990 US Dist LEXIS
3459.
Footnote 49. Thiuri v Shultz (1986, DC Dist Col) 654 F Supp 46, 42 BNA FEP Cas 857,
42 CCH EPD 36925.

Footnote 50. Molerio v FBI (1984) 242 App DC 137, 749 F2d 815, 36 BNA FEP CAs
586, 35 CCH EPD 34825.
Footnote 51. For a discussion of whether national origin includes citizenship, see 162.
Footnote 52. Fortino v Quasar Co. (1991, CA7) 57 BNA FEP Cas 712, 57 CCH EPD
41117.
159 National origin includes ancestry

View Entire Section
The term "national origin" broadly includes the country from which a person's ancestors
came. 53
Ancestry is not necessarily limited to places that are or were nations or countries. For
example, Cajunspersons whose ancestors once lived in Acadiaare protected by Title
VII even though Acadia was never a country. 54 However, Appalachians and
low-income or economically disadvantaged persons do not come within the scope of
Title VI's prohibition of national origin discrimination since this prohibition does not
include groups who do not possess a national origin distinguishable from that of other
U.S. citizens. 55
Footnotes
Footnote 54. Roach v Dresser Industrial Valve & Instrument Div. (1980, WD La) 494 F
Footnote 55. Bronson v Board of Education (1982, SD Ohio) 550 F Supp 941.
160 National origin includes physical, cultural, or linguistic characteristics

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Go to Supplement
"National origin discrimination" as defined by the EEOC also includes the denial of equal
employment opportunity because an individual has the physical, cultural, or linguistic
characteristics of a national origin group. 56 For example, an employee's use of the
Ukranian language and her social relationship to the Ukrainian church were sufficient to
establish her as a member of a protected national origin group under Title VII. 57
Furthermore, since Title VII forbids discrimination based on commonly recognized
ethnic distinctions, a gypsy may be entitled to protection against national origin
discrimination by virtue of being a member of an ethnic group not originally from the
United States and different from the majority, even though not related to a particular
country or region. 58 However, discrimination on the basis of a person's Judaism is not
national origin discrimination, since Jews do not have the physical or cultural
characteristics of a national origin group. 59
Discrimination based on a foreign accent may be probative of an intent to discriminate on
the basis of national origin. 60 Because a foreign accent comes within the EEOC
definition of a "linguistic characteristic of a national origin group," proof that the plaintiff
was discriminated against because of his accent would also establish a prima facie case of
national origin discrimination. 61
Observation: Permitting a Title VII national origin claim based solely on ethnic,
cultural, or linguistic characteristics is a more expansive reading of the term "national
origin" than the Supreme Court's declaration that "national origin" in Title VII refers to
discrimination based on the birthplace of a person or a person's ancestors. 62
160 ----National origin includes physical, cultural, or linguistic characteristics
[SUPPLEMENT]
Practice Aids: Accent discrimination and the test of spoken English: A call for an
objective assessment of the comprehensibility of nonnative speakers, 81 Cal LR 1325
(1993).
"English-only" in the workplace and Title VII disparate impact: The Ninth Circuit's
misplaced application of "ability to comply" should be rejected in favor of the EEOC's
business necessity test, 25 Southw U LR 2:407 (1996).
Court rejects EEOC guideline for English-only workplace rules, 29 Trial 10:88 (1993).
Case authorities:
Cause of action under Title VII can be stated against employer who requires its bilingual
workers to speak only English while working on job. Garcia v Spun Steak Co. (1993,
CA9 Cal) 93 CDOS 5408, 93 Daily Journal DAR 9191, 62 BNA FEP Cas 525.
In case involving employer who required its bilingual workers to speak only English
while working on job, union has standing to sue on behalf of bilingual employees, since
employees would have standing to sue in their own right, employees' interest in
conditions of workplace is germane to union's purpose as collective bargaining agent of
employees, and claim asserted (that policy has per se discriminatory impact on all
Spanish-speaking employees) and relief requested (injunction rather than damages) do
not require participation of individual members of union. Garcia v Spun Steak Co. (1993,
CA9 Cal) 93 CDOS 5408, 93 Daily Journal DAR 9191, 62 BNA FEP Cas 525.
Whether employee speaks such little English as to be effectively denied privilege of
conversing on job due to employer's English only rule is question of fact for which
summary judgment is improper. Garcia v Spun Steak Co. (1993, CA9 Cal) 998 F2d 1480,
93 CDOS 5408, 93 Daily Journal DAR 9191, 62 BNA FEP Cas 525, 62 CCH EPD
42456.
Footnotes
Footnote 57. Kovalesky v West Pub Co. (1987, DC Minn) 674 F Supp 1379, 45 CCH
EPD 37828.
Footnote 58. Janko v Illinois State Toll Highway Authority (1989, ND Ill) 704 F Supp
Footnote 59. Lapine v Edward Marshall Boehm, Inc. (1990, ND Ill) 1990 US Dist LEXIS
3459.
Footnote 60. Carino v University of Oklahoma Bd. of Regents (1984, CA10) 750 F2d
Annotation: When does adverse employment decision based on person's foreign
accent constitute national origin discrimination in violation of Title VII of Civil Rights
Act of 1964 (42 USCS 2000e et seq.), 104 ALR Fed 816.
Footnote 61. Bell v Home Life Ins. Co. (1984, MD NC) 596 F Supp 1549, 36 BNA FEP
Cas 440.
An employer's job requirement that an employee be able to speak clear English is
discussed in the context of education, job skills, and experience requirements at 428 et
seq.
Footnote 62. For a discussion of national origin as including birthplace or ancestry, see
158 and , see 159.
161 National origin includes associations with a national origin group

View Entire Section
Title VII prohibits discriminatory employment practices based on an individual's
association with people of a particular national origin. For example, an employee had a
right to sue for national origin discrimination under Title VII based on her association
with the Hispanic community. 63
Observation: Permitting Title VII claims of national origin discrimination based on

a person's mere association with a national origin group is a more expansive reading of
the "national origin" prohibition than the Supreme Court's holding that the term
"national origin" includes a person's place of origin or that of his ancestors. 64
Footnotes
Footnote 63. Reiter v Center Consolidated School District No. 26-JT (1987, DC Colo)
618 F Supp 1458, 39 BNA FEP Cas 833.
Footnote 64. For a discussion of national origin as including birthplace or ancestry, see
158 and , see 159.
162 National origin does not include citizenship

View Entire Section
Title VII does not prohibit discrimination based on citizenship. 65
For example, an
employee of an international employer who alleged that she, as an American- based
employee, was treated differently from employees based in another country, did not have
a cause of action under the statute. 66 However, an employment action based on
citizenship may be national origin discrimination if the employer's intent is to
discriminate based on national origin or if there is an adverse effect on a national origin
group. 67
Footnotes
Footnote 66. Fernandes-Middleton v Air India (1989, DC Dist Col) 52 CCH EPD
39570.
2. Citizenship Discrimination [163-167]
163 Laws that prohibit citizenship discrimination

View Entire Section
The Immigration Reform and Control Act of 1986 (IRCA), amending the Immigration
and Nationality Act, makes it an unfair immigration-related employment practice for an
employer or other entity to discriminate against any individual, other than an
unauthorized alien, with respect to hiring, recruitment, or referral for employment, or to
discriminatorily discharge an individual from employment because of the individual's
citizenship. 68 Effective November 29, 1990, with respect to hiring, it is an unfair
immigration-related employment practice to request, for purposes of satisfying the
requirements of IRCA's employment verification system, more or different documents
than are required under that system or to refuse to honor tendered documents that on their
face reasonably appear to be genuine. 69
Footnotes
164 What is citizenship

View Entire Section
The prohibitions on citizenship discrimination in the Immigration Reform and Control
Act (IRCA) include not only persons who are U.S. citizens or nationals, 70 but also
aliens lawfully admitted for permanent or temporary residence, including special
agricultural workers performing seasonal agricultural services in the U.S., and refugees
or persons granted asylum. 71 A previously illegal alien whose application for
"temporary residence" status is approved will be adjusted to that of a lawful temporary
resident as of the date indicated on the application fee receipt issued by the INS. 72
Thus, IRCA forbids discrimination against aliens who have applied for, but who have not
yet been granted, temporary residence status. 73
The citizenship discrimination prohibition does not include permanent resident aliens
who fail to apply for naturalization within six months of becoming eligible, 74 or aliens
who have not been naturalized within two years from the date of their applications (not
counting the time spent administratively processing the application), unless the alien can
establish that he is actively pursuing naturalization. 75
Footnotes
Footnote 70. 8 USCS 1324b(a)(3)(A).
Footnote 71. 8 USCS 1324b(a)(3)(B).
Footnote 72. 28 CFR 44.201(c)(2)(ii).
Law Reviews: Mitchell, Illegal Aliens, Employment Discrimination, and the 1986
Immigration Reform and Control Act. 40 Lab. L.J. 177, 1989.
Footnote 74. 8 USCS 1324b(a)(3)(B)(i).
Footnote 75. 8 USCS 1324b(a)(3)(B)(ii).
165 Exceptions to citizenship discrimination prohibitions

View Entire Section
The Immigration Reform and Control Act does not prohibit citizenship discrimination if
citizenship is required by law, regulation, executive order, or a government contract, or if
the Attorney General has determined that citizenship is essential for an employer to do
business with an agency or department of federal, state, or local government. 76
Furthermore, any employer or other covered person may hire, recruit, or refer a U.S.
citizen or national over an alien if the applicants are equally qualified. 77
Footnotes
Footnote 76. 8 USCS 1324b(a)(2)(C).
166 Proof of citizenship discrimination

View Entire Section
The major proof question that has thus far arisen under the Immigration Reform and
Control Act (IRCA) is whether the statute prohibits only intentional discrimination, or if
it also forbids neutral employment practices that have a disparate impact.
The Justice Department's position is that IRCA prohibits only knowing and intentional
discrimination, or a pattern and practice of knowing and intentional discrimination, 78
but not neutral conduct with an unintended disparate impact. 79 Nevertheless, statistics
may help establish proof of a discriminatory intent under IRCA since discriminatory
intent can be proven both directly and circumstantially, as in Title VII disparate treatment
cases. 80
However, the use of disparate impact analysis under IRCA has been endorsed by a court
in the Fifth Circuit. 81
Footnotes
Footnote 81. League of United Latin American Citizens v Pasadena Independent School
Dist. (1987, SD Tex) 662 F Supp 443, 43 BNA FEP Cas 945, 2 BNA IER Cas 40, 43
CCH EPD 37098.
167 Duration of ban on citizenship discrimination

View Entire Section
The discrimination prohibitions of the Immigration Reform and Control Act will expire
following either: (1) a joint resolution repealing the employer sanctions on hiring
unauthorized aliens, or (2) a joint resolution approving a finding by the Comptroller
General that the sanctions have resulted in no significant discrimination or that the
administration of the antidiscrimination provisions has resulted in an unreasonable
burden on employers. 82
Footnotes
Footnote 82. 8 USCS 1324b(k).
E. Age [168-172]
Research References
2 USCS 1202, 1219, 1220; 5 USCS 3301; 29 USCS 623, 630, 631, 633a,
1625.2, 1625.10
32 CFR 12.901; 41 CFR 1-12.1000

Discharge From Employment or Office; Labor and Employment
Age Discrimination in Employment Action under ADEA. 29 Am Jur Trials 1
Age as bona fide occupational qualification under ADEA. 15 Am Jur POF2d 481
1. Age Discrimination Prohibitions [168-170]
168 Employers and other entities

View Entire Section
Go to Supplement
The ADEA prohibits age discrimination by employers 83 including most personnel
actions taken by the federal government, 84 as well as the states, their political
subdivisions, and any interstate agencies, 85 employment agencies, 86 and labor
unions. 87
The Government Employee Rights Act of 1991 extends the ADEA's age
discrimination prohibitions to all personnel actions affecting employees of the Senate, 88
presidential appointees, 89 and employees of elected state or local officials. 90
The ADEA's prohibitions are limited to individuals who are at least 40 years of age. 91
Before January 1, 1987, the ADEA did not prohibit age discrimination against persons 70
years of age and older. 92 The age-70 ceiling was removed on that date, so that the
ADEA now generally prohibits discrimination against all persons 40 years of age and
over, while the age 70 ceiling continues to apply to causes of action that arose before
January 1, 1987. 93
The EEOC has declared that the ADEA forbids age discrimination not only against older
employees in favor of younger employees, but also between protected individuals
themselves. Thus, if a 42-year-old and a 52-year-old both apply for the same position,
the employer may not reject either applicant on the basis of age, but must make its
decision on some other basis. 94
The comprehensive statutory and administrative scheme set forth in the ADEA and
related regulations indicate Congress' intent to preclude the use of any other federal
statute as the source of an implied private right of action for age discrimination. 95
The ADEA is not an exclusive remedy for age discrimination in nonfederal employment.
Therefore, state and local government employers are subject to age discrimination claims
under 42 USCS 1983, if other statutory requirements of such suits are satisfied. 96
State aspects: Discrimination based upon age has been subjected to close legislative
scrutiny at the state, as well as the Federal, level. It has been held that the Federal
Government has not pre-empted the field of age discrimination. 97
168 ----Employers and other entities [SUPPLEMENT]

Practice Aids: Arbitrability, preemption, and preclusion: developing issues in age
discrimination claims, 43 Lab. LJ 313, (May 1992).
Expanding the hostile environment theory to cover age discrimination: How far is too
far? 23 Pepp LR 2:565 (1996).
Statutes:
Case authorities:
An employer who fires an older black worker because the worker is black does not
thereby violate the Age Discrimination in Employment Act of 1967 (ADEA) (29 USCS
621 et seq.); the employee's race is an improper reason for firing an employee, but it
is improper under Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.),
not under the ADEA. Hazen Paper Co. v Biggins (1993, US) 123 L Ed 2d 338, 113 S Ct
1701, 93 CDOS 2835, 93 Daily Journal DAR 4916, 16 EBC 1881, 61 BNA FEP Cas 793,
61 CCH EPD 42186, 7 FLW Fed S 161, motion den (US) 1993 US LEXIS 3855.
The "disparate treatment" theory of employment discriminationwhich applies where the
employer simply treats some people less favorably than others because of their race,
color, religion, or other protected characteristicis available under the Age
Discrimination in Employment Act of 1967 (29 USCS 623(a)(1)). Hazen Paper Co. v
Biggins (1993, US) 123 L Ed 2d 338, 113 S Ct 1701, 93 CDOS 2835, 93 Daily Journal
DAR 4916, 16 EBC 1881, 61 BNA FEP Cas 793, 61 CCH EPD 42186, 7 FLW Fed S
161, motion den (US) 1993 US LEXIS 3855.
For purposes of determining whether an employer's violation of the Age Discrimination
in Employment Act of 1967 (ADEA) (29 USCS 621 et seq.) is "willful" within the
meaning of 7(b) of the ADEA (29 USCS 626(b)), so as to give rise to liquidated
damages, a definition of willfulness which requires that the employer either knew that its
conduct was prohibited by the statute, or showed reckless disregard for the matter, is
applicable to all disparate treatment cases under the ADEA; once a "willful" violation has
been shown, the plaintiff employee need not additionally (1) demonstrate that the
employer's conduct was outrageous, (2) provide direct evidence of the employer's
motivation, or (3) prove that age was the predominant rather than a determinative factor
in the employment decision. Hazen Paper Co. v Biggins (1993, US) 123 L Ed 2d 338,
113 S Ct 1701, 93 CDOS 2835, 93 Daily Journal DAR 4916, 16 EBC 1881, 61 BNA FEP
Cas 793, 61 CCH EPD 42186, 7 FLW Fed S 161, motion den (US) 1993 US LEXIS
3855.
An employer who knowingly relies on age in reaching an employment decision does not
invariably commit a knowing or reckless violation of the Age Discrimination in
Employment Act of 1967 (ADEA) (29 USCS 621 et seq.) so as to give rise to
liquidated damages under 7(b) of the Act (29 USCS 626(b)); if an employer
incorrectly but in good faith and nonrecklessly believes that the ADEA permits a
particular age-based decision, then liquidated damages should not be imposed. Hazen
Paper Co. v Biggins (1993, US) 123 L Ed 2d 338, 113 S Ct 1701, 93 CDOS 2835, 93
Daily Journal DAR 4916, 16 EBC 1881, 61 BNA FEP Cas 793, 61 CCH EPD 42186, 7
FLW Fed S 161, motion den (US) 61 USLW 3803.
The firing of an older employee, because the employer believes that productivity and
competence decline with age, is age discrimination within the prohibition of the Age
Discrimination in Employment Act of 1967 (ADEA) (29 USCS 621 et seq.); the
ADEA commands that employers are to evaluate older employees on their merits and not
their age, and employers may not rely on age as a proxy for an employee's remaining
characteristics, such as productivity, but must focus on those factors directly. Hazen
FLW Fed S 161, motion den (US) 1993 US LEXIS 3855.
The fact that a plaintiff in a case brought under the Age Discrimination in Employment
Act (ADEA) (29 USCS 621 et seq.) was replaced by someone outside the protected
class under the ADEA, which class 29 USCS 631(a) limits to individuals who are at
least 40 years of age, is not a proper element of establishing a prima facie case under the
evidentiary framework established in McDonnell Douglas Corp. v Green (1973) 411 US
792, 36 L Ed 2d 668, 93 S Ct 1817, for use in discriminatory- treatment cases brought
under Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.) and assumed
to apply to cases brought under the ADEA, because the fact of replacement by someone
under 40 lacks probative value in that such fact fails the requirement that there be at least
a logical connection between each element of the prima facie case and the illegal
discrimination for which it establishes a legally mandatory rebuttable presumption, as (1)
the language of 631(a) and 29 USCS 623(a)(1), which provides that the
discrimination prohibited by the ADEA is discrimination because of an individual's age,
does not ban discrimination against employees because they are aged 40 or older, but
instead bans discrimination against employees because of their age and limits the
protected class to those who are 40 or older, and (2) the fact that one person in the
protected class has lost out to another person in the protected class thus is irrelevant, so
long as the person has lost out because of the person's age; for purposes of the ADEA,
there can be no greater inference of age discrimination, as opposed to "40 or over"
discrimination, when a 40-year-old is replaced by a 39-year-old than when a 56-year-old
is replaced by a 40-year-old. O'Connor v Consolidated Coin Caterers Corp. (1996, US)
134 L Ed 2d 433, 96 CDOS 2222, 96 Daily Journal DAR 3716, 70 BNA FEP Cas 486, 67
With respect to the requirement for establishing a prima facie case, under the evidentiary
framework established in McDonnell Douglas Corp. v Green (1973) 411 US 792, 36 L
Ed 2d 668, 93 S Ct 1817, for use in discriminatory-treatment cases brought under Title
VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.) and assumed to apply to
cases brought under the Age Discrimination in Employment Act (ADEA) (29 USCS
621 et seq.), that the evidence be adequate to create an inference that an employment
decision was based on an illegal discriminatory criterion, such an inference cannot be
drawn in an ADEA case from the replacement of one worker with another worker who is
insignificantly younger; because the ADEA prohibits discrimination on the basis of age
and not class membership, the fact that a replacement is substantially younger than the
plaintiff is a far more reliable indicator of age discrimination than is the fact that the
plaintiff was replaced by someone outside the protected class. O'Connor v Consolidated
Coin Caterers Corp. (1996, US) 134 L Ed 2d 433, 96 CDOS 2222, 96 Daily Journal
DAR 3716, 70 BNA FEP Cas 486, 67 CCH EPD P 43927, 9 FLW Fed S 526.
ADEA can apply to action brought by lay teacher against his parochial school employer.
Demarco v Holy Cross High Sch. (1993, CA2 NY) 62 BNA FEP Cas 1153.
Foreign company that exercised control over employment decisions made by its
American subsidiary was exempt from ADEA liability because foreign company was not
controlled by American employer (29 USCS 623(h)(2)). Mochelle v J. Walter, Inc.
(1993, MD La) 62 BNA FEP Cas 408.
ADEA, as statute of general applicability, does not apply to Indian tribe employers, since
there is no clear and plain congressional intent that it so apply. EEOC v Fond du Lac
Heavy Equipment & Constr. Co. (1993, CA8 Minn) 61 BNA FEP Cas 105, 60 CCH EPD
42039.
ADEA does not apply to claims against religious institution, which includes Jewish
synagogue. Weissman v Congregation Shaare Emeth (1993, ED Mo) 62 BNA FEP Cas
161.
ADEA plaintiff may show prima facie case of age discrimination by presentation of
statistical evidence that demonstrates pattern and practice of age discrimination.
Langston v Caraway Methodist Hosps. (1993, ND Ala) 63 BNA FEP Cas 524.
There are three means by which ADEA plaintiff may seek to establish prima facie case of
age discrimination: by direct evidence of discriminatory intent, by meeting "McDonnell
Douglas" test (circumstantial evidence), or by statistical proof of pattern of
discrimination. Langston v Caraway Methodist Hosps. (1993, ND Ala) 63 BNA FEP Cas
524.
Discharge of 78-year-old sales representative was actionable under state
age-discrimination law, since statute making exception by not forbidding failure to hire
or promote workers over age 70 did not extend exception to discharge of 70-plus
workers. Catalane v Gilian Instrument Corp. (1994, App Div) 271 NJ Super 476, 638
A2d 1341, certif den (NJ) 642 A2d 1006.
Discharged employee failed to state actionable claim under state age-discrimination
statutes, where employee was replaced by protected- age employee. Lege v N.F. McCall
Crews (1993, La App 3d Cir) 625 So 2d 185, cert den (La) 627 So 2d 638.
Footnotes
Footnote 83. 29 USCS 623(a), 623(e).

Footnote 86. 29 USCS 623(b), (e).
Footnote 87. 29 USCS 623(c)(1)-(2), 623(e).
Annotation: Proving that discharge was because of age, for purposes of Age
Discrimination in Employment Act (29 USCS 621 et seq.), 58 ALR Fed 94.
Construction and application of Age Discrimination in Employment Act of 1967 (29
USCS 621 et seq.), 24 ALR Fed 808.
Practice References Age Discrimination in Employment Action under ADEA. 29
Am Jur Trials 1.
Law Reviews: Employment ArbitrationAge Discrimination in Employment
ActArbitrability of Claims under Age Discrimination in Employment Act Upheld
Pursuant to Arbitration AgreementGilmer v. Interstate/Johnson Lane Corp., 111 S.
Ct. 1647. 22 Seton Hall L. Rev. 540, 1992.
Footnote 92. 29 USCS 631(a) before amendment by P.L. 99-592, 2(c), 6(a).
Footnote 93. P.L. 99-592 7(b).
24 CCH EPD 31218.
Footnote 96. McCann v Chicago (1991, ND Ill) 1991 US Dist LEXIS 83.
Footnote 97. Simpson v Alaska State Com. for Human Rights (1976, DC Alaska) 423 F
Supp 552 (applying Alaska law).
Annotation: Application of state law to age discrimination in employment, 96 ALR3d
195.
For further discussion of such laws, see the Employment Coordinator EP-11,900 et
seq.
169 Government contractors

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Without mentioning a specific age range of coverage, Executive Order 11141 98
declares the federal executive branch's policy that federal contractors and subcontractors
must not discriminate against workers and job applicants in employment practices and
decisions because of age, except on the basis of a bona fide occupational qualification,
retirement plan, or statutory requirement. Furthermore, each federal department and
agency must enunciate this policy, and the Federal Procurement Regulations and the
Armed Services Procurement Regulations must be amended by including a statement
giving continuous notice of the existence of the policy.
The Executive Order does not establish an agency to coordinate the prohibition against
age discrimination, and there are no regulations implementing it. The policy declared in
the Order is stated only in the Armed Services Procurement Regulations, 99 and in the
Federal Procurement Regulations prescribed by the General Services Administration. 1
Footnotes
Practice References Age as bona fide occupational qualification under ADEA. 15
Am Jur POF2d 481.
Footnote 1. 41 CFR 1- 12.1000.
170 Effect of federal law on state laws

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Congress clearly intended to leave room for states to supply consistent age discrimination
legislation when it enacted the Age Discrimination in Employment Age (ADEA). 2
State aspects: State age discrimination prohibitions may be found in state FEP
statutes or enacted as separate employment discrimination laws. Although the latter
approach is more closely analogous to the federal approach, the key consideration
when evaluating preemption issues is the substance, rather than the format of the state
act. 3
The legislative history of the ADEA shows that Congress intended only to establish
"minimum" standards in the ADEA. 4 In fact, the ADEA anticipates and encourages
state regulation of age discrimination. 5 Thus, the interpretation of a state statute as
being age-neutral is consistent with the ADEA's purpose to neutralize age as a factor and
to discourage stereotyped views of the abilities and qualifications of workers of particular
ages. If it is possible for employers to comply with both the federal and state
requirements with respect to age discrimination and make employment decisions on the
basis of qualification rather than age, the case for preemption is weak. 6 As a result, the
ADEA will not preempt state laws that are either broader in scope 7 or in available
remedies 8 than the ADEA. The EEOC has also taken the position that the ADEA does
not pre-empt state age discrimination laws. 9
Following these general principles, the ADEA does not preempt state legislation that:
contains remedies which conflict with the informal voluntary compliance provisions of
the ADEA; 10
requires compulsory retirement of harbor pilots; 11
permits recovery of damages, not available under the ADEA; 12
provides a significantly longer statute of limitations for age claims than that of the
ADEA, since recognition of the longer state limitations imposes no burden on the federal
right, and the continued availability of the state-created remedy promotes the equal
opportunity goal. 13
Observation: While state courts may interpret state age discrimination prohibitions
in conformity with the manner in which similar prohibitions of the ADEA are
interpreted by federal courts, they are not compelled to do so, even when the wording
of the respective provisions is identical, if the state courts conclude that the state
legislature had a different intent from that of the U.S. Congress.
170 ----Effect of federal law on state laws [SUPPLEMENT]
Case authorities:
In wrongful discharge action under state statute and age discrimination action based on
federal Age Discrimination in Employment Act (ADEA), trial court improperly awarded
damages under both state and federal statutes; once affirmative determination of claim
was obtained under ADEA, state statute could no longer be applied. Tonack v Montana
Bank of Billings (1993, Mont) 854 P2d 326.
Footnotes
Footnote 2. Maine Human Rights Com. v Kennebec Water Power Co. (1983, Me) 468
A2d 307, 33 BNA FEP Cas 563, 33 CCH EPD 34230.
Footnote 3. For further discussion of such laws, see the Employment Coordinator
EP-11,900 et seq.
Footnote 5. Hillman v Consumers Power Co. (1979) 90 Mich App 627, 282 NW2d 422,
Footnote 6. Maine Human Rights Com. v Kennebec Water Power Co. (1983, Me) 468
A2d 307, 33 BNA FEP Cas 563, 33 CCH EPD 34230.
Footnote 8. Mason v Midwestern Fidelity Corp. (1984, SD Ohio) 589 F Supp 751, 42
Footnote 10. Hillman v Consumers Power Co. (1979) 90 Mich App 627, 282 NW2d 422,
Footnote 11. Adams v Leatherbury (1980, Ala) 388 So 2d 510, 30 BNA FEP Cas 384, 24
CCH EPD 31454.
Footnote 12. Bailey v Container Corp. of America (1984, SD Ohio) 594 F Supp 629, 41
BNA FEP Cas 386, 35 CCH EPD 34732; Mason v Midwestern Fidelity Corp. (1984,
SD Ohio) 589 F Supp 751, 42 BNA FEP Cas 338, 36 CCH EPD 34994.
Footnote 13. Fisher v Quaker Oats Co. (1989) 233 NJ Super 391, 559 A2d 1.
2. Reasonable Factor Other Than Age Exception [171, 172]
171 Scope of the reasonable factor other than age exception

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The ADEA explicitly allows an employer, employment agency, or labor organization to
take an action otherwise prohibited by the Act if the differentiation is based on
reasonable factors other than age. 14
The EEOC has determined that since this exception is imprecise its applicability must be
decided on a case-by-case basis. 15 However, the agency has concluded that the
exception is unavailable where age is used as a limiting factor in an employment practice.

16
Job performance is a common "reasonable factor other than age" used in making
employment decisions, such as when an employee's position was eliminated, on the basis
of his deteriorating job performance, 17 or when a staff reduction program was carried
out according to an age-neutral performance evaluation procedure. 18
Safety concerns may also qualify for the exception. For example, it was permissible for
an airline employer to discontinue a policy of allowing flight captains to downbid into
flight engineer jobs when it resulted in role confusion that effected flight safety. 19
However, a state statute that discriminates on the basis of age without establishing that
age is a bona fide occupational qualification 20 is not a reasonable factor other than age.
Thus, a school board's decision to change a teacher's employment contract from
"continuing" to "annual" when the teacher reached age 70 could not be justified on the
basis of a state law that had effectively changed full-time tenured teachers over 70 years
of age into at-will employees with year-to-year contracts. 21
171 ----Scope of the reasonable factor other than age exception [SUPPLEMENT]
Practice Aids: Downsizing: Is there an ethical dimension to a partial plant closing? 44
Lab LJ 697 (1993).
Corporate downsizingor age discrimination? 28 Trial 26 (July 1992).
Age discrimination: A trial lawyer's guide for bringing suit, 31 Trial 3:48 (1995).
Case authorities:
There is no "disparate treatment" under the Age Discrimination in Employment Act of
1967 (ADEA) (29 USCS 621 et seq.) when the factor motivating the employer is
some feature other than the employee's age, and, specifically, an employer does not
violate the ADEA just by interfering with an older employee's pension benefits that
would have vested by virtue of the employee's years of serviceas, for example, in a case
where an employer dismissed a 62-year-old employee a few weeks before the employee's
pension would have vested, for the alleged purpose of preventing such vestingbecause
(1) when an employer's decision is wholly motivated by factors other than age, the
problem of inaccurate and stigmatizing stereotypes regarding older employees, which
problem the ADEA was intended to prohibit, disappears even if the motivating factor is
correlated with age, as pension status typically is, and (2) an employee's age is
analytically distinct from the employee's years of service, since, although older
employees on the average have more years of service than younger employees, a
employee who is younger than 40, and who is therefore outside the scope of the ADEA,
may have worked for a particular employer for the employee's entire career while an
older employee may be newly hired; an employer does not necessarily violate the ADEA
whenever the employer's reason for firing an older employee is improper in any respect.
Hazen Paper Co. v Biggins (1993, US) 123 L Ed 2d 338, 113 S Ct 1701, 93 CDOS
2835, 93 Daily Journal DAR 4916, 16 EBC 1881, 61 BNA FEP Cas 793, 61 CCH EPD
42186, 7 FLW Fed S 161, motion den (US) 1993 US LEXIS 3855.
The firing of an older employee, because the employer believes that productivity and
competence decline with age, is age discrimination within the prohibition of the Age
Discrimination in Employment Act of 1967 (ADEA) (29 USCS 621 et seq.); the
ADEA commands that employers are to evaluate older employees on their merits and not
their age, and employers may not rely on age as a proxy for an employee's remaining
characteristics, such as productivity, but must focus on those factors directly. Hazen
FLW Fed S 161, motion den (US) 1993 US LEXIS 3855.
Involuntary retirement of physically-limited police officers who were older than 40, after
six-month period working at desk assignment and according to policy that limits
light-duty work to six months, did not violate state age-discrimination statute, where only
proffered evidence of age discrimination was conclusion that, because light-duty rule
applies only to retirement eligible that is, those with 20 years of service) officers and
applicants must be at least 21, retirement eligible officers subject to separation at end of
six-month light-duty stint would necessarily be at least 41, and where officers were
retired solely due to their physical inability to perform duties of police officer. Matos v
City of Phoenix (1993, App) 176 Ariz 125, 859 P2d 748, 131 Ariz Adv Rep 36, 2 AD
Cas 1458.
A 4 year difference in age between the plaintiff and a worker hired to replace him was
too small to raise an inference of age discrimination so as to establish a prima facie case.
Jacques v Akzo Int'l Salt, Inc. (1993, Super Ct) 619 A2d 748.
In Age Discrimination in Employment Act (29 USCS 621 et seq.) action, question of
whether change in employee's job or working conditions is materially adverse, rather
than essentially neutral, is one of fact, and so can be resolved on summary judgment only
if question is not fairly contestable. Williams v Bristol-Myers Squibb Co. (1996, CA7
Wis) 85 F3d 270, 70 BNA FEP Cas 1639, 68 CCH EPD 44095, reh, en banc, den
(1996, CA7 Wis) 1996 US App LEXIS 15623.
Footnotes
Footnote 14. 29 USCS 623(f)(1).
Footnote 17. Nogar v Henry F. Teichmann, Inc. (1985, WD Pa) 640 F Supp 365, 44 BNA
FEP Cas 441, affd without op (CA3) 800 F2d 1137, 44 BNA FEP Cas 448.
Footnote 18. Duncan v El Paso Products Co. (1985, WD Tex) 45 BNA FEP Cas 227, 40
CCH EPD 36186.
Footnote 19. Iervolino v Delta Air Lines, Inc. (1986, CA11) 796 F2d 1408, 41 BNA FEP
Cas 1017, 41 CCH EPD 36602, cert den 479 US 1090, 94 L Ed 2d 155, 107 S Ct

Footnote 21. EEOC v School Bd. of Pinellas County (1990, MD Fla) 742 F Supp 622, 53
For a discussion of whether economic considerations qualify for this exception, see
172.
172 Effect of economic considerations exception

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The EEOC has determined that the average cost of employing older workers as a group is
not a "reasonable factor other than age." 22
Likewise, the Seventh Circuit has ruled that salary savings that can be realized by
replacing an individual older worker with a younger, lower-paid worker do not constitute
a "reasonable factor other than age." Where an employee's relatively high salary is the
age-based result of annual seniority raises, a desire to save costs is not an age-neutral
reason for his replacement, regardless of the employer's financial performance. 23
Similarly, an employer could not use the exception based on economic considerations
when it demoted several employees in a well qualified group based on their intentions to
retire, 24 or deny severance pay to retirement-eligible employees, because only
employees 55 years or older were eligible for retirement. 25
Nor could an employer use the exception to realize pension savings by discharging an
older employee rather than letting him work until he is eligible for early retirement.
Although the amounts saved may be minimal, they are inextricably linked to an
employee's years of service, and, hence, to age. If anything, pension benefits are more
closely and consistently tied to seniority and age than is pay. 26
However, the ADEA does not prohibit the termination of an employee whose salary is
too high in relationship to what employees having comparable responsibilities in other
companies are earning under contemporaneous market conditions, even if the high salary
is related to age. All the ADEA requires is that the employer's decisions treat each
employee individually, do not impose a general rule that has a disparate impact on older
workers, and are based solely on financial considerations. 27
172 ----Effect of economic considerations exception [SUPPLEMENT]
Case authorities:
If position's salary has been set at level commensurate with certain job responsibilities
and those responsibilities are subsequently diminished, employer may, without violating
ADEA, make corresponding adjustments in positions and salaries regardless of age of
employees involved. DiCola v SwissRe Holding, Inc. (1993, CA2 NY) 996 F2d 30, 62
Footnotes
Footnote 22. 29 CFR 1625.7(f).
Footnote 23. Metz v Transit Mix, Inc. (1987, CA7) 828 F2d 1202, 44 BNA FEP Cas
1339, 44 CCH EPD 37458.
Law Reviews: Civil Rights/Age Discrimination/Reasonable Factor Other Than
AgeThe Replacement of an Older Employee With a Younger, Lower-Salaried
Employee in Order to Cut Costs Does Not Constitute a "Reasonable Factor Other Than
Age" Under the Federal Age Discrimination in Employment Act. Metz v Transit Mix,
828 F2d 1202. 76 Ill B J 570 (1988).
Footnote 24. EEOC v Community Unit School Dist. (1986, SD Ill) 642 F Supp 902, 43
Footnote 25. EEOC v Borden's, Inc. (1984, CA9) 724 F2d 1390, 5 EBC 1122, 33 BNA
FEP Cas 1708, 33 CCH EPD 34140.
Footnote 26. White v Westinghouse Electric Co. (1988, CA3) 862 F2d 56, 48 BNA FEP
Cas 597, 48 CCH EPD 38505.
Annotation: "Bona fide employee benefit plan" exception to general prohibition of age
discrimination in employment (29 USCS 623(f)(2)), 70 ALR Fed 110.
Footnote 27. Bay v Times Mirror Magazines, Inc. (1991, CA2) 936 F2d 112, 56 BNA
F. Disability [173-227]
Research References
2 USCS 1202, 1219, 1220; 15 USCS 3151; 20 USCS 1400 et seq.; 29 USCS
706, 791, 793, 794a, 794, 1577; 38 USCS 2011, 4212; 42 USCS 1983, 5057,
6005, 12111, 12112, 12113, 12135, 12201, 12208, 12210, 12211
28 CFR Parts 41, 42; 29 CFR Parts 1613, 1614, 1630; 41 CFR Parts 60-250, 60-741;
45 CFR Parts 84, 1151; 49 CFR Part 27
12 Federal Procedural Forms, L Ed, Job Discrimination 45:352, 45:354, 45:355
5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Forms 151, 152
Modjeska, Employment Discrimination Law 2d, 6:1 et seq.
1. In General [173-175]
173 Generally
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Go to Supplement
Discrimination against workers with disabilities is regulated by the Americans with
Disabilities Act (ADA), the Rehabilitation Act of 1973, the Vietnam-Era Veterans
Readjustment Assistance Act of 1974 (VEVRA), the Government Employee Rights Act
1991, various other statutes prohibiting discrimination on federally assisted programs,
and a substantial number of state statutes. 28 The ADA regulates the conduct of public
and private employers, labor organizations, employment agencies, and joint labormanagement committees, on various effective dates. 29
The Rehabilitation Act of 1973 relates exclusively to government contractors, recipients
of federal aid and federal employees. 30
The Government Employee Rights Act of 1991 regulates the conduct of the Senate, the
Executive Branch, and elected state and local officials. 31
Coverage under all of these laws 32 and affirmative action responsibilities 33 under
the Rehabilitation Act and VEVRA are discussed elsewhere.
Regulations:
In 1994, the Equal Employment Opportunity Commission promulgated (29 CFR
1640.1 et seq.), involving procedures for coordinating the investigation of complaints or
charges of employment discrimination based on disability subject to the Americans with
Disabilities Act and Section 504 of the Rehabilitation Act of 1973. The corresponding
rules promulgated by the Department of Justice are (28 CFR 37.1 et seq.).
Case authorities:
Since 504 of Rehabilitation Act (29 USCS 794) prohibits discrimination based on
severity of disability, action by residents of institution for mentally retarded individuals
which alleged that institution violated 504 by failing to consider certain severely
handicapped residents for community placement stated claim upon which relief can be
granted. Messier v Southbury Training Sch. (1996, DC Conn) 916 F Supp 133, 15 ADD
522.
Section 504 of Rehabilitation Act (29 USCS 794) cannot be used to advance claims of
discriminatory distribution of services among persons with disabilitites; accordingly,
plaintiff who was unable to drive due to severity of his disability failed to state cause of
action under 504 where he alleged that state discriminated against him on basis of his
disability when it denied him full reimbursement for necessary modifications to his van,
while greater reimbursements for modifications were allowed for disabled individuals
who were able to drive. Flight v Gloeckler (1995, ND NY) 878 F Supp 424, 10 ADD
380, 4 AD Cas 279.
Employment discrimination case is closed due to postal employee's failure to pursue
administrative remedies in timely fashion, where action within 30 days of alleged August
9, 1990 violation was required by 29 CFR 1613.214(a)(1)(i), yet EEOC was not
contacted until December 12, 1991, because employee has provided no explanation for
delay approximately 16 times length of applicable time limit, nor has there been any
attempt to show that information about applicable deadline was not widely known and
readily available by consulting any equal opportunity counsellor or any one of numerous
advocacy agencies. Wojik v Postmaster General (1993, SD NY) 814 F Supp 8, 2 ADD
328, 2 AD Cas 1163.
For purposes of determining whether defendant facility violated 504 of Rehabilitation
Act (29 USCS 794) by refusing to admit disabled plaintiff, it does not matter why
plaintiff sought access to facility or even if plaintiff sought access because of her
disability; court's only concern is why plaintiff was denied access. Wagner v Fair Acres
Geriatric Ctr. (1995, CA3 Pa) 49 F3d 1002, 9 ADD 602.
Mentally retarded sewing machine operator's claim under 29 USCS 722 must fail, even
if rehabilitation counselor did not follow procedure outlined in 722(a), (b), and (d),
which resulted in delay in operator's federal certification and re-employment with
Defense Supply Agency, because inclusion of administrative process and noticeable
absence of civil action remedy in statute leads to conclusion that there is no private right
of action under 722. Johnson-Lloyd v Vocational Rehabilitation Office, Pa. Dep't of
Labor & Indus. (1993, ED Pa) 813 F Supp 1120, 25 FR Serv 3d 927, complaint dismd
(ED Pa) 2 ADD 781.
Rehabilitation Act (29 USCS 794) requires claimant to demonstrate that discharge was
solely by reason of her disability, and therefore summary judgment was properly granted
for employer in employee's action alleging handicap discrimination where employer
produced evidence supporting legitimate, nondiscriminatory reason for discharge, and
employee failed to present sufficient evidence to rebut employer's assertions and to
establish jury question on issue of whether employee was discharged solely because of
her handicap. Hughes v Bedsole (1995, CA4 NC) 48 F3d 1376, 9 ADD 583, 4 AD Cas
There is no significant distinction between the term "qualified handicapped person" in
ALM GL ch 151B and the term "otherwise qualified individual with handicaps" in 29
USCS 794 and, therefore, federal cases involving the federal statute are helpful in the
resolution of issues pertaining to employment discrimination against qualified
handicapped persons. Cox v New England Tel. & Tel. Co. (1993) 414 Mass 375, 607
NE2d 1035, 2 AD Cas 540.
Handicap discrimination is not actionable under Title VII. President v Illinois Bell Tel.
Co. (1994, ND Ill) 6 ADD 919, 3 AD Cas 1218, 147 BNA LRRM 2626.
Plaintiff in employment discrimination action must prove that employer intentionally
discriminated against him on basis of his disability by showing that he belonged to
protected class, that he was qualified for his job, that he suffered adverse employment
action, and that he was treated differently from similarly situated employees, and bare
allegations of discrimination are insufficient to counter substantial evidence of legitimate
nondiscriminatory reasons for adverse employment action without evidence that

employer acted on basis on employee's disability. Schaff v Shalala (1994, DC Md) 6
ADD 196, 3 AD Cas 770.
Rehabilitation Act (29 USCS 794) does not prevent employers from discharging
disabled workers; it only prevents employers from discharging disabled workers because
of their disability; consequently, where employee presented no evidence that incident
which directly resulted in her discharge was effect of or manifestation of her alcoholism,
summary judgment was granted for employer. Warren v Runyon (1995, ND Ill) 10 ADD
223.
Section 504 of Rehabilitation Act (29 USCS 794) does not bar termination of
employee with disability or other disciplinary proceedings against such employee, where
employee has engaged in workplace misconduct, even if misconduct is caused by
qualifying disability, given that relevant question in 504 employment discrimination
cases is whether adverse action was taken solely by reason of employee's disability.
Carrozza v Howard County (1994, DC Md) 4 ADD 842.
Under 504 of Rehabilitation Act (29 USCS 794), plaintiff must show that (1) she is
individual with disability; (2) she is otherwise qualified; (3) she was excluded from
program solely because of her disability; and (4) program from which plaintiff was
excluded was conducted by entity receiving federal funds. Szymanska v Abbott Lab.
(1994, ND Ill) 4 ADD 895.
Unlike 29 USCS 791, 29 USCS 794 reaches employer's treatment of employee
outside workplace, during times when he cannot work at all, such as when he is eligible
for benefits under Federal Employees Compensation Act (5 USCS 8101 et seq.).
Taylor v Secretary of Navy (1994, ED Pa) 5 ADD 629, 3 AD Cas 497.
Footnotes
Footnote 28.
State Aspects State statutes dealing with discrimination against workers with
disabilities are noted and discussed in the Employment Coordinator EP- 12,100 et
seq.
Forms: ComplaintTo administrative agencyDiscrimination in
employmentAllegationDenial of position on the basis of physical handicap. 5A Am
Jur Pl & Pr Forms (Rev), Civil Rights, Form 151.
Complaint, petition, or declarationDiscrimination in employment based on physical
handicap. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form 152.
Footnote 29. As to the effective dates of ADA provisions, see 204.
Footnote 31. 175.
174 Disability discrimination under the early civil rights acts

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As part of the early civil rights acts, civil liability is imposed on a state or local
government official acting "under color of law," who deprives any person of rights,
privileges or immunities secured by the Constitution or laws. 34 Courts have permitted
claims of disability discrimination against public officials to be brought under 1983,
since the Rehabilitation Act is not the exclusive remedy for disability discrimination.
Such 1983 claims have been allowed when they were based on an alleged violation of
the equal protection clause, 35 or on a violation of the Rehabilitation Act itself. 36
However, to assert a 1983 claim based on the Rehabilitation Act, the disability
discrimination claim must be viable. Thus, where a claim under 504 had been
dismissed because the employer was not a covered recipient of federal financial
assistance, the plaintiff could not avoid 504's requirements by pleading the same cause
of action under 1983. 37
Disability discrimination is not prohibited by 42 USCS 1981, which is limited to
addressing claims of race discrimination. It has been held both that disability
discrimination is not prohibited by 42 USCS 1985(3), 38 and that persons with
disabilities are a class protected by 1985(3). They traditionally have been victimized
by disabling laws and barriers, and they share an immutable characteristic carrying a
stigma of inferiority. Before enactment of Section 504 of the Rehabilitation Act of 1973
39 they lacked the political power to significantly better their position. 40
174 ----Disability discrimination under the early civil rights acts [SUPPLEMENT]
Practice Aids: State or local noncriminal provisions concerning or affecting persons
with mental disabilities as violating equal protection clause of Federal Constitution's
Fourteenth AmendmentSupreme Court cases. 125 L ED 2nd 863.
Footnotes
Footnote 35. Shuttleworth v Broward County (1986, SD Fla) 639 F Supp 654, 41 BNA
Footnote 36. Cordero-Martinez v Aponte-Roque (1988, DC Puerto Rico) 685 F Supp
314, 46 BNA FEP Cas 1765.
Footnote 37. De Vargas v Mason & Hangar-Silas Mason Co. (1986, DC NM) 40 BNA
FEP Cas 1803, 42 CCH EPD 36896, revd on other grounds (CA10) 844 F2d 714, 46
CCH EPD 37902.
As to the provisions of 504, generally, see 181.
Footnote 38. Third CircuitMoreno v Commonwealth, Dept. of Public Welfare (1990,
ED Pa) 1990 US Dist LEXIS 18606.
Seventh CircuitD'Amato v Wisconsin Gas Co. (1985, CA7) 760 F2d 1474, 37 BNA
FEP Cas 1092, 119 BNA LRRM 2325, 36 CCH EPD 35159.
Tenth CircuitCain v Kansas City (1981, DC Kan) 508 F Supp 1021, 25 BNA FEP Cas
588, 26 CCH EPD 31934.
Eleventh CircuitCorkery v SuperX Drugs Corp. (1985, MD Fla) 602 F Supp 42, 36
Footnote 39. 181.
Footnote 40. Tyus v Ohio Dept. of Youth Services (1985, SD Ohio) 606 F Supp 239, 38
175 Disability discrimination under Government Employee Rights Act

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The Government Employee Rights Act of 1991 mandates that the prohibitions against
employment discrimination based on disability under 501 of the Rehabilitation Act of
1973 41 and the ADA 42 apply to all personnel actions affecting employees of the
Senate, 43 presidential appointees, 44 and employees of elected state or local officials.
45
175 ----Disability discrimination under Government Employee Rights Act
[SUPPLEMENT]
Statutes:
Footnotes
Footnote 41. 179.

2. Disability Discrimination Provisions Applicable to Federal Contractors, Federal
Employers, and Recipients of Federal Funds [176-203]
a. Provisions Affecting Particular Employers [176- 183]
(1). Contractors [176-178]
176 Section 503 of the Rehabilitation Act

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Government contractors and subcontractors must take affirmative action to employ and
advance in employment qualified individuals with disabilities. 46 This means that
contractors are prohibited from discriminating against individuals on the basis of
disability. 47
176 ----Section 503 of the Rehabilitation Act [SUPPLEMENT]
Practice Aids: When must specialized equipment or other workplace modifications be
provided to qualified disabled employee or applicant as reasonable accommodation.
125 ALR Fed 629.
Regulations:

Case authorities:
Complaint failed to state claim under 504 of Rehabilitation Act (29 USCS 794) in
action by terminated employee with disability, where complaint alleged simply that
former employer and certain co-workers had failed to reasonably accommodate employee
in violation of Act, did not allege that employer received federal financial assistance, and
stated only vaguest assertions regarding defendants' alleged discriminatory acts.
Armstead v Becton Dickinson Primary Care Diagnostics (1996, DC Md) 919 F Supp 188,
15 ADD 227.
Environmental Protection Agency cannot ignore Rehabilitation Act's mandate prohibiting
discrimination against handicapped employees on basis of workplace inaccessibility
simply because General Services Administration, not EPA, has authority to operate and
manage public buildings and make any necessary modifications. Thurber v Browner
(1994, ND Ill) 6 ADD 81.
Footnotes
Footnote 47. 41 CFR 60-741.4.
Practice References Modjeska, Employment Discrimination Law 2d, 6:2, 6:3.
177 Section 402 of the Vietnam-Era Veterans Readjustment Assistance Act

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Section 402 of the Vietnam-Era Veterans Readjustment Assistance Act of Section 1974
(VEVRA) requires federal contractors and subcontractors to take affirmative action to
employ and advance in employment qualified special disabled veterans, 48 and includes
a prohibition forbidding discrimination against qualified special disabled veterans. 49
Footnotes
Footnote 49. As to who is a qualified special disabled veteran, see 178.
178 Who is a qualified special disabled veteran

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A special disabled veteran under 402 of VEVRA 50 is a veteran who is entitled to
compensation under laws administered by the Veterans' Administration for a disability
rated at 30% or more, or a person who is discharged or released from active duty because
of a service-connected disability. 51
A "qualified special disabled veteran" is a special disabled veteran who is capable of
performing a particular job with a reasonable accommodation to his disability. 52
The definition of "qualified" under VEVRA is the same as the definition of "qualified"
under 503 of the Rehabilitation Act. 53
178 ----Who is a qualified special disabled veteran [SUPPLEMENT]
Regulations:
In its 1995 form, (41 CFR 60-250.2) defines "qualified disabled veteran," but not
"qualified special disabled veteran."
Footnotes
Footnote 50. 177.
Footnote 52. 41 CFR 60-250.2.
Footnote 53. As to 503 of the Rehabilitation Act, see 176.

(2). Federal Employers [179 180]
179 Generally
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Under 501 of the Rehabilitation Act, every federal department, agency, and
instrumentality, including the U.S. Postal Service, must implement an affirmative action
plan for the hiring, placement, and advancement of individuals with disabilities. 54
This obligation includes a prohibition against discriminating on the basis of disability. 55
Furthermore, the federal government is to be a model employer of the disabled. 56
The prohibition on disability discrimination under any program or activity conducted by
any executive agency in 504 of the Rehabilitation Act also applies to federal
employers. 57
Statutes:
Regulations:
Case authorities:
Fact that defendants' broadcasts are licensed by FCC does not put that broadcast under
control of FCC within meaning of statute; therefore, plaintiffs have failed to state claim
for violation of 504 of Rehabilitation Act (29 USCS 794) by alleging that National
Football League's local blackout rule discriminated against hearing impaired individuals
who could not simply listen to radio broadcast of game when television broadcast was
blacked out. Stoutenborough v National Football League (1994, ND Ohio) 7 ADD 328,
3 AD Cas 537.
Federal employee with mental disability who participated in health plan administered
pursuant to Federal Employees Health Benefit Act (5 USCS 8901 et seq.) was not
discriminated against on basis of her disability simply because health plan provided less
coverage for treatment of mental illnesses that for treatment of physical illnesses.
Modderno v King (1994, DC Dist Col) 7 ADD 742.
Section 504 of Rehabilitation Act (29 USCS 794), as implemented by 32 CFR
56.8(a)(6), requires Department of Defense components to administer their Federal
Employees Compensation Act (FECA) (5 USCS 8101 et seq.) programs to accomplish
objectives of FECA with respect to persons with disabilities with job-related injuries.
Footnotes
Footnote 55. 29 CFR 1613.701, 1613.703.
Practice References Modjeska, Employment Discrimination Law 2d, 6:11.
Footnote 56. 29 CFR 1613.703.
Footnote 57. 180.
180 Application of Title VII exceptions to federal employment

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Since 505 of the Rehabilitation Act 58 incorporates the remedies, procedures, and
rights set forth in Title VII, 59 with respect to disability discrimination concerning
federal employees, some courts have found that the exception provisions in Title VII
have also been incorporated in federal employment situations. For example, when a
disabled person's rights conflicted with a veteran's preference requirements, the Seventh
Circuit concluded that 505 incorporated Title VII's provision that made it lawful to
adhere to laws creating a veteran's preference 60 and dismissed the disability claim. 61
Likewise, Title VII's seniority system exception 62 has also been found applicable to the
Rehabilitation Act, through the operation of 505 in a federal employment situation. 63
For a discussion of the specific effect of collective bargaining on the duty to provide a
reasonable accommodation 64
Footnotes
Footnote 59. As to remedies, procedures, and rights under Title VII, see 1 et seq.
Footnote 60. 292.
Footnote 61. Skillern v Bolger (1984, CA7) 725 F2d 1121, 33 BNA FEP Cas 1484, 33
Cas 1608, 35 CCH EPD 34663.
Footnote 62. 710.
Footnote 63. Hurst v United States Postal Service (1986, ND Ga) 653 F Supp 259, 43
Footnote 64. As to what is a reasonable accommodation under the Rehabilitation
Act[R*AC, see 046].
(3). Recipients of Federal Funds [181-183]
181 Section 504 of the Rehabilitation Act of 1973

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No otherwise qualified individual with disabilities 65 may, solely by reason of his
disability, be excluded from participation in, denied the benefits of, or subjected to
discrimination under any program or activity receiving federal financial assistance, or
under any program or activity conducted by either an executive agency of the federal
government or the U.S. Postal Service. 66
The prohibition against discrimination applies to all terms, conditions, or privileges of
employment. 67 Moreover, a recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped applicants or
employees to prohibited discrimination. These relationships include those with
employment and referral agencies, labor unions, organizations providing or administering
fringe benefits to the recipient's employees, and organizations providing training and
apprenticeship programs. 68
However, a federal agency's requirement that all employees, with or without disabilities,
meet specified criteria to gain access to a benefit policy, or its refusal to waive that
requirement for disabled employees, does not violate 504. 69

181 ----Section 504 of the Rehabilitation Act of 1973 [SUPPLEMENT]
125 ALR Fed 629.
Regulations:
In 1994, the Equal Employment Opportunity Commission promulgated (29 CFR
1640.1 et seq.), involving procedures for coordinating the investigation of complaints or
charges of employment discrimination based on disability subject to the Americans with
Disabilities Act and Section 504 of the Rehabilitation Act of 1973. The corresponding
rules promulgated by the Department of Justice are (28 CFR 37.1 et seq.).
Case authorities:
City transit authority employee who alleged discriminatory acts by her employer due to
her disability cannot state claim under Rehabilitation Act (29 USCS 794) where none
of defendants qualified as programs receiving federal financial assistance. Julian v New
York City Transit Auth. (1994, ED NY) 857 F Supp 242, 6 ADD 350, 3 AD Cas 791.
Primary care physician in managed healthcare system who receives federal funds to
provide healthcare benefits may not withhold medical benefits, without reasonable
accommodation, solely based on participant's disability, but may act pursuant to bona
fide medical reason. Woolfolk v Duncan (1995, ED Pa) 872 F Supp 1381, 8 ADD 131.
Bank's termination of alcoholic employee cannot give rise to handicap discrimination
claim under 29 USCS 794, even though bank participates in guaranteed loan program
sponsored by federal SBA, because 794 expressly applies only to programs and
activities which receive "federal financial assistance" and bank's participation in loan
program does not qualify. McCulloch v Branch Banking & Trust Co. (1993, ED NC) 844
F Supp 258, 2 AD Cas 1337, 63 CCH EPD 42667, 3 ADD 1149.
Section 504 of Rehabilitation Act (29 USCS 794) does not apply to health insurance
association which has entered into government procurement contract with U.S. Office of
Personnel Management (OPM) to provide benefits to federal employees, because when
such contract is involved, 504 governs only OPM, as contracting agency, and not
contractor. Dodd v Blue Cross & Blue Shield Ass'n (1993, ED Va) 835 F Supp 888, 4
ADD 1319, 17 EBC 1905, 63 CCH EPD 42790.
Section 504 of Rehabilitation Act (29 USCS 794) does not require recipients of federal
funding to undertake affirmative actionthat is, to make changes, adjustments, or
modifications to existing programs that would be substantial or that would constitute
fundamental alterations in nature of programs; however, grantee may be required to make
reasonable modifications in its program to accommodate individuals with disabilities.
Conner v Branstad (1993, SD Iowa) 839 F Supp 1346, 43 Soc Sec Rep Serv 307, 4 ADD
1291.
State high school athletic association is "federally-assisted program" with meaning of

Rehabilitation Act (29 USCS 794), although it is not direct recipient of federal
funding, as it receives federal funds indirectly through its member schools, most of which
are direct recipients of federal funding and which delegate to association portion of their
responsibilities for regulation of interscholastic activities. Pottgen v Missouri State High
Sch. Activities Ass'n (1994, ED Mo) 857 F Supp 654, 6 ADD 756, 3 AD Cas 364, revd,
remanded (1994, CA8 Mo) 1994 US App LEXIS 32275.
For purposes of Rehabilitation Act coverage, labor union does not receive federal
financial assistance when it is certified as exclusive bargaining representative by National
Labor Relations Board. Herman v United Bhd. of Carpenters & Joiners, Local Union No.
971 (1995, CA9 Nev) 95 CDOS 4729, 95 Daily Journal DAR 8135, 4 AD Cas 907, 68
BNA FEP Cas 181, 149 BNA LRRM 2648, 130 CCH LC 11353.
Investigator employed by state division of alcoholic beverages and tobacco (ABT)
satisfied jurisdictional requirement of 29 USCS 794 in action arising out of his
demotion because of work-related injury, where he alleged that ABT officers received
training from DEA, FBI, and Department of Treasury and agreed to comply with
Rehabilitation Act as quid pro quo for receipt of training, because agency received
federal financial assistance and thus came within scope of Act. Delmonte v Department
of Business & Professional Regulation, Div. of Alcoholic Beverages & Tobacco of Fla.
(1995, SD Fla) 877 F Supp 1563.
Because U.S. Department of Education's Office for Civil Rights uses Uniform Federal
Accessibility Standards or American National Standards Institute standards only as guide
in determining compliance for "existing facilities" under regulations implementing 504
of Rehabilitation Act (29 USCS 794), departures from particular requirements of these
standards are permitted for such facilities when recipient's programs and activities are
accessible to persons with disabilities either because (1) another standard which provided
similar access was used, or (2) programs and activities are relocated, as needed, to
accessible locations. In re Whitman-Hanson Regional Sch. Dist. (1993, Dept of
Education) 4 ADD 399.
For purposes of 504 of Rehabilitation Act (29 USCS 794), otherwise qualified
person is one who, with reasonable accommodation, can perform essential functions of
position in question without endangering health and safety of individual or others. Wood
v Omaha Sch. Dist. (1994, CA8 Neb) 5 ADD 452, 3 AD Cas 481.
In action by diabetic police officer employed by railroad, alleging that railroad violated
504 of Rehabilitation Act (29 USCS 794) by failing to reasonably accommodate his
disability, railroad's motion to dismiss on grounds that it does not receive any federal
financial assistance is denied where plaintiff specifically alleged that railroad continues
to receive direct funds and grants from federal government to assist it in its operations,
and railroad has come forward with no evidence specifically rebutting plaintiff's claims.
Degutis v Consolidated Rail Corp. (1994, ND Ill) 6 ADD 1086, 3 AD Cas 1190, 147
BNA LRRM 2470.
Private employer that receives federal funds through Federal Emergency Management
Agency to repair damage caused by hurricanes and heavy rains is subject to provisions of
504 of Rehabilitation Act (29 USCS 794). Rivera-Flores v Puerto Rico Tel. Co.
(1993, DC Puerto Rico) 4 ADD 267, 2 AD Cas 1611.
Private right of action exists under 504 of Rehabilitation Act (29 USCS 794).
Pandazides v Virginia Bd. of Educ. (1994, CA4 Va) 4 ADD 111, 2 AD Cas 1711, 63
CCH EPD 42782.
To meet definition of "receiving Federal financial assistance" under 504 of
Rehabilitation Act (29 USCS 794), employer must be qualified and approved for
receipt of federal financial assistance, and this includes qualified applicant approved to
receive such funds who is awaiting receipt of them; thus, private employer that is either
receiving or expecting to receive federal financial assistance throughout period pertinent
to employee's claim of discrimination on basis of disability is subject to 504 for that
period of time. Rivera-Flores v Puerto Rico Tel. Co. (1993, DC Puerto Rico) 4 ADD
267, 2 AD Cas 1611.
Hospital was entitled to dismissal of claims against it under 504 (29 USCS 794),
which had been brought by respiratory therapy technician employed by company which
had contracted to provide services at hospital, because technician's specific allegations of
disability discrimination, which concerned actions on part of company, could not support
cause of action for disability discrimination against hospital, even though hospital
allegedly exercised significant control over company's services. McNeair v Breslin
(1996, DC Dist Col) 16 ADD 31.
Footnotes
Footnote 65. 192-196.
ComplaintBy individual teacher against municipal authorities receiving federal
financial assistanceFor injunctive and declaratory relief, damages, and attorneys'
feesAlleging discrimination on basis of physical handicap (AIDS) [US Constitution
Amendments 1, 14; 28 USCS 1331, 1343, 2201, 2201,; 29 USCS 706, 794,
794a; 42 USCS 1983, 1988]. 12 Federal Procedural Forms, L Ed, Job
Discrimination 45:352.
Allegation in complaint, with prayer for reliefBy teacher against municipal authorities
receiving federal financial assistanceFor damages, and attorneys' feesAlleging
discrimination on basis of physical handicapPlaintiff unable to perform assigned
duties [45 CFR 84.11; 20 USCS 1405; 29 USCS 794; 42 USCS 1983]. 12
Federal Procedural Forms, L Ed, Job Discrimination 45:354.
Footnote 68. 28 CFR 41.52(d).

Footnote 69. McWright v Alexander (1991, ND Ill) 771 F Supp 256, 56 BNA FEP Cas
1243, 57 CCH EPD 41147.
182 Effect of state statutes on Rehabilitation Act

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Section 504 remedies supplement, and are not limited by, remedies that a state workers'
compensation act provides for injured employees. 70
Regulations implementing 504 of the Rehabilitation Act provide that a recipient's
obligation to comply with handicap discrimination prohibitions is not affected by the
existence of a state or local law or other requirement that, on the basis of handicap,
imposes prohibitions or limitations on the eligibility of qualified handicapped persons 71
to practice in the occupation or profession. 72
Thus, an applicant for a position as a
school bus driver was "otherwise qualified" under 504, despite his automatic
disqualification under a state regulation that prohibited insulin-dependent diabetics from
operating school buses, regardless of their ability to drive safely. The applicant had
never missed work or been hospitalized because of his diabetes, and an examining
physician indicated that he had no condition that affected his ability to operate a school
bus safely. Furthermore, no evidence was offered to demonstrate that he was not
"otherwise qualified." 73
State aspects: Given the lack of comprehensiveness of federal regulations of

handicap discrimination, as well as Congress' failure to specifically indicate that the
Rehabilitation Act of 1973 preempts state handicap discrimination prohibitions, it
seems clear that federal and state laws are intended to exist side by side.
182 ----Effect of state statutes on Rehabilitation Act [SUPPLEMENT]
125 ALR Fed 629.
Footnotes
Footnote 70. Smith v Lake City Nursing Home (1991, DC Minn) 771 F Supp 985, 56
BNA FEP Cas 1350, 6 BNA IER Cas 1598.
Footnote 71. As to who is qualified, see 192.
Footnote 72. 45 CFR 84.10 (Department of Health and Human Services), 45 CFR
1151.5, 1151.315(e), (National Foundation on the Arts and Humanities), 49 CFR
27.17 (Department of Transportation).
Footnote 73. Jackson v State (1988, Me) 544 A2d 291, 47 BNA FEP Cas 395, 47 CCH
EPD 38282.
183 Other laws prohibiting handicap discrimination by federal fund recipients

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Several federal statutes forbid handicap discrimination in a variety of particular federally
assisted programs. These include:
the Developmental Disabilities Assistance and Bill of Rights Act; 74
the Omnibus Budget Reconciliation Act of 1981; 76
the Full Employment and Balanced Growth Act of 1978; 77
the Domestic Volunteer Service Act of 1973. 78
183 ----Other laws prohibiting handicap discrimination by federal fund recipients
[SUPPLEMENT]
125 ALR Fed 629.
Statutes:
The Developmental Disabilities Assistance and Bill of Rights Act was amended in 1994
(PL 103-230) to modify certain provisions relating to programs for individuals with
developmental disabilities, federal assistance for priority area activities for individuals
with developmental disabilities, protection and advocacy of individual rights, and
university-affiliated programs.
Footnotes

Footnote 76. P.L. 97-35, 95 Stat. 357, 654, 655, 677, 901, 2192, 2606.
b. Persons Protected Against Discrimination [184- 196]
(1). Requirement of Disability [184-191]
184 Who are considered individuals with disabilities

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For purposes of the Rehabilitation Act, an individual with disabilities is any person who
(1) has a physical or mental impairment 79 which substantially limits one or more of
such person's major life activities, 80 (2) has a record of such an impairment, 81 or (3)
is regarded as having such an impairment. 82
The Rehabilitation Act's treatment of alcohol and drug abusers as individuals with
disabilities is specifically discussed at 191.
Observation: To a large extent, the criteria for determining who is a qualified 83

individual with disabilities are the same under 501, 503, and 504. Thus, most
cases that define who is protected under the Rehabilitation Act apply to all three
sections of the act. If, in the following discussion, a case applies to only one section of
the act, it will be identified as such. In the absence of such an identification, a holding
may be regarded as applicable to all of the above sections of the Act.
Determinations of whether an employee is disabled must be conducted on an
individualized basis and may not dwell on an abstract view of the impairment. 84
184 ----Who are considered individuals with disabilities [SUPPLEMENT]
Statutes:
29 USCS 706 was repealed in 1994.
Case authorities:
Trainee fails to state claim under 29 USCS 794, even though he is substantially limited
in seeing, driving, and working due to vision problems, because trainee is not "person
with disability" since his visual acuity does not substantially limit his ability to work or
even his ability to work in his chosen field of law enforcement, but only forecloses
employment as Connecticut State Police Trooper Trainee. Venclauskas v Connecticut,
Dep't of Pub. Safety Div. of State Police (1995, DC Conn) 921 F Supp 78, 13 ADD 533.
Rejected police officer candidate has Rehabilitation Act (29 USCS 701 et seq.) claim
dismissed as matter of law, where he claims that rejection was based on his
nearsightedness, because applicant was not handicapped or disabled person within
meaning of 706(8)(B) since he was not impaired in way that substantially limits major
life activity. Joyce v Suffolk County (1996, ED NY) 911 F Supp 92, 14 ADD 1102.
Plaintiff's medical diagnosis of epicondylitis or "tennis elbow" was insufficient to
establish that her condition rendered her legally handicapped under Rehabilitation Act
(29 USCS 701 et seq.) where plaintiff made no showing that her condition
substantially limited any major life activity or constituted significant barrier to
employment for her. Hughes v Bedsole (1995, CA4 NC) 48 F3d 1376, 9 ADD 583, 4
AD Cas 173, 67 BNA FEP Cas 440, 66 CCH EPD 43518.
Laboratory technician, who alleges that she was fired from her job because she was
handicapped by arthritis in her thumbs, is not handicapped individual within meaning of
29 USCS 794(a), because although thumb arthritis impaired technician's ability to
perform laboratory work requiring high degree of manual dexterity, it did not render her
unable to perform other work, and did not substantially limit major life activities, where
she could still drive, had unimpaired mobility, had difficulty with some chores, but could
engage in normal activities. Buko v American Medical Lab. (1993, ED Va) 830 F Supp
899, 3 ADD 697, 2 AD Cas 1305.
Substantial equivalency of definition of disability under Rehabilitation Act and
Americans with Disabilities Act (42 USCS 12101 et seq.) strongly suggests that prior
constructions of Rehabilitation Act should be generally applicable in construing latter
Act's definition of disability. Dutcher v Ingalls Shipbuilding (1995, CA5 Miss) 53 F3d
723, 4 AD Cas 802.
Terminated hospital employee's 29 USCS 794 claim is denied summarily for failure on
threshold question, where no evidence suggests that employee was not readily able on his
own to cope with his sarcoidosis at work and at play, or that his supervisors considered
him handicapped by his condition, because employee does not qualify as 29 USCS
706(8) "individual with handicaps" since his physical impairment is not such that it
results in substantial limitation of one or more major life activities. Walker v
Aberdeen-Monroe County Hosp. (1993, ND Miss) 838 F Supp 285, 3 ADD 957, 2 AD
Cas 1643, 63 CCH EPD 42851.
National Guard technician's disability-discrimination claim under 29 USCS 794 must
fail, even if he could get around preclusive effect of military nature of his employment,
because pilot whose only limitation is inability to maintain flight status due to grand mal
seizure and cardiac arrhythmia does not have impairment which substantially limits
major life activities. Leistiko v Secretary of the Army (1996, ND Ohio) 922 F Supp 66,
15 ADD 1059, 152 BNA LRRM 2101.
Nothing in language of 504 of Rehabilitation Act (29 USCS 794) suggests that 504
can never apply between persons with different disabilities; instead, relevant inquiry is
whether application of 504 between persons with different or varying degrees of
disability furthers goal of eliminating disability-based discrimination by programs or
activities which receive federal financial assistance. Martin v Voinovich (1993, SD Ohio)
840 F Supp 1175, 43 Soc Sec Rep Serv 409, 4 ADD 1240.
For purposes of determining who is individual with disability, no distinction is to be
drawn between those persons in whom HIV virus has developed into AIDS and those
persons who have remained asymptomatic, because it is possible transmission of virus to
others that is basis of individual's disability. Gates v Rowland (1994, CA9 Cal) 39 F3d
1439, 94 CDOS 8459, 94 Daily Journal DAR 15652, 7 ADD 1.
Protection of Rehabilitation Act (29 USCS 701 et seq.) extends only to those
individuals whose disabilities constitute significant barrier to employment or
significantly decrease their ability to obtain satisfactory employment; accordingly, where
uncontroverted evidence indicated that plaintiff police sergeant's physical deformities
involving her feet and spine did not substantially limit her ability to work, plaintiff was
not disabled within meaning of Act. Lawrence v Metro-Dade Police Dep't (1993, SD Fla)
872 F Supp 950, 9 ADD 392, 3 AD Cas 1396.
Federal police officer states no valid claim under Rehabilitation Act (29 USCS 701
et. seq.), where officer was temporarily passed over for promotion to sergeant while
recuperating from on-job back injury, because Act was never intended to extend to
persons suffering from temporary conditions or injuries, so that officer forced to take
only limited duty for year of recuperation was not "handicapped" within meaning of 29
USCS 706(8)(B)(i). Paegle v Department of Interior (1993, DC Dist Col) 813 F Supp
61, 1 ADD 602, 2 AD Cas 482, 61 CCH EPD 42209.
Employee with anemia did not qualify as individual with handicap under Rehabilitation
Act (29 USCS 791 et seq.) since her condition did not substantially limit one or more
of her major life activities. Castle v Bentsen (1994, DC Dist Col) 867 F Supp 1, 7 ADD
483, 3 AD Cas 1449.
Even if psychologist's testimony established that appellant's psychological impairment
(post-traumatic stress disorder) could be accommodated, it also established that she was
not handicapped person entitled to accommodation since it established that she was not
foreclosed generally from type of employment she had performed, only that it precluded
her from meeting demands of her particular job. Manuel v Department of Veterans
Affairs (1993, MSPB) 58 MSPR 424.
Plaintiff was handicapped person due to his alcohol and drug abuse, and because plaintiff
was terminated from his employment solely by reason of his excessive absences which
were caused by his substance abuse, he was discharged solely by reason of his handicap;
however, where plaintiff was not current substance abuser at time of his discharge, but
record established that there was likelihood of relapse and recurrence of excessive
absences, under circumstances plaintiff was not "otherwise qualified" in spite of his
handicap within purview of Rehabilitation Act (29 USCS 794). Teahan v Metro-North
Commuter R.R. (1994, SD NY) 8 ADD 207, 3 AD Cas 1694.
Proof that individual suffers from impairment does not conclusively establish that
individual is also disabled; plaintiff must also introduce evidence to establish that her
impairment substantially limits at least one major life activity. Branch v City of New
Orleans (1994, ED La) 7 ADD 760.
In deciding whether plaintiff is handicapped individual within meaning of Rehabilitation
Act (29 USCS 701 et seq.), Congress intended that determination of whether
impairment substantially limits major life activity to be made without regard to any
medication taken by plaintiff, even if medication completely controls symptoms;
additionally, plaintiff can establish that she is handicapped if she can demonstrate that
she has record of such impairment, even if impairment does not presently limit one or
more major life activities. Liff v Secretary of Transp. (1994, DC Dist Col) 9 ADD 707.
Individual has disability within meaning of Rehabilitation Act (29 USCS 706(8)(B)) if
person (1) has physical or mental impairment which substantially limits one or more of
person's major life activities, (2) has record of having such impairment, or (3) is regarded
as having such impairment; in context of alleged employment discrimination in violation
of 504 of Rehabilitation Act (29 USCS 794), this inquiry is fact specific and focuses
on whether particular impairment constitutes for particular person significant barrier to
employment. Szymanska v Abbott Lab. (1994, ND Ill) 4 ADD 895.
Neither 504 of Rehabilitation Act (29 USCS 794) nor ADA (42 USCS 12101 et
seq.) is to be read as requiring employer to restructure job so as to change job's
fundamental requirements, such as ability to cope with job's inherent stressors. Carrozza
v Howard County (1994, DC Md) 4 ADD 842.
Postal service employee was individual with disability or handicap within meaning of
501 and 504 of Rehabilitation Act (29 USCS 791 and 794) where employee had been
diagnosed by various doctors as having mental impairments and was taking
antidepressant drugs. Boldini v Postmaster Gen. (1995, DC NH) 10 ADD 127.
Nurse who had stopped working because of her back injury was not qualified individual
with disability because she and her doctor had made statements, in connection with
application for long-term disability benefits, indicating that her injury was permanent and
prevented her from performing any of essential functions of her job as nurse, and because
nurse had admitted that her injuries were so debilitating that no reasonable
accommodation could have been tailored to satisfy her severe limitations. Stafford v
Radford Community Hosp. (1996, WD Va) 14 ADD 91.
Footnotes
Footnote 79. As to physical or mental impairments, see 185.
Footnote 80. As to major life activities, see 186 and , see 187.
Footnote 81. 188.
Footnote 82. 29 USCS 706(8)(B).

As to who is regarded as having an impairment, see 189.
Footnote 83. 192-196.
Footnote 84. Perez v Philadelphia Housing Authority (1987, ED Pa) 677 F Supp 357,
affd without op (CA3) 841 F2d 1120.
185 Physical or mental impairments as constituting disabilities

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An impairment, for the purpose of determining who are individuals with disabilities
under the Rehabilitation Act, may be physical or mental.
A physical impairment is any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the following body systems:
neurological; musculoskeletal; special sense organs; cardiovascular; reproductive;
digestive; genitourinary; hematic; lymphatic; skin; or endocrine. A mental impairment is
any mental or psychological disorder, such as mental retardation, organic brain
syndrome, emotional or mental illness, and specific learning disabilities. 85
A physical and mental impairment has also been defined as "any condition which
weakens, diminishes, restricts, or otherwise damages an individual's health or physical or
mental activity." 86
Not all physical or mental limitations warrant a finding that an individual is disabled
because of the condition. For example, the Rehabilitation Act does not protect an
individual:
with a transitory ailment that has no permanent effect on his health; 87
who has a characteristic, such as average height or strength, that renders him incapable
of performing particular jobs; 88
who is left-handed, because left-handedness is a physical characteristic, not a chronic
illness, disorder or deformity, mental disability, or a condition affecting an individual's
health; 89
who, as a body builder, voluntarily has a very muscular physique, which prevents him
from meeting an employer's valid weight requirement; 90
whose personality traits included poor judgment, irresponsible behavior, and poor
impulse control; 91
However, a receptionist suffering from a severe back sprain had a physical impairment
regardless of the fact that the impairment might not be permanent, or commonly
recognized as a disability condition. 92 Epilepsy is a medical condition that is an
impairment under the Rehabilitation Act. 93
Furthermore, since compulsive gambling is widely recognized as a mental disorder, it
may constitute a mental impairment under the Rehabilitation Act. 94
185 ----Physical or mental impairments as constituting disabilities
[SUPPLEMENT]
Regulations:
Case authorities:
Rejected police officer candidate has Rehabilitation Act (29 USCS 701 et seq.) claim
dismissed as matter of law, where he claims that rejection was based on his
nearsightedness, because applicant was not handicapped or disabled person within
meaning of 706(8)(B) since he was not impaired in way that substantially limits major
life activity. Joyce v Suffolk County (1996, ED NY) 911 F Supp 92, 14 ADD 1102.
Footnotes
Footnote 85. 28 CFR 41.31(b)(1), 29 CFR 1613.702(b).
Footnote 86. E. E. Black, Ltd. v Marshall (1980, DC Hawaii) 497 F Supp 1088, 23 BNA
FEP Cas 1253, 24 CCH EPD 31260, vacated on other grounds (DC Hawaii) 26 BNA
FEP Cas 1183, 27 CCH EPD 32199.
Footnote 87. Stevens v Stubbs (1983, ND Ga) 576 F Supp 1409, 33 BNA FEP Cas 1249.
Footnote 88. Jasany v U.S. Postal Service (1985, CA6) 755 F2d 1244, 37 BNA FEP Cas
210, 36 CCH EPD 35070.
Footnote 89. De La Torres v Bolger (1986, CA5) 781 F2d 1134, 39 BNA FEP Cas 1795,
39 CCH EPD 35883.
Footnote 90. Tudyman v United Airlines (1984, CD Cal) 608 F Supp 739, 38 BNA FEP
Cas 732, 38 CCH EPD 35674.
Footnote 91. Daley v Koch (1989, CA2) 892 F2d 212, 51 BNA FEP Cas 1077, 52 CCH
EPD 39534.
Footnote 92. Perez v Philadelphia Housing Authority (1987, ED Pa) 677 F Supp 357,
Footnote 93. Estate of Reynolds v Dole (1990, ND Cal) 57 BNA FEP Cas 1848.
Law Reviews: Young, Epileptics: Employment Discrimination and Rights. 34 Med
Trial Tech Q 425 (1988).
Footnote 94. Rezza v U.S. Dept. of Justice (1988, ED Pa) 46 BNA FEP Cas 1366, 46
CCH EPD 37976.
186 Requirement under 501 and 504 that impairment substantially limit
"major life activities"
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Under 501 and 504 of the Rehabilitation Act, "major life activities" are functions such
as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 95
Thus, an impairment that interferes with an individual's ability to do a particular job, but
does not significantly decrease his ability to obtain satisfactory employment, is not
considered to be a substantially limiting condition. 96
Examples of individuals whose impairments were not substantially limiting under 501
and 504 include:
an employee with a fear of heights who was terminated from a position that required
climbing stairways and ladders, since his fear only rendered him incapable of satisfying
the particular demands of one job and had never had an effect on his other activities,
including his past work history; 97
an employee with a mild case of strabismus or crossed eyes, which had no effect on any
of his activities; 98
an applicant for an attorney position with a "borderline" case of cerebral palsy, since his
illness was so slight that it could only be detected with the use of sophisticated diagnostic
medical equipment, and the minor limitations it imposed on his speaking and reading
ability did not hinder his practice of law; 99
a woman with varicose veins in her legs which affected her ability to stand and sit to
some degree, since her condition was mild to moderate and did not prevent her from
performing jobs that allowed her to sit and stand alternately throughout the day; 1
a postal employee with a lower back condition who performed all of the regular duties
of his position, had no permanent limitations or temporary limitations on his ability to
work after he returned from sick leave, and who had not made a request for an
accommodation; 2
an employee whose respiratory problem would be aggravated by an assignment to

laboratory work, but who was not limited in any other work or in other life activities. 3
On the other hand, individuals who had substantially limiting impairments under 501
and 504 have included:
a diabetic who had once gone into a diabetic coma; 4
an employee whose colon was removed as a life-saving measure, thereby affecting not
only his digestive system but also limiting his ability to care for himself and do manual
tasks; 5
an employee with partial vision loss in one eye; 6
employees whose impairment interfered with their ability to work during specified
hours or shifts; 7
an employee with an unusual sensitivity to the employer's closed building environment.
8
186 ----Requirement under 501 and 504 that impairment substantially limit
"major life activities" [SUPPLEMENT]
Regulations:
Case authorities:
Summary judgment was properly granted for hospital which discharged employee from
position as administrator of hospital's blood bank after fumes and ventaliation problems
in blood bank caused employee's asthma to worsen and she then refused to work in area,
since employee was not handicapped person under Act because her asthmatic condition
did not substantially limit major life activity of either breathing or working, except in
area of blood bank. Heilweil v Mount Sinai Hosp. (1994, CA2 NY) 32 F3d 718, 6 ADD
448, 3 AD Cas 964.
Engineer who was diagnosed with depression was not disabled within meaning of ADA
Title I (42 USCS 12111 et seq.) or 504 of Rehabilitation Act (29 USCS 794)
because she had not shown that at time of her termination her depression substantially
limited major life activities of functioning, sleeping, concentrating, communicating, or
working or that she was regarded by her employer as disabled. Pritchard v Southern Co.
Servs. (1995, ND Ala) 9 ADD 1069, 4 AD Cas 465.
Person who has idiopathic thrombocytopenic purpura, blood disorder, which
substantially limits person's ability to perform many major life activities, is individual
with disability and is covered by provisions of 504 of Rehabilitation Act (29 USCS
794) and ADA (42 USCS 12101 et seq.). Thomas by & Through Thomas v Davidson
Academy (1994, MD Tenn) 4 ADD 1140.
Footnotes
Footnote 95. 28 CFR 41.31(b)(2); 29 CFR 1613.702(c).
210, 36 CCH EPD 35070; Tudyman v United Airlines (1984, CD Cal) 608 F Supp 739,
Footnote 97. Forrisi v Bowen (1986, CA4) 794 F2d 931, 41 BNA FEP Cas 190, 40 CCH
EPD 36307.
210, 36 CCH EPD 35070.
Footnote 99. Pridemore v Rural Legal Aid Soc. (1985, SD Ohio) 625 F Supp 1180, 40
CCH EPD 36184.
Footnote 1. Oesterling v Walters (1985, CA8) 760 F2d 859, 37 BNA FEP Cas 865, 36
CCH EPD 35201.
Footnote 2. Diaz v U.S. Postal Service (1987, ED Cal) 658 F Supp 484, 44 BNA FEP
Cas 743, 44 CCH EPD 37515.
As to accommodation of disabilities[R*AC, see 040] et seq.
Footnote 3. Maulding v Sullivan (1992, CA8) 961 F2d 694, 58 BNA FEP Cas 854, 58
CCH EPD 41392.
Footnote 4. Brown v County of Genesee (1985, ED Mich) 37 BNA FEP Cas 1595.
Footnote 5. Jones v Hodel (1989, DC Utah) 711 F Supp 1048 50 BNA FEP Cas 1267.
Footnote 6. Santiago v Temple University (1990, ED Pa) 739 F Supp 974, 53 BNA FEP
Cas 1514, 5 BNA IER Cas 1465, CCH EPD 40217.
Footnote 7. Guice-Mills v Derwinski (1991, SD NY) 772 F Supp 188, 56 BNA FEP Cas
1592, 57 CCH EPD 41215, affd (CA2) 59 BNA FEP Cas 246; Rhone v U.S. Dept. of
Army (1987, ED Mo) 665 F Supp 734, 46 BNA FEP Cas 1133, 44 CCH EPD 37511.
Footnote 8. Jackson v California (1991, CA9) 1991 US App LEXIS 18067.
187 Requirement under 503 that impairment hinder employment prospects

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Under 503 of the Rehabilitation Act, to be an individual with disabilities a person must
have a substantially limiting impairment to the extent that he is likely to experience

difficulty in securing, retaining, or advancing in employment because of the disability. 9
Observation: This definition must be evaluated in the context of the particular

individual. Thus, an individual with disabilities has a physical or mental disability that
personally constitutes or results in a substantial obstacle to employment. It is the
impaired individual that must be examined, and not just the impairment in the abstract.
This necessitates a case-by-case determination of whether the impairment or perceived
impairment 10 constitutes, for that individual, a substantial obstacle to employment.
An important factor in the case-by-case determination is the number and type of jobs
from which the impaired individual is disqualified. The focus cannot merely be on the
job criteria or qualifications used by an individual employer, but must encompass those
in use generally. In evaluating whether there is a substantially limiting obstacle to
employment it must be assumed that all employers offering the same job or similar would
use the same requirement or screening process. 11
Observation: In making a case-by-case determination of whether a disability is

substantially limiting under 503 of the Rehabilitation Act, a single position is
examined, but in relation to the entire range of similar positions offered by other
employers, to decide whether the person will be disqualified from employment because
of an impairment.
187 ----Requirement under 503 that impairment hinder employment prospects
[SUPPLEMENT]
Regulations:
(ancillary matters). ''Individual with a disability'' is now defined in 41 CFR
60-741.2(n).
Footnotes
Footnote 9. 41 CFR 60-741.2.
Footnote 10. As to who is regarded as having an impairment, see 189.
FEP Cas 1183, 27 CCH EPD 32199.
188 Having a record of an impairment

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A person may be considered an individual with disabilities under the Rehabilitation Act
if he has a record of an impairment, that is, has a history of, or has been classified or
misclassified as having, a mental or physical impairment that substantially limits one or
more major life activities. 12
Individuals with records of an impairment include those who may be completely
recovered from a previous mental or physical impairment. 13 Thus, an employee who
had previously been hospitalized with a contagious disease had a record of an
impairment. 14
188 ----Having a record of an impairment [SUPPLEMENT]
Regulations:
(ancillary matters). Also revised were the appendices, of which there are now four (A
through D).
Footnotes
Footnote 12. 29 CFR 1613.702(d), 28 CFR 41.31(b)(3).
Footnote 13. 41 CFR Part 60-741 (Appendix A).
Footnote 14. School Bd. v Arline (1987) 480 US 273, 94 L Ed 2d 307, 107 S Ct 1123,
43 BNA FEP Cas 81, 42 CCH EPD 36791, reh den 481 US 1024, 95 L Ed 2d 519,
107 S Ct 1913, 42 CCH EPD 36940.
As to the rights of persons having contagious diseases, generally, see 190.
189 Individuals regarded as having an impairment

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An individual may be considered as an individual with disabilities under the
Rehabilitation Act if he is regarded as having an impairment, 15 which means that he:
(1) has a physical or mental impairment that does not substantially limit major life
activities 16 but is treated by an employer as constituting such a limitation, (2) has a
physical or mental impairment that substantially limits major life activities only as a
result of an employer's attitude towards the impairment, or (3) has none of the
impairments defined in the regulations but is treated by an employer as having such an
impairment. 17
Accordingly, an employee whose back x-ray showed some abnormalities, but who was
asymptomatic and capable of performing all of the physical functions of the job in
question, was perceived to have an impairment by an employer that rejected him based
on that condition. 18
However, an employer does not necessarily regard an employee as impaired simply by
finding that he is incapable of satisfying the demands of a particular job. Rather, the
employer must find that the employee's impairment generally forecloses the type of
employment involved. Thus, an employee whose fear of heights disqualified him from
only one job could not have been regarded as impaired by the employer. 19
Where an impairment is not evident without a medical examination or testing, it may not
be possible to demonstrate that the employer regarded the employee or applicant as
impaired unless additional information is provided to the employer regarding the
individual's condition. For example, a postal service employee who was discharged for
poor attendance failed to establish that he was regarded as having an impairment when he
never informed his employer that his absences were caused by his schizophrenia, and the
impairment was not readily apparent. 20 Likewise, a nurse who was terminated for
refusing to submit the results of an AIDS-antibody test he had taken to his hospital
employer could not show that he was regarded as being impaired, since the employer
continued to request the test results. 21
189 ----Individuals regarded as having an impairment [SUPPLEMENT]
Regulations:
Footnotes
Footnote 15. 184.
Footnote 16. As to impairment of major life activities, see 186 and , see 187.
Footnote 17. 29 CFR 1613.702(e); 28 CFR 41.31(b)(4); 41 CFR 60-741
(Appendix A).
FEP Cas 1183, 27 CCH EPD 32199.
Footnote 19. Forrisi v Bowen (1986, CA4) 794 F2d 931, 41 BNA FEP Cas 190, 40 CCH
EPD 36307.
Footnote 20. Hubbard v U.S. Postal Service (1986, DC Md) 42 BNA FEP Cas 1882.
Footnote 21. Leckelt v Board of Commissioners of Hospital Dist. No. 1 (1989, ED La)
714 F Supp 1377, 49 BNA FEP Cas 541, 4 BNA IER Cas 383, 13 BNA OSHC 2086, 49
CCH EPD 38900), affd (CA5) 909 F2d 820, 53 BNA FEP Cas 1136, 5 BNA IER Cas
1089, 54 CCH EPD 40223.
As to when an employer may lawfully require testing for AIDS or other health-related
conditions[R*AG, see 430] et seq.
190 Individuals with contagious diseases

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Under the provisions of the Rehabilitation Act stating that an individual with disabilities
is one who has a physical or mental impairment which substantially limits one or more of
his or her major life activities, 22 a person with a contagious disease can be an
individual with disabilities. A person with a contagious disease has a physical
impairment 23 which substantially limits major life activities 24 when the disease
significantly impairs bodily functions or major body systems. Even when not directly
affected by the disease, such an individual is protected by the Rehabilitation Act if he has
a record of such an impairment or is regarded as having such an impairment. 25
However, an individual whose contagious disease either poses a direct risk to the health
or safety of others 26 or prevents the individual from performing the duties of the job 27
is not an individual with a disability. 28 A determination that a risk of harm cannot be

eliminated by reasonable accommodation 29 is dependent on the medical facts of each
case and the nature of the job. 30
Observation: This statutory exemption from coverage for persons with contagious
diseases merely clarifies Arline's 31
definition of the disabled as including persons
with contagious physical impairments provided they are "otherwise qualified" 32 to
perform the job.
The U.S. Justice Department has taken the position based on Arline and the statutory
exemption regarding health and safety risks and performance that a person with AIDS is
within the 504 definition of an individual with disabilities as long as he does not pose a
direct risk to the health or safety of others and is able to perform the duties of the job. 33
In resolving the issue of HIV-related discrimination by government contractors and
subcontractors under 503 of the Rehabilitation Act, the Office of Federal Contract
Compliance will follow Arline and the Department of Justice. 34
190 ----Individuals with contagious diseases [SUPPLEMENT]
Statutes:
Footnotes
Footnote 22. 184.
Footnote 23. 185.
107 S Ct 1913, 42 CCH EPD 36940.
As to who has a record of an impairment[R*AC, see 024].
As to who is regarded as having an impairment[R*AC, see 025].
Footnote 26. As to the calculation of risk to others, see 195.
Footnote 27. As to the ability of a person with a contagious disease to perform the duties
of a job, see 196.
Footnote 28. 29 USCS 706(8)(D).
Footnote 29. As to what is a reasonable accommodation, see 197.
Footnote 30. 134 Cong. Rec. H 584.

107 S Ct 1913, 42 CCH EPD 36940.
Footnote 33. Justice Department Memorandum on Application of Rehabilitation Act's
Section 504 to HIV-Infected Persons, 9/27/88.
Law Reviews: Fagot-Diaz, Employment Discrimination Against AIDS Victims:
Rights and Remedies Available Under the Federal Rehabilitation Act of 1973. 39 Lab
L J 148 (1988).
Footnote 34. OFCCP Federal Contract Compliance Manual Appx 6D subd 4.C.
191 Drug abusers and alcoholics

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Under the Rehabilitation Act, a person is not protected as an individual with disabilities if
he is currently engaging in the "illegal use of drugs," when a covered entity acts on the
basis of such use. 35 However, an individual who is no longer engaging in the "illegal
use of drugs" who (1) has successfully completed a supervised drug rehabilitation
program or has otherwise been successfully rehabilitated, or (2) is participating in a
supervisory rehabilitation program, or (3) is erroneously regarded as engaging in such
use, is still considered to be an individual with disabilities. 36
Although the Rehabilitation Act provides no standard by which the accuracy or validity
of a drug test can be determined, an individual who has tested positive on a drug test may
still be protected under the Act as an individual who is erroneously regarded as engaging
in "illegal use of drugs". 37 Nevertheless, it is not a violation of the Rehabilitation Act
for a covered entity to adopt or administer reasonable policies or procedures designed to
ensure that individuals formerly engaged in the illegal use of drugs are no longer engaged
in such use. 38
Employees who are in a substance abuse rehabilitation program pending their termination
from employment should be considered past substance abusers entitled to the Act's
protections. Even if this places some burden on the employer's right to maintain
acceptable job performance standards, Congress' goal of encouraging substance abusers
to seek treatment and quickly reintegrate into the workforce outweighs the burden. 39
A "drug" means a controlled substance as defined in the Controlled Substances Act (21
USCS 801 et seq.). 40 "Illegal use of drugs" means the use of a drug the possession
or distribution of which is unlawful under the Controlled Substances Act, but does not
include the use of any drug taken under the supervision of a licensed health care
professional, or other uses authorized by the Controlled Substances Act or other federal
laws. 41 An individual covered by Executive Order 12564 (mandating a drug-free
federal workplace) who tests positive on an employment-related drug test conducted and
verified in conformity with applicable federal regulations is considered to be currently
engaging in the "illegal use of drugs". 42
Furthermore, a person is not protected as an individual with disabilities if he is an
alcoholic whose current use of alcohol prevents him from performing the duties of his job
or whose employment, by reason of his current alcohol abuse, would constitute a direct
threat to the property or safety of others. 43
191 ----Drug abusers and alcoholics [SUPPLEMENT]
Statutes:
Case authorities:
Terminated college basketball coach has alleged prima facie case under Rehabilitation
Act (29 USCS 701 et seq.), where he was firedafter 7 years of coaching and 4 days
after accepting 2-year contract extensionfollowing arrest for driving under influence of
alcohol, because coach has shown that he may qualify as individual with handicap under
706(8)(B), who is being subjected to discrimination solely by reason of his handicap.
Mackey v Cleveland State Univ. (1993, ND Ohio) 837 F Supp 1396, 3 ADD 649, 2 AD
Cas 1392.
Exemption contained in 29 USCS 706(8)(C)(v) applies only to individuals bringing
suit under 29 USCS 793 and 794; thus, exemption does not apply to federal
employees who bring suit under 29 USCS 791. Williams v Widnall (1996, CA10 Okla)
79 F3d 1003, 5 AD Cas 663.
Exemption contained in 29 USCS 706(8)(C)(v) applies only to individuals bringing
suit under 29 USCS 793 and 794; thus, exemption does not apply to federal
employees who bring suit under 29 USCS 791. Williams v Widnall (1996, CA10 Okla)
79 F3d 1003, 5 AD Cas 663.
Provision of 29 USCS 706(8)(C)(v), which exempts from coverage alcoholics who,
because of current alcohol abuse, constitute direct threat to safety or property of others,
does not apply in action under 29 USCS 791. Williams v Widnall (1996, CA10 Okla)
79 F3d 1003, 15 ADD 33, 5 AD Cas 663.
Reasonable accommodation of employee's alcoholism required that he be allowed time
off for treatment, but employer was not obligated to wait for employee to successfully
complete program, especially where employee continued making threats against
co-workers while he was in treatment, which justified employer in concluding that
employee's handicap could not be reasonably accommodated without undue hardship on
employer in form of potential harm to employee's supervisor and co-workers. Williams v
Widnall (1996, CA10 Okla) 79 F3d 1003, 15 ADD 33, 5 AD Cas 663.
Rehabilitation Act (29 USCS 701 et seq.) does not supply disabled individuals with
tort remedy, rather, Act functions prophylactically, prohibiting federally funded
employers from discriminating against persons with disabilities as defined by Act;
consequently, where plaintiff is not disabled within meaning of Act, employer's demands,
no matter how unreasonable or injurious, are not actionable under Act. Lawrence v
Metro-Dade Police Dep't (1993, SD Fla) 872 F Supp 950, 9 ADD 392, 3 AD Cas 1396.
County police officer who was discharged following numerous off-duty altercations, at
least some of which occurred while he was intoxicated, had no cause of action under
504 of Rehabilitation Act (29 USCS 794) because he was discharged due to his
off-duty conduct and not due to his alcoholism. Rollison v Gwinnett County (1994, ND
Ga) 865 F Supp 1564, 7 ADD 272, 10 ADD 478.
Americans with Disabilities Act amended Rehabilitation Act so as to exclude users of
illegal drugs from coverage under Rehabilitation Act; therefore, such users are not
entitled to claim disability discrimination and agencies do not have duty to accommodate
such users. Little v United States Postal Serv. (1995, MSPB) 66 MSPR 574.
It cannot be concluded as matter of law that doctor's drug addiction handicap could be
reasonably accommodated through his continued participation in treatment program,
thereby rendering him otherwise qualified to continue in residency program, where
doctor's history of chemical dependency included at least one incidence of relapse, future
relapse was likely since his position as anesthesiologist made drugs uniquely available to
him, and he was not dealing effectively with his problem; therefore summary judgment
on issue of whether doctor was otherwise qualified was not appropriate. Sherman v State
(1995) 128 Wash 2d 164, 905 P2d 355, 13 ADD 107, 5 AD Cas 232, mod (1996, Wash)
1996 Wash LEXIS 8.
Former employee of Internal Revenue Service who alleged that he was dismissed from
his position because of his alcoholism, and not because he had falsified his employment
application as claimed by employer, failed to state prima facie case of disability
discrimination under Rehabilitation Act (29 USCS 701 et seq.) since he produced no
evidence that his alcoholism was sole reason for his termination and that employer's
stated reason for firing was pretextual. Gilroy v Bentsen (1996, MD Fla) 15 ADD 160, 9
FLW Fed D 664.
Footnotes
Footnote 35. 29 USCS 706(8)(C)(i).
Law Reviews: Employment Discrimination Against Substance Abusers: The Federal
Response. 33 B C L Rev 155 (1991).
Footnote 36. 29 USCS 706(8)(C)(ii).
Footnote 37. H Conf Rept No. 101-596, 7/12/90, p. 89.
Footnote 39. Teahan v Metro-North C. R. Co. (1991, CA2) 951 F2d 511, 57 BNA FEP
Cas 1138, 57 CCH EPD 41193.

Footnote 43. 29 USCS 706(8)(C)(v).
Law Reviews: Fitzpatrick, Alcoholism as a Handicap Under Federal and State
Employment Discrimination Laws. 7 Lab Law 395 (1991).
(2). Requirement of Qualification for Position [192- 196]
192 Who is "qualified"

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The Rehabilitation Act does not define who is a qualified individual with disabilities.
Furthermore, the regulatory definitions of that term under 501, 503, and 504 of the
Act differ slightly. 44 Under 501, a qualified person with disabilities means with
respect to employment, a person with disabilities 45 who, with or without a reasonable
accommodation, 46 can perform the essential functions 47 of the position in question
48 without endangering his health and safety or that of others. 49
Under 504, a qualified person with disabilities, with respect to employment, is a person
with disabilities who, with reasonable accommodation, can perform the essential
functions of the job in question. 50 Thus, even if a person with disabilities cannot meet
the written requirements for the position, the person may be considered "otherwise
qualified" if the requirements do not represent the essential functions of the position, or if
the requirements were waived as a reasonable accommodation, the person could perform
the job. 51
A qualified individual with disabilities under 503 means a disabled individual who is
capable of performing a particular job, with a reasonable accommodation to his
disability. 52
Observation: These definitions differ in a few significant ways. While both the
501 and 504 regulations provide that an individual is qualified if he can perform the
"essential functions" of the job in question, the 503 regulations do not contain this
"essential functions" language and may, therefore, be interpreted as being narrower in
scope of coverage. Also, the 501 regulations pertaining to federal employment
specifically require considering the health and safety of the individual and others in
making a determination of who is qualified, while the 503 and 504 regulations do
not.
Nevertheless, a person with disabilities was not qualified for a job under 504 when
there was a genuine substantial risk, rather than an unfounded fear or prejudice, that he
could be injured or injure others, and the employer could not modify the job to eliminate
the risk. 53
In determining if a disabled individual can perform the essential functions of her position,
the employer does not have to accept the employee's physician's opinion of the
employee's qualifications for a job. However, once given a doctor's opinion, the
employer may not rely on stereotypes and prejudicial generalizations to cast doubt on an
individual's capabilities. 54
An employee cannot be "otherwise qualified" if he fails to report to work, 55 or if he
suffers from a disabling condition that is controllable by medication, but does not take it.
56
Employees were also not "otherwise qualified" under the Rehabilitation Act when they:
were on medication that prevented them from reporting to work at the prescribed time;
57
could not report to work on a reasonably regular and predictable schedule; 58
were too emotionally fragile to withstand even the ordinary pressures of the workplace,
so that the only reasonable accommodation would be a virtually stress-free environment.
59
An employee whose job responsibilities bear on public safety also may not be "otherwise
qualified" under 504, even if he is currently undergoing rehabilitation from substance
abuse. However, the employer must satisfy the heavy burden of showing that freedom
from past substance abuse is an essential job requirement. It can do this by showing that
the employee's performance would be worse compared to that of nondisabled employees.
60
192 ----Who is "qualified" [SUPPLEMENT]
Regulations:
(ancillary matters). ''Qualified individual with a disability'' is now defined in 41 CFR
60-741.2(t).
Case authorities:
Employee's complaint that employer's placing her on permanent disability status violated
29 USCS 794 is dismissed, where plaintiff suffered from physical disorder related to
nervous system that caused her to have attacks at unpredictable times and to be absent
from work for extended periods of time due to hospitalization, brain surgery, and
emotional reactions to work-related experiences, because employee was handicapped but
was not otherwise qualified to perform her job, since her position made her actual
presence in workplace, her predictable availability, and her ability to work with
colleagues essential to timely completion of projects. Misek-Falkoff v IBM Corp. (1994,
SD NY) 854 F Supp 215, 5 ADD 569, 3 AD Cas 449.
Postal Service's firing of alcoholic mail handler did not violate 29 USCS 794, where
Service allowed handler to enter employee assistance program and to enter into
last-chance agreement which imposed strict limits on unscheduled absences, because
last-chance agreement was reasonable accommodation accepted by handler, and her
violation of limits therein, although minimal, justified Service's termination decision.
Golson-El v Runyon (1993, ED Pa) 812 F Supp 558, 1 ADD 592, 2 AD Cas 493, later
proceeding (ED Pa) 60 CCH EPD 42060.
Rigger's acknowledged inability to perform essential functions of his original position
does not undermine his claims under 29 USCS 791 and 794, where rigger became
unable to perform rigors of that job due to back injury, was placed in temporary
light-duty positions by Navy, but ultimately was denied continued employment, because
Navy had obligation to reassign rigger to permanent light-duty position if he was
otherwise qualified to perform such work despite back handicap. Taylor v Garrett (1993,
ED Pa) 820 F Supp 933, 2 ADD 1, 2 AD Cas 778, 62 CCH EPD 42369.
In context of medical benefits, meaningful "otherwise qualified" standard may be based
on premise that disability alone is not permissible ground for withholding medical
benefits; therefore, in action by member of managed healthcare system alleging that his
primary care physician wrongfully refused to treat him or to authorize his hospitalization
because plaintiff was HIV-positive, plaintiff was "otherwise qualified" for medical
benefits if there was no factor apart from mere existence of disability that rendered him
unqualified for benefits. Woolfolk v Duncan (1995, ED Pa) 872 F Supp 1381, 8 ADD
131.
Individual who could lose consciousness because of his diabetes or suffer cardiac failure
or stroke because of his severe heart condition could not perform essential functions of
job of bus driver in that he could not operate motor vehicle in safe and responsible
fashion, and therefore individual was not otherwise qualified individual with regard to
position of bus driver. Myers v Hose (1995, CA4 Md) 50 F3d 278, 9 ADD 5, 4 AD Cas
391.
Police officer who lost use of his left arm as result of accident was not otherwise
qualified individual with disability entitled to protection under ADA Title I (42 USCS
12111 et seq.) or 504 of Rehabilitation Act (29 USCS 794) because he was unable to
meet all of essential functions of police officer, which included ability to make forcible
arrest. Champ v Baltimore County (1995, DC Md) 884 F Supp 991, 9 ADD 983, 4 AD
Cas 808.
Former deputy U.S. marshall was not otherwise qualified individual where essential
function of job required him to carry firearm, but former deputy's medical history of
paranoid personality disorder established that permitting him to carry firearm would pose
reasonable probability of substantial harm to former deputy and others. Lassiter v Reno
(1995, ED Va) 885 F Supp 869, 10 ADD 101, 4 AD Cas 609.
Where FBI had employed plaintiff doctor to give agents physicals, and doctor did not
cooperate with FBI's efforts to determine if doctor had AIDS and if he posed any risk to
agents he examined, FBI was thus unable to determine after reasonable inquiry whether
doctor was reasonably qualified to perform his job, and therefore no violation of 504 of
Rehabilitation Act (29 USCS 794) occurred when FBI gave its agents choice to go
elsewhere for physicals. Doe by Lavery v Attorney Gen. of the United States (1995, CA9
Cal) 44 F3d 715, 8 ADD 60, 95 CDOS 440, 95 Daily Journal DAR 823, 4 AD Cas 52.
Employer subject to Rehabilitation Act (29 USCS 701 et seq.) must be permitted to
terminate its employee because of egregious misconduct, regardless of whether employee
is handicapped, and alcoholics and drug addicts can be held to same standard of
performance and behavior as nondisabled employees, and Act does not protect them from
consequences of their misconduct. Williams v Widnall (1996, CA10 Okla) 79 F3d 1003,
15 ADD 33, 5 AD Cas 663.
Veterans Administration employee with disability, hired as housekeeping aide but absent
numerous times within first few months of his probationary employment on sporadic,
unpredictable basis, cannot fulfill essential function of his employment of being present
on job, and so is not otherwise qualified within meaning of 29 USCS 794. Jackson v
Veterans Admin. (1994, CA11 Ala) 22 F3d 277, 5 ADD 440, 3 AD Cas 483, 8 FLW Fed
C 265.
Letter carrier was handicapped employee since his physical condition precluded his
distributing or delivering mail, but was not "qualified handicapped" person since he
failed to identify vacant position in which he could perform with or without reasonable
accommodation, and agency presented credible evidence, not directly challenged, that it
had no position to which employee could be assigned on permanent basis for which he
met physical requirements. Gray v United States Postal Serv. (1993, MSPB) 59 MSPR
142.
Letter carrier established affirmative defense of disability discrimination by Postal
Service's removing him as carrier for failure to meet physical requirements of job after
finding that he had significant degenerative arthritis in both knees, since he was
performing his duties adequately before his removal and no accommodation was
required. Yates v United States Postal Serv. (1996, MSPB) 70 MSPR 172.
Employee whose alcoholism caused him to commit numerous acts of misconduct which
resulted in his termination was not entitled to protection of Rehabilitation Act (29 USCS
794) because nature of his misconduct rendered him not otherwise qualified for job as
matter of law. Gonzalez v California State Personnel Bd. (1995, 3rd Dist) 33 Cal App 4th
422, 39 Cal Rptr 2d 282, 9 ADD 106, 95 CDOS 2120, 95 Daily Journal DAR 3580, 4
AD Cas 337.
Individual with multiple sclerosis who worked as vice president of bank was not
qualified for his position, as required under 504 (29 USCS 794), because personality
and emotional problems resulting from his multiple sclerosis prevented him from
working effectively with bank staff and customers, and there was no evidence that his
problems could be accommodated without totally changing his job responsibilities.
Boelman v Manson State Bank (1994, Iowa) 522 NW2d 73, 6 ADD 897, 3 AD Cas
1251.
Police officer who suffered injuries which caused her to be susceptible to blackouts in
highly stressful situations has failed to demonstrate that she is capable of performing
essential functions required of police officer, even with reasonable accommodation of her
handicap, and therefore cannot prove that she is qualified handicapped person; further,
having previously stated that she regarded herself as permanently and totally disabled,
plaintiff cannot now successfully claim that she is capable of performing essential
functions of job. Beal v Board of Selectmen (1995) 419 Mass 535, 646 NE2d 131, 8
ADD 622.
Plaintiff was not otherwise qualified to work for Postal Service because he refused to
report to work in any capacity because of his perceived total disability and was therefore
unable to perform essential functions of position in question, since attendance is almost
by definition essential function of any job. D'Antonio v Runyon (1994, ED Pa) 7 ADD
424.
Veterans' Administration did not violate Rehabilitation Act (29 USCS 701 et seq.) by
firing plaintiff due to excessive absence since plaintiff has not shown that he is otherwise
qualified individual because he has not demonstrated his ability to fulfill major criterion
of job, namely his presence. Jackson v Administrator of Veterans Affairs (1993, ND Ala)
7 ADD 1197, 3 AD Cas 620, affd (1994, CA11 Ala) 22 F3d 277, 5 ADD 440, 3 AD Cas
483, 8 FLW Fed C 265, reh, en banc, den (1994, CA11 Ala) 30 F3d 1500.
Although plaintiff admitted to being previously unable to perform critical element of her
job, plaintiff was "otherwise qualified" where new accommodations in workplace
allowed her to successfully perform task. Easley v West (1994, ED Pa) 8 ADD 253, 66
BNA FEP Cas 1634.
Applicant who alleged that she was denied admission to two nursing homes because of
her disability was not otherwise qualified for admission within meaning of 504 of
Rehabilitation Act (29 USCS 794), because neither facility offered subacute care
which applicant had effectively admitted that she required when she applied for and
accepted Medicaid benefits. Grubbs v Medical Facilities of Am. (1995, WD Va) 8 ADD
1149.
Employer is entitled to summary judgment in action by discharged employee under
Rehabilitation Act (29 USCS 701 et seq.) where employer established that employee
had made misrepresentations on his job application which were material both to his job
qualifications and to his personal integrity. Brewer v J.A. Peterson Realty Co. (1994, DC
Kan) 8 ADD 195, 3 AD Cas 1756.
Individual is otherwise qualified within meaning of 29 USCS 794 if he or she is able to
meet all of program's requirements in spite of disability; before court may determine that
individual is not otherwise qualified, it must determine whether some reasonable
accommodation is available to satisfy legitimate interests of both grantee and individual

with disabilities. Hoot by Hoot v Milan Area Sch. (1994, ED Mich) 5 ADD 499.
Individual who was hired by university as acting associate director of department and
who had long-term depressive disorder, stress-related disorder, and mood disorder which
caused him to be unable to perform duties and responsibilities outlined in job description
was not otherwise qualified for his position for purposes of 504 (29 USCS 794).
Voytek v University of California (1994, ND Cal) 6 ADD 1137.
Plaintiff was not "otherwise qualified" for her former position with postal service where
she exhibited hostility towards coworkers, refused to follow instructions, repeatedly
defied her supervisor's authority, and unreasonably questioned and contested actions of
her supervisor; and it seemed unlikely that she could become otherwise qualified through
accommodation since postal service was entitled to assign its personnel as needs dictated
and was not obligated to juggle personnel so as to entirely remove possibility that
supervisor might offend employee, nor was it obliged to indulge employee's propensity
for violence, even if it was engendered by handicapping mental illness. Boldini v
Postmaster Gen. (1995, DC NH) 10 ADD 127.
To be qualified for employment, individual with disability must satisfy requisite skill,
experience, education, and other job-related requirements of employment position and
must be able to perform essential functions of position, with or without reasonable
accommodation. Misek-Falkoff v IBM Corp. (1994, SD NY) 5 ADD 569, 3 AD Cas
449.
Trial court properly entered summary judgment for defendant city in action under state
handicap law by police officers who were involuntarily retired under department policy
after six months of service in desk-job assignments prompted by physical disabilities that
precluded normal patrol work, since statute requires that physically challenged workers
be able to perform essential functions of job. Matos v City of Phoenix (1993, App) 176
Ariz 125, 859 P2d 748, 131 Ariz Adv Rep 36, 2 AD Cas 1458.
Under 29 USCS 794, in employment context, otherwise qualified person is one who is
able to perform essential functions of job in question, and when person with disability is
not able to perform essential functions of job court must also consider whether any
reasonable accommodation by employer would enable person to perform those functions.
Nurse who had stopped working because of her back injury was not qualified individual
with disability because she and her doctor had made statements, in connection with
application for long-term disability benefits, indicating that her injury was permanent and
prevented her from performing any of essential functions of her job as nurse, and because
nurse had admitted that her injuries were so debilitating that no reasonable
accommodation could have been tailored to satisfy her severe limitations. Stafford v
Radford Community Hosp. (1996, WD Va) 14 ADD 91.
Title VII plaintiff, who injured his back while working for another employer after
defendant employer unlawfully failed to hire him as full- time employee, could not do
heavy lifting required to work for defendant employer; consequently, district court did
not abuse its discretion in denying plaintiff's request for instatement. Thurman v Yellow
Freight Sys. (1996, CA6 Tenn) 90 F3d 1160.
Footnotes
Footnote 44.
Annotation: Who is "qualified" handicapped person protected from employment
discrimination under Rehabilitation Act of 1973 (29 USCS 701 et seq.) and
regulations promulgated thereunder, 80 ALR Fed 830.
Footnote 45. As to who is a person with disabilities, see 184-191.
Footnote 46. 197-203.
Footnote 47. 194.
Footnote 48. 193.
Footnote 49. 29 CFR 1613.702(f).
As to determination of risk to the health or safety of others, see 195.
Footnote 51. Pandazides v Virginia Bd. of Educ. (1991, CA4) 946 F2d 345, 57 BNA FEP
Cas 232, 57 CCH EPD 41027.
Footnote 52. 41 CFR 60- 741.2.
Footnote 53. Chiari v League City (1991, CA5) 920 F2d 311, 55 CCH EPD 40514.
Footnote 54. Carter v Casa Central (1988, CA7) 849 F2d 1048, 47 BNA FEP Cas 257, 46
CCH EPD 38081.
Footnote 55. Wimbley v Bolger (1986, WD Tenn) 642 F Supp 481, 40 BNA FEP Cas
1855, 41 CCH EPD 36616, affd without op (CA6) 831 F2d 298; King v United States
Postal Service (1988, DC Dist Col) 47 CCH EPD 38181.
Footnote 56. Franklin v U.S. Postal Service (1988, SD Ohio) 46 BNA FEP Cas 1734.
1592, 57 CCH EPD 41215, affd (CA2) 59 BNA FEP Cas 246.
Footnote 58. Walders v Garrett (1991, ED Va) 765 F Supp 303, 56 BNA FEP Cas 265,
57 CCH EPD 40955, affd (CA4) 1992 US App LEXIS 3425.
Footnote 59. Pesterfield v Tennessee Valley Authority (1991, CA6) 941 F2d 437, 56

Cas 1138, 57 CCH EPD 41193.
193 What position is relevant for determining qualification

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When deciding whether a person with disabilities is "qualified" under the Rehabilitation
Act, depending on which statutory provision is involved, the inquiry encompasses an
evaluation of the "essential functions 61 of the job in question" or what capabilities are
necessary to perform "a particular job." To determine what these essential functions or
necessary capabilities are requires knowing what job is at issue.
While it is usually evident which position is relevant, it may not always be if the job
duties have changed. For example, a discharged employee had satisfactorily performed
"light duty" work for three years prior to his termination after he had become too disabled
to perform the essential duties of his previous job. In determining whether the individual
was qualified for his position, the court first had to decide from which position he had
been terminated. 62
Observation: An employer that accommodates 63 an employee with disabilities by

providing "light duty" assignments should clearly state whether the employee's position
is to be construed as a temporary accommodation for a certain amount of time, or a
permanent reassignment.
193 ----What position is relevant for determining qualification [SUPPLEMENT]
Practice Aids: Who is exempt from definition of "employee," under 11(f) of Age
Discrimination in Employment Act (ADEA) (29 USCS 630(f)), so as to be excepted
from coverage of Act. 110 ALR Fed 490.
Footnotes
Footnote 61. 194.
Footnote 62. Dancy v Klein (1986, ND Ill) 639 F Supp 1076, 40 BNA FEP Cas 1099.
Footnote 63. As to accommodation, generally, see 197 et seq.
194 Establishing the essential functions of a position

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To determine whether an individual with disabilities is qualified for a position, the
"essential functions" of the position in question must be established, at least under 501
and 504 of the Rehabilitation Act. Although a position description is a proper source for
determining what are the essential functions of a job, it is not necessarily controlling. 64
If additional duties necessary for completing a job are not formally added to a position
description, it may not be possible to use these to exclude a disabled individual from
being considered "otherwise qualified" simply because other employees have done them.
For example, an individual is "qualified" if he can perform all of the functions of his job
as outlined in the standard position description, even though, because of a disability, he
cannot perform additional duties that are performed by other persons holding the same
job. 65
Still, the determination whether a physical requirement is an essential function of a job
requires a highly fact-specific inquiry that should be based on more than the statements
of a job description, especially when the employee's past on-the-job experience
contradicts a requirement contained in the description. Thus, a legitimate factual issue
was raised as to whether heavy lifting was a requirement for a distribution clerk position
when the Postal Service's job description listed this requirement, but the plaintiff alleged
that she was never required to do heavy lifting and that she never observed any other
clerk doing heavy lifting. 66
Reasonably regular and predictable attendance is an implicit and essential job
requirement even when it is not mentioned in a job description. 67
Recommendation: Employers may avert the problem of omitting required tasks from
a position description simply by adding a provision requiring the performance of
whatever additional tasks the employer needs to assign to complete the job. However,
position descriptions should reflect job duties as accurately as possible to avoid various
types of discrimination problems.
Thus, an individual was unable to perform the essential functions of a job where:
an alcoholic who had participated in two treatment programs and exhibited a two-year
pattern of unscheduled absences could not follow a regular work schedule; 68
a paranoid schizophrenic could not obtain a required security clearance. 69
194 ----Establishing the essential functions of a position [SUPPLEMENT]
Case authorities:
Teacher who suffered from panic attacks and anxiety and who alleged that school district
violated 504 of Rehabilitation Act (29 USCS 794) by failing to reasonably

accommodate his disability by refusing to assign him to non-classroom position was not
otherwise qualified within meaning of 504 because classroom teaching which his
disabilities allegedly precluded constituted essential function of teacher's job within
district. Mustafa v Clark County Sch. Dist. (1995, DC Nev) 876 F Supp 1177, 8 ADD
749.
In action alleging that plaintiff was fired because of his disability in violation of 504 of
Rehabilitation Act (29 USCS 794), where questions of fact existed as to whether
particular tasks were essential functions of plaintiff's position and whether plaintiff could
perform those tasks, since determination of essential job functions is fact-specific
inquiry, summary judgment must be denied. Wenner v City of New York Dep't of
Sanitation (1996, SD NY) 14 ADD 983.
Footnotes
Footnote 64. As to the effect of state laws on determinations of what are essential
functions of a position under the Rehabilitation Act, see 182.
Footnote 65. Guinn v Bolger (1984, DC Dist Col) 598 F Supp 196, 36 BNA FEP Cas
506, 38 CCH EPD 35556.
Footnote 66. Hall v United States Postal Service (1988, CA6) 857 F2d 1073, 47 BNA
FEP Cas 1540, 47 CCH EPD 38327.
Footnote 68. Lemere v Burnley (1988, DC Dist Col) 683 F Supp 275, 46 BNA FEP Cas
845, 46 CCH EPD 38001.
Footnote 69. Swann v Walters (1984, DC Dist Col) 35 BNA FEP Cas 1246.
195 Calculating the risk to the individual and others posed by a disability
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Under 501 and 504 of the Rehabilitation Act, in order for an individual with
disabilities 70 to be qualified for a job, 71 a disabled employee must be presently able
to perform the essential functions 72 of the position without a reasonable probability of
substantial injury to himself or others. The risk determination cannot be based merely on
an employer's subjective evaluation or, except in cases of the most apparent nature,
merely on medical reports, but must take into account the individual's work and medical
histories. 73 However, it can be based on the expert testimony of both the employer's
and the employee's physicians, the employee's performance history on the job, and the
tasks involved in that job. 74

Employees were not qualified, because of the risk to themselves, where:
a letter carrier had a history of knee trouble which could have prevented him from
walking the necessary distances over various types of terrain carrying full mailbags
without endangering his health; 75
a postal service employee suffered from uncontrolled hypertension and cardiovascular
disease which prevented him from performing the essential functions of a clerk position
without endangering his own health and safety; 76
an applicant for a police officer position was rejected based on a medical standard that
forbade hiring anyone who had suffered two or more dislocations of the same shoulder,
whether or not the dislocations had been surgically repaired, since individuals covered by
the rule would have a 10- 15% probability of recurrence. 77
Blanket exclusions of all persons suffering a particular disability are generally
unacceptable. However, they may be upheld without regard to individualized
considerations if they are legitimately and directly related to reasonable health and safety
concerns and the ability to perform the essential tasks of the job, and there is no reliable
test to determine whether those persons pose a significant risk, while on duty, to
themselves, coworkers, and bystanders. 78
195 ----Calculating the risk to the individual and others posed by a disability
[SUPPLEMENT]
Case authorities:
Considering nature of risk to patients on whom he performed invasive procedures,
orthopedic surgeon who was infected with HIV was not otherwise qualified to perform as
orthopedic surgeon. Scoles v Mercy Health Corp. (1994, ED Pa) 7 ADD 779.
Footnotes
Footnote 70. As to who is an individual with disabilities, see 184.
Footnote 71. As to who is "qualified," see 192.
Footnote 72. As to determination of essential functions, see 194.
Footnote 73. Mantolete v Bolger (1985, CA9) 767 F2d 1416, 38 BNA FEP Cas 1081, 37
CCH EPD 35455, amd (CA9) 38 BNA FEP Cas 1517, ( 501); E.E. Black, Ltd. v
Marshall (1980, DC Hawaii) 497 F Supp 1088, 23 BNA FEP Cas 1253, 24 CCH EPD
31260, vacated on other grounds (DC Hawaii) 26 BNA FEP Cas 1183, 27 CCH EPD
32199 ( 503).
Footnote 75. Alderson v Postmaster General of U.S. (1984, WD Okla) 598 F Supp 49, 35
Footnote 76. Bey v Bolger (1982, ED Pa) 540 F Supp 910, 32 BNA FEP Cas 1652, 33
CCH EPD 33967.
Footnote 77. Mahoney v Ortiz (1986, SD NY) 645 F Supp 22, 42 BNA FEP Cas 10.
Footnote 78. Davis v Meese (1988, ED Pa) 692 F Supp 505, 47 BNA FEP Cas 828, 49
CCH EPD 38810, affd (CA3) 865 F2d 592, 48 BNA FEP Cas 1894.
For a discussion of the calculation of the risk of harm concerning disabled persons with
contagious diseases, see 196.
196 Which individuals with contagious diseases are qualified

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A person with a contagious disease that constitutes a disability within the meaning of the
Rehabilitation Act, 79 must show that he is qualified 80 to perform the essential
functions 81 of the position in question 82 in order to benefit from the Act's
antidiscrimination prohibitions. In determining whether such an individual is qualified,
the focus should be on reasonable medical judgments, given the state of medical
knowledge about the risk the particular disease poses to the individual and to third
parties. This includes the nature of the risk (how the disease is transmitted), the duration
of the risk measured by how long a carrier may be infectious, the severity of the risk to
third parties, and the probabilities that the disease will be transmitted and will cause
varying degrees of harm. The reasonable medical judgments of public health officials
should be given deference in making these determinations. 83
Thus, in a case under
504, a teacher of the hearing-impaired with AIDS was otherwise qualified to perform
his job because the medical evidence, while preliminary, overwhelmingly indicated that
the contact involved in teaching did not pose a significant risk to others. 84
The U.S. Justice Department has taken the position that, based on Arline, 85
a person
with AIDS or an asymptomatic HIV-infected individual poses little risk of contagion in
most situations. However, there may be instances in which there is a greater possibility
that the AIDS virus could be transmitted, and therefore, in which an HIV-infected
individual is not "otherwise qualified" for the job. An employer should decide the
question of qualifications through an individualized inquiry, based on the facts of each
case. 86
With respect to HIV-related discrimination by government contractors and
subcontractors under 503, the Office of Federal Contract Compliance Programs takes a
position consistent with Arline and the Department of Justice 87 by stating that
contractors seeking to base adverse employment decisions on the risk of HIV
transmission bear a particularly heavy burden to prove that such a threat exists in a
particular employment setting, since medical and epidemiologic evidence indicates that
the HIV virus is not transmitted through casual physical contact. 88
In applying these standards to persons with contagious diseases, courts have concluded
that:
there was no risk that a teacher would communicate tuberculosis to her students; 89
although disabled, State Department foreign service employees infected with the AIDS
virus were not "otherwise qualified," because the possible unsanitary conditions and
less-than-adequate medical care at foreign posts would pose a greater risk of infection to
them; 90
a licensed practical nurse who was fired when he failed to provide his hospital employer
with the results of the test for seropositivity for HIV was not an "otherwise qualified"
individual. The hospital needed to know the nurse's health status since his roommate had
died of AIDS, in order to make a "reasoned and medically sound" employment decision,
establish reasonable accommodation to his condition, protect him from the risk of
disease, provide him with a safe workplace, and monitor his health status to comply with
its infection control policies. 91
196 ----Which individuals with contagious diseases are qualified [SUPPLEMENT]
Case authorities:
Operating room surgical technician who was HIV-positive posed direct threat to health
and safety of patients and was therefore not otherwise qualified, even though risk of
transmission of disease was small, since risk to patient, under present state of medical
knowledge, was of acquiring disease which is incurable and which leads to AIDS which
is fatal. Mauro v Borgess Medical Ctr. (1995, WD Mich) 886 F Supp 1349, 10 ADD
206, 4 AD Cas 737.
Restriction of D.C. firefighter's performance of mouth-to-mouth resuscitation because of
his Hepatitis B (HBV) status violates 29 USCS 794(a) and is enjoined, where there
have been no documented cases of salivary transmission of HBV in 30 years of study,
because D.C. finds it not cost effective to test firefighters for HBV, and it is internally
inconsistent for them to restrict individual firefighter in light of uncontradicted evidence
indicating that no other fire department restricts HBV carriers and that risk of
transmission is remote. Roe v District of Columbia (1993, DC Dist Col) 842 F Supp 563,
4 ADD 240, 2 AD Cas 1632, 64 CCH EPD 42954, corrected (DC Dist Col) 3 AD Cas
20.
Footnotes
Footnote 79. As to whether a contagious disease constitutes a disability, see 190.

Footnote 81. 194.
Footnote 82. 193.
107 S Ct 1913, 42 CCH EPD 36940.
Footnote 84. Chalk v U.S. Dist. Court Cent. Dist. (1987, CA9) 832 F2d 1158, 45 BNA
107 S Ct 1913, 42 CCH EPD 36940.
Footnote 87. OFCCP Federal Contract Compliance Manual Appx 6D subd 4.A.
Footnote 88. OFCCP Federal Contract Compliance Manual Appx 6D subd 5.B.
Footnote 89. Arline v School Bd. (1988, MD Fla) 692 F Supp 1286, 47 BNA FEP Cas
530.
Footnote 90. Local 1812, American Federation of Government Employees v U.S. Dept.
of State (1987, DC Dist Col) 662 F Supp 50, 43 BNA FEP Cas 955, 2 BNA IER Cas 47,
43 CCH EPD 36985.
Footnote 91. Leckelt v Board of Comrs. (1989, ED La) 714 F Supp 1377, 49 BNA FEP
Cas 541, 4 BNA IER Cas 383, 13 BNA OSHC 2086, 49 CCH EPD 38900, affd (CA5)
909 F2d 820, 53 BNA FEP Cas 1136, 5 BNA IER Cas 1089, 54 CCH EPD 40223.
c. Reasonable Accommodation and Undue Hardship [-197- 203]
197 What is reasonable accommodation

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The definition of a "qualified" individual with disabilities under the Rehabilitation Act
encompasses the concept of "reasonable accommodation." 92
Under 501, 93 503, 94 and 504, 95
a federal agency, federal contractor, or
recipient of federal funds must make a reasonable accommodation to the known physical
or mental limitations of an otherwise qualified applicant or employee with disabilities,
unless accommodation would impose an undue hardship 96 on the operation of the
contractor's business or the agency's or recipient's program. Furthermore, a recipient of
federal funds may not deny employment opportunities to a qualified employee or
applicant with disabilities if the basis for the denial is the need to make a reasonable
accommodation. 97
A reasonable accommodation under 504 may require a recipient to bear more than an
insignificant economic cost in making allowances for an individual's disability and to
accept minor inconveniences that do not bear on the individual's ability to perform the
essential duties of the job. 98
Although it did not involve employment discrimination, a Supreme Court decision may
bring into question the validity of the accommodation requirements under 504
described above. According to the Court, 504 (as opposed to 503) was not intended to
impose affirmative action obligations on recipients of federal assistance, and regulations
requiring substantial adjustments in existing programs beyond those necessary to
eliminate discrimination against otherwise qualified individuals would constitute an
unauthorized extension of the statutory obligations. However, the line between lawful
refusal to extend affirmative action and illegal discrimination against disabled persons
will not always be clear, and situations may arise where a refusal to modify an existing
program might become unreasonable and discriminatory. Identifying those instances
continues to be an important responsibility of the administering funding agency. 99
Observation: Both 501 and 503 impose affirmative action requirements on

federal agencies and federal contractors 1 while 504, which governs disability
discrimination by recipients of federal financial assistance does not. This difference
underlies the Supreme Court's distinction between the accommodation requirements
imposed by 503 as opposed to 504.
Employers determining whether an individual with a contagious disease is otherwise
qualified 2 also should, in reaching a determination on qualifications, consider whether
reasonable accommodation would enable the individual to safely perform the job. 3
A person who is not disabled or perceived to be disabled 4 is not entitled to reasonable
accommodation. 5
197 ----What is reasonable accommodation [SUPPLEMENT]
Practice Aids: When must specialized testing, training, or other work procedures be
provided for benefit of qualified disabled employee or applicant to fulfill employer's
reasonable accommodation requirement. 127 ALR Fed 559.
When must specialized equipment or other workplace modifications be provided to
qualified disabled employee or applicant as reasonable accommodation. 125 ALR Fed
629.
What constitutes reasonable accommodation of otherwise qualified employee or
applicant who is disabled by drug or alcohol addiction 122 ALR Fed 111.
Regulations:
Case authorities:
Navy's established policy of refusing to allow employees to use leave time to cover
periods of incarceration did not discriminate on basis of disability against civilian
employee who was incarcerated in part because of acts related to his alcoholism,
particularly as employee did not advise Navy of his alcoholism or seek accommodation
until after he returned to work following incarceration, and since nothing in
Rehabilitation Act (29 USCS 794) prevents employers from holding persons suffering
from alcoholism to same reasonable rules of conduct as other employees. Leary v Dalton
(1995, CA1 Me) 58 F3d 748, 10 ADD 1, 4 AD Cas 1165.
Summary judgment will not be granted highway department on 29 USCS 794(a) claim
of laborer, where laborer injured back, was moved around to various light-duty positions
but was ultimately terminated when new superintendent stated he had no light-duty work
for laborers, because court cannot say as matter of law (1) whether heavy lifting is
essential function of laborer job, (2) what constitutes heavy lifting, (3) whether plaintiff
was capable of performing that function, and (4) whether employer could reasonably
accommodate plaintiff under established standards. Henchey v Town of North Greenbush
(1993, ND NY) 831 F Supp 960, 2 ADD 1147, 2 AD Cas 1232.
Blind employee of state agency was given reasonable accommodation when he was
allowed to use accrued leave credits and to "borrow" future leave credits in order to
attend guide dog training; employee was not denied reasonable accommodation when he
was denied paid leave without use of leave credits since that would have required
employer to go beyond what was reasonable. Nelson v Ryan (1994, WD NY) 860 F Supp
76, 7 ADD 594, 3 AD Cas 857.
Blind employee's action against employer under 29 USCS 794 must fail, even though
he asserts that he should have been supplied with paid leave for purposes of training new
guide dog, because employee was reasonably accommodated by policy allowing him to
use his sick, personal, or annual leave, and to borrow against future accrued leave credits
if necessary. Nelson v Ryan (1994, WD NY) 860 F Supp 76, 7 ADD 594, 3 AD Cas 857.
Registered nurse must be reinstated immediately in equivalent position with all

accumulated salary rights and benefits as if she had been continuously employed, where
nurse was terminatednot long after returning to work after back surgery and being
placed on 12-hour shift on Progressive Care Unitby new clinical coordinator who only
knew that nurse's 2 months on light duty had expired but that she could not perform all
duties of non-handicapped registered nurse, because she was obviously fired due to her
handicap, and hospital did not make reasonable accommodation for nurse with more than
10 years on job and good work record, whose only limitation was inability to do heavy
lifting, since hospital was advertising for nurses to fill positions on wards having shorter
shifts and less lifting when it fired plaintiff. Tuck v HCA Health Servs. (1992, MD Tenn)
842 F Supp 988, affd (CA6 Tenn) 7 F3d 465, 3 ADD 187, 2 AD Cas 1349, 62 CCH EPD
Employer is not required to accommodate handicapped individual in manner that would
violate rights of other employees under legitimate collective bargaining agreement.
Mason v Frank (1994, CA8 Mo) 32 F3d 315, 6 ADD 11, 3 AD Cas 835, reh den, without
op (1994, CA8 Mo) 1994 US App LEXIS 27142.
Defendant United States Merchant Marine Academy violated 504 of Rehabilitation Act
(29 USCS 794) by disenrolling student solely on basis of his diabetes without making
any attempt to reasonably accommodate his disability and without making individualized
inquiry into particular facts of student's case. Lane v Pena (1994, DC Dist Col) 867 F
Supp 1050, 7 ADD 1063.
Essential function of any government job is ability to appear for work and to complete
assigned tasks within reasonable period of time; hence, 29 USCS 791 does not obligate
Department of Justice (DOJ) to retain U.S. Attorney's Office employee with disability,
even though DOJ has not offered employee work at home or reassignment to another
position as accommodation, where her performance over 6-year period shows that she is
not able to work regular hours and her prolonged, frequent, and unpredictable absences
render her unqualified for any government job. Carr v Reno (1994, App DC) 5 ADD
521, 3 AD Cas 434.
Veterans' Administration which employed plaintiff in hospital as housekeeping aide had
no legal duty to alter plaintiff's work schedule to accommodate his unpredictable
absences. Jackson v Administrator of Veterans Affairs (1993, ND Ala) 7 ADD 1197, 3
AD Cas 620, affd (1994, CA11 Ala) 22 F3d 277, 5 ADD 440, 3 AD Cas 483, 8 FLW
Fed C 265, reh, en banc, den (1994, CA11 Ala) 30 F3d 1500.
Government attorney with mental illness and personality disturbance which impaired his
ability to perform essential elements which defined his grade level was not qualified
individual with disability under 501 of Rehabilitation Act (29 USCS 791) for
purposes of challenging his demotion to lower grade since no reasonable accommodation
would have allowed him to perform essential elements of higher grade position, and
accommodations proposed by attorney would have merely transformed his position into
same type of job as lower level position to which he was demoted. Bolstein v Reich
(1995, DC Dist Col) 8 ADD 983, 3 AD Cas 1761.
Initial burden of proof lies with employee to establish that federal agency has
discriminated against him in violation of 501 (29 USCS 791), and FDIC employee
has satisfied prima facie elements of case where it was not contested that plaintiff was
handicapped and that defendant was aware of his handicap, and plaintiff has shown that
his evaluations indicated that he performed very well and was qualified for advancement,
but, despite plaintiff's repeated requests, employer failed to accommodate plaintiff's
handicap in way that would assist him in effectively competing for promotions. Meisser v
Hove (1994, ND Ill) 7 ADD 434, amd (1994, ND Ill) 1994 US Dist LEXIS 16004.
If reasonable accommodation can enable otherwise qualified employee with disability to
perform essential functions of job, employer must provide it; however, accommodation is
not reasonable if it either imposes undue financial and administrative burdens or requires
fundamental alteration in nature of program, and employer is not required to
accommodate employee with disability by eliminating one of essential functions of job;
moreover, fact that employer could provide different set of reasonable accommodations
or more accommodations does not establish that accommodations provided are
unreasonable or that additional accommodations are necessary. Misek-Falkoff v IBM
Corp. (1994, SD NY) 5 ADD 569, 3 AD Cas 449.
In action against Secretary of Navy brought by employee of Philadelphia Naval Shipyard
(PNSY) who had sustained work-related back injury and was receiving benefits under
Federal Employees Compensation Act (FECA) (5 USCS 8101 et seq.), which alleged
that PNSY had failed to make reasonable accommodation for his disability in violation of
29 USCS 791, 794 in that PNSY had assigned employee to series of temporary
details, including some positions inconsistent with his medical restrictions, rather than
assigning him to appropriate permanent position, summary judgment will be granted for
employee where (1) Secretary neither argues nor offers evidence to show that assigning
employee to permanent position would have been unreasonable or would have imposed
undue hardship on Navy; (2) fact that, from 1977 until at least 1985, PNSY had policy of
reassigning workers with permanent or indefinite medical restriction to appropriate
permanent job is substantial evidence that such policy is reasonable accommodation and
does not create undue hardship; and (3) fact that full-time employees were hired to
replace plaintiff in two of his temporary positions is evidence that permanent positions
consistent with his medical restrictions were available. Taylor v Secretary of Navy (1994,
ED Pa) 5 ADD 629, 3 AD Cas 497.
In action against Secretary of Navy brought by employee of Philadelphia Naval Shipyard
(PNSY) who had sustained work-related back injuries and was receiving benefits under
Federal Employees Compensation Act (FECA) (5 USCS 8101 et seq.), which alleged
that PNSY had failed to make reasonable accommodation for his disability in violation of
501 and 504 of Rehabilitation Act (29 USCS 791, 794) in that PNSY had
assigned employee to series of temporary details, including some positions inconsistent
with his medical restrictions, rather than assigning him to appropriate permanent
position, Federal District Court is not precluded by FECA from reviewing employee's
FECA-based light duty job assignments under Rehabilitation Act. Taylor v Secretary of
Navy (1994, ED Pa) 5 ADD 629, 3 AD Cas 497.
In employment discrimination cases under 504 of Rehabilitation Act (29 USCS 794)
and ADA (42 USCS 12101 et seq.), employee has burden of showing that, assuming
that employee cannot perform essential functions of job as employee finds it, employee
could do so with reasonable accommodation on employer's part. Carrozza v Howard
County (1994, DC Md) 4 ADD 842.
Plaintiff with disability alleging discrimination by employer in violation of 29 USCS
794 has initial burden of coming forward with at least facial showing that disability can
be accommodated. Misek- Falkoff v IBM Corp. (1994, SD NY) 5 ADD 569, 3 AD Cas
449.
Rehabilitation Act (29 USCS 701 et seq.) and its implementing regulations do not
impose upon employers duty to find new positions for employees who are no longer able
to perform essential functions of their jobs due to disability; thus, with respect to
Rehabilitation Act claim by former GS-1811 criminal investigator/deputy marshal with
hepatitis-B seeking full-time position as either GS-1811 criminal investigator, which
position was considered likely to involve violent altercations, or GS-1810 general
investigatorwhose physician considered him physically qualified to serve if assigned to
duties where he was unlikely to be involved in violent physical altercation which might
cause others to become contaminated with his bloodU.S. Marshals Service is not
required, as matter of reasonable accommodation under former 29 CFR 1613.704(b),
not only to place former marshal in GS-1810 position which would be different from
position he formerly held, but to modify staffing policies which called for all GS-1810
positions to be filled by part-time employees and to restructure multiple existing
positions into single full-time GS-1810 position. Fedro v Reno (1994, CA7 Wis) 4 ADD
850, 3 AD Cas 150.
Rehabilitation Act (29 USCS 701 et seq.) requires employer to grant request for
accommodation where accommodation in question is reasonable and makes it possible
for employees with disabilities to (1) perform essential functions of job in question, (2)
pursue therapy or treatment for their disabilities, or (3) enjoy privileges and benefits of
employment equal to those enjoyed by employees who do not have disabilities; under
certain circumstances, reasonable accommodation may even include requirement that
employer alter existing policies or procedures that it would not change for employees
who do not have disabilities; modifying work schedule to allow employee to work
part-time instead of full-time or to work different hours serves purposes of Act if
modification makes it possible for employees to perform jobs that they would otherwise
be incapable of doing because of disability, but same is not true of converting part-time
job into full-time job. Fedro v Reno (1994, CA7 Wis) 4 ADD 850, 3 AD Cas 150.
Rehabilitation Act (29 USCS 701 et seq.) requires federal employers to make
affirmative efforts to overcome disabilities caused by handicaps. Fedro v Reno (1994,
CA7 Wis) 4 ADD 850, 3 AD Cas 150.
Second element of plaintiff's prima facie case for claims arising out of 29 USCS 794
requires showing that plaintiff is otherwise qualified to receive benefits in question;
however, in determining whether plaintiff has sufficiently alleged this element, under
both case law and language of 45 CFR 84.3(k) it is only in employment cases that
requirement of reasonable accommodation of persons with disabilities applies. Oxford
House v City of Albany (1994, ND NY) 5 ADD 595, motion den (1994, ND NY) 5
ADD 558.
Section 501 of Rehabilitation Act (29 USCS 791), which applies only to federal
employers rather than to federal grantees generally, goes beyond reasonable
accommodation requirement of 504 of Act (29 USCS 794) by requiring federal
employers to take affirmative action with respect to employment of individuals with
disabilities. Taylor v Secretary of Navy (1994, ED Pa) 5 ADD 629, 3 AD Cas 497.
U.S. Postal Service has duty to reasonably accommodate employee's disability, but it is
not required to accommodate poor relationship skills which are unrelated to employee's
disability. Warren v Runyon (1995, ND Ill) 10 ADD 223.
Under 29 USCS 794, employer has burden of proving inability to accommodate

employee with disability and/or that accommodation would impose undue hardship on
employer. Taylor v Secretary of Navy (1994, ED Pa) 5 ADD 629, 3 AD Cas 497.
Program accessibility and reasonable individual accommodation are separate
requirements, and with regard to requirement that programs be made readily accessible, it
is no defense that to do so would create undue financial burden, although provision
requiring public entities to make reasonable accommodations to known physical or
mental limitations of disabled individuals contains financial burden exception. Putnam v
Oakland Unified Sch. Dist. (1995, ND Cal) 15 ADD 1361.
Footnotes
Footnote 92. 192.
Footnote 93. 29 CFR 1613.704(a).
Footnote 94. 41 CFR 60.741.6(d).
Footnote 95. 28 CFR 41.53 (Department of Justice); 45 CFR 84.12(a) (Department
of Health and Human Services); 45 CFR 1151.32(a) (National Foundation on the Arts
and Humanities); 49 CFR 27.33(a) (Department of Transportation).
Footnote 96. As to what is an undue hardship, see 199.
Footnote 97. 45 CFR 84.12(d) (Department of Health and Human Services); 49 CFR
27.33(d) (Department of Transportation).
Forms: Allegation in complaint, with prayer for reliefBy employee with temporary
handicap (back injury) against former employer which is recipient of federal
fundsFailure to accommodate as discrimination [FRCP Rule 57; 28 USCS 2201,
2202; 29 USCS 794; 42 USCS 1983]. 12 Federal Procedural Forms, L Ed, Job
Footnote 99. Southeastern Community College v Davis (1979) 442 US 397, 60 L Ed 2d
980, 99 S Ct 2361, 20 CCH EPD 30003.
Footnote 2. 196.

Footnote 4. As to who is perceived to be disabled, see 189.
Footnote 5. Alderson v Postmaster General of United States (1984, WD Okla) 598 F
198 Types of reasonable accommodation

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Under 501 6 and 504 7 reasonable accommodations may include, but are not
limited to: (1) making facilities readily accessible to and usable by disabled persons; and
(2) job restructuring, in the form of part-time or modified work schedules, acquisition or
modification of equipment or devices, the provision of readers or interpreters, and other
similar actions.
For instance, a federal agency reasonably accommodated a blind attorney, even though it
refused to transfer him to another position, where it provided the employee with
secretary-readers, his supervisor met with him at least every two weeks to discuss his
work and to assist him, and the agency offered to give him tape recorders or other
equipment which might have assisted him in completing his tasks. 8
However, an education agency did not meet its duty of reasonable accommodation under
504 where it failed to consider alternatives that would have eliminated a bus driving
requirement for an otherwise qualified, but disabled, teaching candidate. 9
It is also a prohibited practice under 504 for a federal fund recipient employing 15 or
more persons to deny appropriate auxiliary aids to qualified disabled persons with
impaired sensory, manual, or speaking skills if the denial would discriminatorily impair
or exclude their participation in federally funded programs. Such auxiliary aids may
include brailled and taped materials, qualified interpreters, readers, and telephonic
devices, but not necessarily devices or services of a personal nature. A recipient
employing fewer than 15 persons may be required to provide auxiliary aids when this
would not significantly impair its ability to provide benefits or services. 10
Providing a "part-time or modified work schedule" as an accommodation nevertheless
implies some type of schedule or regularity. Thus, there is no realistic accommodation
for an employee who is unable to accomplish regular and predictable attendance. 11
Also, a federal agency has no obligation to provide a disabled employee with a regular
modified special work schedule for an extended or indefinite period of time when to do
so would imposes an undue hardship or unreasonable administrative burden on it. 12
The effect of collective bargaining agreements on the duty to make a reasonable
accommodation through job restructuring is discussed elsewhere. 13

198 ----Types of reasonable accommodation [SUPPLEMENT]
629.
Regulations:
Case authorities:
Physician, whose license to practice was revoked for practicing while his ability was
impaired by mental illness, has 29 USCS 794(a) claim denied summarily, even though
substantial evidence was presented that he could safely practice if he were supervised, his
blood lithium level were monitored, and his continued relationship with psychiatrist were
ensured, because under Rehabilitation Act (29 USCS 701 et seq.) "reasonable
accommodation," in context of permitting physician to practice medicine, does not
require professional licensing authorities, against their best judgment, to play Russian
roulette with public health. Ramachandar v Sobol (1993, SD NY) 838 F Supp 100, 3
ADD 102.
District court improperly granted summary judgment in favor of defendant employer in
Title VII action which alleged that plaintiff had been discharged on account of his race,
based on employer's contention that plaintiff had been fired for excessive absenteeism,
where plaintiff had alleged that he had developed nervous condition due to intense noise
in his working environment, that he repeatedly requested transfer to less noisy area, that
his requests were all denied, that employer's failure to accommodate plaintiff forced him
to miss work on numerous occasions, and that employer had made accommodations for at
least one white employee with similar condition by moving him into office position,
because issue of whether employer discriminated against plaintiff in failing to
accommodate his nervous condition was genuine issue of material fact. Webb v St. Louis
Post-Dispatch (1995, CA8 Mo) 51 F3d 147, 67 BNA FEP Cas 607, reh, en banc, den
(1995, CA8) 1995 US App LEXIS 10506.
Footnotes
Footnote 6. 29 CFR 1613.703(b).
Footnote 7. 45 CFR 84.12(b) (Department of Health and Human Services); 45 CFR
1151.32(b) (National Foundation on the Arts and Humanities); 49 CFR 27.33(b)
Footnote 8. Lutter v Fowler (1986, DC Dist Col) 41 BNA FEP Cas 1227, 39 CCH EPD
36052.
Footnote 9. Fitzgerald v Green Valley Area Education Agency (1984, SD Iowa) 589 F
1592, 57 CCH EPD 41215, affd (CA2) 59 BNA FEP Cas 246. Supp 1130, 39 BNA
Footnote 13. 203.
199 What is "undue hardship"

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Go to Supplement
Under 501, 14 503, 15 and 504 16
of the Rehabilitation Act, an employer need
not reasonably accommodate an employee or applicant if the employer can show that the
accommodation would impose an undue hardship on its business.
Specifically, under 501 17 and 504 18 the factors to be considered in determining
whether an accommodation would impose an undue hardship include:
(1) the overall size of the employer's program with respect to the number of employees,
number and type of facilities, and size of the budget;
(2) the type of operation, including the composition and structure of the employer's work
force; and
(3) the nature and cost of the accommodation needed.
The 503 regulations provide that, in determining the extent of a contractor's
accommodation obligations, business necessity and financial costs and expenses, among
other factors, may be considered. 19
Furthermore, a recipient of federal funds under the Education of the Handicapped Act
(EHA) 20 has a greater duty of reasonable accommodation than do recipients of federal
aid in general, because the act requires recipients of EHA funds to take positive steps to
employ and advance in employment qualified disabled persons. 21
Finally, it is up to the employer to demonstrate undue hardship. Although a federal
agency is not required to accommodate an employee by eliminating an essential function

of the job, 22 it cannot satisfy its reasonable accommodation obligation merely by
assuming that the only way to accommodate the employee is to eliminate the function. It
must show that the accommodation requires the elimination of the function, and the
resulting undue hardship. 23
199 ----What is "undue hardship" [SUPPLEMENT]
629.
Regulations:
Case authorities:
Hospital did not violate 504 of Rehabilitation Act (29 USCS 794) when it terminated
HIV-positive neurosurgical resident based on risk of transmission of disease during
performance of exposure-prone procedures, since such individual posed significant risk
to health or safety of patients that could not be eliminated by reasonable accommodation,
and therefore resident was not otherwise qualified individual within meaning of Act. Doe
v University of Md. Medical Sys. Corp. (1995, CA4 Md) 50 F3d 1261, 9 ADD 1048, 4
AD Cas 379.
Rehabilitation Act (29 USCS 701 et seq.) claim of involuntarily released Army
Active Guard Reserve major must fail, even though he does not ask court to alter Army's
physical standards for service but contends Army discriminated against him by failing to
"reasonably accommodate" his ulcer and allow him third opportunity to run 2 miles in
required time, because granting his request for reasonable accommodation would
nevertheless require impermissible encroachment on Army's authority by court,
especially as it relates to personnel decisions. Coffman v Michigan (1995, WD Mich) 914
F Supp 172, 13 ADD 245.

Postal Service met its burden of proving that it could not reasonably accommodate
employee who had suffered back injury; employee's own evidence concerning his limited
physical abilities suggested that he could not perform physical functions that would be
required even with his proposed accommodations, and physician testified after examining
employee and reviewing his medical records that he believed employee was medically
unsuitable for duties of distribution clerk, could not keep pace with flow of mail on
workroom floor, and could not work on workroom floor without endangering himself.
Mason v Frank (1994, CA8 Mo) 32 F3d 315, 6 ADD 11, 3 AD Cas 835, reh den, without
op (1994, CA8 Mo) 1994 US App LEXIS 27142.
Requiring federal agency to accommodate temporary employee's unpredictable absences
related to his disability places on agency burden of making last-minute provisions for
employee's work to be done by someone else, which is undue hardship on agency.
Jackson v Veterans Admin. (1994, CA11 Ala) 22 F3d 277, 5 ADD 440, 3 AD Cas 483, 8
FLW Fed C 265.
Agency established that accommodation suggested by aircraft mechanic who had injured
back would impose undue hardships on its operations; it was mandatory that appellant be
able to climb, bend, lift, push, walk, crawl, kneel, carry, and work from elevated areas
using ladders or scaffolding in order to perform duties, and that it would impose undue
burden on other employees if agency were to modify functional requirements of position
to extent necessary for appellant because of his medical restrictions. Casillas v
Department of the Air Force (1994, MSPB) 64 MSPR 627.
Evidence supported administrative decision to terminate employment of police sergeant
who was rendered paraplegic in skiing accident, despite his request for reasonable
accommodation of disability, where, because all officers in department were required at
times to perform all physical duties of police work and sergeant could not, for example,
subdue arrestees or prisoners, sergeant was not otherwise qualified for work. Ensslin v
Township of N. Bergen (1994, App Div) 275 NJ Super 352, 646 A2d 452, 3 AD Cas
1266.
Where disabled Postal Service employee qualified under collective bargaining agreement
for permanent reduced duty work, reassignment to such position was reasonable
accommodation which Postal Service was required to make under Rehabilitation Act (29
USCS 794), and Postal Service violated Act by terminating employee instead of
reassigning her. Masterson v Runyon (1994, ED Pa) 7 ADD 971, 3 AD Cas 1573.
District Court properly rendered judgment in favor of defendants in employment
discrimination action under 29 USCS 794which judgment is based on Court's
determination that plaintiff school van drivers, who have diabetes and are dependent on
insulin and who had been demoted because of their medical condition, are not otherwise
qualified and cannot be reasonably accommodatedwhere, inter alia, Court did not
clearly err in crediting opinion of one doctor who testified that drivers had appreciable
risk of experiencing either hypoglycemia, which could result in sudden loss of
consciousness, or hyperglycemia, which could create increased risk of sudden and
unexpected loss of vision or blurred consciousness, over contrary testimony of another
doctor. Wood v Omaha Sch. Dist. (1994, CA8 Neb) 5 ADD 452, 3 AD Cas 481.
Employer is not required to accommodate one employee in manner that usurps legitimate
rights of other employees, but where preference is permissible, employer can give benefit
of preference to handicapped employee; merely because accommodation would require
change in supposedly neutral standard operating procedure does not render it
unreasonable or unduly burdensome, since that is essence of reasonable accommodation.
Meisser v Hove (1994, ND Ill) 7 ADD 434, amd (1994, ND Ill) 1994 US Dist LEXIS
16004.
Footnotes
Footnote 14. 29 CFR 1613.704(a).
Footnote 15. 41 CFR 60-741.6(d).
Footnote 16. 28 CFR 41.53 (Department of Justice); 45 CFR 84.12(a) (Department
of Health and Human Services); 45 CFR 1151.32(a) (National Foundation on the Arts
and Humanities); 49 CFR 27.33(a) (Department of Transportation).
Footnote 17. 29 CFR 1613.704(c).
Footnote 18. 45 CFR 84.12(c) (Department of Health and Human Services); 45 CFR
1151.32(c) (National Foundation on the Arts and Humanities); 49 CFR 27.33(c)
Footnote 19. 41 CFR 60-741.6(d).
Footnote 21. Fitzgerald v Green Valley Area Education Agency (1984, SD Iowa) 589 F
Footnote 22. As to what is an essential function, see 194.
Footnote 23. Hall v United States Postal Service (1988, CA6) 47 BNA FEP Cas 1540.
200 Employee and employer responsibilities in effectuating a reasonable

accommodation
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While an employer has a duty to accommodate an otherwise qualified individual with
disabilities, 24 there are also some obligations on the individual requiring the
accommodation. An employer's duty to provide a reasonable accommodation exists only
for known disabilities. Therefore, a person with disabilities must make a non-obvious
disability known to the employer. He cannot "lie in ambush" with a hidden disability and
subsequently claim a failure to accommodate. 25
Observation: An employer may not be able to ignore the need for accommodation
completely until it is brought to its attention if it should have been aware of a disabling
condition because of the employee's behavior or other signs.
When an employee tells the employer that a further accommodation is needed based on
the employee's perception of the severity of her disability, and the employer has
previously made some accommodations for the disability, then the employee does not
have to submit written medical records in order to obtain a further accommodation. 26
200 ----Employee and employer responsibilities in effectuating a reasonable
accommodation [SUPPLEMENT]
629.
Case authorities:
Once appellant has proved by preponderance of evidence that agency has committed
handicap discrimination by failing to provide reasonable accommodation, agency may
avoid liability for compensatory damages under Civil Rights Act (42 USCS
1981a(a)(3)) by demonstrating that it made good faith effort to accommodate appellant's
handicapping condition. Hocker v Department of Transp. (1994, MSPB) 63 MSPR 497.
State vocational rehabilitation agency violated 504 of Rehabilitation Act (29 USCS
794) by closing case file on individual because of her lack of cooperation and failure to
maintain contact with agency, without making reasonable accommodations, such as
meeting with her at home or extending evaluation process, where individual alleged that
she suffered from traumatic brain injury and that this disability caused her to be
uncooperative and belligerent with others at times. Manley v Office of Vocational
Rehabilitation (1994, Pa Cmwlth) 654 A2d 25, 8 ADD 1203.
In action by diabetic police officer employed by railroad, alleging that railroad violated
504 of Rehabilitation Act (29 USCS 794) by failing to reasonably accommodate his
disability, Railway Labor Act (45 USCS 151 et seq.) did not preempt 504 claim
since officer was not seeking to resolve minor dispute arising out of collective bargaining
agreement, but rather was seeking to enforce federal statutory right. Degutis v
Consolidated Rail Corp. (1994, ND Ill) 6 ADD 1086, 3 AD Cas 1190, 147 BNA LRRM
2470.
In action by telephone company employee with visual impairment alleging that her
employer had violated her rights with respect to reasonable accommodation under 504
of Rehabilitation Act (29 USCS 794), employer's motion for judgment as matter of law
is granted where employee presented no evidence to jury that employer received federal
financial assistance and thus failed to prove essential element of her claim. Flores v
Puerto Rico Tel. Co. (1994, DC Puerto Rico) 6 ADD 695.
Footnotes
Footnote 24. 197.
Footnote 25. Dowden v Tisch (1988, ED Tex) 685 F Supp 153, 46 BNA FEP Cas 1474.
Footnote 26. Langon v HHS (1992, App DC) 959 F2d 1053, 58 BNA FEP Cas 672, 58
CCH EPD 41385.
201 When are accommodations "reasonable"

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Depending on the particular statute and entity involved, the degree of accommodation
considered reasonable, and the amount of hardship considered "undue" may vary. For
example, while a private sector employer need not incur more than de minimis cost in
attempting accommodation under the Rehabilitation Act, the same is not true for federal
agencies. Thus, the U.S. Mint failed to meet its reasonable accommodation obligation
when it terminated disabled employees without trying to accommodate them, where it
had no employees with specialized training in helping the disabled, and where it failed to
seek outside professional assistance. 27 However, the Department of Education
reasonably accommodated a blind plaintiff's disability by providing him with readers and
special equipment and decreasing his workload, even though the plaintiff had requested a
full-time reader of his choice, more technologically advanced equipment, and easier
access to additional office space. 28 Also, a federal agency that reorganized for the
purpose of improving face-to-face interaction did not have to accommodate an
employee's request to work off-site or freelance at home. 29 A federal agency also does
not have to assign an employee's essential function to coworkers as an accommodation to
the employee when the productivity of the agency's overall operation would suffer as a
result. 30
Furthermore, an employer covered by the Rehabilitation Act is not obligated to provide
every accommodation an employee with disabilities may request, but only reasonable
accommodations necessary for the performance of essential functions. 31 Thus, an
accommodation is not "reasonable" if it requires eliminating one of the essential
functions of the relevant job, 32 because an individual with disabilities is not "qualified"
under the Rehabilitation Act if there is a factual basis for concluding that accommodating
that individual would require modification of essential job functions. 33
Observation: The question that must be answered before an employer can refuse to
eliminate a job duty in an accommodation is what duties are essential to the job,
because it may be that a reasonable modification of a nonessential element of a job
would accommodate the employee and still not detract from the main object of the
employee's work.
Employers may have obligations that outweigh the requirement of a reasonable
accommodation. For example, a federal agency does not have to suspend its criminal
investigation into an employee's alleged drug transactions in order to give the employee
the opportunity to enter a rehabilitation program, if doing so would compromise the
agency's legitimate interest in investigating criminal behavior by its employees. 34
It is also not reasonable to require a federal agency to accommodate an employee by
allowing the employee to work only when an illness permits, because regular and
predictable attendance at a specified time is an essential requirement for any position. 35
In addition, an employee who cannot perform modified job duties that were given in
accommodation of a disability can be lawfully discharged. Thus, a firefighter with HIV
disease who was unable to perform modified job duties without creating a confrontational
atmosphere with a superior was lawfully terminated on a basis other than a disability. 36
Caution: Under the Americans with Disabilities Act, the concept of de minimus cost
is not the standard for determining whether business considerations limit an employer's
duty to accommodate. Rather, an employer is required to provide accommodation to a
person with a disability unless to do so would result in undue hardship, taking into
account a number of business-related factors. 37
201 ----When are accommodations "reasonable" [SUPPLEMENT]
629.
Case authorities:
Employer's failure to accommodate employee under Rehabilitation Act does not amount
to constructive discharge of that employee unless employer intended to force employee to
resign. Johnson v Shalala (1993, CA4 Md) 991 F2d 126, 1 ADD 911, 2 AD Cas 730, 61
CCH EPD 42192.
In employment discrimination action by former Postal Service employee under 501
and 504 of Rehabilitation Act (29 USCS 791, 794), once plaintiff produced evidence
sufficient to make facial showing that reasonable accommodation was possible, burden
shifted to federal employer to prove inability to accommodate, and after employer
presented evidence that plaintiff could not perform job even with reasonable
accommodation, burden shifted to plaintiff to produce evidence concerning his individual
capabilities to rebut employer's evidence. Mason v Frank (1994, CA8 Mo) 32 F3d 315, 6
ADD 11, 3 AD Cas 835, reh den, without op (1994, CA8 Mo) 1994 US App LEXIS
27142.
Agency who found employee disabled by reason of physical inability to perform skills of
carpenter position was not obligated to offer him training and opportunity to improve his
typing skills to requisite level to qualify him for clerical position; training was requested
as means to accommodate lack of qualifications which were unrelated to appellant's
physical limitations, and Rehabilitation Act only requires employer to make reasonable
accommodation to known physical or mental limitations of otherwise qualified individual
with disability. Sheehan v Department of the Navy (1995, MSPB) 66 MSPR 490.
In action by former police officer alleging that police department officials violated ADA
(42 USCS 12101 et seq.) and 504 of Rehabilitation Act (29 USCS 794) by
placing officer on disability retirement because of lost use of his upper left arm, motion
to dismiss for failure to state claim is denied where officer alleged that he was qualified
individual with disability, that he could perform and had performed essential functions of
police officer position safely, competently, and efficiently despite his disability, and that
defendants had failed to reasonably accommodate his disability by ousting him from his
light-duty position and placing him on disability retirement. Champ v Baltimore County
(1994, DC Md) 6 ADD 343, 3 AD Cas 707.
In action under 504 of Rehabilitation Act (29 USCS 794), Federal District Court's
conclusions with regard to whether accommodations made by defendants are reasonable
involves application of law to undisputed factual determinations, and is thus reviewable
de novo. Wood v Omaha Sch. Dist. (1994, CA8 Neb) 5 ADD 452, 3 AD Cas 481.
In determining what kinds of accommodations are reasonable for purposes of 504 of
Rehabilitation Act (29 USCS 794), courts are permitted to take into account
reasonableness of cost of any necessary workplace accommodation, availability of
alternatives therefor, or other appropriate relief in order to achieve equitable and
appropriate remedy; unreasonable accommodation is one which would impose undue
hardship on operation of program in question. Wood v Omaha Sch. Dist. (1994, CA8
Neb) 5 ADD 452, 3 AD Cas 481.
In some employment discrimination cases under 504 of Rehabilitation Act (29 USCS
794), plaintiff may be able to furnish reliable evidence of particular reasonable
accommodation without any expert opinion testimony from vocation, medical, or other
experts, as where plaintiff or witness has testimonial knowledge that particular appliance,
some particular software, or identifiable training program is available that would enable
plaintiff to perform job despite plaintiff's disability. Carrozza v Howard County (1994,
DC Md) 4 ADD 842.
Reasonable accommodation does not require reassignment of disabled employee if to do
so would be inconsistent with employer's collective bargaining agreement. Aka v
Washington Hosp. Ctr. (1996, DC Dist Col) 16 ADD 240.
Footnotes
Footnote 27. American Federation of Government Employees, Local 51 v Baker (1987,
ND Cal) 677 F Supp 636, 43 BNA FEP Cas 1393, 43 CCH EPD 37149.
Footnote 28. Carter v Bennett (1987, DC Dist Col) 651 F Supp 1299, 42 BNA FEP Cas
1582, 45 CCH EPD 37599, affd (App DC) 840 F2d 63, 46 BNA FEP Cas 1, 45 CCH
EPD 37788.
Footnote 29. Larranaga v Department of Commerce (1991, DC Dist Col) 1991 US Dist
LEXIS 15519.
Footnote 30. Gilbert v Frank (1991, CA2) 949 F2d 637, 57 BNA FEP Cas 706, 57 CCH
EPD 41106.
Footnote 31. As to what is an essential function, see 194.
Footnote 32. Jasany v United States Postal Service (1985, CA6) 755 F2d 1244, 37 BNA
FEP Cas 210, 36 CCH EPD 35070; Trimble v Carlin (1986, ED Pa) 633 F Supp 367, 40
BNA FEP Cas 1101.
Footnote 33. Strathie v Department of Transp. (1983, CA3) 716 F2d 227, 32 BNA FEP
Cas 1561, 32 CCH EPD 33808.
Footnote 34. Taub v Frank (1992, CA1) 957 F2d 8, 58 BNA FEP Cas 159, 58 CCH EPD
41311.
Footnote 35. 194.
Footnote 36. Severino v North Ft. Myers Fire Control Dist. (1991, CA11) 935 F2d 1179,
Footnote 37. 226.
202 For which positions must accommodations be made

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There is a difference of opinion as to whether an employer's duty to accommodate an
employee's disability under the Rehabilitation Act is limited to the position the disabled
employee already occupies, or whether the duty encompasses reassignment or transfer.
One opinion is that a government employer does not have to reassign a plaintiff to
another job as a reasonable accommodation, even if the plaintiff has been fired solely on
the basis of his alleged disability, 38 because the Act only mandates reasonable
modifications to be made in a disabled employee's present position. 39 Therefore, the
Postal Service was not obligated to accommodate a custodian by creating a "light duty"
position for him in the maintenance craft at the employee's assigned facility. 40
Similarly, under 504 a municipal employer need not accommodate employees who no
longer can perform the essential functions of their jobs, by finding or creating new jobs
for them. 41
However, a contrary opinion holds that a federal employer must attempt to accommodate
a disabled employee with a reassignment to a position he can satisfactorily perform. 42
For example, when a nonprobationary employee is unable to perform the essential
functions of the job, a federal agency must reassign the employee to a vacant position
within the same commuting area, at the same grade level, which the employee would be
able to perform, with a reasonable accommodation if necessary, unless the reassignment
would pose an undue hardship on the agency's operations. Reassignment to a vacant
lower graded position is required when a position at the same grade level is unavailable.
43
The obligation to provide a reasonable accommodation to applicants extends only to
giving the applicant fair consideration for the job he has applied for, and does not extend
to other positions. 44
The effect of collective bargaining on the duty to make a reasonable accommodation
through reassignments is discussed elsewhere. 45
202 ----For which positions must accommodations be made [SUPPLEMENT]
629.
Footnotes
Footnote 38. Alderson v Postmaster General of United States (1984, WD Okla) 598 F
Footnote 39. Fourth CircuitCarty v Carlin (1985, DC Md) 623 F Supp 1181, 39 BNA
FEP Cas 1217, 40 CCH EPD 36377
Sixth CircuitWimbley v Bolger (1986, WD Tenn) 642 F Supp 481, 40 BNA FEP Cas
1855, 41 CCH EPD 36616, affd without op (CA6) 831 F2d 298, 52 BNA FEP Cas
1184.
Seventh CircuitFowler v Frank (1988, ED Mich) 702 F Supp 143, 48 BNA FEP Cas
1225.
Eleventh CircuitBlack v Frank (1990, SD Ala) 730 F Supp 1087, 52 BNA FEP Cas
1059, 53 CCH EPD 39904.
Footnote 40. Carter v Tisch (1987, CA4) 822 F2d 465, 44 BNA FEP Cas 385, 43 CCH
EPD 37201.
1592, 57 CCH EPD 41215, affd (CA2) 59 BNA FEP Cas 246; Rhone v United States
Dept. of Army (1987, ED Mo) 665 F Supp 734, 46 BNA FEP Cas 1133, 44 CCH EPD
37511.
Footnote 43. 29 CFR 1614.203(g).
Footnote 44. Dexler v Carlin (1986, DC Conn) 40 BNA FEP Cas 633, 40 CCH EPD
36345.
Footnote 45. 203.
203 Effect of collective bargaining on duty to accommodate

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While the Rehabilitation Act does not contain an express exception from its disability
discrimination prohibitions based on the operation of a bona fide seniority system, as
does Title VII, 46 a federal employer may be excused from its obligation to
accommodate an individual with disabilities if doing so would conflict with the
employer's obligations under a collective bargaining agreement, unless the bargaining
agreement is shown to have the effect or intent of disability discrimination. 47
Collective bargaining agreement provisions that conflict with an employer's ability to
provide a reasonable accommodation in the form of either job restructuring 48 or
reassigning the disabled employee 49 may nevertheless be followed, since providing the
accommodation would usurp the legitimate rights of other employees under the
agreement.
Moreover, one court has explicitly found that Title VII's seniority system exception has
been incorporated into the Rehabilitation Act in a federal employment context.
Therefore, a seniority provision that prevented an accommodation was a valid exception
to the requirements of the Rehabilitation Act. 50
Observation: Private employers prohibited under the Rehabilitation Act from

committing disability discrimination under the Act by virtue of being either
government contractors or recipients of federal aid are not technically covered, as are
federal employers, by the Act's incorporation of Title VII exceptions. 51 However, a
collective bargaining provision that conflicts with a private employer's ability to
otherwise accommodate an employee with disabilities can still provide a defense under
the Act if breaching the agreement's terms would require job restructuring that
eliminates the essential functions of a position, 52 or would require a reassignment of
or the creation of a job for a disabled individual.

203 ----Effect of collective bargaining on duty to accommodate [SUPPLEMENT]
Footnotes
Footnote 46. 710.
Footnote 47. Shea v Tisch (1989, CA1) 870 F2d 786, 49 BNA FEP Cas 625, 49 CCH
EPD 38857; Carter v Tisch (1987, CA4) 822 F2d 465, 44 BNA FEP Cas 385, 43 CCH
EPD 37201.
Footnote 48. Jansey v United States Postal Service (1985, CA6 Ohio) 755 F2d 1244, 37
BNA FEP Cas 210, 36 CCH EPD 35070; Daubert v United States Postal Service (1984,
CA10 Colo) 733 F2d 1367, 34 BNA FEP Cas 1260, 34 CCH EPD 34356, 80 ALR Fed
819.
Footnote 49. Carty v Carlin (1985, DC Md) 623 F Supp 1181, 39 BNA FEP Cas 1217, 40
CCH EPD 36377; Bey v Bolger (1982, ED Pa) 540 F Supp 910, 32 BNA FEP Cas
1652, 33 CCH EPD 33967.
Footnote 50. Hurst v United States Postal Service (1986, ND Ga) 653 F Supp 259, 43
Footnote 51. As to the application of Title VII to federal employers, see 180.
Footnote 52. As to what are essential functions, see 194.
3. Disability Discrimination Prohibitions for Private and Public Employers and Other
Entities [204-227]
204 Effective date and purpose of ADA prohibitions

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Effective July 26, 1992, 53 the Americans with Disabilities Act of 1990 (ADA),
prohibits disability discrimination by labor organizations, employment agencies, joint

labor-management committees, 54 and employers employing 25 or more employees. 55
As of July 26, 1994, the Act also covers employers employing 15 or more employees. 56
On January 26, 1991, 57 the Act's special disability discrimination prohibitions with
respect to the programs and activities of public entities went into effect.
The ADA's purpose is to remove the barriers preventing qualified individuals with
disabilities from enjoying the same employment opportunities available to persons
without disabilities. The Act does not guarantee equal results, establish quotas, or
require preferences favoring individuals with disabilities over those without disabilities.
In general, employers are required to consider whether barriers created by a disability
could be removed through reasonable accommodations, so that disabled persons may
compete on the same standards and requirements the employer expects from persons who
are not disabled. 58
204 ----Effective date and purpose of ADA prohibitions [SUPPLEMENT]
Case authorities:
Courts may look to decisions interpreting regulations promulgated by EEOC in
implementation of Rehabilitation Act for clues to meaning of same terms found in
Americans with Disabilities Act (42 USCS 12101 et seq.). Vande Zande v Wisconsin
Dep't of Admin. (1995, CA7 Wis) 44 F3d 538, 8 ADD 159, 3 AD Cas 1636.
Ability to shoot in "Weaver stance" is essential function of police officer's job as defined
by ADA (42 USCS 12111), and plaintiff who could not safely shoot in this manner
even when reasonably accommodated need not be hired. Ethridge v Alabama (1994, MD
Ala) 860 F Supp 808, 6 ADD 525, 3 AD Cas 1013.
Footnotes
Footnote 55. 42 USCS 12111(2), 12111(5)(A).
The ADA's relationship to other federal, state, and local laws is discussed at 258, and
its prohibition against retaliation is discussed at 228.
Footnote 56. 42 USCS 12111(5)(A).

Footnote 58. 29 CFR Part 1630, Appendix.
205 Employment practices prohibited by the ADA

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The ADA makes it unlawful for an employer to:
limit, segregate, or classify an applicant or employee in a way that adversely affects the
opportunities or status of the individual because of his disability; 59
fail to make reasonable accommodation 60 for an otherwise qualified individual's
known physical or mental impairments, or to deny employment opportunities on the basis
of the need for reasonable accommodation; 61
use qualification standards, employment tests, or other selection criteria that tend to
screen out individuals with disabilities, 62 or fail to use employment tests in a manner
that ensures accurate measure of what the tests purport to measure; 63
discriminate with regard to job application procedures, hiring, advancement,
compensation, job training, or other terms, conditions, or privileges of employment, or to
discharge an individual on the basis of his disability; 64
participate in a contractual or other relationship that has the effect of discriminating
against an applicant or employee of a covered entity because of his disability, such as
relationships with employment or referral agencies, labor unions, and organizations
providing fringe benefits or training; 65
deny equal opportunity for jobs or benefits to a qualified individual because of that
person's relationship or association with an individual with a known disability. 66
Except as otherwise provided in the ADA, the Act's prohibitions may not be construed to
apply a lesser standard than is applied under the Rehabilitation Act or the regulations
promulgated under it. 67
Provisions applicable to food handlers with communicable diseases are discussed at
449. The statute's regulation of medical examinations and health-related inquiries of
applicants and employees are discussed at 445 and discussed at 446.
The ADA's disability discrimination prohibitions relating to the practices of labor
organizations, 68 employment agencies, 69 and joint labor-management training
committees 70 are discussed elsewhere.
State aspects: State statutes prohibiting job discrimination on account of handicap

do not require employers to give preferential treatment to handicapped employees or

applicants, and such persons are subject to rejection, discharge, or demotion upon the
same grounds as nonhandicapped persons. The crux of a discrimination complaint is
whether the employer's action was based on a legitimate and nondiscriminatory ground
such as would be applicable to employees generally. 71
Footnotes
Footnote 59. 42 USCS 12112(b)(1).
As to what is a disability under the ADA, see 209.
Law Reviews: Pfefferkorn, Employment Discrimination in the Americans with
Disabilities Act. 48 J Mo B 335 (1992).
Mikochik, Employment Discrimination Against Americans With Disabilities. 11 Miss
C L Rev 255 (1991).
Illustration: It is unlawful under the ADA for an employer to exclude an employee

with a severe facial disfigurement from staff meetings because the employer does not
like to look at the employee, or for an employer to refuse to hire qualified individuals
with AIDS. 29 CFR Part 1630, Appendix, 1630.15(a)
Footnote 60. As to reasonable accommodation under the ADA, see 217.
Footnote 61. 42 USCS 12112(b)(5).
Footnote 62. 42 USCS 12112(b)(6).
Footnote 63. 42 USCS 12112(b)(7).
Footnote 65. 206.
Footnote 66. 211.
As to standards to be applied under the Rehabilitation Act, see 176- , see 203.
Footnote 68. 1119.
Footnote 69. 1182.
Footnote 71. Annotations: Discrimination "because of handicap" or "on the basis of
handicap" under state statutes prohibiting job discrimination on account of handicap, 81
ALR4th 144.
206 Liability for contractual relationships

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The ADA's discrimination prohibitions include forbidding participating in a contractual
or other relationship that has the effect of subjecting a covered entity's qualified applicant
or employee with a disability to discrimination prohibited by the ADA, including
relationships with employment or referral agencies, labor unions, organizations providing
fringe benefits to employees of the covered entity or organizations providing training and
apprenticeship programs. 72
This provision applies to situations in which an organization covered by the ADA enters
into a contractual relationship with another entity that has the effect of subjecting the first
entity's employees or applicants to discrimination. The prohibition does not apply to
covered entities when it is the other entity's employees or applicants who are subjected to
discrimination resulting from the contractual relationships.
Illustration: If a copier company has a service representative who is a dwarf, it could

be required to provide a step stool to reasonably accommodate his ability to perform
necessary repairs, but it would not be required to make structural changes to a
customer's inaccessible premises. 73 This provision may be violated regardless of
whether the contracting entities intend for the relationship to have a discriminatory
effect. It also does not affect an entity's obligation to provide a reasonable
accommodation, 74 as it would when acting directly.
Illustration: An employer seeks to contract with a company to provide training for

its employees, but the training company is planning to hold its programs in a physically
inaccessible location for an employee needing a wheelchair. The employer has a duty
to consider various accommodations, including (1) asking the training company to
identify other sites, (2) identifying other training companies with more accessible sites,
or (3) paying to have the training company train the disabled employee. If no
accommodations are available, or if the only options would impose an undue hardship,
the employer will have met its obligations under the ADA. 75
Illustration: If an employer contracts with a hotel for a conference held for the
employer's employees, the employer has an affirmative duty to investigate the
accessibility of the location. The employer may protect itself by ensuring that the
contract with the hotel specifies that all rooms and meeting areas must be accessible, so
that if the hotel breached this provision, it could be held responsible for the costs of
reasonable accommodation accrued by the employer. However, this contractual
liability of the other party does not relieve the employer of its responsibilities to its
own employees under the ADA. 76
Footnotes
Footnote 72. 42 USCS 12112(b)(2).

Footnote 74. As to the obligation to provide a reasonable accommodation, see 217.
207 Discrimination based on associations or relationships with the disabled

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The ADA prohibits excluding or otherwise denying equal jobs or benefits to a qualified
individual because of that individual's known relationship or association with an
individual known to have a disability. 77 This prohibition does not apply if the
employer does not know of the relationship or association, or if the employer does not
know of the disability of the other person.
Illustration: A job applicant discloses to the prospective employer that his spouse
has a disability. If the applicant is otherwise qualified for the job, the employer
violates the ADA if it declines to hire the individual solely on the assumption that the
applicant will have to miss work or frequently leave work early to take care of his
spouse. However, if the applicant is hired and then violates a neutral company policy
concerning attendance or tardiness, he may be dismissed even if the reason for the
violation was the care for his spouse. The employer need not provide any
accommodation to the nondisabled employee. 78
This protection is not limited to persons whose relatives have disabilities. Thus, an
employer is prohibited from discharging an employee who does volunteer work with
people who have AIDS, because of its fear that the employee may contract the disease.
Furthermore, this prohibition also applies to benefits and other privileges of employment.
Illustration: An employer cannot reduce its health insurance benefits to a particular

employee because he has a dependent with a disability, despite the fact that it would
result in increased cost for the employer. 79
The burden of proof is on the individual claiming discrimination to prove that the
employer's action was motivated by his relationship or association with a person with a
disability. 80
Footnotes
Footnote 77. 42 USCS 12112(b)(4).

Footnote 78. 29 CFR Part 1630, Appendix, 1630.8
Footnote 80. H Rept No. 101-485, Part 3, 5/15/90, p. 38)
208 Exceptions to ADA prohibitions

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The ADA's disability discrimination prohibitions are subject to a number of statutory
exceptions, including:
a bona fide fringe benefit plan exception; 81
permissible religious preferences; 82
work rules forbidding the illegal use of drugs 83 and the use of alcohol in the
workplace; 84
prohibitions or restrictions on smoking in places of employment; 85
job-related qualifications or selection devices, 86 including requirements that an
individual not pose a direct threat to the health or safety of other persons in the
workplace, 87 that tend to screen out or deny benefits to individuals with disabilities, if
they are shown to be consistent with business necessity and cannot be accomplished by
providing an otherwise required reasonable accommodation. 88 A "direct threat" is a
significant risk to the health or safety of others that cannot be eliminated by reasonable
accommodation, 89 and is intended to be identical to the "direct threat" standard used
under the Rehabilitation Act. 90
Furthermore, certain conditions and behaviors are excluded from the meaning of
"disability" under the Act, and are therefore not protected by the statute. 91
Footnotes
Footnote 81. 834.
Footnote 82. 294.
Footnote 83. 215.

Footnote 87. 334.
Footnote 88. As to the requirement of reasonable accommodation, see 217.
Footnote 90. H Rept No. 101-485, Part 3, 5/15/90, pp. 34, 45.
As to the standard used under the Rehabilitation Act, see 190.
Footnote 91. 216.
209 Individuals with disabilities protected by the ADA

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The ADA protects individuals with a "disability," which is a physical or mental
impairment 92 that substantially limits 93 one or more major life activities. 94 The
Act also protects individuals who have a record of such an impairment, 95 or who may
be regarded as having such an impairment. 96
An individual who is able to establish an impairment that substantially limits a major life
activity has satisfactorily demonstrated a "disability" and is not required to demonstrate
that he has a record of a disability or that he is regarded as disabled. 97
An employee who is awarded benefits under a state workers' compensation law may or
may not be protected by the ADA. Employers must consider work- related injuries on a
case-by-case basis to determine whether a worker is protected by the ADA. 98
Not every employee injured on the job will be entitled to the protections of the ADA,
since work-related injuries do not always cause physical or mental impairments severe
enough to substantially limit a major life activity, and many on-the-job injuries cause
non-chronic impairments which heal quickly, with little or no long-term or permanent
impact.
Illustration: A construction worker who falls from a ladder and breaks a leg that
heals normally within a few months may receive workers' compensation benefits, but
would not be considered as a person with a disability under the ADA. However, if the
worker's leg took significantly longer to heal than is usual for an injury of this type,
and prevented walking during this period, the worker would be covered by the ADA.
99
Observation: Only "qualified individuals with a disability" are required to be

provided a reasonable accommodation under the ADA. 1
State aspects: While some state statutes prohibiting discrimination in employment

on the basis of disability define a "disability" within the scope of the statute as a
condition preventing or limiting performance of a major life function, others use
different definitions, or provide no definition of the term. 2
Footnotes
Footnote 92. 210.
Footnote 93. 211.
Footnote 94. 212.
Footnote 95. 213.
Footnote 96. 214.
Footnote 97. 29 CFR Part 1630, Appendix, 1630.2(j).
Americans with Disabilities ActExplanation of Key Legal Requirements, Equal
Footnote 1. 217.
Footnote 2. Annotations: What constitutes handicap under state legislation forbidding
job discrimination on account of handicap, 82 ALR4th 26.
210 What are physical or mental impairments

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A "physical or mental impairment" covered by the ADA's definition of a disability
includes any physiological disorder or condition, cosmetic disfigurement, or anatomical
loss affecting any of the following systems: neurological; musculo-skeletal; special
sense organs; respiratory and speech organs; cardiovascular; reproductive; digestive;
genito-urinary; hemic and lymphatic; skin; and endocrine. It also includes any mental or
psychological disorder, such as mental retardation, organic brain syndrome, emotional or
mental illness, and special learning disabilities. 3
Stress or depression may be considered "impairments" within the meaning of the ADA if
they result from a documented physiological or mental disorder. A person suffering from
general "stress" because of job or personal pressures does not have an impairment.
However, a person diagnosed by a psychiatrist as having an identifiable stress disorder
has an impairment that may be a disability. 4
A physical or mental impairment also includes such conditions, diseases, and infections
as: orthopedic, visual, speech, and hearing impairments; cerebral palsy; epilepsy; 5
muscular dystrophy; multiple sclerosis; HIV infection; cancer; heart disease; diabetes;
mental retardation; emotional illness; specific learning disabilities; drug addiction; and
alcoholism. 6 Impairments do not include physical, psychological, environmental,
cultural, or economic characteristics, such as:
eye or hair color;
left-handedness;
height, weight, or muscle tone within "normal" ranges that are not the result of a
physiological disorder;
a characteristic predisposition to illness or disease;
pregnancy;
personality traits such as poor judgment or a quick temper when they are not symptoms
of a mental or psychological disorder;
poverty;
a lack of education;
a prison record.
Nor is advanced age by itself an impairment, although medical conditions associated with
the aging process such as hearing loss, osteoporosis, and arthritis would constitute
impairments. 7
The existence of an impairment is determined without regard to mitigating measures such
as medicines, or assistive or prosthetic devices.
Illustration: An individual with epilepsy has an impairment even if the condition is

completely controlled by medicine, and an individual with hearing loss has an
impairment even if the hearing loss is correctable through the use of a hearing aid. 8
Caution: The mere existence of an impairment does not establish a "disability"

under the ADA unless it also "substantially limits" 9 a "major life activity." 10
Footnotes
Footnote 3. 29 CFR 1630.2(h).
Employment Opportunity Commission, January 28, 1992, 2.1(a)(i).
Footnote 5.
Law Reviews: Young, Epileptics: Employment Discrimination and Rights. 34 Med
Trial Tech Q 425 (1988).
Footnote 6.
Footnote 7. 29 CFR Part 1630, Appendix, 1630.2(h).
Footnote 8. 29 CFR Part 1630, Appendix, 1630.2(h).
Footnote 9. 211.
Footnote 10. 212.
211 When does an impairment constitute a substantial limitation

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The ADA protects individuals with a "disability," that is, a physical or mental impairment
that substantially limits one or more major life activities. 11 The term "substantially
limits" means that the individual is unable or significantly restricted in the ability to
perform a major life activity 12 that an average person in the general population can
perform. 13
Illustration: An individual with artificial legs is substantially limited in the major

life activity of walking since he is unable to do so without the aid of those devices.
Similarly, a diabetic without insulin would lapse into a coma and thus could not
perform major life activities without the aid of medication. 14
To determine whether an impairment is substantially limiting a major life activity,
consideration must be given to the impairment's nature and severity, its duration or
expected duration, and the actual or expected permanent or long-term impact resulting
from it. 15
Illustration: A broken leg that takes eight weeks to heal is an impairment of brief
duration. However, if it heals improperly, the "impact" of the impairment would be a
permanent limp. Likewise, the impact of a traumatic head injury would be its effect on
cognitive functions. 16 Thus, temporary, non-chronic impairments of short duration
with little or no long-term impact usually are not disabilities. Such non-disabling
impairments include broken limbs, sprained joints, concussions, appendicitis,
influenza, and, except in rare circumstances, obesity. 17
An individual is not substantially limited in the major life activity if the limitation does
not amount to a significant restriction in comparison with the abilities of an average
person.
Illustration: An individual who once had the ability to walk at an extraordinary

speed would not be substantially limited in a major life activity of walking if a physical
impairment reduced his speed to average or even moderately below average. 18
The same impairment may disable one individual but not another, depending on the stage
of the disease or disorder, the presence or absence of other impairments, or other factors.
Also, multiple impairments may combine to substantially limit one or more major life
activities so as to constitute a disability. Other impairments, such as an HIV infection,
are inherently substantially limiting. 19
Furthermore, the limitation on a major life activity must result from an impairment, not
other factors, in order to constitute a disability.
Illustration: A person unable to read because he was never taught to read does not
have a disability, since lack of education is not an impairment. However, an individual
unable to read because of dyslexia has a disability, since that learning disability
constitutes an impairment. 20
211 ----When does an impairment constitute a substantial limitation
[SUPPLEMENT]
Case authorities:
In action by HIV-positive orthopedic surgeon alleging that hospitals violated 504 of
Rehabilitation Act (29 USCS 794) by requiring him to obtain consent from patients
with knowledge of his HIV status before operating on patients, considering nature of risk
to patients, defendants were justified in restricting plaintiff's activities and did not violate
Act. Scoles v Mercy Health Corp. (1994, ED Pa) 7 ADD 779.
Footnotes
Footnote 11. 209.
Footnote 12. As to what is a major life activity, and the meaning of "substantially limits"
in the context of the major life activity of working, see 212.
Footnote 13. 29 CFR 1630.2(j)(1).

Footnote 15. 29 CFR 1630.2(j)(2).
Practice References 36 Am Jur POF2d 149, Discrimination Against the Obese.
Law Reviews: McEvoy, Fat Chance: Employment Discrimination Against the
Overweight. 43 Lab L J 3 (1992).
Footnote 19. 29 CFR Part 1630, Appendix, 1630.2(j)
212 What is a "major life activity"

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To establish a "disability" under the ADA, the substantial impairment must relate to a
major life activity. 21 A "major life activity" is a function such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning,
working, 22 and reading. 23 It involves a basic activity the average person in the
general population can perform with little or no difficulty, such as sitting, standing,
lifting, and reaching. 24
Illustration: An individual who can only walk for brief periods of time because of
his impairment is substantially limited in the major life activity of walking. 25
A physical or mental impairment is not a disability as defined in the ADA if it does not
substantially limit one or more major life activities. Thus, persons with minor, trivial
impairments, such as a simple infected finger are not impaired in a major life activity. 26
A determination that a person has a disability that impairs a major life activity should be
made without regard to the availability of reasonable accommodations 27 or auxiliary
aides. 28
An individual's ability to perform the major life activity of working should not be
considered unless he is not substantially limited in any other major life activity. If an
individual is substantially limited in any other major life activity, no determination as to
his ability to work should be made.
Illustration: If an individual is blind, that is, substantially limited in the major life
activity of seeing, there is no need to determine whether he is also substantially limited
in the major life activity of working. 29 However, an individual who is not
substantially limited with respect to any other major life activity may still be
substantially limited with respect to the major life activity of "working." The factors
that may be considered in determining whether an individual is substantially limited in
"working" include: (1) the geographical areas to which the individual has reasonable
access; (2) the job from which the individual has been disqualified because of an
impairment and the number and types of jobs utilizing similar training, knowledge,
skills or abilities, within that geographical area, from which the individual is also
disqualified because of the impairment; and (3) the job from which the individual has
been disqualified because of an impairment, and the number and types of other jobs not
utilizing similar training, knowledge, skills or abilities, within that geographical area,
from which the individual is also disqualified because of the impairment. 30
With respect to "working," the term "substantially limits" 31 means the impairment
significantly restricts the ability to perform either a class of jobs or a broad range of jobs
in various classes as compared to an average person having comparable training, skills,
and abilities. An individual is not substantially limited in the major life activity of
"working" just because he is unable to perform a particular job for one employer, or
because he is unable to perform a specialized job or profession requiring a particular skill
or talent. 32
Illustration: An individual will not be considered substantially limited in the major

life activity of working because a minor vision impairment prevents him from being a
commercial airline pilot as opposed to a co-pilot or a pilot for a courier service. Nor
will a baseball pitcher be considered substantially limited in the major life activity of
working because he develops a bad elbow and can no longer throw a baseball. 33
Conversely, an individual may be substantially limited in the major life activity of
working without being totally disabled from employment. He need only be significantly
restricted in his ability to perform a class of jobs or a broad range of jobs in various
classes vis-a-vis the ability of an average person with comparable qualifications.
Illustration: An individual with a back condition preventing him from performing

heavy labor is substantially limited in the major life activity of working due to his
inability to perform a class of jobs, even though he is able to perform other
semi-skilled jobs. 34
Footnotes
Footnote 21. 209.
Footnote 22. 29 CFR 1630.2(i).
Footnote 23. S Rept No. 101-116, 8/30/89, p. 22
Footnote 24. 29 CFR Part 1630, Appendix, 1630.2(i).
Footnote 26. S Rept No. 101- 116, 8/30/89, p. 22.

Footnote 27. As to reasonable accommodations, generally, see 217.
Footnote 30. 29 CFR 1630.2(j)(3)(ii).
Footnote 31. 211.
Footnote 32. 29 CFR 1630.2(j)(3)(i).
213 Having a record of an impairment

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The ADA protects persons not only if they are able to demonstrate a "disability," but also
if they meet an alternative standard of having a record of an impairment. 35 An
individual is considered to have a record of an impairment if he has a history of, or has
been misclassified as having, a mental or physical impairment that substantially limits
one or more major life activities. 36 The purpose of this provision is to ensure that
people are not discriminated against either because they had a prior disability or have
been misclassified as disabled. Such individuals would include recovered cancer patients
and persons misclassified as learning disabled. The record relied on by a discriminatory
employer may be, but is not limited to, educational, medical, or employment records.
However, a record identifying a person as disabled for some other purpose which does
not meet the ADA's definition of "disability" will not necessarily establish the fact that
the person has a record of being disabled under the ADA.
Illustration: A record of being a disabled veteran or of being on disability retirement

will not guarantee, by itself, that a record of a disability has been established under the
ADA. 37
Examples of situations in which an employer would violate the ADA if it acted on a
record of impairment include refusing to hire:
a person who was previously misclassified as being mentally retarded, but who in fact
was dyslexic;
a job applicant who was misdiagnosed as being psychopathic;
a person who was hospitalized for treatment of cocaine addiction and had continued a
successful recovery. 38
Footnotes
Footnote 35. 209.
Footnote 36. 29 CFR 1630.2(k).
Footnote 37. 29 CFR Part 1630, Appendix, 1630.2(k).
Employment Opportunity Commission,January 28, 1992, 2.2(b).
214 Persons regarded as being disabled

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The ADA protects persons not only if they are able to demonstrate a "disability," but also
if they meet an alternative standard of being regarded as disabled. 39 The Act protects
individuals in three types of circumstances: 40
when an individual whose physical or mental impairment does not substantially limit a
major life activity is treated as having such a limitation; 41
when an individual has an impairment that substantially limits major life activities only
as a result of the attitudes of others toward the impairment; 42
when an individual with no impairment is treated by an employer as having a
substantially limiting impairment. 43
This alternative definition of disability may be satisfied by an individual who
demonstrates that an employer's myths, fears, or stereotypes regarding the impact of the
employee's medical condition on productivity, safety, insurance, liability, attendance,
acceptance by coworkers or customers, or cost of accommodation or workers'
compensation affected an adverse employment decision against him. This inference that
the employee was regarded as disabled will prevail unless the employer articulates a
nondiscriminatory reason for the employment action. 44 A person who is covered
because he is regarded as having an impairment is not required to show that the
employer's perception is inaccurate. 45
Footnotes
Footnote 39. 209.

Footnote 40. 29 CFR 1630.2(l):
Footnote 41.
Illustration An employee whose high blood pressure is controlled by medication,
when assigned to less strenuous work due to unsubstantiated fears that he will suffer a
heart attack while performing strenuous work, is being regarded by the employer as a
disabled individual. 29 CFR Part 1630, Appendix, 1630.2(l).
Footnote 42.
Illustration A person may be considered as disabled by an employer if he has a
prominent facial scar or disfigurement or some other condition such as a periodic
involuntary jerk of the head which does not limit his major life activities, but the
employer discriminates against him because of anticipated negative reactions by
customers. 29 CFR Part 1630, Appendix, 1630.2(l).
Footnote 43.
Illustration Such a circumstance would include an employee discharged by an
employer because of an unfounded rumor that the employee is infected with AIDS. 29
CFR Part 1630, Appendix, 1630.2(l).
Footnote 44. 29 CFR Part 1630, Appendix, 1630.2(l).
215 Limited protection for drug users under ADA's definition of "disability"
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The ADA excludes from its protection as an "individual with a disability" any employee,
applicant, or individual currently engaged in the illegal use of drugs when a covered
entity acts on the basis of such use. 46 A person "currently engaging" in such use is not
limited to an individual using drugs on the day of, or within a matter of days or weeks
before the employment action at issue. Rather it applies to any illegal use of drugs
occurring recently enough to indicate that the individual is actively engaged in such
conduct. 47 However, an individual who no longer engages in illegal drug use and (1)
has successfully completed a supervised drug rehabilitation program or has otherwise
been rehabilitated successfully, or (2) is participating in a supervisory rehabilitation
program, or (3) is erroneously regarded as engaging in such use, may still be protected as
an "individual with a disability." 48 A "rehabilitation program" refers to both in-patient
and out-patient programs, as well as employee assistance programs, professionally
recognized self-help programs (such as Narcotics Anonymous), or other programs that
provide professional, if not necessarily medical assistance and counselling for illegal
drug users. 49 Furthermore, in some circumstances, such as law enforcement, an
employer may be permitted to impose a standard excluding individuals with a history of
illegal drug use, if it can show that the qualification is a job related business necessity.
Individuals erroneously perceived as engaging in the current illegal use of drugs are not
excluded from the protection of the ADA. However, an individual erroneously regarded
as an illegal drug user still must show that he is regarded as a drug addict in order to
demonstrate that he meets the definition as being regarded as disabled. 50
A "drug" whose use may be illegal as a controlled substance as defined in the Controlled
Substances Act (21 USCS 801 et seq.). 51 "Illegal use of drugs" is the use of
controlled substances the possession or distribution of which is unlawful under the
Controlled Substances Act, but does not include the use of drugs taken under the
supervision of licensed health care professionals or other uses authorized by the
Controlled Substances Act or other provisions of federal law. 52
Observation: This identical limitation also applies to not only the definition of a
"qualified individual with a disability" to whom a reasonable accommodation must be
provided under the ADA, 53 but additionally limits the protections afforded under the
Therefore, the ADA allows an employer to hold an employee engaging in illegal drug
use, or who is an alcoholic, to the same standards for job performance and behavior as it
would hold other employees, even if unsatisfactory performance or behavior is related to
the employee's drug use or alcoholism. 55
Provisions in the ADA which directly address an employer's substance abuse policies and
ability to conduct drug and alcohol testing are discussed elsewhere. 56
215 ----Limited protection for drug users under ADA's definition of "disability"
[SUPPLEMENT]
Practice Aids: What constitutes reasonable accommodation of otherwise qualified
employee or applicant who is disabled by drug or alcohol addiction 122 ALR Fed 111.
Footnotes
Footnote 51. 42 USCS 12210(d)(2).
Footnote 52. 42 USCS 12210(d)(1).

Footnote 53. 1As to this definition, generally, see 223.
Footnote 54. 191.
Footnote 55. 29 CFR 1630.16(b)(4).
216 Sexual and behavioral conditions excluded from ADA protection as

disabilities
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The ADA excludes certain sexual and behavioral conditions from its protection by
declaring them not to constitute "disabilities."
The sexual behaviors and conditions that are so excluded involve:
homosexuality or bisexuality; 57
transvestism; 58
transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not
resulting from physical impairments, or other sexual behavior disorders. 59
Other behaviors and conditions excluded from the definition of "disability" include:
compulsive gambling, kleptomania, or pyromania; 60
current psychoactive substance use disorders resulting from current use of illegal drugs.
61
216 ----Sexual and behavioral conditions excluded from ADA protection as
disabilities [SUPPLEMENT]
Practice Aids: Cherian, Transnational Reach of U.S. Civil Rights Laws: What's Left
After Aramco? 42 Lad LJ 596, Sept, 1991.
Footnotes

Footnote 58. 42 USCS 12208, 12211(b)(1).
sexual lifestyle or sexual preference as violation of Federal Constitution or federal civil
Footnote 60. 42 USCS 12211(b)(2).
Footnote 61. 42 USCS 12211(b)(3).
b. Reasonable Accommodation and Undue Hardship Under the ADA [217-227]
217 The ADA's reasonable accommodation requirement

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The ADA requires covered entities to provide a reasonable accommodation to the known
physical or mental limitations of an "otherwise qualified individual with a disability," 62
and prohibits such entities from denying employment opportunities to applicants or
employees on the basis of the need to provide such an accommodation, unless the entities
can demonstrate that the accommodation would impose an undue hardship. 63
"Reasonable accommodation" means modifications or adjustments
(1) to a job application or testing process that enable a qualified applicant with a
disability to be considered for the position he desires; 64
(2) to the work environment or the manner or circumstances in which the job held or
desired is customarily performed that enable an individual with a disability to perform
the essential functions of the position;
(3) modifications or adjustments that enable an employee with a disability to enjoy
equal benefits and privileges of employment as are enjoyed by similarly situated
employees without disabilities. 65
Observation: The latter type of accommodation would include insuring equality of

opportunity with respect to workplace conditions and facilities as well as access to
non-work facilities and employer-sponsored activities. 66
An employer is obligated only to make a reasonable accommodation to the physical and
mental limitations of a disabled employee that it knows about, and is not expected to
accommodate limitations or disabilities of which it is unaware. While it may inquire
whether a reasonable accommodation is needed when an employee is having difficulty
performing his job, it is generally the responsibility of the disabled employee to inform
the employer that an accommodation is needed. Furthermore, when the need for an
accommodation is not obvious, an employer may require documentation of the need prior
to providing the accommodation. 67
The Act does not require an individual with a disability to accept any accommodation
that he does not want to accept. 68 This provision is intended to prohibit discriminatory
treatment rendered under the guise of providing an accommodation. 69 However, if the
individual rejects a necessary reasonable accommodation and as a result cannot perform
the essential functions of the position, the individual will not be considered a "qualified
individual with a disability." 70
Illustration: An individual with a visual impairment that restricts his field of vision
and makes him unable to read without assistance will not be required to accept a reader
as an accommodation. However, if reading is an essential function of the job, refusal
of this accommodation would render the individual unqualified for the position. 71
An employer is not excused from the reasonable accommodation requirement because of
a failure to receive technical assistance, including a failure in developing or
disseminating any technical systems manual authorized by the Act. 72
State aspects: Accommodation requirements exist or have been read into numerous
state statutes prohibiting employment discrimination against disabled persons. 73
217 ----The ADA's reasonable accommodation requirement [SUPPLEMENT]
Practice Aids: The future of the reasonable accommodation duty in employment
practices, 26 Colum J L & Soc Probs (1993).
When must specialized testing, training, or other work procedures be provided for benefit
of qualified disabled employee or applicant to fulfill employer's reasonable
accommodation requirement. 127 ALR Fed 559.
629.
Footnotes
Footnote 62. As to who is an otherwise qualified individual with a disability, see 223.
Footnote 63. 42 USCS 12112(b)(5)(A), 12112(b)(5)(B).
As to what is an undue hardship, see 226.

Law Reviews: Reasonable Accommodation and Employment Discrimination Under
Title I of the Americans with Disabilities Act. 64 S Cal L Rev 1607 (1991).
Footnote 64. 584.
Footnote 65. 29 CFR 1630.2(o)(1).
Footnote 66. The application of of the ADA under such circumstances is discussed at
701 et seq.
As to who is a qualified individual with a disability, generally, see 223.
Footnote 71. 29 CFR Part 1630, Appendix, 1630.9(d).
Footnote 73.
Annotation: Accommodation requirement under state legislation forbidding job
discrimination on account of handicap, 76 ALR4th 310.
For discussion of particular state statutes in this respect, see Employment Coordinator
EP-12,102 et seq.
218 What constitutes a reasonable accommodation under the ADA

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The ADA describes the types of actions that would satisfy its reasonable accommodation
requirement to include making existing facilities used by employees readily accessible to
and usable by individuals with disabilities, job restructuring, modified work schedules,
reassignment to vacant positions, acquisition or modification of equipment or devices,
adjustment or modification of examinations or training materials or policies, provision of
qualified readers or interpreters, and other similar accommodations, 74
such as:
permitting the use of accrued paid leave or providing additional unpaid leave for
necessary treatment;
making employer-provided transportation accessible;

providing reserved parking spaces;
providing personal assistance, such as a page turner for an employee with no hands, or a
travel attendant serving as a sighted guide to a blind employee on occasional business
trips;
allowing an individual with a disability an opportunity to utilize equipment aids or
services it is not required to provide as a reasonable accommodation.
Illustration: It would be a reasonable accommodation for an employer to allow a

blind individual to use his guide dog at work, even though the employer would not be
required to provide a guide dog for the employee. 75
A reasonable accommodation need not be the best accommodation possible, but must
sufficiently meet the job-related needs of the individual being accommodated.
Illustration: An employee disabled by a back impairment will not have to be

provided with a state-of-the-art mechanical lifting device if a less expensive or more
readily available device enables him to perform the essential functions of the job. 76
If more than one accommodation is possible, or if the disabled individual would prefer
to provide his own accommodation, the preference of the disabled individual should be
given primary consideration. However, the employer has the ultimate discretion to
choose among effective accommodations and may select the less expensive one or the
one that is easier to provide. Furthermore, an individual's willingness to provide his
own accommodation does not relieve the employer of its accommodation obligations if
the individual is unable or unwilling to continue to provide the accommodation some
time in the future. 77 Furthermore, an employer cannot require an individual to
provide an accommodation required by the Act. 78
Nothing in the ADA prevents an employer from providing an accommodation beyond
what is necessary to comply with the statute. 79
218 ----What constitutes a reasonable accommodation under the ADA
[SUPPLEMENT]
629.
Footnotes
For discussion of job restructuring as a reasonable accommodation, see 219.

For discussion of reassignment to a vacant position as a reasonable accommodation, see
220.
For discussion of the provision of equipment or devices as a reasonable accommodation,
see 221.
Footnote 75. 29 CFR Part 1630, Appendix, 1630.2(o).
Footnote 78. 56 Fed Reg 35731, 7/26/91.
219 Restructuring as accommodation

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The ADA expressly mentions job restructuring as a type of action which will satisfy its
reasonable accommodation requirement. 80 Job restructuring as a reasonable
accommodation entails the reallocation or redistribution of nonessential, marginal job
functions.
Illustration: If an employer has two jobs which both entail the performance of some
marginal functions, and it hires a qualified individual with a disability who is able to
perform some of the marginal functions of each job, but not all of the marginal
functions of either job, it may redistribute the marginal functions of both jobs so that
the disabled employee is assigned only those marginal functions he can perform. Job
restructuring does not require the reallocation of essential functions of a position, since
those are the functions an individual must perform with or without a reasonable
accommodation in order to be considered qualified.
Illustration: If a security guard position requires the inspection of identification

cards, an employer does not have to provide a legally blind individual with an assistant
to look at the identification cards, since the assistant would then be performing the job
instead of assisting the disabled individual in performing the job. 81 Furthermore, the
duty to provide a reasonable accommodation under the ADA is not identical with
"supported employment" or other rehabilitation programs in which essential functions
of a job are restructured to fit the skills of a disabled individual who is not otherwise
qualified to perform those functions. 82 However, job restructing may involve an
alteration in when and how an essential function is to be performed.
Illustration: An essential function customarily performed in early morning hours

may be rescheduled until later in the day as a reasonable accommodation to a disabled
employee who is unable to perform the function at the customary hour. Likewise, an
employee with a disability that inhibits his ability to write may be permitted to
computerize records that were customarily maintained manually. 83
Illustration: Persons who need medical treatment may benefit from flexible or
adjusted work schedules. A person with epilepsy may require constant shifts rather
than rotation from day to night shifts. Other persons who might require modified work
schedules are persons with mobility impairments who depend on a public
transportation system that is not yet fully accessible. 84
Employers are not required to lower quality or quantity standards as part of a job
restructuring to provide a reasonable accommodation under the ADA. 85
State aspects: Under state statutes prohibiting job discrimination on account of

disability, changing the job duties of a disabled employee is a reasonable
accommodation properly required of an employer in some cases. 86
219 ----Restructuring as accommodation [SUPPLEMENT]
Footnotes
Footnote 80. 218.
Employment Opportunity Commission, January 28, 1992, Title I.
Footnote 86.
220 Reassignment as accommodation

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The ADA expressly mentions reassignment to a vacant position as a type of action which
will satisfy its reasonable accommodation requirement. 87 However, reassignment may
not be used by an employer, in the guise of an accommodation, to discriminate against an
employee with a disability by forcing him into undesirable positions, offices, or facilities.
Reassignment should be to an equivalent position in terms of pay and status, if the
individual is qualified and the position is vacant within a reasonable amount of time. The
amount of time that is reasonable in this context is determined by the totality of the
circumstances.
Illustration: If there is no vacant position available at the time a disabled individual

requests reassignment as an accommodation, but the employer knows that an
equivalent position will become vacant next week, the reassignment should be made
when the position becomes available. A reassignment to a lower-graded position
should only be made if no accommodations are available that would enable the
employee to remain in his current position, and there are no vacant equivalent positions
for which the individual is qualified with or without an accommodation. However, an
employer is not required to maintain the reassigned disabled individual at the salary of
the higher-graded position if it does not do so when a reassigned employee is not
disabled.
Furthermore, reassignment as a reasonable accommodation does not require an employer
to promote an individual with a disability, or to "bump" another employee out of a
position to create a vacancy for a disabled employee. Reassignments to a vacant position
are not reasonable accommodations available to applicants, since applicants must be
qualified for and able to perform the essential functions of a position with or without a
reasonable accommodation. 88
If a light duty position already exists for which an injured employee is qualified, a
reasonable accommodation might be to assign the worker to that position. Again,
employers must consider any accommodations that do not create an undue hardship
regarding the light duty position. 89
State aspects: The duty of accommodation has been held to include reassignment
under some state statutes prohibiting job discrimination on account of disability, but
not under others. 90
220 ----Reassignment as accommodation [SUPPLEMENT]
Footnotes
Footnote 87. 218.
As to what are essential functions of a position, see 224.
Footnote 90.
221 Provision of equipment or devices as reasonable accommodation

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While the ADA expressly mentions the acquisition of equipment or devices as part of the
reasonable accommodation obligation, 91 a reasonable accommodation does not include
an adjustment or modification that is primarily for the personal benefit of the disabled
individual, such as one that assists the individual throughout his daily activities both on
and off the job. Thus, an employer is generally not required to provide a disabled
employee with artificial limbs, wheelchairs, or eyeglasses. Nor is an employer required
to provide an amenity or convenience that is not job-related, such as a hot plate or
refrigerator that is not provided to employees who are not disabled.
Illustration: While an employer is not required by the ADA to provide an employee

with eyeglasses he will use at home or at work, as part of a reasonable accommodation
it may be required to provide a visually disabled employee with eyeglasses specifically
designed to enable him to use office computer monitors, since such devices are
job-related and not otherwise useful to the employee outside of the working
environment. 92
For blind or visually-impaired individuals, equipment or devices that could provide a
reasonable accommodation may include adaptive hardware and software for computers,
electronic visual aids, braille devices, talking calculators, magnifiers, audio recordings,
and brailled material. For persons with hearing impairments, they may include telephone
handset amplifiers, telephones compatible with hearing aids, and telecommunication
devices for deaf persons. For persons with limited physical dexterity, they may include
gooseneck telephone headsets, mechanical page turners, and raised or lowered furniture.
93
For hearing-impaired employees, interpretation may only be required for important
meetings, such as performance reviews or staff meetings. 94
State aspects: A state statute forbidding job discrimination on account of disability

may require an employer, as a reasonable accommodation of an employee's disability,
to make structural and equipment modifications at the place of employment. 95
221 ----Provision of equipment or devices as reasonable accommodation
[SUPPLEMENT]
629.
Footnotes
Footnote 91. 218.
Employment Opportunity Commission, January 28, 1992, 3.10(8), 3.10(9).
Accommodation in pre-hire tests is discussed at 335. Accommodation in training is
discussed at 901.
Footnote 95.
222 Process for providing a reasonable accommodation

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To determine the appropriate reasonable accommodation, it may be necessary for an

employer to initiate an interactive process with the qualified individual. 96 The EEOC
suggests that an employer faced with a request for a reasonable accommodation from a
qualified individual with a disability should take the following analytical approach: (1)
analyze the particular job to determine its purpose and essential functions; (2) consult
with the disabled individual to ascertain the precise job-related limitations imposed by
the disability and how those limitations can be overcome; (3) with the disabled
individual's assistance, identify potential accommodations and assess the effectiveness of
each in enabling the individual to perform the essential functions of the job; (4) consider
the disabled individual's accommodation preferences and select and implement the
accommodation most appropriate for both the employee and employer.
The process of identifying whether and to what extent a reasonable accommodation is
required should be flexible and involve both the employer and the individual with a
disability. Determinations as to a particular individual's qualifications must necessarily be
made on a case-by-case basis since the act applies to qualified individuals of varying
abilities who are required to receive equal opportunity to compete for an infinitely
diverse range of jobs.
Illustration: A sack handler position requires lifting 50-pound sacks and carrying
them from the company loading dock to a storage room. A sack handler disabled by a
back impairment requests a reasonable accommodation. The employer determines that
the essential function of the job does not require the physical lifting of sacks, but only
that the sacks be moved from the loading dock to the storage room. Meeting with the
employee, the employer ascertains that the disability does not prevent the employee
from lifting the sacks to waist level, but it does prevent carrying of the sacks from the
dock to the storage room. Both parties then agree that a dolly, hand truck, or cart
would enable the transportation of the sacks as required. While carts are not available
to handle the irregularly shaped sacks that must be transported, both dollies and hand
trucks are readily available to the employer. The employee indicates his preference for
a dolly and, because the employer determines that that device will enable more sacks to
be moved more efficiently than a hand truck, provides the device as a reasonable
accommodation. This formalized process is particularly helpful when the individual
needing the accommodation may not be familiar enough with the employer's
equipment or worksite to suggest an appropriate accommodation, or the employer may
not know enough about the disability or its limitations on the job at issue to suggest an
accommodation.
If utilization of this formal process does not reveal potential appropriate
accommodations, the employer may find technical assistance helpful in determining how
the accommodation can be made. Such assistance may be provided by the EEOC, state
or local rehabilitation agencies, or disability constituent organizations.
This formal approach may be unnecessary when the appropriate accommodation is
obvious to both the employer and the disabled individual.
Illustration: If an employee who uses a wheelchair requests his desk to be placed on

blocks in order to elevate the desk top above the wheelchair's arms, and the employer
complies, an appropriate accommodation has been rendered without the necessity of a
formal process. 97
222 ----Process for providing a reasonable accommodation [SUPPLEMENT]

Footnotes
Footnote 96. 29 CFR 1630.2(o)(3).
223 To whom must a reasonable accommodation be provided under the ADA

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The ADA's reasonable accommodation requirement must be provided to a "qualified
individual with a disability," who is an individual with a disability who, with or without
the accommodation, can perform the essential functions of the position he holds or seeks.
98
Reminder: The ADA excludes from its protection as an "individual with a

disability" any employee, applicant, or individual currently engaged in the illegal use
of drugs when a covered entity acts on the basis of such use. 99 Also, an individual
who rejects a necessary reasonable accommodation and cannot, as a result of that
rejection, perform the essential functions of the position, is not considered a "qualified
individual with a disability." 1
There are two steps involved in the determination of whether an individual with a
disability is "qualified." The first determination concerns whether he or she satisfies the
prerequisites for the position, such as the appropriate educational background,
employment experience, skills, or licenses.
Illustration: The first step in evaluating whether a paraplegic accountant is qualified

for a certified public accountant position is to determine if he is a licensed CPA, an
exercise referred to as evaluating whether the individual is "otherwise qualified" under
the Rehabilitation Act. 2
The second determination involves whether or not the individual can perform the
"essential functions" of the position with or without a reasonable accommodation. 3
The purpose of the second step is to ensure that disabled individuals who can perform the
essential functions of the job in question are not denied employment when they are only
unable to perform marginal functions involved in the job. Both of these decisions must
be made at the time of the employment decision in question and cannot be based on
speculation regarding the employee's future inability to perform, or the potential increase
in health insurance or worker's compensation costs. 4
A disabled individual is qualified if he satisfies the requisite skill, experience, education,
and other job-related requirements of the position sought. 5 An inquiry into the
qualifications required by a job is not intended to second-guess an employer's business
judgment with regard to qualitative or quantitative production standards, nor to require
employers to lower those standards. However, an employer must demonstrate that it
actually imposes those requirements on employees and that they were not intentionally
selected to exclude individuals with disabilities, but were based on legitimate
nondiscriminatory reasons.
Illustration: As long as an employer actually requires its typists to be able to

accurately type 75 words per minute for legitimate reasons it will not be called upon to
explain why an inaccurate work product or a typing speed of 65 words per minute
would not be adequate. Likewise if a hotel legitimately applies a minimum standard
requiring its service workers to clean 16 rooms per day, it will not have to explain
either why it requires thorough cleaning or why a lesser number of rooms is
unsatisfactory.
A reasonable accommodation is not required for a disabled individual unless he satisfies
the legitimate qualifications imposed by the employer.
Illustration: A law firm that requires graduation from an accredited law school and
passing the bar examination for all lawyer positions does not need to accommodate an
applicant with a visual impairment who does not meet the selection criteria, because he
is not qualified for the position regardless of whether an accommodation is provided.
However, if the applicant met the selection criteria the law firm would be required to
reasonably accommodate his impairment through such means as a machine that
magnifies print, in order to enable him to perform the essential functions of the
attorney position, unless the accommodation imposes an undue hardship. 6
Illustration: An employer has a job opening for a typist and two persons apply, one
an individual with a disability who types 50 words per minute and the other an
individual without a disability who types 75 words per minute. The employer is
permitted to choose the applicant with the higher typing speed. However, if the two
applicants have the same typing speed, but one has a hearing impairment requiring a
telephone headset with an amplifier, the employer may not choose the individual
without a disability because of the need to provide the needed reasonable
accommodation. Rather, the employer must make the decision on some other basis.
The employer is not obligated by the ADA to prefer the applicant with disabilities over
other applicants on the basis of disability. 7
State aspects: State laws prohibiting job discrimination against disabled persons also
require, as a prerequisite of accommodation, that the person to be accommodated be
qualified for the position in question. 8
223 ----To whom must a reasonable accommodation be provided under the ADA
[SUPPLEMENT]
Practice Aids: Obesity as a legal disability under the ADA, Rehabilitation Act, and
state handicapped employment laws, 44 Lab LJ 286 (1993).
A weighty decision by the California Supreme Court: Obesity alone is not a protected
class, 40 Med Tr Tech Q 327 (1994).
When must specialized testing, training, or other work procedures be provided for benefit
of qualified disabled employee or applicant to fulfill employer's reasonable
accommodation requirement. 127 ALR Fed 559.
Footnotes
As to what is a disability, see 209.
As to what is an essential function of a job, see 224.
Footnote 99. 215.
Footnote 1. 217.
Footnote 2. As to whether an individual is "otherwise qualified" under the Rehabilitation
Act, see 192.
Footnote 3. As to what are essential functions, see 224.
Footnote 4. 29 CFR Part 1630, Appendix, 1630.2(m).
Footnote 5. 29 CFR 1630.2(n)(1).
Footnote 8.
224 What are the "essential functions" of a job

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The determination whether a person is a "qualified individual with a disability" under the
ADA involves a determination whether he or she can perform the "essential functions" of
the position in question with or without a reasonable accommodation. 9 The question of
whether a particular job function is essential initially focuses on whether the employer
requires incumbents to actually perform those functions.
Illustration: An employer cannot establish the fact that typing is an essential

function of a position if no other employees in that position have ever been required to
type. 10
If a job function is actually required to be performed, the next step focuses on whether
removing the function would fundamentally alter the position. 11
"Essential functions" are job duties that are fundamental and not marginal. 12
Illustration: A person with epilepsy applies for a job of group counselor at a juvenile
hall. A job offer extended to the applicant is withdrawn when the employer learns that
the applicant does not have a driver's license. While driving is required for
emergencies (to take a juvenile to the hospital, for example) and to transport juveniles
to court appearances, it is not "essential" that all group counselors be available to drive.
On any given shift, another group counselor could perform driving duty. The
"essential functions" requirement ensures that a person who cannot drive because of his
disability is not disqualified for these reasons if he can perform the actual duties of the
job. 13
An employer's judgment as to what functions of a job are essential must be given
consideration, and any written description prepared by an employer before advertising or
interviewing applicants for the job must be treated as evidence of the essential functions
of the job. 14
Reasons for considering a job function essential may include the following:
the position exists to perform the function; 15
the number of available employees to whom performance of the function may be
distributed is limited. This factor may influence a determination of whether a function is
essential either because of a low number of total available employees, or because of the
fluctuating demands of the businesses' operation. 16
the function is so highly specialized that the incumbent is hired for his expertise or
ability to perform the function.
Evidence of whether a particular function is essential may also include: 17
the amount of time spent on the job performing the function;
Illustration: If an employee spends the vast majority of his time working at a cash
register it would indicate that operating the register is an essential function.
the consequences of not requiring an incumbent to perform the function;
Illustration: While a firefighter may not regularly have to carry an unconscious adult
out of a burning building, the consequences of his inability to do so would be serious.
the terms of a collective bargaining agreement;
the work experience of past incumbents on the job;
the current work experience of incumbents in similar jobs. While this list is not
exhaustive in determining whether a function is essential, greater weight will be given to
the types of evidence included on the list than to other types of evidence. 18
The ADA does not limit an employer's ability to establish or change the content, nature
or functions of a job. It only requires that the qualifications of people with disabilities be
evaluated in relation to a job's essential functions. 19
Illustration: A grocery store manager may decide for legitimate business reasons to
combine the jobs of checker and bagger in the checkout line. To qualify for the
combined-duty job, a person with disabilities would have to be able to check out
merchandise and bag it. If, however, a person could perform this job except in a few
instances when very heavy items needed to be bagged, and other employees were
available to help, the person could still perform the essential functions of the
combined-duty job. 20
Any function of a job requiring a security clearance is an essential function. 21
224 ----What are the "essential functions" of a job [SUPPLEMENT]
Footnotes
Footnote 9. 223.
Footnote 10. 29 CFR Part 1630, Appendix, 1630.2(n).
Footnote 12. 29 CFR 1630.2(m).
Footnote 15.
Illustration: If an individual is hired to proofread documents, the ability to proofread

is an essential function because it is the only reason the position exists.
Illustration: If an employer has a small number of employees for the volume of work
to be performed, each employee may be required to perform a multitude of different
functions. Thus, the performance of each function by each employee is more critical,
since the options for reorganizing the work are more limited. Conversely, a larger staff
provides more options for work reorganization so that each individual function
becomes less essential. Furthermore, if work flow cycles create heavy and low demand
periods, each function required during peak periods is more critical due to the
employers limited flexibility during that time.
Footnote 17. 29 CFR 1630.2(n)(3).
Employment Opportunity Commission, January 28, 1992, 2.3.
Using job analysis to determine the essential functions of a job is discussed in 225.
225 Using job analysis to determine the essential functions of a job

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The ADA does not require that employers perform job analyses or any particular form of
job analysis to identify the essential functions of a job. However, job analysis is a useful
way to identify essential functions, whether through informal consultation with workers
and supervisors or a formal process. The focus of the analysis should be on the purpose
of the job and the importance of actual job functions in achieving that purpose,
considering how often a function is performed, the amount of time spent on the function,
and the consequences if the function is not performed. The focus on the end result should
emphasize what must be achieved, not how it is customarily achieved. Also, it may be
important to use environmental data, such as unusual heat, cold, humidity, dust, toxic
substances, and stress factors. A job analysis of this type will be useful in developing
qualifications criteria and job descriptions, conducting interviews, and selecting
employees in accordance with ADA requirements.
Illustration: An essential function of a computer programmer might be to develop

programs that accomplish necessary objectives, without specifying whether the
programs are to be written by hand, on a conventional computer, or on a computer that
translates instructions to speech. 22
Illustration: If a job requires learning information in technical manuals, the essential

function would be "ability to learn technical material," without specifying whether the
material is learned by reading, listening to an audiotape, or learning in some other way
by a learning disabled employee. 23
The kinds of job analyses developed in the past for other purposes may help to identify
essential functions of a job for ADA purposes, but are rarely sufficient. For example, a
job analysis often used to set wage rates classifies jobs according to how job tasks deal
with data, people, and objects will not identify essential functions of a job for ADA
purposes. 24
Observation: The focus on classification is the primary limitation of this kind of

analysis. The necessity for fitting a task into a pre-existing scheme often leads to a
skewing of the description of the task to comport with the desired result. Also, the
focus on the interrelationship between the task and data, people, and objects leads to
assumptions about how a task must be performed or how the job holder must relate to
people or use data, thus tending to screen out many persons with disabilities who were
capable of accomplishing the essential tasks of the job.
A job analysis that examines the knowledge, skills, and abilities necessary to perform a
job, usually for purposes of developing selection criteria, can be helpful in measuring the
importance of specific skills, knowledge and abilities, but does not take into account the
fact that disabled persons often perform a task using different skills and abilities. 25
An analysis that rates the importance of general characteristics necessary to perform a
job, such as "strength," "endurance," or "intelligence" typically does not link the
characteristics to specific job tasks, and, therefore, does not help to determine the
essential functions of a job for ADA purposes. For example, there is a vast difference
between a job that requires cardiovascular endurance and one that requires muscular
endurance. 26
225 ----Using job analysis to determine the essential functions of a job
[SUPPLEMENT]
Case authorities:
Since Rehabilitation Act (29 USCS 794) mandates only that services provided to
non-handicapped individuals not be denied to disabled person because he is handicapped,
in action by class of children with developmental disabilities who were formerly served
by municipal clinic which had been closed and its services transferred to other facilities,
plaintiffs were not entitled to preliminary injunction compelling reopening of clinic
where they did not identify any service or benefit being provided to persons without
disabilities that was denied to them. Cercpac v Health & Hosps. Corp. (1996, SD NY)
920 F Supp 488, 15 ADD 1036.
Footnotes
Employment Opportunity Commission, January 28, 1992, 2.3(b).
226 What constitutes undue hardship under the ADA

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The ADA's reasonable accommodation requirement does not have to be provided to a
"qualified individual with a disability" 27 if the covered entity can show that to do so
would impose an "undue hardship" on it. The Act defines an "undue hardship" as any
action requiring significant difficulty or expense, 28 taking into account such factors as:
the nature and cost of the required accommodation;
the overall financial resources of the facility involved and the covered entity;
the number of persons employed at the facility and by the covered entity's entire
business;
the effect of the required accommodation on expenses and resources;
the impact of the accommodation on the operation of the facility;

the number, type, and location of the covered entity's facilities;
the type of operation of the covered entity, including the composition, structure, and
functions of the its work force;
the geographic separateness of the facility involved;
the administrative or fiscal relationship of the facility to the covered entity. 29
No single factor is intended to have more weight in the evaluation. 30 Rather, the
weight given to each factor will vary depending upon the facts of the particular situation.
31
Furthermore, these factors are not intended to be exclusive, and in appropriate
circumstances relevant considerations may also include the number of employees or
applicants potentially benefiting from an accommodation.
Illustration: A ramp installed for a new employee who uses a wheelchair benefits
not only that employee, but will also benefit mobility-impaired applicants and
employees in the future. Assistive devices for hearing and visually-impaired persons
may also be shared by more than one employee so long as each employee is not denied
a meaningful equal employment opportunity. However, the fact that an
accommodation is used by only one employee should not be used as a negative factor
indicating undue hardship. 32
An employer's duty to provide a reasonable accommodation may include abolishing
barriers to equal employment opportunity for disabled individuals such as rigid work
schedules that permit no flexibility as to how work is performed or when breaks may be
taken, or inflexible job procedures that unduly limit the modes of communication used on
the job or the ways in which particular tasks are accomplished. 33
The concept of undue hardship takes into account the financial realities of the particular
employer, but is not limited to financial difficulties and refers to any hardship in
providing an accommodation that would be unduly costly, extensive, substantial, or
disruptive, or that would fundamentally alter the nature or operation of the business.
Illustration: If an individual with a disabling visual impairment that makes it

difficult for him to see in dim lighting applies for a position as a waiter in a nightclub
and requests the club to be brightly lit as a reasonable accommodation, the nightclub
will likely be able to demonstrate the undue hardship involved in providing the
accommodation. Although it would be inexpensive, bright lighting would destroy the
ambience of the club and might make it difficult for customers to see a stage show. 34
The fact that a particular accommodation requested imposes an undue hardship does not
relieve the employer of the obligation to provide an alternative accommodation that
would be reasonable under the statute. 35
Illustration: An employer who provides a lunch room with sink, refrigerator,

microwave, coffee makers, and seating for employees on the second floor of its
building, could provide a comparable lunch room on the first floor if installing an
elevator to take a mobility-impaired employee to the second floor would result in
undue hardship. However, putting a microwave and a coffee pot on a first floor table
would not satisfy ADA requirements. 36
Illustration: An employer would likely be able to show undue hardship if the

requested accommodation of an upward adjustment of the businesses' thermostat would
result in unduly warm surroundings for other employees, patrons, or customers.
However, if an alternative accommodation exists that would not result in undue
hardship, it would have to be provided.
An accommodation causing only a negative impact on the morale of other employees, but
not on their ability to perform their jobs, does not constitute an undue hardship. 37
A collective bargaining agreement may be relevant in determining whether a particular
accommodation is so unduly disruptive to other employees or the functioning of the
business that it would constitute an undue hardship. 38
Caution: The terms of a collective bargaining agreement may not be used to avoid
compliance with the ADA.
226 ----What constitutes undue hardship under the ADA [SUPPLEMENT]
629.
Footnotes
Footnote 27. As to who is a qualified individual with a disability, see 223.
Footnote 28. 42 USCS 12111(10)(A).
Footnote 29. 42 USCS 12111(10)(B).
Footnote 34. 29 CFR Part 1630, Appendix, 1630.2(p).

227 Expense as an undue hardship

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In determining the nature and cost of a needed accommodation under the ADA, the
availability of tax credits, deductions, and outside funding should be considered. 39 If
an employer receives or is eligible for funding from an external source, such as a state
vocational rehabilitation agency or a federal state or local tax credit, that would pay the
entire cost of an accommodation, it cannot claim cost as an undue hardship. 40 Also,
simply comparing the cost of an accommodation to the salary of a disabled individual
that needs the accommodation will not establish undue hardship. 41
When the cost of an accommodation imposes an undue hardship on the employer, the
disabled individual requesting the accommodation must be given the option of providing
the accommodation himself, or paying that portion of the cost which would otherwise
constitute an undue hardship on the employer. Furthermore, only the portion of the cost
of an accommodation that constitutes the final net cost to the employer may be
considered in determining undue hardship.
If an employer asserts that only the financial resources of the facility where the disabled
individual will be employed, rather than the overall financial resources of the employer,
should be used in determining whether an undue hardship exists, an analysis must be
made of the relationship between the employer's overall operation and the facility at
issue.
Illustration: If an independently owned fast food franchise that receives no money

from the franchisor refuses to hire an individual with a hearing impairment, because
the cost of an interpreter would be an undue hardship, only the financial resources of
the franchisee should be considered in determining whether the accommodation is an
undue hardship. This is because the financial relationship between the franchisor and
franchisee is limited to the latter's payment of an annual franchise fee. 42
227 ----Expense as an undue hardship [SUPPLEMENT]
629.
Footnotes
Footnote 39. 29 CFR 1630.2(p)(2)(i).
Footnote 42. 29 CFR Part 1630, Apendix, 1630.2(p).
IV. OTHER PROHIBITED DISCRIMINATION-RELATED

CONDUCT [228-267]
A. Retaliation Against Opponents of Discrimination [228-260]
Research References
5 USCS 2302; 29 USCS 206, 215, 623; 42 USCS 1981, 2000e- 3, 12203
P.L. 102-166 101(2) (Civil Rights Act of 1991)
7 CFR Part 15; 10 CFR Part 4; 13 CFR Part 112; 14 CFR Parts 379, 1250; 15 CFR
Part 8; 22 CFR Part 141; 24 CFR Part 1; 28 CFR Part 42; 29 CFR Parts 31, 1630; 32
CFR Part 300; 41 CFR Parts 60-1, 60-250, 60-741; 43 CFR Part 17; 45 CFR Parts 80,
611, 1010, 1110, 1203; 49 CFR Part 21
Discharge From Employment or Office; Equal Pay Act; Labor and Employment
7 Am Jur POF2d 1, Retaliatory Termination of Private Employment
12 Federal Procedural Forms, L Ed, Job Discrimination 45:123, 45:245
Employment Coordinator EP-12,300 et seq., EP-20,000 et seq.
Modjeska, Employment Discrimination Law 2d, 1:9, 4:11
1. In General [228-236]
228 Generally; retaliation prohibited by Title VII, the ADEA, and the ADA
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Retaliating against workers because they have opposed unlawful employment
discrimination is expressly prohibited by many of the federal and state 43 job
discrimination statutes.
Both Title VII of the Civil Rights Act of 1964 44
and the Age Discrimination in
Employment Act (ADEA) 45 make it unlawful to discriminate against an employee or
applicant because he has either (1) opposed an unlawful employment practice, or (2)
made a charge, testified, assisted, or participated in an investigation, proceeding, or
hearing under the statute. Under both statutes, this prohibition applies to an employer's
actions against its employees or job applicants, an employment agency's actions against
any individual, and a labor organization's actions against any of its members or applicants
for membership. The Title VII prohibition also applies to any joint labor-management
training committee's actions against any individual.
Observation: Title VII's provisions forbidding retaliation are often distinguished as

the "opposition clause" and the "participation clause." 46
Title VII's antiretaliation provisions must be read liberally to protect persons who file
administrative charges of discrimination and otherwise aid the EEOC's enforcement
function. 47
The ADEA protects individuals against unlawful retaliation even if they are not yet 40
years of age. 48
The Americans with Disabilities Act (ADA) prohibits the same retaliation as does Title
VII and the ADEA. 49 The ADA also expressly forbids anyone to coerce, intimidate,
threaten, or interfere with an individual's exercise of his rights under the statute, or to
take those actions against an individual because he assisted 50 or encouraged 51
another person in the exercise of such rights.
228 ----Generally; retaliation prohibited by Title VII, the ADEA, and the ADA
[SUPPLEMENT]
Practice Aids: The victimization of anti-discrimination complainants is it contempt
of court? 1993 Pub L 80 (1993).
Case authorities:
Employee who claims retaliatory discrimination cannot, on that basis, absolutely refuse
to work where his employer directs; right to oppose discrimination is not right to refuse
to work on account of discrimination. Hazel v United States Postmaster Gen. (1993, CA1
Mass) 7 F3d 1, 63 BNA FEP Cas 43, 62 CCH EPD 42617, summary op at (CA1 Mass)
14 R.I.L.W. 557.
Once prima facie case of retaliation is established, burden of production, not persuasion,
shifts to defendant employer to articulate plausible, legitimate and nondiscriminatory
justification for employment decision. Hazel v United States Postmaster Gen. (1993,
CA1 Mass) 7 F3d 1, 63 BNA FEP Cas 43, 62 CCH EPD 42617, summary op at (CA1
Mass) 14 R.I.L.W. 557.
Issue of retaliatory motive in employment discrimination case presents pure question of
fact, and trial court's determination is reviewed under clearly erroneous standard (under
which, court's inference must be affirmed if it is plausible). Hazel v United States
Postmaster Gen. (1993, CA1 Mass) 7 F3d 1, 63 BNA FEP Cas 43, 62 CCH EPD 42617,
summary op at (CA1 Mass) 14 R.I.L.W. 557.
Retaliatory acts must involve conduct that imposes penalty on employee (i.e. demotions,
adverse job recommendations, public humiliations, etc.); thus, promotion, or other action
that improves employee's employment benefits, cannot be considered retaliatory based on
its adverse impact on employee's ability to invoke statutory rights. Morrissey v Boston
Five Cents Sav. Bank FSB (1994, DC Mass) 866 F Supp 643, 66 BNA FEP Cas 630.
Showing by Title VII plaintiff that employer's justification was false does not compel
finding of liability; even after so demonstrating, plaintiff retains ultimate burden of
proving that employer's action was prompted by impermissible motive. Saulpaugh v
Monroe Community Hosp. (1993, CA2 NY) 4 F3d 134, 62 BNA FEP Cas 1315, 62 CCH
EPD 42540.
Trial court properly determined that employee's letter to his congressman, though not
artfully drawn, constituted "opposition" within meaning of 42 USCS 2000e-3(a), since
letter, which stated that one of employee's supervisors seemed bent on harassing black
employees and that supervisor was responsible for other minority employees being
terminated or transferred, sufficiently articulated employee's opposition to racial
discrimination at bus garage where he worked. Robinson v Southeastern Pennsylvania
Transp. Authority, Red Arrow Div. (1993, CA3 Pa) 982 F2d 892, 60 CCH EPD 41983.
District court, in former employee's Title VII retaliation suit, which alleged that
requirement of her former university employer that she obtain prior approval before
entering upon campus was in retaliation for filing of earlier charge with EEOC (which
had been settled), properly granted summary judgment in favor of defendant, because
prior approval requirement could not give rise to retaliation claim, as requirement had no
impact on any employment relationship that plaintiff had, or might have in future. Nelson
v Upsala College (1995, CA3 NJ) 51 F3d 383, 67 BNA FEP Cas 525, 66 CCH EPD
43494.
Primary focus in determining whether plaintiff states claim under 42 USCS 2000e-3(a)
should be on whether alleged retaliation either arose from employment relationship or
was related to employment. Robinson v Shell Oil Co. (1995, CA4 Md) 66 BNA FEP Cas
1284.
Protection against retaliation afforded by Title VII to employees extends to former
employees. Robinson v Shell Oil Co. (1995, CA4 Md) 66 BNA FEP Cas 1284.
Title VII plaintiff may recover for retaliatory actions taken after her employment with
defendant employer ceased if alleged discrimination is related to or arises out of
employment relationship. Jensvold v Shalala (1993, DC Md) 62 BNA FEP Cas 1177.
Generally, claim that employer retaliated against employee for filing workers'
compensation claim is not preempted by 29 USCS 185. Graef v Chemical Leaman
Tank Lines (1994, ED Tex) 860 F Supp 1170.

Plaintiff may file Title VII retaliation action against previous employer for retaliatory
conduct occurring after end of employment relationship when retaliatory act is in reprisal
for protected act within meaning of 42 USCS 2000e-3(a) and arises out of or in
relation to employment relationship. Fields v Phillips Sch. of Business & Technology
(1994, WD Tex) 870 F Supp 149, 66 BNA FEP Cas 912.
Employer, who rescinded its offer to reinstate discharged black employee following
meeting with management at which another employee, who was acting as discharged
employee's representative, protested such discharge, violated Title VII, because it
withdrew its reinstatement offer in retaliation for co-employee's engaging in protected
activity. EEOC v Ohio Edison Co. (1993, CA6 Ohio) 7 F3d 541, 63 BNA FEP Cas 65, 62
CCH EPD 42614.
Even if employee's protected conduct is substantial element in employer's decision to
terminate him, employer will not be liable under Title VII if employee would have been
discharged in absence of protected activity. Maness v Star-Kist Foods (1993, CA8 Minn)
7 F3d 704, 63 BNA FEP Cas 47, 62 CCH EPD 42567, reh, en banc, den (CA8) 1993
US App LEXIS 30920.
Employer, who, after learning at deposition that employee, who had filed action alleging
violations of Title VII (42 USCS 2000e et seq.) and Equal Pay Act, had taken some
confidential documents, fired employee, did not thereby retaliate against employee, since
employee's wrongdoing was of such severity that she would have been terminated in any
event. Carlson v American Meter Co. (1995, DC Neb) 68 BNA FEP Cas 193.
42 USCS 2000e-3 prohibits two forms of retaliation, i.e. retaliation for opposing any
practice made unlawful employment practice by Title VII (opposition), and retaliation for
making charge, testifying, assisting or participating in any manner in investigation,
proceeding or hearing under Title VII (participation). Pfister v Bryan Memorial Hosp.
(1995, DC Neb) 874 F Supp 993, 67 BNA FEP Cas 163.
For purposes of retaliation claims under ADEA, court, in determining whether
employee's conduct constituted protected activity, must balance purpose of ADEA to
protect persons engaging reasonably in activities opposing discrimination, against
Congress' equally manifest desire not to tie hands of employers in objective selection and
control of personnel. O'Day v McDonnell Douglas Helicopter Co. (1996, CA9 Ariz) 79
F3d 756, 96 CDOS 2004, 96 Daily Journal DAR 3398, 70 BNA FEP Cas 615, 67 CCH
EPD 43964.
If employer refuses to consider former employee for future employment because she
previously brought Title VII claim that employer had to settle, employer would be in
violation of Title VII; however, if employer relies not on fact that it settled former
employee's Title VII claim, but rather on terms pursuant to which claim was settled,
employer does not necessarily violate Title VII. Kendall v Watkins (1993, CA10 Okla)
ADEA retaliation claim does not require that plaintiff prevail on underlying claim of
discrimination. Ingels v Thiokol Corp. (1994, CA10 Utah) 42 F3d 616.
42 USCS 2000e-3(a) protects former employees. Berry v Stevinson Chevrolet (1996,
CA10 Colo) 74 F3d 980, 69 BNA FEP Cas 1320, 67 CCH EPD 43851.
42 USCS 2000e-3(a) protects former employees. Berry v Stevinson Chevrolet (1996,
CA10 Colo) 74 F3d 980, 69 BNA FEP Cas 1320, 67 CCH EPD 43851.
Malicious prosecution can constitute adverse employment action for purposes of 42
USCS 2000e-3. Berry v Stevinson Chevrolet (1996, CA10 Colo) 74 F3d 980, 69 BNA
FEP Cas 1320, 67 CCH EPD 43851.
For purposes of ADEA retaliation claim, employee who files charge of discrimination
with state agency is engaging in proceeding arising out of discrimination. Corneveaux v
CUNA Mut. Ins. Group (1996, CA10 Utah) 76 F3d 1498, 70 BNA FEP Cas 247.
To establish prima facie case of retaliation, plaintiff must show that she was engaged in
protected opposition to Title VII discrimination or participated in Title VII proceeding,
she was disadvantaged by action of her employer subsequent to or contemporaneous with
such opposition or participation, and there is causal connection between protected
activity and adverse employment action. Warren v K Mart Corp. (1993, DC Kan) 61
BNA FEP Cas 1364.
To establish prima facie case of retaliation, plaintiff must show that he participated in
activity protected under Title VII, that he was adversely affected by employment decision
contemporaneously with or subsequent to protected activity, and that causal connection
exists between protected activity and adverse action. Tourtillott v Maryland Casualty Co.
(1993, DC Kan) 62 BNA FEP Cas 1528.
Plainly absent from language of 29 USCS 623(d) is any protection for persons who
simply champion cause of older worker, even if advocate acts out of unarticulated belief
that employer is discriminating on basis of age; thus, liability will not attach unless
activity in question advances beyond advocacy and into recognizable opposition to
employment practice that claimant reasonably believes to be unlawful. Garcia-Paz v
Swift Textiles (1995, DC Kan) 873 F Supp 547, 8 ADD 172, 3 AD Cas 1844.
Plaintiff's Title VII claims had to be dismissed, where plaintiff's complaint alleged that
defendant's unlawful acts in removing her from position and other acts of harassment and
discrimination were taken as result of her filing of formal equal employment opportunity
complaints, which were based solely on age discrimination and retaliation for filing
complaint of age discrimination. Schmid v Shalala (1994, ND Ga) 64 BNA FEP Cas
1725.
Complaints that Title VII plaintiff had made when he was student at university regarding
recreational course project held at country club that did not allow blacks as members
were irrelevant to plaintiff's retaliatory discharge claim against university. Peters v Board
of Regents (1994, ND Ga) 855 F Supp 364, 65 BNA FEP Cas 166.
29 USCS 623(d) cannot be interpreted as creating, even implicitly, retaliation claim
against federal employers. Tomasello v Rubin (1996, DC Dist Col) 920 F Supp 4.
A male police officer could not recover under 42 U.S.C. 1983 for an alleged violation
of his equal protection rights based upon allegations that he was passed over for
promotions, targeted for disproportionate punishments and harassed because he
supported his wife, also a police officer, in her efforts to correct gender discrimination by
defendants since the right to be free from retaliation for protesting sexual harassment or
discrimination is created by Title VII of the Civil Rights Act of 1964, not the equal
protection clause. Morrison-Tiffin v Hampton (1995) 117 NC App 494, 451 SE2d 650,
app dismd, review den 339 NC 739, 454 SE2d 654.
Railway Labor Act preempted former airline employee's cause of action for retaliatory
discharge for filing workers' compensation claim. Rutherford v Northwest Airlines (1994,
Tenn App) 880 SW2d 947, 127 CCH LC 11032.
Footnotes
Footnote 43.
State Aspects Antiretaliation provisions in state job discrimination statutes are
discussed in Employment Coordinator EP-12,300 et seq. State "whistleblower" laws
are summarized, in an unjust dismissal context, at Employment Coordinator
EP-20,000 et seq.
Annotation: Construction and application of 704(a) of Civil Rights Act of 1964 (42
USC 2000e-3(a)), making it unlawful employment practice to discriminate against
individual for participation in equal opportunity proceedings or activities, 11 ALR Fed
316.
Forms: Allegations in complaintSex discrimination by employerRefusal to renew
contract of male applicantRetaliation for discrimination charges filed by spouse [42
USCS 2000e-2, 2000e-3]. 12 Federal Procedural Forms, L Ed, Job Discrimination
45:123.
7 Am Jur POF2d 1, Retaliatory Termination of Private Employment.
Law Reviews: A question of retaliation: Oppositional conduct as protected expression
under Title VII of Civil Rights Act of 1964. 29 B C L Rev 391 (1988).
Footnote 46. 234.
Footnote 47. EEOC Decision No. 77- 29 (1977), 21 BNA FEP Cas 1790, CCH EEOC
Dec 6585.
Footnote 48. Anderson v Phillips Petroleum Co. (1989, DC Kan) 722 F Supp 668, 52
CCH EPD 39725.
Footnote 51. 29 CFR 1630.12(b)
229 Retaliation prohibited by the Equal Pay Act

View Entire Section
The Equal Pay Act, which is a part of the Fair Labor Standards Act, prohibits a person
from discharging or otherwise retaliating against an employee for filing a complaint,
instituting a proceeding, or testifying in a proceeding. 52
The law also prohibits
retaliation against employees who are about to do each of these things. 53 Thus, an
employer violated both Title VII and the Equal Pay Act by discharging an employee who
complained to her employer about sex discrimination in salaries. Discharge for asserting
statutory rights in good faith constitutes retaliation under the statute. 54 Unofficial
complaints are an assertion of rights under the statute, and a broad construction of the
provision furthers the Congressional intent to remove fear of economic retaliation for
such activity. 55
Footnotes
Forms: Allegation in amended complaintIn collective action by employees for
discrimination by employer in payment of wages on basis of sexCharging retaliatory
conduct in response to Equal Pay Act claim [29 USCS 215(a)(3)]. 12 Federal
Procedural Forms, L Ed, Job Discrimination 45:245.
Practice References 7 Am Jur POF2d 1, Retaliatory Termination of Private
Employment.
Modjeska, Employment Discrimination Law 2d, 4:11.
Footnote 54. Love v Re/Max of America, Inc. (1984, CA10) 738 F2d 383, 35 BNA FEP
Cas 565, 34 CCH EPD 34515.
Footnote 55. EEOC v White & Son Enterprises (1989, CA11) 881 F2d 1006, 50 BNA
FEP Cas 1076, 29 BNA WH Cas 719, 51 CCH EPD 39270, 112 CCH LC 35253.
230 Retaliation prohibited by the early Civil Rights Acts

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The right to be free from racial discrimination in the making and enforcement of
contracts, guaranteed under 1981 56 as amended by the Civil Rights Act of 1991, 57
is intended to cover retaliation. 58 The Civil Rights Act of 1991's amendment of 1981
supersedes 59 the Supreme Court's prior ruling that 1981 only applied to the formation
and enforcement of employment contracts, and not to any postformation conduct by the
employer. 60
The lower courts were split regarding the effect of the Supreme Court's ruling on 1981
claims alleging retaliation for opposing racial discrimination in employment. Some
courts focused on the nature of the oppositional activity alleged to be the subject of
retaliation, finding that 1981 did not cover reprisal for opposition to discriminatory
conduct occurring after contract formation 61 or for asserting statutory rather than
contractual rights. 62 Others focused on the nature of the allegedly retaliatory conduct,
finding that 1981 did not cover retaliatory acts that did not obstruct an employee's
access to administrative or civil processes. 63 Still others construed 1981 to cover
any act that punished an employee for or deterred an employee from seeking relief from
discrimination that was unlawful under 1981. 64
Observation: It remains to be seen whether the types of retaliation now prohibited

under 1981 include reprisal for opposing racial discrimination against persons other
than the victims of retaliation or for enforcement efforts instituted under laws other
than 1981 that prohibit racial discrimination.
Because religious discrimination is irrelevant for purposes of 42 USCS 1981, an
employee who is discharged after complaining to his employer about religious
discrimination against other employees cannot maintain an action under 1981. 65
In addition, 42 USCS 1981 does not provide a cause of action for discharge in
retaliation for assisting in a sex discrimination suit, since sex discrimination is not
forbidden by that law. 66
Observation: While the similarity of proof considerations 67 between Title VII and
1981 lends support for finding that similar causes of action exist for retaliation under
both statutes, the fact remains that retaliation is not expressly prohibited in 1981 as it
is under Title VII. However, within the limitations of coverage of employment
transactions by 1981, and to the extent that a 1981 claim involves both racial
discrimination and retaliation for opposing that same racial discrimination, it is more
reasonable for a court to address the retaliation charges. Not to do so would make the
statute ineffective as to its primary purpose of eradicating racial discrimination. Still,
where the alleged retaliation is not strongly connected to an underlying claim of race
discrimination, the viewpoint that retaliation is not covered under 1981 is arguably
the better one.
There is also no cause of action under either 42 USCS 1983 or 1985 for retaliation,
since neither 1983 nor 1985 creates substantive rights. 68
230 ----Retaliation prohibited by the early Civil Rights Acts [SUPPLEMENT]
Case authorities:
Allegation that mayor and other city officials during course of their employment plotted
to injure former city council member in retaliation for his political views was sufficient to
support 42 USCS 1983 claim of retaliation under color of law for exercise of First
Amendment rights. Zilich v Longo (1994, CA6 Ohio) 34 F3d 359, 1994 FED App 307P,
reh, en banc, den (1994, CA6 Ohio) 1994 US App LEXIS 30707.
Former receptionist's sexual harassment claim against supervisors may proceed, where
intoxicated supervisor apparently committed fourth degree sexual assault against
receptionist, then others retaliated against her for refusing to accept personal apology of
supervisor, because allegations of specific, coordinated action among defendants support
inference that they acted pursuant to agreement, and are sufficient to state federal
conspiracy claim under 42 USCS 1985(3). Stefanski v R.A. Zehetner & Assocs. (1994,
ED Wis) 855 F Supp 1030, 65 BNA FEP Cas 539.
White employee had standing under 42 USCS 1985 to complain that he suffered illegal
retaliation because he assisted a black person who was discriminated against in hiring
process. Maynard v City of San Jose (1994, CA9 Cal) 37 F3d 1396, 94 CDOS 7824, 94
Daily Journal DAR 14447, 66 BNA FEP Cas 123, amd (1994, CA9 Cal) 94 CDOS 8837,
94 Daily Journal DAR 16401.
Action by white male school teacher against school district and employees under 42
USCS 1981 is not dismissed, where teacher alleged that defendants retaliated against
him because of his efforts to vindicate rights of Native Americans, because injury for
which teacher sought redress stemmed from defendants' discrimination against Native
Americans but could not be redressed by direct targets of that discrimination since injury
was retaliation against him. Clemes v Del Norte County Unified Sch. Dist. (1994, ND
Cal) 843 F Supp 583, 94 Daily Journal DAR 2124.
Female police officers' 1983 claim that their respective letters of reprimand were
racially and sexually discriminatory and were issued to retaliate against them for
complaining about acts of racial and sexual discrimination within their unit must fail,
where reprimands were for (1) taking unauthorized vacation leave, and (2) calling fellow
officers demeaning names and telling offensive joke, because issuance of letters was
objectively reasonable, and officers presented no specific evidence that letters were
improperly motivated. Redpath v City of Overland Park (1994, DC Kan) 857 F Supp
1448, claim dismissed sub nom Jones v City of Overland Park (1994, DC Kan) 1994 US
Dist LEXIS 15177, summary judgment gr, judgment entered (1994, DC Kan) 1994 US
Dist LEXIS 15178.
Former fire chief stated 42 USCS 1983 claim that city officials violated his First
Amendment rights by attempting to chill protected expression by disciplining and
terminating him in retaliation for his public and private opposition to city budget-cutting
policy. Beckwith v City of Daytona Beach Shores (1995, CA11 Fla) 58 F3d 1554, 9 FLW
Fed C 301.
Teacher who claimed retaliatory discharge after his contract was not renewed is not
entitled to 1983 relief against department chairman and dean in individual capacities,
where teacher complained to dean that chairman was eavesdropping on his phone calls,
department chairman subsequently gave teacher poor review and refused to renew his
one-year contract, teacher brought grievance based on discharge, but withdrew it,
because 1983 relief for denial of procedural due process is not available where due
process procedures exist but party chooses not to use them. Thomas v Devries (1993, MD
Ga) 834 F Supp 398.
A male police officer could not recover under 42 U.S.C. 1983 for an alleged violation
of his equal protection rights based upon allegations that he was passed over for
promotions, targeted for disproportionate punishments and harassed because he
supported his wife, also a police officer, in her efforts to correct gender discrimination by
defendants since the right to be free from retaliation for protesting sexual harassment or
discrimination is created by Title VII of the Civil Rights Act of 1964, not the equal
protection clause. Morrison-Tiffin v Hampton (1995) 117 NC App 494, 451 SE2d 650,
app dismd, review den 339 NC 739, 454 SE2d 654.
Female faculty members' claim under 42 USCS 1983 of alleged retaliation by
university based on their allegations of sex discrimination underlying university's
decision to close dental hygiene program would fail, where faculty members failed to
show that they had any right to be included in various review committees planning dental
hygiene program phaseout, or that their noninclusion was because of their allegations of
sex discrimination, and no evidence tended to establish that university's phaseout of
program or its means of accomplishing that goal involved adverse employment actions.
Brine v University of Iowa (1996, CA8 Iowa) 90 F3d 271, 71 BNA FEP Cas 490, reh, en
banc, den (1996, CA8) 1996 US App LEXIS 24791.
Footnotes
Footnote 56. 42 USCS 1981
Footnote 57. P.L. 102-166 101(2).
Footnote 58. H Rept No. 101-40, Part 1, 4/24/91, pp. 92-93; H Rept No. 102-40, Part 2,
5/17/91, p. 37.
For a discussion of 1981 claims involving a union member's contractual rights, see
246.
Practice References Am Jur POF2d 1, Retaliatory Termination of Private
Employment.
Footnote 60. Patterson v McClean Credit Union (1989) 491 US 164, 105 L Ed 2d 132,
Footnote 61. Second CircuitDuse v International Business Machines Corp. (1990, DC
Conn) 748 F Supp 956.
Fourth CircuitLytle v Schwitzer, U.S., Inc (1991, ED NC) 55 BNA FEP Cas 916.
Fifth CircuitJackson v GTE Directories Service Corp. (1990, ND Tex) 734 F Supp
258, 54 BNA FEP Cas 1185.
Sixth CircuitPenn v Rockwell International Corp. (1990, SD Ohio) 756 F Supp 1040.
Seventh CircuitMaldonado v Metra (1990, ND Ill) 743 F Supp 563, 53 BNA FEP Cas
922.
Tenth CircuitHarris v Presbyterian/Saint Luke's Medical Center (1991, DC Colo) 758
F Supp 636.
DC CircuitWilliams v National R. Passenger Corp. (1989, DC Dist Col) 716 F Supp
Footnote 62. Fifth CircuitCarter v South Cent. Bell (1990, CA5) 912 F2d 832, 54 BNA
FEP Cas 1110, 54 CCH EPD 40272, cert den (1991, US) 115 L Ed 2d 1079, 111 S Ct
Seventh CircuitMozee v American Commercial Marine Service Co. (1991, CA7) 940
DC CircuitWilliams v National R. Passenger Corp. (1989, DC Dist Col) 716 F Supp
Footnote 63. Second CircuitMatthews v Northern Telecom, Inc. (1989, SD NY) 52
BNA FEP Cas 1645; Franchesi v EDO Corp. (1990, ED NY) 736 F Supp 438, 54 BNA
FEP Cas 1307; Duse v International Business Machines Corp. (1990, DC Conn) 748 F
Supp 956.
Fourth CircuitWilliams v First Union Nat. Bank (190, CA4) 920 F2d 232, 55 BNA
258, 54 BNA FEP Cas 1185.
Sixth CircuitPenn v Rockwell International Corp. (1990, SD Ohio) 756 F Supp 1040.
Ninth CircuitOverby v Chevron USA, Inc. (1989, CA9) 884 F2d 470, 50 BNA FEP
Cas 1211, 4 BNA IER Cas 1266, 132 BNA LRRM 2334, 51 CCH EPD 39316, 113
CCH LC 56140.
Eleventh CircuitSherman v Burke Contracting, Inc. (1990, CA11) 891 F2d 1527, 51
Footnote 64. Second CircuitColeman v Dow Chemical Co. (1990, DC Conn) 747 F
Supp 146, 55 CCH EPD 40526.
Fifth CircuitOliver v Elmwood Medical Center (1990, ED La) 1990 US Dist LEXIS
3720.
Tenth CircuitJackson v City of Albuquerque (1989, CA10) 890 F2d 225, 51 BNA FEP
Cas 669, 52 CCH EPD 39489.
Footnote 65. Abel v Bonfanti (1985, SD NY) 625 F Supp 263, 42 BNA FEP Cas 132, 39
CCH EPD 35893.
Footnote 66. Rowlett v Anheuser-Busch, Inc. (1987, CA1) 832 F2d 194, 44 BNA FEP
Cas 1617, 44 CCH EPD 37428.
Footnote 67. As to the burden and order of proof in cases under Title VII and under
1981, see 2714 et seq.
Footnote 68. Glasper v Olathe, Dept. of Public Safety (1988, DC Kan) 1988 US Dist
LEXIS 5862.
231 Other federal retaliation prohibitions

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Retaliation that interferes with the filing of a complaint, the furnishing of information, or
with assistance or participation in any activity related to the administration of the
antidiscrimination obligations for federal contractors and subcontractors is prohibited
under Executive Order 11246, 69 the Rehabilitation Act, 70 and the Veterans
Assistance Act. 71 Furthermore, retaliation against workers on federally assisted
programs that interferes with any right or privilege secured by Title VI is also prohibited.
72
The Rehabilitation Act also forbids retaliation by federal funding recipients against any
individual, regardless of whether he is handicapped, because he has asserted a right under
the Act. 73
Retaliation against a federal employee or applicant for having filed complaints, or having
testified or otherwise participated in a proceeding or investigation involving the Inspector
General of an agency or the Special Counsel of the Justice Department, is unlawful under
federal merit system law. 74
231 ----Other federal retaliation prohibitions [SUPPLEMENT]
Regulations:

Case authorities:
City employees who were fired after taking part in work stoppage to protest city's race
discrimination policies and practices failed to state claim under 42 USCS 1981, where
employees charged retaliatory discharge as result of good-faith reporting of race
discrimination and maintenance of racially hostile work environment, because discharge
is not actionable under 1981 as matter of law, and racial harassment is not actionable
under 1981, but under Title VII. Turner v City of Beaumont (1993, ED Tex) 835 F
Supp 916.
Court lacked jurisdiction of former federal employee's claim that he was wrongfully
discharged in retaliation for his activities in furtherance of qui tam suit under False
Claims Act, since False Claims Act does not create remedy for federal employees in
addition to those provided in CSRA, even for probationary employees such as plaintiff
who have no remedy under CSRA. LeBlanc v United States (1995, CA FC) 50 F3d 1025.
Appellant's filing FECA claim that allegedly disclosed sexual harassment was activity
protected against reprisal by 5 USCS 2302(b)(1)(A) and Congress did not intend to
include such matters under subsection (b)(8); this interpretation comports with Congress'
efforts to preserve EEOC's continuing leadership role in ongoing battle to eradicate
discrimination. Von Kelsch v Department of Labor (1993, MSPB) 59 MSPR 503.
Footnotes
Footnote 69. 41 CFR 60-1.32.
Footnote 70. 41 CFR 60-741.51.
Footnote 71. 41 CFR 60-250.51.
Practice References 7 Am Jur POF2d 1, Retaliatory Termination of Private
Employment.
Footnote 72. 7 CFR 15.7 (Department of Agriculture); 10 CFR 4.45 (Nuclear
Regulatory Commission); 13 CFR 112.10(e) (Small Business Administration); 14 CFR
379.6(e) (Civil Aeronautics Board); 14 CFR 1250.106(e) (National Aeronautics and
Space Administration); 15 CFR 8.9 (Department of Commerce); 22 CFR 141.6(e)
(Department of State); 24 CFR 1.7(e) (Department of Housing and Urban

Development); 28 CFR 42.107(e) (Department of Justice); 29 CFR 31.7(e)
(Department of Labor); 32 CFR 300.8(e) (Department of Defense); 43 CFR 17.6(e)
(Department of the Interior); 45 CFR 80.7(e) (Department of Health and Human
Services); 45 CFR 611.7(e) (National Science Foundation); 45 CFR 1010.8(e)
(Community Services Administration); 45 CFR 1110.7(e) (National Foundation on the
Arts and the Humanities); 45 CFR 1203.7(e) (ACTION); 49 CFR 21.11(e)
Footnote 73. 28 CFR 42.503(b)(1)(vii).
232 Special processing of retaliation charges

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The EEOC demonstrates a special concern for alleged violations of retaliation under the
ADEA and Title VII by handling retaliation charges on a priority basis, and by seeking
temporary and preliminary relief when appropriate. 75
Footnotes
233 Settling retaliation claims

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Where the EEOC has determined that an employee has been retaliated against for equal
employment activities, the agency will expect any conciliation agreement to provide that:
the respondent will cease and desist from committing any retaliatory acts against the
charging party that are unlawful under Title VII; 76
the respondent will eliminate specific factors which permitted the acts of retaliation, and
correct any factors that could result in their recurrence; 77
the respondent will develop and disseminate a clear and direct policy forbidding
retaliation and providing for disciplinary action against violators; 78
the charging party will be reinstated (if necessary), and receive other appropriate relief
and backpay; 79
derogatory references stemming from the charging party's opposition to discrimination
will be expunged from his personnel records. 80
Even a settlement agreement may not end the matter. Since an employee cannot waive
the right to file a charge because it is against public policy, discontinuing a former
employee's severance and medical benefits because he had filed an EEOC charge was
unlawful retaliation, despite the conditioning of the severance package on his execution
of a release from all discrimination claims. 81
While making settlements contingent on a complainant's withdrawal of a prior EEOC
complaint can, in some circumstances, constitute illegal retaliation, the mere fact that a
plaintiff's reinstatement was part of a settlement requiring him to withdraw his
discrimination complaint did not prove retaliation. To find that the charging party's
voluntary withdrawal of his complaint was retaliatory would have hampered the
effectiveness of nonjudicial dispute resolution. Also, there was insufficient evidence that
the withdrawal was induced for a retaliatory reason. 82
Observation: Settlements may engender retaliation claims where an employee's

expectations are raised by receiving a conditional promise from the employer, such as
priority consideration for a promotion, but later becoming disappointed when he does
not obtain what he reasonably expected. For an example of how an employer proves
that its actions under the agreement are not pretextual under these circumstances, see
260.
Recommendation: When a settlement agreement's terms leave discretion to take a

promised action in the employer's hands, employers should attempt to clarify the
standard used to exercise discretion and maintain clear and full documentation of its
compliance with that standard, or risk being found in breach of the agreement as well
as guilty of retaliation.
Footnotes
Footnote 81. EEOC v Cosmair, Inc., L'Oreal Hair Care Div. (1987, CA5) 821 F2d 1085,
8 EBC 2185, 44 BNA FEP Cas 569, 43 CCH EPD 37261.
Footnote 82. Pendleton v New York State Dept. of Correctional Services (1985, SD NY)
615 F Supp 522, 41 BNA FEP Cas 548, affd without op (CA2) 788 F2d 6, 41 BNA FEP
Cas 584, cert den 479 US 835, 93 L Ed 2d 75, 107 S Ct 131, 41 BNA FEP Cas 1712.
234 Distinction between oppositional and participatory actions

View Entire Section
There is a distinction in Title VII between retaliation claims made under the "opposition
clause" and the "participation clause." 83 For example, an employee who informed her
employer and co-workers that she would complain to the local human relations
commission if not given a proper explanation for her failure to be promoted, and who
filed a discrimination charge a few weeks later, raised a claim under the "opposition
clause," not the "participation clause," of Title VII's antiretaliation provision. The
conduct fell within the opposition clause because the filing of the charge was remote in
time from the alleged retaliatory act, and because, in communicating her intentions to her
employer and co-workers, the employee was not merely forming an intention to file
charges, but was openly opposing the employer's racial policies. 84
Observation: From the statutory language used it is reasonable to conclude that the
purpose of the "opposition clause" is to forbid retaliation for opposing other acts the
statute has made unlawful, while the purpose of the "participation clause" is to protect
the integrity of the administrative and judicial processes established to resolve disputes
under the law. The distinction between the two kinds of retaliation claims is also
important when deciding whether the claimant has to show good faith. 85
Footnotes
Footnote 83. 228.
Footnote 84. Reeder-Baker v Lincoln Nat. Corp. (1986, ND Ind) 649 F Supp 647, 42
BNA FEP Cas 1567, affd (CA7) 834 F2d 1373, 45 BNA FEP Cas 985, 45 CCH EPD
37617.
Footnote 85. As to the requirement of good faith under the opposition clause, see 238.
As to the requirement of good faith under the participation clause, see 241.
235 Relationship between retaliation and type of discrimination

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Go to Supplement
There is a difference of opinion as to whether protection under the "participation" clause

is limited to situations where the underlying discrimination is unlawful under Title VII.
While Title VII protects against retaliation for bringing an action alleging discrimination
prohibited by the statute, like sex discrimination, regardless of whether the discrimination
complaint was brought under Title VII or another statute, 86 the Ninth Circuit has held
that the "participation" clause requires the underlying discrimination to be reasonably
perceived by the plaintiff as discrimination forbidden by Title VII. Therefore, when the
plaintiff's charge involved handicap discrimination, his participation in proceedings
involving discrimination not covered by Title VII was not protected from retaliation. 87
Observation: By invoking a type of "good faith" requirement under the

"participation" clause, the Ninth Circuit has adopted a position opposite to other
decisions stating that the "participation" clause covers meritless, unfounded, and even
malicious charges filed under Title VII. 88
Adverse actions based on participation in a proceeding with no connection to allegations
of discrimination do not constitute unlawful retaliation. For example, no retaliation
occurred when an employee claimed he was adversely treated because he testified in an
arbitration hearing unrelated to his Title VII case, and nothing in the record suggested
that the arbitration proceeding had anything to do with racial discrimination against the
individual on whose behalf he testified. 89
Title VII's "opposition clause" also does not protect employees from an adverse
employment action which results from the employee's opposition to employment
practices that do not violate Title VII. Thus, an employee who was terminated for
aggressively attempting to implement affirmative action plans that would comply with
Executive Order 11246 did not have a retaliation action under Title VII for retaliation.
She was not opposing conduct that violated Title VII, since affirmative action is not
mandatory under that statute. 90
235 ----Relationship between retaliation and type of discrimination
[SUPPLEMENT]
Case authorities:
Evidence of causal link may be satisfied by evidence of circumstances which justify
inference of retaliatory motive; to draw such inference, court may consider time which
elapsed from date of plaintiff's Title VII conduct and employer's alleged retaliation.
Devine v Whelan (1993, SD NY) 64 BNA FEP Cas 574.
Footnotes
Footnote 86. Wu v Thomas (1989, CA11) 863 F2d 1543, 48 CCH EPD 38622.
Footnote 87. Learned v Bellevue (1988, CA9) 860 F2d 928, 48 BNA FEP Cas 482, 4
BNA IER Cas 262, 48 CCH EPD 38423, cert den 489 US 1079, 103 L Ed 2d 835,
109 S Ct 1530, 49 BNA FEP Cas 464, 4 BNA IER Cas 288, 50 CCH EPD 38962.
Footnote 88. 241.
Footnote 89. Simpson v Consolidated Edison of New York, Inc. (1988, SD NY) 1988 US
Dist LEXIS 4355.
Footnote 90. Holden v Owens-Illinois, Inc. (1986, CA6) 793 F2d 745, 41 BNA FEP Cas
236 When discipline may be imposed for oppositional or participatory acts

View Entire Section
While the protection afforded by Title VII's antiretaliation provisions is intended to be
broad, it is not without limits. Title VII does not require an employer to refrain from
disciplining an employee who commits unlawful acts in the course of opposing
discrimination, nor does it provide immunity to an employee who acts in an openly
disloyal, disruptive, or otherwise uncooperative fashion. 91 Furthermore, if an
employee's protests interfere with her job performance to the extent she is rendered
ineffective, an employer may fire her 92 or change the nature of the work. 93
However, the disruption must be caused by the employee's actions, not by the employer's
response to those actions, in order for the employer to lawfully impose discipline. 94
In applying the antiretaliation provisions, a court will balance the statute's goal of
encouraging reasonably expressed opposition to discrimination against the recognized
perogative of an employer to maintain discipline and a stable working environment. For
example, it was not unlawful for an employer to suspend and later discharge its Manager
of EEO Programs who, having filed a charge with EEOC, attempted to become a class
representative and to encourage other employees to file claims against the employer. The
balancing test favored the employer in this situation, because the employee's rights did
not depend on others joining her suit and her actions made her both ineffective in her
position and harmful to the employer's defense of other discrimination suits. 95
Employers have also been held justified in disciplining employees who:
participated in a demonstration in a hospital's food service area, after having been
warned that the demonstration could disrupt feeding the patients and that it was not
condoned by hospital officials; 96
in the course of objecting to alleged sex discrimination against her, made complaints to
colleagues that damaged relationships among members of her professional group and
sometimes interfered with work, told other employees that the employer was in jeopardy
of losing its federal grant money, challenged a supervisor to take sides in her ongoing
dispute with the employer, and made an unauthorized disclosure of the employer's
confidential matters; 97
copied and disseminated a confidential personnel form in an effort to protest alleged sex
discrimination against another employee; 98
participated in a work stoppage that violated the provisions of a collective bargaining

agreement; 99
in the course of protesting racial discrimination, repeatedly left her work area without
permission, and barged into conferences and meetings of managerial personnel; 1
had complained about sexual harassment since the employee had taken matters into his
own hands and had assaulted the alleged harasser. 2
However, an employer committed unlawful retaliation when it dismissed an employee
because she requested one of her employer's clients to provide a letter she needed that
was relevant to the investigation of her sex discrimination charge. 3
Observation: The difference between Jefferies 4 and Kallir 5
(both discussed
above) is that the employee in the former case exceeded her authority to obtain
information while the employee in the latter case did not. Similarly, it was unlawful
retaliation for an employer to discharge an employee who sent a letter to the employer's
major customer, protesting the presentation of an affirmative action award to the
employer, because even though it threatened to disrupt relations between the employer
and the customer, the letter did not disrupt the workplace and had no effect on the
employee's job performance. 6
Also, a black nurse, who after several meetings with her employer went public with
complaints about the employer's alleged mistreatment of black patients, did not impede
the employer's legitimate goals and was entitled to Title VII's protection against
retaliation. 7
Footnotes
Footnote 91. Gonzalez v Bolger (1980, DC Dist Col) 486 F Supp 595, 22 BNA FEP Cas
221, 22 CCH EPD 30731, affd without op 211 App DC 310, 656 F2d 899, 26 BNA
FEP Cas 1752, 25 CCH EPD 31794.
Footnote 92. Rosser v Laborers' International Union (1980, CA5) 616 F2d 221, 22 BNA
Footnote 93. Blizard v Fielding (1978, DC Mass) 454 F Supp 318, 17 BNA FEP Cas
EPD 30043; Johnson v Fulton Sylphon Div., Robertshaw Controls Co. (1977, ED
Tenn) 439 F Supp 658, 19 BNA FEP Cas 384.
Footnote 94. Jennings v Tinley Park Community Consol. School Dist. (1986, CA7) 796
Footnote 95. Jones v Flagship International (1986, CA5) 793 F2d 714, 41 BNA FEP Cas
358, 27 BNA WH Cas 1153, 40 CCH EPD 36392, cert den 479 US 1065, 93 L Ed 2d
Footnote 96. Pendleton v Rumsfeld (1980) 202 App DC 102, 628 F2d 102, 22 BNA FEP
Cas 733, 22 CCH EPD 30795.
Footnote 97. Hochstadt v Worcester Foundation for Experimental Biology (1976, Ca1)
Footnote 98. Jefferies v Harris County Community Action Asso. (1980, CA5) 615 F2d
Footnote 99. King v Illinois Bell Tel. Co. (1978, ND Ill) 476 F Supp 495, 21 BNA FEP
Cas 501.
Footnote 1. Garrett v Mobil Oil Corp. (1976, CA8) 531 F2d 892, 12 BNA FEP Cas 397,
Footnote 2. Morgan v Massachusetts General Hospital (1989, DC Mass) 712 F Supp 242,
53 BNA FEP Cas 1647, 51 CCH EPD 39220, affd, in part, vacated, in part (CA1 Mass)
901 F2d 186, 53 BNA FEP Cas 1780, 134 BNA LRRM 2172, 53 CCH EPD 39860, 30
Fed Rules Evid Serv 205, 16 FR Serv 3d 813.
Footnote 3. EEOC v Kallir, Philips, Ross, Inc. (1975, SD NY) 401 F Supp 66, 11 BNA
Footnote 5. EEOC v Kallir, Philips, Ross, Inc. (1975, SD NY) 401 F Supp 66, 11 BNA
Footnote 6. EEOC v Crown Zellerbach Corp. (1983, CA9) 720 F2d 1008, 32 BNA FEP
Cas 809, 32 CCH EPD 33752.
Footnote 7. Wrighten v Metropolitan Hospitals, Inc. (1984, CA9) 726 F2d 1346, 33 BNA
FEP Cas 1714, 33 CCH EPD 34137.
2. Retaliation for Acts in Opposition to Unlawful Employment Practices [237-239]
237 Acts unrelated to a discrimination proceeding

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Actions taken to oppose practices made unlawful by Title VII are protected by the statute
even if they are not related to an administrative or judicial proceeding. 8 Which
oppositional acts are protected are determined by the facts of each case and other
requirements of the "opposition clause." For instance, an employee's refusal to work a
night shift, because she wanted to avoid a coworker whom she had accused of sexually
harassing her, fell within the ambit of the "oppositional clause," 9 although self-help by
refusing to do a legitimate, albeit unpalatable, assignment was not protected by the
opposition clause. 10
Observation: The distinction between Porta 11 and Smith 12
was that the

assignment in Smith would not have potentially harmed the employee, while
encountering sexual harassment on a night shift would have in Porta. Absent such
immediate adversity, which an employee would be justified to avoid, refusal to do a
proper assignment will not support an oppositional retaliation claim. For a discussion
of the circumstances when an employer may impose discipline for oppositional acts,
see 236, and for a discussion of the other requirements in oppositional retaliation
claims see 238 and 239.
Other oppositional acts unrelated to a Title VII proceeding also constituted unlawful
retaliation when an employer acted against an employee who:
circulated a petition protesting the employer's alleged racial discrimination, and
participated in organizing black employees; 13
wrote a letter to her immediate supervisor's superiors contending that she was denied a
promotion because of her sex; 14
participated in boycotts and picketing against his employer to protest the employer's
discriminatory practices against blacks in hiring and promotions; 15
protested that he was the object of co-workers' racial insults. 16
Observation: Unlike Title VII's "opposition clause," the statute's "participation

clause" requires the adverse action being challenged to be related in some respect to an
administrative or judicial proceeding. 17
237 ----Acts unrelated to a discrimination proceeding [SUPPLEMENT]
Case authorities:
Evidence was sufficient to support terminated employee's 42 USCS 1983 claim
alleging that housing authority fired her because of her testimony against Housing
Authority Commissioner, where letter from Housing Authority Director requested that
employee be transferred because of her testimony, and Commissioner refused at
Authority board meeting to consider reinstating employee because of her testimony.
Andrade v Jamestown Hous. Auth. (1996, CA1 RI) 82 F3d 1179.
Railroad employee failed to state cause of action under 1983, where employee alleged
that his supervisor and others continued to retaliate against him, in contravention of his
First Amendment rights, for letter written by employee to railroad president complaining
that his seniority rights had been ignored and that he had been publicly humiliated by
supervisor, but grievance process had restored his seniority rights, and employee's
dissatisfaction with grievance process did not turn private matter into matter of public
concern, notwithstanding First Amendment allegation. Shannon v MTA Metro-North
R.R. (1996, SD NY) 915 F Supp 591.
Employee's 1983 claim against city, alleging that city and supervisory employees
conspired to retaliate against him for exercising his First Amendment rights, is dismissed,
where employee relied on allegations of supervisory employees' misconduct as
constituting city's policy or custom, because (1) these employees were not policymaking
officials so their misconduct does not suggest officially endorsed policy, (2) complaint
does not allege that misconduct was widespread or persistent, or that policymaking
officials knew of it, and (3) complaint does not allege failure by policymakers properly to
train or supervise individual defendants. Moray v City of Yonkers (1996, SD NY) 924 F
Supp 8.
Civil rights claim of former police captain against county and police chief, alleging
retaliation for exercise of First Amendment rights, is denied summarily, where basis of
claim was his commentary relating to integrity of process for selecting top law
enforcement personnel and his posting on his office door court order affirming merit
system protection board's denial of county's claim that board lacked jurisdiction over
captain's claim, because speech at issue was primarily related to captain's personal
employment, and did not address matter of public concern. O'Connell v Montgomery
County (1996, DC Md) 923 F Supp 761.
County and county officials are entitled to summary dismissal of 1983 suit brought by
trash hauler, where hauler claims his franchise contract with county was terminated in
retaliation for his speaking out publicly on issues such as landfill user rates and practices
of county road and bridge department, because, as independent contractor, hauler cannot
claim that his First Amendment rights were violated, especially when franchise contract
was neither necessary condition for hauler to do business nor guarantee that he would
receive trash hauling business from cities of county. Umbehr v McClure (1993, DC Kan)
840 F Supp 837.
Former county employee stated 42 USCS 1983 claim that his discharge violated his
due process and First Amendment rights, where he alleged that county officials refused to
provide him with information upon which charges of graft were based, refused to provide
him with complaint procedures, and denied him a meaningful opportunity to refute
charges and to clear his name, and former employee also alleged that defendants' actions
were in retaliation for his testifying at hearings and meeting with labor union
representatives. Ortez v Washington County (1996, CA9 Or) 88 F3d 804, 96 CDOS
5069, 96 Daily Journal DAR 8191, 71 BNA FEP Cas 584, 68 CCH EPD 44170.
Footnotes
Footnote 8. Second CircuitEEOC v Kallir, Philips, Ross, Inc. (1975, SD NY) 401 F
Supp 66, 11 BNA FEP Cas 241, 10 CCH EPD 10366, affd without op (CA2) 559 F2d
Fourth CircuitSherrill v J. P. Stevens & Co. (1975, DC NC) 410 F Supp 770, 20 BNA
FEP Cas 1660, affd without op (CA4) 551 F2d 308, 20 BNA FEP Cas 1692, 13 CCH
EPD 11422.
EEOCEEOC Decision No. 71-1544 (1971), 3 BNA FEP Cas 765, CCH EEOC Dec
6229; EEOC Decision No. 71-1545 (1971), 3 BNA FEP Cas 761, CCH EEOC Dec
6261.
Footnote 9. Porta v Rollins Environmental Services, Inc. (1987, DC NJ) 654 F Supp
1275, affd without op (CA3) 845 F2d 1014.
Footnote 10. Smith v Texas Dept. of Water Resources (1987, CA5) 818 F2d 363, 43
BNA FEP Cas 1727, 43 CCH EPD 37177, cert den 484 US 1059, 98 L Ed 2d 977,
Footnote 11. Porta v Rollins Environmental Services, Inc. (1987, DC NJ) 654 F Supp
Footnote 12. Smith v Texas Dept. of Water Resources (1987, CA5) 818 F2d 363, 43
Footnote 13. EEOC Decision NO. 70-119 (1969), 10 BNA FEP Cas 811, CCH EEOC
Decisions 6068.
Footnote 14. Sias v City Demonstration Agency (1978, CA9) 588 F2d 692, 18 BNA FEP
Cas 981, 18 CCH EPD 8773; EEOC Decision No. 75-225 (1975), 21 BNA FEP Cas
1774, CCH EEOC Decisions 6491.
Footnote 15. Payne v McLemore's Wholesale & Retail Stores (1981, CA5) 654 F2d
1130, 26 BNA FEP Cas 1500, 26 CCH EPD 32097, reh den (CA5) 660 F2d 497 and
cert den 455 US 1000, 71 L Ed 2d 866, 102 S Ct 1630, 28 BNA FEP Cas 288, 28 CCH
EPD 32467.
Footnote 16. EEOC Decision No. YSF9-108 (1969) 1 BNA FEP Cas 922.
Footnote 17. 240.
238 Good-faith requirement

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When an employee is opposing practices made unlawful by Title VII outside of the
context of any administrative or judicial proceeding, such activity is only protected if the
employee has a good-faith or reasonable, even if mistaken, belief that there is a Title VII
violation against him, 18
or a third party. 19 For example, an employee who
complained to superiors about a dress code that allegedly discriminated against Sikh
Indians was not discharged in retaliation for his complaint, where the requirement was
consistent with an existing rule and with municipal health guidelines, did not have a
disparate impact on Indians or other minorities, and an independent reason for the
plaintiff's discharge was apparent. 20
An employee's actions taken in conformity with Title VII may demonstrate good faith,
even though his opposition to discrimination is unintentional. An employee is not
required to have actual knowledge or intent of a discriminatory policy to state a Title VII
claim of oppositional retaliation. For instance, an employer unlawfully retaliated against
an employee who referred a black applicant for employment, when the employer
interpreted the referral as an interference with its policy against hiring blacks, although
the employee had no knowledge of the policy. 21
238 ----Good-faith requirement [SUPPLEMENT]
Case authorities:
Claim concerning opposition clause of 42 USCS 2000e-3(a) requires that employee
have reasonable belief that practice employee is opposing violates Title VII. Wyatt v City
of Boston (1994, CA1 Mass) 35 F3d 13, 65 BNA FEP Cas 1441.
Protesting what employee believes in good faith to be discriminatory practice is protected
conduct for purposes of 42 USCS 2000e-3; thus, plaintiff need not prove merits of
underlying discrimination complaint, but only that he was acting under good faith,
reasonable belief that violation existed. Aman v Cort Furniture Rental Corp. (1996, CA3
NJ) 85 F3d 1074, 70 BNA FEP Cas 1614.
Footnotes
Footnote 18. First CircuitMonteiro v Poole Silver Co. (1980, CA1) 615 F2d 4, 22 BNA
Second CircuitManoharan v Columbia University College of Physicians & Surgeons
(1988, CA2) 842 F2d 590, 46 BNA FEP Cas 429, 46 CCH EPD 37866.
Third CircuitNovotny v Great American Federal Sav. & Loan Asso. (1982, WD Pa)
539 F Supp 437, 28 BNA FEP Cas 1796.
Fifth CircuitPayne v McLemore's Wholesale & Retail Stores (1981, CA5) 654 F2d
EPD 32467.
Sixth CircuitCroushorn v Board of Trustees (1980, MD Tenn) 518 F Supp 9, 30 BNA
FEP Cas 168.
Seventh CircuitBerg v La Crosse Cooler Co. (1980, CA7) 612 F2d 1041, 21 BNA FEP
Cas 1012, 21 CCH EPD 30542.
Eighth CircuitSisco v J. S. Alberici Constr. Co. (1981, CA8) 655 F2d 146, 26 BNA
Ninth CircuitSias v City Demonstration Agency (1978, CA9) 588 F2d 692, 18 BNA
Tenth CircuitLove v RE/MAX of America, Inc. (1984, CA10) 738 F2d 383, 35 BNA
Eleventh CircuitBigge v Albertsons, Inc. (1990, CA11) 1990 US App LEXIS 2131.
D.C. CircuitParker v Baltimore & O. R. Co. (1981) 209 App DC 215, 652 F2d 1012,
Footnote 19. Jenkins v Orkin Exterminating Co. (1986, ED Tex) 646 F Supp 1274, 42
BNA FEP Cas 152.
Footnote 20. Abel v Bonfanti (1985, SD NY) 625 F Supp 263, 42 BNA FEP Cas 132, 39
CCH EPD 35893.
Footnote 21. EEOC Decision NO. 71-345 (1970), 2 BNA FEP Cas 1083, CCH EEOC
Dec 6167; EEOC Decision No. 78-31 (1978), 19 BNA FEP Cas 910, CCH EEOC Dec
6574.
239 Actions opposed need not be unlawful

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Under Title VII, there is no requirement that the employer's conduct being opposed
actually be illegal in order for an employee to raise a valid retaliation claim under the act.
22 Furthermore, a claim of retaliatory discharge was stated although the practices
opposed were not unlawful under Title VII when the discharge occurred. The claimant's
good faith belief that the practices were unlawful was supported at the time by the rulings
of several courts, despite a later contrary opinion by the Supreme Court. 23
Similarly, the ADEA's antiretaliation provisions applied even where the underlying
termination claim was not valid because it preceded a change in the law. 24
Caution: The objective lawfulness of an employer's actions should not be confused

with the "oppositional clause" requirement that an employee must have a subjective
good faith belief in the unlawfulness of an employer's actions before he can
successfully raise a retaliation claim on those grounds. 25
239 ----Actions opposed need not be unlawful [SUPPLEMENT]
Case authorities:
In 42 USCS 2000e-3 retaliation case based on opposition to unlawful employment
practice, it is not necessary that employment practice actually be unlawful; protection is
accorded whenever opposition is based on reasonable belief that employer has engaged in
unlawful practice. Moyo v Gomez (1994, CA9 Cal) 94 CDOS 6045, 94 Daily Journal
DAR 11052, 65 BNA FEP Cas 821.
Footnotes
Footnote 22. Second CircuitManoharan v Columbia University College of Physicians
& Surgeons (1988, CA2) 842 F2d 590, 46 BNA FEP Cas 429, 46 CCH EPD 37866.
Fifth CircuitPayne v McLemore's Wholesale & Retail Stores (1981, CA5) 654 F2d
EPD 32467.
Eleventh CircuitBigge v Albertsons, Inc. (1990, CA11) 1990 US App LEXIS 2131.
D.C. CircuitGonzalez v Bolger (1980, DC Dist Col) 486 F Supp 595, 22 BNA FEP Cas
FEP Cas 1752, 25 CCH EPD 31794.
Footnote 23. Berg v La Crosse Cooler Co. (1980, CA7) 612 F2d 1041, 21 BNA FEP Cas
1012, 21 CCH EPD 30542.
Footnote 24. Wolf v J.I. Case Co. (1985, ED Wis) 617 F Supp 858, 38 BNA FEP Cas
1647, 39 CCH EPD 35845.
Footnote 25. 238.
3. Retaliation for Participating in Administrative Process [240-242]
240 What is participation

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Title VII's retaliation prohibition that involves making a charge, testifying, or assisting in
an investigation, proceeding, or hearing under the statute encompasses acts related to
either an administrative or judicial proceeding, 26 such as:
announcing an intention to file a charge; 27
cooperating with an investigation undertaken by a state deferral agency; 28
filing a charge, even if it is untimely; 29
submitting affidavits during an EEOC investigation; 30
acting as a witness in court; 31
refusing to participate in a proceeding in support of the employer. 32
However, actions unrelated to either an administrative or judicial proceeding under Title
VII are not protected by the statute's retaliation provision, even if discrimination issues
were raised in the proceeding. 33
240 ----What is participation [SUPPLEMENT]
Case authorities:
For purposes of Title VII retaliation claim, filing complaint with EEOC is protected
activity. Smart v Ball State Univ. (1996, CA7 Ind) 89 F3d 437, 71 BNA FEP Cas 495.
Footnotes
Footnote 26.
Annotation: Construction and application of 704(a) of Civil Rights Act of 1964 (42
USC 2000e-3(a)), making it unlawful employment practice to discriminate against
individual for participation in equal opportunity proceedings or activities, 11 ALR Fed
316.
Footnote 27. Gifford v Atchison, T. & S. F. R. Co.(1980, CD Cal) 549 F Supp 1; EEOC
Decision No. 71-2338 (1971), 3 BNA FEP Cas 1249, CCH EEOC Dec 6247.
Footnote 28. Smith v Columbus Metropolitan Housing Authority (1977, SD Ohio) 443 F
Supp 61, 10 Ohio Ops 3d 169, 17 BNA FEP Cas 315; Kralowec v Prince George's
County (1980, DC Md) 503 F Supp 985, 24 BNA FEP Cas 549, 25 CCH EPD 31785,
affd without op (CA4) 679 F2d 883, 29 BNA FEP Cas 1750, 28 CCH EPD 32671, cert
den 459 US 872, 74 L Ed 2d 132, 103 S Ct 159, 37 BNA FEP Cas 848, 36 CCH EPD
35213.
Footnote 29. EEOC Decision No. 77-29 (1978), 21 BNA FEP Cas 1790, CCH EEOC
Dec 6585.
Footnote 30. EEOC v United Asso. of Journeymen etc. (1970, SD Ohio) 311 F Supp 464,
Footnote 31. EEOC v International Union of Operating Engineers (1977, SD NY) 438 F
Footnote 32. Smith v Columbus Metropolitan Housing Authority (1977, SD Ohio) 443 F
Supp 61, 10 Ohio Ops 3d 169, 17 BNA FEP Cas 315; EEOC Decision No. 71-2312
(1971), 3 BNA FEP Cas 1246, CCH EEOC Dec 6248.
Footnote 33. Archuleta v Colorado Dept. of Inst., Div. of Youth Services (1991, CA10)
936 F2d 483, 56 BNA FEP Cas 317, 56 CCH EPD 40852; Richards v ATE
Management & Service Co. (1990, ND Ala) 54 BNA FEP Cas 401, affd without op
(CA11) 935 F2d 1295, 56 BNA FEP Cas 976.
241 Absence of good faith requirement

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When participation in a Title VII proceeding is the basis for a retaliation claim, the
claimant has not always been required to act in good faith. Thus, an employer commits
an unlawful employment practice by retaliating against an employee who filed a charge
against it, even when the charge lacks merit, 34 or is completely unfounded, 35 or is
apparently malicious. 36
Caution: Notwithstanding the authorities discussed above, a claimant should not

assume that frivolous or malicious claims can be made with total impunity. While Title
VII's antiretaliation provisions may prevent reprisal actions, they may not prevent other
types of civil or criminal actions based on such misconduct as defamatory statements
or false swearing. Also, Title VII permits a prevailing defendant to recover attorney's
fees 37 and the other costs 38 of defending any action that is frivolous.
However, some employee participatory activities were not found to be the basis for a
valid retaliation claim. For example, an employee who claimed that he was fired because
he refused to aid the employer in its investigation of an age discrimination claim was not
a victim of retaliation. The ADEA could not be construed to hold an employer liable for
retaliation against an employee for his failure to cooperate in an investigation. 39
Observation: This situation can be distinguished from that in which an employee

does not refuse to participate in an investigation, but simply does not do or say what
the employer wants him to do or say while participating. Adverse action by the
employer on that basis would not be excused.
Also, the filing of a Title VII complaint creates no right on the part of an employee to
miss work, fail to perform assigned work, or to leave work without notice. 40
Footnotes
Footnote 34. Second CircuitEEOC v Kallir, Phillips, Ross, Inc. (1975, SD NY) 401 F
Eighth CircuitHearth v Metropolitan Transit Com. (M.T.C.) (1977, DC Minn) 436 F
EEOCEEOC Decision No. 71-1115 (1971) 3 BNA FEP Cas 273, CCH EEOC Dec
6201.
Footnote 35. Bradington v International Business Machines Corp. (1973, DC Md) 360 F
Supp 845, 5 BNA FEP Cas 1123, 6 CCH EPD 8695, affd (CA4) 492 F2d 1240, 7 BNA
FEP Cas 666, 7 CCH EPD 9251; EEOC Decision No. 71-1545 (1971) 3 BNA FEP Cas
Footnote 36. Pettway v American Cast Iron Pipe Co. (1969, CA5) 411 F2d 998, 1 BNA
FEP Cas 752, 71 BNA LRRM 2347, 2 CCH EPD 10011, 60 CCH LC 9253.
Footnote 39. Merkel v Scovill, Inc. (1986, CA6) 787 F2d 174, 40 BNA FEP Cas 1383,
122 BNA LRRM 2399, 39 CCH EPD 36053, cert den 479 US 990, 93 L Ed 2d 587,
Footnote 40. Brown v Ralston Purina Co. (1977, CA6) 557 F2d 570, 15 BNA FEP Cas
362, 14 CCH EPD 7665.
242 Required employment relationship

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There can be no Title VII-type injury without an employment relationship between the
retaliator and the victim of retaliation. Thus, no statutory violation occurred where an
employer retaliated against another employer's employee for having opposed
discrimination against one of the retaliator's employees. 41
Observation: There must be at least a prospective or past employment relationship

between the parties to a retaliation claim, although the claimant does not need to be
employed by the employer at the time of the retaliation. The retaliation prohibition
does extend to applicants 42 as well as former employees. 43
Furthermore, the actions opposed must be attributable to the employer. Thus, an
employer could not be charged with unlawful retaliation for an employee's discharge,
where the basis for the discharge was the employee's opposition to a racially
discriminatory act by a co-worker, and not an action in violation of Title VII by the
employer. 44
Observation: If the co-worker had been acting as the employer's agent so that his
actions could be attributed to the employer, 45 the employee's oppositional actions
could have been viewed as directed toward the employer. Alternatively, the co-worker
himself could have been liable under Title VII as an agent of the employer. 46
Footnotes
Footnote 41. Hale v Marsh (1986, CA7) 808 F2d 616, 42 BNA FEP Cas 944, 42 CCH
EPD 36806.
Footnote 42. 244.
Footnote 43. 245.
Footnote 44. Silver v KCA, Inc. (1978, CA9) 586 F2d 138, 18 BNA FEP Cas 1199, 18
CCH EPD 8862, 49 ALR Fed 703.
Annotation: Employer's discharge of employee as unlawful employment practice in
violation of 704(a) of Civil Rights Act of 1964 (42 USCS 2000e- 3(a)) where basis
for discharge is employee's opposition to discriminatory conduct of co-worker, 49
ALR Fed 712.
Footnote 45. As to the imputation to an employer of the discriminatory conduct of a
supervisor, generally, see 56.
Footnote 46. 63.
4. Persons Protected From Retaliation [243-246]
243 Employees
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The class of employees protected from retaliation is not limited to persons who have
actually been victims of the defendant's discrimination. Therefore, Title VII's
antiretaliation provisions protect:
a man who protested discrimination against women; 47
a white person who protested discrimination against blacks; 48
an EEO counselor who performed his regular job duties, even though he did not
personally file a claim of discrimination. 49
Furthermore, Title VII protects workers against retaliation for the antidiscrimination
activities of others. For example, it was unlawful to discharge a black because of protests
by others against the employer's racially discriminatory employment policies. 50
The Civil Rights Act of 1866 (42 USCS 1981) forbids retaliatory actions against a
white employee for defending the rights of racial minorities. 51
243 ----Employees [SUPPLEMENT]
Case authorities:
Former female employee's Title VII claim that her employer failed to promote her
husband, who also worked for employer, in retaliation against plaintiff for her complaints
of sexual discrimination was dismissed, because plaintiff did not have standing to assert
such claim; for individual standing, plaintiff must show that she personally has suffered
some actual or threatened injury as result of defendant's allegedly unlawful conduct.
Miller v Aristech Chem. Corp. (1995, WD Pa) 67 BNA FEP Cas 216.
Footnotes
Footnote 47. Eichman v Indiana State University Board of Trustees (1979, CA7) 597 F2d
1104.
Dec 6264.
Footnote 49. Smith v Secretary of Navy (1981) 212 App DC 229, 659 F2d 1113, 24 BNA
FEP Cas 1638, 25 CCH EPD 31533.
Dec 6337.
Footnote 51. Patrick v Miller (1992, CA10) 953 F2d 1240, 58 CCH EPD 41256.
244 Applicants
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The retaliation prohibitions of Title VII protect applicants for employment as well as
employees. Thus, an employer committed illegal retaliation where it failed to continue to
process an application after discovering that the applicant had filed discrimination
charges against it 52 or against a predecessor employer. 53
Footnotes
Footnote 53. Barela v United Nuclear Corp. (1970, DC NM) 317 F Supp 1217, 2 BNA
CCH EPD 7857.
245 Former employees

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The provisions of the Age Discrimination in Employment Act (ADEA) and Title VII
against retaliation cover former employees in some circumstances. Former employees
can be retaliation victims under the ADEA, if the foundation for retaliation was laid
while the individuals were still employed. For example, employees who, as a condition
for participating in the employer's early retirement program, were forced to sign releases
that promised not to assist in the prosecution of ADEA claims and that imposed penalties
if they did so, were potential victims of retaliation. Despite the fact that they had already
retired when the penalties were imposed, they had been forced to sign the releases during
their employment. 54
Similarly, a former employee may bring a Title VII retaliation claim against his former
employer based on a refusal to distribute benefits due under an employee benefit plan. 55
Also, Title VII protected a former employee who alleged that her employer had
fabricated allegations of criminal activity to force her to drop an EEOC charge. Since the
employer's conduct arose out of the employment relationship, it would have contravened
the basic purpose of Title VII to permit the employer to do to a former employee what it
could not do to a current employee. 56
Postemployment actions adversely affecting a former employee's ability to secure future

employment can also be covered by the antiretaliation provisions of Title VII and the
ADEA. Thus, an employer committed unlawful retaliation against a former employee
by:
providing a glowing letter of recommendation before discovering that a discrimination
charge was filed, then refusing to update the letter after discovering the charge; 57
informing a prospective employer that the employee had filed an EEOC charge against
the former employer; 58
informing a prospective employer during a telephone reference check that the former
employee had left because she felt she was discriminated against; 59
refusing to issue a letter of recommendation out of fear of further legal action, based on
previously filed sex discrimination charges; 60
cancelling a symposium in the former employee's honor, thereby intentionally
humiliating him and harming his employment prospects; 61
However, an employer did not retaliate against a former employee by providing an
honest and fact-based employment reference at the former employee's request. 62
245 ----Former employees [SUPPLEMENT]
Practice Aids: Parting is such sweet sorrow: The application of Title VII to
post-employment retaliation, 62 Fordham LR 205 (1993).
Insulating sexual harassment grievance procedures from the chilling effect of defamation
litigation, 69 Wash LR 235 (1994).
Case authorities:
Retaliation provisions of Title VII do not apply to former employees. Jensvold v Shalala
(1996, DC Md) 925 F Supp 1109, 70 BNA FEP Cas 788.
Footnotes
Footnote 54. EEOC v United States Steel Corp. (1987, WD Pa) 671 F Supp 351, 9 EBC
Footnote 55. EEOC v J.M. Huber Corp. (1991, CA5) 927 F2d 1322, 55 BNA FEP Cas
902, 56 CCH EPD 40715.
Footnote 56. Atkinson v Oliver T. Carr Co. (1986, DC Dist Col) 40 BNA FEP Cas 1041.
Footnote 57. Rutherford v American Bank of Commerce (1977, CA10) 565 F2d 1162, 16
BNA FEP Cas 26, 15 CCH EPD 7945; Czarnowski v Desoto, Inc. (1981, ND Ill) 518 F
Footnote 58. Seventh CircuitCzarnowski v Desoto, Inc. (1981, ND Ill) 518 F Supp
1252, 26 BNA FEP Cas 962, 28 CCH EPD 32504;
Eighth CircuitCaudill v Farmland Industries, Inc. (1990, CA8) 919 F2d 83, 54 BNA
FEP Cas 560, 5 BNA IER Cas 1639, 55 CCH EPD 40372.
Tenth CircuitRutherford v American Bank of Commerce (1977, CA10) 565 F2d 1162,
Footnote 59. Curl v Reavis (1983, WD NC) 35 BNA FEP Cas 917, 32 CCH EPD
33672, affd in part and revd in part on other grounds (CA4) 740 F2d 1323, 35 BNA FEP
Cas 930, 34 CCH EPD 34567.
Footnote 60. Sparrow v Piedmonth Health Systems Agency, Inc. (CA4) No. 84- 2118,
12/11/85 (unpublished).
Footnote 61. Passer v American Chemical Soc. (1991) 290 US App DC 156, 935 F2d
Footnote 62. Bailey v USX Corp. (1987, ND Ala) 658 F Supp 279, 43 BNA FEP Cas
EPD 38271.
246 Union members

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Unions have also been responsible for violating Title VII's retaliation prohibitions
because of adverse actions taken against members because they opposed the union's
allegedly discriminatory actions. However, a union member's opposition consisting of an
attempt to defeat a union officer in his bid for reelection to union office was not protected
by Title VII. Her opposition had placed her loyalty into question, and made her
ineffective in her job. 63
In addition, a union was found jointly liable with an employer for unlawful retaliation
when those entities agreed to a provision in a collective bargaining agreement that would
terminate the processing of a grievance claiming age discrimination, if and when the
grievant also filed ADEA charges. 64
Union members can also be victims of retaliation by employers. For example, an
employer may have violated 1981 by deliberately obstructing a member's access to a
contractual grievance procedure because of his race. 65
Footnotes
Footnote 64. EEOC v Board of Governors (1987, ND Ill) 665 F Supp 630, 44 BNA FEP
Cas 724, 45 CCH EPD 37709.
Footnote 65. Doffoney v Board of Trustees for Beaumont Independent School Dist.
(1989, ED Tex) 731 F Supp 781, 54 BNA FEP Cas 1298, 54 CCH EPD 40077, affd
without op (CA5) 945 F2d 400, 57 BNA FEP Cas 688.
5. Types of Retaliatory Acts [247-250]
247 Withholding wages

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It can be unlawful retaliation for an employer to withhold wages from an employee for
time lost from work to participate in a Title VII proceeding where the employer did pay
supervisors testifying on its behalf 66 or where it provided paid court leave only to
employees who testified on its behalf, but not to those who testified against it. 67
However, an employer did not retaliate by refusing to grant an employee leave with pay
for the time required to pursue her unsuccessful Title VII litigation against the employer.
Under those conditions, the employer was not required, in effect, to pay the litigation
costs of an unsuccessful plaintiff, since only successful plaintiffs are entitled to recover
such costs under Title VII. 68
Recommendation: In order to avoid retaliation claims for not paying employees

during the time they participate in discrimination proceedings an employer should have
a uniform pay and leave policy which addresses such situations, and apply it equally to
all employees.
Caution: Federal or state law may require time off with or without pay in some
circumstances, including participation as a juror or witness.
Footnotes
Footnote 66. Kyriazi v Western Electric Co. (1979, DC NJ) 469 F Supp 672, 26 BNA
Footnote 67. Stup v Bolger (1984, ED Va) 578 F Supp 1394, 36 CCH EPD 35011.
Footnote 68. Burrows v Chemed Corp. (1984, CA8) 743 F2d 612, 35 BNA FEP Cas
1410, 35 CCH EPD 34631.
248 Other adverse employment actions

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Go to Supplement
The types of employer actions that may constitute retaliation involve the complete range
of terms and conditions of employment, including discharge. 69 Unlawful retaliation
has included:
taking away an employee's staff and virtually all job functions; 70
denying an employee's promotion as a means of bargaining to obtain the withdrawal of
a Title VII action; 71
involuntarily transferring an employee to a lateral position with different job
responsibilities and conditions of employment, even without a reduction in salary or
benefits; 72
assigning an employee to duties which deprived her of overtime opportunities; 73
more severely disciplining employees who protested racial bias than those who
protested other matters; 74
ostracizing employees who formed and participated in an association which fought for
equal employment opportunity, giving them the "silent treatment," and selectively
enforcing work rules against them; 75
keeping special adverse records about an employee and failing to maintain
complimentary records, contrary to regular practice; 76
changing vacation policy to reduce an employee's benefits; 77
harassing an employee by subjecting him to a hostile work environment characterized
by confrontation, criticism, and derogatory remarks. 78
However, an employer's documentation of its communications with an employee after
she filed her charge, including those from persons lacking authority to take any adverse
action against the employee, was not an adverse employment action for retaliation
purposes. 79
248 ----Other adverse employment actions [SUPPLEMENT]
Case authorities:
Constructive discharge, like any other discharge, is adverse employment action that will
support action for unlawful retaliation. West v Marion Merrell Dow, Inc. (1995, CA8
Mo) 54 F3d 493, 67 BNA FEP Cas 1209, 66 CCH EPD 43541, reh, en banc, den, reh
den (1995, CA8 Mo) 1995 US App LEXIS 15809.
Former employer's opposition to Title VII plaintiff's claim for unemployment
compensation benefits was not retaliatory in nature, since plaintiff had initiated
unemployment benefits process and employer had participated as required by state law.
Baker v Summit Unlimited (1994, ND Ga) 855 F Supp 375, 65 BNA FEP Cas 176.
Footnotes
Footnote 69. Rucker v Higher Educational Aids Bd. (1982, CA7) 669 F2d 1179, 27 BNA
FEP Cas 1553, 28 CCH EPD 32422.
Footnote 70. Stinson v Tennessee Dept. of Mental Health & Mental Retardation (1982,
MD Tenn) 553 F Supp 454, 30 CCH EPD 33313, remanded without op (CA6) 732 F2d
Footnote 71. Kirkland v Buffalo Bd. of Education (1979, WD NY) 487 F Supp 760, 23
1547, 22 CCH EPD 30818.
Footnote 72. Collins v Illinois (1987, CA7) 830 F2d 692, 44 BNA FEP Cas 1549, 44
CCH EPD 37432.
Dec 6275.
Footnote 74. Mosley v General Motors Corp. (1980, ED Mo) 497 F Supp 583, 23 BNA
FEP Cas 1637, affd (CA8) 691 F2d 504, 35 BNA FEP Cas 1892.
Footnote 75. Sanchez v Santa Ana (1991, CA9) 57 CCH EPD 40984, cert den (US)
116 L Ed 2d 41, 112 S Ct 66, 57 CCH EPD 40986.
Footnote 76. EEOC Decision No. 71-382 (1970), CCH EEOC Dec 6202, 3 BNA FEP
Cas 230.
Footnote 77. Grove v Frostburg Nat. Bank (1982, DC Md) 549 F Supp 922, 31 BNA FEP
Cas 1675, 26 BNA WH Cas 316, 31 CCH EPD 33606, 96 CCH LC 34327.
Footnote 78. Drez v E.R. Squibb & Sons, Inc. (1987, DC Kan) 674 F Supp 1432, 46 CCH
EPD 38005.
Footnote 79. Young v Mariner Corp. (1991, ND Ala) 56 CCH EPD 40814.
249 Handling discrimination claims
View Entire Section

Reasonable steps may be taken by an employer to meet its legitimate needs in handling a
claim of discrimination under Title VII. Therefore, it was not unlawful retaliation for an
employer to:
have its counsel send a letter to a discrimination plaintiff requesting him to
communicate with the company through counsel; 80
require an attorney who was a discrimination plaintiff to move into a suite of offices
away from other attorney employees, who were defending the employer in her Title VII
suit; 81
question an employee for the purpose of investigating his discrimination complaints
against fellow workers; 82
postpone a decision on rehiring a discrimination plaintiff until after her trial concluded,
because it had a good faith belief that the imminent trial made any discussion of her
re-employment improper. 83
Observation: In the latter case the court drew a fine line between an unlawful
response to the filing of a job discrimination action and a lawful response made in the
context of trial strategy. The decision does not mean that an employer's mere
postponement of, as opposed to its refusal to make, an employment decision with
respect to a person who has undertaken protected opposition to discrimination is
always a legitimate action that avoids liability for retaliation.
On the other hand, employer actions related to handling a Title VII claim that place an
unreasonable burden and complaining employee can constitute unlawful retaliation. For
example, an employer committed retaliation where it:
singled out a Title VII claimant to be constantly watched, in order to build and
document a case against her for the sole purpose of defending against the EEOC
complaint, and also limited her break privileges and use of the telephone and copying
machine; 84
systematically attempted to "build a case" against the employee in order to justify an
anticipated termination by having subordinate employees watch and note the employee's
behavior and keeping time records on the employee that were not kept on others. 85
Observation: Employers should not be deterred by Francis 86 and McIntosh 87

from maintaining normal, routine, and customary disciplinary records or pursuing
regular disciplinary procedures concerning employees who have filed discrimination
charges. It is the unusual and extraordinary measures that focus on a single employee
that are to be avoided.
An employer's interference with an ongoing EEOC investigation may also constitute
unlawful retaliation. Thus, an employer unlawfully retaliated when it told employees
who had been contacted by an EEOC investigator that they did not have to talk to anyone
they did not know, it would be better if they were interviewed through the personnel
department and in the presence of the employer's attorney and that they could give the
employer a statement of questions and answers made during the EEOC investigation. 88
Footnotes
Footnote 80. Stebbins v Insurance Co. of N. America (1970, DC Dist Col) 3 BNA FEP
Cas 522, 3 CCH EPD 8197, revd on other grounds 156 App DC 326, 481 F2d 501, 5
BNA FEP Cas 1357, 5 CCH EPD 8645, 29 ALR Fed 748.
Footnote 81. Blizard v Frechette (1979, CA1) 601 F2d 1217, 20 BNA FEP Cas 102, 20
CCH EPD 30043.
Footnote 82. Nicholson v Western Electric Co. (1982, MD NC) 555 F Supp 3, 40 BNA
Footnote 83. Davis v Lambert of Arkansas, Inc. (1986, CA8) 781 F2d 658, 39 BNA FEP
Cas 1410, 39 CCH EPD 35866.
Footnote 84. Francis v American Tel. & Tel. Co., Long Lines Dept. (1972, DC Dist Col)
55 FRD 202, 4 BNA FEP Cas 777, 4 CCH EPD 7811.
Footnote 85. McIntosh v Jones Truck Lines, Inc. (1984, ED Ark) 38 BNA FEP Cas 704,
affd in part and vacated in part on other grounds (CA8) 767 F2d 433, 38 BNA FEP Cas
710.
Footnote 86. Francis v American Tel. & Tel. Co., Long Lines Dept. (1972, DC Dist Col)
55 FRD 202, 4 BNA FEP Cas 777, 4 CCH EPD 7811.
710.
Footnote 88. EEOC Decision No. 74-121 (1974), 8 BNA FEP Cas 703, CCH EEOC Dec
6435.
250 Suits against complaining persons

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An employer's initiation of a defamation suit or counterclaim against the employee, if
done in retaliation for protected acts, is prohibited by Title VII. 89
An employer's filing of a defamation suit against an employee in retaliation for protected
acts is also prohibited by the ADEA. 90

However, suits which are initiated in a state court in good faith and in an attempt to
rehabilitate the employer's reputation do not violate Title VII, if they are not filed with a
retaliatory motive. 91
Even an employer with a retaliatory motive in filing suit may not be prevented from
pursuing a reasonable claim. In a case not involving a discrimination claim, the Supreme
Court has ruled that the NLRB may only enjoin a baseless employer lawsuit as an unfair
labor practice. The employer's right to litigate its libel action was protected under the
First Amendment, despite its potential retaliatory motive, if the action had a reasonable
basis in law and fact. 92
Observation: This case, by analogy, gives employers a right to sue an employee

complaining of discrimination for otherwise prohibited retaliatory reasons, as long as
the suit is not frivolous, but it does not necessarily immunize an employer from the
consequences of filing suit with a retaliatory motive. The Supreme Court continues to
recognize that it is unlawful to prosecute a baseless lawsuit with the intent of
retaliating against an employee for the exercise of rights protected by the NLRA, and it
is likely to do the same when the case involves Title VII or other discrimination
statutes.
250 ----Suits against complaining persons [SUPPLEMENT]
Case authorities:
Civil rights claim of former administrator of county nursing home against county and
county officials, alleging wrongful termination in retaliation for exercising his First
Amendment rights, is not denied summarily, where plaintiff's speech at issue was his
communication relating to officials' failure to act on proposal that would have saved
county $500,000 per year, because (1) communication concerned matter of public
concern, namely saving taxpayers' money and revealing waste, and communication was
made to person who requested information and could resolve matter and was made in
such way as to not disrupt county government, and (2) importance of speech outweighed
government's interest in preventing it. Mraz v County of Lehigh (1994, ED Pa) 862 F
Footnotes
Footnote 89. EEOC v Virginia Carolina Veneer Corp. (1980, WD Va) 495 F Supp 775,
27 BNA FEP Cas 340, 24 CCH EPD 31191, app dismd (CA4) 652 F2d 380, 30 BNA
FEP Cas 1049, 26 CCH EPD 31908; EEOC Decision No. 74-77 (1974), 8 BNA FEP
Cas 558, CCH EEOC Dec 6417.
Footnote 90. Buzogany v Roller Bearing Co. (1988, DC NJ) 47 BNA FEP Cas 1485.
Footnote 91. EEOC v Levi Strauss & Co. (1981, ND Ill) 515 F Supp 640, 27 BNA FEP
Cas 346, 27 CCH EPD 32392.
Footnote 92. Bill Johnson's Restaurants, Inc. v NLRB (1983) 461 US 731, 76 L Ed 2d
277, 103 S Ct 2161, 113 BNA LRRM 2647, 97 CCH LC 10130.
6. Proof of Retaliation [251-260]
251 Establishing a prima facie case of retaliation

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In order to prove a prima facie case of retaliation prohibited by Title VII 93 or the Age
Discrimination in Employment Act (ADEA), 94 the worker must establish that (1) he
engaged in opposition to practices made unlawful by those statutes 95 or that he
participated in a proceeding, 96 (2) his activity was protected, 97 (3) he was subjected
to adverse treatment by the employer or labor union, 98 and (4) there was a casual
connection between his opposition or participation and the adverse treatment. 99
A prima facie case of retaliation against a class of plaintiffs may be established by
showing that the employer took adverse action against the class on the basis of a general
practice or policy. 1
251 ----Establishing a prima facie case of retaliation [SUPPLEMENT]
Case authorities:
In Title VII cases dealing with retaliatory discharge, where plaintiff can rarely present
direct, subjective evidence of employer's actual motive, plaintiff cannot survive summary
judgment with unsupported allegations and speculations, but rather must point to specific
facts detailed in affidavits and depositions (i.e. names, dates, incidents, and supporting
testimony) giving rise to inference of discriminatory animus. Hoeppner v Crotched
Mountain Rehabilitation Ctr. (1994, CA1 NH) 31 F3d 9, 65 BNA FEP Cas 841.
Requirements of prima facie case for retaliation are same irrespective of whether claim is
based on participation clause or opposition clause of statute. Wyatt v City of Boston
(1994, CA1 Mass) 35 F3d 13, 65 BNA FEP Cas 1441.
In retaliatory discharge case, plaintiff cannot overcome summary judgment hurdle with
unsupported allegations and speculations; rather, plaintiff must point to specific facts
giving rise to inference of discriminatory animus. Dinsmore v University of Maine Sys.
(1994, DC Me) 66 BNA FEP Cas 852.
Title VII plaintiff, who claimed that retaliation followed his comments protesting his
discriminatory rating, failed to make prima facie case, because such speech is not
protected, as it is of private and not public concern. Cruz v New York State Deputy
Attorney Gen. for Medicaid Fraud (1995, SD NY) 67 BNA FEP Cas 1506.
Police officer's discriminatory retaliation claim under 1983 against chief inspector and
officers assigned to plaintiff's precinct is not denied summarily, where (1) basis of claim
was fact that plaintiff had complained to equal employment opportunity office of sex
discrimination to which she and other women in precinct had been subjected, (2)
complaint alleged that defendants knew of complaint and took retaliatory actions against
her, and (3) actions occurred within 2 months of her complaint, because plaintiff
established prima facie case which defendants failed to rebut. Domenech v City of New
York (1996, SD NY) 919 F Supp 702.
Summary judgment was precluded in 42 USCS 1983 retaliatory discharge claim by
terminated employee alleging that his First Amendment rights were violated, where
factual issue remained as to whether his termination was in response to complaints about
mismanagement in his department. Gray v Laws (1995, CA4 NC) 51 F3d 426.
Police officer proved prima facie claim of retaliatory discrimination in violation of
1983, where officer demonstrated that city refused to transfer him in retaliation for filing
complaints with EEOC and officer proved by preponderance of evidence that city's
reasons for failure to transfer were pretextually applied to mask illegal animus, because
1983 violation is established once it is shown that defendant acted under color of state
law in denying person's constitutional rights and filing EEOC complaint constitutes
protected activity. McClam v City of Norfolk Police Dep't (1995, ED Va) 877 F Supp
277.
Retaliation claim of nursing home nurse's aide under 42 USCS 1981 is dismissed,
where aide alleges that supervisory personnel retaliated against her for speaking out on
behalf of African Nationals, because complaint does not allege retaliation for attempting
to enforce rights guaranteed to her by contract. Wixson v Dowagiac Nursing Home
(1994, WD Mich) 866 F Supp 1047.
Former employee's allegation that she was requested, within six weeks of filing her
EEOC complaint, to perform job of known repugnance to her and for which refusal to
perform would lead to her termination, is sufficient to establish causal link necessary for
formation of prima facie case of retaliatory discharge. Mack v County of Cook (1993,
Even assuming that black school employee presented prima facie case of racial
discrimination and retaliation in employment based upon district's decision to send
another employee to seminar instead of him, school district presented legitimate,
nondiscriminatory reasons for adverse employment action, that employee was not most
qualified person to attend seminar, that he harassed coworker, and that he submitted
false mileage reimbursement reports. Ruby v Springfield R-12 Pub. Sch. Dist. (1996,
CA8 Mo) 76 F3d 909, 70 BNA FEP Cas 199, 67 CCH EPD 43941, reh den (1996, CA8
Mo) 1996 US App LEXIS 5145.
In order to establish prima facie case of retaliation, ADEA plaintiff must show that she
engaged in conduct protected by ADEA, that she was subjected to adverse employment
action at time of, or after, protected conduct occurred, and that causal link exists between
protected activity and adverse employment action. Adams v West Pub. Co. (1993, DC
Minn) 812 F Supp 925, 61 BNA FEP Cas 233.
Evidence was insufficient to support jury verdict for employee in 42 USCS 1983
action alleging that employee was retaliated against for assisting black person in her
employment rights, where evidence showed that employee's supervisors were angry and
embarrassed because employee publicly exposed irregularity in hiring process, but
evidence did not show racial animus on part of supervisors. Maynard v City of San Jose
(1994, CA9 Cal) 37 F3d 1396, 94 CDOS 7824, 94 Daily Journal DAR 14447, 66 BNA
FEP Cas 123, amd (1994, CA9 Cal) 94 CDOS 8837, 94 Daily Journal DAR 16401.
Plaintiff claiming retaliation does not need to prove that employment practice at issue
was in fact unlawful under Title VII. Trent v Valley Elec. Ass'n (1994, CA9 Nev) 41 F3d
524, 94 CDOS 9102, 94 Daily Journal DAR 16924, 66 BNA FEP Cas 769, 65 CCH EPD
P 43388.
In order to establish requisite causal link required as part of prima facie case, plaintiff
need only establish that protected activity and adverse employment action were not
wholly unrelated. Goldsmith v City of Atmore (1993, CA11 Ala) 996 F2d 1155, 7 FLW
Fed C 624, 62 BNA FEP Cas 769.
To recover for retaliation, plaintiff need not prove underlying claim of discrimination
which led to her protest, so long as she had reasonable good faith belief that
discrimination existed. Meeks v Computer Assocs. Int'l (1994, CA11 Fla) 15 F3d 1013,
64 BNA FEP Cas 258, 1 BNA WH Cas 2d 1544, 63 CCH EPD 42883, 127 CCH LC
33065, 7 FLW Fed C 1275.
To establish prima facie case of retaliation, ADEA plaintiff must show, by preponderance
of evidence, statutorily protected expression, adverse employment action, and causal link
between protected expression and adverse employment action. Brook v City of
Montgomery (1996, MD Ala) 916 F Supp 1193.
To establish prima facie case of retaliation, ADEA plaintiff must show, by preponderance
of evidence, statutorily protected expression, adverse employment action, and causal link
between protected expression and adverse employment action. Brook v City of
Montgomery (1996, MD Ala) 916 F Supp 1193.
In determining whether in-house attorney has retaliatory-discharge claim against
employer, court must first ask whether attorney was discharged for following mandatory
ethical obligation prescribed by professional rule or statute. If in-house counsel is asked
to commit crime or to engage in act of moral turpitude that would subject him or her to
disbarment and is discharged for refusing, under most circumstances, attorney would
have retaliatory-discharge cause of action against employer. If, on other hand, conduct in
which attorney has engaged is merely ethically permissible, but not required by statute or
ethical code, court must resolve two questions: whether employer's conduct is of kind
that would give rise to retaliatory-discharge action by nonattorney employee; and
whether some statute or ethical rule specifically permits attorney to depart from usual
requirement of confidentiality with respect to client-employer and engage in nonfiduciary
conduct for which he or she was terminated. General Dynamics Corp. v Superior Court
(1994) 7 Cal 4th 1164, 32 Cal Rptr 2d 1, 876 P2d 487, 94 CDOS 5501, 94 Daily Journal
DAR 10068, 9 BNA IER Cas 1089, 128 CCH LC 57741.
Terminated employee failed to establish prima facie case of retaliation under 42 USCS
1981, where no evidence connected her prior EEOC claim to her termination, or showed
that supervisors were aware of prior EEOC claim. Barge v Anheuser-Busch, Inc. (1996,
CA8 Mo) 87 F3d 256, 68 CCH EPD 44144, reh den (1996, CA8 Ark) 1996 US App
LEXIS 19867.
Footnotes
Footnote 93. Second CircuitEEOC v International Union of Operating Engineers
(1977, SD NY) 438 F Supp 876, 16 BNA FEP Cas 325, 15 CCH EPD 7915.
Third CircuitOshiver v Court of Common Pleas (1979, ED Pa) 469 F Supp 645, 20
Fifth CircuitWhatley v Metropolitan Atlanta Rapid Transit Authority (1980, CA5) 632
Eighth CircuitMosley v General Motors Corp. (1980, ED Mo) 497 F Supp 583, 23
BNA FEP Cas 1637, affd without op, remanded without op (CA8) 691 F2d 504, 35 BNA
FEP Cas 1892.
Ninth CircuitGunther v County of Washington (1979, CA9) 623 F2d 1303, 20 BNA
FEP Cas 792, 22 BNA FEP Cas 1650, 20 CCH EPD 30204, 23 CCH EPD 30900, affd
452 US 161, 68 L Ed 2d 751, 101 S Ct 2242, 25 BNA FEP Cas 1521, 26 CCH EPD
31877.
DC CircuitGonzalez v Bolger (1980, DC Dist Col) 486 F Supp 595, 22 BNA FEP Cas
FEP Cas 1752, 25 CCH EPD 31794.
EEOCEEOC Decision No. 78-22 (1978), 19 BNA FEP Cas 901, CCH EEOC Dec
6584.
Footnote 94. Kristufek v Hussmann Foodservice Co. (1989, ND Ill) 1989 US Dist LEXIS
952.
Footnote 95. 237-239.
Footnote 98. 253.
Footnote 99. 254.
Footnote 1. Hartman v Wick (1984, DC Dist Col) 600 F Supp 361, 36 BNA FEP Cas
622, 35 CCH EPD 34876.
252 Proof of underlying discrimination claim or activity
View Entire Section

A retaliation plaintiff must show that he engaged in either oppositional or participatory
actions. 2 However, to establish a prima facie case or retaliation, a plaintiff is not
required to prove the validity of either the underlying discrimination claim or the
employer's alleged unlawful activities under Title VII, 3 or under 42 USCS 1981. 4
Footnotes
Footnote 2. 234.
Footnote 3. Sias v City Demonstration Agency (1978, CA9) 588 F2d 692, 18 BNA FEP
Cas 981, 18 CCH EPD 8773; Sutton v National Distillers Products Co. (1978, SD
Ohio) 445 F Supp 1319, 16 BNA FEP Cas 1031, 16 CCH EPD 8165, affd (CA6) 628
Footnote 4. Choudhury v Polytechnic Institute of New York (1984, CA2) 735 F2d 38, 34
253 What are adverse actions

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An employee who has shown that he has engaged in activity protected by retaliation
prohibitions must also show that he was subjected to some adverse treatment by the
employer in order to establish a prima facie case of retaliation. For example, a former
employee suffered retaliation when her former employer failed to rehire her, although she
did not submit a new application, where the employee reasonably believed that it would
be futile to apply because the employer's supervisor told her that she would never again
work for the employer. 5
However, a claimant did not suffer an adverse action, and, therefore, was not a victim of
retaliation, where:
the employer's statement that "if we need you, we'll call you" was merely information
about standby status and the plaintiff misinterpreted it to mean that he was fired; 6
the employer was tolerant of a black employee's nonproduction and made every effort to
conform his assignments to his salary and abilities; 7
a former employee received a truthful mixed reference from his former employer; 8
the employee was paid severance and other benefits, computed as of the scheduled
discharge date, although the discharge occurred two weeks before that date and the
employee was deprived of the use of an office to communicate with prospective
employers; 9
the employer provided sick leave and a transfer to a lower graded position, with no
reduction in pay or benefits, so a former female employee would not have to work under
a harassing supervisor, and later requested that the employee sign a document stating that
she had requested the transfer before promoting her back to her former grade level. 10
Observation: The adverse action element in proving retaliation is similar to the

requirement that a plaintiff in a discrimination suit be an "aggrieved person." 11
253 ----What are adverse actions [SUPPLEMENT]
Case authorities:
Allegations by teacher that principal retaliated against her after she reported alleged
fraudulent misrepresentations regarding student achievements by changing her
assignment, reducing her preparation period, reassigning her classroom location,
removing her belongings from storage area, and sending negative evaluation letters
criticizing her work, stated 42 USCS 1983 retaliation claim under First Amendment.
Bernheim v Litt (1996, CA2 NY) 79 F3d 318, 67 CCH EPD 43989.
Summary judgment in favor of defendant employer in Title VII retaliatory discharge case
is generally improper where plaintiff can show that employee with discriminatory animus
provided factual information or other input that may have affected adverse employment
action. Dey v Colt Constr. & Dev. Co. (1994, CA7 Ill) 28 F3d 1446, 65 BNA FEP Cas
523, 2 BNA WH Cas 2d 341, reh, en banc, den (1994, CA7 Ill) 1994 US App LEXIS
23296.
Retaliatory actions generally alleged in complaint will be considered as part of public
works employee's harassment claim but not as separate claim of retaliation under 1983,
where employee claims biased and incomplete investigations of her complaints about
discrimination in terms and conditions of her employment, because there is no liability
under 1983 for retaliatory conduct which is itself actionable under Title VII (42 USCS
2000e et seq.). Houck v City of Prairie Village (1996, DC Kan) 912 F Supp 1438.
Footnotes
Footnote 5. Gifford v Atchison, T. & S. F. R. Co. (1982, CA9) 685 F2d 1149, 34 BNA
FEP Cas 240, 29 BNA FEP Cas 1345, 30 CCH EPD 33118.
Footnote 6. Evans v Davie Truckers, Inc. (1985, CA4) 769 F2d 1012, 38 BNA FEP Cas
1555, 37 CCH EPD 35472.
Footnote 7. Nesmith v Martin Marietta Aerospace (1987, MD Fla) 676 F Supp 1183, 46
37606.
Footnote 8. Bahu v Fuller O'Brien Paints (1986, ND Ind) 41 BNA FEP Cas 1231.
Footnote 9. Connell v Bank of Boston (1991, CA1) 924 F2d 1169, 54 BNA FEP Cas
Footnote 10. Yates v Avco Corp. (1987, CA6) 819 F2d 630, 43 BNA FEP Cas 1595, 43
CCH EPD 37086.
Footnote 11. As to who is an "aggrieved person" entitled to bring a discrimination suit,
see 2372.
254 Proof of causation

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Not every adverse action taken by an employer after a plaintiff asserts his or her rights
constitutes unlawful retaliation. The plaintiff must offer some proof that the employer's
adverse action was caused by the plaintiff's oppositional or participatory activity. 12
Observation: In proving retaliation, proof of causation goes to the underlying

reason, motive, or intent of the party inflicting the adverse action.
Observation: While proof of causation may be important to either establishing a

prima facie case 13 or showing that the employer's proffered motive for its conduct
was a pretext, 14 a plaintiff must introduce some evidence from which causation can
be inferred to make out a prima facie case.
Of course, if the adverse action occurred before the claimant began to assert his rights,
those acts cannot be the reason for, that is, they were not the cause of the adverse
treatment. 15 Also, an employee who overreacts to alleged discrimination by resigning
after only complaining once, and after being asked to withdraw the resignation, cannot
show the causation necessary to establish retaliation. 16
Evidence that the employer has discriminated on other bases under Title VII may be used
to show that an employer's actions caused retaliation against the complainant. For
example, a working atmosphere that condoned sexual harassment could increase the
likelihood of retaliation in individual cases. 17
254 ----Proof of causation [SUPPLEMENT]
Case authorities:
Causal connection required to establish prima facie case of retaliation may be

demonstrated by evidence of retaliatory motive, such as protected conduct followed
closely by adverse action. Washington v Court of Common Pleas (1994, ED Pa) 845 F
To establish prima facie case of retaliation, ADEA plaintiff must show that he engaged in
ADEA protected conduct, that he was thereafter subjected to adverse employment action,
and that causal connection existed between protected conduct and adverse action. Young
v State Farm Mut. Auto. Ins. Co. (1994, WD Tenn) 868 F Supp 937.
To establish prima facie case of retaliatory discharge in violation of ADEA, plaintiff
must show that he engaged in conduct protected under ADEA, that he was discharged at
time of, or after, protected conduct occurred, and that there was causal link between
protected activity and discharge. O'Bryan v KTIV Television (1994, ND Iowa) 868 F
Supp 1146.
To show causal link between protected activity and adverse employment decision, Title
VII plaintiff must show, by preponderance of evidence, that engaging in protected
activity was one of reasons for his firing and that but for such activity, plaintiff would not
have been fired. Quansah v IBM Corp. (1996, ND Cal) 70 BNA FEP Cas 1531.
In order to establish causal connection, for purposes of ADEA retaliation claim, plaintiff
must establish that protected opposition and adverse action are not wholly unrelated.
Garcia-Paz v Swift Textiles (1995, DC Kan) 873 F Supp 547, 8 ADD 172, 3 AD Cas
1844.
Terminated probationary employee who had filed charge with EEOC regarding sexual
harassment established prima facie causal link between her charge and termination with
evidence which showed that defendant had documented alleged work related
performance problems only after employee had filed her EEOC charge, and that
termination had occurred approximately two months after filing of charge. Strickland v
Hillsborough County (1994, MD Fla) 65 BNA FEP Cas 255.
Former employee, who alleged that he was fired from his job in retaliation for his wife's
filing of sex discrimination charge with EEOC, failed to make out prima facie case of
retaliation, because he offered no facts which created inference of causal connection
between his wife's filing of charge and his layoff. Thurman v Robertshaw Control Co.
(1994, ND Ga) 65 BNA FEP Cas 1652.
Ultimate determination in unlawful retaliation case is whether conduct protected by Title
VII was "but for" cause of adverse employment decision, so that even if plaintiff's
protected conduct was substantial element in defendant's decision to terminate employee,
no liability for unlawful retaliation arises if employee would have been terminated even
in absence of protected conduct; standard for establishing "causal link" element of
plaintiff's prima facie case is much less stringent, and plaintiff need not prove that her
protected activity was sole factor motivating employer's challenged decision in order to
establish such causal link. Long v Eastfield College (1996, CA5 Tex) 88 F3d 300, 71
BNA FEP Cas 750, reh den (1996, CA5 Tex) 1996 US App LEXIS 22021.
Footnotes
Footnote 12. Moore v Borg- Warner Corp. (ND Ill) No. 84C9768, 2/21/86.
Footnote 13. As to the establishment of a prima facie case, generally, see 251.
Footnote 14. As to pretextual motives, generally, see 260.
Footnote 15. Barnes v Learner Shops of Texas, Inc. (1971, SD Tex) 323 F Supp 617, 3
Footnote 16. Frost v Chromalloy Aerospace Technology Corp. (1988, DC Conn) 697 F
Supp 82, 52 BNA FEP Cas 1575, 29 BNA WH Cas 1313, 47 CCH EPD 38154, 109
CCH LC 35083.
Footnote 17. Hawkins v Hennepin Technical Center (1990, CA8) 900 F2d 153, 52 BNA
For a discussion of how to establish causation in retaliation cases, see 255-258.
255 What must the employer know about the employee's protected activity in
order to prove causation
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If an employer is unaware of an employee's protected participatory or oppositional
activities before taking an adverse action, those employee activities cannot be the cause
of the employer's actions toward the employee. Thus, to establish causation, a retaliation
claimant must normally show that the employer knew about his acts of opposition to
discrimination, or about his participation in a proceeding, before the employer took an
adverse action against him. 18
The "knowledge" element of causation in retaliation claims based on opposing unlawful
acts not only requires employers to be aware of the employee's opposition, but also
requires the employer to understand that the opposition pertains to alleged discrimination.
For example, an employee who complained about unequal pay failed to establish
causation in a retaliation claim based on oppositional acts because her objections only
communicated a desire for personal advancement. 19 Likewise, an employer did not
obtain the requisite knowledge to establish causation where an employee made only
generalized complaints of unfair treatment to the employer. 20 However, when
employees showed that adverse treatment began when they first complained about their
salaries, and continued until they were terminated several years later, the employer had
the requisite knowledge to establish causation in their retaliation claim. 21
An employer can be made aware of opposition to discrimination through the imputed
knowledge of supervisors. For instance, when an employee who provided information
adverse to the employer in an EEOC investigation of another employee's ADEA

complaint, supervisors could have learned of her testimony in a subsequent interview
with the EEOC investigator or in subsequent settlement negotiations with the ADEA
complainant, and their knowledge could then be attributed to the employer. 22
However, a white employee, who was discharged shortly after he circulated a petition
alleging racial discrimination against black employees and requesting the EEOC to
conduct an investigation, could not prove that members of management were aware of
the petition or his actions before the employer decided to discharge him. 23 Similarly, an
employee who claimed to be discharged in retaliation for his wife's filing of a sexual
harassment charge failed to show that the persons responsible for his discharge knew that
the individual who had filed the charge was his wife. 24
A formal notice of charges is not required to establish that a retaliatory motive caused an
employee's discharge for participatory actions. Where undisputed evidence showed that
the employee informally notified the employer of her intention to file charges prior to her
discharge, causation was sufficiently proved. 25 However, the employer's knowledge
that an employee filed a suit was not enough to establish causation without further
evidence when the employee's supervisors had already considered whether to discharge
the employee before they learned of the suit. 26
255 ----What must the employer know about the employee's protected activity in
order to prove causation [SUPPLEMENT]
Case authorities:
Employer's knowledge of filing of prior complaint of discrimination, without more, is
insufficient to prove employer's retaliatory motive. Morales v Human Rights Div. (1995,
SD NY) 878 F Supp 653, 67 BNA FEP Cas 531.
Plaintiff in Title VII retaliatory discharge case may rely on circumstantial evidence to
establish her employer's awareness of protected expression. Dey v Colt Constr. & Dev.
Co. (1994, CA7 Ill) 28 F3d 1446, 65 BNA FEP Cas 523, 2 BNA WH Cas 2d 341, reh, en
banc, den (1994, CA7 Ill) 1994 US App LEXIS 23296.
Former county employee did not meet burden of showing in 1983 action for retaliatory
discharge that First Amendment activity was substantial or motivating factor in county's
decision to discharge her, where although supervisor who discharged her knew that
employee was dissatisfied with management, this did not prove that he was aware that
employee had lodged formal complaints with county officials resulting in public
investigation, and even if he was aware of complaints, they were investigated several
months prior to her termination. Addison v Gwinnett County (1995, ND Ga) 917 F Supp
802.
Plaintiff, who claimed that she was not selected for promotion in retaliation for her
testimony on behalf of fellow employee, failed to prove causation, where evidence
showed that only two people relevant to plaintiff's case knew about her testimony and
neither of them disclosed any information about her testimony to any of people involved
in promotion decision. Hudson v National Academy of Sciences, Inst. of Medicine (1993,
DC Dist Col) 61 BNA FEP Cas 721.
Footnotes
Footnote 18. Second CircuitNeale v Dillon (1982, ED NY) 534 F Supp 1381, 32 BNA
Third CircuitMandia v Arco Chemical Co. (1985, WD Pa) 618 F Supp 1248, 39 BNA
FEP Cas 793.
Fifth CircuitWilson v Willowbrook, Inc. (1977, ND Tex) 433 F Supp 321, 15 BNA
FEP Cas 610, affd without op (CA5) 569 F2d 1154, 17 BNA FEP Cas 674, cert den 439
US 845, 58 L Ed 2d 145, 99 S Ct 141, 18 BNA FEP Cas 204.
Ninth CircuitCohen v Fred Meyer, Inc. (1982, CA9) 686 F2d 793, 29 BNA FEP Cas
1268, 30 CCH EPD 33030.
Eleventh CircuitSmith v Georgia (1982, CA11) 684 F2d 729, 29 BNA FEP Cas 1134,
30 CCH EPD 33016.
EEOCEEOC Decision No. 70-840 (1970) CCH EEOC Dec 6155, 2 BNA FEP Cas
715.
Footnote 19. Gallagher v Kleinwort Benson Government Secur., Inc. (1988, ND Ill) 698
F Supp 1401.
Footnote 20. EEOC v Shoney's, Inc. (1982, ND Ala) 536 F Supp 875, 35 BNA FEP Cas
156.
Footnote 21. Pajic v Cigna Corp. (1990, ED Pa) 56 BNA FEP Cas 1628, 57 CCH EPD
41214.
Footnote 22. Enstrom v Beech Aircraft Corp. (1989, DC Kan) 712 F Supp 841, 59 BNA
FEP Cas 1465.
Dec 6194.
Footnote 24. Mandia v Arco Chemical Co. (1985, WD Pa) 618 F Supp 1248, 39 BNA
FEP Cas 793.
Footnote 26. Johnson v Sullivan (1991, CA7) 945 F2d 976, 57 BNA FEP Cas 124, 57
CCH EPD 41029.
256 How the timing of the employee's activity and the adverse action affects a
showing of causation
View Entire Section

Go to Supplement
Causation may be more readily inferred in a retaliation claim where the interval between
the employee's activity and the adverse action is short. 27
Still, the fact that an employer changes a policy shortly after a claim of discrimination
has been filed in regard to an aspect of that policy does not necessarily make the change
unlawful. For example, an employer did not unlawfully retaliate against female
employees who had filed a complaint in regard to the company's policy of requesting
females to waive coverage of their dependents by the employer's health insurance plan,
where the employer subsequently dropped coverage prescription drugs from the plan for
all employees. 28
Conversely, the intervention of a long period of time between the oppositional or
participatory acts and the alleged retaliatory adverse actions may indicate the lack of a
causal connection. 29 For example, an employee failed to establish retaliation as a
reason for her termination where three months had elapsed between her complaint of
sexual harassment by a co-worker and her discharge. 30 A causal connection was also
not shown where a plaintiff received a discretionary merit pay increase shortly after she
allegedly complained to her superiors of national origin discrimination and then was laid
off as part of a reduction in force more than 15 months after her last complaint of
discrimination. 31
256 ----How the timing of the employee's activity and the adverse action affects a
showing of causation [SUPPLEMENT]
Case authorities:
Timing of adverse employment action can be significant, although not necessarily
determinative, factor in Title VII retaliation action. Mayberry v Vought Aircraft Co.
(1995, CA5 Tex) 55 F3d 1086, 68 BNA FEP Cas 401, 66 CCH EPD 43595.
Plaintiff former employee established requisite causation for claim of retaliatory
discharge where he was hired on 8/27/86, and defendant employer did not communicate
any dissatisfaction with plaintiff's job performance until 4/29/89, which was less than 30
days after he had filed his initial EEOC complaint. Mathis v Jack Brown Buick, Inc.
(1993, ND Ill) 61 BNA FEP Cas 1088.
Footnotes
Footnote 27. Second CircuitManoharan v Columbia University College of Physicians
& Surgeons (1988, CA2) 842 F2d 590, 46 BNA FEP Cas 429, 46 CCH EPD 37866.
Third CircuitGoodwin v Pittsburgh (1979, WD Pa) 480 F Supp 627, 21 BNA FEP Cas
1758, affd without op (CA3) 624 F2d 1090, 24 BNA FEP Cas 451.
Sixth CircuitBoyd v James S. Hayes Living Health Care Agency, Inc. (1987, WD
Tenn) 671 F Supp 1155, 44 BNA FEP Cas 332, 44 CCH EPD 37451; Coleman v
Wayne State University (1987, ED Mich) 664 F Supp 1082, 44 BNA FEP Cas 400, 45
CCH EPD 37629.
Eighth CircuitMead v United States Fidelity & Guaranty Co. (1977, DC Minn) 442 F
Supp 114, 18 BNA FEP Cas 140,k 15 CCH EPD 7885.
Tenth CircuitRomero v Union P. R. Co. (1978, DC Wyo) 459 F Supp 741, 18 BNA
FEP Cas 1134, vacated on other grounds (CA10) 615 F2d 1303, 22 BNA FEP Cas 338,
22 CCH EPD 30679.
DC CircuitGonzalez v Bolger (1980, DC Dist Col) 486 F Supp 595, 22 BNA FEP Cas
FEP Cas 1752, 25 CCH EPD 31794.
Footnote 29. EEOC v Mead Foods, Inc. (1977, WD Okla) 466 F Supp 1, 29 BNA FEP
Cas 677.
Footnote 30. Sardigal v St. Louis Nat. Stockyards Co. (1986, SD Ill) 42 BNA FEP Cas
497, 41 CCH EPD 36613.
Footnote 31. Moncada v El Paso Natural Gas Co. (1986, WD Tex) 40 BNA FEP Cas 556,
40 CCH EPD 36256.
257 How consistency of an employer's actions affect a showing of causation

View Entire Section
While evidence of an employer's inconsistency in following its normal procedures can be
used to establish a causal connection in proving a retaliation claim, evidence of an
employer's consistency in adversely dealing with all who voice discrimination complaints
may demonstrate a pattern of unlawful behavior, and, therefore, a causal connection. For
instance, evidence of similar actions taken against other individual charging parties was
helpful in establishing a plaintiff's oppositional retaliation claim. 32 Conversely,
evidence that the employer departed from its normal procedures when it took the adverse
action in question also helped to demonstrate that the action was caused by retaliatory
motives. 33
A causal connection also may be shown by demonstrating that an employer's retaliatory
pattern of behavior involves a single decisionmaker. For example, a prima facie case was
established despite a 1 1/2 year gap 34 between a plaintiff's opposition to his
supervisor's allegedly racially discriminatory promotion policies and his discharge
following a hearing conducted by the same supervisor. A causal connection was inferred
through evidence of the supervisor's vindictive attitude toward those who expressed
disapproval with his policies and by credible witness testimony that the supervisor had
discriminated against blacks. 35 Similarly, a plaintiff proved that she was a victim of
retaliation for pursuing sex discrimination claims under Title VII by showing that a series
of incidents following her complaint to the EEOC, facially neutral when examined
individually, were too coincidental in combination to be explained as standard operating
procedures, and that the same supervisory official had participated in all of the incidents.
36
Recommendation: Employers should systematically review a supervisor's adverse

action decisions in order to protect itself from retaliation claims caused by individuals
acting for personal reasons rather than legitimate business reasons.
Footnotes
Footnote 32. Mead v United States Fidelity & Guaranty Co. (1977, DC Minn) 442 F
Footnote 33. Sims v MME Paulette Dry Cleaners (1984, SD NY) 580 F Supp 593, 34
BNA FEP Cas 305; Goodwin v Pittsburgh (1979, WD Pa) 480 F Supp 627, 21 BNA FEP
Cas 1758, affd without op (CA3) 624 F2d 1090, 24 BNA FEP Cas 451.
Footnote 34. As to the effect of the length of time between the employee's action and the
employer's adverse action on the showing of a causal relationship, generally, see 256.
Footnote 35. Moss v Southern R. Co. (1986, ND Ga) 41 BNA FEP Cas 553.
Footnote 36. Gemmell v Meese (1986, ED Pa) 655 F Supp 577, 43 BNA FEP Cas 1432.
258 What degree of causation must be shown

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Go to Supplement
While the burden of proof clearly rests with the claimant to show that retaliation was a
reason for the defendant's acts, the courts use different language to describe the degree of
causation that must be shown.
The tests are stated in terms of "reason" or "motive" for the adverse action because that is
what connects the various actions of the parties to "cause" unlawful retaliation. One
court has stated that the retaliation must have played a part in the adverse action,
although it need not have been the sole reason for that action. 37 Other courts have
stated that a plaintiff need not show that retaliation was the sole cause of his termination,
only that the employer's retaliatory motive contributed in some way to his termination, 38
or that the plaintiff must show only that the protected activity and the adverse action are
not wholly unrelated. 39 Most other courts have indicated that the claimant must prove
that the defendant's action would not have occurred "but for" the defendant's desire to
retaliate against the claimant's protected activity. 40 Yet another court has articulated
the degree of causation requirement to be a combination of those two standards. 41
Thus, even if an employer could establish that its dissatisfaction with an employee's
performance was justified and preexisted the employee's age discrimination complaints,
the employer's adverse action taken against the employee may still be considered
retaliatory. Prior dissatisfaction with an employee's performance did not preclude a
finding of retaliation where the employer had a demonstrated retaliatory motive which
could have caused the adverse action despite the employee's poor performance. 42
258 ----What degree of causation must be shown [SUPPLEMENT]
Case authorities:
Where adverse employment action was based on protected and unprotected activities,
court will apply dual motive test to determine whether plaintiff has met her ultimate
burden of proving improper retaliation; under such test, plaintiff must show that her
protected activities were substantial factor in complained-of adverse employment action.
Knickerbocker v City of Stockton (1996, CA9 Cal) 81 F3d 907, 96 CDOS 2771, 96 Daily
Journal DAR 4577, 3 BNA WH Cas 2d 453, 131 CCH LC 33380.
Footnotes
Footnote 37. Goodwin v Pittsburgh (1979, WD Pa) 480 F Supp 627, 21 BNA FEP Cas
Footnote 38. Ta v General Dynamics-Convair (1991, CA9) 1991 US App LEXIS 14789
(unpublished).
Footnote 39. Weaver v Casa Gallardo, Inc. (1991, CA11) 922 F2d 1515, 55 BNA FEP
Cas 27, 55 CCH EPD 40540.
Footnote 40. Second CircuitReaves v Crucible Specialty Metals, Div. of Colt
Industries, Inc. (1989, ND NY) 1989 US Dist LEXIS 9522.
Fourth CircuitWarren v Halstead Industries, Inc. (1986, CA4) 802 F2d 746, 41 BNA
FEP Cas 1665, 41 CCH EPD 36491, reh gr, en banc (CA4) 814 F2d 962.
Fifth CircuitSmalley v Eatonville (1981, CA5) 640 F2d 765, 25 BNA FEP Cas 1059,
25 CCH EPD 31682.
Sixth CircuitSutton v National Distillers Products Co. (1978, SD Ohio) 445 F Supp
1319, 16 BNA FEP Cas 1031, 16 CCH EPD 8165, affd (CA6) 628 F2d 936, 27 BNA
710.
Footnote 42. Dominic v Consolidated Edison Co. (1987, CA2) 822 F2d 1249, 44 BNA
FEP Cas 268, 44 CCH EPD 37340, reh den (CA2) 44 BNA FEP Cas 1048, 44 CCH
EPD 37341.
259 Defending against a retaliation claim

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Go to Supplement
Once a plaintiff establishes a prima facie case of retaliation, 43 the defendant must offer
a legitimate, nonretaliatory reason for its adverse treatment of the plaintiff.
Some common reasons employers have successfully presented to dispel an inference of
retaliation include:
the claimant's poor job performance; 44
the claimant's lack of qualifications for the position; 45
the claimant's violation of work rules, such as being excessively absent, or
insubordinate; 46
the claimant's inability to get along with co-workers or supervisors; 47
the defendant's change in operations. 48
Caution: Even if an employer has an iron-clad justification for its adverse treatment
of a retaliation plaintiff, it should also be sure not to apply different or more severe
treatment to that person than it would to others who are similarly situated, but who
have not engaged in oppositional or participatory activity. Extra punishment may raise
an inference that retaliation or reprisal caused the adverse action.
Recommendation: Whenever possible, employers should document the need for

changes in job duties and assignments if they affect only the charging party or plaintiff
in a discrimination action. Even where such actions are justifiable, the appearance of
singling out an employee who has made discrimination charges or who has opposed
discrimination may raise a reasonable suspicion of retaliation, absent a convincing
explanation.
259 ----Defending against a retaliation claim [SUPPLEMENT]
Case authorities:
Once plaintiff has established prima facie case of retaliation, defendant employer must
articulate some legitimate, nondiscriminatory reason for employment action in question;
once defendant articulates such reason, plaintiff must then demonstrate that defendant's
explanation is pretextual. Zerebnick v Beckwith Mach. Co. (1996, WD Pa) 70 BNA FEP
Cas 665.
Once prima facie case of retaliation has been established, defendant employer may come
forward with legitimate reasons for employment action to negate inference of retaliation;
if defendant offers legitimate reasons for employment action, plaintiff then bears burden
of proving by preponderance of evidence that reasons offered by defendant are
pretextual. Goldsmith v City of Atmore (1993, CA11 Ala) 996 F2d 1155, 7 FLW Fed C
624, 62 BNA FEP Cas 769.
In order to prevail on claim of retaliation, Title VII plaintiff must either offer direct
evidence of discrimination, or proceed under "McDonnell Douglas" burden-shifting
method. Smart v Ball State Univ. (1996, CA7 Ind) 89 F3d 437, 71 BNA FEP Cas 495.
Footnotes
Footnote 43. As to the prima facie case, generally, see 251.
Footnote 44. Younger v Glamorgan Pipe & Foundry Co. (1976, WD Va) 418 F Supp
743, 18 BNA FEP Cas 416, vacated on other grounds (CA4) 561 F2d 563, 18 BNA FEP
Cas 454, affd (CA4) 621 F2d 96, 25 BNA FEP Cas 1582, 23 CCH EPD 30908; Beasley
v Kroehler Mfg. Co. (1976, ND Tex) 406 F Supp 926, 13 BNA FEP Cas 93, 11 CCH
EPD 10930, affd without op (CA5) 538 F2d 897, 13 BNA FEP Cas 1005; Musser v
Mountain View Broadcasting, Inc. (1984, ED Tenn) 36 CCH EPD 35191.
Footnote 45. Smith v Georgia (1985, CA11) 749 F2d 683, 36 BNA FEP Cas 1176, 35
CCH EPD 34884.
Footnote 46. Fourth CircuitWarren v Halstead Industries, Inc. (1986, CA4) 802 F2d
746, 41 BNA FEP Cas 1665, 41 CCH EPD 36491, reh gr, en banc (CA4) 814 F2d 962.
Fifth CircuitCorley v Jackson Police Dept. (1981, CA5) 639 F2d 1296, 36 BNA FEP
Cas 1601, 25 CCH EPD 31663.
Sixth CircuitBrown v Ralston Purina Co. (1977, CA6) 557 F2d 570, 15 BNA FEP Cas
362, 14 CCH EPD 7665.
Eighth CircuitHall v Lowery (1982, ED Ark) 545 F Supp 1152, 46 BNA FEP Cas 326.
Ninth CircuitMiller v Williams (1979, CA9) 590 F2d 317, 20 BNA FEP Cas 809, 19
CCH EPD 9008.
Eleventh CircuitSwint v Volusia County-Department of Public Works (1984, MD Fla)
Footnote 47. First CircuitMonteiro v Poole Silver Co. (1980, CA1) 615 F2d 4, 22 BNA
Second CircuitMcCarthy v Cortland County Community Action Program, Inc. (1980,

ND NY) 487 F Supp 333, 24 BNA FEP Cas 809.
Eleventh CircuitWilliams-Hill v Donovan (1987, MD Fla) 43 BNA FEP Cas 253, 43
CCH EPD 37305.
D.C. CircuitJoshi v Professional Health Services, Inc. (1985, DC Dist Col) 606 F Supp
302, 43 BNA FEP Cas 1092, affd 260 App DC 154, 817 F2d 877, 43 BNA FEP Cas
1099, 43 CCH EPD 37022.
Footnote 48. Third CircuitEEOC v Children's Hospital of Pittsburgh (1976, WD Pa)
415 F Supp 1345, 13 BNA FEP Cas 508, 13 CCH EPD 11359, affd in part and revd in
part on other grounds (CA3) 556 F2d 222, 14 BNA FEP Cas 1821, 14 CCH EPD 7596,
EPD 8018.
Sixth CircuitShanley v Youngstown Sheet & Tube Co. (1982, ND Ind) 552 F Supp 4,
Eighth CircuitSmith v Rexall Drug Co. (1976, ED Mo) 415 F Supp 591, 14 BNA FEP
Ninth CircuitGunther v County of Washington (1979, CA9) 623 F2d 1303, 20 BNA
FEP Cas 792, 22 BNA FEP Cas 1650, 20 CCH EPD 30204, 23 CCH EPD 30900, affd
31877.
Tenth CircuitBurrus v United Tel. Co. (1982, CA10) 683 F2d 339, 29 BNA FEP Cas
260 Demonstrating pretext

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Go to Supplement
Where the employer states a legitimate, nonretaliatory reason for its adverse treatment of
a retaliation claimant, the claimant can still prevail if he shows that the stated reason was
actually a pretext for retaliation. Specific evidence of the employer's intent to retaliate is
not required if the natural consequence of the employer's action is to discourage
employees from exercising their Title VII rights. 49
An employer's stated reason for its adverse treatment of a retaliation plaintiff has been
shown to be pretextual where:
surveillance of the employee greatly increased following his participation in an EEOC
investigation; 50
the employer's excuse of poor performance was inconsistent with the employee's
performance rating prior to the time that she filed a charge with the EEOC, and she was
not interviewed to obtain her version of events that occurred leading to her termination;
51
an employee's co-workers and supervisors knew that she regularly removed papers from
the office, but she was not directed to stop until after she filed discrimination charges
with the EEOC; 52
the employer's discovery of the employee's criminal record, which it claimed was the
reason for the discharge, occurred eight months before the discharge, during which time
the employer was not forced by business considerations to retain the employee. 53
However, in one case retaliation plaintiffs who were given more severe punishment than
other employees received for the same infractions were, nevertheless, unable to prove
retaliation. The employer's stated reason for the more severe punishmentthe perception
that the plaintiffs' infractions exhibited an ongoing pattern of disrespect for and open
defiance of supervisory authoritywas not rebutted as pretextual. 54
Observation: Employers relying on the above case in defense of retaliation claims

should be certain there is solid factual support for such a defense. More often, harsher
treatment of employees who have filed Title VII charges, for the same transgressions,
based on their "defiance of authority" is viewed by a fact finder as proof that retaliation
caused the increase in punishment and that "defiance" was equated by the employer
with the filing of discrimination charges. For a discussion of when an employee may
be disciplined for participatory or oppositional acts, see 236.
Also, an employer successfully countered a retaliation charge, although it failed to
promote a charging party who was given "priority consideration" for the position under a
settlement agreement reached in a prior discrimination claim. While the selecting official
admitted that he was upset by the first claim and the settlement because he felt the claim
had been frivolous, his belief that the employee did not have the necessary supervisory
experience to warrant the promotion was persuasive and was not, therefore, a pretext for
discrimination. 55
An employer's insistence on properly documenting the job performance of a retaliation
complainant and all other managers, so it can investigate the underlying discrimination
complaint and management's response to it, does not prove a retaliatory motive even if it
does not insist on such documentation before the complainant files a charge. 56
260 ----Demonstrating pretext [SUPPLEMENT]
Case authorities:
Although intent to discriminate is not requisite element for making out EPA claim,
showing of discriminatory motivation may be used to demonstrate that affirmative
defense on which employer relies is in fact pretextual. Welde v Tetley, Inc. (1994, MD
Pa) 864 F Supp 440, 65 BNA FEP Cas 1423, 128 CCH LC 33125, 2 BNA WH Cas 2d
515.
Even assuming that black school employee presented prima facie case of racial
discrimination and retaliation in employment based upon district's decision to send
another employee to seminar instead of him, school district presented legitimate,
nondiscriminatory reasons for adverse employment action, that employee was not most
qualified person to attend seminar, that he harassed co-worker, and that he submitted
false mileage reimbursement reports. Ruby v Springfield R-12 Pub. Sch. Dist. (1996,
CA8 Mo) 76 F3d 909, 70 BNA FEP Cas 199, 67 CCH EPD 43941, reh den (1996, CA8
Mo) 1996 US App LEXIS 5145.
Footnotes
Footnote 50. Crawford v Roadway Express, Inc. (1980, WD La) 485 F Supp 914, 26
BNA FEP Cas 243.
Footnote 51. Francoeur v Corroon & Black Co. (1982, SD NY) 552 F Supp 403, 34 BNA
FEP Cas 323, 26 BNA WH Cas 1127.
Footnote 52. Toth v American Greetings Corp. (1985, ND Ohio) 40 BNA FEP Cas 1768,
40 CCH EPD 36191.
Footnote 53. EEOC v Carolina Freight Carriers Corp. (1989, SD Fla) 723 F Supp 734, 51
Footnote 54. Simmons v Camden County Bd. of Education (1985, CA11) 757 F2d 1187,
37 BNA FEP Cas 795, 36 CCH EPD 35214, reh den, en banc (CA11) 767 F2d 938 and
EPD 35668.
Footnote 55. Dominguez v Nelson (1986, SD Tex) 43 BNA FEP Cas 74.
B. Other Prohibited Acts Relating to Discrimination [261-267]
Research References
29 USCS 206, 623, 629; 42 USCS 1985, 2000e-2, 2000e-13
Employment Coordinator EP-12,500 et seq., EP-12,700 et seq., EP-12,900 et
seq.
1. Coercing Another to Discriminate [261, 262]
261 Generally
View Entire Section
Go to Supplement
Some federal and state job discrimination laws make it unlawful for particular entities to
coerce other persons into violating those statutes. Federal laws prohibiting these activities
are explicitly limited to labor organizations, while state statutes with these prohibitions
are normally broader with respect to the entities covered. 57
Case authorities:
Requiring employee to discriminate is itself unlawful employment practice; thus,
correctional officer who alleged that he was discharged for refusing to implement policy
that discriminated against black inmates on work details stated cause of action, and
question of whether or not inmates were themselves employees under Act was irrelevant.
Moyo v Gomez (1994, CA9 Cal) 94 CDOS 6045, 94 Daily Journal DAR 11052, 65 BNA
FEP Cas 821.
Footnotes
Footnote 57. For discussion of state job discrimination laws prohibiting the coercion of
violations of job discrimination statutes, see Employment Coordinator EP-12,500 et
seq.
262 Federal prohibition against coercive activity by labor organizations

View Entire Section
Under Title VII of the Civil Rights Act of 1964, 58 the Age Discrimination in
Employment Act (ADEA), 59 and the Equal Pay Act, 60 a labor organization cannot
cause or attempt to cause an employer to discriminate in violation of those statutes. 61
A union also has been enjoined from engaging in any practice that causes or attempts to
cause a contractor to discriminate in violation of obligations imposed by Executive Order
11246. 62
Observation: The ban on coercive activity by unions is directed primarily at

activities undertaken in their role as collective bargaining representatives. When labor
organizations are acting in their capacities as employers, rather than as bargaining
representatives, they also are subject to the same prohibitions on discrimination as all
other employers, provided that they are covered by federal job discrimination statutes.
63
Footnotes
Footnote 58. 42 USCS 2000e-2(c)(3).
Footnote 59. 29 USCS 623(c)(3).
Footnote 61. As to other prohibitions in federal job discrimination statutes which are
explicitly addressed toward the activities of labor unions, see 1113.
Footnote 62. United States v International Asso. of Operating Engineers (1977, DC Or)
Footnote 63. As to the coverage of federal job discrimination statutes, generally, see
36 et seq.
2. Complicity in Another's Discrimination [263, 264]
263 Generally; the Ku Klux Klan Act

View Entire Section
A few federal laws and at least one statute in most states explicitly prohibit complicity
with another party's unlawful or discriminatory employment practices. 64
A federal law passed in 1871, primarily to combat the activities of the Ku Klux Klan,
explicitly prohibits two or more persons from conspiring to directly or indirectly deprive
a person or class of persons of equal protection of the law, or of equal privileges or
immunities under the law. A victim of a statutory violation has a cause of action against
any one or more of the conspirators. 65
The act requires a violation of some law other than 1985(3) itself 66 and requires that
the deprivation must be of a constitutional right or another right protected by 1985(3).
67 However, the act reaches both public and private wrongs 68 including
deprivations of rights conferred by a state. 69
The Ku Klux Klan Act's interaction with other job discrimination laws is discussed at
263.
The conspiratorial element of the Act's prohibition may involve both public and private
parties as part of the conspiracy. 70 However, this element of a violation will not
normally be satisfied with respect to a single incident involving actions taken by an
employer and its employees, 71 or by two or more agents or employees of a single
corporation, 72 because those parties comprise a single legal entity.
Although a corporation cannot conspire with itself under 42 USCS 1985(3), an
intracorporate conspiracy may be established where individual defendants are alleged to
have acted outside the scope of their employment, or for personal reasons, in carrying out
the alleged conspiracy. 73
The conspiratorial element of a violation will be met when officers of a single corporate
entity engage in more than one incident of discrimination, such as harassment, followed
by a promotional denial and a retaliatory transfer. 74 Furthermore, conspiracies within a
single governmental entity do meet the conspiratorial element required by the act,
otherwise official discriminatory policies would be immunized from attack. 75
Footnotes
Footnote 64. Complicity provisions in state job discrimination laws are discussed in
Employment Coordinator EP- 12,700 et seq.
Footnote 66. McLellan v Mississippi Power & Light Co. (1977, CA5) 545 F2d 919.
Footnote 67. Amro v St. Luke's Hospital (1986, ED Pa) 39 BNA FEP Cas 1574, 39 CCH
EPD 36079.
Footnote 68. Griffin v Breckenridge (1971) 403 US 88, 29 L Ed 2d 338, 91 S Ct 1790,
Footnote 69. Life Ins. Co. v Reichardt (1979, CA9) 591 F2d 499.
Footnote 70. Burrell v Board of Trustees (1988, MD Ga) 696 F Supp 1522, 49 CCH EPD
38734.
Footnote 71. Ivory v Boise Cascade Corp. (1987, DC Or) 43 BNA FEP Cas 1642.
Footnote 72. Taylor v Shell Offshore, Inc. (1988, MD La) 700 F Supp 314, 48 BNA FEP
Cas 785.
Footnote 73. Council v Topeka (1990, DC Kan) 1990 US Dist LEXIS 1315.
Footnote 74. Volk v Coler (1988, CA7) 845 F2d 1422, 46 BNA FEP Cas 1287, 46 CCH
EPD 37957.
Footnote 75. Diem v San Francisco (1988, ND Cal) 686 F Supp 806, 48 CCH EPD
38593.
264 The Conspiracy to Obstruct Justice Act

View Entire Section
The Conspiracy to Obstruct Justice Act prohibits two or more persons from conspiring to
deter, by force, intimidation, or threat, any other person from attending or testifying in
any court of the United States. 76 However, the statute's protections do not extend to
retaliation for testimony before an administrative agency rather than a court. 77
Therefore, the Act forbids private job discrimination that has the effect of deterring
legitimate resort to the federal courts by employees or applicants. 78
Footnotes
Footnote 77. Morast v Lance (1987, CA11) 807 F2d 926, 2 BNA IER Cas 1230.
Footnote 78. Kimble v D. J. McDuffy, Inc. (1980, CA5) 623 F2d 1060, on reh, en banc
(CA5) 648 F2d 340, cert den 454 US 1110, 70 L Ed 2d 651, 102 S Ct 687.
3. Obstruction [265-267]
265 Generally
View Entire Section
Obstruction prohibitions include resisting, impeding, or otherwise interfering in the
administrative enforcement of a job discrimination statute, and may also include
interfering with another person's compliance with the statute. Such conduct is unlawful
under Title VII, the ADEA, and under the job discrimination statutes of most states. 79
Footnotes
Footnote 79. For discussion of state job discrimination statutes as prohibiting obstruction,
see Employment Coordinator EP-12,900 et seq.
266 Under Title VII

View Entire Section
Title VII, by incorporating another federal statute (18 USCS 111, 1114), makes it a
crime to forcibly assault, kill, resist, oppose, impede, intimidate, or interfere with any
officers, agents, and employees of the EEOC in the performance of their official duties
and functions. 80
Footnotes
267 Under the Age Discrimination in Employment Act

View Entire Section
The Age Discrimination in Employment Act (ADEA) provides criminal penalties for
anyone who forcibly resists, opposes, impedes, intimidates or interferes with a duly
authorized representative of the Secretary of Labor while engaged in the performance of
duties under the Act. 81
Observation: While the statute specifically refers to Labor Department personnel,

the enforcement functions under the ADEA have been transferred from the Secretary
of Labor to the EEOC by virtue of an Executive Branch reorganization plan 82
without any amendment to the statute.
Footnotes
Footnote 82. 1211.
V. EXCEPTIONS TO PROHIBITIONS ON DISCRIMINATORY

CONDUCT [268-303]
A. Business Necessity [268]

Research References
42 USCS 2000e-k
P.L. 102-166, 105 (Civil Rights Act of 1991)
12 Am Jur POF2d 49, "Business Necessity" Justifying Prima Facie Discriminatory
Employment Practice
13, 116-121
268 Generally
View Entire Section
Go to Supplement
Business necessity is a statutorily created exception to job discrimination claims under
federal law arising under the disparate-impact method of proving discrimination. 83
State job discrimination laws may similarly apply this exception, and some states have
enacted a business necessity exception. 84
The business necessity exception in a Title VII case originally was recognized where a
job requirement 85 that was equally applied to all applicants had a disproportionate
effect on a group protected by the statute. 86
The concept of "business necessity" was
subsequently used by lower courts to describe one method that may be used by an
employer to defend against an unlawful disparate-impact case established by the
complaining party. It was limited to only nonintentional discrimination claims. 87 As
amended by the Civil Rights Act of 1991, 88 Title VII expressly requires the employer
to defend against a disparate-impact claim by proving that the challenged employment
practice is job-related for the position in question and is consistent with business
necessity. 89
Therefore, the "business necessity" exception in Title VII is a proof issue that applies
under all federal laws in which a disparate-impact challenge may be raised. 90
The applicability of the concept of business necessity to claims arising under the
Americans with Disabilities Act is discussed elsewhere. 91
Practice Aids: Cassista v. Community Foods, Inc. [Cal (1993)]: Drawing the line at
obesity? 24 Golden Gate LR 523 (1994).
Downsizing: Is there an ethical dimension to a partial plant closing? 44 Lab LJ 697
(1993).
Footnotes
Footnote 83. As to the disparate- impact theory, generally, see 2707 et seq.
Footnote 84. As to the business necessity exception under state laws, see Employment
Footnote 85. As to an employer's requirements for determining whether an applicant or
employee will get or keep a particular job, see 316 et seq.
Footnote 86. Griggs v Duke Power Co. (1971) 401 US 424, 28 L Ed 2d 158, 91 S Ct
Footnote 87. Miller v Texas State Bd. of Barber Examiners (1980, CA5) 615 F2d 650, 22
Footnote 88. P.L. 102- 166, 105.
Footnote 89. 42 USCS 2000e-k(2)(A)(i).
Annotation: What constitutes "business necessity" justifying employment practice
prima facie discriminatory under Title VII of Civil Rights Act of 1964 (42 USCS
2000e et seq.), 36 ALR Fed 9.
Practice References 12 Am Jur POF2d 49, "Business Necessity" Justifying Prima
Facie Discriminatory Employment Practice.
Business necessity. 21 Am Jur Trials 1, Employment Discrimination Action Under
Federal Civil Rights Acts 13, 116-121.
Law Reviews: Perry, Balancing Equal Employment Opportunities With Employers'
Legitimate Discretion: The Business Necessity Response to Disparate Impact
Discrimination Under Title VII. 12 Indust Rel L J 1 (1990).
Footnote 90. For further discussion, see 2767.
B. Bona Fide Occupational Qualifications [269- 286]
Research References
29 USCS 623; 42 USCS 2000e-2
29 CFR Parts 1604, 1606, 1625.6
5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form 155; 16 Am Jur Pl & Pr Forms
(Rev), Labor and Labor Relations, Form 269
14
Modjeska, Employment Discrimination Law 2d, 1:12, 1:28, 1:41, 5:8
1. In General [269-271]
269 Generally
View Entire Section
Go to Supplement
A few federal and many state 92 job discrimination laws contain an exception that
allows an employer to engage in an otherwise unlawful form of prohibited discrimination
when the action is based on a bona fide occupational qualification reasonably necessary
to the normal operation of a business or enterprise.
General proof issues arising in the context of the use of the bona fide occupational
qualification (BFOQ) exception, including use of the BFOQ defense in conjunction with
other defenses, are discussed elsewhere, 93 as are performance and
qualifications-related exceptions other than the BFOQ. 94
Observation: The BFOQ exception under federal job discrimination laws should not
be confused with an employer's imposition of job requirements. A BFOQ exception is
a specific statutory rule that permits an employer to exclude particular protected group
members, but, nevertheless, seek to justify the exclusion based on the character or
circumstances of the job. Employers may impose other job requirements that do not
facially preclude the employment of particular protected group members. However,
lacking a specific BFOQ exception, such other requirements are subject to challenge as
either being unequally applied against particular protected group members, or on the
basis of their unlawful adverse impact against protected group members even if evenly
applied to all applicants or employees.
Practice Aids: An analysis of weight-based discrimination: Obesity as a disability, 46
Lab LJ 4:238 (1995).

Case authorities:
With respect to bona fide occupational qualification exception, employer must be able to
show that qualification at issue is reasonably necessary to essence of its business, and
must justify its use of age as proxy for that qualification. Gately v Massachusetts (1993,
CA1 Mass) 2 F3d 1221, 17 EBC 1105, 62 BNA FEP Cas 1033, 62 CCH EPD 42508,
summary op at (CA1 Mass) 21 M.L.W. 3312.
Courts are to recognize bona fide occupational qualification defense, but plain language
of statute (42 USCS 2000e-2(e)) precludes race-based qualification. Ray v University
of Arkansas (1994, ED Ark) 64 BNA FEP Cas 533.
Disallowance of fees for optional internal review proceedings is good public policy, since
it encourages resolution of discrimination claims at local level. Duello v Board of
Regents of Univ. of Wis. Sys. (1993) 176 Wis 2d 961, 501 NW2d 38, 62 BNA FEP Cas
665.
Footnotes
Footnote 92. For discussion of state job discrimination laws containing a bona fide
occupational qualification provision, see Employment Coordinator EP-14,140 et seq.
Annotation: Handicap as job disqualification under state legislation forbidding job
270 Title VII's BFOQ exception

View Entire Section
Go to Supplement
Title VII permits employers to hire and employ employees, permits employment agencies
to classify or refer individuals for employment, permits labor organizations to classify
membership or to classify or refer individuals for employment, and permits employers,
labor organizations, or joint labor-management training committees to admit or employ
individuals in such training programs, on the basis of religion, sex and national origin, in
instances where religion, sex, or national origin is a bona fide occupational qualification
reasonably necessary to the normal operation of that particular business or enterprise. 95
This exception is to be interpreted narrowly with respect to claims of both sex 96 and
national origin 97 discrimination.
The words "hire or employ" in the exemption have been interpreted to limit its
application to selection procedures only. Thus, a religious institution could not claim a
BFOQ to justify providing fringe benefits on a sexually discriminatory basis. 98
However, the exception has been applied to an involuntary transfer situation in the Third
Circuit. 99
Observation: Absent persuasive legislative history to the contrary, the restrictive

reading of the word "employ" in Freemont 1 may be an unreasonable limitation on the
BFOQ exception. Such an interpretation would, for example, prevent a religious
institution from discharging a minister who later renounced the faith that originally
qualified him for employmenta result that would seem at odds with the intent of the
exception.
270 ----Title VII's BFOQ exception [SUPPLEMENT]
Case authorities:
To establish bona fide occupational qualification defense in disparate treatment Title VII
sex discrimination case, defendant employer must have basis in fact for its belief that no
members of one sex could perform job in question; however, appraisals need not be
based on objective, empirical evidence, and common sense and deference to experts in
field may be used. Healey v Southwood Psychiatric Hosp. (1996, CA3 Pa) 78 F3d 128,
70 BNA FEP Cas 439.
In disparate treatment Title VII case, defendant's affirmative defense is that its policy,
practice, or action is based on bona fide occupational qualification. Healey v Southwood
Psychiatric Hosp. (1996, CA3 Pa) 78 F3d 128, 70 BNA FEP Cas 439.
Footnotes
Footnote 95. 42 USCS 2000e-2(e)(1).
Practice References Bona Fide Occupational Qualification. 21 Am Jur Trials 1,
Employment Discrimination Action Under Federal Civil Rights Acts 14.
Footnote 98. EEOC v Fremont Christian School (1986, CA9) 781 F2d 1362, 7 EBC
1073, 39 BNA FEP Cas 1815, 27 BNA WH Cas 890, 39 CCH EPD 35872, 103 CCH
LC 34740.
Footnote 99. Moteles v University of Pennsylvania (1984, CA3) 730 F2d 913, 34 BNA
FEP Cas 424, 35 BNA FEP Cas 1783, 33 CCH EPD 34221, 34 CCH EPD 34322, cert
34663.
Footnote 1. EEOC v Fremont Christian School (1986, CA9) 781 F2d 1362, 7 EBC 1073,
39 BNA FEP Cas 1815, 27 BNA WH Cas 890, 39 CCH EPD 35872, 103 CCH LC
34740.
271 Other federal BFOQ exceptions

View Entire Section
Federal government contractors covered by Executive Order 11246 have a bona fide
occupational qualification exception exclusively pertaining to sex discrimination. 2
The BFOQ exception pertaining to age discrimination prohibitions in federal law, as well
as its application to particular situations, is discussed elsewhere. 3
Footnotes
Footnote 2. As to the provisions of Executive Order 11246, generally, see 22.
2. Particular Characteristics as BFOQs [272-286]
a. Sex [272-276]
272 Authenticity or genuineness

View Entire Section
Go to Supplement
While Title VII's bona fide occupational qualification (BFOQ) exception is meant to be
an extremely narrow exception to the general prohibition against sex discrimination, 4
the EEOC considers the exception to be applicable when necessary for the purpose of
authenticity or genuineness, such as a situation requiring an actor or actress. 5
272 ----Authenticity or genuineness [SUPPLEMENT]
Practice Aids: The inequality approach and the BFOQ: use of feminist theory to
reinterpret the Title VII BFOQ exception, 1993 WIS LR 261 (1993).
Sex discrimination in job assignment or transfer as violation of Title VII of Civil Rights
Act of 1964 (42 USCS secs. 2000e et seq.) 123 ALR Fed 1.
Permissible sex discrimination in employment based on bona fide occupational
qualifications (BFOQ) under 703(e)(1) of Title VII of Civil Rights Act of 1964 (42
USCS 2000e2(e)(1)). 110 ALR Fed 28.
Case authorities:
To establish bona fide occupational qualification defense in disparate treatment Title VII
sex discrimination case, defendant employer must have basis in fact for its belief that no
members of one sex could perform job in question; however, appraisals need not be
based on objective, empirical evidence, and common sense and deference to experts in
field may be used. Healey v Southwood Psychiatric Hosp. (1996, CA3 Pa) 78 F3d 128,
70 BNA FEP Cas 439.
Footnotes
Footnote 4. Dothard v Rawlinson (1977) 433 US 321, 53 L Ed 2d 786, 97 S Ct 2720,
Footnote 5. 29 CFR 1604.2(a)(2).
Annotation: Permissible sex discrimination in employment based on bona fide
occupational qualifications (BFOQ) under 703(e)(1) of Title VII of Civil Rights Act
of 1964 (42 USCS 2000e-2(3)(1), 110 ALR Fed 28.
273 Customer or co-worker preference as not establishing BFOQ

View Entire Section
When authenticity or genuineness 6 is not an issue, a sex-based BFOQ under Title VII
will not be recognized by the EEOC merely because of the preferences of co-workers,
clients, or customers. 7 Therefore, being a man has been found not to constitute a
BFOQ for:
a vice president of international operations, although foreign clients might react
negatively to a woman in that position; 8
a truck driver, even though black assistants refused to work with a woman due to the
prejudices of the black community in which the truck operated; 9

a bus driver, even when male religious students refused to board a bus driven by a
woman; 10
a position that required the person to entertain male customers by taking them on plant
tours, on hunting trips, and to football games; 11
a child development supervisor, regardless of the employer's claim that the children in
the program needed a strong male role model. 12
Likewise, being a female was not a BFOQ under Title VII for the position of airline flight
attendant, even if most passengers preferred to be served by women. 13
An exception to the general rule that a BFOQ is not available based on customer or client
preference has sometimes been recognized when the preference concerns an issue of
personal privacy. 14
Footnotes
Footnote 6. 272.
Footnote 7. 29 CFR 1604.2(a)(1)(iii).
Annotation: Effect of customer's interest or preference on establishing bona fide
occupational qualification under Title VII of Civil Rights Act of 1964 (42 USCS
2000e-2(e)), 63 ALR Fed 402.
Footnote 8. Fernandez v Wynn Oil Co. (1981, CA9) 653 F2d 1273, 26 BNA FEP Cas
815, 26 CCH EPD 32060.
Footnote 10. Bollenbach v Board of Education (1987, SD NY) 659 F Supp 1450, 43
Dec 6247.
Footnote 12. EEOC Decision No. 68-4-538E (1969) 2 BNA FEP Cas 537, CCH EEOC
Dec 6125.
Footnote 13. Diaz v Pan American World Airways, Inc. (1971, CA5) 442 F2d 385, 3
BNA FEP Cas 337, 3 BNA FEP Cas 469, 3 CCH EPD 8166, cert den 404 US 950, 30
Footnote 14. 275.
274 Inappropriateness of assumptions concerning performance ability

View Entire Section
Sex will not be a bona fide occupational qualification (BFOQ) under Title VII if the
exception is being claimed on the basis of a stereotypical characterization of the sexes. 15
For example, assumptions concerning the comparative employment characteristics of
women in general, such as the assumption that the turnover rate among women is higher
than among men, 16 or assumptions that men are less capable of assembling intricate
equipment, or that women are less capable of aggressive salesmanship, 17 will not
satisfy the standards for implementing the exception.
To establish a BFOQ based on performance ability an employer must have reasonable
cause, that is, a factual basis to believe, that all or substantially all of the excluded sex
would be unable to perform the job safety and efficiently. 18 The exclusion of one sex
based on performance ability must be based on actual sexual characteristics, not on
characteristics that correlate with one gender. 19 Furthermore, the employer must show
that the essence of its business operation would be undermined by not restricting hiring to
members of one sex, 20 or by the employment of both sexes. 21
Therefore, sex-based BFOQs could not be established when based on the assumption
that:
women could not work long hours at physically demanding labor; 22
women were not physically strong enough to defend themselves and maintain order in a
tavern; 23
women could not work in dangerous neighborhoods. 24
When a sex-based BFOQ is evaluated for performance-related reasons pertaining to
safety risks, the only risks that may be considered are those pertaining to the general
public or co-workers, not risks to the employee or applicant herself or to an unborn child
she might be carrying or later conceive. 25
Observation: This same evaluation also applies to safety-related BFOQs under that
age discrimination exception to the ADEA. 26
Observation: Assumptions concerning performance ability may run afoul of Title

VII's sex discrimination prohibitions even if not used as a basis for a BFOQ. The most
notable examples of such instances occur in the context of imposing particular job
requirements 27 and in the context of compensation discrimination. 28
Footnotes

of 1964 (42 USCS 2000e-2(3)(1), 110 ALR Fed 28.
employmentAllegationImposition of non-job-related employment standard of
masculine stereotypical personality traits. 5A Am Jur Pl & Pr Forms (Rev), Civil
Rights, Form 155.
Allegations in complaintSex discrimination by employerImposition of
non-job-related employment standard of masculine stereotypical personality traits [42
USCS 2000e-2(a); FRCP 8(a)]. 12 Federal Procedural Forms, L Ed, Job
Footnote 16. 29 CFR 1604.2(a)(1)(i).
Footnote 17. 29 CFR 1604.2(a)(1)(ii).
Footnote 18. Weeks v Southern Bell Tel. & Tel. Co. (1969, CA5) 408 F2d 228, 1 BNA
Footnote 19. Rosenfeld v Southern Pacific Co. (1971, CA9) 444 F2d 1219, 3 BNA FEP
Cas 604, 3 CCH EPD 8247.
Footnote 20. Diaz v Pan American World Airways, Inc. (1971, CA5) 442 F2d 385, 3
BNA FEP Cas 337, 3 BNA FEP Cas 469, 3 CCH EPD 8166, cert den 404 US 950, 30
Footnote 21. Jatczak v Ochburg (1982, ED Mich) 540 F Supp 698, 28 BNA FEP Cas
1773, 29 CCH EPD 32838.
Footnote 22. Rosenfeld v Southern Pacific Co. (1971, CA9) 444 F2d 1219, 3 BNA FEP
Cas 604, 3 CCH EPD 8247.
Footnote 23. Krause v Sacramento Inn (1973, CA9) 479 F2d 988, 5 BNA FEP Cas 1074,
6583.
113 L Ed 2d 158, 111 S Ct 1196, 55 BNA FEP Cas 365, 14 BNA OSHC 2102, 55 CCH
EPD 40605, 1991 CCH OSHD 29256.
Footnote 26. As to safety- related BFOQs under age discrimination laws, generally, see
282.
Footnote 27. As to imposition of job requirements, generally, see 316 et seq.
Footnote 28. As to discrimination in wages, salaries, or other forms of compensation, see

725 et seq.
275 Effect of personal privacy concerns

View Entire Section
While customer or client preferences cannot normally satisfy the requirements for a
sex-based BFOQ, 29 such preferences have been found to constitute legitimate grounds
for establishing a sex-based BFOQ when they concerned a customer's or client's personal
privacy interests. 30
Personal privacy concerns have been the most fruitful grounds for employers to assert a
sex-based BFOQ. For example, sex has been found to be a BFOQ for the jobs of:
nurse's aide in a female nursing home; 31
nurse in the labor and delivery section of an obstetrical hospital; 32
janitor in a men's bathhouse; 33
washroom attendant; 34
security guard, where the duties involved searching male employees. 35
This type of BFOQ involves providing evidence concerning the stressful and
embarrassing confrontations that could arise absent the necessary sex-based distinction,
36 and can only be demonstrated when the employer shows that job responsibilities
cannot be reassigned so as to minimize, 37 or eliminate 38 the clash between the
personal privacy concerns at issue and Title VII's antidiscrimination mandates.
Administrative necessity, not mere inconvenience, is needed to justify the imposition of a
BFOQ in this context. 39 However, the employer is not required to hire additional
personnel in order to avoid the conflict between privacy concerns and Title VII's sex
discrimination prohibition. 40
Personal privacy concerns are not a legitimate ground for establishing a sex-based BFOQ
unless the employer is informed of them and no reasonable option exists besides total
exclusion of one sex from employment. Thus, a women's exercise club did not establish
a BFOQ permitting the exclusion of male employees based on customer privacy interests
because it did not prove either that members were sufficiently concerned about the
presence of male employees so that the business would be undermined, or that there were
no reasonable alternatives to totally excluding males from employment. 41
Footnotes
Footnote 29. 273.

Footnote 30.
Annotation: Effect of customer's interest or preference on establishing bona fide
occupational qualification under Title VII of Civil Rights Act of 1964 (42 USCS
2000e-2(e)), 63 ALR Fed 402.
Footnote 31. Fesel v Masonic Home of Delaware, Inc. (1978, DC Del) 447 F Supp 1346,
Footnote 32. Backus v Baptist Medical Center (1981, ED Ark) 510 F Supp 1191, 25
BNA FEP Cas 809, 26 CCH EPD 32111, vacated on other grounds (CA8) 671 F2d
Footnote 33. Brooks v ACF Industries, Inc. (1982, SD W Va) 537 F Supp 1122, 28 BNA
FEP Cas 1373, 29 CCH EPD 32863.
Footnote 34. Norwood v Dale Maintenance System, Inc. (1984, ND Ill) 590 F Supp 1410,
Footnote 35. Sutton v National Distillers Products Co. (1978, SD Ohio) 445 F Supp
Footnote 36. Norwood v Dale Maintenance System, Inc. (1984, ND Ill) 590 F Supp 1410,
Footnote 37. United States v Gregory (1987, CA4) 818 F2d 1114, 46 BNA FEP Cas
Footnote 38. Jones v Hinds General Hospital (1987, SD Miss) 666 F Supp 933, 44 BNA
FEP Cas 1076, 44 CCH EPD 37521.
Footnote 39. Gunther v Iowa State Men's Reformatory (1980, CA8) 612 F2d 1079, 21
Footnote 40. Fesel v Masonic Home of Delaware, Inc. (1978, DC Del) 447 F Supp 1346,
Footnote 41. EEOC v Sedita (1991, ND Ill) 755 F Supp 808, 55 BNA FEP Cas 77, 55
CCH EPD 40546.
276 State law as basis for BFOQ

View Entire Section
The prevailing view is that sex-based BFOQs asserted under a state law requirement
must meet the normal BFOQ standards. Otherwise, such laws are invalid as protective
legislation in conflict with Title VII's requirements to avoid sex discrimination. 42
Therefore, in cases involving correctional institutions, despite the fact that state
regulations 43 or state court rulings regarding the constitutional rights of inmates 44
precluded correctional officials from searching inmates of the opposite sex, no BFOQ
could be established when the employer failed to show that the exception was necessary
in order to avoid undermining the prison system, 45 or that job responsibilities could not
be arranged to avoid infringing on the inmates' personal privacy concerns. 46
However, despite a lack of empirical studies or other objective scholarly evidence, the
Seventh Circuit has concluded that the decision of correctional administrators to impose a
sex-based BFOQ for prison guard positions, allegedly to enhance rehabilitative efforts,
was entitled to substantial weight if made in accordance with the available information,
in a reasoned decisionmaking process, and grounded in the experience of such officials.
47
Footnotes
Footnote 42. 152.
of 1964 (42 USCS 2000e-2(3)(1), 110 ALR Fed 28.
Footnote 43. Edwards v Department of Corrections (1985, MD Ala) 615 F Supp 804, 45
BNA FEP Cas 1540.
Footnote 44. Bagley v Watson (1983, DC Or) 579 F Supp 1099, 35 BNA FEP Cas 1250,
34 CCH EPD 34461.
Footnote 45. 274.
Footnote 46. 275.
Footnote 47. Torres v Wisconsin Dept. of Health & Social Services (1988, CA7) 859 F2d
194, 109 S Ct 1133, 48 BNA FEP Cas 1896, 49 CCH EPD 38760 and cert den 489 US
1082, 103 L Ed 2d 841, 109 S Ct 1537, 49 BNA FEP Cas 464.
b. Age [277-282]
277 Generally
View Entire Section
Go to Supplement
The Age Discrimination in Employment Act (ADEA), while generally prohibiting job
discrimination on the basis of age, 48 explicitly allows employers, labor organizations,
and employment agencies to perform otherwise discriminatory acts based on age where
age is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal
operation of the particular business. 49
The BFOQ exception is narrowly construed 50 and is given limited scope and
application both by the courts 51 and by the EEOC. 52
The BFOQ exception is established by showing that: (1) it is reasonably necessary 53
to the essence of a particular business, 54 and; (2) either a factual basis exists to believe
that most members of the protected group cannot perform the job safely and efficiently,
55 or the excluded class members cannot be evaluated on an individual basis. 56
While federal contractors also may rely on a BFOQ exception under Executive Order
11141, 57 there are no textual or judicial guidelines to assist in further clarifying the
scope of that exception.
Practice Aids: Rethinking the age sixty mandatory retirement rule: A look at the
newest movement, 60 J Air L &C 1:329 (1994).
Case authorities:
ADEA action for injunctive relief brought by members of police force, who prior to
consolidation of four separate police forces were subject to mandatory retirement age of
65 and after consolidation were subject to mandatory retirement age of 55, was not
precluded by doctrine of stare decisis on basis of prior cases which had held that
mandatory retirement age of 50 for one of now-consolidated police forces was BFOQ,
since question of whether mandatory retirement age is BFOQ is fact-intensive inquiry,
underlying facts in present case are different from prior cases, and legal landscape has
been altered in critical respects since prior cases were decided. Gately v Massachusetts
(1993, CA1 Mass) 17 EBC 1105, 62 BNA FEP Cas 1033, 62 CCH EPD 42508,
summary op at (CA1 Mass) 21 M.L.W. 3312.
Footnotes
Footnote 48. As to the provisions of the ADEA, generally, see 168 et seq.
Annotation: Age as bona fide occupational qualification "reasonably necessary" for
normal conduct of business under 4(f)(1) of Age Discrimination in Employment Act
(29 USCS 623(f)(1)), 63 ALR Fed 610.
Footnote 50. EEOC v Janesville (1980, CA7) 630 F2d 1254, 24 BNA FEP Cas 1294, 24
CCH EPD 31252.
Footnote 51. EEOC v County of Santa Barbara (1982, CA9) 666 F2d 373, 3 EBC 1076,
Footnote 53. 557.
The employer's burden of proving a BFOQ exception under the ADEA is discussed at
2765.
Footnote 54. 279.
Footnote 55. 280.
Requirements for establishing a BFOQ when public safety is at issue are discussed at
282.
Footnote 56. 281.
While the BFOQ exception may be raised in any employment context covered by the
ADEA, its specific use with respect to the heavily litigated area of the retirement of pilots
and flight engineers is discussed at 1047 and discussed at 1048.
Footnote 57. 169.
278 Demonstrating that BFOQ is reasonably necessary

View Entire Section
Go to Supplement
To establish a bona fide occupational qualification (BFOQ) under the ADEA, to justify
age discrimination, the employer must first show that the BFOQ is reasonably necessary
to the essence of the business operation involved. 58
A BFOQ cannot be established if there is no rational basis in fact for the claimed
reasonable necessity. For instance, an employer's concern for its employees' physical
fitness and health is not reasonably necessary to the business if physical fitness is not
necessary to the job. 59 However, reasonable necessity is not demonstrated by merely
showing a rational basis in fact, since it may be rational to require mandatory retirement
at any age, a result that would contradict the ADEA's requirements that employers justify
the rationale for the age chosen as the BFOQ. Rather, the employer must establish a
substantial basis for believing that all or nearly all employees above a specified age lack
the qualifications required for the position. 60
278 ----Demonstrating that BFOQ is reasonably necessary [SUPPLEMENT]
Case authorities:
Use of any comparative figures other than general labor force statistics presumes that
there are some special qualifications necessary for particular job that many persons do
not possess or cannot fairly readily acquire; thus, where automobile dealership employer
did not require prior sales experience as condition for hiring salespersons, expert should
have used general labor force percentage of black persons for his statistical comparison,
rather than percentage of salespersons who are black. EEOC v Rodriguez (1994, ED Cal)
Footnotes
Footnote 58. The determination of what constitutes the "essence of a business" for
purposes of establishing a BFOQ is discussed at 279.
Footnote 59. EEOC v Tennessee Wildlife Resources Agency (1988, CA6) 859 F2d 24, 48
Footnote 60. Western Air Lines, Inc. v Criswell (1985) 472 US 400, 86 L Ed 2d 321,
279 What is the essence of a business

View Entire Section
The essence of a business for purposes of demonstrating a bona fide occupational
qualification (BFOQ) under the ADEA may pertain to the enterprise generally, or may be
confined to a specific job or occupation. For example, the Seventh Circuit upheld a city's
policy of mandatory retirement of all police officers at age 55 as meeting the criteria of a
BFOQ without considering the specific occupations within the police force as a whole.
61
The Eighth Circuit, faced with a similar question, considered each occupation within a
fire department separately, believing that confining the inquiry to the generic class of
firefighters and allowing the city to retire a fire chief or police chief, who is completely
able to fulfill the duties of one of those positions, simply because he was unable to fulfill
the duties of another position, would be inconsistent with the ADEA's goal of
ability-based employment decisions. 62
Taking a position that partially incorporates the views of both the Seventh and Eighth
Circuits, the First Circuit concludes that although it will focus on genuine and
well-recognized occupations within particular businesses, it will also consider the nature
of the business itself. Thus, the court upheld a state police force's retirement age of 50 as
a BFOQ when applied to a uniformed officer who performed administrative duties,
because this was a particular "assignment" within a paramilitary uniformed force and
because the employee was subject to generally unrestricted reassignment, and was
required to perform strenuous duties in an emergency. 63
Footnotes
Footnote 61. EEOC v Janesville (1980, CA7) 630 F2d 1254, 24 BNA FEP Cas 1294, 24
CCH EPD 31252.
Footnote 62. EEOC v St. Paul (1982, CA8) 671 F2d 1162, 28 BNA FEP Cas 312, 28
CCH EPD 32523.
Footnote 63. Mahoney v Trabucco (1984, CA1) 738 F2d 35, 35 BNA FEP Cas 97, 34
Cas 464, 37 CCH EPD 35278.
280 Establishing a factual basis for an inability to perform

View Entire Section
Under the ADEA, after an employer shows that the claimed bona fide occupational
qualification (BFOQ) is reasonably necessary 64 to the essence of the particular
business, 65 it must demonstrate either that it has a factual basis for believing that all or
substantially all persons excluded by the BFOQ would be unable to perform their job
duties safely or efficiently, or that it is impossible or impracticable to deal with all of the
excluded class on an individual basis. 66
Establishing the first of the two alternatives may involve the results of physical tests.
Thus, factual proof supported a retirement age of 60 for the entire state police force
where physical tests revealed a linear decline in performance as a result of age, especially
between the ages of 45 and 50. 67 However, there was an insufficient factual basis to
sustain a maximum hiring age limit of 29 for the position of police officer, where the
evidence showed that the performance decline corresponded with job tenure rather than
with age, and more than half of the current officers were over 40 years of age and
performing at least competently. 68
Footnotes
Footnote 64. 278.
Footnote 65. 279.
Footnote 66. 281.
Footnote 67. EEOC v Pennsylvania (1984, MD Pa) 596 F Supp 1333, 36 BNA FEP Cas
234, vacated on other grounds (CA3) 768 F2d 514, 39 BNA FEP Cas 591, 37 CCH EPD
35437.
Footnote 68. Hahn v Buffalo (1984, WD NY) 596 F Supp 939, 36 BNA FEP Cas 379, 36
CCH EPD 35031, affd (CA2) 770 F2d 12, 38 BNA FEP Cas 1069, 37 CCH EPD
35440.
281 Showing the inability to make individual distinctions

View Entire Section
Under the ADEA's bona fide occupational qualification (BFOQ) standard, the exception
may be established if it is reasonably necessary to the essence of a business, and the
employer can show that the excluded members of the protected group cannot be
evaluated on an individual basis. 69
To demonstrate that individual testing is impossible or impracticable, an employer must
have more than a rational basis in fact for believing that persons lacking suitable
qualifications cannot be identified on an individualized basis. 70
This will usually require expert witness testimony to that effect. For example, expert
witness testimony has established a BFOQ when:
medical science could not predict an individual's susceptibility at or beyond a certain
age to age-related diseases or infirmities, thereby justifying age limitations for airline
positions essential to flight safety; 71
a large percentage of older police officers have significant but asymptomatic coronary
artery disease, at a level sufficient to preclude the safe and efficient performance of their
duties, thus justifying the use of age as an appropriate "proxy" for a job qualification of
fitness and health; 72
degenerative physical and psychological changes that preclude adequate job
performance cannot be adequately detected by medical examination, and some members
of the affected class possess that trait. 73
Observation: Whether expert testimony is sufficient to establish a BFOQ may

depend on whether the employer has developed and enforced minimum physical fitness
standards for its employees. 74
Footnotes
Footnote 69. 277.
Footnote 71. Williams v Hughes Helicopters, Inc. (1986, CA9) 806 F2d 1387, 42 BNA
FEP Cas 1035, 42 CCH EPD 36768; Iervolino v Delta Air Lines, Inc. (1986, CA11)
796 F2d 1408, 41 BNA FEP Cas 1017, 41 CCH EPD 36602, cert den 479 US 1090, 94
Footnote 72. EEOC v New Jersey (1986, DC NJ) 631 F Supp 1506, 40 BNA FEP Cas
1219, 42 CCH EPD 36734, affd without op (CA3) 815 F2d 694, 43 BNA FEP Cas 653,
43 CCH EPD 36996 and affd without op (CA3) 815 F2d 694, 43 BNA FEP Cas 1647.
Footnote 73. Usery v Tamiami Trail Tours, Inc. (1976, CA5) 531 F2d 224, 12 BNA FEP
Cas 1233, 11 CCH EPD 10916.
Footnote 74. This issue is discussed in the context of safety-related BFOQs at 282.
282 Safety-related BFOQs

View Entire Section
Much of the litigation involving the bona fide occupational qualification (BFOQ)
exception in the ADEA has arisen in the context of employment situations involving the
safety of fellow employees or the general public. Although safety considerations may
justify imposing stringent job qualifications, an employer may not simply assume that
most or even many employees beyond a certain age no longer possess requisite job
qualifications. 75 Rather, the employer must satisfy the BFOQ standard applicable to all
other situations. 76
The EEOC has adopted the same two-part test for establishing a BFOQ defense.
However, where public safety is the objective, the employer must show that the proposed
BFOQ achieves that goal and no other acceptable alternative would better or equally
advance it with less discriminatory impact. 77 The Supreme Court has determined that
this regulation embraces the same criteria as has been used by every court of appeals that
has confronted a BFOQ defense based on safety considerations. 78
Observation: Although the Court says the EEOC regulation conforms to the general
approach to establishment of a safety-related BFOQ defense, the regulation appears to
go beyond the Court's requirement by imposing a more stringent less-discriminatory
alternative test.
State laws that discriminate in employment on the basis of age are unlawful under the
ADEA when they permit discrimination against individuals in the protected statutory age
range. 79
The amount of evidence that an employer must present to justify a BFOQ depends on the
extent of the risk of harm to other employees and to the public of not having an age
requirement. Where the risk of harm runs high, the employer should have substantial
discretion in setting a mandatory age requirement. 80
An issue that frequently arises with regard to safety-related age BFOQ's is whether the
employer must subject employees of all ages to mandatory fitness examinations, or
whether a BFOQ may be justified if only older employees are examined. While an age
BFOQ based on safety concerns associated with good health will be more likely to be
established where an employer subjects employees of all ages to mandatory fitness
examinations, 81 an employer's failure to monitor the fitness of employees has led to
mixed results in cases where an age BFOQ has been asserted for safety reasons. In those
circumstances, cases involving police officers subject to a mandatory retirement age have
resulted in rulings that:
no BFOQ could be demonstrated until minimum fitness standards were created and
enforced on all employees; 82
no BFOQ could be established, especially when officers under the retirement age were
allowed to remain at their same duties despite known health problems; 83
the failure to monitor physical standards, alone, does not destroy a BFOQ based on
fitness. 84
Although physical examinations may lose their predictive value as the examinees grow
older, that proposition must be supported by evidence in the record. The mere fact that
other courts have accepted that rationale in comparable cases is insufficient to satisfy the
employer's burden to prove that a reliable predictor of safe performance in the particular
job at issue does not exist. 85
Observation: Although the Supreme Court has not yet spoken on whether an
employer can establish a safety-related BFOQ without minimum fitness standards, and
the courts of appeals are divided on this question, these standards, if applied uniformly
to all positions, certainly should give an employer more than a rational basis for
believing that individual testing of employees is impossible or impracticable. 86
Footnotes
Cas 1233, 11 CCH EPD 10916.
The legality of safety based BFOQ's under the ADEA for the occupations of airplane
pilots and flight engineers, in the context of the FAA's mandatory retirement rule for
pilots age 60 and over, is discussed 1047 and 1048.
As to the generally applicable BFOQ standard, see 277.
Footnote 79. EEOC v County of Los Angeles (1982, CD Cal) 531 F Supp 122, 28 BNA
FEP Cas 1067, 29 CCH EPD 32808.
As to the protected statutory age range under the ADEA, see 168.
Cas 1233, 11 CCH EPD 10916.
Footnote 81. EEOC v New Jersey (1986, DC NJ) 631 F Supp 1506, 40 BNA FEP Cas
43 CCH EPD 36996 and affd without op (CA3) 815 F2d 694, 43 BNA FEP Cas 1647.
Footnote 82. EEOC v Pennsylvania (1987, CA3) 829 F2d 392, 9 EBC 1328, 44 BNA
Footnote 83. EEOC v Kentucky State Police Dept. (1988, CA6) 860 F2d 665, 10 EBC
631, 109 S Ct 2066, 49 BNA FEP Cas 1640.
Footnote 84. EEOC v East Providence (1986, CA1) 798 F2d 524, 41 BNA FEP Cas 906,
41 CCH EPD 36494; EEOC v Mississippi State Tax Comm. (1989, CA5) 873 F2d 97,
Footnote 85. Tullis v Lear School, Inc. (1989, CA11) 874 F2d 1489, 50 BNA FEP Cas 1,
50 CCH EPD 39078.
Footnote 86. As to the need for a showing that individual testing is impossible or
impractical, see 281.
c. Other Characterictics [283-286]
283 Pregnancy
View Entire Section

Since pregnancy discrimination is barred by Title VII's ban on sex discrimination
prohibitions 87 a bona fide occupational qualification (BFOQ) exception may be
applied to exclude pregnant women in appropriate situations. Such cases usually arise
when an employer seeks to preclude the selection of pregnant unmarried women, and are
discussed in the context of personal morality job requirements at 421.
Whether an employer's fetal protection policy qualifies as a BFOQ permitting sex
discrimination against women who are pregnant or capable of becoming pregnant is
discussed, in the context of health and physical fitness job requirements, elsewhere. 88
Footnotes
Footnote 87. 147.
Footnote 88. 451.
284 Race
View Entire Section
Title VII's bona fide occupational qualification (BFOQ) exception 89 does not expressly
apply to claims of race discrimination. The absence of any mention of race
discrimination demonstrates the Congressional intent to exclude race from the scope of
the exception. 90
State aspects: Some state job discrimination laws contain BFOQ exceptions which,
unlike Title VII's, are not limited to religion, national origin, and sex, but which are
applicable to not only race or color discrimination but also a variety of other types of
prohibited discrimination. 91
Footnotes
Footnote 89. 270.
Footnote 90. Miller v Texas State Bd. of Barber Examiners (1980, CA5) 615 F2d 650, 22
Footnote 91. For discussion of state job discrimination laws containing provisions
regarding bona fide occupational qualifications, see Employment Coordinator EP- 14,
140 et seq.
285 Religion
View Entire Section
Go to Supplement
While Title VII's bona fide occupational qualification exception applies to claims of
religious discrimination, 92 the EEOC has not stated explicitly that the exception is to
be narrowly construed for religious claims, as it has with respect to claims based on sex
and national origin. 93
Observation: Even absent specific regulatory authority, it is safe to assume that the
EEOC will apply the BFOQ exception as narrowly to religious discrimination claims
as it does to national origin or sex discrimination claims, especially when the position
involves the performance of religious duties.
Religious BFOQs cannot be established where religious affiliation is a matter of
secondary importance to the job duties. For example, being Protestant was not a religious
BFOQ for a job as a prison chaplain since the duties involved administering a total
religious program for inmates of all denominations, and did not require the person to
preside over any services. 94 However, a university with Jesuit traditions successfully
invoked a BFOQ requiring full time tenure-track teaching positions in its Department of
Philosophy to be filled only by Jesuits. The exception was properly invoked to maintain
a "Jesuit presence" in the school and in designated areas of teaching done by competent
Jesuit philosophers. 95
285 ----Religion [SUPPLEMENT]
Case authorities:
Female who applied to become Roman Catholic chaplain at hospitals operated by
Veterans Administration, and who was rejected on ground that VA's guidelines required
that she be ordained member of clergy, has standing to bring action under Title VII which
seeks abolition of ordination requirement. Murphy v Derwinski (1993, CA10 Colo) 990
F2d 540, 61 BNA FEP Cas 764.
Footnotes
Footnote 93. 270.
Footnote 94. Rasul v District of Columbia (1988, DC Dist Col) 680 F Supp 436, 46 BNA

Footnote 95. Pime v Loyola University of Chicago (1984, ND Ill) 585 F Supp 435, 34
1, 41 CCH EPD 36567.
Title VII's exemption from coverage for certain religious institutions is discussed at 39.
The permissibility under Title VII of hiring only adherents of a particular religion is
discussed at 294.
286 National origin

View Entire Section
National origin has been claimed as a bona fide occupational qualification (BFOQ) only
on rare occasions. In a case involving a U.S. subsidiary of a Japanese company that
allegedly preferred male Japanese nationals, the BFOQ exception considered was in the
context of the unique requirements of international trade by evaluating the employees':
language skills and cultural background;
knowledge of the national business environment and business practices;
familiarity with the parent company;
acceptability to trading partners of customers. 96
Caution: This case is of limited guidance in evaluating the acceptability of national

origin as a BFOQ since it arose in the context of international trade. An employer
operating outside of that context may not be entitled to have customer preference
evaluated in asserting a BFOQ based on national origin, especially if the national
origin BFOQ is construed in conformity with sex-based BFOQs. 97
Footnotes
Footnote 96. Avigliano v Sumitomo Shoji America, Inc. (1981, CA2) 638 F2d 552, 24
BNA FEP Cas 1220, 24 CCH EPD 31460, vacated on other grounds of 457 US 176,
Footnote 97. As to the effect of customer preference on sex as a BFOQ see 273.
C. Performance and Other Exceptions Related to Job Qualifications [287-290]
Research References
42 USCS 2000e-2
Modjeska, Employment Discrimination Law 2d, 1:14
287 Generally
View Entire Section
Title VII, the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA)
and several state job discrimination statutes 98 create exceptions that pertain to an
applicant or employee's lack of general or specific qualifications to do particular jobs, or
their inability to perform a job when given the opportunity to do so.
These types of exceptions should be distinguished from the bona fide occupational
qualification exception (BFOQ), which precludes members of particular protected groups
from consideration from specified employment situations. 99
Footnotes
Footnote 98. For discussion of state job discrimination statutes concerning qualification
or ability to perform a job, see Employment Coordinator EP-14,240 et seq.
Footnote 99. As to the bona fide occupational qualification exception, see 269 et seq.
288 National security exception

View Entire Section
Notwithstanding any other provision of Title VII, it is not an unlawful employment
practice for an employer to fail or refuse to hire and employ, or to discharge, or for an
employment agency or labor organization to fail or refuse to refer any individual, if:
the job in question, or access to any location in which the job duties are performed, is
subject to any national security requirement imposed under any federal statute or
executive order; and
the applicant or employee does not meet or has ceased to fulfill that requirement. 1
The burden of proving the security clearance exception is on the employer. However,
since agency security clearance decisions are discretionary, the EEOC is precluded from
reviewing the substance of such decisions as well as the validity of security requirements
themselves, as long as they are required by a federal statute or Executive Order.
Nevertheless, the EEOC is not precluded from determining whether the grant, denial, or
revocation of security clearances has been conducted in a discriminatory manner, or
whether the position in question is subject to the particular security requirements. 2
Footnotes
Footnote 1. 42 USCS 2000e-2(g).
Footnote 2. EEOC Policy Statement No. N-915-041, 5/1/89.
289 Merit system exception

View Entire Section
practice for an employer to apply different terms, conditions, or privileges of
employment pursuant to a bona fide merit system, so long as such differences are not the
result of an intention to discriminate because of race, color, religion, sex, or national
origin. 3
However, even absent a demonstration of discriminatory intent, a merit system may not
be bona fide if, using a disparate impact analysis, 4 the system has a disproportionate
effect on minorities. The merit system exception was not meant to provide a major
exception to the requirement that employment selection systems be free of
discrimination. Thus, the exception is inapplicable to employee selection systems that
involve the use of discriminatory pre-employment tests to determine employment
eligibility, 5 or hiring practices that rank applicants according to their performance on
discriminatory examinations. 6
Footnotes
Footnote 5. Harrison v Lewis (1983, DC Dist Col) 559 F Supp 943, 40 BNA FEP Cas
181.
(1980, CA2) 633 F2d 232, 23 BNA FEP Cas 677, 23 CCH EPD 31153, 6 Fed Rules
Evid Serv 724, affd 463 US 582, 77 L Ed 2d 866, 103 S Ct 3221, 32 BNA FEP Cas
250, 32 CCH EPD 33695 and cert den 463 US 1228, 77 L Ed 2d 1410, 103 S Ct
290 Using professionally developed ability tests

View Entire Section
Basing an employment decision on the results of a professionally developed ability test is
acceptable under Title VII so long as the test, its administration, or an action taken based
on its results is not designed, intended or used to discriminate because of race, color,
religion, sex or national origin. 7
Footnotes
Ability testing under Title VII is discussed under the topic of employee selection
procedures at 316 et seq.
D. Nondiscriminatory Preferences and Conduct [291- 296]
Research References
20 USCS 1687; 42 USCS 2000e-1, 2000e-2, 2000e-11, 2000e-11,
29 CFR 1630.16; 1 CFR 60-1.5
ALR Digests, Civil Rights 39
291 Generally
View Entire Section
Go to Supplement
In addition to exceptions to antidiscrimination laws for actions based on business
necessity, 8 a BFOQ 9 or other considerations related to job performance or
qualifications, 10 Title VII and various state job discrimination statutes 11 recognize
certain other preferences or conduct as permissible that might otherwise be challenged as
discriminatory.
Excluded from this discussion are exceptions that pertain solely to one kind of
discrimination, such as the Equal Pay Act's exception for a "factor other than sex," 12
which is discussed in the context of compensation, and the Age Discrimination in
Employment Act's exception for a "reasonable factor other than age," 13 which is
discussed under the topic of age discrimination.
Exceptions in federal job discrimination laws which pertain to the operation of bona fide
seniority systems or employee benefit plans are discussed at 706 et seq.
Exceptions exclusively applicable to labor organizations, 14 employment agencies, and
other entities 15 besides employers are also discussed elsewhere.
Case authorities:
ADEA plaintiff need not necessarily respond to defendant's non-discriminatory reason
for taking adverse action if (but only if) plaintiff anticipatorily demonstrated in his or her
prima facie case that reason was pretext. Moore v Eli Lilly & Co. (1993, CA5 Tex) 990
F2d 812, 61 BNA FEP Cas 1445, 61 CCH EPD 42241, reh, en banc, den (CA5) 1993
US App LEXIS 13111.
Employee's 1981 action is dismissed, where employee was not offered incentive
bonuses, and was fired when employer, which was about to incur earnings loss because
of expiration of lucrative patent, restructured department to do work with fewer people,
and fired employee rather than her colleague because employee was less experienced,
because employer offered legitimate non-discriminatory reasons for firing and bonus
policies, including fact that black female employee and white male employee, with same
experience, were treated same way in bonus program, and employee failed to show that
reasons were pretextual. Moore v Nutrasweet Co. (1993, ND Ill) 836 F Supp 1387.
Evidence failed to support jury verdict finding that new head of state public defender
program discriminated against white males in reorganizing department, where
resignations of five existing county managers (due to change in policy that had allowed
private-practice moonlighting) and expansion of system created seven openings at
county-manager level, reorganized system had four white women and two black men
among 22 county managers. Wachstein v Slocum (1993, NJ Super) 625 A2d 527, 62
CCH EPD 42603.
Footnotes

Footnote 11. For discussion of state job discrimination statutes in this context, see
Footnote 12. 736.
292 Veterans' preference

View Entire Section
Go to Supplement
Title VII explicitly states that nothing in the statute may be construed to repeal or modify
any federal, state, territorial, or local law creating special rights or preferences for
veterans. 16
The EEOC takes administrative notice that the granting of veterans' preferences by
employers have historically operated to the disadvantage of women, and takes the
position that such a policy has a disparate impact 17 on women. Thus, a voluntary
exercise of veterans' preference will constitute unlawful sex discrimination unless it is
supported by legitimate business reasons. Even if the veteran's preference is statutorily
authorized, the EEOC will find such preferences unlawful under Title VII if they are
unequally provided based on a prohibited factor, or if they are used as a pretext for
unlawful discrimination. 18
292 ----Veterans' preference [SUPPLEMENT]
Practice Aids: State denial of credit for military service: A supremacy clause conflict,
49 J Mo B 103 (1993).
Footnotes
Footnote 17. As to disparate impact, generally, see 2707 et seq.
Footnote 18. EEOC Policy Statement No. N-915.056.
293 Employees who work in different locations

View Entire Section
practice for an employer to apply different terms, conditions, or privileges of
employment to employees who work in different locations, provided such differences are
not the result of an intention to discriminate because of race, color, religion, sex, or
national origin. 19
The term "employees who work in different locations" is not defined in either Title VII or
EEOC regulations. The Fourth Circuit has ruled that the "different locations" exemption
is largely dependent on the labor market. If labor for each plant is recruited from
different geographical areas, or if one plant requires labor possessing skills different from
labor employed at another plant, obviously the employer could not draw from the same
labor market to staff the plants, and is entitled to apply different standards. However, if
the employer can operate two or more of its plants with employees from the same
geographical area who are unskilled, or who possess the same skills, an applicant for a
job can be assigned to an entry level position in either plant, and these employees
therefore would not fall within the statutory class of "employees who work in different
locations." 20
Observation: Although the exception is worded to disallow differences in terms,

conditions, and privileges of employment that are the result of an intention to
discriminate, it is a reasonable assumption that the courts will apply the disparate
impact method of proof 21 to any claimed exception based on work location, as they
have to the bona fide merit system exception, 22 so that any differences that have a
disproportionate effect on a protected group would still be unlawful.
Footnotes
Footnote 20. Russell v American Tobacco Co. (1975, CA4) 528 F2d 357, 11 BNA FEP
Footnote 21. As to disparate impact, generally, see 2750 et seq.
Footnote 22. 289.
294 Statutory religious preferences

View Entire Section

Go to Supplement
Title VII contains two separate exceptions for religious preferences that are applicable to
religiously affiliated institutions. Under the first exception, religious corporations,
associations, educational institutions or societies may restrict employment to members of
a particular religion to perform work connected with carrying out the activities of such
organizations. 23 This exception has been found not to impermissibly entangle church
and state, but to separate the two more completely by avoiding an inquiry into whether an
organization's activities are in fact religious. It permits a religious-owned, nonprofit
business to restrict employment to church members, even where the jobs are not
specifically religious in nature. 24
It has been held both that the exception applies only to hiring decisions, and does not
permit a religious institutions to provide a fringe benefit on a discriminatory basis, 25
and also to retention decisions based on a belief that an employee's conduct does not
conform to the prescribed religious tenets. 26 Furthermore, the exception only applies to
religious discrimination and does not allow a religious institution to discriminate based
on race, sex, or national origin. 27 Moreover, the exception cannot be used by religious
groups when they are operated for profit. Thus, a closely held for-profit corporation that
did not mention a religious purpose in its articles of incorporation and was founded to
manufacture mining equipment was not a "religious corporation," even if the owners
intended to use corporate profits for religious purposes, especially since the job in
question did not involve the performance of religious rituals. 28 Likewise, the
exception does not apply to positions that are funded substantially by the federal
government, since allowing employers to fill such positions on the basis of religion
would violate the establishment clause of the Constitution by advancing religion. 29
This same exception appears in the Americans with Disabilities Act (ADA), 30 and it is
Congress' intention that it be applied in a manner consistent with Title VII's application
to the employment relationship between a religious organization and those who minister
on its behalf. 31
Illustration: A Mormon organization wishes to hire only Mormons to perform

certain jobs. If a person with a disability applies who is not a Mormon, the organization
may refuse to hire him. However, if two Mormons apply, one with a disability and one
without a disability, the organization may not discriminate against the person with the
disability on the basis of that disability. 32 Furthermore, the ADA allows religious
organizations to require all applicants and employees to conform to the religious tenets
of the organization. 33 However, where a qualified individual satisfies the permissible
religious criteria, a religious entity may not discriminate against that individual on the
basis of his or her disability. 34
Under the second exception, Title VII permits educational institutions that are, in whole
or substantial part, owned, supported, controlled, or managed by a particular religion or
religious corporation, association, or society to hire employees of a particular religion, if
their curriculum is directed toward the propagation of a particular religion. 35 To
qualify for this exception, the educational institution must prove that all or a considerable
amount of its support, control, or management comes from, or is in the hands of, a
religious group. 36 Like the first exception, it is also limited to the religious
discrimination prohibition, and does not permit discrimination on any other basis
outlawed by Title VII. 37
Executive Order 11246 regulations contain an exception identical to the second exception
in Title VII, directed at religiously oriented church-related colleges and universities. 38
The sex discrimination prohibitions for funding recipients under Title IX of the
Education Amendments of 1972 do not apply to the operation of any entity controlled by
a religious organization, if the statute is not consistent with the religious tenets of that
organization. 39
A second religious exception under the ADA permits religious organizations to require
all applicants and employees to conform to the religious tenets of the organization, 40
even if the tenets are not in writing. 41 This exception is modeled after the provision in
Title IX referred to above, and is intended to be interpreted consistently with the
Department of Education regulations issued under Title IX. 42
294 ----Statutory religious preferences [SUPPLEMENT]
Case authorities:
Although 42 USCS 2000e-1 allows religious organizations to discriminate based on
religion, religious employers are not immune from liability for discrimination based on
race, sex or national origin; in order for religious entities' exemption to apply, religious
employer must make its employment decision upon religious basis or criteria. Boyd v
Harding Academy (1995, WD Tenn) 887 F Supp 157, 68 BNA FEP Cas 238.
Free Exercise Clause of First Amendment forbids review of church's procedures when it
makes employment decisions affecting its clergy; thus, district court did not have subject
matter jurisdiction over Title VII action brought by black female against church who
claimed that she was denied promotion from probationary minister to position of elder
due to race and sex discrimination. Young v Northern Ill. Conference of United
Methodist Church (1994, CA7 Ill) 21 F3d 184, 64 BNA FEP Cas 633, 64 CCH EPD
42953.
Footnotes
For a discussion of religious preferences permitted under the First Amendment to the
U.S. Constitution, despite the prohibitions of job discrimination laws, see 295.
Footnote 24. Corporation of the Presiding Bishop of the Church of Jesus Christ of
Latter-Day Saints v Amos (1987) 483 US 327, 97 L Ed 2d 273, 107 S Ct 2862, 44 BNA
LC 34740.
Footnote 26. Little v Wuerl (1991, CA3) 929 F2d 944, 55 BNA FEP Cas 786, 56 CCH
EPD 40671.
Footnote 27. Rayburn v General Conference of Seventh-Day Adventists (1985, CA4) 772
F2d 1164, 38 BNA FEP Cas 1641, 38 CCH EPD 35555, cert den 478 US 1020, 92 L
Footnote 28. EEOC v Townley Engineering & Mfg. Co. (1987, DC Ariz) 675 F Supp
566, 44 BNA FEP Cas 517, 43 CCH EPD 37233, affd in part and revd in part on other
grounds (CA9) 859 F2d 610, 47 BNA FEP Cas 1601, 47 CCH EPD 38249, cert den
38962.
Footnote 29. Dodge v The Salvation Army (1989, SD Miss) 48 CCH EPD 38619.
Footnote 30. 42 USCS 12113(c)(1).
Footnote 33. 42 USCS 12113(c)(2).
Footnote 34. 29 CFR 1630.16(a).
Footnote 36. Pime v Loyola University of Chicago (1984, ND Ill) 585 F Supp 435, 34
1, 41 CCH EPD 36567.
Footnote 37. EEOC v Mississippi College (1980, CA5) 626 F2d 477, 23 BNA FEP Cas
BNA FEP Cas 64, 26 CCH EPD 31901; EEOC v Pacific Press Publishing Asso. (1982,
Footnote 38. 41 CFR 60-1.5(a)(5).
Footnote 40. 42 USCS 12113(c)(2).
295 Constitutional religious preferences
View Entire Section

Even if a religious employer does not qualify for one of the two statutory exceptions in
Title VII, or the exception in Executive Order 11246, which permit certain religious
institutions to grant religious preferences, 43 the free exercise of religious freedom
provided in the First Amendment to the U.S. Constitution may allow such preferences
under certain conditions.
The EEOC acknowledges that despite the discriminatory prohibitions in the EPA and
Title VII, an employer may have a "ministerial exception" under the First Amendment
that would permit it to choose whomever it desires for positions in the clergy or for
positions which function as clergy. 44 The Fourth Circuit has concluded that even in
spite of sex and race discrimination claims under Title VII, the Seventh-Day Adventist
Church was free under the constitution's religious exercise clause to select whomever it
desired for a pastoral position. 45 For the same reasons, the ADEA did not restrict a
church from deciding whom it would allow to preach from its pulpits. 46
Constitutional exceptions to the application of job discrimination prohibitions may arise
not only because of the religious nature of the job at issue, but also because the
enforcement of the statutes could create an excessive entanglement with religion by the
government, which is forbidden by the establishment clause of the First Amendment. For
example, Title VII could not be constitutionally applied to the selection of a chaplin in a
religiously affiliated hospital, since an evaluation of the discrimination claim would
require a determination of whether the candidate met ecclesiastical requirements. 47
Likewise, the ADEA could not apply in matters pertaining to an archdiocese's control of
a religious seminary, since any effort to enforce the Act would unduly entangle the
government in the seminary's religious mission. 48
Footnotes
Footnote 43. 294.
Footnote 45. Rayburn v General Conference of Seventh-Day Adventists (1985, CA4) 772
F2d 1164, 38 BNA FEP Cas 1641, 38 CCH EPD 35555, cert den 478 US 1020, 92 L
Footnote 46. Minker v Baltimore Annual Conference of United Methodist Church (1988,
DC Dist Col) 48 BNA FEP Cas 481, affd (1990) 282 US App DC 314, 894 F2d 1354, 51
Footnote 47. Scharon v St. Luke's Episcopal Presbyterian Hospitals (1990, ED Mo) 52
BNA FEP Cas 1539, affd (1991, CA8) 929 F2d 360, 55 BNA FEP Cas 585, 56 CCH
EPD 40645.
Constitutional freedom of religion defenses to sex discrimination in pay claims brought
under the EPA and wage discrimination claims under Title VII are discussed at 742.
Footnote 48. Cochran v St. Louis Preparatory Seminary (1989, ED Mo) 717 F Supp
1413, 50 BNA FEP Cas 1012.
296 Indian preferences

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Employers on or near an Indian reservation are permitted by Title VII to give preferential
treatment to Indians living on or near that reservation, with respect to any publicly
announced employment practice. 49 The public announcement should be in the same
notice that announces the job opening. 50
Recommendation: Employers attempting to use this exception should publicly

announce the preferential intentions with respect to local Indians in advance of
exercising these preferences. If this is not done, a court may find an "after the fact"
announcement of such a preference to be a pretextual excuse for discrimination
otherwise prohibited by Title VII. 51
However, for the Indian employment preference to be applied, the employee must meet
tribal membership requirements. 52
Observation: This preferential treatment is not limited by the statutory language to

hiring situations, but appears to permit higher pay, greater promotional opportunities,
or any preferential employment treatment that is publicly announced.
The geographic proximity requirement, "on or near a reservation," has been interpreted
broadly to include Indians not assimilated by pueblos or tribes, but who maintain close
ties with reservations in the community. Thus, portal Indians came within the protection
of the exemption, where their place of employment was within eight miles of an Indian
pueblo. 53
Executive Order 11246 permits an identical Indian preference exception to the one
appearing in Title VII for contractors and subcontractors subject to the Order. 54
Footnotes
Footnote 49. 42 USCS 2000e-2(i).
Footnote 50. EEOC Dec. No. 74-26 (1973) CHH EEOC Dec 6398.
Footnote 51. As to proof of pretextual motives, generally, see 2778.
Footnote 52. Mullenberg v U.S. (1988, CA FC)857 F2d 770, 47 CCH EPD 38279.
Footnote 53. Livingston v Ewing (1979, CA10) 601 F2d 1110, 19 BNA FEP Cas 1716,
FEP Cas 1474, 20 CCH EPD 30266.
Footnote 54. 41 CFR 60-1.5(a)(6).
E. Reliance on Administrative Guidance [297-303]
Research References
29 USCS 206, 259, 626; 42 USCS 2000e-4, 2000e-12
29 CFR 1601.31, 1601.33, 1621.4, 1626.18
297 Generally
View Entire Section
Under Title VII, the Age Discrimination in Employment Act (ADEA), the Equal Pay Act
(EPA), and a few state job discrimination statutes, 55 an employer or other respondent
may be relieved of liability or punishment for job discrimination if it undertook the acts
or practices in question in reliance on regulations or opinions issued by an administrative
agency.
The following discussion identifies and describes the provisions of Title VII, the ADEA,
and the EPA that specifically provide exceptions from their discriminatory prohibitions
for the defendant's reliance on administrative guidance contained in an EEOC opinion
letter, regulation, or advisory opinion.
Footnotes
Footnote 55. 1As to reliance on administrative guidance under state job discrimination
statutes, see Employment Coordinator EP-14,500 et seq.
298 Title VII

View Entire Section

Under Title VII, no person can be subject to liability or punishment for committing an
unlawful employment practice if the person pleads and proves that the discriminatory act
or omission was in good faith, in conformity with, and in reliance on any written
interpretation or opinion of the EEOC. This defense is a bar to discrimination suits even
if the EEOC's position is later modified, rescinded, or invalidated by a court. 56
The
Supreme Court has recognized this narrowly defined defense. 57
Thus, in order to
avoid backpay liability, a defendant must show that there was actual reliance on an
EEOC interpretation at the time of the disputed practice and not merely ex post facto
reliance on what may have been an ambiguous decision. 58
Observation: Questions about the Title VII exemption arise frequently in the context
of reliance on the EEOC's guidelines regarding voluntary affirmative action plans. 59
Footnotes
Annotation: What will be deemed a "written interpretation or opinion of the
Commission" which employer can assert as defense under 713(b) of the Equal
Employment Opportunity Act (42 USCS 2000e-12(b)(1)), 54 ALR Fed 868.
Footnote 57. Albermarle Paper Co. v Moody (1975) 422 US 405, 45 L Ed 2d 280, 95 S
Footnote 58. Stryker v Register Publishing Co. (1976, DC Conn) 423 F Supp 476, 14
Footnote 59. As to affirmative action plans generally, see 600 et seq.
299 The ADEA

View Entire Section
The ADEA incorporates the Fair Labor Standards Act (FLSA) provision 60 concerning
reliance on administrative rulings. Consequently, no employer may be subject to liability
under the ADEA if it pleads and proves that the act or omission complained of was in
good faith and in reliance on any official written administrative regulation, order, ruling,
approval, or interpretation, or any administrative practice or enforcement policy with
respect to the class of employers to which it belongs. This defense, if established, is a bar
to the action or proceeding even if, subsequent to the act or omission, the administrative
regulation, order, ruling, approval, interpretation, practice or enforcement policy is
modified, rescinded, or determined by a court to be invalid or of no legal effect. 61 An
employer was not protected by the ADEA exception, however, where it relied on an
unwritten, informal advisory opinion by the Department of Labor. 62

The Reorganization Plan of 1978 transferred enforcement authority over the ADEA from
the Labor Department to the EEOC. 63 Therefore, administrative guidance concerning
potentially unlawful employment practices under the ADEA should be sought from the
EEOC. 64
Footnotes
Footnote 62. Anness v United Steelworkers of America (1983, CA6) 707 F2d 917, 31
Footnote 63. 42 USCS 2000e-4 note.
300 The Equal Pay Act

View Entire Section
The Equal Pay Act (EPA) 65 is part of the Fair Labor Standards Act (FLSA).
Consequently, an employer's good faith reliance on administrative guidance under the
FLSA also provides a complete defense to an EPA action, even if the agency's ruling or
interpretation is modified, rescinded or invalidated. 66 As was true with regard to
enforcement of the ADEA, 67 EPA enforcement responsibilities have been transferred
from the Labor Department to the EEOC via the Reorganization Plan of 1978, thereby
making the EEOC the agency that issues EPA interpretations. 68
In cases decided before the transfer of authority, the good faith defense was unavailable
where an employer introduced a "summary of unpaid wages" that was given to it by a
Labor Department investigator and contained no analysis of the facts or law of the case,
but merely listed the names and periods of employment covered and the amounts of
backpay due. 69 Similarly, because the designated agency for issuing administrative
interpretations under the EPA was the Administrator of the Wage and Hour Division, a
letter from the Regional Director could not absolve the employer of backpay liability. 70
Recommendation: Employers seeking administrative approval of an employment

policy or practice should make certain that what they are requesting is an official
opinion, 71 and should be aware of the appropriate procedures for obtaining it. 72
Footnotes
Footnote 67. 299.
Footnote 68. 42 USCS 2000e-4 note.
Footnote 69. Murphy v Miller Brewing Co. (1969, DC Wis) 307 F Supp 829, 9 BNA FEP
Cas 517, 2 CCH EPD 10076, 61 CCH LC 32274, affd (CA7) 457 F2d 221, 9 BNA
Footnote 70. Hodgson v Square D Co. (1972, CA6) 459 F2d 805, 9 BNA FEP Cas 755, 4
CCH EPD 7803, 68 CCH LC 32677, cert den 409 US 967, 34 L Ed 2d 232, 93 S Ct
293, 9 BNA FEP Cas 1408.
Footnote 71. As to what constitutes an official opinion, see 301.
Footnote 72. 302.
301 What is an opinion letter

View Entire Section
A formal "opinion letter" under Title VII, 73 the EPA, 74 and the ADEA 75 is
limited to: (1) a written document entitled "Opinion Letter" and signed by the EEOC
Legal Counsel on behalf of and as approved by the Commission; (2) a written document
issued during litigation, entitled "Opinion Letter," and signed by the General Counsel; or
(3) matters published and specifically designated as opinion letters in the Federal
Register.
The Fifth Circuit refuses to recognize any defense based on reliance on EEOC documents
that fail to conform precisely to the agency's own regulations concerning what constitutes
an opinion letter. For example, reliance on a letter from the EEOC's Executive Director,
and an oral statement by the EEOC Chairman approving an employment practice, did not
constitute a defense to backpay awards in a Title VII suit brought by the government and
private plaintiffs. 76
However, an employer in the Ninth Circuit was allowed to rely
on a document that did not conform precisely with the EEOC's regulatory definition of an
opinion letter. A letter containing an opinion of the EEOC's Acting General Counsel was
treated by the agency as if it was a formal opinion letter on which the defendant could
rely. 77
Observation: The latter case could have been decided under the equitable estoppel
doctrine. 78
The Fourth Circuit held that a "no reasonable cause" finding issued to an employer by the
EEOC was not a "written interpretation or opinion of the Commission" on which the
employer could rely in defense to a claim of backpay, because the finding was based on
less than the most thorough consideration of potential factual issues. 79
Instead of issuing an opinion letter under the ADEA, the EEOC may provide informal
advice or guidance. However, an informal advice letter does not represent the EEOC's
formal position or commit the EEOC to the views expressed in the letter. Thus, only an
opinion letter constitutes a valid defense to a charge of discrimination based on a practice
sanctioned by the letter. 80 In addition, any opinion letter issued under the EPA, 81 or
the ADEA, 82 to a specific individual has no effect on anyone else.
Footnotes
Footnote 73. 29 CFR 1601.33(a)(b).
Footnote 75. 29 CFR 1626.18(a).
Footnote 76. United Paperworkers & Paperworkers v U.S. (1969, CA5) 416 F2d 980, 1
BNA FEP Cas 875, 71 BNA LRRM 3070, 2 CCH EPD 10047, 2 CCH EPD 10092,
60 CCH LC 9289, cert den 397 US 919, 25 L Ed 2d 100, 90 S Ct 926, 2 BNA FEP
Cas 426, 2 CCH EPD 10177, 62 CCH LC 9406.
Footnote 77. Yott v North American Rockwell Corp. (1977, CD Cal) 428 F Supp 763, 14
870, 20 CCH EPD 30226, cert den 445 US 928, 63 L Ed 2d 761, 100 S Ct 1316. 22
Footnote 78. As to equitable estoppel, generally, see 303.
Footnote 79. Robinson v Lorillard Corp. 1971, CA4) 444 F2d 791, 3 BNA FEP Cas 653,
3 CCH EPD 8267, cert dismd 404 US 1006, 30 L Ed 2d 655, 92 S Ct 573 and cert
dismd 404 US 1007, 30 L Ed 2d 655, 92 S Ct 651.
Footnote 80. 29 CFR 1626.17(c).
Reliance specifically relating to the EEOC's affirmative action guidelines is discussed at
612.
Footnote 82. 29 CFR 1626.18(b).
302 Obtaining an EEOC advisory opinion

View Entire Section
Any interested person may request a written interpretation or opinion from the EEOC as
to the legality of an employment practice under Title VII, 83 the ADEA, 84 or the
Equal Pay Act. 85
Requests for opinion letters from the EEOC should be submitted in writing to the
Chairman, Equal Employment Opportunity Commission, 1801 L Street, N.W.,
Washington, D.C. 20507. 86
All requests must contain a statement of the relevant facts and the names and addresses of
the person making the request and of other interested persons. 87
Title VII requests
must include a statement of the reasons why the interpretation or opinion should be
issued, 88 while Equal Pay Act 89 and ADEA 90 requests must also contain a concise
statement of the issues on which the opinion is requested.
Footnotes
Footnote 83. 29 CFR 1601.31.
Footnote 84. 29 CFR 1626.17(b).
Footnote 86. 29 CFR 1601.32, 29 CFR 1626.17(a), 29 CFR 1621.3(a).
Footnote 87. 29 CFR 1601.32(a), 1601.32(b), 29 CFR 1626.17(a)(2),
1626.17(a)(3), 29 CFR 1621.3(a)(2), 1621.3(a)(3).
Footnote 88. 29 CFR 1601.32(c).
Footnote 89. 29 CFR 1621.3(a)(1).
Footnote 90. 29 CFR 1626.17(a)(1).
303 Equitable estoppel

View Entire Section
In addition to the statutory good faith defenses available under Title VII, the ADEA, and
the EPA 91 an employer may attempt to establish nonstatutory equitable estoppel by
demonstrating: (1) EEOC words, acts, conduct, or acquiescence causing the employer to
believe that its practice satisfies the statute; (2) EEOC willingness or negligence with
regard to such acts, conduct or acquiescence, and; (3) detrimental reliance. Finally,
because estoppel is sought against the government, there must have been some
affirmative misconduct on the EEOC's part. However, reliance on erroneous statements
by EEOC trial counsel is unreasonable, since these statements represent mere advocacy
and not official agency pronouncements directed towards charting a course of future
conduct. 92
Footnotes
Footnote 91. 298-300.
Footnote 92. EEOC v Westinghouse Electric Corp. (1986, ED Pa) 632 F Supp 343, 7
EBC 1318, 40 BNA FEP Cas 643, CCH EPD 36127, affd in part and vacated in part on
other grounds (CA3) 48 BNA FEP Cas 734.
VI. REGULATED EMPLOYER PRACTICES, GENERALLY;

TESTING, EVALUATION AND SELECTION OF JOB APPLICANTS
AND EMPLOYEES [304-700]
A. Overview of Employer Liability [304-315]
Research References
26 USCS 501; 29 USCS 623; 42 USCS 2000e-2
29 CFR Part 1607
Employment Coordinator EP-10,601 et seq., EP-12,401 et seq., EP-18,055,
EP-20,261 et seq.
304 Generally
View Entire Section
Go to Supplement
Employers' policies and practices with respect to job applicants and employees are
regulated and controlled by a complex web of federal and state job discrimination and
employment practices laws.
Job discrimination by employers on the basis of race, color, religion, sex, national origin,
age, handicap, and other factors is prohibited with respect to hiring, compensation, and
other terms, conditions, and privileges of employment, and discharge by virtually every
federal and state 93 job discrimination and fair employment practices statute, including:
Title VII of the Civil Rights Act of 1964; 94
the Age Discrimination in Employment Act; 95
the Equal Pay Act; 96
the Americans with Disabilities Act; 97
the post-Civil War federal Civil Rights Acts; 98
federal laws outlawing discrimination by federal contractors and on federally assisted
programs; 99
the National Apprenticeship Act of 1937; 1
Observation: The various statutes have very specific requirements as to who is an

"employer." A particular employing entity must be shown to meet these requirements
before liability can be imposed. 2
Practice Aids: Measuring hiring discrimination, 44 Lab LJ 387 (1993).
Civil Rights Act of 1991: race to the finish civil rights, quotas, and disparate impact in
1991, 45 Rutgers LR 1043 (1993).
Footnotes
Footnote 93.
State Aspects Most state employment discrimination laws regulate the hiring of
employees. For discussion of comprehensive state fair employment statutes, see
Employment Coordinator EP-10,601 et seq. As to state statutes separately treating
age discrimination in employment, see Employment Coordinator EP-12,401 et seq.
For discussion of state statutes separately treating the issue of equal pay, see
Employment Coordinator EP-20,261 et seq. As to state common-law actions
against employers for tort or breach of contract, see Employment Coordinator
EP-18,055.
Footnote 94. 305.
Footnote 95. 306.
Footnote 96. 307.

Footnote 2. These requirements are discussed at 39 et seq.
305 Title VII liability

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With certain exceptions, 3 Title VII makes it unlawful for an employer to:
not hire, 4 discharge, 5 or otherwise discriminate against any individual regarding
his compensation 6 or other terms, conditions, or privileges of employment 7 if action
is taken because of his race, color, religion, sex, or national origin; 8
limit, segregate, or classify employees or applicants in any way that deprives or tends to
deprive any individual of employment opportunities or otherwise adversely affect his
status as an employee, because of race, color, religion, sex, or national origin; 9 use an
employment practice that causes a disparate impact on the basis of race, color, religion,
sex,, or national origin, that is not shown to be job related for the position in question and
consistent with business necessity; 10
discriminate against any individual because of race, color, religion, sex, or national
origin in admission to or employment in any apprenticeship or other training program; 11
discriminate against any employee or applicant because he or she has opposed an
unlawful employment practice or participated in any investigation, proceeding, or hearing
under Title VII; 12
initiate printed or published employment notices or advertisements indicating any
preference, limitation, specification, or discrimination based on race, color, religion, sex,
or national origin. 13
305 ----Title VII liability [SUPPLEMENT]
Case authorities:
Provision in collective bargaining agreement which requires arbitration of Title VII
claims is enforceable. Austin v Owens- Brockway Glass Container (1996, CA4 Va) 78
F3d 875, 5 AD Cas 488, 70 BNA FEP Cas 272, 151 BNA LRRM 2673, 67 CCH EPD
43970.
Footnotes
Footnote 4. 316 et seq., 412 et seq., 557 et seq.
Footnote 5. 1056.
Footnote 6. 725.
Footnote 7. 701.
Footnote 10. 42 USCS 2000e- 2(k)(1)(A)(i).
306 ADEA liability

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With certain exceptions, 14 the ADEA makes it unlawful for an employer:
to refuse employment, discharge, or otherwise discriminate against any individual
regarding his compensation 15 or other terms, conditions, or privileges of employment
16 if such action is taken because of the individual's age; 17
to limit, segregate, or classify employees in any way that would deprive or tend to
deprive any individual of employment opportunities or otherwise adversely affect his
status as an employee because of his age; 18
if an employer is discriminatorily paying a younger employee more than he is paying an
older employee within the protected age group, to reduce the wage rate of the higher-paid
employee in order to effect compliance with the Act; 19
to discriminate against any employee or applicant because such person has opposed any
practice made unlawful by the Act or made a charge, testified, or otherwise participated
in any proceeding under the Act; 20
to print or publish, or cause to be printed or published, any employment notice or
advertisement indicating any preference, limitation, specification, or discrimination based
on age. 21
An employer is not required by the ADEA to adopt a policy that will maximize the
number of older persons in its workforce, and an employer is entitled to make its own
policy and business judgments as long as its reasons are not a pretext for discrimination.
22
306 ----ADEA liability [SUPPLEMENT]
Practice Aids: Age discrimination in employment: the over qualified older worker, 44
Lab LJ 440 (1993).
Footnotes
Footnote 16. 701.
Footnote 21. 568.
Footnote 22. Loeb v Textron, Inc. (1979, CA1) 600 F2d 1003.
307 Equal Pay Act liability

View Entire Section
With certain exceptions, the Equal Pay Act prohibits sex discrimination by employers
with respect to wages paid to women and men for equal work requiring equal skill, effort,
and responsibility and performed under similar working conditions. 23 The Act also
prevents employers from reducing the wages of any employee in order to come into
compliance. 24
The Equal Pay Act is discussed in detail elsewhere. 25
Footnotes
Footnote 23. 728.
Footnote 24. 765.
308 Liability for acts of supervisors

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Both the EEOC and the courts recognize that an employer can be held responsible for the
discriminatory acts of its supervisory personnel. 26 Common-law agency principles,
rather than strict liability, apply when determining if an employer is responsible for a
supervisor's actions. Unless a supervisor's actions are within the apparent scope of his
authority, the employer only would be liable for those discriminatory actions about which
the employer knew or should have known but failed to take reasonable remedial steps. 27
Observation: Although the use of common-law principles first arose in a sexual

harassment context, expansion of its use to other areas where a supervisor may not be
acting for the employer is reasonable, so long as employers may not hide behind
professed ignorance of a supervisor's actions merely to avoid legal responsibility.
Liability will be imputed where the employer:
either overtly or covertly, authorizes, acquiesces in, or ratifies a supervisor's conduct; 28
holds a supervisor out as having authority to perform particular acts (even if he or she
does not in fact have such authority); 29
fails to investigate complaints of discriminatory conduct by supervisors; 30
fails to adequately monitor or investigate a supervisor's conduct affecting equal
employment opportunity. 31
However, a supervisor's unauthorized conduct will not be imputed to the employer if it
promptly undertakes measures calculated to remedy the discriminatory condition. 32
308 ----Liability for acts of supervisors [SUPPLEMENT]
Practice Aids: Personal liability for violations of employment discrimination laws: A
split in the circuits, 21 Emp Rel LJ 4:109 (1996).

Case authorities:
Former female employees' Title VII (42 USCS 2000e et seq.) sexual harassment claims
against employer's vice-president must be dismissed, since 42 USCS 1981a allows for
tort-style damages but also contains limitations directly tying possible monetary awards
to size of employer, and neither plain language, broad intent, nor legislative history of
section provides substantial support for changing prior rule precluding individual
liability. Hudson v Soft Sheen Prods. (1995, ND Ill) 873 F Supp 132, 68 BNA FEP Cas
21.
Although term "employer" is defined to include any agent of employer, individual
liability cannot be imposed on supervisory individual as agent of employer, and employer
stands answerable for alleged discriminatory acts committed by supervisory individual
whom it employed. Vodde v Indiana Mich. Power Co. (1994, ND Ind) 852 F Supp 676,
6 ADD 807, 3 AD Cas 1232, 65 BNA FEP Cas 1783.
Footnotes
Footnote 26. Third CircuitCroker v Boeing Co. (Vertol Div.) (1977, ED Pa) 437 F
BNA FEP Cas 1569, 27 CCH EPD 32160, 32 FR Serv 2d 990.
Fourth CircuitFriend v Leidinger (1977, DC Va) 446 F Supp 361, 18 BNA FEP Cas
EPD 8704.
Sixth CircuitMunford v James T. Barnes & Co. (1977, DC Mich) 441 F Supp 459, 17
Dist Col CircuitBarnes v Costle (1977) 183 App DC 90, 561 F2d 983, 15 BNA FEP
Cas 345, 14 CCH EPD 7755, 46 ALR Fed 198.
6216.
Footnote 27. North v Madison Area Asso. for Retarded Citizens-Developmental Centers
Corp. (1988, CA7) 844 F2d 401, 46 BNA FEP Cas 943, 46 CCH EPD 37930.
Footnote 28. Friend v Leidinger (1977, DC Va) 446 F Supp 361, 18 BNA FEP Cas 1030,
17 CCH EPD 8392, affd (CA4) 588 F2d 61, 18 BNA FEP Cas 1052, 18 CCH EPD
8704.
21 CCH EPD 30457.
Footnote 30. Munford v James T. Barnes & Co. (1977, DC Mich) 441 F Supp 459, 17
Footnote 31. Lucero v Beth Israel Hospital & Geriatric Center (1979, DC Colo) 479 F
Footnote 32. Barnes v Costle (1977) 183 App DC 90, 561 F2d 983, 15 BNA FEP Cas
345, 14 CCH EPD 7755, 46 ALR Fed 198; EEOC Decision No. 70-326 (1969) CCH
EEOC Dec 6079; EEOC Decision No. 70-432 (1970) 2 BNA FEP Cas 460, CCH
EEOC Dec 6130.
The question of imputed liability for on-the-job harassment by supervisors is more fully
explored in 973 et seq.
309 Recommendations: how to prevent discrimination by supervisors

View Entire Section
A company's best intentions may be effectively thwarted by its own employees. Most
commonly, management's nondiscrimination policies break down at the supervisory
level, particularly among lower-level supervisors. The employer will not be protected in
an age discrimination suit if its defense is that it did not know what its supervisors were
doing. Here are some ways to be sure that company policies are not being undercut:
do not allow supervisors to maintain dual standards of discipline;
do not allow supervisors to pass over members of protected groups automatically when
making recommendations for training or promotion;
do not allow supervisors or the personnel department to maintain two or three different
job descriptions for jobs that are essentially the same, because this ruse can be used to
discriminate against protected workers;
be sure that protected workers are not excluded from temporary openings on which they
could gain experience for possible promotion later;
most importantly, be sure that supervisors are fully aware of the serious consequences
their actions may have.
310 Liability for acts of union

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Employers may be held liable by aggrieved workers where the employers knowingly
accept discriminatory job referrals from a union. 33

310 ----Liability for acts of union [SUPPLEMENT]
Case authorities:
International union can be held liable under agency theory for discriminatory acts of local
union which violate Title VII. Alexander v Local 496, Laborers Int'l Union (1994, ND
Ohio) 64 BNA FEP Cas 1023.
Footnotes
Footnote 33. Jones v International Union of Operating Engineers (1981, SD Ill) 524 F
311 Use of employment agency does not lessen EEO responsibilities

View Entire Section
The use of an employment agency does not relieve an employer of its responsibilities
under federal law to provide equal employment opportunity. 34
Footnotes
312 Liability for suppliers' actions

View Entire Section
An employer cannot avoid liability for discrimination based on the involvement or
noncooperation of its suppliers. For example, an employer that has a discriminatory
fringe benefit plan cannot avoid liability by claiming that a third party supplier did not
offer a nondiscriminatory version of the plan. The employer must provide the benefit on
a nondiscriminatory basis or else not provide it at all. 35
Footnotes
313 Liability for outside advisor's actions

View Entire Section
An employer cannot avoid liability for discrimination by arguing that an outside advisor
was at fault. For example, an employer that had a discriminatory promotion procedure
could not avoid liability by claiming that it delegated the development of part of the
procedure to an outside agency. Title VII holds an employer accountable for its adoption
of discriminatory practices. 36
Footnotes
Footnote 36. Powers v Alabama Dept. of Education (1988, CA11) 854 F2d 1285, 48
314 Loss of tax-exempt status

View Entire Section
An employer that would otherwise enjoy certain tax benefits, such as an exemption from
federal income tax under 501(c)(3) of the Internal Revenue Code, 37 may be denied
those benefits in the event that it is found to have engaged in forms of job discrimination
prohibited to public employers under the Constitution. 38
The Supreme Court has
agreed with the IRS that granting tax exempt status to a racially discriminatory private
educational entity is incompatible with the concepts underlying tax exemption. 39
Footnotes
Footnote 38. Green v Connally (1971, DC Dist Col) 330 F Supp 1150, affd 404 US 997,
30 L Ed 2d 550, 92 S Ct 564; Rev Rul 71-447, CB 1971-2, p 230.
Footnote 39. Bob Jones University v United States (1983) 461 US 574, 76 L Ed 2d 157,
103 S Ct 2017, 83-1 USTC 9366.
315 Liability insurance

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Go to Supplement
Employers may insulate themselves somewhat from job discrimination liability by
obtaining insurance to pay off money judgments. It has been held that insurance written
to cover liability under Title VII did not undermine the public policy that favors equal
treatment of all persons. 40
In addition to indemnification for potential losses, an employer can often rely on the
insurer to defend it at trial. Even if the discrimination claim is not covered by the policy,
but other causes of action joined in the complaint are, the carrier may defend all charges
in the case. 41
Observation: Insurance coverage works to the employee's advantage as well as the

employer's, since it provides the employee with another "deep pocket" from which
recovery may be realized.
Employers and employees should be aware that many liability policies exclude from their
coverage injuries caused intentionally by the insured. Furthermore, public policy in some
states does not permit insurance against intentional injury. 42 Under Title VII, one
court held that an insurance carrier had an obligation to defend an employer against a sex
discrimination class action suit based on a disparate impact theory, since it was not a
violation of public policy to insure against unintentional employment discrimination. 43
315 ----Liability insurance [SUPPLEMENT]
Practice Aids: Insurance coverage for wrongful employment practices claims under
various liability policies, 49 Bus Law 689 (1994).
Liability coverage for employment and housing discrimination: employers and property
owners can no longer shift the risk, 43 Fed Ins & Corp Couns Q 385 (1993).
Insurance coverage for employment-related claims, 28 Tort & Ins LJ 778 (1993).
Footnotes
Footnote 40. Union Camp Corp. v Continental Casualty Co. (1978, SD Ga) 452 F Supp
565.
Footnote 41. As to a liability insurer's duty to defend, generally, see 44 Am Jur 2d,
Insurance 1405 et seq.
Footnote 42. 43 Am Jur 2d, Insurance 708.

Footnote 43. Solo Cup Co. v Federal Ins. Co. (1980, CA7) 619 F2d 1178, 22 BNA FEP
B. Selection, Screening, and Evaluation Practices [316- 556]
Research References
5 USCS 5550, 7202, 7204; 11 USCS 525; 15 USCS 1674; 29 USCS 50, 706;
42 USCS 1981, 2000e, 2000e-2, 2000e-12, 12111, 12112, 12113, 12114, 12210
P.L. 102-166 316.
P.L. 102-166 105, 106 (Civil Rights Act of 1991)
10 CFR Part 1040; 13 CFR Part 113; 14 CFR Part 1251; 15 CFR Part 8b; 28 CFR
Parts 41, 42; 29 CFR Part 30, 32, 1604, 1605, 1606, 1607, 1625, 1630; 31 CFR
Part 51; 41 CFR Parts 60-3, 60-20, 101-8; 43 CFR Part 117; 45 CFR Parts 84, 1151,
1624; 49 CFR Part 27
43 Fed. Reg. 38290
44 Fed. Reg. 11996
45 Fed. Reg. 29530
56 Fed Reg 35731, 7/26/91
12 Federal Procedural Forms, L Ed, Job Discrimination 45:104, 45:105, 45:109,
45:121
5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Forms 82, 120
2 Am Jur POF2d 237, Racial Discrimination in EmploymentTesting and Education
Requirements; 33 Am Jur POF2d 71, Employer's Discriminatory Appearance Code; 36
Am Jur POF2d 249, Discrimination Against the Obese
45 et seq.
Employment Coordinator EP-12,100 et seq., EP-18,435.5, EP-18,451.50 et seq.,
EP-18,471 et seq., EP-18,485 et seq., EP-18,495 et seq., 18,575 et seq.,
EP-18,911 et seq., EP- 22,851 et seq.
Modjeska, Employment Discrimination Law 2d, 1:7, 1:10, 1:18-1:21, 1:25, 1:30, 1:31,
1:39
1. Tests and Similar Procedures [316-411]
316 Generally
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Go to Supplement
Tests and other devices and practices used to select employees for jobs or advancement
are regulated by federal and state statutes that prohibit discrimination in hiring and terms
and conditions of employment. These include:
the post-Civil War Civil Rights Acts; 45
the Age Discrimination in Employment Act (ADEA); 46
the Americans with Disabilities Act (ADA); 47
Executive Order 11246 (government contractors); 48
Section 504 of the Rehabilitation Act of 1973 (handicap discrimination on federally
assisted programs). 49
The selection of apprentices is also governed by the
National Apprenticeship Act of 1937. 50
An employer is not required to make any particular decision in choosing between
majority or minority persons for a position. The statutes require only that a protected
classification not be a factor. 51 However, if a selection procedure has a
disproportionate impact that operates to exclude protected persons, its use is unlawful
unless the procedure is demonstrably a reasonable measure of job performance, that is,
unless it is job-related or justified by business necessity. 52
This is, of course, the
disparate impact theory of discrimination. 53 The process of demonstrating
job-relatedness for tests and other selection procedures is referred to as "validation." 54
If there is no substantial disproportionate impact on minorities, a test may be used
whether it is valid or invalid, job-related or not, 55 unless it is used unfairly against
particular individuals or groups protected by the statute. This is the disparate treatment
theory of discrimination. 56
Practice Aids: Distinguishing refusal to consider from refusal to hire, 46 Lab LJ 2:106
(1995).
Beyond the company town: Employees' right to privacy regarding off-duty conduct, 158
NJ Law 1:13 (1994).
Workplace privacy, 158 NJ Law 1:7 (1994).
They've got their eyes on you, They can see you, They can hear you; New high-tech tools
let employers watch you while you workand you won't even know, 22 Student Law 6:22
(1994).
Footnotes
Footnote 44. 29 CFR 1607.1B.

Footnote 45. Cooper v Allen (1972, CA5) 467 F2d 836, 4 BNA FEP Cas 1219, 5 CCH
EPD 7952.
Footnote 48. 41 CFR 60-3.1B.
Footnote 49. 28 CFR 41.54 (Justice Department). Other 504 regulations that affect
testing have been issued by the Department of Commerce (15 CFR Part 8b); the
Department of Energy (10 CFR Part 1040); the Department of Health and Human
Services (45 CFR Part 84); the Interior Department (43 CFR Part 117); the Labor
Department (29 CFR Part 32); the Department of Transportation (49 CFR Part 27); the
Department of the Treasury (31 CFR Part 51); the General Services Administration (41
CFR Part 101-8); the National Foundation on the Arts and Humanities (45 CFR Part
1151); the National Aeronautics and Space Administration (14 CFR Part 1251); the
Legal Services Corporation (45 CFR Part 1624); the Small Business Administration (13
CFR Part 113).
Footnote 51. Melanson v Rantoul (1982, DC RI) 536 F Supp 271, 29 CCH EPD 32898.
employmentAllegationDiscriminatory testing requirements. 5A Am Jur Pl & Pr
Forms (Rev), Civil Rights, Form 82.
Allegations in complaintDiscriminatory testing requirements [42 USCS 2000e-2;
FRCP 8(a)]. 12 Federal Procedural Forms, L Ed, Job Discrimination 45:104.
Practice References 2 Am Jur POF2d 237, Racial Discrimination in
EmploymentTesting and Education Requirements.
Violations arising out of employer's testing practices. 21 Am Jur Trials 1,
Footnote 53. As to the disparate impact theory of discrimination, generally, see 2707
et seq.
Footnote 54. As to validation, generally, see 351 et seq.
Footnote 55. Moore v Southwestern Bell Tel. Co. (1979, CA5) 593 F2d 607, 19 BNA
Footnote 56. As to disparate treatment, generally, see 336 and , see 337.
317 The Uniform Guidelines

View Entire Section
Go to Supplement
The Uniform Guidelines on Employee Selection Procedures have been adopted by the
EEOC, the OFCCP, the Office of Personnel Management (formerly the Civil Service
Commission), and the Department of Justice and the Treasury. 57 They are referred to
as the "Uniform Guidelines," the "Testing Guidelines," or simply the "Guidelines"
throughout this work. Citations are to the EEOC's publication of the Guidelines in 29
CFR Part 1607. 58
The Supreme Court has held that as administrative interpretations of the Act by the
enforcing agency, the EEOC's prior version of the Guidelines were entitled to "great
deference." 59
Later cases have reiterated this pronouncement with respect to the
present Uniform Guidelines. 60
Caution: There has been controversy among the courts as to exactly what "great
deference" means. 61
One court has observed that since the Guidelines reflect expert but nonjudicial opinion,
they should be applied in the same way as other expert opinions as long as they are
consistent with the Congressional intent of the legislation. 62
A General Accounting Office Report, issued July 30, 1982, recommended that the EEOC
and the other enforcement agencies review and revise the Guidelines, coordinating their
work on the Guidelines' technical provisions with that of a committee revising American
Psychological Association standards. 63
Observation: It is unlikely that the federal agencies will undertake any review or
revision of the Guidelines' technical standards until the APA revision is complete.
317 ----The Uniform Guidelines [SUPPLEMENT]
Case authorities:
Written job knowledge component of promotional examination was job-related, where
unrefuted evidence showed that every effort had been made to conform test to test
development standards adopted by American Psychological Association, to comply with
EEOC's uniform guidelines, to assure job-relatedness, and to minimize adverse impact.
United Black Firefighters Ass'n v City of Akron (1994, ND Ohio) 66 BNA FEP Cas
1452.
Footnotes
Footnote 58. The Uniform Guidelines, as published by the OFCCP, are found at 41 CFR
Part 60-3.
849, 3 BNA FEP Cas 175, 3 CCH EPD 8137; Albemarle Paper Co. v Moody (1975)
10230.
Footnote 60. Craig v County of Los Angeles (1980, CA9) 626 F2d 659, 24 BNA FEP
Footnote 61. See, for example, 428 et seq. for a discussion of the question in the
context of education and experience requirements.
Footnote 62. Vanguard Justice Soc. v Hughes (1984, DC Md) 592 F Supp 245, 36 BNA
FEP Cas 1494.
Footnote 63. GAO/FDCD-82-26.
318 Administering employment tests under Title VII

View Entire Section
A covered entity that uses employment-related tests in connection with the selection or
referral of applicants or candidates for hire or promotion to adjust the test scores, may not
use different cutoff scores, or otherwise alter the results of such tests, on the basis of race,
color, religion, sex, or national origin under Title VII, 64 as amended by the Civil
Rights Act of 1991. 65
These prohibitions prevent "race-norming," which involves the recomputation of test
scores with reference to race. However, "race banding," which provides a means of
interpreting test scores to determine what constitutes equivalent performance on a
particular test, is still a legitimate selection tool. Thus, a district court denied a request,
based on CRA91, for a stay of a previous order requiring banding. 66
Observation: Since this language applies only to employment-related tests, it has no

bearing on disparate impact cases where the employment-relatedness of tests is at
issue, and therefore not established.
Footnotes
Footnote 64. 42 USCS 2000e-2(1).
Footnote 65. P.L. 102-166 106.
Footnote 66. Officers for Justice v Civil Service Com. (1992, ND Cal) 1992 US Dist
LEXIS 3098.
319 What is a "selection procedure"

View Entire Section
The Guidelines define a selection procedure as any measure, combination of measures, or
procedure used as a basis for an employment decision. 67 "Employment decisions"
include hiring, promotion, membership (e.g., in a labor union), referral, retention, and
selection for training or transfer when it leads to any of the other decisions listed. 68
According to the Guidelines, at least, selection procedures therefore include traditional
paper and pencil tests, performance tests, training programs, probationary periods,
informal or casual interviews, unscored application forms, and physical, educational, and
work experience requirements. 69
The Guidelines apply to each measure in the decision process even if it is not the sole
basis for decision. For example, a two-day progress evaluation that the FDIC used to
assess the potential for promotion of its assistant bank examiners was a selection
procedure subject to the Guidelines, even though the FDIC's panel of regional directors,
which made the promotion decisions, could have ignored the evaluation's results. For the
evaluation to be considered a selection procedure, it was sufficient to show a very strong
statistical link between successful completion of the evaluation and subsequent
promotion. 70
Caution: Although the Guidelines claim to encompass a number of "job

requirements," there has been considerable controversy among the courts regarding
their applicability to particular requirements. 71 The question of applicability is
extremely important to the employer because of the time and expense involved in
conducting a validation study under the Guidelines. 72
Under the Guidelines, recruiting practices, such as procedures designed to attract
members of a particular race, sex, or ethnic group who were previously denied
employment opportunities or are currently underutilized, are not selection procedures.
The Guidelines also are inapplicable to the question of the lawfulness under Title VII of a
seniority system under which an employer applies different terms, conditions, or
privileges of employment, except to the extent that the system uses selection procedures
to determine qualifications or abilities to perform the job. 73
Footnotes
Footnote 67. 29 CFR 1607.16Q.
Footnote 70. Allen v Isaac (1986, ND Ill) 39 BNA FEP Cas 1142, 39 CCH EPD 35989.
Footnote 71. See, for example, 428 et seq., discussing whether the Guidelines apply to
education and experience requirements (relevance to other job requirements is also
discussed in appropriate sections of this work).
Footnote 72. Validation is discussed in 351 et seq.
Footnote 73. 29 CFR 1607.2C.
As to the provisions of Title VII with respect to such seniority systems, generally, see
706.
320 To test or not to test

View Entire Section
The use of proper tests and other selection devices in making important employment
decisions is usually unavoidable for employers subject to job discrimination laws. This is
illustrated by a case in which the employer "eyeballed" a woman applying for a truck
driver job and then discouraged her from applying. The court found sex discrimination,
declaring that giving the applicant a "quick once over" was not a proper test of her
qualifications. 74
However, before instituting a testing procedure, employers should make certain that a test
is actually necessary. Employers should avoid making employment decisions based on
knowledge, skills, or behavior that can be acquired in a brief orientation to the job. 75
Footnotes
Footnote 74. EEOC v Spokane Concrete Products, Inc. (1982, ED Wash) 534 F Supp
Footnote 75. 29 CFR 1607.5F.
321 Using professionally developed tests

View Entire Section

By the express terms of Title VII, it is not unlawful to give or act on the results of a
professionally developed ability test if the test, its administration, or action on its results
is not designed, intended, or used to discriminate. 76
State aspects: A number of the state fair employment practices statutes also provide
exceptions from their discriminatory prohibitions for employment decisions based on
professionally developed ability tests, provided that the tests are not intended to
discriminate on a prohibited basis. 77
However, even a professionally developed test must be shown to be job- related. 78
Under certain circumstances, the Guidelines permit the use of selection procedures to be
supported by validity studies conducted by test publishers or distributors and described in
test manuals. 79 As to when criterion-related validity studies conducted by testing
professionals will be considered acceptable for use by employers, see 375.
Under the Guidelines, the enforcing agencies will take into account the fact that a
thorough professional job analysis was conducted, and careful development and use of a
selection procedure in accordance with professional standards enhance the probability
that the procedure is valid for the job. 80 Under no circumstances, however, will the
general reputation of a test or other selection procedure, its author or its publisher, or
casual reports of its validity be accepted in lieu of proper evidence of validity.
Specifically ruled out are assumptions of validity based on a procedure's name or
descriptive labels, all forms of promotional literature, data bearing on the frequency of a
procedure's usage, testimonial statements and credentials of sellers, users, or consultants,
and other nonempirical or anecdotal accounts of selection outcomes. 81 For example,
testimony by an expert witness that a test is in wide use among similar employers,
together with his conclusory expressions of opinion, has been held insufficient to
establish the validity of the test. 82
While publishers of selection procedures have a professional obligation to provide
evidence of validity that meets generally accepted professional standards, users of
employee selection procedures remain responsible for compliance with the Guidelines.
Accordingly, users seeking to obtain selection procedures from publishers and
distributors should be careful to determine that the information necessary to support
validity has been determined and will be made available. 83
Footnotes
Footnote 77. See Employment Coordinator EP-18,106.

322 Using homemade tests

View Entire Section
The use of "homemade" tests developed by employers is fraught with peril. It has been
held that such tests are not acceptable under Title VII, at least where they discriminate
against protected groups and are not shown to be job- related. 84
Observation: Most homemade tests will be harder to validate than professionally

developed tests, particularly if the question of validation is an afterthought.
An example of the type of trouble an employer can get into is provided by a case in
which the employer selected from its workforce "job knowledge experts" to provide
information on job content and analysis and to prepare the tests that were used. In
holding the employer liable, the court emphasized that the employees were selected in a
casual manner without review by the employer's personnel department to determine
whether they were indeed experts, that many of the tasks identified by the in-house
"experts" as being part of the job were defined in vague, nonoperational terms, and that
independent test designers were not consulted. 85
Recommendation: Although the assistance of psychologists and other testing

professionals may be expensive, such assistance for creating or tailoring tests to the
employer's operation is highly recommended. Not only are professionals likely to
develop tests that are better predictors of job performance than the homemade variety,
but they can develop validation materials and serve as expert witnesses should the tests
ever have to be defended in court.
Observation: Validation studies performed by the test creators are available for
many standardized industrial tests.
Recommendation: If an employer wishes to develop its own test, the safest course is
a practical test composed of representative samples of the work involved in the job.
Footnotes
Footnote 84. United States v N. L. Industries, Inc. (1973, CA8) 479 F2d 354, 5 BNA FEP
Cas 823, 6 BNA FEP Cas 116, 5 CCH EPD 8529, 5 CCH EPD 8628, 17 FR Serv 2d
68; Ste. Marie v Eastern Railroad Asso. (1978, SD NY) 458 F Supp 1147, 18 BNA FEP
Cas 671, 18 CCH EPD 8702.
Cas 1683, 26 CCH EPD 31881.
323 Using tests developed by other employers

View Entire Section
Under certain circumstances, employers may use tests developed by other users, as long
as they are supported by proper validity studies. 86 As to when criterion-related
validity studies conducted by other users will be considered acceptable for use by an
employer, see 379.
Caution: The problems noted in 322 with respect to using "homemade" tests may
be even more acute when using tests developed by other employers, since the second
user has no control over test development.
Footnotes
324 Using experts to administer tests

View Entire Section
According to the EEOC, professional supervision of selection activities is encouraged,
but is not a substitute for documented evidence of validity. 87
Observation: Despite the EEOC's disclaimer, using a psychologist or other testing

expert adds at least a patina of validity to the testing process. Furthermore, as noted in
322, the expert might later be useful as a knowledgable witness if the test ever has to
be defended in court.
Footnotes
Footnote 87. 29 CFR 1607.9B; EEOC Decision No. 68-9-327E (1969) CCH EEOC
Dec 6016, 1 BNA FEP Cas 910.
325 Using employees to administer tests

View Entire Section
Employers commonly use their own employees to administer tests. Even when the test in
question has been validated, this may cause problems. In one case, the facts that
supervisors administered pre-employment tests and that all of the supervisors were white
were held to be factors indicating discrimination against blacks where a
disproportionately large percentage of blacks failed the test. The court noted that
whether a person passed the particular test was discretionary with the supervisors,
pointed out that blacks that passed similar tests at other companies failed the one in
question, and emphasized an instance in which a supervisor deliberately sabotaged an
applicant's attempt to pass. 88
Recommendation: While the use of testing professionals to conduct tests is

preferable, 89 if the employer wishes to cut costs by using its own people, a little
common sense can help to avoid problems later. For example, test administrators
should be personnel specialists trained in, and sensitive to, the employer's EEO
responsibilities. In addition, the amount of discretion given test administrators as to
pass/fail questions should be strictly limited.
Subjectivity in the employment process is more fully discussed elsewhere. 90
Footnotes
Footnote 88. United States v Lee Way Motor Freight, Inc. (1979, CA10) 625 F2d 918, 20
Footnote 89. 324.
326 Testing for future jobs
View Entire Section

As indicated in the Supreme Court's Albemarle decision, 91 a job applicant may be
tested for a job above entry level, to which he will not be immediately assigned, where
the job progression structures are so established that new employees will probably,
within a reasonable period of time and in a great majority of cases, progress to the
higher-level job. Although the Guidelines have adopted this position, they do not permit
such testing where the job progression is not so automatic or where the time span for
advancement is such that the higher-level jobs or the employees' potential may be
expected to change in significant ways. 92
A "reasonable period of time" varies for different jobs and employment situations, but
will seldom be more than five years. Use of selection procedures to evaluate applicants
for a higher level job would not be appropriate if the majority of those employed do not
progress to the higher level job, there is a reason to doubt that the higher level job will
continue to require essentially similar skills during the progression period, or the
selection procedures measure knowledge, skills, or abilities required for advancement
that would be expected to develop principally from the training or experience on the job.
93
Footnotes
Footnote 91. Albemarle Paper Co. v Moody (1975) 422 US 405, 45 L Ed 2d 280, 95 S
Footnote 92. 29 CFR 1607.5I.
Footnote 93. 29 CFR 1607.5I.
327 Periodic retesting

View Entire Section
The Guidelines state that users of selection procedures should provide a reasonable
opportunity for retesting and reconsideration. Where examinations are administered
periodically with public notice, there is reasonable opportunity, unless persons who have
previously been tested are precluded from retesting. The user may take reasonable steps
to preserve the security of its procedures. 94
Footnotes
Footnote 94. 29 CFR 1607.12.
328 Company-wide use of tests

View Entire Section
There is no requirement under 42 USCS 1981 that an employer use a qualifications test
for hiring in one department merely because it uses such a test for hiring in another. 95
Footnotes
Footnote 95. Members of Bridgeport Housing Authority Police Force v Bridgeport (1981,
329 Scheduling tests around religious days

View Entire Section
According to the EEOC, if an individual cannot take a test or comply with some other
selection procedure because it is scheduled at a time that conflicts with his or her
religious practices, the employer has an obligation to make a reasonable
accommodationfor example, by allowing the individual to take the test at another
timeunless undue hardship would result. 96
The Seventh Circuit has agreed with the EEOC's position, where an entry examination
was scheduled for an applicant's Saturday Sabbath. The court said that the employer's
failure to grant a variance to the plaintiff, or to schedule the exam on another day, would
violate Title VII if the employer failed to show undue hardship. The court declared that
neither of the employer's claimed hardshipsthe threat of litigation by rejected applicants
because exams would not be given to all candidates under the same conditions, and the
cost of administering separate examswas sufficiently supported in the record to justify
summary judgment. 97
Observation: On the second holding, the court noted evidence that the cost of
separate exams would not be unduly burdensome. This holding may conflict with the
Supreme Court's "de minimis" rule in religious accommodation cases. 98
Footnotes
Footnote 97. Minkus v Metropolitan Sanitary Dist. of Greater Chicago ("MSD") (1979,
Footnote 98. 145.
330 Settling a testing case with the EEOC

View Entire Section
Go to Supplement
The minimum remedies acceptable to the EEOC in conciliating a case involving testing
violations of Title VII are:
the elimination of discriminatory tests;
the validation of tests and the submission of validation data to the Commission prior to
the implementation of tests;
the immediate hiring of the charging party and identifiable members of the affected
class;
the immediate promotion of the charging party to the job denied or a comparable job (or
the next available position) acceptable to the charging party;
the elimination of adverse test scores from personnel records;
the extension of an opportunity to the charging party to retake the test;
the discontinuance of unvalidated questions on the employer's application form until
there is a demonstration of their relationship to job performance;
the review, elimination, or revision of nonobjective or non-job- related selection
criteria;
the use of testing facilities that will not discriminate against minorities and women. 99
330 ----Settling a testing case with the EEOC [SUPPLEMENT]
Case authorities:
Public school district does not deny 8-year-old student with disability free appropriate
public education and, therefore, does not violate 504 of Rehabilitation Act (29 USCS
794) or ADA Title II (42 USCS 12131 et seq.), where (1) district has followed
appropriate procedures to evaluate and place student in individualized education
program; and (2) no extraordinary circumstances exist to warrant determination by
agency in dispute, which is subject to available due process hearing procedures, as to

whether district has been able, or will be able, to implement student's program within
district. In re Whitman-Hanson Regional Sch. Dist. (1993, Dept of Education) 4 ADD
399.
Footnotes
331 Judicial remedies for selection procedure violations

View Entire Section
Where an employer has used discriminatory tests or other selection procedures, it may be
ordered to:
cease use of a test until it has been properly validated in accordance with the
Guidelines; 1
conduct new validation studies; 2
offer employment, as vacancies become available, to applicants who have taken a test
and whose scores meet judicially revised standards; 3
offer members of the affected class an opportunity to take a test under judicially revised
standards and give preference to those who pass the test under these conditions; 4
ascertain and publicize job-related, objective qualification criteria; 5
post notices of job openings, identifying the kind of test involved to prevent applicants
from misunderstanding and, therefore, not applying to avoid having to take a
questionable or invalid test; 6
construct a valid promotional selection procedure under the Uniform Guidelines, to
provide class members with an opportunity to be promoted under that procedure as soon
as possible, and, when promoting a class member under this procedure, to include
retroactive backpay, seniority, and benefits as of the date of the first use of the invalid
promotional list created under the unlawful test. 7
Class members who have been refused employment may not be required to undergo
newly validated testing unless employees who have not been discriminated against and
who hold the positions in question are required to pass the same test in order to retain
their positions. 8
Footnotes
Footnote 1. Gilbert v Little Rock (1986, CA8) 799 F2d 1210, 44 BNA FEP Cas 509, 41
38655 and mod (CA8) 867 F2d 1063, 48 BNA FEP Cas 1609, 49 CCH EPD 38654;
Hicks v Crown Zellerbach Corp. (1971, ED La) 321 F Supp 1241, 3 BNA FEP Cas 90, 3
CCH EPD 8094; United States v Jacksonville Terminal Co. (1973, MD Fla) 356 F Supp
177, 6 BNA FEP Cas 850, 6 CCH EPD 8724, enforcement gr (MD Fla) 6 BNA FEP
Cas 856, 6 CCH EPD 8829.
Footnote 2. Rogers v International Paper Co. (1975, CA8) 510 F2d 1340, 10 BNA FEP
Cas 404, 9 CCH EPD 9865, vacated on other grounds 423 US 809, 46 L Ed 2d 29, 96
Footnote 5. United States v Jacksonville Terminal Co. (1973, MD Fla) 356 F Supp 177, 6
BNA FEP Cas 850, 6 CCH EPD 8724, enforcement gr (MD Fla) 6 BNA FEP Cas 856,
6 CCH EPD 8829.
Footnote 6. Scott v Anniston (1985, ND Ala) 40 CCH EPD 36094.
FEP Cas 1494.
Footnote 8. United States v Jacksonville Terminal Co. (1973, MD Fla) 356 F Supp 177, 6
BNA FEP Cas 850, 6 CCH EPD 8724, enforcement gr (MD Fla) 6 BNA FEP Cas 856,
6 CCH EPD 8829.
b. Testing and Selection Procedures Regulated by the ADA [332-335]
332 ADA prohibitions concerning standards, criteria, and methods of

administration
View Entire Section
The Americans with Disabilities Act (ADA) forbids the use of standards, criteria, or
methods of administration that either have the effect of discriminating on the basis of a
disability, 9 or perpetuate discrimination against individuals who are subject to common
administrative control. 10
The Act's prohibitions concerning the use of job qualifications and employment tests 11
contain an exception for standards imposed to avoid a direct threat to health and safety.
12 The law also contains requirements concerning the administration of employment
tests. 13
Specific prohibitions concerning medical examinations, 14 food handlers with
communicable diseases, 15 alcohol and drug abuse policies and testing, 16 and preemployment inquiries 17 are discussed elsewhere.
Footnotes
Footnote 10. 42 USCS 12112(b)(3)(B).
Footnote 11. 333.
Footnote 12. 334.
Footnote 13. 335.
Footnote 15. 449.
333 ADA prohibitions concerning job qualifications and employment tests

View Entire Section
Go to Supplement
The Americans with Disabilities Act (ADA) forbids the use of qualification standards,
employment tests, or other selection criteria that screen out or tend to screen out
individuals with disabilities, unless they are job-related and consistent with business
necessity, 18 and the employer cannot accomplish the same ends by providing the
statutorily required reasonable accommodation. 19
Illustration: An employer interviews two equally qualified candidates, one of whom

is blind, and decides that it would be convenient to have an employee with a driver's
license so he could occasionally run errands by car. Although driving is not essential
to the job, the employer hires the sighted individual for that purpose. This is an
example of a uniformly applied criterion which screens out all disabilities that make it
impossible to obtain a driver's permit, and correspondingly requires the employer to

show that the requirement is both job-related and consistent with business necessity. 20
Qualifications standards" are defined as those personal and professional attributes,
including the skill, experience, education, physical, medical, and safety requirements, and
other requirements established by an employer, for an individual to be eligible for the
position in question. 21 Thus, even a facially neutral qualification standard that has a
discriminatory effect on persons with disabilities may constitute unlawful discrimination
under the specified conditions of the Act. 22 This provision applies to all types of
selection criteria, including safety requirements, vision or hearing requirements, walking
requirements, lifting requirements, and written employment tests. However, it does not
intend to second guess an employer's business judgment, therefore, production standards
will generally not be subject to challenges under this provision. 23 A selection criteria
that screens out an individual with a disability for reasons unrelated to the disability does
not violate the ADA. 24
A qualification standard, test, or other selection criterion device is "job-related" if it is a
legitimate measure or qualification for the specific job for which it is used. A measure of
qualifications for a general class of jobs is not necessarily job-related for a specific job.
25
Illustration: If a specific level of mathematics ability is required for most jobs in a

company, that requirement can be imposed only on jobs which truly require the use of
mathematics, not on jobs such as maintenance staff or forklift operator.
An employer may specify job-related criteria or standards for both essential and marginal
job functions and may hire employees capable of performing all job functions. However,
if an applicant's disability prevents the performance of marginal job functions, employers
must evaluate the applicant on the ability to perform essential job functions, with or
without accommodation. 26
Recommendation: Employers should consider using a two-step evaluation of all

applicants for employment in which consideration is first given to whether applicants
can perform the essential functions of a job, evaluating the ability to perform marginal
functions only if more than one applicant is equally able to perform the essential
functions. This practice will help interviewers and decisionmakers to focus on the
distinction between essential and marginal functions when a candidate with a disability
cannot perform marginal functions.
The concept of "business necessity" has the same meaning as it has under 504 of the
Rehabilitation Act. Thus, selection criteria that exclude individuals with disabilities
because of their disability and do not pertain to an essential function of a job would not
be consistent with "business necessity". Also, The Uniform Guidelines on Employee
Selection Procedures 27 do not apply to either the Rehabilitation Act or the ADA. 28
Although the Uniform Guidelines do not apply to the ADA, the EEOC has issued
technical guidance designed to explain to employers how to establish qualifications
standards and selection criteria that do not discriminate under the ADA, including how to
conduct a job analysis in connection with identification of essential functions of a job for
purposes of the Americans With Disabilities Act, 29 and standards to assure health and
safety in the workplace. 30
A job function may be job-related but not justified by business necessity because it does
not concern an essential function of a job.
Illustration: A driver's license may be job-related for a job if those who hold the job
occasionally run errands by car, although there are other employees who could perform
that function. However, since running of errands is not an essential function, an
employer could not refuse to hire an applicant whose disability prevented obtaining a
driver's license, because requiring a driver's license is not a business necessity. 31
333 ----ADA prohibitions concerning job qualifications and employment tests
[SUPPLEMENT]
Case authorities:
Although undue hardship is affirmative defense to failure to provide reasonable
accommodation, where evidence showed that it would have been reasonable
accommodation to grant employee leave of absence to obtain medical treatment for his
alcoholism, it is no defense that granting such leave in lieu of termination would
undermine company's substance abuse deterrence program, where there was no evidence
that accommodation would have had economic impact on company or disrupted its
operations. Schmidt v Safeway Inc. (1994, DC Or) 864 F Supp 991, 6 ADD 1223, 3 AD
Cas 1141.
Footnotes
Footnote 18. 42 USCS 12112(b)(6).
As to reasonable accommodation under the ADA, see 217 et seq.
Footnote 21. 29 CFR 1630.2(q).
Footnote 24. 56 Fed Reg 35731, 7/26/91.
Employment Opportunity Commission, January 28, 1992, 4.3(1).
Footnote 27. 317.

Footnote 29. 223.
Footnote 30. 334.
334 Qualification standards avoiding a direct threat to health or safety

View Entire Section
"Qualification standards" may include a requirement that the disabled individual not pose
a "direct threat" to the health and safety of other persons in the workplace. 32 A direct
threat is a significant risk to the health or safety of others that cannot be eliminated 33
or reduced 34 by reasonable accommodation. Thus, the risk need not be totally
eliminated by an accommodation in order to fall below the standard of a direct threat, just
reduced to the level at which it no longer poses a significant risk of substantial harm. 35
This qualification standard must apply to all applicants or employees, not just to
individuals with disabilities. 36
The determination that an individual with a disability poses a direct threat must be based
on a reasonable medical judgment that relies on the most current medical knowledge
and/or the best available objective evidence. Factors to be considered in determining
whether an individual would pose a direct threat include: (1) the duration of the risk; (2)
the nature and severity of the potential harm; (3) the likelihood that the potential harm
will occur; and (4) the imminence of the potential harm. 37
The risk that an employee will pose a direct threat to health or safety must not be based
on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes about the
nature and effect of a particular disability or of disabilities in general. Relevant evidence
includes input from the individual, the individual's experience with a disability in
previous similar positions, and opinions of medical doctors, rehabilitation counselors, or
physical therapists with expertise in the disability or direct knowledge of the individual
with the disability.
The employer must identify the specific risk posed by the individual. Therefore, for
individuals with mental or emotional disabilities the employer must identify the specific
behavior that poses the direct threat. 38 For individuals with physical disabilities, the
employer must identify the aspect of the disability that would pose the direct threat.
Generalized fears about risks from the employment environment, such as exacerbation of
the disability caused by stress, cannot be used to disqualify an individual with a
disability.
Illustration: A law firm cannot reject an applicant with a history of disabling mental
illness because of a generalized fear that the stress of attempting to become a partner
would trigger a relapse of the illness. Nor can an employer disqualify an individual
with a disability based on a generalized fear about the risk to such an individual in the
event of an evacuation or other emergency. 39 In addition, the plaintiff is not
required to prove that he poses no risk. 40 Rather, it is the employer's burden to raise
the matter of a direct threat as a defense to an alleged violation. 41
An employer may discharge or refuse to hire an individual who poses a direct threat of
harm to his own health or safety unless a reasonable accommodation would avert the
harm.
Illustration: An employer need not hire an individual disabled by narcolepsy who

frequently loses consciousness for a job whose essential functions include the use of
dangerous equipment, if no accommodation will reduce or eliminate the risk. If it is
not possible to eliminate or reduce the direct threat to health or safety by providing a
reasonable accommodation, an employer may refuse to hire or discharge an employee
who poses such a threat. However, the risk may only be considered when it poses a
significant, that is, a high probability of substantial harm, and may not be considered if
it is only a slightly increased or speculative risk. 42 In ascertaining whether an
individual with a psychiatric disability poses a direct threat, factual evidence of the
person's behavior, such as violent, aggressive, destructive, or threatening behavior,
constitutes evidence of a direct threat. 43
An employer cannot refuse a job to a person with a disability based on speculation that
the person will become unable to perform the job, will cause increased health insurance
or workers' compensation costs, or will have excessive absences. 44
While the ADA does not preempt medical standards or safety requirements under other
federal, state or local laws designed to protect the public health from individuals who
pose a direct threat that cannot e eliminated or reduced by a reasonable accommodation,
it does preempt inconsistent requirements in those laws for safety or security sensitive
positions.
Illustration: If a municipality prohibits individuals with tuberculosis from teaching

school, an individual with dormant tuberculosis may still challenge the ordinance as
inconsistent with the requirements of the ADA and the local law will not provide a
defense to the federal claim. 45 Safety requirements that disproportionately screen
disabled individuals must satisfy the "direct threat" standard in order to show that the
requirement is job-related and a business necessity. 46 The burden is on the employer
to show the relevance of such factors in defending the qualifications standard at issue.
47
State aspects: State statutes prohibiting job discrimination on account of disability

frequently contain exceptions for circumstances in which an applicant's or employee's
disability poses a threat to the safety of himself, co-workers, or the public. 48
Footnotes
Footnote 34. 29 CFR 1630.2(r).
Footnote 35. 56 Fed Reg 35730, 7/26/91.
Footnote 36. 29 CFR Part 1630, Appendix, 1630.2(r).
Footnote 37. 29 CFR 1630.2(r).
Footnote 38. 56 Fed Reg 35731, 7/26/91.
Footnote 40. H Rept No. 101-485, Part 3, 5/15/90, p. 46).
Footnote 41. 56 Fed Reg 35731, 7/26/91.
Footnote 45. 29 CFR Part 1630, Appendix, 1630.1(c).
Footnote 48. Annotations: Handicap as job disqualification under state legislation
forbidding job discrimination on account of handicap, 78 ALR4th 265.
335 ADA requirements for administering employment tests

View Entire Section
The ADA specifically prohibits an employer from failing to select and administer tests in
the most efficient manner, so as to ensure that applicants or employees with sensory,
manual, or speaking skill disabilities will have test results that accurately reflect their
skills, aptitudes, and other factors tested for, instead of results that reflect the disability.
However, such testing may reflect those disabilities if they are the factors the test
purports to measure, 49 )
Illustration: If an employer requires an interview that is job-related and consistent

with business necessity as part of its application process, it would not be able to reject
a hearing impaired applicant solely because he could not be interviewed. 50
An employer may use a test that purports to measure sensory, manual, or speaking skills
when those skills are related to the job. 51
Illustration: An employer may require an applicant with dyslexia to take a written

test for a position in which the ability to read is the skill the test is designed to measure.
Similarly, it may require a test to be completed within established time frames if speed
is the skill being measured. However, in both instances the skill being tested must be
necessary to perform an essential function of the position, and no reasonable
accommodation is available without undue hardship to enable the individual to perform
that function. 52
The intent of this provision is to ensure that qualified individuals with disabilities are not
excluded from job opportunities merely because their disability prevents them from
taking a test or negatively influences the result of a test that is a prerequisite to the job. 53
To that end, an employer may inquire on a test announcement or application form
whether individuals with disabilities will need an accommodation in order to take a
pre-employment test, and may request documentation of that need. 54
If the administration of an employment test denies a disabled individual an equal
opportunity for the job, the employer will be required to provide a reasonable
accommodation only if it knows prior to the test that the individual is disabled and that
the disability impairs sensory, manual or speaking skills.
Illustration: It would be unlawful for an employer to administer a written

employment test to an individual who has informed it ahead of time that he is disabled
with dyslexia. Instead, a reasonable accommodation must be provided such as an
alternative oral examination. Likewise, a written test may need to be substituted for an
oral test for an applicant with a disability that impairs his speaking skills or auditory
abilities. If the disabled individual does not realize that he will need an
accommodation prior to the administration of the test, upon becoming aware of this
need he must inform the employer.
Illustration: When an individual with a disabling visual impairment arrives to take a

written examination he will be unable to read without his specially designed lens
because of a low color contrast between the paper and the ink, he is entitled at that
point to request an accommodation requiring the employer to provide a test with higher
contrast, schedule a retest, or take any other effective measures that would not impose
an undue hardship.
Examples of reasonable accommodations which may be made when an impairment
precludes a disabled individual's equal opportunity for a job, include:
alternative test modes or formats, such as large print or braille, or providing a reader or
sign interpreter;
evaluation of the skill being tested in another manner, such as through an interview,
license requirement, or work experience prerequisite;
providing more than the normal time allowed to complete a test;
insuring that the test site is accessible to individuals with ambulatory impairments. 55
Footnotes
Footnote 49. 42 USCS 12112(b)(7).
Footnote 51. 29 CFR 1630.11.
c. Disparate Treatment [336, 337]
336 An overview
View Entire Section
Although selection procedure cases usually involve disparate impact challenges, 56 they
can also be brought under the disparate treatment theory. According to the Guidelines, a
selection procedure, even if properly validated, cannot be imposed on members of a race,
sex, or ethnic group where other employees or applicants have not been subjected to the
same standard. 57
Situations involving individual disparate treatment in a selection procedure were
established where:
an employer demanded that a black worker complete certain courses as a condition for
promotion to a position in which no similar condition was applied to whites who were
promoted; 58
an employer selected a white applicant over the black plaintiff without making any type
of comparative evaluation of the candidates' respective qualifications; 59
an employer refused to allow a black applicant to be interviewed or file a job
application. 60
However, a plaintiff was not a victim of racial discrimination when an employer refused
to hire him after he failed a job-related test several times, when white candidates were
only given one opportunity to take the test. 61 Also, an employer's use of a test of
temperament that purported to measure an applicant's "vigor" did not violate Title VII,
although the test asked questions that would more likely be answered "yes" by men than
by women. There was no evidence that the test ever presented a woman from being hired
for a commission sales job. 62
In cases involving pattern or practice claims, disparate treatment has been established by
a showing that:
an employer required female employees to take a pre-employment test in order to
transfer into certain departments and classifications, while male transferees were not
required to take the test; 63
an employer imposed a testing requirement on those hired after 1958 as a condition
precedent to promotion or transfer, where white persons hired before that time did not
have to take tests; 64
there was an unexplained gross statistical disparity regarding the small amount of
Hispanics hired by an employer, based on an analysis of applicant flow data. 65
When subjective, rather than objective, criteria are used in hiring employees a court will
scrutinize the basis for the decision more closely. Furthermore, preselection of a
particular candidate constitutes relevant evidence of an employer's motivation. However,
subjective preselection of a particular candidate for reasons other than those prohibited
by Title VII, such as for superior qualifications or even political or family association,
does not violate the statute in a disparate treatment context. 66
Observation: Routine subjective preselections based on "neutral" factors, such as

political ties, could violate Title VII in a disparate impact context. 67 For example, if
the preferred political friends at issue are composed exclusively or predominately of
members of one race or sex, continuous favoritism toward such persons in selection
decisions could be shown to adversely effect those of a different race or sex, although
such proof may be difficult to demonstrate.
The general principles governing disparate treatment cases are more fully discussed
elsewhere. 68
Footnotes
Footnote 56. As to disparate impact challenges, see 338 et seq.
Footnote 57. 29 CFR 1607.11.

Footnote 58. Williams v Owens- Illinois, Inc. (1979, ND Cal) 469 F Supp 70, 25 BNA
FEP Cas 1478, affd in part and revd in part on other grounds (CA9) 665 F2d 918, 27
BNA FEP Cas 1273, 28 CCH EPD 32404, 33 FR Serv 2d 424, mod and reh den (CA9)
28 BNA FEP Cas 1820 and cert den 459 US 971, 74 L Ed 2d 283, 103 S Ct 302, 30
Footnote 59. Eastland v Tennessee Valley Authority (1983, CA11) 704 F2d 613, 31 CCH
EPD 33571, 31 CCH EPD 33571, amd on other grounds, (CA11) 714 F2d 1066, 34
Footnote 60. Nanty v Barrows Co. (1981, CA9) 660 F2d 1327, 27 BNA FEP Cas 410, 27
CCH EPD 32224.
Footnote 61. Tate v Dravo Corp. (1985, WD NC) 623 F Supp 1090, 39 BNA FEP Cas
1544, 39 CCH EPD 35968.
Footnote 62. EEOC v Sears, Roebuck & Co. (1988, CA7) 839 F2d 302, 45 BNA FEP
Cas 1257, 45 CCH EPD 37681.
Dec 6275.
Dec 6233.
Footnote 65. Garza v Deaf Smith County (1984, ND Tex) 604 F Supp 46.
As to the use of applicant flow data in proving discrimination, generally, see 2799.
Footnote 66. Goostree v Tennessee (1986, CA6) 796 F2d 854, 40 CCH EPD 36293.
Footnote 67. As to disparate impact, see 338.
337 Making up for past discrimination

View Entire Section
Go to Supplement
According to the Guidelines, employees or applicants denied equal treatment because of
prior discriminatory selection practices or policies must (at least) be afforded the same
opportunities as there were for other employees or applicants during the period of
discrimination. Thus, persons in the class discriminated against during the
discriminatory period should be allowed the opportunity to qualify under the less
stringent selection procedures previously followed, unless the user demonstrates that
subsequent, more difficult standards are required by business necessity. 69
However, this rule does not prohibit a user who has not previously followed merit
standards from adopting merit standards that are in compliance with the Guidelines.
Also, it does not preclude a user who has previously used invalid or unvalidated selection
procedures from developing and using procedures in accord with the Guidelines. 70
337 ----Making up for past discrimination [SUPPLEMENT]
Practice Aids: Reverse discrimination employment litigation: Defining the limits of
preferential promotion, 46 Lab LJ 3:131 (1995).
Footnotes
Footnote 69. 29 CFR 1607.11.
Footnote 70. 29 CFR 1607.11; Nance v Union Carbide Corp., Consumer Products Div.
(1976, CA4) 540 F2d 718, 13 BNA FEP Cas 231, 13 BNA FEP Cas 1810, 12 CCH EPD
11106, 22 FR Serv 2d 247, vacated on other grounds 431 US 952, 53 L Ed 2d 268, 97
S Ct 2671, 14 BNA FEP Cas 1686, 14 CCH EPD 7580; Hardy v Stumph (1978) 21 Cal
3d 1, 145 Cal Rptr 176, 576 P2d 1342, 17 BNA FEP Cas 468, 16 CCH EPD 8249.
d. Disparate Impact [338-350]
338 Establishing a prima facie case

View Entire Section
The classic disparate impact case involves a challenge to one or more of the employer's
identifiable selection devices or practices. In such cases, plaintiffs complaining about
testing requirements must make a prima facie showing that the examinations have an
unlawful disproportionate impact. 71
In order to make such a showing, the
complaining party or class must show that the procedure selects applicants in a racial,
religious, national origin, or sex pattern significantly different from that of the pool of
applicants. 72
Unlike under Title VII, a testing case under 42 USCS 1981 cannot be proved on a pure
disparate impact theory. Proof of a test's disparate impact is insufficient to make out a
prima facie case under that statute without additional proof of discriminatory purpose in
the use of the test. 73
The general principles governing disparate impact cases are more fully discussed
elsewhere. 74 This division illustrates the specific application of those principles in
cases involving employee selection procedures.
Footnotes
Footnote 71. Jones v New York City Human Resources Administration (1975, DC NY)
391 F Supp 1064, 12 BNA FEP Cas 264, 12 BNA FEP Cas 280, 9 CCH EPD 9905, 9
10664, cert den 429 US 825, 50 L Ed 2d 88, 97 S Ct 80, 13 BNA FEP Cas 963, 12
CCH EPD 11207, reh den 430 US 923, 51 L Ed 2d 602, 97 S Ct 1341, 13 CCH EPD
11538.
Footnote 73. Washington v Davis (1976) 426 US 229, 48 L Ed 2d 597, 96 S Ct 2040,
12 BNA FEP Cas 1415, 11 CCH EPD 10958; General Bldg. Contractors Asso. v
Pennsylvania (1982), 458 US 375 73 L Ed 2d 835, 102 S Ct 3141, 29 BNA FEP Cas
139, 29 CCH EPD 32855; Guardians Asso. of New York City Police Dept., Inc. v Civil
Service Com. (1980, CA2) 633 F2d 232, 23 BNA FEP Cas 677, 23 CCH EPD 31153, 6
Fed Rules Evid Serv 724, affd 463 US 582, 77 L Ed 2d 866, 103 S Ct 3221, 51 USLW
5105, 32 BNA FEP Cas 250, 32 CCH EPD 33695 and cert den 463 US 1228, 77 L Ed
2d 1410, 103 S Ct 3568, 51 USLW 3938, 32 BNA FEP Cas 359, 32 CCH EPD 33698.
339 Challenging the total selection process

View Entire Section
Employees and applicants may challenge an employer's total selection process, including
a process that mixes subjective 75 and objective elements, under either the disparate
treatment or disparate impact method of proving discrimination. As amended by the Civil
Rights Act of 1991, 76 Title VII requires a complaining party to demonstrate that each
particular challenged employment practice causes a disparate impact. However, if the
complaining party can demonstrate that the elements of an entity's decisionmaking
process are incapable of separation for analysis, the decisionmaking process may be
analyzed as one employment practice. 77 Furthermore, when a decisionmaking process
includes practices that are components of the same criterion or test, such as the height
and weight requirements designed to measure strength, 78 the particular practices may
be analyzed as a single employment practice. 79 The amendment supersedes 80 a prior
Supreme Court ruling that complainants using the disparate impact method had to
identify specifically each challenged selection practice's statistically significant adverse

effect on their group's employment opportunities. 81
Footnotes
Footnote 75. As to the use of subjective criteria, see 415 et seq.
Footnote 76. P.L. 102-166 105(a).
Footnote 77. 42 USCS 2000e-2(k)(1)(B)(i).
Footnote 78. As to such requirements, generally, see 458 et seq.
Footnote 79. P.L. 102-166 105(b); Interpretative Memorandum 137 Congressional
Record S 15276, 10/25/91.
Footnote 80. S Rept No. 101-315, 6/8/90, p.6.
Footnote 81. Wards Cove Packing Co. v Atonio (1989) 490 US 642, 109 S Ct 2115,
104 L Ed 2d 733, 49 BNA FEP Cas 1519, 50 CCH EPD 39021.
340 How to obtain evidence of adverse impact

View Entire Section
The use of a test is lawful where there is no evidence that the test has an "adverse impact"
on groups protected by Title VII. 82
The first step in proving the adverse impact of a test on a protected class is to use
interrogatories to determine the purposes for which the tests are used and the way in
which the test scores are utilized. The attorney should then obtain, by means of a notice
to produce, records showing the test scores of all applicants for the position, and
disclosing the race, sex, and national origin of each applicant.
If the employer has not maintained test scores, the plaintiff should take the deposition of
a company personnel executive. He should be asked to explain the effect of the
company's testing program on the protected class involved in the litigation. The attorney
should attempt to obtain an admission that the test scores are a barrier to the hiring of
members of the protected class. This can often be accomplished by asking the witness to
explain why the percentage of whites hired for a given classification is higher than the
percentage of blacks hired.
Discovery procedures are more fully discussed elsewhere. 83
Footnotes
Footnote 82. 29 CFR 1607.16B; EEOC Decision No. 72-0687 (1971), 4 BNA FEP Cas
442, CCH EEOC Dec 6323; EEOC Decision No. 71-1471 (1971) 3 BNA FEP Cas 667,
CCH EEOC Dec 6220.
341 How to prove adverse impact

View Entire Section
Go to Supplement
In employee selection procedure cases, a significant disproportionate impact is normally
shown by comparing the success rates of the actual applicants for the job. 84 The
Supreme Court has endorsed the comparison of success rates where an employer's paper
and pencil test resulted in only a 4% failure rate for whites and a 36% failure rate for
blacks taking the examination. 85 In other illustrative cases, the discriminatory impact
of a test has been shown by evidence that:
black candidates had a mean score 6.7 percentage points lower than white candidates,
and only 54% of blacks (26 of 48) passed the test, while nearly 80% of the white
applicants (206 of 259) passed; 86
96% of white employees were in jobs for which a passing score was required, while
only 13% of all black workers were in such jobs; 87
25% of the whites failed, while 51% of the blacks failed; 88
the test was passed by 31% of the white candidates, 12.5% of the Hispanics, and 7.7%
of the blacks. 89
In order to prove adverse impact, bare statistics often will not be enough. Rather, the
plaintiff will have to support the numbers with other materials demonstrating their
relevance. For example, the challenger must show that the employer's requirement is the
actual cause of the disparate impact in the selection rates. 90 In one case, the necessary
causal link was shown by evidence that it was rare that employees who did not pass a
testing battery were admitted to an apprenticeship program, even though passage of the
battery was not an absolute requirement. 91
Furthermore, the challenger will sometimes have tolay other groundwork in order to
utilize statistics successfully. To do this, the challenger may attempt to aggregate the
results of tests given to different applicants at different times. Courts have come to
different conclusions about whether aggregation is permissible. For example, a plaintiff
was permitted to aggregate the results of a city's written police officer examinations in
consecutive years to show adverse impact against black and Hispanic candidates.
Although the tests were not precisely identical, the differences between them for the
same jobs in the two years were trivial. 92 However, it was held that another plaintiff
should not have been permitted to lump together the post-test acceptance-for-training
rates of black and white firefighter applicants for the years 1972 through 1974. The third
year's test was sufficiently different to require an independent assessment of its impact
and was not sufficiently similar to the prior years' tests to permit aggregation of
acceptance rates. 93 Furthermore, statistics regarding three tests used by an employer for
promotion to three different levels could not be aggregated to show a statistically
significant disproportionate impact on blacks, even though 53% of the questions were
common to all three tests. A study would have had to be done in order to justify
aggregation that would correlate scoring on the common elements with scoring on all
elements of the tests. There was no evidence of any such study, while the defendant had
introduced unrebutted testimony indicating that a comparison of mean scores of blacks
and whites on the tests showed that there was no statistically significant difference. 94
341 ----How to prove adverse impact [SUPPLEMENT]
Case authorities:
Former employee's discrimination claim under 42 USCS 1981 against former employer
is denied summarily, where employee alleged that white employees were offered
reassignment while his request for reassignment was denied, but failed to produce
evidence to contradict results of employer's adverse impact study that indicated that
higher percentage of white employees were laid off than employees in protected class,
because employee failed to present evidence sufficient to create genuine issue of material
fact. Allen v Ethicon (1996, SD Ohio) 919 F Supp 1093.
Footnotes
Footnote 84. Green v Missouri P. R. Co. (1975, CA8) 523 F2d 1290, 10 BNA FEP Cas
1409, 11 BNA FEP Cas 658, 10 CCH EPD 10314, 10 CCH EPD 10384, 33 ALR Fed
248.
Footnote 86. Connecticut v Teal (1982) 457 US 440, 73 L Ed 2d 130, 102 S Ct 2525,
Footnote 87. James v Stockham Valves & Fittings Co. (1977, CA5) 559 F2d 310, 15
BNA FEP Cas 827, 15 CCH EPD 7842, cert den 434 US 1034, 54 L Ed 2d 781, 98 S
Footnote 88. United States v St. Louis (1976, DC Mo) 410 F Supp 948, 14 BNA FEP Cas
1473, 12 CCH EPD 11071, amd on other grounds (ED Mo) 418 F Supp 383, 14 BNA
FEP Cas 1484, 12 CCH EPD 11071, affd in part and revd in part on other grounds
(CA8) 549 F2d 506, 14 BNA FEP Cas 1486, 13 CCH EPD 11476, cert den 434 US
819, 54 L Ed 2d 76, 98 S Ct 60, 15 BNA FEP Cas 1184, 15 CCH EPD 7856.
Footnote 89. Kirkland v New York State Dept. of Correctional Services (1974, DC NY)
374 F Supp 1361, 7 BNA FEP Cas 694, 7 CCH EPD 9268, affd in part and revd in part
on other grounds (CA2) 520 F2d 420, 11 BNA FEP Cas 38, 10 CCH EPD 10357, reh
den (CA2) 531 F2d 5, 11 BNA FEP Cas 1253, 10 CCH EPD 10547.
Footnote 90. EEOC v Greyhound Lines, Inc. (1980, CA3) 635 F2d 188, 24 BNA FEP
Cas 7, 24 CCH EPD 31317.
Footnote 91. Dickerson v United States Steel Corp. (1978, ED Pa) 472 F Supp 1304, 20
Footnote 92. U.S. v Yonkers (1984, SD NY) 609 F Supp 1281, 36 CCH EPD 34928.
Footnote 93. Fudge v Providence Fire Dept. (1985, CA1) 766 F2d 650, 38 BNA FEP Cas
648, 37 CCH EPD 35421.
Footnote 94. Pennsylvania v Rizzo (1979, ED Pa) 466 F Supp 1219, 20 BNA FEP Cas
130, 20 CCH EPD 30241.
342 The four-fifths or 80 percent rule

View Entire Section
Under the Uniform Guidelines, a test or other selection procedure is generally regarded
as having an adverse impact where its selection rate for any race, sex, or ethnic group is
less than four-fifths (or 80%) of the rate for the identifiable group with the highest rate.
This guideline is only a rule of thumb and may not control the evaluation of impact
where there are deficiencies in the statistical data or practical considerations that
persuasively lead to a contrary conclusion. It is used as a guide by the EEOC in fixing its
priorities for bringing enforcement actions, and does not constitute a minimum
requirement or a necessarily inclusive standard for determining liability. For example,
the rule may not be applied to an employer that has conducted an extensive recruiting
campaign, and has thereby developed a larger than normal pool of minority and female
applicants. On the other hand, a more stringent rule may be applied where an employer's
reputation may have discouraged applicants of particular groups from applying by
making them believe application would be futile. 95
The courts are not in agreement as to the worth of the 80% rule. While it has been
adopted as an appropriate standard for determining adverse impact in pass/fail analyses,
96 it has also been criticized as an arbitrary standard that fails to take into account
differences in sample sizes and test results in the applicant population. 97
Footnotes
Footnote 95. 29 CFR 1607.4D.
Footnote 96. Moore v Southwestern Bell Tel. Co. (1978, ED Tex) 19 BNA FEP Cas 232,
affd (CA5) 593 F2d 607, 19 BNA FEP Cas 663, 19 CCH EPD 9134.
Footnote 97. Eubanks v Pickens-Bond Constr. Co. (1980, CA8) 635 F2d 1341, 24 BNA
FEP Cas 897, 24 CCH EPD 31397; Reynolds v Sheet Metal Workers (1980, DC Dist
Col) 498 F Supp 952, 24 BNA FEP Cas 648, 22 CCH EPD 30739, affd (App DC) 702
343 How to make four-fifths rule computations

View Entire Section
To determine whether the four-fifths rule has been met:
(1) calculate the rate of selection for each group by dividing the number of persons
selected from a group by the number of applicants from that group;
(2) observe which group has the highest selection rate;
(3) calculate the impact ratios by comparing the selection rates for the other individual
groups to that of the group having the highest selection rate (divide the selection rate for
a group by the selection rate for the highest group). 98
Illustration: If an employer has 120 applicants, 80 white and 40 black, from which
60 are selected, 48 whites and 12 blacks, it has a selection rate for white applicants of
48/80, or 60%, and a selection rate for black applicants of 12/40, or 30%. Under the
Guidelines, the employer's selection procedures have an adverse impact on blacks,
since their selection rate is equal to only 50% of the selection rate of whites.
Persons subject to the Guidelines must make these calculations only for the selection
rates of men and women on the one hand, and for entire race and ethnic groups on the
other. Comparisons for subgroups (e.g., white men, white women, black men, black
women) are not required, although the records that are required to be kept may
nevertheless disclose an apparent exclusion with regard to subgroups. 99
Footnotes
Footnote 98. 29 CFR 1607.4D; 44 Fed. Reg. 11996, Question 12.
Footnote 99. 44 Fed. Reg. 11996, Question 17.
344 Defending against a showing of adverse impact; establishing business

necessity
View Entire Section

Go to Supplement
Once it is shown that testing procedures have an adverse impact, the employer must
establish business necessity by showing that its testing requirements have a manifest
relationship to the employment in question. 1 Both an education requirement and a
paper and pencil test unsupported by any "meaningful study" of their relationship to job
performance ability have been held invalid. 2
Job-relatedness cannot be proved by
vague and insubstantial hearsay. Rather, the Supreme Court has endorsed the empirical
validation methods described in the Uniform Guidelines as a proper validation technique,
to which the employer's study, in that case, failed to conform. 3 Later, the Fifth Circuit
ruled that an employer's burden to justify a test that has been shown to be prima facie
discriminatory is not satisfied merely by establishing a rational basis for the test, but that
the test must be validated. 4
The concepts of "business necessity" and "job relatedness" as enunciated by the Supreme
Court in Griggs 5 and Albermarle 6 have been incorporated into Title VII, 7 as
amended by the Civil Rights Act of 1991. 8 Therefore, if an employment practice is
shown to have a disparate impact on a protected class, the employer must demonstrate
that the practice is job-related for the position in question and consistent with business
necessity. 9 In other words, employers must prove that their testing procedures that
have a disparate impact are required by business necessity. 10
Illustration: A test that qualified black workers fail at a higher rate than equally
qualified white workers is invalid and may not be regarded as required by business
necessity. 11
The employer's burden is not satisfied by general statements regarding a company's
judgment or a selecting official's personal belief that a test or job requirement would
improve the overall quality of the work force or benefit plant operations. 12
A general discussion of the business necessity defense, including its incorporation into
Title VII by the Civil Rights Act of 1991, appears elsewhere. 13
Establishing business necessity for ranking job candidates according to test scores is
discussed at 345.
Under the ADEA, whenever a test is claimed as a basis for different treatment of
employees or applicants on the ground that it is a "reasonable factor other than age," 14
and the test has an adverse impact on individuals within the protected age group, it can
only be justified as a business necessity. Tests that are asserted as "reasonable factors
other than age" will be scrutinized by the EEOC in accordance with the standards set
forth in the Selection Procedure Guidelines. 15 The concepts of "business necessity"
and "job relatedness" incorporated into Title VII by the Civil Rights Act of 1991 16 are
intended to apply also to those antidiscrimination laws that have been modeled after and
interpreted consistently with Title VII. Thus, disparate impact claims brought under the
ADEA or the ADA should be treated in the same manner as under Title VII as amended.
17
Caution: There is a difference of opinion among the courts as to whether the

empirical validation techniques mentioned in the Uniform Guidelines are the only way
of validating job requirements other than tests. Education, skill, and experience
requirements have been validated by expert testimony and outside studies. 18
344 ----Defending against a showing of adverse impact; establishing business
necessity [SUPPLEMENT]
Practice Aids: The business necessity defense in disparate impact discrimination
cases, 30 Ga LR 2:387 (1996).
The Civil Rights Act of 1991: the business necessity standard, 106 Harv LR 896 (1993).
Is silence really golden? The Seventh Circuit's application of disparate impact to the
ADEA, 79 Marquette LR 3:833 (1996).
Case authorities:
In disparate impact Title VII case, defendant's affirmative defense is that of business
necessity. Healey v Southwood Psychiatric Hosp. (1996, CA3 Pa) 78 F3d 128, 70 BNA
FEP Cas 439.
Footnotes
Footnote 1. Moody v Albemarle Paper Co. (1973, CA4) 474 F2d 134, 5 BNA FEP Cas
613, 5 CCH EPD 8470, vacated on other grounds 422 US 405, 45 L Ed 2d 280, 95 S
Footnote 4. Scott v Anniston (1979, CA5) 597 F2d 897, 20 BNA FEP Cas 62, 20 CCH
EPD 30049, cert den 446 US 917, 64 L Ed 2d 271, 100 S Ct 1850, 22 BNA FEP Cas
973, 22 CCH EPD 30833.
Footnote 7. 42 USCS 2000e- 2(k)(1)(A)(ii).
Footnote 8. P.L. 102-166 105(a); Interpretative Memorandum 137 Congressional
Record S 15276, 10/25/91.
Footnote 9. 42 USCS 2000e-2(k)(1)(A)(ii).

Footnote 12. H Rept No. 102-40, Part 1, 4/24/91, pp. 42-44.
Footnote 13. 268.
Footnote 14. As to the "reasonable factor other than age" exception to the provisions of
the ADEA, generally, see 171.
Footnote 16. P.L. 102-166 105(a).
Footnote 18. For a full discussion of this issue, see 428 et seq. For a full discussion
of validation under the Guidelines, see 351 et seq.
345 Application of business necessity defense to ranking job candidates by test

scores
View Entire Section
Not only employment tests themselves, but also an employer's use of test results to rank
candidates for available employment opportunities, must be justified as a business
necessity when shown to have a disparate impact on a class protected by Title VII, under
the business necessity defense incorporated into Title VII by the Civil Rights Act of
1991. 19 Therefore, if a test does not predict meaningful differences in performance
among those who pass, it is probably unlawful to place the candidates in rank order
according to test scores. Use of a test for such ranking purposes, rather than as a device
to screen out candidates lacking minimum skills, is justified only when there is evidence
showing that those with a higher test score do better on the job than those with lower
scores. Moreover, the greater the adverse impact of a test, the higher the correlation
between test scores and the measure of job performance must be. 20
Footnotes
Footnote 19. 344.
346 Overcoming statistical evidence

View Entire Section
In addition to showing business necessity, a prima facie case can also be overcome by
attacking the plaintiff's statistics as not properly formulated or as statistically
"insignificant." A full discussion of the general principles involved will be found at
2796.
In selection procedure cases, the plaintiff's statistics have been found insufficient to
establish a prima facie case where:
22.5% of the black applicants and 22.8% of the white applicants passed a test; 21
89.5% of the black employees and 96.6% of the whites passed; 22
the pass rate for whites was only 1.43 times that for blacks. 23
Footnotes
Footnote 21. Smith v St. Louis S.F.R. Co. (1975, DC Ala) 397 F Supp 580, 11 BNA FEP
Cas 930, 10 CCH EPD 10277.
Footnote 22. Moore v Southwestern Bell Tel. Co. (1979, CA5) 593 F2d 607, 19 BNA
Footnote 23. Stewart v Hannon (1979, ND Ill) 469 F Supp 1142, 22 BNA FEP Cas 383,
20 CCH EPD 30223, petition den (ND Ill) 28 BNA FEP Cas 1168, affd (CA7) 675 F2d
347 The bottom line concept: is it a defense

View Entire Section
The Uniform Guidelines state that the enforcement agencies will not usually prosecute an
employer whose total selection procedure does not have an adverse impact, even if
individual components of the system do. 24 This is the "bottom line" concept. 25
The question has arisen as to whether employers faced with discrimination charges can
use the "bottom line" as a defense. That is, what if a particular and identifiable aspect of
an employer's selection process is shown to have an adverse impact on a group protected
by Title VII, but the selection process, when completed, displays a proportion of
selections of that group that is equal to (or in excess of) what would be expected from the
qualified and available labor market? Faced with this situation, in its Teal case, 26 the
Supreme Court found that the "bottom line" concept was not a defense, and that the
employer had to validate the test on which adverse impact was shown. However, the test
at issue in Teal created an absolute barrier to promotion: failure to pass the test
eliminated the candidate from consideration. What if a test represents only 15% of the
criteria for selection and it has an adverse impact, but the "bottom line" does not? Prior
to Teal, the Eight Circuit, in its Rule case, 27 determined that if the "bottom line"
showed an adverse impact, individual elements of the selection process, if capable of
being isolated in terms of effect, could be considered in fashioning a remedy. However,
showing the disparate impact of a "subtest" was insufficient to make a prima facie case.
Only the process' end result, or "bottom line," had to be examined in terms of impact.
Whether this analysis is still valid after the Teal decision is unclear.
At least one court has held that Teal does not apply when the individual element of a
policy being challenged is not "free-standing." For example, while the "senior first" rule
of a transfer policy may have had an adverse impact against older workers who were
involuntarily transferred, ADEA plaintiffs challenging the policy could not show
discrimination by excluding the voluntary transfer provision of the policy from their
statistical analysis. Unlike the situation presented in Teal, the plaintiffs had other
opportunities available to avoid the impact of the element being challenged. 28
Recommendation: Employees and applicants rejected only in part because of a

particular selection device with an adverse impact against their protected group should
claim that Teal controls the situation. On the other hand, if the "bottom line" does not
demonstrate an adverse impact on the protected group, the employer should claim that
the Rule case controls the situation.
Footnotes
Footnote 25. As to the "bottom line" concept in a validation context, generally, see
353.
Footnote 26. Connecticut v Teal (1982) 457 US 440, 73 L Ed 2d 130, 102 S Ct 2525,
Footnote 27. Rule v International Asso. of Bridge, Structural & Ornamental Ironworkers,
etc. (1977, CA8) 568 F2d 558, 16 BNA FEP Cas 35, 15 CCH EPD 7943, 24 FR Serv
2d 694, mod on other grounds (CA8) 17 BNA FEP Cas 1206, 17 CCH EPD 8409.
Footnote 28. Arnold v U.S. Postal Service (1988) 274 US App DC 305, 863 F2d 994, 48
348 Other defenses

View Entire Section
Courts have rejected a number of arguments offered by employers attempting to justify
discriminatory selection procedures. These have included:
a lack of intent to discriminate in administering a test, and the fact that a similar test is
in general use; 29
the difficulty of devising a test or proving that it is job- related; 30
the fact that validation guidelines were unavailable at the time a validation study was
developed; 31
the fact that discriminatory testing practices were mandated by state law. 32
Footnotes
Footnote 29. United States v Chicago (1976, DC Ill) 411 F Supp 218, 14 BNA FEP Cas
417, 11 CCH EPD 10597, 21 FR Serv 2d 831, affd in part and revd in part on other
grounds (CA7) 549 F2d 415, 14 BNA FEP Cas 462, 13 CCH EPD 11380, 40 ALR Fed
421.
Footnote 30. United States v Enterprise Asso. of Steam, etc. (1973, DC NY) 360 F Supp
979, 6 BNA FEP Cas 319, 6 CCH EPD 8716, remanded on other grounds (CA2) 501
Footnote 31. Watkins v Scott Paper Co. (1976, CA5) 530 F2d 1159, 12 BNA FEP Cas
part and remanded in part on other grounds (CA2) 633 F2d 232, 23 BNA FEP Cas 677,
23 CCH EPD 31153, 6 Fed Rules Evid Serv 724, affd 463 US 582, 77 L Ed 2d 866,
103 S Ct 3221, 51 USLW 5105, 32 BNA FEP Cas 250, 32 CCH EPD 33695 and cert
den 463 US 1228, 77 L Ed 2d 1410, 103 S Ct 3568, 51 USLW 3938, 32 BNA FEP Cas
359, 32 CCH EPD 33698.
349 Rebutting a showing of business necessity

View Entire Section

If an employer's defense in a disparate impact case consists of a demonstration that its
selection procedure that has an adverse impact is nevertheless justified by business
necessity, the employee or potential employee must attempt to discredit that claim. 33
The primary way of doing this is to demonstrate that the defendant's evidence is
insufficient to establish business necessity. In its Albemarle decision, 34 a case
involving a paper and pencil test that had an adverse impact, the Supreme Court gave
great deference to the empirical validation techniques described in the Uniform
Guidelines in determining that an employer's validation study failed to establish business
necessity. Specific criticisms the Court leveled at the employer's attempted validation
included the facts that:
the industrial psychologist who devised the study was not there to supervise its
implementation;
vague and subjective job standards were used to measure the test's predictive capacity;
the study failed to analyze particular jobs in terms of the skills they required;
the study revealed that a significant correlation between the tests used and job
performance was demonstrated in less than half of the jobs for which the test was used;
the study was suspect because it was conducted with only a small sample of minority
participation.
The Seventh Circuit, interpreting Albemarle, clearly placed the burden on the plaintiff in
a Title VII disparate impact case to show that other selection devices without a racial
impact would have served the employer's interest, once the employer successfully
demonstrated that the test satisfied the business necessity defense under a content validity
study, in accordance with the Uniform Guidelines. 35 As amended by the Civil Rights
Act of 1991, 36 Title VII codifies this burden by requiring that if the employer
demonstrates that the challenged practice is job related for the position in question and
consistent with business necessity, the complaining party must demonstrate that the
employer has refused to adopt a less discriminatory alternative employment practice. 37
These principles are intended to apply also to those antidiscrimination laws that have
been modeled after and interpreted consistently with Title VII. Thus, disparate impact
claims brought under the ADEA or the ADA should be treated in the same manner as
under Title VII as amended. 38
Recommendation: Those who challenge an employer's selection device should claim

that the elaborate empirical techniques referred to in the Uniform Guidelines are the
standards by which all validation attempts are to be judged. 39
Footnotes
Footnote 33. 2723.
Footnote 35. Gillespie v Wisconsin (1985, CA7) 38 BNA FEP Cas 1487.
Footnote 36. P.L. 102-166 105(a).
The duty to consider an "alternative employment practice" is discussed at 356.
Footnote 39. For a discussion of this issue in the context of education, skill, and
experience requirements, see 428 et seq.
350 Checklist of determinations for particular tests

View Entire Section
e. Validation [351-389]
(1). In General [351-360]
351 What is validation

View Entire Section
Test validity is a showing that there is a greater probability that high scorers will perform
well on the job than will low scorers, 67 and "validation" is the term of art for the
process of determining the job- relatedness of a selection procedure. 68 If the employer
cannot show the necessary correlation between the test and the joband the employer
bears the burden of proof on the issue of validation 69 then the use of the test is
unlawful, regardless of whether the employer's intention in using the test was to eliminate
job applicants of a particular race or color. 70
It has been said that neither an employer's good intentions nor the size of its expenditure
in developing a test is determinative of whether the test is valid. 71
Footnotes
Footnote 67. Harper v Baltimore (1973, DC Md) 359 F Supp 1187, 5 BNA FEP Cas
1050, 5 CCH EPD 8658, affd in part and mod in part on other grounds (CA4) 486 F2d
EPD 7952, on remand (ND Ga) 7 BNA FEP Cas 1225, affd (CA5) 493 F2d 765, 7
BNA FEP Cas 1228, 7 CCH EPD 9361, reh den (CA5) 495 F2d 1372.
Footnote 70. Harper v Baltimore (1973, DC Md) 359 F Supp 1187, 5 BNA FEP Cas
1050, 5 CCH EPD 8658, affd in part and mod in part on other grounds (CA4) 486 F2d
Footnote 71. Firefighters Institute for Racial Equality v St. Louis (1980, CA8) 616 F2d
352 When a selection procedure must be validated

View Entire Section
A selection procedure must be validated, according to the Guidelines, when the
procedure has an adverse impact on the employment opportunities of any race, sex, or
ethnic group. 72
Under the Guidelines, "ethnic group" includes any group of persons identifiable on the
grounds of religion or national origin. 73
When a formal and scored selection procedure that has an adverse impact is used, the
validation techniques contemplated by the Guidelines should be followed, if technically
feasible. 74 When an informal or unscored selection procedure that has an adverse
impact is used, the employer should change the procedure to one that is a formal, scored,
or quantified measure or combination of measures and then validate the procedure. 75
Observation: The Guidelines recognize that there are situations in which validation
by their methods cannot or need not be performed. 76
The suggestion that an employer must validate any selection procedure prior to using it
might be read into the Guidelines. However, as amended by the Civil Rights Act of 1991,
77 Title VII expressly provides that the employer does not have to justify its job
selection procedures until the plaintiff has shown adverse impact. 78
The Guidelines were created at a time when the majority of courts considered it to be the
employer's burden to prove that an adverse impact was justified by business necessity,
and that such a burden was difficult to establish. Subsequently, the Supreme Court
determined that the burden of proof always remains with the plaintiff in an adverse
impact case, and that the justification for maintaining a practice with an adverse impact
need not be "essential" to the employer's business. 79
Observation: Although the case decided by the Supreme Court involved a challenge
to both subjective 80 and objective selection processes under both disparate treatment
and impact methods of proof, the Court's holding left little doubt as to its applicability
in all disparate impact situations. Therefore, courts may be more reluctant to require an
employer to justify an adverse impact under the emperical standards set forth in the
Guidelines.
Footnotes
Footnote 73. 29 CFR 1607.16P.
Footnote 74. 29 CFR 1607.6B(2).
Footnote 75. 29 CFR 1607.6B(1).
Footnote 76. See 359 for a discussion of the alternatives.
Footnote 77. P.L. 102-166 105(a).
Footnote 78. 42 USCS 2000e-2(k)(1)(A)(i).
Footnote 79. Wards Cove Packing Co. v Atonio (1989) 490 US 642, 104 L Ed 2d 733,
Footnote 80. As to subjective selection processes, generally, see 415 et seq.
353 The "bottom line" concept

View Entire Section
As formulated in the Uniform Guidelines, the "bottom line" concept states that, with a
few exceptions if a total selection process does not have an adverse impact, the employer
need not evaluate the individual components of the process for adverse impact or validate
such individual components. 81
Illustration: Appraisal of candidates for a certain position might include initial

screening based on an application blank and interview, a written test, a medical
examination, a background check, and a supervisor's interview. While the written test
may have an adverse impact on a particular class protected by Title VII, validation of
that test is often not required where the combined result of all segments of the selection
process does not show an adverse impact.
Illustration: An employer may select some applicants for a certain position from
outside the company through written tests while selecting other applicants through an
internal upward mobility program. Again, despite the fact that the written test may
have an adverse impact, validation for that test generally will not be required where no
adverse impact results from the combined effect of the two avenues of entry to the
position.
Under the Guidelines, an exception to this rule may be made where the individual
selection procedure is a significant factor in the continuation of patterns of assignment of
incumbent employees caused by prior discriminatory employment practices. 82
Illustration: An employer traditionally hired blacks for its "laborer" department in a

manufacturing plant, and traditionally hired only whites as skilled craftsmen. In 1962,
the employer began to use an unvalidated test to screen incumbent employees who
sought to enter the apprenticeship program for skilled craft jobs. During recent years,
special recruitment efforts were instituted, so that the selection process for the
apprenticeship program, which included the written examination, resulted in the
selection of black applicants for apprenticeship in approximately the same rates as
white applicants. In these circumstances, if the written test had an adverse impact, its
use would tend to keep incumbent black employees in the laborer department.
The Guidelines also provide an exception to the bottom line rule in "unusual
circumstances," such as where the weight of court decisions or administrative
interpretations holds that a specific procedure (such as height or weight requirements or
no-arrest records requirements) is not job- related in the same or similar circumstances.
83 The EEOC says that decisions as to what constitutes unusual circumstances will be
made only at a high level. Investigators and compliance officers are not authorized to
make such decisions. 84
Any individual denied a job because of a particular component in a selection procedure
that otherwise meets the "bottom line" standard retains the right to proceed through the
appropriate agencies and into federal court. 85
Caution: In Connecticut v Teal (1982) 457 US 440, 73 L Ed 2d 130, 102 S Ct

2525, 29 BNA FEP Cas 1, 29 CCH EPD 32820, the Supreme Court held that the
bottom line cannot constitute a defense where a discriminatory component of a
nondiscriminatory selection system is an absolute bar to employment opportunity. 86
Footnotes

Footnote 84. 44 Fed. Reg. 11996, Question 25.
Footnote 85. 44 Fed. Reg. 11996, Question. 26.
Footnote 86. 347.
354 When a selection procedure's mode of use must be validated

View Entire Section
Even if a test is otherwise valid, the way its results are utilized may violate Title VII. For
example, courts have struck down employers' use of rank-ordering (i.e., selecting
applicants with the highest scores on a test) and cutoffs (i.e., using test scores as a
threshold determinate) despite the existence of validity studies for the tests themselves.
87
The Guidelines agree that validation of a selection procedure itself may not be enough.
They state that where use of results for rank ordering has a greater adverse effect than use
of scores solely to screen unqualified candidates, the employer must validate that method
of use. 88 The Guidelines state that cutoff scores should normally be set to be
reasonable and consistent with normal expectations of acceptable proficiency within the
workforce. Where applicants are ranked on the basis of properly validated selection
procedures and applicants scoring below a higher cutoff score than appropriate in light of
such expectations have little or no chance of being selected for employment, the higher
cutoff score may be appropriate, but the degree of adverse impact should be considered.
89
Footnotes
(1980, CA2) 630 F2d 79, 23 BNA FEP Cas 909, 23 CCH EPD 31154, cert den 452 US
940, 69 L Ed 2d 954, 101 S Ct 3083, 25 BNA FEP Cas 1683, 26 CCH EPD 31881;
Vanguard Justice Soc. v Hughes (1979, DC Md) 471 F Supp 670, 19 BNA FEP Cas 587,
20 CCH EPD 30077; Allen v Mobile (1978, SD Ala) 464 F Supp 433, 18 BNA FEP
Cas 217, 18 CCH EPD 8845.
Footnote 88. 29 CFR 1607.5G.
Footnote 89. 29 CFR 1607.5H.
355 Validating the test for the particular job

View Entire Section
Under Title VII, tests must measure the person for the job and not the person in the
abstract. 90
According to the EEOC, any test must be validated against the job or jobs for which it is
a prerequisite, and the validity of the test must be demonstrated and not merely assumed.
91 As amended by the Civil Rights Act of 1991, 92 Title VII requires that evidence
offered to show business necessity directly address the necessity of the practice for the
particular job for which it is utilized. 93
A test is not validated merely because an employer demonstrates that the knowledge,
skills, and abilities tested by the examination coincide with some of the knowledge,
skills, and abilities required to successful job performance; the employer must also show
that the attributes selected for examination are centrally and not merely peripherally
related to successful job performance, that the various parts of the examination are
accurately weighted to reflect the relative importance to the job of the tested attributes,
and that the level of difficulty of the examination measures the level of difficulty of the
job. 94
However, this does not mean that the employer has to show a perfect positive correlation
between its selection criteria and the important elements of job performance; a significant
correlation between the criteria and work elements is sufficient to prove the validity of
the criteria. 95
A test may be used for jobs other than those for which it has been professionally
validated only if there are no significant differences between studied and unstudied jobs.
96 Similarly, under Title VII's burden of proof provisions for disparate impact cases,
as amended by the Civil Rights Act of 1991, 97 evidence that a given test is required to
measure effective job performance for a specific position is not necessarily sufficient to
prove the same test is valid for a different job. 98
Ordinarily, a test or other selection procedure must be validated for each employer and
geographic location to which it will be applied. 99 Under certain circumstances,
however, the Guidelines permit the use of selection procedures to be supported by
validity studies conducted by other users or test publishers. 1
Footnotes
Footnote 91. 29 CFR 1607.15; EEOC Decision No. 70-501 (1970) CCH EEOC Dec
6112, 2 BNA FEP Cas 500; EEOC Decision No. 70-552 (1970) CCH EEOC Dec 6139,
2 BNA FEP Cas 539.
Footnote 92. P.L. 102-166 105.
Footnote 97. 344.
Footnote 99. EEOC Decision No. 70-501 (1970) CCH EEOC Dec 6112, 2 BNA FEP
Cas 500; EEOC Decision No. 70-552 (1970) CCH EEOC Dec 6139, 2 BNA FEP Cas
539.
Footnote 1. As to when criterion-related validity studies conducted by other users or
testing professionals will be considered acceptable for use by an employer, see 379.
356 Duty to consider alternative selection procedures

View Entire Section
An employer does not have a duty to consider the use of alternative employee selection
procedures before any adverse impact results from the use of current procedures. 2
However, when adverse impact results from a procedure and a validity study is called for,
the Guidelines state that an investigation of suitable alternative procedures and methods
of use should be included as part of the validity study. 3 This position has been
endorsed judicially. 4 Furthermore, as amended by the Civil Rights Act of 1991, 5 Title
VII is violated when the complainant demonstrates that the employer could have adopted
a less discriminatory "alternative employment practice" but that it refused to do so. 6
Only an "alternative employment practice" that is consistent with the law prior to June 5,
1989, 7 including Albermarle, 8 will suffice to make this demonstration. 9 These
principles are intended to apply also to those antidiscrimination laws that have been
modeled after and interpreted consistently with Title VII. Thus, disparate impact claims
brought under the ADEA or the ADA should be treated in the same manner as under the
amended Title VII. 10

Regulations implementing 504 of the Rehabilitation Act prohibit the use of tests or
other selection criteria that screen out handicapped persons, unless the selection
procedure is shown to be job-related for the position in question and alternative tests that
do not screen out as many handicapped persons are not available. 11
Agency
regulations differ somewhat with respect to the matter of alternative test availability. For
example, HHS regulations provide that the Director of the Office of Civil Rights must
show that alternative tests are available. 12 However, under Department of
Transportation regulations, the recipient of federal aid must show that such tests are not
available. 13
How extensive must the investigation of alternatives be? The Guidelines answer that a
reasonable investigation begins with a search of the published literature (test manuals and
journal articles) to develop a list of currently available selection procedures that have
been found valid for the job in question or for similar jobs. A further review would then
be required of all selection procedures at least as valid as the proposed procedure to
determine whether any offer the probability of lesser adverse impact. Where the
information on the proposed selection procedure indicates a low degree of validity and
high adverse impact, and the published literature does not suggest a better alternative,
investigation of other sources (for example, professionally available, unpublished
research studies) may also be necessary before continued use of the proposed procedure
can be justified. A survey of the enforcement agencies alone does not constitute a
reasonable investigation of alternatives. 14
If the investigation of alternatives discloses that two or more selection procedures are
available that serve the user's legitimate interest in efficient and trustworthy
workmanship and are substantially equally valid for a given purpose, the Guidelines state
that the user should adopt the procedure that has the lesser adverse impact. 15
Observation: While the Guidelines' instruction to adopt the procedure that has the
lesser adverse impact comports with the requirements of the business necessity
doctrine as developed by the courts, considerations of risk and cost presumably are
relevant in examining alternatives under that doctrine.
Even after a validation study has been completed and a suitable selection procedure
adopted, the Guidelines impose an obligation to investigate additional alternative
selection procedures whenever the user is shown such an alternative with evidence of less
adverse impact and substantial evidence of validity for the same job in similar
circumstances. 16
Footnotes
Footnote 4. Allen v Mobile (1978, SD Ala) 464 F Supp 433, 18 BNA FEP Cas 217, 18
CCH EPD 8845.
Footnote 5. P.L. 102-166, 105.

Footnote 7. 42 USCS 2000e-2(k)(1)(C).
Footnote 9. Interpretative Memorandum 137 Congressional Record S 15276, 10/25/91.
Footnote 11. 13 CFR 113.3(e) (Small Business Administration); 45 CFR 84.13(a)
(Department of Health and Human Services; 45 CFR 1151.33(a) (National Foundation
on the Arts and Humanities); 49 CFR 27.35(a) (Department of Transportation).
357 Using a selection procedure prior to validation

View Entire Section
Use of a selection procedure with an adverse impact before it is validated is permitted by
the Guidelines where the user has available substantial evidence of validity and has in
progress, when technically feasible, a study designed to produce the additional evidence
necessary to the completion of validation within a reasonable time. If the study does not
demonstrate validity, however, the "interim" use provision does not constitute a defense
to liability. 17
With regard to a similar provision permitting interim use of unvalidated tests in an earlier
version of the Guidelines, one court found substantial evidence of validity where the
challenged test had been validated for similar jobs by other employers and where the
employer had conducted a concurrent criterion-related validity study and found the test to
be job-related. Also, the employer's plan to conduct a predictive criterion-related validity
study within two years was found to satisfy the requirement that steps toward proper
validation be taken within a reasonable time. Moreover, the employer was said to fall
within Title VII's grant of immunity for acts done "in good faith, in conformity with, and
reliance on, any written interpretation or opinion of the Commission," 18 because of the
employer's compliance with the interim use provision. 19
However, another court has held that there is no exemption to the employer from the
requirements of the law while a validation study is underway. 20
Footnotes
Footnote 17. 29 CFR 1607.5J.
Footnote 18. 42 USCS 2000e- 12(b).
8704.
Footnote 20. United States v St. Louis (1976, DC Mo) 410 F Supp 948, 14 BNA FEP Cas
1473, 12 CCH EPD 11071, amd on other grounds (ED Mo) 418 F Supp 383, 14 BNA
FEP Cas 1484, 12 CCH EPD 11071, affd in part and revd in part on other grounds
(CA8) 549 F2d 506, 14 BNA FEP Cas 1486, 13 CCH EPD 11476, cert den 434 US
358 Reviewing a validity study for currency

View Entire Section
According to the Guidelines, whenever validity has been shown for a particular selection
procedure, additional studies need not be performed until the time the validity of the
procedure should reasonably be reviewed for currency. 21 There are no absolutes for
determining the currency of a validity study. All circumstances concerning the study,
including the validation strategy used and changes in the relevant labor market and the
job, should be considered in determining when a study is outdated. 22
Footnotes
Footnote 22. 29 CFR 1607.5K.
359 Alternatives to validation

View Entire Section

The Guidelines recognize that there are circumstances in which an employer cannot use
the scientific validation techniques they outline. Although they require validation
whenever possible for both formal (scored) and informal (unscored) procedures, when
this is not technically feasible they direct the user to either eliminate the adverse impact
or otherwise justify their requirements "in accord with federal law." The only other
guidance they give is that alternative procedures should be as job-related as possible. 23
Observation: Other justification methods would include nonempirical proof, as well

as empirical and scientific methods not specifically described in the Guidelines.
Footnotes
360 An overview of validation methods

View Entire Section
Under the Guidelines, there are three methods of validating employment tests:
criterion-related validation: a test has criterion- related validity if entrance test scores
match later job performance ratings; 24
content validation: a test has content validity if it closely duplicates the duties of the
job, such as a typing test for a stenographer's job; 25
construct validation: a test has construct validity if it tests for traits necessary to
perform the job, such as intelligence, perceptual speed, or motivation. 26
Minimum technical standards for conducting the three types of validity studies are set
forth in the Guidelines. In general, the Guidelines provide that any validity study should
be based on a review of information about the job for which the selection procedure is to
be used, that the review should generally include a job analysis, and that any method of
job analysis may be used if it provides the information required for the specific validation
strategy used. 27
Although the Guidelines contain detailed standards for only content-, construct-, and
criterion-related validity studies, they do not preclude the development and use of other
professionally acceptable techniques of validation. 28
Nevertheless, it has been held
that an employer's burden is much heavier if it has not used a validation method
described by the Guidelines, even if the employer's tests appear on their face to be
job-related. 29
Footnotes
Footnote 27. 29 CFR 1607.14.
Footnote 28. 29 CFR 1607.14; Craig v County of Los Angeles (1980, CA9) 626 F2d
Footnote 29. United States v Chicago (1978, CA7) 573 F2d 416, 16 BNA FEP Cas 908,
16 CCH EPD 8141.
(2). Factors to Consider in Selecting a Validation Method [361, 362]
361 Accuracy of proof of job-relatedness

View Entire Section
Psychologists usually prefer empirical validation (criterion-related validation) over
rational validation (content or construct validation). Of the empirical validation methods,
they prefer predictive or classical validation 30 over concurrent validation. 31
The EEOC 32 and some courts 33 regard predictive validation as very accurate. At
the same time, the value of construct validation has been judicially questioned because
construct validity does not conclusively establish that test results are directly related to
job performance. 34 Nonetheless, the Supreme Court has noted that hiring practices
may be validated "in any one of several ways," presumably referring to each of the
methods described in the Guidelines. 35 Furthermore, the Seventh Circuit has rejected
the contention that the Guidelines favor criterion-related validity measures and reflect a
concern as to the inferiority of content validation. Instead, the Guidelines express no
preference with respect to the validation methods discussed. 36
Caution: Rational validationcontent or construct validationdepends appreciably

on the opinions of psychologists, so reliance on rational techniques requires an
employer to gamble that should litigation arise, a judge or jury will find the opinion of
its expert witness more credible than the opinion of the plaintiff's expert witness. If an
employer can produce evidence of empirical validation, the factfinder will have a more
informed basis on which to determine whether the employer's need to use the test
justifies its discriminatory impact.
Footnotes
Footnote 30. 364.
Footnote 31. 365.
Footnote 32. EEOC Decision No. 73-0499 (1973), CCH EEOC Dec 6402, 6 BNA FEP
Cas 1244.
Footnote 33. Bridgeport Guardians, Inc. v Members of Bridgeport Civil Service Com.
(1973, CA2) 482 F2d 1333, 5 BNA FEP Cas 1344, 6 CCH EPD 8755; Boston Chapter,
NAACP, Inc. v Beecher (1974, CA1) 504 F2d 1017, 8 BNA FEP Cas 855, 8 BNA FEP
Cas 1151, 8 CCH EPD 9678, 8 CCH EPD 9765, cert den 421 US 910, 43 L Ed 2d
Footnote 34. Douglas v Hampton (1975) 168 App DC 62, 512 F2d 976, 10 BNA FEP
Cas 91, 9 CCH EPD 9973.
Footnote 36. Gillespie v Wisconsin (1985, CA7) 771 F2d 1035, 38 BNA FEP Cas 1487,
FEP Cas 1424, 38 CCH EPD 35802.
362 Feasibility in terms of time and money

View Entire Section
Predictive or classical validation requires a long period of time before the test group's job
performance can be measured. 37 Moreover, the average employer simply cannot afford
to hire job applicants in a random sample, without screening, and then provide them with
similar work experience.
Construct validity is a more complex strategy than either criterion- related or content
validity, and the effort to obtain sufficient empirical support for construct validity may
involve a series of research studies, which include criterion-related-validity studies and
content-validity studies. Construct validation is a relatively new and developing
procedure, and there is at present a lack of substantial literature extending the concept to
employment practices. 38
It has been said that in most cases, content validation is the only feasible method. 39
However, concurrent validation appears also to have some advantages in that it avoids
the risks associated with the hiring of a random sample under the predictive method and
can make use of existing performance rating systems in the development of appropriate
criterion measures.
Footnotes
Footnote 37. Pennsylvania v Glickman (1974, DC Pa) 370 F Supp 724, 7 BNA FEP Cas
598, 7 CCH EPD 9125.
Footnote 39. Pennsylvania v Glickman (1974, DC Pa) 370 F Supp 724, 7 BNA FEP Cas
598, 7 CCH EPD 9125.
(3). Criterion-Related Validation [363-379]
363 An overview
View Entire Section
Criterion-related validation is a method for justifying the use of a selection procedure
despite the procedure's adverse impact. 40 There are two modes of criterion-related
validation: the predictive or classical mode 41 and the concurrent mode. 42
Under criterion-related validation, criteria that indicate successful job performance are
identified, a test is designed around those criteria, and the test scores are then matched
with job performance ratings. 43 Criterion-related validity is demonstrated by
empirical data showing that the selection procedure is predictive of, or significantly
correlated with, important elements of work behavior. 44
The enforcement agencies and the courts have set requirements for this validation method
relating to:
technical feasibility; 45
a job analysis or review of job information; 46
representativeness of the sample; 47
characteristics of the criterion measures; 48
treatment of particular kinds of criteria; 49
statistical relationships; 50
avoiding distortion; 51
determining "fairness." 52
Footnotes
Footnote 41. 364.
Footnote 42. 365.
Ct 767, 16 BNA FEP Cas 501, 15 CCH EPD 8019; Kirkland v New York State Dept. of
Correctional Services (1974, SD NY) 374 F Supp 1361, 7 BNA FEP Cas 694, 7 CCH
EPD 9268, affd in part and revd in part on other grounds (CA2) 520 F2d 420, 11 BNA
FEP Cas 38, 10 CCH EPD 10357, reh den (CA2) 531 F2d 5, 11 BNA FEP Cas 1253,
10 CCH EPD 10547; Equal Employment Opportunity Com. v Local 638 (1975, SD
NY) 401 F Supp 467, 12 BNA FEP Cas 712, 10 CCH EPD 10347, supp op (SD NY)
421 F Supp 603, 12 BNA FEP Cas 742, mod on other grounds (CA2) 532 F2d 821, 12
Footnote 45. 366.
Footnote 46. 367.
Footnote 47. 368.
Footnote 48. 369.
Footnote 49. 370-372.
Footnote 50. 373.
Footnote 51. 374.
Footnote 52. 375-378.
364 Predictive or classical mode

View Entire Section
Predictive validation involves comparing test performance with subsequent job
performance. 53 Under the predictive or classical mode of validating a test, criteria that
indicate successful job performance must be identified, and then test scores must be
matched with job performance ratings for the selected criteria to establish realistically
whether the applicant who receives high scores is actually performing as predicted. 54
Illustration: An employer administers a test to 100 applicants, hires them all

regardless of test scores and without further screening, and gives them all equally
cogent instruction and equally congenial supervision. If, after a time, the test scores
correlate significantly with job performance, the test is valid.
Footnotes
Footnote 53. Pennsylvania v Glickman (1974, WD Pa) 370 F Supp 724, 7 BNA FEP Cas
598, 7 CCH EPD 9125.
365 Concurrent mode

View Entire Section
In concurrent validation, a sample of current employees is tested and the scores are
compared with one or more criteria of employees' ability to perform. 55
Illustration: An employer administers a test to 100 current employees in jobs that

require similar skills. Their scores are then compared with ratings of job performance
given to them by unbiased supervisors. If the test scores correlate significantly with the
ratings, the test is validated.
A concurrent mode is also involved in the validation of a promotion test by means of a
correlation between prepromotion efficiency ratings and promotion test scores, but this
would satisfy Title VII's requirements only if the job requirements of the lower level job
and the job for which the test is being administered are identical. 56
Footnotes
Dec 6402.
16 CCH EPD 8141.
366 Technical feasibility

View Entire Section

According to the Guidelines, conduct of a criterion-related validity study may not be
technically feasible where any of the following is true:
(1) an adequate sample of persons is not available for the study to achieve findings of
statistical significance;
(2) a sufficient range of scores on the selection procedure and job performance measures
to be representative of the results will not be obtained, given the ranges normally
expected; and
(3) it is not feasible to devise unbiased, reliable, and relevant measures of job
performance or other criteria of employee adequacy. 57
For example, the use of a criterion-related validation method was not feasible where the
number of incumbents in positions for which the test would be used was 19 and there was
only one nonwhite among them. 58 Similarly, an employer's attempt to use the
criterion-related method of validating a promotional examination with a disparate impact
against black employees failed because, among other reasons, the sample of 15 was too
small to be statistically significant. 59
The Guidelines place the burden of determining whether criterion-related validation is
technically feasible on the employer or other user of a selection procedure. In order to
obtain a sample of adequate size, the Guidelines say that a user may combine jobs with
substantially the same major work behaviors "where appropriate." The Guidelines do not
require the user of a selection procedure to hire or promote persons for the purpose of
making it possible to conduct a criterion-related validity study. 60
A court may assume the technical feasibility of a criterion-related validity study, unless
the user of a selection procedure presents evidence to the contrary. 61 This is significant
in light of the preference expressed by some courts for criterion-related validity studies.
Footnotes
Footnote 57. 29 CFR 1607.16U.
Footnote 58. Norwalk Guardian Asso. v Beres (1980, DC Conn) 489 F Supp 849.
FEP Cas 1494.
Footnote 60. 29 CFR 1607.14B(1).
367 Job analysis or review of job information

View Entire Section
According to the Guidelines, a job analysis or review of job information should be
conducted to determine measures of work behavior(s) or performance that are relevant to
the job or group of jobs in question. These measures or criteria are relevant to the extent
that they represent critical or important job duties, work behaviors, or work outcomes. 62
A criterion-related validity study has been held ineffective where it does not include an
analysis of the job and merely compares test results with the subjective ratings of
supervisory personnel who have only vague standards for judging job performance. 63
Also, a validity study contained inadequate job analyses where the study adopted existing
corporate job descriptions and apprentice training syllabi that did not specifically
describe the tasks required of certain employees. 64
Job analysis in connection with identification of essential functions of a job for purposes
of the Americans With Disabilities Act is discussed elsewhere. 65
Footnotes
Footnote 62. 29 CFR 1607.14B(2).
Footnote 63. Moody v Albemarle Paper Co. (1973, CA4) 474 F2d 134, 5 BNA FEP Cas
Ct 2362, 10 BNA FEP Cas 1181, 9 CCH EPD 10230; EEOC Dec No. 73-0499 (1973) 6
BNA FEP Cas 1244, CCH EEOC Dec 6402.
Footnote 65. 225.
368 Representativeness of the sample

View Entire Section
Whether the study is predictive or concurrent, the sample subjects must be as
representative as feasible of the candidates normally available in the relevant labor
market for the jobs in question. Also, they must, insofar as feasible, include the races,
sexes, and ethnic groups normally available in the relevant job market. In determining
the representativeness of the sample in a concurrent validity study, the user must take
into account the extent to which the specific knowledges or skills that are the primary
focus of the test are those that employees learn on the job. 66
Where separate job groups are combined or compared in developing the sample, the
groups must be comparable with respect to the actual job they perform, the length of time
on the job (where time on the job is likely to affect performance), and other relevant
factors likely to affect validity differences if those factors are not included in the design
of the study and their effects identified. 67
A study was found to be inadequate where it pooled many crafts, from bricklayer to
electronic repairman and from welder to rigger, for study, and assumed that each craft
required the same job skills. 68
Concurrent validation is not achieved by giving the test to the best of those employees
working near the top of a line of progression, since their scores are not a permissible
measure of the minimal qualifications of new workers entering lower-level jobs. 69
Footnotes
Footnote 66. 29 CFR 1607.14B(4).
Footnote 67. 29 CFR 1607.14B(4).
369 Characteristics of the criterion measures

View Entire Section
The possibility of bias must be considered in both the selection of the criterion measures
and their application. All criterion measures must be examined for factors that would
unfairly alter the scores of any group. 70 Proper safeguards must be implemented to
ensure that scores on selection procedures do not enter into any judgments of employee
adequacy that are to be used as criterion measures. Whatever criteria are used must
represent important or critical work behavior or outcomes. 71
A study failed to meet a district court's interpretation of the standards for criterion-related
validation where the study did not identify the basis on which measured job behaviors
were determined to be important and the evidence did not reveal any rationale for the
combinations of criteria used in the study or for weighting of each criterion in the
combinations. 72
Observation: Since job success may be difficult to reduce to analytical standards as

jobs become more complex and job performance becomes less susceptible to
qualification, combinations of criteria may need to be devised as indices of job
performance with regard to highly complex jobs.
When there are significant differences in measures of job performance among the job
groups included in a sample, federal agencies will be particularly concerned with the
relevance of the criteria and their freedom from bias. 73 Significant differences
between races, sexes, or ethnic groups on criterion measures do not necessarily mean that
the criterion measures are biased, however. 74
Footnotes
Footnote 70. 29 CFR 1607.14B(2).
Footnote 71. 29 CFR 1607.14B(3).
Footnote 73. 29 CFR 1607.14B(2).
370 Criteria that may be used without full job analysis

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Certain criteria may be used without a full job analysis if the user can show the
importance of the criteria in the particular employment context. These criteria include,
but are not limited to, production rate, error rate, tardiness, absenteeism, and length of
service. Also, a standardized rating of overall work performance may be used where a
study of the job shows that it is an appropriate criterion. 75
Footnotes
Footnote 75. 29 CFR 1607.14B(3).
371 Supervisor's ratings as criterion
View Entire Section

In view of the possibility of bias in subjective evaluations, 76 supervisory rating
techniques and instructions to raters must be carefully developed to free them from
factors that would unfairly alter the scores of members of any group. 77
A study that used grades in job-related instruction as one criterion was found to be
inadequate where there was no explanation of what the grades were based on. This study
was also faulted for its use of supervisory ratings as a criterion, because it asked
supervisors to rate such vague and general attributes as ability to work without
supervision and potential for advancement, and took no precautions to avoid racial bias in
the ratings. 78
A "best qualified" hiring system was insufficient to rebut a prima facie case of racial
discrimination where the determination of who was best qualified was left to foremen and
clerks, no effort was made to train them to be neutral, no review was made of their
decisions, and no written records were kept of reasons for applicants' rejections. 79
In most circumstances, it is sufficient to analyze the reliability of each supervisor's
ratings separately. 80
Recommendation: To avoid supervisor bias, supervisors should be trained to

disregard general impressions and to concentrate instead on specified factors that
represent critical job dimensions. Furthermore, supervisors should meet to discuss each
rating and to resolve differences in judgment so that a single supervisor does not
establish the rating for any particular employee.
Footnotes
Footnote 76. As to the use of subjective criteria, generally, see 415 et seq.
Footnote 77. 29 CFR 1607.14B(2).
Footnote 79. Green v United States Steel Corp. (1983, ED Pa) 570 F Supp 254, affd in
part, vacated in part on other grounds and remanded in part on other grounds (CA3) 843
372 Performance in training as criterion
View Entire Section

Where performance in training is used as a criterion, success in training must be properly
measured and the relevance of the training should be shown either through a comparison
of the content of the training program with the critical or important work behavior of the
job(s), or through a demonstration of the relationship between measures of performance
in training and measures of job performance. 81 While the Supreme Court decisions in
one, and in the summary affirmance of another, has permitted an employer to prove the
validity of a test by showing only a correlation between success on the test and success in
a training program, without regard to any correlation between success on the test and
success on the job, 82
it has also affirmed the judgment of an appellate court which
ruled that an employer failed to establish validity for a test where no attempt was made to
correlate success on the test or in training with success on the job and the test did more
than simply screen out applicants who did not have the minimum skills necessary for
successful completion of the training program. 83
Caution: Courts will demand at least some facially apparent connection between the
training program and success in the job before success in training may be used as a
criterion.
Measures of relative success in training include, but are not limited to, instructor
evaluations, performance samples, and tests. 84
Footnotes
Footnote 81. 29 CFR 1607.14B(3).
12 BNA FEP Cas 1415, 11 CCH EPD 10958; United States v South Carolina (1977,
DC SC) 445 F Supp 1094, 15 BNA FEP Cas 1196, 15 CCH EPD 7920, affd 434 US
(1980, CA2) 633 F2d 232, 23 BNA FEP Cas 677, 23 CCH EPD 31153, affd 77 L Ed
Footnote 84. 29 CFR 1607.14B(3).
373 Statistical relationship between selection procedure scores and job

performance
View Entire Section
The degree of relationship between selection procedure scores and criterion measures
must be examined and computed, using professionally acceptable statistical procedures.
A selection procedure is usually considered related to the criterion, for the purposes of
the Guidelines, when the relationship between performance on the procedure and
performance on the criterion measure is statistically significant at the 0.05 level. This
means that the relationship is close enough to have a probability of no more than one in
twenty of having occurred by chance. Absence of a statistically significant relationship
between a selection procedure and job performance in one job setting does not
necessarily negate the validity of that selection procedure for other contexts. 85
If other factors remain the same, the greater the magnitude of the relationship
("correlation coefficient") between performance on a selection procedure and one or
more criteria of performance on the job, and the greater the importance and number of
aspects of job performance covered by the criteria, the more likely it is that the procedure
will be appropriate for use. Reliance on a selection procedure that is significantly related
to a criterion measure, but is based on a study involving a large number of subjects that
has a low correlation coefficient will be subject to close review if its adverse impact is
severe. Sole reliance on a single selection instrument that is related to only one of many
job duties or aspects of job performance will also be subject to close review. The
appropriateness of a selection procedure is best evaluated in each particular situation, and
there are no minimum correlation coefficients applicable to all employment situations. In
determining whether a selection procedure is appropriate, the degree of adverse impact of
the procedure and the availability of other selection procedures of greater or substantially
equal validity should also be considered. 86
A correlation coefficient .60 between a test used to select the participants in a training
program and performance in the program as measured by written tests given at the end of
the program has been held to be sufficient to support the use of the training-entrance test,
even though only persons who received a passing score on the test were included in the
sample. 87 In another case, a validity study was found to be inadequate where the
correlation level was less than .30, the adverse impact on minorities from the use of the
selection procedure was severe, and the employer did not present any evidence regarding
its evaluation of alternative selection procedures. 88
Footnotes
Footnote 85. 29 CFR 1607.14B(5).
Footnote 86. 29 CFR 1607.14B(6).
374 Avoiding distortion

View Entire Section

All methods of gathering data for a criterion-related validity study should be examined
for freedom from factors that would unfairly alter the scores of members of any group. 89
It is important to avoid reliance on techniques that tend to overestimate validity findings
as a result of chance, unless appropriate precautions are taken. Reliance on a few
selection procedures or criteria of successful job performance when many selection
procedures or criteria of performance have been studied, or the use of optimal statistical
weights for selection procedures computed in one sample, are techniques that tend to
inflate validity estimates as a result of chance. Use of a large sample is one safeguard;
cross-validation is another. 90
Footnotes
Footnote 89. 29 CFR 1607.14B(2).
Footnote 90. 29 CFR 1607.14B(7).
375 Duty to study a selection procedure's "fairness"

View Entire Section
A study of "fairness" seeks to determine whether members of one race, sex, or ethnic
group usually score lower on a selection procedure than members of another group when
the differences in scores do not reflect differences in a measure of job performance. 91
The obligation to conduct fairness studies usually falls on users of selection procedures
or groups of users with a large number of persons in a job class, or on test developers;
small users utilizing their own selection procedures generally need not conduct such
studies because it is not technically feasible for them to do so. 92
Where a selection procedure results in an adverse impact on a race, sex, or ethnic group,
and that group is a significant factor in the relevant labor market, the user generally
should investigate the possibility of unfairness for that group, if it is technically feasible
to do so. The greater the severity of the adverse impact on a group, the greater the need
to investigate the possibility of unfairness. Where the weight of evidence from other
studies shows that the selection procedure predicts fairly for the group in question and for
the same or similar jobs, such evidence may be relied on in connection with the selection
procedure at issue. 93
Footnotes
Footnote 91. 29 CFR 1607.14B(8)(a).
Footnote 92. 29 CFR 1607.14B(8).
Footnote 93. 29 CFR 1607.14B(8)(b).
376 Effect of a finding of unfairness

View Entire Section
If unfairness of a selection procedure is demonstrated through a showing that members of
a particular group perform better or more poorly on the job than their scores on the
selection procedure would indicate through comparison with how members of other
groups perform, the user of the procedure may either revise or replace the selection
instrument in accordance with the Guidelines, or continue to use the selection instrument
operationally with appropriate revisions in its use to assure compatibility between the
probability of successful job performance and the probability of being selected. 94
Footnotes
Footnote 94. 29 CFR 1607.14B(8)(d).
377 Technical feasibility of fairness study

View Entire Section
In addition to the general conditions needed for technical feasibility in the conduct of a
criterion-related validity study, 95 an investigation of fairness requires:
(1) an adequate sample of persons in each race, sex, and ethnic group available for the
study to achieve findings of statistical and significance; and
(2) the samples for each group to be comparable with respect to of the actual job they
perform, length of time on the job (where time on the job is likely to affect performance),
and other factors likely to affect validity differences if those factors are not included in
the design of the study and their effects are not identified. 96
For example, Title VII was violated when an employer's promotional examination with
an adverse racial impact was not validated by the criterion- related method because,
among other reasons, the employer admitted that it was only able to measure the
correlation between the exam and performance at the entry level, rather than with respect
to the higher position for which the promotional test was utilized. 97
Footnotes
Footnote 95. 366.
Footnote 96. 29 CFR 1607.14B(8)(e).
FEP Cas 1494.
378 Effect of technical infeasibility of fairness study

View Entire Section
If a study of fairness should be performed but is not technically feasible, a selection
procedure that has otherwise met the validity standards of the Guidelines may be used,
unless the technical infeasibility has resulted from discriminatory employment practices
that are demonstrable by facts other than past failure to conform with requirements for
validation of selection procedures. 98
Footnotes
Footnote 98. 29 CFR 1607.14B(8)(f).
379 Transportability
View Entire Section
Criterion-related validity studies conducted by one test user or described in test manuals
and the professional literature are acceptable for use by another user under the Guidelines
when:
(1) evidence from the available studies meets the standards of the Guidelines for
criterion-related studies;
(2) the incumbents in the user's job and the incumbents in the job or group of jobs on
which the validity study was conducted perform substantially the same major work
behaviors, as shown by appropriate job analyses both on the job or group of jobs on
which the validity study was performed and on the job for which the selection procedure
is to be used; and
(3) the studies include a study of test fairness for each race, sex, and ethnic group that
constitutes a significant factor in the borrowing user's relevant labor market for the job in
question. If the studies under consideration satisfy (1) and (2) above but do not contain an
investigation of test fairness and it is not technically feasible for the borrowing user to
conduct an internal study of test fairness, the borrowing user may utilize the study until
studies conducted elsewhere that meet the requirements of the Guidelines show test
unfairness, or until it becomes technically feasible to conduct an internal study of test
fairness and the results of that study can be acted on. 99
An attempt to justify the use of a selection procedure on the basis of a criterion-related
validity study conducted by another employer engaged in activities similar to those of the
defendant has been rejected where there was no evidence of the similarity of the labor
pool available to the employer that was the subject of the study and the labor pool
available to the defendant. 1
Under the Guidelines, a multiunit criterion-related-validity study (i.e., one that covers a
selection procedure used in more than one unit within an organization) supports use of
the procedure in each unit without evidence of validity specific to each unit, where it
meets the general standards for such a study. 2 However, it has been held that a validity
study conducted in regard to jobs at one of an employer's plants could not justify use of
tests that were the subject of a validity study in the employer's other plants where the job
analyses were inadequate and the employer failed to show that there were no differences
between the applicant populations at the plants. 3
Footnotes
(4). Content Validation [380-386]
380 An overview
View Entire Section

The use of a selection procedure can be justified by means of content validation where
the procedure has an adverse impact. 4 This type of validation is established if the
content of the selection procedure closely resembles the content of the job. 5 The
federal enforcement agencies and the courts have established requirements for content
validation relating to:
a job analysis; 6
the need for "representative samples" of job tasks within the selection procedure; 7
the need for a statistical estimate of the procedure's reliability; 8
application of this validation strategy to particular situations. 9
Footnotes
Footnote 4. 29 CFR 1607.5A; Bridgeport Guardians, Inc. v Members of Bridgeport
Civil Service Com. (1973, CA2) 482 F2d 1333, 5 BNA FEP Cas 1344, 6 CCH EPD
8755.
Footnote 5. 29 CFR 1607.14C(4); Norwalk Guardian Asso. v Beres (1980, DC Conn)
489 F Supp 849.
Footnote 6. 381.
Footnote 7. 382.
Footnote 8. 383.
Footnote 9. 384-386.
381 Job analysis

View Entire Section
Content validation requires an analysis of the job involved to determine what
characteristics are essential for the adequate performance of that job and the subsequent
formulation of a test that accurately reflects the presence of the necessary qualities. 10
The Guidelines say that the job analysis should include an analysis of the important work
behaviors required for successful performance and their relative importance and, if the
behavior results in work products, an analysis of the work products. If some work
behaviors are not observable, the job analysis should identify and analyze those aspects
of the behaviors that can be observed and the observed work products. The work
behaviors selected for measurement should be critical work behaviors (behaviors

necessary for performance of the job) constituting most of the job. 11 All, or nearly all,
important parts of the job must be covered by the test or other selection procedure for it
to be content- valid. 12 For instance, a job analysis was inadequate where:
the task statements used omitted many important tasks and were too general to allow
them to be used accurately to measure their frequency or critical nature; 13
the employer offered no evidence indicating that the information gleaned from
interviews with incumbents was actually used, nor was there any indication that a
systematic effort had been made to discern the relative importance of various tasks; 14
However, a job analysis done under the content validation method was adequate even
though the analyzers were not trained in psychometrics, since no such requirement is
imposed by the Guidelines and all of the job specialists had either performed or
supervised the position at issue. 15
Footnotes
Footnote 10. Pennsylvania v Glickman (1974, WD Pa) 370 F Supp 724, 7 BNA FEP Cas
598, 7 CCH EPD 9125; Jones v New York City Human Resources Administration
(1975, SD NY) 391 F Supp 1064, 12 BNA FEP Cas 264, 12 BNA FEP Cas 280, 9 CCH
EPD 9905, 9 CCH EPD 10091, affd (CA2) 528 F2d 696, 12 BNA FEP Cas 284, 11
CCH EPD 10664, cert den 429 US 825, 50 L Ed 2d 88, 97 S Ct 80, 13 BNA FEP Cas
963, 12 CCH EPD 11207, reh den 430 US 923, 51 L Ed 2d 602, 97 S Ct 1341, 13
CCH EPD 11538.
Footnote 11. 29 CFR 1607.14C(2).
Footnote 12. United States v Buffalo (1978, DC NY) 457 F Supp 612, 19 BNA FEP Cas
776, 18 CCH EPD 8899.
Footnote 13. Vulcan Pioneers, Inc. v New Jersey Dept. of Civil Service (1985, DC NJ)
625 F Supp 527, 51 BNA FEP Cas 1291, 38 CCH EPD 35789, supp op (DC NJ) 658 F
Supp 9, 51 BNA FEP Cas 1355, affd (CA3) 832 F2d 811, 53 BNA FEP Cas 703, 45 CCH
EPD 37737.
Footnote 14. Moon v Cook County (1988, ND Ill) 1988 US Dist LEXIS 638.
FEP Cas 1424, 38 CCH EPD 35802.
382 Need for "representative samples"

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The Guidelines say that a selection procedure can be supported by a content-validity
study to the extent that the procedure is a "representative sample" of the content of the
job. 16 They concede, however, that selection procedures that purport to measure
knowledge, skills, or abilities may, in certain circumstances, be justified by content
validity, although they may not be representative samples, if the knowledge, skill, or
ability measured can be operationally defined and is a necessary prerequisite to
successful job performance. 17
To be content-valid, a selection procedure measuring a skill or ability should closely
approximate an observable work behavior, or its products should closely approximate an
observable work product. If a test purports to sample a work behavior or to provide a
sample of a work product, the manner and setting of the selection procedure and its level
of complexity should closely approximate the work situation. The closer the content and
the context of the selection procedure are to the work samples or work behaviors, the
stronger the basis for showing content validity, and the lesser the need for other evidence
of validity. 18
The "representativeness" standard essentially requires the employer to show that the
skills tested for are important for performance of the job. Accordingly, where the
employer did not perform a proper job analysis, 19 the relevant tasks and their relative
importance had not been established. 20 Content validation need not test all or nearly all
of the skills required by the position that is the subject of the challenge. The test,
however, must not focus exclusively on a minor aspect of the work or fail to test a
significant skill. 21
Therefore, a test met the Guidelines requirement regarding
representative samples, even though the test did not cover all the skills involved in the
job and did not adequately test for a "human relations skill" that the job analysis had
identified as important, where the ones it did measurememory, the ability to fill out
forms, and the ability to apply rules to factual situationswere all significant aspects of
the job. 22
However, a test's validity was rejected where the content of the test was
not adequately related to the job to which the test takers sought to be promoted. The test
focused on abilities easily tested by paper and pencil tests, which were inherently
incapable of measuring the ability to supervise, the single attribute that most separates
firefighters from fire captains. 23
Footnotes
Footnote 16. 29 CFR 1607.14C(1), 1607.16D.
Footnote 17. 29 CFR 1607.14C(1).
Footnote 18. 29 CFR 1607.14C(4).
Footnote 19. As to job analysis, see 381.
Footnote 20. Moon v Cook County (1988, ND Ill) 1988 US Dist LEXIS 638.
FEP Cas 1424, 38 CCH EPD 35802.
625 F Supp 527, 51 BNA FEP Cas 1291, 38 CCH EPD 35789, supp op (DC NJ) 658 F
Supp 9, 51 BNA FEP Cas 1355, affd (CA3) 832 F2d 811, 53 BNA FEP Cas 703, 45 CCH
EPD 37737.
383 Statistical estimate of reliability

View Entire Section
Whenever it is feasible, appropriate statistical estimates should be made of the reliability
of the selection procedure according to that portion of the Guidelines dealing with
content validity studies. 24
An exam lacks reliability if its results would be significantly inconsistent if the same
applicants were to take it again. What is required is not perfect reliability, but a sufficient
degree of reliability to justify the use of the test results. Different aspects of reliability
will be relevant to different types of use. 25
For example, two aspects of reliability deserve consideration in assessing the use of
rank-ordering. The first is the quality of the exam questions. The more skillfully
questions have been formulated, the more likely it is that results on one question will
correspond to results on the other questions and that successive test scores will be
consistent. This will avoid the tendency of scores to vary because of extraneous factors,
such as test administration.
Recommendation: A basic demonstration of this aspect of reliability can easily be

made before the test is administered to job applicants by giving it twice to a sample of
persons generally approximating the characteristics of the population. To avoid
distortion due to recollection, the test given at a later date to such a sample can use
similar but not identical questions. Another indicator of reliability is a technique
known as a split-half correlationdividing each component of the test into equal halves
and observing how consistent an individual's scores were on each half. This technique
can be used with a sample or on actual test results.
The second aspect of reliability concerns what testing experts call the error of
measurement. This is a statistical phenomenon indicating the degree to which scores on
successive tests will be subject to inevitable random variation, no matter how carefully
the test-makers have eliminated or at least lessened the effects of extraneous factors
within their control. The error of measurement can be calculated by use of the standard
deviation concept.
Observation: Although the test-maker can never eliminate the error of measurement,
he or she can minimize its effect for all scores by increasing the number of questions.
Footnotes
Footnote 24. 29 CFR 1607.15C(5).
384 Nonapplication to mental processes

View Entire Section
A selection procedure based on inferences about mental processes cannot be supported
solely or primarily on the basis of content validity. Thus, a content strategy is not
appropriate for demonstrating the validity of selection procedures that purport to measure
traits or constructs, such as intelligence, aptitude, personality, common sense, judgment,
leadership, and spatial ability. 26
For example, an oral exam that was part of an employer's promotion procedure did not
comply with the above rule for determining the validity of a selection procedure by
content validation where the exam made inferences about mental processes, and failed to
define operationally the knowledge, skills, and abilities it supposedly measured. 27
However, a plaintiff's argument that a written test for an entry level personnel position
tested the constructs of common sense and judgment in violation of the requirements of
the Guidelines was rejected and the examination's validity upheld. The content
validation method was sound, in that the test attempted to measure the ability to
communicate in standard written English, to prepare a written job description and to
analyze a recruiting problem in an acceptable form. These were concrete, observable and
quantifiable characteristics, closely simulating actual work behavior and, therefore,
appropriate for evaluation under a content validation procedure. 28
Footnotes
Footnote 26. 29 CFR 1607.14C(1).
Footnote 27. Gilbert v Little Rock (1986, CA8) 799 F2d 1210, 44 BNA FEP Cas 509, 41
38655 and mod (CA8) 867 F2d 1063, 48 BNA FEP Cas 1609, 49 CCH EPD 38654.
FEP Cas 1424, 38 CCH EPD 35802.
385 Application to ranking

View Entire Section
If a user of a selection procedure can show, by a job analysis or otherwise, that a higher
score on a content-valid selection procedure is likely to result in better job performance,
the results may be used to rank persons who score above minimum levels. Such a
selection procedure should measure those aspects of performance that differentiate
among levels of job performance. 29 When justifying the use of rank-ordering, a
difference in scores is more likely to be a meaningful measure of different levels of
knowledge or capability if the scores are broadly distributed over a significant range.
There is a greater reliability of measurement under those circumstances than there would
be if the scores were grouped closely together, where distinctions are more likely to
appear arbitrary. 30 An attempt to use content validation on a test that ranked candidates
for promotion was rejected where the employer presented no evidence that test results
were associated with different levels of job performance. 31
Similarly, another court
refused to permit ranking with respect to black applicants based on the results of a test
governing entry to the employer's training program where the use of ranking had
precluded the admission of qualified blacks to the program in the past, although the court
said that the test was content-valid and the "passing score" for the test was also valid. 32
Footnotes
Footnote 29. 29 CFR 1607.14C(9).
Footnote 30. Cuesta v New York Office of Court Admin. (1989, SD NY) 708 F Supp
583, 49 CCH EPD 38891, affd without op (CA2) 888 F2d 125.
Footnote 31. Firefighters Institute for Racial Equality v St. Louis (1980, CA8) 616 F2d
Footnote 32. Louisville Black Police Officers Organization, Inc. v Louisville (1979, WD
Ky) 511 F Supp 825.
386 Application to training or experience

View Entire Section

When prior training or experience is required, federal agencies will examine the
resemblance between the specific behaviors, products, knowledge, skills, or abilities
gained in the required experience or training and the specific behaviors, products,
knowledges, skills, or abilities required on the job. 33
Where a measure of success in a training program is used as a selection procedure, the
use should be justified on the basis of the relationship between the content of the training
program and the content of the job. 34
The Supreme Court has held that use of a test that seeks to ascertain whether applicants
have the particular level of verbal skill necessary for success in a training school,
completion of which is a requirement of the job, does not violate Title VII. 35
Footnotes
Footnote 33. 29 CFR 1607.14C(6).
Footnote 34. 29 CFR 1607.14C(7).
(5). Construct Validation [387-389]
387 An overview
View Entire Section
A method for justifying the use of a selection procedure that has an adverse impact is
construct validation. 36 To establish construct validation, one must identify general
mental and psychological traits believed necessary for successful job performance and
fashion a qualifying examination to test for the presence of those traits. 37
Construct
validity is demonstrated by data showing that the selection procedures measure the
degree to which candidates have identifiable characteristics that have been determined to
be important for successful job performance. 38 The traits that may be identified
include intelligence, aptitude, personality, common sense, judgment, leadership, and
spatial ability. 39
The Guidelines set forth minimum technical standards for construct- validity studies.
Footnotes
Footnote 36. 29 CFR Part 1607.5A.

(1973, CA2) 482 F2d 1333, 5 BNA FEP Cas 1344, 6 CCH EPD 8755; James v
Stockham Valves & Fittings Co. (1977, CA5) 559 F2d 310, 15 BNA FEP Cas 827, 15
Cas 501, 15 CCH EPD 8019; Kirkland v New York State Dept. of Correctional
Services (1974, SD NY) 374 F Supp 1361, 7 BNA FEP Cas 694, 7 CCH EPD 9268,
affd in part and revd in part on other grounds (CA2) 520 F2d 420, 11 BNA FEP Cas 38,
10 CCH EPD 10357, reh den (CA2) 531 F2d 5, 11 BNA FEP Cas 1253, 10 CCH EPD
10547.
Footnote 38. 29 CFR 1607.16E.
388 Job analysis

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A construct-validity study should include a job analysis that shows the work behaviors
required for successful performance of the job, the critical or important work behaviors in
the job, and an identification of the constructs believed to underlie successful
performance of these critical or important work behaviors. 40
Footnotes
Footnote 40. 29 CFR 1607.14D(2).
389 Need for empirical evidence

View Entire Section
A selection procedure that purports to measure an identified construct should be shown
by empirical evidence to be related to the construct. Empirical evidence should also show
that the construct is related to the performance of critical or important work behaviors.
The relationship between the construct and the related work behaviors should be
supported by empirical evidence from one or more criterion-related studies involving the
job that satisfy the Guidelines' provisions regarding criterion-related studies. 41
A claim of construct validity without a criterion-related study that satisfies the provisions
on such studies will be accepted only when the selection procedure has already been used
in a situation in which a criterion-related study was conducted and met the standards for
transportability of criterion-related validity studies. 42 Thus, even absent a formal
validation study, the physical assessment test given to trainees by a police department
met construct validation standards since it was nationally accepted as a measure of
general fitness, and since it was incontrovertible that police officers needed to be in good
physical condition to perform that job. 43
Footnotes
Footnote 41. 29 CFR 1607.14D(3).
As to the Guidelines' provisions regarding criterion-related studies, see 363-379.
Footnote 42. 29 CFR 1607.14D(4).
As to the standards for transportability, see 379.
Footnote 43. U.S. v Wichita Falls (1988, ND Tex) 704 F Supp 709, 47 BNA FEP Cas
1629.
f. Documentation [390-403]
(1). In General [390-393]
390 Overview of the necessary data

View Entire Section
The Guidelines require users of selection procedures to maintain records that categorize
the subjects of the procedures, 44 show whether there is an adverse impact on any
category of subject from use of the procedures, 45 and provide evidence as to the
validity of the selection procedures. 46 The user should adopt safeguards to ensure that
the required records are used for appropriate purposes, such as for determining adverse
impact or (where required) developing and monitoring affirmative action programs, and
that the records are not used improperly. 47
Footnotes
Footnote 44. 391.
Footnote 45. 392.
Footnote 46. 394-403.

391 Categories of subjects

View Entire Section
Under the Guidelines, records must be kept by sex and the following races and ethnic
groups: blacks (negroes), American Indians (including Alaskan natives), Asians
(including Pacific Islanders), Hispanics (including persons of Mexican, Puerto Rican,
Cuban, Central or South American, or other Spanish origin or culture regardless of race),
whites (caucasians) other than Hispanic, and totals. The race, sex, and ethnic
classifications called for are consistent with the Equal Employment Opportunity Standard
Form 100, Employer Information Report EEO-1 series of reports. 48
Footnotes
392 Evidence of adverse impact

View Entire Section
The Guidelines require employers and other users of selection procedures to maintain,
and have available for inspection, records or other information disclosing the impact its
tests have on the employment opportunities of persons by identifiable race, sex, or ethnic
group; where there are large numbers of applicants and the procedures are administered
frequently, the information may be retained on a sample basis if the sample is appropriate
for the applicant population and adequate in size. 49 The user should maintain and have
available information for each job. If the determination of adverse impact is made using
a procedure other than the "four-fifths rule," 50 a justification consistent with the
general principles for determining adverse impact 51 should be available. 52
Adverse impact determinations should be made at least annually for each race, sex, or
ethnic group that constitutes at least 2% of the labor force in the relevant labor area or
2% of the applicable workforce. 53
Where a total selection process for a job has an adverse impact, the user should maintain
and have available information showing which components have an adverse impact.
Where the total selection process for a job does not have an adverse impact, information
need not be maintained for individual components of the selection process, except where
the process has previously had an adverse impact and that impact has been eliminated.
Under the latter exception, information on individual components of a selection process
should be maintained for the period during which there was adverse impact and for at
least two years after the adverse impact has been eliminated. 54
Where there has been an insufficient number of selections to determine whether there is
an adverse impact from the total selection process for a particular job, the user should
continue to collect, maintain, and have available information on individual components
of the selection process until the information is sufficient to determine that the overall
selection process does not have an adverse impact, or until the job has changed
substantially. 55
Footnotes
Footnote 50. 342.
Footnote 51. 341.
Footnote 52. 29 CFR 1607.15A(2)(a).
Footnote 53. 29 CFR 1607.15A(2)(a).
Footnote 54. 29 CFR 1607.15A(2)(a), (b).
Footnote 55. 29 CFR 1607.15A(2)(c).
393 Effect of failure to maintain adverse impact data

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If an employer or other user of selection procedures fails to maintain data on adverse
impact as required by the Guidelines, 56 the federal civil rights enforcement agencies
may draw an inference of adverse impact of the selection process from such failure
whenever the user has an underutilization of a group in the job category for which the
selection process is used, as compared to the group's representation in the relevant labor
market or, in the case of jobs filled from within, the applicable workforce. 57
Footnotes
Footnote 56. 392.

(2). Evidence of Validity [394-403]
394 Types of data that may be sufficient

View Entire Section
Any one or more of five types of information may satisfy the requirements of the
Guidelines for documentation of evidence of validity. They consist of information
showing:
(1) content validity;
(2) construct validity;
(3) criterion-related validity;
(4) validity of the selection procedure in the user's facility where the validity study
offered to support it was not conducted specifically in regard to that facility; or
(5) why a validity study cannot or need not be performed and why continued use of the
procedure is lawful. 58
Previously written employer or consultant reports of validity or reports describing
validity studies completed before the issuance of the Guidelines are acceptable if they are
complete in regard to the documentation requirements of the Guidelines, or if they
satisfied requirements of Guidelines that were in effect when the validity study was
completed. If they are not complete, the required additional documentation should be
appended. If necessary information is not available, the report of the validity study may
still be used as documentation, but its adequacy will be evaluated with respect to
compliance with the requirements of the current Guidelines. 59
Footnotes
Footnote 58. 29 CFR 1607.15A(3)(a).
Footnote 59. 29 CFR 1607.15A(3)(b).
395 Organization and presentation of data

View Entire Section

The Guidelines require that information purporting to show validity be organized in a
manner to permit direct evaluation of validity. 60 In addition, any statistical results
should be organized and presented in tabular form, if possible. 61 While a compilation
of raw data may be sufficient to meet the minimum requirements for documentation of
the Guidelines, it may not be sufficient to defend a claim in court. For example, an
employer was found to have violated Title VII where it failed to describe the results of
the job analysis contained in its content validity study and presented only raw data that
was not self-explanatory. 62
Footnotes
Footnote 60. 29 CFR 1607.15A(3)(b).
Footnote 61. 29 CFR 1607.15A(3)(c).
396 Essential data

View Entire Section
To be complete, information purporting to show validity must include information
denoted by the Guidelines as "essential," unless the user affirmatively demonstrates
either its unavailability due to circumstances beyond the user's control or special
elements in the user's study that make the information irrelevant. Evidence not so
denoted is desirable, but its absence will not be a basis for considering a report
incomplete. The user should maintain and have available the information called for
under the heading "Source Data," but such information need not be submitted with its
report. 63
Essential data that must be recorded regardless of whether a criterion- related, content, or
construct validity study is involved include:
date and location of any job analysis or review of job information;
an explicit definition of the purpose(s) of the study and the circumstances in which the
study was conducted, as well as a description of existing selection procedures and cutoff
scores, if any;
a detailed description of the selection procedure being validated, including, in the case
of commercially available selection procedures, the title, form, and publisher;
a description of alternative selection procedures investigated, as well as any evidence of

their impact and conclusions regarding their suitability;
the methods considered for use of the selection procedure (e.g., to screen or to rank
candidates), as well as any evidence of their impact, and the rationale for adopting the
method;
the purpose for which the procedure is to be used (e.g., hiring, transfer, promotion) and
evidence of the validity and utility of the procedure as it is to be used;
the name, mailing address, and telephone number of the person who may be contacted
for further information about the validity study;
a description of steps taken to assure the accuracy and completeness of the collection,
analysis, and report of the data and results. 64
Footnotes
Footnote 63. 29 CFR 1607.15A(3)(c).
Footnote 64. 29 CFR 1607.15B-D.
397 Data to include in criterion-related validity studies

View Entire Section
In addition to the data required to be included in all reports of validity studies, 65
criterion-related validity reports must include other data.
First, the description of the selection procedures being validated should include reports
of reliability estimates and how they were established. 66
Second, in regard to the job analysis or review of job information, the report should
include:
a description of the procedure used to analyze the job or group of jobs, or to review the
job information (essential);
where a review of job information results in criteria which may be used without a full
job analysis, the basis for the selection of those criteria (essential);
where a job analysis is required, a complete description of the work behavior(s) or work
outcome(s), and measures of their criticality or importance (essential);
a description of the basis on which the behavior(s) or outcome(s) were determined to be
critical or important, such as the proportion of time spent on the respective behaviors,
their level of difficulty, their frequency of performance, the consequences of error, or

other appropriate factors (essential). Where two or more jobs are grouped for a validity
study, this information should be provided for each of the jobs, and the justification for
the grouping should be provided (essential). 67
Third, data on the criterion measures. The report should include:
the bases for the selection of the criterion measures, together with references to the
evidence considered in making the selection (essential);
a full description of all criteria for which data were collected and means by which they
were observed, recorded, evaluated, and quantified (essential);
if rating techniques are used as criterion measures, the appraisal forms and instructions
to the raters (essential);
all steps taken to ensure that criterion measures are free from factors that would unfairly
alter the scores of members of any group (essential). With respect to rating techniques
used as criterion measures, it is sufficient to describe the appraisal forms and instructions
to the raters in the report and keep on file and available for inspection the actual forms
and instructions. 68
Fourth, in regard to the uses and applications of the selection procedure, the report
should include:
the weight assigned to different parts of the selection procedure, if any, as well as the
validity of the weighted composite (essential);
a description of the way normal expectations of proficiency within the workforce were
determined and the way the cut-off score was determined, if the selection procedure is
used with a cut-off score (essential). 69
Fifth, the report's description of the sample should include:
a description of how the research sample was identified and selected (essential);
the race, sex, and ethnic composition of the sample, including blacks (negroes),
American Indians (including Alaskan natives), Asians (including Pacific Islanders),
Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or South
American, or other Spanish origin or culture regardless of race), whites (caucasians)
other than Hispanic, and totals (essential);
the size of each subgroup (essential);
a description of how the research sample compares with the relevant labor market or
workforce, the method by the which the relevant labor market or workforce was defined,
and a discussion of the likely effects on validity of differences between the sample and
the relevant labor market or workforce (desirable but not essential);
descriptions of educational levels, length of service, and age of sample members
(desirable but not essential). 70
Sixth, data on techniques and results should include:

methods used in analyzing data (essential);
measures of central tendency (e.g., means) and measures of dispersion (e.g., standard
deviations and ranges) for all selection procedures and all criteria with respect to each
race, sex, and ethnic group that constitutes a significant factor in the relevant labor
market (essential);
the magnitude and direction of all relationships between selection procedures and
criterion measures investigated with respect to each relevant race, sex, and ethnic group
and for the total group, unless the groups are too small to obtain reliable evidence
(essential);
statements regarding the statistical significance of results (essential);
a description of any statistical adjustments, such as adjustments for less than perfect
reliability or for restriction of score range in the selection procedure or criterion
(essential);
uncorrected correlation coefficients (essential);
where the statistical technique categorizes continuous data, such as biserial correlation
and the phi coefficient, a description and explanation of the categories and the bases on
which they were determined (essential);
studies of test fairness, where required, 71 including a bibliography of relevant
published studies and copies, adequate abstracts, or summaries of relevant unpublished
studies where test fairness or unfairness has been demonstrated on the basis of other
studies (essential);
where revisions have been made in a selection procedure to assure compatibility
between successful job performance and the probability of being selected, the studies
underlying such revisions (essential). All statistical results should be organized and
presented by relevant race, sex, and ethnic group (essential). It is desirable, although not
essential, to include the rationale by which a selection procedure was determined to be
fair to the groups in question. 72
Seventh, the "Source Data" that should be maintained in regard to a criterion-related
validity study should include:
records showing all pertinent information about individual sample members and raters,
where they are used;
records showing the ratings given to each sample member by each rater;
in the case of individual sample members, the scores on the selection procedures, scores
on criterion measures, age, sex, race or ethnic group status, experience on the specific job
on which the validation study was conducted, education, training, and prior job
experience. However, names and social security numbers should not be included. 73
It is desirable, although not essential, to obtain the user's job titles for the jobs in question
and the corresponding job titles and codes from the U.S. Employment Service's
Dictionary of Occupational Titles. 74
Footnotes
Footnote 65. 396.
Footnote 66. 29 CFR 1607.15B(7).
Footnote 67. 29 CFR 1607.15B(3).
Footnote 68. 29 CFR 1607.15B(5).
Footnote 69. 29 CFR 1607.15B(10).
Footnote 70. 29 CFR 1607.15B(6).
Footnote 71. As to the requirement of a study of fairness, see 375.
Footnote 72. 29 CFR 1607.15B(8).
Footnote 73. 29 CFR 1607.15B(11).
Footnote 74. 29 CFR 1607.15B(4).
398 Data to include in content validity studies

View Entire Section
reports of content validity must include certain other data.
First, data on the job analysis should include:
a description of the method used to analyze the job (essential);
a complete description of the work behavior(s), the associated tasks, and, if the behavior
results in a work product, the work products (essential);
measures of the criticality or importance of the work behavior and the method of
determining the measures (essential);
where the job analysis also identified the knowledges, skills, and abilities used in work
behaviors, an operational definition for each knowledge in terms of a body of learned
information and for each skill and ability in terms of observable behaviors and outcomes,
and the relationship between each knowledge, skill, or ability and each work behavior, as
well as the method used to determine this relationship (essential);

a description of the work situation, including the setting in which work behaviors are
performed, and where appropriate, the manner in which knowledges, skills, or abilities
are used, and the complexity and difficulty of the knowledge, skill, or ability as used in
the work behaviors (desirable but not essential). 76
Second, data on the selection procedure and its content should include a description of
the behaviors measured or sampled by the selection procedure (essential). Also, where
the selection procedure purports to measure a knowledge, skill, or ability, evidence that
the selection procedure measures and is a representative sample of the knowledge, skill,
or ability should be provided (essential). 77
Third, data on the relationship between the selection procedure and the job should
include:
the evidence demonstrating that the selection procedure is a representative work sample,
a representative sample of the work behaviors, or a representative sample of a
knowledge, skill, or ability as used as a part of a work behavior and necessary for that
behavior (essential);
an identification of the work behaviors that each item or part of the selection procedure
is intended to sample or measure (essential);
where the selection procedure purports to sample a work behavior or to provide a
sample of a work product, a comparison of the manner, setting, and level of complexity
of the selection procedure with those of the work situation (essential);
if any steps were taken to reduce adverse impact on a race, sex, or ethnic group in the
content of the procedure or in its administration, a description of those steps (desirable,
but not essential);
an explanation of the establishment of time limits, if any, and how those limits are
related to the speed with which duties must be performed on the job (desirable but not
essential);
measures of central tendency (e.g., means) and measures of dispersion (e.g., standard
deviations), and estimates of reliability for all selection procedures, if available (desirable
but not essential). Such data should be reported for relevant race, sex, and ethnic
subgroups, at least on a statistically reliable sample basis. 78
Fourth, data on the uses and applications of the selection procedures should include:
if the selection procedure is used with a cut-off score, a description of the way normal
expectations of proficiency within the workforce were determined and the way the
cut-off score was determined (essential);
if the selection procedure is to be used for ranking, a description of the evidence
showing that a higher score on the selection procedure is likely to result in better job
performance (desirable but not essential). 79
Footnotes
Footnote 75. 396.
Footnote 76. 29 CFR 1607.15C(3).
Footnote 77. 29 CFR 1607.15C(4).
Footnote 78. 29 CFR 1607.15C(5).
Footnote 79. 29 CFR 1607.15C(7).
399 Data to include in construct validity studies

View Entire Section
reports of construct validity must include certain other data.
First, data on the constructs should include:
a clear definition of the constructs that are believed to underlie a successful performance
of the critical or important work behaviors, including the levels of construct performance
relevant to the jobs for which the selection procedure is to be used (essential);
a summary of the position of the construct in the psychological literature, or, in the
absence of such a position, a description of the way the definition and measurement of
the construct was developed and the psychological theory underlying it (essential);
any quantitative data that identify or define the job constructs, such as factor analyses
(essential). 81
Second, in regard to the job analysis, the report should include:
a description of the method used to analyze the job (essential);
a complete description of the work behaviors and, to the extent appropriate, work
outcomes and measures of their criticality or importance (essential);
a description of the basis on which the behaviors or outcomes were determined to be
important, such as their level of difficulty, their frequency of performance, the
consequences of error, or other appropriate factors (essential);
where jobs are grouped or compared for the purpose of generalizing validity evidence, a
description of the work behaviors and work products for each of the jobs, and
conclusions concerning the similarity of the jobs in terms of observable work behaviors
or work products (essential). 82
Third, data on the selection procedure should include:

the research evidence of the relationship between the selection procedure and the
construct, such as factor structure (essential);
measures of central tendency, variability, and reliability of the selection procedure
(essential). Whenever feasible, such measures should be provided separately for each
relevant race, sex, and ethnic group. 83
Fourth, data on the selection procedure's relationship to job performance should include:
the criterion-related studies and other empirical evidence of the relationship between the
construct measured by the selection procedure and the related work behaviors for the job
or jobs in question (essential);
documentation of the criterion-related studies sufficient to satisfy the rules described in
396 and in 397 relating to such studies, unless these studies were conducted prior
to the effective date of the Guidelines (essential);
where a study pertains to a group of jobs, and, on the basis of the study, validity is
asserted for a job in the group, a description of the observed work behaviors and the
observed work products for each of the jobs (essential);
a description of any other evidence used in determining whether the work behaviors in
each of the jobs is the same (essential). 84
Fifth, data on the uses and applications of the selection procedure should include:
if different weights are assigned to different parts of the selection procedure, the weights
and the validity of the weighted composite (essential);
if the selection procedure is used with a cut-off score, a description of the way normal
expectations of proficiency within the workforce were determined and the way the
cut-off score was determined (essential). 85
It is desirable, although not essential, to obtain the user's job titles for the jobs in question
and the corresponding job titles and codes from the U.S. Employment Service's
Dictionary of Occupational Titles. 86
Footnotes
Footnote 80. 396.
Footnote 81. 29 CFR 1607.15D(3).
Footnote 82. 29 CFR 1607.15D(4).
Footnote 83. 29 CFR 1607.15D(6).
Footnote 84. 29 CFR 1607.15D(7).

Footnote 85. 29 CFR 1607.15D(9).
Footnote 86. 29 CFR 1607.15D(5).
400 Data to include if selection procedure is used to evaluate candidates for future
jobs
View Entire Section
If a selection procedure is used to evaluate candidates for jobs at a higher level than those
for which they will initially be employed, the user should supply data that satisfies the
documentation requirements with respect to the higher-level job or jobs, and it is
desirable, though not essential, for the user to also supply:
a description of the job progression structure, formal or informal;
data showing how many employees progress to the higher-level job and the length of
time needed to make this progression;
an identification of any anticipated changes in the higher-level job;
if the test measures a knowledge, skill, or ability, evidence that the knowledge, skill, or
ability is required for the higher-level job and the basis for the conclusion that the
knowledge, skill, or ability is not expected to develop from the training or experience on
the job. 87
Footnotes
Footnote 87. 29 CFR 1607.15G.
401 Data to include when evidence of validity comes from other sources
View Entire Section
When the validity of a selection procedure is supported by studies not done by the user,
the user will be expected to determine whether the evidence of validity from the original
study or studies was compiled in a manner that complied with the Guidelines. 88
In addition, in regard to any supporting criterion-related validity studies, the user should
supply:
a description of the important job behaviors of the user's job and the basis on which the
behaviors were determined to be important (essential);
a full description of the basis for determining that these important work behaviors are
the same as those of the job in the original study or studies (essential);
a full description of the basis on which the criteria used in the original studies are
determined to be relevant for the user (essential);
a description of the similarity of important applicant pool or sample characteristics
reported in the original studies to those of the user (essential);
a description of the comparison between the race, sex, and ethnic composition of the
user's relevant labor market and the sample in the original validity studies (essential);
a full description showing that the use to be made of the selection procedure is
consistent with the findings of the original validity studies (essential);
a bibliography of reports of validity of the selection procedure for the job or jobs in
question (essential);
where any of the studies included an investigation of test fairness, the results of this
investigation (essential);
a description of reports of validity that are not commonly available (essential);
if unpublished studies are the sole source of validity evidence, a detailed description of
those studies (essential). As an alternative to supplying detailed descriptions of studies
that are not commonly available or are unpublished, the user may attach copies of the
studies. 89
When any of the supporting studies are content validity studies, additional data that the
user should supply include the data described in 381, 396, and in 398 relating to
such studies. 90
When any of the supporting studies are construct validity studies, additional data that the
user should supply include the data described in 388, 396, and in 398 relating to
such studies. 91
Where a selection procedure has been validated through a cooperative study, the user
should supply data showing that the study satisfies the requirements for use of other
validity studies, 92 and data as described above for supporting the validity of the
selection procedure by studies not done by the user (essential). 93
Footnotes
Footnote 88. 390-399.
Footnote 89. 29 CFR 1607.15E(1).

Footnote 90. 29 CFR 1607.15E(2).
Footnote 91. 29 CFR 1607.15E(3).
Footnote 92. 321, 323, 379.
402 Data to include for interim selection procedure

View Entire Section
If a selection procedure is being used on an interim basis because the procedure is not
fully supported by the required evidence of validity, the user should maintain and have
available:
substantial evidence of validity for the procedure (essential);
a report showing the date the study to gather the additional evidence required for an
appropriate validity study commenced, the estimated completion date of the study, and a
description of the data to be collected (essential). 94
Footnotes
Footnote 94. 29 CFR 1607.15H.
403 Special rule for small businesses and other small entities
View Entire Section
The Guidelines exempt small employers and other small entities from the detailed
documentation requirements described in 395-402.
Employers that employ 100 or fewer employees, and other users of selection procedures
not required to file EEO-1 reports, may satisfy the Guidelines' requirements on evidence
of validity if they maintain and have available records showing, for each year:
the number of persons hired, promoted, and terminated for each job, by sex, race, and
national origin;
the number of applicants for hire and promotion by sex, race, and national origin;
the selection procedures utilized (either standardized or not standardized). 95
These records should be maintained for each race or national origin group constituting
more than 2% of the labor force in the relevant labor area. However, it is not necessary
to maintain records by race or national origin if one race or national origin group in the
relevant labor area constitutes more than 98% of the labor force in the area. If the user
has reason to believe that a selection procedure has an adverse impact, the user should
maintain any available evidence of validity for that procedure (e.g., evidence supplied by
test publishers or other professional literature). 96
Footnotes
Footnote 95. 29 CFR 1607.15A(1).
Footnote 96. 29 CFR 1607.15(A)(1).
g. Selection of Apprentices for Registered Programs [404-411]
404 An overview
View Entire Section
The National Apprenticeship Act of 1937 requires the Labor Department (DOL) to
formulate standards to protect apprentices. 97
Under the DOL's standards for the registration of apprenticeship programs, the program
sponsor must provide in its affirmative action plan that it will follow one of the methods
set forth for selecting apprentices. 98 The regulations describe three selection methods
the sponsor may use. It may also use any other method, provided it secures the DOL's
approval prior to implementation of the other method. 99 The selection methods
described in the regulations include: (1) selection on the basis of rank from a pool of
eligible applicants; 1 (2) random selection from a pool of eligible applicants; 2 and (3)
selection from a pool of current employees. 3
Where required, 4 the program sponsor must also establish percentage goals and
timetables for the admission of minorities and women into the pool of eligibles. The
sponsor will be deemed in compliance with its commitments in this regard if it meets its
goals or timetables or if it makes a good-faith effort to meet such goals and timetables. If
it fails to do so, it will be given an opportunity to demonstrate that it has made every
"good-faith effort" to meet its commitments. All of the sponsor's actions will be
reviewed and evaluated in determining whether good-faith efforts have been made. 5
Footnotes
As to the requirements of the National Apprenticeship Act, generally, see 902 et seq.
Footnote 99. 410.
Footnote 1. 407.
Footnote 2. 408.
Footnote 3. 409.
Footnote 4. As to affirmative action requirements in apprenticeship programs, see 692
et seq.
Footnote 5. 29 CFR 30.5(b)(1).
405 Creation of pool of eligible applicants

View Entire Section
Where the program sponsor intends to select apprentices from a pool of eligible
applicants, the pool must be created from applicants who meet minimum legal working
age or additional qualification standards. 6 Any additional standards must conform with
certain requirements. The requirements and procedures for determining those standards
must be stated in detail and provide criteria for the specific factors and attributes to be
considered in evaluating applicants. The score required under each standard must also be
specified, and all standards and scores must be directly related to job performance, as
shown by a significant statistical and practical relationship between the scores and
performance in the apprenticeship program.
For example, any aptitude test required for admission to a pool of eligible applicants
must be directly related to job performance, as shown by significant statistical and
practical relationships between the aptitude test score, the score required for admission to
the pool, and performance in the apprenticeship program. These requirements also apply
to aptitude tests utilized by a program sponsor that are administered by a state
employment agency, a private employment agency, or any other person, agency, or
organization engaged in the selection or evaluation of personnel. A national test
developed and administered by a national joint apprenticeship committee will not be
approved by the Department of Labor unless it meets the foregoing requirements. Other
selection procedures considered by the regulations are educational requirements 7 and
oral interviews. 8
In determining relationships between scores and performance, the sponsor must follow
the procedures set forth in the Uniform Guidelines on Employee Selection Procedures. 9
Required qualifications must be considered separately, so that the failure of an applicant
to attain the specified score under a single qualification standard disqualifies him from
admission to the pool. 10
Footnotes
Footnote 6. 29 CFR 30.5(b)(1)(iii).
Footnote 7. As to educational requirements for registered apprenticeship programs, see
439.
Footnote 8. As to oral interviews for registered apprenticeship programs, see 581.
Footnote 9. As to the Uniform Guidelines, see 317 et seq.
Footnote 10. 29 CFR 30.5(b)(1).
406 Notification of selection or rejection for pool

View Entire Section
All applicants who meet the requirements for admission into the eligibility pool must be
notified. In addition, the program sponsor must give each rejected applicant notice of his
rejection, including the reasons for his rejection, the requirements for admission to the
pool, and the appeal rights available to him. 11
Footnotes
Footnote 11. 29 CFR 30.5(b)(1).
407 Selection from applicants' pool on basis of rank

View Entire Section
A sponsor may select apprentices from a pool of eligible applicants on the basis of the
rank order of scores of applicants on one or more qualification standards where there is a
significant statistical and practical relationship between rank order of scores and
performance in the apprenticeship program. In determining such relationship, the
sponsor must follow the procedures set forth in the Uniform Guidelines on Employee
Selection Procedures. 12
Footnotes
Footnote 12. 29 CFR 30.5(b)(1).
As to the Uniform Guidelines, see 317 et seq.
408 Random selection from applicants' pool

View Entire Section
A sponsor may select apprentices from a pool of eligible applicants on a random basis.
However, this method is subject to approval by the Department of Labor. Supervision of
the selection process must be by an impartial person or persons selected by the sponsor,
but not associated with the administration of the apprenticeship program. The time and
place of the selection and the number of apprentices to be selected must be announced.
The place of the selection must be open to all applicants and the public. The names of
apprentices drawn by this method must be posted immediately following the selection at
the program sponsor's place of business. The sponsor adopting this method of selecting
apprentices must meet the requirements of the regulations relating to the creation of the
pool of eligibles, 13 the establishment of goals and timetables for the admission of
minorities and women into the pool of eligibles, 14 and the sponsor's compliance with
its affirmative action obligations 15 under the regulations. 16
Footnotes
Footnote 13. 405.
Footnote 14. 404.
Footnote 15. As to affirmative action requirements in apprenticeship programs, see
692 et seq.
Footnote 16. 29 CFR 30.5(b)(2).
409 Selection from pool of current employees

View Entire Section

Where selection is made from a pool of current employees, the sponsor may select
apprentices in a manner prescribed by a collective bargaining agreement or by the
sponsor's established promotion policy. A sponsor adopting this method of selection
must establish goals and timetables for the selection of minority and female apprentices,
unless it concludes, in accordance with the provisions of the regulations, that it does not
have deficiencies in its utilization of minorities and/or women in the apprenticeship of
journeyperson crafts represented by the program. The sponsor's compliance with its
obligations in this regard will be determined in the same manner as in the case of
selection of apprentices from a pool of eligible applicants. 17
Footnotes
Footnote 17. 29 CFR 30.5(b)(3).
As to selection from a pool of eligible applicants, generally, see 404.
410 Alternative selection methods

View Entire Section
A sponsor may select apprentices by its own method, as long as it submits to the
Department of Labor a detailed statement of the selection method, along with the rest of
its written affirmative action program, including, where required, 18 its percentage
goals and timetables for the selection of minority and/or female applicants for
apprenticeship and its written analysis on which such goals and timetables, or lack
thereof, are based. The regulations require that apprentices be selected on the basis of
objective and specific qualification standards. Examples of such standards are fair
aptitude tests, school diplomas, age requirements, occupationally essential health
requirements, fair interviews, school grades, and previous work experience.
In applying qualification standards, the sponsor must meet the requirements of the
Uniform Guidelines on Employee Selection Procedures. 19
Determination as to the sponsor's compliance with its obligations under the regulations
will be made in the same manner as where selection is made from a pool of eligible
applicants. 20
Where a sponsor, despite its good-faith efforts, fails to meet its goals and timetables
within a reasonable period of time, it may be required to make appropriate changes in its
affirmative action program in order to attain its goals. The sponsor may also be required
to develop and adopt an alternative selection method, including a method prescribed by
the Department, where failure of the sponsor to meet its goals is attributable in
substantial part to the selection method. Where such failure is attributable in substantial
part to its use of a qualification standard that has adversely affected the opportunities of
minorities and/or women for apprenticeship, it may be required to demonstrate that the
qualification standard is directly related to job performance. 21
Footnotes
Footnote 19. As to the Uniform Guidelines, generally, see 317 et seq.
Footnote 20. 29 CFR 30.5(b)(4).
Footnote 21. 29 CFR 30.5(b)(4).
411 Eligibility lists; public notice

View Entire Section
Go to Supplement
A sponsor choosing its own selection method, or adopting a method that involves
selecting apprentices from a pool of eligible applicants, as opposed to selection from a
pool of current employees, that determines that there are fewer minorities and/or women
on its existing lists of eligibles than would reasonably be expected, based on the required
analysis, 22 must discard all existing eligibility lists. New eligibility pools must be
established and lists of eligibility pools must be posted at the sponsor's place of business.
Sponsors must establish a reasonable period of not less than two weeks for accepting
applications for admission to an apprenticeship program, and there must be at least 30
days' notice in advance of the earliest date for application for admission to the
apprenticeship program.
Applicants who have been placed in a pool of eligibles are to be retained on the list of
eligibles for two years. Applicants may be removed from the list at an earlier date at
their request or following their failure to respond to an apprentice job opportunity given
by registered return receipt mail notice. It is the responsibility of the applicant to keep
the sponsor informed of his current mailing address.
Applicants who have been accepted in the program must be afforded a reasonable period
of time in light of the customs and practices of the industry for reporting for work. All
applicants are to be treated equally in determining such period of time.
A sponsor may restore to the list of eligibles an applicant who has been removed from the
list at his request or who has failed to respond to an apprenticeship job opportunity. 23
411 ----Eligibility lists; public notice [SUPPLEMENT]
Case authorities:
Of 8 proposals concerning drug testing, seven were nonnegotiable as interfering with
management's right to discipline, to determine its internal security practices, to assign
work, or inconsistent with agency- wide guidelines, but proposal that would preclude
agency from taking disciplinary action against employee who tests positive for illegal
drugs until employee has exhausted all grievance arbitration and appeal procedures was
negotiable procedure. International Federation of Professional and Technical Engineers
and U.S. Dept. of Navy, Norfolk Naval Shipyard, Portsmouth, VA (1994) 49 FLRA No.
26.
Footnotes
Footnote 22. 697.
2. Proof in Job Requirements Cases, In General [412- 414]
412 Generally
View Entire Section
Qualifications that an employer establishes for particular jobs are regulated by Title VII,
the early Civil Rights Acts, the ADEA, the ADA, Executive Order 11246, and the
Rehabilitation Act. Proof in such cases is controlled not only by the statute under which
the case arises, but also by the type of requirement imposed, and the theory of
discrimination that is invoked.
Job requirements are criteria for getting and keeping particular jobs. Thus, they are
controlled by those federal and state laws that prohibit discrimination in hiring, firing,
and terms and conditions of employment. These include:
Title VII of the Civil Rights Act of 1964, 24 as amended by the Civil Rights Act of
1991; 25
the Americans with Disabilities Act (ADA), with respect to job qualifications and
employment testing and administration; 28
Executive Order 11246 (government contractors); 29
Section 504 of the Rehabilitation Act of 1973 (handicap discrimination by recipients of

federal funds). 30
Requirements for entrants to registered apprenticeship programs are also subject to
regulations issued under the National Apprenticeship Act of 1937. 31
Job requirements may relate to getting hired or to obtaining training or particular
assignments, transfers, or promotions. As such, particular job requirements may qualify
as "employee selection procedures" subject to the Uniform Guidelines on Employee
Selection Procedures. 32
Observation: Whether particular job requirements are subject to the Guidelines is

extremely important to employers because of the time and expense involved in
performing necessary validation studies. The applicability of the Guidelines to
particular job requirements is discussed in appropriate sections throughout this
division. See, for example, 428 et seq., relating to education, skill, and experience
requirements. For a complete discussion of selection procedures under the Guidelines,
see 316 et seq.
Particular job requirements may also be pivotal in discharge or discipline cases in that a
failure to satisfy them is used as a justification for adverse action against an employee.
Job requirements in this context are discussed in this division. However, matters
constituting grounds for discharge or discipline exclusively (for example, failure to
satisfy production quotas and insubordination) are discussed elsewhere. 33
Footnotes
Footnote 24. 42 USCS 2000e-2(k)(1).
Footnote 25. P.L. 102-166, 105.
EPD 7952, on remand (ND Ga) 7 BNA FEP Cas 1225, affd (CA5) 493 F2d 765, 7
BNA FEP Cas 1228, 7 CCH EPD 9361, reh den (CA5) 495 F2d 1372; Blount v Xerox
Corp. (1975, ND Cal) 405 F Supp 849, 11 BNA FEP Cas 1222; Jackson v Curators of
University of Missouri (1978, ED Mo) 456 F Supp 879, 18 BNA FEP Cas 105, 18 CCH
EPD 8926.
Footnote 27. Coates v National Cash Register Co. (1977, WD Va) 433 F Supp 655.
Footnote 28. 42 USCS 12112(b)(3), 12112(b)(6), 12112(b)(7).
As to testing and selection procedures regulated by the ADA, generally, see 332 et
seq.
Footnote 29. 41 CFR 60-20.3.
Footnote 31. 29 USCS 50 et seq.; 29 CFR 30.5.

413 Proving the plaintiff's case

View Entire Section
Go to Supplement
Job requirements, if unfairly or unevenly applied to particular individuals or groups, are
subject to challenge on a disparate treatment theory. Disparate treatment with respect to
particular requirements is discussed in appropriate sections throughout this division. For
a full discussion of the general principles involved in the disparate treatment theory, see
2706 et seq.
For the most part, however, job requirements are challenged on a disparate impact
theory; that is, the plaintiff must establish a prima facie case by showing that the
requirement in question has a disproportionate impact on persons protected by job
discrimination law. A significant disproportionate impact is normally shown with
reference to the pertinent geographical area. 34 For example, in using the geographical
method, the Supreme Court has found that an employer's high school requirement had an
adverse impact on blacks when almost three times more whites than blacks in the state
were high school graduates. 35 The Supreme Court has also found that national
statistics were sufficient to demonstrate that another employer's height and weight
requirements had an adverse impact on women, because there was no reason to believe
that the height and weight characteristics of men and women in that state "differ
markedly from those of the national population." 36
An intent to discriminate is not a necessary element of a successful disparate impact
claim involving a job requirement. It is only necessary that use of the requirement have a
discriminatory result and that this use be deliberate and not accidental. 37
An employer's job requirement is not a business necessity if it can be demonstrated that
employees who do not meet the requirement have been performing the job in question
successfully. 38
Also, under amendments made to Title VII by the Civil Rights Act of
1991, 39 a job requirement is not a business necessity under Title VII if the complainant
demonstrates that the employer refused to adopt a less discriminatory alternative
employment practice. 40
Disparate impact with respect to particular requirements is further discussed in
appropriate sections throughout this division. Furthermore, the general principles
involved in the disparate impact theory are fully discussed elsewhere. 41
413 ----Proving the plaintiff's case [SUPPLEMENT]
Case authorities:
Although summary judgment should be granted cautiously in employment discrimination
cases, there are occasions when such disposition is appropriate; summary judgment may
be entered if plaintiff fails to raise any issue of fact indicative of racially discriminatory
conduct by defendant. Pippen v National Pizza Co. (1993, ND Ala) 64 BNA FEP Cas
233.
Footnotes
248.
849, 3 BNA FEP Cas 175, 3 CCH EPD 8137, on remand (MD NC) 6 BNA FEP Cas 7,
5 CCH EPD 8017.
Footnote 37. Spurlock v United Airlines, Inc. (1972, CA10) 475 F2d 216, 5 BNA FEP
Cas 17, 5 CCH EPD 7996.
Footnote 38. Pettway v American Cast Iron Pipe Co. (1978, CA5) 576 F2d 1157, 17
BNA FEP Cas 1712, 17 CCH EPD 8470, 25 FR Serv 2d 1165, reh den (CA5 Ala) 581
F2d 267 and cert den 439 US 1115, 59 L Ed 2d 74, 99 S Ct 1020, 18 BNA FEP Cas
1430, 18 CCH EPD 8825.
Footnote 39. P.L. 102-166, 105.
As to an employer's duty to consider a less discriminatory alternative selection procedure,
see 356.
414 Proving the defendant's case

View Entire Section
Go to Supplement
A prima facie disparate treatment case may be overcome by proving that the jobs in
question require special skills or training, that the employer has been consistent in
insisting on such requirements, and that he has not waived the requirements for whites or
men while insisting on them for minority or female employees. 42 However, a
demonstration that an employment practice is required by business necessity may not be
used as a defense against a claim of intentional discrimination under Title VII, 43 as
amended by the Civil Rights Act of 1991. 44
Once a plaintiff establishes a prima facie disparate impact case, the burden falls on the
employer to show that its qualification is job- related. 45 For a requirement to be
job-related, it must bear a demonstrable relationship to successful performance of the job
for which it is used. 46 It is not sufficient simply to show the absence of a
discriminatory motive. 47 As amended by the Civil Rights Act of 1991, 48 Title VII
expressly requires the employer to prove that a job requirement is "job related" once the
complainant has shown that it causes a disparate impact. 49
The necessary degree of job-relatedness varies with the job. When a job requires a small
amount of skill and training and the consequences of hiring an unqualified applicant are
insignificant, the courts examine closely any pre-employment standard or criteria that
discriminates against minorities; in such a case, the employer has a heavy burden to
demonstrate to the court's satisfaction that his employment criteria are job-related.
Where a job requires a high degree of skill, however, the economic and human risks
involved in hiring an unqualified applicant are great, the employer bears a
correspondingly lighter burden to show that his criteria are job-related. 50 There is a
narrow class of job requirements for which no evidentiary showing of job-relatedness by
the employer is needed. It includes, for instance, a lack of prior unlawful conduct against
the employer and a good back for a manual laborer's job. Such facially neutral criteria
are considered so manifestly job-related that they cannot be "the kind of artificial,
arbitrary, and unnecessary barriers" Title VII prohibits, even though they might
disproportionately affect a protected class. 51
414 ----Proving the defendant's case [SUPPLEMENT]
Case authorities:
Borough is entitled to summary judgment in 1983 action by police force applicants,
where borough announced police officer exam, conducted written and oral tests, and
made eligibility list which excluded some applicants, because borough's public service
commission followed its own rules in testing and evaluation, mathematical errors cited by
applicants would not have changed results of tests, and evidence does not support
applicants' theory that commissioners and police chief conspired to deprive them of
positions on police force. Schmidt v Borough of Stroudsburg (1993, MD Pa) 841 F Supp
639, later proceeding (CA3 Pa) 17 F3d 1431.
Footnotes
Footnote 42. Buckner v Goodyear Tire & Rubber Co. (1972, DC Ala) 339 F Supp 1108,
1165, 5 CCH EPD 8625.
Footnote 43. 42 USCS 2000e- 2(k)(2).
Footnote 44. P.L. 102-166, 105.

Cas 17, 5 CCH EPD 7996.
Footnote 46. Pettway v American Cast Iron Pipe Co. (1974, CA5) 494 F2d 211, 30 ALR
Fed 184, reh den (CA5) 494 F2d 1296 and later app (CA5) 576 F2d 1157, reh den (CA5)
581 F2d 267; Head v Timken Roller Bearing Co. (1973, CA6) 486 F2d 870, 6 BNA FEP
Cas 813, 6 CCH EPD 8876, 17 FR Serv 2d 1318.
Footnote 47. Duhon v Goodyear Tire & Rubber Co., Beaumont Plant (1974, CA5) 494
F2d 817, 8 BNA FEP Cas 507, 7 CCH EPD 9387; Rule v International Asso. of Bridge,
Structural & Ornamental Ironworkers, etc. (1977, CA8) 568 F2d 558, 16 BNA FEP Cas
35, 15 CCH EPD 7943, 24 FR Serv 2d 694, mod on other grounds (CA8) 17 BNA FEP
Cas 1206, 17 CCH EPD 8409.
Footnote 48. P.L. 102-166, 105.
Footnote 49. 42 USCS 2000e-2(k).
For a discussion of how the Civil Rights Act amendments to Title VII incorporated the
earlier Supreme Court definitions of "job relatedness" and "business necessity," see
344.
Footnote 50. Townsend v Nassau County Medical Center (1977, CA2) 558 F2d 117, 15
Ct 742, 16 BNA FEP Cas 501, 15 CCH EPD 8018; Spurlock v United Airlines, Inc.
(1972, CA10) 475 F2d 216, 5 BNA FEP Cas 17, 5 CCH EPD 7996; EEOC Decision
No. 76-31 (1975) CCH EEOC Dec 6624.
Footnote 51. Smith v Olin Chemical Corp. (1977, CA5) 555 F2d 1283, 15 BNA FEP Cas
290, 14 CCH EPD 7702, 36 ALR Fed 709.
3. Types of Selection Criteria [415-556]
a. In General; Subjective Criteria [415-419]
415 Generally
View Entire Section
Employers' or their supervisors' subjective evaluations of an employee's or applicant's
merits or ability for a particular job have often been the subject of job discrimination
challenges.
The use of subjective criteria does not per se violate Title VII. 52 The law does not
preclude employers from considering previously announced, nondiscriminatory,
subjective criteria, as long as those factors are shown to be related to job performance. 53
Subjective criteria, like any other employment practices shown to have a disparate impact
on a group protected by Title VII, 54 must be shown by the employer to be job-related
and consistent with business necessity in order to avoid a violation of Title VII, 55 as
amended by the Civil Rights Act of 1991. 56
Furthermore, subjective criteria are closely scrutinized by the courts, 57 because an
over-emphasis on subjective evaluations in employment decisions tends to favor
incumbent workers at the expense of minorities 58 and offers a ready mechanism for
discrimination. 59 Accordingly, employment decisions based on subjective standards
carry little weight in rebutting discrimination charges. Elusive, purely subjective
standards must give way to objectivity if statistical indicia of discrimination are to be
refuted. 60 However, a court must consider an employer's use of subjective criteria
with the other facts and circumstances of the case. Defining the issue in one case as "how
much subjectivity is permissible," a court held that the employer had not exercised so
much subjectivity as to engage in a discriminatory practice, particularly in light of its
long-term affirmative action efforts. 61
Recommendation: Although some subjectivity may be desirable or even necessary,

as a matter of self-protection employers should eliminate subjective factors from their
evaluation processes whenever possible. In the place of subjective criteria, employers
should implement and communicate to workers written, objective standards of
performance designed to further company productivity. 62
Footnotes
S Ct 19, 11 BNA FEP Cas 576, 10 CCH EPD 10409; Rich v Martin Marietta Corp.
(1979, DC Colo) 467 F Supp 587, 22 BNA FEP Cas 409, 20 CCH EPD 30111.
Footnote 53. United States v Hazelwood School Dist. (1976, CA8) 534 F2d 805, 12 BNA
FEP Cas 1161, 11 CCH EPD 10854, vacated on other grounds 433 US 299, 53 L Ed
Footnote 55. 42 USCS 2000e-2(k).
Footnote 56. P.L. 102-166, 105.
Law Reviews: Civil RightsEmployment DiscriminationDisparate Impact Analysis
May be Applied in Title VII Employment Discrimination Suit to Review Hiring or
Promotion Decisions Based on Subjective CriteriaWatson v Forth Worth Bank &
Trust, 108 S Ct 2777. 19 Cumb L Rev 631 (1988/1989)
Footnote 57. Mopkins v St. Louis Die Casting Corp. (1976, DC Mo) 423 F Supp 132, 14
460, 15 CCH EPD 8033.
Footnote 58. Roman v ESB, Inc. (1976, CA4) 550 F2d 1343, 14 BNA FEP Cas 235, 13
CCH EPD 11285, 22 FR Serv 2d 834; Senter v General Motors Corp. (1976, CA6) 532
F2d 511, 12 BNA FEP Cas 451, 11 CCH EPD 10741, 21 FR Serv 2d 285, cert den 429
Footnote 59. Rowe v General Motors Corp. (1972, CA5) 45 F2d 348, 4 BNA FEP Cas
445, 4 CCH EPD 7689; Pettway v American Cast Iron Pipe Co. (1974, CA5) 494 F2d
211, 7 BNA FEP Cas 1115, 7 CCH EPD 9291, 18 FR Serv 2d 1016, 30 ALR Fed 184.
Footnote 60. Brown v Gaston County Dyeing Machine Co. (1972, CA4) 457 F2d 1377, 4
BNA FEP Cas 514, 4 CCH EPD 7737, cert den 409 US 982, 34 L Ed 2d 246, 93 S Ct
Cas 1257, 45 CCH EPD 37681.
Footnote 62. If the use of subjective criteria is unavoidable, there are various measures
the employer can take to avoid bias. These are discussed in 419.
416 Type of work may affect use of subjective criteria

View Entire Section
The degree of subjectivity permitted in an employer's decisionmaking process may vary
with the type of job involved. 63
The application of subjective criteria to "blue collar" jobs that can be evaluated and
described in objective, quantitative terms is particularly vulnerable to challenge under
Title VII because other, objective measures are readily available to assess the employer's
legitimate business needs, and to gauge the employee's performance. With regard to
"blue collar" jobs, one court held that Title VII imposed an affirmative duty on an
employer, with the assistance and cooperation of the union representing its employees, to
devise and implement objective criteria for determining which employees would be
promoted or transferred to fill vacancies. 64
However, courts have been more tolerant of subjective criteria for "white collar" jobs, or
jobs that are not susceptible to quantifiable analysis and description. One court declared
that hiring and promotion decisions for supervisory and managerial jobs cannot
realistically be made using objective standards alone. 65
Another court, applying Title
VII, has recognized that "discretionary, subjective judgments" governing the partnership
process are permissible if applied in a nondiscriminatory fashion without regard to race,
color, religion, sex, or national origin. 66
Observation: In its historic Hishon case, 67
the Supreme Court reversed an

Eleventh Circuit decision that, in part, refused to bring a law firm's discretionary
partnership decisions within the reach of Title VII. However, although ruling that
partnership decisions may be subject to Title VII in appropriate circumstances, the
Court did not expressly discuss subjectivity as an evaluative tool.
In another white collar area, teaching, where relations between a university and its
faculty are not typical of the employer-employee relationships found in industry or
commerce, judicial applications of Title VII have been restrained. 68 Promotion
decisions in academia necessarily involve matters of professional judgment into which
courts have been reluctant to intrude. As long as promotional criteria have been
reasonably related to the professional duties of the academic position sought and have
been applied through prescribed or settled procedures fairly and reasonably followed,
some courts have refused to substitute their judgments for those of university officials. 69
Other courts, however, have begun to express concern that the "hands off" approach to
university tenure decisions may have gone too far. It has been argued that judicial
deference to the professional judgment of faculty should not result in judicial abdication
of the responsibility entrusted to the courts by Congress when educational institutions
were brought within the purview of Title VII. 70
Footnotes
Footnote 63. Saracini v Missouri P. R. Co. (1977, ED Ark) 431 F Supp 389, 14 BNA
FEP Cas 1604, 15 CCH EPD 7836; Canty v Olivarez (1978, ND Ga) 452 F Supp 762,
22 BNA FEP Cas 513.
Footnote 64. United States v Jacksonville Terminal Co. (1971, CA5) 451 F2d 418, 3
BNA FEP Cas 862, 4 BNA FEP Cas 2, 3 CCH EPD 8324, cert den 406 US 906, 31 L
Footnote 66. Lucido v Cravath, Swaine & Moore (1977, DC NY) 425 F Supp 123, 14
Footnote 67. Hishon v King & Spalding (1984) 467 US 69, 81 L Ed 2d 59, 104 S Ct
Footnote 68. Equal Employment Opportunity Com. v Tufts Institution of Learning (1975,
DC Mass) 421 F Supp 152, 15 BNA FEP Cas 495, 10 CCH EPD 10572.
Annotation: Application to tenured positions in educational institutions of provisions
of Civil Rights Act of 1964, as amended (42 USCS 2000e et seq.) prohibiting
Footnote 69. Equal Employment Opportunity Com. v Tufts Institution of Learning (1975,
DC Mass) 421 F Supp 152, 15 BNA FEP Cas 495, 10 CCH EPD 10572; Cussler v
University of Maryland (1977, DC Md) 430 F Supp 602, 15 BNA FEP Cas 1299, 16
CCH EPD 8215; Johnson v University of Pittsburgh (1977, WD Pa) 435 F Supp 1328,
Footnote 70. First CircuitSweeney v Board of Trustees (1978, CA1) 569 F2d 169, 16
BNA FEP Cas 378, 15 CCH EPD 8030, vacated on other grounds 439 US 24, 58 L Ed
Second CircuitPowell v Syracuse University (1978, CA2) 580 F2d 1150, 17 BNA FEP
Fifth CircuitJepsen v Florida Bd. of Regents (1980, CA5) 610 F2d 1379, 21 BNA FEP
Cas 1700, 22 CCH EPD 30624, 63 ALR Fed 881.
The special concerns involved in tenure decisions are discussed in the context of
promotions at 920 et seq.
417 Validity of particular subjective criteria

View Entire Section
Particular personal characteristics or traits have been upheld by the courts as permissible
job criteria when applied evenhandedly and in a nondiscriminatory fashion.
For example, an employer's requirement of an "ability to command respect and maintain
discipline" for a lifeguard job survived a sex discrimination challenge. 71 Where there
was no evidence that the use of so-called "highly masculine" characteristics, such as
having "lots of drive" and possessing "considerable vigor," to describe commission
salespersons in an employer's testing manual had a negative impact on the selection of
women for that position, an employer also was held not to have violated Title VII. 72
Furthermore, the "ability to work effectively with others" was held to be a
nondiscriminatory criterion for certain jobs, such as that of a nurse in an intensive care
unit. 73 Finally, consideration of such intangibles as creativity, originality,
resourcefulness, potential, and scientific curiosity was permitted by one court where use
of objective criteria was insufficient to distinguish among the candidates. 74
The level of subjectivity permitted in making evaluations based on personal
characteristics may, however, be limited where an excessive amount of discretion is
placed in the hands of the individual making the evaluation. For example, where a
questionnaire and evaluation form used by an employer required the interviewer's
subjective opinion concerning a promotion candidate's "adaptability," "bearing,"
"demeanor," "manner," "maturity," and "drive," a court balked at the level of subjectivity
and found a Title VII violation on the theory that the ultimate decision was vulnerable to
conscious or unconscious discrimination by the evaluating supervisor. 75
Although the use of subjective criteria may be permissible in the selection of
management positions, where a female candidate for director of instruction in a high

school failed to obtain the position, subjective criteria were used not to distinguish among
peers, but to favor a male candidate. Part of the successful candidate's supposed
favorable "chemistry" was the fact that no female administrator had ever been appointed
in that school system, and implicit in the candidate's selection was the preference for
maintaining the continuation of an all-male administration. 76
Footnotes
Footnote 71. Rogillio v Diamond Shamrock Chemical Co. (1977, DC Tex) 446 F Supp
1257, 45 CCH EPD 37681.
Dec 6491.
Footnote 74. Marimont v Califano (1978, DC Dist Col) 464 F Supp 1220, 20 BNA FEP
Cas 1545, 19 CCH EPD 9041.
Footnote 75. Robinson v Union Carbide Corp. (1976, CA5) 538 F2d 652, 13 BNA FEP
Cas 645, 12 CCH EPD 11179, 22 FR Serv 2d 256, on reh (CA5) 544 F2d 1258, 14
BNA FEP Cas 266, 13 CCH EPD 11386, 22 FR Serv 2d 1161, cert den 434 US 822,
Footnote 76. Farber v Massillon Bd. of Educ. (1990, CA6) 917 F2d 1391, 54 BNA FEP
418 Matters of proof

View Entire Section
Under Title VII, proof of discrimination resulting from subjective employment criteria
has been based in particular cases on either a disparate treatment or a disparate impact
theory. A selection procedure that combines both subjective and objective criteria is
generally considered subjective in nature, and, therefore, is an appropriate subject for
disparate impact analysis. 77
The order of proof in disparate treatment cases arising from use of subjective job criteria
has been modeled on the Supreme Court's McDonnell Douglas 78 formula. 79 In one
case involving a woman who was denied a promotion because of a "general lack of
interpersonal skills," the court, invoking the McDonnell Douglas analysis, concluded that
the woman was not required to produce evidence that she had met the subjective job
selection criteria in order to establish a prima facie case. While possession of objective
job qualifications are an element of a plaintiff's prima facie case, the court said that
evidence regarding subjective criteria should be left for the "later stages" of the inquiry.
80 Another circuit has concluded that it is not part of a plaintiff's prima facie case to
demonstrate that he possessed the subjective qualities sought by the employer.
Structuring the burden of proof in such a manner would improperly prevent the court
from examining the criteria to determine whether their use was mere pretext. 81
The intent to discriminate required in disparate treatment cases may be proved by an
employer's failure to advertise an available job opening and by its use of subjective hiring
criteria. 82
Where the use of subjective criteria for an employer's promotion and transfer decisions is
challenged, the employer may defend by showing that the subjective standards do not
predominate over objective standards and that job descriptions adequately set forth the
skills needed for each job. 83 However, in meeting its burden in a disparate treatment
case, an employer may not use the subjective criteria challenged in the suit to plead lack
of qualifications on the part of the employee bringing the action. 84 Nor can an employer
use the fact that a subjective employment practice is required by business necessity as a
defense to a claim of intentional discrimination under Title VII, 85 as amended by the
Civil Rights Act of 1991. 86
A discriminatory promotion process may be inferred from a discrepancy between the
percentage of blacks in an employer's more desirable job classifications and the
percentage of minimally qualified blacks in the local labor force, where
recommendations by supervisors in virtually all-white supervisory ranks play a
significant role in the promotion process, and where there are no significant guidelines or
procedures governing supervisory recommendations. 87
In a Title VII challenge to an interview process, the Supreme Court resolved a difference
of opinion among the circuits by holding that the adverse impact theory of discrimination
could be applied to contest subjective selection criteria. The high court concluded that
there was no reason to prevent an applicant from using this theory just because the
selection device shown to have an adverse effect was based on subjective rather than
objective criteria, such as tests or education requirements. 88
An employee established a prima facie case of disparate impact discrimination by
proving that relevant statistical racial disparities within the workplace had a causal
connection to the employer's use of subjective performance awards. 89
As amended by the Civil Rights Act of 1991, 90 Title VII expressly shifts to the
employer the burden of proving that each identified discriminatory practice or practices
are consistent with business necessity, 91 including mixed subjective/objective
procedures. 92 The complainant may then rebut this showing by demonstrating the
availability of a less discriminatory alternative. 93 This amendment reestablishes the
proof formula in effect before the Supreme Court's Wards Cove 94 decision, which held
that only the burden of production shifted to the employer to demonstrate business
necessity when the challenge is to a selection process that mixes both subjective factors
with more standardized tests and rules. 95 Thus, when necessary, subjective criteria may
only be used in accordance with the Supreme Court's pre- Wards Cove standards, and the
Uniform Guidelines applicable to all employee selection procedures. 96
In order to defend a disparate impact challenge to a subjective promotion system, an
employer must present evidence that subjectivity is job-related, that is, that something
about the position requires the selector to use subjective evaluations of the applicant's
unquantifiable attributes.
An employer's hindsight justification concerning experience and seniority requirements
in a subjective promotion process must be viewed with suspicion, especially where the
requirements are not obvious and are not uniformly applied. Therefore, a district court
acted within its discretion in rejecting them as a rebuttal to the plaintiff's adverse impact
challenge. 97
Footnotes
Footnote 77. Rose v Wells Fargo & Co. (1990, CA9) 902 F2d 1417, 52 BNA FEP Cas
1430, 5 BNA IER Cas 648, 53 CCH EPD 39920, 116 CCH LC 56312.
Footnote 78. McDonnell Douglas Corp. v Green (1973) 411 US 792, 36 L Ed 2d 668,
Footnote 79. 2714.
Footnote 80. Burrus v United Tel. Co. (1982, CA10) 683 F2d 339, 29 BNA FEP Cas 663,
29 CCH EPD 32932, cert den (US) 30 BNA FEP Cas 592, 30 CCH EPD 33168.
Footnote 81. Weldon v Kraft, Inc. (1990, CA3) 896 F2d 793, 52 BNA FEP Cas 355, 29
Footnote 82. Opara v Modern Mfg. Co. (1977, DC Md) 434 F Supp 1040, 15 BNA FEP
Cas 158, 15 CCH EPD 7825.
Footnote 83. Keely v Westinghouse Electric Corp. (1975, DC Mo) 404 F Supp 573, 11
Footnote 84. Crawford v Western Electric Co. (1980, CA5) 614 F2d 1300, 22 BNA FEP
Cas 819, 22 CCH EPD 30831, 29 FR Serv 2d 786, reh den (CA5) 620 F2d 300, 24
CCH EPD 31211.
Footnote 86. P.L. 102-166, 105.
445, 4 CCH EPD 7689; Pettway v American Cast Iron Pipe Co. (1974, CA5) 494 F2d
211, 7 BNA FEP Cas 1115, 7 CCH EPD 9291, 18 FR Serv 2d 1016, 30 ALR Fed 184;
Stewart v General Motors Corp. (1976, CA7) 542 F2d 445, 13 BNA FEP Cas 1035, 12
Cas 31, 14 CCH EPD 7636, reh den 434 US 881, 54 L Ed 2d 165, 98 S Ct 244, 15
CCH EPD 7856; EEOC Decision No. 71-1442 (1971) 3 BNA FEP Cas 493, CCH
EEOC Dec 6567.
Footnote 88. Watson v Ft. Worth Bank & Trust (1988, US) 47 BNA FEP Cas 102.
Footnote 89. Emanuel v Marsh (1990, CA8) 897 F2d 1435, 52 BNA FEP Cas 616, 52
CCH EPD 39696.
Footnote 90. P.L. 102-166, 105.
Footnote 93. 42 USCS 2000e- 2(k)(1)(A)(i)(ii).
Footnote 94. Wards Cove Packing Co. Inc. v Atonio (1989) 490 US 642, 104 L Ed 2d
Footnote 97. Mozee v American Commercial Marine Service Co. (1991, CA7) 940 F2d
419 Safeguarding a subjective evaluation process from bias

View Entire Section
The use of subjective criteria in selecting candidates for employment opportunities is
more vulnerable to a Title VII challenge if there are not adequate controls against bias by
the evaluator. For example, the Supreme Court, while not commenting generally on the
use of subjective evaluations in making employment decisions, has held that reliance on
subjective evaluations based on sex stereotyping was sex discrimination. 98
When an employer fails to rely on objective criteria, the absence or extreme generality of
predetermined standards for selecting employees, combined with the failure to record
evaluations of job applicants and the absence of minorities on employment
decisionmaking bodies can add credence to claims of discrimination. 99 However, the
use of subjective oral interview procedures in the decisionmaking process does not
amount to an automatic violation of Title VII if there are meaningful, known, objective
standards involved. 1
There are mechanisms that can be designed into evaluation procedures using subjective
criteria that will safeguard against bias by an evaluator. One court upheld a subjective
evaluation procedure for promotions where the supervisors were given numerous specific
guidelines to use in evaluating employees and where the evaluations were reviewed by
higher management and by the personnel division. 2 In another situation, promotion
criteria containing subjective factors were upheld where the criteria were written, ratings
were discussed with the employees, employees could complain about ratings, and the
ratings were reviewed by at least two other supervisors. 3 Note, however, that group
decision making does not insulate a promotion system from Title VII liability where the
system relies on subjective supervisory evaluations. 4
Recommendation: Employers that must use subjective criteria as job requirements

for positions that are not susceptible to objective description should construct their
selection process carefully, keeping certain safeguards in mind. In implementing a
selection process, any personal traits required should be expressed in writing as
concretely as possible. Where interviews are used in the selection process, the format
of the conversation should be standardized, and the interviewer should use a standard
checklist for each candidate, recording the results on standardized forms. Furthermore,
supervisors should be given specific written instructions on the application of any
subjective elements used in evaluating personnel. The opinion of more than one
supervisor should be solicited to minimize the chance of individual bias, and
supervisory evaluations should be reviewed by higher management and by personnel
or human resources staff. Finally, employees should be offered an opportunity to
respond to supervisory evaluations, and an appeal procedure should be established for
employees to contest evaluations.
Footnotes
Footnote 98. Price Waterhouse v Hopkins (1989) 490 US 642, 104 L Ed 2d 268, 109 S
Footnote 99. Davis v Weidner (1979, CA7) 596 F2d 726, 19 BNA FEP Cas 668, 19 CCH
EPD 9118.
Footnote 1. Hamilton v General Motors Corp. (1979, CA5) 606 F2d 576, 21 BNA FEP
Cas 521, 21 CCH EPD 30387, reh den (CA5) 611 F2d 882 and cert den 447 US 907,
64 L Ed 2d 856, 100 S Ct 2990, 22 BNA FEP Cas 1642, 23 CCH EPD 30956, reh den
449 US 913, 66 L Ed 2d 141, 101 S Ct 288.
Footnote 2. Pouncy v Prudential Ins. Co. (1980, SD Tex) 499 F Supp 427, 23 BNA FEP
Cas 1349, 23 CCH EPD 31114, affd (CA5) 668 F2d 795, 28 BNA FEP Cas 121, 28
CCH EPD 32451.
Footnote 3. Thompson v McDonnell Douglas Corp. (1976, DC Mo) 416 F Supp 972, 14
1582, 13 CCH EPD 11590.
Footnote 4. Johnson v Uncle Ben's, Inc. (1980, CA5) 628 F2d 419, 24 BNA FEP Cas 1,
24 CCH EPD 31368, 30 FR Serv 2d 723, vacated on other grounds 451 US 902, 68 L
b. Personal Morality [420-424]
420 Generally
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An employer's ability to make employment decisions based on its own view of personal
morality is limited by job discrimination law, most notably, the sex and race
discrimination prohibitions in Title VII.
Title VII permits an employer to impose personal morality requirements (such as
prohibitions against venereal disease, unwed cohabitation, or illegitimate children) on
employees as long as the requirements do not have an adverse impact on a group
protected by the act (or cannot be justified as a business necessity) and as long as the
employer does not limit those standards (or apply them more strictly) to a particular
person or protected group. 5
For example, an employer was justified in not selecting a
black police officer for a promotion because he lied about his academic credentials.
Trustworthiness, reliability, and veracity, while important for any job, are characteristics
particularly important for that position. 6
The former claim is brought under the disparate impact theory and the latter under the
disparate treatment theory. 7 However, the same personal morality requirement may be
challenged under both theories of discrimination simultaneously. For instance, when an
employer refused to hire a black woman because she had an illegitimate child, the EEOC
found race discrimination under the disparate impact theory and sex discrimination under
the disparate treatment theory. 8
The legality under Title VII of an employment rule barring the employment of
individuals who engage in unlawful drug use is discussed in the context of an employer's
health and physical fitness requirements 9 and drug testing. 10
Practice Aids: Employment discrimination against lesbians and gays: The incomplete
legal responses of the United States and the European Union, 4 Duke J Comp &
Internat L 335 (1994).
Checking up on job applicants and employees: Federal limits on background
investigations, 158 NJ Law 1:16 (1994).
Footnotes
Footnote 5. United States v Virginia (1978, DC Va) 454 F Supp 1077, 20 BNA FEP Cas
209, 18 CCH EPD 8779, affd in part and revd in part on other grounds (CA4) 620 F2d
Footnote 6. Gilty v Oak Park (1989, ND Ill) 50 BNA FEP Cas 1388, affd (CA7) 919 F2d
Footnote 7. As to disparate impact and disparate treatment theories, generally, see
2703 et seq.
6164.
421 Prohibiting unmarried pregnancy

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While Title VII does not prohibit discrimination against employees or applicants on the
basis of their marital status, an employer that imposes personal morality requirements
that combine marital status with other factors, such as being pregnant or having children
out of wedlock, may violate the act. 11
For example, a public school system illegally
discriminated by forcing a teacher to take a leave of absence because she was unmarried
and pregnant. The employer's concern was not legitimate because it was based on both
an immutable sex characteristicpregnancyand a constitutionally protected activitythe
right to bear a child out of wedlock. 12
State aspects: Some state fair employment statutes expressly prohibit discrimination
on the grounds of marital status. 13
Title VII requires that ". . . women affected by pregnancy . . . or related medical
conditions . . . be treated the same for all employment-related purposes . . . as other
persons not so affected but similar in their ability or inability to work . . .." 14 Thus, an
employer's prohibition against pregnancy in addition to any other factor, such as the
status of being unmarried, will constitute sex discrimination under the Act, unless the
status distinction is a BFOQ reasonably related to the operation of the employer's
business. Most employers are unable to demonstrate such a relationship. 15
However,
a girls' club did not violate Title VII when it terminated a black, unmarried employee
because she had become pregnant. The employee was discharged under the club's "role
model rule," under which staff members were trained and expected to act as role models
for the young girls who participated in the club's programs, and which explicitly banned
single-parent pregnancies among staff members. Although the club's policy did have a
disparate impact on black women, it was justified by business necessity because there
was a manifest relationship between the policy and the club's fundamental purpose of
providing girls between the ages of 8 and 18 with exposure to the greatest number of
available positive options in life. Furthermore, the employee did not show disparate
treatment because the club's policy provided a legitimate, nondiscriminatory reason for
her discharge. Finally, the role model rule qualified as a BFOQ because the rule was
reasonably necessary to the club's operations. 16
As in other disparate treatment situations, the plaintiff will prevail if there is no
legitimate explanation for the employer's different treatment of similarly situated
individuals. For example, a church-affiliated school was not entitled to a summary
judgment when it terminated an unmarried pregnant teacher for violating the moral code
imposed on all employees. The employee had to be provided an opportunity to show that
male employees who violated the code by engaging in premarital sexual relationships
were not similarly discharged. 17
421 ----Prohibiting unmarried pregnancy [SUPPLEMENT]
Practice Aids: What constitutes termination of employee due to pregnancy in violation
of Pregnancy Discrimination Act amendment to Title VII of Civil Rights Act of 1964
(42 USCS 2000e(k)). 130 ALR Fed 473.
Footnotes
Footnote 11. Jacobs v Martin Sweets Co. (1977, CA6) 550 F2d 364, 14 BNA FEP Cas
178.
Footnote 12. Ponton v Newport News School Bd. (1986, ED Va) 632 F Supp 1056, 42
BNA FEP Cas 83.
Footnote 13. For discussion of state statutes in this context, see Employment Coordinator
EP-18,485 et seq.
Annotation: What constitutes employment discrimination on basis of "marital status"
for purposes of state civil rights laws, 44 ALR4th 1044.
Footnote 15. Jacobs v Martin Sweets Co. (1977, CA6) 550 F2d 364, 14 BNA FEP Cas
BNA FEP Cas 1686, 14 CCH EPD 7527; Doe v Osteopathic Hospital of Wichita, Inc.
(1971, DC Kan) 333 F Supp 1357, 3 BNA FEP Cas 1128, 4 CCH EPD 7545.
Footnote 16. Chambers v Omaha Girls Club, Inc. (1987, CA8) 834 F2d 697, 45 BNA
Law Reviews: Employment DiscriminationBusiness Necessity and BFOQ
Exceptions to Title VII Extended to Unmarried, Pregnant Youth Services Workers
Serving as Role Models. Chambers v Omaha Girls Club, Inc., 834 F2d 697. 11 U Ark
Little Rock L J 417 (1988/1989).

Footnote 17. Dolter v Wahlert High School (1980, ND Iowa) 483 F Supp 266, 21 BNA
FEP Cas 1413, 22 CCH EPD 30720.
422 Prohibiting illegitimate children

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The EEOC has held that when statistics indicated that 80% of the illegitimate births in
the county where the employer was located were to blacks, while only 29% of the
population was black, an employer's requirement prohibiting illegitimate children had an
adverse impact on black applicants and could not be justified by the employer as a
business necessity. Furthermore, the Commission concluded that the employer did not
apply this hiring requirement with the same rigor to male applicants, based on the
assumption that males could disguise the fact that they had illegitimate children more
easily than could females. 18
Observation: The Commission's disparate treatment sex discrimination finding

arguably lacks persuasiveness. The conclusion that a female applicant is less capable
than a male of deceiving an employer as to the existence of an illegitimate child
depends on numerous other assumptions, such as a current pregnancy in the visibly
obvious stages, custody arrangements, the depth of the employer's inquiry concerning
current and past marital status and ages of dependents, and the employer's background
checks, if any, on the accuracy of the information provided by male and female
applicants.
Recommendation: A female applicant rejected on the grounds of having an

illegitimate child, and attempting to demonstrate unlawful sex discrimination, may
avoid the weaknesses inherent in the EEOC's decision by submitting a few discovery
requests. She should ask the employer how it attempts to enforce this requirement, the
situations (by sex) in which such enforcement prevented the hiring of applicants, what
exceptions, if any, (by sex) have been given to applicants or employees, and under
what circumstances the exceptions were justified in each case. If this information does
not yield proof of disparate enforcement of the requirement against female applicants,
the employee may wish to call a sample of male and female employees to testify
concerning the accuracy of the employer's representations to the above inquiries.
A subsequent EEOC decision finding sex discrimination with regard to the discharge of a
current employee who had an illegitimate child was also based on the assumption that
female employees are less able to disguise the existence of illegitimate children than are
male employees. Thus, the employer would not be able to enforce such a prohibition on
both sexes equally. 19
Observation: While this decision has some of the same faults as the one previously
discussed, it is more supportable in some respects. The visibility of pregnancy in the

later stages will make the fact of having a child itself more difficult to conceal for
current female employees, even if one assumes the illegitimacy of the child is equally
capable of being disguised by both male and female employees.
422 ----Prohibiting illegitimate children [SUPPLEMENT]
(42 USCS 2000e(k)). 130 ALR Fed 473.
Footnotes
6164.
178.
423 Prohibiting abortions

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The EEOC's sex discrimination guidelines interpret Title VII as protecting a woman ". . .
against such practices as being fired, or refused a job or promotion, merely because she . .
. has had an abortion." 20
Observation: An employer's personal morality requirement that prohibits abortion

may have an adverse impact on some racial groups covered by Title VII, in which case
the requirement must be justified by business necessity.
423 ----Prohibiting abortions [SUPPLEMENT]
Case authorities:
Employer may not discriminate against woman employee because she has exercised her
right to have abortion, or because she has contemplated option of having abortion. Turic
v Holland Hospitality (1996, CA6 Mich) 85 F3d 1211, 71 BNA FEP Cas 28, reh den
(1996, CA6) 1996 US App LEXIS 18390 and reh, en banc, den (1996, CA6) 1996 US
App LEXIS 18391.

Employer who discharged female employee because she contemplated having abortion
violated Pregnancy Discrimination Act. Turic v Holland Hospitality (1996, CA6 Mich)
85 F3d 1211, 71 BNA FEP Cas 28, reh den (1996, CA6) 1996 US App LEXIS 18390 and
reh, en banc, den (1996, CA6) 1996 US App LEXIS 18391.
Footnotes
Footnote 20. 29 CFR 1604, Appx., Introduction.
424 Prohibiting illicit sexual relationships

View Entire Section
It is unlawful sex discrimination under Title VII when a male and female employee have
a sexual affair and the employer terminates only the female. 21 Such a disparity in
punishments was held not to be justified on the basis that the woman was a probationary
employee and the man was not, 22 or because the woman was single and the man was
married. 23
Observation: There may be some circumstances in which differing punishments may

be appropriate in this situation. It could be argued that actual or implicit coercion was
involved by one of the participants, especially in a supervisory-subordinate working
relationship. If the effect of the affair on the actual work product or contribution to the
organization by the respective participants is measurable and different, the employer
may be justified in imposing different punishments, provided this standard is uniformly
and consistently applied in all similar circumstances.
In addition, since an employer had been aware for years of a pregnant employee's flagrant
extramarital affair with a co-worker before it decided to terminate her for failing to
adhere to its standard of decency and public morality, the reason it gave for her
termination was unworthy of belief. 24
An employer's personal morality requirement prohibiting unwed cohabitation was not
racially or sexually discriminatory when there was no showing that it had an adverse
impact on a group protected by Title VII, and when the employer uniformly enforced the
requirement with respect to all employees and applicants. 25
Footnotes
6287.

sexual lifestyle or sexual preference as violation of Federal Constitution of federal civil
Footnote 22. Oldfather v Ohio Dept. of Transp. (1986, SD Ohio) 653 F Supp 1167, 48
BNA FEP Cas 607, app dismd without op (CA6) 816 F2d 681, 48 BNA FEP Cas 642;
Krzyzewski v Metro. Govt. of Nashville (1976, MD Tenn) 14 BNA FEP Cas 1024, 14
CCH EPD 7726, affd (CA6) 584 F2d 802, 18 BNA FEP Cas 175, 18 CCH EPD 8653.
Footnote 23. Krzyzewski v Metro. Govt. of Nashville (1976, MD Tenn) 14 BNA FEP
EPD 8653.
Footnote 24. Cumpiano v Banco Santander Puerto Rico (1990, CA1) 902 F2d 148, 52
c. Work History [425-427]
425 Generally; preference for current or former employees

View Entire Section
Some employment decisions may be based on an employee's or applicant's work history
with the same or another employer. Those decisions are lawful if they have neither the
purpose nor the effect of discrimination.
Granting a preference to current employees may violate Title VII. Violations were found
where:
vacancies were filled primarily from within, and no blacks were currently employed; 26
preferences were tied to stock ownership, which was reserved exclusively for
employees having an Italian national origin; 27
On the other hand, an employer rebutted a prima facie case through evidence that it hired
a white man because that person had previously worked for the employer and was known
to be a good employee. The court emphasized that the plaintiff, a Mexican-American
who was rejected for the job, failed to prove that the employer's preferred reasons for
hiring the white man were pretextual. 28
Footnotes
Footnote 26. Gates v Georgia-Pacific Corp. (1970, DC) 326 F Supp 397, 2 BNA FEP Cas
978, 2 CCH EPD 10305, affd (CA9 Or) 492 F2d 292, 7 BNA FEP Cas 416, 7 CCH
EPD 9185.
Footnote 27. Bonilla v Oakland Scavenger Co. (1982, CA9) 697 F2d 1297, 31 BNA FEP
Cas 50, 30 CCH EPD 33128.
Footnote 28. Lerma v Bolger (1982, CA5) 689 F2d 589, 29 BNA FEP Cas 1828, 30 CCH
EPD 33100.
426 No disruptive acts against employer

View Entire Section
An employer may justifiably refuse to hire an individual who has engaged in unlawful,
disruptive acts against it, but only if this criterion is applied alike to members of all races.
An employer was not required to hire an individual who had taken part in a carefully
planned "stall-in" designed to tie up access to and egress from the employer's plant at a
peak traffic hour. 29
Footnotes
427 Good record with previous employers

View Entire Section
As long as it is not applied unfairly to persons protected by Title VII, an employer may
lawfully require that job applicants have a good record in their previous employment.
Employers have been held to have stated legitimate reasons for not hiring particular
applicants where:
the employee had poor references from previous employers; 30
the record indicated that the plaintiff had constantly moved from one job to another; 31
the candidate had a history of working only when forced to do so because of the
expiration of his unemployment benefits; 32
Caution: Although a prospective employer may be protected from job discrimination

charges if it relies on bad references from previous employers to reject an applicant,
the previous employers may in a proper case be liable for unfair or discriminatory
adverse references or "blacklisting."
Footnotes
Footnote 30. Piascik v Cleveland Museum of Art (1976, ND Ohio) 426 F Supp 779, 14
BNA FEP Cas 33, 13 CCH EPD 11474; EEOC Decision No. NO 68-10- 479E (1969)
CCH EEOC Dec 6012; EEOC Decision No. 75-125 (1975) 21 BNA FEP Cas 1771,
CCH EEOC Dec 6537.
Footnote 31. Tortorici v Secretary of Health, Education & Welfare (1979, ND Ala) 496 F
Supp 7, 23 BNA FEP Cas 1284, affd (CA5 Ala) 610 F2d 278, 23 BNA FEP Cas 1286, 22
CCH EPD 30585.
Footnote 32. Robinson v Firestone Tire & Rubber Co. (1978, WD Okla) 446 F Supp 240,
d. Education, Job Skills, and Experience [428- 439]
(1). In General [428-433]
428 Generally
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Many employers impose minimum education, job skill, or work experience requirements,
or a combination of them, as a condition of obtaining or retaining a particular position.
These requirements may adversely affect blacks and other workers who are protected by
Title VII 33
and 42 USCS 1981. 34
The EEOC will carefully investigate charges involving training requirements for both
disparate treatment and adverse impact on the basis of national origin where the
requirements deny job opportunities to an individual because of his foreign training or
education or where they mandate that an individual be foreign trained or educated.
However, such requirements are not exceptions to the "bottom line" concept. 35
Caution: Although the EEOC's statement suggests that foreign training and
education requirements having an adverse impact on certain nationalities will not make
the employer liable under Title VII if the "bottom line" result of the employer's
selections for training programs do not demonstrate an adverse effect on a protected
group, the "bottom line" defense has been largely discredited by the Supreme Court. 36
Title VII imposes specific proof requirements for disparate impact challenges to all
employment practices, including an employer's education, skill, or experience
requirements. 37 Educational requirements for registered apprenticeship programs are
also covered under the National Apprenticeship Act of 1937. 38
Observation: None of the federal statutes specifically mentions educational

requirements. Rather, the statutes cover the requirements as hiring practices or as
terms and conditions of employment.
Practice Aids: Age discrimination in employment: the over qualified older worker, 44
Lab LJ 440 (1993).
Footnotes
Annotation: Educational requirement as unlawful employment practice violative of
Title VII of Civil Rights Act of 1964 (42 USCS 2000e et seq.), 30 ALR Fed 258.
Footnote 34. Rice v St. Louis (1978, ED Mo) 464 F Supp 138, 19 BNA FEP Cas 197, 19
Footnote 35. 29 CFR 1606.6(b)(2).
Footnote 36. 347.
Footnote 37. 429-433.
Footnote 38. 439.
429 Proving the employee's case

View Entire Section
Most cases in which an employer's educational, skill, or experience requirements are
challenged will be evaluated under the disparate impact theory of discrimination. To
prove adverse impact, the plaintiff must show that fewer members of a group protected
by Title VII in the relevant labor market possess the necessary qualifications, so that the
use of the requirement operates as a barrier to that group's employment opportunity. 39
For example, an employer's high school education requirement for entry into a skilled
trades' apprenticeship program violated 1981, even though the rate of rejection of white
employees was higher than for blacks because of the requirement, since proportionately
fewer blacks than whites in the relevant geographical area had attained the necessary
educational level. 40 However, an adverse impact must be demonstrated actually to
result from the challenged requirement. Census data alone were insufficient to show that
a college requirement had an adverse impact on blacks where the evidence indicated that
the employer's paper and pencil tests and other selection devices were the real reasons for
a low participation of blacks in the workforce. 41 Similarly, no inference of
discrimination arose from the fact that a greater percentage of blacks than whites in the
general population would be excluded from employment by a requirement that the
applicants have two years of college education, where the employer had a larger
percentage of blacks in positions affected by the requirement than the percentage of
blacks in the general population. 42
The complainant's burden of proof in a disparate impact challenge as articulated in
Griggs 43 has been expressly incorporated into Title VII, as amended by the Civil
Rights Act of 1991. 44 Therefore, the complainant must show that the challenged
practice, 45 including an educational, skill, or experience requirement, 46 causes an
adverse impact on the basis of race, color, religion, sex, or national origin. 47
The disparate impact of a high school education requirement on minority group members
has been shown by evidence that:
the requirement disqualified 10.2% of the Mexican-American or Spanish-surnamed
applicants, as compared to only 5.1% of all other applicants; 48
in the standard metropolitan statistical area, 43.7% of the white population, but only
14.5% of the nonwhite population, had high school diplomas; 49
in the area, the median years of education completed was 6.2 years by
Spanish-surnamed Americans, 9.5 years by blacks, and 12.5 years by Anglos; 50
Observation: Statistics regarding educational achievement levels for persons of a

certain age within a particular geographical area may be found in Census materials.
Another source is the U.S. Commission on Civil Rights.
An experience requirement may also have an adverse impact. For example, when an
employer limited foremen's jobs to those with prior experience, it illegally perpetuated
past discrimination against blacks, who had been historically excluded from those
positions. 51
Caution: The concept of adverse impact is much more complex than might be
suggested by cases in which education and experience requirements were in issue. 52
Occasionally, a disparate treatment analysis will also be applied to challenge an
employer's education, experience, or skill requirements, especially when there is doubt
that the requirement actually constitutes a qualification for the position. For instance, an
employer's reason for rejecting black applicantsthat they were not qualified because
they lacked experience in computerswas held to be mere pretext where three of the
whites hired had no computer experience, one white with computer experience was
rejected, and one of the whites hired performed no computer duties. 53 However, an
employer did not discriminate on the basis of age by applying its rule that it would not
hire college graduates for nonexempt positions. The employer believed that college
graduates were more likely to leave such jobs in a short period of time because they were
not challenged by the work. This was a rational basis for the policy not shown to be a
pretext for discrimination against older workers. 54
The EEOC will carefully investigate charges involving employers' fluency- in-English
requirements for both disparate treatment and adverse impact on the basis of national
origin. However, these requirements are not exceptions to the "bottom line" concept. 55
Caution: Although the EEOC's statement suggests that English fluency requirements
having an adverse impact on national origin groups will not damage the employer if the
"bottom line" result of the employer's overall selection process is not discriminatory,
the "bottom line" defense has been largely discredited by the Supreme Court's
Connecticut v Teal decision. 56
Footnotes
employmentAllegationDiscriminatory education requirement. 5A Am Jur Pl & Pr
Allegations in complaintDiscriminatory educational requirement [42 USCS
2000e-2; FRCP 8(a)]. 12 Federal Procedural Forms, L Ed, Job Discrimination
45:105.
EmploymentTesting and Education Requirements.
Footnote 40. Donnell v General Motors Corp. (1978, CA8) 576 F2d 1292, 17 BNA FEP
Cas 712, 16 CCH EPD 8315.
Footnote 41. Walls v Mississippi State Dept. of Public Welfare (1982, ND Miss) 542 F
Supp 281.
Footnote 42. Jackson v Curators of University of Missouri (1978, ED Mo) 456 F Supp
Footnote 44. P.L. 102-166, 105.

Footnote 46. S Rept No. 101-315, 6/8/90, p. 46. 42 USCS 2000e- 2(k)(1)(B)(i).
Footnote 48. Roman v Reynolds Metals Co. (1973, DC Tex) 368 F Supp 47, 7 BNA FEP
Cas 339, 7 CCH EPD 9319.
6217.
Footnote 51. Grant v Bethlehem Steel Corp. (1980, CA2) 635 F2d 1007, 24 BNA FEP
Footnote 52. For a full discussion of how to prove a disparate impact, see 2707 et seq.
Footnote 53. Sims v Montgomery County Com. (1982, MD Ala) 544 F Supp 420.
Footnote 54. Stein v National City Bank (1991, CA6) 942 F2d 1062, 56 BNA FEP Cas
1078, 57 CCH EPD 40980.
Footnote 55. 29 CFR 1606.6(b)(1).
Footnote 56. 347.
430 Overcoming a prima facie case

View Entire Section
Where an adverse impact exists, the employer must justify its education or experience
requirement as a business necessity. In other words, under Title VII, an employer may
require that applicants and employees meet education, skill, and experience requirements
if the standards are manifestly related to the successful performance of the job. 57 As
amended by the Civil Rights Act of 1991, 58 Title VII expressly incorporates the
Griggs 59 standard for overcoming a prima facie case of adverse impact discrimination
in the context of an employer's education, skill, and experience requirements. Therefore,
the employer must prove that the challenged practice is job related for the position in
question and consistent with business necessity. 60 This means that the aspect of job
performance measured by an education, job skills, or experience requirement must be
important when examined in the context of the employees' total duties. 61
Illustration: The classic example of business necessity is requiring the ability to type
for a secretarial position the main duty of which is typing.
It is not a valid defense in an adverse impact case that the requirement is uniformly
applied to all candidates, or that there is no intention to discriminate by imposing the
requirement. 62
Conversely, it is not a defense to a claim of intentional discrimination
under the Title VII, as amended by the Civil Rights Act of 1991, 63 that the employment
practice in question is required by business necessity. 64 It is also not enough to show
that those who possess the requirement will perform better than those who do not have it.
The employer must prove that candidates who lack the required education or experience
will not perform adequately.
There are three factors concerning the job itself which are likely to affect a determination
of whether education, skill, and experience requirements are valid.
First: if the requirements are imposed on higher level management and professional
positions, or academically oriented positions, as opposed to entry level, trainee, or
semi-skilled positions, the requirements are more likely to be found valid. For example,
despite a showing of adverse impact against women, a college degree requirement was
valid for a bank management trainee 65 and for tenure on a college faculty, 66 but
invalid when it had an adverse effect on blacks who wanted to be sheet metal apprentices.
67 Similarly, denying an applicant a public relations job on the basis of her lack of
experience in public relations within ten years of her applying for the position in question
was neither reasonable nor job-related. Such a recency factor has greater appropriateness
to a job involving highly technical skills in an industry experiencing rapid technological
change. 68
Second: if hiring an unqualified person exposes the employer to substantial, rather than
minimal, economic risks, these requirements are more likely to be found valid. A flight
officer in charge of a 20-million-dollar aircraft could legally be required to have a college
degree, although only a minuscule number of blacks were hired for the job. The airline
offered statistics demonstrating that those who met the additional requirement of 500
hours of flight time were less likely to fail their expensive training course. 69 However,
it was race discrimination to require a high school diploma for entry level jobs in
production and maintenance when on-the-job training could teach the skills required in a
relatively short time, and where the employer's promotion procedures protected it from
advancing unqualified people into progressively more complex positions. 70
Third: if hiring an unqualified person subjects co-workers or the general public to
substantial health or safety risks, requirements are more likely to be found valid. It was
held that:
it was valid to require a college degree for a public health program representative who
had to contact individuals regarding medical treatment, where poor performance would
create risks to their health and safety; 71
the important public interest of safety on the roads and highways was sufficiently
weighty to validate a requirement that truck drivers have two years of truck driving
experience or complete a truckdriving course; 72
a preference for those with high school educations was justified for operating jobs on a
railroad, because of the legal obligations of a common carrier to function in a safe and
efficient manner. 73
The above factors are only predictive probabilities, not absolute rules. For instance, a
district court has found it reasonable to require a college degree in order to transfer from
the job of keypunch operator to any position in the computer department, without
discussing any need for increased professional skill or any health, safety, or economic
concerns which would justify the requirement. 74
Caution: While the amendments to Title VII by the Civil Rights Act of 1991 do not
restrict the evidence by which employers can show that a challenged employment
practice is job related and consistent with business necessity, no longer can a court, as
was done in Goodloe, 75 uphold an education or experience requirement without
analyzing its importance to the aspect of the job performance purportedly measured.
Footnotes
Footnote 58. P.L. 102-166, 105.
Footnote 63. P.L. 102-166, 105.
Footnote 65. Vuyanich v Republic Nat. Bank (1980, ND Tex) 505 F Supp 224, 24 BNA
FEP Cas 128, 24 CCH EPD 31480, mod, in part, reh den, en banc (ND Tex) 521 F
Supp 656, 26 BNA FEP Cas 1127, 26 CCH EPD 32106, vacated on other grounds
(CA5) 723 F2d 1195, 33 BNA FEP Cas 1521, 33 CCH EPD 34160, 38 FR Serv 2d 650.
Footnote 66. Kunda v Muhlenberg College (1978, ED Pa) 463 F Supp 294, 18 BNA FEP
EPD 30674, 55 ALR Fed 806.
Footnote 67. EEOC v Local 638 (1975, SD NY) 401 F Supp 467, 12 BNA FEP Cas 712,
10 CCH EPD 10347, supp op (SD NY) 421 F Supp 603, 12 BNA FEP Cas 742, mod
(CA2) 532 F2d 821, 12 BNA FEP Cas 755, 11 CCH EPD 10757, later app (CA2) 565
Footnote 68. Haskins v Secretary of HHS (1984, WD Mo) 35 BNA FEP Cas 256, 35
CCH EPD 34902.
Cas 17, 5 CCH EPD 7996.
Footnote 70. Watkins v Scott Paper Co. (1976, CA5) 530 F2d 1159, 12 BNA FEP Cas
Footnote 71. Rice v St Louis (1978, ED Mo) 464 F Supp 138, 19 BNA FEP Cas 197, 19
Footnote 72. Chrisner v Complete Auto Transit, Inc. (1981, CA6) 645 F2d 1251, 25 BNA
Footnote 73. Edmonds v Southern Pacific Transp. Co. (1979, ND Cal) 19 BNA FEP Cas
1052.
Footnote 74. Goodloe v Martin Marietta Corp. (1972, DC Colo) 5 BNA FEP Cas 1046, 7
CCH EPD 9197, affd without op (CA10) 10 BNA FEP Cas 1176, 10 CCH EPD
10305.
Footnote 75. Goodloe v Martin Marietta Corp. (1972, DC Colo) 5 BNA FEP Cas 1046, 7
CCH EPD 9197, affd without op (CA10) 10 BNA FEP Cas 1176, 10 CCH EPD
10305.
431 Applicability of selection procedure guidelines

View Entire Section
The Uniform Guidelines on Employee Selection Procedures 76 define educational and
work experience requirements as "selection procedures." Any selection procedure having
an adverse impact upon a group protected by Title VII is discriminatory, unless
empirically validated in accordance with the guidelines. 77
A conflict has arisen in the courts as to whether the empirical standards outlined in the
Guidelines are the only means by which education, skill, and experience requirements
may be validated. On the one hand, the Fifth 78
and D.C. Circuits 79 require that
those standards be utilized to validate education requirements.
Without specifically saying that adherence to the Guidelines was mandatory or
controlling with respect to validation of a paper and pencil test, the Seventh Circuit
followed them closely in deciding that a test was valid under Title VII, despite its adverse
impact on black applicants. 80
On the other hand, the Eighth Circuit 81 and two
district courts 82 have held that the validation methods outlined in the Guidelines are not
required for educational requirements. Under these latter decisions, the validation
methods of the Guidelines are the preferred type of evidence, 83 but they do not need to
be rigidly applied, as they do for paper and pencil tests. 84 Another court noted that the
Guidelines were never promulgated as regulations; thus, they did not have the force of
law. 85 Thus, the reasoning of expert observers may be sufficient to prove validity. 86
The Ninth Circuit also found an employer's validation studies of a written test with a
disparate impact against black and Hispanic applicants to constitute an acceptable
business necessity defense under Title VII, even though the employer failed to validate
the examination in conformity with the Uniform Guidelines. Job-relatedness may be
demonstrated by any professionally acceptable method that shows a job requirement is
predictive of, or significantly correlated with, important elements of work behavior
which comprise, or are relevant to, the job for which candidates are being evaluated. The
court noted that while noncompliance with the Guidelines diminishes the probative value
of a validation study, few such studies ever meet those technicals standards of validity.
87
In a case where an entire selection process containing both objective and subjective
elements was being challenged, the Supreme Court held that if the plaintiff was
successful in demonstrating an adverse impact the employer bore only the burden of
producing evidence of business necessity. It was the plaintiff who then had the burden of
rebutting the business necessity as pretextual or coming forward with an equally effective
selection alternative. 88 However, the Civil Rights Act of 1991 89 explicitly puts the
burden of proof on the employer to demonstrate that its selection procedures are job
related for the position in question and consistent with business necessity under Title VII.
90 Furthermore, it is Congress' intention that validation be conducted in accordance
with the principles developed by the Supreme Court in Griggs 91 and the Uniform
Guidelines, 92 and not under the Supreme Court's holding in Wards Cove, 93 which
had imposed only the burden of production on the employer. 94
Observation: While Wards Cove did not explicitly deal with the issue of whether
education or experience requirements had to be justified under the Uniform Guidelines
if they had an adverse impact, the Court's evaluation of the employer's burden of
showing business necessity appeared to allow evidence short of the exacting standards
of the Guidelines to suffice in addressing a plaintiff's prima facie case of adverse
impact discrimination in any situation.
Recommendation: Employers in the Fifth and D.C. Circuits should conduct the
empirical validation studies outlined in the Guidelines if technically feasible. All
employers should carefully examine and justify their education, experience, and skill
requirements prior to implementation and with expert assistance, if possible.
Footnotes
For a full discussion of validation standardsand methods under the Guidelines, see
351 et seq.
Footnote 78. Johnson v Uncle Ben's, Inc. (1980, CA5) 628 F2d 419, 24 BNA FEP Cas 1,
24 CCH EPD 31368, 30 FR Serv 2d 723, vacated on other grounds 451 US 902, 68 L
Ed 2d 290, 101 S Ct 1967, 25 BNA FEP Cas 737, 25 CCH EPD 31724, on remand,
remanded 657 F2d 750, 26 BNA FEP Cas 1417, 27 CCH EPD 32165, reh den (CA5)
667 F2d 92 and cert den 459 US 967, 74 L Ed 2d 277, 103 S Ct 293, 30 BNA FEP Cas
56, 30 CCH EPD 33126.
Footnote 79. Reynolds v Sheet Metal Workers (1981, App DC) 702 F2d 221, 25 BNA
FEP Cas 1424, 38 CCH EPD 35802.
Footnote 81. Hawkins v Anheuser-Busch, Inc. (1983, CA8) 697 F2d 810, 30 BNA FEP
Cas 1170, 30 CCH EPD 33281.
Footnote 82. League of United Latin American Citizens v Santa Ana (1976, DC Cal) 410
F Supp 873, 12 BNA FEP Cas 651, 11 CCH EPD 10818, 13 CCH EPD 11308, mod
(CD Cal) 13 BNA FEP Cas 1019; United States v Buffalo (1978, WD NY) 457 F Supp
612, 19 BNA FEP Cas 776, 18 CCH EPD 8899, mod on other grounds (CA2) 633 F2d
Cas 1170, 30 CCH EPD 33281.
Footnote 84. U.S. v Buffalo (1978, WD NY) 457 F Supp 612, 19 BNA FEP Cas 776, 18
CCH EPD 8899, mod on other grounds (CA2) 633 F2d 643, 24 BNA FEP Cas 313, 24
CCH EPD 31333.
Footnote 85. Aguilera v Cook County Police & Corrections Merit Bd. (1985, CA7) 37
Footnote 86. League of United Latin American Citizens v Santa Ana (1976, DC Cal) 410
F Supp 873, 12 BNA FEP Cas 651, 11 CCH EPD 11308, 10818, 13 CCH EPD 11308,
mod on other grounds (CD Cal) 13 BNA FEP Cas 1019.
Footnote 87. Clady v County of Los Angeles (1985, CA9) 770 F2d 1421, 38 BNA FEP
Cas 1575, 38 CCH EPD 35516.
Footnote 88. Wards Cove Packing Co., Inc. v Atonio (1989) 490 US 642, 104 L Ed 2d
Footnote 89. P.L. 102-166, 105.
Footnote 91. 430.
Footnote 93. Wards Cove Packing Co., Inc. v Atonio (1989) 490 US 642, 104 L Ed 2d
432 Justifying requirements by testimony

View Entire Section
Despite a lack of scientific validation methods, employers have been able to justify
education, skill, and experience requirements after a showing (or assumption by the
court) of adverse impact by testimony establishing the job- relatedness of the
requirements. This has included:
extensive testimony by employees (and other unspecified evidence) showing the
business necessity of specific college degrees for a trade returns supervisor; 95
testimony that holders of advanced degrees could make additional contributions to a
university, and that requiring those degrees for tenure was necessary to command respect
in the academic community; 96
expert testimony of the business necessity for a 45-hour college credit requirement for
the position of police officer in a major metropolitan area because of the potential danger
posed by hiring an unqualified police officer and the impossibility of reducing job
characteristics to measurable components; 97
testimony by physicians and administrators (current and former employees) that a
college degree was related to the job of public health program representative because it
required communication skills, tact, maturity, "unshockability," and because it involved
public health and safety. 98
However, the testimony of a freight company's president which amounted to "visions of
an unqualified driver hurtling through space" did not prove the business necessity of a
requirement that city drivers have three years of long-haul experience before they could
transfer to long-haul routes. The court found that experience driving similar equipment
was sufficient to address safety concerns. 99
The amendments to Title VII made by the Civil Rights Act imposing the Griggs burden
of proof in disparate impact cases 1 do not prevent an employer from establishing
job-relatedness or business necessity by testimony concerning the importance of job
performance measured by the practice when examined in the context of the employees'
total duties. 2 However, that burden cannot be met by general statements regarding a
company's judgment or a selecting official's personal belief that a requirement would
improve the overall quality of the work force or benefit plant operations. 3
Observation: While justifications for education, skill, and experience requirements

may be successfully presented by the testimony of current and former employees,
outside studies and other supportive information will strengthen the case for validity.
Footnotes
Cas 1170, 30 CCH EPD 33281.
Footnote 96. Kunda v Muhlenberg College (1978, ED Pa) 463 F Supp 294, 18 BNA FEP
EPD 30674, 55 ALR Fed 806.
Footnote 97. Davis v Dallas (1985, CA5) 777 F2d 205, 39 BNA FEP Cas 744, 39 CCH
1320, 40 CCH EPD 36116.
Footnote 98. Rice v St. Louis (1979, CA8) 607 F2d 791, 21 BNA FEP Cas 81, 21 CCH
EPD 30327.
Footnote 99. Rodriguez v East Texas Motor Freight (1974, CA5) 505 F2d 40, 8 BNA
FEP Cas 1246, 8 CCH EPD 9811, 19 FR Serv 2d 661, vacated on other grounds 431
US 395, 52 L Ed 2d 453, 97 S Ct 1891, 14 BNA FEP Cas 1505, 14 CCH EPD 7578,
23 FR Serv 2d 397.
Footnote 1. 430.
Footnote 3. H Rept No. 102-40, Part 1, 4/24/91, p. 42-43.
433 Overcoming the employer's justification

View Entire Section
Under the adverse impact theory, if the employer shows that the requirement is justified
by business necessity, 4 the employee bears the burden of demonstrating that there are
alternative means of selection available which have a lesser (or no) adverse impact
against the affected group. 5 If this showing is made, the employer must adopt that
alternative. 6 As amended by the Civil Rights Act of 1991, 7 Title VII incorporates
these principles by requiring the employee to demonstrate that a less discriminatory
alternative employment practice exists compared to the practice being challenged, and
that the employer has refused to adopt it. 8
These principles also are intended to apply to those antidiscrimination laws that have
Another method of rebutting the employer's evidence is showing that "unqualified"
employees have performed satisfactorily and made progress on the job in question. 10
In looking for employees who have done well despite their not meeting an educational
requirement, a good place to begin is among the white foremen, lead men, or other
skilled workers of long seniority. 11
Footnotes
Footnote 4. 430.
Footnote 5. Chrisner v Complete Auto Transit, Inc. (1981, CA6) 645 F2d 1251, 25 BNA
Footnote 7. P.L. 102-166, 105.
Footnote 8. 42 USCS 2000e- 2(k)(l)(A)(ii).
FEP Cas 1115, 7 CCH EPD 9291, 18 FR Serv 2d 1016, 30 ALR Fed 184.
(2). Particular Requirements [434-439]
434 Validity determinations in particular cases

View Entire Section
Because determinations regarding the validity of education, skill, and experience
requirements concentrate on the often unique character of the duties and responsibilities
of a job, it is instructive to present an overview of particular validity determinations by
the courts and EEOC. The following charts summarize those findings with respect to the
requirements of college education, 12 high school education, 13 work experience, 14
language, and other job skills. 15
Columns 1 through 4 of the charts are self-explanatory. Column 5 indicates whether the
Commission or court found that the particular job requirement had an adverse impact on
the protected group. A finding of no impact will normally terminate the inquiry into the
job requirement's validity, and no entry has been made in Column 6 in which this was the
case. In some cases, however, the courts have gone on to discuss a requirement's
job-relatedness despite a finding of no adverse impact. Holdings as to validity or
invalidity in these decisions are, accordingly, indicated in Column 6.
Caution: It is not wise to rely too heavily on findings that requirements were valid in
cases where disparate impact was alleged but not proved. All such discussions by the
courts and EEOC are useful by analogy, but their legal significance is not as great as
where disparate impact is actually shown.
As demonstrated by the charts, when two or more independent job requirements of an
employer are being challenged, the courts have evaluated them separately to determine
whether an adverse impact has been shown, and whether each is job-related. When the
employer has interdependent requirements, a combined analysis is appropriate. For
example, a bank being challenged for sex discrimination in the hiring and promotion of
women with respect to management positions had no absolute requirements for any of the
positions. The bank evaluated each candidate's education and experience qualifications,
and weighed and balanced them in the selection process. The court found that the total
result of the hiring process had an adverse impact against women. However, the
employer demonstrated by statistics and testimony from a banking expert that the
selection factors were similar to those used by other banks, and were "reasonable policies
consistently applied," and thus job-related in the aggregate. 16
Footnotes
Footnote 12. 435.
Footnote 13. 436.
Footnote 14. 437.
Footnote 15. 438.
Footnote 16. Vuyanich v Republic Nat. Bank (1980, ND Tex) 505 F Supp 224, 24 BNA
FEP Cas 128, 24 CCH EPD 31480, mod, in part, reh den, en banc (ND Tex) 521 F
Supp 656, 26 BNA FEP Cas 1127, 26 CCH EPD 32106, vacated on other grounds
(CA5) 723 F2d 1195, 33 BNA FEP Cas 1521, 33 CCH EPD 34160, 38 FR Serv 2d 650.
435 College education

View Entire Section
436 High school education

View Entire Section

437 Work experience

View Entire Section
438 Language and other job skills

View Entire Section
Go to Supplement
438 ----Language and other job skills [SUPPLEMENT]
Practice Aids: Accent discrimination and the test of spoken English: A call for an
objective assessment of the comprehensibility of nonnative speakers, 81 Cal LR 1325
(1993).
439 Educational requirements for registered apprenticeship programs

View Entire Section
Under the Labor Department's regulations governing selection for registered
apprenticeship programs, 93 educational attainments or achievements required for
admission to a pool of eligible applicants must be directly related to job performance, as
shown by a significant statistical and practical relationship between the score, the score
required for admission to the pool, and performance in the apprenticeship program.
School records or the results of general educational development tests recognized by the
state or local public instruction authority constitute evidence of educational achievement.
Education requirements must be applied uniformly to all applicants. 94
Footnotes
Footnote 94. 29 CFR 30.5(b)(1).
e. Health and Physical Fitness [440-464]
(1). In General [440-446]
440 Generally
View Entire Section
An employer's legitimate concerns regarding the health and physical fitness of employees
and applicants may be expressed through job requirements that conform with job
discrimination prohibitions.
Some federal 95 and state 96 discrimination laws regulate the validity of using physical
and mental qualifications standards and administering physical or medical examinations
to applicants and employees. Other specific health and fitness employment issues, such
as prohibitions on alcohol or drug use, 97 prohibitions on smoking and other tobacco
use, 98 fetal protection plans, 99 and sickle cell anemia and other hereditary traits, 1
are also discussed.
Footnotes
Footnote 95. 441-462.
Footnote 96. As to state laws regulating employer health and fitness concerns, see
Employment Coordinator EP-18,447.1 et seq.
Footnote 97. 452.
Footnote 98. 453.
Footnote 99. 451.
Footnote 1. 448.
441 Validity of physical and mental qualifications standards under Title VII and
the ADEA
View Entire Section
Go to Supplement
Under Title VII, physical qualifications standards are valid if they are job-related and
applied even-handedly. In a case alleging that a physical requirement had a
disproportionate impact on black applicants, for example, the requirement that a manual
laborer have a good back was so manifestly job-related that an evidentiary showing of
business necessity was not required. 2
Caution: The above case arose under Title VII before the effective date of the
Americans with Disabilities Act (ADA). Under the ADA, the employer would be
required to demonstrate not only job-relatedness and business necessity, but also that
accommodation to permit a qualified applicant or employee with a disability to
perform the job was not possible or would pose an undue hardship. 3
The application of physical fitness standards in a discriminatory manner to bar
employment opportunities to women and other protected groups, or as a pretext for the
exclusion of an individual because of race or sex, is unlawful. 4
Where employees establish that a facially neutral physical requirement has a disparate
impact on persons protected by Title VII, 5 the burden shifts to the employer to
demonstrate that the employment prerequisite in question is job- related. 6
Furthermore, as amended by the Civil Rights Act of 1991, 7 Title VII shifts to the
employer the burden to demonstrate that an employment practice causing an adverse
impact is job related for the position in question and consistent with business necessity, 8
including health and physical fitness standards such as a strength requirement. 9 The
burden shifts to the complainant to demonstrate that the employer refuses to adopt a less
discriminatory alternative employment practice. 10
These principles are intended to apply also to those antidiscrimination laws that have
Observation: Physical requirements may have an exceptionally harsh impact on

older worke. Employers should not assume that every employee over a certain age in a
particular type of job is physically unable to perform the duties of that job.
Recommendation: Employers should make sure that older applicants are not being
screened out on the ground that the job they are applying for is too strenuous, unless
that job actually requires physical endurance, rapid reflexes, or a high degree of speed,
coordination, dexterity, or strength.
Caution: Employers subject to the Vietnam-Era Veterans Readjustment Assistance

Act 12 or the Rehabilitation Act of 1973 13 cannot discriminate against, and may
have an affirmative duty to employ, disabled individuals. 14
Pre-employment inquiries concerning health and physical condition are separately

discussed elsewhere. 15
441 ----Validity of physical and mental qualifications standards under Title VII
and the ADEA [SUPPLEMENT]
Practice Aids: ADEA bars medical exam for older employees, 21 Tax Manag Comp
Plan J 5:126 (1993).
Age discrimination and the ADA: how the ADA may be used to arm older Americans
against age discrimination by employers who would otherwise escape liability under the
ADEA, 66 Temp LR 173 (1993).
Footnotes
290, 14 CCH EPD 7702, 36 ALR Fed 709.
Annotation: Requirement that employee or prospective employee take and pass
physical examination as unlawful employment practice violative of Title VII of Civil
Rights Act of 1964 (42 USCS 2000e et seq.), 36 ALR Fed 721.
Footnote 3. 442.
Footnote 4. Linebaugh v Auto Leasing Co. (1978, WD Ky) 18 BNA FEP Cas 752, 18
CCH EPD 8904; U.S. v Lee Way Motor Freight, Inc. (1973, WD Okla) 7 BNA FEP
Cas 710, 7 CCH EPD 9066.
FEP Cas 601, 26 CCH EPD 61921, 31 FR Serv 2d 1060, on reconsideration, vacated, in
cert den 460 US 1074, 75 L Ed 2d 954, 103 S Ct 1534; Vanguard Justice Soc. v Hughes
Footnote 6. Albermarle Paper Co. v Moody (1975) 422 US 405, 45 L Ed 2d 280, 95 S
Ct 2362, 10 BNA FEP Cas 1181, 9 CCH EPD 10230; Dothard v Rawlinson (1977) 433
Footnote 7. P.L. 102-166 105.
Footnote 9. S Rept No. 102-40, Part 1, 4/24/91, p. 46.
As to strength requirements, generally, see 454.

Law Reviews: Minimum Physical StandardsSafeguarding the Rights of Protective
Service Workers Under the Age Discrimination in Employment Act. 57 Fordham L
Rev 1053 (1989).
Footnote 12. 177.
Footnote 14. As to affirmative action requirements in the employment of disabled
persons, see 672 et seq.
Footnote 15. 564.
442 Validity of physical and mental qualifications standards under the ADA
View Entire Section
Go to Supplement
Under the ADA, employers may establish physical or mental qualifications standards that
are necessary to perform specific jobs, such as police officer or fire fighter or some jobs
in construction and transportation. If the standard screens out people with disabilities,
however, the employer must be able to justify the standard as job-related and a business
necessity and must show that an accommodation to permit a particular applicant to do the
job is not possible or would pose an undue hardship. Employers do not have to consider
the impact of standards on people with disabilities unless an otherwise qualified person
with a disability requests an accommodation. 16
Illustration: If a job in a mailroom required reaching packages on six-foot-high

shelves, an employer would have to consider whether a person who could not reach the
high shelves because of a disability could do the job with accommodation, such as
providing a step stool or a reaching device or rearranging the shelves. 17
Blanket exclusions of people with specified disabilities, such as epilepsy or mental
retardation, are often based on fears about future medical or workers' compensation costs
or other prejudices, not current medical knowledge. Blanket exclusions will usually
violate the ADA, because the statute requires an objective assessment of each individual's
current ability to perform a job safely and effectively. 18
Physical agility tests are discussed elsewhere. 19
442 ----Validity of physical and mental qualifications standards under the ADA
[SUPPLEMENT]
Case authorities:
Because petitioner could not perform the duties of the job of correctional officer as
defined in the job description and petitioner's condition could create an unreasonable risk
to himself, his fellow correctional officers, other inmates, and the public at large,
petitioner was not a "qualified handicapped person," and respondent was under no duty to
make accommodations for petitioner's physical condition. GS 168A-3(4),
168A-3(9)(a). White v North Carolina Dep't of Correction (1995) 117 NC App 521, 451
SE2d 876, motion gr 117 NC App 138.
Footnotes
Footnote 19. 445.

View Entire Section
The Uniform Guidelines on Employee Selection Procedures establish guidelines for
validation of selection procedures to assure that they do not have an adverse impact on
groups protected by Title VII and other federal statutes. 20 The Guidelines define
"selection procedure" to include physical requirements. 21
Validation of a physical fitness standard is strong evidence of job- relatedness if a claim
is made that the standard discriminates against protected groups other than persons with
disabilities. Evidence that a physical fitness test had been validated under the Guidelines
was sufficient to establish the job-relatedness of the test which allegedly had a disparate
impact on women. 22
Furthermore, a municipality did not discriminate against women by requiring applicants
for the police academy to pass both a physical agility test, which analyzed the ability to
perform certain tasks, and a physical assessment test, which analyzed general fitness,
despite the lack of any formal validation studies. The physical agility test was a valid
indicator of the applicants' fitness to enter the academy, where the police department used
incumbent officers to measure the actual time it should have taken for individuals to
complete the examination. In addition, the tasks involved in the test were "operational
necessities," since they were tasks that police officers actually had to perform on the job.
The physical assessment test also was not discriminatory because, while men and women
took the same test, women were only compared to other women, not to men. 23
Caution: The Guidelines do not apply under the ADA to selection procedures
affecting people with disabilities. 24 Therefore, validation under the Guidelines,
which were adopted before the enactment of the ADA, will not establish the validity of
a test, qualification, or procedures under the ADA.
Recommendation: Employers should examine physical and mental fitness

requirements to determine whether those qualifications (1) are truly job-related and
consistent with business necessity, and (2) affect essential functions of the job. When
applying the standards to an applicant with a disability, the employer should then
consider whether the applicant can meet the standard with or without reasonable
accommodation.
Footnotes
Footnote 20. 317.
Footnote 21. 29 CFR 1607.16(Q).
Footnote 22. Eison v Knoxville (1983, ED Tenn) 570 F Supp 11.
Footnote 23. United States of America v City of Wichita Falls (1988, ND Tex) 1988 US
Dist LEXIS 15724.
Footnote 24. As to the ADA's regulation of selection procedures, see 332 et seq.
444 When physical examinations may be required

View Entire Section
In situations to which the ADA does not apply, an employer may require job applicants
to pass a physical examination as a condition of employment without violating Title VII
provided that the examination requirement is job- related. For example, disqualification
of a job applicant by a doctor, even where the medical opinion was erroneous, was an
effective counter to a claim of race discrimination. 25
Caution: Physical examination requirements that are valid under Title VII may still
be subject to challenge under the ADA if they tend to screen out qualified disabled
persons from consideration for employment. 26
Caution: The ADA places limits on when employers may require medical
examinations. 27 However, not all "physical" examinations are necessarily "medical"

examinations. Arguably, physical examinations that are not truly "medical
examinations" may not be subject to the ADA's medical exam limitations. But this
distinction may not be easy to make, particularly in the case of tests that are used as
diagnostic tests in a medical context, but which are used differently in some
employment contexts. Thus, employers should be prepared to show how any physical
exams they choose to use are distinct from medical exams if the former are challenged
as being an example of the latter under the ADA.
In order to avoid violating Title VII, an employer must see that physical examinations are
fairly administered, and the resulting employment actions taken even-handedly, and not
used as a pretext for discriminatory treatment. 28 For example, an employer that gave
male production applicants a physical examination that included back X-rays before they
were hired, but who did not give back X-rays to female employees until they sought
assignment to a particular job that required weight lifting, violated the law. 29
An employer's reliance on a physical examination that is merely qualifying, rather than
competitive, has been held unlawful under Title VII if it is coupled with other screening
devices that use competitive scoring techniques. 30
Physical agility tests are not considered to be medical tests under the ADA. Therefore,
employers may require physical agility tests to determine physical qualifications
necessary for a job before making a job offer. However, if the test screens out people
with disabilities, the test must be job-related and consistent with business necessity. 31
Employers should carefully preserve the distinction between medical tests and physical
agility tests, however. The latter do not involve medical examinations or diagnosis by a
physician. 32
Recommendation: If an employer desires medical screening before administering a

physical agility test, it could either give the test after a conditional job offer, as it
would a medical test, or seek approval of the applicant's personal physician in a
carefully worded question limited to whether the applicant can safely perform the
specific test. 33
Footnotes
Footnote 25. Weaden v American Cyanamid Co. (1976, ND Fla) 14 BNA FEP Cas 533,
14 CCH EPD 7557.
Footnote 26. 442.
Footnote 27. 445.
Footnote 28. Warren v Veterans Hospital (1974, ED Pa) 382 F Supp 303, 10 BNA FEP
Cas 1169.
Footnote 30. Vulcan Soc. of New York City Fire Dept., Inc. v Civil Service Com. (1973,
CA2 NY) 490 F2d 387, 6 BNA FEP Cas 1045, 6 CCH EPD 8974.
Footnote 31. 333.

445 Medical examinations and inquiries may be required

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The Americans with Disabilities Act (ADA) prohibits employers, 34 and the
Rehabilitation Act prohibits recipients of government funds, 35 from giving medical
examinations to applicants for employment before a job offer is made. After an offer is
made, the employer, 36 or funding recipient 37 may condition employment on the
basis of the results of a medical examination, if all entering employees in the same job
category are subject to such examinations regardless of their handicap 38 or disability,
39 and the results of the examination are not used contrary to the requirements of the
ADA 40 or the Rehabilitation Act. 41
Under the ADA, an employer cannot require an employee to undergo a medical
examination unless it can demonstrate that the exam is job-related and consistent with
business necessity. 42 A medical examination or inquiry may be considered job- related
and consistent with business necessity under the ADA when, for example:
an employee is having difficulty performing his or her job effectively;
an employee who is injured, on or off the job, becomes ill or suffers any other condition
that meets the ADA definition of disability 43 wishes to return to work, and an
examination is necessary to determine if any accommodation is necessary, or if the
individual can perform the essential job functions, with or without accommodation, and
without posing a direct threat to health or safety that cannot be reduced or eliminated by
reasonable accommodation;
an employee requests an accommodation, and an examination is necessary to determine
if the employee has a disability covered by the ADA and to identify an effective
accommodation. 44
Also, voluntary medical examinations and the voluntary collection of medical histories
may be done as part of a health program available to employees at that work site. 45
Illustration: Programs involving voluntary medical histories often include screening

for high blood pressure, weight control counseling, and cancer detection. Voluntary
medical activities include such things as blood pressure monitoring and the
administering of prescription drugs, such as insulin. 46
Under the ADA's prohibitions concerning both applicants and employees, medical
examinations include psychological examinations, 47 but do not include tests for the
illegal use of drugs. 48 Nor do they apply to physical agility tests, although those tests
are still subject to the same requirements governing all employment tests and
qualifications. 49
Requirements applicable to the confidentiality of the medical records created by all
medical examinations of disabled and handicapped employees and applicants are
discussed along with other privacy concerns at 994 et seq.
The postoffer medical examinations described above do not have to be job- related and
consistent with business necessity. However, if the employer uses criteria that screens out
employees with disabilities as a result of such examinations, then the exclusionary
criteria must be job-related and consistent with business necessity, and performance of
the essential job functions cannot be accomplished with reasonable accommodations. 50
Illustration: An employer makes a conditional offer of employment to an applicant

based on his ability to work every day for the next three months. An entrance medical
examination reveals that the applicant has a disabling impairment, according to the
most current medical knowledge, that will require treatment during a portion of the
three month period. Under those circumstances, the employer may withdraw the
employment offer consistent with the requirements of the ADA.
In certain industries, such as air transportation, applicants for security and safety related
positions are normally chosen on the basis of many competitive factors, some of which
are identified as a result of a postoffer pre-employment medical examination. It is not the
intent of the legislation to prohibit an employer from choosing an applicant on the basis
of factors identified as a result of a medical examination conducted after an offer of
employment has been made but before the offer has been confirmed, provided that the
results are not used to screen out qualified individuals with disabilities on the basis of
disability. 51
Furthermore, the ADA allows physical examinations that determine fitness for duty
under requirements established in federal, state, or local laws which are consistent with
the Act's nondiscrimination purposes, and also allows medical monitoring pursuant to
health and safety standards, such as those promulgated under the Occupational Safety
and Health Act or the Federal Coal Mine Health and Safety Act, 52 or in compliance
with federal laws that require periodic testing of employees exposed to certain toxic and
hazardous substances. 53 These requirements are consistent with the regulations
implementing 504 of the Rehabilitation Act of 1973. 54
Pre-employment inquiries regarding an applicant's disability or handicap are discussed
elsewhere, 55 As is a government contractor's obligation to review its physical and
mental job requirements, to ensure that they are job-related and consistent with business
necessity, so as to satisfy its affirmative action obligations under the Vietnam-Era
Veterans Readjustment Assistance Act and the Rehabilitation Act. 56
445 ----Medical examinations and inquiries may be required [SUPPLEMENT]

Case authorities:
With regard to pre-employment physicals required of job applicants, use of medical test
to discriminate solely on basis of handicap is not in accord with provisions of 504 (29
USCS 794) which specifically prohibit discrimination against disabled individuals.
Doe v City of Chicago (1994, ND Ill) 7 ADD 991.
Footnotes
Footnote 34. 42 USCS 12112(c)(2)(A).
Footnote 36. 42 USCS 12112(c)(3).
Footnote 38. 28 CFR 42.513(c)(1).
Footnote 39. 42 USCS 12112(c)(3)(A); 29 CFR 1630.14(b).
Footnote 40. 42 USCS 12112(c)(3)(C).
Footnote 41. 28 CFR 42.513(c)(2).
Footnote 42. 42 USCS 12112(c)(4)(A).
Footnote 43. 209.
Footnote 45. 42 USCS 12112(c)(4)(B).
Footnote 48. 42 USCS 12114(d)(1).
Footnote 50. 29 CFR 1630.14(b)(3).
Footnote 51. 29 CFR Part 1630, Appendix, 1630.14(b).
Footnote 52. 29 CFR Part 1630, Appendix, 1630.14(c).

Footnote 55. at 564.
Footnote 56. 672.
446 Medical examinations and inquiries of employees injured on- the-job

View Entire Section
The ADA allows employers to take reasonable steps to avoid increased workers'
compensation liability while protecting persons with disabilities against exclusion from
jobs they can safely perform. After making a conditional offer, an employer may inquire
about a person's workers' compensation history. The information gathered can be used to
verify employment history, screen out applicants with a history of fraudulent workers'
compensation claims, and screen out individuals who would pose a direct threat to the
health and safety of themselves or others, which could not be reduced or eliminated by a
reasonable accommodation.
If a worker has an on-the-job injury that appears to affect the ability to perform the
essential functions of the job, an employer can require a medical examination, since it
would be job-related and consistent with business necessity.
Caution: If a worker wishes to return to work after an absence due to an accident or

illness, an employer can only require a job-related medical examination, not a full
physical exam, as a condition of returning to work.
An employer cannot refuse to let a qualified individual with a disability return to work
because the worker is not fully recovered, unless the worker (1) cannot perform the
essential functions of the job with or without reasonable accommodation; or (2) would
pose a significant threat of substantial harm that cannot be reduced with reasonable
accommodation. An employer may be required to consider an employee's qualifications
to perform other vacant jobs for which the employee is qualified as accommodation for
the disability.
Medical information may be useful to an employer in deciding whether an injured worker
can come back to work, in what job, and, if necessary, with what accommodation.
Although a physician may provide an employer with relevant information about an
employee's functional abilities, limitations and work restrictions, the employer bears the
ultimate responsibility for deciding whether the individual is qualified, with or without a
reasonable accommodation, and cannot avoid liability if it relies on a physician's advice
which is not consistent with the ADA's requirements. 57
Footnotes
(2). Particular Health, Fitness, or Size Requirements [447-464]
447 Good health requirements; generally

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Claims of discrimination may arise as the result of an employer's rejection of applicants
or discharge of employees on account of health difficulties that are considered to affect
job performance. However, Title VII protection does not extend to job discrimination
based on factors other than race, color, sex, religion and national origin, such as an
employee's injury and resulting inability to perform certain duties, 58 and health
requirements can be lawfully imposed if they are truly job-related. A physical condition
that prevents an applicant from meeting legitimate physical requirements that are
consistently applied by the employer is a lawful ground for rejection. 59 For example,
an employer's rejection of a black applicant was held legitimate despite a Title VII claim
of racial discrimination where her health difficulties precluded her placement in many
entry-level jobs. 60 Similarly, an employer was held justified in discharging a black
employee on account of asthma, developed from a cleaning fluid used on the job and
throughout the plant, which precluded his performance of any job at the plant for which
he was qualified that did not involve contact with the fumes. 61
Other disqualifying conditions have included:
scoliosis; 62
limited flexion of the knees; 63
bone degeneration in the spinal region. 64
Caution: Good health requirements that are found valid under Title VII may still be
subject to challenge as invalid physical or mental qualifications standards under the
ADA 65 and state disability discrimination statutory provisions. 66
447 ----Good health requirements; generally [SUPPLEMENT]
Case authorities:
Civil rights action by discharged state correctional officer against state department of
corrections is denied summarily, where state court held, in employee's appeal of state
equal opportunity commission ruling, that back injury employee had suffered rendered
him unable to perform tasks required of corrections officer and that on day he was
discharged, employee was not qualified to hold that job, because federal court must give
state court ruling full faith and credit, and, therefore, employee is collaterally estopped
from arguing that he was qualified to do job and so cannot prevail on civil rights claim.
Payne v Nebraska Dep't of Correctional Servs. (1993, DC Neb) 854 F Supp 608.
Agency's removal action would be sustained where record established that, once agency
received results of fitness-for-duty examination that established appellant's status as
qualified handicapped employee due to heart disease, it considered reassignment and
conducted search for vacant positions within agency for which appellant qualified and
which were consistent with his medically imposed physical restrictions; agency did not
discriminate against appellant by failing to demote him to position which it filled with
another applicant since agency was not in possession of any medical evidence at time it
filled that position that appellant might be incapacitated. McConnell v Department of the
Army (1994, MSPB) 61 MSPR 163.
Footnotes
Footnote 58. Clark v Wright & Lopez, Inc. (1976, ED Tenn) 423 F Supp 405, 14 BNA
FEP Cas 940.
Footnote 59. Dorcus v Westvaco Corp. (1972, DC Va) 345 F Supp 1173, 5 BNA FEP
Cas 147, 5 CCH EPD 8086; Roberts v St. Louis S. R. Co. (1971, DC Ark) 329 F Supp
Footnote 60. Diggs v Western Electric Co. (1978, CA10) 587 F2d 1070, 18 BNA FEP
Cas 1192, 18 CCH EPD 8708.
Footnote 61. Boyce v Reynolds Metals Co. (1976, CA8) 532 F2d 638, 16 BNA FEP Cas
1646, 11 CCH EPD 10761.
Footnote 62. Weaden v American Cyanamid Co. (1976, ND Fla) 14 BNA FEP Cas 533,
14 CCH EPD 7557; Roberts v St. Louis S. R. Co. (1971, DC Ark) 329 F Supp 973, 3
Footnote 63. Dorcus v Westvaco Corp. (1972, WD Va) 345 F Supp 1173, 5 BNA FEP
Cas 147, 5 CCH EPD 8086.
290, 14 CCH EPD 7702, 36 ALR Fed 709.
Footnote 65. 442.
Footnote 66. For discussion of state statutes relating to disability discrimination, see
448 Sickle cell anemia and other hereditary traits

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The exclusion of individuals because of certain hereditary traits that are significantly
more prevalent in members of particular races has prompted claims of discrimination by
virtue of the practice's disparate impact on protected groups. For example, an employer
may not lawfully, because of the adverse impact on blacks, reject a job applicant on the
basis of a medical condition such as sickle cell anemia if the applicant's condition will
not interfere with the performance of his duties. 67 However, the discharge of a black
employee was upheld after X-rays showed degeneration in his spine, which could have
been caused by sickle cell anemia, on the theory that it was the condition of his back,
rather than his blood, that disqualified him from a laborer's job. 68
448 ----Sickle cell anemia and other hereditary traits [SUPPLEMENT]
Practice Aids: Risky Business: Genetic Testing and Exclusionary Practices in the
Hazardous Workplace, by Judy Olian, McFarland and Co., (Reviewed), 46 Indust &
Lab Rel R 582 (1993).
Footnotes
6764.
290, 14 CCH EPD 7702, 36 ALR Fed 709; EEOC Decision No. 70-694 (1970) 2 BNA
FEP 606, CCH EEOC Dec 6147.
449 Food handlers with communicable diseases

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The Americans with Disabilities Act (ADA) permits an employer to refuse to assign or
refuse to continue to assign an individual with a communicable disease transmittable
through the handling of food, to a position involving food handling, if certain conditions
are met. First, the fact of the disease's transmission through food handling must be
certified on a list created for that purpose by the Secretary of Health and Human
Services. Second, the transmission of the disease must not be able to be eliminated by
providing a reasonable accommodation to the disability 69
Illustration: If an individual has an infectious disease that can be eliminated by

taking medication for a specified period of time, the employer must offer the employee
the reasonable accommodation of taking time off to take the medication, unless an
undue hardship results. 70 If the individual with a disability is a current employee, the
employer must consider whether he or she can be accommodated by reassignment to a
vacant position not involving food handling. 71
The Secretary of HHS, no later than six months after July 26, 1990, 72 must create a list
of infectious and communicable diseases transmitted through food handling, publish the
methods by which such diseases are transmitted, and publish and widely disseminate
such information to the general public. 73 The purpose of the list is to prevent false
perceptions from being used to determine whether individuals may remain in food
handling positions by having the Secretary use valid scientific evidence to determine
which diseases are transmitted through the handling of food. 74 The list has been
published in the Federal Register and contains only pathogens transmitted by an infected
person who does not wash his hands, such as Hepatitis A and Salmonella typhi, and
pathogens transmitted after a period of temperature abuse to food. 75
Observation: The list makes no reference to the HIV virus.

The ADA's food handling provisions do not preempt, modify, or amend state or local
laws or regulations that apply to food handling, that are designed to protect the public
health from individuals who pose a significant risk to the health or safety of others,
pursuant to the list published by the Secretary. 76 Thus, state and local public health
laws and regulations are not preempted if they protect the public from individuals who
pose a significant risk to others that cannot be eliminated by reasonable accommodation,
and if they pertain to diseases on the Secretary's list. 77
449 ----Food handlers with communicable diseases [SUPPLEMENT]
Case authorities:
Although person infected with HIV is individual with disability within meaning of
Rehabilitation Act (29 USCS 701 et seq.), deference is due to prison authorities'
policy not to open food service jobs to HIV-infected inmates if authorities provide
reasonable basis for this restriction based on legitimate penological concerns, and such
restriction of HIV-positive inmates does not automatically violate 29 USCS 794. Gates
v Rowland (1994, CA9 Cal) 39 F3d 1439, 94 CDOS 8459, 94 Daily Journal DAR 15652,
7 ADD 1.
Footnotes
Footnote 69. 42 USCS 12113(d)(2).
As to reasonable accommodation under the ADA, see 217 et seq.
Footnote 70. H Conf Rept No. 101-596, 7/12/90, p. 62-63.

Footnote 71. 29 CFR 1630.16(e)(1).
As to accommodation by reassignment, generally, see 220.
Footnote 73. 42 USCS 12113(d)(1).
Footnote 75. 56 Fed Reg 22726, 5/16/91.
Footnote 76. 42 USCS 12113(d)(3).
Footnote 77. H Conf Rept No. 101- 596, 7/12/90, p. 63.
450 "No-pregnancy" requirements

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The Pregnancy Discrimination Act (PDA) amendments to Title VII require employers to
treat women affected by pregnancy, childbirth, and related medical conditions in the
same manner as their other employees for all employment-related purposes. 78 An
employment policy or practice, written or unwritten, that excludes pregnant women from
employment is a prima facie violation of Title VII. 79
An employer cannot legitimately refuse to hire a pregnant woman if she is capable of
performing the major functions necessary to the job; moreover, an employer must treat an
employee temporarily unable to perform her job because of pregnancy in the same
manner as it treats other temporarily disabled employees, whether by providing modified
tasks, alternative assignments, or disability leave or leaves without pay. For example, if a
woman's primary job is the operation of a machine, and carrying materials to and from
the machine is incidental to the job, she must be temporarily relieved of that function if
other employees temporarily unable to lift are ordinarily relieved of that task. 80
Observation: While it is lawful to terminate pregnant employees or to require that

they take leaves of absence in the same manner as male employees are treated because
of disabilities that impair their job performance, even before the Pregnancy
Discrimination Act was passed it was considered an unlawful employment practice to
terminate an employee merely because she became pregnant. 81
450 ----"No-pregnancy" requirements [SUPPLEMENT]

(42 USCS 2000e(k)). 130 ALR Fed 473.
Case authorities:
Notice required as remedy for agency's failing to provide union with copies of final
decision letters sent to unit employees concerning EEO complaints should be signed by
agency's general counsel rather than Director of Medical Center in Newington,
Connecticut. U.S. Dept. of Veterans Affairs, Washington, D.C. and National Association
of Government Employees, Local R1-109, SEIU, AFL-CIO (1993) 48 FLRA No. 109.
Footnotes
Footnote 79. 29 CFR 1604.10(a).
Footnote 80. 29 CFR Part 1604, Appx, Question 5.
Footnote 81. Maternity leaves under the Pregnancy Discrimination Act are discussed at
875 et seq.
451 Fetal protection plans

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An employer that restricts or prohibits pregnant or fertile women from working in jobs
that entail an exposure to hazardous substances which pose a substantial risk of harm to a
fetus, may violate the Pregnancy Discrimination Act (PDA) amendment to Title VII. 82
The Supreme Court has concluded that since the PDA requires equal treatment of both
women affected by pregnancy and related medical conditions and other employees not so
affected but who are similar with respect to their ability to work, an employer's policy
that forbid fertile women, but not fertile men, from working in jobs that involved a
certain level of exposure to lead, constituted unlawful sex discrimination under the
statute, unless it could be justified by a bona fide occupational qualification (BFOQ).
The Court rejected the argument that the employer's policy should be analyzed under the
disparate impact method of proof, 83 since the policy was not neutral. Despite the
evidence of the debilitating effects of lead on the reproductive systems of males as well
as females, the employer expressed concern only for the harm which might be caused to
the unborn offspring of female employees. Thus, the policy constituted explicit
intentional sex discrimination, regardless of the ostensibly benign motivation.
The Court further held that the BFOQ defense was inapplicable in this situation if based
on the grounds of safe and efficient job performance, because there was no evidence that
fertile females were less capable of efficiently performing the jobs in question than were
fertile males. Furthermore, the safety at issue in a BFOQ analysis pertains to the risks
involved to either fellow workers or to members of the general public who are
indispensable to the central mission of the employer's business, as established in cases
concerning age discrimination. 84 While the risk of harm to fetuses is a deep social
concern, it is not an essential aspect of the employer's battery manufacturing operation, as
the risk to passenger safety is essential to an airline's operation. Thus, Title VII leaves
concern about the welfare of future children to the parents, not to the employers who hire
them, and does not require a woman to submit to sterilization as a condition of
employment or advancement.
Additionally, the Court noted that while tort liability for potential injury to a fetus is a
valid concern for an employer, the employer involved in the instant dispute met the
workplace standards for lead established by OSHA and routinely warned female
employees about the potentially damaging effects of lead. Under those circumstances,
the possibility of tort liability was remote at best. Moreover, if state tort law prevented
an employer from employing a fertile woman who could perform a job, it would be
inconsistent with, and preempted by Title VII's ban on sex-specific fetal protection
policies. Finally, the Court noted that if employing fertile women proved to be more
expensive than employing fertile men, short of a cost that would threaten the survival of
an employer's business, it was not a defense to unlawful sex discrimination. 85
Observation: The Court's rationale does not prevent an employer from imposing a
neutral fetal protection policy, in other words, a ban on the employment of both fertile
male and female workers whose exposure to hazardous substances risks fetal injury or
deformity.
Recommendation: An employer that has a genuine expectation of tort liability for

the hazardous substances risks to fetuses should adopt a neutral fetal protection policy
applicable to both fertile male and female employees.
Caution: The Court's rationale does not prevent an adverse impact challenge to a
neutral fetal protection policy based on a demonstrable unequal effect on female
workers. Under those circumstances, the court's statement regarding the costs of
employing fertile females means that a neutral fetal protection policy may be justified
by cost considerations if it threatens the existence of the employer's business.
Based on the Supreme Court's decision, the EEOC rescinded all of its previous policy
statements on the fetal protection issue and now requires that if an EEOC investigation
confirms an allegation that an employer has excluded members of one sex from
employment based on a fetal protection policy, "probable cause" of a Title VII violation
must be found. It does not matter whether the employer can prove that a substance to
which its workers are exposed will endanger the health of a fetus, nor whether the
employer can prove that it will incur a higher cost as a result of hiring women. The
Commission concludes that individuals who can perform the essential functions of a job
must be considered eligible for employment, regardless of the presence of workplace
hazards to fetuses. 86
Employers may also be subject to sex discrimination challenges under state job
discrimination laws when implementing a fetal protection policy. For example, a
California court has found that under the Fair Employment and Housing Act the BFOQ
defense is the only one applicable to overtly discriminatory fetal protection plans. Thus,
a fetal protection policy that excluded all fertile women from most production jobs,
allegedly because of the risk of lead exposure to fetuses, constituted a statutory violation.
The employer did not show that fertile women could not efficiently perform the jobs in
question and did not show that the essence of its business would be undermined by fertile
women workers. 87
451 ----Fetal protection plans [SUPPLEMENT]
Practice Aids: Talking about judges, talking about women: Constitutive rhetoric in the
Johnson Controls case, 31 Am Bus LJ 117 (1993).
From the inception to the aftermath of International Union, UAW v. Johnson Controls,
Inc.: Achieving its potential to advance women's employment rights, 43 Cath U LR 227
(1993).
Preemption revisited: Title VII and state tort liability after International Union v. Johnson
Controls, 66 St John's U LR 1047 (1993).
2000e(k)). 130 ALR Fed 473.
Footnotes
Footnote 82. As to the PDA generally, see 146 et seq.
Annotation: Exclusion of women from employment involving risk of fetal injury as
violative of Title VII of Civil Rights Act of 1964 (42 USCS 2000e et seq.), 66
ALR Fed 968.
Footnote 83. As to the disparate impact method of proof, generally, see 2707 et seq.
Footnote 84. As to safety-related BFOQs in age discrimination cases, generally, see
282.
113 L Ed 2d 158, 111 S Ct 1196, 91 CDOS 2025, 91 Daily Journal DAR 3284, 55 BNA
FEP Cas 365, 15 BNA OSHC 2102, 55 CCH EPD 40605, 1991 CCH OSHD 29256.
Footnote 86. EEOC Policy Statement N-915.064, 6/28/91.
Footnote 87. Johnson Controls, Inc. v California Fair Employment & Housing Com.
(1990, 4th Dist) 218 Cal App 3d 517, 267 Cal Rptr 158, 52 BNA FEP Cas 585, 14 BNA
OSHC 1457, 53 CCH EPD 39758, 1990 CCH OSHD 28849, reh den 1990 Cal App
LEXIS 301 and review den.
452 Prohibitions on alcohol or drug use

View Entire Section
Under Title VII, an employer's rules concerning the consumption of alcohol and use of
illegal drugs, like any other rule that affects the "terms, conditions, or privileges" of
employment, 88 must not discriminate on the basis of a protected characteristic. For
example, the Supreme Court has held that an employer's regulation prohibiting the
employment of narcotics users, and its application to methadone users, did not violate
Title VII despite its disparate impact on blacks and Hispanics. Although statistics
showed that 81% of the employees suspected of violating the rule were black or
Hispanic, that indicated nothing about the racial composition of employees suspected of,
or dismissed for using, methadone. Also, statistics showing that 63% of the individuals
on methadone maintenance in the city were black or Hispanic did not indicate anything
about the racial composition of the employer's applicants and employees receiving
methadone treatments. Even if the two statistics established a prima facie case of
discrimination, it was rebutted by the employer's demonstration that its narcotics rule,
and that rule's application to methadone users, was job related, and a finding that the rule
was not motivated by racial animus foreclosed any claim in rebuttal that it was merely
pretext for intentional discrimination. 89
Also, a requirement that applicants for the
position of city police officer not exhibit "recent or excessive marijuana usage" was
job-related and valid despite having a disparate impact on black applicants. A
psychologist testified that an officer who had used marijuana in the past was less likely to
enforce that law than an individual who had not, and was more likely to smoke it in the
future. 90
Furthermore, a black employee's refusal to enter a voluntary drug rehabilitation program
after failing a drug test was a legitimate nondiscriminatory reason for not rehiring him.
91 However, a black teacher who was terminated for having been convicted of
possession of two marijuana cigarettes that he had confiscated from students was treated
unlawfully under Title VII, compared to a white teacher who was only given a verbal
reprimand for being convicted of driving under the influence of alcohol. 92
Title VII's requirement to provide a reasonable accommodation, without undue hardship,
to the religious practices of employees and applicants was violated by an employer who
refused to hire a member of the Native American Church for a truck driver job, because
the applicant's religious activities included ingestion of an hallucinogenic substance.
Since the plaintiff's projected peyote use was infrequent, the employer would have
suffered only a minimal expense, and still could have remained in compliance with the
safety agreements and regulations, by restricting the plaintiff's truck driving duties to
periods of noninfluence. 93
Footnotes
Footnote 88. 701.
Footnote 89. New York City Transit Authority v Beazer (1979) 440 US 568, 59 L Ed 2d

1320, 40 CCH EPD 36116.
Footnote 91. Anderson v Lewis Rail Service Co. (1989, CA5) 868 F2d 774, 49 BNA FEP
Cas 564, 49 CCH EPD 38876.
Footnote 92. Daniels v Alcoa (1990, ED Tenn) 732 F Supp 1467, 53 CCH EPD 39980.
Footnote 93. Toledo v Nobel- Sysco, Inc. (1989, CA10) 892 F2d 1481, 51 BNA FEP Cas
453 Prohibitions on smoking and other tobacco use

View Entire Section
An employer's rules concerning smoking, like any other rule that affects the "terms,
conditions, or privileges" of employment, 94 must not discriminate on the basis of a
protected characteristic under Title VII. Therefore, an employer violated Title VII by
allowing male employees to smoke on-duty but restricting female employees to smoking
only during rest periods or in employee lounges. Such a restriction denied female
employees equal conditions of employment, based on their sex. 95
The Americans with Disabilities Act expressly states that it should not be construed to
prevent any prohibitions or restrictions on smoking in places of employment,
transportation, or public accommodations. 96
State aspects: For discussion of state statutes regulating an employer's treatment of

applicants or employees who smoke or use tobacco products, both on-duty and
off-duty, see Employment Coordinator EP-18,435.5.
Footnotes
6165.
Law Reviews: "Smokers Need Not Apply": Challenging Employment Discrimination

Against Smokers Under the Americans with Disabilities Act. 39 U Kan L Rev 817
(1991).
454 Strength requirements; an overview

View Entire Section
Go to Supplement
A physical fitness standard sometimes imposed by employers is the requirement that
applicants for particular jobs be able to lift certain minimum amounts of weight. When a
weight lifting requirement restricts the maximum amount of weight women are allowed
to lift, 97 or results from an employer's assumption that women as a class cannot perform
the job, 98 it violates Title VII. 99 However, an employer's rejection of a female
applicant for a job requiring heavy lifting is lawful when based on a doctor's refusal to
certify her as fit for the job, particularly when other women are hired for the position
under qualifying standards that are the same for men and women. 1
Observation: Under the Pregnancy Discrimination Act, if a pregnant employee

cannot perform a lifting function that is incidental to her job, she must be temporarily
relieved of that function if other employees temporarily unable to lift would be excused
from the task. 2
If heavy lifting is required only in initial assignments in a classification, with subsequent
tasks requiring only minimal lifting, alternative assignment practices must be developed
if the prospect of the initial assignment has effectively prevented the entry of women into
the classification. 3
An employer's stereotypical assumptions about male applicants or employees also violate
Title VII. It is unlawful discrimination to assign males on a regular basis primarily to
jobs requiring physical labor despite their qualifications for more desirable, nonphysical
office work that offers greater opportunities for advancement. 4
However, strength can be a valid job requirement even if the position demands only
infrequent use of it. 5 If strength is a bona fide job-related quality, a test that measures
strength directly, if fairly administered, satisfies Title VII, since it measures the person
for the job and not the person in the abstract. 6
As amended by the Civil Rights Act of
1991, 7 Title VII expressly requires that all employment practices shown to cause a
disparate impact on the basis of race, color, religion, sex, or national origin, be shown by
the employer to be job related for the position in question and consistent with business
necessity, 8 including a strength standard. 9
454 ----Strength requirements; an overview [SUPPLEMENT]
Case authorities:
County personnel board properly upheld demotion of water plant operator to lower
paying utility worker position, based on operator's physical limitations and resulting
inability to lift 50-pound bags of lime as part of operator's position, where limitations
could not be accommodated by sharing work or using smaller bags due to staffing
restrictions and testimony of operator's doctor to effect that operator would be unable to
carry even smaller bags up stairs and ladders as job required. Gaither v Anne Arundel
County (1993) 94 Md App 569, 618 A2d 244.
Footnotes
Footnote 97. Bowe v Colgate-Palmolive Co. (1969, CA7) 416 F2d 711, 2 BNA FEP Cas
121, 2 BNA FEP Cas 223, 2 CCH EPD 10090, 61 CCH LC 9326, 13 FR Serv 2d 475.
Footnote 99. Pond v Braniff Airways (1976, ND Tex) 13 BNA FEP Cas 1237, 12 CCH
EPD 11274.
Footnote 2. 450.
Footnote 3. Payne v Travenol Laboratories, Inc. (1976, ND Miss) 416 F Supp 248, 12
BNA FEP Cas 770, 11 CCH EPD 10784, motion gr (ND Miss) 74 FRD 14, 13 CCH
EPD 11572.
Footnote 4. Utility Workers Union, Local 246 v Southern California Edison Co. (1969,
CD Cal) 2 BNA FEP Cas 328, 2 CCH EPD 10133.
Footnote 7. P.L. 102-166 105.
As to minimum height and weight requirements as indicators of strength, see 460.
455 Strength requirements as a male BFOQ

View Entire Section

The contention that the degree of physical strength necessary for certain arduous or
strenuous jobs makes male sex a bona fide occupational qualification has proved largely
unsuccessful. Most courts have held that where an individual's sexual attributes are not
necessary to a job, the BFOQ exception for physically strenuous work is available only
when the employer can demonstrate a factual basis, rather than relying on a stereotypical
assumption, for the belief that all or substantially all women are physically unable to
perform such jobs safely and efficiently. 10
Judging the lifting ability of women in
general by the ability of a small sample of women does not justify the exclusion of
women from the job at hand. 11 When job performance includes heavy lifting, female
applicants must be afforded an opportunity to demonstrate their ability. 12
Factors that courts have considered significant in denying BFOQ status to physical
strength requirements which disqualified women include:
the absence of evidence demonstrating that a particular job was so strenuous that
substantially all women would be unable to perform it; 13
the ability of women employed elsewhere to perform the same or equivalent jobs; 14
the importance of technique, as opposed to strength, in the performance of particular
jobs; 15
the denial to women of the opportunity to demonstrate actual physical ability. 16
Footnotes
Footnote 10. Weeks v Southern Bell Tel. & Tel. Co. (1969, CA5 Ga) 408 F2d 228, 1
BNA FEP Cas 656, 70 BNA LRRM 2843, 1 CCH EPD 9970, 59 CCH LC 9213, 12
ALR Fed 1; Jurinko v Edwin L. Wiegand Co. (1971, WD Pa) 331 F Supp 1184, 3 BNA
FEP Cas 944, 4 CCH EPD 7516, affd in part and mod in part on other grounds (CA3
Pa) 477 F2d 1038, 5 BNA FEP Cas 925, 6 BNA FEP Cas 292, 5 CCH EPD 8567, 6
CCH EPD 8843, 17 FR Serv 2d 234, vacated on other grounds 414 US 970, 38 L Ed
2d 214, 94 S Ct 293, 6 BNA FEP Cas 795, 6 CCH EPD 8884; Chrapliwy v Uniroyal,
Inc. (1977, ND Ind) 458 F Supp 252, 15 BNA FEP Cas 795, 14 CCH EPD 7708, reh
den (ND Ind) 15 BNA FEP Cas 822, 15 CCH EPD 7933.
Footnote 11. EEOC Decision No. 71-1868 (1971) 3 BNA FEP 1021, CCH EEOC Dec
6266.
Footnote 12. Long v Sapp (1974, CA5 Fla) 502 F2d 34, 8 BNA FEP Cas 1079, 8 CCH
EPD 9712, 19 FR Serv 2d 254; Bowe v Colgate-Palmolive Co. (1969, CA7 Ind) 416
F2d 711, 2 BNA FEP Cas 121, 2 BNA FEP Cas 223, 2 CCH EPD 10090, 61 CCH LC
9326, 13 FR Serv 2d 475.
FEP Cas 656, 70 BNA LRRM 2843, 1 CCH EPD 9970, 59 CCH LC 9213, 12 ALR
Fed 1.
Footnote 14. Cheatwood v South Cent. Bell Tel. & Tel. Co. (1969, MD Ala) 303 F Supp
754, 1 BNA FEP Cas 644, 2 BNA FEP Cas 33, 1 CCH EPD 9971, 2 CCH EPD
10057, 59 CCH LC 9214, 60 CCH LC 9299, 12 FR Serv 2d 948.
FEP Cas 656, 70 BNA LRRM 2843, 1 CCH EPD 9970, 59 CCH LC 9213, 12 ALR
Fed 1.
Footnote 16. Bowe v Colgate-Palmolive Co. (1969, CA7 Ind) 416 F2d 711, 2 BNA FEP
Cas 121, 2 BNA FEP Cas 223, 2 CCH EPD 10090, 61 CCH LC 9326, 13 FR Serv 2d
475.
456 State protective laws setting strength requirements

View Entire Section
When Title VII was passed, many states had legislation designed ostensibly to protect
women by limiting the amount of weight they were allowed to lift on the job. These laws
are now deemed invalid as a defense to a Title VII claim insofar as they require
employment practices that amount to sex discrimination. 17 Thus, an employer cannot
excuse a denial of jobs involving weight lifting to women on the basis of a state's
"protective" laws. 18
Footnotes
Footnote 17. 152.
Footnote 18. Manning v International Union (1972, CA6) 466 F2d 812, 64 Ohio Ops 2d
359, 4 BNA FEP Cas 1282, 5 CCH EPD 7964, cert den 410 US 946, 35 L Ed 2d 613,
457 Classifying jobs as "heavy" and "light"

View Entire Section
Classifying jobs formerly denominated "male" and "female" as "heavy" and "light" is not
unlawful discrimination if the classification is based on a sufficient analysis of the
physical requirements for each job and a review of the individual capabilities of each
female applicant or employee. 19
However, categorizing jobs as "light" and "heavy" is an unlawful employment practice

where it operates as a disguised form of classification by sex and creates unreasonable
obstacles to advancement by women into jobs they may reasonably be expected to
perform. 20
Footnotes
Footnote 19. Taylor v Goodyear Tire & Rubber Co. (1972, ND Ala) 6 BNA FEP Cas 50,
5 CCH EPD 8545.
Footnote 20. Nance v Union Carbide Corp., Consumer Products Div. (1975, WD NC)
397 F Supp 436, 13 BNA FEP Cas 211, 9 CCH EPD 10114, cause remanded on other
grounds (CA4 NC) 540 F2d 718, 13 BNA FEP Cas 231, 13 BNA FEP Cas 1810, 12 CCH
EPD 11106, 22 FR Serv 2d 247, vacated on other grounds 431 US 952, 53 L Ed 2d
268, 97 S Ct 2671, 14 BNA FEP Cas 1686, 14 CCH EPD 7580; EEOC Decision No.
71-865 (1970) CCH EEOC Dec 6190, 3 BNA FEP Cas 268.
458 Height and weight requirements; an overview

View Entire Section
The EEOC has announced its intention to analyze height and weight requirement cases
on a disparate treatment theory when the employer enforces its requirement exclusively
against one protected group or class, 21 and on a disparate impact theory when the
requirement is facially neutral and applied equally to all protected groups. 22 As
amended by the Civil Rights Act of 1991, 23 Title VII expressly prohibits employment
practices that have a disparate impact on a protected class are not shown by the employer
to be job related for the position in question or consistent with business necessity, 24
including height and weight requirements. 25 Furthermore, height and weight
requirements that are designed to measure strength, and which are components of the
same criterion, standard, method of administration, or test, may be analyzed for evidence
of disparate impact as one employment practice. 26
Under the latter theory, height and weight requirements violate Title VII if they have a
discriminatory effect on protected groupsi.e., if they disqualify a disproportionate
percentage of women or ethnic groups as compared to white malesand if they cannot be
justified by business necessity. 27 The EEOC has noted national statistics showing that
women on the average are shorter and lighter than men, resulting in their disproportionate
exclusion from the workplace by minimum height or weight requirements, 28 and has
declared that such requirements tend to exclude individuals on the basis of national
origin. 29
In order to establish that a height or weight requirement is a business necessity, the
employer must show that the requirement fosters safety and efficiency and is essential to
that goal. 30 A conclusory allegation of impairment of flexibility in job assignments
among employees is not a sufficient justification for a discriminatory height or weight
requirement. 31 Likewise, an employer's conclusory testimony as to the relationship

between a height and weight requirement and job performance, in terms of improvement
to the overall quality of the work force or plant operations, is inadequate to satisfy the
employer's burden to demonstrate "business necessity" 32 under Title VII's
burden-of-proof provision. 33
Under the Uniform Guidelines on Employee Selection Procedures, 34 and the EEOC's
National Origin Guidelines, 35 an employer who imposes height or weight requirements
must evaluate their use for adverse impact on protected groups, even where the total
selection procedure does not have an adverse impact. The Guidelines say that height and
weight requirements are exceptions to the "bottom line" concept.
Observation: Essentially, the Guidelines are saying that height and weight
requirements must always be evaluated for adverse impact and validated if impact is
found. Performing a validation study can cost the employer a great deal of time and
money. 36
Observation: Counsel for plaintiff should bear in mind that both height and weight
problems in the extreme may constitute a handicap, and be prepared to counsel clients
of their rights to proceed under statutes other than Title VII, such as the ADA or the
Rehabilitation Act, concerning employment discrimination on the basis of disability.
37
Footnotes
Footnote 21. EEOC Compliance Manual 621.1(b)(1).
Footnote 23. P.L. 102-166, 105.
Footnote 26. Interpretative Memorandum 137 Congressional Record S 15276, 10/25/91.
Footnote 27. Boyd v Ozark Air Lines, Inc. (1976, DC Mo) 419 F Supp 1061, 13 BNA
FEP Cas 529, 12 CCH EPD 11210, affd (CA8 Mo) 568 F2d 50, 17 BNA FEP Cas 827,
15 CCH EPD 7863; EEOC Decision No. 71- 1418 (1971) CCH EEOC Dec 6223, 3
BNA FEP Cas 580; EEOC Decision No. 72- 0284 (1971) CCH EEOC Dec 6304.
Annotation: Employer's height or weight requirement as unlawful employment
practice violative of Title VII of Civil Rights Act of 1964 (42 USCS 20003 et seq.),
29 ALR Fed 792.
Law Reviews: Mapes-Riordan, Sex Discrimination and Employer Weight and
Appearance Standards. 16 Empl Rel L J 493 (1991).

Footnote 29. 29 CFR 1606.6(a)(2).
FEP Cas 529, 12 CCH EPD 11210, affd (CA8 Mo) 568 F2d 50, 17 BNA FEP Cas 827,
15 CCH EPD 7863.
Footnote 31. EEOC Decision No. 71-1418 (1971) 3 BNA FEP 580, CCH EEOC Dec
6223.
Footnote 32. H Rept No. 102-40, Part 1, 4/24/91, p. 42- 43.
Footnote 35. 29 CFR 1606.6(a)(2).
Footnote 36. For a full discussion of validation under the Uniform Guidelines, see
351 et seq.
Footnote 37. As to statutes prohibiting employment discrimination on the basis of
disability, generally, see 173 et seq.
459 Statistical proof of discriminatory height and weight requirements

View Entire Section
The EEOC has announced its intention not to rely on actual applicant flow analysis in
dealing with height and weight requirements, since otherwise qualified individuals could
be discouraged from applying because of their self-recognized inability to meet the
requirements; accordingly, the application process often would not adequately reflect the
potential applicant pool. Thus, except in rare instances, it is unnecessary to prove that in
a particular job in a particular locale a particular employer's records show a
disproportionate exclusion of a certain group because of minimum height or weight
requirements. Charging parties may show instead that the employer in question has
imposed a minimum height or weight requirement that disproportionately excludes them
based on national statistics that indicate that the protected class in question is shorter or
lighter than other groups. 38
Footnotes
Footnote 38. EEOC Compliance Manual 621.1(b)(2)(i).
For a general discussion of the uses and relative merits of actual and potential applicant
flow statistics, see 2799 et seq.
460 Minimum height and weight requirements

View Entire Section
An employer that enforces a minimum weight requirement in a disparate fashion, making
exceptions to the requirement for men, but not for women, engages in sex discrimination
violative of Title VII. 39
It is also unlawful to deny equal employment opportunity to persons who, as a class, tend
to fall below national norms for height and weight, where height and weight are
unnecessary to the performance of the job in question. Specifically, minimum height or
weight job requirements violate Title VII where they have a disproportionate effect on
smaller-built groups, such as Spanish-surnamed Americans, 40 and women. 41
However, minimum height and weight requirements may be justified by business
necessity. Successful evidence introduced by employers to justify height or weight
requirements have included:
a demonstration, by the examination of a typical truck cab, that a truck driver shorter
than 5 feet 7 inches could barely see over the dashboard; 42
testimony showing that a pilot under 5 feet 5 inches tall was unable to meet the design
eye reference point of an airplane and still have free and unfettered use of all instruments
within the cockpit; 43
testimony establishing the relationship of a particular minimum height to the ability of a
laboratory aide to draw blood from patients in elevated beds. 44
On the other hand, in its Dothard decision, 45 the Supreme Court held minimum
height and weight requirements for women of 5 feet 2 inches and 120 pounds unlawful
where the employer failed to present evidence of their relationship to the strength
essential to effective job performance, since such requirements would exclude over 41%
of the nation's female population while excluding less than 1% of the male population.
Observation: The Supreme Court did not resolve the question of what would
constitute an adequate business necessity defense in order to entitle an employer to
maintain minimum height standards. EEOC decisions and court cases have, on a case
by case basis, established what factors do not constitute an adequate business necessity
defense. However, despite the implication in Dothard that sufficient evidence of the
connection between height and weight requirements and physical strength could be
used to validate such requirements, many courts appear to view such a connection with
suspicion. Minimum height and/or weight requirements seem particularly susceptible,
in the view of some courts, to abusive perpetration of the stereotype of the large male
authority figure, predicated on the erroneous equation of size with strength, agility, and
general impressiveness. A more effective method of assessing required physical

strength is the administration of performance tests that measure strength directly.
As amended by the Civil Rights Act of 1991, 46 Title VII expressly prohibits
employment practices that have a disparate impact on a protected class and are not shown
by the employer to be job-related to the position in question and consistent with business
necessity, 47 including minimum height and weight requirements. 48 For example, a
statement that fire fighting activities require physical strength cannot justify a strength
requirement for firefighters unless the degree of strength actually required for effective
job performance is also shown. 49
The First Circuit has held that a minimum height requirement did not constitute sex
discrimination where it was used to select employees from an all-female hiring list. The
court reasoned that even though the requirement would exclude substantially more
women than men, Title VII did not provide a remedy since the sexes were not in
competition. 50
Observation: The "single sex" rationale appears to be a more reasonable basis for
denying relief in minimum height and weight cases than it is other situations. 51
Footnotes
Footnote 39. Meadows v Ford Motor Co. (1973, DC Ky) 62 FRD 98, 5 BNA FEP Cas
665, 5 CCH EPD 8468, 29 ALR Fed 788, supp op (DC Ky) 62 FRD 101, 6 BNA FEP
Cas 797, 7 CCH EPD 9103, mod on other grounds (CA6) 510 F2d 939, 9 BNA FEP
Cas 180, 9 CCH EPD 9907.
(1977, SD NY) 431 F Supp 526, 18 BNA FEP Cas 63, 13 CCH EPD 11611, 23 FR
Serv 2d 1223, vacated without op (CA2) 562 F2d 38, 18 BNA FEP Cas 48, 14 CCH EPD
7697.
FEP Cas 587, 20 CCH EPD 30077; EEOC Decision No. 72-0284 (1971) CCH EEOC
Dec 6304.
employmentAllegationSex discrimination by employerRefusal to hire female based
on minimum weight qualifications. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights,
Form 111.
Complaint in federal courtDiscrimination in employment based on sexWeight
standardsFor injunctive relief. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form
120.
Allegations in complaintSex discrimination by employerRefusal to hire female
applicantDiscriminatory weight qualificationsDisparate impact [42 USCS
2000e-2(a); FRCP 8(a)]. 12 Federal Procedural Forms, L Ed, Job Discrimination
45:121.
Footnote 42. United States v Lee Way Motor Freight, Inc. (1973, WD Okla) 7 BNA FEP
Cas 710, 7 CCH EPD 9066, later op (WD Okla) 7 BNA FEP Cas 751, 7 CCH EPD
9067.
CCH EPD 7863.
Footnote 46. P.L. 102-166, 105.
Footnote 50. Costa v Markey (1982, CA1 Mass) 706 F2d 1, 31 BNA FEP Cas 1324, 32
CCH EPD 33622.
Footnote 51. See 149 for a general discussion of the question in the context of sex
discrimination.
461 Maximum height requirements

View Entire Section
Some height requirements for employees such as flight attendants and pilots are
composed of height ranges, that is, 5'7" to 6'2". The maximum height requirements have
not been extensively dealt with either in EEOC decisions or court cases. In what is
probably the only reported decision on the question, it was held that an employer violated
Title VII by imposing a shorter maximum height requirement for women airline flight
attendants than for male pursers. 52
Footnotes
Footnote 52. Laffey v Northwest Airlines, Inc. (1973, DC Dist Col) 366 F Supp 763, 6
BNA FEP Cas 902, 9 BNA FEP Cas 881, 6 CCH EPD 8930.
462 Maximum weight requirements

View Entire Section
Go to Supplement
An employer's imposition of a maximum weight requirement for employees does not
violate Title VII if the requirement is related to job performance. With respect to obesity,
the courts have upheld an employer's refusal to hire an applicant where her physical
condition rendered her unfit for employment, 53 or interfered with her ability to perform
the duties of her job. 54 Likewise, a maximum weight limitation of 225 pounds for
truckdrivers between the heights of 5'7" and 6'2" was upheld upon a demonstration that
larger individuals would not fit behind the steering wheels in the employer's trucks. 55
As amended by the Civil Rights Act of 1991 56 Title VII expressly requires that any
employment practice that has a disparate impact on a protected group be shown by the
employer to be job-related for the position in question and consistent with business
necessity, 57 including a maximum weight requirement. 58
Several decisions have upheld policies based on medically recognized distinctions
between the sexes that set a higher maximum weight for men than for women of the same
height, noting a key consideration the fact that no significantly greater burden of
compliance is imposed on either sex. 59 The EEOC has ruled that the rejection of an
applicant on the basis of the company's maximum weight policy, which was based on
widely accepted life insurance company-generated height-weight tables, and included a
thirty-five pound leeway, was not unlawful. 60
The EEOC has also announced that as long as differing height/weight standards are not
unreasonable in terms of medical considerations and employees' ability to comply and are
consistent with accepted medical notions of good health, and exemptions are available
for those medically unable to comply, the use of different standards is not discriminatory.
61
However, the Ninth Circuit has declared unlawful maximum weight rules that are applied
to a class of employees because of their sex rather than because of the requirements of
the job, holding that Title VII is not limited in its protection to jobs that include both
sexes. 62
Observation: Maximum weight limitations have not fared well when based on
employers' perceptions of customer preferences. Most courts have rejected reliance on
such preferences, holding that they are rooted in stereotyped thinking and are only
tangential to the conduct of the business. 63
462 ----Maximum weight requirements [SUPPLEMENT]
Practice Aids: Protecting overweight workers against discrimination: Is disability or
appearance the real issue? 20 Emp Rel LJ 1:133 (1994).
Weight-based discrimination and the Americans with Disabilities Act: Is there an end in
sight? 13 Hofstra Lab LJ 1:209 (1995).
Obesity as a legal disability under the ADA, Rehabilitation Act, and state handicapped
employment laws, 44 Lab LJ 286 (1993).
A weighty decision by the California Supreme Court: Obesity alone is not a protected
class, 40 Med Tr Tech Q 327 (1994).
Footnotes
Footnote 53. Logan v General Fireproofing Co. (1972, WD NC) 6 BNA FEP Cas 140, 5
CCH EPD 8012.
Footnote 54. Johnson v Pittsburgh-Des Moines Steel Co. (1970, DC Ala) 2 BNA FEP
Cas 668, 2 CCH EPD 10215.
Practice References 36 Am Jur POF2d 249, Discrimination Against the Obese.
Law Reviews: Employment Discrimination Against Overweight Individuals: Should
Obesity be a Protected Classification? 30 Santa Clara L Rev 951 (1990).
McEvoy, Fat Chance: Employment Discrimination Against the Overweight. 43 Lab L
J 3 (1992).
Footnote 55. U.S. v Lee Way Motor Freight, Inc. (1973, WD Okla) 7 BNA FEP Cas 710,
7 CCH EPD 9066.
Footnote 56. P.L. 102-166, 105.
Footnote 59. Jarrell v Eastern Air Lines, Inc. (1977, DC Va) 430 F Supp 884, 14 BNA
FEP Cas 799, 17 CCH EPD 8462, affd (CA4 Va) 577 F2d 869, 17 BNA FEP Cas 951,
17 CCH EPD 8373; Comstock v Eastern Air Lines (1975, ED Va) 10 BNA FEP Cas
889, 10 CCH EPD 10392; Re National Airlines, Inc. (1977, SD Fla) 434 F Supp 269,
Footnote 60. EEOC Decision No. 74- 14 (1973) CCH EEOC Dec 6393.
Footnote 61. EEOC Compliance Manual 621.5(d).
Footnote 62. Gerdom v Continental Airlines, Inc. (CA9 Cal) 692 F2d 602, 30 BNA FEP
Cas 235, 30 CCH EPD 33156.
Footnote 63. 497.
As to the role of customer preference with respect to appearance and grooming

requirements, generally, see 496 et seq.
463 AIDS policies and testing; generally

View Entire Section
Go to Supplement
While the Rehabilitation Act does not directly address AIDS in the context of its
handicap discrimination prohibitions, federal regulations and judicial interpretations of
whether individuals with AIDS are persons protected by that statute are discussed
elsewhere. 64
Testing for AIDS or HIV-related conditions may be justified under 501 of the
Rehabilitation Act when the risk of AIDS or HIV-related infection poses a threat to the
health and safety of employees in particular work environments or to the successful
performance of particular jobs. For example, mandatory blood testing of the State
Department's Foreign Service employees for HIV infection was necessary in order to
avoid the potential for serious harm to the Department's employees and its work.
Infected individuals were considered medically unfit for worldwide service because the
sanitary conditions at many foreign posts would contribute to a higher frequency of
opportunistic infections while the available medical care is often inadequate to address
some of the life-threatening symptoms. The use to which the Department put the results
of its testing program was reasonably tailored to its legitimate interests in workplace
safety and uninterrupted job performance, since they would only be used to exclude
positive-testing applicants from foreign service employment. Current HIV-positive
employees would continue to be employed with limited medical clearances. 65
The Office of Federal Contract Compliance Programs prohibits contractors subject to
503 of the Rehabilitation Act from using HIV antibody tests which tend to screen out
qualified persons handicapped by HIV-related conditions, unless the requirement can be
shown to be job related or consistent with business necessity and safe job performance,
since threats to health, safety, and job performance should be assessed on a case-by-case
basis. 66
Pre-employment testing for HIV infection may be distinguished from posthiring testing
under 504 under the Rehabilitation Act. Posthiring testing is less likely than
pre-employment testing to be seen as a pretext for unlawful discrimination because
employers have more compelling interests in monitoring the health status of individuals,
providing them with reasonable accommodations, and promoting their health and safety
after the individuals have entered the employers' workforces. For example, it was not
unlawful for a hospital to require a nurse to undergo a test for HIV infection after his
roommate had died of AIDS-related complications. The hospital had a legitimate need to
know the results in order to protect the employee from an otherwise unfounded
employment decision, and to determine whether it was necessary to protect the employee
from opportunistic infections and whether a reasonable accommodation could or should
be made. 67
State aspects: For discussion of state statutes regulating an employer's ability to

require or use as a condition of employment a test for determining whether applicants
or employees have acquired immunodeficiency syndrome (AIDS), see Employment
Coordinator EP-18,448.5.
463 ----AIDS policies and testing; generally [SUPPLEMENT]
Practice Aids: Managing AIDS in the workplace, 19 Emp Rel LJ 53 (1993).
Footnotes
Footnote 64. 190.
Footnote 65. Local 1812, American Federation of Government Employees v U.S. Dept.
of State (1987, DC Dist Col) 662 F Supp 50, 43 BNA FEP Cas 955, 2 BNA IER Cas 47,
43 CCH EPD 36985.
Law Reviews: Fagot-Diaz, Employment Discrimination Against AIDS Victims:
Rights and Remedies Available Under the Federal Rehabilitation Act of 1973. 39 Lab
L J 148 (1988).
Footnote 66. OFCCP Federal Contract Compliance Manual Appx 6D subd 5.B.
Footnote 67. Leckelt v Board of Comrs. (1989, ED La) 49 BNA FEP Cas 541, 4 BNA
IER Cas 383.
464 --Constitutionality of AIDS testing

View Entire Section
Go to Supplement
A public employer's mandatory testing of employees for both the AIDS virus and
hepatitis B could not be justified under the Fourth Amendment's prohibition against
unreasonable searches and seizures. In balancing the intrusive nature of the invasion of
privacy interests protected by the constitution, against the miniscule and trivial risk of the
employer's retarded clients contracting the diseases through biting or scratching infected
employees, the court found the testing program to be an unreasonable search. However,
the court refused to impose a comprehensive rule against all such programs, and stated
that some infectious disease testing could be constitutional. 68
A public employer's mandatory HIV blood testing policy for firefighters and paramedics
during their annual physical examination was not an unreasonable search and seizure, nor
a violation of their right to privacy under the U.S. Constitution. Firefighters and
paramedics are in a high-risk group for contracting and transmitting the HIV virus. They
have a diminished expectation of privacy in one of the most highly regulated
occupations. Therefore, the government has a compelling interest in protecting the public
from the contraction and transmission of AIDS by these employees that outweighs their
privacy interests. Furthermore, mandatory AIDS testing is permissible for high-risk jobs
when the employer can demonstrate that universal precautions and voluntary testing will
not prevent the contracting or spread of AIDS. 69
Observation: The different outcomes in Glover 70 and Anonymous Fireman 71

suggest that the constitutionality of AIDS testing will continue to be evaluated on an
occupation-by-occupation basis, in which the risk of transmission is balanced against
the intrusive nature of the privacy invasion caused by such testing.
Observation: Similar constitutional questions have arisen, for both public and
private employers, concerning substance abuse testing. 72 Those cases may provide
useful guidance in demonstrating how constitutional standards will be applied in the
context of AIDS testing.
464 --Constitutionality of AIDS testing [SUPPLEMENT]
Practice Aids: Drug testing in the workplace, 12 Leg Management 5:28 (1993).
Drug testing of employees and applicants: Legal and practical considerations for private
employers in New York, 66 NY St BJ 2:14 (1994).
Footnotes
Footnote 68. Glover v Eastern Nebraska Community Office of Retardation (1989, CA8) 4
BNA IER Cas 65.
Footnote 69. Anonymous Fireman v Willoughby (1991, ND Ohio) 779 F Supp 402, 7
BNA IER Cas 17.
Footnote 70. Glover v Eastern Nebraska Community Office of Retardation (1989, CA8) 4
BNA IER Cas 65.
Footnote 71. Anonymous Fireman v Willoughby (1991, ND Ohio) 779 F Supp 402, 7
BNA IER Cas 17.
f. Freedom From Substance Abuse; Consent to Drug Testing [465-495]
(1). In General [465-469]
465 Generally
View Entire Section
Go to Supplement
Some employers have sought to curb drug and alcohol abuse, to remedy related lost
production time and workplace accidents among their employees by implementing
comprehensive substance abuse policies. These policies may include mandatory drug
testing, searches of employees and their property at the work place, rules prohibiting both
the presence of drugs or alcohol at the workplace and working while under their
influence, discipline for rules violations, and rehabilitation programs. Partly depending
on whether an employer is in the private or public sector, many different concerns are
raised by these policies both regarding the method used to detect substance abuse and the
handling of suspected abuse. To the extent that employer prohibitions of drug or alcohol
use involve issues of discriminatory impact or treatment, these are discussed elsewhere.
73
Practice Aids: 28 Am Jur Proof of Facts 3d 185, Proof of Violation of Privacy Rights
in Employment Drug Testing
Case authorities:
Employee, discharged after testing positive for THC, cannot pursue claims against utility
in federal court, even though he alleges that his claim arose in part under Drug Free
Workplace Act of 1988 (41 USCS 701 et seq.), where complaint relies upon drug
testing requirements promulgated under other statutes and identifies no regulations
implementing Act, because court lacks subject matter jurisdiction since utility was acting
under no governmental compulsion in drug testing employee and was not state actor.
Parker v Atlanta Gas Light Co. (1993, SD Ga) 818 F Supp 345, 8 BNA IER Cas 721.
Arbitrator's decision upholding FAA's removal of Air Traffic Control Specialist for
tampering with urine specimen during random drug test was supported by substantial
evidence as required by collective bargaining agreement, including arbitrator's finding
that violation of DOT's chain-of-custody procedures did not prejudice employee because
there was no evidence that anyone else had access to specimen during brief time it was
left unattended. Frank v Department of Transp., FAA (1994, CA FC) 35 F3d 1554, 9
BNA IER Cas 1591, reh, en banc, den (1994, CA FC) 1994 US App LEXIS 30953.
Footnotes
466 Legality of rules barring employment of illegal drug users under Title VII
View Entire Section
As amended by the Civil Rights Act of 1991, 74 Title VII permits an employer to adopt
or apply a rule barring the employment of individuals who engage in unlawful drug use,
unless done so with the intent to discriminate on the basis of race, color, religion, national
origin, or sex. 75 This provision is intended to balance the employer's need to have
work force unencumbered by illegal drug use, even if a practice excluding illegal drug
users had a disparate impact on classes protected under Title VII, against society's
interest in a discrimination-free workplace. 76
Footnotes
Footnote 74. P.L. 102-166 105(a).
467 Statutory and regulatory liability concerning private employer substance

abuse policies
View Entire Section
Private employers obtaining federal contracts or grants have an obligation to maintain a
drug-free workplace under federal law. 77 Special requirements to conduct drug testing
for certain positions are mandated for contractors with the Department of Defense. 78
Employers subject to either the Americans with Disabilities Act (ADA) or the
Rehabilitation Act, are expressly allowed to maintain particular substance abuse policies
and to conduct specified testing. 79
State aspects: The adverse application of a particular substance abuse testing policy
against a handicapped person could result in liability for a private employer subject to
the handicap discrimination prohibitions in a state's law. 80
Footnotes
Footnote 77. 472-475.
Footnote 78. 476.
Footnote 80. For a discussion of such laws, see Employment Coordinator
EP-18,460.7EP-18,460.47.
468 Common-law liabilities relating to private employer substance abuse policies

View Entire Section
Private employers that seek to implement comprehensive drug and alcohol abuse policies
in the workplace must be concerned about their potential liability under various
common-law obligations. Specifically, such potential liability includes negligently hiring
a known substance abuser who causes another harm, 81 and liability for wrongful
discharge, unjust dismissal, a breach of individual employment contracts, or other tort
liabilities, including defamation.
Footnotes
Footnote 81. 53 Am Jur 2d Master & Servant 422.
469 Constitutional restraints on private employer substance abuse testing

View Entire Section
Go to Supplement
Although the Fourth Amendment's protection against unreasonable searches and seizures
does not apply to a private party acting on its own initiative, the protection does apply to
a private person's search if the government is a participant in the activity to a significant
degree. 82
The extent of the government's participation is examined in the context of
all of the surrounding circumstances. 83
The mere fact that a private employer is not
compelled by the government to conduct a particular search is not, by itself, sufficient to
conclude that the search is private and, therefore, outside of the Fourth Amendment's
reach.
Under this standard, a railroad's drug and alcohol testing of employees under regulations
of the Federal Railroad Administration (FRA) did implicate Fourth Amendment

protections, because of the government's clear encouragement, endorsement, and
participation. Factors in the regulations that contributed to this holding included:
the pre-emption of state laws, rules, and regulations covering the same subject matter;
the supersession of any provision in either a collective bargaining agreement or an
arbitration award construing the agreement;
FRA's right to receive biological samples and test results in certain circumstances;
the railroad employer's inability to divest itself of, or compromise by contract, the
obligation to conduct certain testing;
an employee's compulsion to submit to required testing at the risk of losing his ability to
be certified as a worker in that service. 84
Observation: While Skinner arose in the context of a particular set of regulations

concerning substance abuse testing by a railroad employer, it is reasonable to conclude
that it is equally applicable to all regulated transportation employers 85 and to any
private employer who may in the future be required to conduct substance abuse testing
under any federal statute or regulation.
Not only federal, but also state imposed regulations compelling drug testing by private
employers may engender constitutional scrutiny under the Fourth Amendment. For
example, state required drug testing of certain occupational license holders in the horse
racing industry constituted a "search" that had to meet the Fourth Amendment's
reasonableness standard. 86
469 ----Constitutional restraints on private employer substance abuse testing
[SUPPLEMENT]
Case authorities:
Summary judgment is granted fire officials on probationary firefighter's 1983 complaint
that drug test violated Fourth Amendment, where fire chief ordered test after firefighter
had been arrested for trespass in known drug location and did not report it, had been
absent 3 times in less than 2 months as probationary firefighter and twice on Fridays, and
had canceled several preappointment medical examinations, because officials had
reasonable suspicion based on objective, identifiable facts to require him to take drug
urinalysis test. Nocera v New York City Fire Comm'r (1996, SD NY) 921 F Supp 192.
Jury's verdict for $250,001 in favor of discharged custodian is upheld, even though jury's
peculiar and seemingly inconsistent apportionment of award to specific time periods was
questionable, because award of $250,000 intangible damages for emotional and
reputational injury caused by result of unconstitutional drug test was fully supported by
evidence, and jury's allocation of that award to period following union's settlement of
custodian's grievance was not entirely unreasonable since settlement was effectively
administrative "conviction" of marijuana use. Bolden v Southeastern Pa. Transp. Auth.
(1993, ED Pa) 820 F Supp 949, 8 BNA IER Cas 912, 143 BNA LRRM 2458.
Footnotes
Footnote 82. Lustig v United States (1949) 338 US 74, 93 L Ed 1819, 69 S Ct 1372,
Byars v United States (1927) 273 US 28, 71 L Ed 520, 47 S Ct 248.
Footnote 83. Coolidge v New Hampshire (1971) 403 US 443, 29 L Ed 2d 564, 91 S Ct
2022.
Footnote 84. Skinner v Railway Labor Executives' Asso. (1989, US) 109 S Ct 1402, 49
CCH EPD 38791, 130 BNA LRRM 2857, 13 BNA OSHC 2065.
Footnote 85. For a discussion of the law governing substance abuse testing of
transportation workers, see Employment Coordinator EP-18,451.50 et seq.
Footnote 86. Dimeo v Griffin (1991, CA7) 943 F2d 679, 6 BNA IER Cas 1288, 120 CCH
LC 56789.
For a discussion of the application of Fourth Amendment standards to substance abuse
testing programs, see 482-491.
(2). Permissible Substance Abuse Policies and Testing Under the ADA and
Rehabilitation Act [470-495]
470 Employer substance abuse policies allowed under the ADA and
Rehabilitation Act
View Entire Section
Go to Supplement
The Americans with Disabilities Act (ADA) 87 and the Rehabilitation Act 88 permit
employers to administer reasonable policies, including drug testing policies, 89 that are
designed to ensure that former illegal drug users, who have completed or are participating
in rehabilitation programs, are no longer engaging in such illegal drug use.
Observation: Current use of such drugs places the individual outside of the
protection of both statutes' handicap and disability discrimination protections. 90
Additionally, the ADA expressly permits employers to have a substance abuse policy
that:
prohibits the illegal use of drugs, and the use of alcohol in the workplace; 91
requires employees to refrain from the use of illegal drugs, and not to be under the
influence of alcohol in the workplace; 92

requires employees to conform with the requirements of the Drug- Free Workplace Act;
93
applies the same standards of qualifications and job performance to illegal drug users
and alcoholics that are applied to all other employees; 94
requires employees to abide by applicable drug and alcohol use regulations of the
Department of Defense, 95 the Nuclear Regulatory Commission, 96 and the
Department of Transportation. 97
Definitions of individuals protected by both of these laws, including those who engage in
alcohol and drug use, and definitions of the terms "drug" and "illegal use of drugs," are
discussed elsewhere. 98 While some medical conditions were expressly excluded from
the definition of "disability," such as individuals currently engaged in the illegal use of
drugs, individuals disabled by alcoholism are entitled to the same protections accorded to
all other individuals with disabilities. 99
470 ----Employer substance abuse policies allowed under the ADA and
Rehabilitation Act [SUPPLEMENT]
Statutes:
Case authorities:
Former bus operator, who alleges that his employer violated 504 of Rehabilitation Act
(29 USCS 794) by terminating him after he had participated in drug treatment
program, has failed to present evidence that he was discharged solely on basis of
disability, and thus cannot establish prima facie case under 504, where he failed to
complete drug treatment program as required by settlement agreement with employer.
Laverpool v New York City Transit Auth. (1993, ED NY) 836 F Supp 1440, 4 ADD
353.
Footnotes
Footnote 87. 42 USCS 12210(b)(3).
Footnote 89. 471.
Footnote 90. 191 (Rehabilitation Act) and 215 (ADA).
Footnote 91. 42 USCS 12114(c)(1).

Footnote 92. 42 USCS 12114(c)(2).
Footnote 93. 42 USCS 12114(c)(3).
As to the provisions of the Drug-Free Workplace Act, generally, see Employment
Coordinator EP-18,451.8 et seq.
Footnote 94. 42 USCS 12114(c)(4).
Footnote 95. 42 USCS 12114(c)(5)(A).
As to the Department of Defense regulations, see Employment Coordinator
EP-18,451.15.
Footnote 96. 42 USCS 12114(c)(5)(B).
Footnote 97. 42 USCS 12114(c)(5)(C).
As to the Department of Transportation regulations, see Employment Coordinator
EP-18,451.50 et seq.
471 Employer substance abuse testing policies under the ADA

View Entire Section
Go to Supplement
The Americans with Disabilities Act (ADA) expressly states that the Act is not to be
construed to encourage, prohibit, or authorize an employer to conduct drug testing on job
applicants or employees, or to make employment decisions based on test results. 1 Nor
does the ADA affect the otherwise lawful conduct of employers who conduct drug testing
or test for on-duty alcohol impairment under applicable regulations of the Department of
Transportation. 2 However, the ADA expressly permits a substance abuse policy that
includes the testing of former illegal drug users, if such testing complies with applicable
federal, state, or local laws or regulations regarding quality control, confidentiality, and
rehabilitation. 3
The Act further states that a test for the use of illegal drugs is not to be considered a
medical examination. 4
Caution: Tests to detect the illegal use of drugs may also reveal the presence of
lawfully used drugs. If a person is excluded from a job because an employer
erroneously regarded the employee as an addict currently using drugs illegally when
the drug test revealed the presence of a lawfully prescribed drug, the employer would
be liable under the ADA. In order to avoid this potential liability, the employer would
have to determine whether the individual was using a legally prescribed drug.
Recommendation: Since the ADA prohibits an employer from asking what

prescription drugs an individual is taking before a conditional offer of employment is
made, employers should conduct drug tests after making an offer of employment. Since
applicants who test positive for illegal drugs are not covered by the ADA, an offer of
employment can be withdrawn on the basis of illegal drug use.
Definitions of the terms "drug" and "illegal use of drugs" in the context of disability
discrimination prohibitions are discussed elsewhere. 5
471 ----Employer substance abuse testing policies under the ADA
[SUPPLEMENT]
Footnotes
As to the Department of Transportation regulations, see Employment Coordinator
EP-18,451.50 et seq.
Footnote 3. S Rept No. 101- 116, 8/30/89, p. 41.
Footnote 4. As to medical examinations of disabled persons generally, see 445.
Footnote 5. 215.
(3). Duty to Maintain a Drug-Free Workplace [472- 477]
472 Which employers must maintain a drug-free workplace

View Entire Section
Go to Supplement
The Drug-Free Workplace Act of 1988 6 requires all federal contractors that wish to be
considered a "responsible source" under the Office of Federal Procurement Policy Act 7
for the purposes of securing any contract for property and services in excess of $25,000
to take certain actions to provide a drug-free workplace. 8
While construction contracts are covered by the Act, 9 contracts or parts of contracts
that are to be performed outside of the United States or its territories or possessions, 10
and contracts awarded with nonappropriated funds are excluded from the provisions of
the statute. 11
Also, any person wishing to receive a grant from any federal agency must take specified
steps to provide a drug-free workplace. 12
A "grant" includes any award of financial assistance, including cooperative agreements,
property in lieu of money, block grants, and entitlement grants programs. The term
excludes technical assistance providing services instead of money, loans or loan
guarantees, interest subsidies, insurance, direct appropriations, and veterans' benefits.
Furthermore, only an employer who applies for and receives a grant directly from a
federal agency in the executive branch, or from any independent regulatory agency, is
required to comply with the statute. 13
Illustration: A federal agency provides a grant to a state agency which, in turn,

passes it to other entites. Only the state agency is required to maintain a drug- free
workplace. 14
The Drug-Free Workplace Act will not be applied to any grant 15 or contract 16 if the
law's application would be inconsistent with the international obligations of the United
States, or with the laws or regulations of a foreign government.
The final rule adopted for implementing the requirements of The Drug-Free Workplace
Act of 1988 throughout the federal government states that either the agency head or his
designee may make the determination as to whether the Act's application to a particular
grant or contract would be inconsistent with the international obligations of the U.S. or
with the laws or regulations of a foreign government. 17
While contractors and grantees performing work in federal facilities are covered by the
statute, the Act does not include third-party reimbursements to hospitals under Medicare,
nor does it concern the sale of U.S. Treasury Bonds by banks or other financial
institutions. 18
Prior to March 18, 1989, such employers did not have a duty to provide a drug-free
workplace under the Act. 19
472 ----Which employers must maintain a drug-free workplace [SUPPLEMENT]
Regulations:
48 CFR 23.501, amended in 1995, redesignated paragraphs (b)-(d) as (c)-(e) and added
a new (b) which adds contracts for the acquisition of commercial items.
Footnotes
Footnote 6. 41 USCS 701, note.
Footnote 9. 48 CFR 2.101; 54 Fed Reg 4946, 1/31/89
Footnote 11. 54 Fed Reg 4946, 1/31/89.
Footnote 13. 54 Fed Reg 4951, 1/31/89.
Footnote 14. 54 Fed Reg 4948, 1/31/89.
Footnote 15. 54 Fed Reg 4951, 1/31/89
Footnote 16. 48 CFR 23.501(d), 23.505(b)(3).
Footnote 17. 55 Fed Reg 21869, 5/25/90.
Footnote 18. 54 Fed Reg 4946, 1/31/89.
Footnote 19. 41 USCS 701, note.
The requirement of federal government employers to maintain a drug-free workplace is
discussed at 478.
473 Specific employer obligations

View Entire Section
Government contractors and grantees covered by the Drug-Free Workplace Act of 1988
must make a good-faith effort 20 to implement the following actions:
publish a statement notifying employees that the unlawful manufacture, distribution,
dispensation, possession, or use of a controlled substance is prohibited in the workplace,
and that specified actions will be taken for violations of the policy; 21 establish a
drug-free awareness program informing employees about the danger of drug abuse in the
workplace, the policy of maintaining a drug-free workplace, the availability of drug
counseling, rehabilitation, and employee assistance programs, and the penalties imposed
for drug abuse violations; 22
provide a copy of the policy statement against drug use in the workplace to each
employee engaged in the performance of a contract or grant; 23
notify all employees that as a condition of their employment on a contract or grant, they
must abide by the terms of the policy statement, and must notify the employer of any
criminal drug statute conviction for a violation occurring in the workplace no later than
five days after that conviction; 24
notify the contracting or grant providing agency of any criminal drug statute convictions
occurring in the workplace within 10 days from either receiving notice from the
convicted employee or from receiving actual notice of such a conviction; 25
either impose a sanction on, or require satisfactory participation in a drug abuse
assistance or rehabilitation program by any employee convicted of a criminal drug statute
violation occurring in the workplace. 26
In this context, a "controlled substance" means any substance listed in Schedules I
through V of 202 of the Controlled Substances Act (21 USCS 812). 27
Furthermore, an "employee" means a person directly engaged in the performance of work
under the provision of the grant or contract, 28 "convictions" include pleas of nolo
contendere, 29 and "criminal statutes" include state and federal prohibitions against the
manufacture, distribution, dispensing, use, or possession of any controlled substance. 30
Employer grantees are required to make the mandatory certifications for each grant. 31
The Act does not require any contractor or grantee to conduct drug testing on any
employee. 32
Footnotes
Footnote 20. 41 USCS 701(a)(1)(G), 702(a)(1)(G).
Footnote 21. 41 USCS 701(a)(1)(A), 702(a)(1)(A).
Footnote 22. 41 USCS 701(a)(1)(B), 702(a)(1)(B).
Footnote 23. 41 USCS 701(a)(1)(C), 702(a)(1)(C).
Footnote 24. 41 USCS 701(a)(1)(D), 702(a)(1)(D).
Footnote 25. 41 USCS 701(a)(1)(E), 702(a)(1)(E).
Footnote 26. 41 USCS 701(a)(1)(F), 702(a)(1)(F).

Footnote 30. 41 USCS 706(5); 54 Fed Reg 4950-4951 1/31/89, 48 CFR 23.503,
52.223-5(a), 52.223-6(a).
Footnote 31. 54 Feb Reg 4951 1/31/89.
Footnote 32. 54 Fed Reg 4946 1/31/89.
For a discussion of contractor drug testing of employees under drug-free workplace rules
established by the Department of Defense, see 476.
474 Adoption of rules to implement drug-free workplace requirements

View Entire Section
The Drug-Free Workplace Act of 1988 authorizes granting and contracting agencies to
adopt government-wide regulations to implement the statute, pursuant to the Office of
Federal Procurement Policy Act (41 USCS 401 et seq.). 33
Contracting regulations have been issued amending the Federal Acquisition Regulation,
34 and the Office of Management and Budget (OMB) has issued uniform regulations to
be adopted by the various covered granting authorities. 35
Departments and agencies adopting the OMB's regulations concerning the
implementation of the Drug-Free Workplace Act with respect to grantee employers
include the:
ACTION; 36
African Development Foundation; 37
Agency for International Development; 38
Commission on the Bicentennial of the United States Constitution; 39
Department of Agriculture; 40
Department of Commerce; 41
Department of Defense; 42
Department of Education; 43
Department of Energy; 44
Department of Health and Human Services; 45
Department of Housing and Urban Development; 46
Department of the Interior; 47
Department of Justice; 48
Department of Labor; 49
Department of State; 50
Department of Transportation; 51
Environmental Protection Agency; 52
Federal Emergency Management Agency; 53
Federal Home Loan Bank Board; 54
Federal Medication and Conciliation Service; 55
General Services Administration; 56
Institute of Museum Services; 57
Inter-American Foundation; 58
Internal Revenue Service; 59
National Aeronautics and Space Administration; 60
National Archives and Records Administration; 61
National Endowment for the Arts; 62
National Endowment for the Humanities; 63
National Science Foundation; 64
Office of the Secretary of the Treasury; 65
Peace Corps; 66
Small Business Administration; 67
United States Information Agency; 68
Veterans Administration; 69
Footnotes
Footnote 34. 48 CFR Subparts 9.4, 23.5, 52.2.
Footnote 35. 54 Fed Reg 4946, 1/31/89.
Footnote 56. 41 CFR Part 101-50 and 105-68.

475 Enforcement and waivers

View Entire Section
When the head of a contracting or granting agency determines that a grantee or contractor
subject to the Drug-Free Workplace Act of 1988 has not made a good-faith effort to abide
by required certifications, that a false certification has been made, that the number of
employees of a contractor or grantee that have been convicted of violations of criminal
drug statutes occurring in the workplace indicate that the employer has failed to make a
good-faith effort to provide a drug-free workplace, or that the requirements of the
regulations have otherwise not been carried out, the contractor or grantee is subject to
suspension of payments, or supervision or termination of the contract or grant, or to
debarment from future opportunities to receive contracts or grants. 70 A contractor
may be debarred for up to 5 years after being provided with a full and fair administrative
proceeding, under applicable administrative procedures, and in accordance with the
Federal Acquisition Regulation. 71 A grantee employer is subject to debarment for not
more than 5 years under applicable law, Executive Order 12549, or any superseding
executive order, and applicable regulations. 72 Contractor and grantee employers may
suffer debarment for a lesser number of years, commensurate with the seriousness of the
offense. 73 Debarments are applicable throughout the entire executive branch of the
government, unless an agency head exercises the waiver option in writing. 74
Sanctions may be imposed against a grantee employer's entire organization, or just the
department, division, or other unit of the organization responsible for work being
performed under the grant. 75
The head of a contracting agency may waive any penalties if he determines that
suspension of payments, termination of the contract, suspension or debarment of the
contractor, or the refusal to treat the contractor as a "responsible source," would severely
disrupt the operation of the contracting agency to the detriment of the federal government
or the general public. 76 Likewise, the Act permits the head of a granting agency to
waive the application of the penalty provisions if he determines that the suspension of
payments, termination of the grant, or suspension or debarment of the grantee would not
be in the public interest. 77 This waiver authority given to the agency head cannot be
delegated. 78 Finally, the head of a law enforcement agency is given the discretion not
to impose drug-free workplace obligations on contractor or grantee employers if he
determines that it would be inappropriate in connection with the agency's undercover
operations. 79
Footnotes
Footnote 70. 41 USCS 701(b)(1), 702(b)(1).
Footnote 71. 41 USCS 701(b)(2), (3).
Footnote 72. 41 USCS 702(b)(2), (3).
Footnote 73. 48 CFR 9.406-4(a); 54 Fed Reg 4950, 1/31/89.
Footnote 74. 48 CFR 9.406-1(c), 9.407-1(d); 54 Fed Reg 4951, 1/31/89.
Footnote 75. 54 Fed Reg 4949 1/31/89.
476 Special requirements for some Defense Department contractor employers

View Entire Section
While the Department of Defense is also obligated to implement the provisions of the
Drug-Free Workplace Act of 1988, 80 which does not require any employer testing of
employees, the agency has special requirements concerning certain contracts issued after
October 31, 1988, as implemented through its Federal Acquisition Regulations

Supplement (DFARS). All contracts involving access to classified information, and any
other contract the agency's contracting officer determines appropriate for reasons of
national security or health and safety (except for a contract or part of a contract to be
performed outside of the United States), must include a provision obligating the
contractor to establish a program for testing employees in "sensitive positions" for the
use of illegal drugs as part of the contractor's duty to maintain a drug-free workplace.
The extent of and criteria for such testing is to be determined by the contractor, based on
the nature of the work being performed, the employee's duties, the efficient use of
contractor resources, and the risks to health, safety, or national security that could result
from poor employee performance.
In this context, "sensitive positions" include those which have access to classified
information, or those involving national security, health or safety, or other functions
requiring a high degree of trust and confidence.
"Illegal drugs" are those referred to in 21 USCS 802(6), and do not include any
controlled substance used under a valid prescription, or used as authorized by law.
However, the drug testing requirement will not apply if it is inconsistent with state or
local law, or a collective bargaining agreement. With respect to bargaining agreements,
the contractor must pledge to raise any inconsistent provisions at the next session of
negotiations. 81
Footnotes
Footnote 80. 472-475.
54 Fed Reg 4946, 1/31/89.
Footnote 81. DFARS Subpart 252 252.223-7500.
477 Drug and alcohol testing requirements for NASA employees and contractors
View Entire Section
The Civil Space Employee Testing Act of 1991 82 requires the immediate establishment
of a program to test for use of alcohol and controlled substances by employees of the
National Aeronautics and Space Administration (NASA) whose duties include
responsibility for safety-sensitive, security, or national security functions. 83 By June 9,
1993, NASA must issue regulations which require the establishment of a similar testing
program by NASA contractors for alcohol and controlled substance use by their
employees having such responsibilities. 84 Both of these required testing programs
must provide for pre-employment, reasonable suspicion, random, and post-accident
testing, and they may also include periodic recurring testing if warranted. 85
Furthermore, the testing procedures must incorporate the Department of Health and
Human Services mandatory testing and recordkeeping procedures applicable to federal

workplace drug testing programs under Executive Order 12564. 86
NASA may require the suspension, disqualification, or dismissal of any NASA employee
or NASA contractor employee who tests positive for the use of alcohol or a controlled
substance. 87
No individual who has tested positive may serve as a NASA employee or a NASA
contractor employee in a position having safety-sensitive, security, or national security
functions unless the individual has completed a rehabilitation program prescribed by
regulation. 88 Furthermore, no individual who tests positive for alcohol or a controlled
substance can be permitted to perform his pretesting duties if he:
engaged in such use while on duty;
had entered or completed a rehabilitation program before such use;
refused to enter a rehabilitation program following a positive test; or
failed to complete a rehabilitation program following a positive test. 89
At a minimum, such a rehabilitation program must provide for the identification and
opportunity for treatment of NASA employees with safety- sensitive, security, or national
security functions, who are in need of assistance in resolving problems with use of
alcohol or controlled substances. Cooperative rehabilitation programs between more
than one NASA contractor are also permitted. 90
"Controlled substances" are those referred to in 21 USCS 802(6). 91
State and local governments may not adopt or give effect to any law, rule, regulation,
ordinance, standard, or order that is inconsistent with regulations issued under the Civil
Space Employee Testing Act of 1991. 92 However, NASA may continue to enforce,
amend, or supplement any current regulations which govern the use of alcohol or
controlled substances by employees with responsibility for safety-sensitive, security, or
national security functions, or by NASA contractor employees with such responsibilities.
93
Footnotes
Footnote 82. 42 USCS 2473c(a).
Footnote 83. 42 USCS 2473c(c)(1).
Footnote 85. 42 USCS 2473c(c)(1), 2473c(c)(2).
Footnote 86. 479.
42 USCS 2473c(f).

Footnote 88. 42 USCS 2473c(d)(1).
Footnote 89. 42 USCS 2473c(d)(2).
Footnote 90. 42 USCS 2473c(e).
Footnote 91. 42 USCS 2473c(h).
Footnote 92. 42 USCS 2473c(g)(1).
Footnote 93. 42 USCS 2473c(g)(2).
(4). Public Employer Substance Abuse Policies [478- 481]
478 Federal government policy on drug testing of federal employees

View Entire Section
A drug abuse policy that includes drug testing of federal government workers has been
issued. 94 Under it, federal employees must not use illegal drugs, and individuals who
use them are not considered suitable for federal employment. 95
The head of each executive agency must develop a plan for achieving a drug-free
workplace after giving due consideration to the rights of the government, the employee,
and the general public. Each plan must include a policy statement, an employee
assistance program, supervisory training in identifying and addressing illegal drug use,
provisions for self-referrals and supervisory referrals to treatment, and a provision for
identifying illegal drug users, including testing. 96
Programs must be established to test for illegal drug use by employees in sensitive
positions and for voluntary employee drug testing. Also, programs may be established to
test for illegal drug use by any employee when a reasonable suspicion exists that illegal
drugs are being used, during an authorized investigation of an accident or unsafe practice,
or to follow- up counseling or rehabilitation for illegal drug use through an employee
assistance program. Furthermore, applicants may be tested for illegal drug use. 97
These drug testing programs must contain procedures for requesting retention of records
and specimens, for retesting, and for protecting the confidentiality of test results and
related medical and rehabilitation records. Procedures for providing specimens must
allow individual privacy, unless the agency has reason to believe that an individual may
alter or substitute the specimen. Sixty days' notice must be given before implementation
of a drug testing program, except where agency drug testing programs are already in
effect. Before a drug test is conducted, an employee must be informed that he may
submit medical documentation which supports a legitimate use for a specific drug. The
results of a drug test may be used in processing any adverse action against an employee
or for other administrative purposes. However, preliminary test results may not be used
unless confirmed by a second analysis. 98
Agencies must refer an employee who is found to use illegal drugs to an employee
assistance program and must discipline such an employee, unless he voluntarily identifies
himself as a user, obtains counseling or rehabilitation, and refrains from using illegal
drugs in the future. Furthermore, agencies must attempt to remove from service any such
employee if he refuses to obtain counseling through an employee assistance program or
does not refrain from using illegal drugs. Finally, employees in a sensitive position may
not remain on duty until they have successfully completed a rehabilitation program
through an employee assistance program, unless as part of a rehabilitation or counseling
program, it would not pose a danger to public health, safety, or the national security. 99
A "sensitive" position is one that an agency head designates special- sensitive,
critical-sensitive, or noncritical-sensitive under the Federal Personnel Manual or sensitive
under Executive Order No. 10450. It also includes an employee who has been or may be
granted access to classified information, individuals serving under presidential
appointments, law enforcement officers, and other positions that involve law
enforcement, national security, the protection of life and property, public health or safety
or other functions requiring a high degree of trust and confidence. 1
Footnotes
Footnote 94. Ex Or 12564 (5 USCS 7301 note).
Footnote 98. Ex Or 12564 4, 5.
Footnote 1. Ex Or 12564 7(d).
479 Federal government agency testing and recordkeeping procedures

View Entire Section
The Department of Health and Human Services (HHS) has issued mandatory guidelines
solely for federal workplace drug testing programs that are implemented under Executive
Order 12564. 2 These guidelines apply to (1) executive agencies as defined in 5 USCS
105; (2) the uniform services as defined in 5 USCS 2101(3), but excluding the Armed
Forces as defined in 5 USCS 2101(2); and (3) any other employing unit or authority of
the federal government, except the U.S. Postal Service, the Postal Rights Commission,
and employing units or authorities in the judicial and legislative branches. 3 Urine
specimens collected under the guidelines are to be used only to test for those drugs
included in agency drug-free workplace plans, and may not be used to conduct any other
analysis or test unless otherwise authorized by law. 4
Observation: Concerns for individual privacy rights, fairness, and accuracy are
apparent throughout the HHS guidelines. Agencies are called upon to take particular
care to protect these rights in collecting specimens and in maintaining employee
records. Private sector employers covered by DOT drug testing regulations must
adhere to a modified version of these procedures. 5 Other private sector employers
considering drug testing programs might also look to these guidelines for their
procedures.
Under the guidelines, an initial test for the presence of drugs must use immunoassay
meeting the Food and Drug Administration's requirements for commercial distribution.
The HHS guidelines prescribe cut-off levels for each drug and levels are subject to
change by HHS as advances in technology or other considerations warrant. 6 An initial
or screening test is an immunoassay screen to eliminate negative urine specimens from
further consideration.
Specimens identified as positive on the initial test must be confirmed using gas
chromatography/mass spectrometry techniques. A confirmatory test is a second analytical
procedure used to identify the presence of a specific drug or metabolite, which is
independent of the initial test and which uses a different technique and chemical principle
from that of the initial test in order to insure reliability and accuracy. At this time gas
chromatography/mass spectrometry is the authorized confirmation method for cocaine,
marijuana, opiates, amphetamines, and phencyclidine. Cut-off levels for confirmatory
test are also prescribed by HHS. 7
HHS also issued guidelines to be used in certifying drug testing laboratories used by
federal agencies with drug testing programs implemented under Executive Order 12564.
8 Agencies are to submit blind tests to laboratories they use in order to ensure quality
control. 9
With respect to on-site procedures, an agency must have one or more designated
collection sites having all the necessary personnel, materials, equipment, facilities, and
supervision to provide the collection, security, temporary storage and shipping or
transportation of urine specimens to specific drug testing laboratories. 10
An agency must also use a standardized chain of custody forms, to be executed by
authorized collection site personnel. The handling and transportation of urine specimens
from one authorized individual or place to another must be accomplished through proper
chain of custody procedures. 11 Chain of custody refers to procedures to account for the
integrity of each urine specimen by tracking its handling and storage from point of
specimen collection to the final disposition of the specimen. A form must be used to
account for the specimen from collection to receipt by the laboratory. Appropriate
laboratory chain of custody forms must account for the sample within the laboratory.
Chain of custody forms must, at a minimum, include an entry documenting the date and
purpose each time a specimen or aliquot is handled or transferred and must identify every
individual in the chain of custody. An aliquot is a portion of the specimen used for
testing. 12
Procedures for collecting urine specimens must sustain individual privacy, unless there is
reason to believe that a particular individual may alter or substitute his specimen. 13
To the extent possible, collection site personnel must keep an individual's specimen
bottle within sight both before and after urination. After the specimen is collected, it is
properly sealed and labeled. An approved chain of custody form must be used for
maintaining control and accountability, and every effort must be made to minimize the
number of persons handling specimens. 14
Agencies must take precautions to ensure that a urine specimen is not adulterated or
diluted during the collection procedure and that the information on the urine bottle and in
the record book can identify the individual from whom the specimen was collected.
Minimum precautions to ensure unadulterated specimens include procedures for
collecting specimens, receipt and handling by the collection site person, checks for
adulteration, and shipment to the laboratory. 15
A positive test result does not automatically identify an employee or applicant as an
illegal drug user. The results are subject to review by a medical review officer prior to
their transmission to agency administrative officials. 16 This medical review officer
must be a licensed physician responsible for receiving laboratory results generated by an
agency's drug testing program, who has the knowledge of substance abuse disorders and
appropriate medical training to interpret and evaluate an individual's positive test result
together with his or her medical history and any other relevant biomedical information.
17 He may be an agency employee or an independent contractor. The medical review
officer must review all medical records made available by the tested individual when a
confirmed positive test could have resulted from legally prescribed medication. If there
is explanation for the positive test result, he must determine that the result is consistent
with legal drug use and take no further action. Prior to making a final decision to verify a
positive test result, the medical review officer must give the tested individual the
opportunity to discuss the test result. Following verification of a positive test result, he
refers the case to the agency Employee Assistance Program and to the management
official authorized to recommend or take administrative action. Based on a review of
inspection reports, quality control, multiple samples, and other pertinent results, the
medical officer may determine that a result is scientifically insufficient for further action
and declare the test specimen negative. He may request reanalysis of the original sample
before making this decision. 18
Agencies must develop a Privacy Act system of records or modify an existing system or
use any applicable government-wide system of records to cover both the agency's and the
laboratory's records of employees' urinalysis results. 19 Those records must be kept
confidential, with access given to employees upon written request. 20 Laboratories that
perform drug tests for employers should also maintain records. 21
Caution: Employers in certain states must keep records according to statutory

requirements. For a discussion of state law on drug testing, see EP18,460.718,460.47E.
Footnotes
Footnote 2. Mandatory Guidelines For Federal Workplace Drug Testing Programs
(Guidelines), Subpart A 1.1(e) 53 Fed. Reg. 11970, 4/11/88.
Footnote 3. Mandatory Guidelines For Federal Workplace Drug Testing Programs,
Subpart A, 1.1(a), 53 Fed. Reg. 11970, 4/11/88.
Subpart A, 2.1(c), 53 Fed. Reg. 11970, 4/11/88.
Footnote 5. For a discussion of the law governing substance abuse testing of
transportation workers, see Employment Coordinator EP- 18,451.50 et seq.
Footnote 6. Mandatory Guidelines For Federal Workplace Drug Testing Programs
(Guidelines), Subpart B, 2.4(e), 53 Fed. Reg. 11970, 4/11/88.
Subpart B, 2.4(f), 53 Fed. Reg. 11970, 4/11/88.
Subpart C, 53 Fed. Reg. 11970, 4/11/88.
Subpart B, 2.5, 53 Fed. Reg. 11970, 4/11/88.
Subpart B, 2.2(a), 53 Fed. Reg. 11970, 4/11/88.
Subpart B, 2.2(c), 53 Fed. Reg. 11970, 4/11/88.
Subpart A, 1.2, 53 Fed. Reg. 11970, 4/11/88.
Subpart B, 2.2(e), 53 Fed. Reg. 11970, 4/11/88.
Subpart B, 2.2(g), 53 Fed. Reg. 11970, 4/11/88.
Subpart B, 2.2(f), 53 Fed. Reg. 11970, 4/11/88.
Subpart B, 2.7, 53 Fed. Reg. 11970, 4/11/88.
Footnote 17. Mandatory Guidelines For Federal Workplace Drug Testing Programs.
Subpart A, 1.2 53 Fed. Reg. 11970, 4/11/88.
Footnote 18. Mandatory Guidelines For Federal Workplace Drug Testing Programs.
Subpart B, 2.7, 53 Fed. Reg. 11970, 4/11/88.
Subpart B, 2.8, 53 Fed. Reg. 11970, 4/11/88.
Subpart B, 2.4, 53 Fed. Reg. 11970, 4/11/88.
480 Records access under federal drug testing programs

View Entire Section
Any federal employee who is the subject of a drug test shall, upon written request, have
access to any records relating to his or her test and any records relating to the results of
any relevant certification, review, or revocation of certification proceedings. In addition,
those records must be kept confidential. 22
Footnotes
Footnote 22. P. L. 100-71, 503; Mandatory Guidelines For Federal Workplace Drug
Testing Programs, Subpart B, 2.9, 53 Fed. Reg. 11986, 4/11/88.
481 When an employee's challenge of drug testing is ripe for resolution

View Entire Section
Employees may have to wait until actual testing has begun before the issue is ripe for
resolution. For instance, a claim disputing the reasonableness of mandatory drug testing
of railway employees was not ready for resolution, since the issue of reasonableness
under the Fourth Amendment requires a balancing of a particular search against the
invasion of specific personal rights. The railroad employer had simply sought to
implement a new drug testing policy, but had not yet done so, unresolved questions still
were left. 23
Observation: Until the employer actually implements its new policy and the
background issues have been resolved, there is no indication as to whether the planned
drug testing procedures would be reasonable or not under the Constitution. What is
clear, however, is that specific facts are necessary regarding a particular search and the
reason that it is justified before the Fourth Amendment balancing test can even be
properly implemented.
Still, if employees would be otherwise denied any remedy, it may be unnecessary to wait
for actual drug testing to begin before a challenge to it may be brought. Thus, a union's
attempt to prevent nationwide urinalysis drug tests of federal employees in "sensitive"
positions was not precluded by the Civil Service Reform Act. Unless permitted to seek
to enjoin the government's testing, federal employees subject to Executive Order 12564
24 would not receive adequate constitutional protection. Employees who test negative
and, therefore, do not suffer any adverse personnel actions would have no basis for ever
challenging a potential disciplinary action. 25
Footnotes
Footnote 23. Railway Labor Executives' Asso. v Long Island R. Co. (1987, ED NY) 651
F Supp 1284, 127 BNA LRRM 2483, 1 BNA IER Cas 1487, 42 CCH EPD 36780.
Footnote 24. 478.
Footnote 25. National Treasury Employees Union v Reagan (1987, ED La) 651 F Supp
1199, 1 BNA IER Cas 1308, 43 CCH EPD 37094.
(5). Fourth Amendment Considerations in Substance Abuse Testing [482-491]
482 Substance abuse tests as implicating Fourth Amendment rights; balancing

the interests involved
View Entire Section
Go to Supplement
The issue of when a particular search or seizure is reasonable, or permissible, under the
Fourth Amendment involves a balancing of interests. The individual's privacy interests
are weighed against the government's promotion of its legitimate interests in the search or
seizure. 26
The initial detention of the person for testing purposes may be a seizure if it interferes
with the subject's freedom of movement in a meaningful way. Maintaining and
examining test results constitutes a search if it infringes on a right of privacy that the
society recognizes as reasonable. For example, the Supreme Court found that an
employer's drug and alcohol testing program constituted a Fourth Amendment search
when it penetrated beneath the skin, required a sample of blood, breath, or urine, or
involved a chemical analysis of a sample obtained under these circumstances. 27
With respect to substance abuse testing programs conducted by the government and
private employers subject to the Fourth Amendment, 28 the reasonableness of a
particular search under the Fourth Amendment primarily depends on whether a "special
need" exists for the testing, 29 how intrusive the test is on an individual's rights of
privacy, 30 and whether there is an individualized suspicion that a particular test subject
has been abusing or is currently abusing prohibited substances. 31
482 ----Substance abuse tests as implicating Fourth Amendment rights; balancing
the interests involved [SUPPLEMENT]
Practice Aids: Employee drug testing: Is it permissible? N.J. Supreme Court leaves
many unanswered questions, 158 NJ Law 1:8 (1994).
The Fourth Amendment in the workplace: are we really being reasonable? 79 Va LR 243
(1993).
Case authorities:
Terminated safety-sensitive employee's claim that suspicionless drug test urinalysis
undertaken by city violated his Fourth Amendment rights would fail on basis that city
had reasonable suspicion to test employee for drug use, where employee self-referred
himself to city's employee health center for evaluation, warned his supervisors he might
become violent if provoked, and engaged in public altercation with his girlfriend while
working. Saavedra v City of Albuquerque (1996, CA10 NM) 73 F3d 1525, 11 BNA IER
Cas 588.
Footnotes
Footnote 26. Delaware v Prouse (1979) 440 US 648, 59 L Ed 2d 660, 99 S Ct 1391;
United States v Martinez-Fuerte (1976) 428 US 543, 49 L Ed 2d 1116, 96 S Ct 3074.
Footnote 28. 469.
Footnote 29. 483-485.
Footnote 30. 486-489.
483 Justifying substance abuse testing on basis of "special need"

View Entire Section
Go to Supplement
In the normal criminal law context in which the Fourth Amendment's balancing of
interests 32 usually occurs, the balance is struck by requiring a warrant to be issued,
based on probable cause of a criminal act, unless "special needs" beyond routine law
enforcement make those requirements impractical. 33
Applying this standard, the Supreme Court has held that the government's interest in
regulating the conduct of railroad employees to ensure safety, through a drug and alcohol
testing program, constituted a "special need" that obviated the necessity of a warrant
based on probable cause. Thus, employees engaged in safety-sensitive tasks could be
subjected to post-accident testing, even absent individualized suspicion 34 of substance
abuse by particular employees involved in the test, since the regulations requiring the
testing limited the intrusiveness 35 of the invasions of individual privacy. The court
stated that railroad employees, like persons who have access to nuclear power facilities,
may greatly endanger human life on a massive scale by virtue of a momentary lapse of
attention due to substance abuse or impairment.
However, the court also stated that the testing program, despite the "special needs"
obviously involved, might be susceptible to challenge as a pretextual excuse for testing if
the employees could make a pervasive showing that it was designed and intended to
function as a conduit for funneling evidence regarding criminal violations to law
enforcement authorities. 36
In a case involving drug testing of U.S. Customs Service employees, the Supreme Court
noted that the fact that the test results were not allowed to be released to law enforcement
or other authorities without the written consent of the test subject indicated that the
testing served other needs beyond those of routine law enforcement. "Special needs"
were also being served in that instance because the government had an important interest
in testing employees who directly engaged in drug interdiction, or employees who carried
firearms. Employees engaged in drug interdiction regularly came into contact with
contraband, carried by a criminal element known to be prone to violence and bribery
attempts. Thus, the national interest in self- protection from the importation of narcotics
would be seriously harmed if those charged with exercising that responsibility were
unsympathetic to that mission because of their own drug use. Furthermore, a "special
need" was independently served in testing employees who carried firearms, since the
public should not bear the risk of drug-impaired individuals being promoted to positions
in which they are allowed to use deadly force. 37
"Special needs" based on safety have also been found as a basis to allow drug testing,
without reasonable individualized suspicion of drug use, of:
civilians employed by the U.S. Army in aviation, law enforcement, and as drug
counsellors and at forensic drug testing laboratories. 38
employees of the Federal Bureau of Prisons in primary law enforcement positions who
on a daily or weekly basis are regularly issued or given access to firearms, or licensed
physicians and dentists who regularly diagnose, treat, or directly supervise diagnosis and
treatment of patients. 39
civilian employees at a U.S. Army chemical weapons plant. 40
a hospital scrub tech who assisted in surgery as part of her duties. 41
bus drivers, as part of a routine return-to-work physical examination. 42

bus drivers, in post-accident situations. 43
bus and truckdrivers, and other motor carriers subject to Department of Transportation
drug-testing regulations. 44
railroad workers in safety-sensitive positions, under Department of Transportation
regulations. 45
jockeys, harness drivers, and other participants in horse races, like starters, who were
not personally in peril but who could cause injury or death to other participants if they
were impaired by drug use. 46
clerical, warehouse, and maintenance employees at a commercial nuclear power plant
who have unescorted access to the plant's protected areas, which include the areas of the
plant surrounded by physical barriers to which access is usually restricted for most
employees. 47
On the other hand, a maintenance custodian had his Fourth Amendment right to be free
of unreasonable searches violated by a return-to-work drug test, since he did not occupy a
safety sensitive position and the state's interest in protecting him, as opposed to members
of the general public, from potential injuries that could result from his impairment was
minimal. 48 "Special needs" were also not demonstrated, so that preliminary or
permanent injunctions were issued to halt:
random testing of Office of Personnel Management investigators of security checks on
federal employees, since there was no evidence that such individuals were susceptible to
bribes, and their access to classified materials was limited. 49
random testing of Navy civilian personnel involved in (1) equipment maintenance other
than transportation operation; (2) areas of national security, unless they have top secret
access clearances; (3) the protection of life and property, except for firefighters; (4) all
positions in facilities dealing with drug or alcohol rehabilitation. 50
post-accident testing based on any injury that requires medical treatment, even absent
hospitalization, or any damage of property involving a loss of one dollar or more. 51
random testing of all correctional officers, based on a general need for integrity of the
workforce. However, correctional officers that came into direct contact with prison
inmates could be tested based on a safety concern about their use of weapons, and a
concern for drug smuggling in the institution. 52
random testing of Department of Health and Human Services drivers who did not
transport passengers or have access to classified information. 53
483 ----Justifying substance abuse testing on basis of "special need"
[SUPPLEMENT]
Case authorities:
Police department did not violate rights of police officer, under Fourth and Fifth
Amendments, by directing him to submit urine sample for mandatory drug testing after
his arrest on suspicion of possessing and distributing cocaine, where order requiring drug
testing whenever there was individualized reasonable suspicion to believe that officer
was unlawfully using drugs served special governmental needs, and where there was no
testimonial compulsion in collection and analysis of urine for illegal drugs. Rawlings v
Police Dep't of Jersey City (1993) 133 NJ 182, 627 A2d 602, 8 BNA IER Cas 1136.
Footnotes
Footnote 32. 482.
Footnote 33. New Jersey v T. L. O (1985) 469 US 325, 83 L Ed 2d 720, 105 S Ct 733.
Footnote 34. 491.
Footnote 35. 486-489.
Footnote 37. National Treasury Employees Union v Von Raab (1989) 489 US 656, 103
L Ed 2d 685, 109 S Ct 1384, 4 BNA IFR Cas 246, 49 CCH EPD P 38792.
Footnote 38. National Federation of Federal Employees v Cheney (1989) 280 US App
DC 164, 884 F2d 603, 4 BNA IER Cas 1164, 1989 CCH OSHD 28657, cert den 493
US 1056, 107 L Ed 2d 948, 110 S Ct 864, 4 BNA IER Cas 1888.
Footnote 39. American Federation of Government Employees, Council 33 v Barr (1992,
ND Cal) 7 BNA IER Cas 823.
Footnote 40. Thomson v Marsh (1989, CA4) 884 F2d 113, 4 BNA IER Cas 1445, 1989
CCH OSHD 28702.
Footnote 41. Kemp v Claiborne County Hosp. (1991, SD Miss) 763 F Supp 1362, 6 BNA
IER Cas 836.
Footnote 42. Moxley v Regional Transit Services (1989, WD NY) 722 F Supp 977.
Footnote 43. Holloman v Greater Cleveland Regional Transit Authority (1991, CA6)
Footnote 44. International Brotherhood of Teamsters, etc. v DOT (1991, CA9) 932 F2d
1292, 6 BNA IER Cas 647, 1991 CCH OSHD 29328, amd (CA9) 6 BNA IER Cas 767
and amd (CA9) 91 CDOS 3591.
Footnote 45. Railway Labor Executives' Assoc. v Skinner (1991, CA9) 934 F2d 1096, 6
BNA IER Cas 833, 1991 CCH OSHD 29383.
LC 56789.
Footnote 47. International Brotherhood of Electrical Workers, Local 1245 v U.S. Nuclear
Regulatory Com. (1992, CA9) 7 BNA IER Cas 890.
Footnote 48. Bolden v Southeastern Pennsylvania Transp. Authority (1991, CA3) 953
F2d 807, 7 BNA IER Cas 92, 139 BNA LRRM 2118, 120 CCH LC 56772, cert den
(US) 119 L Ed 2d 206, 112 S Ct 2281.
Footnote 49. Connelly v Horner (1989, ND Cal) 4 BNA IER Cas 1605.
Footnote 50. American Federation of Government Employees, Local 1533 v Cheney
(1991, ND Cal) 1991 US Dist LEXIS 4410.
Footnote 51. American Federation of Government Employees, Local 1533 v Cheney
(1991, ND Cal) 1991 US Dist LEXIS 4410.
Footnote 52. Taylor v O'Grady (1989, CA7) 888 F2d 1189, 4 BNA IER Cas 1569.
Footnote 53. American Federation of Government Employees, etc. v Sullivan (1992, DC
Dist Col) 787 F Supp 255, 7 BNA IER Cas 353, 1992 CCH OSHD 29631.
484 Effect of substance abuse tests that do not establish current impairment on
"special need" for testing
View Entire Section
Since a substance abuse test conducted under governmental authority is more likely to be
found a reasonable search or seizure under the Fourth Amendment's balancing of
interests 54 if the government has a "special need" for the testing, 55 the question has
arisen as to whether a substance abuse test that cannot conclusively establish substance
impairment on the job, but only indicates substance use on some prior occasion,
effectively furthers the "special need" to be served by the testing.
The Supreme Court has found that a substance abuse test that cannot conclusively
establish current substance impairment of an employee in a safety-sensitive position after
an accident still serves the "special need" of transportation safety by indicating the
presence of prohibited substances in the employee's blood or urine. Such results provide
the important basis for further investigative work. For instance, the known pattern of
elimination of a drug from an employee's bloodstream, coupled with information from
other sources concerning the employee's activities, may allow an informed conclusion to
be reached as to how a particular accident occurred. Furthermore, the test results also
serve the special safety need by deterring the use of such substances by employees in
safety-sensitive positions, regardless of what conclusions may be drawn with respect to
current impairment or its relationship to an accident. 56 For instance, urinalysis of
Labor Department employees holding public safety and security-sensitive positions based
on a reasonable suspicion of off-duty drug use or impairment did not violate the Fourth
Amendment. Reasonable suspicion drug testing under these circumstances promotes

special governmental needs beyond the normal need for law enforcement. The need to
preserve public health, safety, and national security justifies conducting urinalysis when a
reasonable suspicion is based on actual observation of an employee's off-duty illegal drug
use or impairment. 57
However, urinalysis that fails to establish the current impairment of an employee for
whom the government has no "special need" to test based on safety, security, or drug
interdiction grounds, is unconstitutional under the Fourth Amendment, since the
government may only search employees when there is a clear nexus between the
employee's duties and the nature of the feared violation. Thus, the mandatory random
testing 58 of such employees was not permitted, while employees reasonably suspected
of drug use or impairment on-the-job 59 could be tested, and any positive test results
could be used as a basis for further investigation as to whether on-duty misconduct
occurred. 60
Footnotes
Footnote 54. 482.
Footnote 55. 483.
Footnote 56. Skinner v Railway Labor Executives' Asso. (1989) 489 US 602, 103 L Ed
2d 639, 109 S Ct 1402, 49 CCH EPD 38791, 130 BNA LRRM 2847, 13 BNA OSHC
2065.
Footnote 57. American Federation of Government Employees, AFL-CIO, Local 2391 v
Martin (1992, CA9) 1992 US App LEXIS 15218.
Footnote 58. 491.
Footnote 59. 490.
Footnote 60. National Treasury Employees Union v Yeutter (1990) 287 US App DC 28,
918 F2d 968, 5 BNA IER Cas 1605, 1990 CCH OSHD 29143.
485 Effect of abstention due to advanced notice of testing on "special need" for
testing
View Entire Section
Advanced notice of impending substance abuse testing is an element of evaluating the
intrusiveness of a testing program weighing in favor of minimizing the privacy intrustion
61 and, therefore, making the test more likely to be permissible under the Fourth
Amendment's balancing of interests test. 62 However, the question has arisen as to
whether such advanced notice will run counter to the government's "special need" for
such testing, because test subjects may subvert the process by refraining from drug use
until the tests have been completed.
In a case involving the mandatory drug testing of U.S. Customs Service employees for
particular jobs, the Supreme Court concluded that the government's "special need" was
not undermined by advance notice. The court found that the amount of time drugs may
be detectable in urine samples may vary depending on the individual, and drug use may
be detected as far back as 22 days in some cases. Furthermore, potential test subjects may
be unaware of the "fade-away" effect of certain drugs, and addicted individuals may be
unable to refrain from taking drugs during the advanced notice period. 63
Footnotes
Footnote 61. 486-489.
Footnote 62. 482.
For a discussion of how advanced notice of drug testing to employees and applicants can
lessen the intrusion of privacy interests protected by the Fourth Amendment, see 488.
486 Evaluating the intrusive nature of a substance abuse test

View Entire Section
In a case where the government had a "special need" 64 for substance abuse testing, the
Supreme Court found that the most important aspect of evaluating the intrusive nature of
the test concerned the tested employees' expectations of privacy. The railroad workers
subject to post-accident alcohol and drug testing had a greatly reduced expectation of
privacy by virtue of their participation in an industry pervasively regulated for the
purpose of ensuring safety, with the success of the regulatory goal dependent in large part
on the health and fitness of the employees in question. 65
Likewise, in another "special needs" situation, unlike most private employees and unlike
government workers in general, U.S. Customs Service employees who carried firearms,
or who were directly involved in drug interdiction efforts, had a diminished expectation
of privacy since the successful performance of their jobs depended uniquely on their
fitness, judgment, dexterity, and ethical behavior. 66
Applying this reasoning, participants in the horse racing industry who conceded that they
could be subjected to full medical examinations prior to each race were lawfully required
to submit to less intrusive random drug tests five times per year when the testing was
conducted in the relative privacy of a toilet stall, as opposed to being conducted under
direct observation. 67 Furthermore, federal regulations requiring pre-employment drug
testing of applicants for crewmember positions aboard maritime vessels were not so
overly intrusive of privacy interests to warrant stopping their implementation, since
crewmembers were already subject to pervasive drug screening initiated by private
employers. 68 Likewise, there was no significant additional intrusion on the privacy
interests of motor carriers subjected to random testing under federal regulations, since
they were already required to not only undergo extensive medical examinations that
included urinalysis for other reasons, but were also involved in a heavily regulated
industry that diminished their privacy expectations. 69
Even before the Skinner 70 and Von Raab 71 decisions, courts had similarly
evaluated intrusiveness in drug testing situations, based in large part on the employee's
expectations of privacy. For example, police officers were found to have a reduced
expectation of privacy because they were in one of the most highly regulated forms of
employment under state law, 72 and because they were generally organized in a
paramilitary fashion. 73
However, merely because an industry is heavily regulated, it does not automatically
follow that the employees will have a reduced expectation of privacy concerning
substance abuse testing. Such tests are no less intrusive if the government's interest in
testing bears little or no relationship to the purposes served by the regulations. For
instance, drug-testing imposed on probationary teachers, absent individualized suspicion
of drug use, is an unreasonable search under the Fourth Amendment. The teaching
profession is not a type of employment heavily scrutinized by the government.
Therefore, individuals in that occupation have no reduced expectations of privacy by
virtue of their employment. 74
Footnotes
Footnote 64. 483.
2065.
LC 56789.
Footnote 68. Transportation Institute v U.S. Coast Guard (1989, DC Dist Col) 1989 CCH
OSHD 28627.
Footnote 69. International Brotherhood of Teamsters, etc. v DOT (1991, CA9) 932 F2d
1292, 6 BNA IER Cas 647, 1991 CCH OSHD 29328, amd (CA9) 6 BNA IER Cas 767
and amd (CA9) 91 CDOS 3591.
2065.
Footnote 72. Policeman's Benev. Asso., Local 318 v Washington (1988, CA3) 850 F2d
133, 3 BNA IER Cas 699, 46 CCH EPD 38064, cert den (US) 4 BNA IER Cas 352.
Footnote 73. Caruso v Ward (1988) 72 NY2d 432, 534 NYS2d 142, 530 NE2d 850, 3
BNA IER Cas 1537.
Footnote 74. Re Patchogue- Medford Congress of Teachers v Board of Education (1986,
NY Sup App Ct) 1 BNA IER Cas 1315.
487 Types of testing procedures as affecting intrusiveness of a substance abuse

test
View Entire Section
Under the balancing test applicable to all Fourth Amendment search and seizure issues,
75 it is clear that the less intrusive the search is, the more likely it will be found to be
reasonable and, therefore, in conformity with constitutional standards.
For example, in a case where the government had a "special need" for testing, 76
regulations that required the post-accident drug and alcohol testing of specified railroad
employees were upheld where they standardized the nature of the tests, vested minimal
discretion in the administering authorities with respect to which employees would be
tested, and imposed sanctions and penalties for either abusing the permitted discretion or
otherwise failing to follow the regulations. Therefore, they satisfied the same concerns
served by a warrant in criminal cases by protecting against overly intrusive searches. 77
In another "special needs" situation, guidelines requiring employees seeking particular
positions in the U.S. Customs Service to submit to drug testing made such tests
mandatory, which prevented the sort of arbitrary intrusiveness forbidden under the Fourth
Amendment. 78
Not only general procedures used in determining who and when to test, but also the
specific environment and manner in which tests are conducted affect the evaluation of
how intrusive the tests are. For instance, the Supreme Court found that blood and breath
tests, conducted in a reasonable and safe manner, involve no undue risks, pain, or
embarrassment. While there are high expectations of privacy involved in the personal act
of passing urine, and a correspondingly intrusive aspect in substance abuse testing that
concerns the visual or aural monitoring of the activity, regulations that will reduce the
intrusion by not requiring the direct observation of a monitor, and will provide for the
collection of samples in a medical environment by personnel unrelated to the employer,
similar to a routine physical examination procedure, sufficiently address the Fourth
Amendment's privacy protections in a situation where the government has a "special
need" for testing. 79
The sensitive nature of urinalysis testing and the manner in which it was conducted had a
part to play in finding such testing to constitute an unreasonable search under the Fourth
Amendment. For example, requiring visual observation while government employees
urinated for purposes of "reasonable suspicion" drug testing 80 was an excessive
intrusion on their privacy rights under the Fourth Amendment. The concern for accuracy
of test results could be protected by the less intrusive means of coloring toilet bowl water,
collecting outer garments prior to the testing, and listening for the sounds of urination. 81
In addition, a drug testing program for police cadet recruits violated the Fourth
Amendment even though the employer demonstrated a "special need" for testing, where
recruits were forced to urinate in groups, were singled out and forced to urinate under
direct observation or face immediate termination, and were subjected to offensive and
flippant remarks about urination. 82
However, the mere fact that probationary police officers attending the police training
academy were required to be observed during the process of urination while undergoing a
random drug test did not, by itself, make the test overly intrusive for purposes of the
Fourth Amendment's reasonable search requirements. The procedural minimization of
intrusiveness is only a secondary factor in evaluating the constitutionality of drug testing
under Skinner and Von Raab, once a "special need" for testing has been demonstrated. 83
Also, a pre-employment drug test in which the urine sample is collected in a private
room, behind a closed door, and outside of the view or hearing of the collection monitor
unless, there is a reason to suspect tampering, is not offensive to the test subject's dignity,
but conforms to common medical procedures utilized in physical examinations of athletic
teams, college students, the military, and life insurance applicants. 84
Although any limitation on an employee's freedom of movement for the purpose of
obtaining blood, breath, or urine samples must be considered in assessing the
intrusiveness of the search, employees usually consent to significant restrictions in their
movements by virtue of the working situation. Accordingly, any additional interference
in their movement caused by submitting to testing does not further impinge on privacy
interests in any serious manner. 85
Footnotes
Footnote 75. 482.
Footnote 76. 483.
2065.
2065.
Footnote 80. 490.

Footnote 81. National Treasury Employees Union v Yeutter (1990) 287 US App DC 28,
918 F2d 968, 5 BNA IER Cas 1605, 1990 CCH OSHD 29143.
Footnote 82. Feliciano v Cleveland (1991, ND Ohio) 1991 US Dist LEXIS 19798.
Footnote 83. Strawder v Chicago (1989, ND Ill) 1989 US Dist LEXIS 12541.
Footnote 84. Willner v Thornburgh (1991) 289 US App DC 93, 928 F2d 1185, 6 BNA
IER Cas 498, 118 CCH LC 10635, 1991 CCH OSHD 29280, cert den (1991, US)
116 L Ed 2d 760, 112 S Ct 669, 6 BNA IER Cas 1696.
2065.
488 Advanced notice of testing as affecting intrusiveness of a substance abuse test

View Entire Section
Under the Fourth Amendment's balancing test, 86 a substance abuse test may be found
less intrusive on an individual's privacy if advanced notice of the testing requirement is
provided. Thus, in a case where the government had a "special need" 87 for drug and
alcohol testing of railroad workers in safety-sensitive positions after an accident had
occurred, the Supreme Court found the search involved to be reasonable, in part because
the applicable regulations defined the scope and limits of such testing in advance. 88
Likewise, another "special needs" situation concerned a regulatory requirement that made
testing of U.S. Customs Service employees for particular jobs an obligation that lessened
the intrusive nature of the examination. 89
Other courts have found that the advanced notice provided by drug testing done in the
context of routinely scheduled physical examinations when an employee returns to work
also lessened the intrusive impact of the testing, therefore, contributed to making such
searches reasonable under the Fourth Amendment for bus drivers. 90
Furthermore, in a case also arising prior to these Supreme Court decisions, a court found
that the random nature of a drug testing program involving employees of the Federal
Bureau of Prisons, which provided only a two-hour advanced notice of testing,
contributed to making the test too intrusive, and consequently unreasonable under the
Fourth Amendment. 91
Observation: Skinner and Von Raab did not directly address the intrusiveness of
purely random testing without advanced notice. While it is likely that such testing will
be found more intrusive, the validity of such tests under the Fourth Amendment will
undoubtedly depend on how strong the government's "special needs" for substance
abuse testing are, if any, and whether the other aspects of evaluating the privacy
intrusion weigh in favor of determining that the test is a reasonable search.
Footnotes
Footnote 86. 482.
Footnote 87. 483.
2065.
Footnote 90. Moxley v Regional Transit Services (1989, WD NY) 722 F Supp 977.
Footnote 91. American Federation of Government Employees, Council 33 v Meese
(1988, ND Cal) 688 F Supp 547, 3 BNA IER Cas 929, reaffd on motion for
reconsideration (ND Cal) 1989 US Dist LEXIS 10792.
489 Confidentiality and use of test results as affecting intrusiveness of a substance

abuse test
View Entire Section
The Fourth Amendment's ban on unreasonable searches, under the balancing of interests
standard, 92 is less likely to bar an employer's substance abuse test if the privacy
invasion is lessened by protecting the confidentiality of test results and by restricting the
use of those results in other contexts. For instance, when the government had a "special
need" 93 for alcohol and drug testing of railroad workers, the privacy intrusion was
lessened by the fact that the regulations restricted the nonprohibited substances which
could be revealed in the test, and provided for the confidentiality of information obtained
with regard to those substances. 94
Likewise, in another "special needs" circumstance, a drug test was found to be a
reasonable search, in part, due to the regulatory prohibition against analysis of test results
for any but the specifically prohibited substances. Such a restriction curbed the intrusive
nature of the testing process itself. 95
Similarly, the fact that a federal employer's drug testing policy under Executive Order
12456 96 tested only for illegal drugs, and not for substances that were legal but also
impaired performance, did not indicate that the agency's true goal was law enforcement
rather than public safety. The policy itself prevented nonconsensual disclosure of test
results to police authorities, and the mandatory random testing was limited to only
employees in sensitive positions from the standpoint of security, health, and safety. 97
In a case decided prior to these Supreme Court decisions, drug testing was found to be an
unreasonable search when firefighters who tested positively for drug usage were formally
charged with criminal misconduct. In the court's view, the employer had a higher burden
of reasonableness to meet in justifying the drug test. Fourth Amendment searches
involving potential criminal law investigations were, by nature, more intrusive. Thus,
using the results of the drug test in this fashion contributed to making the testing
unconstitutional. 98
Observation: Not only can use of drug tests for purposes of criminal prosecution
make a search more intrusive in invading individual privacy, but routine criminal usage
of results may also cast doubt on the government's "special need" 99 for testing in the
particular circumstances. Therefore, criminal law use of test results may detract from
the reasonableness of testing on both sides of the Fourth Amendment's balancing of
interests standard. 1
Footnotes
Footnote 92. 482.
Footnote 93. 483.
2065.
Footnote 96. 478.
Footnote 97. American Federation of Government Employees v Skinner (1989) 280 US
App DC 262, 885 F2d 884, 4 BNA IER Cas 1153, 1989 CCH OSHD 28659, cert den
495 US 923, 109 L Ed 2d 321, 110 S Ct 1960, 5 BNA IER Cas 480.
Footnote 98. Capua v Plainfield (1986, DC NJ) 643 F Supp 1057, 1 BNA IER Cas 625,
41 CCH EPD 36538.
Footnote 99. 483.
Footnote 1. 482.
490 Existence of individualized suspicion as justifying substance abuse testing

View Entire Section
Go to Supplement
While individualized suspicion of drug use is not required to justify an employer's
substance abuse testing as reasonable under the Fourth Amendment's balancing of
interests standard 2 in some situations, it must, when required, safeguard against
arbitrariness by limiting the discretion exercised to determine when testing will be done.
3
For example, justification for reasonable suspicion drug testing of federal employees did
not have to reach the probable cause standard for a criminal proceeding. The
documented suspicions of supervisory personnel and the procedural requirement of
management confirmation adequately prevented an abusive use of such testing and a
corresponding unconstitutional invasion of the employees' privacy interests. 4 In
addition, the Ninth Circuit has held that drug testing of Labor Department employees in
public health, safety, and national security-sensitive positions based on reasonable
suspicion of off-duty drug use is permissible under the Fourth Amendment, since the
government has a "special need" in preventing these employees from using unlawful
drugs on or off duty. Intrusion on the employees' privacy is minimized by requiring
objective evidence consisting of credible eyewitness observations of unlawful drug use or
impairment, and by vesting only minimal discretion in the officials charged with
implementing the testing program. 5 On the other hand, another court found testing of
government employees based on "reasonable suspicion" met Fourth Amendment
requirements only where it concerned on-duty drug use or drug-related job impairment,
and if supported by the personal observations of a supervisory or management official
who could articulate the basis of the suspicion. Observations had to be made by officials
who had experience and training in the evaluation of drug-induced impairment, and
hearsay information concerning suspicions of drug use had to be corroborated by such
officials. 6 Likewise, bus drivers who were suspected of substance abuse were lawfully
subjected to a drug test where two supervisory employees had to concur in the necessity
for testing. 7
Not only the employer's personnel, but other sources may also provide the "reasonable
suspicion" necessary to validate a test under the Fourth Amendment. For instance, a
fireman was lawfully tested based on information provided by a drug dealing informer, 8
and police officers were validly drug tested based on information initially received in the
form of various reliable citizen complaints concerning suspicious activity by the officers,
which was later corroborated by an internal investigation with respect to their drug use. 9
However, when an employee's girlfriend supplied an employer with information
concerning his drug use, and the employer's subsequent investigation of that information
concluded that there was no evidence of drug use, requiring the police officer to submit
to urinalysis testing was not, at that point, based on reasonable suspicion. 10
490 ----Existence of individualized suspicion as justifying substance abuse testing
[SUPPLEMENT]
Case authorities:
Terminated safety-sensitive employee's claim that suspicionless drug test urinalysis
undertaken by city violated his Fourth Amendment rights would fail on basis that city
had reasonable suspicion to test employee for drug use, where employee self-referred
himself to city's employee health center for evaluation, warned his supervisors he might
become violent if provoked, and engaged in public altercation with his girlfriend while
working. Saavedra v City of Albuquerque (1996, CA10 NM) 73 F3d 1525, 11 BNA IER
Cas 588.
Footnotes
Footnote 2. 482.
Footnote 3. 487.
Footnote 4. Connelly v Horner (1989, ND Cal) 4 BNA IER Cas 1605.
Footnote 5. American Federation of Government Employees, AFL-CIO, Local 2391 v
Martin (1992, CA9) 1992 US App LEXIS 15218.
Footnote 6. Bangert v Hodel (1989, DC Dist Col) 705 F Supp 643, 4 BNA IER Cas 12.
Footnote 7. Amalgamated Transit Union v Suscy (1976, CA7) 538 F2d 1264, cert den
429 US 1029, 50 L Ed 2d 632, 97 S Ct 653.
Footnote 8. Everett v Napper (1987, CA11) 833 F2d 1507, 2 BNA IER Cas 1377, 45
CCH EPD 37596.
Footnote 9. Fraternal Order of Police, Lodge No. 5 v Tucker (1989, CA3) 868 F2d 74, 4
BNA IER Cas 168.
Footnote 10. Wrightsell v Chicago (1988, ND Ill) 678 F Supp 727, 2 BNA IER Cas 1619.
491 When a substance abuse test is permissible absent individualized suspicion of

drug use
View Entire Section
Go to Supplement
Normally, some quantum of individualized suspicion of criminal activity is required
before a search is conducted in accordance with the reasonableness requirement 11 of
the Fourth Amendment. However, even in criminal cases, where the privacy interests
involved are minimal, and the intrusion on those interests serve an important
governmental interest, a constitutionally valid search may be conducted in the absence of
such suspicion. 12
Therefore, a railroad employer, pursuant to government regulations, could impose
postaccident drug and alcohol testing of employees without a reasonable suspicion of use
by all required test subjects when there is a "special need" for the test, 13 the
intrusiveness 14 of the invasion of privacy involved is minimal, and there is a potential
for safety violations resulting from substance abuse to occur prior to the time any signs of
impairment are detectable by supervisors or others. Furthermore, the agency's history
and experience in attempting to deal with the safety concerns by less intrusive means
prior to issuing the regulations, aptly demonstrated its inability to accurately gauge
reasonable suspicion of substance abuse by particular employees in the chaotic aftermath
of an accident. Also, the uncertain timing of such incidents undoubtedly had an increased
deterrent effect on the use of prohibited substances by employees in safety-sensitive
positions, who could not escape testing. 15
However, postaccident drug testing of any federal employee "involved" in an accident
was overly intrusive of the right to privacy for individuals who could not possibly have
been the cause of the accident, such as bystanders or persons injured by the actions of
others. 16
Given a minimal privacy intrusion and a "special need" for government testing, even
when there was no documented pattern or problem of substance abuse among current
employees, a U.S. Customs Service Program of mandatory testing of employees seeking
jobs involving drug interdiction, or jobs involving the carrying of firearms, was permitted
to deter the use of drugs by employees in those positions. The mere fact that all but a few
of those being tested were innocent of any wrongdoing did not, by itself, impugn the
validity of the testing program. 17
491 ----When a substance abuse test is permissible absent individualized suspicion
of drug use [SUPPLEMENT]
Case authorities:
Enforcement of random drug testing policy is enjoined as to secretary, where secretary
objected to classification of her job as "safety sensitive," secretary's duties were mainly
clerical, but she sometimes used her own car to do county business, supervisor never
suspected secretary of drug use, secretary refused to submit to drug test, and county
suspended secretary without pay, because driving is incidental to secretary's duties, and
therefore her job cannot be classed as safety sensitive; since job is not safety sensitive,
secretary's privacy interest outweighs county's interest in drug testing. Bannister v Board
of County Comm'rs (1993, DC Kan) 829 F Supp 1249, 8 BNA IER Cas 1361.
Deputy sheriff raised factual questions requiring trial in constitutional attack on drug
testing of deputy, where deputy reported departmental corruption, department transferred
deputy to narcotics squad, informant accused deputy of smoking marijuana, department
ordered drug testing of narcotics squad, accusation against deputy was "catalyst" for
testing order, deputy's test was positive, and department fired deputy, because testing was
not random, department did not have specific policies governing testing, and reliability of
informant was not clearly enough established to provide probable cause for testing. Pike
v Gallagher (1993, DC NM) 829 F Supp 1254.
Footnotes
Footnote 11. 482.
Footnote 12. United States v Martinez-Fuerte (1976) 428 US 543, 49 L Ed 2d 1116, 96
S Ct 3074.
Footnote 13. 483.
Footnote 14. 486-489.
2065.
Footnote 16. Plane v U.S. (1990, WD Mich) 750 F Supp 1358, 5 BNA IER Cas 1582.
L Ed 2d 685, 109 S Ct 1384, 4 BNA IFR Cas 246, 49 CCH EPD 38792.
(6). Other Constitutional Restraints On Substance Abuse Testing [492-495]
492 Fifth Amendment self-incrimination considerations with respect to public

employer' drug testing programs
View Entire Section
Go to Supplement
The Fifth Amendment protects individuals from self-incrimination. However, this
protection is usually limited to instances leading to criminal sanctions involving
involuntary testimony against oneself. Thus, because testing may not lead to either
testimony or criminal sanctions, challenges of public employers' drug testing programs
based on this Fifth Amendment protection have not proven highly successful. For
instance, under Supreme Court precedent, 18 a challenge under the Fifth Amendment
failed because mandatory chemical analysis of bodily fluids, such as urine, is not
evidence of a testimonial or communicative nature and, therefore, cannot infringe on the
Fifth Amendment right against self-incrimination. 19 Furthermore, requiring
test-takers to itemize all medications that they took within the last 30 days did not violate
their rights against self-incrimination, since using prescribed medication is not a criminal
offense. 20
492 ----Fifth Amendment self-incrimination considerations with respect to public
employers' drug testing programs [SUPPLEMENT]

Case authorities:
Footnotes
Footnote 18. Schmerber v California (1966) 384 US 757, 16 L Ed 2d 908, 86 S Ct
1826.
Footnote 19. National Treasury Employees Union v Von Raab (1987, CA5) 816 F2d 170,
2 BNA IER Cas 15, 43 CCH EPD 37096, stay den (US) 96 L Ed 2d 372, 107 S Ct
2479, 2 BNA IER Cas 192, 43 CCH EPD 37097, affd and remanded in part on other
grounds (US) 1989 US LEXIS 1570; Rushton v Nebraska Public Power Dist. (1987, DC
Neb) 653 F Supp 1510, 2 BNA IER Cas 25, 43 CCH EPD 37066, affd (CA8) 844 F2d
Footnote 20. Rushton v Nebraska Public Power Dist. (1987, DC Neb) 653 F Supp 1510,
2 BNA IER Cas 25, 43 CCH EPD 37066, affd (CA8) 844 F2d 562, 3 BNA IER Cas
257, 46 CCH EPD 37918.
493 Fifth and Fourteenth Amendments due process concerns with respect to
public employer' drug testing programs
View Entire Section
Go to Supplement
Even though drug tests may be reasonable, the programs must also be procedurally
safeguarded to protect public employees' Fifth and Fourteenth Amendments due process
rights. For instance, the U.S. Customs Services' drug testing program for employees
seeking a transfer to sensitive positions was sufficiently reliable to meet the Fifth
Amendment's due process requirements. 21 Similarly, state employees' Fourteenth
Amendment substantive due process claims failed because the evidence did not establish
that the testing procedures used were so susceptible to error that the employees were
subjected to a real risk of false-positive readings, particularly where confirmatory tests
were accurate and reliable. Also, the employees' procedural due process claims were
rejected because the Employee Assistance Program (EAP) was voluntary. Thus, the
contention of individuals who tested positive that they would be compelled to participate
in the EAP without due process of law was without merit. 22
A probationary public employee terminated because of a positive drug test does not have
a property interest in continued employment. However, if stigmatized by the discharge,
the claimant may raise a due process liberty interest to clear his good name, honor, and
reputation. 23 Thus, the fact that an employee's refusal to take a urine test was included
in her personnel file that could be disclosed to third parties, raised an issue involving her
potential deprivation of liberty interests without due process. 24
493 ----Fifth and Fourteenth Amendments due process concerns with respect to
public employer' drug testing programs [SUPPLEMENT]
Footnotes
Footnote 21. National Treasury Employees Union v Von Raab (1987, CA5) 816 F2d 170,
2 BNA IER Cas 15, 43 CCH EPD 37096, stay den (US) 96 L Ed 2d 372, 107 S Ct
2479, 2 BNA IER Cas 192, 43 CCH EPD 37097, affd and remanded, in part, on other
grounds (1989, US) 1989 US LEXIS 1570.
257, 46 CCH EPD 37918.
Footnote 23. Metz v New York (1989, SD NY) 1989 US Dist LEXIS 13060.
Footnote 24. Watson v Sexton (1991, SD NY) 755 F Supp 583.
494 Other constitutional concerns regarding public employer' drug testing

programs
View Entire Section
Go to Supplement
Challenges to public employers' drug testing programs under constitutional provisions
other than the Fourth, Fifth, and Fourteenth Amendments have not proven successful.
For instance, public employees' First Amendment objections that calling alcoholism an
illness is synonymous with calling it a disease rather than a sin, thus contradicting the
Bible and burdening the employees' religious beliefs, was rejected. Where the state had a
compelling interest in the safe operation of a nuclear power plant facility, the programs
were valid despite their indirect burden on certain employees' religious observances.
Mandatory participation in the drug program was the "least restrictive alternative" that
still advanced the state's compelling interest, and accommodation of the plaintiffs'
religious exercise would have unduly interfered with its fulfillment. Furthermore, in the
same case, the Ninth Amendment's right to privacy was not violated, since each
employee's act of urination during drug testing would not be witnessed and they failed to
demonstrate that medical information contained in the urine sample had been or would
likely ever be disclosed to law enforcement officials. 25
494 ----Other constitutional concerns regarding public employers' drug testing
programs [SUPPLEMENT]
Case authorities:
Discharged transit authority workers' 1983 equal protection challenge to drug-testing
program which cost them their jobs must fail, although one witness testified that 95
percent of disciplinary proceedings involved blacks, because she did not testify that this
was disproportionate compared with demographics of transit authority generally or
safety-sensitive employees in particular, and no evidence showed intent to treat or actual
treatment of white employees different from blacks. Laverpool v New York City Transit
Auth. (1993, ED NY) 835 F Supp 1440, 4 ADD 353.
Footnotes
257, 46 CCH EPD 37918.
495 State constitutional restrictions on drug and alcohol testing

View Entire Section
Go to Supplement
A state constitution may restrict an employer's right to conduct drug and alcohol testing.
For example, the California Constitution's right to privacy applies to the conduct of
private and public employers. However, a private employer's pre-employment alcohol
and drug testing of applicants did not violate their right to privacy, because providing
urine samples for substance abuse testing did not unreasonably burden an applicant's
privacy interests. Applicants expect to voluntarily disclose some personal information to
prospective employers, and the testing procedures minimized the intrusiveness of the
privacy invasion. Specifically, applicants were informed of the testing policy before
submitting a sample as part of a routine pre-employment physical examination, they were
not watched when producing the sample, and the test results were kept confidential by
the lab and only indicated pass or fail. The employer's reliance on the tests to identify
substance abusers was reasonable under the circumstances although there were some
questions as to the tests' reliability. 26
In the context of substance abuse testing for public employees, however, the
requirements for permissible testing under state constitutional guarantee may exceed
those of the U.S. Constitution. For example, a police department's unannounced,

warrantless, suspicionless, random urinalysis testing procedure for officers was an
unreasonable search and seizure under the Massachusetts Constitution. To justify such
intrusive testing, the government must make a strong factual showing of a substantial
public need for imposing this procedure on all police officers. Instead, it asserted a
generalized interest in preventing a drug problem from spreading to the police force.
This generalized interest may be sufficient to sustain substance abuse testing under the
Fourth Amendment without probable cause or a search warrant, but it can never
substitute for probable cause and a search warrant under the state's constitution. 27
Observation: The generalized interest that Guiney finds is an unacceptable basis for
justifying random urinalysis of police officers under the Massachusetts Constitution
appears to be the same as the "special needs" justification that the U.S. Supreme Court
has found is valid for dispensing with the warrant requirement under the Fourth
Amendment. 28
Since a public employer may institute mandatory substance abuse testing only when the
need to protect public safety outweighs the employee's privacy interest, testing programs
have violated a state constitution's privacy guarantee when:
the program covered all employees, including those not in safety- sensitive positions,
based on the government's general interest in workplace safety. 29
the program tested only applicants, but not employees, since there is no justification for
testing one group but not the other when the nature of the employment is said to pose a
sufficient risk to public safety to warrant testing. 30
Observation: O'Keefe rejects the D.C. Circuit's holding in Willner 31 that the
government may test applicants without individualized suspicion under the Fourth
Amendment although it cannot do so after the applicants are hired.
495 ----State constitutional restrictions on drug and alcohol testing
[SUPPLEMENT]
Footnotes
Footnote 26. Wilkerson v Times Mirror Corp. (1989, 1st Dist.) 264 Cal Rptr 194, 4 BNA
IER Cas 1579.
Footnote 27. Guiney v Police Commissioner of Boston (1991, Mass) 411 Mass 328, 6
BNA IER Cas 1633.
Footnote 28. 483.
Footnote 29. Casados v Denver (1992, Colo App) 832 P2d 1048, 7 BNA IER Cas 265,
cert gr (Colo) 1992 Colo LEXIS 542.
Footnote 30. O'Keefe v Passaic Valley Water Com. (1992) 253 NJ Super 569, 602 A2d
760, 7 BNA IER Cas 354, 122 CCH LC 57036.
Footnote 31. 491.
g. Appearance and Grooming [496-505]
496 Generally; racial and ethnic characteristics

View Entire Section
Go to Supplement
Employers' requirements involving the appearance and grooming of applicants and
employees have often been attacked under federal and state 32 race and sex
discrimination prohibitions. An employer that refuses employment to an applicant
because of the individual's physical appearance violates Title VII if that appearance is
typical of certain minorities. For example, it was unlawful for an employer to reject a job
applicant because of the individual's Latin appearance, 33 or because of a black
applicant's broadly shaped nose and lips. 34
496 ----Generally; racial and ethnic characteristics [SUPPLEMENT]
Practice Aids: Employment discrimination based on appearance, 45 Lab LJ 9:592
(1994).
25 Am Jur Proof of Facts 3d 415, Employment Handicap Based on Gender Dysphoria
(Transexualism).
Footnotes
Footnote 32.
State Aspects For discussion of state fair employment practice statutes addressing
matters of employee appearance and grooming, see Employment Coordinator
EP-18,471 et seq.
Footnote 33. EEOC Decision, Case No. AL 68-1-155E (1969) 1 BNA FEP Cas 921,
CCH EEOC Dec 6008.
6065.
Practice References 33 Am Jur POF2d 71, Employer's Discriminatory Appearance
Code.
497 Weight restrictions

View Entire Section
Go to Supplement
Weight restrictions imposed by employers usually involve different standards for men
and women, and are often based on the employer's perception of customer preference for
physical attractiveness. When this is the case, the employer may, depending on the
circumstances, violate Title VII. Some individuals who have been rejected as overweight
for a position or employment have also argued that this is discrimination because of a
handicap (obesity). 35
Although maximum weight limitations are used by other employers, they are most often
imposed by airlines, which require that flight attendants not exceed a maximum weight
proportionate to height and body size, based on standard height/weight charts. An
applicant who fails to meet the weight limits is rejected for employment, or if hired, is
often disciplined or discharged for consistently exceeding the limit. 36 In some cases,
courts have held that weight control programs are similar to grooming codes, and thus
beyond the purview of Title VII. Under Title VII, the difference in treatment between the
sexes does not constitute illegal discrimination unless it is founded on a fundamental
right or an immutable characteristic. 37 Other courts disagree, holding that an employer's
cosmetic weight regulations are per se discriminatory if they are applicable to female
employees in a different measure than they are to men, 38 or when they are applied to
female but not male employees. 39
However, where an airline's weight restriction was applied only to women, one court
invalidated the standard as sex discrimination on the basis of customer preference
unrelated to ability to perform the job. The employer's desire to compete by featuring
attractive female flight attendants did not justify requiring women to comply with strict
weight requirements as a condition of employment. 40
Weight requirements in the context of employer health and physical fitness requirements
are discussed elsewhere. 41
497 ----Weight restrictions [SUPPLEMENT]
Practice Aids: Protecting overweight workers against discrimination: Is disability or
appearance the real issue? 20 Emp Rel LJ 1:133 (1994).
Expanding liability for employment discrimination: Obesity as a handicap, 36 For the
Defense 4:14 (1994).
Cassista v. Community Foods, Inc. [Cal (1993)]: Drawing the line at obesity? 24 Golden
Gate LR 523 (1994).

It's not over until the morbidly obese woman works, 20 J Corp L 2:389 (1996).
Weight discrimination and hostile work environment: Analysis and implications, 46 Lab
LJ 8:486 (1995).
Should employers be allowed to weigh obesity in their employment decisions? 44 U Kan
LR 1:199 (1995).
(Transexualism).
Footnotes
Footnote 35. Practice References: 36 Am Jur POF2d 249, Discrimination Against the
Obese.
Law Reviews: Employment Discrimination Against Overweight Individuals: Should
Obesity be a Protected Classification? 30 Santa Clara L Rev 951 (1990).
McEvoy, Fat Chance: Employment Discrimination Against the Overweight. 43 Lab L
J 3 (1992).
As to disability on the basis of handicap or disability, generally, see 173 et seq.
Footnote 36. Cox v Delta Air Lines (1976, SD Fla) 14 BNA FEP Cas 1767, 14 CCH EPD
7600, affd without op (CA5) 553 F2d 99, 15 BNA FEP Cas 1369, 14 CCH EPD 7601,
Equal Employment Com. v Delta Air Lines, Inc. (1980, SD Tex) 24 CCH EPD 31455.
Footnote 37. Jarrell v Eastern Air Lines, Inc. (1977, DC Va) 430 F Supp 884, 14 BNA
CCH EPD 8373.
Footnote 38. McArthur v Southern Airways, Inc. (1975, DC Ga) 404 F Supp 508, 11
CCH EPD 10769, vacated on other grounds (CA5) 556 F2d 298, 15 BNA FEP Cas
1123, 14 CCH EPD 7743, 23 FR Serv 2d 1083.
Annotation: Employer's height or weight requirement as unlawful employment
practice violative of Title VII of Civil Rights Act of 1964 (42 USCS 20003 et seq.),
29 ALR Fed 792.
Law Reviews: Mapes-Riordan, Sex Discrimination and Employer Weight and
Appearance Standards. 16 Empl Rel L J 493 (1991).
1534.
498 Pregnancy as a weight-related restriction

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An employer cannot refuse to hire a pregnant woman because of the employer's
preference or the preferences of coworkers, clients, or customers for an employee's
slender appearance. 42
498 ----Pregnancy as a weight-related restriction [SUPPLEMENT]
Practice Aids: 25 Am Jur Proof of Facts 3d 415, Employment Handicap Based on
Gender Dysphoria (Transexualism).
Footnotes
Footnote 42. 29 CFR Part 1604, Appx, Questions and Answers on the Pregnancy
Discrimination Act, Q. 12.
For a full discussion of nonpregnant condition as a job requirement in the context of
health requirements, see 450.
499 EEOC processing of weight charges

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The EEOC's Compliance Manual defines the types of weight requirements the
Commission believes are illegal. The regulations also detail the approach the EEOC will
take in response to charges filed based on maximum weight limitations. 43 A charge
alleging sex discrimination on the basis that women are more often overweight than men,
and thus are disproportionately disciplined for noncompliance with weight restrictions,
will be accepted by the EEOC and assigned a charge number, and issued a notice of right
to sue to protect the charging party's appellate rights. However, the EEOC will then
close the file, taking care to dismiss the charge in such a manner as to preserve the
charging party's appeal rights, but without further investigation. Such a charge involving
an allegation that women as a class are overweight more often than men involves weight
as a mutable characteristic, insofar as it is changeable and controllable within limits and
not peculiar to women. Courts have held that mutable characteristics not peculiar to any
protected group are not entitled to protection under Title VII.
On the other hand, charges alleging a disproportionate exclusion of members of a
protected group because that particular group weighs more based on traits that are not
changeable or controllable and are peculiar to the group will be accepted and analyzed
for adverse impact. 44
The EEOC will also analyze charges based on maximum weight limitations in terms of
disparate treatment. Women flight attendants who are being treated differently by a
nonuniform application of a maximum weight requirement insofar as they are
disciplined, while similarly situated males are not, may claim disparate treatment. Other
circumstances under which the question of disparate treatment would arise occur when an
employer has established different requirements for men than women, for example, the
establishment of a maximum weight policy that applies only to some public contact
classifications filled primarily by women, but not applying to other public contact jobs
that are predominantly male. 45
499 ----EEOC processing of weight charges [SUPPLEMENT]
Footnotes
Footnote 44. EEOC Compliance Manual 621.5(a).
Footnote 45. EEOC Compliance Manual 621.5(c).
500 Hair rules as sex discrimination

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An employer's policy that restricts the hair length of men but not women violates Title
VII. Such regulations constitute illegal sex discrimination against men. 46
Accordingly, an employer violated Title VII by prohibiting male, but not female,
cargo-loaders from having hair longer than shoulder length, where the male hair-length
policy has no relationship to cargo-loading. 47 Another violation occurred when an
employer refused a male applicant production work solely because of his shoulder-length
hair, while employing women with long hair as clericals, where there was no evidence
that long hair presented safety or efficiency problems that could not be solved by using
hairnets. 48
Although some courts have supported the EEOC's position that grooming codes requiring
different hair styles for men and women constitute unlawful sex discrimination, 49 other
courts have held otherwise. Thus, different grooming regulations for men and women
may be legal if they have no significant effect on the employment opportunities of either
sex. 50
An employer may restrict the hair styles of all employees without violating Title VII. In
one such case, an airline rule prohibiting employees of both sexes in certain jobs from
wearing a "corn-row" hairstyle did not discriminate on the basis of sex. The court held
that even if the policy imposed different standards on men and women, it did not regulate
on the basis of an immutable characteristic, and had only a negligible effect on
employment opportunity. 51
An employer's need to set standards to avoid safety hazards has also been recognized by
the courts and the EEOC. As a consequence, an employer may require that hair be worn
in such a way as not to constitute a safety hazard. For example, to implement such a
requirement, an employer may require the wearing of hair nets by employees, but may
not require short hair. 52
Recommendation: Employers are not required to set forth hair policies in writing.
However, because employees tend to view unwritten rules as unfair, putting hair
policies in writing is a simple means of promoting good employee relations. In
addition, written rules help to prevent expensive lawsuits by letting employees know
what is expected and the consequences of failing to comply. For the same reasons,
employers are advised to put all personal appearance rules in writing.
500 ----Hair rules as sex discrimination [SUPPLEMENT]
Footnotes
Annotation: Employer's enforcement of dress or grooming policy as unlawful
employment practice under 703(a) of Civil Rights Act of 1964 (42 USCS 2000e2(a)), 27 ALR Fed 274.
Dec 6256.
Footnote 48. EEOC Decision No. 71- 1529 (1971) 3 BNA FEP Cas 952, CCH EEOC
Dec 6231.
Footnote 49. Roberts v General Mills, Inc. (1971, DC Ohio) 337 F Supp 1055, 3 BNA
FEP Cas 1080, 4 CCH EPD 7681; Donohue v Shoe Corp. of America (1972, DC Cal)
Footnote 50. Longo v Carlisle De Coppet & Co. (1976, CA2) 537 F2d 685, 12 BNA FEP
Cas 1668, 12 CCH EPD 11018; Farwood v Continental Southeastern Lines, Inc. (1976,
Footnote 51. Rogers v American Airlines, Inc. (1981, SD NY) 527 F Supp 229, 27 BNA
6318.
501 Hair rules as race or national origin discrimination

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The EEOC and the courts disagree on whether the imposition of hair codes constitutes
racial discrimination. The EEOC maintains that imposing hair codes on employees that
require conformance to white Anglo hair styles is unlawful race or national origin
discrimination. Thus, the EEOC has held as discriminatory a hair code prohibiting bush
hair styles and long mustaches, alleging that Afro hair styles are more prevalent among
blacks, while goatees and long mustaches are more prevalent among minority males. 53
The courts have not endorsed the EEOC's position. Hair codes have been upheld that
prohibit all facial hair, sideburns below the earlobe, and hair below the collar; 54
handlebar mustaches; 55 and "corn-row" hairstyles in certain jobs. 56
Observation: Where an employer's policy is applied equally to members of all races,

and plaintiffs in an employment discrimination action fail to allege that the prohibited
hair style is used exclusively by members of one race, the prohibition is not likely to be
found in violation of Title VII.
501 ----Hair rules as race or national origin discrimination [SUPPLEMENT]
Footnotes
6343.

Footnote 54. Thomas v Firestone Tire & Rubber Co. (1975, DC Tex) 392 F Supp 373, 10
Footnote 55. Smith v Delta Air Lines, Inc. (1973, CA5) 486 F2d 512, 6 BNA FEP Cas
1099, 6 CCH EPD 8865, 18 FR Serv 2d 467.
Footnote 56. Rogers v American Airlines, Inc. (1981, SD NY) 527 F Supp 229, 27 BNA
502 No-beard rules as sex discrimination

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The EEOC has held that the dismissal of male employees for refusing to remove beards
and mustaches violates Title VII. The EEOC reasons that prohibiting such facial hair
unlawfully discriminates against males because such hair is found exclusively among
males. 57 However, one court has disagreed with the EEOC's position, and held that
the dismissal of male employees based on the refusal to remove facial hair is not
sex-based discrimination. 58
502 ----No-beard rules as sex discrimination [SUPPLEMENT]
Practice Aids: Suits for the hirsute: Defending against America's undeclared war on
beards in the workplace? 63 Fordham LR 4:1203 (1995).
(Transexualism).
Footnotes
6364.
Footnote 58. Rafford v Randle Eastern Ambulance Service, Inc. (1972, DC Fla) 348 F
503 No-beard rules as race discrimination

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The EEOC has held that an employer's no-beard rule as applied to a black man unable to
shave because of a skin disorder known as pseudofolliculitis barbae (PFB) and specific to
black men, violated Title VII. 59 The courts are divided, however, on the issue of the
legality of a no-beard policy as applied to blacks because of their susceptibility to PFB.
For example, despite its discriminatory impact on blacks, a grocery store's no-beard rule
was held justified by business necessity because of the fact that overall store hygiene and
the appearance of cleanliness constituted important aspects of customer preference. 60
Also approved was a bus company's no-beard policy, when the plaintiff failed to
demonstrate the absence of similar skin conditions affecting white men. 61
On the other hand, a no-beard policy was unlawful where, because of the skin disorder, it
effectively excluded 25% of the black male workforce from the employer's job market.
The court did not consider relevant the fact that the employer's workforce reflected a
higher percentage of blacks than the overall population percentage in the area. 62
Similarly, an employer's no-beard rule violated Title VII because of the unlawful
disparate impact:
on a black man who suffered from PFB, or "shaving bumps," and who was fired for not
shaving, since between 45% and 83% of all black males who shave would be excluded
from employment by the rule, compared with less than 1% of white men; 63
on a black police officer with folliculitis, even though he was the only police officer
who claimed harm, since black police officers in Memphis were relatively new, and there
was no way to determine how many blacks had failed to apply or left the department
because of folliculitis; 64
on black men, since approximately 25% of them are excluded from employment under
that policy because they suffer from PFB to the extent that they are unable to shave.
However, since about half of the black males with PFB are able to shave, and the plaintiff
did not suffer from PFB to the extent that he could not shave, the policy had no effect on
him individually. 65
Observation: The latter position would appear to be the better reasoned of the
decisions, in light of the Supreme Court's decision in Connecticut v Teal, 66 which
disallowed the "immunizing effect" of a nondiscriminatory "bottom line" on selection
procedures that disproportionately exclude blacks. Accordingly, the continued validity
of the Third Circuit's holding in EEOC v Greyhound Lines 67 is questionable.
Where an employee claimed the right to wear a beard based simply on his racial identity,
an employer's nondiscriminatory policy forbidding beards was upheld. 68
Recommendation: It should be clear from the no-beard cases discussed in this

section, as well as the cases considered in the other personal appearance sections, that
personal appearance rules are frequent sources of trouble for the employer. As a result,
the employer should develop such rules only after carefully considering whether there
is a need for them in the employer's organization. If there is no need, the rules should
not be adopted. Where the rules are necessary, they should be limited to the
employer's specific requirements.
503 ----No-beard rules as race discrimination [SUPPLEMENT]
Practice Aids: Dismissal for wearing trousers was discriminatory, 492 Indust Rel L
Bull 16 (1994).
(Transexualism).
Footnotes
6838.
Footnote 60. Woods v Safeway Stores, Inc. (1976, DC Va) 420 F Supp 35, 13 BNA FEP
EPD 8494, cert den 440 US 930, 59 L Ed 2d 486, 99 S Ct 1267, 19 BNA FEP Cas 69,
18 CCH EPD 8916.
Footnote 61. Equal Employment Opportunity Com. v Greyhound Lines, Inc. (1980, CA3)
Footnote 62. EEOC v Trailways, Inc. (1981, DC Colo) 530 F Supp 54, 27 BNA FEP Cas
801, 28 CCH EPD 32445.
Footnote 63. Richardson v Quick Trip Corp. (1984, SD Iowa) 591 F Supp 1151, 35 BNA
FEP Cas 1116, 36 CCH EPD 34932.
Footnote 64. Johnson v Memphis Police Dept. (1989, WD Tenn) 713 F Supp 244, 50
Footnote 65. Bradley v Pizzaco of Nebraska, Inc. (1991, CA8) 926 F2d 714, 55 BNA
FEP Cas 347, 55 CCH EPD 40565, amd (CA8) 939 F2d 610, 56 CCH EPD 40867,
cert den (US) 117 L Ed 2d 105, 112 S Ct 933, 57 CCH EPD 41203.
Footnote 66. 347.
Footnote 67. Equal Employment Opportunity Com. v Greyhound Lines, Inc. (1980, CA3)
Footnote 68. Wofford v Safeway Stores, Inc. (1978, ND Cal) 78 FRD 460, 18 BNA FEP
Cas 1645.
504 Dress codes as sex discrimination

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The imposition of a dress code by an employer may constitute illegal sex discrimination,
although the courts are in conflict regarding the issue. One line of decisions indicates
that, absent business necessity, the imposition of a dress code on one sex violated Title
VII where only women were:
forbidden to wear slacks on the job; 69
forbidden to wear glasses; 70
required to wear sexually provocative uniforms; 71
required to wear smocks 72 or other uniforms provided by the employer that were
treated as income. 73
Similarly, an employer's requirement that all female employees
wear makeup and lipstick, unilaterally instituted within days of the plaintiff's notification
that she was pregnant because the employee was less attractive when pregnant, violated
Title VII. 74
However, if particular dress regulations are reasonably related to business needs and
justified by accepted social norms, they are not unlawful even if they differ for men and
women. Thus, where differing treatment is unjustified by business necessity, and
nondiscriminatory alternatives for achieving the same purpose are available to the
employer, discriminatory dress regulations will be in violation of Title VII. 75
In other cases, differing dress codes for men and women have been held permissible.
Thus, it was not an unlawful employment practice to require male, but not female, store
employees to wear ties. 76 Similarly, an employer's prohibition on pantsuits for female
employees in its executive office but not in its general office was not sex discrimination.
77 Furthermore, an employer's rule prohibiting male employees from wearing earrings
was upheld. 78
An employer also may impose different standards of appearance on female and male
employees if the standards are reasonable and enforced for both sexes. 79
For instance, termination of a female juvenile center employee for not heeding warnings
regarding wearing her hair down and too much makeup was not discriminatory, although
the grooming code in question was unwritten and nebulous. Where the chief hearing
referee as well as several other key employees were women, no hardship or adverse
effect on employment opportunities for women because of the policy were shown. The
grooming requirements were reasonably related to the employer's business needs of
presenting a conservative, professional image and had been applied evenly among men
and women. 80
Recommendation: It is possible to reconcile the dress code cases on the basis of

their differing facts. However, since many courts have phrased their decisions in terms
of conflicting general rules, an employer without judicial guidance on the subject may
be confused as to how legally to project a desirable public image through the
appearance of its employees. Since even the courts that have invalidated dress codes
seem reluctant to consider whether a particular regulation is consistent with commonly
accepted social norms, employers should define carefully the dress appropriate to their
operations and adopt codes that apply to all classes of affected employees.
504 ----Dress codes as sex discrimination [SUPPLEMENT]
Practice Aids: Stereotyping dress codes in tatters; New California statute says that
businesses may not keep women from wearing trousers to work, 17 National LJ 20:C6
(1995).
(Transexualism).
Footnotes
6373.
Footnote 71. EEOC v Sage Realty Corp. (1980, SD NY) 87 FRD 365, 22 BNA FEP Cas
1660, 23 CCH EPD 31046, 31 FR Serv 2d 563.
Footnote 72. O'Donnell v Burlington Coat Factory Warehouse, Inc. (1987, SD Ohio) 656
F Supp 263, 43 BNA FEP Cas 150, 43 CCH EPD 37151.
Footnote 73. Carroll v Talman Federal Sav. & Loan Asso. (1979, CA7) 604 F2d 1028, 20
Footnote 74. Tamimi v Howard Johnson Co. (1987, CA11) 807 F2d 1550, 42 BNA FEP
Cas 1289, 42 CCH EPD 36769.
Footnote 75. Carroll v Talman Federal Sav. & Loan Asso. (1979, CA7) 604 F2d 1028, 20
Footnote 76. Fountain v Safeway Stores, Inc. (1977, CA9) 555 F2d 753, 15 BNA FEP
Cas 96, 95 BNA LRRM 3106, 14 CCH EPD 7664, 81 CCH LC 13299.
Footnote 77. Lanigan v Bartlett & Co. Grain (1979, WD Mo) 466 F Supp 1388, 19 BNA
FEP Cas 1039, 20 CCH EPD 30006.
Footnote 78. Capaldo v Pan American Federal Credit Union (1987, ED NY) 43 CCH
EPD 37016.
Footnote 79. Craft v Metromedia, Inc. (1983, WD Mo) 572 F Supp 868, 33 BNA FEP
CCH EPD 35335, 27 BNA WH Cas 353, cert den 475 US 1058, 89 L Ed 2d 592, 106
Footnote 80. Wislocki-Goin v Mears (1987, CA7) 831 F2d 1374, 45 BNA FEP Cas 216,
505 Dress and grooming codes as religious discrimination

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The EEOC has held that an employer's dress code can constitute religious discrimination
if unjustified by business necessity. Thus it was unlawful to terminate a Black Muslim for
wearing high necked dresses substantially covering her legs and arms, although the
employer permitted other employees to wear unusual or attention-getting clothing. 81
It was also unlawful for an employer to require a registered nurse to wear a cap
representative of her school in violation of a religious tenet that her head remain
completely covered at all times. 82
Similarly, an employer could not lawfully prevent a Muslim security guard from wearing
an Islamic pin, since the purpose of this regulation was to avoid public confusion of
private security guards with the local police and the Islamic pin bore no resemblance
whatsoever to the local police badge. 83
In contrast, Title VII's exemption (42 USCS 2000e-1) for religious entities employing
individuals to carry on the entity's activities 84 permitted a retirement home operated by
a church to prohibit its receptionist from wearing a head covering required by her Muslim
religion. The nursing home sought to provide a Christian environment for its residents,
and could require that its employees' actions, attitudes, and appearance fit in with the
environment. The exception applies even when the job in question is not sectarian or
ecclesiastical in nature. 85
A reasonable accommodation of an employee's religious-based dress and grooming needs

was not required when:
the proposed accommodation of allowing women to wear skirts in a manufacturing
plant would threaten a reasonable safety practice by increasing safety hazards; 86
an attempt to accommodate a teacher's religious commitment to wearing Muslim
clothing would expose school administrators to a risk of criminal prosecution, fines, and
expulsion from their profession for violating a state law that prohibits teachers from
wearing religious clothing. 87
However, a reasonable accommodation of an employee's religiously based dress and
grooming requirements was required when a head covering worn by a teacher for
religious reasons was found not to be religious clothing for purposes of that law, because
it was not perceived as such and did not indicate the wearer's religious affiliation. 88
A restaurant's no-beard policy was justified against a charge of religious discrimination
by a member of the Sikh religion, who claimed he was forbidden by his religion to shave
his facial hair, on the grounds that a clean-shaven face is a BFOQ in family restaurants.
89
505 ----Dress and grooming codes as religious discrimination [SUPPLEMENT]
Footnotes
6283.
6180.
Footnote 83. Karriem v Oliver T. Carr Co. (1985, DC Dist Col) 38 BNA FEP Cas 882.
Footnote 85. EEOC v Presbyterian Ministries, Inc. (1992, WD Wash) 788 F Supp 1154,
59 BNA FEP Cas 579.
Footnote 86. EEOC v Heil-Quaker Corp. (1990, MD Tenn) 53 CCH EPD 39754.
Footnote 87. U.S. v Board of Educ. for School Dist. (1990, CA3) 911 F2d 882, 53 BNA
FEP Cas 1077, 54 CCH EPD 40144.
Footnote 88. EEOC v Reads, Inc. (1991, ED Pa) 759 F Supp 1150, 58 BNA FEP Cas 49,
56 CCH EPD 40759.
The concepts of "reasonable accommodation" and "undue hardship" in the context of
religious discrimination under Title VII are fully discussed at 141 et seq.
Footnote 89. EEOC v Sambo's of Georgia, Inc. (1981, ND Ga) 530 F Supp 86, 27 BNA
FEP Cas 1210, 27 CCH EPD 32342.
See 269 et seq. for a full discussion of bona fide occupational qualifications.
h. Marital Status [506-512]
506 Generally; no-marriage rules

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Job requirements establishing a preference or condition relating to the marital status of an
applicant or employee must be evenly applied and must not have an adverse effect on a
racial or sexual group protected by federal job discrimination laws. 90 Although Title
VII does not expressly prohibit job discrimination based on marital status, the EEOC and
the courts have recognized the sex discrimination statutory prohibition of such a
"sex-plus" job requirement if it is imposed on one sex and not the other. 91
In a
no-marriage case, the Seventh Circuit said that the Act condemns policies that are applied
to classes of employees based on their sex. 92
Thus, employment rules that forbid or
restrict the employment of married women, but do not apply to married men, have been
held to violate Title VII. 93
According to the EEOC, it is not relevant that such a
rule is not directed against all women but just against married women. 94 If an
employer discriminates against married women, but not against married men, the variable
is sex and the discrimination is therefore invidious and unlawful. 95
Similarly, under Executive Order 11246 Sex Discrimination Guidelines, any distinction
between married and unmarried persons of one sex that is not made between married and
unmarried persons of the opposite sex is considered an impermissible distinction made on
the basis of sex. 96
However, the Fifth Circuit has ruled twice that an airline's policy of forbidding the
employment of married women as flight attendants, but excluding men altogether from
this job, did not discriminate against married women on the basis of gender in violation
of Title VII. 97
The court acknowledged that unmarried women were favored over
married women, but held that because men were not favored over women, the
discrimination was based on marriage and not sex. The fact that the no-marriage rule
was applied only to the stewardess job classification did not deflect the court from its
conclusion. The Fifth Circuit rejected the Seventh Circuit's statement that application of
a no-marriage rule to a single sex job category would not automatically validate a
no-marriage rule. The Fifth Circuit, instead, emphasized that a sex discrimination charge
must contain some allegation of dissimilarity in treatment between the sexes. 98 Thus,
the fact that an airline discriminated against men by barring them from flight attendant
jobs eliminated the possibility of establishing sex discrimination against married women
in the all-female stewardess jobs. The EEOC's claim that the airline would not have
imposed the no-marriage rule on male flight attendants was rejected as mere speculation.
99
However, the EEOC has rejected the argument that any conditions of employment that
relate to a single-sex job category cannot amount to sex discrimination because they do
not disadvantage employees of the opposite sex. It is enough that a no-marriage policy is
applied to a class of employees because of their sex rather than because of the demands
of the work. 1
Observation: While the major airlines have abandoned sex-segregated stewardess

job classifications, the disagreement in authority concerning the validity of nomarriage rules as applied to sex-segregated job classifications persists. The EEOC's
position seems to represent the more convincing statutory interpretation, since the Fifth
Circuit's position turns on a separate violation of the Act, the exclusion of men from
flight attendant jobs.
Observation: While the cases all deal with rules restricting the employment
opportunities of married women, the same principles would apply to rules that would
restrict the employment opportunities of married men.
Recommendation: Because a preference for unmarried employees is lawful under

Title VII if it is applied to female and male applicants or employees equally, employers
that find such a policy necessary should take care that it applies to both sexes
evenhandedly.
Footnotes
Footnote 90.
State Aspects As to state fair employment statutes addressing discrimination on the
basis of marital status, see Employment Coordinator EP-18,495 et seq.
Footnote 91. McArthur v Southern Airways, Inc. (1975, ND Ga) 404 F Supp 508, 11
CCH EPD 10769, vacated on other grounds (CA5) 556 F2d 298, 15 BNA FEP Cas
1123, 14 CCH EPD 7743, 23 FR Serv 2d 1083, op withdrawn (CA5) 569 F2d 276, 17
BNA FEP Cas 12, 16 CCH EPD 8296, 29 CFR 1604.4(a).
Annotation: Distinctions based on marital status as constituting sex discrimination
under 703(a) of Civil Rights Act of 1964 (42 USCS 2000e-2(a)), 34 ALR Fed
648.
Footnote 92. Sprogis v United Air Lines, Inc. (1971, CA7) 444 F2d 1194, 3 BNA FEP
Cas 621, 3 CCH EPD 8239, 15 FR Serv 2d 291, cert den 404 US 991, 30 L Ed 2d 543,
Footnote 93. Third CircuitJurinko v Edwin L. Wiegand Co. (1973, CA3 Pa) 477 F2d
8843, 17 FR Serv 2d 234, vacated on other grounds 414 US 970, 38 L Ed 2d 214, 94 S
Ct 293, 6 BNA FEP Cas 795, 6 CCH EPD 8884, on remand (CA3) 7 BNA FEP Cas
784, 7 CCH EPD 9215.
Fifth CircuitLansdale v Air Line Pilots Asso. International (1970, CA5) 430 F2d 1341,
Seventh CircuitSprogis v United Air Lines, Inc. (1971, CA7 Ill) 444 F2d 1194, 3 BNA
FEP Cas 621, 3 CCH EPD 8239, cert den 404 US 991, 30 L Ed 2d 543, 92 S Ct 536,
Ninth CircuitInda v United Air Lines, Inc. (1975, DC Cal) 405 F Supp 426, 13 BNA
FEP Cas 1229, 11 CCH EPD 10933, affd in part and vacated in part on other grounds
(CA9) 565 F2d 554, 16 BNA FEP Cas 251, 15 CCH EPD 7956, 24 FR Serv 2d 1129,
EPD 8278.
Footnote 95. Jurinko v Edwin L. Wiegand Co. (1971, DC Pa) 331 F Supp 1184, 3 BNA
FEP Cas 944, 4 CCH EPD 7516, affd in part and mod in part on other grounds (CA3)
477 F2d 1038, 5 BNA FEP Cas 925, 6 BNA FEP Cas 292, 5 CCH EPD 8567, 6 CCH
EPD 8843, 17 FR Serv 2d 234, vacated on other grounds 414 US 970, 38 L Ed 2d 214,
Footnote 96. 41 CFR 60-20.3(d).
Footnote 97. Stroud v Delta Air Lines, Inc. (1977, CA5) 544 F2d 892, 14 BNA FEP Cas
206, 13 CCH EPD 11302, reh den (CA5) 548 F2d 356 and cert den 434 US 844, 54 L
Ed 2d 110, 98 S Ct 146, 15 BNA FEP Cas 1184, 15 CCH EPD 7856; EEOC v Delta
Air Lines, Inc. (1978, CA5) 578 F2d 115, 18 BNA FEP Cas 35, 17 CCH EPD 8559.
Footnote 98. Stroud v Delta Airlines, Inc. (1977, CA5) 544 F2d 892, 14 BNA FEP Cas
206, 13 CCH EPD 11302.
Footnote 99. EEOC v Delta Air Lines, Inc. (1978, CA5) 578 F2d 115, 18 BNA FEP Cas
35, 17 CCH EPD 8559.
Footnote 1. EEOC Decision, Case No. 6-6-5759 (1968) CCH EEOC Dec 6002.
507 No-marriage rules as BFOQs

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A requirement that employees be unmarried that applies only to women might be
justified as a BFOQ in terms of the peculiar requirements of the particular job, but not on
the basis of a general principle, such as the desirability of spreading work. 2 In
addition, a job requirement specifying unmarried status would be valid if it reflected an
inherent quality reasonably necessary for satisfactory job performance. 3
However,
the EEOC has rejected the argument that it would be lawful to apply a no-marriage rule
to both male and female flight attendants, because such a restriction would be unrelated
to the flight attendants' job performance. 4 The fact that an airline was led to impose a
no-marriage policy because of complaints it received from husbands of flight attendants
about their wives' working schedules was insufficient to justify the policy as a BFOQ,
because the complaints did not have a significant relation to satisfactory job performance.
5
Footnotes
Footnote 3. Sprogis v United Air Lines, Inc. (1971, CA7) 444 F2d 1194, 3 BNA FEP Cas
621, 3 CCH EPD 8239, 15 FR Serv 2d 291, cert den 404 US 991, 30 L Ed 2d 543, 92
Footnote 5. See EEOC Decision, Case No. YSF 9-060 (1969) CCH EEOC Dec 6011.
508 Rules restricting employment based on spouse's national origin or race

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According to the EEOC's national origin guidelines, it is a violation of Title VII to deny
employment opportunities because of marriage to persons of a particular national origin
group, or because a spouse's name is associated with a national origin group. 6
Similarly, a federal district court recognized a sex discrimination cause of action under
Title VII where an employer discharged a black female after discovering that her husband
was white. The employer improperly assumed that a black woman who was married to a
white man did not need the job. 7 However, a white man who was married to a black
woman failed to prove that he was not hired as an insurance salesman because of his
interracial marriage where his real purpose for interviewing for the job was merely to act
interested so as to create the basis for a Title VII claim. 8
Furthermore, a white person is protected by 42 USCS 1981 from job discrimination
motivated by his marriage to a black. 9
Footnotes
Footnote 7. Vuyanich v Republic Nat. Bank (1976, DC Tex) 409 F Supp 1083, 13 BNA
Footnote 8. Parr v Woodmen of World Life Ins. Soc. (1987, MD Ga) 657 F Supp 1022,
Footnote 9. Faraca v Clements (1975, CA5) 506 F2d 956, 10 BNA FEP Cas 725, 9 CCH
1177; Clark v Louisa County School Board (1979, ED Va) 472 F Supp 321, 19 BNA FEP
Cas 1549, 21 CCH EPD 30404.
509 Rules restricting employment based on spouse's employment by competitor

View Entire Section
It is a legitimate business practice to guard business confidentiality and protect a
competitive position by evenhandedly disqualifying from jobs male and female
applicants or employees who are married to employees of a competitor. An employer
that discharged an employee who was married to an employee of an active competitor did
not violate Title VII. The court pointed out that the policy was applied to men and
women equally, and noted that the employer's business was highly competitive and that
gaining inside information would constitute a competitive advantage. 10
Footnotes
Footnote 10. Emory v Georgia Hospital Service Asso. (1971, DC Ga) 4 CCH EPD
7785, 4 BNA FEP Cas 891, affd (CA5) 446 F2d 897, 4 BNA FEP Cas 921, 4 CCH EPD
7786.
510 No-spouse rules

View Entire Section
Go to Supplement
Employment policies against hiring or continuing the employment of spouses of
employees are lawful under Title VII, as long as they are applied equally to male and
female employees. An airline's policy of discharging the spouse with the least seniority
if the married workers cannot decide between themselves who should leave did not
violate the sex discrimination provisions of Title VII under either a discriminatory
treatment or a disparate impact theory. 11 Similarly, a school board's decision to
transfer the wife of a male department head to a new school under its policy of not
employing spouses in the same school did not violate Title VII, where the couple agreed
to let the school board pick who would transfer and the choice was based on the best
interests of the educational program. 12 No-spouse rules have been upheld where they
prohibited:
a husband and wife from working in the same department, with the couple having the
choice of who should resign, and if the couple could not agree as to who should resign,
then the junior in seniority would have to step down; 13
a woman in the employer's Washington office from transferring to its New York office
after she married a man who worked in the New York office, where the company offered
a number of times to help her obtain other employment in New York and she did not
pursue those possibilities; 14
spouses from working in a supervisor-subordinate relationship; 15
a university from hiring a female applicant as a chemistry professor, where her husband
was already a member of the university's chemistry department and the applicant's
research expertise was essentially identical to her husband's. 16
Some no-spouse rules are subject to the claim that they adversely affect employment
opportunities for women more than men. Even so, a neutral no- spouse policy did not
violate Title VII, even though it disqualifies many more women than men, because (1)
the marital relationship often generates intense emotions that could hamper job
performance, (2) married persons who work together could be expected to take each
other's side in a dispute with the employer or a fellow worker, which could hurt the
chances of resolving the dispute, (3) problems could arise if spouses worked together and
one were to be promoted to a supervisory position, and (4) such a policy prevents one
partner from using his or her position to secure a job for the other at the expense of more
highly qualified applicants. 17
However, workers' morale did not justify implementing a facially neutral no-spouse
policy where the claimed dissatisfaction did not establish a business necessity for the
rule. The employer had a history of discrimination against women, resulting in its
employees being overwhelmingly male. Thus, the rule had a disparate impact on women.
The rule was directed at problems that allegedly had occurred when married couples
worked together: dual absenteeism, vacation scheduling, supervision, and employee
pressure to hire spouses. During the relevant periods, however, the facts did not support
the business necessity of the rule. It was not sufficient that the rule be merely
business-related. It had to be essential to safety and efficiency. In other words, there
must have been no other available nondiscriminatory alternative to accomplish the
legitimate business purpose. 18 Also, a neutral no-spouse policy also violated Title VII
where it had the effect of denying employment to a disproportionate number of female
applicants (as where the employer's workforce was predominantly male). 19
Observation: Despite the adverse impact of the no-spouse rule on female applicants,
the Seventh Circuit agreed with the rule's premise that it was a "bad idea" to have
partners in a marriage work together outside the home, and found a business necessity
justifying the rule. The Eighth Circuit and the EEOC, on the other hand, refused to
excuse the discriminatory effects of such a rule on the grounds of business necessity.
An employer's rule against the hiring of employees' spouses has been held not to violate
the early federal Civil Rights Acts even though it applied to persons who were not
married but lived together with all the attendant responsibilities and commitments of
marriage. 20
State aspects: Under various state statutes prohibiting employment discrimination on

the basis of "marital status," employer no-spouse rules have been both upheld and
struck down. 21
510 ----No-spouse rules [SUPPLEMENT]
Practice Aids: Invasion of privacy or protection against sexual harassment:
co-employee dating and employer liability, 26 Colum J L & SP 435 (1993).
Footnotes
Footnote 11. Harper v Trans World Airlines, Inc. (1974, ED Mo) 385 F Supp 1001, 9
1074, 10 CCH EPD 10498.
Footnote 12. Meier v Evansville-Vanderburgh School Corp. (1975, DC Ind) 416 F Supp
748, 16 BNA FEP Cas 1713, 13 CCH EPD 11358, affd without op (CA7) 539 F2d 713.
6103.
Footnote 14. Tuck v McGraw-Hill, Inc. (1976, DC NY) 421 F Supp 39, 13 BNA FEP
Cas 778, 13 CCH EPD 11367.
Footnote 15. Smith v Mutual Ben. Life Ins. Co. (1976, DC NJ) 13 BNA FEP Cas 252, 11
CCH EPD 10876.
Footnote 16. Sime v Trustees of State University (1974, DC Cal) 11 BNA FEP Cas 334,
Footnote 17. Yuhas v Libbey-Owens-Ford Co. (1977, CA7) 562 F2d 496, 16 BNA FEP
Footnote 18. EEOC v Rath Packing Co. (1986, CA8) 787 F2d 318, 40 BNA FEP Cas
Footnote 20. Espinoza v Thoma (1978, CA8) 580 F2d 346, 17 BNA FEP Cas 1362, 17
CCH EPD 8500.
Footnote 21.
511 Attacking and defending no-spouse rules

View Entire Section
No-spouse rules cannot be used as a pretext to discriminate. An employer's assertion that
a wife, rather than her husband, was being terminated because the husband was the head
of their household was rejected by the Fifth Circuit. 22 Similarly, a company's "sensitive
position" policy under which female secretaries who were married to male employees
were required to transfer to another division as a means of preventing disclosure of
sensitive management information violated Title VII. The policy of protecting
confidential information was not evenhandedly applied between men and women,
because men who were employed at the same level as supervisors of their spouses were
not required to transfer. 23
Furthermore, it may be difficult to prove the business necessity of a no- spouse rule in
particular instances. For example, a university's policy prohibiting members of the same
family from working in the same department violated Title VII, where a female applicant
was denied a professorship because her husband was already employed in the
department. The policy had a disproportionate impact on women and there was no
evidence of business necessity. 24 However, an employer's general conflict of interest
regulation that prohibited employment of a person in a job over which a member of that
person's immediate family exercised supervisory authority or who served on a board or
committee with authority to order personnel actions affecting the job did not violate Title
VII. The regulation applied to immediate family members, even those of the same sex.
25
Footnotes
Footnote 22. George v Farmers Electric Cooperative, Inc. (1983, CA5) 715 F2d 175, 32
CCH EPD 33816.
6794.
Footnote 25. Southwestern Community Action Council, Inc. v Community Services
Administration (1978, DC W Va) 462 F Supp 289, 19 CCH EPD 9258.
512 Discrimination in federal employment

View Entire Section
Go to Supplement
Discrimination on the basis of marital status is prohibited by a federal civil service statute
enforced by the Office of Personnel Management. 26 The statute also requires benefits
to be provided to a married female employee's spouse and children equal to those
provided to a married male employee's spouse and children. 27
512 ----Discrimination in federal employment [SUPPLEMENT]
Case authorities:
Appellant established prima facie case of marital discrimination with evidence, inter alia,
that his third-level supervisor told him that she disagreed with his selection for
supervisory position, that she had heard rumors that he was a womanizer, and that such
behavior was inconsistent with being married, and this evidence was corroborated by
first-level supervisor, who further indicated that third-level supervisor never inquired of
him about appellant's performance but raised issue of appellant's social activities in every
conversation she had with him. Kiser v Department of Educ. (1995, MSPB) 66 MSPR
372.
Footnotes
Footnote 26. 5 USCS 7204(b), (c).
i. Legal History [513-522]
513 Generally; arrest records

View Entire Section
Job requirements that condition a person's ability to obtain or retain work on his legal
history of arrest or conviction records may have an unlawful impact on racial or ethnic
groups protected by federal or state 28 job discrimination laws, especially if the

requirements are not directly job-related. A policy of refusing employment or
discharging job incumbents on the basis of arrest records is unlawful without evidence
that the requirement is necessary to the operation of the employer's business. Given that
minority group members are arrested in numbers disproportionate to their representation
in the population compared to whites, the effect of such a policy is to exclude a
disproportionate number of black applicants or employees. 29
The EEOC has concluded that when an employer imposes an arrest record as an absolute
bar to employment, such a job requirement may be a legitimate justification for exclusion
when the employee or applicant engaged in the conduct for which he was arrested and the
conduct is job-related and relatively recent. Thus, in evaluating the basis for such an
exclusion, the Commission will look for evidence that:
the employer took sufficient steps to determine whether the employee or applicant
actually engaged in the conduct for which he was arrested, including examination of the
surrounding circumstances, offering the individual an opportunity to explain, and
follow-up inquiries necessary to evaluate the individual's credibility;
the existence of adverse impact is supported by accurate and current statistics that are
specific to the region or applicant pool; and
the exclusion was based on the relationship of the criminal charges to the particular
position in question. 30
The EEOC has rejected bonding requirements as a business necessity justification for
disqualifying a black applicant for employment because of an arrest record. 31 The
EEOC also has ruled unlawful:
an employer's unwritten policy of denying employment to any applicant who has a
criminal court case pending, as applied to an individual arrested in a race-connected civil
rights demonstration; 32
a city ordinance that prohibited anyone with an arrest record from working as a
uniformed guard or special police officer; 33
a black employee discharged from a cashier job because she had an arrest record, where
none of her arrests were related to crimes of theft or embezzlement. 34
Although national security clearance regulations were not pertinent to the facts of a case
before it, a federal court has stated that a bar against the use of arrest record information
should not prohibit or preclude an employer from complying with security requirements.
35
Footnotes
Footnote 28.
State Aspects For discussion of state statutes pertaining to employers' use of arrest or
conviction records in hiring or other employment decisions, see Employment
Footnote 29. Gregory v Litton Systems, Inc. (1970, CD Cal) 316 F Supp 401, mod on
other grounds (CA9) 472 F2d 631, 5 BNA FEP Cas 267, 5 CCH EPD 8089; EEOC
Decision No. 71-797 (1970) 3 BNA FEP Cas 266, CCH EEOC Dec 6181; EEOC
Decision No. 75-103 (1974) CCH EEOC Dec 6529; EEOC Decision No. 77-9 (1977)
19 BNA FEP Cas 1146, CCH EEOC Dec 6564.
Annotation: Consideration of arrest record as unlawful employment practice violative
of Title VII of Civil Rights Act of 1964 (42 USCS 2000e et seq.), 33 ALR Fed
263.
Footnote 30. EEOC Policy Statement N-915.061.
6423.
Footnote 35. Gregory v Litton Systems, Inc. (1970, CD Cal) 316 F Supp 401, 2 BNA
FEP Cas 821, 2 BNA FEP Cas 842, 2 CCH EPD 10264, mod on other grounds (CA9)
514 Arrest record inquiries

View Entire Section
Because the fact that an individual has been arrested is not conclusive as to any
wrongdoing and is irrelevant to work qualifications, and because the mere inquiry into
arrest records tends to have a chilling effect on black applicants, such inquiries alone
violate Title VII, in the absence of a strong showing of business necessity. 36 Such
inquiries also exclude Spanish- surnamed Americans at disproportionate rates compared
with whites. 37
Observation: Even though authorities may acknowledge the possibility of a business

necessity defense justifying arrest record inquiries that have an adverse impact against
protected groups, there are no cases reporting a successful defense on this ground. 38
Footnotes
Footnote 36. Gregory v Litton Systems, Inc. (1970, CD Cal) 316 F Supp 401, 2 BNA
FEP Cas 821, 2 BNA FEP Cas 842, 2 CCH EPD 10264, mod on other grounds (CA9)
472 F2d 631, 5 BNA FEP Cas 267, 5 CCH EPD 8089; EEOC Decision No. 71-2089
(1971) 4 BNA FEP Cas 148, CCH EEOC Dec 6253; EEOC Decision No. 74-02 (1973)
6 BNA FEP Cas 830, CCH EEOC Dec 6386.
Footnote 37. EEOC Decision No. 76-3 (1975) CCH EEOC Dec 6598; EEOC Decision
No. 76-12 (1975) CCH EEOC Dec 6607.
Footnote 38. For a discussion of business necessity as a defense for prohibiting criminal
convictions, see 517-519.
515 Truthful response to arrest record inquiries

View Entire Section
Employment decisions that are predicated on an applicant's or employee's falsification or
incomplete answer to an arrest record inquiry are illegal, according to the EEOC. 39
Observation: This position is premised on either the chilling effect the questions
have on minority applicants or the fact that such inquiries will induce more false or
incomplete answers by minority group members who suffer a disproportionate number
of arrests and will thereby be disproportionately vulnerable to discipline for the
falsification.
However, an employer's practice of discharging employees for falsification of arrest
record information on job application forms did not violate Title VII in the case of a
black employee who was discharged for denying that he had an arrest record on an
application form that contained a legend stating that a false statement would be sufficient
cause for dismissal. The discharge policy did not amount to race discrimination against
blacks because they are arrested in proportionately greater numbers than whites.
Although blacks are more likely to suffer arrests, the former employee was not
discharged for having an arrest record, but for falsifying the application when he applied
for the job. In order to establish a prima facie case of disparate impact, the former
employee would have to have shown that blacks as a class were excluded for falsifying
arrest records at a higher rate than whites. The court noted and refused to follow EEOC
decisions finding that discharges of blacks for falsifying arrest record information
violated Title VII. 40
Footnotes
6253; EEOC Decision No. 74-08 (1973) 6 BNA FEP Cas 467, CCH EEOC Dec 6390;
EEOC Decision No. 76-53 (1975) CCH EEOC Dec 6638.
Footnote 40. Jimerson v Kisco Co. (1975, DC Mo) 404 F Supp 338, 11 BNA FEP Cas
EPD 11222.
516 No indictments
View Entire Section
A police department's policy of suspending employees who are indicted by a grand jury
did not violate Title VII. There was no evidence presented of disparate impact resulting
from the policy, and the EEOC found that there was no disparate treatment under the
policy, as it was implemented the same for black and white employees. 41
Observation: While this was a public employment case, the same considerations
might be applicable to private security guard firms. However, such firms have not
been allowed by the EEOC to bar employees with arrest records. 42
Footnotes
Footnote 42. 514.
517 No criminal convictions

View Entire Section
According to the EEOC, conviction of crime cannot be an automatic bar to employment,
because of an adverse impact against blacks and other minorities, unless the employment
policy is justified by business necessity. An employer's blanket policy of automatically
discharging employees convicted of crimes discriminated against black employees
because blacks are convicted at rates significantly in excess of their percentage in the
general population. 43 Furthermore, an employer's policy of automatically excluding
applicants with criminal convictions amounts to national origin discrimination when it is
applied in the southwest United States, where statistics reveal that the Spanish-surnamed
population has a disproportionate conviction percentage in comparison to the white
population in the area. 44 A white former employee also failed to show that his
discharge based on the employer's no- conviction requirement was racially
discriminatory, even though the employer had failed to follow its own policy
consistently, as the inconsistencies were evenly distributed among racial groups. 45
Given the disparate impact inherent in conviction record disqualifications, the EEOC has
held that the Title VII business necessity doctrine requires employers to consider all of
the job-related circumstances surrounding a conviction in determining that the
employment of the person would be manifestly inconsistent with the safe and efficient
operation of the business. The circumstances to consider may include the time, nature,
and number of convictions, the facts surrounding each offense, the job- relatedness of
each conviction, the length of time between a conviction and the employment decision,
the applicant's employment history before and after the conviction, and the applicant's
efforts at rehabilitation. 46 In another formulation of the business necessity defense, the
EEOC held that an employer must demonstrate that the nature of a particular criminal
conviction would prevent a job applicant from performing the job applied for in an
acceptable businesslike manner. 47
Footnotes
employmentAllegationRefusal to hire person convicted of criminal offense. 5A Am
Allegations in complaintRacial discrimination by employerRefusal to hirePerson
convicted of criminal offense other than minor traffic violation [42 USCS
2000e-2(a); FRCP 8(a)]. 12 Federal Procedural Forms, L Ed, Job Discrimination
45:109.
Footnote 44. EEOC Decision No. 78-03 (1977) CCH EEPC Dec 6714.
Footnote 45. Murphy v Postmaster General (1989, ND Ohio) 1989 US Dist LEXIS 643.
Footnote 46. EEOC Decision No. 75-103 (1974) CCH EEOC Dec 6529; EEOC
Decision No. 75-199 (1975) CCH EEOC Dec 6555; EEOC Decision No. 77-3 (1976)
19 BNA FEP Cas 1129, CCH EEOC Dec 6559; EEOC Decision No. 77-30 (1978) 21
BNA FEP Cas 1791, CCH EEOC Dec 6582; EEOC Decision No. 78-10 (1977) CCH
EEOC Dec 6767.
6763.
The job-relatedness of particular crimes is discussed at 518. Other factors in the
business necessity determination are discussed at 519.
518 Job-relatedness of conviction as justifying no-conviction- record requirement

View Entire Section

Job-relatedness is the most important factor in determining whether a conviction record
disqualification is justified by business necessity. 48 If it is established that the
conviction is not job-related, then it is unlawful under Title VII to disqualify an
individual because of the conviction. 49
Caution: A direct relationship between the conviction and the job is necessary for
job disqualification, but job-relatedness alone is not sufficient to carry a business
necessity defense. If the crime is job-related, employers must then evaluate other
factors to determine whether the applicant or employee could perform acceptably in
spite of the conviction. 50
The EEOC has found the relationship between the conviction and the job too remote to
justify disqualification where an employer:
refused to hire a black as a mechanic because of a gambling conviction; 51
discharged a black utility operator in a manufacturing plant who was convicted of
unlawful delivery of marijuana; 52
failed to hire a black crane operator because of a conviction for armed robbery. 53
The requirement that an applicant for city police officer not have three or more hazardous
or moving violation convictions in the past year, nor six such violations in the past two
years also was job-related, and therefore valid, despite its disparate impact on black
applicants. Evidence was presented that a history of moving traffic violations was a
reliable predictor of future accident involvement and the best available means of
screening drivers with a high accident potential. 54
On the other hand, the Fifth Circuit upheld, as job-related, a hotel's discharge of a
bellman upon discovering his convictions for theft and receiving stolen goods. The
bellman had access to guests' luggage and rooms, and was permitted to obtain room keys
from the desk clerk or to go behind the desk for keys. He was permitted to proceed
through hotel corridors unaccompanied without provoking inquiry, and to enter and leave
the hotel by any exit during the day carrying parcels. Finding a genuine business
necessity, the court held that it was reasonable for the hotel to require that employees
who have access to valuable property have a record reasonably free from convictions for
serious property-related crimes. 55
Caution: The EEOC has criticized the above case on the ground that the court's
business necessity test "strikes too broadly." The decision did not show whether the
employer or the court considered the former employee's recent work history, the
number and types of crimes committed, or whether the employment of the bellman
would have been at odds with the safe and efficient operation of the business.
In other cases, job-relatedness was established where an employer:
refused to hire a black applicant for a custodial job because of a felony conviction
involving robbery, where the job required possession of a master set of keys for the
facility; 56
refused to employ persons convicted of violent crimes, where the employer had had a
rash of violent altercations among employees during work hours on company property;
57
fired a black public auditorium utility worker because of a criminal record for rape,
assault and battery, drunkenness, and a firearms offense; 58
discharged a black apartment manager who had unsupervised access to apartments and
rent receipts, because of three convictions for theft-related offenses. 59
Footnotes
Cas 1805.
Footnote 50. 519.
6288.
6810.
6811.
1320, 40 CCH EPD 36116.
Footnote 55. Richardson v Hotel Corp. of America (1971, DC La) 332 F Supp 519, 3
BNA FEP Cas 1031, 4 CCH EPD 7666, affd (CA5) 468 F2d 951, 5 BNA FEP Cas 323,
5 CCH EPD 8101.
Footnote 57. EEOC Decision No. 76-84 (1976), CCH EEOC Dec 6662.
6720.
519 Comparing job-relatedness to other factors in determining business necessity

of no-conviction-record requirement
View Entire Section
Evidence of efforts at rehabilitation, a good work record, and the remoteness in time of
the conviction can be used to overcome job disqualifications for convictions that are
related to job performance. The business necessity defense was not effective, despite
job-related convictions, where an employer:
rejected a black applicant for a bus driver job based on a burglary conviction, because
six years had passed since the conviction and the applicant's subsequent work history and
efforts at rehabilitation were good, as shown by recommendations from previous
employers, community leaders, and parole and police officers; 60
failed to hire a black photographer who would have been required to handle money,
because of a forgery conviction, where six years had elapsed between the conviction and
the application for the job and the applicant had cooperated with authorities at the time of
the conviction, had been steadily employed following his conviction, and had continued
his education; 61
refused to hire a black crane operator/welder because of a six- year-old murder
conviction, where the applicant had worked for the employer for sixteen years before the
conviction without disciplinary or violent incidents and where the violent crime was
inconsistent with the applicant's established behavior. 62
failed to hire a black for a truckdriver or dockman job because of a thirteen-year-old
conviction for driving on a revoked license, and two drunkenness convictions, where the
most recent conviction occurred four years before the job application; 63
fired a black worker because of four felony convictions and an extensive criminal record
spanning 18 years, where 12 years had passed since the last conviction and the employee
had an excellent work record over the past years and had made significant efforts at
rehabilitation. 64
However, the evidence of ameliorating factors must be strong enough to overcome a
showing of job-relatedness. An employer's failure to hire a black applicant for a cashier
position because of a conviction for armed robbery was approved, even though four
months had passed between the conviction and the denial of employment and the
applicant's work history was good, where there was no evidence of the applicant's efforts
at rehabilitation. 65 Furthermore, job-relatedness considerations can outweigh relatively
strong evidence of the individual's rehabilitation and good work record, or the remoteness
in time of the conviction. Business necessity prevailed where an employer:
discharged a black truckdriver because of a drunk driving conviction, even though the
offense occurred on off-duty time in the worker's private vehicle and the driver had an
otherwise clean criminal and work record; 66
fired a black delivery person for a drug manufacturer because of convictions for larceny,
receiving stolen property, and illegal weapons offenses, even though the employee's work
record with the company was good; 67

refused to hire a black applicant as a kitchen helper because of eleven convictions, six
of which were theft-related, and the most recent of which was only six months before the
rejection for the job, despite the fact that the applicant had made consistent efforts to find
work since his release from prison; 68
failed to hire a black applicant for a bill collector job involving entry to customer's
homes because of a murder conviction stemming from an impulsive act, even though the
applicant had worked satisfactorily for the employer for four years before the conviction
and the crime was not consistent with the employee's established behavior before or after
the murder. 69
Observation: The balancing test reflects a concern that employers should not be
required to put personal safety and valuable property at great risks in employing
persons with histories of violent crimes or theft offenses. However, a countervailing
element of policy expressed in the balancing test seeks to stem the causes of relapse
into criminal behavior by establishing some standard by which ex-offenders can find
employment.
Footnotes
6808.
6809.
520 Conviction record inquiries

View Entire Section

Because conviction prohibitions may be justified by business necessity, 70 inquiries
about convictionsunlike arrest record inquiries 71 are not invalid under Title VII, as
long as they are job-related.
State aspects: Some state statutes expressly prohibit employers from asking job
applicants about convictions. 72
Footnotes
Footnote 70. 517.
Footnote 71. 514.
Footnote 72. For discussion of such statutes, see Employment Coordinator EP-18,575
et seq.
521 Truthful response to conviction record inquiries

View Entire Section
Employment policies calling for the discharge of applicants or employees who falsify
responses to employer conviction record inquiries are theoretically subject to Title VII
challenge. However, claimants have the difficult task of proving that members of their
minority group either lie about their conviction records more often than others or that
they are disproportionately excluded from employment because of such falsification. 73
Courts have rejected Title VII challenges to dismissals based on falsified responses to
employment inquiries concerning conviction records where:
a black maid failed to show disparate treatment or effect from the discharge policy or
that the policy was merely a pretext for unlawful discrimination; 74
the employer's policy of discharging employees for falsification was applied evenly to
blacks and whites; 75
a hospital fired a black nursing assistant who falsely denied a conviction for procuring.
76
Contrary to its position on employment decisions predicated on falsification of responses
to arrest record inquiries, 77 the EEOC does not consider it a violation of Title VII to
base an employment decision on the falsification of an answer to a conviction inquiry, as
long as the employer applies a neutral rule in a nondiscriminatory manner. 78 However,
the EEOC has strongly urged employers to use statements on employment application
forms, such as "A 'Yes' answer will not disqualify you from consideration" following any
question about criminal convictions. The EEOC has recommended that the words "will
not" be printed in boldface type and underlined. In announcing its decision, the EEOC
has overruled portions of previous decisions holding that because blacks as a class are
arrested and convicted substantially more frequently than other groups, more blacks
would be rejected or discharged because they answered the conviction inquiry in the
affirmative, not at all, or falsely. The EEOC cited the King decision, 79 which held that
a claimant must demonstrate disparate impact arising from the application of the
falsification policy.
Falsification of an applicant's conviction inquiry response was also held to be sufficient
justification under 42 USCS 1981 for an employer's refusal to hire him. 80
Footnotes
Footnote 73. King v Girard Bank (1978, DC Pa) 17 BNA FEP Cas 131, 17 CCH EPD
8455.
Footnote 74. Lester v Ellis Trucking Co. (1974, WD Tenn) 10 BNA FEP Cas 1036.
Footnote 75. Merriweather v American Cast Iron Pipe Co. (1973, ND Ala) 362 F Supp
Footnote 76. Osborne v Cleland (1980, CA8) 620 F2d 195, 22 BNA FEP Cas 1292, 22
CCH EPD 30882.
Footnote 77. 515.
6815.
Footnote 79. King v Girard Bank (1978, DC Pa) 17 BNA FEP Cas 131, 17 CCH EPD
8455.
Footnote 80. Avant v South Cent. Bell Tel. Co. (1983, CA5) 716 F2d 1083, 32 BNA FEP
Cas 1853, 32 CCH EPD 33851.

View Entire Section
The Uniform Guidelines on Employee Selection Procedures 81 apply to selection
procedures that are used as the basis for employment decisions, 82 including interviews
and unscored application forms. 83 The question whether the complex and
sophisticated validation guidelines apply to arrest and conviction record selection criteria
remains an open one in the courts. The Fifth Circuit has applied a mere reasonableness
test in validating a hotel's discharge of a black bellman who had been convicted of
serious crimes. 84
However, the Eighth Circuit indicated that the Guidelines do apply when it struck down a
railroad's rule denying employment to anyone convicted of a crime other than a minor
traffic offense. According to the court, the employer's bases for claiming business
necessity(1) a fear of cargo theft, (2) the possibility of loss if a convicted employee were
to handle company funds, (3) the need to meet bonding qualifications, (4) possible
impeachment of the convict as a witness, (5) possible company liability for hiring a
person with known violent tendencies, (6) employment disruption caused by recidivism,
and (7) alleged lack of moral character on the part of a person with a recordwere all
insufficient because the employer neither empirically validated its policy nor proved that
a less restrictive alternative with a lesser adverse racial impact would not serve as well.
85
Footnotes
Footnote 84. Richardson v Hotel Corp. of America (1971, ED La) 332 F Supp 519, 3
5 CCH EPD 8101.
248.
j. Military History [523-526]
523 Generally; lack of military obligation

View Entire Section
An employer may impose a job requirement relating to an applicant's or employee's
military history, including the person's status with regard to military obligations or past
service, if it does not discriminate against a group protected by federal laws.
Requirements concerning military obligations in the context of availability for work are
Even if only men are subject to military induction, refusing to hire someone because he is
likely to be drafted can be justified by business necessity when sex discrimination is
charged. The EEOC found that Title VII was not violated where a bank refused to hire a
college student for a trainee position, because he had a limited deferment and could be
inducted upon graduation. Successful applicants had to attend a two-year training
program that normally led to promotion to assistant manager. Since the student could
have been drafted within a few months, it was reasonable for the bank to exclude him
from the program. The likelihood and imminence of his induction were weighted against
the employer's need to have him a certain length of time before he would produce in a
profitable manner. 86
Observation: Obviously, this decision only has relevance during a period of active
military draft, and then only when the draft is limited to men. An equal basis of
conscription for both sexes would eliminate the issue of sex discrimination and make
Title VII inapplicable to the situation.
Footnotes
6047.
524 Completion of military service

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References in job advertising to job applicants' completion of military service are not
unlawful under the ADEA. No violation occurred where advertisements stated a
preference for individuals who had completed military service, 87 or for "returning vets
and those unable to continue in college." 88
524 ----Completion of military service [SUPPLEMENT]
Practice Aids: 18 Am Jur Proof of Facts 3d 627, Violation of Employee Lie Detector
Statute.
Footnotes
Footnote 87. Brennan v C/M Mobile, Inc. (1974, SD Ala) 8 BNA FEP Cas 551, 8 CCH
EPD 9532.
Footnote 88. Brennan v Approved Personnel Service, Inc. (1974, MD NC) 11 BNA FEP
Cas 683, 8 CCH EPD 9810, revd on other grounds (CA4) 529 F2d 760, 11 BNA FEP
Cas 688, 10 CCH EPD 10472.
525 Honorable discharge from military service

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Go to Supplement
Employers have been found guilty of unlawful racial discrimination by preferring job
applicants with honorable discharges or disability discharges over those with
dishonorable discharges, absent a showing that the policy was related to job performance.
Such discrimination has been found to be unlawful because of the disproportionate
number of black men who are dishonorably discharged from the Armed Forces. 89 An
employer also violated Title VII by discharging a black employee because he had
received a less-than-honorable discharge from military service. The employer failed to
show business necessity for the honorable discharge requirement. 90
Observation: A less-than-honorable discharge from the military can be the basis for
a denial of re-employment under the federal statute establishing veterans' reemployment rights. 91
525 ----Honorable discharge from military service [SUPPLEMENT]
Statutes:
38 USCS 2021 et seq. were redesignated as 38 USCS 4301 et seq. in 1992.
38 USCS 4301 et seq. were amended in various ways by the Uniformed Services
Employment and Reemployment Rights Act of 1994 (PL 103-353).
Footnotes
Footnote 89. Dozier v Chupka (1975, DC Ohio) 395 F Supp 836, 11 BNA FEP Cas 1331.
Footnote 91. For discussion of this statute (38 USCS 2021-2026), see Employment
526 Background check into discharge status

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Because of the higher incidence of less-than-honorable discharges among blacks than
whites, it has been held that the use of a general background investigation, which
included an inquiry into the applicant's military service, violated Title VII. 92
On the other hand, the EEOC rejected a claim that an employer failed to hire a male
applicant because of his sex, where the failure to hire was based on his
less-than-honorable discharge from the military. The employer's policy of verifying
military service status was applicable regardless of the applicant's sex, and there was no
evidence that the employer would have treated similarly situated female applicants
differently. 93 Also, the use of a general background investigation that included a check
into the applicant's military discharge and the circumstances surrounding the discharge
did not violate Title VII where the investigation had a very close relationship to job
performance. 94
Footnotes
13 CCH EPD 11380, 40 ALR Fed 421.
Annotation: Employer's consideration of background or "character" investigation of
applicant for employment, including inquiry into credit record, military service record,
and the like, as unlawful employment practice violative of Title VII of Civil Rights Act
of 1964, as amended (42 USCS 2000e et seq.), 40 ALR Fed 4073.
Footnote 94. Bailey v DeBard (1975, DC Ind) 10 CCH EPD 10389.
k. Financial Condition [527-530]
527 Requiring a good credit record

View Entire Section
An employer's requirement that applicants and employees have a good credit record may
have to be justified by business necessity if it is challenged by minority employees. On
the basis of census figures and other statistics showing that many more nonwhites than
whites are below the poverty level, the EEOC has concluded that an employer's
requirement of a good credit record for job applicants has a disproportionate impact on
nonwhites. 95 For example, a bank's good credit record requirement had an adverse
impact when statistics revealed that 35.4% of the total number of nonwhite persons in the
local geographic area were below the poverty level compared to 10.3% of the area's
whites. 96
The census or other data used to establish adverse impact must actually demonstrate the
adverse effect complained of, and must be statistically significant. Census figures
indicating that an employer's practice of disciplining employees who failed to pay their
"just debts" had an adverse impact on nonwhites living in a given area were held to be
irrelevant when the employer's practice applied only to its employees and not to job
applicants residing in the local geographic area. Further, the court held that statistics
showing that three of seven employees disciplined under the "just debts" rule between
1965 and 1973 were black were an insufficient basis for determining whether the rule had
an adverse impact on nonwhites. 97
Footnotes
6312; EEOC Decision No. 74-02 (1973) 6 BNA FEP Cas 830, CCH EEOC Dec 6386;
EEOC Decision No. 72-1176 (1972) 5 BNA FEP Cas 960, CCH EEOC Dec 6359.
6312.
Footnote 97. Robinson v Dallas (1975, CA5) 514 F2d 1271, 10 BNA FEP Cas 1235, 10
CCH EPD 10245.
528 Conducting a credit check

View Entire Section
An employer's use of credit checks on employees or prospective employees may violate
Title VII. The use of a general background investigation of job applicants, which
included, among many other categories, inquiries into the applicant's financial history,
violated Title VII where the investigation as a whole disqualified a disproportionate
number of minority applicants and was not shown to be job-related. 98
In another case, however, the business necessity defense was used successfully to justify
a bank's practice of making credit checks on successful job applicants, since the checks
were done in a facially neutral manner on blacks and whites alike, and served, especially
in the employment of tellers, a legitimate, job-related business purpose. 99
Footnotes
13 CCH EPD 11380; Dozier v Chupka (1975, SD Ohio) 395 F Supp 836, 11 BNA FEP
Cas 1331.
Annotation: Employer's consideration of background or "character" investigation of
applicant for employment, including inquiry into credit record, military service record,
and the like, as unlawful employment practice violative of Title VII of Civil Rights Act
of 1964, as amended (42 USCS 2000e et seq.), 40 ALR Fed 4073.
Footnote 99. EEOC v American National Bank (1979, ED Va) 21 BNA FEP Cas 1595,
affd in part and revd in part on other grounds, vacated in part on other grounds (CA4)
652 F2d 1176, 26 BNA FEP Cas 472, 26 CCH EPD 31920, cert den 459 US 923, 74 L
529 Requiring freedom from garnishment

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An employer's policy that calls for refusing to hire an applicant for discharging or
disciplining an employee for successive garnishments is unlawful under Title VII if it has
a disparate effect on blacks and is not justified by business necessity. 1
To show business necessity, an employer must prove that its policy fosters employee
productivity and that there is no acceptable alternative that will accomplish that goal
equally well and with a lesser racial impact. 2 In two court decisions, an employer's
policy of terminating employees who had their wages garnisheed three successive times
within a specified time period was held justified by legitimate, necessary, and valid
business purposes. Both courts found that, although more blacks than whites have their
wages garnisheed, the employer's policy was applied even-handedly to blacks and whites.
Garnishment placed a substantial burden on the employer's payroll department and
caused a considerable disruption in the employer's production and administrative
departments when requisite employee contact and court appearances had to be made. 3
Furthermore, ample justification for mild disciplinary measures was presented by the
inconvenience and bad community relations arising from an employee's failure to pay
debts and wage garnishments. An employer is entitled to consider an employee's
garnishment and give it whatever weight it deems appropriate in determining who should
be promoted, provided that doing so is not a pretext for racial discrimination. 4
On the other hand, the EEOC has held that an employer's policy of discharging
employees who received three wage garnishments violated Title VII, where the policy
had an adverse impact on black employees and where the only justification offered by the
employer was that constant inquiries by employees' creditors substantially detracted from
the efficiency of the employer's operation. 5 Similarly, business necessity was not
established by the expense and time involved in responding to attachments and
garnishments by a company's management and clerical staffs, by the annoyance and time
involved in answering letters and telephone calls from employees' creditors, or because
garnishments result in a loss of efficiency on the part of the employee whose wages have
been garnished. 6
Discharging an employee for having his earnings garnisheed for any one indebtedness is
also a violation of the Consumer Credit Protection Act. 7
State aspects: Virtually all of the states impose restrictions on refusals to hire and
other adverse employment actions related to garnishments or other official orders for
withholding from employees' wages. 8
Footnotes
Footnote 1. Wallace v Debron Corp. (1974, CA8) 494 F2d 674, 7 BNA FEP Cas 595, 7
CCH EPD 9246; Keenan v American Cast Iron Pipe Co. (1983, CA11) 707 F2d 1274,
Annotation: Garnishment discharge policy of employer as unlawful employment
practice violative of Title VII of Civil Rights Act of 1964 (42 USCS 2000e et seq.),
26 ALR Fed 394.
Footnote 2. Wallace v Debron Corp. (1974, CA8) 494 F2d 674, 7 BNA FEP Cas 595, 7
CCH EPD 9246.
Footnote 3. Friend v Leidinger (1977, ED Va) 446 F Supp 361, 18 BNA FEP Cas 1030,
8704; EEOC v Virginia Chemicals, Inc. (1978, ED Va) 19 BNA FEP Cas 425, 19 CCH
EPD 9206.
8704.
Footnote 6. Johnson v Pike Corp. of America (1971, DC Cal) 332 F Supp 490, 3 BNA
Footnote 8. For discussion of state statutes imposing such restrictions, see Employment
530 Requiring freedom from bankruptcy

View Entire Section
Individuals who seek the protection of bankruptcy laws are protected from job
discrimination. The federal Bankruptcy Code prohibits both public and private
employers from discriminating against an individual in employment solely because that
person is or has been a bankrupt or a debtor in bankruptcy, or has been associated with
such a bankrupt or debtor. 9
Footnotes
l. Personal Associations [531-538]
531 Generally; favoritism based on sexual relationships

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Federal job discrimination laws may forbid an employer, under certain conditions, from
establishing a job requirement that prevents employees or applicants from associating
with particular people or belonging to certain groups or organizations. Such laws may
also regulate an employer's ability to favor or disfavor the employment of relatives in
some instances.
Union affiliation requirements are separately discussed, 10 while the prohibitions of the
ADA against discrimination on the basis of association with a disabled person are also
discussed elsewhere. 11
The EEOC has stated that where employment opportunities or benefits are granted
because of an individual's submission to an employer's sexual advances or requests for
sexual favors, the employer may be held liable for unlawful sex discrimination against
other persons who were qualified for but denied such employment opportunities or
benefits. 12
531 ----Generally; favoritism based on sexual relationships [SUPPLEMENT]
Practice Aids: Is sexual favoritism sex discrimination? 21 Emp Rel LJ 1:163 (1995).
Case authorities:
Title VII does not create cause of action on behalf of plaintiff who suffers employment
discrimination because supervisor hires another person who is either supervisor's
sweetheart or former sweetheart, but who, in any event, later becomes supervisor's
spouse; favoring of paramour does not constitute violation of Title VII, since
"discrimination" is not based on sexism (whether gender or activity) but is rather more
akin to nepotism. Ayers v American Tel. & Tel. Co. (1993, SD Fla) 62 BNA FEP Cas
500, 7 FLW Fed D 235.
Footnotes
Footnote 11. 207.

Footnote 12. 29 CFR 1604.11(g).
Annotation: Nature and burden of proof in Title VII action alleging favoritism in
promotion or job assignment due to sexual or romantic relationship between supervisor
and another, 86 ALR Fed 230.
532 Prohibiting membership in minority organizations

View Entire Section
It is a violation of Title VII to deny equal employment opportunity because of
membership in lawful minority group organizations. The EEOC says that Title VII is
violated when an individual is denied an employment opportunity: (1) because his name
is associated with a national origin group; (2) because of his membership in, or
association with, a national origin group; (3) because of his membership in, or
association with, an organization identified with, or seeking to promote the interests of,
national origin groups; or (4) because of his attendance or participation in schools,
churches, temples, or mosques generally used by persons of a national origin group. 13
However, membership in organizations seeking to overthrow the government or engaged
in other illegal activities has not been protected. Discharge for membership in the United
Klans of America has been held not a violation of Title VII or 42 USCS 1981 as a
discharge on the basis of race. 14 A class consisting of Ku Klux Klan members has also
been held not entitled to the protection of 42 USCS 1985(3). 15 The discharge of a
black person from the position of probation and parole officer did not violate Title VII,
where a background investigation revealed that, among other things, he had been a
member and leader of the Black Panther Party and had called for the violent overthrow of
the government, even though he alleged that he had subsequently reevaluated his activity
and reoriented his attitudes. 16
Observation: Title VII specifically allows an exception to its prohibitions regarding

certain members of communist organizations. 17
Footnotes
Footnote 14. Bellamy v Mason's Stores, Inc. (1973, DC Va) 368 F Supp 1025, 6 BNA
FEP Cas 1145, 7 CCH EPD 9113, affd (CA4) 508 F2d 504, 9 BNA FEP Cas 1, 8 CCH
EPD 9852.
Footnote 15. Savina v Gebhart (1980, DC Md) 497 F Supp 65.
Footnote 16. Brown v Benton (1978, DC Okla) 452 F Supp 28, 17 BNA FEP Cas 490, 17
CCH EPD 8391.
Footnote 17. 110.
533 Prohibiting fraternization with minorities

View Entire Section
Association with members of a protected class is not a valid basis for adverse
employment action. The EEOC says it is a violation of Title VII to deny an employment
opportunity to an individual because of his association with persons of a certain national
origin group. 18
Courts will look to the nature of the association to decide if there has been unlawful
discrimination. Thus, to support a claim of discrimination or harassment based on an
association with minorities, the nonminority plaintiff must demonstrate a "significant
connection" with the minority individual beyond a "mere work-related friendship."
Absent any evidence of an active protest on behalf of her black coworker, a former head
teller failed to demonstrate that she was discriminated against based on her friendship
with and assistance to the coworker. 19
The dismissal of a white person because of his association with blacks has been held to
be illegal race discrimination against the white person. 20 Another employer also
unlawfully discriminated when it failed to hire a white applicant because of the
relationship between the applicant's sister and a black male by whom she had had biracial
children. 21 It has also been held that a white person is protected by 1981 from job
discrimination motivated by the sale of his house to a black. 22 However, a white
employee did not state a cause of action under 1981, 1983, or Title VII where she
claimed that her employer denied her the right to associate with and be supervised by
minorities, that her employer embarrassed her by giving her favorable treatment because
she was a member of the majority race, and that she was injured by the reputation of the
employer as one who discriminates on the basis of race. 23 A claim that an employer
infringed on the rights of association of black and Hispanic insurance sales managers by
failing to hire black insurance agents also could not be brought under 1981, because the
statute cannot be used to imply into every employment contract a right to associate with
members of minority groups. 24
The EEOC suggests that a provision be inserted in conciliation agreements under which
the respondent agrees that interracial fraternization is a personal right and that no
employee will be penalized in any manner because of the employee's exercise of that
right. 25
Footnotes

Footnote 19. Robinett v First Nat. Bank (1989, DC Kan) 1989 US Dist LEXIS 2390.
Footnote 20. Whitney v Greater New York Corp. of Seventh-Day Adventists (1975, DC
NY) 401 F Supp 1363, 13 BNA FEP Cas 1194, 13 CCH EPD 11307.
Footnote 22. De Matteis v Eastman Kodak Co. (1975, CA2) 511 F2d 306, 10 BNA FEP
Cas 153, 9 CCH EPD 9958, on reh (CA2) 520 F2d 409, 11 BNA FEP Cas 127, 10 CCH
EPD 10336.
Footnote 23. Gill v Monroe County Dept. of Social Services (1978, WD NY) 79 FRD
316, 19 BNA FEP Cas 540.
Footnote 24. Dowling v Prudential Ins. Co. (1988, SD NY) 49 BNA FEP Cas 748, 45
CCH EPD 37702.
534 Preference for relatives

View Entire Section
Nepotismthe practice of showing favoritism to relativesin itself does not violate Title
VII unless it is somehow related to a pattern of discrimination against those of a
particular national origin or some other protected class. 26
Nepotism, exercised as a
preference for relatives, can never be a discriminatory motive under Title VII, which only
forbids discrimination on the basis of race, religion, color, sex, and national origin. 27
While agreeing with the above statement, and noting that the court making it had
carefully limited its holding to disparate treatment situations, the Eleventh Circuit also
found that nepotism exercised in the employment context as a preference for relatives can
have an unlawful disparate impact on most groups protected by Title VII. However, since
every family group is composed of both men and women, it is unlikely that such
favoritism can ever have an unlawful sexual impact. 28 An employer's rule granting
preferences to children of deceased employees if they were the sole source of support for
the deceased's widow, were over 18, and applied within 30 days of the father's death or of
reaching age 18, was held to be facially neutral and not discriminatory. 29 Furthermore,
the mere fact that friends and relatives of employees were allowed to apply for work
without being referred by an employment service did not indicate discrimination, since
the effect was only that they had easier access to applications. 30
Nepotism discrimination also is not prohibited by 42 USCS 1981. 31
However, impermissible discriminatory practices were found where:
preferences were granted to stockholders, all of whom were relatives or friends of the
employer and members of a particular national origin group; 32
preferences were granted to friends and relatives of employees while black females
were underrepresented in the employer's work force; 33
only friends of the same race, gender, and age as the employer were hired, particularly
where independent evidence suggested that the person hired did not meet the minimum
qualifications for the position; 34
an airline had a "set aside" for white pilot applicants with relatives working for it of one
space in every other hiring class, as this contributed to a finding of disparate impact
discrimination against black pilot applicants by perpetuating the airline's discriminatory
word-of-mouth hiring practices and displacing qualified black applicants. 35
Although one court ordered an employer to remedy its past history of nepotism by
inaugurating an extensive recruitment effort aimed at previously excluded groups, 36
another court said that any discrimination that had been wrought by that employer's
nepotistic practices was negated by the number of blacks entering an apprenticeship
program under the employer's affirmative action plan. 37
Footnotes
Footnote 26. Sogluizzo v International Brotherhood of Teamsters (1981, SD NY) 514 F
For a discussion of nepotism in conjunction with word-of-mouth recruiting practices, see
572.
Annotation: Giving preference to relatives of employees when job openings occur as
violation of Title VII of Civil Rights Act of 1964 (42 USCS 2000e et seq.), 37
ALR Fed 15.
Footnote 27. Holder v Raleigh (1989, CA4) 49 BNA FEP Cas 47, 49 CCH EPD 38718.
Footnote 28. Platner v Cash & Thomas Contractors, Inc. (1990, CA11) 908 F2d 902, 53
Footnote 29. Scott v Pacific Maritime Asso. (1983, CA9) 695 F2d 1199, 30 BNA FEP
Cas 1517, 30 CCH EPD 33284.
Footnote 30. United States v Hayes International Corp. (1972, CA5) 456 F2d 112, 4
Footnote 31. Woods v State (1979, SD NY) 469 F Supp 1127, affd without op (CA2) 614
F2d 1293.
Footnote 33. Lea v Cone Mills Corp. (1971, CA4) 438 F2d 86.
Footnote 34. Morris v Communications Satellite Corp. (1991, DC Dist Col) 773 F Supp
Footnote 35. Taylor v USAir, Inc. (1991, WD Pa) 56 BNA FEP Cas 357.
Footnote 36. Scott v Pacific Maritime Asso. (1983, CA9) 695 F2d 1199, 30 BNA FEP
Cas 1517, 30 CCH EPD 33284.
Footnote 37. EEOC v Sheet Metal Workers, etc. (1978, DC Md) 463 F Supp 388, 21
535 Nepotism in summer employment

View Entire Section
The EEOC says that giving preference for summer work to college students who are the
children of employees is unlawful, where most of the employer's work force is white and
the effects of past discrimination in hiring have not yet been undone. 38 Moreover,
giving preference in hiring summer employees to the sons of employees discriminates
against females and is an unlawful employment practice. 39
Footnotes
6217.
6217.
536 Antinepotism rules

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Go to Supplement
Prohibiting the employment of relatives of current employees does not violate Title VII
unless the practice disproportionately affects protected groups, or is used unfairly against
particular individuals. The application of an employer's antinepotism rule violated Title
VII where the employer disqualified a woman under that rule after it had made
exceptions to the rule for male applicants. 40 However, an antinepotism policy was
valid, where no exceptions to the policy had been made after its inception and the
employment of several members of one family predated the policy. 41
The validity of rules prohibiting spouses from working for the same employer or within
the same company division is discussed in 510.
State aspects: Where an employee who had announced his engagement to a

coworker was informed that under his employer's antinepotism policy he would after
his marriage be required to choose between quitting, being fired, or being transferred to
a workplace different from the one at which his spouse worked, the employer's policy
was held not to violate a state statute prohibiting job discrimination on the basis of
"marital status." 42
536 ----Antinepotism rules [SUPPLEMENT]
Practice Aids: Caught between Scylla and Charybdis: Are antinepotism policies
benign paternalism or covert discrimination? 20 Emp Rel LJ 2:253 (1994).
Footnotes
Footnote 40. Linebaugh v Auto Leasing Co. (1978, DC Ky) 18 BNA FEP Cas 752, 18
CCH FEP 8904.
Footnote 41. Hoffman v Glidden Coatings & Resins, Div. of SCM Corp. (1986, ND
Ohio) 40 CCH EPD 36328.
Footnote 42.
537 Prohibiting association with bankrupts or debtors

View Entire Section
Both public and private employers are prohibited by the federal Bankruptcy Code from
discriminating in employment against individuals because they are or have been
associated with a bankrupt or debtor in bankruptcy. 43
Footnotes
538 Political affiliation and domicile

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Go to Supplement
It is not unlawful under the Government Employee Rights Act of 1991 to consider the
party affiliation, domicile, or political compatibility of an employee or applicant in
making employment decisions regarding employment on the staff of the Senate
leadership, of a committee or subcommittee, or of a member of the Senate, or in any
other position as an officer or employee of the Senate elected by the Senate or appointed
by a member. 44
538 ----Political affiliation and domicile [SUPPLEMENT]
Case authorities:
City employee's 42 USCS 1983 claim that she was transferred and subjected to other
forms of harassment because of her political affiliation would fail, where no evidence
was submitted supporting speculative assertion that employee's political association was
motivating factor behind transfer. Rivera-Cotto v Rivera (1994, CA1 Puerto Rico) 38 F3d
611, 7 ADD 77, 3 AD Cas 1581.
Claim of applicant for public employment against town, alleging violation of right to
political association as result of political patronage and manipulation of civil service, is
not denied summarily, where applicant alleged that although she was registered
Republican, she was denied civil service employment because someone with lesser
qualifications was unlawfully given job based on his position as Republican
Committeeman and his role in local politics, because issue of fact exists as to whether
First Amendment rights were abridged. Eisert v Town of Hempstead (1996, ED NY) 918
F Supp 601.
Developmental center employee and his family state no viable 1983 First Amendment
claim based on official stifling of their protest of closure of center, because complaint
itself states that, despite some resistance, center granted request for time off in order to
present disputed issues to state legislature. Greene v Hawes (1996, ND NY) 913 F Supp
136.
Terminated police chief may maintain 1983 action charging impermissible
discrimination on basis of political affiliation, even though his own political activities
were not implicated, where chief submits strong evidence that new township executive
replaced him with political crony, because township's arguments that chief was fired due
to (1) inadequate fulfillment of duties, (2) unfair treatment of subordinates, and (3)
noncompliance with civil service requirements are unconvincing; and it is unclear
whether political allegiance is proper prerequisite for police chief. Conjour v Whitehall
Township (1994, ED Pa) 850 F Supp 309.
Terminated dispatcher's 1983 claim against county communications department must
fail, where complaint about rudeness was her third violation of department policy in year,
triggering discharge, because evidence shows that dispatcher was terminated in
accordance with department policy, that her political affiliation was not taken into
consideration, and that arbiter upheld her dismissal without being unduly influenced by
county. Isajewicz v Bucks County Dep't of Communications (1994, ED Pa) 851 F Supp
161.
Turnpike commission employee's 1983 political discrimination claim must be
dismissed, even though supervisor allegedly made several comments to different people
indicating that promotions were awarded on basis of political patronage and appointed
former state senator's chief of staff to personnel committee and consulted with her on
personnel matters, where he did not attend either commission meeting at which relevant
personnel decisions were made and did not cast vote on personnel issues, because
evidence does not indicate that supervisor (1) had actual knowledge of political
discrimination, or (2) abstained from voting to allow discrimination to continue, or (3)
fostered atmosphere that tolerated, condoned, or encouraged discrimination. Christy v
Pennsylvania Turnpike Comm'n (1996, ED Pa) 912 F Supp 146.
Turnpike commission employee's 1983 political discrimination claim must be
dismissed, even though supervisor allegedly made several comments to different people
indicating that promotions were awarded on basis of political patronage and appointed
former state senator's chief of staff to personnel committee and consulted with her on
personnel matters, where he did not attend either commission meeting at which relevant
personnel decisions were made and did not cast vote on personnel issues, because
evidence does not indicate that supervisor (1) had actual knowledge of political
discrimination, or (2) abstained from voting to allow discrimination to continue, or (3)
fostered atmosphere that tolerated, condoned, or encouraged discrimination. Christy v
Pennsylvania Turnpike Comm'n (1996, ED Pa) 912 F Supp 146.
Summary judgment in favor of turnpike commission supervisory employees is warranted
in 1983 suit brought by female employee passed over for promotion to Deputy Chief
Counsel, where she asserts political patronage system prevented her from having fair shot
at job and notes incidents involving criticism of her and sexual statements to other
females, because she fails to produce any circumstantial or inferential evidence that
individual defendants discriminated against her because of gender. Verney v Dodaro
(1995, MD Pa) in 872 F Supp in 188.
Retired legislative liaison's 1983 political discrimination claim is denied, where
majority of liaison/legal assistant's duties involved working with state general assembly
wherein he served as Democratic education superintendent's "voice in legislature,"
because alleged constructive discharge or forced retirement following election of
Republican superintendent was justified, since position was one for which political
affiliation was appropriate requirement. Rouse v Nielsen (1994, DC SC) 851 F Supp 717.
Newly elected county judge executive would prevail in 42 USCS 1983 action brought
by employees of former executive alleging they were terminated on basis of political
affiliation, where employees, including purchasing agent, chief financial officer, office
manager, bookkeeper, and assistant to finance officer, had no First Amendment claims,
as nature of their jobs did not entitle them to be free from patronage dismissals. Blair v
Meade (1996, CA6 Ky) 76 F3d 97, reh, en banc, den (1996, CA6) 1996 US App LEXIS
6221.
Newly elected county judge executive would prevail in 42 USCS 1983 action brought
by employees of former executive alleging they were terminated on basis of political
affiliation, where employees, including purchasing agent, chief financial officer, office
manager, bookkeeper, and assistant to finance officer, had no First Amendment claims,
as nature of their jobs did not entitle them to be free from patronage dismissals. Blair v
Meade (1996, CA6 Ky) 76 F3d 97, reh, en banc, den (1996, CA6) 1996 US App LEXIS
6221.
Sheriff is granted judgment on pleadings in civil rights action by correctional officers
who alleged they were dismissed because of their political affiliations, because although
law with respect to patronage dismissal of bailiffs might have been clearly established
when officers were terminated, it cannot be said that reasonable person would have made
leap to find that corrections officers were likewise not subject to such dismissals;
therefore, sheriff is entitled to qualified immunity. Flenner v Sheahan (1996, ND Ill) 920
F Supp 905.
Terminated deputy's 1983 First Amendment claim is denied summarily, where off-duty
confrontation with bartender for which deputy was fired is characterized as either "heated
political discussion" or "barroom brawl", because even if everything in complaint of
deputywho admittedly openly supported sheriff's challenger in election about which
confrontation aroseis true, termination was proper since deputy sheriffs who actively
campaign against their bosses may be fired for that reason alone. Heideman v Wirsing
(1992, WD Wis) 840 F Supp 1285, affd (CA7 Wis) 7 F3d 659.
Fired jail matron is entitled to reinstatement to her position and back pay under 1983,
where she was very active in campaigning for new sheriff's opponent and it is obvious
that new sheriff resented her actions and terminated her because of them, because
motivating factor in termination of matron was her political activity and this violated her
First Amendment rights. Baum v Webb (1994, ED Ark) 863 F Supp 918.
Political terminations of employees of Missouri Secretary of State give rise to no viable
1983 complaint, where positions of legislative director, communications director, and
administrative assistant to executive deputy and chief aide required trust and confidence
of Secretary, because there is no genuine issue of material fact that jobs were
policymaking or confidential positions subject to discharge by political affiliation. Smith
v Cook (1995, WD Mo) 914 F Supp 348.
Footnotes
Footnote 44. P.L. 102-166 316.
m. Union Affiliations and Obligations [539-541]
539 Generally
View Entire Section

Job discrimination laws, particularly the religious accommodation provisions of such
laws, may conflict with requirements that an employee join a labor organization or pay
union dues. What happens when an employer refuses to hire, or takes other adverse
action against, an employee or applicant who refuses to join a union or pay union dues, as
required by the employer's collective bargaining agreement? Most such cases are
prompted by the employee's religious objections to unionism.
In its religious discrimination guidelines, the EEOC says an employer must accommodate
an employee whose religious beliefs prohibit his compliance with a collective bargaining
provision requiring him to join the union or pay union dues by excusing the employee
from the membership requirement and permitting him to pay a sum equivalent to the dues
to a charitable organization. 45
The Ninth Circuit has ruled that permitting an employee to pay the equivalent of union
dues to a charitable organization would not impose an undue hardship on an employer
even when the employer argued that granting such permission in individual cases would
draw protests from other employees and exact excessive administrative burdens on the
employer. 46
It has also been held that by offering to permit the employee to pay the
equivalent of union dues to a charity, including the employee's own church, an employer
made a good faith effort to accommodate the religious beliefs of the employee, despite
the fact the employee believed it contrary to his religious beliefs to be forced to
contribute to his church.
Observation: The Taft-Hartley Act has been amended to permit persons to defy
requirements that they join unions or pay union dues and thereafter keep their jobs.
However, under the terms of the amendment, those persons may be required by the
collective bargaining agreement to pay an amount equivalent to the union dues and
fees to a nonreligious charity and to reimburse the union for any representation in
grievance or arbitration proceedings. 47
Footnotes
Footnote 45. 29 CFR 1605.2(d)(2).
Footnote 46. Burns v Southern Pacific Transp. Co. (1978, CA9) 589 F2d 403, 17 BNA
843, 18 BNA FEP Cas 1430, 18 CCH EPD 8716A.
Footnote 47. For additional discussion of the relationship between the Taft-Hartley Act
and Title VII with respect to union dues, see the discussion at 1113 et seq.
540 Proving a prima facie case
View Entire Section

A prima facie case of religious discrimination under Title VII may be established where
the plaintiff shows that: (1) he had a bona fide belief that union membership or the
payment of union dues is contrary to his religious beliefs; (2) he informed the employer
of his religious beliefs; and (3) he was discharged or otherwise subjected to adverse
action for his refusal to join the union or pay union dues. 48
Footnotes
Footnote 48. McDaniel v Essex International, Inc. (1982, CA6) 696 F2d 34, 30 BNA FEP
Cas 831, 30 CCH EPD 33217, 95 CCH LC 13902; Nottelson v Smith Steel Workers
D.A.L.U. 19806 (1981, CA7) 643 F2d 445, 25 BNA FEP Cas 281, 106 BNA LRRM
BNA FEP Cas 136, 108 BNA LRRM 2923, 27 CCH EPD 32193.
541 Defending against a prima facie case

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In order to rebut a prima facie case of religious discrimination under Title VII resulting
from the discharge of an employee for failure to join a union or pay union dues, the
employer must show that it made a good faith effort to accommodate the employee's
religious beliefs, and that any further accommodation would create undue hardship. To
show undue hardship, the employer cannot rely on assumptions or opinions based on
hypothetical circumstances. 49
For example, proof that other employees would
grumble about a particular accommodation is insufficient to establish undue hardship. 50
Even economic pressures, however strong and harmful they might be, do not create
immunity for employers from liability under Title VII. 51 Rather, the employer must
show an actual disruption of coworkers' routines to establish undue hardship. 52
Reliance on a union security clause is no defense to an employer's failure to
accommodate. 53 However, in determining whether the employer's execution of an
employee's proposal for an accommodation to his refusal to pay union dues would bring
undue hardship on the employer, it is reasonable for the employer to consider the burden
such a proposal would place on the union. 54
Footnotes
Footnote 49. Anderson v General Dynamic Convair Aerospace Div. (1978, CA9) 589
30559, reh den, clarified (ED Wis) 489 F Supp 94, 25 BNA FEP Cas 277, mod on other
grounds (CA7) 643 F2d 445, 25 BNA FEP Cas 281, 106 BNA LRRM 2790, 25 CCH
136, 108 BNA LRRM 2923, 27 CCH EPD 32193.
Footnote 50. Burns v Southern Pacific Transp. Co. (1978, CA9) 589 F2d 403, 17 BNA
Footnote 51. Pennsylvania v International Union of Operating Engineers (1978, ED Pa)
469 F Supp 329, 18 BNA FEP Cas 1560, 19 CCH EPD 9028, 26 FR Serv 2d 1174,
motion den (ED Pa) 27 FR Serv 2d 974.
30559, reh den, clarified (ED Wis) 489 F Supp 94, 25 BNA FEP Cas 277, mod on other
136, 108 BNA LRRM 2923, 27 CCH EPD 32193.
Footnote 53. McDaniel v Essex International, Inc. (1981, WD Mich) 509 F Supp 1055,
25 BNA FEP Cas 574, 26 CCH EPD 31931, affd (CA6) 30 BNA FEP Cas 831, 30 CCH
EPD 33217, 95 CCH LC 13902.
n. Availability for Work [542-556]
(1). In General [542-544]
542 Generally; transportation to work

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All employers have some requirements that pertain to an employee's or applicant's ability
to get to work, or to appear for work during specified hours. These requirements may
conflict with legal protections against race, sex, or religious discrimination.
An employer may require employees to have access to transportation to the worksite
without violating Title VII.
The EEOC has held that an employer did not commit race discrimination by refusing to
hire a person who lived 25 miles from its plant, and who lacked private transportation to
work, where employees had to be able to arrange frequent shift changes on short notice.
55 A federal agency also could require applicants to live within commuting distance
from the job site, since the agency would be obligated to pay the relocation expenses of
anyone hired outside of that geographical area and the requirement was uniformly
applied. 56 Similarly, a court held that a hospital's requirements that operating room
nurses have transportation permitting availability for emergency surgery, and that all
employees have access to transportation enabling them to arrive at work on time, and to
work to the end of their assigned shifts, were business related and did not constitute race
discrimination. The court specifically found the public transportation in the commuting
area to be "inadequate." 57
Observation: An adverse impact on groups protected by Title VII will be more

likely, and easier to prove, where the employer requires ownership of private
transportation, rather than just "access to private transportation" sufficient to assure
availability for work.
Footnotes
6220.
Footnote 56. Brugmann v Baker (1988, DC Dist Col) 47 CCH EPD 38315.
Footnote 57. Equal Employment Opportunity Com. v North Hills Passavant Hospital
(1979, WD Pa) 466 F Supp 783, 19 BNA FEP Cas 211, 19 CCH EPD 9037.
543 Domestic responsibilities; generally

View Entire Section
An employer's assumption that domestic responsibilities as a wife or mother negatively
affect a woman's availability for work results in sex discrimination under Title VII if the
same assumption is not applied to men in their roles of husband or father. The Supreme
Court found that a policy of hiring men, but not women, with preschool age children is
sex discrimination unless the employer can show that family obligations that conflict
with work time are more demonstrably related to the job performance of women as a
class than men. 58
Observation: As a practical matter, it is improbable that an employer will ever be

able to demonstrate the proof required by the Court in this situation. Assumptions
regarding availability for work that are based on domestic responsibilities will always
constitute sex discrimination unless applied equally to men and women. This does not
mean, however, that employers can no longer require regular and timely attendance.
Availability for work is the essence of business necessity in many operations.
Employers are still free to institute and apply sex-neutral work requirements. These
rules can be used to deny employment to, or discipline, applicants and employees of
either sex whose domestic responsibilities prevent them from getting to work, as long
as they are applied equally to both sexes.
Footnotes
Footnote 58. Phillips v Martin Marietta Corp. (1971) 400 US 542, 27 L Ed 2d 613, 91 S
544 --Particular cases

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The EEOC has found sex discrimination in a domestic responsibilities context where the
employer assumed that a female applicant or employee, but not a male applicant or
employee, would:
be away from work to care for a spouse during a long-term illness; 59
because of marriage, leave the job due to family obligations and pregnancy, thus
increasing the employer's training costs; 60
because of marriage, resign to follow an employed spouse who could be transferred to
another location; 61
because of marriage, request frequent work schedule changes to meet domestic
responsibilities, and lower customer service when incapable of meeting the demands of
both home and work. 62
However, because staff attorneys hired by a county court had to undergo training before
they could function productively, the rejection of a pregnant applicant was not sex
discrimination when the employer's policy was to not hire anyone who intended to
interrupt employment during the training period for any reason. There was no proof that
women tended to request long leaves of absence more frequently than men. Thus, the
sex-neutral application of the policy did not have an adverse impact on women. 63
Similarly, an employer did not discriminate unlawfully by refusing to hire a pregnant
woman because her leave would interrupt her training. According to the employer, the
necessity for the plaintiff to take pregnancy leave during her training would affect her
"learning curve" and her value to the company. 64
Observation: The rejection of the pregnant applicant in the Marafino case 65 was
the first application of the employer's stated policy, and the case could have been
decided differently if the court did not believe the employer's assurances that there
would be equal applicability of the policy to male applicants in the future.
Recommendation: To enhance credibility when asserting that a policy concerning

availability for work is to be applied in a sex-neutral fashion, an employer should put
the policy in writing prior to its application.
Footnotes
6285.
Footnote 60. EEOC Decision, Case No. YSF9-060 (1969) CCH EEOC Dec 6011.
Footnote 63. Marafino v St. Louis County Circuit Court (1982, ED Mo) 537 F Supp 206,
29 BNA FEP Cas 621, 30 CCH EPD 33073, affd (CA8) 31 BNA FEP Cas 1536, 32
CCH EPD 33640.
Footnote 64. Ahmad v Loyal American Life Ins. Co. (1991, SD Ala) 767 F Supp 1114,
Footnote 65. Marafino v St. Louis County Circuit Court (1982, ED Mo) 537 F Supp 206,
29 BNA FEP Cas 621, 30 CCH EPD 33073, affd (CA8) 31 BNA FEP Cas 1536, 32
CCH EPD 33640.
(2). Religious Conflicts With Work Time [545-556]
545 Rule of reasonable accommodation; the Hardison case

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Go to Supplement
Under Title VII, an employer must reasonably accommodate the religious needs of
employees and applicants unless it can demonstrate undue hardship. 66 A religious
need for which accommodation is often sought is observance of a Sabbath or special
religious holiday, which will restrict the time employees are available for work.
Besides work time conflicts with Sabbaths and religious holidays or observances, the
EEOC has noted in its religious discrimination guidelines that employees also seek time
off for mourning periods for deceased relatives and for prayer breaks that are mandated
by their religious beliefs. 67

Faced with this problem in the landmark case of Trans World Airlines, Inc. v Hardison,
68 the Supreme Court found that it was not a violation of Title VII for TWA to
discharge an employee who refused to work on his Saturday Sabbath, where to
accommodate him would have required TWA to do one of the following: (1) violate a
neutral seniority system provision giving prerogatives on scheduled work time to senior
employees; (2) allow the employee to work a four-day week, replacing him with
supervisory personnel at a time when only a skeleton crew was scheduled to work, and
thus sacrifice efficiency; (3) secure a substitute through the payment of premium wages
at a cost of approximately fifty dollars per month. The court interpreted the phrase
"undue hardship" to mean that an employer does not have to bear more than a de minimis
cost in money or efficiency in addressing the employee's religious conflict with work
time. It further stated that an employer does not have to require employees of other
religions, or nonreligious employees, to work at times that are undesirable to them, in
order to replace the absent worker. In fact, if such an action were taken by the employer,
the court said it would constitute religious discrimination against those employees forced
to replace the absent worker.
Observation: While the Court did not address the question of the constitutionality of
the religious accommodation provision of Title VII under the Establishment Clause of
the First Amendment, it appears that the Court's interpretation of that provision was an
effort to reduce the burdens imposed on employers, labor unions, and other employees
in complying with that provision. Therefore, it correspondingly reduced the strength of
the arguments that the provision was unconstitutional. 69
Caution: The development of Title VII requirements concerning religious conflicts

with work time has been based on later court interpretations of Hardison. While
pre-Hardison cases included here appear to be consistent with that decision, any EEOC
and court rulings made before Hardison must be carefully examined to determine
whether they conform to the Hardison decision.
Any reasonable accommodation by the employer to the employee's need for leave for
religious observances is sufficient to meet the employer's accommodation obligation.
The employer need not further show that each of the employee's alternative
accommodations would result in undue hardship. Therefore, an employer who permitted
an employee to take unpaid leave for religious observances was not required to consider
alternative accommodations proposed by the employee. However, unpaid leave is not a
reasonable accommodation when paid leave is provided for other purposes, since such an
arrangement would display discrimination against religious practices that is the antithesis
of reasonableness. 70
Changed circumstances may alter an employer's obligation to accommodate. For
example, although an employer had accommodated the religious beliefs of a plaintiff for
over two years, once the employer changed the work schedules and the old
accommodation was discarded, the adoption of a week-to-week, wait-and-see posture
amounted to no accommodation at all. Between the time the new schedules were
implemented and the plaintiff was terminated, the employer had to attempt to
accommodate the plaintiff's sincere religious needs by, at a minimum, discussing
voluntary shift transfers and voluntary waiver of seniority rights. 71 Furthermore, a
partial accommodation is not reasonable if there is no undue hardship involved in a full
accommodation. Thus, where the employer could not demonstrate such hardship, it was
required to not only allow the employee time off to attend a religious festival, but also to
refrain from scheduling her to work on the festival days instead of requiring her to work
one shift during the festival period. 72
545 ----Rule of reasonable accommodation; the Hardison case [SUPPLEMENT]
practices, 26 Colum J L & SP 523 (1993).
A test of faith: Accommodating religious employees' "work-related misconduct" in the
United States and Canada, 15 Compar Lab LJ 250 (1994).
Statutes:
Case authorities:
Title VII plaintiff, who initially claimed disparate treatment, was not allowed to amend
his pleadings to include disparate impact claim, after close of discovery, since such
would prejudice defendant. Josey v John R. Hollingsworth Corp. (1993, CA3 Pa) 62
Footnotes
Annotation: Validity, construction, and application of provisions of Title VII of Civil
Rights Act of 1964 (42 USCS 2000e et seq.) and implementing regulations, making
religious discrimination in employment unlawful, 22 ALR Fed 580.
Footnote 67. 29 CFR 1605, Appendix A.
Footnote 69. For a full discussion of the constitutional issue, see 142.
Footnote 70. Ansonia Bd. of Educ. v Philbrook (1986) 479 US 60, 93 L Ed 2d 305, 107
Footnote 71. EEOC v Arlington Transit Mix, Inc. (1991, CA6) 57 BNA FEP Cas 888
(unpublished opinion).
Footnote 72. EEOC v Universal Mfg. Corp. (1990, CA5) 914 F2d 71, 53 BNA FEP Cas
1811, 54 CCH EPD 40283.
546 Effect of cost to employer on duty to accommodate

View Entire Section
An employer is required by Title VII to accommodate religious conflicts its employees
have with scheduled work time, unless to do so would cause the employer more than a de
minimis loss of money or efficiency. 73
The EEOC will assume that the infrequent or temporary payment of premium wages, and
the payment of administrative costs necessary for providing an accommodation, will be
no more than de minimis unless demonstrated to be otherwise. 74 The regulations
recognize that the regular payment of premium wages would generally be more than de
minimis, and cause undue hardship to the employer. 75
The EEOC's regulations explain the factors it will consider in determining when the cost
of accommodating a religious need with conflicting work time will constitute more than a
de minimis burden on the employer. These factors are: (1) the size and operating costs
of the employer, and (2) the number of individuals who will need a particular
accommodation. 76
Observation: The two factors listed in the regulations are uninformative in

evaluating how much of a burden an employer must bear when faced with a religious
need that conflicts with work time. For instance, a large employer may have to do
more because of its greater economic resources, and because it has more employees
from which substitutions can be secured. However, a larger employer may also have a
greater number of employees who need religious accommodation, and may be
restricted in what it can do by the terms of a collective bargaining agreement, thus
limiting its potential to make an accommodation without undue hardship.
The courts have not restricted themselves to these two factors, but have considered all of
the relevant circumstances in determining how much cost will equal undue hardship
when religious obligations conflict with work time. 77
Footnotes
Footnote 74. 29 CFR 1605.2(e)(1).
Footnote 75. 29 CFR 1605.2(e)(1).
Footnote 76. 29 CFR 1605.2(e)(1).
Footnote 77. For a listing of factors used by the courts, see 551.
547 Effect of disruption of seniority system on duty to accommodate

View Entire Section
The Hardison case 78 and its progeny 79 have made it clear that an employer and a
labor organization need not disrupt a seniority system, or involuntarily make special
exceptions to that seniority system, in order to accommodate an employee's religious
conflict with work time. An employer is not required to override its collective bargaining
agreement, in the face of union opposition, and create a special hybrid shift to
accommodate an employee who lacked sufficient seniority to bid out of his shift.
Although the employee's suggested accommodations would not have significantly
burdened the employer, routine application of the agreement precluded these
accommodations. 80
Observation: Whether or not a seniority system precludes a particular method of

accommodation may depend on interpretation of the terms of the collective bargaining
agreement. Of course, if seniority has been ignored to meet nonreligious work time
conflicts of employees in the past, it should be ignored for comparable religious
conflicts with work time on the same basis, or disparate treatment on grounds of
religion will be found.
Footnotes
Footnote 79. See, for example, Rohr v Western Electric Co. (1977, CA8) 567 F2d 829,
16 BNA FEP Cas 642, 15 CCH EPD 8013; Huston v International Union, United Auto.,
etc. (1977, CA8) 559 F2d 477, 15 BNA FEP Cas 326, 14 CCH EPD 7701.
Footnote 80. Meadows v Golden Grain Macaroni Co. (1987, ND Ill) 45 BNA FEP Cas
235, 44 CCH EPD 37506.
548 Effect of potential hardships on duty to accommodate

View Entire Section
An employer cannot rely on potential or hypothetical hardships, unsupported by facts, to
establish an existing undue hardship, when faced with a religious obligation that conflicts
with scheduled work. 81 For instance, while the courts are unsympathetic to speculative
assertions that other employees may complain about the "special treatment" an employee
would receive, 82 they credit such complaints after they are actually made. 83
Recommendation: When an employer is uncertain as to whether a particular

accommodation to a religious conflict with work time will exceed de minimis costs in
money or efficiency, it may be advantageous to attempt the accommodation for a short
time, in order to evaluate it in terms of factually established costs.
Footnotes
Footnote 81. Brown v General Motors Corp. (1979, CA8 Mo) 601 F2d 956, 20 BNA FEP
Cas 94, 20 CCH EPD 30048.
Footnote 82. Edwards v School Board (1980, WD Va) 483 F Supp 620, 21 BNA FEP Cas
1375, vacated, in part on other grounds (CA4) 658 F2d 951, 26 BNA FEP Cas 1147, 26
CCH EPD 32084.
Footnote 83. Brener v Diagnostic Center Hospital (1982, CA5) 671 F2d 141, 28 BNA
FEP Cas 907, 28 CCH EPD 32550; Murphy v Edge Memorial Hospital (1982, MD Ala)
550 F Supp 1185, 30 BNA FEP Cas 1756.
549 Duty of employee to cooperate in resolving conflict

View Entire Section
An employee is not obligated to suggest or propose the specific means of accommodation
to work time that will satisfy his conflicting religious needs. 84
Even where an employee absolutely refuses to work on his Sabbath, an employer still is
obligated to make some offer of accommodation. The reasonable accommodation
provision places a burden to attempt accommodation on the employer, not a burden to be
reasonable on the employee. 85 Moreover, requiring an employee to seek his own

replacement was an unreasonable accommodation where he believed it was morally
wrong either for him to work on Sundays or to ask others to substitute for him. 86
However, an employer will not be liable for failing to reasonably accommodate a
religious conflict with worktime if the employee refuses to cooperate in reaching an
acceptable solution. For instance, where an employee refused to use the means already
available to accommodate his religious needs, such as a leave of absence, and where he
insisted on serving punishments for absences that the employer had agreed to waive, the
Eighth Circuit concluded that it was not religious discrimination to fire him. 87
Similarly, when an employee seeking reinstatement with a bank required an absolute
guarantee of no Saturday work in order to observe her Sabbath, the Fourth Circuit found
this condition to be so absolute and unlimited in scope as to be an unreasonable request.
88
An employer also is not liable for failure to provide reasonable accommodation for an
employee's religious obligations when the employee has voluntarily entered the situation
that results in the conflict. For example, when an employee sought and obtained a
transfer without promotion to a position that entailed a greater likelihood of overtime
work being required on her religious Sabbath, and placed her name on the list of
employees desiring overtime, the employer was not obliged to prevent her from being
called for overtime duty before other employees. 89
An employer may not be required to provide an accommodation to an employee's
religious work-time conflict that it reasonably believes the employee will refuse. Thus, a
plaintiff's contention that the employer was required to demote her, rather than discharge
her, failed not only because she never communicated this option to the employer, but also
because the trial evidence showed that she clearly communicated her rejection of
alternative positions and took a strong position against any reduction in pay by way of
accommodating her religious needs. 90
Recommendation: Employers should attempt to make an offer of accommodation to

religious work time conflicts and not surmise that their offers will be refused before
they are made, unless the evidence that it will be refused is overwhelmingly clear.
Footnotes
FEP Cas 907, 28 CCH EPD 32550; Redmond v GAF Corp. (1978, CA7) 574 F2d 897,
Footnote 85. EEOC v Ithaca Industries, Inc. (1988, CA4) 849 F2d 116, 46 BNA FEP Cas
BNA FEP Cas 600, 46 CCH EPD 37879; U.S. EEOC v J.P. Stevens & Co. (1990, MD
NC) 740 F Supp 1135, 53 BNA FEP Cas 768, 54 CCH EPD 40266.
Footnote 87. Chrysler Corp. v Mann (1977, CA8) 561 F2d 1282, 15 BNA FEP Cas 788,
15 CCH EPD 7834.
Footnote 88. Jordan v North Carolina Nat. Bank (1977, CA4) 565 F2d 72, 15 BNA FEP
Cas 1322, 15 CCH EPD 7873.
Footnote 89. Mann v Frank (1992, WD Mo) 59 CCH EPD 41685.
Footnote 90. Wisner v Truck Cent., Subsidiary of Saunders Leasing Systems (1986,
550 Duty of employee to inform employer of impending conflicts

View Entire Section
It is the responsibility of the employee to fully inform the employer of impending
conflicts between his religious needs and scheduled work time, reasonably in advance of
the occurrence. 91
Failure to fully explain what alterations to work time will be necessary, and to give the
employer sufficient time to arrange schedule changes and substitutions, may make it
impossible to accommodate the religious needs without undue hardship to the employer.
Employers were able to show undue hardship where:
it was unreasonable for an employee to give only three days notice when requesting two
weeks off to attend religious functions; 92
an employee gave only two days' notice of a conflicting religious obligation; 93
an employee failed to fully inform his employer about his religious needs until after
incurring a number of absences for that purpose. 94
Footnotes
16 CCH EPD 8231.
Footnote 92. Ferguson v Kroger Co. (1978, SD Ohio) 16 BNA FEP Cas 773, 16 CCH
EPD 8240, affd without op (CA6) 22 BNA FEP Cas 1376, 23 CCH EPD 31088.
Footnote 94. Chrysler Corp. v Mann (1977, CA8) 561 F2d 1282, 15 BNA FEP Cas 788,
15 CCH EPD 7834.
551 List of factors affecting determinations of reasonable accommodation

View Entire Section
When religious obligations conflict with scheduled work, a determination of what type of
accommodation is reasonable, and how much hardship the employer must bear,
necessarily depends on the particular circumstances. Besides the supremacy of a
collective bargaining agreement, no one factor predominates in evaluations of these
questions. Instead, the courts have viewed the totality of the relevant circumstances in
determining to what extent the employer will be burdened by an employee's conflicting
religious needs, and whether that burden will exceed the de minimis standard of cost or
efficiency.
The courts have considered the following factors in attempting to resolve worktime
conflicts with religious obligations, and in determining what type of accommodation can
be made without undue hardship to the employer:
the length of time involved in the desired accommodation; 95
the availability of replacements, depending on the amount of advance notice given; 96
reduced efficiency caused by supervisors substituting for the absent employee; 97
the cost of hiring additional employees; 98
the cost of paying premium wages for overtime; 99
the difficulty in securing qualified replacements for specialized skills; 1
the rigidity of the employee's demand for guarantees of time off; 2
the volume of the employer's business at the time the accommodation was sought; 3
whether the employer had previously attempted or provided accommodations to
employees' religious obligations; 4
the effect on workforce morale of anticipated or actual complaints of favoritism from
other employees; 5
whether efficiency would suffer if the employee left without any replacement; 6
the number of employees requiring religious accommodations at one time. 7
Footnotes
Footnote 95. Ferguson v Kroger Co. (1978, SD Ohio) 16 BNA FEP Cas 773, 16 CCH
EPD 8240, affd without op (CA6) 22 BNA FEP Cas 1376, 23 CCH EPD 31088;
Padon v White (1979, SD Tex) 465 F Supp 602, 19 BNA FEP Cas 132, 19 CCH EPD
9213.
Footnote 96. Willey v Maben Mfg., Inc. (1979, ND Miss) 479 F Supp 634, 21 BNA FEP
Cas 750, 22 CCH EPD 30766; Ferguson v Kroger Co. (1978, SD Ohio) 16 BNA FEP
Cas 773, 16 CCH EPD 8240, affd without op (CA6) 22 BNA FEP Cas 1376, 23 CCH
EPD 31088; Wangsness v Watertown School Dist. (1982, DC SD) 541 F Supp 332, 29
Footnote 98. Brener v Diagnostic Center Hospital (1982, CA5 Tex) 671 F2d 141, 28
Footnote 1. Reid v Memphis Publishing Co. (1975, CA6) 521 F2d 512, 11 BNA FEP Cas
129, 10 CCH EPD 10373, reh den (CA6) 525 F2d 986, 12 BNA FEP Cas 608, 11 CCH
EPD 10759 and cert den 429 US 964, 50 L Ed 2d 333, 97 S Ct 394, 13 BNA FEP Cas
1408, 12 CCH EPD 11234, reh den 433 US 915, 53 L Ed 2d 1101, 97 S Ct 2989, 14
CCH EPD 7635; Wangsness v Watertown School Dist. (1982, DC SD) 541 F Supp 332,
Footnote 2. Jordan v North Carolina Nat. Bank (1977, CA4) 565 F2d 72, 15 BNA FEP
Cas 1322, 15 CCH EPD 7873.
Footnote 3. Cross v Bailar (1979, DC Or) 477 F Supp 748, 22 CCH EPD 30656; EEOC
v Blue Bell, Inc. (1976, DC Tex) 14 BNA FEP Cas 1013, affd without op (CA5) 599 F2d
1051, 20 BNA FEP Cas 1422.
Footnote 5. Brener v Diagnostic Center Hospital (1982, CA5) 671 F2d 141, 28 BNA FEP
Cas 907, 28 CCH EPD 32550; Draper v United States Pipe & Foundry Co. (1975, CA6)
527 F2d 515, 11 BNA FEP Cas 1106, 10 CCH EPD 10546; Murphy v Edge Memorial
Hospital (1982, MD Ala) 550 F Supp 1185; Edwards v School Board (1980, WD Va) 483
F Supp 620, 21 BNA FEP Cas 1375, vacated, in part on other grounds (CA4) 658 F2d
Footnote 6. Riley v Bendix Corp. (1972, CA5) 464 F2d 1113, 4 BNA FEP Cas 951, 4
CCH EPD 7902; Johnson v United States Postal Service (1973, DC Fla) 364 F Supp 37,
6 BNA FEP Cas 705, 6 CCH EPD 8984, affd (CA5 Fla) 497 F2d 128, 8 BNA FEP Cas
371, 8 CCH EPD 9548.
Footnote 7. EEOC v Blue Bell, Inc. (1976, DC Tex) 14 BNA FEP Cas 1013, affd without
op (CA5) 599 F2d 1051, 20 BNA FEP Cas 1422.
552 Accommodating minor work time conflicts

View Entire Section
The frequency and duration of the religious accommodation sought by an employee will
primarily dictate the type of accommodation with scheduled work time that an employer
will be required to provide.
If the religious needs of the employee can be satisfied on a "one-shot" basis, or only
conflict with a small amount of work time on a regular basis, the usual methods of
accommodation will be flexible scheduling, and leave time without pay.
The EEOC's religious discrimination guidelines suggest that the following work
scheduling methods, can be utilized to accommodate a religious conflict with work time:
flexible arrival and departure times;
floating or optional holidays;
flexible work breaks;
the use of lunch time in exchange for early departure;
staggered work hours;
making up time lost due to religious obligations. 8
When no more than a de minimis loss of efficiency results, an employer may be required
to accommodate the religious obligations of an employee by permitting him to have time
off without pay. 9
Footnotes
Footnote 8. 29 CFR 1605.2(d)(1)(ii).
CCH EPD 8231; EEOC v Picoma Industries, Inc. (1978, SD Ohio) 495 F Supp 1, 24
BNA FEP Cas 59, affd without op (CA6) 627 F2d 1090, 26 BNA FEP Cas 808.
553 Accommodating long-term conflicts

View Entire Section

If the religious accommodation sought by an employee is for an extended period of time,
or conflicts with a significant amount of scheduled work on a regular basis, the usual
methods of accommodation include: (1) lateral transfers or reassignments to shifts or
jobs that do not conflict with a religious obligation; 10 or (2) arranging for or permitting
voluntary substitutes, who will swap their nonconflicting work time with the employee
needing accommodation. Providing an opportunity for employees to swap work shifts
voluntarily is a reasonable accommodation for an employee whose religion does not
permit secular labor on the Sabbath, even if the employee's coworkers may be unwilling
to do so, but the reasonable accommodation requirement is not satisfied if the opportunity
is offered under circumstances that discourage employees from trading shifts. When an
employer circulated a questionnaire inquiring about its employees' approval of and
willingness to engage in shift swapping for the benefit of an employee whose religion
forbade working on the Sabbath, an issue was raised about whether the questionnaire
dissuaded the employees from trading shifts. 11
Other employers met their reasonable accommodation duty owed to an employee who
wanted his Sabbath off by:
attempting to find someone to swap shifts with him, notifying him of vacancies on other
shifts, and giving him two Fridays off without pay while exploring the problem with the
union; 12
offering, within the constraints of its collective bargaining agreement, to permit the
employee to use his bidding and seniority rights to seek other positions at the plant not
requiring overtime that conflicted with the employee's request to have off Sundays. 13
However, an employer did not make reasonable accommodation to a plaintiff's religious
beliefs where the employer made no effort to explore the alternative of using voluntary
substitutes when the plaintiff informed the employer that he did not want to work on
Sundays for religious reasons and suggested the voluntary substitute alternative. 14
Transferring or reassigning an employee to a lower paying position may be a reasonable
accommodation, if other solutions to the religious conflict cause more than de minimis
hardship to the employer. 15 For example, transferring an employee who did not want
to work on Saturday for religious reasons from the position of produce manager to the
position of stock clerk was a reasonable accommodation. Saturday was the busiest day of
the week for the produce department, and it was traditional in the grocery store industry
for the produce manager to work on Saturday. To operate a produce department without
the person who was responsible for the department's profit being present on the busiest
day of the week would create a hardship on the company. 16
EEOC regulations instruct employers to facilitate voluntary substitutions by publicizing
policies in favor of substitutions, and by providing bulletin boards or other means of
matching the voluntary substitutes with those who have religious obligations. 17
Soliciting replacements for a Baptist employee who objected to working on Sundays and
to asking others to work for him would not have caused undue hardship, where the
employer had a mechanism in place for soliciting replacements through newspaper and
bulletin board advertisements. 18
Observation: Voluntary substitutes will be more easily found if the time needed for
the accommodation is not a generally undesirable work time for all employees, such as
weekends.
Footnotes
Footnote 10. 29 CFR 1605.2(d)(1)(iii).
Footnote 11. McGuire v General Motors Corp. (1992, CA6) 956 F2d 607, 58 BNA FEP
Cas 125, 58 CCH EPD 41287.
235, 44 CCH EPD 37506.
Footnote 13. EEOC v Chrysler Corp. (1987, ND Ohio) 652 F Supp 1523, 45 BNA FEP
Cas 513, 43 CCH EPD 37181.
Footnote 14. Boomsma v Greyhound Food Management, Inc. (1986, WD Mich) 639 F
Supp 1448, 41 BNA FEP Cas 1365, 43 CCH EPD 36991, app dismd without op (CA6)
Footnote 15. Dixon v Omaha Public Power Dist. (1974, DC Neb) 385 F Supp 1382, 10
Footnote 16. Benefield v Food Giant, Inc. (1985, MD Ga) 630 F Supp 78, 40 BNA FEP
Cas 135, 38 CCH EPD 35786, affd without op (CA11) 792 F2d 1125, 41 BNA FEP Cas
584, 41 CCH EPD 36499.
Footnote 17. 29 CFR 1605.2(d)(1)(i).
554 Temporary accommodations

View Entire Section
When faced with a request for a religious accommodation, an employer should consider
using one of the alternative methods of accommodation on a temporary basis, while a
permanent accommodation is being fully explored. Thus, when a telephone company
could not make a permanent accommodation to the religious needs of a lineman, the
company committed religious discrimination in failing to provide a temporary
accommodation before fully exploring permanent solutions. The employer had
previously allowed scheduling changes or allowed employees to come in late or leave

early for such secular purposes as Toastmaster meetings, Boy Scout meetings, bowling
tournaments, and university attendance. 19
However, an employer was not obligated to permit a Seventh-Day Adventist employee to
transfer temporarily until he accrued sufficient seniority to transfer out of his shift, even
though it routinely permitted such transfers for any good reason and without regard to its
staffing needs. With one exception, involving an employee whose doctor believed she
would benefit medically from the change, the employer had limited such changes to short
periods of time. The Adventist, on the other hand, in effect wanted an unlimited change
to avoid the strictures of the seniority system. 20
Footnotes
Footnote 19. Claybaugh v Pacific Northwest Bell Tel. Co. (1973, DC Or) 355 F Supp 1, 5
235, 44 CCH EPD 37506.
555 Pre-employment inquiries concerning availability for work

View Entire Section
The EEOC's religious discrimination guidelines outline, with great particularity, the
employer's duty to make a reasonable accommodation in the context of pre-employment
inquiries concerning the applicant's availability for work. 21 The regulations prohibit
these inquiries unless the employer can prove that: (1) asking such questions does not
have an exclusionary effect on applicants who need a religious accommodation; or (2) the
use of such inquiries is justified by business necessity. 22
Observation: In effect, the EEOC has reversed the adverse impact burden by
regulatory presumption. In the usual adverse impact situation, the employer's burden
to show business necessity only arises after the plaintiff has demonstrated that an
adverse impact results from the use of a particular employee selection device. 23
Insofar as the EEOC's presumption of adverse impact here is inconsistent with the
Supreme Court's disparate impact rules, it is possible that the presumption will not be
upheld by the courts.
Even if one assumes an exclusionary effect against those who have religious conflicts
with work time, the regulations create a disparate treatment situation by ignoring a
presumably equal effect against those who have secular conflicts with work time.
The EEOC's guidelines further describe a "less exclusionary" procedure for the employer
that claims that pre-employment inquiries about availability for work are justified by
business necessity. Under this procedure, the employer should (1) tell the applicant what
the normal work hours are, and that he is not required to state any conflicting religious
obligations at that time; (2) ask the applicant if, absent any religious conflicts, he is
available during the normal working hours; (3) after a position is offered, but before the
applicant is hired, ask specifically about religious conflicts with work time; (4) if
conflicts exist, attempt a reasonable accommodation without incurring undue hardship.
24
Footnotes
Footnote 22. 29 CFR 1605.3(b)(2).
Footnote 23. 2723.
Footnote 24. 29 CFR 1605.3(b)(2)(ii).
556 Accommodating federal employees' religious beliefs

View Entire Section
A federal law states that, unless there are exceptions necessary to efficiently carry out the
mission of a federal agency, 25 a federal civil service employee may elect to work
overtime for time lost due to absences from work for meeting religious requirements
dictated by his personal religious beliefs. 26
Footnotes
C. Recruiting and Hiring Practices [557-599]
Research References
29 USCS 623, 2009; 42 USCS 1981, 2000e-2, 2000e-3, 2000e-3,
P.L. 102-166
28 CFR Part 41; 29 CFR Parts 30, 1604, 1607, 1625, 1630; 41 CFR Part 60-1,
60-20, 60-50

3 Am Jur POF2d 221, Racial Discrimination in EmploymentRecruiting and Hiring
Practices
1. Overview; Practical Considerations [557-560]
557 Generally
View Entire Section
Go to Supplement
Virtually every federal and state 27 job discrimination and fair employment practices
law regulates the hiring practices of employers.
With certain exceptions, 28 job discrimination in employers' hiring practices is
prohibited by:
42 USCS 1981; 30
the Americans with Disabilities Act (ADA); 32
the Government Employee Rights Act of 1991; 33
the Civil Rights Act of 1991, with respect to employment by the House of
Representatives 34 and the instrumentalities of Congress; 35
most of the federal statutes outlawing discrimination on federal projects. 36
The ADA forbids an employer from refusing to hire an applicant with a disability based
on a generalized fear about safety or a generalized assumption about his absenteeism rate.
37 However, it is not intended to require businesses to prefer applicants with
disabilities over other applicants on the basis of disability. 38 Rehiring decisions are
also regulated by the ADA. 39 The regulation of rehiring decisions under 1981 is
discussed in the context of reemployment after discharge, elsewhere. 40
Hiring decisions may involve the use of tests and other employee-selection procedures,
and may focus on the employer's job requirements for the particular position. 41 Hiring
decisions may be challenged in individual or pattern-and-practice disparate treatment
cases, or on a disparate impact theory. 42 This division discusses those principles
insofar as they specifically apply in hiring cases.
An employer may have an affirmative duty to ameliorate the effects of its past
discriminatory practices or reputation for discrimination. It has been held that an
employer violated Title VII by failing to take steps to recruit minority employees in a
way sufficient to overcome its reputation for discrimination, which it acquired from
pre-Title VII discriminatory practices. 43
Observation: Under the various federal laws outlawing discrimination on

government projects, employers may have a duty to take affirmative action to hire
minorities and women. 44 Furthermore, the EEOC encourages employers to
voluntarily examine their employment practices and to remedy any discriminatory
patterns by instituting voluntary outreach recruiting programs to increase minority
applicant flow.
Recommendation: To increase the number of minority or female applicants,

employers should contact social and civic organizations in the minority community,
recruit at educational institutions with significant minority group or female enrollment,
encourage minority employees to refer applicants, extend recruiting advertising to
media that reach into the minority community, and establish part-time and work-study
employment programs that benefit minority and female employees.
Case authorities:
White male police officer applicant seeking dissolution of preliminary injunction failed
to establish that police department hiring practices which included use of written ranking
exam that disproportionately eliminated minorities and women from police force was
intentionally discriminatory. Pennsylvania v Flaherty (1993, CA3 Pa) 983 F2d 1267, 60
CCH EPD 41984.
Footnotes
Footnote 27.
State Aspects For discussion of state fair employment practice laws specifically
regulating hiring practices, such as recruitment, advertising, and the application
process, see Employment Coordinator EP-18,865 et seq.
Footnote 28. As to the exceptions to statutory prohibitions on employment
discrimination, see 268 et seq.
Footnote 30. Sabala v Western Gillette, Inc. (1973, SD Tex) 362 F Supp 1142, 6 BNA
FEP 120, 6 CCh EPD 8863, affd in part and revd in part (CA5) 516 F2d 1251, 11 BNA
FEP Cas 98, 10 CCH EPD 10360, vacated on other grounds 431 US 951, 53 L Ed 2d

Footnote 33. P.L. 102-166 302(1), 320(a), 321(a).
Footnote 34. P.L. 102-166 117(a).
Footnote 35. P.L. 102-166 117(b).
Footnote 38. H Rept No. 101-485, Part 3, 5/15/90, p. 36)
Footnote 41. Selection procedures and job requirements are more fully discussed in
316 et seq. and discussed in 412 et seq., respectively.
Footnote 42. Disparate treatment and disparate impact principles are discussed at
2703 et seq.
Footnote 43. Association against Discrimination in Employment, Inc. v Bridgeport
(1979, DC Conn) 479 F Supp 101, 20 BNA FEP Cas 985, 21 CCH EPD 30321, affd in
Cas 120, 28 CCH EPD 32465.
Footnote 44. As to affirmative action requirements applicable to government contractors,
see 619 et seq.
558 Recommendations; how to avoid hiring discrimination charges

View Entire Section
Some companies have turned to using what they consider the most satisfactory test of
applicants: the probationary or trial period. The possibility of engaging in discriminatory
hiring practices is greatly reduced if on-the-job observation is substituted for borderline
hiring decisions. Probationary periods are likely to be an effective safeguard against
hiring discrimination charges.
Applicants should be alerted to the probationary period by a prominent statement on the
application form, such as: "I understand that I will not be considered a regular employee
until I have satisfactorily completed the required probationary period of employment."
Applicants should be required to sign the statement.
The probationary period will provide a good evaluation of ability only if an employer
has realistic, documented performance standards and job descriptions against which to
evaluate candidates. Employers should review job descriptions (or prepare them if they
do not exist), making sure they include updated, realistic performance standards. Job
descriptions should be written, and thus subject to documentation, if enforcement
agencies wish to examine them. They should be specific for the employer's organization.
559 Settling a hiring case with the EEOC

View Entire Section
The EEOC will insist that a conciliation agreement settling recruiting and hiring charges
contain provisions requiring the employer to:
contact community minority and female organizations and educational institutions for
employment referrals;
advertise in communications media (such as newspapers, radio, and television) which
especially appeal to minorities and women;
establish an affirmative action file of minority and female applicants;
discontinue contacts that refer applicants on a discriminatory basis;
eliminate any discriminatory word-of-mouth recruiting;
eliminate specific factors which brought about discriminatory recruitment, and correct
any factors which may result in future discrimination;
develop and disseminate nondiscriminatory policy where discriminatory factors are
present in existing policy;
rectify and monitor through comprehensive reporting requirements applications
received subsequent to adoption of nondiscriminatory policy when discrimination occurs
because of deviation from existing policy;
immediately employ the charging party;
identify and compute appropriate backpay;
grant retroactive seniority and fringe benefits;
eliminate subjective factors determinative in granting or denying tenure;
establish goals and timetables which result in recruitment and hiring of sufficient
minority group members or women in each department, job, or pay category to equal
their percentage in the particular labor area or recruitment area. 45

In addition to the minimum remedies described above, the Commission will attempt to
insert other remedial provisions into the conciliation agreement. For example, the
Commission may try to impose a referral system under which community minority and
female organizations are supplied with referral forms by the EEOC. The forms would be
filled out and given to employment applicants each time an organization referred an
applicant to the employer. The applicant would be instructed to deliver the forms to the
employer when he or she applied. A copy of each completed form would be retained by
the referring organization, and a file containing those copies would be made available to
the EEOC for review of the system's operation. 46
Footnotes
Footnote 46. EEOC Compliance Manual 1112.4, 1112.5.
560 Judicial remedies for hiring discrimination

View Entire Section
A court can order an employer to offer to an applicant the position that the employer
denied the applicant for reasons violative of Title VII. 47
However, the Supreme
Court has ruled that such an order falls far short of a "make whole" remedy, and that a
concomitant award of the seniority credit that a victim of discrimination presumably
would have earned except for the employer's discriminatory hiring seems necessary
absent justification for denying that relief. 48
In addition, courts may require the bumping of employees who have benefited directly
from repeated discrimination against prevailing plaintiffs to make such plaintiffs whole.
Bumping is an extraordinary remedy to be used sparingly with careful balancing of the
equities and consideration of the effects on the bumped employees. The factors to be
considered are: (1) the defendant's repetition of discrimination against the plaintiff; (2)
the defendant's recalcitrance; (3) the uniqueness of the position in controversy; and (4)
the defendant's ability to minimize the harm suffered by the bumped employee. 49
Although failure to have applied for a job is not an inexorable bar to an award of
retroactive seniority, a nonapplicant who wants retroactive seniority must undertake the
difficult task of proving that he or she was deterred from applying for the job by the
employer's discriminatory practices and reputation. 50
An undocumented alien, who is refused employment in violation of Title VII after the
Immigration Reform and Control Act (IRCA) took effect on November 6, 1986, is not
entitled to placement relief until he becomes authorized to work, because IRCA bars the
employer from hiring an undocumented alien even in the absence of discriminatory
animus. 51
Affirmative remedies imposed by courts in hiring cases have included orders:
requiring the use of numerical ratios to increase minority 52
representation in the employer's workforce;
and female 53
that an employer publicly recruit applicants for certain positions, including the use of an
advertising medium designed to reach blacks, and public notification that the company
was an equal opportunity employer; 54
that an employer post all vacancies to be filled by new employees at every place at
which job applications are taken (including rates of pay and job descriptions), and
publish an outline of the remedies ordered by the court in a local newspaper; 55
that certain members of the plaintiff class be given preferential consideration for hire
and damages in the form of backpay from the time they would have been employed but
for discrimination, and that the employer mail to each member of the preferred group a
letter clearly and succinctly describing the applicant's rights and how he might proceed to
enforce them; 56
to set aside other discriminatory regulations, such as differing height requirements for
men and women or rules against wearing eyeglasses which are applicable to women only;
57
that a female plaintiff who was unlawfully not considered for a permanent appointment
be hired for the first vacancy occurring after she regained civil service eligibility for the
position originally sought, provided that she was not outranked by three women who
were on the eligibility list before the plaintiff first became eligible. 58
An employer has also been enjoined from giving promotional exams to persons hired
during a period when the employer's hiring practices were unlawfully discriminatory
until such time as persons hired pursuant to a court-ordered remedy have also become
qualified to take such exams, where the employer had engaged in lengthy and egregious
discrimination. 59
However, a district court abused its discretion by awarding a Title VII plaintiff relief that
was too broad when it awarded him a tenured position, rather than the probationary
position for which he had applied. 60
Footnotes
Footnote 47. Kamberos v GTE Automatic Electric, Inc. (1979, CA7) 603 F2d 598, 20
S Ct 612, 27 BNA FEP Cas 221, 27 CCH EPD 32229; Schick v Bronstein (1978, SD
NY) 447 F Supp 333, 19 BNA FEP Cas 1246, 16 CCH EPD 8247.
Footnote 48. Franks v Bowman Transp. Co. (1976) 424 US 747, 47 L Ed 2d 444, 96 S
Ct 1251, 12 BNA FEP Cas 549, 11 CCH EPD 10777, 21 FR Serv 2d 469.
Footnote 49. Walters v Atlanta (1986, CA11) 803 F2d 1135, 42 BNA FEP Cas 387, 42
CCH EPD 36715.
Footnote 50. International Brotherhood of Teamsters v United States (1977) 431 US 324,
Footnote 52. Morgan v Kerrigan (1976, CA1) 530 F2d 431, 14 BNA FEP Cas 312, 11
CCH EPD 10636, cert den 426 US 935, 49 L Ed 2d 386, 96 S Ct 2648, 96 S Ct 2649,
24 BNA FEP Cas 1515, 12 CCH EPD 10977; Vulcan Soc. of New York City Fire
Dept., Inc. v Civil Service Com. (1973, CA2) 490 F2d 387, 6 BNA FEP Cas 1045, 6
CCH EPD 8974; Arnold v Ballard (1976, CA6) 12 BNA FEP Cas 1613, 12 CCH EPD
11000; United States v Chicago (1977, CA7) 549 F2d 415, 14 BNA FEP Cas 462, 13
CCH EPD 11380, 40 ALR Fed 421; United States v Lee Way Motor Freight, Inc.
Footnote 53. Pennsylvania v Flaherty (1975, WD Pa) 404 F Supp 1022, 11 BNA FEP Cas
993, 11 CCH EPD 10624; Schaefer v Tannian (1974, DC Mich) 394 F Supp 1128, 8
Footnote 54. Franks v Bowman Transp. Co. (1974, CA5) 495 F2d 398, 8 BNA FEP Cas
66, 7 CCH EPD 9401, 8 CCH EPD 9580, 18 FR Serv 2d 1192, reh den (CA5) 500
F2d 1184 and revd in part on other grounds 424 US 747, 47 L Ed 2d 444, 96 S Ct 1251,
12 BNA FEP Cas 549, 11 CCH EPD 10777, 21 FR Serv 2d 469.
Footnote 55. Sledge v J. P. Stevens & Co. (1978, CA4) 585 F2d 625, 18 BNA FEP Cas
261, 18 CCH EPD 8657, 27 FR Serv 2d 137, cert den 440 US 981, 60 L Ed 2d 241,
Footnote 56. Diaz v Pan American World Airways, Inc. (1972, SD Fla) 346 F Supp 1301,
4 BNA FEP Cas 1211, 5 CCH EPD 8473, amd on other grounds (SD Fla) 348 F Supp
BNA FEP Cas 687, 9 BNA FEP Cas 916, 7 CCH EPD 9277, motion den (DC Dist Col)
Footnote 58. Dillon v Coles (1983, WD Pa) 35 BNA FEP Cas 1239, affd (CA3) 746 F2d
Cas 120, 28 CCH EPD 32465.
Footnote 60. Briseno v Central Technical Community College Area (1984, CA8) 739
2. Particular Practices [561-585]

a. Preemployment Inquiries [561-564]
561 An overview
View Entire Section
A preemployment inquiry is any question asked a job applicant, whether on a job
application, during an employment interview, or otherwise. Preemployment inquiries are
an area of some subtlety under job discrimination law. For example, asking someone to
state his name is in many cases tantamount to asking him to reveal his race or national
origin. While it is not unlawful to ask someone's name, it is unlawful to predicate
employment decisions on the basis of an applicant's race or national origin. Just because
a statute does not expressly prohibit preemployment inquiries, this does not mean that a
successful challenge to an employer's inquiry practices cannot be made. The EEOC has
expressly approved asking applicants to state their race, sex, and national origin only if
there is no discriminatory purpose, or the inquiries are made pursuant to the employer's
affirmative action plan. 61
Caution: The Americans with Disabilities Act (ADA) forbids employers from
asking applicants about disabilities. 62
Caution: Inquiries into an applicant's arrest record may be an automatic violation of

Title VII, according to the EEOC, because there is no permissible employer use for the
information. 63
Observation: Preemployment inquiries on job applications and at interviews are

useful tools to screen out unqualified applicants, but employers must always guard
against using questions that screen out a disproportionate number of protected group
members without a corresponding business necessity. Inquiries should be limited to
seeking information that is necessary to weigh an applicant's ability to perform the job,
and should be painstakingly examined for possible adverse impact.
Recommendation: Employers may legitimately seek information on race, sex,

religion, color, national origin, age, or any other prohibited factor in order to carry out
affirmative action programs. However, if the employer has no such purpose in seeking
sensitive information, then the questions may be used as evidence of discrimination.
Employers should review applications and interview checklists to purge problem
questions, such as those dealing with race, sex, citizenship, maiden name, church
affiliation, language skill, height and weight, and child care arrangements and
responsibilities (from females only).
Recommendation: If there is a legitimate business reason for gathering sensitive

information, such as health insurance information or social security information, then

the employer should make the inquiry after employment begins. Such records should
be kept separate from the employee's personnel file, to avoid the appearance of
discrimination on the basis of that information.
State aspects: Many state fair employment practice statutes specifically prohibit
preemployment inquiries which express any limitation or discrimination on the basis of
race, color, sex, religion, national origin, or other enumerated factors. Other state
statutes prohibit employers from making or keeping preemployment records of
applicants' race or color, religion, sex, handicap, age, or national origin, unless based
on a bona fide occupational qualification. 64
The question of employee privacy vis-...-vis preemployment inquiries is discussed
elsewhere. 65
Footnotes
Dec 6522.
Footnote 62. 564.
Footnote 64. For discussion of state fair employment practice statutes addressing
permissible preemployment inquiries, see Employment Coordinator EP-18,865 et seq.
562 Sex discrimination in preemployment inquiries

View Entire Section
According to the EEOC, any preemployment inquiry that expresses, directly or
indirectly, any limitation, specification, or discrimination as to sex is unlawful unless
based on a bona fide occupational qualification. 66 However, an employer may ask an
applicant whether he or she is a male or female and also may ask the applicant to choose
from among the titles Mr., Mrs., or Miss, as long as the inquiries are made in good faith
for a nondiscriminatory purpose. 67
The use of masculine pronouns by prospective employers in making inquiries to
employment agencies was held not, in itself, an unlawful sex specification indicating an
unwillingness to consider women for the job. 68
An employer may ask applicants questions about family circumstances, including

questions about child care, spouse's employment and supportiveness, and potential
conflicts between job and family responsibilities. Although questions should be asked of
all applicants that appear to present family circumstances that might affect their ability to
do a job, the fact that family-oriented questions are asked only of female applicants is not
in itself sufficient evidence to support a finding of intentional sex discrimination. The
plaintiff must prove that the employer based its decision on the sex stereotypes implicit in
the questions. For instance, a female applicant who was admittedly more qualified than
the applicant hired did not prove that the employer relied on the questions. The employer
claimed that it hired a less qualified applicant because he could more easily be molded to
the employer's way of doing things than the more qualified applicants, as well as because
other employees who were consulted knew and liked him, and he scored well on the
interviewer's list of subjective qualifications such as personality. The court characterized
these as legitimate nondiscriminatory reasons for action that were not shown by the
female applicant to be pretextual. 69
However, a hiring interview was plainly sexually
discriminatory when a female applicant was questioned about her plans for a family,
whether her husband would object if she were required to transport male veterans, and
told by one supervisor that he would not hire a woman who would get pregnant and quit.
70
Observation: Merely questioning an applicant about family planning or

responsibilities will not constitute sex discrimination if applicants of both sexes are
asked the same questions and the answers given by every applicant have the same
effect on job opportunities.
Recommendation: It is unlikely that all courts would take such a deferential view of
the employer's conduct in Bruno. 71 Employers should carefully train interviewers to
avoid the kinds of personal questions asked in Bruno, none of which are necessary to
ascertain information legitimately needed by employers. Interviewers should instead
state the hours of work and inquire whether the applicant can work those hours with
the degree of regularity and predictability required by the job. Interviewers should also
avoid reliance on good will felt by the interviewer or other employees toward an
applicant. Interviewers typically feel more comfortable with applicants of their own
race and sex, but that is not a legitimate basis for a hiring decision. 72
Footnotes
Footnote 67. 29 CFR 1604.7; EEOC Decision No. 75-068 (1974) 21 BNA FEP Cas
Footnote 68. Kaplowitz v University of Chicago (1974, ND Ill) 387 F Supp 42, 8 BNA
Footnote 69. Bruno v Crown Point (1991, CA7) 950 F2d 355, 57 BNA FEP Cas 623, 57
CCH EPD 41100, cert den (US) 120 L Ed 2d 874, 112 S Ct 2998, 58 BNA FEP Cas
1680.
For a discussion of sex discrimination concerning an employer's assumptions about

domestic responsibilities and availability for work, see 542 et seq.
Footnote 70. Barbano v Madison County (1988, ND NY) 47 BNA FEP Cas 1872, affd
(CA2) 922 F2d 139, 54 BNA FEP Cas 1287, 55 CCH EPD 40461.
Footnote 71. Bruno v Crown Point (1991, CA7) 950 F2d 355, 57 BNA FEP Cas 623, 57
1680.
Footnote 72. 583.
563 Age discrimination in preemployment inquiries

View Entire Section
Preemployment inquiries regarding an applicant's age may weigh against the employer if
not made in conformance with ADEA requirements, particularly when found in
combination with other evidence of discrimination. Special care should be taken so that
those who interview job applicants do not inadvertently stray into this area of inquiry.
For instance, where a defendant's interview notes contained notations of each candidate's
age and three interviewed were from 13 to 20 years younger than the plaintiff, a factual
question was raised as to whether age was a determining factor in the decision not to
rehire the plaintiff for a position that he had held before his resignation to receive cancer
therapy. 73
Since the receptionist is often the first person an applicant meets in the company, he or
she should be prohibited from doing any screening. Application forms should be offered
on request, regardless of whether there are job openings.
Inquiries about age should not be asked of older-looking applicants if they are not asked
of younger-looking ones. This is consistent with the general principle that an employer
may not require any information from a minority, female, or older applicant that it would
not seek from any other job candidate.
However, an inference of age discrimination was not appropriate when a 63- year old
candidate's age was discussed during a panel interview, since the age reference was only
relevant to a discussion of his eligibility to qualify for pension benefits. 74
Footnotes
Footnote 73. Reed v Signode Corp. (1986, DC Conn) 652 F Supp 129, 48 BNA FEP Cas
490, 44 CCH EPD 37401.
Footnote 74. White v Seventh Judicial Circuit of Maryland (1988, CA4) 846 F2d 75.
564 Inquiries about disabilities

View Entire Section
The Americans with Disabilities Act (ADA) forbids an employer to make
preemployment inquiries about whether an applicant has a disability, or about the nature
or extent of a disability. 75 However, preemployment inquiries about the ability of a
job applicant to perform job-related functions are permissible. 76 In this context, job
functions include both essential and marginal functions, although an employer may not
refuse to hire a disabled applicant who is only prevented from performing marginal
functions. 77
An inquiry into a job-related function must be narrowly tailored. In other words, the
employer may describe the job function and inquire whether or not the applicant can
perform it with or without a reasonable accommodation.
Illustration: If a job requires assembling small parts, an employer may ask whether
an applicant will be able to perform that function with or without a reasonable
accommodation. 78 The inquiry should not be phrased in terms of disability.
Illustration: An employer may ask whether an applicant has a driver's license if

driving is a job function, but not whether the applicant has a visual disability. Nor can
employers ask how often applicants will require leave for treatment, or how often they
expect to use leave as a result of a disability, or inquire about applicants' workers'
compensation history. 79
Preemployment inquiries regarding the performance of job-related functions may either
be made to all applicants in the same job category, or only to applicants whose known
disability may interfere with or prevent the performance of a job-related function.
Illustration: An employer may ask an individual with one leg who applies for a job
as a home washing machine repairman to demonstrate or explain how, with or without
a reasonable accommodation, he would transport himself and his tools up and down
stairs. However, the employer may not inquire as to the nature or severity of the
disability. Therefore, it cannot ask how the individual lost his leg or whether the loss is
indicative of an underlying impairment.
If an applicant's known disability will not interfere with the performance of a job-related
function, an employer may only request a description or demonstration of how the
applicant will perform the function if it routinely makes such requests of all applicants in
the same job category.
Illustration: An employer may not request an applicant with one leg to demonstrate
his ability to assemble small parts while seated at a table, if it does not routinely make
such requests to all applicants for those jobs. Also, an invitation to an applicant to
indicate whether and to what degree he has a disability, for purposes of taking
voluntary or mandatory affirmative or remedial action to correct the effects of past

discrimination 80 is allowed, if those purposes are clearly stated on a written
questionnaire or made clear orally. 81
A preemployment inquiry concerning disability is permissible under the ADA if it is
required by other federal laws or regulations. For example, preemployment inquiries
may be necessary to provide services under programs designed for veterans with
disabilities, veterans of the Vietnam War era, and people eligible for assistance under the
Job Training Partnership Act. 82
If an employer performs a background or reference check, it cannot ask any questions
that it could not ask an applicant directly. However, an employer may ask a previous
employer about accommodations made for an applicant with a known disability who has
indicated an ability to perform a job with reasonable accommodation. 83
Recommendation: Employers who use outside firms to do background or reference

checks should inform those firms of the duty to comply with the ADA. 84
These restrictions also apply under 504 of the Rehabilitation Act. 85
Medical examinations for applicants and employees and medical inquiries addressed to
employees are discussed elsewhere. 86
Footnotes
Footnote 75. 42 USCS 12112(c)(2)(A).
Footnote 76. 42 USCS 12112(c)(2)(B).
As to what is an essential job function, see 224.
As to reasonable accommodation under the ADA, generally, see 217 et seq.
Footnote 80. As to affirmative action plans, generally, see 600 et seq.
Footnote 81. H 29 CFR Part 1630, Appendix, 1630.14(a).
Employment Opportunity Commission, January 28, 1992, 5.5(c).
Employment Opportunity Commission, January 28, 1992, 5.5(g).

Employment Opportunity Commission, January 28, 1992, 5.5(g).
Footnote 85. 28 CFR 41.55; 28 CFR 42.513(a), 42.513(b).
b. Advertising Openings [564-568]
565 An overview
View Entire Section
Title VII makes it unlawful for an employer to publish an employment ad expressing a
preference for applicants based on race, color, religion, sex, or national origin. However,
a preference for religion, sex, or national origin may be specified if a BFOQ exists for the
particular position. 87
The Americans with Disabilities Act (ADA) prohibits disability discrimination with
regard to job application procedures. 88 Information about job openings should be
made available in accessible formats on request, although the ADA does not require
employers to provide alternate formats in advance of a request. 89
Recommendation: Job announcements, advertisements, and other recruitment

notices should include information on the essential functions of the job in question and
indicate that the employer does not discriminate on the basis of race, religion, color,
sex, age, national origin, or disability. 90
Section 504 of the Rehabilitation Act forbids handicap discrimination with respect to the
processing of job applications. 91
State aspects: Many state fair employment practices statutes also prohibit employers
from publishing discriminatory job advertisements. 92 However, a state statute
forbidding the publication of advertisements placed by jobseekers and identifying
themselves by race, religion, national origin, sex, or age has been held to violate a
jobseeker's rights under the Federal Constitution's First Amendment. 93
Footnotes
As to the existence of BFOQs based on such characteristics, see 272- , see 276
(sex), , see 285 (religion), and , see 286 (national origin).

Footnote 91. 28 CFR 41.42(c)(1).
Footnote 92. For discussion of such statutes, see Employment Coordinator EP-18,865
et seq.
Footnote 93.
Annotation: Identification of jobseeker by race, religion, national origin, sex, or age,
in "situation wanted" employment advertising as violation of state civil rights laws, 99
ALR3d 154.
566 Advertising methods

View Entire Section
Where and how an employment ad is printed can create job discrimination problems if
the availability of a position is not sufficiently made known to minorities. However,
publication in a widely-circulated professional journal at least two months before the
position in question was filled was held to be sufficient in one case. 94
Not advertising a particular vacancy, and consequently not considering a female
employee who wanted the job, did not violate Title VII, since the vacancy was filled by a
male who was transferred from another company division at a substantial cut in salary. 95
Footnotes
Footnote 94. Kureshy v City University of New York (1983, ED NY) 561 F Supp 1098,
567 Sex discrimination in job advertisements

View Entire Section

Under the OFCCP's Executive Order 11246 sex discrimination regulations,
advertisements in newspapers and other media for employment must not express a sex
preference, unless sex is a bona fide occupational qualification for the job. Both the
OFCCP 96 and the EEOC 97 consider the placement of classified advertisements in
newspaper columns headed "Male" or "Female" to be an expression of an illegal
preference, limitation, specification, or discrimination based on sex.
While sex-referent language used in job advertising, such as "patrolman" or "metermaid"
are suspect, they do not automatically constitute violations of Title VII. The EEOC will
not find a violation of Title VII if such terms are used in conjunction with prominent
language clearly indicating the employer's intent to consider candidates of both sexes.
However, use of the phrase "Equal Opportunity Employer," without more, is insufficient
to convey the employer's nondiscriminatory intent under those circumstances. The
Commission finds that that phrase can even be misunderstood to indicate that an
employer prefers members of one sex. 98
Recommendation: Employers should avoid advertising for jobs in any but

sex-neutral terms whenever possible, so as to eliminate the risk that an advertisement
will be read to suggest a preference for one sex. For example, since "waiter" is
commonly used to refer only to men, while "waitress" is use to refer to women,
employers should use the term "server" in an advertisement to include candidates of
both sexes.
Illegal sex discrimination has been found where help wanted ads:
stated, "WantedMen who desire to be truck operators"; 99
declared that "career-minded men will be interviewed"; 1
stated that the job was an excellent opportunity for an "attractive lady"; 2
requested a "personnel trainee" under the heading "Men's Employment Agencies"; 3
sought stewardesses in the Help WantedFemale column, although the ad declared that
the airline was an equal opportunity employer; 4
sought managers in "Male Help Wanted" columns and nonmanagerial employees in
female columns. 5
Observation: The Dictionary of Occupational Titles published by the Department of

Labor's Employment and Training Administration reflects revisions designed to
eliminate sex-referent language from job titles that may be helpful in designing job
descriptions and ads.
State aspects: State statutes or regulations prohibiting sex discrimination in

employment advertising have also been construed as forbidding advertising in
newspaper help-wanted columns titled "Help WantedMale, and "Help

WantedFemale," or "JobsFemale Interest" and "JobsMale Interest." 6
Footnotes
Footnote 96. 41 CFR 60-20.2(b).
Footnote 2. EEOC Decision, No. YNO 9-082 (1969) CCH EEOC Dec 6005.
6298.
Footnote 4. Hailes v United Air Lines (1972, CA5) 464 F2d 1006, 4 BNA FEP Cas 1022,
4 CCH EPD 7908.
Footnote 5. Capaci v Katz & Besthoff, Inc. (1983, CA5) 711 F2d 647, 32 BNA FEP Cas
961.
Footnote 6.
Annotation: Application of state law to sex discrimination in employment advertising,
66 ALR3d 1237.
568 Age discrimination in job advertisements

View Entire Section
An employer may not print or publish, or cause to be printed or published, any notice or
advertisement relating to employment by that employer indicating any preference,
limitation, specification, or discrimination based on age. Similarly, a labor organization
may not indicate age preferences in advertisements for membership or classification or
referral for employment, and an employment agency may not indicate such preferences in
advertisements relating to any classification or referral for employment. 7
An advertisement requesting that applicants state their age is not, in itself, a violation of
the ADEA. However, because such requests may tend to deter older applicants, they may
be closely scrutinized to insure that the request is for a permissible purpose. 8
Unless one of the ADEA's exceptions applies, 9 job advertisements violate the Act
when, in referring to specific job opening, they combine a phrase implying youth with a
phrase specifying an educational requirement, such as "college student" or "recent
college graduate," 10 "accountant: new grad," 11 "recent graduates," 12 "mgr trainee:
new grad." 13
Recommendation: The ease with which government investigators can detect

discriminatory help-wanted ads makes employers particularly vulnerable to this
violation. All of an employer's advertising, and all advertising prepared by employment
agencies for its job openings, should be checked to make sure it is not illegal under the
Act.
Footnotes
79 ALR Fed 373.
Footnote 9. Exceptions to the ADEA are discussed at 277 et seq. and at discussed
at 171 et seq.
Footnote 11. Brennan v C/M Mobile, Inc. (1974, DC Ala) 8 CCH EPD 9532, 8 BNA
FEP Cas 551.
Footnote 12. Brennan v Hughes Personnel, Inc. (1974, DC Ky) 8 CCH EPD 9571, amd
on other grounds (DC Ky) 8 CCH EPD 9679.
Footnote 13. Brennan v C/M Mobile, Inc. (1974, DC Ala) 8 CCH EPD 9532, 8 BNA
FEP Cas 551.
c. Recruiting Methods [569-573]
569 An overview
View Entire Section
Title VII requires only that an employer provide equal job opportunities regardless of an
applicant's race, color, religion, sex, or national origin. It does not require an employer to
consider whether protected group members are proportionately represented in the
employer's workforce in comparison with their representation in the community. 14
Thus, Title VII does not impose a duty to adopt recruiting procedures that maximize the
hiring of minority employees. 15
For example, an employer's failure to tell black
applicants for jobs in a predominantly black department about work available in other
departments did not violate Title VII, where the employer treated all applicants, black
and white, alike, and where the employer's workforce in the other departments was not
statistically imbalanced by race. 16
An employer's recruiting practices also were not racially discriminatory where job
openings were always listed with the state employment commission, were occasionally
advertised in local newspapers, and a large number of blacks applied for positions with
the defendant. 17
A disproportionately low number of minority applicants compared with the minority
population in the relevant labor market may give rise to a disparate-impact challenge to
an employer's recruiting procedures. 18 Furthermore, a failure to treat minority and
women applicants in the same way as white male applicants may prompt a disparate
treatment case.
Recruiting procedures have been held to violate Title VII where:
the employer gave false, misleading, or incomplete information to blacks, and failed or
refused to inform blacks of the procedures and opportunities for obtaining employment;
19
the employer recruited for skilled personnel at all-white educational institutions only; 20
a television station recruited its announcers and reporters primarily from sister radio
stations that employed virtually no women in those positions. 21
Executive Order 11246's equal opportunity clause 22 obligates the contractor to state in
all solicitations or advertisements for employees that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex, or national
origin. These requirements are satisfied whenever the prime contractor or subcontractor:
(1) states expressly in the solicitations or advertising that all qualified applicants will
receive consideration for employment without regard to race, color, religion, sex, or
national origin; (2) uses display or other advertising that includes an appropriate insignia
prescribed by the Director of the OFCCP; (3) uses a single advertisement grouped with
other advertisements under a caption which clearly states that all employers in the group
assure all qualified applicants equal consideration for employment without regard to race,
color, religion, sex, or national origin; or (4) uses a single advertisement in which
appears, in clearly distinguishable type, the phrase "an equal opportunity employer."
Unauthorized use or duplication of the insignia referred to in (2) above would be subject
to the criminal penalties prescribed in 18 USCS 701. 23
Footnotes
Footnote 14. 42 USCS 2000e-2(j).

Footnote 15. Furnco Constr. Corp. v Waters (1978) 438 US 567, 57 L Ed 2d 957, 98 S
Footnote 16. Lewis v Tobacco Workers' International Union (1978, CA4) 577 F2d 1135,
17 BNA FEP Cas 622, 16 CCH EPD 8310, cert den 439 US 1089, 59 L Ed 2d 56, 99
S Ct 871, 18 BNA FEP Cas 1430, 18 CCH EPD 8716A.
Footnote 17. Smith v Western Electric Co. (1985, CA5) 770 F2d 520, 38 BNA FEP Cas
1605, 38 CCH EPD 35506.
Footnote 18.
Forms: Allegations in complaintRacial discrimination by employerFailure to recruit
[42 USCS 2000e-2(a); FRCP 8(a)]. 12 Federal Procedural Forms, L Ed, Job
Footnote 19. U.S. v Central Motor Lines, Inc. (1971, WD NC) 338 F Supp 532, 4 BNA
Footnote 20. U.S. v Georgia Power Co. (1973, CA5) 474 F2d 906, 5 BNA FEP Cas 587,
5 CCH EPD 8460; Domingo v New England Fish Co. (1977, WD Wash) 445 F Supp
Footnote 21. EEOC v New York Times Broadcasting Service, Inc. (1976, CA6) 542 F2d
Footnote 22. 22.
Footnote 23. 41 CFR 60- 1.41.
570 Sex discrimination in recruiting

View Entire Section
Under the OFCCP's Executive Order 11246 sex discrimination regulations, employers
must recruit employees of both sexes for all jobs, unless sex is a bona fide occupational
qualification. 24 The regulations also require employers to take affirmative action to
recruit women to apply for those jobs from which they were previously excluded. 25
This can be done by various methods, such as including women's colleges in recruiting
trips where graduates with skills desired by the employer can be found, contacting female
students of coeducational institutions, and designing advertisements to indicate that
women will be considered equally with men for jobs. 26
Footnotes
Footnote 24. 41 CFR 60- 20.2(a).

Footnote 25. 41 CFR 60- 20.6(a).
Footnote 26. 41 CFR 60- 20.6(a) (note).
571 Religious or national origin discrimination in recruiting

View Entire Section
Go to Supplement
Under the OFCCP's religious/national origin discrimination guidelines, employers are
required to review their employment practices to determine whether members of the
various religious and/or ethnic groups are receiving fair consideration for job
opportunities, and special attention is to be directed toward executive and
middle-management levels, where employment problems relating to religion and national
origin are most likely to occur. Based on the findings of such reviews, employers must
undertake appropriate outreach and positive recruitment activities to remedy existing
deficiencies. These activities could include:
(1) internal communication of the employer's obligation to provide equal employment
opportunity without regard to religion or national origin in such a manner as to foster
understanding, acceptance, and support among the employer's executive, management,
supervisory, and other employees and to encourage those persons to take the necessary
action to aid the employer in meeting this obligation;
(2) development of reasonable internal procedures to insure that the employer's
obligation to provide equal employment opportunity without regard to religion or
national origin is being fully implemented;
(3) periodically informing all employees of the employer's commitment to equal
employment opportunity for all persons, without regard to religion or national origin;
(4) enlisting the assistance and support of all recruitment sources (including employment
agencies, college placement directors, and business associates) for the employer's
commitment to provide equal employment opportunity without regard to religion or
national origin;
(5) reviewing employment records to determine the availability of promotable and
transferable members of various religious and ethnic groups;
(6) establishing meaningful contacts with religious and ethnic organizations and leaders
for advice, technical assistance, and referral of potential employees;
(7) engaging in significant recruiting activities at educational institutions with substantial
enrollments of students from various religious and ethnic groups;
(8) using the religious and ethnic media for institutional and employment advertising.
The OFCCP does not require that employers undertake all of the listed activities. The
scope of the employer's efforts depends on all the circumstances, including the nature and
extent of its deficiencies and its size and resources. 27
571 ----Religious or national origin discrimination in recruiting [SUPPLEMENT]
Footnotes
Footnote 27. 41 CFR 60-50.2(b).
572 Word-of-mouth recruiting

View Entire Section
Go to Supplement
While word-of-mouth recruiting is not automatically discriminatory under Title VII, 28
the use of referrals from current employees as a source of new hires may violate Title VII
if the employer's workforce does not reflect the racial, ethnic, or sexual composition of
the relevant labor market, because such referrals tend to perpetuate a discriminatory
pattern of employment. 29
The touchstone is the make-up of the employer's workforce; i.e., the disseminators of job
availability information. Word-of-mouth recruiting did not constitute unlawful
discrimination against blacks where the employer's workforce was predominantly black
and the practice did not have an adverse impact on black employment. 30 However,
word-of-mouth recruiting fostered illegal discrimination against:
blacks, where the employer had a substantially all-white workforce; 31
nonwhites, for municipal vacancies in communities with no black residents, where the
villages had durational residency requirements; 32
whites, where the employer's workforce was predominantly black; 33
women, where the employer historically classified employees on the basis of sex, 34
and where 86% of new hires referred by current employees were men; 35
adherents of other denominations, where 93% of the employer's workforce was either
Amish or Mennonite. 36
Likewise, an employer's reliance on and encouragement of a word-of-mouth recruiting

policy for clerical employees where its work force was almost exclusively white, could
not be justified by cost or as an inevitable consequence beyond the employer's control. 37
Furthermore, an employer with an all-white workforce that hired some inexperienced
white applicants for unskilled jobs, while blacks were required to undergo a burdensome
application process through a referral service, had to address the prima facie case of
intentional hiring discrimination that resulted. 38
Also, in the context of a predominantly white work force, nepotism in hiring decisions, in
conjunction with an employer's practice of posting vacancies in each facility without
advertising them, served to freeze the effects of past racial discrimination. 39
However, an employee referral system which tends to perpetuate a low percentage of
minority employees is illegal only if it is the primary means for recruiting applicants.
Such a system survived Title VII challenge where it was an insubstantial element in the
employer's recruiting process compared with the use of the state employment agency,
newspaper advertisements, and walk-in job applications. 40 Furthermore, the practice of
hiring applicants recommended by a male plant manager did not violate the sex
discrimination provisions of Title VII, where there was no evidence that the practice was
followed to any significant extent or that it was motivated by sexually discriminatory
considerations. 41
572 ----Word-of-mouth recruiting [SUPPLEMENT]
Case authorities:
Employer company, owned by Korean immigrant, that provides janitorial and cleaning
services does not discriminate in favor of persons of Korean origin in violation of Title
VII by relying mainly on word of mouth to obtain new employees; in disparate treatment
case, word of mouth recruitment does not give rise to inference of intentional
discrimination, particularly where such is cheapest and most efficient method of
recruitment, notwithstanding its discriminatory impact. EEOC v Consolidated Service
Systems (1993, CA7 Ill) 61 BNA FEP Cas 327, 61 CCH EPD 42086.
Footnotes
Footnote 28. Markey v Tenneco Oil Co. (1977, DC La) 439 F Supp 219, 17 BNA FEP
Cas 1807, affd in part and revd in part on other grounds (CA5) 635 F2d 497, 24 BNA
FEP Cas 1675, 25 CCH EPD 31541.
Footnote 29. United States v Georgia Power Co. (1973, CA5) 474 F2d 906, 5 BNA FEP
Cas 587, 5 CCH EPD 8460; Reed v Arlington Hotel Co. (1973, CA8) 476 F2d 721, 5
BNA FEP Cas 789, 5 CCH EPD 8521, 17 FR Serv 2d 122, cert den 414 US 854, 38 L
Ed 2d 103, 94 S Ct 153, 6 BNA FEP Cas 607, 6 CCH EPD 8861; EEOC Decision No.
71-1325 (1971) CCH EEOC Dec 6214; EEOC Decision No. 77-27 (1978) 21 BNA FEP
Cas 1783; CCH EEOC Dec 6577.
Footnote 30. Williams v Yazoo Valley- Minter City Oil Mill, Inc. (1978, ND Miss) 469 F
Footnote 31. Clark v American Marine Corp. (1969, DC La) 304 F Supp 603, 2 BNA
FEP Cas 198, 2 CCH EPD 10084, 61 CCH LC 9320; EEOC Decision No. 70-158
(1969) 2 BNA FEP Cas 238, CCH EEOC Dec 6070; EEOC Decision No. 70-422
(1970) 2 BNA FEP Cas 460, CCH EEOC Dec 6127; EEOC Decision No. 71-359
(1970) 2 BNA FEP Cas 1104, CCH EEOC Dec 6172.
Footnote 32. U.S. v Elmwood Park (1987, ND Ill) 43 BNA FEP Cas 995, 42 CCH EPD
36962.
6404.
Footnote 34. Nance v Union Carbide Corp., Consumer Products Div. (1975, DC NC) 397
F Supp 436, 13 BNA FEP Cas 211, 9 CCH EPD 10114, cause remanded (CA4) 540
F2d 718, 13 BNA FEP Cas 231, 13 BNA FEP Cas 1810, 12 CCH EPD 11106, 22 FR
Serv 2d 247, vacated on other grounds 431 US 952, 53 L Ed 2d 268, 97 S Ct 2671, 14
Footnote 36. EEOC Decision No. 76-95 (2/18/76) CCH EEOC Dec 6672.
Footnote 37. EEOC v Andrew Corp. (1989, ND Ill) 51 CCH EPD 39364.
Footnote 38. EEOC v Metal Service Co. (1990, CA3) 892 F2d 341, 51 BNA FEP Cas
1238, 52 CCH EPD 39545.
Footnote 39. Thomas v Washington County School Bd. (1990, CA4) 915 F2d 922, 53
As to the permissibility of hiring decisions based on a policy of nepotism or
antinepotism, generally, see 534 et seq.
Footnote 40. Taylor v Safeway Stores, Inc. (1973, DC Colo) 365 F Supp 468, 6 BNA
Footnote 41. Ross v Jones & Laughlin Steel Corp. (1979, WD Pa) 468 F Supp 715, 19
573 Using an employment agency for recruiting

View Entire Section
An employer may be held liable for the discriminatory practices of employment agencies
and other recruiting entities whose services it utilizes. 42 When an employer uses an
employment agency to recruit, screen, or refer applicants, both the employer and the
agency may be liable for violations of the ADA. 43 To avoid such liability, the employer
should:
notify employment agencies and other sources with whom the employer deals each time
there is an opening that the position is open to applicants regardless of their race, color,
religion, sex, national origin, disability, or age;
make sure that employment agencies are not discriminating, either deliberately or
unintentionally, on the basis of race, age, etc.
Recommendation: Employers should tell agencies that they are obligated to comply
with the ADA, emphasizing qualification standards, preemployment inquiries, and
reasonable accommodation. In addition, contracts with employment agencies should
include a requirement that the agency carry out the contract in compliance with the
ADA, as well as with other applicable federal and state discrimination laws. 44
Footnotes
Footnote 42. 311.
d. Job Applications [574-597]
574 Requiring a completed job application

View Entire Section
Requiring that job applicants fill out application forms is permissible as long as the
practice is not used unfairly against minority applicants. An employer's denial of a job to
a black applicant for refusing to fill out an employment application did not violate Title
VII, even though the applicant claimed that the employer's agent erroneously told him
there were no job openings. The court said that the practice of requiring a completed
employment application was a fair and reasonable business practice of neutral and
nondiscriminatory impact. 45
However, the fact that another applicant never filled out an application form did not
prevent her from claiming a Title VII violation, where there were 12 steps in the selection
process, the first step was a preliminary interview and the second step was the
completion of the employment application, and the plaintiff had completed the
preliminary interview. 46
Footnotes
Footnote 45. Armstrong v Ryder Truck Rental, Inc. (1978, DC Ariz) 448 F Supp 185, 17
Footnote 46. Consor v Occidental Life Ins. Co. (1979, ND Tex) 469 F Supp 1110, 19
BNA FEP Cas 327, 19 CCH EPD 9162, 27 FR Serv 2d 1016, 28 FR Serv 2d 204.
575 Prohibited and permissible inquiries on applications under the ADA

View Entire Section
The Americans with Disabilities Act forbids an employer to use an application form that
lists potentially disabling impairments, or to require an applicant to identify the
impairments he may have. Furthermore, the form may not ask the circumstances under
which an applicant became disabled or the prognosis of the individual's disability. Nor
may it ask how often the individual will need leave as a result of any disabling condition.
However, an application may state attendance requirements and ask whether the
applicant can meet them, or may inquire whether individuals with disabilties will need a
reasonable accommodation in order to take a preemployment test. 47
Footnotes
For discussion of modifications to application procedures under the Americans With
Disabilities Act, see 584.
576 Reapplication requirements

View Entire Section
In some instances, employers will require applicants to reapply after a certain period if
favorable action has not been taken on their previous applications. The validity of such a
requirement depends on how it is applied to individual applicants.
A requirement that job applications be renewed every 30 days to remain in continuous

effect did not violate Title VII, where there was no evidence of discriminatory treatment
against blacks. 48 An employer's one-year reapplication policy also was not
discriminatory, where it was applied evenhandedly without regard to race and the
employer extended the plaintiff's application's validity because he previously had filed an
EEOC charge. The employer was under no obligation to inform applicants when their
applications lapsed, and the applicant was informed when he visited the plant that his
application was then out-of-date. 49
But a 90-day reapplication rule was racially discriminatory where, in combination with
the employer's failure to provide meaningful notice of the rule to black applicants, it
operated to thwart blacks in their attempts to secure employment. 50 Furthermore, an
employer's failure to reconsider a five-year-old application was unlawful, where the
employer refused to reconsider the application after the company eliminated its
discriminatory height requirement, which was a factor that excluded the applicant from a
job years earlier. 51
Footnotes
CCH EPD 11285, 22 FR Serv 2d 834.
Footnote 49. Williams v Hevi-Duty Electric Co. (1987, CA6) 819 F2d 620, 43 BNA FEP
49 BNA FEP Cas 848.
Footnote 50. Neely v Grenada (1977, DC Miss) 438 F Supp 390, 15 BNA FEP Cas 1717,
15 CCH EPD 8005.
Footnote 51. Schick v Bronstein (1978, DC NY) 447 F Supp 333, 19 BNA FEP Cas
1246, 16 CCH EPD 8247.
577 Inconsistencies or irregularities in application processing

View Entire Section
Job application procedures are subject to Title VII challenge if they are not applied
equally to all applicants. 52 For example, an employer violated Title VII because it
instituted a centralized application procedure, but failed to apply it to both black and
white applicants consistently. 53 Furthermore, unlawful sex discrimination resulted from
the inconsistent use of application procedures, where, contrary to the demands made of
female applicants, one selected male applicant was not required to submit a job
application or writing sample, and another male candidate was allowed to submit an
application 11 days after the stated deadline. 54
Irregular application processing methods can also be used to demonstrate job bias. 55
For instance, a large number of irregularities in processing the job application of a white
female compared with a black male, such as the fact that the man was the only person
interviewed, the man's application was not completed until after the announced closing
date for applications, and the man was selected even before his application was
completed, indicated race and sex bias against the woman. 56 Similarly, a decision to
reopen an application period to gather more candidates for a particular position violated
Title VII, where a qualified woman had applied in a timely manner but selecting officials
used the new period to encourage the application of a better-qualified male applicant. 57
Footnotes
6494; EEOC Decision No. 78-22 (1978) 19 BNA FEP Cas 901, CCH EEOC Dec
6584.
Footnote 53. Neely v Grenada (1977, DC Miss) 438 F Supp 390, 15 BNA FEP Cas 1717,
15 CCH EPD 8005, remanded (CA5) 624 F2d 547, 23 BNA FEP Cas 1533, 24 CCH
EPD 31190.
6584.
Footnote 55. Schwartz v Florida (1980, ND Fla) 494 F Supp 574, 23 BNA FEP Cas 203;
Lindsey v Angelica Corp. (1981, ED Mo) 508 F Supp 363, 25 BNA FEP Cas 402.
Footnote 56. Schwartz v Florida (1980, ND Fla) 494 F Supp 574, 23 BNA FEP Cas 203.
Footnote 57. Kennedy v Landon (1979, CA4) 598 F2d 337, 19 BNA FEP Cas 1335, 19
CCH EPD 9263.
578 Basing adverse employment decision on application falsification

View Entire Section
Rejecting job applicants because they have falsified their employment application is, for
the most part, an unassailable employment practice. While refusal of employment
because an applicant has falsified arrest record information may be a questionable
practice, 58 employers that evenhandedly and consistently insist on truthful answers to
employment application questions are on firm ground. Thus, the disqualification of a
black job applicant because he falsified his name and employment history on a job
application form was a legitimate nondiscriminatory reason for the rejection. 59
Similarly the discharge of black employees who falsified job credentials 60 and work
experience 61 on their applications has survived Title VII challenges.
Also, an employer may treat an employee who has intentionally made false statements on
an application more harshly than one who has unintentionally made an error. Thus,
where a black applicant made material false statements on his application regarding his
past employment, he was not discriminated against when he was not hired. He was not
similarly situated to four white applicants who were hired, although they had made some
minor errors on their application forms. 62
Recommendation: Employment applications should bear a legend stating that

falsification will be cause for rejection or immediate discharge on discovery. Barring
discriminatory application of the rule, such a policy is practically invulnerable to Title
VII challenge. While the EEOC may hold that employment consequences based on
falsification of particular questions, such as arrest record inquiries, have a disparate
impact against minority group members, courts are likely to to reject such derivative
disparate impact and require a showing that protected group members are more likely
to lie on employment applications than others.
Footnotes
Footnote 58. 515.
Footnote 59. Lee v National Can Corp. (1983, CA7) 699 F2d 932, 31 BNA FEP Cas 13,
31 CCH EPD 33327.
Footnote 60. Williams v Boorstin (1980) 213 App DC 345, 663 F2d 109, 23 BNA FEP
Footnote 61. Green v United States Steel Corp. (1979, ED Pa) 481 F Supp 295, 20 BNA
FEP Cas 1248, 20 CCH EPD 30256, 28 FR Serv 2d 291.
Footnote 62. McGee v Randall Div. of Textron, Inc. (1988, CA5) 837 F2d 1365, 46 BNA
FEP Cas 1349, 46 CCH EPD 37873, cert den 487 US 1209, 101 L Ed 2d 893, 108 S
Ct 2856, 47 BNA FEP Cas 176.
579 Age discrimination in application forms

View Entire Section
Go to Supplement
According to the EEOC, a request on an application form for information such as the date
of birth or age of the applicant is not, by itself, a violation of the ADEA. However,
because such a request can have the effect of deterring older applicants, or may otherwise
indicate discrimination based on age, applications may be closely scrutinized to make
sure that such requests are for a permissible purpose. Thus, if an application form asks
for the applicant's age or date of birth, it should alert the applicant that the employer's
purpose is not proscribed by the ADEA. This can be done by adding a legend to the
form, "The Age Discrimination in Employment Act of 1967 prohibits discrimination on

the basis of age with respect to individuals who are at least 40 years of age," or by other
means. 63
579 ----Age discrimination in application forms [SUPPLEMENT]
Case authorities:
In absence of stipulation of issue to be resolved, arbitrator's formulation of issue is
accorded substantial deference. AFGE, Local 1840 & Dept. of the Air Force, 12th
MSSQ/MSCE (1994) 48 FLRA No. 146.
Footnotes
79 ALR Fed 373.
e. Interviews [580-585]
580 Necessity of job interviews

View Entire Section
Go to Supplement
Title VII does not require employers to interview all applicants for a job. 64 However,
granting an interview violates the statute if it results in unfairness to a member of a
protected class. The denial of an interview on the basis of sex to a female applicant
violated Title VII even though the employer ultimately awarded the position to a male
applicant who was better qualified. 65 Likewise, not interviewing a black applicant for a
clerical position violated the act, where the employer ultimately hired two white
applicants who had neither education nor experience equal to the black applicant's. 66
However, not interviewing a female applicant along with 24 other applicants did not
violate the statute, when the employer already knew the plaintiff's qualifications by virtue
of her previous employment as a substitute employee. 67
Although failure to interview does not by itself create a Title VII claim, it may have
independent significance in showing that an employer's failure- to-hire justification is
pretextual. 68 On the other hand, the offer of an interview which was declined has been
considered evidence indicating no discrimination. 69
580 ----Necessity of job interviews [SUPPLEMENT]

Practice Aids: Understanding mixed motives claims under the Civil Rights Act of
1991: An analysis of intentional discrimination claims based on sex-stereotyped
interview questions, 91 Mich LR 1824 (1993).
Footnotes
Footnote 64. Wheeler v Columbus (1982, CA5) 686 F2d 1144, 29 BNA FEP Cas 1699,
30 CCH EPD 33122.
Footnote 65. Gillin v Federal Paper Board Co. (1973, CA2) 479 F2d 97, 5 BNA FEP Cas
1094, 5 CCH EPD 8613, on remand (DC Conn) 12 BNA FEP Cas 1329, 12 CCH EPD
11025.
Footnote 66. Jones v First Federal Sav. & Loan Asso. (1982, MD NC) 546 F Supp 762.
Footnote 67. Flucker v Fox Chapel Area School Dist. (1978, WD Pa) 461 F Supp 1203,
Footnote 68. Wheeler v Columbus (1982, CA5) 686 F2d 1144, 29 BNA FEP Cas 1699,
30 CCH EPD 33122.
Footnote 69. Wilson v Legal Assistance of North Dakota (1982, CA8) 669 F2d 562, 27
581 Oral interviews for registered apprenticeship programs

View Entire Section
Under the Labor Department's regulations governing selection for registered
apprenticeship programs, 70 oral interviews cannot be used as a qualification standard
for admission into an eligibility pool. However, applicants who have been placed in the
pool, may be required to submit to an oral interview before selection. Interviews must be
limited to objective questions required to determine the fitness of applicants to enter the
apprenticeship program, not including questions relating to qualifications previously
determined in gaining entrance to the pool. When an oral interview is used, each
interviewer must record the questions and the general nature of the answers, and prepare
a summary of any conclusions. 71
Where interviews are used adequate records must be kept, including a brief summary of
each interview and the conclusions on each of the specific factors, such as motivation,
ambition, and willingness to accept direction, which are part of the total judgment. 72
Footnotes
Footnote 71. 29 CFR 30.5(b)(1).
Footnote 72. 29 CFR 30.5(b)(4).
582 Casual and unscored job interviews

View Entire Section
Unscored or casual interviews may have the effect of discriminating against minority
groups. Where there are statistics suggesting the possibility of discriminationsuch as
differential rates of applicant rejection from various minority and nonminority or sex
groups, or disproportionate representation of groups among present employeesthe
employer may be called upon to present evidence concerning the validity of unscored
procedures. 73 An employer's use of an oral interview to screen applicants violated
Title VII's sex discrimination prohibition, because the interview had a disparate impact
on female applicants. The interview related only to the applicant's performance during a
training period and not to actual job performance, and the grading of the interviews was
subject to errors resulting from lack of standardized conditions, rater bias, and lack of
objective criteria to judge the answers. 74
However, in another case it was held that the existence of subjective oral interviews did
not render the process discriminatory per se, because the interviews involved meaningful,
known objective standards. 75
Observation: The question of subjectivity in the selection process is more

complicated than the cases considering unstructured job interviews may indicate. 76
Footnotes
901, CCH EEOC Decisions 6584.
Footnote 74. Harless v Duck (1980, CA6) 619 F2d 611, 22 BNA FEP Cas 1073, 22 CCH
1668, 24 CCH EPD 31256.
449 US 913, 66 L Ed 2d 141, 101 S Ct 288.
Footnote 76. See 415 et seq. for a full discussion.
583 Using majority group interviewers

View Entire Section
That an employer's staff of job interviewers is all white may be a factor indicating
discrimination in hiring, 77 particularly where the employer has made no attempt to
determine whether its white interviewers were racially prejudiced or to correct prejudice
if it existed. 78
Recommendation: If the relevant labor market consists to a significant degree of

non- English-speaking persons, employers should consider developing the language
facility of personnel interviewers to remove language as an impediment to employment
and preclude possible national-origin discrimination charges.
Footnotes
Footnote 77. Equal Employment Opportunity Com. v American Nat. Bank (1981, CA4)
652 F2d 1176, 26 BNA FEP Cas 472, 26 CCH EPD 31920, reh den (CA4) 680 F2d
965, 30 BNA FEP Cas 906, 29 CCH EPD 32720 and cert den (US) 74 L Ed 2d 186,
103 S Ct 235, 30 BNA FEP Cas 960, 30 CCH EPD 33080; EEOC Decision No. 70-158
(1969), CCH EEOC Decisions 6070, 2 BNA FEP Cas 238.
Footnote 78. Stamps v Detroit Edison Co. (1973, DC Mich) 365 F Supp 87, 6 BNA FEP
Cas 612, 6 CCH EPD 8890, corrected (ED Mich) 6 BNA FEP Cas 1326, 7 CCH EPD
9250 and revd on other grounds (CA6) 515 F2d 301, 10 BNA FEP Cas 239, 10 BNA
US 951, 53 L Ed 2d 267, 97 S Ct 2668, 97 S Ct 2669, 14 BNA FEP Cas 1686, 14 CCH
EPD 7580.
584 Accommodation for mental and physical disabilities in interviews

View Entire Section
Under the Americans with Disabilities Act, employers must provide accommodation to
enable applicants to have equal opportunity in the application process.
Illustration: Accommodations may include holding the interview in an accessible

location, providing an interpreter for a hearing-impaired applicant, or providing a
reader for a vision-impaired applicant. 79
Footnotes
Employment Opportunity Commission, January 28, 1992, 5.5(f).
585 Administering polygraphs and other lie detector tests

View Entire Section
The Employee Polygraph Protection Act of 1988 (EPPA) forbids most private employers
from using polygraph and other types of lie detector tests as a preemployment screening
device and strictly regulates intrusions on worker privacy by the use of polygraph tests on
current employees. 80 The statute also permits states to enact more restrictive laws
governing the use of such devices. 81
Under Title VII, employers' use of polygraph tests to assure employee honesty has been
approved where the tests are not shown to have been applied unequally, 82 or to have a
disproportionate impact on minorities. 83 For example, a bank administering polygraph
tests to seven employees, six minorities and one white employee, during an investigation
of missing funds did not violate Title VII or 42 USCS 1981 by discriminatorily
selecting individuals to be tested, since the official who selected them did not know their
race, bank records did not contain race information, the official conducting the
investigation did not learn of the employee's race until she arrived for the interview, and
the decision of whom to test was based chiefly on each person's potential access to the
missing funds. Furthermore, statistical evidence that showed that there was only a .5
percent chance that a randomly selected group of seven individuals out of 26 employees
would include six or more minorities, could not, by itself, establish a prima facie case of
disparate treatment. 84 Also, a prima facie case of disparate impact racial discrimination
was not established under Title VII by a black applicant who was ostensibly rejected, in
part, for failing a polygraph examination. A prima facie case requires a showing that the
use of the lie detector tests selected applicants in a racial pattern significantly different
from that of the applicant pool. However, the plaintiff did prove disparate treatment
racial discrimination since a Caucasian applicant was hired for the job after the lie
detector indicated deception with regard to some of her answers as well. The employer
had not articulated a nondiscriminatory rationale for selecting the Caucasian, based on
the respective qualifications of the applicants, because the plaintiff was objectively more
qualified. Furthermore, the employer's justifications for selection changed throughout the
litigation, and, therefore, lacked credibility. Finally, the black applicant was also treated
differently since, unlike the selectee, she was not given an opportunity to explain the
polygraph's indication of deception subsequent to the examination. 85
Observation: While the case discussed above was decided prior to the effective date
of the EPPA, which now makes almost all preemployment testing by private employers
illegal, it is instructive in the context of discrimination concerns which may arise in the
permissible testing of employees under that statute. For instance, an employer's
apparent lack of objective standards, unfair procedures, and poor credibility will
prevent it from persuading the court that the differences in the nature of the deceptions
between employees tested is a legitimate reason for taking different actions. However,
it may be possible for an employer to justify such different actions based on
falsifications indicated through polygraph examinations, if standards for such
differentiations are clearly established in policy beforehand, are based on legitimate
business reasons or are neutral in effect, and provide an objective and consistent
procedural mechanism for implementation.
Footnotes
Footnote 80. For further discussion of the provisions of the EPPA, see 998 et seq.
Footnote 82. Ramirez v Omaha (1982, CA8) 678 F2d 751, 30 BNA FEP Cas 477, 29
CCH EPD 32698; EEOC Decision No. 76-12 (1975) CCH EEOC Decisions 6607.
Footnote 83. EEOC Decision No. 76-65 (Nov 21, 1975) CCH EEOC Dec 6649.
Footnote 84. Martin v Citibank, N.A. (1985, CA2) 762 F2d 212, 37 BNA FEP Cas 1580,
37 CCH EPD 35370.
Footnote 85. Smith v American Service Co. of Atlanta (1984, ND Ga) 35 FNA FEP Cas
1552.
3. Proving a Hiring Discrimination Claim [586- 594]
586 Obtaining evidence of discrimination

View Entire Section
To determine whether discrimination has occurred in recruiting or hiring, the attorney
should obtain a statistical analysis of the job-applicant flow for the jobs involved in the
case. In checking the representation of various groups among the job applicants the
telling comparison will be whether all groups in the labor market are proportionately
represented among the applicants. If it should appear that certain groups are heavily
preferred or other groups are largely excluded as job applicants, then it is almost certain
that the problem is in the area of recruiting and not hiring.
The use of depositions can be very effective in gathering information about recruiting
practices, because often an employer's effort to explain away recruiting techniques that
have a disparate impact will turn up evidence that supports an inference of discrimination
or even a specific intent to discriminate.
Statistics regarding the percentage of blacks in the civilian workforce in a particular area
may be obtained from census data or from a state agency. 86
Footnotes
Footnote 86. Merriweather v American Cast Iron Pipe Co. (1973, DC Ala) 362 F Supp
670, 6 BNA FEP Cas 1242, 6 CCH EPD 8966 (Alabama Department of Industrial
Relations).
EmploymentRecruiting and Hiring Practices.
587 Establishing a prima facie case

View Entire Section
The Supreme Court has outlined the plaintiff's burden of establishing a prima facie case
of disparate treatment in an individual hiring case as requiring him to show that:
(1) he belongs to a group protected by Title VII;
(2) he applied and was qualified for a job for which the employer was seeking applicants;
(3) he was rejected; and
(4) the position remained open and the employer continued to seek similarly qualified
applicants. 87
This formulation was not intended to be rigidly and mechanically applied in all
situations, but to merely explain a sensible and orderly way of evaluating the evidence in
a particular situation, 88 by eliminating the most common nondiscriminatory reasons
for a plaintiff's rejection: lack of qualifications, lack of job openings, and the failure to
apply for the job. 89
Apart from the circumstantial evidentiary showing discussed above, a prima facie case
also may be made with direct evidence of discrimination. For example, a prima facie
case of a city's discriminatory refusal to hire in violation of Title VII was established
through direct evidence of racial preference by the selecting official. 90
A prima facie case of disparate treatment in a pattern-and-practice claim usually consists
of: showing a significant statistical disparity between the composition of the workforce
at a particular time, and the qualified, interested, and available members of the protected
group within the relevant labor market. 91
These statistics raise an inference of
intentional disparate treatment discrimination because "absent explanation, it is ordinarily

to be expected that nondiscriminatory hiring practices will in time result in a workforce
more or less representative of the racial and ethnic composition of the population in the
community from which employees are hired." 92
The plaintiff proves a disparate impact case by establishing that the employer's facially
neutral hiring requirements operate to disqualify minorities at a substantially higher rate
than white applicants. 93
The employee may establish the prima facie case by
statistics alone, or by a combination of statistical and nonstatistical proof. 94 For
instance, two villages' durational residence requirements and policies of favoring
residents for village positions were discriminatory against minorities, since one village
had no black persons at all in its resident civilian labor force and the other had only 24
blacks out of a population of 11,000. Despite 20.7% county and 16.2% Chicago SMSA
availability statistics for blacks, the defendants' policies and practices resulted in the
exclusion of all blacks from consideration and employment. 95 As amended by the Civil
Rights Act of 1991 96 Title VII expressly incorporates the Griggs 97 burden of proof
requirements for complainants alleging disparate impact in hiring. 98
Plaintiffs are required to meet the same prima facie burden under 1981 as under Title
VII. 99
Footnotes
Footnote 88. Furnco Constr. Corp. v Waters (1978) 438 US 567, 57 L Ed 2d 957, 98 S
Footnote 89. Texas Dept. of Community Affairs v Burdine (1981) 450 US 248, 67 L Ed
CCH EPD 36715.
Footnote 91. Hazelwood School Dist. v United States (1977) 433 US 299, 53 L Ed 2d
469 F Supp 329, 18 BNA FEP Cas 1560, 19 CCH EPD 9028, motion den (ED Pa) 73
FRD 544, 20 BNA FEP Cas 454, 20 CCH EPD 30244.
As to proving a case by statistics alone, see 592.
As to proving a case by a combination of statistical and nonstatistical evidence, see

593.
Footnote 95. U.S. v Elmwood Park (1987, ND Ill) 43 BNA FEP Cas 995, 42 CCH EPD
36962.
Footnote 96. P.L. 102-166, 105.
588 Individual cases; proving that the plaintiff applied for a job that was vacant
View Entire Section
The second element of an individual-hiring prima facie case requires the plaintiff to show
that he or she applied for a job for which the employer was seeking applicants; 1 i.e., the
plaintiff must show an application for a vacancy.
The prima facie element of application for a vacant position was not established where:
a part-time employee did not apply for a full-time job by verbally requesting health
insurance benefits that were available only to full-time employees; 2
an applicant only made a verbal expression of interest in full-time employment, when
submission of a letter of interest and a resume were required; 3
the employer only considered applications active for six months and the plaintiff's
application was a year old; 4
the application was for the plaintiff's former position, which had been eliminated after a
change of ownership; 5
the vacancy announcement to which the plaintiff had responded had been posted by
mistake, thus, no vacancy existed. 6
While discriminatory conduct or policies can effectively deter prospective applicants and
thereby excuse the requirement of formal application, 7 claimants not excused from the
requirement of formal application must do more than merely inquire about job openings
to establish standing to assert a discriminatory hiring claim. 8 Failure to apply can
defeat cases under both Title VII and 1981. 9
The ADEA also does not require that a plaintiff formally apply for the job in question to
establish a prima facie case. Rather, the law requires either that the employer be on
specific notice that the plaintiff is seeking employment, or where informal hiring
procedures are used, that the plaintiff be in the group of people who might reasonably be
interested in the particular job. 10
A claimant's job application must be bona fide, rather than merely an attempt to qualify
as a litigation claimant. 11 The plaintiff may establish a prima facie case of hiring
discrimination, even absent the direct submission of a formal application to the employer,
by showing that:
he made every reasonable attempt to convey his interest in the job to the employer by
having precisely followed the employer's application procedures, and by visiting the
employer's office in attempting to directly apply for positions; 12
the employer has a policy of routinely considering particular candidates for vacancies,
whether or not the candidates formally apply. 13
The claimant must also establish that the disputed vacancy did in fact exist, 14 although
employers must consider applicants for job openings that occur within a reasonable time
of application, not just those vacancies that exist on the day of application. 15
Footnotes
Footnote 1. 587.
Footnote 2. Spear v Dayton's (1985, CA8) 771 F2d 1140, 38 BNA FEP Cas 1463, 38
CCH EPD 35503.
Footnote 3. Davis v Maryville College (1989, ED Mo) 50 CCH EPD 38978.
Footnote 4. Perez- Huerta v Piedmont Health Care Corp. (1986, CA4) 804 F2d 678, 41
CCH EPD 36564.
Footnote 5. Cooper v Anaconda-Ericsson Corp. (1986, ND Ind) 42 BNA FEP Cas 401,
40 CCH EPD 36290.
Footnote 6. Oates v District of Columbia (1986, DC Dist Col) 647 F Supp 1079, 41 BNA
FEP Cas 1334, affd 262 US App DC 360, 824 F2d 87, 44 BNA FEP Cas 639, 43 CCH
EPD 37271.
Footnote 7. 589.
Footnote 8. Banks v Heun-Norwood (1977, CA8) 566 F2d 1073, 15 BNA FEP Cas 1571,
16 BNA FEP Cas 198, 15 CCH EPD 7910, 15 CCH EPD 8050; Gay v Waiters' &
Dairy Lunchmen's Union (1982, CA9) 694 F2d 531, 30 BNA FEP Cas 605.
Footnote 9. Rodgers v Peninsular Steel Co. (1982, ND Ohio) 542 F Supp 1215.
Footnote 10. Whalen v Unit Rig, Inc. (1992, CA10) 974 F2d 1248, 59 BNA FEP Cas
1368, 59 CCH EPD 41755, 24 FR Serv 3d 195.

Footnote 11. Allen v Prince George's County (1982, DC Md) 538 F Supp 833.
Footnote 12. EEOC v Metal Service Co. (1990, CA3) 892 F2d 341, 51 BNA FEP Cas
1238, 52 CCH EPD 39545.
Footnote 13. Wanger v G.A. Gray Co. (1989, CA6) 872 F2d 142, 49 BNA FEP Cas 800,
49 CCH EPD 38896.
Footnote 14. Betts v Sperry Div. of Sperry Rand Corp. (1983, ED NY) 556 F Supp 562,
31 BNA FEP Cas 164.
Footnote 15. Harrell v Northern Electric Co. (1982, CA5) 672 F2d 444, 28 BNA FEP Cas
911, 28 CCH EPD 32608, mod and reh den (CA5) 679 F2d 31, 29 BNA FEP Cas 913,
29 CCH EPD 32842, cert den 459 US 1037, 74 L Ed 2d 603, 30 BNA FEP Cas 440,
30 CCH EPD 33157.
589 Individual cases; proving that application would have been futile
View Entire Section
An employer's history of discrimination can have a "chilling effect" on the hiring process
by discouraging qualified minority persons from applying. The Supreme Court has held
that even nonapplicants are entitled to relief under Title VII, if they can perform the
"difficult task" of proving that (1) they were deterred from applying due to their
unwillingness to undergo the humiliation of certain rejection that would result from the
employer's discriminatory practices, and (2) they would have applied had those practices
not existed. 16
For example, a failure to complete a formal application for a job did not preclude the
would-be applicant from establishing a prima facie case of discrimination against the
employer where:
in response to the applicant's inquiry about the job, a Navy employee told him that the
Navy was looking for young engineers so that there was direct evidence that the applicant
was either rejected or deterred from applying because of age; 17
the first job description in the job posting was tailored to males, the employer had listed
similar job notices in the past, and the plaintiff therefore reasonably concluded that an
application would have been futile. 18
Even an employer's reputation in the minority community for discrimination may have a
chilling effect on potential job applicants. Reputation evidence has been received to show
why blacks may have been discouraged from applying for traditionally white jobs and
how and why some blacks who did apply may have been discouraged from pursuing their
applications, and also to show reputation had a direct bearing on the nature and extent of
the appropriate relief. 19 However, in the absence of evidence of actual discrimination,

another court held that it was impermissible to base recovery on the subjective belief of
protected class members that their race limited their opportunities with an employer. 20
Footnotes
Footnote 17. McDermott v Lehman (1984, DC Me) 594 F Supp 1315, 36 BNA FEP Cas
531.
Footnote 18. Hartman v Wick (1984, DC Dist Col) 600 F Supp 361, 36 BNA FEP Cas
622, 35 CCH EPD 34876.
Footnote 19. United States v Central Motor Lines, Inc. (1971, WD NC) 338 F Supp 532,
Footnote 20. Lewis v Tobacco Workers' International Union (1978, CA4) 577 F2d 1135,
S Ct 871, 18 BNA FEP Cas 1430, 18 CCH EPD 8716A.
590 Individual cases; proving the plaintiff's qualifications

View Entire Section
The second element of an individual-hiring prima facie case requires the plaintiff to show
that he or she was "qualified" for the sought-after job. 21 However, the United States
Supreme Court has held that there is no requirement that a claimant show that he was
better qualified than the person ultimately selected for the position in question in order to
prevail, since the demonstration of superior qualifications is only one of several ways to
raise the inference of discriminatory motivation. 22
Observation: The Supreme Court's rejection of the requirement of demonstrating

superior qualifications is specifically applicable to the claimant's burden in
demonstrating pretext. 23 Since the prima facie burden is merely a burden of
production of evidence sufficient to raise a rebuttable presumption, and merges with
the ultimate burden of persuasion that the employer's explanation is a pretext for
discrimination, it is logical to conclude that evidence of superior qualifications is not
necessary to establish the qualifications prima facie element. What may not be
required to satisfy the ultimate burden may certainly not be required to satisfy the
lesser one.
The necessity that an individual be qualified for a job in order to be covered by the ADA
is [R*ACdiscussed in 050] et seq.
There is an important difference between qualification and eligibility. Qualification

relates to a person's ability to carry out the functions of a position, and eligibility relates
to whether a person is permitted to apply for the position. Although an employer
contended that an applicant was not qualified for a job because she was not eligible, as
only its own employees were eligible, the employer conceded that the applicant was
qualified except for her ineligibility. Thus, she was qualified for the position. 24
Footnotes
Footnote 21. 587.
Footnote 23. As to demonstrating pretext, see 594.
Footnote 24. Jackson v Kinney (1991, WD Mo) 762 F Supp 863, 55 BNA FEP Cas 1492.
591 Individual cases; proving that the job remained open after plaintiff's
rejection
View Entire Section
The fourth element of an individual prima facie hiring casethat the position remained
open and the defendant continued to seek applicants after rejecting the plaintiff 25 may
be established by showing that within a reasonable time after the complainant's
application the vacancy was filled by a nonprotected group individual who had no better
qualifications than those of the claimant, 26 or by statistical evidence establishing that
all individuals holding the job are white. 27 One court found a Title VII violation
against a black applicant on evidence that blacks were underrepresented in the employer's
facility and that the white person actually hired as an affirmative action officer had no
familiarity with the black community. 28
Footnotes
Footnote 25. 587.
Footnote 26. United States v Hazelwood School Dist. (1976, CA8) 534 F2d 805, 12 BNA
FEP Cas 1161, 11 CCH EPD 10854, vacated on other grounds 433 US 299, 53 L Ed
2d 768, 97 S Ct 2736, 15 BNA FEP Cas 1, 14 CCH EPD 7633; Gates v
GeorgiaPacific Corp. (1974, CA9) 492 F2d 292, 7 BNA FEP Cas 416, 7 CCH EPD
9185; Garner v Boorstin (1982, App DC) 690 F2d 1034, 29 BNA FEP Cas 1765, 30 CCH
EPD 33102.
Footnote 27. Brown v Rollins, Inc. (1974, DC NC) 397 F Supp 571, 16 BNA FEP Cas
271, 9 CCH EPD 9862.
Footnote 28. Cooper v Department of Admin. (1982, DC Nev) 558 F Supp 244.
592 Proving a case by statistics

View Entire Section
Statistics are usually essential in proving both disparate treatment pattern-and-practice
cases and disparate impact cases. 29 They are particularly helpful in proving
discrimination in recruiting and hiring under Title VII 30 and 1981. 31
It has been
held that the plaintiff must show a statistically significant disparity between the
percentage of minorities or women in the workforce and on the company's employment
roster. 32 However, other cases have indicated that a comparison of the number of
minority group members employed with their percentage of the total population in the
area ignores the fact that all segments of the population may not be equally qualified for
the positions in question, that different groups within the population may have different
levels of desire for the particular job, and that the comparison improperly suggests that
quota hiring is required. 33 One court has held, therefore, that the appropriate
comparison is not between the relevant workforce and the number of minorities actually
employed, but rather between the workforce and the number of minorities offered
employment. 34
Statistical evidence was held to establish a prima facie case of unlawful discrimination
where it was shown that:
an airline employed approximately 5,900 flight officers, only nine of whom were black;
35
in an area with a 30% black population, 918 whites, but only six blacks, held office and
technical positions with the employer; 36
the disparity between the percentage of blacks that applied for clerical positions and
those hired exceeded 2.33 standard deviations; 37
black employees were 16 to 12% less likely than whites to be hired at a level higher
than the normal entry level, and the statistical significance of these percentages was .05
and .01 respectively; 38
only 7% of an employer's 119 employees belonged to religious sects other than Amish
or Mennonite, but the combined Amish and Mennonite population in the relevant area
was only 33% of the total population. 39
However, statistics were inadequate to establish a prima facie case of hiring
discrimination under a disparate impact analysis when:
the statistics merely showed that minority employees worked a disproportionate number
of hours compared to nonminority employees, and omitted such variables as special
skills, willingness to work, and self- solicitation; 40
instead of analyzing the complete applicant pool, from which candidates lacking
minimal qualifications had already been eliminated, the statistics examined only a subset
of the pool which had a particular type of previous experience; 41
the statistics incorrectly assumed that an applicant's address could be discerned from the
application itself without aid of a map, and artificially raised the overall percentage of
minority availability by excluding occupations having minorities interested in applying
for entry- level positions with the employer. 42
A town's policy and ordinance that limited municipal job recruitment to residents had a
proven racially discriminatory impact on blacks, since over 99% of the town's population
was non-black and the town had no blacks on its work force, although 22% of the town's
private-sector work force was black. Since the town had no black residents, any
limitation of hiring for municipal jobs to residents effectively excluded black people from
employment by the town. 43
Statistics showing a racial imbalance in the employer's labor force, while helpful, are
usually not controlling as to an individual hiring decision. 44
For instance, work force
imbalances that alone did not establish an individual disparate treatment prima facie case
of hiring discrimination have included:
the fact that no man had ever been hired to work in the department in which a male
plaintiff had applied, without evidence as to how many men had applied for such jobs or
their percentage in the relevant labor market; 45
the fact that an employer had never hired any non-whites for management positions; 46
Footnotes
Footnote 29. As to the use of statistical evidence, generally[R*DB, see 662] et seq.
1240 and affd (CA4) 7 BNA FEP Cas 666, 7 CCH EPD 9251; United States v
International Brotherhood of Electrical Workers (1972, DC Nev) 356 F Supp 104, 5 BNA
FEP Cas 187, 6 BNA FEP Cas 388, 5 CCH EPD 8022, 5 CCH EPD 8516.
Footnote 31. Sabala v Western Gillette, Inc. (1973, SD Tex) 362 F Supp 1142, 6 BNA
FEP Cas 120, 6 CCH EPD 8863, supp op (SD Tex) 371 F Supp 385, 7 BNA FEP Cas
vacated on other grounds 431 US 951, 53 L Ed 2d 268, 97 S Ct 2670, 14 BNA FEP Cas
1686, 14 CCH EPD 7580.
Footnote 32. Watkins v United Steel Workers (1974, ED La) 369 F Supp 1221, 7 BNA
Footnote 33. McAdory v Scientific Research Instruments, Inc. (1973, DC Md) 355 F
Supp 468, 5 BNA FEP Cas 680, 5 CCH EPD 8524; Harper v Baltimore (1973, DC Md)
359 F Supp 1187, 5 BNA FEP Cas 1050, 5 CCH EPD 8658, affd in part and mod in
part on other grounds (CA4) 486 F2d 1134, 6 BNA FEP Cas 880, 6 CCH EPD 8915.
Cas 17, 5 CCH EPD 7996.
Footnote 36. United States v Hayes International Corp. (1972, CA5) 456 F2d 112, 4
Footnote 37. Harrell v Northern Electric Co. (1982, CA5) 672 F2d 444, 28 BNA FEP Cas
911, 28 CCH EPD 32608, mod and reh den (CA5) 679 F2d 31, 29 BNA FEP Cas 913,
29 CCH EPD 32842, cert den 459 US 1037, 74 L Ed 2d 603, 30 BNA FEP Cas 440,
30 CCH EPD 33157.
Footnote 38. Segar v Civiletti (1981, DC Dist Col) 508 F Supp 690, 25 BNA FEP Cas
1452, 26 CCH EPD 31982.
Footnote 39. EEOC Decision No. 76-95 (1976), CCH EEOC Deci 6672.
Footnote 40. Lucas v International Assn. of Bridge, etc. (1989, ND Ohio) 741 F Supp
53 BNA FEP Cas 912, reported in full (CA6) 1990 US App LEXIS 9700.
Footnote 41. Flynn v Portland & General Electric Co. (1992, CA9) 1992 US App LEXIS
6382 (unpublished).
Footnote 42. EEOC v Jordan Graphics, Inc. (1991, WD NC) 769 F Supp 1357.
Footnote 43. NAACP, Newark Branch v Harrison (1990, DC NJ) 749 F Supp 1327, 53
680, 57 CCH EPD 40908, corrected (CA3) 56 BNA FEP Cas 1688.
Footnote 45. Dowd v Northrop Corp. (1991, CA1) 1991 US App LEXIS 15038.
Footnote 46. Das v Bowmar/Ali, Inc. (1991, CA1) 1991 US App LEXIS 15189.
593 Augmenting statistics with other evidence

View Entire Section

A discriminatory hiring case based on statistics may be strengthened by evidence that the
employer:
did not list employment vacancies with the state employment service; 47
did not advertise employment opportunities in newspapers directed toward minority
communities while advertising in papers primarily directed toward readers in the white
community; 48
recruited by word of mouth; 49
did not post job openings; 50
refused application forms to persons applying directly to it for referral-union
employment; 51
had no objective criteria for evaluating job applicants; 52
made no attempt to determine whether its interviewers were racially prejudiced or to
correct such prejudice if it existed; 53
allowed interviewers to make subjective judgments about applicants' personality,
appearance, dress, and speech without a structured or written format for questions asked
of the applicants; 54
had a reputation in the minority community of discriminating against members of the
community, 55
where the evidence is offered for admissible purposes, and not merely
to prove reputation. 56
Anecdotal evidence of alleged past discrimination by an employer must be sufficiently
detailed to demonstrate that discrimination was its standard operational procedure, and
evidence of a discriminatory reputation requires a foundation to raise it above mere
hearsay. 57
The absence of written guidelines or job descriptions by a small company does not
establish discriminatory hiring practices. 58
Footnotes
EPD 7580.
Footnote 48. EEOC v Riss International Corp. (1981, WD Mo) 525 F Supp 1094, 27
CCH EPD 32372.
Footnote 49. Equal Employment Opportunity Com. v American Nat. Bank (1981, CA4)
652 F2d 1176, 26 BNA FEP Cas 472, 26 CCH EPD 31920, reh den (CA4) 680 F2d
965, 30 BNA FEP Cas 906, 29 CCH EPD 32720 and cert den 459 US 923, 74 L Ed 2d
Footnote 50. Reed v Arlington Hotel Co. (1973, CA8) 476 F2d 721, 5 BNA FEP Cas
S Ct 153, 6 BNA FEP Cas 607, 6 CCH EPD 8861; Hairston v McLean Trucking Co.
(1972, MD NC) 62 FRD 642, 6 BNA FEP Cas 775, 6 BNA FEP Cas 779, 11 BNA FEP
Cas 84, 6 CCH EPD 8841, 6 CCH EPD 8955, 7 CCH EPD 9144, 8 CCH EPD
9784, vacated on other grounds (CA4) 520 F2d 226, 11 BNA FEP Cas 91, 10 CCH EPD
10353.
S Ct 153, 6 BNA FEP Cas 607, 6 CCH EPD 8861; EEOC Decision No. 77-14 (1977)
CCH EEOC Decisions 6567, 19 BNA FEP Cas 1154.
Footnote 52. Fourth CircuitOpara v Modern Mfg. Co. (1977, DC Md) 434 F Supp
Fifth CircuitRobbins v White-Wilson Medical Clinic, Inc. (1981, CA5) 660 F2d 1064,
27 BNA FEP Cas 225, 27 CCH EPD 32209, vacated on other grounds 456 US 969, 72
Eighth CircuitReed v Arlington Hotel Co. (1973, CA8) 476 F2d 721, 5 BNA FEP Cas
Footnote 53. Robbins v White-Wilson Medical Clinic, Inc. (1981, CA5) 660 F2d 1064,
27 BNA FEP Cas 225, 27 CCH EPD 32209, vacated on other grounds 456 US 969, 72
L Ed 2d 842, 102 S Ct 2229, 28 BNA FEP Cas 1392, 28 CCH EPD 32676; Stamps v
Detroit Edison Co. (1973, ED Mich) 365 F Supp 87, 6 BNA FEP Cas 612, 6 CCH EPD
8890, corrected (ED Mich) 6 BNA FEP Cas 1326, 7 CCH EPD 9250 and revd on other
grounds (CA6) 515 F2d 301, 10 BNA FEP Cas 239, 10 BNA FEP Cas 1063, 9 CCH EPD
S Ct 2668, 97 S Ct 2669, 14 BNA FEP Cas 1686, 14 CCH EPD 7580.
Footnote 54. Stamps v Detroit Edison Co. (1973, ED Mich) 365 F Supp 87, 6 BNA FEP
EPD 7580; King v New Hampshire Dept. of Resources & Economic Development,
Hampton Beach Meter Patrol (1976, DC NH) 420 F Supp 1317, 13 BNA FEP Cas 1056,
7803.
Footnote 55. United States v Central Motor Lines, Inc. (1971, WD NC) 338 F Supp 532,
4 BNA FEP Cas 216, 4 CCH EPD 7624, supp op (WD NC) 352 F Supp 1253, 5 BNA
FEP Cas 88, 5 CCH EPD 7945; Hairston v McLean Trucking Co. (1972, MD NC) 62
FRD 642, 6 BNA FEP Cas 775, 6 BNA FEP Cas 779, 11 BNA FEP Cas 84, 6 CCH EPD
8841, 6 CCH EPD 8955, 7 CCH EPD 9144, 8 CCH EPD 9784, vacated on other
grounds (CA4 NC) 520 F2d 226, 11 BNA FEP Cas 91, 10 CCH EPD 10353; Stamps v
Detroit Edison Co. (1973, ED Mich) 365 F Supp 87, 6 BNA FEP Cas 612, 6 CCH EPD
8890, corrected (ED Mich) 6 BNA FEP Cas 1326, 7 CCH EPD 9250 and revd on other
ground (CA6) 515 F2d 301, 10 BNA FEP Cas 239, 10 BNA FEP Cas 1063, 9 CCH EPD
S Ct 2668, 97 S Ct 2669, 14 BNA FEP Cas 1686, 14 CCH EPD 7580.
Footnote 56. Ochoa v Monsanto Co. (1973, CA5) 473 F2d 318, 5 BNA FEP Cas 483, 5
CCH EPD 8437.
Footnote 57. Steele v Hill's Pet Products, Inc. (1989, DC Kan) 1989 US Dist LEXIS
11625.
594 Attacking the employer's justifications

View Entire Section
Go to Supplement
Once the employer has answered the plaintiff's prima facie case, 59 the plaintiff has a
final chance to show that discrimination was the real reason for the denial of
employment. In an individual disparate- treatment case, the employee has to show that
the reasons offered by the defendant are merely pretexts for discrimination. In a
pattern-or-practice disparate treatment claim, the defendant's statistical model must be
attacked. In a disparate impact case, the availability of other selection techniques that
safeguard the employer's interests as well, but that have less adverse impact, are at issue
in the third stage of proof. Thus, as amended by the Civil Rights Act of 1991, 60 Title
VII allows the complainant in a disparate impact case to rebut the employer's defense by
showing the availability of a less discriminatory alternative that the employer refuses to
adopt. 61
This principle is intended to apply also to those antidiscrimination laws that have been
modeled after and interpreted consistently with Title VII. Thus, disparate impact claims
brought under the ADEA or the ADA should be treated in the same manner as under
Title VII as amended. 62
A 1981 plaintiff can meet her burden of persuasion without proving that she was better
qualified than the successful applicant for a vacant position. The Title VII allocation of
burdens of proof for disparate treatment cases also applies to 1981 claims. Under the
correct allocation, the plaintiff should have an opportunity to show that, despite the
successful applicant's superior qualifications, the employer's explanation for its decision
to reject the plaintiff was a pretext for discrimination. 63
However, pretext is not demonstrated simply because a plaintiff is equally qualified as
the person selected, since Title VII does not obligate an employer to hire a minority
applicant over an equally qualified non-minority applicant. 64 Nevertheless, where there
was already some evidence that the employer hired only his friends who were the same
race, age, and color as he, 65 the plaintiff's evidence that she met the minimum
qualifications for the position, but that the person selected, who was a friend of the
employer, did not, was sufficient to raise a question of discriminatory intent. 66
The superior job qualifications of plaintiffs compared with the qualifications of those
actually hired are frequently the basis for successful demonstrations that the employers'
asserted justifications for hiring decisions are merely a cover-up for unlawful
discrimination. 67
Pretext was also shown where:
the employer asserted that the required qualifications for a given position were
reformulated out of deference to an incoming mayoral administration and thus refused to
hire a white candidate who met the original qualifications for the position, where the
selecting official had only articulated the "reevaluation" rationale after inquiring about
the race of the candidates on the register of applicants and learning that they were all
white; 68
the employer rejected a 60-year-old applicant because he was "overqualified," which
defied common sense by implying that a person with a lot of experience and training
would be turned down in favor of a younger person deemed more qualified than the
"overqualified" candidate. Although an employer might reasonably believe that a young
"overqualified" candidate would continue to seek better employment opportunities, that
rationale does not fit older applicants who are unlikely to have other employment
opportunities. 69
Observation: The employer in the latter case might have been successful if it had
demonstrated a consistent policy of rejecting "overqualified" candidates of various age
groups on the grounds that such workers would tend to be dissatisfied with the less
challenging work being offered, and thus create morale or performance problems.
Caution: Without evidence of a consistent application of a policy that rejects

"overqualified" applicants of all age groups, an employer's assumptions about morale
problems, tenure, or advancement problems of such individuals may cause courts to
regard an "overqualified" rationale as less credible when applied to a particular older
worker.
However, it was not age discrimination to refuse to consider an older person for a
position based on "overqualification" that would negatively affect his job performance,
especially since he personally expressed dissatisfaction with the reduced responsibilities
and reporting aspects of the position. 70
594 ----Attacking the employer's justifications [SUPPLEMENT]

Case authorities:
Fact that employer proffered false reason for rejecting plaintiff for later job has little
relevance to evaluation of sincerity of employer's explanations for its rejection of plaintiff
for earlier job. Odima v Westin Tucson Hotel Co. (1993, CA9 Ariz) 991 F2d 595, 93
Daily Journal DAR 4858, 61 BNA FEP Cas 961, 61 CCH EPD 42199.
Footnotes
Footnote 59. As to the defense against a prima facie case, see 596- , see 599.
Footnote 60. P.L. 102-166, 105.
Footnote 64. Daniels v Board of Education (1986, CA6) 805 F2d 203, 42 BNA FEP Cas
744, 42 CCH EPD 36776, amd, reh den (CA6) 44 BNA FEP Cas 847.
Footnote 66. Morris v Communications Satellite Corp. (1991, DC Dist Col) 773 F Supp
Footnote 67. Schwartz v Florida (1980, ND Fla) 494 F Supp 574, 23 BNA FEP Cas 203;
EEOC Decision No. 79-16 (1978) CCH EEOC Decisions 6746, 26 BNA FEP Cas
1764.
CCH EPD 36715.
Footnote 69. Taggart v Time, Inc. (1991, CA2) 924 F2d 43, 54 BNA FEP Cas 1628, 55
CCH EPD 40521.
4. Defending Against a Claim [595-599]
595 Employer's burden of presentation

View Entire Section

In cases with claims of discriminatory hiring practices involving refusal or impairment of
the right to make contracts, employers are required to meet the same burden of
production under 1981 as under Title VII. 71
Footnotes
The employer's burden of presentation in response to a plaintiff's prima facie statistical
claim of disparate treatment or impact discrimination is fully discussed in the context of
proof at 2755 et seq.
596 Defending against an individual claim

View Entire Section
The simplest and most direct defense to an individual prima facie case is to attack the
factual basis on which the prima facie case rests. For instance, in the typical hiring
decision, there is no prima facie case if the plaintiff has failed to demonstrate that:
he completed the application process; thus, he failed to apply for the job; 72
the job was ever filled by anyone; thus no opening existed; 73
he possessed the required skills of the position; thus, he was not qualified for the job. 74
Employers have also prevailed on showings that:
the job was awarded to a member of the same minority as that of the applicant; 75
the job was awarded to a more qualified applicant; 76
the rejected applicant failed to disclose her less-than-favorable prior employment
experience; 77
the employer has a reputation for proper sensitivity to racial prejudice; 78
qualified employee could be hired for 42% of the claimant's prior salary or two-thirds of
the salary that the claimant was willing to accept, and the employer could properly
choose to save relocation costs as well, where the claimant was the only out-of-state
applicant; 79
those reviewing the applications did not know the applicants' race; 80
the plaintiff's job was filled by a younger person during the plaintiff's leave of absence
before the employer knew that she wanted to return, and that younger employees taking
leaves of absence were treated similarly; 81
a black applicant was not hired because a collective bargaining agreement required the
employer to give preference to persons returning from leave and those holding the
disputed positions under temporary contracts; 82
the successful candidate, in contrast to the plaintiff, had already performed the work
involved and had good relations with employees and with federal and state funding
sources. 83
However, in the face of contradictory evidence indicating disparate treatment, employers
have failed to rebut prima facie cases of individual hiring discrimination by arguing that:
an applicant withdrew her application when she published a newspaper advertisement
announcing her association with another firm; 84
21 of 38 of the employer's keypunch operators were nonwhite, and five of eight new
hires during the relevant period were black; 85
a rejected applicant's request for a salary nearly twice what the employer was willing to
pay justified failure to consider the applicant; 86
the later hiring of a protected group member proved that the previous denial of
employment to a minority group candidate was not racially motivated; 87
the individuals hired were more qualified than the black plaintiffs, where the hiring
supervisor did not know this at the time of hiring; 88
an applicant for rehire had failed to follow instructions, was disruptive, had left her
work area, and had complained about the physical requirements of her job, since the
employer failed to document these problems, it hired a male employee with documented
disciplinary problems, it promoted another male employee over another qualified female,
and female supervisors were scarce. 89
Footnotes
Footnote 72. Tagupa v Board of Directors (1980, CA9) 633 F2d 1309, 27 BNA FEP Cas
1041, 25 CCH EPD 31701.
Footnote 73. Sabala v Western Gillette, Inc. (1975, CA5) 516 F2d 1251, 11 BNA FEP
Cas 98, 10 CCH EPD 10360, reh den (CA5) 542 F2d 1173 and reh den (CA5) 542 F2d
1173 and vacated on other grounds 431 US 951, 53 L Ed 2d 268, 97 S Ct 2670, 14
BNA FEP Cas 1686, 14 CCH EPD 7580; United States v N. L. Industries, Inc. (1973,
CA8) 479 F2d 354, 5 BNA FEP Cas 823, 6 BNA FEP Cas 116, 5 CCH EPD 8529, 5
CCH EPD 8628, 17 FR Serv 2d 68; Coe v Yellow Freight System, Inc. (1981, CA10)
Footnote 74. Walker v Jim Dandy Co. (1981, CA5) 638 F2d 1330, 25 BNA FEP Cas 649,
25 CCH EPD 31659, 31 FR Serv 2d 330; Wright v Stone Container Corp. (1975, CA8)
524 F2d 1058, 11 BNA FEP Cas 1322, 10 CCH EPD 10435, 20 FR Serv 2d 1199.
Footnote 75. United States v N. L. Industries, Inc. (1973, CA8) 479 F2d 354, 5 BNA FEP
Cas 823, 6 BNA FEP Cas 116, 5 CCH EPD 8529, 5 CCH EPD 8628, 17 FR Serv 2d
68; Canty v Olivarez (1978, ND) 452 F Supp 762, 22 BNA FEP Cas 513; Wofford v
Safeway Stores, Inc. (1978, ND) 78 FRD 460, 18 BNA FEP Cas 1645.
Footnote 76. Danzl v North St. Paul-Maplewood-Oakdale Independent School Dist.
Footnote 77. King v New Hampshire Dept. of Resources & Economic Development,
Hampton Beach Meter Patrol (1976, DC NH) 420 F Supp 1317, 13 BNA FEP Cas 1056,
7803.
Footnote 78. Stevens v Junior College Dist. (1977, CA8) 548 F2d 779, 14 BNA FEP Cas
752, 13 CCH EPD 11551; Davis v Hellmuth, Obata & Kassabaum, Inc. (1976, ED Mo)
416 F Supp 997, 14 BNA FEP Cas 349, affd without op (CA8) 547 F2d 1172, 14 BNA
FEP Cas 1504.
Footnote 79. Diamantopulos v Brookside Corp. (1988, DC Conn) 683 F Supp 322, 49
Footnote 80. Mitchell v Office of Los Angeles County Superintendent of Schools (1986,
98 L Ed 2d 122, 108 S Ct 168.
Footnote 81. EEOC v Sperry Corp. (1988, CA10) 852 F2d 503, 47 BNA FEP Cas 433,
47 CCH EPD 38143.
Footnote 82. Spann v Ann Arbor Public Schools (1989, CA6) 867 F2d 611.
Footnote 83. Wrenn v Gould (1987, CA6) 808 F2d 493, 42 BNA FEP Cas 1133, 42 CCH
EPD 36803, cert den 484 US 1067, 98 L Ed 2d 996, 108 S Ct 1032, 45 CCH EPD
37761.
Footnote 84. Joshi v Florida State University (1981, CA5) 646 F2d 981, 26 BNA FEP
Footnote 85. Cross v United States Postal Service (1981, CA8) 639 F2d 409, 24 BNA
FEP Cas 1603, 25 CCH EPD 31594.
Footnote 86. Davis v Jackson County Port Authority (1980, CA5) 611 F2d 577, 22 BNA
FEP Cas 51, 22 CCH EPD 30629, reh den (CA5) 614 F2d 1298.
Footnote 87. NAACP v Corinth (1979, ND Miss) 83 FRD 46, 20 BNA FEP Cas 1044, 21
CCH EPD 30364.
Footnote 88. Eastland v Tennessee Valley Authority (1983, CA11) 704 F2d 613, 31 CCH
EPD 33571.
Footnote 89. Baggett v Program Resources, Inc. (1986, CA8) 806 F2d 178, 42 BNA FEP
Cas 648, 41 CCH EPD 36679.
597 Attacking a statistical claim

View Entire Section
Where a plaintiff's evidence reveals a significant statistical disparity in hiring, the
employer is obliged to explain that showing or else have an inference of discrimination
drawn against it. 90 Statistical evidence is particularly subject to scrutiny in the case of
small companies. 91
To meet its burden in a pattern and practice case, an employer need only produce
evidence that raises a genuine issue of fact as to whether it discriminated. It does not
have the burden of producing more compelling evidence or a more probative statistical
analysis than the EEOC, nor does it need to carry the burden of persuasion as to the
nonexistence of a disparity. Thus, a large retailer successfully attacked the EEOC's
statistical evidence of sex discrimination in hiring commission salespersons by
demonstrating flaws in the design of the EEOC's statistical analysis resulting from
inaccurate assumptions about women's interests in and qualifications for commission
sales work. 92
The employer may attempt to show that the employee's statistics are inaccurate or
insignificant. 93 Another way of defending against statistics is to attack them as
inadequate. Statistical comparisons can be flawed if they fail to account for all relevant
variables. Statistical demonstrations have been held insufficient in hiring cases, where:
the races of job applicants were not shown; 94
the number of new hires was too small to establish statistical significance; 95
the differential rate of hiring was too small to justify an inference of discrimination; 96
the job qualifications of minority applicants were not established. 97
However, an employer's argument that statistics fail to show how many qualified job
applicants there were is unavailing where the plaintiff's case rests in part on the assertion
that the employer's job qualifications themselves are discriminatory. 98
Another way to rebut a statistical case is to show that a racial imbalance is explainable by
nondiscriminatory factors. One such factor is that comparatively fewer minority
applicants than whites applied for the job. However, it has been held that even if the
employer proves that there is a lack of applications from minority group members or
women, the inference may be that they were discouraged from applying because of the
employer's discriminatory practices, rather than because of any disinterest in the work. 99
Other nondiscriminatory reasons which may be used in explaining away a statistical
imbalance are:
the fact that the qualifications of the persons selected were superior to those of the
rejected applicants;
the fact that comparatively fewer minority individuals in the labor market had the
requisite qualifications. 1
Where the plaintiff has used applicant flow statistics to establish a prima facie case, the
qualifications of the actual applicants become the relevant comparison, and the employer
cannot make a rebuttal by relying on qualifications in the general population. 2
However, an employer rebutted a prima facie case of racial discrimination in hiring by
showing that the disparity in the percentage of blacks employed in contrast to the
percentage of qualified blacks in the local labor force was the result of hiring practices
that occurred prior to the effective date of Title VII, and that hiring practices adopted
after the effective date of the Act were nondiscriminatory. 3
Footnotes
Footnote 90. Watkins v United Steel Workers (1974, ED La) 369 F Supp 1221, 7 BNA
Decisions 6562, 19 BNA FEP Cas 133; EEOC Decision No. 77-13 (1977) CCH EEOC
Decisions 6566, 19 BNA FEP Cas 1149.
Cas 1257, 45 CCH EPD 37681.
Footnote 93. Walls v Mississippi State Dept. of Public Welfare (1982, ND Miss) 542 F
Supp 281.
Footnote 94. Wilson v Michigan Bell Tel. Co. (1982, ED Mich) 550 F Supp 1296.
Footnote 95. Woody v West Miami (1979, SD Fla) 477 F Supp 1073, 21 BNA FEP Cas
315, 22 CCH EPD 30605.
Footnote 96. Davis v Dallas (1979, ND Tex) 483 F Supp 54, 24 BNA FEP Cas 45, 24
CCH EPD 31307, motion den (ND Tex) 487 F Supp 389, 24 BNA FEP Cas 1214, 25
CCH EPD 31740.
Footnote 97. Williams v Tallahassee Motors, Inc. (1979, CA5) 607 F2d 689, 21 BNA
FEP Cas 626, 21 CCH EPD 30430, reh den (CA5) 614 F2d 294 and cert den 449 US
Cas 17, 5 CCH EPD 7996.
EPD 7580; EEOC Decision No. 77-14 (1977) 19 BNA FEP Cas 1154, CCH EEOC Dec
6567.
Footnote 1. Croker v Boeing Co. (Vertol Div.) (1977, ED Pa) 437 F Supp 1138, 15 BNA
CCH EPD 32160, 32 FR Serv 2d 990; Neloms v Southwestern Electric Power Co.
(1977, WD La) 440 F Supp 1353, 18 BNA FEP Cas 1683; EEOC Decision No. 77-13
(1977) CCH EEOC Decisions 6566, 19 BNA FEP Cas 1149.
Footnote 2. Payne v Travenol Laboratories, Inc. (1982, CA5) 673 F2d 798, 28 BNA FEP
Cas 1212, 28 CCH EPD 32647, 33 FR Serv 2d 1582, reh den (CA5) 683 F2d 417 and
cert den 459 US 1038, 74 L Ed 2d 605, 103 S Ct 451, 103 S Ct 452, 30 BNA FEP Cas
440, 30 CCH EPD 33157.
Footnote 3. Booth v Board of Directors of Nat. American Bank (1979, ED La) 475 F
598 Using statistics affirmatively in defense

View Entire Section
An employer may use favorable minority hiring statistics to establish a defense. 4 For
example, statistics may be used to rebut a prima facie case where the percentage of
minorities or women hired over a certain period of time is greater than the percentage of
members of protected groups in the relevant labor market. 5
Observation: Demographics can play a deciding role in statistical comparisons. If

the relevant labor market is restricted to an area with a large minority population, then
the employer's hiring record will have to show a correspondingly high percentage of
minority hires. If the relevant geographical area is defined to include rural or other
areas that do not have high minority populations, then the minority hiring burden will
be correspondingly reduced.
Footnotes
6135.
Footnote 5. Taylor v Safeway Stores, Inc. (1973, DC Colo) 365 F Supp 468, 6 BNA FEP
Cas 556, 6 CCH EPD 8928.
599 Augmenting statistics with other evidence

View Entire Section
If possible, the employer should buttress its statistical case with other evidence of
nondiscriminatory hiring practices. For example, it might show that it:
placed job posters at predominantly black centers and learning institutions; 6
recruited employees at predominantly black high schools and colleges; 7
advertised in newspapers that it is an "equal opportunity employer"; 8
advertised extensively in an effort to recruit minorities; 9
hired through the state employment service;
hired through an urban league;
established a training shop for blacks in a black neighborhood; 10
participated in affirmative action programs with civil rights and community
organizations. 11
However, while the adoption of an affirmative action program after a claim of
discriminatory hiring practices is made might affect the remedy imposed, it does nothing
to rebut a prima facie case of discrimination in regard to acts that occurred prior to its
adoption. 12
Footnotes
Footnote 6. Henderson v First Nat. Bank (1973, DC Ala) 360 F Supp 531, 6 BNA FEP
Cas 859, 6 CCH EPD 8866.
6135.
Footnote 8. U.S. v Hayes International Corp. (1970, ND Ala) 3 BNA FEP Cas 180, 3
CCH EPD 8115, affd in part and revd in part on other grounds (CA5) 456 F2d 112, 4
BNA FEP Cas 411, 4 CCH EPD 7690; Henderson v First Nat. Bank (1973, MD Ala)
Footnote 9. EEOC v Datapoint Corp. (1978, CA5) 570 F2d 1264, 17 BNA FEP Cas 281,
16 CCH EPD 8225, 25 FR Serv 2d 324, reh den (CA5) 575 F2d 300.
Footnote 10. U.S. v Hayes International Corp. (1970, ND Ala) 3 BNA FEP Cas 180, 3
CCH EPD 8115, affd in part and revd in part on other grounds (CA5) 456 F2d 112, 4
Footnote 11. EEOC v Datapoint Corp. (1978, CA5) 570 F2d 1264, 17 BNA FEP Cas
281, 16 CCH EPD 8225, 25 FR Serv 2d 324, reh den (CA5) 575 F2d 300; Scott v
Anniston (1977, ND Ala) 430 F Supp 508, 14 BNA FEP Cas 1099, 14 CCH EPD 7598,
affd in part and revd in part on other grounds (CA5) 597 F2d 897, 20 BNA FEP Cas 62,
Decisions 6135, 2 BNA FEP Cas 589; EEOC v Sears, Roebuck & Co. (1988, CA7) 839
Footnote 12. Williams v De Kalb County (1978, CA5) 577 F2d 248, 18 BNA FEP Cas
1742, 17 CCH EPD 8516, on reh (CA5) 582 F2d 2, 18 BNA FEP Cas 1749, 18 CCH
EPD 8647.
D. Affirmative Action [600-700]
Research References
29 USCS 793, 1501et seq., 1781; 38 USCS 1787, 4211, 4212; 42 USCS 1981,
2000e-2, 2000e-12
P.L. 102-166
29 CFR Parts 30, 1608; 41 CFR Parts 20, 60-1, 60-2, 60-3, 60-4, 60-20, 60- 60,
60-250, 60-741
47 Fed. Reg. 4258
ALR Digests, Civil Rights 39
5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form 87
Modjeska, Employment Discrimination Law 2d, 2:28 et seq., 6:3, 6:7, 6:11
Employment Coordinator PM-10,201 et seq., EP-27,251 et seq.
1. Voluntary Plans [600-618]
600 When an affirmative action plan is "voluntary"

View Entire Section
An employer's affirmative action plan is considered voluntary whenever the plan is not
mandated by a court order or administrative agency action, 13 regardless of whether a
union refuses to agree to the plan. 14 Nor is an affirmative action plan less voluntary
because an employer uses economic pressure in the collective bargaining process to
persuade a union to agree to affirmative action affecting seniority rights. 15
The EEOC considers an affirmative action plan to be voluntary if it is created in the
conciliation stage of federal or state administrative proceedings on a complaint. 16
Footnotes
Footnote 13. 29 CFR 1608.1(c); EEOC Compliance Manual 607.11(a)(1).
Footnote 14. Baker v Detroit (1979, ED Mich) 483 F Supp 930, 24 BNA FEP Cas 1728,
33497.
Practice References Modjeska, Employment Discrimination Law 2d, 2:28 et seq.
Footnote 15. Tangren v Wackenhut Services, Inc. (1981, CA9) 658 F2d 705, 26 BNA
601 Validity of voluntary affirmative action

View Entire Section
Go to Supplement
Voluntary affirmative action 17 is a legitimate remedial tool available to both private
and public employers, and there is no absolute prohibition in Title VII, 18 42 USCS
1981, 19
or the Constitution 20 against the implementation of an affirmative
action plan. According to the EEOC, it is Congress' intent that employers undertake
affirmative action voluntarily to improve the conditions of minorities and women, and
that they should not be exposed to liability for complying with Title VII in this fashion.
21 Furthermore, nothing in the amendments made to Title VII by the Civil Rights Act
of 1991 may be construed to affect lawful affirmative action, 22 including voluntary
affirmative action. 23 Thus, under the Civil Rights Act of 1991, affirmative action plans
that were in accordance with the law before the act was passed are not affected by the act.
24
Nonetheless, courts have found that Title VII imposes certain criteria on public and
private employers regarding their plans, 25 and EEOC has promulgated Guidelines on
Affirmative Action that provide guidance on how to develop a lawful affirmative action
plan under Title VII. 26 Furthermore, there are both Title VII and constitutional
constraints on the affirmative action which may be taken by public employers. 27
601 ----Validity of voluntary affirmative action [SUPPLEMENT]
Case authorities:
Footnotes
Footnote 17. 600.
Footnote 18. United Steelworkers of America, etc. v Weber (1979) 443 US 193, 61 L
Footnote 19. First CircuitBoston Chapter, NAACP v Beecher (1982, CA1) 679 F2d
965, 28 BNA FEP Cas 1657, 29 CCH EPD 32794, vacated on other grounds 461 US
Second CircuitInternational Brotherhood of Electrical Workers v Hartford (1980, CA2)
Fifth CircuitU.S. v Miami (1980, CA5) 614 F2d 1322, 22 BNA FEP Cas 846, 22 CCH
EPD 30822.
Sixth CircuitBaker v Detroit (1979, ED Mich) 483 F Supp 930, 24 BNA FEP Cas
EPD 33497, reh den, op withdrawn, in part, on other grounds (CA6) 712 F2d 222, 31
BNA FEP Cas 1795, 32 CCH EPD 33724, 32 CCH EPD 33847, cert den 464 US
Eighth CircuitSetser v Novack Invest. Co. (1981, CA8) 657 F2d 962, 26 BNA FEP
Cas 513, 26 CCH EPD 31995.
Footnote 20. Wygant v Jackson Bd. of Education (1986) 476 US 267, 90 L Ed 2d 260,
Footnote 22. P.L. 102-166, 116.
Footnote 23. H Rept No. 102-40, Part 1, 4/24/91, pp. 93-94; EEOC Enforcement
Guidance on Damages under CRA91, 7/7/92.
Footnote 24. Officers for Justice v Civil Service Comm., San Francisco (1992, CA9) 979
F2d 721, 92 CDOS 9052, 92 Daily Journal DAR 14970, 60 CCH EPD 41860, petition
for certiorari filed (Feb 3, 1993).
Footnote 25. 603-605.
Footnote 26. 29 CFR Part 1608, discussed at 614 et seq.
602 Which persons may benefit from an affirmative action plan

View Entire Section
If a voluntary 28 affirmative action plan meets the validity criteria, 29 it may be based
on race 30 or sex. 31
Furthermore, the EEOC expressly addresses affirmative action
for minorities, women, and ethnic groups in its Guidelines on Affirmative Action. 32
Observation: Neither the case decisions nor the EEOC's Guidelines expressly speak
to affirmative action on the basis of religion or handicap.
Observation: Although the validity of affirmative action on the basis of handicap

has not yet been decided under the Americans with Disabilities Act (ADA), since the
court ordered remedies under the ADA are comparable to those under Title VII, 33 it
may be presumed that affirmative action on the basis of handicap will be lawful if the
criteria for validity is met.
It is also possible that an affirmative action plan may address more than one protected
group under job discrimination laws and may even emphasize one over another. For
example, where a substantial workforce imbalance is found, a particular class of persons
that are underrepresented in the work force may be selected for preferential treatment,
while another representative group may be afforded less preference or no preference. 34
For instance, female police officers failed to demonstrate that the employer excluded
them from an affirmative action plan on the basis of their sex, despite the adverse impact
of that decision, since the elimination of race discrimination in the work force was a
legitimate state interest the city could constitionally chose to address first. 35
Footnotes
Footnote 28. 600.
Footnote 29. 603.
Footnote 31. Johnson v Transportation Agency, Santa Clara County (1987) 480 US 616,
Footnote 34. Hunter v St. Louis S. F. R. Co. (1981, CA8) 639 F2d 424, 24 BNA FEP Cas
1601, 25 CCH EPD 31537; Sklenar v Central Bd. of Education (1980, ED Mich) 497 F
Footnote 35. Barcume v Flint (1986, ED Mich) 638 F Supp 1230, 41 BNA FEP Cas 791,
42 CCH EPD 36978.
603 Criteria for establishing a permissible voluntary affirmative action plan

under Title VII
View Entire Section
Go to Supplement
Although Title VII does not provide an absolute bar to implementing a voluntary
affirmative action plan, 36 both private and public employers must satisfy certain
criteria in order to comply with the statute. 37 At a minimum, the employer should
have a legitimate reason, or adequate "factual predicate," for adopting a plan. 38
Furthermore, the plan should not unduly interfere with the employment opportunities of
nonminority or male workers or job applicants to the extent that their interests are
"unnecessarily trammeled". 39
Observation: Likewise, the Constitution allows public employers to implement

voluntary affirmative action plans if they are premised on a "strong basis" 40 and are
narrowly tailored to achieve the legitimate objectives, so as not to impermissibly
burden third party interests. 41
603 ----Criteria for establishing a permissible voluntary affirmative action plan

under Title VII [SUPPLEMENT]
Practice Aids: Rethinking affirmative action in the 1990s: Tailoring the cure to
remedy the disease, 47 Baylor LR 3:815 (1995).
Affirmative action and the Civil Rights Act of 1991, 44 Lab LJ 615 (1993).
Society in transition IV: affirmation of affirmative action under the Civil Rights Act of
1991, 45 Rutgers LR 903 (1993).
Gender-based affirmative action: Where does it fit in the tiered scheme of equal
protection scrutiny? 41 U Kan LR 591 (1993).
Footnotes
Footnote 36. 600.
Footnote 37. Criteria for developing a permissible voluntary affirmative action plan
under the EEOC's Guidelines on Affirmative Action are discussed at 614.
As to the "factual predicate," see 605.
As to unnecessarily trammeling the rights of nonminority or male workers or applicants,
see 607.
Footnote 40. 606.
Footnote 41. 607.
604 Evaluating permissible affirmative action in consent decrees

View Entire Section
Neither Title VII nor the Constitution absolutely prohibit compromise agreements
implementing race-conscious remedies which are agreed to prior to a judicial
determination on the merits of a case. 42
Provisions in consent decrees that provide
for the employer's adoption of an affirmative action program must be approved by a

court, like all other provisions of the decree. 43 Affirmative action contained in the
decree is viewed as voluntary. Therefore, limitations applicable to court-ordered
affirmative action as a remedy for a statutory violation 44 do not apply. More
specifically, Title VII allows consent decrees to provide relief which may benefit
individuals who were not the victims of the discriminatory practice at issue.
Additionally, courts may approve consent decrees that provide broader affirmative action
relief than they could have awarded to redress a statutory violation. 45
However, modification of an existing consent decree by a court that imposes affirmative
action at the instigation of one party over the objection of another, is considered
"court-ordered" relief, and the court is bound by Title VII's restrictions concerning that
relief. 46 Nevertheless, as amended by the Civil Rights Act of 1991, 47 Title VII
limits the circumstances under which affirmative action in a decree may be subsequently
challenged by third parties affected by the decree, but who were not represented at the
negotiations leading up to the decree, and who did not sign it. 48 Prior to the Civil
Rights Act, the Supreme Court held that a decree's affirmative action provisions could be
challenged in a separate employment discrimination action by a person who was not a
party to the decree but was adversely affected by it. 49 The Civil Rights Act of 1991
supercedes 50 this rule.
Based on Martin, the EEOC had said it would no longer adhere to a statement in its
Guidelines on Affirmative Action 51 that precludes Title VII liability based on actions
taken under a court-ordered remedy or consent decree. 52
Affirmative action requirements in consent decrees may take nontraditional forms. For
example, a decree can impose a more stringent burden of proof on an employer to justify
its decision not to fill an available position with a plan beneficiary than is normally
applicable in litigation under Title VII. Thus, one decree lawfully required the employer
to show by clear and convincing evidence that its decision not to fill a position with a
minority was nondiscriminatory. 53
Footnotes
Footnote 42. Kirkland v New York State Dept. of Correctional Services (1983, CA2) 711
Footnote 45. Local Number 93, International Asso. of Firefighters, etc. v Cleveland
(1986) 478 US 501, 92 L Ed 2d 405, 106 S Ct 3063, 41 BNA FEP Cas 139, 40 CCH
EPD 36200.
Footnote 46. Firefighters Local Union No. 1784 v Stotts (1984) 467 US 561, 81 L Ed 2d
Footnote 47. P.L. 102-166, 108.
Footnote 48. 42 USCS 2000e-2(n) (1) (A).

Footnote 49. Martin v Wilks (1989) 490 US 755, 104 L Ed 2d 835, 109 S Ct 2180, 49
Footnote 53. Lamphere v Brown University (1986, CA1) 798 F2d 532, 41 BNA FEP Cas
828, 41 CCH EPD 36434.
605 "Manifest imbalance" requirement

View Entire Section
In order to pass scrutiny under Title VII, the remedial efforts of an employer's voluntary
affirmative action plan 54 must be justified by an adequate reason, or "factual
predicate," 55 such as when minorities are clearly underrepresented in the employer's
workforce. In other words, a "manifest" or "conspicuous" imbalance must exist in
traditionally segregated job categories. 56
The extent of the imbalance need not be so severe that it supports a prima facie case of
discrimination under Title VII. 57
In determining whether an imbalance justifies taking sex or race into account in a plan, a
comparison of the percentage of minorities or women in the employer's workforce with
the percentage in the area labor market or general population is appropriate in analyzing
jobs that do not require special expertise or training. However, where a particular
position requires special training, the comparison used to support affirmative action for
that job is with those in the relevant workforce who possess the relevant qualifications.
58
The EEOC has identified three broad categories of circumstances on which voluntary
affirmative action may be based. The agency finds affirmative action is appropriate
when:
facts reveal an actual or potential adverse impact is likely to result from an existing or
contemplated employment practice; 59
it is necessary to correct the effects of prior discriminatory practices; 60
the available labor pool of qualified minorities and women for employment or
promotional opportunities has been historically limited by the actions of employers, labor
organizations, or others. 61
Footnotes
Footnote 54. 600.
606 Constitutional requirement of a "strong basis"

View Entire Section
Similar to the requirements of Title VII, 62 public employers must justify the basis for
imposing a voluntary affirmative action plan 63 that satisfies the Constitution's equal
protection clause. In the view of at least a plurality of the Supreme Court, a racial
classification in an affirmative action plan must be justified by a "compelling
governmental interest." Use of a racial classification by a legislative body cannot be
premised on a generalized assertion that it is relevant to the legislative goals. Simply
saying that a racial or similarly suspect classification is "benign" or "remedial" is not
sufficient. There must be a "strong basis" to conclude that affirmative action is
necessary. 64
The Supreme Court has not expressed a majority view on the nature of the evidence
required to establish a "strong basis" for affirmative action, but it has concluded that the
Constitution does not require a public employer's plan to be preceded by a formal judicial
finding of past discrimination. 65 However, the Court also has indicated that the
Constitution places greater restrictions on affirmative action than does Title VII. 66
Observation: In dealing with affirmative action required by licensing agencies, the

Court also gives wider constitutional latitude to affirmative action imposed by

Congress under its constitutional authority to rectify discrimination than it gives to
affirmative action imposed by state or local governments. 67
Footnotes
Footnote 62. 605.
Footnote 63. 600.
106 S Ct 1842, 40 BNA FEP Cas 1321, 40 CCH EPD 36106; Richmond v J. A. Croson
Co. (1989) 488 US 469, 102 L Ed 2d 854, 109 S Ct 706, 53 BNA FEP Cas 197, 48
CCH EPD 38578.
607 Effect of an affirmative action plan's impact on third party interests

View Entire Section
If there is a "manifest imbalance" 68 or "strong basis" 69 to support an employer's
voluntary affirmative action plan, 70 the next inquiry in determining its validity under
Title VII is whether the plan "unnecessarily trammels" the interests of non-minority or
male workers, or acts as an absolute bar to their advancement. 71
Similarly, under
the Constitution, affirmative action plans must be narrowly tailored to achieve their
goals, so as to not impermissibly burden innocent third parties. 72
In particular, the plan should not foreclose employment or promotion opportunities for
other candidates, such as white males, although employers may treat the race or sex of a
candidate as a "plus" factor in choosing among qualified applicants. The employee or
applicant who receives preferential treatment under the plan must be qualified for the job,
even if not the most qualified, since other candidates suffer less significant harm if passed
over in favor of another qualified candidate. Thus, preferential treatment given to a
female employee for a promotion, consistent with an affirmative action plan, was
permissible under Title VII even though a man was ranked higher in the overall selection
process. The employer's affirmative action selection was sustained, in part, because the
woman was qualified for the position, regardless of her standing relative to other
workers. 73
Similarly, a city's affirmative action plan that permitted race to be
considered as a "plus" factor, once an individual's qualifications for promotion were
confirmed, did not violate Title VII. The plan had no quotas, the selecting official had
discretion to choose among the top applicants, and the non-selected individuals retained
their jobs, seniority, salary, and eligibility for future promotions. 74
Employers are likewise required to assess an affirmative action plan's impact on third
parties in assessing its validity under the EEOC's Guidelines on Affirmative Action. 75
Factors involved in determining whether a plan "unnecessarily trammels" third party
interests include both the temporary nature of the plan's objectives 76 and the type of
employment decision being made. 77
Footnotes
Footnote 68. 605.
Footnote 69. 606.
Footnote 70. 600.
Annotation: Affirmative action benefitting particular employees or prospective
employees as violating other employees' rights under Federal Constitution or under
federal civil rights legislationSupreme Court cases, 92 L Ed 2d 849.
Law Reviews: Symposium: Employment Discrimination, Affirmative Action, and
Multiculturalism. 41 DePaul L. Rev. 981 (1992).
Blumrosen, The 1989 Supreme Court Rulings Concerning Employment Discrimination
and Affirmative Action: A Minefield for Employers and a Gold Mine for Their
Lawyers. 15 Empl. Rel. L.J. 175 (1989).
Labor Law-employment discriminationvoluntary affirmative action plan authorizing
sex based preferences in promotions for positions in which women are significantly
underrepresented does not violate Title VII. Johnson v Transportation Agency, Santa
Clara County, California, 107 S Ct 1442. 65 U. Det L Rev 861 (1988).
Walking the tightrope between Title VII and equal protection: Public sector voluntary
affirmative action after Johnson [Johnson v Transportation Agency, 107 S Ct 1442]
and Wygant [Wygant v Jackson Bd. of Educ., 106 Ct 1842] 20 Urb. Law. 367 (1988).
Affirmative action under the constitution and Title VII from confusion to convergence
35 UCLA L Rev 467 (1988).
Footnote 74. Higgins v Vallejo (1987, CA9) 823 F2d 351, 44 BNA FEP Cas 676, 43
CCH EPD 37293, cert den 489 US 1051, 103 L Ed 2d 579, 109 S Ct 1310, 49 BNA
Footnote 75. 618.
Footnote 76. 608.
Footnote 77. 609.
608 Effect of the duration of an affirmative action plan

View Entire Section
In deciding whether an affirmative action plan "unnecessarily trammels" third party
interests, 78 courts take into account the temporary nature of the plan's objectives. A
plan is overly burdensome on such interests, in violation of Title VII, if it is designed to
establish a certain level of minority representation in the work force, and freezes that
level forever. In such situations, the employer's action amounts to a quota with an
impermissible effect on the job opportunities of non-minority workers. The employer
may lawfully adopt a plan that seeks to attain a particular goal of minority representation,
if the goal does not establish preferential treatment for minorities over a long period of
time. 79
Thus, a plan that is carefully and flexibly drafted to permit wide-ranging
remedies to qualified applicants, for a limited time period, can be within appropriate
constitutional or statutory limits. 80
The duration of affirmative action may be excessive once goals are attained and future
efforts to maintain a balanced work force into the future are undertaken. For example, in
one case involving court-ordered affirmative action, 81 a district court exceeded its
powers by granting an injunction that required white employees to be laid off, when the
otherwise applicable seniority system would have entailed the layoff of black employees
with less seniority. 82 Similarly, a collectively bargained seniority override allowing
for the layoff of more senior whites so that less senior blacks would be retained was
constitutionally impermissible. 83
Observation: The rejection of the race-conscious preferences in layoffs in both Stotts

84 and Wygant 85 point up the distinction between permissible attainment and
impermissible maintenance of a balanced work force in an affirmative action plan.
Footnotes
Footnote 78. 607.
Footnote 79. Higgins v Vallejo (1987, CA9) 823 F2d 351, 44 BNA FEP Cas 676, 43
Footnote 80. Donaghy v Omaha (1991, CA8) 933 F2d 1448, 55 BNA FEP Cas 1547, 56
CCH EPD 40792, cert den (1992, US) 57 CCH EPD 41203).
Footnote 82. Stotts v Memphis Fire Dept. (1984, US) 467 US 561, 81 L Ed 2d 483, 104
Law Reviews: Walking the tightrope between Title VII and equal protection: Public
sector voluntary affirmative action after Johnson [Johnson v Transportation Agency,
107 S Ct 1442] and Wygant [Wygant v Jackson Bd. of Educ., 106 Ct 1842] 20 Urb.
Law. 367 (1988).
Footnote 84. Stotts v Memphis Fire Dept. (1984, US) 467 US 561, 81 L Ed 2d 483, 104
609 Effect of the type of employment decision involved in the affirmative action
taken
View Entire Section
Another factor affecting the permissible scope of affirmative action vis- a-vis third party
interests 86 is the type of employment decision involved. A plurality of the Supreme
Court has noted that the burden placed on innocent individuals by affirmative action
preferences is generally diffused throughout society when the action taken involves
hiring. In contrast, a greater burden is imposed on specific individuals when layoffs are
the subject of affirmative action. Denying a future employment opportunity is not as
"intrusive" as losing an existing job. 87
Thus, where the affirmative action plans
modified and lessened incumbent employees' protection from layoffs, the plans either
violated Title VII 88 or the Constitution. 89
Conversely, affirmative action involving hiring has been found acceptable, since the
impact on non-minority interests was relatively diffused, 90 and affirmative promotion
preferences simply postpone rather than foreclose opportunities for incumbents. A
rejected promotion candidate retains his employment and remains eligible for future
promotions. 91
A distinction has also been drawn between current and prospective employees when
determining whether a particular method of according preference will have an unduly

harsh effect on nonmembers of the preferred class. Under this analysis, employees who
are denied job opportunities by the plan's preferences are more readily identifiable than
are prospective employees. For example, a court has permitted a plan to provide
preferential treatment with regard to filling entry-level positions on construction projects
under this analysis, but refused to allow similar preferences with respect to promotions
under the plan. 92
However, this distinction between hiring and promotion
preferences under an affirmative action plan has been rejected by a court that allowed
both types to be implemented. 93
Footnotes
Footnote 86. 607.
Law Reviews: Affirmative action: Are the equal protection and Title VII tests
synonymous? 26 Duq. L Rev 295 (1988).
Walking the tightrope between Title VII and equal protection: Public sector voluntary
affirmative action after Johnson [Johnson v Transportation Agency, 107 S Ct 1442]
and Wygant [Wygant v Jackson Bd. of Educ., 106 Ct 1842] 20 Urb. Law. 367 (1988).
Footnote 90. U.S. v Paradise (1987) 480 US 149, 94 L Ed 2d 203, 107 S Ct 1053, 43
Footnote 92. International Brotherhood of Electrical Workers v Hartford (1978, DC
Conn) 462 F Supp 1271, 18 BNA FEP Cas 1338, 19 CCH EPD 9031, 85 CCH LC
11126, affd (CA2) 625 F2d 416, 22 BNA FEP Cas 1786, 23 CCH EPD 31028, cert den
31901.
Footnote 93. Baker v Detroit (1979, ED Mich) 483 F Supp 930, 24 BNA FEP Cas 1728,
33497.
610 Burden of proof when contesting the validity of an affirmative action plan
View Entire Section

When contesting the validity of an affirmative action plan under Title VII or the
Constitution, the challenger bears the ultimate burden of establishing the invalidity of the
plan.
Under Title VII, once a prima facie case of disparate treatment discrimination 94 has
been established by showing that race or sex was intentionally used in an employer's
decision, the burden shifts to the employer to demonstrate that its non-discriminatory
reason for the decision was based on an affirmative action plan. The burden then shifts to
the challenger of the plan to prove that it is a pretextual excuse for unlawful
discrimination. Although an employer may address the issue of pretext by presenting
evidence supporting the validity of its plan, 95 reliance on an affirmative action plan is
not an affirmative defense in the sense that the employer bears the burden of proving the
plan's validity. 96
Title VII, however, also states that it is the employer's burden to plead and prove that its
actions were in conformity with a written interpretation or opinion of the EEOC, 97
which would include acts taken in reliance on the EEOC's Guidelines on Affirmative
Action. 98
Observation: While it is not the employer's burden to prove the validity of an

affirmative action plan, it is the employer's burden to demonstrate compliance with the
EEOC's Guidelines on Affirmative Action if it claims to have relied on them in
formulating an affirmative action plan.
In a constitutional challenge to the exclusion of one protected group from a public
employer's affirmative action plan, a court must first decide whether the employer
intended to discriminate invidiously against that group. If the challengers show that
purposeful, invidious discrimination existed, the burden shifts to the public employer to
establish that the plan has a close and substantial relationship to important governmental
objectives. 99
Footnotes
Footnote 95. 603.
As to reliance on administrative guidance, see 297 et seq.
Footnote 98. 612.
Footnote 99. Barcume v Flint (1986, ED Mich) 41 BNA FEP Cas 783.
611 Effect of noncompliance with voluntary affirmative action

View Entire Section
It has been held that the violation 1 or conscious neglect 2 of a voluntary 3
affirmative action plan is not, in itself, a violation of Title VII. Nevertheless, the failure
to fully implement the plan can be used by a complaining party to prove that the plan did
not exist at the time of the alleged discriminatory act, or that a particular employment
decision was not made under the plan. 4
Observation: The failure to fully implement a voluntary affirmative action plan in a

settlement or conciliation agreement, or a consent decree would allow a claimant to
bypass Title VII's administrative process 5 and file suit for a breach of contract 6 or
petition the court for a contempt order. 7
Recommendation: Affirmative action plans that are part of a consent decree or other
settlement should contain an ending date and should address situations like business
changes that make completion of the plan impossible, in order to forstall as much
potential future litigation as possible.
Furthermore, noncompliance with a voluntary affirmative action plan can be used as
evidence of a violation of Title VII if that action demonstrates an intent to discriminate
against the person who was denied the plan's benefits. 8 For example, where a black
supervisor was authorized to promote the best person for all of the government agency's
objectives, including affirmative action and equal opportunity, his selection of a white
employee over an equally qualified black employee based only on his "gut feeling," was
evidence of intentional discrimination. 9
The failure to follow an affirmative action plan has also been an issue in racial
discrimination casesfiled by white claimants, where an employer attempts to justify a
minority racial preference based on the provisions of a plan. Such a defense is
unsuccessful when the plan is not followed. For example, an employer's rejection of an
obviously superior white candidate over a second-ranked minority candidate was
unjustified under an affirmative action plan that made minority hiring goals subordinate
to the selection of a "clearly superior" applicant. 10
Footnotes
Footnote 1. First CircuitWhite v Vathally (1983, DC Mass) 570 F Supp 1431, 32 BNA
Second CircuitManoharan v Columbia University College of Physicians & Surgeons

Eleventh CircuitLiao v Tennessee Valley Authority (1989, CA11) 867 F2d 1366, 49
Footnote 2. Cavallari v Stetson (1982, DC Mass) 555 F Supp 561, 32 BNA FEP Cas
1616.
Footnote 3. 600.
Footnote 4. EEOC Compliance Manual 607.3(b)(2)(i).
Forms: InterrogatoriesAffirmative action programs. 12 Federal Procedural Forms, L
Ed, Job Discrimination 45:359.
AnswerTo hiring discrimination complaintPlaintiff not qualified for
positionExercise of affirmative action plan [29 USCS 621 et seq.]. 12 Federal
Footnote 8. Fifth CircuitJones v Cleland (1978, ND Ala) 466 F Supp 34, 25 BNA FEP
Cas 390, 20 CCH EPD 30174, affd without op (CA5) 619 F2d 82, 35 BNA FEP Cas
478.
Seventh CircuitYatvin v Madison Metropolitan School Dist. (1988, CA7) 840 F2d 412,
Ninth CircuitGonzales v Police Dept., San Jose (1990, CA9) 901 F2d 758, 52 BNA
FEP Cas 1132, 53 CCH EPD 39861.
D.C. CircuitEccleston v Secretary of Navy (1988, DC Dist Col) 700 F Supp 67, 49
CCH EPD 38663.
Footnote 9. Eccleston v Secretary of Navy (1988, DC Dist Col) 700 F Supp 67, 49 CCH
EPD 38663.
Footnote 10. Maryland-National Capital Park & Planning Com. v Crawford (1986) 307
Md 1, 511 A2d 1079, 41 CCH EPD 36420.
612 Effect of following EEOC Guidelines on Affirmative Action in defending plan

View Entire Section

An employer may be relieved of Title VII liability if it undertook the challenged action in
good faith reliance on EEOC's administrative guidance. 11 The EEOC's Guidelines on
Affirmative Action are considered a "written interpretation or opinion" of the agency and
employers who have taken actions in implementing a voluntary 12 affirmative action
plan in good faith conformity with, and in reliance on those Guidelines can, under
appropriate circumstances, invoke this defense. 13
Employers can establish this affirmative defense to a Title VII violation when the
affirmative action plan and the self-analysis on which it is based 14 are written and
dated. 15 If defense of a Title VII charge is based on an unwritten affirmative action
plan, the EEOC will investigate the charge and consider the lack of a written and dated
plan and self-analysis to make it more difficult for the employer to prove the defense. 16
Recommendation: Initially taking the time to develop a written plan in conformity

with the Guidelines will decrease the potential future burdens and disruptions that may
result from answering a Title VII charge based on the implementation of the plan.
Another requirement for establishing this affirmative defense is that the plan at issue
must be current, as determined by all relevant circumstances including the progress being
made to correct the conditions identified in the self-analysis. 17
If the EEOC determines that an employer's affirmative action meets the statutory defense
of reliance on administrative guidance, it will issue a "no reasonable cause"
determination, 18 and that determination is itself an additional "written interpretation or
opinion" on which the employer may rely. 19 The affirmative defense is not
appropriate where the Commission finds that an affirmative action plan or program does
not exist, or where it is not the basis of the Title VII charge at issue. 20
Footnotes
As to reliance on administrative guidance, see 297 et seq.
Footnote 12. 600.
Footnote 13. 29 CFR 1608.1(d); 1608.2.
Footnote 15. 29 CFR 1608.4(d)(1).
Footnote 16. 29 CFR 1608.4(d)(2).
Footnote 17. 29 CFR 1608.11(c)
Footnote 18. 29 CFR 1608.10(b)(1).
Footnote 19. 29 CFR 1608.10(b)(2).

Footnote 20. 29 CFR 1608.11(b).
613 Effect of following Executive Order 11246 in defending a plan

View Entire Section
The Title VII affirmative defense involving reliance on administrative guidance that is
available under EEOC's Guidelines on Affirmative Action when implementing a
voluntary plan in conformity with the requirments of those regulations 21 is specifically
made applicable to federal contractors who operate in conformity with the rules
governing required affirmative action under Executive Order 11246 and its implementing
regulations. 22 Where such an affirmative action plan has been adopted, the EEOC will
process a complaint based on that plan by investigating whether the employing contractor
is subject to the Executive Order, and whether the plan was adopted pursuant to the Order
and is the basis of the Title VII complaint. 23 If all of those inquiries are answered
affirmatively, and the plan in question is current under Labor Department regulations (29
CFR Chapter 60) 24 and has been ordered or approved by an appropriate official of the
Department of Labor, the Commission will issue a "no reasonable cause" finding on the
Title VII charge. 25 The same action may be taken when the affirmative action plan at
issue was not previously ordered or approved if the Commission finds that it nevertheless
conforms with the affirmative defense requirements in the Guidelines, 26 or if the
agency refers it to the Department of Labor and that agency approves the plan under the
requirements of the Executive Order. 27
Footnotes
Footnote 21. 612.
Footnote 24. 29 CFR 1608.11(c).
Footnote 25. 29 CFR 1608.5(a)(1).
Footnote 26. 612.
Footnote 27. 29 CFR 1608.5(a)(2).
b. Establishing a Permissible Voluntary Plan Under EEOC's Guidelines [614-618]
614 Checklist of criteria for developing and implementing a permissible voluntary

plan under EEOC Guidelines
View Entire Section
When an employer develops a voluntary 28 affirmative action plan, the EEOC's
Guidelines on Affirmative Action require the plan to contain three essential elements:
a reasonable self analysis; 29
a reasonable basis for concluding that action is appropriate; 30
reasonable action taken in conformity with the plan. 31
The Guidelines are applied by the agency in processing discrimination claims attacking
actions taken under such plans. 32
Form Drafting Guide: The model affirmative action plans contained in Employment
Coordinator PM-10,201 et seq. may be consulted for guidance in developing a
written plan.
Footnotes
Footnote 28. 600.
Footnote 30. 617.
Footnote 31. 618.
615 Conducting a reasonable self-analysis

View Entire Section
Go to Supplement
The first step in developing a lawful voluntary 33 affirmative action plan is to determine
if there is a need for affirmative action. This may be accomplished through an
employer's "reasonable self-analysis" of its employment practices to determine whether
and why any such practices do, or tend to, exclude, disadvantage, or restrict particular
classes of individuals, or result in adverse impact or disparate treatment discrimination 34
against them, or leave the effects of prior discrimination uncorrected. 35
Observation: The end-product of this analysis should be an identification of the

classes of people that will be accorded preferential or special treatment 36 under the
plan.
Self-analysis normally involves a comparison of the percentage of employees classified
by race and sex in job categories within the employer's workforce, and their incidence in
the relevant labor market, to determine whether there is a "manifest imbalance" 37
between the two. In this way, the employer can determine whether minorities and
women are being "underutilized" in the employer's workforce. However, there is no
mandatory method for conducting a self-analysis established in the Guidelines. 38
615 ----Conducting a reasonable self-analysis [SUPPLEMENT]
Practice Aids: Weighing the risks and benefits of voluntary equal employment
auditsare they really worth it? 18 Emp Rel LJ 669 (1993).
Footnotes
Footnote 33. 600.
Footnote 34. As to adverse impact or disparate treatment theories of proof, see 2699
et seq.
Footnote 36. 618.
Footnote 37. 605.
616 Methods of conducting a reasonable self-analysis

View Entire Section
Examples of procedures an employer may follow in conducting a reasonable self-analysis
39 for purposes of developing a voluntary 40 affirmative action plan in conformity
with EEOC's Guidelines on Affirmative Action include:
techniques for complying with Executive Order 11246 and regulations and related
orders issued by the Office of Federal Contract Compliance Programs under that Order;
41
procedures required by other federal, state, or local laws or regulations prohibiting
employment discrimination;
consideration of the impact on employment practices arising from circumstances that
might be due to discrimination by others. 42
The agency's Compliance Manual also suggests that an employer may follow the
Uniform Guidelines on Employee Selection Procedures 43 in determining whether there
is adverse impact against a group protected by Title VII, based on applicant flow and
selection rates. 44
Caution: An employer attempting to follow the Guidelines in an effort to establish

Title VII immunity for actions taken under a plan that comports with the regulations 45
should be aware of the fact that only the Guidelines themselves, not the Compliance
Manual, constitute a "written interpretation or opinion" of the EEOC.
Footnotes
Footnote 39. 615.
Footnote 40. 600.
Footnote 44. EEOC Compliance Manual 607.13(c)(1)(iv).
Footnote 45. 612.
617 Determining that there is a reasonable basis for affirmative action

View Entire Section
In establishing a voluntary 46 affirmative action plan, the employer must evaluate its
self-analysis 47 to determine whether a reasonable basis exists for taking affirmative
action, in other words, whether a "manifest imbalance" exists. 48 The EEOC's
Guidelines on Affirmative Action do not require a Title VII violation to be established in
order for an employer to have a reasonable basis for taking affirmative action. 49 A
reasonable basis exists when the self-analysis indicates that an employer's policies or
practices either have or tend to have an adverse effect on employment opportunities for
minorities and women, 50 leave the effects of prior discrimination uncorrected, 51 or
result in disparate treatment. 52
A reasonable basis for affirmative action can exist without any admission by, or formal
finding of discrimination against the employer, and without regard to the possible
existence of arguable Title VII defenses. 53
Footnotes
Footnote 46. 600.
Footnote 48. 605.
Footnote 50. 29 CFR 1608.4(b)(1).
Footnote 51. 29 CFR 1608.4(b)(2).
Footnote 52. 29 CFR 1608.4(b)(3).
618 What constitutes reasonable action

View Entire Section
Another step in developing a voluntary 54 affirmative action plan in compliance with
the EEOC's Guidelines on Affirmative Action is to show that the employer has taken
reasonable action in conformity with the plan.
The Guidelines esentially differentiate the types of appropriate affirmative action into
two categories. First, if the reason for an "imbalance" 55 is due to historical restrictions
imposed on a particular group by employers, labor unions, or other persons subject to
Title VII, the regulations encourage employers and labor organizations to:
establish on-the-job or other training programs that will emphasize providing the
disadvantaged group with the skills and experience necessary to advance in trades or
professions; 56
conduct extensive and focused recruiting activity aimed at those groups; 57
eliminate selection criteria that have an unjustified adverse effect on those groups; 58
modify promotion and layoff procedures as necessary. 59

When the "imbalance" is discovered to to be due to exclusionary practices of the
employer, the Guidelines allow the plan to afford preferrential treatment to the excluded
minority, sexual, or ethnic group in the plan, including but not limited to:
recruitment programs designed to attract qualified individuals;
systematic redesigning of work or jobs to permit advancement in skill levels and
careers;
revamping selection procedures to eliminate unvalidated devices that have adverse
effects, and initating procedures to ensure that the affected groups will be represented in
the pool of candidates from which a selection will be made;
monitoring the effectiveness of the plan and making timely adjustments when
affirmative efforts have not proved successful;
establishing long and short term goals and timetables for the inclusion of qualified
persons into specific job classifications, based on their availability in the relevant labor
market. 60
The standards the EEOC will "generally apply" in determining the reasonableness of a
particular affirmative action preference are that:
the plan should be tailored to solve the identified problems, ensure that employment
systems operate fairly in the future, avoid unnecessary restrictions on opportunities for
the workforce as a whole, 61 and continue any preferential treatment only so long as
necessary to satisfy those objectives; 62
goals and timetables should be reasonably related to the effects of past discrimination,
the need for prompt elimination of adverse impact or disparate treatment,the availability
of basically qualified or qualifiable applicants, and the number of employment
opportunities expected to be available. 63
Observation: An affirmative action plan's timetables may be designed to serve a

goal- achievement or goal-retention function. For methods of according preference
that help members of the preferred class to break into a particular job category, the
time limits set on the use of those methods should reflect a reasonable assessment of
the speed with which goals can be expected to be achieved. Methods of according
preference to assist members of the preferred class in avoiding layoffs should reflect a
reasonable assessment of the time when that class as a group, and other workers as a
group, will be in a substantially equivalent position with respect to the likelihood of
being laid off under established, unbiased layoff procedures.
The agency's Compliance Manual also suggests some specific forms of affirmative action
an employer may take, including:
where the employer's work site is located away from minority residential areas, either
providing daily transportation at no or minimal cost, or relocation assistance to affected
employees; 64
child care at free or low cost day care facilities at the workplace, or assistance to
employees in setting up cooperative day care programs at other locations; 65
career counseling to increase employees' understanding of the employer's employment
needs, their own employment opportunities, and training that they can obtain on their
own. 66
Caution: An employer attempting to follow the Guidelines in an effort to establish

Title VII immunity for actions taken under a plan that comports with the regulations 67
should be aware of the fact that only the Guidelines themselves, not the Compliance
Manual, constitute a "written interpretation or opinion" of the EEOC.
Footnotes
Footnote 54. 600.
Footnote 55. 617.
Footnote 56. 29 CFR 1608.3(c)(1).
Footnote 57. 29 CFR 1608.3(c)(2).
Footnote 58. 29 CFR 1608.3(c)(3).
Footnote 59. 29 CFR 1608.3(c)(4).
Footnote 60. 29 CFR 1608.4(c)(1).
Footnote 61. 607.
Footnote 62. 29 CFR 1608.4(c)(2)(i).
Footnote 63. 29 CFR 1608.4(c)(2)(ii).
Footnote 64. EEOC Compliance Manual 607.15(f)(5).
Footnote 67. 612.
2. Mandatory Plans by Government Contractors [619- 691]
(1). Overview [619]
619 Federal laws requiring affirmative action

View Entire Section
Go to Supplement
Executive Order 11246 and several federal laws impose affirmative action requirements
on government contractors. Under Executive Order 11246, all nonexempt contractors 68
must take affirmative action to ensure that applicants are employed, and that employees
are treated during employment, without regard to race, color, religion, sex, or national
origin. 69 Covered nonconstruction contractors are required to file a written
affirmative action plan 70 and to establish affirmative action goals and timetables. 71
Construction contractors are required to include an affirmative action notice in all
solicitations. 72
Affirmative action required under Executive Order 11246 does not violate the U.S.
Constitution. 73
The Rehabilitation Act of 1973 requires all covered government contractors to take
affirmative action to employ and advance qualified individuals with handicaps, 74 and
the Vietnam Era Veterans Readjustment Assistance Act (VEVRA) requires contractors to
take affirmative action to employ and advance "qualified special disabled veterans" and
Vietnam-era veterans. 75 Preparation of affirmative action plans may be required under
the Rehabilitation Act 76 and VEVRA. 77
The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) is
responsible for the administration and enforcement of all of these affirmative action
obligations and may impose sanctions on contractors who fail to comply. 78
State aspects: Employers that seek to do business with a state government or that
become involved in state government contracts may be required to undertake
affirmative action measures and to formulate and submit written affirmative action
plans by some state job discrimination laws. 79
619 ----Federal laws requiring affirmative action [SUPPLEMENT]
Regulations:
Footnotes
Footnote 69. Ex Or 11246, 202(1).
Annotation: Construction and operation of "equal opportunities clause" requiring
pledge against racial discrimination in hiring under construction contract, 44 ALR3d
1283.
Practice References Modjeska, Employment Discrimination Law 2d, 6:3, 6:7, 6:11.
Forms: Complaint, petition or declarationViolation of Equal Employment
Opportunity clause in building and construction contractFor declaratory and other
relief. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form 87.
Footnote 70. 626.
Footnote 72. 621.
Footnote 73. Contractors Asso. of Eastern Pennsylvania v Secretary of Labor (1981,
Footnote 76. 41 CFR 60-741.5(a).
Footnote 77. 41 CFR 60-250.5(a).
Footnote 78. As to sanctions, see 2015 et seq.
Footnote 79. These laws are noted and discussed in Employment Coordinator
EP-27,251 et seq.
(2). Affirmative Action Required by Construction Contractors Under Executive
Order 11246 [620-625]
620 Checklist of construction contractor obligations

View Entire Section
Go to Supplement
Construction contractors subject to Executive Order 11246 must:
include a notice detailing the contractor's equal employment opportunity responsibilities
in all solicitations for offers and bids on all covered contracts; 80
meet the established goals and timetables for minority and female employment in the
applicable trade; 81
promise to take specified affirmative action, 82 either alone or through participation in
a voluntary association 83 or "Hometown Plan" if certain conditions are met. 84
These obligations must be satisfied despite other laws that may establish different
compliance standards or require the hiring of local or area residents, 85 and despite
obligations under a collective bargaining agreement or a union's failure to refer minorities
or women under that agreement. 86 Furthermore, a contractor cannot enter into a
subcontract with a person or firm that has been debarred from government contracts
under the Executive Order. 87
written plan.
620 ----Checklist of construction contractor obligations [SUPPLEMENT]
Regulations:
In 1992, the Office of Federal Contract Compliance Programs issued (see 57 Fed Reg
52592) to federal contractors and subcontractors a policy statement regarding 41 CFR
Part 60-2 to the effect that the detailed occupational data from the 1990 census, Equal
Employment Opportunity Special File, is to be used in affirmative action programs
beginning January 1, 1993.
Footnotes
Footnote 80. 621.
Footnote 81. 622.
Footnote 82. 623.

Footnote 83. 624.
Footnote 84. 625.
Footnote 85. 41 CFR 60-4.3(a)(15).
Footnote 86. 41 CFR 60-4.3(a)(5).
Footnote 87. 41 CFR 60-4.3(a)(11).
621 Required EEO notice

View Entire Section
A construction contractor subject to Executive Order 11246 must include a notice
committing it to equal employment opportunity (EEO) in all solicitations for offers and
bids on all federal and federally assisted construction contracts and subcontracts
exceeding $10,000 that are to be performed in geographical areas designated by the
Director of the OFCCP. Inclusion of that notice is also required in all:
grants, contracts, subcontracts, loans, insurance, or guarantees involving federally
assisted construction; 88
construction agreements necessary to the performance of a nonconstruction contract; 89
solicitations for construction contracts involving "Hometown Plans". 90
This EEO notice must:
list the established goals and timetables for minority and female participation in each
trade, 91 expressed in the percentages of hours worked, for its aggregate work force in
each trade for construction work in the "covered area," that is, the geographical area
where the contract is to be performed;
indicate that the contractor's compliance with the Executive Order is based on its
nondiscrimination 92 and affirmative action obligations, including attempts to meet
established goals;
state that the transfer of minority or female employees or trainees to another contractor,
or between projects, solely to meet the established goals, is a violation of the contract and
the Executive Order. 93
The OFCCP considers the EEO notice to be part of every solicitation, contract, and
subcontract, whether or not it is physically incorporated in those documents. 94
Footnotes
Footnote 88. 41 CFR 60-4.2(a).
Footnote 89. 41 CFR 60-4.2(b).
Footnote 91. 622.
Footnote 92. 619.
Footnote 93. 41 CFR 60-4.2(d).
1283.
622 Goals and timetables requirement

View Entire Section
The goals and timetables for minority and female utilization in a construction contractor's
required EEO notice under Executive Order 11246 95 are issued by the OFCCP
Director, based on the appropriate work force, demographic, and other relevant data. The
goals and timetables cover construction projects or construction contracts performed in
the "covered area", 96 including each construction trade in that area, 97 whether or not
the work is under a federal or federally assisted construction contract. These goals and
timetables are published in the Federal Register. 98
Although the OFCCP has established separate goals for minorities and women, the
contractor must provide equal employment opportunity and take effective affirmative
action for all men and women in a minority group, and all women whether they are
minorities or not. A contractor that employees one group in a substantially disparate
manner, even if it has achieved its goals for another group, can be found in violation of
the Executive Order. 99
Furthermore, goals and timetables, as well as other affirmative action obligations 1 must
not be used to discriminate based on race, color, religion, sex, or national origin. 2
Observation: A Title VII challenge based on legal actions taken in conformity with
good faith efforts to achieve a goal established by the Executive Order may be
defended under the EEOC's Guidelines on Affirmative Action. 3
Footnotes
Footnote 95. 621.
Footnote 96. 621.
Footnote 99. 41 CFR 60-4.3(a)(9).
1283.
Footnote 1. 623.
Footnote 2. 41 CFR 60-4.3(a)(10).
623 Other required affirmative action

View Entire Section
A construction contractor subject to Executive Order 11246 must not only attempt to
satisfy the required goals and timetables, 4 but must also take affirmative action steps
specified under the OFCCP's regulations. 5 Compliance with these steps depends on
the strength of the contractor's efforts to achieve maximum results. These actions must
be documented fully and must include:
(1) ensuring and maintaining a work environment free of harassment, intimidation, and
coercion at all sites and facilities where employees are assigned, assigning two or more
women to each construction project where possible, and making all on-site supervisors
aware of their responsibility to carry out these obligations; 6
(2) establishing and maintaining a current list of minority and female recruitment
services, notifying them and community organizations in writing when employment
opportunities are available, and retaining a record of their responses; 7
(3) keeping a current file of the names, addresses, and telephone numbers of minority and
female off-the-street applicants, and referrals from unions, recruitment sources, and
community organizations, and documenting the actions taken and the reasons individuals
sent to a union hall for referral were not referred to the contractor by the union, or if
referred, why they were not employed; 8

(4) notifying the OFCCP in writing immediately when a union fails to refer a minority or
woman sent by the contractor, or when a union is impeding the contractor's efforts to
meet its obligations; 9
(5) providing on-the-job training opportunities or participating in training programs for
minorities and women in in the "covered area"; 10 11
(6) notifying unions and training programs of its equal employment opportunity (EEO)
policy, 12 including it in policy manuals and collective bargaining agreements,
reviewing it with all managers and minority and female employees at least once a year,
and posting it on accessible bulletin boards at each location where construction work is
performed; 13
(7) reviewing the EEO policy and affirmative action obligations at least annually with all
employees responsible for employment decisions, with on- site supervisors before
construction work starts, and keeping a written record of all such meetings; 14
(8) including the EEO policy in all news media advertising, including minority and
female news media, and discussing it with other contractors and subcontractors; 15
(9) directing recruitment efforts at minority and female applicants, through community
organizations, schools, and minority and female recruitment organizations, and
describing screening procedures, tests, and vacancies in recruitment notices to such
organizations at least one month before applications are accepted; 16
(10) encouraging minority and female employees to recruit other minorities and women,
and providing reasonable after-school, summer, and vacation employment to minority
and female youth; 17
(11) validating tests and other selection devices when legally obligated to do so; 18
(12) evaluating minority and female employees for promotional opportunities at least
annually, and encouraging them to prepare for such opportunities through training; 19
(13) monitoring all personnel and employment activities to ensure that EEO policy and
affirmative action obligations are being carried out, and that seniority practices, job
classifications, work assignments, or other personnel practices are not having a
discriminatory effect; 20
(14) ensuring nonsegregation of all company activities and facilities, with the exception
of separate or single-user toilets and necessary changing facilities, to permit sexual
privacy; 21
(15) retaining records of all solicitations for subcontracts from minority and female
construction contractors, suppliers, business associations, and contractor associations; 22
(16) reviewing supervisors' adherence to and performance under the EEO policy and the
affirmative action obligations, at least annually. 23
A construction contractor may meet one or more of these affirmative action obligations
by participating in either a voluntary association that works to benefit minorities and

women, 24 or in a "Hometown Plan". 25
Footnotes
Footnote 4. 622.
1283.
Footnote 6. 41 CFR 60- 4.3(a)(7)(a).
Footnote 7. 41 CFR 60-4.3(a)(7)(b).
Footnote 8. 41 CFR 60-4.3(a)(7)(c).
Footnote 9. 41 CFR 60-4.3(a)(7)(d).
Footnote 10. 621.
Footnote 11. 41 CFR 60- 4.3(a)(7)(e).
Footnote 12. 619.
Footnote 13. 41 CFR 60-4.3(a)(7)(f).
Footnote 14. 41 CFR 60- 4.3(a)(7)(g).
Footnote 15. 41 CFR 60-4.3(a)(7)(h).
Footnote 16. 41 CFR 60- 4.3(a)(7)(i).
Footnote 17. 41 CFR 60-4.3(a)(7)(j).
Footnote 18. 41 CFR 60-4.3(a)(7)(k).
Footnote 19. 41 CFR 60- 4.3(a)(7)(l).
Footnote 20. 41 CFR 60-4.3(a)(7)(m).
Footnote 21. 41 CFR 60- 4.3(a)(7)(n).
Footnote 22. 41 CFR 60- 4.3(a)(7)(o).
Footnote 23. 41 CFR 60-4.3(a)(7)(p).
Footnote 24. 624.
Footnote 25. 625.
624 Meeting affirmative action obligations through membership and

participation in a voluntary association
View Entire Section
A construction contractor may fulfill one or more of its affirmative action obligations
toward minorities and women under Executive Order 11246 26 through its participatory
efforts in a voluntary association if the contractor:
makes every effort to assure that the association has a positive impact on minority and
female employment in the industry;
ensures that the benefits of the association's program are reflected in the contractor's
minority and female workforce participation;
makes a good faith effort to meet its individual goals and timetables; 27
provides access to documentation demonstrating the effectiveness of actions taken on its
behalf by the association.
The failure of such an association to fulfill a contractor's obligation does not excuse a
contractor's noncompliance. 28
Footnotes
Footnote 26. 623.
Footnote 27. 622.
Footnote 28. 41 CFR 60-4.3(a)(8).
625 Meeting affirmative action obligations through participation in a "Hometown

Plan"
View Entire Section
A construction contractor subject to Executive Order 11246 can fulfill its affirmative
action obligations toward minorities and women 29 by complying with obligations
imposed under a "Hometown Plan" approved by the OFCCP. The contractor may
participate in a "Hometown Plan" either individually or through an association that works
to advance minority and female employment. 30 "Hometown Plans" are agreements
between an area's contractors, unions, and local minority community that are developed
to assure compliance with the Executive Order. 31 Participants in "Hometown Plans"
must be able to demonstrate their participation and document their compliance with the
Plan's provisions. 32
A contractor is not participating in a "Hometown Plan" for a particular trade if:
it no longer is a signatory to the Plan; 33
it signed the Plan, but is not a party to a collective bargaining agreement for the trade;
34
it signed the Plan, but is party to a collective bargaining agreement with unions who
have not signed the Plan; 35
it signed a Plan and is party to a collective bargaining agreement, but it and the union
have not jointly executed a specific commitment to minority and female goals and
timetables and incorporated it into the Plan; 36
it signed a Plan and is party to a collective bargaining agreement, but neither it nor the
union have made a good faith effort to comply with their obligations under the Plan; 37
it is participating in a Plan which is no longer acceptable to the OFCCP 38 because the
agency terminated or withdrew its approval; 39
the Plan has expired and has not been replaced by another approved Plan. 40
Contractor or subcontractors participating in a "Hometown Plan" must make a good faith
effort to meet the established goals and timetables for each trade participating in the Plan,
41 and failure to do so is not excused by the compliance of other contractor or
subcontractor participants. 42
Footnotes
Footnote 29. 623.
Footnote 33. 41 CFR 60-4.5(a)(1).
Footnote 34. 41 CFR 60- 4.5(a)(2).
Footnote 35. 41 CFR 60-4.5(a)(3).
Footnote 36. 41 CFR 60-4.5(a)(4).

Footnote 37. 41 CFR 60- 4.5(a)(6).
Footnote 38. 41 CFR 60-4.5(a)(5).
Footnote 41. 622.
Footnote 42. 41 CFR 60- 4.5(a).
(3). Affirmative Active Required by Nonconstruction Contracts Under Executive
Order 11246 [626-669]
(a). In General [626, 627]
626 Requiring an "establishment" to submit a written affirmative action plan

View Entire Section
Nonconstruction contractors required to submit a written affirmative action program for
minorities and women under Executive Order 11246 must submit a program designed to
achieve prompt and full utilization of minorities and women. 43 The plan must meet
the OFCCP's specifications, 44 and be submitted by each "establishment" 45 within
120 days from the start of the contract. 46
An acceptable written affirmative action plan must analyze the contractor's deficiencies
in utilizing minorities and women, 47 establish goals and timetables 48 to correct such
deficiencies, and aim at prompt and full minority and female utilization throughout the
workforce. 49 A nonconstruction contractor's compliance status is judged by reviewing
its program's contents, the extent of its adherence to the program, and its "good faith
efforts" 50 to make the program work. Compliance is not solely evaluated by whether
the goals and timetables are achieved. 51
An affirmative action program must be summarized, updated annually, and submitted to
the OFCCP on the program's anniversary date each year, in a format prescribed by the
agency. 52
Footnotes
Footnote 43. 41 CFR 60-2.10.

Footnote 44. 628.
Footnote 45. 627.
Footnote 46. 41 CFR 60-1.40.
Footnote 47. 654.
Footnote 49. 41 CFR 60-2.10.
Footnote 50. 657.
Footnote 51. 41 CFR 60-2.15.
Footnote 52. 41 CFR 60- 2.14.
627 What is an "establishment"

View Entire Section
The OFCCP has not defined the "establishment" of a nonconstruction contractor that is
required to submit a written affirmative action plan under Executive Order 11246. 53
Based on the definition of an "establishment" contained in various labor statutes,
including the Fair Labor Standards Act, the Secretary of Labor held that each physically
separate facility is an "establishment" that is required to submit a written plan. However,
facilities may be grouped and treated as one "establishment" if they are in the same labor
market or recruiting area, or if they are so small that meaningless goals of a fraction of a
person would otherwise result. 54
Although the separate "establishment" requirement literally means that a contractor with
facilities located throughout the U.S. has to submit a written affirmative action plan for
each one, contractors can negotiate agreements with the OFCCP on nationwide
affirmative action program formats. 55
Footnotes
Footnote 53. 626.
Footnote 54. Dept. of Labor v Coldwell, Banker & Co. (1987, US DOL) 44 BNA FEP
Cas 850.
Footnote 55. 41 CFR 60-60.3.
(b). Contents of Written Affirmative Action Plan [628- 669]

(i). In General [628]
628 Generally
View Entire Section
The ingredients of a written affirmative action plan required for nonconstruction
contractors under Executive Order 11246 56 can be divided into four major divisions.
The first division is a narrative description explaining:
the contractor's equal employment opportunity policy in all personnel actions; 57, 58
the contractor's procedures for formally disseminating the policy internally and
externally; 59
whether the contractor has the active support of local and national community action
and service programs designed to improve minority and female employment
opportunities; 60
who is responsible for implementing the affirmative action program. 61
the contractor's design and implementation of internal audit and reporting systems to
measure the effectiveness of the total affirmative action program. 62
The second major division is a statistical analysis of the contractor's minority and female
workforce. This involves a "workforce analysis" of the minorities and women employed
by the contractor, 63 which is be reviewed by the OFCCP for indications of potential
discrimination, 64 and a "utilization analysis" of areas where the contractor is deficient
in using minority and female employees. 65
The third major division of a written plan is the establishment of goals and timetables to
correct minority and female underutilization. 66
The fourth major division is a narrative self-analysis in which the contractor must:
identify problem areas, or deficiencies, by organizational units and job groups; 67
establish goals and objectives responsive to identified problem areas; 68
report on the development and execution of action-oriented programs designed to
eliminate problem areas and attain established goals and objectives; 69
promise compliance with the OFCCP's Sex Discrimination Guidelines; 70

The inclusion of all of the foregoing components is mandatory in an acceptable
affirmative action plan. A plan that does not contain those components cannot be
approved by the OFCCP. 71
written plan.
Footnotes
Footnote 56. 626.
Footnote 57, 58. 41 CFR 60-2.13(a), discussed at 629 and discussed at 630.
Footnote 59. 41 CFR 60-2.13(b), discussed at 631.
Footnote 60. 41 CFR 60-2.13(i), discussed at 632.
Footnote 61. 41 CFR 60-2.13(c), discussed at 633 and discussed at 634.
Footnote 62. 41 CFR 60-2.13(g), discussed at 635.
Footnote 63. 41 CFR 60-2.11(a), discussed at 636-642.
Footnote 65. 41 CFR 60-2.11.
As to the utilization analysis, see 643 et seq.
Footnote 66. 41 CFR 60-2.13(e), discussed at 655 et seq.
Footnote 67. 41 CFR 60-2.13(d), discussed at 662-664.
Footnote 68. 665.
Footnote 69. 41 CFR 60-2.13(f), discussed at 679.
Footnote 70. 41 CFR 60-2.13(h), discussed at 669.
Footnote 71. Legal Aid Soc. v Brennan (1979, CA9) 608 F2d 1319, 21 BNA FEP Cas
(ii). Description of EEO Policy Commitment and Implementation [629-635]
629 Required inclusion of EEO policy statement

View Entire Section
Go to Supplement
A written affirmative action plan required under Executive Order 11246 72 must state
that the contractor is committed to a policy of equal employment opportunity (EEO). 73
The statement should indicate the chief executive officer's attitude on EEO, assign
overall responsibility for the policy, 74 provide for a reporting and monitoring
procedure, 75 and be signed, dated, and reaffirmed annually. 76
The policy statement must include specified commitments, 77 and procedures for its
external and internal dissemination. 78
629 ----Required inclusion of EEO policy statement [SUPPLEMENT]
Practice Aids: Establishing an equal employment opportunity compliance program, 19
ALI ABA J 3:21-48 (1995).
Footnotes
Footnote 72. 626.
Footnote 73. 41 CFR 60-2.13(a).
Footnote 75. 41 CFR 60- 2.20(a).
As to a reporting a monitoring procedure, see 635.
Footnote 76. OFCCP Federal Contract Compliance Manual 2GO8.
Footnote 77. 630.
Footnote 78. 631.
630 Required EEO policy commitments

View Entire Section
The equal employment opportunity (EEO) policy required in a nonconstruction

contractor's written affirmative action plan 79 must contain commitments to:
recruit, hire, train, and promote persons in all job titles, without regard to race, color,
religion, sex, or national origin, except where sex is a bona fide occupational
qualification;
base employment decisions so as to further the principle of equal employment
opportunity;
impose only valid requirements for promotional opportunities;
ensure that all personnel actions, including but not limited to compensation, benefits,
transfers, layoffs, recall, company sponsored training, education, tuition assistance, and
social and recreational programs, will be administered without regard to race, color,
religion, sex, or national origin; 80
recruit female applicants for jobs from which they have been previously excluded;
include women in management trainee and other training programs. 81
Footnotes
Footnote 79. 629.
Footnote 80. 41 CFR 60-2.20(a)(1)- (4).
Footnote 81. 41 CFR 60-20.6(a)-(c).
631 Dissemination of EEO policy

View Entire Section
The EEO policy required in a nonconstruction contractor's written affirmative action plan
82 must describe the procedures the contractor uses for disseminating the policy, both
internally and externally. 83
The OFCCP suggests that a contractor may internally disseminate its EEO policy in the
following ways:
include it in a policy manual;
publicize it in a company newspaper, magazine, annual report, or other company media;
conduct special meetings with executives, managers, supervisors, and other employees
to explain the policy's intent and their individual responsibilities for effective
implementation, including a clarification of the chief executive officer's attitude;

discuss it in employee orientation and management training programs;
meet with union officials to inform them of the policy, and request their cooperation;
include nondiscrimination clauses in all union agreements and review all contractual
provisions for potential discrimination;
publish articles in company publications covering EEO programs, progress reports,
promotions of minority and female employees and the like;
post it on company bulletin boards;
picture minorities and nonminorities in product or employee handbooks or similar
publications;
communicate the affirmative action program's existence and benefits to employees. 84
Observation: Dissemination of program contents to employees and applicants is not

required under Executive Order 11246, although it is required upon request under the
Rehabilitation Act and the Vietnam Era Veterans Readjustment Act. 85
The OFCCP suggests the following means for a contractor to externally disseminate its
EEO policy:
inform all recruiting sources verbally and in writing of the policy, asking them to
actively recruit and refer minorities and women for all positions listed;
incorporate it in all purchase orders, leases, contracts, and bids covered by Executive
Order 11246;
notify minority and women's organizations, community agencies, community leaders,
and secondary schools and colleges of the policy, preferably in writing;
communicate the existence and benefits of the affirmative action program to applicants;
display both minorities and nonminority men and women in consumer or recruitment
ads;
send written notification of it to all subcontractors, vendors and suppliers, requesting
appropriate action by them. 86
Recommendation: A contractor's adherence to all or most of the OFCCP's

recommendations can help establish its "good-faith efforts" 87 to make the program
work, thereby contributing to a favorable compliance evaluation. 88
Footnotes
Footnote 83. 41 CFR 60-2.13(b).

Footnote 84. 41 CFR 60-2.21(a)(1)-(11).
Footnote 85. 674.
Footnote 86. 41 CFR 60-2.21(b)(1)-(6).
Footnote 87. 657.
Footnote 88. 626.
632 Contractor's support of national and local employment opportunity

programs
View Entire Section
A contractor's active support of national and local community action and service
programs designed to improve employment opportunities for minorities and women is an
essential ingredient of a required written affirmative action plan under Executive Order
11246. 89
The OFCCP suggests that a contractor may demonstrate such support in the following
ways:
appoint key managers to serve on merit employment councils, community relations
boards, and similar organizations;
encourage active participation by minority and female employees in youth motivation
programs;
support vocational guidance institutes, vestibule training programs, and similar
activities;
assist secondary schools and colleges in programs designed to enable minority and
female graduates to compete in the employment market on a more equitable basis;
publicize achievements of minority and female employees in local and minority news
media;
support programs developed by organizations concerned with employment opportunities
for minorities or women. 90
Footnotes
Footnote 89. 628.

Footnote 90. 41 CFR 60-2.26(a)-(f).
633 Appointment of an affirmative action officer responsible for plan

implementation
View Entire Section
A written affirmative action plan required by nonconstruction contractors subject to
Executive Order 11246 91 must designate someone to direct or manage its equal
opportunity program. 92 The plan must not only identify the person responsible for its
implementation, but must also describe how the policy will be implemented. 93 The
responsible individual is often referred to as an EEO officer, who must be an executive or
a top management official, and must be given top management support and staffing
necessary to execute his plan responsibilities. Implementation of the affirmative action
program can be the EEO officer's sole responsibility, depending on the size and
geographical alignment of the company. 94
The EEO officer's minimal responsibilities include:
developing policy statements, affirmative action programs, and internal and external
communication techniques;
assisting in the identification of areas of potential discrimination; 95
assisting line managers in solving problems; 96
designing and implementing audit and reporting systems; 97
serving as liaison between the contractor and enforcement agencies, minority
organizations, women's organizations, and community action groups concerned with
minority and female employment opportunities;
informing management of the latest EEO developments. 98
Footnotes
Footnote 91. 626.
Footnote 92. 41 CFR 60-2.22(a).
Footnote 93. OFCCP Federal Contract Compliance Manual 2G10.
Footnote 94. 41 CFR 60-2.22(a).

Footnote 96. Plan implementation responsibilities required of line managers are
discussed at 634.
Footnote 97. 635.
Footnote 98. 41 CFR 60-2.22(a)(1)-(7).
634 Plan responsibilities of line managers

View Entire Section
A written affirmative action plan required by nonconstruction contractors subject to
Executive Order 11246 99 must discuss the plan implementation responsibilities of line
managers, which must include but are not limited to:
assisting in identifying areas of potential discrimination and establishing goals and
objectives; 1
active involvement with local minority and women's organizations, community action
groups, and community service programs;
periodically auditing training programs and hiring and promotion patterns; 2
conducting regular discussions with local managers, supervisors and employees to
ensure that the contractor's EEO policies 3 are being followed;
reviewing employee qualifications to ensure that minorities and women are given full
opportunities for transfers and promotions;
engaging in career counseling of employees;
periodically auditing each "establishment" 4 to insure proper display of EEO posters,
desegregated facilities and company housing, comparability of dormitories, locker rooms,
and rest rooms for both sexes, and encouragement of minority and female employee
participation in all company-sponsored educational, training, recreational, and social
activities;
informing supervisors that their performance is evaluated partially on the basis of their
equal employment opportunity efforts and results;
preventing harassment of employees placed through affirmative action efforts. 5
Footnotes
Footnote 99. 626.

Footnote 2. 635.
Footnote 3. 629.
Footnote 4. 627.
Footnote 5. 41 CFR 60-2.22(b)(1)-(9).
635 Designing and implementing an internal audit and reporting system

View Entire Section
A written affirmative action program required for nonconstruction contractors under
Executive Order 11246 must include development and implementation of an internal
audit and reporting system to measure the program's effectiveness, 6 including specific
procedures for monitoring the progress made on goals 7 and for analyzing employment
activity. 8 "Unit" 9 managers must report formally and regularly on the degree to
which goals and timetables are being met. 10 These reports should be reviewed with all
levels of management and recommendations for improving unsatisfactory performance
should be made to top management. 11
An internal auditing and reporting system must monitor referrals, placements, transfers,
promotions, and terminations at all levels to insure nondiscrimination. 12
Footnotes
Footnote 6. 41 CFR 60-2.13(g).
Footnote 8. OFCCP Federal Contract Compliance Manual 2G14(a).
Footnote 9. 640.
Footnote 10. 41 CFR 60- 2.25(b).
Footnote 11. 41 CFR 60- 2.25(c)-(d).
Footnote 12. 41 CFR 60-2.25(a).
(iii). Statistical Analysis of Contractor's Minority and Female Workforce [636-642]
636 Workforce analysis requirement

View Entire Section
A written affirmative action plan required for nonconstruction contractors subject to
Executive Order 11246 must contain a workforce analysis of the number of minorities
and women employed by the contractor, as a prelude to the contractor's performance of a
utilization analysis 13 and the establishment of any necessary goals and timetables. 14
This analysis is in a census-type format consisting of a listing of each job title, 15
ranked by pay 16 within each "organizational unit", 17 and a separate listing of
separate work units or "lines of progression" 18 within an "organizational unit." For
each job title the analysis must contain, in addition to the pertinent wage rate or salary
range:
the total number of incumbents;
the total number of male and female incumbents;
the total number of male and female incumbents classified by minority or race. 19
Footnotes
Footnote 15. 638.
Footnote 16. 639.
Footnote 17. 640.
Footnote 18. 641.
Footnote 19. 41 CFR 60-2.11(a).
For a discussion of how OFCCP uses the workforce analysis to identify potential
637 At which "establishment" must a job be evaluated

View Entire Section

A workforce analysis 20 usually must include every job located at the "establishment"
21 submitting the plan. However, the analysis of a contractor's corporate or
intermediate level office must also include all jobs selected at those offices, even if
located in subordinate or lower-level establishments. 22 These jobs must still be
analyzed in the workforce analysis of the "establishment" in which they are located, so
that its complete workforce structure is readily apparent from the analysis. Therefore,
these jobs are analyzed twice. 23
Footnotes
Footnote 20. 636.
Footnote 21. 627.
Footnote 22. OFCCP Federal Contract Compliance Manual 2C05(b).
Footnote 23. OFCCP Federal Contract Compliance Manual 2C05(d).
638 Job titles must be specific

View Entire Section
A workforce analysis 24 must adhere to job titles as they appear in payroll records and
applicable collective bargaining agreements. Indications that jobs have not been listed by
title include the use of plurals in the titles, the use of broad general titles such as
"manager" or "machine operator," or multiple pay ranges 25 existing for one title. 26
Footnotes
Footnote 24. 636.
Footnote 25. 639.
639 Ranking job titles by pay

View Entire Section

In a workforce analysis, 27 job titles within an "organizational unit" 28 must be ranked
by pay, either from the lowest to the highest pay, 29 or from highest to lowest pay. 30
The contractor may use coded pay data, as long as the OFCCP has access to the code
during onsite review, the codes are consistent across departmental or "unit" lines, and are
in pay range order within each "unit." Furthermore, the analysis must list the codes used
in wage or salary order with the highest and lowest codes so labelled. 31
Footnotes
Footnote 27. 636.
Footnote 28. 640.
Footnote 29. 41 CFR 60-2.11(a).
Footnote 30. OFCCP Federal Contract Compliance Manual 2G01(b)(1).
640 What is an "organizational unit"

View Entire Section
An "organizational unit" within which job titles 32 are to be ranked by pay 33 in a
workforce analysis 34 must be identifiable, and must reflect the contractor's
organizational structure. If the contractor provides an organizational chart as part of
supporting documentation, it will be compared to the "units" used in the analysis. 35
Footnotes
Footnote 32. 638.
Footnote 33. 639.
Footnote 34. 636.
Footnote 35. OFCCP Federal Contract Compliance Manual 2G01(c).
641 "Lines of progression" in a workforce analysis

View Entire Section

A workforce analysis 36 must list separate "lines of progression" within an
"organizational unit" 37 by indicating the order of jobs in the line through which an
employee could advance. When there are no formal "lines of progression" or usual
promotional sequences, job titles 38 must be listed by department, job families, or
disciplines, ranked by pay. 39 If there are separate work units or "lines of progression"
within a department, a separate list for each work unit or "line" must be created and must
include "unit" supervisors. 40
A "line of progression" may be further defined with reference to the OFCCP's definition
of "progression line charts," which list job titles in a broad job family, generally starting
with less difficult and lower paying jobs, and progressing to more difficult, higher paying
jobs. 41 "Lines of progression" can also be identified from collective bargaining
agreements and organizational charts. 42
Footnotes
Footnote 36. 636.
Footnote 37. 640.
Footnote 38. 638.
Footnote 39. 639.
Footnote 40. 41 CFR 60-2.11(a).
Footnote 41. OFCCP Federal Contract Compliance Manual 1-60.75.
Footnote 42. OFCCP Federal Contract Compliance Manual 2G01(e).
642 Counting employees by race or ethnicity

View Entire Section
A workforce analysis 43 must identify every black, Spanish-surnamed American,
American Indian, or Oriental employee in each job title. 44 The OFCCP also advises
contractors to list whether an employee is an Alaskan native, an Asian or Pacific Islander,
a black not of Hispanic origin, an Hispanic, or a white not of Hispanic origin. 45
Observation: The designations contained in the Compliance Manual re consistent

with the race and ethnic classifications used by the EEOC in the EEO-1 report that is
required to be filed both under Executive Order 11246 and Title VII.
The EEO-1 report a contractor is required to file under the Executive Order 46 states
that minority group identification may be accomplished by a supervisor's visual survey or
can be compiled from employee personnel records. 47
Footnotes
Footnote 43. 636.
Footnote 44. 41 CFR 60-2.11(a).
Footnote 46. As to the EEO-1 report, see 1913.
Footnote 47. Employer Information Report EEO-1 Instruction Booklet, Appendix, No.4.
(iv). Utilization Analysis of Contractor's Minority and Female Workforce [643-654]
643 Generally
View Entire Section
After a nonconstruction contractor completes a workforce analysis, 48 a separate
utilization analysis must be done. A utilization analysis is a series of separate but
interrelated analyses consisting of:
a "job-group analysis" of major groupings having similar content, wage rates, and
opportunities; 49
an "availability analysis" estimating the percentage of minorities and women available
for employment in each job group; 50
an "underutilization analysis" comparing the percentage of minority and female
employees in a job group with the percentage of their availability. 51
Footnotes
Footnote 49. 645.
Footnote 50. 646-653.

Footnote 51. 654.
644 Which positions must be included in a utilization analysis

View Entire Section
A utilization analysis 52 usually must encompass all positions located within an
"establishment". 53 However, a utilization analysis involving a corporate headquarters
or other upper-level "establishment" must include all positions selected by officials at
those levels, even if the positions report to subordinate establishments. 54 Thus, when
such positions are located at a subordinate establishment they are excluded from the
utilization analysis for that establishment. 55
Managers have substantial discretion in determining where a particular position belongs,
as long as the placement permits a consistent method of evaluating the position in a
utilization analysis. 56
Footnotes
Footnote 52. 643.
Footnote 53. 627.
645 Performing a job group analysis

View Entire Section
The first step in a utilization analysis 57 is to perform a job group analysis for each
"major" job group. A job group is considered "major" when it is large enough to permit a
meaningful utilization analysis, and, if underutilization is found, 58 large enough so that
a goal 59 of at least one whole person can be established. 60 The OFCCP's attempt to
define a "major" job group as having at least 50 employees, or to mean the EEO-1
designations it identified as the job categories in which minorities and women are most
likely to be underutilized 61 regardless of size, was found to be invalid, since it was not
promulgated as a regulation as required under the Administrative Procedure Act. 62
The next step in the job group analysis is to determine how many minorities and women
work within each major "job group" and whether or not they are employed as would
reasonably be expected given their availability in the relevant market. A "job group" is a
job or group of jobs having "similar content, wage rates, and opportunities." 63 Job
groups which combine jobs with different content, wages, or opportunities may obscure a
utilization analysis and are not acceptable. For example, jobs in which minorities or
women are "concentrated" should not be combined with jobs in which they are
"underrepresented". 64
Jobs may have similar "content" based on position descriptions, or when they have
similar duties and responsibilities and are in the same EEO-1 categories. "Content"
similarity can be tested against job duties and qualifications contained in The Census
Bureau's Dictionary of Occupational Titles, collective bargaining agreements,
organizational charts, or other data. 65
Large disparities in pay within a "job group," when associated with differences in job
title or location, suggest a faulty job grouping for purposes of this analysis. 66
Jobs have similar "opportunity" when they enable an employee to take advantage of
training opportunities, transfers, promotions, mobility to desirable wage or salary
situations, and other employment benefits. Every job within a "job group" should offer
the same opportunities. Therefore, jobs should not be grouped together if they are in
separate unions, if they are in separate departments and interdepartmental mobility is
impossible, and if only some of them have a "line of progression". 67 Each "line of
progression" must be analyzed separately, and job titles in "lines of progression" that are
governed by strict seniority must be considered a single "job group". 68
Footnotes
Footnote 57. 643.
Footnote 58. 654.
Footnote 60. OFCCP Federal Contract Compliance Manual 2G02(d)(1).
Footnote 61. 654.
Footnote 62. Firestone Synthetic Rubber & Latex Co. v Marshall (1981, ED Tex) 507 F
Footnote 63. 41 CFR 60-2.11(b).

Footnote 67. 641.
646 Performing an availability analysis

View Entire Section
After doing a job group analysis, 69 the next step in a utilization analysis 70 is an
availability analysis that estimates the percentage of women and minorities available for
employment in each "job group", 71 from the labor area either outside or within an
"establishment". 72 "Availability" is the percentage of women and minorities who have
or could acquire the necessary skills to enter into a "job group." 73
These percentages are compared to the percentages of minorities or women in the
workforce analysis 74 to identify any underutilization 75 and, if necessary, to establish
goals and timetables 76 to achieve full utilization. 77
An availability analysis must include consideration of eight availability factors 78
within the appropriate "labor area", 79 the contractor's actual recruitment and
employment practices, and its affirmative action 80 and nondiscrimination 81
obligations. 82
Footnotes
Footnote 69. 645.
Footnote 70. 643.
Footnote 71. 645.
Footnote 72. 41 CFR 60-2.11(b).
Footnote 74. 636.
Footnote 75. 654.
Footnote 77. 41 CFR 60-2.11(b).
Footnote 78. 647.

As to labor areas, see 648.
Footnote 80. 626.
Footnote 81. 619.
Footnote 82. OFCCP Federal Contract Compliance Manual 2G03(b).
647 Factors for determining minority and female availability

View Entire Section
In the "immediate labor area", 83 a contractor performing an availability analysis 84
must consider the percentage of:
minority 85 and female 86 unemployment;
the minority 87 and female 88 workforce;
the minority population; 89
women seeking employment. 90
Also, an availability analysis in this labor area must include consideration of the general
availability of minorities 91 and women 92 having "requisite skills", 93 the
percentage of minorities 94 and women 95 having such skills, 96 and the existence of
training institutions 97 that can teach the required skills to minorities 98 and women.
99
Within the nonconstruction contractor's organization, it must consider the availability of
promotable and transferable 1 minorities 2 and women, 3 and the degree of training it
can reasonably undertake as a means of making all job classes available to minorities 4
and women. 5
While the contractor must consider each factor and explain how it did so in its affirmative
action plan, a final availability estimate only includes factors relevant to availability in a
"job group". 6 This final estimate may be the product of mathematical or
non-mathematical weighing methods, so long as the plan identifies which weighing
method was used. 7
Footnotes
Footnote 83. 648.

Footnote 84. 646.
Footnote 85. 41 CFR 60- 2.11(b)(1)(ii).
Footnote 86. 41 CFR 60- 2.11(b)(2)(i).
Footnote 87. 41 CFR 60- 2.11(b)(1)(iii).
Footnote 88. 41 CFR 60- 2.11(b)(2)(ii).
Footnote 89. 41 CFR 60.2.11(b)(1)(i).
Footnote 90. 41 CFR 60.2.11(b)(2)(v).
Footnote 91. 41 CFR 60.2.11(b)(1)(iv).
Footnote 92. 41 CFR 60.2.11(b)(2)(iii).
Footnote 93. 651.
Footnote 94. 41 CFR 60.2.11(b)(1)(v).
Footnote 95. 41 CFR 60.2.11(b)(2)(iv).
Footnote 96. 651.
Footnote 97. 652.
Footnote 98. 41 CFR 60.2.11(b)(1)(vii).
Footnote 99. 41 CFR 60.2.11(b)(2)(vii).
Footnote 1. 653.
Footnote 2. 41 CFR 60.2.11(b)(1)(vi).
Footnote 3. 41 CFR 60.2.11(b)(2)(vi).
Footnote 4. 41 CFR 60.2.11(b)(1)(viii).
Footnote 5. 41 CFR 60-2.11(b)(2)(viii).
Footnote 6. 645.
Footnote 7. OFCCP Federal Contract Compliance Manual 2G05(j).
648 What is the "immediate labor area" of availability

View Entire Section

In performing an availability analysis, 8 the availability factors 9 are evaluated in the
"immediate labor area," which is the geographic area from which employees may
reasonably commute to the contractor's establishment, including one or more contiguous
cities, counties, Metropolitan Statistical Areas or subparts in which the establishment is
located. The "immediate labor area" is usually the same for all "job groups", 10 and
local commuting patterns and available forms of transportation help define the area. 11
This area cannot be defined so as to artificially lower minority or female availability,
such as excluding a nearby area with a large minority workforce. 12 Nor can it be based
solely on residence patterns of white male employees. 13
Footnotes
Footnote 8. 646.
Footnote 9. 647.
649 Data sources for availability computations

View Entire Section
When performing an availability analysis, 14 the contractor must use the best data
available, including annual updates on population, unemployment, and "workforce" for
the state and for Metropolitan Statistical Areas and counties provided by the state's
department of employment security. 15 For data gathering purposes, "workforce" means
the Census Bureau's definition of "labor force," that is, persons ages 16 and older who are
either employed or unemployed, including persons actively seeking employment. 16
Observation: Annual population, unemployment, and workforce updates provided

by the state are refinements of data from the most recent U.S. Census.
Data quantifying the availability of women seeking employment include:
the female unemployment rate in the labor area;

the percentage of women applying for work at the local unemployment security office in
job categories comparable to those in the contractor's "job groups"; 17
the contractor's applicant flow statistics for women for those "job groups" in the past
year. 18
Footnotes
Footnote 14. 646.
Footnote 16. OFCCP Federal Contract Compliance Manual 2G05(d).
Footnote 17. 645.
650 How to compute availability

View Entire Section
In performing an availability analysis, 19 computations are initially made on a strict
mathematical basis. For example, the percentage availability of the minority population
in the "immediate labor area" 20 is calculated by dividing the total population of that
area by the minority population. 21
The percentage availability of minorities and women in the unemployment force in that
labor area is calculated by dividing the numbers of unemployed minorities and women by
the total population for the same area. 22
To determine the percentage availability of the minority and female workforce compared
to the total workforce in the "immediate labor area," the total numbers of minorities and
women in the workforce are each divided by the number of all persons in the workforce.
23
Finally, the percentage availability of minorities and women for entry level jobs requiring
no special skills or experience normally should approximate their respective percentages
in the workforce of the "immediate labor area." 24
Other considerations are applied in an availability analysis of minorities and females
depending on how much skill or experience is required in the "job group" 25 being
analyzed. For example, job groups in the service worker, laborer, and operatives EEO-1
categories are more likely to incorporate minority population percentages in a final
availability estimate more specialized skills, like technicians or professionals. 26

Similarly, the less skill required in a "job group," the more consideration should be given
to the percentage availability of women seeking employment. 27
The minority and female unemployment percentage must be given more consideration
when "job groups" are entry-level, filled by outside hires, and require little or no skill or
experience, but may be given less consideration where "job groups" are above entry
level, require more skill or are filled solely or primarily through internal placement. 28
The minority and female workforce percentage is more important for "job groups" which
draw from a larger, unskilled recruiting pool, and less important when "job groups" are
drawn from a smaller, skilled recruiting pool. 29
Footnotes
Footnote 19. 646.
Footnote 20. 648.
Footnote 24. OFCCP Federal Contract Compliance Manual 2G05(k)(1).
Footnote 25. 645.
651 Determining availability of skilled minorities and women

View Entire Section
One of the factors involved in an availability analysis 30 concerns the general
availability of minorities and women 31 having "requisite skills" in the "immediate
labor area" 32 for each of the contractor's "job groups". 33 This calculation of skilled
minorities 34 and women 35 is determined by comparing the number of minorities and
women having "requisite skills" and the minority and female population in the
appropriate area.
"Requisite skills" are the skills that make a person eligible for consideration for a job. 36
They must not be based on unvalidated requirements that have an adverse impact on
minorities or women, nor should minority and female employees be required to possess
higher qualifications than those of the lowest qualified incumbent. 37
The appropriate labor area for these calculations is sometimes referred to as the
"reasonable recruitment area," and it may expand beyond commuting distance if the jobs
at issue have increased pay levels and skill requirements, 38 or if the demand for a
particular skill exceeds the supply of skilled minorities and women in the "immediate
labor area." 39
Recommendation: A contractor that anticipates changing its recruitment area in the

year covered by its affirmative action plan should be prepared to present a legitimate
business reason for doing so. Otherwise, the OFCCP could reject the contractor's
revised definition of its "reasonable recruitment area."
While the most recent U.S. Census data is often used for determining the availability of
minorities and women with "requisite skills," it may become outdated as time passes and
may reflect only persons employed in a given occupation, not whether they have the
skills for such employment. Therefore, contractors should adjust their reliance on Census
data by:
consulting a state's periodic occupational updates;
ignoring Census data that masks prior discrimination against minorities and women by
understating their availability compared to their actual representation in a particular
occupation;
using only data from "requisite skills" classifications that match the skills required for
performance in the "job group";
narrowing the job categories to be studied when the data is based on broad job
categories that overstate or understate availability;
expand the job categories to be studied when the data is based on narrow job categories
that show no minorities or women for particular job titles. 40
Observation: Census data can be obtained from the Bureau of Census, U.S.
Department of Commerce.
Footnotes
Footnote 30. 646.
Footnote 31. 647.
Footnote 32. 648.
Footnote 33. 645.

Footnote 34. 41 CFR 60- 2.11(b)(1)(v).
Footnote 35. 41 CFR 60- 2.11(b)(2)(iv).
Footnote 37. 41 CFR 60-2.24(f)(5).
Footnote 38. OFCCP Federal Contract Compliance Manual 2G04(c)(2).
Footnote 39. OFCCP Federal Contract Compliance Manual 2G04(c)(3).
Footnote 40. OFCCP Federal Contract Compliance Manual 2G05(e)(1)-(5).
652 Identifying external training institutions and internal training opportunities

View Entire Section
In performing an availability analysis, 41 another factor that must be considered 42 is
the existence of training institutions that are capable of training minorities and women in
the skills required 43 for the pertinent "job group". 44
To accomplish this part of the analysis a contractor should contact educational and
training institutions with programs matching its employment needs, including local high
schools, technical schools, and colleges nationwide. These institutions should be able to
provide data on the number and percentage of minorities and women enrolled in such
programs. 45
This factor is given greater weight in an availability analysis when the "job group"
involves entry-level jobs that are filled primarily by recently trained graduates. 46
When considering the degree of training the contractor can reasonably undertake, it must
determine how many employees with appropriate training could be promoted or
transferred during the affirmative action plan year, 47 and what percentage of them are
minorities or women. 48
Footnotes
Footnote 41. 646.
Footnote 42. 647.
Footnote 43. 651.
Footnote 44. 645.

Footnote 45. OFCCP Federal Contract Compliance Manual 2G05(g)(1).
Footnote 46. OFCCP Federal Contract Compliance Manual 2G05(g)(2).
Footnote 47. 653.
Footnote 48. OFCCP Federal Contract Compliance Manual 2G05(h).
653 Determining the percentage of promotable and transferable minorities and

women
View Entire Section
In performing an availability analysis, 49 another factor required to be considered 50 is
the percentage of promotable and transferable minorities and women. This calculation is
expressed as the percentage of such persons who will become promotable or transferrable
during the plan year from "feeder job groups" into other jobs. 51
"Feeder job groups" include not only those jobs from which persons were actually
promoted or transferred to other jobs, but also jobs in which persons with the skills 52
to be promoted or transferred work, particularly if many of those persons are minorities
or women. 53
The contractor may conclude that the percentage of promotable minorities and women in
a "feeder job group" approximately equals their representation in such group. However,
if it identifies specific promotable or transferrable persons according to legitimate
seniority or special qualification requirements, it may conclude that the availability
percentage equals the percentage of the minorities and women having those
requirements. 54
Greater consideration should be given to this availability factor for a "job group" 55 that
is normally filled by promotion from within, rather than by hiring from the outside. 56
Footnotes
Footnote 49. 646.
Footnote 50. 647.
Footnote 51. OFCCP Federal Contract Compliance Manual 2G05(f).
Footnote 52. 651.
Footnote 53. OFCCP Federal Contract Compliance Manual 2G05(f)(1).

Footnote 55. 645.
654 Determining underutilization

View Entire Section
The next step in a utilization analysis 57 required for nonconstruction contractors under
Executive Order 11246, after a job group analysis 58 and an availability analysis 59
have been completed, is to determine whether underutilization exists. Underutilization
occurs when there are fewer minorities or women in a particular "job group" 60 than
would be reasonably expected by their "availability". 61 Underutilization can be
calculated using the standard deviation measure of statistical significance. 62
The OFCCP has concluded, based on its experience with compliance reviews, that there
are certain job categories in which minorities and women are most likely to be
underutilized.
Underutilization of minorities is likely in the following designations on the required
EEO-1 reporting from: 63
officials and managers;
professionals;
technicians;
sales workers;
office, clerical, and skilled craftsmen.
Women are most likely to be underutilized in the following job categories on the required
EEO-1 reporting form:
officials and managers;
professionals;
technicians;
sales workers, except for over-the-counter sales in certain retail establishments;
skilled and semi-skilled craftsmen. 64
Footnotes
Footnote 57. 643.
Footnote 58. 645.
Footnote 59. 646.
Footnote 60. 645.
Footnote 61. 41 CFR 60- 2.11(b).
As to availability generally, see 646.
Footnote 63. As to the EEO-1 reporting form, see 1913.
Footnote 64. 41 CFR 60-2.11.
(v). Goals and Timetables to Correct Underutilization [655-657]
655 Addressing underutilization through goals and timetables

View Entire Section
After a contractor has determined that minorities and women are being underutilized, 65
it must establish goals and timetables for their prompt and full utilization. These goals
and timetables must be included in the written affirmative action plan required under
Executive Order 11246, 66 and a "good-faith effort" 67 must be made to achieve the
goals. 68
While the OFCCP's regulations require goals and timetables for each "job group" 69 and
"organizational unit" 70 in which minorities and women are underutilized, 71 the
Compliance Manual addresses goals only by "job group," not by "organizational unit." 72
A single goal for all minorities is usually acceptable. However, where there is a
substantial disparity in the utilization of a particular minority group, 73 or a disparity for
one sex within a minority group, the OFCCP may require separate goals and timetables
for that minority group, or additional goals and timetables by sex for a minority group in
specified job classifications or "organizational units." 74
Observation: Since percentage or numeric goal setting is based on established

underutilization, goals by "organizational unit" would not normally be required unless
a utilization analysis by "organizational unit" also was required. One court has held
that such an analysis is not required. 75
While goals and timetables must be set for each "establishment", 76 a plan submitted by
a corporate or intermediate level office must establish goals for all positions selected by
officials there, even if the positions report to lower-level establishments. 77 Thus, when
such positions are located at a subordinate establishment they are excluded from the
goals set for that establishment. 78
When a contractor does not establish a goal, it must detail the reasons for not doing so in
its written affirmative action plan. 79
Goals addressing underutilization must be specific, 80 significant, measurable, and
attainable, 81 and must at least equal the percentage of "availability" 82 of minorities
or women for the "job group" 83 for which they are established. 84 They are not rigid
and inflexible quotas. 85 Percentage availability may be represented by a number if it
will help remedy underutilization. 86
Timetables for achieving goals must give consideration to anticipated expansion,
contraction, and turnover in the workforce. 87
Observation: The usual timetable for achieving the contractor's stated goals is the
duration of the affirmative action plan, which is usually one year. 88
A contractor exercising the publicly announced preference for American Indians living
on or near reservations, as authorized by the exception to Executive Order's 11246
nondiscrimination prohibition, may reflect this preference in its goals and timetables. 89
A contractor must report on progress made toward attaining its contractor's goals within
the established timetables as part of a report on the results of its affirmative action
program that it is required to include when submitting its affirmative action plan. 90
Footnotes
Footnote 65. 654.
Footnote 66. 626.
Footnote 67. 657.
Footnote 68. 41 CFR 60- 2.10.
Footnote 69. 645.
Footnote 70. 640.
Footnote 71. 41 CFR 60-2.13(e).
Footnote 72. OFCCP Federal Contract Compliance Manual 2G07.

Footnote 74. 41 CFR 60-2.12(1).
Footnote 75. 662.
Footnote 76. 627.
Footnote 79. 41 CFR 60-2.12(k).
Footnote 80. 41 CFR 60-2.12(d).
Footnote 81. 41 CFR 60-2.12(c).
Footnote 82. 646.
Footnote 83. 645.
Footnote 85. 41 CFR 60-2.12(e).
Footnote 86. 41 CFR 60- 2.12(h).
Footnote 87. 41 CFR 60-2.12(f).
Footnote 88. 626.
Footnote 89. 41 CFR 60-2.12(j).
Footnote 90. 41 CFR 60-1.40(c).
656 Retention of data supporting goals and timetables

View Entire Section
Data supporting a contractor's institution of goals and timetables 91 for minorities and
women and the analysis of that data must be a part of the contractor's written affirmative
action plan and must be maintained at each "establishment". 92 The data must include
progression line charts, seniority rosters, applicant flow statistics, and applicant rejection
ratios indicating minority and sex status. 93
Footnotes
Footnote 91. 655.
Footnote 92. 41 CFR 60-2.12(i).
As to establishments, generally, see 627.
Footnote 93. 41 CFR 60-2.12(m).
657 What constitutes a "good faith effort"

View Entire Section
A contractor's "good faith effort" to attain its stated goals and timetables 94 is assessed
on its overall affirmative action posture, including:
progress made in most areas where goals were established, or, in areas with little
progress, progress above expectations in similar but higher level jobs;
creative problem-solving to resolve long and short-term impediments to minority and
female utilization; 95
adequate descriptions of genuine efforts made on achieving the previous year's goals;
adequate data 96 to identify the reasons for any lack of progress on attaining goals, and
the type of corrective activities that could help achieve progress. 97
Footnotes
Footnote 94. 655.
Footnote 95. OFCCP Federal Contract Compliance Manual 2L01(a).
Footnote 96. 656.
Footnote 97. OFCCP Federal Contract Compliance Manual 2L01(b).
(vi). Identifying and Correcting Discrimination Against Minorities and Women
[658-664]
658 Review of workforce analysis for evidence of minority and female

"concentration" or "underrepresentation"
View Entire Section
The workforce analysis 98 required by nonconstruction contractors as part of a written
affirmative action plan under Executive Order 11246 serves not only as a statistical
profile of the minorities and women employed, but is also reviewed by the OFCCP for
indications of unlawful discrimination. For example, the agency examines evidence
tending to show that minorities or women are "concentrated" or "underrepresented" in
certain "job areas" or "workforce sectors". 99 The sole purpose of this review is to
determine whether further onsite investigation 1 is necessary, 2 not to determine
whether discrimination actually exists. 3
Minorities or women are "concentrated" when substantially more of them are employed
in a particular "job area" than might reasonably be expected by their overall
representation in the "workforce sector." 4 These groups are "underrepresented" when
there are substantially fewer of them in the "job area" than might reasonably be expected
by their representation in the "workforce sector." 5 Determining the degree of such
deviations can be a function of a review of the workforce analysis, or there may be a need
for more precise identification of job areas. 6
"Concentration" or "underrepresentation" of minorities and women can also be identified
by employing a "job area acceptance ranges" formula 7 or by studying employee
salaries. 8
Footnotes
Footnote 98. 636.
Footnote 99. OFCCP Federal Contract Compliance Manual 2N02.
As to "job areas" or "workforce sectors," see 659.
Footnote 2. OFCCP Federal Contract Compliance Manual 2N00.
Footnote 3. OFCCP Federal Contract Compliance Manual 2N02(c).
Footnote 4. OFCCP Federal Contract Compliance Manual 2N02(a).
Footnote 5. OFCCP Federal Contract Compliance Manual 2N02(b).
Footnote 6. OFCCP Federal Contract Compliance Manual 2N03(e).
Footnote 7. 660.
Footnote 8. 661.
659 Identifying "job areas" and "workforce sectors" for concentration or

underrepresentation
View Entire Section
To identify whether minorities or women are "concentrated" or "underrepresented" 9
based on a workforce analysis, the OFCCP must identify the "job areas" or "workforce
sectors" being evaluated.
A "job area" includes departments, progression lines, job titles, 10 or other portions of
the workforce. 11
A "workforce sector" contains the "job areas" in a contractor's workforce, 12 divided
along the lines of the contractor's structure, legitimate skills needs, and personnel
practices. 13
Absent discrimination, minorities and women should be fairly evenly distributed among
the "job areas" within a "workforce sector," particularly when entry-level positions share
similar job requirements and when jobs above entry-level normally are filled by
promotions. 14
Footnotes
Footnote 9. 658.
Footnote 10. OFCCP Federal Contract Compliance Manual 2NO0.
Footnote 11. OFCCP Federal Contract Compliance Manual 2N02(a).
Footnote 13. OFCCP Federal Contract Compliance Manual 2N03(c).
660 Application of "job area acceptance ranges" formula to determine

"concentration" or "underrepresentation"
View Entire Section

An OFCCP compliance official may apply a "job area acceptance range" (JAAR) formula
to confirm a suspected "concentration" or "underrepresentation" of minorities or women
15 in a "job area" 16 when reviewing the workforce analysis. 17
The JAAR is a range of percentages within which the percentage of minority or female
incumbents in the "job area" is deemed acceptable. A "concentration" of minorities or
females is indicated when their rate of representation is 20% or more above the JAAR
ceiling rate, while an "underrepresentation" is reflected when their representation rate is
20% or more below the JAAR floor percentage. 18
The formula for computing the JAAR is as follows: JAAR = A + or - (A X 0.2). "A" is
the percentage of minorities or women employed in the relevant "workforce sector". 19
Recommendation: Because a "workforce sector" can be either a blue-collar,

white-collar, or clerical division, a contractor should also conduct a JAAR analysis of
minorities and women for all of these divisions.
Illustration: Minorities comprise 40% of a contractor's blue collar workforce. The

JAAR floor rate is 32% (.40 - (.40 X .2) = .32). The JAAR ceiling rate is 48% (.40 +
(.40 X .2) = .48). Thus, the JAAR for minorities in the contractor's blue-collar work
sector is 32% to 48%. In the contractor's lathe operator line of progression, minorities
constitute 25% of the employees. The JAAR reveals that minorities are
underrepresented in the line of progression. A representation rate of 35% would have
fallen within the range of acceptability, and a representation rate of 55% would have
indicated a concentration.
Footnotes
Footnote 15. 658.
Footnote 16. 659.
Footnote 17. OFCCP Federal Contract Compliance Manual 2N03(f).
Footnote 18. OFCCP Federal Contract Compliance Manual 2N03(f)(3).
Footnote 19. OFCCP Federal Contract Compliance Manual 2N03(f)(2).
661 Analyzing potential discrimination by studying employee salaries

View Entire Section
When a workforce analysis identifies "job areas" or "workforce sectors" 20 in which

minorities or women are "concentrated" or "underrepresented", 21 the OFCCP may
study the salaries of these minorities and women to analyze whether such "concentration"
or "underrepresentation" is discriminatory. 22 This study is performed by comparing the
average pay of women and minorities in each area of "concentration" within a "workforce
sector" to the average pay of men and nonminorities in each area of
"underrepresentation." Discrimination may be indicated if the analysis finds that the
average earnings of nonminorities or men in areas of "underrepresentation" exceeds the
average wages of minorities or women in areas of "concentration." 23
The OFCCP may also review specific job titles 24 for a comparison of actual salaries,
25 and review how starting pay and pay raises are determined. 26
Recommendation: Because the information needed to perform this analysis is

readily available to the contractor, it should perform this analysis before finalizing its
affirmative action plan, and attempt to remedy identified problem areas.
Footnotes
Footnote 20. 659.
Footnote 21. 658.
Footnote 22. OFCCP Federal Contract Compliance Manual 2P00.
Footnote 24. 638.
662 Identifying problem areas by "organizational unit" and "job group"

View Entire Section
A contractor's affirmative action duties under Executive Order 11246 include an
obligation to conduct an in-depth self-analysis of its workforce and personnel policies
and procedures 27 to identify problem areas of actual or potential discrimination by
"organizational unit" 28 and "job group", 29 and to check for technical compliance
with the OFCCP's affirmative action regulations. 30 Based on this assessment, the
contractor must list these problem areas in its plan 31 and describe the programs it will
initiate to correct them. 32
Although the OFCCP requires an identification of problem areas by "organizational unit"

as well as by "job group," a court has held that an analysis by "organizational unit" is
unnecessary when a utilization analysis 33 indicates a need for corrective action in
identified "job groups." A utilization analysis by "organizational unit" is repetitive under
those circumstances and is not required. 34
Footnotes
Footnote 27. 41 CFR 60- 2.23(a)(1)-(9), discussed in 663.
Footnote 28. 640.
Footnote 29. 41 CFR 60-2.13(d).
As to job groups, see 645.
Footnote 30. 41 CFR 60-2.23(a)(10).
Footnote 31. 41 CFR 60-2.13(d).
Footnote 32. 41 CFR 60-2.13(f), discussed in 665 et seq.
Footnote 33. 643.
663 Evaluating workforce and personnel procedures for potential discrimination

View Entire Section
During a contractor's self analysis of problem areas, 35 it must focus on the count it
made by race and ethnicity in its workforce analysis 36 and must evaluate the following
aspects of its workforce and personnel procedures:
the composition of the work force by minority group status and sex;
the composition of applicant flow by minority group status and sex;
the total selection process, including position descriptions and titles, worker
specifications, application forms, interview procedures, test administration, test validity,
referral procedures, final selection process, and similar factors;
transfer and promotion practices;
facilities, company sponsored recreation and social events, and special programs, such
as educational assistance;
seniority practices and provisions of union contracts;
apprenticeship programs;
formal and informal company training programs;
workforce attitude;
technical aspects of compliance, such as posters and notification to labor unions,
retention of applications, and notification to subcontractors. 37
One method of identifying a discriminatory problem area is to evaluate the adverse
impact 38 any procedures may have on minorities and women. The OFCCP may use an
"impact ratio analysis" (IRA) for this purpose. 39 Using an IRA basically involves a
calculation of selection rates. A selection rate for minorities or women which is less than
80% of the selection rate for nonminorities or men for a particular personnel activity is
considered evidence of adverse impact and will be investigated further. 40 The OFCCP
will focus its scrutiny on lower minority or female ratios with respect to hiring and
promotions, and higher minority and female ratios with regard to terminations. 41 The
ratio for hiring or promotions is found by dividing the lower minority or female rate by
the higher nonminority or male rate, while the ratio for terminations is found by dividing
the nonminority or male rate by the higher minority or female rate. 42
However, the OFCCP may focus on favorable minority or female selection rates for
hiring or promotions when there is evidence that minorities or women are being
"channelled" into different and possibly less favorable jobs than are held by
nonminorities or men. 43
Contractors with more than 100 employees can perform impact ratio analysis based on
annual adverse impact reports that they must submit for each minority group constituting
at least 2% of the labor force in the relevant labor area or 2% of the applicable workforce.
44 Contractors with 100 or fewer employees must maintain information and data from
which adverse impact ratios can be calculated on each minority group constituting more
than 2% of the labor force in the relevant labor area. 45
Footnotes
Footnote 35. 662.
Footnote 36. 642.
Footnote 37. 41 CFR 60-2.23(a).
Footnote 40. OFCCP Federal Contract Compliance Manual 2O00.
Footnote 41. OFCCP Federal Contract Compliance Manual 2O01(b).

Footnote 42. OFCCP Federal Contract Compliance Manual 2O01(c).
Footnote 43. OFCCP Federal Contract Compliance Manual 2O01(b).
Footnote 44. 41 CFR 60-3.15A.(1)-(2).
Footnote 45. 41 CFR 60-3.15A(1)(a)-(c).
664 When does a problem area require corrective action

View Entire Section
A contractor must take corrective action if any of the following problem areas are
identified as a result of its self-analysis:
an underutilization of minorities or women in specific "job groups"; 46
a lower rate of lateral and/or vertical movement of minority or female employees
compared to their percentage in the workforce than that of nonminority or male or
employees; 47
a selection process that eliminates a significantly higher percentage of minorities or
women than nonminorities or men, or unvalidated tests, test forms, or other selection
techniques; 48
application and related preemployment forms not in compliance with federal laws;
inaccurate position descriptions in relation to actual functions and duties;
a significant higher rejection rate for minorities or women after referral to the hiring
supervisor or manager, compared to the rejection rate for nonminority and male referrals;
exclusion from or nonparticipation of minorities or women in company-sponsored
activities or programs, or continuing de-facto segregation at some facilities; 49
minority or sexual disparities between length of service and types of jobs held;
nonsupport of company policy by managers, supervisors, or employees 50
"underutilization" 51 or significant "underrepresentation" 52 of minorities or women
in training or career improvement programs; 53
lack of formal techniques for evaluating the effectiveness of equal employment
opportunity (EEO) programs; 54
lack of access to suitable housing or to suitable public or private transportation to the

work that inhibits minority employment opportunities;
failure to notify unions and subcontractors of their affirmative action responsibilities; 55
purchase orders lacking an EEO clause; 56
required EEO posters that are not on display. 57
Footnotes
Footnote 46. 654.
Footnote 47. 663.
Footnote 49. 634.
Footnote 50. 633.
Footnote 51. 654.
Footnote 52. 658.
Footnote 53. 652.
Footnote 54. 635.
Footnote 55. 631.
Footnote 56. 631.
Footnote 57. 41 CFR 60-2.23(b)(1)-(19).
As to notice posting, generally, see 1949 et seq.
(vii). Self-Analysis of Problem Areas and Corrective Action [665-669]
665 Addressing problem areas through action-oriented programs

View Entire Section
If a contractor identifies a problem area that requires corrective action 58 it must
develop and execute action-oriented programs designed to eliminate the problem, and
describe these programs in its written affirmative action plan under Executive Order
11246. 59
Action-oriented programs must be sufficiently "specific" and "result- oriented" to
accomplish the aims for which they were created. 60 A "specific" action-oriented
program indicates what the action is, who will accomplish it, and how and when it will be
accomplished. 61 A properly executed "result oriented" program will cause either an
increase in minority or female representation in the relevant "job group", 62 or will at
least clearly document actions sufficient to constitute a "good faith effort" 63 to achieve
such an increase. 64
At the very least, contractors must make certain that facilities and company-sponsored
social and recreational activities are desegregated and actively encourage all employees
to participate in them, 65 and encourage child care, housing, and transportation
programs that are appropriately designed to improve employment opportunities for
minorities and women. 66
Furthermore, the OFCCP suggests action-oriented programs 67 focusing on these
specific areas:
evaluating the selection process; 68
improving recruitment and increasing minority and female applicant flow; 69
ensuring that minority and female employees are given equal opportunity for
promotions. 70
Footnotes
Footnote 58. 664.
Footnote 59. 41 CFR 60-2.13(f).
Footnote 60. OFCCP Federal Contract Compliance Manual 2G13(a)(1).
Footnote 62. 645.
Footnote 63. 657.
Footnote 65. 41 CFR 60-2.24(g).
Footnote 66. 41 CFR 60-2.24(h).
Footnote 67. 41 CFR 60-2.24.
Footnote 68. 666.

Footnote 69. 667.
Footnote 70. 668.
666 Affirmative action for correcting deficiencies in the selection process

View Entire Section
The OFCCP suggests that a nonconstruction contractor's written affirmative action plan
71 include the following affirmative action as part of an action-oriented program 72 to
eliminate deficiencies in the total selection process:
conduct detailed analyses of position descriptions to ensure that they accurately reflect
position functions and are consistent for the same position in all locations; 73
validate employee worker specifications by division, department, location,
"organizational unit", 74 and job title using nondiscriminatory job performance criteria
consistent for a particular job in all locations; 75
distribute approved position descriptions and worker specifications to all recruiting
sources and managers involved in recruiting, screening, selection, and promotion
processes; 76
evaluate the total selection process to ensure freedom from bias to aid the attainment of
goals and objectives;
eliminate bias in all personnel actions by carefully selecting all persons involved in
recruiting, screening, selection, promotion, discipline, and related personnel processes;
observe the Uniform Guidelines on Employee Selection Procedures; 77
analyze and eliminate unscored selection procedures that are not objectively valid and
that operate to exclude minorities or women. 78
Footnotes
Footnote 71. 626.
Footnote 72. 665.
Footnote 73. 41 CFR 60- 2.24(a).
Footnote 74. 640.
Footnote 75. 41 CFR 60- 2.24(b).

Footnote 76. 41 CFR 60- 2.24(c).
Footnote 78. 41 CFR 60-2.24(d)(1)-(3).
667 Affirmative action to improve minority and female recruitment and applicant
flow
View Entire Section
increase its minority and female recruitment activities and applicant flow, as part of its
obligation to eliminate discrimination:
contact specified schools, colleges, religious organizations, and other institutions that
are prepared to refer women and minorities for employment;
identify community leaders as recruiting sources;
hold formal briefing sessions, preferably on company premises, with representatives
from recruiting sources;
conduct plant tours, including presentation by minority and female employees of clear
and concise explanations of current and future job openings, position descriptions,
worker specifications, explanations of the company's selection process, and recruitment
literature;
encourage minority and female employees to refer applicants;
make special efforts to include minorities and women in personnel department staffs;
make minority and female employees available to participate in career days, youth
motivation programs, and related community activities;
recruit at secondary schools, junior colleges, and colleges with predominantly minority
or female enrollments;
make special efforts to reach minorities and women when recruiting at all schools;
undertake special employment programs whenever possible, such as technical and
nontechnical co-op programs with predominantly black and women's colleges, summer
jobs for underprivileged youth, and motivation programs for the hardcore unemployed;
include minority and female employees in recruiting brochures pictorially presenting

work situations;
expand help-wanted advertising to regularly include the minority news media and
women's interest media. 81
Footnotes
Footnote 79. 626.
Footnote 80. 679.
Footnote 81. 41 CFR 2.24(e)(1)-(11).
Additional suggested recruiting efforts toward women, in the context of conformity with
the OFCCP's Sex Discrimination Guidelines, are discussed at 669.
668 Affirmative action to assure equal opportunity in promotions

View Entire Section
assure equal opportunity in promotions:
post or announce promotional opportunities;
inventory current minority and female employees to determine academic, skill, and
experience levels of individual employees;
initiate necessary remedial, job training, and work-study programs;
develop and implement formal employee evaluation programs;
validate worker specifications using performance-related criteria;
make supervisory personnel submit written justifications when apparently qualified
minority or female employees are passed over for upgrading;
establish formal career counseling programs that include attitude development,
education aid, job rotation, buddy systems, and similar programs;
review seniority practices and seniority clauses in union contracts to ensure that such
practices or clauses are nondiscriminatory and do not have a discriminatory effect. 84
Footnotes
Footnote 82. 626.
Footnote 83. 679.
Footnote 84. 41 CFR 2.24(f)(1)-(8).
669 Adherence to OFCCP's nondiscrimination guidelines

View Entire Section
Since a nonconstruction contractor's written affirmative action plan must contain
evidence of the contractor's compliance with the OFCCP's Sex Discrimination Guidelines
85 that implement the sex discrimination prohibition of Executive Order 11246, 86 the
plan must specifically address how the contractor is ensuring nondiscrimination in a
variety of areas, including but not limited to:
recruitment and advertising, 87 including recruiting women to apply for jobs from
which they were previously excluded; 88
job policies and practices; 89
seniority practices; 90
wages; 91
access to training programs, 92 including management training programs; 93
other policies, procedures, and working conditions that discriminate on the basis of sex.
94
Recommendation: Although OFCCP's guidelines, unlike the EEOC's sex

discrimination guidelines, do not address sexual harassment, the contractor should add
a statement concerning the company's policy against sexual harassment to demonstrate
its "good faith" 95 adherence to nondiscrimination principles.
To recruit women for jobs from which they were previously excluded, the OFCCP
suggests that itineraries in recruiting trips include women's colleges having graduates
with skills desired by the contractor and female students of coeducational institutions.
Also, the contractor should design advertisements indicating that women will be
considered equally with men for jobs. 96
Although a contractor's written affirmative action plan does not have to address the
OFCCP's religion and national origin discrimination guidelines, the agency will also
evaluate a contractor's compliance with them in the course of its compliance review, 97
including the reasonable accommodation requirement for religious observances and

practices. 98
Recommendation: Although not required, a contractor should include a commitment

to follow the OFCCP's religious and national origin discrimination guidelines in its
written affirmative action plan to demonstrate its "good faith efforts" 99 toward
nondiscrimination in the workplace.
Footnotes
Footnote 85. 626.
Footnote 87. 41 CFR 60-20.2.
Footnote 88. 41 CFR 60- 20.6(a).
Footnote 89. 41 CFR 60- 20.3.
Footnote 90. 41 CFR 60- 20.4.
Footnote 91. 41 CFR 60-20.5.
Footnote 95. 657.
Footnote 96. 41 CFR 60-20.6(a).
Footnote 97. OFCCP Federal Contract Compliance Manual 2R04(a).
Footnote 98. OFCCP Federal Contract Compliance Manual 3H02.
Footnote 99. 657.
(4). Alternative Written Affirmative Action Plan Requirements Under Executive
Order 11246 [670, 671]
670 Standardized affirmative action format for multi- establishment contractors

View Entire Section

The OFCCP has developed the concept of an Standard Affirmative Action Format
(SAAF) to manage more efficiently and monitor large multi- establishment contractors
with homogeneous and relatively centralized personnel policies and procedures. An
SAAF is a detailed outline of the "methodologies," or system of methods or formulas,
used by a contractor to develop the major components of an affirmative action plan under
Executive Order 11246 1 to which the OFCCP and the contractor have agreed, either on
a company-wide or smaller basis. Methodologies approved under an SAAF will not be
questioned by the OFCCP during a compliance review of an "establishment". 2
To qualify for an SAAF, a contractor must ordinarily have relatively centralized
personnel policies and procedures. Any contractor may request an SAAF, but priority
will be given to larger contractors. Contractors either currently subject to sanctions or
involved in compliance litigation with the OFCCP are ineligible for the development of
an SAAF as to the issues in dispute.
A contractor seeking to qualify for an SAAF must submit for approval at least one of the
following "methodologies" for preparing affirmative action plans, as well as copies of
instructions concerning the completion of all forms included as part of the SAAF and
supporting data:
the workforce analysis; 3
"job groups" analysis; 4
"availability" analysis; 5
necessary goals and timetables. 6
A contractor may also seek approval for:
methodologies and instructions used to identify areas of potential discrimination, 7
including adverse impact analysis and forms for analyzing personnel actions; 8
specific instructions on action-oriented programs to correct identifiable discrimination;
9
a description of instructions for compliance with the OFCCP's Sex Discrimination
Guidelines, 10 including a pregnancy leave policy. 11
An SAAF becomes effective on the date it is signed by the OFCCP Director, and it may
be terminated by either party with 30 days written notice. The OFCCP will not terminate
the agreement unless subsequent regulatory changes make the agreement unacceptable.
To obtain an approved SAAF, a contractor must make a written request to the OFCCP
Director, who will set a date to meet and will ask the contractor to:
list every "establishment" to be covered by the SAAF, by name, address, city, state, and
estimated size of workforce;
submit the portions of the written affirmative action program requirements 12 to be

covered by the SAAF, and, if necessary, a brief description of the company's organization
or organizational charts. Based on these submissions, the OFCCP and the contractor may
negotiate a written SAAF agreement. 13
written plan.
Footnotes
Footnote 1. 626.
Footnote 2. 627.
Footnote 3. 636.
Footnote 4. 645.
Footnote 5. 646.
Footnote 6. 655.
Footnote 7. 658.
Footnote 8. 663.
Footnote 9. 665.
Footnote 10. 669.
Footnote 12. 628.
Footnote 13. OFCCP Order 810a5, 3/24/87.
671 Abbreviated affirmative action plan option for contractor in qualified

training programs
View Entire Section
Under the Job Training Partnership Act, 14 an abbreviated affirmative action program
can be filed by a federal nonconstruction contractor required to submit a written
affirmative action plan under Executive Order 11246 if it establishes or participates in a
qualified training program that meets certain criteria for qualification under the Act. The
OFCCP shall determine the content and length of such an abbreviated program. 15 The
legislative history of the Act suggests that a contractor's short-form affirmative action
program will at least contain an EEO policy statement, 16 a workforce analysis, 17 a
utilization analysis, 18 goals and timetables to correct any underutilization, 19 and a
description of the contractor's procedures for implementing the affirmative action plan.
20
A contractor that has successfully performed or operated a qualified training program is
presumed to have made a "good-faith effort" 21 to comply with its affirmative action
obligations for training and hiring, but is not presumed to have satisfied its other
affirmative action obligations. "Successful performance or operation" occurs when
individuals are trained and placed in jobs in reasonable relationship to the number of job
openings in the contractor's facilities or in the relevant labor market area. 22
Observation: Although the Act does not relieve a contractor's affirmative action
obligations under Executive Order 11246, it implies that an approved abbreviated
affirmative program would apply to the contractor's entire affirmative action
obligations under Executive Order 11246, and not just to the training programs that the
contractor establishes or in which it participates.
The OFCCP must promulgate regulations delineating how its compliance review will
determine the degree to which participation in a training program satisfies a contractor's
affirmative action obligations under the Order. 23
Observation: The OFCCP has not yet published those regulations.

Footnotes
Footnote 16. 629.
Footnote 17. 636.
Footnote 18. 643.
Footnote 19. 655.
Footnote 20. H Conf Rept No. 97-889, 9/28/82, p. 125, discussed at 633 et seq.
Footnote 21. 657.
b. Affirmative Action Requirements tor Veterans and Handicapped Persons

[672-691]
(1). In General [672-675]
672 Contractor obligations under the Rehabilitation Act and Vietnam Era
Veterans Readjustment Assistance Act
View Entire Section
Go to Supplement
Covered government contractors 24 have affirmative action obligations under both the
Rehabilitation Act 25 and Vietnam Era Veterans Readjustment Assistance Act
(VEVRA) 26 to include an affirmative action clause 27 covering qualified
handicapped persons and disabled 28 and Vietnam-era veterans in each covered contract
and subcontract, and their modifications, renewals, or extensions. Such plans must be
submitted by each "establishment", 29 in conformity with the requirements of the Labor
Department's Office of Federal Contract Compliance Programs (OFCCP). 30
Observation: Because substantially similar regulatory requirements apply to

affirmative action programs for both Vietnam-era and disabled veterans and for
qualified handicapped persons, they will be simultaneously discussed to the extent
practicable.
A Vietnam-era veteran, under VEVRA, is a person who: (1) served on active duty for
more than 80 days between August 5, 1964 and May 7, 1975, and was discharged or
released with other than a dishonorable discharge; or (2) was discharged from active duty
performed during those dates, for a service- connected disability. 31 No one may be
considered to be a Vietnam-era veteran after December 31, 1994. 32
672 ----Contractor obligations under the Rehabilitation Act and Vietnam Era
Veterans Readjustment Assistance Act [SUPPLEMENT]
Practice Aids: Litigating Claims of Discrimination in Employee Benefits, Panken &
Babson, 16 CMJ No.6 P 29 (Jun 1992).
Regulations:
As amended in 1995, (41 CFR 60-250.2) increased the required length of service from
80 days to 180 days.
Footnotes

Footnote 27. 673.
Footnote 29. 674.
Footnote 30. 676.
Footnote 31. 41 CFR 60-250.2, as amended by 51 Fed. Reg. 30467.
673 Affirmative action clauses required in contracts

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Under the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act
(VEVRA), the required affirmative action clause that must be included in each covered
government contract or subcontract, and in all contract modifications, renewals, or
extensions if it was not included in the original contract, includes the following basic
obligations with regard to handicapped persons 33 and disabled and Vietnam-era
Veterans: 34
(1) the contractor must not discriminate on the basis of handicap or disabled veteran's or
Vietnam-era status against an employee or applicant regarding a job for which the
individual is qualified, and must take affirmative action to employ, advance in
employment, and otherwise treat qualified individuals on a nondiscriminatory basis in all
employment practices, including but not limited to hiring, upgrading, demotion, transfer,
recruitment, advertising, layoff, termination, pay, and selection for training and
apprenticeship;
(2) the contractor must comply with any rules, regulations, or relevant orders issued by
the Secretary of Labor;
(3) the contractor must acknowledge that if it does not comply with its affirmative action
obligations, actions for noncompliance may be taken by the Secretary of Labor;
(4) the contractor must post notices in conspicuous places available to employees and
applicants that state their legal rights and the contractor's legal obligations, and notify
each labor union or worker representative that it is bound by the Rehabilitation Act and
VEVRA;
(5) the contractor must include the affirmative action clause in every subcontract or
purchase order that is covered under the relevant Act, so as to also bind its subcontractors
and vendors to the statutory duties.
Also, the required VEVRA clause must include the contractor's obligation to list all
"suitable job openings" that occur when the contract is signed, and during its
performance, with the appropriate State Employment Service offices. 35
written plan.
673 ----Affirmative action clauses required in contracts [SUPPLEMENT]
Regulations:
As amended in 1996, 41 CFR 60-250.4(b) also requires the contractor to provide such
reports to such local office regarding employment openings and hires as may be required,
and it sets forth additional requirements as to state and local government agencies
holding certain federal contracts.
Footnotes
Footnote 33. 41 CFR 60-741.4.
Footnote 34. 41 CFR 60- 250.4.
Footnote 35. 41 CFR 60-250.4(b).
674 Required affirmative action program for each "establishment"
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Each government contractor required to submit an affirmative action program under the
Rehabilitation Act 36 and VEVRA 37 must prepare and maintain such a program for
each "establishment," setting forth the contractor's affirmative action policy, practices,
and procedures with regard to disabled and Vietnam-era veterans and handicapped
persons.
Observation: Although the regulations do not specifically require a written

affirmative action plan, the only sensible way to meet affirmative action requirements
38 for an acceptable program is to submit a written plan.
Observation: Absent a definition of an "establishment" for affirmative action

programs required by the Rehabilitation Act and VEVRA, contractors should rely on
the OFCCP's definition of an "establishment" under Executive Order 11246. 39
Each program under the Rehabilitation Act 40 and VEVRA 41 must be made available
for inspection by an employee or applicant upon request.
An affirmative action plan for Vietnam-era and disabled veterans 42 or qualified
handicapped persons 43 can be integrated into or kept separate from other affirmative
action programs conducted by the contractor.
674 ----Required affirmative action program for each "establishment"
[SUPPLEMENT]
Regulations:
Footnotes
Footnote 36. 41 CFR 60- 741.5(a).
Footnote 37. 41 CFR 60- 250.5(a).

Footnote 38. 676.
Footnote 39. 627.
Footnote 40. 41 CFR 60-741.5(d).
Footnote 41. 41 CFR 60- 250.5(c).
Footnote 42. 41 CFR 60-250.5(a).
Footnote 43. 41 CFR 60-741.5(a).
675 Listing job openings with state employment services

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A contractor required to take affirmative action under the Vietnam-era Veterans
Readjustment Assistance Act must list "all suitable job openings" with the appropriate
local office of the State Employment Service system. 44
Observation: This job listing requirement does not apply to affirmative action
programs under the Rehabilitation Act.
This requirement applies to all job openings that exist when the contract is signed and
that occur during its performance, whether or not generated by the contract, and to all of
the contractor's "establishments", 45 except independently operated corporate affiliates.
"All suitable job openings" include:
production and non-production, plant and office, supervisory and non-supervisory,
technical, executive, administrative, and professional jobs that pay a salary of less that
$25,000 a year;
full-time, part-time, and temporary jobs of more than three days' duration.
"All suitable job openings" do not include:
openings that are filled from within the work force or through a customary and
traditional employer-union hiring arrangement;
openings in an education institution that are restricted to the institution's students;
job listings that, only under the most compelling circumstances, as when the
government's needs cannot reasonably be otherwise supplied, are contrary to national
security or otherwise not in the government's best interests. 46
An OFCCP regulation requiring a contractor to file quarterly reports to the local State
Employment Service concerning job openings and the hiring of veterans 47 has been
suspended, and its elimination is proposed by the agency. 48
Footnotes
Footnote 44. 41 CFR 60-250.4.
Footnote 45. 674.
Footnote 46. 41 CFR 60-250.4.
Footnote 47. 41 CFR 60-250.4(d).
(2). The Affirmative Action Plan [676-691]
(a). In General [676-682]
676 Contents; generally

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An affirmative action plan for qualified handicapped workers under the Rehabilitation
Act, and for Vietnam-era and disabled veterans under VEVRA 49 must:
name the persons responsible for implementing the affirmative action policy; 50
contain an affirmative action policy statement; 51
have a procedure for disseminating the statement internally and externally; 52
institute an internal auditing and monitoring system; 53
identify areas of potential discrimination and propose actions to remedy such
discrimination; 54
review personnel processes to determine whether present procedures properly consider
the job qualifications of known Vietnam-era and disabled veterans and handicapped
persons; 55
schedule a review of all physical and mental job qualification requirements; 56
reasonably accommodate the physical and mental limitations of disabled veterans,

Vietnam-era veterans, and handicapped persons; 57
invite disabled and Vietnam-era veterans and handicapped persons to identify
themselves; 58
not reduce the amount of compensation offered because of any disability income,
pension or other benefit the individual receives from another source;
be updated annually; 59
describe outreach and positive recruitment activities; 60
describe specific action programs to remedy problem areas. 61
Observation: There are several major distinctions between affirmative action plans
required by the Rehabilitation Act and VERVA and those required by Executive Order
11246. 62 For example, goals and timetables are not required in the former, but are
mandatory in the latter. Also, no statistical utilization or other analysis is required for
veterans and handicapped persons.
written plan.
Footnotes
Footnote 49. 674.
Footnote 50. 677.
Footnote 51. 678.
Footnote 52. 679.
Footnote 53. 680.
Footnote 54. 683.
Footnote 55. 684.
Footnote 56. 685.
Footnote 57. 686.
Footnote 58. 681.
Footnote 59. 682.
Footnote 60. OFCCP Federal Contract Compliance Manual 2I01, discussed at 687.
Footnote 61. OFCCP Federal Contract Compliance Manual 2I08, discussed at
688-691.
677 Appointment of executive responsible for plan implementation

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Under the Rehabilitation Act 63 and VEVRA, 64 a director or manager of the
contractor's affirmative action activities for veterans and qualified handicapped persons
should be appointed from the executive ranks and assigned responsibility for
implementing the required affirmative action program. This executive's name should
appear on all internal and external communications regarding the program, and he or she
should be given the top management support and staff necessary to implement the
program.
Observation: This executive may also be the EEO Officer, who is responsible for
implementing the contractor's affirmative action program for minorities and women
under Executive Order 11246. 65
The responsibilities of this executive under the Rehabilitation Act 66 and VEVRA 67
include:
developing policy statements, affirmative action programs, and internal and external
communication techniques, including regular discussions with local managers,
supervisors, and employees, to ensure that the contractor's policies are being followed;
identifying problems in implementing affirmative action programs, aided by line
managers and disabled veterans or handicapped persons, and developing solutions to
such problems;
designing and implementing an auditing and reporting system; 68
serving as liaison between the contractor and enforcement agencies and organizations
concerned with Vietnam-era and disabled veterans or handicapped persons;
arranging active involvement by company representatives in community service
programs concerned with veterans or handicapped persons;
informing managers of the most recent affirmative action developments;
arranging career counseling for Vietnam-era and disabled veterans or known
handicapped employees.
677 ----Appointment of executive responsible for plan implementation

[SUPPLEMENT]
Regulations:
Footnotes
Footnote 63. 41 CFR 60- 741.6(h).
Footnote 64. 41 CFR 60- 250.6(h).
Footnote 65. 633.
Footnote 66. 41 CFR 60-741.6(h)(1)-(7).
Footnote 67. 41 CFR 60.250.6(h)(1)-7.
Footnote 68. 680.
678 Required affirmative action policy statement

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As part of the requirements of an affirmative action program under the Rehabilitation Act
and VEVRA, a contractor must issue a policy statement on affirmative action for
Vietnam-era and disabled veterans and qualified handicapped individuals. The policy
must contain a promise to apply affirmative action to all employment practices affecting
these veterans 69 and handicapped persons, 70 including hiring, upgrading, demotion,
transfer, recruitment, advertising, layoff, termination, pay, and selection for training.
Affirmative action in training for Vietnam- era and disabled veterans 71 includes all
apprenticeship and on-the-job training programs, during which the veteran receives a
training allowance as authorized by veterans reemployment rights law. 72
678 ----Required affirmative action policy statement [SUPPLEMENT]
Regulations:
Footnotes
Footnote 69. 41 CFR 60-250.6(a)
Footnote 70. 41 CFR 60-741.6(a).
Footnote 71. 41 CFR 60- 250.6(a).
679 Dissemination of affirmative action policy

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The policy statement required under the affirmative action obligations imposed by the
Rehabilitation Act and VERVA 73 must be disseminated both internally and externally.
A contractor can disseminate its affirmative action policy internally by:
including the policy in its policy manual;
publicizing the policy in media such as the company newspaper, magazine, and annual
report;
conducting special meetings with executives, managers, and supervisors, and other
employees to explain the policy, the responsibilities for implementing it, and the attitude
of the chief executive officer;
discussing the policy thoroughly in employee orientation and management training
programs;
meeting with union officials to inform them of the policy, and requesting their
cooperation;
including nondiscrimination clauses in all union agreements, and reviewing all
contractual provisions to ensure nondiscrimination;
placing articles in company publications about the accomplishments of handicapped
workers or disabled or Vietnam-era veterans;
posting the policy on company bulletin boards, including a statement that employees
and applicants are protected from coercion, intimidation, interference, or discrimination
if they file a complaint or assist in an investigation under VEVRA 74 or the
Rehabilitation Act; 75
holding regularly scheduled meetings with local managers, supervisors, and employees
to ensure that affirmative action policies are being carried out under VEVRA and the
A contractor can also disseminate its affirmative action policy under the Rehabilitation
Act internally by including handicapped employees in features on employees in
handbooks or other company publications. 77
A contractor must externally disseminate its affirmative action policy for disabled and
Vietnam-era veterans 78 and qualified handicapped persons 79 by sending written
notification of the policy to all subcontractors, vendors, and suppliers, requesting
appropriate action by them.
679 ----Dissemination of affirmative action policy [SUPPLEMENT]
Regulations:
Footnotes
Footnote 73. 678.
Footnote 74. 41 CFR 60-250.6(g)(1)-(9).
Footnote 75. 41 CFR 60-741.6(g)(1)-(9).
Footnote 76. 677.
Footnote 77. 41 CFR 60-741.6(g)(10).
Footnote 78. 41 CFR 60- 250.6(f)(7).
Footnote 79. 41 CFR 60-741.6(f)(9).
680 Auditing and reporting requirements

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The auditing and reporting system required as part of a contractor's affirmative action
program under VEVRA 80 and the Rehabilitation Act 81 should be designed to
measure the effectiveness of the program, identify the need for remedial action,
determine the degree to which objectives have been attained, determine whether known
disabled and Vietnam-era veterans or known handicapped employees have had the
opportunity to participate in all company- sponsored educational, training, recreational,
and social activities, and ensure that each location is complying with the affirmative
action requirements.
680 ----Auditing and reporting requirements [SUPPLEMENT]
Regulations:
Footnotes
Footnote 80. 41 CFR 60-250.6(h)(3)(i)-(iv).
Footnote 81. 41 CFR 60-741.6(h)(3)(i)-(iv).
681 Inviting veterans and handicapped workers to identify themselves

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A contractor's affirmative action obligations under the Rehabilitation Act 82 and
VEVRA 83 include inviting handicapped workers and Vietnam-era and disabled
veterans who wish to benefit from the program to identify themselves to the contractor.
The invitation must state that responses are voluntary, will be kept confidential, that
refusals to respond will not subject the applicant or employee to adverse treatment, and
that the information will be used only in accordance with those laws and their
implementing regulations.
If an applicant or employee responds to the invitation, the contractor should seek his
advice regarding proper placement and appropriate accommodation 84 under VEVRA
85 or the Rehabilitation Act. 86 An employee who does not initially respond may do
so later, in anticipation of a desired benefit under the affirmative action plans established
by VERVA 87 or the Rehabilitation Act. 88
A contractor who invites such identification must still refrain from discrimination under
VEVRA 89 and the Rehabilitation Act, 90 and must still take affirmative action for
applicants it knows to be handicapped, but it does not have to search the medical files of
an applicant or employee to determine the existence of a handicap. 91
Observation: The regulations do not prescribe any system for issuing the invitations
or their frequency of distribution.
681 ----Inviting veterans and handicapped workers to identify themselves
[SUPPLEMENT]
Regulations:
Footnotes
Footnote 82. 41 CFR 60-741.5(c)(1).
Footnote 83. 41 CFR 60-250.5(d).
Footnote 84. 686.
Footnote 85. 41 CFR 60-250.5(d).
Footnote 86. 41 CFR 60-741.5(e)(1).
Footnote 87. 41 CFR 60-250.5(d).
Footnote 88. 41 CFR 60-741.5(c)(2).
Footnote 89. 41 CFR 60-250.5(d).
Footnote 90. 41 CFR 60-741.5(c)(4).
Footnote 91. 41 CFR 60-741.5(c)(3).
682 Annual updating requirement

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Affirmative action programs required for contractors under VEVRA and the
Rehabilitation Act must be reviewed and updated annually. Significant changes in
procedures, rights, or benefits that result from the update must be communicated to
employees and applicants.
Observation: Technical changes to plans, such as the correction of typographical

errors and the like, should be deemed "insignificant" changes which do not require
publicity.
(b). Identification of Problems and Proposal of solutions [683-691]
683 Generally
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A contractor's affirmative action plan under the Rehabilitation Act 92 and VEVRA 93
must identify problems in the implementation of affirmative action programs for disabled
and Vietnam-era veterans and qualified handicapped workers, and propose ways to
resolve those problems. These tasks are specifically the responsibility of the appointed
plan executive 94 and should be accomplished with the involvement of line managers
and employees who are known to be disabled veterans or handicapped.
Regulations:
Footnotes
Footnote 92. 41 CFR 60-741.6(h)(2).
Footnote 93. 41 CFR 60-250.6(h)(2).
Footnote 94. 677.
684 Proper consideration of job qualifications
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Another requirement of a contractor's affirmative action plan under VEVRA 95 and the
Rehabilitation Act 96 is to properly consider the job qualifications of Vietnam-era and
disabled veterans and qualified handicapped employees and applicants. Personnel
procedures must be reviewed to ensure that they thoroughly consider the job
qualifications of these individuals for not only vacancies filled by hire or promotion, but
also for all training opportunities.
In examining a veteran's qualifications, the contractor can only consider the portion of his
or her military record, including discharge papers, that is relevant to the specific job for
which the veteran is being considered. 97
684 ----Proper consideration of job qualifications [SUPPLEMENT]
Regulations:
Footnotes
Footnote 95. 41 CFR 60-250.6(b).
Footnote 96. 41 CFR 60-741.6(b).
Footnote 97. 41 CFR 60-250.6(b).
As to corrective actions, see 690.
685 Review of physical and mental job requirements

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A contractor's affirmative action program under VEVRA 98 and the Rehabilitation Act
99 includes a periodic scheduled review of all physical or mental job requirements to
ensure that, to the extent they may screen out qualified disabled veterans 1 or
handicapped individuals, 2 they are job-related and consistent with business necessity
and safety. The contractor has the burden of proving such validity.
A contractor may require a Vietnam-era or disabled veteran 3 or handicapped person 4
to undergo a comprehensive medical examination prior to employment or a change in
employment status, if the examination results are used only in accordance with the
affirmative action program and if the information obtained is kept confidential. However,
such information can be shared with:
supervisors and managers, for purposes of identifying necessary restrictions on a
disabled veteran's or handicapped individual's work or duties, or identifying necessary
accommodations to an individual's disability;
first aid and safety personnel, when appropriate, if the individual's condition might
require emergency treatment;
government officials who are conducting an investigation.
The contractor may also require handicapped applicants and employees to provide
medical documentation of their impairments or to undergo a medical examination at the
contractor's expense. Information obtained in this manner cannot be used to limit
employment opportunities for qualified handicapped individuals. 5 Medical
documentation required for this purpose must be based on the American Medical
Association Guides to the Evaluation of Permanent Impairment, and can be used only to
determine the existence of, not the degree of, the impairment. 6
685 ----Review of physical and mental job requirements [SUPPLEMENT]
Regulations:
Footnotes
Footnote 98. 41 CFR 60-250.6(c)(1).
Footnote 99. 41 CFR 60-741.6(c)(1).
Footnote 1. 41 CFR 60-250.6(c)(2).
Footnote 2. 41 CFR 60-741.6(c)(2).
Footnote 3. 41 CFR 60-250.6(c)(3).
Footnote 4. 41 CFR 60-741.6(c)(3).
Footnote 5. 41 CFR 60-741.7(b), 60- 741.7(c).
Footnote 6. 41 CFR 60- 741.7(d).
686 Reasonable accommodation requirement

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A contractor's affirmative action obligations under VEVRA 7 and the Rehabilitation Act
8 include a requirement to reasonably accommodate the physical and mental limitations
of an employee or applicant, unless it can demonstrate that the accommodation would
impose an undue hardship on the conduct of its business, based on such factors as
business necessity and financial costs and expenses. The affirmative action policy 9
must include this requirement. 10
Recommendation: In the absence of additional authoritative guidance as to what

constitutes a reasonable accommodation under VERVA, government contractors
should consult the definition of that term under the Rehabilitation and Americans with
Disabilities Acts. 11
686 ----Reasonable accommodation requirement [SUPPLEMENT]
practices, 26 Colum J L & SP 523 (1993).
Regulations:
Footnotes
Footnote 7. 41 CFR 60-250.6(d).
Footnote 8. 41 CFR 60-741.6(d).
Footnote 9. 678.
Footnote 10. OFCCP Federal Contract Compliance Manual 2I05.
Footnote 11. 197.
687 Outreach and recruitment activities for veterans and handicapped persons
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The OFCCP recommends specific outreach and recruitment activities for a contractor to
undertake as part of its affirmative action program under VEVRA 12 and the
Rehabilitation Act, 13 to the extent practicable under the circumstances of the
contractor's size, resources, and adequacy of existing employment practices.
Contractors attempting to meet affirmative action obligations to both disabled and
Vietnam-era veterans 14 and handicapped persons 15 are advised to:
internally communicate those obligations to executives, managers, supervisors, and
other employees, to foster understanding, acceptance, support, and necessary action to
aid the contractor in fulfilling them;
develop reasonable internal procedures to ensure full implementation of these
obligations;
periodically inform all employees and applicants of its commitment to engage in such
affirmative action;
review employment records to determine whether there are any disabled or Vietnam-era
veterans 16 or handicapped employees 17 who are promotable or transferable and

whether their present and potential skills are being fully used or developed;
take positive steps to attract qualified disabled and Vietnam-era veterans 18 and
handicapped persons 19 not currently in the work force, but who have the requisite
skills and could be recruited through affirmative action measures;
hold formal briefing sessions with recruiting sources for disabled and Vietnam-era
veterans 20 and handicapped persons, 21 preferably on company premises, which
include plant tours, explanations of current and future job openings, position descriptions,
worker specifications, the selection process, and recruiting literature;
formally arrange for referral of applicants, follow-up contact with recruiting sources,
and feedback on applicant placement;
make special efforts to reach disabled and Vietnam-era veterans, and handicapped
individuals in recruiting efforts at educational institutions;
use all available resources to continue or establish federally- assisted apprenticeship and
on-the-job training programs for disabled and Vietnam-era veterans, and on-the-job
training programs for handicapped workers.
However, a recruiting source has no authority to approve or disapprove of the contractor's
affirmative action plan under VEVRA 22 or under the Rehabilitation Act. 23
687 ----Outreach and recruitment activities for veterans and handicapped persons
[SUPPLEMENT]
Regulations:
Footnotes
Footnote 12. 41 CFR 60-250.6.
Footnote 13. 41 CFR 60-741.6.
Footnote 14. 41 CFR 60- 250.6(f)(1)-(3).

Footnote 15. 41 CFR 60-741.6(f)(1)-(3).
Footnote 16. 41 CFR 60- 250.6(f)(6).
Footnote 17. 41 CFR 60-741.6(f)(7).
Footnote 18. 41 CFR 60-250.6(f)(8).
Footnote 19. 41 CFR 60-741.6(f)(10).
Footnote 20. 41 CFR 60-250.6(i)(4), 60-250.6(i)(7) and 60-250.6(i)(9).
Footnote 21. 41 CFR 60-250.6(i)(4), 60-250.6(i)(7) and 60- 250.6(i)(9).
Footnote 22. 41 CFR 60.260.6(f)(5).
Footnote 23. 41 CFR 60-741.6(f)(6).
688 Outreach and recruitment of veterans

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The OFCCP suggests various ways for a contractor to improve its outreach and
recruitment of disabled and Vietnam-era veterans as part of its affirmative action efforts,
24 such as:
establishing meaningful contacts with appropriate veterans' service organizations that
aid disabled or Vietnam-era veterans, to obtain advice, technical assistance, and referrals
of applicants;
enlisting the assistance and support of all recruiting sources; 25
participating in veterans' "job fairs" and work-study programs with Veteran's
Administration Rehabilitation facilities specializing in training or educating disabled
veterans. 26
Recruiting sources identified by the agency include:
a local Veterans' Employment Representative in the State Employment Service Office;
the Veterans Administration Regional Office;
a National Alliance of Business office;
veterans' counselors and coordinators ("Vet-Reps" and "VCIPS") on college campuses;

service officers of active area national veterans groups;
local veterans' groups and service centers where employment services are performed. 27
688 ----Outreach and recruitment of veterans [SUPPLEMENT]
Practice Aids: Employment DiscriminationTitle VII Prohibits Fetal Protection Policy
That Excludes All Fertile Women From Positions Involving Lead Exposure
International Union, United Auto Workers v Johnson Controls, Inc, Ervin, 14 U Ark
Little Rock LJ No. 2 P 217 (Winter 1992).
Footnotes
Footnote 24. 687.
Footnote 25. 41 CFR 60-250.6.
Footnote 26. 41 CFR 60- 250.6(i)(6) and 60-250.6(i)(8).
Footnote 27. 41 CFR 60-250.6(f)(4)- (5).
689 Outreach and recruitment of handicapped persons

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Contractors are offered the following suggestions from the OFCCP to improve the
outreach and recruitment efforts that fulfill affirmative action obligations toward
qualified handicapped persons under the Rehabilitation Act:
enlist the assistance and support of recruiting sources (including state employment
security agencies, state vocational rehabilitation agencies or facilities, sheltered
workshops, college placement officers, state education agencies, labor organizations, and
organizations for the handicapped) in meeting the commitment to provide meaningful
employment opportunities to qualified handicapped persons;
engage in recruiting activities at educational institutions that participate in training
handicapped persons, such as schools for the blind, deaf, or mentally handicapped;
establish meaningful contacts with appropriate social service agencies, organizations
dealing with handicapped individuals, and vocational rehabilitation agencies or facilities,
to obtain advice, technical assistance, and the applicant referrals; 28
picture handicapped employees in consumer, promotional, and help- wanted advertising

material; 29
make handicapped employees available for participation in career days, youth
motivation programs, and related activities; 30
participate in work-study programs with rehabilitation facilities in schools specializing
in the training or education of handicapped persons. 31
Contracts with sheltered workshops can be included in an affirmative action program if
the shop trains employees for the contractor that it is obligated to hire at full
compensation when they become "qualified handicapped individuals," as defined by the
OFCCP's Rehabilitation Act regulations. 32 However, such contracts are not a
substitute for the other affirmative action required by the Rehabilitation Act. 33
689 ----Outreach and recruitment of handicapped persons [SUPPLEMENT]
Regulations:
Footnotes
Footnote 28. 41 CFR 60-741.6(f)(4)-(6).
Footnote 29. 41 CFR 60- 741.6(f)(8).
Footnote 30. 41 CFR 60-741.6(i)(6).
Footnote 31. 41 CFR 60-741.6(i)(8).
Footnote 32. 41 CFR 60-741.2.
Footnote 33. 41 CFR 60- 741.6(j).
690 Assuring proper consideration of qualifications

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A contractor that has identified a problem with respect to its obligation to provide proper
consideration of job qualifications 34 concerning Vietnam-era and disabled veterans 35
and handicapped candidates 36 must modify personnel procedures to satisfy that
obligation and incorporate them into its affirmative action program. The procedures must
be designed to facilitate the OFCCP's review of how well the contractor is properly
considering individual qualifications.
The OFCCP gives examples of appropriate sets of procedures a contractor can use in
meeting this requirement, while also permitting contractors to develop any procedure
more appropriate to their circumstances. For example, the agency suggests that the
application or personnel form of each known disabled or Vietnam-era veteran 37 or
handicapped applicant or employee: 38
be annotated to identify each vacancy for which the applicant was considered, in a
format allowing quick retrieval for review by government compliance officers and
personnel officials;
identify each promotion and training program for which the employee was considered;
contain a statement, available on request, of the reasons why a candidate was rejected
for employment, promotion, or training, including a comparison of his qualifications to
those of the person selected, as well as a description of any accommodations 39
considered;
describe accommodations that made it possible to hire, promote, or train a veteran or
handicapped individual.
Other suggestions for addressing a contractor's problems in providing the proper
consideration to an individual's qualifications as required under VEVRA 40 and the
Rehabilitation Act, 41 include:
making all job-related physical and mental job qualification requirements 42 available
to all managers involved in recruiting, screening, selections, and promotions;
evaluating the total selection process, including training and promotion, to ensure
freedom from stereotyping disabled and Vietnam-era veterans or handicapped persons so
as to limit their access to jobs for which they are qualified.
690 ----Assuring proper consideration of qualifications [SUPPLEMENT]
Regulations:

Footnotes
Footnote 34. 684.
Footnote 35. 41 CFR 60-250.6(b).
Footnote 36. 41 CFR 60-741.6(b).
Footnote 37. 41 CFR Part 60-250, Appendix B.
Footnote 38. 41 CFR Part 60-741, Appendix C.
Footnote 39. 686.
Footnote 40. 41 CFR 60-250.6(i)(1)-(2).
Footnote 41. 41 CFR 60-741.6(i)(1)- (2).
Footnote 42. 685.
691 Improving personnel relations

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The OFCCP suggests several affirmative activities that a contractor can take to improve
personnel relations in conformity with its affirmative action obligations under VEVRA
and the Rehabilitation Act.
The agency specifically states that a contractor should:
carefully select and train all employees involved in recruiting, screening, selection,
promotions, discipline, and related processes affecting veterans 43 and handicapped
persons; 44
make special efforts to include qualified disabled and Vietnam era veterans 45 and
handicapped persons 46 on personnel relations staffs;
advise supervisors that their work performance will be evaluated partially on the basis
of their affirmative action efforts and results, and that harassment of employees placed
through affirmative action efforts is forbidden under both VEVRA 47 and the
691 ----Improving personnel relations [SUPPLEMENT]
Regulations:
Footnotes
Footnote 43. 41 CFR 60- 250.6(i)(3).
Footnote 44. 41 CFR 60-741.6(i)(3).
Footnote 45. 41 CFR 60-250.6(i)(5).
Footnote 46. 41 CFR 60-741.6(i)(5).
Footnote 47. 41 CFR 60- 250.6(h)(1)(i), 60-250.6(h)(1)(ii).
Footnote 48. 41 CFR 60-741.6(h)(1)(i), 60-741.6(h)(1)(ii).
3. Plans by Sponsors of Apprenticeship and Licensing Programs [692-700]
692 Affirmative action required in apprenticeship and licensing programs;

generally
View Entire Section

An employer seeking to obtain or keep a federal license or the sponsor of a federally
registered apprenticeship program may have to abide by certain affirmative action
requirements. One way the federal government promotes affirmative action is in the
form of denying or threatening denial of licenses or certificates for conducting certain
activities. For instance, Department of Labor regulations require joint apprenticeship
councils to engage in affirmative action as a condition for obtaining a certificate of
registration for their apprenticeship programs. 49 Furthermore, sponsors of
apprenticeship programs may be required to select apprentices according to certain
methods that ensure meeting affirmative action goals. 50
Also, the Federal Communications Commission (FCC) requires applicants for broadcast
license renewals to submit an employment profile showing a utilization of qualified
minorities and women within a "zone of reasonableness." 51
State aspects: State job discrimination laws sometimes contain affirmative action
requirements for licensees or apprenticeship program sponsors. 52
Footnotes
Footnote 51. Re WHEC, (1975) Inc. 52 FCC 2d 1079.
The constitutionality of FCC affirmative action licensing preferences is discussed at
693.
Footnote 52. These laws are noted and discussed in the Employment Coordinator
EP-27,251 et seq.
693 Constitutionality of affirmative action licensing preferences

View Entire Section
Congress has an obligation to enact legislation to right the wrongs of discrimination.
Although a race or ethnic criteria is normally reviewed closely, given this congressional
obligation, deference must be given to a program, such as that for obtaining or keeping a
broadcaster's license, which uses a "benign" racial classification adopted by an
administrative agency at Congress' explicit direction. Such programs, although not
remedial or specifically designed to compensate victims of past governmental or social

discrimination, are constitutionally permissible to the extent that they serve important
governmental objectives within Congress' powers, and are substantially related to
achieving those objectives. Furthermore, race- conscious classifications adopted by
Congress to address racial and ethnic discrimination do not have to meet the same
constitutional standard of scrutiny as do similar classifications prescribed by state and
local governments.
Thus, where two of the FCC's "benign" minority preference policies were
congressionally mandated and substantially related to the achievement of an important
governmental objective, they did not violate the Fifth Amendment's guarantee of equal
protection. The FCC policies were adopted in response to a congressional directive to
promote broadcast programming diversity. One of the challenged policies awards an
enhancement for minority ownership and participation in management when comparing
mutually exclusive applications for licenses for new radio or television broadcast
stations. Under the other policy, radio or television broadcasters whose qualifications to
hold a license are questioned may transfer that license before the FCC resolves the
matter, if the transferee is a minority enterprise that meets certain requirements. Both of
these minority preference policies may be distinguished from Richmond v J. A. Croson
Co. 53 where a minority set-aside program was adopted by a municipality, not by
Congress. 54
Observation: Metro Broadcasting, Inc. (above) makes a distinction between state

and federal legislation mandating affirmative action. Thus, although Croson may
require the strict scrutiny test to be applied to state and local government imposed
affirmative action preferences, this is not the test when Congresswhether to obtain a
license or for some other purposerequires affirmative action or other benign
race-conscious measures to achieve an important governmental objective.
Observation: Although Metro Broadcasting, Inc. only dealt with policies directed by
Congress involving licenses, the same reasoning should apply with respect to other
federally mandated affirmative action, such as that required by apprenticeship program
sponsors 55 if an important governmental objective is identified.
Footnotes
Footnote 54. Metro Broadcasting, Inc. v FCC (1990, US) 111 L Ed 2d 445, 110 S Ct
Footnote 55. 694-700.
694 Affirmative action requirements for apprenticeship program sponsors

View Entire Section

The sponsor of an apprenticeship program must commit itself in writing, absent an
exception, 56 to take affirmative action for minorities and women and pledge
nondiscrimination. 57 The plan must be reviewed and updated annually. 58 As part of
its obligations the sponsor must conduct a statistical analysis of whether it is deficient in
the utilization of minorities and women within the apprenticeship program. 59 Based
on the results of its assessment of "underutilization," the sponsor must establish goals and
timetables to increase the percentage of minorities and women in the training program.
60 The sponsor must also conduct a series of outreach and recruitment activities. 61
To ensure that minorities and women have an equal opportunity for selection as
apprentices and that full and equal opportunity in apprenticeship programs is promptly
achieved, a sponsor must also choose and describe in its affirmative action plan one of
the apprentice selection procedures set forth in the regulations. 62
However, the commitments contained in the sponsor's affirmative action program cannot
be used to discriminate against any qualified applicant or apprentice on a prohibited
basis. 63
Footnotes
Footnote 56. 695.
Footnote 57. 696.
Footnote 59. 29 CFR 30.4(e), discussed at 697.
Footnote 60. 29 CFR 30.4(d), discussed at 698.
Footnote 61. 29 CFR 30.4(c), discussed at 699.
b. The Affirmative Action Plan [695-700]
695 When must written affirmative action plans be created

View Entire Section
A sponsor of an apprenticeship program is required to adopt a written affirmative action

plan, 64 unless it submits to the Department of Labor (DOL) satisfactory evidence of its
compliance with an equal employment opportunity program. Such a program must
provide for the selection of apprentices and for affirmative action in apprenticeship,
including goals and timetables for women and minorities, and it must meet the
requirements of Title VII or Executive Order 11246. Such a program will qualify for this
exception only if its goals and timetables for women and minorities are equal to or
greater than the goals required by the regulations. 65 In addition, a sponsor of a
program which serves fewer than five apprentices need not adopt an affirmative action
plan or a selection procedure if the program was not adopted to circumvent the
regulations. 66
Footnotes
Footnote 65. 29 CFR 30.3(e).
696 Nondiscrimination pledge

View Entire Section
A sponsor's commitment to take affirmative action includes a pledge to provide equal
opportunity in apprenticeship regardless of race, color, religion, national origin, or sex.
67
Recommendation: A sponsor should include the pledge as a part of its written

affirmative action plan.
Footnotes
697 Utilization analysis requirement

View Entire Section
As part of its affirmative action plan, an apprenticeship program sponsor must make a
written assessment of whether minorities and women are adequately represented in its
apprenticeship program. This assessment involves performing a statistical analysis of
whether minorities and women are being "underutilized" in the training program. 68
"Underutilization" refers to when there are fewer minorities or women in the particular
craft or crafts represented by the program than would reasonably be expected in view of
several factors. 69 These factors include:
the size of the working-age minority and female population in the program sponsor's
labor market area; 70
the size of the minority and female labor force in the program sponsor's labor market
area; 71
the percentage of minority and female participation as apprentices in the particular craft
as compared with the percentage of minorities and women in the labor force in the
program sponsor's labor market area; 72
the percentage of minority and female participation as journeypersons employed by the
employer or employers participating in the program as compared with the percentage of
minorities and women in the sponsor's labor market area and the extent to which the
sponsor should be expected to correct any deficiencies through the achievement of goals
and timetables for the selection of apprentices; 73
the general availability of minorities and women with present or potential capacity for
apprenticeship in the program sponsor's labor market area. 74
Caution: This is a different availability analysis than is required in affirmative action

programs for minorities and women conducted by federal contractors. 75
Footnotes
Footnote 69. 29 CFR 30.4(d)(3).
Footnote 70. 29 CFR 30.4(e)(1).
Footnote 71. 29 CFR 30.4(e)(2).
Footnote 72. 29 CFR 30.4(e)(3).
Footnote 73. 29 CFR 30.4(e)(4).
Footnote 74. 29 CFR 30.4(e)(5).
698 Establishing goals and timetables where deficiencies exist

View Entire Section

Based on the results of the required utilization analysis, 76 an apprenticeship program
sponsor must include in its affirmative action plan percentage goals and timetables for
the admission of minority or female applicants into the pool of eligible applicants, 77 if
there are deficiencies in the utilization of minorities or women in the crafts represented
by the program. 78
In establishing goals, the sponsor should consider the results that could be reasonably
expected from its good-faith effort to make its overall affirmative action program work.
A single goal for minorities and a separate single goal for women is acceptable unless a
particular group is employed in a substantially disparate manner, in which case separate
goals must be established for that group. For example, a separate goal would be required
if a specific minority group of women were underutilized, even if the sponsor had
achieved its standards for women generally. 79
In order to assist a sponsor in establishing goals and timetables, the Secretary of Labor,
or the Secretary's designate, must make available the data and information on minority
and female population and labor force characteristics for each Standard Metropolitan
Statistical Area, and for other special areas as appropriate. 80
If the sponsor determines that it has no deficiencies, goals and timetables do not need to
be established, but the affirmative action plan must include a detailed explanation of their
omission. 81 However, where the sponsor fails to submit goals and timetables or
submits unacceptable goals and timetables, and the Department of Labor determines that
the sponsor has deficiencies, the Department will establish goals and timetables that the
sponsor must attempt to attain. 82
Footnotes
Footnote 76. 697.
Footnote 77. 404 et seq.]
Footnote 78. 29 CFR 30.4(d)(1)- (2).
Footnote 81. 29 CFR 30.4(d)(3).
Footnote 82. 29 CFR 30.4(d)(4).
699 Outreach and recruitment requirements

View Entire Section

An acceptable affirmative action program for apprenticeship must include some
"outreach and positive recruitment." Although the scope of any particular affirmative
action plan for an apprenticeship program depends on a number of factors, including the
size and type of the program and its resources, the sponsor is required to undertake a
"significant number" of appropriate activities in order to meet its affirmative action
obligations. Whenever special circumstances warrant, the Department of Labor may
provide financial or other assistance as it deems necessary to implement these
requirements. 83
In its affirmative action plan, an apprenticeship program's sponsor must describe in
writing the specific steps that it intends to take with respect to each of the following
activities:
dissemination of information concerning the apprenticeship program and the sponsor's
EEO policy, including a description of the frequency of dissemination and the recipient
entities; 84
participation in annual workshops conducted by employment service agencies; 85
cooperation with local school boards and vocational education systems to assist students
in qualifying for entry into apprenticeship programs; 86
internal communication to foster understanding, acceptance, and support among the
sponsor's officers, supervisors, and other employees; 87
programs for the positive recruitment and preparation of potential applicants for
apprenticeship; 88
affording full opportunity for admission into the apprenticeship program of those who
have completed programs of preapprenticeship, preparatory trade training, or others
designed to afford related work experience or to prepare candidates for apprenticeship;
89
utilization of journeypersons to assist in implementing the affirmative action program;
90
granting advance standing or credit on the basis of previously acquired experience,
training, skills, or aptitude for all applicants equally; 91
admitting to apprenticeship over-age persons when necessary to assist the sponsor in
achieving its affirmative action obligations; 92
taking such other action as may be necessary to ensure that the recruitment, selection,
employment, and training of apprentices during apprenticeship, is without discrimination
on a prohibited basis. 93 94
Footnotes
Footnote 84. 29 CFR 30.4(c)(1).
Footnote 85. 29 CFR 30.4(c)(2).
Footnote 86. 29 CFR 30.4(c)(3).
Footnote 87. 29 CFR 30.4(c)(4).
Footnote 88. 29 CFR 30.4(c)(5).
Footnote 89. 29 CFR 30.4(c)(6).
Footnote 90. 29 CFR 30.4(c)(7).
Footnote 91. 29 CFR 30.4(c)(8).
Footnote 92. 29 CFR 30.4(c)(9).
Footnote 93. 696.
Footnote 94. 29 CFR 30.4(c)(10).
700 Measuring affirmative action compliance

View Entire Section
Compliance with the requirements of affirmative action in apprenticeship programs is
measured by whether the sponsor has met its goals within its timetables, or failing that,
whether it has made good-faith efforts to meet its goals and timetables. A sponsor's
"good-faith efforts" will be judged by whether it is following its affirmative action
program and attempting to make it work, including changing the program when
necessary to achieve the maximum effectiveness in obtaining its goals. 95
Footnotes
VII. EMPLOYMENT TERMS AND CONDITIONS [701-1054]

Research References
5 USCS 2301, 3301; 20 USCS 1681; 29 USCS 623, 794; 38 USCS 4221; 42
USCS 1981, 2000, 2000d, 2000e-2, 12112
P.L. 102-166
29 CFR Part 1625
ALR Index, Civil Rights and Discrimination; Civil Service; Equal Pay Act; Labor and
Employment
1. Overview [701-705]
701 Generally
View Entire Section
Go to Supplement
All federal and state job discrimination laws 96 regulate the "terms, conditions, or
privileges of employment" to some extent. The following discussion identifies and
describes the provisions of federal job discrimination statutes and Executive Orders
applicable to employers that explicitly cover all "terms, conditions, or privileges of
employment," as well as those that may reasonably be construed to cover all terms,
conditions, or privileges of employment. Unless otherwise indicated, prohibitions
concerning "terms, conditions, or privileges of employment" apply to all grounds of
discrimination forbidden by the statute.
Title VII of the Civil Rights Act of 1964 97 the Americans with Disabilities Act (ADA),
98 and the Age Discrimination in Employment Act (ADEA) 99 explicitly prohibit
discrimination in all "terms, conditions, or privileges of employment." Furthermore,
Title VII, 1 the ADA, 2 and the ADEA 3 state that an employer may not limit,
segregate, or classify employees in any way which would deprive or tend to deprive an
individual of employment opportunities or otherwise adversely affect their status as
employees.
Furthermore, on its effective date, which varies with the number of employees the
employer has, 4 the ADA also prohibits discrimination involving participation in a
contractual or other relationship that has the effect of discriminating against an employee.
Examples of such relationships mentioned in the statute include those with employment
or referral agencies, labor unions, and organizations providing fringe benefits, or
apprenticehip or other training to employees. 5
Executive Order 11141 prohibits age discrimination in all "terms, conditions, or

privileges of employment" by government contractors. 6
Furthermore, with regard to employment funded by federal financial assistance, the
following laws expressly prohibit individuals from "being subjected to discrimination":
Section 504 of the Rehabilitation Act; 7
Title VI of the Civil Rights Act; 8
Title IX of the Education Amendments of 1972. 9
Also, under Executive Order 11246, contractors cannot discriminate against any
applicant or employee, 10 under the veterans' statute, persons are not to be denied any
incident or advantage of employment, 11 and federal merit system legislation forbids
discrimination in all aspects of personnel management. 12
Observation: The above laws, which do not expressly prohibit discrimination in all
terms and conditions of employment, nevertheless broadly prohibit discrimination in
such a way as to implicitly cover all terms and conditions of employment.
contracts, guaranteed under 42 USCS 1981 13 as amended by the Civil Rights Act of
1991, 14 includes the making, performance, modification, and termination of contracts,
as well as the enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship. 15 This list is intended to be illustrative rather than exhaustive
16 and is intended to apply in the context of employment. 17
The Civil Rights Act of 1991's amendment of 1981 supersedes 18 the Supreme Court's
ruling that 1981's application was limited in the employment context to hiring 19 and
promotion decisions 20 that involved the formation of new contracts, and did not reach
post-formation conduct. The Court reasoned that resort to 1981, which requires no
administrative review or opportunity to conciliate, in claims alleging discriminatory
terms and conditions of employment would undermine Title VII's detailed procedures for
administrative resolution of employment discrimination claims. 21
Case authorities:
Association of government employees failed to state 42 USCS 1981 employment
discrimination claim, where no evidence was offered supporting claim that city
intentionally discriminated against employees, or that denial of promotions amounted to
denial of opportunity to form new and distinct employment relationships. National Ass'n
of Gov't Employees v City Pub. Serv. Bd. (1994, CA5 Tex) 40 F3d 698.
Anesthesiologist's claim that he was discriminated against by hospital on basis of his
Philippine ancestry would fail, where he failed to meet hospital requirement that he
become board certified, and anesthesiologist refused hospital director's offer of $70,000
for 6 months, including time off to study for board exam. Donaire v NME Hosp. (1994,
CA11 Fla) 27 F3d 507, 65 BNA FEP Cas 674, 8 FLW Fed C 439.
Footnotes
Footnote 96. As to state job discrimination laws regulating terms and conditions of
employment, see Employment Coordinator 20,056 et seq.
Footnote 5. 42USCS 12112(b)(2).
Footnote 10. 42 USCS 2000 note 202(1).
Footnote 14. P.L. 102-166 101(2).

Footnote 21. Patterson v Mclean Credit Union (1989) 491 US 164, 105 L Ed 2d 132,
702 What are "terms, conditions, or privileges of employment" under Title VII
View Entire Section
The phrase "terms, conditions, or privileges of employment" in Title VII 22 is an
expansive concept demonstrating a congressional intent to define discrimination in the
broadest possible terms. In adopting it, Congress chose neither to enumerate specific
instances of discriminatory practices nor to draw clear lines as to what are prohibited
activities. Rather, it meant to allow for change in basic notions of what is permissible. 23
A "term, condition, or privilege of employment" under Title VII is broad enough to
encompass a variety of on-the-job matters. For example, the concept includes the job
titles and duties of a transferred or demoted employee, despite the absence of economic
injury, 24 and a total working environment so heavily polluted with discrimination that
it destroys the emotional and psychological stability of minority workers. 25
A "term, condition, or privilege of employment" under Title VII may also extend to
matters of management and corporate ownership. For example, the concept encompasses
restricting membership in an employee board of operatives to white men, where the
board advises corporate management on matters affecting employee welfare and provides
a channel of communications between labor and management, 26 and limiting the sale of
company stock to employees of a particular national origin, where preferential wages,
hours, and assignments are tied to stock ownership. 27
However, the opportunity to
purchase stock is not a "term, condition, or privilege of employment" under Title VII
where the employee's hiring or status does not include the right to become an owner of
the enterprise. 28
The phrase also encompasses the granting or denial of partnerships in an accounting firm
29 and in a law firm. 30
Footnotes
Footnote 22. 701.
Footnote 23. Rogers v EEOC (1971, CA5) 454 F2d 234, 4 BNA FEP Cas 92, 4 BNA
Practice References Discriminatory job assignment practices. 21 Am Jur Trials 1,
Employment Discrimination Action Under federal Civil Rights Acts 31, 32.
Footnote 24. Cox v American Cast Iron Pipe Co. (1986, CA11) 784 F2d 1546, 40 BNA
For a discussion of how contractual relationships affect the terms and conditions of
employment under Title VII, see 703.
Footnote 25. Rogers v EEOC (1971, CA5) 454 F2d 234, 4 BNA FEP Cas 92, 4 BNA
FEP Cas265, 4 CCH EPD 7597, cert den 406 US 957, 32 L Ed 2d 343, 92 S Ct 2058,
Footnote 26. Pettway v American Cast Iron Pipe Co. (1970, ND Ala) 332 F Supp 811, 2
BNA FEP Cas 437, 4 BNA FEP Cas 115, 2 CCH EPD 10159, 4 CCH EPD 7651, 62
CCH LC 9388, revd on other grounds (CA5) 494 F2d 211, 7 BNA FEP Cas 1115, 7
CCH EPD 9291.
Cas 225, 31 BNA FEP Cas 50, 30 CCH EPD 33128, cert den 467 US 1251, 82 L ED
2d 838, 104 S Ct 3533, 34 BNA FEP Cas 1800.
Footnote 28. Martinez v Oakland Scavenger Co. (1987, ND Cal) 680 F Supp 1377.
Footnote 29. Hopkins v Price Waterhouse (1990, App DC) 920 F2d 967, 54 BNA FEP
Cas 750, 55 CCH EPD 40413.
Footnote 30. Ezold v Wolf, Block, Schorr & Solis- Cohen (1990, ED Pa) 751 F Supp
703 How contractual relationships affect "terms, conditions, and privileges of

employment" under Title VII
View Entire Section
Once a contractual relationship of employment is established, Title VII governs certain
aspects of that relationship, including the provision governing "terms, conditions, or
privileges of employment." Therefore, "terms, conditions, or privileges of employment"
clearly include benefits that are part of an employment contract. For example, a promise
to consider an associate for partnership, if it induced the applicant to accept employment,
is a term, condition, or privilege of employment that the employer must dispense in a
nondiscriminatory fashion. Furthermore, a benefit, if not a contractual right of
employment, may qualify as a "privilege" of employment if it is part and parcel of the
employment relationship, although the employer would be free under the employment
contract not to provide the benefit at all. Benefits that comprise the "incidents of
employment" or form "an aspect of the relationship between the employer and
employees" may not be doled out in a discriminatory fashion, even if the employer is
under no contractual obligation to furnish them. Thus, a firm's alleged explicit use of the
prospect of ultimate partnership to induce young lawyers to join the firm, coupled with
its practice of terminating associates' employment if they are not elected to become
partners, would indicate that partnership consideration was a "term, condition, or
privilege" of an associate's employment. 31
Similarly, a hospital's promise to a
physician that staff privileges would be granted upon successful completion of a
residency program may also qualify as a "term, condition, or privilege" of employment
under Title VII. 32
Recommendation: Any promise relied on by a protected applicant or employee in

accepting or continuing in employment may become a "term, condition, or privilege of
employment" subject to scrutiny under Title VII. Accordingly, employers must take
care to instruct their recruiters and supervisors as to just what they can and should not
promise employees. Using a written list of "do's" and "don't's" makes the recruiters'
and supervisors' jobs easier, and provides written evidence of the scope of their
authority if an employee later claims that oral promises enforceable under Title VII
were made.
Footnotes
Footnote 32. Mallare v St. Luke's Hospital of Bethlehem (1988, Ed Pa) 1988 US Dist
LEXIS 13912.
704 How post-employment relationships affect "terms, conditions, and privileges

of employment" under Title VII
View Entire Section
Post-employment relationships that have a significant connection to the previous
employment also may qualify as a "term, condition, or privilege of employment" under
Title VII. For example, a benefit plan required by state law to be provided to former
employees was a "term, condition, or privilege of employment" because it was offered as
a direct result of the employment relationship. 33
Footnotes
Footnote 33. EEOC v South Dakota Wheat Growers Assoc. (1988, DC SD) 683 F Supp
705 What are "terms, conditions, or privileges of employment" under ADEA

View Entire Section

Like Title VII, 34 the ADEA's ban on discrimination with respect to the "terms,
conditions, or privileges of employment" 35 encompasses a benefit that is part and
parcel of the employment relationship. Therefore, the employer may not dole out such
benefits in a discriminatory fashion, even if it would be free not to provide the benefit at
all. For example, the unrestricted ability to "bump" less senior employees from a
position is a "privilege of employment" under the ADEA that must be accorded all
employees regardless of their age. 36 Also, the payment of "Guaranteed Annual
Income" (GAI) to longshoremen pursuant to their collective bargaining agreement
constituted a privilege of employment subject to scrutiny under the ADEA. GAI was
paid to every eligible longshoreman who was ready, willing and able to work, but for
whom no work was available. 37
However, workers' compensation benefits were not found to be terms, conditions, or
privileges of employment within the meaning of the ADEA. 38
Observation: Assuming that the ADEA, like Title VII, covers "terms, conditions, or
privileges of employment" once a contractual employment relationship is established
as well as benefits that are part and parcel of the relationship though not contractually
guaranteed, 39 then the provision of worker's compensation benefits under state law
could be viewed as an incident of that relationship whereby the state affords the
employer protection from lawsuits over work-related injuries in return for the
employer's provision of no-fault compensation for those injuries. 40
Footnotes
Footnote 34. 702.
Footnote 35. 701.
Footnote 36. Trans World Airlines, Inc. v Thurston (1985, US) 83 L Ed 2d 523, 105 S
Footnote 37. Potenze v New York Shipping Association, Inc. (1986, SD NY) 39 CCH
EPD 35974.
Footnote 38. O'Neil v Department of Transp. (1985, Fla) 468 So 2d 904, 10 FLW 157,
cert den (US) 474 US 861, 88 L Ed 2d 144, 106 S Ct 174.
Footnote 39. 703.
Footnote 40. For a discussion of the very limited discrimination protections given to a
bona fide employee benefit plan under the ADEA, see 814 et seq.
2. Effect of Seniority Systems on Terms and Conditions of Employment [706-724]

a. Overview [706]
706 Generally
View Entire Section
In most cases, federal and state laws designed to ensure fairness in employment practices
do not restrict the operation of genuine seniority systems. 41 Many of those laws, in
fact, contain explicit exemptions for "bona fide" seniority systems. 42 Indeed, the
courts have indicated that in many instances, an employer must continue to follow a
seniority system that it has been using even though it may want to depart from the system
to grant employment opportunitites to minorities or women. 43
In addition, while no
law requires any private employer that does not have a seniority system to adopt one, a
court may require an employer to apply a system that it has used for some employees to
other employees, when the exclusion of the other employees from the system has resulted
from some unlawful employment practice. 44
State Aspects: Many state fair employment practices laws provide exceptions from
their requirements for a bona fide seniority system that is not intended to discriminate
on a prohibited basis. 45
Footnotes
Footnote 41. As to what constitutes a genuine seniority system, see 707 et seq.
Footnote 42. As to exceptions for "bona fide" systems, see 706 et seq. A discussion
regarding the definition of a "bona fide" system appears at , see 714 et seq.
Footnote 43. Firefighters Local Union No. 1784 v Stotts (1984) 467 US 561, 81 L Ed2d
Annotation: Use of employment seniority in layoff and recall, promotion, or transfer
of employees as unlawful employment practice under Title VII of Civil Rights Act of
1964 (42 USCS 2000e et seq.), 34 ALR Fed 18.
Practice References Violations arising out of seniority system. 21 Am Jur Trials 1,
Footnote 44. Franks v Bowman Transp. Co. (1976) 424 US 747, 47 L Ed2d 444, 96 S
Ct 1251, 12 BNA FEP Cas 549, 11 CCH EPD 10777, 21 FR Serv 2d 469; International
Brotherhood of Teamsters v United States(1977) 431 US 324, 52 L Ed 2d 396, 97 S Ct
Footnote 45. For a discussion concerning the various state seniority system exceptions,
see Employment Coordinator EP-20,145 et seq.
b. Establishing the Existence of a Seniority System [707-709]
707 What is a seniority system

View Entire Section
"Seniority" is a term that connotes length of employment. A "seniority system" is a
scheme that, alone or in tandem with "non-seniority criteria", 46 allots to employees
ever- improving employment rights and benefits as their relative lengths of pertinent
employment increase. The principal feature of any "seniority system" is that preferential
treatment is dispensed on the basis of some measure of time served in employment.
These are "commonly accepted concepts" regarding seniority systems. 47
Similarly,
any bona fide seniority system under the ADEA must be based on length of service as the
primary criterion. 48 For example, a school board's pay schedule was not a bona fide
seniority system since it did nothing more than increase employees' pay annually, based
on the position to which they had been assigned in 1975, without reference to length of
service or date of hire. 49
Based on the "time-employed" concept developed in California Brewers, an employer's
preference for internal applicants for job openings was a valid component of a seniority
system under Title VII, because it was based on time employed. 50 Conversely, the use
of "composite scores" to determine which police officers hired on the same day were to
be laid off was not a valid component of a seniority system, because the scores did not
embody the "time-related core concept of seniority." 51
Footnotes
Footnote 46. 709.
Footnote 47. California Brewers Asso. v Bryant (1980) 444 US 598, 63 L Ed 2d 55,
Footnote 49. Mitchell v Jefferson County Bd. of Educ. (1991, CA11) 936 F2d 539, 56
BNA FEP Cas 644, 30 BNA WH Cas 730, 56 CCH EPD 40897, 119 CCH LC 35512.
Footnote 50. Allen v Prince George's County (1984, CA4) 737 F2d 1299, 38 BNA FEP
Cas 1229, 34 CCH EPD 34506.
Footnote 51. U.S. v Cincinnati (1985, CA6) 771 F2d 161, 38 BNA FEP Cas 1402, 37
CCH EPD 35463.
708 Can a seniority system exist outside of a collective bargaining agreement

View Entire Section
There is some disagreement as to whether seniority rights protected by Title VII's
seniority system exception 52 may be derived from systems imposed unilaterally by an
employer, or only from systems negotiated during collective bargaining. The EEOC has
suggested that Title VII's bona fide seniority exemption may not apply unless the
seniority system is part of a collective bargaining agreement, 53 based on the Supreme
Court's declaration that the exemption was introduced into Title VII in order to resolve
the conflict between existing collectively bargaining seniority rights and Title VII's
general ban on certain types of discrimination. 54
That is, seniority rights are more
than simple employee expectations based on privileges or benefits granted by the
employer, but are collectively bargained and enforceable under state and federal law. 55
Nonetheless, after Teamsters (above), a district court in the Third Circuit concluded that
a company policy regarding promotions, recall rights, and transfers that was based on the
company-seniority of qualified employees was entitled to protection as a seniority system
under Title VII, although it was not created in the process of collective bargaining with a
union. The court found that neither Title VII's description of a bona fide seniority system
nor Teamsters supported the conclusion that the exception applies only to
union-management negotiated systems and not to unilateral company systems. Instead,
Congress enacted the exception to avoid penalizing workers for an employer's pre-Title
VII discrimination. The company's consistent and objective application of its policy over
a twenty- year period created the kind of employee expectations that Title VII's bona fide
seniority system exemption was designed to protect. 56
Footnotes
Footnote 52. 710.
Footnote 54. International Brotherhood of Teamsters v U.S. (1977) 431 US 324, 52 L
Footnote 56. EEOC v E.I. Du Pont de Nemours & Co. (1978, DC Del) 445 F Supp 223,
16 BNA FEP Cas 847, 16 BNA FEP Cas 881, 16 CCH EPD 8146.
709 What "threshold requirements" are included in a typical seniority system

View Entire Section

In a case involving the application of Title VII's bona fide seniority system exception, the
Supreme Court attempted to define what types of seniority requirements are part of, or
separate from the seniority system itself. The case involved a provision in the collective
bargaining agreement that created employment classifications of "permanent" and
"temporary," based not on total tenure in a position, plant, or industry, but on a requisite
number of weeks worked within a calendar year. The agreement provided two parallel
ladders of seniority benefits, and the provision in issue was a "threshold requirement" for
moving from one benefit ladder to the other. As such, it was an "ancillary rule"
necessary to accomplish the basic purposes of the seniority system, without being
directly related to length of employment itself. Other examples of "ancillary rules"
included those that establish what employment conditions are to be affected by seniority,
the types of passage of time that count toward seniority, and when seniority begins and is
forfeited. Examples of "threshold requirements" the court found to be outside the
"ancillary rule" concept, and thus not entitled to be considered part of a seniority system,
were educational standards, aptitude and physical tests, and standards that "give effect to
subjectivity." 57
Observation: California Brewers essentially defines the requirements excluded from

a seniority system as those which have been found to adversely effect the employment
opportunities of various groups protected by Title VII. Thus, "threshold requirements"
will not be part of a seniority system if they have an unlawful adverse impact. 58
Caution: California Brewers' discussion of the elements included in a seniority

system in the context of Title VII's seniority system exemption does not address the
separate inquiry of whether the seniority system is "bona fide". 59
Apply the "ancillary rule" concept of California Brewers the Sixth Circuit held that a
"threshold requirement" that ranked police officers who were hired on the same day, for
purposes of layoff, on the basis of composite scores, was not an essential part of the
seniority system. 60
Prior to California Brewers, the Fifth Circuit determined that a requirement that
employees who transferred between departments begin their new assignments at entry
level positions was a condition placed on the transfer, "wholly extraneous to the
prevailing seniority system." Thus, it was not a seniority rule. The requirement also had
no time-based component for accumulating benefits other than a ten-day trial period for
exercising retreat rights. 61
Footnotes
Footnote 57. California Brewers Asso. v Bryant (1980) 444 US 598, 63 L Ed 2d 55,
Footnote 58. As to adverse impact, generally, see 2699 et seq.
Footnote 59. As to a seniority system's status as a "bona fide" system, see 714-716.
Footnote 60. U.S. v Cincinnati (1985, CA6) 771 F2d 161, 38 BNA FEP Cas 1402, 37
CCH EPD 35463.
Footnote 61. Parson v Kaiser Aluminum & Chemical Corp. (1978, CA5) 583 F2d 132, 18
c. Seniority System Exceptions [710-713]
710 Under Title VII

View Entire Section
Title VII of the Civil Rights Act of 1964 permits an employer to apply different terms,
conditions, or privileges of employment in accordance with a bona fide 62 seniority
system, provided that these differences do not result from an intention to discriminate on
the basis of race, color, religion, national origin, or sex. 63 The purpose of this
exception is to make clear that the routine application of a bona fide seniority system is
not unlawful under Title VII, even when it perpetuates discrimination that occurred prior
to the enactment of Title VII. Congress intended to make it legal for employees with
vested seniority rights to continue to exercise those rights, even at the expense of pre-Act
discrimination victims. 64
Likewise, the Act immunizes bona fide seniority systems
which perpetuate post-Act discrimination as well. 65
Footnotes
Footnote 62. 714-716.
Footnote 65. United Air Lines, Inc. v Evans (1977) 431 US 553, 52 L Ed 2d 571, 97 S
711 Under the ADEA

View Entire Section

The ADEA permits employers, employment agencies, or labor organizations to maintain
or observe the terms of a bona fide seniority system that is not intended to evade the
ADEA's purposes, except that no seniority system may require or permit the involuntary
retirement of any individual because of his age. 66 The EEOC will closely scrutinize
any seniority system that violates Title VII 67 to ensure that it is in fact bona fide for
purposes of the ADEA exception. 68
Examples of the legitimate observance of the ADEA's seniority system exception
include:
a school board that was required by state law to hire the qualified applicant with the
most seniority; 69
an employer who abolished an employee's job but gave him the option of working for an
associate company or taking a different position at the bottom of the seniority ladder. 70
Furthermore, a seniority system must comply with the statute regardless of its date of
adoption. 71
The effective date of the Older Workers Benefit Protection Act amendments to the
ADEA's benefit plan exception may be modified based on the existence of a collective
bargaining agreement. 72
Footnotes
Footnote 66. 29 USCS 623(f)(2)(A).
Footnote 67. 710.
Footnote 69. Dalton v Mercer County Bd. of Education (1989, CA4) 887 F2d 490, 51
Footnote 70. Gimbert v McAllister Brothers, Inc. (CA4) No. 84-1836, 5/9/85.
Footnote 71. 29 USCS 623(k).
The ADEA's requirements for the bona fide seniority system exception are discussed at
715.
Footnote 72. For further discussion, see 814 et seq.
712 Under other federal laws
View Entire Section

A bona fide seniority system exception may be read into federal EEO laws that have no
explicit seniority exemption, so that federal EEO rules will be consistent. Thus, a
seniority system that is found not to violate Title VII is also not violative of 42 USCS
1981 and 1983, the early civil rights acts. 73
Observation: While the Rehabilitation Act does not expressly contain a seniority
system exception, Title VII's exemption for bona fide seniority systems 74 has been
applied to 501 of the Rehabilitation Act. 75
Similarly, although Executive Order 11246 does not contain a provision similar to Title
VII's bona fide seniority system exception, the Executive Order cannot render a seniority
system unlawful if it has expressly been found lawful under Title VII. 76
Footnotes
Footnote 73. Chance v Board of Examiners (1976, CA2) 534 F2d 993, 11 BNA FEP Cas
1450, 13 BNA FEP Cas 150, 11 CCH EPD 10633, 12 CCH EPD 11091, cert den 431 US
965, 53 L Ed 2d 1060, 97 S Ct 2920, 14 BNA FEP Cas 1822, 14 CCH EPD 7604;
Waters v Wisconsin Steel Works of International Harvester Co. (1974, CA7) 502 F2d
A bona fide seniority system protected a seniority based layoff that was negotiated as part
of the collective bargaining agreement from challeges under 1981, 1983, and 1985,
even though the layoffs effectively nullified minority hiring goals under a voluntary
affirmative action plan and had an adverse impact on minority employees. NAACP,
Detroit Branch v Detroit Police Officers Assn. (1990, CA6) 900 F2d 903, 52 BNA FEP
Cas 1001, 53 CCH EPD 39797.
Footnote 74. 710.
Footnote 75. This application is discussed under the topic of handicap discrimination, in
the context of the effect of collective bargaining on the duty to provide a reasonable
accommodation, at 203.
Footnote 76. United States v East Texas Motor Freight System, Inc. (1977, CA5) 564
F2d 179, 16 BNA FEP Cas 163, 15 CCH EPD 7961, affd (CA5) 643 F2d 304, 25 CCH
EPD 31784; United States v Trucking Management, Inc. (1981) 213 App DC 191, 662
713 Proving the seniority system exception

View Entire Section

There is a division of authority as to who bears the burden of proving Title VII's bona
fide seniority system exception. For example, some courts have held plaintiffs alleging
discrimination with respect to seniority systems are responsible for proving that the
systems were not "bona fide", 77 while other courts have held that the seniority system
exception is an affirmative defense which must be proved by the defendants. 78
Putting the burden of proving the defense on the employer has been justified by fairness
considerations, because the defendant stands to benefit from the exception's departure
from Title VII's normal application, and the plaintiff usually has less access to evidence
bearing on the legitimacy of seniority systems. Furthermore, statutory exceptions
customarily have been treated as affirmative defenses. 79
In an ADEA challenge to the defendants' adoption of a seniority list combining the pilots
and flight engineers of two merged airlines, the burden was on the defendants to show
that the list was not a "subterfuge" for age discrimination. 80 After that case was
decided, the Older Workers Benefit Protection Act amendments to the ADEA 81
clarified the fact that the employer always bears the burden of proving that the exception
applies. 82
Footnotes
Footnote 77. Younger v Glamorgan Pipe & Foundry Co. (1979, WD Va) 20 BNA FEP
EPD 30908; Day v Patapsco & B. R. R. Co. (1981, DC Md) 504 F Supp 1301, 25 BNA
FEP Cas 1573.
Footnote 78. Seventh CircuitSexton v Beatrice Foods Co. (1980, CA7) 630 F2d 478,
23 BNA FEP Cas 717, 23 CCH EPD 31178
Tenth CircuitFirefighters, Inc. for Racial Equality v Bach (1985, DC Colo) 611 F Supp
166, 38 BNA FEP Cas 19.
Eleventh CircuitJackson v Seaboard Coast Line Railroad (1982, CA11) 678 F2d 992.
Footnote 79. Firefighters, Inc. for Racial Equality v Bach (1985, DC Colo) 611 F Supp
166, 38 BNA FEP Cas 19.
Footnote 80. Cook v Pan American World Airways (SD NY) No. 84 Civ 1651, 11/12/86.
The ADEA's requirement that a seniority system not be a "subterfuge" to evade the
purposes of the statute is discussed at 715.
Footnote 82. 29 USCS 623(f)(2)(B).
d. When is a Seniority System Bona Fide [714-720]

(1). In General [714%716]
714 Requirement that there be no intent to discriminate under Title VII

View Entire Section
Not all seniority systems are entitled to the seniority system exceptions in Title VII and
the ADEA. Just those which are "bona fide" qualify under Title VII. 83 A seniority
system is bona fide under Title VII, and thus immune to successful challenge, if it is free
of intentional discrimination whether the system was created before or after Title VII's
effective date. 84
In evaluating whether a seniority system is free of intentional discrimination, the totality
of circumstances in the development and maintenance of the system is relevant. 85
Four questions used by in evaluating the discriminatory intent present in a seniority
system are:
(1) did the system have its "genesis" in unlawful discrimination;
(2) was the system negotiated and maintained free from any illegal purpose;
(3) does the system discourage all employees equally from transferring between separate
seniority units;
(4) if seniority units are in separate bargaining units, is the system's structure rational and
in conformity with industry practice. 86
These four questions form the basic guidelines, but are not exhaustive of all of the factors
a court should consider in determining whether discriminatory intent is present. 87
Observation: These four questions do not neatly divide the various types of evidence
into separate categories. For instance, if there were discriminatory statements made in
collective bargaining negotiations, a court could reasonably consider them under
question (1) or (2). The real inquiry is whether discriminatory intent is present, and the
questions merely provide a framework for that analysis. The way in which a seniority
system is communicated to employees affected by it is another factor that may
determine whether the system is bona fide or not. 88
While discriminatory intent cannot be presumed solely from a showing that the operation
of a seniority system has an adverse impact on a group protected by Title VII, that
evidence can be taken into consideration as part of the totality of the circumstances under
which a court may determine whether an actual discriminatory motive is present. 89
Observation: If the adverse impact of a seniority system, alone, was sufficient to

demonstrate that the system contains discriminatory intent, the bona fide seniority
system exception in Title VII would be meaningless. Discriminatory intent must be
demonstrated in all disparate treatment cases, whether or not a seniority system is in
issue. The additional protection to seniority systems provided by the exception lies in
the requirement that discriminatory intent be shown before the benefits provided by the
operation of a neutral system will be disturbed, even if they are tainted by having a
discriminatory impact against a protected group.
An employer's legitimate business reasons for adopting and maintaining a seniority
system are relevant only insofar as they reflect the presence or absence of discriminatory
intent. Rational business reasons will not totally eliminate the possibility of purposeful
discrimination. 90
State Aspects: Many state EEO statutes contain an explicit exception permitting
employers to apply different terms and conditions of employment to employees
pursuant to a bona fide seniority system. 91
Footnotes
Footnote 83. 710.
Footnote 84. American Tobacco Co. v Patterson (1982) 456 US 63, 71 L Ed 2d 748,
102 S Ct 713, 28 CCH EPD 32561.
These four questions are discussed in detail at 717-720.
Footnote 87. Pullman-Standard, Div. of Pullman, Inc. v Swint (1982) 456 US 273, 72 L
Footnote 88. As to communications requirements, see 716.
Footnote 90. Harvey v United Transp. Union (1989, CA10) 878 F2d 1235, 51 BNA FEP
Cas 394, 50 CCH EPD 39104.
Footnote 91. Employment Coordinator EP-20,145 et seq.
715 Requirements for the seniority system exception under the ADEA
View Entire Section

Prior to the effective date of the Older Workers Benefit Protection Act amendments to
the ADEA, 92 the ADEA stated that the seniority system exception could not be a
"subterfuge" to evade the purposes of the statute. The amendments now provide the
exception for bona fide seniority systems that are "not intended" to evade the purposes of
the Act. 93
Observation: The amendments appear to apply the same standard for evaluating
whether a seniority system is "bona fide" as are applied under Title VII. 94
However, even before the amendments to the ADEA the Second Circuit held that the
ADEA's requirement that a seniority system not be a "subterfuge" to evade the statute
implies the same requirement of a lack of discriminatory or evasive intent as does the
"bona fide" requirement in Title VII. Thus, the fact that the older employees of two
merged companies would fare better had the companies adopted a different seniority
system than a merged seniority list does not show that the merged list is a "subterfuge" to
evade the ADEA, absent any evidence that defendants acted in bad faith or with a
discriminatory motive in arriving at and implementing the list. 95
The EEOC may deny a seniority system exception under the ADEA if it results in the
discharge or less favored treatment of workers protected by the ADEA. 96
Footnotes
Footnote 93. 29 USCS 623(f)(2)(A), discussed at 711.
Footnote 94. 714.
Footnote 95. Cook v Pan American World Airways, Inc. (1985, CA2) 771 F2d 635, 38
BNA FEP Cas 635, 38 BNA FEP Cas 1344, 38 CCH EPD 35536, 103 CCH LC
11638, cert den 474 US 1109, 88 L Ed 2d 895, 39 BNA FEP Cas 1568, 39 CCH EPD
35814.
716 Communication requirements for bona fide seniority systems

View Entire Section
In the EEOC's view, a seniority system is not "bona fide" under the ADEA unless the
employer communicates its essential terms and conditions to affected employees. 97
While the agency has determined that a seniority system may be bona fide under Title
VII without being in writing, 98 a court has found that a time-in-grade eligibility
requirement for promotion which had an adverse impact on black employees was not a
"bona fide" seniority system when the defendants did not identify any written seniority
policy, procedure or system that incorporated that requirement. 99
Footnotes
Footnote 98. EEOC Compliance nual 616.6.
Footnote 99. Police Officers for Equal Rights v Columbus (1985, SD Ohio) 644 F Supp
393.
(2). Factors Potentially Indicative of Discriminatory Intent [717-720]
717 Creation of system rooted in unlawful discrimination

View Entire Section
In evaluating the application of Title VII's bona fide seniority system exception, a
seniority system that has its genesis in unlawful discrimination will be viewed
suspiciously by the courts. This is because, by definition, a "bona fide" seniority system
is one that is free of intentional discrimination. 1
A seniority system has its genesis in unlawful discrimination only if the intent to
discriminate was involved in the very adoption of the system, that is, the purpose of the
seniority system was to discriminate unlawfully. 2
The courts are in dispute as to the extent to which the existence of discrimination at the
time the seniority system was adopted may require a finding that the system has its
"genesis" in discrimination. For example, the Fourth 3 and Sixth Circuits 4 hold that the
mere fact that the seniority system was adopted at a time when segregation in the
workplace was prevalent does not mean that the policy has its "genesis" in unlawful
discrimination, unless the system was adopted with a discriminatory purpose in mind.
However, the Tenth Circuit, adopting what it terms a "narrower approach" to applying
the exception, holds that a seniority system has its genesis in racial discrimination if it is
created when discrimination or segregation is the employer's "standard operating
procedure." The court should examine the conditions out of which the system arose to
determine if they include racially discriminatory practices by the employer. If so, the
system has its genesis in discrimination. 5
Observation: The Tenth Circuit's dispute with the Fourth and Sixth Circuit appears
to be less about the correct standard for determining when a seniority system has its
genesis in unlawful discrimination, than about the scope of the evidence the respective
courts will permit to show that the system is "bona fide," with the Tenth Circuit being
the most liberal in this respect.
Any merger of separate seniority units must be implemented in a nondiscriminatory
manner, or the new system may not be "bona fide" because it has its genesis in unlawful
discrimination. For example, black brakemen of one railroad company who had not been
granted the same seniority rights as white brakemen of another railroad company in a
merger of the two railroad systems, were found to be victims of racial discrimination
under Title VII. 6
Intentional discrimination in the genesis of a seniority system has been established when
seniority lists were segregated by sex, 7 and when black workers protesting the system
were told that they should "know their place." 8
However, a seniority system did not have its genesis in unlawful discrimination where an
employer's preference for internal applicants for job openings applied to all employees
regardless of race or sex. 9
Footnotes
Footnote 1. Quarles v Philip Morris, Inc. (1968, ED Va) 279 F Supp 505, 1 BNA FEP
Cas 260, 67 BNA LRRM 20998. 1 CCH EPD 9843, 57 CCH LC 9101.
Footnote 3. Gantlin v West Virginia Pulp & Paper Co. (1984, CA4) 734 F2d 980.
Footnote 4. Taylor v Mueller Co. (1981, CA6) 660 F2d 1116, 26 BNA FEP Cas 1695, 27
CCH EPD 32161.
Cas 394, 50 CCH EPD 39104.
Footnote 6. Williams v Norfolk & W. R. Co. (1975, CA4) 530 F2d 539, 11 BNA FEP
Cas 836, 11 CCH EPD 10710.
Footnote 7. Chrapliwy v Uniroyal, Inc. (1977, ND Ind) 15 BNA FEP Cas 822, 15 CCH
EPD 7933.
Footnote 8. Myers v Gilman Paper Co. (1981, SD Ga) 25 BNA FEP Cas 468, 25 CCH
EPD 31692.
Footnote 9. Allen v Prince George's County (1984, CA4) 737 F2d 1299, 34 CCH EPD
34506.
718 System negotiated or maintained with an illegal purpose

View Entire Section
In evaluating the application of Title VII's bona fide seniority system exception,
intentional discrimination in the system's operation may be more readily inferred if there
is evidence that the system was negotiated and has been maintained with an illegal
purpose. By definition, the issue of whether there has been purposeful discrimination in
connection with the establishment or continuation of a seniority system is integral to a
determination that the system is or is not "bona fide." 10
Likewise, in the EEOC's
view, a seniority system is not bona fide under the ADEA unless it is uniformly applied
to all affected employees regardless of age. 11
Evidence of the history of the collective bargaining negotiations and agreements for
many years prior to the situation in issue may be evaluated in determining whether
discriminatory intent exists. However, when one union succeeds another, it may not be
automatically assumed that any discriminatory motivation continues solely on the basis
of the fact that the seniority system remains unchanged by the successor union and
employer. 12
Employers were not found to have seniority systems that were negotiated or maintained
with an illegal purpose when:
there was continuous minority participation on bargaining committees; 13
retention preferences were given to senior workers in a job classification for a legitimate
purpose, despite any adverse effect on recently hired minorities; 14
the employer had legitimate business reasons for imposing rules that locked out
minority workers from higher-level positions, but maintained affirmative action and
training programs to try to increase minority mobility within the company. 15
However, evidence that the employer or union demonstrably manipulated or deviated
from a seniority system may be a strong indication that the seniority system was operated
or maintained with the intent to discriminate. 16 For example, when black employees
with equal seniority had to wait much longer than whites for promotional opportunities
that were supposedly controlled by seniority, 17 and where a union had a policy against
accepting blacks, and retained a veto power over any proposed transfers between
bargaining units, 18 the courts have found that these respective seniority systems,
although racially neutral in content, were applied in a discriminatory fashion and were
not entitled to the Title VII exception as "bona fide" seniority systems.
Footnotes
Footnote 13. Harris v Anaconda Aluminum Co. (1979, ND Ga) 479 F Supp 11, 23 BNA
Footnote 14. Alexander v Aero Lodge No. 735, etc. (1977, CA6) 565 F2d 1364, 15 BNA
Footnote 15. Bernard v Gulf Oil Corp. (1989, CA5) 890 F2d 735, 51 BNA FEP Cas
1126, 52 CCH EPD 39531, 15 FR Serv 3d 556, cert den 111 L Ed 2d 748, 58 USLW
Cas 394, 50 CCH EPD 39104.
Footnote 17. Scarlett v Seaboard C. L. R. Co. (1977, SD Ga) 27 BNA FEP Cas 631, affd
in part and revd on other grounds (CA5) 676 F2d 1043, 29 BNA FEP Cas 433, 29 CCH
EPD 32717.
Footnote 18. Wattleton v Ladish Co. (1982, CA7) 686 F2d 586, 29 BNA FEP Cas 1389,
FEP Cas 1856, 31 CCH EPD 33362.
719 Policies regulating transfer between seniority units

View Entire Section
A seniority system that discourages only minorities, rather than all employees, from
transferring between separate seniority units, may not be free of intentional
discrimination even if it is facially neutral and applicable to all individuals. Therefore,
such a system may not be entitled to Title VII's seniority system exception. 19
In evaluating the question of whether all employees are equally discouraged from
transferring between seniority units, a system is more likely to to be considered "bona
fide" if there are no seniority units or job classifications that are made up exclusively of
members of minority groups. 20
Footnotes
Footnote 19. Sears v Atchison, T. & S. R. Co. (1981, CA10) 645 F2d 1365, 25 BNA FEP
The legality of an employer's voluntary merger of separate seniority units is discussed at
723.
Footnote 20. Johnson v Burroughs Corp. (1980, SD Fla) 24 BNA FEP Cas 963.
720 Policies underlying division of seniority units

View Entire Section
An employer's division of seniority units is more likely to be found free of discriminatory
intent, and, therefore, bona fide under Title VII's seniority system exception, if the
division is rational, in accord with industry practice, and consistent with NLRB
precedent. 21
For example, seniority systems were found free of discriminatory intent
where the seniority unit divisions created were:
based on an extensive job classification study; 22
between skilled and unskilled occupational categories; 23
in conformity with NLRB unit determinations. 24
However, the creation of separate seniority units was found to be motivated by
discriminatory intent where:
craft jobs including the same functions were irrationally separated, resulting in racial
segregation; 25
jobs were arranged "helter skelter" rather than logically by type of work, while the
stated purpose was to fill vacancies with experienced and qualified workers; 26
the division only conformed with industry practice in a part of the country where
segregated work assignments were prevalent, not with the industry practice nationally. 27
An employer's division of seniority units that is irrational or nonconforming to industry
practice may also may be found to be a "subterfuge to evade the purposes" of the ADEA,
28 and, therefore, not entitled to that statute's bona fide seniority system exception. For
example, the EEOC may deem a seniority system a "subterfuge" to evade the ADEA if
the system gives lesser rights to workers with longer service. 29
However, just because a seniority system creates separate job classifications and layoff
rights based on tenure, that does not mean that the seniority units are the product of age
discrimination. Where such divisions were the result of collective bargaining
negotiations and were motivated by economics and skill rather than age, the system was
not a "subterfuge" to evade the discriminatory prohibitions. 30
Footnotes
Footnote 22. Johnson v Burroughs Corp. (1980, SD Fla) 24 BNA FEP Cas 963.
Footnote 23. Cormier v P.P.G. Industries, Inc. (1981, WD La) 519 F Supp 211, 26 BNA
31 CCH EPD 33505.
Footnote 24. Wright v Olin Corp. (1982, CA4) 697 F2d 1172, 30 BNA FEP Cas 889, 30
CCH EPD 33257.
Footnote 25. Sears v Atchison, T. & S. R. Co. (1981, CA10) 645 F2d 1365, 25 BNA FEP
Footnote 26. Myers v Gilman Paper Co. (1981, SD Ga) 25 BNA FEP Cas 468,25 CCH
EPD 31692.
Footnote 27. Miller v Continental Can Co. (1981, SD Ga) 544 F Supp 210, 26 BNA FEP
Cas 151, 25 CCH EPD 31543.
Footnote 28. 715.
Footnote 30. Morelock v NCR Corp. (1978, CA6) 586 F2d 1096, 18 BNA FEP Cas 225,
e. Remedies for Unlawful Seniority Practices [721- 724]
721 Limiting liability for unlawful collectively bargained seniority provisions

View Entire Section
In order to limit potential liability when a seniority system provision is challenged as
unlawful under Title VII, an employer may engage in collective bargaining with a union
to alter the system, 31 or may unilaterally conciliate a Title VII claim affecting
seniority, if the actions do not violate the terms of the collective bargaining agreement.
32
Footnotes
Footnote 32. United States v Miami (1980, CA5) 614 F2d 1322, 22 BNA FEP Cas 846,
22 CCH EPD 30822.
A union's liability for unlawful seniority systems, and other union practices, are discussed
at 1113 et seq.
Limiting an employer's liability by merging seniority rosters is discussed at 723.
722 Remedies affecting the seniority of non-victim employees

View Entire Section
A court cannot deny an employee the benefits of his seniority under a collective
bargaining agreement in order to provide a remedy to alleged victims of a Title VII
violation, unless it either finds that the seniority system was adopted with discriminatory
intent, or determines that a remedy effecting a third party's seniority rights is necessary to
make whole a proven victim of discrimination. 33
Caution: Because of Stotts, certain remedies 34 may be appropriate only when the
seniority system itself has been found to be tainted by intentional discrimination. 35
Footnotes
Footnote 35. As to intentional discrimination in the context of seniority systems, see
714-716.
723 Merger of seniority rosters

View Entire Section

Subject to the rights of non-victim employees under collective bargaining agreements, 36
merger of seniority rosters into a single, combined roster is an appropriate remedy under
Title VII where a discriminatory seniority system is based on the maintenance of
segregated seniority lists and employees have demonstrated substantially similar skills in
their present jobs as are required for the positions to which they aspire. 37
The merger of the seniority rosters of two railroad yards into a single terminal roster was
appropriate under Title VII to remedy the disparity and discrimination in employment
opportunities existing between the two yards by reason of their segregation by race,
where a single terminal seniority roster would necessarily provide for the preservation of
the rights of all incumbent employees at both yards and would permit no displacement of
incumbent employees. The combined seniority roster would be limited to bidding for
future vacancies and would remain subject to the overriding consideration of job
competency. 38
Merger of seniority rosters has been found to be an inappropriate remedy for a Title VII
violation where the two departments to be merged were located two miles apart, different
work was done at each, and it would be wasteful to use a merged seniority system to fill
daily vacancies by shuffling employees between plants. 39
Footnotes
Footnote 36. 722.
789, 5 CCH EPD 8521, cert den 414 US 854, 38 L Ed 2d 103, 94 S Ct 153, 6 BNA
Footnote 38. Rock v Norfolk & W. R. Co. (1973, CA4) 473 F2d 1344, 5 BNA FEP Cas
724 Change of priority status

View Entire Section
Subject to the rights of non-victim employees under collective bargaining agreements, 40
discrimination in the constitution of work pools from which employees in the industry are
called to work may be remedied by preferential advancement for minorities from lower
priority to higher priority pools, 41 or by ordering that members of protected classes be

allowed to qualify for a pool initially. 42
Footnotes
Footnote 40. 722.
Footnote 41. Patterson v Newspaper & Mail Deliverers' Union (1975, CA2) 514 F2d 767,
Footnote 42. Gamble v Birmingham S. R. Co. (1975, CA5) 514 F2d 678, 10 BNA FEP
Cas 1148, 9 CCH EPD 10223.
B. Compensation Packages [725-868]
Research References
5 USCS 2301; 29 USCS 206, 623, 630, 630,et seq., 1012; 38 USCS 4211 et
seq.; 42 USCS 1981, 2000det seq., 2000e, 2000e-2, 12112, 12201
P.L. 102-166
28 CFR Parts 41, 42; 29 CFR Parts 860, 1604, 1613, 1620, 1625, 1630; 34 CFR Part
106; 41 CFR Parts 60-20, 60-250
ALR Index, Civil Rights and Discrimination; Civil Service; Equal Pay Act; Labor and
Employment
Employment Coordinator EP-10,601 et seq., PM-14,001 et seq., EP-20,281,
EP-20,415 et seq., EP-20,640 et seq., EP-21,657 et seq., EP-21,760, 80,000 et
seq.
1. Wages and Salaries [725-800]
725 Generally
View Entire Section
Go to Supplement
Employers are prohibited from paying discriminatory wages or salaries by a variety of
federal and state 43 job discrimination laws. Many federal laws either expressly prohibit
or have been interpreted by courts or agencies to prohibit wage and salary discrimination.
Private and public employers are prohibited from committing "compensation"
discrimination based on race, color, religion, sex, and national origin, under Title VII, 44
based on age under the Age Discrimination in Employment Act, 45 and based on
disability under the Americans with Disabilities Act (ADA), 46 as of its effective date,
which varies with the size of the employer. 47 Under the ADA, an employer cannot
reduce pay or compensation to an employee with a disability because it has to eliminate
marginal job functions or provide a reasonable accommodation, such as specialized or
modified equipment. 48 The Equal Pay Act forbids sex discrimination in pay by public
and private employers, under the equal work standard. 49
Government contractors cannot establish "rates of pay" based on race, color, religion,
sex, and national origin, under Executive Order 11246, 50 or discriminate against
qualified disabled veterans or veterans of the Vietnam era in "rates of pay or other forms
of compensation" under the Vietnam Era Veterans Readjustment and Assistance Act. 51
Employers operating federally assisted programs are also forbidden from committing
wage and salary discrimination. Title VI forbids race, color, and national origin
discrimination in "rates of pay and other forms of compensation," 52 Title IX forbids
sex distinctions in "rates of pay or other compensation," 53 and the Rehabilitation Act
forbids handicap discrimination in "rates of pay . . . and changes in compensation." 54
Under civil service law, federal employees must be given equal pay for work of equal
value 55 without regard to their political affiliation, race, color, religion, sex, national
origin, marital status, age, or handicap. 56 Also, while the Rehabilitation Act of 1973
does not expressly address wage and salary discrimination in federal employment, a court
has found that a handicapped federal worker cannot be paid less than a non-handicapped
employee who is performing the same work and being evaluated under the same
standards. 57 Furthermore, the EEOC takes the position that handicapped federal
workers are protected from compensation discrimination under the Rehabilitation Act to
the same extent as other discrimination is forbidden by Title VII. 58
contracts, guaranteed under 42 USCS 1981. 59 as amended by the Civil Rights Act of
1991, 60 includes the making, performance, modification, and termination of contract, as
well as the enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship. 61 This list is intended to be illustrative rather than exhaustive. 62 and is
intended to apply in the context of employment. 63
Observation: Terms and conditions of employment may reasonably be construed to

include wages and salaries.
Caution: Before 1981 was amended, the Supreme Court held that its application
was limited in the employment context to hiring 64 and promotion 65 decisions that
involved the formation of new contracts, and did not reach post-formation conduct. 66
Patterson was interpreted to bar recovery under 1981 for discriminatory wage
practices. 67 The Civil Rights Act of 1991's amendment of 1981 supersedes
Paterson. 68
Public employers have also been prohibited from committing sex discrimination in wages
or salaries under 42 USCS 1983. 69
The Government Employee Rights Act of 1991 reaffirms the Senate's commitment to
Rule XLII of the Standing Rules of the Senate, prohibiting discriminatory compensation
practices based on race, color, religion, sex, national origin, age, or physical handicap. 70
Furthermore, the Civil Rights Act of 1991 applies the rights and protections provided
under Title VII (footnote 1) to employment by the House of Representatives 71 and the
Caution: Besides those federal laws discussed above, other federal statutes may
prohibit discrimination in wages and salaries as part of a broader prohibition against
discrimination in all terms, conditions, or privileges of employment. 73
Practice Aids: 26 Am Jur Proof of Facts 3d 269, Proof of Violation of Equal Pay Act.
Case authorities:
Plain meaning of 29 USCS 206(d)(1), which is written in present tense, is that statute
applies to cases in which employer pays employees of one gender less than contemporary
employees of opposite sex performing same job; thus, statute applies where plaintiff is
paid less than members of opposite sex employed at same time as plaintiff, and also
where plaintiff is paid less than her predecessors, but statute does not apply where
plaintiff was paid less than those employees who succeeded her. Bielawski v AMI, Inc.
(1994, ND Ohio) 870 F Supp 771, 66 BNA FEP Cas 1160, 2 BNA WH Cas 2d 920, 129
CCH LC P 33207.
Footnotes
Footnote 43.
State Aspects As to state statutes prohibitings discrimination in the payment of wages
or salaries, see Employment Coordinator 20,281 et seq. A full discussion of all
wage and salary discrimination prohibitions in all state job discrimination laws,
including laws of limited applicability to particular private employers, and laws which
only regulate public employers, as well as state constitutions, attorney general opinions
and executive orders appears in Employment Discrimination Coordinator t80,000 et
seq.
Annotation: Wage differentials as violative of those provisions of Title VII of the
Civil Rights Act of 1964, as amended (42 USCS 2000e et seq.), which prohibit sex
discrimination in employment, 62 ALR Fed 33.
Americans with Disabilities Act-Explanation of Key Legal Requirements, Equal

Employment Opportunity Commission, 1/28/92.
As to the equal work standard, see 728.
Forms: Allegations in complaintEqual Pay ActCollective action by employees for
discrimination by employer in payment of wages on basis of sex [29 USCS 206(d),
216(b); FRCP 8(a)]. 12 Federal Procedural Forms, L Ed, Job Discrimination
45:242.
Footnote 50. 42 USCS 2000e Note 202(1).
Footnote 51. 41 CFR 60-250.6(a).
Footnote 52. 28 CFR 42.104(c)(1).
Footnote 54. 28 CFR 41.52(c)(3).
Footnote 57. Davis v U.S. Postal Service (1987, MD Pa) 675 F Supp 225, 44 BNA FEP
Cas 1299, 46 CCH EPD 38020.
Footnote 58. 29 CFR 1613.802(a).
Footnote 60. P.L. 102-166 101(2).
Footnote 67. Summerville v GTE South, Inc. (1989, MD NC) 55 BNA FEP Cas 303.
Footnote 68. S Rept No. 101-315, 6/8/90, pp.6, 58.
Footnote 69. Stathos v Bowden (1981, DC Mass) 514 F Supp 1288, 30 BNA FEP Cas
1852, 26 CCH EPD 31957, affd, amd on other grounds (CA1) 728 F2d 15, 34 BNA
FEP Cas 142, 33 CCH EPD 34165; Burkey v Marshall County Bd. of Education (1981,
ND W Va) 513 F Supp 1084, 25 BNA FEP Cas 1229, 30 BNA FEP Cas 1855, 26 CCH
EPD 31950.
Footnote 70. P.L. 102- 166 319(a).
Footnote 71. P.L. 102-166 117(a).
Footnote 72. P.L. 102-166 117(b).
726 How Title VII differs from the Equal Pay Act
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Practice guide: While most claims involving sex discrimination in pay may be
brought under both the Equal Pay Act (EPA) and Title VII, there are some substantive,
procedural, and remedial differences in the statutes that should be considered in
determining whether to sue for sex discrimination in pay under one or both of these
acts, and in formulating a successful defense under each statute.
The most crucial differences between Title VII and the EPA are the fact that Title VII
forbids additional types of discrimination, 74 and forbids types of intentional and other
sexual discrimination in pay that are not banned by the EPA. 75 Therefore, if a sex
discrimination in pay claim is brought against an employer covered by both statutes, a
violation of the EPA will automatically result in a violation of Title VII, but a violation
of Title VII does not automatically constitute a violation of the EPA. 76
Other major differences which must be considered include the following:
the different coverage of private employers under Title VII and the EPA, 77 so that an
employer may be subject to only one of the laws;
because the EPA is limited to sex discrimination claims while Title VII is not,
companion claims based on other types of discrimination may only be raised under Title
VII;
a successful claim under the EPA must satisfy the criteria of the equal work standard, 78
while Title VII claims may but do not have to satisfy those criteria, and, therefore, may
be based on intentional discrimination even when the work at issue is different and there
is no single comparison employee on which to base the required rate of pay; 79
the EPA has a longer time limitations period for bringing suit than does Title VII, 80
so that a delay in filing may only effect rights under the latter statute in some
circumstances;
private class actions under the EPA are not subject to the certification requirements of
the Federal Rules of Civil Procedure as are class actions under Title VII, 81 so that it
may be more difficult to raise class claims under the EPA and to bind individuals to the
judgment if they are not parties to the suit;
a private right to court action is terminated when the EEOC files suit over the same
matter under the EPA, but not under Title VII; 82
a required initial resort to administrative processing of a claim with the EEOC and state
agencies is a prerequisite to suit only under Title VII; 83
liquidated damages are only available under the EPA for willful violations, 84 which
double the amount of an employer's liability for purposeful discrimination;
decreasing an employee's pay is expressly forbidden as a remedy under the EPA, 85
and is not expressly prohibited under Title VII;
criminal sanctions are available only under the EPA; 86
the right to a jury trial is firmly established only under the EPA, 87 so that bringing a
claim under both laws may increase the complexity and expense of a bifurcated
proceeding before both a judge and jury. 88
726 ----How Title VII differs from the Equal Pay Act [SUPPLEMENT]
Case authorities:
Claim of unequal pay for equal work can arise under both Equal Pay Act and Title VII
(42 USCS 2000e et seq.). Pollis v New School for Social Research (1996, SD NY)
913 F Supp 771.
Claim of unequal pay for equal work can arise under both Equal Pay Act and Title VII
(42 USCS 2000e et seq.). Pollis v New School for Social Research (1996, SD NY)
913 F Supp 771.
Although there are some differences, wage discrimination claims under Title VII are
generally construed in harmony with claims under Equal Pay Act (29 USCS 206).
Galabraga v Marriott Emples. Fed. Credit Union (1996, DC Md) 70 BNA FEP Cas 1605.
Finding by court that defendant employer did not willfully violate Equal Pay Act (29
USCS 206) is not necessarily inconsistent, for purposes of Title VII, with concurrent
finding of intentional refusal to promote and intentionally treating plaintiff differently
from similarly situated males despite her qualifications. EEOC v Cherry-Burrell Corp.
(1994, CA8 Iowa) 35 F3d 356, 128 CCH LC 33138.
Footnotes
Footnote 74. 725.
Footnote 76. 29 CFR 1620.27(a).
Footnote 77. As to coverage of private employers generally, see 39 et seq.
Footnote 78. As to the equal work standard, see 728.
Footnote 79. As to equality of work standards, see 731.
Footnote 80. As to time limitations, generally, see 2177 et seq.
Footnote 81. As to class action requirements, see 2371 et seq.
Footnote 82. As to federal suits, generally, see 2096 et seq.
Footnote 83. As to administrative processing requirements, generally, see 2252 et
seq.
Footnote 84. As to liquidated damages, generally, see 3007 et seq.
Footnote 85. 765.
Footnote 86. As to criminal sanctions, generally, see 3155 et seq.
Footnote 87. As to the right to a jury trial, generally, see 2371 et seq.
Footnote 88. See, for example, 2714 et seq., which discusses the different burden of
proof requirements imposed respectively under the EPA and Title VII.
727 Effect of state law requirements

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The Fair Labor Standards Act (FLSA), of which the EPA is a part 89 requires an
employer not only to satisfy its minimum wage requirements, but also to conform with
any state minimum wage laws which establish higher minimum wages than are mandated
by federal law. 90 An employer complying with a state minimum wage law that
requires higher minimum wages than are provided under the FLSA to be paid to workers
of only one sex is obligated to pay the same wage to workers of the other sex who meet
the equal work standard 91 under the EPA. 92
Likewise, since all forms of state women's protective legislation are invalid if
inconsistent with Title VII's ban on sex discrimination, 93 an employer's compliance
with state laws providing minimum wages or premium overtime for only female
employees constitutes a violation of Title VII unless the employer provides the same pay
to male employees. 94
Also, compliance with the EPA does not excuse a violation of a state job discrimination
statute or other law establishing stricter requirements than does the EPA. 95
727 ----Effect of state law requirements [SUPPLEMENT]
Footnotes
Footnote 89. 20.
Footnote 92. 29 CFR 1620.29.
Footnote 94. 29 CFR 1604.2(b)(3)(ii).
Footnote 95. 29 CFR 1620.28.
b. Wage and Salary Discrimination Claims Under the Equal Work Standard
[728-757]
(1). In General [728-735]
728 Equal work standard requirements

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All claims of sex discrimination in pay under the Equal Pay Act (EPA) must meet a set of
established criteria known collectively as "the equal work standard." Specifically, the
EPA forbids an employer to pay a different wage 96 on the basis of sex to employees in
an establishment 97 for equal work 98 on jobs requiring equal skill, 99 effort, 1 and
responsibility, 2 which are performed under similar working conditions. 3
This same
standard applies to claims of sex discrimination in pay raised under Title IX of the
Education Amendments of 1972 for employers operating educational programs or
activities that receive federal financial assistance. 4
The equal work standard must be satisfied by male as well as female employees bringing
sex discrimination in pay claims under the EPA, 5 and an employer attempting to justify
a pay deviation from this standard must justify the higher, rather than the lower paid job,
as including more skill, effort and responsibility, or as being performed under less
desirable working conditions. 6
While the equal pay standard is also primarily used in evaluating sex discrimination in
pay claims under Title VII, a claimant need not adhere to that standard if proof if
intentional discrimination 7 is established. 8 However, if the equal pay standard is the
basis of a sex wage claim under both Title VII and the EPA, there is no reason for a court
to arrive at different findings on the merits under the respective statutes, based on the
same facts. 9
Caution: Title VII cases analyzed under the equal work standard are included in the
following discussion of that standard, even when based on a different ground of
discrimination such as race, since there is no legal basis to conclude that such claims
should be treated differently from sex discrimination claims when that standard is
utilized.
When a pay discrimination claim was brought under not only Title VII and the EPA, but
also the Age Discrimination in Employment Act (ADEA), the Ninth Circuit applied the
equal work standard under all three statutes, and found that the claimant had not
demonstrated that the comparison position required substantially equal work to hers. 10
728 ----Equal work standard requirements [SUPPLEMENT]
Case authorities:
Recovery under Equal Pay Act requires that work in question be substantially equal, but
not that it be identical. Kellett v Glaxo Enters. (1994, SD NY) 66 BNA FEP Cas 1071, 2
BNA WH Cas 2d 884.
To establish prima facie violation of Equal Pay Act, plaintiff must show that she was paid
at rate less than employer pays employees of opposite sex for equal jobs, performance of
which requires equal skill, effort and responsibility; jobs must be equal, not merely
comparable. Fugitt v Certainteed Corp. (1993, ED Pa) 61 BNA FEP Cas 1314.
Footnotes
Footnote 96. 729.
Footnote 97. 730.

Footnote 98. 731.
Footnote 99. 732.
Footnote 1. 733.
Footnote 2. 734.
As to the similar working conditions requirement, see 735.
Forms: Defense in answerPlaintiff not performing equal work [29 USCS 206(d)].
12 Federal Procedural Forms, L Ed, Job Discrimination 45:246.
Footnote 6. 29 CFR 1620.14(a); 29 CRF 1620.13(d).
Footnote 7. As to intentional discrimination, see 758 et seq.
Footnote 8. County of Washington v Gunther (1981) 452 US 161, 68 L Ed 2d 751, 101
Footnote 9. McKee v Bi-State Dev. Agency (1986, CA8) 801 F2d 1014, 42 BNA FEP
Cas 431, 41 CCH EPD 36541.
Footnote 10. Foster v Arcata Associates, Inc. (1985, CA9) 772 F2d 1453, 38 BNA FEP
Cas 1850, 27 BNA WH Cas 624, 38 CCH EPD 35559, 103 CCH LC 34710, cert den
475 US 1048, 89 L Ed 2d 576, 106 S Ct 1267, 40 BNA FEP Cas 272, 27 BNA WH Cas
984, 39 CCH EPD 35925.
729 What are "wages"

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Under the equal work standard 11 "wages" include all payments made to or on behalf of
an employee as remuneration for employment. All forms of compensation are included
regardless of the time of payment, whether payment is periodical or deferred until a later
date, and whether the payment is called wages, salary, profit sharing, expense account,
monthly minimum, bonus, uniform cleaning allowance, hotel accommodations, use of
company car, gasoline allowance, or by some other name. Thus, all fringe benefits such
as vacation and holiday pay, 12 as well as overtime pay required under other provision
of the Fair Labor Standards Act 13 fall under the definition of "wages."
However, since the equal work standard's concern with the equality of work 14 only
extends to an evaluation of the equality of "wages," the EPA is not violated if an
employer imposes a heavier work load on a female employee than it does on a male
employee, as long as the "wages" are equal. 15
Furthermore, not every payment of money to an employee by an employer falls within
the definition of "wages." For example, an employer's investment in the businesses of
several male employees did not constitute "wages" to which a female employee was
equally entitled. The equal work standard does not apply to lost business opportunities,
and the employer's investment was neither compensation for services rendered, nor for
the primary benefit of the employees. 16
While "wages" include any form of compensation for employment, comparisons under
the equal work standard must be made in the same medium of exchange. For example, an
employer cannot pay higher hourly rates to employees of one sex and attempt to equalize
the differential by occasionally paying employees of the other sex a bonus. 17
729 ----What are "wages" [SUPPLEMENT]
Footnotes
Footnote 11. 728.
Footnote 12. 29 CFR 1620.10.
Footnote 13. 29 CFR 1620.29.
Footnote 14. 731.
Footnote 15. Berry v Board of Supervisors of L.S.U. (1983, CA5) 715 F2d 971, 32 BNA
FEP Cas 1567, 26 BNA WH Cas 706, 32 CCH EPD 33828, 98 CCH LC 34446, affd
(CA5) 783 F2d 1270, 42 BNA FEP Cas 917, 27 BNA WH Cas 1143, 39 CCH EPD
CCH EPD 37446.
Footnote 16. Williams v D. Richey Management Corp. (1988, ND Ill) 1988 US Dist
LEXIS 12009.
Footnote 17. 29 CFR 1620.19.
730 Same establishment requirement
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Pay differentials among employees may not be unlawful under the equal work standard
18 if the employees in the jobs compared do not work in the same "establishment." An
"establishment" referred to under the equal work standard, in the EEOC's view, is
normally regarded as a distinct physical place of business, as opposed to an employer's
entire common enterprise. Therefore, each physically separate place of business
constitutes a separate "establishment." 19 However, the agency recognizes that there
may be circumstances under which portions of a common enterprise occupy a single
physical space but may be regarded as separate "establishments." This may occur when
units are physically segregated, engaged in functionally separate operations with separate
employees, and maintain separate records. 20
The question that usually arises with respect to an application of the equal work standard
is whether an employer's physically separate units may be regarded as a single
"establishment." The EEOC states that they may be treated as a single establishment
under unusual circumstances, such as when a central administrative unit hires all
employees, sets wages, assigns the location of employment, and where employees
frequently interchange work locations and have virtually identical duties performed under
similar working conditions. 21 Prior to the time the EEOC took this position, some
courts maintained an absolutist approach and refused to recognize different portions of an
employer's common enterprise as a single "establishment" if they occupied different
physical locations. 22 Other courts have taken a more expansive approach to the
question and have determined that the degree to which physically separate facilities
interact is more important than their geographic separation in determining whether they
constitute a single "establishment." 23 Thus, it would make no sense for a private
employer to rely on a geographical concept of an "establishment" if it had centralized
personnel supervision and a uniform nongeographic pay policy. 24
Under this more expansive view, two or more physically distinct portions of either a
private or public employer's enterprise may constitute a single "establishment," if the two
distinct locations have:
integrated activities;
centralized control of activities;
centralized personnel activities and policies;
centrally imposed pay practices applied on a system-wide, area- wide, or other
geographically-wide basis. 25 Under these standards, physically distinct regional of ces
were considered a single "establishment" where they were centrally supervised and
adhered to the same pay standards, 26 and separate offices of the corporation were not a
single "establishment" when they were hundreds of miles apart, independently managed,
had different customers and operational needs, and separate budgets. 27
730 ----Same establishment requirement [SUPPLEMENT]
Footnotes
As to similar working conditions, see 735.
Footnote 22. Gerlach v Michigan Bell Tel. Co. (1978, ED Mich) 448 F Supp 1168, 17
BNA FEP Cas 287, 17 CCH EPD 8474, 83 CCH LC 33657; Jacobson v
Pitman-Moore, Inc. (1983, DC Minn) 573 F Supp 565, 33 BNA FEP Cas 49, 33 CCH
EPD 34169, affd without op (CA8) 786 F2d 1172, 41 BNA FEP Cas 928, 41 CCH EPD
36503.
Footnote 23. Alexander v University of Michigan- Flint (1980, ED Mich) 509 F Supp
627, 26 BNA FEP Cas 448, 24 BNA WH Cas 1490, 29 CCH EPD 32895, 92 CCH LC
34060.
Footnote 24. Grumbine v U.S. (1984, DC Dist Col) 586 F Supp 1144, 34 BNA FEP Cas
847, 26 BNA WH Cas 1194.
Footnote 25. Forsberg v Pacific Northwest Bell Tel. Co. (1985, DC Or) 622 F Supp 1150,
38 CCH EPD 35684, 103 CCH LC 34746, affd (CA9) 840 F2d 1409, 45 CCH EPD
37758, amd on other grounds (CA9) 46 CCH EPD 37996; American Federation of
State, etc. v County of Nassau (1985, ED NY) 609 F Supp 695, 37 BNA FEP Cas 1424,
27 BNA WH Cas 263, 37 CCH EPD 35386, 104 CCH LC 34757.
Footnote 26. Brownlee v Gay & Taylor, Inc. (1985, DC Kan) 642 F Supp 347, 45 BNA
FEP Cas 334, 28 BNA WH Cas 514, 40 CCH EPD 36278, affd (CA10) 861 F2d 1222,
35138.
Footnote 27. Foster v Arcata Associates, Inc. (1985, CA9) 772 F2d 1453, 38 BNA FEP
475 US 1048, 89 L Ed 2d 576, 106 S Ct 1267, 40 BNA FEP Cas 272, 27 BNA WH Cas
984, 39 CCH EPD 35925.
731 What is "equality of work"

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The equality of work being compared under the equal work standard 28 pertains to a
comparison of the jobs held by employees of different sexes, not to the skills and
qualifications of individual employees holding those jobs. 29 Furthermore, the jobs
being compared do not have to be identical, but only "substantially equal," 30 and the
actual performance required by the jobs, not the job titles or classifications, controls the
evaluation of whether the jobs are substantially equal. 31 The mere fact that there are
overlapping tasks among the comparison jobs is insufficient to establish substantial
equality. 32 However, insubstantial or minor differences in the degree or amount of skill,
33 effort, 34 or responsibility 35 required for the performance of the respective jobs
will not render the work unequal under the equal work standard. 36
The jobs being compared under the equal work standard need not be simultaneously held
by workers of different sexes. Comparisons may be validly made when the same job is
held in immediate succession, 37 as when a woman is employed to do substantially
equal work to that formerly performed by a man. 38 In other words, the jobs being
compared for equality are compared on the basis of their respective duties, not on the
time when they were performed. 39
731 ----What is "equality of work" [SUPPLEMENT]
Footnotes
Footnote 28. As to the equal work standard, generally, see 728.
Footnote 29. Glenn v General Motors Corp. (1988, CA11) 841 F2d 1567, 46 BNA FEP
(US) 102 L Ed 2d 367, 109 S Ct 378, 48 BNA FEP Cas 232, 29 BNA WH Cas 752, 50
CCH EPD 39164, 110 CCH LC 35125.
Footnote 30. Corning Glass Works v Brennan (1974) 417 US 188, 41 L Ed 2d 1, 94 S
Ct 2223, 9 BNA FEP Cas 919, 7 CCH EPD 9374b, 74 CCH LC 33078.
Footnote 31. EEOC v Maricopa County Community College Dist. (1984, CA9) 736 F2d
510, 35 BNA FEP Cas 234, 26 BNA WH Cas 1398, 34 CCH EPD 34526, 101 CCH LC
34582.
Footnote 32. Koster v Chase Manhattan Bank, N.A. (1985, SD NY) 609 F Supp 1191, 41
BNA FEP Cas 1379.
Footnote 33. As to skill requirements, see 732.
Footnote 34. As to effort requirements, see 733.
Footnote 35. As to responsibility requirements, see 734.
Footnote 36. 29 CFR 1620.14(a).

Footnote 37. Hodgson v Behrens Drug Co. (1973, CA5) 475 F2d 1041, 9 BNA FEP Cas
816, 5 CCH EPD 8452, 70 CCH LC 32844, cert den 414 US 822, 38 L Ed 2d 55, 94
S Ct 121, 9 BNA FEP Cas 1408, 6 CCH EPD 8861, 72 CCH LC 32962.
Footnote 38. Pittman v Hattiesburg Municipal Separate School Dist. (1981, CA5) 644
F2d 1071, 25 BNA FEP Cas 1349, 26 CCH EPD 31836; Clymore v Far-Mar-Co., Inc.
(1983, CA8) 709 F2d 499, 42 BNA FEP Cas 439, 32 CCH EPD 33671, 97 CCH LC
34391.
Footnote 39. Lowery v WMC-TV (1987, WD Tenn) 658 F Supp 1240, 43 BNA FEP Cas
972, 43 CCH EPD 37278.
732 What is "equal skill"

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For purposes of applying the equal work standard 40 "skill" includes consideration of
such factors as experience, training, education, and ability, and must be measured in
terms of the performance requirements of the job. Neither the efficiency of an
employee's performance, nor his possession of a skill not required for the job, will be
considered in determining whether the jobs require equal skill. 41
Observation: Efficiency of performance, while having no bearing on evaluating

"equal skill," may still support an employer's defense that a pay differential is based on
a merit 42 or incentive 43 system.
Caution: An employer's imposition of education or training job requirements not

needed for the performance of a particular position may not only raise equal pay, but
also other discrimination problems in terms of selection practices. 44
Thus, two jobs may be similar insofar as requiring the same task to be performed, but
may necessitate different levels of skill. For example, where each job entailed the
identification of the cause of malfunctions on telephone lines, but one job required the
operation of a complicated test board, the diagnosis of a malfunction, and the
determination of a solution, and the other job relied on a computer to automatically
perform those tasks, the jobs did not require "equal skill." 45
732 ----What is "equal skill" [SUPPLEMENT]
Footnotes
Footnote 41. 29 CFR 1620.15(a).
Footnote 42. As to the merit defense, see 740.
Footnote 43. As to the incentive system defense, see 741.
Footnote 44. As to selection processes generally, see 316 et seq.
Footnote 45. Forsberg v Pacific Northwest Bell Tel. Co. (1988, CA9) 840 F2d 1409, 45
CCH EPD 37758, amd (CA9) 46 CCH EPD 37996.
733 What is "equal effort"

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For purposes of determining whether jobs require "equal effort" when applying the equal
work standard, 46 a difference in the kinds of efforts required to perform the job will not
make the jobs unequal. Thus, both physical and mental exertion of more than an
occasional or sporadic nature must be evaluated for this purpose. 47 While the
balancing of physical and mental exertions necessary to evaluate "equal effort" has not
often occurred, where a court was faced with job classifications exclusively segregated
by sex, it balanced an occasional extra physical effort with a corresponding extra mental
effort necessary to achieve high production quotas, in determining that certain factory
positions were substantially equal. 48
Comparison jobs will not be found unequal based on "effort" if a wage differential due to
the effort required by the jobs is not applied uniformly to men and women. For example,
if only some men performed jobs requiring heavy lifting, the payment of a higher wage
rate to all men, based on the extra efforts of only some men, would constitute a violation
of the equal work standard. 49
It has also been found that spending 35% of work time in out-of- town travel constituted
a greater "effort" justifying higher pay than a job which did not require such travel. 50
733 ----What is "equal effort" [SUPPLEMENT]
Footnotes

Footnote 47. 29 CFR 1620.16(b).
Footnote 48. Hodgson v Daisy Mfg. Co. (1970, WD Ark) 317 F Supp 538, 9 BNA FEP
Cas 565, 2 CCH EPD 10320, 63 CCH LC 32392, affd in part and revd in part on other
grounds (CA8) 445 F2d 823, 9 BNA FEP Cas 646, 3 CCH EPD 8289, 65 CCH LC
32528.
Footnote 49. 29 CFR 1620.16(b).
Footnote 50. Gorrell v Abbott Laboratories (1987, ND Ill) 1987 US Dist LEXIS 11732.
Situations in which travel was evaluated for purposes of dissimilar "working conditions"
rather than an "equal effort" factor under the equal work standard, are discussed at 735.
734 What is "equal responsibility"

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Evaluations of job content for purposes of the determining "equal responsibility" under
the equal work standard 51 are primarily concerned with the degree of accountability
required in the performance of the job, with emphasis on the importance of the job
obligation. 52 For example, the temporary assumption of supervisory responsibilities,
53 or the additional authorization for a particular group of sales clerks to approve a
customer's personal check 54 would render comparison jobs unequal and justify a pay
differential under the equal work standard. However, duties which are only occasionally
dissimilar and would not normally be recognized in wage administration as a significant
factor in establishing wage rates will not justify increased pay on the basis of "equal
responsibility." 55
The responsibility being evaluated does not have to be officially assigned by the
employer in order for it to be subject to an equal work standard analysis. For instance,
the fact that a female employee's responsibilities were only equal to those of the
comparison male employee because she performed work above and beyond her job
description did not lessen the employer's obligation to pay both jobs equally, as long as
the added responsibilities were performed with the knowledge and acquiescence of
supervisory officials. 56
The sole fact that one job has more assistants helping to perform it than does another will
not, by itself, require a determination that it involves more responsibility. 57
Furthermore, where a common core of tasks are performed, the mere fact that one job is
responsible for the work of a larger total number of individuals will not, alone, make the
jobs unequal under the equal work standard. 58 However, the responsibility for a heavier
workload on one shift as opposed to another justifies higher pay for the more burdened
supervisor. 59
An employer's defense to unequal pay claims raised under the equal work standard,
which are based on unequal responsibility justifications, most frequently arise in the
context of the employer's assertion that "additional duties" 60
734 ----What is "equal responsibility" [SUPPLEMENT]
Footnotes
Footnote 52. 29 CFR 1620.17(a).
Footnote 53. 29 CFR 1620.17(b)(1).
Footnote 54. 29 CFR 1620.17(b)(2).
Footnote 55. 29 CFR 1620.17(b)(3).
Footnote 56. Katz v School Dist. (1977, CA8) 557 F2d 153, 18 BNA FEP Cas 726, 14
CCH EPD 7650.
Footnote 57. EEOC v Madison Community Unit School Dist. (1987, CA7) 818 F2d 577,
34908.
Footnote 58. Brewster v Barnes (1986, CA4) 788 F2d 985, 46 BNA FEP Cas 1758, 28
BNA WH Cas 1110, 40 CCH EPD 36098, 104 CCH LC 34759.
Footnote 59. Williams v Scientific Plastics, Inc. (1979, SD Miss) 20 BNA FEP Cas 1585,
20 CCH EPD 30232.
Footnote 60. 738.
735 "Similar working conditions" requirement

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In applying the equal work standard, 61 the jobs to be compared should involve "similar
working conditions." This evaluation depends on two factors; (1) the physical
surroundings of the work; (2) the frequency and severity of exposure to physical hazards.
Differences only in the time work is performed will not justify unequal pay based on
"working conditions." 62
The EEOC defines the "surroundings" element of this evaluation to include exposure to
toxic chemicals or fumes on an intense and frequent basis. The Commission concludes
that "hazards" involve physical dangers measured by both the frequency and severity of
the potential injury they may inflict. 63 The agency finds slight or inconsequential
differences in working conditions that are not usually considered by employers or in
collective bargaining for the purposes of establishing wage rates, will not justify pay
differences between otherwise substantially equal jobs. 64
Proof of a "hazard" necessary to justify a pay differential will depend on the nature of the
hazard asserted by the employer. For example, male custodians could be paid more for
working outside of a security perimeter in a dangerous urban environment, despite the
fact that none had been victim of a crime, 65 while another employer could not justify
pay differences based on an increased risk of industrial accident peculiar to particular
jobs, when it failed to submit evidence that that type of accident had ever occurred in the
history of its operations. 66
Observation: As the above cases demonstrate, an employer claiming a "hazard"

making working conditions dissimilar enough to justify unequal pay under the equal
work standard may be required to present scientific or occupational expert testimony
substantiating the hazard if it has not yet occurred, and if it is not a commonly shared
and easily recognizable hazard.
One court has expanded the "working conditions" evaluation to include aconsideration of
the amount of travel required by the comparison jobs, so that an employer was justified in
paying more for a job requiring 50% of the time to be expended in traveling, than for a
job in which no travel was required. 67
735 ----"Similar working conditions" requirement [SUPPLEMENT]
Footnotes
Footnote 63. 29 CFR 1620.18(a).
Footnote 64. 29 CFR 1620.18(b).
Footnote 65. Usery v Columbia University (1977, CA2) 568 F2d 953, 15 BNA FEP Cas
1333, 15 CCH EPD 7877, 82 CCH LC 33593.
grounds (CA8) 445 F2d 823, 9 BNA FEP Cas 646, 3 CCH EPD 8289, 65 CCH LC
32528.
Footnote 67. Chapman v Pacific Tel.&Tel. Co. (1978, DC Cal) 456 F Supp 65.
Observation: Other courts have evaluated travel time under the equal work standard
in the context of "effort" needed to perform a job. See 734 for further discussion.
(2). Available Defenses [736-757]
736 Statutory defenses under the Equal Pay Act and Title VII; generally
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Not only must all claims brought under the Equal Pay Act (EPA) conform to the equal
work standard, 68 but such claims are also subject to specified defenses provided in the
statute. The Act expressly states that employees of different sexes may be paid unequally
if their wages are based on a:
seniority system; 69
merit system; 70
system that measures earnings by quantity or quality of production, commonly referred
to as an incentive system; 71
factor other than sex. 72
Likewise, Title VII explicitly permits sex wage differentials authorized by the EPA. 73
Observation: Since Title VII prohibits more than sex discrimination 74 pay
discrimination claims based on race or other prohibited factors that are brought under
Title VII, but conform to the equal work standard, may correspondingly be defended
based on a "factor other than race." Thus, in the discussion which follows, Title VII
pay discrimination claims based on types of discrimination other than sex may be
included if they are brought under the equal work standard, since the EPA's statutory
defenses apply.
In order for an employer to successfully use the EPA's statutory defenses under either
that law or Title VII, it must apply those defenses equally to employees of both sexes, 75
and the statutory defenses are only valid to the extent that they account for the wage
disparity. 76
Observation: Besides the statutory defenses, an employer faced with a pay

discrimination claim raised under the equal work standard may also defend the claim
on the grounds that the plaintiff has not established the comparison jobs as being
substantially equal. 77 This defense often arises when an employer asserts that the
additional duties of one job 78 justify a higher rate of pay.
736 ----Statutory defenses under the Equal Pay Act and Title VII; generally
[SUPPLEMENT]
What constitutes "establishment" for purposes of sec. 6(d)(1) of Equal Pay Act (29 USCS
sec. 206(d)(1)), prohibiting wage discriminaion within establishment based on sex 124
ALR Fed 159.
Case authorities:
Release signed by employee when she retired which terminated her rights to bring
lawsuit against employer did not bar employee's later Equal Pay Act court action, which
alleged that employer had discriminated against her by denying her credit upon
retirement for time served while she had been pregnant, since release specifically
reserved employee's rights for benefit claims under pension plan. Carter v American Tel.
& Tel. Co. (1994, SD Ohio) 870 F Supp 1438.
Footnotes
Footnote 68. 728.
Footnote 69. 739.
Footnote 70. 740.
Footnote 71. 741.
As to factors other than sex, see 743-757.
Footnote 74. 726.
Footnote 75. 29 CFR 1620.13(c).
Footnote 76. EEOC v Whitin Machine Works, Inc. (1983, CA4) 699 F2d 688, 35 BNA
Footnote 77. 731.

Footnote 78. 738.
737 Employer's lack of discriminatory intent

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When a claim of pay discrimination is raised under the equal work standard, 79 the fact
that a violation occurs without any discriminatory intent on the employer's part, such as
when the pay disparity results from a clerical error or the misclassification of a position,
is not an exculpatory defense. 80 Likewise, an employer's "good faith" is not a complete
defense to an alleged EPA violation. 81
Caution: An employer's "good faith" may be a necessary part of demonstrating a

"factor other than sex" defense under the EPA.
Observation: An employer's "good faith" may affect the liquidated damages remedy
available under the EPA. 82
737 ----Employer's lack of discriminatory intent [SUPPLEMENT]
Footnotes
Footnote 80. Grimes v District of Columbia (1986, DC Dist Col) 630 F Supp 1065, 42
BNA FEP Cas 1480, 27 BNA WH Cas 1084, 42 CCH EPD 36889, 104 CCH LC
34803, vacated on other grounds 266 App DC 483, 836 F2d 647, 45 BNA FEP Cas 1137,
45 CCH EPD 37784, 108 CCH LC 35013.
Footnote 81. Laffey v Northwest Airlines, Inc. (1984, App DC) 238 App DC 400, 740
F2d 1071, 35 BNA FEP Cas 508, 27 BNA WH Cas, 34 CCH EPD 34540, 101 CCH LC
34585, cert den 472 US 1021, 87 L Ed 2d 622, 105 S Ct 3488, 37 BNA FEP Cas
1816, 37 CCH EPD 35293; Peters v Shreveport (1987, CA5) 818 F2d 1148, 43 BNA
FEP Cas 1822, 28 BNA WH Cas 169, 43 CCH EPD 37160, 107 CCH LC 34936 and
cert dismd 485 US 930, 99 L Ed 2d 264, 108 S Ct 1101, cert den (US) 102 L Ed 2d
367, 109 S Ct 378, 48 BNA FEP Cas 232, 29 BNA WH Cas 752, 50 CCH EPD 39164,
110 CCH LC 35125.
738 Additional duties for the higher paying job

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When an employer defends a pay discrimination claim raised under the equal work
standard 83 based on the assertion that the plaintiff has not established the substantial
equality 84 of the comparison jobs, it often asserts that the higher paying job is unequal
in content due to the fact that additional duties are required. The courts and the EEOC
have established several criteria that normally preclude the success of such a defense.
For instance, jobs will generally be considered equal, despite additional duties involved
in the higher paying positions, and will correspondingly be entitled to equal pay when:
the higher paid employees received the increased wages without actually performing the
additional duties; 85
the lower paid employees are also performing the alleged additional duties; 86
the alleged additional duties do not in fact exist; 87
the additional duties consume only a minimal or insignificant amount of time; 88
the extra duties are of only peripheral importance, 89 such as unskilled 90
labor; 91
or manual
the additional duties are of a type normally performed only by workers earning a lower
rate of pay; 92
employees outside of the comparison jobs perform the additional duties as their primary
responsibilities, but are paid less than employees in the higher paid comparison group; 93
the additional duties are exclusively linked to different equipment being used, such as
the use of different machines 94 or driving different vehicles. 95
Conversely, application of these factors will support an employer's defense based on
additional duties when the duties are complicated and of more economic importance to
the employer, 96 even when a small percentage of the higher paid workers do not
actually perform the additional duties. 97
738 ----Additional duties for the higher paying job [SUPPLEMENT]
Footnotes
Footnote 84. As to the substantial equality requirement, generally, see 731.
Footnote 85. 29 CFR 1620.20(a); Brennan v Prince William Hospital Corp. (1974,
CA4) 503 F2d 282, 9 BNA FEP Cas 979, 8 CCH EPD 9687, 75 CCH LC 33149, cert
10032.
Footnote 86. 29 CFR 1620.20(b).
Footnote 87. 29 CFR 1620.20(c); Brennan v Prince William Hospital Corp. (1974,
CA4) 503 F2d 282, 9 BNA FEP Cas 979, 8 CCH EPD 9687, 75 CCH LC 33149, cert
10032.
Footnote 88. 29 CFR 1620.20(d).
Third CircuitHodgson v Oil City Hospital, Inc. (1972, WD Pa) 363 F Supp 419, 9
BNA FEP Cas 802, 5 CCH EPD 8412, 70 CCH LC 32826.
Fourth CircuitGrove v Frostburg Nat. Bank (1982, DC Md) 549 F Supp 922, 31 BNA
Fifth CircuitHodgson v Behrens Drug Co. (1973, CA5) 475 F2d 1041, 9 BNA FEP Cas
Sixth CircuitWirtz v Rainbo Baking Co. (1967, ED Ky) 303 F Supp 1049, 9 BNA FEP
Cas 477, 1 CCH EPD 9749, 54 CCH LC 31884.
Eighth CircuitWirtz v Meade Mfg., Inc. (1968, DC Kan) 285 F Supp 812, 1 CCH EPD
9769.
DC CircuitGoodrich v International Brotherhood of Electrical Workers (1987) 259 App
DC 318, 815 F2d 1519, 43 BNA FEP Cas 727, 28 BNA WH Cas 19, 42 CCH EPD
36926, 106 CCH LC 34896.
Footnote 89. 29 CFR 1620.20(d).
Footnote 90. Brennan v Prince William Hospital Corp. (1974, CA4) 503 F2d 282, 9 BNA
FEP Cas 979, 8 CCH EPD 9687, 75 CCH LC 33149, cert den 420 US 972, 43 L Ed
Footnote 91. Brennan v South Davis Community Hospital (1976, CA10) 538 F2d 859, 13

Footnote 93. 29 CFR 1620.20(e).
Footnote 94. 29 CFR 1620.14(c).
Footnote 95. Lanegan-Grimm v Library Asso. of Portland (1983, DC Or) 560 F Supp
486, 31 BNA FEP Cas 865, 31 CCH EPD 33512, 98 CCH LC 34434.
Footnote 96. Brennan v Victoria Bank & Trust Co. (1974, CA5) 493 F2d 896, 9 BNA
FEPCas 932, 7 CCH EPD 9358, 74 CCH LC 33077.
Footnote 97. Marshall v Building Maintenance Corp. (1978, CA2) 587 F2d 567, 18 BNA
739 Wages set by a seniority system

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One of the statutory defenses available under the Equal Pay Act and Title VII, to pay
discrimination claims brought under the equal work standard, involves wage rates
established under a bona fide seniority system. Therefore, unless an employee can
demonstrate that the seniority system was either adopted or applied with a discriminatory
intent, 98 that is, that the system is not "bona fide," wages set by a seniority system
constitute a valid defense to claims brought under the equal work standard. If the
seniority system is not "bona fide," provisions of a collective bargaining agreement that
require unequal rates of pay in conflict with EPA's requirements are void and of no
effect. 99
In order to establish the seniority system defense to pay discrimination claims, all
seniority standards must be applied on a sex neutral basis, 1 and the defense is only
valid to the extent that it accounts for all of the disparity in pay. For example, when
seniority only accounted for 20% of the greater pay given to male employees than to their
female counterparts, an EPA violation was established entitling the female employees to
an award equal to 80% of the male employees' salary. 2 A pay schedule that did nothing
more than annually increase an employee's pay, based not on length of service or date of
hire, but on the position assigned to the worker in 1975, did not constitute a seniority
system defense to a sexual pay disparity claim under Title VII and the EPA. 3
739 ----Wages set by a seniority system [SUPPLEMENT]
Footnotes
Footnote 98. Hebert v Monsanto Co. (1982, CA5) 682 F2d 1111, 29 BNA FEP Cas 802,
29 CCH EPD 32976.
For a discussion of when a seniority system is "bona fide" and a discussion of how the
seniority system exception in job discrimination laws affects all terms and conditions of
employment, see 706 et seq.
Footnote 99. 29 CFR 1620.23.
Footnote 2. EEOC v Whitin Machine Works, Inc. (1983, CA4) 699 F2d 688, 35 BNA
Footnote 3. Mitchell v Jefferson County Bd. of Educ. (1991, CA11) 936 F2d 539, 56
740 Wages paid under a merit system

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One of the statutory defenses available to an employer faced with a pay discrimination
claim brought under the EPA or Title VII, in conformity with the equal work standard,
permits wages to be based on a merit system. To use this defense under either Title VII 4
or the EPA, 5 the system must be "bona fide." The system will not be bona fide if it is
based on an evaluator's "gut feeling," 6 or other subjective, ill-informed, informal, and
unsystematic judgments of an individual's worth or value. 7 Nor do an employee's
self-evaluations of merit qualify as "bona fide" merit systems on which pay may be
unequally based. 8
A "bona fide" system is one in which an organized and structured procedure
systematically evaluates employees at regular intervals 9 according to predetermined
criteria, written or unwritten. However, if the criteria is unwritten it must be made
known to employees. 10 Once employees are made aware of the criteria, their failure to
comply with the established evaluation process is fatal to their unequal pay claims. 11
Also, the system must be based on actual performance which can be evaluated.
Therefore, the defense cannot be used to justify sexual pay disparities existing at the time
employees are hired. 12 Performance under a bona fide merit pay system has been
measured by such criteria as ability and skill, speed, accuracy, experience, versatility,
dependability, and attitude. 13
740 ----Wages paid under a merit system [SUPPLEMENT]
Footnotes
Footnote 5. Herman v Roosevelt Federal Sav. & Loan Asso. (1977, ED Mo) 432 F Supp
843, 21 BNA FEP Cas 1199, affd (CA8) 569 F2d 1033, 21 BNA FEP Cas 1206, 15 CCH
EPD 8049, 83 CCH LC 33621.
Footnote 7. Brock v Georgia Southwestern College (1985, CA11) 765 F2d 1026, 43
34687.
Footnote 8. Ottaviani v State University of New York (1988, SD NY) 679 F Supp 288,
(US) 107 L Ed 2d 740, 110 S Ct 721, 51 BNA FEP Cas 1224, 52 CCH EPD 39540.
Footnote 9. Wirtz v First Victoria Nat. Bank (1970, SD Tex) 9 BNA FEP Cas 561, 2
CCH EPD 10297, 63 CCH LC 32378, affd (CA5) 446 F2d 47, 9 BNA FEP Cas 669, 3
CCH EPD 8302, 66 CCH LC 32545.
Footnote 10. EEOC v Aetna Ins. Co. (1980, CA4) 616 F2d 719, 22 BNA FEP Cas 607,
Footnote 11. Willner v University of Kansas (1988, CA10) 848 F2d 1023, 46 CCH EPD
38016, cert den (US) 102 L Ed 2d 972, 109 S Ct 840, 48 CCH EPD 38575.
Footnote 12. EEOC v Missouri, Dept. of Social Services, Div. of Corrections (1985, ED
Mo) 617 F Supp 1152, 46 BNA FEP Cas 849, 37 CCH EPD 35391, 105 CCH LC
34823.
Footnote 13. Coe v Cascade Wood Components, Inc. (1988, DC Or) 48 BNA FEP Cas
664, 29 BNA WH Cas 19.
Practice Aids: Guidance on formulating performance appraisal systems that not only
comply with job discrimination laws, but which also assist in implementing other
employer concerns. Employment Coordinator PM-14,001 et seq.
741 Wages paid on an incentive basis

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An employer faced with a pay discrimination claim raised under the equal work standard
may use the statutory defense under both Title VII and the EPA that the disparity results
from the implementation of a system that measures earnings by quantity or quality of
production, in other words, an incentive basis. To use this defense in a claim brought
under Title VII, there is an additional requirement that the differences in pay be
demonstrated not to be the result of intentional discrimination. 14 An incentive system
will not justify sexual disparities in hourly wage rates if it is only applied as a percentage
of those existing rates. 15
741 ----Wages paid on an incentive basis [SUPPLEMENT]
Footnotes
Footnote 15. Shultz v Saxonburg Ceramics, Inc. (1970, WD Pa) 314 F Supp 1139, 9
742 Freedom of religion

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Organizations with religious affiliations may claim that the First Amendment permits
them to establish pay rates in conformity with religious principles, despite the dictates of
federal law. In an instance in which the Equal Pay Act (EPA) was challenged on this
basis, the court found that since it was not part of the employer's faith to discriminate in
pay for a substantially equal work on the basis of sex, the free exercise clause of that
amendment was not violated. Furthermore, the EPA had a secular purpose that did not
foster excessive government entanglement nor advance or inhibit a particular religion.
Therefore, the establishment clause of that amendment was also not violated. 16
The EEOC takes the position that religious institutions covered by the EPA or Title VII
cannot pay women less than men for equal work, even if that policy is part of its religious
beliefs. However, the Commission recognizes that a "ministerial exception" may exist for
clergy or individuals functioning as clergy, in order to protect First Amendment religious
freedoms. 17 The "ministerial exception" for individuals functioning as clergy, under
the First Amendment's prohibition against excessive entanglement of government and
religion, did not apply to EPA violations against teachers and administrators of a
church-sponsored school. 18
Observation: Title VII's compensation discrimination prohibitions have also been

challenged on the basis of constitutional claims involving religious freedom. Such
challenges have arisen in the context of fringe benefit claims, 19 and such claims also
occasionally involve attempts to justify increased pay for "heads of households". 20
Caution: Constitutional religious freedom defenses are not limited to claims raised
under the equal work standard, 21 but may also be raised in defense of an intentional
or impact discrimination pay claim under Title VII and the ADEA, 22 and the same
constitutional principles will apply in each instance.
742 ----Freedom of religion [SUPPLEMENT]
Footnotes
Footnote 16. Russell v Belmont College (1982, MD Tenn) 554 F Supp 667, 30 BNA FEP
Footnote 18. EEOC v Tree of Life Christian Schools (1990, SD Ohio) 751 F Supp 700,
35417.
Footnote 20. 751.
Footnote 21. 728.
(b). Factor Other Than Sex Justifying Different Pay [743-757]
743 Jobs paid under a neutral evaluation and classification system

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The primary purpose behind providing the statutory defense under the EPA and Title VII
of "a factor other than sex" for pay discrimination claims based on the equal work
standard, is to allow an employer to use gender- neutral job evaluation and classification
systems. 23
Observation: The difference between a defense based on a neutral evaluation and

classification system and a defense under a merit system is that the former system
evaluates jobs, while the latter system evaluates employees' job performance.
Thus, an employer's classification system establishing minimum and maximum pay
ranges as well as minimum experience and education requirements for each job, provided
a legitimate defense for paying a female employee who "under filled" her job
classification a lower rate of pay than males who had already obtained the credentials
necessary to acquire higher classified jobs. 24
However, there are limitations imposed on this defense. The use of a gender-neutral
classification system, without more, will not enable an employer to meet its burden of
proving that a factor other than sex is responsible for a wage differential. A job
classification system may serve as a factor-other-than-sex defense to sex-based wage
discrimination claims only when the employer proves that the job classification system
resulting in differential pay is rooted in legitimate business-related differences in work
responsibilities and qualifications for the particular positions at issue. Without a
job-relatedness requirement, the factor-other-than-sex defense would provide a gaping
loophole in the EPA, through which many pretexts for discrimination would be
sanctioned. An employee may not lose an EPA claim after making out a prima facie case
of wage discrimination simply because an employer chooses to call one employee a
cleaner and another employee a custodian, when it could reasonably be found that the
cleaner performs equal work to that of custodians. 25 Other employers were unable to
successfully demonstrate the defense when the job evaluation and classification systems
were:
arbitrary in relation to the actual work being performed. 26
unequally applied in similar situations based on the sex of the employee. 27
relying on traditional job classification systems in an industry with long standing,
historical sex discrimination and segregation, and, therefore, perpetuated that
discrimination. 28
based on different levels of supervision that did not actually exist. 29
sexually segregated and the employer actively discouraged females from seeking
positions in the higher paid classification. 30 Furthermore, the mere fact that a job
classification is sexually integrated will not, by itself, establish a "factor other than sex"
defense when employees of different sexes are paid unequally for jobs that require equal
pay under the equal work standard. 31
743 ----Jobs paid under a neutral evaluation and classification system

[SUPPLEMENT]
Practice Aids: Crossing the line: The Second, Sixth, Ninth, and Eleventh Circuits'
misapplication of the Equal Pay Act's "any other factor other than sex" defense, 13
Hofstra Lab LJ 1:181 (1995).
26 Am Jur Proof of Facts 3d 269, Proof of Violation of Equal Pay Act.
Footnotes
Footnote 23. County of Washington v Gunther (1981) 452 US 161, 68 L Ed 2d 751,
Footnote 24. Strecker v Grand Forks County Social Service Bd. (1980, CA8) 640 F2d 96,
24 BNA FEP Cas 1019, 25 BNA FEP Cas 1761, 24 BNA WH Cas 1149, 24 CCH EPD
31426, 27 CCH EPD 32190, 90 CCH LC 33964, adopted, en banc (CA8) 34 BNA
FEP Cas 1008, 24 BNA WH Cas 1431.
Footnote 25. Aldrich v Randolph Cent. School Dist. (1992, CA2) 58 BNA FEP Cas 1373.
Footnote 26. Shultz v Hayes Industries, Inc. (1970, ND Ohio) 19 BNA WH Cas 447.
Footnote 27. Marshall v J. C. Penney Co. (1979, ND Ohio) 464 F Supp 1166, 22 BNA
Footnote 28. Thompson v Sawyer (1982) 219 App DC 393, 678 F2d 257, 28 BNA FEP
Footnote 29. Grayboff v Pendelton (1984, ND Ga) 36 BNA FEP Cas 350, 26 BNA WH
Cas 1609, 35 CCH EPD 34773, 102 CCH LC 34624.
34908.
Footnote 31. Peters v Shreveport (1987, CA5) 818 F2d 1148, 43 BNA FEP Cas 1822, 28
BNA WH Cas 169, 43 CCH EPD 37160, 107 CCH LC 34936, cert dismd 485 US
930, 99 L Ed 2d 264, 108 S Ct 1101.
744 Wages established by market rate

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A common "factor other than sex" statutory defense used by employers in responding to
pay discrimination claims raised under the equal work standard, is that pay differences
are attributable to the market rate at which particular jobs and services are valued
throughout the industry, or in a specific geographical location. Evidence of the current
market rate justifying pay disparities is often essential to a successful presentation of this
defense. For example, where an employer continued to pay a differential based on a
market rate evaluation occurring long before it took action to adjust its pay structure for
competitive purposes, its reliance on the out- of-date evaluation was inadequate to defend
an alleged violation of the EPA. 32
Similarly, market rate defenses have failed to establish "a factor otherthan sex" defense
under the EPA or Title VII when:
the employer did not articulate any systematic or rational application of market factors;
33
the market rate was based on a mere presumption or assumption that women would
work for a lesser wage than men doing substantially similar work; 34
the defense was no more than a "last ditch" effort to avoid liability under the EPA, and
was based on nothing more than the employer's superior bargaining position vis-a-vis a
particular woman or women as a group compared to male counterparts; 35
market rate evaluations were unequally applied based on sex insofar as the employer
met or exceeded market rates in establishing male salaries, but ignored them in paying
lower salaries to women performing equal work. 36
However, employers have successfully used a market rate defense when market factors
fully explained disparities between males and females doing substantially equal work,
such as when a male employee rejected a salary offer equivalent to the pay of a
comparable situated female worker, and the employer risked losing him to another
employer if additional compensation was not provided. 37 Likewise, when an employer
negotiated a male employee's salary based on the amount it would take to secure his
particular skills, which were needed for the business, the male employee's higher salary
than that of a female counterpart was justified under Title VII. 38 However, an
employer cannot use a market rate defense to justify racial disparities in pay under Title
VII if the defense is only based on the greater bargaining power of one race. 39
One of the most frequent market rate defenses used by employers in defending pay
discrimination claims under the equal work standard involves a policy of basing salary, in
whole or part, on an employee's previous pay. This specific application of the defense is
discussed at EP-20,221.
Other economic defenses used by employers in addressing pay discrimination claims
under the equal work standard are discussed elsewhere. 40
744 ----Wages established by market rate [SUPPLEMENT]
Footnotes
Ct2223, 9 BNA FEP Cas 919, 7 CCH EPD 9374b, 74 CCH LC 33078.
Footnote 33. Chang v University of Rhode Island (1985, DC RI) 606 F Supp 1161, 40
Footnote 34. Horner v Mary Institute (1980, CA8) 613 F2d 706, 21 BNA FEP Cas 1069,
24BNA WH Cas 436, 22 CCH EPD 30565, 88 CCH LC 33880.
Footnote 35. Hodgson v Brookhaven General Hospital (1970, CA5) 436 F2d 719, 9 BNA
FEP Cas 579, 3 CCH EPD 8065, 64 CCH LC 32431; Futran v Ring Radio Co. (1980,
ND Ga) 501 F Supp 734, 24 BNA FEP Cas 776, 24 BNA WH Cas 1107, 24 CCH EPD
31410.
Footnote 38. Walter v KFGO Radio (1981, DC ND) 518 F Supp 1309, 26 BNA FEP Cas
982, 28 CCH EPD 32497.
Footnote 39. Fisher v Dillard University (1980, ED La) 499 F Supp 525, 26 BNA FEP
Cas 184, 26 CCH EPD 32089.
Footnote 40. 746.
745 Salary based on employee's previous pay

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A common use of the market rate defense as part of a "factor other than sex" statutory
justification for dissimilar pay in jobs otherwise requiring equal pay under the equal work
standard, is the policy of basing wages or salary, in whole or part, on an employee's
previous wage or salary. The Eleventh Circuit has held that such a policy cannot, by
itself, justify a pay disparity prohibited by the EPA. 41 However, more limited usage
of this policy has provided a successful defense, especially when implemented to protect
an employee's pay. For instance, where an employer partially based the pay rate of
beginning supervisory employees on the rate of pay they previously earned in their
nonsupervisory positions in order to encourage highly paid nonsupervisory staff to
compete for the higher level positions without risking a cut in pay, the policy provided a
valid defense to an EPA claim. 42
Caution: Since pay discrimination may be prohibited by Title VII even if the claim
does not arise under the equal work standard, a potential violation of the statute may be
alleged under the adverse impact method of proof 43 when an employer bases a salary
on an employee's previous pay.
745 ----Salary based on employee's previous pay [SUPPLEMENT]
Footnotes
Footnote 41. Glenn v General Motors Corp. (1988, CA11) 841 F2d 1567, 46 BNA FEP
(US) 102 L Ed 2d 367, 109 S Ct 378, 48 BNA FEP Cas 232, 29 BNA WH Cas 752, 50
CCH EPD 39164, 110 CCH LC 35125.
Footnote 42. Groussman v Respiratory Home Care, Inc. (1986, CD Cal) 40 BNA FEP
Cas 122, 27 BNA WH Cas 853.
Footnote 43. As to the disparate impact theory of proof, generally, see 2703 et seq.
746 Employer's economic situation affects pay

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Employers have sometimes been able to successfully defend pay discrimination claims
brought under the equal work standard when an existing economic situation provides the
statutory "factor other than sex" rational for the resulting unequal pay for equal work. For
example, an employer's policy of automatically increasing the salaries of employees who
received offers from competitors presented a valid economic rational for the fact that a
female employee was receiving higher pay than her male counterpart. 44
Another court has held that an employer's imposition of a salary ceiling on new
employees in order to cut costs so that the lowest bid could be made on a government
contract, was a potential "factor other than sex" defense for a wage disparity raised under
the EPA. 45
746 ----Employer's economic situation affects pay [SUPPLEMENT]
Footnotes
Footnote 44. Winkes v Brown University (1984, CA1) 747 F2d 792, 36 BNA FEP Cas
120, 26 BNA WH Cas 1533, 35 CCH EPD 34726, 102 CCH LC 34608.
Footnote 45. Price v Lockheed Space Operations Co. (1988, CA11) 856 F2d 1503, 47
35130.
747 Increased pay for employee potential

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Employers have sometimes attempted to justify different pay for jobs falling within the
equal work standard by asserting that the pay of the higher paid employee is based on
that employee's potential enhanced economic value, and, as such, constitutes the statutory
defense of a "factor other than sex" validating the disparity in pay. In order to
successfully present this defense, the employer must specifically identify the superior
qualities justifying the pay disparity. 46 Mere speculation that the employee may
contribute to a greater degree at some unspecified future date is insufficient to justify a
current pay disparity. 47
Paying for the increased potential value of an employee has been found a legitimate
defense to pay discrimination claims when linked to a bona fide training program, 48 or
to a foreseeable business expansion which will result in the employee performing more
valuable work in the near future, 49 or when the increased value is clearly based on the
employee's past experience doing the same job. 50
Conversely, increased experience in the same job or credentials for work of more value
will not justify an increased amount of pay based on an employee's potential, if the
employer cannot identify how the experience will enable the employee to perform more
competently or efficiently in the future, 51 or if the credentials possessed by the
employee are unnecessary to the performance of the anticipated future position. 52
Furthermore, the increased pay must be commensurate with the anticipated economic
benefits to the employer in order for the defense to be successful. For example, the
capability of higher paid employees to perform work worth two cents per hour more to
the employer did not justify paying them 21 cents per hour more than employees of a
different sex who lacked such capabilities. 53
747 ----Increased pay for employee potential [SUPPLEMENT]
Footnotes
Footnote 46. Thompson v John L. Williams Co. (1988, MD Ga) 686 F Supp 315, 46
BNA FEP Cas 1378, 3 BNA IER Cas 623, 28 BNA WH Cas 1636, 51 CCH EPD
39259, 109 CCH LC 35103.
Footnote 47. Marshall v Security Bank & Trust Co. (1978, CA10) 572 F2d 276, 17 BNA
Footnote 48. As to increased pay for trainees, see 749.
Footnote 50. Bullock v Pizza Hut, Inc. (1977, MD La) 429 F Supp 424, 26 BNA FEP Cas
313, 14 CCH EPD 7608, 81 CCH LC 33530.
Footnote 51. Thompson v John L. Williams Co. (1988, MD Ga) 686 F Supp 315, 46
BNA FEPCas 1378, 3 BNA IER Cas 623, 28 BNA WH Cas 1636, 51 CCH EPD 39259,
109 CCH LC 35103.
Footnote 52. 29 CFR 1620.15(a).
Footnote 53. Shultz v Wheaton Glass Co. (1970, CA3) 421 F2d 259, 9 BNA FEP Cas
502, 9 BNA FEP Cas 508, 2 CCH EPD 10077, 61 CCH LC 32284, cert den 398 US
905, 26 L Ed 2d 64, 90 S Ct 1696, 9 BNA FEP Cas 1408, 2 CCH EPD 10151, 62 CCH
LC 32333.
748 Increased cost of employing one sex

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If jobs performed by men and women satisfy the equal work standard, 54 an employer
cannot use the "factor other than sex" defense available under Title VII or the EPA 55
for paying one sex less because its average cost of employing workers of one sex, as a
group, is greater than employing workers of the opposite sex, as a group. 56
748 ----Increased cost of employing one sex [SUPPLEMENT]
Footnotes
Footnote 54. 728.
Footnote 55. 736.

Footnote 56. 29 CFR 1620.22.
749 Increased pay for trainees

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A specific aspect of an employer's "factor other than sex" defense 57 to a pay
discrimination claim brought under the equal work standard, based on increased pay for
employee potential, 58 often involves paying more to a trainee who may be temporarily
engaged in lesser paid activities, but who will assume the responsibilities and duties of a
higher paid position in the future. This defense will be successful if the trainee's lesser
valued tasks are only part of a "bona fide" training program which familiarizes him with
various aspects of the employer's operation, 59 by rotating him through the various
departments under specified guidelines. 60 The defense will not succeed if the "training
program" is so poorly constructed and defined 61 or so informal, unpredictable and
indistinguishable from the normal course of business, 62 that it fails to establish a
credible basis for the unlawful pay differential. Furthermore, when no women
participated in training programs despite their ostensible qualifications for inclusion, this
defense also failed to justify the sexual difference in pay. 63
When the first "trainee" in a "training program" was a male, the employer's use of this
defense failed not only because of the current sexual exclusivity of the program, and the
fact that no formal training sessions were held nor program guidelines issued, but also
because the employer could not identify the position in which the employee was expected
to be placed at the conclusion of "training." 64
749 ----Increased pay for trainees [SUPPLEMENT]
Footnotes
Footnote 57. 736.
Footnote 58. 747.
Footnote 59. Wirtz v Citizens First National Bank (1968, ED Tex) 18 BNA WH Cas 472,
58 CCH LC 32050.
Footnote 60. Usery v Johnson (1977, DC ND) 436 F Supp 35, 20 BNA FEP Cas 1036, 14
CCH EPD 7644, 81 CCH LC 33524.
Footnote 61. EEOC v First Citizens Bank (1985, CA9) 758 F2d 397, 45 BNA FEP Cas
1337, 36 CCH EPD 35156, 102 CCH LC 34670, cert den 474 US 902, 88 L Ed 2d
228, 106 S Ct 228, 48 BNA FEP Cas 786, 38 CCH EPD 35547, 103 CCH LC 34703;
Brennan v First Nat'l Bank (1974, MD Ga) 16 BNA FEP Cas 1097, 75 CCH LC 33152.
Footnote 62. Shultz v First Victoria Nat. Bank (1969, CA5) 420 F2d 648, 9 BNA FEP
Cas 496, 2 CCH EPD 10075, 61 CCH LC 32260.
Footnote 63. Hodgson v Security Nat. Bank (1972, CA8) 460 F2d 57, 9 BNA FEP Cas
761, 4 CCH EPD 7847, 68 CCH LC 32691; Brennan v First Nat'l Bank (1974, MD
Ga) 16 BNA FEP Cas 1097, 75 CCH LC 33152.
228, 106 S Ct 228, 48 BNA FEP Cas 786, 38 CCH EPD 35547, 103 CCH LC 34703.
750 Increased pay for veterans or military service status

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A district court wrongfully rejected a public employer's pay differential based on wartime
veterans status as a "factor other than sex" defense 65 in a pay discrimination claim
brought under the equal work standard. Such a defense may be raised since the "factor
other than sex" need not be either business related or job related. The factor only needs to
be applied on a nondiscriminatory basis, in good faith, by the employer. 66
However, a male employee's status of being a veteran by virtue of being drafted into
military service was not a "factor other than sex" that could justify the pay disparity
between him and other female employees, since the females could not have been drafted.
Therefore, in this instance, the factor was not applied on a sex neutral basis. 67
Observation: Even when veteran or military status is not, by itself, a legitimate

"factor other than sex" defense to a claim under the equal work standard, it may be part
of an employer's policy of increasing pay based on employee potential 68 if certain
aspects of an employee's military experience may be linked to the employee's increased
value to the employer.
Caution: An employer's voluntary policy of paying more to veterans may run afoul
of Title VII if challenged under the adverse impact method of proving discrimination.
69 Such claims may only arise under Title VII, 70 not in the context of a claim
raised under the equal work standard of the EPA. 71
750 ----Increased pay for veterans or military service status [SUPPLEMENT]
Footnotes
Footnote 65. 736.
Footnote 66. Fallon v Illinois (1989, CA7) 882 F2d 1206, 50 BNA FEP Cas 954, 29
Footnote 68. 747.
Footnote 69. As to proof methods, generally, see 2703 et seq.
Footnote 71. 728.
751 Increased pay for "heads of households" or other employee needs

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The EEOC takes the position that an employer who provides increased pay for a "head of
household" or "head of family" will have such policies closely scrutinized under the
EPA, since neither status bears a relationship to the requirements of the job, nor to an
individual's performance on the job. 72 The Commission had earlier determined that
paying a male employee more than a female because of "need," measured by marital
status and number of dependents, did not constitute a violation of Title VII. 73
Observation: The agency's pronouncements listed above are not necessarily

contradictory, since "closer scrutiny" does not dictate a result. The EEOC takes a
stronger position against using "head of household" considerations into effect with
respect to an employer's distribution of fringe benefits. 74
The Fourth Circuit has stated that paying males more than females who are performing
substantially equal work because they have families to support, would violate both Title
VII and the EPA, since it would "illustrate the perception of male dominance in the
workplace that Congress sought to remedy" under both laws. 75 Another court has held
that a religious employer could not provide a family allowance only for men with
dependent children, because of the presumption under religious doctrine that they are
"heads of household," since that does not constitute a "factor other than sex" on which
unequal pay may be based under the EPA. 76
751 ----Increased pay for "heads of households" or other employee needs

[SUPPLEMENT]
Footnotes
Footnote 72. 29 CFR 1620.21.
6200.
Footnote 74. As to fringe benefits generally, see 801 et seq.
Footnote 75. EEOC v Kettler Bros., Inc. (1988, CA4) 846 F2d 70.
35417.
752 Wage affected by disciplinary action

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A wage disparity in positions falling within the equal work standard may be justified on
the statutory defense of "a factor other than sex" if the reason for the disparity lies in a
disciplinary action. For example, paying a male employee more than a female employee
of equal rank was permitted when it was not based on sex, but on the fact that the male
employee had been demoted without loss of pay as a disciplinary measure. 77 However,
as in all disciplinary situations 78 the employer must demonstrate the legitimate
nondiscriminatory reason for the disciplinary action if this defense is to be successful in
an equal pay context. For instance, an employer's rational for failing to implement an
automatic pay raise for a female employee, based on her insufficient tenure due to
injury-related absences, failed when he never demonstrated what length of service was
required to obtain such raises. 79
752 ----Wage affected by disciplinary action [SUPPLEMENT]
Footnotes
Footnote 79. Coe v Cascade Wood Components, Inc. (1988, DC Or) 48 BNA FEP Cas
664, 29 BNA WH Cas 19.
753 Wages affected by company reorganization

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When an employer's company reorganizes, shifting duties and responsibilities may
correspondingly alter the pay rates of affected job classifications. Such situations require
diligence to ensure that newly created or altered positions that are substantially equal to
unaffected jobs, are being compensated in line with the equal work standard. However, if
an employee leaves the company prior to or during a reorganization, and later claims that
her former job has been upgraded with an increased salary, her equal pay claim will not
be successful unless she demonstrates that the upgrade would not have been adopted had
she stayed, or that she would not have received the higher salary after the reorganization.
80
Recommendation: Since the equal pay standard permits equality comparisons of

jobs held by predecessors and successors, 81 the above case demonstrates that an
employer must be particularly sensitive to comparisons not only of the jobs remaining
after a reorganization, but also comparisons of existing jobs with jobs held by
employees who are no longer with the company.
753 ----Wages affected by company reorganization [SUPPLEMENT]
Footnotes
Footnote 80. Patkus v Sangamon-Cass Consortium (1985, CA7) 769 F2d 1251, 38 BNA
FEP Cas 1272, 1 BNA IER Cas 1716, 120 BNA LRRM 2206, 27 BNA WH Cas 499, 37
CCH EPD 35453.
Footnote 81. 731.
754 Wages affected by affirmative action plans

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An employer's voluntary affirmative action plan which increases the salaries of females
as a group for the purpose of rectifying past discrimination against that gender constitutes
a valid "factor other than sex" defense to a claim under the EPA, if the increase merely
restores victims of past discrimination to salaries they would have enjoyed in the absence
of discrimination. 82
Caution: Voluntary affirmative action plans remedying wage discrimination must,

like all voluntary affirmative action plans, conform to the standards established to
protect third party interests. 83
754 ----Wages affected by affirmative action plans [SUPPLEMENT]
Footnotes
Footnote 82. Ende v Board of Regents (1985, CA7) 757 F2d 176, 37 BNA FEP Cas 575,
28 BNA WH Cas 297, 36 CCH EPD 35081, 102 CCH LC 34661
755 Pay as reward for longevity or service

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An employer may pay a wage differential to reward an employee for longevity or service.
Such rewards can constitute a "factor other than sex" defense 84 to a pay discrimination
claim brought under the equal work standard, even if the reward is not tied a bona fide
seniority system. 85 For example, an employer who creates a job category at an
artificially inflated wage, to protect longstanding workers from discharge when they are
unable to perform previously assigned duties through no fault of their own, does not
violate the EPA. 86 Likewise, a special designation that carried increased pay could be
justified despite the sexual pay disparity it created, when it was given only to workers
who had long served the employer, both as a reward to those individuals and as an
incentive 87 to newer employees. 88
A service pay reward does not have to be linked to tenure in order to constitute a
successful "factor other than sex" defense to a pay discrimination claim. For instance, an
employer who rewarded certain employees with an attendance bonus in order to address
an absentee problem peculiar to their department, did not violate Title VII. 89
755 ----Pay as reward for longevity or service [SUPPLEMENT]
Footnotes
Footnote 84. 736.
Footnote 85. 739.
Footnote 86. 29 CFR 1620.26(a); Salazar v Marathon Oil Co. (1980, SD Tex) 502 F
Footnote 87. 741.
Footnote 88. Goodrich v International Brotherhood of Electrical Workers (1985, DC Dist
Col) 40 BNA FEP Cas 303, 27 BNA WH Cas 857, 39 CCH EPD 35813, 103 CCH LC
34735, affd 259 App DC 318, 815 F2d 1519, 43 BNA FEP Cas 727, 28 BNA WH Cas
19, 42 CCH EPD 36926, 106 CCH LC 34896.
Footnote 89. Boyd v Madison County Mut. Ins. Co. (1981, CA7) 653 F2d 1173, 28 BNA
756 "Red circling" pay for temporary assignments

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The EEOC recognizes that an employer, for a variety of reasons, may require an
employee to perform work at a lower paid job classification for a short period of time,
and may wish to continue to pay that employee his normal salary during the temporary
reassignment. The higher or "red circled" wage for performing less valuable duties may
constitute a "factor other than sex" defense under certain circumstances. Conversely, that
defense may also apply to a temporary job assignment which is paid at a higher rate than
the temporarily assigned employee's normal pay, and the employer may "red circle" the
lower rate of pay for the employee during the temporary assignment, as long as the rate is
not based on quality or quantity of production. However, this defense will not apply
once an employer knows that the reassignment will not be of temporary duration, and the
Commission considers assignments for longer than one month to raise questions as to
their temporary nature. 90 Furthermore, "red circling," like all statutory defenses under
the EPA, is only a valid defense to the extent that it justifies the entire wage disparity, not
just a portion of it. 91
756 ----"Red circling" pay for temporary assignments [SUPPLEMENT]
Footnotes
Footnote 90. 29 CFR 1620.26(b).
Footnote 91. Gosa v Bryce Hospital (1986, CA11 Ala) 780 F2d 917, 43 BNA FEP Cas
757 Shift differentials in pay

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Employers cannot defend a pay discrimination claim raised under the equal work
standard solely on the grounds that different shifts constitute different "working
conditions". 92 Furthermore, even when one shift does different work, the pay must be
equalized unless the work entails greater skill, 93 effort, 94 or responsibility. 95
State Aspects: Note that some pay differentials permitted under state law may
contravene Title VII or the Equal Pay Act, such as paying men and women differently
based on the shift or time of day worked. Employers covered by these federal laws will
not escape federal liability even if the actions are permitted under state law. 96
757 ----Shift differentials in pay [SUPPLEMENT]
Footnotes
Footnote 92. 29 CFR 1620.18(a).
Footnote 93. Wirtz v Dennison Mfg. Co. (1967, DC Mass) 265 F Supp 787, 9 BNA FEP
Cas 480, 1 CCH EPD 9768, 55 CCH LC 31919.
Footnote 94. Shultz v American Can Company-Dixie Products (1970, CA8) 424 F2d 356,
Footnote 95. Hodgson v Miller Brewing Co. (1972, CA7) 457 F2d 221, 9 BNA FEP Cas
726, 4 CCH EPD 7691, 67 CCH LC 32641.
Footnote 96. Employment Coordinator EP- 20,281.
c. Other Theories of Wage and Salary Discrimination [758-760]
(1). Types of Violations [758-760]
758 Intentional pay discrimination prohibited by Title VII and the ADEA
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While both Title VII and the ADEA prohibit discrimination in pay, 97 and both statutes
have been used by claimants asserting the equal work standard, 98 both laws prohibit
pay discrimination more broadly. The Supreme Court held that the fact that Title VII
incorporates the statutory defenses of the Equal Pay Act 99 does not mean that a
claimant is limited to bringing only pay discrimination claims that conform to the
requirements of the equal work standard. Thus, employees holding unique positions with
an employer, which cannot be compared to other positions, as well as employees not
doing substantially equal work to that of a higher paid employee of a different sex, may
still demonstrate a violation of Title VII with reliable evidence that the wage paid is
affected by intentional sex discrimination. 1 Likewise, while claims raised under the
equal work standard only forbid disparities in pay, the Title VII intentional pay
discrimination claim may be raised by an employee who claims that she is receiving
equal pay to that of a comparison male, but should be receiving more, but for unlawful
sexual discrimination. 2 Furthermore, intentional pay discrimination claims under Title
VII may involve allegations of pay disparity involving jobs that do not meet the equal
work standard's requirement of being substantially equal, 3 such as claims based on
comparable worth. 4
Similarly, claimants have successfully brought intentional age discrimination in pay
claims under the ADEA which did not conform to the requirements of the equal work
standard. For example, a salary system which made older employees wait longer than
younger employees for minimum salary increases violated the statute. 5
When intentional discrimination in pay claims are brought under either statute, all of the
respective statutes' exceptions or defenses which are applicable to any type of intentional
discrimination claim, correspondingly apply to claims alleging pay discrimination. For
instance, an employer successfully presented a "factor other than age" defense for a pay
disparity involving jobs requiring substantially equal work, when it demonstrated that
more employees in the under-paid job category were younger than 40 years of age. 6
Likewise, the discrepancy in pay increases between older and younger workers was
determined not to be based on age, but on the unfair, but not illegal, subjective
evaluations by management concerning the value of certain projects, the varying styles of
management evaluation used on an individual basis, and personality conflicts between
some of the employees involved and the evaluators. 7 Furthermore, it did not constitute
age discrimination for an employer to pay younger persons a larger salary increase than
older persons when the reason for the differential was a policy of providing larger salary
increases to workers with lower base salaries, in order to maintain comity within the
same salary range. 8
Since a pay discrimination claim under Title VII may rely on the equal work standard,
when it is raised under that standard and contains an intentional sex discrimination in
compensation charge, it must be evaluated under two different methods of analysis.
Therefore, a claim may fail under the equal work standard, but still successfully
demonstrate intentional sex discrimination in pay. 9
Although Title VII prohibits national origin discrimination in pay, it does not prohibit
paying persons a different wage based on their citizenship. Thus, it was not a violation of
Title VII for a U.S. subsidiary of a Japanese company, pursuant to a treaty permitting
companies of either country to employ executives of their choosing in the other country,
to pay its Japanese managers more than its American managers on the basis of their
citizenship. 10
758 ----Intentional pay discrimination prohibited by Title VII and the ADEA
[SUPPLEMENT]
Case authorities:
Employer who wishes to avail itself of unclean hands defense must demonstrate that
plaintiff's wrongdoing is directly related to claim against which it is asserted, and that
employer was personally injured by plaintiff's conduct; thus, employer was not entitled to
defense in Title VII case where plaintiff falsely claimed that she had college degree,
because whether or not plaintiff had degree was irrelevant to her wage discrimination
claim since neither her predecessor nor her successor had college degrees. Calloway v
Partners Nat. Health Plans (1993, CA11 Ala) 986 F2d 446, 61 BNA FEP Cas 550, 7
FLW Fed C 128.
State human rights commission erred in finding disparate impact of state university's
salary structure, which offered incoming professors competitive market salaries while not
similarly adjusting salaries of older tenured professors, to be form of age discrimination,
where university established that two-tier structure was necessary to attract top
candidates, while grant of tenure relieved older professors of much stress related to job
security. West Va. University/West Va. Bd. of Regents v Decker (1994, W Va) 447 SE2d
259.
Footnotes
Footnote 97. 725.
Footnote 98. 728.
Footnote 99. 736.

Footnote 1. County of Washington v Gunther (1981) 452 US 161, 68 L Ed 2d 751, 101
Footnote 2. Lamphere v Brown University (1980, DC RI) 491 F Supp 232, 24 BNA FEP
Footnote 3. 731.
Footnote 4. 759.
Footnote 5. Mistretta v Sandia Corp. (1977, DC NM) 15 BNA FEP Cas 1690, 15 CCH
EPD 7902, affd (CA10) 639 F2d 588, 24 BNA FEP Cas 316, 26 BNA FEP Cas 218, 24
CCH EPD 31304, 24 CCH EPD 31379.
Footnote 6. Gaston v Southern Bell Tel. & Tel. Co. (1987, ND Ga) 674 F Supp 347, 45
Footnote 7. Fong v Beggs (1985, DC Dist Col) 620 F Supp 847, 42 BNA FEP Cas 1240,
37 CCH EPD 35385.
Footnote 8. D'Aquino v Citicorp/Diner's Club, Inc. (1991, ND Ill) 755 F Supp 218, 54
BNA FEP Cas 1479.
Footnote 9. Crockwell v Blackmon-Mooring Steamatic, Inc. (1985, WD Tenn) 627 F
Supp 800, 43 BNA FEP Cas 1451, 28 BNA WH Cas 117, 40 CCH EPD 36411.
Footnote 10. Fortino v Quasar Co. (1991, CA7) 950 F2d 389, 57 BNA FEP Cas 712, 57
CCH EPD 41117.
759 Comparable worth theory of sex discrimination

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Since intentional pay discrimination prohibited by Title VII need not conform to the
equal work standard's "equality of work" requirement, 11 sex discrimination in pay
claims under the statute have sometimes attempted to take advantage of this distinction
by advocating the concept of comparable worth discrimination. This concept would
allow the sexual groupings of the jobs being compared to be "comparable" or similar in
worth, in enough respects, to require equal, or at least more proportionally equal,
compensation. The basis for this concept relies on an historical link between the sexual
segregation of particular jobs, with a devaluation of the work "reserved" for women. 12
The "worth" aspect of the comparable worth concept has been referred to as involving the
"intrinsic worth or difficulty" of dissimilar jobs. 13 However, most sex discrimination
in pay claims under the comparable worth concept do not rely on the "worth" as
representing benefits to the society at large from the successful performance of the job,
but evaluate "worth" in terms of the benefits received by the employer. 14
The EEOC has taken the position that the comparable worth concept will not raise a sex
discrimination in pay claim under Title VII. The Commission finds that Congress did not
intend the statute to require a restructuring of job values that were set by
nondiscriminatory employer decisions, the collective bargaining process, or market
factors. 15 Similarly, several circuits have flatly rejected sex discrimination in pay
claims based on the comparable worth concept when pay disparities between unequal
jobs in sexually segregated classifications were shown to be the result of market rate
decisions. 16
The rationales used by courts in rejecting the comparable worth concept as a
demonstration of unlawful sex discrimination in pay, include:
unwieldy evaluations of job comparability merely obfuscate intentional discrimination
issues with a confusing array of factors, and would require courts to exercise standardless
supervision of employer/employee relations; 17
employers are not obligated by Title VII to eliminate sexual economic inequities in the
free market which they did not create; 18
claimants "ask too much," without objective evaluation evidence, in requiring a court to
make essentially subjective assessments of the value of unequal jobs, and
correspondingly determine if sex was a factor in paying less than the full value. 19
When an employer conducts or is confronted with a comparable worth study concerning
the value of dissimilar and largely sexually segregated positions, the employer may, but
is not obligated to, implement comparable worth pay schemes attempting to eliminate
economic inequities the employer did not create. 20 Title VII will only be violated if an
employer fails to implement such a study because of a discriminatory motive, rather than
because of market concerns, 21 or when the employer deliberately segregates jobs by sex
and prevents women from entering the higher paid positions. 22 However, an
employer's adoption of portions of a comparable worth pay scheme, at great expense, has
constituted evidence of its sensitivity to pay inequity, and, correspondingly, its lack of a
discriminatory intent. 23
Observation: Intentional sex discrimination in pay claims which are not based on the
comparable worth concept have also been defended based on market rate justifications
24 and job classification systems. 25
State aspects: Sex discrimination in pay prohibitions appearing in state jobs

discrimination laws may contain "comparability" language in describing the
prohibition. Under such circumstances, without judicial or regulatory interpretation of
that language, an employer should not assume that a comparable worth concept will
necessarily be viable or untenable under that statute. 26
Footnotes
Footnote 11. 758.

Footnote 12. Briggs v Madison (1982, WD Wis) 536 F Supp 435, 28 BNA FEP Cas 739,
Footnote 14. Christensen v Iowa (1977, CA8) 563 F2d 353, 16 BNA FEP Cas 232, 15
CCH EPD 7835; Spaulding v University of Washington (1984, CA9) 740 F2d 686, 35
BNA FEP Cas 217, 26 BNA WH Cas 1335, 34 CCH EPD 34496, cert den 469 US
1036, 83 L Ed 2d 401, 105 S Ct 511, 36 BNA FEP Cas 464, 26 BNA WH Cas 1622, 35
CCH EPD 34793.
Footnote 16. Sixth CircuitInternational Union, etc. v Michigan (1989, CA6) 886 F2d
Seventh CircuitAmerican Nurses' Asso. v Illinois (1986, CA7) 783 F2d 716, 40 BNA
Ninth CircuitAmerican Federation of State, etc. v Washington (1985, CA9) 770 F2d
Footnote 17. Spaulding v University of Washington (1984, CA9) 740 F2d 686, 35 BNA
FEP Cas 217, 26 BNA WH Cas 1335, 34 CCH EPD 34496, cert den 469 US 1036, 83
L Ed 2d 401, 105 S Ct 511, 36 BNA FEP Cas 464, 26 BNA WH Cas 1622, 35 CCH EPD
34793.
Footnote 18. American Federation of State, etc. v Washington (1985, CA9) 770 F2d
1401, 38 BNA FEP Cas 1353, 37 CCH EPD 35459
Footnote 19. Plemer v Parsons-Gilbane (1983, CA5) 713 F2d 1127, 32 BNA FEP Cas
Footnote 21. International Union, etc. v Michigan (1989, CA6) 886 F2d 766, 50 BNA
FEP Cas 1560, 51 CCH EPD 39376.
Footnote 22. American Nurses' Asso. v Illinois (1986, CA7) 783 F2d 716, 40 BNA FEP
Cas 244, 39 CCH EPD 35902.
Footnote 23. International Union, etc. v Michigan (1989, CA6) 886 F2d 766, 50 BNA
FEP Cas 1560, 51 CCH EPD 39376.
Footnote 24. 761.
Footnote 25. 762.
Footnote 26. State EEO statutes dealing with wage and salary issues are discussed in
Employment Coordinator eP-20,281 et seq.
760 Statistical claims of pay discrimination

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Statistical claims of pay discrimination under Title VII have been brought under both the
disparate treatment and disparate impact methods of proof. 27 Statistical claims
brought under the disparate treatment method of proof normally involve a multiple
regression analysis in which the controversy centers on whether the statistics offered to
reflect intentional discrimination have reliably eliminated all but the impermissible
factor, such as race, as explanations for the pay disparity, or whether they still fail to
refine the data, leaving the permissible inference that education, experience, assignments,
or prior salaries, could be the real reason for the statistical differences. 28 Thus, data
comparing "mean" or "average" pay which have been differentiated only by race failed to
reflect differences in skill, education, training, 29 and seniority, 30 all of which could
have accounted for unequal salaries in an environment free of discrimination. 31
Similarly, a statistical claim of age discrimination in the rate of merit increases an
employer provided for college faculty did not account for the influence of tenure, which
could be reasonably viewed as a form of compensation substituted for higher salary
increases. 32
However, other than impermissible factors need not be eliminated from a statistical
disparate treatment case if those factors do not affect pay, or if they are tainted with
impermissible discrimination, such as when subjective evaluations failed to control for
potential racial bias, and the application of an educational requirement which partially
determined pay had an unlawful disparate impact on blacks without a business
justification. 33
Statistics in pay discrimination cases may also be flawed if they failed to incorporate the
nature of the employer's salary determinations. For example, persuasive evidence of
sexual discrimination in pay could not be presented by aggregating the pay data for each
job of a nationally-based employer for all of its outlets throughout the United States,
when salary decisions were almost always made by individual managers on a group or
zone basis. 34
Statistics evaluating the pay of job classifications containing substantial numbers of
employees of both sexes will also fail to persuade a court that intentional sex
discrimination is the basis for any pay difference between those classifications. 35
Disparate impact claims of sexual discrimination have been based on employers' policies
of primarily or exclusively establishing initial wage rates based on past salaries with
previous employers. Courts have found such a policy to have an unequal negative effect
on female employees, who tend to receive lower salaries than male employees doing the
same jobs. Therefore, unless the employer has a legitimate business reason to justify
such a policy, it will constitute unlawful sex discrimination. 36
Observation: The above adverse impact cases differ from a market rate defense to
intentional pay discrimination 37 insofar as no true evaluation of market rate is being
relied upon. Rather, the employer is merely operating on an unproven assumption that
the market rate set a previous salary.
Footnotes
Footnote 27. As to particular proof methods, see 2699 et seq. Statistical sex
discrimination in pay claims arising in the context of particular jobs are discussed at
767 et seq.
Footnote 28. Agarwal v Arthur G. McKee & Co. (1977, ND Cal) 19 BNA FEP Cas 503,
16 CCH EPD 8301, affd Agarwal v Arthur G. McKee & Co. (1981, CA9 Cal) 644 F2d
CCH EPD 11285.
Footnote 30. EEOC v H. S. Camp & Sons, Inc. (1982, MD Fla) 542 F Supp 411, 33 BNA
Footnote 31. Pouncy v Prudential Ins. Co. (1982, CA5) 668 F2d 795, 28 BNA FEP Cas
121, 28 CCH EPD 32451.
Footnote 32. Tagatz v Marquette University (1988, CA7) 861 F2d 1040, 50 BNA FEP
Cas 99, 48 CCH EPD 38462.
Cas 1257, 45 CCH EPD 37681.
Footnote 35. Schulte v New York (1981, ED NY) 533 F Supp 31, 37 BNA FEP Cas
1438, 25 BNA WH Cas 202, 93 CCH LC 34163; Beall v Curtis (1985, MD Ga) 603 F
Supp 1563, 37 BNA FEP Cas 644, 27 BNA WH Cas 166, 37 CCH EPD 35267, 105
CCH LC 34817, affd without op (CA11) 778 F2d 791, 40 BNA FEP Cas 984, 29 BNA
WH Cas 608, 39 CCH EPD 35885.
Footnote 36. Kouba v Allstate Ins. Co. (1982, CA9) 691 F2d 873, 30 BNA FEP Cas 57,
30 CCH EPD 33123; Neeley v Metropolitan Atlanta Rapid Transit Authority (1979,
ND Ga) 24 BNA FEP Cas 1610, 25 CCH EPD 31693, affd without op (CA5) 641 F2d
877, 25 BNA FEP Cas 1604.
Footnote 37. 761.
d. Other Defenses [761-764]
761 Market rate justifications

View Entire Section
The Supreme Court has stated that an employer's past discriminatory practices may
constitute a present effect of pay discrimination when the employer fails to eradicate
unlawful pay discrepancies. 38
However, with respect to pay discrimination claims
not raised under the equal work standard 39 an employer is not held responsible for
following market rate conditions in establishing pay, despite the fact that the market may
have depressed the wages of sexually segregated job classifications. Therefore,
employers have been successful in defending pay claims raised under both the disparate
treatment and disparate impact 40 methods of proof by following market conditions in
setting wage rates. Under such circumstances, the employer does not exercise an
independent judgment but only deals with the market as "a given," and "market prices are
inherently job-related." 41 Title VII does not require the employer to ignore the
economic realities of supply and demand when it sets wages or salaries. 42 For
example, tenured and senior college professors were unable to prove that a university's
policy of only paying new hires in their profession at a "market rate" had an unlawful
adverse impact on the salaries of older professors, under the ADEA, when they failed to
demonstrate that their alternative of paying all professors at the "market rate" was
economically possible. 43
However, an employer cannot use the market rate as a pretextual excuse for intentional
sex discrimination. For example, an employer's market rate justification was not
believable as an excuse for suppressing the salary of positions held exclusively by
women, when the evidence demonstrated that the employer otherwise consistently paid
employees above the prevailing market rate. 44 Likewise, when a market analysis
indicated that predominantly female jobs should be paid at 95% of the rate of
predominantly male jobs, the employer's decision to pay the female workers at a rate of
only 70% of the male positions exhibited an unlawful sexually discriminatory intent. 45
Footnotes
Footnote 38. Bazemore v Friday (1986) 478 US 385, 92 L Ed 2d 315, 106 S Ct 3000,
Footnote 39. As to the equal work standard, generally, see 758 et seq.
Footnote 40. As to particular proof methods, see 2699 et seq. Statistical sex
discrimination in pay claims arising in the context of particular jobs are discussed at
767 et seq.
Footnote 41. Spaulding v University of Washington (1984, CA9) 740 F2d 686, 35 BNA
FEP Cas 217, 26 BNA WH Cas 1335, 34 CCH EPD 34496, cert den 469 US 1036, 83
L Ed 2d 401, 105 S Ct 511, 36 BNA FEP Cas 464, 26 BNA WH Cas 1622, 35 CCH EPD
34793.
CCH EPD 7835.
Footnote 43. MacPherson v University of Montevallo (1991, CA11) 922 F2d 766, 55
BNAFEP Cas 13, 55 CCH EPD 40539.
Footnote 44. Gibbs v Pierce County Law Enforcement Support Agency (1986, CA9) 785
F2d 1396, 40 BNA FEP Cas 673, 40 CCH EPD 36097
762 Salaries established by a job classification system

View Entire Section
Pay discrimination claims not brought under the equal work standard 46 may, like
claims brought under that standard 47 be successfully defended against intentional
discrimination challenges if an employer demonstrates that wage rates are established
under neutral job classification systems. For example, when the persons responsible for
establishing a classification system were unaware of the incumbent's gender, it could not
be shown that the pay rate was influenced by intentional sex discrimination. 48
However, an employer may not apply a particular classification system inconsistently, on
the basis of sex. 49 Thus, an employer's evaluation system that awarded the same
number of points to predominantly female as to predominantly male positions doing
unequal work, was discriminatorily applied when the employer set higher wage rates for
the male positions. 50
Furthermore, a job classification system will not be found gender-neutral if the
classifications created are tainted by subjective discriminatory bias, 51 or if a
gender-neutral system is only applied to one sex. For instance, a valid issue concerning
sex discrimination in pay arose when an employer used an objective compensation
system to set wages for traditional male jobs in one division, but implemented a
subjectively based compensation system for traditionally female jobs in another division.
52
Footnotes
Footnote 47. 743.
Footnote 48. International Union, United Auto., etc. v Michigan (1987, ED Mich) 673 F
Footnote 50. International Union of Electrical, etc. v Westinghouse Electric Corp. (1980,
CA3) 631 F2d 1094, 23 BNA FEP Cas 588, 23 CCH EPD 31106a, cert den 452 US
967, 69 L Ed 2d 980, 101 S Ct 3121, 101 S Ct 3122, 25 BNA FEP Cas 1835, 26 CCH
EPD 31890.
Footnote 51. Reaves v Marsh (1987, ED Ark) 658 F Supp 1268, 43 BNA FEP Cas 1235.
763 Pay based on performance

View Entire Section
Pay discrimination claims which are not raised under the equal work standard, 53 may,
like claims raised under that standard 54 be successfully defended if the pay differences
are the result of individual employee performance differences. However, pay
differentials affected by a discriminatory motivation cannot be justified as
performance-based. For example, the smaller raises received by a black foreman as
opposed to a white foreman could not be explained on the basis of the black employee's
poor performance evaluations, since they were inextricably related to the racial
discrimination he suffered in being denied the necessary training. 55
Footnotes
Footnote 54. 740.
Cas 1617, 44 CCH EPD 37428.
764 Pay based on other nondiscriminatory factors

View Entire Section

Just as in any other intentional discrimination claim brought under the statute, Title VII
intentional pay discrimination claims 56 may be successfully defended if the employer
demonstrates that the pay was based on a nondiscriminatory factor. For example, it was
not sex discrimination for an employer to pay a female employee the same salary as it
paid two male employees with less education and experience, when the evidence showed
that the employer, prior to hiring those three employees, determined that it would divide
its limited resources equally in establishing the salaries for each position. 57
Footnotes
Footnote 56. 758.
Footnote 57. Lamphere v Brown University (1980, DC RI) 491 F Supp 232, 24 BNA
FEP Cas 1580, affd (CA1) 685 F2d 743, 29 BNA FEP Cas 701, 29 CCH EPD 32928.
e. Remedies for Pay Discrimination [765, 766]
765 Reducing wages to comply with the law

View Entire Section
Go to Supplement
Both the ADEA 58 and the Equal Pay Act (EPA) 59 prohibit employers from reducing
the wage rate of any employee in order to comply with the respective statutes' pay
discrimination prohibitions.
An employer can only come into compliance with the EPA by raising the wage rate of
the lower paid sex. 60 The employer cannot comply with the statute merely by giving
women the opportunity to apply for substantially equal but higher paid work, since that
prospective relief does not address current violations of the statute. 61
Nor can an
employer "red circle" 62 the wage rate of an unlawfully higher paid employee under the
Act, since this only continues the inequities the EPA was intended to cure. 63
Thus, an employer cannot comply with the EPA by transferring higher paid males into
lower-paying jobs previously held only by females, 64 or by removing males from
higher paid jobs so that only females occupy the substantially equal but differently paid
comparison positions. 65
However, this EPA prohibition only applies once a claimant has demonstrated that the
jobs fall within the equal work standard. 66 Therefore, an employer may eliminate a
higher paid classification and distribute the duties among a lower paid classification as
long as the two classifications never perform substantially equal work. 67
The provision in Title VII that incorporates the statutory defenses of the EPA 68 does
not also incorporate the EPA's prohibition against reducing wages in order to comply
with the statute. Therefore, such an action by an employer is not forbidden to cure pay
inequities prohibited only by Title VII. 69
765 ----Reducing wages to comply with the law [SUPPLEMENT]
Footnotes
Footnote 60. 29 CFR 1620.25.
Footnote 62. As to red circling generally, see 756.
Footnote 63. 29 CFR 1620.26(a).
Footnote 64. Hodgson v Miller Brewing Co. (1972, CA7 Wis) 457 F2d 221, 9 BNA FEP
Cas 726, 4 CCH EPD 7691, 67 CCH LC 32641.
Footnote 67. Brobst v Columbus Services International (1984, WD Pa) 582 F Supp 830,
34560.
Footnote 68. 736.
Footnote 69. Norris v Arizona Governing Committee for Tax Deferred Annuity &
Deferred Compensation Plans (1986, CA9) 796 F2d 1119, 7 EBC 1913, 41 BNA FEP
Cas 820, 40 CCH EPD 36371.
766 Other remedies for sex discrimination under the EPA

View Entire Section
Go to Supplement
A victim's backpay award under the EPA is computed as the difference between her
salary and that of a male employee who is earning more for performing substantially
equal work, if such an employee can be identified. 70 If such an employee cannot be
identified, the victim's backpay is the difference between her salary and the average
salary of an employee performing substantially equal work. 71 A victim's required wage
or salary under the EPA includes the full amount attributable to a violation. Therefore, if
her pay should have been higher at the time she was unlawfully discharged, a backpay
award must be based on the higher salary. 72
766 ----Other remedies for sex discrimination under the EPA [SUPPLEMENT]
Footnotes
Footnote 70. Grimes v District of Columbia (1988) 266 App DC 483, 836 F2d 647, 45
Footnote 71. EEOC v Liggett & Myers, Inc. (1982, CA4) 690 F2d 1072, 40 BNA FEP
Cas 1285, 30 CCH EPD 33083, 95 CCH LC 34263; Grimes v Athens Newspaper,
Inc. (1985, MD Ga) 604 F Supp 1166, 40 BNA FEP Cas 1792, 37 CCH EPD 35323,
102 CCH LC 34672.
Footnote 72. Crabtree v Baptist Hospital of Gadsden, Inc. (1985, CA11) 749 F2d 1501,
f. Claims of Sex Discrimination in Wages and Salaries in Particular Jobs [767-800]
767 Airline cabin attendants

View Entire Section
An airline could not justify paying male pursors more than its female stewardesses under
the "factor other than sex" defense of the EPA, based on the male employees' foreign
flying assignments, when a large percentage of the pursors were used only on domestic
flights, but still received the higher pay. 73
Footnotes
Footnote 73. Laffey v Northwest Airlines, Inc. (1976) 185 App DC 322, 567 F2d 429, 13
BNA FEP Cas 1068, 12 CCH EPD 11216, 84 CCH LC 33698, cert den 434 US 1086,
768 Bank tellers

View Entire Section
A bank may pay more to male than to female tellers if the added pay is based on
significant extra duties and responsibilities. 74 Therefore, banks have successfully
defended pay discrimination claims raised under the equal work standard whe:
male exchange tellers were paid more than female note tellers, since their work was
more complicated and mistakes made were more costly to the bank; 75
male commercial tellers worked longer hours, more days, handled a greater volume of
transactions, and had more responsibility in dealing with bad checks than did female
note, exchange, collection, savings, or mail tellers; 76
a male bookkeeper was paid more than a female bookkeeper because of his additional
duty of posting the daily "general ledger," which entailed more effort and constituted a
greater responsibility because of its importance to the daily operation of the bank; 77
a male employee functioning as both a teller and a bookkeeper could be paid more than
either female tellers or female bookkeepers, because his duties were unique, not
substantially equal to either of the other jobs. 78
Banks have not been successful in defending sexual pay disparities among tellers based
on additional duties when:
a male commercial department supervisor received more pay than a female head teller
because he prepared federal reserve reports, reconciled the monthly bank statements and
bi-monthly treasury tax and loan accounts, and computed calls against the latter accounts,
since those duties were of equal skill to the duties required of the head teller, and
consumed an insubstantial amount of his total work time; 79
male tellers received more pay than female tellers for their infrequent and irregular
attempts to collect on bad checks, and for lifting money bags for approximately ten
minutes during each work day. 80
Wages paid under a merit system justified the pay differences between male and female
tellers when it involved a systematic and formal process, guided by sex-neutral objective
written standards. 81 Conversely, an unorganized and unstructured merit system based
on a manager's "gut feeling" did not offer a nondiscriminatory rational for pay
differences. 82 Likewise, a purely subjective opinion of a male teller's management
potential outside of the context of a bona fide training program did not establish a
legitimate higher pay for a male than a female teller. 83
Education and experience justifications for pay discrepancies between male and female
note tellers did not withstand scrutiny when the application of those factors should have
resulted in some of the female tellers being compensated at a higher rate than some of the
males, but did not. 84
Finally, a bank did not lawfully increase the pay of a male loan teller above that of a
female loan teller as a reward for his "patriotism" for serving in the military, since he was
drafted, and no female could be drafted 85
Footnotes
Footnote 74. Wirtz v Citizens First Nat. Bank (1968, ED Tex) 58 CCH LC 32050.
Footnote 76. Wirtz v First Victoria Nat. Bank (1970, SD Tex) 9 BNA FEP Cas 561, 2
CCH EPD 10297, 63 CCH LC 32378, affd (CA5) 446 F2d 47, 9 BNA FEP Cas 669, 3
CCH EPD 8302, 66 CCH LC 32545.
Footnote 77. Hodgson v American Bank of Commerce (1971, CA5) 447 F2d 416, 9 BNA
FEP Cas 677, 9 BNA FEP Cas 686, 3 CCH EPD 8321, 4 CCH EPD 7525, 66 CCH
LC 32551.
Footnote 78. Hodgson v American Bank of Commerce (1971, CA5) 447 F2d 416, 9 BNA
FEP Cas 677, 9 BNA FEP Cas 686, 3 CCH EPD 8321, 4 CCH EPD 7525, 66 CCH
LC 32551.
Footnote 80. Brennan v First Nat'l Bank (1974, MD Ga) 16 BNA FEP Cas 1097, 75 CCH
LC 33152.
Footnote 83. Marshall v Security Bank & Trust Co. (1978, CA10) 572 F2d 276, 17 BNA
769 Bank teller trainees

View Entire Section
Banks may pay more to male than female tellers if the difference is based on a bona fide
training program that familiarizes the male employee with various aspects of the bank's
operation. 86 However, a training justification for male/female pay disparities is
insufficient if:
no women participate in the training, despite their ostensible qualifications for
inclusion; 87
the program is so loosely constructed and ill-defined, 88 or so informal, unwritten,
unpredictable, and indistinguishable from the normal course of business, 89 that it
cannot constitute a "bona fide" training program;
the training program cannot be viewed as "bona fide" absent formal programs, sessions,
instructions, or identification of the position to be held at the program's completion. 90
Footnotes
Footnote 86. Wirtz v Citizens First Nat. Bank (1968, ED Tex) 58 CCH LC 32050.
Footnote 87. Hodgson v Security Nat. Bank (1972, CA8) 460 F2d 57, 9 BNA FEP Cas
761, 4 CCH EPD 7847, 68 CCH LC 32691.
Footnote 88. Brennan v First Nat'l Bank (1974, MD Ga) 16 BNA FEP Cas 1097, 75 CCH
LC 33152.
Cas 496, 2 CCH EPD 10075, 61 CCH LC 32260.
228, 106 S Ct 228, 48 BNA FEP Cas 786, 38 CCH EPD 35547, 103 CCH LC 34703.
770 Barbers and beauticians

View Entire Section
Male barbers and female beauticians who all perform substantially equal work may not
be paid unequally based merely on the fact that the state licenses those professions under
separate statutory schemes. 91
Footnotes
Footnote 91. Usery v Allegheny County Institution Dist. (1976, CA3) 544 F2d 148, 13
BNA FEP Cas 1188, 12 CCH EPD 11221, 79 CCH LC 33440, cert den 430 US 946,
771 Bookbinders
View Entire Section
Male and female bookbinders performed substantially equal work, so that it was unlawful
to pay the males a higher wage based on the mere fact that they operated different
machines. However, the skills needed to operate the more advanced machines were
greater and, therefore, justified the higher pay of some male bookbinders. 92
Footnotes
772 Buyers
View Entire Section
A female buyer of electronic equipment for a commercial establishment could not be paid
less than her male predecessor based on the employer's contention that the job had been
"down graded", when the employer offered no evidence of a written job description
indicating a reduction in duties commensurate with the lower salary. 93
Footnotes
Footnote 93. Bourque v Powell Electrical Mfg. Co. (1977, SD Tex) 445 F Supp 125, 19
1191, 23 CCH EPD 30891.
773 Claims personnel

View Entire Section
An insurance company could not pay male claims adjusters more than female claims
personnel merely because adjusters had to frequently leave the office to do their work,
unlike the female employees. Those circumstances did not constitute different "working
conditions" that would justify different pay for substantially equal work. 94
Footnotes
Footnote 94. Wetzel v Liberty Mut. Ins. Co. (1978, WD Pa) 449 F Supp 397, 17 BNA
774 Clerical workers

View Entire Section
Male clerks were legally paid more than female clerks when the jobs held by males
involved greater effort and responsibilities for the additional duties of:
preparing payrolls, inventory, and pricing reports; 95
settling insurance claims, investigating accidents, and supervising a driving school; 96
making large discretionary expenditures on the employer's behalf; 97
processing complicated orders that could not be routinely handled through a computer
system. 98 Furthermore, discrepancies in pay between male and female clerks are
justified when the wage differences are established under a seniority system. 99
However, the fact that one male records clerk had greater responsibility than a female
stenographer, did not justify the stenographer's lesser salary in comparison to another
male records clerk whose job was substantially equal to hers. 1 Furthermore, male clerks
enrolled in a sales training program could not be paid higher than female clerks based on
their training status, because the program excluded females under the assumption that
they would find travel undesirable. Thus, the training program was not "bona fide" and
gender- neutral in application. 2
Female clerical workers were unsuccessful in attempting to demonstrate a Title VII sex
discrimination in pay claim under the comparable worth concept, despite evidence that
their work and that of predominately male physical plant workers was of equal economic
value to the employer. The difference in compensation of the disparate jobs was
legitimately based on the different market rate established for such positions. 3
Footnotes
Footnote 95. Brennan v People's Electric Cooperative, Inc. (1974, ED Okla) 385 F Supp
581, 8 CCH EPD 9664.
Footnote 96. Huckeby v Frozen Food Express (1977, ND Tex) 427 F Supp 967, 14 BNA
Footnote 97. Kilpatrick v Sweet (1967, MD Fla) 262 F Supp 561, 1 CCH EPD 9748.
Footnote 98. Dunlop v General Electric Co. (1975, WD Va) 401 F Supp 1353, 20 BNA
FEP Cas 847, 11 CCH EPD 10614, 13 CCH EPD 11445, 79 CCH LC 33433.
Footnote 99. Kilpatrick v Sweet (1967, MD Fla) 262 F Supp 561, 1 CCH EPD 9748.
As to the use of a seniority system as a defense for a wage differential, see 739.
Footnote 1. Miller v Kansas Power & Light Co. (1984, DC Kan) 585 F Supp 1509, 39
BNA FEP Cas 1665, 26 BNA WH Cas 1355, 35 CCH EPD 34787, 35 CCH EPD
34874, 102 CCH LC 34595.
CCH EPD 7835.
775 Coaches of school sports

View Entire Section
Courts have been inconsistent in the manner in which they evaluate pay discrepancies
between male and female coaches of school sports. While one court has found the EPA
to be violated where a female softball coach for a women's team was paid less than a
male baseball coach for a men's team, 4 other courts have found that when disparities in
coaches' pay were not based on the sex of the employee, but on the sex of the students on
the team, it was not a violation of Title VII 5 as long as the pay of male and female
coaches of the women's team is equal. 6
Observation: If a plaintiff can demonstrate that females predominate as coaches of

women's sports and males predominately coach men's sports, a policy of paying more
based solely on the sex of the student participants could be demonstrated to have an
adverse impact on the lesser paid sex, 7 which must be justified by a valid business
motive.
However, other courts have found that schools which deny women an equal opportunity
for the increased compensation that flows from coaching the men's teams, without a bona
fide occupational qualification 8 to support that restriction, 9 or who actively
discourage women from applying for the higher paying coaching jobs, 10 are
committing sex discrimination in pay.
Footnotes
Footnote 4. Brennan v Woodbridge School Dist. (1974, DC Del) 9 BNA FEP Cas 969, 8
CCH EPD 9640, 74 CCH LC 33121.
Footnote 5. Kenneweg v Hampton Township School Dist. (1977, WD Pa) 438 F Supp
Footnote 6. Jackson v Armstrong School Dist. (1977, WD Pa) 430 F Supp 1050, 14 BNA
Footnote 7. 760.
Footnote 8. As to bona fide occupational qualifications, generally, see 269 et seq.
Footnote 9. Burkey v Marshall County Bd. of Education (1981, ND W Va) 513 F Supp
1084, 25 BNA FEP Cas 1229, 30 BNA FEP Cas 1855, 26 CCH EPD 31950.
34908.
776 Drivers and dispatchers

View Entire Section
An employer who paid a female bookmobile driver less than a male delivery truck driver
violated both Title VII and the EPA. In evaluating the EPA claim, the court noted that
the female actually operated the larger vehicle, which had a standard transmission, as
opposed to the male's vehicle which had an automatic transmission. Thus, the female
expended greater physical, mental, and visual effort while being paid less. The Title VII
claim was successfully presented by demonstrating a history of sexual segregation in
jobs, and derogatory sexual remarks and admissions that sex was a factor in the pay
difference. 11
However, a female dispatcher who was paid less than her male predecessor was not
unlawfully compensated, because the male's higher salary had been the result of a reward
for longevity when he became physically incapable of performing his previously higher
paid position. 12
Footnotes
Footnote 11. Lanegan-Grimm v Library Asso. of Portland (1983, DC Or) 560 F Supp
Footnote 12. Salazar v Marathon Oil Co. (1980, SD Tex) 502 F Supp 631, 24 BNA FEP
Cas 1167, 24 CCH EPD 31470, 90 CCH LC 33985.
777 EEO representatives

View Entire Section
EEO representatives have raised pay discrimination claims both under the equal work
standard and outside of that context. When a female EEO representative failed to
demonstrate the substantial equality of her work to that of four male comparison
employees, her EPA claim failed. 13
Another female EEO representative admittedly did unequal work to that of her male
predecessors, but alleged that her job was nevertheless paid proportionally less, based on
a factor of sex, under the comparable worth concept. Her Title VII intentional pay
discrimination claim failed when she could not present reliable evidence indicating the
relative worth of the jobs in issue to the employer. 14
Footnotes
Footnote 13. Jones v Flagship International (1986, CA5) 793 F2d 714, 41 BNA FEP Cas
358, 27 BNA WH Cas 1153, 40 CCH EPD 36392, cert den 479 US 1065, 93 L Ed 2d
Footnote 14. Plemer v Parsons-Gilbane (1983, CA5) 713 F2d 1127, 32 BNA FEP Cas
778 Factory workers

View Entire Section
Factory employers have been unable to justify male and female pay disparities with
respect to claims raised under the equal work standard based on:
the higher average cost of employing female production workers; 15
the additional duties required of the higher paying males, allegedly increasing their
"flexibility," when females had been performing those tasks prior to the division of the
duties under a labor agreement, 16 or when the additional duties at a glass factory were
only given to some of the male employees when they were idle, and consisted of lower
paying tasks which could not be proven to be of increased economic value to the
employer; 17
extra effort expended by male employees which amounted to only occasional or minor
greater physical exertion 18 such as occasional heavy lifting, or minor mechanical
adjustments to machines; 19
extra effort of male employees according to a classification system which divided the
jobs into "light" and "heavy" categories, when the males' occasional extra physical effort
was balanced by a corresponding extra mental effort by females needed to achieve their
higher production quotas. 20
Employers have been successful in justifying pay disparities between male and female
factory workers based on:
extra efforts expended by the male employees, including regular overtime requirements,
standing as opposed to sitting, the regular movement of heavy objects, and making
machine adjustments; 21
extra skill expended by cornice workers, additional physical effort expended by
installers, and the responsibility of dealing with the public required by male upholsteries,
all of which made their jobs dissimilar to that of a female seamstress; 22
the two month temporary assignment of a male camera man to a film assembly position,
during which time his former salary was "red circled". 23
Footnotes
Footnote 15. Wirtz v Midwest Mfg. Corp. (1968, SD Ill) 9 BNA FEP Cas 483, 1 CCH
EPD 9869, 58 CCH LC 32070.
Footnote 17. Shultz v Wheaton Glass Co. (1970, CA3) 421 F2d 259, 9 BNA FEP Cas
502, 9 BNA FEP Cas 508, 2 CCH EPD 10077, 61 CCH LC 32284, cert den 398 US
905, 26 L Ed 2d 64, 90 S Ct 1696, 9 BNA FEP Cas 1408, 2 CCH EPD 10151, 62 CCH
LC 32333.
Footnote 18. Wirtz v Meade Mfg., Inc. (1968, DC Kan) 285 F Supp 812, 1 CCH EPD
9769.
Footnote 19. Wirtz v Rainbo Baking Co. (1967, ED Ky) 303 F Supp 1049, 9 BNA FEP
Cas 477, 1 CCH EPD 9749, 54 CCH LC 31884.
grounds, (CA8) 445 F2d 823, 9 BNA FEP Cas 646, 3 CCH EPD 8289, 65 CCH LC
32528.
Footnote 21. Shultz v Kimberly-Clark Corp. (1970, WD Tenn) 315 F Supp 1323, 9 BNA
Footnote 22. Taylor v Franklin Drapery Co. (1977, WD Mo) 441 F Supp 279, 20 BNA
Footnote 23. Campbell v Von Hoffman Press, Inc. (1980, WD Mo) 483 F Supp 218, 22
BNA FEP Cas 452, 24 BNA WH Cas 581, 90 CCH LC 33979, affd (CA8) 632 F2d 69,
35 BNA FEP Cas 457, 24 BNA WH Cas 1058, 24 CCH EPD 31312.
779 Financial analysts

View Entire Section
An employer cannot pay a male financial analyst more than an female financial analyst
doing substantially equal work based on the mere expectation that the male will engender
greater financial profitability for the employer in the future. 24
Footnotes
Footnote 24. EEOC v Hay Associates (1982, ED Pa) 545 F Supp 1064, 29 BNA FEP Cas
780 Grocery store workers

View Entire Section
The EEOC concludes that male checkers who primarily stock heavy items may be doing
different but substantially equal work to that of female employee who arrange displays of
small items requiring greater dexterity. Thus, the agency would require the positions to
be paid equally based on the substantial equality of effort expended in both jobs. 25
Also, a grocery store that based its higher pay for male stocking duties, as opposed to
female checking duties, violated the EPA, because males who spent most of their work
time as checkers still received the higher pay. 26
Footnotes
Footnote 25. 29 CFR 1620.16(b).
Footnote 26. Hodgson v Schnuck (1971, ED Mo) 333 F Supp 798, 9 BNA FEP Cas 694,
4 CCH EPD 7621, 67 CCH LC 32603.
781 Inspectors
View Entire Section
Under the equal work standard, male and female product inspectors doing substantially
equal work must be provided equal pay. 27
However, when jobs are legitimately
differentiated by an increased skill requirement, as demonstrated by the 3,000 hours of
training needed for an Inspection Assistant to move to a General Inspector, different rates
of compensation for the respective positions is appropriate. 28
Footnotes
Footnote 28. Tuma v American Can Co. (1974, DC NJ) 373 F Supp 218, 7 BNA FEP Cas
851, 9 BNA FEP Cas 917, 85 BNA LRRM 3005, 7 CCH EPD 9272, 74 CCH LC
33067.
782 Janitors and custodial personnel

View Entire Section
Equal Pay Act claims involving janitors and custodial personnel are usually raised by
female employees under the equal work standard, alleging that the different or additional
duties performed by higher paid male counterparts are substantially equal and require no
greater effort than their jobs. Female employees have been successful in such claims
when the extra duties of the male custodians were only performed by some of those
individuals, while all received a higher wage, 29 and when the extra duties took only
minutes per day or week, 30 or only occurred from two to four times per year. 31
Similarly, female employees have persuaded courts that the total effort expended is
substantially equal by equating the buffing and scrubbing of floors with the scrubbing of
furniture, 32 and equating snow and garbage removal, stripping floors, and filling soda
machines, with cleaning sinks, toilets, and mattresses, and stripping and making beds. 33
However, employers have legitimately differentiated the pay of female and male
custodians when work outside of their mutual responsibilities was only performed by
females 1% of their work time, while males spent 36% to 43% of their time on such
tasks. 34 Furthermore, extra effort justified paying "heavy" cleaners more than "light"
cleaners who were all women, when the predominately male cleaners had to expand more
physical effort on a regular basis due to their additional responsibilities involving the
hauling of heavy cleaning materials and machinery. 35 Similarly, an employer could
pay male carpet cleaners more than female household cleaners when the additional duties
of the latter group included not only operating heavy machinery, but also involved the
responsibility of handling sales to customers. 36
The EEOC takes the position that extra duties performed by male custodians only during
the summer months for a school employer do not justify a year- long wage differential
between those employees and female custodians. 37 However, prior to the EEOC's
pronouncement, the Fifth Circuit determined that a school system had the discretion to
decide the manner in which it provided extra compensation for extra work. Therefore, it
did not have to equalize male and female custodial pay during the school year when only
males were employed during the three summer months when school was not in session.
38
While female custodians did not perform equal work compared to male maintenance
workers, when they temporarily substituted for absent male workers they were entitled to
the higher pay of that position during that time period. 39
Footnotes
Footnote 29. Brennan v Board of Education (1974, DC NJ) 374 F Supp 817, 9 BNA FEP
Cas 951, 8 CCH EPD 9545, 75 CCH LC 33131.
Footnote 30. Hodgson v Montana State Bd. of Education (1972, DC Mont) 336 F Supp
Footnote 31. EEOC v Rhode Island (1982, DC RI) 549 F Supp 60, 32 BNA FEP Cas
1734, 26 BNA WH Cas 737, 30 CCH EPD 33003, 95 CCH LC 34254, affd without
op (CA1) 720 F2d 658, 33 BNA FEP Cas 1520, 27 BNA WH Cas 256.
Footnote 32. Brennan v Board of Education (1974, DC NJ) 374 F Supp 817, 9 BNA FEP
Cas 951, 8 CCH EPD 9545, 75 CCH LC 33131.
Footnote 34. EEOC v Kenosha Unified School Dist. (1980, CA7) 620 F2d 1220, 22 BNA
Footnote 35. Marshall v Building Maintenance Corp. (1978, CA2) 587 F2d 567, 18 BNA
FEP Cas 892, 18 CCH EPD 8680, 84 CCH LC 33727; EEOC v Mercy Hospital &
Medical Center (1983, CA7) 709 F2d 1195, 32 BNA FEP Cas 991, 26 BNA WH Cas
539, 32 CCH EPD 33665, 97 CCH LC 34398.
Footnote 36. Crockwell v Blackmon-Mooring Steamatic, Inc. (1985, WD Tenn) 627 F
Supp 800, 43 BNA FEP Cas 1451, 28 BNA WH Cas 117, 40 CCH EPD 36411.
Footnote 37. 29 CFR 1620.24.
Footnote 38. Marshall v Dallas Independent School Dist. (1979, CA5) 605 F2d 191,
21BNA FEP Cas 143, 24 BNA WH Cas 347, 21 CCH EPD 30334, 87 CCH LC
33860.
Footnote 39. Marshall v School Bd. (1979, CA3) 599 F2d 1220, 19 BNA FEP Cas 1612,
783 Library workers

View Entire Section
Title VII was violated when male and female library assistants were paid unequally,
despite the fact that only males performed "lifting tasks" involving extra effort, when
such tasks only occupied 10% of their time, and were a result of the employer's
stereotypical assumptions about the undesirability of such tasks for female workers. 40
Footnotes
Footnote 40. EEOC Decision No. CH 68-2-539E (1969), 2 BNA FEP Cas 539, CCH
EEOC Dec 6126.
784 Machine operators

View Entire Section
The EEOC takes the position that merely operating different machines and equipment,
alone, is not a basis upon which an employer may justify different pay due to unequal
work. 41 However, male and female machine operators could be paid differently when
only the males were responsible for the skilled task of complex machine setups. 42
An employer could not justify the pay differential between male and female press
operators under its job classification system, when the system proved arbitrary in relation
to the actual work assignments of the positions. 43
Footnotes
Footnote 41. 29 CFR 1620.14(c).
Footnote 42. EEOC Decision No. 71-1545 (1971), CCH EEOC Decisions 6261, 3 BNA
FEP Cas 761.
Footnote 43. Shultz v Hayes Industries, Inc. (1970, ND Ohio) 9 BNA FEP Cas 529, 2
CCH EPD 10150, 62 CCH LC 32327.
785 Managers and supervisors; claims under the equal work standard
View Entire Section
Under the equal work standard, male and female managers and supervisors must be paid
equally if the duties involved in the respective jobs are substantially equal. Since job
content, not job titles, controls such determinations, a female supervisor who actually
exercised no supervisory authority, despite her title, could be paid less than a male
supervisor who did exercise such responsibility. 44
Increased responsibility will justify a higher salary for the better paid job, such as when
male managers, but not female managers, trained new personnel, did banking in the
evenings, and interviewed job applicants. 45 However, infrequent additional duties will
not explain a pay differential, so that male and female data processing supervisors should
have received equal pay despite the fact that males participated in sale shows two or three
times per year, and spent an insignificant amount of time taking telephone orders.
Furthermore, another male supervisor was not legitimately paid more because he drove a
delivery truck on weekends, since that task was normally performed by workers being
paid a lower wage. 46
The additional skill needed to perform a higher paying job can also justify pay
differentials challenged under the equal work standard. Thus, employers could lawfully
pay females less than males who held supervisory or management positions when:
the male manager's significantly greater experience and skill enabled him to develop the
business that the female later supervised; 47
a female who supervised building maintenance, kept financial records, and ordered
supplies, exercised considerably less discretion and skilled judgment than did male
department heads who underwrote insurance policies and approved claims. 48
Since the equality of work addressed in the equal work standard may be based on
comparisons of predecessors and successors, the EPA was violated when a female
supervisor, although paid slightly more than her immediate predecessor, was unlawfully
paid less than one of the two previous male predecessors in the same position, despite her
greater relevant experience. However, she was not entitled to the same pay as one of the
previous male predecessors who, unlike her, spent considerable time developing and
implementing a new computer system. 49
Under the EPA, an employer may also increase pay based on an employee's potential
contribution to the business. Thus, a male underwriter was lawfully paid more than a
female underwriter since he had supervisory and management potential based on his
experience in a specific area of insurance into which the employer intended to expand.
Such potential was demonstrated by the fact of his eventual promotion to a supervisory
position within one year of being hired. 50 Likewise, a male fast food manager with
greater experience in the same chain of businesses at another location could lawfully be
paid more than a female manager, although she was entitled to the greater pay another
male manager was making, allegedly based on his greater formal education, when that
education was not demonstrably job related, nor clearly of more economic value to the
employer. 51
Other reasons have also been asserted by employers defending claims raised under the
equal work standard involving male and female managers and supervisors. For example,
a retail store could pay its male department heads more than its female department heads
based on the males' higher annual sales volume and higher profits attributable to their
work. 52 Also, female sales supervisors were legitimately paid less than male premises
managers since the males, but not the females, had to travel up to one half of their work
time, which required overnight absences, and correspondingly made their working
conditions different. 53
However, a market rate defense was insufficient to explain the difference between male
and female account managers, when an employer merely assumed that the male would
not accept a pay cut to work for the company, and offered him a higher salary than his
female counterpart without attempting negotiation. 54
Footnotes
Footnote 44. Polson v Davis (1986, DC Kan) 635 F Supp 1130, 51 BNA FEP Cas 307,
affd (CA10) 895 F2d 705, 52 BNA FEP Cas 44, 5 BNA IER Cas 369, 52 CCH EPD
39604.
Footnote 45. Brennan v Sears, Roebuck & Co. (1976, DC Iowa) 410 F Supp 84, 12 BNA
Footnote 47. Calage v University of Tennessee (1975, ED Tenn) 400 F Supp 32, 13 BNA
12 CCH EPD 11236.
Footnote 48. Orr v Frank R. MacNeill & Son, Inc. (1975, CA5) 511 F2d 166, 10 BNA
Footnote 49. Clymore v Far-Mar- Co., Inc. (1983, CA8) 709 F2d 499, 42 BNA FEP Cas
439, 32 CCH EPD 33671, 97 CCH LC 34391.
Footnote 51. Bullock v Pizza Hut, Inc. (1977, MD La) 429 F Supp 424, 26 BNA FEP Cas
313, 14 CCH EPD 7608, 81 CCH LC 33530.
Footnote 52. Wirtz v Muskogee Jones Store Co. (1968, ED Okla) 293 F Supp 1034, 1
CCH EPD 9875.
Footnote 53. Chapman v Pacific Tel. & Tel. Co. (1978, ND Cal) 456 F Supp 65.
Footnote 54. Schulte v Wilson Industries, Inc. (1982, SD Tex) 547 F Supp 324, 31 BNA
786 Managers and supervisors; other wage and salary claims

View Entire Section
Male and female managers and supervisors may be unlawfully compensated based on sex
even when they do not do substantially equal work, if intentional discrimination
prohibited by Title VII is demonstrated. For example, the statute was violated when the
only two female managers were paid less than all of the male managers, and the employer
could offer no explanation for the difference in salaries. 55 Likewise, when there was no
objective criteria on which to base the salary increases which an insurance company gave
to employees upon being promoted to policy writing supervisors, a sexually
discriminatory intent was demonstrated by the fact that females received lesser pay
increases than males upon being promoted. Furthermore, subsequent higher raises for
female supervisors did not adequately address the disparity the victim suffered by
beginning from a lower starting salary. 56
However, a statistical claim of pay discrimination was not demonstrated by female
department heads who could only present a de minimis difference in their annualized
salaries from that of two similar male department heads. 57
Footnotes
Footnote 55. Roesel v Joliet Wrought Washer Co. (1979, CA7) 596 F2d 183, 19 BNA
Footnote 56. Marshall v Sinor (1978, ND Okla) 84 CCH LC 33691.

Footnote 57. Sparrow v Piedmont Health Systems Agency, Inc. (1984, MD NC) 593 F
For a discussion of when statistical differences become legally sufficient to raise an
inference of intentional discrimination, see the burden of proof discussion at 2699 et
seq.
787 Nurses
View Entire Section
Female nurses have contested their pay rates under both the equal work standard and the
concept of comparable worth. Female "nurse practitioners" were unable to demonstrate
that their jobs involved substantially equal work to that of male "physician assistants"
who were paid more, since the male employees not only provided identical treatment of
identical problems in many instances, but additionally were expected to demonstrate
greater expertise in unusual cases, required to take "night call" on a rotation basis, and to
exercise front line responsibility for managing trauma cases, duties the female nurses
were insufficiently trained to assume. 58
Employers were found to have lawfully imposed pay differentials based on the market
rate in defeating comparable worth claims alleging:
the market rate for nurses suffered from historical sex discrimination, which devalued
the wages of those jobs because they were predominantly held by women; 59
sex discrimination in paying less for female nurse responsibilities which required more
knowledge, skill, and accountability than higher paying chemist positions held by males.
60
Footnotes
Footnote 58. Beall v Curtis (1985, MD Ga) 603 F Supp 1563, 37 BNA FEP Cas 644, 27
BNA WH Cas 166, 37 CCH EPD 35267, 105 CCH LC 34817, affd without op
(CA11) 778 F2d 791, 40 BNA FEP Cas 984, 29 BNA WH Cas 608, 39 CCH EPD
35885.
Footnote 59. Lemons v Denver (1980, CA10) 620 F2d 228, 22 BNA FEP Cas 959, 22
Cas 1668, 24 CCH EPD 31256.
788 Nurses' aides and orderlies

View Entire Section
Hospitals, nursing homes, and convalescent centers, have sometimes encountered
predominantly female nurses aides pay discrimination claims which compare their duties
to that of predominantly or exclusively male orderlies under the equal work standard.
Most of such claims have been defended by employers asserting that higher pay for the
orderlies was based on additional duties which only they performed. Such defenses have
been successful when only orderlies:
performed such procedures as cystoscopy, catheterization, bladder decompression,
bivalving, removal of casts, and surgical preparation; 61
assisted in security for alcoholic and psychiatric patients, applied traction devices,
performed catheterizations, engaged in emergency room procedures on night shifts and
weekends, and according to expert studies had only one half as much nonactive or
nonproductive work time; 62
performed catheterizations, irrigations, traction setups, and drove vehicles to pick up
patients; 63
performed security duties involving often violent and unpredictable psychiatric patients.
64
The extra duties defense to claims under the equal work standard raised by nurses aides
comparing their jobs with exclusively or predominantly male orderlies were successful
despite the employer's claims of additional duties justifying a higher pay, when:
no significant additional duties actually existed, 65 including security duties that only
appeared under a job description, but were not in fact carried out; 66
only a minimal amount of time was spent performing the extra duties; 67
the extra duties were limited to lower paid manual labor tasks; 68
although only the orderlies performed catheterizations on male patients,
correspondingly, only female nurses' aides worked on female patients. 69
Employers invoking the defense that orderlies are paid more than nurses aides due to the
increased responsibility of their positions have been successful when orderlies had
facility-wide responsibilities and nurses' aides had only been assigned to particular units,
floors, rooms, or patients. 70 Employers have not been able to justify pay differentials
for these positions based on increased pay for orderlies involved in a training program
when females did not participate in such training, 71 or based on dissimilar working
conditions when both orderlies who did or did not work in the undesirable locations were
paid more than the nurses aides. 72
Footnotes
Footnote 61. Secretary of Labor, U.S. Dept. of Labor v Washington Hospital (1979, WD
Pa) 475 F Supp 1242, 22 BNA FEP Cas 247, 24 BNA WH Cas 616, affd without op
Footnote 62. Hodgson v Good Shepherd Hospital (1971, ED Tex) 327 F Supp 143, 9
Footnote 63. Hodgson v Golden Isles Convalescent Homes, Inc. (1972, CA5) 468 F2d
Footnote 64. Shultz v Kentucky Baptist Hospital (1969, WD Ky) 9 BNA FEP Cas 508, 2
CCH EPD 10148, 62 CCH LC 32296.
2d 652, 95 S Ct 1392, 11 BNA FEP Cas 576, 9 CCH EPD 10032; Eakin v Ascension
Parish Police Jury (1974, La) 294 So 2d 527, 9 BNA FEP Cas 938, 7 CCH EPD 9366,
74 CCH LC 33069;
Footnote 67. Hodgson v Oil City Hospital, Inc. (1972, WD Pa) 363 F Supp 419, 9 BNA
Footnote 68. Hodgson v Maison Miramon, Inc (1972, ED La) 344 F Supp 843, 9 BNA
2d 652, 95 S Ct 1392, 11 BNA FEP Cas 576, 9 CCH EPD 10032; Eakin v Ascension
Parish Police Jury (1974, La) 294 So 2d 527, 9 BNA FEP Cas 938, 7 CCH EPD 9366,
74 CCH LC 33069.
Footnote 70. Hodgson v Golden Isles Convalescent Homes, Inc. (1972, CA5) 468 F2d
Footnote 71. Odomes v Nucare, Inc. (1981, CA6) 653 F2d 246, 26 BNA FEP Cas 317, 24
Footnote 72. Hodgson v Brookhaven General Hospital (1970, CA5) 436 F2d 719, 9 BNA
789 Pharmacists
View Entire Section

Go to Supplement
Under the equal work standard, male and female pharmacists must be paid equally for
performing substantially equal work. An employer cannot justify paying the male more
for additional duties that only consist of a sporadic need to take emergency night calls. 73
789 ----Pharmacists [SUPPLEMENT]
Practice Aids: What Can You Say, Where Can You Say I and To Whom? A Guide To
Understanding and Preventing Unlawful Sexual Harassment, Larson, 1992 Cre LR P
827 (May 1992).
Proving Title VII Sexual Harassment: The courts' View, Greenlaw and Kohl, 43 Lab LJ
No. 3 P 164 (March, 1992).
Sexual Harassment In The Workplace: The Continuing Quest For The Reasonable
Woman Standard, Am J Trial Ad 15:2 P 415 (Winter 1991-92).
Footnotes
Footnote 73. Pedreyra v Cornell Prescription Pharmacies, Inc. (1979, DC Colo) 465 F
Supp 936, 21 BNA FEP Cas 1207, 19 CCH EPD 9009, 86 CCH LC 33779.
790 Radio and television performers

View Entire Section
Go to Supplement
Under the EPA, male and female radio 74 and television 75 broadcasters may be paid
differently if the increased pay is based on the employee's superior broadcast experience.
However, this defense must include a demonstration that the employer will receive a
greater economic benefit as a result of the experience. Therefore, it was unlawful to pay
a male more than a female radio talk show host on the assumption that the male's greater
experience in jobs with public contact, and his more conservative politics, would
generate more endorsements, and, correspondingly, more revenue for the station. 76
A female news director at a radio station unsuccessfully alleged intentional sex
discrimination under Title VII based on her 9.4% lower pay than male disc jockeys. The
station legitimately paid the disc jockeys more since it was known for music and news
was only a supplemental service, more advertising revenue was generated by the disc
jockeys, and the fact that news directors at other stations received higher pay than the
female plaintiff did not raise an inference of sex discrimination because they, unlike her,
supervised a staff. 77
790 ----Radio and television performers [SUPPLEMENT]
Practice Aids: Of Supervision, Centerfolds, and Censorship: Sexual Harassment, The
First Amendment, and The Contours of Title VII, Horton, 46 U Miami LR No. 2 P 403
(Nov 1991).
Footnotes
Footnote 74. EEOC v New York Times Broadcasting Service, Inc. (1976, CA6) 542 F2d
Footnote 75. Craft v Metromedia, Inc. (1983, WD Mo) 572 F Supp 868, 33 BNA FEP
Cas 153, 32 CCH EPD 33865, affd in part and revd in part on other grounds, (CA8) 766
F2d 1205, 38 BNA FEP Cas 404, 27 BNA WH Cas 353, 37 CCH EPD 35335, 103
CCH LC 34691, cert den 475 US 1058, 89 L Ed 2d 592, 106 S Ct 1285, 40 BNA FEP
Cas 272, 39 CCH EPD 35925.
Footnote 76. Futran v Ring Radio Co. (1980, ND Ga) 501 F Supp 734, 24 BNA FEP Cas
776, 24 BNA WH Cas 1107, 24 CCH EPD 31410.
Footnote 77. Musser v Mountain View Broadcasting, Inc. (1984, ED Tenn) 36 CCH EPD
35191.
791 Restaurant cooks

View Entire Section
A restaurant lawfully paid a male cook more than a female cook because the male's job
entailed greater responsibility, since only he performed all heavy lifting, was assigned to
the most demanding shifts involving the most expensive meals, had to train new
employees, and could recommend disciplinary action to the employer. 78
Footnotes
Footnote 78. Usery v Richman (1977, CA8) 558 F2d 1318, 20 BNA FEP Cas 807, 14
CCH EPD 7689, 82 CCH LC 33551.
792 Salespersons
View Entire Section

Male and female salespersons must be paid at the same rate if all of their jobs are
substantially equal, and the fact that they may be engaged in selling different products
does not, alone, justify sexual pay disparities under the EPA. 79 Therefore, females who
sold spa memberships exclusively to women could not be paid less commission per sale
than men who sold such memberships exclusively to men, despite the employer's
contention that since sales to women were more frequent all employees would receive
approximately the same total amount of commissions. 80
However, wages or commissions to salespersons may differ on the basis of greater skill
needed for the higher paying position. For example, male clothing salespersons could
receive a higher commission than their female counterparts when only the males' jobs
required the skills needed to pin up and mark garments for alterations. 81 Where all
salespersons are responsible for making and fitting garments, higher pay to the males
violates the EPA. 82 Similarly, if the higher paying sales job requires more
responsibility, such as the exclusive authority to authorize or accept personal checks,
wage differences are justified. 83
Sexual differences in payment to salespersons may also be justified by the employer
under the statutory defense of a "factor other than sex". For instance, males who sold
only males' clothing were legitimately paid more than females who sold only women's
clothing and performed the same duties, when the employer demonstrated the higher
profitability of the men's department. It was unnecessary for the employer to
demonstrate individual profitability for each employee, since the EPA did not abrogate
the employer's reasonable business discretion to pay employees on a straight commission
or any other basis it desired. 84 However, paying male salespersons more than their
female counterparts based on the males' potential for increased profitability will not be
justified when such potential is only a subjective evaluation unsupported by other
evidence, 85 or when males are compensated based on their experience with the
merchandise, but no comparable effort is made to provide additional compensation to
females with similar experience. 86 Also, while an employer may increase the pay of
male trainees engaged in a bona fide, nondiscriminatory training program to a level
above their female counterparts who are not in training, 87 the pay differential will not
be justified absent evidence of a formalized training program open to female employees
as well. 88
Male and female salespersons may be paid differently in accordance with a neutral
evaluation and classification system, such as a system which increases wages
corresponding to the customer assistance required to sell the merchandise. However, that
justification will not amount to a "factor other than sex" defense if it is applied on a
sexually discriminatory basis at a particular store to certain individuals. 89
Footnotes
Footnote 79. 29 CFR 1620.14(c).
Footnote 80. Bence v Detroit Health Corp. (1983, CA6) 712 F2d 1024, 32 BNA FEP Cas
434, 26 BNA WH Cas 452, 32 CCH EPD 33726, 98 CCH LC 34419, cert den 465
US 1025, 79 L Ed 2d 685, 104 S Ct 1282, 33 BNA FEP Cas 1884, 26 BNA WH Cas
1078, 33 CCH EPD 34156, 100 CCH LC 34501.
Footnote 81. Brennan v Cain- Sloan Co. (1974, CA6) 502 F2d 200, 9 BNA FEP Cas 964,
8 CCH EPD 9629, 74 CCH LC 33126.
Footnote 82. Brennan v City Stores, Inc. (1973, CA5) 479 F2d 235, 9 BNA FEP Cas 846,
5 CCH EPD 8634, 71 CCH LC 32910.
Footnote 83. 29 CFR 1620.17(b)(2).
Footnote 84. Hodgson v Robert Hall Clothes, Inc. (1973, CA3) 473 F2d 589, 11 BNA
2d 85, 94 S Ct 50, 11 BNA FEP Cas 1310, 6 CCH EPD 8861, 72 CCH LC 32962.
Footnote 85. Keziah v W.M. Brown & Son, Inc. (1989, CA4) 888 F2d 322, 51 BNA FEP
Footnote 88. Usery v Johnson (1977, DC ND) 436 F Supp 35, 20 BNA FEP Cas 1036, 14
CCH EPD 7644, 81 CCH LC 33524.
Footnote 89. Marshall v J. C. Penney Co. (1979, ND Ohio) 464 F Supp 1166, 22 BNA
793 Social workers

View Entire Section
An employer did not violate the EPA or Title VII by paying female psychiatric social
workers less than a male psychologist, since the latter position required more
professional training, experience, and commanded a higher market value. Furthermore,
since approximately one third of each job was performed by members of the opposite
sex, and males and females were paid equally in each position, no inference of a
discriminatory intent was permissible. 90
Footnotes
Footnote 90. Schulte v New York (1981, ED NY) 533 F Supp 31, 37 BNA FEP Cas
1438, 25 BNA WH Cas 202, 93 CCH LC 34163.
794 Stockroom workers

View Entire Section
Male and female stockroom workers can be paid at unequal rates without violating the
EPA, if the higher paying job entails greater responsibility, such as when the higher paid
males were responsible for delivery and receipt of goods on a facility-wide basis, while
the females were responsible for that task in only one department of the facility. 91
Footnotes
Footnote 91. Christopher v Iowa (1977, CA8) 559 F2d 1135, 20 BNA FEP Cas 829, 14
CCH EPD 7753, 82 CCH LC 33555.
795 Teachers; claims under the equal work standard

View Entire Section
Under the EPA, male and female teachers must be paid at the same rate if they are
performing jobs that are substantially equal, and pay disparities between the sexes will
not be justified at the entry level positions if the jobs are uniform with respect to the
teaching, research, and service requirements within each department. 92 Furthermore,
since the jobs are being evaluated for equality based on the duties performed, not job
descriptions, even unassigned work performed by the lesser paid employee will be
considered under the equal work standard, if such work is performed with the knowledge
and acquiescence of school officials. 93
Pay discrimination claims by teachers under the equal work standard may be defended on
the basis that pay disparities are justified because of a "factor other than sex". For
example, wage differences may be justified based on merit, such as when a tenured
female professor who excelled at teaching was paid less than a tenured male professor,
since her research and service, a quality the university considered to be of more
importance than teaching, declined after she obtained tenure. 94 Likewise, the market
rate set for the higher paying jobs may constitute a factor other than sex for disparity in
teacher pay. For instance, professors could be paid differently on the basis of sex when
the university established that newly hired males in certain fields needed to be offered
higher starting salaries because of the high demand for, and low supply of, such
educators. 95 And a male physical education instructor could be paid at a higher rate
than his female counterpart not only because of his higher value in the market place, but
also because his job required the greater responsibility of developing and implementing a
curriculum, while the female only taught courses selected by other individuals. Thus, the
employer further established that the jobs did not satisfy the equal work standard. 96
Footnotes
BNA FEP Cas 3, 39 CCH EPD 35891; Lamb v Rantoul (1981, DC RI) 538 F Supp 34,
32 BNA FEP Cas 1016, 26 BNA WH Cas 543; Ottaviani v State University of New York
(1988, SD NY) 679 F Supp 288, 50 BNA FEP Cas 251, 28 BNA WH Cas 739, 45 CCH
EPD 37720, 108 CCH LC 35032, affd (CA2) 875 F2d 365, 51 BNA FEP Cas 330, 50
1224, 52 CCH EPD 39540.
Footnote 93. Katz v School Dist. (1977, CA8) 557 F2d 153, 18 BNA FEP Cas 726, 14
CCH EPD 7650, 82 CCH LC 33547.
Footnote 94. Fenrick v Wichita State University (1988, DC Kan) 1988 US Dist LEXIS
13901.
Footnote 95. Fenrick v Wichita State University (1988, DC Kan) 1988 US Dist LEXIS
13901.
796 Teachers; other wage and salary claims not raised under the equal work
standard
View Entire Section
Teachers have frequently attempted to raise claims of intentional sex discrimination in
pay under Title VII concerning jobs that do not fall under the equal work standard, by use
of statistical evidence. Such claims have been unsuccessful, due to the fact that the lower
paid female teachers' statistical multiple regression analysis failed to eliminate other
factors, besides sex, which could affect pay disparities. Such other factors include
longevity, experience, availability, 97 educational and professional achievement, 98
and economic or market factors which strongly affected the pay for varying disciplines
being taught among the different colleges or departments in a university. 99
(P)Furthermore, statistical evidence of sexual disparities in teachers' salaries may also
fail to prove a Title VII violation when the statistical difference is too insubstantial to
raise an inference of sexual discrimination. 1
Footnotes
Footnote 97. Sweeney v Board of Trustees (1979, CA1 NH) 604 F2d 106, 20 BNA FEP
Cas 759, 20 CCH EPD 30221, cert den Board of Trustees v Sweeney (1980) 444 US
Footnote 98. Merrill v Southern Methodist University (1986, CA5) 806 F2d 600, 42
Footnote 99. MacPherson v University of Montevallo (1991, CA11) 922 F2d 766, 55
Footnote 1. Coser v Moore (1984, CA2) 739 F2d 746, 40 BNA FEP Cas 195, 34 CCH
EPD 34511.
797 Telecommunications workers

View Entire Section
Under the equal work standard, male and female telecommunications workers must be
paid at the same wage rate if their jobs are substantially equal, and that determination is
based on the duties required in the respective positions. Thus, job equality was not
demonstrated by a female employee who attempted to compare salary histories with
males at the same salary level in a diverse series of occupational categories at a telephone
company. 2 Even if jobs are substantially equal, an employer may pay the higher wage
based on a seniority system, including departmental based seniority, as opposed to total
seniority with the company. 3
However, when male and female telecommunications workers are performing equal
work, the EPA requires the elimination of pay disparities, and the employer cannot claim
that additional duties for the higher paying job justify pay disparities if not all of the
higher paying positions perform those additional duties. 4
Footnotes
Footnote 2. Stastny v Southern Bell Tel. & Tel. Co. (1980, CA4) 628 F2d 267, 23 BNA
Footnote 3. Wood v Southwestern Bell Tel. Co. (1981, CA8) 637 F2d 1188, 26 BNA
Footnote 4. EEOC Decision No. 71-2040 (1971) CCH EEOC Decisions 6275, 3 BNA
FEP Cas 1101.
798 Travel agents

View Entire Section

Under the equal work standard, male and female travel agents may be paid differently if
the higher paying job involves greater responsibility. Thus, a male travel counselor could
be paid more than his female counterpart when only he was responsible for title transfers
and automobile and drivers' licenses. 5
Footnotes
Footnote 5. Wirtz v Oregon State Motor Asso. (1968, DC Or) 57 CCH LC 32010.
799 Warehouse workers

View Entire Section
Under the equal work standard, male and female warehouse workers must be paid at an
equal rate if their jobs are substantially equal. Thus, an employer who was unable to
explain why a female foreman at a warehouse received less pay than both her male
predecessor and her male successor, could not show that a "factor other than sex" was the
reason for the difference. 6 Likewise, warehouse employers failed to justify sexual
disparities in wages on the grounds that the jobs were not equal, despite the contention
that the higher paid male rate was due to greater:
effort, because the occasional heavy lifting was so infrequent that one male did it only
once per year, and another male never performed that task; 7
responsibility, because the male's additional duty involving checking shipments of
narcotics only required the preparation of a few extra forms. 8
Footnotes
Footnote 6. Taylor v Philips Industries, Inc. (1979, CA7 Ind) 593 F2d 783, 19 BNA FEP
Cas 177, 19 CCH EPD 8987.
Footnote 7. Hodgson v Rack Service, Inc. (1974, ED Pa) 9 BNA FEP Cas 942, 7 CCH
EPD 9374, 74 CCH LC 33075, affd without op (CA3) 510 F2d 969, 11 BNA FEP Cas
1308, 77 CCH LC 33278.
800 Writers and editors

View Entire Section
Under the equal work standard, male and female writers and editors must be paid equally
if the jobs they perform are substantially equal. The jobs will not be found substantially
equal if the higher paying job requires greater responsibility, such as when the male's
non-writing duties included systems analysis, computer programming, and data
preparation, while the female editor's non-writing duties were all of a clerical nature. 9
Likewise, greater skill may justify paying one writer more than another, but only if the
skill relates to the job duties. Therefore, a male writer could not be paid more because he
had photographic skills the female writer lacked, when such skills were not required or
utilized in the performance of his job. 10
Employers of writers may successfully defend sexual disparities in pay if the differences
are the result of a "factor other than sex". For example, it was not unlawful for a male
editor to be receiving more pay than a female editor, when the employer had reduced him
from a higher paying rank, without loss of pay, as a disciplinary measure. 11
Footnotes
Footnote 9. Ammons v Zia Co. (1971, CA10) 448 F2d 117, 3 BNA FEP Cas 910, 3 CCH
EPD 8329.
Footnote 10. Di Salvo v Chamber of Commerce (1976, WD Mo) 416 F Supp 844, 13
BNA FEP Cas 636, 13 CCH EPD 11378, affd in part and mod in part on other grounds
LRRM 1764.
2. Fringe Benefits, In General [801-808]
a. Scope of Protection [801-805]
801 Laws regulating discriminatory fringe benefits

View Entire Section
Employers' fringe benefits policies and practices are controlled by those federal and state
laws 12 prohibiting discrimination in compensation and other terms, conditions, and
privileges of employment.
These federal laws include:
Title VII of the Civil Rights Act of 1964 ("Title VII") (race, color, religion, sex, and
national origin); 13
the Equal Pay Act ("EPA") (sex); 14
the Age Discrimination in Employment Act ("ADEA") (age); 15
Executive Order 11246 (race, color, religion, sex, and national origin in work on federal
contracts); 16
the Vietnam Era Veterans' Readjustment Assistance Act of 1974 ("Veterans' Act")
(discrimination against special disabled veterans and veterans of the Vietnam era by
federal contractors); 17
Title VI of the Civil Rights Act of 1964 (race, color, or national origin, in programs and
activities receiving federal financial assistance); 18
the Rehabilitation Act of 1973 ("Rehabilitation Act") (handicapped, in federally assisted
programs or activities); 19
the Americans with Disabilities Act ("ADA") (disability). 20
Recommendation: Parties in matters involving one type of fringe benefit

discrimination should examine precedents established for other types of discrimination
that may be relevant by analogy. 21
Caution: Just because a particular type of claim has not yet been raised with respect
to a particular type of benefitfor example, national origin discrimination with respect
to insurance plansdoes not mean that such a claim cannot arise in the future.
Employers may be held liable on new types of claims if they violate the general
principles discussed in the following sections.
Footnotes
Footnote 12.
State Aspects Many state EEO laws contain provisions regulating discrimination in
fringe benefits. In addition, even if a particular state law has no specific benefit
provisions, it still may prohibit discrimination in fringe benefits if it purports to cover
all terms and conditions of employment. The subject matter of the state laws may
compliment or conflict with similar provisions of federal law. In such situations,
preemption must be considered. A general discussion of these state laws appears in
Employment Coordinator EP-20,415 et seq. For a discussion of fringe benefits
discrimination prohibitions in job discrimination laws (including laws of limited
applicability to particular private employers, and laws which only regulate public
employers), state constitutions, and executive orders, as wll as the regulations, judicial
interpretations, and attorney general opinions pertaining to those prohibitions, see
Employment Discrimination Coordinator 80,000 et seq.
Footnote 13. 802.
Footnote 14. 803.
Footnote 15. 802.
Footnote 16. 804.
Footnote 20. 42 USCS 12112(a), discussed at 802.
Law Reviews: Hoffman; Katz, Discrimination litigation relating to employee benefits.
43 Lab. L.J. 362 (1992).
Footnote 21. The governing principles contained in, or developed by courts or agencies
under federal job discrimination laws, as they apply generally to the subject of employee
benefits, are discussed in 802 et seq. The effect of the federal laws on a particular
benefit is treated within the discussion of that benefit at discussed in 809 et seq.
The unique aspects of applying the benefits standards under the job discrimination
statutes with respect to the Pregnancy Discrimination Act (PDA) is discussed at 809
et seq. Application to the benefit plan exception to the ADEA is discussed at 814 et
seq. Exceptions in federal laws which apply to all terms and conditions of employment,
and which may also apply to fringe benefit discrimination claims, are discussed at
268 et seq.
802 What are fringe benefits under Title VII, the ADEA, and the ADA
View Entire Section
Title VII 22 the ADEA 23 and the ADA 24 prohibit discrimination with respect to
"compensation, terms, conditions or privileges of employment." The Supreme Court, in a
Title VII case, held that employee fringe benefits are part of the terms, conditions, or
privileges of employment. 25
Based on the EEOC's sex discrimination guidelines
under Title VII, these employee fringe benefits include medical, hospital, accident, life
insurance, and retirement benefits, profit-sharing and bonus plans, leave, and other
"terms, conditions, and privileges of employment." 26
Fringe benefit coverage under Title VII is not limited to benefits established under an
employment contract. For example, the right to be considered for staff privileges at a
hospital was a fringe benefit of being employed as a surgical resident and could not be
provided in a discriminatory manner, despite the fact that it was not a contractual right.
As a resident, the plaintiff was a hospital employee, and every resident in the history of
the hospital was allowed to apply for staff privileges upon completing residency. 27
Furthermore, fringe benefits accruing only after termination of the employment
relationship are also covered by Title VII. For example, a member of a law firm was
entitled to equal consideration as a potential partner, despite the fact that, once
partnership was granted, the individual's status might change from employee to employer.
28
The Supreme Court has also held that interpretations of Title VII with respect to the
definition of "privileges of employment" apply with equal force to the ADEA. 29
In
some cases, benefits may be covered under the ADEA as "compensation." 30
Footnotes
Fringe benefit protections against discrimination for older workers under the ADEA are
Footnote 25. Newport News Shipbuilding & Dry Dock Co. v EEOC (1983) 462 US 669,
77 L Ed 2d 89, 103 S Ct 2622, 4 EBC 1553, 32 BNA FEP Cas 1, 32 CCH EPD 33673.
Footnote 27. Amro v St. Luke's Hospital (1986, Pa) 39 BNA FEP Cas 1574.
Footnote 29. Trans World Airlines, Inc. v Thurston (1985) 469 US 111, 83 L Ed 2d 523,
Footnote 30. Britt v E. I. Du Pont de Nemours & Co. (1985, CA4) 768 F2d 593, 6 EBC
803 Benefits as "wages" under the Equal Pay Act

View Entire Section

The EPA only protects against sex discrimination in benefits if the benefits qualify as
"wages" under the Act. 31
"Wages" include all forms of compensation, irrespective of the time of payment, and
regardless of whether the payment is periodical or deferred to a later time. 32
Furthermore, all benefits come within the definition of "wages," even if they are not
counted for purposes of determining an employee's regular rate or entitlement to a
minimum wage. 33
Footnotes
Footnote 32. 29 CFR 1620.10.
Footnote 33. 29 CFR 1620.11(a).
804 Benefits under Executive Order 11246

View Entire Section
Executive Order 11246 requires covered government contractors to refrain from
discrimination against employees "during employment," including but not limited to,
actions involving rates of pay or other forms of compensation. 34
While Executive Order 11246 prohibits distinctions based on sex in fringe benefits, its
demands are satisfied if the employer's benefits contributions are the same for men and
women, or if they result in equal benefits for those groups. 35
Footnotes
Footnote 34. Ex Or 11246 202(1), 42 USCS 2000e note.
Footnote 35. 41 CFR 60-20.3(c).
805 Benefits under the Rehabilitation Act

View Entire Section

The Rehabilitation Act of 1973 is intended to prohibit discrimination in "fringe benefits,"
whether or not they are administered by the covered employer. 36
Footnotes
b. Sex Discrimination Issues [806-808]
806 "Head of household" conditions on benefits

View Entire Section
Conditioning the availability of benefits to employees and their dependents on whether
the employee is the "head of the household" or the "principal wage earner" in the family
unit may violate Title VII and the EPA. EEOC regulations provide that an employer who
conditions the entitlement to benefits on whether an employee is the "head of household"
or "principal wage earner" in a family creates a prima facie case of sex discrimination
under Title VII. Benefits so conditioned tend to be available only to male employees and
their families, and the "head of household" or "principal wage earner" status bears no
relationship to job performance. 37 "Head of household" conditions on benefits may be
challenged under either the disparate treatment or disparate impact methods of proving
discrimination. 38
Observation: The EEOC regulations assume that "head of household" policies which
condition receipt of benefits on that status are applied exclusively to women employees
(disparate treatment) and/or always have an unlawful adverse impact on female
employees (disparate impact). 39 Sexual discrimination will justifiably be found
provided these assumptions are supported by facts.
Recommendation: Female employees should not rely on the language of 29 CFR

1604.9(c) to establish a prima facie case of sex discrimination, but should be prepared
to present facts to establish a prima facie case under the disparate treatment or impact
theories of discrimination. 40 The nature of the facts necessary to make each
showing will vary with the precise parameters of the employer's policy and its
applicability or inapplicability to various situations.
Also, since "head of household" status does not pertain to job requirements or an
employee's job performance, a defense to an EPA claim on this basis will be closely
scrutinized, 41 as will be the implementation of the fringe benefits plan. 42
Consequently, a religiously-oriented private school that provided married men, but not
married women, with health insurance, based on its religious beliefs that men are always
the "head of households," violated Title VII and the EPA. Religion was not a "factor
other than sex" responsible for the different treatment. 43 Similarly, a sex-based "head
of household" allowance paid by a religiously-oriented private school, under the belief
that males were the heads of households, was unlawful under the EPA. 44
However, a "head of household" requirement for spousal medical insurance coverage,
which permitted an employee to elect coverage for a spouse only if the employee earned
more than the spouse, was a valid "factor other than sex" within the meaning of the Equal
Pay Act and, thus, was not unlawful under Title VII. Although the plan had a disparate
impact on the employer's female employees, it was justified by legitimate overriding
business considerations. Namely, it was designed to benefit the largest number of
employees, and those with the greatest need, and sought to keep the coverage cost as low
as possible to ensure that needy employees could afford coverage. 45
State aspects: Even if conditioning benefits on who is the "head of household" or

"principal wage earner" does not violate the federal laws, such a benefit plan may
violate several state FEP statutes which specifically outlaw such conditions. 46
Footnotes
Footnote 38. Colby v J.C. Penney Co. (1987, CA7) 811 F2d 1119, 8 EBC 1343, 43 BNA
Footnote 39. Theories of proof are discussed at 2699 et seq.
Footnote 41. 29 CFR 1620.21.
Footnote 42. 29 CFR 1620.11(c).
LC 34740.
35417.
Footnote 45. EEOC v J.C. Penney Co. (1988, CA6) 843 F2d 249, 9 EBC 1729, 46 BNA
FEP Cas 815, 46 CCH EPD 37897; Wambheim v J.C. Penney Co. (1983, CA 9) 705
F2d 1492, 4 EBC 1511, 4 EBC 2232, 31 BNA FEP Cas 1297, 31 CCH EPD 33597, cert
den (US) 82 L Ed 2d 848, 104 S Ct 3544, 34 BNA FEP Cas 1800, 34 CCH EPD
34448.
Footnote 46. Employment Coordinator EP- 20,415 et seq.
807 Benefits for dependents and spouses

View Entire Section
Under Title VII, the availability of benefits for the spouses and families of employees
cannot be based on the sex of the employees. For example, Title VII is violated when the
employer provides benefits for the wives and families of male employees, but the same
benefits are not available for the husbands and families of female employees. In
addition, an employer may not provide benefits for employees' wives or husbands where
the same benefits are not available, respectively, to female or male employees. 47
Similarly, an employer violates the Equal Pay Act by providing benefits to the spouses or
families of employees of one gender, without providing the same benefits to the spouses
or families of employees of the other gender. 48
Footnotes
Footnote 48. 29 CFR 1620.11(d).
808 Cost considerations as a defense

View Entire Section
The fact that the cost of providing particular benefits is greater for one sex than the other
is not a defense to sex discrimination charges under Title VII, 49 or the Equal Pay Act.
50 The Supreme Court, consistent with EEOC's position, has found that cost
considerations were not a defense to a sexually discriminatory retirement plan. 51
Caution: When the government is the employer, cost considerations have provided a
valid defense to a constitutional challenge in a pregnancy disability benefits case. 52
Footnotes
Footnote 50. 29 CFR 1620.11(e).
Footnote 51. Los Angeles, Dept. of Water & Power v Manhart (1978) 435 US 702, 55 L
3. Pregnancy Benefits [809-813]
809 Generally
View Entire Section
Go to Supplement
A worker's entitlement to benefits related to pregnancyboth paid and unpaidis
governed by both federal and state 53 law. The applicable federal law is the Pregnancy
Discrimination Act (PDA), which amended Title VII and set forth the standards under
which benefit determinations are made under these circumstances. According to the
PDA, wherever the phrase "because of sex" appears in Title VII, it includes but is not
limited to, ". . . because of or on the basis of pregnancy, childbirth, or related medical
conditions . . ." The PDA further states that women affected by pregnancy, childbirth, or
related medical conditions must be treated the same under all benefits programs as other
persons who are not so affected, but are similar in their ability or inability to work. 54
While an employer may not discriminate against pregnant workers, the law does not
require that they receive favorable treatment either. For example, an employer did not
commit sex discrimination when it fired a newly hired office manager who had other
work-related problems because she needed a six-week leave of absence due to her
pregnancy. A legitimate business justification for her termination existed, since the
position required someone who could provide the constant supervision required of the
job. Furthermore, no evidence was presented that males or females in similar
circumstances would have been treated differently when requesting a six-week leave of
absence for any reason. Finally, the fact that other female employees with more tenure
and better work records were allowed to take maternity leave, did not demonstrate
disparate treatment based on either sex or pregnancy. 55
In the context of evaluating the legality of a state law that mandated maternity leave and
associated benefits, the Supreme Court has stated that the PDA was enacted to provide "a
floor beneath which pregnancy . . . benefits may not drop, not a ceiling above which they
may not rise." 56
However, the favorable leave treatment permitted in Guerra is limited to instances of
disability related to pregnancy. It does not justify preferential treatment of female
employees who have given birth, but who do not have a continuing disability related to
that birth. 57
The Seventh Circuit agrees that the PDA only prohibits employment policies that
adversely deal with medical conditions relating to pregnancy and childbirth as opposed to
other medical conditions. 58

Practice Aids: Discrimination in the workplace: Are men and women not entitled to
the same parental leave benefits under Title VII? 47 SMU LR 425 (1994).
2000e(k)). 130 ALR Fed 473.
Footnotes
Footnote 53.
State Aspects State job discrimination laws in several states expressly treat
discrimination prohibitions concerning benefits for pregnant workers in a manner
unique from the treatment of other benefits. These state provisions are discussed in the
Employment Coordinator at EP-20,540 et seq. However, state laws may not
explicitly address nondiscrimination in pregnancy benefits, but may merely include
pregnancy discrimination as part of the sex discrimination prohibition. The prohibition
against sex discrimination is discussed generally at 146 et seq., with appropriate
state treatments indicated. Furthermore, it should be noted that when a state job
discrimination law forbids pregnancy discrimination, other particular provisions and
exceptions purporting to address all grounds of prohibited discrimination concerning
fringe benefits or other terms and conditions of employment may also apply.
Prohibited discrimination involving terms and conditions of employment generally is
discussed at 701 et seq., with appropriate state treatments indicated. Discriminatory
fringe benefits are discussed at 801 et seq., with appropriate state treatments
indicated.
178.
Law Reviews: International Union v. Johnson Controls, Inc. [ 111 S. Ct. 1196]:
Sex-Specific Fetal Protection Policies of Employers are Prohibited by Title VII as
Amended by the Pregnancy Discrimination Act. 94 W. Va. L. Rev. 237 (1991).
Footnote 55. Page v Chandonnet (1989, DC Md) 51 BNA FEP Cas 764.
Footnote 56. California Federal Sav. & Loan Asso. v Guerra (1987, US) 93 L Ed 2d 613,
107 S Ct 683, 7 EBC 2657, 42 BNA FEP 1073, 41 CCH EPD 36641.
Footnote 57. Schafer v Board of Public Educ. of School Dist. (1990, CA3) 903 F2d 243,
Footnote 58. Maganuco v Leyden Community High School Dist. 212 (1991, CA7) 939
F2d 440, 14 EBC 1500, 56 BNA FEP Cas 982, 57 CCH EPD 40928.
810 Abortion benefits

View Entire Section
Go to Supplement
The PDA does not require employers to pay for health insurance benefits for abortion,
except where the life of the mother would be endangered or where medical complications
have arisen from an abortion. However, the statute does not prevent an employer from
providing abortion benefits. 59
Furthermore, the PDA requires all other fringe benefits besides health insurance to be
equally available to those who have abortions as to other beneficiaries. 60
810 ----Abortion benefits [SUPPLEMENT]
(42 USCS 2000e(k)). 130 ALR Fed 473.
Footnotes
The requirements concerning health insurance benefits for abortion are discussed at
826 et seq.
Footnote 60. 29 CFR 1604, Appx, Q. 35.
811 Benefits for pregnant dependents

View Entire Section
Under Title VII, as amended by the PDA, the availability of benefits for the spouses and
families of employees cannot be based on the sex of the employee, although an employer
is not required to provide health insurance benefits for the pregnancy-related conditions
of employees' dependents where it does not provide any other benefits for dependents. 61
Furthermore, the Supreme Court has held that where the employer provides benefits for
the medical conditions of the spouses of its employees, it cannot limit the benefits
provided for pregnancy-related medical conditions of the spouses of male employees if it

does not equally limit the benefits provided for the medical conditions of the spouses of
female employees. 62 The Supreme Court's decision has been found to apply
retroactively by the Fifth, 63 Seventh, 64 Ninth, 65 and Eleventh Circuit. 66
Also, Title VII prevents an employer from offering optional dependent coverage that
excludes pregnancy-related medical conditions or offering less coverage for such
conditions than for other medical conditions. 67
Footnotes
Footnote 61. 29 CFR Part 1604, Appx, Q. 21.
Specific Title VII requirements pertaining to the coverage of dependents for
pregnancy-related conditions under health insurance plans is discussed at 826 et seq.
Footnote 63. EEOC v Texas Industries, Inc. (1986, CA5) 782 F2d 547, 7 EBC 1081, 40
Footnote 64. EEOC v Vucitech (1988, CA7) 842 F2d 936, 9 EBC 1787, 46 BNA FEP
Cas 550, 46 CCH EPD 37932.
Footnote 65. EEOC v Puget Sound Log Scaling & Grading Bureau (1985, CA9) 752 F2d
Footnote 66. EEOC v Atlanta Gas Light Co. (1985, CA11) 751 F2d 1188, 6 EBC 1630,
36 BNA FEP Cas 1671, 36 CCH EPD 34956, and cert den 474 US 968, 88 L Ed 2d
316, 106 S Ct 333, 6 EBC 2392, 39 BNA FEP Cas 384, 38 CCH EPD 35642.
812 Effect of marital status

View Entire Section
Under the PDA, an employer may not limit fringe benefits for pregnancy- related medical
conditions only to employees who are married. 68
Observation: Title VII, as amended by the PDA, does not prohibit marital status
discrimination. 69 Thus, employers are entitled to limit fringe benefits for
pregnancy-related conditions to married employees only, if all similar fringe benefits
are limited to married employees. In other words, if health insurance and disability
coverage are only available to married employees, pregnancy-related medical

conditions would receive equal treatment, as the statute requires.
State aspects: Some state statutes specifically prohibit discrimination on the basis of
marital status. 70
Footnotes
Footnote 70. Employment Coordinator EP- 10,601 et seq.
813 Effect of all-female work force

View Entire Section
Even if an employer has an all-female work force, it is required by the PDA to treat
pregnancy-related medical conditions the same as all other medical conditions for
purposes of fringe benefits. If it treats such pregnancy-related medical conditions
differently from other medical conditions, this constitutes sex discrimination under Title
VII. 71
Footnotes
4. Older Workers' Benefits [814-825]
814 Older Workers Benefit Protection Act; generally

View Entire Section
Go to Supplement
Under the Older Workers Benefit Protection Act (OWBPA) amendments to the ADEA,
Congress clarified the fact that the statute is intented to regulate all employee benefits,
including those provided under a bona fide employee benefit plan. 72
Observation: Prior to these amendments the ADEA's benefit plan exception had
been interpreted by the Supreme Court to mean that the Act did not protect older
workers from age discrimination in benefits. However, the statute does permit an
employer to observe the terms 73 of a bona fide 74 employee benefit plan where,
for each benefit or benefit package, the actual amount of payments made or costs
incurred on behalf of an older worker is not less than that made or incurred on behalf
of a younger worker, as permitted under the EEOC's regulations at 29 CFR 1625.10.
75 By referring to these regulations the Act has codified the so-called "equal benefit
or equal cost" principle, so that if the cost of providing a particular benefit to an older
worker is greater than it is to provide the same benefit to a younger worker, the
employer can provide smaller benefits to older workers if it spends at least the same
amount of money for all workers. Thus, reduced benefits for older workers may not be
based on arbitrary age discrimination, but may be based on employer-specific, agerelated cost justifications. 76 Since the term "subterfuge" has been entirely eliminated
from the benfit plan exception, discussions of that term in the regulations are
superfluous except as they are understood to mean the "equal benefit or equal cost"
principle. 77
The benefit plan exception does not excuse the failure to hire an individual or permit his
involuntary retirement because of age, and employers claiming the exception have the
burden of proving this defense. 78 Furthermore, benefit plans must comply with the
OWBPA's amendments to the ADEA regardless of their date of origin. 79
Other significant changes made by those amendments to the ADEA's regulation of
benefits include specific provisions or incorporated regulations affecting:
vacation pay; 80
sick leave pay; 81
pension eligibility and benefits; 82
permissible reductions in long term disability benefits; 83
permissible reductions in severance pay; 84
life insurance benefits; 85
permissible voluntary early retirement incentive plans. 86
State aspects: State statutes sometimes contain provisions that permit certain
distinctions based on age in providing employee benefits. 87
814 ----Older Workers Benefit Protection Act; generally [SUPPLEMENT]
Practice Aids: The Older Worker's Benefit Protection Act of 1990: The end of
ratification and tender back in ADEA waiver cases, 73 Bos U LR 639 (1993).
Hedging Betts [ 109 S Ct 2854 (1989)]: the Older Workers Benefit Protection Act, 72
Mich BJ 168 (1993).
Age-based exit incentives, coercion, and the prospective waiver of ADEA rights: The
failure of the Older Workers Benefit Protection Act, 79 Va LR 1271 (1993).
Footnotes
Footnote 73. 824.
Footnote 75. 29 USCS 623(f)(2)(B)(i), discussed at 817-821.
Footnote 76. 136 Cong Rec H 8617.
Footnote 77. S Rept 101-263, 4/5/90, p. 18.
Footnote 78. 29 USCS 623(f)(2)(B).
Footnote 79. 29 USCS 623(k)
Footnote 87. These provisions are discussed in the Employment Coordinator EP-20,
640 et seq.
815 Effective date of Older Workers Benefit Protection Act

View Entire Section
The Older Workers Benefit Protection Act (OWBPA) amendments to the ADEA 88
apply to employee benefits and benefit plans established or modified on or after October
16, 1990, and to other conduct occurring after April 14, 1991. 89 Thus, employers
have until April 14, 1991, to bring existing plans into compliance, but new benefits or
benefit plans and modifications to existing plans or benefits are immediately subject to
the Act. 90
However, the amendments will not apply to a series of benefit payments made to an
individual or his representative that began before October 16, 1990, and that continue
under an arrangement that was in effect on October 16, 1990. Although no substantial
modifications may be made to such arrangements after October 16, 1990, if the intent of
the modification is to evade the purposes of the Act. 91
Furthermore, where a collective bargaining agreement that is in effect on October 16,
1990, terminates after that date, and contains a provision that would be superceded by the
OWBPA, parties to the agreement have until the date the contract expires, or June 1,
1992, whichever is earlier, to bring their plans into compliance for employees covered by
the agreement. 92
Footnotes
Footnote 88. 814.
Special provisions conerning the effective date of the amendments for purposes of state
and local government benefit plans are discussed at 816.
Footnote 91. 29 USCS 623 note, P.L. 101-433 105(e).
816 --State and local government benefit plans

View Entire Section
Where a state or its agency, instrumentality, or political subdivision has maintained an
employee benefit plan between June 23, 1989, and October 16, 1990, that would be
superceded by the Older Workers Benefit Protection Act amendments to the ADEA, 93
and which may be only modified through a change in applicable state or local law, the
employer may delay compliance with the amendments until October 16, 1992. 94
Also, after "reasonable notice" and an election period of at least 180 days, state or local
government employees may be provided with a one-time election to retain coverage
under the employer's old plan for "disability benefits" or obtain coverage under a new
disability benefit plan that conforms to the Act. While offering such an election period is
not required, if it is offered it must be provided no later than October 16, 1992. 95
"Reasonable notice" is a notice that is sufficiently accurate and comprehensive to inform

an employee of the terms and conditions of the disability benefits, including whether he
is immediately eligible, and should be written so as to be understood by the average
employee eligible to participate. 96
A "disability benefit" in this context includes any program for employees that provides
long term disability benefits, whether on an insured basis in a separate employee benefit
plan, or as part of an employee pension benefit plan. 97
An election of coverage under a new "disability benefit" will abrogate the employee's
rights to continue to receive existing "disability benefits", but would maintain any years
of service accumulated for purposes of determining eligibility for the new benefit. 98
If the employee does not elect coverage under a new "disability benefit", the employer
may continue to cover him under the previous "disability benefit", even it does not
otherwise satisfy the ADEA's requirements. 99
The EEOC and the Secretaries of Labor and the Treasury must provide assistance to state
and local governments, on request, in identifying and securing independent technical
advice necessary for compliance with the amendments. 1
Footnotes
Footnote 93. 814.
Footnote 94. 29 USCS 623 note, P.L. 101-433 105(c)(1).
Footnote 96. 29 USCS 623 note, P.L. 101-433 105(c)(4)(C).
Footnote 97. 29 USCS 623 note, P.L. 101-433 105(c)(4)(B).
Footnote 98. 29 USCS 623 note, P.L. 101-433 105(c)(2)(C).
Footnote 99. 29 USCS 623 note, P.L. 101-433 105(c)(2)(B).
817 When may employers require greater benefit contributions by older workers
View Entire Section
Under the EEOC regulations incorporated by the Older Workers Benefit Protection Act
amendments to the ADEA, 2 an employee benefit plan is considered unlawful if older
workers are required, as a condition of employment, to make greater contributions than

younger employees. 3 However, greater contributions may be required from older
workers if they are not required to join the plan and do not fund a greater part of the total
premium costs than do younger employees. 4
In voluntary plans where employers and participating employees share premium costs,
required contributions may increase with age if the proportion of the total premium
required does not increase with age. 5 When employees pay the full costs under a
benefit plan, voluntary participants may be required to pay the full premium costs for
their ages, 6 but older workers may not be required to contribute anything if younger
workers do not. 7
Voluntary plans that yield lower benefits to older workers based on permissible cost
considerations may give older employees the option of making greater monetary
contributions in order to receive the same level of benefits as younger employees, if the
difference in cost otherwise meets all of the elements necessary to qualify for the benefit
plan exception. 8
Footnotes
Footnote 2. 814.
Footnote 3. 29 CFR 1625.10(d)(4)(i).
Footnote 4. 29 CFR 1625.10(d)(4)(ii).
Footnote 5. 29 CFR 1625.10(d)(4)(ii)(C).
Footnote 6. 29 CFR 1625.10(d)(4)(ii)(A).
Footnote 7. 29 CFR 1625.10(d)(4)(ii)(B).
Footnote 8. 29 CFR 1625.10(d)(4)(iii).
818 When may employers provide lower benefits to older workers

View Entire Section
amendments to the ADEA, 9 except for certain retirement plan benefits, 10 an
employee benefit plan may provide lower benefits to older workers if they are justified
by age-related cost considerations. 11 Even if older workers receive lower benefits, a
plan may qualify for the exception if the actual costs of providing benefits to older and
younger workers are the same. 12
The cost considerations need not be actuarially based, 13 but cost data justifying lower
benefits to older workers must be valid and reasonable, and must indicate the actual cost
of providing the benefit over a representative number of years. Lacking reliable cost
information, an employer may make reasonable projections from existing cost data. In
addition, an employer may rely on data for similarly-situated employees outside its work
force to justify providing lower benefits, unless it incurs costs that are significantly
different from the comparison workforce, or unless reliance on the data leads to
significantly lower benefits for older workers. 14
Two types of cost comparisons are permissible. These two methods are the
"benefit-by-benefit" approach 15 and the "benefit package" approach. 16 Under either
approach, the employer, with the exception of health insurance, 17 may not use more
than a five-year age range in its evaluations. Thus, an employer may use the age-based
cost justification if the actual cost of providing lesser benefits to workers between the
ages of 65 and 70 is the same as the cost of providing benefits to employees between the
ages of 60 and 65. However, a benefit plan is not entitled to the exemption if the
employer attempts to justify a plan providing lower benefits for workers between the ages
of 60 and 65 based on cost comparisons of benefits for workers between 50 and 55 years
of age. 18
Footnotes
Footnote 9. 814.
Footnote 11. 29 CFR 1625.10(d).
Footnote 12. 29 CFR 1625.10(a)(1).
Footnote 13. Cipriano v Bd of Education (1986, CA2) 785 F2d 51, 7 EBC 1145, 40 BNA
Footnote 14. 29 CFR 1625.10(d)(1).
Footnote 15. 819.
Footnote 16. 29 CFR 1625.10(d)(2), discussed at 820.
Footnote 18. 29 CFR 1625.10(d)(3).
819 Benefit-by-benefit cost comparison

View Entire Section
amendments to the ADEA, 19 for the purpose of determinaing when employers may
provide lesser benefits to older workers under the benefit plan exception, 20 if an
employer adopts a "benefit-by-benefit" cost comparison analysis, it compares benefit
costs at different age levels and makes adjustments in the benefit amount or level on an
individual benefit basis. These adjustments must be made to a specific form of benefit for
a specific event or contingency. 21 For example, an increase in group term life
insurance costs for older workers would allow an employer to make a corresponding
reduction in the amount of coverage for those workers. However, one form of benefit
may not be substituted for another, even if both benefits are designed to address the same
contingency, in this example, death. 22
Footnotes
Footnote 19. 814.
Footnote 20. 818.
Footnote 21. 29 CFR 1625.10(d)(2)(i).
Footnote 22. 29 CFR 1625.10(d)(2)(i).
820 Benefit package cost comparison

View Entire Section
provide lesser benefits to older workers under the benefit plan exception, 24 if an
employer adopts a "benefit package" cost comparison analysis, cost comparisons and
adjustments may be made with regard to covered plans in the aggregate. While providing
greater flexibility than the "benefit-by- benefit" approach, 25 it cannot be used to reduce
either the cost of the employer, or the favorability to employees, of overall benefits for
older workers. 26
This approach has been useful in evaluating costs of "cafeteria" style benefit programs,
such as those in which the employer designates a specified dollar amount to be used by
each eligible employee to purchase whatever benefits are most attractive to him. 27
However, the "benefit package" approach cannot be used in evaluating:
benefit plans that do not come within the benefit plan exception; 28
any retirement or pension plan, since those plans are not tied to actuarially significant
cost considerations; 29
reductions in health insurance benefits greater than would be justified under a

"benefit-by-benefit" approach; 30
any other benefit reduction greater than one that would be justified under the
"benefit-by-benefit" approach, unless it is offset by another benefit available to the same
employees. 31
Employers justifying benefit reductions under a "benefit package" approach must have
data to show that reductions are fully justified. 32
Illustration: Under a permissible "benefit package" cost comparison approach

permitted by the regulations, two employee benefit plans provide both Benefit A and
Benefit B to all employees. An age-based cost increase would justify a 10% decrease
in both benefits on a "benefit-by-benefit" basis. The affected employees would,
however, find it more favorablethat is, more consistent with their needsfor no
reduction to be made in Benefit A and a greater reduction to be made in Benefit B.
This "trade-off" may be made. Details of the trade-off depend on data relating to the
relative cost to the employer of the two benefits. If Benefit A and Benefit B cost the
same, Benefit B may be reduced up to 20 % if there is no reduction in Benefit A.
However, if Benefit A, costs only one-half as much as Benefit B, the latter benefit may
be reduced up to only 15% if there is no reduction in Benefit A, since any greater
reduction in Benefit B would result in an impermissible reduction in total benefit costs.
33
A "benefit package" approach that is otherwise permissible may be fashioned soley by
the employer or created as a result of dealings with insurance carriers. For example, a
"benefit package" of health and life insurance, having less life insurance coverage for
older employees, was entitled to the benefit plan exception although it was formulated
because no insurance carrier bidding on the health coverage desired by the employer
would sell it unless life insurance coverage was also included. Each such policy reduced
life insurance coverage with advancing age. 34
Footnotes
Footnote 23. 814.
Footnote 24. 818.
Footnote 25. 819.
Footnote 26. 29 CFR 1625.10(d)(2)(ii).
Footnote 27. S Rept 101-263, 4/5/90, p. 19.
Footnote 28. 29 CFR 1625.10(f)(2)(i).
Footnote 29. 29 CFR 1625.10(f)(2)(ii).
Footnote 30. 29 CFR 1625.10(f)(2)(iii).
Footnote 31. 29 CFR 1625.10(f)(2)(iv).

Footnote 32. 29 CFR 1625.10(f)(2)(v).
Footnote 33. 29 CFR 1625.10(f)(2)(v).
Footnote 34. Germann v Levy (1982, ND Ill) 553 F Supp 700, 3 EBC 2505, 30 BNA FEP
Cas 1027, 31 CCH EPD 33351.
821 Effect of government benefit availability

View Entire Section
provide lesser benefits to older workers under the benefit plan exception, 36 it is not
unlawful for an employer to allow certain benefits to be provided by the government,
although their availability is based on age. However, the availability of government
benefits does not justify a reduction in employer-provided benefits if older employees
will receive lower benefits than comparable younger workers when the government and
employer-provided benefits (including family and dependent coverage) are added
together. For example, simply because certain benefits are available under Medicare to
an older worker does not justify denying him a benefit that is not provided by Medicare
but is provided to younger workers. 37 Thus, merely because benefits such as Medicare
are available from the federal government does not justify a reduction in
employer-provided retiree health benefits if the result would be that the combination of
benefits provided by both the employer and the government taken together would entitle
the older retiree to less benefits of any type than a similarly situated younger retiree. 38
Caution: Federal law requires group health plans to be the primary payer of benefits
for older employees or spouses who are also eligible for Medicare. Even though
violation of this requirement will not expose an employer to liability under the ADEA,
to the extent that the EEOC regulations could be interpreted to excuse the payment of
group health plan benefits that are to be provided by Medicare, they are invalid.
Footnotes
Footnote 35. 814.
Footnote 36. 818.
Footnote 37. 29 CFR 1625.10(e).
Footnote 38. S Rept 101-263, 4/5/90, p. 21.
822 Requirement that a benefit plan be "bona fide"

View Entire Section
The ADEA's benefit plan exception 39 applies only if the plan is "bona fide." At a
minimum, the plan must be genuine or authentic, and pay benefits, in order to be
recognized as "bona fide." 40
Thus, a plan may not be "bona fide" if it provides for
inadequate benefits. 41 However, an employee's deliberate choice not to seek federal
and employer subsidized collateral benefits contemplated by a plan did not make the
benefits inadequate for purposes of finding the plan to be "bona fide" under the
exception. 42
Footnotes
Footnote 39. 814.
Footnote 40. Third CircuitSikora v American Can Co. (1980, CA3) 622 F2d 1116, 22
Fourth CircuitEEOC v Baltimore & O. R. Co. (1980, CA4) 632 F2d 1107, 23 BNA
Fifth CircuitJensen v Gulf Oil Refining & Marketing Co. (1980, CA5) 623 F2d 406, 23
Sixth CircuitCarpenter v Continental Trailways (1980, CA6) 635 F2d 578, 24 BNA
Seventh CircuitSmart v Porter Paint Co. (1980, CA7) 630 F2d 490, 23 BNA FEP Cas
764, 23 CCH EPD 31181.
Ninth CircuitMarshall v Hawaiian Tel. Co. (1978, CA9) 575 F2d 763, 1 EBC 1664, 17
Footnote 41. Sikora v American Can Co. (1980, CA3) 622 F2d 1116, 22 BNA FEP Cas
638, 22 CCH EPD 30803.
Footnote 42. Slusher v Hercules, Inc. (1982, WD Va) 532 F Supp 753.
823 Requirement that a plan be communicated to employees to be "bona fide"
View Entire Section

In order for a benefit plan to fall within the ADEA's benefit plan exception as a "bona
fide" plan, it must be described accurately in writing to all employees, and ERISA's
disclosure requirements should be followed in this respect. 43 Accordingly, some courts
have considered whether, and how well, a plan was communicated to employees in
determining whether it is "bona fide." For example, where the language of a booklet
distributed to employees contradicted the specific terms of a plan, the plan was not "bona
fide." 44 However, plans were "bona fide," and entitled to the exception, where:
there was no evidence that the employer had deceived any employees or withheld
information from them regarding the particulars of the plan; 45
a complete copy of the plan was available to employees; 46
a summary of the plan was communicated to the employee, despite the fact that the
provision in contention was not part of the summary. 47
Footnotes
Footnote 43. 29 CFR 1625.10(b).
Footnote 44. Sexton v Beatrice Foods Co. (1980, CA7) 630 F2d 478, 23 BNA FEP Cas
717, 23 CCH EPD 31178.
Footnote 45. Marshall v Hawaiian Tel. Co. (1978, CA9) 575 F2d 763, 1 EBC 1664, 17
Footnote 46. Carpenter v Continental Trailways (1980, CA6) 635 F2d 578, 24 BNA FEP
25 BNA FEP Cas 1192 25 CCH EPD 31797.
Footnote 47. Brennan v Taft Broadcasting Co. (1974, CA5) 500 F2d 212, 8 BNA FEP
Cas 665, 8 CCH EPD 9668.
824 Requirement that plan terms be observed

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An employer must "observe the terms" of an employee benefit plan in order to rely upon
the ADEA exception. 48 The fact that a plan provides optional choices or permits
discretion by the employer, 49 or by both the employer and employee, 50 does not, by
itself, prevent a finding that the employer was "observing" the terms of the plan. Thus,
an employer need not be forced by the plan's terms to take a particular action in order to
be found to be "observing" those terms. 51 The plan need only grant the employer the
right to take an action. 52
However, a few courts have held that a plan which permits optional actions by the
employer will not be covered by the exception when the employer is not merely
conforming to the dictates of the plan, 53 or at least routinely applying the same
discretion with respect to all employees. 54
When the plan does not provide the employer with the authority to take the disputed
action, 55 or its terms are too broad and too vague to be reasonably construed to
provide such authority, 56 the employer cannot be said to have "observed" the terms of
the plan and, therefore, is not entitled to the exception.
Footnotes
Footnote 48. 814.
Footnote 49. Jensen v Gulf Oil Refining & Marketing Co. (1980, CA5) 623 F2d 406, 23
BNA FEP Cas 790, 23 CCH EPD 31157; Carpenter v Continental Trailways (1980,
Footnote 50. Renaudin v Gulf Oil Corp. (1980, CA5) 623 F2d 414, 23 BNA FEP Cas
1767, 23 CCH EPD 31156.
Footnote 51. Marshall v Hawaiian Tel. Co. (1978, CA9) 575 F2d 763, 1 EBC 1664, 17
Footnote 52. Gonsalves v Caterpillar Tractor Co. (1980, CA7) 634 F2d 1065, 24 BNA
Footnote 53. Langman v Western Electric Co. (1980, SD NY) 488 F Supp 680, 23 BNA
FEP Cas 1222, 23 CCH EPD 31054.
Footnote 54. Hannan v Chrysler Motors Corp. (1978, ED Mich) 443 F Supp 802, 16
Footnote 55. EEOC v Baltimore & O. R. Co. (1980, CA4) 632 F2d 1107, 23 BNA FEP
26 BNA FEP Cas 1687, 27 CCH EPD 32145; Benzel v Valley Nat. Bank (1980, CA9)
633 F2d 1325, 2 EBC 1063, 24 BNA FEP Cas 1204, 24 CCH EPD 31416.
Footnote 56. Sexton v Beatrice Foods Co. (1980, CA7) 630 F2d 478, 23 BNA FEP Cas
717, 23 CCH EPD 31178.
825 Extending additional benefits to older employees

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An employer may extend additional benefits to older employees protected by the ADEA
if it has a reasonable basis to conclude that those benefits will counteract problems
related to age discrimination. 57 This is an exception to the general rule that employers
may not give preferences to protected individuals. According the EEOC, an employer's
extension of additional benefits may not indicate an ADEA violation if the benefits: (1)
promote the employment of older persons, such as by encouraging older employees to
continue employment; (2) reasonably counteract problems related to age discrimination,
such as by recognizing that, due to myths about aging, persons 60 and over would
encounter greater difficulty finding employment, or; (3) are offered in good faith to meet
problems arising from the impact of age on employment. 58 In no event, however, may
such additional benefits be used to accomplish practices otherwise prohibited by the
ADEA. 59
Footnotes
5. Medical and Health Insurance [826-834]
826 Generally
View Entire Section
Employers must administer medical and health insurance plans in a nondiscriminatory
manner in order to avoid violating federal 60 and state job discrimination laws. 61
Medical and health insurance plans are specifically regulated under Title VII's sex
discrimination prohibition 62 and the Pregnancy Discrimination Act amendments to
that statute. 63
Caution: Medical and health insurance benefits may also be implicitly regulated
under statutes that purport to cover all terms and conditions of employment, 64
subject to the same exceptions applicable to all other terms and conditions. 65
Footnotes
Footnote 60. Health benefits that lawfully may be offset from severance pay under the
ADEA are discussed at 859 et seq.
Footnote 61.
State Aspects State job discrimination law provisions that treat medical and health
insurance benefits in a unique manner are discussed at Employment Coordinator
EP-21,415 et seq. However, state job discrimination laws may not expressly refer to
medical or health insurance benefits, but may, nevertheless regulate them if they
explicity or implicitly cover all terms and conditions of employment, subject to the
exceptions that are applicable to all terms and conditions. These topics are discussed
generally at 701 et seq. and 268 et seq., respectively, with appropriate references to
state treatments. State job discrimination laws that do not explicitly address medical
and health insurance benefits may alternatively include them in their coverage of fringe
benefits generally or pregnancy or older worker benefits. These matters are discussed
at 801 et seq., discussed at 809 et seq., and discussed at 862 et seq.,
respectively, with appropriate references to state treatments.
Footnote 62. 29 CFR 1604.9(a), 1604.9(b), 1604.9(d), discussed at 827 and
discussed at 828.
Footnote 63. 42 USCS 2000e(k), discussed with reference to this issue at 829-832.
827 Sex discrimination in providing health benefits

View Entire Section
Title VII does not require employers to provide health insurance for employees. If an
employer chooses to do so, however, it must do so in a nondiscriminatory fashion. Thus,
medical and accident benefit plans which discriminate between male and female
employees 66 or their spouses 67 are unlawful under Title VII, if they provide lesser
benefits to one sex than the other. 68 For example, an employer committed unlawful sex
discrimination when he automatically provided health insurance benefits to all male
employees, but gave those benefits to female employees only upon their request and upon
proof that they were the sole source of their families' income. 69 Further, when both
spouses work and have medical insurance through their employers, coordination of the
coverage of dependants that limits dependant coverage to only one of the plans is
permissible, if the selection of which plan is to provide such coverage is not made on a
sexually discriminatory basis. For example, an employer's "birthday rule" that covered
dependants of working spouses under the plan of the parent whose birthday occurs first in
the calendar year was a lawful restriction under Title VII. However, an employer that
always restricted dependant coverage to the male working spouse under a coordination of
benefits provision violated Title VII. 70 Likewise, a religiously-oriented private school
violated both Title VII and the EPA by providing health insurance to only "heads of
households." According to the employer's professed religious beliefs, "heads of
households" were required to be male, and thus no such benefit was provided to married
female employees, absent temporary circumstances, such as when the husband was a
student or ill. The school's asserted right to so define "heads of households" under the
free exercise clause was rejected, since female employees were given group life and
disability insurance on the same basis as male employees, despite the professed church
doctrine, so that any government intrusion involved by also equalizing health insurance
benefits was de minimus, and, therefore, constitutional. Also, the government's
compelling interest in nondiscrimination outweighed any religious concerns involved in
that instance. 71
However, regardless of the fact that an employer's medical insurance plan provided
certain benefits only to employees who were "heads of households" and, therefore, had a
disparate impact on the female employees, it was justified by the legitimate consideration
of keeping the cost of coverage as low as possible to ensure that the needy could afford it
and thus benefit the largest number of employees. 72
The employer's costs of providing medical and health insurance benefits on a sex-neutral
basis is not a defense. 73
Observation: While 29 USCS 1604.9(e), above, specifically rejects the employer's

cost of providing benefits as a defense to a charge of sex discrimination under Title
VII, it does not specifically address the defense raised in Wambheim, above, which
involved a cost increase to employees in obtaining medical benefits.
When health insurance benefit discrimination exists, the victims may not be entitled to
retroactive relief before the date of the Supreme Court's Norris decision, if the violation
occurs in the context of a pension system based on sexual actuarial distinctions. 74 For
example, the Second Circuit refused to award retroactive relief before that date in a suit
challenging a state's use of sex-based actuarial tables to determine monthly credits toward
the cost of retirees' health insurance. At the time an employee retired, the state calculated
a monthly credit toward the cost of the retiree's health insurance based on the dollar value
of the employee's accrued sick leave and the employee's remaining life expectancy using
actuarial tables. After Norris, the state began using unisex actuarial tables for the
calculations, but women who retired before the change were not entitled to retroactive
relief because the state was not on notice before Norris that the use of such actuarial
tables was unlawful. Also, retroactive relief would burden the state with additional
financial obligations by requiring an infusion of state funds or would require an
impermissible reduction in the benefits of male retirees. 75
Footnotes
Footnote 66. 29 CFR 1604.9(a), 1604.9(b).
Footnote 68. Grogg v General Motors Corp. (1978, SD NY) 444 F Supp 1215, 17 BNA
Footnote 70. Reinforcing Iron Workers Local 426 Health & Welfare Fund v Michigan
Bell Tel. Co. (1990, ED Mich) 746 F Supp 668, 12 EBC 2580, 54 BNA FEP Cas 821, 55
CCH EPD 40554.
1073, 39BNA FEP Cas 1815, 27 BNA WH Cas 890, 39 CCH EPD 35872, 103 CCH
LC 34740.
Footnote 72. Wambheim v J.C. Penney Co. (1983, CA9) 705 F2d 1492, 4 EBC 1511, 4
EBC 2232, 31 BNA FEP Cas 1297, 31 CCH EPD 33597, cert den 467 US 1255, 82 L
Ed 2d 848, 104 S Ct 3544, 5 EBC 2055, 34 BNA FEP Cas 1800, 34 CCH EPD 34448;
EEOC v J.C. Penney Co. (1988, CA6) 843 F2d 249, 9 EBC 1729, 46 BNA FEP Cas 815,
46 CCH EPD 37897.
Footnote 74. As to such actuarial distinctions, generally, see 835 et seq.
Footnote 75. Graham v New York, Dept. of Civil Service (1990, CA2) 907 F2d 324, 12
EBC 1801, 54 CCH EPD 40060, cert den (1990, US) 112 L Ed 2d 585, 111 S Ct 580,
13 EBC 1096, 55 CCH EPD 40408.
828 Sex discrimination in making health insurance payments

View Entire Section
Hospital and health insurance payments, according to EEOC's Equal Pay Act (EPA)
regulations are "wages" covered by the statute. 76 Thus, an employer who did not
provide hospitalization benefits to a female employee that were provided to similarly
situated male employees violated both the EPA and Title VII. 77
Footnotes
Footnote 76. 29 CFR 1620.11(a).
Footnote 77. Taylor v Franklin Drapery Co. (1977, WD Mo) 441 F Supp 279, 20 BNA
FEP Cas 1692, 16 CCH EPD 8202, vacated on other grounds (WD Mo) 443 F Supp
829 Sex discrimination in providing benefits for pregnancy- related conditions

View Entire Section

Go to Supplement
If an employer provides health insurance benefits for employees' medical expenses, Title
VII and the Pregnancy Discrimination Act (PDA) amendments to it 78 require
pregnancy-related medical conditions to be treated the same as other medical conditions
with regard to:
deductible provisions; 79
preexisting condition exclusions; 80
reimbursements for expenses; 81
choice of physicians and hospitals, and promptness of payment for claims; 82
dollar amount limitations, whether paid directly or indirectly by the employer. 83
If an employer provides its employees with a choice among several health insurance
plans, coverage for pregnancy-related conditions must be offered in all of the plans. 84
Therefore, a health insurance plan did not violate the PDA merely because maternity
benefits were denied under the plan's "preexisting conditions" clause that denied benefits
during the first 12 months of coverage for any known condition requiring treatment,
services, or prescription drugs or medicines during the three-month period preceding the
time an individual became covered under the plan. The plan exclusion treated pregnancy
no less favorably than any other medical condition. 85
Conversely, a medical insurance plan's provision that maternity benefits be paid
regardless of whether pregnancy had commenced during the coverage period,
notwithstanding a "preexisting conditions" clause precluding benefits until three months
had elapsed after any previous treatment, did not violate the PDA. The insurer treated
pregnancy like any other illness in all other respects. Its provision for benefits regardless
of when pregnancy occurred was intended to comply with the PDA, and, thus, should not
be interpreted to favor maternity over other illnesses. 86
829 ----Sex discrimination in providing benefits for pregnancy-related conditions
[SUPPLEMENT]
(42 USCS 2000e(k)). 130 ALR Fed 473.
Footnotes
Footnote 78. 42 USCS 2000e(k), discussed generally at 809 et seq.

Footnote 85. Vance v Aetna Life Ins. Co. (1989, ED Va) 714 F Supp 203, 50 BNA FEP
Cas 391, 51 CCH EPD 39307.
Footnote 86. Aubrey v Aetna Life Ins. Co. (1989, CA6) 886 F2d 119, 11 EBC 1655, 50
830 Sex discrimination in providing medical and health benefits to pregnant

dependents
View Entire Section
The Pregnancy Discrimination Act (PDA) requirements concerning benefits for pregnant
dependents specifically state that a health insurance benefit plan does not have to cover
the pregnancy-related conditions of dependents (for example, daughters), as long as it
excludes the pregnancy-related conditions of the dependents of male and female
employees equally. 87 Also, employers do not have to provide the same level of
coverage for the pregnancy-related conditions of the spouses of male employees as it
provides for its female employees. Where the employer does provide coverage for the
medical conditions of the employees' spouses, however, it must provide the same level of
coverage for pregnancy-related conditions of the spouses of male employees as for all
other medical conditions of the spouses of female employees. 88 However, an
employer's medical insurance plan that excluded maternity benefits for both female
employees and the spouses of male employees discriminated against men in violation of
Title VII, because it excluded pregnancy-related medical expenses for the spouses of
male employees, but did not limit the medical coverage for spouses of female employees.
Furthermore, the fact that the employees voted to determine the policy coverage could
not shield the employer from liability. 89
Observation: The court's refusal to relieve the employer of liability on the basis of a
majority vote of the employees in Schiffman, coincides with Supreme Court decisions
in the area of sex discrimination in pension benefits, where the Court has refused to
allow an employer to escape liability because it offered nondiscriminatory options or
because no nondiscriminatory options were available on the market. 90
Also, an employer violated Title VII by limiting the health benefits of a laid-off female
employee to less than the full term of her pregnancy, while providing full coverage of
pregnancy-related expenses to the spouses of laid- off male employees. Citing the
EEOC's sex discrimination guidelines, 91 the court said that granting more coverage for
the pregnancy-related costs of male employees than for the costs of female employees,
amounted to unlawful sex discrimination. 92
Observation: The EEOC guideline cited in Hillesland appears to be inconsistent

with 29 CFR 1604, Appx, Q. 22, which says that Title VII does not require
employers to equalize the pregnancy-related benefits of spouses or other dependents
with the level of health benefits provided to employees. A possible interpretation of the
latter guideline that is not inconsistent with the former is that Title VII does not require
employers to equalize the pregnancy-related benefits of spouses or other dependents
with the level of health benefits provided to male employees.
Footnotes
Footnote 89. Schiffman v Cimarron Aircraft Corp. (1985, WD Okla) 615 F Supp 382, 6
Footnote 92. Hillesland v Paccar, Inc. (1986) 80 Or App 286, 722 P2d 1239, 7 EBC
1926, 41 CCH EPD 36683.
831 Effect of marital status on providing health insurance benefits for

pregnancy-related conditions
View Entire Section
As with other benefits conditioned by marital status under the PDA, 93 an employer
may not limit health insurance benefits for pregnancy-related conditions to married
employees if it does not also limit those benefits for any other medical condition to only
married employees. 94
Footnotes
832 Limitations on coverage for abortions in health insurance benefits

View Entire Section
Go to Supplement
The Pregnancy Discrimination Act (PDA) does not require employers to pay for health
insurance benefits for abortion, except where the life of the mother would be endangered
or where medical complications have arisen from an abortion. However, the statute does
not prevent an employer from providing abortion benefits. 95
According to the EEOC, the PDA's limitation requirements for abortion benefits with
respect to health insurance 96 mandate an employer to provide health insurance
coverage for the cost of complications during an abortion, but not for the abortion itself
unless the mother's life is endangered by the pregnancy. 97
Finally, if an employer chooses to provide health insurance benefits for abortions, either
directly or through a collective bargaining agreement, it must provide these benefits in
the same manner and to the same extent as for all other medical conditions. 98
Observation: The EEOC's interpretation appears to conflict with the plain language
of the PDA, which only requires health insurance benefits to be provided in two
abortion situations and permits, rather than directs, employers to provide such
additional benefits as they desire.
832 ----Limitations on coverage for abortions in health insurance benefits
[SUPPLEMENT]
Case authorities:
Term "related medical conditions" in 42 USCS 2000e(k) encompasses woman's
constitutional right to have abortion. Turic v Holland Hospitality (1994, WD Mich) 842 F
Footnotes
833 Effect of ADA on provision of health insurance benefits

View Entire Section
Under the Americans with Disabilities Act (ADA), an employer may not deny health
insurance coverage completely on the basis of a person's diagnosis or disability.
However, the Act does permit an employer to offer an insurance policy that limits
coverage for certain procedures or treatments, such as only a specified amount per year
for mental health coverage, a person who has a condition that requires such treatments
may not be denied coverage for other conditions such as a broken leg or heart surgery
based on the existence of the condition requiring the treatment covered by the limitation.
A limitation may be placed on reimbursements for a procedure or the types of drugs or
procedures covered, such as a limit on the number of x- rays or non-coverage of
experimental drugs or procedures. However, that limitation must apply to persons with
or without disabilities. In other words, all people with disabilities must have equal access
to the health insurance coverage that is provided by the employer to all employees.
Illustration: While limits may be placed on reimbursement for certain procedures

such as x-rays or on types of drugs, such as experimental drugs, those limitations must
be equally applied to individuals with and without disabilities. 99
The ADA does not affect preexisting condition clauses included in insurance policies
offered by employers. Thus, employers may continue to offer policies that contain
preexisting condition exclusions, even though they adversely affect people with
disabilities, so long as the clauses are not used as a subterfuge to evade the purposes of
the ADA.
Illustration: If a health insurance plan covered only five blood transfusions per year
for all employees, it would not be unlawful under the ADA simply because a
hemophiliac employee might require more than five. However, it would be unlawful to
limit to deny that employee coverage for other procedures, such as heart surgery or the
setting of a broken leg, even though additional blood transfusions may be required by
such procedures. 1
The fact that an individual's disability is either not covered by an employer's current
insurance plan, or the fact that the insurance premiums or workers' compensation cost
would increase if the disabled individual is hired are not legitimate discriminatory
reasons justifying disparate treatment. 2
Footnotes
834 ADA exception for certain health insurance plans

View Entire Section
The ADA does not forbid an insurer, hospital, medical service company, health
maintenance organization, or any other entity that administers benefit plans, or agents of
such entities, from underwriting, classifying, or administering risks that are based on or
are consistent with state law. 3 Furthermore, covered entities may establish, sponsor,
observe, or administer the terms of bona fide benefit plans based on such underwriting,
classifying, or administering of risks, 4 and may establish, sponsor, observe, or
administer the terms of bona fide benefit plans that are not subject to state laws
regulating insurance, 5 although this exception may not be used as a subterfuge to evade
the purposes of the Act. 6 Whether a provision is intended as a "subterfuge" to evade
the requirements of the statute is determined without regard to the date the plan or benefit
was adopted. 7
An employer or other covered entity cannot use this exception to deny a qualified
individual with a disability equal access to insurance or subject him to different terms or
conditions of insurance based on the disability alone, if the disability does not impose
increased risks. Such decisions, when not based on risk classification, must be made in
conformity with the nondiscriminatory requirements of the statute. 8
Illustration: A plan may not refuse to insure, limit the coverage available to an
individual, or charge a different rate for the same coverage solely because of a physical
or mental impairment except when based on sound actuarial principles or related to
actual or reasonably anticipated experience. 9
This provision should not be interpreted as subjecting self-insured plans to any state
insurance laws of general application that are otherwise preempted by the Employee
Retirement Income Security Act (ERISA). 10 Furthermore, this provision is not
intended to disrupt current regulatory structures for self- insured employers that establish,
observe, or administer benefit plans not subject to state laws that regulate insurance. It is
also not intended to disrupt a current nature of insurance underwriting or current
insurance industry practices in sales, underwriting, pricing, administrative and other
services, claims, and similar insurance related activities based on classifications of risks
as regulated by the state. 11
Footnotes

Footnote 7. 29 CFR Part 1630, Appendix, 1630.16(f).
6. Pension and Retirement Payments [835-850]
a. In General [835]
835 Generally
View Entire Section
Go to Supplement
Employers must administer pension and retirement payments in a nondiscriminatory
manner in order to avoid violating federal and state 12
job discrimination laws.
Pension and retirement benefits are regulated by Title VII. While almost all litigation of
pension and retirement plans under Title VII has arisen in the context of sex
discrimination claims, 13 the Supreme Court has noted that an employer cannot vary an
employee's pension contributions in accordance with the life expectancy of his racial
group. 14
However, there is no appreciable actuarial difference in life expectancy
based on race once an individual reaches pension age. 15 Furthermore, an employer
could provide earlier and more lucrative retirement benefits to employees in certain
occupational categories despite the potential adverse effect it had on black employees,
because the differences were not based on race, but on neutral and rational considerations
of the risks and demands associated with those unique positions. 16
Pension and retirement benefits are also regulated by the ADEA. 17
The EEOC's Equal Pay Act (EPA) regulations make it unlawful for an employer to have
a pension or retirement plan that differentiates on the basis of sex. 18 Also, differences
in retirement plans that rely on sex-based actuarial studies cannot be justified under the
Equal Pay Act's "factor other than sex" defense. 19
Caution: Pension and retirement payments may also be implicitly included under
any statute that implicitly or explicitly regulates all terms and conditions of
employment, 20 subject to the same exceptions applicable to all other terms and
conditions of employment. 21
Case authorities:
Title VII (42 USCS 2000e et seq.) sex discrimination action brought by former
employees was barred, based on res judicata, by earlier action brought by same plaintiffs
under antidiscrimination provision of ERISA (29 USCS 1140), because two causes of
action, which were based on same set of facts, were same. Snead v Goodyear Tire &
Rubber Co. (1994, ND Ala) 66 BNA FEP Cas 1556.
Where board of trustees of city's police pension fund denied application for admission by
diabetic police officer, although city argued that board was entity separate and apart from
city which city could not control, city had duty as officer's employer, regardless of
whether city actually managed fund, to reasonably accommodate officer by providing
him with pension benefits comparable to those enjoyed by non-disabled officers, and
therefore city was proper party to be sued under 504 of Rehabilitation Act (29 USCS
794). Holmes v City of Aurora (1995, ND Ill) 8 ADD 92.
Footnotes
Footnote 12.
State Aspects State job discrimination laws that specifically regulate pension and
retirement payments are discussed in the Employment Coordinator at EP- 21,540 et
seq. However, state job discrimination laws may not expressly refer to pension
benefits, but may, nevertheless regulate them if they explicity or implicitly cover all
terms and conditions of employment, subject to the exceptions that are applicable to all
terms and conditions. These topics are discussed generally at 701 et seq. and 268 et
seq., respectively, with appropriate references to state treatments. State job
discrimination laws that do not explicitly address medical and health insurance benefits
may alternatively include them in their coverage of fringe benefits generally or
pregnancy or older worker benefits. These matters are discussed at 801 et seq.,
discussed at 809 et seq., and discussed at 862 et seq., respectively, with
appropriate references to state treatments.
Annotation: Pension plan designed to induce early retirement of employees of certain
age as violation of Age Discrimination in Employment Act (29 USCS 621 et seq.)
or ERISA (29 USCS 1001 et seq.), 91 ALR Fed 296.
Forms: Allegations in complaintBy employees denied full benefits of pension plan
[29 USCS 1331; 29 USCS 216(b), 623, 626. 12 Federal Procedural Forms, L Ed,
Job Discrimination 45:292.
Footnote 13. 836.
Annotation: Variations in retirement, pension, or death benefit plans as unlawful
employment practice under 42 USCS 2000e-2(a), 35 ALR Fed 15.
Footnote 15. EEOC v Colby College (1978, CA1) 589 F2d 1139, 1 EBC 1771, 18 BNA
Footnote 16. Dobbs v Atlanta (1979, CA5) 606 F2d 557, 21 BNA FEP Cas 827, 21 CCH
EPD 30386.
Job discrimination laws permitting mandatory retirement under certain conditions are
Footnote 18. 29 CFR 1620.11(f).
Footnote 19. 29 CFR 1620.11(b), discussed at 725 et seq.
b. Sex Discrimination in Pension and Retirement Payments Under Title VII
[836-842]
(1). In General [836-838]
836 Sex-based differences in eligibility requirements

View Entire Section
Differences in eligibility for benefits under retirement or pension plans that are based on
an employee's sex have frequently resulted in Title VII violations. For instance, workers
have successfully demonstrated sex discrimination violations of Title VII, where:
female workers received full pensions at age 60 with 20 years of service, while male
employees had to work until age 65 with 25 years of service for full pension eligibility;
22
women received full pensions after 11 years of service, while men had to work until age
65 for full pension benefits; 23
males qualified for normal retirement benefits at age 50 after 20 years of service, while
females, who performed substantially equal work under different job titles, did not
qualify for normal retirement until age 60 and 25 years of service; 24
there was less of a benefit reduction for the early retirement of female workers than for
male workers. 25
An employer's early retirement plan discriminated against employees who, before the
enactment of the Pregnancy Discrimination Act in 1978, were required to take personal
leaves for pregnancy which were not credited toward early retirement eligibility, while
other employees could take temporary disability leaves for their medical incapacities
which were credited. Although the initial act of discrimination was not covered under
the PDA, the employer could be held liable for current discrimination resulting in a loss
of time credited for early retirement based on pregnancy. 26
Footnotes
Footnote 22. Rosen v Public Service Electric & Gas Co. (1973, CA3) 477 F2d 90, 5 BNA
Footnote 23. Chastang v Flynn & Emrich Co. (1976, CA4) 541 F2d 1040, 12 BNA FEP
Cas 1533, 12 CCH EPD 11003.
Footnote 24. Marcoux v Maine (1984, DC Me) 35 BNA FEP Cas 553, affd (CA1) 797
Dec 6370; EEOC Decision No. 77-13 (1977) CCH EEOC Dec 6566.
Footnote 26. Pallas v Pacific Bell (1991, CA9) 940 F2d 1324, 91 CDOS 6696, 14 EBC
1057, 56 BNA FEP Cas 1022, 57 CCH EPD 40917, cert den (1992, US) 116 L Ed 2d
815, 14 EBC 2176, 57 CCH EPD 41202.
837 Sex-based benefits and contributions prohibited

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The Supreme Court has held that sex-based employee benefits are not permissible at
either the pay-out or pay-in stage of a retirement plan under Title VII. Thus, the statute
requires equality with regard to both payments from and contributions to retirement
plans. 27
Observation: Title VII's sex discrimination prohibitions that regulate all fringe
benefits 28 apply with equal force to sex discrimination in pension and retirement
benefits.
Footnotes
The effect of an employer's reliance on sex-based actuarial data, despite its offer of, or
lack of, nondiscriminatory options, and the effects of an employee's independent
selection of a discriminatory plan, and of the McCarren-Ferguson Act on Title VII
violations are discussed at 838 et seq.
838 Employer's reliance on sex-based actuarial data prohibited

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If an employer's pension plan requires female employees to make larger pension
contributions than male employees to obtain the same benefits, it violates Title VII
despite the fact that the respective contributions are based on actuarial tables that show
that women generally live longer than men. The use of statistically valid actuarial data is
merely the equivalent of Title VII's prohibition against acting on "stereotyped"
generalizations of the sexes, instead of a bona fide occupational qualification. 29
Correspondingly, an employer's annuity-based retirement plan, that takes equal
contributions from all employees, but pays lower benefits to female than male employees
based on similar actuarial data, also violates Title VII's sex discrimination prohibition. In
prohibiting this use of sex-based actuarial tables, the Supreme Court rejected the
argument that the tables were not based on sex, but on longevity, since longevity is
dependent on many variables, of which sex is only one. 30
Footnotes
Bona fide occupational qualifications are discussed, generally, at 269 et seq.
(2). Available Defenses [839-842]
839 Employer's offer of nondiscriminatory options

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An employer's offer of nondiscriminatory option as an alternative to a sexually
discriminatory pension plan that utilizes sex-based actuarial data 31 will not insulate it
from Title VII liability. For example, where an employer provided optional retirement
plans that gave employees the opportunity to select a nondiscriminatory fixed benefit or a
variety of sexually discriminatory annuities, the employer remained liable for the
consequences of any discriminatory option offered. Liability was not affected by the fact
that the discriminatory terms were set exclusively by the insurance company. Nor did it
matter that nondiscriminatory options were also available or voluntarily chosen by
employees, since Title VII does not cover only those aspects of the employment
relationship over which the employee has no choice. 32
Footnotes
Footnote 31. 838.
840 Employer's lack of nondiscriminatory options

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When an employer controls and selects retirement options for employees from among
insurers on the open market, it cannot avoid Title VII liability for sex discrimination
because no insurer provides nondiscriminatory benefits. The Supreme Court has held
that if all available pension plans on the open market condition benefits or contributions
in conformity with sex- based actuarial tables 33 an employer can abide by Title VII
only by either providing a nondiscriminatory benefit on its own, or by not providing the
benefit at all. 34
Footnotes
Footnote 33. 838.
841 Employees' selection of discriminatory plans on open market

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The Supreme Court has stated that an employer is not liable for its employees' selection
of a sexually discriminatory retirement option on the open market if the employer does
not select or control the options to any extent. 35
Footnotes
842 McCarren-Ferguson Act does not supersede Title VII

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The McCarren-Ferguson Act prohibits any federal statute from being construed to
invalidate, impair, or supersede any state law regulating the business of insurance, unless
the federal statute specifically relates to that business. 36 Thus, the question has been
raised as to whether Title VII's sex discrimination provisions, which do not specifically
relate to the business of insurance, can be applied consistently with the
McCarren-Ferguson Act, when state insurance boards, acting under regulatory or
statutory authority, approve sexually discriminatory retirement and pension plans offered
by insurance companies. Answering this question in the affirmative, the Supreme Court
held that the McCarren-Ferguson Act is not a defense for an employer that selects
unlawful retirement plans provided by third party insurers. 37 Title VII does not
prevent insurers from offering state-approved pension plans based on sexually
discriminatory actuarial data, 38 it only prevents employers from using such plans.
Therefore, Title VII does not address or establish requirements for insurers. 39
842 ----McCarren-Ferguson Act does not supersede Title VII [SUPPLEMENT]
Practice Aids: Supreme Court's views as to validity, construction, and application of
McCarran-Ferguson Act (15 USCS 1011-1015), concerning regulation of business
of insurance by state or federal law. 125 L ED 2nd 879.
Footnotes
Footnote 37. 839.
Footnote 38. 838.
c. Title VII Remedies for Sex Discrimination in Pension and Retirement Pay Cases
[843-846]
843 When is a retroactive remedy for a discriminatory plan appropriate

View Entire Section
Retroactive relief for victims of a sexually discriminatory pension plan is not appropriate
if the employer could reasonably assume that the plan was lawful and retroactive relief
imposes a financial burden that jeopardizes the operation of the fund. Under those
circumstances, an employer is only required to provide equal benefits with respect to
contributions collected after the date of the court's judgment. 40
Norris does not apply to persons who retired before the date of that decision, since it was
the first case to extend the principle of nondiscrimination to sex-based retirement
payments. 41 Until then, there had been conflicting views about whether only
sex-based contributions in retirement plans were prohibited. Also, to apply unisex
benefits pre- Norris would undermine the fiscal integrity of many retirement plans, since
the liabilities associated with pension benefits are established when the benefits are set,
and it would be inequitable to retroactively increase these benefits. Even increasing only
prospective payments would be tantamount to giving retroactive effect to Norris, since
that would alter the payment structure of a fixed benefit plan. 42
The EEOC will seek a retroactive adjustment of sexually discriminatory benefits derived
from contributions made after the Supreme Court's Manhart decision in 1978, 43 only
where the employer has continued using sex-based benefits tables after Norris.
Otherwise, individuals who retire after Norris only have a right to receive sex-neutral
benefits to the extent that these come from post- Norris contributions. 44
Footnotes

Footnote 41. 837.
Footnote 42. Florida v Long (1988) 487 US 223, 101 L Ed 2d 206, 108 S Ct 2354, 9
Footnote 43. 838.
As to rules specifically applicable to retroactive remedies involving defined contribution
pension plans and defined benefit pension plans, see 844 and , see 845.
844 Retroactive remedies for discriminatory defined contribution plans

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When retroactive relief is appropriate under Title VII, 45 one court has held that
bringing up the level of pension benefits payable to the disadvantaged sex to that of the
advantaged sex is not necessary in a defined contribution plan as long as there is no
substantial reduction in the benefits of one sex through the imposition of sex-neutral
actuarial tables. 46
The Supreme Court, in a case where this type of plan was not in
issue, 47 has indicated that discriminatory defined contribution pension violations may
permit retroactive relief, if no additional funding by the employer is required and contract
rights are not violated.
According to the EEOC, retroactive relief might be appropriate where a discriminatory
defined contribution pension plan does not fix the amount of benefits. In that case,
benefits should be sex-neutral regardless of when contributions were made, unless a
minimal return on those contributions was guaranteed. To the extent that a defined
contribution plan guarantees a minimal return on contributions that were made before
Norris, those benefits do not have to be derived from unisex tables. 48
Discriminatory defined contribution plans where the employer failed to apply unisex
tables after August 1, 1983, to all pension benefits, regardless of whether they were
derived from pre- Norris or post- Norris contributions, allows a victim of sex
discrimination to have unisex tables applied to all future benefits and to receive backpay,
calculated from a conciliation or court order back to two years prior to the filing of the
charge. The remedy should reflect the difference between the benefits that the victim
received and those that he or she would have received under unisex benefit tables. 49
Footnotes
Footnote 45. 843.
Footnote 46. Spirt v Teachers Ins. & Annuity Asso. (1984, CA2) 735 F2d 23, 5 EBC
Footnote 49. EEOC Policy Statement No. N-915.037A.
845 Retroactive remedies for discriminatory defined benefit plans

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When retroactive relief is appropriate, 50 one court has held that bringing up the level of
pension benefits payable to the disadvantaged sex to that of the advantaged sex is
required retroactively in a defined benefit plan, so as not to abrogate the contract rights
and expectations of employees. 51
Where former employees seek back pension benefits or adjustments of futurebenefits that
are derived in part from past contributions, the EEOC has taken the following positions
on retroactive remedies for defined benefit plans: (1) if the victim retired before August
1, 1983, he or she will not be entitled to any relief because liability may not be imposed
for pre- Norris conduct, (2) if the victim retired after August 1, 1983, and the employer
immediately adopted unisex tables after Norris for all benefits derived from post-August
1, 1983 contributions, the victimwill not be entitled to any relief for the employer's
previous use of sex-based tables, (3) if the victim retired after August 1, 1983, and the
employer failed to apply unisex tables to all benefits derived from contributions made
after August 1, 1983, or unjustifiably delayed changing the tables, the victim may obtain
the following relief: (a) application of unisex tables to future benefits derived from
contributions made after October 1, 1978, the effective date of Manhart; (b) backpay
dating back from a conciliation agreement or court order to two years prior to the filing
of the charge, which reflects the difference between the benefits that the victim received
and those the victim would have received under unisex tables, but only to the extent that
the benefits are derived from contributions made after October 1, 1978. 52
Following EEOC Policy Statement No. 915.037A, and using August 1, 1983 as the
relevant liability date, a court held that male employees who retired before then could not
recover. In addition, male employees retiring after that date could not recover an
increased pension for service prior to Title VII's effective date. 53
Footnotes
Footnote 50. 843.
Footnote 51. Spirt v Teachers Ins. & Annuity Asso. (1984, CA2) 735 F2d 23, 5 EBC
Footnote 52. EEOC Policy Statement No. N-915.037A.
Footnote 53. EEOC v First Nat. Bank (1990, ND Ill) 53 BNA FEP Cas 564, 29 BNA WH
Cas 1427.
846 Prospective remedies

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Prospective relief for sexually discriminatory pension and retirement payments under
Title VII does not require raising the females' benefits to the level of payments the males
received prior to the suit, but only requires that benefits be prospectively calculated on a
gender-neutral basis. While a nondiscriminatory calculation may result in males being
entitled to a smaller benefit than they previously received, the prospective application of
such a calculation does not impair a male's legitimate expectation of benefits. 54
Footnotes
Footnote 54. Norris v Arizona Governing Committee for Tax Deferred Annuity &
Deferred Compensation Plans (1986, CA9) 796 F2d 1119, 7 EBC 1913, 41 BNA FEP
Cas 820, 40 CCH EPD 36371.
d. Age Discrimination in Pension Payments [847- 850]
847 Requirements of the ADEA

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Go to Supplement
The ADEA does not require an employer to maintain a pension plan. 55
While most aspects of pension and retirement payments must comply with the age-based
cost considerations applicable under the ADEA's benefit plan exception, 56 the Older
Workers Benefit Protection Act amendments to the statute expressly allow an employee
pension benefit plan, as defined by 3(2) of ERISA, to establish a minimum age as a
condition of eligibility for early or normal retirement benefits. 57
Illustration: A pension plan may provide that benefits are not payable until an
individual reaches the age of 55, 60, or 65. 58 Those amendments also permit such
plans to provide payments that constitute the subsidized portion of an early retirement
benefit, 59 or payments of social security supplements for plan participants that begin
before, and terminate at the age when the participants would be eligible to receive
reduced or unreduced old-age insurance benefits under the Social Security Act, if the
supplements do not exceed such old-age insurance benefits. 60
Regulations first issued by the Labor Department, 61 and subsequently adopted by the
EEOC 62 set forth special rules regarding older workers' participation in, 63 and
accrual of benefits under 64 pension plans.
847 ----Requirements of the ADEA [SUPPLEMENT]
Practice Aids: Pension interference does not constitute violation of the ADEA: Hazen
Paper Co. v. Biggins [ 123 LEd2d 338 (1993)], 19 Emp Rel LJ 187 (1994).
Case authorities:
Bona fide, as used in 29 USCS 623(f)(2), means that plan exists and pays benefits.
Libront v Columbus McKinnon Corp. (1993, WD NY) 832 F Supp 597.
Subterfuge, as used in former 29 USCS 623(f)(2), referred to intentional discrimination
against older workers. Libront v Columbus McKinnon Corp. (1993, WD NY) 832 F Supp
597.
Footnotes
Footnote 55. Rothenberger v Douglas County (1983, DC SD) 586 F Supp 210, 35 BNA
Footnote 57. 29 USCS 623(1)(1)(A).
Footnote 58. S Rept 101-263, 4/5/90, p. 20.
Footnote 59. 29 USCS 623(1)(1)(B)(i).
Footnote 60. 29 USCS 623(1)(1)(B)(ii).
Footnote 61. Former 29 CFR 860.120.
Footnote 62. 29 CFR 1625.10.
Footnote 63. 848.

Footnote 64. 849.
848 Participation in pension plan by older workers

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Go to Supplement
Employers covered by ERISA must allow every employee to participate in a pension
plan, regardless of the employee's age. 65 However, for covered employers, for plan
years beginning before January 1, 1988, a defined benefit plan may require that if an
employee is hired within five years of the plan's normal retirement date, the employee's
normal retirement age may be extended to a date five years from the date of his initial
participation in the plan. 66
The ADEA benefit plan exception 67 regulations, based on ERISA provisions effective
prior to the 1988 plan year, prohibit an employer that provides a defined contribution
plan to exclude an employee who is hired before normal retirement age. Older workers
may be excluded from a defined benefit plan only if they are less than five years from
normal retirement age when hired. An employee more than five years from normal
retirement age may not be excluded from a defined benefit plan unless the exclusion is
supported by cost considerations. 68
848 ----Participation in pension plan by older workers [SUPPLEMENT]
Case authorities:
Decision by employer to fire older employee solely because employee is close to vesting
(by virtue of employee's years of service, not employee's age) in pension benefits does
not constitute discriminatory treatment on basis of age. Hazen Paper Co. v Biggins (1993,
US) 123 L Ed 2d 338, 113 S Ct 1701, 93 CDOS 2835, 93 Daily Journal DAR 4916, 16
EBC 1881, 61 BNA FEP Cas 793, 61 CCH EPD 42186, 7 FLW Fed S 161, costs/fees
proceeding (US) 61 USLW 3803.
Footnotes
Footnote 65. 26 USCS 410(a)(2); 29 USCS 1052(a)(2). See RIA's Pension
Coordinator 23,000 et seq.
Footnote 66. 26 USCS 410(a)(2), prior to amendment by P.L. 99- 509, 9203(a)(2);
29 USCS 1052(a)(2), prior to amendment by P.L. 99-509, 9203(a)(1).
Footnote 68. 29 CFR 1625.10(f)(1)(iv)(A).
849 Benefit accrual for older workers under pension plans

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Go to Supplement
Under the ADEA, an employer, employment agency, or labor organization, or any
combination of those entities, may not establish or maintain a defined benefit plan that
ceases or reduces benefit accruals for an employee who has attained a certain age. 69 It
is also unlawful to establish or maintain a defined contribution plan that stops
contributions, or reduces the rate at which amounts are allocated to an employee who has
attained a certain age. 70 However, the statute allows the observance of an employee
pension benefit plan if it imposes an age-neutral limitation on the amount of benefits
provided or limits the number of years of service or participation which are taken into
account for purposes of determining benefit accrual. 71 In determining benefit accruals,
the subsidized portion of an early retirement benefit may be disregarded. 72
A plan can meet the accrual requirements and provide a normal retirement age as
described in ERISA and the Internal Revenue Code. 73 In addition, if an employee has
attained normal retirement age under the plan as of the end of any plan year, and the
distribution of benefits under the plan has begun with respect to such employee, the
requirements of continued accrual of benefits is treated as satisfied to the extent of the
actuarial equivalent of the in-service distribution of benefits. If the distribution of
benefits has not begun for the employee who has reached normal retirement age, and the
benefit payments have not been suspended (while the employee is in service after benefit
distribution has started), the requirement is satisfied to the extent of any adjustment in the
benefit payable under the plan during the plan year that is attributable to the delay in the
distribution after normal retirement age. Regulations will be provided by the IRS to apply
these rules. 74
These requirements do not apply with respect to a highly compensated employeeas
defined by 414(q) of the Internal Revenue Codeto the extent provided by IRS
regulations to bar discrimination in favor of highly compensated employees. 75
For purposes of the ADEA accrual requirements, "employee pension benefit plan,"
"defined benefit plan," "defined contribution plan," and "normal retirement age" all mean
the same as when those terms are used in ERISA. 76
The ADEA's accrual requirements only apply with respect to plan years beginning on or
after January 1, 1988, and with respect to employees who have one hour of service in a
covered plan year. For collectively bargained plans, the requirements must take effect by
plan years, beginning on or after January 1, 1990. 77
The EEOC has issued proposed regulations regarding employers' compliance with
pension plan benefit accrual requirements under 29 USCS 623(j) and for pre-1989
accruals. 78
849 ----Benefit accrual for older workers under pension plans [SUPPLEMENT]
Case authorities:
Although precedents construing phrase "subterfuge to evade ADEA" no longer govern 29
USCS 623(f)(2) because 1990 amendment to statute excised term "subterfuge," such
body of law may properly be consulted to give meaning to term "subterfuge" as it appears
in 623(j)(2). Knight v Georgia (1993, CA11 Ga) 992 F2d 1541, 62 BNA FEP Cas 4, 61
CCH EPD 42348, 7 FLW Fed C 454.
Footnotes
Footnote 69. 29 USCS 623(j)(1)(A).
Footnote 70. 29 USCS 623(j)(1)(B).
Footnote 71. 29 USCS 623(j)(2).
Footnote 73. 29 USCS 623(j)(8). See RIA's Pension Coordinator 23,000 et seq.
Footnote 75. 29 USCS 623(j)(5). See RIA's Pension Coordinator 23,000 et seq.
Footnote 76. 29 USCS 623(j)(9)(A). See RIA's Pension Coordinator 48,000 et seq.
Footnote 77. 29 USCS 623 note (P.L. 99-509, 9204(a)).
Footnote 78. Prop 29 CFR 1625.21; 52 Fed Reg 45360, 11/27/87.
850 When is a retroactive remedy for a discriminatory plan appropriate

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Retroactive relief for the victims of an age discriminatory pension plan is not appropriate
when the employer had legitimate grounds to deny participation on the basis of age and
had made alternative retirement contributions on the nonparticipants' behalf. Thus,
employees who were excluded from a city's pension plan because they were over age 45
on the date of their hire were not entitled to retroactive credit to bring their benefits to the
level of employees who were hired after the limitation was removed. The city had a
rational basis for limiting participation in the plan to persons under age 45 at the time of
their hiring, and it had made social security contributions on the nonparticipants' behalf
while the limitation was still in force. Therefore, to allow these nonparticipants
retroactive credit under the pension plan would give them an unjust windfall and put an
unfair financial burden on the city. 79
850 ----When is a retroactive remedy for a discriminatory plan appropriate
[SUPPLEMENT]
Case authorities:
Sections 9201 and 9202(a) of the Omnibus Budget Reconciliation Act of 1986 (OBRA)
(adding 29 USCS 623(i)(1) and 1054(b)(1)(H)(i)), which amended the Age
Discrimination in Employment Act of 1967 (ADEA) (29 USCS 621 et seq.) and the
Employee Retirement Income Security Act of 1974 (ERISA) (29 USCS 1001 et seq.),
respectivelythe effect of 9201 and 9202(a) being to prohibit age-based cessations of
benefit accruals and age-based reductions in benefit accrual rates under employee benefit
plansdo not apply retroactively, in that (1) the language of 9204(a)(1) of OBRA (29
USCS 623 note), which provides that the amendments made by 9201 and 9202
apply only with respect to plan years beginning on or after January 1, 1988, and only to
employees who had 1 hour of service in any such plan year, compels the conclusion that
the amendments are prospective; and (2) even if it were proper to disregard the express
time limitations in 9204(a)(1) in favor of more general language, 9201 and 9202(a)
cannot be construed to require retroactive application on the ground that to deny an
employee credit for service years during which the employee was excluded from a plan
based on age, even though the exclusion was lawful at the time, would be to reduce the
rate of benefits accrual for that employee, since a reduction in total benefits due is not the
same thing as a reduction in the rate of benefit accrual. Lockheed Corp. v Spink (1996,
US) 135 L Ed 2d 153, 96 CDOS 4110, 96 Daily Journal DAR 6643, 20 EBC 1257, 70
BNA FEP Cas 1633, 68 CCH EPD P 44043, 9 FLW Fed S 660.
Footnotes
Footnote 79. Snair v Clearwater (1992, MD Fla) 787 F Supp 1401, 15 EBC 1040.
7. Bonuses and Profit Sharing [851-853]
851 Generally
View Entire Section
Employers must operate bonus and profit sharing plans in a nondiscriminatory fashion in
order to avoid violations of federal and state 80 job discrimination laws. In most
instances these laws do not single out such plans from the other terms and conditions of
employment 81 or other fringe benefits 82 they purport to regulate. However, sex
discrimination in bonuses and profit sharing is explicitly forbidden under Title VII. 83
Caution: Bonus and profit sharing plans explicitly or implicitly covered under
discriminatory prohibitions applicable to all terms and conditions of employment
would also be subject to the same exceptions applicable to all terms and conditions. 84
Likewise, such plans explicitly or implicitly covered under discriminatory prohibitions
applicable to all fringe benefits would be subject to all exceptions applicable to such
benefits, including those specifically pertaining to pregnancy 85 and older workers.
86
Not only the determination of whether and to whom bonuses are given, but also
inequality in the amount of particular bonuses may raise discrimination issues. For
example, in a race discrimination claim under Title VII, the EEOC rejected an employer's
explanation that dependability and length of service, rather than race, were the criteria for
evaluating the amount of a Christmas bonus, in light of the fact that a black employee
who was described as "one of the most dependable employees" received a $250 bonus,
while a white employee with eight fewer years of service received a $1000 bonus. 87
Footnotes
Footnote 80.
State Aspects State job discrimination laws may not expressly refer to bonuses or
profit sharing benefits, but may, nevertheless regulate them if they explicitly or
implicitly cover all terms and conditions of employment, subject to the exceptions that
are applicable to all terms and conditions. These topics are discussed generally at
701 et seq. and 268 et seq., respectively, with appropriate references to state
treatments. State job discrimination laws that do not explicitly address bonuses or
fringe benefits may alternatively include them in their coverage of fringe benefits
generally, which is discussed at 801 et seq., with appropriate references to state
treatments.
Footnote 83. 852.
FEP Cas 866.
852 Sex discrimination under Title VII
View Entire Section

EEOC regulations specifically include bonus and profit sharing plans as "fringe benefits"
88 protected against sex discrimination under Title VII, 89 and also prohibit an
employer from differentiating between men and women in bonus and profit sharing
plans. 90 For example, Title VII was violated where an employer's profit sharing plan
paid female employees who terminated their employment before retirement the lump sum
of their vested interests immediately upon leaving employment, but only paid similarlysituated males that amount upon reaching age 50. 91
However, differentiations are not illegal if they can be explained in terms of a legitimate
nondiscriminatory reason. For instance, male claims adjusters alleged sex discrimination
because an employer provided an attendance bonus to only the eligible clerical
employees, who all happened to be female. This bonus plan did not discriminate on the
basis of sex, however, because the clerical employees (unlike the claims adjusters) were
heavily regulated with regard to the time periods they were required to be in the office,
and had a serious absenteeism problem which the bonus plan was designed to address.
Thus, the limited scope of the employer's bonus offering was based on a legitimate
nondiscriminatory business reason. 92
Footnotes
Footnote 91. EEOC Decision No. DC 68-9-183E (1969) CCH EEOC Decisions 6022, 2
BNA FEP Cas 119.
853 Age discrimination under the ADEA

View Entire Section
As long as all of the requirements of the ADEA's employee benefit plan exception are
met, 93 a profit sharing plan, such as one that was financed by profits and designed to
provide retirement benefits, is entitled to the exception. 94
Even when the employee benefit plan exception does not apply, an employer's bonus plan
will not violate the statute if there is no age component involved in determining which
employees qualify for a bonus or the amounts to which each are entitled. For example,
an employee who received a lower rated sales bonus than he received in the previous
year was not a victim of age discrimination under the ADEA. The court found that he
was not disadvantaged by the age-related fact that he had previously announced his
intention to retire. Instead, the employer demonstrated that he did not qualify for a
higher rated bonus plan under the new age-neutral policy. 95
Footnotes
Footnote 94. Brennan v Taft Broadcasting Co. (1974, CA5) 500 F2d 212, 8 BNA FEP
Cas 665, 8 CCH EPD 9668.
Footnote 95. Castaneda v The Sherwin-Williams Company (SD Tex) No. L- 83-7, 7/3/86.
8. Disability Payments [854-858]
854 Requirement of equal treatment for pregnancy and other disabilities

View Entire Section
Under the Pregnancy Discrimination Act (PDA), all pregnant employees must receive
equal benefit treatment to those employees receiving benefits for all other reasons who
are similar in their ability or inability to work. 96 Therefore, benefits for long-term or
permanent disabilities resulting from pregnancy-related conditions must be provided to
the same extent as they are provided for other disabling conditions. 97 Thus,
employers must provide installment purchase disability insurance because of a
pregnancy-related disability, if it is provided for other disabilities. 98 Likewise, if
income maintenance benefits are provided for temporary disabilities, they must be
provided for pregnancy-related disabilities for as long as the employee is unable to work
due to her pregnancy, subject to any other limitations imposed on employees unable to
work because of other disabilities. 99 Also, an employer may not require an employee
who has a pregnancy-related disability to first exhaust her vacation benefits before
receiving disability payments, if that requirement is not imposed on employees who have
other disabling conditions. 1
Employers can be liable for violating the PDA's requirement even if the disability plan is
administered by an independent entity 2 and contrary requirements in state laws 3 and
cost considerations 4 will not provide a defense to such discrimination under Title VII.
Footnotes

Footnote 97. 29 CFR 1604.10(b); 29 CFR 1604, Appx, Q. 16.
Footnote 2. 855.
Footnote 3. 857.
Footnote 4. 856.
855 Employer liability for pregnancy discrimination in disability payment plans

administered by others
View Entire Section
While the Pregnancy Discrimination Act (PDA) amendment to Title VII does not require
an employer to take affirmative steps to remedy pregnancy discrimination in disability
payments by other entities, the employer remains independently liable for such
discrimination, depending on the nature and degree of its involvement. For example, an
employer was liable when a disability plan funded equally by an employer and its
employees, and admininstered by an independent employee benefit association, excluded
pregnancy benefits from its coverage. The employer played a significant management
role and an even greater financial role in the association's affairs, and represented
association membership as a benefit of employment. However, the association was not
liable, since it was neither an employer, nor a joint employer. 5
Conversely, an employer that only sponsored a credit union and facilitated its
membership and general operations, but did not affirmatively and actively participate in
establishing or maintaining its disability policies, was not liable for the credit union's
policy of excluding pregnancy from a disability plan. 6
Similarly, a private employer was not liable for pregnancy-based discrimination because
of its mandatory and limited role in a state-administered disability program that provided
lower benefits for pregnancy than for other temporary disabilities, since the employer did
not voluntarily and actively participate in the state's discriminatory actions. The employer
merely acted as a broker or intermediary for the state, 7 and the state was liable for
administering the discriminatory program. 8
Observation: An employer has a greater risk of being held liable under Title VII for
a pregnancy discrimination in disability payments administered by a third party where
the employer retains control over the devisement of the plan and has simply delegated
its authority to another to operate the plan. Where, as in Barone, the employer has no
choice but to contribute to a plan and has no authority to change it, no liability will be
attributed to the employer.
Footnotes
Footnote 5. EEOC v Wooster Brush Co. Employees Relief Asso. (1984, CA6) 727 F2d
Footnote 6. Morgan v Safeway Stores, Inc. (1989, CA9) 884 F2d 1211, 50 BNA FEP Cas
1339, 51 CCH EPD 39314.
Footnote 7. Barone v Hackett (1982, DC RI) 3 EBC 1705, 28 BNA FEP Cas 1765, 30
CCH EPD 33075.
Footnote 8. Barone v Hackett (1984, DC RI) 602 F Supp 481, 40 BNA FEP Cas 961, 35
CCH EPD 34838.
856 Effect of cost considerations on pregnancy discrimination in disability

payments
View Entire Section
Since an employer's increased cost does not constitute a defense to sex discrimination
benefit claims under Title VII, 9 and the Pregnancy Discrimination Act (PDA)
amendments to Title VII made pregnancy discrimination part of the statute's sex
discrimination prohibition, 10 it follows that cost considerations are not a defense to
claims of pregnancy discrimination in disability payments under Title VII. Furthermore,
state and local employers are under the same obligations as private employers under Title
VII with regard to disability benefits for pregnancy-related medical conditions. 11
However, constitutional and Title VII standards for sex discrimination are different
insofar as legitimate cost considerations are a valid defense in evaluating the
constitutionality of government actions under the Equal Protection Clause, while cost is
not a defense for either public or private employers under Title VII. 12
Footnotes
857 Effect of state laws on Title VII's pregnancy discrimination prohibition in

disability payments
View Entire Section
Since all state laws that are in conflict with Title VII's sex discrimination prohibition in
providing benefits are preempted by the federal law, 13 and since pregnancy
discrimination is part of Title VII's sex discrimination prohibition, 14 it follows that
state laws that allow employers to provide less disability insurance for pregnancy-related
temporary disabilities than for other temporary disabilities do not constitute a valid Title
VII defense. The employer is still required to adhere to Title VII's equal treatment
requirement for pregnancy-related and other disabilities. 15
Footnotes
Footnote 15. 29 CFR 1604, Appx, Q. 19, discussed at 854.
State Aspects: State job discrimination laws that specifically regulate disability
payments are discussed in the Employment Coordinator at EP-21,657 et seq.
However, state job discrimination laws may not expressly refer to disability benefits,
but may, nevertheless regulate them if they explicitly or implicitly cover all terms and
conditions of employment, subject to the exceptions that are applicable to all terms and
conditions. These topics are discussed generally at 701 et seq. and 268 et seq.,
respectively, with appropriate references to state treatments. State job discrimination
laws that do not explicitly address disability benefits may alternatively include them in
their coverage of fringe benefits generally or pregnancy or older worker benefits.
These matters are discussed at 146 et seq., discussed at 809 et seq., and
discussed at 814 et seq., respectively, with appropriate references to state
treatments.
858 Age discrimination in disability payments under the ADEA

View Entire Section
Under EEOC regulations adopted by the Older Workers Benefit Protection Act
(OWBPA) for purposes of applying the ADEA's benefit plan exception, 16 there cannot
be a cost justification for completely denying long-term disability benefits on the basis of
age if employees who are disabled at younger ages are entitled to those benefits.
However, it is not unlawful to stop long-term disability benefits and coverage on the
basis of a non-age factor, such as a recovery from disability. 17
However, reductions in the level or duration of long-term disability benefits may be
justified on the basis of age-related cost considerations. Thus, an employer may avoid the
higher costs of long-term disability coverage for older employees by either reducing the
level of benefits available to them, or by reducing the duration but not the level of
benefits available to older disabled employees. 18 Reductions cannot be supported by
general data demonstrating age-related costs without proof of a connection between that
data and the actual schedule of disability benefits. Therefore, an employer's evidence that
the cost of insuring against disability increases with age, and that the duration-of-benefits
schedule in the employer's plan was the same one used by most insurers, was insufficient
to justify an age-based reduction. 19
However, notwithstanding cost considerations, the OWBPA permits an employer to
reduce long-term disability benefits by any pension benefits not attributable to employee
contributions that the individual voluntarily elects to receive, 20 or for which an
individual who has reached either age 62 or normal retirement age, whichever is later, is
eligible to receive. 21
While it is permissible to make a monetary deduction to long-term disability benefits by
certain pension benefits, employers may not abrogate any rights an employee may have
that are associated with disability, such as recall rights and continued pension accruals, if
those rights are otherwise protected under the ADEA. Furthermore, an offset to
long-term disability benefits is not allowed if it requires the individual's involuntary
retirement. 22 For example, reducing the long-term disability benefit of one who has a
short-term income need and no other income other than his pension may result in
constructively forcing that person to retire to meet his financial needs. This kind of
involuntary retirement would not be permitted under the ADEA. 23
Footnotes
Footnote 17. 29 CFR 1625.10(f)(1)(ii).
Footnote 18. 29 CFR 1625.10(f)(1)(ii); S Rept 101-263, 4/5/90, p. 19.
Footnote 19. EEOC v Mt. Lebanon (1988, CA3) 842 F2d 1480, 46 BNA FEP Cas 857,
46 CCH EPD 37890.
Footnote 20. 29 USCS 623(1)(3)(A).
Footnote 21. 29 USCS 623(1)(3)(B).

9. Layoff and Severance Pay [859-861]
859 Permissible reductions to severance pay based on a contingent event

unrelated to age
View Entire Section
Discrimination claims involving layoff and severance pay predominantly arise under the
federal ADEA.
Caution: Layoff and severance pay plans explicitly or implicitly covered under
discrimination prohibitions applicable to all terms and conditions of employment 24
would also be subject to the same exceptions applicable to all terms and conditions, 25
including those involving seniority systems. 26 Likewise, such plans may be
explicitly or implicitly covered under discriminatory prohibitions applicable to all
fringe benefits, 27 and would be subject to all exceptions applicable to such benefits,
including those pertaining to pregnancy 28 and older workers. 29
Under the Older Workers Benefit Protection Act (OWBPA) amendments to the ADEA,
30 employees entitled to severance payments as a result of a contingent event unrelated
to age, such as a plant closing or layoff, may have their severance payments reduced by
the value of any "retiree health benefits" 31 provided to an employee who is eligible for
an immediate pension. 32 When pension plan participants only qualify for an actuarially
reduced immediate pension benefit, the deduction allowable from severance pay for
"retiree health benefits" may be reduced by the same percentage reduction as is imposed
on the pension benefit. 33
Illustration: If an individual who receives "retiree health benefits" also receives a

pension that is actuarially reduced by 20%, the value of that individual's "retiree health
benefits" may be reduced by 20% before any deduction from severance benefits is
taken. 34
Also, when "retiree health benefits" are provided, severance pay may be reduced by
additional pension benefits made available solely because of the contingent event,
provided that the pension benefits make the individual eligible for an immediate
unreduced pension. 35
Illustration: An employer may deduct additional pension benefits other than "retiree
health benefits" from severance when a plant closes, if the employee would be entitled
to 80% of a normal retirement pension, and as a result of the shutdown the individual
receives "retiree health benefits" and becomes entitled to an amount equal to 100% of a
normal retirement pension. Then, the additional 20% of value of the pension benefit as
well as the value of the "retiree health benefits" may be offset against severance pay.
36
Furthermore, severance pay includes that portion of supplemental unemployment
compensation benefits (SUB benefits) as defined in 501(c)(17) of the Internal Revenue
Code of 1986, that: (1) constitute additional benefits of up to 52 weeks; (2) have the
primary purpose and effect of continuing benefits until an individual becomes eligible for
an immediate and unreduced pension, and; (3) are discontinued when the individual
becomes eligible for such a pension. 37 Thus, employers may use these SUB benefits to
provide short-term income maintenance for individuals who need a payment between the
time they are laid-off and when they qualify for their full pension. As such, they are in
effect a form of severance and classified as such for offset purposes. 38
Other than the exceptions noted above, any other coordination of severance and any
age-related benefit is unlawful under the ADEA. There are two reasons for permitting
these exceptions in narrow circumstances. First, "retiree health benefits" are not
currently subject to ERISA's vesting, accrual, and insurance provision, and rights to these
benefits are derived only from personnel policies, collective bargaining agreements, or
the contractual terms of the plan itself. Furthermore, these benefits are targeted to older
workers. By allowing the coordination of severance and retiree health benefits, Congress
believes it may encourage more employers to provide these benefits. 39 An employee
who suffers an incorrect reduction in severance pay which is miscalculated under the
statutory standards 40 is entitled to seek a remedy of specific performance under the
OWBPA. 41
State aspects: State job discrimination laws regulating layoff or severance pay are
discussed in the Employment Coordinator at EP-21,720. However, state job
discrimination laws may not expressly refer to layoff and severance benefits, but may,
nevertheless regulate them if they explicity or implicitly cover all terms and conditions
of employment, subject to the exceptions that are applicable to all terms and
conditions. These topics are discussed generally at 701 et seq. and 268 et seq.,
respectively, with appropriate references to state treatments. State job discrimination
laws that do not explicitly address layoff and severance pay benefits may alternatively
include them in their coverage of fringe benefits generally or pregnancy or older
worker benefits. These matters are discussed at 801 et seq., discussed at 809 et
seq., and discussed at 814 et seq., respectively, with appropriate references to state
treatments.
Footnotes

Footnote 31. 860.
Footnote 32. 29 USCS 623(1)(2)(A)(i).
Footnote 33. 29 USCS 623(1)(2)(B).
Footnote 34. S Rept 101-263, 4/5/90, p. 24.
Footnote 35. 29 USCS 623(1)(2)(A)(ii).
Footnote 36. S Rept 101-263, 4/5/90, p. 24.
Footnote 37. 29 USCS 623(1)(2)(C).
Footnote 38. S Rept 101-263, 4/5/90, p. 25.
Footnote 39. S Rept 101-263, 4/5/90, p. 24.
Footnote 40. 860.
Footnote 41. 29 USCS 623(1)(F).
860 Calculating how retiree health benefits may be deducted or offset from
severance benefits
View Entire Section
Permissible reductions from severance pay based on a contingent event unrelated to age
42 are specifically regulated under the Older Workers Benefit Protection Act
amendments to the ADEA. First, "retiree health benefits" are defined as benefits
provided under a group health plan covering retirees under which:
for individuals under the age of 65, the benefits are at least comparable to those
provided under the federal Medicare program at the time the benefits become payable as
a result of the contingent event.
for individuals aged 65 and older, the benefits available are at least comparable to a plan
that provides benefits with one-fourth (25%) the value of those provided under Medicare.
43 Additionally, the package of benefits provided by the employer must be as so
described. 44
A benefit package that does not provide benefits identical to Medicare would be
considered "comparable" if the overall package of benefits was generally equivalent. The
reason for the lower threshold for retiree health benefits for individuals aged 65 and older
is that Medicare already provides a package of benefits to these retirees, and benefits that
are duplicative of Medicare must be disregarded. 45
To calculate the appropriate amount of the reduction of severance pay, retiree health
benefits are given a value based on the age of the individual at the time of the contingent
event unrelated to age, 46 such as a shutdown or layoff. If the employer's obligation to
provide retiree health benefits is of limited duration, an offset of $3,000 is allowed for
each year that the employee is under the age of 65 while benefits are provided, along
with an offset of $750 for each year the employee is age 65 and over while the benefits
are provided. 47
Illustration: If a 63-year-old employee was entitled to retiree health benefits for five
years after separation from employment, the employer may offset $8,250 against
severance ($3,000 times 2 plus $750 times 3). 48
If the employer's obligation to provide retirement health benefits is for the employee's
lifetime, the value of the benefits for retirees under age 65 at the time of the contingent
event is set at $48,000, and for retirees age 65 and older, it is set at $24,000. 49
These values are effective on October 16, 1990 and, after one year from that date, will be
adjusted annually according to the medical component of the Consumer Price Index for
all-urban consumers published by the Department of Labor. 50
In calculating the value of retiree health benefits, an employer must subtract the
percentage value of any premium contributions made by the employee. 51
Illustration: If an employee who is under age 65 contributes $100 of the required

monthly premium of $400, and is promised benefits for life at the time of separation,
the employer may deduct from severance pay $36,000 (75% of $48,000). 52
Footnotes
Footnote 42. 859.
Footnote 43. 29 USCS 623(1)(2)(D).
Footnote 44. 29 USCS 623(1)(2)(D)(iii).
Footnote 45. S Rept 101-263, 4/5/90, p. 25.
Footnote 46. 29 USCS 623(1)(2)(E)(iii).
Footnote 47. 29 USCS 623(1)(2)(E)(i).
Footnote 48. S Rept 101-263, 4/5/90, p. 25.
Footnote 49. 29 USCS 623(1)(2)(E)(ii).
Footnote 50. 29 USCS 623(1)(2)(E)(iii).
Footnote 51. 29 USCS 623(1)(2)(E)(iv).

Footnote 52. S Rept 101-263, 4/5/90, p. 26.
861 Additional severance pay for older employees

View Entire Section
An employer may offer more severance pay to older employees than to other workers if it
has a reasonable basis to conclude that those benefits will counteract problems related to
age discrimination, and the increased severance pay is not used as a means to accomplish
practices prohibited by the ADEA. 53
For example, an employer that is forced to conduct a major reduction in force may give
additional severance pay and benefits to employees who are age 60 and over, regardless
of length of service, if it has a reasonable basis to believe that such employees will find it
harder to obtain new employment because of their age and, therefore, will have a greater
need for such benefits. 54
Footnotes
10. Life Insurance and Death Benefits [862-864]
862 Sex discrimination restrictions on administration of life insurance and death

benefits
View Entire Section
In conformity with the reasoning applied in cases finding that pension and retirement
payments tied to sex-based actuarial data constitutes unlawful sex discrimination under
Title VII, 55 an employer's life insurance plan requiring equal contributions from male
and female employees, but giving males smaller death benefits due to their shorter life
expectancy, constitutes a violation of Title VII. 56
Also, an employer's death benefit plan that did not provide benefits for surviving male
spouses unless they were dependent on the deceased female employee or were physically
disabled was sexually discriminatory under Title VII, since it did not place the same
restrictions on benefits for surviving female spouses. 57
State aspects: State job discrimination laws may make express reference to life
insurance plans and death benefits. 58 However, state job discrimination laws may not
expressly refer to disability benefits, but may, nevertheless regulate them if they
explicity or implicitly cover all terms and conditions of employment, 59 subject to the
exceptions that are applicable to all terms and conditions. 60 State job discrimination
laws that do not explicitly address disability benefits may alternatively include them in
their coverage of fringe benefits generally, 61 or pregnancy, 62 or older worker
benefits. 63
Footnotes
6563.
Annotation: Variations in retirement, pension, or death benefit plans as unlawful
employment practice under 42 USCS 2000e-2(a), 35 ALR Fed 15.
6114.
Footnote 58. These provisions are discussed in the Employment Coordinator at 21,760
et seq.
Footnote 59. Discussed generally at 701 et seq., with appropriate references to state
treatments.
treatments.
treatments.
treatments.
treatments.
863 Age restrictions on participation in life insurance plans

View Entire Section

Under EEOC regulations adopted by the Older Workers Benefit Protection Act for
purposes of applying the ADEA's benefit plan exception, 64 an employer may not deny
life insurance coverage on the basis of age, but may stop such coverage when an
employee is separated from employment. 65
An employer does not violate the ADEA if it allows all employees to participate in a
contributory life insurance plan within a specified time from the date of their
employment, and thereafter limits participation to only those employees under a certain
age who can demonstrate insurability. 66
Footnotes
Footnote 65. 29 CFR 1625.10(f)(1)(i).
Footnote 66. International Brotherhood of Electrical Workers, Local 1439 v Union
Electric Co. (1985, CA8) 761 F2d 1257, 6 EBC 1629, 37 BNA FEP Cas 1346, 37 CCH
EPD 35269.
864 Permissible age-based reductions in life insurance

View Entire Section
purposes of applying the ADEA's benefit plan exception, 67 an employer may reduce
life insurance coverage after a specified age, usually 65, if the reductions are justified by
cost considerations. Using the "benefit-by-benefit" cost comparison analysis, which
allows individual benefit adjustments based on comparisons of benefit costs at different
age levels, reductions are allowed if they are equal to the increased costs of coverage for
the employee's specific age bracket, based on the average costs over a period of up to five
years. 68
Footnotes
Footnote 68. 29 CFR 1625.10(f)(1)(i).
11. Lodging, Housing, and Other Allowances [865- 867]
865 Lodging allowances

View Entire Section
Under Title VII, an employer has been prohibited from discriminating in providing
lodging to employees. Thus, an airline committed sex discrimination when male cabin
attendants were given single rooms on flight lay overs while female cabin attendants
were required to double up in rooms. 69 Additionally, an employer that provided rental
allowances that varied depending on the employee's sex and marital status violated Title
VII's ban on sex discrimination by paying a married female less of an allowance than a
married male of equivalent tenure. 70 Furthermore, a religious publishing house violated
Title VII when it provided a female employee with a lesser housing allowance than
comparably situated male employees. Enforcement of Title VII did not violate the free
exercise clause of the First Amendment, since the employer admitted that its religious
beliefs did not require discrimination against women. The establishment clause was not
violated either, since enforcement of the statutory prohibition would not excessively
entangle the government in church affairs. 71
Observation: According to the EEOC, conditioning the availability of fringe benefits

on an employee's status as a "head of household" or "principal wage earner" is prima
facie sex discrimination under Title VII. 72
Caution: Even though lodging, housing, and other allowances are not directly
addressed by the federal or state job discrimination laws, they may be regulated as
benefits that are part of the terms, conditions, and privileges of employment under laws
that implicitly or directly regulate all terms, conditions, and privileges of employment.
73 Furthermore, these benefits may be regulated by broader provisions dealing with a
variety of fringe benefits, 74 or benefits only involving pregnancy 75 or older
workers. 76
Footnotes
Footnote 69. Laffey v Northwest Airlines, Inc. (1984) 238 App DC 400, 740 F2d 1071,
34585.
Footnote 70. EEOC (U. S. A.) v Pacific Press Pub. Asso. (1979, ND Cal) 482 F Supp
FEP Cas 1596, 29 CCH EPD 32817.
Footnote 71. EEOC v Pacific Press Publishing Asso. (1982, CA9) 676 F2d 1272, 28

866 Company housing

View Entire Section
Employers may not discriminate in providing company housing for employees under
Title VII. Therefore, Title VII is violated where an employer provides better company
housing for white employees than for black employees, 77 and the employer cannot
escape its statutory liability by subsequently deeding the unequal company housing to
employees and employee groups. 78
Discriminatory housing may not be provided by government contractors under the
obligation imposed by Executive Order 11246 to provide nondiscriminatory facilities. 79
Footnotes
Footnote 77. Williams v Yazoo Valley-Minter City Oil Mill, Inc. (1978, ND Miss) 469 F
Footnote 78. EEOC Decision No YB19C-144 (1969) 2 BNA FEP Cas 308, CCH EEOC
Dec 6082.
867 Uniform cleaning allowances

View Entire Section
Title VII has been found to prohibit an employer from discriminating between the sexes
in providing uniform cleaning allowances to employees. For example, an airline
committed sex discrimination when male cabin attendants received $13 per quarter as a
cleaning allowance, while their female counterparts received no such allowance. 80
However, an employer did not violate the Equal Pay Act (EPA) by providing cleaning
allowances for the uniforms of mostly male kitchen employees but not providing such
allowances to mostly female counter workers, because the allowances were not based on
the sex of the employee. The purpose of providing cleaning allowances to kitchen
employees was to symbolize and reinforce the employer's commitment to careful and
sanitary food preparation. Furthermore, those allowances did not constitute "wages"
under the Act. 81
Caution: This case was decided prior to the EEOC's more expansive definition of
which benefits constitute "wages" under the EPA, under which all fringe benefits are
now included. 82
Footnotes
Footnote 80. Laffey v Northwest Airlines, Inc. (1984) 238 App DC 400, 740 F2d 1071,
34585.
Footnote 81. Donovan v K F C Services, Inc. (1982, ED NY) 547 F Supp 503, 30 BNA
Footnote 82. As to "wages" generally, see 871 et seq.
12. Tuition Assistance [868]
868 Generally
View Entire Section
While discrimination in tuition assistance is not explicitly addressed by any state job
discrimination law, it is specifically regulated by federal law under Title IX of the
Education Amendments of 1972. 83 This statute's sex discrimination prohibitions
explicitly apply to grants of tuition assistance by employers in educational programs
receiving federal financial assistance. 84
Caution: While tuition assistance benefits may not be directly addressed by other
federal and state job discrimination laws, they may be subject to laws that regulate all
terms, conditions, and privileges of employment. 85 Under these circumstances,
tuition assistance benefits would be subject to all exceptions applicable to all terms and
conditions of employment. 86 Furthermore, they may be implicitly regulated by
broader provisions that deal with a variety of fringe benefits, 87 or benefit provisions
that only concern pregnancy 88 or older workers. 89
Footnotes
Footnote 83. 26.

Footnote 84. 34 CFR 106.51(b)(8).
C. Time Off Benefits [869-891]
Research References
20 USCS 1681; 29 USCS 623, 630; 42 USCS 2000e
28 CFR Parts 41, 42; 29 CFR Parts 1604, 1620, 1625, 1630; 34 CFR Part 106; 41
CFR Part 60-20
Employment Coordinator EP-15,001 et seq., EP-21,307, EP- 21,360 et seq.
1. Vacations [869, 870]
869 Generally
View Entire Section
Federal and state job discrimination laws do not explicitly single out vacation policies
apart from the other terms and conditions of employment they cover. 90
EEOC's sex discrimination guidelines expressly include leave as a "fringe benefit." 91
Observation: Other job discrimination laws, including state laws, may also
implicitly regulate vacation policies as part of broader fringe benefit provisions, 92 or
as part of benefit provisions specifically addressing pregnancy 93 or maternity leave
94 benefits.
Challenges to an employer's vacation policies and practices may arise under either the
disparate treatment or the disparate impact method of proving discrimination. 95 For
example, a disparate treatment claim of religious discrimination under Title VII was
successfully brought against an employer's policy of requiring all employees to take their
vacations during a two-week plant shutdown, coupled with a policy prohibiting leaves for
religious reasons for more than two days. Such policies were illegal as applied to an
employee who belonged to a church which required its members to attend an annual
religious convention. 96
Observation: An employer's policy of allowing employees to use vacation leave for

religious observances may satisfy Title VII's reasonable accommodation requirement.
97
Similarly, colleges and universities could not disqualify workers solely on the basis of
age from eligibility for sabbatical leave, since that would constitute disparate treatment
under the ADEA. 98
Observation: Age-based distinctions in an employer's vacation policy may qualify

for the ADEA's bona fide employee benefit plan exception. 99
However, an employer may have a legitimate nondiscriminatory reason that protects it
from liability under challenges that arise under either method of proving discrimination.
For instance, in a disparate impact claim of racial discrimination under Title VII, despite
the fact that an employer provided more paid vacation days to a predominantly white
group of salaried employees than to a predominantly black group of hourly workers, it
did not violate the statute because its policy of giving all salaried employees two weeks
of vacation, but only one week to the hourly workers, was justified. Salaried employees,
unlike hourly workers, were not compensated for working overtime. 1
Footnotes
Footnote 95. As to the theories of proof in discrimination cases, see 2699 et seq.
6206.
Footnote 97. As to reasonable accommodation of religious beliefs and practices, see
141 et seq.
Footnote 98. Wage and Hour Op Letter WH-248, 11/30/73.
Footnote 1. Williams v Yazoo Valley-Minter City Oil Mill, Inc. (1978, ND Miss) 469 F
870 Age discrimination

View Entire Section
purposes of applying the ADEA's benefit plan exception, 2 the exception does not apply
to paid vacations because a reduction in these benefits would not be justified by
significant cost considerations. 3 An employer's four-week cap on vacation time, as
part of an overall program for implementing necessary operating cost reductions, was
challenged by senior employees as intentional age discrimination, motivated by the
employer's intent to offend older workers to the extent that they would resign and
correspondingly relinquish profit-sharing benefits. However, without direct evidence of
discriminatory animus, such as statements made by decision-makers to impose the cap,
the fact that management knew the cap would displease senior workers was insufficient
to attribute a discriminatory motivation to their actions, given the legitimate business
reason for the decision. 4
An across-the-board cut in vacation benefits, when instituted as part of a cost-cutting
program and not as a legacy of deliberate discrimination against older employees or as
the product of inertia or insensitivity in adhering to age-discriminatory policies, also is
not subject to disparate impact challenge under the ADEA. Some adverse impact on
older employees may be unavoidable since, by virtue of their age, they have greater
benefits than younger employees and costs cannot be reduced without making deeper
cuts in their benefits. 5
Footnotes
Footnote 3. 29 CFR 1625.10(a)(1); S Rept 101-263, 4/5/90, p. 18.
Footnote 4. Finnegan v Trans World Airlines, Inc. (1991, ND Ill) 767 F Supp 867, 55
Footnote 5. Finnegan v Trans World Airlines, Inc. (1992, CA7) 967 F2d 1161, 59 BNA
FEP Cas 568.
2. Holidays [871, 872]
871 Generally
View Entire Section

An employer must comply with federal discrimination laws in granting employees time
off for holidays. EEOC guidelines on sex discrimination under Title VII expressly
include leave as an employee benefit, regulated by Title VII as a part of the "terms,
conditions, or privileges of employment". 6
Observation: Holiday benefits are also regulated by other job discrimination laws
that cover all terms, conditions, andprivileges of employment. 7
Footnotes
Footnote 7. As to terms, conditions, and privileges of employment, generally, see 701
et seq.
872 Religious discrimination in holiday leave

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Go to Supplement
Under Title VII, an employer's holiday leave policies and practices must not favor one
religion over another. Thus, a Protestant employee's allegations that the employer
granted paid religious holidays to members of certain religions, which resulted in their
receiving more paid holidays than he did and in his having to work more overtime and
accepting undesirable assignments, stated a claim of religious discrimination under Title
VII. 8
Observation: Title VII requires that holiday leave policies and practices treat all
religions equally. Such policies need not be drawn either so broadly or narrowly as to
suit every employee's religious needs, but must provide a reasonable accommodation to
the religious needs of employees who request such accommodations. 9
872 ----Religious discrimination in holiday leave [SUPPLEMENT]
Footnotes
Footnote 8. Ka Nam Kuan v Chicago (1983, ND Ill) 563 F Supp 255, 32 BNA FEP Cas
566, 33 CCH EPD 34093.
Footnote 9. As to the reasonable accommodation of the religious needs of employees, see
141 et seq.
3. Leaves of Absence, In General [873, 874]
873 Generally
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Leaves of absence must be provided in a nondiscriminatory manner. Although employers
generally do not compensate employees during such leaves, employees on leave are often
given the right to reinstatement at their pre- leave level of compensation and may receive
other rights. Employers that award these rights must not discriminate on any protected
basis.
Leaves of absence must be provided in compliance with federal discriination laws.
EEOC guidelines on sex discrimiantion under Title VII expressly include leave as an
employee benefit, 10 regulated by Title VII as a part of the "terms, conditions, or
privileges of employment.
Title IX of theEducation Amendments of 1972., which prohibits sex discrimination in
employment under any educational program or activity receiving federal financial
assistance, 11 applies to leaves of absence. 12 The Rehabilitation Act of 1973
similarly forbids discrimination in leaves of absence. 13 Under the Equal Pay Act,
leave is defined as a fringe benefit, 14 and discrimination is prohibited in regard to such
benefits. 15
The Age Discrimination in Employment Act (ADEA) prohibits age discrimination in
terms, conditions, or privileges of employment. 16 Although the ADEA and its
regulations do not expressly refer to leaves of absence, the prohibition encompasses all
employee benefits. 17
The Americans with Disabilities Act (ADA) forbids discrimination against a qualified
individual on the basis of disability with respect to elaves of absence. 18 However,
leave policies that are uniformly applied to all employees do not violate the ADA simply
because they do not address the special needs of individuals with disabilities, and the
ADA does not entitle individuals with a disability to more paid leave than nondisabled
employees. 19
Uniformly applied leave policies are not subject to challenge under the adverse impact
method of proving discrimination forbidden by the ADA. "No- leave" policies, such as
those forbidden leave during the first six months of employment, are similarly not subject
to an adverse impact challenge. However, even an employer with a "no-leave" policy
may have to consider providing leave as a reasonable accommodation unless it would
impose an undue hardship on its operations. Furthermore, if an employer reduces the
amount of leave for discriminatory reasons, it violates the Act. 20
Practice Aids: Pre-emption of wrongful discharge cause of action by civil rights laws.
21 ALR5th 1.
Footnotes
Footnote 12. 34 CFR 106.51(b)(6).
Footnote 13. 28 CFR 42- 510(b)(5).
Footnote 14. 29 CFR 1620.11(a).
Footnote 15. 29 CFR 1620.11(b).
Footnote 20. 29 CFR Part 1630, Appendix, 1630.5
874 Discrimination in offering reinstatement following leaves of absence

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An employer may not discriminate on any protected basis in imposing conditions on
reinstatement from leaves of absence. However, an employer did not violate the ADEA
when it failed to rehire an employee who had taken a five-month leave of absence,
granted with only a commitment of the employer's best effort to rehire, because her
position had been filled before she sought to return to it. Younger employees who also
had taken leaves were treated similarly, and the plaintiff was not entitled to more
favorable treatment because of her age. 21
874 ----Discrimination in offering reinstatement following leaves of absence
[SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 21. EEOC v Sperry Corp. (1988, CA10) 852 F2d 503, 47 BNA FEP Cas 433,
47 CCH EPD 38143.
4. Maternity and Family Responsibilities [875- 885]
875 Generally
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Employer policies concerning time off for maternity and other family responsibilities are
regulated by federal law. Title VII requires only equal treatment in time off for pregnant
employees in comparison to other employees similar in their ability or inability to work.
22
Government contractors must provide time off for childbearing purposes in certain
circumstances under Executive Order 11246. 23
The nondiscrimination standard set forth in the federal Pregnancy Discrimination Act
(PDA) amendment to Title VII of the Civil Rights Act of 1964 governs all aspects of an
employer's leave policies for pregnant employees, including the availability of maternity
leave for both pregnancy- related medical incapacities and childcare purposes. Pregnant
employees returning from maternity leave also have the right to be treated equally to
other employees who are similar in their ability or inability to work, with regard to
reinstatement. 24
While most litigation involving maternity leaves under Title VII arises in the context of
sex or pregnancy discrimination prohibitions, the statute's other discriminatory
prohibitions also apply to such leaves. For example, Title VII was violated where an
employer granted black female employees only six weeks off for pregnancy leave, while
permitting white female employees six months off for pregnancy leave. 25
State aspects: Many states explicitly require that time off and associated benefits be
made available not only for pregnancy and maternity related reasons, but also for
paternity, adoption, childcare, and family medical reasons. 26
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 22. 876.
Footnote 23. 881.
Footnote 24. 885.
Pregnancy discrimination claims based on an employer's fetal protection policies are
discussed in the context of health and physical fitness job requirements at 440 et seq.
Footnote 25. Williams v Owens- Illinois, Inc. (1979, ND Cal) 469 F Supp 70, 25 BNA
FEP Cas 1478, affd in part and revd in part on other grounds (CA9) 665 F2d 918, 27
BNA FEP Cas 1273, 28 CCH EPD 32404, 33 FR Serv 2d 424, mod on other grounds
and reh den (CA9) 28 BNA FEP Case 1820, cert den (US) 74 L Ed 2d 283, 103 S Ct
Denial of maternity and family responsibility leave in the context of an employer's
obligation under federal discrimination laws to make such leave available on a
nondiscriminatory basis for handicapped and non-handicapped employees alike is
Annotation: Pregnancy leave or maternity leave policy, or lack thereof, as unlawful

employment practice violative of Title VII of the Civil Rights Act of 1964 (42 USCS
2000e et seq.), 27 ALR Fed 537.
Footnote 26. These rules are discussed in the Employment Coordinator at B-15,000 et
seq.
876 Requirement that maternity leave must be treated equally to leaves for other
disabling conditions
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Go to Supplement
Under the nondiscrimination requirement of the federal Pregnancy Discrimination Act
amendment to Title VII concerning all fringe benefits, 27 employment policies relating
to the commencement and duration of leave, availability of leave extensions, accrual of
seniority and other benefits and privileges during leave, and reinstatement after leave,
must apply equally to pregnancy-related and other disabilities. 28 Similarly, the
OFCCP's regulations implementing Executive Order 11246 prohibit federal contractors
from penalizing women in their conditions of employment because they require time
away from work for childbearing. 29
Caution: Unlike the EEOC's interpretation of the PDA requirements under Title VII,
the OFCCP requires more than equal treatment of pregnant employees requesting
maternity leaves under certain circumstances. 30
An employer's maternity leave policy is facially discriminatory if the plaintiff can show
that it applies only to women or pregnant women. The employer can then rebut this
presumption of discrimination by proving either that the policy: (1) affects all employees
equally and is thus neutral despite its appearance, or (2) it is justified as a bona fide
occupational qualification. 31
The equal treatment requirement for maternity leaves, like other nondiscrimination
requirements of Title VII, is subject to both the disparate treatment and the disparate
impact methods of proof. 32 Therefore, even facially neutral policies which apply
equally to all leaves of absence violate Title VII if they unequally burden pregnant
employees without a business justification. 33 However, an employer's neutral policy
of counting each day of any leave, including maternity leave, as a day of absence for the
purpose of computing excessive absenteeism could not be shown to disproportionately
hinder women who became pregnant. For purposes of assessing an employee's absence
record, all long-term leaves of absence, including maternity leaves, were considered less
serious than incidental absences. 34
876 ----Requirement that maternity leave must be treated equally to leaves for
other disabling conditions [SUPPLEMENT]

(42 USCS 2000e(k)). 130 ALR Fed 473.
Footnotes
Footnote 28. 29 CFR 1604.10(b).
Footnote 29. 41 CFR 60-20.3(g)(1).
Footnote 30. 881.
Footnote 31. Maddox v Grandview Care Center, Inc. (1986, CA11) 780 F2d 987, 39
As to bona fide occupational qualifications generally, see 268 et seq.
Footnote 32. As to the theories of proof in job discrimination actions, see 2699.
Footnote 33. Nashville Gas Co. v Satty (1977) 434 US 136, 54 L Ed 2d 356, 98 S Ct
Footnote 34. Eblin v Whirlpool Corp. (1985, ND Ohio) 36 BNA FEP Cas 1632.
877 Validity of state statutes requiring specific amounts of maternity leave

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Go to Supplement
A state statute that requires specific amounts of maternity leave for pregnant employees
is not preempted by, and does not conflict with, the federal Pregnancy Discrimination Act
amendment to Title VII, even though the state statute provides pregnant employees a
benefit not granted to other temporarily disabled employees. The Act does not compel
employers to treat pregnant employees better than other workers, since the benefits
mandated by the statute may also be provided to other disabled employees. 35
Nevertheless, Title VII permits favorable benefits for female employees only for the
period of actual physical disability, and not for conditions unrelated to pregnancy or
childbearing. 36
877 ----Validity of state statutes requiring specific amounts of maternity leave

[SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 35. California Federal Sav. & Loan Assoc. v Guerra (1987, US) 93 L Ed 2d
Footnote 36. Schafer v Board of Public Education (1990, CA3) 903 F2d 243, 12 EBC
878 Restrictions on mandatory maternity leave based on ability to work

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Under the EEOC's interpretation of the Pregnancy Discrimination Act (PDA) amendment
to Title VII, a female employee must be permitted to work during her pregnancy so long
as she is able to perform her job. 37 Therefore, it was a violation of the PDA to set
mandatory leave dates for pregnant employees without considering each individual
employee's ability to work while pregnant. 38
Mandatory maternity leaves have been found to be lawfully based on legitimate business
reasons or a bona fide occupational qualification (BFOQ), 39 in light of expert medical
testimony regarding pregnant employees' conditions, and employers were allowed to
mandate maternity leave:
after the 20th week of pregnancy; 40
after the 28th week of pregnancy; 41
at the end of the seventh month of pregnancy; 42
25 days before the delivery date. 43
However, a BFOQ was not shown by an intermediate care facility for mentally retarded
persons that placed a pregnant houseparent on unpaid medical leave at a time when she
was capable of performing her job without difficulty. 44

878 ----Restrictions on mandatory maternity leave based on ability to work
[SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 37. 29 CFR Part 1604, Appx, Q.8.
Footnote 38. Thompson v Board of Education (1981, WD Mich) 526 F Supp 1035, 32
BNA FEP Cas 412; Somers v Aldine Independent School Dist. (1979, SD Tex) 464 F
Annotation: Mandatory maternity leave rules or policies for public school teachers as
constituting violation of equal protection clause of Fourteenth Amendment to Federal
Constitution, 17 ALR Fed 768.
Footnote 39. As to exceptions generally, see 268 et seq.
Footnote 40. Re National Airlines, Inc. (1977, SD Fla) 434 F Supp 249, 14 BNA FEP
Cas 1806.
Footnote 41. Burwell v Eastern Air Lines, Inc. (1978, ED Va) 458 F Supp 474, 17 BNA
FEP Cas 1686, 18 CCH EPD 8759, affd in part and revd in part on other grounds (CA4)
6412.
Footnote 43. Satty v Nashville Gas Co. (1974, MD Tenn) 384 F Supp 765, 10 BNA FEP
Cas 73, 9 CCH EPD 9919, affd (CA6) 522 F2d 850, 11 BNA FEP Cas 1, 10 CCH EPD
10359, affd in part and vacated in part on other grounds 434 US 136, 54 L Ed 2d 356,
Footnote 44. Carney v Martin Luther Home, Inc. (1987, CA8) 824 F2d 643, 44 BNA FEP
Cas 683, 43 CCH EPD 37236.
879 Restrictions on mandatory maternity leave that are not placed on other leave
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Go to Supplement
While the Pregnancy Discrimination Act (PDA) amendment to Title VII restricts
mandatory maternity leaves to only pregnant employees who are unable to perform their
jobs, 45 it permits an employer to use the same procedure applicable to all
determinations of when employees are able to work, for this purpose. Correspondingly,
it prohibits an employer from singling out pregnancy-related conditions for special
procedures in determining an employee's ability to work. 46 Furthermore, any unequal
treatment of pregnancy as opposed to another temporary medical incapacity, for the
purpose of mandating leave, has been found to violate Title VII, even when it does not
directly address the respective employees' abilities to work. Thus, an employer's policy
that required pregnant teachers to either take mandatory unpaid leaves or be terminated
after the third month of pregnancy violated Title VII, since the policy did not apply to
temporarily disabled men. 47 Similarly, a school district's setting of mandatory leave
dates for pregnant employees could not be justified by administrative convenience,
because the district was often forced to deal with unexpected leaves due to other types of
disabilities. 48
879 ----Restrictions on mandatory maternity leave that are not placed on other
leave [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 45. 878.
Footnote 47. Somers v Aldine Independent School Dist. (1979, SD Tex) 464 F Supp 900,
BNA FEP Cas 412.
880 Requirement that maternity leave be equally available under all leave policies
View Entire Section

Go to Supplement
Under the equal treatment standard of the Pregnancy Discrimination Act, 49 employers
may not place more stringent conditions on female employees who want time off for
maternity reasons than on other employees wishing to take leave for other purposes. 50
For example, requiring a doctor's statement concerning a pregnant employee's inability to
work before granting leave is permissible if such statements are also required for
employees affected by other disabling conditions. 51 Also, an employer's policy that
requested pregnant employees as well as all other employees who anticipated disability
leave, to inform the employer as soon as they became aware that such leave would be
necessary, was entirely consistent with the requirements of Title VII. 52
The question of the availability of maternity leave often arises in the context of time off
required to recover from pregnancy-related medical incapacities under an employer's sick
or disability leave policies. In such circumstances, employers violate the PDA if leaves
are granted to all workers for all health-related reasons, except recovery for
complications due to pregnancy. 53 However, an employer's "sick time" policy that
required medical proof of incapacity for paid absences of up to five months, whether
caused by pregnancy or another disability, did not violate the PDA, because it treated all
disabilities equally under its sick leave policy. 54
The availability of maternity leave on an equal basis becomes a more complicated issue
when the leave is sought not only for recovery from a medical incapacity, but also for
child care purposes. For example, an employer violated the PDA by limiting leaves for
pregnancy-related reasons to three months but allowing indefinite sick leave for other
medical incapacities, and not informing the plaintiff that she could take a combined
childcare/illness leave for more than three months. 55 Similarly, an employer's policy of
allowing pregnant employees to choose whether they wanted to take paid sick leave for
the period of their medical incapacitation due to pregnancy, or take unpaid leave for both
incapacity and subsequent child care, but not both, would violate Title VII if it had a
disparate impact 56 on pregnant employees. 57
880 ----Requirement that maternity leave be equally available under all leave
policies [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 49. 876.
Footnote 50. Greenspan v Automobile Club of Michigan (1980, ED Mich) 495 F Supp
Footnote 52. Mazzella v RCA Global Communications, Inc. (1986, SD NY) 642 F Supp
1531, 41 BNA FEP Cas 1533, affd without op (CA2) 814 F2d 653, 46 BNA FEP Cas
1638.
Footnote 53. St. John v G. W. Murphy Industries, Inc. (1976, WD NC) 407 F Supp 695,
Footnote 54. EEOC v Southwestern Electric Power Co. (1984, WD Ark) 591 F Supp
Footnote 55. Maddox v Grandview Care Center, Inc. (1986, CA11) 780 F2d 987, 39
Footnote 57. Scherr v Woodland School Community Consol. Dist. (1988, CA7) 48 BNA
881 Availability of maternity leave as affecting employer obligations

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Under the EEOC's interpretation of the requirements of the Pregnancy Discrimination
Act (PDA) amendment to Title VII, the availability of leave for pregnancy-related
reasons must be treated the same as all other reasons for leave under the employer's
applicable leave policies. 58 The Commission also recognizes that an employee who is
terminated for taking leave when no leave or insufficient leave is available under any
existing employer policy has been treated equally for Title VII purposes unless it can be
demonstrated that the employer's action has a disparate impact on one sex and is not
justified by a business reason. 59 For example, an employer's policy of not permitting
employees to take sick leave during their first year of employment had a disparate impact
on women and therefore violated Title VII. The disparate impact arose because many
women were out of work for reasons relating to pregnancy or childbirth, a cause of
absence that did not apply to men. Therefore, women were eleven times more likely to
be fired because of the sick policy than men. 60
The OFCCP interprets the sex discrimination prohibition in Executive Order 11246 to
require covered government contractors to consider childbearing as a justification for a
leave of absence for a reasonable period of time when, under the contractor's leave
policies, the employee would qualify for leave. 61 However, in contrast to the EEOC's
policy on Title VII, the OFCCP also requires contractors to consider childbearing as a
reasonable justification for leave for a reasonable period of time even when the employer
has no leave policy of any type. 62
Observation: The OFCCP requirements under Executive Order 11246 exceed the
PDA's equality requirements insofar as they require time off for pregnant employees
when no time off is required for other disabled employees under any leave policy, and
the lack of time off has not been shown to have a sexually discriminatory adverse
impact. 63
881 ----Availability of maternity leave as affecting employer obligations
[SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 58. 880.
Footnote 59. 29 CFR 1604.10(b).
Footnote 60. U.S. EEOC v Warshawsky & Co. (1991, ND Ill) 768 F Supp 647, 56 BNA
Footnote 61. 41 CFR 60- 20.3(g)(1).
Footnote 62. 41 CFR 60-20.3(g)(2).
Footnote 63. Other differences between the requirements of Title VII and Executive
Order 11246 with respect to an employee's right to service credits during a maternity
leave, the duration of such leave, and reinstatement following a maternity leave,are
882 Extending antidiscrimination requirements for maternity leave to childcare

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Unlike the equal treatment required for maternity leaves taken to recover from
pregnancy-related medical conditions and incapacities, 64 it is unclear whether the

Pregnancy Discrimination Act (PDA) requires an employer to grant an employee time off
for childcare after she is physically able to work. One view is that childcare is a function
or condition which is not peculiar to one sex, so that the PDA does not require an
employer to provide child-rearing leave beyond the time leave is necessary to recover
from a medical incapacity. 65 The Seventh Circuit has held that leave policies
influencing only the decision to remain at home with a newborn child after a
pregnancy-related disability has ended fall outside the scope of the PDA. The choice to
provide post-disability parental care is not the inevitable consequence of a medical
condition related to pregnancy. A leave policy that does not provide adequate time off
for disabilities due to pregnancy may be vulnerable to a disparate impact challenge.
However, a policy that prevented employees from using any form of unpaid leave,
including maternity leave, after a sick leave, unless accumulated sick leave had been
exhausted and they remained disabled, did not have an adverse impact on women
employees. 66
However, it is the EEOC's position that Title VII does require an employer to grant
childcare leaves on the same basis as it grants leaves for other nonmedical reasons.
Therefore, if an employer normally allows employees to take leave without pay or
accrued annual leave for reasons such as travel or education, it must also allow time off
for childcare. 67 Thus, childcare leave may be denied if personal leave is only allowed
for an acute emergency or a death in an employee's family. 68 Nor need an employer
provide personal leave to a female employee for the purpose of breastfeeding an infant if
no personal leave is given to either men or women for other reasons. 69
Subject to the same controversy arising under the question of whether maternity leave is
available or required under Title VII for childcare purposes, paternity leave may also be
requested by male employees.
If an employer already provides childcare leave to mothers, but not to fathers, such a
policy may be challenged as sexually discriminatory under Title VII. Thus, a male
employee who was denied unpaid childrearing leave which was granted to females who
had given birth, but who were not disabled, established a prima facie case of sex
discrimination under Title VII. 70 The EEOC takes the position that employers must
treat male and female employees equally when they request time off to care for children
or a Title VII violation will result. Also, preferential policies for women employees
cannot be justified on the basis of state laws that provide other forms of preferential
treatment to women disabled by pregnancy, ( B- 15,000 et seq.), since such statutes are
consistent with the PDA amendments to Title VII only when narrowly drawn to cover
periods of actual disability. Further, parental leave discrimination against male
employees cannot be justified by a BFOQ defense based on the perception that one sex is
more likely than the other to require such leave, since sexual stereotypes about gender
roles are inconsistent with the fundamental precepts of Title VII, and the BFOQ defense
does not apply to fringe benefits. While denying parental leave to all employees does not
constitute disparate treatment discrimination 71 under Title VII, it may have an
unlawful disparate impact on one sex if it does not serve a legitimate employment
purpose in a significant way. 72
Employers operating educational programs or activities that are federally funded are
required by Title IX's sex discrimination prohibition to provide leave for the purpose of
caring for children to members of both sexes, unless denials of such leave are justified by
a bona fide occupational qualification. 73
882 ----Extending antidiscrimination requirements for maternity leave to

childcare [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 64. 880.
Footnote 65. Record v Mill Neck Manor Lutheran School (1985, ED NY) 611 F Supp
905, 38 BNA FEP Cas 387; Payseur v W.W. Grainger, Inc. (1989, ND Ill,) 52 BNA FEP
Cas 789, 53 CCH EPD 39938.
Footnote 66. Maganuco v Leyden Community High School Dist. 212 (1991, CA7) 939
Footnote 67. 29 CFR Part 1604. Appx, Q. 18(A).
Footnote 71. As to the theories underlying proof of discrimination claims, see 2699 et
seq.
Footnote 72. EEOC Policy Statement N-915.058.
Footnote 73. 34 CFR 106.51(b)(6).
883 Right to service credit during maternity leave

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Because the Pregnancy Discrimination Act (PDA) amendment to Title VII requires that
maternity leaves be treated equally to leaves available for other disabling conditions, 74
EEOC interprets the PDA not only to require equal availability of maternity leave, 75
but also to require equal treatment of employees on such leave with regard to associated
service credits. Thus, time spent on maternity leave must be credited the same as time
spent on leave for other reasons in calculating vacation benefits and pay increases. 76
Therefore, employers' failures to credit time on pregnancy leave in the same manner as
time on disability leave for purposes of seniority, 77 sick leave, vacation time, time
required for annual salary increments and anniversary date, 78 and for tenure and
retirement, 79 violated Title VII.
However, while the OFCCP interprets Executive Order 11246 to require covered
government contractors to also equally apply the conditions of an existing leave policy to
leaves for childbearing and other reasons, 80 an employer who provides no leave for
any reason must not only permit leave for childbearing purposes, 81 but must also allow
employees entitled to such leaves to accumulate any accompanying service credits. 82
Observation: The difference in the requirements of Title VII and Executive Order
11246 with respect to an employee's right to service credit during a maternity leave
only comes into play when an employer has no leave policy. Their respective
requirements concerning the accumulation of service credits is the same when
maternity leave is being taken under a policy applicable to employees with other
temporary medical incapacities.
883 ----Right to service credit during maternity leave [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 74. 876.
Footnote 75. 880.
Footnote 76. 29 CFR 1604.10 Appx, Q.11.
Footnote 77. Nashville Gas Co. v Satty (1977) 434 US 136, 54 L Ed 2d 356, 98 S Ct
Footnote 78. Zichy v Philadelphia (1979, CA3) 590 F2d 503, 34 BNA FEP Cas 1381, 18
CCH EPD 8846.
BNA FEP Cas 412.
Footnote 80. 41 CFR 60-20.3(g)(1).

Footnote 81. 881.
Footnote 82. 41 CFR 60-20.3(g)(2).
884 Duration of maternity leaves

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Go to Supplement
Under the Pregnancy Discrimination Act (PDA) amendment to Title VII requiring equal
treatment for maternity leaves and leaves for other disabling conditions, 83 an employer
cannot have a rule prohibiting an employee from returning to work for a predetermined
length of time after childbirth, 84 if similar limits do not apply to other leaves of
absence. Thus, employers violated Title VII by requiring that maternity leaves end six
months from commencement, or three months from the baby's delivery date, 85 or
three months 86 or two months after the termination of the pregnancy, 87 when
temporary disability or other leaves were not equally restricted.
The OFCCP's interpretation of Executive Order 11246's sex discrimination prohibition is
that covered government contractors are required to provide an employee with a
reasonable amount of time off for the purpose of childbearing, both when the leave is
taken under an employer's existing leave of absence policy, 88 and when the contractor
does not have a leave policy. 89
Observation: The requirements of Executive Order 11246 are more exacting than
those of Title VII, in that a reasonable amount of time is required to be granted for
maternity, regardless of the length of time the employer provides for other temporary
medical incapacitieswhile only the latter amount is required by Title VII.
While Title VII does not mandate more than equality for maternity and other forms of
disability and sick leave, an employer that has a more generous policy for maternity leave
duration than for leaves for other reasons must adhere to it. For example, when a
maternity leave policy required an employee to seek reinstatement either when her
disability ended or home conditions permitted, she was not required to apply for
reinstatement immediately when physically able to return to work, as were other
employees on disability leave. 90
884 ----Duration of maternity leaves [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 83. 876.
Footnote 85. Wetzel v Liberty Mut. Ins. Co. (1975, CA3) 511 F2d 199, 9 BNA FEP Cas
Footnote 86. Fabian v Independent School Dist. (1976, WD Okla) 409 F Supp 94, 21
6444.
Footnote 88. 41 CFR 60-20.3(g)(1).
Footnote 89. 41 CFR 60-20.3(g)(2).
Footnote 90. EEOC v AT&T Technologies, Inc. (1988, ND Ill) 1988 US Dist LEXIS
385.
885 Right to reinstatement following maternity leave

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In addition to requiring equal treatment for maternity leave requests, 91 the Pregnancy
Discrimination Act (PDA) amendment to Title VII requires an employer to permit an
employee on maternity leave to return to her job on the same basis as other employees
returning to work from sick or disability leave. 92 Thus, if a policy governing
reinstatement following maternity leave is substantially more burdensome than the policy
governing reinstatement following leave for other temporary disabilities, the increased
burden on women must be justified by a legitimate business reason. 93
Financial reasons may justify a failure to reinstate an employee returning from maternity
leave if the employer's business is in a slump and economic necessity prevents the
rehiring of any employee. 94 However, where the evidence contradicted the employer's
assertion of its poor financial condition, 95 or when an employer had nondiscriminatory
alternatives by which it could meet its financial objectives, 96 policies that made it more
difficult to reinstate employees from maternity, rather than other types of leave, violated
Title VII.
Alternatively, the demands of an employer's business may also justify the denial of
reinstatement to an employee returning from maternity leave, such as when an employer
had an overriding need to fill vacancies as soon as they occurred, and the employee was
so informed. 97
Where reinstatement from maternity leave is conditioned upon the satisfaction of certain
requirements, those requirements must also be equally applied to employees on leaves for
other disabling conditions. For instance, an employer could prevent an employee from
returning from a maternity leave based on her doctor's recommendation that she not
return to work until four weeks after delivery, despite the fact that she was medically
capable of returning sooner, since the same policy was followed for all other medical
conditions under the "sick time" policy. 98
Employers have violated Title VII when reinstatement from maternity leave, but not
reinstatement from sick leave or disability leave, was conditioned on the requirement that
the employee:
could only be reinstated if there was an available appropriate vacancy; 99
accept a different position, given to her because of her pregnancy, with the same pay but
significantly less work responsibilities and career opportunities; 1
take a physical examination; 2
must achieve a normal menstrual cycle; 3
could only be reinstated at the discretion of an administrative official. 4
While the OFCCP similarly interprets Executive Order 11246 to require covered
government contractors to reinstate employees from leaves of absence for childbearing
reasons in conformity with the conditions imposed on employees returning from leaves
of absence for other reasons, 5 contractors without a leave policy must not only grant
such leaves, 6 but must also reinstate employees from childbearing leaves of absence to
their original jobs or to positions of like status and pay, if they signify their intent to
return within a reasonable time. 7
Observation: The requirements of Executive Order 11246 are more exacting than
those of Title VII in two respects when the employer does not have a leave policy. The
Executive Order, in those circumstances, not only requires reinstatement, but also
requires that it be to the same or an equivalent position. Title VII does not mandate
more than equal treatment, 8 and would not require reinstatement in those
circumstances. Furthermore, even if the employer had a disability or sick leave leave
policy, Title VII does not require reinstatement from maternity leave to any position
not required by the existing policy.
885 ----Right to reinstatement following maternity leave [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.

Footnotes
Footnote 91. 880.
Footnote 93. Pennington v Lexington School Dist. (1978, CA4) 578 F2d 546, 17 BNA
FEP Cas 1684, 17 CCH EPD 8430; Burwell v Eastern Air Lines, Inc. (1978, ED Va)
458 F Supp 474, 17 BNA FEP Cas 1686, 18 CCH EPD 8759, affd in part and revd in
EPD 31589.
Footnote 94. Newmon v Delta Air Lines, Inc. (1973, ND Ga) 374 F Supp 238, 7 BNA
Footnote 95. Felts v Radio Distributing Co. (1985, ND Ind) 637 F Supp 229, 47 BNA
FEP Cas 362.
Footnote 96. Clanton v Orleans Parish School Bd. (1981, CA5) 649 F2d 1084, 26 BNA
Footnote 97. McGaffney v Southwest Miss. Hospital (1973, SD Miss.) 5 BNA FEP Cas
1312, 5 CCH EPD 8409, affd without op (CA5) 6 BNA FEP Cas 1123.
Footnote 98. EEOC v Southwestern Electric Power Co. (1984, WD Ark) 591 F Supp
Footnote 99. Communications Workers of America v Illinois Bell Tel. Co. (1980, ND Ill)
509 F Supp 6, 29 BNA FEP Cas 1070; EEOC Decision No. 71-562 (1970) 3 BNA FEP
Cas 233, CCH EEOC Dec 6184; EEOC Decision No. 75-023 (1974) CCH EEOC Dec
6461.
Footnote 1. Timus v Secretary of Labor (1991, DC Dist Col) 782 F Supp 122.
Footnote 2. Eberts v Westinghouse Electric Corp. (1978, CA3) 581 F2d 357, 17 BNA
Footnote 3. Harper v Thiokol Chemical Corp. (1980, CA5) 619 F2d 489, 23 BNA FEP
Cas 61, 23 CCH EPD 31041.
Footnote 4. Clanton v Orleans Parish School Bd. (1981, CA5) 649 F2d 1084, 26 BNA
Footnote 5. 41 CFR 60-20.3(g)(1).
Footnote 6. 881.
Footnote 7. 41 CFR 60-20.3(g)(2).
Footnote 8. 876.
b. Family and Medical Leave Act of 1993 [885.1- 885.7]
885.1 Generally
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Under the Family and Medical Leave Act of 1993, an eligible employee may take up to
12 work weeks of leave during any 12-month period for any of the following reasons:
(1) the birth of a son or daughter of the employee and in order to care for such son or
daughter;
(2) the placement of a son or daughter with the employee for adoption or foster care;
(3) in order to care for a spouse, or a son, daughter, or parent of the employee, if such
spouse, son, daughter, or parent has a serious health condition; or
(4) because of a serious health condition that makes the employee unable to perform the
functions of the employee's position. 9
Definition: A "serious health condition" is an illness, injury, impairment, or physical

or mental condition that involves inpatient care in a hospital, hospice, or residential
medical care facility, or continuing treatment by a health care provider. 10
The entitlement to leave which the Act provides for a birth or placement of a child
expires at the end of the 12-month period beginning on the date of such birth or
placement. 11
Leave granted under the Family and Medical Leave Act consists of unpaid leave. Where
an employee is otherwise exempt, the compliance of an employer with the Act by
providing unpaid leave does not affect the exempt status of the employee. 12
885.1 ----Generally [SUPPLEMENT]
Practice Aids: An overview of the application of the Family and Medical Leave Act of
1993 to employees of private employers, 54 Ala Law 390 (1993).
Analysis and understanding of the Family and Medical Leave Act of 1993, 45 Case W
Res LR 2:457 (1995).

The Family and Medical Leave Act of 1993, 22 Col Law 1851 (1993).
Basic requirements of the Family and Medical Leave Act, 10 Compleat Lawyer 4:6
(1993).
The Federal Family and Medical Leave Act: Easily conceived, difficult birth, enigmatic
child, 27 Creight LR 361 (1994).
The Family and Medical Leave Act of 1993: A great idea but a "Rube Goldberg"
solution? 43 Emory LJ 4:1351 (1994).
The Family and Medical Leave Actkey provisions and potential problems, 19 Emp Rel
LJ 5 (1993).
An overview of the Family and Medical Leave Act of 1993, 44 Lab LJ 429 (1993).
Family and Medical Leave Act (FMLA) of 1993, 1 Nev Law 11:29 (1993).
What you should know about the Family and Medical Leave Act, 39 Prac Law 7:21
(1993).
The Family and Medical Leave Act of 1993: An overview of the law and regulations, 37
Res Gestae 214 (1993).
An overview of the Family and Medical Leave Act, 70 U Det Mercy LR 691 (1993).
The Family and Medical Leave Act of 1993: Paying the price for an imperfect solution,
32 U Louisville J Fam L 4:833 (1994).
Family and medical leave acts: where lie the 'greater rights'?, 66 Wis Law 18 (1993).
Statutes:
2 USCS 1312 was enacted as part of the Congressional Accountability Act of 1995,
which makes certain laws applicable to the legislative branch of the federal government,
and it makes the rights and protection established by the Family and Medical Leave Act
applicable to congressional and other government employees as defined in 1301.
For a discussion of the statutes in the Family and Medical Leave Act specific to Civil
Service Employees, see 15A Am Jur 2d, Civil Service 50.5.
Regulations:
In 1993, The Department of Labor promulgated 29 CFR Part 825, which comprises
interim regulations implementing the Family and Medical Leave Act of 1993 (FMLA).
The purpose of these regulations, the section headings of almost all of which are worded
as questions, is to set forth the requirements of FMLA Titles I and IV. Subparts of Part
825 address questions in the following general areas: (1) what is FMLA, and to whom
does it apply? (29 CFR 825.100 et seq.), (2) what leave is an employee entitled to
take under FMLA? (29 CFR 825.200 et seq.), (3) how do employees learn of their
FMLA rights and obligations, and what can an employer require of an employee? (29
CFR 825.300 et seq.), (4) what enforcement mechanisms does FMLA provide? (29
CFR 825.400 et seq.), (5) what records must be kept to comply with FMLA? (29 CFR
825.500 et seq.), (6) what special rules apply to employees of schools? (29 CFR
825.600 et seq.), and (7) how do other laws, employer practices, and collective
bargaining agreements affect employee rights under FMLA? (29 CFR 825.700 et
seq.). Part 825 also includes definitions (29 CFR 825.800) and several appendices,
including a notice to employees of their rights under FMLA (29 CFR Part 825,
Appendix C).
Case authorities:
Claim of former employee against former employer for wrongful discharge under state
law is dismissed, where claim was brought on theory of violation of public policy
because of violations of Family and Medical Leave Act (29 USCS 2601 et seq.),
because underlying statute provides remedial schemes to protect employees from public
policy violations addressed by statute. Gall v Quaker City Castings (1995, ND Ohio) 874
F Supp 161, 8 ADD 1195.
Former city building official's Family and Medical Leave Act (29 USCS 2601 et seq.)
claim must be denied, where he sent city note from psychiatrist explaining extension of
vacation for purposes of examination, but never requested extended leave for medical
reasons prior to September 2, 1993, because employer plainly had not approved leave for
plaintiff for period encompassing August 5, 1993, Act's effective date, and ambiguous
request for leave on September 2 was followed by unequivocal letter of resignation on
September 7, which was not somehow rendered involuntary merely by circumstances
facing official. Paasch v City of Safety Harbor (1995, MD Fla) 915 F Supp 315, 131
CCH LC 33371.
Employee was not eligible for leave under FMLA, since she had not been employed with
employer for one year at time of her absence. Marsdem v Review Bd. of the Indiana
Dep't of Workforce Dev. (1995, Ind App) 654 NE2d 907, 3 BNA WH Cas 2d 346, 131
CCH LC 33394, reh den (Nov 6, 1995).
Wisconsin Supreme Court holding that constructive discharge was not prerequisite for
reinstatement or back pay under Wisconsin Family and Medical Leave Act does not
preclude application of constructive discharge doctrine in Wisconsin Fair Employment
Act cases. Marten Transp. v Department of Indus., Labor & Human Relations (1993)
176 Wis 2d 1012, 501 NW2d 391, 62 CCH EPD 42484, reconsideration den (Wis) 508
NW2d 425.
Based on language of statute and case law, which held that Family and Medical Leave
Act did not require that employee utter magic words or make formal application to
invoke Family and Medical Leave Act's protections, court of appeals concluded that
request for leave need only be reasonably calculated to advise employer that employee is
requesting medical leave under Family and Medical Leave Act and reason for request
(Stats 103.10(4)(c)). Sieger v Wisconsin Personnel Comm'n (1994, App) 181 Wis 2d
845, 512 NW2d 220.
Enabling portion of Family and Medical Leave Act, which provides that employee who
has serious health condition which makes employee unable to perform his or her
employment duties may take medical leave for period during which he or she is unable to
perform those duties and may schedule medical leave as medically necessary, states
burden of proof that is placed upon employee at hearing on employee's claim that
employer refused to allow employee medical leave in violation of Family and Medical
Leave Act; it does not address employee's responsibilities under Family and Medical
Leave Act when requesting medical leave (Stats 103.10(4)(c)). Sieger v Wisconsin
Personnel Comm'n (1994, App) 181 Wis 2d 845, 512 NW2d 220.
Essentially, Family and Medical Leave Act affords employers with three choices of
action when employee requests medical leave: approve leave; disapprove leave; or
request more information through certification process in statute (Stats 103.10(7)).
Sieger v Wisconsin Personnel Comm'n (1994, App) 181 Wis 2d 845, 512 NW2d 220.
Family and Medical Leave Act requires employee to reasonably accommodate
employer's need when scheduling planned medical leave under statute (Stats
103.10(6)(b)). Sieger v Wisconsin Personnel Comm'n (1994, App) 181 Wis 2d 845, 512
NW2d 220.
In action under Family and Medical Leave Act (FMLA), where employee of Department
of Health and Social Services (DHSS) who requested leave under FMLA failed to present
expert testimony as to her ability to perform her work duties, court concluded that no
medical expert testimony was required to establish that employee's serious health
condition interfered with her ability to perform her work duties, because there existed
outward or overt manifestations of fact that were easily recognizable by laypersons, and
court noted rule that layperson cannot be allowed to make diagnosis or prognosis of
particular person's present or future condition when to layperson there are no outward or
overt manifestations of present or future disabilities that would be apparent in general
experience of mankind. Sieger v Wisconsin Personnel Comm'n (1994, App) 181 Wis 2d
845, 512 NW2d 220.
In action under Family and Medical Leave Act (FMLA), where employee of Department
of Health and Social Services (DHSS) who requested leave under FMLA submitted to
her supervisors note from her physician which stated that employee should take one week
leave of absence, but where employee failed to call physician or another medical expert
to offer testimony concerning whether employee's leave was medically necessary, court
of appeals reversed judgment of trial court and remanded matter for new hearing based
on numerous misunderstandings of FMLA and other ambiguities, as court found that
medical expert testimony was necessary to establish that employee's leave was medically
necessary because employee's serious health condition did not manifest symptoms that
laypeople would recognize as necessitating leave and record contained no evidence
concerning medical necessity of employee's requested leave, which court found to be
result of employee's counsel's misunderstanding of burden of proof and hearing
examiner's failure to rule on necessity of medical testimony to establish that employee's
leave was medically necessary, and since court is required to set aside agency's decision
and remand matter to agency for further action if it finds that either fairness of
proceedings or correctness of action has been impaired by material error in procedure or

if it finds that agency has erroneously interpreted provision of law and correct
interpretation compels particular action, court of appeals concluded that existence of
errors by employee's counsel and hearing examiner compelled court to reverse judgment
and remand matter to Wisconsin Personnel Commission for further action under correct
interpretation of FMLA (Stats 103.10, 227.57(4), (5)). Sieger v Wisconsin Personnel
Comm'n (1994, App) 181 Wis 2d 845, 512 NW2d 220.
In action under Wisconsin Family Medical Leave Act (FMLA), where employee of
Department of Health and Social Services (DHSS) submitted note from her physician to
her supervisors, which recommended she take one week leave of absence, and where
Wisconsin Personnel Commission found that DHSS knew of employee's serious health
condition and that employee's health condition was affecting her ability to perform her
duties, court of appeals concluded that employee's request for leave was reasonably
calculated to advise DHSS that she was requesting medical leave under FMLA because
of her serious health condition, as request for leave need only be reasonably calculated to
advise employer that employee is requesting medical leave under FMLA and reason for
request, and court found that WPC conceeded at oral argument that both of employee's
supervisors knew that employee was requesting medical leave, and that one supervisor
knew specific dates employee was requesting medical leave (Stats 103.10(4)(c)).
Sieger v Wisconsin Personnel Comm'n (1994, App) 181 Wis 2d 845, 512 NW2d 220.
Plain language of Family and Medical Leave Act demonstrates legislature's intent to
place burden on employers to determine, at time employee requests sick leave, whether
employee: (1) has serious health condition; (2) that renders employee unable to perform
employee's duties; and (3) that leave is medically necessary (Stats 103.10(7)). Sieger v
Wisconsin Personnel Comm'n (1994, App) 181 Wis 2d 845, 512 NW2d 220.
There is no evidence that Wisconsin Personnel Commission has gained special expertise
through regular and repeated interpretations of Family and Medical Leave Act since prior
decisions of court, and thus, court of appeals reviews Wisconsin Personnel Commission's
interpretation of Family and Medical Leave Act de novo. Sieger v Wisconsin Personnel
To successfully assert that employer wrongfully denied employee medical leave,
employee must prove that employee was entitled to medical leave under Family and
Medical Leave Act. Sieger v Wisconsin Personnel Comm'n (1994, App) 181 Wis 2d
845, 512 NW2d 220.
To successfully assert that employer wrongfully denied employee medical leave,
employee must prove that: (1) employee had serious health condition; (2) that rendered
employee unable to perform employee's work duties during requested leave; (3) that
leave was medically necessary; and (4) that employee requested planned medical leave in
reasonable manner (Stats 103.10(6)(b)). Sieger v Wisconsin Personnel Comm'n (1994,
App) 181 Wis 2d 845, 512 NW2d 220.
To warrant giving great weight to Wisconsin Personnel Commission's interpretation and
application of Family and Medical Leave Act, there must be evidence that agency
actually has developed expertise in administering statute. Sieger v Wisconsin Personnel
Department of Industry, Labor and Human Relations (DILHR) reasonably interpreted
plain language of Wisconsin Family and Medical Leave Act to mean that any
noncontinuous increment of 6-week family leave allowed for birth of child must begin
within 16 weeks of child's birth in order to balance parent's need to care for new child
with employer's need to know reasonable time frame during which leave will be taken
(Stats 103.10(3)(b)1). Schwedt v Department of Indus., Labor & Human Relations
(1994, App) 188 Wis 2d 500, 525 NW2d 130.
Former employee of Small Business Administration, who held temporary appointment of
over one year, was federal employee covered by Title II of Federal Medical Leave Act (5
USCS 6381 et seq.), rather than Title I of such Act (29 USCS 2611 et seq.), and
therefore did not have private right of action under Act against his former employer.
Sutherland v Bowles (1995, ED Mich) 66 CCH EPD 43565, 130 CCH LC 33231, 2
BNA WH Cas 2d 1336.
Term "serious health condition" as defined in 29 USCS 2611(11) is limited to health
problems that afflict individual who is alive. Brown v J.C. Penney Corp. (1996, SD Fla) 3
BNA WH Cas 2d 331, 9 FLW Fed D 771.
Punitive damages cannot be recovered under FMLA. McKiernan v
Smith-Edwards-Dunlap Co. (1995, ED Pa) 3 BNA WH Cas 2d 272, 66 CCH EPD
43686, 130 CCH LC 33296.
Footnotes
Observation: The Act directs that a Commission on Leave be appointed to conduct a

comprehensive study of existing and proposed leave policies, potential costs, benefits,
and the impact on productivity of leave policies, among other issues. 29 USCS
2631 et seq.
For a discussion of the provision dealing with an employee taking leave as a result of
his or her health condition, see 886., see 1.
885.2 Protection of employment and benefits

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An eligible employee who takes protected leave is entitled, upon returning to

employment, to be restored by the employer to the position of employment held when the
leave commenced, or to be restored to an equivalent position with equivalent
employment benefits, pay, and other terms and conditions of employment. The taking of
leave must not result in the loss of any employment benefit accrued prior to the date on
which the leave commenced. 13 The employer must maintain coverage under any
"group health plan" for the duration of the leave at the level and under the conditions
coverage would have been provided if the employee had continued in employment
continuously for the duration of the leave. 14
Caution: There is an exemption concerning this provision in the statute relating to

certain highly compensated employees. The statute defines such highly compensated
employees as those salaried employees who are among the highest paid 10 percent of
those employed by the employer within 75 miles of the facility where the employee
works. 15
885.2 ----Protection of employment and benefits [SUPPLEMENT]
Practice Aids: Family and Medical Leave Act restricts employers, overlaps other
laws, 6 Benefits LJ 143 (1993).
Impact of the Family and Medical Leave Act on employee benefits, 7 Benefits LJ 3:271
(1994).
An employee's perspective on the Family and Medical Leave Act, 38 Bos BJ 4:4 (1994).
The cost of retaining vs. the cost of retraining: An analysis of the Family and Medical
Leave Act, 10 Hofstra Lab LJ 753 (1993).
Case authorities:
Insurance claims examiner terminated for excessive absenteeism is denied relief under
Family Medical Leave Act (29 USCS 2601 et seq.), even though her 4-day absence
from work was due to her 4-year- old son's ear infection, where son only had fever for 24
hours, never complained of ear pain, and was cleared for day school under standard
medical protocol after 3 days, because son did not suffer "serious health condition" under
2611. Seidle v Provident Mut. Life Ins. Co. (1994, ED Pa) 871 F Supp 238, 2 BNA WH
Cas 2d 913, 66 CCH EPD 43438, 129 CCH LC 33210.
Footnotes

885.3 Effect of paid leave provided by employer

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If an employer provides paid leave for fewer than 12 work weeks, the additional weeks of
leave necessary to attain the 12 weeks of leave required under the Act may be provided
without compensation. 16 An eligible employee may elect, or an employer may require
the employee, to substitute any of the accrued paid vacation leave, or family leave of the
employee for leave provided under the Act. 17
885.3 ----Effect of paid leave provided by employer [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
885.4 Intermittent leave or leave on reduced schedule

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An employee may take leave for the birth or placement of a child intermittently or on a
reduced leave schedule only if the employee and the employer agree to such an
arrangement. 18
An employee may take leave intermittently or on a reduced leave schedule for the care of
a spouse, child, or parent with a serious health condition, or for the employee's own
serious health condition, when such leave is medically necessary. If an employee
requests intermittent leave, or leave on a reduced leave schedule, that is foreseeable
based on planned medical treatment, the employer may require the employee to transfer
temporarily to an available alternative position for which the employee is qualified and
that better accommodates recurring periods of leave and the regular employment position
of the employee. Such an alternative position must have equivalent pay and benefits. 19
Leave taken intermittently or on a reduced leave schedule does not reduce the total
amount of leave available to an employee. 20 Only the time actually taken is charged
against the employee's entitlement to leave. 21
885.4 ----Intermittent leave or leave on reduced schedule [SUPPLEMENT]
Practice Aids: Intermittent leave under the Family and Medical Leave Act of 1993:
Job security for the chronically absent employee? 10 Lab Law 1 (1994).
Footnotes
Footnote 21. Senate Rep. No. 103-3, 103d Cong., 1 St. Sess. 3 (1993), p. 29.
885.5 Notice requirement

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In any case in which the necessity for leave is foreseeable based on planned medical
treatment, or an expected birth or placement, the employee must provide the employer
with at least 30 days' notice before the date the leave is to begin, or, in the event that
circumstances require the leave to begin in less than 30 days, the employee must provide
such notice as is practicable. 22
885.5 ----Notice requirement [SUPPLEMENT]
Practice Aids: Complying with the Family and Medical Leave Act, 39 Prac Law 9:35
(1993).
Case authorities:
Although FMLA permits employee to take leave thereunder by working reduced
schedule (29 USCS 2612(b)), employer's approval for employee to take leave under
FMLA could not be implied from fact that employer permitted her to work reduced
schedule, since there was no evidence that employee made her request for reduced work
hours under FMLA, or that employer granted her reduced schedule thereunder. Marsdem
v Review Bd. of the Indiana Dep't of Workforce Dev. (1995, Ind App) 654 NE2d 907, 3
BNA WH Cas 2d 346, 131 CCH LC 33394, reh den (Nov 6, 1995).
Employee's unforeseeable need to take qualifying leave is not precluded by his inability
to give notice to employer. Johnson v Primerica (1996, SD NY) 3 BNA WH Cas 2d 109,
67 CCH EPD 43934, 131 CCH LC 33346.
If employer fails to adequately notify its employees of impact of its own family leave
policies on rights provided by FMLA, particularly where there is apparent conflict
between employer's policy and employees' FMLA rights, such conduct can constitute
interference with employee's FMLA rights if it causes employee to unwittingly forfeit
protection of FMLA; thus, inadequate notice of employer's FMLA policies can, in
appropriate circumstances, support claim for violation of FMLA even where employee's
leave exceeds twelve weeks mandated by statute. Fry v First Fidelity Bancorporation
Footnotes
885.6 Certification requirement for family medical leave

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If an employee asks for leave because of the serious health condition of a spouse, son,
daughter, or parent, the employer may require the request to be supported by timely
certification from the health care provider of the person with the condition. 23
885.6 ----Certification requirement for family medical leave [SUPPLEMENT]

Practice Aids: Complying with the Family and Medical Leave Act, 10 Corp Couns Q
1:1 (1994).
Footnotes
885.7 Spouses working for same employer

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In any case in which a husband and wife entitled to leave are employed by the same
employer, the aggregate number of work weeks of leave to which both may be entitled
may be limited to 12 work weeks during any 12-month period, if the leave is taken
because of the birth or placement of a son or daughter, or to care for a sick parent. 24
885.7 ----Spouses working for same employer [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
5. Sick Leave [886-889]
886 Generally
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Sick leave benefits must be provided in compliance with both federal and state 25 job
discrimination laws. In most instances, these laws do not single out sick leave benefits
from the rest of the terms and conditions of employment they explicitly or implicitly
regulate. 26 While some federal laws expressly regulate sick leave with respect to sex
and pregnancy discrimination, or implicitly do so under the broader regulation of all
leave as a "fringe benefit", 27 it is reasonable to conclude that statutes which regulate all
terms and conditions of employment, or fringe benefits in general, cover sick leave
benefits for all prohibited grounds of discrimination. Correspondingly, all exceptions
applicable to all terms and conditions of employment, 28 or to all fringe benefits, 29
would also apply to sick leave benefits.
Employers will not usually be liable under any discrimination statute if the treatment of
protected group members under a sick leave policy is the same treatment afforded to
other individuals. For example, in a race discrimination claim under Title VII, it was not
unlawful disparate treatment for an employer to refuse to permit a black employee to
return to work after an extended sick leave until he was given an unconditional release by
his physician, when two white employees also had been required to obtain unconditional
releases from their doctors. 30 In a religious discrimination case, an employee who
refused to cooperate with his employer's reasonable accommodation concerning his sick
leave request was not discriminatorily discharged. Although the employer initially
requested a medical diagnosis to substantiate the necessity for the leave, it later requested
only a third-party statement of the condition from the plaintiff's Christian Science
practitioner, in deference to his religious beliefs. When the employee did not provide
that statement and remained absent from work, the employer was justified in terminating
him. 31
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 25.
State Aspects While most state job discrimination laws do not single out sick leave
benefits from the other terms and conditions of employment they explicitly or
implicitly regulate, some states do single out this type of benefit. For further
discussion, see Employment Coordinator EP-21,307.

Footnote 27. 887.
Footnote 30. Campbell v Greyhound Lines, Inc. (1987, SD Fla) 669 F Supp 409, 43 BNA
Fep Cas 1232, 43 CCH EPD 37077.
Footnote 31. Riselay v Secretary of HHS (1991, CA6) 1991 US App LEXIS 6179.
886.1 Under Family and Medical Leave Act

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Go to Supplement
Under the Family and Medical Leave Act of 1993, an eligible employee is entitled to up
to 12 weeks of unpaid leave during any 12-month period because the employee has a
serious health condition that makes him or her unable to perform the functions of the
employee's position. 32
Definition: The term "serious health condition" is intended to cover conditions or

illnesses that affect the employee's health to the extent that he or she must be absent
from work on a recurring basis or for more than a few days for treatment or recovery.
33
If an employee asks for leave because of his or her serious health condition, the employer
may require that the request be supported by timely certification from the employee's
health care provider. 34 The requirements for sufficient certification are set forth in
provisions of the Act. 35 An employer who doubts the validity of such a certification
has the right to require the employee to obtain a second opinion, at the employer's
expense. 36
886.1 ----Under Family and Medical Leave Act [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Case authorities:
Period of work missed by employee due to his blood pressure medication was not
protected by FMLA, because work was missed in July of 1993, and FMLA did not go
into effect until August, 5, 1993. Oswalt v Sara Lee Corp. (1996, CA5 Miss) 74 F3d 91, 5
AD Cas 385, 3 BNA WH Cas 2d 126, 67 CCH EPD 43882.
Employee's rectal bleeding was not "serious health condition" covered by 29 USCS
2612(a)(1)(D), where employee who was fired for absenteeism filed action claiming
absenteeism was due to serious health condition and absences thus were excused under
statute, but bleeding was not diagnosed as condition with serious consequences and did
not interfere with employee's ability to perform work; condition had to be taken for what
it was during relevant time period and not for what it conceivably could have become.
Bauer v Dayton- Walther Corp. (1996, ED Ky) 910 F Supp 306, 3 BNA WH Cas 2d 67,
67 CCH EPD 43930, 131 CCH LC 33343.
Employee's rectal bleeding was not "serious health condition" covered by 29 USCS
2612(a)(1)(D), where employee who was fired for absenteeism filed action claiming
absenteeism was due to serious health condition and absences thus were excused under
statute, but bleeding was not diagnosed as condition with serious consequences and did
not interfere with employee's ability to perform work; condition had to be taken for what
it was during relevant time period and not for what it conceivably could have become.
Bauer v Dayton-Walther Corp. (1996, ED Ky) 910 F Supp 306, 3 BNA WH Cas 2d 67,
67 CCH EPD 43930, 131 CCH LC 33343.
Employee's unforeseeable need to take qualifying leave is not precluded by his inability
to give notice to employer. Johnson v Primerica (1996, SD NY) 3 BNA WH Cas 2d 109,
67 CCH EPD 43934, 131 CCH LC 33346.
If employer fails to adequately notify its employees of impact of its own family leave
policies on rights provided by FMLA, particularly where there is apparent conflict
between employer's policy and employees' FMLA rights, such conduct can constitute
interference with employee's FMLA rights if it causes employee to unwittingly forfeit
protection of FMLA; thus, inadequate notice of employer's FMLA policies can, in
appropriate circumstances, support claim for violation of FMLA even where employee's
leave exceeds twelve weeks mandated by statute. Fry v First Fidelity Bancorporation
Footnotes
Footnote 32. 29 USCS 2612(a)(1)(D).
Footnote 33. Senate Rep. No. 103-3, 103d Cong., 1 St. Sess. 3 (1993), p. 28.
887 Sex and pregnancy discrimination

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EEOC's sex discrimination guidelines under Title VII expressly include leave as a "fringe
benefit" that is regulated by the statute. 37 Leave is also one of the benefits covered as
"wages" under the sex discrimination prohibition of the Equal Pay Act. 38
Furthermore, under the Pregnancy Discrimination Act (PDA) amendments to Title VII, a
woman unable to work for pregnancy-related reasons is entitled to sick leave benefits on
the same basis as employees unable to work for other medical reasons. 39 Women may
also be entitled to use accrued sick leave for pregnancy-related disabilities, 40 and for
maternity leave. 41
887 ----Sex and pregnancy discrimination [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Case authorities:
Where employee's pregnancy was apparent, or where employee alleges that she had
disclosed it to employer, then question of employer's knowledge would likely preclude
summary judgment in Title VII pregnancy discrimination action; if pregnancy was not
apparent, and employee did not disclose it to her employer, she must allege knowledge,
and present, as part of her prima facie case, evidence from which rational jury could infer
that employer knew that she was pregnant. Geraci v Moody-Tottrup, Int'l (1996, CA3 Pa)
Footnotes
Footnote 38. 29 CFR 1620.10, 1620.11(a).
Footnote 39. 29 CFR 1604.10(b).
888 Age discrimination

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purposes of applying the ADEA's benefit plan exception, 42 the exception does not
apply to uninsured paid sick leave because a reduction in these benefits would not be
justified by significant cost considerations. 43
888 ----Age discrimination [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 43. 29 CFR 1625.10(a)(1); S Rept 101-263, 4/5/90, p. 18.
889 Handicap or disability discrimination

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Regulations implementing the prohibitions against handicap discrimination in 504 of
the Rehabilitation Act of in 1973 specifically state that the Act applies to sick leave. 44
On its effective date, which varies according to the number of employees an employer
has, 45 the Americans with Disabilities Act (ADA) forbids discrimination against a
qualified individual on the basis of his disability with respect to leaves of absence,
including sick leave 46
Leave policies that are uniformly applied to all employees do not violate the ADA simply
because they do not address the special needs of individuals with disabilities.
Illustration: An employer that reduces the number of paid sick days it will provide
to all employees or the amount of medical coverage will not violate the ADA even if
the reductions have an adverse impact on disabled employees who need more sick
leave or medical protections.
The ADA does not entitle individuals with a disability to more paid sick leave than
nondisabled employees. 47
"No-leave" policies, such as those forbidding leave during the first six months of
employment, are similarly not subject to challenge under the ADA merely because they
have a more significant affect on disabled employees. However, even an employer with a
"no-leave" policy may have to consider providing leave as a reasonable accommodation
48 unless it would impose an undue hardship on its operations. Furthermore, if an
employer reduces the amount of leave for discriminatory reasons, it violates the Act. 49
889 ----Handicap or disability discrimination [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 44. 28 CFR 41.510(b)(5).
Footnote 47. S Rpt No. 101-116, 8/30/90, p. 31.
Footnote 48. As to reasonable accommodation of handicaps, see 197 et seq.
6. Rest and Meal Breaks [890, 891]
890 Generally
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As with other terms and conditions of employment, 50 federal law requires employers
to administer rest and meal breaks in a nondiscriminatory manner. While employers are
forbidden from discriminating against any group protected by Title VII with respect to
administering rest and meal breaks, most challenges to such policies arise in the form of
sex discrimination claims. Employers' leave policies involving rest and meal breaks are
illegal under Title VII if they discriminate between employees on the basis of sex without
justification. The discriminatory application of a time-off policy was, therefore, unlawful
where employers:
permitted male, but not female employees, a mid-morning ten-minute break; 51
allowed female, but not male employees, two 15-minute rest periods per day. 52
However, employers' paid rest and break policies may have an adverse effect on one sex
if it is supported by a business justification. For example, an employer's lunch break
policy contained in its collective bargining agreement with a union did not violate Title
VII, when it provided an eight-hour work day with a 30-minute unpaid lunch period for
finishers, who were primarily women, while other production workers worked eight
hours and ate lunch at a time when the work load permitted. The employer demonstrated
a high correlation between the policy and the performance requirements of production
workers and finishers to substantiate the need for the policy. 53
Also, an employer did not commit sex discrimination under Title VII by paying only one
(predominantly male) job classification during lunch breaks, when the reason for the
payment related to the "on-call" nature of only those positions during that time period. 54
State aspects: Several state statutes mandate rest and meal periods for employees. 55
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 52. EEOC Decision No. 6-8-6654 (1969) 2 BNA Fep Cas 78.
Footnote 53. EEOC v Ball Corp (1981, CA6) 661 F2d 531, 26 BNA FEP Cas 1701, 27
CCH EPD 32150.
Footnote 54. Kohne v IMCO Container Co. (1979, WD Va) 480 F Supp 1015, 21 BNA
Footnote 55. For further discussion of these laws, see Employment Coordinator
EP-21,360 et seq.
891 Validity of state women's protective rest and meal break laws under Title VII
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Employer policies created to comply with state protective legislation requiring time off
only for women are invalid under Title VII's sex discrimination prohibition 56 if those
breaks are not based on a bona fide occupational qualification. 57
However, an employer also engages in an unlawful employment practice by refusing to
hire or otherwise adversely affecting the employment opportunities of female applicants
or employees to avoid complying with state laws requiring special rest and meal periods
for women. 58
Recommendation: An employer may satisfy both the state women's protective rest
and meal break laws and Title VII by simply giving all employees the treatment
required for only women by the state law. Thus, if state law mandates rest and meal
periods solely for women, employers could satisfy this requirement and Title VII by
providing both men and women employees with the required rest and meal breaks.
891 ----Validity of state women's protective rest and meal break laws under Title
VII [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 57. Burns v Rohr Corp. (1972, SD Cal) 346 F Supp 994, 4 BNA FEP Cas 939, 4
CCH EPD 7924; Doctors Hospital, Inc. v Recio (1974, DC Puerto Rico) 383 F Supp
As to bona fide occuapational qualifications, see 269 et seq.
Footnote 58. 29 CFR 1604.2(b)(4)(i).
D. Other Terms and Conditions of Employ [892-1054]
Research References
5 USCS 8335; 29 USCS 50, 213, 623, 624, 631, 632, 794, 1577; 38 USCS
1652, 1671; 42 USCS 1981, 2000e, 2000e-2, 2000e-5, 12112; 49 USCS 1421
P.L. 102-166 (Civil Rights Act of 1991)
14 CFR Part 121; 28 CFR Parts 41, 42; 29 CFR Parts 29, 30, 31, 541, 1604, 1606,
1607, 1620, 1625, 1627, 1630; 34 CFR Part 106; 41 CFR Parts 60-1, 60-20, 60-250,
60-741; 45 CFR Part 84; 49 CFR Part 27; 54 CFR Part 1151
45 Fed. Reg. 60830 (Sept. 12, 1980)
49 Fed. Reg. 14694, 14695 (1984)
5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Forms 101, 114, 131; 16 Am Jur Pl & Pr
Forms (Rev), Labor and Labor Relations, Form 263
12 Am Jur POF2d 645, Sex Discrimination in EmploymentPromotion Practices
seq., EP-22,245 et seq., EP-22,345 et seq., 22,510 et seq., EP-22,973 et seq.
1. Training [892-903]
892 Generally
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Apprenticeship and other training programs are expressly regulated under federal law by:
Executive Order 11246 and the Vietnam Era Veterans Readjustment Assistance Act; 3
Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of
1972; 4
the National Apprenticeship Act of 1937; 5
the Equal Pay Act, in the context of prohibiting wage and salary discrimination. 6
On its effective date, which varies according to the size of the employer, 7 the
Americans with Disabilities Act (ADA) expressly prohibits discrimination with respect to
an employee's "job training". 8 This prohibition extends to selection and financial
support for training, including apprenticeships, professional meetings, conferences and
related activities. It also includes selections for leaves of absence to pursue training
opportunities. 9
contractual relationship. 12

include training.
ruling that the statute's application was limited in the employment context to hiring and
promotion decisions that involved the formation of new contracts, and did not reach
post-formation conduct. 14
Thus, discriminatory training practices were actionable
under 1981 only to the extent that they involved new and distinct contractual
relationships between employers and employees. 15
Observation: Training discrimination may be regulated by 1981 for current

employees as well as new hires, depending on the significance of the difference
between the position being trained for and the position held when entering the training
program. 16
Caution: Job discrimination laws that implicitly or explicitly regulate all terms,
conditions, or privileges of employment 17 may also regulate training and
apprenticeship policies and practices as a term or condition of employment that is
subject to the same exceptions applicable to all terms and conditions of employment.
State aspects: The provisions of many state job discrimination laws implicitly or
explicitly regulate all terms and conditions of employment, and contain special
requirements for the application of a training discrimination prohibition, or grant
exceptions applicable to particular types of discrimination that only apply in the
context of training or apprenticeship programs. Such laws are discussed in the
Employment Coordinator at EP-22,040 et seq. In addition, state job discrimination
laws that implicitly or explicitly regulate all terms, conditions, or privileges of
employment may regulate apprenticeship and other training programs as a term or

condition of employment, subject to the same exceptions applicable to all terms and
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 1. 897-899.
Footnote 2. 894.
Footnote 3. 895.
Footnote 4. 896.
The application of the ADEA to employee training and apprenticeship programs is
discussed at 893.
ADA restrictions on training discrimination are discussed at 900 and discussed at
901.
Footnote 11. P.L. 102-166 101(2).
Forms: Allegations in complaintRacial discrimination by employerTermination of
employmentPromised responsibility and training withheldFalse performance
evaluations issued [42 USCS 2000e et seq.]. 12 Federal Procedural Forms, L Ed,

Footnote 15. Artis v U.S. Industry (1989, ND Ill) 720 F Supp 105, 50 BNA FEP Cas
1366, 52 CCH EPD 39515; Summerville v GTE South, inc. (1989, MD NC) 55 BNA
FEP Cas 303.
Footnote 16. For a discussion of how courts have dealt with similar situations in the
context of promotion discrimination claims under 1981, see 904 et seq.
Footnote 18. Laws regulating terms and conditions or privileges of employment generally
are discussed at 701 et seq. The exceptions to discrimination laws are discussed
generally at discussed at 268 et seq.
893 Effect of ADEA on bona fide apprenticeship programs

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The ADEA regulates all terms, conditions, and privileges of employment 19 and does
not explicitly exempt bona fide apprenticeship training programs from its age
discrimination prohibitions. However, it is the EEOC's view that age limitations for
entry into a bona fide apprenticeship programs are not affected by the ADEA, as long as
the apprenticeship program meets the standards for the employment of apprentices at less
than the federal minimum wage. This interpretation is based on the fact that most
apprenticeship programs have traditionally been limited to youths under specified ages
and that apprenticeship is an extension of the educational process to prepare young men
and women for skilled employment. 20
However, one court has found the EEOC's view to be invalid. An exemption for
apprenticeship programs contradicts the ADEA's purpose of eliminating arbitrary age
limits that disregard an employee's potential for job performance. Moreover, tradition
cannot be a justification for an age limitation under the Act, and an apprenticeship
program is not merely an extension of a young person's educational process. 21
Observation: This view represents the law only in one federal district and EEOC
will continue to allow employers to place age limits on apprenticeship programs that
qualify under the regulations. However, Quinn could be adopted by courts in other
jurisdictions and plainiffs can use that case as a vehicle to assert a position contrary to
the EEOC's position.
Observation: Even in the EEOC's view, the ADEA will be applied to training
programs that pay at or above the minimum wage.
893 ----Effect of ADEA on bona fide apprenticeship programs [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Regulations:
29 CFR 1625.13 was removed in 1996.
Footnotes
Footnote 20. 29 CFR 1625.13.
Footnote 21. Quinn v New York State Electric & Gas Corp. (1983, ND NY) 569 F Supp
894 Ban on discrimination in training programs for disadvantaged workers

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Discrimination is prohibited in all training programs administered under the Job Training
Partnership Act. The statute states that training programs for disadvantaged workers
must be considered programs receiving federal financial assistance for purposes of the
discrimination prohibitions in the Rehabilitation Act of 1973, Title IX of the Education
Amendments of 1972, and Title VI of the 1964 Civil Rights Act. 22 The Act also
prohibits training discrimination based on an individual's political affiliation or belief. 23
Not only citizens, but also lawfully admitted permanent resident aliens, are protected by
these prohibitions. 24
894 ----Ban on discrimination in training programs for disadvantaged workers
[SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
895 Ban on discrimination in training programs by government contractors

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Under Executive Order 11246, government contractors and subcontractors may not
discriminate against applicants and employees in making selections for training,
including apprenticeship, because of race, color, religion, sex, or national origin. 25
Under the Vietnam Era Veterans Readjustment Assistance Act of 1974, government
contractors and subcontractors may not discriminate against any employee or applicant
because he is a disabled or because he is a Vietnam-era veteran, in selecting individuals
for training, including apprenticeship. 26
895 ----Ban on discrimination in training programs by government contractors
[SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 25. 42 USCS 2000e Note, 202(1).
Footnote 26. 41 CFR 60-250.4(a).
The extent to which job training may be part of a government contractor's duty to provide
a reasonable accommodation under the Rehabilitation Act is discussed under the topic of
handicap discrimination at 173 et seq.
896 Ban on discrimination in training programs by recipients of federal financial

assistance
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Recipients of federal financial assistance are prohibited by Title VI of the Civil Rights
Act of 1964 from discriminating on the basis of race, color, or national origin in
recruitment for or employment in programs receiving such assistance, if the primary
objective of the financial assistance is either to provide employment, or to assist
individuals, through employment, to meet expenses incident to the commencement or
continuation of their education or training, 27 or to provide work experience which
contributes to the education or training of the individuals involved. 28
Title IX of the Education Amendments of 1972 prohibits sex discrimination by the
recipients of federal financial assistance to educational programs in the selection of
individuals and in the financial support for training, including apprenticeship,
professional meetings, conferences, and other related activites. Sex discrimination is also
forbidden with respect to making selections for and financing sabbaticals and leaves of
absence to pursue training. 29
The Rehabilitation Act prohibits handicap discrimination by recipients of federal
financial assistance with regard to making selections and financially supporting training,
including apprenticeship, professional meetings, conferences, and related activities.
Handicap discrimination is also forbidden with regard to providing individuals with
leaves of absence to pursue training. 30
896 ----Ban on discrimination in training programs by recipients of federal
financial assistance [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 27. 28 CFR 42.104(c)(1)(i).
Footnote 28. 28 CFR 42.104(c)(1)(ii).

Footnote 29. 34 CFR 106.51(b)(8).
Footnote 30. 45 CFR 84.11(b)(7).
The extent to which job training may be part of a government contractor's duty to provide
a reasonable accommodation under the Rehabilitation Act is discussed under the topic of
handicap discrimination at 173 et seq.
b. Title VII Restrictions on Discrimination in Training [897-899]
897 Requirement of equal access to training

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Under Title VII, an employer controlling apprenticeship, on-the-job training, retraining,
or other training programs may not discriminate against an individual because of his race,
color, sex, religion, or national origin in admission to a program established to provide
apprenticeship or other training. 31 This requirement is equally applicable to all groups
protected by the statute. Thus, the act was violated when an employer:
offered company-sponsored instruction only to whites; 32
denied a black employee training in favor of a less senior and less experienced white
employee; 33
maintained separate training programs for men and women without any business
justification. 34
A prima facie case of unequal access to training may be made even when an individual
does not apply for training, if the employer's system does not require an application, or if
members of the individual's protected group have found it futile to apply. 35
However, Title VII does not require employers to provide special training to employees
who are not qualified for their current positions. For example, an employer did not
violate Title VII by denying training to a black employee who was not qualified to
perform the duties of a new job to which she was assigned as a result of a corporate
reorganization, when there was no evidence that similarly situated white employees
received training. 36
Caution: When training is normally provided to all employees in a particular job,

Title VII violations have been found when an employer discharges an employee for
performance deficiencies without providing the requisite training to ensure proper
performance. 37
Furthermore, Title VII does not require preferential treatment in admission to

apprenticeship and training programs because of a numerical or percentage imbalance
between the total number or percentage of protected group members in such programs
compared to their number or percentage in the community or in the available work force.
38
897 ----Requirement of equal access to training [SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 32. Clark v American Marine Corp. (1969, ED La) 304 F Supp 603, 2 BNA
Footnote 33. Nation v Winn-Dixie Stores, Inc. (1983, ND Ga) 570 F Supp 1473, 32 BNA
FEP Cas 1602.
Cas 496, 2 CCH EPD 10075, 61 CCH LC 32260, affd (CA5) 446 F2d 47, 9 BNA FEP
Cas 669, 3 CCH EPD 8302, 66 CCH LC 32545.
Footnote 35. Reed v Lockheed Aircraft Corp. (1980, CA9) 613 F2d 757, 22 BNA FEP
Cas 1049, 22 CCH EPD 30602.
Footnote 36. Scott v Coca-Cola Bottling Co. (1984, ED Mo) 583 F Supp 191, 36 BNA
FEP Cas 1875.
898 Requirements concerning access to training that have an adverse impact

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Not only does Title VII require equal access to training programs, 39 but it also bans
requirements that have an adverse impact 40 on the ability of protected groups under the
statute to acquire training, if such requirements are not supported by a business
justification. For example, an employer's requirement that journeyman binders complete
a four-year apprenticeship before attaining craft classification violated the statute where
the required apprenticeship was virtually unobtainable for women and was unnecessary
to the functions of the craft. 41
However, no business justification needs to be asserted
if the complaining party has not clearly demonstrated the adverse impact on her protected
group. For example, a credit that allowed veterans to apply for apprenticeship training
that would otherwise have been denied to them because of their age did not have a
disparate impact on women, even though more men than women in the training area were
veterans. The age credit only gave veterans the same amount of time to apply for
apprenticeship training as was already available to all nonveterans. 42
898 ----Requirements concerning access to training that have an adverse impact
[SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 39. 897.
Footnote 40. As to adverse impact, generally, see 2699 et seq.
Footnote 41. Thompson v Boyle (1979, DC Dist Col) 499 F Supp 1147, 21 BNA FEP
Cas 57, 22 BNA FEP Cas 1500, 28 BNA FEP Cas 1189, 21 CCH EPD 30333, 23 CCH
EPD 30957, 23 CCH EPD 31087, 87 CCH LC 33846, affd in part and revd in part
on other grounds 219 App DC 393, 678 F2d 257, 28 BNA FEP Cas 1614, 25 BNA WH
Cas 614, 28 CCH EPD 32668, 94 CCH LC 34186, cert den 480 US 905, 94 L Ed 2d
Footnote 42. Brown v Puget Sound Electrical Apprenticeship & Training Trust (1984,
CA9) 732 F2d 726, 34 BNA FEP Cas 1201, 34 CCH EPD 34338, cert den 469 US
899 Requirement that trainees be treated in a nondiscriminatory manner

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In addition to regulating access to training programs 43 Title VII prohibits an employer
controlling apprenticeship, on-the-job training, retraining, or other training programs
from discriminating against an individual because of his race, color, sex, religion, or
national origin while he is engaged in an apprenticeship or other training program. 44
Nondiscriminatory treatment of trainees encompasses both the quality and quantity of
training afforded by the employer. For example, an employer violated Title VII by only
providing formalized training for white employees, while making black employees
dependent on more experienced white employees for their training needs. 45 Likewise,
a recently promoted black employee who received superficial training for his new job,
despite the facts that his evaluations consistently mentioned the need for training, the
employer's personnel policy required training as soon as practicable, and that similarly
situated white employees had received the necessary training, demonstrated racial
discrimination in violation of Title VII. 46
Discriminatory treatment in training claims may also involve the jobs to which trainees
are eventually assigned as well as the treatment afforded during the training itself.
However, there may be legitimate reasons for differences in treatment that will not
violate the statute. For example, an employer did not provide a lesser quality of training
to a black trainee who received a less desirable assignment than a white trainee, since the
white trainee displayed more ability and progress in the training program at the time the
assignments became available. 47
Furthermore, Title VII does not require preferential treatment for trainees engaged in
apprenticeship and training programs because of a numerical or percentage imbalance
between the total number or percentage of protected group members in such programs
compared to their number or percentage in the community or in the available work force.
48 Thus, while Title VII may permit employers to assign more desirable duties to black
trainees than to whites under a lawful affirmative action program, the statute does not
require black trainees to receive better assignments. 49
899 ----Requirement that trainees be treated in a nondiscriminatory manner
[SUPPLEMENT]
2000e-2). 116 ALR Fed 1.
Footnotes
Footnote 45. Neely v Grenada (1977, ND Miss) 438 F Supp 390, 15 BNA FEP Cas 1717,
15 CCH EPD 8005, vacated on other grounds (CA5) 624 F2d 547, 23 BNA FEP Cas
1533, 24 CCH EPD 31190.
Cas 1617, 44 CCH EPD 37428.
Footnote 47. Wright v National Archives & Records Service (1979, CA4) 609 F2d 702,
Footnote 49. Wright v National Archives & Records Service (1979, CA4) 609 F2d 702,
Discrimination in job assignments that do not involve training programs is discussed at
924 et seq.
c. ADA Restrictions on Discrimination in Training [900, 901]
900 Requirement that employers not discriminate in training

View Entire Section
Under the ADA, employees with disabilities must have equal opportunities to participate
in training to improve job performance and obtain promotions. Furthermore, if an
employer contracts with others to provide either training services or facilities, the
employer remains liable for any discrimination in the training provided by others. 50
Illustration: An employer could not refuse to provide a dyslexic employee with

training necessary for promotion to a job that requires a great deal of reading on the
assumption that the employee could not perform the higher-level job.
Footnotes
901 Reasonable accommodation to allow participation in training
View Entire Section

Training opportunities cannot be denied because of the need to make accommodations
necessary for people with disabilities to participate, unless accommodation would be an
undue hardship. Required accommodation may include providing an accessible training
location and providing training materials in alternate formats to accommodate a
disability. 51
Illustration: Vision-impaired employees may require training materials in large

print, braille, on tape, or on computer diskette. Employees with a cognitive
impairment may need assistance in understanding materials or test instructions. 52
Employers remain responsible for accommodation if they contract with others to provide
training services or facilities.
Illustration: An employer contracts with a company to provide training to new

employees on an on-going basis, but the site at which the training is held is not
accessible to employees who use a wheelchair. When the employer hires an employee
who uses a wheelchair, the employer must ensure that the training services company
provides an accessible site for training so that the new employee can participate. 53
Recommendation: Contracts for training services or facilities should include a

clause requiring accessibility and other necessary accommodations. 54
Footnotes
Employment Opportunity Commission, January 28, 1992, 3.10(7)(b).
Employment Opportunity Commission, January 28, 1992, 3.10(7)(b).
d. Registered Apprenticeship Programs [902, 903]
902 Generally
View Entire Section
Under the National Apprenticeship Act of 1937, the Secretary of Labor is responsible for:
formulating and promoting labor standards to safeguard the welfare of apprentices;
extending the application of those standards by encouraging their inclusion in
apprenticeship contracts;
bringing together employers and labor for the formulation of apprenticeship programs;
cooperating with state agencies engaged in formulating and promoting apprenticeship
standards. 55
On the basis of the statute, the Labor Department's Bureau of Apprenticeship and
Training (BAT) has issued regulations for the registration of apprenticeship programs,
including the establishment of a written apprenticeship agreement, 56 and regulations to
require equal employment opportunity in apprenticeship and training. 57 An
apprenticeship program or agreement is not eligible for registration unless it complies
with both sets of BAT regulations and the training is in an "apprenticeable occupation".
58
Registration is important because eligibility for various federal statutory purposes and
exemptions is conditioned on a program's compliance with the BAT regulations. For
example, approval of a veteran's application for educational assistance for vocational
training may depend on whether the training program is registered under the National
Apprenticeship Act. 59
In order for an apprenticeship program to be eligible for registration by the BAT or an
approved state agency, it must be embodied in an organized, written plan comprehending
the terms and conditions of employment, training, and supervision of one or more
apprentices. It also must be subscribed to by a sponsor who will carry out the program.
60
Footnotes
Footnote 59. 38 USCS 1652(e); 38 USCS 1671.
903 EEO requirements

View Entire Section
An apprenticeship program plan must contain an equal opportunity pledge and, when
applicable, an affirmative action plan and an authorized apprentice selection method. 61
Requirements for the pledge, affirmative action plan, and selection methods are set forth
in separate regulations that are designed to promote equality of opportunity in
apprenticeship by prohibiting discrimination based on race, color, religion, national
origin, or sex in apprenticeship programs. The policies and procedures set forth in the
regulations apply to all conditions of employment and training during apprenticeship. 62
Specifically, each program sponsor must refrain from such discrimination when it
recruits, selects, employs, and trains apprentices during their apprenticeship. 63
Sponsors must also uniformly apply rules and regulations concerning apprentices,
including but not limited to equality of wages, periodic advancements, promotions,
assignments, job performance, rotation among all work processes of the trade, the
imposition of discipline, and all other aspects of program administration. 64
Footnotes
Footnote 63. 29 CFR 30.3(a)(1).
Footnote 64. 29 CFR 30.3(a)(2).
2. Promotions [904-923]
a. In General [904, 905]
904 Generally
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Employers are prohibited from committing discrimination in the making of promotions
65
by most federal 66 and state 67 job discrimination laws. Although Title VII
does not expressly regulate promotions, selection guidelines interpreting both Title VII
and Executive Order 11246 recognize that promotion decisions are regulated by both
laws. 68 Title VII has been found to prohibit discrimination with regard to an
employer's promotion decisions regardless of whether the opportunity at issue is
objectively "better" than the position currently held by the plaintiff. 69
On its effective date, which varies according to the size of the employer, 70 the
Americans with Disabilities Act (ADA) expressly prohibits discrimination with respect to
an employee's "advancement" in employment. 71 Thus, the ADA is violated if an
employer limits a disabled employee's duties based on a presumption of what is best for
that individual or a presumption about that individual's abilities. The Act is also violated
if the employer adopts a separate track of job promotion or progression for disabled
employees based on a presumption of what jobs they are interested in or are incapable of
performing. 72
In addition, under Executive Order 11246, 73 the Rehabilitation Act of 1973, 74 and
the Vietnam Era Veterans Readjustment Assistance Act of 1974 75 covered government
contractors are explicitly required to pledge nondiscrimination in "upgrading" employees.
Similarly, under Title VI of the Civil Rights Act of 1964, covered recipients of federal
financial assistance are prohibited from discriminating against protected individuals in
"upgrading" 76 or promotions, 77 and sex discrimination in promotions by covered
recipients is prohibited under Title IX of the Education Amendments of 1972. 78
The Government Employee Rights Act of 1991 reaffirms the Senate's commitment to
Rule XLII of the Standing Rules of the Senate, prohibiting discriminatory promotion
practices based on race, color, religion, sex, national origin, age, or physical handicap. 79
Furthermore, the Civil Rights Act of 1991 applies the rights and protections available
under Title VII to employment by the House of Representatives 80 and the
Caution: Even where not expressly prohibited, a federal law, such as the ADEA,
may still implicitly forbid promotion discrimination as one of the terms, conditions, or
privileges of employment that the statute regulates with respect to its discriminatory
prohibitions. 82
Practice Aids: Employment law gender discrimination Third Circuit rules that
denial of promotion based on an equally applied legitimate subjective criterion is not
discrimination. Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509 (1992),
106 Harv LR 2039 (1993).
Through the looking glass: Can Title VII help women and minorities shatter the glass
ceiling? 31 Houston LR 5:1517 (1995).
Keeping women out of the executive suite: The courts' failure to apply Title VII scrutiny
to upper-level jobs, 143 U Pa LR 1:267 (1994).
Regulations:
Case authorities:
Black employee failed to establish that employer's promotion of white rather than black
employee from Account Junior to Account Intermediate violated 42 USCS 1981,
where promotion did not involve new and distinct relationship between employee and
employer, and contractual relationship did not change; both jobs were hourly paid and
had clerical responsibility but no supervisory responsibility, and pay of two jobs differed
by only 89 cents per hour. Patterson v McLean Credit Union (1994, CA4 NC) 39 F3d
515, 66 BNA FEP Cas 360.
Title VII plaintiff's claim that she was subject to sex discrimination when denied
promotion to position of editor of defendant's newspaper was not barred as matter of law
by First Amendment, since First Amendment does not invalidate every incidental
burdening of press that may result from enforcement of civil statutes of general
applicability, such as Title VII, which serve substantial public interests; Title VII's
prohibitions do not directly or indirectly infringe on newspaper's First Amendment rights,
particularly where its application is content-neutral. Hausch v Donrey of Nev., Inc.
(1993, DC Nev) 62 BNA FEP Cas 1553.
Terminated account controller's failure-to-promote claim under 42 USCS 1981 is
denied summarily, where she complains about delay of receiving raise in spring of 1988,
because nothing in record suggests that delay involved opportunity to enter into new
contract with employer. Stephenson v State St. Bank & Trust Co. (1996, DC Mass) 924 F
Supp 1258.
Footnotes
Footnote 65. For purposes of this discussion, promotions involve a change in position
entailing upward mobility to a job of higher pay or status. Job transfers and other
position movements that do not involve increased pay or job status are discussed at
924 et seq. Tenure decisions are discussed at 920-923.
The validity of promotion decisions based on an employer's tests, job requirements, and
other selection devices are discussed at 316 et seq. Discrimination in training required
for a promotion is discussed at 892 et seq. "Automatic" merit pay increases are
discussed at 725 et seq. Decisions on whether to grant or deny a partnership in
businesses involve more than an upward movement by an employee, and are discussed
under the topic of terms and conditions of employment at 701 et seq.
Practice References Promotion practices as violations of civil rights acts. 21 Am Jur
Trials 1, Employment Discrimination Action Under Federal Civil Rights Acts 33 et
seq.
Footnote 66. As to promotion discrimination regulated by 42 USCS 1981, see 905.
Footnote 67.
State Aspects Certain state job discrimiantion laws provide unique exceptions or
conditions relating to discrimination in promotions. These laws are discussed in the
Employment Coordinator at EP-21,940 et seq. State job discrimination laws that
implicitly or explicitly regulate all terms, conditions, or privileges of employment will
also regulate promotions as a term or condition of employment, subject to the same
exceptions applicable to all terms and conditions of employment. Text discussing
terms, conditions, or privileges of employment generally is at 701 et seq., with
appropriate references to state laws. Text discussing exceptions to discriminatory
prohibitions generally is at 268 et seq., with appropriate references to analogous
state laws.
Footnote 73. 41 CFR 60-1.4(a)(1).
Footnote 74. 41 CFR 60-741.4(a).
Footnote 75. 41 CFR 60-250.6(a).
Footnote 76. 28 CFR 42.104(c)(1); 32 CFR 300.4(b)(5).
Footnote 77. 29 CFR 31.3(c)(1).
Footnote 78. 34 CFR 106.51(b)(2).
Practice References 12 Am Jur POF2d 645, Sex Discrimination in
EmploymentPromotion Practices.
Forms: Complaint in federal courtPromotion wrongfully denied on basis of

sexAction under Section 706 of Civil Rights Act of 1964By employee. 16 Am Jur
Footnote 79. P.L. 102-166 319(a).
Footnote 80. P.L. 102-166 117(a).
Footnote 81. P.L. 102-166 117(b).
905 Discrimination in promotions regulated by 1981

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1991, 84 is intended to cover promotions. 85
ruling that the application of 1981 was limited in the employment context to hiring 87
and promotion decisions that involved the formation of new contracts, and did not reach
discriminatory denials of promotions that did not create opportunities for new and
distinct relationships between employees and employers. 88 Whether a promotion
represented a new and distinct relationship depended on whether it involved changes in
job status, pay, or responsibilities. 89 Thus, 1981 claims that alleged racial
discrimination with respect to promotions that involved such changes were held to be
actionable, 90 while 1981 complaints concerning promotions that did not involve such
changes did not state claims on which relief could be granted. 91
905 ----Discrimination in promotions regulated by 1981 [SUPPLEMENT]
Case authorities:
Finding of violation under 42 USCS 1981 for discrimination in promotion was proper,
where black employee sought transfer from hourly position in laundry department to
purchasing and receiving position in which he would have had supervisory duties. Odima
v Westin Tucson Hotel (1995, CA9 Ariz) 53 F3d 1484, 95 CDOS 3196, 95 Daily Journal
Evidence was insufficient to support employee's 42 USCS 1981 claim that employer
intentionally discriminated against her by not promoting her because of race, where
employee did not show direct evidence of discriminatory intent, employer did rebut racial
discrimination claim by explaining that successful candidates were more qualified than
employee, and employee's evidence that she was qualified for promotion did not support
finding that she was more qualified than those promoted. Durham v Xerox Corp. (1994,
CA10 Okla) 18 F3d 836, 64 BNA FEP Cas 397.
Factual issues remained as to whether car dealership discriminated against black
employee in violation of 42 USCS 1981 on basis of race when it refused to promote
him to parts and service director and when it demoted him to mechanic, where employee
had 20 years of experience in auto dealership service industry and had held every
position except director, testimony indicated employee was qualified for position and
white male with less experience was chosen as director, and factual dispute remained
regarding whether car company required reorganization resulting in employee's
demotion. LaPierre v Benson Nissan, Inc. (1996, CA5 La) 86 F3d 444, 71 BNA FEP Cas
407.
Footnotes
Footnote 84. P.L. 102-166 101(2).
Footnote 87. As to hiring, generally, see 557 et seq.
Footnote 88. Patterson v McLean Credit Union (1989, US) 105 L Ed 2d 132, 109 S Ct
Footnote 89. Malhotra v Cotter & Co. (1989, CA7) 885 F2d 1305, 50 BNA FEP Cas
1474, 51 CCH EPD 39329; Hudgens v Harper-Grace Hospitals (1990, ED Mich) 728 F
Supp 1321, 53 CCH EPD 39741.
Footnote 90. Second CircuitWilliams v Chase Manhattan Bank, N.A. (1990, SD NY)
Third CircuitBrown v American Food Service Corp. (1990, ED Pa) 56 BNA FEP Cas
706.
Fourth CircuitMallory v Booth Refrigeration Supply Co. (1989, CA4) 882 F2d 908, 50
Sixth CircuitHudgens v Harper-Grace Hospitals (1990, ED Mich) 728 F Supp 1321, 53
CCH EPD 39741.
Seventh CircuitBusch v St. Xavier College (1991, ND Ill) 1991 US Dist LEXIS 421.
Tenth CircuitLuna v Denver (1989, DC Colo) 718 F Supp 854, 50 BNA FEP Cas
1198, 51 CCH EPD 39455.
DC CircuitBrereton v Communications Satellite Corp. (1990, DC Dist Col) 735 F Supp

1085, app dismd without op (App DC) 925 F2d 488.
Footnote 91. Third CircuitBennun v Rutgers State University (1991, CA3) 941 F2d
154, 56 BNA FEP Cas 746, 56 CCH EPD 40906, cert den (1992 US) 57 CCH EPD
41203.
Fourth CircuitRountree v Fairfax County School Board (1991, CA4) 933 F2d 219, 55
Fifth CircuitValdez v San Antonio Chamber of Commerce (1992, CA5) 974 F2d 592,
60 BNA FEPCas 93, 60 CCH EPD 41847.
Seventh CircuitSofferin v American Airlines, Inc. (1989, ND Ill) 717 F Supp 597, 50
BNA FEP Cas 1245.
b. Requirements for Proving Promotion Discrimination [906-919]
(1). In General [906-914]
906 Availability of opening

View Entire Section
In order to prove discrimination in the making of a promotion decision, there must be an
available opening. When an employee expresses interest in a promotion can be critical in
determining whether an opening exists. For example, a plaintiff who had not made
known his interest in a promotion to general manager until another employee was
temporarily promoted to the position could still prove promotion discrimination because
he made his interest known before a final promotion was made. 92 However, an
employee could not show that she was discriminatorily refused a promotion where the
position in question was not vacant when the employee inquired about it. 93
Once an opening exists, an employer may not discriminatorily manipulate the promotion
process so that it cannot be filled. For example, an employer that knew an employee was
interested in a job opening for which she was qualified could not consider the employee,
and then close the vacancy for discriminatory reasons without filling it, regardless of
whether an application had been officially filed by the employee. 94
Footnotes
Footnote 92. Pierce v F.R. Tripler & Co. (1992, CA2) 955 F2d 820, 58 CCH EPD
41278.
Footnote 93. Burrus v State of Kansas, Department of Administration (DC Kan) No.
83-2018-S, 5/22/86.
Footnote 94. Holland v Dole (1984, MD Tenn) 591 F Supp 983, 35 BNA FEP Cas 776,
35 CCH EPD 34591.
907 --Requirement that promotion establish new work relationship

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The question of whether a promotion claim is actionable under 1981 depends on
whether the nature of the change in position is such that it forms a "new and distinct"
relationship between the employee and the employer. In evaluating such claims, courts
have concentrated on the change, or lack of change, in job status, pay, and responsibility.
A significant single change, such as a change from hourly to salaried employee, is
enough to form a new relationship, 95 while a promotion within a line of progression of
hourly positions will not be enough, even if it ultimately might lead to a promotion to an
exempt position. 96 Therefore, claims for promotion discrimination may be entertained
by courts under 1981 where the changes in position involved a promotion from:
clerk to supervisor with a consequent increase in responsibility and pay; 97
supervisor to a managerial job; 98
one supervisory position to another, but entailing a substantial increase in
responsibilities, duties, and qualifications; 99
an employee to a bank officer at a particular branch, coupled with increased supervisory
responsibility and pay. 1
Conversely, no claim for promotion discrimination could be established under 1981
where changes of position involved a promotion from:
probationary status to tenured status, where the only potential change involved the
terms for discharge; 2
one hourly wage position to another, at the same location, in the same office, and under
the same working conditions; 3
a district superintendent of parks to assistant superintendent of parks, because the
positions were very similar in both duties and reporting responsibilities. 4
Changes in other factors have also been examined in evaluating whether a new and
distinct relationship was formed under 1981. Thus, changes, such as those involving
daily duties, 5 potential liabilities, 6 and pension and other benefits, 7 have been
relevant in evaluating whether a promotion claim comes within the scope of 1981.
Also, consideration has been given to whether the change in position was in the nature of
a routine internal advancement, or was to a position which could be filled from outside
the company. 8
907 --Requirement that promotion establish new work relationship
[SUPPLEMENT]
Case authorities:
Black female's 1981 denial of promotion claim must fail, because (1) position of
Human Resources Manager, which her supervisor suggested creating for her, was never
created, and (2) position of Assistant Benefits/Credit Manager, in plaintiff's own words,
would have involved jobs she was already doing at time so that no new and distinct
relationship was involved to bring nonpromotion claim within reach of 1981. Revis v
Slocomb Indus., Inc. (1993, DC Del) 814 F Supp 1209 (disagreed with by Caldwell v
Frances Nurses Directory, Inc. (ED Pa) 1993 US Dist LEXIS 14355).
White employee cannot maintain 1981 claims, where employee alleges discriminatory
failure to promote since promotion does not rise to level of opportunity to enter new,
distinct relation with employer and therefore all employee's claims do not involve
discrimination in formation of employment contract nor enforcement of contract through
legal process. Ulrich v Exxon Co., U.S.A., Div. of Exxon Corp. (1993, SD Tex) 824 F
Supp 677.
Footnotes
Footnote 95. Hudgens v Harper-Grace Hospitals (1990, ED Mich) 728 F Supp 1321, 53
CCH EPD 39741, also noting that in instances of smaller changes, such as changes in
equipment use or employment grade without accompanying increases in responsibility, a
combination of two or more changes would be necessary to work a new relation between
the parties.
Footnote 96. Dicker v Allstate Life Ins. Co. (1989, ND Ill) 729 F Supp 111, 52 BNA FEP
Cas 141.
Footnote 97. Mallory v Booth Refrigeration Supply Co. (1989, CA4) 882 F2d 908, 50
Footnote 98. Brereton v Communications Satellite Corp. (1990, DC) 735 F Supp 1085.
Footnote 99. Luna v Denver (1989, DC Colo) 718 F Supp 854, 50 BNA FEP Cas 1198,
51 CCH EPD 39455.
Footnote 1. Williams v Chase Manhattan Bank, N.A. (1990, SD NY) 728 F Supp 1004,
52 CCH EPD 39655.
Footnote 2. Sofferin v American Airlines, Inc. (1989, ND Ill) 717 F Supp 597, 50 BNA
FEP Cas 1245.
Footnote 3. Patterson v McLean Credit Union (1990, MD NC) 729 F Supp 35, 51 BNA
FEP Cas 1473, 53 CCH EPD 39740.
Footnote 4. Rivers v Baltimore Dept. of Recreation & Parks (1990, DC Md) 51 BNA
FEP Cas 1886.
CCH EPD 39741; Brown v American Food Service Corp. (1990, ED Pa) 56 BNA FEP
Cas 706, affd without op (1990, CA3 Pa) 915 F2d 1559, 57 BNA FEP Cas 1224.
CCH EPD 39741.
CCH EPD 39741; Brown v American Food Service Corp. (1990, ED Pa) 56 BNA FEP
Cas 706, affd without op (1990, CA3 Pa) 915 F2d 1559, 57 BNA FEP Cas 1224.
Footnote 8. Malhotra v Cotter & Co. (1989, CA7) 885 F2d 1305, 50 BNA FEP Cas 1474,
51 CCH EPD 39329.
908 Filing a formal application required by the employer

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A person seeking to prove discrimination in a promotion decision normally needs to
apply for the promotion when the employer's procedures require such an application. If
the employer has a formal system of posting job openings and permitting employees to
apply for them, an employee's failure to apply has been fatal to her promotion
discrimination claim. 9
However, if a nonapplicant can carry the heavy burden of demonstrating that an
employer's consistently-enforced discriminatory policy deterred him from a futile gesture
of filing a formal application, and correspondingly suffering certain rejection, he is as
much a victim of unlawful discrimination as an individual who did file and was rejected.
10
Demonstrating isolated incidents of discrimination is insufficient to meet this
burden. 11
An employer's active discouragement of an employee's formal application for promotion
may also excuse a plaintiff's failure to file. Thus, a prima facie case of sex discrimination
was established by a female employee who showed that she had been actively and
regularly discouraged orally by supervisors from applying for a promotion for which she
was qualified. Even if the discouragement was motivated by a desire to retain an
excellent worker, it constituted obstructionism "tinged" with sexual bias of a patronizing
character. 12
Discrimination was also found where the employer misled an employee
into believing that there was no vacancy, and then violated its promotional procedure 13
by not publicizing the vacancy, thus, effectively precluding the plaintiff from applying
for it. 14 An employer's denial of employees' requests for copies of job descriptions for
promotion vacancies may be relevant to demonstrate the employer's discouragement of

applications by particular individuals, when the denial makes it more difficult for them to
apply. 15
Footnotes
Footnote 9. Box v A & Tea Co. (1985, CA7) 772 F2d 1372, 38 BNA FEP Cas 1509, 38
Footnote 11. Watie v Fredericks of Hollywood Stores, Inc. (1988, DC Kan) 1988 US Dist
LEXIS 10882.
Footnote 12. Cox v American Cast Iron Pipe Co. (1984, ND Ala) 585 F Supp 1143, 36
34609, revd, in part, vacated, in part on other grounds (CA11) 784 F2d 1546, 40 BNA
Footnote 13. 918.
Footnote 14. Carino v University of Oklahoma Bd. of Regents (1984, CA10) 750 F2d
Footnote 15. Migon v Thorek Hosp. & Medical Center (1990, ND Ill) 1990 US Dist
LEXIS 8079.
For a discussion of how an employer's neutral selection procedures, including advertising
for job vacancies, may be challenged under the adverse impact method of proving
909 Establishing interest in a position when a formal application is not required

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Submitting an application for a position as a prerequisite for a promotion discrimination
claim 16 may not be necessary where the employer lacks a promotion procedure or uses
an informal promotion system, such as one in which employees do not apply for
promotions but instead are sought out by managers. When this is the case, a claimant
may still establish the application element of a prima facie case by showing a sufficient
interest in the position. Where supervisory vacancies are not announced and no
application process exists, it may be improper to curtail promotion discrimination claims
because the employees never applied for the positions. 17 However, courts have not
been uniform in their views of what constitutes sufficient interest. For example, an
employee who only expressed a general and vague interest in receiving training to
advance to another position, and only mentioned the position in question as an example
of the type of promotion she might seek, failed to satisfy the application requirement. 18
A more generous view was taken where an employer relied on "word of mouth" and
informal review procedures for promotion decisions. The employer was found to have a
duty to consider all those who reasonably might be interested, as well as those who heard
of the opening and expressed an interest. Otherwise, the use of notice procedures would
result in vacancy information being available to only one segment of a work force, and
would place no check on individual biases. 19 In another situation in which an employer
had no formal application procedure for high-level executive positions, a plaintiff
established his interest in a position by informally communicating his desire to
management personally and through the employee currently occupying the position.
Also, the fact that the plaintiff was given perfunctory consideration for the promotion
indicated the employer knew of his interest in it. 20
Observation: The more developed an employer's promotion policy is in terms of

providing notice of available positions and requiring applications, the more effort an
employee will have to make to demonstrate interest in the position. In contrast, where
the employer's notice and application procedures are less refined, it will be more
reasonable to excuse an employee for being unaware of an opening, and,
correspondingly, less will be required in order for him to demonstrate a sufficient
interest in the position.
909 ----Establishing interest in a position when a formal application is not
required [SUPPLEMENT]
Case authorities:
Black Christian male, who claimed that he had been denied promotions because of his
race and his religion, failed to establish prima facie case of discriminatory failure to
promote, where plaintiff failed to produce any evidence that he had applied for promotion
to particular position; further, even assuming that plaintiff informally sought promotions
at various times to particular positions, as he claimed, no evidence was submitted
concerning individuals who were allegedly promoted in place of plaintiff. Evans v Bally's
Health & Tennis (1994, DC Md) 64 BNA FEP Cas 33.
Footnotes
Footnote 16. 908.
Footnote 17. Bernard v Gulf Oil Corp. (1988, CA5) 841 F2d 547, 49 BNA FEP Cas
1855, 46 CCH EPD 37899.
Footnote 18. Box v A & Tea Co. (1985, CA7) 772 F2d 1372, 38 BNA FEP Cas 1509,
Footnote 19. Carmichael v Birmingham Saw Works (1984, CA11) 738 F2d 1126, 35
Footnote 20. Pierce v F.R. Tripler & Co. (1992, CA2) 955 F2d 820, 58 CCH EPD
41278.
910 Requirement that candidate be available for promotion

View Entire Section
To prove discrimination in a promotion decision, an employee needs to show not only
that the employer did not select him for an available position, 21 but also that the
employee remained available as a candidate. For example, an employee who resigned
while a promotion decision was pending was unable to show he was adversely affected
by the employer's subsequent selection for the promotion. 22
Footnotes
Footnote 21. 906.
Footnote 22. Bempah v Kroger Co. (1989, SD Ga) 51 BNA FEP Cas 195, 52 CCH EPD
39566.
911 Establishing qualifications for a promotion

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There is a lack of agreement about how qualified an employee must be for a position in
order to raise a prima facie case of promotion discrimination. While some courts have
held that a plaintiff must show that she was equally or more qualified for the position
than those individuals who were promoted, 23 other courts have only required a plaintiff
prove minimal qualifications for the job. 24
Regardless of what is required with respect to a prima facie case, candidates rejected for
promotions will not prevail in their discrimination claims if they are unqualified for the
job they seek. 25 A plaintiff should be prepared to demonstrate comparatively superior
qualifications to those of the person selected for the promotion. 26
However, the required qualifications must be job related. 27
911 ----Establishing qualifications for a promotion [SUPPLEMENT]

Case authorities:
African-American female record clerk, denied promotion to Human Resources Secretary
in favor of white female with less seniority, has 42 USCS 1981 claim denied
summarily, where employer's stated belief that white female was more qualified for
position is substantially supported by her record, including prior work experience,
academic credentials, job evaluations, and lack of disciplinary meetings and reports,
because race discrimination is not established simply because white employee is given
position sought by qualified African-American employee. Lidge-Myrtil v Deere & Co.
(1994, WD Mo) 857 F Supp 666.
Footnotes
Footnote 23. Gairola v Virginia Dept. of General Services (1985, CA4) 753 F2d 1281, 36
BNA FEP Cas 1800, 36 CCH EPD 34980; Wilson v Communications Workers of
America (1991, DC Dist Col) 767 F Supp 304; Wecker v Kansas Power & Light
Company (DC Kan) Civil Action No. 84-4202-S, 5/27/86.
Footnote 24. Clark v Huntsville City Bd. of Education (1983, CA11) 717 F2d 525, 33
BNA FEP Cas 15, 32 CCH EPD 33892; Mitchell v Baldrige (1985) 245 App DC 60,
For a discussion of the further dispute regarding the degree of proof necessary to make a
prima facie case of job discrimination involving qualifications in the context of hiring,
see 412 et seq.
Footnote 25. Ferguson v E. I. Du Pont de Nemours & Co. (1983, DC Del) 560 F Supp
1172, 31 BNA FEP Cas 795, 33 CCH EPD 34131; Summers v Allis Chalmers (1983,
Footnote 26. Thomas v Cooper Industries, Inc. (1986, WD NC) 627 F Supp 655, 39 BNA
FEP Cas 1826.
Footnote 27. 913.
912 Demonstrating superior qualifications

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As in any job discrimination action in which qualifications are at issue, a claimant in a
protected group who is able to demonstrate superior qualifications to the person selected
for a promotion will normally prevail, since such a demonstration raises an inference that
potentially unlawful factors not based on merit 28 formed the basis for the employment
decision. An employer certainly cannot rebut this discriminatory inference if it is unable
sufficiently to articulate its reasons for choosing one candidate over another. For
example, an employer's promotion decision was found to be discriminatory where a
manager's "gut feeling" that a white employee was more qualified for a promotion than a
black employee was neither clear nor reasonably specific. 29
Furthermore, the comparisons between disappointed candidates for promotion and those
selected can only be made at the time of promotion decision, since after-the-fact
justifications do not dispel an inference of discrimination. Thus, an employer who
claimed to have selected the superior candidates for promotion failed to provide a
nondiscriminatory justification for why it had not interviewed or considered other
applicants for those positions when it conceded that both groups were qualified for the
positions. 30
It is the employer's assessment of comparative qualifications that controls the evaluation
of whether discrimination has occurred. The plaintiff's personal assessment of his
relative qualifications vis-a-vis other candidates, outside of the context of the employer's
job requirements, is unpersuasive. 31
The qualifications comparison will not raise an inference of discrimination unless it is
between the claimant and the successful candidate. Thus, the fact that a less qualified
male candidate was also rejected for a position sought by a claimant did not demonstrate
sex discrimination against her. 32
Any comparison of qualifications does not have to be between two current employees in
order to raise an inference of discrimination, if outside candidates are also considered.
For instance, a female employee proved promotion discrimination by demonstrating that
she was more qualified than a male whom the employer had hired from outside the
company, despite the employer's contention that it had hired the male to avoid losing
him. 33
Even if the employer demonstrates the superior qualifications of a candidate whom it has
selected, a person claiming bias in the selection may prevail if discrimination by the
employer was a significant factor in the differences in qualifications. For instance, an
employer's explanation that it promoted a white scientist over an Oriental scientist
because the former was better qualified by reason of education, training, and experience
was an inadequate explanation where the selectee had been given preferential treatment
in access to training opportunities and in de facto promotions to supervisory positions
before vacancies arose. In addition, unlike the Oriental candidate, he had been permitted
to prepare the questions to be used during the oral examination on which the promotion
decision was based. 34
912 ----Demonstrating superior qualifications [SUPPLEMENT]
Case authorities:
District court erred when it required female plaintiff, who had alleged that she had not
received junior faculty position because of sex discrimination, to prove that she was
equally or more qualified than male who had been hired for position, since all plaintiff
had to show, in making out her prima facie case, were her objective qualifications for job.
Kobrin v University of Minn. (1994, CA8 Minn) 34 F3d 698, 65 BNA FEP Cas 1624.
Footnotes
Footnote 28. As to the use of nonmerit criteria, see 916.
Footnote 29. Eccleston v Secretary of Navy (1988, DC Dist Col) 700 F Supp 67, 49 CCH
EPD 38663.
Footnote 30. Lams v General Waterworks Corp. (1985, CA8) 766 F2d 386, 38 BNA FEP
Cas 516, 37 CCH EPD 35426.
Footnote 31. Payne v FMC Corp. (1985, SD W Va) 609 F Supp 1132, 37 BNA FEP Cas
1508.
Footnote 32. Wynn v Columbus Municipal Separate School Dist. (1988, ND Miss) 692 F
FEP Cas 1826.
Footnote 34. Yee v Department of Environmental Services (1987, CA9) 826 F2d 877, 47
913 Relating qualifications to the employer's job requirements

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An employee may raise an inference of promotion discrimination by demonstrating that
he is qualified under the employer's stated job requirements, or that he is better qualified
than the selected candidate based on those requirements. Employers may reasonably
choose to emphasize a particular job related attribute and give it additional weight when
making a promotion selection. For instance, an employer justified its selection of a
candidate who was stronger in administrative skills over a minority candidate who was
stronger in technical skills, since the job description indicated that administrative and
supervisory skills constituted a large portion of the required duties. 35
However,
discrimination was a factor in the decision to promote a white employee over a black
employee, based on experience the white employee gained that was not available to any
black employees because of their race. 36
Furthermore, while an employer's job requirements need not remain static, but may
change for nondiscriminatory reasons, assessments of comparative qualifications must be
made based on the requirements applied at the time the promotion decision was made.
Thus, no Title VII violation was demonstrated by a college professor who had been
denied a promotion due to her inadequate record of publishing since her last promotion,
when some of the males being used as comparisons had been promoted before the
university justifiably increased its emphasis on published research. 37
Regardless of what qualifications are required, an employer does not act unlawfully if it
fails to apply those requirements equally to all candidates, and if the selectee and the
applicant who was not selected belong to different protected groups, which often happens
when no formal criteria have been established prior to making the decision. 38
913 ----Relating qualifications to the employer's job requirements
[SUPPLEMENT]
Practice Aids: Sufficiency of defendant's nondiscriminatory reason to rebut inference
of sex discrimination in promotion or demotion of employee as violation of Title VII of
Civil Rights Act of 1964 (42 USCS 2000e et seq.) 111 ALR Fed 1.
Footnotes
Footnote 35. Colon-Sanchez v Marsh (1984, CA10) 733 F2d 78, 34 BNA FEP Cas 1144,
FEP Cas 1608, 35 CCH EPD 34663.
Annotation: Sufficiency of defendant's nondiscriminatory reason to rebut inference of
sex discrimination in promotion or demotion of employee as violation of Title VII of
Civil Rights Act of 1964 (42 USCS 2000e et seq.), 111 ALR Fed 1.
Footnote 36. Edwards v Hodel (1990, DC Colo) 738 F Supp 426, 53 BNA FEP Cas 13.
Footnote 37. Wu v Thomas (ND Ala) No. 84-G-2159-W, 10/24/86, affd (1988, CA11)
847 F2d 1480, 46 BNA FEP Cas 1666, 28 BNA WH Cas 1116, 46 CCH EPD 38077, 109
CCH LC 35092.
Footnote 38. Neely v Grenada (1977, ND Miss) 438 F Supp 390, 15 BNA FEP Cas 1717,
15 CCH EPD 8005.
914 Effect of prior performance on employee's satisfaction of job requirements

View Entire Section
Go to Supplement
A claimant's demonstration of a discriminatory promotion decision that centers on a
showing that he is qualified, or comparatively better qualified for the job than other
candidates, based on the employer's job requirements, often involves an analysis of the
employee's past history of work performance with the employer. For example, an
inference of discrimination will arise if the employer's rejection of the claimant is
inconsistent with the claimant's past successful performance reviews. 39 An inference of

discrimination may also be raised by a discriminatory performance appraisal that
prevents a candidate from obtaining a promotion, if a connection is shown between the
appraisal and the promotion decision. 40
Employers have successfully defended their decisions not to promote a particular
claimant due to his past poor performance, by demonstrating that objective deficiencies
exist with respect to his work in his present position. Thus, an employer lawfully denied
promotions based on past performance when an employee:
had poor work habits and was deficient in the required bookkeeping and inventory
control skills needed for the job; 41
continually returned late from breaks and lunch; 42
was considered unreliable under an equally-applied promotion policy that equated the
taking of excessive amounts of approved sick leave with poor attendance; 43
was frequently absent, due to stress-related headaches, and his sale of real estate while
on the job distracted his attention from his duties. 44
Employers have also successfully relied upon subjective deficiencies in an employee's
past performance to legitimately demonstrate a nondiscriminatory reason for denying a
promotion, such as when the employee:
was not aggressive, cooperative, or positive; 45
had undesirable "personality characteristics" required for a supervisory position; 46
was outspoken and aggressive, while the selecting official was a cautious and deliberate
person, making it reasonable to conclude that the employee would clash with the
prevailing management style; 47
had difficulty in her working relationships with co-employees and people in the field,
which greatly affected her ability to produce average to superior work; 48
had a poor attitude; 49
had a loud and aggressive nature, and was believed to have a racist attitude that was the
cause of racial strife at the plant; 50
was reported to be unable to get along with others, even if the reports were incorrect, as
long as they were made in good faith and not offered as a pretext for discrimination; 51
had less satisfactory letters of recommendation, even though she was otherwise the most
objectively qualified person, when there was no evidence that the use of such letters
actually discriminated on the basis of sex. 52
However, alleged subjective deficiencies in an employee's past performance will not
justify her nonselection if they are based on discriminatory evaluations, such as sexual
stereotyping. 53
914 ----Effect of prior performance on employee's satisfaction of job requirements

[SUPPLEMENT]
Case authorities:
Black employee who claimed he was denied promotion due to race discrimination failed
to make out prima facie case, where he had been told to become more serious about his
job, improve his punctuality, and stop horsing around, and he had also been disciplined
numerous times and was warned repeatedly that another violation could result in his
dismissal. Kirk v Federal Property Management Corp. (1994, CA7 Ind) 64 BNA FEP Cas
698, 64 CCH EPD 42950.
Footnotes
Footnote 39. Hernandez v Powell (1977, ND Tex) 424 F Supp 479, 14 BNA FEP Cas
374, 14 CCH EPD 7530; Marquez v Omaha Dist. Sales Office, Ford Div. of Ford
Motor Co. (1971, CA8) 440 F2d 1157, 3 BNA FEP Cas 275, 3 CCH EPD 8156.
Footnote 40. Monroe v Burlington Industries, Inc. (1986, CA4) 784 F2d 568, 40 BNA
FEP Cas 273, 39 CCH EPD 35942, holding that an employer was not justified in
rejecting an employee for a promotion where it gave her a below average promotion
potentiality rating primarily based on her supervisor's assessment of her attendance as
unsatisfactory, when the employer had not established standards by which employee
attendance could be judged satisfactory or unsatisfactory.
However, a promotion decision was not unlawful where there was no evidence of racial
bias by the plant manager who had sole authority for making the promotion decision, and
there was evidence that he based his decision on his personal observations of the
plaintiff, not on the supervisor's racially biased recommendations. Gunter v Coca-Cola
Co. (1988, CA11) 843 F2d 482, 46 BNA FEP Cas 1081, 46 CCH EPD 37927.
Footnote 41. Lewis v University of Pittsburgh (1983, CA3) 725 F2d 910, 33 BNA FEP
Cas 1091, 33 CCH EPD 34054.
Cas 1753, 35 CCH EPD 34908.
Footnote 43. Gilchrist v Bolger (1984, CA11) 733 F2d 1551, 35 BNA FEP Cas 81, 34
CCH EPD 34463.
Footnote 44. Nesmith v Martin Marietta Aerospace (1987, MD Fla) 676 F Supp 1183, 46
37606, also noting that the employee did not possess the skills necessary for the positions
he desired, and could not handle the stree of such positions.
Footnote 45. Hill v Mobile Press Register, Inc. (1991, SD Ala) 1991 US Dist LEXIS
12305.
Footnote 46. Jayasinghe v Bethlehem Steel Corp. (1985, CA7) 760 F2d 132, 37 BNA

Footnote 47. Nieves v Metropolitan Dade County (1984, SD Fla) 598 F Supp 955, 36
83-2018-S, 5/22/86.
Cas 1753, 35 CCH EPD 34908.
Footnote 50. Kellner v General Refractories Co. (1986, ND Ind) 631 F Supp 939, 41
BNA FEP Cas 538.
Footnote 51. Nieves v Metropolitan Dade County (1984, SD Fla) 598 F Supp 955, 36
Footnote 52. McCarthney v Griffin-Spalding County Bd. of Education (1986, CA11)
791F2d 1549, 41 BNA FEP Cas 245, 41 CCH EPD 36426.
FEP Cas 1826, holding that an employer unlawfully denied a female employee a
promotion where she demonstrated that she was more qualified for the position of
employee relations manager than the male hired from the outside, that her supervisor was
fired for refusing to hire the less qualified male, and that a corporate officer stated that a
woman could not handle the union relations aspect of the job.
(2). Relevant Factors in Promotion Discrimination Claims [915-919]
915 Who makes the promotion decision

View Entire Section
The fact of who makes the promotion decision at issue may have a significant effect on
the evaluation of whether unlawful discrimination is found. For example, an inference of
discrimination cannot arise from the acts of someone who did not take part in the
decision-making process. Thus, where an interviewer played no role in denying a
candidate a promotion, his motives were irrelevant, even assuming that he told a female
employee that some workers did not want to work for a female supervisor. There was no
causal connection established between his statements and her rejection for the promotion.
54 However, unlawful promotion decision making was shown where there was direct
evidence of the selecting manager's reluctance to consider women for high level jobs. 55
The characteristics of the individual or group an employer entrusts with making the
promotion decision may also affect the evaluation of whether a promotion involved
discrimination. While an inference of discrimination will not arise simply because the
decision makers are all of different protected groups than the claimant, since there is no
allowable presumption that, for example, all whites are prejudiced against blacks, 56
where the promotion decisions are primarily based on subjective requirements, 57 such
an inference may be raised by the fact that all the decision makers were nonminorities.
Thus, an inference of discrimination was established by an employer's subjective
promotion policy where performance appraisals and promotion decisions were made by
an all-white supervisory staff, no job vacancies were posted, 58 and seniority controlled
only when a supervisor decided that applicants were approximately equal in
qualifications. 59
Footnotes
Footnote 54. Mira v Monroe County School Bd. (1988, SD Fla) 687 F Supp 1538, 47
Footnote 55. Morley v New England Tel. Co. (1987, DC Mass) 47 BNA FEP Cas 917.
Footnote 56. Minority Police Officers Ass'n v South Bend (1985, ND Ind) 617 F Supp
1330, 42 BNA FEP Cas 503, affd (CA7) 801 F2d 964, 42 BNA FEP Cas 525, 41 CCH
EPD 36508.
Footnote 57. As to the use of subjective requirements, see 914.
Footnote 58. As to job posting requirements, see 909.
Footnote 59. Cunningham v J.C. Penney Co. (1986, ND Miss) 45 BNA FEP Cas 1025.
916 Use of nonmerit criteria

View Entire Section
The evaluation of whether a promotion is discriminatory will not be totally controlled by
the fact that a nonmerit factor, instead of a job related factor like qualifications, was
involved in the decision. Nonmerit criteria will provide a defense to a charge of
discrimination, unless the claimant can show that their use is only a pretextual excuse for
a discriminatory motive. For example, a settlement agreement in a previous
discrimination case that provided for that claimant's promotion was a legitimate
nondiscriminatory reason for not selecting a subsequent discrimination claimant. 60
Also, an employer may rely on an inaccurate judgment about the plaintiff's situation, if it
was not motivated by discrimination. Thus, an employer did not discriminate against a
black applicant for promotion where she was not selected partly because her husband had
a reputation for drug abuse. 61
Similarly, favoritism for another candidate which is not premised on unlawful basis will
not violate the job discrimination laws. For instance, a white candidate's selection
because she was a friend of the white selecting official, and because her mother was
well-connected politically, did not, by itself, demonstrate racial discrimination against a
black candidate. 62
Footnotes
Footnote 60. Carey v U.S. Postal Service (1987, CA10) 812 F2d 621, 43 BNA FEP Cas
156, 43 CCH EPD 37106.
Footnote 61. Holloway v Professional Care Centers Heritage Park, Inc. (1986, ED Mo)
Footnote 62. Autry v North Carolina Dept. of Human Resources (1987, CA4) 820 F2d
Annotation: Nature and burden of proof in Title VII action alleging favoritism in
promotion or job assignment due to sexual or romantic relationship between supervisor
and another, 86 ALR Fed 230.
917 Employer's past history of discrimination

View Entire Section
An employer with a past history of discrimination is at a severe disadvantage with respect
to demonstrating that a current challenged promotional decision is free of unlawful
motivation. For instance, where the employer had had a dual system of employment in
which white males had historically held supervisor positions and higher paying jobs, and
vestiges of this prior segregation remained after Title VII was enacted, black claimants
raised an inference of promotion discrimination despite their failure to apply for a
promotion, as required, 63 or to protest allegedly unjustified job performance criticisms.
64 Under the employment atmosphere that existed, the employer had to demonstrate
that the plaintiffs would have been treated the same had they been white. 65
Furthermore, courts may give weight to evidence of an employer's past discrimination in
other employment situations in evaluating whether a claimant's promotional
discrimination claim is valid. 66
Recommendation: Employers who have a past history of unlawful discrimination

should consider rectifying the effects of such policies and demonstrating a current
nondiscriminatory posture, through the use of voluntary affirmative action programs.
67
Footnotes
Footnote 63. As to the need to file an application, see 908.
Footnote 64. As to the effect of prior poor performance reviews, see 914.
Footnote 65. White v University of Arkansas (1986, CA8) 806 F2d 790, 42 BNA FEP
Cas 749, 41 CCH EPD 36707.
Footnote 66. Fisher v Procter & Gamble Mfg. Co. (1980, CA5) 613 F2d 527, 22 BNA
929, 24 BNA FEP Cas 1219, 24 CCH EPD 31478; Lynn v Regents of University of
California (1981, CA9) 656 F2d 1337, 26 BNA FEP Cas 1391, 28 BNA FEP Cas 410, 27
918 Employer's failure to follow established promotion procedures

View Entire Section
While the job discrimination laws do not require an employer to follow its own
promotion policies, an inference of unlawful discrimination may arise when it does not
do so without a legitimate reason for the deviation, 68 or when the policies are applied
more harshly to the claimant or members of his or her protected group. For example, an
employer did not present a nondiscriminatory justification for rejecting a candidate for
promotion where:
it based its decision on evaluations of him that were conducted outside of the time frame
specified by its promotion policy for determining promotability. 69
the selecting official disregarded the published guidelines on the composition of
selection panels and chose to rely solely on an unvalidated and subjective oral test to
make his decision. 70
it measured a black candidate against a substantially higher performance standard 71
than it used to consider his white counterparts for a promotion. 72
Furthermore, an employer may create an inference of discrimination by not being
uniform in the exceptions it allows to its promotion policies. For instance, an employer's
claim that it was thwarted by personnel rules from granting a black employee the
requested promotion could not explain why it did not excercise its discretion to "bend"
the rules as it had in the past for a white employee, or why it had exceeded the bounds of
its discretion on another occasion in order to promote white employees. 73
Conversely, an employer that consistently follows its promotion policies will be in a
strong position to dispel any potential discriminatory inferences if a candidate is rejected
solely on the basis of those policies. For example, a promotion policy of crediting foreign
rather than domestic experience with the company more highly in considering promotion
candidates' qualifications did not amount to discrimination if the policy was uniformly
applied to all candidates. 74
Even if an employer does not consistently follow its promotion policies, it may prevail if
it can establish that the person promoted met the qualifications for promotion while the
person not promoted did not, and that its selection of finalists for the promotion was
made on a nondiscriminatory basis. Because the promotee met all of the qualifications
for the position, due to his past experience and a temporary assignment, and the plaintiff
did not, and there was no discrimination in the selection of finalists for the position, the
employer's possible violation of a regulation by giving the promotee too long a temporary
assignment was not a basis for a Title VII action. 75
Footnotes
Footnote 68. Ibrahim v New York State Dept. of Health (1990, CA2) 904 F2d 161, 53
CCH EPD 39988.
Cas 1753, 35 CCH EPD 34908.
Footnote 70. Verdell v Wilson (1985, ED NY) 602 F Supp 1427, 37 BNA FEP Cas 216.
Footnote 71. 913.
Footnote 72. Lowery v WMC-TV (1987, WD Tenn) 658 F Supp 1240, 43 BNA FEP Cas
972, 43 CCH EPD 37278.
Footnote 73. Morrison v Booth (1985, CA11) 763 F2d 1366, 38 BNA FEP Cas 145, 37
CCH EPD 35443.
Footnote 74. Laurence v Chevron, U.S.A., Inc. (1989, CA5) 885 F2d 280, 50 BNA FEP
Cas 1839, 51 CCH EPD 39394.
Footnote 75. Gibson v Frank (1991, CA6) 946 F2d 1229, 57 BNA FEP Cas 172, 57 CCH
EPD 41043.
919 Statistical disparities

View Entire Section

A statistical demonstration that a particular group protected by job discrimination laws is
underrepresented in higher level jobs, compared to other groups, may present an
inference that the employer has exercised a discriminatory motivation in making
promotion decisions. How such statistical disparities are shown depends on the pool
from which the employer draws the majority of its promotional candidates. For example,
when an employer promotes from within its own work force, statistics displaying a gross
disparity in the low percentage of women in upper-level positions, as opposed to their
much greater percentage in lower-level positions from which promotions are made, are
sufficient to establish proof of sex discrimination. 76 Conversely, when an employer
promotes from within its work force for certain positions, evidence of a statistical
underrepresentation of black workers in those jobs, compared with their representation in
the local labor market, could not create an inference of racial discrimination in
promotions. 77
Selecting the appropriate pool of candidates on which to base a statistical inference of
discrimination may also require the claimant to consider the interest and qualifications of
potential candidates. For example, the EEOC's statistical evidence of a large retail
employer's alleged sex discrimination in promotions to commission sales positions
incorrectly assumed that all noncommission salespersons were equally interested in,
qualified for, and had applied for those jobs. 78
Disparate treatment discrimination in promotions may be demonstrated not only by
disparaties in representation, but also by statistical disparities showing significant
differences between:
the greater length of time between application for promotion and actual promotion for
black as opposed to white employees; 79
promotion rates among similarly qualified members of different racial groups or sexes;
80
the length of time it takes minorities, as opposed to white employees, to be promoted.
81
Statistical inferences of discriminatory promotion decisions are also created when an
employer has insufficient checks on the exercise of subjectivity by supervisory personnel,
and the data indicate that discretion has been exercised in a discriminatory manner with
respect to determining a candidate's satisfaction of job requirements for promotion. 82
An employer's job requirements for a promotion may also be statistically shown to have
an adverse impact on a group protected by job discrimination laws. 83
Disparate impact discrimination may be proved under the Civil Rights Act of 1991 either
by showing that a particular employment practice causes a disparate impact or that the
elements of a respondent's decision making process are not capable of separation for
analysis 84 As a result, there was no need to pinpoint the particular discriminatory
aspects of a promotion system that lacked uniform criteria, relied on subjective and
variable criteria, permitted decision makers to ignore established procedures, and had no
written policies or justifications for decisions. The elements of this process were not
separable for analysis. Also, the specific practice of permitting lower level supervisors to
make promotion decisions without objective and publicized decision-making criteria
permitted their conscious and subconscious prejudices to affect promotion decisions,
resulting in adverse impact on women. 85
To establish evidence of disparate impact, if a promotion examination serves more than
one function, each function must be analyzed independently. When an examination was
used both as a pass-fail mechanism requiring each candidate to pass before advancing to
the next step of the process, and as a factor in composite scores used to compute a
candidate's promotion eligibility, analysis was required of both the rates at which blacks
and whites passed the examination, which did not show disparate impact, and the
candidates' minimum test scores, which did. 86
Footnotes
Footnote 76. Shidaker v Tisch (1987, CA7) 833 F2d 627, 45 BNA FEP Cas 494, 45 CCH
EPD 37626, cert den (US) 101 L Ed 2d 933, 108 S Ct 2900, 47 BNA FEP Cas 176, 47
CCH EPD 38179.
Footnote 77. Goodman v Lukens Steel Co. (1984, ED Pa) 580 F Supp 1114, 39 BNA
FEP Cas 617, affd in part and revd in part, vacated, in part on other grounds (CA3) 777
F2d 113, 39 BNA FEP Cas 658, 38 CCH EPD 35719, cert gr 479 US 982, 93 L Ed 2d
573, 107 S Ct 568, affd 482 US 656, 96 L Ed 2d 572, 107 S Ct 2617, 44 BNA FEP Cas
1, 43 CCH EPD 37099, cert dismd 487 US 1211, 101 L Ed 2d 896, 108 S Ct 2860.
Footnote 78. EEOC v Sears, Roebuck & Co. (1986, ND Ill) 628 F Supp 1264, 39 BNA
FEP Cas 1672, 39 BNA FEP Cas 1745, 39 CCH EPD 35853, affd (CA7) 839 F2d 302,
For a full discussion of choosing the appropriate labor pool on which to base a statistical
inference of job discrimination, see 2783 et seq.
Footnote 79. Osahar v Carlin (1986, SD Fla) 642 F Supp 448, 46 BNA FEP Cas 1768.
Footnote 80. Jones v Mississippi Dept. of Corrections (1985, ND Miss) 615 F Supp 456,
51 BNA FEP Cas 1266; EEOC v Ball Corp. (1981, CA6) 661 F2d 531, 26 BNA FEP Cas
1701, 27 CCH EPD 32150; Rich v Martin Marietta Corp. (1979, DC Colo) 467 F Supp
Cas 819, 22 CCH EPD 30831.
445, 4 CCH EPD 7689.
Footnote 83. For a full discussion of how to prove adverse impact discrimination in all
employment situations, see 2699 et seq. For a discussion of adverse impact
challenges to specific job requirements, see 420 et seq.
Footnote 85. Stender v Lucky Stores, Inc. (1992, ND Cal) 803 F Supp 259, 92 Daily
Journal DAR 13246, 59 CCH EPD 41788.
Footnote 86. Waisome v Port Authority of New York & New Jersey (1991, CA2) 948
However, statistical disparities resulting from a police promotion examination could not
be attributed to evidence that black police officers were disproportionately assigned to
cases involving black victims or suspects, since no information was presented to show
that this pattern of assignment caused them to score poorly on the examination. Black
Law Enforcement Officers Assn. v Akron (1990, CA6) 1990 US App LEXIS 21742.
c. Claims of Discrimination in Granting Tenure [920, 921]
920 Comparing discrimination claims involving tenure and promotions

View Entire Section
Tenure decisions by both colleges and local school boards often involve a mixture of
promotion and discharge claims. Essentially, where an individual does not receive
tenure, he not only does not receive a promotion to a permanent position, he normally
loses his position altogether. Like promotion claims, proof of tenure discrimination
requires a showing that the person was qualified 87 for tenure, was available and
considered for an open tenure position, 88 and was denied tenure under circumstances
creating an inference of unlawful discrimination. 89
Just as in promotion discrimination claims, who makes the tenure decision and that
person or group's causal connection to the alleged discrimination must be demonstrated.
90 Therefore, although one department member's vote against a female candidate was
shown to be influenced by impermissible sex discrimination at the initial step of the
decision-making process, the entire decision-making process was not shown to be
discriminatory. The candidate failed to demonstrate that sex discrimination in the earlier
process influenced a later negative administrative determination, which was an
independent judgment based on different criteria. 91
Observation: To the extent that tenure involves an "upgrade" or a "promotion," it

can be viewed as being regulated under the same federal laws that regulate promotion
discrimination. 92
Observation: To the extent that tenure decisions, like promotion decisions, involve
the refusal or impairment of the right to make contracts, they can be regulated under 42
USCS 1981. 93
A difference between proving discrimination in tenure, as opposed to promotion,
involves the special deference some courts give to an employer's evaluation of a tenure
candidate's qualifications. 94 Furthermore, due to the unique aspects of tenure
decisions, a discrimination victim in a tenure decision may be entitled to remedies that
are inapplicable in the normal promotion discrimination situation. 95
Disability discrimination in tenure is prohibited by the Americans With Disabilities Act.
96
Footnotes
Footnote 87. 911-914.
Footnote 88. 906-910.
Footnote 89. Zahorik v Cornell University (1984, CA2) 729 F2d 85, 34 BNA FEP Cas
165, 33 CCH EPD 34220; Kunda v Muhlenberg College (1978, ED Pa) 463 F Supp
Footnote 90. 915.
Footnote 91. EEOC v Boston University (1984, DC Mass) 35 BNA FEP Cas 708.
Footnote 92. 905.
Footnote 93. 920.
Footnote 94. 921.
Footnote 95. 923.
Footnote 96. 29 CFR 1630.4(b)
921 Degree of judicial deference given academic evaluation of qualifications

View Entire Section
When determining whether a claimant has presented a satisfactory case of discrimination
in tenure, some courts give special weight and deference to a school's assessment of a
tenure candidate's qualifications. Although recognizing that tenure decisions are subject
to Title VII scrutiny, the Second Circuit feels that courts should take a "hands-off"
approach wherever possible, because tenure is a decentralized decision-making structure
based on relevant criteria, and an academic department has superior knowledge to that of
courts concerning the academic field and the individual candidate's work. Thus, to prove
tenure discrimination, the evidence must show that disagreements about the scholarly
merits of the candidate's academic work or teaching abilities, or about the academic
needs of the department or university, are influenced by forbidden considerations such as

sex or race. Otherwise, schools should be free to establish departmental priorities, set
their own required levels of academic potential and achievement, and act on the
good-faith judgment of departmental faculties or reviewing authorities. 97
Similarly, the Seventh Circuit finds that while a faculty vote should not be permitted to
camouflage discrimination, the esteem of one's colleagues is essential to securing tenure.
Thus, evidence of past discrimination 98 by both the employer and the relevant
department did not demonstrate discrimination in light of the faculty's equivocal
assessment of the candidate's qualifications for tenure. 99
The Eighth Circuit agrees with the "hands off" approach to evaluating tenure decisions,
although a school's departure from regular procedures can raise a question as to the good
faith of the tenure process. However, an effort to obtain additional student evaluations in
response to a student complaint about a candidate was not a departure on which a
potential discriminatory motivation under either Title VII or the Rehabilitation Act could
be inferred. 1 The Sixth Circuit also finds that a mere disagreement about the scholarly
merits of a tenure candidate is insufficient, by itself, to establish a prima facie case of
tenure discrimination. 2
Footnotes
Footnote 97. Zahorik v Cornell University (1984, CA2) 729 F2d 85, 34 BNA FEP Cas
165, 33 CCH EPD 34220.
Footnote 98. As to the effect of past discrimination, see 917.
Footnote 99. Namenwirth v Board of Regents (1985, CA7) 769 F2d 1235, 38 BNA FEP
Footnote 1. Brousard-Norcross v Augustana College Assn. (1991, CA8) 935 F2d 974, 56
Footnote 2. Evans v Cleveland State University Bd. of Trustees (1991, CA6) 1991 US
App LEXIS 12218.
d. Remedies in Promotion Cases [922, 923]
922 Generally
View Entire Section
Although ordering promotion of a plaintiff is a typical remedy in promotion
discrimination cases, an employer cannot be required to promote a plaintiff if it proves
that it would not have promoted the person in the absence of a discriminatory motive. 3
Footnotes
Footnote 3. 42 USCS 2000e-5(g)(2)(B).
923 Tenure decisions

View Entire Section
Go to Supplement
Where a discriminatory denial of tenure has been established, awarding tenure to the
victim may be appropriate under certain circumstances. While courts must be wary of
intruding into a university's tenure decisions, 4 once discrimination in that process is
demonstrated, the institution's First Amendment right to decide who may teach is
subordinate to remedying a Title VII violation. Thus, tenure is an appropriate remedy
when the victim of the violation is qualified, collegiality among colleagues is not a factor,
and the employer can offer no less restrictive alternative remedy that would make the
plaintiff whole. 5 A remedy of promotion to full professor was also awarded to a victim
of tenure discrimination, because of the difficulty in structuring a fair promotion review
seven years after the unlawful tenure decision was made. The "intrusiveness" of the
promotion remedy was far less than that of ordering a grant of tenure. 6 However,
academic tenure should be awarded only in exceptional cases. Tenure should be reserved
as a remedy for an individual who, if simply reinstated to a former faculty position,
would not receive fair consideration in a future tenure application. 7 Thus, since a court
might be doing more than making a faculty member "whole" by awarding tenure,
especially if it were satisfied that unbiased evaluations were possible, ordering the
college to reevaluate a faculty member's qualifications for tenure may be a better remedy
than having a federal district court award tenure. 8
923 ----Tenure decisions [SUPPLEMENT]
Practice Aids: Women of color in legal academia: A biographic and bibliographic
guide, 16 Harv Women's LJ 1 (1993).
Footnotes
Footnote 4. 921.
Footnote 5. Brown v Trustees of Boston University (1989, CA1) 891 F2d 337, 51 BNA
Footnote 6. Jew v University of Iowa (1990, SD Iowa) 749 F Supp 946, 57 BNA FEP
Cas 647, 55 CCH EPD 40443.
Footnote 7. Gutzwiller v Fenik (1988, CA6) 860 F2d 1317, 48 BNA FEP Cas 395, 48
CCH EPD 38398.
Footnote 8. Pyo v Stockton State College (1985, DC NJ) 603 F Supp 1278, 37 BNA FEP
Cas 493.
3. Transfers and Job Assignments [924-934]
924 Generally
View Entire Section
Go to Supplement
Title VII of the 1964 Civil Rights Act forbids discrimination based on race, color,
religion, sex, and national origin in all terms, conditions, and privileges of employment. 9
This broad prohibition encompasses transfer and assignment situations 10 because it
includes access to positions that do not entail an increase in pay. 11
1991, 13 is intended to cover transfers. 14 The Civil Rights Act of 1991's amendment
of 1981 supersedes 15 the Supreme Court's ruling that the application of 1981 was
limited in the employment context to hiring and promotion decisions that involved the
formation of new contracts, and did not reach post-formation conduct. 16 Under
Patterson, allegedly discriminatory denials of transfers or reassignments were held to be
post-formation conduct beyond the scope of 1981, 17 while discrimination in an initial
assignment could only be actionable if it amounted to a refusal to hire the applicant for a
particular position. 18
The ADEA implicitly prohibits transfers and assignment discrimination based on age by
making it an unlawful employment practice for an employer to limit, segregate, or
classify employees or applicants in any way that would deprive or tend to deprive an
individual of employment opportunities or adversely effect his status as an employee
because of his age. 19
Discrimination in job assignments is prohibited by the ADA. 20 Therefore, employers
may not assign employees with disabilities only to a particular office or installation, even
if the assignment is intended to be an accommodation to the employee's disability, or
make assignments based on a generalized fear about either the employees' safety or
projected absenteeism rate. 21
Caution: Job discrimination laws that implicitly or explicitly regulate all terms,
conditions, or privileges of employment may be reasonably construed also to regulate

transfer and assignment policies and practices, subject to the same exceptions
applicable to all terms and conditions of employment.
State aspects: Some state job discrimination laws either provide special
requirements for the application of a transfer or assignment discrimination prohibition,
or grant exceptions only with respect to such prohibitions. Other laws which do not
regulate all terms, conditions, and privileges of employment may also conatin transfer
and assignment discrimination prohibitions. 22
Practice Aids: Sex discrimination in job assignment or transfer as violation of Title
VII of Civil Rights Act of 1964 (42 USCS secs. 2000e et seq.) 123 ALR Fed 1.
Footnotes
Footnote 10. For purposes of this discussion, assignments and transfers involve
placements or movements of employees within the work force, either voluntary or
involuntary, that do not result in a loss of job status or pay. By comparison, promotions
involve upgrades in job status, usually with an accompanying pay increase. While a
transfer involves movement from one job to another, an assignment could also include a
new employee's initial placement in the work force. Involuntary movements that result in
lower pay or status because of disciplinary or job performance problems are analyzed as
demotions under the topic of discharge and discipline, which is discussed at 1055 et
seq.
Transfers needed to avoid religious conflicts with availability for work,and transfers of
pregnant women required by an employer's fetal protection policies for health and safety
reasons, are discussed at 430 et seq.
An employer's obligation to transfer or reassign an employee as an alternative to
termination or layoff in a reduction-in-force situation is discussed in the context of layoff
and recall discrimination at 935 et seq.
Footnote 11. Powers v Alabama Dept. of Education (1988, CA 11) 854 F2d 1285, 48
Practice References Discriminatory job assignment practices. 21 Am Jur Trials 1,
Employment Discrimination Action Under federal Civil Rights Acts 31, 32.
Footnote 13. P.L. 102-166 101(2).

Footnote 17. Clarke v Loma Linda Foods, Inc. (1991, CA9) 1991 US App LEXIS 11608,
cert den (1992, US) 116 L Ed 2d 781.
Footnote 18. Jackson v McLeod (1990, SD Ala) 748 F Supp 831, 54 BNA FEP Cas 263,
56 CCH EPD 40695.
Forms: Complaint, petition, or declarationDiscrimination in employment based on
ageTransfer from one department to another upon reaching certain ageFor
declaratory and injunctive relief. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form
132.
Footnote 21. 29 CFR Part 1630, Appendix.
Footnote 22. These laws are discussed in the Employment Coordinator at EP-22,120 et
seq.
925 Federal laws banning discrimination in transfers and job assignments by

government contractors
View Entire Section
Executive Order 11246 prohibits discrimination in transfers by government contractors
and subcontractors because of race, color, religion, sex, or national origin. 23
Furthermore, in making assignments, contractors cannot discriminatorily restrict one sex
to certain job classifications, but must act to make all jobs available to all qualified
employees regardless of sex. 24
Illustration: An electrical manufacturing company has a production division with

three functional units, one (assembly) all female, the other two (wiring and circuit
boards) all male. The highest wage attainable for assembly work is considerably less
than that in the circuit board and wiring units. The employer must act to provide
qualified female employees opportunity for placement in job openings in the higher
paid units. 25 However, when making specific assignments, contractors may make
nonsexual distinctions based on the respective capabilities of the individuals involved.
26
The Vietnam Era Veterans' Readjustment Assistance Act prohibits government
contractors and subcontractors from denying an employee a transfer because he is a

disabled or Vietnam-era veteran. 27
Footnotes
Footnote 23. 42 USCS 2000e note, 202(1).
Footnote 24. 41 CFR 60-20.5(b).
Footnote 25. 41 CFR 60-20.5(b).
Footnote 26. 41 CFR 60-20.3(i).
Footnote 27. 41 CFR 60-250.4(a).
926 Federal laws banning discrimination in transfers and job assignments by

federal aid recipients
View Entire Section
Title VI of the Civil Rights Act of 1964 prohibits recipients of federal financial assistance
from discriminating on the basis of race, color or national origin in transfers. 28
Title IX of the Education Amendments of 1972 prohibits federal aid recipients from
discriminating on the basis of sex in transfers, 29 and in job assignments, classifications
and structure. 30
The Rehabilitation Act of 1973 prohibits federal aid recipients from discriminating on the
basis of handicap in transfers, 31 and in job assignments, classifications and structure.
32
Footnotes
Footnote 28. 28 CFR 42.104(c)(1).
Footnote 29. 34 CFR 106.51(b)(2).
Footnote 30. 34 CFR 106.51(b)(4).
Footnote 31. 45 CFR 84.11(b)(2).
Footnote 32. 45 CFR 84.11(b)(4).
b. Establishing Discrimination in Transfers or Job Assignments [927-932]
927 Proving disparate treatment discrimination

View Entire Section
Go to Supplement
To prove a prima facie case of disparate treatment discrimination under Title VII in either
transfers 33 or assignments, 34 the plaintiff must show that he was member of a group
protected by the statute, that he qualified 35 and applied 36 for the position at issue,
and that he was rejected under circumstances giving rise to inference of unlawful
discrimination. Establishment of a prima facie case may also require a demonstration by
the plaintiff that the alleged discrimination "harmed" him. 37
927 ----Proving disparate treatment discrimination [SUPPLEMENT]
Case authorities:
In action by job applicant against postal service alleging discrimination under
Rehabilitation Act (29 USCS 501 et seq.) in that he was required to take second
physical exam after lengthy delay in application process, judgment is entered in favor of
defendant because plaintiff failed to prove that he was treated differently than persons
who were not disabled, and because evidence showed that defendant's actions were taken
for legitimate nondiscriminatory reasons which plaintiff could not prove were pretextual.
Owens v Runyon (1993, WD Mo) 865 F Supp 614, 8 ADD 497, 3 AD Cas 1405, affd
(1994, CA8 Mo) 37 F3d 1326, 7 ADD 109, 3 AD Cas 1408.
Footnotes
Footnote 33. Coe v Yellow Freight System, Inc. (1981, CA10) 646 F2d 444, 25 BNA
Statistical proof of discrimination in transfers and assignments is discussed at 932.
Footnote 34. Baltzer v City of Sun Prairie/Police Dept. (1989, WD Wis) 725 F Supp
1008, 52 CCH EPD 39672.
employmentAllegationAssignment to all-black job positions and refusal to promote
employee. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form 101.
Footnote 35. 930.
Footnote 36. 931.
928 Demonstrating harm from transfer or assignment decision

View Entire Section
In order to establish a prima facie case of transfer and assignment discrimination,
plaintiffs may be required to demonstrate that the alleged discrimination "harmed" them.
This demonstration may be necessary since transfers and assignments, unlike promotions
and demotions, do not involve a potential increase or loss of pay. 38
The harm suffered by a discriminatory transfer or assignment may be obvious, and can
include economic injury. The requisite harm has been demonstrated by a planitiff as a
result of an employer's:
assignment policies that reduced minorities' potential for on-the-job development, and,
correspondingly, promotional opportunities dependent on such development; 39
assignment policies that, in tandem with a collective bargaining requirement governing
the order of layoffs, resulted in the disproportionate layoff of protected-group
individuals; 40
overt policy of limiting certain job assignments to members of one sex, thereby barring
access to particular assignments on the basis of sex; 41
requiring blacks to work with whites, but not vice versa, and refusing to permit blacks
to treat white patients but permitting whites to treat black patients. 42
Although sufficient by itself to demonstrate harm in a transfer or assignment case, proof
of direct economic harm is not required in a transfer 43 or assignment 44
discrimination claim under Title VII, since discrimination in the "terms, conditions, and
privileges of employment" can encompass nonmonetary harms. 45
Caution: Proof of economic injury may be required when a plaintiff is attempting to

show not only that the transfer or assignment decision was harmful, but also that it
constituted intolerable working conditions that supported a claim of constructive
discharge. 46
Footnotes
Footnote 38. 924.
Footnote 39. Perez v FBI (1988, WD Tex) 707 F Supp 891, 47 BNA FEP Cas 1782.
Footnote 40. Ostapowicz v Johnson Bronze Co. (1976, CA3) 541 F2d 394, 13 BNA FEP
Cas 517, 14 BNA FEP Cas 261, 12 CCH EPD 11166, cert den 429 US 1041, 50 L Ed

Footnote 41. Multnomah County Corrections Officers Asso. v Multnomah County (1988,
DC Or) 48 BNA FEP Cas 378.
Footnote 44. Swint v Pullman-Standard (1976, CA5) 539 F2d 77, 13 BNA FEP Cas 604,
12 CCH EPD 11177.
Footnote 45. 899.
929 Requirement that harm suffered be objective rather than subjective

View Entire Section
When a plaintiff suffers an objective detriment in his "terms, conditions, or privileges of
employment" he can easily demonstrate sufficient harm to establish a prima facie case of
a discriminatory transfer or assignment. For example, a Title VII violation was proven
where a woman was assigned an unfair work load because of her sex 47 and where
another woman was discriminatorily transferred to a job involving an inferior title and
duties. 48 Similarly, a federal agency violated the ADEA by confining a staff attorney,
who was hired in part because of his expertise in the agency's substantive area of
concern, to the appeals section while giving a wide variety of assignments to his mostly
younger colleagues. The plaintiff knew little about appeals, and they were the least
professionally desirable area to work in. 49
However, mere subjective harm has been found insufficient to establish transfer or
assignment discrimination under the ADEA, since the act outlaws only changes in duties
or working conditions that cause a materially significant disadvantage to an older
employee. Therefore, an older employee who is involuntarily reassigned cannot sue
simply because he dislikes his changed job responsibilities. Rather, to establish that such
a reassignment violated the ADEA, the plaintiff must prove it resulted in a "materially
adverse" change in the terms and conditions of her employment. The plaintiff's
reassignment to a dual principalship that resulted in more pay under a longer term
contract was, therefore, not a materially adverse change in the terms and conditions of
her employment. 50
The Sixth Circuit also agrees that an employee is not harmed under the ADEA if she
refuses a transfer to a substantially identical position. Therefore, an employee terminated
for refusing a transfer to a position of identical pay, benefits, grade level, and duties,
because it involved a commute of 20 minutes by auto and for other personal reasons, was
not objectively harmed by the employer's actions. 51
Furthermore, the possibility that the public perceived a principal's reassignment as a
"nudge towards retirement" did not amount to a materially adverse change in the terms
and conditions of her employment for purposes of establishing an ADEA violation,
because public perceptions were not a term or condition of employment. 52
Footnotes
Footnote 47. Held v Gulf Oil Corp. (1982, CA6) 684 F2d 427, 29 BNA FEP Cas 837, 29
CCH EPD 32968.
Footnote 49. Winslow v Federal Energy Regulatory Com. (1987, DC Dist Col) 43 BNA
FEP Cas 1311, 43 CCH EPD 37223.
Footnote 50. Spring v Sheboygan Area School Dist. (1989, CA7) 865 F2d 883, 48 BNA
FEP Cas 1606, 48 CCH EPD 38617.
Footnote 51. Darnell v Campbell County Fiscal Court (1991, CA6) 1991 US App LEXIS
1755 (unpublished opinion).
Footnote 52. Spring v Sheboygan Area School Dist. (1989, CA7) 865 F2d 883, 48 BNA
FEP Cas 1606, 48 CCH EPD 38617.
930 Proving qualifications for the position

View Entire Section
When an employer's assignment of an employee involves an initial placement decision
after hiring, the proof-of-qualifications aspect of a prima facie case of discrimination is
handled in the same fashion as if the issue involved hiring for a particular position. 53
However, an assignment or transfer of an employee who already has a history of work
experience with the employer may involve a qualifications analysis that includes past
performance in the position from which the employee desires to be reassigned or
transferred. Unsatisfactory performance by the employee in his current position can be
used to justify an employer's refusal to make the requested assignment or transfer, or to
justify a lateral involuntary transfer or assignment. For example, there was no
discrimination in a black supervisor's assignment to the employer's business office that
was necessitated by his unsatisfactory work performance and inability to work with
others. 54 Similarly, an employee's transfer from a financial analyst position to an
operations position was not discriminatory but was necessitated by his inadequate
performance resulting from a lack of experience, education, and training. 55
Footnotes
Footnote 53. As to hiring cases, generally, see 557 et seq.
Footnote 54. Grant v C & P Tel. Co. (1984, DC DC) 35 BNA FEP Cas 1397.
Footnote 55. Pitter v American Express Co. (SD NY) No. 82 Civ. 7451-CSH, 11/27/84.
931 Requirement of applying for position

View Entire Section
Where an employer has a policy or procedure requiring an application for transfer and
assignment, the plaintiff cannot prove discrimination unless he demonstrates that he
applied. 56 However, when assignments are not posted and employees are informed of
available assignments only by word of mouth, claimants are not required to show that
they applied, but only that they would have applied had they been informed of available
assignments. This may consist of testimony that they had an interest in applying for a
particular position, but only vague statements of interest will not suffice. 57 Similarly,
where an employer failed to post openings or keep formal records regarding opportunities
and requests for transfer, the plaintiffs were obligated only to alert the relevant personnel
of their interest in a particular assignment, or to specifically request a tranfer reasonably
in advance of a position becoming available. 58
Furthermore, where the evidence overwhelmingly demonstrates that an employer has a
discriminatory assignment policy, a Title VII violation can be established without
presenting evidence that any protected individual has ever sought or been denied
particular assignments, since such attempts would have amounted to futile gestures. 59
Footnotes
Footnote 56. Harris-Dukes v Abbott Laboratories (1988, CA5) 839 F2d 1106, 46 BNA
Footnote 57. Baltzer v City of Sun Prairie/Police Dept. (1989, WD Wis) 725 F Supp
1008, 52 CCH EPD 39672.
Footnote 58. Rossini v Ogilvy & Mather, Inc. (1984, SD NY) 597 F Supp 1120, 41 BNA
FEP Cas 861, reversed and remanded on other grounds (CA2) 798 F2d 590.
Footnote 59. Harless v Duck (1980, CA6) 619 F2d 611, 22 BNA FEP Cas 1073, 22 CCH
EPD 30871, cert den 449 US 872, 66 LEd 2d 92, 101 S Ct 212, 23 BNA FEP Cas
1668, 24 CCH EPD 31256.
932 Statistical proof of transfer or assignment discrimination claims

View Entire Section
One method of demonstrating that an employer acted with a discriminatory intent in
making a transfer or assignment decision is through the use of statistical evidence.
Statistical inferences of an employer's discrimination in transfers or assignment decisions
has been demonstrated not only by showing that no blacks 60 or women 61 occupied
certain positions, but also by comparing:
the percentage of blacks and whites 62 or men and women 63 placed in specified
"undesirable" positions;
the percentage of blacks placed in "undesirable" jobs as opposed to all other hourly
jobs; 64
the number of blacks placed in bargaining unit and nonbargaining unit jobs. 65
To prove a statistical claim of discrimination in transfers and assignments, the statistics
cannot assume facts contrary to the employer's practices. For example, evidence of
assignment decisions made after hiring cannot be attributed to the employer if the
employer's practice is to hire individuals only for the particular jobs for which they
applied. 66
Likewise, the statistics will not constitute persuasive evidence of discrimination if they
omit crucial variables, such as qualifications or interest in applying for particular
transfers or assignments. Therefore, a demonstration that female employees
predominated in certain departments of the employer's work force did not raise an
inference of sex discrimination in assignments when the positions in other departments
required different skills and the statistics failed to account for the female workers'
abilities to hold those positions. 67 However, a statistical case of discrimination will not
necessarily fail merely because it fails to account for all measurable variables involved in
transfer and assignment decisions. Thus, an employer's contention that a statistical
analysis of assignment discrimination failed to account for potentially different career
interests of men and women did not address the inference of sex bias shown by the data.
To refute a statistical claim, the employer must demonstrate the significance of omitted
variables to the particular job assignments at issue. 68
Statistics can also be used under the adverse impact method of proving transfer 69 and
assignment 70 discrimination.
Footnotes
Footnote 60. Bing v Roadway Express, Inc. (1971, CA5) 444 F2d 687, 3 BNA FEP Cas
616, 3 CCH EPD 8265.

Footnote 61. Meyer v Missouri State Highway Com. (1977, CA8) 567 F2d 804, 16 BNA
Footnote 62. Dickerson v U.S. Steel Corp. (1977, ED Pa) 439 F Supp 55, 15 BNA FEP
Cas 752, 15 CCH EPD 7823.
Footnote 63. Marsh v Eaton Corp. (1981, CA6) 639 F2d 328, 25 BNA FEP Cas 64, 25
CCH EPD 31536.
Footnote 64. James v Stockton Valves & Fittings Co. (1977, CA5) 559 F2d 310, 15 BNA
Footnote 65. Buckner v Goodyear Tire & Rubber Co. (1972, ND Ala) 339 F Supp 1108,
1165, 5 CCH EPD 8625.
Footnote 66. Coser v Moore (1984, CA2) 739 F2d 746, 34 CCH EPD 34511.
Footnote 67. Rossini v Ogilvy & Mather, Inc. (1984, SD NY) 597 F Supp 1120, 41 BNA
FEP Cas 861, revd on other grounds (CA2) 798 F2d 590, 42 BNA FEP Cas 1615, 41
CCH EPD 36658.
Footnote 68. EEOC v General Tel. Co. of Northwest, Inc. (1989, CA9) 885 F2d 575, 50
BNA FEP Cas 1316, 51 CCH EPD 39337, cert den (1990, US) 112 L Ed 2d 332, 54
Footnote 69. Bing v Roadway Express, Inc. (1971, CA5) 444 F2d 687, 3 BNA FEP Cas
616, 3 CCH EPD 8265.
Footnote 70. Perez v FBI (1988, WD Tex) 707 F Supp 891, 47 BNA FEP Cas 1782.
c. Defending Against a Claim of Discrimination [933, 934]
933 Efficiency considerations as a defense

View Entire Section
Employers can defend against claims of transfer or assignment discrimination by
presenting evidence that such decisions were based on business efficiency. For example,
a sales representative's assignment to a particular group of prospects was based on the
legitimate, nondiscriminatory reason that she had a background geared to those prospects
and that her new assignment was the result of a reorganization designed to distribute
leads equitably among all sales representatives. 71 However, customer or coworker

preference is never an efficiency justification for discriminatory transfers or assignments.
For example, an employer violated Title VII by assigning a black salesman to serve black
customers, 72 and by assigning a black employee to a minority recruitment program, 73
on the basis of the statutorily impermissible stereotype that blacks work better with other
blacks.
Co-worker preferences were lawfully considered, however, because of an employer's
need for discipline and cooperation among employees who worked as a team. Since a
team composed of employees who could be cordial to each other was crucial to
accomplishing the job, an employer's "right of refusal" policy, under which a woman was
denied assignments because of other team members' preference not to work with her, did
not result in an unlawful disparate impact on women under Title VII. 74
Observation: Customer preference has also been rejected as a bona fide occupational
qualification defense to transfer and assignment discrimination claims. 75
Footnotes
Footnote 71. Jones v ITT Educational Services, Inc. (1984, ED Mo) 587 F Supp 1533.
6118.
Footnote 73. Knight v Nassau County Civil Service Com. (1981, CA2) 649 F2d 157, 25
Footnote 74. Schneider v NBC News Bureaus, Inc. (1991, SD Fla) 56 BNA FEP Cas
1602, 57 CCH EPD 41102.
Footnote 75. 934.
934 Using the bona fide occupational qualification exception in Title VII
View Entire Section
Employers have sometimes attempted to justify a transfer or assignment decision based
on sex or religion under a Title VII challenge by invoking the bona fide occupational
qualification (BFOQ) exception of the statute. 76
Safety-related BFOQs have been invoked to argue both that the safety interests of the
public, as well as that of the employees affected, warranted the use of a discriminatory
standard. A BFOQ premised on a threat to public safety will be upheld only if its
contribution to safety is more than minimal. While an employer must be afforded
substantial discretion in selecting specific standards, it must establish a reasonable

though not certain basis for its assessment of risk. Thus, an airline's policy of removing
pregnant flight attendants from flight duty and permitting them to transfer to available
ground positions was justified by the concern for the safety of airline passengers. 77
However, a safety-related BFOQ that is based on a "patronizing paternalistic concern" for
employee welfare is invalid. Thus, a medical college's concern for the safety of Jewish
participants in a program of surgical rotations in Saudi Arabia was an invalid BFOQ
defense to the claim of being denied assignments in the program, because the agreement
establishing the program did not bar Jewish participation. 78
The privacy rights of third parties also may be successfully asserted as the basis for a
sex-based BFOQ in assignment discrimination cases if the employer has a factual basis
for believing that the BFOQ is necessary in order to protect those rights, the rights are
entitled to legal protection, and no reasonable alternative exists to protect them other than
by a gender-based assignment policy. 79
Customer preference has been rejected as justification for a sex-based BFOQ in
assignment discrimination cases. Thus, while a school district's Hasidic clientele
strongly prefer male drivers for bus routes, that fact did not make being a man a BFOQ
so as to warrant assigning only male bus drivers to those routes, out of seniority order. 80
Observation: Customer and coworker preference has also been rejected as an

efficiency defense in transfer and assignment discrimination claims. 81
Footnotes
Footnote 76. As to bona fide occupational qualifications, generally, see 269 et seq.
Footnote 77. Levin v Delta Air Lines, Inc. (1984, CA5) 730 F2d 994, 34 BNA FEP Cas
1192, 34 CCH EPD 34341.
BNA FEP Cas 229, 34 CCH EPD 334303, affd in part and revd in part on other
grounds (CA5) 805 F2d 528, 42 BNA FEP Cas 806, 41 CCH EPD 36682.
Footnote 79. Jennings v New York State Office of Mental Health (1992, SD NY) 786 F
Supp 376, affd (1992, CA2 NY) 977 F2d 731, 60 CCH EPD 41836.
Footnote 80. Bollenbach v Board of Education (1987, SD NY) 659 F Supp 1450, 43
Footnote 81. 933.
4. Layoffs and Recalls [935-949]
935 Generally
View Entire Section
Go to Supplement
Employers' policies and practices relating to layoffs and recalls are regulated by most
federal and state job discrimination and fair employment practice law as an aspect of
"terms, conditions, or privileges of employment." 82 The federal laws prohibiting such
discrimination include Title VII (race, color, religious, sex, and national origin
discrimination), 83 the ADEA (age discrimination), 84 and Executive Order 11246
(race, color, religious, sex, and national origin discrimination). 85
Disability discrimination in layoff and recall are prohibited by the Americans With
Disabilities Act. 86
State aspects: Several state job discrimination laws specifically regulate layoffs and
recalls either in lieu of, or in addition to regulating, all terms, conditions, or privileges
of employment. 87
Observation: Layoff situations are analogous to those involving discharges and,

thus, cases of layoff discrimination have some of the same concerns and attributes as
do those involving discharge. 88 In addition depending on whether recalls are
conducted strictly by seniority 89 or are individually decided based on other selection
devices, 90 such as merit systems and performance appraisals, discrimination cases
involving recalls may have many attributes in common with those involving hiring. 91
Some layoffs occur regularly in cyclical industries so they can be more or less
predicted by seasonal adjustments and often involve expectations of recall with related
seniority issues. Other layoffs or reductions in the work force involve economic
downturns, but are less predictable and more permanent and may involve issues of
severance pay 92 and early retirement policies. 93
Observation: Before granting benefits to employees who are going to be laid off,
employers have, on occasion, demanded signed releases from liability from the job
discrimination laws. 94
Case authorities:
School board's layoff procedure resulting in dismissal of 17 first-year white teachers by
giving absolute preference to minority teachers in making reductions in force violated
equal protection clause where racial classification was not shown to be justified by
compelling governmental interest and by means narrowly tailored to achieve goal since
sanctioning exclusive layoffs of one race, in effort to rectify past injustices, is
impermissible means to a legitimate end. Crumpton v Bridgeport Educ. Ass'n (1993, CA2
Conn) 993 F2d 1023, 61 BNA FEP Cas 1295, 61 CCH EPD 42255.
Footnotes
Footnote 85. 42 USCS 2000e Note 202(1); 41 CFR 60-50.2(a).
Footnote 87. For a discussion of these laws which cover layoffs and recalls simply as part
of the coverage of all terms, conditions, or privileges of employment, see Employment
Footnote 88. As to discriminatory discharge, generally, see 1055 et seq.
Footnote 89. 706.
Footnote 94. The enforceability of such agreements is discussed at 2642 et seq.
936 Treatment of layoffs and recalls under the early civil rights acts
View Entire Section

include layoffs and recalls.
ruling that its application was limited in the employment context to hiring and promotion
decisions that involved the formation of new contracts, and did not reach post-formation
conduct. 99
Footnotes
Footnote 96. P.L. 102-166 101(2).
Footnote 99. Patterson v McLean Credit Union (1989, US) 491 US 164, 105 L Ed 2d
132, 109 S Ct 2363, 57 USLW 4705, 49 BNA FEP Cas 1814, 50 CCH EPD 39066.
937 Special remedial issues arising in layoff and recall cases

View Entire Section
The ADEA places no affirmative duty on an employer to accord special treatment to
members of the protected age group during a reduction in force, and it confers no
seniority rights on employees other than those in a collective bargaining contract. 1
Since layoffs and recalls are often subject to collective bargaining agreements, those who
recommend and order remedies for discrimination in layoffs and recalls must often
consider the effect on such agreements. The employer must be extremely cautious about
agreeing to any unilateral change in a collective bargaining agreement. The Supreme
Court has held that the public policy favoring the conciliation of disputes under Title VII
does not prevent enforcement of an arbitration award that is based on a collective
bargaining agreement, even if the award is contrary to the conciliation agreement, at least
where the union was not party to the conciliation. Thus an employer that implemented
layoffs in conformity with a conciliation agreement was required to grant backpay
pursuant to an arbitrator's award to employees laid off in violation of the collective
bargaining agreement. 2
In Title VII cases involving layoffs, courts will usually award reinstatement and backpay
to the victim of discrimination. 3
The Supreme Court put an end to carry-over seniority as a remedy in all but individual
disparate treatment cases or disparate treatment pattern-and-practice cases where
individual claimants demonstrate that they have suffered actual harm. Title VII
precludes a district court from displacing a nonminority employee with seniority under a
contractually established bona fide seniority system, absent either a finding that the
seniority system was adopted with discriminatory intent or a determination that a
carry-over remedy is necessary to make whole a proven victim of discrimination. 4
Footnotes
Footnote 1. Williams v General Motors Corp. (1981, CA5) 656 F2d 120; Tice v Lampert
Yards, Inc. (1985, CA7) 761 F2d 1210, 37 BNA FEP Cas 1318, 36 CCH EPD 35196.
Footnote 2. W.R. Grace & Co. v Local Union 759, International Union of United Rubber,
etc. (1983) 461 US 757, 76 L Ed 2d 298, 103 S Ct 2177, 31 BNA FEP Cas 1409, 113
BNA LRRM 2641, 31 CCH EPD 33616, 97 CCH LC 10131.
Footnote 3. Mead v U.S. Fidelity & Guaranty Co. (1977, DC Minn) 442 F Supp 114, 18
938 Alternatives to laying workers off

View Entire Section
Nothing in the Supreme Court's Stotts ruling 5 prevents the sharing of a work week to
prevent layoffs. Thus, rather than ordering minorities to be retained during a layoff in the
same proportion as that which existed prior to the layoff, a district court suggested that
labor and management negotiate to protect the rights of women and minorities. The
employers and employees were also encouraged to rotate promotions, provide by
agreement for minority and female hiring, training, and recruitment, or find other creative
means to remedy past discrimination. 6
The EEOC has issued a policy statement calling on employers to take steps to ease the
effects of layoffs on groups protected by Title VII. As an alternative to layoffs, the
EEOC recommends a system of "work-sharing" involving a reduced work week for all
employees. Some firms have also employed programs under which employees take one
week off without pay for every three weeks worked. 7
Work-sharing and other alternate remedies in layoff and recall cases must be carefully
crafted or an employer may find itself liable for its attempts to correct an already
problematical situation. For instance, a prima facie case of age discrimination existed
when an employer gave younger employees the opportunity to assume additional duties
in order to remain employed during a reduction in force, while it denied such an
opportunity to older workers. 8
Footnotes
Footnote 5. 947.
588 F Supp 732, 35 BNA FEP Cas 24, 34 CCH EPD 34501, affd without op (CA3) 770
F2d 1077.
Footnote 7. 45 Fed. Reg. 60830 (Sept. 12, 1980).
Footnote 8. Zerante v Ball Corp. (1988, ND Ill) 1988 US Dist LEXIS 6019.
b. Proving Discrimination in Layoff and Recall Situations [939-946]
939 Establishing a disparate treatment case of discrimination in layoffs

View Entire Section
Go to Supplement
The courts do not all agree on how a disparate treatment prima facie case of layoff
discrimination should be formulated. Many courts require a plaintiff in an ADEA case to
establish a prima facie case of age discrimination by showing that he: (1) satisfies the
standing requirements, by virtue of being within the statutorily protected age group and
being adversely affected by the employer's decision; (2) is qualified to assume another
position at the time of the layoff; and (3) has circumstantial or direct evidence of the
employer's intent to discriminate. 9
However, this prima facie case formulation has been criticized and rejected by the
Seventh Circuit in an reduction in force (RIF) situation. According to the latter court, a
prima facie case of layoff discrimination is established by a claimant showing that he was
within the protected group, he was performing according to his employer's legitimate
expectations, he was terminated, and others who were not in the protected class were
treated more favorably. It is not necessary for an employee to produce further
circumstantial or direct evidence of the employer's discriminatory intent in order to make
out a prima facie case. 10
The Sixth Circuit has held that although replacement by a person outside the protected
class is a requirement for establishing a prima facie case of layoff discrimination under
the ADEA, it is not a requirement for establishing a prima facie case of layoff
939 ----Establishing a disparate treatment case of discrimination in layoffs
[SUPPLEMENT]
Case authorities:
Defendant employer need only articulate non-discriminatory reason for its reduction in
force, as ADEA plaintiff bears burden of demonstrating that articulated reason is pretext.
Jones v Unisys Corp. (1993, DC Utah) 62 BNA FEP Cas 1173.
Footnotes
Footnote 9. Second CircuitStanojev v Ebasco Services, Inc. (1981, CA2) 643 F2d 914,
2 EBC 1990, 25 BNA FEP Cas 355, 25 CCH EPD 31618).
Third CircuitMassarsky v General Motors Corp. (1983, CA3) 706 F2d 111, 31 BNA
Fourth CircuitGilyard v South Carolina Dept. of Youth Services (1985, DC SC) 667 F
Fifth CircuitThornbrough v Columbus & G. R. Co. (1985, CA5) 760 F2d 633, 37 BNA
FEP Cas 1414, 37 CCH EPD 35274.
Tenth CircuitBranson v Price River Coal Co. (1988, CA10) 853 F2d 768, 46 BNA FEP
Cas 1003, 46 CCH EPD 37958.
Eleventh CircuitGross v Culbro Corp. (1987, ND Fla) 45 BNA FEP Cas 875.
Footnote 10. Oxman v WLS-TV (1988, CA7) 846 F2d 448, 46 BNA FEP Cas 1392, 46
CCH EPD 37970.
Footnote 11. Jackson v Richards Medical Co. (1992, CA6) 961 F2d 575, 58 BNA FEP
Cas 869, 58 CCH EPD 41393.
940 Using statistical evidence to show discrimination in layoffs

View Entire Section
Besides demonstrating that they were intentionally discriminated against by being treated
differently from similarly situated individuals, employees have used statistical evidence
to show that they were selected to be laid off and not retained discriminatorily.
Employers, too, have had to rely on statistical evidence to demonstrate an economic
rationale for layoffs and the selections they have made in executing them. For instance,
claimants have established a case of discriminatory layoff using statistics when the
average age of retained employees decreased after the reorganization. 12 Further, a
termination list used by the person who decided to terminate a plaintiff provided the most
useful statistical evidence of potential layoff discrimination. A list which included only
two employees under age 40, but 25 employees over age 40, might show discrimination
if additional evidence were introduced concerning the age composition of the company
division in question. 13
At times, statistical evidence is unable to match or rebut other kinds of evidence of
discrimination. For example, an employer's statistical evidence showing that a RIF

resulted in the termination of comparatively few black employees did not sufficiently
offset the plaintiff's inference of disparate treatment, especially since, the employer
apparently did not compare the performance, employment records, and worth of the
employees in making its retention decisions. 14 In addition, a statistical case of age bias
was undercut by the employer's evidence that each plaintiff was less qualified than the
employees who were retained in comparable positions. 15 Employees also have failed to
establish a prima facie ADEA case of discriminatory layoff when the statistical evidence
showed that:
salaried employees under the age of 40 were terminated much more frequently than
those over the age of 40; 16
the average age of employees in the plaintiff's job category increased as a result of a
RIF; 17
the average age of retained employees was nearly identical to the average age of the
claimants; 18
the reduction in force had increased the average age of "FLSA exempt" employees. 19
Statistics may also be used to establish disparate impact in layoffs. If such an impact is
demonstrated, the employer can defend the policy having such an effect by explaining
why it serves a legitimate employment goal in a significant way. Plaintiffs may then
attempt to demonstrate that there are other equally effective alternatives available to the
employer that would not have an undesirable effect. For example, a hospital could layoff
practical nurses and retain registered nurses, despite the adverse racial impact of that
policy, since the registered nurses could perform more functions than the practical nurses
could. Further, the plaintiffs could not offer any equally effective alternative to the
hospital employer. 20 However, when an employer's reduction in force had been
accomplished primarily by subjective decisions of department managers and had an
adverse impact on older workers, the plaintiffs successfully showed that the employer
could have accomplished its legitimate goals with less impact on persons over 40 by the
testimony of the employer's own expert, who stated that the employer could have
instituted a hiring freeze, used length of service as a factor for retention, and assigned
employees designated for layoff to temporary jobs until more work arose. 21
Footnotes
Footnote 12. Barnes v Insurance Co. of North America, Co. of Cigna Corp. (1986, DC
Minn) 631 F Supp 248, 52 CCH EPD 39688.
Footnote 13. Walther v Lone Star Gas Co. (1992, CA5) 952 F2d 119, 58 CCH EPD
41258.
Footnote 14. Jackson v Ebasco Services, Inc. (1986, SD NY) 634 F Supp 1565, 40 BNA
FEP Cas 1606.
Footnote 15. Barnes v GenCorp, Inc. (1990, CA6) 52 BNA FEP Cas 1707.
Footnote 16. McDaniel v Mead Corp. (1985, WD Va) 622 F Supp 351, 40 BNA FEP Cas
1846, 38 CCH EPD 35581, affd without op (CA4) 818 F2d 861, 51 BNA FEP Cas
1226.
Footnote 17. Murre v A.B. Dick Co. (1985, ND Ill) 625 F Supp 158, 50 BNA FEP Cas
889, 40 CCH EPD 36358.
Footnote 18. Adam v Ethyl Corp. (1990, CA6) 1990 US App LEXIS 6747.
Footnote 19. Ridenour v Lawson Co. (1986, CA6) 791 F2d 52, 40 BNA FEP Cas 1455,
40 CCH EPD 36297.
Footnote 20. Hinton v Board of Trustees of University of Illinois (1990, ND Ill) 53 BNA
FEP Cas 1475, 55 CCH EPD 40438.
Footnote 21. McCabe v Champion Int'l Corp. (1990, CA6) 1990 US App LEXIS 18542.
941 Establishing employer's intent to discriminate in layoffs

View Entire Section
Evidence of an employer's discriminatory intent may be inferred when it replaces an
employee with someone not in his protected group, or by any other direct, circumstantial,
or statistical evidence that a discriminatory factor was present in the employer's decision.
22 Intent to discriminate in layoffs has been established by:
the retention of a younger employee in a plaintiff's position, coupled with a supervisor's
negative remarks about older working women; 23
evidence of a pretextual motive for excluding some employees from a group susceptible
to layoff while including other employees, since the formation of the groups may be
suspect, even if the process of ranking within each group is not, and even if the employer
had a legitimate interest in ranking and grouping employees in order to retain its best
employees; 24
a document prepared by a non-party involved in a joint venture with the employer that
outlined the savings resulting from hiring new employees over retaining those with
greater seniority, possibly suggesting that very senior, and, therefore, older employees
should be dismissed. 25
However, the sole fact that an employee's duties are assumed by a younger person has
been found insufficient to establish a prima facie case in an ADEA case. 26
Furthermore, discrimination in a reduction-in-force situation cannot be established
simply by evidence that the employer retained younger employees but laid off older
employees. There also must be evidence that the employer did not treat age as a neutral
factor, since a large reduction in force is likely to spare some workers in the nonprotected
group with or without a discriminatory motive. 27 However, the inclusion of at least one
employee in a reduction in force who is not in the protected age group may negate an
inference that age was a factor in the terminations. 28
Ultimately, an employer's sole obligation under the ADEA, when making reductions in
force, is to refrain from using age as a basis for the elimination of positions. It does not
owe older employees any preferential consideration. 29
An employee is not required to demonstrate that he was replaced by a person not in his
protected group if other evidence permits a discriminatory inference. 30 It was also age
bias for an employer to consider the work-life expectancy of his employees in making the
decision about whom to lay off, since this consideration directly equated to a factor of
age. 31 However, no prima facie case was established simply because two younger
employees temporarily replaced the plaintiff, absent other evidence of the employer's
discriminatory motive. 32 Although the fact that a plaintiff's replacement is from within
the same protected group is not sufficient grounds for dismissing a Title VII claim, it is
enough to strongly discredit the plaintiff's claim when no other evidence of
discriminatory intent has been introduced. 33
No prima facie case of a discriminatory layoff will be found when neither replacement
nor other evidence of discrimination is present, such as when an ADEA plaintiff merely
claimed that he would have maximized his pension benefits if he had been retained for
one year and three months. Other evidence demonstrated that he was immediately
eligible for pension benefits, other retained employees became eligible for increased
benefits, and undisputed testimony demonstrated that age was a neutral factor in
separation decisions. 34
Footnotes
Footnote 22. La Grant v Gulf & Western Mfg. Co. (1984, CA6) 748 F2d 1087, 36 BNA
Footnote 23. Brouhard v Flying Tiger Lines, Inc. (1990, WD Mo) 1990 US Dist LEXIS
1715.
Footnote 24. Bell v AT & T (1991, CA10) 946 F2d 1507, 57 BNA FEP Cas 181, 57 CCH
EPD 41057.
Footnote 25. Denison v Swaco Geolograph Co. (1991, CA10) 941 F2d 1416, 57 CCH
EPD 40920.
Footnote 26. Holley v Sanyo Mfg., Inc. (1985, CA8) 771 F2d 1161, 38 BNA FEP Cas
1317, 37 CCH EPD 35468.
No prima facie case of age discrimination was shown by the fact that temporary younger
replacements were doing some of the plaintiff's work, when no other evidence of age
discrimination was submitted, and the statistics indicated that three of nine discharged
employees and five of 11 retained employees were over 40 years of age. Matson v
Cargill, Inc. (1985, DC Minn) 618 F Supp 278, 41 BNA FEP Cas 1385, 1 BNA IER Cas
706, 40 CCH EPD 36381.
Footnote 27. Barnhill v Aratex Services, Inc. (1987, CA4) 829 F2d 34.
Footnote 28. Griffith v Brouillard Communications, Div. of J. Walter Thompson Co.
(1987, SD NY) 45 BNA FEP Cas 31.
Footnote 29. Wolfe v Time, Inc. (1989, SD NY) 702 F Supp 1045, 48 BNA FEP Cas
1230, 48 CCH EPD 38648, holding that an employer that was reducing its work force
did not violate the ADEA by discharging a 51-year-old employee who held the position
of "creative manager," where the employer considered the position unique but
unnecessary, and where retaining the employee by either demoting him to a
nonmanagement position or transferring him might have required the discharge of
talented younger employees.
Age discrimination was not found when an employer laid off a few higher paid
employees for economic reasons, where the disparate impact challenge was based on a
theory that higher pay was linked to seniority, which was, in turn, linked to age. The
court held that seniority was a function of when a person began to work for the employer,
and was not necessarily related to the employee's age. It also found that pay was more
related to performance than age, which was supported by the fact that the other higher
paid worker who was laid off was paid more than the plaintiff, although he was
twenty-three years younger. Holt v Gamewell Corp. (1986, CA1) 797 F2d 36, 41 BNA
Footnote 30. Hawks v Ingersoll Johnson Steel Co. (1984, SD Ind) 38 BNA FEP Cas 93,
wherein plaintiffs established a prima facie case of age discrimination by introducing
documents relating to the employer's cost-cutting program that stressed a youthful image
for the company, evidence of the company's particular interest in applicants' ages, and
expressions by company managers of their desire for young and aggressive employees.
Footnote 31. Long v Orleans Materials & Equipment Co. (1989, ED La) 1989 US Dist
LEXIS 12101.
Footnote 32. Doby v Jones & Laughlin Steel, Inc. (1985, WD Pa) 624 F Supp 874, 41
Footnote 33. Jackson v Richards Medical Co. (1992, CA6) 961 F2d 575, 58 BNA FEP
Cas 869, 58 CCH EPD 41393.
Footnote 34. Roe v International Harvester Co. (1984, ND Ind) 604 F Supp 57.
942 Establishing discrimination in recall rights

View Entire Section
In order to establish a prima facie case of disparate treatment discrimination under Title
VII or the ADEA with respect to recall rights after a layoff, a plaintiff must show that he
is within the statutorily protected class, that at the time of the reduction in force he
applied for but did not receive another position, that a person in a different group (race,
sex, age, etc.) with similar qualifications received that position, and that the plaintiff was
qualified for the position. 35
Furthermore, the disparate impact standards and burdens of proof under Title VII 36
apply to challenges concerning employers' recall procedures. 37
A plaintiff failed to meet this prima facie burden where it was undisputed that he had
been offered recall positions, that no one had been recalled to the supervisory position he
had wanted, and that the majority of those recalled had been offered nonsupervisory
positions. 38 Likewise, a plaintiff failed to show that she was adversely affected by a
recall decision, where the employer had recalled a younger employee to a position for
which the plaintiff was equally or better qualified only after the plaintiff had declined an
offer of a temporary position which subsequently developed into additional work.
Although the plaintiff claimed that she was not fully informed of what the offer involved,
there was no evidence that the offer was calculated to induce her to decline the position.
39
Plaintiffs also have been unsuccessful in establishing cases of discriminatory recall when
the employers presented legitimate nondiscriminatory reasons for the failure or refusal to
recall them, such as:
the employer's reasonable belief that the plaintiff had stolen a fellow employee's watch;
40
the person rehired instead of the plaintiff had more experience as well as superior
attendance habits; 41
45% of those hired during the relevant time frame were as old or older than the
plaintiffs and three of the new hires were also plaintiffs. 42
Footnotes
Footnote 35. Sakellar v Lockheed Missiles & Space Co. (1985, CA9) 765 F2d 1453, 38
Footnote 36. As to Title VII burdens of proof generally, see 2699 et seq.
Footnote 37. Sakellar v Lockheed Missiles & Space Co. (1985, CA9) 765 F2d 1453, 38
Footnote 38. Owens v Freeman United Coal Mining (1986, SD Ill) 649 F Supp 1565, 42
BNA FEP Cas 1115.
Footnote 39. Branson v Price River Coal Co. (1986, DC Utah) 627 F Supp 1324, 45 BNA
46 CCH EPD 37958.
Footnote 40. State Div. of Human Rights v Ozone Industries, Inc. (1985, SD NY) 610 F
Footnote 41. Adams v Litton Industrial Products, Inc. (DC Kan) No. 84-2219, 6/9/86.
Footnote 42. Barnes v Southwest Forest Industries, Inc. (1986, ND Fla) 654 F Supp 193,
37057.
943 Requirement that claimant be qualified

View Entire Section
To establish discrimination in layoff and recall, the laid-off employee must show that he
or she is better qualified to hold positions than others who have been selected for recall or
retained in a layoff situation. 43 A laid-off employee's subjective belief that he or she is
better qualified is not sufficient, by itself, to meet the qualifications requirement. 44
A prima facie case of age discrimination in a reduction-in-force situation where the
plaintiff's position has been eliminated may be established by a showing that the plaintiff
possessed superior qualifications to those of a younger coworker retained in an
equivalent position. 45 When a reduction in force of an identified segment of the
workforce is based on performance criteria, plaintiffs may raise an inference of age
discrimination by showing that within that segment they were performing at a level
substantially equivalent to the lowest level of those retained in that group, and that the
selection process resulted in retaining persons in that group who were not within the
ADEA's age-range protection and who were performing at a lower level than the
plaintiffs. 46 This standard does not apply when the laid-off employees' performance is
not the stated reason at the time of their termination, or the one given to EEOC and the
state employment security office, and is only subsequently raised by the employer at the
trial of their ADEA claims. Under those circumstances, the less stringent method of
raising an inference of disparate treatment discrimination applies. 47
A subsequent failure to rehire a plaintiff did not violate the ADEA where the
requirements for the job had changed, and the plaintiff did not meet the new
qualifications. 48 Similarly, although a woman made out a prima facie case in which she
showed that she was selected for layoff instead of a less-senior male employee, despite
the fact that she adequately performed her work, her employer articulated a legitimate,
nondiscriminatory reason for the layoff by showing that the man who was retained was
more able to perform the available work. 49 Age also was not shown to be a
determining factor in a reduction in force where the claimants were not eligible for
transfer as an alternative to termination, since they were not professional employees. 50
Downgrading of older employees has also raised claims of discrimination. An employer's
refusal to consider an older employee for any of several vacant positions after his job was
eliminated, because he was "overqualified" for jobs below his salary and grade level,
could be a pretextual excuse for age discrimination. Although an employer may act out of
a genuine desire to avoid placing an employee in a job in which he might be frustrated,

exhibit low morale and perform poorly, policies against underemploying people must be
adopted in good faith and applied evenhandedly. 51 However, the Second Circuit
upheld an employer's decision not to retain an employee rather than place him in a
downgraded position when the evidence clearly established the employee's dissatisfaction
with the position's diminished responsibilities and reporting requirements. The court
distinguished Binder (above), which raised the question of whether a conclusory
assumption of "overqualification" for a job was only a mask to hide discriminatory
animus, because there was sufficient evidence for the employer to conclude that
"overqualifications" could negatively affect job performance. 52
Footnotes
Footnote 43. Barnes v Insurance Co. of North America, Co. of Cigna Corp. (1986, DC
Minn) 631 F Supp 248; Schutz v Western Pub. Co. (1985, ND Ill) 609 F Supp 888, 37
34711; Curto v Sears, Roebuck & Co. (1984, ND Ill) 38 BNA FEP Cas 547, 34 CCH
EPD 34579.
Footnote 44. La Grant v Gulf & Western Mfg. Co. (1984, CA6) 748 F2d 1087, 36 BNA
Footnote 45. Barnes v GenCorp, Inc. (1990, CA6) 52 BNA FEP Cas 1707.
Footnote 46. Duke v Uniroyal, Inc. (1991, CA4) 928 F2d 1413, 55 BNA FEP Cas 816, 56
288, 57 CCH EPD 41087.
Footnote 47. Gries v Zimmer, Inc. (1991, CA4) 1991 US App LEXIS 16729
Footnote 48. Murre v A.B. Dick Co. (1985, ND Ill) 625 F Supp 158, 50 BNA FEP Cas
889, 40 CCH EPD 36358.
Footnote 49. Nellis v Sunshine Dairy (1979, DC Or) 21 BNA FEP Cas 327, 24 CCH
EPD 31309.
Footnote 50. Adam v Ethyl Corp. (1990, CA6) 1990 US App LEXIS 6747.
Footnote 51. Binder v Long Island Lighting Co. (1991, CA2) 933 F2d 187, 55 BNA FEP
Cas 1525, 56 CCH EPD 40781.
944 Demonstrating availability of position

View Entire Section

To establish a case of layoff or recall discrimination, an employee must show that there is
a position available for which the claimant is qualified. For example, an employee who
was unable to offer evidence to counter the employer's explanation that the position to
which she was denied a transfer at the time of her layoff was not vacant, but was vacant
when younger employees were later transferred to it from another facility, could not
therefore establish a case of layoff or recall discrimination. 53 Similarly, in an ADEA
case, an employee was not qualified to assume another position where he would have
required some training to assume another position when his was eliminated due to a
reduction in force. 54
Footnotes
Footnote 53. Guinn v Electronic Data Systems, Inc. (1991, CA4) 1991 US App LEXIS
24374.
Footnote 54. Ruth v Allis-Chalmers Corp. (1986, WD Ky) 40 BNA FEP Cas 1227, 40
CCH EPD 36349, affd without op (CA6) 820 F2d 405, 49 BNA FEP Cas 754 and affd
(CA6) 43 CCH EPD 37133.
945 Requirement of applying for recall

View Entire Section
When an employer does not have a policy of automatically rehiring employees
terminated during a reduction-in-force, a terminated employee generally cannot establish
a prima facie case unless he has applied for the position denied, even if the employer
probably knew the employee would have been interested in the position. However, if the
employer knew, when deciding to discharge the employee, that she would have been
interested in another position but it rejected her, then no application is needed. 55
Footnotes
Footnote 55. Jaffe v Johnson (1988, ND Ill) 1988 US Dist LEXIS 3355.
946 Rebutting employer's economic explanation

View Entire Section

Employers normally defend layoffs and recall decisions on the basis of economic
necessity. An employer's economic justification for a layoff is ultimately a business
decision for which the court is not permitted to substitute its judgment, without an
inference of discrimination. There was no inference of discrimination when the employer
gave raises during the first year after a reorganization, although its rationale for the
layoffs was economics, because the layoffs saved annual salary expenses it had incurred
immediately prior to the layoff. Further, even if the employer could have made a bigger
economic saving by laying off an employee not in the protected group who was earning
more than the plaintiff, it was entitled to exercise its business judgment as to how to
structure the layoffs as long as discrimination did not enter into its deliberations. 56
However, an employer's economic explanation for a layoff may be shown to be
pretextual by evidence that it gave lower-level management general instructions to cut
costs by reducing their staff, but did not give any further guidelines to ensure that
unlawful discrimination did not occur. Managers were likely to respond to unguided
direction by firing the most expensive, and hence the oldest, employees when making
their termination decisions. Discriminatory statements by some managers could be
attributed to the employer as evidence that they interpreted the directive as a message of
the criterion to be used in making termination decisions. 57
Footnotes
Footnote 56. Ailor v First State Bank (1991, CA6) 1991 US App LEXIS 18885.
Footnote 57. Palmer v Reader's Digest Assn. (1992, SD NY) 1992 US Dist LEXIS 3887.
c. Particular Types of Layoffs [947-949]
947 Layoffs based on "last hired, first fired" seniority system provisions
View Entire Section
Cases have frequently arisen in which an employer that earlier followed discriminatory
hiring policies changes those policies and hires on a nondiscriminatory basis, but follows
the "last hired, first fired" rule in layoffs. The result is that recently hired nonwhites and
women are laid off before most white male workers, who acquired their seniority during
the white-only and male-only hiring days. "Last hired, first fired" rules usually have their
origin in seniority provisions contained in collective bargaining agreements. Layoffs
under a truly bona fide seniority system do not violate Title VII, even though
proportionately more blacks and women lose their jobs than white men and the system
thereby perpetuates prior discrimination. 58
The cases have generally turned on
whether the seniority system in question was "bona fide" within the meaning of the Title
VII exception that allows different employment terms or conditions pursuant to a bona
fide seniority system if the differences do not result from an intention to discriminate. 59
Accordingly, conforming with the last hired, first fired procedure dictated by the relevant
collective bargaining agreement was a legitimate, nonpretextual reason under Title VII
for laying off a black employee where a governing consent decree was silent with respect
to the seniority system. The consent decree mandated that the employer follow the
referral system set up by the union. The employer's only responsibility regarding that
system was to use it. The record lacked evidence that the employer had any knowledge
that the union may have been discriminating against the plaintiff in administering the
system, or that the plaintiff had actually reported to the union hall for referral. 60
The EEOC concedes that an employer may institute layoffs under a "bona fide" seniority
system without running afoul of Title VII. It has issued a policy statement, however,
warning employers that employment practices that have an adverse impact on minorities
must be justified by business necessity. The EEOC noted that even where layoffs of
minorities are not discriminatory, employers may be vulnerable to private suit or later
federal enforcement action because layoffs have nullified earlier equal employment
efforts. In this situation, renewed affirmative action efforts would be necessary. 61
Subsequently, the Supreme Court held that the Title VII exception permits the routine
application of a seniority system "absent proof of an intention to discriminate," and that
individuals will be awarded competitive seniority only if they can prove that they have
been actual victims of discrimination. 62
A bona fide seniority system protected a seniority based layoff that was negotiated as part
of the collective bargaining agreement from challenges under 1981, 1983, and 1985,
even though the layoffs effectively nullified minority hiring goals under a voluntary
affirmative action plan and had an adverse impact on minority employees. 63
Footnotes
Annotation: Use of employment seniority in layoff and recall, promotion, or transfer
of employees as unlawful employment practice under Title VII of Civil Rights Act of
1964 (42 USCS 2000e et seq.), 34 ALR Fed 18.
As to seniority systems generally, see 706 et seq.
Footnote 60. White v Colgan Electric Co. (1986, CA6) 781 F2d 1214, 39 BNA FEP Cas
1599, 39 CCH EPD 35831.
Footnote 61. 45 Fed. Reg. 60830 (Sept. 12, 1980).
Footnote 63. NAACP, Detriot Branch v Detroit Police Officers Assn. (1990, CA6) 900
948 Layoffs based on sex-segregated seniority systems

View Entire Section
The use of separate seniority lists for men and women is not normally "bona fide" within
the meaning of the Title VII exception for bona fide seniority systems. 64 Absent a
showing of a bona fide occupational qualification, the maintenance of sex-segregated
seniority lists is unlawful, and reliance on those lists to implement layoffs and recalls is
an unlawful employment practice. 65
Thus, a seniority system is unlawful where, during reductions in force, women are not
permitted to bump less senior men performing work that the women can perform. 66
Also, it is a Title VII violation to discharge a woman in a plant economy move because
female employees have no seniority rights, if the work she is doing is substantially
similar to that of men in the plant who have seniority rights, and if she is replaced by a
man with those rights. 67
Footnotes
As to seniority systems generally, see 706 et seq.
6210.
Footnote 66. First CircuitSciaraffa v Oxford Paper Co. (1970, DC Me) 310 F Supp
Seventh CircuitBowe v Colgate-Palmolive Co. (1969, CA7) 416 F2d 711, 2 BNA FEP
Cas 121, 2 BNA FEP Cas 223, 2 CCH EPD 10090, 61 CCH LC 9326.
6169.
Footnote 67. Danner v Phillips Petroleum Co. (1971, CA5) 447 F2d 159, 3 BNA FEP
Cas 858, 3 CCH EPD 8319.
949 Layoffs not based on seniority
View Entire Section

Although many employers, whether based on a collective bargaining provision or a
company policy, have relied on seniority systems to determine who should be selected
for layoff or recall, 68 that is by no means the only method by which these decisions
may be made. In particular, where there is no collective bargaining provision and the
layoffs reflect a permanent reduction in a work force, employers may utilize merit
systems or other selection devices to choose which employees to retain. Thus, cases have
arisen involving nonseniority related disparate treatment claims. Layoffs have violated
Title VII where they were based on subjective decisions by supervisory employees who
were predominantly white. 69
A plaintiff also can allege discriminatory conspiracy to
lay off and deny recall under Title VII when an employer and a union have agreed to
terminate and not to refer an employee to the employer again because of a prohibited
factor. 70
However, a layoff policy that predicated decisions on valid performance-related criteria
and a department-by-department assessment of staffing needs was not unlawful. 71
Laying off and not recalling employees under other than a seniority system also was not
unlawful where an employee had not been offered a subordinate position because of the
employer's longstanding, uniformly applied policy of not demoting executives in lieu of
termination. The employer had no duty to transfer the employee to another position
within the company when its work force was reduced for economic reasons. 72
Likewise, no Title VII violation occurred when the official choosing which positions to
eliminate for budgetary reasons did not know the national origin of those who were laid
off. 73
An employer successfully defeated a claim that a nonseniority layoff was unlawful
discrimination where:
other part-time employees were laid off at the same time, full-time employees were cut
back to part-time status, and the reduction was caused by economic reasons; 74
the employee would have required additional training for the remaining position.
Furthermore, she failed to produce evidence that the employer's offer of a different
position was calculated to induce her to reject the offer. 75
An employer also articulated a legitimate nondiscriminatory reason for laying off
apprentices when the black plaintiff had been an apprentice, and subsequently laying off
journeymen when the black plaintiff had been a journeyman. At the time of the
apprentice furloughs, the presence of upgraded apprentices in the employer's work force
indicated the need for journeyman labor, and therefore journeymen were furloughed last.
When the absence of upgraded apprentices indicated a decreased need for journeyman
skill, the employer furloughed journeymen first in order to allow apprentices to finish
their training without interruptions. On the occasions when the plaintiff had been
furloughed as an apprentice and as a journeyman, white apprentices and journeymen had
also been furloughed. 76
Footnotes
Footnote 68. 947.
Footnote 69. Taylor v Teletype Corp. (1979, ED Ark) 475 F Supp 958, 20 BNA FEP
Cas1079, 21 CCH EPD 30343, affd in part and vacated in part, app dismd, in part on
other grounds (CA8) 648 F2d 1129, 26 BNA FEP Cas 124, 25 CCH EPD 31789, cert
32164.
Footnote 70. Egger v Local 276, Plumbers & Pipefitters Union (1986, DC Mass) 644 F
Footnote 72. Ridenour v Lawson Co. (1986, CA6) 791 F2d 52, 40 BNA FEP Cas 1455,
40 CCH EPD 36297.
Footnote 73. Blazquez v Chicago (1987, ND Ill) 43 BNA FEP Cas 1136.
Footnote 74. Mann v Milgram Food Stores, Inc. (1984, CA8) 730 F2d 1186, 34 BNA
Footnote 75. Branson v Price River Coal Co. (1986, DC Utah) 627 F Supp 1324, 45 BNA
46 CCH EPD 37958.
Footnote 76. Strange v Norfolk & Westerns Railway Co. (CA4) 809 F2d 786.
5. Work Environment [950-1022]
a. Harrassment [950-986]
(1). Overview [950-967]
950 Generally
View Entire Section
Go to Supplement
Although nothing in federal job discrimination law expressly prohibits employer
harassment of workers, 77 harassment of an employee on the basis of a protected factor

(race, color, sex, religion, and national origin 78 has been held to be a violation of Title
VII. 79
State aspects: A number of state job discrimination statutes expressly prohibit

harassment based on a variety of prohibited types of discriminations. 80 Besides state
statutory protections, state common law claims have also been asserted by harassment
victims. 81
The ADEA has been interpreted to prohibit the harassment of employees on the basis of
age. 82
1991, 84 is intended to cover harassment. 85
The Civil Rights Act of 1991's amendment of 1981 supersedes. 86 the Supreme Court's
ruling that the application of 1981 was limited in the employment context to hiring and
promotion decisions that involved the formation of new contracts, and did not apply to
such post-formation conduct as racial harassment on the job. 87
A sexual harassment claim may also be raised under 42 USCS 1983, by public
employees claiming a violation of their constitutional rights to equal protection, provided
the other requirements of that type of action are also satisfied. 88
Caution: Job discrimination laws that explicitly or implicitly regulate all terms,
conditions, or privileges of employment 89 may be reasonably construed also to
regulate harassment, subject to the same exceptions applicable to all terms and
conditions. 90
Practice Aids: Sexual harassment in the workplace:a guide to the law and a research
overview for employers and employees, 23 Anglo-American LR 254 (1994).
Conditions of Work: Combating Sexual Harassment at Work, (Geneva: International
Labour Office, 1992. 299 pp. $36.00), (Reviewed), 15 Comp Labor L 119 (1993).
Hostile environment harassment: Equality, objectivity, and the shaping of legal
standards, 43 Emory LJ 151 (1994).
When faith and work collide: Defining standards for religious harassment in the
workplace, 21 Emp Rel LJ 1:7 (1995).
Hostile environment sexual harassment: Has Harris [ 126 LEd2d 295 (1993)] really
changed things? 19 Emp Rel LJ 567 (1994).
The broadening scope of harassment in the workplace, 19 Emp Rel LJ 639 (1994).
Employment discriminationsexual harassmentNew Jersey Supreme Court adopts a
gender-specific reasonableness standard. Lehmann v. Toys 'R' Us, Inc., 107 Harv LR 955
(1994).
The case of the missing woman: Sexual harassment and judicial review of arbitration
awards, 17 Harv Women's LJ 17 (1994).
Workers' compensation and sexual harassment in the workplace: A remedy for
employees, or a shield for employers? 11 Hofstra Lab LJ 141 (1993).
Sexual harassment: The continuing workplace crisis, 45 Lab LJ 195 (1994).
Harris v. Forklift Systems, Inc. and hostile environment harassment, 46 Lab LJ 5:314
(1995).
Sexual harassment and employment-at-will: The intersection of two policies, 45 Lab LJ
9:586 (1994).
Battling sexual harassment; Harris v. Forklift Systems signaled no major shift in the law,
but lower court decisions are adding to employers' risks, 17 Legal Times 10:S33 (1994).
Model policies condemn sexual harassment by legal employers, 26 Md BJ Mar:40
(1993).
Identifying sexual harassment in the legal profession: what is it and why is it a problem?
65 NY St BJ Mar:28 (1993).
Dealing with sexual harassment in the workplace: The promise and limitations of human
rights discourse, 32 Osgoode Hall LJ 33 (1994).
Understanding and preventing sexual harassment after Harris [ 126 LEd2d 295 (1993)],
40 Prac Law 6:15 (1994).
Civil rightsTitle VII protection for centerfoldBurns v. McGregor Electronic Industries,
Inc., 989 F.2d 959 (1993), 66 Temp LR 1039 (1993).
Proving damages in a sexual harassment case, 30 Trial 4:34 (1994).
Sex discrimination: Psychological injury from hostile work environment sexual
harassment, 20 U Dayton LR 3:1049 (1995).
The United States Supreme Court opinion in Harris v. Forklift Systems : Full of sound
and fury signifying nothing, 43 U Kan LR 2:275 (1995).
Case authorities:
Under Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), the
language in 42 USCS 2000e-2(a)(1)which in pertinent part prohibits an employer
from discriminating against an individual with respect to "terms, conditions, or privileges
of employment," on the basis of race, color, religion, sex, or national originis not limited
to "economic" or "tangible" discrimination and evinces a congressional intent to strike at
the entire spectrum of disparate treatment of men and women in employment, which
treatment includes requiring people to work in a discriminatorily hostile or abusive

environment; when the workplace is permeated by discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive as to alter the conditions of a victim's
employment and to create an abusive working environment, Title VII is violated; this
standard takes a middle path between making actionable any conduct that is merely
offensive and requiring the conduct to cause a tangible psychological injury; the mere
utterance of an epithet which engenders offensive feelings in an employee does not
sufficiently affect the conditions of employment to implicate Title VII; conduct that is not
severe or pervasive enough to create an objectively hostile or abusive work
environmentan environment that a reasonable person that would find hostile or
abusiveis beyond Title VII's purview; likewise, if the victim does not subjectively
perceive the environment to be abusive, the conduct has not actually altered the
conditions of the victim's employment, and there is no Title VII violation; Title VII
comes into play, however, before the harassing conduct leads to a nervous breakdown, as
(1) a discriminatorily abusive work environment, even one that does not seriously affect
an employee's psychological well- being, can and often will detract from employees' job
performance, discourage employees from remaining on the job, or keep them from
advancing in their careers, and (2) even without regard to these tangible effects, the very
fact that the discriminatory conduct was so severe or pervasive that it created a work
environment abusive to employees because of their race, gender, religion, or national
origin offends Title VII's broad rule of workplace equality; so long as the environment
would reasonably be perceivedand is perceivedas hostile or abusive, there is no need
for the environment also to be psychologically injurious; this is not, and by its nature
cannot be, a mathematically precise test; whether an environment is "hostile" or
"abusive" can be determined only by looking at all the circumstances, which may include
the frequency of the discriminatory conduct, its severity, whether the conduct is
physically threatening or humiliating or a mere offensive utterance, and whether the
conduct unreasonably interferes with an employee's work performance; the effect on an
employee's psychological well-being is relevant to determining whether the employee
actually found the environment abusive, but while psychological harm, like any other
relevant factor, may be taken into account, no single factor is required. Harris v Forklift
Sys. (US) 126 L Ed 2d 295, 114 S Ct 367.
Discharged public hospital employee stated 42 USCS 1983 claim under equal
protection clause based on improper sexual conduct of supervisor, as sexual harassment
of women constitutes disparate treatment because of gender in violation of equal
protection clause. Saulpaugh v Monroe Community Hosp. (1993, CA2 NY) 4 F3d 134,
Case law regarding sexual harassment under Title VII (42 USCS 2000e et seq.) can
be applied to claims of racial harassment in workplace under 42 USCS 1981; thus,
where employer implements timely and adequate corrective measures after harassing
conduct has come to its attention, vicarious liability should be barred regardless of
specific motivation for wrongdoing or particular cause of action. Dennis v County of
Fairfax (1995, CA4 Va) 55 F3d 151, 67 BNA FEP Cas 1681.
Employee's claim against employer under 42 USCS 1981 is dismissed, where
complaint alleged hostile environment sexual harassment, because sexual harassment is
not actionable under 1981. McCoy v Johnson Controls World Servs. (1995, SD Ga)
Harassment is broad term, encompassing wide variety of behavior, and mere fact that
EEOC has chosen to distinguish between sexual harassment and gender-based

harassment by issuing two separate sets of guidelines does not conclusively establish that
two forms of harassment are completely distinct or mutually exclusive. Stein v Chessie
Computer Servs. (1993, DC Md) 63 BNA FEP Cas 948.
Supervisors may be held individually liable under Title VII for sexual harassment.
Crosten v Kamauf (1996, DC Md) 70 BNA FEP Cas 1144.
Same gender harassment/discrimination claim is not beyond reach of Title VII, as long as
discrimination occurs because of employee's gender, since statute prohibits employer of
whatever gender from discriminating against employee on basis of employee's gender.
Tietgen v Brown's Westminster Motors (1996, ED Va) 921 F Supp 1495, 70 BNA FEP
Cas 1020.
Harassment by male supervisor against male subordinate does not state claim under Title
VII, even though harassment has sexual overtones. Giddens v Shell Oil Co. (1993, CA5
Tex) 67 BNA FEP Cas 576.
Same-sex sexual harassment is not cognizable under Title VII. Oncale v Sundowner
Offshore Servs. (1996, CA5 La) 83 F3d 118, 70 BNA FEP Cas 1303.
Title VII sexual harassment claimant does not, by virtue of nature of claim, put her
emotional state in controversy, and fact that she alleges damages for emotional distress
associated with working in hostile environment does not of itself warrant FRCP 35(a)
examination. Lahr v Fulbright & Jaworski, L.L.P. (1996, ND Tex) 164 FRD 204.
If victim of sexual harassment (which is often cumulative process rather than one-time
event) sues as soon as harassment becomes sufficiently palpable that reasonable person
would realize she had substantial claim under Title VII, then she sues in time and can
allege as unlawful conduct entire course of conduct that in its cumulative effect has made
her working conditions unbearable. Galloway v GM Serv. Parts Operations (1996, CA7
Ill) 78 F3d 1164, 70 BNA FEP Cas 341, 67 CCH EPD 43966, reh, en banc, den (1996,
CA7 Ill) 1996 US App LEXIS 6388.
Title VII plaintiff was not entitled to production of questionnaires filled out by
employer's managers at sexual harassment training seminars conducted by employer's
attorneys, since questionnaires were protected by attorney-client privilege. Curcio v
Chinn Enters. (1996, ND Ill) 70 BNA FEP Cas 9.
Title VII prohibits same-sex or same-gender sexual harassment. Ton v Information
Resources (1996, ND Ill) 70 BNA FEP Cas 355.
Equal harassment of both genders does not escape purview of Title VII; where harasser
violates both men and women, it is not unthinkable to argue that each individual who is
harassed is being treated badly because of gender. Chiapuzio v BLT Operating Corp.
(1993, DC Wyo) 826 F Supp 1334, 62 BNA FEP Cas 707.
Female ocean lifeguard is entitled to $10,000 in compensatory damages against two male
supervisors, where lifeguard and others testified to supervisors' uninvited touching of
buttocks and breasts, and to their use of crude and off-color language, because reasonable
person would have known that this type of sexual harassment violated clearly established
law, even though 1983 cause of action for sexual harassment, as violative of Equal
Protection Clause of Fourteenth Amendment, has not yet been addressed by Eleventh
Circuit. Faragher v City of Boca Raton (1994, SD Fla) 864 F Supp 1552, 8 FLW Fed D
379.
Female employee's state law claim for hostile work environment sexual harassment,
based upon male employees peeping at her while she showered on employer's premises,
was not barred by 29 USCS 185. Manning v Wire Rope Corp. of Am. (1993, Mo Cir
Ct) 63 BNA FEP Cas 1156.
Harassing conduct of defendant in repeatedly threatening and physically abusing
complainant at his place of employment because of complainant's perceived race or creed
provided factual basis for jury's finding that defendant intentionally interfered with
complainant's civil right to pursue employment, thereby supporting defendant's
conviction of discrimination as defined in CLS Civ R 40-c(2). People v Dieppa (1993,
Sup) 158 Misc 2d 584, 601 NYS2d 786.
Footnotes
Footnote 77. The following discussion applies to harassment based on any protected
characteristic (i.e. sex, race, age, national origin, or religion) unless otherwise noted.
Footnote 79. EEOC v Murphy Motor Freight Lines, Inc. (1980, DC Minn) 488 F Supp
Footnote 80. State job discrimination laws explicitly or implicitly regulating harassment
are discussed in the Employment Coordinator at EP-22,245 et seq.
Footnote 81. 967.
Footnote 82. Drez v E.R. Squibb & Sons, Inc. (1987, DC Kan) 674 F Supp 1432, 46 CCH
EPD 38005.
Footnote 84. P.L. 102-166 101(2).
Forms: Allegations in complaintRacial discrimination by employerHarassment [42
USCS 2000e et seq.]. 12 Federal Procedural Forms, L Ed, Job Discrimination
45:112.
Footnote 87. Patterson v McLean Credit Union (1989, US) 105 L Ed 2d 132, 109 S Ct
Footnote 88. Pontarelli v Stone (1991, CA1) 930 F2d 104, 55 BNA FEP Cas 1495, 56
CCH EPD 40751.

951 Public employees' harassment claims

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In addition to federal statutory protection, 91 public employees who have been
subjected to harassment may find protection in the federal Constitution. Because sexual
harassment is gender-based discrimination, sexual harassment by a public employer may
violate the equal protection clause of the Constitution. 92 Racial harassment also may
violate equal protection. 93
In determining whether harassment by a public employer violates the equal protection
clause, the ultimate inquiry is whether the harassment constitutes intentional
discrimination. This showing can be made by proof that harassment attributable to the
employer amounted to intentional discrimination, or by proof that the employer's
conscious failure to protect the plaintiff from the abusive conditions created by fellow
employees amounted to intentional discrimination. 94
The question has arisen as to whether harassment based on sexual attraction, as opposed
to the victim's status as a woman, can amount to intentional gender-based discrimination
that violates the equal protection clause. While an equal protection claim of sexual
harassment is not supported by proof that an employee was harassed because a romance
went sour, because that indicates that the alleged discriminatory conduct was only
coincidental to gender, 95 treatment of an individual based on sexual desire is sexually
motivated, and therefore establishes the required intent for an equal protection claim. 96
The view that sexual harassment by a public employer can violate the equal protection
clause has also been approved by the Eight Circuit, 97 and the Tenth Circuit. 98
However, another panel of the Seventh Circuit has held that a sexual discrimination claim
on equal protection grounds must show an intent to discriminate on the basis of the
plaintiff's status as a female and not on the basis of characteristics of her gender which
are personal to her. Although this line may become indistinct when those factors which
are personal to an individual include attributes of sexual attraction, a plaintiff must
demonstrate in a colorable manner that a supervisor's advances were based on her status
as a woman as opposed to characteristics, albeit some no doubt sexual, that were personal
to her. 99
Title VII proof standards have been applied in determining whether public employees
proved equal protection violations based on working environment and tangible job
benefit claims of sexual harassment 1 and a claim of racially hostile work environment.
2
In addition, public employees may base claims on the constitutional protections of the
First Amendment. However, to do so, the allegations of harassing speech are required to
be of public, not merely private, concern. 3
951 ----Public employees' harassment claims [SUPPLEMENT]
Case authorities:
Secretary's 1983 claims against city and officials will not be denied summarily, where
secretary alleges specific instances of sexual harassment by police chief, and numerous
forms of on-job retaliations for her complaints about it, because complaint describes
custom or practice of discrimination at highest level of police department policymaking
and accuses police supervisors and mayor of clearly unconstitutional acts. Dirksen v City
of Springfield (1994, CD Ill) 842 F Supp 1117, 64 BNA FEP Cas 116.
Legal standard for sexual harassment in federal workplace requires both objective and
subjective inquiry, respectively to determine whether reasonable person would find
misconduct hostile or abusive and whether victim perceived misconduct as creating
hostile or abusive environment; both inquiries require that sexual harassment be judged
from perspective of one being harassed, and harasser's intent is not element of offense.
King v Frazier (1995, CA FC) 77 F3d 1361.
Footnotes
Footnote 91. 950.
Footnote 92. Skadegaard v Farrell (1984, DC NJ) 578 F Supp 1209, 33 BNA FEP Cas
1528, 34 CCH EPD 34323; Estate of Scott v De Leon (1985, ED Mich) 603 F Supp
1328, 37 BNA FEP Cas 563.
Footnote 93. Risinger v Ohio Bureau of Workers' Compensation (1989, CA6) 883 F2d
Footnote 94. Bohen v East Chicago (1986, CA7) 799 F2d 1180, 41 BNA FEP Cas 1108,
41 CCH EPD 36450.
EPD 37957.
EPD 37957; King v Board of Regents of University of Wisconsin System (1990, CA7)
898 F2d 533, 52 BNA FEP Cas 809, 53 CCH EPD 39770, also noting that it is not a
valid defense to assert that the plaintiff was not a member of a protected class but was
instead simply a member of a class of people with whom the defendant wished to have an
affair.
Footnote 97. Headley v Bacon (1987, CA8) 828 F2d 1272, 51 BNA FEP Cas 778.
Footnote 98. Starrett v Wadley (1989, CA10) 876 F2d 808, 51 BNA FEP Cas 608, 50
CCH EPD 39023.
Footnote 99. Trautvetter v Quick (1990, CA7) 916 F2d 1140, 54 BNA FEP Cas 109, 54
CCH EPD 40316.
Footnote 1. Lipsett v University of Puerto Rico (1988, CA1) 864 F2d 881, 54 BNA FEP
Cas 230, 48 CCH EPD 38393.
Footnote 2. Risinger v Ohio Bureau of Workers' Compensation (1989, CA6) 883 F2d
Footnote 3. Callaway v Hafeman (1986, WD Wis) 628 F Supp 1478, 40 CCH EPD
36356, affd (CA7) 832 F2d 414, 45 BNA FEP Cas 154, 2 BNA IER Cas 1093, 45 CCH
EPD 37716, rejecting a school district's affirmative action officer and human relations
coordinator's First Amendment claim that she was demoted for having informed her
superiors that her supervisor had sexually harassed her, where the issues raised were of
personal, not public, concern.
952 Types of unlawful harassment under federal law

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Two types of harassment are unlawful under Title VII: (1) situations in which tangible
job benefits are granted or withheld based on submission to or rejection of unwelcome
requests or conduct, based on a statutorily protected characteristic, such as sex; and (2)
situations in which the working environment is oppressive to members of a protected
group because of the actions of coworkers, supervisors, or customers.
The first type of harassment or "tangible job benefit" harassment is also sometimes
known as "quid pro quo" harassment. It occurs when submission to or rejection of the
unwelcome conduct, such as a sexual advance or a request for sexual favors, 4 is used as
the basis for employment decisions affecting an individual, 5 or is made explicitly or
implicitly a term or condition of an individual's employment. 6 Examples of tangible
job benefit harassment in the context of sex discrimination include:
continued success and advancement dependent on agreeing to sexual demands; 7
assignment of more onerous tasks, 8 or discharge for rebuffing sexual advances; 9
refusal to hire for not acquiescing to sexual advances; 10
failure to promote for not meeting sexual stereotypical expectations. 11
The second type of unlawful harassment may occur absent any economic effect on the
complainant's employment, and is referred to as "hostile work environment" harassment.
Discrimination based on sex, 12

race, 13 color, religion, 14 and national origin, 15
if it creates a hostile or abusive work environment, violates Title VII, and if the
discrimination is based on age, it violates the ADEA. 16
A "hostile work environment" harassment claim involves a pervasive atmosphere 17 of
discriminatorily severe 18 or unwelcome 19 working conditions that have the purpose
or effect of unreasonably interfering with an individual's work performance or creating an
intimidating, hostile, or offensive working environment. 20 This situation is variously
referred to by the courts as a "condition of work," 21 a "discriminatory work
environment," 22 "a hostile and offensive atmosphere," 23 or "an intimidating, hostile
or offensive working environment." 24
Observation: "Tangible job benefit" and "hostile work environment" harassment

claims may interact in the same work situation. 25 Furthermore, a "hostile work
environment" claim may be used as part of the proof of another form of job
discrimination, such as a constructive discharge. 26
The EEOC will examine the surrounding circumstances on a case-by-case basis in
determining whether particular conduct constitutes unlawful harassment and violates
Title VII. 27
Observation: Both types of harassment claims require showing of intentional

discrimination under the disparate treatment method of proof. 28
952 ----Types of unlawful harassment under federal law [SUPPLEMENT]
Practice Aids: Expanding the hostile environment theory to cover age discrimination:
How far is too far? 23 Pepp LR 2:565 (1996).
Case authorities:
Under Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), the
language in 42 USCS 2000e-2(a)(1)-which in pertinent part prohibits an employer
from discriminating against an individual with respect to "terms, conditions, or privileges
of employment," on the basis of race, color, religion, sex, or national origin-is not limited
to "economic" or "tangible" discrimination and evinces a congressional intent to strike at
the entire spectrum of disparate treatment of men and women in employment, which
treatment includes requiring people to work in a discriminatorily hostile or abusive
environment; when the workplace is permeated by discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive as to alter the conditions of a victim's
employment and to create an abusive working environment, Title VII is violated. Harris v
Forklift Sys. (1993, US) 126 L Ed 2d 295, 114 S Ct 367, 93 CDOS 8330, 93 Daily
Journal DAR 14212, 63 BNA FEP Cas 225, 62 CCH EPD P 42623, 7 FLW Fed S 655,
on remand, remanded (CA6 Tenn) 14 F3d 601, reported in full (CA6 Tenn) 1993 US App
LEXIS 33033 and injunction gr (MD Tenn) 66 BNA FEP Cas 1886.
There is no difference in standards applicable to racially and sexually hostile work
environments. West v Philadelphia Elec. Co. (1995, CA3 Pa) 45 F3d 744, 66 BNA FEP
Cas 1524.
University clerical employees may proceed with Title IX (20 USCS 1681) sexual
harassment claims against university and supervisor, where allegations include constant
leering, unwanted touching and kissing, continual solicitation for dates despite polite
discouragement, and retaliation, because complaint states prima facie claims of hostile
work environment prong of sexual harassment; Title IX claims are appropriately
analyzed under standards applicable to cases brought under Title VII (42 USCS
2000e et seq.). Ward v Johns Hopkins Univ. (1994, DC Md) 861 F Supp 367, 66 BNA
FEP Cas 872.
Fact that Title VII plaintiff engaged in consensual sex with official of defendant
employer did not bar case for quid pro quo sexual harassment, because issue was whether
sexual advances were unwelcome, not whether participation in sex was voluntary. Boyd
v Vonnahmen (1995, SD Ill) 67 BNA FEP Cas 1769.
To prevail on quid pro quo discrimination claim, Title VII plaintiff must show that
concrete employment benefits were conditioned on submission to sexual conduct; to
prevail under hostile work environment theory, plaintiff must show that sexual conduct
has purpose or effect of unreasonably interfering with individual's work performance or
creating intimidating, hostile or offensive working environment. Martin v Nannie &
Newborns (1993, CA10 Okl) 3 F3d 1410, 62 BNA FEP Cas 1275, 62 CCH EPD 42533.
If racial slurs had been made against black female employee's unborn child, she would
not have been unreasonable in considering such slurs as harassment of herself. Ziegler v
K-Mart Corp. (1994, DC Kan) 65 BNA FEP Cas 1694.
Footnotes
Footnote 4. 961.
Footnote 5. 29 CFR 1604.11(a)(2).
Footnote 6. 29 CFR 1604.11(a)(1).
Footnote 7. Tomkins v Public Service Electric & Gas Co. (1977, CA3) 568 F2d 1044, 16
Footnote 8. Robson v Eva's Super Market, Inc. (1982, ND Ohio) 538 F Supp 857, 30
BNA FEP Cas 1212.
Footnote 9. Garber v Saxon Business Products, Inc. (1977, CA4) 552 F2d 1032, 15 BNA
FEP Cas 344, 14 CCH EPD 7587; Munford v James T. Barnes & Co. (1977, ED Mich)
441 F Supp 459, 17 BNA FEP Cas 107, 16 CCH EPD 8233; Heelan v Johns-Manville
Corp. (1978, DC Colo) 451 F Supp 1382, 20 BNA FEP Cas 251, 16 CCH EPD 8330.
Footnote 10. Rinkel v Associated Pipeline Contractors (1978, DC Alaska) 17 BNA FEP
Cas 224, 16 CCH EPD 8331, 84 CCH LC 33672.
Forms: Complaint in federal courtDiscrimination in employment based on

sexSexual harrassment. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form 121.
Footnote 12. Meritor Sav. Bank, FSB v Vinson (1986) 477 US 57, 91 L Ed 2d 49, 106
Annotation: When is work environment intimidating, hostile, or offensive, so as to
constitute sexual harassment in violation of Title VII of Civil Rights Act of 1964, as
amended (42 USCS secs. 2000e et seq.), 78 ALR Fed 252.
FEP Cas 317; EEOC Decision No. 72-1114 (1972) 4 BNA FEP Cas 842.
Footnote 15. EEOC Decision No. CL 68-12-431FU (1969) CCH EEOC Decisions
6085, 2 BNA FEP Cas 295.
Footnote 16. Zoetvelt v Illinois Bell Tel. Co. (1988, ND Ill) 1988 US Dist LEXIS 14070.
Footnote 17. 968.
Footnote 18. 969.
Footnote 19. 971.
Footnote 20. 29 CFR 1604.11(a).
Footnote 21. Katz v Dole (1983, CA4) 709 F2d 251, 31 BNA FEP Cas 1521, 32 CCH
EPD 33639.
Footnote 22. Bundy v Jackson (1981) 205 App DC 444, 641 F2d 934, 24 BNA FEP Cas
1155, 24 CCH EPD 31439.
Footnote 23. Henson v Dundee (1982, CA11) 682 F2d 897, 29 BNA FEP Cas 787, 29
CCH EPD 32993.
982, 28 CCH EPD 32497.
Footnote 25. 955.
Footnote 26. 957.
Footnote 27. 29 CFR 1604.11(b).
Footnote 28. As to the disparate treatment method of proof, see 2699 et seq.
Whether the same proof requirements apply to harassment based on different types of
discrimination is discussed at 956.
953 Demonstrating harassment involving a "tangible job benefit"

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A prima facie case of "tangible job benefit" harassment can be established by showing
that the employee belongs to a protected group, was subject to unlawful harassment
based on a prohibited type of discrimination, such as sex, which affected tangible aspects
of the employee's terms, conditions, or privileges of employment, 29 and that the
employer is responsible for the harassment. 30
Observation: "Tangible job benefit" harassment primarily arises in the context of

sex discrimination, although it may occur infrequently in religious discrimination
situations. Since this type of harassment entails a "choice" by the victim, it cannot
occur in race, national origin, or age circumstances.
The effect the harassment has on employment can be either an expressed or implied
condition on the receipt of a job benefit, or the cause of a tangible job detriment, although
the employee must prove that she was otherwise qualified for the benefit in the absence
of the harassment. 31
A successful "tangible job benefit" harassment claim also requires showing a causal
connection between the harassment on an unlawful basis, such as sex, and the job benefit
in issue. 32 Such a connection will not be demonstrated where the officials responsible
for the benefit decision had no knowledge of the harassment and the harasser had no role
to play in the benefit decision. 33 Therefore, although they had had sexual relations in
the past, where a plaintiff's supervisor had never mentioned sex in connection with any
employment benefit or detriment, there was no demonstrated connection between the
sexual conduct and any economic benefit or detriment, and hence, no case of "tangible
job benefit" harassment. 34
The passage of a long period of time between the harassment and the job benefit decision
may also make proof of causation difficult, such as when two years elapsed from the time
the plaintiff rejected a sexual advance and her termination by the employer who made it.
35
953 ----Demonstrating harassment involving a "tangible job benefit"
[SUPPLEMENT]
Case authorities:
Title VII plaintiff is not required to present evidence of actual, rather than threatened,
economic loss in order to state valid claim of quid pro quo sexual harassment. Karibian v
Columbia Univ. (1994, CA2 NY) 14 F3d 773, 63 BNA FEP Cas 1038.
Title VII plaintiff proceeding under quid pro quo theory of sexual harassment must
establish that she was denied economic benefit either because of gender or because
sexual advance was made by supervisor and rejected by her; thus, plaintiff, whose claim
of sexual harassment was based on conduct of co-worker who had no supervisory
authority over her, and who did not claim that her job conditions were altered or that
economic benefit was conditioned on or withheld because she refused to submit to sexual
demands, could not make out case of quid pro quo sexual harassment. Donato v
Rockefeller Fin. Servs. (1994, SD NY) 65 BNA FEP Cas 1722.
Footnotes
Footnote 29. Spencer v General Electric Co. (1990, CA4) 894 F2d 651, 51 BNA FEP Cas
Footnote 30. Koster v Chase Manhattan Bank (1988, SD NY) 687 F Supp 848, 46 BNA
FEP Cas 1436, 47 CCH EPD 38229.
Footnote 32. Neidhardt v D.H. Holmes Co. (1979, ED La) 21 BNA FEP Cas 452, affd
Footnote 33. Koster v Chase Manhattan Bank (1988, SD NY) 687 F Supp 848, 46 BNA
FEP Cas 1436, 47 CCH EPD 38229.
Footnote 34. Walker v Sullair Corp. (1990, WD NC) 57 CCH EPD 40997.
Footnote 35. Silverberg v Baxter Healthcare Corp. (1990, ND Ill) 52 BNA FEP Cas
1848, 53 CCH EPD 40031.
954 Demonstrating "hostile work environment" harassment

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In a "hostile work environment" harassment claim where no job benefits are affected by
the undesirable conduct alleged, a plaintiff must demonstrate both that sexual or other
discriminatory harassing actions took place, and that the employer was responsible for
the harassment. 36
Observation: Like "tangible job benefit" harassment 37 a successful presentation of

this type of claim requires a showing that the harassment was pervasive 38 and severe
39 or unwelcome. 40
In determining whether harassment is sufficiently serious enough to create a "hostile
work environment," the employer's conduct as a whole is evaluated in the context of all
the relevant circumstances. 41
The Third Circuit has established a five-factor test for establishing hostile work
environment harassment claims under Title VII. The factors are: (1) the employee
suffered intentional discrimination due to sex; (2) the discrimination was pervasive and
regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination
would detrimentally affect a reasonable person of the same sex in that position; and (5)
the existence of respondeat superior liability. 42 The Seventh Circuit has held that to
maintain a Title VII claim based on hostile work environment sexual harassment, a
plaintiff must satisfy five elements: (1) the employee was a member of a protected class;
(2) the employee was subject to unwelcome sexual harassment in the form of sexual
advances, requests for sexual favors, or other verbal or physical conduct of a sexual
nature; (3) the harassment complained of was based on sex; (4) the harassment had the
effect of unreasonably interfering with the plaintiff's work performance in creating an
intimidating, hostile, or offensive environment that affected seriously the psychological
well-being of the plaintiff, and (5) the existence of respondeat superior liability, that is,
an employer's liability for the acts of his employees committed in the course and scope of
their employment. 43
954 ----Demonstrating "hostile work environment" harassment [SUPPLEMENT]
Practice Aids: Continuing violations and hostile environment sexual harassment:
When is enough, enough? 31 Am Bus LJ 365 (1993).
Emerging issues in hostile work environment sexual harassment, 65 NY St BJ Mar:38
(1993).
The role of workplace hostility in determining prospective remedies for employment
discrimination: A call for greater judicial discretion in awarding front pay, 1996 U Ill LR
2:319 (1996).
Case authorities:
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive
work environment-an environment that a reasonable person that would find hostile or
abusive-is beyond Title VII's purview; likewise, if the victim does not subjectively
perceive the environment to be abusive, the conduct has not actually altered the
conditions of the victim's employment, and there is no Title VII violation; Title VII
comes into play, however, before the harassing conduct leads to a nervous breakdown, as
(1) a discriminatorily abusive work environment, even one that does not seriously affect
an employee's psychological well-being, can and often will detract from employees' job
performance, discourage employees from remaining on the job, or keep them from
advancing in their careers, and (2) even without regard to these tangible effects, the very
fact that the discriminatory conduct was so severe or pervasive that it created a work
environment abusive to employees because of their race, gender, religion, or national
origin offends Title VII's broad rule of workplace equality; so long as the environment
would reasonably be perceived- and is perceived-as hostile or abusive, there is no need
for the environment also to be psychologically injurious; this is not, and by its nature
cannot be, a mathematically precise test; whether an environment is "hostile" or
"abusive" can be determined only by looking at all the circumstances, which may include
the frequency of the discriminatory conduct, its severity, whether the conduct is
physically threatening or humiliating or a mere offensive utterance, and whether the
conduct unreasonably interferes with an employee's work performance; the effect on an
employee's psychological well-being is relevant to determining whether the employee
actually found the environment abusive, but while psychological harm, like any other
relevant factor, may be taken into account, no single factor is required. Harris v Forklift
Sys. (1993, US) 126 L Ed 2d 295, 114 S Ct 367, 93 CDOS 8330, 93 Daily Journal DAR
14212, 63 BNA FEP Cas 225, 62 CCH EPD P 42623, 7 FLW Fed S 655, on remand,
remanded (CA6 Tenn) 14 F3d 601, reported in full (CA6 Tenn) 1993 US App LEXIS
33033 and injunction gr (MD Tenn) 66 BNA FEP Cas 1886.
In deciding, in a suit by a female worker against a company she quit, whether, for
purposes of Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), the
conduct of the company's male president created an abusive work environment for the
worker because of her gender, it is improper for a Federal District Court to rely on
whether the president's conduct seriously affected the worker's psychological well-being
or led her to suffer injury, for such an inquiry may needlessly focus the factfinder's
attention on concrete psychological harm, an element that Title VII does not require;
while Title VII bars conduct that would seriously affect a reasonable person's
psychological well-being, the statute is not limited to such conduct. Harris v Forklift Sys.
(US) 126 L Ed 2d 295, 114 S Ct 367.
To establish prima facie case of quid pro quo sexual harassment, plaintiff must present
evidence that she was subject to unwelcome sexual conduct, and that her reaction to that
conduct was then used as basis for decisions affecting compensation, terms, conditions or
privileges of her employment. Karibian v Columbia Univ. (1994, CA2 NY) 14 F3d 773,
Under quid pro quo theory of sexual harassment, plaintiff employee must establish that
he or she was denied economic benefit either because of gender or because sexual
advance was made by supervisor and rejected; hostile work environment theory requires
that plaintiff prove not only actionable sex discrimination, but also that supervisor's
actions should be imputed to employer. Anderson v S.U.N.Y. Health Science Ctr. (1993,
ND NY) 62 BNA FEP Cas 890.
For hostile work environment sexual harassment to be actionable, it must be sufficiently
severe or pervasive to alter conditions of victim's employment and create abusive
working environment; in determining whether or not such harassment has occurred, focus
should be on perspective of victim; supervisor's sexual preference, habits, history or
behavior, other than extent to which supervisor is alleged to have engaged in sexual
harassment in past, is irrelevant and not subject to discovery. Jones v Commander, Kan.
Army Ammunitions Plant, Dep't of Army (1993, DC Kan) 147 FRD 248.
In deciding hostile environment sexual harassment claim, court is to look at totality of
circumstances; offensive conduct is not necessarily required to include sexual overtones
in every instance. Egli v Stevens (1993, ED Pa) 68 BNA FEP Cas 375, 61 CCH EPD
42264.
Sexual harassment based on hostile work environment exists where there are sexual
advances, fondling or sexually suggestive workplace atmosphere that employee finds
unwelcome. Hott v VDO Yazaki Corp. (1996, WD Va) 922 F Supp 1114, 70 BNA FEP
Cas 1008, 3 BNA WH Cas 2d 538.
In determining whether working environment is sexually hostile or abusive, all

circumstances must be considered, including frequency of discriminatory conduct, its
severity, whether it is physically threatening or humiliating, or mere offensive utterance,
and whether it unreasonably interferes with employee's work performance. DeAngelis v
El Paso Mun. Police Officers Ass'n (1995, CA5 Tex) 51 F3d 591, 67 BNA FEP Cas
1250, 66 CCH EPD 43531.
No single act can more quickly alter conditions of employment and create abusive
working environment than use of unambiguously racial epithet such as "nigger" by
supervisor in presence of his subordinates. Rodgers v Western-Southern Life Ins. Co.
(1993, CA7 Wis) 12 F3d 668, 63 BNA FEP Cas 694, 63 CCH EPD 42729.
White employees, who alleged that their employer discriminated against them by
allowing black coworker to be vulgar and disruptive, failed to state cause of action for
hostile work environment based on race, since Title VII does not guarantee utopian or
even pleasant workplace, but rather provides that employee is to be free from racial discri
mination in workplace. Vore v Indiana Bell Tel. Co. (1994, CA7 Ind) 32 F3d 1161, 65
BNA FEP Cas 897.
Infrequency of offensive comments is relevant to assessment of their impact; handful of
such comments spread over months is unlikely to have so great emotional impact as
concentrated or incessant barrage. Baskerville v Culligan Int'l Co. (1995, CA7 Ill) 50 F3d
Line between merely unpleasant working environment on one hand, and hostile or deeply
repugnant one on other hand, is not bright line, and when it is uncertain on which side
defendant's conduct lies, jury's verdict, whether for or against defendant, cannot be set
aside in absence of trial error. Baskerville v Culligan Int'l Co. (1995, CA7 Ill) 50 F3d
In determining whether work environment has been rendered hostile or abusive, court
must be particularly concerned with frequency of discriminatory conduct, its severity,
whether it is physically threatening or humiliating, and whether it unreasonably interferes
with employee's work performance. Ficek v Griffith Lab. (1995, ND Ill) 67 BNA FEP
Cas 1396.
In assessing hostility of environment, court must look to totality of circumstances. Stacks
v Southwestern Bell Yellow Pages (1994, CA8 Ark) 27 F3d 1316, 65 BNA FEP Cas 341.
To meet her burden of proving that she was constructively discharged as result of sexual
harassment to which she was subjected, Title VII plaintiff was required to show, by
preponderance of credible evidence, that she was forced to quit due to gender-based
intolerable working conditions. Winsor v Hinckley Dodge (1996, CA10 Utah) 79 F3d
996, 70 BNA FEP Cas 611.
To assert claim under Title VII, plaintiffs must show that they have been victim of
discrimination directed either toward them or toward protected class of which they are
members; thus, male employee could not state cause of action for sexually hostile work
environment based upon sexual harassment of women who worked with him. Ramirez v
Bravo's Holding Co. (1995, DC Kan) 67 BNA FEP Cas 733.
To recover in constructive discharge case, Title VII plaintiff must claim more than mere
disappointment with his or her job. Hodges v Stone Savannah River Pulp & Paper Corp.
(1995, SD Ga) 67 BNA FEP Cas 1298.
Finding of constructive discharge in contravention of Title VII requires proof that
employer made employee's working conditions intolerable and drove employee to resign
involuntarily; to satisfy this standard, there must be proof of aggravating factors.
Nelson-Cole v Borg-Warner Sec. Corp. (1995, DC Dist Col) 881 F Supp 71, 67 BNA
FEP Cas 1213.
To establish elements of sexual harassment claim based on hostile environment, Title VII
plaintiff must show that she belongs to protected group, she was subject to unwelcome
sexual harassment, harassment was based on sex, harassment affected term, condition or
privilege of employment, and employer knew or should have known of harassment and
failed to take proper remedial action. Kopp v Samaritan Health Sys. (1993, CA8 Iowa) 13
F3d 264, 63 BNA FEP Cas 880, 63 CCH EPD 42745, reh den (CA8 Iowa) 1994 US
App LEXIS 1094.
In order to constitute hostile work environment for gender discrimination claim under
Title VII, discriminatory conduct complained of must be sufficiently severe or pervasive
to create work environment abusive to employees because of their gender. Herman v
Western Fin. Corp. (1994) 254 Kan 870, 869 P2d 696, 64 BNA FEP Cas 351.
Trial court in sexual harassment action under state civil rights law erred in dismissing
plaintiff's hostile work environment claim where the plaintiff could establish that the
complained of conduct was severe or pervasive enough to make reasonable man or
woman believe that conditions of employment are altered and working environment is
hostile or abusive. Lehmann v Toys 'R' Us (1993) 132 NJ 587, 626 A2d 445, 63 BNA
FEP Cas 241.
Conduct need not be explicitly sexual or racial in nature to constitute unlawful
harassment; any disadvantageous treatment of employee which would not occur but for
employee's race or gender may, if sufficiently pervasive, constitute unlawful harassment
in violation of Title VII. Campbell v Florida Steel Corp. (1996, Tenn) 919 SW2d 26, 70
Trial court erred in granting summary judgment motion of defendant former employer in
state-law action for sexual harassment and other claims, where plaintiff's allegations and
proof raised triable issues whether hostile environment arising from sexual harassment of
plaintiff by former co-worker, who was promptly fired after plaintiff left work and
complained, continued in form of resentment from co-worker's friends after plaintiff was
reinstated. Ewald v Wornick Family Foods Corp. (1994, Tex App Corpus Christi) 878
SW2d 653, writ den (Dec 8, 1994).
Black corrections officer stated 42 USCS 1983 equal protection claim based on hostile
work environment, where he alleged that co-workers intentionally jeopardized his ability
to perform his job, leveled false charges against him, put him in physical danger by
refusing to send back-up assistance when needed, and humiliated him in front of
prisoners. Jemmott v Coughlin (1996, CA2 NY) 85 F3d 61, 70 BNA FEP Cas 1745.
Footnotes
EPD 33639; Andrews v Philadelphia (1990, CA3) 895 F2d 1469, 52 CCH EPD 39635.
Footnote 37. 953.
Footnote 38. 968.
Footnote 39. 969.
Footnote 40. 971.
Footnote 41. Haehn v Hoisington (1988, DC Kan) 702 F Supp 1526.
Footnote 42. Andrews v Philadelphia (1990, CA3) 895 F2d 1469, 54 BNA FEP Cas 184,
5 BNA IER Cas 1471, 52 CCH EPD 39635.
Footnote 43. Swanson v Elmhurst Chrysler Plymouth, Inc. (1989, CA7) 882 F2d 1235,
50 BNA FEP Cas 1082, 51 CCH EPD 39251, cert den 493 US 1036, 107 L Ed 2d 774,
955 Interaction of different harassment claims

View Entire Section
There are various ways in which harassment claims may interact with one another in a
single controversy. For example, one employee's harassment claim may be used to
support another employee's claim, such as when incidents of sexual harassment directed
at employees other than the plaintiff were admissible to prove "hostile work
environment" harassment 44 against the plaintiff, since one of the critical inquiries in
such claims is the atmosphere of the working environment. 45 Similarly, an employee
who alleged that she was denied a promotion for refusing a supervisor's advances in a
"tangible job benefit" harassment 46 claim, could use the fact that another female
employee who succumbed to her supervisor's sexual overtures received larger pay
increases than she did, in demonstrating her claim. 47
Furthermore, more than one type of discrimination 48 may be involved in a harassment
claim, and proof of racial hostility may be aggregated with proof of sexual hostility to
show a "hostile work environment." Thus, while the evidence showed that the employer
did not maintain a work environment openly hostile to blacks, it could still be considered
for its combined effect on a sexual harassment claim. 49
There may also be interaction among the two separate types of unlawful harassment 50
in a single claim, with the proof of one type affecting the proof of the other. For instance,
where an intimidating, hostile, and offensive work environment caused an employee
physical and psychological consequences that resulted in some absences, denying the
employee the job benefit of a pay increase on the basis of those absences was
impermissible. 51
Footnotes
Footnote 44. 954.
Footnote 45. Second CircuitLehtinen v Bill Communications, Inc. (1989, SD NY) 49
CCH EPD 38920.
Eighth CircuitHall v Gus Constr. Co. (1988, CA8) 842 F2d 1010, 46 BNA FEP Cas
573, 46 CCH EPD 37905.
Tenth CircuitHicks v Gates Rubber Co. (1987, CA10) 833 F2d 1406, 45 BNA FEP
Cas 608, 44 CCH EPD 37542.
Eleventh CircuitRobinson v Jacksonville Shipyards, Inc. (1991, MD Fla) 760 F Supp
Footnote 46. 953.
Footnote 48. 956.
Footnote 49. Hicks v Gates Rubber Co. (1987, CA10) 833 F2d 1406, 45 BNA FEP Cas
608, 44 CCH EPD 37542.
Footnote 50. 952.
Footnote 51. Shrout v Black Clawson Co. (1988, SD Ohio) 689 F Supp 774, 46 BNA
956 Differences in proving harassment based on type of discrimination

View Entire Section
There is some controversy over whether the same standards of proof apply to harassment
premised on different types of discrimination. The EEOC has issued regulations
specifically dealing with sexual 52 and national origin 53 harassment. The principles
enunciated in the EEOC's sexual harassment guidelines are also specifically made
applicable by the Commission to harassment based on race, color, religion, and national
origin. 54
Observation: Given the EEOC's position, any endorsement or criticism of these

guidelines by the courts may affect the enforcement of Title VII with respect to other
forms of harassment other than sex. Presumably, reservations as to the efficacy of
particular portions of the sex harassment guidelines will also apply when the same
courts consider harassment claims based on race, religion, or national origin.
Observation: For symmetry of analysis it is also conceivable that the same

principles would be applied to instances of age harassment, although the EEOC's
harassment guidelines under Title VII have no legal effect under the ADEA.
While the Eleventh Circuit agrees with the EEOC's position that the same proof
requirements apply when evaluating "hostile work environment" 55 sexual and racial
harassment claims, 56 the Sixth Circuit contends that the requirements applied under
Title VII need not be identical for such claims, since analogous rights based on sex and
race are not treated identically under the U.S. Constitution's equal protection clause. It
therefore concluded that only the objective "reasonable person" evaluation was
appropriate when evaluating the "severity" 57 of a racial harassment claim, although the
subjective view of the victim could be considered in sexual harassment situations. 58
Observation: Not all aspects of EEOC's sexual harassment guidelines will apply to
other types of harassment claims. For example, it would be inappropriate to require a
race claimant to show that an unwelcome sexual behavior occurred if the claim is not
related to that type of harassment.
Footnotes
Footnote 52. 29 CFR 1604.11, discussed at 960.
Footnote 54. 29 CFR 1604.11(a), n.1.
Footnote 55. 954.
CCH EPD 32993.
Footnote 57. 969.
Footnote 58. Davis v Monsanto Chemical Co. (1988, CA6) 858 F2d 345, 47 BNA FEP
BNA FEP Cas 96.
957 When proof of harassment demonstrates discriminatory intent in other

claims
View Entire Section

When either type of unlawful harassment is established, 59 it may assist a plaintiff in
proving an employer's intent to discriminate with respect to other aspects of employment
if there is a logical connection between the claims, unless the employer articulates an
independent and legitimate nondiscriminatory reason for taking the other actions at issue.
60
A connection may be established by showing that the same personnel were responsible
for both the harassment and the other employment decision. For instance, evidence that
the same individuals who harassed the claimant had also participated in the decision to
deny her a promotion raised an inference of promotion discrimination. 61 A
demonstration of sexual harassment 62 also supported a finding of other forms of
intentional sexual discrimination where:
proof of unwelcome sexual advances helped establish intentional pay discrimination; 63
a coworker's abusive verbal and written comments helped establish promotion and
termination discrimination claims; 64
evidence of a highly sexually hostile environment supported a claim of intentional
discrimination in the provision of sales and support services, since only those female
sales representatives who endured or pretended to condone such treatment could ever
have enough influence with male sales representatives in order to be entitled to a desk or
cubicle. 65
Either of the two types of sexual harassment claims may also form the underlying basis
for a separate claim of "constructive discharge" 66 if the harassment demonstrates the
intolerability of an employee's working conditions. For example, a claimant who
resigned because her supervisor's actions created a sexually hostile work environment
was "constructively discharged." 67 The EEOC takes the position that if constructive
discharge is proven in a hostile environment case, the claim becomes a "tangible job
benefit" harassment claim because of the termination. 68 However, there must be a
demonstration of harassment to show a "constructive discharge," and the discharge claim
will fail if the alleged harassment did not sufficiently offend or intimidate 69 the
claimant. 70 An employee could not establish that she suffered intolerable harassment
that caused her to quit, thus creating a constructive discharge, when her resignation letter
contradictorily said that she had "pleasant memories" of her employment and attributed
her departure to "familial obligations." 71
Evidence of harassment may also support a retaliation claim. 72 For example, an
employee proved a retaliatory demotion because she complained to her employer about
unlawful sexual harassment that the employer had not taken proper steps to end, 73
since she had a work record almost completely free of performance problems prior to her
demotion. 74
Observation: While harassment may also be the basis of a "constructive discharge,"

claim or an aspect of retaliation, it is important to distinguish the proof necessary to
establish harassment from the separate and distinct proof requirements for showing
either constructive discharge or retaliation.
Footnotes
EPD 33639.
Footnote 61. Waltman v International Paper Co. (1989, CA5) 875 F2d 468, 50 BNA FEP
Cas 179, 50 CCH EPD 39106.
Footnote 62. 960.
Footnote 63. Dacus v Southern College of Optometry (1979, WD Tenn) 476 F Supp 639,
22 BNA FEP Cas 963, affd, remanded on other grounds (CA6) 657 F2d 81, 26 BNA FEP
CCH EPD 31796, vacated, in part, on other grounds (DC NJ) 473 F Supp 786, 25 BNA
Footnote 65. Crissman v Healthco Int'l, Inc. (1992, ND Ill) 1992 US Dist LEXIS 3233.
Footnote 67. Coley v Consolidated Rail Corp. (1982, ED Mich) 561 F Supp 645, 34 BNA
FEP Cas 129.
Footnote 69. 969.
CCH EPD 32993.
Footnote 71. Patterson v Brauner Baron Rosenzweig Kligler Sparber Bauman & Klein
(1991, SD NY) 1991 US Dist LEXIS 8351, affd without op (CA2) 956 F2d 1160.
Footnote 73. 981.
Footnote 74. Harrison v Reed Rubber Co. (1985, ED Mo) 603 F Supp 1457, 37 BNA
FEP Cas1545, 37 CCH EPD 35375.
958 When does harassment excuse the victim's undesirable conduct

View Entire Section

Go to Supplement
Proof of harassment may be used by the victim in attempting to excuse his undesirable
conduct that would normally form the legitimate basis for a disciplinary or discharge
action against him. For instance, it was unlawful to discharge an employee for attacking
a supervisor who provoked the attack with 18 months of racial harassment and
intimidation, since the employer was notified of the harassment and failed to take any
action prior to the attack. 75 Therefore, the employee's conduct was based on excusable
provocation. 76 However, discharging an employee for attacking a coemployee who
uttered a racial slur is not excusable provocation if there was insufficient proof that the
employer knew or should have known of the harassment prior to the attack, 77 and the
violent response is out of proportion to the provocation. 78
Employee work inadequacies may also be justified by having suffered prior harassment
and by an employer's inadequate response to harassment. For instance, Title VII is
violated where an employee is discharged because of absenteeism and he can show that:
(1) his absences were motivated by a reasonable fear for his personal safety due to racial
harassment by coworkers, and were taken in reasonable proportion to the threats; (2) he
communicated his fears to the employer and expressed a willingness to cooperate in
correcting the situation; and (3) the employer failed to take appropriate remedial
measures. 79 A discharge based on an "inability to get along with others" violated Title
VII when supervisors were aware of racial disharmony and terminated a black employee
rather than investigate it. 80 A termination for poor work performance was also illegal
when performance was affected by the physical stress disorders the victim suffered as a
result of religious harassment and retaliation by his supervisor, when the employer failed
to take corrective action against the supervisor, or to grant the employee's request for a
transfer to another work area. 81 Likewise, an employer unlawfully demoted an
employee whose work performance was good until she suffered sexual harassment on the
job, since it failed to consider the effect of the harassment on her performance. 82
However, work inadequacies will not be excused due to harassment if there is an
insufficient connection between the harassment and performance. For instance, despite a
supervisor's religious verbal harassment of a Jewish employee, the employee's failure to
follow reporting-off rules was a valid, separate, and independently legitimate basis for his
discharge. 83
958 ----When does harassment excuse the victim's undesirable conduct
[SUPPLEMENT]
Case authorities:
Pervasive use of derogatory and insulting terms to women generally, and addressed to
female employees personally, and posting of pornographic pictures in common areas and
Title VII plaintiffs' work spaces, may serve as evidence of hostile environment, because
they can be highly offensive to women who seek to deal with their fellow employees with
professionalism and without barrier of sexual differentiation and abuse. Stair v Lehigh
Valley Carpenters Local Union No. 600 (1993, ED Pa) 66 BNA FEP Cas 1473, 62 CCH
EPD 42602.
Footnotes
Footnote 75. 981.
Footnote 77. 976.
Footnote 78. Higgins v Gates Rubber Co. (1978, CA10) 578 F2d 281, 17 BNA FEP Cas
1077, 17 CCH EPD 8378.
Footnote 79. De Grace v Rumsfeld (1980, CA1) 614 F2d 796, 21 BNA FEP Cas 1444, 22
CCH EPD 30621.
Footnote 80. Anderson v Methodist-Evangelical Hospital (1971, WD Ky) 4 BNA FEP
Cas 33, 3 CCH EPD 8282, affd (CA6) 464 F2d 723, 4 BNA FEP Cas 987, 4 CCH EPD
7901.
Footnote 81. Weiss v U.S. (1984, ED Va) 595 F Supp 1050, 36 BNA FEP Cas 1, 36 CCH
EPD 34947.
FEP Cas 1545, 37 CCH EPD 35375.
Footnote 83. Compston v Borden, Inc. (1976, SD Ohio) 424 F Supp 157, 17 BNA FEP
Cas 310.
959 Permissible monetary relief for "hostile work environment" harassment

View Entire Section
Under the Civil Rights Act of 1991, compensatory and punitive damages and attorney's
fees and costs 84 may be awarded in Title VII cases of intentional discrimination,
including sex or religious discrimination cases for which there is no backpay liability
because the victim remains on the job. 85
Observation: Victims of a hostile work environment racial harassment can also sue
for compensatory or punitive damages under 42 USCS 1981, which guarantees the
right to be free from harassment in all aspects of the employment relationship.
Except in the Eleventh Circuit, 86 victims of a sexually hostile work environment who
remained employed and suffered no loss of pay were usually denied any monetary
remedy, including attorney's fees, before enactment of the Civil Rights Act of 1991. 87
To recover damages in a hostile work environment case, plaintiffs must demonstrate a
causal connection between the harassment and the injuries sustained. Thus, a victim of
sexual harassment in violation of 42 USCS 1983 was denied damages for emotional
distress and humiliation that a psychiatrist testified occurred six months after the
harassment and were not directly caused by it. 88
Footnotes
Footnote 84. As to attorney's fees and costs generally, see 3023 et seq.
Footnote 86. Huddleston v Roger Dean Chevrolet, Inc. (1988, CA11) 845 F2d 900, 46
Footnote 87. Beasley v Health Care Service Corp. (1991, CA4) 940 F2d 1085, 56 BNA
FEP Cas 1047, 57 CCH EPD 40950; Swanson v Elmhurst Chrysler Plymouth, Inc.
(1989, CA7) 882 F2d 1235, 50 BNA FEP Cas 1082, 51 CCH EPD 39251, cert den 493
US 1036, 110 S Ct 758, 107 L Ed 2d 774, 51 BNA FEP Cas 1224, 52 CCH EPD
39540.
Footnote 88. Ward v Cheltenham Township (1991, ED Pa) 1991 US Dist LEXIS 5982.
(b). Elements of Sexual Harassment [960-963]
960 EEOC's definition of sexual harassment

View Entire Section
Go to Supplement
Besides the requirements for demonstrating the two types of harassment, 89 the EEOC
defines sexual harassment to include unwelcome 90 sexual advances, requests for
sexual favors, 91 and other verbal or physical conduct 92 of a sexual nature. 93
Caution: The mere existence of conduct described in the guidelines does not
automatically make the employer responsible for either type of sexual harassment
unless the employer has not fulfilled its obligations to prevent or respond to
harassment, 94 and unless such conduct, if committed by others, can be attributed to
the employer's responsibility. 95
Although the EEOC's sexual harassment guidelines are "entitled to great deference" by
the courts, 96 they are under-inclusive in requiring that conduct be "of a sexual nature"
before it constitutes sexual harassment under Title VII. Any unequal treatment of an
employee that would not occur, but for an employee's sex, if sufficiently severe and
pervasive, may constitute sexual harassment. Therefore, a female employee's claim that
her male supervisor's forcible restraint, which consisted of grabbing and twisting her arm,
constituted unlawful sexual harassment despite its lack of sexual overtones. 97
State aspects: Sex discrimination in employment is prohibited by various state

statutes. State courts have discussed the application of state civil rights law to a claim
of sexual harassment of an employee by his or her supervisor or co-workers. 98
960 ----EEOC's definition of sexual harassment [SUPPLEMENT]
Practice Aids: Cases drawing the line on same-sex harassing: Critics; Maryland, other
rulings diverge from law, 17 National LJ 24:A9 (1995).
Case authorities:
For purposes of 42 USCS 1983 action, protection afforded by equal protection clause
against invidious gender discrimination does not extend to acts of harassment by persons
who are of same gender as victim. McWilliams v Fairfax County Bd. of Supervisors
(1996, CA4 Va) 72 F3d 1191, 69 BNA FEP Cas 1082, 67 CCH EPD 43835.
For purposes of 42 USCS 1983 action, protection afforded by equal protection clause
against invidious gender discrimination does not extend to acts of harassment by persons
who are of same gender as victim. McWilliams v Fairfax County Bd. of Supervisors
(1996, CA4 Va) 72 F3d 1191, 69 BNA FEP Cas 1082, 67 CCH EPD 43835.
Hostile environment sexual harassment claim does not lie where both alleged harassers
and victim are heterosexuals of same sex. McWilliams v Fairfax County Bd. of
Supervisors (1996, CA4 Va) 72 F3d 1191, 69 BNA FEP Cas 1082, 67 CCH EPD
43835.
Hostile environment sexual harassment claim does not lie where both alleged harassers
and victim are heterosexuals of same sex. McWilliams v Fairfax County Bd. of
Supervisors (1996, CA4 Va) 72 F3d 1191, 69 BNA FEP Cas 1082, 67 CCH EPD
43835.
Same sex sexual harassment is not actionable under Title VII. Benekritis v Johnson
(1995, DC SC) 882 F Supp 521, 67 BNA FEP Cas 1449.
Same gender sexual harassment is actionable under Title VII, because to deny such claim
would allow homosexual supervisor to sexually harass his or her subordinates. Pritchett v
Sizeler Real Estate Management Co. (1995, ED La) 67 BNA FEP Cas 1377.
Title VII was intended to apply to claims of harassment based on sex, without regard to
gender of complainant or harassing party. Polly v Houston Lighting & Power Co. (1993,
SD Tex) 825 F Supp 135, 62 BNA FEP Cas 633, summary judgment gr, cause dismd (SD
Tex) 1993 US Dist LEXIS 11099.
Present and former female law enforcement officers may proceed with
continuing-violation theory to allow claims of sexual harassment to be added to timely

filed 1983 claims for more traditional forms of employment discrimination, because
some evidence indicates that incidents of sexual harassment were result of hostile
environment created by city's failure to remedy harassment of which they should have
been, or were, aware. Barcume v City of Flint (1993, ED Mich) 819 F Supp 631, 62 CCH
EPD 4t42544.
Same sex sexual harassment is actionable under Title VII, because when homosexual
supervisor is making offensive sexual advances to subordinate of same sex, and not doing
so to employees of opposite sex, such is situation where, but for subordinate's sex, he
would not be subject to such treatment. EEOC v Walden Book Co. (1995, MD Tenn) 885
If victim of sexual harassment (which is often cumulative process rather than one-time
event) sues as soon as harassment becomes sufficiently palpable that reasonable person
would realize she had substantial claim under Title VII, then she sues in time and can
allege as unlawful conduct entire course of conduct that in its cumulative effect has made
her working conditions unbearable. Galloway v GM Serv. Parts Operations (1996, CA7
Ill) 78 F3d 1164, 70 BNA FEP Cas 341, 67 CCH EPD 43966, reh, en banc, den (1996,
CA7 Ill) 1996 US App LEXIS 6388.
Title VII complaint which alleged that work environment was saturated with homosexual
references failed to state cause of action for hostile work environment sexual harassment,
because homosexual aspect of environment was irrelevant, after homosexual aspect was
removed, all that remained was sexually charged atmosphere, and such atmosphere,
although possibly hostile, abusive or oppressive, was not discriminatory. Fox v Sierra
Dev. Co. (1995, DC Nev) 66 BNA FEP Cas 1775.
Allegation of sexual harassment is actionable under 42 USCS 1983 as violation of
Equal Protection Clause. Noland v McAdoo (1994, CA10 Okla) 39 F3d 269, 66 BNA
FEP Cas 221.
Claim of quid pro quo sexual harassment is cognizable even if harasser does not
expressly inform plaintiff that adverse employment consequences will flow from
plaintiff's refusal to submit to harasser's advances (otherwise, plaintiff would have to
come forward with direct evidence to support claim), because there is rarely direct
evidence that employer's motive was discriminatory, and plaintiff may prove by either
direct or indirect evidence discrimination claim that takes form of sexual harassment.
Huitt v Market Street Hotel Corp. (1993, DC Kan) 62 BNA FEP Cas 538.
Recognition by court of appeals that Title VII does not preclude all cases involving
sexual harassment in which supervisor harasses member of same gender, and
nonrecognition of Title VII cause of action for sexual harassment when supervisor is
bisexual, could lead to bizarre, as well as anomalous results; defendant could avoid Title
VII liability for sexual harassment by claiming to be bisexual or by harassing members of
both sexes. Ryczek v Guest Servs. (1995, DC Dist Col) 877 F Supp 754, 67 BNA FEP
Cas 461, 66 CCH EPD 43544.
Female employee failed to establish claim of sexual harassment arising from workplace
circulation of cartoon, drawn by coworker, depicting plaintiff and male coworker
engaged in sexual act, where cartoon, being potentially offensive to both people thus
depicted and to both male and female employees, was sex-neutral and thus not actionable
under state civil-rights statute as harassment. Linebaugh v Sheraton Mich. Corp. (1993)
198 Mich App 335, 497 NW2d 585, 61 BNA FEP Cas 1093.
Term "sex" as used in 42 USCS 2000e-2 is not synonymous with term "gender;" sex
refers to individual's distinguishing biological or anatomical characteristics, whereas
gender refers to individual's sexual identity. Dobre v National R.R. Passenger Corp.
(1993, ED Pa) 2 AD Cas 1567, 63 BNA FEP Cas 923, 63 CCH EPD 42735.
Footnotes
Footnote 90. 971.
Footnote 91. 961.
Footnote 92. 962.
Footnote 93. 29 CFR 1604.11(a).
Annotation: On-the-job sexual harassment as violation of state civil rights law, 18
ALR4th 328.
Sexual advances by employee's superior as sex discrimination within Title VII of Civil
Rights Act of 1964, as amended (42 USCS secs. 2000e et seq.), 46 ALR Fed 224.
employmentAllegationSexual harrassment. 5A Am Jur Pl & Pr Forms (Rev), Civil
Rights, Form 114.
Law Reviews: Jennings; Clapp, A Managerial Tightrope: Balancing Harassed and
Harassing Employees' Rights in Sexual Discrimination Cases. 40 Lab. L.J. 756 (1989).
Footnote 96. Simmons v Lyons (1984, CA5) 746 F2d 265, 36 BNA FEP Cas 410, 35
CCH EPD 34769.
Footnote 97. McKinney v Dole (1985) 246 App DC 376, 765 F2d 1129, 38 BNA FEP
Cas 364, 37 CCH EPD 35339.
Footnote 98.
Annotation: On-the-job sexual harassment as violation of state civil rights law, 18
ALR4th 328.
961 Restrictions on sexual advances and favors

View Entire Section

Go to Supplement
Under EEOC's definition of sexual harassment, 99 unwelcome 1 sexual advances and
requests for sexual favors can form the basis of a sexual harassment claim. However, the
guidelines do not define these terms. 2
Caution: The guidelines do not distinguish between sexual advances made in or

outside of the office or advances made at social or business occasions. The location
and circumstances of the sexual advance are merely relevant factors in the total context
3 within which the legality of the advance is examined under the guidelines.
An unwelcome sexual advance or request for sexual favors may not only be the basis for
a claim of "hostile work environment" sexual harassment, but may also be connected to
"tangible job benefit" harassment. For instance, a female plaintiff stated a valid claim for
sexual harassment by asserting that after she refused a dinner invitation from a male
superior, he withheld his approval for her promotion until she accepted a future dinner
invitation. 4 Likewise, a female employee raised a claim of sexual harassment by stating
that a sheriff-elect's actions in driving her to a "deserted road" and then suggesting to her
that her mother's job with the incumbent sheriff was "safe," and that he and the employee
could "see each other," because the remarks could have sexual overtones under those
circumstances. 5
While all types of harassment, including sexual harassment, must be based on different
treatment, 6 such as different treatment of one sex, the sex of the person charged with
making a sexual advance or request for sexual favors does not have to be different from
that of the plaintiff in order to establish a case of sexual harassment under Title VII.
Thus, a male supervisor whose advances form an additional condition of employment for
only male subordinates has committed sexual harassment against males. 7
State aspects: Some state job discrimination laws also specifically prohibit
discrimination, including harassment, based on sexual preference or orientation. 8
961 ----Restrictions on sexual advances and favors [SUPPLEMENT]
Case authorities:
Title VII is applicable to cases of alleged same-sex sexual harassment. Boyd v
Vonnahmen (1995, SD Ill) 67 BNA FEP Cas 1769.
Homosexual sexual harassment is actionable under Title VII. Prescott v Independent Life
& Accident Ins. Co. (1995, MD Ala) 878 F Supp 1545, 67 BNA FEP Cas 876.
For purposes of quid pro quo sexual harassment, gender of person who requests sexual
favors is not relevant. Prescott v Independent Life & Accident Ins. Co. (1995, MD Ala)
878 F Supp 1545, 67 BNA FEP Cas 876.
Sex-based offensive behavior in workplace is not immune from remedy simply because it
may be culturally tolerated outside of workplace. King v Hillen (1994, CA FC) 64 BNA
FEP Cas 754.
Trial court erred in sustaining demurrer to complaint alleging quid pro quo and
hostile-environment sexual harassment under state statutes, filed by male subordinate
against male supervisor, since statute proscribes same-sex harassment as well as
opposite-sex harassment. Mogilefsky v Superior Court (1993, 2nd Dist) 20 Cal App 4th
1409, 26 Cal Rptr 2d 116, 93 CDOS 9165, 93 Daily Journal DAR 15679, 63 CCH EPD
42746.
Trial court erred in granting summary judgment motion of defendant employer in action
by female employee claiming assault and battery, sexual harassment, and intentional
infliction of emotional distress, where plaintiff's pleadings and affidavits clearly
presented triable issues of fact whether supervisor had repeatedly and unwelcomely
touched and kissed plaintiff, and attempted to force her to have sex with him. Wilson v
Parisi (1993, App Div) 268 NJ Super 213, 633 A2d 113.
Footnotes
Footnote 99. 960.
Footnote 1. 971.
Footnote 3. 952.
Footnote 4. Blessing v County of Lancaster (1985, ED Pa) 609 F Supp 485, 37 BNA FEP
Cas 1721, 39 CCH EPD 35879.
Footnote 5. Simmons v Lyons (1984, CA5) 746 F2d 265, 36 BNA FEP Cas 410, 35 CCH
EPD 34769.
Footnote 6. 952.
Footnote 7. Wright v Methodist Youth Services, Inc. (1981, ND Ill) 511 F Supp 307, 25
Footnote 8. State job discrimination laws prohibiting discrimination on the basis of
sexual preference or orientation are noted in the Employment Coordinator at EP-10,601
et seq.
962 What other verbal or physical conduct constitutes sexual harassment

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Go to Supplement
Under EEOC's definition of sexual harassment, 9 harassment charges may only be based
on verbal or physical conduct "of a sexual nature." While the EEOC has stated that
sexual harassment is not sex discrimination because of the sexual nature of the conduct,
but because the harasser treats members of one sex differently, it also has said that it is
the sexual nature of the conduct which makes this form of sex discrimination sexual
harassment. 10
However, the EEOC has also recognized that verbal conduct which is not sexual in
nature may still constitute sex discrimination in violation of Title VII, if it is only
directed toward members of one sex. 11
While sexually harassing conduct does not have to be sexual in nature for disparate
treatment 12 to occur, such conduct may be more identifiable as sexual disparate
treatment. For example, an employer could not validly defend a harassment charge
involving sexual conduct by coworkers against a female employee by claiming that a
comparable male employee would have suffered equally brutal harassment in a different
form. The "sexually offensive conduct and language used would have been almost
irrelevant and would have failed entirely in its crude purpose had the plaintiff been a
man." 13 Likewise, an employer could not defend a hostile work environment
harassment charge by claiming that males as well as females were offended by sexual
horseplay, so it did not constitute sex discrimination, because the nature of the conduct
clearly indicated that it was directed entirely toward one sex by a male supervisor. 14
Conduct that is not "sexual in nature" may constitute sexual harassment, when the
conduct complained of would not have occurred except for the gender of the victim. 15
Since Title VII does not prohibit discrimination based on sexual preference or lifestyle
under its sex discrimination ban, 16 a district court has found that the harassment and
physical abuse that an employee suffered from his coworkers because of his homosexual
relationships did not constitute sexual harassment under the statute. The court
distinguished a case finding that sexual harassment did not depend on showing that the
sex of the victim and harasser were different, 17 by stating that that case involved
"tangible job benefit" harassment 18 while the instant case concerned "hostile work
environment" harassment. 19 The Sixth Circuit, agreeing with Carreno and noting that
the right to a work environment free of harassment is not absolute, has held that
harassment based on homosexuality is not prohibited by Title VII. 20
962 ----What other verbal or physical conduct constitutes sexual harassment
[SUPPLEMENT]
Case authorities:
Quid pro quo sexual harassment claim is not limited to only those cases where employer
makes explicit sexual overtures towards plaintiff; crucial point of quid pro quo case is
exchange of job benefits for toleration of sexual harassment. Bridges v Eastman Kodak
Co. (1995, SD NY) 66 BNA FEP Cas 1688.
Former borough tax collector may pursue 1983 claims against borough council
president and police chief, where gist of claims is that president sexually harassed and
stalked her and that chief laughed at her complaints about it, because disorganized
complaint nevertheless suffices to state claim for deprivation of rights to equal protection
and due process. Palace v Deaver (1993, ED Pa) 838 F Supp 1016, motion den (ED Pa)
1994 US Dist LEXIS 2102.
Although people, both male and female, can be offended by dirty words, employers are
not under legal duty enforceable by Title VII suits to purify language of workplace;
however, there are gradations, and some words can cross line that separates merely
vulgar and mildly offensive from deeply offensive and sexually harassing. Carr v Allison
Gas Turbine Div., Gen. Motors Corp. (1994, CA7 Ind) 65 BNA FEP Cas 688.
Employer is not entitled to judgment as matter of law after jury verdict in favor of
employee in sexual harassment action, where (1) employee testified that employer's
conduct and comments were humiliating, degrading, and embarrassing, and (2)
employer's expert testified that employee perceived she was being mistreated and that
given employee's psychological makeup she likely experienced daily pain at work,
because employee established damages. Sassaman v Heart City Toyota (1994, ND Ind)
879 F Supp 901, 66 BNA FEP Cas 1230.
District court's sua sponte grant of summary judgment on 42 USCS 1983 sexual
harassment claim at completion of Title VII bench trial was not harmless error, where
court found that sex-based harassment was insufficiently severe and pervasive to
constitute sexual harassment under Title VII, but where jury in 1983 claim could have
reasonably inferred from evidence that underlying investigation of employee's sexual
harassment complaints was performed in sexually- biased fashion. Fuller v City of
Oakland (1995, CA9 Cal) 47 F3d 1522, 95 CDOS 1107, 67 BNA FEP Cas 153, 65 CCH
EPD 43431, amd (1995, CA9 Cal) 95 CDOS 2989 and reprinted as amd (1995, CA9
Cal) 95 Daily Journal DAR 5152.
Appellant's misconduct constituted sexual harassment because it involved repeated,
deliberate, unsolicited and unwelcome sexual advances and requests for sexual favors,
caused witness distress, and, since appellant was at time witness's supervisor, altered
conditions of witness's employment and created abusive working environment. Lowe v
Department of Justice (1994, MSPB) 63 MSPR 73.
Appellant's repeated, uninvited visits to complainant's neighborhood, where he lurked
and peered into her window, in conjunction with his discussion of his relationship with
complainant both to fellow workers and complainant, constituted sexual harassment.
Biddle v Department of the Treasury (1994, MSPB) 63 MSPR 521.
Former employee who alleged that, shortly after she was hired, her former employer
subjected her to continuing course of sexual harassment and abuse from January 1989
through August 1990 in form of "unwelcome" sexual advances and comments and
physical contact, that such physical contact consisted of her immediate supervisor's
rubbing his hands and body against her shoulders, back and buttocks, that defendants
"deliberately created, maintained and permitted" harassment knowing it would force her
to resign and that she ultimately did so, stated cause of action against employer and
supervisor for intentional infliction of emotional distress. Employee pleaded facts that, if
true, were sufficient to show that defendants specifically intended to cause her severe
emotional distress where she alleged that defendants' conduct was "intentional and
voluntary" and that defendants "knew . . . their actions would cause her severe
physical, emotional and psychological distress and injury." McGanty v Staudenraus

(1993) 123 Or App 393, 859 P2d 1187.
Predicate acts which support hostile environment sexual harassment claim need not be
explicitly sexual in nature. Kopp v Samaritan Health Sys. (1993, CA8 Iowa) 13 F3d 264,
63 BNA FEP Cas 880, 63 CCH EPD 42745, reh den (CA8 Iowa) 1994 US App LEXIS
1094.
Former employee who had been sexually harassed by supervisor stated cause of action
for intentional infliction of emotional distress where (1) there was evidence that
supervisor repeatedly harassed and demeaned plaintiff because of her sex, and that he
harassed her both verbally and physically, (2) jury could have found that conduct was
outrageous and intended to cause emotional distress, and (3) jury could have found that
harassment was characteristic of supervisor's method of controlling and supervising
female subordinates, and that defendant employer condoned such practices. Mains v II
Morrow, Inc. (1994) 128 Or App 625, 877 P2d 88.
Footnotes
Footnote 9. 960.
Footnote 11. EEOC Compliance Manual 615.6(a)(1).
Footnote 12. 952.
Footnote 13. Zabkowicz v West Bend Co. (1984, ED Wis) 589 F Supp 780, 35 BNA FEP
Cas 610, 35 CCH EPD 34766.
Footnote 14. Spencer v General Electric Co. (1988, ED Va) 697 F Supp 204, 51 BNA
FEP Cas 1696, affd (CA4) 894 F2d 651, 51 BNA FEP Cas 1725, 5 BNA IER Cas 241, 52
CCH EPD 39583.
Footnote 15. Second CircuitTunis v Corning Glass Works (1990, SD NY) 747 F Supp
Seventh CircuitSabounghi v General Electric Capital Auto Lease, Inc. (1991, ND Ill)
Tenth CircuitLaughinghouse v Risser (1990, DC Kan) 754 F Supp 836, 56 BNA FEP
Cas 71, 56 CCH EPD 40744.
Eleventh CircuitRobinson v Jacksonville Shipyards, Inc. (1991, MD Fla) 760 F Supp
Footnote 17. 961.
Footnote 18. 953.

Footnote 19. Carreno v Local Union No. 226, International Brotherhood of Electrical
Workers (1990, DC Kan) 54 BNA FEP Cas 81.
As to hostile work environment harassment, see 952.
Footnote 20. Dillon v Frank (1992, CA6) 58 CCH EPD 41332 (unpublished).
963 Legality of preferential sexual attention to one sex

View Entire Section
Go to Supplement
Sexual harassment claims may be brought by employees who are not directly subjected to
sexually harassing actions, but who claim to be adversely affected by the employer's
sexual attention of others.
When job opportunities or benefits 21 are granted to those who submit to sexual
advances or requests for sexual favors, 22 the EEOC finds that an employer may be
liable to other employees who were qualified for, but were denied, the job benefit at
issue. 23 Such "favoritism," if based on unwelcome 24 sexual conduct, will constitute
"tangible job benefit" harassment 25 if the persons who were qualified for, but were
denied the job benefit, establish that submission was made a condition for receiving job
benefits on a widespread basis. 26 However, one court has gone even further than the
EEOC by finding that when a supervisor propositioned female employees, described his
alleged sexual encounters with other employees, and engaged in sexually suggestive
behavior at work, a qualified female employee who was not asked for sexual favors was a
victim of sexual harassment when a promotion was given to a lesser qualified female
who had a consensual affair 27 with the supervisor. 28
Such "favoritism" can also form the basis for a "hostile work environment" claim 29 by
any employee who objects to such well established "favoritism." 30 Thus, a "tangible
job benefit" claim by female employees was based on conduct by management that
communicated to female employees that they could obtain job benefits only by
acquiescing in sexual conduct. Where it was common knowledge among employees that
several managers gave preferential treatment to those who submitted to their advances, a
sexually "hostile work environment" was created that adversely affected the motivation
and work performance of other employees who found the conduct offensive. 31
However, Title VII does not prohibit "isolated" instances of preferential treatment based
upon consensual romantic relationships, since both other women and men are
disadvantaged in that situation, so no sex discrimination exists. 32 Therefore, an
employer, who promoted a woman with whom he had a romantic relationship, did not
violate Title VII's sex discrimination ban with respect to male applicants. The men were
not prejudiced because of their status as males, but were in the same position as all other
applicants, including other female applicants, for the promotion. 33 Likewise, Title VII
has been held not to prohibit discrimination based on preferential treatment because of a
sexual affiliation. 34
963 ----Legality of preferential sexual attention to one sex [SUPPLEMENT]
Practice Aids: The dubious Title VII cause of action for sexual favoritism, 51 Wash &
Lee LR 547 (1994).
Case authorities:
Former male employee failed to state cause of action under Title VII, even though he
alleged specific physical acts and verbal assaults perpetrated against him by three male
coworkers, because same sex harassment does not state claim under Title VII. Oncale v
Sundowner Offshore Servs. (1995, ED La) 67 BNA FEP Cas 769.
Footnotes
Footnote 21. 953.
Footnote 22. 961.
Footnote 23. 29 CFR 1604.11(g).
Footnote 24. 971.
Footnote 25. 953.
Footnote 27. 972.
Footnote 28. Toscano v Nimmo (1983, DC Del) 570 F Supp 1197, 32 BNA FEP Cas
1401, 32 CCH EPD 33848.
Footnote 29. 954.
Footnote 31. Broderick v Ruder (1988, DC Dist Col) 685 F Supp 1269, 46 BNA FEP Cas
1272, 16 Media L R 1927, 46 CCH EPD 37963.
Footnote 33. De Cintio v Westchester County Medical Center (1986, CA2) 807 F2d 304,
Footnote 34. Miller v Aluminum Co. of America (1988, WD Pa) 679 F Supp 495, 45
35058, affd without op (CA3) 856 F2d 184, 52 BNA FEP Cas 1472; Parrish v English
American Tailoring Co. (1988, DC Md) 56 BNA FEP Cas 567.
(c). Common Law Harassment Claims [964-967]
964 What common law actions may be brought for workplace harassment
View Entire Section
To avoid more onerous statutory filing requirements, or to take advantage of broader
common law remedies, employees may attempt to assert unlawful harassment as the basis
of a claim under state common law contract and tort principles. For instance, sexual
harassment may form the basis of a state tort action, depending largely on the common
law requirements for the particular tort asserted, as developed by the state's courts. Thus,
in some states, intentional infliction of emotional distress suits based on sexual
harassment are permitted, as long as the employer's conduct is sufficiently "extreme,"
"outrageous," or "atrocious." 35 Not all allegations of sexual harassment will meet the
"extreme and outrageous" standard. Thus, simply demeaning remarks or "mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities," as well as verbal
propositioning, do not create a cause of action. However, where an employee was
subjected to a continuing course of harassment by supervisors, including sexual advances
and remarks, threats and intimidation for refusing to submit to the advances, and,
ultimately, retaliation in the form of alternately ignoring and mistreating her, she met the
requirements for that tort. 36
Other sexually harassed employees have been allowed to bring common law tort claims
based on intrusions on the right of privacy, assault and battery, 37 interference with an
employment contract, 38 and intentional and negligent misrepresentation. 39 However,
one court ruled that an employee threatened with loss of employment for refusing to
consent to requests for sexual favors 40 did not state a cause of action of "sexual
extortion," and thus refused to "create a new tort" in that circuit. 41
Not only sexual harassment, but also racial harassment may form a basis for common law
liability. For example, a white female who was harassed and terminated, allegedly
because of her relationship with and subsequent marriage to a black male, raised valid
tort claims for invasion of privacy, assault, intentional infliction of emotional distress,
and interference with a business relationship, as well as a breach of contract claim. 42
Observation: While most of the state tort claims discussed above involved sexual
harassment, Moffett (above) indicates that there is no reason to doubt that harassment
based on race, national origin, or religion could also form the basis of a valid state tort
claim under the appropriate circumstances.
Observation: Tactical considerations may control the selection of the type of

common law action the employee will assert. Tort damages normally will exceed
damages available for breach of contract. On the other hand, state statutes of
limitations for contract actions are often longer than are those either for tort actions or
statutory job discrimination suits.
Footnotes
Footnote 35. Rogers v Loews L'Enfant Plaza Hotel (1981, DC Dist Col) 526 F Supp 523,
29 BNA FEP Cas 828, 28 CCH EPD 32553; Shaffer v National Can Corp. (1983, ED
Pa) 565 F Supp 909, 34 BNA FEP Cas 172, 114 BNA LRRM 2941, 33 CCH EPD
34184.
Footnote 36. Shaffer v National Can Corp. (1983, ED Pa) 565 F Supp 909, 34 BNA FEP
Cas172, 114 BNA LRRM 2941, 33 CCH EPD 34184
29 BNA FEP Cas 828, 28 CCH EPD 32553; Pryor v U.S. Gypsum Co. (1984, WD Mo)
585 F Supp 311, 47 BNA FEP Cas 159, 3 BNA IER Cas 1242, 35 CCH EPD 34724.
Footnote 39. Fawcett v IDS Financial Services, Inc. (1986, WD Pa) 41 BNA FEP Cas
589.
Footnote 40. 961.
Footnote 41. Bouchet v National Urban League, Inc. (1984) 235 App DC 37, 730 F2d
Footnote 42. Moffett v Gene B. Glick Co. (1984, ND Ind) 604 F Supp 229, 41 BNA FEP
Cas 444, 35 CCH EPD 34830.
965 When common law harassment actions are barred by state workers'
compensation statutes
View Entire Section
Common law claims for injuries alleged to have resulted from sexual harassment during
the course of employment have sometimes been barred by a state workers' compensation
law that provides an exclusive remedy for employee injuries. However, this defense has
not proven successful where:
the alleged injuries in an assault and battery claim could not be held, as a matter of law,
to arise from the claimant's employment, although the alleged perpetrators were the
plaintiff's supervisors and employer, since the alleged assault and harassment were based
primarily on the claimant's sex and only incidentally on her employee status; 43
the alleged harassment consisted of repetitive behavior, which, therefore, was not
unexpected, random, or isolated conduct and, thus, not "accidental" within the meaning
of the workers' compensation statute. 44
On the other hand, a claim of assault and battery arising from sexual harassment on the
job was precluded by a state's workers' compensation law, since it was the exclusive
remedy for injuries that reasonably appear to flow from the conditions under which the
employee was required to work. The state in question followed a unitary, liberal
approach to its worker compensation statute, under which only a tenuous connection
between the injury and the work was required. 45 Also, a plaintiff's civil assault and
battery claim, based on sexual harassment continuing over an extended period of time,
was barred by the state workers' compensation law, but only against the employer. Thus,
a claim against an individual supervisor was not affected by the statute's exclusivity
provision. 46
Another view is that common law harassment claims are not barred by the exclusivity
provisions of a state workers' compensation law, because the policies behind the law are
not served by immunizing a coemployee who commits an intentional tort not related to
the employer's interests. 47
Footnotes
Footnote 43. Pryor v U.S. Gypsum Co. (1984, WD Mo) 585 F Supp 311, 47 BNA FEP
Footnote 44. Eddy v Wickes Corp. (1985, SD Ind) 38 CCH EPD 35787.
Footnote 45. Lui v Intercontinental Hotels Corp. (1986, DC Hawaii) 634 F Supp 684, 47
BNA FEP Cas 99, 3 BNA IER Cas 761, 40 CCH EPD 36279.
Footnote 46. Studstill v Borg Warner Leasing, Div. of Borg Warner Acceptance Corp.
Footnote 47. O'Connell v Chasdi (1987) 400 Mass 686, 511 NE2d 349, 50 BNA FEP Cas
574.
966 When common law harassment actions are barred by state FEP laws
View Entire Section
Where there is a possibility of overlapping state statutory and common law claims,
common law sexual harassment claims may be barred by state FEP laws prohibiting sex
harassment. The Utah Anti-Discrimination Act, for example, precludes an action against
an employer for negligence in ignoring a supervisor's propensities toward sexual
harassment. 48
However, courts have ruled to the contrary when considering this narrow issue, primarily
because of the different interests served under the respective statutory and common law
prohibitions. For example, one court ruled that allegations of sexual harassment under
Title VII provided a sufficient basis on which to bring a pendent state tort claim for
intentional infliction of emotional distress, despite the employer's argument that the state
FEP law provided the exclusive remedy. The purpose of the FEP law was to effectuate
the state's interest in eradicating certain forms of discrimination, while the tort served to
vindicate a personal freedom from intentional mental anguish, which involved a
fundamentally different interest. 49 Furthermore, damages for mental anguish are not
available under the FEP law and barring the common law cause of action would frustrate
rather that further the anti-discriminatory purpose of the law. 50
Similarly, a wrongful discharge tort action, based on an individual's resistance to sexual
harassment and her ultimate discharge for such resistance, was not barred by a state FEP
law's prohibition of sexual discrimination in employment. The discrimination law
remedies failed to capture the personal dimensions of the potential injuries suffered by
harassment victims, which could only be provided through legal relief in the common
law tort claim. 51
Footnotes
Footnote 48. Andresen v McDonnell Douglas Corp. (1991, DC Utah) 55 BNA FEP Cas
525.
Footnote 49. Shaffer v National Can Corp. (1983, ED Pa) 565 F Supp 909, 34 BNA FEP
Cas 172, 114 BNA LRRM 2941, 33 CCH EPD 34184.
Footnote 50. Schweitzer v Rockwell Int'l (1990) 402 Pa Super 34, 586 A2d 383, app den
(Pa) 600 A2d 954.
Footnote 51. Holien v Sears, Roebuck & Co. (1984) 298 Or 76, 689 P2d 1292, 36 BNA
967 Employer's common law responsibility for harassment in the workplace

View Entire Section
The extent to which an employer-corporation is liable for the torts committed by an
employee/agent who engages in sexual harassment depends on both the nature of the
damage claim and the employer's connection to the unlawful conduct. Courts often find
an employer liable for both compensatory and punitive damages resulting from torts
committed by employees acting on its behalf, although some will limit punitive damages
against corporations to instances where officers or directors participated in or ratified the
unlawful conduct. 52 When the person committing the unlawful sexual harassment
alleged as the basis for the tort action is the president and principal owner of the
corporation, 53 or owns 80% of the corporate stock and serves both as a director and
officer in top executive positions, 54 courts have no difficulty finding the corporation
liable for both punitive and compensatory damages flowing from the tort. However,
corporate defendants who exercised some control over the operation of a hotel, but not
over the management of employees, were not held liable for the torts caused by the
sexual harassment of a female employee. 55
Ratification by the corporation may take the form of a failure to act once a corporation,
through its managers, is made aware of harassing behavior. Thus, although a supervisor
was acting outside the scope of his authority, a corporate employer was liable for his
assault and battery and intentional infliction of emotional distress stemming from sexual
harassment of a female employee at work, where the supervisor's superior officer saw the
supervisor pat the plaintiff on the posterior, but took no immediate corrective action. The
failure to discipline the errant supervisor 56 created the possible inference that the
company knew of, and possibly condoned, the harassment. 57
An employer's responsibility for sexual harassment may be based on a failure to
investigate a complaint within a reasonable period of time. 58 Thus, where a harassing
supervisor was guilty of assault and battery, but not intentional infliction of emotional
distress, the employer's failure to confront him for nine months after the employee's
accusation of physical assaults and vulgar remarks, and its additional three-month delay
before censuring the supervisor in violation of its own policies, 59 made the employer
separately liable for the emotional distress tort. 60
Furthermore, an employer may be liable for its supervisor's emotional distress tort under
the theory of respondeat superior where management reasonably should have known of
the harassment, because it occurred during working hours at the office, and was
committed by someone with the authority to hire, fire, promote, and discipline the
plaintiff. 61 The Ohio Supreme Court has concurred with Shrout (above) and held that
an employer may be liable under agency principles for sexual harassment by its
supervisor, if the actions took place within the scope of the supervisor's employment.
Thus, when one employee is able to sexually harass another because of the authority or
apparent authority vested in him by the employer, his actions are within the scope of his
employment. An employer also has a duty to provide a safe work environment and may
be independently liable for failing to take corrective action against an employee who
poses a threat of harm to fellow employees, even when the employee's actions do not
serve or advance the employer's business goals. 62
Footnotes
Footnote 52. Clark v World Airways (1980, DC Dist Col) 24 BNA FEP Cas 305, 24
CCH EPD 31385.
Footnote 53. Phillips v Smalley Maintenance Services, Inc. (1983, CA11) 711 F2d 1524,
32 BNA FEP Cas 975, 1 BNA IER Cas 221, 32 CCH EPD 33802.
Footnote 54. Clark v World Airways (1980, DC Dist Col) 24 BNA FEP Cas 305, 24
CCH EPD 31385.
Footnote 56. 986.
Footnote 57. Davis v U.S. Steel Corp. (1985, CA4) 779 F2d 209, 39 BNA FEP Cas 955,
38 CCH EPD 35796.
Footnote 58. 984.
Footnote 59. 979.
Footnote 60. Ford v Revlon, Inc. (1987) 153 Ariz 38, 734 P2d 580, 43 BNA FEP Cas
Footnote 61. Shrout v Black Clawson Co. (1988, SD Ohio) 689 F Supp 774, 46 BNA
Footnote 62. Kerans v Porter Paint Co. (1991) 61 Ohio St 3d 486, 575 NE2d 428.
(2). Establishing the Existence of Harassment [968-972]
968 Demonstrating "pervasiveness" of harassment

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To establish "hostile work environment" harassment, 63 a showing may be required that
there was a "pattern and practice" of harassment, 64 or that the harassment was
"sustained and non-trivial," 65 "concerted," 66 "excessive, and opprobrious," 67
"pervasive," 68 or "pervasive and regular." 69
The more severe 70 the harassing conduct is, the less a plaintiff will need to show a
repetitive and frequent series of incidents. This is especially true where the type of
conduct is physical, as opposed to verbal. For instance, the EEOC's policy is to treat any
single unwelcome, 71 intentional touching of a person's intimate body areas as
sufficiently offensive to constitute unlawful sexual harassment. Where a victim is also
subject to offensive verbal conduct and nonintimate physical touching, the combination
increases the hostility of the environment and a violation of Title VII is likely to be
found. However, when the harassment is only verbal in nature, the conduct will be
evaluated based on its nature, frequency, context, and the intended target of the remarks,
to determine if it is lawful. 72
Therefore, isolated instances of racial epithets may be insignificant, but viewed together
they may be sufficiently pervasive to create a hostile environment, 73 and continuous,
racially-oriented comments and threats directed toward a white female because of her
relationship with a black man were sufficiently pervasive to establish "hostile work
environment" harassment. 74 However, a single request for sexual favors 75 from a
drunken supervisor was insufficiently pervasive to establish a hostile or intimidating
working environment. The fact that the plaintiff's supervisor also embarrassed her
occasionally by patting her on the bottom was not considered attributable to the employer
76 because she did not complain about that conduct prior to the suit. 77 Similarly, an
unwelcome homosexual advance will not constitute "hostile work environment"
harassment if it is merely fleeting and not pervasive. 78
"Tangible job benefit" harassment 79 is based on the denial or reduction of a term or
condition of employment, and, therefore, has no "pervasiveness" requirement. 80
968 ----Demonstrating "pervasiveness" of harassment [SUPPLEMENT]
Practice Aids: Sexual harassment in the workplace: A consideration of post-Vinson
approaches designed to determine whether sexual harassment is sufficiently severe or
pervasive, 5 DePaul Bus LJ 215 (1993).
Harris v. Forklift Systems, Inc. [ 126 LEd2d 295 (1993)]: An objective standard, but
whose perspective? 10 Lab Law 253 (1994).
Sexual harassment after Harris v. Forklift Systems, Inc. [ 126 LEd2d 295 (1993)]Is it
really easier to prove? 18 Nova LR 1889 (1994).
Employer liability for sexual harassment: A search for standards in the wake of Harris v.
Forklift Systems, Inc , 48 SMU LR 1:263 (1994).
Harris v. Forklift Systems, Inc. [ 126 LEd2d 295 (1993)]: Defining the plaintiff's burden
in hostile environment sexual harassment claims, 29 Tulsa LJ 761 (1994).
Labor lawCivil rightsMichigan Civil Rights ActThe existence of a hostile work
environment is determined by an objective reasonable person standard. Radtke v. Everett
, 501 NW2d 155 (Mich. 1993), 71 U Det Mercy LR 677 (1994).
Case authorities:
Sexual harassment claim under Title VII on hostile work environment theory requires
that plaintiff plead and prove that she suffered intentional discrimination because of her
gender, that discrimination was pervasive and regular, that discrimination detrimentally
affected her, that discrimination would detrimentally affect reasonable person of same
gender in that position, and existence of respondeat superior liability. Pittman v
Correctional Healthcare Solutions (1994, ED Pa) 868 F Supp 105, 66 BNA FEP Cas 825.
Title VII plaintiffs produced sufficient evidence of their sexually hostile environment
claim to survive employer's motion for summary judgment, where intent to discriminate
could be implied from nature of sexually derogatory remarks, deposition testimony of all
employees demonstrated that sexually derogatory language was pervasive and regular,
and that even male employees recognized that language was offensive to women, and
management level employee, who was chief offender, was aware of derogatory language.
Frey v Pennsylvania Airlines (1992, MD Pa) 64 BNA FEP Cas 981.
Evidence was sufficient to support 42 USCS 1983 sexual harassment claim by female
employee of county sheriff's office, where supervisor made sexual innuendos and
proposals, conduct was sufficiently severe and pervasive to create objectively abusive
work environment, and conduct caused employee's severe depression requiring
professional treatment. Beardsley v Webb (1994, CA4 Va) 30 F3d 524, 65 BNA FEP Cas
696.
Racially hostile working environment must be sufficiently severe or pervasive to alter
conditions of employment and create abusive atmosphere; existence of hostile
environment cannot be predicated upon acts that are isolated or genuinely trivial. Carter v
Ball (1994, CA4 Md) 33 F3d 450, 65 BNA FEP Cas 1414.
Isolated racial remark, even though offensive and entirely inappropriate, does not
establish abusive working environment. Williams v Prince George's County Medical Ctr.
(1996, DC Md) 70 BNA FEP Cas 1508, 68 CCH EPD 44044.
To prevail on claim for constructive discharge based on sexual harassment, plaintiff must
prove that working conditions were so difficult or unpleasant that reasonable person in
plaintiff's shoes would have felt compelled to resign; this burden of proof typically
requires evidence of harassment that is more severe or pervasive than minimum required
to prove hostile working environment. Walker v Mac Frugals Bargains, Closeouts (1994,
ED La) 66 BNA FEP Cas 1085, 2 BNA WH Cas 2d 953.
To prevail on claim for quid pro quo sexual harassment, plaintiff employee must show
that she belongs to protected group, that she was subjected to unwelcome sexual
harassment, that harassment complained of was based on sex, that acceptance or rejection
of harassment was express or implied condition of receipt of tangible job benefit or cause
of tangible job detriment, and respondeat superior. Walker v Mac Frugals Bargains,
Closeouts (1994, ED La) 66 BNA FEP Cas 1085, 2 BNA WH Cas 2d 953.
To prevail on hostile work environment sexual harassment claim, plaintiff employee
must establish that she belongs to protected group, that she was subject to unwelcome
sexual harassment, that harassment complained of was based upon sex, that harassment
complained of was sufficiently severe to alter conditions of employment and create
abusive working environment, and that employer knew or should have known of
harassment in question and failed to take prompt remedial action. Walker v Mac Frugals
Bargains, Closeouts (1994, ED La) 66 BNA FEP Cas 1085, 2 BNA WH Cas 2d 953.
In hostile work environment sexual harassment cases, incidents of sexual harassment
directed at employees other than plaintiff can be used as proof of plaintiff's claim;
however, incidents too remote in time or too attenuated from plaintiff's situation are not
relevant. Jones v Commander, Kan. Army Ammunitions Plant, Dep't of Army (1993, DC
Kan) 147 FRD 248.
With respect to claim of hostile work environment sex discrimination, test for
determining whether sexually inappropriate behavior rises to level of actionable sex
discrimination is inherently imprecise and requires that factfinder examine all
circumstances (including frequency and severity of alleged misconduct, whether it was
physically threatening or humiliating, and its effect on victim's psychological
well-being), and conclude both that reasonable person would have found environment
hostile or abusive (objective prong), and that victim did in fact perceive it as such
(subjective prong). Al-Dabbagh v Greenpeace, Inc. (1994, ND Ill) 66 BNA FEP Cas
1057, ops combined at (1994, ND Ill) 873 F Supp 1105.

White female county employee proffered sufficient evidence to establish genuine issue of
material fact as to whether supervisors intentionally violated her clearly established right
to be free of sexual harassment and racial discrimination, for purposes of 42 USCS
1983, where employee provided specific examples of ongoing physical and verbal abuse
and examples of specific promotions she was denied because of race and gender. Bator v
Hawaii (1994, CA9 Hawaii) 39 F3d 1021, 94 CDOS 8523, 94 Daily Journal DAR 15782,
66 BNA FEP Cas 290.
To constitute actionable racial harassment, conduct must be sufficiently severe or
pervasive to alter conditions of victim's employment and create abusive working
environment. Bolden v PRC Inc. (1994, CA10 Kan) 43 F3d 545.
Title VII plaintiff failed to state prima facie case of hostile work environment sexual
harassment, where co-employee sexually harassed plaintiff twice during one week,
plaintiff complained to supervisors right after second incident, plaintiff informed
supervisors that she wanted complaint handled confidentially, immediately upon being
informed of incidents, supervisory personnel took action to stop behavior, and such
behavior was not repeated. Besso v Cummins Intermountain (1995, DC Wyo) 885 F
Footnotes
Footnote 63. 954.
1155, 24 CCH EPD 31439.
EPD 33639.
Footnote 66. Fekete v U.S. Steel Corp. (1973, WD Pa) 353 F Supp 1177, 5 BNA FEP
Cas 639, 5 CCH EPD 8569.
Footnote 67. Cariddi v Kansas City Chiefs Football Club, Inc. (1977, CA8) 568 F2d 87,
CCH EPD 32993.
Footnote 69. Andrews v Philadelphia (1990, CA3) 895 F2d 1469, 52 CCH EPD 39635.
Footnote 70. As to demonstrating severity, see 969.
Footnote 71. AS to demonstrating "unwelcome" conduct, see 971.
Footnote 73. White v Federal Express Corp. (1990, ED Va) 729 F Supp 1536, 52 BNA
FEP Cas 108, 5 BNA IER Cas 210, affd (1991, CA4) 56 BNA FEP Cas 657, 56 CCH
EPD 40837.
Footnote 74. Moffett v Gene B. Glick Co. (1985, ND Ind) 621 F Supp 244, 41 BNA FEP
Footnote 75. 961.
Footnote 76. 974.
982, 28 CCH EPD 32497.
Footnote 78. Parrish v Washington Nat. Ins. Co. (1990, ND Ill) 1990 US Dist LEXIS
13934.
Footnote 79. 953.
Footnote 80. Barnes v Costle (1977) 183 App DC 90, 561 F2d 983, 15 BNA FEP Cas
345, 14 CCH EPD 7755; Miller v Bank of America (1979, CA9) 600 F2d 211, 20 BNA
969 Demonstrating "severity" of harassment

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The EEOC's determination of whether harassment is sufficiently "severe" to create a
hostile environment 81 is based on whether it would substantially affect the work
environment of a reasonable person. The victim's perspective also must be considered,
not stereotyped notions of what behavior is acceptable to persons of a particular gender.
82
The Ninth Circuit has adopted a gender-conscious "reasonable woman" standard under
which it will analyze the "severity" of alleged sexual harassment. The court adopted this
perspective because it found the sex-blind "reasonable person" standard was male-biased
and tended to ignore the experiences of women. Since men and women may have
different perspectives on conduct, and because women are disproportionally victims of
sexual violence, men may lack a full appreciation of the underlying threat of violence
that a woman can reasonably perceive from certain conduct. The "reasonable woman"
standard does not establish a higher level of protection against harassment for women
than men, and does not require an employer to accommodate the idiosyncratic concerns
of the rare hyper-sensitive employee. However, even well-intentioned compliments can
form "hostile work environment" harassment if a reasonable victim feels threatened by
them, regardless of whether they are severe enough to require psychiatric assistance. 83
Similarly, a court in the Eleventh Circuit has concluded that conduct that is not directed
at a particular individual or group of individuals, but is disproportionately more offensive
or demeaning to one sex, also creates a hostile environment. Such behavior creates a
barrier to the progress of women in the workplace because it conveys the message that
they are only welcome if they will subvert their identities to the sexual stereotypes
prevalent in that environment. 84 Further, while not overruling Rabidue, 85 another
panel in the Sixth Circuit has stated that when a male supervisor harasses a female
subordinate, it seems only reasonable that the severity of the conduct be evaluated in
terms of the person standing in the victim's shoes, that is, a "reasonable woman," and
conversely, when sexual harassment involves a male victim, the "reasonable man"
standard should apply, since men and women are vulnerable in different ways and are
offended by different behavior. 86 A district court in the First Circuit has used a similar
approach in evaluating the severity of a racial harassment claim, finding that the
determination of whether conduct or speech is pervasive enough to constitute harassment
must be considered only from the victim's perspective. 87
While the Third Circuit only uses an objective "reasonable person" criteria in
determining the requisite offensiveness of the harassment, 88 other courts follow
EEOC's objective "reasonable person" and subjective "victim's point of view" analysis, at
least in the context of the severity of sexual harassment. 89
Although the Eighth
Circuit has accepted the reasonable person standard, 90 the Seventh Circuit, reaffirming
Brooms (above), has applied the mixed subjective/objective test to a case of racial
harassment, and expressly rejected the Andrews objective "reasonable person" test. 91
Under this analysis, the required degree of severity is established by showing that the
conduct would interfere with a reasonable person's work performance and seriously
affect her psychological well-being, and that the plaintiff was actually offended and
suffered some degree of injury as a result of the conduct. 92 The probable effect of the
conduct on both a reasonable person's ability to perform his work, and the actual effect it
had on the claimant must be considered. 93 However, at least in the case of sexual
harassment, a claimant need not prove a psychological injury in order to demonstrate that
the harassment was sufficiently severe or offensive. 94
The Sixth Circuit has held that employees alleging a racially hostile work environment
need not prove that their actual job productivity was adversely affected, only that the
harassment made it more difficult for them to perform their jobs. 95
Observation: The severity of sexual harassment is evaluated under the EEOC's

guidelines 96 by determining whether the conduct is "unwelcome". 97
Observation: "Tangible job benefit" harassment 98 is focused on the objective loss

of or reduction in a specified term or condition of employment. Therefore, the
"severity" of the conduct is irrelevant to that type of harassment.
969 ----Demonstrating "severity" of harassment [SUPPLEMENT]
Practice Aids: When two liberal values collide in an era of "political correctness":
First Amendment protection as a check on speech-based Title VII hostile
environmental claims, 47 Baylor LR 3:789 (1995).
Rational women: A test for sex-based harassment, 83 Cal LR 5:1151 (1995).
Is there a place for a reasonable woman in the law? A discussion of recent developments
in hostile environment sexual harassment, 42 Duke LJ 854 (1993).
Sexual harassment and the reasonable woman standard: is it a viable solution?, 31 Duq
LR 841 (1993).
The legal, ethical, and social implications of the "reasonable woman" standard in sexual
harassment cases, 61 Fordham LR 773 (1993).
The "reasonable woman" standard in sexual harassment cases, 81 Ill BJ 8:404 (1993).
The reasonable woman test in sexual harassment lawwill it really make a difference? 26
Ind LR 227 (1993).
Sexual harassment claims: Who is a reasonable woman? 44 Lab LJ 646 (1993).
Workplace sexual harassment: Harris [ 126 LEd2d 295 (1993)]and recent developments
in hostile environment claims, 9 Maine BJ 92 (1994).
Sexual harassment from the victim's perspective: The need for the Seventh Circuit to
adopt the reasonable woman standard, 77 Marquette LR 85 (1993).
Harmless amusement or sexual harassment?: The reasonableness of the reasonable
woman standard, 20 Pepp LR 1071 (1993).
Seeking a safe harbor: The viability of summary judgment in post- Harris sexual
harassment litigation, 20 S Ill U LJ 223 (1996).
Sexual harassment and expertise: The admissibility of expert witness testimony in cases
utilizing the reasonable woman standard, 35 Santa Clara LR 2:651 (1996).
Hostile work environment sexual harassment after Harris [ 126 LEd2d 295 (1993)]:
Abolishing the requirement of psychological injury, 19 Thurgood Marshall LR 451
(1994).
Civil rightsemployer's beware: The Supreme Court's rejection of the psychological
injury requirement in Harris v. Forklift Systems, Inc. , makes it easier for employees to
establish a claim for sexual harassment based on a hostile working environment, 17 U
Ark L R LJ 4:839 (1995).
The reasonable woman standard: Perpetuating sex discrimination in the workplace
[Ellison v. Brady, 924 F.2d 872 (1990)], 5 U Fla J L & Public Policy 329 (1993).
The reasonable woman in sexual harassment law: Progress or illusion? 28 Wake For LR
619 (1993).
Case authorities:
There is both subjective and objective component of sexual harassment claim: Title VII
plaintiff must establish that she was adversely affected by conduct, and that reasonable
person would also have been adversely affected. Rennie v Dalton (1993, CA7 Ind) 3 F3d

Disparities in accounts of employeewho alleged that coemployee intentionally touched
her on chestand coemployeethat he touched her on shoulderwere too great to simply
be explained by difference in their subjective interpretation of events to which they were
only witnesses, requiring remand for necessary credibility determination. Davis v
Department of the Navy (1993, MSPB) 59 MSPR 24.
Footnotes
Footnote 81. 954.
Footnote 83. Ellison v Brady (1991, CA9) 924 F2d 872, 54 BNA FEP Cas 1346, 55 CCH
EPD 40520.
Footnote 84. Robinson v Jacksonville Shipyards, Inc. (1991, MD Fla) 760 F Supp 1486,
Inc. (1986, CA6) 805 F2d 611, 42 BNA FEP Cas 631, 27 BNA WH Cas 1513, 41 CCH
CCH EPD 37086.
Footnote 87. Harris v International Paper Co. (1991, DC Me) 765 F Supp 1509, amd (DC
Me) 765 F Supp 1529, 57 CCH EPD 41132, 120 CCH LC 10960.
Footnote 89. Fourth CircuitWhite v Federal Express Corp. (1991, CA4) 939 F2d 157,
Sixth CircuitRabidue v Osceola Refining Co., Div. of Texas-American Petrochemicals,
Seventh CircuitBrooms v Regal Tube Co. (1989, CA7) 881 F2d 412, 50 BNA FEP Cas
1499.
Footnote 90. Burns v McGregor Electronic Industries, Inc. (1992, CA8) 955 F2d 559, 57
Footnote 91. Daniels v Essex Group, Inc. (1991, CA7) 937 F2d 1264, 56 BNA FEP Cas
833, 56 CCH EPD 40896.

1499.
Footnote 94. EEOC Policy Statement No. N 915.050, 3/19/90.
BNA FEP Cas 96.
Footnote 96. 960.
Footnote 97. 971.
Footnote 98. 953.
970 Evaluations of particular conduct for "severity" of harassment

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Types of conduct which have been found to lack sufficient "severity" to establish "hostile
work environment" harassment include:
simply avoiding communication with an employee who rejected sexual advances; 99
mere snubs and unjust criticisms of an employee's work; 1
annoying obscene language and sexually oriented poster displays, because the vulgarity
had a "de minimus" effect due to society's condonation of public displays of erotica; 2
an isolated incident in which the plaintiff's manager purportedly made a few brief and
mild advances, then stopped and apologized with apparent embarrassment. 3
Types of conduct found sufficiently offensive and severe to establish "hostile work
environment" harassment include:
derogatory, obscene, and insulting terms relating to women, personally addressed to
female employees, as well as the posting of pornographic pictures in common areas; 4
posting of pictures of nude and partly nude women, sexually demeaning remarks and
jokes made by male workers, and other harassment directed at women that lacked a
sexually explicit content; 5
racial slurs; 6
a supervisor's proselytizing his religious beliefs, that induced subordinates to believe
that their job security was affected by their willingness to convert to his religion; 7
an employer's requirement for or encouragement of employees to attend weekly
meetings of a substantially religious nature, contrary to their religious beliefs; 8
a supervisor's constant touching, attempting to kiss, and other sexual advances toward
an employee. 9
Observation: The evaluation of whether conduct is severe enough to constitute

harassment may also depend on whether it comes from a coworker 10 or a supervisor
or manager, 11 since the latter source of harassment may objectively and subjectively
increase the intimidation of, and cause discomfort for, a victim.
970 ----Evaluations of particular conduct for "severity" of harassment
[SUPPLEMENT]
Case authorities:
Summary judgment is appropriate in quid pro quo sexual harassment case, where plaintiff
can provide no evidence to establish causal connection between her response to
unwelcome sexual advances and decision affecting terms and conditions of her
employment. Schuster v New York State Unified Court Sys. (1995, SD NY) 67 BNA
FEP Cas 1758.
For purposes of determining what evidence may be considered in evaluating whether
particular work environment was hostile from objective point of view, evidence of
harassment of other employees about which plaintiff was aware during her employment
(whether plaintiff witnessed events or simply had knowledge of them) would contribute
to general working environment. Hallberg v Eat 'n Park (1996, WD Pa) 70 BNA FEP Cas
361.
Standard for determining that sexual harassment constitutes hostile work environment is
not, and by its nature cannot be, mathematically precise test, such that boundary of what
is actionable is unclear. Spicer v Virginia Dep't of Corrections (1995, CA4 Va) 44 F3d
218.
Title VII plaintiff alleging constructive discharge must prove deliberateness of
employer's actions, and intolerability of working conditions; deliberateness can be
demonstrated by actual evidence of intent by employer to drive employee from job or
circumstantial evidence of such intent, and intolerability is assessed by objective standard
of whether reasonable person in employee's position would have felt compelled to resign.
Diamond v T. Rowe Price Assocs. (1994, DC Md) 852 F Supp 372, 64 BNA FEP Cas
1574, 2 BNA WH Cas 2d 65.
Reasonable factfinder could find that alleged conduct was sufficiently severe or
pervasive to be actionable where conduct involved more than isolated incident and
involved physical contact. Wilson v Southern Nat'l Bank (1995, WD NC) 67 BNA FEP
Cas 933.
Rational factfinder could conclude that Title VII plaintiff, who was substitute school
custodian, was subjected to sex-based conduct that was so severe and pervasive that she
could prevail on her hostile environment claim, where school principal sexually assaulted
her, made numerous sexual comments to her, and followed her around school and
watched her work while he ate lunch. Redman v Lima City Sch. Dist. Bd of Educ. (1995,
ND Ohio) 67 BNA FEP Cas 806.
Title VII plaintiff need not show that campaign of sexual harassment interfered with her
work performance in order to establish violation of Title VII; inquiry under Title VII is
not whether work has been impaired, but whether working conditions have been
discriminatorily altered. Dellert v Total Vision (1995, ND Ill) 875 F Supp 506, 67 BNA
FEP Cas 200.
Title VII does not protect against all comments that employee may find offensive;
however, there comes point where behavior crosses over line and becomes sufficiently
pervasive and severe to create hostile work environment and constitute sex
discrimination. Stoeckel v Environmental Management Sys. (1995, DC Dist Col) 882 F
Evidence established that supervisor violated agency's policy against offensive
comments, gestures or physical contact of sexual nature in work environment by
commenting on female employee's pants, putting his arm around her and telling her that
he loved her, and three times telling her that he wanted to "mess around." Kirk v
Department of the Navy (1993, MSPB) 58 MSPR 663.
Footnotes
Footnote 99. Hollis v Fleetguard, Inc. (1987, MD Tenn) 668 F Supp 631, 44 BNA FEP
Cas 1527, 44 CCH EPD 37545.
Footnote 1. Miller v Aluminum Co. of America (1988, WD Pa) 679 F Supp 495, 45 BNA
FEP Cas 1775, 28 BNA WH Cas 836, 47 CCH EPD 38112, 108 CCH LC 35058, affd
without op (CA3) 856 F2d 184.
BNA FEP Cas 96.
FEP Cas 842.
FEP Cas 434.
Footnote 9. Carrero v New York City Housing Authority (1989, CA2) 890 F2d 569, 51
Footnote 10. 976.
Footnote 11. 974.
971 Demonstrating that conduct is "unwelcome"

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Under the EEOC's definition of sexual harassment, 12 the key inquiry as to whether
sexual advances 13 or verbal or physical conduct of a sexual nature 14 are sufficiently
"severe" 15 to constitute harassment is whether they are "unwelcome." To determine
this, it is permissible to examine the victim's actions. 16
The focus is on whether the
victim solicited or incited the conduct, or whether she regarded it as undesirable or
offensive, 17 regardless of whether other members of the plaintiff's sex did not mind the
conduct, or even participated in it. 18
The unwelcomeness of sexual advances does not have to be expressed verbally. For
example, when a supervisor grabbed the hands of a female employee and made verbal
advances, the employee effectively communicated unwelcomeness by withdrawing her
hands and changing the subject. 19 However, because sexual attraction may affect the
daily social exchange among employees, it may become necessary, although difficult, to
distinguish between "uninvited-but-welcome," "offensive-but-tolerated," and "flatly
rejected" sexual advances. A claimant's complaint or protest of the sexual conduct may
not demonstrate "unwelcomeness," if she gave prior indication that such behavior was
welcome. However, a protest made immediately or soon after the objectionable conduct
will help demonstrate "unwelcomeness." Furthermore, timely complaints or protests are
not essential in this respect, since delay or the absence of complaint may result from a
fear of repercussions. 20
Since a claimant's subjective perception of unwelcomeness is a highly relevant factor in
evaluating the conduct as sexual harassment, a plaintiff's participation in sexual
horseplay in order to be accepted as "one of the boys," even though she found it
offensive, indicated that the conduct she complained of was not "unwelcome." She
initiated sex-related joking among both male and female coworkers, and she never
complained about the conduct to superiors. 21 Similarly, a plaintiff's willing and

frequent involvement in the sexual innuendos prevalent in her work area indicated that
she did not find most of such conduct truly "unwelcome" or hostile. While participation
in actions of a sexual or vulgar nature at work may not completely bar a claim of "hostile
work environment harassment," the plaintiff must show that at some point she clearly
made her coworkers and superiors aware of the fact that in the future she would consider
such conduct to be "unwelcome." 22 For example, when a plaintiff's request that her
supervisor not touch her was not delivered with a sense of urgency, sincerity, or force, so
that it sent mixed messages, she could not demonstrate that his conduct was
"unwelcome." 23 Thus, evidence of a victim's provocative dress and publicly expressed
sexual fantasies may be relevant as to whether a sexual advance was unwelcome, 24
and an employee's conduct outside the workplace is relevant in determining whether she
considered a supervisor's sexual advances unwelcome. Thus, in determining whether
conduct directed at the employee was unwelcome, evidence that she had posed nude for a
pornographic magazine may be relevant to explain the context of some of the comments
and actions directed at her in the workplace. 25
However, a victim's prior awareness of, or even participation in conduct that could be
considered harassing, will not automatically prevent a finding of sexual harassment, 26
especially if she clearly indicated to the harasser that the conduct currently at issue was
unwelcome. 27
There must be a relationship between the claimant's "participatory" conduct and the
alleged harassment before the harassing conduct can be considered welcome. Thus, a
female employee's use of profanity and indulgence in workplace pranks, which may have
been attempts to fit into the working environment and may have antagonized her
coworkers, were not sufficiently related to the coworker's harassing conduct, both sexual
and nonsexual in nature. Not only was her conduct insufficiently provocative to justify
the abuse directed at her, but there was no evidence that the alleged harassment was
motivated by her conduct, and she had expressed distaste for it, and embarrassment at the
treatment she had endured. 28
Furthermore, a victim's sexual conduct which is remote in time or place from the
workplace is not relevant in demonstrating whether the sexual harassment was welcome.
29
Caution: Even if a sexual advance is welcomed by the recipient, coworkers who

repeatedly witness this conduct could assert it as the basis for their own harassment
allegations, if witnessing the conduct is unwelcome to them. 30
971 ----Demonstrating that conduct is "unwelcome" [SUPPLEMENT]
Practice Aids: Sexual harassment: Is it always "unwelcome"? 18 Emp Rel LJ 681
(1993).
Sexy dressing, etc., 107 Harv LR 745 (1994).
By invitation only: The proof of welcomeness in sexual harassment cases, 72 NC LR 499
(1994).
The implications of admitting evidence of a sexual harassment plaintiff's speech and

dress in the aftermath of Meritor Savings Bank v. Vinson, 41 UCLA LR 117 (1993).
Case authorities:
Black female employee was not sexually harassed by two incidents that occurred during
her employment (on one occasion she had been given calendar featuring nude men, and
on another occasion she had been given bucket of candy suckers made to resemble black
and white penises), because employer presented evidence that plaintiff had enjoyed gifts
that she had received, plaintiff had admitted that she had no problems in her employment
at store prior to time she began to date white co-worker (two incidents had occurred prior
to that time), and total of two incidents during course of eight-year employment period
were not sufficient to create pervasively hostile work environment. Ziegler v K-Mart
Corp. (1994, DC Kan) 65 BNA FEP Cas 1694.
Footnotes
Footnote 12. 960.
Footnote 13. 961.
Footnote 14. 962.
Footnote 15. 969.
CCH EPD 32993.
Footnote 18. Morgan v Hertz Corp. (1981, WD Tenn) 542 F Supp 123, 27 BNA FEP Cas
EPD 34066.
Footnote 19. Chamberlin v 101 Realty, Inc. (1990, CA1) 915 F2d 777, 54 BNA FEP Cas
101, 54 CCH EPD 40282.
Footnote 21. Reed v Shepard (1991, CA7) 939 F2d 484, 56 BNA FEP Cas 997, 57 CCH
EPD 40927.
Footnote 22. Weinsheimer v Rockwell Int'l Corp. (1990, MD Fla) 754 F Supp 1559, 54
BNA FEP Cas 828, 55 CCH EPD 40469, affd without op (CA11) 949 F2d 1162, 57
BNA FEP Cas 1224.
Footnote 23. Kouri v Liberian Services, Inc. (1991, ED Va) 55 BNA FEP Cas 124
(unpublished).
Footnote 25. Burns v McGregor Electronic Industries, Inc. (1992, CA8) 955 F2d 559, 57
Footnote 26. Wyerick v Bayou Steel Corp. (1989, CA5) 887 F2d 1271, 51 BNA FEP Cas
491, 52 CCH EPD 39471.
Footnote 27. Swentek v USAIR, Inc. (1987, CA4) 830 F2d 552, 44 BNA FEP Cas 1808,
44 CCH EPD 37457.
Footnote 28. Morris v American Nat. Can Corp. (1989, ED Mo) 730 F Supp 1489, 52
BNA FEP Cas 210, affd in part and rev in part on other grounds (1991, CA8) 952 F2d
Footnote 29. Mitchell v Hutchings (1987, DC Utah) 116 FRD 481, 44 BNA FEP Cas
615, 44 CCH EPD 37427.
Footnote 30. 963.
972 Effect of a prior consensual affair on an evaluation of whether conduct is

"unwelcome"
View Entire Section
Under the EEOC's definition of sexual harassment, 31 a plaintiff who wants to
demonstrate "hostile work environment" harassment, 32 will find it more difficult to
establish the fact that the harassing conduct was "unwelcome" 33 if he or she had
engaged in a prior consensual sexual relationship with the harasser.
The same situation applies in "tangible job benefit" harassment 34 when a prior
consensual sexual relationship ends and the employer penalizes the employee in some
way. One court has viewed the latter situation as creating a presumption that the
employer did not act on the illegal basis of gender, but because of the failed relationship.
This presumption can only be rebutted by demonstrating that the employer demanded
further sexual favors and threatened punishment at work for the employee's refusal before
taking the adverse employment action. Thus, a female employee who was fired after
ending her affair with a coworker had no Title VII action, since she was only able to
demonstrate that he reacted harshly to their failed relationship by making negative
comments about her to her supervisor, not that he ever threatened her with termination
for refusing to continue the relationship. 35
However, a plaintiff's allegation that her supervisor implored her to resume their
consensual relationship, coupled with his contemporaneous threat to destroy her career if
she did not, and his subsequent issuance of a disciplinary letter against her, raised an
inference that he intended to blackmail her into again accepting his sexual advances. 36
Footnotes
Footnote 31. 960.
Footnote 32. 954.
Footnote 33. 971.
Footnote 34. 953.
Footnote 35. Keppler v Hinsdale Township High School Dist. (1989, ND Ill) 715 F Supp
Annotation: Discoverability and admissibility of plaintiff's past sexual behavior in
Title VII sexual harassment action, 73 ALR Fed 748.
Footnote 36. Babcock v Frank (1990, SD NY) 729 F Supp 279.
(3). Employer's Responsibility for Harassment [973-977]
973 Employer's participation in harassment

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Go to Supplement
A Title VII "employer" is responsible for its own harassing actions, regardless of whether
it had prohibited the specific acts complained of 37 or had no other notice of their
occurrence. 38 Thus, where an employee was sexually harassed by an individual who
was both her supervisor and "employer," under Title VII, she did not need to show that
she gave anyone notice of the harassment. The employer was directly liable to her for its
agent's actions, rather than indirectly liable under principles of "respondeat superior." 39
Harassment by the head of a department also was considered the action of his employer
for Title VII purposes, without regard to whether the employer knew of his propensity to
harass, because a supervisor who knew about the harassment was expressly entrusted
with the responsibility of handling sexual harassment matters, but failed to remedy or
prevent it. 40
Observation: Whether an individual manager is personally liable for sexual

harassment depends on whether that person can be considered an "employer," not just
an "agent" of the employer. 41
Observation: The employer's responsibility for its own participation in harassment is

the same, regardless of which of the two types of harassment 42 is at issue. 43
973 ----Employer's participation in harassment [SUPPLEMENT]

Practice Aids: Title VII sexual harassment: Recognizing an employer's non-delegable
duty to prevent a hostile workplace, 95 Colum LR 3:724 (1995).
Employer liability for acts of sexual harassment in the workplace: Respondeat superior
and beyond, 68 Fla BJ 11:41 (1995).
Rulings by several courts of appeals may lead to expanded employer liability for
supervisors conduct in hostile work environment sexual harassment cases, 16 National LJ
49:B5 (1994).
Case authorities:
County supervisors would not be held liable for deprivation of county employee's
substantive due process rights resulting from actual physical assaults that allegedly
occurred during co-workers' general course of harassment, where no evidence indicated
supervisors authorized or condoned physical assaults or known pattern of comparable
conduct. McWilliams v Fairfax County Bd. of Supervisors (1996, CA4 Va) 72 F3d 1191,
Third party complaint filed against union by defendant employer in Title VII action,
which alleged that union breached collective bargaining agreement by allowing alleged
sexual harassment of plaintiff to continue, was dismissed, because complaint did not
allege that union had directed, induced, authorized or ratified sexually harassing acts of
its members. Cole v Appalachian Power Co. (1995, SD W Va) 67 BNA FEP Cas 1729,
149 BNA LRRM 2638.
City was not liable in 42 USCS 1983 action by female dispatchers who alleged that
they were subjected to sexual harassment and discrimination by former police chief,
where aldermanic form of city government under which city mayor had all final
policymaking power did not authorize police chief to make official policy or custom.
Lankford v City of Hobart (1996, CA10 Okla) 73 F3d 283, 69 BNA FEP Cas 1149.
Municipality was not liable in 42 USCS 1983 action by police officer alleging gender
discrimination, where although city manager, who was final policymaker as to personnel
matters, ratified allegedly discriminatory employment actions by police chief, no
evidence was presented showing that city manager approved of police chief's allegedly
illegal or improper motives in making employment decisions. Hill v Wayland (1996,
Municipality was not liable in 42 USCS 1983 action by police officer alleging gender
discrimination, where although city manager, who was final policymaker as to personnel
matters, ratified allegedly discriminatory employment actions by police chief, no
evidence was presented showing that city manager approved of police chief's allegedly
illegal or improper motives in making employment decisions. Hill v Wayland (1996,
Footnotes
Footnote 37. 979.
Footnote 38. 29 CFR 1604.11(c).
Footnote 39. Sparks v Pilot Freight Carriers, Inc. (1987, CA11) 830 F2d 1554, 45 BNA
Footnote 40. Campbell v Kansas State University (1992, DC Kan) 1992 US Dist LEXIS
3379.
Footnote 41. For a discussion of an agent's status as an "employer," see 63.
Footnote 42. 952.
Footnote 43. For a discussion of when corrective action is required by an employer that is
responsible for harassment under Title VII, see 981.
974 Supervisor or manager "hostile work environment" harassment

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Although it has not issued definitive guidance concerning an employer's liability for
harassment under Title VII, the Supreme Court has indicated in a "hostile work
environment" 44 sexual harassment case that employers are neither automatically
liablewithout regard to the circumstancesfor harassment committed by their
supervisors, nor insulated from liability simply because they lacked notice of the alleged
harassment. Rather, it was Congress' intent, evident in the inclusion of "agents" in the
definition of "employers" covered by Title VII, 45 that the courts look to agency
principles for guidance in determining liability for harassment. 46
The EEOC's policy is to condition employer liability for "hostile work environment"
harassment on the degree to which harassing supervisors act in agency capacities.
Agency liability may be based on supervisory actions that are actually within the scope of
supervisors' employment, or on actions that reasonably appear to be within supervisors'
authority. An employer may also be liable based on "agency by estoppel," where it
intentionally or carelessly causes an employee to mistakenly believe that a supervisor
acts for it, or where the employer knows of the employee's misapprehension, but fails to
correct it. 47
In applying traditional agency principles to hostile work environment harassment, a key
issue is whether the harassment occurred within the scope of the agent's employment.
The crucial factors involved in this issue are when and where the alleged harassment took
place, and whether it was foreseeable. Even if harassment is forbidden under an
employer's policy 48 it still may be within the scope of an agent's employment if it
occurs at the office during working hours, and is committed by someone with the
authority to hire, fire, promote, and discipline employees. 49 Where the alleged harasser
is not a supervisor and has only limited authority over the victim, the usual indicia of an
agency relationship may not be present, and the harasser may only be deemed to be a
"coworker". 50
In evaluating employer liability for "hostile work environment" harassment by a
supervisor under agency principles, the Tenth Circuit reviews 219 of the Restatement
(Second) of Agency. That section first finds an employer liable for torts committed
"while acting in the scope of employment." If the employer has a policy against
harassment, liability cannot be found on that basis. Second, the section makes an
employer liable for negligent or reckless conduct, in this context, meaning its failure to
remedy or prevent harassment it knew or should have known about. Third, 219
imposes tort liability when a supervisor purports to act on the employer's behalf and
another person relies on this apparent authority, or the agency relationship assists in
accomplishing the tort. Liability for harassment could apply in this situation if a
supervisor takes or threatens to take disciplinary action against the victim. 51
In cases of "hostile work environment" sexual harassment, the elements of employer
liability premised on agency principles are less likely to be present than in "tangible job
benefit" 52 cases. Strict liability for hostile environment harassment is illogical, since
supervisors' acts of harassment are usually beyond the scope of their authority, thus, they
cannot be viewed as actions taken on the employer's behalf. 53
Whether the employer must actually be notified of "hostile work environment"
harassment, or will be responsible for knowing of it, depends on who the alleged harasser
is in relation to the victim. Applying agency principles, where a supervisory agent of the
employer participates in the harassment, the victim need not show that he notified the
employer in order to establish its liability, since the harasser has the actual or apparent
authority to affect the employee's job status. 54 However, the employee's claim will be
considerably stronger for employer liability if she makes a contemporaneous complaint
or protest, 55 so that the employer has actual notice of harassment by a supervisor. 56
Although notice to the employer is not necessary to establish its liability for a
supervisory agent's participation in "hostile work environment" harassment, it is
necessary where the supervisor lacks actual or apparent authority to harass the plaintiff.
A supervisor lacked such authority where the scope of his employment did not include
the creation of a sexually hostile environment by sexually harassing a subordinate, and
the employer had a policy against sexual harassment and an effective grievance
procedure that encouraged employees to complain about any problems. The plaintiff
knew the supervisor lacked authority to harass her because she had attempted to halt his
advances by invoking her rule against dating her supervisor. 57 Another employer
avoided liability in a "hostile work environment harassment" situation when the employer
was never directly placed on notice of the conduct at issue, despite the fact that it was
attributed to the director of personnel who directly issued orders to the plaintiff, when
that supervisor lacked sufficient authority to impute his actions to the company.
Although he recommended salary increases and promotions, only the company president
had final approval on those recommendations. 58
An employer's sexual harassment policy may be a factor in determining liability.
Although a supervisor with authority to hire, fire, and discipline an employee sexually
harassed an employee, the employer was insulated from liability because it had an
adequate, if not exemplary, sexual harassment policy and procedure that the employee
failed to use. Furthermore, the employer lacked actual or constructive knowledge of the
existence of a sexually hostile working environment. 59
974 ----Supervisor or manager "hostile work environment" harassment
[SUPPLEMENT]
Practice Aids: Hostile environment sexual harassment by a supervisor under Title VII:
reassessment of employer liability in light of the Civil Rights Act of 1991, 24 Colum
HR LR 41 (1993).
Employer liability for "hostile work environment" sexual harassment created by
supervisors: The search for an appropriate standard, 25 Univ Memphis LR 2:667 (1995).
A unified approach to causation in disparate treatment cases: using sexual harassment by
supervisors as the causal nexus for the discriminatory motivating factor in mixed motives
cases, 1993 Wis LR 231 (1993).
Case authorities:
Proper analysis for employer liability in hostile environment cases is what
management-level employees knew or should have known, not whether employee was
acting within his scope of employment. Nichols v Frank (1994, CA9 Or) 94 CDOS 8992,
94 Daily Journal DAR 16780, 66 BNA FEP Cas 614, mod (1994, CA9 Or) 94 CDOS
9438, 94 Daily Journal DAR 17472.
Footnotes
Footnote 44. 954.
Footnote 45. For a discussion of an agent's status as an "employer," see 63.
Footnote 48. 979.
CCH EPD 37086.
Footnote 50. Swentek v USAIR, Inc. (1987, CA4) 830 F2d 552, 44 BNA FEP Cas 1808,
44 CCH EPD 37457.
Footnote 51. Toliver v Sequoyah Fuels Corp. (1991, CA10) 1991 US App LEXIS 10622.
Footnote 52. 975.
Footnote 53. Steele v Offshore Shipbuilding, Inc. (1989, CA11) 867 F2d 1311, 49 BNA

Footnote 54. Huddleston v Roger Dean Chevrolet, Inc. (1988, CA11) 845 F2d 900, 46
1155, 24 CCH EPD 31439.
Footnote 58. Kouri v Liberian Services, Inc. (1991, ED Va) 55 BNA FEP Cas 124
(unpublished).
Footnote 59. Tinsley v Hercules Inc. (1991, ED Va) 1991 US Dist LEXIS 15813.
As to an employer's obligation to take prompt and effective remedial action once notified
of harassment, see 981.
975 Supervisor or manager harassment involving a "tangible job benefit"

View Entire Section
The EEOC's policy is to hold employers responsible for all acts of "tangible job benefit"
60 harassment, since supervisory control of job benefits must be derived from the
employer's delegation. 61
Relying on the agency principles also applicable in "hostile work environment"
harassment, 62 courts have found employers strictly liable for "tangible job benefit"
harassment, since the supervisor acts for the company by definition, 63 and the
employer's knowledge of harassment is imputed to it through its agent, the supervisor. 64
The employer is also strictly liable for supervisory job benefit harassment that partially
takes place after hours or off company property, if the employer had relinquished broad
personnel authority over the victim to the supervisor. 65
Footnotes
Footnote 60. 953.
Footnote 62. 974.
Footnote 63. Carrero v New York City Housing Authority (1989, CA2) 890 F2d 569, 51
Footnote 65. Schroeder v Schock (1986, DC Kan) 42 BNA FEP Cas 1112.
976 Coworker "hostile work environment" harassment

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An employer may be responsible for "hostile work environment" harassment 66
committed by coworkers where it knew, or should have known (through its agents), of
the conduct, unless it takes immediate and appropriate corrective action. 67 For
example, when an employee was harassed by coworkers because of his national origin,
but never brought the harassment to the attention of management, the employer was not
responsible for their conduct. 68
Proving the employer's responsibility for unlawful coworker harassment is, therefore,
more difficult than demonstrating supervisory "hostile work environment" harassment,
69 because of the increased burden of showing the employer's knowledge of the
conduct. Employer knowledge has been established where discriminatory conduct was
specifically brought to the attention of management, 70 or where an employer should
have known of the harassment because of its pervasiveness. 71 For example, even racial
slurs by coworkers that were not all directed toward a plaintiff or that she did not hear,
could be used to establish an employer's liability for "working environment harassment"
against her, if the slurs were so egregious, numerous, and concentrated that they
amounted to a campaign of harassment for which the employer was liable, based on its
culpability for failing to discover and correct such conduct. 72
However, employers were not sufficiently knowledgeable about, and, therefore, not
responsible for, coworker harassment where:
the alleged harassment was not something of which the employer should have been
aware, and the employee never complained about it to anyone; 73
supervisory personnel had no actual knowledge of the alleged harassment, which
consisted of behavior and comments susceptible to innocent interpretations; 74
sexual actions observed by management, such as flirting with and touching women
employees, were not sufficiently pervasive or severe, and the claimant never complained
of those acts to management. 75
976 ----Coworker "hostile work environment" harassment [SUPPLEMENT]
Practice Aids: Pornography, equality, and a discrimination-free workplace: a
comparative perspective, 106 Harv LR 1075 (1993).

Beyond pinups: Workplace restrictions on the private consumption of pornography, 23
Hast CL Q 1:271 (1995).
Case authorities:
County employee may bring 1983 action against doctor employed by county hospital,
where employee was skilled laborer at county hospital, supervisor and co-workers
harassed employee because she was female, employee was injured on job, supervisor told
doctor to put employee back to work and doctor did so, in spite of contrary advice from
employee's personal doctor, and county doctor twisted employee's injured arm, because
county doctor, who controlled employee's return to work after injury, exercised indirect
managerial control over employee, and because, like employee, he worked for county
hospital, he was co-worker. Raiser v O'Shaughnessy (1993, ND Ill) 830 F Supp 1134, 63
BNA FEP Cas 769.
Footnotes
Footnote 66. 954.
Footnote 67. 29 CFR 1604.11(d).
As to an employer's need to take immediate and appropriate corrective action, see 981.
Footnote 68. St. J. Enriquez v Transit Mixed Concrete Co. (1980, CD Cal) 492 F Supp
Footnote 69. 974.
CCH EPD 31796.
Footnote 72. Busby v Orlando (1991, CA11) 931 F2d 764, 55 BNA FEP Cas 1466, 56
CCH EPD 40860.
Footnote 73. Robinson v E. I. Du Pont de Nemours & Co. (1979, DC Del) 33 BNA FEP
Cas 880.
Footnote 74. Scott v Sears, Roebuck & Co. (1985, ND Ill) 605 F Supp 1047, 37 BNA
FEP Cas 878, 120 BNA LRRM 2166, 38 CCH EPD 35707, affd (CA7) 798 F2d 210,
41 BNA FEP Cas 805, 1 BNA IER Cas 609, 41 CCH EPD 36439.
Footnote 75. Valdez v Church's Fried Chicken, Inc. (1988, WD Tex) 683 F Supp 596, 47
BNA FEP Cas 1155.
977 Nonemployee "hostile work environment" harassment

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An employer may be responsible for the "hostile work environment" harassment 76 of
employees by nonemployees, when it knows or should have known (through supervisory
agents) of such actions and fails to take corrective action. 77 The extent of the
employer's control and legal responsibility for the third persons committing the
harassment is the key to evaluating its responsibility for such acts. 78
Employers have been held liable for employees harassed by nonemployees where:
a waitress specifically informed a restaurant owner of a customer's unwelcome sexual
conduct; 79
a female lobby attendant was made to wear a sexually provocative costume which
engendered harassment by visitors, and she complained about it to the employer. 80
977 ----Nonemployee "hostile work environment" harassment [SUPPLEMENT]
Practice Aids: Employer liability for the sexually harassing actions of its customers,
19 Emp Rel LJ 227 (1994).
Sexual harassment of employees by non-employees: When does the employer become
liable? 21 Pepp LR 447 (1994).
Case authorities:
In order to establish hostile work environment claim, which is cognizable under ADEA,
plaintiff must show that she was member of protected class, that she was subject to
unwelcome harassment, that harassment was prompted solely because of her age, that
harassment affected term, condition or privilege of her employment, and existence of
respondeat superior liability. Dunn v Medina Gen. Hosp. (1996, ND Ohio) 917 F Supp
1185.
Employer of aggrieved individual can be liable under Title VII for sexual harassment
conducted by non-employee, if employer knew or should have known of harassment.
Menchaca v Rose Records (1995, ND Ill) 67 BNA FEP Cas 1334.
Footnotes
Footnote 76. 954.
Footnote 77. 981.
Footnote 78. 29 CFR 1604.11(e).

Footnote 80. EEOC v Sage Realty Corp. (1981, SD NY) 507 F Supp 599, 24 BNA FEP
Cas 1521, 25 CCH EPD 31529.
(4). Employer's Obligations to Prevent or Respond to Harassment [978-986]
978 Generally
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Employers have a duty to take all steps necessary to prevent sexual and other forms of
harassment under Title VII, including affirmatively raising the subject, expressing strong
disapproval of harassment, developing appropriate sanctions for it, 81 informing
employees of their rights under the law, and sensitizing employees to the problem of
harassment. 82
An employer may be held responsible for "hostile work environment" harassment 83
where it reasonably should have anticipated that an employee would become a victim and
failed to prevent it. However, an employer may avoid violating Title VII where it takes
reasonable steps under the circumstances to prevent harassment. 84
An employer must reconcile its duty to prevent harassment under Title VII with its
obligations under other federal labor relations laws. Therefore, while the National Labor
Relations Act's establishment of a union's exclusive representation rights does not
prohibit the involvement of nonunion advisors in a procedure designed to eradicate
workplace racial harassment, the employer must create and operate such a procedure that
is faithful both to its Title VII and NLRA obligations. 85
Practice Aids: Reinstatement of the sexual harasser: the conflict between federal labor
law and Title VII, 18 Emp Rel LJ 617 (1993).
Sexual harassment plaintiffs: Does it matter how they spoke and dressed? 19 Emp Rel LJ
655 (1994).
Litigating federal sexual harassment cases: The link between "sexual harassment" and the
standard of reasonableness, 13 Rev Lit 331 (1994).
Title VII prohibitions against hostile environment sexual harassment and the First
Amendment: No collision in sight, 47 Rutgers LJ 2:461 (1995).
A critical analysis of the two-pronged perspective for viewing a hostile environment in

sexual harassment cases, 24 Southw U LR 2:303 (1995).
Hostile environments and the First Amendment, 46 SC LR 3:471 (1995).
Combatting sexual harassment in the workplace without risking a wrongful discharge
lawsuit: An employer's dilemma? 42 U Kan LR 437 (1994).
Case authorities:
Since local union can be held liable under Title VII for acts of employees or officers
under its control, plaintiff's Title VII claim against local was not subject to dismissal,
because plaintiff had alleged that parties under control of local engaged in racial and sex
discrimination. Purnell v Dieso (1995, SD NY) 67 BNA FEP Cas 1422.
County supervisors would not be held liable for deprivation of county employee's
substantive due process rights resulting from actual physical assaults that allegedly
occurred during co-workers' general course of harassment, where no evidence indicated
supervisors authorized or condoned physical assaults or known pattern of comparable
conduct. McWilliams v Fairfax County Bd. of Supervisors (1996, CA4 Va) 72 F3d 1191,
Agency or respondeat superior element of Title VII claim is met only when employer
knew, or should have known, of harassment in question, and failed to take prompt
remedial action. Indest v Freeman Decorating (1996, ED La) 70 BNA FEP Cas 192.
U.S. employer did not violate Title VII by failing to take appropriate investigative or
remedial action in response to plaintiff's complaints of sexual harassment that occurred
while she was employed in France, since employer has no obligation under Title VII to
provide remedy where complained of conduct is not covered by statute; underlying
conduct in case did not violate Title VII because it occurred outside territorial U.S.
before Civil Rights Act of 1991 took effect. Arno v Club Med (1994, CA9 Cal) 22 F3d
1464, 94 CDOS 3182, 94 Daily Journal DAR 6056, 64 BNA FEP Cas 1018, 64 CCH
EPD 43014.
Fire department's sexual harassment policy violates captain's rights to private possession,
reading, and consensual sharing of certain sexually oriented magazine, because (1) policy
bans reading of magazine at time when firefighters' behavior is otherwise unrestricted,
(2) policy permits no window for captain's exercise of his freedom of expression, and (3)
fire station operates as captain's de facto home for several consecutive days. Johnson v
County of Los Angeles Fire Dep't (1994, CD Cal) 865 F Supp 1430, 94 Daily Journal
Employees' claim for violation of 42 USCS 1981 against employer, alleging that
employer was aware of another employee's behavior that created racially hostile
environment and failed to take steps to remedy situation, is dismissed, where supervisor
took immediate investigatory steps when complaint was lodged and confronted
employee, who apologized to plaintiffs and was fired 12 days later, because liability will
not lie under these facts. Hodges v Washington Tennis Serv. Int'l (1994, DC Dist Col)
870 F Supp 386, 66 BNA FEP Cas 1041.
Sexual harassment claim of former confidential executive secretary to law school dean
will not be dismissed summarily, where secretary claims that dean "engaged in repeated
and consistent pattern of sexual harassment that included explicit remarks and sexual
innuendo, fondling his sexual organs in her presence, offensive and unwanted touching,
and other harassing and degrading acts," because claims under Title VII (42 USCS
2000e et seq.) and Title IX (20 USCS 1681 et seq.) will be analyzed similarly, and for
employer to avoid liability for its supervisor's sexual harassment creating hostile work
environment, employer must show not only that it lacked actual or constructive
knowledge of harassment, but also that it had effective and responsive system in place at
time to remedy harassment. Pinkney v Robinson (1996, DC Dist Col) 913 F Supp 25, 70
BNA FEP Cas 1136.
Decision of board denying benefits to female claimant who was sexually harassed would
be reversed and benefits awarded where board erred in finding that employer was not
aware of harassment by coworker who later became claimant's regional manager and
who again made sexually explicit comments to claimant while having direct authority
over her. Record indicated that claimant's immediate supervisor was present and
witnessed second incident of sexually explicit comments. Because immediate supervisor
observed, but did not react to, blatant harassment, claimant had every reason to believe
that reporting that incident would have produced no satisfactory result. Fact that
upper-level employees were perpetrating and witnessing harassment also supported
claimant's reticence to go over head of harassing regional manager. Knowledge of
harassment by claimant's immediate supervisor would be imputed to employer. Peddicord
v Unemployment Compensation Bd. of Review (1994, Pa Cmwlth) 647 A2d 295.
Employers are liable under Title VII, in accordance with common law agency principles,
for acts of employees committed in furtherance of employer's business; however,
employers are not liable under Title VII for every discriminatory act committed by
employees in workplace. Long v Eastfield College (1996, CA5 Tex) 88 F3d 300, 71
BNA FEP Cas 750, reh den (1996, CA5 Tex) 1996 US App LEXIS 22021.
Footnotes
Footnote 81. 986.
Footnote 82. 29 CFR 1604.11(f).
Footnote 83. 954.
BNA FEP Cas 96; Croker v Boeing Co. (Vertol Div.) (1977, ED Pa) 437 F Supp 1138,
15 BNA FEP Cas 165, 16 CCH EPD 8185, affd, en banc (CA3) 662 F2d 975, 26 BNA
FEP Cas 1569, 27 CCH EPD 32160.
Footnote 85. Harris v International Paper Co. (1991, DC Me) 765 F Supp 1529, 57 CCH
EPD 41132, 120 CCH LC 10960.
979 Effect of policy against harassment

View Entire Section
The mere existence of an employer's policy against harassment in the workplace does not
provide a complete defense to a claim of "hostile work environment" harassment. 86
While the existence of such policies is relevant in assessing an employer's responsibility,
87 it does not insulate the employer from Title VII liability, especially where a general
nondiscrimination policy does not specifically address the type of harassment involved.
88
While an employer should let employees know that unlawful harassment will not be
tolerated, and take all reasonable measures to enforce this policy, 89 it will not be
responsible for "work environment" harassment where appropriate responsive measures
are taken. 90
Footnotes
Footnote 86. 954.
Footnote 89. Snell v Suffolk County (1986, CA2) 782 F2d 1094, 39 BNA FEP Cas 1590,
39 CCH EPD 35836.
Footnote 90. Bell v St. Regis Paper Co., Container Div. (1976, ND Ohio) 425 F Supp
1126, 16 BNA FEP Cas 1429.
980 Effect of harassment grievance procedure

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The existence and availability of avenues of complaint and redress are part of an
employee's work environment, and to the extent that the employer makes them effective,
91 they may provide a defense to "hostile work environment" harassment. 92
A harassment grievance procedure may not be considered available or effective if an
employee fails to utilize it for legitimate reasons. For example, where the grievance
procedure required the victim to first complain to her supervisor, who was the perpetrator
of the harassing conduct at issue, the employer's procedures were not calculated to
encourage victims of harassment to come forward under those circumstances. 93
A grievance procedure will only protect an employer from responsibility for harassment
94 when it specifically applies to harassment claims, is posted or otherwise publicized,
and is applicable to all employees. Thus, a grievance procedure contained in a collective
bargaining agreement that did not clearly allow the grievant to pursue a claim
independently of the union shop committee was not effective for this purpose. 95
980 ----Effect of harassment grievance procedure [SUPPLEMENT]
Practice Aids: "English-only" in the workplace and Title VII disparate impact: The
Ninth Circuit's misplaced application of "ability to comply" should be rejected in favor
of the EEOC's business necessity test, 25 Southw U LR 2:407 (1996).
Case authorities:
Effective grievance procedure (one that is known to victim and that timely stops
harassment) shields employer from Title VII liability for hostile environment. Bouton v
BMW of N. Am. (1994, CA3 NJ) 29 F3d 103.
Footnotes
Footnote 91. 983.
As to "hostile work environment" harassment generally, see 954.
A discussion of harassment grievance procedures as part of conducting an effective
investigation of harassment complaints is located at 984.
Footnote 95. Morris v American Nat. Can Corp. (1989, ED Mo) 730 F Supp 1489, 52
BNA FEP Cas 210, affd in part and revd in part on other grounds (1991, CA8) 952 F2d
981 When must an employer take corrective action

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Upon learning of harassment in the workplace, an employer must take prompt or
immediate 96 and effective 97 corrective action, 98 that is reasonable under the
circumstances, to avoid responsibility for the conduct of others. 99 Whether an
employer has fulfilled this responsibility depends on the gravity of the harm suffered, the
nature of the work environment, the resources available to the employer, 1 and a
consideration of immediate business demands. 2
Where supervisory personnel acquiesced or participated in unlawful harassment, the
burden on an employer to take corrective action is especially heavy, 3 since there is an
affirmative duty under Title VII to deal effectively with personnel who have committed
harassment. 4
While an employer will be relieved of liability for supervisory "hostile work
environment" 5 harassment if it takes prompt and effective corrective action, 6
employer inaction encourages the belief among employees that individual acts of
unlawful harassment will go unpunished. 7 Therefore, an employer's fear that strong
action in response to serious and pervasive racial harassment would only "stir up" further
racial animosity was not an excuse for avoiding its responsibility. 8 A university also
was liable for "hostile work environment" harassment when it failed to act on an
investigative panel's recommendations concerning a faculty member's allegations that she
received sexually harassing graffiti, cartoons, and anonymous letters, and was subjected
to demeaning jokes and the shouted epithets of a drunken colleague. 9
In the case of a supervisor's harassment that results in an employee's loss of a "tangible
job benefit", 10 whether corrective action will eliminate employer liability is less clear.
Since courts hold an employer strictly liable for such harassment, 11 subsequent
corrective action has been found to only mitigate damages, not to affect an employer's
liability. 12
981 ----When must an employer take corrective action [SUPPLEMENT]
Practice Aids: Examining the relationship between Title VII's sexual harassment
prohibitions and the First Amendment's free speech provisions: Is there a conflict? 46
Lab LJ 3:175 (1995).
Case authorities:
Claim under 1983 of employee of state university against university officials and other
employees is not dismissed, where employee alleged that one defendant actively harassed
her and discriminated against her on basis of sex and others were made aware of conduct
and, as supervisors, did nothing in response, because reasonable persons would have
known that conduct violated employee's constitutional rights and defendants are therefore
not entitled to qualified immunity. Kelley v Troy State Univ. (1996, MD Ala) 923 F Supp
1494.
Footnotes
Footnote 96. 982.

Footnote 97. 983.
Footnote 99. Second CircuitSnell v Suffolk County (1986, CA2) 782 F2d 1094, 39
Third CircuitCroker v Boeing Co. (Vertol Div.) (1977, ED Pa) 437 F Supp 1138, 15
BNA FEP Cas 165, 16 CCH EPD 8185, affd, en banc (CA3) 662 F2d 975, 26 BNA
FEP Cas 1569, 27 CCH EPD 32160.
Eighth CircuitEEOC v Murphy Motor Freight Lines, Inc. (1980, DC Minn) 488 F
An employer's obligation to take corrective action in the form of an effective
investigation of harassment complaints is separately discussed at 984. An employer's
obligation to discipline harassers is discussed at 986.
39 CCH EPD 35836.
Footnote 2. Dornhecker v Malibu Grand Prix Corp. (1987, CA5) 828 F2d 307, 44 BNA
FEP Cas 1604, 44 CCH EPD 37557.
Footnote 3. Weiss v U.S. (1984, ED Va) 595 F Supp 1050, 36 BNA FEP Cas 1, 36 CCH
EPD 34947.
Footnote 4. Sixth CircuitAnderson v Methodist-Evangelical Hospital (1971, WD Ky) 4
BNA FEP Cas 33, 3 CCH EPD 8282, affd (CA6) 464 F2d 723, 4 BNA FEP Cas 987, 4
CCH EPD 7901.
Seventh CircuitMunford v James T. Barnes & Co. (1977, ED Mich) 441 F Supp 459,
EEOCEEOC Decision No. 72-0779 (1971) 4 BNA FEP Cas 317.
Footnote 5. 954.
Footnote 6. Ferguson v E. I. Du Pont de Nemours & Co. (1983, DC Del) 560 F Supp
Footnote 7. Patterson v McLean Credit Union (1990, MD NC) 729 F Supp 35, 51 BNA
FEP Cas 1473.
Footnote 8. EEOC v Murphy Motor Freight Lines, Inc. (1980, DC Minn) 488 F Supp
Footnote 9. Jew v University of Iowa (1990, SD Iowa) 749 F Supp 946, 57 BNA FEP
Cas 647, 55 CCH EPD 40443.

Footnote 10. 953.
Footnote 11. 975.
CCH EPD 32993.
982 Requirement that corrective action be prompt or immediate

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Go to Supplement
When an employer has a duty to take corrective action in response to harassment, 13 it
must be "prompt" 14 or "immediate." 15
The severity 16 of the harassment may affect how swiftly action must be taken. For
instance, where sexual harassment involved threats by the victim's superior, an employer
was liable for harassment that continued one day after the plaintiff informed management
of the conduct. 17
Whether an employer acted swiftly enough to avoid responsibility also depends on how
and when the employer first became aware of an employee's "hostile work environment"
harassment 18 allegations against her coworkers. 19
982 ----Requirement that corrective action be prompt or immediate
[SUPPLEMENT]
Case authorities:
Agency or respondeat superior element of Title VII claim is met only when employer
knew, or should have known, of harassment in question, and failed to take prompt
remedial action. Indest v Freeman Decorating (1996, ED La) 70 BNA FEP Cas 192.
Footnotes
Footnote 13. 981.
Footnote 14. Tomkins v Public Service Electric & Gas Co. (1977, CA3) 568 F2d 1044,
Footnote 15. 29 CFR 1604.11(d), 1604.11(e).
Footnote 16. 969.
Footnote 17. Coley v Consolidated Rail Corp. (1982, ED Mich) 561 F Supp 645, 34 BNA
FEP Cas 129.
Footnote 18. 954.
Footnote 19. Taylor v Faculty-Student Asso. of State University College, Inc. (1986, WD
NY) 40 BNA FEP Cas 1292, 41 CCH EPD 36471.
983 Requirement that corrective action be effective

View Entire Section
The EEOC 20 and the courts 21 agree that the employer's liability for "hostile work
environment" harassment 22 engendered by nonsupervisory employees 23 and
nonemployees, 24 can be avoided by subsequent effective corrective action by the
employer.
Effective corrective action makes the victim whole, and prevents the misconduct from
recurring. 25 Thus, an employer was responsible for visitors' sexual harassment of an
employee where it required her to wear a sexually revealing outfit, and attempted to
address her concerns only by altering and lengthening the outfit, which did not stop the
harassment. When she persisted in her complaints, and no further alterations or
exceptions to the uniform requirement were made, the corrective action did not
reasonably address the harassment problem. 26
Likewise, although the employer notified supervisors that racial incidents would not be
tolerated 27 and would subject them to disciplinary action, instituted a sensitivity
training program, and had an attorney lecture employees on affirmative action, these
actions were not effective because the sensitivity film did not address the employer's
problems of racial discrimination, and the attorney's lecture was only obliquely related to
the substance of the plaintiff's harassment protest. 28 Effective corrective action results
in the elimination of the specific harassment that the employer has been found to have
created or permitted. Therefore, the employer cannot justify unclear or ineffective action
by citing its efforts to eradicate other forms of harassment for which it was not liable.
However effective an employer's voluntary efforts to eliminate unproven harassment
from the workplace, they cannot relieve it of a court-ordered obligation to take clear and
effective corrective action against proven harassment. 29
A determination of the effectiveness of an employer's response ultimately depends on its
results. Simply because an employer has spent many hours responding to allegations of
harassment by a coworker does not mean that its response is effective. What is deemed
effective also may change if the harassment does not stop. For example, when harassment
continued after the employer verbally warned and counselled the harasser several times,
the employer's response was not sufficient because it was not effective in stopping the
harassment. While counseling might have been a sufficient first step, the employer had a
duty to impose stronger measures if the harassment continued. 30
An employer's corrective action attempt that makes a victim of sexual harassment worse
off is automatically ineffective. For example, a transfer that reduces the victim's
remuneration, increases her inconvenience or discomfort of work, or impairs prospects
for promotion, would make the victim worse off. However, where an employee was on
temporary assignment to the unit in which she encountered the harassment, returning her
to her regular employment rather than transferring the offending supervisor did not make
her worse off. 31 The Ninth Circuit also finds that punishing a victim of harassment, by
making her work in a less desirable location, does not constitute the corrective action
required of an employer. 32 Furthermore, terminating the victim of racial harassment
cannot constitute effective corrective action. 33
Footnotes
Footnote 20. 29 CFR 1604.11(d), 1604.11(e).
Footnote 21. Greene v Teledyne Electronics (1991, CA9) 1991 US App LEXIS 13654;
Barrett v Omaha Nat. Bank (1984, CA8) 726 F2d 424, 35 BNA FEP Cas 593, 33 CCH
EPD 34132.
Footnote 22. 954.
Footnote 23. 976.
Footnote 24. 977.
Footnote 26. EEOC v Sage Realty Corp. (1981, SD NY) 507 F Supp 599, 24 BNA FEP
Cas 1521, 25 CCH EPD 31529.
Footnote 27. 979.
Footnote 28. Ways v Lincoln (1989, CA8) 871 F2d 750, 49 BNA FEP Cas 865, 49 CCH
EPD 38908.
Footnote 29. Harris v International Paper Co. (1991, DC Me) 765 F Supp 1529, 57 CCH
EPD 41132, 120 CCH LC 10960.
Footnote 30. Intlekofer v Turnage (1992, CA9) 973 F2d 773, 59 BNA FEP Cas 929, 59
CCH EPD 41761.
Footnote 31. Guess v Bethlehem Steel Corp. (1990, CA7) 913 F2d 463, 53 BNA FEP
Cas1547, 54 CCH EPD 40251.
EPD 40520.
Footnote 33. EEOC Decision No. YSF 9-108 (1973) CCH EEOC Decisions 6030.
984 What is an effective investigation of a harassment complaint

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Go to Supplement
Upon learning of harassment in the workplace, an employer, as part of its duty to take
corrective action, 34 should promptly and thoroughly investigate it, 35 and the courts
find that there is an affirmative duty under Title VII to do so. 36
Employers that have knowledge of harassment allegations and do not investigate may
violate Title VII, 37 because such a failure to act implies tacit approval of the
discrimination by the employer. 38 Even the victim's lack of cooperation may not
relieve an employer of its investigation responsibilities. For example, when a sexual
harassment complainant declined a formal investigation, she did not necessarily relieve
the employer of its responsibility, since the employee might have expected an informal
investigation. 39
An effective investigation must be fair, complete, and pursuant to formal guidelines if the
allegations are determined to be unfounded. 40 Under those circumstances, no further
action is needed when the harassment allegations are not substantiated. 41
A harassment investigation may not be effective to avoid liability if it does not go beyond
the alleged harasser's denial of serious allegations of harassment, since such
investigations often lack the "depth and scope" necessary to satisfy the employer's
obligations in this respect. 42 For example, an employer's investigation of a racial slur
was inadequate where it merely accepted the supervisor's denial without speaking to any
witnesses of the incident, or conducting any other inquiry. 43
Any incomplete investigations will not be effective enough to relieve an employer of
liability for "hostile work environment" harassment, 44 as when an employer
investigated only a fraction of the racial harassment reported, 45 or failed to investigate a
specific reported incident of harassment. 46
When an employer deviates from its standard investigation procedures in investigating an
employee's harassment complaint, the different procedure may support a conclusion that
the response to the harassment charge was inadequate. 47
984 ----What is an effective investigation of a harassment complaint
[SUPPLEMENT]
Practice Aids: Engels, Voluntary Affirmative Action in Employment for Women in
Minorities Under Title VII of the Civil Extending Possibilities for Employers to
Engage in Preferential Treatment to Achieve Equal Opportunity Employment. 24 John
Marsh LR 731, Summer, 1991.
Comment: Affirmative Action: Will Justice O'Connor Author its End? 22 U Tol LR 805,
Spring, 1991.
Footnotes
Footnote 34. 981.
Footnote 36. Sixth CircuitAnderson v Methodist-Evangelical Hospital (1971, WD Ky)
4 BNA FEP Cas 33, 3 CCH EPD 8282, affd (CA6) 464 F2d 723, 4 BNA FEP Cas 987,
4 CCH EPD 7901.
Seventh CircuitMunford v James T. Barnes & Co. (1977, ED Mich) 441 F Supp 459,
EEOCEEOC Decision No. 72-0779 (1971) 4 BNA FEP Cas 317.
Footnote 37. Robson v Eva's Super Market, Inc. (1982, ND Ohio) 538 F Supp 857, 30
BNA FEP Cas 1212.
Footnote 38. Munford v James T. Barnes & Co. (1977, ED Mich) 441 F Supp 459, 17
Cas 179, 50 CCH EPD 39106.
Footnote 40. Neidhardt v D.H. Holmes Co. (1979, ED La) 21 BNA FEP Cas 452, affd
Footnote 41. Howard v National Cash Register Co. (1975, SD Ohio) 388 F Supp 603, 15
Footnote 42. Heelan v Johns-Manville Corp. (1978, DC Colo) 451 F Supp 1382, 20 BNA
Footnote 44. 954.
39 CCH EPD 35836.
Footnote 46. Ways v Lincoln (1989, CA8) 871 F2d 750, 49 BNA FEP Cas 865, 49 CCH
EPD 38908.
Footnote 47. Rochon v Atty. Gen. of U.S. (1990, DC Dist Col) 52 BNA FEP Cas 1157.
985 Types of effective corrective action, generally

View Entire Section

When an employer is obligated under Title VII to take corrective action in response to
harassment at work, 48 courts have found the response to be effective in a variety of
situations. For example, an employer has taken appropriate and effective corrective
action to address unlawful harassment in the workplace where:
it promptly acted to discourage racial incidents once it learned of them, reprimanding
those responsible and noting the incidents in the offenders' files; 49
the victim was given a leave of absence and the offending manager was discharged after
he had rejected a demotion and relocation; 50
the alleged victim was offered a comparable job at the same rate of pay in a different
location; 51
it reprimanded the offending party, placed him on probation for 90 days, and warned
him he would be fired for further misconduct, and also reprimanded a supervisor who
was present but did not come to the harassed employee's aid; 52
it conducted a thorough investigation that determined that no sexual harassment had
occurred, but reiterated its policy against sexual harassment, continued to conduct
seminars for managerial personnel about sexual harassment, and transferred the
complainant to a different department, with no decrease in pay and with the
understanding that she could return to her former position if she wished; 53
it immediately removed pornographic photographs from all public areas and spaces
throughout its plant, in response to a female employee's complaint about such displays.
54
The EEOC has offered a specific example of effective corrective action with respect to a
particular employer faced with a complaint of harassment by nonemployees. 55 The
Commission states that where male customers sexually harass a waitress, and the
employer is aware of such conduct, it may rectify the situation effectively by switching
table assignments immediately, and making financial arrangements that do not cause her
to lose the amount of a tip she otherwise could have earned. 56
Footnotes
Footnote 48. 981.
Footnote 49. Hamilton v Rodgers (1986, CA5) 791 F2d 439, 40 BNA FEP Cas 1814.
Footnote 52. Barrett v Omaha Nat. Bank (1984, CA8) 726 F2d 424, 35 BNA FEP Cas
593, 33 CCH EPD 34132.
Footnote 53. Djallah v East Bay Municipal Utilities Dist. (1991, ND Cal) 1991 US Dist
LEXIS 15913.
Footnote 54. Tunis v Corning Glass Works (1990, SD NY) 747 F Supp 951, 57 BNA
Cas 1224.
Footnote 55. 977.
Footnote 56. EEOC Compliance Manual 615.3(e).
986 Discipline as corrective action

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When an employer has an obligation to respond to harassment, 57 disciplinary action
against the perpetrators of the harassment may be necessary in order for the response to
be effective. 58
However, disciplinary action against harassers has not been found to constitute effective
correction action, and correspondingly did not relieve the employer of its responsibility
for the harassment 59 when:
the employer only instructed the supervisory harasser to limit his time in the victim's
work area, but failed to order him to cease the harassment, and did not monitor his
behavior to establish whether the harassment had ceased; 60
a harassing supervisor was transferred with a promotion instead of being disciplined; 61
an employee was merely told to stop making sexual comments, but was not reprimanded
and did not have the incidents notated in his personnel file; 62
the discipline imposed by the employer was rarely commensurate with the seriousness
of the offense, demonstrating that the employer condoned, encouraged, and was liable for
the harassment. 63
Title VII does not always require employers to fire employees who have engaged in
sexual harassment, 64 and an employer need not do so if the alleged incidents were
denied and uncorroborated after effective investigation. 65 However, when an employee
has engaged in particularly severe or pervasive harassment, his mere presence may create
a hostile working environment that would require the employer to remove him from the
workplace, and an inability to schedule harassers to work at different locations or times
may leave the employer with no alternative but dismissal. 66
An employer's inadequate investigation can engender claims of discrimination by

supervisors and employees who are disciplined as a result of harassment allegations
against them. Thus, where an employer sides with one employee over another without
adequately investigating, any difference in the race or sex of the respective employee
may raise a discriminatory inference with respect to the disciplinary action taken. 67
Another plaintiff discharged for alleged sexual harassment failed to state a prima facie
case of sex discrimination by his mere allegations that the employer failed to fairly
investigate the harassment charges and dismissed him because he was a male, based on
only his conjecture that the employer would not have dismissed a female accused of the
same infraction against another female, because it probably would not be concerned
about being sued for sexual harassment under those circumstances. 68
An employer may lawfully terminate an alleged harasser, especially if he has a past
history of harassment, 69 or has violated an express company policy against harassment,
70 as long as the investigation was not "so inadequate" to raise doubts about the
employer's good faith with regard such discipline. 71
Footnotes
Footnote 57. 981.
Footnote 58. 983.
Examples of effective corrective disciplinary action in conjunction with other types of
responsive efforts by the employer are discussed at 985.
FEP Cas 1545, 37 CCH EPD 35375.
Footnote 61. Toscano v Nimmo (1983, DC Del) 570 F Supp 1197, 32 BNA FEP Cas
1401, 32 CCH EPD 33848.
Cas 179, 50 CCH EPD 39106.
Footnote 64. Barrett v Omaha Nat. Bank (1984, CA8) 726 F2d 424, 35 BNA FEP Cas
593, 33 CCH EPD 34132.
EPD 40520.
Footnote 67. Duchon v Cajon Co. (1986, CA6) 791 F2d 43, 40 BNA FEP Cas 1432, 27
Footnote 68. Coen v Elco Chevrolet (1991, ED Mo) 756 F Supp 414, 54 BNA FEP Cas
1358, 56 CCH EPD 40619, affd without op (CA8) 950 F2d 728, 58 BNA FEP Cas 64.
Footnote 69. Johnson v International Minerals & Chemical Corp. (1986, DC SD) 40
BNA FEP Cas 1651, 122 BNA LRRM 2652, 42 CCH EPD 36738.
Footnote 70. Johnson v Perkins Restaurants, Inc. (1987, CA8) 815 F2d 1220, 43 BNA
Footnote 71. French v Mead Corp., Mead Forms Div. (1983, SD Ohio) 33 BNA FEP Cas
635, affd (CA6) 758 F2d 652, 37 BNA FEP Cas 1408, cert den 474 US 820, 88 L Ed 2d
56, 106 S Ct 68, 38 BNA FEP Cas 1727.
b. Other Work Rules, Conditions, and Policies [987-1022]
(1). In General [987-993]
987 Generally
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Go to Supplement
Employers have a right to establish reasonable policies to govern the behavior of
employees and working conditions, but employer policies nonetheless are regualted by
federal and state 72 job discrimination laws to ensure that they are not applied in a
biased manner. Employers' work rules are subject to proscriptions against job
discrimination as "terms and conditions" of employment. 73 However, if the policies
are not arbitrary, unreasonable, or capricious, employees must comply with them as
An employer's increased supervision and control over an employee's work is not a
violation of the ADEA unless it materially affects the terms, conditions, and privileges of
employment. Increased supervision did not materially alter an employer's working
environment where he admitted that the type of work he was doing when his supervision
was increased typically required additional supervision, and it was not uncommon for a
supervisor from one group to inspect the work of another supervisor's employees. 75
Practice Aids: Can Big Brother legally watch what you are doing? An examination of
workplace surveillance and the laws that govern it, 158 NJ Law 1:28 (1994).
Footnotes
Footnote 72.
State Aspects State job discrimination laws frequently deal with miscellaneous work
environment matters such as speak only English rules, segregated facilities and
functions, and the unequal distribution of equipment or services to employees. These
state laws are discussed in the Employment Coordinator EP-22973 et seq.
Footnote 74. Quarles v North Mississippi Retardation Center (1978, ND Miss) 455 F
Supp 52, affd without op (CA5) 580 F2d 1051.
Discharge or discipline for violation of work rules is discussed at 1055 et seq.
Footnote 75. Hess v Illinois Bell Tel Co (1989, ND Ill) 1989 US Dist LEXIS 3654.
988 Speak only in English rules

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Go to Supplement
According to the EEOC, employees can be required to speak only in English at work and
at certain times if the employer shows that the requirements is justified by business
necessity, 76 if it clearly informs employees of the circumstances under which they will
be required to speak only in English, and if the consequences of violating the rule are
also made clear. Without such notice, an adverse employment decision against an
individual, based on a violation of the rule, will be considered evidence of discrimination.
77
The EEOC's Title VII national origin discrimination guidelines distinguish between a
complete and a partial prohibition against speaking a language other than English at
work, since the former rule is more burdensome to an individual whose other primary
language is often an essential national origin characteristic. Totally forbidding the use of
another language by such a person is likely to result in a discriminatory work
environment, 78 characterized by an atmosphere of inferiority, isolation and
intimidation. 79
More limited speak only in English rule have been allowed under Title VII where
communication in English is necessary to enable employees to carefully follow particular
dangerous or sensitive tasks such as surgery, the drilling of oil wells, dealing with
emergencies, and handling volatile materials. 80 A speak only in English rule has also
been permitted under Title VII when it was limited to communication with the public, so
that a radio station's requirement that an announcer speak only English over the air was
found to be reasonably related to the station's business discretion in targetting a particular
ethnic audience in its programming. 81

The fact that an employee is bilingual and can comply with a speak only in English rule
is a defense to an intentional discrimination claim when the employee's noncompliance is
a matter of personal preference and the rule is otherwise lawful. 82
When the rule
itself is unlawful, the employee's ability to comply is irrelevant. 83
988 ----Speak only in English rules [SUPPLEMENT]
Practice Aids: English-only rules in the workplace, 27 Ariz St LJ 1:277 (1995).
The misplaced application of English-only rules in the workplace, 14 Chicano-Latino LR
67 (1994).
English-only rules in the workplace: Examining the need to balance the burdens of proof
under disparate impact analysis, 7 DePaul Bus LJ 1:223 (1994).
English-only work rules: Per se discriminatory or an employer's prerogative? 68 Fla BJ
10:54 (1994).
Whose proof? Deference to EEOC guidelines on disparate impact discrimination analysis
of "English-only" rules, 29 Ga LR 2:539 (1995).
Speaking in tongues: Whose rights at stake? Yniguez v. Arizonans for Official English ,
69 F3d 920, 19 Harv J LPP 2:634 (1996).
English only rules: Valid business policy or discrimination? 45 Lab LJ 367 (1994).
Keeping workplace language rules out of the courts, 107 Los Angeles Daily J 129:6
(1994).
Enforcing the Equal Employment Opportunity Commission guidelines on discrimination
because of national origin: The overextension of English-only rules in Garcia v. Spun
Steak Co , 79 Minn LR 2:391-423 (1995).
"English-only" in the workplace and Title VII disparate impact: The Ninth Circuit's
misplaced application of "ability to comply" should be rejected in favor of the EEOC's
business necessity test, 25 Southw U LR 2:407 (1996).
Civil rightsThe scope of Title VII protection for employees challenging English-only
rules Garcia v. Spun Steak Co. , 998 F2d 1480 (1993), 67 Temp LR 393 (1994).
English-only rules and the role of perspective in title VII claims, 73 Tex LR 4:871
(1995).
Language discrimination and English-only rules in the workplace: The case for
legislative amendment of Title VII, 27 Tex Tech LR 1:33 (1996).
Court rejects EEOC guideline for English-only workplace rules, 29 Trial 10:88 (1993).
Footnotes
Annotation: Requirement that employees speak English in workplace as
discrimination in employment under Title VII of Civil Rights Act of 1964 (42 USCS
secs. 2000e et seq.), 90 ALR Fed 806.
Law Reviews: English-Only Rules and "Innocent" Employers: Clarifying National
Origin Discrimination and Disparate Impact Theory Under Title VII. 74 Minn. L. Rev.
387 (1989).
Footnote 81. Jurado v Eleven-Fifty Corp. (1987, CA9) 813 F2d 1406, 43 BNA FEP Cas
870, 42 CCH EPD 36960, 106 CCH LC 12310.
Footnote 82. Gracia v Gloor (1980, CA5) 618 F2d 264, 22 BNA FEP Cas 1403, 23 CCH
1220, 24 CCH EPD 31478; Jurado v Eleven-Fifty Corp. (1987, CA9) 813 F2d 1406, 43
Footnote 83. Gutierrez v Municipal Court of Southeast Judicial Dist. (1988, CA9) 838
F2d 1031, 51 BNA FEP Cas 435, 45 CCH EPD 37726, vacated on other grounds (US)
989 Unsanitary restroom facilities

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While an employer's unsanitary restroom facilities will be more likely to raise a
workplace safety issue, it may create a job discrimination violation under certain
conditions, such as when its health and safety practices place a heavier burden on one
gender, contrary to Title VII's sex discrimination prohibition. Thus, a disparate impact
claim was established by female construction workers who were adversely affected by
unsanitary portable toilets at their work site, and were forced to choose between exposing
themselves to a health hazard or risk termination for disobeying company rules against
entering a building that had cleaner bathrooms. 84
Footnotes
Footnote 84. Lynch v Freeman (1987, CA6) 817 F2d 380, 43 BNA FEP Cas 1120, 43
CCH EPD 37092.
990 Segregated or unequal restroom and other facilities

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Title VII makes it unlawful for an employer to segregate employees in a way that would
deprive them of employment opportunities, or otherwise adversely affect their
employment status because of race, color, religion, sex, or national origin. 85 Thus, an
employer has been found in violation of Title VII by maintaining racially segregated
drinking fountains, toilet facilities, 86 pay windows, locker rooms, bathhouses, and
cafeterias. 87
Furthermore, even when an employer removed signs indicating "black"
and "white" from racially segregated restrooms, the unlawful practice of maintaining
such segregated restrooms was not eliminated when the stigma of color continued to be
fortified by the ridicule of white management personnel. 88
The ADEA contains a similar prohibition to that of Title VII, which forbids employee
segregation based on age. 89
On its effective date, which varies according to the number of employees employed by an
employer, 90 the Americans with Disabilities Act (ADA) also contains a prohibition
against employer segregation of employees based on a disability. 91 Therefore,
employees with disabilities must not be segregated into particular work areas, or
excluded from the opportunities provided in non-work areas. 92
Illustration: Non-work areas include such things as break rooms and lunch rooms.
If a break room is located on a floor that is inaccessible to a worker in a wheelchair,
comparable amenities must be made available to the disabled worker on a floor
accessible to him. The actual size of the alternative room does not have to be
comparable, as long as the opportunities available to disabled and nondisabled
employees are equivalent, including the opportunity to take a break or eat lunch with
coworkers. 93
Under Executive Order 11246, a government contractor or subcontractor must ensure that
facilities for employees are provided in such a manner that segregation on the basis of
race, color, religion, sex, or national origin cannot result. Segregated use cannot be
required by written or oral policies or tolerated by employee custom. Furthermore,
employees must not be assigned to perform their services at any location under the
contractor's control where facilities are segregated. 94 "Facilities" include waiting
rooms, work areas, restaurants and other eating areas, time clocks, restrooms, wash
rooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains,
recreation or entertainment areas, transportation, and housing. 95
A contractor also cannot refuse to hire men or women for a particular job because there
are no restroom or associated facilities, unless it shows that their construction would be
unreasonable for such reasons as excessive cost or lack of space. 96
Footnotes
6172.
BNF FEP Cas 827, 15 CCH EPD 7842, cert den 434 US 1034, 54 L Ed 2d 781, 98 S
Ct 767, 16 BNA FEP CAS 501, 15 CHH EPD 8019; EEOC Decision No. 71-359
(1970) 2 BNA FEP Cas 1104, CCH EEOC Dec 6172.
Footnote 88. Johnson v Shreveport Garment Co. (1976, WD La) 422 F Supp 526, 13
BNA FEP Cas 48.
Footnote 91. 42 USCS 12112(b)(1).
Footnote 96. 41 CFR 60-20.3(e).
991 Segregated company functions or employer-sponsored activities

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Since Title VII has a prohibition against the discriminatory segregation of employees, 97
an employer violates Title VII by maintaining racially segregated company-sponsored
athletic teams, 98 and segregating Christmas activities according to race. 99
On its effective date, which depends on the number of employees an employer employs,
1 the Americans with Disabilities Act (ADA) regulates all terms and conditions of
employment under its disability discrimination prohibition, 2 which includes such
employer-sponsored activities as social and recreational programs. 3
Under the ADA, employers may not segregate qualified employees with disabilities into
separate work areas based on stereotypes or myths about the disability instead of an
individualized examination of the capabilities of the applicant or employee. 4 The Act
also forbids an employer from requiring employees with disabilities to use only particular
non-work facilities, such as segregated break rooms, lunch rooms, or lounges. 5
Furthermore, an employer's obligation to provide a reasonable accommodation includes
making existing facilities accessible to and usable by individuals with disabilitites. 6
This accommodation responsibility involves both those areas that must be accessible to
the employee in order to perform essential job functions, as well as non-work areas used
by employees for other purposes, such as break rooms, lunch rooms, training rooms, rest
rooms, 7 employer-sponsored placement or counselling services, lounges, gymnasiums,
auditoriums, and transportation. Thus, this duty may involve the elimination of physical
or structural obstacles that inhibit or prevent a disabled employee's access to job cites,
facilities, or equipment. 8
Although employees with disabilities must have equal access to an exercise room,
gymnasium, or health club provided for use by all employees, employers need not
eliminate equipment or amenities that some employees could not use because of their
disability. Employers also need not discontinue a company-sponsored sports team,
league, recreational activity or club because an employee with a disability cannot fully
participate. 9
Recipients of government funding are also forbidden from committing handicap
discrimination with regard to employer-sponsored activities under 504 of the
Footnotes
Footnote 97. 990.
6160.
Footnote 6. 29 CFR 1630.2(o)(2)(ii).

Americans with Disabilities Act-Explanation of Key Legal Requirements, Equal
Footnote 10. 28 CFR 41.52(c)(8).
992 Unequal distribution of equipment or services to employees

View Entire Section
While Title VII does not require employers to provide particular equipment or services to
employees, an employer that takes an employment action against an employee because of
job performance that is affected by a discriminatory distribution of equipment or services
violates the statute. For example, an employer that provided a stool to a white woman
who needed it to perform her job, but not to a similarly situated black woman, violated
Title VII when it terminated the black woman for performance-related reasons
attributable to her lack of the stool. 11
Caution: More than nondiscriminatory distribution of equipment and services may

be required of employers under the Americans with Disabilities Act, and of
government contractors and federal funding recipients under the Rehabilitation Act, as
part of those entities' obligation to provide a reasonable accommodation to otherwise
qualified disabled or handicapped employees and applicants.
Footnotes
Footnote 11. Potter v Goodwill Industries of Cleveland (1975, CA6) 518 F2d 864, 10
993 Establishing grievance procedures

View Entire Section
Federal and state job discrimination laws do not usually mandate the establishment of
internal grievance procedures for employees asserting violations of their
nondiscriminatory prohibitions. However, under regulations designed to implement the
handicap discrimination prohibition of 504 of the Rehabilitation Act, 12 certain

recipients of federal financial assistance must adopt grievance procedures that
incorporate appropriate due process standards and provide for prompt and equitable
resolution of employee complaints. Except for recipients subject to Transportation
Department regulations, 13 grievance procedures need not be established for job
applicants. 14
Footnotes
Footnote 13. 49 CFR 27.13.(b) (Department of Transportation).
Footnote 14. 28 CFR 42.505(e) (Justice Department); 45 CFR 84.7(b) (Department
of Health and Human Services); 54 CFR 1151.43 (National Foundation on the Arts
and Humanities);
(2). Employee Privacy Concerns [994-1022]
994 Confidentiality of medical records

View Entire Section
Go to Supplement
On its effective date, which varies for employers according to number of employees, 15
the Americans with Disabilities Act (ADA) requires that the information obtained in
medical examinations permitted under the Act 16 for applicants 17 amd employees 18
must be collected and maintained on separate forms in separate files and be treated as
confidential medical records. However, such records may be shared with:
supervisors and managers, for purposes of identifying necessary restrictions on the
employee's work or duties or identifying necessary accommodations to the individual's
disability; 19
first aid and safety personnel, when appropriate, if the disability might require
emergency treatment, 20 or special evacuation procedures; 21
government officials who are investigating compliance with the ADA to the extent that
the information is relevant to compliance and requested by the officials 22 and/or with
other federal and state laws prohibiting discrimination on the basis of handicap or
disability, 23
Information collected during the course of a permitted medical examination may be used
for insurance purposes and employers may submit such information to state workers'
compensation offices or second injury funds, 24 but the information may not be used for
the purpose of limiting health insurance eligibility. 25

If the results of a drug test permissible under the ADA 26 reveal any information about
the subject's medical condition beyond whether he is currently engaged in the illegal use
of drugs, this additional information is to be treated as a confidential medical record. 27
Illustration: If a permissible drug test reveals the presence of a controlled substance

that has been lawfully prescribed for a particular medical condition, this information
must be treated as a confidential medical record. 28
State aspects: The laws in some states specifically deal with the use and disclosure
of, and access to medical records. 29
994 ----Confidentiality of medical records [SUPPLEMENT]
Practice Aids: Invasion of privacy in the private employment sector: Tortious and
ethical aspects, 30 Houston LR 1263 (1993).
Breach of employee confidentiality: Moving toward a common-law tort remedy, 142 U
Pa LR 431 (1993).
Discovery of the plaintiff's mental health history in an employment discrimination case,
16 W N Eng LR 55 (1994).
Case authorities:
In Title VII action, damages for mental and emotional distress will not be presumed, and
must be proven by competent evidence. Turic v Holland Hospitality (1996, CA6 Mich)
85 F3d 1211, 71 BNA FEP Cas 28, reh den (1996, CA6) 1996 US App LEXIS 18390 and
reh, en banc, den (1996, CA6) 1996 US App LEXIS 18391.
Footnotes
Footnote 17. 42 USCS 12112(c)(3)(B).
Footnote 18. 42 USCS 12112(c)(4)(C).
Footnote 19. 42 USCS 12112(c)(3)(B)(i), discussed at 217 et seq..
Footnote 20. 42 USCS 12112(c)(3)(B)(ii).
Footnote 22. 42 USCS 12112(c)(3)(B)(iii).

Footnote 27. 29 CFR 1630.16(c)(3).
Footnote 28. 29 CFR Part 1630, Appendix, 1630.16(c.
Footnote 29. These laws are noted in the Employment Coordinator 22,510 et seq.
995 When consumer reports can be disclosed to employers

View Entire Section
The Fair Credit Reporting Act (FCRA) makes it unlawful for a consumer reporting
agency to furnish a "consumer report" to third parties except under very limited
circumstances. 30 A "consumer report" is any oral or written information collected by a
consumer reporting agency that bears on a consumer's credit worthiness, standing, or
capacity, or that discloses information about his character, reputation, or mode of living.
31
Under one exception to the statute's disclosure prohibitions, a consumer reporting agency
may furnish such reports to a person who intends to use the information for "employment
purposes." 32 A report is for "employment purposes" under the FCRA when it is used
to evaluate a consumer for employment, promotion, reassignment, or retention as an
employee. 33 Thus, a consumer report is not for an "employment purpose," and is
unavailable under FCRA, if it is requested after an employee has announced his
resignation. 34 Furthermore, the exception extends only to reports concerning the
person being considered for employment. Therefore, an employer could not obtain a
credit report on the spouse of an employee being considered for a security sensitive
position, even if the intended use of the report was to evaluate the employee's
trustworthiness. 35
Another exception to the definition of a "consumer report" relates to information with
which the reporter has first-hand knowledge and experience. 36
Therefore, a laboratory's drug test report on a subject employee was not regulated by the
statute. 37
State aspects: Many states have laws regulating the security of employment and
consumer records and other employee privacy concerns. 38
Footnotes
Footnote 31. 15 USCS 1681a(d).
Footnote 33. 15 USCS 1681a(h).
Footnote 34. Russell v Shelter Financial Services (1984, WD Mo) 604 F Supp 201.
Footnote 35. Zamora v Valley Federal Sav. & Loan Assoc. (1987, CA10) 811 F2d 1368.
Footnote 36. 15 USCS 1681a(d)(A)
Footnote 37. Hodge v Texaco U.S.A. (1991, WD La) 764 F Supp 424.
seq.
996 Employee access to consumer report contents and recipients

View Entire Section
The Fair Credit Reporting Act not only entitles employers to obtain consumer
information for "employment purposes" 39 but also entitles the person who is the
subject of a consumer report, upon request and proper identification, to learn the identity
of all recipients of a report furnished for such purposes within the two-year period
preceding the request. 40
Footnotes
Footnote 39. 995.
Footnote 40. 15 USCS 1681g(a)(3)(A).
997 When employees are notified of report use by the employer
View Entire Section

Whenever an employer denies employment, partially or totally because of information
contained in a consumer report, it must so advise the person on whom the report was
made, and supply him with the name and address of the reporting agency. 41
Footnotes
Footnote 41. 15 USCS 1681m(a).
6. Lie Detector Testing [998-1022]
998 Generally
View Entire Section
The Employee Polygraph Protection Act forbids private employers to use lie detectors
except in carefully circumscribed situations. In addition, the U.S. Constitution and state
constitutions may place restraints on the type of questioning permitted by public
employers during lawful lie detector and polygraph testing of employees or applicants.
42
Caution: Polygraph and lie detector testing, like any other job requirement used to
make employment selections, must be applied equally, and not have an unjustified
disproportionate impact on minorities or other groups protected under job
discrimination laws.
State aspects: Many state laws either totally ban or severely restrict an employer's
use of such devices. 43
Footnotes
Footnote 42. 1018.
seq.
State constitutional limitations on the scope of permissible questioning during lie detector
tests is discussed at EP-22,424.
999 What is a "lie detector"

View Entire Section
Under the EPPA, a "lie detector," for purpose of the Act's restrictions, 44 includes a
"polygraph," 45 deceptograph, voice stress analyzer, psychological stress evaluator, or
any other similar device, whether mechanical or electrical, that is used, or the results of
which are used, for the purpose of rendering a diagnostic opinion regarding an
individual's honesty or dishonesty. 46 It also includes the use of psychological stress
evaluators, regardless of whether an opinion regarding honesty is actually rendered. 47
By defining "lie detector" in terms of devices rather than tests, Congress intended the
prohibitions against lie detector testing to be construed broadly to include any use of a lie
detector. 48
Excluded from the definition of "lie detector" are medical tests used to determine the
presence or absence of controlled substances or alcohol in bodily fluids, or written or oral
tests commonly referred to as "honesty" or "paper and pencil tests." 49 It also excludes
"graphology," which is commonly referred to as handwriting analysis. 50 However, the
exclusion of medical drug testing does not permit lie detector or polygraph testing for the
purpose of discovering an employee's use of drugs or alcohol, even in the course of an
ongoing investigation concerning an economic loss or injury. 51
Footnotes
Footnote 44. 1001.
Footnote 45. 1000.
Footnote 47. 29 CFR 801.2(d)(1).
Footnote 48. H Conf Rept No. 100-659, to accompany H.R. 1212, 5/26/88, p. 11.
Footnote 50. 29 CFR 801.2(d)(2).
1000 What is a "polygraph"

View Entire Section

A "polygraph," for purposes of the EPPA's restrictions, 52 is an instrument that records
continuously, visually, permanently, and simultaneously, changes in cardiovascular,
respiratory, and electrodermal patterns as minimum instrumentation standards, 53 and is
used, or the results of which are used, for the purpose of rendering a diagnostic opinion
regarding a person's honesty or dishonesty. 54
The distinction made in the Act between a "lie detector" 55 and a "polygraph" means
that only a polygraph may be used for diagnostic purposes under the restricted conditions
specified in the Act. 56
Footnotes
Footnote 52. 1001.
Footnote 55. 999.
b. Requirements of the Employee Polygraph Protection Act [1001-1008]
1001 Restrictions on polygraph and other forms of lie detector testing

View Entire Section
Go to Supplement
The Employee Polygraph Protection Act (EPPA) prohibits most private employers from
directly or indirectly requiring, requesting, suggesting, or causing any employee or
applicant to take or submit to any lie detector 57 test, 58 or from using, 59 accepting,
referring to, or inquiring about the results of any such test. 60
The restriction on "accepting" test results includes a prohibition against obtaining
information about a test conducted by police authorities. 61 Furthermore, employer
participation in a test conducted by or at the request of police authorities, or the
employer's reimbursement of testing costs to such authorities, is also forbidden.
However, passive cooperation with police conducting an investigation into criminal
misconduct, such as allowing an employee to be tested by the police at the worksite, or

releasing him for the pupose of police testing at another location, does not violate the
EPPA. 62
Exceptions in the statute allowing polygraph 63 testing of applicants apply to drug
manufacturers and distributors 64 and security firms. 65 There are also specific
requirements regulating the testing of employees of those entities. The Act allows all
covered employers to give polygraph tests to current employees for the purpose of
conducting particular types of ongoing investigations. 66 However, all permissible
testing must be conducted in a prescribed fashion 67 and there are specific restrictions
placed on the use of test records and results. 68
1001 ----Restrictions on polygraph and other forms of lie detector testing
[SUPPLEMENT]
Statutes:
Footnotes
Footnote 57. 999.
Footnote 59. 1022.
Footnote 63. 1000.
Footnote 64. 1003.
Footnote 65. 1004.
Footnote 66. 1009-1013.
Footnote 67. 1014-1020.
1002 Prohibition against threats to use lie detector tests or to provide bad
references for refusals
View Entire Section
Since the Employee Polygraph Protection Act forbids "suggesting" the use of lie detector
tests by private employers, 69 it is a violation of the Act to threaten to use a polygraph
70 in order to induce confessions or admissions of guilt, by:
simulated use of a polygraph.
connecting an applicant or employee to a polygraph without intending to use it for
diagnostic purposes.
placing a polygraph in an interrogation room, even if it is not connected to any
individual. 71
It is also unlawful for an employer to threaten to give bad references to a former
employee who quit because of his refusal to take a lie detector test. 72
Footnotes
Footnote 69. 1001.
Footnote 70. 1000.
1003 Permissible testing by drug manufacturers and distributors

View Entire Section
Subject to the limitations on permissible testing imposed by the EPPA 73 or by state
law, 74 the EPPA allows an employer authorized to manufacture, distribute, or dispense
any controlled substance listed in schedules I through IV of the Controlled Substances
Act (21 USCS 8121) to administer a polygraph 75 test 76 to an applicant who would
have direct access to the manufacture, storage, distribution, or sale of any such
substances. 77 Employers involved in the transportation or storage of these substances
who are not authorized to manufacture, distribute, or dispense these substances under the
Controlled Substances Act, do not qualify for the exception. 78 Applicants who are
applying for a job involving "direct access" include those who will have direct contact
with the controlled substance, either because of their physical proximity to it, or because
they can divert the substance into their own possession. 79
When employees are tested in the context of a potential transfer or promotion for a
position involving direct access to controlled substances, any adverse action taken by the
employer must be limited to the employee's prospective position, and may not affect his
current employment. 80
Observation: 29 CFR 801.13(d) indicates that an employee is treated as an

applicant if he is seeking a promotion or transfer to a position covered by the exception
permitting testing by drug manufacturers and distributors.
Furthermore, an adverse action cannot be based solely on test results or a refusal to take a
polygraph test, but must be supported either by admissions or statements from the
employee, or by another bona fide reason such as job performance. 81
Drug manufacturors and distributors are also authorized to give a polygraph test to an
employee in connection with an ongoing investigation of criminal or other misconduct
involving, or potentially involving, loss or injury to the employer in the manufacturing,
distribution, or dispensing of those controlled substances. 82 An economic loss of other
products does not qualify for this exception. 83 Furthermore, this exception only applies
if the employee had access to the person or property that is the subject of the
investigation. 84 While "direct" access is not required, the employee must have been
able to cause or help assist in causing the loss of the controlled substance. 85
When testing employees under this exemption, the written statement normally required
for ongoing investigations 86 is unnecessary. 87
Footnotes
Footnote 73. 1009-1022.
Footnote 74. 1005.
Footnote 75. 1000.
Footnote 77. 29 USCS 2006(f)(2)(A).
Footnote 78. 29 CFR 801.13(b)(2).
Footnote 79. 29 CFR 801.13(c)(1).
Footnote 82. 29 USCS 2006(f)(2)(B)(i).
Footnote 83. 29 CFR 801.13(f)(2).

Footnote 84. 29 USCS 2006(f)(2)(B)(ii).
Footnote 85. 29 CFR 801.13(c)(2).
Footnote 86. 1013.
1004 Permissible testing by security firms

View Entire Section
The EPPA contains an exception to its general prohibition against the lie detector testing
of applicants 88 that permits security and security-related services, subject to all
limitations imposed by the Act 89 or state law, 90 to give polygraph 91 tests to
applicants under certain conditions.
The exception applies to an employer, which includes the subsidiary of a parent
corporation, whose primary business (more than 50% of annual dollar volume) 92
consists of providing armored car personnel, personnel engaged in the design,
installation, and maintenance of security alarm systems, or other uniformed or
plainclothes security personnel whose function includes the protection of certain
facilities, materials, operations, and assets, 93 but not employers providing security
alarm and guard services to private homes. 94 Furthermore, the "facilities, materials,
and operations" being protected must have a significant impact on the health and safety
of any state or its political subdivisions, or on the national security of the United States,
as determined by rules and regulations issued by the Secretary of Labor, 95 whether
privately or publicly owned. 96 Examples of such "facilities, materials, operations and
assets" include:
facilities engaged in the production, transmission, or distribution of electric or nuclear
power; 97
public water supply facilities; 98
shipments or storage of radioactive or other toxic waste materials; 99
public transportation; 1
the provision of currency, negotiable securities, precious commodities or instruments, or
proprietary information, 2 which include such items as trade secrets, research and
development or cost/pricing data, gold, silver, and jewels, even if they are stored in a
merchant's home, as long as the security service is expressly designed to protect only
those items, not the home in general; 3
publicly owned or leased materials and operations for which an authorized public
official has determined that a need for the requisite security exists, such as government
offices, prisons, schools, libraries, and military facilities; 4
communication facilities and operations that transmit or receive radio, television, and
satellite signals; 5
the Federal Reserve System and the stock and commodity exchanges; 6
hospitals and health research facilities; 7
large enclosed shopping centers, such as malls; 8
large public events, such as political conventions, major parades, concerts, and sporting
contests. 9
The Administrator of the Wage and Hour Division of the Labor Department will
determine whether particular "facilities, materials, or operations" are within the
exception, on request, prior to administration of a polygraph test. 10
The exception only allows testing of an applicant employed for the protection of the
relevant "facilities, materials, operations, or assets," 11 but is not limited only to
applicants for jobs having "direct" physical access to the protected places or items. It
also includes support personnel who have an opportunity to breach security. 12 An
"applicant" includes not only a person being considered for employment for the first
time, but also a current employee who holds a job not covered by the exception, but who
applies or is otherwise being considered for a job that is covered by the exception. 13
Adverse action can be taken against such an individual only with respect to the
prospective position, not his current position. 14 Also, any adverse action taken as a
result of testing under this exception cannot be based solely on the results of or the
refusal to take a polygraph test, but must also be based on either the test subject's
statements or admissions, or some bona fide reason such as employment history. 15
Footnotes
Footnote 88. 1001.
Footnote 89. 1009-1022.
Footnote 90. 1005.
Footnote 91. 1000.
Footnote 95. 29 USCS 2006(e)(1)(A).

Footnote 96. 29 CFR 801.14(d)(1).
Footnote 97. 29 USCS 2006(e)(1)(A)(i).
Footnote 98. 29 USCS 2006(e)(1)(A)(ii).
Footnote 99. 29 USCS 2006(e)(1)(A)(iii).
Footnote 1. 29 USCS 2006(e)(1)(A)(iv).
Footnote 2. 29 USCS 2006(e)(1)(B).
Footnote 3. 29 CFR 801.14(e)(ii).
Footnote 4. 29 CFR 801.14(d)(2)(i).
Footnote 5. 29 CFR 801.14(d)(2)(iv).
Footnote 6. 29 CFR 801.14(d)(2)(v).
Footnote 7. 29 CFR 801.14(d)(2)(vi).
Footnote 8. 29 CFR 801.14(d)(2)(viii).
Footnote 9. 29 CFR 801.14(d)(2)(vii).
Footnote 10. 29 CFR 801.14(d)(3).
Footnote 12. 29 CFR 801.14(g)(4).
Footnote 13. 29 CFR 801.14(b)(2).
Footnote 14. 29 CFR 801.14(b)(2).
1005 Effect of state laws and collective bargaining agreements

View Entire Section
The EPPA does not pre-empt any provision of state or local law, or any provision of a
negotiated collective bargaining contract, that either completely prohibits lie detector
tests, or is more restrictive with respect to such tests than is the EPPA. 16 Such
provisions may encompass all aspects of lie detector tests, including procedural
safeguards, the use of test results, an examinee's rights and remedies, and the rights,
remedies, and responsibilities of examiners and employers. State and local governments
may also restrict the use of lie detectors by public employers. 17
The EPPA's pre-emption provision (footnote 42) does not save state law claims from
arbitration, but only preserves state statutory remedies which offer more protection for
employees than the EPPA. To the extent that a state's preference for a judicial forum
would interfere with Congress' preference for arbitration of claims under the Federal
Arbitration Act, the state law is pre-empted. 18
Footnotes
Footnote 17. H Conf Rept No. 100-659, to accompany H.R. 1212, 5/26/88, pp. 15-16.
Footnote 18. Saari v Smith Barney, Harris Upham & Co. (1992, CA9) 1992 US App
LEXIS 14634.
1006 Ban on retaliation against employees and job applicants

View Entire Section
Under the EPPA, a covered employer cannot discharge, deny employment to, or
otherwise take or threaten to take retaliatory action against an employee or applicant
because he:
filed a complaint or instituted or caused to be instituted a proceeding under or related to
the statute; 19
testified or is about to testify in such a proceeding; 20
exercised a right provided by the Act, on his own or another person's behalf. 21
An employer is also forbidden to give bad references or otherwise retaliate against a
former employee who quit because of his refusal to take a lie detector test. 22
Footnotes
Footnote 21. 29 USCS 2002(4)(C).
1007 Ban on interference with government officials

View Entire Section
Under the EPPA, it is unlawful for a person to resist, oppose, impede, intimidate, or
interfere with an official of the Department of Labor in the performance of his or her
duties in enforcing the statute. 23
Footnotes
1008 Restrictions on test subject's waiver of rights

View Entire Section
A test subject may not waive any of the rights provided by the EPPA, even voluntarily or
by contract, except as a part of a written settlement of a pending action or complaint that
is agreed to and signed by all parties involved. 24
Footnotes
Footnote 24. 29 CFR 801.23(a)(3)(xv).
c. When Can Employer Use Polygraph [1009-1013]
1009 Investigations of economic loss or injury where employee has access to

property under investigation
View Entire Section
Go to Supplement
Subject to the requirements of the Employee Polygraph Protection Act concerning how a
polygraph test must be conducted, 25 and the restrictions on the use of polygraph tests,
26 employers may request employees to take a polygraph test that is administered in
connection with an ongoing investigation involving economic loss or injury 27 to its
business if the employee had access to the property 28 that is the subject of the
investigation. 29 The employer also must have a reasonable suspicion 30 that the
employee was involved in the incident or activity under investigation, 31 and the
required written statement 32 must be given to the test subject. 33
Such investigations must focus on a specific incident or activity. Polygraph testing is not
permitted in "fishing expeditions," such as to determine whether a theft has occurred, or
to make inquiries concerning continuous problems involving missing inventory.
Polygraph tests may only be adminstered to employees reasonably suspected of
involvement in specified items of inventory whose absence is attributed to intentional
wrongdoing. 34
1009 ----Investigations of economic loss or injury where employee has access to
property under investigation [SUPPLEMENT]
Case authorities:
Employer is liable for violations of 29 USCS 2006(d)(3) and (4), where owner of
currency exchange (1) made general statement to all employees that each would be
required to take polygraph test in conjunction with certain missing notary seals and cash
shortages, (2) had plaintiff employee sign statement acknowledging request to submit to
test, (3) had polygraph examiner administer test to employee, (4) informed employee
later that same afternoon that she had passed examination, then (5) terminated employee
2 weeks later, because mere access to missing property is not enough to establish
"reasonable suspicion" required for polygraph testing under 2006(d)(3), and mere
acknowledgment of test request day before test administration does not meet
requirements of 2006(d)(4) 48-hour notice. Blackwell v 53rd-Ellis Currency Exch.
(1994, ND Ill) 852 F Supp 646.
Footnotes
Footnote 25. 1014-1020.
Footnote 27. 1010.
Footnote 28. 1011.
Footnote 29. 29 USCS 2006(d)(1), (2).
Footnote 30. 1012.

Footnote 32. 1013.
1010 What constitutes an "economic loss or injury"

View Entire Section
The Employee Polygraph Protection Act's permitted polygraph testing for an ongoing
investigation must be in connection with an "economic loss or injury" to the employer's
business, which explicitly includes theft, embezzlement, misappropriation, or an act of
unlawful industrial espionage or sabotage. 35 Congress intended these specific
examples to be illustrative, not exhaustive. For example, check-kiting, money
laundering, and the misappropriation of confidential information meet the requisite injury
standard, even though they result in short-term gain. However, unintentional economic
losses, such as those resulting from a workplace accident, and those incident to lawful
employee or union activity, do not justify polygraph testing. 36 Nor do thefts
committed by one employee against another, since the loss must be to the employer's
business. 37
An "economic loss or injury" may be either direct or indirect. 38 An example of direct
"economic loss or injury" would include the misappropriation of trade secret information.
39 An indirect "economic loss or injury" includes the use of an employer's business
operations or equipment to commit a crime, but does not include the mere presence of a
crime on the employer's property, such as the sale of illegal drugs in a parking lot. 40
An indirect loss also involves loss or damage to the property of another person, over
which the employer exercises fiduciary, managerial, or security responsibility. For
example, a theft of a tenant's property by a manintenace employee constitutes an indirect
injury to an employer that manages the apartments. It also includes loss or damage to the
property of another firm over which the employer has custody, unless employees have
access to such property by virtue of the business relationship. 41
The mere threat of a potential loss or injury, such as the anticipated severing of an
advantageous business relationship, does not qualify as an indirect loss. 42
Observation: The testing of employees complaining of, or accused of committing

unlawful harassment, 43 as part of an employer's duty to take corrective action under
job discrimination laws, does not squarely fall within the description of what
constitutes "economic loss or injury," and would not be permitted. Another reason for
not allowing such testing pertains to the EPPA's restrictions on the type of questioning
permitted during a test. 44
Footnotes
Footnote 36. H Conf Rept No. 100-659, to accompany HR 1212, 5/26/88, p. 12; 29 CFR
801.12(c)(2).
Footnote 37. 29 CFR 801.12(c)(3).
Footnote 38. 29 CFR 801.12(c)(1)(i).
Footnote 39. 29 CFR 801.12(c)(1)(ii).
Footnote 40. 29 CFR 801.12(c)(1)(iii).
Footnote 41. 29 CFR 801.12(c)(1)(iv).
Footnote 42. 29 CFR 801.12(c)(1)(vi).
Footnote 44. 1017.
1011 What constitutes "access" to "property"

View Entire Section
The polygraph testing permitted by the Employee Polygraph Protection Act when an
employer is conducting an ongoing investigation of economic loss or injury is only
allowed if the tested subject had "access" to the "property" over which the investigation
is conducted. 45 In this context, access means not only direct physical contact, but also
the opportunity to cause or aid in causing the economic loss, such as when an employee
has the combination to a locked container, or the ability to alter records to disguise a loss.
46 "Property" includes not only identifiable items, but also other things of value,
including security codes, computer data, trade secrets, and proprietary financial or
technical information. 47
Footnotes
Footnote 45. 1009.
Footnote 46. 29 CFR 801.12(e)(1).
Footnote 47. 29 CFR 801.12(e)(2).
1012 What type of "reasonable suspicion" justifies a polygraph

View Entire Section
Go to Supplement
Under the Employee Polygraph Protection Act, the "reasonable suspicion" that an
employer must have before it may give an employee a polygraph test in connection with
an ongoing investigation of economic loss or injury, 48 refers to some observable,
articulable basis in fact, beyond the predicate loss 49 and access 50 necessary for any
testing. This could include such factors as the employee's demeanor or discrepancies
arising during the course of an investigation. While access alone is not a basis for
reasonable suspicion, the circumstances surrounding such access, such as its
unauthorized or unusual nature, or the fact that access was limited to a single individual,
51 may be a factor used in forming a "reasonable suspicion." 52
The employer bears the burden of proving that a "reasonable suspicion" exists. 53
1012 ----What type of "reasonable suspicion" justifies a polygraph
[SUPPLEMENT]
Case authorities:
Hospital employer did not qualify for ongoing investigation exemption (29 USCS
2006(d)), since hospital could not demonstrate that it suffered economic loss to its
business (i.e. patient care) due to theft from locker of physician who had privileges at
hospital, and hospital failed to provide employee suspected of theft with procedural
safeguards mandated by exemption. Lyle v Mercy Hosp. Anderson (1995, SD Ohio) 10
BNA IER Cas 401.
Footnotes
Footnote 48. 1009.
Footnote 49. 1010.
Footnote 50. 1011.
Footnote 51. 29 CFR 801.12(f)(1).
Footnote 53. 29 CFR 801.12(f)(3).
1013 Required written statements

View Entire Section
At least 48 hours prior to an employer's administration of a polygraph test, excluding
weekends and holidays, 54 allowed under the Employee Polygraph Protection Act in
connection with an ongoing investigation involving economic loss or injury, 55 an
employer must execute and give a statement to the employee that particularly describes
the specific incident or activity being investigated, and the reason for testing particular
employees. 56 An applicant may voluntarily give his written consent to be tested in less
than 48, but not less than 24 hours after receiving the statement. 57 The statement must
be signed by a person, other than the polygraph examiner, who is authorized to bind
legally the employer. 58
At a minimum, the statement must identify the specific economic loss or injury 59 to the
employer's business, 60 indicate that the employee had access to the property 61 that is
the subject of the investigation, 62 and must describe the basis of the employer's
reasonable suspicion 63 that the employee was involved in the incident or activity under
investigation. 64 However, the statement need not identify co-workers or others who
have provided information used to establish the employer's reasonable suspicion. 65
The statement must also contain the time and date it was presented to the examinee, and
be verified by the examinee's signature. 66
A statement that did not specify the incident or activity under investigation, and did not
list the basis for testing particular employees, but only mentioned "product loss," was
deficient. The statement should have referred to the inventory that revealed the
merchandise loss and which products were missing from inventory. It also did not
adequately describe why the employee was suspected of involvement in the loss, nor tell
employees why they were under investigation. In some instances it was given to the
employees less than 48 hours before the test. 67
On the other hand, a notification that listed the date that cash was discovered missing
from the employee's cash register, the amount missing, stated that the employee had
access to the property under investigation, and generally informed the employee why she
was under suspicion, was sufficient because it implicitly linked the employee's exclusive
access to the money and reasonable suspicion to suspect the employee of knowledge of
its disappearance. The statement of reasonable suspicion, alone, would have been
deficient. 68
Additional written notices concerning the administration of all polygraph tests permitted
under the statute 69 and concerning the examinee's statutory rights 70 are discussed
elsewhere.
Footnotes
Footnote 54. 29 CFR 801.12(g)(2).
Footnote 55. 1009.

Footnote 56. 29 USCS 2006(d)(4)(A).
Footnote 57. 29 CFR 801.23(a)(1).
Footnote 58. 29 USCS 2006(d)(4)(B).
Footnote 59. 1010.
Footnote 60. 29 USCS 2006(d)(4)(D)(i).
Footnote 61. 1011.
Footnote 62. 29 USCS 2006(d)(4)(D)(ii).
Footnote 63. 1012.
Footnote 64. 29 USCS 2006(d)(4)(D)(iii).
Footnote 65. 29 CFR 801.12(g)(3).
Footnote 66. 29 CFR 801.12(g)(2).
Footnote 67. In the Matter of Rapid Robert's Inc. (US DOL ALJ) No. 91-EPP-4, 6/18/92.
Footnote 68. In the Matter of Scrivener Oil Co. (US DOL ALJ) No. 91-EPP-6, 6/18/92.
Footnote 69. 1015.
Footnote 70. 1016.
d. How Must Polygraph Tests be Conducted [1014-1020]
1014 Examinee's right to terminate or prevent examination

View Entire Section
An individual who may be required to submit to a polygraph examination under the
Employee Polygraph Protection Act can terminate the test at any time, 71 or prevent the
test if there is sufficient written evidence from a physician that the individual is suffering
from a medical or psychological condition, or is undergoing treatment that might cause
abnormal responses during the testing. 72 If a test is stopped or prevented for medical
reasons, the Act's restrictions on an employer's ability to take adverse actions against the
employee 73 still apply. 74
Footnotes
Footnote 72. 29 USCS 2007(b)(1)(D).
Footnote 73. 1022.
Footnote 74. 29 CFR 801.22(b)(5).
1015 Required written notice involving the administration of the test

View Entire Section
Subject to the time limits applicable to required written notices, 75 an employer must
provide the examinee a written notice, in a language which the examinee understands, 76
stating the date, time, and location of the test, and of his right to obtain and consult with
legal counsel, or an employee representative, before each phase of the test. 77
However, while the counsel or representative must be available on the premises for
private consultations, he may be excluded from the testing room during the actual
examination. 78 It must also inform the examinee of the nature and characteristics of
the test and the instruments involved. 79 Specifically, the examinee must be informed:
whether the testing area contains a two-way mirror, a camera, or any other device
through which the test can be observed; 80
whether another device, including a device for recording or monitoring the test, will be
used; 81
that either the employer or examinee may record the test, with the other party's
knowledge. 82
Note to personnel: A sample of the required notice appears as an addition to the

regulations issued by the Department of Labor's Wage and Hour Division, at 29 CFR
801 et seq., Appendix. 56 Fed Reg. 9079, 3/04/91.
Footnotes
Footnote 75. 1013.
Footnote 76. 29 CFR 801.23(a)(1).
Footnote 78. 29 CFR 801.23(a)(1).

Footnote 80. 29 USCS 2007(b)(2)(C)(i).
Footnote 81. 29 USCS 2007(b)(2)(C)(ii).
Footnote 82. 29 USCS 2007(b)(2)(C)(iii).
1016 Required written notice concerning examinee's rights

View Entire Section
No polygraph test permitted by the Employee Polygraph Protection Act may begin until
the examinee has been read and has signed a written notice, in a language he understands,
83 informing him:
that he cannot be required to take the test as a condition of employment; 84
Observation: Testing of applicants is permitted by specified employers. 85

that any statement made during the test may be used to support an adverse employment
action against him; 86
that any admission of criminal conduct may be transmitted to an appropriate law
enforcement agency; 87
of all of the limitations on how a polygraph test may be conducted and used; 88
of his legal rights and remedies available under the EPPA if the test is not conducted in
accordance with the Act; 89
of the employer's legal rights and remedies under the statute, including those pertaining
to disclosure of test results. 90
Footnotes
Footnote 83. 29 CFR 801.23(a)(1).
Footnote 84. 29 USCS 2007(b)(2)(D)(i).
Footnote 86. 29 USCS 2007(b)(2)(D)(ii).

Footnote 87. 29 CFR 801.23(a)(3)(xi)(B).
Footnote 88. 29 USCS 2007(b)(2)(D)(iii).
Footnote 89. 29 USCS 2007(b)(2)(D)(iv).
Footnote 90. 29 USCS 2007(b)(2)(D)(v).
1017 Statutory limitations on questioning

View Entire Section
Prior to any polygraph testing permitted under the Employee Polygraph Protection Act,
the examinee must be given an opportunity to review all questions to be asked, and
informed of the right to terminate the questioning at any time. 91 Questions may not be
asked in a degrading or unnecessarily intrusive manner, 92 and cannot include any
questions concerning:
religious beliefs or affiliations; 93
beliefs or opinions regarding racial matters; 94
political beliefs or affiliations; 95
any matter relating to sexual behavior; 96
beliefs, affiliations, opinions, or lawful activities regarding unions or labor
organizations. 97
Besides the EPPA's limitations on permissible questioning during a polygraph
examination, U.S. and state constitutions may also restrict the permissible scope of
questioning by public employers. 98
Footnotes
Footnote 91. 29 USCS 2007(b)(2)(E).
Footnote 92. 29 CFR 801.22(b)(2)(ii).
Footnote 93. 29 USCS 2007(b)(1)(C)(i).
Footnote 94. 29 USCS 2007(b)(1)(C)(ii).
Footnote 95. 29 USCS 2007(b)(1)(C)(iii).
Footnote 96. 29 USCS 2007(b)(1)(C)(iv).

Footnote 97. 29 USCS 2007(b)(1)(C)(v).
Footnote 98. 1018.
1018 Constitutional limitations on questioning by public employers

View Entire Section
Although public employers are not covered by the Employee Polygraph Protection Act,
constitutional limitations prevent such employers from asking non-job related personal
questions of public employees during lie detector examinations. For example,
questioning a police officer candidate about her non-job related off-duty sexual conduct
violated her rights of privacy and freedom of association under the U.S. Constitution. 99
However, only the court could make the legal determination as to whether non-job
related questions asked by a public employer during pre-employment polygraph testing
of police officer and fire department candidates violated their right to privacy under the
U.S. and state constitutions, or whether the employer's interest in such testing outweighed
the candidates' privacy interests. Before that legal determination, either the court or the
jury would have to resolve the subsidiary factual questions, such as what questions were
asked during the tests, and, if there were abuses of privacy, did they harm the candidates
and were they pervasive. The potentially intrusive questions concerned religious
practices, consensual sexual activity, infrequent past drug use, membership in nonviolent
organizations, and the criminal behavior of non-adult family members. 1
Caution: Some state constitutions contain privacy rights that are applicable to both
private and public employers.
The state need only have a rational basis for requiring job applicants for employment in
law enforcement agencies to undergo polygraph examinations entailing disclosure of
personal information, rather than a compelling interest, because the right to nondisclosure
of such information is not a fundamental right under the state or U.S. Constitution. The
rational basis test is satisfied when the disclosure requirement is carefully tailored to
meet a legitimate governmental interest and the scope of the disclosure is no greater than
is reasonably necessary to achieve that interest. Since the position of a law enforcement
word processor would involve regular contact with and access to sensitive documents and
information, the state had a legitimate interest in subjecting the applicant to a polygraph
examination in order to provide employees of high moral character and integrity. 2
However, a private employer's psychological screening of job applicants for security
officer positions violated the California Constitution because the employer did not have a
compelling interest in asking questions relating to religious beliefs and sexual orientation
as part of the screening. These questions did not further the employer's interest in
employing emotionally stable persons to be security officers and thus were not
job-related. The "reasonableness" test that another state appeals court uses to determine
the constitutionality of drug and alcohol testing is inconsistent with the constitution's
privacy clause and the case law interpreting it. 3
Observation: Although O'Hartigan and Soroka state different standards for

determining the constitutionality of lie detector or psychological screening, they are
consistent in requiring employers to justify the questions asked as being either
necessary or job-related in order to minimize the privacy invasion.
Footnotes
Footnote 99. Thorne v El Segundo (1983, CA9) 726 F2d 459, 33 BNA FEP Cas 441, 1
BNA IER Cas 299, 32 CCH EPD 33936, cert den 469 US 979, 83 L Ed 2d 315, 105 S
Ct 380, 36 BNA FEP Cas 234, 1 BNA IER Cas 1136, 35 CCH EPD 34747.
Footnote 1. Woodland v City of Houston (1991, CA5) 940 F2d 134.
Footnote 2. O'Hartigan v State Dept. of Personnel (1991) 118 Wash 2d 111, 821 P2d 44,
7 BNA IER Cas 166.
Footnote 3. Soroka v Dayton Hudson Corp. (1991, 1st Dist) 235 Cal App 3d 654, 1 Cal
Rptr 2d 77, 6 BNA IER Cas 1491, 58 CCH EPD 41270, 120 CCH LC 56762.
1019 Length and frequency of testing

View Entire Section
All polygraph tests permitted by the Employee Polygraph Protection Act must last at
least 90 minutes. 4 The 90 minutes begins when the examiner informs the examinee of
the nature and characteristics of the examination, and ends when the examiner concludes
his discussion of the test results with examinee. 5
Furthermore, the examiner conducting the test may not complete more than five such
tests in the same calendar day. 6 This limitation only includes tests subject to the
EPPA, and does not include situations where the examinee terminates the process prior to
the actual testing being done. 7
Footnotes
Footnote 7. 29 CFR 801.26(c)(2).
1020 Examiner qualifications and opinions

View Entire Section
An employer cannot administer any polygraph test permitted under the Employee
Polygraph Protection Act unless the examiner has both a valid and current license, if
required by the state where the test is conducted, 8 and unless he maintains a minimum
bond of $50,000, or an equivalent amount of professional liability coverage. 9 If a state
has more stringent bonding requirements, they must be satisfied. 10
An examiner's opinions or conclusions regarding the polygraph test must be in writing,
based solely on an analysis of polygraph test charts, 11 and must exclude any
information other than admissions by the test subject, the facts of the underlying incident
or activity, and interpretation of charts relevant to the purpose and stated objectives of the
test. 12 Also, the examiner cannot make any recommendation concerning the
examinee's employment. 13
Footnotes
Footnote 8. 29 USCS 2007(c)(1)(A).
Footnote 9. 29 USCS 2007(c)(1)(B).
Footnote 10. 29 CFR 801.5(b)(2).
Footnote 11. 29 USCS 2007(c)(2)(A)(i).
Footnote 12. 29 USCS 2007(c)(2)(A)(ii).
Footnote 13. 29 USCS 2007(c)(2)(A)(iii).
e. Restrictions on Use of Polygraph Test Records and Results [1021-1022]
1021 Limited disclosure of records and opinions

View Entire Section
In general, the Employee Polygraph Protection Act (EPPA) prohibits any person, other
than the examinee, from disclosing information obtained during a permissible polygraph
test. 14 However, the EPPA permits examiners to disclose information acquired from a
polygraph test to:
the examinee, or another person specifically designated in writing by the examinee, 15
including the Secretary of Labor or his authorized representative; 16
the employer that requested the test; 17
the employer's management personnel, if the disclosure is relevant to conducting their
job responsibilities; 18
a court, governmental agency, arbitrator, or mediator, in accordance with due process of
law, under an order from a court of competent jurisdiction. 19
An examiner may also disclose test charts that do not contain any identifying information
to another examiner that has no direct or indirect interest in the matter, solely for
purposes of consultation and review of the initial examiner's opinion, if no other
materials or records are involved. 20
In addition to the disclosures permitted by an examiner, 21 the EPPA also allows
employers to disclose polygraph information to an appropriate governmental agency if it
constitutes an admission of criminal conduct by the examinee. 22 However, the
employer may not transmit any other test-related information, including opinions, charts,
or other records, to a government agency unless the agency complies with all other
provisions of the Act to obtain such information. 23
Observation: The EPPA prevents an examiner from disclosing an admission of

criminal conduct without a lawful court order, to anyone besides the employer or the
test subject. It also prevents an employer from disclosing criminal admissions to
anyone besides a governmental agency or a test subject. Therefore, courts, arbitrators,
and mediators would need to obtain a lawful court order to acquire the criminal
admissions of a test subject that are in the employer's possession.
Footnotes
Footnote 16. 29 CFR 801.35(a)(4).
Footnote 18. 29 CFR 801.35(a)(2).

1022 Restrictions on adverse actions against test subjects

View Entire Section
The Employee Polygraph Protection Act makes it unlawful for an employer to use a
person's refusal to take a polygraph test permitted by the Act, or to use the results of such
a test, as the sole basis for an adverse employment action. This prohibition applies both
when a test is administered in connection with an ongoing investigation involving
economic loss or injury, 24 and when it is administered by a drug manufacturer or
distributor 25 or a private security firm. 26 However, in the case of an ongoing
investigation, the "reasonable suspicion" 27 required to justify the examination may be
used as additional evidence supporting an adverse employment action against the test
subject. 28 Other evidence that may lawfully be used by the employer to support an
adverse action includes the fact that the employee had access to the property that is the
subject of the investigation, 29 and admissions or statements made by the test subject
before, during, or after a test. 30
The employer may not take an adverse action until it interviews the examinee concerning
the test results, 31 and provides him written copies of:
any opinion or conclusion rendered as a result of the test, 32
the questions asked during the test and the corresponding charted responses. 33
Restrictions on adverse actions which only apply in the context of permissible polygraph
examinations given by drug manufacturer and distributors 34 and security firms 35 are
discussed elsewhere.
Footnotes
Footnote 24. 1009-1013.
29 USCS 2007(a)(1).
Footnote 25. 1003.
Footnote 26. 1004.
29 USCS 2007(a)(2).
Footnote 27. 1012.

Footnote 29. 1011.
Footnote 32. 29 USCS 2007(b)(4)(B)(i).
Footnote 33. 29 USCS 2007(b)(4)(B)(ii).
Footnote 34. 1003.
Footnote 35. 1004.
6. Mandatory Retirement [1023-1054]
1023 Generally
View Entire Section
The ADEA and a number of state statutes 36 specifically prohibit employers from
mandating the retirement of older employees, subject to a number of statutory and
judicially recognized exceptions. However, even if early retirement of older workers is
voluntary 37 or otherwise constitutes permissible age discrimination under an exception
permitted by the ADEA, 38 it nevertheless may be illegal if it entails race
discrimination prohibited by Title VII. For example, racial discrimination by an
employer, in establishing different retirement ages for black and white workers, is
prohibited by Title VII. Therefore, an employer violated Title VII by requiring black
workers to retire at age 65 and white workers to retire at age 70, under the terms of a
collective bargaining agreement. 39
Similarly, an employer that establishes different
voluntary or involuntary retirement ages for male and female employees violates both the
EPA 40 and Title VII. 41
The OFCCP's regulations interpreting Executive Order 11246 also forbid an employer to
specify different mandatory or optional retirement ages on the basis of sex. 42
Furthermore, an employee who elects disability retirement may forego certain remedies
otherwise available under handicap discrimination protections, such as reinstatement and
backpay, if the retirement is voluntary. However, if the action which precipitated the
retirement was unlawful, then the retirement will not be considered voluntary. 43
Therefore, an employee who chooses retirement due to an employer's breach of duty to

reasonably accommodate his handicap, as required under the Rehabilitation Act, 44 has
not voluntarily retired. 45
Footnotes
Footnote 36.
State Aspects A number of state job discrimination or age discrimination statutes
permit the involuntary retirment of employees after they have reached a certain age.
These provisions are discussed in the Employment Coordinator at 22,345 et seq.
Footnote 37. 1027-1031.
Footnote 38. 1026.
Footnote 39. Peters v Missouri P. R. Co. (1973, CA5) 483 F2d 490, 5 BNA FEP Cas 853,
6 BNA FEP Cas 163, 5 CCH EPD 8550, 6 CCH EPD 8690, and cert den 414 US
Forms: Complaint, petition, or declarationdiscrimination in employment based on
ageForced retirement at certain ageFor declaratory and injunctive relief. 5A Am Jur
Pl & Pr Forms (Rev), Civil Rights, Form 131.
Law Reviews: Mandatory Retirement of State-Appointed Judges Under the Age
Discrimination in Employment Act. 76 Cornell L. Rev. 476 (1991).
Footnote 40. 29 CFR 1620.11(f).
Footnote 41. Third CircuitRosen v Public Service Electric & Gas Co. (1973, CA3) 477
F2d 90, 5 BNA FEP Cas 709, 5 CCH EPD 8499, affd without op (CA3) 527 F2d 645,
Seventh CircuitBartmess v Drewrys U. S. A., Inc. (1971, CA7) 444 F2d 1186, 3 BNA
Footnote 42. 41 CFR 60-20.3(h).
Footnote 43. Roskos v U.S. (1977) 213 Ct Cl 34, 549 F2d 1386.
Footnote 45. Arneson v Heckler (1989, CA8) 879 F2d 393, 50 BNA FEP Cas 451, 50
CCH EPD 39138.
1024 ADEA's prohibition against involuntary retirement
View Entire Section

Go to Supplement
A mandatory or optional retirement age is a term or condition of employment 46
governed by the Age Discrimination in Employment Act (ADEA). Under the ADEA,
after January 1, 1990, 47 a seniority system or employee benefit plan including an early
retirement incentive plan, 48 cannot require or permit the involuntary retirement of an
individual over the age of 40, on the basis of age. An employer that acts in compliance
with a seniority system or benefit plan, including an early retirement incentive plan, bears
the burden of proving that its actions are lawful under the ADEA. 49 However, specific
exceptions to the general prohibition against age discrimination, which allow involuntary
retirement, have been provided in the statute and by the courts. 50 The expiration of an
employment contract, even though it coincides with the employee's seventieth birthday,
does not constitute an involuntary retirement prohibited by the ADEA. 51
1024 ----ADEA's prohibition against involuntary retirement [SUPPLEMENT]
Case authorities:
Mere offers for early retirement, even those that include attractive incentives designed to
induce employees who might otherwise stay on job to separate from employer's service,
do not transgress ADEA; to transform offer of early retirement into constructive
discharge, plaintiff must show that offer was nothing more than charade, i.e. subterfuge
disguising employer's desire to purge plaintiff from ranks because of his age. Vega v
Kodak Caribbean, Ltd. (1993, CA1 Puerto Rico) 62 BNA FEP Cas 1198, summary op at
(CA1 Puerto Rico) 21 M.L.W. 3361, 14 R.I.L.W. 434.
Footnotes
Footnote 47. 1025.
Footnote 48. 1030.
Footnote 50. 1026.
Footnote 51. Harrington v Aetna-Bearing Co. (1991, CA7) 921 F2d 717, 54 BNA FEP
1025 Effect of collective bargaining agreements

View Entire Section

The ADEA permitted the mandatory retirement of employees who were at least age 70
under a collective bargaining agreement in effect on June 30, 1986, and which terminated
after January 1, 1987, until the termination of the agreement, or January 1, 1990,
whichever occurred first. 52 For a collective bargaining agreement to have been "in
effect" on June 30, 1986, it had to be ratified, and written notice of the ratification
presented to the international union. The agreement did not need to be executed in final
form. 53
After January 1, 1990, and even prior to that date for employees who were less than 70
years old, a collective bargaining agreement or other seniority plan constitutes a violation
of the ADEA if it either requires the forced retirement of older employees, or
discriminatorily permits such retirement, because such a plan cannot be "bona fide" under
the ADEA. 54 Therefore, a negotiated seniority plan violated the ADEA by requiring
airline pilots who were 60 years old, and thereby prohibited by FAA regulations from
operating an aircraft, to down-bid to engineer positions or be forcibly retired if no
vacancies were available, because pilots who were unable to operate aircraft for non-age
reasons were allowed to "bump" junior engineers from their positions. The plan,
therefore, unlawfully permitted involuntary retirements. 55
Footnotes
Footnote 52. 29 USCS 623, note P.L. 99-509, title IX, Subtitle c, 9204(a).
Footnote 53. Harmon v U.A.W. (1988, ED Mich) 690 F Supp 585, 46 BNA FEP Cas
1218, 49 CCH EPD 38798.
Footnote 55. Trans World Airlines, Inc. v Thurston (1985) 469 US 111, 83 L Ed 2d 523,
1026 Checklist of exceptions to age discrimination in mandatory retirement

View Entire Section
The ADEA's prohibition against involuntary retirement 56 is not violated if the
retirement is based on:
a bona fide occupational qualification reasonably necessary to the normal operation of
the particular business; 57
reasonable factors other than age; 58

an employee's status as a bona fide executive or high-level policymaker; 59
a person's status under a contract of unlimited tenure at an institution of higher
education; 60
a person's status as a state or local fire fighter or law enforcement officer; 61
a person's status as a federal employee in certain occupations governed by
Congressionally established retirement ages. 62
Some employers have also attempted to justify an involuntary retirement because of
economic necessity. 63
Furthermore, there is no age discrimination if the employee decides to retire voluntarily.
64
Footnotes
Footnote 56. 1024.
Footnote 57. 29 USCS 623(f)(1), discussed at 1046-1048.
Footnote 58. 29 USCS 623(f)(1), discussed at 1049.
Footnote 59. 29 USCS 631(c), discussed at 1032 et seq.
Footnote 60. 29 USCS 631(d), discussed at 1050.
Footnote 61. 29 USCS 623(i), discussed at 1051.
Footnote 62. 1052.
Footnote 63. 1053.
Footnote 64. 29 CFR 1625.9(f), discussed at 1027-1031.
b. When is a Retirement Voluntary [1027-1031]
1027 Effect of options to retirement

View Entire Section
Go to Supplement
Neither the prohibition against involuntary retirement 65 nor any other provision of the
ADEA makes it unlawful for an employer to permit individuals to elect early retirement
at a specified age at their own option. 66
However, an employer's acceptance of an offer of early retirement cannot legitimately be
said to be voluntary if other alternatives offered an employee, such as being fired, would
leave him worse off. 67
For example, an employee who wished to continue working
but was given only the option of being fired and forfeiting his benefits under a retirement
plan, as well as forfeiting a year's salary in severance pay and other benefits provided as
an inducement to early retirement, did not voluntarily retire. 68
An employee who accepts an offer of early retirement as an alternative to termination
may also be able to prove that he was the victim of a constructive discharge. 69 For
instance, an employee who had accepted early retirement was constructively discharged
where the offer was understood by both the employer and the employee as a
take-it-or-leave-it proposition, even though working conditions were unchanged after the
offer, the employee had raised no objection or allegation of age discrimination to his
superiors, and he was able to bargain for increased benefits. 70
Even an option to retirement short of discharge, such as a demotion to a position in a
different location, 71 may make acceptance of early retirement an involuntary choice if
accepting the option leaves the employee worse off than if he had retired. Thus, an
employer violated the ADEA by denying the plaintiff a disability retirement because she
was too old, and only giving her the options of taking an unpaid medical leave or a
length-of-service retirement that would pay her less than disability retirement. 72
However, a retirement will be considered voluntary if the employee's acceptance of it
would leave him better off than the alternative offered, such as a discharge for good
cause. 73 Thus, a plant manager's decision to retire was voluntary, even though he had
complained to upper management about the terms of his retirement package, since he was
asked to retire because of poor job performance. 74 Likewise, an employee who chose
to retire under an early retirement incentive program, 75 although he otherwise risked
losing his employment under the employer's reduction in force, was not forced to retire,
since he was being offered a benefit that was not available to younger employees. 76
The standard for determining whether an option to retirement leaves the employee worse
or better off is an objective one. A retirement will not be considered involuntary merely
because the employee perceives that he would be worse off if he rejected an early
retirement offer, 77 or where an external event not caused by the employer, such as the
expiration of a contract, leads employees to retire early for fear that they will lose their
pension benefits if they postpone retirement. 78
Similarly, when an employer's
economically motivated reduction in force left an employee with a choice between
retiring and moving to another location with a lower graded job at the same pay, he was
not coerced into retirement, but made a voluntary "studied choice" 79 to retire. 80
Regardless of the desirability of the option to retirement, the ADEA will not be violated
if the option is age-neutral. Thus, although the employer told employees that if they
rejected early retirement their jobs might be eliminated because of economic concerns,
this option did not suggest age discrimination, because the risk of layoff was shared by
all employees, not just those who were offered the early retirement package. 81
1027 ----Effect of options to retirement [SUPPLEMENT]

Case authorities:
Use of early retirement program to dismiss redundant or underperforming employees is
not by itself violation of ADEA; however, early retirement program designed to force
employees who reach senior age to leave or face significant pressure to resign or retire
might itself create inference of age discrimination. Sempier v Johnson & Higgins (1995,
CA3 NJ) 45 F3d 724, 66 BNA FEP Cas 1214, 30 FR Serv 3d 890, reh, en banc, den
Sempier v Johnson & Higgins (1995, CA3) 1995 US App LEXIS 2927.
Under ADEA, manipulating benefits to force retirement is illegal, such that when
employer forces term of retirement on employee for reasons that include age, employer
violates ADEA. Milwaukee Professional Fire Fighters Ass'n, Local 215 v City of
Wilwaukee (1994, ED Wis) 869 F Supp 633.
Footnotes
Footnote 65. 1024.
Footnote 67. Tribble v Westinghouse Electric Corp. (1982, CA8) 669 F2d 1193, 27 BNA
Footnote 68. Benzel v Valley Nat. Bank (1980, CA9) 633 F2d 1325, 2 EBC 1063, 24
Footnote 70. Hebert v Mohawk Rubber Co. (1989, CA1) 872 F2d 1104, 49 BNA FEP
Cas 1051, 49 CCH EPD 38932.
Footnote 71. Walker v Mountain States Tel. & Tel. Co. (1988, DC Colo) 686 F Supp
Footnote 72. Betts v Hamilton County Bd. of Mental Retardation (1990, CA6) 897 F2d
1380, 12 EBC 1145, 52 BNA FEP Cas 688, cert den (1990, US) 54 BNA FEP Cas 200.
Footnote 73. 966.
Footnote 74. Cannon v McWane, Inc. (1986, DC Utah) 40 BNA FEP Cas 1230, 40 CCH
EPD 36342.
Footnote 75. 1030.
Footnote 76. Duke v Uniroyal, Inc. (1989, ED NC) 719 F Supp 428, 50 BNA FEP Cas
1252, affd in part and rev in part on other grounds (1991, CA4) 928 F2d 1413, 55 BNA
Footnote 77. Bodnar v Synpol, Inc. (1988, CA5) 843 F2d 190, 9 EBC 2285, 46 BNA FEP
Cas 1086, 46 CCH EPD 37926, cert den (US) 102 L Ed 2d 248, 109 S Ct 260, 10 EBC
Footnote 78. Bartman v Allis-Chalmers Corp. (1986, CA7) 799 F2d 311, 7 EBC 2106, 41
S Ct 1304, 8 EBC 1248, 43 BNA FEP Cas 80, 42 CCH EPD 36751.
Footnote 79. 1029.
Footnote 80. Toussaint v Ford Motor Co. (1978, CA10) 581 F2d 812, 17 BNA FEP Cas
1463, 17 CCH EPD 8521.
1028 Effect of acceptance of benefits

View Entire Section
An employee who decides to accept the benefits of an early retirement runs the risk of
being prevented from later challenging the plan as an ADEA violation, since his
retirement may be viewed as voluntary, unless he establishes that he was constructively
discharged 82 on the basis of age. 83 Acceptance of early retirement benefits, even if
the option 84 was possibly losing pension benefits upon the expiration of a collectively
bargained plan, forecloses a constructive discharge finding unless the employer acted to
make working conditions so intolerable as to make early retirement involuntary. 85
Furthermore, an employee's acceptance of generous benefits conditioned on his early
retirement, after consulting with an attorney, 86 made him a voluntary retiree rather
than a victim of age discrimination. 87
However, an employee was permitted to challenge a mandatory retirement plan as
unlawful under the ADEA, even after accepting benefits under the plan, when questions
remained as to whether he knew he could have opted out of the mandatory plan, and
whether his decision not to change plans was made involuntary by economic pressures.
88
Footnotes
Footnote 83. Henn v National Geographic Soc. (1987, CA7) 819 F2d 824, 8 EBC 1821,
Footnote 84. 1027.
Footnote 86. 1029.
Footnote 87. Ackerman v Diamond Shamrock Corp. (1982, CA6) 670 F2d 66, 27 BNA
FEP Cas 1563, 28 CCH EPD 32408.
Footnote 88. Westfall v Cohoes (1988, ND NY) 1988 US Dist LEXIS 6925.
1029 Effect of time available for decision

View Entire Section
The amount of time available for making an early retirement decision is a factor in
determining whether the decision was voluntary. Due to the magnitude of an early
retirement decision, employees must be given a reasonable amount of time to reflect and
weigh their options in order to make a considered choice. The amount of time reasonably
necessary varies depending on the circumstances. Thus, whether long-term employees
who had been given approximately one to three days to accept their employer's early
retirement plan did so voluntarily was a question of weighing the short time period
allotted against the facts that the employees did not complain or ask for more time before
opting to retire, and the employer's claim that the available time was based on its need to
assess and record losses due to the plan before the end of its fiscal year. 89
While the need to make a decision in a short time, under pressure, will not necessarily
make a retirement decision involuntary, a very brief period in which to make a complex
choice may reflect on a person's ability to digest the information necessary to voluntarily
make an informed decision. This, in turn, would show that the offer of information was
illusory and there was no informed choice. 90
The opportunity to consult an attorney or other advisors before making a choice is an
important factor in determining whether the choice was a considered one. Thus, an
employee made an informed choice after having four weeks, 91 or 15 days to consult his
attorney, 92 and when employees had time to discuss the decision with family members
and financial advisors. 93
However, giving employees one-to-three days to consult
their attorneys may not be enough to permit an informed choice. 94
Footnotes
Footnote 89. Paolillo v Dresser Industries, Inc. (1987, CA2) 821 F2d 81, 8 EBC 1975,44
Footnote 91. Ackerman v Diamond Shamrock Corp. (1982, CA6) 670 F2d 66, 27 BNA
FEP Cas 1563, 28 CCH EPD 32408.
Footnote 94. Paolillo v Dresser Industries, Inc. (1987, CA2) 821 F2d 81, 8 EBC 1975, 44
1030 Effect of incentives

View Entire Section
Go to Supplement
The Older Workers Benefit Protection Act amendments to the ADEA 95 added an
exception to the statute permitting employers to provide a voluntary early retirement
incentive plan that is consistent with the relevant purposes of the ADEA, and placed the
burden of proving that consistency on the employer. 96 Therefore, early retirement
incentive plans that deny or reduce benefits to older workers while continuing to make
them available to younger workers, or that reduce benefits to older workers based on
age-related stereotypes, would be unlawful. 97 However, early retirement incentive
plans that help employers and workers resolve issues that arise from the impact of age on
employment, or promote the employment or retention of older workers, while still
prohibiting arbitrary age discrimination in employee benefits, are lawful. Examples of
such lawful early retirement incentives include those that provide a flat dollar amount,
service-based benefits, a percentage of salary, or those that provide flat dollar increases
in pension benefits, percentage increases, or that impute years of service and/or age. 98
Employees who have been attracted by incentives to select retirement, especially early
retirement benefits in excess of the normal retirement benefits, may claim that such
attractions made their selection involuntary. However, the mere fact that the available
benefits "overwhelmed" the employee, to the extent that they dictated the choice, does
not make the retirement involuntary. As is the case with any option situation 99 the fact
that the option of early retirement makes the employee better off than the option of
continuing to work under lawful conditions does not constitute either a constructive
discharge or an involuntary retirement. 1

Even if the incentive to retire early is the
potential loss of pension benefits by the imminent expiration of a collectively bargained
pension plan, employees have no ADEA cause of action unless they show that some act
by the employer made their working conditions so intolerable that they were forced to
retire. 2
While a plan adopted for the purpose of withholding benefits from older persons in order
to induce them to retire would violate the ADEA by providing negative incentives to
continue working, a plan that offers all workers a chance to take early retirement,
irrespective of age, is lawful if it also has a legitimate business purpose, such as reducing
the cost of keeping older workers on the payroll. 3
When an employer cuts the allowable vacation time of older employees in order to prod
them to take early retirement, it also violates the ADEA. However, an employer's
four-week cap on paid vacation time, which resulted in a loss of three weeks' vacation
time for employers with 30 or more years of seniority, was unlikely to be a decisive
factor in an employee's decision concerning whether to quit his job for the modest
benefits of early retirement. Furthermore, there was no evidence that the employer
imposed the cap in order to so offend older employees that they would take early
retirement instead. 4
1030 ----Effect of incentives [SUPPLEMENT]
Practice Aids: The Older Worker's Benefit Protection Act of 1990: The end of
ratification and tender back in ADEA waiver cases, 73 Bos U LR 639 (1993).
Age-based exit incentives, coercion, and the prospective waiver of ADEA rights: The
failure of the Older Workers Benefit Protection Act, 79 Va LR 1271 (1993).
Footnotes
Footnote 96. 29 USCS 623(f)(2)(B)(ii).
Footnote 97. S Rept 101-263, 4/5/90, p. 27.
Footnote 98. S Rept 101-263, 4/5/90, pp. 27-28.
Footnote 99. 1027.
Footnote 1. Henn v National Geographic Soc. (1987, CA7) 819 F2d 824, 8 EBC 1821, 43
Footnote 3. Cipriano v Board of Education (1988, WD NY) 700 F Supp 1199, 10 EBC
Footnote 4. Finnegan v Trans World Airlines, Inc. (1992, CA7) 967 F2d 1161, 59 BNA
FEP Cas 568.
1031 Effect of collective bargaining agreements

View Entire Section
If a collective bargaining agreement contains a mandatory retirement age, the question
arises as to whether an employee covered by that agreement is voluntarily retiring. The
Seventh Circuit has said that such retirements are not voluntary because the ADEA
creates individual rights that cannot be waived through collective bargaining. Thus, an
employee did not implicitly consent to retire at age 65 even though her union had
negotiated a mandatory retirement age of 65. 5
Footnotes
Footnote 5. EEOC v County of Calumet (1982, CA7) 686 F2d 1249, 3 EBC 2065, 29
c. Permissible Retirement of Bona Fide Executives and High-Level Policymakers
[1032-1045]
1032 Generally
View Entire Section
The ADEA explicitly allows the involuntary retirement of an individual age 65 or older
who, for the two years immediately before his retirement, was employed in a bona fide
executive 6 or high policy-making position 7 and who is entitled to an immediate 8
nonforfeitable 9 annual 10 retirement benefit that qualifies 11 in terms of amount. 12
An employee who holds two or more positions in the two years prior to retirement is
subject to the exemption only if each of the jobs is an executive or high policy-making
position. 13
This exception must be narrowly construed, 14 and does not apply to federal employees.
15
Footnotes
Footnote 6. 1033.
Footnote 7. 1034.
Footnote 8. 1036.
Footnote 9. 1037.
Footnote 10. 1038.
Footnote 11. 1035.
As to the minimum required to qualify, see 1039-1045.
Footnote 13. 29 CFR 1625.12(f).
Footnote 14. 29 CFR 1625.12(b).
1033 Who is a bona fide executive

View Entire Section
For purposes of the ADEA exception permitting the involuntary retirement of a bona fide
executive, 16 a bona fide executive is an employee meeting all requirements for
exemption from the minimum wage and overtime provisions of the Fair Labor Standards
Act (FLSA). 17
In order to qualify an employee as a "bona fide executive," the employer must initially
show that the employee's job responsibilities satisfy five specific requirements without
regard to the level of his salary or compensation. 18 Specifically, the employee must:
be engaged in the management of the enterprise in which he is employed or in the
management of a customarily recognized department or subdivision of that enterprise; 19
customarily and regularly direct the work of two or more other employees; 20
have the authority to hire or fire other employees, or at least the authority to make
suggestions or recommendations as to hiring and firing which are given particular weight
in the operation of the enterprise; 21
regularly and customarily exercise discretionary powers; 22

with some exceptions, spend not more than 20% of his time in activities that are not
directly and closely related to the performance of the work described above. 23
Even if an employee qualifies as a bona fide executive under these requirements, the
employer must still show that the employee is among the very few top level employees
who exercise substantial executive authority over a significant number of employees and
a large volume of business. 24
The head of a significant and substantial local or regional operation of a corporation or
other business organization, such as a major production facility or retail establishment,
but not the head of a minor branch, warehouse, or retail store, is covered by the term
"bona fide executive." Also included within the exemption are employees who head
corporate headquarters' divisions, such as finance, marketing, legal, production,
manufacturing, or the management of different product lines. In large organizations,
their immediate assistants would also be covered if they exercise executive authority and
possess responsibility comparable to or greater than that possessed by the head of a
significant and substantial local operation who comes within the exemption. 25
Footnotes
Footnote 16. 1032.
Footnote 18. 29 CFR 1625.12(d)(1).
Footnote 24. 29 CFR 1625.12(d)(2).
A corporate chief counsel's compulsory retirement at age 65 under the bona fide
executive exemption violated the ADEA, since the attorney had only a minimal amount
of supervisory responsibilities and exercised no control over matters of significant
importance to the operation of his division. Further, the attorney's role in hiring and
firing decisions was minimal, and although he possessed the title of chief counsel, his
position was considerably removed from the top of the law department. Whittlesey v
Union Carbide Corp. (1983, SD NY) 567 F Supp 1320, 4 EBC 1784, 32 BNA FEP Cas
473, 32 CCH EPD 33728, affd (CA2) 742 F2d 724, 5 EBC 2002, 35 BNA FEP Cas
1089, 35 CCH EPD 34620.
A corporate subsidiary's general counsel was found to be a bona fide executive since he
had extensive supervisory authority over his subordinates and would qualify for the
mandatory retirement exception of the ADEA even if he had not exercised all the
authority conferred upon him. Breckenridge v Bristol-Meyers Co. (1987, SD Ind) 43
An employee's job duties as head of the employer's education division, one of 12
divisions performing the employer's core functions, made him a bona fide executive and
not merely a middle-management employee. He had charge of 25 to 30 employees, a $4
million budget, was only three superiors removed from reporting to the board of
directors, and was, when he retired, the employer's tenth highest-paid employee in a work
force of 1,900 employees. Moreover, his job description assigned him responsibility for
planning, organizing, managing and administrating existing programs, designing and
initiating new programs, and his position was described in a job advertisement as a key
management position. Passer v American Chemical Soc. (1991) 290 App DC 156, 935
1034 What is a "high policy-making position"

View Entire Section
Under the ADEA's exception allowing involuntary retirement, 26 a "high policy-making
position" is limited to certain top level employees who are not bona fide executives. 27
These include individuals who have little or no "line authority" but who play a significant
role in the formulation, development, and implementation of corporate policy. For
example, the chief economist or the chief research scientist of a corporation would meet
the definition of a high policy-making employee if his expertise and access to top
management provided him significant influence over the direction of the corporation,
even though he has little line authority. 28
However, the early retirement of a corporate chief counsel violated the ADEA, since the
attorney's participation in policy-making forums was explicitly restricted to giving legal
advice to the policymakers, and his access to the high policy-making levels of
management was virtually nil. 29 In contrast to the corporation's chief counsel in
Whittlesey (above), who was not in a "high policy-making position" because he was
merely one attorney among many with no direct access to high policy-making levels of
management, a corporate subsidiary's general counsel was in a "high policy-making
position" because he was an officer of the subsidiary and had frequent and direct contact
with its decision makers and policy shapers. 30
The support personnel for a "high policy-making position" are not eligible for the
exception even if they supervise the development and draft the recommendations of
policies submitted by their supervisors. 31
Footnotes
Footnote 26. 1032.
Footnote 27. 1033.
Footnote 29. Whittlesey v Union Carbide Corp. (1983, SD NY) 567 F Supp 1320, 4 EBC
1784, 32 BNA FEP Cas 473, 32 CCH EPD 33728, affd (CA2) 742 F2d 724, 5 EBC
Footnote 30. Breckenridge v Bristol-Meyers Co. (1987, SD Ind) 43 BNA FEP Cas 1011,
43 CCH EPD 36989.
Footnote 31. 29 USCS 1625.12(e).
1035 Qualifying benefit amount for the executive and policymaker exceptions
View Entire Section
In addition to being a bona fide executive or holding a high policy-making position, an
employee, in order to come within the ADEA's exception permitting the involuntary
retirement of those individuals, 32 must be entitled to an immediate 33 and
nonforfeitable 34 annual retirement benefit of at least $44,000. 35 The required
statutory amount is $27,000 for those employees who were compelled to retire before
October 9, 1984. 36
This qualifying benefit is calculated in accordance with a number of statutory and
regulatory requirements. 37
Footnotes
Footnote 32. 1032.
Footnote 33. 1036.
Footnote 34. 1037.
Footnote 36. 29 USCS 631(c)(1) before amendment by P.L. 98-459, Title VIII,
802(c)(1).
Footnote 37. 1038-1045.
1036 Requirement that benefit be "immediate"

View Entire Section
In order to subject a bona fide executive or high-level policymaker to early retirement
under the ADEA, 38 the annual retirement benefit to which that person is entitled must
be "immediate." 39 This means that payment of plan benefits, either in a lump sum or
in the first of a series of periodic payments, must occur no later than 60 days after the
effective date of the retirement. However, the fact that an employee will receive benefits
only after the expiration of the 60-day period will not preclude his mandatory retirement
if he could have elected to receive benefits within that period. 40
Footnotes
Footnote 38. 1032.
Footnote 40. 29 CFR 1625.12(i).
1037 Requirement that benefit be "nonforfeitable"

View Entire Section
In order to subject a bona fide executive or high-level policymaker to early retirement
under the ADEA, 41 the annual retirement benefit to which that person is entitled must
be "nonforfeitable." 42 This means that the exception may not be applied to an
employee subject to plan provisions that could cause the cessation of retirement
payments, or result in reduction of benefits to less than the dollar amount required by the
statute 43 in any one year. For example, where a plan contains a provision which
suspends benefits if a retiree engages in litigation against a former employer, or obtains
employment with the former employer's competitor, the retirement benefit is considered
forfeitable. However, the benefits are not deemed forfeitable solely because they are
discontinued or suspended for reasons permitted under the Internal Revenue Code (
B-14,000 et seq.). 44
Observation: An annual retirement benefit will not necessarily be deemed

forfeitable simply because the minimum qualifying benefit amount is not guaranteed
against the possibility of plan bankruptcy, or is subject to benefit restrictions in the
event of early termination of the plan. However, as of the effective date of the
retirement, there must be a reasonable expectation that the plan will meet its
obligations. 45
Footnotes
Footnote 41. 1032.
Footnote 43. 1035.
Footnote 44. 29 CFR 1625.12(k)(1).
Footnote 45. 29 CFR 1625.12(k)(2).
1038 Requirement that benefit be figured on an annual basis

View Entire Section
The annual retirement benefit necessary to permit the involuntary retirement of bona fide
executives or high-level policymakers 46 is the sum of amounts payable during each
one-year period from the date on which benefits become receivable by the retiree. Once
established, the annual period on which calculations are based cannot be changed from
year to year. 47
Footnotes
Footnote 46. 1032.
Footnote 47. 29 CFR 1625.12(h).
1039 What benefits may be counted toward the minimum required to qualify for
the exemption
View Entire Section
In determining whether the aggregate annual retirement benefit of a particular bona fide
executive or high policy-making employee equals the required minimum dollar amountV
48 in order to qualify for permissible involuntary retirement under the ADEA, 49 only
benefits authorized by and provided under the terms of a pension, profit sharing, savings,
or deferred compensation plan, or any combination of those types of plans, may be
counted. 50 Approved plans include, among others, stock bonus, thrift, and simplified
employee pensions. However, the value of benefits from health or life insurance plans
cannot be counted. 51
Footnotes
Footnote 48. 1035.
Footnote 49. 1032.
Footnote 51. 29 CFR 1627.17(d).
1040 Calculation of benefits

View Entire Section
The $44,000 annual retirement benefit that subjects a "bona fide executive" or the holder
of a "high policy-making position" to permissible involuntary retirement under the
ADEA 52 must be calculated in accordance with several statutory and regulatory
requirements.
To qualify, the plan must be the equivalent of a straight life annuity. 53 In arriving at
the value of the benefit, amounts attributable to Social Security, employee contributions,
54 contributions of prior employers, 55 and rollover contributions 56 must be
excluded, subject to specific rules in each instance, except insofar as Social Security
payments are readily determinable. 57
Benefit valuations must be made on the basis of reasonable actuarial assumptions with
respect to mortality and interest. In excluding benefits which are available only after the
retiree's death, it is not necessary to determine the life expectancy of each person on an
individual basis. A reasonable actuarial assumption with respect to mortality is
sufficient. 58
To subject a "bona fide executive" to mandatory retirement under the ADEA, the $44,000
annual retirement benefit received by the executive must be due under the terms of the
applicable retirement plan 59 and not be the product of manipulation of other benefits
that the employer then offsets against it in order to boost the total benefit over the
statutory threshold for the exception. Such manipulation is prohibited even if it results in
the executive actually receiving more than $44,000. For example, where the employer
allegedly had consistently calculated the plaintiff's pension entitlement before his
retirement to be slightly less than $44,000, based on a particular Social Security offset
amount, but then altered its method of calculating his entitlement after his retirement by
substituting a lower offset amount and thereby boosting his pension income to just over
the $44,000 threshold, the trial court was ordered to recalculate his true entitlement under
the terms of the employer's pension plan. 60
Footnotes
Footnote 52. 1032.
Footnote 53. 1041.
Footnote 55. 1044.
Footnote 56. 1045.
Footnote 57. 29 CFR 1627.17(e).
Footnote 58. 29 CFR 1627.17(c)(5).
Footnote 59. 1039.
Footnote 60. Passer v American Chemical Soc. (1991) 290 App DC 156, 935 F2d 322, 56
1041 Requirement that benefit be equivalent of straight life annuity

View Entire Section
For purposes of calculating the qualifying benefit amount that permits the involuntary
retirement of executives and high-level policymakers under the ADEA, 61 if a benefit is
in a form other than a straight life annuity with no ancillary benefits, or if employees
contribute to the plan or make rollover contributions, the benefit must be adjusted so that
it is the equivalent of a straight life annuity with no ancillary benefits under a plan to
which employees do not contribute or do not make rollover contributions. 62
This requirement is satisfied if the employee has the option of receiving, during each year
following retirement, an annual payment of at least the minimum qualifying dollar
amount 63 or more frequent periodic payments that total, after the required exclusions,
64 at least the minimum amount. It is also satisfied if the employee has the option of
receiving, upon retirement, a lump-sum payment large enough to purchase a single life
annuity with no ancillary benefits, yielding at least the qualifying dollar amount each
year as adjusted. 65 In addition, the requirement is satisfied if an employee is entitled to
receive, upon retirement, benefits whose aggregate value as of the retirement date is at
least equal to the qualifying dollar amount per year as adjusted, with respect to those
payments which are scheduled to be made within the period of the employee's life
expectancy. 66
In determining whether the qualifying dollar amount has been met, benefits received
under any of the above options may be aggregated. 67 Where an employee who has any
of these options instead freely selects still another available option or options providing
for payments after his or her death, the value of these payments may be included in
determining whether all of the retirement benefits are actuarially equivalent to a single
life annuity of at least the qualifying dollar amount. However, if the employee's only
choice is to have certain benefits provided after his or her death, their value may not be
included in the determination. 68
Footnotes
Footnote 61. 1032.
Footnote 63. 1035.
Footnote 64. 1042-1045.
Footnote 65. 29 CFR 1627.17(c)(2).
Footnote 66. 29 CFR 1627.17(c)(3).
Footnote 67. 29 CFR 1627.17(c)(6).
Footnote 68. 29 CFR 1627.17(c)(4).
1042 Exclusion of employee contributions to defined contribution plans from

calculation of qualifying benefit amount
View Entire Section
Employee contributions to either a defined contribution plan or a defined benefit plan are
excluded in calculating the qualifying retirement benefit 69 necessary to involuntarily
retire an executive or high-level policymaker under the ADEA. 70
With respect to a defined contribution plan for which one or more separate accounts are
maintained for each participant, the balance in each account for the employee's
contributions, and all income, expenses, gains, and losses attributable to those
contributions, must be excluded. 71
If a separate account is not maintained for an employee's contributions to a defined
contribution plan, the amount attributable to employee contributions is determined by
multiplying the benefit received by a percentage which reflects the ratio of the
employee's contributions to total contributions under the plan, adjusted for withdrawals.
72
Footnotes
Footnote 69. 1035.
Footnote 70. 29 CFR 1627.17(e)(2).
Footnote 71. 29 CFR 1627.17(e)(2)(i)(A).
Footnote 72. 29 CFR 1627.17(e)(2)(i)(B).
1043 Exclusion of employee contributions to defined benefit plans from

calculation of qualifying amount
View Entire Section
Defined benefit plans include any retirement income plan that is not a defined
contribution plan, 73 for purposes of calculating the qualifying amount 74 necessary to
permit the involuntary retirement of an executive or high-level policymaker under the
ADEA. 75 For plans in which a separate account is maintained, the amount excludable
from the qualified retirement benefit represents the account's balance with respect to the
employee's contributions, adjusted to reflect income, expenses, gains, and losses
attributable to those contributions. 76
If a separate account is not maintained for a defined benefit plan, all the employee's
contributions must be converted actuarially to a single life annuity without ancillary
benefits commencing at retirement age. Interest on these contributions is credited at a
yearly rate of 5% from the time the contributions were made until the retirement date.
However, interest is credited at the rate specified in the plan for the period prior to the
time the plan became subject to the Employee Retirement Income Security Act. The
amount of the employee's accumulated contributions is then multiplied by a conversion
factor reducing them to a single life annuity commencing at the age of actual retirement.
The conversion factor is 10% for ages 65 through 66, 11% for ages 67 through 68, and
12% for age 69. The amount that remains after the application of the conversion factor
represents the figure that must be subtracted from the annual pension payment for
purposes of determining the qualifying retirement benefit. 77
Illustration: An employee is scheduled to receive a pension from a defined benefit

plan of $50,000 per year. Over the years, he has contributed $150,000 to the plan, and,
at age 65, this amount, when contributions have been compounded at appropriate
annual interest rates, is equal to $240,000. Ten percent is an appropriate conversion
factor. When the $240,000 is multiplied by this conversion factor, the product is
$24,000, which represents that part of the $50,000 annual pension payment which is
attributable to employee contributions. The difference$26,000represents the
employer's contribution, which is too low to meet the test in the exemption. 78
Illustration: A particular defined contribution plan does not maintain separate

accounts for employee contributions. An employee's annual retirement benefit under
the plan is $40,000. The employee has contributed $96,000 and the employer has
contributed $144,000 to the employee's individual account; no withdrawals have been
made. The amount of the $40,000 annual benefit attributable to employee
contributions is $40,000 X $96,000/$96,000 + $144,000 = $16,000. Hence, the
employer's share of the $40,000 annual retirement benefit is $40,000 minus $16,000 or
$24,000too low to fall within the exemption. 79
Footnotes
Footnote 73. 1042.
Footnote 74. 1035.
Footnote 75. 29 CFR 1627.17(e)(2).
Footnote 76. 29 CFR 1627.17(e)(2)(ii)(A).
Footnote 77. 29 CFR 1627.17(e)(2)(ii)(B).
Footnote 78. 29 CFR 1627.17(e)(2)(ii)(B).
Footnote 79. 29 CFR 1627.17(e)(2)(i)(B).
1044 Exclusion of prior employer's contributions from qualifying amount

determination
View Entire Section
Amounts attributable to contributions of prior employers must be excluded in
determining the qualifying retirement benefit 80 that permits the involuntary retirement
of an executive or high-level policymaker under the ADEA. 81
In determining who is a "prior employer" where an employee has worked for affiliated
corporations, earlier employers who share at least a 50% ownership in common with an
employee's current employer are not considered. 82
Where a current employer maintains or contributes to the same retirement plan as prior
employers, the benefit attributable to the current employer is the total benefit received by
the employee, reduced by the benefits that the employee would have received from the
plan if he or she had never worked for the current employer. In making this calculation,
all benefits are deemed to be vested, even if benefits accrued as a result of service with a
prior employer were not vested. 83
Footnotes
Footnote 80. 1035.
Footnote 81. 29 CFR 1627.17(e)(3).
Footnote 82. 29 CFR 1627.17(e)(3)(i).
Footnote 83. 29 CFR 1627.17(e)(3)(ii).
1045 Exclusion of rollover contributions from computation of qualifying benefit

amount
View Entire Section
Amounts attributable to rollover contributions are treated as employee contributions and
excluded from the computation of the qualifying retirement benefit amount 84 under the
rules relating to employee contributions, 85 for purposes of applying the ADEA's
exception permitting the involuntary retirement of executions and high-level
policymakers. 86
Footnotes
Footnote 84. 1035.
Footnote 86. 29 CFR 1627.17(e)(4).
d. Permissible Retirement Under a Bona Fide Occupational Qualification
[1046-1048]
1046 Generally
View Entire Section
The ADEA permits the mandatory retirement of an employee if it is justified under the
bona fide occupational qualification (BFOQ) exception in the statute. 87 Safety
considerations are the most frequently asserted reasons by employers asserting a BFOQ
defense to a mandatory retirement. The EEOC's position is that safety considerations are
valid only when the employer shows that the BFOQ achieves safety, and that no other
acceptable alternative would better or equally advance the safety consideration, with less
discriminatory effect. 88
Footnotes
BFOQs are discussed, generally, at 269 et seq.
1047 Pilots
View Entire Section
Under the Federal Aviation Act, the federal government can set minimum and maximum
age limits for airline pilots. 89 The FAA, in exercising this authority, has concluded
that the commencement of disease and other debilitations is age-related, and that, as to
individual pilots over age 60, there is no reliable means for predicting whether the
occurrence of illness or a medical condition (e.g., an in-flight heart attack) would create a
safety or flight risk. 90 Thus, an FAA regulation prohibits any person from serving as a
pilot or first officer on a commercial flight if that person has reached his 60th birthday.
91 The Seventh Circuit has held that the FAA is justified in refusing to grant any
exemptions to this regulation, because the experience gained by older pilots does not
offset possible age-related health or skill impairments to clearly guarantee no decline in
safety. However, the FAA's age-60 rule is not sacrosanct or untouchable, because of the
difficulty in statistically balancing experience against reliable indicators of good health
and ability. Therefore, the agency should give serious attention to the great body of
opinion disfavoring this regulation and consider the feasibility of ascertaining the good
health and ability of older pilots through frequent and sophisticated testing. 92
Although an airline may raise the age-60 retirement regulation as a justification for
requiring the retirement of commercial pilots, it is unclear whether the rule itself is
sufficient justification to establish a bona fide occupational qualification (BFOQ) under
the ADEA, permitting the retirement of noncommercial pilots. For example, a court in
the Fifth Circuit has held that an employer could rely upon the FAA's expertise with
regard to commercial pilots and apply the age-60 rule to its corporate pilots as a BFOQ.
93 Similarly, the Ninth Circuit held that the regulation constitutes relevant but not
conclusive evidence that age was also a BFOQ for an aircraft manufacturer's pilots, 94
and that the Army could rely on the rule in incorporating it into its contract with a
transport service that was not under the FAA's jurisdiction. 95 However, the Sixth
Circuit has held that an employer that retired its corporate pilots at age 60, in reliance on
the rule, did not establish a BFOQ as a matter of law, even though the rule was
reasonable. Rather, the employer had to prove that the cutoff was reasonably necessary.
96 Under the rationale of Tuohy (abovae), a private employer's mandatory retirement
age of 62 for its pilots was reasonably necessary and, therefore, constituted a BFOQ. The
employer not only relied on the FAA rule, but also supplied evidence of a high degree of
congruity between its air operations and those of commercial airlines. 97
In support of a BFOQ for an age 60 retirement of its test pilots, a helicopter manufacturer
was permitted to introduce both the FAA's rule, and expert testimony that was not relied
on in implementing the BFOQ. Furthermore, age could be a BFOQ even though some of
the pilots forced to retire were performing efficiently and safely as of the date of their
retirement, because an employer asserting a BFOQ only has to show that individualized
testing of job fitness is impossible or highly impracticable. 98 Nevertheless, expert
testimony based on studies reflecting physiological and psychological changes that
accompany the aging process in the general population could not justify a retirement
under the BFOQ exception for aircraft production test pilots. While the studies shed little
light on the relative capabilities of test pilots as a group to perform their tasks adequately
beyond a certain age, the plaintiff's evidence showed that age changes were much slower
among test pilots as a group than among the general population. 99
Footnotes
Footnote 89. 49 USCS 1421(a)(5), 1421(b).
Footnote 90. 49 Fed. Reg. 14695 (1984).
Footnote 91. 14 CFR 121.383(c).
Footnote 92. Baker v Federal Aviation Admin. (1990, CA7) 917 F2d 318, 55 CCH EPD
40403, cert den (US) 113 L Ed 2d 445, 111 S Ct 1388, 56 CCH EPD 40629.
Footnote 93. EEOC v El Paso Natural Gas Co. (1985, WD Tex) 626 F Supp 182, 39
BNA FEP Cas 1206, 39 CCH EPD 35930, app dismd (CA5) 40 CCH EPD 36339.
Footnote 94. EEOC v Boeing Co. (1988, CA9) 843 F2d 1213, 9 EBC 1953, 46 BNA FEP
FEP Cas 1776, 48 CCH EPD 38455.
Footnote 95. Gathercole v Global Associates (1984, CA9) 34 CCH EPD 34563, cert
34810.
Footnote 96. Tuohy v Ford Motor Co. (1982, CA6) 675 F2d 842, 28 BNA FEP Cas 1116,
28 CCH EPD 32658.
Footnote 97. Rasberg v Nationwide Life Ins. Co. (1987, SD Ohio) 671 F Supp 494, 43
BNA FEP Cas 1742.
Footnote 98. Williams v Hughes Helicopters, Inc. (1986, CA9) 806 F2d 1387, 42 BNA
FEP Cas 1035, 42 CCH EPD 36768.
Footnote 99. Houghton v McDonnell Douglas Corp. (1977, CA8) 553 F2d 561, 14 BNA
1048 Flight engineers

View Entire Section
The FAA's age-60 retirement rule for airline pilots 1 does not also compel the
mandatory retirement of flight engineers. The FAA has cited two reasons for declining to
apply the rule to flight engineers. First, a flight engineer's safety-related duties do not
necessarily require taking over the responsibilities of the pilot in command. Second, the
flight engineer is rarely a contributing cause or factor in commercial aircraft accidents or
incidents. 2
However, airlines have tried to use the rule to justify the mandatory retirement of flight
engineers as a bona fide occupational qualification (BFOQ) under the ADEA. The rule's
probative value varies with the weight of the evidence supporting its safety rationale, and
the congruity between the occupations at issue. For example, the FAA and airlines
recognize that the qualifications for a flight engineer are less rigorous than those required
for a pilot. 3
Thus, the BFOQ defense should be determined by objective evidence
concerning the role played by the flight engineers in flight safety, and medical science's
ability to detect and predict medical conditions in those over the age of 60, not by the
airline's subjective belief or good faith. 4
Footnotes
Footnote 1. 1047.
Footnote 2. 49 Fed Reg. 14694.
Footnote 4. Monroe v United Air Lines, Inc. (1984, CA7) 736 F2d 394, 5 EBC 1745, 34
BNA FEP Cas 1622, 34 CCH EPD 34535, cert dismd 469 US 1198, 83 L Ed 2d 984,
105 S Ct 983 and cert den 470 US 1004, 84 L Ed 2d 378, 105 S Ct 1356, 105 S Ct
e. Other Situations Permitting Mandatory Retirement Under the ADEA
[1049-1054]
1049 Retirement for cause

View Entire Section

Involuntary retirement for cause is essentially a discharge. 5 The primary difference is
that use of the term retirement implies that the individual is eligible for retirement
benefits. Therefore, as in discharge situations arising under the ADEA, it is not unlawful
to require an early retirement that is based on a reasonable factor other than age, 6 such
as disability or poor performance. 7
Thus, an employee's involuntary early retirement did not violate the ADEA, where it was
established that he had been selected for termination based on his poor performance
evaluations. 8
Footnotes
Footnote 7. S Rept No 95-493, to accompany H.R. 5383, 10/12/77.
Footnote 8. Dorsch v L.B. Foster Co. (1986, CA7) 782 F2d 1421, 40 BNA FEP Cas 201,
39 CCH EPD 35887.
1050 Tenured faculty

View Entire Section
The ADEA permits the compulsory retirement of an individual 70 years of age or older
who is serving under a contract of unlimited tenure, or similar arrangement providing
such tenure, at an institution of higher education. 9 The special exception applies only
between January 1, 1987, 10 and December 31, 1993. 11
An employer asserting this exception permitting mandatory retirement must supply the
EEOC with descriptions of its tenure programs, position descriptions of the prospective
retirees, evidence that it is an institute of higher education as defined in the Higher
Education Act of 1965 (20 USCS 1001 et seq.), and evidence that the individuals being
retired are 70 years of age or older, among other information. 12
Footnotes
Footnote 10. 29 USCS 623 note (PL 99-592 7(a)).

Footnote 11. 29 USCS 631 note (PL 99-592 6(b)).
By December 31, 1993, the EEOC and the National Academy of Sciences must conduct a
study to analyze the potential consequences of eliminating mandatory retirement in
institutions of higher education. 29 USCS 624 note (PL 99-592 6(c)).
1051 State and local fire fighters and law enforcement officers
View Entire Section
The ADEA permits a state, its political subdivisions and agencies, and interstate agencies
to discharge fire fighters and law enforcement officials who have reached the retirement
age under applicable state or local law in effect on March 3, 1983, if the action is taken
under a bona fide retirement plan that is not a means of evading the ADEA. 13 The
exception applies to law enforcement officers and fire fighters who are primarily or
directly involved in law enforcement or fire fighting and supervisors of those jobs who
are not so primarily or directly involved. 14
State aspects: Numerous state courts have decided or discussed the lawfulness or
propriety of mandatory retirement of public officers or employees solely by reason of
age. 15
Footnotes
Annotation: Mandatory retirement of public officer or employee based on age, 81
ALR3d 811.
Footnote 14. Boylan v State (1989) 116 NJ 236, 561 A2d 552, 11 EBC 1481, 51 CCH
EPD 39358, cert den 494 US 1061, 108 L Ed 2d 778, 110 S Ct 1539.
Since the exception for state and local fire fighters is broader than just for mandatory
retirement situations, it is discussed in the context of age discrimination at 168 et seq.
Footnote 15.
ALR3d 811.
1052 Federal air traffic controllers, law enforcement officers, and fire fighters
View Entire Section
Federal law requires an air traffic controller to be retired before age 57, 16 and federal
law enforcement officers and fire fighters to be retired at age 55, or after 20 years of
service, whichever is later, 17 or at age 60 pursuant to a specific exemption from the
head of the agency. These provisions have been found to be valid despite constitutional
challenges and potentially contrary requirements in the ADEA. 18
Footnotes
Footnote 18. Bowman v U.S. Dept. of Justice, Federal Prison System (1981, ED Va) 510
F Supp 1183, 25 BNA FEP Cas 1178, affd without op (CA4) 679 F2d 876, 29 BNA FEP
Cas 1472, cert den 459 US 1072, 74 L Ed 2d 635, 103 S Ct 494, 30 BNA FEP Cas 592.
ALR3d 811.
1053 Economic necessity

View Entire Section
Go to Supplement
Employers have had some success in arguing that employees voluntarily decided to retire
when offered two less-than-optimal choices in the context of economic reorganization or
a reduction in force. However, the defense has failed to prevent age discrimination
findings under the ADEA where the voluntariness of the retirement was not an issue.
The Sixth Circuit has articulated a two-part test for establishing an economic necessity
defense. First, the necessity for drastic cost reduction must be real, similar to the
showing required in antitrust cases involving the "failing company" defense. Second,
forced early retirement must be the least detrimental alternative means available to
reduce costs. The first part of the test was satisfied by an employer on the verge of
insolvency. However, forced retirement was not the least discriminatory alternative,
because the employer did not provide employees 55 years of age and older who were
forced to retire the alternative of recall if the company's financial position improved, as it
had to employees under 55 years of age. 19
The Third Circuit, however, has held that economic considerations can never be used to
justify mandatory early retirement. 20
Furthermore, employers faced with financial
problems that compelled the retirement of all pension eligibles committed both disparate
treatment and disparate impact discrimination 21 in violation of the ADEA, since the
age-based criteria necessarily included only persons within the protected age range. The
economic situation was merely the catalyst for the employers' actions, and it was the
manner of the retirement selection process that violated the statute. 22
Even if an employer has a legitimate economic need to reduce and restructure its work
force, age must play no role in the selection of whom to retire. Thus, an employer
wilfully violated the ADEA by discharging many older employees and forcing others into
early retirement, using age as a determining factor in many instances, as part of a major
reorganization designed to cut costs and reverse a decline in profits. 23
1053 ----Economic necessity [SUPPLEMENT]
Case authorities:
Restructuring/reorganizing of corporate operations to cut costs and increase efficiency is
legitimate non-discriminatory reason for termination of employees. McCloskey v Union
Carbide Corp. (1993, DC Conn) 815 F Supp 78.
Footnotes
Footnote 19. EEOC v Chrysler Corp. (1984, CA6) 733 F2d 1183, 5 EBC 1875, 34 BNA
FEP Cas 1401, 34 CCH EPD 34395.
Footnote 20. EEOC v Altoona (1983, CA3) 723 F2d 4, 4 EBC 2670, 33 BNA FEP Cas
Footnote 22. EEOC v New Castle (1983, WD Pa) 4 EBC 2291, 32 BNA FEP Cas 1409,
33 CCH EPD 34257, affd without op (CA3) 740 F2d 956, 34 BNA FEP Cas 836, 34
CCH EPD 34520; Popko v Clairton (1983, WD Pa) 570 F Supp 446, 4 EBC 2285, 32
Footnote 23. EEOC v Liggett & Meyers, Inc. (1982, ED NC) 29 BNA FEP Cas 1611.
1054 Discontinuation of a discriminatory plan

View Entire Section
An employer's mere assertion that a discriminatory retirement policy will not be enforced
is not a defense to a violation of the ADEA. The mere existence of an unlawful
mandatory retirement policy may be a violation of the ADEA's prohibition against
mandatory retirement. Thus, a district court retained jurisdiction to declare a retirement
policy in violation of the ADEA, because the court had no reasonable assurance that the
policy would never again be enforced. The employer could easily have stated by
affidavit or otherwise that it would not enforce the policy in the future, but chose not to.
24
Footnotes
Footnote 24. EEOC v Elrod (1986, ND Ill) 47 BNA FEP Cas 1651.
VIII. DISCHARGE, DISCIPLINE AND OTHER PRACTICES

[1055-1112]
A. Discharge and Discipline [1055-1104]
Research References
29 USCS 623; 42 USCS 1981, 2000e-2, 12112
41 CFR Part 60-50
12 Federal Procedural Forms, L Ed, Job Discrimination 45:115, 45:117, 45:284,
45:286, 45:318
5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form 118
7 Am Jur POF2d 87, Forced Resignation
Employment Coordinator EP-22,67722,679, 80,000 et seq.
1. In General [1055-1072]
a. Overview of Statutory Prohibitions [1055, 1056]
1055 Statutory prohibitions against discriminatory discipline

View Entire Section
Go to Supplement
Employee discipline is regulated by Title VII, the ADA, and the ADEA by virtue of their
"terms and conditions" and "employee status" protections. For example, Title VII, 25
the ADEA, 26
and the ADA 27 make it an unlawful employment practice for an
employer to discriminate against any individual with respect to terms or conditions of
employment or to adversely affect an individual's status as an employee because of the
prohibited types of discrimination.
Although the OFCCP says that Executive Order 11246 relates to both termination and
demotion, 28 discipline cases rarely arise under the Executive Order or the laws
prohibiting discrimination on federal projects. 29
1991, 31 is intended to cover demotion. 32

include all forms of discipline.
interpretation of 1981 in Patterson. 34 That ruling was construed to bar recovery
under 1981 for discriminatory demotions and other forms of discipline, 35 except
where demotions resulted in new and distinct relations with employers 36 or where
employees were prevented from enforcing their contractual rights to contest discipline
through internal grievance 37 or external administrative 38 procedures.
State aspects: Almost all states have enacted some type of job discrimination law
that includes an explicit prohibition against discriminatorily discharging an employee.
39
State aspects: A number of state courts have determined whether, or under what
conditions, discharging an employee for sexual conduct violates state fair employment
laws. 40
1055 ----Statutory prohibitions against discriminatory discipline
[SUPPLEMENT]
Case authorities:
Former deputy county elections commissioner states no valid 1983 claim against
commissioner who dismissed her on basis of their political differences, where state
elections law permits commissioners of local boards of elections to appoint, to prescribe
duties of, and at pleasure to remove deputies, because post of deputy is politically
sensitive so that dismissal from that post on basis of political differences, including
disagreements about internal political party matters, does not offend Constitution. Hering
v Hill (1993, SD NY) 814 F Supp 356.
Respondent's placement of petitioner on permanent leave without pay amounted to a
suspension under the State Personnel Act, and the case is remanded for a determination
of whether such suspension was made for just cause. GS 126-35. White v North
Carolina Dep't of Correction (1995) 117 NC App 521, 451 SE2d 876, motion gr 117 NC
App 138.
42 USCS 12112(a) does not create civil right to promotion merely by virtue of person's
disability; thus, insurance company does not fail, in violation of ADA, to reasonably
accommodate sales agent with lumbo-sacral sprainwhich allegedly prevented agent
from carrying 25-pound computer which he used in his presentations to customers, and
thus allegedly caused agent's failure to meet sales quotas and led to termination of his
employmentby failing to promote agent to position which would not require him to sell
insurance, although agent may have right to accommodation so that he may compete for
promotion on same footing as his colleagues who do not have disabilities. Lillback v
Metropolitan Life Ins. Co. (1994, Ohio App, Montgomery Co) 4 ADD 878.
Footnotes
Footnote 25. 42 USCS 2000e-2(a)(1), (2).
Annotation: Garnishment discharge policy of employer as unlawful employment
practice violative of Title VII of Civil Rights Act of 1964 (42 USCS 2000e et seq.),
26 ALR Fed 394.
Footnote 26. 29 USCS 623(a)(1), (2).
Forms: Allegations in complaintDischarge because of ageReplacement with
younger employee [28 USCS 1332(a); 29 USCS 626(b)]. 12 Federal Procedural
Footnote 28. 41 CFR 60-50.2(a).
Footnote 29. As to the laws prohibiting discrimination on federal projects, see 21 et
seq.
Footnote 31. P.L. 102-166 101(2).
Footnote 34. 1056.
Footnote 35. Second CircuitDuse v International Business Machines Corp. (1990, DC
Conn) 748 F Supp 956.
Third CircuitScott v Bristol (1990, ED Pa) 1990 US Dist LEXIS 15313.
Fourth CircuitNewton v A.B. Dick Co. (1990, DC MD) 738 F Supp 952, 53 BNA FEP
Cas 30; Frazier v First Union Nat. Bank (1990, WD NC) 747 F Supp 1540, 56 CCH EPD
40828.
258, 54 BNA FEP Cas 1185.
Sixth CircuitCopperidge v Terminal Freight Handling Co. (1989, WD Tenn) 50 BNA
FEP Cas 812.
Seventh CircuitBush v Commonwealth Edison Co. (1990, ND Ill) 732 F Supp 895, 53
CCH EPD 40033.
Tenth CircuitJordan v U.S. West Direct Co. (1989, DC Colo) 716 F Supp 1366, 50
Eleventh CircuitAl-Hashimi v Scott (1991, SD Ga) 756 F Supp 1567.
Footnote 36. Kriegel v Home Ins. Co. (1990, ND Ga) 53 BNA FEP Cas 625.
Footnote 37. Barefield v Scanlon (1990, DC Mass) 1990 US Dist LEXIS 6166.
Footnote 38. Scott v Bristol (1990, ED Pa) 1990 US Dist LEXIS 15313.
Footnote 39. Provisions of state fair employment practice (FEP) statutes, separate age
discrimination statutes, or handicap laws that explicitly and expressly prohibit a
discriminatory discharge are noted in the Employment Coordinator EP 22,677 - 22,679.
For a more extensive discussion of discharge provisions in all state job discrimination
laws, including those that only regulate public employers, as well as regulatory and
judicial interpretations of those laws, see the Employment Discrimination Coordinator
80,000 et seq.
Forms: Allegations in complaintRacial discrimination by employerTermination of
employmentPretextual reasons givenDisparate treatment [42 USCS 2000e et
seq.]. 12 Federal Procedural Forms, L Ed, Job Discrimination 45:117.
Footnote 40.
Annotation: Discipline or discharge for sexual conduct as violative of state fair
employment laws, 47 ALR4th 863.
1056 Statutory prohibitions against discriminatory discharge

View Entire Section
Go to Supplement
Discriminatory discharge of employees is prohibited, with certain exceptions, 41
by:
the Americans with Disabilities Act (ADA), on its effective date, which varies for
employers depending on the size of the work force; 44
the Government Employee Rights Act of 1991; 45
the Civil Rights Act of 1991, which applies the rights and protections provided under
Title VII to employment by the House of Representatives 46 and the instrumentalities of
Congress; 47
the Civil Rights Act of 1866, 48 which, as amended by the Civil Rights Act of 1991,
49 is intended to cover discharge. 50
State aspects: Discriminatory discharge is prohibited by almost all of the state fair
employment practice (FEP) laws and several state age and handicap discrimination
statutes. 51
Discharge cases rarely arise under Executive Order 11246 or the laws prohibiting
discrimination on federal projects. 52
The Supreme Court had held that 1981 only applies to the formation of employment
contracts, and not to any post formation conduct by an employer, including
discriminatory discharge. 53
The Civil Rights Act of 1991's amendment of 1981 supersedes 54 Patterson.
Patterson was construed to bar relief under 1981 for discriminatory discharge. 55
Thus, 1981 was held to apply to discharged employees only when they claimed to have
been rejected for reemployment under new contracts after the expiration of employment
contracts, 56 and not when they were rejected for reemployment in the same positions
from which they had been discharged. 57
Discriminatory discharge is also prohibited by the Rehabilitation Act. Under 504 of the
Rehabilitation Act, however, an employer is not relying on a handicap as justification for
termination when it can point to behavior that is not causally related to the handicap,
showing that the employee is not qualified for the position. On the other hand,
termination because of behavior that is attributable to a handicap is the equivalent of
termination solely by reason of a handicap. 58
1056 ----Statutory prohibitions against discriminatory discharge
[SUPPLEMENT]
Case authorities:
For purposes of 29 USCS 626(f)(1)(F) and (H), sixty three employees terminated at
one time, as part of reduction in force, constitutes group employment termination
program. Oberg v Allied Van Lines (1993, CA7 Ill) 63 BNA FEP Cas 470, 63 CCH EPD
42692 (criticized by Wamsley v Champlin Refining & Chems. (CA5 Tex) 63 BNA FEP
Cas 821) and reh, en banc, den (CA7 Ill) 1994 US App LEXIS 382.
Laid off black manufacturing supervisor's 1981 claims must be dismissed, even though
clause in answer indicates that layoff was effective December 31, 1991, where evidence
demonstrates that he was actually terminated on November 20, 1991, because 1981 did
not apply to discriminatory and retaliatory discharge claims prior to effective date of
1991 amendments (i.e., November 21, 1991). Sample v Schuller Int'l (1993, SD Ga) 836
F Supp 876.
California statutes forbidding age discrimination, among other indicia of public policy,
stated policy against intentional age discrimination in employment sufficient to support
nonstatutory claim for wrongful discharge in violation of public policy, and discharged
employee was thus not limited to statutory remedy in action arising from discharge of
savings-and-loan investment officer. Brooks v Bell Savings & Loan Assn. (1994, 3rd
Dist) 29 Cal App 4th 565, 34 Cal Rptr 2d 785, 59 Cal Comp Cas 668, 94 CDOS 8058, 94
Daily Journal DAR 14914, 66 BNA FEP Cas 746, op withdrawn by order of court (Cal)
95 Daily Journal DAR 2395.
Footnotes
Annotation: Termination of agency or employment relationship as depriving person of
civil rights in violation of 42 USCS 1985(3), 107 ALR Fed 686.
Annotation: Proving that discharge was because of age, for purposes of Age
Discrimination in Employment Act (29 USCS 621 et seq.), 70 ALR Fed 110.
As to the effective date of the ADA, see 40 et seq.
Footnote 45. P.L. 102-166 319(a).
Footnote 46. P.L. 102-166 117(a).
Footnote 47. P.L. 102-166 117(b).
Footnote 49. P.L. 102-166 101(2).
Footnote 51. Employment Coordinator EP-22,676]-22,679].
Footnote 52. As to the laws prohibiting discrimination on federal projects, see 21 et
seq.
Footnote 53. Patterson v McLean Credit Union (1989, US) 491 US 164, 105 L Ed 2d
Footnote 55. First CircuitButler v RMS Technologies, Inc. (1990, DC Mass) 741 F
Second CircuitGonzalez v Home Ins. Co. (1990, CA2) 909 F2d 716, 53 BNA FEP Cas
862, 54 CCH EPD 40128.
Third CircuitHayes v Community General Osteopathic Hosp. (1991, CA3) 940 F2d 54,
Fourth CircuitWilliams v First Union Nat. Bank (190, CA4) 920 F2d 232, 55 BNA
Fifth CircuitLavender v V & B Transmissions & Auto Repair (1990, CA5) 897 F2d
Sixth CircuitPrather v Dayton Power & Light Co. (1990, CA6) 918 F2d 1255, 54 BNA
Seventh CircuitMcKnight v General Motors Corp. (1990, CA7) 908 F2d 104, 53 BNA
FEP Cas 505, 53 CCH EPD 40147, cert den (1991, US) 55 BNA FEP Cas 352, 55 CCH
EPD 40603.
Eighth CircuitTaggart v Jefferson County Child Support Enforcement Unit (1991,
Ninth CircuitCourtney v Canyon Television & Appliance Rental, Inc. (1990, CA9) 899
F2d 845, 52 BNA FEP Cas 779, 5 BNA IER Cas 431, 53 CCH EPD 39760, 114 CCH
LC 56197.
Tenth CircuitTrujillo v Grand Junction Regional Center (1991, CA10) 928 F2d 973.
Eleventh CircuitWeaver v Casa Gallardo, Inc. (1991, CA11) 922 F2d 1515, 55 BNA
DC CircuitBrereton v Communications Satellite Corp. (1990, DC Dist Col) 735 F Supp
1085, app dismd without op (App DC) 925 F2d 488.
Footnote 56. Second CircuitToliver v Sullivan Diagnostic Treatment Center (1990, SD
NY) 748 F Supp 223; Williams v Avco Lycoming (1991, DC Conn) 775 F Supp 47.
Eighth CircuitJones v Pepsi-Cola General Bottlers, Inc. (1989, WD Mo) 1989 US Dist
LEXIS 16220.
DC CircuitRussell v District of Columbia (1990, DC Dist Col) 747 F Supp 72.
Footnote 57. Second CircuitBudd v City University of New York Baruch College
(1990, SD NY) 749 F Supp 86.
Third CircuitEklof v Bramlea Ltd. (1989 ED Pa) 733 F Supp 935; Smith v Continental
Ins, Corp. (1990, DC NJ) 747 F Supp 275.
Fourth CircuitHolland v First Virginia Banks, Inc. (1991, CA4) 56 CCH EPD 40864.
Fifth CircuitZeiour v Chevron U.S.A., Inc. (1989, ED La) 1989 US Dist LEXIS 13656.
Seventh CircuitCarter v O'Hare Hotel Investors (1989, ND Ill) 736 F Supp 158.
Cas 1138, 57 CCH EPD 41193, petition for certiorari filed (Mar 26, 1992).
b. Disciplinary Standards and Procedures [1057-1060]
1057 Applying a "good cause" standard in discrimination cases

View Entire Section
Title VII does not expressly incorporate "cause" language. However, courts applying that
statute have recognized a form of good cause defense to discharge claims characterized
as "legitimate nondiscriminatory explanations" 59 that do not require defendants to
establish valid reasons for discharge, but do require them at least to respond to any proof
of a discriminatory motivation raised by the plaintiff.
Furthermore, the ADEA expressly states that it is not unlawful to discharge or otherwise
discipline an individual for good cause. 60 Unlike the ADEA's BFOQ exception, 61
which is essentially an affirmative defense, the "good cause" exception is not
burden-shifting, but rather is a denial of the plaintiff's prima facie case. Thus, the
defendant has only the burden of going forward with evidence to demonstrate "good
cause" for the plaintiff's discharge. 62
Observation: While a determination of whether an employer has good cause for

disciplining or discharging an employee often arises as part of the employer's defense,
such questions also necessarily occur when an employee is presenting a prima facie
case of discriminatory discharge, especially when the element of satisfactory
performance is at issue. 63
Footnotes
Footnote 59. Texas Dept. of Community Affairs v Burdine (1981, US) 450 US 248, 67

Footnote 62. Marshall v Westinghouse Electric Corp. (1978, CA5) 576 F2d 588, 17 BNA
Footnote 63. 1075.
1058 Existence of formal disciplinary procedures

View Entire Section
Go to Supplement
While federal law does not mandate the use of formal disciplinary procedures by private
employers, the establishment of some preexisting standards of conduct often is useful in
defense of allegations of discrimination. These procedures can, for example, measure
productivity to establish poor work performance, 64 or detail sanctions for violations of
work rules, including progressive discipline. 65 In other words, while the existence of
formal disciplinary procedures are not aspects of the formal proof burdens in job
discrimination cases, often they are key facts that help establish whether an inference of
discrimination has been raised, addressed, rebutted, or established. 66
When a professional or managerial employee presents a discriminatory discharge claim
entailing necessarily complex and subjective standards in decisionmaking, the courts tend
to favor employers that have established sufficient procedural safeguards to minimize
general unfairness and maximize the uniformity of the termination process. 67 However,
when generally understood and easily quantifiable reasons are involved in a
discriminatory discharge claim, the mere presence or absence of progressive disciplinary
procedures or procedural safeguards is less determinative. In any case, an employer's
compliance with established disciplinary procedures eliminates one potential inference of
disparate treatment, 68 while noncompliance can contribute to creating such an
inference. 69 Warnings to an employee that prohibited behavior could lead to
termination also can dispel a discriminatory inference regarding a subsequent discharge.
70
Even unwritten subjective termination guidelines can constitute a legitimate
nondiscriminatory rationale for discharge if they are clear, specific, and capable of
objective evaluation by a fact-finder after the discharge has taken place. Furthermore,
while an employer's failure to inform employees of such guidelines prior to discharge
may be bad management, it does not necessarily demonstrate discriminatory intent.
Thus, an employer successfully defended its decision to terminate a woman bus driver for
unreasonably endangering passengers and property when she made an illegal left-hand
turn, although it did not write down the subjectively applied safety guidelines supporting
the discharge, nor warn employees about them prior to discharge. The plaintiff failed to
demonstrate pretext either by showing that the standard had been interpreted in an
unusual or illogical manner, or by showing that it had been discriminatorily applied on an

illegal basis. 71
1058 ----Existence of formal disciplinary procedures [SUPPLEMENT]
Case authorities:
Former medical director of county hospital failed to state 42 USCS 1983 procedural
due process claim alleging she was terminated without hearing and statement of reasons,
where medical director resigned before being discharged, depriving employer of
opportunity to comply with procedural obligations. Finley v Giacobbe (1996, CA2 NY)
79 F3d 1285.
Discharged transit authority worker may proceed with 1983 procedural due process
claim against authority, even though she was aware of stated reason for her termination,
because she also had right to at least informal pretermination hearing to present her story
regarding bus driver assault incident and reasons why she should not be discharged.
Bedford v Southeastern Pa. Transp. Auth. (1994, ED Pa) 867 F Supp 288.
Footnotes
Footnote 64. 1062.
Footnote 65. 1063.
Footnote 66. 1073-1087.
Footnote 67. Davis v Weidner (1979, CA7) 596 F2d 726, 19 BNA FEP Cas 668, 19 CCH
EPD 9118.
Footnote 68. Aquamina v Eastern Airlines, Inc. (1981, CA5) 644 F2d 506, 27 BNA FEP
Cas 652, 26 CCH EPD 31833.
Footnote 69. Taylor v Safeway Stores, Inc. (1973, DC Colo) 365 F Supp 468, 6 BNA
FEP Cas 556, 6 CCH EPD 8928 affd in part and revd in part on other grounds (CA10)
Footnote 70. Francis v Allied Service Co. (1973, CA5) 486 F2d 597, 6 BNA FEP Cas
1148, 6 CCH EPD 8894.
Footnote 71. Conner v Ft. Gordon Bus Co. (1985, CA11) 761 F2d 1495, 37 BNA FEP
Cas 1574, 37 CCH EPD 35272.
Annotation: Consideration of work performance or production records as pretext for
unlawful employment practice violative of Title VII of Civil Rights Act of 1964 (42
USCS 2000e et seq.), 32 ALR Fed 7.
Forms: Allegations in complaintPretextual reasons given for discharge [29 USCS
621 et seq.]. 12 Federal Procedural Forms, L Ed, Job Discrimination 45:286.
1059 Application of formal work standards and disciplinary procedures

View Entire Section
Merely having a formal disciplinary or discharge standard or procedure will not insulate
an employer from potential inferences of discrimination if the procedures or standards
themselves are inherently discriminatory with respect to a particular group, as in the case
of enforcing specific types of job requirements, 72 or when standards and procedures
are neutral on their face, but are applied inconsistently toward specific individuals in a
protected class. For example, where the alleged basis for discipline or discharge is
substandard performance, the plaintiff's case may be strengthened by evidence of an
unreasonable or irregular application of discipline or discharge procedures, such as the
failure to issue customary written warnings for unsatisfactory work performance 73 or
the failure to give customary training necessary for satisfactory performance. 74
Observation: Proof of unequal administration of written warnings for unsatisfactory

work performance may also be used to establish a prima facie case of discharge
Discriminatory intent was successfully demonstrated because disciplinary procedures
were not applied reasonably or uniformly where:
a plaintiff was never warned that his production was substandard, and he never received
objective guidelines as to what constituted standard production; 76
a black female attorney, unlike her white coworkers, did not receive criticism for her
unsatisfactory work or counselling on how to improve; 77
an employer used a subjective standard in evaluating the employee's proficiency, rather
than the objective standard applied to others; 78
a plaintiff's supervisor intentionally added documentation to her personnel file whenever
she made a mistake to "build" a file for her eventual termination. Certain performance
deficiencies were not solely the plaintiff's fault, but she was the only dispatcher involved
who received written reprimands. 79
Noncompliance with a disciplinary procedure that is clearly not applicable to the
circumstances under which the plaintiff employee was discharged raises no inference of
disparate treatment or discriminatory motivation. 80 For example, an employer
successfully defended its decision to terminate a female employee after she had received
her fourth reprimand under the employer's progressive discipline program, which only
permitted employees four reprimands before dismissal. Not discharging a male employee
involved in the same incident was reasonable because he had fewer than three reprimands
prior to the incident. Also, the reprimands he received after the incident were for less
serious infractions than those involving the terminated employee. 81
Footnotes
Footnote 73. Johnson v Yellow Freight System, Inc. (1984, CA8) 734 F2d 1304, 34 BNA
BNA FEP Cas 1727.
Footnote 74. Rosemond v Cooper Industrial Products, Div. of Cooper Tire & Rubber Co.
(1985, ND Ind) 612 F Supp 1105.
Footnote 75. 1073-1077.
Footnote 76. Bolton v Murray Envelope Corp. (1974, CA5) 493 F2d 191, 7 BNA FEP
Cas 1164, 7 CCH EPD 9289.
Footnote 77. Vaughn v Edel (1990, CA5) 918 F2d 517, 54 BNA FEP Cas 870, 55 CCH
EPD 40455.
Footnote 78. Griffin v Omaha (1986, CA8) 785 F2d 620, 40 BNA FEP Cas 385, 39 CCH
EPD 35928.
Footnote 79. Few v Yellow Freight System, Inc. (1988, CA6) 845 F2d 123, 46 CCH EPD
37943.
Footnote 80. Sutton v Addressograph-Multigraph Corp. (1979, ED Mo) 481 F Supp
1148, 26 BNA FEP Cas 845, app dismd (CA8) 627 F2d 115, 28 BNA FEP Cas 439, 23
CCH EPD 31059.
Footnote 81. Pizzuto v Perdue, Inc. (1985, DC Del) 623 F Supp 1167, 39 BNA FEP Cas
1250.
1060 Effect of a good cause finding in another forum

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While prior state agency and arbitration decisions that a discharge was justified do not
preclude a plaintiff from bringing a Title VII discrimination claim, an employer may use
the decisions as persuasive evidence that the employee was terminated for
nondiscriminatory reasons. For instance, in one case an arbitrator previously had
determined both that an employee's termination had been based on good cause and that
the employee had had an opportunity to present evidence and argument and had been
represented by an effective union official. Although this evidence was not binding on the
court hearing the employee's discrimination claim, it was sufficient to rebut a prima facie
case. 82
Similarly, an employer's performance rationale for discharging an employee
was supported by the fact that the state's FEP and unemployment compensation agencies
had rejected the employee's claims and his union had refused to arbitrate his discharge.
83
However, the utility to an employer of good cause discharge findings in another forum is
limited to how closely the issues raised in the other forum parallel the issues being
contested in the discrimination proceedings. For example, an employer could not defend
its refusal to reinstate a discharged black employee during the course of a union
grievance proceeding by arguing that the initial discharge had been upheld under the
union contract as nondiscriminatory. The failure to reinstate was an issue distinct from
the termination, and the employer's compliance with the union contract was not
conclusive proof of its nondiscriminatory intent. 84 Furthermore, when an employer's
nondiscriminatory explanation for a plaintiff's discharge included, among other reasons,
inadequate performance, her allegation that the employer had told the state
unemployment bureau that she had been terminated for "lack of work," and the facts that
she had received regular wage increases and had never been warned about her
performance, were sufficient to defeat the employer's motion for summary judgment. 85
Footnotes
Footnote 82. Becton v Detroit Terminal of Consolidated Freightways (1982, CA6) 687
Footnote 83. Jenkins v Trans World Airlines, Inc (1986, ED NY) 636 F Supp 30, 40
BNA FEP Cas 1864.
Footnote 84. EEOC v Hall's Motor Transit Co. (1986, CA3) 789 F2d 1011, 40 BNA FEP
Cas 1441, 40 CCH EPD 36104.
Footnote 85. Duchon v Cajon Co. (1986, CA6) 791 F2d 43, 40 BNA FEP Cas 1432, 27
c. Reasons for Discipline and Discharge [1061-1072]
1061 Applying performance standards

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Employers frequently have defended discriminatory discharge or discipline claims by
indicating that the employee's performance was inadequate. 86
When an employee's performance is called into question in a discriminatory discharge
claim, issues are usually raised regarding the expectations and standards that the
employer has set for the employee, and how they have been implemented. Companion
inquiries can concern whether the expectations were reasonable, and whether they were
communicated to the employee. 87
Courts will defer to an employer's evaluation that an employee's work is inadequate
except where the employer's expectations of its employees were not uniformly applied,
were unreasonable, or were not communicated to the employee. Thus, where a
terminated employee was previously praised by a former publisher for going outside the
normal lines of communication with a client, and later criticized for the same action by
the new publisher, a sufficient factual issue was left open regarding whether the
employee was qualified. 88 However, inadequate performance was a legitimate reason
for selecting a plaintiff for discharge in a reduction in force, despite the plaintiff's claim
that his work had been evaluated more strictly than other similarly situated employees
because of his age. The plaintiff was a professional in a high-level position, and there
was no evidence to suggest that his employer could not reasonably expect more of him
than lower-level professional employees. Also, since the plaintiff had no right to
compete with the lower-level employees for the jobs remaining after the RIF, he was not
improperly denied one of those jobs because higher standards were applied to him. 89
Similarly, an employer justified a demotion where the qualifications needed in a position
had significantly changed during a reorganization, and the employee lacked the necessary
skills for the position after its focus had shifted. 90
If an employee requires accommodation under the ADA to perform marginal job
functions, and an employer had refused to provide a reasonable accommodation that did
not constitute an undue hardship, it may not discipline or terminate the employee for
unsatisfactory performance caused by the lack of accommodation. However, an
employer can hold employees with disabilities to the same standard of performance of
essential job functions, with or without accommodation, as other similarly-situated
employees without disabilities. 91
1061 ----Applying performance standards [SUPPLEMENT]
Case authorities:
Evidence supported finding that African-American worker was not discharged because of
his race where his employment file contained several warnings for unsatisfactory job
performance and two warnings for refusal to perform job assignments. Doss v Frontenac
(1994, CA8 Mo) 14 F3d 1313, 63 BNA FEP Cas 1274, 63 CCH EPD 42827.
There was no merit to petitioner's argument that the State Personnel Commission erred in
finding that he was not able to perform all his duties as a correctional officer where
correctional officers were required to rotate through all positions, and the physician who
examined petitioner concluded that he could not perform all the duties listed in the job
description for a correctional officer. White v North Carolina Dep't of Correction (1995)
117 NC App 521, 451 SE2d 876, motion gr 117 NC App 138.
Footnotes
Footnote 86. Second CircuitPowell v Syracuse University (1978, CA2) 580 F2d 1150,

Eighth CircuitGhalam v Tesson Ferry, Inc. (1983, ED Mo) 560 F Supp 631, 31 BNA
FEP Cas 1074, 115 BNA LRRM 5183.
Eleventh CircuitIodice v Southeastern Packing & Gaskets, Inc. (1983, ND Ga) 572 F
Footnote 87. Dale v Chicago Tribune Co. (1986, CA7) 797 F2d 458, 41 BNA FEP Cas
Footnote 88. Hybert v Hearst Corp. (1988, ND Ill) 1988 US Dist LEXIS 249.
Footnote 89. Fallis v Kerr-McGee Corp. (1991, CA10) 944 F2d 743, 56 BNA FEP Cas
1462, 57 CCH EPD 40936.
Footnote 90. Weihaupt v American Medical Assn. (1989, CA7) 874 F2d 419, 49 BNA
FEP Cas 1162, 50 CCH EPD 38995.
Employment Opportunity Commission, 1/28/92.
1062 How performance is measured

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The performance deficiencies on which an alleged discriminatory disciplinary action is
defended often involve the employee's inability to accomplish assigned work, and this
deficiency may be measured in several different ways. One way is for an employer to set
specific goals, which an employee has failed to meet, such as when a salesperson fails to
attain sales goals. 92 Another way is when an employer requires that specific tasks must
be mastered, or particular mistakes must be avoided. For instance, performance
deficiencies belied any claim of discrimination where:
an employee failed to learn a new job after more training than was normally provided;
93
a teacher was unable to communicate with his students, often misspelled words, used
poor grammar, and lacked basic discipline skills; 94
a discharged store employee had frequently opened the employer's store late. 95
Performance may also be measured by considering an employee's overall work quality
and quantity, such as when a hotel maid's work was deemed substandard after inspection,
96 or when an attorney was viewed as an ineffective advocate. 97
Employers may
also measure performance by considering whether an employee can meet established job
prerequisites. Thus, an Indian employee's claim of discrimination could not be proved
when he was properly discharged because he failed an equipment maintenance exam. 98
Finally, the inadequate performance of others has been used as a measure of a
supervisor's performance in successfully defending job discrimination claims. 99 For
example, a plant manager's discharge was justified under the ADEA based on many
factors, including the lack of communication between salaried and hourly employees
under his supervision; labor unrest; excessive drinking by supervisory and management
personnel under his supervision; lack of employee participation in plant safety meetings;
insubordination; nepotism and favoritism in plant employment decisions; and sexual
harassment allegations by plant employees. 1 However, it was racially discriminatory
for an employer to fire a supervisor who could not control the noise level of the
department and submitted untimely work, when the employee was not given the authority
to discipline those responsible for the noise, and the untimely work was the result of an
understaffed department. 2
Footnotes
Footnote 92. Piva v Xerox Corp. (1981, CA9) 654 F2d 591, 26 BNA FEP Cas 1267, 27
CCH EPD 32147.
Footnote 93. O'Neal v Riceland Foods (1982, CA8) 684 F2d 577, 29 BNA FEP Cas 956,
29 CCH EPD 32949.
Footnote 94. Barnes v Jones County School Dist. (1978, CA5) 575 F2d 490, 22 BNA
Footnote 95. Cummings v Retzer & Retzer, Inc. (1986, ND Miss) 646 F Supp 400, 42
BNA FEP Cas 735.
Footnote 96. Mannikko v Harrah's Reno, Inc. (1986, DC Nev) 630 F Supp 191.
Footnote 97. Cazalas v United States Dept. of Justice (1983, ED La) 569 F Supp 213, 36
BNA FEP Cas 1698, affd (CA5) 731 F2d 280, 36 BNA FEP Cas 1713, cert den 469 US
1207, 84 L Ed 2d 320, 105 S Ct 1169, 37 BNA FEP Cas 64.
Footnote 98. Mughal v Chart House, Inc. (1986, ND Ill) 40 BNA FEP Cas 626, 40 CCH
EPD 36226.
Footnote 99. Ogletree v Keebler Co. (1978, ND Ga) 78 FRD 661, 20 CCH EPD 30005.
Footnote 1. Stevenson v Potlatch Corp. (1987, DC Idaho) 674 F Supp 1410, 45 BNA FEP
Footnote 2. Brown v Eckerd Drugs, Inc. (1981, CA4) 663 F2d 1268, 27 BNA FEP Cas
137, 27 CCH EPD 32200 vacated and remanded without op 457 US 1128, 73 L Ed 2d
1345, 102 S Ct 2952, 28 BNA FEP Cas 1840, 29 CCH EPD 32822, reaffirmed on
remand (WD NC) 564 F Supp 1440, 36 BNA FEP Cas 1543, 38 CCH EPD 35603.
Annotation: Consideration of work performance or production records as pretext for

unlawful employment practice violative of Title VII of Civil Rights Act of 1964 (42
USCS 2000e et seq.), 32 ALR Fed 7.
1063 Violation of work rules regulating on-the-job conduct

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When an employer's work rules have been violated by an employee, such violations are
often cited as the reason why a discharge or particular disciplinary action was taken.
Employers have successfully justified discipline or discharge of employees by citing their
violations of work rules prohibiting such on-the-job conduct as intoxication, 3 sleeping,
4 smoking, 5 conducting personal business on the job, 6 and fighting. 7
Even when a work rule has clearly been violated, however, an employer cannot use the
violation to dispel an inference that discrimination was involved in the discharge if the
sanction is inconsistently applied. In other words, when an employee is discharged for a
violation of work rules under circumstances in which employees of different races or
sexes have not been discharged, replacement of the terminated employee by a person of
the same race or sex does not prevent a finding of unlawful discrimination under Title
VII. 8 However, a female supervisor who engaged in an intimate affair with a
nonsupervisory employee violated the employer's rule prohibiting excessive socialization
between supervisory and bargaining unit employees and was justly terminated. She
failed to show that she had engaged in conduct comparable to that of male managers who
had not had sexual relations with nonsupervisory employees but had only engaged in
casual socialization. 9 Similarly, a black police officer who violated work rules by using
a city truck for personal reasons, after a new supervisor had informed him that the unit
would in the future operate by the rules, was not similarly situated to white police
officers who had previously used the truck under a different and permissive supervisor.
10
Even if a Title VII claimant did not commit the act for which he was disciplined, an
employer may rebut any prima facie case of disparate treatment by showing that it had a
good faith belief that the employee committed the violation. For example, a police
officer's admission of misconduct at a disciplinary hearing provided sufficient foundation
for the employer's good faith belief that the employee had engaged in misconduct. 11
Further, an employer could terminate an employee it believed had engaged in sexual
harassment. Although the employee's signing, without objection, of disciplinary
documents concerning the harassment was strong evidence that the harassment occurred,
proof of it by the employer was unnecessary. The employer only needed to prove that it
believed the truth of the sexual harassment allegations. 12
1063 ----Violation of work rules regulating on-the-job conduct [SUPPLEMENT]
Case authorities:
African-American independent contractor for package delivery company was not

terminated in violation of 42 USCS 1981, where company alleged that contractor used
his wife as assistant and that she drove their personal vehicle for deliveries in violation of
company rules, contractor failed to show that company knew of or authorized use of
personal vehicles by white contractors, and no evidence showed that unqualified white
assistants were allowed to keep working or were treated differently in any way. Bratton v
Roadway Package Sys. (1996, CA7 Ind) 77 F3d 168, 70 BNA FEP Cas 178, 67 CCH
EPD 43942.
Footnotes
Footnote 3. Hicks v Sears, Roebuck & Co. (1980, ED Pa) 503 F Supp 930, 24 BNA FEP
Cas 1207, 25 CCH EPD 31619.
Footnote 4. Brown v Frank Ix & Sons, Inc. (1982, WD Va) 530 F Supp 1230, 28 BNA
FEP Cas 682.
Footnote 5. Moore v Inmont Corp. (1985, WD NC) 608 F Supp 919, 39 BNA FEP Cas
1382, 38 CCH EPD 35699; Crockett v Eckerd Drugs of North Carolina, Inc. (1985,
WD NC) 615 F Supp 528.
Footnote 6. Lee v Albemarle County School Bd. (1986, WD Va) 648 F Supp 744, 42
BNA FEP Cas 778, affd without op (CA4) 829 F2d 1120, cert den (US) 101 L Ed 2d
937, 108 S Ct 2905.
Footnote 7. Forbus v Hayes International Corp. (1985, ND Ala) 37 BNA FEP Cas 245,
36 CCH EPD 35069.
Footnote 8. EEOC v Minneapolis Electric Steel Casting Co. (1982, DC Minn) 552 F
Supp 957.
Footnote 9. Acred v Motor Convoy, Inc. (1988, WD Tenn) 49 BNA FEP Cas 420, 48
CCH EPD 38416, affd without op (CA6) 877 F2d 62, 50 BNA FEP Cas 680
Footnote 10. Jones v Gerwens (1989, CA11) 874 F2d 1534, 50 BNA FEP Cas 163, 50
CCH EPD 39089.
Footnote 11. Jones v Gerwens (1989, CA11) 874 F2d 1534, 50 BNA FEP Cas 163, 50
CCH EPD 39089.
Footnote 12. Elrod v Sears, Roebuck & Co. (1991, CA11) 939 F2d 1466, 56 BNA FEP
Cas 1246, 57 CCH EPD 40944.
1064 Insubordination
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Insubordination has successfully been asserted as an employer's legitimate
nondiscriminatory reason for disciplining its employees. An employee's failure to follow
a supervisor's instructions has customarily justified an employer's meting out discipline
up to and including discharge. 13 Discipline, including termination, may be proper both
for outright refusals to follow an employer's required procedures, 14 as well as
insubordination other than disobeying a direct order. 15 For example, an employee was
lawfully terminated under the ADEA where she had refused to operate through
established channels and had frequently bypassed her supervisor rather than report to him
directly. 16 Similarly, a female attorney's termination was justified where she had had
disagreements with her supervisor concerning her manner of dress, her working hours,
and her behavior with clients. 17 Certainly, where the individual who orders the
sanction does not know who is responsible for insubordinate behavior, no discrimination
would likely be found. For instance, termination was proper where a female employee
had revised a supervisor's memo that contained stylistic and grammatical deficiencies and
anonymously forwarded the memo to the supervisor, and he had determined that whoever
did it would be fired, without knowing the gender of the revisor. 18
However, insubordination may not be viewed as a legitimate nondiscriminatory reason
for discharge where the employer has applied the sanction inconsistently to members of
different protected groups, 19 or where the sanction was otherwise shown to be
unlawfully motivated. 20
An employer's legitimate and reasonable belief that an employee is able to perform a task
constitutes a legitimate non-discriminatory reason for imposing disciplinary action if he
refuses to perform it. For example, because a police officer's supervisors believed that he
was able to perform Spanish language translation based on his past performance in
translating, rather than his Hispanic ethnicity, his refusal of an order based on an alleged
inability to translate was a legitimate basis for his suspension, whether or not he was in
fact able to translate. 21
1064 ----Insubordination [SUPPLEMENT]
Case authorities:
Child care worker's due process rights were not violated by county when worker's
supervisor instructed her to shuttle between secure and non-secure units of shelter care
housing for juveniles, thereby allegedly exposing her to unsafe working conditions, and
dismissed her for insubordination when she disobeyed, since due process clause does not
create entitlement to low-risk employment. Reilly v Waukesha County (1993, CA7 Wis)
993 F2d 1284.
Discharged firefighters' protected liberty interests were not implicated by fire chief's
general allegations of misconduct and insubordination since his accusations did not rise
to level of requisite stigma which would seriously damage their standing and associations
in their community or foreclose their freedom to take advantage of other employment
opportunities. Shands v Kennett (1993, CA8 Mo) 993 F2d 1337, reh, en banc, den (CA8)
Discharged legislative auditor has no valid 1983 claim against county, where his firing
was due in part to premature release of audit to editorial board of newspaper, because
auditor's superiors were entitled to assurance that they would not be faced with sudden
surprises, and his insistence on getting head start with news media was rightfully treated
as insubordinate, confrontational, and not entitled to First Amendment protection.
Barnard v Jackson County (1993, WD Mo) 832 F Supp 1338, 8 BNA IER Cas 1543.
Discharged employee's 42 USCS 1983 action alleging that his termination violated his
First Amendment rights would fail, where employee's grievances involved only matters
of internal departmental affairs and personal interest, and even if speech were protected,
employee failed to establish causal connection between his speech and his subsequent
dismissal. Hom v Squires (1996, CA10 Utah) 81 F3d 969.
Footnotes
Footnote 13. Soria v Ozinga Bros., Inc. (1983, CA7) 704 F2d 990, 31 BNA FEP Cas 720,
31 CCH EPD 33517; Person v J. S. Alberici Constr. Co. (1981, CA8) 640 F2d 916, 25
BNA FEP Cas 399, 25 CCH EPD 31580; Johnson v Bunny Bread Co. (1981, CA8) 646
Footnote 14. Wilkins v The Eaton Corporation (CA6) No. 84-3931, 5/13/86.
Footnote 15. Patkus v Sangamon-Cass Consortium (1985, CA7) 769 F2d 1251, 38 BNA
FEP Cas 1272, 120 BNA LRRM 2206, 27 BNA WH Cas 499, 37 CCH EPD 35453.
Footnote 16. Darrell v BBDO Chicago, Inc. (ND Ill) No. 85-C-1981, 1/20/87.
Footnote 17. Bellissimo v Westinghouse Electric Corp. (1985, CA3) 764 F2d 175, 37
Footnote 18. Macpherson v Texas Dept. of Water Resources (1984, CA5) 734 F2d 1103,
Footnote 19. Slack v Havens (1973, SD Cal) 7 BNA FEP Cas 885, 8 CCH EPD 9491, 8
CCH EPD 9492, affd in part, remanded in part on other grounds (CA9) 522 F2d 1091,
Footnote 20. Geer v General Motors Corp. (1984, ND Ga) 588 F Supp 1067, 45 BNA
FEP Cas 4.
Footnote 21. Buelna v Chandler (1991, CA9) 1991 US App LEXIS 13240.
1065 Personality and attitude problems

View Entire Section

Employees may be nondiscriminatorily evaluated based on their overall personality, as
well as their ability to get along with others. Employers may validly gauge employees
based on their patience, pleasantness, and self-control, provided these factors are not
applied discriminatorily. 22 For instance, employees have been found to be lawfully
discharged, despite a discrimination claim, because of a personality clash 23 or an
altercation with a supervisor. 24
A lack of a positive attitude or an incompatibility with an employer's "image," if it
interferes with job needs, may be grounds for discipline. This may be demonstrated by an
employee's resistance to an employer's restructuring program and his expressed
dissatisfaction at having to report to a particular person as a consequence of the
restructuring. 25 Also, when a job entails responsibility for representing the employer in
public, employees have been lawfully terminated despite allegations of discrimination
where:
a radio announcer did not display the "personality" required by the employer's changing
image. 26
a management trainee lacked interest in and the personality for a position that involved
meeting the general public. 27
an employee refused to comply with her supervisor's dress instructions, even though
there was no dress code. 28
However, an employer that claimed that the discharge of an ADEA claimant was because
she was insufficiently aggressive, and not positive-thinking or interactive, did not
demonstrate a legitimate reason, since these justifications were first offered during
litigation and lacked credibility in light of the evidence of the complainant's
qualifications. 29
Footnotes
Footnote 22. Mateen v Connecticut Transit (1982, DC Conn) 550 F Supp 52, affd without
op (CA2) 729 F2d 1443; Jones v General Electric Co. (1982, MD NC) 28 BNA FEP Cas
31 CCH EPD 33478.
Footnote 23. Walston v School Bd. (1977, CA4) 566 F2d 1201, 16 BNA FEP Cas 728,
15 CCH EPD 7950; Brooks v Carnation Pet Food Co. (1985, WD Mo) 38 BNA FEP
Cas 1663.
Footnote 24. Wall v National R. Passenger Corp. (1983, CA9) 718 F2d 906, 33 BNA
Footnote 26. Goodman v Washington Radio, Inc. (1982, DC Dist Col) 29 BNA FEP Cas
1843, 31 CCH EPD 33375.
Footnote 27. Bell v Fremar Corp. (1984, DC Dist Col) 36 BNA FEP Cas 547.
Footnote 28. Andre v Bendix Corp. (1986, ND Ind) 42 BNA FEP Cas 483, motion den
(ND Ind) 42 BNA FEP Cas 1895, 43 CCH EPD 37190, affd (CA7) 841 F2d 172, 46
Footnote 29. Gelof v Papineau (DC Del) No. 83-210-CMW, 11/26/86, aff'd in part and
vacated and remanded in part on other grounds (1987, CA3) 829 F2d 452.
1066 Fighting
View Entire Section
Whether or not fighting on the job is specifically prohibited by an employer's work rule,
30 it has been held to be a legitimate nondiscriminatory reason for discipline or
discharge. 31 Furthermore, the level of punishment for fighting on the job may lawfully
vary based on the severity of the conduct. Thus, an employer did not violate Title VII
when it suspended a white employee and fired a black employee for fighting, when the
evidence demonstrated that the black employee was the aggressor and was armed with a
dangerous tool, while the white employee was unarmed. 32
An employer also prevailed on a national origin and race discrimination claim by a
Vietnamese employee who was terminated for fighting, despite the fact that he
established a prima facie case of unlawful retaliation, and the fact that he had been
attacked from behind and beaten without provocation, when a non-Vietnamese employee
involved in the altercation was also terminated, and no other evidence of race or national
origin discrimination regarding the firing had been presented. 33
Even if an employee discharged for fighting was not the aggressor, if the employer
believed that he instigated the altercation, no discriminatory intent is demonstrated.
From the employer's perspective, the terminated employee is not similarly situated with
the undischarged participant or guilty of similar misconduct. 34
Observation: Fighting that is inspired by supervisory or coworker harassment may

not serve as a legitimate or nondiscriminatory reason for a discharge if, prior to the
incident, an employer was or should have been aware of such harassment and failed to
take adequate remedial action to cease such conduct. 35
Footnotes
Footnote 30. 1063.
Footnote 31. Centenio v Helena Garment Co. (1979, ED Ark) 475 F Supp 25, 21 BNA
Footnote 32. Green v Armstrong Rubber Co. (1980, CA5) 612 F2d 967, 22 BNA FEP
Footnote 33. Chap Van Ta v General Dynamics-Convair (1991, CA9) 1991 US App
LEXIS 14789 (unpublished).
Footnote 34. Morgan v Massachusetts General Hosp. (1989, DC Mass) 712 F Supp 242,
53 BNA FEP Cas 1647, 51 CCH EPD 39220, affd in part, vacated in part on other
EPD 39860.
Footnote 35. As to harassment generally, see 950 et seq.
1067 Poor attendance

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Go to Supplement
As long as there is no disparate treatment or impact, an employer does not violate Title
VII or the ADEA by punishing or terminating an employee who violates time and
attendance requirements. Employees may be lawfully terminated for chronic
absenteeism 36 tardiness, 37 misuse of excused absences, 38 or for simply not
following the employer's procedures for either obtaining permission for an absence 39 or
not returning from an excused absence. 40
A key element for determining whether an employer's discipline or discharge of an
employee for attendance problems is lawful is whether similarly situated employees who
are not in the plaintiff's statutorily protected group have been treated the same as the
plaintiff. This is often the focus of a job discrimination inquiry, regardless of whether the
employer is implementing a published policy, or simply utilizing a common-sense
standard. For instance, an employee's discharge was proper where earned and approved
absences were nevertheless excessive according to a uniformly applied standard. 41
Conversely, a woman employee's termination could not be proved discriminatory where
she had unexcused absences due to children's sickness and could not show that male
employees had been provided with more leniency. 42
Further, an ADEA plaintiff who
failed to provide the required medical records substantiating her absence, allegedly for
health reasons, was considered absent without excuse and, therefore, lawfully terminated
on that basis. 43
In contrast, an employer discriminated against a female employee when it terminated her,
but not a male colleague, who had taken extensive leaves of absence for medical reasons.
44 Similarly, an employer discriminated when it fired a black employee for a poor
attendance record and did not fire five whites with comparable attendance records. 45
An employee is entitled to be absent from work for a reasonable duration without

punishment, under Title VII, if the absence is due to a reasonable fear that the employee's
safety is threatened by unlawful harassment and the employee cooperates with the
employer to rectify the situation. 46
Whether absenteeism is caused by a handicap is a question of fact. Thus, under 504 of
the Rehabilitation Act, the termination of a recovering alcoholic on the ground of
excessive unexcused absences is a pretext for discrimination where the absences were
caused solely by reason of the substance abuse problem. However, if only a small
percentage of an employee's absences could be shown to have been caused by
alcoholism, but a greater number of absences were not so caused, this would indicate that
termination was not prompted solely by reason of handicap. 47
1067 ----Poor attendance [SUPPLEMENT]
Case authorities:
Employer that claimed that it fired plaintiff (black female), inter alia, due to her excessive
tardiness, was not entitled to summary judgment, where plaintiff submitted security logs
from building where employer was located and work schedules which indicated that two
of plaintiff's fellow employees (both white males) were habitually tardy for work (but
they were never reprimanded or fired). Bradley v Key Mkt. of New Orleans, Inc. (1993,
ED La) 62 BNA FEP Cas 288.
Footnotes
Footnote 36. Kenyatta v Bookey Packing Co., Div. of Swift & Co. (1981, CA8) 649 F2d
Footnote 37. Wright v Southwest Bank (1981, CA5) 648 F2d 266, 28 BNA FEP Cas
1040, 26 CCH EPD 31893; Brennan v Reynolds & Co. (1973, ND Ill) 367 F Supp 440.
Footnote 38. Clark v Marathon Oil Co. (1977, ED Mich) 17 BNA FEP Cas 610, 17 CCH
EPD 8355.
Footnote 39. Metcalf v Omaha Steel Castings Co. (1981, DC Neb) 507 F Supp 679, 25
BNA FEP Cas 16, 25 CCH EPD 31694, affd without op (CA8) 676 F2d 703, 28 BNA
FEP Cas 1818, 30 CCH EPD 33032.
Footnote 40. Hosemann v Technical Materials, Inc. (1982, DC RI) 554 F Supp 659, 37
BNA FEP Cas 498; Pearson v Borden Metal Products Co. (1977, ND Ala) 434 F Supp
840, 20 BNA FEP Cas 263.
Footnote 41. Gilchrist v Bolger (1984, CA11) 733 F2d 1551, 35 BNA FEP Cas 81, 34
CCH EPD 34463.
Footnote 42. Cox v American Cast Iron Pipe Co. (1984, ND Ala) 585 F Supp 1143, 36
34609, revd in part, vacated in part on other grounds (CA11) 784 F2d 1546, 40 BNA FEP
Footnote 43. Rodriguez-Morales v Veterans Admin. (1991, CA1) 931 F2d 980, 55 BNA
FEP Cas 1306, 56 CCH EPD 40725.
Footnote 44. Taylor v Philips Industries, Inc. (1979, CA7) 593 F2d 783, 19 BNA FEP
Cas 177, 19 CCH EPD 8987.
Footnote 45. Muldrew v Anheuser-Busch, Inc. (1982, ED Mo) 554 F Supp 808, 34 BNA
FEP Cas 60, 34 BNA FEP Cas 62, affd (CA8) 728 F2d 989, 34 BNA FEP Cas 93, 33
CCH EPD 34187.
Footnote 46. De Grace v Rumsfeld (1980, CA1) 614 F2d 796, 21 BNA FEP Cas 1444, 22
CCH EPD 30621.
Cas 1138, 57 CCH EPD 41193, petition for certiorari filed (Mar 26, 1992).
1068 Illegal or dishonest conduct

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Employers have successfully defended claims of discrimination in discipline where the
action was based on employee conduct that was illegal or dishonest in nature. Employee
misconduct that justifies disciplinary action may involve matters that specifically harm
the employer or its customers. For instance, employers did not discriminate against
employees when they disciplined them for:
attempting to obtain a copy of a promotion examination prior to the test date, and
engaging in sexual harassment; 48
falsifying company time and attendance documents; 49
numerous inconsistencies between amounts tendered by customers and amounts
recorded by the employee. 50
Employers have also properly taken disciplinary action where an employee's conduct
warranted a response from some outside authority, such as the police or a government
agency. Such conduct has included:
participating in a disturbance on company property that required police intervention; 51
wrongfully receiving approximately 30 weeks of unemployment compensation benefits
while being gainfully employed by the employer. 52
Employers have obtained summary judgment in Title VII and ADEA discriminatory
discharge cases when they proved the plaintiffs would not have been hired or would have
been fired had the employers known that:
the employee had falsified company records; 53
the employee had falsified a job application in several particulars; 54
the employee had photocopied confidential management files and removed the copied
documents from the employer's premises. 55
However, in some discriminatory discharge cases an employee's dishonest conduct may
not be relevant. For instance, in the discharge of a long-term employee, the fact that the
employee fraudulently represented his qualifications on his resume, was irrelevant to the
lawfulness of his discharge for performance-related reasons. 56
Other examples of illegal or dishonest conduct by an employee that justified a discharge
despite allegations of discrimination include:
smoking marijuana at work on several occasions in violation of company rules; 57
falsifying patient information, in violation of a hospital's employee handbook. 58
Private employers also are not under the same constraints as would be the police and
courts when investigating and punishing alleged illegal activity. Thus, an employer may
fire a worker for exercising his Fifth Amendment right not to incriminate himself. 59
If an employer can show that its inconsistency of employee treatment is not based on a
discriminatory reason, it may avoid a finding of discrimination despite the inconsistency.
For example, a public employer's selective suspension and discharge of only the leaders
of an illegal strike by prison guards, most of whom were black, did not violate the
striking employees' rights due to their race. Had the employer not utilized selective
prosecution, the county jail would have been unguarded and thus unmanageable. 60
Footnotes
Footnote 48. Mughal v Chart House, Inc. (1986, ND Ill) 40 BNA FEP Cas 626, 40 CCH
EPD 36226.
Footnote 49. Gibbs v Michelin Tire Co. (CA4) No. 84-2126, 11/29/85.
Footnote 50. Williams v Southwestern Bell Tel. Co. (1983, CA5) 718 F2d 715, 33 BNA
Footnote 51. Garner v St. Louis S. R. Co. (1982, CA8) 676 F2d 1223, 28 BNA FEP Cas
1469, 28 CCH EPD 32681.
Footnote 52. Carr v Ford Motor Company (ND Ill) No. 84 C 396, 8/9/85.
Footnote 53. Summers v State Farm Mut. Auto. Ins. Co. (1988, CA10) 864 F2d 700, 48

Footnote 54. Churchman v Pinkerton's, Inc. (1991, DC Kan) 756 F Supp 515, 55 BNA
Footnote 55. O'Day v McDonnell Douglas Helicopter Co. (1992, DC Ariz) 784 F Supp
1466, 58 BNA FEP Cas 535.
Footnote 56. Smith v General Scanning, Inc. (1989, CA7) 876 F2d 1315, 50 BNA FEP
Cas 58, 50 CCH EPD 39107.
Footnote 57. Jones v Boeing Helicopter Co. (1991, ED Pa) 1991 US Dist LEXIS 5768.
Footnote 58. Wilson v Roanoke Memorial Hosp. (1991, CA4) 1991 US App LEXIS
12914.
Footnote 59. Johnston v Herschler (1982, CA10) 669 F2d 617.
Footnote 60. White v Elrod (1987, CA7) 816 F2d 1172, 43 CCH EPD 37047, cert den
(US) 98 L Ed 2d 246, 108 S Ct 286.
1069 Endangering health and safety

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Endangering the health and safety of coworkers or the public is a legitimate,
nondiscriminatory reason for disciplining an employee when all similarly situated
individuals are treated consistently. An employer had a legitimate nondiscriminatory
explanation for terminating:
a black security guard based on a psychiatric evaluation and recommendation that the
guard should no longer be permitted to carry a weapon; 61
an employee who exhibited aggressive conduct and possessed a loaded handgun on
company premises; 62
an employee who was sleeping on the job at a refinery dealing with ultra-hazardous
substances; 63
a mentally handicapped federal employee who had been convicted of molesting his
11-year-old niece, where his work at a hospital would bring him in regular contact with
children. 64
Under 501 and 503 of the Rehabilitation Act, to be qualified for a job, a handicapped
employee must be able to perform the essential requirements of the job without a
reasonable probability of substantial injury to himself or others. The risk determination
cannot be based merely on an employer's subjective evaluation, or except in cases of the
most apparent nature, merely on medical reports, but must weigh the employee's work
and medical histories. 65 For example, in determining risk, a court considered the expert
testimony of both an employer's and an employee's physicians, the handicapped
employee's actual performance on the job, and the tasks involved in performing the job.
66 Although blanket exclusions of certain handicapped persons are generally
unacceptable under 504 of the Rehabilitation Act, they may be upheld without regard to
individualized considerations if they are legitimately and directly related to reasonable
health and safety concerns and the ability to perform satisfactorily the essential tasks of
the job. Because there is at present no reliable test to determine whether
insulin-dependent diabetics pose no or very little reasonable probable risk of suffering a
hypoglycemic attack while on assignment, a blanket exclusion of all insulin-dependent
diabetics as FBI special agents or investigative specialists is lawful because they risk
suffering a severe attack while on duty that would endanger themselves, co-workers, and
bystanders and possibly harm and disrupt the employer's operations. 67
Observation: Unlike the Rehabilitation Act, the Americans with Disabilities Act, in
its definition of a "qualified person with disabilities," does not include the qualification
that such a person not endanger the health or safety of himself or others. However, the
ADA permits employers to use qualification standards that include job requirements
not to pose direct threats to the health or safety of others in the workplace. 68
Footnotes
Footnote 61. Scott v Federal Reserve Bank (1989, SD NY) 704 F Supp 441, 54 BNA
Footnote 62. McNichols v McDonnell Douglas Corp. (1988, ED Mo) 697 F Supp 1081.
Footnote 63. Sullivan v Chevron Corp. (1989, ED Pa) 50 BNA FEP CAS 134, 51 CCH
EPD 39322.
Footnote 64. Watkins v Turnage (1989, CA4) 883 F2d 70.
Footnote 65. Mantolete v Bolger (1985, CA9) 767 F2d 1416, 38 BNA FEP Cas 1081, 37
CCH EPD 35455, amd (CA9) 38 BNA FEP Cas 1517.
Footnote 67. Davis v Meese (1988, ED Pa) 692 F Supp 505, 47 BNA FEP Cas 828, 49
CCH EPD 38810, affd (CA3) 865 F2d 592, 48 BNA FEP Cas 1894.
Footnote 68. As to individuals protected by the ADA, see 209 et seq.
1070 Mistreatment of customers

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Legitimate customer complaints 69 and discourteous treatment of customers 70 may
constitute valid nondiscriminatory reasons for disciplinary action. For example, a
customer service employee was justifiably discharged for disconnecting a customer
phone call and falsifying a work record about the incident. The company had a policy of
discharging any customer service representative who deliberately disconnected customer
calls. The fact that a younger customer service representative who had also deliberately
disconnected a customer had been given more lenient treatment did not constitute
sufficient evidence of age discrimination because the younger employee had not falsified
company records. 71
However, a customer complaint that had "racial overtones" and was not investigated by
the employer or substantiated by the facts was found to be a pretextual excuse for
terminating a black employee because of her race. 72
Footnotes
Footnote 70. Forte v Kresge Co. (1971, ED NC) 4 BNA FEP Cas 386, 4 CCH EPD
7725, affd (CA4) 4 BNA FEP Cas 387, 4 CCH EPD 7726.
Footnote 71. Bell v Gas Service Co. (1985, CA8) 778 F2d 512, 39 BNA FEP Cas 826,
120 BNA LRRM 3515, 38 CCH EPD 35741.
Footnote 72. Williams v Trans World Airlines, Inc. (1981, CA8) 660 F2d 1267, 27 BNA
1071 Conduct outside of work

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Off-duty activity may be used to support a lawful discharge. Such conduct may be in
violation of the employer's work rules, a conflict of interest with the employer's business,
or simply evidence of unfitness for duty. For instance, a black employee was lawfully
discharged where he had appeared to violate the employer's anti-moonlighting policy by
operating his own business while in the defendant's employ, whereas his white co-worker
and apparent business associate in the private venture had ceased participating in the
business venture when he was hired by the defendant. The employer lawfully retained
the white employee, but refused to reinstate the terminated plaintiff. 73 Likewise, a
black security guard who shot and killed a person while off-duty demonstrated his
unfitness to deal with the stressful job duties required by the position and was lawfully
discharged even though he was not found guilty of any criminal wrongdoing in the
incident. 74
However, an employer violated Title VII by discharging a female employee, ostensibly
for violating an anti-moonlighting policy on her own time, when an exception had been
made for a male employee who had violated that policy on company time. Furthermore,
the evidence demonstrated that female employees who had been suspected of violating
the policy were promptly investigated and immediately discharged for violations, while
their male counterparts were neither investigated nor fired for violations that later came
to the employer's attention. 75
Because the employer's intent is the central concern in disparate treatment cases, the
employer's reasonable beliefeven if mistakenthat an employee is engaged in
misconduct outside of work is a legitimate reason for discipline. Thus, there was no
unlawful discrimination where an employer erroneously, but reasonably, believed that a
black employee was working at another job while on sick leave. 76
1071 ----Conduct outside of work [SUPPLEMENT]
Case authorities:
Terminated employee of rehabilitation center may have valid 1981 claim against center
if Third Circuit rules that 1991 amendments to 1981 apply retroactively, where black
employee allegedly was fired after letting former center client stay at his residence
overnight while employee tried to get him admitted to homeless shelter, although white
employees who violated same policy against fraternization with clients were retained,
because claim would seem to fall within amended 1981(b)'s coverage of discrimination
in termination of contracts. Richardson v Diagnostic Rehabilitation Ctr. (1993, ED Pa)
836 F Supp 252.
Footnotes
Footnote 73. Nix v WLCY/Radio/Rahall Communications (1984, CA11) 738 F2d 1181,
Footnote 74. McCray v Alexander (1985, CA10) 38 CCH EPD 35509.
Footnote 75. Matthews v A-1, Inc. (1984, CA5) 748 F2d 975, 36 BNA FEP Cas 894, 35
CCH EPD 34836.
Footnote 76. Davis v Greensboro News Co. (1985, MD NC) 39 BNA FEP Cas 535.
1072 Elimination of position

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Often employees are discharged because their positions have been eliminated or for
other, similar reasons through no fault of their own. If elimination of positions results
not in a termination, but in a demotion to a position of lesser responsibility and lower
pay, the same proof requirements that apply to discharges are applicable to the demotion.
For example, an employer articulated a legitimate nondiscriminatory explanation for its
demotion of a female supervisor rather than a male supervisor based on the fact that,
unlike the female, the male possessed computer knowledge necessary to turn the
department around. 77
1072 ----Elimination of position [SUPPLEMENT]
Case authorities:
Long-time employee of school district is denied relief from reduction-in-force
termination, where he served as assistant high-school principal during previous year and
thus was excluded from policy favoring employees with more seniority, because policy
simply determining it less disruptive to educational mission and more conducive to stable
learning environment to eliminate administrative positions without need to consider
matters of seniority and reassignment, or probable discharge, of teaching personnel is
rationally related to legitimate state interest. Murphy v Western Line Sch. Dist. (1993,
ND Miss) 832 F Supp 178.
When employee's position is terminated due to reduction in work force, ADEA does not
require employer to transfer terminated employee to another position regardless of
whether other position is occupied by less qualified, younger individual; therefore, failure
to transfer terminated employee to another position is not sufficient to establish violation
of ADEA. Meyer v Ernst & Young (1993, SD Ohio) 837 F Supp 865, 63 BNA FEP Cas
780.
Footnotes
Footnote 77. Verran v Kingsport Press, Inc. (1989, CA6) 872 F2d 1030.
2. Order of Proof in Discriminatory Discipline or Discharge Case [1073-1090]
a. Presenting the Plaintiff's Case [1073-1077]
1073 Establishing a prima facie disparate treatment case

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Cases of illegal discipline or discharge are most often brought under the disparate
treatment theory of discrimination. 78 When presenting a case of disparate treatment
under Title VII, a plaintiff must first establish a prima facie case of intentional
discrimination. To accomplish this, a plaintiff must present evidence that raises a
reasonable inference that the employer's action was based on an impermissible factor,
such as race or sex. 79
A prima facie case of discrimination in a discipline and discharge context may be
established under Title VII by the plaintiff's demonstrating that employees who are not of
the same protected group were treated more leniently by the employer under comparable
circumstances, that is, that they were not fired or were given lesser punishment for
similar transgressions. 80
An employee presents a prima facie disparate treatment case of discriminatory discharge
by showing:
(1) membership in a group protected by the act; 81
(2) satisfactory performance in his or her position; 82
(3) termination of employment or discipline on a job despite satisfactory performance;
and
(4) either that the employer attempted to replace 83 the individual with someone with no
better qualifications or, in a discipline situation, that other employees were disciplined
less severely. 84
The four-part burden of proof applicable to disparate treatment Title VII cases has been
applied in discriminatory discharge cases under the ADEA. 85
A prima facie case of discriminatory discharge under the Rehabilitation Act is established
by showing that the plaintiff is an "otherwise qualified handicapped individual" and by
demonstrating that the plaintiff was terminated because of her handicap. 86
1073 ----Establishing a prima facie disparate treatment case [SUPPLEMENT]
Practice Aids: McDonnell Douglas prima facie case and the non-minority plaintiff: Is
modification required? 1994 Ann Surv Am L 2:309 (1995).
Causation in employment discrimination analysis: a proposed marriage of the Croson and
Wards Cove rationales, 20 U Balt LR 307 (1993).
Case authorities:
Discharged employee met his de minimis burden of adequately pleading prima facie case
that he was discharged under circumstances giving rise to inference of discrimination
where he alleged that employer knew of his disability when he was discharged, and that
he would have become eligible for early retirement benefits (after 24 years of
employment) in following year. Alexander v Fujitsu Business Communication Sys., Inc.

(1993, DC NH) 818 F Supp 462.
In racial discrimination action under 42 USCS 1981 by bank vice-president who was
fired after permitting female stripper to perform at monthly branch manager's meeting
over which he presided, court's instruction that positions held by employees was factor
for jury to consider along with conduct in question in deciding whether individuals were
similarly situated to fired employee was proper. Hargett v National Westminster Bank,
USA (1996, CA2 NY) 78 F3d 836, 70 BNA FEP Cas 539.
In both pretext (wherein employee argues that employer's facially legitimate reason as
stated for employment decision was false and thus was not real reason for decision) and
mixed motive (which involves proof that adverse employment decision resulted from
mixture of legitimate reasons and prohibited discriminatory motives) cases of retaliation,
employee plaintiff has initial burden to establish prima facie case of employment
discrimination. Griffiths v CIGNA Corp. (1993, CA3 Pa) 988 F2d 457, 61 CCH EPD
Black female employees who claimed that they were refused promotion or fired because
they were black stated claim under 42 USCS 1981, where they also alleged that
employer purposefully excluded blacks from top-level positions, that most management
positions are filled by whites, that pregnant white women were treated better than
pregnant black women, and that discrimination took place in 1991 or later, because
women alleged that they were black, that they were qualified for their jobs, and that
non-blacks were treated more favorably; 1991 amendments extended 1981 protection,
but amendments are not retroactive. Hicks v Arthur (1994, ED Pa) 843 F Supp 949.
In order to establish claim for hostile work environment, Title VII plaintiff must show
that she belongs to protected class, that conduct in question was unwelcome, that
harassment was based on sex, that harassment was sufficiently severe or pervasive to
create abusive working environment, and that there is some basis for imposing liability
on employer. Glorioso v Aireco Supply (1995, DC Md) 67 BNA FEP Cas 1573.
In work rule violation cases, Title VII plaintiff may establish prima facie case by
showing either that he did not violate rule, or that, if he did, white employees who
engaged in similar acts were not punished similarly. Mayberry v Vought Aircraft Co.
(1995, CA5 Tex) 55 F3d 1086, 68 BNA FEP Cas 401, 66 CCH EPD 43595.
Mexican American police officer presented sufficient evidence for reasonable jury to
conclude that city discriminated against him on basis of national origin by giving him
more severe disciplinary treatment than Anglo colleagues, where Anglo officer was
charged with same misconduct but was treated less harshly, evidence showed hostile
treatment of Hispanics and discriminatory atmosphere in police department, and less
effort was made to solve crimes against Mexican Americans. Polanco v City of Austin
(1996, CA5 Tex) 78 F3d 968, 70 BNA FEP Cas 653.
In Title VII case alleging discriminatory discipline, individuals with whom plaintiff seeks
to compare his treatment must have dealt with same supervisor, have been subject to
same standards, and have engaged in same conduct without such differentiating or
mitigating circumstances as would distinguish their conduct or employer's treatment of
them for it. Harrison v Metropolitan Gov't (1996, CA6 Tenn) 80 F3d 1107.
Terminated corrections officer cannot establish prima facie case of discrimination under
42 USCS 1981, even though corrections corporation employing him admits that other
employees may have appeared on local television programs without authorization,
because others were not "similarly situated" given uncontested evidence that they never
openly disparaged corporation. Henderson v Corrections Corp. of Am. (1996, ED Tenn)
918 F Supp 204.
Liability under Title VII does not turn on bigotry of company managers unless that
bigotry resulted in injury to plaintiff; thus, showing of other instances of discrimination
in company may have evidentiary value, but it is not substitute for showing of injury to
plaintiff. Chambers v American Trans Air (1994, CA7 Ind) 17 F3d 998, 64 BNA FEP
Cas 213, 63 CCH EPD 42862, reh, en banc, den (CA7 Ind) 1994 US App LEXIS 9695.
White employee's replacement by another white employee does not prevent replaced
employee from establishing Title VII prima facie case of discrimination, since Title VII
protects persons, not classes. Carson v Bethlehem Steel Corp. (1996, CA7 Ind) 82 F3d
In action brought by Mexican American former employee who had been discharged for
falsifying his expense account record, defendant employer was entitled to summary
judgment, despite employee's contention that other similarly situated non-Mexican
American employees who had also committed expense account fraud had not been
terminated from their jobs, because employee's statement in his deposition and affidavit,
that he had been told of numerous non-Mexican American employees who had
committed such fraud but who were not fired, was inadmissible hearsay, and only other
evidence employee presented with respect to his contention showed that one nonMexican American who falsified his expense account was not fired, while two other
non-Mexican Americans who did same thing were fired. Garduno v Quaker Oats Co.
(1994, ND Ill) 65 BNA FEP Cas 1689.
In class action pursued under disparate treatment theory, plaintiffs must show more than
mere occurrence of isolated or accidental or sporadic discriminatory acts; statistical
evidence generally plays major role in proving pattern and practice, but statistics are not
required and do not preclude evidence of individual discriminatory acts. Stambaugh v
Kansas Dep't of Corrections (1993, DC Kan) 151 FRD 664, summary judgment den,
motion gr (DC Kan) 1994 US Dist LEXIS 2214.
In Title VII employment discrimination case, summary judgment may be entered if
plaintiff has failed to carry his or her burden of proof on elements of prima facie case.
Davis v American Tel. & Tel. Co. (1993, MD Fla) 63 BNA FEP Cas 1339.
Although eight-month interval between time Title VII plaintiff engaged in protected
conduct and time of adverse employment action is not strongly suggestive of causal link
between two events, it may, depending on other circumstances in particular case, be
sufficient to meet plaintiff's burden of establishing prima facie case of retaliation. Devera
v Adams (1995, DC Dist Col) 874 F Supp 17, 67 BNA FEP Cas 102.
Footnotes
Footnote 78. As to disparate treatment generally, see 2699 et seq.
493, 96 S Ct 2574, 12 BNA FEP Cas 1577, 12 CCH EPD 10997; EEOC Compliance
Manual, 612.4(a).
Footnote 81. 1074.
Footnote 82. 1075.
Footnote 83. 1076.
Footnote 85. First CircuitLoeb v Textron, Inc. (1979, CA1) 600 F2d 1003, 20 BNA
Second CircuitPena v Brattleboro Retreat (1983, CA2) 702 F2d 322, 31 BNA FEP Cas
198, 31 CCH EPD 33416.
Fourth CircuitSmith v University of North Carolina (1980, CA4) 632 F2d 316, 23
BNA FEP Cas 1739, 24 CCH EPD 31281
Fifth CircuitPrice v Maryland Casualty Co. (1977, CA5) 561 F2d 609, 16 BNA FEP
Cas 84, 15 CCH EPD 7890.
Ninth CircuitSutton v Atlantic Richfield Co. (1981, CA9) 646 F2d 407, 25 BNA FEP
Cas 1619, 26 CCH EPD 31897.
DC CircuitCuddy v Carmen (1982) 224 App DC 287, 694 F2d 853, 30 BNA FEP Cas
600, 30 CCH EPD 33204.
Footnote 86. Reynolds v Brock (1987, CA9) 815 F2d 571, 43 BNA FEP Cas 1077, 43
CCH EPD 37025.
1074 Protected class membership requirement

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To be unlawful under job discrimination laws, a discharge must be based at least in part
on the employee's protected class membership. Thus, an employer's decision to terminate
an employee may be "unwarranted, unkind or even unprincipled," but it does not violate
Title VII unless the employee demonstrates by direct or circumstantial evidence that a
prohibited factor, such as sex, was a factor in the decision. 87 By the same token,
inconsistencies in discipline alone will not establish a violation if the inconsistencies are
not connected to an impermissible factor. 88 For instance, a foreign national from Africa
failed to establish his protected-class-membership under Title VII where he alleged that
the State Department had refused to sponsor him for permanent resident status when it
terminated him, while it had sponsored another African national for permanent resident
status. Although the other African was of a different nationality, the complaint was
viewed as being based on immigrant status rather than national origin. 89
1074 ----Protected class membership requirement [SUPPLEMENT]
Case authorities:
To establish prima facie case of racial discrimination in enforcement of employee
disciplinary measures under Title VII, plaintiff must show that he is member of class
protected by Title VII, that prohibited conduct in which he engaged was comparable in
seriousness to misconduct of employees outside of protected class, and that disciplinary
measures enforced against him were more severe than those enforced against those other
employees. Cook v CSX Transp. Corp. (1993, CA4 Md) 988 F2d 507, 61 BNA FEP Cas
458, 61 CCH EPD 42111, amd (CA4) slip op.
Element of prima facie case, which requires that plaintiff belong to protected group,
might very well be impossible not to establish, because in order to be in protected group,
one must be either male or female. Prescott v Independent Life & Accident Ins. Co.
(1995, MD Ala) 878 F Supp 1545, 67 BNA FEP Cas 876.
Footnotes
Footnote 87. Watson v Magee Women's Hospital (1979, WD Pa) 472 F Supp 325, 19
Footnote 88. Centenio v Helena Garment Co. (1979, ED Ark) 475 F Supp 25, 21 BNA
Footnote 89. Thiuri v Shultz (1986, DC Dist Col) 42 BNA FEP Cas 857.
1075 Satisfactory performance requirement

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To establish a prima facie case of discriminatory discharge or discipline under Title VII,
the plaintiff need not show perfect performance, or even average performance, to
establish that he was satisfying the normal requirements of his work. He need only show
that his performance was of sufficient quality to merit continued employment, thereby
raising an inference that some other factor was involved in the employer's decision. 90
The employee's performance also does not have to be compared with that of other
employees, although it may be relevant in a later analysis of the merits of the claim. 91
As a result of a claimant's failure to establish the discipline or satisfactory performance
requirement, a prima facie case of discriminatory discharge was not established:
by two black employees alleging termination in violation of Title VII and 42 USCS
1981 after their return from medical leave, where their excessive absenteeism and
physical inability to perform their job duties rendered them unqualified to perform their
required duties under an increased workload that applied to all employees; 92
by a probationary police officer alleging discharge in violation of Title VII and 42
USCS 1983 and 1985, when she failed to demonstrate that she had satisfactorily
performed or was qualified for the job, even though she had graduated from police
training academy; 93
by a former district sales representative who failed to demonstrate that he was doing his
job well enough to meet his employer's legitimate expectations. Since he had failed to
direct his sales efforts to his employer's current marketing objectives of obtaining new
accounts, his evidence that his performance was satisfactory regarding the servicing of
his long-standing accounts was not relevant. 94
In a departure from the position taken by most circuits, the Fifth Circuit has held that
discharged or disciplined employees need not prove that they were performing their jobs
at a level that met their employer's legitimate expectations in order to make out a prima
facie case of age discrimination. Such a requirement leads to unnecessary redundancy by
putting the plaintiff's qualifications at issue at both the prima facie case and pretext stages
95 of a case, which cannot be reconciled with the Supreme Court's attempts to simplify
the presentation of an employment discrimination case. Rather, a plaintiff challenging
termination or demotion can ordinarily establish a prima facie case of age discrimination
by showing that the plaintiff continued to possess the necessary qualifications for the job
at the time of the adverse action. 96
Footnotes
Footnote 90. Flowers v Crouch-Walker Corp. (1977, CA7) 552 F2d 1277, 14 BNA FEP
Cas 1265, 14 CCH EPD 7510; Powell v Syracuse University (1978, CA2) 580 F2d
Cas 1265, 14 CCH EPD 7510.
Footnote 92. Mitchell v Safeway Stores, Inc. (1985, DC Kan) 39 BNA FEP Cas 1213.
Footnote 93. Ratliff v Milwaukee (1985, ED Wis) 608 F Supp 1109, 38 BNA FEP Cas
611, affd (CA7) 795 F2d 612, 41 BNA FEP Cas 296, 40 CCH EPD 36304.
Footnote 94. Duran v Genicom Corp. (ND Ill) No. 86 C 0397, 4/16/87.
Footnote 95. 1082-1087.

Footnote 96. Bienkowski v American Airlines, Inc. (1988, CA5) 851 F2d 1503, 47 BNA
1076 Replacement requirement

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The traditional disparate treatment prima facie case formula in unlawful discipline or
discharge situations includes an expectation that a plaintiff can establish that the
employer hired a replacement, or at least attempted to do so. 97 However, there are
differences in how courts have viewed the necessity of this requirement in Title VII and
ADEA cases, as well as the persuasive value of the fact that the replacement was not a
member of the claimant's protected class. 98
One viewpoint requires that an employee establish replacement by an individual who is
not in the employee's protected class. 99 As a result of the failure to establish the
element of the plaintiff's replacement, a prima facie case of discriminatory discharge was
not established:
by a female accountant who failed to show that she had been replaced by a male; 1
by an older worker who failed to show that he was replaced by a younger person after
his job was eliminated in a company reorganization. 2
Provided that an inference of disparate treatment has been raised by some evidence, other
courts find that a plaintiff may still establish a prima facie case, even though he fails to
show that his former employer has replaced him or has attempted to do so. Under that
view, an employee need not demonstrate that he was replaced at all, provided that he can
show that he was subjected to an adverse employment action. 3 For example, a prima
facie case of discriminatory discharge was established under Title VII by a plaintiff
alleging religious discrimination, even though her job was eliminated after her
termination. 4
The division of opinion regarding the necessity of the replacement requirement is most
acute with regard to the ADEA. Some courts require proof that a younger person was
selected for the job from which the older plaintiff was displaced, 5 while other courts
maintain that proof of replacement by a younger employee is not essential. 6
Even in a circuit that requires an ADEA plaintiff to demonstrate that a younger person
was selected as his replacement, the replacement may also be within the protected age
group. Thus, a 59-year-old plaintiff established a prima facie case even though his
replacement was 56 years old. 7 Furthermore, the fact that a discharged employee was
replaced by a younger employee does not necessarily establish a prima facie case. An
absolute age difference rule in ADEA cases is not possible. A plaintiff must show that
the replacement was sufficiently younger to permit an inference of age discrimination. 8

Regardless of which court is addressing a discriminatory discharge claim, it is clear that
evidence of a replacement by a person not in the claimant's protected class will
strengthen the prima facie case, while the absence of such evidence will detract from the
persuasive value of a prima facie case. However, replacement by another who is a
member of the same minority group as a former employee does not totally eliminate the
possibility of establishing a prima facie case of discriminatory discharge if other evidence
of discriminatory intent is present. 9 For example, a black employee made out a prima
facie discriminatory discharge case under Title VII, even though his job had not been
filled by a white person after his departure, because the employer had openly
discriminated against him on the basis of his race. 10 Another court has held that the sex
of a terminated plaintiff's replacement, although a relevant consideration to a charge of
disparate treatment sex discrimination, is not determinative in establishing either a prima
facie case or the ultimate merits of a Title VII claim. 11 Furthermore, replacing a
protected class member with a member of a different protected class that traditionally
suffered from discrimination does not necessarily dispel an inference of unlawful
discrimination. Otherwise, it would be impossible for an employee to establish a prima
facie case unless an employer discriminated against every protected group by hiring a
"non-protected" person to fill the position. 12
1076 ----Replacement requirement [SUPPLEMENT]
Case authorities:
In situation where employees are terminated as result of reduction in work force,
presumption is that those positions are eliminated or left unfilled; generally, job functions
of terminated employees are redistributed among remaining employees. Phillips v
Manufacturers Hanover Trust Co. (1995, SD NY) 67 BNA FEP Cas 1737.
Female Title VII plaintiff, who claims that she was discharged because of sex
discrimination, cannot establish prima facie case of sex discrimination where she was
replaced by female. Weber v United Parcel Serv. (1993, DC Kan) 67 BNA FEP Cas
1161.
Evidence supported jury verdict in favor of defendant former employer in age
discrimination action under state law by former manager, where, because plaintiff's
duties were spread among remaining employees, plaintiff could not show replacement by
younger worker. Loeffler v Kjellgren (1994, Tenn App) 884 SW2d 463, app den (Sep 12,
1994).
Footnotes
Footnote 97. 1073.
Footnote 98. 1074.
Cas 1265, 14 CCH EPD 7510; Osborne v Cleland (1980, CA8) 620 F2d 195, 22 BNA
FEP Cas 1292, 22 CCH EPD 30882.

83-2018-S, 5/22/86.
Footnote 2. Huth v Executone, Inc. (1986, ED Mich) 42 BNA FEP Cas 1021, 42 CCH
EPD 36710.
Footnote 3. Coley v Potters Industries, Inc. (1984, DC NJ) 36 BNA FEP Cas 697.
Footnote 4. Meiri v Dacon (1985, CA2) 37 BNA FEP Cas 75.
Footnote 5. Third CircuitSmithers v Bailar (1980, CA3) 629 F2d 892, 23 BNA FEP
Cas 1206, 24 CCH EPD 31219.
Sixth CircuitBlackwell v Sun Electric Corp. (1983, CA6) 696 F2d 1176, 30 BNA FEP
Cas 1177, 30 CCH EPD 33268.
Tenth CircuitSchwager v Sun Oil Co. (1979, CA10) 591 F2d 58, 19 BNA FEP Cas
872, 19 CCH EPD 9107.
D.C. CircuitCuddy v Carmen (1982) 224 App DC 287, 694 F2d 853, 30 BNA FEP Cas
600, 30 CCH EPD 33204.
Footnote 6. First CircuitLoeb v Textron, Inc. (1979, CA1) 600 F2d 1003, 20 BNA FEP
Cas 29, 20 CCH EPD 30028.
Fourth CircuitLovelace v Sherwin-Williams Co. (1982, CA4) 681 F2d 230, 29 BNA
Seventh CircuitSmith v World Book-Childcraft International, Inc. (1980, ND Ill) 502 F
Ninth CircuitDouglas v Anderson (1981, CA9) 656 F2d 528, 27 BNA FEP Cas 47, 115
BNA LRRM 4906, 27 CCH EPD 32134.
Eleventh CircuitPace v Southern Ry. System (1983, CA11) 701 F2d 1383, 31 BNA
Footnote 7. Buttell v American Podiatric Medical Asso. (1988, DC Dist Col) 700 F Supp
Footnote 8. Bienkowski v American Airlines, Inc. (1988, CA5) 851 F2d 1503, 47 BNA
Footnote 9. Byrd v Roadway Express, Inc. (1982, CA5) 687 F2d 85, 29 BNA FEP Cas
1588, 30 CCH EPD 33172.
Footnote 10. Bailey v Binyon (1984, ND Ill) 583 F Supp 923, 36 BNA FEP Cas 1236, 36
CCH EPD 34997.
Footnote 11. Walker v St. Anthony's Medical Center (1989, CA8) 881 F2d 554, 50 BNA
Footnote 12. De Lesstine v Ft. Wayne State Hospital & Training Center (1982, CA7) 682
103 S Ct 378, 30 BNA FEP Cas 224, 30 CCH EPD 33127; Ratliff v Milwaukee (1985,
ED Wis) 608 F Supp 1109, 38 BNA FEP Cas 611, affd (CA7) 795 F2d 612, 41 BNA FEP
Cas 296, 40 CCH EPD 36304.
1077 Showing discriminatory intent

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Regardless of what requirements are imposed as part of a prima facie case of disparate
treatment in discharge or discipline, the evidence must demonstrate an inference of
discrimination, that is, a discriminatory intent.
In the absence of replacement by a person outside of the claimant's protected class, 13 a
claimant may establish a prima facie case of discriminatory discharge under Title VII by
showing that the employer had a continued need for someone to perform the same work
after the claimant was discharged. 14 An inference of discriminatory intent was also
raised by the discharge of a black employee whose tenure coincided exactly with the
duration of a contract that required the employer to meet racial quotas. 15
Discriminatory intent may taint a discharge procedure even when the ultimate
decision-makers did not have such an intent. Although a district court specifically found
no intentional racial discrimination by individual defendants, there was no inconsistency
in the trial court's findings of discriminatory discharge on the part of a municipality.
Although the two high-ranking officials who made the final recommendation and
decision to discharge did not intentionally discriminate, the city was liable for disparate
treatment because there was uncontradicted evidence of intentional discrimination by the
lesser officials who initiated the discharge proceeding. 16
To prove intentional discrimination, the plaintiff need not prove that an impermissible
factor, such as race, was the only motive for the discipline imposed. Proving that it was a
"significant factor" in the disciplinary decision is sufficient. 17
This means that the
plaintiff must eventually prove that the disciplinary action would not have been taken
"but for" the discriminatory motive. 18
1077 ----Showing discriminatory intent [SUPPLEMENT]
Case authorities:
Fact that same individual interviewed, hired and fired Title VII plaintiff creates strong
inference against finding of discrimination, because person who intends to discriminate

against minorities is unlikely to hire them in first place. EEOC v Our Lady of the
Resurrection Medical Ctr. (1995, ND Ill) 67 BNA FEP Cas 1779.
Generally, testimony of other employees about their treatment by defendant employer is
relevant to issue of employer's discriminatory intent. Burks v Oklahoma Publ.Co. (1996,
Footnotes
Footnote 13. 1076.
Footnote 14. Cumpiano v Banco Santander Puerto Rico (1990, CA1) 902 F2d 148, 52
Footnote 15. Williams v Community Contacts, Inc. (1989, ND Ill) 1989 US Dist LEXIS
6704.
Footnote 16. Jiles v Ingram (1991, CA8) 944 F2d 409, 56 BNA FEP Cas 1306, 57 CCH
EPD 40983.
Footnote 17. Lincoln v Board of Regents (1983, CA11) 697 F2d 928, 31 BNA FEP Cas
FEP Cas 1768, 32 CCH EPD 33829.
b. Defending a Discipline or Discharge Case [1078-1081]
1078 Employer's burden of proof in disparate treatment cases

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Once an inference of discriminatory discipline or discharge has been raised in a disparate
treatment situation by establishing a prima facie case, the employer must address and
explain any remaining inference of discrimination. The employer may either rebut any
element of the prima facie case 19 or alternatively may articulate a legitimate,
nondiscriminatory explanation for the discipline or discharge. 20 In the absence of
intentional discrimination, under Title VII an employer can fire an employee for a good
or bad reason, no reason, or one based on erroneous facts. 21
Whether an employer's explanation can overcome an employee's prima facie case
depends, to some extent, on the strength of the discriminatory inference raised by the
prima facie case. Since the burdens of proof are interdependent, a weak prima facie case
will impose a lesser burden on the employer to articulate a nondiscriminatory rationale.
22
1078 ----Employer's burden of proof in disparate treatment cases
[SUPPLEMENT]
Case authorities:
When company's decision to reduce its workforce is due to exercise of its business
judgment, it need not provide evidence of financial distress to make it legitimate
reduction in force; further, company need not provide objective criteria for determining
who should be discharged to make such reduction in force legitimate. Hardin v
Hussmann Corp. (1995, CA8 Mo) 45 F3d 262, 66 BNA FEP Cas 1369, reh, en banc, den
(1995, CA8 Mo) 1995 US App LEXIS 4518.
Footnotes
Footnote 19. 1079.
Footnote 20. 1080.
Footnote 21. Nix v WLCY/Radio/Rahall Communications (1984, CA11) 738 F2d 1181,
Footnote 22. Meiri v Dacon (1985, CA2) 759 F2d 989, 37 BNA FEP Cas 756, 36 CCH
1728, 38 CCH EPD 35535.
1079 Rebutting prima facie elements

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Employers can overcome a disparate treatment prima facie case of discriminatory
discipline and discharge by showing that the plaintiff failed to establish all the elements
required to demonstrate a prima facie case. Since it is necessary to establish that an
involuntary demotion actually occurred as part of a prima facie case of discriminatory
demotion, an employer may rebut by showing that a demotion in fact did not occur. Thus,
an employer successfully rebutted a claim that an employee had not been demoted by
showing that she voluntarily resigned her position as head nurse to return to a staff nurse
position when she had difficulty adjusting to a change in the role of head nurse. 23 An
employer has also successfully rebutted prima facie elements where it indicated that the
plaintiff's termination was based on the company's changing needs caused by current
growth and projected future progress, so that the plaintiff's evidence that his past work
had been acceptable failed to demonstrate that he was meeting the requirements of his
position as it existed at the time of his discharge. 24
The timing of the employer's actions may have an effect on how successful it is in
rebutting a prima facie case of discharge or discipline discrimination. For example, an
employer that subsequently discharged two white employees for violating the same
attendance rule that formed the basis for the previous discharge of a black employee, did
not totally rebut the issue of its intent or motive at the time of the plaintiff's discharge. 25
Employers seeking to rebut the plaintiff's replacement as a prima facie element must first
ascertain whether the prima facie formulation relied on by the plaintiff requires the
replacement element. 26 Thus, when the plaintiff relied on an alternative prima facie
model, the employer's replacement of him with a member of the same protected class was
not conclusive evidence of a lack of discriminatory intent in the discharge, because it did
not rebut a requirement of the prima facie case. 27
1079 ----Rebutting prima facie elements [SUPPLEMENT]
Case authorities:
It would be inequitable to hold that after-acquired evidence of misrepresentations in job
application should preclude otherwise successful plaintiff from recovering damages, and
whether any of ordinary remedies of illegally discharged employee other than damages
should be forfeited would depend upon all facts and circumstances of case. EEOC v
Farmer Bros. Co. (1994, CA9 Cal) 31 F3d 891, 94 CDOS 5967, 94 Daily Journal DAR
10869, 65 BNA FEP Cas 857.
Footnotes
Footnote 23. Glymph v Spartanburg General Hospital (1986, CA4) 783 F2d 476, 40
Footnote 24. Jang v Biltmore Tire Co. (1986, CA7) 797 F2d 486, 41 BNA FEP Cas 758,
41 CCH EPD 36432.
Footnote 25. Birdwhistle v Kansas Power & Light Co. (1989, DC Kan) 723 F Supp 570,
52 CCH EPD 39519.
Footnote 26. 1076.
Footnote 27. Davis v Greensboro News Co. (1985, MD NC) 39 BNA FEP Cas 535.
1080 Articulating a legitimate nondiscriminatory explanation

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An individual claim of discrimination in disciplinary actions will not prevail by itself or
in conjunction with a class action if the employer articulates an unrebutted,
nondiscriminatory reason for the particular action. 28 The employer's burden to
articulate a nondiscriminatory reason is not an onerous one. 29
For the employer's proferred reason to be legitimate, however, it must be based on
information the employer had available when the decision was made. Thus, a defendant
employer in an ADEA suit was not permitted to introduce evidence regarding the
superior performance of a discharged employee's successor because the subsequent
superior performance of the plaintiff's successor was not known at the time of the
plaintiff's dismissal. 30 If challenged, the underlying legitimacy may be scrutinized to
ensure that the employer's reason does not harbor a discriminatory motive. For example,
a legitimate nondiscriminatory explanation for discipline or discharge was successfully
articulated when a bilingual radio announcer was terminated for failing to follow his
employer's instruction to cease speaking Spanish on the air when the order was shown to
be based solely on a programming decision. 31
Under 503 of the Rehabilitation Act of 1973, the Department of Labor has decided that
conflicting evidence of discriminatory and nondiscriminatory reasons for an employee's
termination by a federal contractor presents a "dual motive" issue, which imposes a
different burden on the employer than that of simply articulating a legitimate
nondiscriminatory explanation for the action. When "dual motives" are evident, the
employer must show that it would have made the same decision in the absence of the
discriminatory reason. 32
1080 ----Articulating a legitimate nondiscriminatory explanation
[SUPPLEMENT]
Practice Aids: St. Mary's Honor Center v. Hicks: Lots of sound and fury, but what
does it signify? 19 Emp Rel LJ 147 (1994).
St. Mary's Honor Center v. Hicks: The Title VII shifting burden stays put, 25 Loyola LJ
(Chi) 269 (1994).
Between pretext only and pretext plus: Understanding St. Mary's Honor Center v. Hicks
and its application to summary judgment, 69 Notre Dame LR 1251 (1994).
St. Mary's v. Hicks: The Supreme Court restricts the indirect method of proof in Title VII
claims, 13 St Louis U Public LR 821 (1994).
St. Mary's Honor Center v. Hicks [ 125 LED2d 407 (1993)]: Interpretation of Title VII
takes a wrong turn, 96 W Va LR 217 (1993).
Case authorities:
General reduction in force is legitimate, nondiscriminatory reason for employer to
terminate employees, and when financial circumstances require company to terminate
specified percentage of its employees, qualified personnel will necessarily be discharged;
thus, employee who was discharged in reduction in force was not discriminated against,
even though she was qualified, where more qualified employees were retained. Brown v
Manufacturers Hanover Trust Co. (1993, SD NY) 61 BNA FEP Cas 1367.
African-American female housekeeping supervisor's racial discrimination claims are
denied, even though she was replaced by white female who was hired at rate of 15 cents
more per hour, because supervisor produced admissible evidence that supervisor had
been implicated in two thefts at workplace in 3-month period, and that she had
quitleaving before her shift was overbecause supervisor failed to prove by
preponderance of evidence that employer terminated her because of her race in violation
of 42 USCS 1981, 1983 and 2000e et seq. LaFleur v Westridge Consultants (1994,
ED Tex) 844 F Supp 318.
Nothing in Title VII's evidentiary framework prevents employer from presenting
race-neutral reason for contested action during plaintiff's case; since ultimate burden of
persuasion remains with plaintiff, defendant is not required to put on its case at close of
plaintiff's case in chief if defendant has already met its evidentiary burden by producing
evidence of nondiscriminatory reason for its conduct through cross-examination of
plaintiff's witnesses. Diehl v Tele-Solutions (1995, CA6 Ohio) 57 F3d 482, 68 BNA FEP
Cas 86.
Nondiscriminatory employer actions occurring subsequent to filing of discrimination
complaint will rarely be relevant as circumstantial evidence in favor of employer due to
obvious incentive in such circumstances for employer to take corrective action in attempt
to shield itself from liability. Lam v University of Hawaii (1994, CA9 Hawaii) 40 F3d
1551.
Defendant employer's proffer of legitimate nondiscriminatory reasons justifying
discharge of plaintiff is bolstered by its conditional offer of reemployment which plaintiff
rejected. Villareal v ATC Management Corp. (1994, DC Or) 64 BNA FEP Cas 418.
Terminated university instructor's 1983 equal protection claim is denied summarily,
where instructor alleges that racial discrimination was real reason for his nonrenewal but
points to no specific evidence that officials' actions were improperly motivated, because
university has made prima facie showing that decision not to extend black instructor's
contract was dictated by discontinuance of federal funding for it, and subjective intent to
discriminate is essential element of 1983 equal protection claim. Subryan v Regents of
University of Colorado (1993, DC Colo) 813 F Supp 753.
Agency was not required to assign employee who was on temporary medical restrictions
due to hand injury to permanent light- duty tasks that did not comprise complete and
separate position, hence appellant failed to prove affirmative defense of handicap
discrimination. Crew v Department of the Navy (1993, MSPB) 59 MSPR 495.
Administrative judge's finding that appellant was removed from position of alcohol/drug
abuse counselor because of his bipolar disorder and that agency failed to establish that he
could not perform duties of position were supported by medical evidence that appellant
was well, stable, and taking lithium regularly and would continue to do so if returned to
duty. Frye v Department of the Army (1994, MSPB) 63 MSPR 242.
Footnotes
Footnote 28. Naraine v Western Electric Co. (1974, CA8) 507 F2d 590, 10 BNA FEP
Cas 301, 8 CCH EPD 9836.
Footnote 30. Durso v Wanamaker (1985, ED Pa) 38 BNA FEP Cas 1127.
Footnote 31. Jurado v Eleven-Fifty Corp. (1985, CD Cal) 630 F Supp 569, 39 BNA FEP
CCH EPD 36960, 106 CCH LC 12310.
Footnote 32. United States Dept. of Labor, Office of Federal Contract Compliance
Programs v Norfolk & W. R. Co. (1986, Dept of Labor) 42 BNA FEP Cas 814.
1081 Evidence of "special concern" for the plaintiff

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An employer may attempt to prove the absence of a discriminatory motive in a
discriminatory discipline or discharge case by demonstrating special concern or
privileged treatment of the employee or members of his protected group prior to the
punishment or termination. 33
1081 ----Evidence of "special concern" for the plaintiff [SUPPLEMENT]
Practice Aids: Validity, construction, and application of 274A of Immigration and
Nationality Act (8 USCS 1324a), involving unlawful employment of aliens. 130
ALR Fed 381.
Footnotes
Footnote 33. Alexander v Gardner-Denver Co. (1975, CA10) 519 F2d 503, 11 BNA FEP
c. Overcoming the Employer's Explanation [1082-1087]
1082 The burden of showing pretext

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When an employer articulates a nondiscriminatory reason for disciplinary action or
discharge, the employee must present evidence that the reason is a pretext for a
discriminatory motive. This may be done directly, by showing that a discriminatory
reason more likely motivated the action taken by the employer, 34 or indirectly, by
showing that the employer's reason is not believable, 35
an employee is entitled to
have the court consider all relevant evidence on the issue of pretext, including statistical
evidence 36 comparing the plaintiff's performance to the performance of other
employees who were not discharged, even though the employer did not have that
information when it decided to terminate the plaintiff. 37 Thus, a plaintiff was not given
a fair opportunity to rebut the employer's nondiscriminatory performance rationale for
her demotion when the trial court would not admit any evidence she offered of
discriminatory treatment that may have affected her performance prior to the demotion.
38
On the other hand, a plaintiff's mere perception that her employer had discriminated
against her, without evidence of the employer's discriminatory animus or of disparate
treatment of male and female employees, was insufficient to prove that the employer's
explanations were pretextual. 39 Further, to establish that an employer's explanation for
a plaintiff's discharge is pretextual because it was contradicted by later events, the
plaintiff must show that the employer's true motivation for the discharge was
discrimination, and cannot merely rely on the contradiction itself. Therefore, when an
employer relied on its doctor's opinion that the plaintiff was fit to return to work, and
discharged her for failing to report back from medical leave, a later finding by the state
workers' compensation board that she was unfit to work at the time of her discharge did
not necessarily prove that the employer's discharge decision or its subsequent refusal to
reinstate her was based on discriminatory animus, rather than a good-faith reliance on its
doctor's contrary opinion. 40
In ADEA cases where the hirer and firer are the same individual and the termination of
employment occurs within a relatively short time span following the hiring, a strong
inference exists that discrimination was not a determining factor for the employer's
adverse action. It makes no sense to hire workers from a disliked group, thereby
incurring the psychological costs of associating with them, only to fire them once they
are on the job. Only from egregious facts in this context could a discharge still be proven
to have been discriminatory. 41
1082 ----The burden of showing pretext [SUPPLEMENT]

Case authorities:
Summary judgment was properly granted for defendants in physician's 42 USCS 1981
claim that other physicians referred their patients elsewhere because of discrimination,
where physicians cited referral physician's greater compatibility with their individual
philosophies of care and noted that physician they chose for referrals had more skillful
interactions with referring physicians and patients, and plaintiff physician failed to raise
any suspicion that proffered reasons were pretextual. Betkerur v Aultman Hosp. Ass'n
(1996, CA6 Ohio) 78 F3d 1079, 1996-1 CCH Trade Cases 71336.
Title VII plaintiff (black female), who was allegedly fired for using threatening language
to customer, was entitled to court order which required defendant employer to answer
interrogatories regarding other employees with customer complaints on company-wide
basis, rather than only with respect to district in which plaintiff had been employed,
because termination decision was not made locally, and one of grounds asserted by
defendant in support of its pending motion for summary judgment was that plaintiff could
not establish that reason articulated by defendant for her discharge was pretextual
because no white employees had engaged in conduct of nature similar to that which was
basis for plaintiff's termination. Kitchen v Dial Page (1995, ED Tenn) 67 BNA FEP Cas
482.
After prima facie case is established, burden then shifts to defendant employer to
articulate legitimate nondiscriminatory reason for its employment decision; then, in order
to prevail, plaintiff must demonstrate that employer's alleged reason for adverse
employment decision is pretext for another motive which is discriminatory. Lam v
Footnotes
Footnote 34. 1085-1087.
Footnote 35. Texas Dept. of Community Affairs v Burdine (1981, US) 450 US 248, 67
As to showing that the employer's reaons is not believable, see 1083 and , see
1084.
Footnote 36. 1088-1090.
Footnote 37. Davis v West Community Hospital (1986, CA5) 786 F2d 677, 40 BNA FEP
Cas 800, 39 CCH EPD 36002.
Footnote 38. Allen v County of Montgomery (1986, CA11) 788 F2d 1485, 40 BNA FEP
Cas 1278.
Showing pretext when the employer's explanation for the discharge is based on
inadequate performance is specifically discussed at 1084.
Footnote 39. Andre v Bendix Corp. (1986, ND Ind) 42 BNA FEP Cas 483, motion den
(ND Ind) 42 BNA FEP Cas 1895, 43 CCH EPD 37190, affd (CA7) 841 F2d 172, 46
Footnote 40. Samuels v Raytheon Corp. (1991, CA1) 934 F2d 388, 56 BNA FEP Cas 53,
56 CCH EPD 40818.
Footnote 41. Proud v Stone (1991, CA4) 945 F2d 796, 57 CCH EPD 40979.
1083 Showing the employer's explanation lacks credibility

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Employers' nondiscriminatory explanations for disciplinary action or discharge may be
exposed as pretextual by showing that the reasons given are not true or lack credibility.
42
Once the plaintiff has proven that the employer's explanation is not credible under the
ADEA, the plaintiff can prevail without having to make the additional showing that age
was a determining factor in the discharge. 43
One way to demonstrate pretext is for the employee to show that whatever reason the
employer has given for its decision did not exist when the termination decision was
made. 44 Employees also may be able to establish that an employer's explanation lacks
credibility because it involves actions that are not borne out by subsequent events, or
could have been averted by a simple alternative to discipline or discharge. 45
Another basis on which claimants assert pretext is that the employer's nondiscriminatory
explanation does not conform to its legitimate business interests and is, therefore, an
excuse that attempts to hide a discriminatory motivation. 46
Caution: An employer's mistaken business judgment may be so grossly careless as

to raise an inference of discriminatory intent that is unable to be explained merely by
admitting an error. Furthermore, if a mistake is made in a business judgment seen as
crucial to an employer's interests, a discrimination claimant will be more likely to
succeed in showing that such a mistake was unlikely under normal circumstances, and
is merely a pretextual excuse for bias.
The fact that an employee is discharged close to the date his pension benefits are to vest
can be probative evidence of age discrimination. Although a plaintiff's supervisor
claimed to be unaware that the employee's pension was due to vest within eight months
of his discharge, a memorandum to the supervisor from other supervisors, which named
the plaintiff as a likely candidate for discharge, suggested that higher-level managers had
the opportunity to discover the plaintiff's retirement status and were involved in the
discharge decision. 47 However, another court has held that although an employer's
explanation for an employee's discharge was not the true reason, the true reason was
nondiscriminatory. The employeea white womanhad been harassed at work for dating
a black employee. However, those who had harassed her were promptly disciplined, no
further harassment had occurred for several months, and the black employee had been
fired for other reasons. The employer fired her because the employee she had dated had
shot her, and the employer was afraid of future violence in the workplace. 48
1083 ----Showing the employer's explanation lacks credibility [SUPPLEMENT]
Case authorities:
Terminated employee failed to carry burden of proving that his reports of environmental
law violations were substantial factor in supervisor's decision to recommend employee's
dismissal, where temporal proximity of violations reports and reprimands for poor
performance was only basis for employee's claim, and extensive list of rules infractions
and incidents of insubordination supported dismissal following pretermination hearings.
Wagner v Wheeler (1993, CA4 Md) 13 F3d 86.
Stock clerk's claims arising from city's refusal to promote him to warehouse manager of
city finance department are denied summarily, where clerk alleges that denial of
promotion was attributable to city manager and that city manager possesses policymaking
authority for city, because clerk provides no further evidence to rebut city's assertions
that city manager merely went along with committee's recommendation of white
candidate without independent consideration of qualifications of applicants and that
decision to promote white candidate over black stock clerk was not made by one with
policymaking authority for purposes of municipal liability under 42 USCS 1981 and
1983. Jones v City of Elizabeth (1991, ED NC) 840 F Supp 398, affd (CA4 NC) 1993 US
App LEXIS 20918, app dismd sub nom Jones v Johnson (CA4 NC) 7 F3d 224, reported
in full (CA4 NC) 1993 US App LEXIS 23292.
Footnotes
Footnote 42. Zuniga v Kleberg County Hospital (1982, CA5) 692 F2d 986, 30 BNA FEP
Cas 650, 30 CCH EPD 33213, wherein a hospital's claim that a pregnant X-ray
technician was discharged because of the fear of endangering the fetus and exposing
itself to potential liability was not credible, since the hospital could have achieved its
business purpose by granting the plaintiff a leave of absence.
Footnote 43. Williams v Valentec Kisco, Inc. (1992, CA8) 58 BNA FEP Cas 1154, 58
CCH EPD 41444.
Footnote 44. Jennings v Lenox Hill Hospital (1986, SD NY) 42 BNA FEP Cas 555,
wherein an employer's explanation for discharge was shown to be pretextual where an
ADEA plaintiff's discharge was allegedly based on the company's reorganization, but it
preceded the reorganization and a new position was created that corresponded to the
employee's former one.
Cas 1265, 14 CCH EPD 7510, wherein an employer's explanation was demonstrably
pretextual where an employee was discharged due to an alleged decline in business, but
the evidence showed that the number of employees at the plaintiff's former job site
increased shortly after the discharge.
An employer's explanation for terminating a female employee, based on the
nonavailability of her position after her return from maternity leave, was also pretextual
where the employer could have given her an equivalent position or at least assured her of
the next opening for such a position. Garner v Wal-Mart Stores, Inc. (1987, CA11) 807
Footnote 46. McNeil v Economics Laboratory, Inc. (1985, ND Ill) 41 BNA FEP Cas
(US) 95 L Ed 2d 823, 107 S Ct 1983, 43 BNA FEP Cas 1056, 42 CCH EPD 36984,
wherein an employer that immediately offered a terminated sales manager a
commissioned sales position undermined its attempt to demonstrate that the plaintiff had
been fired for behavioral problems, rather than because of his age. Since taking the
offered position would still have made the employer susceptible to losing sales if the
behavioral problem was significant to the employer, the plaintiff could show that age was
a determining factor in his discharge.
However, an ADEA plaintiff's attempt to discredit his employer's explanation for his
discharge by exposing the inaccuracy of his employer's evidence of his sales performance
could only have proved that the employer had made an unwise business decision, and not
that sales performance was a pretext for age discrimination. It was not the court's duty to
determine the validity of the employer's business decision as long as the decision had
been made in good faith. Wilcox v Alamo Group, Inc. (ND Ill) No. 85 C 4595, 12/31/86.
Footnote 47. Castleman v Acme Boot Co. (1992, CA7) 959 F2d 1417, 58 BNA FEP Cas
969, 58 CCH EPD 41480.
Footnote 48. Galbraith v Northern Telecom, Inc. (1991, CA6) 944 F2d 275, 56 BNA FEP
BNA FEP Cas 816.
1084 --Attacking credibility of employer's assertions regarding substandard

performance
View Entire Section
The normal methods used to attack an employer's rationale for a discharge 49 are
equally applicable where the reason given for a termination is based on the employee's
performance. For instance, the employer's articulated reason based on performance may
not be believed because it was not shown to have existed when the decision was made, as
when discharged employees were not informed that their alleged poor performance was
the cause of their discharges until litigation already had begun. 50
To withstand a pretextual challenge, an adequate performance defense to a discrimination
claim must be based on information available to the employer when the decision was
made. Thus, the superior performance of a discharged employee's successor is irrelevant.
51 Furthermore, an employer's unsupported subjective belief that a terminated employee
is not as qualified as others will not help to establish an unrebuttable legitimate reason for
a discharge. 52
In demonstrating that an employer's performance based reason for discharge was a
pretext, the issue is not whether the employer was correct in its determination that the
employee's performance was unsatisfactory, but only whether performance was the real
reason for termination. 53 Thus, mere self-serving statements from an employee
concerning his performance are insufficient to demonstrate that an employer's articulated
performance-related rationale for a termination is pretextual. 54 Nor is proof that a
discharged worker performed a previous job satisfactorily enough to show pretext, even
if the previous job involved the same duties. 55
The strongest demonstration of pretext for a performance based discharge is a showing
that the performance was, in fact, acceptable. 56 Evidence of compliments from the
plaintiff's supervisors on work quality prior to the adverse action, 57 and testimony that
the plaintiff's performance was never criticized 58 are helpful in showing that an
employee's work was not substandard. In addition, documentary or testimonial evidence
of good performance is often persuasive in showing that performance-based reasons for
discharge are pretextual. 59 Conversely, a plaintiff with poor performance evaluations
will find it difficult to show that his performanced-based termination was pretextual. 60
However, even where an employer has documentary evidence of inadequate
performance, such evidence is normally evaluated in the context of other related evidence
about the employee, or in the context of the performance of other employees in
determining whether a disciplinary or discharge action is discriminatory. 61
While a lack of formal, contemporaneous performance records may cast doubt on the
credibility of an employer's subsequent explanation of a discharge for inadequate
performance, such records are not absolutely required. 62 The credibility of employers'
assertions regarding the plaintiff's substandard performance have also been called into
question by subjective performance assessments that could be used as a pretext for
discrimination, although the plaintiff did not introduce evidence showing that he had the
subjective qualities sought by the employer, 63 and by a supervisor's allegedly being told
by higher management to maximize negative material and minimize positive material
when reviewing the performance of older employees. 64
Besides the employer's own evaluations, recommendations by outside consultants may
provide proof of a legitimate nondiscriminatory reason for a discharge. 65 Furthermore,
it is not necessary for an employer to show that an employee's immediate supervisor was
consulted in determining the employee's ability or productivity. 66
Caution: An employer may be barred from introducing evidence concerning

inadequate performance if it has violated the EEOC regulation requiring preservation
of all relevant personnel or employment records. 67
To avoid liability in a mixed-motive discharge case, the employer need only present
objective evidence that the plaintiff's job performance was so unsatisfactory that he
would have been fired absent any racial motivation. Direct evidence that employees who
were not members of the plaintiff's protected group and who received similar
unsatisfactory ratings were fired, is unnecessary. 68
Footnotes
Footnote 49. 1083.
Footnote 50. Graefenhain v Pabst Brewing Co. (1987, CA7) 827 F2d 13, 44 BNA FEP
Cas 180, 43 CCH EPD 37213; Legrand v Trustees of University of Arkansas (1987,
CA8) 821 F2d 478, 44 BNA FEP Cas 60, 43 CCH EPD 37164, cert den (US) 99 L Ed
Footnote 51. Durso v Wanamaker (1985, ED Pa) 38 BNA FEP Cas 1127.
Footnote 52. Dodd v Singer Co. (1987, ND Ga) 669 F Supp 1079, 43 CCH EPD 37265.
Footnote 53. Bossalina v Lever Bros. Co. (1986, DC Md) 47 BNA FEP Cas 1264, 40
CCH EPD 36259, affd without op (CA4) 849 F2d 604, 47 BNA FEP Cas 1360, 47
CCH EPD 38102, holding that it is not sufficient simply to produce evidence to show
that reasonable minds might differ as to the quality of an individual's work. Rather, the
former employee must affirmatively create a question of fact as to whether the employer
discharged him for poor performance.
Footnote 54. Neely v Delta Brick & Tile Co. (1987, CA5) 817 F2d 1224, 43 BNA FEP
Cas 1698, 43 CCH EPD 37175; Smith v Flax (1980, CA4) 618 F2d 1062, 22 BNA FEP
Cas 1202, 22 CCH EPD 30823.
Footnote 55. Kahn v Pesi Cola Bottling Group (1982, ED NY) 547 F Supp 736, 34 BNA
Footnote 56. Chaline v KCOH, Inc. (1982, CA5) 693 F2d 477, 30 BNA FEP Cas 834, 30
CCH EPD 33216; Jones v Trailways Corp. (1979, DC Dist Col) 477 F Supp 642, 20
Cas 1265, 14 CCH EPD 7510; Davis v Metropolitan Dade County (1979, SD Fla) 480
F Supp 679.
Footnote 58. Martinez v El Paso County (1983, CA5) 710 F2d 1102, 32 BNA FEP Cas
747, 32 CCH EPD 33753.
Footnote 59. Gelof v Papineau (DC Del) No. 83-210-CMW, 11/26/86, aff'd in part and
vacated and remanded in part on other grounds (1987, CA3) 829 F2d 452).
Footnote 60. Andre v Bendix Corp. (1986, ND Ind) 42 BNA FEP Cas 483, affd (CA7)
A plaintiff could not rebut documentation of his poor work performance merely by
asserting, without supporting evidence, that the defendant had a reputation for disliking
and discriminating against blacks. Bryant v O'Connor (1988, CA10) 848 F2d 1064, 51
BNA FEP Cas 187.
Employers' assertions regarding substandard performance were also found to be credible

when a plaintiff's poor work record was well documented by other supervisors before her
supervisor suggested that she consider retiring because of her age. Danielson v Lorain
A plaintiff's numerous deficiencies in a supervisory position were the basis for his firing
by the same manager who had hired him six months earlier. Proud v Stone (1991, CA4)
945 F2d 796, 57 CCH EPD 40979.
Footnote 61. Clements v General Acci. Ins. Co. (1987, CA8) 821 F2d 489, 44 BNA FEP
Cas 43, 43 CCH EPD 37193, wherein an employer was not justified in discharging a
marketing representative for inadequate performance, since the employee led the office in
total dollar sales, but was evaluated under a system that failed to reflect his achievements
and only was used in his particular office to target him for discharge. Furthermore, the
written comments on his performance evaluation were inconsistent with his below
average rating and other marketing representatives who had failed to meet their
established goals had not been terminated.
Footnote 62. Cova v Coca-Cola Bottling Co. (1978, CA8) 574 F2d 958, 17 BNA FEP
Cas 448, 16 CCH EPD 8272, amd (CA8) 34 CCH EPD 34380.
Footnote 63. Weldon v Kraft, Inc. (1990, CA3) 896 F2d 793, 52 BNA FEP Cas 355, 29
Footnote 64. Conrad v Chaco Credit Union, Inc. (1992, CA6) 1992 US App LEXIS 1348.
Footnote 65. Edwards v Thomas Jefferson University (ED Pa) No. 85-5508, 4/8/86,
wherein an employer successfully demonstrated that the plaintiff's discharge was
motivated by a legitimate nondiscriminatory purpose where an independent management
consultant had recommended that the plaintiff be replaced and that his department be
reorganized, because of its low productivity.
Footnote 66. Gill v Union Carbide Corp. (1973, ED Tenn) 368 F Supp 364, 7 BNA FEP
Cas 571, 7 CCH EPD 9265.
Footnote 67. EEOC record-keeping requirements are discussed at 1909 et seq.
Footnote 68. Foster v University of Arkansas (1991, CA8) 938 F2d 111, 56 BNA FEP
Cas 512, 56 CCH EPD 40862.
1085 Proving discriminatory intent by circumstantial evidence

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Since most discipline and discharge claims arise under the disparate treatment theory of
discrimination, discriminatory intent must be demonstrated in order for the employee to

prevail. 69 This inference of discrimination at the pretext stage of proof may be shown
through either circumstantial or direct 70 evidence.
Circumstantial or indirect proof of a discriminatory intent at the pretext stage of a
discipline or discharge discrimination cases may take a plethora of forms. Typical
examples of such successful demonstrations of pretext include:
evidence of an employer's discriminatory treatment of other older workers, if the
circumstances were similar; 71
evidence of other age discrimination lawsuits filed against an employer; 72
evidence that the employee was disciplined or discharged on the basis of allegations that
were not properly investigated, verified, or reviewed; 73
evidence that the employer racially discriminated against customers; 74
a showing that the employee did not violate a work rule as alleged, or that nonminority
employees who engaged in similar conduct were not similarly punished. 75
Whether an employee's indirect evidence of discriminatory intent can overcome an
employer's nondiscriminatory explanation depends in large part on the strength of the
evidence supporting the explanation. 76 The timing of the employer's actions relative
to its decisionmaking regarding an employee's termination may also help determine
whether a nondiscriminatory explanation is demonstrated to be a pretextual excuse for
discriminatory intent. 77
1085 ----Proving discriminatory intent by circumstantial evidence
[SUPPLEMENT]
Case authorities:
Circumstantial evidence is admissible to provide basis for drawing inference of
intentional discrimination. Troupe v May Dep't Stores Co. (1994, CA7 Ill) 64 BNA FEP
Cas 512, 64 CCH EPD 42920.
Footnotes
Footnote 69. As to proving intent generally, see 2745 et seq.
Footnote 70. 1087.
Footnote 71. Spulak v K Mart Corp. (1990, CA10) 894 F2d 1150, 51 BNA FEP Cas
1652, 52 CCH EPD 39584.
Footnote 72. Phillip v ANR Freight Systems, Inc. (1991, CA8) 945 F2d 1054, 56 BNA
FEP Cas 1678, 57 CCH EPD 41016, petition for certiorari filed (Jun 5, 1992).
Footnote 73. Williams v Trans World Airlines, Inc. (1981, CA8) 660 F2d 1267, 27 BNA
FEP Cas 487, 27 CCH EPD 32174; EEOC v Riss International Corp. (1981, WD Mo)
525 F Supp 1094, 27 CCH EPD 32372.
Footnote 74. Estes v Dick Smith Ford, Inc. (1988, CA8) 856 F2d 1097, 47 BNA FEP Cas
1472, 47 CCH EPD 38323, 26 Fed Rules Evid Serv 943.
Footnote 75. Green v Armstrong Rubber Co. (1980, CA5) 612 F2d 967, 22 BNA FEP
23 BNA FEP Cas 1668, 24 CCH EPD 31256; Jones v Trailways Corp. (1979, DC Dist
Col) 477 F Supp 642, 20 BNA FEP Cas 1541, 21 CCH EPD 30322.
Footnote 76. Meiri v Dacon (1985, CA2) 759 F2d 989, 37 BNA FEP Cas 756, 36 CCH
EPD 35124, cert den (US) 88 L Ed 2d 74, 106 S Ct 91, 38 BNA FEP Cas 1728, 38
CCH EPD 35535, holding that where an employer produced a "veritable arsenal of
undisputed, documented examples" of the plaintiff's inadequate performance, violations
of work rules, and insubordination, the plaintiff was unable to rebut the employer's
explanation with mere conclusory allegations of prejudicial intent.
Footnote 77. Young v General Foods Corp. (1988, CA11) 840 F2d 825, 46 BNA FEP
Cas 534, 46 CCH EPD 37912, finding no pretext where the employer's offer to let the
plaintiff retire was made after deciding to fire him rather than before. Thus, instead of
indicating discriminatory intent, the offer showed a desire to give the plaintiff an
opportunity to avoid the stigma associated with being fired.
1086 --Comparative circumstantial evidence of discriminatory intent

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Indirect evidence of discriminatory intent in a disparate treatment discriminatory
discharge or discipline case is often presented in the form of comparative evidence, that
is, evidence that others not in the plaintiff's protected group were treated better by the
employer under similar circumstances.
When determining whether a plaintiff is similarly situated with employees whose
treatment is compared to the plaintiff's, what is relevant is that two employees are
involved in, or accused of, the same offense and are disciplined in different ways. The
emphasis should not be on formal differences in job duties, although differences in job
status and skill may well have an impact on the second phase of proof, in which the
employer must produce a legitimate reason for different treatment. 78
However, such evidence may fail to show that an employer's explanation is pretextual
when the persons being compared have a different employment status, such as when a
probationary employee was compared to a permanent employee, 79 or when a
terminated plaintiff was compared to a current employee who had been rehired after
being discharged for the same offense. 80 Comparative evidence of pretext may also fail
to demonstrate discriminatory intent where an employer's expectations are reasonably

higher for the terminated worker. For example, this was the case when:
an experienced plaintiff was compared to a new and inexperienced worker; 81
the same conduct was more egregious coming from the plaintiff, because she was in a
more "sensitive" position than the workers who formed the basis of the comparison; 82
a white employee was permitted to take early retirement after breaking company rules
while a black employee was discharged because he was not eligible for early retirement.
83
Furthermore, when the employer is unaware of the fact that different treatment has been
given to similarly situated individuals, its ignorance may negate an inference that
discrimination motivated the different treatment. 84 Unequal treatment of
similarly-situated employees also did not raise an inference of discriminatory intent
where:
an area manager was discharged for failing to uncover employee wrongdoing at his
office, even though a younger area manager was not discharged, since a third manager
older than the plaintiff was retained despite the fact that he was equally guilty of
mismanagement; 85
white nurses who made serious medical errors but were not immediately discharged like
the plaintiff was, had either drug or mental problems causing the mistakes for which they
were eventually terminated, and unlike the plaintiff, they did not attempt to avoid
responsibility for their mistakes by falsifying records. 86
Examples of where comparative evidence has failed to show that an employer's actions
were discriminatory, because the conduct as opposed to the individuals being compared
was not similar, are located in the discussion of the various employer reasons for
discipline and discharge. 87
However, clear comparative evidence of dissimilar treatment by an employer may be
sufficient to demonstrate that a discriminatory animus was involved in a discharge, even
if there was otherwise a "good cause" reason for the adverse action. For instance,
plaintiffs successfully demonstrated pretext when:
a female police officer had not been retained because she was psychiatrically unsuited
to perform full police duty, while male officers with much more serious problems were
treated more leniently; 88
a black employee had been discharged for drug and alcohol use on the job, while white
workers known to use drugs or alcohol on the job had been retained; 89
a black employee had been discharged for inability to grasp the basic skills needed for
her computer operator position, while white employees with performance problems did
not have detailed records kept on their errors and had been given opportunities to transfer
to other jobs in lieu of termination; 90
a female employee, who was alleged to have engaged in a sexual affair with one of the
individual defendants was terminated, ostensibly because her temporary appointment had
ended, while the male employee, who also was alleged to have been a participant in the
affair, remained employed, had no disciplinary action taken against him, and had
received at least one raise since the plaintiff's termination. 91
1086 --Comparative circumstantial evidence of discriminatory intent
[SUPPLEMENT]
Case authorities:
Comparative evidence is generally admissible in Title VII discrimination suit; thus,
plaintiff, who claimed that, contrary to employer's contention that she was fired for
unsatisfactory work, she was discriminatorily discharged on basis of her sex and her
pregnancy, and who alleged that similarly situated men who had received lower review
ratings and more severe criticisms than she received had not been discharged, was
entitled to use comparative evidence to prove that employer's reason for terminating her
was pretextual. Lipow v Banque Paribas (1995, SD NY) 67 BNA FEP Cas 599.
In order to be probative of discrimination against individual Title VII plaintiff,
comparative evidence must relate to employees who are similarly situated to plaintiff.
Rifkinson v CBS (1995, SD NY) 69 BNA FEP Cas 98.
Footnotes
Footnote 78. Pearson v Macon-Bibb County Hosp. Authority (1992, CA11) 952 F2d
1274, 57 BNA FEP Cas 1518, 58 CCH EPD 41313, a case in which white nurses were
disciplined less severely than a black nurse for neglecting contaminated instruments, but
all of the nurses were responsible for the cleanliness of the operating room, and the black
nurse's higher employment position in itself should not affect her establishment of a
prima facie case.
A probationary police officer raised a triable issue of sex discrimination where she
presented evidence that after she accused another police officer of raping her, she was
disciplined immediately and was subsequently fired for reasons arising out of her report
of the assault, while the tenured accused officer was not even questioned about the
incident until eight months later and received no disciplinary action. While the
difference in the employment status of the actors could be considered in evaluating the
discrimination claim, it should not be dispositive. Sorlucco v New York City Police
Dept. (1989, CA2) 888 F2d 4, 54 BNA FEP Cas 398, 51 CCH EPD 39417.
Footnote 79. Cooper v City of North Olmstad (CA6) No. 85-3213, 7/16/86.
Footnote 80. Pearson v Borden Metal Products Co. (1977, ND Ala) 434 F Supp 840, 20
BNA FEP Cas 263.
Footnote 81. Box v A & P Tea Co. (1985, CA7) 772 F2d 1372, 38 BNA FEP Cas 1509,
38 CCH EPD 35500, cert den (US) 92 L Ed 2d 724, 106 S Ct 3311, 41 BNA FEP Cas
271, 40 CCH EPD 36206.
Footnote 82. Meyer v California & Hawaiian Sugar Co. (1981, CA9) 662 F2d 637, 27

Footnote 83. Fitch v R.J. Reynolds Tobacco Co. (1987, SD NY) 675 F Supp 133, 46
BNA FEP Cas 1872.
Footnote 84. Mechnig v Sears, Roebuck & Co. (1988, CA7) 864 F2d 1359, 48 BNA FEP
Cas 1218, 48 CCH EPD 38555.
Footnote 85. Mundy v Household Finance Corp. (1989, CA9) 885 F2d 542, 50 BNA FEP
Cas 1303, 51 CCH EPD 39315, 117 CCH LC 56452.
Footnote 86. Wilson v Roanoke Memorial Hosp. (1991, CA4) 1991 US App LEXIS
12914.
Footnote 87. 1061-1072.
Failures of comparative evidence to show discrimination because of differences in the
stages of a progressive disciplinary system, or the varying punishments established under
such systems, are discussed at 1057-1060.
Footnote 88. Lenihan v New York (1985, SD NY) 636 F Supp 998, 38 CCH EPD
35753.
Footnote 89. Gates v ITT Continental Baking Co. (1984, ND Ohio) 581 F Supp 204, 37
(1985, ND Ind) 612 F Supp 1105, 43 BNA FEP Cas 518, 39 CCH EPD 36004.
Footnote 91. Oldfather v Ohio Dept. of Transp. (1986, SD Ohio) 653 F Supp 1167.
1087 Direct evidence of discriminatory animus

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Discriminatory intent in discharge cases can be proved in the pretext stage of such cases
by either circumstantial 92 or direct evidence. 93 Direct evidence that discriminatory
animus was involved in a disciplinary action is usually presented by proving that
derogatory comments, such as racial slurs, were made by the supervisor at the time of the
action, 94 or that, prior to termination, a supervisor displayed discriminatory hostility
toward the employee. 95
In addition, evidence of discriminatory tendencies on the
part of company employees other than the individual who was responsible for the
discharge may be relevant. A court is not restricted to evaluating only the facts
indicating the motivations of the specific individual responsible for the alleged
discriminatory discharge. 96
In deciding whether suspicious employer comments are discriminatory or not, courts may
give less weight to ambiguous remarks capable of more than one meaning. For example,
no discriminatory animus was found where an employer's investigator referred to a black
plaintiff as "you people," but had never communicated the plaintiff's race to the officials
responsible for the decision to terminate the plaintiff, and these officials thought the
investigator was referring to military people. 97 Similarly, an employer's comment that
he was building a "team for the future" did not raise an inference of age discrimination,
since it was not equivalent to a statement that only youthful employees were desired. 98
Likewise, ambiguous remarks believed to be evidence of discrimination may actually
constitute evidence of a personality clash 99 or insubordination 1 that justifies the
discipline or discharge, especially if the speaker also belongs to the same protected group
as the person who was discharged. Thus, a black employee's discharge, recommended by
his black supervisor, was more likely based on personal rather than racial animus, even
though it is not impossible to discriminate on the basis of race against a member of the
same race, and the recommendation had been reviewed by the black supervisor's white
supervisors. 2
Comments attempting to overcome an employer's nondiscriminatory rationale for a
discharge in the form of direct evidence of discrimination do not have to be directed
specifically toward the plaintiff to show discriminatory animus. For instance, direct
evidence of discrimination was established where a supervisor's statements, made several
years previously, when he refused to consider hiring a man in his 50's for a completely
different position, nevertheless, demonstrated a general inclination to discriminate on the
basis of age. 3
1087 ----Direct evidence of discriminatory animus [SUPPLEMENT]
Case authorities:
A female police officer failed to make a showing of discriminatory intent necessary to
overcome a qualified immunity defense in her 42 U.S.C. 1983 action against a city and
police department personnel based upon equal protection where she failed to present any
specific evidence, either direct or circumstantial, that defendants' failure to promote or
transfer her was motivated by an improper desire to discriminate against her because of
her gender. Morrison-Tiffin v Hampton (1995) 117 NC App 494, 451 SE2d 650, app
dismd, review den 339 NC 739, 454 SE2d 654.
Footnotes
Footnote 92. 1085.
Footnote 93. Nix v WLCY Radio/Rahall Communications (1984, CA11) 738 F2d 1181,
21 CCH EPD 30457.
Footnote 95. Alexander v Aero Lodge No. 735, etc. (1977, CA6) 565 F2d 1364, 15 BNA
2849, 17 BNA FEP Cas 897, 16 CCH EPD 8315A; EEOC Compliance Manual,
612.4(b).
Footnote 96. Bernstein v Consolidated Foods Corp. (1984, ND Ill) 622 F Supp 1096, 36
Footnote 97. De Horney v Bank of America Nat. Trust & Sav. Asso. (1985, CA9) 777
F2d 440, 39 BNA FEP Cas 723.
Footnote 98. Lucas v Dover Corp., Norris Div. (1988, CA10) 857 F2d 1397, 47 BNA
FEP Cas 1713, 47 CCH EPD 38331.
Footnote 99. 1065.
Footnote 1. 1064.
Footnote 2. Hayes v U. S. Government Printing Office (1984, DC Dist Col) 36 CCH EPD
35035.
Footnote 3. Clements v General Acci. Ins. Co. (1987, CA8) 821 F2d 489, 44 BNA FEP
Cas 43, 43 CCH EPD 37193.
d. Statistical Cases and Evidence [1088-1090]
1088 Statistical proof of a prima facie case

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Statistics are frequently used to establish prima facie cases in pattern and practice class
action claims of discriminatory discipline by demonstrating that a group protected by
Title VII is treated less favorably by the employer with regard to either the frequency 4
or severity 5 of the discipline imposed. A plaintiff in such a class action can establish a
statistical prima facie case through evidence that rules out chance as the cause of a
disparity in termination rates. 6
Statistical evidence is also an appropriate method for establishing disparate impact. 7 For
instance, an ADEA plaintiff made out a prima facie case of discriminatory discharge with
statistics showing that the employer's decision to terminate employees for alleged
budgetary reasons had a disparate impact on its older employees. The average age of the
terminated employees was 50, while the average age of retained employees was 36.4. 8
Statistical data are not generally helpful in individual disparate treatment discharge cases
since the reasons for discharge are normally unique to the terminated employee. 9
1088 ----Statistical proof of a prima facie case [SUPPLEMENT]

Case authorities:
If Title VII plaintiff offers statistical comparison of upper level positions with relevant
labor pool without expert testimony as to methodology or relevance to plaintiff's claim,
judge may be justified in excluding evidence. Carter v Ball (1994, CA4 Md) 33 F3d 450,
Mere absence of minority employees in upper level positions does not suffice to prove
prima facie case of discrimination without statistical comparison to relevant labor pool.
Carter v Ball (1994, CA4 Md) 33 F3d 450, 65 BNA FEP Cas 1414.
In Title VII action which alleged that plaintiff police officer was discriminated against on
basis of his race while employed as city police officer, plaintiff's statistics reflected
improper comparison of data, where plaintiff compared racial composition of police force
with all residents of city; proper comparison was between racial composition of police
force and racial composition of population of city qualified to serve as police officers.
Cross v City of Ontario (1995, CD Cal) 67 BNA FEP Cas 725.
Footnotes
Footnote 4. Bolton v Murray Envelope Corp. (1974, CA5) 493 F2d 191, 7 BNA FEP Cas
1164, 7 CCH EPD 9289; Ward v Westland Plastics, Inc. (1980, CA9) 651 F2d 1266, 23
Footnote 5. Chisholm v United States Postal Service (1980, WD NC) 516 F Supp 810, 25
BNA FEP Cas 1778, 24 CCH EPD 31326, affd in part and vacated in part on other
grounds (CA4) 665 F2d 482, 27 BNA FEP Cas 425, 27 CCH EPD 32250.
Footnote 6. Oliphant v Charlotte Memorial Hospital (1985, CA4) 38 CCH EPD 35646,
cert den (US) 90 L Ed 2d 186, 106 S Ct 1640, 39 CCH EPD 36081.
Footnote 7. Blum v Witco Chemical Corp. (1987, CA3) 829 F2d 367, 8 EBC 2600, 46
Statistical proof of a disparate impact prima facie case is discussed in general at 2699
et seq., and with respect to the imposition of particular job requirements at 316 et seq.
Footnote 8. Gelof v Papineau (1986, DC Del) 648 F Supp 912, 42 BNA FEP Cas 1299,
42 CCH EPD 36865, affd in part and vacated in part on other grounds (CA3) 829 F2d
1240, affd (CA4) 7 BNA FEP Cas 666, 7 CCH EPD 9251.
1089 Defensive use of statistics

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An employer may present statistical evidence defensively in a disparate treatment case to
demonstrate that even if discipline has been inconsistently applied, there was no pattern
of treatment which could be attributable to an unlawful motivation, such as animus based
on race. 10 For example, statistical evidence was used to rebut a plaintiff's claim of
unlawful discharge based on speculation that the employer was guilty of a nationwide
pattern of racial discrimination. The employer, an automobile manufacturer, showed that
it had an increasing number of dealers with black operators and was increasing its
investment in black operated dealerships. 11
An employer can also use statistics to attack a plaintiff's statistical prima facie case of
disparate treatment class-wide discrimination in terminations. However, the employer
must do more than simply claim that the terminations were for "cause." It must present
evidence that the statistical analysis used by plaintiffs lacks statistical significance, or
that each discharge was for cause, or that the cause of the disparity in the termination
rates was not due to a discriminatory motivation. 12
Footnotes
Footnote 10. Osborne v Cleland (1980, CA8) 620 F2d 195, 22 BNA FEP Cas 1292, 22
CCH EPD 30882.
Defensive use of statistics is discussed in general at 2699 et seq., and with respect to
the imposition of particular job requirements at 316 et seq.
Footnote 11. Quarles v General Motors Corp. (Motors Holding Div.) (1984, WD NY)
597 F Supp 1037, affd (CA2) 758 F2d 839.
Footnote 12. Oliphant v Charlotte Memorial Hospital (1985, CA4) 33 CCH EPD
35646.
1090 Statistical evidence of discriminatory intent

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In some disparate treatment cases statistics may be used to demonstrate discriminatory
intent circumstantially. 13
Observation: Proving discriminatory intent with statistical evidence arises only

when a disparate treatment analysis has been used, because intent is not an element in
disparate impact claims. If an employee's statistical proof is strong enough to present a
disparate impact prima facie case, it may succeed in establishing discrimination unless
the employer successfully attacks the plaintiff's statistics or presents sufficient proof of
the business necessity for its actions. 14
Statistical analyses offered to prove discriminatory intent will succeed only if the
examples being counted are comparable, the samples are sufficiently broad, and
deviations from the nondiscriminatory norm are statistically significant. Thus, no
discriminatory intent was proven where:
a terminated employee used other discharges in his statistical analysis that were not
sufficiently comparable to the one at issue, and the sample was too small to be
statistically significant; 15
. . . a black employee discharged for fighting and tardiness produced records of 56
personnel actions involving fights resulting in the termination of four blacks and no
whites, but the employer's statistical expert effectively countered any inferences of
discrimination by showing a statistical probability that pure chance was a more likely
explanation for the discharges than discrimination; 16
statistics showing only that an employer's workforce has undergone an overall reduction
in age illustrated no more than typical courses of employment histories, because older
employees often leave the workforce for reasons unrelated to unlawful discrimination and
are often replaced by younger employees. 17
Furthermore, statistical evidence suggesting a discriminatory pattern in other
employment practices, such as hiring or job assignment, may be probative of similar
discriminatory intent in discharge or demotion practices. 18
Footnotes
Footnote 13. Lim v Citizens Sav. & Loan Asso. (1976, ND Cal) 430 F Supp 802, 15
BNA FEP Cas 113, 13 CCH EPD 11554; Jones v Trailways Corp. (1979, DC Dist Col)
Footnote 14. Statistical proof using disparate impact analysis is discussed in general at
2699 et seq., and with respect to the imposition of particular job requirements at 316
et seq.
Footnote 15. Hagans v Budd Co. (1984, ED Pa) 597 F Supp 89, 39 BNA FEP Cas 802.
Footnote 16. Hayes v U.S. Government Printing Office (1984, DC Dist Col) 36 CCH
EPD 35035.
Footnote 17. Brown v M & M/Mars (1989, CA7) 883 F2d 505, 50 BNA FEP Cas 497, 51
CCH EPD 39328.
Footnote 18. Jones v Trailways Corp. (1979, DC Dist Col) 477 F Supp 642, 20 BNA FEP
Cas 1541, 21 CCH EPD 30322.
3. Constructive Discharge or Demotion [1091-1099]
1091 What is constructive discharge

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When an employer causes an employee's working conditions to be so difficult or
unpleasant that a reasonable person would feel compelled to resign, 19 in other words,
when working conditions are objectively "intolerable" 20 because of "aggravating
factors", 21 an employee who quits is considered to have been "constructively
discharged" and will be treated for Title VII purposes as if the employer fired him. 22
The constructive discharge concept will also be recognized in ADEA cases, 23 and
employees have demonstrated that they suffered intolerable working conditions that
supported claims of constructive discharge under 42 USCS 1983 24 and 1981. 25
Whether a case arises under Title VII or the ADEA does not affect the standards applied
to determine whether a constructive discharge may be found. 26
Forced retirement can also constitute a constructive discharge. However, an employee
who voluntarily accepted an offer of early retirement, rather than run the risk of demotion
or termination which might cause her to retire, was not constructively discharged. 27
Furthermore, the constructive discharge theory may be applied in instances involving
collegial bodies, such as partnerships, where a career is effectively ended despite the
absence of otherwise "intolerable working conditions." For example, a female
candidate's rejection for partnership in an accounting firm was in effect a discharge, since
the partnership decision, combined with a failure to renominate the candidate for
reconsideration, was reasonably viewed as "career-ending." The customary practice for
those not selected for partnership was resignation. 28
Observation: This more lenient approach in comparison to that followed by other

appellate courts requiring "intolerable working conditions" and action by an employer
to motivate a discharge was warranted due to the special circumstances involved in this
case. The circumstances could also arise in comparable situations where an "up or out"
philosophy is used, such as in tenure 29 or law firm partnership decisions. 30
1091 ----What is constructive discharge [SUPPLEMENT]
Practice Aids: Deconstructing constructive discharge: The misapplication of
constructive discharge standards in employment discrimination remedies. 71 Notre
Dame LR 1:39 (1995).
Corporate downsizingor age discrimination? 28 Trial 26 (July 1992).
Enough is enough: Per se constructive discharge for victims of sexually hostile work
environments under Title VII, 70 Wash LR 2:541 (1995).
33 Am Jur Proof of Facts 3d 235, Constructive DischargeEmployee's Resignation Due
to Intolerable Working Conditions as Tantamount to Discharge.
Case authorities:
Legal standard to be applied in determining whether constructive discharge occurred is
objective, with inquiry focused on reasonable state of mind of putative discriminatee.
Greenberg v Union Camp Corp. (1995, CA1 Mass) 48 F3d 22, 67 BNA FEP Cas 120,
129 CCH LC 57842.
Single inquiry by employer as to employee's plans for retirement does not necessarily
show animosity towards age, as employer may legitimately inquire about employee's
plans so that it can prepare to meet its hiring needs; however, repeated and/or coercive
inquiries can clearly give rise to reasonable inference of anti-age bias, and lend support to
finding of constructive discharge. Greenberg v Union Camp Corp. (1995, CA1 Mass) 48
F3d 22, 67 BNA FEP Cas 120, 129 CCH LC 57842.
Where employer, after merger with another company, gave ADEA plaintiff every
indication that replacement job would not be found and that his position on transition
team was only temporary, there was no incentive for plaintiff to remain, and reasonable
person may have felt compelled to search elsewhere for employment. Restivo v SKF
USA (1994, ED Pa) 856 F Supp 236, 65 BNA FEP Cas 277.
Employee was constructively discharged when employer informed employee that if he
resigned before certain date he would be eligible to receive health care benefits, but that
if he continued to work until his position was officially terminated, he would receive no
health care benefits for his retirement. Blistein v St. John's College (1994, DC Md) 860 F
Supp 256.
Federal employee's pre-retirement age discrimination claims were not rendered moot by
his retirement, because employee, who had retired in good standing and could be restored
to his job, alleged constructive discharge, and sought monetary damages. Ellzey v Espy
(1995, ED La) 66 BNA FEP Cas 1547.
There can be no constructive discharge liability under Age Discrimination in
Employment Act (29 USCS 621 et seq.) for announcing in advance retirement
benefits reduction permissible under ERISA, and also offering older employees early
retirement option not available to younger employees. Houghton v SIPCO, Inc. (1994,
CA8 Iowa) 38 F3d 953, 18 EBC 2195, 66 BNA FEP Cas 97, reh den (1994, CA8 Iowa)
Mere offer of early retirement does not establish constructive discharge; such offer
constitutes constructive discharge only when offer is made under terms and conditions
where employee would be worse off whether or not he or she accepted offer (i.e. when
choice is essentially either early retirement or continuing to work under intolerable
conditions). Smith v World Ins. Co. (1994, CA8 Neb) 38 F3d 1456, 66 BNA FEP Cas 13,
clarified, remanded (1994, CA8 Neb) 1994 US App LEXIS 33067 and reh, en banc, den
(1994, CA8 Neb) 1994 US App LEXIS 33076.
Employee who is not formally discharged from employment may still be constructively
discharged if employee was forced to quit due to race-based, intolerable working
conditions. Bolden v PRC Inc. (1994, CA10 Kan) 43 F3d 545.
Essence of constructive discharge claim is that employee is subjected to such intolerable
working conditions that employee has no choice but to quit. Hulsey v Kmart, Inc. (1994,
Constructive discharge occurs when employer, by its illegal discriminatory acts, has
made working conditions so difficult that reasonable person in plaintiff's position would
feel compelled to resign; employer's subjective intent to force employee into quitting is
irrelevant, and it is sufficient that employer maintained or allowed working conditions
intolerable to employee. Bolden v PRC, Inc. (1993, DC Kan) 62 BNA FEP Cas 1236.
Constructive discharge occurs where employer creates or tolerates discriminatory
working conditions that would drive reasonable person to resign. Gold Coast Restaurant
Corp. v NLRB (1993, App DC) 995 F2d 257, 143 BNA LRRM 2505, 125 CCH LC
10733.
Footnotes
Footnote 19. Bourque v Powell Electrical Mfg. Co. (1980, CA5) 617 F2d 61, 22 BNA
FEP Cas 1191, 23 CCH EPD 30891.
Practice References 7 Am Jur POF2d 87, Forced resignation.
Footnote 20. Young v Southwestern Sav. & Loan Asso. (1975, CA5) 509 F2d 140, 10
Footnote 21. Clark v Marsh (1981) 214 App DC 350, 665 F2d 1168, 26 BNA FEP Cas
1156, 26 CCH EPD 32082.
Footnote 22. EEOC Dec No. 84-1 (1983), 33 BNA FEP Cas 1887, CCH EEOC Dec
6839; EEOC Compliance Manual, 612.9(a).
Footnote 23. Pena v Brattleboro Retreat (1983, CA2) 702 F2d 322, 31 BNA FEP Cas
198, 31 CCH EPD 33416.
Footnote 24. Service v Board of Public Utilities (DC Kan) Nos. 83-2006, 83-2207,
83-2208, 83-2209, 4/9/86.
Footnote 25. Montgomery v Atlanta Family Restaurants, Inc. (1990, ND Ga) 1990 US
Dist LEXIS 16715; Carroll v Elliott Personnel Services, Inc. (1989, DC Md) 51 BNA
FEP Cas 1173, 52 CCH EPD 39508.
Footnote 26. Miller v Illinois (1988, ND Ill) 681 F Supp 538, 46 BNA FEP Cas 453.
Footnote 27. Anderson v Northwestern Nat. Life Ins. Co. (1992, Minn App) 480 NW2d
363.
Forms: AffidavitIn support of motion for summary judgmentBy defendant Board

memberDischarge not constructive where plaintiff quit voluntarily [29 USCS 621
et seq; FRCP 56]. 12 Federal Procedural Forms, L Ed, Job Discrimination 45:318.
Footnote 28. Hopkins v Price Waterhouse (1987) 263 App DC 321, 825 F2d 458, 44
BNA FEP Cas 825, 43 CCH EPD 37230, reversed and remanded on other grounds
(1989) 490 US 228, 104 L Ed 2d 268, 109 S Ct 17775, 49 BNA FEP Cas 954, 49 CCH
EPD 38936.
1092 What is constructive demotion

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A theory of "constructive demotion" has been recognized as a logical extension of the
constructive discharge concept. The constructive demotion theory is only possible where
an employer has made conditions so unbearable that a reasonable person in the
employee's place would have felt compelled to accept a demotion, rather than remaining
in his current position or resigning. 31 Thus, constructive demotion could not be shown
where black and Hispanic insurance sales managers claimed that they were forced to
demote themselves because their employer refused to hire black insurance agents.
Discrimination in the selection of agents would not compel a reasonable person to accept
a demotion that would do nothing to remedy the discrimination. 32
1092 ----What is constructive demotion [SUPPLEMENT]
Practice Aids: 33 Am Jur Proof of Facts 3d 235, Constructive DischargeEmployee's
Resignation Due to Intolerable Working Conditions as Tantamount to Discharge.
Case authorities:
Transferred government worker states no viable 1983 claim against state agency, where
he claims he was assured of new merit system classification following high evaluations
but then was transferred to another division, along with group majority of whom were
more than 40 years old, and replaced by younger person, because (1) Title VII (42 USCS
2000e et seq.) and Equal Protection Clause do not prohibit age discrimination, and (2)
transfer to comparable position, although outside his area of expertise, is not
"constructive demotion" or violative of his rights under state merit system or Due Process
Clause. Brogdon v Alabama Dep't of Economic & Community Affairs (1994, MD Ala)
864 F Supp 1161, 66 BNA FEP Cas 325.
Footnotes
Footnote 31. Dowling v Prudential Ins. Co. (1988, SD NY) 45 CCH EPD 37702;
Wilson v Firestone Tire & Rubber Co. (1991, CA6) 932 F2d 510, 56 CCH EPD 40858.
Footnote 32. Dowling v Prudential Ins. Co. (1988, SD NY) 45 CCH EPD 37702.
1093 Proving constructive discharge

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To make a case of unlawful constructive discharge, a plaintiff in a job discrimination case
must show by a preponderance of the evidence that he was forced to quit as a result of
intolerable working conditions imposed by the employer, who was motivated by racial or
other unlawful bias. 33
At least three circuits also require proof that the intent of
the employer's actions was to force the employee to quit before constructive discharge
can be established. 34 In a circuit that requires proof that the employer intended to
force the employee to quit, the necessary intent was established where the plaintiff
showed that a reasonable employer would have foreseen that she would resign rather than
be forced to work under the supervisor who was sexually harassing her, without being
told if or when the supervisor would be replaced. 35
In contrast, the Fifth Circuit has held that proof of the employer's intent to force the
employee to resign by imposing intolerable working conditions is not required. 36
The Fifth Circuit's test for constructive discharge has been adopted by the:
Third Circuit. 37
Seventh Circuit. 38
Ninth Circuit. 39
Tenth Circuit. 40
a district court in the D.C. Circuit. 41
In the Eighth Circuit, something like constructive discharge also occurs when an
employer's words or actions indicate that the employment relationship is over. The proof
requirements of an "explicit discharge" which has occurred "in essence" are less stringent
than those of a constructive discharge, but the result for the plaintiff is much the same. 42
Observation: The Eighth Circuit's idea that an explicit discharge can "in essence"
occur creates a middle ground between an explicit discharge and a constructive
discharge. The principal difference between an explicit discharge and an explicit

discharge in essence seems to be that the latter can be based on objective facts and does
not require the express termination of an employee. The principal difference between
an explicit discharge "in essence" and a constructive discharge appears to be that proof
of the employer's intent to cause the employee to resign is not required to establish that
an explicit discharge in essence has occurred.
1093 ----Proving constructive discharge [SUPPLEMENT]
Case authorities:
Title VII plaintiff failed to raise triable issue in regard to claim for constructive
discharge, where evidence did not permit rational trier of fact to infer that employer
deliberately created working conditions that were so difficult or unpleasant that
reasonable person in plaintiff's shoes would have felt compelled to resign; thus,
defendant employer's motion for summary judgment was granted. Dalisay v Neville
Lewis & Assocs. (1994, SD NY) 66 BNA FEP Cas 1246.
District court did not abuse its discretion in granting employer's motion for new trial on
issue of constructive discharge, despite fact that there was evidence that employer may
have treated Title VII plaintiff unfairly, because there was scant evidence that such
treatment was because plaintiff was woman. Sheridan v E. I. duPont de Nemours & Co.
(1996, CA3 Del) 74 F3d 1439, 69 BNA FEP Cas 1705, 67 CCH EPD 43868, vacated,
reh, en banc, gr (1996, CA3) 70 BNA FEP Cas 98.
When using objective test to determine whether employee was constructively discharged
from employment, court asks whether conduct complained of would have foreseeable
result that working conditions would be so unpleasant or difficult that reasonable person
in employee's shoes would resign. Battaglio v General Elec. Co. (1995, ED Pa) 66 BNA
FEP Cas 1509, 2 BNA WH Cas 2d 975.
In order to prove deliberateness of employer's action, with respect to claim of
constructive discharge, plaintiff employee must prove that reasonable person in plaintiff's
position would have felt compelled to resign, and that actions complained of were
intended by employer as effort to force employee to quit. Martin v Cavalier Hotel Corp.
(1995, CA4 Va) 48 F3d 1343, 67 BNA FEP Cas 300.
Evidence was sufficient to demonstrate that plaintiff was constructively discharged,
where plaintiff testified that supervisor had threatened to "turn the screws" and "build a
record" against him if he did not resign. Smith v World Ins. Co. (1994, CA8 Neb) 66
BNA FEP Cas 13, clarified, remanded (1994, CA8 Neb) 1994 US App LEXIS 33067 and
reh, en banc, den (1994, CA8 Neb) 1994 US App LEXIS 33076.
Title VII claimant bears burden of proving she was constructively discharged by
preponderance of credible evidence; mere uncontroverted evidence, if not credible, is
insufficient. Winsor v Hinckley Dodge (1996, CA10 Utah) 79 F3d 996, 70 BNA FEP Cas
611.
To meet her burden of proving that she was constructively discharged as result of sexual
harassment to which she was subjected, Title VII plaintiff was required to show, by
preponderance of credible evidence, that she was forced to quit due to gender-based
intolerable working conditions. Winsor v Hinckley Dodge (1996, CA10 Utah) 79 F3d
996, 70 BNA FEP Cas 611.
Title VII claimant bears burden of proving she was constructively discharged by
preponderance of credible evidence; mere uncontroverted evidence, if not credible, is
insufficient. Winsor v Hinckley Dodge (1996, CA10 Utah) 79 F3d 996, 70 BNA FEP Cas
611.
Title VII claimant, who alleges that she was constructively discharged as result of sexual
harassment to which she was subjected, bears burden of proving that she was
constructively discharged by preponderance of credible evidence; mere uncontroverted
evidence, if not credible, is insufficient. Winsor v Hinckley Dodge (1996, CA10 Utah) 79
Claim of constructive discharge requires proof that employee was subjected to intolerable
working conditions such that any reasonable person would be compelled to quit; thus,
employer was entitled to summary judgment on Title VII plaintiff's constructive
discharge claim where, in her response brief to summary judgment motion, plaintiff
merely repeated her complaint allegations that she should have been granted higher
salary based on male employees' salaries, and did not even attempt to argue that
conditions of her employment were so intolerable that she had no option but to quit.
Spiers v McNeil Real Estate Management (1994, DC Kan) 65 BNA FEP Cas 1446.
Where employer was found to have discriminated against female employee in violation
of Wisconsin Fair Employment Act when employer eliminated employee's position while
creating similar position without offered it to plaintiff and subsequently offering plaintiff
lower position, employee was not entitled to award of reinstatement and back pay as
employee failed to show that position she sought and position offered were so different
that employer's action constituted failure to hire rather than failure to promote thus
application of constructive discharge doctrine required employee to show actual or
constructive discharge before she could be entitledto reinstatement and back pay and
employee's voluntary resignation terminated accrual of back pay and employer's
obligation to reinstate employee (Stats 111.39(4)(c)). Marten Transp., Ltd. v
Department of Indus., Labor & Human Relations (1993) 176 Wis 2d 1012, 501 NW2d
391, 62 CCH EPD 42484.
In order to establish constructive discharge, Title VII plaintiff must show that employer
knowingly permitted conditions of discrimination in employment so intolerable that
reasonable person subject to them would resign. Aman v Cort Furniture Rental Corp.
(1996, CA3 NJ) 85 F3d 1074, 70 BNA FEP Cas 1614.
In order to recover under constructive discharge theory of discrimination, Title VII
plaintiff must demonstrate first that he was, in fact, constructively discharged (i.e. that
defendant made working conditions so intolerable as to force reasonable employee to
leave); once plaintiff has shown that constructive discharge occurred, he must prove that
he was constructively discharged because of his membership in protected class. Vitug v
Multistate Tax Comm'n (1996, CA7 Ill) 88 F3d 506.
Footnotes
Footnote 33. Brown v Eckerd Drugs, Inc. (1981, CA4) 663 F2d 1268, 27 BNA FEP Cas
137, 27 CCH EPD 32200, vacated and remanded without op 457 US 1128, 73 L Ed 2d
1345, 102 S Ct 2952, 28 BNA FEP Cas 1840, 29 CCH EPD 32822, reaffirmed on
remand (WD NC) 564 F Supp 1440, 36 BNA FEP Cas 1543, 38 CCH EPD 35603;
Saltzman v Fullerton Metals Co. (1981, CA7) 661 F2d 647, 26 BNA FEP Cas 1659, 27
CCH EPD 32185.
Annotation: Circumstances which warrant finding of constructive discharge in cases
under Age Discrimination in Employment Act (29 USCS 621 et seq.), 93 ALR Fed
10.
Circumstances in Title VII employment discrimination cases (42 USCS 2000e et
seq.) which warrant finding of "constructive discharge" of discriminatee who resigns
employment, 55 ALR Fed 418.
Forms: Allegations in complaintRacial discrimination by employerConstructive
dischargeFor opposition to unlawful practices and participation in investigation
proceeding, or hearing [42 USCS 2000e-2(a), 2000e-3(a); FRCP 8(a)]. 12 Federal
Footnote 34. Fourth CircuitBristow v Daily Press, Inc. (1985, CA4) 770 F2d 1251, 38
Sixth CircuitYates v Avco Corp. (1987, CA6) 819 F2d 630, 43 BNA FEP Cas 1595, 43
CCH EPD 37086.
Eighth CircuitThompson v McDonnell Douglas Corp. (1977, CA8) 552 F2d 220, 14
Footnote 35. Wheeler v Southland Corp. (1989, CA6) 875 F2d 1246, 50 BNA FEP Cas
86, 50 CCH EPD 39109.
Forms: Complaint, petition, or declarationDiscrimination in employment based upon
sexDamages for discrimination, unlawful discharge and fraud. 5A Am Jur Pl & Pr
Footnote 36. Bourque v Powell Electrical Mfg. Co. (1980, CA5) 617 F2d 61, 22 BNA
FEP Cas 1191, 23 CCH EPD 30891.
Footnote 37. Goss v Exxon Office Systems Co. (1984, CA3) 747 F2d 885, 36 BNA FEP
Cas 344, 35 CCH EPD 34768.
1499, 54 CCH EPD 40245.
Footnote 39. Satterwhite v Smith (1984, CA9) 744 F2d 1380, 36 BNA FEP Cas 148, 36
CCH EPD 35189.
Footnote 40. Derr v. Gulf Oil Corp. (1986, CA10) 796 F2d 340, 41 BNA FEP Cas 166,
41 CCH EPD 36468.
Footnote 41. Pope v Local 400, United Food & Commercial Workers Union (1988, DC
Dist Col) 49 CCH EPD 38833.
Footnote 42. Schneider v Jax Shack, Inc. (1986, CA8) 794 F2d 383, 41 BNA FEP Cas
266, 41 CCH EPD 36547.
1094 Intolerable working conditions

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For conditions to be sufficiently "intolerable" to establish constructive discharge, they
must be intolerable not just to the employee involved, but to a reasonable and objective
person. 43 Weighing the adequacy of aggravating factors 44 in determining the
reasonableness of an employee's reaction is a question of fact. Thus, while an employer's
failure to promote an employee alone would have been insufficient to establish
constructive discharge, the plaintiff's case was permitted to proceed since he also alleged
scheduling problems and racial harassment, raising a factual question of whether a
reasonable person would have resigned because of these other factors. 45 Evidence of a
reduction in job responsibilities to the point where an employee has nothing meaningful
to do with her time can lead to an inference of constructive discharge, although a mere
reduction or change in job responsibility based on an employer's reasonable business
decision does not constitute intolerable working conditions. 46 For example, when an
employee's supervisory duties, but not his salary, were reduced, and the employer offered
to pay relocation costs, the working conditions were not found to be so intolerable as to
constitute a constructive discharge when the employee refused to relocate to another area.
47
1094 ----Intolerable working conditions [SUPPLEMENT]
Case authorities:
Although reasonable employee will, prior to leaving her position, usually request to be
transferred, or advise employer that she would feel compelled to leave if changes are not
made, or file grievance, such steps do not have to be taken in all cases of alleged
constructive discharge; employee may be able to show that working conditions were so
intolerable that reasonable employee would feel forced to resign without remaining on
job for period necessary to take those steps. Clowes v Allegheny Valley Hosp. (1993,
CA3 Pa) 991 F2d 1159, 61 BNA FEP Cas 908, amd (CA3 Pa) slip op.
In Title VII constructive discharge case, objective standard should be utilized, which
requires finding that employer knowingly permitted conditions of discrimination in
employment so intolerable that reasonable person subject to them would resign. Sheridan
v E. I. duPont de Nemours & Co. (1996, CA3 Del) 74 F3d 1439, 69 BNA FEP Cas 1705,
67 CCH EPD 43868, vacated, reh, en banc, gr (1996, CA3) 70 BNA FEP Cas 98.
Requiring employee to work for much younger person can create, under certain
circumstances, intolerable working conditions amounting to constructive discharge.
McCann v Litton Systems, Inc. (1993, CA5 Miss) 986 F2d 946, 61 BNA FEP Cas 705,
61 CCH EPD 42140, reh, en banc, den (CA5) 1993 US App LEXIS 11093.
Test for constructive discharge is that of reasonable employee; that is, were working
conditions so difficult or unpleasant that reasonable person in employee's shoes would
have felt compelled to resign. McKethan v Texas Farm Bureau (1993, CA5 Tex) 996 F2d
734.
Defendant employer's motion for summary judgment on ADEA plaintiff's constructive
discharge claim was denied, where plaintiff alleged that his reassignment involved
menial or degrading work, that his reassignment was essentially demotion, that in his
new position, he was required to assist research of younger scientist, and that his
reassignment was sole motivation for his retirement, because evidence was sufficient to
raise material issues of fact as to whether plaintiff's working conditions were intolerable.
Ellzey v Espy (1995, ED La) 66 BNA FEP Cas 1547.
Footnotes
Footnote 43. Levendos v Stern Entertainment, Inc. (1988, CA3) 48 BNA FEP Cas 443;
Irving v Dubuque Packing Co. (1982, CA10) 689 F2d 170, 29 BNA FEP Cas 1514, 30
CCH EPD 33056.
Footnote 45. EEOC v Miller Brewing Co. (1986, ED Wis) 650 F Supp 739, 46 BNA FEP
Cas 1423, 43 CCH EPD 37012.
Footnote 46. Halbrook v Reichhold Chemicals, Inc. (1990, SD NY) 735 F Supp 121, 52
BNA FEP Cas 1151.
Footnote 47. Cherchi v Mobil Oil Corp. (1988, DC NJ) 693 F Supp 156, 48 BNA FEP
Cas 345, affd without op (CA3) 865 F2d 249, 48 BNA FEP Cas 642.
1095 Employer's responsibility for alleged intolerable working conditions caused

by others
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To establish a constructive discharge there must be some action for which the employer
can be held liable. For example, absence of notice to an employer does not necessarily
insulate that employer from liability for hostile environment sexual harassment. 48 As
a result, the Third Circuit has held that notice to executive management about the
misconduct of supervisory employees that causes a constructive discharge is not required
in a small facility, where a plaintiff had attempted repeatedly to report acts of sex
discrimination. Under those circumstances, knowledge of the discriminatory actions
could be imputed to the management. 49
1095 ----Employer's responsibility for alleged intolerable working conditions
caused by others [SUPPLEMENT]
Footnotes
Footnote 49. Levendos v Stern Entertainment, Inc. (1990, CA3) 909 F2d 747, 53 BNA
1096 Requirement that alleged intolerable working conditions forced employee to

quit
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Plaintiffs alleging constructive discharge must demonstrate a causal connection between
intolerable working conditions and the decision to resign. Thus, evidence of the
employee's state of mind is relevant, because it may be used to refute a claim that
conditions were "intolerable." 50
Employees have failed to demonstrate causal connections between intolerable working
conditions and the decision to quit where:
an employee's resignation letter said she "sincerely enjoyed" working for the employer;
51
an employee did not express any discontent with his job duties or his working
environment, and his resignation letter only complained about alleged improper
procedures surrounding his transfer and an alleged threat of demotion; 52

a plaintiff resigned without resorting to available administrative and judicial remedies
for perceived discriminatory denial of promotion, and the employer offered
reinstatement; 53
a period of time elapsed between the events allegedly making the working conditions
intolerable and the plaintiffs' resignation. 54
An employee could still prove a causal connection between intolerable working
conditions and her resignation, although her resignation letter did not refer to
circumstances she considered intolerable. She could have omitted reference to those
circumstances, including alleged rape, for a variety of reasons unrelated to the
establishment of a constructive discharge claim. 55
1096 ----Requirement that alleged intolerable working conditions forced employee
to quit [SUPPLEMENT]
Case authorities:
To establish constructive discharge, ADEA plaintiff must show that employer
deliberately made his working conditions so intolerable that he was forced into
involuntary resignation. Stetson v Nynex Serv. Co. (1993, CA2 NY) 995 F2d 355, 62
Claim of constructive discharge in ADEA suit must be dismissed as matter of law unless
evidence is sufficient to permit rational trier of fact to infer that employer deliberately
created working conditions that were so difficult or unpleasant that reasonable person in
employee's shoes would have felt compelled to resign. Stetson v Nynex Serv. Co. (1993,
CA2 NY) 995 F2d 355, 62 BNA FEP Cas 119, 61 CCH EPD 42280.
Footnotes
CCH EPD 32993.
CCH EPD 32993.
Footnote 52. Darris v Missouri Dept. of Social Services, Div. of Youth Services (1984,
ED Mo) 580 F Supp 1234, affd without op (CA8) 745 F2d 62.
Footnote 53. Grant v Morgan Guaranty Trust Co. (1986, SD NY) 638 F Supp 1528.
Footnote 54. Smith v Bath Iron Works Corp. (1991, CA1) 943 F2d 164, 56 BNA FEP
Cas 1297, 57 CCH EPD 41015; Peterson v Norfolk Southern Corp. (1989, WD Va)

Footnote 55. Hunter v Countryside Asso. for Handicapped, Inc. (1989, ND Ill) 710 F
1097 Effect of unlawful working conditions

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Despite the division of opinion on the question of whether an employer's intent to force
an employee to quit is necessary for a finding of constructive discharge under Title VII,
56 most courts require evidence that the employer intended to create the conditions that
led to the resignation, and that those conditions were unlawfully discriminatory. The
absence of a Title VII violation is fatal to a claim of constructive discharge under that act.
For example, a constructive discharge was not demonstrated when:
the plaintiff prematurely resigned although there was no evidence of any retaliation
against her during the seven prior work weeks, she did not complain to management
about any alleged retaliation, and she failed to give the EEOC the opportunity to resolve
her second retaliation charge before resigning; 57
an employee's transfer involved no loss of title, pay, or benefits; 58
an employee formed the mistaken belief, based on excessive sensitivity, that she would
be fired because her personnel file was on her supervisor's desk; 59
an employee was demoted in a nondiscriminatory reduction in force, and suffered a
small decrease in pay and some loss of supervisory responsibilities. 60
However, while Title VII violations are necessary, they are not by themselves sufficient
to prove a constructive discharge. This is true whether the violation is a denial of equal
compensation, 61 a denial of promotion, 62 a discriminatory performance evaluation,
63 or an undesirable assignment. 64
The courts and the EEOC have been more willing to find constructive discharge when a
variety of Title VII violations have occurred, particularly over a significant period of
time, 65 or when they are combined with unlawful sexual innuendos 66 or unlawful
sexual advances from a supervisor. 67
The Third Circuit has held that a constructive discharge occurred when a male employee
was denied unpaid childrearing leave, which was available to female employees, in
violation of Title VII's prohibition against sex discrimination. 68
Intolerable working conditions, sufficient to support a claim of constructive discharge
under the ADEA, were demonstrated where:
an employer demoted a manager to a sales position and reduced his annual income by
two-thirds; 69
if an employee had accepted a subordinate staff position under his replacement, his
income would have been reduced by 50%, and he would have been ineligible for an
executive bonus plan. 70
Observation: A constructive discharge may also be found when an employee accepts

a "voluntary" early retirement only as an alternative to age-based discharge or other
age discrimination.
1097 ----Effect of unlawful working conditions [SUPPLEMENT]
Footnotes
Footnote 56. 1093.
Footnote 58. Darnell v Campbell County Fiscal Court (1990, ED Ky) 731 F Supp 1309,
53 BNA FEP Cas 240.
Footnote 59. Cobb v Rowan Cos. (1991, CA5) 919 F2d 1089 (unpublished).
Footnote 60. Jurgens v EEOC (1990, CA5) 903 F2d 386, 53 BNA FEP Cas 234, 54 CCH
EPD 40039.
Footnote 61. Fifth CircuitBourque v Powell Electrical Mfg. Co. (1980, CA5) 617 F2d
Ninth CircuitHeagney v University of Washington (1981, CA9) 642 F2d 1157, 26
BNA FEP Cas 438, 25 CCH EPD 31685;
Tenth CircuitIrving v Dubuque Packing Co. (1982, CA10) 689 F2d 170, 29 BNA FEP
Cas 1514, 30 CCH EPD 33056.
Footnote 62. Muller v U.S. Steel Corp. (1975, CA10) 509 F2d 923, 10 BNA FEP Cas
Footnote 63. Junior v Texaco, Inc. (1982, CA5) 688 F2d 377, 29 BNA FEP Cas 1696, 30
CCH EPD 33095.
Footnote 64. Fancher v Nimmo (1982, ED Ark) 549 F Supp 1324, 33 BNA FEP Cas
1190.
Footnote 65. Clark v Marsh (1981) 214 App DC 350, 665 F2d 1168, 26 BNA FEP Cas
1156, 26 CCH EPD 32082, EEOC v Hay Associates (1982, ED Pa) 545 F Supp 1064,
Footnote 66. Held v Gulf Oil Co. (1982, CA6) 684 F2d 427, 29 BNA FEP Cas 837, 29
CCH EPD 32968.
Footnote 67. EEOC Decision 81-17 (1981), CCH EEOC Dec 6757.
Footnote 69. Zabielski v Montgomery Ward & Co. (1990, CA7) 919 F2d 1276, 54 BNA
FEP Cas 1058, 55 CCH EPD 40446.
Footnote 70. Nielsen v Revcor, Inc. (1991, ND Ill) 770 F Supp 404.
1098 Discriminatory remarks as aggravating factors

View Entire Section
Go to Supplement
Discriminatory remarks, by themselves and along with other aggravating circumstances,
have been a factor that has persuaded courts to find constructive discharge. For example,
a supervisor's conversation with a plaintiff that included derogatory and stereotypical
remarks concerning both race and national origin established a constructive discharge
when viewed in conjunction with a failure to promote, retaliatory disciplinary warnings,
and reduction of the plaintiff's job responsibilities so that a higher level job could not be
justified. 71 Discriminatory comments do not have to have been made in the claimant's
presence in order to be probative in determining whether a constructive discharge has
occurred. Thus, racial slurs by those with day-to-day control over an employee could be
considered in the context of the significance of other allegedly discriminatory actions that
were specifically directed toward him. 72
Furthermore, a constructive discharge may be based on an essentially isolated remark.
Changing societal attitudes toward the use of racial and ethnic slurs may warrant refusal
to characterize them as "mere insults," or even "ordinary" discrimination. They may be
sufficient, alone, to find constructive discharge under the appropriate circumstances. 73
1098 ----Discriminatory remarks as aggravating factors [SUPPLEMENT]
Footnotes
Footnote 71. Alston v Blue Shield of Greater New York (1985, ED NY) 37 BNA FEP
Cas 1792, 37 CCH EPD 35373.
Footnote 72. Cogen v Milton Bradley Company/Hasbro, Inc. (1989, DC Mass) 49 CCH
EPD 38894.
Footnote 73. Bailey v Binyon (1984, ND Ill) 583 F Supp 923, 36 BNA FEP Cas 1236, 36
CCH EPD 34997.
1099 Remarks ending employment relationship as aggravating factors

View Entire Section
Go to Supplement
Courts will usually be more inclined to find constructive discharge in cases where
employers made statements encouraging employees to end the employment relationship,
or indicating that it is ending. When an employer's remarks, such as "perhaps you ought
to look for work elsewhere" 74 can reasonably be interpreted as a termination, or when
the employer demands a departure date, 75 a victim of a Title VII violation will be
considered constructively discharged. However, constructive discharge is not shown
where the employer simply has communicated the risk of a job, such as that the employee
might be terminated in the future for poor performance. 76
An employer's remarks signifying the end of the employment relationship also may be
probative of an "explicit discharge in essence," which differs from constructive discharge
in not requiring evidence of the employer's specific intent to cause the plaintiff to resign,
77 but results in much the same remedy for the plaintiff. A female bartender was
explicitly discharged "in essence" when, out of concern that heavy lifting and walking on
a slippery floor might jeopardize her pregnancy, the employer advised her that she was
soon to be removed from her position, but might be able to continue work as a part-time
waitress. 78
1099 ----Remarks ending employment relationship as aggravating factors
[SUPPLEMENT]
Footnotes
Footnote 74. Saltzman v Fullerton Metals Co. (1981, CA7) 661 F2d 647, 26 BNA FEP
Footnote 75. Welch v University of Texas & Its Marine Science Institute (1981, CA5)
Footnote 76. Bielert v Northern Ohio Properties (1988, CA6) 863 F2d 47.
Footnote 77. 1093.
Footnote 78. Schneider v Jax Shack, Inc. (1986, CA8) 794 F2d 383, 41 BNA FEP Cas
266, 41 CCH EPD 36547.
4. Discriminatory Discipline and Discharge Remedies [1100-1104]
1100 Settling a complaint through the EEOC

View Entire Section
The minimum remedies that the EEOC requires to conciliate a case involving
discriminatory discipline and discharge include:
the elimination of specific factors that brought about the disciplinary action or discharge
and correction of any factors that might result in future discriminatory disciplinary
actions or discharges;
an immediate reinstatement of the charging party to the same job or to a job that carries
the same pay rate and opportunity for advancement;
appropriate backpay;
retroactive seniority and fringe benefits;
the elimination from the employee's personnel record of all documents and entries
relating to the facts and circumstances that led to the unlawful disciplinary action or
discharge, with assurances that the charging party will not be penalized in future
consideration for promotion, transfer, or conditions of employment;
an agreement not to distribute information to any other employer regarding any of the
facts or circumstances relating to the disciplinary action or discharge;
a commitment to notify the EEOC about any proposed personnel action that adversely
affects the charging party, within sufficient time before the effective date of the action for
the EEOC to respond;
the submission of reports to the EEOC regarding future discharges. 79
In addition, whenever a minority or female employee is downgraded, the EEOC may
seek the employer's agreement to examine the action to determine whether it was
warranted by the facts, with particular attention to the length of time and the adequacy of
assistance given to learn the job. 80 Also, the EEOC may attempt to have the employer
agree to refer downgraded minority or female employees to training, with preference
given for future openings to employees who have had such training. 81
Observation: Since circumstances creating a constructive discharge 82 are to be

treated in all respects as an actual discharge, it is reasonable to conclude that the EEOC
would impose the same conciliation requirements in the content of a constructive
discharge.
Footnotes
Footnote 82. 1091-1099.
1101 Checklist of judicial remedies for discriminatory discipline and discharge

View Entire Section
The remedies that may be granted following a judicial determination that a plaintiff was a
victim of discriminatory discipline or discharge include:
reinstatement; 83
backpay and front pay; 84
retroactive seniority; 85
academic tenure; 86
protective orders; 87
attorney's fees. 88
Footnotes
Footnote 83. 1102.
Footnote 84. 1103.
Footnote 85. Fifth CircuitDanner v Phillips Petroleum Co. (1971, CA5) 447 F2d 159, 3
Seventh CircuitSprogis v United Air Lines, Inc. (1971, CA7) 444 F2d 1194, 3 BNA
Eighth CircuitHarper v General Grocers Co. (1979, CA8) 590 F2d 713, 18 BNA FEP
Cas 1359, 18 CCH EPD 8776.
DC CircuitLaffey v Northwest Airlines, Inc. (1974, DC Dist Col) 374 F Supp 1382, 7
BNA FEP Cas 687, 9 BNA FEP Cas 916, 7 CCH EPD 9277, affd in part and vacated in
part on other grounds 185 App DC 322, 567 F2d 429, 13 BNA FEP Cas 1068, 12 CCH
998, 16 CCH EPD 8140.
Footnote 87. 1104.
Footnote 88. Peters v Missouri P. R. Co. (1973, CA5) 483 F2d 490, 5 BNA FEP Cas 853,
6 BNA FEP Cas 163, 5 CCH EPD 8550, 6 CCH EPD 8690, cert den 414 US 1002,
Damages and attorney's fees are discussed in detail, and the general applicability of all
forms of relief are discussed at 2858 et seq.
1102 Reinstatement, generally

View Entire Section
Go to Supplement
In discriminatory discharge cases, the usual Title VII remedy is reinstatement, and its
availability is not affected by a discharged employee's ability to secure other employment
following discharge. 89 Reinstatement has even been found appropriate where an
employee was constructively discharged under Title VII, 90 under the ADEA, 91 and
under Title VI regarding his treatment in a federally-funded program. 92
Reinstatement is not mandatory. The decision to grant it lies within the sound discretion
of the trial court after a consideration of each case's facts. 93 However, in the absence of
exceptional circumstances, a trial court should order reinstatement. Exceptional
circumstances include situations in which there is extreme animosity between plaintiffs
and employers and situations in which the employee has been denied or fired from a high
level, unique, or unusually sensitive position in the employer's organization. 94 A
discriminatorily discharged teacher was entitled to reinstatement but not with tenure,
since she would not have been automatically accorded tenure had she not been
discharged. The district court's order of reinstatement with tenure was an abuse of
discretion since it was not qualified to evaluate the complex factors that the employer
would have considered in making tenure determinations. 95 Although the victim may be
awarded a comparable position if the former position no longer exists, 96 the Seventh
Circuit has held that reinstatement may be inappropriate when the employee's position is
no longer available, or when a reduction in force is continuing, and there is no
comparable position at any of the employer's locations. 97
Reinstatement may be denied where a discharged employee has voluntarily abandoned
his former profession. However, standing alone, the fact that the employee takes a job in
an unrelated field to meet his obligation to mitigate damages 98 should not be construed
as a voluntary withdrawal from his former profession. 99
While reinstatement may not be sought by a discrimination victim who is loath to return
to a hostile working environment, a court has ordered reinstatement where there was no
evidence that an employee unlawfully discharged under the ADEA would have to be in
close contact with former supervisors who might be hostile to him. 1 Reinstatement was
also appropriate where the hostility was limited to the employer's side, and most of the
officials who had complained about the plaintiff no longer worked for the employer. 2
Reinstatement has also been denied where the employee was no longer qualified for the
position at issue, 3 where innocent third parties would have been "bumped" from their
jobs, 4 and where neither employee had testified that she wanted to be reinstated and
both had relocated to another state. 5
Unlike Title VII unlawful discharges, reinstatement is not presumptively proper under 42
USCS 1983, since that statute, unlike Title VII, permits awards of damages and does
not limit backpay relief to two years prior to the filing of a charge. 6 Thus, there are
more options available to make the plaintiff "whole" as an alternative to reinstatement. 7
1102 ----Reinstatement, generally [SUPPLEMENT]
Case authorities:
When successful constructive discharge plaintiff is not reinstated, district court may
award present value of plaintiff's interest in pension plan as of date of settlement.
Hukkanen v International Union of Operating Eng'rs, Hoisting & Portable Local No. 101
(1993, CA8 Mo) 3 F3d 281, 62 BNA FEP Cas 1125, 62 CCH EPD 42590, reh, en banc,
den (CA8) 1993 US App LEXIS 29826.
Footnotes
Footnote 90. Coleman v Wayne State University (1987, ED Mich) 664 F Supp 1082, 44
Footnote 91. Bishop v Jelleff Associates (1974, DC Dist Col) 398 F Supp 579, 7 BNA
FEP Cas 510, 7 CCH EPD 9214; Brennan v Western Operations, Inc. (1974, DC Cal)
Consent Decree No. C-74-1039, May 15, 1974.

Footnote 92. Davis v Spanish Coalition for Jobs, Inc. (1988, ND Ill) 676 F Supp 171, 46
CCH EPD 38007.
Footnote 93. Combes v Griffin Television, Inc. (1976, WD Okla) 421 F Supp 841, 13
BNA FEP Cas 1455, 13 CCH EPD 11392; Ginsberg v Burlington Industries, Inc.
(1980, SD NY) 500 F Supp 696, 24 BNA FEP Cas 426, 24 CCH EPD 31346.
Footnote 94. Morgan v Arkansas Gazette (1990, CA8) 897 F2d 945, 52 BNA FEP Cas
431, 53 CCH EPD 39751.
Footnote 95. Ford v Nicks (1989, CA6) 866 F2d 865, 48 BNA FEP Cas 1657, 49 CCH
EPD 38659.
Footnote 96. Kuepferle v Johnson Controls, Inc. (1988, MD NC) 713 F Supp 171.
Footnote 97. Gaddy v Abex Corp. (1989, CA7) 884 F2d 312, 50 BNA FEP Cas 1333, 51
CCH EPD 39335.
Footnote 98. 2878.
Footnote 99. Ellis v Ringgold School Dist. (1987, CA3) 832 F2d 27, 45 BNA FEP Cas
137, 45 CCH EPD 37683.
Footnote 1. Armsey v Nestle Co. (1985, SD Ohio) 631 F Supp 717, 21 Ohio BR 453, 41
Footnote 2. Jackson v Albuquerque (1989, CA10) 890 F2d 225, 51 BNA FEP Cas 669,
52 CCH EPD 39489.
Footnote 3. Williams v Saxbe (1976, DC Dist Col) 17 BNA FEP Cas 1657, 12 CCH EPD
11016, 12 CCH EPD 11083, 12 CCH EPD 11130.
Footnote 4. Wangsness v Watertown School Dist. (1982, DC SD) 541 F Supp 332, 29
Footnote 5. EEOC v General Lines, Inc. (1989, CA10) 865 F2d 1555, 51 BNA FEP Cas
971, 48 CCH EPD 38623, 110 CCH LC 35171.
Footnote 6. As to backpay awards generally, see 2907 et seq.
Footnote 7. Rosario-Torres v Hernandez-Colon (1989, CA1) 889 F2d 314.
1102.1 --Reinstatement in discrimination and polygraph cases

View Entire Section

Reinstatement of an employee discharged in violation of the Employee Polygraph
Protection Act 8 may be ordered either in a private civil action, 9 or as incidental relief
in a Department of Labor injunctive action. 10
A juror who was likely to have been discharged because of his jury service in violation of
the Jury Systems Improvement Act was entitled to a preliminary injunction reinstating
him prior to the final disposition of the case. 11
Footnotes
Footnote 11. Jeffreys v My Friend's Place, Inc. (1989, MD Tenn) 719 F Supp 639.
1103 Backpay and front pay

View Entire Section
An order to remedy unlawful discipline and discharge will typically afford make-whole
relief, such as backpay up to the time of reinstatement. 12
If reinstatement is denied, the court may award "front pay". However, front pay was not
available where an ADEA plaintiff never sought reinstatement with his employer in his
complaint alleging termination on the basis of age. Front pay is available only as an
alternative to reinstatement, and only if reinstatement is impracticable or impossible. 13
Footnotes
Footnote 12. Fifth CircuitPettway v American Cast Iron Pipe Co. (1969, CA5) 411
AF2d 998, 1 BNA FEP Cas 752, 71 BNA LRRM 2347, 2 CCH EPD 10011, 60 CCH
LC 9253; Danner v Phillips Petroleum Co. (1971, CA5) 447 F2d 159, 3 BNA FEP Cas
858, 3 CCH EPD 8319; Peters v Missouri P. R. Co. (1973, CA5) 483 F2d 490, 5 BNA
FEP Cas 853, 6 BNA FEP Cas 163, 5 CCH EPD 8550, 6 CCH EPD 8690, cert den
414 US 1002, 38 L Ed 2d 238, 94 S Ct 356, 6 BNA FEP Cas 924, 6 CCH EPD 8891.
Seventh CircuitSprogis v United Air Lines, Inc. (1971, CA7) 444 F2d 1194, 3 BNA
DC CircuitLaffey v Northwest Airlines, Inc. (1974, DC Dist Col) 374 F Supp 1382, 7
BNA FEP Cas 687, 9 BNA FEP Cas 916, 7 CCH EPD 9277, affd in part and vacated in
part on other grounds 185 App DC 322, 567 F2d 429, 13 BNA FEP Cas 1068, 12 CCH
998, 16 CCH EPD 8140, affd 206 App DC 173, 642 F2d 578, 23 BNA FEP Cas 1628,
24 CCH EPD 31288, 89 CCH LC 33933 amd (DC Dist Col) 32 BNA FEP Cas 750,
32 BNA FEP Cas 752, 26 BNA WH Cas 1026, 29 CCH EPD 32714, affd in part and
remanded in part on other grounds 241 App DC 11, 746 F2d 4, 35 BNA FEP Cas 1609,
FEP Cas 1816, 37 CCH EPD 35293, affd in part and revd in part on other grounds 238
App DC 400, 740 F2d 1071, 35 BNA FEP Cas 508, 27 BNA WH Cas 4, 34 CCH EPD
34540, 101 CCH LC 34585, cert den 469 US 1181, 83 L Ed 2d 951, 105 S Ct 939, 36
Footnote 13. Greene v Union Mut. Life Ins. Co. (1986, DC Me) 635 F Supp 1437.
1104 Protective and injunctive orders

View Entire Section
A judicial order of relief in discipline and discharge discrimination cases may include
whatever protective orders or injunctions may be needed. 14 For example, a plaintiff
discharged as a result of racial discrimination under Title VII was entitled to have
performance appraisals and all written memoranda expunged from her employment
records. 15
However, a police officer forced to retire on psychiatric grounds was not granted
expungement of psychological information from her file, since there was conflicting
evidence as to whether her psychiatric disability rendered her unsuitable for full police
duty. 16
Observation: Protective order relief may also include restrictions concerning how an
employer can respond to requests for references involving the unlawfully terminated
employee, and other forms of affirmative injunctive relief of the type required by the
EEOC in conciliating a Title VII complaint. 17
Footnotes
(1985, ND Ind) 612 F Supp 1105.
Footnote 16. Lenihan v New York (1985, SD NY) 636 F Supp 998, 38 CCH EPD
35753.
Footnote 17. 1100.
B. Employer's Actions Under Labor Relations Law [1105-1108]
Research References
29 USCS 157, 158, 159
1. Discrimination in Representation Proceedings [1105]
1105 Statements regarding race as grounds for setting aside elections

View Entire Section
The National Labor Relations Act (NLRA) establishes the procedures under which
employees may select or reject by secret ballot a labor organization to act as their
exclusive representative for the purpose of collective bargaining. 18 Pursuant to this
authority, the NLRB can establish reasonable and proper standards for the conduct of
representation elections and to police election campaigns in order to ensure compliance
with established rules. 19
Racial statements that are highly emotional and inflammatory and that reasonably could
be perceived as threatening are more likely to interfere seriously with the election process
and may warrant the setting aside of an election. Accordingly, an election was set aside
due to racially charged statements where an employer:
indicated that its employment policy with respect to race depended on whether
employees had designated the union as their collective bargaining representative; 20
informed black employees less than a week before an election that certain elements of
the company had wanted to replace all blacks with whites, and that the employer had
been preventing it, but that the union could not have helped them in this matter; 21
mailed photographs showing interracial dancing in a news account of union integration
activities, one of which was headlined, "Race Mixing Is An Issue As Vickers Workers
Ballot." 22
Conversely, racial statements that are temperate in mood and those that are informative
or simply express opinions will ordinarily not be sufficient to warrant the setting aside of
an election. Thus, grounds for setting aside an election were not found where an
employer:
in response to employees' questions, stated that it was legally obligated to hire
applicants without discrimination based on color, and that if the union were to be chosen
it would force the employer to hire blacks to displace white employees; 23
stated in a letter to employees that the union was strongly pro-integration, that the union
had submitted a pro-integration brief to the Supreme Court, that it was striving to
eliminate segregation from every phase of American life, and that it was a member of the
AFL-CIO, which at its last convention, had contributed $75,000 to the NAACP. 24
Footnotes
Footnote 19. Collins & Aikman Corp. v NLRB (1967, CA4) 383 F2d 722, 66 BNA
LRRM 2280, 56 CCH LC 12205.
Footnote 20. Bush Hog, Inc. (1966) 161 NLRB 1575, 63 BNA LRRM 1501, 1967 CCH
NLRB 20945, enforced (CA5) 405 F2d 755, 70 BNA LRRM 2070, 59 CCH LC
13156.
Footnote 21. Southern Car & Mfg. Co. (1953) 106 NLRB 144, 32 BNA LRRM 1418.
Footnote 22. Sewell Mfg. Co. (1962) 138 NLRB 66, 50 BNA LRRM 1532, 1962 CCH
NLRB 11504.
Footnote 23. Congdon Die Casting Co. (1969) 176 NLRB 482, 71 BNA LRRM 1285,
1969 CCH NLRB 20906.
Footnote 24. Sharnay Hosiery Mills, Inc. (1958) 120 NLRB 750, 42 BNA LRRM 1036.
2. Discriminatory Acts as Interferences With Labor Relations Rights [1106, 1107]
1106 Generally
View Entire Section
The NLRA guarantees employees the right to organize, the right to bargain collectively,
and the right to engage in strikes, picketing, and any other concerted activities for their
mutual aid and protection, or to refrain from such activities. 25 It is an unfair labor
practice for an employer to interfere with, restrain, or coerce employees in the exercise of
these 7 rights guaranteed by the NLRA. 26
An employer's discrimination based on race, sex, or national origin, standing alone, is not
"inherently destructive" of employees' guaranteed rights of self-organization, and

therefore is not an unlawful interference with those rights under the NLRA. To prove a
violation, there must be evidence of a connection between the alleged discriminatory
conduct and interference with employees' protected statutory rights under the NLRA.
Thus, an employer who paid its male employees more than its female employees solely
because of their sex did not per se commit an unfair labor practice. 27
On the other hand, an employer had committed an unfair labor practice where it
maintained a policy and practice of invidious discrimination against its employees on
account of race or national origin. According to the court, the discrimination set up an
unjustified clash of interests between groups of workers, thus frustrating the possibility of
concerted action. In addition, the discrimination inhibited employees from asserting their
rights against the employer perpetrating the discrimination. 28
Observation: The District of Columbia Circuit in United Packinghouse 29

intended to create a per se rule that invidious discrimination on the basis of race or
national origin automatically violates the NLRA. That approach specifically was
repudiated in Jubilee Manufacturing Company, 30 and the Board has continued to
adhere to the policy set forth in Jubilee.
Footnotes
Footnote 27. Jubilee Mfg. Co. (1973) 202 NLRB 272, 82 BNA LRRM 1482, 1973 CCH
NLRB 25127, affd 164 App DC 202, 504 F2d 271, 87 BNA LRRM 3168.
Footnote 28. United Packinghouse, Food & Allied Workers International Union v NLRB
(1969) 135 App DC 111, 416 F2d 1126, 9 BNA FEP Cas 317, 9 BNA FEP Cas 325, 70
BNA LRRM 2489, 73 BNA LRRM 2095, 1 CCH EPD 9921, 59 CCH LC 13254, cert
den 396 US 903, 24 L Ed 2d 179, 90 S Ct 216, 9 BNA FEP Cas 1407, 72 BNA LRRM
2658, 2 CCH EPD 10072, 61 CCH LC 10466.
2658, 2 CCH EPD 10072, 61 CCH LC 10466.
Footnote 30. Jubilee Mfg. Co. (1973) 202 NLRB 272, 82 BNA LRRM 1482, 1973 CCH
NLRB 25127, affd 164 App DC 202, 504 F2d 271, 87 BNA LRRM 3168.
1107 Retaliation against employees for challenging discrimination

View Entire Section

Although an employer's discrimination based on race, sex, or national origin alone may
not violate the NLRA, employee challenges to discrimination may be protected
concerted, i.e. group, activity. Employer retaliation against such action would be an
unfair labor practice. For example, five black workers were engaged in protected
concerted activity when all five filed similar EEOC charges within three days of layoff
and three of the five referred to discrimination against others. Thus, the employer's
retaliatory refusal to recall laid-off workers was an unfair labor practice. 31
Individual protests against discriminatione.g. solo work stoppages, charges filed on an
individual's exclusive behalfprobably will not be deemed concerted under the NLRB's
current formulation. 32
Observation: Retaliation under the NLRA against an employee who has protested
alleged discrimination or filed EEOC charges is similar conceptually to retaliation
prohibited under a variety of equal employment statutes.
Footnotes
Footnote 31. Frank Briscoe, Inc. v NLRB (1981, CA3) 637 F2d 946, 24 BNA FEP Cas
1175, 106 BNA LRRM 2155, 24 CCH EPD 31462, 97 CCH LC 10224.
Footnote 32. Meyers Industries, Inc (1986) 281 NLRB No. 118, 123 BNA LRRM 1137,
1986-87 CCH NLRB 18184, affd (App DC) 835 F2d 1481, 127 BNA LRRM 2415, 107
CCH LC 10226.
3. Discrimination in Connection With Bargaining Duty [1108]
1108 Generally
View Entire Section
The elimination of racially discriminatory practices in a plant is a mandatory subject of
bargaining, and an employer who refuses to bargain with a union concerning the
elimination of such practices violates the NLRA. 33
Footnotes
2658, 2 CCH EPD 10072, 61 CCH LC 10466.
C. Other Practices [1109-1112]
Research References
1109 Discriminatory plant closings
View Entire Section
Job discrimination laws do not expressly prohibit an employer from closing all or
particular plants or operational facilities. However, plant closings may be challenged as
having an adverse impact on a group protected by that legislation. Under such a
challenge, an employer must provide a business justification for the action. For example,
an employer faced with a large loss of profits that closed a work facility staffed by mostly
minority group workers, while keeping open a plant staffed by mostly white workers, did
not violate Title VII when it showed that the per unit labor costs of the closed plant were
almost twice those of the open plant. Furthermore, it was more efficient to close the
more expensive operation and move its remaining department to another facility, than to
improve the plant and leave it open. 34
Footnotes
Footnote 34. Payne Bobbie Brooks, Inc. (1980, ND Ohio) 505 F Supp 707, 24 BNA FEP
Cas 1233, 24 CCH EPD 31446, affd without op (CA6) 20 BNA FEP Cas 392, cert den
(US) 74 L Ed 2d 111, 103 S Ct 129, 29 BNF FEP Cas 1560, 30 CCH EPD 33063.
1110 Discrimination in supplying information to other employers

View Entire Section
Title VII protects former employees even though the literal language of the statute says
that it applies only to "employees or applicants for employment." The statute prohibits
discrimination related to or arising from the employment relationship, whether or not the
person discriminated against is an employee at the time of the discriminatory conduct. 35
However, in order for the statute's protection to extend to a former employee, the
motivation for the employer's conduct must actually be discrimination on the basis of
race, color, religion, sex, or national origin. While an employer's post-employment
"blacklisting" of an employee, or dissemination of adverse references to an employee's
prospective employers, may constitute tortious conduct, it is not "an employment
practice" within the meaning or scope of the statute unless the employer's actions are
motivated by a prohibited animus. 36 For example, the communication of false and
damaging references by a former employer to prospective employers has been found to
violate the statute when discrimination on the basis of sex or national origin motivated
the communication. 37 Similarly, an employer's refusal to issue a recommendation
letter for a former employee who had filed sex discrimination charges amounted to
retaliation in violation of Title VII. 38 On the other hand, no violation was found where
there was no reasonable basis to infer that race was a cause-in-fact of alleged blacklisting
that resulted in a former employee's discharge from two positions and rejection for a
third. 39
A former employer's giving of adverse employment references with an intent to
discriminate on racial grounds against a former employee interferes with that employee's
right to enter into an employment contract and thereby violates 42 USCS 1981. 40
However, if an employee is terminated for good cause, it is not a violation of Title VII or
42 USCS 1981 for an employer to provide other prospective employers of that
employee with unfavorable references. 41 As amended by the Civil Rights Act of 1991,
42 1981 provides that the right to make and enforce contracts includes the making,
performance, modification, and termination of contracts, as well as the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship. 43
Observation: It is reasonable to conclude that the above list includes all

post-employment conduct that interferes with the enjoyment of contractual benefits,
privileges, terms, and conditions.
State aspects: A number of states have enacted blacklisting statutes to protect

workers from unfair adverse references by vindictive former employers. 44 A few
states also have service letter statutes which require an employer to issue a letter
describing the nature and character of the service a former employee rendered, the
duration of the servicecertain basic terms of employment to certain employees who
have been discharged or have quit voluntarily. 45
Footnotes
Footnote 35. Pantchenko v C. B. Dolge Co. (1978, CA2) 581 F2d 1052, 18 BNA FEP
Cas 691, 17 CCH EPD 8549; Rutherford v American Bank of Commerce (1977, CA10)
Annotation: Dissemination of adverse employment references by former employer as
unlawful employment practice under Title VII of Civil Rights Act of 1964 (42 USCS
2000e-2(a)(1)), 50 ALR Fed 722.
Footnote 36. Bilka v Pepe's, Inc. (1985, ND Ill) 601 F Supp 1254, 38 BNA FEP Cas
1655, 37 CCH EPD 35254; Moore v Bank of New Orleans (1975, ED La) 12 BNA FEP
Cas 1566, 11 CCH EPD 10946; Tarvesian v Carr Div. of TRW, Inc. (1976, DC Mass)
407 F Supp 336, 16 BNA FEP Cas 348, 11 CCH EPD 10928; EEOC v United States
Fidelity & Guaranty Co. (1976, DC Md) 414 F Supp 227, 15 BNA FEP Cas 532, 11 CCH
EPD 10935; Ferguson v Mobil Oil Corp. (1978, SD NY) 443 F Supp 1334, 19 BNA
FEP Cas 357, 16 CCH EPD 8135, dismd on other grounds (SD NY) 20 BNA FEP Cas
24 CCH EPD 1278.
Footnote 37. Shehadeh v Chesapeake & Potomac Tel. Co. (1978) 193 App DC 326, 595
F2d 711, 18 BNA FEP Cas 614, 18 CCH EPD 8683, 50 ALR Fed 698.
Footnote 38. Sparrow v Piedmont Health Systems Agency, Inc., (CA4) No. 84-2118,
12/11/85 (unpublished).
Footnote 39. Ferguson v Mobil Oil Corp. (1978, SD NY) 443 F Supp 1334, 19 BNA FEP
Cas 357, 16 CCH EPD 8135, dismd (SD NY) 20 BNA FEP Cas 1677, 18 CCH EPD
8660, affd without op (CA2) 607 F2d 995, 20 BNA FEP Cas 1691, 24 CCH EPD
31278.
Footnote 40. London v Coopers & Lybrand (1981, CA9) 644 F2d 811, 26 BNA FEP Cas
755, 26 CCH EPD 31832.
Footnote 41. Grice v Frito-Lay, Inc. (CA4) No. 84-1434, 12/20/84.
Footnote 42. P.L. 102-166 101(2).
Footnote 44. State blacklisting statutes are identified and discussed in the Employment
Coordinator at EP-22,940 et seq.
Footnote 45. State service letter statutes are identified and discussed in the Employment
Coordinator at EP-22,959 et seq.
1111 Common law protection from defamation

View Entire Section
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In a number of states, courts have allowed discharged at-will employees to bring libel or
slander suits claiming that the employer published false statements about the worker's
performance or record that injured his reputation. 46
However, more than falsity must be proved in order for the employee to recover. Both
malice by the employer and publication of the defamatory statement must be alleged and
proved. 47 Malice and publication, or communication, in the context of defamation may
have slightly different definitions in different jurisdictions. A federal circuit court has
defined malice as making statements with knowledge that they were false, with a high
degree of awareness of their probable falsity, or with serious doubts as to their truth. 48
In Kansas, for example, remarks communicated by one corporate employee to another
regarding the job performance of a third employee are publication for the purposes of a
defamation action against the employer. 49 Publication, or communication, has been
proved or demonstrated sufficiently to support a lawsuit when:
an employee's supervisor falsely told a manager who ultimately discharged him that the
employee had made unauthorized charges to the employer's credit card and had taken
home computer equipment; 50
former employees, terminated after being falsely accused of gross insubordination for
refusing to alter their expense accounts, were required to tell prospective employers the
reason that they had been fired, raising a cause of action against the original employer; 51
a public employer's intragovernmental communication of a former employee's discharge
for "unprofessional conduct," as well as its giving the press access to the employee's
personnel file containing her termination letter, amounted to a sufficient publication to
support the initiation of a defamation suit. 52
Employees could not show publication when:
the required publication of the defamatory statement was based on hearsay; 53
a plaintiff alleged that his discharge during a reduction in force was the equivalent of
publishing a letter to every other employee stating that the plaintiff had been determined
to be unqualified for any position, but the discharge was not in itself a false publication,
and any inferences that may have been drawn by third parties did not make the
termination defamatory; 54
a performance evaluation by a supervisor was communicated to the employer's
management personnel who were responsible for acting on such information, since such
reports were deemed confidential and not available to the general public under previous
state court decisions; 55
a letter of recommendation was sent to a discharged employee at her request, listing the
circumstances of her termination; 56
a plaintiff's own repetition of the allegedly defamatory reasons for her discharge was the
basis of the alleged publication; 57
a discharged employee admitted that he had never used his former employer's reference
letter. 58
Caution: While defensible personnel actions require careful documentation,

managers should be aware that company personnel files are often available to
employees under state employee-access statutes and can become the basis for
defamation claims. Employee-access statutes are discussed in EP-22,501 et seq.
A New York court has held that since that state does not recognize tort causes of action
for abusive discharge, an employee could not bring a defamation claim based on his
discharge. 59
1111 ----Common-law protection from defamation [SUPPLEMENT]
Practice Aids: Insulating sexual harassment grievance procedures from the chilling
effect of defamation litigation, 69 Wash LR 235 (1994).
Footnotes
Footnote 46. O'Brien v Papa Gino's of America, Inc. (1986, CA1) 780 F2d 1067, 1 BNA
IER Cas 458, 121 BNA LRRM 2321 39 CCH EPD 36034, 104 CCH LC 55547;
Lewis v Equitable Life Assur. Soc. (1986, Minn) 389 NW2d 876, 1 BNA IER Cas 1269,
105 CCH LC 55625; Falls v Sporting News Pub. Co. (1987, CA6) 836 F2d 611, 45
Footnote 47. Williams v Delta Haven, Inc. (1982, La App) 416 So 2d 637.
Footnote 48. O'Brien v Papa Gino's of America, Inc. (1986, CA1) 780 F2d 1067, 1 BNA
IER Cas 458, 121 BNA LRRM 2321, 39 CCH EPD 36034, 104 CCH LC 55547.
39604.
Footnote 50. Howcroft v Mountain States Tel. & Tel. Co. (1989, DC Utah) 712 F Supp
514 (applying Utah law).
Footnote 51. Lewis v Equitable Life Assur. Soc. (1986, Minn) 389 NW2d 876, 1 BNA
IER Cas 1269, 105 CCH LC 55625.
39604.
Footnote 53. Michels v Delaware McDonald's Corp. (1985, ED Mich) 102 CCH LC
55502.
Footnote 54. Sallder v Basin Electric Power Cooperative (1987, ND) 409 NW2d 87, 107
CCH LC 55786.
Footnote 55. Bals v Verduzco (1990, Ind App) 564 NE2d 307, 6 BNA IER Cas 54.
Footnote 56. Montgomery v Big B, Inc. (1984, Ala) 460 So 2d 1286, 119 BNA LRRM
2731.
Footnote 57. Gore v Health-Tex, Inc. (1990, Ala) 567 So 2d 1307, 5 BNA IER Cas 1643.
Footnote 58. Arado v General Fire Extinguisher Corp. (1985, ND Ill) 626 F Supp 506.
Footnote 59. O'Donnell v Westchester Community Service Council, Inc. (1983, 2d Dept)
96 App Div 2d 885, 446 NYS2d 41, 115 BNA LRRM 2042.
1112 Defenses to defamation claims

View Entire Section
Go to Supplement
There is an absolute immunity from liability for defamatory statements made in court
proceedings or at administrative hearings. This immunity has been used to bar slander
charges incident to an unjust dismissal suit. 60 Absolute immunity was a successful
defense to a defamation claim based on employer's statements:
in materials provided to the EEOC, from the employee's personnel file, pursuant to an
investigation by the EEOC; 61
made at the EEOC factfinding conference on the plaintiff's charges, which was a
quasi-judicial proceeding; 62
covered by a state statute which provided an absolute privilege to a person who
communicated with the job service office in relation to the performance of its duties; 63
giving an employee the reasons for his discharge in a termination letter, which was an
intracorporate communication, where there was insufficient evidence of malice; 64
made by a federal official regarding a discharged federal employee, within the official's
scope of duty and based on his individual discretion; 65
in the form of a written response to an inquiry made by the local unemployment
compensation agency concerning the reasons for the plaintiff's dismissal. 66
However, absolute immunity was not a successful defense to a defamation claim based
on an employer's statement:
when a bank filed a proof of loss statement with its bonding company stating that a loan
officer had received preferential treatment in the purchase of a condominium as a gratuity
for approving a customer's loan; 67
at a news conference, that the former employee's sexual harassment suit was without
merit. Because the suit had been settled, the comments by the public officials involved in
the litigation concerning a private citizen did not give rise to a freedom of speech defense
on matters of public concern, under the Kansas Constitution; 68
to various corporate personnel and four employees who were asked to sign the
statement, even though the statement might have been relevant to an unemployment
compensation hearing, since it might also have been intended to harass the plaintiff and
fabricate evidence to cover up discriminatory treatment. 69
It is also an established general rule that an employer has a qualified privilege, in the
absence of malice, to make statements about the character of an employee or former
employee to persons having a definite interest, such as other employees, 70 other
prospective employers, 71 or customers. 72 In the latter case, it was held that the
employer had a legitimate business interest in communicating with customers about the
discharge of a former employee to stem rumors started by the ex-employee that the
employer was going out of business.
Employers have had valid qualified privilege defenses to defamation claims concerning
statements:
made by a police chief to a city council committee concerning whether a former policy
officer should be rehired, since the privilege conditionally protects public officials acting
in their official capacities in speaking out on issues of public importance, such as the
qualifications needed for the police force; 73
made to the state unemployment compensation board concerning the reasons for an
employee's termination; 74
to the press that a plaintiff's sexual harassment and retaliation charges had no merit,
because the statement was opinion protected under the First Amendment, and no more
than a routine response to pending litigation. Similarly, a statement concerning a
potential countersuit for defamation by the employer's counsel during the course of an
in-house investigation also amounted to a legal opinion not actionable under a
defamation claim. However, statements made by the employer's agent concerning the
plaintiff's mental health, if proved, were defamatory; 75
in an internal investigation report identifying the plaintiff as a chief suspect in a fund
shortage, as well as communications between company officials and security forces
concerning the investigation of the plaintiff for the shortage in question. All such
communications were restricted internally and were not published to the general work
force. 76
However, the privilege may be lost if negative comments about the employee are
published with actual malice, 77 or go beyond privileged channels. 78
Employers have not been able to defend successfully against defamation claims or suits
based on a conditional or qualified privilege when:
remarks made to employees concerning the plaintiff's dismissal, by two of the
employer's officers, showed negligence or want of reasonable care and diligence to
ascertain the truth. However, an award of punitive damages was not appropriate without
a showing that the defamatory publication was made with the knowledge, or reckless
disregard, and that it was false. The company official had spoken in reliance upon settled
company policy, an investigator's report, and the plant manager's report; 79
statements made by the employer's agent concerned the plaintiff's mental health; 80
Recommendation: Employers releasing information about former employees should

make sure that they are communicating with people who have a legitimate need to
know the information in order to make a hiring decision. The former employer should
also take pains to check the truth or falsity of the information before communicating to
another employer.
Recommendation: Even where a qualified privilege exists, employers that offer

more than a former employee's name, job title, employment dates, and salary
information without a signed authorization from the former employee are risking libel
and slander suits. An employer should include release forms in its employment
application asking the applicant to release both the requestor and the provider of past
employment information from liability for defamation.
Observation: An employer may commit job discrimination by providing other

employers with unfavorable references for an employee discharged for good cause
under some circumstances.
Illustration: An employer discharges an employee for good cause. It provides a

reference for the discharged employee that contains knowingly untrue or grossly
exaggerated unfavorable information after the terminated employee complains of
discrimination. The employer's action with regard to the reference request could be
construed as unlawful retaliation.
Illustration: An employer discharges an employee for good cause. It has a policy of

providing only dates of work and salary in employment reference checks. Its issuance
of an unfavorable reference for a former employee constitutes disparate treatment that
permits an inference of discriminatory intent under Title VII and other laws.
Another potential defense to a defamation claim is pre-emption by federal statute. For
example, Title VII pre-empted a discharged federal employee's constitutional claims
alleging defamation and invasion of privacy against his employer for allegedly
disseminating derogatory information concerning him. 81
South Dakota has a statutory provision that prevents malice from being inferred in any
communication made in a legislative, judicial, or other official proceeding authorized by
law. Thus, communications involving a terminated employee are privileged not only in
court, but also in administrative proceedings regarding unemployment compensation.
That statute also provides a privilege for communications without malice made to an
interested person by an interested person. Therefore, allegations concerning financial
irregularities of a bank officer, which were discussed only among the directors and
officers of the bank within the bank itself, constituted a statutory immunity against the
terminated employee's defamation claim. 82
1112 ----Defenses to defamation claims [SUPPLEMENT]
Case authorities:
Absolute privilege against defamation or other torts results from exercising right granted
by federal law, like filing of charge of discrimination with EEOC. Blistein v St. John's
College (1994, DC Md) 860 F Supp 256.
ADEA does not limit its reach only to acts of retaliation that take form of cognizable
employment actions, such as discharge, transfer or demotion; outside of workplace,
retaliatory conduct may take form of unfavorable references or even legal action, such as
suit for libel, defamation or malicious prosecution. Blistein v St. John's College (1994,
DC Md) 860 F Supp 256.
Footnotes
Footnote 60. Zuniga v Sears, Roebuck & Co. (1983, App) 100 NM 414, 671 P2d 662, 99
CCH LC 55424, 115 BNA LRRM 3189.
Footnote 61. Paros v Hoemako Hospital (1984, App) 140 Ariz 335 681 P2d 918.
Footnote 62. Medina v Spotnail, Inc. (1984, ND Ill) 591 F Supp 190, 40 BNA FEP Cas
1393.
Footnote 63. Haldeman v Total Petroleum, Inc. (1985, Iowa) 376 NW2d 98.
Footnote 64. Frankson v Design Space International (1986, Minn) 394 NW2d 140, 105
CCH LC 55634.
Footnote 65. Bartel v Federal Aviation Admin. (1985, DC Dist Col) 617 F Supp 190, 51
BNA FEP Cas 692.
Footnote 66. Holland v Marriott Corp. (1984, DC Dist Col) 34 BNA FEP Cas 1763.
Footnote 67. Prevost v First Western Bank (1987, 4th Dist) 193 Cal App 3d 1492, 239
Cal Rptr 161, 108 CCH LC 55845.
Footnote 68. Tomson v Stephan (1988, DC Kan) 699 F Supp 860, 4 BNA IER Cas 1655.
Footnote 69. Rager v Boise Cascade Corp. (1989, ND Ill) 1989 US Dist LEXIS 3335
(applying Ill law).
Footnote 70. Montgomery v Big B, Inc. (1984, Ala) 460 So 2d 1286, 119 BNA LRRM
2731; Happy 40, Inc. v Miller (1985) 63 Md App 24, 491 A2d 1210, cert den 304 Md
299, 498 A2d 1185; Arnold v Diet Center, Inc. (1987, App) 113 Idaho 581, 746 P2d
1040, 2 BNA IER Cas 1531; Reynolds Metals Co. v Mays (1989, Ala) 547 So 2d 518, 5
BNA IER Cas 1820, 134 BNA LRRM 2217.
Footnote 71. Holland v Marriott Corp. (1984, DC Dist Col) 34 BNA FEP Cas 1763;
Michels v Delaware McDonald's Corp. (1985, ED Mich) 102 CCH LC 55502;
Haldeman v Total Petroleum, Inc. (1985, Iowa) 376 NW2d 98.
Footnote 72. Casale v Dooner Laboratories, Inc. (1973, CA4) 503 F2d 303 (applying Md
law).
Footnote 73. Mulgrew v Taunton (1991) 410 Mass 631, 574 NE2d 389.
Footnote 74. Sugarman v RCA Corp. (1985, MD Pa) 639 F Supp 780.
Footnote 75. Coleman v American Broadcasting Cos. (1985, DC Dist Col) 38 BNA FEP
Footnote 76. McKinney v K-Mart Corp. (1986, SD W Va) 649 F Supp 1217, 2 BNA IER
Cas 529.
39604; Lewis v Equitable Life Assur. Soc. (1986, Minn) 389 NW2d 876, 1 BNA IER
Cas 1269, 105 CCH LC 55625.
Footnote 78. Welch v Chicago Tribune Co. (1976, Ill App) 340 NE2d 539; Weenig v
Wood (1976) 169 Ind App 413, 349 NE2d 235; Sias v General Motors Corp. (1964) 372
Mich 542, 127 NW2d 357; Liguori v Alexander (1980, SD NY) 495 F Supp 641
(applying NY law); Dell v K.E. McKay's Market, Inc. (1975) 273 Or 752, 543 P2d 678.
Footnote 79. Banas v Matthews International Corp. (1985) 348 Pa Super 464, 502 A2d
637, 121 BNA LRRM 2515, 107 CCH LC 55767.
Footnote 80. Coleman v American Broadcasting Cos. (1985, DC Dist Col) 38 BNA FEP
Footnote 81. Bartel v Federal Aviation Admin. (1985, DC Dist Col) 617 F Supp 190, 51
BNA FEP Cas 692.
Footnote 82. Blote v First Federal Sav. & Loan Asso. (1988, SD) 422 NW2d 834, 4 BNA
IER Cas 311.
IX. UNIONS', EMPLOYMENT AGENCIES', AND OTHER

ENTITIES' PRACTICES [1113-1204]
A. Union Practices [1113-1177]
Research References
29 USCS 141 et seq., 158, 159, 169, 206, 401 et seq., 411 et seq., 623, 630; 42
USCS 1981, 2000e, 2000e-2, 2000e-3, 2000e-1012111, 12112
29 CFR Part 30, 1605, 1620, 1625; 41 CFR Part 60-1
16 Am Jur Pl & Pr Forms (Rev), Labor and Labor Relations, Form 265 Employment
Coordinator at EP-10,601 et seq., 12,401 et seq., 20,261 et seq., 23,100 et seq.
Employment Coordinator LR-16,001 et seq., LR-20,001 et seq., LR-47,001 et
seq.
1. In General [1113-1125]
1113 Generally
View Entire Section
Go to Supplement
With certain exceptions, 83 employment discrimination by labor organizations 84 on
the basis of race, color, religion, sex, national origin, age, handicap, status as a veteran,
and other factors is prohibited with respect to membership, 85 apprenticeship and
training, 86 job referrals, 87 contract negotiation 88 and administration, 89 and other
practices 90 by virtually every federal and state job discrimination and fair employment
practices statute, including:
the National Labor Relations Act; 91
Executive Order 11246; 97
the National Apprenticeship Act of 1937. 98
With respect to the provision of 42 USCS 1983 that forbids discrimination "under
color of law," a union does not act under color of state law merely because its members
are employed on state construction projects. 99
Unions can be liable for discrimination forbidden by 42 USCS 1981. For example, a
union's nonreferral of a black member to an employer, in violation of it's collective
bargaining obligation, violated 1981 because the action interfered with a member's
opportunity to obtain employment under the agreement, and to form a new employment
contract with the employer. 1 Furthermore, because 1981 also prohibits racial
discrimination in making and enforcing employment contracts, and in the enjoyment of
all benefits, privileges, terms, and conditions of the contractual relationship, 2 unions
can also be held liable for policies and practices that discriminate in the enjoyment of
these other rights as well.
Unions are liable not only for the discrimination they commit, but they can also be held
liable:
in the case of an international union, for discrimination by its locals. 3

in the case of a successor union, for discrimination by a predecessor; 4
for employer discrimination in contract negotiation 5 and administration. 6
State aspects: Discriminatory practices by unions are prohibited by a variety of state

fair employment practices states, 7 separate state age discrimination statutes, 8 and
separate state equal pay statutes. 9
State aspects: Many state job discrimination laws prohibit discrimination by labor
organizations. 10
Practice Aids: Structures of subordination: women of color at the intersection of Title
VII and the NLRA. Not!, 28 Harv CRCL LR 395 (1993).
The four-headed monster: ADA, FMLA, OSHA, and workers' compensation, 46 Lab LJ
1:48 (1995).
Footnotes
Footnote 84. As to what constitutes a labor organization or labor union, see 77 et seq.
Footnote 89. 1168.
Footnote 91. 1123.
Footnote 92. 42 USCS 2000e-2(c), discussed at 1117.
Footnote 93. Sanders v Dobbs Houses, Inc. (1970, CA5) 431 F2d 1097, 2 BNA FEP Cas
942, 2 BNA FEP Cas 1053, 2 CCH EPD 10290, 3 CCH EPD 8019, cert den 401 US
948, 28 L Ed 2d 231, 91 S Ct 935, 3 BNA FEP Cas 193, 3 CCH EPD 8127; Macklin v
Spector Freight Systems, Inc. (1973) 156 App DC 69, 478 F2d 979, 5 BNA FEP Cas 994,
5 CCH EPD 8605.
Footnote 94. 29 USCS 623(c), discussed at 1118.

Law Reviews: Union Liability Under the Age Discrimination in Employment Act. 56
U. Chi. L. Rev. 1087 (1989).
Footnote 95. 42 USCS 12111(2), discussed at 1119.
Footnote 96. 29 USCS 206(d)(2),discussed at 1120.
Footnote 97. 42 USCS 2000e Note 207, discussed at 1121.
Footnote 99. Byrd v International Brotherhood of Electrical Workers (1974, DC Md) 375
Footnote 1. Robinson v Laborers' International Union, Local No. 496 (1989, ND Ohio)
52 CCH EPD 39461.
Law Reviews: Getman, The Changing Role of Courts and the Potential Role of Unions
in Overcoming Employment Discrimination. 64 Tul. L. Rev. 1477 (1990).
Footnote 3. 1115.
Footnote 4. 1116.
Footnote 7. These statutes are noted and discussed in the Employment Coordinator at
23,100 et seq.
12,401 et seq.
20,261 et seq.
Footnote 10. These state laws are noted and discussed in the Employment Coordinator
EP-23,100 et seq.
1114 Discrimination as breach of union's duty of fair representation

View Entire Section

The duty of fair representation obligates a union to serve the interests of all bargaining
unit members "without hostility or discrimination toward any, to exercise its discretion
with complete good faith and honesty, and to avoid arbitrary conduct." This duty exists
both in the negotiation 11 and administration 12 of collective bargaining contracts. A
union breaches its duty of fair representation only when its conduct toward a bargaining
unit member is arbitrary, discriminatory, or in bad faith. 13
A union violates its duty of fair representation if it discriminates against some bargaining
unit members because of race, 14
sex, 15 age, 16 alienage, 17 or religion. 18
An alleged breach of the duty of fair represenataion may subject a union to an unfair
labor practice proceeding before the National Labor Relations Board. 19
Such suits
also may be asserted in state or federal court under 301 of the Labor-Management
Relations Act. 20
Footnotes
Footnote 13. Vaca v Sipes (1967) 386 US 171, 17 L Ed2d 842, 87 S Ct 903, 64 BNA
LRRM 2369, 1 CCH EPD 9767, 55 CCH LC 11731.
Law Reviews: Allotta; Farley, The Appropriate Test in Determining Union Liability in
Employment Discrimination Cases. 5 Lab. Law. 27 (1989).
Footnote 14. Steele v Louisville & N. R. Co. (1944) 323 US 192, 89 L Ed 173, 65 S Ct
226, 9 BNA FEP Cas 381, 15 BNA LRRM 708, 1 CCH EPD 9607, 9 CCH LC 51188;
Syres v Oil Workers International Union (1955) 350 US 892, 100 L Ed 785, 76 S Ct
152, 9 BNA FEP Cas 430, 37, BNA LRRM 2068, 1 CCH EPD 9641, 29 CCH LC
69550.
Footnote 15. Farmer v Hotel Workers, Local 1064 (1978, ED Mich) 21 BNA FEP Cas
1599, 99 BNA LRRM 2166, 19 CCH EPD 9075, 85 CCH LC 11130, affd in part and
revd in part (CA6) 660 F2d 1096, 26 BNA FEP Cas 1068, 108 BNA LRRM 2145, 26
CCH EPD 32068, 92 CCH LC 12992.
Footnote 16. Local 51, International Printing & Graphic Communications Union,
AFL-CIO (1979) 240 NLRB 25, 100 BNA LRRM 1225, 1978-1979 CCH NLRB
15519.
Footnote 17. Actors' Equity Asso. (1980) 247 NLRB 1193, 103 BNA LRRM 1494, 1980
CCH NLRB 16923, enforced (CA2) 644 F2d 939, 106 BNA LRRM 2817, 90 CCH LC
12657.
Footnote 18. Beam v General Motors Corp. (1979, ND Ohio) 21 BNA FEP Cas 85, 21
CCH EPD 30434.

Footnote 19. Vaca v Sipes (1967) 386 US 171, 17 L Ed2d 842, 87 S Ct 903, 64 BNA
LRRM 2369, 1 CCH EPD 9767, 55 CCH LC 11731.
Footnote 20. Hawkins v Babcock & Wilcox Co. (1980, ND Ohio) 105 BNA LRRM
3438, 91 CCH LC 12908.
1115 International union's liability for discrimination by local union

View Entire Section
An international union can be held liable for discrimination practiced by its locals,
although the standards for imposing such liability are different depending on whether suit
is brought under Title VII or 42 USCS 1981.
Common law agency principles determine whether an international is liable under Title
VII for a local's discrimination. 21 An agency relationship exists when an international
has actual control over its local, as demonstrated by the terms of the international's
constitution, 22 or by proof that the international had an active role in the collective
bargaining process. 23
Although proof of an agency relationship is sufficient to establish liability under Title
VII, it is insufficient to impute the discriminatory intent of the local union to the
international union under 1981. Under that statute, an international union is liable
when, with knowledge of the surrounding circumstances, it authorizes, ratifies, or
approves a local's discriminatory actions. 24
Footnotes
Footnote 21. Berger v Iron Workers Reinforced Rodmen Local 201 (1988, App DC) 843
F2d 1395, 46 BNA FEP Cas 780, 46 CCH EPD 37894; Robinson v Laborers'
International Union, Local No. 496 (1989, ND Ohio) 52 CCH EPD 39461.
F2d 1395, 46 BNA FEP Cas 780, 46 CCH EPD 37894, cert den 109 S Ct 3155, 50
CCH EPD 39199.
Footnote 23. Patterson v American Tobacco Co. (1976, CA4) 535 F2d 257, 12 BNA FEP
CCH EPD 39199; Robinson v Laborers' International Union, Local No. 496 (1989, ND
Ohio) 52 CCH EPD 39461.
Specific instances involving the questions of an international's liability for a local's

discriminatory membership practices are discussed at 1138. With regard to these
problems in the context of contract administration, see 1165.
1116 Successor's liability for acts of predecessor

View Entire Section
Successor labor organizations can be held liable for the discriminatory acts of their
predecessors. The factors that determine whether a labor organization is a legal
"successor" are analogous to those applied to private employers. 25
Footnotes
Footnote 25. EEOC v Local 638 (1988, SD NY) 46 CCH EPD 37846.
As to successor employers, see 62.
1117 Title VII liability

View Entire Section
It is unlawful under Title VII for a labor organization to:
exclude or expel from membership, or to otherwise discriminate against, any individual
because of his race, color, religion, sex, or national origin; 26
limit, segregate, or classify its membership or applicants, or to refuse to refer for
employment any individual, in any way that would cut off or limit that individual's
employment opportunities, or otherwise adversely affect his status as an employee or job
applicant, because of his race, color, religion, sex, or national origin; 27
adjust the scores of, use different cutoff scores for, or otherwise alter the results of
employment-related tests, used in connection with the selection or referral of applicants
or candidates for employment or promotion, on the basis of race, color, religion, sex, or
national origin; 28
cause or attempt to cause an employer to discriminate illegally against an individual; 29
discriminate against any individual because of his race, color, religion, sex, or national
origin in admission to, or employment in, any apprenticeship or other training program;
30
discriminate against any member or applicant because he has opposed an unlawful
employment practice or because he has made a charge, testified, assisted, or participated
in any manner in a Title VII proceeding; 31
publish any notice or advertisement relating to membership or classification or referral
for employment indicating any preference, limitation, specification, or discrimination
based on race, color, religion, sex, or national origin. 32
Footnotes
Forms: Complaint in federal courtAllegationRacial discrimination by labor
organizationExclusion from membership and referral services. 16 Am Jur Pl & Pr
Forms (Rev), Labor and Labor Relations, Form 265.
1118 ADEA liability

View Entire Section
Go to Supplement
The ADEA limits age discrimination by a union in five ways.
First, it is unlawful for a labor organization to exclude or expel from its membership, or
otherwise discriminate against, any individual because of his age. 33
Second, it is unlawful for a labor organization to limit, segregate, or classify its
membership, or fail to refer for employment any individual, in a way that would tend to
cut off or limit that individual's employment opportunities, or otherwise adversely affect
his status as an employee or job applicant, because of the individual's age. 34
Third, labor organizations are prohibited from causing or attempting to cause an

employer to discriminate against an individual in violation of the Act. 35
Fourth, labor organizations are prohibited from printing or publishing any notice or
advertisement relating to membership in, or any classification or referral for employment
by, the labor organization indicating any preference, limitation, specification, or
discrimination based on age. 36
Fifth, it is illegal for a labor organization to discriminate against any member or applicant
for membership on grounds that the individual has opposed any practice made unlawful
by the ADEA or because the individual has made a charge or participated in any manner
in an investigation or proceeding under the Act. 37
1118 ----ADEA liability [SUPPLEMENT]
Practice Aids: EEOC v. Board of Governors of State Colleges and Universities:
Collective-bargaining agreements and Age Discrimination in Employment Act claims:
What counts as retaliation under ADEA 4(d)? 20 J Coll & Univ L 241 (1993).
Britt v. Grocers Supply Co.: The Age Discrimination in Employment Act preempts the
National Labor Relations Act, 68 Tulane LR 241 (1993).
Case authorities:
Since unions are liable for monetary damages under Fair Labor Standards Act when
acting as employer, unions are liable for such damages in action brought under ADEA.
LaPointe v United Autoworkers Local 600 (1993, CA6 Mich) 8 F3d 376, 63 BNA FEP
Cas 262, 63 CCH EPD 42641, reh, en banc, den (CA6) 1993 US App LEXIS 32559.
Action brought under Age Discrimination in Employment Act (29 USCS 621 et seq.)
is not preempted by 29 USCS 185, because employees have right not to be
discriminated against on basis of age without regard to collective bargaining agreement's
language about employee's rights. LaPointe v United Autoworkers Local 600 (1993, CA6
Mich) 8 F3d 376, 63 BNA FEP Cas 262, 63 CCH EPD 42641, reh, en banc, den (CA6)
ADEA protects individuals from age discrimination, and does not protect individuals
from other forms of alleged employer misconduct; thus, if employer chose not to hire
individuals because they were union members, such decision is not actionable under
ADEA. Faulkner v Super Valu Stores (1993, CA10 Colo) 3 F3d 1419, 62 CCH EPD
42536, 62 BNA FEP Cas 1289.
Footnotes

1119 ADA liability

View Entire Section
Effective July 26, 1992, 38 the ADA prohibits labor organizations 39 from:
discriminating with regard to job training or application procedures on the basis of
disability. 40
limiting, segregating, or classifying applicants for employment in a way that adversely
affects the opportunities or status of the individuals because of their disabilities. 41
participating in contractual or other relationships that have the effect of subjecting
qualified applicants with disabilities to discrimination that is unlawful under the ADA. 42
using standards, criteria, or methods of administration that have the effect of
discriminating on the basis of disability or of perpetuating the discrimination of others
who are subject to common administrative control. 43
discriminating because of a qualified individuals' known relationships or association
with individuals known to have disabilities. 44
denying employment opportunities to applicants on the basis of the need to make
using qualification standards, employment tests, or other selection criteria that tend to
screen out individuals with disabilities, unless the criteria are shown to be job-related and
consistent with business necessity. 46
failing to use employment tests in a manner that ensures accurate measure of what the
tests purport to measure. 47
Footnotes
Footnote 41. 42 USCS 12112(b)(1).
Footnote 42. 42 USCS 12112(b)(2).

Footnote 43. 42 USCS 12112(b)(3).
Footnote 44. 42 USCS 12112(b)(4).
Footnote 45. 42 USCS 12112(b)(5).
Footnote 46. 42 USCS 12112(b)(6).
Footnote 47. 42 USCS 12112(b)(7).
1120 Equal Pay Act liability

View Entire Section
Although the Equal Pay Act expressly prohibits unions from causing employers to
discriminate, 48 it is generally recognized that unions are not otherwise subject to the
provisions of the Act, whose focus is sex wage discrimination by employers. It has thus
been held that unions cannot be held liable to employees for backpay under the Act. 49
Furthermore, there is no violation of the Act involved in a union's refusal to go on strike
over the issue of an employer's refusal to equalize wages of male and female employees.
50
Footnotes
Footnote 49. Denicola v G. C. Murphy Co. (1977, CA3) 562 F2d 889, 15 BNA FEP Cas
1004, 14 CCH EPD 7778.
Footnote 50. Murphy v Miller Brewing Co. (1969, DC Wis) 307 F Supp 829, 9 BNA FEP
Cas 517, 2 CCH EPD 10076, 61 CCH LC 32274, affd without discussion of this point
(CA7) 457 F2d 221, 9 BNA FEP Cas 726, 4 CCH EPD 7691, 67 CCH LC 32641.
1121 Executive Order 11246 liability

View Entire Section
Under Executive Order 11246, the Secretary of Labor is required to use his "best efforts"
to cause labor unions engaged in work under government contracts to cooperate in the
implementation of the Order. The Secretary's "best efforts" must be expended either
directly or through contracting agencies, other interested governmental bodies,
contractors, subcontractors, applicants, and "all other available instrumentalities." 51
This means that in appropriate circumstances, the OFCCP will make good-faith efforts to
obtain union compliance, but will not resort to pressure tactics. 52 The Executive Order
also requires the Secretary to notify the EEOC, the Justice Department, or any other
appropriate federal agency whenever it has reason to believe that the practices of any
union violate Title VI, Title VII, or any other federal law. 53 The Fifth Circuit has
indicated that other than in the circumstances outlined in the above provisions, there is no
authority for any action against a labor union under the Executive Order. 54
The Director may hold hearings, public or private, to examine the practices and policies
of any labor union. 55
Footnotes
Footnote 51. 42 USCS 2000e Note 207; 41 CFR 60-1.9(b).
Footnote 52. Re American Sanitary Sales & Service Co. (1978) OFCCP Policy Directive
78-33/LEG.
Footnote 53. 42 USCS 2000e Note 207.
Footnote 54. United States v East Texas Motor Freight System, Inc. (1977, CA5) 564
Footnote 55. 41 CFR 60-1.9(c).
1122 Immigration Act liability

View Entire Section
While not specifically named in the Immigration Reform and Control Act of 1986 as a
covered entity, the legislative history of that act indicates that labor unions are included
in the act's prohibitions against discriminating against individuals on the basis of their
national origin or citizenship in recruitment and referral. 56
Footnotes
Footnote 56. S. Rep. No. 99-132, 99th Cong., First Sess. (1985) p. 32.
1123 Labor law liability

View Entire Section

Employees who are members of employee groups protected by federal and state equal
employment laws also may be protected in certain ways from discrimination by the
National Labor Relations Act (NLRA), as amended, 57 and the Labor-Management
Reporting and Disclosure Act (LMRDA). 58 For example, although the NLRA is not
specifically intended to protect employee civil rights, discriminatory practices by labor
organizations may warrant setting aside union elections 59 and/or constitute unfair labor
practices if they interfere with rights protected by that statute. 60 Moreover, under the
LMRDA union members are guaranteed certain membership rights that may not be
violated by union discriminatory practices. 61 In addition, labor organizations are
prohibited from causing or attempting to cause an employer to discriminate unlawfully
against an individual, 62 in order to encourage or discourage union membership. 63
Accordingly, a union acted unlawfully where it induced an employer to discriminate
against an employee on the basis of alienage. 64
It is also unlawful, under the NLRA, for a union to attempt to procure an employer's
discrimination against an employee who had filed a charge against the union with the
EEOC. 65
Footnotes
Footnote 59. As to the selection of union representatives, generally, see Employment
Coordinator LR-16,001 et seq.
Footnote 60. As to unfair labor practices, generally, see Employment Coordinator
LR-20,001 et seq.
Footnote 61. As to union regulation, generally, see Employment Coordinator
LR-47,001 et seq.
Footnote 62. 29 USCS 206(d)(2); 29 USCS 623(c)(3); 42 USCS 2000e-2(c)(3).
Footnote 64. NLRB v International Longshoremen's Asso. (1974, CA5) 489 F2d 635, 7
BNA FEP Cas 180, 85 BNA LRRM 2433, 7 CCH EPD 9111, 73 CCH LC 14317, cert
den 419 US 1040, 42 L Ed2d 316, 95 S Ct 527, 8 BNA FEP Cas 1142, 87 BNA LRRM
2831, 8 CCH EPD 9789, 76 CCH LC 10647.
Footnote 65. Teamsters, Local 528 (1978) 237 NLRB 258, 99 BNA LRRM 1045, 1978
CCH NLRB 19603.
1124 Liability as an employer

View Entire Section
Unions are covered as employers under Title VII, as persons engaged in commerce, if
they have 15 or more of their own employees. 66 Similarly, unions engaged in
commerce are subject to ADEA liability as employers if they have 20 or more
employees. 67
A union violated Title VII's sex discrimination provisions by paying lower monthly
retirement benefits to male employees under a pension annuity option than it paid to
female beneficiaries. 68 However, Title VII's anti-retaliation provisions 69 did not
protect a black union dues-posting clerk who was discharged after seeking to run in a
political election against her immediate supervisor, the union local's secretary treasurer.
The black woman ran at the behest of black union members who were protesting alleged
union discrimination against blacks. The court held that while Title VII protects
employees from discharge for opposition to unlawful practices, the form of opposition in
this case, a political challenge, was not protected under Title VII. 70
Observation: There is no reason to doubt that unions are also covered as employers,
under the terms of the Immigration Reform and Control Act of 1986, with respect to
the prohibitions against discriminating in hiring based on national origin and
citizenship. 71
Footnotes
Footnote 66. 42 USCS 2000e(a), (b).
Footnote 67. 29 USCS 630(a), (b).
Footnote 68. Shaw v IAM (1980, DC Cal) 24 BNA FEP Cas 995.
1125 Settling the case with the EEOC

View Entire Section

The following are the minimum remedies the EEOC will expect from a conciliation
agreement between it and a union determined to have violated Title VII:
immediate admission or reinstatement of the charging party to membership and
discontinuation of any requirement or practice that restricts the charging party or
similarly situated persons in securing or retaining membership or employment;
the monitoring of the administration of selection and expulsion procedures through
comprehensive reporting requirements;
dissemination of information regarding opportunities and requirements for membership
to the charging party and to similarly situated persons;
the merger of segregated locals, with provisions to ensure minorities and women full
and equal participation in officer selection;
review and revision of referral procedures or establishment of referral procedures if
none exist;
referral of the charging party and affected class members;
a commitment to review and evaluate the merits of every grievance alleging
discrimination, and to vigorously process grievances through every step of the grievance
procedure as warranted until they are resolved;
written notification to each grievant who has raised Title VII issues that processing of
the grievance will not operate as a substitute for the right to file a charge under Title VII;
elimination of the specific factors that brought about the problem and correction of any
factors that might result in future discriminatory handling of grievances;
a commitment to encourage the promotion of equal employment opportunities by
employers;
development of apprenticeship programs where needed;
maintenance of records of all requests submitted by employers or contractors for union
referrals, giving name of contractor, job to be filled, date, time, place, and hourly wage.
72
In addition to the above minimum remedies, the EEOC may try to require a union to:
adopt specific written standards for membership; 73
offer validated examinations for direct journeyman membership at stated intervals
whenever there are applicants, with each applicant being given several months' written
notice of the examination, of the nature and general description of the examination's
contents or copies of the last examination, and of the names of any texts or other
materials that might be helpful in preparing for the examination; 74
not alter or change the employment or referral rights of a minority group applicant for
failure to achieve a passing grade on the membership application. 75
run daily advertisements over a minority radio station or in newspapers to the effect that
the union accepts members and apprentices without regard to race, sex, or national
origin; 76
offer journeyman membership to minority group members and women (1) who are
licensed by city, county, or state agencies to perform their craft, (2) who have 18 months'
experience in the trade, or (3) who are otherwise qualified for membership; 77
request from local governments the names and addresses of all minority workers
possessing a craft license, and invite those persons into membership; 78
eliminate nepotism, for example, by expunging requirements that applicants for
membership be related by blood or marriage to present members, that applicants provide
names of union members to vouch for them, or that applicants be endorsed or approved
by a majority of union members. 79
Footnotes
2. Practices Involving Selection of Representative [1126-1128]
1126 Generally
View Entire Section
The National Labor Relations Act (NLRA) establishes the procedures under which
employees, by secret ballot, may select or reject a labor organization as their exclusive
representative for collective bargaining. 80 The National Labor Relations Board
(NLRB) has the authority to establish reasonable and proper standards for the conduct of
representation elections and to police election campaigns in order to ensure compliance
with estabished rules. 81 In that regard, the NLRB's function is to supervise elections so
that employees have an opportunity to cast their ballots in an atmosphere conducive to a
sober and informed exercise of their statutory rights under the NLRA's without undue
interference. 82
Footnotes
As to the selection of union representatives, generally, see Employment Coordinator
LR-16,001 et seq.
Footnote 81. Collins & Aikman Corp. v NLRB (1967, CA4) 383 F2d 722, 66 BNA
LRRM 2280, 56 CCH LC 12205.
Footnote 82. Sewell Mfg. Co. (1962) 138 NLRB 66, 50 BNA LRRM 1532, 1962 CCH
NLRB 11504.
1127 Effect of racial propaganda on election validity

View Entire Section
The mere mention of a racial issue is not sufficient grounds for setting aside a
representation election under the NLRA. 83 Some degree of consciousness-raising is
permitted in union organizing campaigns among eithnic groups that historically have
been disadvantaged economically, as long as the ethnic message becomes neither the core
of the campaign nor inflammatory. 84
However, the NLRB will not tolerate appeals to
racial prejudice on matters unrelated to election issues. 85 Thus, deliberate attempts to
stress and exacerbate racial feelings with irrelevant and inflammatory appeals can result
in the setting aside of an election. 86
Observation: The principles applicable to racial propaganda are also relevant, in

comparable situations, to toher types of prohibited discrimination, such as those based
on religion or national origin. This is because the NLRA's prohibitions revolve around
a general standard that applies to a wide variety of statements and conduct aimed at
inflaming a pre-election atmosphere.
Footnotes
Footnote 83. Sharnay Hosiery Mills, Inc. (1958) 120 NLRB 750, 42 BNA LRRM 1036.
Footnote 84. NLRB v Sumter Plywood Corp. (1976, CA5) 535 F2d 917, 14 BNA LRRM
3508, 12 CCH EPD 11086, 79 CCH EPD 11532, cert den 429 US 1092, 51 L Ed2d
538, 97 S Ct 1105, 14 BNA FEP Cas 702, 94 BNA LRRM 2643, 13 CCH EPD 11517,
81 CCH LC 13008.
Footnote 85. NLRB v Schapiro & Whitehouse, Inc. (1966, CA4) 356 F2d 675, 9 BNA
Footnote 86. Universal Mfg. Corp. (1966) 156 NLRB 1459, 61 BNA LRRM 1258, 1966
CCH NLRB 20199.
Procedures used by the NLRB to evaluate racial remarks and examples of specific union
appeals are discussed in Employment Discrimination Coordinator 39,123, 39,124.
1128 Discrimination as cause for withholding or revoking certification of labor

organization
View Entire Section
In a representation proceeding, the NLRB is not required to consider allegations of
invidious discrimination, such as racial, national origin, or alienage discrimination,
before certifying a union as a collective bargaining representative, unless inquiry is
required to protect employees from interference with their right to select a representative.
Thus, the Board will not withhold certification on the basis of allegations that the union
does or has practiced discrimination. Instead, an unfair labor practice proceeding against
the union for possible breaches of its duty of fair representation is the proper method for
disposing of allegations of discrimination. 87
At the same time though, the NLRB has ruled that such discrimination may be the basis
for revoking a union's certification. In fact, the most common basis for revoking a
certification is the certified union's failure to represent fairly all employees in a
bargaining unit. 88 Thus, a certification is subject to revocation if the certified union
fails to accord equal and adequate representation to some bargaining unit employees
because of their race, 89 creed, 90 or sex. 91
Footnotes
Footnote 87. Handy Andy, Inc. (1977) 228 NLRB 447, 94 BNA LRRM 1354, 1976-77
CCH NLRB 17938.
As to unfair labor practices, generally, see Employment Coordinator LR-20,001 et seq.
Footnote 88. Chickasaw Hotel Co. (1961) 132 NLRB 1540, 48 BNA LRRM 1555, 1961
CCH NLRB 10307.
Footnote 89. Independent Metal Workers, Locals 1 & 2 (Hughes Tool Co.) (1964) 147
NLRB 1573, 56 BNA LRRM 1289, 1964 CCH NLRB 13250.
Footnote 90. Pacific Maritime Assn. (1954) 110 NLRB 1647, 35 BNA LRRM 1299.
Footnote 91. U.S. Baking Co. (1967) 165 NLRB 951, 65 BNA LRRM 1436, 1967 CCH
NLRB 21548.
3. Membership Practices [1129-1145]
1129 Generally
View Entire Section
Go to Supplement
Under the ADEA and Title VII, race, color, religion, 92 sex, national origin, or age
cannot be the basis for a union's decision to:
exclude or expel an individual from membership; 93
limit, segregate, or classify its membership or applicants for membership; 94
discriminate against any member or applicant because he has opposed an unlawful
practice or taken part in an antidiscrimination proceeding; 95
publish any membership notice or advertisement indicating a preference, limitation,
specification, or discrimination. 96
Consequently, a union violates Title VII by:
excluding blacks from membership because of their race or color; 97
admitting blacks to membership on less favorable terms than whites; 98
accepting transfers by white members from other locals while refusing transfers to
nonwhites; 99
refusing membership to a woman because of her sex; 1
refusing to consider Mexican-Americans for membership, because of their national
origin. 2
Furthermore, since membership in a labor union is a contractual relationship, or at least
one step toward obtaining an employment contract, the right to union membership
without regard to race or color is protected by 42 USCS 1981, in its provision for equal
rights in the making of contracts. 3 This rule applies even if a union is not the
employees' exclusive bargaining agent. 4 A union also violates 1981 by practicing race
discrimination among its members. 5
In addition, a union's membership policies that
discriminate against an individual on the basis of race in the enforcement of an
employment contract, or his enjoyment of all benefits, privileges, terms, and conditions
of the contractual relationship, also violate 1981 6 as amended by the Civil Rights Act
of 1991. 7
Unions also may not violate equal rights and privileges guaranteed to members under the
Labor-Mangement Reporting and Disclosure Act of 1959. 8 Thus, a union violated
certain Spanish-speaking members' rights to equal participation and freedom of speech
and assembly by refusing to provide a qualified translator at all montly membership
meetings to translate the proceedings simultaneously into Spanish. While the
membership had voted against providing a translator, the union could not maintain an
undemocratic rule. 9
Case authorities:
For purposes of participation clause of 42 USCS 2000e-3(a), there is nothing in
statute's wording requiring that charges be valid, or even implied requirement that they be
reasonable. Wyatt v City of Boston (1994, CA1 Mass) 35 F3d 13, 65 BNA FEP Cas
1441.
Footnotes
Footnote 92. Religious objections to union membership are discussed in 1171.
Footnote 93. 29 USCS 623(c)(1); 42 USCS 2000e-2(c)(1).
Footnote 95. 29 USCS 623(d); 42 USCS 2000e-3(a).
Footnote 96. 29 USCS 623(e); 42 USCS 2000e-3(b).
Footnote 97. International Asso. of Heat & Frost Insulators, etc. v Vogler (1969, CA5)
407 F2d 1047, 1 BNA FEP Cas 577, 70 BNA LRRM 2257, 1 CCH EPD 9952, 59 CCH
LC 9195; United States v International Brotherhood of Electrical Workers (1972, DC
Nev) 356 F Supp 104, 5 BNA FEP Cas 187, 6 BNA FEP Cas 388, 5 CCH EPD 8022, 5
CCH EPD 8516.
Footnote 98. Allen v Amalgamated Transit Union (CA8) 554 F2d 876, 14 BNA FEP Cas
Footnote 99. Equal Employment Opportunity Com. v Sheet Metal Workers' International
Asso. (1976, CA2) 532 F2d 821, 12 BNA FEP Cas 755, 11 CCH EPD 10757; Equal
Employment Opportunity Com. v Local 638 (1975, SD NY) 401 F Supp 467, 12 BNA
FEP Cas 712, 10 CCH EPD 10347, supp op (SD NY) 421 F Supp 603, 12 BNA FEP
Cas 742, mod on other grounds (CA2) 532 F2d 821, 12 BNA FEP Cas 755, 11 CCH EPD
10757.
6250.
Footnote 2. International Asso. of Heat & Frost Insulators, etc. v Vogler (1969, CA5) 407
F2d 1047, 1 BNA FEP Cas 577, 70 BNA LRRM 2257, 1 CCH EPD 9952, 59 CCH LC
9195.
Footnote 3. James v Ogilvie (1970, DC Ill) 310 F Supp 661, 2 BNA FEP Cas 697, 2 CCH
EPD 10246.
Footnote 4. Holiday v Red Ball Motor Freight, Inc. (1974, DC Tex) 399 F Supp 81, 11
Footnote 5. Waters v Wisconsin Steel Works of International Harvester Co. (1970, CA7)
427 F2d 476, 2 BNA FEP Cas 574, 2 CCH EPD 10206, 62 CCH LC 9435, cert den
400 US 911, 27 L Ed 2d 151, 91 S Ct 137, 2 BNA FEP Cas 1059, 3 CCH EPD 8032
and on remand (ND Ill) 8 BNA FEP Cas 234, affd in part and revd in part on other
grounds (CA7) 502 F2d 1309, 8 BNA FEP Cas 577, 8 CCH EPD 9658, cert den 425
Footnote 7. P.L. 102-166, 101.
Footnote 8. 29 USCS 411 et seq,
Footnote 9. Zamora v Local 11, Hotel Employees & Restaurant Employees International
Union (1987, CA9) 817 F2d 566, 125 BNA LRRM 2538, 43 CCH EPD 37065, 106
CCH LC 12359.
As to officeholding requirements, see 1174.
1130 Restricting membership below market demand

View Entire Section
A union's attempt to restrict the absolute number of its members below the market's
demand for persons with the members' skills may violate Title VII where there has been a
history of unlawful discrimination in the industry. 10 Union no-entry rules are facially
neutral practices that often, in the context of past discrimination, have an adverse impact
on minorities, and can survive Title VII challenge only if they are justified on the
grounds of business necessity. 11 However, if a limitation on the number of union
members is adopted for a reasonable economic purpose, Title VII does not require an
increase in their numbers even if the union discriminated before the effective date of the
Act. 12
Footnotes
CCH EPD 8516.
Footnote 11. Beavers v International Asso. of Bridge & Structural Iron Workers (1982,
Footnote 12. Dobbins v International Brotherhood of Electrical Workers (1968, DC
Ohio) 292 F Supp 413, 1 BNA FEP Cas 387, 69 BNA LRRM 2313, 1 CCH EPD 9912,
58 CCH LC 9158, supp op (SD Ohio) 2 BNA FEP Cas 180, 2 CCH EPD 10091.
1131 Recruiting practices

View Entire Section
The legality of union membership advertising and recruiting practices turns on whether
the union has a history of discrimination and whether the membership ranks reflect an
imbalance with respect to protected group members. Where union membership is
virtually all white, it has been held unlawful for a union to limit membership information
to union members and other whites. 13 Furthermore, a union violated Title VII where it
did not recruit black members on the same basis as whites to eliminate the effects of
previous discrimination on the basis of race. 14
However, a court has said that Title
VII does not require a union to seek out black members or publicize its admission
policies to the black community in order to remedy discrimination that occurred before
the effective date of Title VII. 15 Nevertheless, where a union had a history of giving
preference to individuals who were related to members, a court ordered the union to
publicize the fact that membership was open to all persons. 16
According to one court, however, a predominantly white union's reputation for racial
discrimination, which deterred black journeymen from applying for membership, and the
union's failure to publicize its nondiscriminatory membership policy, were not in
themselves violations of Title VII. Rejecting the EEOC's "chilling effect" premise of
liability, the court held that a union must itself do something to violate Title VII and does
not violate the Act because someone else thinks it has violated the statute. Also,
rejecting liability based on the failure to publicize nondiscrimination, the court said that it
is not a violation of Title VII for a union to fail to announce its innocence. The court did
indicate that it would have found a violation of the Act if the union itself had spread
rumors of discrimination against blacks. 17
Footnotes
469 F Supp 329, 18 BNA FEP Cas 1560, 19 CCH EPD 9028, 26 FR Serv 2d 1174.
United States v International Brotherhood of Electrical Workers (1972, DC Nev) 356 F
Supp 104, 5 BNA FEP Cas 187, 6 BNA FEP Cas 388, 5 CCH EPD 8022, 5 CCH EPD
8516.
Footnote 14. United States v International Asso. of Bridge, Structural & Ornamental Iron
Workers, Local No. 1 (1971, CA7) 438 F2d 679, 3 BNA FEP Cas 168, 3 CCH EPD
8098, 14 FR Serv 2d 1268, cert den 404 US 830, 30 L Ed 2d 60, 92 S Ct 75, 3 BNA
Footnote 16. United States v Sheet Metal Workers International Asso. (1969, CA8) 416
F2d 123, 2 BNA FEP Cas 127, 2 CCH EPD 10083, 61 CCH LC 9319.
Footnote 17. Equal Employment Opportunity Com. v Sheet Metal Workers, etc. (1978,
DC Md) 463 F Supp 388, 21 BNA FEP Cas 936, 19 CCH EPD 9151.
1132 Application processing

View Entire Section
Title VII requires a uniform and consistent processing of membership applications. It has
been held unlawful for a union to give false, misleading, or incomplete information to
blacks, or to fail or refuse to inform blacks of the procedures for application for
membership. 18 Similarly, a union violated the statute where it engaged in a pattern of
delay and diversion in acting on minority applications for membership. 19
Footnotes
Footnote 18. United States v International Brotherhood of Electrical Workers (1972, DC
Nev) 356 F Supp 104; EEOC Decision No. 77-35 (1977) 21 BNA FEP Cas 1805.
1133 Nepotism in member selection

View Entire Section
A union's attempt to enhance members' family security by restricting membership to the
children and close relatives of current members may be laudable in itself, but it cannot
withstand a Title VII race discrimination charge based on disparate impact where the
current union membership is predominantly white. 20
However, the fact that a large proportion of new members admitted to a predominantly
white union were relatives of current members did not amount to a violation of the Act,
where the preference for relatives did not operate to exclude a disproportionate number
of blacks from membership. 21
Footnotes
Footnote 20. Robinson v Lorillard Corp. (1971, CA4) 444 F2d 791, 3 BNA FEP Cas 653,
3 CCH EPD 8267, 15 FR Serv 2d 119, 21 ALR Fed 453, cert dismd 404 US 1006, 30
L Ed 2d 655, 92 S Ct 573 and cert dismd 404 US 1007, 30 L Ed 2d 655, 92 S Ct 651;
International Asso. of Heat & Frost Insulators, etc. v Vogler (1969, CA5) 407 F2d 1047,
1 BNA FEP Cas 577, 70 BNA LRRM 2257, 1 CCH EPD 9952, 59 CCH LC 9195.
Patterson v Youngstown Sheet & Tube Co. (1979, ND Ind) 475 F Supp 344, 24 BNA
FEP Cas 1087, 21 CCH EPD 30454.
1134 Testing requirements

View Entire Section
Testing for union membership is subject to Title VII's disparate impact rule, under which
facially neutral policies that exclude a disproportionate number of minority group
members are held to violate the Act in the absence of a business necessity justification.
22 Accordingly, written and oral membership testing procedures that have historically
operated to exclude disproportionate numbers of minorities must be validated according
to the Uniform Guidelines on Employee Selection Procedures. 23
Of course, the disparate treatment of nonwhites in the application of membership testing
requirements also violates Title VII. For instance, a union that admitted whites to
membership without requiring a passing score on an entrance examination, but that
insisted that non-whites pass the test, violated the Act. 24
Footnotes
Employee Selection Procedures are discussed at 316 et seq.
1135 Education and experience requirements

View Entire Section
Unions that require a certain amount of job or bargaining unit work experience as a
condition of membership run the risk of violating Title VII for perpetuating the effects of
past discrimination. If a union has engaged in racially discriminatory practices in the
past and exercises substantial control over construction job opportunities, it cannot, as a
condition of membership, require blacks to have experience in the industry 25 or
experience under a collective bargaining agreement between the union and the employer.
26 Because the union has prevented blacks from acquiring experience, conditioning
membership on experience carries forward the effects of past discrimination. 27
A requirement that a prospective union member have a city hoist operator's license and
the ability to operate more than one piece of equipment was held unlawful, because it had
a disproportionate impact on blacks. The requirement was not job-related, because much
of the equipment operated by the union's members did not require a licensed operator.
Also, the union's members did not need to know how to operate multiple pieces of
equipment, because they tended to specialize in the use of particular types of equipment.
28
The EEOC has ruled that a four-year experience requirement (and an alternative
four-year apprenticeship requirement) for union membership violated Title VII where
blacks comprised only 1.2% of the union's membership but 9.5% of the local male labor
force. 29 On the other hand, a predominantly white union's requirement that prospective
members already have a job with a union contractor before being admitted to union
membership was held not to violate Title VII, even though the union contractors
generally hired only union members. The court found that the requirement did not have
an adverse impact on blacks. 30
Footnotes
Footnote 25. Equal Employment Opportunity Com. v International Union of Operating
Engineers (1977, CA2) 553 F2d 251, 14 BNA FEP Cas 870, 13 CCH EPD 11591.
CCH EPD 8516.
CCH EPD 8516.
6592.
1136 Arrest and conviction record disqualifications

View Entire Section
Unions that ask prospective members about previous arrests or criminal convictions or
that predicate membership decisions on the existence of either an arrest or conviction
record are vulnerable to Title VII disparate impact charges, and run the risk of having to
validate the questions or criteria on the grounds of business necessity. The use of an
arrest record inquiry on an application form violated Title VII where no attempt was
made to justify the inquiry as job-related. 31 Furthermore, a union violated the Act by
rejecting a black seaman's application for membership on the basis of a prior arrest for
marijuana possession and a previous felony conviction. The union failed to consider that
the marijuana charge had been dropped and that the applicant had regained Coast Guard
certification as a seaman. Also, the felony conviction occurred while the applicant was a
minor and there were no later convictions. 32
Footnotes
Footnote 31. Reynolds v Sheet Metal Workers (1980, DC Dist Col) 498 F Supp 952, 24
BNA FEP Cas 648, 22 CCH EPD 30739, affd (App DC) 25 BNA FEP Cas 837, 25
CCH EPD 31706.
Footnote 32. EEOC Decision No. 77-23 (June 8, 1977) CCH EEOC Dec 6710.
1137 Maintaining segregated local unions

View Entire Section
A union violates Title VII by maintaining locals that are segregated on the basis of race
33 or sex. 34 A local is considered segregated if it has always been maintained as a
white local with only a token number of black members. 35
A union has a duty under Title VII, where union locals were previously segregated by
race or sex, to publicize for the sake of previously excluded persons the new policy that
desegregates the locals. 36 However, where a union has allowed the existence of
segregated locals, arguably in violation of Title VII, its international does not violate
Title VII by revoking the charter of the smaller, black local and requiring that its
members join the larger, white local. 37
Footnotes
Footnote 33. Musicians' Protective Union v American Federation of Musicians (1971,
DC Pa) 329 F Supp 1226, 9 BNA FEP Cas 276, 77 BNA LRRM 2900, 3 CCH EPD
8303, 66 CCH LC 11931; United States v International Longshoremen's Asso. (1972,
L Ed 2d 300, 93 S Ct 439, 5 BNA FEP Cas 149, 5 CCH EPD 8031; McFadden v
Baltimore S.S. Trade Asso. (1973, DC Md) 352 F Supp 403, 5 BNA FEP Cas 300, 5
CCH EPD 8443, affd (CA4) 483 F2d 452, 6 BNA FEP Cas 599, 6 CCH EPD 8809;
CCH EPD 10199, 62 CCH LC 9428; Williams v New Orleans S.S. Asso. (1972, ED
La) 341 F Supp 613, 4 BNA FEP Cas 666, 4 CCH EPD 7705.
Footnote 34. Evans v Sheraton Park Hotel (1974) 164 App DC 86, 503 F2d 177, 8 BNA
284; Williams v New Orleans S.S. Asso. (1972, DC La) 341 F Supp 613, 4 BNA FEP
Cas 666, 4 CCH EPD 7705.
Footnote 36. EEOC Decision No. 76-5 (July 25, 1975) CCH EEOC Dec 6600.
Footnote 37. Long v Georgia Kraft Co. (1970, DC Ga) 328 F Supp 681, 2 BNA FEP Cas
658, 3 BNA FEP Cas 223, 2 CCH EPD 10208, 3 CCH EPD 8155, 62 CCH LC
9437, revd on other grounds (CA5) 450 F2d 557, 3 BNA FEP Cas 1222, 4 CCH EPD
7556.
1138 International union's liability for local union's discriminatory membership

practices
View Entire Section

Common law agency principles that are applied to determine whether an international
union is liable under Title VII for a local union's discrimination 38 have been applied to
hold an international liable for its local's discriminatory membership practices. Where
the international actively participated in and approved a local's discriminatory
membership procedures, there was enough to establish an agency relationship between
the two and to hold the international liable for the discriminatory requirement that
applicants complete a union-supervised education program before they could take a
journeyman examination. 39
Footnotes
Footnote 38. 1115.
CCH EPD 39199.
b. Proof [1139-1141]
1139 Statistical evidence of violations

View Entire Section
Statistical evidence can be used to establish a prima facie case of discrimination in union
membership. A small minority membership in a union in a demographic area containing
a substantial number of minority workers raises an inference that the imbalance is the
result of discrimination. 40
Prima facie cases of union membership discrimination
were established with evidence that:
only 7.5% of a union's newly admitted journeymen were black, compared to a 30%
black population in the union's geographic jurisdiction; 41
the union's 1,318 members included only two blacks, there were only three blacks
among its 255 apprentices, and just two of the 3,487 persons referred by the union for
work in the trade in the preceeding year were black; 42
in an area with a 16.2% minority population, the union's membership was only 2.8%
minority; 43
union membership was 3.9% black and 4.4% minority, while the local labor force was
11% black and 11.5% minority. 44
One court has ruled, however, that to make a prima facie case for class purposes, as
distinguished from individual purposes, the plaintiff has the burden of showing the
presence of a significant number of members of the protected group possessing the basic
skill of the particular trade involved, since it cannot be assumed that a certain number of
minority group members or women in the population have the skill in question. 45
Footnotes
Footnote 40. Second CircuitEEOC v International Union of Operating Engineers
(1977, CA2) 553 F2d 251, 14 BNA FEP Cas 870, 13 CCH EPD; 11591.
Third CircuitUnited States v United Asso. of Journeymen & Apprentices, etc. (1973,
DC NJ) 364 F Supp 808, 6 BNA FEP Cas 366, 6 BNA FEP Cas 385, 6 CCH EPD 8797,
6 CCH EPD 8798; Pennsylvania v International Union of Operating Engineers (1978,
ED Pa) 469 F Supp 329, 18 BNA FEP Cas 1560, 19 CCH EPD 9028, 26 FR Serv 2d
1174, motion den (ED Pa) 27 FR Serv 2d 974.
Sixth CircuitUnited States v International Brotherhood of Electrical Workers (1970,
Ninth CircuitUnited States v Ironworkers Local 86 (1971, CA9) 443 F2d 544, 3 BNA
Footnote 41. United States v United Asso. of Journeymen & Apprentices, etc. (1973, DC
NJ) 364 F Supp 808, 6 BNA FEP Cas 366, 6 BNA FEP Cas 385, 6 CCH EPD 8797, 6
CCH EPD 8798.
Footnote 42. United States v International Brotherhood of Electrical Workers (1970,
Forms: Allegations in complaintRacial discrimination by labor
organizationDiscriminatory referral system [42 USCS 2000e-2(c); FRCP 8(a)]. 12
Footnote 45. Dobbins v International Brotherhood of Electrical Workers (1968, SD Ohio)
CCH LC 9158, supp op (SD Ohio) 2 BNA FEP Cas 180, 2 CCH EPD 10091.
1140 Appropriate demographic area for statistical proof

View Entire Section
In a number of cases involving attempts to establish a prima facie case of union
discrimination through statistical evidence, the courts have dealt with various issues
arising out of what constitutes the appropriate demographic area.
It has been said that the appropriate demographic area is that region from which the
union draws its members, and not the union's geographic jurisdiction, since the latter
standard would give the union an opportunity to engage in jurisdictional gerrymandering
and the ability to frustrate the purposes of Title VII. 46 However, where the
jurisdictional area and the area from which the union draws its members are substantially
the same, the jurisdictional area may be used. 47
U.S. Census Bureau Statistics are not always a reliable basis for statistical analyses or
comparisons of union membership and minority representation in the relevant labor
market. For instance, U.S. Census data for a particular SMSA (Standard Metropolitan
Statistical Area) identified by race and occupation were not persuasive evidence of the
number of blacks or whites in the area who had sufficient skill in the occupation to meet
the union's membership requirements. 48
Footnotes
organizationExclusion from membership and training programDiscriminatory testing
requirements [42 USCS 2000e-2(c); FRCP 8(a)]. 12 Federal Procedural Forms, L Ed,
Footnote 47. United States by Mitchell v United Asso. of Journeymen & Apprentices,
etc. (1969, DC Ind) 314 F Supp 160, 2 BNA FEP Cas 81, 2 CCH EPD 10093, 61 CCH
LC 9329; United States v Enterprise Asso. of Steam, etc. (1972, SD NY) 347 F Supp
Footnote 48. Equal Employment Opportunity Com. v Sheet Metal Workers etc. (1978,
1141 Nonstatistical evidence of violations

View Entire Section

Nonstatistical evidence tending to support a finding of union membership discrimination
includes:
the union's failure to respond to requests from members of protected classes for
application forms or for admission; 49
the union's different processing of applications from whites and those from blacks; 50
the union agent's failure to issue permits to nonunion men who are black or of Puerto
Rican ancestry; 51
the union's failure to organize the employees of black contractors, and its disapproval of
its members' working on construction projects alongside black contractors or craftsmen;
52
the union's reputation for discriminatory practices in the minority community, 53 which
is admissible to show why minorities did not apply for membership and why those who
did apply did not pursue their applications vigorously, 54 and to define the nature and
extent of the appropriate relief. 55
Footnotes
F2d 123, 2 BNA FEP Cas 127, 2 CCH EPD 10083, 61 CCH LC 9319; Rios v
Enterprise Asso. Steamfitters Local Union (1971, SD NY) 326 F Supp 198, 3 BNA FEP
Cas 349, 3 CCH EPD 8177.
Footnote 50. Dobbins v International Brotherhood of Electrical Workers (1968, SD Ohio)
CCH LC 9158.
Footnote 51. Rios v Enterprise Asso. Steamfitters Local Union (1971, SD NY) 326 F
F2d 123, 2 BNA FEP Cas 127, 2 CCH EPD 10083, 61 CCH LC 9319; Dobbins v
International Brotherhood of Electrical Workers (1968, SD Ohio) 292 F Supp 413, 1
BNA FEP Cas 387, 69 BNA LRRM 2313, 1 CCH EPD 9912, 58 CCH LC 9158, supp
op (SD Ohio) 2 BNA FEP Cas 180, 2 CCH EPD 10091.
CCH EPD 8516.
Footnote 54. United States by Mitchell v United Asso. of Journeymen & Apprentices etc.
(1969, DC Ind) 314 F Supp 160, 2 BNA FEP Cas 81, 2 CCH EPD 10093, 61 CCH LC
9329; United States v International Brotherhood of Electrical Workers (1972, DC Nev)
356 F Supp 104, 5 BNA FEP Cas 187, 6 BNA FEP Cas 388, 5 CCH EPD 8022, 5 CCH
EPD 8516.
CCH EPD 8516.
c. Judicial Remedies [1142-1145]
1142 Against discriminatory membership criteria

View Entire Section
As a remedy for discriminatory admissions policies, courts in Title VII cases will order
unions to develop objective, trade-related membership criteria. 56 Specifically, unions
have been ordered to:
admit to membership anyone who obtained a passing grade on a journeymen's
examination and paid the necessary fee; 57
admit anyone with a certain amount of experience in the relevant work category upon
payment of the standard initiation fee; 58
revise admission requirements to make them no more stringent than a specified amount
of experience in the trade, successful completion of a journeyman's examination, and
residence in the relevant geographical district; 59
revise journeymen's examinations to make them objective in nature; 60
offer examinations in each skill classification once every three months, with each
applicant to be given one month's notice of the exam, a general description of the exam,
and the names of any texts or materials that might prove useful to someone preparing for
the exam; 61
eliminate votes by union members or prior approval by boards, officers, or committees
as prerequisites to membership. 62
Footnotes
LC 9195.
9329.
Footnote 58. United States v International Asso. of Bridge, etc. (1970, WD Wash) 315 F
CCH EPD 8516.
F2d 123, 2 BNA FEP Cas 127, 2 CCH EPD 10083, 61 CCH LC 9319.
CCH EPD 8516.
Footnote 62. Fifth CircuitInternational Asso. of Heat & Frost Insulators, etc. v Vogler
9952, 59 CCH LC 9195.
Seventh CircuitUnited States by Mitchell v United Asso. of Journeymen &
Apprentices etc. (1969, DC Ind) 314 F Supp 160, 2 BNA FEP Cas 81, 2 CCH EPD
10093, 61 CCH LC 9329.
Ninth CircuitUnited States v International Brotherhood of Electrical Workers (1972,
DC Nev) 356 F Supp 104, 5 BNA FEP Cas 187, 6 BNA FEP Cas 388, 5 CCH EPD
8022, 5 CCH EPD 8516.
1143 Against discriminatory application processing

View Entire Section
As a remedy for Title VII violations, some courts have ordered unions to formalize their
membership application procedures to make them less subject to discriminatory
manipulation. For example, a union has been ordered to require all persons who enter its
office seeking employment to file an application for membership and referral, to be kept
as a permanent part of the person's file, and to make all applicants sign a register with
their name, their race, the date, and an indication of the skills they possess. 63
Footnotes
1144 Against segregated union locals; merger

View Entire Section
The proper remedy when dual segregated locals have been maintained is to order their
merger. 64
In fact, the Fifth Circuit has reversed a district court decision that refused
to issue an injunction merging racially segregated locals, holding that the trial court had
no discretion to refuse an injunction once it found that the segregation resulted in
employment discrimination in violation of Title VII. 65
Footnotes
Footnote 64. Fourth CircuitUnited States v International Longshoremen's Asso. (1972,
Fifth CircuitLong v Georgia Kraft Co. (1971, CA5) 450 F2d 557, 3 BNA FEP Cas
1222, 4 CCH EPD 7556; EEOC v International Longshoremen's Asso. (1980, CA5)
DC CircuitEvans v Sheraton Park Hotel (1974) 164 App DC 86, 503 F2d 177, 8 BNA
Footnote 65. Equal Employment Opportunity Com. v International Longshoremen's
Asso. (1975, CA5) 511 F2d 273, 9 CCH EPD 10061, 10 BNA FEP Cas 545, cert den
423 US 994, 46 L Ed 2d 368, 96 S Ct 421, 10 CCH EPD 10511, 11 BNA FEP Cas
930.
1145 --Transitional protective measures ordered

View Entire Section
Some courts have imposed transitional protective measures to prevent one group from
dominating the merged local. 66
For example, transitional measures have included:
provisions that within one month prior to merger, the members of the black local elect a
general vice president, a trustee, and 10 other persons who would serve as stewards and
members of the Executive Board of the merged local for a term of two years, after which
the 12 positions would cease to exist; the Executive Board of the merged local would
consist of 95 members for a period of two years, after which it would revert to a
membership of 83; during the two-year transition period, the general vice president and
the trustee elected from the former black local would be invited to attend all meetings of
the officers of the merged local or of any other subgroup of the Executive Board that
might exercise interim supervisory responsibility between meetings of the full Executive
Board; if, during the two-year transition period, any office filled by a former member of
the black local became vacant for whatever reason, it would be filled by election at a
separate caucus of former members of the black local; during the two-year transition
period, the merged local's negotiating committee and grievance committee would consist
of the local's officers, including the new general vice president and trustee; all other
committees appointed during the transition period would include one member of the
former black local if the committee had up to six members, and at least two former
members of the black local if the committee had 6 to 11 members; and, during the
transition period, whenever there was an election of delegates to a convention or
conference, at least one delegate should be elected separately by the former members of
the black local. 67
provisions that the presidents of the individual locals would arrange a joint meeting for
such purposes as receiving nomination petitions for officers of the consolidated union
and establishing uniform local dues; the president, vice president, and secretary should
not all come from the same former segregated local in any election held within five years
after the court order was entered; the three slots on the merged local's Board of Trustees
between the two former locals should be apportioned; the Delegate and Alternate
Delegate should each come from a different former local; and the combined union's
Legislative Representative and Alternate Legislative Representative should each come
from a different former local. 68
Footnotes
Footnote 66. United States v Chesapeake & O. R. Co. (1971, ED Va) 4 CCH EPD
7637, vacated in part on other grounds (CA4) 471 F2d 582, 5 BNA FEP Cas 308, 5 CCH
EPD 8090, cert den 411 US 939, 36 L Ed 2d 401, 93 S Ct 1893, 5 BNA FEP Cas 862;
CCH EPD 10199, 62 CCH LC 9428; English v Seaboard C. L. R. Co. (1972, SD Ga)
Footnote 67. Hicks v Crown Zellerbach Corp. (1970, ED La) 310 F Supp 536.
Footnote 68. United States v Chesapeake & Ohio R. Co. (1971, DC Va) 4 CCH EPD
7637, vacated in part on other grounds (CA4) 471 F2d 582, 5 CCH EPD 8090, 5 BNA
FEP Cas 308, cert den 411 US 939, 36 L Ed 2d 401, 93 S Ct 1893, 5 BNA FEP Cas
862.
1146 --Transitional protective measures not ordered

View Entire Section
Transitional protective measures are not always ordered. For example, in a Fifth Circuit
case, an all-black union (which had rejected the merger concept originally but had been
required to accept it by its international) went to federal court seeking protective
measures such as the establishment of new union offices, the placement of black
members on existing committees of the union, and recognition of the right of
predominantly black crews to select their own shop stewards. These protections were
denied, because the evidence showed that blacks had been elected as union officers,
placed on the combined union's negotiating committee, and appointed as shop stewards
in the year following the merger, and because the merger had not been originally
court-ordered. 69
Footnotes
Footnote 69. Long v Georgia Kraft Co. (1971, CA5) 450 F2d 557.
1147 Other judicial remedies

View Entire Section
In addition to the remedies, 70 other measures courts have instituted to remedy
discriminatory union membership policies include:
adjustment of initiation fees and payment plans; 71
public notice of union practices and procedures, 72 including notice directed
specifically to members of a protected class; 73
imposition of numerical goals and quotas; 74
orders directing unions to offer immediate membership to specific individuals denied
admission on impermissible bases; 75
the appointment of an administrator with broad powers to effectuate orders regarding
union membership practices. 76
However, in one case, the court rejected a suggestion that a union be required to admit all
eligible blacks to membership within 180 days after they attained eligibility, and instead
accepted a union proposal, as reasonable and adequate, that blacks be notified of their
eligibility within 30 days after completion of their probation, but that actual admission
occur at the next regular initiation in accordance with past union practice. 77
Courts can award compensatory and punitive damages under Title VII, the ADA, and
Section 501 of the Rehabilitation Act of 1973 for unlawful intentional discrimination
under those statutes, in addition to other available equitable relief. Further, when a
court's order of relief against a union, after a finding of discrimination, is disobeyed, it
may order additional relief in the form of a finding of contempt both to coerce future
compliance and remedy past noncompliance. 78
Footnotes
Footnote 70. 1142-1144.
F2d 123, 2 BNA FEP Cas 127, 2 CCH EPD 10083, 61 CCH LC 9319; United States v
International Asso. of Bridge, etc. (1970, WD Wash) 315 F Supp 1202, 2 BNA FEP Cas
741, 2 CCH EPD 10267.
9329; United States v International Asso. of Bridge, etc. (1970, WD Wash) 315 F Supp
1202, 2 BNA FEP Cas 741, 2 CCH EPD 10267; United States v International
Brotherhood of Electrical Workers (1972, DC Nev) 356 F Supp 104, 5 BNA FEP Cas
187, 6 BNA FEP Cas 388, 5 CCH EPD 8022, 5 CCH EPD 8516.
Supp 1202, 2 BNA FEP Cas 741, 2 CCH EPD 10267; United States v International
Footnote 74. Rios v Enterprise Asso. Steamfitters Local etc. (1974, CA2) 501 F2d 622, 8
LC 9195; United States by Mitchell v United Asso. of Journeymen & Apprentices etc.
9329.
Footnote 76. EEOC v Sheet Metal Workers' International Asso. (1976, CA2) 532 F2d
Footnote 77. EEOC v International Union of Elevator Constructors (1976, ED Pa) 398 F
BNA FEP Cas 81, 12 CCH EPD 11105 and mod on other grounds (ED Pa) 20 BNA
Footnote 78. Local 28 of Sheet Metal Workers' International Asso. v EEOC (1986) 478
Annotation: Apportionment among defendants of monetary awards to plaintiffs in suit
under Title VII of the Civil Rights Act of 1964 (42 USCS 2000e et seq.), 58 ALR
Fed 363.
4. Apprenticeship Practices [1148-1158]
1148 Generally
View Entire Section
Go to Supplement
It is unlawful under Title VII for any labor organization to discriminate against an
individual because of his race, color, religion, sex, or national origin in admission to, or
employment in, any program established to provide apprenticeship or other training. 79
Regulations issued under the National Apprenticeship Act of 1937 80 also forbid
discrimination because of race, color, religion, national origin, or sex in apprenticeship
programs registered with the Department of Labor. 81
Consequently, it is an unlawful employment practice for a union to:
apply higher apprenticeship standards to blacks on account of their race or more
stringent procedures toward blacks than are applied to whites; 82
refuse to accept women as apprentice trainees; 83
exclude a white person from its apprenticeship program as a cover for planned similar
action against blacks. 84
Regulations:
29 CFR 1625.21, added in 1996, provides that all apprenticeship programs are subject
to the prohibitions of the Age Discrimination in Employment Act of 1967.
Footnotes
organizationExclusion from membership and training programDiscriminatory testing
requirements [42 USCS 2000e-2(c); FRCP 8(a)]. 12 Federal Procedural Forms, L Ed,
Footnote 80. 29 USCS 50, discussed at 892 et seq.
CCH EPD 8516.
Cas 605.
1149 Restricting positions below market demand

View Entire Section
Restricting the number of apprentices below the needs of the labor market can have the
effect of perpetuating past discrimination. The artificial limitation of apprentice
membership far below the number necessary for the particular trade is, itself, a
discriminatory pattern or practice, if adopted by a predominantly white union that has a
history of discrimination. 85 The EEOC found limitations on the number of apprentices
to be violative of Title VII where the limitations served no business purpose other than to
preserve future work opportunities for incumbent journeymen union members and the
percentage of minorities in the union's membership was disproportionately low in
comparison with the percentage of minorities in the relevant workforce. 86 However, if a
limitation on the number of apprentices is adopted for a reasonable economic purpose, it
has been held that Title VII does not require an increase in the number of apprentices,
even if the union discriminated before the effective date of the statute. 87
Footnotes
Footnote 85. Gibson v Supercargoes & Checkers of International Longshoremen's &
Warehousemen's Union (1976, CA9) 543 F2d 1259, 13 BNA FEP Cas 997, 12 CCH EPD
11215, 22 FR Serv 2d 461, 37 ALR Fed 1; Equal Employment Opportunity Com. v
Local 638 (1975, SD NY) 401 F Supp 467, 12 BNA FEP Cas 712, 10 CCH EPD 10347,
supp op (SD NY) 421 F Supp 603, 12 BNA FEP Cas 742, mod on other grounds (CA2)
532 F2d 821, 12 BNA FEP Cas 755, 11 CCH EPD 10757; United States v International
Cas 1793; EEOC Decision No. 77-35 (1978) 21 BNA FEP Cas 1805.
1150 Recruiting practices

View Entire Section

Apprenticeship recruiting practices that limit dissemination of training opportunity
information to current union members can have a discriminatory effect. Where union
membership was virtually all white, a court held that it was a violation of Title VII for the
union and its apprenticeship committee to limit information about apprenticeship training
to union members and other whites. 88 Furthermore, the EEOC has ruled that a union's
failure to adequately publicize apprenticeship opportunities to the minority communities
violated Title VII, where only .4% of the union's journeymen were black and 4% were
Spanish-surnamed Americanswhile blacks made up 9.5% of the local labor force and
Spanish-surnamed Americans made up 15.9%and where completion of the
apprenticeship program was generally a prerequisite to journeyman status. 89
Department of Labor regulations governing registered apprenticeship programs detail
required affirmative action plans, outreach, and positive recruitment practices that would
reasonably be expected to increase minority and female participation in apprenticeship
programs. 90
Footnotes
CCH EPD 8516.
Footnote 90. 29 CFR 30.4(c), discussed at 700 et seq.
1151 Nepotism in apprentice selection

View Entire Section
Nepotism in selecting apprenticeship program participants is consistently held to violate
Title VII, where the union has a history of discrimination or is virtually all-white.
Nepotistic policies were held to violate Title VII where:
the present effect of a policy of restricting apprenticeship to close relatives living in the
households of union members, in view of the union's history of pre- and post-Act
discrimination, was to exclude blacks and Mexican-Americans from admission; 91
a virtually all-white union and apprenticeship committee with a history of racial
discrimination gave preference to relatives of union members and union contractors in
admission to training programs; 92

a preference for sons of union members or those who worked for a particular employer
perpetuated past discriminatory practices and had a chilling effect on minority applicants
because membership was predominantly white. 93
A union's funding of cram courses for sons and nephews of present members in order to
prepare them for apprenticeship admissions examinations has also been held illegal as a
preferential practice. 94
Footnotes
Footnote 91. Asbestos Workers, Local 53 v Vogler (1969, CA5) 407 F2d 1047.
CCH EPD 8516; Equal Employment Opportunity Com. v Lithographers &
Photoengravers International Union (1975, DC Md) 412 F Supp 530, 19 BNA FEP Cas
1234, 11 CCH EPD 10735.
Footnote 93. Patterson v Youngstown Sheet & Tube Co. (1979, ND Ind) 475 F Supp 344.
Footnote 94. Equal Employment Opportunity Com. v Sheet Metal Workers' International
Asso. (1976, CA2) 532 F2d 821, 12 BNA FEP Cas 755, 11 CCH EPD 10757, later app
1152 Testing requirements

View Entire Section
Testing procedures for determining admission to apprenticeship programs are subject to
Title VII strictures under the disparate impact theory. 95 A written test given to
apprenticeship applicants was found to have adverse impact against non-whites, based on
a pass rate of 41.37% for whites, compared to a pass rate of 10.37% for blacks and
11.11% for Spanish-surnamed applicants. The court found that the test was not
job-related, despite evidence that it was widely used, professionally designed,
administered by a reputable testing institution, and reasonably related to measuring the
aptitudes it was designed to measure. The court insisted on strict adherence to the
Uniform Guidelines on Employee Selection Procedures. 96 Similarly, a union violated
the Act where it required applicants for apprenticeship as electricians to pass an aptitude
test (General Aptitude Test Battery) that disqualified 13.8% of the white applicants and
34.1% of the black applicants tested. Find- ing an adverse impact against black
applicants, the court held that the union failed to validate the tests in accordance with the
selection procedure guidelines. 97 Another court held that it was unlawful for a union or
apprenticeship committee to have had discriminated on the basis of race in the past and to
have had applied few, if any, standards to whites seeking apprenticeship training to apply
to blacks standards that were more stringent than those previously applied to whites. 98
Also, a written aptitude test administered as part of the selection procedures of a skilled
trade apprenticeship program violated Title VII based on disparate impact, even though
the test had been submitted to the EEOC and the agency failed to object to its use. The
court said that administrative inaction is not a proper basis for presuming the
job-relatedness of selection criteria. 99
Footnotes
F2d 622, 8 BNA FEP Cas 293, 8 CCH EPD 9488, on remand (SD NY) 400 F Supp
As to the Uniform Guidelines on Employee Selection Procedures, generally, see 316
et seq.
CCH EPD 8798.
CCH EPD 8516.
Footnote 99. Hameed v International Asso. of Bridge, etc. (1980, CA8) 637 F2d 506, 24
1153 Education and experience requirements

View Entire Section
Apprenticeship selection criteria based on education or experience are subject to a Title
VII disparate impact challenge. 1
These requirements often have an adverse impact on minority group members. For
example, in two Eighth Circuit cases, the requirement of a high school education, or its
equivalent, as a prerequisite to admission to skilled trades apprenticeship programs, was
held to have a disproportionate impact on blacks. Both cases involved the same relevant
labor market, in which 27.9% of black males over 14 and 49.1% of white males over 14
had completed four years of high school. 2
Once the plaintiff has proved adverse impact, the burden shifts to the union to justify the
requirements on the basis of business necessity; i.e., to demonstrate that they bear a
reasonable relationship to the skills required for the job. A federal district court in
Indiana held that requiring a high school education for admission to an apprenticeship
program violated Title VII, because it excluded blacks at a substantially higher rate than
whites, and was not necessary for successful performance in the training program or as a
craftsman. Although apprenticeship programs may require a certain level of reading and
mathematical ability, the court pointed out that a high school degree does not so clearly
indicate that an applicant has the necessary reading and mathematical skills to justify
requiring applicants to be high school graduates. 3
Footnotes
Cas 712, 16 CCH EPD 8315, on remand (ED Mo) 500 F Supp 176, 24 BNA FEP Cas
30 CCH EPD 33034, cert den (US) 74 L Ed 2d 88, 103 S Ct 97, 29 BNA FEP Cas
1560, 30 CCH EPD 33097 and affd without op (CA8) 676 F2d 705, 28 BNA FEP Cas
1818, 30 CCH EPD 33034 and affd without op (CA8) 676 F2d 705, 28 BNA FEP Cas
1818, 30 CCH EPD 33034; Hameed v International Asso. of Bridge, etc. (1980, CA8)
Footnote 3. Patterson v Youngstown Sheet & Tube Co. (1979, ND Ind) 475 F Supp 344,
1154 Age requirements

View Entire Section
Go to Supplement
Age limitations on entry into apprenticeship programs are subject to Title VII challenge.
A union's age limitation violated Title VII where it was for entry into a brickmason
apprenticeship program to applicants aged 22 and under or age 24 with military service
credit. The age limitations, even if facially neutral, violated the Act by perpetuating the
effects of past discrimination, because blacks who were discriminatorily denied entrance
into the program in the past, on the basis of race, were disqualified for admission later
because of their age. 4
Age limitations on apprenticeship or training programs may also create problems under
the Age Discrimination in Employment Act. Although the EEOC says that these
requirements are not affected by the ADEA if certain conditions are satisfied, 5 a federal
district court in New York has held that the EEOC regulation is invalid. 6
1154 ----Age requirements [SUPPLEMENT]
Regulations:
29 CFR 1625.21, added in 1996, provides that all apprenticeship programs are subject
to the prohibitions of the Age Discrimination in Employment Act of 1967. 29 CFR
1625.13 was removed.
Footnotes
Footnote 4. Patterson v Youngstown Sheet & Tube Co. (1979, ND Ind) 475 F Supp 344,
Footnote 6. Quinn v New York State Electric & Gas Corp. (1983, ND NY) 569 F Supp
1155 Maintaining segregated apprenticeship programs

View Entire Section
A union's maintenance of a minority training program separate from a standard
apprenticeship program can have Title VII consequences. For example, a union that
maintained a minority training program that was primarily black, separate from its
primarily-white apprenticeship program, violated Title VII by paying lower wages to the
minority program participants based on a discriminatory high school diploma
requirement. 7
Footnotes
Footnote 7. Rule v International Asso. of Bridge, etc. (1979, ED Mo) 471 F Supp 1335,
20 BNA FEP Cas 448, 20 CCH EPD 30254, vacated on other grounds (CA8) 637 F2d
b. Proof and Remedies in Apprenticeship Cases [1156-1158]
1156 Methods of proof

View Entire Section
Union discrimination in selecting apprentices can be made out using either the disparate
impact or the disparate treatment theory of discrimination. 8 A prima facie case can be
made by the use of statistics, 9 or by demonstrating that the union exercises subjective
and nonreviewable discretion in selecting apprentices and that white applicants fare
significantly better than black applicants. 10 Union discrimination in apprenticeship
may also be shown by evidence that:
a black person was qualified, that he applied and was told that there was no vacancy,
and that within a short time thereafter white applicants were selected; 11
the union has no black members and nepotism plays a significant part in the selection of
apprentices;
a summer employment program is limited to sons of union members, thus denying black
youths the opportunity to gain approved work experience;
information concerning the program is disseminated only by word of mouth, which,
because of the all-white membership of the union, has the effect of preventing blacks
from obtaining the information; and
the union has a discriminatory reputation in the black community, which accounts for
the small number of blacks applying for the apprentice program. 12
Footnotes
Footnote 9. United States v Enterprise Asso. of Steam, etc. (1973, SD NY) 360 F Supp
F2d 622, 8 BNA FEP Cas 293, 8 CCH EPD 9488; Hameed v International Asso. of
Bridge, etc. (1980, CA8) 637 F2d 506, 24 BNA FEP Cas 352, 24 CCH EPD 31392.
As to the use of statistics in apprenticeship cases, see 1157.
CCH EPD 8516; Reynolds v Sheet Metal Workers (1980, DC Dist Col) 498 F Supp
952, 24 BNA FEP Cas 648, 22 CCH EPD 30739, affd (App DC) 702 F2d 221, 25 BNA
9329.
9329.
1157 Statistical evidence of violations

View Entire Section
Statistics may be used to make out a Title VII prima facie case of discrimination in the
selection of apprentices. 13 For example, selection criteria for admission to an
apprenticeship program had a statistically significant disproportionate impact on blacks
sufficient to establish a prima facie violation of Title VII, where 98% of the white
applicants were eligible for admission but only 84% of the black applicants were eligible.
A prima facie violation of Title VII was also established where 69% of whites who
completed the application process were admitted, but only 29% of blacks who completed the process were admitted. 14 The use of an interview in selecting apprentices
also violated Title VII, because only 19.9% of blacks who reached the interview stage
were accepted, compared to 41.1% of whites. Also, the interview process was
excessively subjective and unvalidated. 15
Footnotes
Footnote 14. Hameed v International Asso. of Bridge, etc. (1980, CA8) 637 F2d 506, 24
Footnote 15. Reynolds v Sheet Metal Workers (1980, DC Dist Col) 498 F Supp 952, 24
BNA FEP Cas 648, 22 CCH EPD 30739, affd (App DC) 25 BNA FEP Cas 837, 25
CCH EPD 31706.
1158 Judicial remedies for discriminatory apprenticeship practices

View Entire Section
Remedies for discrimination by unions in the operation of apprenticeship programs have
included:
the imposition of objective criteria for the selection of apprentices. 16
a reduction in the length of the apprenticeship program where it is proved that the
program is longer than necessary. 17
the waiving of age requirements for apprentices. 18
the indenturing of specific minority group members. 19

the publication of revised apprenticeship standards. 20
special tutoring programs for minorities within the apprenticeship program. 21
the recruitment of minority candidates prior to the examination for apprenticeship
applicants. 22
participation in a governmental minority employment and training program by agreeing
to use trainees provided by the program. 23
the appointment of an administrator with broad powers over the apprenticeship
program. 24
Observation: Courts can award compensatory and punitive damages under Title VII,
the ADA, and Section 501 of the Rehabilitation Act of 1973 for unlawful intentional
discrimination under those statutes, in addition to other available equitable relief. 25
Footnotes
Footnote 16. Second CircuitEEOC v Sheet Metal Workers' International Asso. (1976,
Sixth CircuitSims v Sheet Metal Workers International Asso. (1972, ND Ohio) 353 F
Supp 22, 5 BNA FEP Cas 557, 5 CCH EPD 8081, affd in part and remanded in part on
other grounds (CA6) 489 F2d 1023, 6 BNA FEP Cas 1141, 6 CCH EPD 9035.
Seventh CircuitUnited States by Mitchell v United Asso. of Journeymen &
Apprentices etc. (1969, DC Ind) 314 F Supp 160, 2 BNA FEP Cas 81, 2 CCH EPD
10093, 61 CCH LC 9329.
8022, 5 CCH EPD 8516.
Footnote 17. United States v Local Union No. 3, International Union of Operating
Engineers (1972, ND Cal) 4 BNA FEP Cas 1088, 4 CCH EPD 7944, attorney's fees
awarded (ND Cal) 6 BNA FEP Cas 984, 6 CCH EPD 8946.
Footnote 18. EEOC v United Asso. of Journeymen, etc. (1970, SD Ohio) 311 F Supp
468, 2 BNA FEP Cas 529, 2 CCH EPD 10205, 62 CCH LC 9434, vacated on other
grounds (CA6) 438 F2d 408, 3 BNA FEP Cas 193, 3 CCH EPD 8110, cert den 404 US
Footnote 19. Vogler v McCarty, Inc. (1970, ED La) 2 BNA FEP Cas 491, 2 CCH EPD
10182, order mod on other grounds (ED La) 4 BNA FEP Cas 11, 4 CCH EPD 7578,
9329.
5. Job Referral Practices [1159-1161]
1159 Generally
View Entire Section
Both Title VII and the ADEA prohibit unions from classifying or refusing to refer
individuals for employment in any way that would deprive them of employment
opportunities or otherwise adversely affect their status as employees because of their
race, color, religion, sex, national origin, or age. 26 Furthermore, a union violates 42
USCS 1981 by practicing race discrimination among those whom it refers for
employment. 27 Union referral practices and policies that discriminate on the basis of
race in the making or enforcement of an employment contract, or in an individual's
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship, also violate 1981, 28 as amended by the Civil Rights Act of 1991. 29 In
addition, a contractor working to meet its affirmative action obligations may properly
request a union with whom it has employee referral arrangements to agree to be
incorporated in the contractor's affirmative action plan. 30
Although it has been said that a union is not required to seek out individuals for job
referral or publicize its job referral policies generally or to the black community, 31 it
has also been held that even if a union is not the exclusive representative of workers, it
has a duty to refer them for employment fairly and without discrimination. 32
An international union has an affirmative duty, in some circumstances, to oppose a local
union's discrimination, as when an international was regularly notified of referral
discrimination charges against a local and failed to investigate, regardless of whether the
plaintiff complained of the conduct to the international. 33
Union referral cases may be brought under either the disparate impact or the disparate
treatment theory of discrimination. Union referral practices that are facially neutral may
be illegal if they perpetuate the effects of past discrimination into the present, or if they
have an otherwise disparate impact against minority group members. Disparate treatment
of particular minority group members or particular protected classes in referrals for
employment is also unlawful in appropriate circumstances. 34
Footnotes
Footnote 27. Ingram v Madison Square Garden Center, Inc. (1982, SD NY) 535 F Supp
1082, 32 BNA FEP Cas 548, 29 CCH EPD 32726, mod on other grounds (CA2) 709
104 S Ct 346, 52 USLW 3342, 33 BNA FEP Cas 48, 32 CCH EPD 33867; Dobbins v
International Brotherhood of Electrical Workers (1968, DC Ohio) 292 F Supp 413, 1
BNA FEP Cas 387, 69 BNA LRRM 2313, 1 CCH EPD 9912, 58 CCH LC 9158.
Footnote 29. P.L. 102-166. 101.
Footnote 30. Joyce v McCrane (1970, DC NJ) 320 F Supp 1284, 3 BNA FEP Cas 111, 3
CCH EPD 8136.
1082, 32 BNA FEP Cas 548, 29 CCH EPD 32726, mod on other grounds (CA2) 709
104 S Ct 346, 52 USLW 3342, 33 BNA FEP Cas 48, 32 CCH EPD 33867.
Footnote 33. Robinson v Laborers' International Union, Local No. 496 (1989, ND Ohio)
52 CCH EPD 39461.
Footnote 34. As to the theories of discrimination, generally, see 2699 et seq.
1160 Particular referral practices

View Entire Section
A union commits an unlawful employment practice when it:
publishes any notice or advertisement relating to referral that indicates any preference,
limitation, specification, or discrimination based on race, color, religion, sex, national

origin, or age; 35
refuses to refer blacks for employment, because of their race or color; 36
discriminates among black and white applicants in the type and number of referrals
offered to them; 37
refers blacks into undesirable jobs; 38
fails or refuses to inform blacks of referral procedures; 39
consistently fails to follow rank order in operating its referral system; 40
uses a standardless referral policy that implicitly favors personal friends or
acquaintances of the union's business agent and operates to exclude minorities; 41
gives preference to its members in job referrals where there is a sexual or racial
imbalance in the membership; 42
gives preference in referrals to those with experience under the union's collective
bargaining agreements 43 or in the industry, 44 where blacks have been denied the
opportunity to gain such experience;
adjusts test scores, uses different cutoff scores for, or otherwise alters the test results on
the basis of race, color, religion, sex, or national origin. 45
refuses to allow a black worker to take a required examination because he lacks the
requisite hours of experience, yet permits a white worker to do so under similar
circumstances. 46
Footnotes
Footnote 35. 29 USCS 623(e); 42 USCS 2000e-3(b).
CCH EPD 8516.
Footnote 37. EEOC Decision No. 71-27 (1970) CCH EEOC Dec 6159, 2 BNA FEP Cas
867.
CCH EPD 8798.
CCH EPD 8516; EEOC Decision No. 77-35 (1977) 21 BNA FEP Cas 1805.
469 F Supp 329, 18 BNA FEP Cas 1560, 19 CCH EPD 9028, 26 FR Serv 2d 1174,
motion den (ED Pa) 27 FR Serv 2d 974 and later op (ED Pa) 502 F Supp 7.
414, 21 BNA FEP Cas 718, 21 CCH EPD 30392, later proceeding (SD NY) 482 F Supp
426, 32 BNA FEP Cas 536, 21 CCH EPD 30393, later proceeding (SD NY) 482 F Supp
918, 32 BNA FEP Cas 538, 21 CCH EPD 30513, later proceeding (SD NY) 32 BNA
FEP Cas 547, 22 CCH EPD 30713, later proceeding (SD NY) 535 F Supp 1082, 32
BNA FEP Cas 548, 29 CCH EPD 32726, mod on other grounds (CA2) 709 F2d 807, 32
BNA FEP Cas 641, 32 CCH EPD 33710, cert den (US) 78 L Ed 2d 313, 104 S Ct 346,
52 USLW 3342, 33 BNA FEP Cas 48, 32 CCH EPD 33867.
EPD 10504; Gibson v Supercargoes & Checkers of International Longshoremen's &
Warehousemen's Union (1976, CA9) 543 F2d 1259, 13 BNA FEP Cas 997, 12 CCH EPD
11215, 22 FR Serv 2d 461, 37 ALR Fed 1; Equal Employment Opportunity Com. v
Lithographers & Photoengravers International Union (1975, DC Md) 412 F Supp 530, 19
BNA FEP Cas 1234, 11 CCH EPD 10735; United States v Enterprise Asso. of Steam,
etc. (1972, SD NY) 347 F Supp 169, 4 BNA FEP Cas 1009, 4 CCH EPD 7906; EEOC
Decision No. 77-35 (1978) 21 BNA FEP Cas 1805; EEOC Decision No. 77-41 (1978)
CCH EEOC Dec 6592, 21 BNA FEP Cas 1819.
Footnote 43. Sixth CircuitDobbins v International Brotherhood of Electrical Workers
(1968, DC Ohio) 292 F Supp 413, 1 BNA FEP Cas 387, 69 BNA LRRM 2313, 1 CCH
EPD 9912, 58 CCH LC 9158, supp op (SD Ohio) 2 BNA FEP Cas 180, 2 CCH EPD
10091.
Eighth CircuitUnited States v Sheet Metal Workers International Asso. (1969, CA8)
416 F2d 123, 2 BNA FEP Cas 127, 2 CCH EPD 10083, 61 CCH LC 9319.
8022, 5 CCH EPD 8516.
F2d 123, 2 BNA FEP Cas 127, 2 CCH EPD 10083, 61 CCH LC 9319; United States v
International Brotherhood of Electrical Workers (1972, DC Nev) 356 F Supp 104, 5 BNA
FEP Cas 187, 6 BNA FEP Cas 388, 5 CCH EPD 8022, 5 CCH EPD 8516.
Footnote 46. Denton v Boilermakers Local 29 (1986, DC Mass) 650 F Supp 1151, 47
1161 Judicial remedies for discriminatory referral practices

View Entire Section

In cases of discriminatory union referral practices, the basic remedy is an order that the
union implement objective standards for determining workers' eligibility for referral and
formal procedures for the referral process, 47
but the courts have also ordered in
appropriate cases that unions make referrals in accordance with numerical goals or
quotas. 48
If discrimination against individual workers has been established during the litigation,
immediate referral may be ordered for those workers. 49 One union has even been
ordered to refer applicants who failed the union's membership examination. 50
It has also been held that victims of a union's past discriminatory referral practices may
be granted retroactive seniority, as of the date of hire of the next person who was
employed as result of a referral after the victim had applied for referral, although the
court would examine whether a distinction should be drawn between competitive (layoff
protection) seniority and noncompetitive (vacation time) seniority. 51
Relief in referral cases is often completed by requiring the defendant union to publicize
its new referral standards. 52
Observation: Courts can award compensatory and punitive damages under Title VII,
the ADA, and Section 501 of the Rehabilitation Act of 1973 for unlawful intentional
discrimination in addition to other available equitable relief. 53
Footnotes
Footnote 47. Sixth CircuitEEOC v United Asso. of Journeymen, etc. (1970, SD Ohio)
311 F Supp 468, 2 BNA FEP Cas 529, 2 CCH EPD 10205, 62 CCH LC 9434, vacated
on other grounds (CA6) 438 F2d 408, 3 BNA FEP Cas 193, 3 CCH EPD 8110, cert den
Seventh CircuitUnited States v United Brotherhood of Carpenters & Joiners (1972,
CA7) 457 F2d 210, 4 BNA FEP Cas 85, 4 CCH EPD 7610, cert den 409 US 851, 34 L
Ninth CircuitUnited States v International Asso. of Bridge, etc. (1970, WD Wash) 315
Footnote 48. Second CircuitUnited States v Wood, Wire & Metal Lathers International
Union (1973, CA2) 471 F2d 408, 5 BNA FEP Cas 318, 5 CCH EPD 8104, cert den
Third CircuitPennsylvania v Local Union 542, Intern. Union of Operating Engineers
(1985, CA3) 770 F2d 1068, 38 BNA FEP Cas 673, cert den 474 US 1060, 88 L Ed 2d
779, 106 S Ct 803, 39 BNA FEP Cas 1200.
Fifth CircuitVogler v McCarty, Inc. (1971, CA5) 451 F2d 1236, 4 BNA FEP Cas 12, 4
CCH EPD 7581.
Sixth CircuitUnited States v Bricklayers, Local 1 (1972, WD Tenn) 5 BNA FEP Cas
863, 5 CCH EPD 8480, mod on other grounds (CA6) 497 F2d 871, 8 BNA FEP Cas
159, 8 CCH EPD 9445, 18 FR Serv 2d 1115.
Footnote 49. Vogler v McCarty, Inc. (1970, ED La) 2 BNA FEP Cas 491, 2 CCH EPD
10182, order mod on other grounds (ED La) 4 BNA FEP Cas 11, 4 CCH EPD 7578,
affd (CA5) 451 F2d 1236, 4 BNA FEP Cas 12, 4 CCH EPD 7581; United States v
International Asso. of Bridge, etc. (1970, WD Wash) 315 F Supp 1202, 2 BNA FEP Cas
741, 2 CCH EPD 10267.
9329.
918, 32 BNA FEP Cas 538, 21 CCH EPD 30513, later proceeding (SD NY) 32 BNA
FEP Cas 547, 22 CCH EPD 30713, later proceeding (SD NY) 535 F Supp 1082, 32
BNA FEP Cas 548, 29 CCH EPD 32726, mod on other grounds (CA2) 709 F2d 807, 32
BNA FEP Cas 641, 32 CCH EPD 33710, cert den (US) 78 L Ed 2d 313, 104 S Ct 346,
52 USLW 3342, 33 BNA FEP Cas 48, 32 CCH EPD 33867, later proceeding (SD NY)
L Ed 2d 248, 91 S Ct 245, 2 BNA FEP Cas 1121, 3 CCH EPD 8049 (implicit approval
of publicity remedy); United States v International Asso. of Bridge, etc. (1970, WD
Wash) 315 F Supp 1202, 2 BNA FEP Cas 741, 2 CCH EPD 10267; United States v
Local Union No. 3, International Union of Operating Engineers (1972, ND Cal) 4 BNA
FEP Cas 1088, 4 CCH EPD 7944 attorney's fees awarded (ND Cal) 6 BNA FEP Cas
984, 6 CCH EPD 8946.
6. Contract Negotiation [1162-1167]
1162 Generally
View Entire Section
It has been held under both Title VII 54
and the ADEA 55 that guaranteed statutory
rights cannot be bargained away either by a union or by an employer, or by both acting in
concert.
A union's negotiation of a discriminatory employment contract, or one that impairs the

making, performance, and termination of contracts, or the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship is also a violation of
1981, 56 as amended by the Civil Rights Act of 1991. 57
Unions have been held to have engaged in discriminatory employment practices by
agreeing to collective bargaining agreement provisions:
authorizing different standards of compensation for employees and for male employees
performing the same duties; 58
discriminating on the basis of sex with respect to insurance coverage and benefits; 59
maintaining a retirement program that discriminates on the basis of sex; 60
requiring the resignation or discharge of airline flight hostesses upon their becoming
pregnant; 61
establishing or continuing a discriminatory seniority system. 62
Whenever compliance with Executive Order 11246's equal opportunity clause 63
necessitates a revision of a collective bargaining agreement, the labor union or unions
that are parties to the agreement must be given an adequate opportunity to present their
views to the Director of the OFCCP. 64
Footnotes
96 S Ct 1667, 12 BNA FEP Cas 1090, 11 CCH EPD 10836; EEOC Decision No.
72-2066 (1972) CCH EEOC Dec 6367, 4 BNA FEP Cas 1063.
Footnote 55. U. S. EEOC v County of Calumet (1982, CA7) 686 F2d 1249, 3 EBC 2065,
Footnote 57. P.L. 102-166, 101.
Footnote 58. Glus v G. C. Murphy Co. (1971, DC Pa) 329 F Supp 563, 3 BNA FEP Cas
1094, 4 CCH EPD 7548; Lansdale v Air Line Pilots Asso. International (1970, CA5)
Cas 272.
Footnote 60. Bartmess v Drewrys U. S. A., Inc. (1971, CA7) 444 F2d 1186, 3 BNA FEP
547.
Footnote 62. Fourth CircuitUnited States v Virginia Electric & Power Co. (1971, ED
Va) 327 F Supp 1034, 3 BNA FEP Cas 529, 3 CCH EPD 8207; United States v Central
Motor Lines, Inc. (1971, WD NC) 338 F Supp 532, 4 BNA FEP Cas 216, 4 CCH EPD
7624, supp op (WD NC) 352 F Supp 1253, 5 BNA FEP Cas 88, 5 CCH EPD 7945.
Fifth CircuitRodriguez v East Texas Motor Freight (1974, CA5) 505 F2d 40, 8 BNA
FEP Cas 1246, 8 CCH EPD 9811, 19 FR Serv 2d 661, reh den (CA5) 518 F2d 1407 and
vacated on other grounds 431 US 395, 52 L Ed 2d 453, 97 S Ct 1891, 14 BNA FEP Cas
1505, 14 CCH EPD 7578, 23 FR Serv 2d 397.
Tenth CircuitSears v Atchison, T. & S. F. R. Co. (1978, DC Kan) 454 F Supp 158, 17
BNA FEP Cas 1138, 17 CCH EPD 8413, affd in part and revd in part on other grounds
(CA10) 645 F2d 1365, 25 BNA.
1163 Union's liability for inducing employer discrimination

View Entire Section
In nearly identical language, Title VII, 65 the ADEA, 66 and the Equal Pay Act 67 all
make it unlawful for a labor organization to cause (or attempt to cause) an employer to
illegally discriminate against any individual.
Under the Equal Pay Act any terms in a collective bargaining agreement that would
require the employer to pay wages contrary to the Act are void and of no effect. 68
It has been held that under Executive Order 11246, unions should be enjoined from
engaging in acts or practices that cause or attempt to cause federal contractors to
discriminate against members of protected groups. 69
State aspects: Many of the state fair employment practices, age discrimination, and
equal pay statutes also make it unlawful for a labor organization to cause (or attempt to
cause) and employer to illegally discrimination against any individual. 70
Footnotes

Footnote 68. 29 CFR 1620.23.
Footnote 69. United States v International Asso. of Operating Engineers (1977, DC Or)
Footnote 70. Employment Coordinator 10,601 et seq.
1164 Union's liability for acquiescing in employer discrimination

View Entire Section
A union's ratification of an employer's discriminatory practices through contract
bargaining can compel a finding of union liability under Title VII. 71 It has been said
that unions have an affirmative duty to ensure compliance with Title VII, and that they
may be held responsible for the discriminatory practices of employers if they do not take
action against them. 72
This affirmative duty has been recognized even where no
employee affected by the employer's illegal practices complained to the union. 73
However, there is also authority for the view that a union has no duty to take action if
members have not complained about the employer's practices. 74
Even tacit union acquiescence in an employer's discriminatory practices can render the
union liable under Title VII, 75 unless those policies relate to matters wholly outside the
union's authority under the collective bargaining agreement, such as hiring or promotions
to management positions. 76 In contrast to other courts (footnote 20), the Eighth Circuit
has held that a union's mere acquiescence in the face of an employer's alleged
discrimination cannot render the union liable under Title VII. 77
The Equal Pay Act requires some affirmative participation by the union in the
discrimination charged. 78 Thus, it has been held that local and international unions do
not violate that Act merely by signing a collective bargaining agreement pursuant to
which sex wage discrimination occurs, where the unions request that wages be equalized
but the employer reject the proposal. 79
Footnotes
Cas 712, 16 CCH EPD 8315.
Footnote 72. Romero v Union P Railroad (1980, CA10) 615 F2d 1303, 22 BNA FEP Cas
338, 22 CCH EPD 30679; Howard v International Molders & Allied Workers Union,
etc., Local #100 (1986, CA11) 779 F2d 1546, 39 BNA FEP Cas 1413, 39 CCH EPD
35965, cert den 476 US 1174, 90 L Ed 2d 988, 106 S Ct 2902, 40 BNA FEP Cas 1873,
40 CCH EPD 36149.
Footnote 73. Chrapliwy v Uniroyal, Inc. (1977, ND Ind) 458 F Supp 252, 15 BNA FEP
Cas 795, 14 CCH EPD 7708.
Footnote 74. Capers v Long Island Railroad (1973, SD NY) 6 BNA FEP Cas 30, 5 CCH
EPD 8556.
Footnote 75. Macklin v Spector Freight Systems, Inc. (1973) 156 App DC 69, 478 F2d
979, 5 BNA FEP Cas 994, 5 CCH EPD 8605 Chrapliwy v Uniroyal, Inc. (1977, ND
Ind) 458 F Supp 252, 15 BNA FEP Cas 795, 14 CCH EPD 7708; United States v
Buffalo (1978, DC NY) 457 F Supp 612, 19 BNA FEP Cas 776, 18 CCH EPD 8899.
Footnote 76. Edmonds v Southern Pacific Transp. Co. (1979, ND Cal) 19 BNA FEP Cas
1052; Harris v Anaconda Aluminum Co. (1979, ND Ga) 479 F Supp 11, 23 BNA FEP
Cas 553, 19 CCH EPD 9230.
Footnote 77. Martin v Local 1513 & Dist. 118 of International Asso. of Machinists &
Aerospace Workers (1988, CA8) 859 F2d 581, 51 BNA FEP Cas 1802, 48 CCH EPD
38404.
Footnote 79. Murphy v Miller Brewing Co. (1969, ED Wis) 307 F Supp 829, 9 BNA FEP
Cas 517, 2 CCH EPD 10076, affd (CA7 Wis) 457 F2d 221, 9 BNA FEP Cas 726, 4
CCH EPD 7691.
1165 International union's liability for local's discriminatory agreement

View Entire Section
An international union may be liable under Title VII for discriminatory collective
bargaining agreements undertaken by its locals, depending on the level of participation of
the international in the bargaining process and the degree of responsibility it has for
policing the activities of its locals. An international's responsibility can be established by
union constitution and by-law provisions subordinating local union authority to the
control and supervision of the international body. 80
Observation: Copies of the constitutions and by-laws of all labor organizations

subject to the Labor Management Reporting and Disclosure Act are available to the
public and can be obtained from the U.S. Department of Labor through the Public
Disclosure Office of The Labor-Management Services Administration.
International unions have been held liable for discriminatory contract provisions
negotiated by union locals where:
the master agreement between the employer and the international authorized local
working agreements, and international officials knew of the local agreement and signed
it; 81
the international had a close relationship with its locals under which the international
would provide advisors to review and comment on the local's bargaining positions, and
the international required locals to submit contracts to it for approval; 82
the international negotiated and signed the basic agreement with employers and
negotiated and signed the local union's collective bargaining agreement; 83
the discriminatory agreements were negotiated under the control of the international
union on a system-wide and conference-wide basis, and the international union failed to
eliminate the discriminatory provisions. 84
One court rejected an international union's argument that its local's failure to eliminate
discriminatory contract provisions in bargaining absolved the international for its failure
to eliminate the unlawful provisions. The court said that the argument misconceived the
obligation of unions in general, and international unions in particular, to eradicate the
effects of discriminatory provisions contained in collective bargaining agreements. 85
However, an international union was found to have no liability for wage discrimination
that arose out of a collective bargaining agreement, where it was shown that the
international did not directly or indirectly participate in negotiations, did not sign the
agreement, and expressly refused to execute the agreements, even though the
international was the recipient of funds from the local union. 86
Footnotes
EPD 10504.
Footnote 81. Taylor v Armco Steel Corp. (1973, DC Tex) 373 F Supp 885, 8 BNA FEP
Cas 979, 8 CCH EPD 9550.
Footnote 82. Myers v Gilman Paper Corp. (1977, CA5) 544 F2d 837, 14 BNA FEP Cas
218, 13 CCH EPD 11300.
EPD 10504.
Footnote 84. Freeman v Motor Convoy, Inc. (1975, DC Ga) 409 F Supp 1100, 13 BNA
FEP Cas 1262, 11 CCH EPD 10650.
FEP Cas 1262, 11 CCH EPD 10650.
Footnote 86. Sinyard v Foote & Davies Div. of McCall Corp. (1978, CA5) 577 F2d 943,
1166 Local union's liability for discriminatory national agreement

View Entire Section
Local unions may share liability for unlawful provisions in agreements entered into by
their international unions. The fact that individual members of a local union may have
voted against a discriminatory provision does not provide a defense to the local union's
liability, where the national and area contracts became effective upon acceptance by a
vote of the majority of the international union's members. 87
Footnotes
FEP Cas 1262, 11 CCH EPD 10650.
1167 Union's joint liability with employer

View Entire Section
A union is jointly liable with an employer under both Title VII and 42 USCS 1981,
where they enter into a discriminatory agreement. 88
Because 1981's protections
have been extended to encompass all aspects of the making and enforcement of contracts,
and the enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship, a union also could be held jointly liable with an employer under that statute
for committing violations of these other rights. Similarly, a union and an employer have
been found to be equally liable for ADEA violations where the union actively
campaigned to persuade the employer to violate the Act. 89 However, it has been held
that a union may not be held jointly liable for an employer's sex discrimination that
violates the Equal Pay Act. 90
An employer that settled a Title VII class action at an early stage with a court-approved
consent agreement specifically absolving it of further monetary loss and expressly
providing that the union's liability was not affected did not have to contribute toward the
ultimate liability judgment entered against the jointly responsible union. The union had
not objected to the settlement. 91
The fact that a union and an employer may be held jointly liable for discrimination does
not necessarily mean that they will be equally liable for backpay, or that one will be
entitled to require the other to contribute to a money judgment. Some courts have held
that a union can escape monetary liability if it can prove that it opposed inclusion of a
discriminatory provision in a collective bargaining agreement, 92 while others have held

that such opposition warranted the apportionment of a lesser amount of damages against
the union. 93
Furthermore, the Supreme Court has held that an employer liable for
backpay because collectively bargained wage differentials violated Title VII had no right
to a contribution from unions. 94
Similarly, the ADEA does not provide the legal
basis for recovery by way of contribution against a union by an employer who has
violated the Act by reason of its compliance with the terms of a collective bargaining
agreement. 95
Recommendation: Since there is no right of contribution under Title VII or the

ADEA, a defendant union must add the employer as a party to litigation arising out of
a collective bargaining agreement whenever the plaintiff has not done so.
Footnotes
Footnote 88. Fifth Circuit:Guerra v Manchester Terminal Corp. (1974, CA5) 498 F2d
641, 8 BNA FEP Cas 433, 8 CCH EPD 9584, 74 CCH LC 10248, reh den (CA5) 503
F2d 567.
Seventh CircuitWaters v Wisconsin Steel Works of International Harvester Co. (1974,
Eighth CircuitDonnell v General Motors Corp. (1978, CA8) 576 F2d 1292, 17 BNA
Footnote 89. Air Line Pilots Asso., International v Trans World Airlines, Inc. (1983,
CA2) 713 F2d 940, 32 BNA FEP Cas 1185, 114 BNA LRRM 2241, 32 CCH EPD
33757, 98 CCH LC 10386.
Footnote 90. Denicola v G. C. Murphy Co. (1977, CA3) 562 F2d 889, 15 BNA FEP Cas
1004, 14 CCH EPD 7778.
Footnote 91. Sears v Atchison, T. & S. F. R. Co. (1984, CA10) 749 F2d 1451, 36 BNA
Footnote 92. Faulkner v Republic Steel Corp. (1979, ND Ala) 30 BNA FEP Cas 555, 22
CCH EPD 30698.
Footnote 93. Parson v Kaiser Aluminum & Chemical Corp. (1978, CA5) 583 F2d 132, 18
Footnote 94. Northwest Airlines, Inc. v Transport Workers Union (1981) 451 US 77, 67
Footnote 95. Marshall v Eastern Airlines, Inc. (1979, SD Fla) 474 F Supp 364.
As to backpay, generally, see 2907 et seq.
7. Contract Administration [1168-1172]
1168 Grievance processing

View Entire Section
The Supreme Court has held that a union's policy of not asserting grievances that
contained race bias charges to avoid antagonizing management or in deference to white
members violated both Title VII and 42 USCS 1981. Through its policy, the union had
not merely acquiesced in the employer's discriminatory acts, but affirmatively had chosen
not to press its black members' racial discrimination charges. Neither Title VII nor
1981 lets a union refuse to file grievances by blacks, including those charging race
discrimination, simply because the employer might resent them. 96
A union's discriminatory grievance processing practices violate 42 USCS 1981 when
they interfere with contract formation or enforcement, or the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship 97 Under 1981, a
union is liable for refusing to file grievances on discrimination claims when the collective
bargaining contract contains an explicit anti-discrimination clause. 98
According to the Seventh Circuit, a plaintiff establishes a Title VII prima facie case of a
union's breach of its duty of fair representation by showing that (1) the employer has
violated the collective bargaining agreement with respect to the plaintiff, (2) the union
has allowed the violation to continue and thus has breached its own duty of fair
representation, and (3) the union's act has been motivated by discriminatory animus. 99
In its handling of grievances, a union commits an unlawful employment practice under
Title VII by discriminating against individuals because of race, color, religion, sex, or
national origin. A union violates Title VII where it:
refuses to process female employees' grievances in the same manner that it processes
male employees' grievances; 1
has its representative process the grievances of white employees personally, while
referrring the grievances of black union members to stewards; 2
fails, because of a grievant's race, to process his grievance through to arbitration. 3
However, a union has the right to preserve its own integrity in the good-faith
representation of its members, and, consequently, has no obligation to pursue meritless
claims. 4 Thus, a union did not violate Title VII by refusing to represent a black
employee beyond the initial stages of a grievance proceeding, because the refusal was
based on the reasonable conclusion that her complaint lacked merit. 5 Furthermore,
unions have no obligation to pursue members' claims beyond the point where success is
unlikely. A union did not violate Title VII by failing to take a female employee's
grievance regarding an alleged discriminatory health insurance plan to arbitration, where
the union had pursued the grievance through three of the four steps leading to arbitration
and had previously taken to arbitration three other cases involving the employer's health
insurance plan. 6
The EEOC has refused to find that a union discriminated against one of its black
members by failing to take his complaint past the second step in the grievance process,
and by failing to offer counsel, other than to advise him to plead guilty, where it was not
clear that the union provided more vigorous representation to its Caucasian members. 7
Further, a plaintiff's mere allegations that union officials mishandled her grievance
because she was white and Jewish, without proof of any discriminatory animus, did not
create a prima facie Title VII case. 8
Footnotes
Footnote 96. Goodman v Lukens Steel Co. (1987) 482 US 656, 96 L Ed 2d 572, 107 S
Footnote 98. Woods v Graphic Communications (1991, CA9) 925 F2d 1195, 55 BNA
Footnote 99. Babrocky v Jewel Food Co. (1985, CA7) 773 F2d 857, 38 BNA FEP Cas
Cas 1788.
Footnote 4. Larkin v United Steel Workers of America (1976, DC Pa) 409 F Supp 1137,
Footnote 5. Fisher v Fashion Institute of Technology (1980, SD NY) 491 F Supp 879, 22
BNA FEP Cas 1163, 22 CCH EPD 30813, later proceeding (SD NY) 87 FRD 485, 26
Footnote 6. EEOC Decision No. 76-124 (July 19, 1976) CCH EEOC Dec 6686.
Cas 1817.
Footnote 8. Schwartz v Sillie (1991, SD NY) 1991 US Dist LEXIS 6917.
1169 Duty to process grievance as affected by contract provision
View Entire Section

Unions cannot collectively bargain away employees' rights to be free from retaliation
under the ADEA. A provision in a collective bargaining agreement permitting an
employer to terminate or deny grievance proceedings when the employees claiming to be
aggrieved have initiated claims in administrative or judicial forums violated the ADEA's
prohibition against retaliation for filing charges or complaints under the ADEA. 9
Other decisions have held that a union commits an unlawful employment practice by
refusing to process grievances arising out of sex 10 or race 11 discrimination, even if a
purported authorization for such discrimination is contained in the collective bargaining
agreement. 12
However, unions did not commit discrimination by failing to file grievances when:
the union believed in good faith that the collective bargaining agreement did not permit
it to complain about hiring practices, and its failure was not shown to be arbitrary or
discriminatory. 13
the employee had failed an examination required by the collective bargaining agreement
for the desired position. 14
it was disputed whether the employee had requested union action, the alleged requests
would have been too late for effective union action, and there was no relevant contract
provision to support a union action against the employer. 15
the grievance was filed too late under the terms of the collective bargaining agreement.
16
Footnotes
Footnote 9. EEOC v Board of Governors of State Colleges & Universities (1992, CA7
Ill) 957 F2d 424, 58 BNA FEP Cas 292, 58 CCH EPD 41326, cert den (US) 121 L Ed
Fourth CircuitTippett v Liggett & Myers Tobacco (1970, DC NC) 316 F Supp 292, 2
BNA FEP Cas 904, 2 CCH EPD 10292; EEOC Decision No. 70-450 (1970) CCH
EEOC Dec 6117, 2 BNA FEP Cas 429; EEOC Decision No. 71-687 (1970) CCH
EEOC Dec 6186, 3 BNA FEP Cas 262.
Footnote 11. Bush v Lone Star Steel Co. (1974, DC Tex) 373 F Supp 526 7 BNA FEP
Cas 1258, 7 CCH EPD 9179; EEOC Decision No. 70-134 (1969) CCH EEOC Dec
6064, 2 BNA FEP Cas 237.
Cas 262.
Footnote 13. Green v United States Steel Corp. (1979, ED Pa) 481 F Supp 295, 20 BNA
Footnote 14. Bouta v American Federation of State, etc. (1984, CA8) 746 F2d 453, 36
Footnote 16. Cline v Printing Specialties & Paper Products Union No. 560-S (1989, DC
Kan) 1989 US Dist LEXIS 1114.
1170 Duty to accommodate religious beliefs; work scheduling

View Entire Section
Although Title VII's provision requiring religious accommodation specifically refers only
to employers, 17 it has been held that the provision requires a union, as well as an
employer, to attempt to accommodate the religious beliefs of employees, unless
accommodation would cause undue hardship to the union. 18
While Title VII requires
that a union make a good-faith effort to accommodate an employee's religious beliefs, it
does not require that an established bargaining agreement be overridden in order to
achieve the accommodation. Thus, a union was not required to:
deprive two members of the benefits of an agreement's four-day work-week provision,
against their wishes, in order to accommodate another employee-member, who could not
meet his scheduled work-shift under that provision because of his religious beliefs; 19
allow an employee to bump when bumping normally would not have been permitted
and when it would have caused some detriment to other union members; 20
agree with an employee's suggested work scheduling accommodations that would have
required violation of the terms of a collective bargaining agreement; 21
The scope of an employer's duty to accommodate his employees' religious beliefs was
narrowly circumscribed by the Supreme Court in its Hardison decision, which involved a
conflict between the plaintiff's Sabbath and scheduled work. The Supreme Court found
that undue hardship exists when an employer cannot accommodate an employee's
religious needs without: (a) violating the seniority provision of a valid collective
bargaining agreement; (b) suffering more than "de minimis" costs in terms of money or
efficiency in attempting to replace the absent worker; and (c) requiring employees of
other religions, or non-religious employees, to work at times that are undesirable to them,
in place of the absent worker. 22
Similarly, in a case involving a union's duty to
accommodate, it was held that the union was not required to modify seniority rules, in its
collective bargaining agreement, in order to accommodate the shift preference of a less

senior employee who was a member of a church that observes the Sabbath from sunset
Friday until sunset Saturday, where more senior employees protested the accommodation
as a violation of their contractual rights. 23
Footnotes
As to religious accommodation, generally, see 141 et seq.
Footnote 18. Cooper v General Dynamics, Convair Aerospace Div., Ft. Worth Operation
Footnote 19. EEOC v Caribe Hilton International (1984, DC Puerto Rico) 597 F Supp
1007, 36 BNA FEP Cas 420, affd (CA1) 821 F2d 74, 43 CCH EPD 37268.
Footnote 20. Killebrew v Local Union 1683 of American Federation of State, etc. (1986,
WD Ky) 651 F Supp 95, 42 BNA FEP Cas 165, 43 CCH EPD 37054.
Footnote 21. Dickson v International Longshoremen & Warehousemen's Union, Local 40
(1985, DC Or) 38 BNA FEP Cas 1253, 39 CCH EPD 35852.
Footnote 23. Huston v International Union, United Auto., etc. (1977, CA8) 559 F2d 477,
1171 Duty to accommodate religious beliefs; union dues

View Entire Section
The National Labor Relations Act (NLRA) authorizes union security agreements that
mandate, as a prerequisite to continued employment, either compulsory union
membership or payment of an agency fee by the worker to the union equal to the union's
dues and initiation fees. 24 This provision created a conflict for workers who, for
religious reasons, felt that they could neither belong nor contribute financially to a union.
The workers' religious convictions in turn created a problem for unions (and employers)
under Title VII's religious accommodation provision, 25 since a number of courts held
that the provision applied to the situation, 26
unless unions could demonstrate that
accommodation would cause them undue hardship 27
For the most part, this situation was neutralized by a 1980 amendment to the NLRA that
allows employees with bona fide conscientious objections to joining or financially
supporting a union to escape those obligations, although they may be required by a

collective bargaining agreement to pay a sum equivalent to union dues to a nonreligious,
nonlabor charity. 28 Similarly, the EEOC has amended its religious discrimination
guidelines to provide that when an employee's religious practices do not permit him to
comply with a requirement in a collective bargaining agreement that he join the union or
pay the union a sum equivalent to dues, the union should accommodate him by not
requiring membership and by permitting him to donate a sum equivalent to dues to a
charitable organization. 29
However, the Sixth Circuit has held that 29 USC 169, which permits union dues to be
paid to charitable organizations by religious objectors to such dues, is unconstitutional
because it restricts religious accommodation to members of bona fide religions, thus
resulting in excessive entanglement of government with religion. The provision is
subject to strict scrutiny since it facially discriminates among religions, creating a
denominational preference by conferring a benefit on only the members of statutorily
specified religious organizations. No compelling governmental interest is furthered by
the statute, and the interest of protecting religious freedom in the workplace would be
more effectively advanced if it paralleled the protection afforded by Title VII, which
requires accommodation without regard to membership in a particular religion. Unlike
Title VII, the statute requires not only a determination of whether the employee's beliefs
are sincere, but also requires a court to validate the legitimacy of the religion, and to
verify the existence and longevity of its doctrine regarding labor unions. 30
Other courts have decided that employees must be allowed to make a substitute
charitable payment in lieu of paying union dues when:
an employee's personal bible study, rather than her church, led her to oppose unions on
religious grounds; 31
an employee followed the doctrines of the Seventh-Day Adventist Church but was no
longer a church member. 32
A Title VII problem lingers with respect to employees who refuse on religious grounds
either to pay union dues or to make an equivalent contribution to a charity. The
discharge of such an employee was held not to violate Title VII, where the employee
proposed as an accommodation that he be given either a job outside the bargaining unit
or be exempted from the dues requirement. The court held that these proposals were
impractical because: (1) the union was continuing to organize the employer's workers
and therefore a transfer outside the bargaining unit was only a temporary
accommodation, (2) the transfer would have required costly training, (3) the exemption
of one employee could have lead to demands for other exemptions, and (4) there was a
history of friction among workers in the plant when "free-riders" (those who pay neither
dues to the union nor the equivalent thereof to a charity) were permitted. 33
Footnotes
Footnote 26. Fifth CircuitCooper v General Dynamics, Convair Aerospace Div., Ft.
Worth Operation (1976, CA5) 533 F2d 163, 12 BNA FEP Cas 1549, 12 CCH EPD
11002, and cert den 433 US 908, 53 L Ed 2d 1091, 97 S Ct 2972, 15 BNA FEP Cas 31,
14 CCH EPD 7635.
Seventh CircuitNottelson v A. O. Smith Corp. (1976, DC Wis) 423 F Supp 1345, 14
Ninth CircuitBurns v Southern Pacific Transp. Co. (1978, CA9) 589 F2d 403, 17 BNA
843, 18 BNA FEP Cas 1430, 18 CCH EPD 8716A; Anderson v General Dynamics
Convair Aerospace Div. (1978, CA9) 589 F2d 397, 17 BNA FEP Cas 1644, 18 CCH
1377, 19 CCH EPD 9246.
Footnote 27. Fifth CircuitCooper v General Dynamics, Convair Aerospace Div., Ft.
Worth Operation (1976, CA5) 533 F2d 163, 12 BNA FEP Cas 1549, 12 CCH EPD
11002, reh den (CA5) 537 F2d 1143 and reh den (CA5) 537 F2d 1143 and cert den 433
Ninth CircuitBurns v Southern Pacific Transp. Co. (1978, CA9) 589 F2d 403, 17 BNA
843, 18 BNA FEP Cas 1430, 18 CCH EPD 8716A; Anderson v General Dynamics
Convair Aerospace Div. (1978, CA9) 589 F2d 397, 17 BNA FEP Cas 1644, 18 CCH
1377, 19 CCH EPD 9246.
Footnote 29. 29 CFR 1605.2(d)(2).
Footnote 30. Wilson v NLRB (1990, CA6) 920 F2d 1282, 54 BNA FEP Cas 777, 135
Footnote 31. International Asso. of Machinists & Aerospace Workers, Lodge 751 v
Boeing Co. (1987, CA9) 833 F2d 165, 45 BNA FEP Cas 791, 126 BNA LRRM 3303, 45
CCH EPD 37593, 108 CCH LC 10253, cert den 485 US 1014, 99 L Ed 2d 715, 108
S Ct 1488, 46 BNA FEP Cas 888, 128 BNA LRRM 2144, 47 CCH EPD 38172, 108
CCH LC 10476.
Footnote 32. EEOC v Davey Tree Surgery Co. (1987, ND Cal) 671 F Supp 1260, 43
BNA FEP Cas 1177, 125 BNA LRRM 2157, 43 CCH EPD 37059, 111 CCH LC
11188.
1172 Seniority systems

View Entire Section
The ADEA allows unions to observe the terms of a bona fide seniority system. 34
Similarly, although Title VII's own bona fide seniority system exemption expressly
applies only to employers, 35 the Supreme Court has held that if a seniority system is
bona fide within the meaning of the exemption, a union's conduct in agreeing to and
maintaining the system does not violate the Act. 36 Thus, the Title VII exemption
applies to unions as well as to employers, and is usually the focal point of decisions
involving their joint liability for discriminatory, collectively bargained seniority
practices.
Footnotes
As to the bona fide seniority system exemption, see 706 et seq.
The relationship between Title VII's religious accommodation requirement and bona fide
seniority systems is discussed in 1170.
8. Other Practices [1173-1177]
1173 Refusing to attempt to organize minority shops

View Entire Section
A union may violate Title VII if, as a matter of policy, it attempts to organize employers
with predominantly white employees, but does not attempt to organize employers that
have predominantly black employees. 37 However, the fact that through the union's
shop-organizing efforts no blacks had been admitted to membership in a predominantly
white union did not indicate a violation of Title VII, where the union had made two
efforts to organize a predominantly black non-union shop but had failed to do so. The
court noted that there were certain disadvantages to union membership, such as relatively
high levels of unemployment resulting from restrictions on working for non-union
contractors, and dues and fees requirements. 38
Footnotes
Footnote 37. Gray v Bartenders Union (1974, ND Cal) 10 BNA FEP Cas 496; Equal
Employment Opportunity Com. v Local 638 (1975, DC NY) 401 F Supp 467, 12 BNA
FEP Cas 712, 10 CCH EPD 10347, supp op (SD NY) 421 F Supp 603, 12 BNA FEP
Cas 742, mod on other grounds (CA2) 532 F2d 821, 12 BNA FEP Cas 755, 11 CCH EPD
10757.
Footnote 38. Equal Employment Opportunity Com. v Sheet Metal Workers etc. (1978,
1174 Union officeholding requirements

View Entire Section
While suits concerning union officeholding rules are cognizable under the
Labor-Management Reporting and Disclosure Act of 1959, 39 union members who
desire to challenge officeholding rules may also fashion a claim under Title VII's
provisions prohibiting unions from discriminating against members on the basis of race,
color, religion, sex, or national origin. 40 Thus, a union bylaw that specified which
union offices would be held by union members of the white and "colored" races violated
Title VII. 41
However, a union did not discriminate on the basis of race in appointing a white person
to the position of shop steward, rather than appointing the more senior black plaintiff.
There was no custom to appoint the most senior worker as steward, and the union
reasonably found the person appointed was the most qualified, because unlike the
plaintiff, he had previously acted as a job steward, was active in the union, and had held
union offices. 42 Furthermore, a union did not discriminate among its members in
violation of Title VII by enforcing a rule permitting only those who worked in bargaining
units represented by the union to hold union office. The rule excluded female members
of the union's business office staff from eligibility for union office, but also applied
equally to men and women and operated to exclude a number of male retirees. 43
Footnotes
Footnote 40. 42 USCS 2000e-2(c)(1), (2).
Footnote 41. Shultz v International Longshoremen's Asso. (1972, DC Pa) 338 F Supp
1204, 79 BNA LRRM 2660, 4 CCH EPD 7665, 67 CCH LC 12413, affd (CA3) 461
F2d 1262, 80 BNA LRRM 3296, 4 CCH EPD 7917, 68 CCH LC 12892, cert den 410
US 909, 35 L Ed 2d 271, 93 S Ct 965, 82 BNA LRRM 2244, 70 CCH LC 13345.
Footnote 42. Pree v Stone & Webster Engineering Corp. (1985, DC Nev) 607 F Supp
Footnote 43. McNail v Amalgamated Meat Cutters & Butcher Workmen (1977, CA8)
549 F2d 538, 14 BNA FEP Cas 705, 94 BNA LRRM 2643, 13 CCH EPD 11503, 81
CCH LC 13018.
1175 Harassing non-union employees

View Entire Section
The Supreme Court has held that a construction company and two of its nonunion
employees could not maintain an action under 42 USCS 1985(3) 44 against several
labor unions whose members allegedly assaulted and beat the company's employees and
destroyed its property. The court held that the alleged conspiracy to infringe the First
Amendment rights of employees who refused to join the unions did not violate 1985(3),
since it was not proved that the state was involved in the conspiracy or that the aim of the
conspiracy was to influence state activity, and since there was no racial or otherwise
class-based invidiously discriminatory animus behind the conspirators' action. 45
Footnotes
Footnote 45. United Brotherhood of Carpenters & Joiners, Local 610 v Scott (1983, US)
77 L Ed 2d 1049, 103 S Ct 3352, 51 USLW 5173, 113 BNA LRRM 3145, 32 CCH EPD
33697, 97 CCH LC 10231.
1176 Notice posting

View Entire Section
Title VII requires every labor organization to keep posted in conspicuous places on its
premises a notice, prepared or approved by the EEOC, setting forth pertinent provisions
of the statute and information pertinent to the filing of a job discrimination complaint. 46
In the EEOC's view, a union whose membership was between 50 and 75%
Spanish-surnamed Americans violated Title VII by not publishing the collective
bargaining agreement and other employment information in Spanish. 47
Footnotes
1177 Payment of members' legal costs

View Entire Section
A union's payment of the legal defense fees of a member who was the object of a suit
charging race discrimination did not violate Title VII or 42 USCS 1981, because there
was no evidence that the union's action was taken with discriminatory intent. 48 A
district court in the same circuit has held that a union violated Title VII by refusing to
pay a member's legal fees for hiring outside counsel when the union could not represent
the her because of a conflict of interest. 49
Footnotes
Footnote 48. Golden v International Asso. of Firefighters (1980, CA9) 633 F2d 817, 24
Footnote 49. Bouman v Pitchess (1987, CD Cal) 42 CCH EPD 36898).
B. Employment Agency Practices [1178-1192]
Research References
29 USCS 623; 42 USCS 1981, 2000e, 2000e-2, 2000e-3, 12111, 12112
29 CFR Parts 1604, 1607, 1625; 41 CFR Part 60-1
1. In General [1178-1187]
1178 Generally
View Entire Section
The policies and practices of employment agencies are subject to many of the federal and
state job discrimination and other fair employment practices laws. With certain
exceptions, 50 discrimination by employment agencies on the basis of race, color,
religion, sex, national origin, age, handicap, and other factors is prohibited with respect
to job referrals and other particular practices 51 by:
the Civil Rights Act of 1866; 53
Executive Order 11246. 56
Observation: The various statutes have very specific requirements as to what is an

"employment agency." A particular organization must be shown to meet these
requirements before liability can be imposed. 57
State aspects: Many state job discrimination laws regulated miscellaneous

employment agency practices. 58
Footnotes
Footnote 52. 1179.
Footnote 53. 1180.
Footnote 54. 1181.
Footnote 55. 1182.
Footnote 56. 1183.
Footnote 57. As to the definition of employment agencies, see 84 et seq.
Footnote 58. These state laws are noted and discussed in the Employment Coordinator
EP-24,100.
1179 Liability under Title VII

View Entire Section
Under Title VII, an employment agency cannot refuse to refer for employment or
otherwise discriminate against any individual on the basis of race, color, religion, sex, or
national origin. Title VII also prohibits an employment agency from classifying
individuals on any of those bases 59 and from printing or publishing any notice or ad
relating to any classification or referral that indicates a preference, limitation,
specification, or discrimination as to those bases. 60
Title VII also bars an employment agency from discriminating against anyone who has
opposed an unlawful employment practice or made a charge, testified, assisted, or
participated in any manner in a Title VII investigation, proceeding, or hearing. 61
Recommendation: If, in performing a reference check on a job applicant who is

qualified for the position being sought, an employment agency discovers that the job
applicant has previously filed a Title VII charge, the agency should nevertheless refer
the individual. If the agency does not, it is exposed to charges of both failure or refusal
to refer on account of race, etc., and retaliation.
Title VII also prohibits discriminatory adjustment, alteration, or use of employment test
scores by employment agencies in connection with the referral of applicants or
candidates for employment or promotion. 62
Footnotes
Footnote 62. 1190.
1180 Liability under the Civil Rights Act of 1866

View Entire Section
An employment agency violates 42 USCS 1981 by engaging in racial discrimination in

the making and enforcement of employment contracts, or by discriminating on the basis
of race in the enjoyment of all benefits, privileges, terms, and conditions of the
Footnotes
1181 Liability under the ADEA

View Entire Section
Under the ADEA, an employment agency is prohibited from:
failing or refusing to refer for employment any individual because of that individual's
age;
classifying or referring for employment any individual on the basis age;
otherwise discriminating against any individual because of age; 64
discriminating against any individual because the individual has opposed any practice
made unlawful by the ADEA or has made a charge, testified, assisted, or participated in
an investigation, proceeding, or litigation under the ADEA. 65
Footnotes
1182 Liability under the ADA

View Entire Section
Effective July 26, 1992, 66 the ADA prohibits employment agencies 67 from:
disability. 68

affects the opportunities or status of the individuals because of their disabilities. 69
qualified applicants with disabilities to discrimination that is unlawful under the ADA. 70
who are subject to common administrative control. 71
discriminating because of a qualified individuals' known relationships or association
with individuals known to have disabilities. 72
consistent with business necessity. 74
Footnotes
Footnote 69. 42 USCS 12112(b)(1).
Footnote 70. 42 USCS 12112(b)(2).
Footnote 71. 42 USCS 12112(b)(3).
Footnote 72. 42 USCS 12112(b)(4).
Footnote 73. 42 USCS 12112(b)(5).
Footnote 74. 42 USCS 12112(b)(6).
Footnote 75. 42 USCS 12112(b)(7).
1183 Liability under Executive Order 11246
View Entire Section

to cause agencies referring workers for work under government contracts to cooperate in
the implementation of the Order. The Secretary's "best efforts" must be expended either
directly or through contracting agencies, other interested governmental bodies,
contractors, and "all other available instrumentalities." The Executive Order also
requires the Secretary, in appropriate circumstances, to notify the EEOC, the Justice
Department, or any other appropriate federal agency whenever it has reason to believe
that the practices of any such agency violate Title VI, Title VII, or any other federal law.
76
The OFCCP Director may hold hearings, public or private, concerning the practices and
policies of any recruiting agency. 77 He may notify any federal, state, or local agency
of his conclusions and recommendations with respect to any recruiting agency he
believes has failed to cooperate in carrying out the purposes of Executive Order No.
11246. 78
Footnotes
Footnote 76. 42 USCS 2000e Note 207; 41 CFR 60-1.9.
1184 Liability under the Immigration Act

View Entire Section
While not specifically named in the Immigration Reform and Control Act of 1986 as a
covered entity, the legislative history of that act indicates that employment agencies are
included in the act's prohibitions against discriminating against individuals on the basis
of their national origin or citizenship in recruitment and referral. 79
Footnotes
Footnote 79. S. Rep. No. 99-132, 99th Cong., 1st Sess. (1985) p. 32.
1185 Liability as an employer

View Entire Section

According to the EEOC, prohibitions against employment discrimination apply not only
to the referral activities of covered employment agencies, but also to the agencies' own
employment practices, regardless of whether they have enough employees to qualify as
"employers" in their own right. 80 Thus, in practices such as the hiring, firing, and pay
of its own employees, an employment agency is subject to the same restrictions as is any
other employer. 81 One court has agreed with this interpretation, 82 but another court
has rejected it unless the employment agency meets the statutory definition of
"employer." 83
Observation: There is no reason to doubt that employment agencies are also covered
as employers under the terms of the Immigration Reform and Control Act of 1986,
with respect to the prohibitions against discriminating in hiring based on national
origin and citizenship, and against hiring unauthorized aliens. 84
Footnotes
Footnote 82. Brennan v Aldert Root (1974, ED NC) 16 BNA FEP Cas 1643, 8 CCH EPD
9531.
Footnote 83. Brennan v Paragon Employment Agency, Inc. (1973, SD NY) 356 F Supp
286, 5 BNA FEP Cas 915, 5 CCH EPD 8614, affd without op (CA2) 489 F2d 752, 7
Footnote 84. As to employers covered by the immigration laws, generally, see 74 et
seq.
1186 Proving employment agency discrimination

View Entire Section
The principles applicable to the proof and defense of any job discrimination claim 85
apply to claims regarding the practices of employment agencies. For example, a female
client of an employment agency established a prima facie case of disparate treatment
based on sex by proving that the employment agency told her that a job was no longer
available, and that the agency later told her husband that the job was still open and
invited him to apply. The client was not required in this case to show that she met the
minimum qualifications for the job, although this would normally be required to establish
a prima facie case, because the employment agency did not try to determine her
qualifications for the job before telling her that the job was no longer available. 86 In
another case, a prima facie case of disparate impact was proved regarding an employment
agency's requirement that applicants for certain jobs be heads of households. A female
client of the agency showed that the agency failed to refer her for a job because she was
married and living with her husband, and that the agency's policy of classifying married
women as persons who are not heads of households necessarily had an adverse impact on
women. 87
Footnotes
Footnote 86. Ostroff v Employment Exchange, Inc. (1982, CA9) 683 F2d 302, 29 BNA
FEP Cas 683, 29 CCH EPD 32966, 11 Fed Rules Evid Serv 387.
1187 Settling the case with the EEOC

View Entire Section
When an employment agency has been found to be in violation of Title VII, the EEOC
will expect any conciliation agreement with the agency to include provisions under which
the agency agrees:
to classify and refer all applicants without regard to race, color, religion, sex, or national
origin; 88
to place the aggrieved party on a preferred list under an affirmative action program; 89
to validate all tests in accordance with EEOC guidelines; 90 91
to cease taking job orders and referring on a discriminatory basis; 92
to eliminate other specific factors that brought about the discriminatory practice; 93
to compute and pay appropriate backpay. 94
Under the provision by which the employment agency agrees to classify and refer all
applicants without regard to ethnic or sexual factors, the EEOC will attempt to implement
several contractual provisions. For example, in one suggested provision the respondent
agrees that all applicants using its services will be registered according to job-related
factors only, such as experience, interests, and skills, and will be classified without
regard to restrictive traditions or sterotypes. 95 Under this provision, practices such as
placing female and male applicants on different colored cards and dual sets of
applications for men and women must be discontinued immediately. Another suggested
conciliation clause provides that promotional material describing applicants will list jobs
in alphabetical order and not by sex, and that comments identifying an applicant's sex or
race will not be used. 96 The respondent would also be required to review all
applications and classifications on file and to revise them to conform with the agency's
new referral policy. 97
Other provisions likely to be suggested by the EEOC would impose affirmative duties on
the respondent employment agency. For example, the EEOC might expect the
respondent to agree to refuse job orders from employers who request applicants on a
discriminatory basis, 98 to inform employers who attempt to place discriminatory job
orders of the requirements of Title VII and other federal antidiscrimination laws, 99 or to
develop and implement a training program for its employment counselors eliminating
specialization in "male" or "female" applicants or job orders. 1
Footnotes
2. Particular Agency Practices [1188-1192]
1188 Recruiting clients

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An employment agency's ads soliciting clients must avoid any inference of limitation or
exclusion from job opportunities on the basis of race, color, religion, sex, national origin,
or age. Ads may be tailored, though, to aid an employer in the recruitment of minorities
and women by the use of statements such as "minorities are encouraged to apply" or
"equal opportunity employer." 2
Under most circumstances, private employment agencies that deal exclusively with one
sex engage in an unlawful employment practice. However, an exception has been made
for agencies that limit services to furnishing employees for particular jobs for which sex
is a bona fide occupational qualification. 3
Footnotes
6799.
1189 Processing clients

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Discriminatory practices in the processing of clients by an employment agency may
violate Title VII. For example, an agency that maintained stations for interviewing
clients designated as "female desk" and "male desk" has been found to have violated Title
VII. 4 Furthermore, an agency's practice of assigning women to counselors whose only
experience is in referring to jobs traditionally held by women, and assigning men to
counselors who have experience only in referring to jobs traditionally held by men,
violates Title VII. 5
Footnotes
Footnote 4. Barnes v Rourke (1973, MD Tenn) 8 BNA FEP Cas 1112, 8 CCH EPD
9772.
1190 Referring clients

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An employment agency's responsibility for assuring that female applicants receive
nondiscriminatory consideration from the employers to whom they refer clients extends
only to the point of arranging interviews on a nondiscriminatory basis. 6 However, a
violation of Title VII occurred when an employment agency failed to refer a woman
because she was married and, therefore, considered not be a head of household where
that policy would have an adverse impact on females. 7 In contrast, a state employment
agency that failed to refer a black applicant was not guilty of race discrimination when
the agency's legitimate non-discriminatory explanation for its action, general
inefficiency, including employee error or oversight, inefficient communication between
staff members, and inability to contact applicants, was found credible by the court. The
agency was a large, heavily-utilized, bureaucratic, and undermanned system with limited
resources. 8
An employment agency has no duty to assess whether an employer that seeks the referral
of minorities has a valid affirmative action program. 9 However, an employment
agency may aid an employer's affirmative action plan by making special efforts to recruit
minorities and women in response to an employer's request for exclusive referrals from
those groups. The agency, however, must refer qualified applicants to the employer on a
nondiscriminatory basis. Thus, by failing to refer a white job applicant to an employer,
an employment agency violated Title VII, even though the agency mistakenly believed
that the employer, under its affirmative action plan, would only accept referrals of black
applicants. 10
An agency that receives a job order containing an unlawful specification, such as one
based on sex, shares responsibility with the employer placing the job order if the agency
fills the order knowing that the specification is not based on a bona fide occupational
qualification or other recognized exception to Title VII's ban on discriminatory
evaluations of job candidates. Nonetheless, an employment agency acts lawfully
regardless of the employer's discrimination if the agency has no reason to believe that the
employer's claim of exception lacks merit. The agency must, however, make and
maintain a written record available to the EEOC of each such job order, including the
name of the employer, the description of the job, and the basis for the employer's claim.
11
Finally, it is a violation of Title V11 for an employment agency that uses
employment-related tests in connection with the selection or referral of applicants or
candidates for hire or promotion to adjust the test scores, use different cutoff scores, or
otherwise alter test results, on the basis of race, color, religion, sex, or national origin. 12
Footnotes

Footnote 8. Hill v Mississippi State Employment Service (1990, CA5) 918 F2d 1233, 54
BNA FEP Cas 997, 55 CCH EPD 40416, cert den (1991, US) 116 L Ed 2d 149, 112 S
Footnote 9. EEOC Decision No. 79-63 (1979) 26 BNA FEP Cas 1178. CCH EEOC Dec
6799, 29 CFR 1604.6(b).
1191 Testing clients

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An employment agency that devises a testing program in response to an employer's or
union's request must follow the standards for test validation set forth in the Uniform
Guidelines on Employee Selection Procedures. 13 An employment agency testing
program that has a disparate impact on the basis of race, color, religion, sex, or national
origin and is not shown to be job related for the position in question and consistent with
business necessity violates Title V11, 14 as does the agency's failure to adopt a less
discriminatory alternative testing program. 15
1191 ----Testing clients [SUPPLEMENT]
Case authorities:
Black testers who were denied employment referrals by employment agency failed to
state cause of action for damages under 42 USCS 1981, since testers' loss of
opportunity to enter into contract voidable at will of employment agency based on
material misrepresentations made by testers to employment agency was not cognizable
under 42 USCS 1981. Fair Employment Council v BMC Mktg. Corp. (1994, App DC)
28 F3d 1268, 65 BNA FEP Cas 512.
Footnotes
As to the Uniform Guidelines on Employee Selection Procedures, see 316 et seq.
Footnote 14. 42 USCS 2000e-2(k) (1) (A) (i).

Footnote 15. 42 USCS 2000e-2(k) (1) (A) (ii).
1192 Denying unemployment benefits to clients

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A public employment agency may violate Title VII by denying unemployment
compensation benefits to a client of the agency in a discriminatory manner. This occurs
where an agency's administration of its unemployment compensation program cannot be
separated from its employment referral practices. 16 For example, a state employment
service violated Title VII when it denied unemployment compensation benefits to women
who returned to the work force after pregnancy-related disabilities, but granted benefits
to those who returned to work after non-pregnancy-related disabilities. 17
Footnotes
Footnote 16. EEOC Decision No 76-129 (1976) CCH EEOC Dec 6691.
Footnote 17. EEOC Decision No 78-46 (1978) CCH EEOC Dec 6729.
C. Training Committee Practices [1193-1204]
Research References
29 USCS 50; 42 USCS 2000e, 2000e-2, 2000e-3, 12111, 12112
29 CFR Part 30
1. In General [1193-1204]
1193 Generally
View Entire Section
The policies and practices of joint labor-management training committees are subject to a
number of the federal and state 18 job discrimination and fair employment practices
laws. With certain exceptions, 19 job discrimination by joint labor-management training
committees on the basis of race, color, religion, sex, national origin, and other factors is
specifically prohibited by:
the National Apprenticeship Act of 1937. 23
Observation: Although the laws may prohibit specific practices by joint training
committees, they rarely define the term "joint labor-management training committee"
24 However, the definition appears to be self-evident, and, in fact, the absence of a
definition has never yet engendered a conflict in court.
Footnotes
Footnote 18.
State Aspects Several state job discrimination laws explicity prohibit certain practices
by joint labor-management training committees. They are noted and discussed in the
Footnote 20. 1194.
Footnote 21. 1195.
Footnote 22. 1196.
Footnote 23. 1197.
1194 Liability under Title VII

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It is unlawful, under Title VII, for a joint labor-management training committee to:
print or publish a notice or advertisement relating to admission to, or employment in, an
apprenticeship or other training program that it sponsors or endorses indicating a

preference based on race, color, religion, sex, or national origin; 25
practice retaliatory discrimination against any individual because he has opposed an
unlawful practice or participated in any manner in a proceeding under Title VII; 26
discriminate against any individual on the basis of race, sex, color, religion, or national
origin in admission to, or employment in, any apprenticeship or other training program;
27
in connection with the selection or referral of applicants or candidates for employment
or promotion, adjust the scores of, use different cutoff scores for, or otherwise alter the
results of employment-related tests on the basis of race, color, religion, sex, or national
origin. 28
In a case in which test scores and interview standards that had no significant relationship
to job performance were used to select participants in a union apprenticeship program, a
violation of Title VII was found when black applicants were disqualified at a higher rate
than whites were. 29 In another case, a screening mechanism employed by a
union-management committee to select applicants for an apprenticeship program
discriminated against women in violation of Title VII, because applicants were asked
about prior military service, and prior vocational training and experience, and were
granted higher scores for responding positively to these questions. 30 Furthermore, as
amended by the Civil Rights Act of 1991, 31 Title VII prohibits a joint-labor
management training committees from using employment practice that has a disparate
impact on the basis of race, color, religion, sex, or national origin and is not shown to be
job related for the position in question and consistent with business necessity, 32 and
also makes it liable for not adopting a less discriminatory alternative employment
practice. 33
Footnotes
Footnote 28. 42 USCS 2000e-2(1), discussed at 316 et seq.
CCH EPD 8798.
Footnote 30. Bailey v Southeastern Area Joint Apprenticeship Committee (1983, ND W
Va) 561 F Supp 895, 31 BNA FEP Cas 752, 31 CCH EPD 33604.
Footnote 31. P.L. 102-166, 105.
Footnote 32. 42 USCS 2000e-2(k) (1) (A) (i).
Footnote 33. 42 USCS 2000e-2(k) (1) (A) (ii).
1195 Liability under the ADA

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Effective July 26, 1992, 34 the ADA prohibits labor-management committees 35 from:
disability; 36
affects the opportunities or status of the individuals because of their disabilities; 37
qualified applicants with disabilities to discrimination that is unlawful under the ADA; 38
who are subject to common administrative control; 39
discriminating because of a qualified individual's known relationships or association
with individuals known to have disabilities; 40
reasonable accommodation; 41
consistent with business necessity; 42
Footnotes
Footnote 37. 42 USCS 12112(b)(1).
Footnote 38. 42 USCS 12112(b)(2).
Footnote 39. 42 USCS 12112(b)(3).

Footnote 40. 42 USCS 12112(b)(4).
Footnote 41. 42 USCS 12112(b)(5).
Footnote 42. 42 USCS 12112(b)(6).
Footnote 43. 42 USCS 12112(b)(7).
1196 Liability under Executive Order 11246

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to cause agencies providing apprenticeship or training for work under government
contracts to cooperate in the implementation of the Order. The Secretary's "best efforts"
must be expended either directly or through contracting agencies, other interested
governmental bodies, contractors, and "all other available instrumentalities." The
Executive Order also requires the Secretary, in appropriate circumstances, to notify the
EEOC, the Justice Department, or any other appropriate federal agency whenever he has
reason to believe that the practices of any such agency violate Title VI, Title VII, or any
other federal law. 44
The OFCCP Director may hold hearings, public or private, concerning the practices and
policies of any training agency. 45 He may notify any federal, state, or local agency of
his conclusions and recommendations with respect to any training agency he believes has
failed to cooperate in carrying out the purposes of the Executive Order. 46
Footnotes
Footnote 44. 42 USCS 2000e Note 207.
Footnote 46. Ex Or 11246 207; 41 CFR 60-1.9(d).
1197 Liability under National Apprenticeship Act

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Under the National Apprenticeship Act of 1937, the Secretary of Labor must formulate
and promote labor standards to safeguard the welfare of apprentices and must bring
employers and labor together to formulate apprenticeship programs. 47 Accordingly, the
DOL has issued regulations that forbid discrimination because of race, color, religion,
sex, and national origin in apprenticeship programs registered with the Department. 48
Footnotes
Footnote 48. 29 CFR Part 30, discussed at 903.
D. Farm Labor Contractor Practices [1198-1204]
Research References
29 USCS 1801 et seq.
ALR Index, Agriculture; Civil Rights and Discrimination; Labor and Employment
1198 Registration requirements
View Entire Section
Under the Migrant and Seasonal Agricultural Workers Protection Act (MSPA) 49 farm
labor contracting activity 50 is prohibited without a certificate of registration from the
Secretary of Labor. A person seeking to engage in such activity must obtain a certificate
specifying which farm labor contracting activities that person is authorized to perform.
51 An employee of a "farm labor contractor" 52 must obtain either a certificate of
registration as an independent farm labor contractor, or as such a contractor's employee,
which authorizes the activities for which the individual is hired, employed, or used. 53
Certificates are available after appropriate investigation and approval by the Secretary, in
accordance with applicable procedures. 54
Certificates must be carried at all times by those engaging in farm labor contracting
activities and must be exhibited, upon request, to all persons dealing with the registered
individual. 55
It is the farm laborer's responsibility to obtain the registration required by the MSPA.
Therefore, a contractor's omission of nonregistered laborers from its payroll records did
not constitute a violation when all laborers who were registered or sought to be registered
were maintained on those records. 56 Knowledge of the MSPA's registration
verification procedures is not necessary for a violation to be treated as intentional.

Conduct that leads to a violation of the act is sufficient to treat the violation as an
intentional one. 57
Footnotes
Footnote 50. 85.
Footnote 52. 85.
Annotation: What constitutes "agricultural employment" subject to provisions of
Migrant and Seasonal Agricultural Workers Protection Act (29 USCS 1801 et
seq.). 91 ALR Fed 735.
Footnote 57. Saintida v Tyre (1992, SD Fla) 1992 US Dist LEXIS 1698.
1199 Payment requirements

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Wages owed to migrant 58 or seasonal 59 farm workers under the Migrant and
Seasonal Agricultural Workers Protection Act (MSPA) 60 must be paid when due and
be accompanied by an itemized statement describing the wages, hours worked, and
amounts withheld. 61
A farm labor contractor violated the MSPA by creating a labor agreement that failed to
explain adequately that the bonus rate of pay was based on paid weight rather than net
weight of cut asparagus. Thus, any discrepancies in the wages attributable to that
ambiguity were construed against the contactor as the drafter of the agreement. 62 Also
in violation of the MSPA was a farm labor contractor that admitted noncompliance with
MSPA's payment requirements, even though it did not employ the farm workers whose
rights were violated. Employers and contractors may be held jointly liable as "joint
employers" of farm or migrant workers pursuant to the factors that are used to determine
"joint employer" status for FLSA coverage purposes. 63
Footnotes
Footnote 58. 121.
Footnote 59. 122.
Footnote 61. 29 USCS 1821, 1822, 1831.
Footnote 63. Saintida v Tyre (1992, SD Fla) 1992 US Dist LEXIS 1698.
1200 Prohibition against exclusive supply relationships

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migrant 65 and seasonal 66 agricultural workers cannot be required to purchase goods
or services solely from a farm labor contractor, 67 agricultural employer, or agricultural
association. 68
Footnotes
Footnote 65. 121.
Footnote 66. 122.
Footnote 67. 85.
As to agricultural employers or agricultural associations, see 86.
1201 Prohibition against substandard housing

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housing provided to migrant 70 and seasonal 71 farm workers must comply with
federal safety and health standards, and a certification of compliance must be posted at
the site. 72
1201 ----Prohibition against substandard housing [SUPPLEMENT]
Case authorities:
By its plain language, 29 USCS 1823(b)(1), which requires that certification to operate
septic system for migrant labor housing must be posted, applies to any person who owns
or controls housing facility or real property occupied by migrant worker, and whether
such person is agricultural employee is not determinative. Barrientos v Taylor (1996, ED
NC) 917 F Supp 375, 3 BNA WH Cas 2d 265, 131 CCH LC 33330.
29 USCS 1823(a), which should not be interpreted as including scienter requirement,
is not unconstitutionally vague, as its meaning is clear. Conlan v United States Dep't of
Labor (1996, CA9 Cal) 76 F3d 271, 96 CDOS 748, 96 Daily Journal DAR 1175, 131
CCH LC 33331.
Footnotes
Footnote 70. 121.
Footnote 71. 122.
1202 Prohibition against unjustified contract breach

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Farm labor contractors 73 are prohibited from violating, without justification, the terms
of any written agreement made with an agricultural employer or an agricultural
association 74 pertaining to any contracting activity or worker protection under the
Migrant and Seasonal Agricultural Workers Protection Act (MSPA). 75
Footnotes
Footnote 73. 85.

Footnote 74. 86.
As to MSPA generally, see 85.
1203 Waiver of MSPA rights

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Employees cannot waive or modify their rights under the Migrant and Seasonal
Agricultural Workers Protection Act (MSPA). 76 Agreements by employees purporting
to do so are void as contrary to public policy, except for waivers or modifications in
favor of the Secretary of Labor, which are valid for purposes of enforcing the Act. 77
Footnotes
1204 Retaliation prohibited

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The Migrant and Seasonal Agricultural Workers Protection Act (MSPA) prohibits farm
labor contractors from retaliating against any employees because they exercised their
rights under the Act. 78 Therefore, a contractor who refused to rehire laborers, at least
in part because they initiated legal action to recover illegally withheld bonus payments in
violation of the statute, was found guilty of retaliation. 79
Footnotes
X. ADMINISTRATIVE PROCEEDINGS [1205-2014]

A. Overview of the Agencies [1205-1231]
Research References
5 USCS 906, 7702; 29 USCS 206, 631, 633a, 633a,et seq.; 38 USCS 4211 et
seq.; 42 USCS 2000e, 2000e-4, 2000e-5, 2000e-8, 2000e-12, 2000e-16, 12116,
12117, 12203, 12206
Executive Orders 11246, 11758, 12067
5 CFR Part 300; 18 CFR Part 1303; 29 CFR Parts 1601, 1612, 1613, 1630, 1641,
1642; 39 CFR Part 253; 41 CFR Parts 1-12, 60-1, 60-2, 60-4, 60-20, 60-30, 60-40,
60-50, 60-60, 60-250, 60-741, 60-742
43 Fed. Reg. 19807
43 Fed. Reg. 28967
16 Federal Procedure, L Ed, Government Officers and Employees 40:507 et seq.
10 Federal Procedural Forms, L Ed, Government Officers and Employees 35:48,
35:49, 35:92
Employment Coordinator EP-31,051 et seq., EP-31,172, EP-31,345, EP-31,401
et seq., EP-35,441 et seq.
Employment Discrimination Coordinator 46,105, 48,002
1. U.S. Department of Labor [1205]
1205 Generally
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The United States Department of Labor (DOL) administers a wide variety of federal
labor laws through a myriad of component offices, boards, bureaus, and administrations.
80 It was created in 1913 with the Secretary of Labor as its head. It is one of the
Executive departments of the government, and is governed by the general provisions
relating to all executive departments in Title 5, USCS.
The Secretary of Labor is responsible for administering one job discrimination law,
Executive Order 11246, which prohibits job discrimination based on race, color, religion,
sex, or national origin by federal contractors. 81 This responsibility has been delegated
to the Office of Federal Contract Compliance Programs (OFCCP). 82
The operations of the DOL throughout the United States are generally organized through
ten regions, and numerous area offices. The regional organization of the Department
includes elements representing its major programmatic agencies and support agencies.
Case authorities:
Board lacked jurisdiction to review arbitrator's decision denying appellant's grievance,
even though he alleged agency discrimination on basis of disabling condition, since
arbitrator's decision involved three matters that could not have been appealed to Board
initially, i.e., promotion, performance evaluation, and relief from workplace stress.
Means v Department of Labor (1994, MSPB) 61 MSPR 183.
Although Board had jurisdiction to review arbitration decision denying removal
grievance on basis of disability discrimination, appellant's objections related only to
arbitrator's factual findings and conclusions that no reasonable accommodation of
appellant's "bipolar disorder, manic" condition was possible, which were entitled to
deference and provided no basis for setting aside arbitrator's decision. Means v
Department of Labor (1994, MSPB) 63 MSPR 180.
Arbitrator's denial of grievance alleging that agency's assignment of certain higher-grader
work was discriminatory was not deficient. U.S. Dept. of HUD and AFGE, Local 3380
(1994) 49 FLRA No. 52.
Footnotes
Footnote 80. A detailed description of the structure and functions of the DOL appears in
the Employment Coordinator EP-31,051 et seq.
The OFCCP is discussed, generally, at 1221 et seq.
2. The Equal Employment Opportunity Commission [1206-1220]
1206 Introduction
View Entire Section
The Equal Employment Opportunity Commission (EEOC) is the major federal agency
concerned with the elimination of job discrimination based on race, color, religion, sex,
national origin, disability, and age. It was created by Title VII of the Civil Rights Act of
1964 83 and became operational on July 2, 1965. Its national headquarters are located
at 1801 L Street, N.W., Washington, D.C., 20507.
The Commission is responsible for the administration and enforcement of Title VII, 84
the Americans with Disabilities Act (ADA), 85 the Equal Pay Act (EPA), 86 and the
Age Discrimination in Employment Act (ADEA). 87 It also promotes voluntary
affirmative action programs by employers, unions, and community groups, 88 and is
responsible for all federal employment compliance and enforcement activities, 89
including enforcement of handicap discrimination laws.
State aspects: The fair employment practices statutes of 46 states, the District of
Columbia, Puerto Rico, and the Virgin Islands create and empower administrative or
executive agencies to enforce their provisions. These statutes normally give their
enforcement agencies certain basic powers to promulgate regulations, cooperate with
other agencies, provide technical assistance to covered employers and other entities,
undertake research and educational projects, and prepare annual reports of their
activities. 90
Footnotes
Law Reviews: Lynch, The Equal Employment Opportunity Commission: Comments
on the Agency and its Role in Employment Discrimination Law. 20 Ga. J. Int'l &
Comp. L. 89 (1990).
Footnote 90. As used here, the term "fair employment practices statute" refers generically
to any state statute of general applicability prohibiting job discrimination on multiple
bases, whether designated in a particular state as the "Fair Employment Practices Act,"
"Anti-Discrimination Act," "Human Rights Act," or the like.
Practice References State job discrimination agencies. Employment Coordinator
31,401 et seq.
1207 The Commissioners
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The EEOC consists of five Commissioners, no more than three of whom may be from the
same political party. Members of the Commission are appointed by the President, with
the advice and consent of the Senate, for five year terms. The President designates one
member to serve as Chairman or Chair, and one to serve as Vice-Chairman. 91
Footnotes
1208 The General Counsel

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In 1972, Congress gave the EEOC the power to litigate, as well as conciliate, Title VII
disputes, and an Office of the General Counsel was created to exercise that power. The
General Counsel is appointed by the President, with the advice and consent of the Senate,
for a four year term. 92 The General Counsel has responsibility for conducting
litigation, and must concur with the Chairman concerning the appointment and
supervision of regional attorneys. 93
Footnotes
1209 Field office structure

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The EEOC has three types of field offices: district, area, and local. There are currently
22 district offices, 18 area offices, and nine local offices, each of which is headed by its
own Director. Each area and local office is subordinate to a district office and operates
under the supervision of the District Director. Each district office operates under the
supervision of the Program Director, Office of Program Operations, through the
Directors, Regional Programs, Office of Program Operations, and the General Counsel.
94
Footnotes
Practice References List of EEOC field offices. Employment Coordinator 31,345.
List of EEOC field offices. Employment Discrimination Coordinator 46,105.
1210 Powers and duties under Title VII and the ADA
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Title VII makes the EEOC responsible for preventing the unlawful employment practices
set forth in that statute. 95 Under this broad mandate, Congress has given the EEOC
the following specific powers and duties:
to receive or initiate written charges of alleged discrimination against employers, labor
organizations, joint labor-management apprenticeship programs, and employment
agencies; 96
to investigate charges received; 97
to order access to evidence; 98
to pay witness and mileage fees; 99
to bring an action for appropriate temporary or preliminary relief, pending final
disposition of a charge; 1
to determine if there is reasonable cause to believe that a charge is true; 2
to attempt to eliminate an alleged unlawful practice through informal methods of
conciliation, conference, and persuasion; 3
to bring suit in the appropriate federal district court, after 30 days from the filing of the
charge; 4
to issue a right to sue notice to the charging party; 5
to intervene in a charging party's suit. 6
The EEOC has no direct powers of enforcement under Title VII, and cannot adjudicate
claims or impose administrative sanctions. 7

The procedures for processing employment discrimination complaints under Title VII are
incorporated for the Americans with Disabilities Act (ADA), 8 including the procedures
for processing retaliation prohibitions. 9
1210 ----Powers and duties under Title VII and the ADA [SUPPLEMENT]
Case authorities:
Inclusion of definition "affecting commerce" from labor laws into Title VII (42 USCS
2000e(h)) vests EEOC with fullest jurisdictional breadth permissible under Commerce
Clause; thus, EEOC may exercise jurisdiction over employer who has more than de
minimis impact on flow of interstate commerce. EEOC v Association of Community
Organizations for Reform Now (1995, ED La) 67 BNA FEP Cas 508.
Footnotes
For a full discussion of the EEOC's administrative enforcement proceedings under Title
VII, see 1232 et seq.
Footnote 98. 42 USCS 2000e-8(a), 2000e-9.
Footnote 99. 42 USCS 2000e-4(g)(2).
Footnote 1. 42 USCS 2000e-5(f)(2).
Footnote 6. 42 USCS 2000e-4(g)(6), 2000e-5(f)(1).
Footnote 7. Alexander v Gardner-Denver Co. (1974) 415 US 36, 39 L Ed 2d 147, 94 S
Procedures for processing ADA complaints are discussed at 1376 et seq.
1211 Authority to enforce the ADEA and the EPA

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Under Reorganization Plan No. 1 of 1978, the responsibility for enforcing the Equal Pay
Act (EPA), and the Age Discrimination in Employment Act (ADEA) was transferred
from the Department of Labor to the EEOC. 10
Observation: There was some question regarding the constitutionality of the

Reorganization Act of 1977, 11 under which the transfer of the responsibility for
enforcing the EPA and the ADEA was originally authorized, due to a one-house
congressional veto provision. 12 Legislation signed by the President in October of
1984, 13 which specifically ratified and affirmed all federal reorganization plans and
further provided that any actions taken prior to the effective date of the legislation
"shall be considered to have been taken pursuant to a reorganization expressly
approved by Act of Congress," rendered this problem academic.
Footnotes
For a full discussion of EEOC's administrative enforcement proceedings under the EPA
and the ADEA, see 1380 et seq. and , see 1391 et seq., respectively.
Footnote 12. The unconstitutionality of the legislative veto is discussed in 16 Am Jur 2d,
Constitutional Law 319.
1212 Authority to enforce the ADA

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Under the ADA, the EEOC is authorized to enforce the Act's prohibitions against
disability discrimination in employment. 14
1212 ----Authority to enforce the ADA [SUPPLEMENT]

Case authorities:
Action brought by plaintiff who alleged that defendants wrongfully terminated him in
violaton of ADA (42 USCS 12101 et seq.) is dismissed for failure to state claim since
plaintiff failed to allege that he is qualified individual with disability or even that he
suffers from disability, nor did plaintiff describe nature and extent of his alleged
disability anywhere in complaint. Abbasi v Herzfeld & Rubin, P.C. (1994, SD NY) 863 F
Supp 144, 6 ADD 1065, 3 AD Cas 1275.
Footnotes
The Commission's enforcement procedures are described at 1376 et seq.
1213 Rulemaking power

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Title VII gives the EEOC the power to issue, amend, or rescind suitable procedural
regulations to carry out its provisions. 15 The Commission has used this power to issue
the following regulations:
29 CFR Part 1601Procedural Regulations under Title VII. 16
29 CFR Part 1602Records and Reports. 17
29 CFR Part 1604Guidelines on Discrimination Because of Sex. 18
29 CFR Part 1605Guidelines on Discrimination Because of Religion. 19
29 CFR Part 1606Guidelines on Discrimination Because of National Origin. 20
29 CFR Part 1607Guidelines on Employee Selection Procedures. 21
29 CFR Part 1608Guidelines on Affirmative Action. 22
29 CFR Part 1610Availability of Records. 23
29 CFR Part 1611Privacy Regulations. 24
29 CFR Part 1612Government in the Sunshine Act Regulations. 25

29 CFR 1626 Procedural Rules under the ADEA. 26
29 CFR 1620 Administrative Rules under the EPA. 27
29 CFR 1625 Interpretive Rules under the ADEA. 28
An interested person may petition the EEOC in writing for the issuance, amendment, or
repeal of a rule or regulation. The petition must be filed with the EEOC's Washington,
D.C. office and must state the rule or regulation proposed to be issued, amended, or
repealed, together with a statement of grounds in support of the petition. 29
Title VII also gives the EEOC the authority, by implication, to issue written
interpretations or opinions concerning Title VII questions. 30
1213 ----Rulemaking power [SUPPLEMENT]
Regulations:
Effective January 3, 1994, the EEOC issued an interim final rule, 29 CFR Part 1650, as
to collection of debts owed to the EEOC by federal tax refund offset. 29 CFR
1650.201 et seq. establish the procedures to be followed. The rule defines a past-due
legally enforceable debt, and it covers notification of intent to collect, reasonable attempt
to notify, consideration of evidence submitted as result of notification, notification to the
IRS, and administrative charges.
Case authorities:
Regulation promulgated by EEOC pursuant to 42 USCS 2000e- 12(a) must be upheld
so long as it is reasonably related to purposes of enabling legislation. Sims v MacMillan
(1994, CA11 Ga) 22 F3d 1059, 64 BNA FEP Cas 1766, 8 FLW Fed C 287.
Footnotes

Footnote 29. 29 CFR 1601.35.
For a discussion on how to obtain an advisory opinion from the EEOC, see 2012.
1214 --Under the ADA

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As required under the Americans with Disabilities Act (ADA), 31 the EEOC issued
regulations in accordance with the Administrative Procedure Act (5 USCS 551 et seq.)
format on July 26, 1991, to carry out the ADA's prohibition against employment
discrimination. 32 The regulations are designed to implement the Act's prohibitions
against disability discrimination 33 and discriminatory selection and hiring practices 34
and terms and conditions of employment, 35 as well as the Act's provisions regarding
judicial proceedings. 36 The EEOC also has issued a policy statement describing the
agency's responsibilities with respect to enforcement of the ADA's employment
provisions. 37 Furthermore, to ensure that administrative complaints filed under the
ADA and the Rehabilitation Act are treated consistently with no duplication of effort, 38
the EEOC, 39 the Attorney General, and the Office of Federal Contract Compliance
Programs (OFCCP) 40 established coordinating mechanisms similar to the provisions
contained in the joint regulations promulgated by the EEOC and the Attorney General 41
and the January 16, 1981 memorandum of understanding between the EEOC and the
OFCCP in regulations implementing the ADA and the Rehabilitation Act.
Footnotes
Footnote 32. 29 CFR 1630.

Footnote 40. 41 CFR 60-742.
Footnote 41. 28 CFR 42 et seq., 29 CFR 1691 et seq.
1215 Assistance to employees and their attorneys

View Entire Section
In an effort to strengthen the ability of private parties to sue, the EEOC has engaged in a
variety of activities to develop and train a private Title VII bar. Each EEOC district
office has been instructed to develop within its geographical area a "panel" of Title VII
private attorneys to review case files and provide legal assistance, upon request, to
charging parties in contemplation of litigation. To become a member of such a panel, an
attorney must fill out an application on EEOC Form 325. As a panel member, an
attorney must make a decision to accept or reject a case referred by the EEOC within ten
days. 42
On its Attorney Referral List, the EEOC maintains the following information: attorneys'
names, business addresses and telephone numbers, nature of and amount of civil rights
litigation experience, state and federal bar admission, whether the attorneys have the
capacity and desire to handle class actions, whether the attorneys charge consultation fees
(and how much), whether the attorneys will waive the consultation fee, the types of fee
arrangement the attorneys will accept, and whether the attorneys speak a foreign
language fluently. 43
The EEOC contemplates Title VII education programs for both panel members and the
private bar in general, utilizing such measures as seminars and the distribution of
informational literature. Materials such as draft complaints and interrogatories, model
class complaints, and a Title VII checklist for preparing a case are available at EEOC
district offices. 44
The Americans with Disabilities Act (ADA) permits the EEOC and the Attorney General
to provide technical assistance to individuals that have rights under the ADA, 45 and to
award grants or contracts to individuals, nonprofit institutions (no part of the net earnings
of which inure to the benefit of any private shareholder or individual), and associations
representing individuals with rights under the ADA, to effectuate the purposes of the
assistance plan. Contracts, but not grants, may be awarded to entities organized for profit.
46
Footnotes
Footnote 42. EEOC Compliance Manual 81.3
Footnote 43. EEOC Compliance Manual Exhibit 81-A.
Footnote 45. 42 USCS 12206(c)(1).
Footnote 46. 42 USCS 12206(d)(1).
1216 Assistance to employers, unions, and employment agencies

View Entire Section
Title VII empowers the EEOC to furnish persons subject to the statute any technical
assistance they may request to further compliance with Title VII or with an order issued
under it. 47 Such help includes assistance to an employer whose employees, or a labor
organization whose members, refuse (or threaten to refuse) to co-operate in effectuating
the provisions of Title VII. 48 Furthermore, as amended by the Civil Rights Act of
1991, 49 Title VII requires the EEOC to establish a Technical Assistance Training
Institute for the purpose of providing technical assistance and training with regard to the
laws and regulations enforced by the EEOC. 50 However, an entity covered by the
statute will not be excused from compliance with its requirements because of any failure
to receive technical assistance. 51
An employer or union can agree to work with EEOC staff in conducting a comprehensive
analysis of its entire personnel system. Technical assistance the EEOC can provide
includes: audits and analyses of employment systems; work force analyses broken down
by equal employment opportunity categories; guidance and assistance in developing
nondiscriminatory selection procedures; advice on how to expand recruitment sources to
reach minority and female applicants; and aid in developing full-scale affirmative action
programs to remedy employment practices prohibited by Title VII. 52
The Commission encourages and assists voluntary action by employers, unions, and
employment agencies through affirmative action programs by providing services in
developing multi-plant and industry-wide programs, and by helping to identify
discriminatory systems, and devising ways to change them. Such programs are designed
to help organizations achieve the goals of equal employment opportunity through
nondiscriminatory recruiting, fair employee selection procedures, expanded training

programs, and job upgrading. The Office of Special Projects and Programs of the EEOC
provides information, educational materials, consultation, and other assistance in the
development of affirmative and other voluntary programs, and attempts to negotiate
voluntary agreements with employers to implement the programs. 53
While the Americans with Disabilities Act (ADA) allows the EEOC and Attorney
General to provide contracts to profit-making entities as part of the technical assistance
which can be given, the statute does not permit an employer or any other covered entity
to excuse its failure to comply with the Act because it did not receive such assistance. 54
The ADA also requires the Attorney General to publish a plan, developed in conjunction
with the Chair of the EEOC, among other agencies, to assist covered entities in
understanding their responsibilities under the Act. 55
Footnotes
Footnote 49. P.L. 102-166, 110.
Footnote 50. 42 USCS 2000e-4(j)(1).
Footnote 51. 42 USCS 2000e-4(j)(2).
Footnote 52. EEOC Eighth Annual Report p 9.
Footnote 53. See EEOC Order 110, Organization, Mission, and Functions, EEOC
Directives Transmittal No. 280, issued 5/5/78.
1217 Inter-agency cooperation

View Entire Section
Executive Order 12067 instructs the EEOC to develop uniform definitions of job
discrimination, establish one set of rules for complaint investigations and compliance
reviews, and adopt uniform record-keeping and reporting requirements for all federal
agencies. In addition, this Order instructs the EEOC to review proposed job
discrimination rules, enforcement procedures, and orders issued by all federal agencies
and departments. Any dispute between the EEOC and another agency or department is
resolved by the President. 56

Title VII authorizes the EEOC to: utilize the services of state agencies charged with the
administration of state antidiscrimination laws, and to pay, by advance or reimbursement,
such agencies and their employees for services rendered to assist the EEOC in carrying
out Title VII and; 57 co-operate with, and, with their consent, utilize regional, state,
local, and other agencies and individuals, both private and public. 58
Footnotes
Caution: Note, however, that in at least one case, a court has refused to order a
separate department to conform its litigation to EEOC policies. The court held that
nothing in the Executive Order required the Department of Justice to conform the
exercise of its prosecutorial responsibilities under the statute to the policies adopted by
the EEOC. Furthermore, the court stated that the constitutional principle of separation
of powers prevented it from interfering with the exercise of executive functions.
NAACP v Meese (1985, DC Dist Col) 615 F Supp 200, 38 BNA FEP Cas 324, 38
CCH EPD 35632.
1218 Research and education projects

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Go to Supplement
Title VII authorizes the EEOC to engage in and contribute to the cost of research and
other projects of mutual interest undertaken by state EEO agencies. 59
The EEOC has direct liaison with state and local governments, employer and union
organizations, trade associations, civil rights organizations, and other agencies and
organizations concerned with employment of minority group members and women. The
EEOC engages in and contributes to the cost of research and other mutual interest
projects with state and local agencies charged with the administration of
antidiscrimination laws. The EEOC's district offices administer the funding of these
projects. The EEOC is also a major publisher of data on the employment status of
minorities and women. Through six employment surveys (EEO-1 through EEO-6),
covering private employers, apprenticeship programs, labor unions, state and local
governments, elementary and secondary schools, and colleges and universities, the EEOC
tabulates and stores data on the ethnic, racial, and sex characteristics of employees at all
job levels within the reported groups. This information is shared with other selected
federal agencies, and may be made available for public use. 60

As amended by the Civil Rights Act of 1964, 61 Title VII requires the EEOC to include
in its education and outreach activities the dissemination of information in languages
other than English. 62 Such activities must target those individuals who have
historically been victims of employment discrimination and have not been served
equitably by the EEOC, 63 and those on whose behalf the EEOC is authorized to
enforce any other law prohibiting discrimination in employment or governing the rights
and obligations under Title VII or such a law. 64
1218 ----Research and education projects [SUPPLEMENT]
Statutes:
42 USCS 2000e-4(k) was added in 1992 to establish a revolving fund for use by the
EEOC to provide education, technical assistance, and training relating to the laws
administered by the Commission.
Footnotes
Footnote 60. 1983-84 US Government Manual p 484.
Footnote 61. P.L. 102-166, 111(2).
Footnote 62. 42 USCS 2000e-4(h)(2).
Footnote 63. 42 USCS 2000e-4(h)(2)(A).
Footnote 64. 42 USCS 2000e-4(h)(2)(B).
1219 Public and closed meetings

View Entire Section
In conformity with the requirements of the government in the Sunshine Act of 1976, 65
the EEOC has adopted a general policy that all of its meetings are open to the public, 66
except where the agency determines that an open meeting would result in disclosure of
the following types of information: (1) matters of national defense or foreign policy; (2)
matters relating solely to the internal personnel rules of the agency; (3) matters
specifically exempted from disclosure by statute, when such a statute either leaves no
discretion as to disclosure, or establishes particular criteria for withholding, or refers to
particular types of matters to be withheld; (4) privileged or confidential information such
as trade secrets; (5) accusations of crime or formal censuring; (6) matters of a personal
nature where disclosure would constitute an unwarranted invasion of privacy; (7)

investigatory records to the extent that such disclosure would interfere with enforcement
efforts, or violate a party's rights; (8) matters that if prematurely disclosed would frustrate
implementation of a proposed agency action; and (9) matters concerning the EEOC's
issuance of a subpoena or other participation in litigation. The EEOC can still open the
meeting to the public, despite these exemptions, if it finds that the public interest requires
it to do so. 67
A request that a meeting, or a portion of a meeting, be closed to the public may be
initiated by members of the Commission, the General Counsel, the Executive Director,
other Commission officials, or "interested persons." 68
Footnotes
Footnote 65. 5 USCS 552b.
Footnote 68. 29 CFR 1612.5, 1612.6.
1220 Annual reports

View Entire Section
The EEOC is required by Title VII to report to Congress and the President at the close of
each fiscal year concerning action it has taken and money it has disbursed. 69
Footnotes
Footnote 69. 42 USCS 2000e-4(e).
The EEOC's annual reports are available from the Superintendent of Documents,
Government Printing Office, Washington, D.C. 20402.
3. The Office of Federal Contract Compliance Programs [1221-1230]
1221 Introduction
View Entire Section

The Office of Federal Contract Compliance Programs (OFCCP) oversees the
nondiscrimination and affirmative action obligations of employers that contract with the
federal government.
The OFCCP is a component agency of the Labor Department's Employment Standards
Administration. 70 It is responsible for the administration and enforcement of Executive
Order 11246, 71 the EEO provisions of the Rehabilitation Act of 1973, 72 and the
Vietnam Era Veterans Readjustment Assistance Act of 1974. 73 It is headed by the
Director, and has ten Regional Offices and 56 Area and Field Offices. 74
Correspondence with the OFCCP may be directed to the Director, OFCCP, Employment
Standards Administration, Department of Labor, 200 Constitution Avenue, N.W.,
Washington, D.C. 20210. 75
Footnotes
Footnote 70. The OFCCP's parent agency, the Department of Labor, is noted at 1205,
and is discussed, generally in the Employment Coordinator EP-31,051 et seq.
Footnote 74.
Practice References List of OFCCP regional and field offices. Employment
Coordinator 31,172.
List of OFCCP regional and field offices. Employment Discrimination Coordinator
48,002.
1222 Basic powers and authority under Executive Order 11246

View Entire Section
The responsibility for administration and enforcement of Executive Order 11246, 76
assigned to the Secretary of Labor, 77 who has delegated the responsibility to the
Director of the OFCCP: 78
to adopt rules and regulations to achieve the purpose of the Executive Order; 79
is
to require government contracting agencies to include a specified equal opportunity

clause in every covered government contract or subcontract; 80
to require a covered contractor to furnish information and reports relating to
employment statistics, policies, and programs in a format it prescribes; 81
to gain access to a contractor's books, records and accounts in order to investigate
compliance with the Order; 82
to cancel, suspend or terminate all or part of a contract, declare a contractor ineligible
for future government contracts, or impose other sanctions and remedies when a covered
contractor is not in compliance with the Order or the rules and regulations issued
pursuant to the order; 83
to exempt a contracting agency, by rule or regulation, from the requirements of the
Order, in relation to specific contracts, subcontracts or purchase orders, because the work
is done outside of the U.S. and no internal recruitment of workers is involved; the
contract is for standard commercial supplies or raw materials; less than a specified
amount of money or number of workers is involved; or the work involves subcontracts
below a specified tier; 84
to investigate discrimination complaints by employees or prospective employees of a
covered contractor or subcontractor; 85
to notify the EEOC, the Department of Justice, or other appropriate federal agencies
when it has reason to believe that a labor organization or contractor is violating the Order
or federal civil rights or other laws; 86
to hold public or private hearings concerning the Order for the purposes of compliance,
enforcement, or education; 87
to publish the names of contractors or unions that fail to comply with the Order or its
implementing rules and regulations; 88
to recommend that criminal proceedings be instituted by the Department of Justice
when false information is furnished to it or contracting agencies; 89
to issue a Certificate of Merit to employers, labor unions, or agencies whose
employment practices conform with the Order and exempt holders of certificates from
any reporting requirements, or to revoke or suspend certificates; 90
to direct contracting agencies not to enter into contracts with any bidder or prospective
contractor that has not satisfactorily complied with the Order or submitted an acceptable
program for compliance. 91
Footnotes
Footnote 76. As to Executive Order 11246 generally, see 20 et seq. The OFCCP's
enforcement proceedings under Executive Order , see 11246 are discussed at
1452 et seq.
Footnote 77. Ex Or 11246 201; Ex Or 11246, as amended, appears in a note following

42 USCS 2000e.
Footnote 78. 41 CFR 60-1.2; Ex Or 11246 401.
Footnote 79. Ex Or 11246 201, 205.
Footnote 86. Ex Or 11246 207, 209.
Footnote 90. Ex Or 11246 213, 214, 215.
1223 Rulemaking power under Executive Order 11246

View Entire Section
The Director of the OFCCP has authority to adopt rules and regulations which are
necessary and appropriate to accomplish the purposes of Executive Order 11246. 92
Under this authority, the OFCCP has issued the following regulations:
Obligations of Contractors and Subcontractors, 41 CFR Part 60-1. 93
Affirmative Action Programs, 41 CFR Part 60-2. 94
Construction ContractorsAffirmative Action Requirements, 41 CFR Part 60-4. 95
Sex Discrimination Guidelines, 41 CFR Part 60-20. 96

Rules of Practice for Administrative Proceedings 41 CFR Part 60-30. 97
Examination and Copying of OFCCP Documents, 41 CFR Part 60-40. 98
Guidelines on Religious and National Origin Discrimination, 41 CFR Part 60-50. 99
Contractor Evaluation Procedures for Supplies and Services Contractors, 41 CFR Part
60-60. 1
Footnotes
Footnote 92. Ex Or 11246 201, 401; 41 CFR 60-1.2.
Footnote 99. 132 et seq., 156 et seq.
1224 Power to implement affirmative action for veterans

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Under the Vietnam Era Veterans Readjustment Assistance Act of 1974, 2 the OFCCP,
by delegation from the President and the Secretary of Labor, 3 has the following powers
and authority:
to issue regulations implementing the affirmative action requirements of the statute; 4
to require covered contractors to list all suitable employment openings with the
appropriate local employment service office, and to require those offices to give covered
veterans priority in referral to vacancies; 5
to take and investigate complaints of contractor noncompliance for purposes of taking

appropriate action under the statute and applicable regulations; 6
to require covered contractors to report, at least annually, on the number of covered
veterans employed, by job category and hiring location, as well as the number of covered
veterans hired in the reporting period, and the total number of persons hired during that
period. 7
1224 ----Power to implement affirmative action for veterans [SUPPLEMENT]
Statutes:
As amended in 1994, (38 USCS 4212(a)) excepts from the "all suitable employment
openings" requirement openings for executive and top management positions, positions
that are to be filled from within the contractor's organization, and positions lasting three
days or less.
Footnotes
Affirmative action requirements regarding the employment and advancement in
employment of qualified disabled veterans and Vietnam-era veterans under the Vietnam
Era Veterans Readjustment Assistance Act are discussed, generally at 23.
Footnote 3. Ex Or 11701 2; 41 CFR 60-250 et seq.
1225 Basic powers and authority under Rehabilitation Act

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Under the Rehabilitation Act of 1973, 8 the OFCCP, by delegation from the President
and the Secretary of Labor, 9 has the following basic powers and authority under the
Executive Order:
to issue regulations implementing the affirmative action requirements of the statute; 10
to take and investigate complaints of noncompliance by covered contractors, from any

covered handicapped individual, for the purpose of taking appropriate action consistent
with applicable regulations; 11
when required by special circumstances in the national interest, to exempt by regulation
all or part of a contract or subcontract from the requirements of the statute. 12
1225 ----Basic powers and authority under Rehabilitation Act [SUPPLEMENT]
Statutes:
In 1992, "disability" and variants of that term were substituted for "handicapped" and
variants throughout the Rehabilitation Act, including 29 USCS 7791. 29 USCS
793(c)(2) was added to allow the Secretary of Labor to waive certain affirmative action
requirements under the Rehabilitation Act.
Case authorities:
29 USCS 793 does not preempt claim of handicap discrimination brought under state
antidiscrimination statute. Ellenwood v Exxon Shipping Co. (1993, CA1 Me) 984 F2d
1270, 1 ADD 414, 2 AD Cas 415, 8 BNA IER Cas 364, 60 CCH EPD 41964, petition
for certiorari filed (Apr 1, 1993).
Footnotes
Footnote 9. Ex Or 11758; 2:; 41 CFR ; 60-741 et seq.
Footnote 12. 29 USCS 793(c); Ex Or 11758 3.
1226 Rulemaking under Rehabilitation and Veterans Acts

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Regulations regarding Veterans Act affirmative action obligations have been issued, and
designate primary enforcement responsibility to the Director of the OFCCP. 13
However, interpretation of the regulations has been reserved to the Secretary of Labor or
his designee. 14
Regulations regarding Rehabilitation Act affirmative action have also been issued, and
give primary enforcement responsibility to the Director of the OFCCP. 15 The
regulations cannot be changed without consultation among the Secretary of Labor, the
Secretary of Defense, and the Administrator of General Services. 16
The regulations promulgated under the respective statutes give the OFCCP the power to:
require certain contractors and subcontractors to prepare and maintain an affirmative
action program; 17
secure administrative enforcement of the respective statutes through the procedures
established under Executive Order 11246; 18
notify the heads of all contracting agencies that they may not issue a waiver of
affirmative action clause requirements with respect to noncomplying contractors, unless
the OFCCP Director's prior approval has been given. 19
Observation: The Rehabilitation Act specifically gives the President the power to
waive the requirements of the Act under certain circumstances, but the Veterans
Readjustment Act does not contain such a provision. Thus, the Secretary of Labor and
the OFCCP do not have the authority to grant waivers of the statutory requirements of
that Act despite contrary claims in 41 CFR 60-250.3(b). A spokesperson from the
OFCCP has indicated that no such waivers have ever been granted.
Recommendation: In the event the OFCCP attempts to exercise the waiver provision
of the Veterans Act regulations, concerned individuals may assert that the agency is
violating the separation of powers principle of the U.S. Constitution, thus any such
waiver is unconstitutional.
1226 ----Rulemaking under Rehabilitation and Veterans Acts [SUPPLEMENT]
Regulations:
through D). Applicability of the affirmative action program requirement is now covered
in 41 CFR 60-741.40.
Footnotes
Footnote 13. 41 CFR 60-250 et seq.
Footnote 14. 41 CFR 60-250.54.
Footnote 17. 41 CFR 60-250.5 (veterans); 41 CFR 60-741.5 (handicapped workers).
Footnote 18. 41 CFR 60-250.23 (veterans); 41 CFR 60-741.23 (handicapped
workers).
Footnote 19. 41 CFR 60-250.3(b) (veterans); 41 CFR 60-741.2(b) (handicapped
workers).
1227 Compliance manual

View Entire Section
The OFCCP has issued a compliance manual, which provides a single reference source
for enforcement of Executive Order 11246, 503 of the Rehabilitation Act of 1973, and
402 of the Vietnam Era Veterans Readjustment Assistance Act. The manual is
available on a subscription basis from the Superintendent of Documents, U.S.
Government Printing Office, Washington, D.C. 20402.
Observation: The manual is subordinate authority to the regulations, and any

inconsistency between the two is resolved in favor of the regulations.
1228 Internal directives

View Entire Section
The OFCCP issues internal directives on specific operating procedures that further define
and clarify general policies and procedures outlined in the regulations and the
Compliance Manual. Directives may be obtained by submitting appropriate Freedom of
Information Act requests, as outlined in EP-35,441 et seq. 20
Footnotes
Footnote 20. OFCCP Order Nos. 110a2 and 110a3 of April 7, 1982, provide an
explanation, classification, and general index of the agency's directives system.
Procedures for obtaining directives under the Freedom of Information Act are discussed
at 1956 et seq.
1229 Coordination with EEOC

View Entire Section
The OFCCP and the Equal Employment Opportunity Commission have agreed, in a
"Memorandum of Understanding," to minimize duplication of efforts in areas of
concurrent jurisdiction through improved consultation and information sharing. The
Memorandum:
permits the EEOC and the OFCCP to exchange information about employers in the
absence of any specific charge in order to facilitate the planning of compliance reviews
and investigations;
establishes an "interagency task group" to develop joint standards and procedures for
data sharing and the selection of industries and organizations for investigation;
effects a division of responsibilities which enables the OFCCP to concentrate on
combating job discrimination and promoting affirmative action with regard to groups of
employees, while the EEOC remedies complaints from individual parties and class
complaints under Title VII;
authorizes the OFCCP to "normally retain, investigate, and resolve" all systemic or class
complaints, although, "in appropriate cases," the EEOC may request referral of charges to
avoid duplication;
gives the OFCCP exclusive jurisdiction over charges by third parties who do not claim
to be personally aggrieved by the alleged discrimination, complaints that federal
contractors affirmative action plans are deficient, and complaints alleging violations of
either 503 of the Rehabilitation Act or 402 of the Vietnam Era Veterans Readjustment
Assistance Act;
gives the EEOC exclusive jurisdiction over charges under the Equal Pay Act and the
Age Discrimination in Employment Act;
changes previous policy concerning Freedom of Information Act (FOIA) requests by
requiring the agencies to coordinate their responses to such requests with the agency that
initially compiled or collected the information;
allows the EEOC to supply information compiled by the OFCCP to each state or local
"706" agency with whom the EEOC has a current charge resolution contract and a work
sharing agreement, if the state or local agency will not make the information public
without the written approval of the Director of the OFCCP. 21 Additionally, the EEOC
22 and the OFCCP 23 have issued regulations to coordinate their efforts to enforce the
ADA and 503 of the Rehabilitation Act, where jurisdiction over complaints under these
laws overlaps. The regulations also provide that both agencies will share any information
relating to the employment policies and practices of employers holding government
contracts or subcontracts, including affirmative action programs, annual employment
reports, complaints, charges, investigative files, and compliance review reports and files.
Furthermore, the EEOC may supply information compiled by the OFCCP to state or local
"706" agencies under the same restrictions as agreed to in the Memorandum of
Understanding at 46 Fed Reg 7435. 24
The OFCCP will follow Title VII rules for confidentiality of information received from
the EEOC, unless the information is also received from another source. 25
Footnotes
Footnote 21. 46 Fed. Reg. 7435 (1/81).
Footnote 23. 41 CFR Part 60-742.
Footnote 24. 29 CFR 1641.2(b), 41 CFR 60-742.2(c).
Complaint processing procedures provided in these regulations are detailed at 1376 et
seq.
Footnote 25. 29 CFR 1641.3, 41 CFR 60-742.3.
1230 Oversight of contracting agencies

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All contracting agencies which include all departments and agencies in the executive
branch and wholly owned government corporations, 26 must comply with the OFCCP's
regulations under Executive Order 11246, and are required to furnish any information
and assistance which the OFCCP requires. 27
Similarly, regulations governing the enforcement of affirmative action obligations to
veterans and handicapped individuals provide that each contracting agency must
cooperate with the OFCCP Director in the performance of his responsibilities. That
cooperation includes responsibility to insure that contractors are fully knowledgeable of
their obligations, to inform the OFCCP Director when a contractor is not in compliance,
and to take such actions regarding noncompliance as might be ordered by the Director.
28
Observation: Some independent agencies are not subject to the OFCCP's authority,
and have their own contract compliance regulations. While not discussed in this
treatment, they may be located in the Code of Federal Regulations as follows: 18 CFR
Part 1303 (Tennessee Valley Authority); 39 CFR 253.8 (United States Postal
Service); 41 CFR 1-12.800-1-12.814 (Federal Procurement Regulations); 41 CFR
8-12.800-8-12.813 (Veterans' Administration).
1230 ----Oversight of contracting agencies [SUPPLEMENT]
Regulations:
Footnotes
Footnote 28. 41 CFR 60-250.24(a) (veterans); 41 CFR 60-741.24(a) (handicapped
workers).
4. Merit Systems Protection Board [1231]
1231 Role in discrimination cases

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The Merit Systems Protection Board, the successor to the Civil Service Commission, is
empowered to hear matters arising out of Title 5 of the U. S. Code, dealing with
government employees. 29
A federal employee or applicant for employment who has
been affected by an adverse agency action which may be appealed to the Merit Systems
Protection Board, and alleges that a basis for the action was discrimination prohibited by
Title VII of the Civil Rights Act of 1964, 30 the Equal Pay Act, 31 the Rehabilitation
Act of 1973, 32 the Age Discrimination in Employment Act, 33 or any rule,
regulation, or policy directive prescribed under any such provision of law, the individual
may either appeal immediately to the Board, 34 or file a formal discrimination
complaint with the federal agency, 35
and later appeal the agency's decision on the
complaint to the Board or seek judicial review. 36
1231 ----Role in discrimination cases [SUPPLEMENT]
Regulations:
Footnotes
Footnote 29. The federal civil service system is generally discussed in 15A Am Jur 2d,
Civil Service 4.
Proceedings before the MSPB are generally covered in 16 Federal Procedure, L Ed,
Government Officers and Employees 40:507 et seq.
Practice References Proceedings before the MSPB. 16 Federal Procedure, L Ed,
Goernment Officers and Employees 40:507 et seq.
Footnote 33. 29 USCS 631, 633a.
Footnote 35. 5 CFR 300.104(c)(1).
Forms: Discrimination proceedings against federal agency. 10 Federal Procedural
Forms, L Ed, Government Officers and Employees 35:48, 35:49, 35:92.
Footnote 36. 5 USCS 7702(a); 29 CFR 1613.417(a).
B. Enforcement Proceedings [1232-1895.2]
Research References
5 USCS 553, 7702; 8 USCS 1324a, 1324b; 20 USCS 1681-1683; 28 USCS
602; 29 USCS 50-50b, 161, 206, 626, 633, 633a, 793, 794; 31 USCS 1221 et
seq.; 38 USCS 4212; 42 USCS 2000d, 2000d-1, 2000d-3, 2000e, 2000e-2,
2000e-4, 2000e-5, 2000e-6, 2000e-8, 2000e-9, 2000e-12, 2000e-16, 12111, 12117,
12203, 12213
FRCP 37; FRCP 81
Executive Orders 11246, 12067, 12086, 12250
5 CFR Parts 713, 900, 1201; 7 CFR Parts 15, 15b; 10 CFR Parts 4, 1040; 12 CFR
Part 268; 13 CFR Parts 112, 113, 540; 14 CFR Parts 125, 379, 382, 1250, 1251; 15
CFR Parts 8, 8b; 18 CFR Parts 1303, 1307; 22 CFR Parts 141, 142, 217; 24 CFR
Parts 1, 7, 8; 28 CFR Parts 41, 42, 44, 50, 68; 29 CFR Parts 18, 29, 30, 31, 32,
1601, 1602, 1613, 1614, 1620, 1626, 1641, 1691; 31 CFR Part 51; 32 CFR Parts 56,
300; 34 CFR Parts 104, 106; 38 CFR Part 18; 39 CFR Part 253; 41 CFR Parts 1-12,
8-12, 60-1, 60-2, 60-4, 60-30, 60-60, 60-126, 60-250, 60-741, 60-742, 101-108; 43
CFR Part 17; 45 CFR Parts 80, 84, 86, 605, 611, 1110, 1151, 1170, 1203, 1232,
1624; 49 CFR Parts 21, 27
43 Fed. Reg. 19807
48 Fed. Reg. 3570 (1/25/83)
49 Fed. Reg. 13873 (4/9/84)
52 Fed. Reg. 37408
52 Fed. Reg. 44973
57 Fed. Reg 12642, 4/10/92
57 Fed. Reg 12646, 4/10/92
57 Fed. Reg 12638-12639
10 Federal Procedural Forms, L Ed, Government Officers and Employees 35:71,
35:79.1, 35:79.2, 35:79, 35:91, 35:92; 12 Federal Procedural Forms, L Ed, Job
Discrimination 45:32, 45:33, 45:35, 45:36, 45:37, 45:39, 45:40, 45:41, 45:43,
45:44
5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Forms 81 et seq., 101, 111, 113-116
74-80
Employment Coordinator EP-33,400 et seq., EP-35,050 et seq., EP-35,071 et seq.
1. Title VII Proceedings [1232-1375]
a. In General [1232,1233]
1232 Generally
View Entire Section
Title VII creates a complex set of rules and procedures for the administrative resolution
of job discrimination charges based on race, color, religion, sex, and national origin. The
statute entrusts the implementation of these rules to the EEOC. Employees who feel they
have been victimized by discrimination must initiate administrative proceedings before
they can go to court
Under Title VII, the EEOC has no direct powers of enforcement, and cannot adjudicate
claims or impose administrative sanctions. 37
Nevertheless, the statute gives the
Commission a large and very important role in resolving job discrimination charges.
An outline of EEOC enforcement procedures under Title VII breaks down into five major
phases:
(1) the charging process; 38
(2) investigation of the charge; 39
(3) the decision whether to issue a reasonable cause determination; 40
(4) conciliation; 41
(5) compliance review. 42
These stages may be summarized as follows:
(1) The charging process.
Enforcement of Title VII rights begins with the filing of a charge of unlawful
employment discrimination with either the EEOC or, if one exists, a state or local
antidiscrimination agency. The charge must be filed within 180 days of the
discriminatory employment practice, although several doctrines have emerged which
serve to extend this time limit. Title VII provides for an exclusive period of state or local
jurisdiction before the EEOC can become involved. The EEOC will defer any charges
which haven't been filed with an appropriate state or local agency to the appropriate
agency. Only if a satisfactory resolution is not reached at the state or local level will the
EEOC commence processing the charge.
(2) Investigation of the charge.
Under an extremely broad grant of investigative authority, the Commission will conduct
interviews with the charging party and his witnesses and the respondent and its witnesses,
on-site tours, and on-the-job interviews with employees, and will also request the
respondent to furnish relevant data, records, and the like.
The EEOC is not limited in its investigation to informal requests for information,
however: it has subpoena power which it can use to compel the production of evidence,
documents, or personal testimony. If appropriate indications are made that the
respondent is willing to settle the matter, the EEOC will offer to enter into a
predetermination settlement with the respondent.
(3) Reasonable cause determination.
If a settlement is not entered into, the Commission will go on to make a determination, on

all the evidence it has gathered, of whether there is reasonable cause to believe that Title
VII has been violated. If the Commission determines that the charge is without
foundation, it will dismiss the charge and terminate its processing of the charge.
However, the Commission will mail a notification to the charging party concerning its
action, and will inform the charging party that its finding of "no cause" has no bearing on
the party's own right to bring suit under Title VII.
(4) Conciliation.
If the Commission determines that there is reasonable cause to believe that the charge is
true, processing of the charge will continue with conciliation efforts. Although the
EEOC has no enforcement or compulsory powers, it is charged by Title VII with the duty
of attempting, through informal methods of conference, conciliation, and persuasion, to
eliminate Title VII violations. The EEOC has developed an extensive set of conciliation
standards which it will attempt to impose on a respondent found to have violated Title
VII. If the respondent agrees to a conciliation agreement acceptable to the Commission,
the agreement will be signed as an enforceable contract.
Compliance review.
If a conciliation agreement is signed, the EEOC will undertake compliance review
procedures to make sure the respondent adheres to the agreement. This can eventually
lead to the case against the respondent being closed.
Footnotes
Footnote 37. Alexander v Gardner-Denver Co. (1974) 415 US 36, 39 L Ed 2d 147, 94 S
Ct 1011.
1233 Checklist of administrative time limits

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Title VII imposes a number of time limits on its administrative processing requirements.
These limits are gathered here in a ready-reference checklist, with cross references to
where the detailed discussion of each limitation period will be found.

A charge of Title VII discrimination must be filed with the EEOC within 180 days of the
occurrence of the discriminatory practice alleged, unless:
a prior charge has been filed with a state deferral agency, in which case the charge filing
period is 300 days;
final notice has been received from a state agency that it has finished processing the
charge, in which case the charge filing period is 30 days from receipt of the notice, or
300 days after the occurrence of the discriminatory act, whichever occurs first. 43
Sixty days must elapse after the filing of a charge with a state or local agency before the
same charge can be filed with the EEOC, unless the state law which created the state or
local agency is in its first year of operation, in which case the period is 120 days 44 or
the state or local agency has waived its exclusive processing right. 45 These time limits
establishing a period of exclusive state or local jurisdiction over a charge also comprise
the length of the EEOC's "deferral" period. 46
The EEOC must notify a respondent that it has been named in a Title VII charge within
ten days after the EEOC receives the charge. 47
The EEOC should make its determination on reasonable cause within 120 days after
receiving a charge or after getting a charge back from a state agency to which it has
deferred the charge. 48
Discussed elswhere is the question of whether compliance with Title VII administrative
time limits is a jurisdictional prerequisite to the maintenance of a lawsuit in federal
district court, 49 and the question of time limitations applicable to Title VII court
proceedings. 50
Footnotes
Footnote 45. 1244.
Footnote 46. 1243.
b. The Charging Process [1234-1329]

(1). In General [1234-1236]
1234 Overview
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Go to Supplement
Enforcement procedures under Title VII begin with the filing of a charge with either a
state or local agency, in states or localities which have an enforceable antidiscrimination
law, 51 or with the Equal Employment Opportunity Commission in other states or
localities. If a person in a state or locality which has such law goes to the EEOC first, the
EEOC will "defer" the charge to the state or local agency for a certain period of time
before it begins processing the charge itself. 52 A charge can be filed by an aggrieved
person, a commissioner, or a person or organization on behalf of an aggrieved person 53
at any office of the EEOC either by mail or in person. 54
A "charge" is any written, sworn statement 55 which alleges that a violation of Title VII
has occurred and which is directed against a "respondent" (that is, a charged person or
organization) covered by Title VII. 56 A charge already filed can be amended to cure
any technical defect or to add new allegations. 57 Withdrawals of charges can only be
made with the EEOC's permission. 58 Unless a court action arises from a charge, the
contents of the charge are kept confidential. 59
The charge must be timely filed. 60 Once properly filed, the charge will be processed
through one of five administrative systems, 61 or dismissed. 62
1234 ----Overview [SUPPLEMENT]
Practice Aids: The charge-filing requirement of the Age Discrimination in
Employment Act: accrual and equitable modification, 91 Mich LR 798 (1993).
Footnotes
Footnote 51. 1241.
Footnote 52. 1242.
Footnote 53. 1238.
Footnote 54. 1250.
Footnote 55. 1264.
Footnote 56. 1263.

Footnote 57. 1265.
Footnote 58. 1268.
Footnote 59. 1236.
Footnote 60. 1271.
Footnote 61. 1251.
Footnote 62. 1270.
1235 Chart: model for charge processing

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PLEASE SEE PRINTED VOLUME FOR CHART
1236 Confidentiality of charges

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Charges cannot be made public by the Commission. 63
The Commission interprets this to mean that a charge should not be made a matter of
public information by the Commission prior to the institution of a judicial proceeding
involving that charge. 64
Caution: Regulations exempt charging parties and their representatives to some

extent. 65
State aspects: Some state FEP agencies may be subject to state or local "sunshine
laws" that prevent them from restricting public inspection of most documents relating
to a complaint.
Footnotes

Annotation: Disclosure of information by Equal Employment Opportunity
Commission or other agency as affected by 42 USCS 2000e-8(e), making it unlawful
for officer or employee of Commission to make public information obtained by
Commission, prior to institution of proceeding involving such information, 47 ALR
Fed 471.
Footnote 64. 29 CFR 1601.22.
Footnote 65. For a full discussion of the procedures concerning disclosure of information
to such individuals, see 1956 et seq.
(2). Who May File a Charge [1237-1240]
1237 Charges by "aggrieved" individuals

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Go to Supplement
Title VII allows charges to be filed by any "person claiming to be aggrieved." 66
Thus, not only employees or applicants may file charges, but a union may be "person
aggrieved" under Title VII. 67 Other potential "persons aggrieved" against employment
agencies can include applicants or potential applicants alleging discriminatory referrals,
and employees or former employees of employment agencies alleging personal injury
resulting from the discrimination. The latter group includes employees who are retaliated
against for refusing to discriminate or for presenting evidence of discrimination, those
who are forced to implement the agency's discriminatory policies, and those who are
subject to a hostile work environment due to pervasive discrimination. 68
The charging party normally must suffer some harm as a result of the alleged unlawful
employment practice under Title VII. The EEOC has found that there was a sufficient
demonstration of the necessary "harm" when:
the alleged unlawful employment practice concerned a contingent rather than an already
vested interest in an employer's benefit plan. 69 the charging party was of a different
race from the one against which the alleged discrimination was being directed. 70
the spouse of a deceased employee sought relief from the discriminatory effects of the
employer's benefit plan; 71
a union challenged an employer's sex discrimination against women, even though there
were no female members in the bargaining unit. 72
The EEOC makes an exception from its normal rule regarding standing in the case of
"testers." The EEOC has taken the position that "testers" may file complaints under Title
VII, since the statute prohibits discriminatory employment decisions regardless of the
intent of the person seeking an employment opportunity. "Testers" are individuals who
apply for employment opportunities for the sole purpose of uncovering unlawful
discriminatory practices, usually acting on behalf of civil rights organizations or
enforcement agencies. They are typically comprised of members of a group protected
under the statute and others with similar or identical qualifications who are of different
races or sexes, so that different treatment they receive from prospective employers is
evaluated in the context of potential unlawful actions. The use of "testers" is well
established in the area of investigating potentially discriminatory housing practices. 73
Observation: The other exceptions to the requirement that the charging party must
show some "harm" are commissioner charges 74 and charges filed on behalf of an
aggrieved person. 75
A person claiming to be aggrieved has the responsibility to provide the EEOC with notice
of any change in address and with notice of any prolonged absence from a current
address so that he or she can be located when necessary during the EEOC's consideration
of the charge. 76
Caution: A failure to keep the EEOC informed as to a charging party's whereabouts,

which results in an inability to locate the charging party, or a substantial delay in the
processing of a charge, may cause the charge to be dismissed. 77
1237 ----Charges by "aggrieved" individuals [SUPPLEMENT]
Practice Aids: In response to Fair Employment Council of Greater Washington, Inc. v.
BMC Marketing Corp.: Employment testers do have a leg to stand on, 80 Minn LR
1:123 (1995).
Footnotes
Footnote 66. 42 USCS 2000e-5(b); 29 CFR 1601.7(a).
Forms: ComplaintsTo administrative agencyDiscrimination in employment. 5A
Am Jur Pl & Pr Forms (Rev), Civil Rights, Forms 81 et seq.
AllegationImposition of non-job related employment standard of masculine
stereotypical personality traits. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form
115.
AllegationSex discrimination by employerRefusal to hire female based on
minimum weight qualifications. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form
111.
AllegationAssignment to all-black job positions and refusal to promote employee.
5A Am Jur Pl & Pr Forms (Rev), Civil Rights, Form 101.
AllegationReverse discriminationDenial of promotion to male employee in favor
of less qualified female employee. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights,
Form 113.
AllegationSexual harrassment. 5A Am Jur Pl & Pr Forms (Rev), Civil Rights,
Form 114.
AllegationDenial of promised promotion based upon sex. 5A Am Jur Pl & Pr
Footnote 67. Schoeppner v General Tel. Co. (1976, WD Pa) 417 F Supp 453, 14 BNA
Footnote 69. EEOC Decision No. 70-75 (8/13/69) CCH EEOC Decisions 6049, 2 BNA
FEP Cas 227.
Footnote 70. EEOC Decision No. 76-89 (1/23/76) CCH EEOC Decisions 6667.
Footnote 71. Mixson v Southern Bell Tel. & Tel. Co. (1971, ND Ga) 334 F Supp 525, 4
BNA FEP Cas 27, 4 CCH EPD 7606; EEOC Decision No. 71-1580 (4/8/71) CCH
EEOC Decisions 6225, 3 BNA FEP Cas 812.
Footnote 72. EEOC Decision No. 71-1547 (3/30/71) CCH EEOC Decisions 6228.
Footnote 74. 1239.
Footnote 75. 1238.
Footnote 77. 1270.
1238 Third party charges on behalf of an "aggrieved" individual

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While Title VII only permits a private lawsuit to be brought by the aggrieved person, if it
is not brought by the EEOC or by the government, the jurisdictional prerequisite of filing
a charge with the EEOC is met when charges are filed on behalf of the aggrieved person
by third parties. 78
A Title VII charge can be filed on behalf of an aggrieved person by an individual agency,
or organization. 79
When this procedure is utilized, the person filing the charge
(who is called the "charging party" throughout the administrative processing) must
provide the EEOC with the name, address, and telephone number of the person on whose
behalf the charge is made, even though the written charge does not have to identify that
person. 80 The person on whose behalf the charge is made may request that the EEOC
keep his or her identity confidential from everyone except federal, state, or local agencies
that have agreed to keep such information confidential. 81
During its investigation, the EEOC will verify that the person or group who made the
charge was authorized to do so. 82
As a general rule, a labor organization may file a charge on behalf of its members or
prospective members of the collective bargaining unit, or both, even though the union
allegedly assented, through its collective bargaining agreement, to the discrimination
with which it was charging the employer. 83
State aspects: It may not be possible to file a third party charge with particular state
or local FEP agencies, depending on the enabling legislation and the regulations of
those bodies.
Footnotes
Footnote 78. United Textile Workers v Federal Paper Stock Co. (1972, CA8) 461 F2d
849, 4 BNA FEP Cas 907, 4 CCH EPD 7876, 16 FR Serv 2d 185.
Footnote 79. 42 USCS 2000e-5(b), 2000e-6(e); 29 CFR 1601.7(a).
Forms: Certification of chargeBy third party (EEOC Form 151 (3-84)) [29 USCS
626(d); 42 USCS 2000e-5(b)]. 12 Federal Procedural Forms, L Ed, Job
1239 Commissioner charges

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A Title VII charge may also be filed by an EEOC Commissioner. 84 A Commissioner
charge must be in writing, signed, and verified. 85 Commissioner charges are deferred
to state or local FEP agencies only on the written request of those agencies, within ten
days of receiving notice of the filing of the charge. 86
When an FEP agency had not waived the right to process a Commissioner charge, the
EEOC was required to defer the charge to that agency for 60 days before a federal court
action could be commenced. 87
Observation: A worksharing agreement 88 may include a provision that all

Commissioner charges within the jurisdiction of an FEP agency will be automatically
waived to EEOC for initial processing.
State aspects: An FEP agency may not have jurisdiction to process an EEOC
commissioner's charge, depending on the definition of who may file a complaint under
the applicable state law or local ordinance.
Any person or organization may request of the nearest district office to file a
commissioner charge to inquire into allegations of individual or systematic
discrimination. 89
Footnotes
Footnote 85. 29 CFR 1601.11(a).
Forms: NoticeOf charge of discrimination (EEOC Form 131 (3-84)) [42 USCS
2000e et seq; 29 CFR Part 1601]. 12 Federal Procedural Forms, L Ed, Job
Footnote 87. Motorola Inc. v EEOC (1972, CA9) 460 F2d 1245, 4 BNA FEP Cas 755, 4
CCH EPD 7834, on remand (DC Ariz) 5 BNA FEP Cas 1379, 6 CCH EPD 8787, app
dismd (CA9) 8 BNA FEP Cas 1007.
Footnote 88. 1245.
1240 Right to file a charge cannot be waived

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Go to Supplement
In a case brought under the ADEA, a court has concluded that an individual's waiver of
rights under a job discrimination statute, while it may preclude relief for that individual
in a subsequent suit, may not prevent him from filing a charge or participating in an
EEOC proceeding on the same subject matter. 90
Observation: The reasoning of Cosmair, Inc., supra, is equally applicable to Title

VII claims. Furthermore, the Older Workers Benefit Protection Act amendments to the
ADEA have codified the decision in that case 91 and are likely to be followed by
courts facing similar situations under Title VII.
Observation: Although employees should not be permitted to seek individual relief

after a valid settlement of their claims, the EEOC should not be deprived of
information concerning employment practices which may impact on other employees
merely because one employee chooses to settle an individual claim.
However, it is not against public policy for a claimant to agree voluntarily not to
participate any longer in processing a charge except by subpoena, where the EEOC's
ability to pursue other discrimination charges against the employer would not be
unlawfully hindered. 92
1240 ----Right to file a charge cannot be waived [SUPPLEMENT]
Case authorities:
Title VII claims may be waived by agreement, but such waiver must be knowing and
voluntary. Brown v B & D Plastics (1994, MD Ala) 873 F Supp 1511, 67 BNA FEP Cas
132.
Footnotes
Footnote 90. EEOC v Cosmair, Inc., L'Oreal Hare Care Div. (1987, CA5) 821 F2d 1085,
8 EBC 2185, 44 BNA FEP Cas 569; 52 Fed. Reg. 32295.
Footnote 92. Hoffman v United Telecommunications, Inc. (1988 DC Kan) 687 F Supp
512.
(3). Filing With State and Local Agencies [1241-1248]
1241 Filing first with state or local agency

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The procedure for filing an employment discrimination charge under Title VII reflects
the Congressional policy of deference to local authority. Thus, the charge must first be
filed with a state or local agency if it has concurrent jurisdiction over the alleged
violation. 93
Although deferral is not required if a state or local agency is not empowered to grant
effective relief, 94 it is required if the state law provides sufficient relief, 95
even if
not all remedies available under Title VII are provided. 96
Footnotes
Forms: NoticeOf charge of discriminationIn jurisdictions where FEP agency will
initially process (EEOC Form 131-A(3-84)) [42 USCS 2000e et seq; 29 CFR Part
1601]. 12 Federal Procedural Forms, L Ed, Job Discrimination 45:35.
Footnote 94. 1249.
Footnote 95. White v Dallas Independent School Dist. (1978, CA5) 581 F2d 556, 18
BNA FEP Cas 204, 18 CCH EPD 8655; Mitchell v Mid-Continent Spring Co. (1972,
L Ed 2d 589, 93 S Ct 1363, 5 BNA FEP Cas 587, 5 CCH EPD 8463; EEOC v Union
Bank (1968, CA9) 408 F2d 867, 1 BNA FEP Cas 429, 69 BNA LRRM 2417, 1 CCH
EPD 9911, 58 CCH LC 9157.
Practice References Initial action by state agency; deferral requirements. 21 Am Jur
Trials 1, Employment Discrimination Action Under Federal Civil Rights Acts
74-78.
Footnote 96. White v Dallas Independent School District (1978, CA5) 581 F2d 556, 18
Annotation: Sufficiency of state remedy under 42 USCS 2000e-5(c) to require
60-day deferral by Equal Employment Opportunity Commission to allow state time to
act, 45 ALR Fed 347.
1242 Deferral to state or local agency

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To handle situations in which charges are first filed with the EEOC which properly
should have gone first to a state or local agency, the EEOC has evolved a practice known
as "deferral," so that the charging parties will not lose any rights under Title VII because
they mistakenly came to the Commission first. 97 The Supreme Court has approved this
deferral procedure. 98
If the EEOC receives a charge which appears to be subject to the jurisdiction of a state or
local agency, and that agency has not waived its right to an initial period of exclusive
processing, the EEOC will send a copy of the charge by registered mail, return receipt
requested, to the appropriate state or local agency, or (where the state or local agency has
consented) by certified or regular mail, or by hand delivery. 99
When the EEOC defers the charge, it notifies the charging party that the charge has been
forwarded to the state or local FEP agency. 1
Caution: Deferral of a charge does not toll (suspend) the running of the 300 day
charge filing statute of limitations. 2
Footnotes
Footnote 97. EEOC Decision No. 71-460 (Nov. 10, 1970), CCH EEOC Decisions 6175,
3 BNA FEP Cas 95.
Footnote 98. Love v Pullman Co. (1972) 404 US 522, 30 L Ed 2d 679, 92 S Ct 616, 4
Practice References Initial action by state agency; deferral requirements. 21 Am Jur
Trials 1, Employment Discrimination Action Under Federal Civil Rights Acts
74-78.
Footnote 99. 29 CFR 1601.13(a)(4)(i)(B).
Footnote 1. 29 CFR 1601.13(a)(4)(i)(C).
Footnote 2. 1274.
1243 Deferral period

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No charge may be filed with the EEOC by the person aggrieved until 60 days after
proceedings have begun under the state or local law, unless the state or local proceedings
are terminated earlier. 3
During the first year after the effective date of such a state or local law prohibiting
employment discrimination, the 60-day period of exclusive state or local jurisdiction is
extended to 120 days. 4
State or local proceedings are deemed to have begun on the date the charge is mailed or
hand delivered. 5 If any requirement for the commencement of the state or local
proceedings is imposed other than a requirement for the filing of a written, signed
statement of the facts on which the charge is based, the state or local proceeding is
regarded as having been started at the time such a statement was sent by registered mail
to the appropriate state or local authority. 6

Title VII requires only that the EEOC refrain from processing a charge for 60 days
following institution of the state or local action. It does not require that state or local
remedies be exhausted prior to federal action. 7
Upon expiration of the deferral period or upon termination of processing by the state or
local agency, the EEOC asserts jurisdiction over the charge automatically, and the
charging party or his representative need not resubmit the charge to the EEOC. 8
Observation: The deferral period is part of and is not separate and distinct from the
300-day charge filing period. 9 However, a Title VII charge filed by an EEOC
Commissioner is not subject to the 60-day deferral requirement unless the state or local
agency requests deferral. 10
Footnotes
Footnote 3. 42 USCS 2000e-5(c); 29 CFR 1601.13(a)(3)(ii).
Practice References Administrative and procedural requirements of Title VII. 21 Am
Jur Trials 1, Employment Discrimination Action Under Federal Civil Rights Acts
72 et seq.
Footnote 4. 42 USCS 2000e-5(c); 29 CFR 1601.13(a)(3)(ii).
Footnote 5. 29 CFR 1601.13(a)(4)(i)(B).
Footnote 7. Shudtz v Dean Witter & Co. (1976, SD NY) 423 F Supp 48, 13 BNA FEP
Cas 1297, 13 CCH EPD 11379.
Practice References Administrative and procedural requirements of Title VII. 21 Am
Jur Trials 1, Employment Discrimination Action Under Federal Civil Rights Acts
72 et seq.
Footnote 8. Anderson v Methodist Evangelical Hospital, Inc. (1972, CA6) 464 F2d 723,
4 BNA FEP Cas 987, 4 CCH EPD 7901; Moore v Sunbeam Corp. (1972, CA7) 459 F2d
811, 4 BNA FEP Cas 454, 4 BNA FEP Cas 1218, 79 BNA LRRM 2803, 81 BNA LRRM
2158, 4 CCH EPD 7722, 5 CCH EPD 8005, 67 CCH LC 12504.
Footnote 9. 1274.
Footnote 10. 1239.
1244 State waiver of deferral
View Entire Section

State and local agencies may waive their deferral rights to initial processing
responsibilities. 11 A state agency may do so by entering a worksharing agreement
with the EEOC, 12 or at the charging party's request. 13
This kind of waiver constitutes a "termination" of the state proceeding prior to the close
of the 60-day deferral period, 14 unless the agency makes express statements to the
contrary. 15 An agency's waiver of its exclusive 60-day period for initial processing of a
discrimination charge, under a worksharing agreement with the EEOC, also constitutes a
"termination" of state proceedings. The EEOC may deem such charges to be filed, and
begin immediate processing, even if the state agency reserves the right to reactivate its
proceedings after EEOC's resolution of the charge. Deference is due EEOC's
interpretation of "terminate" to include a state agency's decision that it will not proceed,
if it does at all,for at least a specified interval of time. 16
Observation: If a charging party files first with a state or local agency, a waiver
effectively gives him more time to file a charge with the EEOC. The 240 days
ordinarily remaining out of the 300 day charge filing period, counting the 60 day
deferral period as part of the 300 days, 17 is increased.
A worksharing agreement may waive a state agency's initial processing rights over one
kind of charge but not over another. For example, a worksharing agreement waived initial
processing of Commissioner-filed charges, thereby giving the EEOC exclusive
jurisdiction over them for 60 days, 18 while automatically deferring initial processing
rights over charges filed by individual complainants. 19
Footnotes
Footnote 12. Douglas v Red Carpet Corp. (1982, ED Pa) 538 F Supp 1135, 31 BNA FEP
Cas 62, 31 CCH EPD 33509.
As to worksharing agreements, see 1245.
Footnote 13. Morgan v Sharon Pennsylvania Bd. of Education (1978, WD Pa) 445 F
Footnote 14. Morgan v Sharon Pennsylvania Bd. of Education (1978, WD Pa) 445 F
Supp 142, 19 BNA FEP Cas 1042; Douglas v Red Carpet Corp. (1982, ED Pa) 538 F
Supp 1135, 31 BNA FEP Cas 62, 31 CCH EPD 33509; Yeung v Lockheed Missiles &
Space Co. (1980, ND Cal) 504 F Supp 422, 24 BNA FEP Cas 1070.
Footnote 15. Yeung v Lockheed Missiles & Space Co. (1980, ND Cal) 504 F Supp 422,
Footnote 16. EEOC v Commercial Office Products Co. (1988, US) 100 L Ed 2d 96, 108
S Ct 1666, 46 BNA FEP Cas 1265, 46 CCH EPD 37964
Footnote 17. 1274.
Footnote 18. 1239.
Footnote 19. EEOC v Dillard Dept. Stores, Inc. (1991, WD Tenn) 768 F Supp 1247, 55
1245 Worksharing agreements with FEP agencies

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The EEOC has authority to enter into written agreements with an FEP agency 20
concerning the processing of charges within their mutual jurisdiction. 21
Where worksharing agreements are in effect, the EEOC will award annual contracts to
process Title VII charges to FEP agencies. Under funding principles approved by the
Commission, those agencies must meet certain standards of capability, performance, and
compatibility with EEOC's charge processing systems and methods. Under this
procedure, FEP agencies contract to process to a conclusion, a minimum number of
charges at a fixed price per charge plus incentives for exceeding specific goals. The
worksharing agreement is required as a condition of a charge resolution contract.
Moreover, worksharing agreements provide for a dual filing of charges and identify
certain categories of charges for which the EEOC or the FEP agency has initial
processing authority. The agency that relinquishes initial processing authority refrains
from processing until the other agency completes its proceedings. 22
Observation: Because there are no restrictions on how charges subject to a

worksharing agreement may be divided between the EEOC and the respective FEP
agencies, various arrangements have been negotiated. The common caseload may be
divided by geographical proximity, where the charge was initially filed, alphabetically
by respondent, according to the types of industry or commerce affected by the charge,
or numerous other divisions mutually acceptable to the EEOC district office and the
FEP agencies involved. Such agreements are amended and renegotiated on an annual
or as-needed basis. Copies of worksharing agreements are available for public
inspection at EEOC district offices.
Recommendation: An employer located in an area in which there are FEP agencies,

or a complainant who wishes to avoid delay in having a charge processed, should
discover in advance which agency will initially process a particular discrimination
charge by inspecting the worksharing agreement at the appropriate EEOC district
office.
When charges have been filed both with the EEOC and an FEP agency, and the FEP
agency has initial processing responsibility, the EEOC will take no further action on the
charge until the FEP agency issues its final findings and orders or terminates its
proceedings. The EEOC may, however, commence judicial action during the deferral
period to obtain immediate, temporary, or preliminary injunctive relief. 23 Under
similar circumstances, when the EEOC has initial processing responsibility, the FEP
agency may terminate its proceedings or hold them in abeyance until the EEOC's
disposition of the charge. 24
A determination of "no reasonable cause" by an FEP agency does not bar the EEOC from
conducting its own investigation and issuing a contradictory determination under Title
VII. 25
Worksharing agreements do not have to be published in the Federal Register. 26
Footnotes
Footnote 20. 1246.
Footnote 25. EEOC v Graphics Press, Inc. (1988, SD Fla) 676 F Supp 250, 46 CCH EPD
37992.
Footnote 26. EEOC v Ocean City Police Dept. (1985, DC Md) 617 F Supp 1133, 38
36084, reh gr, en banc (CA4) 795 F2d 368, 43 BNA FEP Cas 1648 and revd, en banc on
other grounds (CA4) 820 F2d 1378, 44 BNA FEP Cas 97, 43 CCH EPD 37235, vacated
on other grounds 486 US 1019, 100 L Ed 2d 223, 108 S Ct 1990, 46 BNA FEP Cas
1360, 47 CCH EPD 38096.
1246 FEP agencies

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State and local agencies to which the EEOC must defer are called FEP agencies. 27
FEP agencies of particular states are identified in EP-32,521.
The
In most instances, an FEP agency that wishes to receive deferred charges from the EEOC
must apply to the EEOC for designation as an FEP agency. However, if the EEOC is
aware that the agency meets the criteria for designation as an FEP agency, it will defer
charges despite the lack of a request to do so. 28

If there is more than one FEP agency that has geographical jurisdiction over a charge, the
EEOC has administrative discretion as to the one to which it will defer. 29 This
discretion may already have been exercised by the terms of a worksharing agreement. 30
Footnotes
Footnote 28. 29 CFR 1601.70(b).
Footnote 29. 29 CFR 1601.70(d).
Footnote 30. 1245.
1247 "Notice agencies"

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There are state and local agencies other than FEP agencies, 31 known as "notice
agencies," to which the EEOC does not defer charges, but only gives notice of charges
served on it. 32
Footnotes
Footnote 31. 1246.
Footnote 32. 29 CFR 1601.74.
1248 Certified agencies

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Although the EEOC eventually takes jurisdiction over a deferred case, it may relieve
itself of individual review of cases processed by an FEP agency by certifying the agency.
This means that the Commission will accept the agency's findings and conclusions
without a case-by-case substantial weight review except when such charges are closed by
the certified agency for lack of jurisdiction, as a result of unsuccessful conciliation, or
where the charge involves an issue currently designated by the EEOC for priority review.
33
However, an employer or charging party may request EEOC review of the final decision
of a certified FEP agency under the substantial weight standards 34 within 15 days of
that decision. 35
Practice guide: For a complete listing of certified agencies in particular states, see
Employment Coordinator EP-32,524.
Footnotes
Footnote 33. 29 CFR 1601.77.
As to the procedure for priority review, see 1353.
Footnote 34. 1246.
Footnote 35. 29 CFR 1601.76.
(4). Filing With EEOC [1249-1267]
1249 When to file directly with EEOC

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If no state or local authority has been established under which a party can seek civil relief
or institute criminal proceedings, the charge should be filed directly with the EEOC
within 180 days of the alleged discriminatory practice. 36 If the state or local agency is
not empowered to afford a complainant adequate or effective relief, the charge also
should be filed directly with EEOC. 37
For example, a deferral by the EEOC was not required, where the time limit for filing a
state or local complaint had already run. 38
When charges allege job discrimination issues not covered by the state or local
antidiscrimination law, in whole 39 or in part, 40 the EEOC retains initial processing
responsibility for all such issues in any charge. 41
Footnotes
Footnote 36. 29 CFR 1601.13(a)(1); General Ins. Co. v EEOC (1974, CA9) 491 F2d
Footnote 37. EEOC v United States Fidelity & Guaranty Co. (1976, DC Md) 420 F Supp
Footnote 38. Stringer v Pennsylvania, Dept. of Community Affairs, etc. (1978, MD Pa)
Footnote 39. 29 CFR 1601.13(a)(2).
FEP Cas 410.
Footnote 41. Nueces County Hospital Dist. v EEOC (1975, CA5) 518 F2d 895, 11 BNA
FEP Cas 289, 10 CCH EPD 10379; Cunningham v Litton Industries (1969, CA9) 413
F2d 887, 1 BNA FEP Cas 861, 71 BNA LRRM 2889, 2 CCH EPD 10033, 60 CCH LC
9275; Barela v United Nuclear Corp. (1972, CA10) 462 F2d 149, 4 BNA FEP Cas 831,
4 CCH EPD 7857, 16 FR Serv 2d 218.
1250 Manner of filing, generally

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A charge of unlawful employment discrimination under Title VII may be filed in person
or by mail, either (1) at the EEOC's offices in Washington, D.C., (2) with any designated
EEOC representative, or (3) at any of the EEOC's district or area offices. 42
How a charging party goes about putting a charge in the hands of the EEOC is irrelevant
to any right of the employer. Thus, a charge that was addressed to a regional director of
the EEOC at his residential address as a private individual is still effective. 43
The EEOC may dismiss charges without an investigation if they do not state a violation
of Title VII, are untimely, or fail to assert the required jurisdictional prerequisites. 44
The EEOC will not refuse to take a charge from anyone with valid allegations, even if the
charging party comes to the EEOC office without sufficient information to allow an
investigation to begin. 45
Footnotes
For a list of addresses of EEOC offices, see Employment Coordinator EP-31,341 et seq.
Footnote 43. Georgia Power Co. v EEOC (1969, CA5) 412 F2d 462, 1 BNA FEP Cas
1251 Charge processing methods, generally

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The EEOC uses different charge processing methods, depending on the type of charge
involved, the stage of investigation, and the EEOC's priorities. 46
Footnotes
Footnote 46. As to the particular charge processing methods, see 1252 et seq.
1252 --"Rapid Charge Processing"

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Charges warranting priority handling under Rapid Charge Processing include those
alleging:
retaliation or otherwise warranting preliminary relief, as, for example, the use of
discriminatory help-wanted ads, racial and/or sexual harassment, or imminent destruction
of records; 47
violations of more than one federal discrimination statute, especially when the two-year
limitations period of either the ADEA or the EPA is expiring. 48
Once all of the evidence has been obtained from the parties and other witnesses, the
Commission will determine the appropriate steps to take in resolving the charge. The
options available at this point include:
(1) conducting a pre-determination interview with the charging party to elicit any
additional facts that may bear on a cause or no-cause recommendation, and then
preparing a memorandum recommending dismissal of the charge; 49
(2) preparing a memorandum recommending issuance of a reasonable cause
determination and submitting the file for review concerning whether the case should
proceed to litigation; 50
(3) initiating a formal settlement attempt; 51
(4) scheduling a factfinding conference( EP-32,563); 52

(5) investigating the charge under extended or systematic investigation procedures. 53
Footnotes
Footnote 48. EEOC Compliance Manual 2.8(b).
1253 --"Extended Charge Processing"

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Where the EEOC concludes that completion of the investigation will require continuing
legal assistance and substantial EEOC resources, the case will be considered for
reassignment to the extended charge processing enforcement team. 54
Footnotes
The procedure used to process these charges, which normally are not suitable for a fact
finding conference, is discussed in detail at 1334 et seq.
1254 --Systemic Program

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Under its Systemic Program, the EEOC seeks to identify those situations where the
patterns of job discrimination are most serious and the maintenance of a broad-ranging
enforcement proceeding will have a significant positive impact on the employment
opportunities available to minorities and women. 55
Most of the charges in the Systemic Program are Commissioner charges, but both new
and old charges filed by private parties may be selected for processing in this Program if
the alleged practices meet one or more of the following criteria:
continuance of a policy or practice that results in low utilization of available minorities
or women despite a clear obligation under Title VII to recruit, hire and promote such
persons; 56
employment of a substantially smaller proportion of minorities or women than other
employers in the same labor market who employ persons with the same general level of
skills; 57
employment of a substantially smaller proportion of minorities or women in higher paid
job categories than in lower paid job categories; 58
maintenance of policies or practices that have an adverse impact on minorities or
women and are not justified by business necessity; 59
use of employment practices that have had the effect of restricting or excluding
available minorities or women from significant employment opportunities, where the user
is likely to serve as a model for other employers because of such factors as the number of
its employees, its impact on the local economy, or its competitive position in the
industry; 60
presence of an expanding workforce or a significant turnover rate with a substantial
number of employment opportunities and the use of practices which may not provide
available minorities or women with fair access to those opportunities. 61
These standards for selecting systemic cases are meant for internal guidance, and do not
create rights on the part of any potential respondent, or any obligation on the part of the
Commission to proceed against a particular employer. 62
Systemic respondents who are named in Commissioner charges are most often selected
through the application of the above criteria to an analysis of periodic EEOC reporting
data and other available information in the EEOC's files, but recommendations from
individuals and organizations are also considered. 63 As part of its Systemic Program,
64 the EEOC often selects companies with large numbers of outstanding charges,
consolidates those charges, and attempts to conciliate all of them simultaneously. This
strategy has received judicial approval, with one court saying that such efforts are
consistent with the statutorily mandated duty of conference, conciliation, and persuasion
embodied in Title VII. 65
New charges filed by private parties may be consolidated with a systemic charge against
the same respondent where the EEOC finds that the issue raised by the new charge is
within the scope of the systemic charge and that a consolidation would promote
efficiency or strengthen the systemic case. 66 New charges that are not consolidated
with Systemic Program cases will 67 be handled under normal processing procedures,
except that the scope of the charge may not be extended at any stage of the administrative
process without the express approval of the Systemic Case supervisor, 68 and a copy of
any settlement, reasonable cause determination, decision, or right to sue notice issued
upon request or conciliation shall be forwarded to the supervisor. 69
Footnotes
Footnote 61. EEOC Compliance Manual 16.2(f).
Footnote 65. United States by Saxbe v Allegheny-Ludlum Industries, Inc. (1974, DC
Ala) 63 FRD 1, affd (CA5) 517 F2d 826, cert den 425 US 944, 48 L Ed 2d 187, 96 S Ct
1684.
1255 Initial interview with charging party

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A professional employee of the EEOC, called an Equal Opportunity Specialist (EOS),
will conduct an "intake interview" with a charging party. This interview begins with a
counseling session at which the EOS answers questions regarding the Commission's
operations and will explain the extent of the Commission's jurisdiction. 70

The EOS should get as much information as can be obtained about possible
discrimination under any statute, including possible violations affecting other persons. If
the subject matter of the complaint clearly relates to the jurisdiction of another federal,
state, or local agency, the EOS will refer the complaint to the proper agency. 71 If a
worksharing agreement 72 gives initial processing responsibility to an FEP agency, the
EOS informs the charging party that a copy of the charge will be sent to that agency. 73
Observation: Charging parties requesting bilingual intake personnel will be

accommodated whenever possible. 74
Footnotes
Footnote 72. 1245.
Footnote 73. EEOC Compliance Manual 2.4(h).
Footnote 74. EEOC Compliance Manual 2.4(k).
1256 Counseling the charging party

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After a valid charge has been filed, the interview process continues with additional
counseling, as appropriate. The charging party is given a copy of an Information Sheet
for Charging Parties and Complainants, which informs the charging party of his
responsibilities and private suit rights, and of EEOC procedures. 75
A charging party will be informed of the relief afforded by Title VII for the allegations in
the charge as well as the right to attorney representation. However, the EEOC instructs
its personnel to stress that whether any person is entitled to relief can only be determined
after an investigation, and that the EEOC cannot assure that relief will be obtained if a
violation is found, since only the courts can order relief. 76
Footnotes
1257 Assistance in preparing charges

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The EEOC office will assist a person in the filing of a charge when the person submits
information disclosing that he is entitled to file a charge. 77 Charging parties who file
in person will be provided with a copy of the charge at that time, while charges received
by telephone or mail will be acknowledged in writing. 78 If several individuals file
against the same respondent concerning the same basis and same issues, separate charges
may be drafted, even if the individuals visit the EEOC at the same time or sign the same
letter. Conversely, one charge filed on behalf of several aggrieved persons may be
placed on one charge form. 79
After a charge comes in by mail the EEOC will arrange for a phone or in-person
interview, 80 unless the allegations in the charge clearly fall outside the EEOC's
purview. In the latter situation, the agency will acknowledge the inquiry and refer the
charging party to the appropriate agency, if possible. 81
Footnotes
1258 Sufficiency of charge

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Go to Supplement
Title VII requires that a person filing a claim with the EEOC must include such
information as the Commission requires. 82 Although Commission rules provide that a
charge should be written, allege a violation of Title VII, be directed against a respondent
covered by Title VII, be timely filed, and be signed and verified, 83 the Commission
has given this language a liberal interpretation. Regulations indicate that the technical
requirements of a charge will not be rigidly applied. Thus, a charge is sufficient when the
Commission receives a written statement which is sufficiently precise to identify the
parties and to describe generally the allegedly illegal action or practice. 84
The Commission's liberal interpretation is supported by some court decisions on the
subject. 85 Courts have indicated that specificity is not required because the purpose of
the charge is only to initiate the EEOC investigation, not to state sufficient facts to make
out a prima facie case. 86 Thus, the mere omission of the employer's address on an
affidavit was only a technical defect that did not make the charge insufficient when the
parties were otherwise identified and the nature, date, and circumstances of the alleged
discrimination appeared on the document. 87
However, there are some minimum standards a charge must meet. A handbill which was
not addressed to the Commission, did not request the EEOC to take any action, and was
not interpreted by the EEOC as a charge, was not a proper charge. 88 Similarly, an
individual's submission of her EEOC intake questionnaire 222 days after her discharge
did not constitute a sufficient "charge" under Title VII to satisfy the 300-day filing
requirement, since it was neither signed under oath 89 nor designed to be. 90
Observation: Technical defects, such as failure to verify the charge, or additional

clarification of the allegations, may be cured by subsequent amendment. 91
Caution: There is a difference between the sufficiency of a charge which will trigger
EEOC investigative processes and a charge which will be considered sufficient by a
district court to give that court jurisdiction over a subsequent lawsuit which may
develop from the charge. 92
1258 ----Sufficiency of charge [SUPPLEMENT]
Practice Aids: The plaintiff's burden under the particularity requirement of Title VII,
44 Lab LJ 771 (1994).
Footnotes
Practice References Contents of charge; relationship to scope of subsequent action.
21 Am Jur Trials 1, Employment Discrimination Action Under Federal Civil Rights
Acts 80.
Footnote 84. 29 CFR 1601.12(b).
Footnote 85. Georgia Power Co. v EEOC (1969, CA5) 412 F2d 462, 1 BNA FEP Cas
787, 71 BNA LRRM 2614, 2 CCH EPD 100019, 60 CCH LC 9261; EEOC v Western
Pub. Co. (1974, CA8) 502 F2d 599, 8 BNA FEP Cas 629, 8 CCH EPD 9633.
Footnote 86. International Brotherhood of Electrical Workers v United States EEOC
9897, 58 CCH LC 9143, cert den 393 US 1021, 21 L Ed 2d 565, 89 S Ct 628, 1 BNA
FEP Cas 577, 70 BNA LRRM 2225, 1 CCH EPD 9947, 59 CCH LC 9190,
Graniteville Co. (Sibley Div.) v Equal Employment Opportunity Com. (1971, CA4) 438
F2d 32, 3 BNA FEP Cas EPD 8109; Sanchez v Standard Brands, Inc. (1970, CA5) 431
F2d 455, 2 BNA FEP Cas 788, 2 BNA FEP Cas 912, 2 CCH EPD 10252.
Footnote 87. Waiters v Robert Bosch Corp. (1982, CA4) 683 F2d 89, 29 BNA FEP Cas
401, 29 CCH EPD 32888.
Footnote 88. Moore v Sunbeam Corp. (1972, CA7) 459 F2d 811, 4 BNA FEP Cas 454, 4
BNA FEP Cas 1218, 79 BNA LRRM 2803, 81 BNA LRRM 2158, 4 CCH EPD 7722, 5
CCH EPD 8005, 67 CCH LC 12504.
Footnote 89. 1264.
Footnote 90. Proffit v Keycom Electronic Pub. (1985, ND Ill) 625 F Supp 400, 39 BNA
Footnote 91. 1265.
Footnote 92. For a discussion of how a charge may limit the subject matter jurisdiction of
a federal court, see 2173 et seq.
1259 --Sufficiency of Commissioner charges

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Courts have held that a Commissioner's charge is only the first step in administrative
processing, and need not be supported by factual allegations when it is filed. It only has
to satisfy the liberal pleading requirements of Title VII 93 and the applicable
regulations. 94
Such charges are sufficient if the Commissioner, as far as is possible, identifies the
aggrieved groups, the categories of positions from which they have been excluded, the
type of discrimination in issue and the method by which it occurred, and the period of
time the alleged violation has been practiced. 95 Thus, a Commissioner's charge that
alleged in general terms that an employer had engaged in racial discrimination in
violation of Title VII was sufficient to invoke discovery procedures despite the fact that
no particular facts on which the complaint was based had been alleged. 96
Similarly, a commissioner's charge which alleged that a respondent had discriminatorily
failed or refused to recruit or hire Negroes, American Indians, and Spanish-surnamed
Americans or to provide them with an equal opportunity for promotion, set forth facts
with sufficient specificity to satisfy the requirements of Title VII and to warrant
enforcement of an EEOC demand for access to evidence. 97
However, despite the liberal requirements of Shell Oil Company, 98 a Commissioner's

charge must still adequately name the proper respondent before it will be considered a
charge against that respondent. Where the EEOC failed to distinguish between two
subsidiaries with separate management and different addresses, a Commissioner's charge
against one of those subsidiaries did not automatically include the other, particularly
where the EEOC had been duly notified and given an opportunity to amend its charge. 99
Footnotes
Footnote 93. 1258.
Footnote 94. EEOC v Dean Witter Co. (1980, CA9) 643 F2d 1334, 23 BNA FEP Cas
115, 23 CCH EPD 31064; Valley Industrial Services, Inc. v EEOC (1983, ND Cal) 570
F Supp 902, 32 BNA FEP Cas 482, 32 CCH EPD 33877; EEOC v K-Mart Corp. (1982,
Footnote 95. EEOC v Shell Oil Co. (1984, US) 80 L Ed 2d 41, 104 S Ct 1621, 34 BNA
Footnote 96. Sparton Southwest, Inc. v EEOC (1971, CA10) 461 F2d 1055, 4 BNA FEP
Cas 29, 4 BNA FEP Cas 872, 4 CCH EPD 7575, 4 CCH EPD 7869.
Footnote 97. United States Steel Corp. v United States (1973, CA10) 477 F2d 925, 5
Footnote 98. EEOC v Shell Oil Co. (1984, US) 80 L Ed 2d 41, 104 S Ct 1621, 34 BNA
Footnote 99. EEOC v Bellemar Parts Industries, Inc. (1989, CA6) 865 F2d 780, 48 BNA
FEP Cas 1217, 48 CCH EPD 38625, clarified, in part, reh den (CA6) 868 F2d 199, 49
1260 Alleging Title VII violation

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Despite the requirement that charges allege a Title VII violation, 1 it is well-settled that
a charging party need not correctly identify the legal basis for his charge of
discrimination. Thus a charge which does not specifically mention any violation of law,
2 or a charge form in which the wrong box is checked in reference to the alleged basis of
discrimination, 3 is a technical defect which is not fatal to a complaint.
Practice guide: Technical defects, such as failure to verify the charge, or additional
clarification of the allegations, may be cured by subsequent amendment. 4
Footnotes
Footnote 2. Georgia Power Co. v EEOC (1969, CA5) 412 F2d 462, 1 BNA FEP Cas 787,
71 BNA LRRM 2614, 2 CCH EPD 10019, 60 CCH LC 9261.
Footnote 3. Sanchez v Standard Brands, Inc. (1970, CA5) 431 F2d 455, 2 BNA FEP Cas
Footnote 4. 1265.
1261 When unfair immigration-related employment practice charge has been

filed
View Entire Section
No charge may be filed with the EEOC with regard to an employment practice if an
unfair immigration-related employment practice charge with regard to that practice has
been filed with the Special Counsel for the Immigration and Naturalization Service based
on the same set of facts, unless that charge is dismissed as being outside the scope of the
Immigration Act. 5
Observation: Unfair immigration-related employment practices charges may be filed

with regard to national origin or citizenship discrimination. Thus, the only EEOC
charges that are barred are ones similarly alleging national origin discrimination. This
is basically a first-filed rule, since immigration charges may also not be filed if an
EEOC charge has been filed.
Footnotes
Footnote 5. 8 USCS 1324b(b)(2).
1262 Individual charges containing class allegations

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Whenever a charge alleges that discrimination results from a policy or practice that
potentially affects other persons, the EEOC will seek to elicit from the charging party all
information relevant to class discrimination. 6 However, the EEOC may use its
discretion in determining which issues it will fully investigate and which it will not. 7
Footnotes
1263 Charging respondent covered by Title VII

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The EEOC has no jurisdiction under Title VII over employers, employment agencies, or
unions which are not covered by Title VII. 8
Caution: The failure to name a possible respondent may preclude a court's

jurisdiction over that respondent if a lawsuit develops out of the charge. 9
Recommendation: A lawyer who becomes involved at or before the charging stage

should take care to see that all possible respondents are named in the charge. A lawyer
who becomes involved only after the charge has been filed should review the charge to
make sure it names all proper parties, and should endeavor to amend it if additional
respondents should be named.
Footnotes
Footnote 8. 42 USCS 2000e(a), (b), (c), 2000e-2, 2000e-5(a).
EEOC Compliance Manual 2.5(a)(4).
1264 Verification and signing

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A charge must be in writing and under oath or affirmation. 10 An initial failure to
verify a charge may be cured by a later amendment. 11 The purpose of the oath
requirement is to prevent the harassment of employers. 12
Despite the statutory verification requirement, courts have not always agreed on whether
an unverified statement, such as an EEOC intake questionaire or a letter from the
charging party, can ever be considered a "charge". Some courts have said held such a
statement not to be a charge, because such a statement is not under oath. 13 Others have
excused the omission of an affirmation or oath where the written statement has been
sufficiently precise to meet the EEOC's charge filing requirements 14 of identifying the
parties and describing the nature of the complaint. These courts have focused on the
amendment procedures available and the fact that the EEOC has considered the statement
sufficient to begin its administrative process. 15
In seeking to reconcile these opposing views, one court has posited that a private party's
filing is a "charge" when the EEOC considers it as one by treating it as such. Still,
compliance with the statutory oath requirement, although not part of the definition of a
charge, is necessary for it to be "perfected." 16 Thus, even under the more liberal rule
represented by Casavantes, 17 a formal charge must be filed 18 or a written statement,
such as an intake questionnaire, must be subsequently verified so they relate back to the
date of the initial filing and satisfy Title VII's filing requirements. 19
Footnotes
Footnote 11. 29 CFR 1601.12(b).
Footnote 13. First CircuitHamel v Prudential Ins. Co. (1986, DC Mass) 640 F Supp
103, 45 BNA FEP Cas 1891.
Seventh CircuitProffit v Keycom Electronic Pub. (1985, ND Ill) 625 F Supp 400, 39
Eleventh CircuitBuffington v General Time Corp. (1988, MD Ga) 677 F Supp 1136,
Footnote 14. 29 CFR 1602.12(b).
Footnote 15. Price v Southwestern Bell Tel. Co. (1982, CA5) 687 F2d 74, 29 BNA FEP
Cas 1584, 30 CCH EPD 33066; Casavantes v California State University (1984, CA9)
732 F2d 1441, 34 BNA FEP Cas 1336, 34 CCH EPD 34384; Peterson v Wichita (1989,
CA10) 888 F2d 1307, 51 BNA FEP Cas 525, 51 CCH EPD 39449, cert den 495 US
Footnote 16. EEOC v Calumet Photographic, Inc. (1988, ND Ill) 47 BNA FEP Cas 42.
Footnote 17. Casavantes v California State University (1984, CA9) 732 F2d 1441, 34
Footnote 18. Sanders v Culinary Workers Union Local No. 226 (1992, DC Nev) 783 F
Supp 531, 58 BNA FEP Cas 798, 140 BNA LRRM 2026, 58 CCH EPD 41448.
Footnote 19. Philbin v General Electric Capital Auto Lease, Inc. (1991, CA7) 929 F2d
1265 Amending a charge; relation back

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A charge may be amended to cure technical defects or omissions (including failure to
swear to the charge) or to clarify and amplify allegations made in the charge. The
amendment does not make the initial charge untimely, because the amendment relates
back to the date of the initial filing of the charge. 20
An important aspect of the provision for amendments is that since charges filed by lay
persons often only provide general notice of the matter being complained of, an amended
charge can be used to reframe and amplify the original charge under the EEOC's
authority to assist lay complainants in articulating their charges. 21
Footnotes
Footnote 20. 29 CFR 1601.12(b).
Footnote 21. Blue Bell Boots, Inc. v Equal Employment Opportunity Com. (1969, CA6)
418 F2d 355, 2 BNA FEP Cas 228, 2 CCH EPD 10115, 61 CCH LC 9351.
1266 Serving notice of charge on respondent

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When a charge has been filed with the EEOCeither originally or upon its return from a
state agency to which it has been deferredthe EEOC notifies the respondent that a
charge has been filed against it and serves a copy of the charge upon it. The EEOC must
notify a respondent named in a valid charge within ten days of the filing. 22
The ten-day period runs from the time the EEOC asserts jurisdiction over the charge,
which begins after the required deferral period to an FEP agency. 23
The notice must include the date, place, circumstances and identity of the person filing
the charge, and in applicable circumstances, the identity of the person or organization
who has filed the charge on behalf of another. 24 Where the charge has been filed on
behalf of another person, only the charging party will be identified in the notice, so as to
protect the confidentiality of the aggreived person. 25 Notice is accomplished by service
of a copy of the charge, where such service does not impede the law enforcement
functions of the EEOC. 26
The EEOC has also adopted a policy of sending additional copies of charges to national
and regional headquarters of employers and unions, at the time the charge is sent, upon a
written request to do so, if it would benefit charging parties, respondents, and the
government, through quicker and more efficient resolution of charges. 27
Footnotes
Footnote 22. 42 USCS 2000e-5(b), (e); 29 CFR 1601.14(a).
Footnote 23. EEOC v Western Metal Specialty, Inc., Div. of Western Industries (1976,
ED Wis) 422 F Supp 49, 13 BNA FEP Cas 1569, 13 CCH EPD 11393.
Footnote 24. 29 CFR 1601.14(a).
Footnote 25. 49 Fed. Reg. 13873 (4/9/84).
Footnote 26. 29 CFR 1601.14(a).
1267 --When EEOC will not serve respondent with the charge itself
View Entire Section
The EEOC will not serve the respondent with a copy of the charge if to do so would
adversely affect EEOC's enforcement purposes. 28 Such circumstances arise where the
charge:
names more than one respondent, unless the respondents are charged jointly; 29
is made on behalf of an aggrieved person who wishes to remain anonymous and the
charge contains identifying details; 30
contains information on its face that the charging party expresses concern about; 31
contains allegations that are vague, contradictory, incoherent, or otherwise of such a
nature as not to facilitate resolution; 32
has not been drafted on an EEOC charge form. 33
Footnotes
(5). Withdrawal and Dismissal of Charges [1268-1270]
1268 Withdrawal of charge by "aggrieved" person

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A charge filed by or on behalf of an "aggrieved" person may be withdrawn only by the
aggrieved person with the EEOC's consent. 34 This requirement is based on the view
that Title VII is a remedial statute designed to effectuate a broad social purpose, and that
a charging party is cast in the role of a "private attorney general" whose action in filing a
charge may affect an entire class of people. 35
A request for withdrawal must be in writing either on EEOC Form 154 or in a
communication containing the major elements of that form. Form 154 reminds the
charging party that his right to file a complaint is protected by law and that it is unlawful
for any person covered by Title VII to threaten, intimidate, or harass a charging party
because the charging party has filed the complaint. If the charging party still wishes to go
ahead with the withdrawal, the form requests the reason for withdrawal and a signature
acknowledging that the charging party has not been coerced into requesting the
withdrawal. The EEOC's purpose in following this procedure is to obtain assurance that
withdrawal was not requested as a result of coercion or retaliation. 36
The Commission has delegated its authority to grant consent to a request for withdrawal
of a charge to District Directors, Area Directors, and the Directors of the Offices of Field
Services and Systemic Programs, or their designees. 37 Even if a withdrawal is
approved, the EEOC may still investigate another charge containing the same or similar
allegations and may initiate a Commissioner charge 38 either based on the allegations in
the withdrawn charge or based on other considerations. 39
Footnotes
Footnote 34. 29 CFR 1601.10.

Footnote 35. Allstate Ins. Co. v EEOC (1972, DC NY) 4 BNA FEP Cas 806, 4 CCH EPD
7800.
Forms: RequestFor withdrawal of charge of discrimination (EEOC Form 154 (8-87))
[29 CFR 1601.10]. 12 Federal Procedural Forms, L Ed, Job Discrimination 45:39.
Footnote 37. 29 CFR 1601.10.
Footnote 38. 1259.
1269 Withdrawal of Commissioner charge

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A Commissioner who files a charge may withdraw the charge with the consent of the
Commission. 40 The Commission may withdraw any charge filed by a Commissioner
who is no longer holding office when it determines that the purposes of Title VII are no
longer served by processing the charge. 41
Commissioner charges may not be withdrawn after a determination of reasonable cause
42 has been made. 43
A charge filed by a commissioner made on behalf of a person claiming to be aggrieved
may not be withdrawn unless the person aggrieved submits a written request for
withdrawal to the Commission. 44
Footnotes
Footnote 40. 29 CFR 1601.11(b).
Footnote 41. 29 CFR 1601.11(b).
Footnote 42. 1350.
Footnote 43. 29 CFR 1601.11(b).
Footnote 44. 29 CFR 1601.11(b).
1270 Dismissal of charges

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The EEOC may dismiss a charge for several reasons, many of which do not address the
merits of the allegations under Title VII. Some of the reasons why a charge will be
dismissed include:
the complaint was not filed before the expiration of the time limitations; 45
the charging party lacks standing to file a Title VII claim because the alleged unlawful
employment practice does not affect him or any person on whose behalf he has filed; 46
the allegations in the charge do not state a violation of Title VII or are made against an
employer who is not covered under Title VII (because it does not have the requisite
number of employees, or for some other reason); 47
the Commission has been unable to locate the charging party after a reasonable effort,
and after notifying him of his responsibility to keep the Commission informed of his
whereabouts; 48
the charging party has failed or refused to cooperate with the Commission's
investigation of the charge, such as when he does not supply requested information or
appear at a fact-finding conference; 49
the charging party fails to accept a settlement offer from the respondent which provides
him full relief for the harm caused by the discriminatory action; 50
a prior state court decision was entitled to preclusive effect on the Title VII claim; 51
the EEOC had already accepted as final a state agency determination of a prior charge
on the same subject. 52
Footnotes
(6). Timeliness of Filing [1271-1280]
1271 Generally
View Entire Section
Go to Supplement
The timely filing of charges with the EEOC is a jurisdictional requirement that must be
met for the EEOC to have the power to investigate and conciliate. Thus, if the
allegations of a charge on its face, or as amplified by the statements of a charging party,
disclose that a charge is not timely filed, the EEOC may dismiss the charge without
further action. 53
Under Title VII, there are three distinct time limitations for the filing of EEOC charges
that apply under different circumstances. A charge must be filed within:
(1) 180 days, if the charge arises in a non-deferral jurisdiction; 54 or, under certain
circumstances, if the charge arises in a a deferral jurisdiction; 55
(2) 300 days, if the charge arises in a deferral jurisdiction; 56
(3) 30 days after the claimant receives notice from the state or local deferral agency that
the agency has terminated its proceedings, if the notice is received before the expiration
of the above 300-day period. 57
The above charge filing time limits may be suspended for various reasons. 58
Furthermore, in instances where the discriminatory practice is "continuing," the time
period may not begin to run at all when the discriminatory act first occurs. 59
Case authorities:
Administrative deadline for filing charge with EEOC is not jurisdictional limitation, but
rather operates in nature of statute of limitations and is subject to equitable tolling and
estoppel. Anderson v Unisys Corp. (1995, CA8 Minn) 47 F3d 302, 67 BNA FEP Cas
317, reh den (1995, CA8) 1995 US App LEXIS 9062.
Footnotes
Footnote 53. 29 CFR 1601.18(a).

Footnote 54. 1272.
Footnote 55. 1273.
Footnote 56. 1274.
Footnote 57. 1279.
The relationship between tolling of the charge filing periods under Title VII and the filing
of a class action is discussed in 1328 et seq.
1272 In non-deferral jurisdictions; 180-day filing period

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When the discrimination occurs in a non-deferral jurisdiction, the charge must be filed
with the EEOC within 180 days after the alleged discrimination occurs. 60
Footnotes
1273 --Applicability in deferral jurisdictions; state agency's lack of subject matter

jurisdiction
View Entire Section
Go to Supplement
A state or municipal jurisdiction whose deferral agency lacks subject matter jurisdiction
over a particular charge is equivalent to a jurisdiction that does not have a deferral
agency. 61 Consequently, a charge over which the state or local agency does not have
subject matter jurisdiction must be filed with the EEOC within 180 days after the alleged
unlawful act occurs. 62 For example, where the respondent was a federal
instrumentality, over which the state FEP agency did not have jurisdiction, a Title VII
charge filed with the EEOC over 180 days after the allegedly unlawful act occurred was
untimely. 63
The 180-day charging period also applies in deferral jurisdictions where the claimant
does not file a timely charge with the state agency 64 or does not file any charge with
the state agency. 65
Furthermore, where a worksharing agreement 66 between the state FEP agency and the
EEOC waived state processing of certain charges, 67 the 180-day time period for filing
with the EEOC applied to those charges. Although the state was a deferral state, the state
agency was not a deferral agency with respect to those charges. 68
1273 --Applicability in deferral jurisdictions; state agency's lack of subject matter
jurisdiction [SUPPLEMENT]
Case authorities:
Although Puerto Rico is deferral jurisdiction for purposes of Title VII, where
instrumentality of Puerto Rico government is charged with violating Title VII, claimant
must act within nondeferral jurisdiction time limits (180 days, rather than 300 days).
Silva v Universidad de Puerto Rico (1993, DC Puerto Rico) 817 F Supp 1000, 61 BNA
FEP Cas 996, reconsideration den, motion gr, motion den (DC Puerto Rico) 1993 US
Dist LEXIS 6247.
Footnotes
Footnote 61. 1272.
Footnote 62. 29 CFR 1601.13(a)(2).
Footnote 63. Osei-Bonsu v Federal Home Loan Bank (1989, SD NY) 726 F Supp 95, 53
Footnote 64. 1275.
Footnote 65. 1276.
Footnote 66. 1245.
Footnote 67. 1244.
Footnote 68. EEOC v Electronic Data Systems Corp. (1986, ND Cal) 42 BNA FEP Cas
743.
1274 Extended 300-day filing period in deferral jurisdictions

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In cases of alleged discrimination occurring in deferral jurisdictions, 69 an individual
who has initially instituted proceedings with a state or local agency with proper
jurisdiction over the discrimination in question must file a charge with the EEOC within
300 days after the alleged unlawful act occurred, or within 30 days of receiving notice
that the deferral agency has terminated proceedings, whichever is earlier. 70
This 300-day period is, of course, substantially longer than the filing period in
nondeferral jurisdictions. 71 The extended charge filing period is intended to increase
the role of states and localities in resolving discrimination charges, and to prevent a
claimant's forfeiture of federal rights while participating in the state or local deferral
proceeding. Thus, the availability of the 300-day extended time period is not dependent
on the charge's having been filed with the appropriate state agency within 180 days of the
discriminatory act involved. 72 Also, the 300-day period applies even when the state
or local charge is not timely filed under state law. 73 Furthermore, the 60-day deferral
period 74 may have a bearing on meeting the 300-day period. 75
Footnotes
Footnote 71. 1272.
Footnote 72. Mohasco Corp. v Silver (1980) 447 US 807, 65 L Ed 2d 532, 100 S Ct
Footnote 73. 1275.
Footnote 74. 1243.
Footnote 75. 1277.
1275 --Effect of untimeliness of state charge

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A timely state charge is not a condition precedent to applicability of Title VII's 300-day
charge filing period. The Supreme Court adopted the reasoning it used under analogous
ADEA circumstances 76 since the ADEA's filing provisions were patterned after those
of Title VII. Title VII, like the ADEA, contains no express references to timeliness under
state law. In addition, the policy considerations that weigh against imposing such a
hurdle on the federal ADEA scheme are identical in the Title VII context. Namely, Title
VII is also a remedial scheme in which laypersons, rather than lawyers, are expected to
initiate the process. Importing state time limitations into that scheme would not only
confuse lay complainants, but would also embroil the EEOC in complicated jurisdictional
issues of state law for which it has neither the time nor the expertise. In contrast, the
Court's broadly worded statement in Mohasco, 77 that a complainant can protect his
federal rights if the charge is filed within 240 days of the alleged discriminatory practice,
establishes a rule that is both easily understood by complainants, and easily administered
by the EEOC. 78
Thus, when the intent of a worksharing agreement was that a state
agency would waive jurisdiction over untimely charges filed with the state agency, a
plaintiff's charge was timely filed with the EEOC 299 days after the alleged wrongful act,
although filing on that day was outside the state act's limitations period and the state
agency erroneously asserted jurisdiction over the charge. 79
Footnotes
Footnote 78. EEOC v Commercial Office Products Co. (1988) 486 US 107, 100 L Ed 2d
Footnote 79. Marlowe v Bottarelli (1991, CA7) 938 F2d 807, 56 BNA FEP Cas 1012, 57
CCH EPD 40913.
1276 --Effect of failure to file state charge

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The purpose of Title VII's 300-day extended filing period 80 is to give state and local
agencies the chance to resolve Title VII claims without federal intervention. 81
The
extended filing period is available to a claimant who has initially instituted proceedings
with the deferral agency. 82 Thus, it has been held that a Title VII claimant who fails to
commence deferral agency proceedings is not entitled to the 300-day charge filing period
and must file the charge within 180 days after the alleged unlawful event. 83 A Title
VII claimant cannot ignore the Act's deferral agency filing requirement and obtain the
benefit of the extended charge filing period merely because the claimant works in a
deferral state. 84
However, there is a split of authority as to whether a transfer by the EEOC amounts to an
appropriate state filing if it is done pursuant to a worksharing agreement between the
state and EEOC. One line of reasoning has it that such a transfer does not constitute a
state filing, because in this situation, the transfer is merely a convenience since the state
has agreed temporarily to waive jurisdiction so that the EEOC can process the charge in a
timely manner. The EEOC's transfer is not sufficient to invoke the extended time period
because there is no intention that the state agency actually process before the EEOC,
which is one of the purposes behind the extended filing period. The 180-day period
therefore applies. 85
However, the Fifth Circuit has held that an appropriate state filing does result where,
pursuant to a worksharing agreement, a charge initially filed with the EEOC is routinely
transmitted to the deferral agency. 86
Observation: As between Dixon and Urrutia (footnote 83), the latter is probably the
better view. Given that state proceedings can be "terminated" via a worksharing
agreement, even when the state retains the right to reopen proceedings at a later date,
87 it is logical to expect that state proceedings could also be "initially instituted" by
such a mechanism. Thus, the state had the opportunity to process the charge but
voluntarily chose not to. Also, a proceeding cannot logically be "terminated" if it was
never "instituted."
Footnotes
Footnote 80. 1274.
Footnote 83. Kocian v Getty Refining & Marketing Co. (1983, CA3) 707 F2d 748, 31
164, 32 BNA FEP Cas 1672, 32 CCH EPD 33829; Dickerson v City Bank & Trust Co.
(1983, DC Kan) 575 F Supp 872, 34 BNA FEP Cas 1662.
Footnote 84. Kocian v Getty Refining & Marketing Co. (1983, CA3) 707 F2d 748, 31
Footnote 85. Dixon v Westinghouse Electric Corp. (1985, DC Md) 615 F Supp 538, 38
36082.
Footnote 86. Urrutia v Valero Energy Corp. (1988, CA5) 841 F2d 123, 46 BNA FEP Cas
Footnote 87. 1244.
1277 Inclusion of deferral period within 300-day filing period

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The 60-day or 120-day Title VII deferral period 88 is includable in the 300-day charge
filing period. 89 Thus, a charge in a deferral jurisdiction should be received by the
EEOC within 240 days after the occurrence of the alleged discrimination (180 days
during the first effective year of the jurisdiction's applicable nondiscrimination law). If
the Title VII charge is received by the EEOC within either of those applicable time
periods, there is sufficient time remaining for the EEOC to file the charge within the
300-day period, once the deferral period lapses or the state or local proceedings are
terminated at an earlier date.
Also, the right to file an EEOC charge of an individual who files his charge after the
240th day following the occurrence of the discriminatory act will be preserved, if the
state or local agency happens to conclude its consideration of the charge prior to the
300th day. 90
Illustration: When the EEOC referred a complainant's charge to the state deferral
agency on the 231st day of the charge filing period, the EEOC acted on behalf of the
complainant in initially instituting state proceedings in compliance with Title VII.
When the state agency referred the charge back to the EEOC well within the 300-day
period, the charge was timely filed with the EEOC. 91
Footnotes
1243.
1274.
Footnote 91. Jones v Airco Carbide Chemical Co. (1982, CA6) 691 F2d 1200, 30 BNA
1278 --Effect of work-sharing agreement

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Filing after the 240th day has a less adverse effect if the charge is deferred to a state or
local agency that has entered into a work-sharing agreement with the EEOC. 92 Under
a work-sharing agreement, the state or local agency agrees to waive its jurisdiction.
Consequently, the deferral period is markedly shortened. 93
Recommendation: If the charging party has filed a Title VII charge 240 or more
days after the alleged discriminatory event and the deferral agency has not entered into
a work-sharing agreement waiving its initial processing right, the charging party
should seek a complete waiver of processing from the deferral agency where it is likely
that processing will not be completed prior to the close of the 300-day charge filing
period.
Footnotes
Footnote 92. 1245.
Footnote 93. 1244.
1279 Alternative 30-day filing period in deferral jurisdictions

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A charge must be filed within 30 days after the charging party receives notice from a
state or local deferral agency that the agency has terminated its proceedings, if the notice
is received before the expiration of the normal 300-day filing period. 94
The 300-day charge filing period applies instead of the 30-day period where the claimant
does not receive notice that the state or local agency proceeding has terminated. 95
However, a Title VII charge was timely filed where it was filed more than 30 days after
the claimant received notice that the local agency proceedings had terminated, but within
180 days of the alleged discriminatory event. The 30/300-day limitations period was an
alternative to the general 180-day charge filing period, 96 and a charge that could be
filed within 180 days of the discriminatory event was not stale. 97
Footnotes
See 1274 as to extended See 300-day filing period in deferral jurisdictions.
Footnote 95. Saulsbury v Wismer & Becker, Inc. (1980, CA9) 644 F2d 1251, 25 BNA
FEP Cas 1285, 26 CCH EPD 31839.
Footnote 96. 1272.
Footnote 97. Rucker v Western Electric Co. (1981, MD Fla) 521 F Supp 986, 26 BNA
FEP Cas 1262.
1280 Computing the expiration date

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To determine the day on which the limitation period ends for filing a charge, the day on
which the alleged discriminatory act occurred should be omitted but the day on which a
filing is made should be included. 98
Footnotes
Footnote 98. Prophet v Armco Steel, Inc. (1978, CA5) 575 F2d 579, 17 BNA FEP Cas
1160, 17 CCH EPD 8425.
(7). When Charge is Deemed Filed [1281-1286]
1281 In nondeferral jurisdictions

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In nondeferral jurisdictions, charges are deemed filed with the EEOC upon their receipt
by the Commission. 99
Footnotes
Footnote 99. Johnson v Host Enterprise, Inc. (1979, ED Pa) 470 F Supp 381, 19 BNA
FEP Cas 1315; 29 CFR 1601.13.
1282 In deferral jurisdictions; charge initially presented to EEOC

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In a deferral state, the critical date for determining whether or not a charge is timely filed
is the date the state action is commenced. Where the charging party first files with the
EEOC, a state action is deemed commenced when the EEOC forwards the complaint to
the state agency. 1 In deferral jurisdictions, 2 a Title VII charge is not deemed filed
with the EEOC when it is first presented to the Commission prior to deferral, because
first filing a charge with a state or local deferral FEP agency is a statutory predicate to the
federal filing. 3 Instead, the EEOC holds the charge in "suspended animation" during
the deferral period, 4 and it is deemed filed with the EEOC 60 days (or, where
required, 120 days) after the EEOC defers to the FEP agency, 5 unless the FEP agency
terminates its proceedings at an earlier time or waives its right to exclusive jurisdiction. 6
In those two instances, the charge will be deemed filed with the EEOC as of the date of
termination or waiver by the FEP agency. 7
The EEOC's deferral of the charge to the state automatically constitutes the state filing. 8
Furthermore, when a state FEP agency, through a worksharing agreement with the
EEOC, waives its exclusive 60-day period for initial processing of a discrimination
charge, the agency's proceedings are "terminated" and EEOC may deem the charge filed
and begin processing it immediately, even when the state agency reserves the right to
reactivate proceedings after EEOC's resolution of the charge. 9
Footnotes
Footnote 1. Sharpe v American Express Co. (1988, SD NY) 689 F Supp 294, 47 BNA
Footnote 5. As to "FEP agencies", see 1246.
Footnote 6. 29 CFR 1601.13(a)(4).
Footnote 7. 29 CFR 1601.13(a)(4).
Footnote 8. Love v Pullman Co. (1972) 404 US 522, 30 L Ed 2d 679, 92 S Ct 616, 4
Footnote 9. EEOC v Commercial Office Products Co. (1988, US) 100 L Ed 2d 96, 108
1283 --Charge initially presented to state agency

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If a Title VII charge is initially filed with the deferral agency before being presented to
the EEOC, and the claimant requests that the charge be presented to the Commission, the
charge is deemed filed with the Commission when the 60 (or 120) day deferral period
ends, the state or local proceeding sooner terminates, or the deferral agency waives its
jurisdiction, whichever occurs first. The charge is timely filed if the filing is made within
300 days of the alleged discriminatory act. 10 A charge filed with a state agency,
marked by the claimant "I also want this charge filed with the EEOC", and forwarded by
the state agency to the EEOC before the end of the 60-day period, will be deemed filed
with the EEOC at the end of the 60-day period. 11
If the charging party has not requested presentation of the charge to the EEOC and the
state or local agency's proceedings have not yet terminated, the claimant must present the
charge to the EEOC within 300 days after the alleged discriminatory act occurred. The
charge is deemed filed with the Commission upon the expiration of 60 (or 120) days,
earlier termination of the state or local proceeding, or the state or local agency's waiver of
its exclusive processing right, whichever occurs first. The filing is timely if made within
300 days of the alleged discriminatory act. 12 However, a deferral agency can enter
into a contractual agreement (a cross-filing agreement) with the EEOC whereby the
deferral agency files the charge with the EEOC. 13
If, however, the state or local agency has refused to accept the charge and the charge is
subsequently submitted to the EEOC, the Commission will treat the charge as one
presented initially to it. 14 The EEOC will hold the charge in suspended animation
where it is first filed with the state or local agency and presented to the EEOC prior to the
close of the 60-day deferral period. 15
Footnotes
Footnote 10. 29 CFR 1601.13(b)(1).
Footnote 11. Allen v Schwab Rehabilitation Hospital (1981, ND Ill) 509 F Supp 151, 25
Footnote 13. Williams v Washington Metropolitan Area Transit Authority (1983) 232
App DC 251, 721 F2d 1412, 33 BNA FEP Cas 581, 32 CCH EPD 33944.
Footnote 14. 29 CFR 1601.13(b)(2)(i).
Footnote 15. Hall v Board of County Comrs. (1981, DC Md) 509 F Supp 841, 25 BNA
FEP Cas 567, 26 CCH EPD 31846; Allen v Schwab Rehabilitation Hospital (1981, ND
Ill) 509 F Supp 151, 25 BNA FEP Cas 301, 26 CCH EPD 32002.
1284 Amended charges; relation back

View Entire Section

A charge may be amended. 16 Amendments alleging additional acts that constitute
unlawful employment practices directly related to or growing out of the subject matter of
the original charge "relate back" to the original filing date, that is, the date the charge was
first received. 17 Thus, for time-limit purposes, an amendment is treated as if it were
filed at the time the charge was filed. 18
Courts have taken a liberal approach regarding amendments to Title VII charges and
permitted the later allegations to relate back to the original filing date when:
the amendment merely verified an unsworn charge; 19
another type of discrimination was added, concerning the action originally complained
about; 20
a second occurrence of the same discriminatory conduct was alleged. 21
Courts are more strict with regard to allowing relation back of amendments that add
allegations of different conduct to the original charge. For example, it was permissible to
amend a charge claiming pay and promotion discrimination with allegations concerning
discriminatory assignment and training charges, 22 but when charges originally specified
discharge as the basis of conduct being challenged, a plaintiff could not later amend the
charge by adding training and promotion discrimination claims, 23 or promotion, pay,
training and working condition claims, 24 because the later allegations were not "like or
related to" the original allegation of discrimination.
Furthermore, an amended charge did not relate back to the original charge and was
therefore untimely where the amendment added an independent substantive charge and
facts to support that claim. 25 Moreover, an amendment that would have added an
ADEA claim after the time period for filing an ADEA claim had passed, 26 although the
amendment arose from the same subject matter as the original Title VII charge, did not
relate back to it, since Title VII and the ADEA have fundamentally distinct statutory
schemes. 27
Observation: Because the EEOC concentrates on specifying the details of charges as

much as possible, to facilitate moving individual charges of discrimination through the
Rapid Processing System, 28 a charging party must be careful to include all
allegations of discrimination at the earliest opportunity, or risk not being able to later
amend those claims to include additional allegations that would relate back to the
original charge.
Recommendation: Counsel for the charging party should thoroughly explore all
bases for the Title VII claim with the client, so that they are all included in a complaint
before the expiration of the time limitation for filing.
Footnotes
Footnote 16. 1265.
Footnote 17. 29 CFR 1601.12(b).

FEP Cas 656, 70 BNA LRRM 2843, 1 CCH EPD 9970, 59 CCH LC 9213; Georgia
Power Co. v EEOC (1969, CA5) 412 F2d 462, 1 BNA FEP Cas 787, 71 BNA LRRM
2614, 2 CCH EPD 10019, 60 CCH LC 9261.
Footnote 19. Blue Bell Boots, Inc. v EEOC (1969 CA6) 418 F2d 355, 2 BNA FEP Cas
228, 2 CCH EPD 10115, 61 CCH LC 9351.
Footnote 20. Hicks v ABT Associates, Inc. (1978, CA3) 572 F2d 960, 16 BNA FEP Cas
802, 15 CCH EPD 8061; Sanchez v Standard Brands, Inc. (1970, CA5) 431 F2d 455, 2
Footnote 21. Ramirez v National Distillers & Chemical Corp. (1978, CA9) 586 F2d
Footnote 22. Satz v ITT Financial Corp. (1980, CA8) 619 F2d 738, 22 BNA FEP Cas
929, 22 CCH EPD 30843.
Footnote 23. Pickney v American Dist. Tel. Co. (1983, ED Ark) 568 F Supp 687, 32
BNA FEP Cas 1232.
Footnote 24. Paulino v Miller (1983, ED Ark) 32 BNA FEP Cas 1230.
Footnote 25. Hornsby v Conoco, Inc. (1985, CA5) 777 F2d 243, 39 BNA FEP Cas 766,
38 CCH EPD 35747.
Footnote 27. Wilson v Communications Workers of America (1991, DC Dist Col) 767 F
Supp 304; Pejic v Hughes Helicopters, Inc. (1988, CA9) 840 F2d 667, 46 BNA FEP Cas
318, 45 CCH EPD 37824.
Footnote 28. 1251.
1285 Informal charges

View Entire Section
Any notification of charges may be sufficient to satisfy Title VII time requirements. A
letter from a putative charging party to the EEOC that charged that the writer had been
fired because of his race has been held to be a "filing" of a charge sufficient to meet the
timeliness requirements. 29 The filing of an intake questionnaire has been held to be a
"filing" of a charge sufficient to meet the timeliness requirements 30 and, conversely,
has been held not to constitute a "charge" of discrimination. 31
Footnotes
Footnote 29. Moss v Lane Co. (1970 WD Va) 50 FRD 122, 2 BNA FEP Cas 918, 2 CCH
EPD 10309, affd in part and remanded in part (CA4 Va) 471 F2d 853, 5 BNA FEP Cas
376, 5 CCH EPD 8401.
Footnote 30. Casavantes v California State University (1984, CA9) 732 F2d 1441, 34
Footnote 31. Buffington v General Time Corp. (1988, MD Ga) 677 F Supp 1186, 45
BNA FEP Cas 1521.
1286 Charges filed with another federal agency

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The filing of a complaint with another federal agency may be deemed a filing for Title
VII purposes. For example, this occurs when a charging party files a charge with the
OFCCP and then makes a formal charge with the EEOC based on the same allegations.
The EEOC considers the charge filed as of the earlier date, if both departments have
concurrent jurisdiction over the respondent involved in the subject matter of the charge.
32 Moreover, where, because of "bureaucratic ineptitude," the EEOC did not receive a
charge within the statutory time limits, but the OFCCP did receive the charge within a
month after the occurrence of the alleged unlawful employment practice, the charge was
deemed to have been timely filed with the EEOC. To hold otherwise would "ignore the
plight of a layperson attempting to weave his or her way through a maze of bureaucratic
agencies and acronyms." 33
Footnotes
Footnote 33. EEOC v Delaware Trust Co. (1976, DC Del) 416 F Supp 1040, 12 BNA
FEP Cas 1770.
(8). Limitations; When Filing Period Begins [1287-1316]
(a). In General [1287-1301]
(i). General Principles [1287-1293]
1287 Discriminatory act as trigger

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Under Title VII, the occurrence of an alleged unlawful act triggers the start of the
administrative charge filing period. 34
The statutory provision is easy to state but frequently difficult to apply. When the
discriminatory act occurs has been the subject of much controversy in the courts. In
determining the answer to this question, courts look at the particular facts of the case and
apply a case-by-case approach. There is no single standard or mechanical formula that
establishes a firm point that courts and litigants can apply to determine the date on which
the alleged discriminatory act occurred. 35
The Supreme Court has rejected the notion
that there is a "bright line" that marks the start of the claim filing period. 36
The Ricks decision 37 is a seminal case in this area. In that case, the court established
two factors for determining when the Title VII charge filing period begins to run:
(1) The precise nature of the unlawful employment practice alleged by the employee; 38
and
(2) when the injured party received notice that the claimed discriminatory act occurred.
39
In amending Title VII to expand the time within which a seniority system may be
challenged in an administrative charge, 40 the Civil Rights Act of 1991 overruled the
Supreme Court's holding that the occurrence of the discriminatory act does not have to
have inevitable consequences in order for the limitations period to begin running. In that
case, an allegedly discriminatory change in the manner in which a collective bargaining
agreement calculated job seniority was the discriminatory event that triggered the time
limitations period, even if the affected employees never suffered any further future harm,
such as a layoff, resulting from that change. 41
Although Ricks was a college tenure case, 42 the decision has frequently been applied to
other personnel matters, such as denial of promotions. 43
Footnotes
Footnote 35. Aronsen v Crown Zellerbach (1981, CA9) 662 F2d 584, 27 BNA FEP Cas
Footnote 36. Delaware State College v Ricks (1980) 449 US 250, 66 L Ed 2d 431, 101
Footnote 38. 1288.
Footnote 39. 1289.
Footnote 40. 1312.
Footnote 41. Lorance v AT&T Technologies, Inc. (1989) 490 US 900, 104 L Ed 2d 961,
For an application of Lorance to an ADEA challenge to an early retirement program, see
1391 et seq.
Footnote 42. See 1299 for the factual circumstances of the Ricks case.
Footnote 43. Golletti v Arco/Polymers, Inc. (1984, WD Pa) 35 BNA FEP Cas 1325.
Generally, as to promotion cases, see 1296.
1288 Nature of discriminatory act alleged

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The discriminatory acts that the victim of alleged unlawful discrimination pleads as the
basis for relief are a key factor in determining when the charge filing period begins to
run. In the Ricks case, 44 the Supreme Court took issue with the plaintiff's attempt to
claim unlawful discharge where almost all of the factual allegations dealt with his earlier
denial of tenure and were unrelated to discriminatory discharge. 45
Footnotes
For a general discussion of the Ricks case, see 1287.
1289 Employee's notice of discriminatory act

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Title VII's charge filing period starts to run when the employee receives notice from the
employer that the personnel decision that the employee claims to be discriminatory has
been made. 46
The question frequently arises as to what sort of notice is sufficient under Ricks. Express
written notice from the employer is not required. 47 However, the notice must embody
a final expression of the employer's decision and cannot be tentative or equivocal. A
termination notice did not express the employer's final decision where it stated that the
employee would be discharged on a certain date unless another position were found for
him before that date, and that the company would make any reasonable effort to place
him in another position before the termination date. 48 It has also been held that an oral
"unofficial" notice of impending discharge, given to ensure the employees a chance to
seek other employment, was insufficient to start the limitations period. 49 On the other
hand, in Ricks, a notice reflected the employer's final decision where it stated that it was
the employer's "official decision." Furthermore, the finality of the employer's decision
was not altered by its express willingness to entertain grievance proceedings concerning
the decision. 50
In other cases, the finality of the decision was held not affected by:
the employee's requests that the employer "reserve" its decision and settlement
discussions that occurred after the employee filed charges with the EEOC; 51
the fact that the employee was not discharged after receiving firm and final notice of the
employer's decision to terminate him; 52
the employer's ambiguous suggestions, made after the employee had received official
notice of termination, that the employee might be transferred instead of discharged, if
mutually satisfactory employment could be found. 53
Footnotes
Footnote 48. Verschuuren v Equitable Life Assur. Soc. (1983, SD NY) 554 F Supp 1188,
Footnote 49. Leite v Kennecott Copper Corp. (1983, DC Mass) 558 F Supp 1170, 31
FEP Cas 1520.
Footnote 51. Pfister v Allied Corp. (1982, SD NY) 539 F Supp 224, 30 BNA FEP Cas
838.
Footnote 52. Gallagher v American Sterilizer Co. (1982, WD Pa) 548 F Supp 643, 31
BNA FEP Cas 344.
Footnote 53. Zebedeo v Martin E. Segal Co. (1984, DC Conn) 582 F Supp 1394.
1290 Employee's imputed knowledge of discriminatory act

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Go to Supplement
A number of courts have apparently gone beyond Ricks 54 to hold that either actual or
imputable knowledge of the alleged unlawful employment practice will trigger the Title
VII charge filing requirement. Some courts have said that the limitation period begins
when the claimant knows or reasonably should know that the discriminatory act has
occurred. 55 Other courts have found that the filing period commences when facts that
support the charge are apparent or should be apparent to a person with a reasonably
prudent regard for his rights who is similarly situated to the complainant. 56
Some
courts have analyzed the imputed knowledge approach in terms of tolling principles and
have ruled that the limitations period is tolled until the plaintiff discovers the
discrimination. 57
The means of determining imputed knowledge is whether there have been objective
manifestations by the employer that engender the employee's subjective knowledge of the
discriminatory act. The types of such objective manifestations are unlimited. 58
Illustration: A notice to an employee that he is terminated immediately constitutes

an obvious objective manifestation of the employer's intent, and the fact that the
employee is kept on the payroll after that date to collect vacation benefits or severance
pay does not mean that he is terminated only when actually separated from the payroll.
The employee knew or should have known that he was terminated on the date of the
notice. 59
Observation: The imputed knowledge standard appears to have a broader

application than the one announced in Ricks. It permits a court to determine when the
charge filing period begins in the absence of express notice from the employer
concerning the personnel decision of which the employee complains. However, the two
theories are not necessarily inconsistent. Although Ricks did not actually use "imputed
knowledge" language, the decision can be read as applying an imputed knowledge

approach. 60
Some courts have blended the Ricks notice and imputed knowledge standards. Thus, it
has been said that Title VII's charge filing period began when the claimant had notice of
termination from employment; it was at that point that the claimant should reasonably
have known that she had in fact been discharged and she had reason to believe that the
discharge was discriminatory. 61
1290 ----Employee's imputed knowledge of discriminatory act [SUPPLEMENT]
Case authorities:
Conflicting reasons for termination not only do not excuse timely EEOC filing but
actually should alert employee to probable discrimination; thus, plaintiff was not entitled
to equitable tolling based on fact that she received conflicting reasons for her termination,
or that she did not know gender of her replacement until more than four months after her
termination. Streadwick v Hygenic Corp. (1993, ND Ill) 61 BNA FEP Cas 933.
Footnotes
Footnote 54. For a general discussion of the Ricks case, see 1287.
Footnote 55. McWilliams v Escambia County School Bd. (1981, CA5) 658 F2d 326, 27
Footnote 56. Reeb v Economic Opportunity Atlanta, Inc. (1975, CA5) 516 F2d 924, 11
BNA FEP Cas 235, 10 CCH EPD 10358, on remand (ND Ga) 15 BNA FEP Cas 792,
affd without op (CA5) 565 F2d 1213, 17 BNA FEP Cas 673, cert den 435 US 1010, 56
L Ed 2d 393, 98 S Ct 1884, 17 BNA FEP Cas 699; Wolfolk v Rivera (1984, CA7) 729
Footnote 57. Allen v Bolger (1984, DC Kan) 597 F Supp 482, 36 BNA FEP Cas 701.
Tolling of Title VII's charge filing period is discussed in 1317 et seq.
BNA FEP Cas 1856, 31 CCH EPD 33362; Wilkerson v Siegfried Ins. Agency, Inc.
Footnote 61. Lanyon v University of Delaware (1982, DC Del) 544 F Supp 1262, 29
BNA FEP Cas 943.
1291 Employee's belief that act was discriminatory

View Entire Section
Notice or knowledge of a personnel decision is really only one part of the equation for
determining when an alleged discriminatory act has occurred. The other part is the
victim's belief that the employer's decision is discriminatory. A claim will not be
defeated where the complainant had no reason to suspect discrimination until after the
charge filing period has passed. It is only when facts that would support a charge become
apparent that the charge filing period is triggered. 62
Illustration: The charge filing period was not triggered when Black seasonal
employees were told that they would not be recalled, since this was an unexceptional
employment action. Rather, the triggering point occurred when the complainants
learned that white seasonal employees were being recalled. 63
The degree of belief necessary to trigger the charge filing period has occasionally been at
issue. Once the victim knows of the employer's acts, he need only have a suspicion 64
or belief 65 that the act was based on impermissible criteria. The victim does not have
to possess proof to the degree that would be sufficient to establish a prima facie case of
unlawful job discrimination. For example, in a refusal to hire case, the trial court erred in
requiring the plaintiff to show as evidence of a timely filing that she was qualified for the
position awarded to whites. The court said that proof of qualification for the job goes to
the merits of the case and not to the issue of timeliness. 66 However, a member of a
statutorily protected class is not required to presume that a personnel decision is
discriminatory merely because it affects him. 67 If the employee did not know or have
reason to know that the employer's acts were motivated by impermissible criteria, the
filing period may be tolled. 68
Footnotes
Footnote 62. Wolfolk v Rivera (1984, CA7) 729 F2d 1114, 34 BNA FEP Cas 468, 33
CCH EPD 34218.
Footnote 63. Tucker v United Parcel Service (1981, CA5) 657 F2d 724, 27 BNA FEP
Cas 117, 27 CCH EPD 32173.
Footnote 64. McClinton v Alabama By-Products Corp. (1984, CA11) 743 F2d 1483, 35
Footnote 65. Tobin v Trans Union Systems Corp. (1980, ED Pa) 488 F Supp 622, 27
Footnote 66. Nelson v United States Steel Corp. (1983, CA11) 709 F2d 675, 32 BNA
Footnote 67. Tucker v United Parcel Service (1981, CA5) 657 F2d 724, 27 BNA FEP
Cas 117, 27 CCH EPD 32173.
Footnote 68. Stoller v Marsh (1982) 221 App DC 22, 682 F2d 971, 29 BNA FEP Cas 85,
As to tolling where the employer misled the claimant, see 1319.
1292 Effect of ongoing grievance proceedings

View Entire Section
The Supreme Court has recognized that an employer and a union could conceivably agree
to a collective bargaining agreement under which management's ultimate adoption after
grievance proceedings of a supervisor's recommended action against an employee would
be deemed the relevant statutory "occurrence" triggering the Title VII charge filing
period. 69
Recommendation: An employer should not agree to the establishment of such a

"bright line." Often, grievants will delay filing a discrimination charge until an internal
grievance procedure has run its course. In the usual case, the grievant will be unaware
that the charge filing period commenced when he knew or should have known that a
discriminatory act occurred or when he was given notice of the personnel decision
complained of. The net effect of agreeing that the discriminatory event occurs at some
later point in the grievance process is to push back the point at which a claimant must
file his charge.
Absent a collectively-bargained "occurrence," a potential claimant's use of internal
grievance procedures does not usually affect when the charge filing period begins. The
fact that an employer entertains a grievance does not mean that the complained-of
decision was in any respect tentative. The grievance procedure, by its nature, is a remedy
for the prior decision, not a chance to influence the decision before it is made. The
existence of grievance procedures to assure fairness should not obscure the principle that
limitations periods normally commence when the employer's decision is made. 70
Footnotes
Footnote 69. International Union of Electrical, etc. v Robbins & Myers, Inc. (1976) 429
1293 Effect of continuing employment relationship

View Entire Section
The Supreme Court has rejected the argument that the claim filing period should not
commence until the employee is terminated. According to the argument, requiring filing
while the claimant is still employed reduces the employee's job effectiveness, injures
work relationships, and diverts the employee's attentions away from his job duties.
However, the high court ruled that mere continuity of employment, without more, is
insufficient to prolong the life of a cause of action. 71
For example, an employee's receipt of severance benefits following her termination did
not extend the time period for filing a Title VII administrative complaint with the EEOC.
72 Furthermore, a plaintiff's employment relationship with the employer ended for
purposes of his allegedly discriminatory discharge when he accepted a lump-sum
settlement from his employer's insurer for his disability, thereby ending his disability
status. For purposes of the time limitations period, it did not matter that he did not
receive written notice of his termination until the paper-work was completed months
later. 73
Footnotes
Footnote 72. Shipper v Avon Products, Inc. (1985, SD NY) 605 F Supp 701, 44 BNA
FEP Cas 257.
Footnote 73. Moody v Georgia Power Co. (1990, MD Ga) 53 BNA FEP Cas 634.
(ii). Particular Applications [1294-1301]
1294 Hiring cases

View Entire Section
In a Title VII failure to hire case, one court has held that the discriminatory act is
complete and the charge filing period begins to run when the position that the plaintiff
sought is filled and no longer available. 74 The EEOC shares this view. 75
Footnotes
Footnote 74. Gates v Georgia-Pacific Corp. (1974, CA9) 492 F2d 292, 7 BNA FEP Cas
416, 7 CCH EPD 9185.
1295 Testing cases

View Entire Section
In a Title VII case concerning a challenged discriminatory test, the limitations period
begins to run when the claimant receives notice that he failed the test, rather than on the
date he takes the test. 76
Footnotes
Footnote 76. Yates v Mobile County Personnel Bd. (1981, CA5) 658 F2d 298, 27 BNA
1296 Promotion cases

View Entire Section
Go to Supplement
The limitation period for filing a Title VII claim of failure to promote begins when the
individual who has been selected for the job actually begins the job duties of the position.
77 The EEOC's position is that the claim filing period starts when the employer fills the
position or decides not to fill it. 78
1296 ----Promotion cases [SUPPLEMENT]
Case authorities:
All of black hospital employee's 1981 claims are dismissed except those alleging that
she was discriminatorily denied promotions on or since September 23, 1988, where
employee alleges she was discriminated against in retaliation for complaining about
Filipino coworkers who would not speak English to her on job, because complaint was
filed September 23, 1991, and applicable statute of limitations is NYCLS CPLR
214(5), which sets forth 3-year limitation period. McNeil v Aguilos (1993, SD NY) 831 F
Supp 1079, 63 CCH EPD 42684.
Footnotes
Footnote 77. Noble v University of Rochester (1976, CA2) 535 F2d 756, 12 BNA FEP
Cas 1487, 12 CCH EPD 11005.
1297 Transfer cases

View Entire Section
The discriminatory act is complete and the claim filing period commences when the
victim is denied transfer on an impermissible basis under Title VII. 79
Footnotes
Footnote 79. Sangster v United Air Lines, Inc. (1980, CA9) 633 F2d 864, 24 BNA FEP
1298 Performance rating cases

View Entire Section
Title VII's charge filing period begins when the employee learns of discriminatory
performance evaluations. For example, one court found that when a challenged
personnel action is alleged to have been based on a discriminatory performance
evaluation, the discriminatory act occurred when the evaluation was issued, not when the
evaluation was later used to deny an employment opportunity or benefit. 80
Footnotes
Footnote 80. Woolery v Brady (1990, ED Mich) 741 F Supp 667, 53 BNA FEP Cas 913.
1299 College tenure cases

View Entire Section
The Supreme Court's seminal decision 81 in the area of when the filing period begins to
run is Ricks, 82 a college tenure case, involving the following situation: The college's
tenure committee recommended that Ricks not receive a tenured position and agreed to
consider its decision one year later. The committee adhered to its earlier decision.
Subsequently and ultimately, the college's board of trustees formally voted to deny tenure
to Ricks. Ricks immediately filed a grievance with the board's grievance committee.
The grievance committee, during the pendency of the grievance, gave Ricks written
notice of its "intent not to renew" his contract at the end of the 1974-1975 school year,
and that the notice would be superseded if a decision to grant him tenure were made at
the end of the grievance process. The college gave Ricks a one year terminal contract
expiring in June, 1975, and then the board notified Ricks that his grievance had been
denied. The Supreme Court ruled that the statute of limitations for filing a Title VII
charge began to run no later than the date on which Ricks learned that he would be
offered a one year terminal contract. The charge filing period did not begin on the date
of actual termination from employment. Termination was merely a consequence of the
alleged unlawful act, namely, the denial of tenure. It could not be used to fix the date the
charge filing period commenced unless the plaintiff alleged and proved that the manner
of termination itself, as opposed to the decision to deny tenure, was discriminatory. 83
Thus, in tenure cases, pleading that discharge rather than denial of tenure is the
discriminatory act will not delay the start of the limitations period to the date of
discharge. 84
Footnotes
Footnote 81. 1287.
Footnote 84. Chardon v Fernandez (1981) 454 US 6, 70 L Ed 2d 6, 102 S Ct 28, 27
BNA FEP Cas 57, 27 CCH EPD 32205, reh den 454 US 1166, 71 L Ed 2d 322, 102 S
Ct 1042.
1300 --Effect of availability of in-house review of tenure decisions

View Entire Section

After Ricks, 85 the question has arisen as to whether the availability of a procedure for
in-house review of tenure decisions delays the beginning of the charge-filing period past
the date on which the plaintiff is told that tenure has been denied. Courts addressing this
question have ruled that:
the filing period was delayed as long as the denial of tenure recommendation was
subject to further approval. 86
the filing period is not delayed or extended by utilization of procedures that are part of a
grievance process or collateral review rather than an opportunity to alter the decision
before it was made. 87
Footnotes
Footnote 86. Lever v Northwestern University (1990, ND Ill) 55 BNA FEP Cas 1137.
Footnote 87. Hellman v Rosenberg (1984, WD Pa) 37 BNA FEP Cas 1385, affd (CA3)
760 F2d 257, 37 BNA FEP Cas 1408, cert den 473 US 906, 87 L Ed 2d 654, 105 S Ct
3530, 38 BNA FEP Cas 96.
1301 Discharge cases

View Entire Section
In discharge cases, the statute of limitations begins to run from the date the employee
receives notice of discharge, and not from the date of the discharge itself, 88 unless the
receipt of unequivocal notice and the last day of work coincide. 89 However, it has been
held that the actual notice requirement established in Ricks 90 does not apply in
constructive discharge cases and that the claim filing limitations period begins when the
employee takes action against the employer's allegedly discriminatory acts. 91
In discriminatory discharge cases, the alleged unlawful act is not incomplete merely
because the victim continues to receive employment benefits such as periodic severance
pay or extended insurance coverage. 92
Furthermore, the fact that an employer settled
for benefits due upon termination did not operate to extend the date of discharge for
purposes of the charge filing period. 93
Because an employer's refusal to reinstate may be an act of discrimination separate from
the original discharge, a claim based on the refusal to reinstate may be timely even when
a claim based on the original discharge would be time-barred. 94 For example, where
two employees were fired for fighting, the triggering event was the date that one
employee learned that the other had been rehired and that he had not, rather than the date
of his termination. 95
Footnotes
Footnote 89. Naton v Bank of California (1981, CA9) 649 F2d 691. 27 BNA FEP Cas
510, 26 CCH EPD 31824.
Footnote 91. Zises v Prudential Ins. Co. (1982, DC Mass) 4 EBC 1019, 30 BNA FEP Cas
1218, 31 CCH EPD 33384.
Footnote 92. Bonham v Dresser Industries, Inc. (1977, CA3) 569 F2d 187, 16 BNA FEP
Cas 510, 115 BNA LRRM 4653, 15 CCH EPD 8028, cert den 439 US 821, 58 L Ed
2d 113, 99 S Ct 87, 18 BNA FEP Cas 203, 115 BNA LRRM 5079, 17 CCH EPD
8604a.
Footnote 93. Geromette v General Motors Corp. (1979, CA6) 609 F2d 1200, 21 BNA
Footnote 94. Samuels v Raytheon Co. (1989, DC Mass) 1989 US Dist LEXIS 3892.
Footnote 95. Jones v Frank (1989, SD Fla) 718 F Supp 931, 50 BNA FEP Cas 1289, 53
CCH EPD 39850.
(b). Continuing Violations [1302-1316]
(i). General Principles [1302-1306]
1302 Generally
View Entire Section
A continuing violation does not excuse a complainant from adhering to the time limits for
filing a charge. 96 Rather, it simply allows an individual to include in his initial charge
with the EEOC acts that may have occurred outside the limitations period, provided at
least one of the acts fell within that period. 97 However, the alleged discrimination
must be ongoing, and not merely the consequence, or present effect, of a now time-barred
event. The emphasis is therefore not on mere continuity; a critical issue is whether a
present violation exists to which prior acts can be linked. 98
Two types of continuing
violations are recognized by the courts:
(1) The first consists of a series of discriminatory acts, one of which falls within the
applicable limitations period. This type's net effect on timeliness is to extend the charge
filing period to apply to the last discriminatory act in the series. 99
(2) The second type is directed toward systematic discrimination arising from a formal
policy or pattern and practice. Under this type of continuing violation, there is, in effect,
no limitations period. The charge can be brought at any time by a complainant who has
standing. 1
Regardless of which type of continuing violation is alleged, the specificity of the charge
may have an impact on the court's determination of whether there is a continuing
violation. 2
Caution: Unless a continuing violation is actually alleged, claims arising beyond the
limitation period are time-barred and are not actionable.
Footnotes
Footnote 96. Scott v St. Paul Postal Service (1983, CA8) 720 F2d 524, 33 BNA FEP Cas
544, 32 CCH EPD 33901, cert den (US) 79 L Ed 2d 770, 104 S Ct 1453, 34 BNA FEP
Cas 192, 33 CCH EPD 34225.
Footnote 97. Scott v St. Paul Postal Service (1983, CA8) 720 F2d 524, 33 BNA FEP Cas
Cas 192, 33 CCH EPD 34225.
Footnote 99. 1304.
Footnote 1. 1305.
Footnote 2. 1306.
1303 Present effects of past discrimination

View Entire Section
It has often been alleged that an employer's past discriminatory, actions should be
considered a continuing violation of Title VII because they have a continuing impact on
employees. The Supreme Court has stated, however, that mere continuity of impact is not
sufficient to make a past act a continuing violation; "the critical question is whether any
present violation exists." 3
The focus is on the time of the occurrence of the alleged
discriminatory act and not when the effects of the alleged act become painful. 4
In
order for a discriminatory act to be "continuing," there must be more than just the usual
effects that can be expected to result from a discrete act. 5 In such instances, the past
discriminatory event has no present legal consequences and is "merely an unfortunate
event in history." 6
An employer that did not eradicate the effects of a racially discriminatory pay structure
after it became subject to Title VII coverage was liable for any such unlawful action it
perpetuated past the coverage date. Since each discriminatory payment constituted an
actionable violation, 7 the employer remained liable for any present effects of past
discrimination, even though the plaintiffs could not recover for any racial disparities in
pay prior to the time the employer was covered by the Act. 8
The present effects of time-barred allegations of discrimination, and not continuing
violations were found, where:
a claimant alleged that he lacked the requisite time in his current position to be eligible
for a test for a higher position because he was discriminatorily denied appointment to his
current position at an earlier point in time; 9
an employee was terminated based in part on evaluations in his file that he claimed were
the result of discrimination. 10
an employee was not credited with seniority for the periods following her resignation
under the employer's no-marriage policy and her rehiring as a new employee, after the
policy was discontinued by the employer. 11
Footnotes
Footnote 3. United Air Lines, Inc. v Evans (1977) 431 US 553, 52 L Ed 2d 571, 97 S Ct
Footnote 4. Delaware State College v Ricks (1980) 449 US 250, 66 L Ed 2d 431, 101 S
Footnote 5. Platt v Burroughs Corp. (1976 DC Pa) 424 F Supp 1329, 14 BNA FEP Cas
1057.
Footnote 6. United Air Lines, Inc. v Evans (1977) 431 US 553, 52 L Ed 2d 571, 97 S Ct
Footnote 7. 1308.
Footnote 8. Bazemore v Friday (1986) 478 US 385, 92 L Ed 2d 315, 106 S Ct 3000, 41
Footnote 9. Jones v Somerville (1984, CA1) 735 F2d 5, 34 BNA FEP Cas 1577, 34 CCH
EPD 34422.
Footnote 10. Arna v Northwestern University (1986, ND Ill) 640 F Supp 923, 41 BNA
FEP Cas 647.
1304 Series of discriminatory acts

View Entire Section
Go to Supplement
A charge alleging a series of discriminatory acts, some of which occurred beyond the
charge filing period, is timely, if:
the alleged discrimination pervades the series of events; 12
there is a present violation of the Act; 13
the present acts of alleged discrimination are related to the time-barred events; 14
the charge covering the present violation is filed within the limitations period. 15
In determining whether a series of acts constitutes a continuing violation or whether each
act is a discrete act which must be regarded as an individual violation, three factors are
relevant. The first is whether the acts involve the same type of discrimination, tending to
connect them in a continuing violation. The second is whether the acts are recurring or
more in the nature of isolated employment decisions. The third is whether each act has a
degree of permanence which should trigger an employee's awareness of and duty to assert
his right. 16 Whether the requisite "degree of permanence" exists depends on what the
plaintiff knew or should have known at the time of the violation. A plaintiff has an
obligation to file promptly or lose the claim, but if he does not perceive discrimination
until a series of acts occur, he should not be penalized for his failure to file a charge
earlier. 17
A continuing violation was sufficiently stated based on a "series" of discriminatory acts
where:
an employee's underlying claim of discrimination was encompassed within a timely
filed charge of retaliation for having filed that claim, even though the actions complained
of in the underlying claim fell outside of the charge-filing period. 18
an instance of unequal pay occurring before the beginning of the charge-filing period
was one incident in an ongoing pattern of discriminatory treatment continuing through a
time encompassed by the filing period. 19
the employer was alleged to have filled vacancies with less qualified men through a
sexually discriminatory manipulation of the promotion and evaluation system, thereby
continuing to deny the female plaintiff an equal opportunity for advancement. 20
Nevertheless, courts have rejected "series" claims of continuing violations and have
construed allegations as consisting of complete and discrete acts 21 or isolated events.
22 For instance, the EEOC charge filing period began to run anew the second time the
plaintiff was refused employment. The first time occurred beyond the charge filing
period and was time-barred. 23 In other cases, stale claims were not freshened by an
allegation that a discriminatory act, totally different in nature from the earlier claimed
violations, was part of a continuous chain of discrimination against the plaintiff. 24 In
such instances, the only actionable discriminatory event is the last one for which a timely
filing was made. 25
1304 ----Series of discriminatory acts [SUPPLEMENT]
Case authorities:
There are two kinds of continuing violations, systemic and serial; serial violation is
number of discriminatory acts emanating from same discriminatory animus, each act
constituting separate wrong actionable under Title VII. Kassaye v Bryant College (1993,
CA1 RI) 999 F2d 603, 62 BNA FEP Cas 724, 62 CCH EPD 42483, summary op at
(CA1 RI) 21 M.L.W. 3212, 14 R.I.L.W. 389.
Footnotes
Footnote 12. Milton v Weinberger (1981) 207 App DC 145, 645 F2d 1070, 25 BNA FEP
Cas 134, 25 CCH EPD 31595.
Footnote 14. Held v Gulf Oil Co. (1982, CA6) 684 F2d 427, 29 BNA FEP Cas 837, 29
CCH EPD 32968; Donaldson v Cafritz Co. (1981, DC Dist Col) 30 BNA FEP Cas 436.
Footnote 15. First CircuitGoldman v Sears, Roebuck & Co. (1979, CA1) 607 F2d
Seventh CircuitElliott v Sperry Rand Corp. (1978, DC Minn) 79 FRD 580, 21 BNA
FEP Cas 677.
Sixth CircuitRoberts v North American Rockwell Corp. (1981, CA6) 650 F2d 823, 25
Eighth CircuitCedeck v Hamiltonian Federal Sav. & Loan Asso. (1977, CA8) 551 F2d
Footnote 16. Berry v Board of Supervisors of L.S.U. (1985, CA5) 783 F2d 1270, 39 CCH
EPD 35964, cert den (US) 93 L Ed 2d 158, 107 S Ct 232.
Footnote 17. Sabree v United Brotherhood of Carpenters & Joiners Local No. 33 (1990,
Footnote 18. Parker v AT&T Technologies, Inc. (DC Kan) No. 85-2558, 9/26/86.
Footnote 19. Bakken v North American Coal Corp. (1986, DC ND) 641 F Supp 1015.
Footnote 20. Morley v New England Tel. Co. (1986, DC Mass) 46 BNA FEP Cas 1511,
28 BNA WH Cas 1079.
Footnote 21. Molybdenum Corp. of America v EEOC (1972, CA10) 457 F2d 935, 4
BNA FEP Cas 522, 4 CCH EPD 7738; De Medina v Reinhardt (1978, DC Dist Col)
Footnote 22. Loo v Gerarge (1974, DC Hawaii) 374 F Supp 1338, 8 BNA FEP Cas 30, 8
CCH EPD 9509.
Footnote 23. Molybdenum Corp. of America v EEOC (1972, CA10) 457 F2d 935, 4
Footnote 24. Tarvesian v Carr Div. of TRW, Inc. (1976, DC Mass) 407 F Supp 336, 16
BNA FEP Cas 348, 11 CCH EPD 10928; Slevin v Safeguard Business Systems, Inc.
(1982, ND Ill) 31 BNA FEP Cas 193, 31 CCH EPD 33392.
Footnote 25. Third CircuitPao v Holy Redeemer Hospital (1982, ED Pa) 547 F Supp
484, 31 BNA FEP Cas 580.
Eighth CircuitOlson v Rembrandt Printing Co. (1975, CA8) 511 F2d 1228, 10 BNA
DC CircuitDe Medina v Reinhardt (1978, DC Dist Col) 444 F Supp 573, 20 BNA FEP
Cas 280, 17 CCH EPD 8496.
1305 Systematic discrimination

View Entire Section
A continuing violation can be premised on systematic discrimination; that is,
discrimination which is "institionalized" within the employer's policies or practices. 26
A continuing violation can result from the employer's repetition of a discriminatory act or
a refusal to correct a discriminatory practice. 27 In such instances, the continuing
violation allegation attacks the underlying policy giving rise to the violation of the job
discrimination statute. 28
This type of continuing violation allegation has been used to attack alleged
discrimination arising under formal policies maintained by an employer relating to
retirement plans, 29 seniority systems, 30 work site assignments, 31 bonuses, 32
and maternity. 33 Similarly, an employer's automatic exclusion of all Jewish applicants
for positions in Saudi Arabia, without attempting to discern the official position of that
country concerning such applicants, constituted a continuing violation with respect to
charges of religious discrimination. 34
However, an employer's dress code policy was not a continuing violation since the initial
refusal of the plaintiff's request to wear a dress constituted an isolated employment act,
and repeated requests to do so were merely requests to reconsider the initial decision, and
did not constitute separate employment decisions. 35
The courts are divided over the issue of when a plaintiff can assert a continuing violation
claim that attacks a discriminatory policy. Some courts take the position that the mere
extension of the policy into the charge filing period is enough, and that the plaintiff can
file a charge against the policy at any time. 36
In the EEOC's view, a charge that states
that an employer has an existing discriminatory "policy" that continues into the charge
filing period is always timely. 37
Observation: Under the "mere existence" approach, a claimant could allege a

continuing violation without first incurring actual harm or damage from the application
of the policy. The present violation is the continued existence of the policy itself into
the charge filing period. The charge filing period is any time that the policy is
maintained.
On the other hand, a number of courts have ruled that the claimant's cause of action does
not accrue (and the charge filing period does not start) until the claimant suffers some
injury or adverse effect from the application of the allegedly discriminatory policy or
system. 38
It has been said that a claim is not enforceable until a discriminatory
event has occurred 39 and that remedies must be based on a violation of the statute. 40
Courts have viewed a pattern and practice of discrimination as systematic discrimination
in a less formal sense. 41 On that basis, charges encompassing alleged discriminatory
acts that occurred outside of the charge filing period have been viewed as timely, because
the claim is against the ongoing discriminatory nature of the pattern and practice rather
than a specific discriminatory event caused by the system. 42
Furthermore, a continuing violation can arise from an employer's covert policies as well
as its overt practices. Thus, where discriminatory hiring was shown statistically to have
occurred over time, the EEOC did not have to offer evidence of the employer's overt
policy of discrimination through proof of specific instances of discrimination in order to
show a continuing violation. 43
Footnotes
Footnote 26. Elliott v Sperry Rand Corp. (1978, DC Minn) 79 FRD 580, 21 BNA FEP
Cas 677.
Footnote 27. Ligon v Frito-Lay, Inc. (1979, ND Tex) 82 FRD 42, 19 BNA FEP Cas 312.
Footnote 28. Second CircuitKohn v Royall, Koegel & Wells (1973, SD NY) 59 FRD
8828.
Sixth CircuitRoberts v North American Rockwell Corp. (1981, CA6) 650 F2d 823, 25
Seventh CircuitBartmess v Drewrys U.S.A., Inc. (1971, CA7) 444 F2d 1186, 3 BNA
Footnote 29. Bartmess v Drewrys U.S.A., Inc. (1971, CA7) 444 F2d 1186, 3 BNA FEP
Footnote 30. Morelock v NCR Corp. (1978, CA6) 586 F2d 1096, 18 BNA FEP Cas 225,
Footnote 31. Gifford v Atchison, T. & S. F. R. Co. (1982, CA9) 685 F2d 1149, 34 BNA
Footnote 33. Mamos v School Committee of Wakefield (1983, DC Mass) 553 F Supp
989, 30 BNA FEP Cas 1051.
Footnote 34. Abrams v Baylor College of Medicine (1986, CA5) 805 F2d 528, 42 BNA
Footnote 35. Sessom v Milwaukee Distribution Center, Inc. (1986, ND Miss) 645 F Supp
Footnote 36. Third CircuitTyson v Sun Refining & Marketing Co. (1984, ED Pa) 36
BNA FEP Cas 875.
Seventh CircuitBartmess v Drewrys U.S.A., Inc. (1971, CA7) 444 F2d 1186, 3 BNA
Ninth CircuitGifford v Atchison, T. & S.F.R. Co. (1982, CA9) 685 F2d 1149, 34 BNA
FEP Cas 240, 29 BNA FEP Cas 1345, 30 CCH EPD 33118; Serpe v Four-Phase
Systems, Inc. (1983, CA9) 718 F2d 935, 33 BNA FEP Cas 178, 32 CCH EPD 33862.
DC CircuitMacklin v Spector Freight Systems, Inc. (1973) 156 App DC 69, 478 F2d
Footnote 38. Second CircuitAcha v Beame (1978, CA2) 570 F2d 57, 16 BNA FEP Cas
526, 15 CCH EPD 8040; EEOC v Home Ins. Co. (1982, SD NY) 553 F Supp 704, 3
Third CircuitEEOC v Westinghouse Electric Corp. (1983, CA3) 725 F2d 211, 4 EBC
2684, 33 BNA FEP Cas 945, 33 CCH EPD 34045, amd (CA3) 33 BNA FEP Cas 1816
and cert den (US) 83 L Ed 2d 38, 105 S Ct 92, 5 EBC 2640, 35 BNA FEP Cas 1607, 35
CCH EPD 34663.
Sixth CircuitMorelock v NCR Corp. (1978, CA6) 586 F2d 1096, 18 BNA FEP Cas
Footnote 39. EEOC v Westinghouse Electric Corp. (1983, CA3) 725 F2d 211, 4 EBC
2684, 33 BNA FEP Cas 945, 33 CCH EPD 34045, amd (CA3) 33 BNA FEP Cas 1816
and cert den (US) 83 L Ed 2d 38, 105 S Ct 92, 5 EBC 2640, 35 BNA FEP Cas 1607, 35
CCH EPD 34663.
Footnote 40. Acha v Beame (1978, CA2) 570 F2d 57, 16 BNA FEP Cas 526, 15 CCH
EPD 8040.
Footnote 41. Sixth CircuitTrivett v Tri-State Container Corp. (1971, ED Tenn) 368 F
Ninth CircuitReed v Lockheed Aircraft Corp. (1980, CA9) 613 F2d 757, 22 BNA FEP
Cas 1049, 22 CCH EPD 30602.
DC CircuitMacklin v Spector Freight Systems, Inc. (1973) 156 App DC 69, 478 F2d
Footnote 42. Wetzel v Liberty Mut. Ins. Co. (1975, CA3) 508 F2d 239, 9 BNA FEP Cas
BNA FEP Cas 1056, 9 CCH EPD 10176; Shehadeh v Chesapeake & Potomac Tel. Co.
(1978) 193 App DC 326, 595 F2d 711, 18 BNA FEP Cas 614, 18 CCH EPD 8683.
Footnote 43. EEOC v Chicago Miniature Lamp Works (1986, ND Ill) 640 F Supp 1291,
1306 Pleading continuing violations

View Entire Section
In determining whether the charge filing period has been suspended by the application of
the continuing violation doctrine, courts focus on the pleadings to assess whether a
continuing violation has been alleged. Unless a continuing violation is alleged, claims
arising beyond the limitation period are time-barred and not actionable. 44
The bare assertion that violations are continuing is usually not sufficient. 45
However,
some courts have taken the position that the existence of a continuing violation is a
factual question that cannot be resolved through a motion to dismiss, where the plaintiff
has alleged a continuous pattern of discrimination in general terms and may be able to
prove a present violation. 46 It has also been said that a complaint should not be
narrowly read to reflect isolated instances of discrimination, where the allegations present
pervasive and longstanding discrimination. 47 In one case, the court found a continuing
violation not on the basis of what the allegations stated precisely, but rather on what, in
the court's view, an EEOC investigation of the charges would have revealed. 48
The plaintiff must allege facts showing that the discrimination, and not just the injury, is
ongoing. An employee's charge of race discrimination, resulting from the alleged denial
of seniority rights and benefits without a recitation of facts suggesting a continuing
violation, did not encompass a claim of discriminatory transfer occurring almost two and
one-half years later. 49
Job discrimination suits have been dismissed, where the
plaintiff's EEOC charges did not assert a later violation within the charge filing period 50
or allege facts connecting earlier discriminatory events to the ones for which timely
charges were filed. 51
Recommendation: In preparing an EEOC charge alleging a continuing violation, the

allegations should reflect with sufficient clarity the continuous and ongoing nature of
the discrimination. The charge or the complaint should expressly state that the
violations are continuing violations.
Footnotes
Footnote 44. De Medina v Reinhardt (1978, DC Dist Col) 444 F Supp 573, 20 BNA FEP
Cas 280, 17 CCH EPD 8496.
Footnote 45. Patterson v General Motors Corp. (1980, CA7) 631 F2d 476, 23 BNA FEP
27 BNA FEP Cas 221, 27 CCH EPD 32268; Tarvesian v Carr Div. of TRW, Inc. (1976,
DC Mass) 407 F Supp 336, 16 BNA FEP Cas 348, 11 CCH EPD 10928.
Footnote 46. Shehadeh v Chesapeake & Potomac Tel. Co. (1978) 193 App DC 326, 595
Footnote 47. Reed v Lockheed Aircraft Corp. (1980, CA9) 613 F2d 757, 22 BNA FEP
Cas 1049, 22 CCH EPD 30602.
Footnote 48. Serpe v Four-Phase Systems, Inc. (1983, CA9) 718 F2d 935, 33 BNA FEP
Cas 178, 32 CCH EPD 33862.
Footnote 49. Patterson v General Motors Corp. (1980, CA7) 631 F2d 476, 23 BNA FEP
Footnote 50. Smith v American President Lines, Ltd. (1978, CA2) 571 F2d 102, 16 BNA
Footnote 51. Milton v Weinberger (1981) 207 App DC 145, 645 F2d 1070, 25 BNA FEP
Cas 134, 25 CCH EPD 31595, later app 225 App DC 12, 696 F2d 94, 30 BNA FEP Cas
(ii). Particular Applications [1307-1316]
1307 Hiring cases

View Entire Section
A refusal to hire is not normally considered a continuing violation. 52 However, an
employer's retention of a job application for nine months provided a basis for an alleged
discriminatory refusal to hire the applicant throughout the nine-month period. 53
Similarly, a black applicant who had no notice of the employer's continuing use of
discriminatory word-of-mouth and nepotistic recruitment practices until it rejected his
latest application shortly before he filed his EEOC charge stated a continuing violation
because his application had remained on file with the employer for six years and he
regularly updated it. 54 Furthermore, a refusal to hire can been viewed as a continuing
violation, if the complaining party alleges that the refusal of employment resulted from
an ongoing pattern and practice of discrimination. 55
The courts are divided over whether a refusal to hire arising from the earlier use of a
discriminatory testing device constitutes a continuing violation. Some courts take the
view that those circumstances do present a continuing violation. 56
However, other
courts has said that there is no continuing violation, where the individual is advised that
he will not be placed on an eligibility list due to a low test score. 57
Footnotes
Footnote 52. Culpepper v Reynolds Metals Co. (1968, ND Ga) 296 F Supp 1232, 1 BNA
FEP Cas 590, 70 BNA LRRM 2360, 1 CCH EPD 9942, 59 CCH LC 9185, revd on
other grounds (CA5) 421 F2d 888, 2 BNA FEP Cas 377, 2 CCH EPD 10138, 61 CCH
LC 9374, amd (CA5) 2 BNA FEP Cas 506; Ashley v Goshen Community Schools
Corp. (1978, ND Ind) 461 F Supp 22, 18 BNA FEP Cas 1816, affd without op (CA7) 588
F2d 839, 19 BNA FEP Cas 887; Jacobs v Board of Regents (1979, SD La) 473 F Supp
Footnote 53. Din v Long Island Lighting Co. (1979, ED NY) 463 F Supp 654, 18 BNA
Footnote 54. Taylor v USAir, Inc. (1991, WD Pa) 56 BNA FEP Cas 357.
Footnote 55. Second CircuitKohn v Royall, Koegel & Wells (1973, DC NY) 59 FRD
8828, app dismd on other grounds (CA2) 496 F2d 1094, 7 BNA FEP Cas 994, 7 CCH
EPD 9337.
Fifth CircuitLigon v Frito-Lay, Inc. (1979, ND Tex) 82 FRD 42, 19 BNA FEP Cas
312.
Seventh CircuitTaterka v Wisconsin Tel. Co. (1975, ED Wis) 394 F Supp 862, 10
BNA FEP Cas 966, 10 CCH EPD 10338, affd without op (CA7) 559 F2d 1224, cert den
434 US 924, 54 L Ed 2d 281, 98 S Ct 402.
Eighth CircuitSmith v Office of Economic Opportunity for Arkansas (1976, CA8) 538
Dist Col CircuitMacklin v Spector Freight Systems, Inc. (1973) 156 App DC 69, 478
(1980, CA2) 633 F2d 232, 23 BNA FEP Cas 677, 23 CCH EPD 31153, affd 463 US
582, 77 L Ed 2d 866, 103 S Ct 3221, 32 BNA FEP Cas 250, 32 CCH EPD 33695 and
cert den (US) 77 L Ed 2d 1410, 103 S Ct 3568, 32 BNA FEP Cas 359, 32 CCH EPD
33698; Gonzalez v Firestone Tire & Rubber Co. (1980, CA5) 610 F2d 241, 21 BNA FEP
Cas 1367, 22 CCH EPD 30586.
Footnote 57. Bronze Shields, Inc. v New Jersey Dept. of Civil Service (1981, CA3) 667
1308 Wage and benefits cases

View Entire Section
A continuing violation is presented each time unequal pay for equal work is received by
the claimant. For example, each week's paycheck, containing a discriminatory wage,
constitutes a separate wrong actionable under Title VII. 58
The claimant can litigate
the initial denial of equal pay even though it has occurred beyond the charge filing
limitations period. 59
However, wage discrimination also was not a continuing violation when:
there had been a single isolated incident when a male employee was paid more than
similarly situated female employees, but the male comparator was no longer employed
and thus there was no present policy or practice of disparity in wages. 60
a present disparity in pay was entirely the result of a discrete act of discrimination that
occurred years before. 61
A continuing violation based on the discriminatory denial of benefits was presented,
where:
an employer denied an annuity to the widow of a deceased former employee, under an
insurance contract which limited benefits for male employees to those who attained age
60 before they died, but gave full benefits to female employees who reached age 55; 62
the employer maintained a discriminatory health and hospitalization insurance policy;
63
the employer offered an attendance bonus to female employees but not to male
employees. 64
However, benefit payments based on a retirement that has already occurred do not
constitute a continuing violation when the pension plan is funded on an acturarial basis
and benefits are fixed by contract. Otherwise, the essential principles of an actuarially
funded pension plan would be rendered meaningless and an employer would be held
liable for all its past conduct, regardless of when it could have first been deemed liable
under court precedent. 65
Also, the receipt of pension payments pursuant to a fair and sex-neutral pension plan
does not constitute a continuing violation within the meaning of Title VII, even though
the amount of pension payments is derived from an allegedly sex discriminatory salary
scale. 66
Footnotes
Footnote 58. Bazemore v Friday (1986) 478 US 385, 92 L Ed 2d 315, 106 S Ct 3000,
Footnote 59. Third CircuitJenkins v Home Ins. Co. (1980, CA4) 635 F2d 310, 24 BNA
Fourth CircuitJacobs v Board of Regents (1979, SD Fla) 473 F Supp 663, 21 BNA
FEP Cas 1656, 21 CCH EPD 30465.
Sixth CircuitHall v Ledex, Inc. (1982, CA6) 669 F2d 397, 30 BNA FEP Cas 82, 27
CCH EPD 32367.
Eighth CircuitSatz v ITT Financial Corp. (1980, CA8) 619 F2d 738, 22 BNA FEP Cas
929, 22 CCH EPD 30843.
Footnote 60. EEOC v Penton Industrial Pub. Co. (1988, CA6) 851 F2d 835, 47 BNA FEP
Cas 458, 28 BNA WH Cas 1251, 47 CCH EPD 38128.
Footnote 61. Sosa v Illinois Dept. of Public Aid (1988, ND Ill) 1988 US Dist LEXIS
11239; Coe v Cascade Wood Components, Inc. (1988, DC Or) 48 BNA FEP Cas 664, 29
BNA WH Cas 19.
Footnote 62. Mixson v Southern Bell Tel. & Tel. Co. (1971, ND Ga) 334 F Supp 525, 4
Footnote 63. Willett v Emory & Henry College (1977, WD Va) 427 F Supp 631, 14 BNA
FEP Cas 580, affd (CA4) 569 F2d 212, 16 BNA FEP Cas 624, 15 CCH EPD 8043.
Footnote 66. Freude v Bell Tel. Co. (1977, ED Pa) 438 F Supp 1059, 15 BNA FEP Cas
1255, 15 CCH EPD 7983; Alston v Allegheny Ludlum Steel Corp., Div. of Allegheny
Ludlum Industries, Inc. (1978, WD Pa) 449 F Supp 553, rereported (WD Pa) 465 F Supp
1309 Training cases

View Entire Section
An allegation of discriminatory exclusion from a carpenter's apprentice program has been
held to present a continuing violation of Title VII, where the exclusion continually
precluded the charging party from entry into the carpentry trade. 67 However, the failure
to train a female employee sufficiently for the job which she was given and from which
she was subsequently removed one year later has been held not to constitute a continuing
violation. 68
Footnotes
Footnote 67. Peterson v Lehigh Valley District Council (1978, ED Pa) 453 F Supp 735,
Footnote 68. Wood v Southwestern Bell Tel. Co. (1977, ED Mo) 442 F Supp 41, 17 BNA
FEP Cas 241, revd on other grounds (CA8) 580 F2d 339, 17 BNA FEP Cas 1364, 17
CCH EPD 8499.
1310 Transfer and promotion cases

View Entire Section

Some courts have been inclined to accept allegations that the denial of transfer and
promotional opportunities is based on an employer's overall policy. 69
For example, a
plaintiff alleging promotion denials was concerned not only with her failure to be
promoted but also with her overall upward mobility in the organization, and, viewed in
this light, the alleged unlawful employment practice was a continuing one. 70 The
continuing violation theory also has been successfully invoked to challenge promotion
and transfer denials based on:
a seniority system that was discriminatorily applied each time a male employee with
less total seniority was promoted ahead of more senior female employees. 71
a single, continuous policy ongoing at a federal agency since its adoption, was applied
to deny the plaintiff a promotion during the limitations period. 72
In other cases, however, courts have taken a more restrictive approach and have refused
to view allegedly discriminatory denials of promotion or transfer as continuing violations
under the particular circumstances. 73 For instance, a continuing violation theory could
not be invoked to challenge:
the refusal to allow an employee to transfer seniority earned in one district to another
district, when the employee knew or should have known that seniority could not be
transferred almost three years before he filed his EEOC charge. 74
denial of a promotion to the same vacancy three different times by three different
selection plans over seven years, when there was no indication that the panels would
reconsider their recommendations. 75
Observation: The reason why a continuing violation was stated in Hatcher-Capers

76 but not in Kao 77 is that in the former case the promotion denials were linked by a
continuous policy, while in the latter case they were not.
A continuing violation also was not presented each time a white employee was promoted
into an apprenticeship program over blacks who had not achieved a qualifying score in a
discriminatory program entry test. The discriminatory act was complete when the test
scores were graded. 78
Footnotes
Footnote 69. First CircuitJohnson v General Electric (1988, CA1) 840 F2d 132, 46
Third CircuitWetzel v Liberty Mut. Ins. Co. (1975, CA3) 508 F2d 239, 9 BNA FEP
BNA FEP Cas 1056, 9 CCH EPD 10176; Vera v Bethlehem Steel Corp. (1978, MD Pa)
Fifth CircuitJacobs v Board of Regents (1979, SD Fla) 473 F Supp 663, 21 BNA FEP
Cas 1656, 21 CCH EPD 30465; Belt v Johnson Motor Lines, Inc. (1972, CA5) 458 F2d
Eighth CircuitCedeck v Hamiltonian Federal Sav. & Loan Asso. (1977, CA8) 551 F2d
Ninth CircuitCorbin v Pan American World Airways, Inc. (1977, ND Cal) 432 F Supp
939, 432 F Supp 939, 16 BNA FEP Cas 353, 15 CCH EPD 7872.
Dist Col CircuitColes v Penney (1978, DC Dist Col) 450 F Supp 897, 20 BNA FEP
Cas 1726.
Tenth CircuitRich v Martin Marietta Corp. (1975, CA10) 522 F2d 333, 11 BNA FEP
Cas 211, 10 CCH EPD 10339.
Footnote 70. Cedeck v Hamiltonian Federal Sav. & Loan Asso. (1977, CA8) 551 F2d
Footnote 71. EEOC v Paramount Potato Chip Co. (1990, ED Mich) 1990 US Dist LEXIS
16389.
Footnote 72. Hatcher-Capers v Haley (1992, DC Dist Col) 786 F Supp 1054, 59 BNA
FEP Cas 431.
Footnote 73. Second CircuitGill v Monroe County Dept. of Social Services (1978, WD
NY) 79 FRD 316, 19 BNA FEP Cas 540.
Third CircuitPresseisen v Swarthmore College (1977, ED Pa) 442 F Supp 593, 15
Fifth CircuitHarris v Anaconda Aluminum Co. (1979, ND Ga) 479 F Supp 11, 23 BNA
Seventh CircuitDu Pree v E. J. Brach & Sons, Div. of American Home Products Corp.
(1977, ND Ill) 77 FRD 3, 19 BNA FEP Cas 82.
Eighth CircuitMartin v Georgia-Pacific Corp. (1977, CA8) 568 F2d 58, 16 BNA FEP
Cas 303, 15 CCH EPD 7982.
Dist Col CircuitScott v Claytor (1978, DC Dist Col) 469 F Supp 22, 25 BNA FEP Cas
1208, 17 CCH EPD 8638.
Footnote 74. Payne v Illinois C. G. Railroad (1987, WD Tenn) 665 F Supp 1308, 48
Footnote 75. Kao v Scherl (1989, ED NY) 49 CCH EPD 38889.
FEP Cas 431.
Footnote 77. Kao v Scherl (1989, ED NY) 49 CCH EPD 38889.

Footnote 78. Dickerson v U.S. Steel Corp. (1980, ED Pa) 23 BNA FEP Cas 1088.
1311 Layoff and recall cases

View Entire Section
The typical discriminatory layoff is a completed act. 79 Nevertheless, a claim of
continuing discrimination can be based on a failure to recall, since a layoff, as
distinguished from a discharge or quitting, suggests a possibility of reemployment. 80
Thus, it has been ruled to be continuous discrimination, excusing the otherwise late filing
of charges, for an employer to recall employees from a layoff other than in accordance
with seniority; 81 or to reinstate female former employees to less preferable positions
than ones to which they would have been entitled but for the operation of the employer's
discriminatory no-motherhood policy in their former job category. 82
In addition, a successor employer's hiring of only active employees of the predecessor,
and its extinguishing of the recall rights of the predecessor's laid-off employees without
notifying them, constituted a continuing violation. 83
Furthermore, a claim for discriminatory failure to recall or rehire can be based on an
application for reemployment which was submitted at a time outside the time period
covered by the claimant's EEOC charge, where the claimant can show that the employer
was aware of the claimant's continuing desire to be considered for employment and that
such awareness continued to a point within the charge filing period. 84
In contrast, however, an employer's continuing failure to recall a black employee from
layoff was not a continuing violation, and individual instances of the recall of less senior
white employees triggered the running of the limitation period for the black employee. 85
In another case, discrimination was not continuing where the plaintiffs complained of a
discriminatory layoff, but could not show that they were placed behind all employees
holding a "permanent rate" in their company's salary structure and that they would
conceivably be subject to lower wages, greater risk of future layoff, or diminished
chances of promotion and transfer as a result of the layoff. 86
Footnotes
Footnote 79. Sciaraffa v Oxford Paper Co. (1970, DC Me) 310 F Supp 891, 2 BNA FEP
Cas 398, 2 CCH EPD 10167, 62 CCH LC 9396; Mobley v Acme Markets, Inc. (1979,
DC Md) 473 F Supp 851, 20 BNA FEP Cas 620.
Footnote 80. Cox v United States Gypsum Co. (1969, CA7) 409 F2d 289, 1 BNA FEP
Cas 714, 70 BNA LRRM 3278, 2 CCH EPD 9988, 60 CCH LC 9230; Robertson v
Maryland State Dept. of Personnel (1978, DC Md) 481 F Supp 108, 33 BNA FEP Cas
891, 2 BNA FEP Cas 398, 2 CCH EPD 10167, 62 CCH LC 9396; Cox v United
States Gypsum Co. (1969, CA7) 409 F2d 289, 1 BNA FEP Cas 714, 70 BNA LRRM
3278, 2 CCH EPD 9988, 60 CCH LC 9230.
Footnote 82. Re Consolidated Pretrial Proceedings in Airline Cases (1978, CA7) 582 F2d
Footnote 83. Sandoval v Saticoy Lemon Assn. (1990, CD Cal) 747 F Supp 1373, 56
Footnote 84. Hansbury v Regents of University of Cal. (1979, CA10) 596 F2d 944, 19
BNA FEP Cas 803, 19 CCH EPD 9127, ovrld on other grounds Garcia v Wilson
(CA10) 731 F2d 640.
Footnote 85. Burris v Wright Constr. Co. (1978, DC Del) 459 F Supp 157, 18 BNA FEP
Cas 522.
Footnote 86. Tippett v Liggett & Myers Tobacco Co. (1975, MD NC) 402 F Supp 934,
1312 Seniority cases

View Entire Section
As amended by the Civil Rights Act of 1991, 87 Title VII provides that the time within
which a charge challenging a seniority system that has been adopted for an intentionally
discriminatory purpose, whether or not the system appears to be discriminatory on its
face, begins to run when such a seniority system is adopted, when an individual becomes
subject to the system, or when the individual is injured by the application of the system
or a provision of the system. 88
Before Title VII was amended, the Supreme Court had held in Lorance v AT&T
Technologies 89 that the statute of limitations for challenging a facially neutral
seniority system adopted for discriminatory reasons began to run when the system was
adopted rather than when it was adversely applied to an aggrieved individual. In effect,
Lorance required employees to challenge immediately any new seniority rule or practice
that might conceivably be applied adversely to them or lose forever the right to do so,
often resulting either in prejudice to informal efforts to resolve disputes without resort to
litigation or loss of the opportunity to challenge a discriminatory seniority system before
the employee was actually harmed by the system's application. 90
The Civil Rights Act of 1991 supersedes Lorance. 91
Footnotes
Footnote 87. P.L. 102-166 112.

Footnote 89. Lorance v AT&T Technologies, Inc. (1989) 490 US 900, 104 L Ed 2d 961,
Footnote 90. S Rept No. 101-315, 6/8/90, pp. 7, 27-28, 54.
1313 Forced leave or resignation cases

View Entire Section
The Supreme Court has held that an airline which forced a female flight attendant to
resign her position upon her marriage, prior to invalidation of the airline's no-marriage
policy under Title VII, did not commit a present continuing violation of Title VII by
refusing to credit her with seniority for any time period prior to the date of her rehiring in
1972. 92
However, a continuing violation was asserted in a case involving an
employer's policy of requiring employees to take unpaid maternity leave, where the
plaintiff's allegation was directed toward both the continuing effect of the policy on the
plaintiff's employment status, as well as the present maintenance of the policy. 93 In
addition, a continuing violation was asserted where the employer's reinstatement policy
following leave due to pregnancy was discriminatory since it was different from the
employer's disability policy in that it failed to guarantee reinstatement. 94
Footnotes
Footnote 93. Burwell v Eastern Air Lines, Inc. (1975, ED Va) 394 F Supp 1361, 10 BNA
Footnote 94. EEOC v AT&T Technologies, Inc. (1988, ND Ill) 1988 US Dist LEXIS
395.
1314 Termination and discharge cases

View Entire Section

The termination of an employee normally is not considered a continuing violation. 95
However, a collective bargaining agreement provision requiring retirement at age 62 for
women and 65 for men engendered a continuing practice of discrimination during the
entire period of employment. A female employee could file an EEOC charge
complaining of the policy at any time prior to her actual retirement date. 96
Footnotes
Footnote 95. Fifth CircuitProphet v Armco Steel, Inc. (1978, CA5) 575 F2d 579, 17
Seventh CircuitTerry v Bridgeport Brass Co. (1975, CA7) 519 F2d 806, 11 BNA FEP
Cas 628, 10 CCH EPD 10355.
Eighth CircuitOlson v Rembrandt Printing Co. (1975, CA8) 511 F2d 1228, 10 BNA
Ninth CircuitCollins v United Air Lines, Inc. (1975, CA9) 514 F2d 594, 10 BNA FEP
Cas 728, 9 CCH EPD 10082.
Footnote 96. Bartmess v Drewrys U.S.A., Inc. (1971, CA7) 444 F2d 1186, 3 BNA FEP
1315 Post-employment practices cases

View Entire Section
Termination from employment ends the continuing nature of a violation and former
employees cannot assert continuing violation complaints after the charge filing period
has run following termination. 97
An employee who allegedly was unlawfully discharged cannot attempt to turn that act
into a continuing violation by alleging an unlawful refusal to rehire, 98 unless the
employer is contractually obligated (e.g., by layoff-recall provisions of a collective
bargaining agreement) to rehire the individual. 99 Furthermore, several courts have
rejected the argument that the denial of a request for reinstatement during the charge
filing period revives a claim of discriminatiory discharge that occurred prior to the charge
filing period. 1
However, at least two courts have held that a charge with respect to the giving of
unfavorable recommendations and references following an individual's discharge
involved a continuing violation of Title VII. 2 The determination of whether a charge is

timely filed with respect to unfavorable recommendations should be made with reference
to the last instance of such a communication prior to the filing of the charge. 3 In
contrast, the Second Circuit has held that an employer's filing of incompetence charges
against an employee with the Coast Guard did not constitute a continuing violation, even
though it took approximately 11 months for the Coast Guard to dismiss the charges and
the charges had a continuing impact on the employee's ability to secure other
employment. 4
Footnotes
Footnote 97. Terry v Bridgeport Brass Co. (1975, CA7) 519 F2d 806, 11 BNA FEP Cas
628, 10 CCH EPD 10355; Olson v Rembrandt Printing Co. (1975, CA8) 511 F2d 1228,
Footnote 98. Hiscott v General Electric Co. (1975, CA6) 521 F2d 632, 11 BNA FEP Cas
292, 10 CCH EPD 10378; Woodburn v LTV Aerospace Corp. (1976, CA5) 531 F2d
750, 12 BNA FEP Cas 1667, 11 CCH EPD 10927; Brohl v Singer Co. (1976, MD Fla)
Footnote 99. McGinley v Burroughs Corp. (1975, ED Pa) 407 F Supp 903, 12 BNA FEP
Cas 112, 12 CCH EPD 10965; Wagner v Sperry Univac, Div. of Sperry Rand Corp.
(1978, ED Pa) 458 F Supp 505, 19 BNA FEP Cas 1567, 18 CCH EPD 8906; Stanley v
General Motors Corp. (1976, ED Wis) 71 FRD 99, 12 BNA FEP Cas 1336, 13 CCH EPD
11304.
Footnote 1. Third CircuitMasco v United Airlines (1978, CA3) 574 F2d 1127, 17 BNA
Seventh CircuitRe Consolidated Pretrial Proceedings in Airline Cases (1978, CA7) 582
Ninth CircuitCollins v United Air Lines, Inc. (1975, CA9) 514 F2d 594, 10 BNA FEP
Cas 728, 9 CCH EPD 10082.
Footnote 2. Shahedeh v Chesapeake & Potomac Tel. Co. (1978) 193 App DC 326, 595
F2d 711, 18 BNA FEP Cas 614, 18 CCH EPD 8683; Equal Employment Opportunity
Com. v United States Fidelity & Guaranty Co. (1976, DC Md) 414 F Supp 227, 15 BNA
Footnote 3. Shahedeh v Chesapeake & Potomac Tel. Co. (1978) 193 App DC 326, 595
1316 Union practices cases
View Entire Section

It has been held to be a continuing violation for a union:
to continually deny a member's repeated monthly requests for field construction
referrals, and to deny the member's request to take a qualifying examination. 5
to deny referrals to a qualified female employee for jobs in favor of male members who
were below her on the union out-of-work list. 6
to continue a trainee in a training program sponsored by the union while denying the
trainee a nondiscriminatory opportunity to join the union, including through the date the
trainee took a mandatory qualifying examination. 7
However, a charge alleging that a union discriminatorily failed to investigate and process
a black employee's grievance did not state a continuing violation, even though the union's
failure was simply a link in a chain of continuous discriminatory conduct persisting
beyond the filing of the EEOC charge by the employee. 8
Footnotes
Footnote 5. Denton v Boilermakers Local 29 (1986, DC Mass) 650 F Supp 1151, 47
Footnote 6. Egger v Local 276, Plumbers & Pipefitters Union (1986, DC Mass) 644 F
Footnote 7. Myree v Local 41, Int'l Brotherhood of Electrical Workers (1992, WD NY)
789 F Supp 597, 58 BNA FEP Cas 1068.
(9). Tolling; Equitable Modification of Charging Period [1317-1329]
1317 Generally
View Entire Section
Certain acts by the employer, 9 the charging party, 10 the EEOC, 11 or a state
deferral agency 12 may serve to suspend ("toll") the running of Title VII's statutory time
periods. These acts do not automatically negate the applicability of the 30-, 180-, or
300-day periods. 13 Rather, they block out a period of time that may not be considered
in determining whether the limitation periods have been exceeded. 14 The EEOC will
not dismiss an untimely Title VII charge that clearly provides a reasonable basis for
modifying the charge filing period. 15
Equitable estoppel precludes a defendant from asserting a statute of limitations against a
plaintiff who has justifiably relied on the defendant's conduct and changed his position so
that he will suffer injury if the defendant is allowed to assert the limitations period. In
order to rely on equitable estoppel, a plaintiff must show actual and reasonable reliance
on the defendant's conduct or representation. A plaintiff was not entitled to rely on
equitable estoppel, even though her employer told her after she had contacted the EEOC
that she would be fired if she filed a charge, because her initial contact with the EEOC
was more than 180 days after the employer failed to promote her. Therefore, the
employer's conduct could not have caused her failure to file a timely charge. 16
However, an employer who threatened adverse employment consequences against the
plaintiff's husband if she filed a charge against the employer, for whom they both
worked, was estopped from asserting the untimeliness of the charge. 17
Observation: In preparing pleadings and briefs, tolling and estoppel should be

viewed as separate and distinct questions. Some courts have analyzed the imputed
knowledge approach in terms of tolling principles and have ruled that the limitations
period is tolled until the plaintiff discovers the discrimination. 18
Footnotes
Footnote 9. 1318-1320.
Footnote 12. 1325.
Footnote 13. As to the various applicable time periods, see 1271 et seq.
Annotation: Time limitations of 706 of Civil Rights Act of 1964, as amended (42
USCS 2000e-5(f)(1)) for bringing civil action by person aggrieved as subject to
tolling because of equitable considerations, 54 ALR Fed 335.
Footnote 16. Fischer v Canteen Corp. (1987, ND Ill) 1987 US Dist LEXIS 5607.
Footnote 17. Lien v Wilson & McIlvaine (1988, ND Ill) 1988 US Dist LEXIS 8813.
Footnote 18. 1290.
1318 Employer's failure to post Title VII notices

View Entire Section
There have been few Title VII cases dealing with tolling caused by an employer's failure
to post notices of coverage. 19 In one case, the court accepted the notion that failure to
post Title VII posters could toll the charge filing period, but found that the facts of the
case did not warrant tolling. 20 The Title VII charge filing period has been tolled both
where an employer failed to post required notices 21 and where the notice posted was
inadequate because it failed to direct employees to the EEOC. 22
In other cases, courts have either declined to rule on the issue, 23 or have found that the
employer's failure to post EEOC notices did not provide a basis for waiver or tolling of
the charge filing period, where the employee had ample opportunity to discover his Title
VII rights. 24 For example, an employer's alleged failure to post EEO notices did not
excuse the need to exhaust administrative remedies when the claimant knew that she had
a sex discrimination claim and what procedures to follow, since she had previously
successfully prosecuted another sex discrimination claim. 25
Footnotes
Footnote 19. See 1949 et seq. as to notice posting and disclosure.
Footnote 21. Lindquist v AT&T Information Systems (1987, ND Ill) 47 BNA FEP Cas
Footnote 22. Llewellyn v Celanese Corp. (1988, WD NC) 693 F Supp 369, 47 BNA FEP
Cas 993, 49 CCH EPD 38667.
Footnote 23. Earnhardt v Puerto Rico (1982, CA1) 691 F2d 69, 30 BNA FEP Cas 65, 30
CCH EPD 33117.
Footnote 24. Cruce v Brazosport Independent School Dist. (1983, CA5) 703 F2d 862, 31
Footnote 25. Di Maggio v U.S. Postal Service (1984, DC Conn) 643 F Supp 1, 40 BNA
FEP Cas 1684.
1319 Employer's misleading of the claimant
View Entire Section

Courts have excused the untimely filing of a Title VII charge, where the employer's
misleading actions resulted in the charging party's lack of sufficient facts on which to
base a claim of unlawful discrimination. Tolling is appropriate only when an employer
interferes with an employee's ability to exercise his rights or there were extraordinary
circumstances preventing him from exercising his rights. These standards were not met
by a college instructor who did not file an EEOC charge until 484 days after being
notified of his termination, since he was represented by an attorney when he learned
information that led him to realize he was a victim of discrimination, and the 300-day
period had yet to expire. Also, he had been prodded by his grievance counselor to file a
charge. 26 However, the charge filing period was tolled, where:
the employer lied to the charging party about the basis for her termination and failed to
advise her of the fact that her position had again been filled. 27
Tolling was also not granted where the employer merely refused to give the employee
any reason for his discharge and there was no finding that the employer had actively
misled the employee. 28
Observation: Some courts take the position that the lack of key facts that would
support a claim of unlawful discrimination is an issue that goes to whether a cause of
action has accrued, and not to whether the charge filing period should be tolled. 29
Footnotes
Footnote 26. Mauro v Board of Higher Education (1986, SD NY) 658 F Supp 322, 44
BNA FEP Cas 739, affd without op (CA2) 819 F2d 1130, 53 BNA FEP Cas 816, cert den
484 US 865, 98 L Ed 2d 139, 108 S Ct 186, 53 BNA FEP Cas 1104.
Footnote 27. Reeb v Economic Opportunity Atlanta, Inc. (1975, CA5) 516 F2d 924, 11
Footnote 28. Earnhardt v Puerto Rico (1982, CA1) 691 F2d 69, 30 BNA FEP Cas 65, 30
CCH EPD 33117.
Footnote 29. 1290.
1320 Employer's promise not to assert untimeliness

View Entire Section
The parties may waive the time limit for filing a charge. Title VII's charge filing period
was tolled, where the employer agreed not to assert a defense of limitations arising out of
the time it spent handling the plaintiff's charge internally. 30 However, an employer's
behavior did not imply a waiver of the statute of limitations period where eight days after
the employee's complaint was served, it specifically raised in its answer the employee's
failure to timely file an EEOC charge, and served a set of discovery materials, some of
which pertained to the limitations defense. 31
Footnotes
Footnote 30. Leake v University of Cincinnati (1979, CA6) 605 F2d 255, 20 BNA FEP
Cas 964, 20 CCH EPD 30249.
Footnote 31. Crandell v New Jersey Transit Bus Operations (1986, DC NJ) 42 BNA FEP
Cas 1888.
1321 Claimant's illness or incapacity

View Entire Section
Although at least one court has held that Title VII's charge filing period is not tolled by a
period of physical and/or mental incapacity, 32 other courts have disagreed. For
example, a court held that in suits between private parties the charge filing period may,
under exceptional circumstances, be tolled for the period of time a mental incapacity
rendered the plaintiff incapable of pursuing any remedy, even though, equitable tolling
was denied in that case. 33 Tolling, however, was appropriate where:
an employee went on medical leave because of depression and anxiety complicated by a
seizure disorder, and the medication she received, together with her illness, impaired her
functioning and ability to accomplish everyday activities. 34
the charging party was committed to a mental institution during the period. 35
Footnotes
Footnote 32. Steward v Holiday Inn (SIC), Inc. (1985, ED La) 609 F Supp 1468, 40 BNA
FEP Cas 191.
Footnote 33. Moody v Bayliner Marine Corp. (1987, ED NC) 664 F Supp 232, 44 BNA
FEP Cas 468.
Footnote 34. Llewellyn v Celanese Corp. (1988, WD NC) 693 F Supp 369, 47 BNA FEP
Cas 993, 49 CCH EPD 38667.
Footnote 35. Crouch v United Press International (1975, SD NY) 10 CCH EPD 10393.
1322 Claimant's employment of counsel

View Entire Section
Tolling of the charge filing period is usually precluded by the employment of counsel
during that period. By employing counsel, the claimant has access to a means of learning
of the filing requirements. The duration of the attorney-client relationship is a factor in
determining the appropriateness of tolling the charge filing period. Thus, courts have
held that tolling is not appropriate where the attorney's employment is continuous and
on-going during the period. 36
Recommendation: Ethical and malpractice considerations may compel an attorney

to advise even a one-visit client about applicable time limitations. Local ethics
committee decisions should be reviewed on this point. Even if there are no ethics
opinions directly on point, strong consideration should be given to advising the client
concerning the time limits for filing a charge so that the risk of a malpractice claim is
reduced.
Footnotes
FEP Cas 712, 15 CCH EPD 8087; Dartt v Shell Oil Co. (1976, CA10) 539 F2d 1256,
13 BNA FEP Cas 12, 12 CCH EPD 11119, affd 434 US 99, 54 L Ed 2d 270, 98 S Ct
600, 16 BNA FEP Cas 146, 15 CCH EPD 7947, reh den 434 US 1042, 54 L Ed 2d
792, 98 S Ct 785, 15 CCH EPD 8019.
1323 EEOC errors

View Entire Section
The time limit for filing EEOC charges may be tolled where the EEOC misleads the
charging party about the nature of his Title VII rights. 37 However, this rule has been
held inapplicable where the charging party was represented by counsel for a substantial
time before the end of the charge-filing period. 38
When a reasonable inference may be drawn that the EEOC was responsible for the
untimely filing of a Title VII charge, equitable modification of the filing period may be
justified, even when it is not clear that the delay was entirely the agency's fault. Thus, a
plaintiff's conformity with the EEOC's letter that gave a mistaken implication, resulting
in a filing date 307 days after the action accrued, did not bar his Title VII suit. 39
However, An employee's failure to file a timely charge was not excused, where the
claimant mentioned to the EEOC employee who drew up his charge that his employer
performed work for another employer, the EEOC employee mistakenly named the other
employer as the respondent in the charge, the claimant did not fully read the charge
before signing it, and the claimant did not discover until one year later that the wrong
employer had been charged. 40
An incomplete oral statement by the EEOC cannot be the basis for equitable tolling. To
permit tolling based on incomplete information provided in a telephone conversation
would create a great potential for abuse. 41
Caution: The EEOC is prone to dismiss a late charge where the charging party
claims that his untimely filing was due to the erroneous advice of a Commission
employee, but the charging party:
cannot identify the EEOC employee involved; or
identifies the employee who denies the allegation, and there is no other basis for
crediting the charging party's allegation. 42
Footnotes
Footnote 37. Chappell v Emco Machine Works Co. (1979, CA5) 601 F2d 1295, 20 BNA
FEP Cas 1059, 20 CCH EPD 30250.
Footnote 38. Keyse v California Texas Oil Corp. (1978, SD NY) 442 F Supp 1257, 16
Footnote 39. Brown v U.S. Steel Corp. (1988, ND Ill) 698 F Supp 1375, 49 BNA FEP
Cas 923, 46 CCH EPD 38070.
Footnote 40. Bryant v Western Electric Co. (1978, CA5) 572 F2d 1087, 18 BNA FEP
Cas 1458, 16 CCH EPD 8302.
Footnote 41. Conaway v Control Data Corp. (1992, CA5) 955 F2d 358, 58 BNA FEP Cas
398, 7 BNA IER Cas 408, 58 CCH EPD 41343, and cert den (US) 7 BNA IER Cas
1376, 59 CCH EPD 41781.
1324 EEOC's deferral of charges

View Entire Section
The EEOC's deferral of a charge to a state or local anti-discrimination agency does not
toll the charge filing period for a federal charge. 43
Footnotes
2486, 23 BNA FEP Cas 1, 23 CCH EPD 30998; Cruz v Board of Education (1982, DC
Colo) 537 F Supp 292, 31 BNA FEP Cas 1157.
1325 Errors by deferral agency

View Entire Section
The mistaken advice of a state human rights commission employee to a potential Title
VII claimant may toll Title VII's charge filing period. Tolling was proper where the state
commission employee told a claimant that she did not have to mark on her charge that
she was bringing a Title VII claim and was authorizing the state agency to accept the
charge on behalf of the EEOC, because she had so advised the commission when she
filed her first charge against the employer. 44 Equitable tolling also was permitted in a
Title VII case in which an error by an FEP agency, which was not known to the charging
party, resulted in the charging party's failure to file with the EEOC within the required
time period. 45
Mistaken information given by a state human rights commission did not toll the charge
filing period where a civil suit was already time barred. 46 Furthermore, the charge
filing period was not tolled, where a charging party relied on representations made by a
state employee that the employee had filed EEOC charges on the charging party's behalf,
even though the state employee was charged with aiding parties and obtaining remedies
for job discrimination and had actually filed EEOC complaints for various persons on
prior occasions. The state employee was not an EEOC employee and the claimant could
have contacted the EEOC about the status of her charge. 47
Footnotes
Footnote 44. Stutz v Depository Trust Co. (1980, SD NY) 497 F Supp 654, 24 BNA FEP
Cas 63, 24 CCH EPD 31386.
Footnote 45. Brown v Crowe (1992, CA6) 963 F2d 895, 58 BNA FEP Cas 1308, 59 CCH
EPD 41560.
Footnote 46. Daniels v Aurora (1987, DC Ill) 1987 US Dist LEXIS 1543.
Footnote 47. Chappell v Emco Machine Works Co. (1979, CA5) 601 F2d 1295, 20 BNA
FEP Cas 1059, 20 CCH EPD 30250.
1326 Pendency of grievance or arbitration proceedings

View Entire Section
Go to Supplement
The charge filing period is not tolled during the pendency of in-house grievance or
arbitration procedures used by the claimant. Title VII remedies are independent of
pre-existing remedies available to the aggrieved employee. 48
The fact that the
employee gave formal notice to his employer that he would file Title VII charges does
not excuse a failure to comply with the time limit. 49 Furthermore, the charge filing
period is not tolled by the employee's use of informal efforts to rectify a perceived
discriminatory act. 50
However, tolling may be granted where the employer and the employee are engaged in
private voluntary settlement discussions and the employer acts in bad faith or deceitfully
lures the plaintiff into those discussions, or in any way causes the plaintiff to miss the
filing deadline. 51
1326 ----Pendency of grievance or arbitration proceedings [SUPPLEMENT]
Practice Aids: Are mandatory, binding arbitration requirements a viable solution for
employers seeking to avoid litigating statutory employment discrimination claims? 59
Albany LR 3:991 (1996).
The impact of employment arbitration agreements on sex discrimination claims: the trend
toward nonjudicial resolution, 18 Emp Rel LJ 479 (1993).
Compulsory arbitration of employment discrimination claims with special reference to
the three A'sAccess, adjudication, and acceptability, 31 Wake For LR 1:231 (1996).
Footnotes
Footnote 48. International Union of Electrical, etc. v Robbins & Myers, Inc. (1976) 429
Footnote 49. Otstott v Verex Assur., Inc. (1980, ND Tex) 481 F Supp 1269, 28 BNA FEP
Cas 1197.
Footnote 50. Sanchez v Southern Pacific Transp. Co. (1980, SD Tex) 29 BNA FEP Cas
746, 23 CCH EPD 31060.
Footnote 51. Fourth CircuitBledsoe v Pilot Life Ins. Co. (1978, MD NC) 473 F Supp
864, 20 BNA FEP Cas 633.
Sixth CircuitGraves v University of Michigan, Institute of Continuing Legal Education
(1982, ED Mich) 553 F Supp 532, 31 BNA FEP Cas 201.
Tenth CircuitDartt v Shell Oil Co. (1976, CA10) 539 F2d 1256, 13 BNA FEP Cas 12,
12 CCH EPD 11119, affd 434 US 99, 54 L Ed 2d 270, 98 S Ct 600, 16 BNA FEP Cas
146, 15 CCH EPD 7947, reh den 434 US 1042, 54 L Ed 2d 792, 98 S Ct 785, 15 CCH
EPD 8019.
The time limit was tolled, where the charging party engaged in private, voluntary
negotiations with her employer on the employer's assurance that no time-bar claim would
be asserted against her if the negotiations failed to produce a settlement satisfactory to the
charging party. Leake v University of Cincinnati (1979, CA6) 605 F2d 255, 20 BNA
1327 Pendency of proceedings in another federal agency

View Entire Section
The pursuit of remedies with the National Labor Relations Board 52 or the Office of
Federal Contract Compliance Programs (OFCCP) 53 will serve to toll Title VII's
charge-filing time limit. However, it has also been held that tolling is not appropriate
where the plaintiffs fail to allege that the OFCCP referred the charge to the EEOC and
the plaintiffs have otherwise failed to satisfy Title VII's requirements. 54
Footnotes
Footnote 52. Guerra v Manchester Terminal Corp. (1972, SD Tex) 350 F Supp 529, 5
BNA FEP Cas 181, 5 CCH EPD 8068, affd in part and revd in part (CA5) 498 F2d 641,
8 BNA FEP Cas 433, 8 CCH EPD 9584, 74 CCH LC 10248, reh den (CA5) 503 F2d
567.
Footnote 53. Egelston v State University College (1976, CA2) 535 F2d 752, 12 BNA
Decisions 6201, 3 BNA FEP Cas 273.
Footnote 54. Kastner v Fermi National Accelerator Laboratory (ED Ill) No. 84 C 2052,
6/28/84.
1328 Pendency of class action

View Entire Section
The pendency of a class action tolls the charge filing period as to all putative class
members. In order for the rule to apply, the individual's claims must be substantially
similar to or encompassed by those alleged in the class complaint. For example, where a
class complaint alleged racial discrimination in promotions, hiring, discharge, and wages,
the allegations were sufficiently similar to a plaintiff's claim that the defendant had
denied him the same conditions and privileges of employment as other employees and
had terminated him because he was black. In addition, the time frame encompassed by
the class complaint was similar to that alleged in the plaintiff's complaint. Hence, the
time within which the plaintiff was required to file his charge was tolled until the class
action court ruled on class certification. 55
Footnotes
Footnote 55. Sharpe v American Express Co. (1988, SD NY)689 F Supp 294, 49 BNA
FEP Cas 282.
1329 Claimant's personal circumstances

View Entire Section
A claimant's own ignorance of the statute of limitations does not justify equitable tolling,
and an employer is not obligated to inform a prospective claimant of the existence of the
statute of limitations or of the EEOC. Furthermore, tolling is not appropriate merely
because a claimant is voluntarily absent from the country. 56
Footnotes
Footnote 56. Keyhani v Chance (1988, ED Pa) 1988 US Dist LEXIS 3102.
c. Investigations [1330-1349]
(1). In General [1330-1342]
1330 Broad scope of investigatory authority

View Entire Section
Title VII requires the EEOC to investigate charges. 57 In line with the general liberal
judicial attitude toward the remedial objectives of Title VII, the investigatory powers of
the EEOC have been construed quite broadly. 58

The scope of the EEOC's
investigatory powers is as broad as that of the National Labor Relations Board. 59
The EEOC's investigation of a Commissioner charge is not governed by the
reasonableness requirement of the Fourth Amendment to the U.S. Constitution, since the
investigation is not a search into an area where society recognizes an expectation of
privacy. 60
Footnotes
Footnote 58. Motorola, Inc. v McLain (1973, CA7) 484 F2d 1339, 6 BNA FEP Cas 469,
6 CCH EPD 8825, cert den 416 US 936, 40 L Ed 2d 287, 94 S Ct 1935, 7 BNA FEP
Cas 816, 7 CCH EPD 9284.
Law Reviews: Fretz, Using the EEOC Investigative File in Employment
Discrimination Cases. 26 Clearinghouse Rev. 422 (1992).
Graniteville Co. (Sibley Div.) v EEOC (1971, CA4) 438 F2d 32, 3 BNA FEP Cas 155, 3
CCH EPD 8109.
Footnote 60. EEOC v Peterson, Howell & Heather (1989, DC Md) 702 F Supp 1213, 48
1331 Investigation of violations extraneous to charge

View Entire Section
The EEOC's statutory powers allow it to investigate any employment practice "like or
related to" the practice alleged in the charge or that "grows out" of those allegations. 61
The EEOC instructs its investigators that when they conduct an onsite investigation they
should note (in a separate report) other potential violations of Title VII and other federal
laws, so that these matters may be investigated later by the appropriate agency. 62
Observation: Employers are not required to furnish information to an EEOC

investigator unless it is relevant or related to the charge at hand. Also, employers are
not under any obligation to supply the EEOC with information that pertains only to
potential violations of laws for which the EEOC lacks enforcement authority.
A "like or related" charge against an employment agency under Title VII may be
uncovered as a result of a charge filed against an employer or union. Therefore, EEOC
investigators will gather as much information as possible about the screening and referral
practices of employment agencies by routinely asking charging parties who are filing
charges against employers or unions whether they obtained or sought positions through
any employment agencies. 63
Footnotes
Footnote 61. King v Georgia Power Co. (1968, ND Ga) 295 F Supp 943, 1 BNA FEP Cas
1332 Focus of investigations under different processing methods

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The EEOC uses several different approaches to its investigations. The Rapid Charge
Processing approach, which is primarily used in processing new individual charges
stresses a narrow inquiry into the facts, 64 related directly to a particular aggrieved
party's case. 65
The Systemic Program involves a wide ranging pursuit of evidence that may show
"systematic discrimination" 66 against a broad class of employees who may work for
several different employers in the same trade or industry. 67
A third approach, Extended Charge Processing 68 is employed for cases that are not set
for Rapid Processing. Extended Charge Processing is preferred where the EEOC
concludes that completion of the investigation will require continuing legal assistance
and substantial EEOC resources. 69
The EEOC recognizes that evidence of class discrimination is often probative as to the
treatment accorded a particular charging party, and that individual charges may often be
resolved by drawing reasonable inferences from the totality of the circumstances. Thus if
evidence reflecting systemic or class discrimination exists, it will be gathered by the
EEOC to support the individual charging party's allegations. 70
Observation: Because of the difference in the focus of the investigation there will be
corresponding differences in the length of time it will take the EEOC to normally
process a charge in each of the systems discussed. Charges going into Rapid
Processing will be faster than those going into Systemic Processing.
Recommendation: Respondents who may have to wait for a significant period of

time before an investigation is commenced by the EEOC or an FEP agency should not
only preserve records relevant to the charge, but may also benefit by taking affidavits
from management personnel and others (while events are fresher in memory)
concerning the events described in the allegations. If an in-house investigation of the
situation results in a conclusion that a violation of Title VII has occurred, it may be
financially and legally sound to attempt to negotiate a settlement with the charging
party or his representative before damages and attorney fees rise due to the passage of
time and continued processing of the case. If the charging party is satisfied with this
resolution, the EEOC and FEP agency will be likely to accept a written withdrawal 71
by the charging party.
Footnotes
Footnote 64. 1251.
Footnote 66. 1253.
Footnote 68. 1252.
Footnote 70. Statement of Eleanor Holmes Norton, Equal Employment Opportunity
Commission, July 27, 1977, 42 Fed. Reg. 42034.
Footnote 71. 1268.
1333 Factfinding conferences

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The EEOC may, as part of its investigation, require a factfinding conference with the
parties in order to define the issues, determine undisputed facts, and determine whether
the charge is amenable to settlement. 72
Normally, a fact-finding conference is held only after the investigator has requested,
obtained, and evaluated written evidence from the parties, and concluded that a
conference might be of value. 73
Nevertheless, fact-finding conferences usually are not held when:
(1) the alleged discrimination arises from an acknowledged or documented policy; 74
(2) the charges are being processed under local or national settlement agreements or
consent decrees; 75
(3) the charges have been initiated by a Commissioner; 76

(4) the charges have been filed by a third party on behalf of an individual who requests
that his identity remain confidential; 77
(5) the charges allege violations of the ADEA or the EPA. 78
The Commission prepares for such conferences by the following procedure:
(1) The investigator conducts a detailed interview with the charging party at the time the
charge is filed. 79
(2) The respondent is sent an information request tailored to discover information
concerning the charge filed. 80
(3) A face-to-face meeting is set, as rapidly as possible, between the charging party and
certain representatives of the respondent, including those persons who were directly
involved in the alleged discriminatory practices and a person who is authorized to
negotiate settlement on behalf of the respondent. 81
Any party to the conference or the EEOC's representative may suggest that the
conference recess at any time so that a settlement may be attempted off the record. 82 If
counsel for either party is present at the conference, such counsel will be limited to an
advisory role and will not be permitted to speak on behalf of a party or to cross-examine.
83
Recommendation: While no one but the investigator will normally be allowed to ask
questions during a factfinding conference, the parties may "suggest" that the
investigator ask certain questions, and should do so if pertinent information has not
been disclosed prior to the termination of the conference.
The Commission may dismiss the complaint of a charging party who fails to appear at a
factfinding conference, or who fails to cooperate in the Commission's attempts to set up
such a conference. In addition, the EEOC may issue a subpoena 84 to a respondent who
refuses to appear at a conference requiring the respondent to appear and testify
concerning disputed factual matters. 85
Observation: If the respondent, for whatever reason, does not wish to attend a
factfinding conference, the EEOC's normal procedure will be to send the case through
the Extended Charge Processing System. 86
Footnotes
Footnote 72. 29 CFR 1601.15(c).
Footnote 74. EEOC Compliance Manual 14.9(c)(1).

Footnote 82. EEOC Compliance Maual 14.11(e).
Footnote 85. EEOC Compliance Manual 14.10(e)(3).
Footnote 86. 1252.
1334 Requesting a statement from charging party

View Entire Section
The EEOC may require a person claiming to be aggrieved to provide a statement which
includes: (1) a recitation of each specific harm that the person has suffered and the date
on which it occurred; (2) for each harm, a statement specifying the act, policy, or practice
that is alleged to be unlawful; and (3) for each act, policy, or practice alleged to have
harmed the person claiming to be aggrieved, a statement of the facts that lead that person
to believe that the act, policy, or practice was in fact discriminatory. 87
Footnotes
Footnote 87. 29 CFR 1601.15(b).
1335 Initial interviews with charging party and witnesses

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The EEOC considers interviews to be crucial in most investigations because they provide
the opportunity to acquire employment records and other documentary evidence, and
because they allow investigators to evaluate the credibility of witnesses. 88
The privacy of witnesses is to be protected at all times. Thus, witnesses may choose to
file a confidential affidavit, 89 or arrange to have the interview conducted at a neutral
location. 90
The respondent may have counsel present during his own interview. Additionally,
attorneys may be present during interviews of management personnel, if the individual to
be interviewed has not chosen to file a confidential affidavit and his own employment
circumstances are not at issue. 91
If it is impossible or impractical to interview a witness in person, the interview may be
conducted by telephone or mail. 92
At the interview itself, the EEOC investigator will ask a few general questions designed
to allow the witness to develop information in his own way. 93 After the whole story (or
a large part of it) has been developed through the charging party's or witness' narrative,
the investigator will conduct a cross-examination in which the witness' initial narrative is
reconstructed in question-and-answer form. 94
At the completion of the interview with the charging party, the charging party's statement
will be recorded on an affidavit, which the charging party will be asked to read, correct,
and sign. 95
Footnotes
1336 Initial interviews with respondent and witnesses

View Entire Section

Respondent representatives are interviewed for the purposes of examining the overall
employment process, determining the specific employment practices for certain jobs,
discussing aspects of the employment process affecting individual past or present
employees, and verifying underlying facts pertaining to defenses raised during the
investigation. 96
The respondent may have counsel present during interviews of all salaried employees. 97
However, if a respondent demands that an attorney be present when hourly employees
are interviewed, the EEOC investigators are instructed to make arrangements to talk with
the employees at another time, away from the respondent's premises. 98
Footnotes
1337 Conducting an on-site investigation; "plant tour"

View Entire Section
The EEOC has a policy that an on-site investigation will not normally be conducted as
part of its investigation of charges in the Rapid Charge Processing System. 99 However,
its policy is to conduct an on-site investigation whenever possible if the charge is
processed in Extended Investigation. 1
Soon after an EEOC investigation of a charge in the Extended Investigation 2 or
Systemic Programs 3 begins, the investigator will endeavor to make an on-site
investigation or "plant tour." This will probably be done prior to reviewing the
respondent's records and prior to interviewing many of the respondent's witnesses. 4
During the "plant tour," the investigator will pay particular attention to the charging
party's work site to acquire a general understanding of the charging party's work
environment and specific information relating to the allegations and how the jobs under
review fit into the overall flow of work. 5 The investigator will also be interested in
noting other potential violations of Title VII or other federal laws, which will be reported
to the district office. 6
On-site investigations are scheduled so as to cause the least amount of disruption to the
employer's business as possible. Investigators are instructed to agree to a delay in the

investigation only if the respondent has a compelling business need, since delays may
impinge on the quality of the investigation. 7 The EEOC will seek to compel an on-site
investigation through its subpoena power 8 where a respondent refuses to permit an
investigation voluntarily, although subpoenas are ordinarily sought only after normal
investigative methods have been attempted. 9
Recommendation: Since it is clear that "plant tours" may be arranged for no better
reason than as a "fishing expedition" into other possible violations of Title VII or other
federal laws, the employer should require the investigator to justify the relevance of
such a tour in the context of the instant charge (especially a charge that is restricted to
individual harm during a single occurrence) before assenting to such a tour.
Documentary information may be substituted for a "plant tour" in all relevant respects,
in many instances.
Footnotes
Footnote 1. EEOC Resolution Modifying Rapid Charge Processing System (12/6/83).
Footnote 2. 1252.
Footnote 3. 1253.
Footnote 8. 1343-1349.
1338 Requesting relevant documents from respondent

View Entire Section
After the interviews of a respondent's witnesses have been completed and a "plant tour"
has been taken or been determined unnecessary, 10 the investigator will request
particular records from the respondent. 11
The types of records which a respondent may be expected to provide include payroll
records, seniority lists, job descriptions, collective bargaining agreements, personnel
records, and interoffice communications pertaining to company employment practices
and policies. 12
If the company being investigated has a written affirmative action program in compliance
with Executive Order 11246, or voluntarily created, records which deal with that program
may also be sought by the EEOC, and they are usually relevant to most systemic charges
of discrimination. 13
The EEOC investigator will request that relevant rosters, payrolls, or other lists of
employees or applicants be marked to indicate the ethnic or sex identity of the persons
listed if such markings have not already been made. Where the records already contain
such markings, the EEOC considers this an indication that the respondent's judgment
may have been affected by ethnic or sex consideration in the making of personnel
decisions. 14
Footnotes
Footnote 10. 1337.
1339 Obtaining position statements from the parties

View Entire Section
As part of each investigation, the charging party may be required to submit a statement of
his position, including evidence with respect to the allegations. 15 Also, the EEOC will
accept, but may not require in every case, a position statement submitted by the
respondent. 16
Recommendation: Charging parties and respondents alike should submit position

statements which include all of the pertinent facts and arguments with respect to the
merits of the allegations, prior to the close of the investigation. To do otherwise is to
assume the infallibility of the investigator, possibly to to a party's detriment.
Footnotes
Footnote 15. 29 CFR 1601.15(b).

Footnote 16. 29 CFR 1601.15(a).
1340 Predetermination interviews of the parties

View Entire Section
The final step in an EEOC investigation is the predetermination interview, conducted
with both parties, to insure that all information necessary to the investigation has been
obtained. 17 The interview with the respondent-employer normally may be conducted
over the telephone, at the worksite, or at the EEOC office. 18
In this interview the investigator should:
(1) inform the respondent of the investigation's scope;
(2) summarize the evidence on which a determination will be made;
(3) offer the respondent the opportunity to provide additional information;
(4) inform the respondent that an official determination will be issued by the office
Director; and
(5) if the respondent makes a settlement offer, inform the respondent that a written
proposal may be submitted to the Director for review and consideration. 19
The predetermination interview with the charging party may be conducted by phone or in
person. At this interview the investigator should:
(1) summarize the evidence on which the determination will be made;
(2) offer the charging party the opportunity to submit additional evidence;
(3) inform the charging party of his rights to private suit;
(4) inform the charging party that if a "no cause" determination is made, a right-to-sue
notice will be included with the letter of determination. 20
If the information obtained at this interview indicates a need for further investigation,
new predetermination interviews will be conducted at the conclusion of the supplemental
investigation. 21
Footnotes

Footnote 19. EEOC Compliance Manual 27.2(a)-(f).
1341 Predetermination settlements

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Before the EEOC issues a determination letter, the EEOC may encourage the parties to
settle the charge on terms that are mutually agreeable. District, Area, or Local Directors,
the Program Director, Director of Systemic Programs, or Regional Program Directors of
the Office of Program Operations, as well as the directors of the offices of Field Services
and Systemic Programs (or their designees) are authorized to sign predetermination
settlements on behalf of the Commission, which promise not to process the charge any
further. 22
Observation: Settlements made after a finding of a violation (reasonable cause

determinations) 23 are called conciliation agreements 24 and unlike
predetermination settlements, must satisfy the Commission that full compliance and
redress have been afforded.
Except for charges in the Systemic Program, 25 the Commission finds predetermination
settlements inappropriate when an investigation is completed and there is sufficient
evidence to make a reasonable cause determination 26 on the merits of a charge. 27
Observation: In practice, this policy is only effective for the relatively short time
between the conclusion of an investigation and the issuance of a determination
concerning reasonable cause. However, the policy does not absolutely prohibit
predetermination settlements during that time period, and to refuse to allow such
agreements, if they are mutually satisfactory to charging parties and respondents,
would be contrary to the EEOC's statutory duty to foster voluntary compliance with
Title VII.
A predetermination settlement does not affect the processing of any other charge, even if
it contains allegations related to those involved in the settlement. 28
Alternatively, the EEOC may facilitate a settlement by permitting withdrawal of the
charge. 29 Such a withdrawal will not be permitted, however, when the EEOC finds
that the charging party has been coerced into requesting withdrawal. 30
Observation: Charging parties should note that if the agreement calls for action by
the respondent which is capable of subjective interpretation, the EEOC's standard form
agreement does not require the Commission to continue to process the charge if they
are satisfied with the compliance of respondent, even if the charging party is not.
Caution: A withdrawal of an EEOC charge will not necessarily constitute a

withdrawal of identical complaints pending before state and local FEP agencies. If this
is the intention of the parties, it should be spelled out in detail in the EEOC withdrawal
(or executed simultaneously on separate documents) and a copy should be sent to those
agencies.
When a predetermination settlement is reached, the EEOC will agree to discontinue
processing of the charge in consideration for the promises made by the parties. 31
Although enforceable in court, there is some disagreement as to whether a private party
can go directly to court to enforce a predetermination settlement agreement without
having the EEOC further address the merits of the charge. Under one view, such
settlements may be enforced in court by the EEOC under principles of contract law. 32
In keeping with this view, the Eleventh Circuit did not require a private party to seek
administrative action by the EEOC before instituting a Title VII suit to enforce the terms
of a conciliation agreement negotiated with the OFCCP in an Executive Order 11246
proceeding. 33 The plaintiff had signed releases not to bring a Title VII suit that were
viewed as the legal equivalent of a conciliation agreement enforceable by the EEOC.
Furthermore, the court allowed the enforcement action regardless of the failure of the
EEOC to participate in the suit. 34 Another court found it had jurisdiction over suits to
enforce predetermination agreements, whether they were brought by the EEOC or by
private plaintiffs. 35 However, the Sixth Circuit held that a contract claim brought
without EEOC's participation is premature unless the plaintiff has met the administrative
processing requirements imposed by the statute before bringing a Title VII action in
federal court. 36
Observation: Parsons conflicts with the Fourth Circuit's reasoning in Henry Beck
Co. insofar as the latter circuit concluded that the EEOC could go directly to court to
enforce a predetermination settlement agreement without further addressing the merits
of a Title VII charge. The unstated distinction between the two cases is that the
plaintiff in Parsons proceeded to court without the complicity of the EEOC. Whether
the Sixth Circuit would allow the Commission to enforce the agreement at issue in
Parsons without taking further administrative action remains an open question.
Recommendation: Despite the holdings in Eatmon and Sherman, plaintiffs who have
identified a breach in a settlement agreement negotiated with an employer and the
EEOC in resolution of a Title VII charge should attempt to get the EEOC to seek
enforcement of the agreement in federal court before bringing a contract suit on their
own. Courts may be reluctant to entertain alleged breaches of such agreements unless
all parties to the agreement (including the EEOC) are represented.
Footnotes
Footnote 22. 29 CFR 1601.20(a).

Footnote 24. 1362.
Footnote 25. 1253.
Footnote 27. EEOC Resolution Modifying Rapid Charge Processing System (12/6/83).
Footnote 28. 29 CFR 1601.20(a).
Footnote 29. 29 CFR 1601.20(b).
Footnote 31. 49 Fed. Reg. 13873 (4/9/84).
Footnote 32. EEOC v Henry Beck Co. (1984, CA4) 729 F2d 301, 34 BNA FEP Cas 373,
33 CCH EPD 34208.
Footnote 34. Eatmon v Bristol Steel & Iron Works, Inc. (1985, CA11) 769 F2d 1503, 38
Footnote 35. Sherman v Standard Rate Data Service, Inc. (1989, ND Ill) 709 F Supp
Footnote 36. Parsons v Yellow Freight System, Inc. (1984, CA6) 741 F2d 871, 35 BNA
FEP Cas 1121, 35 CCH EPD 34618.
1342 Legal unit involvement in investigations

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An attorney may be assigned to assist in the development of a case for litigation when the
available evidence indicates some likelihood that a violation has occurred. Cases suitable
for attorney assignment include:
non-Commission decision precedent cases.
state or local government cases. 37
Commissioner charges. 38
recurring violations. 39
retaliation cases. 40
Footnotes
(2). Subpoenas [1343-1349]
1343 Authority to issue

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Go to Supplement
Title VII gives the EEOC and its authorized agents the same investigative powers as are
enjoyed by the National Labor Relations Board. 41 Under the EEOC's regulations,
commissioners, directors of district and area Offices, and as the directors of the offices of
Field Services and Systemic Programs, and any representative designated by the
Commission, have the authority to issue subpoenas. 42
Subpoenas are not automatically issued by the EEOC upon the request of a person filing
a charge, a person on whose behalf a charge was filed, or a respondent. 43 The EEOC
will issue subpoenas as a last resort, preferring to use less costly and time-consuming,
voluntary methods to obtain information, whenever possible. 44
The Commission's procedure for issuing subpoenas has been held to be constitutionally
valid despite the fact that it does not provide for review of a decision to issue a subpoena.
45
1343 ----Authority to issue [SUPPLEMENT]
Case authorities:
State confidentiality law which prohibits county from disclosing peace officer's personnel
records and information obtained from those records is preempted by EEOC's mandates;
thus, records are subject to EEOC's administrative subpoenas. EEOC v County of San
Benito (1993, ND Cal) 818 F Supp 289, 93 Daily Journal DAR 5689, 61 BNA FEP Cas
946.
Footnotes
Footnote 42. 29 CFR 1601.16(a).
Footnote 43. 29 CFR 1601.16(a).
1344 Types of evidence requested by subpoena

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The EEOC may issue a subpoena to require the attendance and testimony of witnesses,
46 the production of evidence, 47 and access to evidence for purposes of examination
and copying. 48
Footnotes
Footnote 46. 29 CFR 1601.16(a)(i).
Footnote 47. 29 CFR 1601.16(a)(ii).
Footnote 48. 29 CFR 1601.16(a)(iii).
1345 Proper form and service

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The subpoena must state the name and address of its issuer, and will identify the person
or evidence subpoenaed, and the person to whom, and the place, day, and time at which,
the subpoena is returnable, 49 and the date and time when access is requested.
The subpoena will be served in person or by registered mail. Where corporate service is
employed, the subpoena will be served on an appropriate high-ranking corporate official.

Subpoenas will not be served on a private attorney representing a respondent unless such
an arrangement has been made prior to issuance of the subpoena. Even if service is made
on a private attorney, the subpoena will still be addressed to the officer or official having
custody or control over the desired documents or records or, where appropriate, to the
corporation itself. 50
Footnotes
Footnote 49. 29 CFR 1601.16(a).
1346 Rights and responsibilities of persons under subpoena

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Oral testimony required by subpoena is usually taken by deposition. 51 The place at
which subpoenaed testimony is taken must be within the state within which the witness
resides, transacts business, or is served with the demand. 52
All testimony under subpoena is given under oath and is recorded by a reporter. 53 If the
individual being deposed has an attorney, the attorney is entitled to attend the deposition
and advise his client. However, the attorney for the respondent is not entitled to be
present at the deposition of any person who is neither an official nor employee of the
respondent. 54
After the court reporter has transcribed the testimony, the record of the testimony
(deposition) will be made available to the witness for his examination and signature. 55
If the witness does not waive the signature and fails or refuses to sign or return the
transcript to the EEOC within 30 days of receipt, the EEOC may consider the right to
sign to have been waived by the witness. 56
A witness may make any changes in the substance of a deposition before signing it. If
such changes are made, a statement of the reasons for them must appear as an addendum
to the deposition, and the EEOC may secure an affidavit from the reporter and presiding
officer that the testimony as originally transcribed was accurate. In such circumstances,
the Commission may draw appropriate negative inferences concerning the veracity and
accuracy of the testimony. 57
The EEOC has attempted to use compulsory interrogatories as a means to elicit
information from an employer, serving the interrogatories on the employer and telling
him that failure to answer within 14 days would constitute an admission that the act
complained of was discriminatory, but this practice has been disapproved by a court,
holding that the EEOC cannot use compulsory interrogatories (written questions) because
they are not authorized by Title VII. 58
A person who submits data or evidence to the Commission may, upon payment of costs,
obtain a copy of the transcript or information, unless for good cause, he is limited to an
inspection of the official transcript or information. 59
Footnotes
Footnote 52. 29 CFR 1601.17(a).
Footnote 58. EEOC v Western Electric Co. (1974, DC Md) 382 F Supp 787, 8 BNA FEP
1347 Reimbursement of expenses

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Witnesses who are summoned to testify or whose depositions are taken will be advised
that they are entitled to witness fees and mileage charges if they submit an appropriate
claim. 60 The fees paid are the same as those which are paid to witnesses in United
States courts. 61
Under FRCP 37(a), which provides for court actions to obtain orders compelling answers
to questions, if the motion to compel is granted and if the court finds that the refusal was
without substantial justification, the court will require the witness or his attorney to pay
to the examining party the amount of the reasonable expenses incurred in obtaining the
order, including reasonable attorneys' fees. On the other hand, if the motion is denied
and if the court finds that the motion was made without substantial justification, the court
will require a similar payment to the refusing party.
The EEOC has held that there is no statutory authority for reimbursement of the expenses
of an employer in complying with a subpoena. 62
Footnotes
Footnote 60. 42 USCS 2000e-4(g)(2); 29 CFR 1601.17.
Footnote 61. 42 USCS 2000e-4(g)(2); 29 CFR 1601.17(b).
Footnote 62. EEOC Decision No. 76-S-23 (1975), CCH EEOC Decisions 6514.
1348 Filing a petition to revoke or modify a subpoena

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Any person served with a subpoena and who does not intend to comply must, within five
days after the date of service of the subpoena, petition to revoke or modify the subpoena
to the EEOC's General Counsel, and must also serve a copy upon the person who issued
the subpoena. 63
The five-day time limit excludes Saturdays, Sundays, and legal holidays. For purposes of
this limit, the date of service is the date a Commission employee personally served the
subpoena or the date of delivery as shown on the return receipt if service was by certified
mail. Issuing officials are not authorized to grant extensions of time by waiving the
five-day filing limit. 64
Some courts have held that an employer who did not petition the EEOC to revoke or
modify a subpoena, within the five-day time limit, had failed to exhaust its administrative
remedies, and thus could only assert constitutional grounds in defense of its
noncompliance with the subpoena, in EEOC's subsequent enforcement action. 65
Observation: The defendant employers in the above cases made no effort at all to
petition the EEOC for relief from the subpoena. It is not certain that the court would
have reached the same result had the petitions been a few days late.
The petition to revoke or modify the subpoena must state each ground upon which the
petitioner relies. 66 Among the grounds on which objections to EEOC subpoenas may
be made are: (1) that the evidence demanded is irrelevant to the charge; (2) that the
material sought is time barred; (3) that there were irregularities in the charge or notice
procedures; (4) that the charge or subpoena lacked specificity; (5) that compliance would
be burdensome; (6) that the information or material sought is unavailable. Objections on
the grounds that: (1) the respondent has been cleared of unlawful employment practice
charges by a state agency; (2) the EEOC demand for evidence amounts to an
unconstitutional search or seizure; (3) there has been misconduct of a charging party, or;
(4) the doctrine of laches bars enforcement of the subpoena, have generally met with
failure. These objections are of the same type as those used when the EEOC brings an
enforcement action in court, and they are more fully discussed at in connection with the
discussion of court proceedings. 67

Along with the petition, the subpoenaed person should include a certificate of service
showing the date on which the petition has been mailed to the issuing officer, 68 and a
copy of the subpoena itself." 69
After a subpoenaed person petitions to revoke or modify a subpoena, the General
Counsel makes a determination upon the petition, stating his reasons, and sends it to the
Commission, which makes a final determination on the petition. 70
A commissioner who has issued a subpoena must refrain from reviewing any petition to
modify or revoke that subpoena. 71
The EEOC serves a copy of the final determination of the petition upon the petitioner. 72
If the subpoena has been issued by the director of a model office, or the director of
Systemic Programs, the same procedure applies, with the exception that such person is
substituted in place of the General Counsel. 73
The only way in which an EEOC subpoena can become the subject of a court action is
when and if the EEOC itself brings an enforcement action. 74 Courts do not have
jurisdiction to revoke or modify an administrative subpoena upon application by the
subpoenaed person. 75
1348 ----Filing a petition to revoke or modify a subpoena [SUPPLEMENT]
Case authorities:
Recipients of subpoenas issued by EEOC who do not intend to comply must petition
EEOC to revoke or modify subpoena; party's failure to proceed in accord with
administrative appeal procedure prevents party from challenging subpoena in court,
except on constitutional grounds. EEOC v Turner (1994, DC NM) 66 BNA FEP Cas
1203.
Footnotes
Footnote 63. 29 CFR 1601.16(b).
Forms: PetitionTo revoke or modify EEOC subpoena [42 USCS 2000e-9; 29 CFR
1601.16(b)]. 12 Federal Procedural Forms, L Ed, Job Discrimination 45:37.
Footnote 65. EEOC v Cuzzens of Georgia, Inc. (1979, CA5) 608 F2d 1062, 21 BNA FEP
Cas 803, 21 CCH EPD 30539; EEOC v Roadway Express, Inc. (1983, ND Ind) 569 F
Footnote 66. 29 CFR 1601.16(b).

Footnote 69. 29 CFR 1601.16(b).
Footnote 70. 28 CFR 1601.16(b).
Footnote 71. 29 CFR 1601.16(b).
Footnote 72. 29 CFR 1601.16(b).
Footnote 73. 29 CFR 1601.16(b).
Footnote 74. 1349.
Footnote 75. Foreman v Thalmayer (1975, ND Tex) 393 F Supp 1396, 10 BNA FEP Cas
1030, 10 CCH EPD 10282.
1349 EEOC's enforcement of subpoenas

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Go to Supplement
If a person fails to comply with a subpoena without petitioning the EEOC for revocation
or modification of the subpoena 76 or after the EEOC has considered such a petition and
upheld all or part of the subpoena, the EEOC may compel the subpoena's enforcement in
court. 77
If any person fails to comply with a subpoena, the EEOC may utilize the procedures of
11(2) of the National Labor Relations Act (29 USCS 161(2)) to compel enforcement of
the subpoena. 78 These are full judicial proceedings, to which the Federal Rules of
Civil Procedure apply, if not overridden by a statutory provision. 79
The requirement in the Federal Rules of Civil Procedure that an action be instituted by a
complaint is inapplicable to actions to enforce EEOC subpoenas, because 29 USCS
161(2) provides that enforcement is begun upon application by the agency to the court.
80
The EEOC also may bring an action seeking enforcement of an administrative subpoena
against a state or local government agency, despite the provision of 42 USCS
2000e-5(f)(1) that Title VII civil actions against federal, state, and local governments
shall be brought by the U.S. Attorney General. 81 The transfer of power under 42 USCS
2000e-6 from the EEOC to the U.S. Attorney General did not eliminate the EEOC's
authority to investigate governmental entities under 42 USCS 2000e-5, including its
ability to issue subpoenas and seek their enforcement. 82 Thus, a state government
respondent could not refuse to respond to an EEOC subpoena on the grounds that no
subpoena enforcement proceeding had been brought by the U.S. Attorney General. 83
1349 ----EEOC's enforcement of subpoenas [SUPPLEMENT]

Case authorities:
EEOC was not entitled to award of costs and attorney's fees in action brought to enforce
administrative subpoenas, since county's refusal to comply with subpoenas was not based
on attempt to delay or frustrate EEOC's investigation, but rather was based on state
confidentiality law which prohibits county from disclosing peace officer's personnel
records and information obtained from those records. EEOC v County of San Benito
(1993, ND Cal) 818 F Supp 289, 93 Daily Journal DAR 5689, 61 BNA FEP Cas 946.
Footnotes
Footnote 76. 1348.
Footnote 77. 29 CFR 1601.16(d).
Footnote 78. 42 USCS 2000e-9; 29 CFR 1601.16(c).
Footnote 79. FRCP 81(a)(3); EEOC v Bay Shipbuilding Co. (CA7, 1981) 668 F2d 304,
Footnote 80. EEOC v Bay Shipbuilding Corp. (CA7, 1981) 668 F2d 304, 27 BNA FEP
Cas 1377, 27 CCH EPD 32314.
Footnote 81. EEOC v Illinois State Tollway Authority (1986, CA7) 800 F2d 656, 41
Footnote 82. EEOC v The Board of Public Education for the City of Savannah and the
County of Chatham (1986, SD Ga) 643 F Supp 134, 40 BNA FEP Cas 1654, 40 CCH
EPD 36413.
Footnote 83. EEOC v Missouri, Dept. of Social Services, Div. of Aging (1986, ED Mo)
41 CCH EPD 36465.
d. Reasonable Cause Determinations [1350-1361]
(1). In General [1350-1356]
1350 Generally; definitions

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The result of the EEOC's deliberations on the merits of a charge is called a
"determination." Thus, there are two possible determinations for any given charge. A
"no cause" determination means that the EEOC has concluded that discrimination did not
occur, and will dismiss the charge and notify the parties of its action. 84
A "cause" decision in most circumstances means that the EEOC finds the charge to have
sufficient merit to warrant litigation if it is not conciliated. 85
Title VII requires the EEOC, upon reaching a "cause" decision, to endeavor to eliminate
the alleged unlawful employment practice, first by informal methods of conciliation and
persuasion, 86 and if that fails, by filing suit in federal court, at its discretion. 87
Observation: The EEOC calls its reasonable-cause findings by two different names,
depending on who makes them. If a finding is made at the local level, the Commission
calls it a "determination." If it is made at headquarters, however, the Commission calls
it a "decision." The terms "determination" and "decision" may be used interchangeably
throughout this text because their effect on charging parties and respondents is the
same.
Footnotes
1351 When determination is made

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After the EEOC investigates a charge, it should, so far as practicable, not later than 120
days from the filing of the charge, make a determination whether it believes the charge is
true. 88 The 120-day period suggested by Title VII is not mandatory, has no
jurisdictional ramifications, and failure by the EEOC to comply with the provision does
not constitute an actionable wrong. 89
Observation: The actual time it will take the EEOC to reach a determination on a
charge depends on numerous factors such as: (1) the legal or factual complexity of the
allegations; (2) the geography of the parties in relation to the district office; (3) the
resources in comparison to the caseload at that office; (4) the cooperation of both
parties; (5) the skill of the investigators involved in the charge; (6) the particular
method of processing chosen by the EEOC; (7) the willingness of the parties to settle
prior to determination; and (8) whether the charge must or will be processed first by a
state or local FEP agency, among other factors.
Footnotes
Footnote 89. Stewart v EEOC (1979, CA7) 611 F2d 679, 21 BNA FEP Cas 800, 21 CCH
EPD 30535; Kelly v EEOC (1979, DC Md) 468 F Supp 417, 19 BNA FEP Cas 700, 20
CCH EPD 30061.
1352 Significance of determination

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The significance of a determination is that, if a "no cause" decision is reached, EEOC
must dismiss the charge, 90 while a "cause" decision means the EEOC must undertake
its statutory obligation of attempting to conciliate the dispute. 91
It is important to understand that reasonable-cause decisions have no significance outside
of EEOC processing. The failure of a charging party to convince EEOC that he or she
was discriminated against does not bar that charging party from going to district court
and attempting to gain relief there. 92 Furthermore, once the "aggrieved" party goes to
court, the EEOC's "cause" decisions are without legally binding effect. 93
The charging party may not seek review of a "cause" determination by the EEOC under
the Administrative Procedure Act, since the EEOC's action is not a final decision which
fixes liability. 94
A "no reasonable cause" determination by the EEOC does not automatically qualify as a
"written interpretation or opinion of the Commission" within the meaning of the Civil
Rights Act of 1964. 95
Footnotes
Footnote 92. 2173.
Footnote 93. Grimm v Westinghouse Electric Corp. (1969, ND Cal) 300 F Supp 984, 2
BNA FEP Cas 156, 2 CCH EPD 10086, 61 CCH LC 9322, affd (CA9) 4 BNA FEP
Cas 1124, 4 CCH EPD 7914; Ste. Marie v Eastern R. Asso. (1976, SD NY) 72 FRD
Footnote 94. Georator Corp v EEOC (1979, CA4) 592 F2d 765, 19 BNA FEP Cas 70, 19
CCH EPD 8982.
The process of obtaining an Advisory Opinion from EEOC is discussed at 2012 et
seq.
1353 Procedure for issuing determinations and decisions

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The EEOC has delegated the authority to make determinations regarding "cause" to
district, area, or local directors, and to the program director or regional program directors
of the Office of Program Operations, except in those cases involving issues currently
designated by the EEOC for priority review. 96 The delegated cases are referred to as
Commission Decision Precedent (CDP) cases. 97
Observation: The significance of this distinction to the parties is that charges which
fall only within the authority of the Commissioners with regard to "cause" decisions
will take a much longer time to go through the "finding" stage of processing, once the
investigation stage has ended.
With respect to "non-CDP" casesthose cases involving issues that the EEOC has
decided to resolvethe EEOC maintains a priority list of issues, as well as a pending list
of issues. Cases involving the latter may be resolved through non-precedential
determinations until the EEOC moves them to the priority list. 98
In making cause determinations, the EEOC must give substantial weight to the findings
of state and local deferral FEP agencies, 99 but it does not have to give any weight to
the legal conclusions of deferral agencies. 1
The EEOC has issued an enforcement guidance detailing the procedure for determining
the presence or absence of cause in charges involving direct and indirect evidence of
discriminatory intent or mixed motives 2
Footnotes
Footnote 96. 29 CFR 1601.21(d).

Footnote 98. EEOC Compliance Manual 603.1, 603 Appx A. B.
Footnote 1. 29 CFR 1601.21(e)(2)(iii).
Footnote 2. EEOC Revised Enforcement Guidance on Recent Developments in Disparate
Treatment Theory, No. 915.002, 7/14/92.
1354 Form and content

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If the determination is that there is "no cause" to believe that Title VII has been violated,
the charge will be dismissed by the Commission, 3 and the EEOC will send a
"right-to-sue" notice, 4 informing the charging party that if he or she wishes to pursue
his or her Title VII remedies further, he or she must file suit within 90 days after receipt
of the dismissal notification. 5
If a "cause" determination has been made, the determination letter informs the parties that
the EEOC intends to conciliate the matter and will notify aggrieved persons of their right
to sue if conciliation fails. 6
No right-to-sue notification will be sent with a "cause" finding, but if 180 days have
passed since the charge was filed, a right-to-sue notification can be requested from the
EEOC by the charging party. 7
A charging party who fails to act on a notice of right to sue within 90 days of receiving it
will usually forfeit his or her right to sue under Title VII. 8
Footnotes
Footnote 3. 42 USCS 2000e-5(b); 29 CFR 1601.19(b).
Footnote 5. 29 CFR 1601.28(b)(3).
Footnote 7. 1358.
Footnote 8. McDonnell Douglas Corp. v Green (1978) 411 US 792, 36 L Ed 2d 668, 93

1355 Procedure for reconsidering determinations and decisions

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The Commission may reconsider a determination. 9 Determinations of reasonable
cause previously issued against a governmental entity or political subdivision after a
failure of conciliation, however, will not be reconsidered. 10
If the notice of intent to reconsider is issued within 90 days from the receipt of a notice of
a right to sue and the charging party has not filed suit and did not receive a notice of
right-to-sue pursuant to its request, the notice of intent to reconsider will vacate the
dismissal or letter of determination, and will revoke the notice of right-to-sue. If the
90-day period has expired, the charging party has filed suit, or the charging party has
requested a notice of right to sue, the notice of intent to reconsider vacates the dismissal
or letter of determination, but will not revoke the notice of right to sue. 11
After reconsideration the Commission (or the issuing director) will issue a new decision
or determination. 12 If the notice of right to sue has been revoked, a new notice of right
to sue will be provided. 13
Notification of the intent to reconsider, which is effective upon issuance, and the final
decision after reconsideration, must be sent to the charging party (or the person making
the charge on behalf of such a person) and the respondent. 14
Footnotes
Footnote 9. 29 CFR 1601.21(b), (d).
Where either the Commission or the issuing director decides to reconsider a
determination, a notice of intent to reconsider will be issued. 29 CFR 1601.21(b)(1),
(d)(1).
Footnote 10. 29 CFR 1601.21(b), (d).
Footnote 11. 29 CFR 1601.21(b)(1), (d)(1).
Footnote 12. 29 CFR 1601.21(b)(1), (d)(1).
Footnote 13. 29 CFR 1601.21(b)(1), (d)(1).
Footnote 14. 29 CFR 1601.21(b)(2), (d)(2).
1356 Appeal of no cause finding

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A finding of no reasonable cause to believe that an unlawful employment practice has
occurred may be appealed, by the complainant or the person on whose behalf the claim
was filed within 14 days of the date of the determination. 15 The request is timely if it
is hand delivered or postmarked within the 14-day period, or if there is no postmark, and
the EEOC receives it by mail within 19 days of the date of the determination. 16 When
a request for review is accepted, the EEOC must promptly notify all parties to the charge.
17
The EEOC will issue a second letter of determination after considering the appeal, which
is final when issued, and which notifies the complainant of this right-to-sue within 90
days of his receipt of the determination. 18 However, an appeal of a no cause finding
will not affect the EEOC's issuance of a right-to-sue notice. 19
Footnotes
Footnote 15. 29 CFR 1601.19(a)(1).
Footnote 16. 29 CFR 1601.19(a)(2).
Footnote 17. 29 CFR 1601.19(a)(3).
Footnote 18. 29 CFR 1601.19(b)(1).
Footnote 19. 1357-1361.
(2). Right-to-Sue Notices [1357-1361]
1357 Notice issued after determination or dismissal

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If the EEOC has found reasonable cause to believe that Title VII has been violated, has
been unable to obtain voluntary compliance, and has decided not to bring a civil action
against the respondent, it will issue a notice of right to sue to the person claiming to be
aggrieved, or, in the case of a commissioner charge, to any member of the class who is
named in the charge and is either identified by the commissioner in a third-party
certificate, or otherwise identified by the Commission as a member of the class. 20

If the Commission has entered into a conciliation agreement to which the party claiming
to be aggrieved is not a party, the Commission will issue a right-to-sue notice to that
person. 21
Where the EEOC has dismissed a charge for reasons other than the merits, or after it
determines that there is no reasonable cause to believe that Title VII has been violated, it
will issue a right-to-sue notice to the person claiming to be aggrieved, or, in the case of a
commissioner charge, to any member of the class who is named in the charge and is
either identified by the commissioner in a third-party certificate, or otherwise identified
by the commissioner as a member of the class. 22
Footnotes
Footnote 20. 29 CFR 1601.28(b)(1).
Forms: Notice of right-to-sueUpon dismissal of case (EEOC Form 161 (7-87) [29
CFR 1601.28(b)]. 12 Federal Procedural Forms, L Ed, Job Discrimination 45:41.
Footnote 21. 29 CFR 1601.28(b)(2).
Footnote 22. 29 CFR 1601.28(b)(3).
1358 Notice issued at charging party's request

View Entire Section
If the charging party requests, in writing, that a notice of right to sue be issued, and the
charge to which the request relates is filed against a respondent other than a
governmental agency or political subdivision 23 the EEOC will grant the request any
time after the expiration of 180 days from the date of filing of the charge. In the case of a
Commissioner charge, the request will be granted 180 days after the filing of the charge,
or 180 days after the expiration of any period of deferral to a state agency. 24
The Commission may issue the right-to-sue notice prior to the expiration of 180 days
from the date of filing if the district or area director, or the directors of the offices of
Field Services or Systemic Programs, determine that it is probable that the Commission
will be unable to complete its administrative processing of the charge within 180 days
from the filing of the charge and make a written certificate to that effect. 25
Caution: The courts have disagreed on whether this early issuance of a right to sue
notice is proper, and it could have a negative effect on a charging party's right to sue in
federal court. 26
There is no requirement that a copy of a right-to-sue notice be sent to the respondent

employer. 27
Footnotes
Footnote 23. 1361.
Footnote 24. 29 CFR 1601.28(a)(1).
Forms: RequestFor issuance of right-to-sue notice [29 CFR 1601.28(a)(1)]. 12
Forms: Notice of right-to-sueIssued on request (EEOC Form 161-B (3-84)) [29 CFR
1601.28(a)]. 12 Federal Procedural Forms, L Ed, Job Discrimination 45:43.
Footnote 25. 29 CFR 1601.28(a)(2).
Footnote 27. Burwell v Eastern Airlines, Inc. (1975, ED Va) 394 F Supp 1361, 10 BNA
1359 Form and content of notice

View Entire Section
The notice of right to sue includes:
authorization to the charging party to bring a civil action within 90 days from the receipt
of the authorization; 28
advice concerning the institution of a civil action by the person claiming to be
aggrieved, where appropriate; 29
a copy of the charge; 30
the Commission's decision, determination, or dismissal. 31
Where the charge has been filed on behalf of another person, 32 the right to sue notice
will only identify the charging party, so as to protect the confidentiality of the aggrieved
person. 33
The EEOC must send a copy of the right-to-sue notice to the complaining party's
attorney. 34
Footnotes
Footnote 28. 29 CFR 1601.28(e)(1).
Footnote 29. 29 CFR 1601.28(e)(2).
Footnote 30. 29 CFR 1601.28(e)(3).
Footnote 31. 29 CFR 1601.28(e)(4).
Footnote 32. 1238.
Footnote 33. 49 Fed. Reg. 13873 (4/9/84).
1360 Effect of right-to-sue on EEOC processing

View Entire Section
The issuance of a right-to-sue notice terminates further EEOC proceedings, unless it is
determined that it would effectuate the purposes of Title VII to further process the
charge. 35
A right-to-sue notice does not terminate the processing of a Commissioner charge. 36
Footnotes
Footnote 35. 29 CFR 1601.28(a)(3).
Forms: RequestFor continued processing of case after issuance of right-to-sue notice
[29 CFR 1601.28(a)(3)]. 12 Federal Procedural Forms, L Ed, Job Discrimination
45:44.
Footnote 36. 29 CFR 1601.28(a)(3).
1361 Right-to-sue procedure concerning public respondents

View Entire Section
If the respondent is a governmental agency or a political subdivision, the Commission
will issue the notice of a right to sue when a charge has been dismissed. 37
cases, the Attorney General will issue the notice of a right to sue. 38
In all other
However, one court has found that the regulation conflicts with the plain language of
Title VII, under which a right-to-sue letter must be issued by the U.S. Attorney General
in a case involving a government, governmental agency, or political subdivision.
Accordingly, the Attorney General is required by statute to issue a notice of right to sue
when a charge is dismissed. On the other hand, this requirement is not jurisdictional in
nature, but is subject to equitable waiver, modification, or estoppel under the proper
circumstances. 39
Footnotes
Footnote 37. 29 CFR 1601.28(d).
Footnote 38. 29 CFR 1601.28(d).
Footnote 39. Woods v Missouri Dept. of Mental Health, Kansas City Regional
Diagnostic Center (1984, WD Mo) 581 F Supp 437, 35 BNA FEP Cas 1587.
e. Conciliation [1362-1369]
1362 Basic rules

View Entire Section
If the EEOC determines, after an investigation, that there is reasonable cause to believe
that a violation has occurred, Title VII requires that it first endeavor to eliminate the
alleged unlawful employment practice by informal methods of conference, conciliation,
and persuasion. 40
The EEOC perceives the objective of conciliation to be a written agreement which
eliminates unlawful employment practices and provides appropriate affirmative relief. 41
The EEOC insists on written conciliation agreements among the parties. 42
Conciliation will usually be handled at the district office level, and the Commission has
delegated authority to make and approve conciliation agreements to district directors and
the directors of the offices of Field Services and Systemic Programs. 43
There is no implied private right of action against the EEOC for the insufficiency or lack
of conciliation efforts in a private party's charge of discrimination, and the adequacy of
the EEOC's conciliation efforts is not subject to review under the Administrative
Procedure Act. 44
Observation: Under an apparently little-used provision of Title VII, upon the request
of any employer or any labor organization whose employees or members refuse or
threaten to refuse to cooperate in effectuating the provisions of Title VII, the
Commission has the power to assist in such effectuation by conciliation or other
remedial action. 45
Footnotes
Footnote 41. 29 CFR 1601.24(a); EEOC Compliance Manual 60.1.
Footnote 42. 29 CFR 1601.24(a)
Conciliation agreements are discussed at 2654 et seq.
Footnote 43. 29 CFR 1601.24(b).
Footnote 44. Hall v EEOC (1978, ND Cal) 456 F Supp 695, 17 BNA FEP Cas 1212, 17
CCH EPD 8492.
1363 Initial meeting with charging party

View Entire Section
The charging party will be advised that the Commission seeks the kind of remedy that a
federal court would provide if the charging party prevailed in litigation, in order to justify
the charging party's waiver of his or her right to sue. 46 The conciliator will also explain
that if conciliation efforts fail a civil action may still be brought against the respondent by
the Commission or by the charging party. 47
The conference with the charging party is usually conducted by telephone, although a
meeting at the EEOC office may be scheduled. At the meeting, the EEOC determines
whether any changes have occurred since the completion of the investigation, such as the
charging party's employment history, interest in rehire, and loss of earnings computation
that would affect the original remedial objectives. 48
Where the charging party is represented by an attorney, the EEOC conciliator can meet
with the charging party to discuss conciliation only with the attorney's express
agreement. 49
Footnotes

1364 Initial meeting with respondents

View Entire Section
After the EEOC conciliator has met with the charging party and has prepared conciliation
proposals, he will schedule a conciliation conference with the respondent, requesting that
the conference be with officials who have the authority to sign an agreement. 50
If both a company and a union are involved in the charge, the EEOC will attempt to
schedule initial meetings with them separately. 51
Footnotes
1365 Consolidation of other charges for the conciliation conference

View Entire Section
If a pending charge raises matters relating to issues to be conciliated, in another
complaint where it has been determined that reasonable cause of a violation exists, an
expedited cause determination 52 is issued to the respondent informing the respondent
that the related charge will be included in the conciliation discussions. 53
Footnotes
Footnote 52. 1350.
1366 Format of a conciliation conference

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At the conciliation conference, after describing the Commission's procedures, the
conciliator will explain:
that the Commission is seeking a written agreement which remedies the violation and
which provides appropriate relief for the charging party and other similarly situated
persons; 54
that the agreement will contain a waiver of the charging party's right to sue if the
charging party signs it; 55
that if an agreement acceptable to the Commission is obtained, the matter will not be
referred to the Commission's General Counsel or to the Office of Federal Contract
Compliance Programs for further legal action; 56
that it is advantageous for a respondent to settle through conciliation, thus avoiding a
lawsuit and the accompanying adverse publicity and expense. 57
that where the conciliation process results in a written agreement requiring future
performance by the respondent, EEOC will conduct periodic reviews to determine
compliance with the agreement's terms. 58
At a conference with a union respondent, the union will also be advised that its failure to
agree to the proposed relief will not prevent the Commission from signing an otherwise
acceptable agreement with the company, and also that interference with the
implementation of such an agreement is unlawful and may be enjoined by federal courts.
59
During the conference the conciliator presents to the employer the EEOC's proposal for
conciliation. 60
If the respondent agrees completely with the proposal presented, or objects only to minor
provisions that do not delete any of the proposal's major provisions,the concilator may
revise the agreement and present it again to the respondent. 61
If the respondent proposes significant modifications to the agreement, the respondent will
be requested to submit detailed draft proposals in writing within ten days, if they are not
already prepared. 62
Once the written counterproposal with significant modification has been received by the
EEOC, further meetings will be arranged with the respondent to resolve differences. 63
Footnotes
Footnote 62. EEOC Compliance Manual 64.6(a), (b).
1367 Consequences of successful conciliation

View Entire Section
Once a proposal acceptable to both the EEOC and the respondent has been agreed upon
and signed by the respondent, the conciliator will present the agreement to the charging
party for his signature, and explain the agreement with particular emphasis on any
deviation or variation from the relief originally sought. If the charging party
recommends appropriate minor changes which do not detract from the substance of the
agreement, the agreement will be modified and resubmitted to the respondent's
representatives for approval and signature. 64
Once both the charging party and the respondent have signed the proposal, the conciliator
will sign it and recommend approval of it to his supervisor, who reviews the agreement
and, as appropriate, forwards it to the district director. 65
Where a joint complaint is referred to the EEOC by a federal funding agency, the
referring agency is notified of the conciliation agreement. 66
If the agreement is approved, fully executed copies of the agreement will be sent to all
parties, 67 and a copy will be sent to EEOC Headquarters. 68
The signature of the charging party is not always necessary for the consummation of an
agreement between the EEOC and the respondent, when: (1) the charging party cannot
be located; (2) the charging party is recalcitrant toward Commission efforts to conciliate;
or (3) there was a "no cause" finding relating to the particular charging party, but a
"cause" finding as to others or as to a class of employees. 69
If the charge was filed on behalf of another person, 70 the conciliation agreement may
be signed by either the person filing the charge or the person on whose behalf the charge
was filed. 71
Recommendation: Conciliation of an EEOC charge will not necessarily terminate

the processing of identical complaints pending before state and local FEP agencies. If
the parties intend this result, the EEOC agreement should spell this out in detail, and a
copy should be sent to all such agencies when executed.
Footnotes
Footnote 65. EEOC Compliance Manual 64.8(a)-(c).
Footnote 69. EEOC Compliance Manual 63.2; 63.3; 63.4.
Footnote 70. 1238.
Footnote 71. 49 Fed. Reg. 13873 (4/9/84).
1368 Consequences of unsuccessful conciliation

View Entire Section
If a respondent fails or refuses to participate in a conciliation conference, or if the
conference proves unsuccessful, the district director will notify the respondent by letter
that the Commission has terminated its effort to conciliate. 72 The charging party will
be kept informed by telephone or in person of the status of conciliation efforts, including
the fact that a failure-of-conciliation letter has been sent to the respondent. 73
Upon the failure of attempted conciliation, the EEOC may send the charging party a
right-to-sue notice 74 or it may file suit on behalf of the charging party (and others, if
applicable) in federal district court. 75
In determining which cases will be taken to litigation, the Commission has established
five categories of cases that will receive priority: (1) cases having the potential to
promote the development of law favorable to the nondiscriminatory purposes of Title
VII; (2) situations involving the integrity of the agency's investigation and concilation
processes; (3) individual, systemic, or class cases involving violations of established
antidiscrimination principles; (4) cases designed to provide localaties, individuals, and
protected groups with needed enhanced services; and (5) cases of special concern to
particular geographic regions served by each of the district offices. 76
Footnotes
Footnote 72. 29 CFR 1601.25.
Footnote 74. 1357.
Forms: Notice of right-to-sueUpon failure of conciliation (EEOC Form 161-A
(5-85)) [29 CFR 1601.28(b)]. 12 Federal Procedural Forms, L Ed, Job Discrimination
45:42.
Footnote 76. National Litigation Plan Adopted By EEOC (11/22/83).
1369 Confidentiality of conciliation efforts

View Entire Section
The EEOC is prohibited from making public anything said or done during conciliation
efforts and from using any such material as evidence in a subsequent proceeding without
the written consent of the persons concerned. 77 This prohibition extends to
disclosures to charging parties. 78 Furthermore, a party's insurance carrier is a member
of the public for purposes of 42 USCS 2000e-5(b) (footnote 17) and thus disclosure of
conciliation material by the EEOC to a carrier is prohibited. 79
When someone requests to see EEOC case files, EEOC employees are instructed to
expunge all information in the files concerning the Commission's attempts to settle the
charges. 80
Footnotes
Footnote 77. 42 USCS 2000e-5(b); 29 CFR 1601.26(a).
Footnote 78. Sears, Roebuck & Co. v EEOC (1978) 189 App DC 163, 581 F2d 941, 17
BNA FEP Cas 897, 16 CCH EPD 8348, 47 ALR Fed 457.
Footnote 79. American Centennial Ins. Co. v U.S. EEOC (1989, DC NJ) 722 F Supp 180,
f. Compliance Reviews [1370-1375]
1370 Basic rules

View Entire Section
Under Commission regulations, proof of compliance with Title VII must be obtained by
the Commission before a case is closed. 81
Observation: This should be contrasted with the negotiated settlement procedure

utilized in Rapid Processing 82 where the Commission is less involved, and will
allow the parties more freedom to set their own mutually acceptable terms. This is
because a "cause" finding 83 has not been made in the latter instance.
Footnotes
Footnote 81. 29 CFR 1601.24(c).
Footnote 82. 1251.
Footnote 83. 1350.
1371 Types of compliance reviews

View Entire Section
There are three types of compliance reviews. The first type is an ongoing in-office
analysis of written reports submitted by a respondent on the schedule dictated by the
conciliation agreement. 84
The second type is an inquiry by telephone or mail to an aggrieved person to determine if
provisions for specific remedial relief, or that prohibit specific discriminatory treatment,
are being followed. 85
The third type of compliance review is an on-site review 86

the reviewing official. 87
requiring a facility visit by
Footnotes
1372 Conditions for on-site reviews

View Entire Section
Go to Supplement
The EEOC considers any of the following conditions to require the an on-site review of a
conciliation agreement:
like or related charges received subsequent to the execution of the agreement; 88
investigation of subsequent charges reveals that respondent is not in compliance with
the terms of the existing agreement; 89
reports of irregularities are received from the charging party or members of the affected
class; 90
apparent violations of the agreement are established through an in-office review of the
reports submitted; 91
1372 ----Conditions for on-site reviews [SUPPLEMENT]
Practice Aids: Equitable considerations as modifying, through tolling or estoppel, time
limitations of Age Discrimination in Employment Act (ADEA) (29 USCS 626(d))
for filing charge with Equal Employment Opportunity Commission. 110 ALR Fed
377.
Footnotes

1373 Conduct of on-site reviews

View Entire Section
If it is established that an on-site review is necessary, the EEOC conciliator who conducts
the review will contact the respondent for the purpose of serving any like and related
charges which have been received, and to arrange a mutual date when a compliance
review can be conducted at the respondent's facility. As part of the review, the EEOC
will contact the charging party and members of the affected class for the purpose of
obtaining affidavits, if this is appropriate. At the respondent's facility, the conciliator will
endeavor to determine if the respondent:
(1) has, in fact, violated the agreement;
(2) can show any justification for violations; and
(3) should take certain remedial action to comply with the agreement. 92
Footnotes
1374 Procedure if subsequent related charges are filed against respondent

View Entire Section
After the execution of a conciliation or settlement agreement, if the EEOC receives
charges that are like or related to those on which the agreement was based, it may
investigate those charges independently or in conjunction with a compliance review. The
EEOC decides whether to conduct a combined investigation/compliance review by
examining:
(1) the context in which the like or related charges are filed, for example, at the same or
at a different facility;
(2) the number of charges filed;
(3) the likelihood that one or more of the like or related charges has merit;
(4) whether any of the like or related charges raises a question concerning the accuracy of
a scheduled compliance report;
(5) the expediency of combining the investigation with a compliance review;
(6) whether the combined processing would assist in obtaining a complete evidentiary
record. 93
Footnotes
1375 Closing case

View Entire Section
After the EEOC has completed a compliance review, the investigator who performed the
review completes a report indicating his rationale for a finding of compliance or
non-compliance and recommends any further action that should be taken. If
non-compliance is found, the investigator may recommend that the EEOC:
(1) issue a letter indicating that the respondent has not complied;
(2) issue a finding of reasonable cause to believe that Title VII has been violated on like
or related charges; or
(3) initiate breach of contract proceedings. 94
If the investigator finds that a respondent is in compliance he may recommend that the
EEOC issue a letter confirming that finding after the Commission closes the case, or that
it issue a no-cause finding on like and related charges. 95
In cases of non-compliance the EEOC notifies the respondent by letter of the finding and
invites the them to participate in further negotiations. It also notifies the respondent of
the provisions that permit the agency or the charging party to file a breach of contract
suit. 96 If the respondent agrees to further negotiations, additional face-to-face
conferences will be scheduled with the goal of drafting addendum provisions or revisions
to the existing agreement. 97 If negotiations are unsuccessful, the case is returned to the
Office Director for determination of whether the EEOC will initiate litigation. 98
Footnotes
Footnote 94. EEOC Compliance Manual 80.9(a)-(c).

Footnote 95. EEOC Compliance Manual 80.9(e), (f).
2. EEOC Americans With Disabilities Act (ADA) Proceedings [1376-1379]
1376 Generally; complaint processing

View Entire Section
The Equal Employment Opportunity Commission is the agency primarily responsible for
enforcing the ADA's prohibition against employment discrimination. 99 Effective July
26, 1992, 1 the procedures for processing complaints alleging violations of the ADA's
prohibition against employment discrimination are incorporated by reference from Title
VII. 2
The incorporated Title VII sections provide for charge filing, deferral to qualified state
agencies, investigation, determination of reasonable cause, and conciliation. 3
Future amendments of the procedures provided under Title VII will also apply to persons
with disabilities seeking remedies under the ADA's prohibition against employment
discrimination. 4 These procedures also apply to persons claiming to be aggrieved by
unlawful retaliation or interference with rights protected under the ADA's prohibition
against employment discrimination. 5
Observation: The EEOC and the Department of Justice have issued a proposed joint
rule to coordinate the processing of discrimination complaints that are covered by both
Title II of the ADA, which prohibits discrimination by state and local governments in
employment and other aspects of their programs and activities, and Title I of the ADA
or 504 of the Rehabilitation Act, which prohibits discrimination on the basis of
disability in programs and activities receiving federal financial assistance. The
proposed rule describes procedures for processing both single complaints filed with
either EEOC or an agency covered by 504, as well as dual-filed complaints which
have been separately filed with both agencies. It also offers two different options for
investigative standards to be used by a 504 agency in its complaint investigations,
and sets out information sharing and confidentiality standards. 6
Footnotes
Footnote 99. See also Am Jur 2d New Topic Service, Americans with Disabilities Act
20 et seq.
Footnote 6. 57 Fed Reg 14630, 4/21/92.
1377 Alternate means of dispute resolution

View Entire Section
Where appropriate and authorized by law, the use of alternative means of dispute
resolution, including conciliation, facilitation, mediation, factfinding, and minitrials, is
encouraged to resolve disputes arising under the ADA. 7 Such measures are intended to
be completely voluntary, 8 and to supplement rather than supplant the remedies provided
in the ADA. 9
Footnotes
Generally, as to alternative means of dispute resolution, see Am Jur 2d New Topic
Service, Alternative Dispute Resolution.
Footnote 9. H Conf Rept No. 101-596, 7/12/90, p. 89, H Rept No. 101-485, Part 3,
5/15/90, pp. 76-77.
1378 Processing of complaints where there is overlapping jurisdiction

View Entire Section
Go to Supplement
The EEOC 10 and the Office of Federal Contract Compliance Programs (OFCCP) 11
have issued regulations to coordinate their efforts to enforce the ADA and 503 of the
Rehabilitation Act where jurisdiction over complaints under these laws overlaps. These
rules do not affect the OFCCP's conduct of compliance reviews of government
contractors and subcontractors under 503. 12 According to the regulations, when a
complaint or charge is covered by both the ADA and 503 of the Rehabilitation Act, it
will be considered simultaneously dual filed under both statutes. 13
If a 503/ADA charge is first filed with the EEOC, the EEOC will refer it to the OFCCP
under certain circumstances. First, where the EEOC has declined to litigate, although
cause has been found, it will refer the charge to the OFCCP for review of the file and any
administrative action deemed appropriate under 503. 14
Second, if an ADA charge filed with the EEOC contains an allegation of a 503
affirmative action requirement violation, the EEOC will refer it to the OFCCP for
resolution under both statutes, with certain exceptions. The EEOC will bifurcate charges
and retain the ADA components, as well as any allegations pertaining to an illegal basis
of discrimination other than disability where the charge also includes:
an allegation of discrimination on the basis of race, color, religion, sex, national origin,
or age;
an allegation involving a Priority List issue; 15
or
a claim that is otherwise deemed of particular importance to the EEOC's enforcement of

the ADA. 16
In bifurcated cases where the EEOC has referred the 503 affirmative action component
of the charge to the OFCCP for processing, the charge is considered simultaneously dual
filed under 503. 17
Observation: The regulations do not identify what the EEOC considers an issue of
importance to the EEOC's enforcement of the ADA or how these issues may differ, if
at all, from those on the Priority List. Additionally, although the rule states that the
EEOC will retain these issues if it is the receiving agency, no corresponding
mechanism is provided for the OFCCP to identify and transfer such cases if it is the
receiving agency of a case containing such an issue. This ambiguity not only leads to
confusion and uncertainty, but also could encourage agency "shopping" by those
whose complaints contain these issues.
If a disability-related charge filed with the EEOC falls under OFCCP rather than EEOC
jurisdiction, the EEOC will transfer the charge to the OFCCP and notify the parties of the
transfer. The charge will be considered received by the OFCCP on the day it was
received by the EEOC. 18
1378 ----Processing of complaints where there is overlapping jurisdiction
[SUPPLEMENT]
Regulations:
Footnotes
Footnote 12. 29 CFR 1641.1, 41 CFR 60-741.1.
Footnote 13. 29 CFR 1641.5(a), 41 CFR 60-742.5(a).
Footnote 15. A Priority List issue is one of a limited number of controversial topics on
which there is no definitive guidance as to the EEOC's position. The Priority List will be
jointly developed and periodically reviewed by the EEOC and the Department of Labor.
29 CFR 1641.8, 41 CFR 60-742.8.
Footnote 16. 29 CFR 1641.8, 41 CFR 60-742.8.
Footnote 17. 29 CFR 1641.6(b), 41 CFR 60-742.6(b).
Footnote 18. 29 CFR 1641.6(c), 41 CFR 60-742.6(c).
OFCCP procedures for processing 503/ADA charges that have been filed first with the
OFCCP, procedures for inter-agency sharing of information, and the applicable
conciliation standards are discussed at 1606 et seq., while information disclosure
requirements are addressed at discussed at 1956 et seq.
1379 Effect of filing a worker's compensation claim

View Entire Section

Filing a workers' compensation claim does not prevent an injured worker from filing a
charge under the ADA. While exclusivity provisions in state workers' compensation laws
bar all other civil remedies related to an injury that has been compensated by the workers'
compensation system, they do not prohibit an individual covered by the ADA from filing
a charge with the EEOC, or filing a suit under the ADA after completing administrative
prerequisites. 19
Footnotes
3. EEOC Equal Pay Act Proceedings [1380-1390]
1380 Generally
View Entire Section
The EEOC is the agency charged with administration and enforcement of the federal
Equal Pay Act. 20 The Commission has issued regulations and Compliance Manual
provisions setting forth procedures for the administrative resolution of Equal Pay Act
(EPA) cases. 21
Footnotes
Footnote 20. Reorganization Plan No. 1 of 1978 transferred responsibility for
enforcement of the Equal Pay Act (29 USCS 206(d)) from the Labor Department to the
EEOC.
1381 Concurrent processing of charges under Title VII and the EPA
View Entire Section
When the EEOC is investigating a charge or allegation relating to a possible violation of

one of the statutes that it administers and it finds a violation of one or more of the other
statutes that it administers, it may seek to remedy the violation in accordance with the
procedures of all relevant statutes. 22 When a charging party alleges both violations of
Title VII and the EPA, the charge may be processed only under Title VII if there is no
jurisdiction under the EPA. Conversely, the charge may be processed only under the
EPA if there is no jurisdiction under Title VII. 23 For the most part, however, the EEOC
will process the charges under both statutes. 24
Practice guide: Complainants who have allegations that could be processed under
both Title VII and the EPA are encouraged to file under both statutes, thus maximizing
their protections and increasing their prospects for full relief. However, any person
claiming to be aggrieved, or the agent for such a person, may advise the EEOC of the
statutes under which he wishes the EEOC to commence its inquiry. 25
Observation: When concurrent Title VII and EPA charges are being processed, the
EEOC's Compliance Manual basically defers to the processing requirements of Title
VII, and adds some supplementary EPA precautions that are consistent with those
requirements. Because of the EEOC's basic adherence to Title VII processing
requirements when a charge is being concurrently processed under the EPA, the
discussion that follows 26 examines the administrative procedures to be followed
when only the EPA is allegedly violated. 27
Footnotes
Footnote 22. 29 CFR 1620.34(c).
Footnote 25. 29 CFR 1620.34(b), 51 Fed. Reg. 29816, 8/20/86.
Footnote 27. For a discussion of administrative proceedings under Title VII, see 1232
et seq.
1382 Confidentiality of complaints

View Entire Section
The EEOC will not divulge the identity of parties or witnesses who request
confidentiality and provide information to it concerning alleged violations of the EPA,
unless it is necessary to do so in a court proceeding. 28 However, a person may
authorize the disclosure of his identity by giving prior written consent. 29
Footnotes
Footnote 28. 29 CFR 1620.30(c).
1383 Pre-complaint counseling

View Entire Section
When a complaint is only processed under the EPA, it is the EEOC's policy, prior to
filing a charge, to counsel the complainant concerning:
the confidentiality of EPA complaints; 30
the statutory time limitations affecting the recovery of back wages; 31
the complainant's right to file an EPA lawsuit in federal or state court without going
through the administrative process; 32
Footnotes
Footnote 30. EEOC Compliance Manual 2.4(a)(1)(ii).
Footnote 32. EEOC Compliance Manual 2.4(g).
1384 Filing a complaint

View Entire Section
Complaints relating to possible violations of the Equal Pay Act (EPA) may be submitted
to any office of the EEOC or to any office of the Wage and Hour Division of the
Department of Labor. 33 Complaints that are processed only under the EPA are
submitted in the form of a confidential affidavit. 34
Footnotes
Footnote 33. 44 Fed. Reg. 38670 (7/2/79).
Footnote 34. EEOC Compliance Manual 2.5(c) Exhibit 2-E.
1385 Administrative closure

View Entire Section
The EEOC may administratively close a complaint being processed only under the EPA
whenever:
there is no jurisdiction over the respondent; 35
the complainant cannot furnish information concerning himself or any other affected
individual for whom there is potential backpay liability for the preceding two years; 36
alleged violations of the EPA are not substantiated after a full investigation. 37
The EEOC permits charging parties to appeal no cause determinations before a right to
sue letter is issued, and it has developed procedures and an Office of Program Operations
in Washington, D.C. to review these appeals. 38 Nevertheless, a charging party may still
request a right to sue letter immediately without waiting for the appeal period to expire.
39
Footnotes
Footnote 38. EEOC Compliance Manual 18, 21.25.
Footnote 39. EEOC Policy Statement on No Cause Findings, 12/15/86.
1386 Withdrawal of complaints

View Entire Section

There are no formal requirements for withdrawal of an EPA complaint, and the
Commission may continue to process and investigate charges filed only under the EPA,
despite the complainant's request for withdrawal. 40
Footnotes
1387 Investigations
View Entire Section
The EEOC may make any inquiry that is necessary to obtain compliance with the Equal
Pay Act, including investigating and gathering data regarding wages, hours, and other
conditions and practices of employment, entering establishments for the purpose of
inspecting the premises and records, transcribing records, and interviewing employees.
41
Investigations of alleged EPA violations will minimally include interviews with
representatives of the respondent, past and present employees and applicants, and outside
persons, including union officials, community leaders, and employment agency
representatives. 42 In addition, witnesses identified by the complainant are also
interviewed. 43 Interviews may be conducted at the worksite, at the EEOC office, at the
witness residence, or at any other suitable place in the community. 44 The complainant
may be recontacted to clarify allegations, explore possible respondent defenses, or
determine whether he has any additional information. 45 The respondent's attorney will
only be allowed to be present during interviews of the respondent or any management
employee whose job is not a subject of the investigation. 46
The EEOC has determined that fact-finding conferences are inappropriate for complaints
filed only under the EPA. 47
Footnotes
Footnote 41. 29 USCS 211(a); 29 CFR 1620.30(a).

1388 Subpoenas
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Any member of the EEOC has the authority to sign a subpoena requiring the attendance
and testimony of witnesses; the production of evidence, including, but not limited to,
books, records, correspondence, or documents in the possession or under the control of
the person subpoenaed; and access to evidence for the purposes of examination and the
right to copy. 48 There is no right of appeal to the EEOC from the issuance of a
subpoena, 49 and if a person fails to comply with a subpoena, the EEOC may utilize the
provisions of 15 USCS 49 and 50of the Federal Trade Commission Act to compel
enforcement of the subpoena. 50
Footnotes
Footnote 48. 29 CFR 1620.31(a).
Footnote 49. 29 CFR 1620.31(b).
Footnote 50. 29 USCS 209; 29 CFR 1620.31(c).
1389 Settlement attempts

View Entire Section
After an investigation has been conducted and the evidence demonstrates that there may
be a violation of the EPA, a conference will be held with the respondent. 51 A settlement
agreement routinely requires the complainant and the EEOC to relinquish the right to
institute lawsuits on behalf of the individuals affected by the alleged EPA violations, and
specifically indicates that the agreement does not constitute an admission of guilt by the
respondent. However, the EEOC does not waive or limit its right to investigate or seek
relief in any other charge including, but not limited to, a charge filed by a Commissioner
against the respondent. 52
If no settlement is reached, the Commission will issue a letter of violation (LOV) as
promptly as possible. 53
Administrative steps are not prerequisites to Equal Pay Act suits, and there is no
requirement that the EEOC conciliate claims before filing suit. 54
Footnotes
Footnote 52. EEOC Compliance Manual Exhibit 15-B.
Footnote 54. EEOC v Home of Economy, Inc. (1983, CA8) 712 F2d 356, 32 BNA FEP
Cas 599, 32 CCH EPD 33731.
1390 Processing criminal violations

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In those unusual circumstances in which a violation of the EPA may constitute a criminal
violation, the EEOC will refer the charges to the Department of Justice for criminal
prosecution. The Regional Attorney and the U.S. Attorney will coordinate a
simultaneous filing of civil and criminal actions. 55
Footnotes
4. EEOC Age Discrimination (ADEA) Proceedings [1391-1451]
1391 Generally
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The EEOC is the agency charged with administration and enforcement of the federal Age
Discrimination in Employment Act. 56 The Commission has issued regulations and
Compliance Manual provisions setting forth procedures for the administrative resolution
of Age Discrimination in Employment Act (ADEA) cases. 57
Caution: There is some doubt about the constitutionality of the federal statute under
which presidential reorganization plans are issued, and, consequently, about the
EEOC's authority to enforce the ADEA. 58
Case authorities:
Because EEOC is primary agency charged with implementing ADEA, its interpretation
thereof is entitled to great deference. Kralman v Illinois Dep't of Veterans' Affairs (1994,
CA7 Ill) 23 F3d 150, 64 BNA FEP Cas 1645, 64 CCH EPD 42996, reh den (CA7 Ill)
District court erred when it dismissed EEOC's suit as duplicative of ADEA suit that had
already been brought by aggrieved employee, because EEOC has unequivocal statutory
right to sue to enforce ADEA, and right of individual employee to bring suit terminates
upon commencement of action by EEOC to enforce rights of such employee. EEOC v
G-K-G, Inc. (1994, CA7 Ill) 39 F3d 740, 66 BNA FEP Cas 344.
Unlike private representative suit, EEOC's authority to bring such action is not limited to
circumstances where plaintiffs are similarly situated, nor is its authority compromised
when it intervenes rather than brings its own direct action; thus, assuming that EEOC's
statutory authority preempts class action procedure of FRCP 23 and joinder requirements
of FRCP 20(a), EEOC may proceed on behalf of ADEA plaintiffs whether or not they are
similarly situated, common questions of law or fact predominate, or claims arise out of
same action or occurrence. Flavel v Svedala Indus. (1994, ED Wis) 875 F Supp 550.
Footnotes
Footnote 56. Reorganization Plan No. 1 of 1978 transferred responsibility for
enforcement of the Age Discrimination in Employment Act (29 USCS 621 et seq.)
from the Labor Department to the EEOC.
Footnote 58. For a discussion of the constitutional issue, see 1206 et seq.
1392 Major differences in Title VII and ADEA processing

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When the EEOC is investigating a charge or allegation relating to a possible violation of
one of the statutes that it administers, and it finds a violation of one or more of the other
statutes which it administers, it may seek to remedy the violation in accordance with the
procedures of all relevant statutes. 59 However, while the ADEA and Title VII are both
administratively enforced by the EEOC, there are some major differences in the way
claims are processed under those statutes, primarily due to the different requirements of
the respective laws and the court interpretations under each. These differences are
crucial to keep in mind when an aggrieved individual states a claim that alleges violations
of both statutes.
Illustration: A Black female who is 40 years of age may reasonably suspect that she
was denied a promotion that went to a younger White male because of her race, sex,
and age. A charge to that effect filed with EEOC would have to be administratively
processed by separating out the age allegation to the extent necessary to conform with
the statutory requirements of the ADEA as well as Title VII.
The major differences in the administrative processing of an ADEA, as opposed to a Title
VII claim, 60 include:
different standards under each act for the legal sufficiency of a charge; 61
the fact that an ADEA "complaint" has no counterpart under Title VII; 62
Title VII charges, unlike ADEA charges, require sworn verification; 63
the timeliness of the charge is subject to different considerations under each law; 64
state deferral agencies under Title VII are often different from state referral agencies
under the ADEA; 65
the ADEA, unlike Title VII, does not require an initial resort to state remedies prior to
filing with EEOC, or bar simultaneous state and federal administrative processing of a
charge; 66
"aggrieved" individuals under Title VII, but not the ADEA, need a "right to sue" notice
from EEOC prior to initiating litigation; 67
unlike Title VII, there is no provision in the ADEA for a respondent to petition to
revoke or modify an administrative subpoena; 68
under the ADEA, there is no counterpart to a Title VII determination that "no
reasonable cause" of a violation has been found by EEOC; 69
the ADEA, unlike Title VII, has specific confidentiality protections outlined in the
statute; 70
the statute of limitations is tolled under Title VII by the filing of a charge with the
EEOC, but it is not tolled under the ADEA.
Caution: The EEOC is not required to complete its administrative processing of

ADEA charges before the statute of limitations for civil actions expires. Claimants
awaiting the outcome of EEOC administrative proceedings may thus find their ADEA
civil actions time-barred as a result of EEOC inactivity.
1392 ----Major differences in Title VII and ADEA processing [SUPPLEMENT]
Case authorities:
ADEA shares common purpose with Title VII of Civil Rights Act of 1964 (42 USCS
2000e et seq.), namely elimination of discrimination in workplace; consequently,
complementary provisions of Title VII and ADEA are to be construed consistently. Bass
v City of Wilson (1993, ED NC) 835 F Supp 255.
Footnotes
Footnote 59. 29 CFR 1620.23(c), 1626.19(b).
Footnote 61. 1399.
Footnote 62. 1398.
Footnote 63. 1399.
Footnote 64. 1404.
Footnote 65. 1394.
Footnote 66. 1396.
Footnote 67. 1409.
Footnote 68. 1444.
Footnote 69. 1445.
Footnote 70. 1393.
1393 Confidentiality considerations

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Unlike Title VII, the ADEA has no statutory prohibition against the disclosure of
information gathered by the EEOC. Therefore, access to such information is controlled
by the Freedom of Information Act. 71
However, the EEOC's ADEA regulations do contain confidentiality requirements.
Unless necessary in a court proceeding, the identity of a complainant, confidential
witness, or "aggrieved" person on whose behalf a charge was filed, will ordinarily not be
disclosed by the Commissioner without prior written consent. 72
Footnotes
Footnote 71. See discussion at 1966 et seq.
b. The Charging Process [1394-1436]
(1). State Referral Agencies [1394-1397]
1394 Generally
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A referral agency is a state authority established under state legislation prohibiting age
discrimination in employment. It must have the power to grant or seek relief from
discriminatory practices. 73
EEOC regulations explicitly list states to which all ADEA charges will be referred.
These include Alaska, California, Connecticut, Delaware, District of Columbia, Florida,
Georgia, Guam, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maryland, Massachusetts,
Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, New York, Oregon, Pennsylvania, Puerto Rico, South Carolina, Utah, Virgin
Islands, West Virginia, and Wisconsin. States to which only specified classes of charges
are referred include Arizona, Colorado, Kansas, Maine, Ohio, Rhode Island, South
Dakota, and Washington. 74
State aspects: It is not safe to rely totally on court decisions or EEOC regulations
indicating that a particular state agency is or is not a referral agency, because state laws
on the subject may have changed.
It is important to determine whether or not alleged age discrimination is within the
jurisdiction of a referral agency, both for determining whether the allegations must be
submitted to that agency for administrative processing, 75 and for the purpose of
determining whether the 180-day or the 300-day time limitation for filing a charge is
applicable. 76
Footnotes
Footnote 74. 29 CFR 1626.9(b), (c).
Footnote 75. 1396.
1395 Concurrent charges with EEOC and referral agency

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Unlike Title VII, 77 a charging party does not have to file with an appropriate state
agency prior to filing an administrative charge with the EEOC, but may file with the
EEOC first 78 and may have the charge simultaneously processed by both state and
federal agencies. 79
The ADEA only requires notice sufficient to allow EEOC to act. The purpose of this
requirement was met where a nonreferral state agency forwarded a plaintiff's state charge
to the EEOC. Consequently, the plaintiff's failure to file a charge with the EEOC did not
bar her subsequent action, and the EEOC's failure to act on the charge did not affect the
plaintiff's right to sue. 80 The requirements of the ADEA also are satisfied by the EEOC
sending a copy of the employee's EEOC charge to the appropriate state agency. 81
Observation: Generally the EEOC will have agreements with state referral agencies
concerning who will have the primary responsibility for processing certain charges. 82
Footnotes
Footnote 78. Murnane v American Airlines, Inc. (1978, DC Dist Col) 482 F Supp 135, 21
BNA FEP Cas 284, 21 CCH EPD 30436, affd 215 App DC 55, 667 F2d 98, 26 BNA
Footnote 79. Oscar Mayer & Co. v Evans (1979) 441 U.S. 750, 60 L Ed 2d 609, 99 S

Footnote 80. Copley v Unified School District No. 259 (DC Kan) No. 85-4197-S,
6/19/86.
Footnote 81. Kaczor v Buffalo (1987, WD NY) 657 F Supp 441, 47 BNA FEP Cas 795,
43 CCH EPD 37188.
Footnote 82. 1397.
1396 Filing charge with referral agency prior to suit

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To protect the charging party's right to file suit under the ADEA, a charge must be filed
with a state referral agency. 83
Even if the state law's time limits for filing a state charge have expired, the charging
party must commence an action by the certified mailing of a written statement of the
allegations to the appropriate state authority 84 before a federal court will entertain a
suit under the ADEA. 85
State proceedings need not be exhausted prior to the filing of a suit under the ADEA in
federal court, and that filing supersedes any state action. 86
1396 ----Filing charge with referral agency prior to suit [SUPPLEMENT]
Statutes:
29 USCS 633a(a), amended in 1995, now also applies to those with positions in the
Government Printing Office and the General Accounting Office.
Case authorities:
Intent of Congress in requiring filing with state civil rights agency under 29 USCS 633
was to allow state agency to have some opportunity to resolve age discrimination
disputes prior to commencement of federal suit. Baker v Siemens Energy & Automation
(1993, SD Ohio) 838 F Supp 1227.
Footnotes
Footnote 83. Oscar Mayer & Co. v Evans (1979) 441 US 750, 60 L Ed 2d 609, 99 S Ct

For a full discussion of the statutory administrative processing prerequisites to filing a
federal suit under the ADEA, see 2173 et seq.
1397 Worksharing agreements with referral agencies

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In order to avoid duplication of efforts and protect the charging party's right to file a
federal suit under the ADEA, 87 the EEOC may enter into an agreement with a referral
agency concerning the processing of age discrimination charges within the mutual
jurisdiction of the EEOC and the state. 88 Such documents are commonly referred to as
worksharing agreements, and they normally specify which agency will have initial
processing responsibility for certain charges. 89
The EEOC's regulations provide that a charge received by either party to a worksharing
agreement (a state referral agency or EEOC) will be considered received by the other
party to the agreement. 90
Observation: The charge will still have to conform to the requirements of a valid
charge 91 and the same considerations will be applied as to how to determine the
filing date of a charge. 92
State aspects: State referral agencies may not have the authority, under the enabling
legislation that created them, to designate the EEOC as an agent capable of receiving
charges on their behalf.
Footnotes
Footnote 87. 1396.
Footnote 88. 29 CFR 1626.10(a).
Footnote 89. 29 CFR 1626.10(c).
Footnote 90. 29 CFR 1626.10(c).
Footnote 91. 1399.

(2). Charges and Complaints [1398-1411]
1398 Difference between charge and complaint

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A person may submit either a charge or a complaint to the EEOC with respect to
suspected age discrimination. A charge is a statement filed with the EEOC, by (or on
behalf of) the "aggrieved" person, which alleges that the named prospective defendant
has engaged in, or is about to engage in, actions that violate the ADEA. 93 A complaint
consists of the same information, but is not a charge. 94
Illustration: A person who is 35 years old, and thus not covered by the ADEA, may
inform EEOC that his or her employer is violating the act with respect to older
coworkers who are covered by that law. Such information would not constitute a valid
charge for that person, but could be the basis of a complaint seeking redress for others.
Observation: While the term "charge" and "complaint" are interchangeable when
discussing Title VII proceedings, they have distinctly different meanings in the context
of ADEA enforcement.
The EEOC has taken the position that "testers" may file complaints of discrimination
under the ADEA. 95
Footnotes
Footnote 95. The Commission's policy statement is discussed in full under the topic of
who is an "aggrieved" person entitled to file a complaint under Title VII at 1237.
1399 Contents of charge and complaint

View Entire Section
A complaint need only allege that a named potential defendant has engaged in, or is
about to engage in, actions that violate the ADEA. 96
A charge is sufficient if it is in writing, names the prospective respondent, and generally
alleges the discriminatory act(s). 97 A charge also should contain: (1) the name,
address, and telephone number of the person making the charge; (2) the name and
address of the person against whom the charge is made; (3) a clear and concise statement
of the facts (including relevant dates) that constitute the alleged unlawful employment
practice; (4) the approximate number of employees of the defendant employer or total
members of the prospective defendant labor organization, and; (5) a statement of whether
proceedings involving the alleged unlawful employment practice have been commenced
before a state agency charged with the enforcement of fair employment practice laws,
and if so, the date of commencement and the name of the agency. 98
In order to constitute a charge, notice to the EEOC must be sufficient to convince a
reasonable person that a grievant has manifested an intent to activate the ADEA's
procedures. 99 Courts have not always agreed on how this can best be done. Thus,
some courts have found a letter was sufficient to constitute a charge alleging unlawful
discrimination under the ADEA. 1 A letter to the EEOC need not request the EEOC's
assistance to constitute a charge. 2
However, an employee's letter to his employer complaining about his discharge and
stating his intention to institute legal proceedings if no redress was forthcoming was not a
charge, although a copy of the letter was sent to both the EEOC and an appropriate state
FEP agency. A reasonable person would conclude that the letter, addressed to the
employer, merely stated an intention to file a charge in the future, and was insufficient to
notify the respective administrative agencies of any action desired from them by the
employee. 3
The ADEA's charge-filing requirement also may be satisfied by the filing of an EEOC
intake questionnaire, 4 but not if the claimant has been informed that a formal
administrative charge must be filed. 5
Furthermore, an employee's timely administrative complaint of veterans discrimination
filed with the Office of Federal Contract Compliance Programs was not a valid claim of
age discrimination under the ADEA, because it did not contain facts sufficient to allege
age-based discrimination. The complaint alleged that the employee was terminated
because he had a military pension and would not be hurt as badly by the loss of
employment. 6
Observation: The ADEA, unlike Title VII, has no requirement that a charging party
sign or swear to the allegations on a charge.
State aspects: Some state referral agencies may require verification of age
discrimination allegations by a charging party in order for the charge to be considered
valid under state law.
Footnotes
Footnote 97. 29 CFR 1626.8(b); 29 CFR 1626.6.

Footnote 99. Michelson v Exxon Research & Engineering Co. (1987, CA3) 808 F2d
Footnote 1. Holenka v Gold Circle (1983, ND Ohio) 35 BNA FEP Cas 621, affd (CA6)
745 F2d 56, 37 BNA FEP Cas 1072.
Footnote 2. Foster v National Bank of Bossier City (1988, CA5) 857 F2d 1058, 48 BNA
Footnote 3. Bihler v Singer Co. (1983, CA3) 710 F2d 96, 32 BNA FEP Cas 66, 32 CCH
EPD 33685.
Footnote 4. Clark v Coats & Clark, Inc. (1989, CA11) 865 F2d 1237, 10 EBC 2039, 49
Footnote 5. Steffen v Meridian Life Ins. Co. (1988, CA7) 859 F2d 534, 48 BNA FEP Cas
Footnote 6. Wheeldon v Monon Corp. (1991, CA7) 946 F2d 533, 57 BNA FEP Cas 276,
57 CCH EPD 41055.
1400 Where to file charge or complaint

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Complaints and charges may be submitted to: (1) a District or Area Office of the EEOC;
(2) the EEOC headquarters in Washington, D.C., or (3) any designated representative of
the EEOC, 7 such as a state or local fair employment practices agency which has
entered into an agreement with the EEOC to receive charges and complaints. 8
Footnotes
1401 No waiver of the right to file a charge

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Effective October 16, 1990, 9 the Older Workers Benefit Protection Act amendments to
the ADEA provide that a waiver agreement under the act cannot affect the EEOC's rights
and responsibilities to enforce the law, and may not be used to justify interfering with an
employee's right to file an EEOC charge or to participate in an EEOC investigation or
proceeding. 10
Observation: A distinction exists between an employee's right to bring an ADEA

suit in court to recover damagesa right which can be waivedand the employee's right
to file an EEOC charge, which is protected and cannot be waived.
Footnotes
1402 Counseling the charging party or complainant

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Before an individual files a charge, the Equal Employment Opportunity Specialist (EOS)
will first explain ADEA coverage. 11 The EOS then explains that the sole purpose of an
ADEA charge is to preserve the private suit rights of all persons aggrieved by the
conduct alleged in the charge, because the EEOC can conduct investigations and bring
suit on its own initiative. Therefore, if the charging party believes that other persons were
harmed by the conduct alleged in the charge, he should include a general statement to
that effect even if he cannot specifically identify those persons. 12
After a charge has been filed, an EOS will inform the charging party that:
it is the charging party's responsibility to keep the Commission informed as to his
whereabouts;
the Commission will determine the appropriate method of processing the charge;
settlement will be attempted by the Commission. 13
An EOS will inform a potential complainant that his or her identity will remain
confidential, pursuant to Commission policy, unless written permission for disclosure is
obtained. 14
Footnotes
1403 Assistance in preparing charge

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Where information received discloses a possible violation, the EEOC can assist the
informant in filing a formal charge of age discrimination. 15 Oral charges are reduced
to writing by the Commission. 16
Footnotes
1404 Serving notice of charge on respondent

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The respondent named in a charge is entitled to prompt notice from the EEOC that a
charge has been filed. 17 The EEOC informs the respondent of the charging party's
identity when the charge is served, as appropriate after the charging party's intentions
regarding disclosure of his identity has been determined. 18 The EEOC may also send a
copy of the charge itself to the respondent, 19 unless the charge was filed on behalf of an
aggrieved person who wishes to remain anonymous 20 and the charge contains
information that could identify him. 21
1404 ----Serving notice of charge on respondent [SUPPLEMENT]
Case authorities:
Party not named in charge already filed with EEOC may not be sued under ADEA unless
that party had adequate notice of charge and was given opportunity to participate in
conciliation proceedings. Vakharia v Little Co. of Mary Hosp. & Health Care Ctrs.
(1996, ND Ill) 917 F Supp 1282, 1996-1 CCH Trade Cases 71377.
Footnotes
Footnote 17. 29 USCS 626(d); 29 CFR 1626.11.
Footnote 19. EEOC Compliance Manual 3.5
Footnote 20. 1382.
1405 Amendment of charge

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A charge may be amended to clarify or amplify the allegations or to allege additional
unlawful employment practices related to, or growing out of, the subject matter of the
original charge. 22 Amended charges will not be referred again to a state referral
agency by EEOC. 23
Footnotes
As to the timeliness of amended charges, see 1418.
1406 Request to withdraw charge

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The person who filed a charge may request its withdrawal. However, since the EEOC has
independent investigative authority, it may continue any investigation and may secure
relief for all affected persons notwithstanding the request. 24
While the Commission will generally honor a charging party's request to withdraw, it will
not do so when the request results from retaliation by the respondent, or when granting
the request would otherwise defeat the purposes of the law. 25
State aspects: Withdrawal of an age discrimination charge with the EEOC will not
necessarily constitute a withdrawal of the same charge with a state or local referral
agency, or vice versa. If the charging party intends this result, separate withdrawals
should be submitted to the state agency and the EEOC, with reference to their
respective charge or docket number identifications.
Footnotes
Footnote 24. 29 CFR 1626.13.
1407 Reasons for dismissal of charge or complaint

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The EEOC may terminate the administrative processing of an ADEA charge or complaint
at any time prior to or during an investigation when:
the charging party or complainant files suit in federal court; 26
the charging party or complainant cannot be located or refuses to cooperate in the
further processing of the charge or complaint; 27
no violation of the ADEA is apparent from the information gathered; 28
the EEOC determines that there is no jurisdiction under the ADEA; 29
the alleged violation occurred more than two years before the investigation commenced;
30
the charging party refuses to accept a settlement offer which affords full relief. 31
Footnotes

1408 Required administrative processing prior to suit

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No charging party may bring suit under the ADEA unless his or her charge has been filed
with the EEOC and a state referral agency for at least 60 days (or for 120 days in the first
year of the state's anti-age discrimination legislation) unless administrative proceedings
on the charge are terminated sooner than that. 32
A failure to file with the appropriate state agency will not result in a dismissal of the suit.
Instead, the suit will be held in abeyance until 60 days (or 120 where appropriate) after
the required state proceedings have been commenced, or until the state terminates its
administrative processing of the charge, whichever is earlier. 33
EEOC regulations state that charging parties will be notified of the required 60-day
waiting period between the filing of a charge and instituting suit. 34
1408 ----Required administrative processing prior to suit [SUPPLEMENT]
Case authorities:
Single filing rule (which allows administrative charge of one plaintiff to satisfy charge
filing obligations of other plaintiffs) is not limited to class actions, but also can permit
plaintiff to join individual ADEA actions if named plaintiff filed timely administrative
charge sufficient to permit piggybacking by joining plaintiff. Howlett v Holiday Inns
(1995, CA6 Tenn) 49 F3d 189, 67 BNA FEP Cas 289.
In order to constitute charge, notice to EEOC must be of kind that would convince
reasonable person that plaintiff manifested intent to activate ADEA's machinery; in
assessing whether plaintiff manifested such intent, district court may consider whether
EEOC intake questionnaire is precise enough to identify parties and generally describe
complained-of practices, and whether information in questionnaire was subsequently
used to complete formal charge. Downes v Volkswagen of Am. (1994, CA7 Ill) 41 F3d
1132.
Footnotes
Footnote 32. 29 USCS 626(d), 633(b).
Footnote 33. Oscar Mayer & Co. v Evans (1979) 441 U.S. 750, 60 L Ed 2d 609, 99 S
1409 Right to sue notices not required

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Unlike under Title VII, a charging party does not need a right to sue notice 35 from the
EEOC in order to file a federal suit under the ADEA, as long as the charge in issue has
been filed with the Commission and a state referral agency (if applicable) for the
appropriate time period. 36
1409 ----Right to sue notices not required [SUPPLEMENT]
Case authorities:
Plaintiff need not receive notice of right to sue letter from EEOC prior to bringing civil
suit under ADEA; 29 USCS 626(e) merely provides that, in event that right to sue
letter is issued, claimant must bring civil action within 90 days after receipt of letter.
Weaver v Ault Corp. (1993, ND Tex) 859 F Supp 256, 64 BNA FEP Cas 979.
Footnotes
1410 Appeal of no cause determination

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The EEOC permits charging parties to appeal no cause determinations, and it has
developed procedures and an Office of Program Operations in Washington, D.C. to
review these appeals. 37 However, a charging party need not request an appeal and, if all
administrative procedures have been complied with, he may file a federal ADEA action
without waiting for the appeal period to expire. 38
Footnotes
Footnote 37. EEOC Compliance Manual 18, 21.25.
Footnote 38. EEOC Policy Statement on No Cause Findings, 12/15/86.
1411 Required notification by EEOC to charging party after dismissal of charge

or other termination of proceedings
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As amended by the Civil Rights Act of 1991, 39 the ADEA provides that where an age
discrimination charge filed with the EEOC is dismissed or the proceedings are otherwise
terminated by the EEOC, the EEOC must notify the charging party, who may then bring
a civil action against the respondent named in the charge within 90 days after having
received such notice from the EEOC. 40
Footnotes
Footnote 39. P.L. 102-166, 115.
(3). Timeliness of Filing [1412-1416]
1412 Generally
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Go to Supplement
Under the ADEA, 41
a charge must be filed with the EEOC:
within 180 days after the occurrence of the alleged unlawful act in a nonreferral
jurisdiction; 42
in a referral jurisdiction, 43 within 300 days after the alleged unlawful practice
occurred, or 30 days after the charging party receives notice of the termination of state
proceedings, whichever is earlier. 44
Some courts have held that the 180-day charge filing period, and not the 300-day period,
applies where the claimant does not file a timely state charge 45 or the state agency
lacks enforcement power over the charge. 46 Furthermore, the ADEA time limits may
be suspended for various reasons. 47 Moreover, in instances where the discriminatory
practice is "continuing" in nature, the time period may not begin at all when the
discriminatory act first occurs. 48
Nevertheless, an individual's departure from ordinary filing principles and procedures
may result in a ruling that charges in particular cases were untimely. For example, the
timely filing of ADEA charges by two employees did not constitute a timely filing by
three others with similar charges where several discrete acts of promotion by the
employer were at issue. 49 Also, although the plaintiffs had filled out "intake" forms at
the EEOC office within the ADEA's prescribed filing period, their charges were untimely
because they had told the EEOC not to act on the form until further notice from them,
and that further notice was not timely. 50
While charges are required to be filed within the specified time frames to preserve the
right of any "aggrieved" person to bring a private action, information received from filed
charges, whether timely or not, may still form the basis of an EEOC-initiated suit.
Therefore, a charge will not be rejected by the EEOC as untimelyunless it is barred by
the statute of limitations for court proceedings. 51
Caution: The time limitations for filing a valid ADEA charge with the EEOC or a
state referral agency should not be confused with the two-year (three years if the
charge is a willful violation) statute of limitations for filing suit in federal district court.
52
The EEOC's regulations require the Commission to notify charging parties and
complainants of the time periods within which a charge must be filed. 53
Case authorities:
Early issuance of notice of right to sue based on EEOC's certification that it will be
unable to process charge within 180 days does not preclude Title VII claimant from filing
action in federal court; thus, complainant is not barred from bringing action in federal
district court until 180 days after filing his or her charge with EEOC. Sims v MacMillan
(1994, CA11 Ga) 22 F3d 1059, 64 BNA FEP Cas 1766, 8 FLW Fed C 287.
Footnotes
Footnote 41. 29 USCS 626(d); 29 CFR 1626.7(b).
Footnote 42. 1413.

Footnote 43. 1394.
Footnote 44. 1414.
Footnote 45. 1415.
Footnote 46. 1416.
Footnote 48. 1424.
Footnote 49. Fressell v AT&T Technologies (1984, ND Ga) 35 BNA FEP Cas 658, 34
CCH EPD 34471.
Footnote 50. Fletcher v McLean Trucking Co. (CA4) No. 85-1489, 1/28/86.
Footnote 52. For a discussion of statute of limitations concerns under the ADEA,
including circumstances under which the statute is tolled, see 2192 et seq.
1413 In nonreferral jurisdictions; 180-day filing period

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In nonreferral jurisdictions, an individual must file his charge with the EEOC or its
designated agent within 180 days of the alleged unlawful act. 54
Footnotes
1414 Alternate 300- and 30-day filing periods in referral jurisdictions

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Go to Supplement
If the alleged unlawful act occurred in a state with an agency that has the authority to
grant or seek relief from age discrimination, the charge must be filed within 300 days of
the unlawful act or 30 days after the charging party's receipt of notice that the state
proceedings have terminated, whichever comes first. 55
1414 ----Alternate 300- and 30-day filing periods in referral jurisdictions
[SUPPLEMENT]
Case authorities:
Federal employee's age discrimination action is governed by 30-day statute of limitations
(borrowed from 42 USCS 2000e-16), rather than six-year federal catch-all limitations
period. Long v Frank (1993, ED NY) 813 F Supp 969, 61 BNA FEP Cas 273.
Footnotes
1415 Effect of untimeliness of state charge

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It has frequently been have held that the filing of an untimely age discrimination charge
at the state level does not preclude the availability of the ADEA's 300-day federal charge
filing period. 56
Observation: The cited cases were all decided in the context of a requirement that a
charging party file a "notice of intent to sue," which was omitted when the ADEA was
amended in 1978. The current law replaces that requirement with the requirement to
file a charge, and there is no reason to believe that this change affects the 180- or
300-day time limitation issue.
Such holdings have been based on reasoning that the Supreme Court, in its Oscar Mayer
decision, 57 ruled that state limitations are irrelevant for the purpose of commencing a
state proceeding, as set forth under the ADEA; 58 and that the implication of Supreme
Court's Mohasco decision, 59 that Title VII's 300-day charge filing period is available
to a claimant who does not file a state charge within 180 days of the alleged
discriminatory act, "compels" the conclusion that the ADEA's extended 300-day period is
also available to an ADEA claimant who does not file a timely state charge. 60
Footnotes
Footnote 56. First CircuitCiccone v Textron, Inc. (1981, CA1) 651 F2d 1, 26 BNA
Third CircuitDavis v Calgon Corp. (1980, CA3) 627 F2d 674.
Fourth CircuitLang v International Harvester Co. (1983, DC Md) 33 BNA FEP Cas
603.
Seventh CircuitAnderson v Illinois Tool Works, Inc. (1985, CA7) 753 F2d 622, 36
Ninth CircuitBean v Crocker Nat. Bank (1979, CA9) 600 F2d 754, 20 BNA FEP Cas
533, 20 CCH EPD 30092; Aronsen v Crown Zellerbach (1981, CA9) 662 F2d 584, 27
Tenth CircuitAronson v Greesly (1992, CA10) 961 F2d 907, 58 BNA FEP Cas 859, 58
CCH EPD 41390.
Footnote 58. Bean v Crocker Nat. Bank (1979, CA9) 600 F2d 754, 20 BNA FEP Cas
533, 20 CCH EPD 30092; Stoecklein v Illinois Tool Works, Inc. (1984, ND Ill) 589 F
Footnote 60. Ciccone v Textron, Inc. (1981, CA1) 651 F2d 1, 26 BNA FEP Cas 30, 25
Cas 120, 26 CCH EPD 31880.
1416 Applicable filing period when referral agency lacks enforcement power
View Entire Section
The courts have divided over whether the ADEA's 300- or 180-day charge filing period
applies, where an age discrimination charge arises in a state that has a state law
prohibiting age-based employment discrimination and an agency empowered to grant or
seek relief, but not to the particular claimant. For instance, one court ruled that the
ADEA's 300-day, and not its 180-day, charge filing period applied to Wisconsin deputy
sheriffs challenging their mandatory age-55 retirement, although the state's age
discrimination law specifically excepted individuals in hazardous occupations, including
law enforcement personnel. The 300-day filing period applied because Wisconsin was a
referral jurisdiction with both an age discrimination law at least potentially applicable to
the claimants and an agency to enforce the law. 61 Furthermore, a charging party is
entitled to the 300-day limitations period available in referral states even if the state
agency was created after the discriminatory act occurred. 62
On the other hand, some courts have ruled that the 180-day charge filing period applied
where the respondent was not an "employer" as defined under the state's age
discrimination law. 63 Similarly, an employee was only entitled to the 180- and not the
300-day period where the state did not become a referral state until after the employee's
termination. 64
The ADEA's 300-day charge filing period has been held not to apply where the alleged
discrimination occurred in one state and the charge was filed in another. 65
Footnotes
Footnote 61. Heiar v Crawford County (1984, CA7) 746 F2d 1190, 35 BNA FEP Cas
1458, 35 CCH EPD 34614, amd (CA7) 36 BNA FEP Cas 112.
Footnote 62. Blumberg v HCA Management Co. (1988, CA5) 848 F2d 642, 47 BNA FEP
Footnote 63. Davis v Boy Scouts of America (1978, DC NJ) 457 F Supp 665, 17 BNA
FEP Cas 1546, 18 CCH EPD 8662; Keitz v Lever Bros. Co. (1983, ND Ind) 563 F
Footnote 64. Schultz v Dempster Systems, Inc. (1983, ED Tenn) 561 F Supp 1230, 32
BNA FEP Cas 1766.
Footnote 65. Priest v Seaway Food Town, Inc. (1982, ED Mich) 543 F Supp 1355, 29
(4). When Charge is Deemed Filed [1417, 1418]
1417 Generally
View Entire Section
Oral charges are considered filed on the day they are communicated to the EEOC, not the
day they are reduced to writing. 66 Written charges filed in person are considered filed
on the date they are received by the EEOC. 67
If written charges are mailed, they are considered filed on the date postmarked, if legible.
If the postmark is not legible, the date of the letter is deemed the date of filing. If neither
the dates of the postmark or the letter can be accurately determined, the mailed charge is
considered filed when received by the EEOC. 68
Footnotes
Footnote 66. 29 CFR 1626.7(c)(3).
Footnote 67. 29 CFR 1626.7(c)(2).
Footnote 68. 29 CFR 1626.7(c)(1).
1418 Amended charges

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An amended charge 69 relates back to the date the initial charge was filed with the
EEOC and will, therefore, be timely if the initial charge was timely filed. 70
If a charge is filed under one statute and the EEOC believes that the alleged
discrimination constitutes an unlawful employment practice under another statute (which
it also administers and enforces), the charge may be amended and it will be considered
filed on the date the original charge was filed. 71
Relation back is not applicable to an attempt to amend a charge that was previously
withdrawn. Because there is nothing for the "amendment" to relate back to, it must be
considered a new charge. 72
Footnotes
Footnote 69. 1405.
Footnote 71. 29 CFR 1626.19(c).
Footnote 72. Dalessandro v Monk (1988, SD NY) 46 BNA FEP Cas 1324, 47 CCH EPD
38292, revd, in part on other grounds (CA2) 864 F2d 6, 48 BNA FEP Cas 912, 48 CCH
EPD 38510.
(5). Limitations; When Filing Period Begins [1419-1425]
1419 Discriminatory act as trigger

View Entire Section
The occurrence of an alleged unlawful acttriggers the start of the administrative charge
filing period under the ADEA. 73
For example, courts have determined that the beginning of the time limitations period for
filing ADEA charges began:
for a termination, when a layoff became permanent, at the time of the initial layoff,
regardless of the likelihood of recall or the conditions under which it was made. 74
for a denial of promotion, when the faculty committee's decision not to promote the
charging party became final, not when she learned of the initial decision. 75 The ADEA
limitations period also began to run when an employee was terminated, not when he
received a negative performance evaluation notifying him that unless his performance
improved, he would be subject to demotion, reassignment, or termination. The
evaluation was tentative, subject to revision, had no immediate employment impact, and
did not alert the employee to the possibility that he would be subject to termination
without an opportunity to improve his performance. 76
The similar filing provision in Title VII, 77 and the cases construing it, 78 can be used
to interpret the ADEA provision. 79
Footnotes
Footnote 74. Nogar v Henry F. Teichmann, Inc. (1985, WD Pa) 640 F Supp 365, 44 BNA
Footnote 75. Gona v College of Medicine & Dentistry (1985, DC NJ) 41 BNA FEP Cas
1698, 37 CCH EPD 35422.
Footnote 76. Colgan v Fisher Scientific Co. (1991, CA3) 935 F2d 1407, 56 BNA FEP
Footnote 77. 1420.
1420 Employee's notice of discriminatory act

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Like the ADEA, 80 Title VII specifies that the occurrence of a discriminatory act
triggers the charge filing period. 81 In its Ricks decision, the Supreme Court interpreted
the Title VII provision to mean that the charge filing period begins to run when the
alleged discriminatory act occurs and the victim has notice of it. 82
Since the Ricks
decision 83 has frequently been applied in ADEA cases, 84 the principles governing
the onset of the Title VII filing period 85 should be examined when a similar ADEA
problem arises.
Contrary to the position taken by most other circuits, the Fourth Circuit has held that the
ADEA limitations period begins to run at the time of the employer's adverse action,
although the plaintiff did not learn about his pay discrimination claim until he engaged in
discovery in a discharge discrimination suit. 86
Observation: Hamilton is contrary to the Title II rule in Ricks, which is applied by

most circuits in ADEA claims, and, therefore, is unlikely to be followed outside of the
Fourth Circuit.
1420 ----Employee's notice of discriminatory act [SUPPLEMENT]
Case authorities:
Cause of action accrues under ADEA on date employee is notified of adverse
employment decision. Hulsey v Kmart, Inc. (1994, CA10 Okla) 43 F3d 555, 66 BNA
FEP Cas 1327.
Footnotes
Footnote 80. 1419.
Footnote 83. The facts of Ricks are fully stated in 1298.
BNA FEP Cas 1856, 31 CCH EPD 33362; Lutz v Association Films, Inc. (1982, SD
NY) 552 F Supp 985, 31 BNA FEP Cas 163; EEOC v Kimberly-Clark Corp. (1981, ND
Ga) 531 F Supp 58, 27 BNA FEP Cas 1751, 29 CCH EPD 32737; Mogley v Chicago
Title Ins. Co. (1983, ED Mo) 553 F Supp 1045, 30 BNA FEP Cas 1340, 31 CCH EPD
33454, affd (CA8) 719 F2d 289, 33 BNA FEP Cas 10, 32 CCH EPD 33861.
Footnote 86. Hamilton v 1st Source Bank (1990, CA4) 928 F2d 86, 54 BNA FEP Cas
1019, 55 CCH EPD 40466.
1421 Employee's imputed knowledge of discriminatory act

View Entire Section
As in Title VII cases, some ADEA decisions have applied, as an alternative to the Ricks
-style notice formulation, 87 the rule that the ADEA charge filing period commences
when the complainant knows, or reasonably should know, that the discriminatory act has
occurred. 88 It has been said that the types of objective manifestations from which such
knowledge can be imputed are unlimited. 89
Under this standard, courts have ruled
that the ADEA charge filing period began:
no later than when the employee turned in his company credit cards and travel
authorization and no longer performed work for the employer; 90
when the employee received notice that his office would be closed and he was given the
option of early retirement, with benefits calculated as of the office closing date, or
remaining on the payroll for several more months and receiving increased retirement
benefits, provided that he released the company from future liability, and not when he
made his choice. 91
Footnotes
Footnote 87. 1420.
Footnote 88. Downie v Electric Boat Div. (1980, DC Conn) 504 F Supp 1082, 24 BNA
FEP Cas 1144, 25 CCH EPD 31676.
Footnote 90. Payne v Crane Co. (1977, CA5) 560 F2d 198, 16 BNA FEP Cas 516, 15
CCH EPD 7859.
Footnote 91. Mogley v Chicago Title Ins. Co. (1983, CA8) 719 F2d 289, 33 BNA FEP
Cas 10, 32 CCH EPD 33861.
1422 Employee's belief that act was discriminatory

View Entire Section
Notice or knowledge of a personnel decision is only one part of the equation for
determining when an alleged discriminatory act has occurred. The other part is the
victim's belief that the employer's decision is discriminatory. An employee may receive
unequivocal notice of a personnel decision and not have any immediate suspicion that the
decision was motivated by unlawful considerations. It is only when suspicions arise that
the charge filing period commences. 92
The degree of belief necessary to trigger the charge filing period has occasionally been at
issue. The victim does not have to possess "convincing evidence" that the employer's
acts are discriminatory. Thus, one court said that the administrative charge filing period
did not begin when the victim gained what he later claimed to be "solid evidence" of
discrimination that changed his earlier subjective belief of discrimination into a
"conviction." Instead, the court ruled that the filing period began at the earlier point,
when the employer communicated an adverse personnel decision to the plaintiff and the
plaintiff believed that the decision was based on his age. 93 Similarly, an employee who
is aware that she is being replaced in a position she believes she is qualified to perform
by a person outside the protected age group knows enough to support filing a claim,
which is enough information to start the running of the limitations period. 94
Footnotes
Footnote 93. Tobin v Trans Union Systems Corp. (1980, ED Pa) 488 F Supp 622, 27
Footnote 94. Blumberg v HCA Management Co. (1988, CA5) 848 F2d 642, 47 BNA FEP
48 BNA CCH FEP Cas 1088, 48 CCH EPD 38574.
1423 Age-based exclusion from pension coverage

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Go to Supplement
An employee's age discrimination complaint based on his exclusion from pension plan
coverage until ERISA made inclusion mandatory was not time barred, since the cause of
action did not arise until the employee's retirement, at which time the employer first
decided the employee's status and benefit entitlement. 95
1423 ----Age-based exclusion from pension coverage [SUPPLEMENT]
Practice Aids: Dual liability: The growing overlap of the Age Discrimination in
Employment Act and Section 510 of the Employee Retirement Income Security Act,
58 Albany LR 2:509-542 (1995).
Footnotes
Footnote 95. Crosland v Charlotte Eye, Ear & Throat Hospital (1982, CA4) 686 F2d 208,
1424 Continuing violations

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The "continuing violations" doctrine, developed in Title VII cases, 96 applies in ADEA
cases. In an ADEA case, a continuing violation may exist when: (1) the employer's
decision-making process occurs over time, making it difficult to pinpoint the exact date
of a violation; (2) an employer's open and express policy is allegedly discriminatory; and
(3) where the challenged practice is shown only by a series of discrete, allegedly
discriminatory acts. An employer may be held liable for the continuing practice of
discrimination if the plaintiff can demonstrate that the practice has continued into the
present, with at least one discriminatory act occurring within the charge-filing period. 97
A continuing violation of the ADEA based on an employer's ongoing policy or practice
was found:
in a demotion case, where the employer had a continuing policy or practice of age
discrimination against older employees from the time of the claimant's first demotion
until his second demotion two years later. 98
in a retirement case, where the employer's acts were all part of an overall plan to force
the plaintiff into voluntary or involuntary retirement, notwithstanding evidence of
legitimate business explanations for each of the individual acts. 99
However, a continuing violation was not found:
with respect to discharge, where all subsequent actions merely constituted repeated
requests by the employee for further relief from the termination. 1

in an involuntary retirement case, since the mere continuity of employment from the
date the plaintiff became aware of his impending retirement under the employer's policy
to his last day of work was not sufficient to continue the time limitations period for filing
a charge. 2
in a promotion case involving a series of supervisory jobs, when the positions were in
different units and selection decisions were based on different criteria and were made by
different supervisors. 3 Furthermore, allegations in an EEOC charge concerning an
illegal age-based layoff did not encompass an allegation of an unlawful failure to rehire,
since a layoff is a completed act at time it occurs, and the failure to recall is not a
continuing violation. 4
Footnotes
Footnote 97. O'Donnell v Heublein, Inc. (1990, ND Ill) 1990 US Dist LEXIS 1263.
Footnote 98. Taylor v Home Ins. Co. (1985, CA4) 777 F2d 849, 39 BNA FEP Cas 769,
FEP Cas 1512, 40 CCH EPD 36117.
Footnote 99. Bruno v Western Electric Co. (1987, CA10) 829 F2d 957, 44 BNA FEP Cas
1419, 44 CCH EPD 37406.
Footnote 1. Janikowski v Bendix Corp. (1987, CA6) 823 F2d 945, 47 BNA FEP Cas 544,
43 CCH EPD 37221.
Footnote 2. O'Malley v GTE Service Corp. (1985, CA2) 758 F2d 818, 37 BNA FEP Cas
697, 36 CCH EPD 35104.
Footnote 3. Samuel v Merrill Lynch Pierce Fenner & Smith (1991, SD NY) 771 F Supp
47.
Footnote 4. Lawson v Burlington (1982, CA4) 683 F2d 862, 29 BNA FEP Cas 1224, 29
Cas 1752, 30 CCH EPD 33091 (holding that each allegedly discriminatory recall
constituted a separate and completed act triggering a new filing period; summary
judgment was proper where the complaint was filed more than 180 days after layoff and
did not encompass the failure to rehire).
1425 Premature charges

View Entire Section

While most challenges to the timeliness of complaints of age discrimination are leveled at
charges that allegedly come too late, the question has been raised whether a charge can
be made too early. Thus, where the paintiff filed an EEOC charge after a dispute had
arisen with his employer but before he was discharged, the court held that the charge was
not premature where it was filed within a reasonable time before suit was commenced
and the defendants did not allege that they were prejudiced by receiving the notice in
advance of the actual job termination. 5
Footnotes
Footnote 5. Anisgard v Exxon Corp. (1975, ED La) 409 F Supp 212, 14 BNA FEP Cas
620, 12 CCH EPD 11099.
(6). Tolling; Equitable Modification of Charging Period [1426-1436]
1426 Tolling and estoppel

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Go to Supplement
The charge filing period under the ADEA is subject to equitable modification through
tolling and estoppel. Tolling focuses on the claimant's "excusable ignorance" of the
charge filing period and the lack of prejudice to the respondent. 6
Among the factors to be considered in determining the appropriateness of tolling the
charge filing period are:
the claimant's lack of actual or constructive knowledge of the filing requirement; 7
the reasonableness of the claimant's remaining ignorant of the filing requirements;
the claimant's diligence in pursuing his rights;
the absence of prejudice to the defendant; 8
the extent to which the limitations period's purpose has been satisfied, notwithstanding
the filing delay. 9
Estoppel, on the other hand, is directed toward the acts of the respondent that may have
caused the claimant to file an untimely charge. 10 by lulling the claimant into inaction.
11 Factors considered in determining whether the defendant may be estopped from
asserting the defense of the statute of limitations include:
a showing that the plaintiff actually and reasonably relied on the defendant's
representations;
a showing of the defendant's improper motive, or the defendant's actual or constructive
knowledge of its conduct's deceptive nature;
the extent to which the limitations period's purpose has been satisfied, notwithstanding
the filing delay. 12
However, some courts seem to have melded the two doctrines and have viewed the issue
in terms of both tolling and the suspension of the charge filing period. 13
Observation: The following discussion 14 focuses on acts that suspend the charge
filing period under the ADEA. Consequently, no distinction is made between the two
doctrines, and the two are viewed from the standpoint of tolling. However, in
preparing pleadings and briefs, the tolling and estoppel may be viewed as separate and
distinct.
1426 ----Tolling and estoppel [SUPPLEMENT]
Case authorities:
ADEA's statute of limitations is tolled for eligible class members by initial filing of
representative complaint, as long as representative nature of action is clear on complaint's
face. Sperling v Hoffmann-La Roche, Inc. (1994, CA3 NJ) 24 F3d 463, 64 BNA FEP Cas
910, 64 CCH EPD 43011.
ADEA plaintiff's request for EEOC to reconsider its determination of no reasonable
cause to believe that employer discriminated against plaintiff does not toll ninety-day
period for filing civil suit until EEOC subsequently denies plaintiff's request for
reconsideration. McCray v Corry Mfg. Co. (1995, CA3 Pa) 61 F3d 224, 68 BNA FEP
Cas 821, reh, en banc, den (1995, CA3) 1995 US App LEXIS 25616.
Although ADEA suit based upon untimely EEOC charge should be dismissed, fling
deadline is subject to equitable tolling when necessary to effect remedial purpose of
ADEA; equitable tolling focuses of excusable ignorance of employer's discriminatory
act, not on any possible misconduct by employer. Davis v Ceco Bldg. Sys. (1993, ND
Miss) 813 F Supp 1202.
ADEA, which provides for attorney's fees only to prevailing plaintiffs, does not preempt
application of Equal Access to Justice Act (28 USCS 2412) to ADEA case brought by
EEOC. EEOC v O & G Spring & Wire Forms Specialty Co. (1994, CA7 Ill) 38 F3d 872,
Conciliation by EEOC, combined with extension for willful violations, may extend
ADEA statute of limitations for total of four years. EEOC v Park Ridge Pub. Library
(1994, ND Ill) 856 F Supp 477, 65 BNA FEP Cas 462.
Statute of limitations will be postponed from date of accrual only if reasonable person in
ADEA plaintiff's position would not have known that he or she had been injured;
similarly, ADEA plaintiff who invokes equitable tolling to suspend statute of limitations
must bring suit within reasonable time after he or she has obtained, or by due diligence
could have obtained, necessary information. Antos v Bell & Howell Co. (1995, ND Ill)
891 F Supp 1281, 68 BNA FEP Cas 847.
Constructive discharge, being discriminatory act itself that gives rise to age
discrimination claim, should not be treated differently from any other adverse
employment decision for statute of limitations purposes; consequently, constructive
discharge, in and of itself, does not rise to level of active concealment required to
equitably toll statute of limitations. Hulsey v Kmart, Inc. (1994, CA10 Okla) 43 F3d 555,
Footnotes
Footnote 6. Naton v Bank of California (1981, CA9) 649 F2d 691, 27 BNA FEP Cas 510,
26 CCH EPD 31824.
Annotation: Equitable considerations as modifyimg, through tolling or estoppel, time
limitations of ADEA (29 USCS 626(d)) for filing charge with Equal Employment
OPportunity Commission, 110 ALR Fed 377.
Footnote 7.
Caution The employee's ignorance, in and of itself, will not excuse a failure to timely
file. See 1430.
Footnote 8. Abbott v Moore Business Forms, Inc. (1977, DC NH) 439 F Supp 643, 15
Footnote 9. Naton v Bank of California (1981, CA9) 649 F2d 691, 27 BNA FEP Cas 510,
26 CCH EPD 31824.
Footnote 10. Naton v Bank of California (1981, CA9) 649 F2d 691, 27 BNA FEP Cas
510, 26 CCH EPD 31824.
Footnote 11. Kazanzas v Walt Disney World Co. (1983, CA11) 704 F2d 1527, 31 BNA
Footnote 12. Naton v Bank of California (1981, CA9) 649 F2d 691, 27 BNA FEP Cas
510, 26 CCH EPD 31824.
Footnote 13. Lawson v Burlington (1982, CA4) 683 F2d 862, 29 BNA FEP Cas 1224, 29
Cas 1752, 30 CCH EPD 33091.
1427 Employer's failure to post ADEA notices

View Entire Section
Many courts have ruled that the ADEA charge filing period is tolled by the employer's
failure to post conspicuously the statutorily-required notice of coverage, 15 until the
claimant either obtains the advice of counsel or has actual knowledge of his rights under
the Act. 16
However, one court has held that failure to post the ADEA notice
tolls the charge filing period until the claimant has "general knowledge" of the right not
to be discriminated against on the basis of age, or the "means of obtaining that
knowledge." The court defined "means of obtaining that knowledge" as consultation
with an attorney or other acts, such as seeing an ADEA poster "somewhere outside the
place of work." 17
While the employer's failure to post notices may toll the period for filing charges until a
claimant retains a lawyer, the period will not be tolled if the attorney was hired before the
expiration of the filing period. 18
Observation: Some courts have taken the position that the mere employment of
counsel does not necessarily prevent tolling. 19
A number of courts have ruled that tolling was inappropriate in the particular case where
the claimant had actual knowledge of the charge filing requirements. 20 In addition, the
"general knowledge" needed to prevent tolling the time period for failure to post ADEA
notices does not require that the claimant be specifically aware of the 180-day filing
deadline. 21 Thus, the EEOC-approved notices are adequate to inform an employee of
his rights, and do not toll the filing period merely because they do not explicitly indicate
what the filing period is. 22
As long as the notices are posted adequately, the filing period will not be tolled merely
because they were not posted in the claimant's work area. 23 For instance, where an
employee worked primarily out of his home but made a monthly trip to corporate
headquarters where notices were posted, tolling was not warranted whether or not he saw
the notices. 24
When there was evidence that an employer posted the required ADEA notices, tolling of
the filing period was not permitted since a claimant's "general knowledge" of the law was
demonstrated by the fact that:
he was a supervisor required to be acquainted with the posted information; 25
he was an attorney, although he may have had no experience in equal employment law;
26
he was a vice-president involved in numerous personnel decisions that gave him the
opportunity to learn of the ADEA. 27
Other courts have ruled that tolling of the ADEA's charge filing periods does not
automatically result from the employer's failure to post the required notice of coverage.
Tolling was not appropriate where the plaintiff:
merely alleged that he could not recall seeing the notice; 28
was himself the employee responsible for posting the notice. 29
In addition, one court held that tolling did not result from a simple failure to post the
notice without any intent to mislead the claimant. 30 However, an ADEA claim was not
time-barred where the employer posted notices that may have provided adequate or better
information than that required by the ADEA, despite the fact that the employer had failed
to post notices prepared or approved by the EEOC. 31
Footnotes
Footnote 16. First CircuitSkoglund v Singer Co. (1975, DC NH) 403 F Supp 797, 12
Second CircuitPirone v Home Ins. Co. (1981, SD NY) 507 F Supp 1281, 28 BNA FEP
Cas 756, affd without op (CA2) 742 F2d 1430.
Third CircuitBonham v Dresser Industries, Inc. (1977, CA3) 569 F2d 187, 16 BNA
FEP Cas 510, 115 BNA LRRM 4653, 15 CCH EPD 8028, cert den 439 US 821, 58 L
Ed 2d 113, 99 S Ct 87, 18 BNA FEP Cas 203, 115 BNA LRRM 5079, 17 CCH EPD
8604a.
Fourth CircuitVance v Whirlpool Corp. (1983, CA4) 716 F2d 1010, 32 BNA FEP Cas
FEP Cas 416, 33 CCH EPD 34217 and cert den (US) 81 L Ed 2d 873, 104 S Ct 2678,
Seventh CircuitKephart v Institute of Gas Technology (1978, CA7) 581 F2d 1287, 17
BNA FEP Cas 1461, 17 CCH EPD 8573, later app (CA7) 630 F2d 1217, 23 BNA FEP
Eleventh CircuitKazanzas v Walt Disney World Co. (1983, CA11) 704 F2d 1527, 31
DC CircuitBishop v Jelleff Associates (1974, DC Dist Col) 398 F Supp 579, 7 BNA
Footnote 17. McClinton v Alabama By-Products Corp. (1984, CA11) 743 F2d 1483, 35

Footnote 18. Schroeder v Copley Newspaper (1989, CA7) 879 F2d 266, 50 BNA FEP
Cas 447, 50 CCH EPD 39173.
Footnote 19. 1433.
Footnote 20. Fourth CircuitGreene v Whirlpool Corp. (1983, CA4) 708 F2d 128, 31
Fifth CircuitTempleton v Western Union Tel. Co. (1979, CA5) 607 F2d 89, 21 BNA
Eighth CircuitNielsen v Western Electric Co. (1979, CA8) 603 F2d 741, 20 BNA FEP
Cas 1003, 20 CCH EPD 30219.
Tenth CircuitWilkerson v Siegfried Ins. Agency, Inc. (1982, CA10) 683 F2d 344, 29
Footnote 21. De Brunner v Midway Equipment Co. (1986, CA8) 803 F2d 950, 42 BNA
Footnote 22. Kale v Combined Ins. Co. (1988, CA1) 861 F2d 746, 48 BNA FEP Cas 563,
48 CCH EPD 38446.
Footnote 23. Bomberger v Consolidated Coal Co. (1985, WD Pa) 623 F Supp 89, 39
BNA FEP Cas 908; Clark v Resistoflex Co. (1987, MD La) 665 F Supp 1216, 9 EBC
1318, 44 BNA FEP Cas 817, 45 CCH EPD 37832, affd in part and revd in part on other
grounds (CA5) 854 F2d 762, 10 EBC 1013, 47 BNA FEP Cas 1548, 3 BNA IER Cas
1584, 47 CCH EPD 38326.
Footnote 24. Heideman v PFL, Inc. (1990, CA8) 904 F2d 1262, 53 BNA FEP Cas 92, 53
984, 55 CCH EPD 40449.
Footnote 25. Fressell v AT&T Technologies, Inc. (1984, ND Ga) 35 BNA FEP Cas 658,
34 CCH EPD 34471.
Footnote 26. Pruet Production Co. v Ayles (1986, CA5) 784 F2d 1275, 40 BNA FEP Cas
619, 39 CCH EPD 36035.
Footnote 27. Soderlund v Ben Franklin, Div. of Household Merchandising, Inc. (1986,
Footnote 28. Third CircuitBonham v Dresser Industries, Inc. (1977, CA3) 569 F2d
187, 16 BNA FEP Cas 510, 115 BNA LRRM 4653, 15 CCH EPD 8028, cert den 439
US 821, 58 L Ed 2d 113, 99 S Ct 87, 18 BNA FEP Cas 203, 115 BNA LRRM 5079, 17
CCH EPD 8604a.
Seventh CircuitPosey v Skyline Corp. (1983, CA7) 702 F2d 102, 31 BNA FEP Cas
Cas 152, 32 CCH EPD 33897.
Eighth CircuitHrzenak v White-Westinghouse Appliance Co., etc. (1982, CA8) 682
F2d 714, 29 BNA FEP Cas 1278, 111 BNA LRRM 2335, 29 CCH EPD 32869.
Footnote 29. Adams v Federal Signal Corp. (1977, CA5) 559 F2d 433, 15 BNA FEP Cas
1094, 15 CCH EPD 7839.
Footnote 30. Wilkerson v Siegfried Ins. Agency, Inc. (1982, CA10) 683 F2d 344, 29
Footnote 31. Mason v Allen-Sherman-Hoff Co. (1987, ED Pa) 1987 US Dist LEXIS 155.
1428 Employer's misleading of the claimant

View Entire Section
Courts have excused the untimely filing of an ADEA charge where the employer's
misleading actions resulted in the charging party's lack of sufficient facts on which to
base a claim of unlawful discrimination. For example, the charge filing period was tolled
where the employer misrepresented to a great degree the reasons for discharging the
claimant after the claimant had been terminated from employment. 32
Where an employer has indicated that it will actively try to find a position in the
company for an employee, the ADEA charge-filing period is equitably tolled until it
should become apparent to a "reasonably prudent" person that the employer is no longer
actively pursuing a position. To warrant equitable tolling, employer misconduct is not
required. Instead, the focus is whether an employee demonstrates a reasonably prudent
regard for his rights. 33
In determining whether an estoppel is warranted because of misleading conduct on the
employer's part, an important factor is evidence that the employer had an improper
purpose or actual or constructive knowledge of the deceptive nature of its conduct. Thus,
where the employee admitted that, before leaving the employer, he knew all of the facts
on which he later relied in making his ADEA claim, his allegation that the employer
lulled him into delaying the pursuit of that claim by finding him a temporary job with
another company was meritless, since the employer was not at fault for the late filing of
the claim. 34
In the Seventh Circuit, employees must show both improper conduct by the employer and
reasonable reliance on that improper conduct to invoke the doctrine of equitable estoppel.
Employees who alleged that they were denied the opportunity to participate fully in
employer-provided training, allegedly because of physical limitations, and later were laid
off because they lacked the training, did not show that the employer engaged in any
misconduct that misled them. The employer initially barred the employees from the
training because they were physically unfit for it. Although the employer later permitted
the employees to participate in nonphysical parts of the training, nothing suggested that
the employer changed its opinion that the employees could not complete the training and
could not perform the job. 35
Observation: Some courts take the position that the lack of key facts that would
support a claim of unlawful discrimination is an issue that goes to whether a cause of
action has accrued, and not to whether the charge filing period should be tolled. 36
Footnotes
Footnote 32. Meyer v Riegel Products Corp. (1983, CA3) 720 F2d 303, 33 BNA FEP Cas
165, 32 CCH EPD 33894, cert dismd (US) 79 L Ed 2d 910, 104 S Ct 2144, 34 CCH
EPD 34346.
Footnote 33. Cocke v Merrill Lynch & Co. (1987, CA11) 817 F2d 1559, 43 BNA FEP
Cas 1724, 43 CCH EPD 37145.
Footnote 34. Funk v Sperry Corp. (1988, CA9) 842 F2d 1129, 46 BNA FEP Cas 632, 3
BNA IER Cas 469, 46 CCH EPD 37903, 117 CCH LC 56462, amd, reh den (CA9) 46
BNA FEP Cas 1645, 3 BNA IER Cas 543.
Footnote 35. Hamilton v Komatsu Dresser Industries, Inc. (1992, CA7) 964 F2d 600, 58
BNA FEP Cas 1401, 58 CCH EPD 41478, cert den (US) 59 BNA FEP Cas 1536.
Footnote 36. 1421.
1429 Employer's efforts to soften termination's harshness

View Entire Section
The charge filing period is not tolled by an employer's efforts to soften the blow of a
termination decision, for example, by placing the employee on a leave of absence prior to
termination and stating that it would make every attempt to find a suitable job for him
with the employer, absent acts by the employer that could give rise to equitable estoppel.
37
The charge filing period under the ADEA also was not tolled merely because the
employer offered a plaintiff a minor benefit in mitigation of the discriminatory retirement
provision it was implementing, where the plaintiff was not misled as to the employer's
actions, and there was no negotiation over the provision's implementation. 38
However, under the doctrine of equitable estoppel, representations of potential alternative

employment within a company may toll the statute of limitations. Thus, dismissal of a
charging party's claim was not warranted because the employer's letter had reassured him
that it was trying to locate a new position for him and was not a clear statement of
termination raised sufficient questions of fact as to when the employee actually received
a termination. 39
Footnotes
Footnote 37. Price v Litton Business Systems, Inc. (1982, CA4) 694 F2d 963, 30 BNA
As to estoppel, see 1426.
Footnote 38. Cerbone v International Ladies' Garment Workers' Union (1985, CA2) 768
Footnote 39. McConnell v General Tel. Co. (1987, CA9) 814 F2d 1311, 43 BNA FEP
Cas 887, 42 CCH EPD 36953.
1430 Claimant's ignorance of filing period

View Entire Section
Although the claimant's "excusable ignorance" is one of the focal points of the tolling
doctrine, 40 equitable tolling of the ADEA notice period is not warranted solely by an
employee's own mistake concerning when the period began to run. 41 Furthermore, the
failure of an EEOC intake officer to inform a claimant of the 180-day limit for filing an
age discrimination charge with the Commission did not serve to toll the limitation period.
42 As one court put it, "it is too late in the day to urge the statute's newness." 43
Equitable tolling on the grounds of ignorance of the filing period is not available if the
claimant could have learned of the filing requirements by exercising due diligence. For
example, a claimant could have learned of the filing deadlines from the EEOC notices
posted prominently in the workplace and by asking a coworker who had filed an ADEA
charge about the filing deadlines. 44
Observation: Although ignorance of time limits, without more, may be an

insufficient basis for tolling the charge filing period, it may suffice when linked with
an assertion that the employer failed to post the required notice of coverage. 45
Footnotes
Footnote 40. 1426.
Footnote 41. Wagner v Sperry Univac, Div. of Sperry Rand Corp. (1978, ED Pa) 458 F
Annotation: Equitable considerations as modifying, through tolling or estoppel, time
Opportunity Commission, 110 ALR Fed 377.
Footnote 42. Mitchell v United States Steel (1984, DC Ala) 35 CCH EPD 34712.
Footnote 44. Wheeldon v Monon Corp. (1991, CA7) 946 F2d 533, 57 BNA FEP Cas 276,
57 CCH EPD 41055.
Footnote 45. 1427.
1431 Claimant's fear of retaliation

View Entire Section
Tolling does not arise from a discharged employee's unsubstantiated fear of loss of
extended benefits and job assistance provided by the employer. 46 Tolling was not
granted where the employee merely had a sense of insecurity and a resulting fear that
filing a charge would jeopardize his search for a new job and all ties with the employer
had been severed. 47 However, tolling may be granted if the employer's actions give
rise to the plaintiff's fear of loss of benefits and job search assistance. 48
A plaintiff cannot successfully invoke equitable estoppel to excuse the late filing of an
ADEA charge based on a fear of retaliation unless the employer's conduct was
deliberately designed to delay the filing of a charge. 49 An employer's warning that it
would immediately dismiss an employee rather than provide a generous severance
arrangement if the employee discussed his impending termination might have justifiably
excused an employee from filing a timely ADEA claim because of a fear of retaliation.
However, the employee's late filing was not excused because the employee had discussed
his termination with other employees and attorneys and thus his delay in filing suit did
not in fact result from his former employer's attempted coercion. 50
An employer may be estopped from arguing that an employee's charge was untimely
where the employee, as a condition for receiving severance pay, had to agree not to take
any derogatory, detrimental, or otherwise prejudicial action against the interests of the
employer. This admonition deterred the employee from filing suit or seeking legal
advice for several months. 51 Equitable tolling also applied where the employer
allegedly gave the plaintiffs reason to believe they would be retained, thereby causing
them to delay the filing of their charge until they received definite notice of their
termination. 52
Footnotes
Footnote 46. Kriegesmann v Barry-Wehmiller Co. (1984, CA8) 739 F2d 357, 35 BNA
Footnote 47. Allotta v Chase Manhattan Bank, N. A. (1982, SD NY) 547 F Supp 198, 30
BNA FEP Cas 284.
Footnote 49. Soderlund v Ben Franklin, Div. of Household Merchandising, Inc. (1986,
Footnote 50. Felty v Graves-Humphreys Co. (1987, CA4) 818 F2d 1126, 43 BNA FEP
Cas 1507, 43 CCH EPD 37143.
Footnote 51. Clark v Resistoflex Co., Div. of Unidynamics Corp. (1988, CA5) 854 F2d
Footnote 52. Monnig v Kennecott Corp. (1985, DC Conn) 603 F Supp 1035, 37 BNA
1432 Claimant's illness

View Entire Section
A complaining party's time period for filing an ADEA charge was not tolled by the fact
that he was confused and depressed as a result of having been terminated, as long as there
was no legal finding of incompetency or hospitalization for mental incapacity. 53
Another court ruled that the ADEA's charge filing period could be tolled during the time
that the claimant is adjudged to be mentally unsound or is institutionalized for treatment
of a mental condition or illness, the claimant's action was nonetheless ultimately
dismissed, where he was hospitalized on the 17th day before the end of the charge filing
period but did not file his charge within 17 days after being released from the hospital. 54
Footnotes
Footnote 53. Kerver v Exxon Production Research Co. (1986, SD Tex) 40 BNA FEP Cas
1567, 40 CCH EPD 36172.
Footnote 54. Bassett v Sterling Drug, Inc. (1984, SD Ohio) 578 F Supp 1244, 35 BNA
FEP Cas 382.
1433 Claimant's employment of counsel

View Entire Section
Tolling of the charge filing period is usually precluded by the employment of counsel
during that period. By employing counsel, the claimant has access to a means of learning
of the filing requirements. 55 The duration of the attorney-client relationship is a factor
focused on by the courts in determining the appropriateness of tolling the charge filing
period. Thus, courts have said that tolling is not appropriate, where the attorney's
employment is continuous during the period. 56
However, tolling was granted, notwithstanding the employment of counsel, where contact
between the attorney and the client was quite limited and the relationship was not
ongoing. 57 Furthermore, the ADEA's charge filing period was tolled, even though the
employee was suspicious of the employer's stated reason for his discharge and had
retained counsel, where the court found that the employer's misrepresentation of the
reason for the plaintiff's dismissal was great enough to mislead the plaintiff's attorney. 58
Recommendation: Ethical and malpractice considerations may compel an attorney

to advise even a one-visit client concerning applicable time limitations. Local ethics
committee decisions should be reviewed on this point.
Footnotes
FEP Cas 1144, 25 CCH EPD 31676.
Footnote 56. Dartt v Shell Oil Co. (1976, CA10) 539 F2d 1256, 13 BNA FEP Cas 12, 12
CCH EPD 11119, affd 434 US 99, 54 L Ed 2d 270, 98 S Ct 600, 16 BNA FEP Cas
146, 15 CCH EPD 7947, reh den 434 US 1042, 54 L Ed 2d 792, 98 S Ct 785, 15 CCH
EPD 8019.
Footnote 57. Jacobson v Pitman-Moore, Inc. (1983, DC Minn) 573 F Supp 565, 33 BNA
FEP Cas 49, 33 CCH EPD 34169 (where there had been only one consultative visit).
Footnote 58. Meyer v Riegel Products Corp. (1983, CA3) 720 F2d 303, 33 BNA FEP Cas
165, 32 CCH EPD 33894, cert dismd (US) 79 L Ed 2d 910, 104 S Ct 2144, 34 CCH
EPD 34346.
1434 Errors by claimant's counsel

View Entire Section
The courts are divided over whether errors by an attorney may toll the charge filing
period. On the one hand, it has been said that the attorney is the freely selected agent of
the client, and the client cannot disavow its agent's errors. 59 Thus, tolling was not
permitted where the charging party's untimely filing was caused by counsel's lack of
knowledge of job discrimination laws and the ADEA. 60
However, the charge filing period was tolled where the claimant's counsel, through
"sloppy, inept practice" failed to file a charge until four weeks after the filing deadline,
the plaintiff had retained the attorney approximately four weeks prior to the deadline, and
the defendant was not prejudiced by tolling. 61
Footnotes
Footnote 59. Downey v Firestone Tire & Rubber Co. (1984, DC Dist Col) 35 BNA FEP
Cas 30, 34 CCH EPD 34570.
FEP Cas 1144, 25 CCH EPD 31676.
Footnote 61. Volk v Multi-Media, Inc. (1981, SD Ohio) 516 F Supp 157, 31 BNA FEP
Cas 356.
1435 Pendency of private grievance proceedings and settlement discussions

View Entire Section
The charge filing period is not tolled by an employer's participation in private settlement
negotiations with a discharged employee, even when the defendant suffered little, if any,
prejudice from a late filing. 62 An employer's initiation of settlement negotiations also
did not toll the period for filing an ADEA charge because it had done nothing to mislead
the complainant. 63 In addition, the charge filing period is not tolled by the employer's
promises to treat the employee fairly. 64 Furthermore, a local housing authority
employee's pursuit of an administrative appeal with the housing authority relating to his
demotion did not toll the limitations period for filing an ADEA charge with the EEOC.
65
However, tolling may be granted where the employer and the employee are engaged in
private voluntary settlement discussions and the employer acts in bad faith or deceitfully
lures the plaintiff into those discussions, or in any way causes the plaintiff to miss the
filing deadline. 66
Footnotes
838.
Footnote 63. Salazar v American Tel. & Tel. Co. (1989, SD Fla) 1989 US Dist LEXIS
6737.
Footnote 64. Sanders v Duke University (1982, MD NC) 538 F Supp 1143, 31 BNA FEP
Cas 252.
Footnote 65. Sharpe v Philadelphia Housing Authority (1982, CA3) 693 F2d 24, 30 CCH
EPD 33154.
838.
Tolling was granted where the employer assured one of its clients, who had interceded on
behalf of a demoted employee, that the employee would be reinstated to his former
position, the client so informed the claimant, and the claimant failed to file a timely age
discrimination charge. Coke v General Adjustment Bureau, Inc. (1981, CA5) 640 F2d
1436 Other situations

View Entire Section
Go to Supplement
Errors by the EEOC may result in equitable modification of the ADEA filing period. 67
Administrative errors have often been invoked in an attempt to toll the ADEA time limit
for filing a charge. Such errors have been successfully asserted when:
a charge filed with the EEOC well within 300 days was not forwarded to the state FEP
agency until after the expiration of the 300-day time period, since the charge would have
been timely had the EEOC complied with its own regulations and worksharing agreement
by promptly forwarding the charge. 68
a charging party had filed an EEOC intake questionnaire within the time limits, but the
agency had chosen to put his case into a "suspense file" until his OFCCP case was
resolved. 69
a charge had been timely mailed to the Nevada Equal Rights Commission, but never
received by the EEOC, either because the state agency had lost it or the postal service
had failed to deliver it. 70
plaintiffs submitted a letter to a state agency naming the defendant and generally
describing alleged discriminatory discharge based on age, but agency representatives
misled the plaintiffs into inaction by repeatedly advising them that their claims lacked
merit and that the agency would not entertain their charges of discriminatory discharge
and failure to rehire. 71
Equitable tolling may also be appropriate if the EEOC misinforms an ADEA claimant by
telling him that filling out an Intake Questionnaire completed his administrative
responsibilities, since the claimant might have believed that filing the questionnaire had
been the same as filing a formal charge, although the EEOC never notified the employer
that any charge was filed, and might not have known of his mistake until he retained
counsel. The question that must be answered is whether the claimant filed a charge as
soon as he realistically could after discovering that he had been misinformed. 72
However, administrative errors provided no equitable basis for tolling when the
complaining party was not prejudiced by the error, such as when:
state FEP agency employees' erroneous advice regarding the merits of a claim did not
prevent the plaintiff from filing his charge or misinform him of the time limits. 73
the claimant was allegedly informed by EEOC employees that she should file her charge
within 120 days from the effective date of her termination rather than 180 days from the
notice of termination. Even had she received such "advice," the plaintiff's charge would
not have been untimely had she followed it. 74
an EEOC in-take officer expressed the opinion that there was nothing the agency could
do for the prospective claimant, so long as the statements did not act as an affirmative
inducement to delay filing a charge. 75
1436 ----Other situations [SUPPLEMENT]
Case authorities:
Under circumstances, 30-day statutory period in which letter carrier was required to
contact EEO counselor was equitably tolled for purposes of letter carrier's action under
501 of Rehabilitation Act (29 USCS 791) due to ambiguity and uncertainty created by
both language and procedures employed by postal service for removing employee from
service. Masterson v United States Postal Serv. (1994, ED Pa) 9 ADD 749, 3 AD Cas
1120, judgment entered (1994, ED Pa) 7 ADD 971, 3 AD Cas 1573.
Footnotes
Footnote 67. Cobb v Stringer (1988, CA8) 850 F2d 356, 47 BNA FEP Cas 130, 46 CCH
EPD 38058.
Footnote 68. Gabrielle v Barrett, Haentjens & Co. (1986, MD Pa) 663 F Supp 1187, 46
BNA FEP Cas 226.
Footnote 69. Bidic v Prudential Ins. Co. (1987, DC NJ) 42 BNA FEP Cas 1418.
Footnote 70. Williams v Warehouse Markets, Inc. (1986, DC Nev) 637 F Supp 724.
Footnote 71. Whitten v Farmland Industries, Inc. (1991, DC Kan) 1991 US Dist LEXIS
6075.
Footnote 72. Early v Bankers Life & Casualty Co. (1992, CA7) 959 F2d 75, 58 CCH
EPD 41367.
Footnote 73. Marshall v Babcock & Wilcox (1987, CA4) 813 F2d 1228.
Footnote 74. Welty v S.F. & G., Inc. (1985, ND Ala) 605 F Supp 1548, 37 BNA FEP Cas
926.
Footnote 75. Schroeder v Copley Newspaper (1989, CA7) 879 F2d 266, 50 BNA FEP
Cas 447, 50 CCH EPD 39173.
c. Investigations [1437-1444]
(1). In General [1437-1439]
1437 Generally
View Entire Section
The ADEA 76 gives the EEOC and its authorized representatives the power to: (1)
investigate and gather data; (2) enter establishments and inspect and copy records
therein; (3) interview employees; and (4) require the production of witnesses, documents
and other evidence. 77
Observation: Extended investigation procedures are very similar to those used by

EEOC in Title VII processing. 78
Footnotes
Footnote 76. 29 USCS 626(a), 626(b).
Footnote 77. 29 CFR 1626.15(a).
1438 Factfinding conferences

View Entire Section
In order to facilitate settlement of a charge, a factfinding conference may be scheduled by
the EEOC. 79
The format of a factfinding conference is essentially the same as under Title VII. 80
Footnotes
Footnote 80. 1333.
1439 Predetermination interview

View Entire Section
At the conclusion of investigatory activity by the EEOC, an EOS will contact the
charging party and respondent to inform both parties of the results of the investigation,
and to attempt settlement where a finding of a violation of the ADEA is probable or has
been made. 81
Footnotes
(2). Subpoenas [1440-1444]
1440 Authority to issue

View Entire Section
The ADEA gives the EEOC the authority to issue subpoenas compelling the production
of any information which is relevant to matters under the Commission's investigatory
authority. 82
Subpoenas may be issued by EEOC's General Counsel, District Directors, the Director of
the Office of Program Operations, or the designees of such persons. 83
Footnotes
Footnote 83. 29 CFR 1626.16(b); 1626.15(e).
1441 Types of evidence requested by subpoena

View Entire Section
Go to Supplement
The EEOC may issue subpoenas requiring: (1) the attendance and testimony of
witnesses; (2) the production of evidence in the possession or under the control of the
person subpoenaed; and (3) access to evidence for the purpose of examination and the
right to copy. 84
1441 ----Types of evidence requested by subpoena [SUPPLEMENT]
Case authorities:
Ascertaining if discrimination appears in other employment decisions made by defendant
employer could lead to sources of discrimination which overlap with decision to
terminate ADEA plaintiff; thus, discovery should not be limited to employer's
termination practices. Finch v Hercules, Inc. (1993, DC Del) 62 BNA FEP Cas 295.
Footnotes
Footnote 84. 29 CFR 1626.16(a).
1442 Proper form and service

View Entire Section
Subpoenas issued under the ADEA must: (1) state the name, address, and title of the
issuer; and (2) identify the person or evidence subpoenaed, the name of the person to
whom the subpoena is returnable, and the date, time, and place that testimony is to be
given or that documents or access are to be provided. 85
Service of a subpoena under the ADEA is accomplished in the same manner that EEOC
serves a subpoena under Title VII. 86
Footnotes
Footnote 85. 29 CFR 1626.16(b).
For a discussion of the proper service of an EEOC subpoena under Title VII, see 1345.
1443 Rights of persons subpoenaed

View Entire Section
Any person who submits data or evidence to the Commission may retain the evidence or
have it copied at his or her expense. However, a witness, for good cause, may be limited
to the inspection of the official transcript of his or her testimony. 87
Subpoenaed persons are entitled to the same fees and mileage that are paid to witnesses
in United States courts. 88
Footnotes
Footnote 87. 29 CFR 1626.14.
Footnote 88. 29 CFR 1626.16(e).
1444 EEOC's enforcement of a subpoena

View Entire Section
If a person fails to comply with a subpoena, the EEOC may utilize 15 USCS 49 and
50(Federal Trade Commission Act) to compel compliance. 89
As under Title VII, an EEOC subpoena pursuant to the ADEA is not subject to
administrative or judicial review or appeal. 90 However, unlike under Title VII, a
respondent has no right to petition the Commission to revoke or modify a subpoena
before it is challenged in an enforcement action brought by EEOC in federal court. 91
When the charge alleges violations of both Title VII and the ADEA, the EEOC issues a
separate subpoena for evidence relating to each of the respective statutes, so that the
EEOC may seek court enforcement of the ADEA subpoena even if a Title VII subpoena
appeal is pending. 92
An EEOC subpoena of records, issued during its investigation of an ADEA charge,
cannot be challenged on the basis of the alleged untimeliness of the charge itself. 93
Footnotes
Footnote 89. 29 USCS 626(a); 29 CFR 1626.16(d).
Footnote 90. 29 CFR 1626.16(c).
Footnote 93. EEOC v Gladieux Refinery, Inc. (1986, ND Ind) 631 F Supp 927, 40 BNA
d. Letters of Determination [1445, 1446]
1445 Generally; definition

View Entire Section
Whenever the EEOC determines that it is more likely than not that the charging party was
discriminated against on the basis of age, it issues a Letter of Determination (LOD),
comparable to a Title VII reasonable-cause determination, 94 even though the ADEA

does not require EEOC determinations on the merits of a claim.
Unlike the Title VII reasonable cause determination, a LOD is not issued when the
Commission finds no violation of the ADEA. 95
Footnotes
Footnote 94. 1350.

View Entire Section
A Letter of Determination will be signed by a District Director and sent to the respondent
as well as the charging party or complainant. It will describe the ADEA violations found,
and indicate the EEOC's willingness to conciliate. 96
The EEOC will permit charging parties to appeal no cause determinations and will
develop procedures and an Office of Program Operations in Washington, D.C. to review
these appeals. However, a charging party need not appeal and may, if all administrative
procedures have been complied with, immediately file a suit under the ADEA. 97
Footnotes
Footnote 97. EEOC Policy Statement, 12/15/86.
e. Conciliation [1447-1451]
1447 Generally
View Entire Section
The objectives of the conciliation process are to achieve a just resolution of all violations
found, to eliminate employment practices which are unlawful under the ADEA, to insure
the avoidance of any recurrence of those practices, and to provide full retroactive and
prospective relief for all persons "aggrieved" by those practices. 98 The EEOC's
conciliation requirement is flexible and differs from case to case. However, it at least
requires a sincere and reasonable effort to negotiate. Thus, the EEOC's settlement
demands, while potentially excessive, were sufficient to meet its statutory obligation to
make conciliation efforts where the defendants failed to make any counterproposal or
express any interest in conciliating the matter. Having made several settlement overtures,
the EEOC satisfied its conciliation requirement. 99
When the EEOC commences conciliation the respondent is entitled to written notice of
the EEOC's intent to begin or continue conciliation, 1 in the form of a letter of violation.
2 However, if a written violation letter is not issued, this does not mean there has been
a finding of no violation. 3
Footnotes
Footnote 99. U.S. EEOC v Elrod (1987, ND Ill) 1987 US Dist LEXIS 1179.
Footnote 2. 1445.
1448 Conciliation conference

View Entire Section
An EOS from the Commission may conduct ADEA conciliation conferences with
representatives of the respondent who have the authority to enter into agreements on its
behalf, either in face-to-face meetings or by telephone or mail. 4 The format of a
conciliation conference in an ADEA case is essentially the same as that under Title VII. 5
It has been held that whenever a Commission-initiated charge is filed in court, the
prerequisite conciliation attempt must include:
showing the respondent evidence of a prima facie violation of the ADEA;
informing the respondent of ways in which compliance with the Act may be achieved;
notifying the respondent that terminated employees may recover backpay and that the
Commission may institute legal action;
providing the respondent with the opportunity to respond to the allegations in light of
the possible remedy. 6
Footnotes
Footnote 5. 1366.
EEOC Compliance Manual 64.
Footnote 6. Marshall v Sun Oil Co. (Delaware) (1979, CA5) 605 F2d 1331, 21 BNA FEP
Cas 257, 21 CCH EPD 30345, reh den (CA5) 610 F2d 818.
1449 Conciliation without charging party

View Entire Section
There are three instances in which the Commission will enter into an ADEA conciliation
agreement without the signature of a charging party. The first is when the charging party
cannot be located. In that situation, the charging party's rights to private suit are reserved
until acceptance of the benefits outlined in the agreement. 7
The second circumstance is where the charging party declines the full relief offered by
the respondent. Again, in that situation, the charging party's rights to private suit are
reserved, but no specific relief is provided for the charging party in the agreement. 8
The third circumstance is where the Commission finds that the respondent has not
violated the ADEA with respect to charging party, but has violated it with respect to
other "aggrieved" individuals. In that situation, benefits are only provided in the
agreement to individuals other than the charging party, the Commission terminates its
processing of the charge, and the charging party retains his right to private suit. 9
Footnotes
1450 Consequences of successful conciliation

View Entire Section

If an agreement is reached in the conciliation process of an ADEA charge, it will be
signed by the parties and by a District Director on behalf of the Commission, and a copy
will be sent to all signatories. 10
Observation: The conciliation of an age discrimination claim with the EEOC will
not necessarily terminate the processing of a state referral agency on the same matter.
If that is the parties' intention, it should be indicated in the EEOC settlement, or a
separate document, with an identifying state charge number, and forwarded to the
referral agency.
Footnotes
Footnote 10. EEOC Compliance Manual 65.3-65.5.
1451 Consequences of unsuccessful conciliation

View Entire Section
If the attempted conciliation of an ADEA charge is unsuccessful, the Commission may
initiate litigation. 11
Footnotes
Footnote 11. 29 CFR 1626.15(d).
ADEA suits are discussed in 2096 et seq.
5. Executive Order 11246 Proceedings [1452-1605]
1452 Generally; OFCCP enforcement

View Entire Section
Although some independent federal agencies still have an initial role in the enforcement
of Executive Order 11246, 12 the agency primarily responsible for its administration
and enforcement is the Office of Federal Contract Compliance Programs (OFCCP).
Under Executive Order 11246, 13 all government agencies that enter into contracts must
include a specified equal opportunity clause in every covered contract by which
contractors pledge not to discriminate on the basis of race, religion, color, sex, or national
origin, and to take affirmative action to ensure equal employment opportunity on those
basis. 14
The primary responsibility for administering and enforcing the Executive Order is
assigned to the Secretary of Labor, 15 who has delegated this responsibility to the
Director of the OFCCP. 16
The OFCCP regulations authorize the Director to inquire about the status of any matter
pending before it and assume jurisdiction where he considers it necessary or appropriate.
17 Whenever the Director assumes jurisdiction, or a contracting agency refers any
matter, he may conduct investigations, hold hearings, make findings, issue
recommendations, order sanctions and penalties, and take any other action that is
necessary. The Director will notify a contracting agency of corrective action to be taken
or sanctions to be imposed, and will require the agency to take such action and report the
results to him within the time he specifies. 18
Footnotes
Footnote 12. 1453.
Footnote 13. For the text of the Order, see the note entitled "Equal Employment
Opportunity" following 42 USCS 2000e.
Footnote 14. Ex Or 11246 202, 301; 41 CFR 60-1.4.
For a more detailed discussion of the requirements of the Executive Order, see 22 et
seq.; which contractors and contracts are covered or exempted under the Executive Order
is discussed in 36 et seq., while affirmative action requirements are considered in
600 et seq.
For a discussion of the basic organization, powers and authority of the OFCCP, see
1221 et seq.
Footnote 17. 41 CFR 60-1.25.
Footnote 18. 41 CFR 60-1.25.
1453 Enforcement responsibilities of other contracting agencies

View Entire Section
Even after Executive Order 12086 consolidated most of the Executive Order 11246
enforcement responsibility with the Secretary of Labor, some independent contracting
agencies still maintain initial enforcement responsibilities, including the Tennessee
Valley Authority (TVA); 19 the United States Postal Service (USPS); 20 and the
Veterans' Administration (VA). 21 In addtion, matters arising under the Federal
Procurement Regulations (FPR) are not subject to the Secretary of Labor. 22
Footnotes
Footnote 21. 41 CFR 8-12.800-8-12.813.
Footnote 22. 41 CFR 1-12.800-1-12.814.
1454 Labor Department supplemental hearing procedures

View Entire Section
The Department of Labor (DOL) has issued supplemental rules of practice and procedure
23 that govern administrative hearings before the Department's Office of Administrative
Law Judges in the absence of conflicting procedural requirements in applicable statutes,
Executive Orders, or regulations.
The supplemental rules are used by the DOL in proceedings to enforce, inter alia, civil
rights protection under Executive Order 11246. 24 They do not apply if they are
inconsistent with a rule of procedure required by statute, Executive Order, or regulation.
When a situation arises that is not specifically covered by the supplemental hearing
regulations or by a statute, Executive Order, or regulation, the Rules of Civil Procedure
for the U.S. district courts are applied. 25
Footnotes
A detailed discussion of the supplemental hearing rules may be found in Employment

1455 Computing time periods for enforcement

View Entire Section
In computing any period of time under the rules governing administrative enforcement
proceedings or in an order issued thereunder, the time begins with the day following the
act, event, or default at issue and includes the last day of the period, unless it is a
Saturday, Sunday, or legal holiday observed by the federal government. In those
circumstances, the time period includes the next business day. 26
Footnotes
Footnote 26. 41 CFR 60-30.3.
b. Pre-Award Reviews [1456-1463]
1456 Applicability, generally

View Entire Section
Each contractor and first-tier subcontractor with contracts of $1,000,000 or more is
subject to a compliance review prior to the award of the contract. Such contracts will not
be awarded unless a pre-award compliance review has been conducted within 12 months
prior to the award. 27
The OFCCP has issued proposed regulations regarding compliance reviews that would
delete preaward reviews. 28
Footnotes
Footnote 27. 41 CFR 60-1.20(d).
Footnote 28. Prop 41 CFR 60-1.60.
1457 Initiating a pre-award review

View Entire Section
The procedure for pre-award reviews commences with a contracting agency's request to
OFCCP for pre-award clearance of a covered contractor. 29
Footnotes
1458 Granting pre-award clearance

View Entire Section
If the contractor has been found in compliance within the last 12 months and has not
substantially deviated from the affirmative action plan in effect during that review,
pre-award clearance is granted. 30
Footnotes
Footnote 30. OFCCP Federal Contract Compliance Manual 5-20.2a.
1459 Time limits on pre-award reviews

View Entire Section
If there is no current compliance finding, the OFCCP conducts a pre-award compliance
review within 30 days of the contracting agency's request. 31
Footnotes
Footnote 31. OFCCP Federal Contract Compliance Manual 5-20.2b.
1460 Conduct of pre-award reviews

View Entire Section
Because of the relatively short time within which a pre-award review must be conducted,
a desk audit will generally not be done, and analysis of data will primarily be on-site. 32
The on-site review will commence when the OFCCP is notified of the pending
contractual award. 33
Footnotes
Footnote 33. OFCCP Order No. 620a3, 5/4/79.
1461 Letters of violation

View Entire Section
If substantial deficiencies are found, a letter of violation will be issued, and a contractor
will have an opportunity to correct them through conciliation. 34
Footnotes
Footnote 34. OFCCP Federal Contract Compliance Manual 5-40.3a.
1462 Conciliation attempts; when terminated

View Entire Section
During any pre-award conferences, every effort is to be made by conciliation, mediation,
and persuasion, to develop an acceptable affirmative action program. 35 Conciliation
will terminate, however, whenever a contractor:
refuses to submit or has not developed an affirmative action plan;

does not include a vital element, such as utilization analysis, in its affirmative action
plan;
harasses or impedes the compliance officer during the review process. 36
Footnotes
1463 Contesting violations; hearings or determinations

View Entire Section
A contractor may contest findings of deficiencies by requesting a hearing 37 or by
requesting the Director of the OFCCP for a determination concerning contested issues of
fact or law. 38
Footnotes
Footnote 37. 1537.
Footnote 38. 41 CFR 60-2.2(b); OFCCP Federal Contract Compliance Manual
5-20.4.
c. Affirmative Action Requirements [1464-1466]
1464 When is contractor non-responsible

View Entire Section
With respect to affirmative action programs required of certain nonconstruction
contractors, if the contracting officer determines that the contractor has not developed or
implemented an acceptable affirmative action program, or has substantially deviated from
an approved program, the officer must declare the contractor or bidder non-responsible
and notify it and the OFCCP Director, unless he can affirmatively determine that the
contractor is able to comply with his equal employment obligations. 39
Footnotes
1465 Contractor's right to a hearing

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No contractor or bidder may be declared non-responsible more than twice, due to past
noncompliance at a particular establishment or facility, without receiving prior notice and
an opportunity for a hearing. 40
Caution: Even if a contractor is found not responsible only once, it may still be
entitled to an opportunity for a hearing. 41
Footnotes
Footnote 41. 1527.
1466 Contractor's request for a hearing

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A nonconstruction contractor or bidder declared not responsible may request the OFCCP
Director to decide if that finding raises substantial issues of law or fact so that a hearing
is required, and must set forth the basis on which it seeks the determination. 42
If the Director determines that there are substantial issues of law or fact, an
administrative or judicial proceeding may be started, or the Director may require that the
investigation or compliance review be further developed or that additional conciliation be
conducted. 43
Footnotes

d. Compliance Reviews; Nonconstruction Contractors [1467-1494]
(1). In General [1467-1471]
1467 Basic steps

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A compliance review determines whether a prime contractor or subcontractor is
maintaining nondiscriminatory hiring and employment practices and taking the required
affirmative action. 44
As outlined in the regulations, the basic steps in a non-construction contractor evaluation
are:
(1) a desk audit 45 of the contractor's affirmative action program, especially of the
included work force analysis;
(2) an on-site review 46 of matters not satisfactorily addressed in the affirmative action
program and work force analysis; and
(3) where necessary, an off-site analysis 47 of information supplied by the contractor
during or pursuant to the on-site review. 48
Footnotes
Footnote 44. 18 CFR 1303.6-5(a) (TVA); 39 CFR 253.7 (USPS); 41 CFR
1-12.805-5(a) (FRP); 41 CFR 8-12.805-5 (VA); 41 CFR 60-1.20(a) (OFCCP).
Footnote 45. 1475-1480.
Footnote 46. 1481-1488.
Footnote 47. 1487.
Footnote 48. 41 CFR 60-60.3.
1468 Time schedule for review

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With the exception of extensions of time granted by the Director of OFCCP for good
cause shown, within 60 days from the receipt of a contractor's affirmative action
program, the contractor must either be found in compliance and so notified 49 or be
issued a 30-day show cause notice. 50 During this 60 day period, the compliance officer
must: (1) complete the desk audit; (2) schedule the on-site review; (3) complete the
on-site review; (4) complete the off-site analysis, if conducted and; (5) issue a notice of
compliance or to show cause. 51
Failure to give the contractor a timely notice of compliance or to issue a show cause
notice is not to be considered a finding of compliance or acceptance of the contractor's
affirmative action program. 52
Footnotes
Footnote 49. 1488.
Footnote 50. 41 CFR 60-60.7(a).
Footnote 51. 41 CFR 60-60.7(b).
Footnote 52. 41 CFR 60-60.7(c).
1469 Requesting special reports and reviews

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Special reports may be requested from contractors for complaint investigations and
follow-up reviews done within one year of a full compliance review. The OFCCP
Director may approve other special compliance reviews when the circumstances require
an immediate on-site review. 53
Footnotes
Footnote 53. 41 CFR 60-60.3(b)(1).
1470 Selecting contractors are for review; EEDS

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The OFCCP uses a somewhat computerized method of selecting nonconstruction
contractors for compliance reviews called the Equal Employment Data System (EEDS).
Selections under this plan are made by the heads of area and field offices. Contractors
that have low utilization rates or concentrations of women and minorities in low paying
positions, when compared to the average utilization figures of similarly-sized firms in
specified industry groups and geographic areas, are identified for selection for
compliance reviews by the EEDS. The EEDS also makes a certain number of random
selections to ensure that every contractor potentially may be selected for review
regardless of performance. 54
Footnotes
Footnote 54. OFCCP Order No. 520a5, 4/21/87.
1471 --Constitutional questions

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It has been held to be a violation of a contractor's Fourth Amendment rights to be
subjected to a compliance review under Executive Order 11246 if the enforcement
agency can not prove that neutral criteria for selecting the contractor were utilized.
While one court did not specifically find that the criteria for contractor selection met
Fourth Amendment standards for an administrative search (absent evidence of a
violation), it described those standards to include a showing that the search is pursuant to
an administrative plan containing specific neutral criteria, and that the criteria were
properly applied. 55
Observation: The criteria for contractor selection used in the New Orleans case were
established prior to the implementation of EEDS. 56 While the EEDS appears to
meet the neutral, specific, and fair criteria standard outlined by the court, a footnote in
the opinion indicates that the court may also impose the additional requirements that a
plan be national in scope and officially promulgated under the Administrative
Procedure Act 57 before it finds the plan valid under the Fourth Amendment. The
EEDS meets the first additional standard but not the second, since it is fully described
only in a memorandum attached to an administrative notice.
Recommendation: Contractors selected for compliance reviews by EEDS who have

reason to believe that the Fourth Amendment was violated in that process may validly
require the OFCCP to produce documentary or other evidence sufficient to
demonstrate the proper application of EEDS with respect to their selection.
Furthermore, contractors may contend that the plan is not constitutionally valid
because it has not been promulgated under the APA, does not appear in the
Compliance Manual, and is only referred to in an administrative order.
Footnotes
Footnote 55. United States v New Orleans Public Service, Inc. (1984, CA5) 723 F2d 422,
Footnote 56. 1470.
(2). Information Gathering [1472-1474]
1472 Contractor's duty to provide information

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The contractor must provide full access to all relevant data during an on-site review, 58
and must provide all data determined by the compliance officer to be necessary for
off-site analysis. 59
Footnotes
Footnote 58. 41 CFR 60-60.4(b).
Footnote 59. 41 CFR 60-60.4(c).
1473 Protecting confidential information

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If the contractor is concerned with the confidentiality of such information as lists of
employees, employee names, reasons for termination, and pay data during the course of a
desk audit, the OFCCP will accept alphabetic or numeric coding or the use of an index of
pay and pay ranges. 60 Data necessary for an off-site analysis may be coded if the
contractor makes the code available to the compliance officer. 61
Footnotes
Footnote 60. 41 CFR 60-60.4(a).
Footnote 61. 41 CFR 60-60.4(c).
For a discussion of the confidentiality of information submitted to the OFCCP, and its
availability to the general public, see 1966 et seq.
1474 Contesting the relevancy of information

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If the contractor believes that information to be taken off-site is not relevant, it may
request a ruling by the OFCCP Area Director within ten days. The contractor may appeal
that ruling to the OFCCP Assistant Regional Administrator within ten days, and then to
the Assistant Regional Administrator within ten days, for a final ruling. 62
Footnotes
Footnote 62. 41 CFR 60-60.4(c).
(3). Desk Audits [1475-1480]
1475 Information requested

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The regulations concerning desk audits require that the OFCCP routinely request
affirmative action programs and supporting documentation, including the work force
analysis and support data, from selected contractors. 63
Footnotes
Footnote 63. 41 CFR 60-60.3(b).
1476 Time limits on submitting information

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A contractor is expected to submit an affirmative action plan for the desk audit within 30
days of receipt of notification of the compliance review. If there is reason to believe that
the materials are enroute, a reasonable time, not to exceed five calendar days, will be
allowed for its receipt. 64
Footnotes
Footnote 64. OFCCP Federal Contract Compliance Manual 2C00.
1477 Failure to submit information

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If a non-construction contractor fails to submit a required affirmative action program and
supporting documents within 30 days of a request, enforcement procedures may be
utilized. 65 If there is no reason to believe the information is enroute following the 30th
day after notification of the review, or if the information has not arrived five days later, a
show cause notice 66 or other enforcement proceedings may be commenced at the
discretion of the Director of the OFCCP. 67
Footnotes
Footnote 65. 41 CFR 60-60.2(a).
Footnote 66. 1517-1521.
Footnote 67. OFCCP Federal Contract Compliance Manual 2C01.
1478 Failure to make reasonable efforts

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If the material submitted for a desk audit of an affirmative action plan does not display a
reasonable effort by the contractor to meet all the regulatory requirements, an on-site
review need not be done, and enforcement procedures may be started. 68 Such
enforcement procedures normally commence with a show cause notice. 69
Footnotes
Footnote 68. 41 CFR 60-60.3(c).
Footnote 69. OFCCP Federal Contract Compliance Manual 2F03.
As to show cause notices, see 1517-1521.
1479 --What is reasonable effort

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A contractor's submission constitutes a reasonable effort to comply with Executive Order
11246, if it contains: (1) a workforce analysis; (2) a utilization analysis; and (3) goals for
underutilized job groups. 70
Footnotes
Footnote 70. OFCCP Federal Contract Compliance Manual 2F.
1480 Omitting desk audit

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For pre-award reviews 71 and complaint investigations, 72 an abbreviated desk audit
and an immediate on-site review may be performed, or a desk audit may be omitted. 73
Footnotes
Footnote 71. 1456-1463.
Footnote 72. 1500-1506.

Footnote 73. 41 CFR 60-60.3(b)(1).
(4). On-Site and Off-Site Reviews [1481-1488]
1481 Scheduling an on-site review

View Entire Section
Following a desk audit of the affirmative action program and supporting documentation,
74 the Office of Federal Contract Compliance Programs (OFCCP) normally schedules
an on-site review of the establishment involved. 75
On-site reviews will be scheduled when potential affirmative action and discrimination
problems have been identified through:
plan and supporting data discrepancies that were not resolved in the desk audit.
insufficient information on good faith efforts and progress toward meeting goals. 76
review of workforce, impact ratio, and compensation analyses.
known complaints of discrimination. 77
Footnotes
Footnote 75. 41 CFR 60-60.3(c).
Footnote 76. OFCCP Federal Contract Compliance Manual 2R02(b).
Footnote 77. OFCCP Federal Contract Compliance Manual 2Q00, 2R02(b).
1482 Omitting on-site review

View Entire Section
An on-site review is not necessary when: (1) the contractor's affirmative action program
is acceptable, based on the current desk audit and an on-site review conducted within the
preceding 24 months; and (2) the circumstances of the previous on-site review have not
substantially changed. 78
Footnotes
Footnote 78. 41 CFR 60-60.3(c).
1483 Entrance conference

View Entire Section
An on-site review normally commences with an entrance conference, at which the
compliance officer provides information on the OFCCP's policies, practices and rules,
obtains the contractor's initial explanation of potential deficiencies or problem areas,
discusses any additional data that has been requested, and estimates the number of days
the on-site review will require, and establishes a tentative date for the exit conference. 79
Footnotes
Footnote 79. OFCCP Federal Contract Compliance Manual 3E01.
As to the exit conference, see 1489.
1484 Information requested by OFCCP

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The Office of Federal Contract Compliance Programs (OFCCP) requests contractors
scheduled for on-site reviews to make the following information available:
(1) information necessary to conduct an in-depth analysis of apparent deficiencies in the
contractor's utilization of women or minorities;
(2) information required for a complete and thorough understanding of data contained in
or offered as support for the affirmative action program; and
(3) information concerning matters relevant to a determination of compliance with the
requirements of Executive Order No. 11246, but not adequately addressed in the
affirmative action program.
However, contractors should be requested to furnish only the specific items of

information the compliance officer determines are necessary for conducting the review
and completing the standard report and not contained in or to be derived from the
material already submitted. 80 In order to pursue certain issues, it may be necessary for
the compliance officer to request additional information on-site, as long as it meets the
above criteria. 81
Footnotes
Footnote 80. 41 CFR 60-60.3(c)(1).
Footnote 81. 41 CFR 60-60.3(c)(2).
1485 Scheduling employee interviews

View Entire Section
During a standard compliance review, the compliance officer will contact, where
appropriate, a reasonable number of employees for interviews, as part of the on-site
review. The number, scope, and manner of conducting such interviews will be discussed
in advance with the contractor. 82
Footnotes
Footnote 82. 41 CFR 60-60.5.
1486 Contractor's right to counsel during employee interviews

View Entire Section
The contractor is not entitled to have a representative present during the compliance
officer's interview of non-management employees. The contractor may have an attorney
or representative present during interviews of management employees only when the
employee speaks for the management. 83
Footnotes
Footnote 83. OFCCP Federal Contract Compliance Manual 3D03(c).
1487 Conducting an off-site analysis

View Entire Section
The compliance officer may take information made available during an on-site review to
an off-site location for further analysis, and recommend that an off-site analysis be
conducted, when issues arise concerning deficiencies or apparent violations that should
be more thoroughly analyzed off-site before a determination concerning compliance is
made. 84
Footnotes
Footnote 84. 41 CFR 60-60.3(d).
1488 Effect of no deficiencies

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If no apparent deficiencies are identified during an on-site or off-site review, the
contractor will be issued a notice that its affirmative action plan has been accepted. 85
Footnotes
Footnote 85. OFCCP Federal Contract Compliance Manual 3V.
(5). Conciliation of Deficiencies [1489-1494]
1489 Exit conference; review and correction of deficiencies

View Entire Section
On completion of the on-site review (and off-site analysis, if appropriate), the compliance
officer must conduct an exit conference with the contractor's officials for the purpose of:
(1) itemizing apparent violations that lend themselves to immediate correction; and (2)
soliciting the contractor's agreement to take adequate corrective action by specified dates.
The contractor's commitments in this respect will be reduced to a written conciliation
agreement, 86 or when appropriate, a letter of commitment. 87 In cases where the
apparent deficiencies require further analysis, the compliance officer will advise the
contractor of the areas of concern, secure the data necessary for an ultimate compliance
determination, complete the review, notify the contractor in writing of all apparent
violations found, and obtain the contractor's commitments in a written conciliation
agreement to correct such deficiencies. 88
Footnotes
Footnote 86. 41 CFR 60-60.6(a).
Footnote 87. OFCCP Federal Contract Compliance Manual 3S.
Footnote 88. 41 CFR 60-60.6(a).
1490 Conciliation or letters of commitment prior to enforcement

View Entire Section
Where deficiencies are found, reasonable efforts must be made to secure compliance
through conciliation and persuasion. Before a contractor with deficiencies can be found
in compliance with Executive Order 11246, it must make a specific written commitment
to correct them, stating the precise action to be taken and an expeditious date for
completion After a commitment is approved, the contractor may be considered in
compliance if its commitments are faithfully kept. The contractor will be notified that its
commitments do not preclude determinations of noncompliance, based on a finding that
they are insufficient to achieve compliance. 89
Signed conciliation agreements are
appropriate for material violations, while letters of commitment are only appropriate for
resolving minor technical deficiencies. 90
The OFCCP has issued proposed regulations regarding the appropriateness and contents
of conciliation agreements and letters of commitment. 91
Footnotes
Footnote 89. 18 CFR 1303.6-5(b) (TVA); 41 CFR 1-12.805-5(b) (FPR); 41 CFR
60-1.20(b) (OFCCP).
Footnote 90. 41 CFR 60-1.33(b) 60-60(a); OFCCP Federal Contract Compliance
Manual 8-110.
1491 Termination of conciliation efforts

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There are certain circumstances under which the OFCCP will terminate conciliation
attempts. The Compliance Manual indicates that voluntary resolution of deficiencies
may be inappropriate whenever a contractor:
shows a complete disregard for any of OFFCP's programs, such as by refusing to
develop an affirmative action plan;
refuses to provide relief for an affected class;
makes false representations;
does not comply with a determination that it is subject to the OFFCP's program
requirements;
does not agree in writing to provide the appropriate remedies established under the
OFCCP's policies. 92
Footnotes
Footnote 92. OFCCP Federal Contract Compliance Manual 8-30.4c.
1492 Contesting deficiencies after conciliation

View Entire Section
A contractor's conciliation does not prevent it from requesting a hearing 93 within ten
days of compliance, in order to contest any perceived errors in the deficiencies found by
the compliance officer. Such requests are made to the Director of the OFCCP. 94
Footnotes
Footnote 93. 1537.
Footnote 94. 41 CFR 60-1.24(c)(4); 60-60.6(b).
1493 Contractor's written commitment violations

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If a contractor violates its written commitments, the violation may be corrected through a
conciliation agreement, or an enforcement proceeding may be initiated. 95 If
administrative enforcement is contemplated, the contractor is entitled to a 30-day show
cause notice., 96 and the procedures applicable to reviews of affirmative action
requirements may be utilized. 97
Footnotes
Footnote 95. 41 CFR 60-1.34(b).
Footnote 96. 1517-11521.
Footnote 97. 41 CFR 60-1.34(b).
1494 Conciliation agreement violations

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When a conciliation agreement has been violated, a written notice will be sent to the
contractor, setting forth the alleged violations and summarizing the supporting evidence.
98 Except when delay would cause irreparable injury to the rights of affected
employees or applicants, the contractor has 15 days from receipt of that notice to
respond. 99
During the 15-day period, the contractor may demonstrate, in writing, that it has not
violated the agreement, 1 but if it is unable to do so, or if irreparable injury is alleged,
enforcement proceedings may be initiated immediately, without issuing a show cause
notice or taking any other action. 2
Footnotes
Footnote 98. 41 CFR 60-1.34(a)(1).
Footnote 99. 41 CFR 60-1.34(a)(1).
Footnote 1. 41 CFR 60-1.34(a)(2).
Footnote 2. 41 CFR 60-1.34(a)(3); 60-4.8.

e. Compliance Reviews: Construction Contractors [1495-1499]
1495 Information requested

View Entire Section
Sufficiently in advance of a compliance review, the Office of Federal Contract
Compliance Programs compliance officer will notify the contractor of the date and
specify that the following information should be available for inspection and copying:
books, records, payrolls, and accounts;
a list of all minority and female employees who worked during the review period on
each construction project;
documentary evidence of compliance with the specified affirmative action standards;
evidence of compliance with the required equal opportunity and affirmative action
clause. 3
Footnotes
Footnote 3. OFCCP Federal Contract Compliance Manual 4E01, 4E02.
1496 Procedure for conducting review

View Entire Section
An OFCCP compliance officer conducts the review by analyzing the submitted
documentation, conducting an on-site inspection of one or more of the work sites, and
interviewing any employees necessary to verify the information submitted with respect to
affirmative action standards. 4
The compliance review of a construction contractor ends with an exit conference at
which the compliance officer should outline the results of the review, identify violations
and the corrective action necessary to resolve them, and inform the contractor that:
written notice of the violations and required remedies will be provided;

violations may be resolved through an acceptable conciliation agreement or letter of
commitment, as appropriate; and
where the findings are disputed, the OFCCP will consider any pertinent additional
evidence submitted within a specified period of time before determining compliance
status. 5
Footnotes
Footnote 4. OFCCP Federal Contract Compliance Manual 4F, 4Q.
Footnote 5. OFCCP Federal Contract Compliance Manual 4R.
1497 Conciliation
View Entire Section
Violations which should be resolved through conciliation agreements include
discrimination, intimidation, harassment, coercion, and segregation of facilities, except
where necessary for privacy between the sexes. Conciliation agreements are also
appropriate to correct failures to:
list recruitment sources and notify them of job opportunities;
maintain records of names, addresses, and telephone numbers of minority and female
applicants;
document results of referrals to unions;
notify the OFCCP of unions' efforts to impede contractors' affirmative action efforts;
direct recruitment efforts to minority and female schools and organizations;
develop or participate in training programs for minorities and women;
review obligations of persons responsible for employment decisions annually;
review supervisors' adherence to equal opportunity and affirmative action obligations
annually;
evaluate minority and female employees for promotional opportunities.
validate tests and selection procedures;
monitor personnel activities for discriminatory effect;

report employment utilization completely. 6
Violations which should be resolved through letters of commitment include those which
should otherwise be resolved through conciliation agreements, where the contractor
demonstrates substantial compliance with the requirement of good faith efforts to remedy
them. Letters of commitment are also appropriate to correct failures to:
encourage recruitment of minority and female applicants by minority and female
employees;
disseminate contractors' EEO policies internally and externally;
notify the OFCCP of subcontracts in excess of $10,000. 7
Footnotes
Footnote 6. OFCCP Federal Contract Compliance Manual 4T.
Footnote 7. OFCCP Federal Contract Compliance Manual 4U.
1498 Deficiencies found: show cause notice issued

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If an investigation or compliance review reveals that a construction contractor or
subcontractor has violated Executive Order 11246, or a contract clause or specification,
or the applicable regulations, and if administrative enforcement is contemplated, the
OFCCP Director will require the contractor or subcontractor to show cause why
enforcement proceedings should not be initiated. 8 The notice must contain all of the
items specified for show cause notices 9 to nonconstruction contractors. 10
If the construction contractor does not show good cause within 30 days, or fails to enter
into an acceptable conciliation agreement, the matter will be processed in enforcement
proceedings. 11
Footnotes
Footnote 9. 1518.
Footnote 10. 41 CFR 60-4.8, 60-2.2(c)(1).
Footnote 11. 41 CFR 60-1.26(b), 60-4.8.
1499 Conciliation agreement violated: enforcement action taken

View Entire Section
Where a violation discovered during a compliance review concerns a previous
conciliation agreement, no show cause notice is required prior to initiating enforcement
proceedings. 12
Footnotes
f. Individual Complaint Proceedings [1500-1516]
(1). In General [1500-1506]
1500 Filing complaint

View Entire Section
An employee or applicant for employment of a covered government contractor or
subcontractor may, by himself or by his authorized representative, file a written
complaint of alleged discrimination in violation of the equal opportunity clause. 13
If an oral complaint is received by the Veterans' Administration, the complainant will be
advised to submit the complaint in writing to the Veterans' Administration Contract
Compliance Officer. 14
Footnotes
Footnote 13. 18 CFR 1303.6-6(a) (TVA); 39 CFR 253.8(a) (USPS); 41 CFR
1-12.805-6(a) (FPR); 41 CFR 60-1.23(a) (OFCCP).
Footnote 14. 41 CFR 8-12.805-6(a).
1501 Time limits for filing

View Entire Section
The complaint must be filed within 180 days from the date of the alleged violation,
unless the time for filing is extended by the Office of Federal Contract Compliance
Programs (OFCCP) Director for good cause shown. 15
The OFCCP's policy is that the date of the violation is considered to be when the
complainant knew or reasonably should have known of the alleged discriminatory act.
Furthermore, the processing of a grievance under a collective bargaining agreement does
not extend the time period for filing a complaint under the OFCCP's policy. 16
The OFCCP considers the filing date to be when the complaint is first received in
writing. A mere request for a complaint form or an oral expression of intent to file a
complaint is not sufficient to establish the filing date. 17
Footnotes
Footnote 15. 41 CFR 60-1.21 (OFCCP); 18 CFR 1303.6-6(a) (TVA); 41 CFR
1-12.805-6(a) (FPR).
Footnote 16. OFCCP Order No. 630a5 (3/10/83).
Footnote 17. OFCCP Order No. 630a5 (3/10/83).
1502 Where to file

View Entire Section
Complaints may be filed with the Office of Federal Contract Compliance Programs in
Washington, D.C., or with any OFCCP regional or area office. 18
Footnotes
Footnote 18. 41 CFR 60-1.22.
For information on where to file individual complaints under TVA and FPR regulations,
see 18 CFR 1303.6-6(b) (TVA); 41 CFR 1-12.805-6(b) (FPR).
1503 Contents of complaints

View Entire Section
An individual complaint must be signed by the complainant or his authorized
representative, and should include: (1) the name, address, and telephone number of the
complainant; (2) the name and address of the prime contractor or subcontractor involved;
(3) a description of the alleged discriminatory acts; and (4) any other pertinent
information that assists in the investigation and resolution of the complaint. 19
If a
complaint contains incomplete information, the OFCCP will request the needed
information from the complainant. If the information is not furnished within 60 days of
the request, the case may be closed. 20
Footnotes
Footnote 19. 18 CFR 1303.6-6(c) (TVA); 41 CFR 1-12.805-6(c) (FPR); 41 CFR
60-1.23(a) (OFCCP).
Footnote 20. 18 CFR 1303.6-6(d) (TVA); 41 CFR 1-12.805-6(d) (FPR); 41 CFR
60-1.23(b) (OFCCP).
1504 Class allegations

View Entire Section
Complaints alleging class-type violations that fail to identify the persons allegedly
discriminated against will be accepted if all other requirements regarding the contents of
the complaint are met. 21
Footnotes
Footnote 21. 41 CFR 60-1.23(a).
1505 Service of complaint

View Entire Section

A copy of the complaint will be sent to the respondent contractor or subcontractor. 22
Footnotes
Footnote 22. OFCCP Federal Contract Compliance Manual 6E.
1506 Referral to the EEOC

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The OFCCP may refer complaints to the Equal Employment Opportunity Commission
for processing under Title VII and must promptly notify the complainant and the
contractor of the referral. 23
Footnotes
Footnote 23. 41 CFR 60-1.24(a).
(2). Investigations [1507-1511]
1507 Time limits

View Entire Section
The contracting agency, 24
or the Office of Federal Contract Compliance Programs
(OFCCP), will conduct investigations, involving a thorough evaluation of the allegations
of the complaint, 25 and will develop a case record within 60 days from receipt of a
complaint, or within the additional time given by the OFCCP Director for good cause
shown. 26
Footnotes
Footnote 24. 18 CFR 1303.6-7(b) (TVA); 39 CFR 253.8(c) (USPS); 41 CFR
1-12.805-7(b) (FPR); 41 CFR 8-12.805-6(b) (VA).
Footnote 25. 41 CFR 60-1.24(b).

Footnote 26. 18 CFR 1303.6-7(d) (TVA); 41 CFR 1-12.805-7(d) (FPR); 41 CFR
60-1.24(d)(1) (OFCCP).
1508 Investigation may include compliance review

View Entire Section
When necessary, a complaint investigation will include a full or limited compliance
review. Full compliance reviews will normally be conducted whenever the complaint
alleges systemic or class-type discrimination, and the contractor has not had a
compliance review at that establishment within the prior two years. 27
Observation: The OFCCP's regulations and written policy statements do not

precisely define the difference between a "full" and a "limited" compliance review. 28
Footnotes
Footnote 27. OFCCP Federal Contract Compliance Manual 6F00(a).
Footnote 28. Compliance reviews are fully discussed at 1467-1499.
1509 Opening conference

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The OFCCP's investigation commences with an opening conference between the
compliance officer and an executive or representative of the contractor, at which the
issues and procedures involved in the investigation, as well as the function of the
OFCCP, will be discussed. The compliance officer will notify the contractor whether an
on-site review is necessary, what information may be requested, and which employees
may be interviewed. 29
Footnotes
Footnote 29. OFCCP Federal Contract Compliance Manual 6F07(b).
1510 Interviewing employees; contractor's right to counsel

View Entire Section
The OFCCP's investigator privately interviews nonmanagement and nonsupervisory
employees. While a contractor's attorney or representative may be present for interviews
of employees exempt from the Fair Labor Standards Act, the investigator will warn the
contractor that such interviewees are considered to be speaking on behalf of the
contractor with respect to employment policies and practices. 30 However, a
management employee being interviewed about his own complaint against the contractor
is not considered to be speaking on the contractor's behalf. 31
Footnotes
Footnote 30. OFCCP Federal Contract Compliance Manual 6F07(d)(5), (6).
Footnote 31. OFCCP Federal Contract Compliance Manual 6F07(d)(4).
1511 Concluding the investigation; exit conference

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After the investigation, including an on-site review, if necessary, the compliance officer
may make an off-site analysis of the data gathered during the investigation, and may
conduct an exit conference with the contractor at which the findings are summarized and
discussed. 32
Footnotes
Footnote 32. OFCCP Federal Contract Compliance Manual 6F07(f).
(3). Post-Investigation Procedures [1512-1516]
1512 Notice of results and right to reconsideration

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At the conclusion of an investigation, an investigative report is prepared, 33 and the
contractor is sent a notification of the results, if the complaint is still unresolved. 34 The
parties are informed that they may make a written request for a reconsideration of the
determination to the Director of the OFCCP, accompanied by affidavits or other written
documentation. 35
Footnotes
Footnote 33. OFCCP Federal Contract Compliance Manual 6G.
Footnote 34. OFCCP Federal Contract Compliance Manual 6H.
Footnote 35. OFCCP Compliance Manual Figure 6-16.
1513 Reconsideration by Director; further investigation

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For reasonable cause shown, the Director of the OFCCP may reconsider determinations
concerning complaint investigations on his own motion or pursuant to a request. 36
If the investigation of a complaint by a contracting agency shows no violation of the
equal opportunity clause, the agency will inform the Director of OFCCP, who may either
review the agency's findings and request a further investigation by the agency or
undertake an investigation he deems appropriate. 37
Footnotes
Footnote 36. 18 CFR 1303.6-7(c)(4) (TVA); 41 CFR 1-12.805-7(c)(4) (FPR); 41
CFR 60-1.24(c)(5) (OFCCP).
Footnote 37. 18 CFR 1303.6-7(c)(1) (TVA); 41 CFR 1-12.805-7(c)(1) (FPR).
1514 Conciliating violations

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If a complaint investigation or compliance review indicates a violation of the equal

opportunity clause, it should be resolved by informal means whenever possible, including
holding a compliance conference. 38
A written conciliation agreement may be executed when a compliance review, complaint
investigation, or other review by the OFCCP indicates a material violation of the equal
opportunity clause, and: (1) the contractor, subcontractor, or bidder is willing to correct
the violations or deficiencies; and (2) the OFCCP determines that settlement, rather than
formal enforcement, is appropriate. 39 The agreement will provide for remedial action
necessary to correct material violations or deficiencies noted, including backpay and
retroactive seniority. 40
Footnotes
Footnote 38. 18 CFR 1303.6-7(c)(2) (TVA); 41 CFR 1-12.805-7(c)(2) (FPR); 41
CFR 8-12.805-9(a) (VA); 41 CFR 60-1.24(c)(2) (OFCCP).
Footnote 39. 41 CFR 60-1.33(a).
Footnote 40. 41 CFR 60-1.33(a).
For a discussion of when a letter of commitment, rather than a conciliation agreement, is
appropriate, see 1490.
1515 Request for hearing after conciliation

View Entire Section
If a contractor or subcontractor, without a hearing, voluntarily complies with the
recommendations or orders of the OFCCP Director 41 or the contracting agency 42
but believes the recommendations or orders to be erroneous, it is entitled to a hearing and
review of the alleged erroneous action, if requested within ten days of compliance.
Footnotes
Footnote 41. 41 CFR 60-1.24(c)(4).
Footnote 42. 18 CFR 1303.6-9(a)(1) (TVA); 41 CFR 1-12.805-9(a)(1) (FPR).
1516 The case record

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The case record will include:
the complainant's name and address;
a brief summary of the findings regarding compliance;
a statement of the disposition of the case, including any corrective action, sanctions, or
penalties, when appropriate. 43
Footnotes
Footnote 43. 41 CFR 60-1.24(d).
g. Issuance of Show Cause Notices [1517-1521]
1517 Notice of equal opportunity clause violations

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Whenever the Office of Federal Contract Compliance Programs (OFCCP) Director has
reasonable cause to believe that a contractor has violated the equal opportunity clause, he
may issue a 30 day show cause notice requiring the contractor to demonstrate why
monitoring, enforcement proceedings, or other appropriate action to ensure compliance
should not be instituted. 44
Footnotes
Footnote 44. 18 CFR 1303.6-9(e) (TVA); 41 CFR 1-12.805-9(e) (FPR); 41 CFR
60-1.28 (OFCCP).
1518 Contents of show cause notice

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The notice to show cause must contain: (1) an itemization of the provisions of Executive
Order 11246 and the regulations of which the contractor has been found in apparent
violation, and a summary of the circumstances of each apparent violation; (2) corrective
actions necessary to achieve compliance, or principles of an acceptable remedy or the
corrective action results anticipated; (3) a request for a written response to the findings,
including commitments to corrective action, or the presentation of opposing facts and
evidence, and (4) a suggested date for a conciliation conference. 45
Footnotes
Footnote 45. 41 CFR 60-2.2(c)(1).
1519 Show cause proceedings

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During the 30-day show cause period, every effort will be made to conciliate and resolve
the deficiencies that led to the determination of non-responsibility. If satisfactory
adjustments designed to bring the contractor into compliance are not concluded, the case
will be processed in enforcement proceedings. 46
Footnotes
Footnote 46. 41 CFR 8-12.810(d) (VA); 41 CFR 60-2.2(c)(3) (OFCCP).
1520 Rescinding show cause notices

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A regional office of the OFCCP may rescind a show cause notice only when: (1) the
contractor has agreed to an acceptable conciliation agreement implementing remedies for
all of the identified deficiencies; (2) the head of a regional office or the Director of the
OFCCP determines that the alleged noncompliance did not exist; (3) the contractor has
demonstrated "good cause" for noncompliance; for example, exemption from the
requirements being applied; or (4) the show cause notice was erroneously issued. 47
Show cause notices will not be rescinded merely because the contractor agrees to comply
in the future. The contractor must also implement remedies that eliminate the effects of
past noncompliance before a recision is appropriate. 48
The Director of the OFCCP must approve any recision of a show cause notice based on
the contractor's demonstration of "good cause" for noncompliance. 49
Footnotes
1521 Lack of necessity for show cause notice

View Entire Section
A show cause notice is not required prior to further administrative enforcement efforts by
the OFCCP, if a contractor:
refuses to submit an affirmative action program;
refuses to supply records or other requested information;
refuses to allow access to its premises for an on-site review; 50
violates the terms of a conciliation agreement. 51
Footnotes
Footnote 50. 41 CFR 60-126(a)(2).
h. Informal Hearing Proceedings [1522, 1523]
1522 Generally
View Entire Section
The regulations of the various federal contracting agencies that have primary compliance
enforcement authority provide that the Director of the Office of Federal Contract
Compliance Programs (OFCCP)or the contracting agency with the approval of the
Director, may convene an informal hearing to inquire into the compliance status of any
prime contractor or subcontractor with respect to the equal opportunity clause. 52
Footnotes
Footnote 52. 18 CFR 1303.8-2(a) (TVA); 41 CFR 1-12.807-2(a) (FPR); 41 CFR
8-12.807-1(a) (VA).
1523 Procedure
View Entire Section
Contractors and subcontractors are entitled to written notice of the time and place of an
informal hearing, and may be required to attend and to bring specific documents and
records or other relevant information concerning their compliance status. 53
An informal hearing will be conducted by hearing officers appointed by the OFCCP
Director or the agency. 54
Parties to the hearing may be represented by counsel and
will have a fair opportunity to present any relevant evidence. 55
Formal rules of evidence do not apply at informal hearings. 56
Footnotes
Footnote 53. 18 CFR 1303.8-2(b) (TVA); 41 CFR 1-12.807-2(b) (FPR); 41 CFR
8-12.807-1(a) (VA).
8-12.807-1(c) (VA).
8-12.807-1(a) (VA).
8-12.807-1(a) (VA).
i. Formal Hearing Proceedings [1524-1589]
(1). In General [1524-1528]
1524 Instituting enforcement proceedings

View Entire Section

If there is a violation of Executive Order 11246, the equal opportunity clause, the
pertinent regulations, or the applicable construction industry equal employment
opportunity requirements, and the matter has not been resolved by informal means, 57
enforcement proceedings may be brought to seek appropriate relief. 58
Violations may be based on: (1) the results of a complaint investigation; (2) analysis of
an affirmative action program; (3) the results of an on-site review of the contractor's
compliance with the order and its implementing regulations; (4) a contractor's refusal to
submit, or substantial deviation from, an affirmative action program; (5) a contractor's
refusal to allow an on-site compliance review; (6) a contractor's refusal to supply records
or other information as required by the pertinent regulations or construction industry
requirements; and (7) any substantial or material violation (or threat of violation) of the
contractual provisions of the order, or its implementing regulations. 59
Footnotes
Footnote 57. 41 CFR 60-1.24(c)(3).
Footnote 58. 41 CFR 60-1.26(a)(1).
Footnote 59. 41 CFR 60-1.26(a)(1), (2), 60-2.2(c)(1).
1525 Violations after individual complaint investigations

View Entire Section
If the investigation of a complaint 60 results in a determination that Executive Order
11246, the equal opportunity clause, or the regulations implementing the order have been
violated, and those violations have not been corrected in conciliation, the OFCCP may
institute an administrative enforcement proceeding to enjoin the violations, seek
appropriate relief (including affected class relief and backpay), and impose appropriate
sanctions. 61
Footnotes
Footnote 60. 1507-1516.
Footnote 61. 41 CFR 60-1.26(a)(2).
1526 Violations after compliance reviews

View Entire Section
If a compliance review 62 results in a determination that Executive Order 11246, the
equal opportunity clause, or the regulations implementing the order have been violated,
and such violations have not been corrected in conciliation, the OFCCP may institute an
administrative enforcement proceeding to enjoin the violations, seek appropriate relief
(including affected class relief and backpay) and impose appropriate sanctions. 63
Footnotes
Footnote 62. 1467-1499.
Footnote 63. 41 CFR 60-1.26(a)(2).
1527 Contractor's right to hearing

View Entire Section
A covered contractor or subcontractor must be given an opportunity for a formal hearing
by the OFCCP's Director or the contracting agency where: (1) an apparent violation of
the equal opportunity clause, as shown by a complaint investigation or compliance
review, is not resolved informally; (2) without a hearing, the contractor or subcontractor
complied with the recommendations or orders of the OFCCP or contracting agency, but
believes them to be erroneous; (3) it is proposed to wholly or partially cancel or terminate
a contract or subcontract; (4) it is proposed to debar the prime contractor or
subcontractor, 64 before a finding of non-responsibility is issued against a
nonconstruction contractor with respect to its affirmative action requirements. 65 Even
though the OFCCP's regulations do not entitle a contractor to a hearing until it has been
declared non-responsible more than twice, 66 waiting until then amounted to a de facto
debarment, thus entitling the contractor to a hearing whenever it is imposed, as required
by Executive Order 11246. 67
Footnotes
Footnote 64. 18 CFR 1303.8-1 (TVA); 41 CFR 1-12.807-1 (FPR); 41 CFR
60-1.26(a)(2) (OFCCP).
Footnote 65. Pan American World Airways, Inc. v Marshall (1977, SD NY) 439 F Supp
487, 15 BNA FEP Cas 1607, 15 CCH EPD 7930; St. Regis Paper Co. v Marshall (1979,
WD Pa) 21 BNA FEP Cas 265, 21 CCH EPD 30533; Sundstrand Corp. v Marshall
(1978, ND Ill) 20 BNA FEP Cas 352, 17 CCH EPD 8609; Crown Zellerbach Corp. v
Wirtz (1968, DC Dist Col) 281 F Supp 337, 1 BNA FEP Cas 274, 67 BNA LRRM 2175,
1 CCH EPD 9846, 57 CCH LC 9104.
Footnote 67. Ex Or 11246 208(b); Illinois Tool Works, Inc. v Marshall (1979, CA7 Ill)
1528 Role of Administrative Law Judge

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Formal hearings are held before an administrative law judge (ALJ) of the Department of
Labor, who is appointed by the Chief Administrative Law Judge. 68 The ALJ is under a
duty to conduct a fair hearing, to take all necessary action to avoid delay, and to maintain
order. 69
The ALJ has the power to:
hold conferences in order to settle or simplify issues or to expedite the disposition of the
proceedings; 70
require the parties to state their positions with respect to various issues 71
require the parties to produce relevant witnesses and documents 72 under their control
and respond to appropriate discovery requests; 73
administer oaths; 74
rule on motions 75 and other procedural matters;
regulate the course of the hearing and the conduct of the participants to the hearing; 76
rule on the admissibility of evidence;
fix time limits for the submission of written documents;
examine and cross-examine witnesses and introduce documentary evidence;
impose appropriate sanctions against persons failing to obey an order pursuant to the
regulations;
take official notice, when appropriate, of any material fact not appearing in evidence;
issue subpoenas;
issue recommended decisions 77 and appropriate corrective action if necessary;
take any other action authorized by the regulations. 78
Upon notice to all parties, the ALJ may modify or waive any regulatory rule if no party
will be prejudiced, and if justice is served. 79
Caution: ALJ cannot consult any person or party on a fact in issue, except upon
notice and opportunity for all parties to participate. 80
Footnotes
Footnote 68. 41 CFR 60-30.14.
Footnote 69. 41 CFR 60-30.15.
Footnote 70. 1553.
Footnote 71. 1548.
Footnote 72. 1578.
Footnote 73. 1556-1569.
Footnote 74. 1580.
Footnote 75. 1540-1547.
Footnote 76. 1570-1582.
Footnote 77. 1584-1587.
Footnote 78. 41 CFR 60-30.15.
Footnote 79. 41 CFR 60-30.2.
Footnote 80. 41 CFR 60-30.20.
(2). Pleading Requirement [1529-1532]
1529 Filing
View Entire Section

The original of all pleadings and papers in an administrative enforcement proceeding
must be filed with the ALJ assigned to the case, or with the Chief Administrative Law
Judge, if the case has not been assigned. 81
Footnotes
Footnote 81. 41 CFR 60-30.4(a).
1530 Contents
View Entire Section
Every pleading and paper filed in a hearing must contain a caption setting forth: (1) the
name of the agency instituting the proceeding; (2) the title of the action; (3) the case file
number assigned by the ALJ; and (4) the designation of the pleading, such as a complaint
or a motion to dismiss. 82 The pleading must be signed and contain the address and
telephone number of the person representing the party, or the person on whose behalf it
was filed. 83
Footnotes
Footnote 82. 41 CFR 60-30.4(a).
Footnote 83. 41 CFR 60-30.4(a).
1531 Service
View Entire Section
In an administrative hearing, the party filing a pleading or document must accomplish
service on any other party by delivering or mailing a copy to the party's last-known
address. When a party is represented by an attorney, service must be on the attorney. 84
A certificate of the person serving the pleading or document that sets forth the manner of
service constitutes proof of the service. 85
Footnotes
Footnote 84. 41 CFR 60-30.4(b).
Footnote 85. 41 CFR 60-30.4(c).
1532 Confidentiality
View Entire Section
All papers and pleadings in an enforcement proceeding are public documents, unless the
ALJ orders otherwise. 86
Footnotes
Footnote 86. 41 CFR 60-30.4(a).
(3). The Administrative Complaint [1533-1535]
1533 Issuance
View Entire Section
An administrative enforcement hearing is instituted when the Solicitor of Labor,
Associate Solicitor for Labor Relations, Civil Rights Regional Solicitor, or Regional
Attorney, upon referral from the OFCCP, issues a complaint and serves it on the
contractor. 87
Footnotes
Footnote 87. 41 CFR 60-1.26(a)(2), 60-30.5(a).
1534 Required contents

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An administrative complaint must contain: (1) a concise jurisdictional statement; (2) a
clear and concise statement sufficient to put the defendant on notice of the acts or
practices alleged to constitute a violation; (3) a pleading regarding the relief being
sought; (4) a statement of whatever sanctions the government seeks to impose; and (5)
the name and address of the attorney representing the government. 88
Footnotes
Footnote 88. 41 CFR 60-30.5(b).
1535 Amendments
View Entire Section
An administrative complaint may be amended once, as a matter of course, before an
answer is filed. 89 Subsequent amendments of the complaint may be made only by
permission of the ALJ or by consent of the other party, although such permission is to be
freely given when justice so requires. 90
Footnotes
Footnote 89. 41 CFR 60-30.5(c).
Footnote 90. 41 CFR 60-30.5(c).
(4). The Answer [1536-1539]
1536 Filing and serving; required contents

View Entire Section
The defendant contractor or subcontractor must, within 20 days of service of the
complaint, file an answer with the Chief Administrative Law Judge, if the case has not
been assigned to an ALJ. 91 The answer must be signed by the defendant or his
attorney, and must be properly served on the government. 92
An answer must contain the name and address of the defendant, or his attorney, and must
either: (1) contain a statement of the facts that constitute the grounds of defense, and
specifically admit, explain, or deny each allegation of the complaint, or state that the
defendant is without knowledge; or (2) state that the defendant admits all allegations of
the complaint. 93
Footnotes
Footnote 91. 41 CFR 60-2.2(c)(2), 60-30.6(a).
Footnote 92. 41 CFR 60-30.6(a).
Footnote 93. 41 CFR 60-30.6(b).
1537 Request for hearing

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A hearing must be specifically requested in the defendant contractor's answer, or the
answer may contain a waiver of hearing. 94
If the defendant in an administrative complaint requests a hearing, the ALJ must respond
to the request within 15 days. 95
Footnotes
Footnote 94. 41 CFR 60-30.6(b).
Footnote 95. 41 CFR 60-30.7.
1538 Failure to answer; admissions or adverse decisions

View Entire Section
If the defendant fails to file an answer, or plead specifically to an allegation in the
administrative complaint, it constitutes an admission. 96
If the defendant's answer admits all of the material allegations of fact contained in the
administrative complaint, or if the defendant fails to file an answer, the ALJ, without a
further hearing, may prepare a decision, in which he will adopt as his proposed findings
of fact the material facts alleged in the complaint. When this occurs, the parties must be
given an opportunity to file exceptions to the decision 97 and to file briefs in support of
those exceptions. 98
Footnotes
Footnote 96. 41 CFR 60-30.6(b).
Footnote 97. 1585.
Footnote 98. 41 CFR 60-30.6(c).
1539 Amendments
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The defendant may amend its original answer once, as a matter of course, within ten days
after filing it. 99 Subsequent amendments of the answer may be made only by
permission of the administrative law judge or by written consent of the other party,
although such permission is to be freely given when justice requires it. 1
An amended answer must be responded to within 14 days of service. 2
An amended complaint must be answered within 14 days of service, or within the time
for filing an answer to the original complaint, whichever is longer. 3
Footnotes
Footnote 99. 41 CFR 60-30.5(c).
(5). Motions [1540-1547]

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Motions in an administrative hearing must state the relief sought, the authority relied on,
and the facts alleged, and must be filed with the ALJ. 4 If the motion is made before or
after the hearing, it must be in writing. If the motion is made at the hearing, it may be
made orally, although the ALJ may require that it be reduced to writing, filed, and
properly served on all parties. 5 Unless the ALJ orders otherwise, written motions must
be accompanied by a supporting memorandum. 6
Footnotes
1541 Response
View Entire Section
Any party in a formal hearing may file a response to a motion within ten days of service,
or in such other time as is fixed by the ALJ. 7
Footnotes
1542 Rulings
View Entire Section
A written motion may not be granted by the ALJ prior to the expiration of the time for
filing responses, except upon the consent of the parties, or following a hearing.
However, the judge may overrule or deny a written motion without waiting for a
response. 8
Prehearing conferences, hearings, and decisions do not have to be delayed pending the
disposition of motions. 9
Footnotes
1543 Summary judgment request

View Entire Section
The defendant contractor in an administrative hearing, with or without supporting
affidavits, may move for a summary judgment in his favor as to part or all of the claims
made, at any time. 10
Any time 20 days after commencement of the administrative action, or after service of a
motion for summary judgment by the defendant, the government may, with or without
supporting affidavits, move for a summary judgment on part or all of the claims made. 11
Other parties to the proceeding cannot move for a summary judgment in their own behalf,
but may support or oppose motions for summary judgment made by the plaintiff
government or defendant contractor. 12
Footnotes
Footnote 10. 41 CFR 60-30.23(b).
Footnote 11. 41 CFR 60-30.23(a).
Footnote 12. 41 CFR 60-30.23(c).
1544 --Service and content

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A motion for summary judgment must be served on all parties at least 15 days before the
time fixed for the hearing on the motion, 13 and must be accompanied by a "Statement
of Uncontested Facts," in which the moving party sets forth all of the alleged uncontested
material facts that form the basis for the motion. 14
Footnotes
Footnote 13. 41 CFR 60-30.23(e).
Footnote 14. 41 CFR 60-30.23(d).
1545 --Response
View Entire Section
Adverse parties may serve affidavits opposing the summary judgment prior to the day of
hearing on the motion, 15 but, at least five days prior to that hearing, a party contending
that material facts regarding the matter covered by the motion are in dispute must file a
"Statement of Disputed Facts." 16 Failure to file a "Statement of Disputed Facts" is
considered an admission to the "Statement of Uncontested Facts." 17
Footnotes
Footnote 15. 41 CFR 60-30.23(e).
Footnote 16. 41 CFR 60-30.23(d).
Footnote 17. 41 CFR 60-30.23(d).
1546 --Rulings for and against motion

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Hearings on motions for summary judgment are scheduled by the ALJ. 18 Summary
judgment is to be granted expeditiously if the complaint, answer, depositions,
admissions, and affidavits, if any, show that there is no genuine issue as to any material
fact, and that the moving party is entitled to summary judgment as a matter of law. 19
A summary judgment rendered for or against the government or the defendant constitutes
the judge's findings and recommendations on the issues involved. 20
Footnotes
Footnote 18. 41 CFR 60-30.23(e).
Footnote 19. 41 CFR 60-30.23(e).

Footnote 20. 41 CFR 60-30.23(e).
1547 --Rulings granting partial relief

View Entire Section
If a summary judgment is not rendered on the whole case or for all of the requested relief
and a hearing on the merits becomes necessary, the ALJ, at the hearing on the motion,
must: (1) ascertain, if practicable, what material facts exist without substantial
controversy, and what material facts are actually in dispute; (2) make an order specifying
the substantially undisputed facts, including the extent to which relief is not in
controversy; and (3) direct any further proceedings that justice requires. 21
At the hearing on the merits, the specified facts are automatically established, and the
formal hearing is conducted accordingly. 22
Footnotes
Footnote 21. 41 CFR 60-30.23(f).
Footnote 22. 41 CFR 60-30.23(f).
(6). Parties [1548-1552]
1548 Generally
View Entire Section
In an administrative complaint, the contractor is the defendant and the Department of
Labor (OFCCP) is the plaintiff. 23
Footnotes
Footnote 23. 41 CFR 60-30.5(a).
1549 Labor organizations

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To the extent that formal hearings involve the employment of persons covered by a
collective bargaining agreement, and compliance may necessitate a revision of the
agreement, a labor organization that is a signatory to the agreement has the right to
participate as a party to the proceedings. 24
Footnotes
60-30.24(a)(1) (OFCCP).
1550 Other persons; petitioning to intervene

View Entire Section
Other persons or organizations besides the OFCCP, the contractor, and affected labor
unions have the right to participate as parties if the final administrative order could
adversely affect them or the class they represent, and if their participation may contribute
materially to the proper disposition of the proceedings. 25
Within 25 days of the commencement of the action, or at such other time as the ALJ may
order (as long as it does not disrupt the proceeding), a person or organization wishing to
participate as a party must file a petition with the judge and serve it on all parties. 26
The petition must precisely state the petitioner's interest in the proceedings, who will
appear on his behalf, the issues on which he wishes to participate, and whether he intends
to present witnesses. 27
The ALJ will determine whether each petitioner has the requisite interest in the
proceedings to be a party, and may request that a single representative be designated for
successful petitioners with a common interest in the proceeding. 28 However, the
representative of a labor organization qualified to participate must be allowed to
participate in the proceedings as union representative. 29
If the petition is granted, the ALJ must give written notice to every party. 30
The ALJ will also provide a written notice to unsuccessful petitioners that includes the
grounds for a denial of their request to participate as parties, and will automatically treat
the petition as a request for participation as amicus curiae. 31
Footnotes
60-30.24(a)(2) (OFCCP).
Footnote 26. 41 CFR 60-30.24(a)(3).
Footnote 27. 41 CFR 60-30.24(a)(3).
Footnote 28. 41 CFR 60-30.24(a)(4).
Footnote 29. 41 CFR 60-30.24(a)(4).
Footnote 30. 41 CFR 60-30.24(a)(4).
Footnote 31. 41 CFR 60-30.24(a)(4).
1551 Rights of intervenors

View Entire Section
Private parties have no standing to initiate or maintain an administrative enforcement
proceeding under Executive Order 11246, but as proper intervenors, 32 they have a
right to be heard before the Secretary of Labor in response to the OFCCP's reasons for
voluntary dismissal, in order to determine if the dismissal was for an impermissible
reason or for no reason. 33
Footnotes
Footnote 32. 41 CFR 60-30.24.
Footnote 33. Matter of National City Bank of Cleveland, Decision of Secretary of Labor,
No. 82-OFCCP-31, 9/9/82.
1552 Amicus curiae

View Entire Section
A person or organization wishing to participate in an administrative enforcement
proceeding as amicus curiae must file a petition with the ALJ before the commencement
of the hearing. 34 The petition must concisely state the petitioner's interest in the
hearing, who will represent him, and the issues on which he intends to present argument.
35
The ALJ may grant such petitions if the petitioner has a legitimate interest in the
proceedings and if such participation may contribute materially to the proper disposition
of the issues. 36
An amicus curiae is not a party, 37 but he may present a brief oral statement at the
hearing when specified by the ALJ, submit a written statement of position to the judge
prior to the hearing and serve a copy on each party, and submit a brief or written
statement when the parties submit briefs and exceptions and serve a copy on each party.
38
Footnotes
Footnote 34. 41 CFR 60-30.24(b)(1).
Footnote 35. 41 CFR 60-30.24(b)(1).
Footnote 36. 41 CFR 60-30.24(b)(1).
Footnote 37. 41 CFR 60-30.24(b)(1).
Footnote 38. 41 CFR 60-30.24(b)(2).
(7). Prehearing Procedures [1553-1555]
1553 Prehearing conferences

View Entire Section
On either his own motion or the motion of the parties, the ALJ may direct the parties (or
their counsel) to meet with him for a prehearing conference in order to consider:
the simplification of the issues to be heard;
the necessity or desirability of amending pleadings for purposes of clarification,
simplification, or limitation;
stipulations, admissions of fact and of contents, and the authenticity of documents;
limiting the number of expert witnesses;
scheduling dates for the exchange of witness lists and proposed exhibits;
any other matters that can expedite disposition of the proceedings. 39

The record must show the matters disposed of by order and agreement in the prehearing
conference, and the subsequent proceeding is to be controlled by such action. 40
The ALJ must serve a notice of a prehearing conference on the parties containing the
time and place of the conference. 41
Footnotes
Footnote 39. 41 CFR 60-30.12(a).
Footnote 40. 41 CFR 60-30.12(b).
Footnote 41. 41 CFR 60-30.7.
1554 Negotiated agreements

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Any time after the issuance of an administrative complaint, and prior to or during the
introduction of evidence in any hearing, the parties may jointly move to defer the receipt
of evidence for a reasonable time, in order to permit negotiation of an agreement that
contains findings and an order that wholly or partially disposes of the proceeding. 42
The allowance and duration of such deferments are at the discretion of the ALJ. 43
On or before the expiration of the time granted for such negotiations, the parties or their
counsel may submit the proposed agreement to the ALJ for his consideration, or may
inform the judge that an agreement cannot be reached. 44
Footnotes
Footnote 42. 41 CFR 60-30.13(a).
Footnote 43. 41 CFR 60-30.13(a).
Footnote 44. 41 CFR 60-30.13(c).
1555 --Force and effect of

View Entire Section

If a negotiated agreement is submitted by the parties within the time allowed by the ALJ,
he must, within 30 days, accept the agreement by issuing his decision, based on the
agreed findings, which constitutes the final administrative order. 45 Such agreements
must provide that: (1) the order has the same force and effect as an order following a
formal hearing; (2) the entire record on which the order is based consists solely of the
complaint and the agreement; (3) any further procedural steps are waived; and (4) any
right to challenge the validity of the findings and order entered into is waived. 46
Footnotes
Footnote 45. 41 CFR 60-30.13(d).
Footnote 46. 41 CFR 60-30.13(b).
(8). Prehearing Discovery [1556-1569]
1556 Consequences of failure to comply with discovery

View Entire Section
A contractor was debarred for failing to comply with the administrative discovery
requirements, for as long as it continued such conduct. The court emphasized that the
discovery request at issue was not insignificant, but went to the heart of the matters
pending before the ALJ. Also, previous discriminatory practices of the defendant
contractor had been documented in judicial proceedings. 47
Footnotes
Footnote 47. Uniroyal, Inc. v Marshall (1979, DC Dist Col) 482 F Supp 364, 20 BNA
FEP Cas 437, 20 CCH EPD 30108, motion den (App DC) 20 BNA FEP Cas 446, 20
CCH EPD 30109.
1557 Request for admissions

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Within 14 days before a hearing (except for good cause shown), or an earlier date set by
the ALJ, a party may serve the opposing party with a written request for the admission of
the genuineness and authenticity of any relevant documents described and exhibited with
the request, or for an admission to the truth of relevant facts stated in the request. 48
Footnotes
Footnote 48. 41 CFR 60-30.9(b).
1558 --Evidentiary implications of request

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Any matter to which an admission is requested is deemed admitted, unless, within 25
days of service, the party receiving the request serves the requesting party with a sworn
statement that either specifically denies the matter to which an admission is requested, or
sets forth in detail the reasons why he cannot truthfully admit or deny such matters. 49
Footnotes
Footnote 49. 41 CFR 60-30.9(b).
1559 Interrogatories
View Entire Section
Go to Supplement
A party may serve written interrogatories on an opposing party no later than 25 days
prior to the hearing (except for good cause shown), or no later than 14 days prior to any
earlier date set by the ALJ. 50
A separate and full answer must be given to each interrogatory, in writing and under
oath, unless it is objected to. Answers must be signed by the person making them, and
objections must be signed by the attorney or representative of the objecting party. 51
Answers and objections to interrogatories must be filed and served within 25 days after
the service of the interrogatory. 52
The OFCCP may require a defendant contractor to respond to relevant interrogatories in
conjunction with an enforcement hearing under Executive Order 11246. 53
1559 ----Interrogatories [SUPPLEMENT]

Case authorities:
Administrative judge did not err in denying removed employee's discovery requests
allegedly related to his affirmative defense of sex discrimination since all but one of
requests referred to proposing official who was not accused of sex discrimination and
other sought promotion information which deciding official recommended, but appellant
failed to show how such information could establish that he was removed because of sex
discrimination. O'Connor v Small Business Admin. (1993, MSPB) 60 MSPR 130.
Footnotes
Footnote 50. 41 CFR 60-30.9(a).
Footnote 51. 41 CFR 60-30.9(a).
Footnote 52. 41 CFR 60-30.9(a).
CCH EPD 30109.
1560 Request for production of documents

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A party may serve the other party with a request for the production and inspection (as
well as copying) of any unprivileged documents, phonorecords, and other compilations
(including computer tapes and printouts) that contain, or may lead to, relevant
information, and are in the possession, custody, or control of the party receiving the
request. 54 If necessary, translation of data compilations is to be done by the party
furnishing the information. 55
The OFCCP may require a defendant contractor to produce relevant documents in
conjunction with an enforcement hearing under Executive Order 11246. 56
Footnotes
Footnote 54. 41 CFR 60-30.10(a).
Footnote 55. 41 CFR 60-30.10(a).
CCH EPD 30109.
1561 Entry on land for inspection

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A party may serve the other party with a request to permit entry on designated property
that may be relevant to the issues in the proceeding and is in the possession or control of
that party, for the purpose of inspection, measuring, surveying, photographing, testing, or
sampling the property, or any designated object or area. 57 Such requests must set forth
with particulars the items to be inspected and must specify a reasonable time and place
for the inspection and for performing related acts. 58
The party receiving the request must respond within 25 days of service, and the response
must state, with respect to each item, that inspection and related activities will be
permitted, unless there are objections and the reasons for each objection are stated. 59
The OFCCP may require a defendant contractor to allow entry and inspection of its
property for relevant information in conjunction with an enforcement hearing under
Execustive Order 11246. 60
Footnotes
Footnote 57. 41 CFR 60-30.10(b).
Footnote 58. 41 CFR 60-30.10(c).
Footnote 59. 41 CFR 60-30.10(d).
CCH EPD 30109.
1562 Depositions; basic considerations

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The OFCCP may require a defendant contractor to provide employees and officers under
its control for depositions in conjunction with an enforcement hearing under Executive
Order 11246. 61
A party may take, by deposition, the testimony of any person or party who has personal
or expert knowledge concerning the matters in issue. 62
Every party to an enforcement hearing is obligated to produce any person for
examination, along with any requested documents, at the time, place, and date set forth in
a notice to take depositions, if the party has control over the person. 63 Parties are
deemed to have control over their officers, agents, employees, and members. 64
Footnotes
CCH EPD 30109.
Footnote 62. 41 CFR 60-30.11(a).
Footnote 63. 41 CFR 60-30.11(b).
Footnote 64. 41 CFR 60-30.11(b).
1563 --Notice required

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The party requesting a deposition must give reasonable notice in writing to every other
party and may use an administrative subpoena. 65
The notice must state the time and place for taking the deposition and, if known, the
name and address of each person to be examined. If the name is unknown, a general
description sufficient to identify the person, or the particular class or group to which he
belongs, should be included. 66 The notice must also list the type of documents the
witness is to bring to the deposition, if any. 67 A copy of the notice must be furnished
to the person to be examined, if his name is known. 68
Footnotes
Footnote 65. 41 CFR 60-30.11(a).
Footnote 66. 41 CFR 60-30.11(a).
Footnote 67. 41 CFR 60-30.11(a).
Footnote 68. 41 CFR 60-30.11(a).
1564 --Objections by parties and witnesses

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The party or prospective witness may file an objection with the ALJ within five days
after service of the notice to produce, stating the particular reasons why the party cannot
or should not produce a requested witness. 69 The party serving the notice may request
an order with respect to such an objection, or the with respect to failure to produce a
witness. 70
Footnotes
Footnote 69. 41 CFR 60-30.11(b).
Footnote 70. 41 CFR 60-30.11(b).
1565 --Presiding officer and location

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Depositions may be taken before an officer authorized to administer oaths by the laws of
the United States, or by the place where the deposition is held. 71 Unless the parties
otherwise agree, depositions are to be held within the county where the witness resides or
works. 72 However, the parties may stipulate in writing that depositions may be taken
before any person, at any time or place, upon any notice, and in any manner. 73
Footnotes
Footnote 71. 41 CFR 60-30.11(c).
Footnote 72. 41 CFR 60-30.11(b).
Footnote 73. 41 CFR 60-30.11(f).
1566 --Examination procedures

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At the time and place specified in the notice, each party may examine and cross-examine
the witness under oath on any matter relevant to the the proceeding, or that is reasonably
calculated to lead to the production of relevant and admissible evidence. 74
All objections to questions, except to form, and all objections to evidence, are reserved
until the hearing. 75
Footnotes
Footnote 74. 41 CFR 60-30.11(c).
Footnote 75. 41 CFR 60-30.11(c).
1567 --Effect of failure to answer

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Go to Supplement
A refusal or failure by a person under the control of a party to answer a question creates a
presumption that the answer, if given, would be unfavorable to that party, unless the
question is subsequently ruled improper by the ALJ, or unless he rules that there was a
valid justification for the failure or refusal to answer. 76 However, the examining party
must note on the record (during the deposition) the question that was not answered and
state his intention to invoke the presumption if no answer is forthcoming. 77
1567 --Effect of failure to answer [SUPPLEMENT]
Case authorities:
Under 5 USCS 7121(d), employee who elects to file grievance under negotiated
procedure which permits grievance of discrimination claims must exhaust his or her
administrative remedies through that procedure; employee cannot exhaust administrative
remedies by filing equal employment opportunity claim or MSPB appeal after electing to
file grievance. Macy v Dalton (1994, ED Cal) 94 Daily Journal DAR 7836, 64 BNA FEP
Cas 1718.
Footnotes
Footnote 76. 41 CFR 60-30.11(c).
Footnote 77. 41 CFR 60-30.11(c).
1568 --Certification requirements

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Testimony taken upon oral deposition must be reduced to typewriting and submitted to
the witness for examination and signing. 78 If the deposition is not signed by the
witness because he is ill, dead, cannot be found, or refuses to sign it, that fact must be
noted in the certificate of the officer taking the deposition. The deposition may then be
used as if it were signed. 79
Footnotes
Footnote 78. 41 CFR 60-30.11(d).
Footnote 79. 41 CFR 60-30.11(d).
1569 --Distribution of transcripts

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The officer taking the deposition will deliver the transcript and his certificate to the ALJ,
and copies of those documents are to be furnished to all persons desiring them, upon their
payment of reasonable charges, unless distribution is restricted for good cause by order of
the ALJ. 80
Footnotes
Footnote 80. 41 CFR 60-30.11(d).
(9). Hearing Procedures [1570-1581]
1570 Generally
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Go to Supplement
The OFCCP's regulations concerning enforcement proceedings under Executive Order
11246 81 govern the conduct of formal hearings. Those regulations provide that in the
absence of a specific provision concerning the matter at hand, procedures will be in
accordance with the Federal Rules of Civil Procedure. 82
Practice Aids: A review of administrative compensatory damage award decisions
under the Civil Rights Act of 1991, 41 Fed Bar News J 10:688 (1994).
Footnotes
Footnote 82. 41 CFR 60-30.1.
1571 Notice of hearing

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Other contracting agencies, besides the OFCCP, with enforcement responsibilities under
Executive Order 11246 generally require that a notice of hearing be sent by registered
mail, return receipt requested, to the last-known address of the defendant, and the notice
must contain: (1) the time and place of hearing; (2) a statement of the provisions of the
order and regulations pursuant to which the hearing is to be held; and (3) a concise
statement of the matters in controversy at the hearing. 83
Footnotes
Footnote 83. 18 CFR 1303.8-3(a) (TVA); 41 CFR 1-12.807-3(a) (FPR).
1572 Representation by counsel

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In an administrative enforcement hearing, the parties, or other participants, have the right
to be represented by counsel. 84
Footnotes
60-30.16(a) (OFCCP).
1573 Party's failure to appear

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In the event that a party fails to appear at an administrative enforcement hearing, the
party who is present is entitled to choose between presenting his evidence in whole, or
presenting a portion of it sufficient to make a prima facie case. 85 However, failure to
appear at the hearing is not deemed to be a waiver of the right to be served with a copy of
the ALJ's recommended decision 86 and to file exceptions 87 to it. 88
Footnotes
Footnote 85. 41 CFR 60-30.16(b).
Footnote 86. 1584.
Footnote 87. 1585.
Footnote 88. 41 CFR 60-30.16(b).
1574 Admissibility of evidence

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Uniform rules of evidence currently applicable to Labor Department supplemental
hearing procedures 89 apply to OFCCP administrative enforcement proceedings. 90
Footnotes
Footnote 89. The applicability of Labor Department supplemental hearing procedures to
OFCCP proceedings is noted at 1454. A detailed discussion regarding these procedures
appears in the Employment Coordinator EP-35,071 et seq.
Footnote 90. 55 Fed. Reg. 13137, 4/9/90.
1575 Objections to evidence

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At an administrative enforcement hearing, if a party objects to the admission or rejection
of evidence, or to limitations on the scope of examination or cross-examination (or the
failure to limit such scope), he must briefly state the grounds for the objection. 91
Rulings on objections must appear in the record, and only objections made on the record
may be subsequently relied on in the proceedings. 92 Formal exceptions to adverse
rulings on objections are not required. 93
Rulings on objections by the ALJ may not be appealed before the case is transferred to
the Secretary of Labor. 94 Evidentiary rulings are considered by the Secretary after
exceptions are filed to the ALJ's recommendations and conclusions. 95
Footnotes
Footnote 91. 41 CFR 60-30.19(a).
Footnote 92. 41 CFR 60-30.19(a).
Footnote 93. 41 CFR 60-30.19(b).
Footnote 94. 1588.
Footnote 95. 41 CFR 60-30.19(b).
1576 Offer of proof

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When the ALJ rules in favor of an objection to exclude oral testimony, an offer of proof
may be made, consisting of a statement of the substance of the evidence that counsel
contends would be adduced by excluded testimony. 96 If the excluded evidence is in
written form, a copy of it must be marked for identification and will accompany the
record 97 as the offer of proof. 98
Footnotes
Footnote 96. 41 CFR 60-30.19(c).
Footnote 97. 1587.
Footnote 98. 41 CFR 60-30.19(c).
1577 Using depositions

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All or part of an admissible deposition may be used against a party who was present or
represented at the taking of the deposition or who had reasonable notice of it. The
deposition of a party, or of anyone who at the time of taking the deposition was an
officer, director, or managing agent of the party, or was designated to testify on behalf of
a public or private corporation, partnership, association, or government agency that is a
party, may be used by the adverse party for any purpose. If only part of a deposition is
introduced in evidence by a party, any party may introduce any other part by way of
rebuttal and otherwise. Depositions may also be used:
to contradict or impeach the testimony of the deponent as a witness;
if the ALJ finds that the witness is dead, or unable to attend or testify because of age,
illness, infirmity, or imprisonment, or that the party offering the deposition has been
unable to procure the attendance of the witness by subpoena, or if, upon application and
notice, such exceptional circumstances exist as to make it desirable to allow the
deposition to be used. 99
Objections may be made at the hearing to admitting into evidence any or all of a
deposition for any reason that would require the exclusion of the evidence if the witness
was present and testifying. 1 However, all errors or irregularities are waived unless a
motion to suppress all or part of the deposition is made with reasonable promptness after
such defect is (or, with due diligence, might have been) ascertained. 2
Footnotes
Footnote 99. 41 CFR 60-30.11(e).
Footnote 1. 41 CFR 60-30.11(e).
Footnote 2. 41 CFR 60-30.11(b).
1578 Production of witnesses and documents

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Each party is obligated to produce witnesses and documents requested, at the time, place,
and date set forth in the notice of hearing, if that party has control over the person.
However, due regard must be given to the convenience of witnesses in scheduling their
testimony so they will not be detained longer than reasonably necessary. 3
Either a party or a prospective witness may file objections, within five days after the
notice of production is served, stating with particularity the reasons why the party cannot
produce a requested witness. 4 The party serving the notice may move for an order
from the ALJ with respect to objections to, or failure to produce, a witness. 5
Footnotes
Footnote 3. 41 CFR 60-30.17(b).
Footnote 4. 41 CFR 60-30.17(c).
Footnote 5. 41 CFR 60-30.17(c).
1579 Subpoenas
View Entire Section
A party who wishes to secure the appearance of a witness at the formal hearing must
serve a notice on the prospective witness by an administrative subpoena setting forth the
time, date, and place for the appearance and the categories of documents he is to bring
with him to the hearing, if any. 6 Copies of that notice must be filed with the ALJ and
served on the opposing parties. 7
Footnotes
Footnote 6. 41 CFR 60-30.17(a).
Footnote 7. 41 CFR 60-30.17(a).
1580 Examination of witnesses
View Entire Section

The examination of witnesses and the form of their testimony in Executive Order 11246
proceedings is governed by the Department of Labor's rules of evidence applicable to
supplemental hearing procedures. 8
Footnotes
Footnote 8. 55 Fed. Reg. 13137, 4/9/90.
The applicability of Labor Department supplemental hearing procedures to OFCCP
proceedings is noted at 1454. A detailed discussion regarding these procedures appears
in the Employment Coordinator EP-35,071 et seq.
1581 Oral arguments

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A party to a hearing is entitled, upon request, to a reasonable time for oral argument
between the close of evidence and termination of the hearing. 9 Such arguments are
part of the official transcript of the hearing. 10
Footnotes
Footnote 9. 41 CFR 60-30.21.
Footnote 10. 41 CFR 60-30.21.
(10). Post-Hearing Briefs [1582, 1583]
1582 Filing and service

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Within 20 days of receipt of the transcript of the testimony at the hearing, each party and
amicus may file briefs. 11
Briefs must be served simultaneously on all parties and amici, and a certificate of service
must be furnished to the ALJ. 12
A reply brief cannot be filed without special permission of the ALJ. 13
Footnotes
Footnote 11. 41 CFR 60-30.25.
Footnote 12. 41 CFR 60-30.25.
Footnote 13. 41 CFR 60-30.25.
1583 Requesting more time to file briefs

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A written request for additional time within which to file a brief is made to the ALJ, and
copies of the request must be simultaneously served on the other parties. 14 Such
requests must be received by the judge at least three days before the brief is due. 15
Footnotes
Footnote 14. 41 CFR 60-30.25.
Footnote 15. 41 CFR 60-30.25.
(11). Recommended Findings and Decisions [1584-1587]
1584 Generally; service

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Within a reasonable time after briefs have been filed, the ALJ must recommend findings,
conclusions, and a decision. 16
The recommendations of the ALJ concerning findings and a decision must be served on
all parties and amici, and are to be certified with the record 17 to the Secretary of Labor
for a final administrative order. 18
Footnotes
Footnote 16. 41 CFR 60-30.27.
Footnote 17. 1587.
Footnote 18. 41 CFR 60-30.27.
1585 Exceptions to recommendations

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Within 14 days after receiving the ALJ's recommended findings, conclusions, and
decision, a party may submit exceptions to the recommendations. 19 All exceptions
must be filed with the Secretary of Labor, and such exceptions must be simultaneously
served on all parties. 20
Written requests for additional time to file exceptions must be made to the Secretary of
Labor, and copies must be simultaneously served on other parties. 21 Requests for
additional time must be received no later than three days before the exceptions are due.
22
Footnotes
Footnote 19. 41 CFR 60-30.28.
Footnote 20. 41 CFR 60-30.28.
Footnote 21. 41 CFR 60-30.28.
Footnote 22. 41 CFR 60-30.28.
1586 Responses to exceptions

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A party may submit a response to any exceptions filed regarding the recommendations
within 14 days after receiving those exceptions. 23 All such responses must be filed
with the Secretary of Labor, and must be simultaneously served on all parties. 24
Written requests for additional time within which to respond to exceptions concerning
recommendations must be made to the Secretary of Labor, and copies must be
simultaneously served on other parties. 25 Requests for additional time must be
received no later than three days before the responses are due. 26
Footnotes
Footnote 23. 41 CFR 60-30.28.
Footnote 24. 41 CFR 60-30.28.
Footnote 25. 41 CFR 60-30.28.
Footnote 26. 41 CFR 60-30.28.
1587 The record

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The record of the hearing 27 officially consists of the record for a recommended
decision, the rulings and recommended decision of the ALJ, 28 and the exceptions 29
and briefs filed after the hearing. 30
Footnotes
Footnote 27. 41 CFR 60-30.29.
Footnote 28. 1584.
Footnote 29. 1585.
Footnote 30. 1582.
(12). Final Administrative Orders [1588, 1589]
1588 Orders of the OFCCP

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When the time for filing briefs and exceptions has expired, the Secretary of Labor must
make a final decision based on the record, which constitutes the final administrative
order. 31 The final administrative order must be served on all parties. If the Secretary
finds that the defendant has violated Executive Order 11246, the equal opportunity
clause, or the pertinent regulations, the order will enjoin the violations, require the
contractor to provide whatever remedies are appropriate, and impose whatever sanctions
are appropriate. 32
Footnotes
Footnote 31. 41 CFR 60-30.29.
Footnote 32. 41 CFR 60-30.30.
1589 Orders of other contracting agencies

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When a contracting agency with primary responsibility for enforcing Executive Order
11246 has conducted the hearing, the hearing officer will make recommendations to the
head of the agency, who will make a decision. Decisions by agency heads are not final
without prior approval by the OFCCP Director. 33 When such hearings are conducted
by a hearing officer appointed by the OFCCP Director, the hearing officer will make
recommendations to him, and he will make the final decision. 34
Parties are entitled to copies of the hearing officer's recommendations, and will be given
an opportunity to submit their views. 35
Footnotes
Footnote 33. 18 CFR 1303.8-3(c) (TVA); 41 CFR 1-12.807-3(c) (FPR).
j. Expedited Hearing Proceedings [1590-1600]
1590 Generally
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Expedited hearing procedures may be used for resolving such matters as a violation of a
conciliation agreement, a failure to adopt and implement an acceptable affirmative action
plan, a refusal to give access to or to supply records or other information as required by
the equal opportunity clause, or a refusal to allow an on-site compliance review to be
conducted. 36
Footnotes
Footnote 36. 41 CFR 60-30.31.
1591 The administrative complaint

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Expedited hearings are started by the filing of an administrative complaint 37 in
accordance with the procedures applicable to other hearings. 38 The administrative
complaint must also state that the hearing is subject to the expedited hearing procedures.
39
Footnotes
Footnote 37. 41 CFR 60-30.32(a).
Footnote 38. 1533-1535.
Footnote 39. 41 CFR 60-30.32(a).
1592 Answering the complaint

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The defendant must file an answer to the complaint 40 in accordance with the
procedures applicable to other hearings. 41
Footnotes
Footnote 40. 41 CFR 60-30.32(d).
Footnote 41. 1536-1539.
1593 Failure to answer or request hearing; final order issued

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Failure to request a hearing within 20 days of the service of the complaint constitutes a
waiver of the hearing, and all material allegations of fact contained in the administrative
complaint will be considered admitted. 42
If a hearing is wavied or not requested in the answer within 25 days of filing the
complaint, the ALJ will adopt the material facts alleged in the administrative complaint
as findings of fact and will order the appropriate sanctions and/or penalties sought in the
complaint. 43
The ALJ's findings and order in those circumstances constitute a final administrative
order, unless the Office of the Solicitor of the Department of Labor files exceptions
within ten days of receiving the findings and order. 44 If the Office of the Solicitor
does file exceptions, the matter will proceed in accordance with the procedures applied
when exceptions are filed to a recommended hearing decision. 45
Footnotes
Footnote 42. 41 CFR 60-30.32(c).
Footnote 43. 41 CFR 60-30.32(c).
Footnote 44. 41 CFR 60-30.32(c).
Footnote 45. 41 CFR 60-30.32(c).
See 1585 and See 1586 as to such procedures.
1594 Limited discovery available

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A party may serve requests for admissions in accordance with the procedures applied in
other hearings. 46 Witness lists and proposed hearing exhibits are exchanged at least
ten days before the hearing. 47 Upon motion made in conformity with the procedures
applicable to other hearings, the ALJ may allow the taking of depositions 48 for good
cause shown. 49 Other types of discovery, however, are not permitted. 50
Footnotes
Footnote 46. 41 CFR 60-30.33(a).
Footnote 47. 41 CFR 60-30.33(b).
Footnote 48. 1562-1569.
Footnote 49. 41 CFR 60-30.33(c).
Footnote 50. 41 CFR 60-30.33(c).
1595 Time limits

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If a request for an expedited hearing is received within 20 days of service of the
complaint, a hearing will be convened within 45 days of receipt of that request, and the
hearing must be completed within 15 days, unless additional time is necessary. 51
Footnotes
Footnote 51. 41 CFR 60-30.32(d).
1596 Expedited hearing procedures

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At the expedited hearing, the government plaintiff will be given an opportunity to
demonstrate the basis for the request as well as for sanctions and/or remedies, and the
defendant contractor will be given an opportunity to show that the violation complained
of did not occur and/or that good cause or good-faith efforts excuse the alleged
violations. 52
An expedited hearing is informal, and the ALJ is not bound by formal rules of evidence.
53 However, both parties may present evidence and arguments and cross-examine
witnesses. 54
Footnotes
Footnote 52. 41 CFR 60-30.34(a).
Footnote 53. 41 CFR 60-30.34(b).
Footnote 54. 41 CFR 60-30.34(a).
1597 Time limits on briefs

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The ALJ may permit the parties to file written post-hearing briefs within the 15 days after
the expedited hearing, but his recommendations will not be delayed for the receipt of
briefs. 55 All briefs must be filed with the Secretary of Labor and served
simultaneously on all parties to the proceeding. 56
Footnotes
Footnote 55. 41 CFR 60-30.35.
Footnote 56. 41 CFR 60-30.36.
1598 Time limits on recommended decisions

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Within 15 days after an expedited hearing, the ALJ will recommend findings,
conclusions, and a decision. 57
The recommended decision will be served on all parties and amici to the expedited
hearing and certified with the record to the Secretary of Labor for a final administrative
order. 58
Footnotes
Footnote 57. 41 CFR 60-30.35.
Footnote 58. 41 CFR 60-30.35.
1599 Exceptions to recommendations; responses

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A party may submit exceptions to the ALJ's recommended findings, conclusions, and
decisions within ten days of receiving them. 59 All exceptions must be filed with the
Secretary of Labor and served simultaneously on all parties to the proceeding. 60
Within seven days of receiving exceptions to the recommended findings, a party may
submit a response to those exceptions. 61 All responses must be filed with the
Secretary of Labor and served simultaneously on all parties to the proceeding. 62
Footnotes
Footnote 59. 41 CFR 60-30.36.
Footnote 60. 41 CFR 60-30.36.
Footnote 61. 41 CFR 60-30.36.
Footnote 62. 41 CFR 60-30.36.
1600 Final administrative orders

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After the time for filing exceptions has expired, the Secretary of Labor issues a final
administrative order, which is served on all parties to the expedited hearing. 63 If the
Secretary does not issue a final administrative order within 30 days after the expiration of
the time for filing exceptions, the ALJ's recommended decision becomes a final
administrative order. That order becomes effective on the 31st day after the time for
filing exceptions has expired. 64
Except for when the Secretary does not issue the final order within the required 30 days,
the provisions applicable to final administrative orders in other hearings 65 apply to
expedited hearings. 66
Footnotes
Footnote 63. 41 CFR 60-30.37(a).
Footnote 64. 41 CFR 60-30.37(a).
Footnote 66. 41 CFR 60-30.37(a).
k. Cancellation and Debarment Proceedings [1601-1605]
1601 For failure to comply with final order

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Failure to comply with a final administrative order will result in immediate cancellation,
termination, and suspension of the defendant's government contracts, and/or debarment
from further contracts. 67
Footnotes
Footnote 67. 41 CFR 60-1.26(d), 60-30.30, 60-30.37.
1602 Procedures
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When the OFCCP Director, or the head of an agency upon prior notification to the
Director, proposes to cancel or terminate a contract, 68 or to debar a contractor or
subcontractor, 69 a written notice of the proposed action, signed by the Director or the
head of the agency, must be sent to the last-known address of the contractor or
subcontractor, return receipt requested.
The contractor or subcontractor will be given at least ten days from receipt of the notice
to either comply with the provisions of the contract or mail a request for a hearing to the
Director or agency. 70
During the ten-day notice period, reasonable efforts must
continue to be made to secure compliance by conference, mediation, and persuasion. 71
If no request for a hearing has been received at the end of the ten days, the Director or
head of the agency may cancel, suspend, or terminate the contract or subcontract, 72 or
enter an order debarring the contractor or subcontractor from further contracts until
compliance is attained. 73
Veterans' Administration regulations provide that the VA contract compliance officer
(with the approval of the OFCCP Director) must notify the offender in writing that the
VA intends to cancel or terminate his contract or subcontract and institute debarment
proceedings, and further provide that the offender must be advised that if he desires a
hearing he must submit the request to the VA contract compliance officer within ten days
after receipt of the notice. 74 If such request is not received within 20 days from the
filing of the administrative complaint, the matter will proceed in accordance with the
rules of practice for administrative hearings. 75
Footnotes
Footnote 68. 18 CFR 1303.6-9(b)(1) (TVA); 41 CFR 1-12.805-9(b)(1) (FPR); 41
CFR 8-12.805-9(b) (VA).
Footnote 70. 18 CFR 1303.6-9(b)(1), (c)(1) (TVA); 41 CFR 1-12.805-9(b)(1), (c)(1)
(FPR); 41 CFR 8-12.805-9(b) (VA).
Footnote 71. 18 CFR 1303.6-9(b)(1), (c)(1) (TVA); 41 CFR 1-12.805-9(b)(1), (c)(1)
(FPR).
Footnote 72. 18 CFR 1303.6-9(b)(2) (TVA); 41 CFR 1-12.805-9(b)(2) (FPR); 41
CFR 8-12.805-9(b) (VA).
Footnote 74. 41 CFR 8-12.810(c).
Footnote 75. 41 CFR 60-2.2(c)(2).
1603 Contractor's request for reinstatement

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A contractor or subcontractor who has been declared ineligible for further contracts under
Executive Order 11246 may request reinstatement in a letter to the OFCCP Director. 76
In any resulting reinstatement proceedings, the contractor must show it has established,
and will implement, employment policies and practices in compliance with the equal
opportunity clause. 77
Footnotes
Footnote 76. 18 CFR 1303.9 (TVA); 41 CFR 1-12.808 (FPR); 41 CFR 60-1.31
(OFCCP).
Footnote 77. 18 CFR 1303.9 (TVA); 41 CFR 1-12.808 (FPR); 41 CFR 60-1.31
(OFCCP).
1604 Reinstatement review

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The Director of the OFCCP will respond to a request for reinstatement by ordering a
special compliance review. The debarred contractor will be notified of the time and
place of the review, which will include a representative sample of, or all of, the
contractor's facilities. 78
During the review, special attention will be given to the deficiencies that caused the
debarment, 79 but all compliance deficiencies must be corrected prior to reinstatement,
not merely those that gave rise to the debarment. 80
Footnotes
1605 Reinstatement by Director

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As a condition of reinstatement, a contractor must enter into a consent decree detailing all
required corrective actions. 81
The Director of the OFCCP will make a final decision on reinstatement based on the case
record, the findings of the review, the corrective action taken, and the contractor's current
willingness and ability to comply with the requirements of the executive order. If the
Director agrees to reinstate the contractor, he will sign the proposed consent decree. 82
Footnotes
6. Rehabilitation and Veterans Act Proceedings [1606-1631]
1606 Generally
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The Office of Federal Contract Compliance Programs (OFCCP) is responsible for
administering programs to assure affirmative action by government contractors with
respect to handicapped workers and veterans under 503 of the Rehabilitation Act of
1973 and 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974
(VEVRA). Under the Rehabilitation Act 83 and the VEVRA, 84 covered government
contractors and subcontractors are required to take affirmative action to employ and
advance qualified individuals with disabilities and qualified disabled and Vietnam era
veterans, respectively. In order to achieve this purpose an affirmative action clause must
be included in every covered contract and subcontract 85 and specified contractors and
subcontractors must prepare and maintain a written affirmative action program. 86
The Director of the OFCCP has the primary enforcement responsibility for the
Rehabilitation Act 87 and VEVRA 88 and other contracting agencies must cooperate
with him in the performance of his duties. 89
Regulations:

through D).
Footnotes
Footnote 85. 41 CFR 60-250.4 (veterans); 41 CFR 60-741.4 (handicapped workers).
workers).
For a discussion of which government contractors are covered under these requirements
see 619 et seq. For a more detailed discussion of the standards for compliance and
affirmative action requirements under this legislation see 620 et seq.
Footnote 87. 41 CFR 60-741.25.
Footnote 88. 41 CFR 60-250.25.
workers).
1607 Labor Department supplemental hearing procedures

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The Department of Labor (DOL) has issued supplemental rules of practice and procedure
90 that govern administrative hearings before the Department's Office of Administrative
Law Judges in the absence of conflicting procedural requirements in applicable statutes,
Executive Orders, or regulations.
The supplemental rules are used by the DOL in proceedings to enforce, inter alia, civil
rights protections concerning federal contracts in handicap and veterans legislation. 91
and Executive Order 11246. 92 They do not apply if they are inconsistent with a rule of
procedure required by statute, Executive Order, or regulation. When a situation arises
that is not specifically covered by the supplemental hearing regulations or by a statute,
Executive Order, or regulation, the Rules of Civil Procedure for the U.S. district courts
are applied. 93
Footnotes
A detailed discussion of the supplemental hearing rules may be found in Employment
1608 Contractor's duty to provide information

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Each prime contractor and subcontractor is required to permit access during its normal
business hours to places of business, books, records, and accounts pertinent to
compliance with VEVRA 94 and the Rehabilitation Act. 95
1608 ----Contractor's duty to provide information [SUPPLEMENT]
Regulations:
Footnotes
Footnote 94. 41 CFR 60-250.53.
Footnote 95. 41 CFR 60-741.53.
1609 Compliance reviews

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Compliance reviews under VEVRA and the Rehabilitation Act are conducted in
accordance with the procedures outlined for compliance reviews under Executive Order
No. 11246, 96 with the exception that the information being reviewed for compliance
pertains to the statutory and regulatory requirements of VEVRA and the Rehabilitation
Act instead of the Executive Order. 97
Footnotes
Footnote 97. OFCCP Compliance Manual 2-80.3.
b. Individual Complaints [1610-1616]
1610 Filing, generally

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Any individual with disabilities, 98 or covered disabled or Vietnam era veteran, 99
who believes that a contractor has failed or refused to comply with the provisions of his
government contract relating to employment of such individuals may file an
administrative complaint. The complaint may be filed personally or by an authorized
representative of any employee or applicant for employment with a contractor. 1
A complaint alleging a violation of affirmative action obligations to veterans must be
filed with the Veteran's Employment Service of the Department of Labor through the
Local Veteran's Employment Representative (LVER), or his designee, at the local state
employment office. The LVER will refer the complaint to the OFCCP Director. 2
A complaint alleging a violation of affirmative action obligations to workers with
disabilities must be filed directly with the Director of the OFCCP. 3
1610 ----Filing, generally [SUPPLEMENT]

Regulations:
(ancillary matters). Complaint procedures are now covered in 41 CFR 60-741.61.
Footnotes
workers).
Footnote 2. 41 CFR 60-250.26(a).
Footnote 3. 41 CFR 60-741.26(a).

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Complaints must be filed within 180 days from the date of the alleged violation, unless
the time for filing is extended by the OFCCP's Director upon a showing of good cause. 4
1611 ----Time limits for filing [SUPPLEMENT]
Regulations:

Case authorities:
Terminated custodian's suit against long-term employer under 29 USCS 793 must be
dismissed, even though deadline for filing motion to dismiss had passed, because 793
does not state that private individual may sue under statute, and legislative history does
not clearly indicate that Congress intended that there be private right of action under
statute. Ortega v Rhone-Poulenc of Wyo., L.P. (1994, DC Wyo) 842 F Supp 488, 4 ADD
619, 2 AD Cas 1802.
Footnotes
workers).
1612 Contents
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A complaint, must be written, 5 and signed by the complainant or his authorized
representative, and must contain;
(1) the name, address, and telephone number of the complainant;
(2) the name and address of the contractor or subcontractor who committed the alleged
affirmative action violation;
(3) a description of the acts alleged to be a violation; and
(4) any other pertinent and available information that would assist in the investigation
and resolution of the complaint, including the name of any known federal agency with
which the contractor has contracted. 6
1612 ----Contents [SUPPLEMENT]
Regulations:
Footnotes
workers).
Footnote 6. 41 CFR 60-250.26(c) (veterans); 41 CFR 60-741.26(c) (handicapped
workers).
Forms: ComplaintsTo administrative agencyDiscrimination in employment. 5A
Am Jur Pl & Pr Forms (Rev), Civil Rights, Forms 81 et seq.
1613 Special requirements for complaints of individuals with disabilities

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A disabled person's complaint must include either a signed statement that the individual
has a disability, has a history of disability, or some other documentation of impairment,
or a statement that the individual was regarded by the contractor as having an
impairment. 7 If the OFCCP Director determines that further documentation on the
matter of the "disability" status of a complainant is necessary, the complainant may be
required to provide additional information. 8
1613 ----Special requirements for complaints of individuals with disabilities
[SUPPLEMENT]
Regulations:

Footnotes
Footnote 7. 41 CFR 60-741.26(c)(4).
Footnote 8. 41 CFR 60-741.7(a).
1614 Special requirements for veterans' complaints

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A complaint by a veteran must include a copy, updated within one year prior to the date
of filing, of the veteran's form DD-214, and where applicable, VAL-5 or a similar VA
certification, indicating the disability 9 and the percent of disability. 10
Footnotes
Footnote 9. 41 CFR 60-250.7.
Footnote 10. 41 CFR 60-250.26(c)(4).
1615 Effect of failure to provide information

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If a complaint contains incomplete information, the OFCCP's Director may seek the
needed information from the complainant, and if the information is not furnished within
60 days of the request, the case may be closed. 11
1615 ----Effect of failure to provide information [SUPPLEMENT]

Regulations:
Footnotes
Footnote 11. 41 CFR 60-250.26(d) (veterans); 41 CFR 60-741.26(d) (handicapped
workers).
1616 Overlapping OFCCP and EEOC jurisdiction

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The OFCCP's and the EEOC's regulations for enforcement of the ADA and 503 of the
Rehabilitation Act where jurisdiction over complaints under these laws overlap do not
affect the OFCCP's conduct of compliance reviews of government contractors and
subcontractors under 503. 12
When a complaint or charge is covered by both the ADA and 503 of the Rehabilitation
Act, it will be considered simultaneously dual filed under both statutes. 13 When the
OFCCP processes a dual-filed charge, it will follow the legal standards applicable under
the ADA in determining whether an employer has engaged in unlawful employment
practices. 14
How a particular charge will be treated depends on which agency receives it first and the
substance of the allegations. For instance, the OFCCP will process all 503/ADA
charges it receives first except those complaints that:
raise Priority List issues; or
contain allegations of discrimination of an individual nature on the basis of race, color,

religion, sex, national origin or age, provided that such a complaint does not include
allegations regarding 503 affirmative action requirements. 15
Observation: A Priority List issue is one of a limited number of controversial topics

on which there is no definitive guidance as to the EEOC's position. The Priority List
will be jointly developed and periodically reviewed by the EEOC and the Department
of Labor. 16
The OFCCP also will refer to the EEOC for a litigation decision under the ADA any
dual-filed complaint where a violation has been found, conciliation has failed, and the
OFCCP has declined to pursue administrative enforcement. Additionally, the OFCCP
will refer to the EEOC any charge that the OFCCP has pursued through administrative
litigation and where the charge has been dismissed:
on procedural or jurisdictional grounds; or
because the contractor failed to comply with an order to provide make-whole relief. 17
If it receives a dual-filed claim involving affirmative action requirements, the OFCCP
will bifurcate the claim and refer any Priority List issue or allegation of discrimination on
an illegal basis other than disability to the EEOC and retain the remainder of the charge
for processing. Furthermore, the OFCCP will normally handle any allegation of a
systemic or class nature it receives if it has jurisdiction. 18
1616 ----Overlapping OFCCP and EEOC jurisdiction [SUPPLEMENT]
Regulations:
Footnotes
Footnote 12. 29 CFR 1641.1, 41 CFR 60-741.1.
Footnote 14. 29 CFR 1641.4, 41 CFR 60-742.4.
Footnote 15. 29 CFR 1641.5(e), 41 CFR 60-742.5(e).

Footnote 16. 29 CFR 1641.8, 41 CFR 60-742.8.
Footnote 17. 29 CFR 1641.5(e)(2)(ii), 41 CFR 60-742.5(e)(2)(ii).
Footnote 18. 29 CFR 1641.5(e), 41 CFR 60-742.5(e).
For EEOC's procedures for processing 503/ADA charges that have been filed first with
the EEOC, see 1376 et seq.; as to the applicable conciliation standards, see 1623;
as to information disclosure requirements, see 1956 et seq.
c. Investigation by Contractor [1617-1619]
1617 Referring complaint to contractor

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When a complaint is filed by an employee of a contractor, and the contractor has an
applicable internal review procedure, the complaint will be referred to the contractor for
processing. 19 If the complaint has not been resolved to the complainant's satisfaction
within 60 days of the referral, the complaint must be referred to the Department of Labor
for further proceedings. 20
1617 ----Referring complaint to contractor [SUPPLEMENT]
Regulations:
Footnotes

workers); OFCCP Compliance Manual 6-60.1.
workers); OFCCP Compliance Manual 6-60.6.
1618 Confidentiality of contractor processing

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The contractor who is processing a complaint internally must keep the complaint and all
actions taken thereunder confidential. 21
1618 ----Confidentiality of contractor processing [SUPPLEMENT]
Regulations:
Footnotes
workers).
1619 Resolution of complaint by contractor processing

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If a complaint is resolved by a contractor's internal review procedures within a 60-day
period, the contractor must send the OFCCP a written report which provides the facts and
issues in the dispute, as well as the nature of the resolution. 22
The OFCCP must find the resolution to be fair and just for both parties 23 and must
obtain a written concurrence from the complainant that he is satisfied with the resolution.
24
Footnotes
d. Investigation by OFCCP [1620-1625]
1620 Generally; case record

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The Department of Labor (through the OFCCP) is responsible for promptly investigating
all complaints. 25
An investigation's case record consists of copies or summaries of pertinent documents, a
narrative summary of the evidence disclosed in the investigation, and recommended
findings and resolutions. 26
The OFCCP inadequately investigated a telephone company's employees' charges under
29 USCS 793 where the agency's case records indicated that it made its decision by
merely considering the charges and the company's responses to them. 27
1620 ----Generally; case record [SUPPLEMENT]
Regulations:
Footnotes
Footnote 25. 29 USCS 793(b) (handicapped workers); 38 USCS 4212(b) (veterans).
Footnote 26. 41 CFR 60-250.26(e) (veterans); 41 CFR 60-741.26(e) (handicapped
workers).
Footnote 27. Communications Workers of America v Donovan (1985, SD NY) 37 BNA
FEP Cas 1362, 38 CCH EPD 35733.
1621 No violation; notice to complainant of final action

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The complainant is entitled to notice if the complaint investigation shows no violation of
affirmative action obligations, or if the OFCCP Director decides not to initiate
administrative or legal proceedings against the contractor. 28
An agency's decision not to take enforcement action should be presumed immune from
judicial review. The presumption may be rebutted where the statute provides guidelines
for the agency to follow in exercising its enforcement powers, since a court would then
have a meaningful standard to use in judging the agency's exercise of discretion. 29
Accordingly, since neither the Rehabilitation Act nor the implementing regulations limit
the DOL's discretion in choosing which claims to pursue, its prosecutorial decisions are
not subject to judicial review. 30
Even if an OFCCP investigation reveals a violation of the Rehabilitation Act, the
Director's decision not to initiate administrative or legal proceedings against the
contractor is absolute and unreviewable. 31
In addition, since there are similar enforcement provisions in the Vietnam Era Veterans'
Readjustment Assistance Act, the agency's decision to forgo enforcement action under
that Act was immune from judicial review. 32
Footnotes
Footnote 28. 41 CFR 60-250.26(g)(1) (veterans); 41 CFR 60-741.26(g)(1)

(handicapped workers).
Footnote 29. Heckler v Chaney (1985) 470 US 821, 84 L Ed 2d 714, 105 S Ct 1649, 15
ELR 20335.
Footnote 30. Andrews v Consolidated Rail Corp. (1987, CA7) 44 BNA FEP Cas 786.
Footnote 31. Kilmer v U.S. Dept. of Labor (1989, SD NY) 52 BNA FEP Cas 835.
Footnote 32. Clementson v Brock (1986, CA9) 806 F2d 1402, 124 BNA LRRM 2422, 33
CCF 74923, 42 CCH EPD 36792.
1622 --Complainant requests review

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Within 30 days of receiving notice that the OFCCP has found no affirmative action
violations after an investigation, or a notice that administrative or legal proceedings will
not be taken against the contractor named in a complaint, the complainant may request a
review by the Director of a finding or decision. 33
1622 --Complainant requests review [SUPPLEMENT]
Regulations:
Footnotes
1623 Violation found; conciliation attempts

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If the investigation of a complaint indicates that the contractor has not complied with its
affirmative action obligations, efforts must be made to secure compliance through
conciliation and persuasion within a reasonable time. 34
When engaging in conciliation in a complaint that falls under the overlapping jurisdiction
of the OFCCP and the EEOC under 503 of the Rehabilitation Act and the ADA, the
OFCCP will seek appropriate "full relief" for the complainant consistent with the EEOC's
standards for remedies. 35 "Full relief" includes "make whole relief" and, where
appropriate under the ADA, compensatory and punitive damages. 36
If the OFCCP does not secure compensatory or punitive damages that are appropriate
under the ADA, the conciliation attempt is not considered successful. In such a case, the
OFCCP will close the 503 component of the complaint and refer the ADA charge to the
EEOC for a litigation decision. If the EEOC declines to litigate, it will close the charge
and issue a notice of right-to-sue. 37
1623 ----Violation found; conciliation attempts [SUPPLEMENT]
Regulations:
Footnotes
Footnote 35. 29 CFR 1641.5(e)(2), 41 CFR 60742.5(e)(2).
Footnote 36. 57 Fed Reg 2961, 1/24/92.

Footnote 37. 29 CFR 1641.5(e)(2)(ii), 41 CFR 60-742.5(e)(2)(ii).
1624 --Types of available enforcement

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If conciliation attempts are unsuccessful in resolving alleged violations, the Director of
the OFCCP may take appropriate enforcement action. 38 This action may include:
instituting judicial action, including appropriate injunctive relief, to enforce the
provisions of the affirmative action clause; 39
withholding as much of the accrued payment due on a contract between the prime
contractor and the government as is necessary to correct any violations; 40
cancelling or terminating, in whole or in part, the contract or subcontract; 41
debarring the contractor or subcontractor from receiving future government contracts.
42
1624 --Types of available enforcement [SUPPLEMENT]
Regulations:
Footnotes
workers).

workers).
workers).
workers).
workers).
1625 --Contractor's right to hearing

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If conciliation efforts are not successful in resolving an alleged violation concerning a
contractor's affirmative action obligations, the contractor has a right to a hearing. 43
1625 --Contractor's right to hearing [SUPPLEMENT]
Regulations:
Footnotes
For a discussion of the procedures applicable to such hearings see 1627.
e. Formal Hearings [1626, 1627]
1626 Contractor's right to hearing

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A contractor is entitled to an opportunity for a formal hearing when:
after an investigation, a finding of a violation is not resolved by informal means and the
contractor requests a hearing;
the Director of the OFCCP proposes cancellation or termination of a contract or the
withholding of progress payments, either in whole or in part;
the Director proposes to declare the prime contractor or subcontractor ineligible for
future contracts. 44
1626 ----Contractor's right to hearing [SUPPLEMENT]
Regulations:
(ancillary matters). Hearing practice and procedure is now covered in 41 CFR
60-250.65(b).
Footnotes
workers).
1627 Procedures
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With two exceptions, formal hearing procedures for contractors charged with a violation
of VEVRA 45 or the Rehabilitation Act 46 are identical to administrative hearing
proceedings for the enforcement of Executive Order 11246. 47
Formal hearing procedures for the Rehabilitation Act and VEVRA are different from
Executive Order No. 11246 hearings in only two respects: (1) the administrative law
judge's recommended findings and decision are certified to the Assistant Secretary,
Employment Standards Administration, rather than to the Secretary of Labor; 48 and
(2) exceptions to the recommended decisions are filed with the Assistant Secretary, who
issues the final administrative order. 49
1627 ----Procedures [SUPPLEMENT]
Regulations:
(ancillary matters). Hearing practice and procedure is now covered in 41 CFR
60-250.65(b).
Footnotes
Footnote 45. 41 CFR 60-250.29(b)(1).
Footnote 46. 41 CFR 60-741.29(b)(1).
Footnote 48. 41 CFR 60-250.29(b)(3) (veterans); 41 CFR 60-741.29(b)(3)
Footnote 49. 41 CFR 60-250.29(b)(3) (veterans); 41 CFR 60-741.29(b)(3)
f. Post-Enforcement Proceedings [1628, 1629]
1628 Contracting agencies notified of enforcement

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After enforcement actions have been taken against a contractor for noncompliance with
the Rehabilitation Act, 50 or VEVRA, 51 the Director of the OFCCP will notify the
heads of all contracting agencies.
1628 ----Contracting agencies notified of enforcement [SUPPLEMENT]
Regulations:
(ancillary matters). Notification of agencies is now covered in 41 CFR 60-741.67
Footnotes
Footnote 50. 41 CFR 60-741.30.
Footnote 51. 41 CFR 60-250.30.
1629 Ineligibility list

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The Director of the OFCCP must periodically distribute a list to all contracting agencies
containing the names of prime contractors and subcontractors who have been declared
ineligible for government contracts under regulations pursuant to the VEVRA 52 and
the Rehabilitation Act. 53
1629 ----Ineligibility list [SUPPLEMENT]
Regulations:
Footnotes
Footnote 52. 41 CFR 60-250.31.
Footnote 53. 41 CFR 60-741.31.
g. Reinstatement After Debarment [1630, 1631]
1630 Contractor's request for reinstatement

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A contractor who has been debarred from future government contracts under the VEVRA
54 or the Rehabilitation Act 55 may request reinstatement in a letter to the Director of
the OFCCP.
1630 ----Contractor's request for reinstatement [SUPPLEMENT]
Regulations:

Footnotes
Footnote 54. 41 CFR 60-250.50.
Footnote 55. 41 CFR 60-741.50.
1631 Requirements for reinstatement

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A debarred contractor seeking reinstatement from the Director of the OFCCP must show
that it has established and will carry out employment policies and practices in compliance
with the affirmative action clauses required by the statutes. 56
1631 ----Requirements for reinstatement [SUPPLEMENT]
Regulations:
Footnotes
workers).
7. Proceedings Involving Recipients of Federal Aid [1632-1720]
a. Title VI Cases [1632-1666]
(1). Administrative Responsibilities [1632-1641]
1632 Funding agencies' authority to regulate

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Title VI of the 1964 Civil Rights Act prohibits discrimination on grounds of race, color,
or national origin with regard to any program or activity receiving federal financial
assistance, 57 if the primary objective of such assistance is to provide employment. 58
Federal departments and agencies empowered to provide financial assistance may
implement the nondiscriminatory provisions of Title VI through rules, regulations and
orders approved by the President. 59
Footnotes
For an overview of the requirements of Title VI, see 25 et seq.
1633 Attorney General's authority to regulate

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The President's authority to approve the rules and regulations of funding agencies under
Title VI 60 has been delegated to the Attorney General, 61 who coordinates the
implementation and enforcement of the nondiscrimination provisions of Title VI, 62
develops standards and procedures for compliance and enforcement, 63 and issues
regulations he finds necessary to carry out these functions. 64
The Attorney General has further delegated these responsibilities to the Assistant
Attorney General, Civil Rights Division. 65
Footnotes
Footnote 60. 1632.
Footnote 61. Ex Or 12250 1-101.
Footnote 62. Ex Or 12250 1-201.
Footnote 63. Ex Or No. 12250 1-203.
Footnote 64. Ex Or 12250 1-303.
1634 Cooperation of funding agencies with Attorney General

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Each agency of the Executive Branch must cooperate with the Attorney General in the
performance of his responsibilities concerning Title VI, 66 including furnishing reports
and information requested 67 and submitting any implementing regulations or policies
for approval before they take effect. 68
Footnotes
Footnote 66. 1633.
Footnote 67. Ex Or 12250 1-401.
Footnote 68. Ex Or 12250 1-402.
1635 Cooperation of funding agencies with each other

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Where each of a substantial number of employer recipients of federal aid receives
assistance for similar purposes from two or more funding agencies, or where two or more
agencies cooperate in administering federal assistance for a particular class of employer
recipients, the agencies must (1) jointly coordinate compliance with Title VI, 69 and (2)
designate one agency as the lead agency for compliance purposes by a written delegation
agreement. A copy of the delegation agreement must be provided to the Assistant
Attorney General and be published in the Federal Register. 70
In order to accomplish these objectives, written procedures must be created to
standardize compliance requirements by all of the involved agencies, 71 and notification
of investigations and findings sent to any funding agency whose jurisdiction is
discovered in the course of such proceedings. 72 The EEOC or OFCCP, respectively,
will be notified of any possible violations of Title VII or Executive Order 11246. 73
Footnotes
Footnote 69. 28 CFR 42.413(a)(1).
Footnote 70. 28 CFR 42.413(a)(2).
1636 Primary enforcement responsibility

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Primary enforcement responsibility for Title VI rests with the head of each federal
department or agency administering financial assistance programs. An agency head or
his designated representative retains the authority to select which of the available
sanctions is appropriate, the best method to secure compliance in individual cases, and
the ultimate decision to terminate or refuse financial assistance. 74
Footnotes
1637 Funding agency enforcement plans

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Each funding agency must develop a written plan that sets out enforcement priorities and
procedures for effectuating Title VI. The plan must be available for public inspection,
and must address such matters as:
the method for selecting recipients for compliance reviews;
the establishment of timetables and controls for compliance reviews;
the procedure for handling complaints;
the allocation of staff to different compliance functions;
the development of guidelines, including determinations as to when guidelines are not
appropriate;
the provision of civil rights training for its staff. 75
Footnotes
1638 Funding agency compliance guidelines

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Each funding agency responsible for the enforcement of Title VI must publish guidelines
for each type of program under which financial assistance is extended in order to provide
detailed information on the compliance requirements of that statute. Those guidelines
must describe:
the nature of Title VI coverage;
methods of enforcing Title VI;
examples of prohibited practices in the context of the particular program;
required or suggested remedial action;
the nature of requirements relating to covered employment;

data collection;
complaints;
public information. 76
When a funding agency determines that guidelines are not appropriate for any type of
program under which financial assistance is provided, the reasons for that determination
must be made in writing and be available to the public upon request. 77
Footnotes
1639 Pre-funding reviews

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Before providing federal financial assistance, the funding agency makes a written
determination as to whether the employer/applicant is in compliance with Title VI, based
on an assurance of compliance and a review of the data submitted by the employer. 78
Where a determination cannot be made from this data, the funding agency has a duty to
require the employer to submit any additional information necessary to make such a
determination, and to take other necessary steps, including communicating with local
government officials and minority group organizations and conducting field reviews. 79
Footnotes
For a discussion of what data an employer must provide to a funding agency that
disburses federal financial assistance covered by Title VI, see 1909 et seq.
1640 Compliance reviews
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Each department and agency covered by Title VI makes periodic compliance reviews to
determine whether the recipients of aid are complying with Title VI's nondiscrimination
requirements. 80
The reviews require periodic submissions of compliance
reports from employers receiving federal financial assistance, and may also involve field
reviews conducted under agency procedures and standards contained in official manuals.
81
A compliance review must include specific findings of fact and recommendations that
will be communicated in writing to the employer as promptly as possible. 82 If a
determination of probable noncompliance is discovered during the compliance review,
the funding agency must notify the Assistant Attorney General promptly. 83
1640 ----Compliance reviews [SUPPLEMENT]
Regulations:
Footnotes
Footnote 80. 7 CFR 15.5(a) (Department of Agriculture); 10 CFR 4.41 (Nuclear
Regulatory Commission); 13 CFR 112.10(a) (Small Business Administration); 14 CFR
379.6(a) (Civil Aeronautics Board); 14 CFR 1250.106(a) (National Aeronautics and
Space Administration); 15 CFR 8.7(e) (Department of Commerce); 22 CFR 141.6(a)
(Department of State); 24 CFR 1.7(a) (Department of Housing and Urban
Development); 28 CFR 42.107(a) (Department of Justice); 29 CFR 31.7(a)
(Department of Labor); 32 CFR 300.8(a) (Department of Defense); 43 CFR 17.6(a)
(Department of the Interior); 45 CFR 80.7(a) (Department of Health and Human
Services); 45 CFR 611.7(a) (National Science Foundation); 45 CFR 1110.7(a)
(National Foundation on the Arts and the Humanities); 45 CFR 1203.7(a) (ACTION);
49 CFR 21.11(a) (Department of Transportation).
Footnote 81. 28 CFR 42.407(c)(1).
Footnote 82. 28 CFR 42.407(c)(2).
1641 Employer's duty to provide information

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An employer seeking federal financial assistance from a particular funding agency must
collect data and provide information to that agency that is sufficient to permit effective
enforcement of Title VI. 84
Footnotes
For a discussion of what records and information are required to be supplied by an
employer seeking federal financial assistance, see 1909 et seq.
(2). Complaints [1642-1648]

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A complaint filed under Title VI against an employer receiving federal financial
assistance must meet the time limitations specified in the regulations of the funding
agency, unless the time is extended by the head of the funding agency or another
responsible official. 85
Questions concerning the ability to file a complaint
and the appropriate time limitations involved should be addressed in the enforcement
plan of the monitoring agency. 86
1642 ----Time limits for filing [SUPPLEMENT]
Regulations:
Footnotes
Footnote 85. 7 CFR 15.6 (Department of Agriculture180 days); 10 CFR 4.42
(Nuclear Regulatory Commission90 days); 13 CFR 112.10(b) (Small Business

Administration180 days); 14 CFR 379.6(b) (Civil Aeronautics Board90 days); 14
CFR 1250.106(b) (National Aeronautics and Space Administration90 days); 15 CFR
8.8 (Department of Commerce180 days); 22 CFR 141.6(b) (Department of
State180 days); 24 CFR 1.7(b) (Department of Housing and Urban Development180
days); 28 CFR 42.107(b) (Department of Justice180 days); 29 CFR 31.7(b)
(Department of Labor180 days); 32 CFR 300.8(b) (Department of Defense180
days); 43 CFR 17.6(b) (Department of the Interior180 days); 45 CFR 80.7(b)
(Department of Health, and Human Services 180 days); 45 CFR 611.7(b) (National
Science Foundation90 days); 45 CFR 1110.7(b) (National Foundation on the Arts and
the Humanities90 days); 45 CFR 1203.7(b) (ACTION180 days); 49 CFR 21.11(b)
(Department of Transportation180 days).
Footnote 86. 1637.
1643 Lack of jurisdiction; referral to appropriate agency

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If a funding agency lacks jurisdiction over a Title VII complaint, it shall, wherever
possible, refer the complaint to a federal agency that has jurisdiction and advise the
complainant as to what action is appropriate. 87
Footnotes
For a discussion of the joint complaint processing regulations, promulgated by both the
Department of Justice (DOJ) and the EEOC, concerning complaints that fall under the
coverage of both Title VII and Title VI, see 1672 et seq.
1644 Required investigation

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According to the Department of Justice (DOJ), funding agencies should investigate all
complaints having apparent merit under Title VI. If an investigation is not undertaken,
there must be good cause for such action, and it must be stated in the notification of
disposition. 88 Most funding agency regulations require an investigation to be
conducted whenever a complaint indicates possible noncompliance with Title VI
requirements or their implementing regulations. 89

1644 ----Required investigation [SUPPLEMENT]
Regulations:
Footnotes
As to notification, see 1646.
Footnote 89. 7 CFR 15.6 (Department of Agriculture); 10 CFR 4.43 (Nuclear
Regulatory Commission); 13 CFR 112.10(c) (Small Business Administration); 14 CFR
379.6(c) (Civil Aeronautics Board); 14 CFR 1250.106(c) (National Aeronautics and
Space Administration); 15 CFR 8.10(a) (Department of Commerce); 22 CFR
141.6(c) (Department of State); 24 CFR 1.7(c) (Department of Housing and Urban
Development); 28 CFR 42.107(c) (Department of Justice); 29 CFR 31.7(c)
(Department of Labor); 32 CFR 300.8(c) (Department of Defense); 43 CFR 17.6(c)
(Department of the Interior); 45 CFR 80.7(c) (Department of Health and Human
Services); 45 CFR 611.7(c) (National Science Foundation); 45 CFR 1110.7(c)
(National Foundation on the Arts and the Humanities); 45 CFR 1203.7(c) (ACTION);
49 CFR 21.11(c) (Department of Transportation).
1645 Employer processing of complaints

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Some funding agencies require or permit the employer that receives federal financial
assistance to initially process Title VI complaints. In such circumstances, DOJ
regulations require funding agencies to certify the employer's complaint procedures as
adequate. 90 The investigation and disposition of such complaints must be submitted in
a written report to the funding agency, which retains review responsibility for each
complaint. 91
Footnotes
1646 No violation found; notification

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A funding agency must notify the complainant and the respondent, in writing, as to the
disposition of any complaint filed under Title VI, 92 and if an investigation of a Title VI
complaint reveals no violation, and no further action is warranted, the funding agency
will notify the complainant and respondent in writing. 93
1646 ----No violation found; notification [SUPPLEMENT]
Regulations:
Footnotes
Footnote 93. 29 CFR 31.7(d) (Department of Labor); 7 CFR 15.5(a) (Department of
Agriculture); 10 CFR 4.44 (Nuclear Regulatory Commission); 13 CFR 112.10(d)(1)
(Small Business Administration); 14 CFR 379.6(d) (Civil Aeronautics Board); 14 CFR
1250.106(d) (National Aeronautics and Space Administration); 15 CFR 8.10(b)
(Department of Commerce); 22 CFR 141.6(d) (Department of State); 24 CFR 1.7(d)
(Department of Housing and Urban Development); 28 CFR 42.107(d) (Department of
Justice); 32 CFR 300.8(d) (Department of Defense); 43 CFR 17.6(d) (Department of
the Interior); 45 CFR 80.7(d) (Department of Health and Human Services); 45 CFR
611.7(d) (National Science Foundation); 45 CFR 1110.7(d) (National Foundation on
the Arts and the Humanities); 45 CFR 1203.7(d) (ACTION); 49 CFR 21.11(d)
1647 Violation found; conciliation attempts

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If the investigation of a Title VI complaint reveals a possible violation, the funding
agency will notify the respondent and must resolve the matter by informal means,
whenever possible. 94
1647 ----Violation found; conciliation attempts [SUPPLEMENT]
Regulations:
Footnotes
Footnote 94. 29 CFR 31.7(d) (Department of Labor); 7 CFR 15.5(a) (Department of
Agriculture); 10 CFR 4.44 (Nuclear Regulatory Commission); 13 CFR 112.10(d)(1)
(Small Business Administration); 14 CFR 379.6(d) (Civil Aeronautics Board); 14 CFR
1250.106(d) (National Aeronautics and Space Administration); 15 CFR 8.10(b)
(Department of Commerce); 22 CFR 141.6(d) (Department of State); 24 CFR 1.7(d)
(Department of Housing and Urban Development); 28 CFR 42.107(d) (Department of
Justice); 32 CFR 300.8(d) (Department of Defense); 43 CFR 17.6(d) (Department of
the Interior); 45 CFR 80.7(d) (Department of Health and Human Services); 45 CFR
611.7(d) (National Science Foundation); 45 CFR 1110.7(d) (National Foundation on
the Arts and the Humanities); 45 CFR 1203.7(d) (ACTION); 49 CFR 21.11(d)
As to voluntary compliance efforts, see 1664 et seq.
1648 Employer's record of complaints

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Employers covered under Title VI by virtue of receiving federal financial assistance must
keep a record of all complaints made under Title VI. The record is to contain the
following information:
an identification of each complainant by race, color, or national origin;
the nature of the complaint;
the date the complaint was filed;
the date the investigation was completed;

the disposition of the complaint;
the date of the disposition of the complaint;
any other pertinent information required by the funding agency. 95
Footnotes
(3). Hearings [1649-1657]
1649 Generally
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Whenever a funding agency wishes to terminate continued federal financial assistance, or
wishes to refuse to grant assistance, an employer receiving or seeking funding has a right
to a hearing before the agency can take action. 96
Footnotes
1650 Notification
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An employer receiving federal financial assistance must be given notice by registered or
certified mail whenever it is entitled to a hearing concerning alleged noncompliance with
Title VI. 97
The notice must either (1) fix a date not less than 20 days within
which the employer may request a scheduled hearing date, or (2) advise the employer that
a hearing has been scheduled at a stated place and time, which is subject to change for
cause. 98
The notice must also advise the employer of the action proposed to
be taken, the basis for the action, and the specific antidiscrimination provisions at issue.
99
The Department of Justice must also be notified by the funding agency in advance of
hearings to be scheduled and kept advised of the progress and results of all hearings. 1
1650 ----Notification [SUPPLEMENT]
Regulations:
Footnotes
Regulatory Commission, which, however, makes no provision for scheduling a hearing,
unless the answer requests one); 13 CFR 112.12(a) (Small Business Administration);
14 CFR 379.9(a) (Civil Aeronautics Board); 14 CFR 1250.108(a) (National
Aeronautics and Space Administration); 15 CFR 8.12(a) (Department of Commerce);
22 CFR 141.8(a) (Department of State); 24 CFR 1.9(a) (Department of Housing and
Urban Development); 28 CFR 42.109(a) (Department of Justice); 29 CFR 31.9(a)
141.8(a) (Department of State); 24 CFR 1.9(a) (Department of Housing and Urban

Footnote 1. 28 CFR 50.3 V.
1651 Waiver of hearing

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An employer that receives notification of hearing 2 may choose to waive its right to a
hearing and submit written information and argument for the record. 3
An employer that fails to request a hearing, or fails to appear at a hearing, will be
considered to have waived its right to a hearing, and a decision will be made on the basis
of information that is available. 4
1651 ----Waiver of hearing [SUPPLEMENT]
Regulations:
Footnotes
Footnote 2. 1650.

1652 Who conducts hearings

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The hearing procedures promulgated by each agency specify the person before whom a
Title VI hearing is conducted. 5
1652 ----Who conducts hearings [SUPPLEMENT]
Regulations:
Footnotes
Footnote 5. 7 CFR 15.9(b) (Department of Agriculturebefore a hearing officer); 10
CFR 4.61 (Nuclear Regulatory Commissionbefore one or more members of the
Commission or one or more administrative law judges); 13 CFR 112.12(b) (Small
Business Administrationbefore a hearing examiner); 14 CFR 379.8(b) (Civil
Aeronautics Boardbefore the Board or a hearing examiner); 14 CFR 1250.108(b)
(National Aeronautics and Space Administrationbefore the Administrator or a hearing
examiner); 15 CFR 8.12(b) (Department of Commercebefore the responsible
Department official or a hearing officer); 22 CFR 141.8(b) (Department of
Statebefore an official designated by the Secretary other than the responsible
Department official); 24 CFR 1.9(b) (Department of Housing and Urban
Developmentbefore the responsible Department official or a hearing officer); 28 CFR
42.109(b) (Department of Justicebefore the responsible Department official or a hearing
officer); 29 CFR 31.9(b), (Department of Laborbefore the Secretary or before a
hearing examiner); 32 CFR 300.10(c) (Department of Defensethe examiner shall be a
field-grade officer or civilian employee above the grade of GS-12, or the equivalent, who
shall be a person admitted to practice law before a federal court or the highest court of a
state); 43 CFR 17.8(b) (Department of the Interiorbefore an administrative law

judge); 45 CFR 80.9(b) (Department of Health and Human Servicesbefore a hearing
examiner); 45 CFR 611.9(b) (National Science Foundationbefore the responsible
Foundation officer or a hearing examiner); 45 CFR 1110.9(b) (National Foundation on
the Arts and the Humanitiesbefore responsible endowment official or a hearing
examiner); 45 CFR 1203.9(b) (ACTIONbefore the Director or a hearing examiner);
49 CFR 21.15(b) (Department of Transportationbefore the Secretary or a hearing
examiner).
1653 Right to counsel

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In Title VI hearings, both the employer and the agency involved are given the right to be
represented by counsel. 6
1653 ----Right to counsel [SUPPLEMENT]
Regulations:
Footnotes
Footnote 6. 7 CFR 15.9(c) (Department of Agriculture); 10 CFR 4.62 (Nuclear
Space Administration); 15 CFR 8.12(c) (Department of Commerce); 22 CFR
141.8(c) (Department of State); 24 CFR 1.9(c) (Department of Housing and Urban
Development); 28 CFR 42.109(c) (Department of Justice); 29 CFR 31.9(c)
(Department of Labor); 32 CFR 300.10(d) (Department of Defense); 43 CFR 17.8(c)
Services); 45 CFR 611.9(c) (National Science Foundation); 45 CFR 1110.9(c)
1654 Hearing procedures
View Entire Section

Specific rules of procedure for Title VI hearings have been promulgated by each funding
agency, such as the Department of Agriculture, 7 the Department of Housing and Urban
Development, 8 and the Department of Health and Human Services. 9 These hearing
procedures cannot be inconsistent with the requirements of the Administrative Procedure
Act. 10
Footnotes
1655 Rules of evidence

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Technical rules of evidence do not apply to Title VI hearings conducted by funding
agencies. The rules of evidence promulgated by funding agencies for such hearings
commonly provide for:
assurances that the most credible evidence available is being produced;
the opportunity to cross-examine any testimony;
the exclusion of irrelevant, immaterial, or unduly repetitious evidence;
the examination by all parties of documents and other evidence offered or excepted into
the record;
an opportunity to refute facts and arguments advanced on either side of the matters at
issue. 11
1655 ----Rules of evidence [SUPPLEMENT]
Regulations:
Case authorities:
For purposes of 29 USCS 1853(c), substantial evidence, which must support
Secretary's conclusion, is such relevant evidence as reasonable mind might accept as
adequate to support conclusion; it is more than mere scintilla, and less than
preponderance. Garcia v Secretary of Labor (1993, CA5 Tex) 10 F3d 276, 127 CCH LC
33042.
Footnotes
Footnote 11. 7 CFR 15.9(d)(2) (Department of Agriculture); 10 CFR 4.63(b)
(Nuclear Regulatory Commission); 13 CFR 112.12(d)(2) (Small Business
Administration); 14 CFR 379.8(d)(2) (Civil Aeronautics Board); 14 CFR
1250.108(d)(2) (National Aeronautics and Space Administration); 15 CFR 8.12(d)(2)
(Department of Commerce); 22 CFR 141.8(d)(2) (Department of State); 24 CFR
1.9(d)(2) (Department of Housing and Urban Development); 28 CFR 42.109(d)(2)
(Department of Justice); 29 CFR 31.9(d)(2) (Department of Labor); 32 CFR
300.10(e)(2) (Department of Defense); 43 CFR 17.(d)(2) (Department of the Interior);
45 CFR 80.9(d)(2) (Department of Health and Human Services); 45 CFR
611.9(d)(2) (National Science Foundation); 45 CFR 1110.9(d)(2) (National Foundation
on the Arts and the Humanities); 45 CFR 1203.9(d)(2) (ACTION); 49 CFR
21.15(d)(2) (Department of Transportation).
1656 Record of hearing

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Funding agency regulations normally require that a transcript of the oral evidence at the
hearing, as well as documents submitted into evidence, constitute the record on which a
decision may be based. 12
1656 ----Record of hearing [SUPPLEMENT]
Regulations:
Footnotes
Footnote 12. 29 CFR 31.9(d)(2) (Department of Labor); 7 CFR 15.9(d)(2)
(Department of Agriculture); 10 CFR 4.63(b, c) (Nuclear Regulatory Commission); 13
CFR 112.12(d)(2) (Small Business Administration); 14 CFR 379.8(d)(2) (Civil
Aeronautics Board); 14 CFR 1250.108(d)(2) (National Aeronautics and Space
Administration); 15 CFR 8.12(d)(2) (Department of Commerce); 22 CFR
141.8(d)(2) (Department of State); 24 CFR 1.9(d)(2) (Department of Housing and
Urban Development); 28 CFR 42.109(d)(2) (Department of Justice); 32 CFR
300.10(e)(2) (Department of Defense); 43 CFR 17.8(d)(2) (Department of the
Interior); 45 CFR 80.9(d)(2) (Department of Health and Human Services); 45 CFR
611.9(d)(2) (National Science Foundation); 45 CFR 1110.9(d)(2) (National Foundation
on the Arts and the Humanities); 45 CFR 1203.9(d)(2) (ACTION); 49 CFR
21.15(d)(2) (Department of Transportation).
1657 Consolidated hearings

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Where identical or related facts are alleged to constitute noncompliance with Title VI
with regard to two or more programs providing funding from a single department or
agency, or where the same conduct involves programs of more than one funding agency,
the responsible official may provide for consolidated hearings and uniform rules of
procedure that are not inconsistent with regulations. 13
1657 ----Consolidated hearings [SUPPLEMENT]
Regulations:
Footnotes
Footnote 13. 7 CFR 15.9(e) (Department of Agriculture); 10 CFR 4.64 (Nuclear
379.8(e) (Civil Aeronautics Board); 14 CFR 1250.108(e) (National Aeronautics and
Space Administration); 15 CFR 8.12(e) (Department of Commerce); 22 CFR 141.
(Department of State, adding, however, provisions for adopting procedural requirements
of another agency, and transfer of the hearing, in some instances); 24 CFR 1.9(e)
(Department of Housing and Urban Development); 28 CFR 42.109(e) (Department of
Justice); 29 CFR 31.9(e) (Department of Labor); 32 CFR 300.10(f) (Department of
Defense); 43 CFR 17.8(e) (Department of the Interior); 45 CFR 80.9(e) (Department
of Health and Human Services); 45 CFR 611.9(e) (National Science Foundation); 45
CFR 1110.9(e) (National Foundation on the Arts and the Humanities); 45 CFR
1203.9(e) (ACTION); 49 CFR 21.15(e) (Department of Transportation).
(4). Post-Hearing Procedures [1658-1663]
1658 Decisions without hearing

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If a hearing is waived due to the respondent employer's failure to appear, 14 a final
decision will be made on the existing record, and a written copy will be furnished to the
employer. 15
1658 ----Decisions without hearing [SUPPLEMENT]
Regulations:
Footnotes
Footnote 14. 1651.
Space Administration); 15 CFR 8.13(c) (Department of Commerce); 22 CFR
141.9(b) (Department of State); 24 CFR 1.10(c) (Department of Housing and Urban
Developmentcopy to be sent by certified or registered mail, return receipt requested); 28
CFR 42.110(c) (Department of Justice); 29 CFR 31.10(c) (Department of Labor); 32
CFR 300.11(c) (Department of Defense); 43 CFR 17.9(d) (Department of the
Interior); 45 CFR 80.10(c) (Department of Health, and Human Services); 45 CFR
611.10(c) (National Science Foundation); 45 CFR 1110.10(c) (National Foundation on
the Arts and the Humanities); 45 CFR 1203.10(c) (ACTION); 49 CFR 21.17(c)
1659 Recommended and initial decisions

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After a hearing is held on an alleged violation of Title VI, the person conducting the
hearing may be authorized by the applicable regulations to either (1) make a
recommended decision and send the record of the hearing 16 along with it to the agency
head for a final decision (copies of such certification and recommendations must be
mailed to all parties in the proceeding), or (2) make an initial decision to which a
respondent employer may file exceptions within 30 days of notification. In the latter
case, the head of the agency may review the initial decision on his own motion within 45
days of its issuance, and will review any exceptions filed to it. If no exceptions are filed
and the agency head decides not to review the initial decision on his own motion, that
decision constitutes the final decision of the agency. Any reviews of the initial decision
will result in a final determination by the head of the agency, which will include the
reasons for the decision, and which will be mailed promptly to the parties in the
proceeding. 17
1659 ----Recommended and initial decisions [SUPPLEMENT]
Regulations:
Footnotes
Footnote 16. 1656.
Footnote 17. 7 CFR 15.10(a) (Department of Agriculture); 10 CFR 4.71, 4.72(a-d)
(Nuclear Regulatory Commission); 13 CFR 112.13(a) (Small Business
Administration); 14 CFR 379.9(a) (Civil Aeronautics Board); 14 CFR 1250.109(a)
(National Aeronautics and Space Administration); 15 CFR 8.13(a) (Department of
Commerce); 24 CFR 1.10(a) (Department of Housing and Urban Development); 28
CFR 42.110(a) (Department of Justice); 29 CFR 31.10(a) (Department of Labor); 32
CFR 300.11(a) (Department of Defense); 43 CFR 17.9(a, b) (Department of the
Interior, authorizing administrative law judge to make initial decision; and providing for
exceptions to be filed with Director, Office of Hearings and Appeals, who may, in the
absence of exceptions, on his own motion notify the applicant or recipient that he will
review the decision); 45 CFR 80.10(a) (Department of Health and Human Services,
which provides, however, that exceptions to the hearing examiner's initial decision are to
be filed with the reviewing authority within the period provided for in the rules of
procedure issued by the responsible department official, apparently 20 days according to
45 CFR 81.103); 45 CFR 611.10(a) (National Science Foundation); (National
Foundation on the Arts and the Humanities); 45 CFR 1203.10(a) (ACTION); 49 CFR
21.17(a) (Department of Transportation).
Regulations of the Department of State provide that either party may appeal from a
decision of the officer presiding at the hearing to the responsible Department official
within 30 days of the mailing of the officer's decision; in the absence of such an appeal,
the decision of the officer presiding at the hearings constitutes the final decision of the
Department subject to approval by the Secretary if sanctions are imposed. 22 CFR
141.9(d).
Regulations of the Department of Health and Human Services provide that if the
Secretary has not personally made the final decision, a recipient or applicant or the
counsel for the Department may request the Secretary to review a decision of the
reviewing authority in accordance with rules of procedure issued by the responsible
Department official; such review is not a matter of right and is to be granted only where
the Secretary determines there are special and important reasons therefor; the Secretary
may grant or deny such request, in whole or in part, and he may also review such a
decision upon his own motion in accordance with special rules of procedure; in the
absence of such a review, a final decision of the hearing officer or reviewing authority
will become the final decision of the Department; and failure of an applicant or recipient
to file an exception with the reviewing authority or to request review by the Secretary is
not to be deemed a failure to exhaust administrative remedies for the purpose of
obtaining judicial review. 45 CFR 80.10(e).
1660 Required contents of decisions

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Each final decision or potentially final decision 18 must contain a ruling on each
finding, conclusion, or exception presented, and identify the requirement(s) if any, on
which noncompliance has been found. 19
1660 ----Required contents of decisions [SUPPLEMENT]
Regulations:
Footnotes
Footnote 19. 7 CFR 15.10(d) (Department of Agriculture); 10 CFR 4.73 (Nuclear
Regulatory Commission); 13 CFR 112.13(d) (Small Business Administration); 14 CFR
379.9(d) (Civil Aeronautics Board); 14 CFR 1250.109(d) (National Aeronautics and
Space Administration); 15 CFR 8.13(d) (Department of Commerce); 22 CFR
141.9(c) (Department of State); 24 CFR 1.10(d) (Department of Housing and Urban
Development); 28 CFR 42.110(d) (Department of Justice); 29 CFR 31.10(d)
(Department of Labor); 32 CFR 300.11(d) (Department of Defense); 43 CFR 17.9(e)
(Department of the Interior); 45 CFR 80.10(d) (Department of Health and Human
Services); 45 CFR 611.10(d) (National Science Foundation); 45 CFR 1110.10(d)
(National Foundation on the Arts and the Humanities); 45 CFR 1203.10(d) (ACTION);
49 CFR 21.17(d) (Department of Transportation).
1661 Employer's right to file briefs and receive final decision

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Go to Supplement
After a hearing concerning an alleged violation of Title VI, an employer seeking or
receiving federal financial assistance has the right to a reasonable opportunity to file
briefs or other written statements of its contentions, and must be furnished with a written
copy of the final decision. 20
1661 ----Employer's right to file briefs and receive final decision [SUPPLEMENT]
Regulations:
Footnotes
Footnote 20. 7 CFR 15.10(b) (Department of Agriculture); 13 CFR 112.13(b) (Small
Business Administration); 14 CFR 379.9(b) (Civil Aeronautics Board); 14 CFR
1250.109(b) (National Aeronautics and Space Administration); 15 CFR 8.13(b)
(Department of Commerce); 24 CFR 1.10(b) (Department of Housing and Urban
Developmentcopy to be sent by certified or registered mail, return receipt requested); 28
CFR 42.110(b) (Department of Justice); 29 CFR 31.10(b) (Department of Labor); 32
CFR 300.11(b) (Department of Defense); 43 CFR 17.9(c) (Department of the
Interior); 45 CFR 80.10(b) (Department of Health and Human Services; 45 CFR
611.10(b) (National Science Foundation); 45 CFR 1110.10(b) (National Foundation on

the Arts and the Humanities); 45 CFR 1203.10(b) (ACTION); 49 CFR 21.17(b)
1662 Content of final decision

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Go to Supplement
A final decision following a hearing 21 may provide for any sanctions allowed by law,
and may contain any terms, conditions, and other provisions that effectuate the purposes
of Title VI and the implementing regulations. 22
1662 ----Content of final decision [SUPPLEMENT]
Regulations:
Footnotes
Footnote 21. 1660.
Footnote 22. 7 CFR 15.10(f) (Department of Agriculture); 10 CFR 4.74 (Nuclear
379.9(e) (Civil Aeronautics Board); 14 CFR 1250.109(f) (National Aeronautics and
Space Administration); 15 CFR 8.13(f) (Department of Commerce); 22 CFR
141.9(f) (Department of State); 24 CFR 1.10(e) (Department of Housing and Urban
Development); 28 CFR 42.110(f) (Department of Justice); 29 CFR 31.10(e)
(Department of Labor); 32 CFR 300.11(f) (Department of Defense); 43 CFR 17.9(g)
(Department of the Interior); 45 CFR 80.10(f) (Department of Health and Human
Services); 45 CFR 611.10(f) (National Science Foundation); 45 CFR 1110.10(f)
(National Foundation on the Arts and the Humanities); 45 CFR 1203.10(f) (ACTION);
49 CFR 21.17(f) (Department of Transportation).
1663 Restoration of eligibility

View Entire Section
Go to Supplement
An employer that is adversely affected by a final administrative order that refuses to
grant or continue federal financial assistance is entitled to be restored to full eligibility
for such assistance if it subsequently comes into compliance and provides reasonable
assurance that it will fully comply thereafter. 23
A request to be restored to full eligibility may be made at any time to the appropriate
authority and must be supported by information sufficient to demonstrate that the
requirements for restoration of eligibility have been met. If it is determined that those
requirements have been satisfied, eligibility will be restored. 24
If the request
is denied, the employer may request a hearing 25 and specify in writing why it believes
the determining authority is in error. If a final decision is issued after a hearing,
indicating that the employer has proved that it meets the aforementioned requirements, it
will be restored to eligibility at that time. 26
1663 ----Restoration of eligibility [SUPPLEMENT]
Regulations:
Footnotes
Footnote 23. 7 CFR 15.10(g)(1) (Department of Agriculture); 10 CFR 4.75(a)
(Nuclear Regulatory Commission); 13 CFR 112.13(f)(1) (Small Business
Administration); 14 CFR 379.9(f)(1) (Civil Aeronautics Board); 14 CFR
1250.109(g)(1) (National Aeronautics and Space Administration); 15 CFR 8.13(g)(1)
(Department of Commerce); 22 CFR 141.9(g)(1) (Department of State); 24 CFR
1.10(f)(1) (Department of Housing and Urban Development); 28 CFR 42.110(g)(1)
(Department of Justice); 29 CFR 31.10(f)(1) (Department of Labor); 32 CFR
300.11(g)(1) (Department of Defense); 43 CFR 17.9(h)(1) (Department of the
Interior); 45 CFR 80.10(g)(1) (Department of Health and Human Services); 45 CFR
611.10(g)(1) (National Science Foundation); 45 CFR 1110.10(g)(1) (National
Foundation on the Arts and the Humanities); 45 CFR 1203.10(g)(1) (ACTION); 49
CFR 21.17(g)(1) (Department of Transportation).
Footnote 24. 7 CFR 15.10(g)(2) (Department of Agriculture); 10 CFR 4.75(b)
(Nuclear Regulatory Commission); 13 CFR 112.13(f)(2) (Small Business
Administration); 14 CFR 379.9(f)(2) (Civil Aeronautics Board); 14 CFR
1250.109(g)(2) (National Aeronautics and Space Administration); 15 CFR 8.13(g)(2)
(Department of Commerce); 22 CFR 141. (Department of State, adding the
requirement that such determination be in writing and supported by evidence and
findings of fact which are to be retained by the Department); 24 CFR 1.10(f)(2)
(Department of Housing and Urban Development); 28 CFR 42.110(g)(2) (Department
of Justice); 29 CFR 31.10(f)(2) (Department of Labor); 32 CFR 300.11(g)(2)

(Department of Defense); 43 CFR 17.9(h)(2) (Department of the Interior); 45 CFR
80.10(g)(2) (Department of Health and Human Services); 45 CFR 611.10(g)(2)
(National Science Foundation); 45 CFR 1110.10(g)(2) (National Foundation on the
Arts and the Humanities); 45 CFR 1203.10(g)(2) (ACTION); 49 CFR 21.17(g)(2)
Footnote 25. 1649-1657.
Footnote 26. 29 CFR 31.10(f)(3) (Department of Labor). Similar provisions are made
in 7 CFR 15.10(g)(3) (Department of Agriculture); 10 CFR 4.75(c) (Nuclear
Regulatory Commission); 13 CFR 112.13(f)(3) (Small Business Administration); 14
CFR 379.9(f)(3) (Civil Aeronautics Board); 14 CFR 1250.109(g)(3) (National
Aeronautics and Space Administration); 15 CFR 8.13(g)(3) (Department of
Commerce); 22 CFR 141.9(g)(3) (Department of State, which specifies that the burden
of substantiating compliance with the regulation is on the applicant or recipient); 24 CFR
1.10(f)(3) (Department of Housing and Urban Development); 28 CFR 42.110(g)(2)
(Department of Justice); 32 CFR 300.11(g)(3) (Department of Defense); 43 CFR
17.9(h)(3, 4) (Department of the Interior); 45 CFR 80.10(g)(3) (Department of Health
and Human Services); 45 CFR 611.10(g)(3) (National Science Foundation); 45 CFR
1110.10(g)(3) (National Foundation on the Arts and the Humanities); 45 CFR
1203.10(g)(3) (ACTION); 49 CFR 21.17(g)(3) (Department of Transportation).
(5). Voluntary Compliance Efforts [1664-1666]
1664 Voluntary compliance efforts required

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A funding agency may not impose any sanctions against an employer receiving federal
financial assistance for noncompliance with Title VI unless the agency first determines
that compliance cannot be secured by voluntary means. 27 The DOJ requires funding
agencies to attempt to secure voluntary compliance at the outset of every noncompliance
situation and pursue such efforts through each stage of enforcement action. 28 In a
pre-funding situation 29 where an employer applying for federal financial assistance
fails to file an adequate assurance, or apparently breaches the terms of such an assurance,
the funding agency must promptly notify it of the nature of the noncompliance, the
potential consequences of noncompliance, and immediately commence efforts to secure
voluntary compliance. 30
Footnotes
Footnote 28. 28 CFR 50.3 I.C.
Footnote 29. 1639.

Footnote 30. 28 CFR 50.3 I.C.
1665 Extent of required efforts

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After a finding of noncompliance, the DOJ requires the funding agency to attempt to
achieve voluntary compliance for a reasonable period of time. 31 Those regulations
require each agency to establish internal controls for the purpose of avoiding unnecessary
delay in resolving noncompliance. 32
Where negotiations have continued for more than 60 days after a finding of probable
noncompliance, a funding agency must notify the Assistant Attorney General and state
the reasons for the length of the negotiations. 33
Footnotes
1666 Procedure for conciliation

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When voluntary compliance efforts are successful in pursuading an employer receiving
or seeking federal financial assistance to take remedial steps to achieve compliance with
Title VI, conciliation agreements to that effect must:
be set forth in writing by the employer and the funding agency;
specify the action necessary for the correction of any Title VI deficiencies;
be available for public inspection. 34
Footnotes
b. Title IX (Education Program) Proceedings [1667-1670]
1667 Authority to regulate

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Title IX of the Education Amendments of 1972 (Title IX) 35 prohibits, with specified
exceptions, sex discrimination against any person seeking participation in, or the benefits
of, any education program or activity receiving federal financial assistance. To effectuate
this purpose, each federal department and agency empowered to extend federal financial
assistance to any educational program or activity may issue rules, regulations, or orders.
36
The authority of federal departments and agencies to regulate under Title IX is statutorily
limited in that (1) the regulations or orders must be consistent with achieving the
objectives of the statute authorizing the financial assistance, and (2) the rules, etc., do not
become effective until approved by the President. 37
The Attorney General has the same coordination and regulatory responsibilities for the
enforcement of Title IX as he exercises with regard to Title VI. 38
Footnotes
Footnote 38. Ex Or 12250 1-201(b).
As to powers under Title VI, see 1633 et seq.
1668 Regulation permissible absent findings of discrimination

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The Supreme Court has held that a funding agency may take enforcement action against a
covered recipient, even absent any findings of sex discrimination, for failure to comply
with regulations issued pursuant to Title IX. 39
Footnotes
Footnote 39. Grove City College v Bell (1984, US) 79 L Ed 2d 516, 104 S Ct 1211, 52
USLW 4283, 33 CCH EPD 34158.
1669 Voluntary compliance efforts required

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A federal department or agency cannot enforce the requirements of Title IX against any
covered employer unless it first determines that compliance cannot be achieved by
voluntary means. 40
Footnotes
For a discussion of what administrative sanctions are available under Title IX, see
2015 et seq.
1670 Particular funding agencies

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The Departments of Education, 41 Health and Human Services 42 and Agriculture 43
have issued regulations for the enforcement of Title IX that incorporate by reference the
procedures applicable to the enforcement of Title VI. 44
Caution: All of the above regulations were promulgated prior to the Supreme
Court's landmark Grove City decision. 45
Footnotes

Footnote 43. 7 CFR 15a.71.
Footnote 44. For a discussion of the procedures for Title VI proceedings, see 1632 et
seq.
Footnote 45. Grove City College v Bell (1984, US) 79 L Ed 2d 516, 104 S Ct 1211, 52
USLW 4283, 33 CCH EPD 34158, discussed in 1668.
c. Joint Complaint Processing [1671-1697]
(1). In General [1671-1676]

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A joint complaint 46 is defined as a complaint of employment discrimination covered
by (1) Title VII 47 or the Equal Pay Act 48 and also by (2) Title VI of the Civil Rights
Act of 1964, 49 Title IX of the Education Amendments of 1972, 50 or the State and
Local Fiscal Assistance Act of 1972 (Revenue Sharing Act). 51
The regulations for joint complaint processing explicitly exclude from coverage (1) the
Omnibus Crime Control and Safe Streets Act of 1968, (2) the Juvenile Justice and
Delinquency Prevention Act, (3) the Comprehensive Employment Training Act of 1973
(CETA), and (4) Executive Order 11246. 52
Footnotes
Footnote 46. 29 CFR 1691.13(f); 28 CFR 42.613(f).
Footnote 47. 42 USCS 2000e et seq.
Footnote 50. 20 USCS 1681-1683.
Footnote 52. 29 CFR 1691.1; 28 CFR 42.601.

For a discussion of Executive Order 11246 administrative proceedings by the OFCCP,
see 1452 et seq.

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The EEOC has the responsibility to develop procedures to minimize duplicative
investigations of employers subject to federal equal employment opportunity
requirements. The EEOC also has responsibility to ensure that federal departments and
agencies develop their own procedures for enforcement of those statutory and regulatory
requirements. 53
The Department of Justice (DOJ), through the Attorney General, has the responsibility to
coordinate the implementation and enforcement of all federal statutes prohibiting race,
color, national origin, sex, disability, or religious discrimination against persons seeking
participation in or benefits from programs or activities receiving federal financial
assistance. 54
To accomplish these purposes, the DOJ 55 and the EEOC 56 have jointly promulgated
regulations to establish procedures for resolving discrimination complaints against
recipients of federal financial assistance which may fall under the jurisdiction of both the
EEOC and a federal funding agency. 57
The regulations for joint complaints affect those complaints filed with federal fund
granting agencies on and after March 28, 1983. 58
Footnotes
Footnote 53. Ex Or 12067 1-301(d), (e).
Footnote 54. Ex Or 12250 1-201(a)-(d).
Footnote 55. 28 CFR 42.601-42.613.
Footnote 56. 29 CFR 1691 et seq.
Footnote 57. For a discussion of Title VI administrative procedures developed under the
authority of the DOJ, see 1632 et seq. Also discussed elsewhere are ADEA ( 1391
et seq.), Title VII ( 1232 et seq.), and EPA ( 1380 et seq.) proceedings of the EEOC.
Footnote 58. 48 Fed. Reg. 3570 (1/25/83).
1673 Exchange of information required

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The EEOC and federal funding agencies are required to share information relating to the
employment policies and practices of recipients of federal financial assistance that may
assist them in mutually carrying out their responsibilities. 59
Such information includes:
affirmative action programs;
annual employment reports;
complaints;
investigative files;
conciliation or compliance agreements;
compliance review reports and files. 60
Footnotes
Footnote 59. 29 CFR 1691.2; 28 CFR 42.602.
Footnote 60. 29 CFR 1691.2; 28 CFR 42.602.
1674 Confidentiality of information

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When a federal funding agency receives information obtained by the EEOC, that agency
must observe the confidentiality requirements of Title VII, 61 unless the agency
receives the same information from an independent source, or unless the agency has
referred a joint complaint to the EEOC under the joint complaint processing regulations.
62
In either of the latter two situations the agency may use such information in a
subsequent Title VI, Title IX, or Revenue Sharing Act enforcement proceeding.
Questions the federal funding agency may have concerning confidentiality are directed to
the Associate Legal Counsel for Legal Services, Office of Legal Counsel of the EEOC.
63
Footnotes
Footnote 62. 29 CFR 1691.3; 28 CFR 42.603.
See also 1679.
Footnote 63. 29 CFR 1691.3; 28 CFR 42.603.
1675 Standards for evaluating complaints

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Joint complaint procedures require federal funding agencies to consider the EEOC
guidelines on religious, 64 national origin, 65 and sex discrimination, 66 as well as
the Uniform Guidelines on Employee Selection Procedures, 67 in determining whether
a recipient has committed unlawful employment discrimination in any proceeding before
those agencies. 68
Footnotes
Footnote 68. 29 CFR 1691.4; 28 CFR 42.604.
1676 Timeliness considerations

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When a funding agency determines that a complaint could or must be transferred or
referred to the EEOC for processing, 69 the date on which the funding agency received
the complaint is deemed the filing date at the EEOC for purposes of evaluating the
timeliness of the complaint with the EEOC. 70
The timeliness requirements for complaints processed by the EEOC under Title VII 71
and the EPA 72 are discussed elsewhere.
Footnotes
Footnote 70. 29 CFR 1691.5(c), 1691.6(a); 28 CFR 42.605(c), 42.606(a).
(2). Pre-Investigation Procedures [1677-1685]
1677 Employer's notification of complaint

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Within ten days of a funding agency's receipt of a complaint, the employer will be
notified that the funding agency has received a complaint of employment discrimination
that is subject to joint complaint proceedings and of the date, place, and circumstances of
the alleged unlawful employment practice. 73
Footnotes
Footnote 73. 29 CFR 1691.5(a); 28 CFR 42.605(a).
Forms: ComplaintTo administrative agencyDiscrimination in employment. 5A Am
Jur Pl & Pr Forms (Rev), Civil Rights, Forms 81 et seq.
Charge of discrimination (EEOC Form 5 (3-84)) [42 USCS 2000e-5(b),
2000e-5(c), 2000e-5(e); 29 CFR 1601.6-1601.8, 1601.11]. 12 Federal Procedural
Charge of discriminationLetter form [42 USCS 2000e-5(b), 2000e-5(c),
2000e-5(e); 29 CFR 1601.7-1601.9, 1601.12]. 12 Federal Procedural Forms, L Ed,
1678 Determination of jurisdiction

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Within 30 days of receiving a complaint of employment discrimination, the funding
agency must determine whether it has jurisdiction over the complaint under Title VI,
Title IX, or the Revenue Sharing Act, 74 and whether the EEOC has jurisdiction over
the complaint under Title VII or the EPA. 75
Footnotes
Footnote 74. 29 CFR 1691.5(b)(1); 28 CFR 42.605(b)(1).
1679 Guidelines for processing joint complaint

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Job discrimination complaints that are within the jurisdiction of both the EEOC and the
funding agency normally are investigated by the EEOC when only individual
discrimination is alleged. Complaints are investigated by the funding agency where a
pattern or practice of discrimination is alleged, or where additional discriminatory
practices that do not pertain to employment are alleged. 76
Observation: Exceptions to the general rule are made at the legally permissable
discretion of the EEOC and funding agencies.
Footnotes
Footnote 76. 29 CFR 1691.5; 28 CFR 42.605.
1680 Transfer and referral to EEOC

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If a funding agency determines that it does not have jurisdiction over a complaint of
employment discrimination, but that the EEOC may have such jurisdiction, it will
transfer the complaint to the EEOC. 77
If a funding agency determines that a complaint is a joint complaint, 78 the agency may
refer it to the EEOC without prior consultation. 79
Observation: The regulations use the word "transfer" to identify action on

complaints that are or may be only within the jurisdiction of the EEOC, or only within
the jurisdiction of the funding agency. The regulations use the word "referral" to
identify action on joint complaints.
A funding agency must refer all joint complaints 80 to the EEOC if only discrimination
against an individual is alleged. 81
Footnotes
Footnote 77. 29 CFR 1691.5(c); 28 CFR 42.605(c).
Footnote 78. 1671.
Footnote 79. 29 CFR 1691.5(d); 28 CFR 42.605(d).
Footnote 80. 1671.
Footnote 81. 29 CFR 1691.5(e); 28 CFR 42.605(e).
1681 Time limits for transfer or referral to the EEOC

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Whenever a funding agency determines that a complaint could or must be referred or
transferred to the EEOC under joint complaint processing procedures, the action should
take place within 30 days of the funding agency's receipt of the complaint. 82
Footnotes
Footnote 82. 29 CFR 1691.5(c)-(d); 28 CFR 42.605(c)-(d).
1682 Non-referable complaints
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Unless there are special circumstances to warrant referral to the EEOC, a funding agency
will not refer a joint complaint 83 alleging a pattern or practice of employment
discrimination. 84 Before investigating such complaints, the funding agency must
consult with the Chairman of the EEOC and the Assistant Attorney General to assure a
minimal duplication of effort. 85
Similarly, a funding agency will not refer a joint complaint to the EEOC, absent special
circumstances, if the allegations concern not only discrimination in employment, but also
discrimination in other non-employment practices of a funded recipient. However, if the
complaint has already been filed with the EEOC, investigatory activities should be
coordinated. 86 Ordinarily, the EEOC should defer its investigations on such
complaints that have already been filed with it, pending the termination of the funding
agency's investigation. 87
Footnotes
Footnote 83. 1671.
Footnote 84. 29 CFR 1691.5(f); 28 CFR 42.605(f).
Footnote 86. 29 CFR 1691.5(g); 28 CFR 42.605(g).
Footnote 87. 29 CFR 1691.5(g); 28 CFR 42.605(g).
1683 Joint processing by funding agency and EEOC

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If a joint complaint 88 that only alleges employment discrimination against an
individual is referred to the EEOC, the funding agency may also process the referred
complaint if special circumstances justify such action. 89 If the complainant has
already filed a similar charge with the EEOC, the funding agency may investigate if the
EEOC agrees to defer its investigation pending the funding agency's investigation. 90
If the complainant has not already filed a similar charge with the EEOC, and special
circumstances warrant an investigation by the funding agency, the EEOC shall defer its
investigation pending the agency's investigation. 91
Footnotes
Footnote 88. 1671.

Footnote 90. 29 CFR 1691.5(e)(1); 28 CFR 42.605(e)(1).
Footnote 91. 29 CFR 1691.5(e)(2); 28 CFR 42.605(e)(2).
1684 Notification to employer of referral or transfer

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Whenever a complaint is transferred to the EEOC, the funding agency will notify the
employer of the transfer, the reason for it, the location of the EEOC office to which the
complaint was transferred, and the regulatory requirements for evaluating the timeliness
of the complaints with the EEOC. 92
When a joint complaint 93 is referred to the
EEOC, the funding agency provides the employer with not only the above information,
but also (1) the identity of the civil rights provisions involved, (2) the fact that the agency
has delegated its investigatory authority under Title VI, Title IX, or the Revenue Sharing
Act to the EEOC, and (3) the fact that information the EEOC obtains under such
delegated authority may be used in enforcement proceedings concerning the above
statutes. 94
The complainant is given the same notification and information by the funding agency as
is the employer when a complaint is transferred 95 or when a joint complaint is referred
96 to the EEOC.
Footnotes
As to timeliness considerations, see 1676.
Footnote 93. 1671.
Footnote 94. 29 CFR 1691.5(h); 28 CFR 42.605(h).
1685 Notification to the EEOC of funding agency concerns

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When a joint complaint is referred to the EEOC for investigation, the funding agency will
notify the EEOC of the following concerns:
the relevant civil rights provisions applicable to the employment practices of the
employer/recipient;
whether the funding agency wishes to receive advance notice of any conciliation
negotiations;
whether the funding agency wishes the EEOC to seek information concerning the
relationship between the alleged discrimination and the applicable federally assisted
programs or activities;
whether a primary objective of the federal financial assistance is to provide
employment. 97
Footnotes
(3). Investigations [1686-1689]
1686 Scope of the EEOC's investigation

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The EEOC's investigation of a joint complaint will include sufficient information to
allow the funding agency to determine (1) whether the alleged employment
discrimination is in a program or activity that receives federal financial assistance, and
(2) whether the alleged discrimination affects beneficiaries or potential beneficiaries of
the assisted program. 98 Any EEOC investigations of joint complaints alleging a
pattern or practice of discrimination will generally be limited to the allegations that
directly affect the complainant. 99
Footnotes
Footnote 98. 29 CFR 1691.6(b); 28 CFR 42.606(b).
1687 Coordination of information gathering

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If the EEOC is unable to obtain information from an employer through voluntary means
in the course of its investigation of a joint complaint, it shall consult with the funding
agency to determine the appropriate course of action. 1
Footnotes
Footnote 1. 29 CFR 1691.6(d); 28 CFR 42.606(d).
1688 Weight given to funding agency's determination

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In those circumstances where the EEOC has deferred its investigation pending the
investigation by the funding agency, the EEOC will give due weight to the funding
agency's determination concerning the complaint. 2
Footnotes
1689 Negotiated settlements

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If the EEOC is able to obtain a negotiated settlement 3 prior to making a determination
or reaching a conciliation agreement after a determination, it shall notify the funding
agency that the complaint has been settled. The funding agency will take no further
action on the complaint. The agency may, however, take the existence of the complaint
into consideration in scheduling compliance reviews. 4
Footnotes
Footnote 3. 1554.
Footnote 4. 29 CFR 1691.11; 28 CFR 42.611.
(4). EEOC Determinations [1690-1693]
1690 Reasonable cause: notification

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If, after investigating a joint complaint, 5 the EEOC determines that there is reasonable
cause believe that Title VII has been violated, 6 it will notify the parties to the
complaint and the funding agencies of that determination. 7
Footnotes
1691 --Conciliation attempts

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When reasonable cause has been found by the EEOC on a joint complaint, it will attempt
to resolve the complaint by informal means of conference, conciliation and persuasion.
The funding agency will participate in conciliation efforts if the EEOC requests it. Even
if the funding agency does not participate, it will be provided advance notice of any
conciliation attempts by the EEOC. 8
Footnotes
1692 --Enforcement action

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If the EEOC is unsuccessful in conciliating a joint complaint on which reasonable cause
has been found, it will:
issue a notice of failure of conciliation in accordance with Title VII processing
regulations; 9
transmit a copy of that notice, along with its letter of determination and the investigative
file, to the funding agency;
issue a notice of a right to sue under Title VII 10 and determine whether it will bring
suit on its own under Title VII, if the employer is a private entity;
refer the matter to the Attorney General in accordance with Title VII procedures, if the
employer is a governmental entity. 11 In the case of a governmental employer, the
Attorney General or his delegate will determine whether the DOJ will bring suit under
Title VII and issue a notice of a right to sue under that legislation. 12
Before any legal action is initiated against an employer receiving federal financial
assistance, the DOJ or EEOC will notify the appropriate funding agency of the proposed
action and the substance of the allegations. 13
Footnotes
Footnote 11. 29 CFR 1691.9(b)(1)-(4); 28 CFR 42.609(b)(1)-(4).
1693 Dismissal
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If the EEOC determines that the Title VII allegations of a joint complaint should be
dismissed, it will:
notify the complainant and the employer of the reason for the dismissal;
notify the complainant and the employer the effect the dismissal has on the
complainant's rights under the relevant civil rights provisions of the funding agency;
issue a notice of a right to sue under Title VII;
transmit a copy of its investigation file to the funding agency. 14
Footnotes
Footnote 14. 29 CFR 1691.7; 28 CFR 42.607.
(5). Funding Agency Determinations [1694-1697]
1694 Action on EEOC's dismissal

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Within 30 days of receiving the EEOC's transmittal of the dismissal of a joint complaint,
15 a funding agency must determine what action it intends to take with respect to that
complaint, and notify the complainant and the employer. In making that determination,
weight must be given to the EEOC's determination that the Title VII allegation should be
dismissed. If the funding agency decides to take further action, it must notify the
Assistant Attorney General and the Chairman of the EEOC, in writing, as to what it plans
to do and the basis for such action. 16
Footnotes
Footnote 15. 1671.
Footnote 16. 29 CFR 1691.8; 28 CFR 42.608.
1695 Action on EEOC's reasonable cause finding

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When the EEOC has found reasonable cause of a Title VII violation and failed to
conciliate the matter, the funding agency must give due weight to that determination and
decide within 30 days whether a civil rights provision that the funding agency has a
responsbility to enforce has been violated. 17
Footnotes
1696 Effect of not finding violation

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Whenever a funding agency determines that the employer has not violated civil rights
provisions it enforces, it must notify the complainant, the employer, the Assistant
Attorney General, and the Chairman of the EEOC, in writing, as to the basis of that
determination. 18
Footnotes
1697 Effect of finding violation

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When a funding agency finds that a civil rights provision it enforces has been violated, it
will notify the complainant and the employer, and will determine whether further efforts
to obtain voluntary compliance are warranted. In reaching that determination, it must
give weight to any failure of the EEOC to resolve the complaint by informal methods. 19
If the funding agency determines that further efforts to conciliate are not warranted, or if
further efforts in that respect fail, the agency must initiate appropriate enforcement
proceedings under its own regulations. 20
Before a funding agency initiates any formal administrative enforcement procedures it
must, to the extent it is practical to do so, consult with the Chairman of the EEOC and the
Assistant Attorney General, in an attempt to minimize duplication of effort. 21
Footnotes
d. Rehabilitation Act Proceedings [1698-1703]

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The Rehabilitation Act prohibits discrimination against otherwise qualified individuals
with disabilities seeking participation in, or the benefit of, any program or activity
receiving federal financial assistance. 22 To achieve this purpose, the head of each
agency may promulgate any necessary regulations, which become effective 30 days after
they are submitted to appropriate authorizing committees of the Congress. 23
Any program or activity conducted by an Executive agency or by the United States Postal
Service is also covered by this legislation. 24
The Attorney General has the same coordination and regulatory responsibilities for the
enforcement of the Rehabilitation Act as he exercises with regard to Title VI. 25
Footnotes
Footnote 25. Ex Or 12250 1-201(c).
For a discussion of what types of conduct constitute unlawful discrimination against
employees with disabilities, see 173 et seq.; for a discussion of who is covered by the
Rehabilitation Act, see 39 et seq.
1699 Procedure for issuing regulations

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The Department of Justice (DOJ) requires each federal funding agency to submit
proposed enforcement regulations concerning the Rehabilitation Act to the Assistant
Attorney General, Civil Rights Division, for his review, at least 45 days prior to their
issuance. 26
The DOJ also requires a funding agency to include uniform definitions and standards for
determining who is a disabled person, and prohibitions against discrimination with regard
to the employment of such persons, in each agency's enforcement regulations. 27
Where appropriate, specific provisions adapted to the particular programs and activities
receiving financial assistance from the funding agency may also be included in that
agency's Rehabilitation Act regulations. 28
Footnotes
1700 Enforcement requirements

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The DOJ requires each funding agency to establish a system for the enforcement of the
Rehabilitation Act, which must include:
enforcement and hearing procedures adapted for the enforcement of Title VI; 29
a provision requiring recipients of federal funding to sign assurances of compliance; 30
a requirement that recipients notify employees and beneficiaries of their rights under the
Rehabilitation Act; 31
a requirement that employers receiving federal funding conduct a self-evaluation of
their compliance with the Rehabilitation Act, which includes the participation of
interested persons, persons with disabilities, and organizations representing persons with
disabilities; 32
a requirement that employers receiving federal financial assistance consult with persons
with disabilities, or organizations representing persons with disabilities, in an effort to
achieve compliance with the Act. 33
Footnotes
Footnote 29. 28 CFR 41.5(a)(1).
Footnote 30. 28 CFR 41.5(a)(2).
Footnote 31. 28 CFR 41.5(b)(1).
Footnote 32. 28 CFR 41.5(b)(2).
Footnote 33. 28 CFR 41.5(b)(3).
1701 Interagency cooperation

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Whenever a substantial number of employers are receiving funding for similar or related
purposes from two or more funding agencies, or whenever two or more such agencies
cooperate in administering funding for a particular class of employer/recipients, the
agencies must coordinate compliance with the Rehabilitation Act by designating one as
the primary agency responsible for securing such compliance. 34 Agencies may jointly
conduct compliance reviews or investigations, and must notify other affected agencies
when they discover that such agency's jurisdiction may be invoked. 35
Observation: The EEOC and the Department of Justice have issued a proposed joint
rule to coordinate the processing of discrimination complaints that are covered by both
Title II of the ADA, which prohibits discrimination by state and local governments in
employment and other aspects of their programs and activities, and Title I of the ADA
or 504 of the Rehabilitation Act, which prohibits discrimination on the basis of
disability in programs and activities receiving federal financial assistance. The
proposed rule describes procedures for processing both single complaints filed with
either EEOC or an agency covered by 504, as well as dual-filed complaints which
have been separately filed with both agencies. It also offers two different options for
investigative standards to be used by a 504 agency in its complaint investigations,
and sets out information sharing and confidentiality standards. 36
Footnotes

Footnote 36. Prop 28 CFR Part 37, Prop 29 CFR Part 1640, 57 Fed Reg 14630, 4/21/92.
1702 Relationship to Title VI processing procedures

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Any person aggrieved by an act or omission of a recipient of federal financial assistance
(or a federal provider of such assistance) has available to him the procedures established
for the enforcement of Title VI. 37
Even though the rights and procedures of Title VI apply to federal funding covered by
the Rehabilitation Act, there are two major limitations in Title VI that do not appear in
the Rehabilitation Act. First, Title VI is limited to situations in which federal funding is
involved, while the Rehabilitation Act also covers any program operated by an Executive
agency. 38 Second, Title VI is limited in its application to programs whose primary
objective is to provide employment, 39 while the Rehabilitation Act contains no such
limitation. 40
Footnotes
As to Title VI procedures, see 1632 et seq.; For a discussion of the availability of
administrative sanctions under this provision of the Rehabilitation Act, see 2015 et
seq.
Footnote 38. 1698.
Footnote 39. 1632.
Footnote 40. Consolidated Rail Corp. v Darrone (1984, US) 79 L Ed 2d 568, 104 S Ct
1248, 52 USLW 4301, 34 BNA FEP Cas 79, 33 CCH EPD 34157.
1703 Listing of federal agencies' enforcement regulations

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The following departments and agencies have issued procedural regulations dealing with
the enforcement of the Rehabilitation Act's provision concerning federal financial

assistance: ACTION, 41 the Agency for International Development, 42 the Civil
Aeronautics Board, 43 the Department of Agriculture, 44 the Department of
Commerce, 45 the Department of Defense, 46 the Department of Education, 47 the
Department of Energy, 48 the Department of Health and Human Services, 49 the
Department of Housing and Urban Development, 50 the Department of the Interior, 51
the Department of Justice, 52 the Department of Labor, 53 the Department of State, 54
the Department of Transporation, 55 the Employment and Training Administration, 56
the General Services Administration, 57 the Legal Services Corporation, 58 the
National Aeronautics and Space Administration, 59 the National Endowment for the
Humanities, 60 the National Foundation on the Arts and Humanities, 61 the National
Science Foundation, 62 the Nuclear Regulatory Commission, 63 the Office of Revenue
Sharing, 64 the Office of Personnel Management, 65 the Regional Action Planning
Commissions, 66 the Small Business Administration, 67 the Tennessee Valley
Authority, 68 and the Veterans Administration. 69
Footnotes
Footnote 44. 7 CFR Part 15b.
Footnote 45. 15 CFR 8b.
Footnote 52. 28 CFR Part 42, subpart G.
Observation: The Department of Labor has issued proposed regulations (29 CFR
Part 33) concerning the enforcement of 504 of the Rehabilitation Act. The
regulations would apply to the programs and activities conducted by the Department
itself, directly or through agents, as opposed to those programs and activities to which
the Department only provides financial assistance. 50 Fed. Reg. 27298, 7/2/85.

Footnote 57. 41 CFR Parts 101-108.
Footnote 64. 31 CFR Part 51, subpart E.
Footnote 65. 5 CFR 900.701-900.710.
Footnote 66. 13 CFR 540.302(b).
Footnote 69. 38 CFR Part 18, subpart D.
e. Registered Apprenticeship Program Processing [1704-1720]
(1). In General [1704, 1705]

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The Secretary of Labor has been directed to formulate and promote the furtherance of
labor standards necessary to safeguard the welfare of apprentices, and is further
authorized to encourage inclusion of those standards in contracts of apprenticeship. 70
To promote equality of opportunity in apprenticeship programs, Department of Labor
(DOL) regulations prohibit discrimination based on race, color, religion, national origin,
or sex with regard to the selection, training, and conditions of employment of
apprentices. 71
Primary enforcement responsibilities for the stututory duties given to the Secretary of
Labor, including the discrimination prohibitions, have been delegated by the Department
of Labor (DOL) to the Assistant Secretary of Labor for Employment and Training. 72
State aspects: DOL may recognize a state apprenticeship agency or council, thereby
vesting that body with the authority to determine whether an apprenticeship program
applicant is eligible for registration. 73
Footnotes
For a discussion of what conduct violates federal and state antidiscrimination laws
concerning the training of employees, see 892 et seq.
State programs and their processing procedures are discussed in the Employment
Coordinator at EP-33,400 et seq. A discussion of the DOL procedures for recognizing
a state apprenticeship program are discussed in the Employment Coordinator at
EP-35,050 et seq.
1705 Responsibilities of sponsor

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A sponsor is any person or organization operating an apprenticeship program, regardless
of whether that person is an employer. 74
It is the responsibility of a sponsor to ensure that all apprenticeship programs operate
without the prohibited forms of discrimination and that appropriate affirmative action is
taken, including implementation of the specific affirmative action plans required by the
DOL's regulations. 75
Each sponsor of a registered apprenticeship program must also keep adequate records, as
required under DOL regulations. 76
Footnotes
(2). Compliance Reviews [1706, 1707]

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A compliance review consists of a comprehensive analysis and evaluation of each aspect
of the apprenticeship program, including on-site investigations and audits. 77
The DOL will conduct systematic compliance reviews of apprenticeship programs in
order to determine the extent to which sponsors 78 are complying with the regulations.
79 Compliance reviews are also required when sponsors seek to register new
apprenticeship programs 80 and when an apprenticeship program has been deregistered
and seeks to be reinstated. 81
Compliance reviews will also be conducted when complaints are filed 82 and are not
referred to a designated review body for processing. 83
Footnotes
Footnote 78. 1705.
Footnote 82. 1708.
Footnote 83. 1712.
1707 Findings of noncompliance

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Whenever a DOL compliance review indicates that a sponsor 84 is not operating an
apprenticeship program in accordance with the regulations, the DOL will notify the
sponsor in writing of the results of the review and make a reasonable effort to secure
voluntary compliance within a reasonable time, prior to undertaking sanctions. 85
When sponsors are seeking registration of a new apprenticeship program, the DOL will
provide appropriate recommendations in order to enable the program to achieve
compliance with the regulations. 86
Footnotes
Footnote 84. 1705.
(3). Complaints [1708-1716]
1708 Filing
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Any apprentice or applicant for apprenticeship, or his authorized representative, may file
a complaint if he believes that prohibited discrimination has occurred with regard to any
aspect of the apprenticeship program. 87
Complaints may be filed with the DOL or, at the complainant's option, with a review
body 88 established for the purpose of processing such complaints. 89
Footnotes
Footnote 87. 29 CFR 30.11(a)(1).
Footnote 88. 1711.
Footnote 89. 29 CFR 30.11(a)(1).
1709 Required contents

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Each complaint must be in writing, signed by the complainant, and must include the
name, address, and telephone number of the complainant, the program sponsor involved,
90 and a brief description of the circumstances alleged to be in violation of the equal
opportunity requirements of the regulations. 91
Footnotes
Footnote 90. 1705.
Footnote 91. 29 CFR 30.11(a)(1).

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A complaint filed with the Department of Labor must be submitted within 180 days from
the date of the alleged discrimination. 92 If it is filed with a review body established for
processing such complaints, 93 the complaint must be filed with the DOL within 180
days from the date of the alleged discrimination, or 30 days from the final decision of the
review body, whichever is later. 94
In either case, the time limit may be extended by the DOL for good cause. 95
Footnotes
Footnote 92. 29 CFR 30.11(a)(2).
Footnote 93. 1711.
Footnote 94. 29 CFR 30.11(a)(2).
Footnote 95. 29 CFR 30.11(a)(2).
1711 Review body; definition

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Sponsors of apprenticeship programs 96 are encouraged to establish private review
bodies to consider discrimination complaints in a fair, speedy, and effective procedure.
Private review bodies consist of three or more responsible persons from the community,
serving without compensation, who are not directly associated with the administration of
the apprenticeship program. 97
Sponsors may join in establishing a review body to serve the needs of various
apprenticeship programs within the community. 98
Footnotes
Footnote 96. 1705.
Footnote 97. 29 CFR 30.11(a)(3).
Footnote 98. 29 CFR 30.11(a)(3).
1712 Processing by review bodies

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A complaint will be processed by a private review body 99 when the complainant has
indicated that option on his complaint, 1 unless the DOL has determined that the review
body will not effectively enforce the equal opportunity requirements of the regulations. 2
Within 30 days of referring a complaint to a review body, the DOL will obtain reports
from the complainant and that body as to the disposition of the complaint. If the
complaint has been satisfactorily adjusted, and there is no other indication of a failure to
follow the equal opportunity requirements, a case will be closed and the parties
appropriately informed. 3 If there is evidence that the equal opportunity practices of the
apprenticeship program are not in compliance with the regulations despite an adjustment
of the specific complaint, or when a complaint has not been resolved by the review body
within 90 days, the DOL may conduct a compliance review and take all necessary steps
to resolve the complaint. 4
Footnotes
Footnote 99. 1711.
Footnote 1. 1708.
Footnote 2. 29 CFR 30.11(b)(1)(i).
Footnote 3. 29 CFR 30.11(b)(1)(ii).
1713 Processing by DOL

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Where a review body 5 has not been established to process complaints, the Department
of Labor (DOL) will conduct any compliance reviews 6 it finds necessary in order to
determine the facts of the complaint. The DOL may obtain other information relating to
compliance with the regulations as the circumstances require. 7
When there is a review body, there are also circumstances under which the DOL will
process a complaint. 8
Footnotes
Footnote 5. 1711.
Footnote 6. 1706.
Footnote 7. 29 CFR 30.11(b)(2).
Footnote 8. 1712.
1714 Notice of complaint procedures required

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Sponsors 9 of apprenticeship programs are required to provide written notice of
complaint processing procedures to all apprentices and applicants for apprenticeship. 10
Footnotes
Footnote 9. 1705.
Footnote 10. 29 CFR 30.11(b)(3).
1715 Confidentiality of complaints

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The identity of a complainant must be kept confidential, except when necessary to carry
out the purposes of the regulations. 11
Footnotes
1716 Retaliation prohibited

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Any intimidation, threat, or retaliation, with the approval of a sponsor 12 against any
person because he has filed a complaint, testified, or participated in any investigation or
hearing under the regulations will be considered noncompliance with the regulations. 13
1716 ----Retaliation prohibited [SUPPLEMENT]
Case authorities:
Filing with EEOC of charge not covered by Title VII will not suffice to support action for
retaliation against employer who thereafter discriminates against employee for having
filed non-covered claim. Balazs v Liebenthal (1994, CA4 Va) 32 F3d 151, 65 BNA FEP
Cas 993.
Footnotes
Footnote 12. 1705.
As to what conduct constitutes retaliation, see 247 et seq.

(4). Hearings [1717, 1718]
1717 Hearing officer; notice required

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Within ten days after receiving a request for a hearing concerning alleged violations of
the discrimination prohibitions, the Secretary of Labor will designate a hearing officer,
who will regulate the course of the hearing. 14
The hearing officer must give reasonable notice of the hearing, by certified mail, return
receipt requested, to the appropriate sponsor 15 and the state apprenticeship council if
appropriate. 16
The notice must include (1) a reasonable time and place of hearing, (2) a statement of the
provisions of the regulations that pertain to hearings, and (3) a concise statement of the
matters that form the basis of the hearing, and of the action proposed to be taken. 17
Footnotes
Footnote 14. 29 CFR 30.16(a), (b).
Footnote 15. 1705.
1718 Conduct of hearings; right to counsel

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Hearings are conducted informally, and each party has the right to present his case and to
cross-examine any witnesses as appropriate. 18
Every party participating in a hearing has the right to be represented by counsel. 19
Footnotes
(5). Post-Hearing Procedures [1719, 1720]
1719 Recommended decisions

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Hearing officers make proposed findings and recommended decisions to the Secretary of
Labor, based on the record of the hearing. 20
Footnotes
For a discussion of what sanctions may be imposed, and the procedure for imposing
them, see 2015 et seq.
1720 Procedure for reinstatement

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An apprenticeship program that has been deregistered by the DOL may be reinstated
upon presentation of adequate evidence to the Secretary of Labor that the program is
operating in accordance with the DOL's regulations. 21
Footnotes
For a discussion of the sanction of deregistration, see 2015 et seq.
8. Federal Employment Proceedings [1721-1796]
a. In General [1721, 1722]
1721 Administrative authority

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Major federal job discrimination laws applicable to employees of the federal government
are administered internally by the employer agencies themselves, but give aggrieved
employees the right to appeal to the EEOC, the Merit Systems Protection Board (MSPB),
or the federal district courts.
The EEOC has issued two sets of regulations instructing federal agencies how to process
federal employees' complaints. Agencies will follow the first set of procedures 22 for
complaints filed before October 1, 1992. For complaints filed on or after October 1,
1992, agencies will follow the subsequently issued regulations. 23 These later-issued
regulations make some changes in how claims are processed. However, when no explicit
distinction is made in the text below, the rules are the same and the pertinent regulations,
both old and new, are cited.
Covered federal agencies are required to establish procedures for processing
discrimination complaints. 24
An employee's written allegation of discrimination
made in connection with an action that would otherwise be processed under another
grievance system of the agency must be processed under the equal employment
opportunity regulations. 25
Reorganization Plan No. 1 of 1978 transferred to the EEOC watchdog functions for
federal employment, 26 but authorized the EEOC to delegate to the MSPB the function
of making preliminary discrimination determinations as part of personnel actions brought
on other grounds. 27 This enforcement scheme was subsequently ratified by Congress.
28
Under both sets of regulations, employees or job applicants may vindicate rights by
complaining at the federal agency level 29 and then appealing to the EEO 30 or
filing suit. 31 However, if an agency complaint is filed, the filing of a civil action
involving that complaint in federal court will terminate the processing of the complaint
by the agency. 32
Practice guide: A complainant may not pursue both administrative and judicial
remedies at the same time. 33
With respect to employment in the Library of Congress, authority granted to the EEOC is
exercised by the Librarian of Congress. 34 In addition, the Administrative Office of the
United States Courts must issue regulations providing procedures for resolving
complaints by employees and applicants alleging prohibited discrimination. 35
If a complaint in a federal agency involves an adverse agency action that is appealable to

the MSPB, and the employee or applicant alleges prohibited discrimination as a basis for
the actioncalled a "mixed" casethe individual may immediately appeal the matter to the
MSPB, or file a formal discrimination complaint with the agency 36 and then appeal the
agency's decision on the complaint to the MSPB 37 or file suit. The MSPB's decision
may also be appealed to the EEOC. 38
1721 ----Administrative authority [SUPPLEMENT]
Regulations:
Footnotes
Footnote 24. 29 CFR 1613.201(a), 1613.501(a), 1613.701(a), 1614.104.
Examples of agency regulations implementing this requirement are 12 CFR Part 268
(Federal Reserve System); 24 CFR Part 7 (Housing and Urban Development); and 28
CFR Part 42 (Department of Justice).
Footnote 25. 29 CFR 1613.219, 1614.301.
Footnote 26. 43 Fed. Reg. 19807, 3(a).
Footnote 27. 43 Fed. Reg. 19807, 3(b).
Footnote 29. 1725 (individual complaints), 1761 (class complaints),
1779 (reprisal complaints),.
Footnote 32. 29 CFR 1613.283, 1613.513, 1613.604(i), 1613.643, 1614.401,
1614.408, 1614.409, 1614.410.
Footnote 33. Rochon v FBI (1988, DC Dist Col) 691 F Supp 1548, 47 BNA FEP Cas
872, 47 CCH EPD 38206.
Footnote 34. 29 USCS 633a(b), 42 USCS 2000e-16(b).
Footnote 36. 1725.

Footnote 37. 1784.
Footnote 38. 1790.
1722 Applicability of EEOC regulations governing federal employee complaints

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EEOC regulations governing the processing of federal employee complaints apply to
discrimination against employees or applicants on the basis of race, color, religion, sex,
national, origin, 39 age, 40 and disability, 41 including class complaints. 42
1722 ----Applicability of EEOC regulations governing federal employee
complaints [SUPPLEMENT]
Regulations:
Case authorities:
Federal employees who make "pure" discrimination complaints are required by Civil
Service Reform Act (5 USCS 7121(d)) to make binding choice between pursuing
matter under statutory procedure or negotiated procedure; if employee chooses negotiated
procedure, he must appeal arbitrator's decision to EEOC before filing suit in district court
under 42 USCS 2000e-16. Johnson v Peterson (1993, App DC) 996 F2d 397, 62 BNA
FEP Cas 232.
Footnotes
Footnote 39. 29 CFR 1613.212(a), 1614.105(a).
Footnote 40. 29 CFR 1613.212(a), 1613.512, 1614.105(a).
Footnote 41. 29 CFR 1613.212(a), 1613.709(a), 1614.105(a).
Footnote 42. 29 CFR 1613.601(c), 1614.204(a)(1).
b. Agency Processing of Individual Complaints [1723-1746]
(1). In General [1723-1730]
1723 Pre-complaint processing period

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Federal employees or job applicants who believe that they have been discriminated
against must consult with the employer agency's EEO counselor 43 within 45 calendar
days (30 days under regulations effective before October 1, 1992) of (1) the date of the
event giving rise to the allegation of discrimination, (2) the effective date of an alleged
discriminatory personnel action, or (3) the date that the aggrieved person knew or
reasonably should have known of the event or action. 44
This consulting procedure
applies under the Rehabilitation Act, as well as Title VII, because the procedures and
remedies governing implementation of Title VII and the Rehabilitation Act are identical.
45
EEO counselors must advise individuals of their right to request a hearing after the
agency's investigation, of the election-of-remedies requirement, and of the possible
application of the negotiated grievance procedure to their complaints, among other rights.
46 Under regulations effective before October 1, 1992, a counselor could notify the
individual either at the initial consultation or as soon after the consultation as possible. 47
Under regulations effective October 1, 1992, the information must be provided at the
initial consultation. 48
Effective October 1, 1992, unless an agency and complainant have agreed to extend the
counseling period for up to an additional 60 days, 49 or the agency has an established
dispute resolution procedure, the counselor and the complainant must have their final
interview within 30 days of the matter being brought to the counselor's attention. If the
matter has not been resolved, the counselor must inform the complainant in writing,
within 30 days of the initial contact, of the right to file a discrimination complaint.
Specifically, the notice must inform the complainant that the complaint must be filed
with the appropriate official within 15 days of receipt of the notice, and that the
complainant must inform the agency immediately upon retention of counsel or other
representative. 50
Before October 1, 1992, the counselor's final interview with the complainant had to be
conducted within 21 calendar days after the matter was called to the counselor's attention,
when practicable, and the complainant had to be informed of the above-specified
complaint processing rights if the matter had not been resolved to the complainant's
satisfaction within that time period. 51
Under both sets of regulations, until an agency accepts a discrimination complaint from
an aggrieved person, the counselor may not reveal the person's identity, except when
authorized to do so by the person. 52
Observation: Under some circumstances, the time limit for consulting with an EEO
counselor may be extended. 53
1723 ----Pre-complaint processing period [SUPPLEMENT]
Regulations:
Footnotes
Footnote 43. 29 CFR 1614.105(a).
Footnote 44. 29 CFR 1613.213(a)(1)(i), 1614.105(a)(1).
Annotation: When will Federal Government employee be excused from 30-day
limitation period, established by Equal Employment Opportunity Commission
regulation (29 CFR 1613.214(a)(l)(i)), for bringing matters relating to employment
discrimination to attention of Equal Employment Opportunity Counselor, 57 ALR Fed
116.
Footnote 45. Johnson v Bowen (1988, ND Ill) 1988 US Dist LEXIS 941, affd (CA7) 945
Footnote 46. 29 CFR 1613.213(b); 1614.105(b).
Footnote 47. 29 CFR 1613.213(b).
Footnote 48. 29 CFR 1614.105(b).
Footnote 49. 1731.
Footnote 50. 29 CFR 1614.105(d).
Footnote 51. 29 CFR 1613.213(a).
Footnote 52. 29 CFR 1613.213(a), 1614.105(g).
Footnote 53. 1731.
1724 Right to representation

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At any stage in the presentation of a discrimination complaint, including the
pre-complaint conference stage, federal employees or job applicants have a right to be
accompanied, represented, and advised by a representative of their own choosing. 54 A
counselor may not serve as a representative for either party. 55
1724 ----Right to representation [SUPPLEMENT]
Regulations:
Footnotes
Footnote 54. 29 CFR 1613.214(b)(1), (3), 1614.605(a).
Footnote 55. 52 Fed Reg 41920, 10/30/87.
1725 Filing a complaint

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Effective October 1, 1992, discrimination complaints must be filed with the agency that
allegedly discriminated against the complainant, 56 within 15 days after the
complainant receives notice required at the conclusion of the pre-complaint processing
period. 57 The agency must acknowledge receipt of a complaint in writing and inform
the complainant of the date on which it was filed. It must also tell the complainant of the
right to appeal the final decision or dismissal of all or a portion of the complaint, and of
the agency's duty to conduct a complete and fair investigation of the complaint within
180 days of the filing unless the parties agree in writing to extend the period. 58
Before October 1, 1992, aggrieved federal employees or job applicants who believe they
have been discriminated against could file a complaint. 59
A complaint could also be
filed by an organization for the complainant with the complainant's consent. 60
Observation: The regulations which took effect on October 1, 1992 do not expressly
permit the filing of a discrimination complaint by an organization with the
complainant's consent.
Complaints must be submitted in writing within 15 calendar days of the date of the final
interview with the EEO counselor and must be signed by the complainant. 61 To allege
a continuing violation of Title VII, 62 the complainant need only show that one of the
related discriminatory acts occurred within the 15-day time period immediately preceding
the filing of the formal complaint of discrimination. 63 The regulations also specify to
whom and by what means a complaint is to be delivered, and when the complaint is
considered to have been filed. 64
Observation: Under some circumstances, the time limit for filing a complaint may
be extended. 65
1725 ----Filing a complaint [SUPPLEMENT]
Regulations:
Footnotes
Footnote 56. 29 CFR 1614.106(a).
Footnote 57. 29 CFR 1614.106(b).
Footnote 58. 29 CFR 1614.106(d).
Footnote 59. 29 CFR 1613.212(a), 1613.512, 1613.709(a).
Footnote 60. 29 CFR 1613.212(a), 1613.512.
Footnote 61. 29 CFR 1613.214(a)(1)(ii).
Footnote 63. McDowell v Cheney (1989, MD Ga) 718 F Supp 1531, 50 BNA FEP Cas
791, 52 CCH EPD 39511.
Footnote 64. 29 CFR 1613.214(a)(1)-(3).
Footnote 65. 1731.
1726 Required contents of complaint

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Effective October 1, 1992, a discrimination complaint filed by a federal employee or job
applicant must contain a signed statement from the aggrieved person or the person's
attorney. Also, the complaint must be sufficiently precise to identify the aggrieved
individual and the agency that allegedly discriminated against that individual and
describe generally the actions or practices that form the basis of the complaint. The
complaint must also contain a telephone number and address where the complainant or
the complainant's representative can be contacted. 66
In filing a discrimination complaint, federal employees or job applicants need not follow
formal rules of pleading or make their allegations with legal precision. 67 The
complaint need only provide the agency with a general notice of the matter to be
investigated, 68 including a description of the facts and legal theory sufficiently clear to
notify the agency that employment discrimination is claimed. 69 A complaint of age
discrimination should, for example, allege that the complainant was at least 40 years old
at the time of the action complained of. 70
Complainants who do not comply with a request by an agency to make their complaint
more specific, may have a subsequent judicial action dismissed for failure to exhaust
administrative remedies. 71
Observation: These rulings were based on the EEOC's regulations that were in effect
before October 1, 1992 (29 CFR Part 1613). Nevertheless, they are consistent with the
requirement in 29 CFR 1614.106(c) that the complaint describe generally the actions
or practices that form the basis for the complaint, so that the agency has adequate
notice of the alleged discrimination.
1726 ----Required contents of complaint [SUPPLEMENT]
Regulations:
Footnotes
Footnote 66. 29 CFR 1614.106(c).
Footnote 67. Cooper v Bell (1980, CA9) 628 F2d 1208, 24 BNA FEP Cas 855, 24 CCH
EPD 31215.
Footnote 68. Beasley v Griffin (1977, DC Mass) 427 F Supp 801, 17 BNA FEP Cas
1472, 14 CCH EPD 7560.
EPD 31215.
Footnote 70. 29 CFR 1613.512.
Footnote 71. Johnson v Bergland (1980, CA5) 614 F2d 415, 22 BNA FEP Cas 597, 22
CCH EPD 30774.
1727 Time off to present complaint

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A complainant employee is entitled to a reasonable amount of official time to prepare a
complaint if he is otherwise on duty. If the complainant employee designates another
agency employee as a representative, the representative is also entitled to a reasonable
amount of official time to present the complaint if he is otherwise on duty. 72
1727 ----Time off to present complaint [SUPPLEMENT]
Regulations:
Footnotes
Footnote 72. 29 CFR 1613.214(b)(2), 1614.605(b).
1728 Acknowledgment of complaint

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Effective October 1, 1992, an agency must acknowledge receipt of a complaint in writing
and inform the complainant of the date on which the complaint was filed. The
acknowledgement must also advise the complainant that: (1) the complainant has the
right to appeal the final decision or dismissal of all or a portion of the complaint; and (2)
the agency must conduct a complete and fair investigation of the complaint within 180
days of its filing unless the parties agree in writing to extend the period. 73 Before
October 1, 1992, complainants or their representatives were to be sent a written
acknowledgment by the employer agency that it had received the complaint.
Complainants were also entitled to written notification of their administrative rights and
of their right to file a civil action, including the time limits for exercising those rights. 74
Observation: The appeal of a dismissal of all or a portion of the complaint is

administrative only and cannot be made to a federal district court. 75
1728 ----Acknowledgment of complaint [SUPPLEMENT]
Regulations:
Footnotes
Footnote 73. 29 CFR 1614.106(d).
Footnote 74. 29 CFR 1613.214(a)(3).
Footnote 75. 1729.
1729 Rejection or cancellation of complaint

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Effective October 1, 1992, a federal agency must dismiss all or a portion of a
discrimination complaint filed against it when the complaint:
(1) does not state a claim or states the same claim that is pending before or has been
decided by the agency or the EEOC; 76
(2) does not comply with the 45-day consultation period or time limitations for complaint
filing; 77
(3) is the basis of a pending civil action in federal district court in which the complainant
is a party, and at least 180 days have passed since the complaint was filed, or was the
basis for a complaint decided by the court in which the complainant was a party; 78
(4) concerns a matter that was raised in a negotiated grievance procedure or in an appeal
to the MSPB in which the complainant indicates an election to pursue the non-EEO
process; 79
(5) is moot or alleges that the agency is preparing to take a discriminatory personnel
action. 80
A complaint filed before October 1, 1992, must be rejected or canceled by the agency in
whole or in part when it states the same claim that is pending before, or has already been
decided by, the agency, 81 or when the complaint is the basis for a pending civil action
in which the complainant is a party. 82
Complaints are not identical when they involve consecutive rejections for an opening in
the same position, because a different set of applicants with potentially different
qualifications competes for the positions on each occasion. 83 Also, an employee's
unsuccessful attempt to intervene in a pending civil action brought by another party was
not a proper ground for canceling the employee's complaint. 84
Effective October 1, 1992, the agency must also dismiss a claim in whole or in part:
(1) when the complainant cannot be located, after reasonable efforts to do so, and the
complainant has not responded within 15 days to a notice of proposed dismissal sent to
the complainant's last known address; 85
(2) the complainant has not responded to the agency's written request to provide relevant
information or otherwise proceed with the complaint within 15 days of its receipt, or the
complainant's response does not address the agency's request. However, the complaint
may be adjudicated rather than dismissed if sufficient information is available; 86
(3) when, prior to the issuance of the required notification of the completion of the
agency's investigation, the complainant refuses, within 30 days of receipt of an offer of
settlement, to accept an agency offer of full relief, certified to by the agency's EEO
director or designee, and which informs the complainant that failure to accept will result
in a dismissal. 87
An agency's decision to dismiss a complaint as untimely cannot be appealed to federal
district court. 88
Before October 1, 1992, the decision to reject or cancel the complaint had to be
transmitted by letter to the complainant and the claimant's representative. The letter had
to inform the complainant of the right to appeal to the EEOC, of the time limit for the
appeal, and of the right to file a civil action. 89 However, for age discrimination claims,
the complainant needed only to be notified of the right to appeal to the EEOC. 90
1729 ----Rejection or cancellation of complaint [SUPPLEMENT]
Regulations:
Footnotes
Footnote 76. 29 CFR 1614.107(a).
Footnote 77. 29 CFR 1614.107(b).
Footnote 78. 29 CFR 1614.107(c).
Footnote 79. 29 CFR 1614.107(d).
Footnote 80. 29 CFR 1614.107(e).
Footnote 81. 29 CFR 1613.215(a)(1).
Footnote 82. 29 CFR 1615.215(a)(3).

Footnote 83. Mahroom v Hook (1977, CA9) 563 F2d 1369, 16 BNA FEP Cas 130, 15
Cas 699, 16 CCH EPD 8291.
Footnote 84. Chavez Colon v Chairman of Bd. of Directors of Federal Deposit Ins. Corp.
(1989, DC Puerto Rico) 723 F Supp 842, 53 CCH EPD 39845.
Footnote 85. 29 CFR 1614.107(f).
Footnote 86. 29 CFR 1614.107(g).
Footnote 87. 29 CFR 1614.107(h).
Footnote 88. Thurlow v Department of Defense (1989, ED Pa) 1989 US Dist LEXIS
9590.
Footnote 89. 29 CFR 1613.215(b).
Footnote 90. 29 CFR 1613.514.
1730 Consolidation and joint processing of complaints

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Effective October 1, 1992, an agency may consolidate or join for processing two or more
discrimination complaints containing substantially similar allegations or relating to the
same matter, or two or more complaints from the same complainant, after appropriate
notification to the parties. The date of the first filed complaint controls the applicable
time frames. 91
Before October 1, 1992, two or more discrimination complaints filed with a federal
agency that contain substantially similar allegations may be consolidated or joined for
processing by the agency with the written consent of the complainants. 92
1730 ----Consolidation and joint processing of complaints [SUPPLEMENT]
Regulations:
Footnotes
Footnote 91. 29 CFR 1614.606.

Footnote 92. 29 CFR 1613.251(a), (b).
(2). Time Limits [1731-1733]
1731 Extension of time limits for counseling or filing a complaint

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Effective October 1, 1992, a complainant and agency may, before the end of the
counseling period, extend the period for up to 60 days. 93 The counseling period will be
extended to 90 days if a complainant agrees to participate in an agency's established
dispute resolution procedures. 94
Under both the regulations effective before and after October 1, 1992, complainants are
entitled to an extension of the time limits to file a complaint 95 or to consult with an
EEO counselor 96 if they were not notified of the time limits and were not otherwise
aware of them, or were prevented by circumstances beyond their control from acting
within them. 97
Courts have taken different approaches to the question of what circumstances may trigger
extensions of the time limits. Interpretations decided under the old regulations should be
useful even after October 1, 1992, since 29 CFR 1614.105(a)(2) and 29 CFR
1613.214(a)(4) provide identical grounds for extension of the time limits. Thus, it is
likely that courts will apply a similar analysis to extension issues after the new time
limitations took effect on October 1, 1992. Under one approach, the exception is not
applied coextensively with the common law theory of estoppel, so that the complainant
need not show affirmative misconduct by an agency with regard to notice. Rather, in
evaluating whether an individual was notified of the time limit, the inquiry should center
on whether the agency's notification was "reasonably geared" to inform the individual of
the time limit in the sense that the limit was or should have been apparent to a person
with a "reasonably prudent regard" for applicable rights. 98 Under a second approach,
the "prudent person" test should not be applied because the notice requirements entail an
employer's affirmative obligations. Under this approach, the focus should be on an
agency's obligation to provide notice, rather than on an employee's diligence in pursuing
a claim. 99
A third approach combines an analysis of an individual's subjective ignorance of the time
limits and the sufficiency of the agency's notification under the "reasonably geared" test.
For example, the placing of a single, inconspicuous EEO notice on a bulletin board
indicated that the notice was not "reasonably geared" to inform a person of the time
limits, as evidenced by the complainant's ignorance of the limits. 1
Apart from the issue of the sufficiency of notification, the regulatory exception may be
applied when an individual did not become aware of the discriminatory acts in question
until after the limit had expired. 2
A complainant may also receive an extension of the time limits "for other reasons
considered sufficient by the agency." 3 Such a reason includes granting the complainant
an additional seven daysthe number of days that remained in the period when the
complainant filed at the wrong addressto file at the correct address, even though the fact
that the complainant was initially given the wrong filing addresses was not a
circumstance beyond the complainant's control which prevented the filing of a timely
complaint. 4 Also, this exception permits noncompliance with the 30-day counseling
period 5 when the agency accepts an untimely complaint, acts upon it, and finds
discrimination. 6 However, an agency's mere acceptance and investigation of an
untimely complaint, without a finding of discrimination, is not sufficient reason to extend
the time period. 7
Once an agency informs a complainant of the regulatory time limits, those limits begin to
run. Thus, an extension that had been granted to the complainant in order to allow
consultation with an agency labor employee was discontinued once the complainant
learned of the 30-day counseling period. 8
1731 ----Extension of time limits for counseling or filing a complaint
[SUPPLEMENT]
Regulations:
Footnotes
Footnote 93. 29 CFR 1614.105(e).
Footnote 94. 29 CFR 1614.105(f).
Footnote 95. 1725.
Footnote 96. 1723.
Footnote 97. 29 CFR 1613.214(a)(4), 1614.105(a)(2).
Footnote 98. Theard v U.S. Army (1987, MD NC) 653 F Supp 536, 53 BNA FEP Cas
996, affd (CA4) 843 F2d 1388.
116.
Footnote 99. Kontos v U.S. Dept. of Labor (1987, CA7) 826 F2d 573, 45 BNA FEP Cas
300, 44 CCH EPD 37337.

Footnote 1. Decker v U.S. Postal Service (1984, WD Ky) 603 F Supp 503.
Footnote 2. Myles v Schlesinger (1976, ED Pa) 436 F Supp 8, 18 BNA FEP Cas 847.
Footnote 3. 29 CFR 1613.214(a)(4), 1614.105(a)(2).
Footnote 4. Lopez v Louisiana Nat. Guard (1990, ED La) 733 F Supp 1059, 55 CCH
EPD 40475, affd without op (CA5) 917 F2d 561.
Footnote 5. 1723.
Footnote 6. Oaxaca v Roscoe (1981, CA5) 641 F2d 386, 26 BNA FEP Cas 31, 25 CCH
EPD 31697.
Footnote 7. Bruno v Brady (1992, ED Pa) 1992 US Dist LEXIS 3385.
116.
Footnote 8. Kontos v U.S. Dept. of Labor (1988, ND Ill) 1988 US Dist LEXIS 12584.
1732 Excusing noncompliance with time limits on equitable grounds

View Entire Section
In cases arising under the regulations effective prior to October 1, 1992, courts have
viewed the time limits applicable to federal sector complaints 9 as analogous to statutes
of limitations in that they are subject to waiver, estoppel, and equitable tolling. 10 The
Ninth Circuit agrees with this reasoning, at least with regard to the 30-day period within
which a complaint must be brought to the attention of an EEO counselor. 11 However, a
district court in another Circuit refused to toll the 30-day counseling period despite the
complainant's assertion that he was unaware of the period. 12
Observation: The time limits applicable to federal sector complaints filed after
October 1, 1992, which include an extended 45-day period for consultations with an
EEO counselor, should also be subject to waiver, estoppel, and equitable tolling in
those circuits which have previously recognized these doctrines as bases for excusing
noncompliance with regulatory requirements.
Whether or not to excuse a failure to meet administrative time limits is a question of fact
decided by the court independently of any administrative finding on the matter. 13 The
availability of equitable modification depends, therefore, on the circumstances of a
particular case. For example, strict compliance with time limits was not required when:
a complaint was filed only two days late and the court decided that "basic equity"
required that the lapse be overlooked. 14
an agency delayed in responding to an employee's request for information and the
response, when received, provided the facts necessary to support a discrimination charge.
15
an agency did not give the complainant any guidance or information regarding the time
limits or procedures for establishing his claim. 16
However, strict compliance with time limits was required and equitable modification was
inappropriate when the evidence contradicted the employee's assertion that he was
unaware of the discrimination complaint procedure under the Rehabilitation Act and did
not know to whom to complain. 17
Footnotes
Footnote 9. 1723-1725.
Footnote 10. Second CircuitRoyall v U.S. Postal Service (1985, ED NY) 624 F Supp
211, 41 BNA FEP Cas 311; Tillett v Carlin (1985, DC Conn) 637 F Supp 245, 42 BNA
FEP Cas 974.
Fourth CircuitZografov v V.A. Medical Center (1985, CA4) 779 F2d 967, 45 BNA
Fifth CircuitHenderson v U.S. Veterans Admin. (1986, CA5) 790 F2d 436, 40 BNA
FEP Cas 1524, 40 CCH EPD 36302.
Sixth CircuitBoddy v Dean (1987, CA6) 821 F2d 346, 45 BNA FEP Cas 586, 43 CCH
EPD 37172.
Seventh CircuitRennie v Garrett (1990, CA7) 896 F2d 1057, 54 BNA FEP Cas 932, 52
CCH EPD 39706.
D.C. CircuitSaltz v Lehman (1982) 217 App DC 354, 672 F2d 207, 28 BNA FEP Cas
289, 28 CCH EPD 32501.
116.
EPD 31215.
Footnote 12. Carroll v Frank (1989, MD Ga) 1989 US Dist LEXIS 15253.
Footnote 13. Rozier v Roudebush (1977, SD Ga) 444 F Supp 861, 20 BNA FEP Cas
1016.
Footnote 14. Royall v U.S. Postal Service (1985, ED NY) 624 F Supp 211, 41 BNA FEP
Cas 311.
Footnote 15. Loe v Heckler (1985) 247 App DC 292, 768 F2d 409, 38 BNA FEP Cas
835, 37 CCH EPD 35465.
Footnote 16. Dodds v Derwinski (1991, ND Ill) 1991 US Dist LEXIS 13608.
116.
Footnote 17. Barsten v Department of Interior (1991, CA9) 1991 US App LEXIS 25070.
1733 --Criteria for excusing noncompliance

View Entire Section
In cases decided under regulations effective until October 1, 1992, courts have used
various criteria to determine whether or not the time limits for filing a complaint should
be excused on equitable grounds. For example, some courts will not estop the
government from insisting on compliance with the time limits absent a showing of
"affirmative misconduct", 18 and one court also insists on a showing of "serious
injustice" to the complainant from such misconduct. 19
Similarly, the time limit will be tolled only when the circumstances of the case rise to the
level of "active deception" sufficient to invoke the court's equitable powers. "Active
deception" includes: (1) an agency lulling a claimant into inaction, and (2) a claimant
being actively misled or in some extraordinary way being prevented from asserting
applicable rights. 20 Actively misleading a complainant could include not properly
posting the EEOC filing requirements, not having the counselor be available at the site
for some time, or a counselor withholding information on the proper procedures when
asked directly about them. 21 However, when the purposes of the notification
requirement are served because the agency has been given notice of the complaint and
ample opportunity to resolve it without litigation, the question of whether the
complainant was misled by the agency as to applicable time limits is only one fact issue
to be resolved at trial and is not dispositive as to whether equitable tolling is warranted.
22
Other bases for excusing noncompliance with time limitations include when a
complainant has timely asserted his rights mistakenly in the wrong forum, 23 or when
the complainant was ignorant of the EEO counseling period and did not diligently pursue
administrative remedies until retaining an attorney. 24 However, a complainant's
subjective awareness of discrimination is not a recognized basis for equitable tolling. 25
Nevertheless, when an allegedly discriminatory promotion policy was never publicized,
and a complainant had no reason to know about the policy's application to her until being
told about it after initiating an inquiry, her failure to challenge the policy for seven years
after its adoption was excused. 26
The limitations period was also tolled when the complainant was unaware of the
pre-complaint processing period, though generally aware of the right to file a complaint.
27 Nevertheless, when an agency has posted notice of time limitations, and, therefore,
sufficiently publicized them, the fact that a complainant did not receive personal notice
cannot excuse noncompliance with them. 28
According to one court, however, 29 CFR 1613.214(a)(4) 29 provides the proper
guidelines for determining whether or not the 30-day time limit for consulting an EEO
counselor should be tolled. 30
Observation: It is likely that courts will continue to have differing views on what
circumstances justify noncompliance with federal sector time limitations after October
1, 1992, when new EEOC regulations took effect that in some circumstances allow for
an extended time period. 31
Footnotes
EPD 31215; Giles v Carlin (1986, ED Mich) 641 F Supp 629, 45 BNA FEP Cas 1067.
116.
Footnote 19. Giles v Carlin (1986, ED Mich) 641 F Supp 629, 45 BNA FEP Cas 1067.
Footnote 20. Alvidrez v Tisch (1988, DC Kan) 684 F Supp 651, 46 BNA FEP Cas 1415,
48 CCH EPD 38433.
Footnote 21. Madrid v Rice (1990, DC Wyo) 730 F Supp 1078, 52 BNA FEP Cas 221,
53 CCH EPD 39913.
Footnote 22. Richardson v Frank (1991, CA10) 975 F2d 1433, 59 BNA FEP Cas 1594,
59 CCH EPD 41754.
Footnote 24. Gilbert v Tisch (1987, SD NY) 43 CCH EPD 37245.
FEP Cas 431.
116.
Footnote 27. Bayer v U.S. Dept. of Treasury (1992, App DC) 58 BNA FEP Cas 162, 58
CCH EPD 41290.
116.
Footnote 28. Taylor v Dole (1988, DC Mass) 47 BNA FEP Cas 1547, 47 CCH EPD
38313.
Footnote 29. 1731.
Footnote 30. Bailey v Tisch (1988, SD Ohio) 683 F Supp 652, 46 BNA FEP Cas 771.
Observation: Bailey's apparent limitation of the grounds for equitable tolling to

those specified in the regulation appears unnecessarily restrictive. Under the equitable
tolling rationale, it is necessary to examine the facts of a case and determine whether
tolling is appropriate in order to avoid injustice under the circumstances, and those
circumstances should not be unduly limited such that tolling is denied merely because
the plaintiff did not meet a narrow test.
Footnote 31. 1731.
As to the effect the filing of a class action has on the running of the limitations period for
filing individual discrimination complaints, see 1761.
(3). Investigations [1734, 1735]
1734 Generally
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Effective October 1, 1992, an agency against which a complaint has been filed must
conduct an investigation of the complaint. 32 The investigation must be conducted by

investigators with appropriate security clearances. 33 The agency may use an exchange
of letters, or memoranda, interrogatories, investigations, fact-finding conferences or any
other methods that efficiently and thoroughly address the matters at issue. Agencies may
also incorporate alternative dispute resolution techniques into their investigations to
facilitate early resolution of complaints. 34
The complainant, the agency, and any agency employee must produce whatever
documentary and testimonial evidence the investigator deems necessary. 35
Investigators may administer oaths, and take witness statements under oath or
affirmation, or by written statement under penalty of perjury. 36 When the
complainant, or the agency, or its employees, fail without good cause to respond fully
and in timely fashion to requests for documents, records, comparative data, statistics,
affidavits, or the attendance of witnesses, the investigator may recommend in the
investigative file that the decisionmaker:
(1) draw an adverse inference that the requested information or testimony would reflect
unfavorably on the recalcitrant party;
(2) consider the matters to which the requested information or testimony pertain to be
established in favor of the cooperating party;
(3) exclude other evidence offered by the recalcitrant party;
(4) issue a decision fully or partially in the cooperating party's favor;
(5) take such other actions as are deemed appropriate. 37
Effective October 1, 1992, the agency must complete its investigation within 180 days of
the date the individual complaint is filed, or within the time period contained in an order
from the Office of Federal Operations on an appeal from a dismissal. 38 The parties
may agree in writing to voluntarily extend the time period for an additional 90 days. The
agency may unilaterally extend the time period or any extension period for an additional
30 days in order to purge a complaint of classified information pursuant to Executive
Order 12356, or successor orders, provided the agency notifies the parties of the
extension. 39 Investigations on complaints filed before October 1, 1992 must be
completed by October 1, 1993. 40
Within 180 days of the filing of the complaint, or other applicable time period, an agency
must notify the complainant that the investigation has been completed, provide the
complainant with a copy of the investigative file, and notify the complainant that, within
30 days, the complainant has the right to request a hearing before an administrative judge
or to receive an immediate final decision from the agency. 41
The regulations in effect before October 1, 1992 essentially provide the same procedures
for conducting an investigation as the regulations applicable after October 1, 1992,
except that the pre-October 1, 1992 regulations did not authorize investigators to
recommend a disposition of the complaint in the investigative file, and did not require
completion of the investigation within 180 days. 42
When an agency's investigation of a charge represents an occasion for a conflict of
interest, the investigation may be referred to the EEOC. For example, a charge against
the Secretary of the Army was processed by the EEOC's district director after one of the
alleged discriminators had become the Administrator of the Army's Civilian Appellate
Review Agency. 43
Caution: Agencies that permit officials to view documents outside of the official
investigative file for any purpose relating to the federal employee's complaint, or that
permit supplementary investigations into other personnel or EEO records by persons
who are not officially responsible for investigations, may violate the Privacy Act and
be subjected to liability for at least 1,000.00 in damages. 44
Regulations:
Footnotes
Footnote 32. 29 CFR 1614.108(a).
Footnote 33. 29 CFR 1614.108(d).
Footnote 34. 29 CFR 1614.108(b).
Footnote 35. 29 CFR 1614.108(c)(1).
Footnote 36. 29 CFR 1614.108(c)(2).
Footnote 37. 29 CFR 1614.108(c)(3).
Footnote 38. 1747.
Footnote 39. 29 CFR 1614.108(e).
Footnote 40. 57 Fed Reg 12646, 4/10/92.
Footnote 41. 29 CFR 1614.108(f).
Footnote 42. 29 CFR 1613.216.
Footnote 43. Brown v Marsh (1988, DC Dist Col) 729 F Supp 864, 51 BNA FEP Cas
838.
1735 Elimination of informal adjustment procedures and proposed disposition
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Under regulations in effect before October 1, 1992, after the investigation is completed,
the agency must give the complainant a copy of the investigative file to review and an
opportunity to discuss it with appropriate officials in an effort to adjust the complaint
informally. 45
Effective October 1, 1992, federal sector discrimination complaints are no longer subject
to informal adjustment and proposed disposition procedures after the agency's
investigation, since agencies should be able to complete their investigations in the same
amount of time it takes to reach the proposed disposition stage. 46
Observation: A complainant is still free to reach a voluntary settlement agreement

with the agency at any stage of the complaint process, which is binding on the agency,
and subject to an enforcement appeal. 47
1735 ----Elimination of informal adjustment procedures and proposed disposition
[SUPPLEMENT]
Regulations:
Footnotes
Footnote 45. 29 CFR 1613.217(a).
Footnote 46. 57 Fed Reg 12635, 4/10/92.
Footnote 47. 1757.
(4). Hearings [1736-1742]
1736 Right to hearing before the final decision

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Effective October 1, 1992, within 30 days of receipt of an agency's investigative file, the
complainant may request a hearing before an administrative judge on notification from
the agency. When notice is not given, the complainant may request a hearing at any time
after 180 days have passed from the filing of the complaint. 48 Formerly, if the
complainant did not request a hearing from the agency within 15 days of notice of the
agency's proposed disposition of the complaint, 49 the appropriate EEO officer, if
authorized to make a decision for the agency head, could adopt the proposed disposition
as the agency's decision, and then inform the complainant of the right to appeal to the
EEOC or to file a civil action. 50 If the officer did not issue a decision, the complaint
and complaint file were forwarded to the agency head for a decision. 51
1736 ----Right to hearing before the final decision [SUPPLEMENT]
Regulations:
Footnotes
Footnote 48. 29 CFR 1614.108(f).
For complaints filed before October 1, 1992, the 180-day period ends on April 1, 1993.
57 Fed Reg 12646, 4/10/92.
Footnote 49. 1735.
Footnote 51. 29 CFR 1613.217(d).
1737 Right to an immediate final decision without a hearing

View Entire Section
Effective October 1, 1992, within 30 days of receipt of the investigative file, in lieu of
requesting a hearing before an administrative judge, 52 the complainant may request an
immediate final decision 53 from the agency with which the complaint was filed. 54
That decision must be reached within 60 days of the complainant's request. 55 Until
October 1, 1992, if the complainant had requested a decision without a hearing or had not
notified the agency whether a hearing was requested within the applicable time limit, the
agency treated those actions as requests for an immediate decision, and was to issue a
final decision no later than February 1, 1993. 56
Footnotes
Footnote 52. 1736.
Footnote 53. 1745.

Footnote 54. 29 CFR 1614.108(f).
Footnote 55. 29 CFR 1614.110.
Footnote 56. 57 Fed Reg 12646, 4/10/92.
1738 Powers and duties of administrative judge

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Effective October 1, 1992, when a complainant requests a hearing, 57 the agency must
ask the EEOC to appoint an administrative judge to conduct a hearing in accordance with
regulations. The AJ conducting the hearing must have appropriate security clearances. 58
In conducting a hearing, the AJ has the power to:
(1) remand issues for further processing; 59
(2) regulate discovery; 60
(3) limit attendance at the hearing; 61
(4) require the production of necessary documentary and testimonial evidence; 62
(5) issue findings and conclusions, and order relief for victims of discrimination. 63
Observation: The AJ may also issue factual findings and legal conclusions of law
without holding a hearing if there are no material facts or issues left in dispute. 64
Observation: With the exception of the power to remand issues for further
processing, these powers and duties closely mirror those which AJs enjoyed before
October 1, 1992. 65
1738 ----Powers and duties of administrative judge [SUPPLEMENT]
Regulations:
Footnotes
Footnote 57. 1736.

Footnote 58. 29 CFR 1614.109(a).
Footnote 59. 1739.
Footnote 60. 1740.
Footnote 61. 1742.
Footnote 62. 1741.
Footnote 63. 29 CFR 1614.019(b)-(f).
The administrative judge's power to issue findings and conclusions, and order relief for
victims of discrimination is discussed at 1743.
Footnote 64. 1743.
Footnote 65. 29 CFR 1613.218.
1739 Remand of issues for further processing

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Effective October 1, 1992, when an administrative judge determines that a complainant is
raising or intends to pursue issues like or related to those raised in the complaint, but
which the agency has not had an opportunity to address, the judge must remand any such
issue for further pre-complaint counseling 66 or other such processing. 67
Observation: Judges did not expressly have this authority before October 1, 1992.
68
Footnotes
Footnote 66. 1723.
Footnote 67. 29 CFR 1614.109(a).
Footnote 68. 57 Fed Reg 12642, 4/10/92.
1740 Regulation of discovery

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Effective October 1, 1992, the administrative judge conducting a hearing 69 must notify
the parties of the right to seek discovery before the hearing and may issue appropriate
discovery orders. Unless the parties agree in writing concerning the methods and scope
of discovery, the party seeking discovery must request authorization from the judge or
examiner before beginning discovery. Each party is entitled to reasonable development
of evidence on matters relevant to the issues raised in the complaint, although the judge
or examiner may limit the quantity and timing of discovery. Evidence may be developed
through interrogatories, depositions, and requests for admissions, stipulations or
production of documents. A party may refuse to produce evidence that is irrelevant,
overburdensome, repetitious, or privileged. 70
When the complainant, agency, or agency employee fails without good cause to respond
fully and in a timely fashion to a party's discovery requests, the judge may, in appropriate
circumstances:
(1) infer that the requested information or testimony would reflect unfavorably on the
recalcitrant party;
(2) consider the matters to which the requested information or testimony pertain to be
established in favor of the requesting party;
(3) exclude other evidence offered by the recalcitrant party;
(4) issue a decision fully or partially in favor of the requesting party;
(5) take such other actions as appropriate. 71
1740 ----Regulation of discovery [SUPPLEMENT]
Regulations:
Footnotes
Footnote 69. 1738.
Footnote 70. 29 CFR 1614.109(b).
Footnote 71. 29 CFR 1613.218(e), 1614.109(d)(3).
1741 Requiring production of documentary and testimonial evidence

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Effective October 1, 1992, an administrative judge may compel the production of such
documentary and testimonial evidence from the complainant, the agency, or an agency
employee, as the AJ deems necessary during a hearing. 72 The AJ must receive into
evidence information or documents relevant to the complaint. Rules of evidence are not
strictly applied, although the AJ must exclude irrelevant or repetitious evidence. 73 AJs
may administer oaths, and require witness statements to be made under oath or
affirmation or by written statement under penalty of perjury. 74 Before October 1, 1992,
formal rules of evidence also were not strictly applied at a hearing, and the admission of
evidence was still restricted to information bearing on the complaint or relevant
employment policy or practices, while irrelevant or unduly repetitious evidence was
excluded. 75
Effective October 1, 1992, agencies must provide for the attendance at a hearing of all
employees approved as witnesses by an AJ. 76 Before October 1, 1992, an AJ could not
only require the appearance of an agency employee whose testimony was necessary to
furnish information pertinent to the complaint, or when the complainant requested the
employee's appearance, 77 but also could deny the request to call a witness to testify if
the complainant did not take specified steps to arrange for the witness' appearance. 78
Effective October 1, 1992, all documents submitted and accepted at a hearing must be
made part of the hearing record. If the agency submits a document that is accepted, it
must furnish a copy of the document to the complainant, and if the complainant submits a
document that is accepted, the AJ must make it available to the agency representative for
reproduction. 79 This essentially repeats the rule that was in effect before October 1,
1992, except that it was the complainant's responsibility, not the AJ's responsibility, to
make a document available to an agency representative for reproduction. 80
1741 ----Requiring production of documentary and testimonial evidence
[SUPPLEMENT]
Regulations:
Footnotes
Footnote 72. 29 CFR 1614.109(d)(1).
Footnote 73. 29 CFR 1614.109(c).
Footnote 74. 29 CFR 1614.109(d)(2).
Footnote 75. 29 CFR 1613.218(c)(2).

Footnote 76. 29 CFR 1614.109(c).
Footnote 77. 29 CFR 1613.218(f).
Footnote 78. Yanopoulos v Department of Navy (1986, CA FC) 796 F2d 468, cert den
479 US 824, 93 L Ed 2d 48, 107 S Ct 97.
Footnote 79. 29 CFR 1614.109(f).
Footnote 80. 29 CFR 1613.218(h).
1742 Limiting attendance

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An administrative judge may limit attendance at a hearing on a discrimination complaint
to persons the AJ determines have direct knowledge relating to the complaint.
Furthermore, the judge may limit the number of witnesses when testimony would be
repetitious, and exclude any person from the hearing for contumacious conduct or
misbehavior that obstructs the hearing. 81
1742 ----Limiting attendance [SUPPLEMENT]
Regulations:
Footnotes
Footnote 81. 29 CFR 1613.218(c)(1), 29 CFR 1613.218(d), 1614.109(c).
(5). Post-Hearing Procedures [1743-1746]
1743 Issuance of findings and conclusions; orders for relief

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Effective October 1, 1992, within 180 days of a request for a hearing being received by
the EEOC, 82 the administrative judge must issue findings of fact and conclusions of
law on the merits of the complaint, and order appropriate relief when discrimination is
found, unless the AJ makes a written determination that good cause exists for extending
the time for issuance. The AJ must send copies of the entire record, including the
transcript, and the findings and conclusions to the parties by certified mail, return receipt
requested. Within 60 days of receipt of the findings and conclusions, the agency may
reject or modify them or the relief ordered and issue a final decision. 83 If the agency
does not issue a final decision within the 60-day period, then the AJ's findings and
conclusions and the relief ordered becomes the agency's final decision. 84
Also, effective October 1, 1992, the AJ may issue findings and conclusions on a
summary basis, without a hearing, if, either on the basis of a statement from a party, 85
the opposition's response, 86 or on the AJ's own initiative, the AJ determines that some
or all facts are not in genuine dispute.
Before October 1, 1992, after the hearing, the AJ was required to transmit the complaint
file, the record of the hearing, findings and analysis, and a recommended decision on the
merits of the complaint, including recommended remedial action, where appropriate, to
the head of the agency. The complainant was notified of the date on which this was
done. 87 Furthermore, if the AJ determined that there were no issues of material fact,
the AJ could, after giving notice to the parties and providing them an opportunity to
respond in writing within 15 calendar days, issue a recommended decision without
holding a hearing. 88
1743 ----Issuance of findings and conclusions; orders for relief [SUPPLEMENT]
Regulations:
Footnotes
Footnote 82. 1737.
Footnote 83. 1744.
Footnote 84. 29 CFR 1614.109(g).
Footnote 85. 29 CFR 1614.109(e)(1).
Footnote 86. 29 CFR 1614.109(e)(2).
Footnote 87. 29 CFR 1613.218(i).
Footnote 88. 29 CFR 1613.218(g).
1744 Issuance of final agency decision

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Effective October 1, 1992, a federal agency must issue a final decision on a
discrimination complaint filed against it: (1) within 60 days of receiving notification that
the complainant has requested an immediate decision; (2) within 90 days of the date that
the complainant was notified of the right to a hearing or an immediate final decision,
when no such request has been received; or (3) within 60 days of receiving the findings
and conclusions of the administrative law judge. 89 When a complaint was filed before
October 1, 1992, and the complainant had requested a final decision without a hearing or
had not timely notified the agency whether a hearing was requested, the agency had to
treat these actions as requests for an immediate decision from the agency and issue a final
decision by February 1, 1993. 90
The AJ's findings and conclusions become the agency's final decision if the agency does
not reject or modify them within 60 days of receiving them. 91
Agencies also must either adopt, reject, or modify the AJ's decision on a complaint filed
before October 1, 1992, within 60 days after receiving it, or the decision is binding on the
agency. 92 This requirement applies to both procedural and substantive objections.
Therefore, an agency's procedural objections must also be made within 60 days of
receiving the decision, or the objection will be deemed untimely. 93
1744 ----Issuance of final agency decision [SUPPLEMENT]
Regulations:
Case authorities:
Though the State Personnel Commission did not make its decision in this case within 90
days after receiving the official record, it did make its decision within 90 days of its next
regularly scheduled meeting; therefore, the decision was timely, and the trial court
properly refused to find that the decision was made on unlawful procedure. GS
150B-44. White v North Carolina Dep't of Correction (1995) 117 NC App 521, 451 SE2d
876, motion gr 117 NC App 138.
Footnotes
Footnote 89. 29 CFR 1614.110.
Footnote 90. 57 Fed Reg 12646.

Footnote 91. 29 CFR 1614.109(g).
Footnote 92. 29 CFR 1613.220(d), 1613.221(b).
Footnote 93. Brown v Marsh (1988, DC Dist Col) 729 F Supp 864, 51 BNA FEP Cas
838.
1745 Required contents of final agency decision

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Effective October 1, 1992, a final agency decision on a complaint of discrimination filed
against the agency must consist of the agency's findings on the merits of each issue in the
complaint and, when discrimination is found, appropriate relief. Also, the decision must
contain notice of the right to appeal to the EEOC, the name and address of the agency
official upon whom an appeal should be served, notice of the right to file a civil action in
federal district court, the name of the proper defendant in such an action, and the
applicable time limits for appeals and lawsuits. A copy of EEOC Form 573, Notice of
Appeal/Petition must be attached to the decision. 94
The decision may also include an award of fees and costs. 95
Before October 1, 1992, whether or not there is a finding of discrimination, the agency's
decision must require any authorized remedial action necessary to resolve the issue of
discrimination and to promote the policy of equal opportunity. If discrimination is found,
the decision will advise the complainant and representative of the procedure to requesting
attorney's fees and costs. 96
1745 ----Required contents of final agency decision [SUPPLEMENT]
Regulations:
Footnotes
Footnote 94. 29 CFR 1614.110.
Footnote 95. 29 CFR 1614.501(e)(2)(i); see 1746.
Footnote 96. 29 CFR 1613.221(c).
1746 Attorney's fees and costs

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When fees or costs are to be awarded, a complainant's attorney must submit a verified
statement of costs and fees, and the attorney's affidavit, as appropriate, to the agency
within 30 days of receipt of the decision, unless a request for reconsideration is filed. 97
If the parties cannot reach an agreement on the amount of fees and costs within 20 days
of the agency's receipt of the verified statement and affidavit, the agency will issue a
decision determining the amount of fees or costs within 30 days of receipt of the
statement. 98
Under regulations effective until October 1, 1992, documentation of costs and fees must
be filed within 20 days of the receipt of the decision. 99
1746 ----Attorney's fees and costs [SUPPLEMENT]
Regulations:
Footnotes
Footnote 97. 29 CFR 1614.501(e)(2)(i).
Footnote 98. 29 CFR 1614.501(e)(2)(ii)(A).
Footnote 99. 29 CFR 1613.221(c).
c. Appeals to EEOC of Individual Complaints [1747-1757]
1747 Matters that may be appealed

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A complainant may appeal to the EEOC:
(1) an agency's final decision, or the agency's dismissal of all or a portion of a complaint;
(2) a final decision of the agency, arbitrator, or Federal Labor Relations Authority
(FLRA) under 5 USCS 7121(d) on a grievance when an issue of employment
discrimination was raised in a negotiated grievance procedure, but not when the matter
initially raised in the procedure is still ongoing, is in arbitration, is before the FLRA, is
appealable to the Merit Systems Protection Board (MSPB), or when the agency is not
subject to the negotiated grievance procedure; or
(3) an agency's alleged noncompliance with the terms of a settlement agreement or final
decision. 1
An appeal concerning alleged noncompliance with the terms of a settlement agreement or
final decision must be preceded by written notification of the alleged noncompliance to
the agency's EEO director within 30 days of when the complainant knew or should have
known of the noncompliance. The complainant may request that the terms of the
agreement be specifically implemented or that the complaint be reinstated for further
processing. 2
Observation: The bases for appeal before October 1, 1992 were essentially
unchanged. 3
A party may file exceptions to an arbitration decision either with the FLRA or by appeal
to the EEOC. If exceptions are filed with the FLRA, an adverse decision in that appeal
may be further appealed to the EEOC. 4
1747 ----Matters that may be appealed [SUPPLEMENT]
Regulations:
Footnotes
Footnote 1. 29 CFR 1613.231(a), 1613.231(b), 1614.401.
Footnote 2. 29 CFR 1614.504(a).
Footnote 3. 29 CFR 1613.231(a), 1613.231(b).
Footnote 4. Johnson v Wilson (1990, DC Dist Col) 54 BNA FEP Cas 689.
1748 Filing appeal

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Effective October 1, 1992, an appeal filed under authority of 29 CFR 1614.401 must
be filed with the Director, Office of Federal Operations, EEOC, P.O. Box 19848,
Washington, D.C. 20036, or by personal delivery or facsimile. The complainant must use
EEOC Form 573, Notice of Appeal/Petition, and indicate the subject of the appeal. 5
Also effective October 1, 1992, except for "mixed case" complaints, 6 a complainant
has 30 days in which to appeal the dismissal or all or part of a complaint or any final
decision. A grievance decision may be appealed within 30 days of receipt of the
decision. When the complainant has notified the agency's EEO director of alleged
noncompliance with a settlement agreement, the complainant may file an appeal 35 days
after serving the allegations of noncompliance, or not later than 30 days after receiving
the agency's determination. 7 When the complainant is represented by an attorney of
record, the 30-day period is calculated from the receipt of the required documentation by
the attorney. In all other instances, the time for the appeal is calculated from the receipt
of the required documentation by the complainant. 8
Before October 1, 1992, a complainant had 20 days from receipt of the federal agency's
notice of final decision on the complaint to file a notice of appeal. If the decision
included an award of attorney's fees or costs, the decision was not final until the proper
procedure was followed for determining the amount of the award. 9 The appeal was
deemed filed on the date it was postmarked, or, in the absence of a postmark, on the date
it was received by the EEOC. 10 The period has been held both to begin only when the
complainant received notice personally, 11 and to begin when the attorney received
notice while the attorney-client relationship was still ongoing and the complainant had
not taken any steps to terminate it. 12
1748 ----Filing appeal [SUPPLEMENT]
Regulations:
Footnotes
Footnote 5. 29 CFR 1614.403(a).
Prior to October 1, 1992, complainant had to file written appeals, either personally or by
mail, with the Director, Office of Review and Appeals, EEOC, 5203 Leesburg Pike, Suite
900, Falls Church, VA 22041.
Footnote 6. 1782.
Footnote 7. 29 CFR 1614.402(a).
Footnote 8. 29 CFR 1614.402(b).
Footnote 9. 1755.
Footnote 10. 29 CFR 1613.233(a).
Footnote 11. Cooper v Lewis (1981, CA5) 644 F2d 1077, 25 BNA FEP Cas 1497, 26
CCH EPD 31829.
Footnote 12. Rao v Baker (1990) 283 App DC 177, 898 F2d 191, 52 BNA FEP Cas 579,
53 CCH EPD 39749.
1749 Effect of untimely appeal

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Effective October 1, 1992, the EEOC must dismiss an untimely appeal by a complainant
who does not file an appeal within the time limits 13 set forth by regulation. 14
Before October 1, 1992, an extension of the 20-day period for filing an appeal could be
requested by a complainant who was not notified of the time limit and was not otherwise
aware of it, or when circumstances beyond the complainant's control prevented the timely
filing of the notice of appeal. The EEOC had the discretion to extend the time limit and
accept the appeal. 15
1749 ----Effect of untimely appeal [SUPPLEMENT]
Regulations:
Footnotes
Footnote 13. 1748.
Footnote 14. 29 CFR 1614.403(c).
Footnote 15. 29 CFR 1613.233(c).
1750 Supporting statements and briefs

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A complainant appealing to the EEOC must submit any supporting statement and briefs
to the Director, Office of Federal Operations, and the agency within 30 days of the filing
of the appeal. 16 This regulatory requirement is essentially unchanged from the
regulation in effect before October 1, 1992. 17
1750 ----Supporting statements and briefs [SUPPLEMENT]
Regulations:
Footnotes
Footnote 16. 29 CFR 1614.403(b).
Footnote 17. 29 CFR 1613.213(a).
1751 Consolidation and joint processing of appeals

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Substantially similar complaints may be consolidated or jointly processed by the EEOC
upon appeal. 18
1751 ----Consolidation and joint processing of appeals [SUPPLEMENT]
Regulations:
Footnotes
Footnote 18. 29 CFR 1613.251(a), 1613.251(b), 1614.606.
1752 Review and supplementation of appellate record
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Effective October 1, 1992, the Office of Federal Operations may review the complaint
file and all written statements and briefs from the parties. The EEOC may supplement
the record by an exchange of letters or memoranda, investigation, remand to the agency,
or other procedures. 19 Each party providing such supplemental information must send
a copy of the information to the other party. 20 Supplementation of the record should
only be permitted in rare instances to avoid a miscarriage of justice. The parties continue
to be responsible for developing a complete record for the agency hearing. 21
Under regulations in effect until October 1, 1992, the EEOC could remand the complaint
to the federal agency for further investigation or a rehearing if it considers that action
necessary. The EEOC could also conduct an additional investigation itself. 22
1752 ----Review and supplementation of appellate record [SUPPLEMENT]
Regulations:
Footnotes
Footnote 19. 29 CFR 1614.404(a).
Footnote 20. 29 CFR 1614.404(b).
Footnote 21. 57 Fed Reg 12636-12637.
Footnote 22. 29 CFR 1613.234(a).
1753 EEOC decision

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The EEOC issues a written decision that sets forth its reasons for its determination.
Copies are sent to the complainant, any designated representative, and the agency. The
decision may provide for appropriate remedies, including attorney's fees or costs. 23
EEOC regulations governing appeals to the agency do not mandate the manner and
timing for rendering a decision. Consequently, a federal court refused to use mandamus
to compel the EEOC to decide a case, even though more than two and a half years had
passed since the appeal was filed with the EEOC. 24
An EEOC decision is final unless a timely request to reopen 25 is filed or the EEOC
reopens the case on its own motion. 26
1753 ----EEOC decision [SUPPLEMENT]
Regulations:
Footnotes
Footnote 23. 29 CFR 1613.234(a), 1614.405(a).
Footnote 24. Klipp v EEOC (1986, ED Pa) 40 BNA FEP Cas 693, 40 CCH EPD 36384.
Footnote 25. 1754.
Footnote 26. 29 CFR 1613.234(b), 1614.405(b).
1754 Request to reopen and reconsider EEOC decision

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The EEOC commissioners may reopen and reconsider any previous decision. 27 An
aggrieved party may request reopening or reconsideration within 30 days of receiving a
final decision or within 20 days of receiving another party's timely request to reopen.
The request must be made to the Office of Review and Appeals and must contain
arguments or evidence tending to establish that:
(1) new and material evidence is available that was not readily available when the
previous decision was issued;
(2) the previous decision involved an erroneous interpretation of law or regulation, or
misapplication of established policy; or
(3) the previous decision is of such an exceptional nature as to have substantial
precedential implications for future cases. 28
The party requesting reopening must give copies of the request to the other parties at the
time of the request along with proof of such submission. 29 Any argument in
opposition to the request must be submitted to the Office of Review and Appeals and to
the requesting party within 20 days of receipt of the request. 30

A decision on a request to reopen is final and neither party can further request reopening.
31
These requirements are essentially unchanged from those in effect prior to October 1,
1992. Under those regulations, if the EEOC decides to reopen a decision, it must do so
within a reasonable period of time after the decision was rendered. A reasonable period
is measured in weeks rather than years. 32 Furthermore, a notice of appeal alone, filed
without arguments or evidence, is not a timely request to reopen, and, therefore, it cannot
suspend the finality of the EEOC's decision. 33
1754 ----Request to reopen and reconsider EEOC decision [SUPPLEMENT]
Regulations:
Footnotes
Footnote 27. 29 CFR 1613.235(a), 1614.407(a).
Footnote 28. 29 CFR 1613.235(b), 1614.407(b), (c).
Footnote 29. 29 CFR 1613.235(c)(1), 1614.407(b).
Footnote 30. 29 CFR 1613.235(c)(2), 1614.407(c).
Footnote 31. 29 CFR 1613.235(d), 1614.407(d).
Footnote 32. Gubisch v Brady (1989, DC Dist Col) 49 BNA FEP Cas 1063, 50 CCH
EPD 39183.
Footnote 33. Chapman v Frank (1989, MD La) 727 F Supp 1033, 51 BNA FEP Cas 1474.
1755 Attorney's fees and costs

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Effective October 1, 1992, when a decision of an employer agency or the EEOC provides
for an award of attorney's fees or costs, the complainant's attorney must submit a verified
statement of costs and fees to the agency within 30 days of receipt of the decision, unless
reconsideration is requested. The statement must be accompanied by an affidavit
executed by the attorney of record itemizing charges for legal services.
The amount of attorney's fees or costs awarded the complainant must be determined by
agreement between the complainant, the complainant's representative, and the agency,
and the agreement must immediately be reduced to writing. If agreement cannot be
reached within 20 calendar days of receipt of the verified statement and accompanying
affidavit, the agency must issue a decision determining the amount within 30 calendar
days of receipt of the statement and affidavit. The decision must include the specific
reasons for the determination. 34
These procedures for obtaining attorney's fees and costs are essentially unchanged from
the procedures in effect prior to October 1, 1992, except that the request had to be made
within 20 days of the receipt of the decision, and no mention was made of extending the
period if a request for reconsideration were filed. 35
1755 ----Attorney's fees and costs [SUPPLEMENT]
Regulations:
Footnotes
Footnote 34. 29 CFR 1614.501(e)(2).
Footnote 35. 29 CFR 1613.271(d)(2).
1756 Enforcement of final EEOC decisions

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Any corrective action included in a final EEOC decision is mandatory and binding on the
agency, except insofar as the decision may be reopened. Corrective action must be
completed within 60 days of the decision becoming final. 36 A complainant who
believes that the agency is not complying may petition the EEOC for enforcement of the
decision. The petition must be submitted to the Office of Review and Appeals and
specifically explain why the complainant believes that the agency is not complying. 37
The use of the term "may" in the regulation with regard to petitioning the EEOC for
enforcement of a decision means that the complainant must first petition the EEOC for
enforcement before seeking enforcement in federal court. 38
The Office will investigate the charges and, if the agency is not in compliance, will try to
obtain compliance or, if necessary, clarify the EEOC decision to further explain its
meaning or intent. 39
If the Office is unable to obtain compliance, the Director of the Office will forward
appropriate findings and recommendations for enforcement to the EEOC or other
appropriate agency. 40
The EEOC may issue a notice to show cause why the agency is not complying or may
refer the matter for enforcement action. In any event, if it determines that the agency has
not complied or has not reported on corrective action as required, the EEOC will notify
the complainant of the right to file a civil enforcement action and to seek judicial review
in federal court or to begin de novo proceedings in federal court under the appropriate
statutes. 41
1756 ----Enforcement of final EEOC decisions [SUPPLEMENT]
Regulations:
Footnotes
Footnote 36. 29 CFR 1613.237, 1614.502.
Footnote 37. 29 CFR 1613.238(a), 1614.503(a).
Footnote 38. Curtis v Mosbacher (1990, DC Dist Col) 52 BNA FEP Cas 1141, 55 CCH
EPD 40477.
Footnote 39. 29 CFR 1613.238(b), 1613.238(c), 1614.503(b), (c).
Footnote 40. 29 CFR 1613.238(d), 1614.503(d).
Footnote 41. 29 CFR 1613.239, 1614.503(e), (g).
1757 Appealing noncompliance with voluntary settlement agreements

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A settlement agreement knowingly and voluntarily entered into the parties, at any stage
of the complaint process, is binding on both parties. 42 Effective October 1, 1992, when
an agency does not respond to a complainant in writing concerning its alleged
noncompliance with a voluntary settlement agreement, or if the complainant is not
satisfied with the agency's attempt to resolve the matter, the complainant may appeal to
the EEOC for a determination as to whether the agency has complied with the terms of
the agreement. The appeal may be filed 35 days after service of the allegations of
noncompliance, but it must be filed within 20 days of receipt of an agency's
determination. 43
The EEOC may request that the parties submit any additional information or
documentation deemed necessary or may direct that an investigation or hearing on the
matter be conducted. If the EEOC determines that agreement has not been complied with
and the noncompliance is not attributable to acts or conduct of the complainant, it may
order such compliance or it may order that the complaint be reinstated for further
processing from the point at which processing was ceased under the terms of the
settlement agreement. 44
These procedures for appealing noncompliance with voluntary settlement agreements
remain essentially unchanged from the procedures that were in effect before October 1,
1992, except that those procedures required the agency to decide the appeal within 30
days. 45
1757 ----Appealing noncompliance with voluntary settlement agreements
[SUPPLEMENT]
Regulations:
Footnotes
Footnote 42. 29 CFR 1614.504.
Footnote 43. 29 CFR 1614.504(b).
Footnote 44. 29 CFR 1614.504(c).
Footnote 45. 29 CFR 1613.217(b).
d. Class Complaints [1758-1778]
(1). Agency Processing [1758-1774]
1758 Determining proper class

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A class complaint may be presented on behalf of a group of federal agency employees,
former employees, or applicants for employment who allegedly have been, are being, or
may be adversely affected by personnel management policy or practice that the agency
has authority to rescind or modify and that discriminates against the group. 46
The AJ 47 may recommend that a class be divided into subclasses and that each
subclass be treated as a class. 48
1758 ----Determining proper class [SUPPLEMENT]
Regulations:
Footnotes
Footnote 46. 29 CFR 1613.601(c), 1614.204(a)(1).
Footnote 47. 1764.
Footnote 48. 29 CFR 1613.604(f), 1614.204(d)(6).
1759 Class agent; right to representation

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The person who acts for the class during the processing of the class complaint must be a
class member. 49
At all stages in the preparation, presentation, or appeal of a class discrimination
complaint, the class agent has the right to select and be accompanied, represented, and
advised by a representative, as long as the choice of representative does not involve a
conflict of interest or position. The representative must be designated in writing and the
designation made a part of the class complaint. 50
1759 ----Class agent; right to representation [SUPPLEMENT]
Regulations:
Footnotes
Footnote 49. 29 CFR 1613.601(c), 1614.204(a)(3).
Footnote 50. 29 CFR 1613.603(f), 1614.605(a), 1614.605(c).
1760 Consulting an employer's EEO counselor

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Effective October 1, 1992, federal employees or job applicants who wish to file a class
complaint must seek counseling and be counseled by a federal agency's EEO counselor
within 45 days of the date of the alleged discrimination, in accordance with the
procedures required 51 for counseling individual complainants. 52 Counseling can be
extended for an additional 60 days if the complainant agrees to the extension in writing
before the final interview. 53
Observation: Under some circumstances, the time limit for consulting with an EEO
counselor may be extended. 54
1760 ----Consulting an employer's EEO counselor [SUPPLEMENT]
Regulations:
Footnotes
Footnote 51. 1723.
Footnote 52. 29 CFR 1614.204(b).
Footnote 53. 29 CFR 1614.204(e).
For complaints filed before October 1, 1992, the period for consulting the EEO counselor
was only 30 days. 29 CFR 1613.602(a).
Footnote 54. 1731.
1761 Time limits for filing complaint

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Effective October 1, 1992, a complaint alleging classwide discrimination must be filed by
the class agent within 15 days of the agent's receipt of the notice of right to file a class
complaint, at the conclusion of the counseling period. 55 The complaint is deemed filed
on the date it is postmarked, or, in the absence of a postmark, on the date it is received by
the appropriate official. 56
The timely filing of an administrative class complaint tolls the running of the statute of
limitations for all purported members of the class, 57 until class certification is denied.
Once the class is decertified, the limitation period is re-started unless equitably tolled. 58
Observation: Circumstances under which the time limit for filing a complaint may
be extended are the same as for individual complaints. 59
1761 ----Time limits for filing complaint [SUPPLEMENT]
Regulations:
Footnotes
Footnote 55. 29 CFR 1614.204(c)(2).
Footnote 56. 29 CFR 1613.603(e).
Footnote 57. Barrett v U.S. Civil Service Com. (1977, DC Dist Col) 439 F Supp 216, 18
Footnote 58. Andrews v Orr (1988, CA6) 851 F2d 146, 47 CCH EPD 38116.
Footnote 59. 1731.
1762 Contents of complaint

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A class complaint must be signed by the class agent. 60 or the agent's representative. 61
It must include a detailed description of the personnel management policy or practice
giving rise to the complaint and the resultant personnel action adversely affecting the
agent. 62 It must also allege that: (1) the class is so numerous that a consolidated
complaint by class members is impractical;
(2) there are questions of fact common to the class;

(3) the claims of the class agent are typical of the claims of the class; and
(4) the agent or the agent's representative will fairly and adequately protect the interests
of the class. 63
1762 ----Contents of complaint [SUPPLEMENT]
Regulations:
Footnotes
Footnote 60. 29 CFR 1613.603(a), 1614.204(c)(1).
Footnote 61. 29 CFR 1614.204(c)(1).
Footnote 62. 29 CFR 1613.603(b), 1614.204(c)(1).
Footnote 63. 29 CFR 1613.601(b), 1614.204(c)(2).
1763 Time off to present complaint

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A class agent who is an employee in pay status is entitled to have a reasonable amount of
official time to prepare and present a complaint. Similarly, employees representing
employees of the same agency are entitled to use a reasonable amount of official time to
prepare a complaint. 64
1763 ----Time off to present complaint [SUPPLEMENT]
Regulations:
Footnotes
Footnote 64. 29 CFR 1613.603(g), 1614.605(b).
1764 Assignment to administrative judge

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Effective October 1, 1992, the agency must forward the complaint and other pertinent
information to the EEOC within 30 days following receipt of the complaint for
assignment to an administrative judge. 65
After it has been accepted, a class complaint must be processed without undue delay. 66
1764 ----Assignment to administrative judge [SUPPLEMENT]
Regulations:
Footnotes
Footnote 65. 29 CFR 1614.204(d)(1).
Before October 1, 1992, the period for forwarding the complaint to the EEOC was ten
days. 29 CFR 1613.604(a).
Footnote 66. 29 CFR 1613.606, 1614.204(c)(3).
1765 Rejection or cancellation of complaint

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An administrative judge may recommend that the agency reject all or part of the
complaint if:
(1) it was untimely filed;
(2) it consists of an allegation identical to an allegation contained in a previous complaint
filed on behalf of the same class that is either pending in the agency or has been resolved
or decided by the agency;
(3) it is not within the purview of applicable regulations;

(4) it lacks specificity and detail;
(5) it was not submitted in writing or signed by the agent; or
(6) it does not meet the class prerequisites of numerosity, commonality, typicality, and
adequacy of representation;
(7) the class agent did not timely consult with EEO counselor. 67
If an allegation in the complaint is not included in the EEO counselor's report, the class
agent will be given 15 calendar days to explain whether the matter was discussed with
the counselor, and if not, why not. If the explanation is unsatisfactory, the AJ may
recommend that the agency reject the allegation. If it is satisfactory, the allegation may
be referred to the agency for further counseling of the class agent. 68
If an allegation is too vague, the class agent will be given 15 calendar days to provide
specific and detailed information. The AJ may recommend that the agency reject the
complaint if the agent does not timely provide such information. If the information
provided contains new allegations outside the scope of the complaint, the agent will be
advised on how to proceed on an individual or class basis concerning the matter. 69
Any of the AJ's recommendations to the agency on whether to accept, reject, or cancel a
complaint must be transmitted in writing to the agency, the class agent, and the agent's
representative. The AJ's recommendation will become the agency decision unless the
agency rejects or modifies it within 30 calendar days of its receipt. The agent and the
representative are entitled to notice from the agency of its decision to accept, reject, or
cancel a complaint, and the notice of rejection or cancellation must inform the agent of
the right to proceed with an individual complaint of discrimination, to appeal the final
agency decision to the EEOC, and to file a civil action. 70
If the agency accepts the AJ's recommendation to accept a class complaint, individual
complaints concerning the class allegations filed before or after the acceptance are
subsumed into the class complaint, and should not be dismissed. 71
The rules for rejection or cancellation of complaints filed before October 1, 1992 were
essentially the same. 72 Furthermore, the AJ could recommend cancellation of a
complaint for failure to prosecute if an agent did not satisfy a written request for certain
information, or did not otherwise proceed with the complaint, within 15 days of being
notified that the complaint could be canceled, and the notice included a proposed
disposition. 73
1765 ----Rejection or cancellation of complaint [SUPPLEMENT]
Regulations:
Footnotes
Footnote 67. 29 CFR 1613.604(b), 1614.204(d)(2).
Footnote 68. 29 CFR 1613.604(c), 1614.204(d)(3).
Footnote 69. 29 CFR 1613.604(d), 1614.204(d)(4).
Footnote 70. 29 CFR 1613.604(j), 1614.204(d)(7).
Footnote 72. 29 CFR 1613.604(b)-(d), 1613.604(j).
Footnote 73. 29 CFR 1613.604(g).
1766 Notification to class; opting out

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Effective October 1, 1992, class members must be given reasonable notice of the
existence of a complaint by delivery, mail, or posting within 15 days of the complaint's
acceptance by the agency. 74 The notice must contain:
(1) the name of the agency or organizational segment, and its location;
(2) a description of the issues accepted as part of the complaint;
(3) an explanation of the binding nature of the final decision on, or resolution of, the
complaint;
(4) the name, address, and telephone number of the class representative. 75
However, the notice will not contain an opt-out provision, because such a provision is
inconsistent with the certification procedures under Rule 23 of the Federal Rules of Civil
Procedure and is unnecessary, since the required notification protects class members who
wish to participate in the action and those who do not want to participate. 76
Observation: Before October 1, 1992, class members were specifically notified of

their right to opt out of the class. 77
1766 ----Notification to class; opting out [SUPPLEMENT]
Regulations:
Footnotes
Footnote 74. 29 CFR 1614.204(e)(1).
Footnote 75. 29 CFR 1614.204(e)(2).
Footnote 76. 57 Fed Reg 12638-12639.
Footnote 77. 29 CFR 1613.605(b).
1767 Case preparation period

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After a class complaint has been accepted, the administrative judge will notify the class
agent or representative and the agency that a period of not more than 60 calendar days is
allowed both parties to prepare their cases. Either party may request that the AJ extend
the time period. 78
1767 ----Case preparation period [SUPPLEMENT]
Regulations:
Footnotes
Footnote 78. 29 CFR 1613.608(b)(1), 1614.204(f)(1).
1768 Discovery
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Both parties are entitled to the reasonable development of evidence through
interrogatories, depositions, and requests for production of documents. Either party may
object to discovery if the information sought is irrelevant, overly burdensome,
repetitious, or privileged. 79
If mutual cooperation fails, either party may request the AJ to rule on a request to
develop evidence. If the class agent or the agency in bad faith refuses or fails without
adequate explanation to respond fully and in timely fashion to a request made or
approved by the AJ for documents, records, comparative data, statistics, affidavits, or the
attendance of witnesses, and the information is solely in the control of one party, the AJ
may, in appropriate circumstances:
(1) draw an inference that the requested information would have reflected unfavorably on
the party refusing to provide it;
(2) consider the matters to which the requested information pertains to be established in
favor of the opposing party;
(3) exclude other evidence offered by the party failing to produce the requested
information; or
(4) take such other actions as deemed appropriate. 80
Both parties must provide all materials that they want the AJ to examine and any other
material that is requested. 81
1768 ----Discovery [SUPPLEMENT]
Regulations:
Footnotes
Footnote 79. 29 CFR 1613.608(b)(1), 1614.204(f)(2).
Footnote 80. 29 CFR 1613.608(b)(2), 1614.204(f)(2).
Footnote 81. 29 CFR 1613.608(b)(4), 1614.204(f)(4).
1769 Complaint resolution agreements

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At any time after a class complaint is accepted, it may be resolved by an agreement
between the agency and the class agent. 82 The terms of the resolution must be
reduced to writing, it must be signed by the agent and the agency head or a designee, and
a copy must be provided to the agent. 83 A resolution binds all class members. Within
30 days of the date of the notice of resolution, a class member may petition the EEO
director to vacate the resolution because it benefits only the class agent or is otherwise
not fair and reasonable. This petition will be processed in accordance with the procedures
for accepting or dismissing a class complaint. 84 On finding that the resolution is not
fair and reasonable, the AJ must recommend that the resolution be vacated and that the
original class agent be replaced by the petitioner or another class member who is eligible
to be the class agent during further processing of the class complaint. An agency's
decision to grant the petition must inform the former class agent or the petitioner of the
right to appeal the decision to the Office of Federal Operations and include EEOC Form
573, Notice of Appeal/Petition. 85
The pre-October 1, 1992 rules specifically provided that a resolution agreement must
state the terms of any corrective action and may include a finding on the discrimination
issue and an award of attorney's fees and costs. 86 Furthermore, if, for any reason not
attributable to the actions of the agent, representative, or class members, the agency does
not carry out or rescinds any action specified by the terms of the resolution, the agent has
the right to request that the agency reinstate the complaint for further processing from the
point processing ceased under the terms of the resolution. The agency's failure to
reinstate the complaint is grounds for an appeal to the EEOC. 87
1769 ----Complaint resolution agreements [SUPPLEMENT]
Regulations:
Footnotes
Footnote 82. 29 CFR 1613.609(b), 1614.204(g)(2).
Footnote 83. 29 CFR 1614.204(g)(2).
Footnote 84. 1765.
Footnote 85. 29 CFR 1614.204(g)(4).
Footnote 86. 29 CFR 1613.609(c).
Footnote 87. 29 CFR 1613.609(e).
1770 Hearings; findings and recommendations

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Following expiration of the period allowed for preparation of the case, the AJ will set a
date for a hearing. 88
After a hearing, the administrative judge will transmit the hearing record, findings and
analysis, and report of findings and recommended decision to the agency head. 89 The
class agent will be notified of the date on which the report of findings and
recommendations is forwarded. 90 Furthermore, the AJ must notify the agency of the
date on which the report of findings and recommendations was forwarded to the agency.
91
These procedures are the same for complaints filed before October 1, 1992, except that
there was no requirement to inform the agency of the date on which the report was
forwarded to it. 92
1770 ----Hearings; findings and recommendations [SUPPLEMENT]
Regulations:
Footnotes
Footnote 88. 29 CFR 1613.610, 1614.204(h).
Footnote 89. 29 CFR 1613.611(a), 1614.204(i)(1), (2).
Footnote 90. 29 CFR 1613.611(b), 1614.204(i)(3).
Footnote 91. 29 CFR 1614.204(i)(3).
Footnote 92. 29 CFR 1613.611(a)-(b).
1771 Issuance of agency decision

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Effective October 1, 1992, within 60 calendar days after receipt of an AJ's report of
findings and recommendations, the federal agency head must issue a written decision to
accept, reject, or modify the findings and recommendations. The decision must be
transmitted to the class agent or representative, along with copies of the hearing record
and the AJ's report. 93 If the agency's decision rejects or modifies the AJ's findings and
recommendations, it must contain specific and detailed reasons for the action. 94
If the agency does not issue a decision within 60 calendar days after receiving the AJ's
report of findings and recommendations, those findings and recommendations become
the final agency decision. The agency must transmit the final decision and hearing
record to the agent or representative within five calendar days of the expiration of the
60-day period. 95
The procedures for issuance of an agency decision on a class complaint were essentially
the same before October 1, 1992, except that the AJ's findings and recommendations
became the agency's final decision if the agency did not issue a decision within 30 days
of receiving them. 96 Also, they required the agency, once discrimination is found, to
advise the agent and the agent's representative that any request for attorney's fees must be
documented and submitted within 20 calendar days of receipt. 97
1771 ----Issuance of agency decision [SUPPLEMENT]
Regulations:
Footnotes
Footnote 93. 29 CFR 1614.204(j)(1), (2).
Footnote 94. 29 CFR 1614.204(j)(3).
Footnote 95. 29 CFR 1614.204(j)(4).
Footnote 96. 29 CFR 1613.612(b).
Footnote 97. 29 CFR 1613.612(c).
Obtaining attorney's fees and costs is discussed at 1755.
1772 Notice of decision to class members

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Since a final federal agency decision on a class complaint is binding on all class
members, 98 class members must be notified of the decision and any corrective action
within ten calendar days after the transmittal of the decision to the class agent, through
the same media employed to give notice of the existence of the class complaint. When
appropriate, the notice must include information concerning the rights of class members
to seek individual relief and of the procedures to be followed. 99

1772 ----Notice of decision to class members [SUPPLEMENT]
Regulations:
Footnotes
Footnote 98. 29 CFR 1613.612(f), 1614.204(j)(6).
Footnote 99. 29 CFR 1613.613, 1614.204(k).
1773 Submission of individual class members' claims

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Effective October 1, 1992, when discrimination is found and but for the discrimination, a
class member would have received employment or an employment benefit, the class
member may file a written claim with the head of the federal agency or the agency's
director of equal employment opportunity within 30 calendar days of notification of the
agency's decision. 1 The claim must include a specific, detailed showing that the
claimant is a class member who was affected by a personnel action or matter resulting
from the discriminatory policy or practice within not more than 45 calendar days
preceding the filing of the class complaint. 2 The 45-day time limit is not intended to
limit the two-year time period for which backpay can be recovered by a class member. 3
Before October 1, 1992, an individual class member had to submit a claim within 30
calendar days of notification of the agency's decision, 4 but classwide discrimination
could be found for as much as up to 135 calendar days preceding the filing of the class
complaint. 5
1773 ----Submission of individual class members' claims [SUPPLEMENT]
Regulations:
Footnotes
Footnote 1. 29 CFR 1614.204(l)(3).
Footnote 2. 29 CFR 1614.204(l)(3).

Footnote 4. 29 CFR 1613.614(b).
Footnote 5. 29 CFR 1613.614(c).
1774 Relief for class agent or individual class members

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Effective October 1, 1992, when discrimination is found on a classwide basis, the agency
must eliminate or modify the discriminatory employment policy or practice and provide
individual relief, including an award of attorney's fees and costs, to the agent in
accordance with the regulations. 6 This relief is also available when classwide
discrimination is not found, but it is found that the class agent is a victim of
discrimination. 7 The agency must issue a final decision on each individual claim for
relief within 90 days of its filing. That decision must include a notice of the right to file
an appeal or a civil action in accordance with the regulations and the applicable time
limits. 8 The relief may also be included by an administrative judge in the report of
findings and recommendations. 9
Under the rules in effect before October 1, 1992, an administrative judge's report of
findings and recommendations on individual claims was treated the same as a report of
findings and recommendations on the class complaint, in terms of when the agency must
decide to accept, reject, or modify the report. Similarly, the agency could issue an
independent final decision requiring any remedial action authorized by law, whether or
not there was a finding of discrimination. 10
1774 ----Relief for class agent or individual class members [SUPPLEMENT]
Regulations:
Footnotes
Footnote 6. 29 CFR 1614.204(l)(1).
Footnote 7. 29 CFR 1614.204(l)(2).
Footnote 8. 29 CFR 1614.204(l)(3).
Footnote 9. 29 CFR 1614.204(i)(1).

Footnote 10. 29 CFR 1613.614(f).
(2). Appeals to EEOC [1775-1778]
1775 Matters that may be appealed

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A class agent may appeal a final agency decision on a class complaint, including an
agency decision accepting or dismissing all or a portion of a class complaint, to the
EEOC's Office of Federal Operations. A class member may appeal a final agency
decision for individual relief under a class complaint to the Office. Both an agent and a
class member may appeal a final agency decision on a petition to vacate a complaint
resolution agreement to the Office. 11 Also, the class agent or individual claimant may
appeal an agency's alleged noncompliance with a settlement agreement, notice of final
action, or final agency decision. 12
1775 ----Matters that may be appealed [SUPPLEMENT]
Regulations:
Footnotes
Footnote 11. 29 CFR 1613.631(a), 1614.401(b).
Footnote 12. 29 CFR 1613.631(b), 1614.401(d).
1776 Time limitations for filing an appeal

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Effective October 1, 1992, an appeal filed to the EEOC's Office of Federal Operations
must be filed within 30 days of receipt of the federal agency's final decision. The 30-day
period begins to run from the receipt of the required documentation by the attorney, or if
the claimant is not represented by an attorney, from the receipt of the required
documentation by the complainant. 13
Before October 1, 1992, an appeal to the EEOC could be filed at any time up to 20
calendar days after receipt of the federal agency's final decision subject to extensions
allowed by regulation. 14 An appeal was deemed filed on the date it is postmarked, or,
in the absence of a postmark, on the date it was received by the EEOC's Office of Federal
Operations. 15
1776 ----Time limitations for filing an appeal [SUPPLEMENT]
Regulations:
Footnotes
Footnote 13. 29 CFR 1614.402.
Footnote 14. 29 CFR 1613.631(c).
Footnote 15. 29 CFR 1613.631(d).
1777 Review by EEOC

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On an appeal to the EEOC, the Office of Federal Operations reviews the complaint file
and all written statements and briefs from either party. The EEOC may supplement the
record by an exchange of letters or memoranda, investigation, remand to the agency, or
other proceedings. 16 Each party providing supplemental information must send a copy
of the information to the other party. 17 The EEOC must dismiss untimely appeals, or
an appeal as to which a civil action has been filed. 18
The EEOC's decision must be based on the preponderance of the evidence, include
appropriate remedies, and, where appropriate, interest, attorney's fees, or costs when
discrimination is found. The decision must state when it was issued, inform the
complainant of the right to file a civil action, and be sent to the complainant and the
agency by certified mail. 19
Observation: Before October 1, 1992, the EEOC's Office of Federal Operations

conducted a review based on the existing record to determine if the federal agency
decision was supported by substantial evidence and was in accord with applicable
laws, executive orders, or civil service regulations, rules, and instructions. 20
The EEOC's decision on appeal is final unless a reopening is requested. 21
1777 ----Review by EEOC [SUPPLEMENT]
Regulations:
Footnotes
Footnote 16. 29 CFR 1614.404(a).
Footnote 17. 29 CFR 1614.404(b).
Footnote 18. 29 CFR 1614.405(a).
Footnote 19. 29 CFR 1614.405(a).
Footnote 20. 29 CFR 1613.631(d).
Footnote 21. 1778.
1778 Request to reopen EEOC decision

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The EEOC commissioners may reopen and reconsider any previous decision by an EEOC
office either on their own motion or at the request of either party. 22
1778 ----Request to reopen EEOC decision [SUPPLEMENT]
Regulations:
Footnotes
Footnote 22. 29 CFR 1613.632, 1614.405(b).
e. Alternate Processing of Reprisal Claims [1779-1781]
1779 Reprisal charge as alternative to complaint

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After October 1, 1992, retaliation is prohibited for opposing any practice unlawful under
Title VII, the ADEA, the EPA, or the Rehabilitation Act, or for participating in any stage
of administrative or judicial proceedings under those statutes. 23 However, under the
regulations in effect since October 1, 1992, there are no separate, alternate procedures for
reprisal claims.
Until October 1, 1992, a complainant, representative, or witness, if a federal employee or
applicant for employment, could file an allegation of reprisal as a charge. 24 A reprisal
charge is an alternative to a discrimination complaint. It differs from a complaint in that
it merely provides an opportunity for an expedited administrative resolution of the
grievanceit does not provide a route to judicial review. 25
In the alternative, an individual complainant, 26 class agent, class member who
submitted an individual claim for relief, 27 their representatives, or a witness, if a
federal employee or applicant, could file a reprisal allegation as a complaint, and the
complaint will be processed and reviewed as an individual discrimination complaint. 28
Furthermore, an individual who filed a charge and is not satisfied with the results could
still file a complaint that may ultimately terminate in a civil action. 29
1779 ----Reprisal charge as alternative to complaint [SUPPLEMENT]
Regulations:
Footnotes
Footnote 23. 29 CFR 1614.101(b).
Footnote 24. 29 CFR 1613.262(a).
Footnote 25. Porter v Adams (1981, CA5) 639 F2d 273, 25 BNA FEP Cas 1107, 25 CCH
EPD 31629.
Footnote 26. 29 CFR 1613.261.
Footnote 27. 29 CFR 1613.607(a).

Footnote 28. 29 CFR 1613.262(a), 1613.607(b).
Footnote 29. Porter v Adams (1981, CA5) 639 F2d 273, 25 BNA FEP Cas 1107, 25 CCH
EPD 31629.
1780 Contents and filing of reprisal charge

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Until October 1, 1992, a reprisal charge had to be written and contain all pertinent facts.
It had to be filed with the head of the federal agency, the agency's director of equal
employment opportunity, the head of a field installation, an EEO officer, a Federal
Women's Program coordinator, or any other official designated by the agency, within 15
calendar days of the date of the action in question. 30
Caution: Under the regulations in effect since October 1, 1992, there are no
separate, alternate procedures for reprisal claims.
1780 ----Contents and filing of reprisal charge [SUPPLEMENT]
Regulations:
Footnotes
Footnote 30. 5 CFR 713.262(b)(1).
1781 Administrative processing of reprisal charge

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Until October 1, 1992, an agency had to complete its inquiry into a reprisal charge 15
calendar days after receiving the charge and provide the charging party with a copy of the
report of action taken. However, if the agency did not complete its inquiry within that
time, the charging party could submit a written statement with all pertinent facts to the
EEOC, and the EEOC would require the agency to take whatever action was appropriate.
31
If an individual complainant requests a hearing after completion of the investigation of an
individual discrimination complaint, and in connection with that complaint alleges
restraint, interference, coercion, discrimination, or reprisal, the AJ assigned to hold the
hearing may consider the allegation as an issue in the complaint at hand, or refer the
matter to the agency for further processing under the procedure (complaint or charge)
chosen by the complainant. 32
Caution: Under the regulations in effect since October 1, 1992, there are no
separate, alternate procedures for reprisal claims.
1781 ----Administrative processing of reprisal charge [SUPPLEMENT]
Regulations:
Footnotes
Footnote 31. 5 CFR 713.262(b)(1).
Footnote 32. 5 CFR 713.262(b)(2).
f. Complaints Appealable to MSPB [1782-1796]
(1). In General [1782-1784]
1782 Generally
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If a federal employee or applicant for employment has been affected by an adverse
agency action that may be appealed to the Merit Systems Protection Board (MSPB) and
the individual alleges that a basis for the action was discrimination prohibited by Title
VII, 33 the Equal Pay Act, 34 the Rehabilitation Act of 1973, 35 the Age
Discrimination in Employment Act (ADEA), 36 or any pertinent rule, regulation, or
policy directive (i.e., a "mixed" case), the individual may either appeal immediately to
the MSPB 37 or file a formal discrimination complaint with the federal agency.
In the latter case, the agency must resolve the matter within 120 days, 38 utilizing the
complaint procedures discussed previously. 39 If that option is chosen, the individual
may appeal the agency's decision on the complaint to the MSPB or seek judicial review.
40 Furthermore, if the agency does not act on the complaint within 120 days, the
individual may appeal the matter to the MSPB 41 or seek judicial review. 42
The MSPB may not continue administratively processing a claim after the claimant has
instituted a civil action on the claim. 43 The MSPB also may not entertain a claim on
which a state agency has made findings in a judicial capacity after giving the parties an
adequate opportunity to litigate, if the state's courts would give these findings preclusive
effect. Since MSPB has many of the procedural characteristics of a court, the same
subject matter preclusions to judicial jurisdiction should apply. 44 MSPB decisions are
also subject to review by the EEOC. 45
Regulations:
Case authorities:
Appellant could appeal directly to Board where he had filed formal complaints of
discrimination with agency's EEO office but it had not issued final decision within 120
days. Jones v Department of the Interior (1993, MSPB) 60 MSPR 134.
Appeal was not barred by election requirement for mixed cases where Board would
appropriately defer to EEOC's determination that appellant's prior Board appeal did not
constitute valid election because agency had not adequately notified her of election
requirement and consequences of such election. Peartree v United States Postal Serv.
(1995, MSPB) 66 MSPR 332.
Footnotes
Footnote 36. 29 USCS 631, 633a.
Footnote 40. 5 USCS 7702(a)(2); 29 CFR 1613.405(e)(4).

Footnote 42. 5 USCS 7702(e)(1)(A); 29 CFR 1613.405(e)(2)(ii).
Footnote 43. Daniels v Department of Army (1990, CA6) 1990 US App LEXIS 7048.
Footnote 44. Greene v Bowen (1988, ED Pa) 702 F Supp 1180, 49 BNA FEP Cas 189,
1783 Effect of filing with wrong agency

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If a federal employee must file an action, appeal, or petition and does so with the wrong
agency, the employee will be treated as having timely filed the matter as of the date it is
filed with the proper agency. 46
Footnotes
1784 Petition for appeal to MSPB

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A petition for appeal to the MSPB that raises issues of prohibited discrimination must
comply with the MSPB's general requirements for the contents of appeals petitions.
However, the petition must also state:
(1) that there was discrimination, and provide specific examples of how the appellant was
discriminated against; and
(2) whether the appellant has filed a discrimination complaint or grievance with his
agency or any other agency, the date of its filing, and any action taken. 47
Completion of the Merit Systems Protection Board Appeals Form, located in Appendix I
to 5 CFR Part 1201, constitutes compliance with the requirements regarding petition
contents. 48
Footnotes
Footnote 47. 5 CFR 1201.153(a).
Forms: Request to Merit Systems Protection Boardto reopen and review adverse
action setermination [5 CFR 752.203, 1201.115]. 10 Federal Procedural Forms, L
Ed, Government Officers and Employees 35:79.
Appeal to Merit Systems Protection Board (Optional Form 283). 10 Federal Procedural
Forms, L Ed, Government Officers and Employees 35:71.
Footnote 48. 5 CFR 1201.153(b).
(2). Time limits [1785-1788]
1785 Time limits for processing appeals

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MSPB decisions on the issue of discrimination and other issues presented on the appeal
must be made within:
120 days after the appeal is filed; 49
120 days after the appellant raised the issue of discrimination, if the issue was raised
after the petition was filed; 50
120 days after agency action is completed and the case returned to the MSPB, if an
issue of discrimination has been remanded to the agency. 51
If the MSPB does not decide the issues within the required 120 days, the aggrieved
individual may file a civil action. 52
Footnotes
Footnote 49. 5 USCS 7702(a)(1); 5 CFR 1201.156(a); see 1786.
Footnote 50. 5 CFR 1201.156(b); see 1787.
Footnote 51. 5 CFR 1201.156(c); see 1788.
Footnote 52. 5 USCS 7702(e)(1)(B).
Forms: Complaint in District CourtFor declaratory and injunctive reliefProper

procedure not followed in connection with performance rating and removal of
employee. 10 Federal Procedural Forms, L Ed, Government Officers and Employees
35:91.
1786 Time to file appeal

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If the federal employee or job applicant chooses to immediately appeal the federal
agency's adverse action to the MSPB, the appeal must be made within 20 days after the
effective date of the adverse action. 53
If the individual filed a formal discrimination complaint with the agency and now seeks
to appeal to the MSPB, the petition must be filed within 20 days after receipt of the
agency resolution or final decision on the discrimination issue. However, if the agency
has not resolved the matter or issued a final decision on the formal complaint within 120
days, the appellant may file a petition with the MSPB within one year after filing the
formal complaint with the agency. 54
If the appellant filed a grievance with the agency under its negotiated grievance
procedure, he may request the MSPB to review the final decision within 20 days after
receipt of the final decision. 55
1786 ----Time to file appeal [SUPPLEMENT]
Regulations:
5 CFR 1201.154(a), (b) were amended in 1993 and now provide that petitions for
appeals must be filed within 30 days after receipt of an agency decision.
Footnotes
Footnote 53. 5 CFR 1201.154(c).
Footnote 54. 5 CFR 1201.154(a).
Footnote 55. 5 CFR 1201.154(b).
Forms: Motionfor waiver of time limitsin request for extension of time to file
petition for review with MSPB. 10 Federal Procedural Forms, L Ed, Government
Officers and Employees 35:79.1.
Requestfor extension of timeto file petition for review with MSPB. 10 Federal
Procedural Forms, L Ed, Government Officers and Employees 35:79.2.
1787 Time to raise allegations not previously raised

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If the appellant did not know of the existence of a basis for an allegation of
discrimination at the time the appeal petition was filed, he may raise the allegation at any
time during the MSPB's consideration of the appeal. A discrimination issue may be
excluded from consideration only if the employer agency shows that its inclusion would
prejudice its rights and unduly delay the proceedings, or that the issue is not directly
related to the matter being appealed. If discrimination is excluded from appellate
consideration, it will be remanded to the agency for appropriate consideration. 56
Footnotes
Footnote 56. 5 CFR 1201.155(a).
1788 Time allowed on remand to agency

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If the parties agree in a statement for the record that a remand to the employer agency is
desirable, the presiding MSPB official may remand the discrimination issue to the agency
for consideration if doing so would be in the interest of justice. The remand order will
contain a time period, not exceeding 120 days, within which agency action must be
completed. During the time allowed on remand, the MSPB retains jurisdiction and the
adverse action appeal is held in abeyance. After the remand, the actions will be merged
and processed, and a decision will be issued within 120 days. 57
Footnotes
Footnote 57. 5 CFR 1201.155(c).
(3). MSPB Decision and Appeal of Decision [1789-1796]
1789 MSPB decision

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While the administrative law judge's initial MSPB determination must contain "findings
of fact and conclusions of law upon all the material issues of fact and law presented on
the record," 58 it need not contain a specific "findings of fact" heading or a numbered
listing of facts, but instead it can combine factual findings with legal conclusions as long
as the findings are clearly stated. 59
Any final decision of the MSPB will notify the appellant of his right either to petition the
EEOC to consider the MSPB's decision or to file a civil action. 60
1789 ----MSPB decision [SUPPLEMENT]
Case authorities:
Amendment broadening category of temporary employees to those eligible to appeal
adverse actions does not impliedly repeal contrary provisions in statutes under which
employees were hired, such as 20 USCS 241(a), which specifically deny appeal rights
even if employee otherwise fell within new definition of employee, since conflict
between generally applicable statute that covers broad range of activity and one which
addresses narrow category of activity is properly resolved by long-standing principle that
specific statute is not submerged by later-enacted general provision. Todd v Merit Sys.
Protection Bd. (1995, CA FC) 55 F3d 1574, reh den (1995, CA FC) 1995 US App LEXIS
17118.
Footnotes
Footnote 58. 5 USCS 1201.111(b)(1).
Footnote 59. Archuleta v Sullivan (1991, CA4) 1991 US App LEXIS 21744.
Footnote 60. 5 CFR 1201.158.
1790 Appealing the MSPB decision to the EEOC

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An appeal to the EEOC from an MSPB decision may be filed by individuals or their
representatives. 61 The petition should be filed by certified or registered mail, return
receipt requested, with the Office of Review and Appeals, EEOC, Washington, D.C.
20506. 62
The EEOC must determine within 30 days whether it will consider the appeal. 63 For
this purpose, the date of the appeal is the date on which the EEOC's Office of Review and
Appeals receives the petition. 64 The MSPB's decision is judicially reviewable as of the
date the EEOC determines not to consider it. 65 An EEOC determination not to
consider an MSPB decision may not be used as evidence with respect to any issue of
discrimination in any judicial proceeding concerning the issue. 66
The EEOC may not consider an appeal from an MSPB decision after the claimant has
instituted a civil action on the claim. 67
1790 ----Appealing the MSPB decision to the EEOC [SUPPLEMENT]
Regulations:
Footnotes
Footnote 61. 29 CFR 1613.414(a).
Forms: Appeals to EEOCOffice of Review and AppelasDenial od fiscrimination
complaint [29 CFR 1613.231]. 10 Federal Procedural Forms, L Ed, Government
Officers and Employees 35:80.
Footnote 62. 29 CFR 1613.414(b).
Footnote 64. 29 CFR 1613.416(b).
Footnote 67. Daniels v Department of Army (1990, CA6) 1990 US App LEXIS 7048.
1791 Filing appeals with EEOC

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To be timely, the appeal must be filed with the EEOC either within 30 days after receipt
of notice of the final MSPB decision or within 30 days after the initial decision of an
MSPB field office becomes final. 68 The date of filing is the date of mailing indicated
on the certified or registered mail return receipt. 69
The time limitation for appealing an MSPB decision to the EEOC is treated as a statute of
limitations subject to the equitable doctrines of tolling, estoppel, and waiver. Thus, the
EEOC has the authority to excuse a plaintiff's noncompliance with time limitations if
there is a legitimate reason for that determination. 70
1791 ----Filing appeals with EEOC [SUPPLEMENT]
Regulations:
Case authorities:
Board erred as matter of law by not considering timeliness of mixed case appeal pursuant
to regulation which specifically applies to mixed cases instead of regulation which would
have applied were it not mixed case; although both regulations provide similar 20-day
time limits, if appellant had not filed formal discrimination complaint with employing
agency, court could not apply regulation applicable to mixed case appeals without
making further factual findings such as whether appellant filed formal complaint with
VA, and case therefore had to be remanded. Whittington v Merit Sys. Protection Bd.
(1996, CA FC) 80 F3d 471, 70 BNA FEP Cas 726.
Footnotes
Footnote 68. 5 USCS 7702(b)(1); 29 CFR 1613.414(c).
Footnote 69. 29 CFR 1613.414(c).
Footnote 70. Joyner v Garrett (1990, ED Va) 751 F Supp 555, 58 BNA FEP Cas 1235, 56
CCH EPD 40689.
1792 Contents of appeal petition

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A petition to the EEOC appealing an MSPB decision must be written or typed. It can use
any format, including a simple letter format. 71 The petition must contain:
(1) the name and address of the appellant and his representative;
(2) a statement of the reasons why the appellant believes that the decision of the MSPB is
wholly or partially incorrect with regard to issues of prohibited discrimination;
(3) a copy of the MSPB's decision; and
(4) the signature of the individual and/or representative, if any. 72
1792 ----Contents of appeal petition [SUPPLEMENT]
Regulations:
Footnotes
Footnote 71. 29 CFR 1613.415(a).
Footnote 72. 29 CFR 1613.415(b).
1793 Application for interim relief

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The federal employee or job applicant may submit an application to the EEOC for
interim relief to mitigate any exceptional hardship he might otherwise incur as a result of
certification of the matter being appealed. The EEOC may issue any interim relief it
determines to be appropriate. However, it may not stay, or order any federal agency to
review on an interim basis, the action involving discrimination. 73
Footnotes
1794 EEOC decision

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If the EEOC accepts the appeal, it considers the record of the MSPB proceedings and on
that basis issues its decision in 60 days. 74 If the EEOC concurs in the MSPB's
decision, that decision may be judicially appealed. 75 Furthermore, if there is no

decision by the EEOC within 180 days after a petition for reconsideration has been filed
with the EEOC, the aggrieved individual may file a civil action. 76
Footnotes
Footnote 76. 5 USCS 7702(e)(1)(C).
1795 MSPB action on EEOC decision

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If the EEOC issues a written decision that differs from the MSPB's, the EEOC will refer
the matter back to the MSPB. 77 Within 30 days after receiving the EEOC's decision,
the MSPB must either wholly adopt the EEOC's decision or reaffirm its own initial
decision, with or without modifications. If the MSPB wholly adopts the EEOC's
decision, the MSPB's decision is judicially reviewable. 78 Furthermore, if there is no
reconsideration decision by the MSPB within 180 days after a petition for reconsideration
has been filed with the EEOC, the aggrieved individual may file a civil action. 79
While MSPB must defer to EEOC's interpretation of discrimination law, nothing
precludes MSPB from making factual findings on issues of employment discrimination
law. On the contrary, 5 USCS 7702(b)(5)(B) (footnote 6) envisions further MSPB
proceedings after its decision has been modified by EEOC. 80
Footnotes
35:91.
Discrimination in connection with promotion of agency employee. 10 Federal
Procedural Forms, L Ed, Government Officers and Employees 35:92.
Footnote 80. Lynch v Bennett (1987, DC Dist Col) 665 F Supp 62, 44 BNA FEP Cas
651, 45 CCH EPD 37742.
1796 Certification to special MSPB panel

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Following consideration of an EEOC decision that differed from its own, if the MSPB
reaffirms its initial decision, with or without modification, the matter will be certified to a
special panel, 81 consisting of an individual appointed by the president, one member of
the MSPB, and one member of the EEOC. 82
Within 45 days after the matter has been certified, the special panel must decide the
issues in dispute and issue a final decision. 83 The complainant and the employing
agency have the right to appear before the panel to present oral and written arguments. 84
The special panel's final decision is judicially reviewable. 85 Furthermore, if there is no
decision by the special panel within 180 days after a petition for reconsideration has been
filed with the EEOC, the aggrieved individual may file a civil action. 86
Footnotes
35:91.
Discrimination in connection with promotion of agency employee. 10 Federal
9. Immigration Reform and Control Act Proceedings [1797-1824]
a. Unfair Immigration-Related Employment Practices Proceedings, In General

[1797-1806]
1797 Generally; filing a charge

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The Immigration Reform and Control Act (IRCA) amendments to the Immigration and
Nationality Act authorize separate administrative proceedings to enforce its unauthorized
alien employment provisions and related sanctions and its discrimination provisions. 87
Observation: IRCA hearings 88 are conducted in accordance with the requirements

of the Administrative Procedure Act (5 USCS 554). 89
Any individual who alleges direct harm by an unfair immigration-related employment
practice may file a charge with a Special Counsel for Immigration-Related Unfair
Employment Practices, within the Justice Department. 90 Charges may also be filed by
individuals or private organizations authorized to act on behalf of such a person.
Any Immigration and Naturalization Service (INS) officer persuaded that a prohibited
employment practice has occurred or continues to occur may also file a charge. 91
1797 ----Generally; filing a charge [SUPPLEMENT]
ALR Fed 381.
Footnotes
Footnote 88. 1816-1823.
Footnote 89. 8 USCS 1324a(e)(3)(B).
Footnote 91. 8 USCS 1324b(b)(1); 28 CFR 44.300(a)(2).
1798 Overlap with EEOC charge

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Even where the facts would support charges under both IRCA and Title VII, overlapping
jurisdiction of these charges by the Special Counsel and the EEOC is not allowed. Thus,
only where a charge that was filed with the EEOC has been dismissed for being outside
the scope of its enabling legislation and regulations may another charge be filed with the
Special Counsel based on the same facts. 92
Footnotes
For a discussion of EEOC proceedings under Title VII, see 1232 et seq.
1799 Format of charge

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An IRCA discrimination charge must be both written and under oath or affirmation. 93
The charge must be signed by the charging party. Where the charging party is other than
the injured party or an INS officer, the charge must indicate that the charging party is
authorized by the injured party to file the charge. 94
Footnotes
Footnote 94. 28 CFR 44.101(a)(10).
1800 Contents of charge

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An IRCA discrimination charge must contain:
(1) the charging party'sand, where different, the injured party'sname, address, and
telephone number; 95
(2) the name and address of the person being charged (the respondent); 96
(3) a description of the circumstances, place, and date of the alleged unfair
immigration-related employment practice; 97
(4) an indication of whether the alleged discrimination is based on national origin,
citizenship status, or both; 98
(5) the injured party's status as a U.S. citizen, U.S. national, or alien authorized to work
in the United States; 99
(6) where known, the number of people the respondent employed on the date of the
alleged discrimination; 1
(7) an indication whether an EEOC charge based on the same facts has been filed; 2 and
(8) an authorization allowing the Special Counsel to reveal the injured or charging party's
identities when necessary. 3
If the charging party is an authorized alien, the charge must also indicate whether the
injured party has been lawfully admitted for permanent residence, granted the status of
lawful admission for temporary residence, admitted as a refugee, or granted asylum. 4
It shall also state whether the party has applied for naturalization and the date of
application, 5 and the injured party's alien registration number and date of birth. 6
If a charging party's statements are not sufficient to constitute a charge, the Special
Counsel will give notice that additional information is needed. 7
1800 ----Contents of charge [SUPPLEMENT]
Regulations:
As amended in 1993, 28 CFR 44.101(a)(5) requires an indication whether the basis of
the alleged discrimination is (1) national origin, citizenship status, or both, or (2)
intimidation or retaliation, or documentation abuses.
Footnotes
Footnote 95. 28 CFR 44.101(a)(1), (2).
Footnote 96. 28 CFR 44.101(a)(3).
Footnote 97. 28 CFR 44.101(a)(4).
Footnote 98. 28 CFR 44.101(a)(5).
Footnote 99. 28 CFR 44.101(a)(6).

Footnote 1. 28 CFR 44.101(a)(9).
Footnote 2. 28 CFR 44.101(a)(11).
Footnote 3. 28 CFR 44.101(a)(12).
Footnote 4. 28 CFR 44.101(a)(7)(i).
Footnote 5. 28 CFR 44.101(a)(7)(ii).
Footnote 6. 28 CFR 44.101(a)(8).
Footnote 7. 28 CFR 44.301(c)(1).
1801 Time and place for filing a charge

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Discrimination charges must be filed within 180 days of the alleged unfair
immigration-related employment practice. 8 A charge will be considered filed on the
date it is postmarked when determining timeliness. 9
If a filing contained inadequate information, 10 it will be considered a filed charge once
adequate written information has been received. 11 However, even where a submission
is inadequate, the Special Counsel may consider it as a filed charge when received and
obtain the required additional information while the charge is investigated. 12
A charge will be dismissed with prejudice if received beyond 180 days after the alleged
discrimination. 13 To be timely, initially inadequate charges originally must have been
filed within 180 days of the discriminatory practice and any additional information must
be submitted in writing to the Special Counsel either within the 180-day period or within
45 days of receipt of the Special Counsel's notice, whichever is later. 14 The EEOC and
the Office of Special Counsel have agreed that if charges are timely filed, but with the
wrong agency, they will be considered timely filed by the correct agency if the issue of
timeliness should arise. 15
Observation: Unlike charges under Title VII, IRCA provides no deferral jurisdiction
to a state or local agency and, therefore, no additional time is available under the
regulations for filing a charge.
Charges may be either mailed or personally delivered. If mailed, they should be sent to
Office of the Special Counsel for Immigration-Related Unfair Employment Practices,
P.O. Box 65490, Washington, DC 20035-5490. Also, charges may be delivered to the
Special Counsel's office at 1100 Connecticut Avenue, NW, Suite 800, Washington, DC
20036. 16
1801 ----Time and place for filing a charge [SUPPLEMENT]
Regulations:
As of 1993, the address to which a charge may be mailed is Office of Special Counsel for
Immigration-Related Unfair Employment Practices, PO Box 27728, Washington, DC
20038-7728. 28 CFR 44.300(c)(1). The Office of Special Counsel delivery address is
1425 New York Avenue NW, Suite 9000, Washington, DC 20005.
Footnotes
Footnote 8. 8 USCS 1324b(d)(3).
Footnote 10. 1800.
Footnote 11. 28 CFR 44.301(c)(1).
Footnote 12. 28 CFR 44.301(c)(2).
Footnote 13. 28 CFR 44.301(d)(1).
Footnote 14. 28 CFR 44.301(d)(2).
Footnote 15. 54 Fed Reg. 32499, 8/8/89.
1802 Notice to charging party

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The charging party must receive notice of the Special Counsel's receipt of either his
charge or a submission that, although inadequate, it will be considered a charge as of that
date, while additional information will be accumulated during its investigation. 17 This
notice must indicate the date when the charge was received. Also, it must inform any
charging party besides an INS officer that a complaint may be filed before an
administrative law judge within 120 days after the charge was received if the Special
Counsel fails to file such a complaint first. The last date when such a complaint may be
filed will be included in the notice. 18
Footnotes
1803 Notice to respondent

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Notice of a charge being filed must be served on a respondent by certified mail within 10
days of the date that the charge was received by the Special Counsel. This notice must
include the date, place, and circumstances of the alleged discriminatory practices. 19
Footnotes
1804 Special Counsel's power to act on own initiative

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The Special Counsel may initiate investigations of unfair immigration-related
employment practices on his own. Where reasonable cause exists to believe that an
unfair immigration-related employment practice has occurred, the Special Counsel may
file a complaint with an ALJ. However, any such complaint still must be filed within 180
days of the alleged unfair immigration-related employment practice. 20
The Special Counsel may establish regional offices, where necessary, after consulting
with the Attorney General. 21
Footnotes
Footnote 20. 8 USCS 1324b(d)(1), (3).
Footnote 21. 8 USCS 1324b(c)(4).
1805 Investigatory powers

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The Special Counsel has authority to issue interrogatories and to request the production
of documents and admissions. 22 In addition, respondents must permit the Special
Counsel "reasonable access" to examine any person or entity being investigated. This
includes access during "normal business hours" to the respondent's books, records,
accounts, and other information sources. 23
Footnotes
1806 Time period for investigations

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The Special Counsel must conduct an investigation of a charge and make a determination
whether to file a complaint before an administrative law judge (ALJ) within 120 days of
receiving the charge. 24
Footnotes
b. ALJ Hearings [1807-1824]
1807 Scope of rules of practice before the ALJ

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The Federal Rules of Civil Procedure act as general guidelines in proceedings before an
Administrarive Law Judge (ALJ) where no statute, executive order, or regulation

otherwise covers the situation. 25
Footnotes
1808 Party to complaint

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Complaints of unfair immigration-related employment practices may be filed with a
Justice Department ALJ by the Special Counsel, 26 or, if it fails to do so, by any
charging party other than an Immigration and Naturalization Service (INS) officer. Such
a complaint may be filed either where the Special Counsel has failed to issue a letter of
determination or where a determination of "no reasonable cause" has been issued with
notice that the Special Counsel will not bring a complaint. 27
Anyone who has filed a charge with the Special Counsel regarding an unfair
immigration-related employment practice is a party to any complaint before an ALJ and
any subsequent appeal regarding such practice. The ALJ has discretion to permit any
other person to intervene and give testimony. 28
Footnotes
Footnote 28. 8 USCS 1324b(e)(3).
1809 Contents of complaint

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An IRCA discrimination complaint is a written submission based on the charge
previously filed with the Special Counsel 29 and which is then filed with an ALJ by an
appropriate 30 party. 31 While a complaint must allege the same unfair
immigration-related employment practice alleged in the charge, the charge and complaint
need not be identical in all respects. Therefore, new information may be added. 32
Complaints must contain a clear and concise statement of the facts regarding each alleged
violation 33 and certain administrative records must be attached to the complaint. 34
Illegible documents are unacceptable, 35 and the documents must be in English or, if in
a foreign language, they must be accompanied by a certified translation. 36
Footnotes
Footnote 29. 1800.
Footnote 30. 1808.
Footnote 33. 28 CFR 68.6(b)(3).
Footnote 34. 28 CFR 68.6(b)(5).
1810 Time limitations on complaints

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A complaint may be filed directly before an ALJ either immediately within 90 days of
receiving a no reasonable cause determination after the end of the 120-day investigative
period. 37 Effective November 29, 1990, the Special Counsel's failure to file a
complaint within the 120-day period does not affect his right to investigate the charge or
to bring a complaint during the 90-day period. 38
Provided a charging party has not filed a complaint, the Special Counsel may file one
within the 90-day filing period, even after the 120-day investigative period has ended. 39
Furthermore, the Special Counsel may seek intervention at any time in any ALJ
proceeding brought by a charging party. 40
The time period for filing a complaint starts the day after the activity in question and
includes the last day of that period other than a Saturday, Sunday, or federal legal
holiday. In the latter situations, the next business day is included in the time period. 41
Footnotes

Footnote 39. 28 CFR 44.303(d)(1).
Footnote 40. 28 CFR 44.303(d)(2).
1811 Pleadings as considered filed

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To be considered filed, pleadings must be received by the ALJ or the Chief
Administrative Hearing Officer's office. 42 Service of pleadings, besides complaints, is
accomplished when they are mailed. However, where a pleading has been served by mail
that requires a response, five days are added to the response period. 43
Footnotes
1812 Notice of time and place of hearing

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An ALJ may issue and have served both a complaint and notice of hearing. 44 Service
is made by delivering a copy to a party or his partner, the officer or registered agent for
service of process of a corporate party, or to a party's attorney of record, by leaving a
copy at a party's principal office, place of residence, or residence, or by mailing to the
last known address of the individual, partner, officer, or attorney. 45 Service of the
complaint and notice of hearing are completed when they are received by the addressee.
46 The ALJ notifies the parties of a date, time, and place set for the hearing or
prehearing conference or both, within 30 days of receiving the respondent's answer to the
complaint. 47
A hearing may not be scheduled less than five days after service of the complaint. 48
The hearing must be held near the residence of the person or entity, or near the place
where the alleged violation occurred. 49 In selecting the place of the hearing, the ALJ
considers the convenience of the parties and witnesses. 50 On the complainant's
motion, the ALJ has the discretion to amend any complaint at any time before a final
order has been issued. 51
1812 ----Notice of time and place of hearing [SUPPLEMENT]
ALR Fed 381.
Regulations:
28 CFR 68.3(a)-(c) have been redesignated as 28 CFR 68.3(a)(1)-(3). 28 CFR
68.3(d) has been redesignated as 28 CFR 68.3(b). In 1992 a new 28 CFR 68.3(c)
was added and provides that where the Office of Chief Administrative Hearing Officer or
ALJ encounter difficulty perfecting service, either may direct that a party execute service
of process.
Footnotes
Footnote 45. 28 CFR 68.3(a)-(c).
See 1813 as to responding to a complaint.
Footnote 51. 8 USCS 1324a(e)(3)(A), 1324b(e)(1).
1813 Responding to complaint

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The individual against whom a complaint has been filed has the right to file an answer to
the original or amended complaint, to appear in person or in some other fashion, and to
give testimony when and where scheduled in the complaint. 52 An answer must be
filed within 30 days after a complaint has been served. 53 Failure to file an answer on a
timely basis acts as a waiver of a respondent's right to appear and contest the allegations.
An ALJ may enter a default judgment in such an instance. 54
An answer must include an explicit response admitting, denying, or alleging a lack of
sufficient information to do either regarding each and every allegation. Otherwise,
allegations that are not expressly denied will be considered admitted. Also, an answer
must contain a statement of facts to support each affirmative defense. 55
Footnotes
1814 Right to representation

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While parties may be represented by a qualified attorney, 56 they also may appear
personally and participate in a hearing. A person acting in a representative capacity may
be required by the ALJ to show his authority to act in this capacity. 57 The withdrawal
or substitution of an attorney may be permitted by the ALJ on written motion. 58
However, intervenors may only participate to the extent permitted by the ALJ. 59 Also,
witnesses testifying because compelled by a subpoena may be represented by counsel 60
as may the Department of Justice. 61
Although legal counsel is permitted, the Chief Administrative Hearing Officer's office
does not have the authority to appoint counsel. 62
Observation: While the Chief Administrative Hearing Officer's office is unable to

appoint counsel, it is not prohibited from referring parties to an attorney.
Caution: Despite any right to representation, the ALJ may exclude parties,
witnesses, and their representatives from the proceedings if they fail to comply with the
appropriate standards of conduct. 63
Footnotes
Footnote 56. 28 CFR 68.31(b)(1).

Footnote 57. 28 CFR 68.31(b)(6).
Footnote 60. 28 CFR 68.31(b)(2).
Footnote 61. 28 CFR 68.31(b)(3).
Footnote 63. 1821.
1815 Waiver of right to appear

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The ALJ does not have to provide notice and conduct an oral hearing where all of the
parties have waived their rights to appear, to present evidence, or to argue. This waiver
must be in writing and filed with the ALJ or the Chief Administrative Hearing Officer. If
the right to appear has been waived, the ALJ creates the record from the pleadings and
written evidence that the parties have submitted. 64
However, absent a written waiver or a showing of good cause, either within ten days after
the time for hearing or prior to the date for hearing, the failure of a party or his
representative to appear may act as an abandonment of the request for a hearing. A
hearing request can be dismissed when it has been abandoned. A party is deemed to have
abandoned a request for hearing if neither the party nor his representative appears at the
time and place fixed for the hearing and does not show good cause prior to the hearing as
to why he or his representative could not appear, or does not show good cause for a
failure to appear within ten days after the time of the hearing. 65 Where a party has
failed to appear without good cause, a default decision with prejudice may be entered
against that nonappearing party. 66
Footnotes
1816 Conduct of hearings

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Hearings are conducted before administrative law judges (ALJs) who are designated by
the Attorney General as having special employment discrimination training. Where
possible, such judges will only consider unfair immigration-related employment practices
cases. 67
As much as practical and in keeping with the convenience of the parties, hearings are
expected to proceed with "reasonable speed." 68 The rules of practice for these
hearings are set up to prevent undue delay as much as possible. For instance,
continuances are limited to cases involving good cause, such as a prior judicial
commitment or undue hardship. 69 Absent good cause, a request for a continuance must
be filed at least 14 days before the hearing date 70 and, must be in writing and served on
all parties. 71
To expedite proceedings and narrow the issues to be adjudicated, the rules of practice
also provide for prehearing statements, 72 prehearing conferences, 73 consent findings
or dismissal, 74 consolidation of hearings regarding the same or substantially similar
evidence, 75 stipulations of fact, 76 and motions for summary decision. 77
The dismissal of an action by consent of the parties is subject to the ALJ's approval. 78
1816 ----Conduct of hearings [SUPPLEMENT]
Regulations:
28 CFR 68.25(a), 68.25(b), and 68.25(c) should read 28 CFR 68.27(a),
68.27(b), and 68.27(c).
Footnotes

Footnote 78. 28 CFR 68.12(a)(2).
1817 Powers of ALJ; generally

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The ALJ has the authority to obtain reasonable access to examine the evidence of anyone
being investigated and may issue subpoenas to compel witnesses to attend and order the
evidence to be produced. 79 The ALJ may take testimony that must be reduced to
writing and, on notice, has the discretion to take additional testimony or to hear
argument. 80 The ALJ has all the powers needed to conduct a fair and impartial
hearing. 81
Disobedience of the ALJ's authority may be remedied through that ALJ's request for
relief to the appropriate federal district court. 82
1817 ----Powers of ALJ; generally [SUPPLEMENT]
Regulations:
28 CFR 68.26(a), and 68.26(b) should read 28 CFR 68.28(a), and 68.28(b).
Footnotes
Footnote 79. 8 USCS 1324a(e)(2), 1324b(f)(2).
Footnote 80. 8 USCS 1324b(f)(1).
1818 Discovery
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Many methods are available both to obtain and to present evidence to develop a record.
For instance, discovery is available by:
written interrogatories to parties; 83 production of documents and things; 84 written
requests for admission; 85 and depositions. 86 Also, the ALJ may issued subpoenas
either prior to or subsequent to the filing of a complaint. 87
A failure to respond completely or to object appropriately to a discovery request can
result in a motion to compel a response and sanctions. 88
Footnotes
1819 Admitting and protecting evidence

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All relevant material and reliable evidence is admissible at a hearing, using the Federal
Rules of Evidence as a general guide. 89 Even depositions may be admissible in certain
respects. 90 However, the ALJ may limit the number of witnesses and the amount of
cross examination so as not to burden the record unduly. Some flexibility exists with
respect to allowing otherwise material and relevant evidence which is not the "best"
evidence. 91 Although objections to admissions or exclusions of evidence must be made
and ruled on during the hearing, 92 formal exceptions to the ALJ's rulings are
unnecessary. 93
Protection exists for evidence that is privileged or contains classified or sensitive
material. 94 This can be particularly important, since hearings are open to the public.
95 However, the ALJ may close a hearing when it is in the best interests of the parties
or public. 96
Footnotes
1820 Making a record

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A verbatim written record that includes all the evidence relied upon by the ALJ for his
decision must be kept, except in cases that are terminated through consent or settlement
orders. 97 Exhibits are also incorporated into the record. Transcripts may be obtained
for a fee. 98
Footnotes
Footnote 97. 1816.
1821 Limits on participation and communication

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Due process is preserved under the procedural rules for hearings through various means.
Other than Executive Office for Immigration Review employees, ex parte
communications regarding facts and issues with the ALJ are prohibited.
Communications, however, simply to schedule hearings or request extensions of time are
not considered ex parte communications, but all other parties still have to be notified of
such requests and given an opportunity to respond to them. 99 Disregard of the
prohibition against ex parte communications may result in sanctions, including an
adverse ruling regarding the subject of the communication or its exclusion from the
proceedings. 1
Furthermore, while an amicus curiae brief may be filed with the ALJ's permission, an
amicus curiae is not permitted to participate in the hearing at all. 2
Also, federal employees or agents who perform investigative or prosecutorial functions
regarding these proceedings are not permitted to participate in deciding them, or one that
is factually related, and may only advise the ALJ as a witness or counsel. 3
Caution: Parties, witnesses, and their representatives may be excluded by the ALJ if
they refuse to comply with his rules and directions. Although attorneys who are
suspended or barred from participating may appeal that decision, the appeal will not
stop or delay the hearing other than to enable the party to obtain another representative.
4
Footnotes
1822 Closing the hearing record

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When a hearing has been held, the record is closed when the hearing concludes unless the
ALJ has kept it open. 5
Should a hearing be waived, the final date for the receipt of the parties' submissions is the
date the record closes. 6

Once the record is closed, any party who seeks to add evidence to it must show that the
evidence had not been readily available before the record was closed. However, motions
for statutory attorney's fees and approved transcript corrections may be added to the
record after it has closed. 7 Should documents be submitted after the hearing has ended,
the ALJ decides whether he will receive these into evidence. 8
Footnotes
1823 Final orders following a hearing

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After a hearing where an ALJ has determined by a preponderance of the evidence that the
respondent has violated the IRCA, he must state his findings of facts and issue and serve
on the respondent a final order that includes the appropriate administrative sanctions. 9
The final order must include a provision that the respondent will cease and desist from
the practice at issue and may also include any other remedy available under the statute.
10 Furthermore, should the ALJ find, based on the preponderance of the evidence, that
the respondent has not engaged and is not engaging in the unfair immigration-related
employment practice alleged, the judge must state his findings of fact and then issue an
order dismissing the complaint. 11
Footnotes
Footnote 9. 8 USCS 1324b(g)(1), (2).
Footnote 11. 8 USCS 1324b(g)(3).
1824 Administrative review of final orders
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Within 30 days of the ALJ's decision, the Attorney General may modify or vacate the
decision, in which case the Attorney General's decision becomes the final order. IRCA
prohibits the Attorney General from delegating this review authority to any entity having
review authority over immigration-related matters. 12 This review will be conducted by
the Chief Administrative Hearing Officer if a written request is filed within five days of
the ALJ decision. 13 The Chief Administrative Hearing Officer may review an ALJ's
award under the Equal Access to Justice Act of attorney's fees incurred during an
adversarial hearing under IRCA, applying a "de novo" standard of review. 14
Unlike cases involving the legal employment verification of alien status, the Chief
Administrative Hearing Officer has no authority to review an ALJ's decision in
immigration-related unfair employment practices proceedings. In such cases, only
judicial review is available. 15
1824 ----Administrative review of final orders [SUPPLEMENT]
ALR Fed 381.
Footnotes
Footnote 12. 8 USCS 1324a(e)(7).
Footnote 14. Mester Mfg. Co. v INS (1990, CA9) 900 F2d 201.
For a discussion of the judicial review and enforcement of final orders issued by either an
ALJ or the Attorney General, see 2039 et seq.
10. Apprenticeship Program Registration Proceedings [1825-1895]
a. In General [1825]
1825 Generally
View Entire Section

The National Apprenticeship Act of 1937 gives the Department of Labor (DOL) the
authority to (1) formulate and promote labor standards in order to safeguard the welfare
of apprentices, (2) include these standards in apprenticeship contracts, (3) formulate
apprenticeship programs, and (4) establish cooperative relationships between the
Secretary of Labor and state apprenticeship agencies. 16
State aspects: DOL may recognize a state apprenticeship agency or council, thereby
vesting that body with the authority to determine whether an apprenticeship program
applicant is eligible for registration. 17
Under this authority the DOL's Bureau of Apprenticeship and Training (BAT) has issued
regulations for registering and deregistering apprenticeship programs, 18 and for
meeting the standards for such programs. 19
Any person seeking information concerning apprenticeship program procedures may
contact the Deputy Administrator, Bureau of Apprenticeship and Training, Employment
and Training Administration, Room 5000, Patrick Henry Building, Washington, D.C.
20213. 20
Footnotes
Footnote 16. 29 USCS 50-50b.
State programs and their processing procedures are discussed in the Employment
Coordinator at EP-33,400 et seq. A discussion of the DOL procedures for recognizing
a state apprenticeship program appears in the Employment Coordinator at EP-35,050
et seq.
Footnote 18. 29 CFR 29.4, discussed at 1826 et seq.
b. Registration Procedures [1826-1830]
1826 Registration proposal

View Entire Section

If employees have no collective bargaining agent, an employer or group of employers
may propose the registration of an apprenticeship program by the DOL, or by a
recognized state apprenticeship agency. 21
An employer may also propose that an apprenticeship program be registered when there
is a collective bargaining agreement providing for union participation in the operation of
a program. However, if the union participation is exercised, the employer must provide
written acknowledgment of the union's agreement, or lack of objection to the program,
before the program may be officially registered. If the union declines to participate, or
fails to provide written acknowledgment, the employer must simultaneously furnish the
union with a copy of (1) the registration application, and (2) the apprenticeship program
it proposes to register. The union then has not less than 30, nor more than 60 days to
provide any comment before final action is taken on the registration application. 22
Footnotes
As to the relationship between federal and state apprenticeship agencies, see 1826.
1827 BAT proceedings

View Entire Section
If a state apprenticeship agency or council does not exist or has not been recognized, 23
registration may be requested from the Bureau of Apprenticeship and Training (BAT). 24
If a state agency approved a program but is subsequently derecognized, the program
sponsors are required to request registration with the BAT within 30 days after the
Secretary of Labor's order withdrawing the recognition. 25 Contingent registration may
then be granted after finding that an apprenticeship program is operated in accordance
with applicable regulations, and permanent registration will be granted or denied within
30 days of the grant of contingent registration. 26 The sponsor will be notified in
writing when contingent registration is revoked or when permanent registration is
granted. 27
Failure of the sponsors to request registration after a state agency is derecognized, or
after denial of a request for registration, will result in withdrawal of registration of the
apprenticeship program for all federal purposes. 28
Because a registration procedure is for the benefit of apprentices, an employer proposing
that an apprenticeship program be registered has no standing to challenge the DOL's

decision if it refuses to approve and register the program. 29
Footnotes
Footnote 23. 1825.
Footnote 24. 29 CFR 29.12(e)(2).
Footnote 29. Gregory Electric Co. v United States Department of Labor (1967, DC SC)
268 F Supp 987, 65 BNA LRRM 2436.
1828 Certificate of registration

View Entire Section
If the Bureau of Apprenticeship and Training approves an apprenticeship program, it will
issue a certificate of registration. If the program is approved by a recognized state
apprenticeship agency or council, 30 it will issue a similar document indicating that the
program meets the standards for all federal purposes. 31
Footnotes
Footnote 30. 1825.
1829 Post-certificate modifications to program

View Entire Section
Once an apprenticeship program has received a certificate of registration or similar
document, 32 any changes or modifications of it must also be submitted for approval. If

approved, they are recorded as an amendment to the program. 33
Footnotes
Footnote 32. 1828.
1830 Registration of apprentices

View Entire Section
Apprentices who are training under an apprenticeship program registered with the DOL,
or with a recognized state apprenticeship agency, must be individually registered. 34
Apprentices may individually register by filing copies of individual apprenticeship
agreements or, subject to the approval of DOL, by filing a master copy of the agreement,
along with a listing of the name and other required data of each individual when
apprenticed. 35
If probationary employees are not individually registered within 90 days of employment,
their names must be submitted to the Bureau, or approving state agency for certification,
in order to establish them as eligible for probationary employment. 36
Footnotes
As to the relationship between federal and state apprenticeship agencies, see 1825.
c. Deregistration Procedures [1831-1895]
1831 Cancellation by program sponsor

View Entire Section

The sponsor of an apprenticeship program registered under the National Apprenticeship
Act of 1937 may request cancellation of the registration. 37 The sponsor must, within
15 days of written acknowledgment of the request by the Bureau of Apprenticeship and
Training of the Department of Labor, notify apprentices in the program of the
cancellation. 38
Footnotes
Footnote 38. 29 CFR 29.7(a)(2).
1832 Deregistration for cause; notice of proposed action

View Entire Section
The Bureau of Apprenticeship and Training (BAT) may deregister an apprenticeship
program for failure to conduct the program in accordance with registered provisions or
with the regulations, 39 or for violation of EEO requirements. 40
In deregistration proceedings other than those involving equal opportunity violations, the
deregistration officer must provide the sponsor of the program with a written notice of
the proposed deregistration, 41 sent by registered or certified mail with return receipt
requested, stating the shortcomings present and remedies required, and stating that a
determination of reasonable cause for deregistration will be made unless corrective action
is taken within 30 days. 42 The sponsor may request, for good cause, a 30-day
extension of this period. 43 If the sponsor fails to take corrective action within the
allotted time, however, the deregistration officer will send further notice, by registered or
certified mail with return receipt requested, citing the applicable subsection of the
regulations, and stating that deficiencies were called to the sponsor's attention but not
corrected, that a determination of reasonable cause has been made, and that the program
will be deregistered unless, within 15 days of the notice, the sponsor requests a hearing.
44 If no hearing is requested, the BAT will make a final order on the basis of the
record. 45
Footnotes
Footnote 39. 29 CFR 29.7(b)(1).
Footnote 41. 29 CFR 29.7(b)(2).
Footnote 42. 29 CFR 29.7(b)(3).

Footnote 43. 29 CFR 29.7(b)(4).
Footnote 44. 29 CFR 29.7(b)(5).
Footnote 45. 29 CFR 29.7(b)(6).
1833 Hearings
View Entire Section
The sponsor of a challenged apprenticeship program must request a hearing within 15
days of receipt of a notice of reasonable cause for deregistration. 46 A hearing officer
designated by the DOL Secretary will give notice of the hearing by registered mail with
return receipt requested to the sponsor, stating a reasonable time and place for the
hearing, the regulations involved, and the matters forming the basis of the hearing. 47
Hearings are informally conducted, with each party having the right to counsel and a fair
opportunity to present his case, including any cross-examination that may be appropriate.
48
Footnotes
1834 Deregistration decision

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If the Secretary of Labor orders deregistration, he must give public notice of the order
and must notify the sponsor. 49 The sponsor is required to notify apprentices in the
program of its deregistration within 15 days of the effective date of the order. 50
Despite a finding of reasonable cause for deregistration, the Secretary may at his
discretion allow a sponsor reasonable time voluntarily to take corrective action. 51
Footnotes
Footnote 49. 29 CFR 29.7(b)(8).
Footnote 50. 29 CFR 29.7(b)(9).
Footnote 51. 29 CFR 29.(b)(8).
1835 Reinstatement
View Entire Section
A program may be reinstated upon a showing that it is being operated in accordance with
the regulations. Sponsors seeking reinstatement should present evidence of compliance
to the Administrator of Apprenticeship and Training of the Department of Labor if the
sponsor did not request a hearing, or to the Secretary of Labor if a hearing was held. 52
Footnotes
11. Employee Polygraph Protection Act Proceedings [1836-1854]
1836 Generally
View Entire Section
The Employee Polygraph Protection Act (EPPA), 53 which regulates the use of
polygraphs and lie detector tests in the private sector, is enforced by the Secretary of
Labor, 54 who may be represented by the Solicitor of Labor in any administrative
hearings brought under the Act. 55 Primary enforcement responsibility for the EPPA
has been given to the DOL's Wage and Hour Division within the Employment Standards
Administration. 56
Footnotes
Footnote 53. 29 USCS 2001 et seq., the substantive provisions of which are
discussed, generally, at 998 et seq.
1837 Notice preparation and distribution

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The EPPA requires the Secretary of Labor to prepare, have printed, and distribute a
notice setting forth excerpts from, or summaries of, the pertinent provisions of the EPPA.
57
Footnotes
Footnote 57. 29 USCS 2003, discussed at 1955.discussed at 2.
1838 Cooperation and technical assistance

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The Secretary of Labor must cooperate with regional, state, local, and other agencies, and
must cooperate with and furnish technical assistance to employers, labor organizations,
and employment agencies, to aid in effectuating the purposes of the EPPA. 58
Footnotes
1839 Investigations, inspections, and record keeping

View Entire Section

The Secretary of Labor must conduct investigations and inspections and require the
keeping of records as are necessary and appropriate for the administration of the EPPA.
59 The Secretary is also authorized to issue subpoenas requiring the attendance and
testimony of witnesses or the production of any evidence in connection with an
investigation or hearing under the Act, in conformity with the procedures established
under the applicable provisions of the Federal Trade Commission Act (15 USCS 49,
50). 60 Investigations are to be conducted, to the extent practicable, in a manner which
protects the confidentiality of the complainant and any other person who provides the
Secretary with information in good faith. 61
Hearing procedures for the purpose of assessing civil money penalties 62 for violations
of the Act or the pertinent regulations 63 are also discussed elsewhere.
Footnotes
For a discussion of record retention requirements necessary for the permissible polygraph
testing allowed by statute, see 1948.
Footnote 62. 1842-1854.
1840 Rulemaking authority and responsibilities

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The Secretary of Labor may issue such rules and regulations as may be necessary or
appropriate to carry out the EPPA. 64
Footnotes
1841 Reporting violations

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Any person may report a violation of the EPPA, or the regulations of the Secretary of
Labor, 65 to any local office of the Wage and Hour Division or to any authorized
representative of the Administrator of the DOL's Employment Standards Administration.
Such reports will be referred to the office of the Division for the region or area where the
violation is alleged to have occurred. 66
Footnotes
Footnote 65. 1840.
b. Hearings to Assess Civil Penalties [1842-1854]
1842 Notice of determination

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The Administrator of the DOL's Wage and Hour Division, either in person or by certified
mail, must provide written notification to the individual against whom a penalty has been
assessed. 67 This notice must describe the violation and the amount assessed, 68
provide the Administrator's determination and his reasons, 69 and indicate that there is a
right to, and a proper method for, requesting a hearing. 70 The notice must also state
that the Administrator's determination about a violation becomes final and unappealable
when no hearing is requested. 71
Footnotes
Footnote 70. 29 CFR 801.52(c), (e).
1843 Requests for a hearing

View Entire Section
Go to Supplement
Hearings must be requested in writing within 30 days of the service of the notice of
determination. Hearing requests are to be sent to the Administrator of the Wage and
Hour Division, Employment Standards Administration, U.S. Department of Labor, 200
Constitution Ave., N.W., Washington D.C., 20210. 72 Although there is no particular
form for hearing requests, they must either be typewritten or at least legible, indicate the
issues, state why it is believed that the determination is erroneous, provide an address
where the individual making the request can receive further communication, and be
signed by either that person or his authorized representative. 73 If mailed, the hearing
request should be sent by certified mail with a return receipt requested, 74 and five days
will be added to the 30-day time period for making the request. 75
1843 ----Requests for a hearing [SUPPLEMENT]
Regulations:
29 CFR 801.53(a) was as amended in 1995 to provide that hearing requests are
directed to the Wage and Hour Division official who issued the determination, at the
address appearing on the determination notice.
Footnotes
1844 Conduct of proceedings

View Entire Section
Except as otherwise provided in the regulations governing the hearings to assess civil
penalties, 76 nonconflicting provisions of the "Rules of Practice and Procedure for
Administrative Hearings Before the Office of Administrative Law Judges" (29 CFR Part
18) also apply to the proceedings to assess civil penalties. 77
Footnotes
Footnote 76. 1842-1854.
1845 Service and filing of all documents

View Entire Section
All pleadings and other documents in an EPPA administrative proceeding to assess civil
penalties must either be personally served on the individual, corporate officer, or attorney
of record or must be mailed to their last known address. 78 One copy of all pleadings or
other documents must be served on the Associate Solicitor, Division of Fair Labor
Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Ave.,
N.W., Washington, D.C. 20210, and one copy must be served on the attorney
representing the Department in the hearing. 79 Furthermore, an original and two copies
of all documents must be filed with the Secretary of Labor, U.S. Department of Labor,
Washington, D.C., 20210, 80 by personal delivery or mail. 81 Documents are not
considered filed with the Secretary until they have been received. Thus, no additional
time is added for service of a document on the Secretary, even when served by mail. 82
Required service on other individuals, if accomplished by mail, is complete when
received if regular mail is used, and is complete when mailed if certified mail is used. 83
Footnotes
Footnote 80. 29 CFR 801.71(a), (b).
1846 Time computations

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To determine whether an administrative pleading or filing under the EPPA is timely
served, computation begins with the day after the action involved and includes the last
day of the time period, unless it falls on Saturday, Sunday, or a federal holiday, in which
case the time period includes the next business day. 84
Footnotes
1847 Commencement and identification of proceedings

View Entire Section
A proceeding to assess civil penalties is officially commenced when a timely request for
a hearing 85 has been filed. 86 Each proceeding is identified by the year it is
commenced, the letters "EPPA," followed by a number, and this designation should
appear on all pleadings and documents served and filed. 87 Each such proceeding is
also captioned in the following style; "In the Matter of (the person requesting the
hearing), Respondent." 88
Footnotes
Footnote 85. 1843.
1848 Parties and representatives

View Entire Section
The Secretary of Labor is identified as the plaintiff in the administrative proceedings to
assess civil penalties, and the person who requests the hearing is named as the
respondent. 89
The Associate Solicitor of the Division of Fair Labor Standards, or the Regional
Solicitor, shall represent the Department. 90
Footnotes
1849 Referral and docketing of hearing requests

View Entire Section
Once a timely hearing request 91 is filed, a copy of the request together with the
administrative determination 92 is sent to the Chief Administrative Law Judge, and such
documents constitute a complaint and answer in the proceedings. 93 The Chief
Administrative Law Judge is responsible for promptly notifying the parties 94 when the
matter has been docketed. 95
Footnotes
Footnote 91. 1843.
Footnote 92. 1842.
Footnote 94. 1848.
1850 Negotiated consent findings and orders

View Entire Section
In the time after an administrative proceeding has begun, but before any evidence has
been heard, presentation of evidence may be delayed for a reasonable time for
negotiation of an agreement. The Administrative Law Judge is responsible for granting a

deferment and deciding how long it will be, based on the nature of the proceeding, the
needs of public interest, the parties' representations, and the probability that an agreement
will be reached which would justly dispose of the issues. 96
Any such agreement must contain findings and an order that has the same effect as an
order made after a full hearing. 97 In addition, the agreement must waive the right to
proceed before the Administrative Law Judge or otherwise challenge the validity of the
findings and order. 98 Provided an agreement is submitted in the time provided to reach
accord, the Administrative Law Judge has 30 days after its submission to accept it if
satisfied with it. It is accepted when the Administrative Law Judge issues a decision on
the agreed findings. 99
Footnotes
Footnote 97. 29 CFR 801.66(b)(1).
Footnote 98. 29 CFR 801.66(b)(3), (4).
The record of the proceedings, if an agreement is reached, is discussed at 1854.
1851 The Administrative Law Judge's decision

View Entire Section
As far as the burden of proof is concerned, once the ALJ has found that a polygraph or lie
detector test violates the EPPA, the burden shifts to the employer to show that the test is
permissible under one of the EPPA's exemptions. 1
The decision of the Administrative Law Judge (ALJ) must include a statement of findings
and conclusions for each material issue, together with the reasons for reaching those
conclusions, as well as an appropriate order upholding, revising, or modifying the
Secretary's determination, 2 as soon as practicable after the expiration of the time given
to the parties for filing proposed findings and conclusions. 3
The ALJ's decision is limited to the alleged violation and cannot address the legality of a
regulatory provision or the constitutionality of a statutory provision. 4 The ALJ will
serve a copy of the decision on the parties, 5 which decision shall constitute the final
order 6 of the Secretary of Labor unless a review is requested. 7
Footnotes
Footnote 1. In the Matter of Rapid Robert's Inc.(US DOL ALJ) No. 91-EPP-4, 6/18/92;
In the Matter of Scrivener Oil Co. (US DOL ALJ) No. 91-EPP-6, 6/18/92.
Footnote 6. 1853.
1852 Requesting review of the Administrative Law Judge's decision

View Entire Section
Any party 8 who wants a review of the Administrative Law Judge's (ALJ) decision must
file a petition for issuance of a Notice of Intent to Modify or Vacate the Decision and
Order, 9 in writing, within 20 days of the date of the ALJ's decision, along with two
copies of the petition, with the Secretary of Labor. Also, the petition must specify why
review is being sought, and must have the ALJ's decision attached to it. 10 The petition
will be served on all parties and the Chief Administrative Law Judge. 11
Footnotes
Footnote 8. 1848.
1853 Final decision and order

View Entire Section
The Secretary of Labor has the authority to modify or vacate the ALJ's decision and
order, either as a result of a petition for issuance of a Notice of Intent to Modify or
Vacate the ALJ's decision and order, 12 or as a result of the Secretary's own motion.
This review is a matter of the Secretary's sound discretion, not a matter of right. The
Secretary initiates these proceedings by issuing a Notice of Intent, 13 within 30 days
after the date of the ALJ's decision, 14 which must be served on each party and the
Chief Administrative Law Judge, personally or by certified mail. 15 The Notice of
Intent will specify the issues to be considered, the appropriate form for submissions (i.e.,
briefs, oral argument, etc.) and the time within which all such presentations or
submissions are to be made. 16
The Secretary of Labor may modify or vacate the ALJ's decision, if it is inconsistent with
a policy or precedent of the Department of Labor, 17 is outside the scope of the ALJ's
authority, 18 awards unjustified or excessive attorney's fees or other litigation expenses
under the Equal Access To Justice Act, 19 or otherwise warrants modification or
overruling. 20 Findings of fact may not be modified or vacated unless the Secretary
finds them to be clearly erroneous. 21
The Secretary's final order will be served on the parties and the Chief Administrative
Law Judge, personally or by certified mail. 22
Footnotes
Footnote 12. 1852.
Footnote 17. 29 CFR 801.68(a)(1).
Footnote 18. 29 CFR 801.68(a)(2).
Footnote 19. 29 CFR 801.68(a)(3).
Footnote 20. 29 CFR 801.68(a)(4).
1854 Certification and retention of the official record

View Entire Section

The Chief Administrative Law Judge has 15 days in which to send a copy of the
complete hearing record to the Secretary of Labor after receiving the Secretary's Notice
of Intent to modify or vacate the decision and order of an Administrative Law Judge. 23
The Chief Administrative Law Judge is also in charge of maintaining the official hearing
record under his custody and control. 24
In the event of an appeal of a final order, 25 the Chief ALJ must certify and file a
complete and correct copy of the official record with the appropriate U.S. District Court.
26
If the proceedings to assess civil penalties were concluded by negotiated consent findings
and orders 27 the record only consists of that agreement and the Secretary's notice of
determination. 28
Footnotes
Footnote 25. 1853.
Footnote 27. 1850.
Footnote 28. 29 CFR 801.66(b)(2).
12. Farm Labor Contractor Proceedings [1855-1895]
1855 Generally
View Entire Section
Go to Supplement
The Migrant and Seasonal Agricultural Workers Protection Act (MSPA), 29 which
regulates the activities of farm labor contractors and their employees, is enforced by the
Secretary of Labor, 30 acting through the Administrator of the Wage and Hour Division
of DOL's Employment Standards Administration. 31 However, the DOL may enter into
agreements with states to implement the provisions of the statute. 32 The Labor
Department has issued procedures for submitting applications 33 and complaints 34
under the Act, and for the making of initial 35 and final 36 decisions on those
applications and complaints.
The provisions of the Administrative Procedure Act 37 apply to administrative
proceedings under the MSPA. 38
Case authorities:
Migrant farm workers' claim against farm, alleging violation of 29 USCS 1841(b)(1),
is denied summarily, where workers were injured while being transported to farm by
fellow laborer, but where farm did not request or direct laborer to use his van to transport
workers, but rather he did it as favor, because car pooling arrangements amongst workers
and not specifically directed or requested by employer, crew leader, or agent preclude
liability upon employer. Alviso-Medrano v Harloff (1994, MD Fla) 868 F Supp 1367,
129 CCH LC 33202.
Footnotes
Footnote 30. 29 USCS 1802(11), 1861.
Footnote 38. 29 USCS 1813(b)(1), 1853(b)(1).
1856 Agreements with states

View Entire Section

The Secretary of Labor may enter into agreements with state agencies to:
use their facilities and services in enforcing the MSPA;
delegate to the state agencies the authority necessary to carry out the MSPA;
allocate to or otherwise reimburse the state agencies for expenses incurred in enforcing
the MSPA. 39
Any agreement between the Secretary of Labor and a state agency must be in writing. 40
Footnotes
Footnote 40. 29 CFR 500.157(a).
1857 State plans

View Entire Section
In order to enter into an agreement with the Secretary of Labor to administer the MSPA,
a state agency must submit a written plan to the Department of Labor. 41 The plan
must:
include a description of the functions to be performed by the state agency, the method of
performing them, and the resources to be devoted to the performance of these functions;
42
provide assurances satisfactory to the Secretary that the state agency will comply with
its plan and that its performance of the delegated functions will be at least comparable to
the performance of such functions by the Department of Labor; 43
indicate the state authority for performing the functions the state seeks to have delegated
to it; 44
include a certification by the state attorney general that state law permits the state to
enter into the agreement; if the attorney general is not authorized by state law to issue
this certification, the certification should be made by an authorized state official; 45
estimate the cost of carrying out the delegated functions. 46
Footnotes
Footnote 44. 29 CFR 500.159(b)(2).
Footnote 45. 29 CFR 500.157(b)(3).
Footnote 46. 29 CFR 500.159(b)(4).
b. Applications [1858-1866]
1858 Certificates of registration

View Entire Section
Before engaging in contracting activities, farm labor contractors and their employees
must obtain a certificate of registration from the Secretary of Labor specifying which
farm labor contracting activities the contractor is authorized to perform. 47
To obtain a certificate of registration or a Farm Labor Contractor Employee Certificate of
Registration, the contractor or employee must file with the Secretary of Labor a written
application, which must contain:
a statement of the applicant's place of residence, the contracting activities for which the
certificate is requested, and the address to which the official documents should be mailed;
identification of each vehicle to be used to transport workers and documentation
regarding ownership and compliance with safety requirements; 48
a description of each facility to be used to house workers and documentation concerning
ownership and compliance with safety and health standards; 49
a set of fingerprints of the applicant;
a declaration consenting to the designation of the Secretary of Labor as an agent
available to accept service of summons if the contractor has left the jurisdiction in which
an action is commenced, or if the contractor is otherwise unavailable. 50
Applications must be made on forms designated by the Secretary of Labor. 51 Forms
may be obtained at any state employment service office or any office of the DOL's Wage
and Hour Division and may be filed with either office. 52 Applications and other
required documents are filed in the same manner as are pleadings and documents in an
administrative hearing. 53
A federal certificate is required regardless of whether registration, licensing, or
identification is required under state law. 54
The Administrator of the Wage and Hour Division has established a central public
registry of all persons who have been been issued certificates of registration under the
MSPA. This registry is available at the Division's regional offices and its national office
in Washington, D.C. Information contained in the registry is made available upon
request, either by mail addressed to the Administrator, Wage and Hour Division, Att:
MSPA, U.S. Department of Labor, Washington, D.C. 20210 or by calling
1-800-800-0235. 55
Footnotes
Footnote 48. 1859.
Footnote 49. 1860.
Footnote 50. 29 USCS 1812; 29 CFR 500.45.
Footnote 53. 29 CFR 500.5, discussed at 1877.
Footnote 55. 29 CFR 500.170.
1859 Authorization to transport farm workers

View Entire Section
If an applicant for a certificate of registration, including an applicant for a Farm Labor
Contractor Employee Certificate of Registration, is seeking permission to transport
migrant or seasonal agricultural workers, the applicant must submit a statement
identifying each vehicle to be used. If the vehicle is or will be owned or controlled by
the applicant, documentation must show that the applicant is in compliance with the
MSPA's safety and health requirements 56 with respect to each vehicle 57 and that
each vehicle is in compliance with the insurance requirements of the Act. 58
Any contractor or employee who is to drive a vehicle transporting workers must also
submit evidence of an appropriate license to operate the vehicle, and a doctor's certificate
on the prescribed form. A new doctor's certificate is necessary on a renewal application
if the previous certificate is more than three years old. 59
Footnotes
1860 Authorization to house farm workers

View Entire Section
If an applicant for a certificate of registration, including an applicant for a Farm Labor
Contractor Employee Certificate of Registration, intends to provide housing to
agricultural workers, the applicant must submit a statement identifying each facility or
parcel of real property to be used. If the facility or real property is or will be owned or
controlled by the applicant, documentation must be provided to show that the applicant is
in compliance with the applicable health and safety requirements 60 with respect to
each facility or piece of real property, 61 including state health and safety standards. To
meet this requirement, the applicant must submit either a certification issued by a state or
local health authority or other appropriate agency or a copy of a written request for the
inspection of the facility or real property submitted to the appropriate state or local
agency at least 45 days before the property is to be occupied. The request for inspection
must be dated and signed by the applicant or other person who owns or controls the
facility or real property. 62
If the required written proof is unavailable at the time the application is filed, the
applicant may submit a written statement that the applicant will not house workers in any
facilities that do not conform to all applicable federal and state safety and health
standards. The applicant will then be issued a certificate of registration without a
housing authorization, which may be amended to include the authorization to house when
the required written proof is submitted. 63
Once a contractor expressly offers "no cost housing" to its migrant workers, it must make
sure the housing is available by the date they are to begin working, and it is not excused
from this obligation by the fact that it is leasing the housing from someone else. Once
housing is offered, the contractor must make alternative housing arrangements, if the
original arrangements will not be ready on time. The failure to do so may render the
terms of its registration certificate misleading or inaccurate and violate the terms of the
parties' working arrangement under 29 USCS 1822(c). 64
Footnotes
Footnote 64. Clarke v Gardenhour Orchards, Inc. (1987, DC Md) 108 CCH LC 35070.
1861 Appointment of agent for substituted service

View Entire Section
The applicant for a certificate of registration, including an applicant for a certificate of
registration as a farm labor contractor employee, must consent to the designation by a
court or the Secretary of Labor as an agent available to accept service of process in any
action against the applicant, if the applicant has left the jurisdiction in which the action is
commenced or has otherwise become unavailable to accept service. 65 A contractor
does so by executing a sworn statement and filing it with the office where the application
is filed. 66
Footnotes
1862 Amendment of certificate

View Entire Section
If, while a certificate of registration is in effect, a registered farm labor contractor intends
to engage in another farm labor contracting activity or to use a vehicle or housing that
was not covered by the original certificate, the contractor must apply to the Secretary of
Labor to amend the certificate of registration. 67
If another vehicle or housing facility is to be used, the contractor must submit the
information required to obtain authorization to transport, drive, or house farmworkers,
within 10 days after the contractor obtains or learns of the intended use of such vehicle or
housing. 68
Footnotes
1863 Replacement of employee certificate upon change of employment

View Entire Section
If the holder of an employee certificate changes employment before the expiration of the
certificate, thereby becoming the employee of a different registered farm labor contractor,
the employee may obtain a replacement employee certificate naming the new employer.
69
To obtain a new certificate, the employee must submit a written statement including the
date of the change of employment and the name, permanent place of residence, and
certification number of the new employer, to the regional office that issued the original
employee certificate or to any regional office of the Wage and Hour Division,
Employment Standards Administration. 70
Footnotes
1864 Obtaining a duplicate certificate or identification card

View Entire Section
If a certificate of registration or a Farm Labor Contractor Employee Certificate is lost or
destroyed, the holder may obtain a duplicate by submitting a written statement explaining
the loss or destruction, indicating where the original application was made, and
requesting that a duplicate be issued. 71

The applicant may submit the request for a duplicate to the regional office that issued the
original, or to any regional office of the DOL Wage and Hour Division. 72
Footnotes
1865 Applying for a renewal certificate

View Entire Section
A certificate of registration as a farm labor contractor or a farm labor contractor
employee is valid for one year from the date of issuance. 73
The Secretary of Labor may renew a certificate for additional 12-month periods or for
periods in excess of 12 months, but not in excess of 24 months. 74 A certificate also
may be temporarily extended if the application for renewal has been filed with the
Secretary at least 30 days prior to the certificate's expiration date. 75
An application for renewal of a Farm Labor Contractor Certificate of Registration or a
Farm Labor Contractor Employee Certificate must be made on forms designated by the
Secretary of Labor. 76
If the applicant is to drive a vehicle for the transportation of farmworkers, the applicant
must submit evidence of an appropriate license to operate the vehicle, and a new
completed doctor's certificate if the previous doctor's certificate is more than three years
old. 77
Footnotes
Footnote 75. 29 USCS 1814(b)(1)(B); 29 CFR 500.50.
1866 Review of application; decision

View Entire Section
The Wage and Hour Administrator or his authorized representative will review each
application and notify the applicant in writing if the application is incomplete or executed
incorrectly, returning the application for correction and completion if necessary. 78
If the Secretary of Labor denies an application for the issuance or renewal of a certificate
as a farm labor contractor or as a farm labor contractor employee or suspends or revokes
a certificate, the aggrieved party may request an agency hearing within 30 days from the
date of issuance of the notice of the refusal, suspension, or revocation. 79
Footnotes
Footnote 78. 29 CFR 500.48(a), (b).
Footnote 79. 29 USCS 1813(b)(1); 29 CFR 500.52, 500.212.
As to administrative hearings, see 1869 et seq.
c. Complaints [1867-1868]
1867 Reporting violations of MSPA

View Entire Section
Any person may report a violation of the MSPA or implementing regulations to any local
office of the state employment service or any office of the Wage and Hour Division, or
any other representative of the Administrator. 80 Complaints will then be referred for
investigation to the regional office of the Wage and Hour Division for the region in
which the reported violation is alleged to have occurred, 81 and administrative 82 or
judicial 83 enforcement proceedings may ensue.
Footnotes

1868 Protesting retaliation

View Entire Section
Any migrant or seasonal agricultural worker who believes, with just cause, that he has
been discriminated against for filing any complaint, instituting or causing to be instituted
any proceeding, testifying or preparing to testify in any proceeding, or exercising any
right or protection under the MSPA may file a complaint with the Secretary of Labor
within 180 days after the discrimination occurs. 84 An investigation will ensue and the
Secretary may bring a judicial enforcement action. 85
Footnotes
d. Hearings [1869-1890]
1869 Purpose of hearing

View Entire Section
After notice and an opportunity for a hearing, the Secretary of Labor may deny, suspend,
or revoke a certificate of registration, 86 as well as assess civil money penalties for
violation of the MSPA. 87
The administrative hearing procedures apply equally to both types of actions. 88
Footnotes
Footnote 88. 29 CFR 500.201.
1870 Notification procedure

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Whenever the Secretary of Labor decides to suspend, revoke, or deny the issuance of a
certificate of registration, 89 or to assess a civil money penalty, 90 the Secretary will
notify the person affected in writing of the action to be taken. Whenever the Secretary
decides to revoke, suspend, or deny registration, the Secretary will also notify in writing
every applicant for, or holder of, a certificate of registration as an employee of the
contractor. 91 Similarly, whenever the Secretary decides to deny, revoke, or suspend an
employee certificate of registration, the Secretary will notify in writing the farm labor
contractor employer of the applicant or certificate holder. 92
The notice must inform the affected person of the right to request a hearing 93 and the
time and method for making such a request and warn the person that if no request is
made, the Secretary's determination will become a final, unappealable order. 94
Footnotes
Footnote 89. 29 CFR 500.210(a).
Footnote 90. 29 CFR 500.210(b).
Footnote 91. 29 CFR 500.210(a)(1).
Footnote 92. 29 CFR 500.210(a)(2).
Footnote 93. 1871.
Footnote 94. 29 CFR 500.211(c)-(e).
1871 Requesting a hearing

View Entire Section
Any person adversely affected by the action of the Secretary of Labor in enforcing the
MSPA may request an administrative hearing 95 within 30 days of service of the notice
of adverse action. 96
The request for a hearing must be in writing to the official who issued the determination,
at the Wage and Hour Division address appearing on the determination notice, no later
than 30 days after the notice is issued under the notification procedure. 97 The request
must be delivered in person or by certified mail. 98
The request for hearing must:
be typed or legibly written;
specify the issues stated in the notice of determination that give rise to the request for
hearing;
state the specific reasons why the person requesting the hearing believes the
determination is wrong;
be signed by the person making the request or by an authorized representative;
include the address at which the person requesting the hearing or the authorized
representative desires to receive further communications relating to the matter. 99
If no hearing is requested within the prescribed time period, the determination of the
Secretary of Labor becomes a final and unappealable order. 1
If any party requesting a hearing, after being properly served with notice of the hearing,
fails to appear at the hearing, such failure will constitute a withdrawal of the request for
hearing and the administrative determination will be affirmed. 2
Footnotes
Footnote 95. 29 CFR 500.212(a).
Footnote 96. 29 USCS 1813(c), 1853(b)(1).
Footnote 97. 29 CFR 500.212(a), discussed at 1870.
Footnote 98. 29 CFR 500.212(b).
Footnote 99. 29 CFR 500.212(c).
Footnote 1. 29 USCS 1813(b)(1), 1853(b)(1).
1872 Commencement of hearing

View Entire Section

Following a timely request for a hearing, the administrative proceeding will commence. 3
The DOL's Chief Administrative Law Judge assigns the case to an ALJ, and promptly
notifies the parties of the docketing of the matter. 4 The administrative law judge will
be provided with a copy of the administrative determination and a copy of the hearing
request. The notice and request for hearing are given the effect of a complaint and answer
for purposes of the administrative proceeding. 5
A copy of the order of reference, along with a copy of the regulations governing hearings
under the MSPA, are served by counsel for the Wage and Hour Administrator on the
person requesting the hearing. 6
Footnotes
1873 Disqualifying the ALJ

View Entire Section
A party may file a motion to disqualify and remove an ALJ with the Chief Administrative
Law Judge. The motion must be accompanied by an affidavit stating the grounds for
disqualification. If the motion is granted, the Chief Administrative Law Judge will
assign the matter to another ALJ. The Chief Administrative Law Judge's ruling on the
motion is final. 7
Footnotes
1874 Representation of parties

View Entire Section

The Associate Solicitor for Fair Labor Standards and any other designated counsel
represent the Secretary of Labor in the proceedings. 8
The person requesting the hearing may appear by or with counsel, and if not represented
by counsel, may appear in person or through authorized agents and may submit necessary
documents with his own signature. 9
Footnotes
1875 Pleadings and documents

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All pleadings or documents filed in the case must be captioned as follows: "In The
Matter of [the person requesting the hearing], Defendant." 10 The Secretary of Labor
must be identified as the plaintiff. 11
Each pleading, motion, brief, or other formal document filed and docketed of record in
the case must contain the designation assigned to the case, which consists of the number
for the year followed by the letters MSPA and one or more of the following letters: (1) R
for proceedings involving the suspension, revocation, or denial of a certificate of
registration, or (2) P for proceedings involving the assessment of civil money penalties.
12
Footnotes
Footnote 10. 29 CFR 500.222(a).
Footnote 11. 29 CFR 500.222(b).
Footnote 12. 29 CFR 500.221.
1876 Supplemental pleadings

View Entire Section

An amended notice of administrative determination may be filed by the Secretary of
Labor, or an amended response may be filed by the respondent who requested the
hearing. 13
Any supplemental pleadings must be filed with the Chief Administrative Law Judge, with
proof of service on the opposing party, at least 10 days before the date set for the hearing
or for a prehearing conference, unless the time for filing is extended by the ALJ. 14
If an amended notice of administrative determination is filed by the Secretary, the
respondent may file an amended response within five days after service of the amended
notice. 15
Footnotes
Footnote 13. 29 CFR 500.225.
Footnote 14. 29 CFR 500.225.
Footnote 15. 29 CFR 500.225.
1877 Service of pleadings and documents

View Entire Section
Any pleading, notice, or other document filed or served on any party may be filed or
served either personally or by mail to the last-known address of the person. 16
Filing or service on a farm labor contractor, certificate holder, or applicant is complete
upon mailing or personal service. 17 Service on an agricultural employer, agricultural
association, or any other party is complete upon receipt by the addressee, or his agent or
employee. 18 When any party is represented by an attorney, service should be made on
the attorney. 19
A party serving pleadings or documents on the Department of Labor must serve an
original and three copies as follows: the original to the Chief Administrative Law Judge,
a copy to the administrative law judge assigned to the proceeding, a copy to the Associate
Solicitor for Fair Labor Standards, Office of the Solicitor, United States Department of
Labor, 200 Constitution Avenue, NW, Washington, D.C. 20210, and a copy to the
attorney representing the Department of Labor. 20 In addition, the person serving the
pleading or document must file a certificate setting forth the manner of service in order to
prove service. 21
Footnotes
Footnote 16. 29 CFR 500.226(a), (b).
Footnote 17. 29 CFR 500.226(a).
Footnote 18. 29 CFR 500.226(b).
Footnote 19. 29 CFR 500.226(c)(1).
Footnote 20. 29 CFR 500.227.
Footnote 21. 29 CFR 500.228.
1878 When must response be filed

View Entire Section
Whenever a party to the proceedings has a right to, or is required to take, any action
following service of a pleading, notice, or other document, and the pleading, notice, or
document is served by certified mail, the party has an additional five days in which to
take the required or permitted action. 22
Saturdays, Sundays, and federal legal holidays are included in computing the time
allowed for filing any pleading, notice, or other document. However, when the filing time
expires on such a day, the period will be extended to the following day that is not a
Saturday, Sunday, or federal legal holiday. 23
In computing any period of time, the day of the act, event, notice, or default from which
the designated period of time begins to run is not included. 24
Footnotes
Footnote 22. 29 CFR 500.226(c)(2).
Footnote 23. 29 CFR 500.229(a).
Footnote 24. 29 CFR 500.229(b).
1879 Motions
View Entire Section

All matters, other than the notice of administrative determination and the request for
hearing, must be presented by motion. 25
A party must file a written motion with the designated ALJ and serve copies on the other
parties, except for motions made orally at a hearing or appearance before the ALJ. The
motion must state the particular order, ruling, or action desired, and the grounds for it. 26
It should be noted that all motions or requests must be filed or made prior to the filing of
the administrative law judge's decision. 27
Footnotes
Footnote 25. 29 CFR 500.232.
Footnote 26. 29 CFR 500.233.
Footnote 27. 29 CFR 500.233.
1880 Subpoenas
View Entire Section
A party seeking the issuance of a subpoena ad testificandum or a subpoena duces tecum
must make written application to the ALJ. The application for a subpoena duces tecum
must specify as exactly as possible the documents to be produced, and must show their
general relevancy and reasonable scope. 28
The provisions of the Federal Trade Commission Act relating to the attendance of
witnesses or the production of books, papers, and documents apply in hearings under the
MSPA. 29
Footnotes
Footnote 28. 29 CFR 500.234.
1881 Depositions
View Entire Section

A party desiring to take the deposition of a witness must file a written application with
the Chief Administrative Law Judge or the ALJ assigned to the case setting forth the
following:
the reasons why the deposition should be taken;
the time and place at which it is to be taken;
the name and address of the person for whom it will be taken;
the name and address of each deponent and the subject matter concerning which each is
to testify. 30
Upon a showing of good cause, the ALJ may authorize the taking of the deposition
before any person designated by the ALJ and having the power to administer oaths. 31
Each deponent is sworn, and the adverse party may cross-examine. The supervising
officer has the deposition transcribed, including all objections made, and the deponent
signs it. The officer then sends by certified mail the original and two copies of the
deposition to the ALJ. 32
At least five days' written notice must be given for a deposition taken within the United
States. At least 20 days' written notice must be given for a deposition taken outside of
the United States. However, the ALJ may require an earlier notice. 33
Footnotes
Footnote 30. 29 CFR 500.236(b).
Footnote 31. 29 CFR 500.236(a).
Footnote 32. 29 CFR 500.236(d).
Footnote 33. 29 CFR 500.236(c).
1882 Prehearing conference

View Entire Section
Upon the motion of either party, or when deemed appropriate by the administrative law
judge, the ALJ may order the parties or their authorized representatives to meet with the
ALJ for a conference to consider simplification or clarification of the issues, amendments

to pleadings, stipulations, admissions of fact, and admissions of contents and authenticity
of documents, limitation on the number of witnesses, and other matters that may expedite
the proceedings. 34
The ALJ then issues a prehearing order showing the matters disposed of by order and
agreement at the prehearing conference. This order controls the subsequent proceedings.
35
Footnotes
Footnote 34. 29 CFR 500.237(a).
Footnote 35. 29 CFR 500.237(b).
1883 Consent orders

View Entire Section
At any time prior to the reception of evidence at the hearing, a party may move to defer
the hearing for a reasonable time to permit negotiation of an agreement containing
consent findings and an order disposing of all or part of the proceeding. The allowance
and duration of the deferment is within the discretion of the ALJ. 36
If the motion is granted, the parties or their authorized representatives or counsel must
submit a proposed agreement to the ALJ, or inform the ALJ that agreement cannot be
reached, on or before the expiration of the time granted for the negotiations. 37
Any agreement containing consent findings and an order disposing of a proceeding or
any part of it must provide that:
(1) the order has the same force and effect as an order made after a full hearing;
(2) the entire record on which the order is based consists solely of the notice of
administrative determination and the agreement;
(3) all further proceedings before the ALJ are waived; and
(4) any right to challenge or contest the validity of the findings and order is waived. 38
If an agreement containing consent findings and an order is submitted to the ALJ within
the prescribed time, the ALJ will accept the agreement by issuing a decision based on the
agreed facts within 30 days, if satisfied with the agreement. 39
Footnotes
Footnote 36. 29 CFR 500.238(a).

Footnote 37. 29 CFR 500.238(c).
Footnote 38. 29 CFR 500.238(b).
Footnote 39. 29 CFR 500.238(d).
1884 Intervention
View Entire Section
Upon a showing of good cause, the ALJ may permit any interested party to intervene at
the hearing. Any party wishing to intervene must file a written request stating briefly and
with particularity his relationship to, and interest in, the matter involved and the nature of
the presentation to be made. 40
Footnotes
Footnote 40. 29 CFR 500.250(b).
1885 Hearing procedures

View Entire Section
Unless otherwise ordered by the ALJ, the hearing will be open to the public. 41
However, the ALJ may exclude from the hearing anyone found to be in contempt. 42
At the hearing, all issues will be determined on the record in accordance with the
requirements of the Administrative Procedure Act. 43 Furthermore, the ALJ has all
powers necessary to conduct a fair and impartial hearing, and may take any action
authorized by the regulations or in conformity with the Administrative Procedure Act,
and any appropriate action authorized by the Federal Rules of Civil Procedure. 44 The
ALJ also will have the hearing stenographically reported. 45
When a fact is at issue, the ALJ may not consult any person or party about it unless all
parties are given notice and an opportunity to participate in the consultation. 46
Counsel for the Secretary of Labor will proceed first at the hearing unless the ALJ
determines otherwise. 47
Footnotes
Footnote 41. 29 CFR 500.250(a).
Footnote 42. 29 CFR 500.250(d).
Footnote 43. 29 USCS 1813(b)(1), 1853(b)(1).
Footnote 44. 29 CFR 500.230(a).
Footnote 45. 29 CFR 500.253.
Footnote 46. 29 CFR 500.230(b).
Footnote 47. 29 CFR 500.250(a).
1886 Evidence
View Entire Section
The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious. 48
A party objecting to the admission or rejection of any evidence or to the limitation of the
scope of examination or cross-examination or the failure to limit such scope must state
briefly the grounds for the objection. All objections and rulings must appear in the
record. However, a formal exception to an adverse ruling is not required. 49
Official notice may be taken of any material fact that does not appear in evidence as long
as it is traditionally appropriate for judicial notice or concerns matters in which the
Department of Labor is presumed to be expert. The parties must be given adequate notice
at the hearing or by reference in the ALJ's decision of the matter judicially noticed, and
must be given an opportunity to show the contrary. 50
Footnotes
Footnote 48. 29 CFR 500.251(a).
Footnote 49. 29 CFR 500.251(b).
Footnote 50. 29 CFR 500.252.
1887 Admissibility of depositions

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Upon a showing that the original reasons for taking a deposition still exist at the time of
the hearing, the deposition may be read and offered into evidence by the party who took
it against any party who was present or represented at its taking or who had due notice of
the deposition. Acceptance into evidence is subject to objections noted at the time of the
taking of the deposition. 51
Footnotes
Footnote 51. 29 CFR 500.236(d).
1888 Witnesses
View Entire Section
The ALJ, upon the request of any party or his own motion, may require persons to appear
and testify at the hearing when necessary to serve the purposes of the hearing. 52
Witnesses subpoenaed by a party or by the ALJ are paid the same fees and mileage as
witnesses are paid in Federal District Courts. The party who instigates the subpoenae
pays the witness's fee and mileage. 53
All witnesses at the hearing are placed under oath by the ALJ, and may be
cross-examined as required for full and true disclosure of the facts. 54
If a witness fails or refuses to appear at a hearing or to answer any question that has been
ruled proper, the ALJ may strike all or part of the testimony that may have been given by
the witness. 55
Footnotes
Footnote 52. 29 CFR 500.235(a).
Footnote 53. 29 CFR 500.235(b).
Footnote 54. 29 CFR 500.251(a).
Footnote 55. 29 CFR 500.251(c).
1889 Submission of proposed findings

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After the hearing, any party may request an opportunity to file with the ALJ proposed
findings of fact and conclusions of law, along with a proposed order and a supporting
brief. The ALJ must allow the party at least 15 days in which to do so. 56
The proposals must be accompanied by a certification that service has been made on all
other parties. 57
Footnotes
Footnote 56. 29 CFR 500.261.
Footnote 57. 29 CFR 500.261.
1890 Decision of ALJ

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After the expiration of the time set for filing proposed findings, the ALJ prepares a
decision on the issues referred by the Secretary of Labor. 58 The ALJ must include in
the decision a statement of findings and conclusions, with reasons and bases for them, on
each material issue of fact, law, or discretion presented on the record. The decision must
be accompanied by an appropriate order that affirms, denies, reverses, or modifies, in
whole or in part, the determination of the Secretary of Labor. 59
The ALJ sends the entire record, including the original of the decision, to the Chief
Administrative Law Judge, who then serves copies of the decision on each of the parties.
60 The ALJ's decision will become the final order of the agency, unless the Secretary of
Labor modifies or vacates the decision. 61
Footnotes
Footnote 58. 29 CFR 500.262(a).
Footnote 59. 29 CFR 500.262(c).
Footnote 60. 29 CFR 500.262(d).
Footnote 61. 29 USCS 1813(b)(2), 1853(b)(2).

e. Review by Secretary of Labor [1891-1895]
1891 Basis for review

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Whenever the Secretary of Labor believes that the decision and order of the ALJ in an
action under the MSPA is inconsistent with the Department of Labor's policies or
precedents, or that the decision and order exceed the ALJ's authority, the Secretary may
modify or vacate the decision and order. 62
Footnotes
Footnote 62. 29 CFR 500.263.
1892 Notice of intent to modify or vacate decision

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If the Secretary of Labor intends to modify or vacate the decision and order of the ALJ
following a hearing under the MSPA, the Secretary must issue a notice of intent to
modify or vacate to the parties within 30 days after the ALJ's decision. 63 The notice
of intent is served on the parties in the same manner as are pleadings and documents in
the administrative hearing. 64 A copy is also served on the Chief Administrative Law
Judge. 65
Footnotes
Footnote 63. 29 USCS 1813(b)(2), 1853(b)(2).
Footnote 64. 1877.
Footnote 65. 29 CFR 500.264(c).
1893 Stay of proceeding for judicial review

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If the respondent in an administrative proceeding under the MSPA files a notice of appeal
of the ALJ's decision and order in a United States District Court prior to receipt of the
Secretary of Labor's notice of intent to modify or vacate the decision and order, the
Secretary will seek a stay of the proceedings in the District Court. 66
Footnotes
Footnote 66. 29 CFR 500.268.
1894 Submission of further documents; oral argument

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After the Secretary of Labor issues a notice of intent to modify or vacate a decision and
order entered by an ALJ following a hearing under the MSPA, the Secretary will review
the hearing record and notify the parties of the issues raised, and the form and time in
which further submissions, such as briefs and oral argument, may be made. 67
Footnotes
Footnote 67. 29 CFR 500.266.
1895 Final decision

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After review of the record of the proceedings before the ALJ, and consideration of any
further submissions of the parties, the Secretary of Labor will issue a final decision and
forward it to the Chief Administrative Law Judge. 68
The Chief Administrative Law Judge will substitute the Secretary's order for the decision
and order of the ALJ and serve it on the parties. 69
Footnotes
Footnote 68. 29 CFR 500.267(a).
Footnote 69. 29 CFR 500.267(b).
Contracts, Form 22.
13. Family and Medical Leave Act Proceedings [1895.1-1824]
1895.1 Generally; administrative action

View Entire Section
Under the Family and Medical Leave Act of 1993, the Secretary of Labor receives,
investigates, and attempts to resolve complaints of violations of the Act in the same
manner that the Secretary receives, investigates, and attempts to resolve complaints of
violations of the wage and hour provisions of the Fair Labor Standards Act of 1938 (29
USCS 206, 207). 70
Footnotes
1895.2 Investigative authority of Secretary

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The Family and Medical Leave Act of 1993 provides that the Secretary of Labor, in order
to ensure compliance with the Act, has authority to investigate and gather data regarding
practices in any industry subject to the Act, and may enter and inspect places of
employment and records, question employees, and investigate facts, conditions, practices,
or matters deemed necessary or appropriate to determine whether a violation of the Act
has taken place, or which may aid in the enforcement of the provisions of the Act. 71
The Secretary has authority under the Act to issue subpoenas. 72
Footnotes

C. Administrative Exemptions [1896-1908]
Research References
5 USCS 601 et seq.; 29 USCS 50 et seq., 628, 793; 38 USCS 4212; 42 USCS
2000e-8; 44 USCS 3501 et seq.
Executive Orders 11246, 11758
5 CFR Part 1320; 29 CFR Parts 30, 1602, 1627; 41 CFR Parts 60-250, 60-741
1. Under the Age Discrimination in Employment Act [1896-1898]
1896 Exemptions from prohibitions

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The EEOC may establish reasonable exemptions from any provision of the ADEA that
are necessary and proper in the public interest. 73 No formal procedures have been
prescribed for requesting these administrative exemptions. However, a request for an
exemption must be submitted in writing to the EEOC. Before an exemption can be
granted, a notice must be published in the Federal Register that gives all interested
persons an opportunity to present data, views, or arguments. 74
Any organization receiving an exemption from the prohibitions of the ADEA is not
thereby relieved from the Act's recordkeeping requirements, 75 unless an exemption
from those requirements is obtained. 76
State aspects: Several of the state fair employment practices statutes authorize
administrative exemptions from their requirements. 77
Footnotes
Footnote 73. 29 USCS 628; 29 CFR 1627.15.
Footnote 74. 29 CFR 1627.15(b).
Footnote 75. 29 CFR 1627.16(b).

As to recordkeeping requirements under the ADEA, generally, see 1928 et seq.
Footnote 76. As to exemptions, see 1897.
Footnote 77. For a discussion of such statutes, see Employment Coordinator EP-35,106.
1897 Exemptions from recordkeeping requirements

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Organizations subject to the ADEA's recordkeeping requirements 78 that wish to
maintain records in a different manner, or to be relieved of preserving certain records for
the prescribed period, may petition the EEOC for relief. The petition must be in writing
and must set forth the reasons for the requested relief and propose alternative
recordkeeping or record-retention procedures. 79 Neither the submission of a petition
nor a delay by the Commission in acting on it relieves the petitioner from any obligation
to comply with the recordkeeping provisions of the regulations. However, the petitioner
will be promptly notified of a denial. 80
The Commission will grant the exemption if it finds that the alternative procedure
proposed would not hamper or interfere with the enforcement of the Act and would be of
equivalent usefulness in the Act's enforcement. 81
Footnotes
Footnote 78. 29 CFR 1627.3-1627.5.
For discussion of the ADEA's recordkeeping requirements, see 1928 et seq.
Footnote 79. 29 CFR 1627.11(a).
Footnote 80. 29 CFR 1627.11(c).
Footnote 81. 29 CFR 1627.11(b).
1898 Revocation of recordkeeping exemptions

View Entire Section
If an organization that was granted an exemption from the ADEA recordkeeping

requirements fails to comply with any of the conditions of the exemption, it will be
notified in writing of the underlying facts and afforded an opportunity to achieve or
demonstrate compliance before the exemption is revoked. 82
Footnotes
Footnote 82. 29 CFR 1627.11(b).
2. Under Executive Order 11246 [1899, 1900]
1899 Reporting exemptions

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Under Executive Order 11246, the Secretary of Labor may provide for the exemption of
the holder of a Certificate of Merit from any reporting requirements imposed pursuant to
the order. 83 Certificates may be issued to employers and other covered entities if the
Secretary is satisfied that the recipient's personnel and employment practices conform to
the purposes and provisions of the Order. 84
Footnotes
1900 Revocation of exemptions

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A Certificate of Merit may at any time be suspended or revoked by the Secretary of
Labor if the holder of the Certificate, in the judgment of the Secretary, has failed to
comply with the provisions of the Executive Order. 85
Footnotes
3. Under the Rehabilitation and Veterans Readjustment Acts [1901-1904]
1901 Affirmative action clause waivers

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Go to Supplement
OFCCP regulations issued under 503(c) of the Rehabilitation Act of 1973 86 and
402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 87 provide that
the head of a contracting agency, with the approval of the Director of the OFCCP, may
exempt specific contractors or contracts by waiving part or all of the affirmative action
clause requirements when they mutually determine that special circumstances in the
national interest require such action concerning workers with disabilities 88 and
disabled and Vietnam-era veterans. 89
Waivers may also be granted to groups or categories of contracts or subcontracts, where
it is in the national interest and impracticable to act on each waiver request individually,
and where waivers will substantially contribute to convenience in the administration of
the statutes. 90
Observation: Although 503(c) of the Rehabilitation Act authorizes waivers with

respect to "a particular contract or subcontract," it does not authorize blanket
exemptions. Furthermore, the Veterans Readjustment Act does not contain any waiver
provision. Thus, the Secretary of Labor and the OFCCP do not have the authority to
grant such waivers despite contrary claims in the regulations. A spokesperson from the
OFCCP has indicated that no such waivers have ever been granted.
Recommendation: In the event the OFCCP attempts to exercise the waiver

regulations, concerned individuals may assert that the agency is violating the
separation of powers principle of the U.S. Constitution, and that any such waiver is
unconstitutional.
1901 ----Affirmative action clause waivers [SUPPLEMENT]
Regulations:

Footnotes
Footnote 86. 29 USCS 793(c); Ex Or 11758 3.
Footnote 88. 41 CFR 60-741.3(b)(1).
Footnote 89. 41 CFR 60-250.3(b)(1).
Footnote 90. 41 CFR 60-250.3(b)(1), 60-741.3(b)(1).
1902 Waivers for contractors subject to noncompliance proceedings

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Go to Supplement
If the OFCCP takes enforcement action against a contractor for noncompliance with the
Rehabilitation Act 91 or the Veterans Act, 92 no agency may grant a waiver from
affirmative action clause requirements without prior approval of the Director of the
OFCCP.
Observation: The poor drafting of these regulatory provisions is evident on two

counts. First, affirmative action clause waivers are already prohibited without the
concurrence of the OFCCP Director in all circumstances. 93 Thus, no additional
limitation on the issuance of such waivers is added by these provisions. Second, the
provisions do not specifically prevent the heads of agencies from granting waivers of
regulatory (as opposed to statutorysee 1904 requirements without the approval of
the Director. Thus, the anomalous situation could arise in which the head of a
contracting agency waives the regulatory requirements for a contractor who may have
been found in noncompliance with statutory requirements by the OFCCP.
1902 ----Waivers for contractors subject to noncompliance proceedings
[SUPPLEMENT]
Regulations:

Footnotes
Footnote 91. 41 CFR 60-741.30.
Footnote 92. 41 CFR 60-250.30.
Footnote 93. 1901.
1903 Withdrawal of waivers

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The Director of the OFCCP may withdraw a waiver of affirmative action clause
requirements when necessary or appropriate to achieve the purposes of the Rehabilitation
Act 94 or the Veterans Act. 95
Such withdrawals do not apply to contracts or subcontracts awarded prior to the
withdrawal, except for procurement contracts entered into by formal advertising or
restricted formal advertising. In the latter case, the withdrawal will not apply unless it is
made more than ten calendar days before the opening of the bids. 96
1903 ----Withdrawal of waivers [SUPPLEMENT]
Regulations:

Case authorities:
To establish constructive discharge claim, Title VII plaintiff must prove deliberateness of
employer's action, and intolerability of working conditions. Troutt v Charcoal Steak
House (1993, WD Va) 835 F Supp 899, 63 BNA FEP Cas 452.
Footnotes
Footnote 94. CFR 60-741.3(c).
Footnote 95. 41 CFR 60-250.3(c).
Footnote 96. 41 CFR 60-741.3(c), 60-250.3(c).
1904 National security exemptions

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The head of a contracting agency, without approval of the Director of the OFCCP, may
exempt a contract or subcontract from the requirements of the affirmative action
regulations if it is essential to national security to do so, and if the award of the contract
without compliance with the regulations is necessary to national security. After making
such a determination, the head of the contracting agency must notify the OFCCP Director
in writing, within 30 days. 97
Observation: The OFCCP has no statutory authority to grant blanket exemptions

from the Rehabilitation Act or any exemptions at all from the requirements of the
Veterans Act. 98 However, exemptions from regulatory requirements do not create
the same types of problems as do exemptions from statutory requirements.
1904 ----National security exemptions [SUPPLEMENT]
Regulations:
Footnotes
Footnote 97. 41 CFR 60-250.3(b)(2), 60-741.3(b)(2).
Footnote 98. 1901.
4. Under Other Federal Statutes [1905-1908]
1905 Regulatory Flexibility Act

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Small businesses and other organizations of relatively small size may obtain some relief
from the burdens of regulations issued by the EEOC and other federal enforcement
agencies under the Regulatory Flexibility Act. 99 It is the purpose of this Act to compel
agencies, consistent with the objectives of applicable statutes, to fit regulatory and
informational requirements to the scale of the businesses or other organizations subject to
regulation. 1
Among other things, the Act requires agencies to publish in the Federal Register
descriptions and summaries of upcoming regulations expected to have a significant
economic impact on a substantial number of small entities, 2 to prepare and make
available for public comment regulatory flexibility analyses describing proposed rules,
significant possible alternatives, and their impact on small entities, 3 and to give small
entities an opportunity to participate through public notice and hearings utilizing
procedural rules that reduce the cost and complexity of participation. 4 Agencies are
also required to review their rules periodically, after public comment, to determine
whether there is a continuing need for them. 5 However, any opportunity to directly
challenge by court action the appropriateness of an agency rule on the basis of the Act's
requirements has been specifically excluded by the Act. Nevertheless, the Act calls for
the Chief Counsel for Advocacy of the Small Business Administration to monitor agency
compliance with the Act, to report on this matter to the President and to the small
business and judiciary committees of each chamber of Congress, and to appear as amicus
curiae in any action brought in a federal court to review a rule for reasons outside the Act
in order to present his views with respect to the effect of the rule on small organizations.
6
Observation: While the Act's requirements relating to newly proposed rules may
have a significant impact in the short run, the most important aspect of the Act over the
long run will be its requirement that each agency review the rules it has already issued
to determine whether they should be continued without change, or should be amended
or rescinded, consistent with the stated objectives of applicable statutes, to minimize
any significant economic impact on a substantial number of small organizations.
1905 ----Regulatory Flexibility Act [SUPPLEMENT]
Statutes:
5 USCS 611, amended in 1996, provides for judicial review of agency compliance
with statutory requirements, the time for seeking review, and other specifics with regard
to judicial review. 5 USCS 801 et seq., enacted in 1996, provide for congressional
review of agency rulemaking.
Case authorities:
Regulatory Flexibility Act does not apply when head of agency certifies that rule or
regulation will not affect substantial number of small business entities; in such case, there
is no presumption against preemption of state insurance law under McCarran-Fergusen
Act, 15 USCS 1011 et seq. State ex rel. Todd v United States (1993, CA10 Kan) 995
F2d 1505.
Footnotes
Footnote 3. 5 USCS 603-607.
Footnote 6. 5 USCS 611, 612.
1906 Paperwork Reduction Act

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The federal Paperwork Reduction Act 7 is intended to minimize the time, effort, and
financial resources expended by individuals and small businesses in complying with
federal agency reporting requirements and information gathering activities. 8
Among other things, the Act establishes the Office of Information and Regulatory Affairs
(OIRA) within the Office of Management and Budget (OMB), 9 with authority to:
develop and implement guidelines on information disclosure and confidentiality; 10
monitor compliance with the federal Privacy Act; 11
review and approve agency information collection request forms; 12
determine whether the collection of particular information is necessary; 13
establish requirements for agency audits of all major information systems; 14
disapprove any request by an agency for the collection of information; 15
review, at least once every three years, the information management activities of each
agency to ascertain their adequacy and efficiency. 16
The Act also requires individual agencies to:
reduce to the appropriate and practicable extent the burden on persons supplying
information to the agency; 17
submit to the OIRA each proposed information request form for approval. 18
Before approving or disapproving a proposed information collection request from an
agency, the OIRA must give interested persons an opportunity to be heard and to submit
written statements of their views. To the extent that the OIRA determines that the
collection of particular information by an agency is unnecessary, the agency cannot
engage in collection. 19 Furthermore, no person can be penalized for failing to maintain
or provide information unless the collection request form contains a current OIRA
control number, or states that it is not subject to the requirements of the Act. 20
The OMB has issued regulations under the Act. 21
1906 ----Paperwork Reduction Act [SUPPLEMENT]
Statutes:
44 USCS 3501 et seq., amended in 1995, furthers the goals of the Paperwork
Reduction Act to have federal agencies become more responsible and publicly
accountable for reducing the burden of federal paperwork on the public. The Act
provides that with respect to information dissemination, federal agencies cannot, except
where specifically authorized by statute (1) establish an exclusive, restricted, or other

distribution arrangement that interferes with timely and equitable availability of public
information to the public; (2) restrict or regulate the use, resale, or redissemination of
public information by the public; (3) charge fees or royalties for resale or redissemination
of public information; or (4) establish user fees for public information that exceed the
cost of dissemination.
Case authorities:
Airplane parts importer lacks standing to maintain claim under Paperwork Reduction Act
(44 USCS 3501 et seq.), where importer challenges investigatory circular or
questionnaire distributed to its customers by federal agencies, because importer was not
asked to provide information and asserts no direct injury from alleged failure to comply
with 3512. Wag-Aero, Inc. v United States (1993, ED Wis) 837 F Supp 1479.
Footnotes
Footnote 8. 44 USCS 3501(1), 3502(3).
As to the Privacy Act, generally, see 1992 et seq.
Footnote 15. 44 USCS 3504(h)(5), 3507.
1907 Title VII

View Entire Section
The only administrative exemption authorized by Title VII of the Civil Rights Act of
1964 relates to the Act's reporting requirements. 22 Under the Act 23 and pertinent
EEOC regulations, any employer, 24 employment agency, union, 25 or joint
labor-management training committee 26 that believes that the application to it of any of
the Act's reporting requirements would result in undue hardship may apply to the
Commission for an exemption.
Footnotes
Footnote 22. As to reporting requirements under Title VII, generally, see 1909 et seq.
Footnote 24. 29 CFR 1602.10, 1602.53.
Footnote 25. 29 CFR 1602.25.
Footnote 26. 29 CFR 1602.18.
1908 National Apprenticeship Act

View Entire Section
Under the National Apprenticeship Act of 1937, 27 a request for an exemption from the
equal opportunity requirements of the Labor Department's regulations may be made in
writing to the Secretary of Labor, containing a statement of the reasons supporting the
request. General or specific exemptions may be granted for good cause.
Whenever a state apprenticeship council grants an exemption from part or all of the equal
opportunity requirements of a state plan, 28 it must notify the DOL and explain the
reasons for granting the exemption, if it affects a substantial number of employers. 29
Footnotes
Footnote 28. As to state plans, generally, see Employment Coordinator EP-33,400 et
seq.
D. Recordkeeping and Reporting [1909-1948]
Research References
18 USCS 1001; 29 USCS 50 et seq., 626, 1501 et seq.; 42 USCS 2000e-8,
2000e-12, 12117
Ex Or 11246
7 CFR Part 15; 10 CFR Part 4; 13 CFR Part 112; 14 CFR Part 379; 15 CFR Part 8; 20
CFR Part 629; 22 CFR Part 141; 24 CFR Part 1; 28 CFR Part 42; 29 CFR Parts 30,
31, 516, 1620; 32 CFR Part 300; 41 CFR Parts 60-1, 60-2, 60-4, 60-250, 60-741,
61-250; 43 CFR Part 17; 45 CFR Parts 80, 611, 1110, 1203; 49 CFR Part 21
1. Under Title VII [1909-1927]
1909 An overview
View Entire Section
Title VII generally requires employers, 30 labor organizations, 31 and joint
labor-management training committees 32 to make and preserve certain employment
records and make certain reports concerning their employment activities and practices,
and authorizes the EEOC to prescribe such requirements as are necessary to carry out the
purposes of the statute. 33 The EEOC has not prescribed requirements for employment
agencies.
The EEOC's recordkeeping requirements for unions and joint apprenticeship committees
supersede any conflicting provisions of state or local law. In particular, any state or local
laws prohibiting inquiries and recordkeeping with respect to race, color, national origin,
or sex do not apply to inquiries required to be made under applicable EEOC regulations
and under the instructions accompanying forms EEO-2 or EEO-3. 34
Observation: For information about federal recordkeeping requirements in general,

check the "Guide to Record Retention Requirements," last revised in 1989. You may
obtain the Guide for $12 from the Superintendent of Documents, U.S. Government
Printing Office, Washington, D.C 20402. Ask for stock # 02200301123-4.
State aspects: For discussion of state job discrimination statutes which require or
permit employers to keep records and submit reports relating to protected classes of
employees, see Employment Coordinator EP-35,200 et seq.
Footnotes
Exemption from Title VII's recordkeeping and reporting requirements is discussed at
1907.
Footnote 34. 29 CFR 1602.29.
1910 EEOC's authority to investigate alleged noncompliance with reporting and

recordkeeping requirements
View Entire Section
When the EEOC receives an allegation, or has reason to believe that its reporting or
recordkeeping requirements under Title VII have not been complied with, it may conduct
an investigation of the alleged failure to comply. 35
Footnotes
Footnote 35. 29 CFR 1602.56.
1911 Confidentiality of information

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The confidentiality of data collected by the EEOC is protected under Title VII. For
example, it is unlawful for any officer or employee of the Commission to make public in
any manner any information obtained prior to the institution of a proceeding under Title
VII concerning that information. 36 Title VII also provides that violations of the
confidentiality provision will subject an EEOC officer or employee to fines and
imprisonment. 37
Similarly, information furnished to state or local agencies is provided only on the
condition that it not be made public by the recipient agency prior to the institution of a
related proceeding under state or local law. 38 If this condition is violated, the EEOC
may decline to honor subsequent requests for information from that agency. 39
On the other hand, disclosure of EEO-1 forms 40 by agencies other than the EEOC is
not prohibited under Title VII. Information contained in such forms has most often been
held not to constitute trade secrets or otherwise confidential information, disclosure of
which would cause harm to an employer's competitive position. 41
Footnotes
Footnote 36. 1957.
Footnote 38. 1958.
Footnote 40. As to employers' EEO-1 forms, see 1913.
As to government contractors' EEO-1 forms, see 1935.
Footnote 41. Natural Resources Defense Council, Inc. v Securities & Exchange Com.
(1977, DC Dist Col) 432 F Supp 1190, 14 BNA FEP Cas 1544, 14 CCH EPD 7647,
CCH Fed Secur L Rep 96057, revd on other grounds 196 App DC 124, 606 F2d 1031,
1912 Requirements for employers

View Entire Section
Beyond the reporting requirements involving EEO-1 reports, 42 the EEOC has not
adopted a general requirement that records be made or kept for the purposes of enforcing
Title VII. The Commission has specifically reserved the right to impose additional
recordkeeping and reporting requirements on individual employers or groups, however,
whenever such records or reports, in the judgment of the Commission, (1) are necessary
for the effective operation of the EEO-1 reporting system or of any special or
supplemental reporting system, or (2) are further required to accomplish the purposes of
Title VII. 43
On the other hand, where an employer does keep personnel or employment records, such
as requests for reasonable accommodation, application forms or other records having to
do with hiring, promotion, demotion, transfer, layoff, termination, rates of pay, or

selection for training or apprenticeship, the employer must preserve these records for a
period of one year from the date of the making of the record, or for one year from the
date of the personnel action involved, whichever occurs later. 44 The EEOC has
proposed extending the records retention period under 29 CFR 1602.14(a) to one year
for all positions, including positions of a temporary or seasonal nature. 45
If an employer prematurely destroys employment applications in violation of these rules,
the EEOC will assume, for its investigatory purposes, that all successful applicants were
qualified at the time of hiring and that any parties charging unlawful employment
practices were also qualified. 46
The EEOC has issued proposed regulations incorporating into the general recordkeeping
requirements the specific recordkeeping requirements of the Uniform Guidelines on
Employee Selection Procedure. 47
Footnotes
Footnote 42. 1913.
Footnote 43. 29 CFR 1602.10, 1602.12.
Footnote 44. 29 CFR 1602.14(a).
Footnote 45. Prop 29 CFR 1602.7, 54 Fed. Reg. 6551, 2/13/89.
Footnote 47. Prop 29 CFR 1602.57, 54 Fed Reg. 6551, 2/13/89.
1913 Employer's EEO-1 report

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Every employer who has 100 or more employees and is subject to Title VII must file a
report form prepared by the EEOC, known officially as Standard Form 100, but popularly
called "EEO-1." It is the responsibility of each employer to retain at all times at each
reporting unit, or at company or divisional headquarters, a copy of the most recent EEO-1
filed for each unit and to make that copy available if requested by an officer, agent, or
employee of the Commission. 48 If an employer is engaged in activities for which the
categories used in EEO-1 are not readily adaptable, special reporting procedures may be
required. In such a case, the employer should submit to the EEOC or its delegate a
specific proposal for an alternative reporting system prior to the date on which the report
is due. 49
If permitted by state law, employers may acquire the information necessary for
completion of EEO-1 either by visual surveys of the work force or by the maintenance of
records as to the ethnic identity of the employees. If the employer chooses to keep
records that show the racial or ethnic identity of members of the work force, the EEOC
recommends that the employer keep such records separate from each employee's basic
personnel form and from other records available to those responsible for personnel
decisions. 50
The EEOC supplies copies of the EEO-1 to every employer known to it to be subject to
the reporting requirements, but it is the responsibility of all covered employers to obtain
necessary supplies of the form prior to the filing date from the EEOC or its delegate. 51
1913 ----Employer's EEO-1 report [SUPPLEMENT]
Case authorities:
Nonprofit organization that refused to file employers' information report (EEO-1) with
EEOC on ground that EEOC did not have jurisdiction over it, as required by EEOC's
regulations, may judicially challenge enforcement of such regulations without first
exhausting administrative remedies, because procedures provided by such administrative
remedies are only for those who claim that application of regulations causes undue
hardship, which plaintiff was not claiming. EEOC v Association of Community
Organizations for Reform Now (1995, ED La) 67 BNA FEP Cas 508.
Footnotes
Footnote 49. 29 CFR 1602.10.
Footnote 50. 29 CFR 1602.13.
1914 Employers charged with discrimination

View Entire Section
Different record-preservation requirements apply to employers who have been charged
with an unfair employment practice in violation of Title VII. The charged employer must
preserve all personnel records relevant to the charge or action until final disposition. The
phrase "personnel records relevant to the charge" includes personnel or employment
records relating to the aggrieved person and to all other employees holding positions
similar to that held or sought by the aggrieved person, and application forms or test
papers completed by an unsuccessful applicant and by all other candidates for the same
position as that for which the aggrieved person applied and was rejected. 52 For
example, an employer violated the record-preservation requirement by destroying clock
charts and daily reports generated by its security guards, since the documents were
"records having to do with demotion or termination" 53 and thus were personnel or
employment records that should have been kept. The employer's argument that the
documents were merely "performance" records kept for insurance audit purposes was
untenable in light of its security manager's testimony that the documents were routinely
used for determining whether disciplinary action should be taken against a guard, and
were in fact relied on in disciplining and ultimately firing the plaintiff. Thus, the plaintiff
was entitled to the benefit of a presumption that the destroyed documents would have
bolstered her case. 54
The date of the final disposition of the charge or action is the date of expiration of the
statutory period within which the aggrieved person may bring an action, or, when an
action is brought, the date on which litigation is terminated. 55 Thus, an employer
required to preserve documents must do so until the final disposition of all litigation in
which those records may be relevant, or until enough time has elapsed after the filing of
the court complaint to permit the defense of laches, whichever is later. 56
Footnotes
Footnote 52. 29 CFR 1602.14.
Footnote 53. 1912.
Footnote 54. Hicks v Gates Rubber Co. (1987, CA10) 833 F2d 1406, 45 BNA FEP Cas
608, 44 CCH EPD 37542.
Footnote 55. 29 CFR 1602.14.
Footnote 56. EEOC v C.M.I., Inc. (1988, DC Kan) 1988 US Dist LEXIS 12147.
As to laches, generally, see 2245 et seq.
1915 Union's EEO-3 report

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Every labor organization subject to Title VII 57 must file with the EEOC or its delegate
a copy of Local Union Equal Employment Opportunity Report EEO-3, if the labor
organization has 100 or more members at any time during the 12 months preceding the
due date of the report, and is either an independent or unaffiliated union, or a local union.
The EEOC has issued a proposed regulation that would extend the filing requirements for
EEO-3 reports from local unions from once per year to once every two years, in order to
reduce the reporting burden in furtherance of the Paperwork Reduction Act. 58

A "local union" is a labor organization that performs, in a specific jurisdiction, the
functions ordinarily performed by a local union. Such an organization is required to
report whether or not it is formally designated as a local union. 59 Each reporting union
must retain at all times, among the records maintained in the ordinary course of its
affairs, a copy of the most recent report filed, and the copy must be made available to any
officer, agent, or employee of the EEOC who requests it. 60
1915 ----Union's EEO-3 report [SUPPLEMENT]
Case authorities:
Union, which violated 42 USCS 2000e-8(c)(3) by failing to file with EEOC executed
copies of its Equal Employment Opportunity Local Union Report (Report EEO-3) for
particular years, did not separately violate statute when it failed to produce copies of
reports for those years, because union was required to keep on file only its most recent
report. EEOC v Laborers' Int'l Union of N. Am., Local 100 (1994, SD Ill) 65 BNA FEP
Cas 1569.
Footnotes
Footnote 57. As to coverage of labor organizations under Title VII, see 77 et seq.
Footnote 58. 50 Fed. Reg. 31196, 8/1/85.
Footnote 59. 29 CFR 1602.22.
Footnote 60. 29 CFR 1602.26.
1916 Records required to complete EEO-3 report

View Entire Section
In addition to the EEO-3 reporting requirements, every local, independent, or unaffiliated
union with 100 or more members must make such records as are necessary for the
completion of EEO-3. 61 All such records kept solely for the purposes of EEO-3 must
be preserved for a period of one year from the due date of the report for which they were
compiled. Other membership or referral records (including applications) made by a
union also must be preserved for a period of one year from the date of their making. 62
Footnotes
Footnote 61. 29 CFR 1602.27.
Footnote 62. 29 CFR 1602.28(a).
1917 Unions charged with discrimination

View Entire Section
If a charge of discrimination has been filed against a union, or an action under Title VII
has been instituted against it, it must preserve all records relevant to the charge or action
until final disposition. The date of "final disposition of the charge or action" means the
date of expiration of the statutory period within which the aggrieved person may bring an
action, or, when an action is brought, the date on which litigation is terminated. 63
Footnotes
Footnote 63. 29 CFR 1602.28(a).
1918 Requirements for joint labor-management apprenticeship committees

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Every entity subject to Title VII that controls an apprenticeship program must maintain a
list, in chronological order, of the names and addresses of all persons who have applied
to participate in the program, including the dates on which such applications were
received. 64 The list must contain a notation of the sex of each applicant and of the
applicant's identification as "White," "Black," "Hispanic," "Asian," "Pacific Islander", or
"American Indian or Alaskan Native." 65
The EEOC defines an applicant to be a person who files a formal application or in some
informal way indicates a specific intention to be considered for admission to an
apprenticeship program. Thus, a person who makes an informal, casual inquiry about an
apprenticeship program, or about apprenticeship in general, is not considered to be an
applicant by the EEOC. 66
In lieu of maintaining the chronological list, persons required to compile the list may
maintain in their files written applications for participation in the apprenticeship program,
as long as each application form contains a notation of the date the form was received,
the address of the applicant, the sex, and the race, color, or national origin of the
applicant. 67 Either form of information must be preserved for a period of two years
from the date the application was received, except that in those instances where an annual
report is required by EEOC regulations, 68 the person required to file the report must
preserve the list or forms for a period of two years or for the period of a successful
applicant's apprenticeship, whichever is longer. 69
Footnotes
Footnote 64. As to recordkeeping requirements applicable to sponsors of apprenticeship
programs registered with the Department of Labor, see 1945.
Footnote 65. 29 CFR 1602.20(b).
Footnote 66. 29 CFR 1602.20(b).
Footnote 67. 29 CFR 1602.20(c).
Footnote 68. 1919.
Footnote 69. 29 CFR 1602.21(a).
1919 Joint committee's EEO-2 report

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Certain joint labor-management committees that are subject to Title VII 70 and that
control apprenticeship programs must comply with reporting requirements of the EEOC.
The applicable reporting form is called Apprenticeship Information Report EEO-2.
Committees obligated to file copies of the EEO-2 are those that (1) have five or more
apprentices enrolled at any time during August and September of the reporting year, and
(2) represent at least one employer sponsor and at least one labor organization sponsor
that are subject to Title VII. 71
Reports other than EEO-2 regarding apprenticeship procedures can also be required in
individual cases whenever the EEOC judges that special or supplemental reports are
necessary to accomplish the purposes of Title VII. 72 It is the responsibility of all
covered committees to obtain from the Commission or its delegate necessary supplies of
form EEO-2. 73
Footnotes
Footnote 70. As to the coverage of such committees by Title VII, see 94.
Footnote 71. 29 CFR 1602.15.
As to which employers and which labor organizations are subject to Title VII, see 36
et seq.
Footnote 72. 29 CFR 1602.19.

Footnote 73. 29 CFR 1602.15.
1920 Records required to complete EEO-2 report

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Every person required to file form EEO-2 must make or keep such records as are
necessary for its completion, 74 and those records must be preserved for a period of one
year from the due date of the report for which they were compiled. 75 Furthermore,
every covered committee must retain at all times among its records a copy of the most
recent EEO-2 report filed and make it available if requested by an officer, agent, or
employee of the Commission.
Except to the extent inconsistent with the law or regulation of any state or local fair
employment practices agency, or of any other federal or state agency, other records
relating to apprenticeship besides those necessary to be kept in order to complete form
EEO-2 must be kept for a period of two years from the date of the making of the record.
76
Footnotes
Footnote 74. 29 CFR 1602.20(a).
Footnote 75. 29 CFR 1602.21(a).
Footnote 76. 29 CFR 1602.21(b).
1921 Joint committees charged with discrimination

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If a charge of discrimination has been filed against an organization required to report on
form EEO-2, the respondent must preserve all records relevant to the charge or action
until final disposition. The date of final disposition of the charge or action is the date of
expiration of the statutory period within which the aggrieved person may bring an action,
or, when an action is brought, the date on which such litigation is terminated. 77
Footnotes
Footnote 77. 29 CFR 1602.21(b).
1922 Political jurisdictions' EEO-4 reports

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All states and other political jurisdictions having 100 or more employees are required to
file a copy of "State and Local Government Information Reports EEO-4." EEOC also
requests an annual sample of the EEO-4 from political subdivisions with 15 to 99
employees. 78 The sample is rotated, so that smaller jurisdictions do not have to file in
consecutive years.
States must file a separate EEO-4 report for each function listed on the EEO-4 Summary
Sheet (up to a maximum of fifteen separate forms) for each Standard Metropolitan
Statistical Area (SMSA), and a maximum of 15 forms for the rest of the state to cover
employees not employed in SMSA's. States must also file summary sheets.
Political jurisdictions other than states that have 250 or more employees must file one
form for each function performed by the jurisdiction, up to a maximum of fifteen forms,
plus a summary sheet. Jurisdictions with fewer than 250 employees need only file one
report for the entire jurisdiction. Both must file a copy of each report and a list of
agencies which were not, but which should have been included. 79
A political jurisdiction claiming that preparation or filing of an EEO-4 would create
undue hardship may apply to the EEOC for an exemption, by submitting a specific
proposal for an alternate reporting system, before the EEO-4 is due. 80
Each political jurisdiction must retain at all times a copy of the EEO-4 at its central office
for three years, and must make it available upon request by an agent of the Commission.
81
The EEOC may also require other reports from individual political juridictions as
necessary to accomplish Title VII's purposes. 82
Footnotes
Footnote 78. 29 CFR 1602.32(a).
Footnote 79. EEOC Form 164, State and Local Government Information (EEO-4)
Instruction Booklet.
Footnote 80. 29 CFR 1602.35.
Footnote 81. 29 CFR 1602.32(a).
Footnote 82. 29 CFR 1602.37.
1923 Elementary and secondary schools' EEO-5 reports

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Go to Supplement
Every public elementary and secondary school system or district and every separately
administered school with 15 or more employees must file an EEO-5 report. 83 This is
also known as a Form 168. There are two parts to the EEO-5, one part for the school
system or district as a whole and another part for each school within the system or
district. Reports must be filed by November 30 in even numbered years, by those
districts, systems, and schools which are informed by the EEOC that they must file. 84
Elementary and secondary School systems and districts, must file Report EEO-5 if the
elementary and secondary school systems have 100 or more employees, or if EEOC has
requested the filing of a report from a smaller system with 15 or more employees. 85
A school, school system, or district claiming that the preparation or filing of an EEO-5
would create an undue hardship may apply to the EEOC for a special reporting procedure
by submitting a written proposal for alternative reporting before the report is due. 86
Any personnel or employment record made or kept by a school system, district, or
individual school must be preserved for two years from the date that the report was made
or from the date of the personnel action involved, whichever occurs later. 87
1923 ----Elementary and secondary schools' EEO-5 reports [SUPPLEMENT]
Regulations:
As amended in 1995, 29 CFR 1602.44 is worded in terms of school systems or districts
(rather than school systems, school districts, or individual schools).
Footnotes
Footnote 83. 29 CFR 1602.39.
Footnote 84. EEOC Forms 168A and B, Elementary-Secondary Staff Information
(EEO-5) Instructions for Filing and Recordkeeping Requirements.
Footnote 85. 29 CFR 1602.41.
Footnote 86. 29 CFR 1602.44.
Footnote 87. 29 CFR 1602.40.
1924 Higher education institutions' EEO-6 reports

View Entire Section
Every institution of higher learning, including public and private institutions, institutional
systems, colleges, universities, community colleges, and junior colleges, with 15 or more
employees, must file a Higher Education Staff Information Report EEO-6. 88 The
report must be filed in odd-numbered years, by November 30 of the reporting year. A
separate form must be filed for each main or branch campus or separate administrative
office of an institution where fifteen or more full-time employees work.
The main campus of an institution with more than one campus is usually the campus with
the most comprehensive program and is the location of the central administrative office,
unless that office is reported to be at a different location. A branch campus is one that
has a relatively permanent administration, offers an organized program of at least 2 years,
not just courses, and is located beyond a reasonable commuting distance from the main
campus. 89
An institution which claims that preparation of filing of an EEO-6 would create an undue
hardship may apply to the EEOC for an alternative proposed reporting procedure no later
than 45 days before the EEO-6 must be filed. 90
The EEOC may also require additional reports as necessary to accomplish Title VII's
purposes. 91
Footnotes
Footnote 88. 29 CFR 1602.48.
Footnote 89. EEOC Form 221, Higher Education Staff Information (EEO-6) Instruction
Booklet.
Footnote 90. 29 CFR 1602.53.
Footnote 91. 29 CFR 1602.54.
1925 Requirements in conciliation agreements

View Entire Section
At a minimum, when the EEOC enters into a conciliation agreement with a respondent,
the agreement will require the respondent (1) to supply reports to enable the Commission
to monitor the implementation and effect of its policies and procedures, 92 and (2) to
submit revised or recently developed policies and procedures to the Commission for
review and comment prior to implementation. 93
In addition, the Commission may require:
that the respondent maintain for a stated number of years records of hourly paid
personnel assignments and actions, and that the Commission be allowed, on reasonable
notice, to inspect and copy these records; these records would include all applications for
hourly employment and any actions on them, all postings of vacancies, all bids or
requests for transfer submitted and action on them, all personnel folders, and all periodic
reports otherwise required by the agreement; 94
that the respondent file quarterly reports with the EEOC, setting forth a detailed
summary of the steps taken in implementation of the conciliation agreement; for
example, quarterly reports may be required concerning actions taken pursuant to requests
from affected class members who request transfers, 95 or detailing the progress made in
attaining hiring, transfer, and promotion goals. 96
Footnotes
1926 Consequences of falsification

View Entire Section
Go to Supplement
According to the EEOC, the making of willfully false statements in Title VII reports is a
violation of the United States Criminal Code, 97 for which violators may be punished
by a fine of up to $10,000, imprisonment of up to five years, or both. 98
1926 ----Consequences of falsification [SUPPLEMENT]
Statutes:
The Violent Crime Control and Law Enforcement Act of 1994, PL 103-322, replaces all
specific fines in the penalty provisions of USCS Title 18 with "under this title."
Footnotes
Footnote 97. 29 CFR 1602.8, 1602.23, 1602.16.
1927 Effect of reliance on EEOC guidance

View Entire Section
Title VII provides that no one can be punished for failure to publish or file any
information required by the EEOC if the failure was due to a mistake that was made in
good-faith reliance on, and in conformity with, EEOC instructions. 99
Footnotes
Footnote 99. 42 USCS 2000e-12(b)(2).
2. Under the Age Discrimination in Employment Act [1928-1932]
1928 An overview
View Entire Section
The ADEA generally requires employers, 1 employment agencies, 2 and labor
organizations 3 to keep necessary records. 4
No particular order or form of records is
required under the ADEA. The Act's obligations are met if the necessary information can
be easily obtained from data kept in some form, or if the required data already exists in
records kept for other purposes. 5
Similarly, the EEOC has not adopted any official form for reporting information to it.
Every person required to maintain records must prepare from the records and submit such
reports as are requested by the Commission in writing. 6
Footnotes
Footnote 1. 1930.
Footnote 2. 1932.
Footnote 3. 1931.
Footnote 4. 29 USCS 626(a); 29 CFR 1627.1-1627.7.
As to administrative exemptions from the ADEA's recordkeeping requirements, see
1897.
1929 Where must records be kept

View Entire Section
All required records must be kept safe and accessible at the place of employment,
employment application, or membership application, or at a central record-keeping
office. The records must also be available during normal business hours for inspection
by an authorized representative of the EEOC. If the records are kept in a central
record-keeping office, they must be made available at the office at which they would
otherwise be kept within 72 hours of a request from the Commission or its authorized
representative. 7
Footnotes
1930 Employer's obligations

View Entire Section
Each employer subject to the ADEA must keep for three years records on each employee
containing the following information:
(1) name;
(2) address;
(3) date of birth;
(4) occupation;
(5) rate of pay; and
(6) compensation earned each week. 8
The following records must be kept for one year after the date of a personnel action to
which they relate:
(1) records pertaining to the failure or refusal to hire any individual; 9
(2) records pertaining to the promotion, demotion, transfer, selection for training, layoff,
recall, or discharge of any employee; 10
(3) job orders submitted by the employer to an employment agency or labor organization
for recruitment of personnel for job openings; 11
(4) test papers completed by applicants or candidates for any position that disclose the
results of any employer-administered aptitude or other employment test considered by the
employer in connection with any personnel action; 12
(5) the results of any physical examination considered by the employer in connection
with any personnel action; 13
(6) any advertisements or notices to the public or to employees relating to job openings,
promotions, training programs, or opportunities for overtime work. 14
The EEOC has proposed extending the records retention requirement to one year for all
positions, including those that are of a temporary nature. 15
In addition, every employer must keep on file any employee benefit plan (such as a
pension or insurance plan), as well as copies of any seniority system and merit system
that is in writing, for the full period of the plan and for at least one year after its
termination. 16 Unwritten plans must be fully described on memoranda retained for like
periods. 17
Finally, the Commission or its authorized representative must require that any record in
the previous paragraphs that relates to an enforcement action be kept until the final
disposition of the action. 18
Footnotes
As to who is an employer subject to the ADEA, see 39 et seq.
Footnote 9. 29 CFR 1627.3(b)(1)(i).

Footnote 10. 29 CFR 1627.3(b)(1)(ii).
Footnote 12. 29 CFR 1627.3(b)(1)(iv).
Footnote 13. 29 CFR 1627.3(b)(1)(v).
Footnote 14. 29 CFR 1627.3(b)(1)(vi).
Footnote 15. Prop 29 CFR 1627.3, 54 Fed Reg. 6551, 2/13/89.
Footnote 16. 29 CFR 1627.3(b)(2).
Footnote 17. 29 CFR 1627.3(b)(2).
Footnote 18. 29 CFR 1627.3(b)(3).
1931 Labor organization's obligations

View Entire Section
Every labor organization covered by the ADEA must keep current records identifying its
members by name, address, and date of birth. 19 In addition, the labor organization
must keep, for a period of one year, a record of the name, address, and age of any
individual seeking membership in the organization. An "individual seeking membership"
is defined as a person who files an application for membership or who indicates in some
other manner a specific intention to be considered for membership. The term does not
include any individual who is serving a stated limited probationary period prior to
permanent employment and formal union membership, nor does it include a person who
merely makes an inquiry about the labor organization or, for example, about its general
program. 20
When an enforcement action is brought against a labor organization, the EEOC or its
authorized representative may require the labor organization to retain records that relate
to the action until its final disposition. 21
If a labor organization is also an employer or an employment agency under the ADEA, it
must also comply with the recordkeeping requirements for those entities. 22
Footnotes
As to the coverage of labor organizations by the ADEA, see 78 et seq.

As to recordkeeping requirements applicable to employers, see 1930.
As to recordkeeping requirements applicable to employment agencies, see 1932.
1932 Employment agency's obligations

View Entire Section
Every employment agency covered by the ADEA 23 that makes, obtains, or uses, in the
regular course of its business, any records in the following list must keep them for a
period of one year from the date of the actions to which they relate:
(1) placements; 24
(2) referrals relating to known or reasonably anticipated job openings; 25
(3) job orders from employers; 26
(4) job applications, resumes, or any other form of employment inquiry or record of any
individual that identifies his qualifications for employment; 27
(5) test papers completed by applicants or candidates for any position that disclose the
results of any agency-administered aptitude or other employment tests considered by the
agency in connection with any referrals; 28
(6) advertisements or notices related to job openings. 29
When an enforcement action is brought regarding a particular applicant, the Commission
or its authorized representative must require the agency to retain those records that relate
to the action until its final disposition. 30
If an employment agency is also an employer or a labor organization under the ADEA,
the agency must also comply with the recordkeeping requirements for those entities. 31
Footnotes
Footnote 23. As to the coverage of employment agencies by the ADEA, see 83 et seq.
Footnote 24. 29 CFR 1627.4(a)(1)(i).

Footnote 25. 29 CFR 1627.4(a)(1)(ii).
Footnote 27. 29 CFR 1627.4(a)(1)(iv).
Footnote 28. 29 CFR 1627.4(a)(1)(v).
Footnote 29. 29 CFR 1627.4(a)(1)(vi).
Footnote 30. 29 CFR 1627.4(a)(2).
As to recordkeeping requirements applicable to employers, see 1930.
As to recordkeeping requirements applicable to labor organizations, see 1931.
3. Under Executive Order 11246 [1933-1939]
1933 An overview
View Entire Section
Executive Order 11246 requires a contractor to furnish all information and reports
required by the Order, and by rules, regulations, and orders of the Secretary of Labor.
Contractors must also permit access to their books, records, and accounts by the
contracting agency and the Secretary to allow investigations to determine compliance. 32
Thus, the Director of the OFCCP, or the applicant for federal assistance, may require a
contractor to keep employment records and to furnish in the form requested, within
reasonable limits, such information as is necessary for administration of the Executive
Order. 33
Footnotes
Footnote 32. Ex Or 11246, 202(5).
Footnote 33. 41 CFR 60-1.7(a)(3).
1934 Affirmative action plan summary

View Entire Section

The OFCCP requires that each federal contractor submit a summary of its affirmative
action program to the OFCCP each year on the anniversary date of the program as a
means of measuring contract compliance. 34
Footnotes
Footnote 34. 41 CFR 60-2.14.
As to affirmative action obligations of federal contractors, generally, see 619 et seq.
1935 Government contractor's EEO-1 report

View Entire Section
Each prime contractor and subcontractor must file annually, on or before March 31st,
complete and accurate reports on Standard Form 100 (EEO-1), if the prime contractor or
subcontractor (1) is not exempt; (2) has 50 or more employees; and (3) has a contract,
subcontract, or purchase order amounting to $50,000 or more, serves as a depository of
government funds in any amount, or is a financial institution that is an issuing and paying
agent for United States savings bonds and savings notes. 35
Each person required to submit a report must file it with the contracting or administering
agency within 30 days after the award of the contract or subcontract, unless that person
has submitted a report within 12 months preceding the date of the award. Subsequent
reports are to be submitted annually or at other intervals as the Director of the OFCCP
requires. Furthermore, the Director may extend the time for filing any report. 36 Failure
to file timely, complete, and accurate reports as required constitutes noncompliance with
the prime contractor's or subcontractor's obligations under the equal opportunity clause
and is grounds for the imposition of sanctions. 37
Footnotes
Footnote 35. 41 CFR 60-1.7(a)(1).
Footnote 36. 41 CFR 60-1.7(a)(2).
Footnote 37. 41 CFR 60-1.7(a)(4).
As to sanctions under Executive Order 11246, generally, see 2017.
1936 Requirements for bidders or prospective contractors

View Entire Section
Each contracting agency must require each bidder or prospective prime contractor and
proposed subcontractor, where appropriate, to state in the bid or in writing at the outset of
negotiations for the contract (1) whether it has developed and has on file at each
establishment affirmative action programs as required by the regulations; (2) whether it
has participated in any previous contract or subcontract subject to the equal opportunity
clause; and (3) whether it has filed all reports due under the applicable filing
requirements. 38 In addition, a bidder or prospective prime contractor or proposed
subcontractor is required to submit information requested by the Director of the OFCCP
prior to the award of the contract or subcontract. When a determination has been made to
award the contract to a specific contractor, the contractor is required, prior to or after the
award, or both, to furnish any other information requested by the applicant for federal
assistance or the Director. 39
Footnotes
Footnote 38. 41 CFR 60-1.7(b)(1).
Footnote 39. 41 CFR 60-1.7(b)(2).
1937 Certification as to non-segregated employee facilities

View Entire Section
Prior to the award of any nonexempt government contract or subcontract or federally
assisted construction contract or subcontract, the contractors and subcontractors involved
must certify that the facilities from which they provide their services will not be
maintained in a segregated manner. Each agency or applicant for federal assistance must
require the prospective prime contractor, and, in turn, each prime contractor and
subcontractor must require each subsequent subcontractor to submit a certification. In
addition, the contractor must certify that a similar certificate will be obtained prior to the
award of any nonexempt subcontract. 40
The OFCCP has issued proposed regulations that would delete the certification
requirement, but continue to require contractors to maintain non-segregated facilities. 41
Footnotes
1938 Construction contract awards

View Entire Section
Contracting officers, construction contractors, and nonconstruction contractors must
notify the director of the OFCCP in writing within ten working days of the award of a
government construction contract. The notification must include the name, address, and
telephone number of the contractor, the employer identification number, the dollar
amount of the contract, the estimated starting and completion dates of the contract, the
contract number, and the geographical area where the contract is to be performed. 42 A
contractor must provide written notification to the director of the OFCCP within ten
working days of the award of any construction subcontract over $10,000 for construction
work under the contract resulting from the solicitation. 43
Footnotes
1939 Recordkeeping requirements for construction contractors

View Entire Section
A construction contractor must keep records of each employee's name, address, telephone
numbers, construction trade, union affiliation, employee identification number, social
security number, race, sex, status, dates of changes of status, hours worked per week in
the indicated trade, rate of pay, and locations where the work was performed. Where
existing records are easily understandable and retrievable, separate records are not
required. A responsible official must be designated by the contractor to keep records,
monitor employment related activity to ensure that the company EEO policy is being
carried out, and submit reports required by the government. 44
Footnotes
Footnote 44. 41 CFR 60-4.3(a)(14).

4. Under Other Federal Laws [1940-1948]
1940 Equal Pay Act

View Entire Section
The EEOC requires employers subject to the Equal Pay Act to maintain records required
by the Department of Labor with respect to employers subject to the Fair Labor
Standards Act. 45
Every such employer must preserve records made in the regular course of business
operations that relate to the payment of wages, wage rates, job evaluations, job
descriptions, merit systems, seniority systems, and collective bargaining agreements.
This includes records of any practices that describe or explain the basis for payment of
higher wages to employees of one sex than to employees of the other sex in the same
establishment and that may be pertinent to a determination of whether a wage differential
is based on a factor other than sex. 46 Records that explain the basis for payment of
wage differentials to employees of one sex in the same establishment must be retained for
at least two years. 47
Footnotes
Footnote 45. 29 CFR 1620.32(a), 29 CFR Part 516.
As to who is an employer subject to the Equal Pay Act, see 36 et seq.
Footnote 46. 29 CFR 1620.32(b).
Footnote 47. 29 CFR 1620.32(c).
1941 Americans with Disabilities Act

View Entire Section
The Americans with Disabilities Act (ADA) incorporates by reference Title VII's
provision imposing recordkeeping requirements on covered entities. 48 The ADA's
record keeping and reporting regulations do not require the creation of any new
documents, but require the same record retention requirements of Title VII. 49
The EEOC has specifically reserved the right to impose recordkeeping requirements
whenever, in its judgment, records or reports are necessary to accomplish the purposes of
the ADA, with respect to:
individuals or groups of employers; 50
joint labor-management committees, employers, and labor organizations, concerning
apprenticeship procedures; 51
labor organizations, concerning membership or referral practices or other procedures;
52
individual or groups of political jurisdictions, concerning employment practices; 53
private or public individual or groups of school systems, districts, or schools,
concerning employment practices; 54
private or public institutions of higher education, concerning employment practices. 55
Where an employer does keep personnel or employment records, such as requests for
reasonable accommodation, application forms, or other records having to do with hiring,
promotion, demotion, transfer, layoff, termination, rates of pay, or selection for training
or apprenticeship, the employer must preserve these records for a period of one year from
the date the record is made, or for one year from the date of the personnel action
involved, whichever occurs later. 56
Caution: This requirement applies to application forms and other pre-employment

records of applicants for positions known to the applicant to be of a temporary or
seasonal nature.
Also, any similar personnel or employment records made or kept by a political
jurisdiction, a school system, district, or individual school, or an institution of higher
education must be preserved by the entity for a period of two years from the date of the
making of the record or the personnel action involved, whichever occurs later.
Furthermore, in the case of an involuntary termination of an employee, the personnel
records of the terminated individual must be kept for a period of two years from the date
of termination. 57
Where a charge of discrimination has been filed, or an action brought by the Attorney
General under the ADA, the defendants, including political jurisdictions, must preserve
all records relevant to the charge or action until final disposition of the charge or action.
58 Similarly, if a charge of discrimination has been filed against a union, or an action
brought against it by the EEOC or the Attorney General, under the ADA, it must preserve
all records relevant to the charge or action until final disposition. 59 Furthermore,
where a charge of discrimination has been filed, or an action brought against an
elementary or secondary school or an institution of higher education, by the EEOC or the
Attorney General, the respondent must preserveat the central office of the school system
or district or individual school of the institution, at a separate campus or branch, or at an
individual school which is the subject of the charge or action, wherever is more
convenientall personnel records relevant to the charge or action until final disposition.
60 The date of final disposition of a charge or action is considered the date of
expiration of the statutory period within which the aggrieved person may bring an action,
or, when an action is brought, the date on which the litigation is terminated. 61
The EEOC may conduct an investigation of an alleged failure to comply with the ADA's
record-keeping or reporting requirements if it has received an allegation of
noncompliance or if it has reason to believe that noncompliance has occurred. 62
Footnotes
As to Title VII's recordkeeping requirements, see 1909 et seq.
Footnote 49. 56 Fed. Reg. 9185, 3/5/91.
Footnote 50. 29 CFR 1602.11, 1602.12;
Footnote 51. 29 CFR 1602.19.
Footnote 52. 29 CFR 1602.26.
Footnote 53. 29 CFR 1602.37.
Footnote 54. 29 CFR 1602.45.
Footnote 55. 29 CFR 1602.54.
Footnote 56. 29 CFR 1602.14(a).
Footnote 57. 29 CFR 1602.31, 1602.40, 1602.49.
Footnote 58. 29 CFR 1602.21(b), 1602.31.
Footnote 59. 29 CFR 1602.28(a).
Footnote 60. 29 CFR 1602.40, 1602.49.
Footnote 61. 29 CFR 1602.21(b), 1602.28(a), 1602.31, 1602.40, 1602.49.
Footnote 62. 29 CFR 1602.56.
1942 Rehabilitation Act and Vietnam-Era Veterans Readjustment Assistance Act

View Entire Section
Go to Supplement
OFCCP regulations governing the affirmative action obligations of government
contractors to workers with disabilities and qualified special disabled veterans require
that each contractor and subcontractor maintain records for not less than one year
regarding any complaints received and the action taken on them. They must also keep
such employment or other records as the Director of the OFCCP requires, and furnish
such information in a form required by the Director as is deemed necessary. 63
Government prime contractors and subcontractors must permit the OFCCP to have access
to their premises and business records during normal business hours. 64
Failure by contractors to maintain complete and accurate records or make an annual
update of affirmative action programs constitutes noncompliance with obligations under
the affirmative action clauses and can result in the imposition of appropriate sanctions. 65
1942 ----Rehabilitation Act and Vietnam-Era Veterans Readjustment Assistance
Act [SUPPLEMENT]
Regulations:
Footnotes
Footnote 63. 41 CFR 60-741.52(a) (Rehabilitation Act); 41 CFR 60-250.52(a)
(VEVRA).
Footnote 64. 41 CFR 60-741.53.
Footnote 65. 41 CFR 60-741.52(b).
As to sanctions, generally, see 2018.
1943 VETS-100 report required by 402 of Vietnam-Era Veterans Readjustment

Assistance Act
View Entire Section

Federal contractors must report, by job category and hiring location and on an annual
basis, to the Secretary of Labor on the number of employees in their work force who are
veterans of the Vietnam era or special disabled veterans. 66 They must also report on
the total number of new employees they hire during the period covered by the report and
the number of such employees who are veterans. 67 The Office of the Assistant
Secretary for Veterans' Employment and Training has developed the Federal Contractor
Veterans' Employment Report (VETS-100) for filing this information. A reporting
clause obligating contractors and subcontractos to follow the reporting requirements is
contained in each covered government contract or subcontract. In accordance with this
clause, a completed VETS-100 must be submitted annually no later than March 31. 68
The information provided on the VETS-100 form must be obtained through voluntary
disclosure from employees and applicants. Each contractor must invite all special
disabled veterans and veterans of the Vietnam era to identify themselves. The invitation
must specify that any information provided will be held confidential and that no adverse
treatment will occur because of disclosure or a refusal to disclose. 69
Recommendation: Employers should have each employee and applicant sign the
invitation to identify themselves as an eligible veteran and keep the documentation and
responses separate from other personnel records to ensure its confidentiality.
Employees should be requested to do this annually. These signed letters can later be
used to establish the employer's good-faith efforts to collect its data and meet its
statutory reporting obligations.
Employment data has to be collected for all permanent full-time and part-time employees
and veteran status must be determined for each of the occupational categories as of an
"ending date." The "ending date" is that chosen by the contractor at the end of any pay
period from January through March 1 of the reporting year or as of December 31 of the
previous year if the contractor has received prior written approval from the EEOC to do
so when filing its EEO-1 report. 70 Multi-establishment employers must complete a
VETS-100 form for their principal or headquarters office, each hiring location employing
50 or more people, and either a separate report for each hiring location employing less
than 50 people or consolidated reports, by state, showing such locations. 71 For
reporting purposes a "hiring location" refers to an economic unit that produces goods or
services which is usually in a single physical location. 72 Also, the same determination
of "job categories" made for EEO-1 reports 73 applies to the VETS-100 report. 74
Each contractor is ultimately responsible for obtaining the necessary VETS-100 forms
before the filing date from:
OASVET (VETS-100)
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210. 75
These reporting obligations do not change any of the affirmative action obligations for
contractors and subcontractors under the Veterans' Act. 76
Prior to the report due March 31, 1988, there were no such reporting requirements. 77
Footnotes
Footnote 66. As to who is a special disabled veteran, see 178.
Footnote 68. 41 CFR 61-250.10.
Footnote 69. 41 CFR 61-250.12.
Footnote 70. 41 CFR 61-250.10.
Footnote 71. 41 CFR 61-250.11.
Footnote 72. 41 CFR 61-250.2(b)(1).
Footnote 73. 1913.
Footnote 74. 41 CFR 61-250.2(b)(3).
Footnote 75. 41 CFR 61-250.11(d).
Footnote 76. 41 CFR 61-250.1(b).
Footnote 77. 41 CFR 61-250.10.
1944 Title VI
View Entire Section
Go to Supplement
To effect the purposes of Title VI, recipients of government funds 78 are responsible for
keeping records showing compliance with the provisions of the statute and submitting
reports to responsible officials. Recipients must have available racial and ethnic data
showing the extent to which members of minority groups are beneficiaries of federally
assisted programs. Where a recipient extends assistance to another recipient, the latter is
required to submit such a compliance report to the primary recipient as may be necessary
to enable the latter to carry out its obligations under the regulations. 79
Recipients of federal funds must permit access to their facilities and business records for
purposes of assuring compliance with the regulations. 80
1944 ----Title VI [SUPPLEMENT]
Regulations:
Footnotes
Footnote 78. As to who is a recipient of government funds, see 103 et seq.
Footnote 79. 7 CFR 15.5(b) (Department of Agriculture); 10 CFR 4.32 (Nuclear
Regulatory Commission); 13 CFR 112.9(b) (Small Business Administration); 14 CFR
379.5(a) (Civil Aeronautics Board); 15 CFR 8.7(b) (Department of Commerce); 22
CFR 141.5(b) (Department of State); 24 CFR 1.6(b) (Department of Housing and
Urban Development); 28 CFR 42.106(b) (Department of Justice); 29 CFR 31.5(b)
(Department of Labor); 32 CFR 300.7(b) (Department of Defense); 43 CFR 17.5(b)
(Department of the Interior); 45 CFR 80.6(b) (Department of Health and Human
Resources); 45 CFR 611.6(b) (National Science Foundation); 45 CFR 1110.6(b)
(National Foundation on the Arts and the Humanities); 45 CFR 1203.6(b) (ACTION);
49 CFR 21.9(b) (Department of Transportation).
379.5(b) (Civil Aeronautics Board); 15 CFR 8.7(c) (Department of Commerce); 22
CFR 141.5(c) (Department of State); 24 CFR 1.6(c) (Department of Housing and
Urban Development); 28 CFR 42.106(c) (Department of Justice); 29 CFR 31.5(c)
(Department of Labor); 32 CFR 300.7(c) (Department of Defense); 43 CFR 17.5(c)
Resources); 45 CFR 611.6(c) (National Science Foundation); 45 CFR 1110.6(c)
1944.1 Family and Medical Leave Act

View Entire Section
Under the Family and Medical Leave Act of 1993, 81 employers must make, keep, and
preserve records pertaining to compliance with the Act. 82
The Secretary of Labor may require any employer or any plan, fund, or program to
submit to the Secretary any such books or records for the Secretary's review. Submission
of books and records may be required only once during any 12-month period, unless the
Secretary has reasonable cause to believe there may exist a violation of the Act, or is
investigating a charge. 83
Footnotes
1945 National Apprenticeship Act

View Entire Section
Under the National Apprenticeship Act of 1937, 84 each sponsor of an apprenticeship
program registered with the U.S. Labor Department is required to keep records,
including: (1) a summary of the qualifications of each applicant; (2) the basis for
evaluation and selection or rejection of each applicant; (3) the records pertaining to
interviews of applicants; (4) the original application for each applicant; (5) information
relating to the operation of the program, including but not limited to job assignment,
promotion, demotion, layoff, or termination; (6) rates of pay or other forms of
compensation or conditions of work; (7) any other records pertinent to a determination of
compliance with the regulations that may be required by the Department of Labor.
Records pertaining to individual applicants, whether selected or rejected, must be
maintained in such a manner as to permit any identification of minority and female
(minority and nonminority) participants. 85
Each sponsor is also required to retain a statement of its affirmative action plan, review it
annually, and update it where necessary. 86 In addition, each sponsor is required to
maintain evidence that its qualification standards have been validated in accordance with
the requirements of the regulations. 87
Required records and any other information relative to compliance must be maintained
for five years and made available on request to the Department or other authorized
persons. 88
State Apprenticeship Councils must keep adequate records, including registration
requirements, individual program standards and registration records, program compliance
reviews and investigations, and any other records pertinent to a determination of
compliance with the regulations that are required by the Labor Department, and report to
the Department as required. 89
Footnotes
As to reporting obligations of joint labor-management apprenticeship committees subject
to Title VII, see 1918-1925.
As to apprenticeship program procedures in general, see 1825 et seq.
1946 Job Training Partnership Act

View Entire Section
Under the Job Training Partnership Act, 90 recipients of Federal funds must keep
records that are sufficient to permit the preparation of reports required by the Act and to
permit the tracing of funds expended. 91 Records and reports must be submitted to the
Labor Department (DOL), but may not be required more than once each quarter unless
specifically requested by Congress. 92 The DOL has published regulations regarding
the maintenance of records and submission of reports. 93
Footnotes
Footnote 93. 20 CFR Part 629 et seq.
1947 Migrant farm workers' protection statute
View Entire Section

Under the Migrant and Seasonal Agricultural Workers Protection Act (MSPA), 94
specific records with regard to workers' wages and related matters must be kept for three
years. 95 They must be provided to any farm labor contractor, agricultural employer, or
agricultural association to which the farm labor contractor has furnished migrant
agricultural workers. The recipient of the records also must keep them for a period of
three years from the end of the period of employment. 96
The three-year requirement for record retention does not serve as a time limitation on
suits challenging the adequacy of the records under the MSPA, although the lawful
destruction of the records after three years may create difficulties in proving their
inadequacy. 97
A person who uses migrant farm labor has an affirmative duty to obtain and maintain
payroll records, not merely in whatever form they have been submitted by a contractor,
but in a manner that meets statutory requirements. A user who accepted from a contractor
and maintained records that were obviously incomplete and erroneous failed to comply
with the Act. 98
Footnotes
Footnote 97. Calderon v Witvoet (1991, CD Ill) 764 F Supp 536, 30 BNA WH Cas 536,
119 CCH LC 35519, CCH Unemployment Ins Rep 16209A.
Footnote 98. Rivera v Adams Packing Asso. (1983, CA11) 707 F2d 1278.
1948 Under the Employee Polygraph Protection Act

View Entire Section
The Secretary of Labor may require the keeping of records necessary or appropriate for
administration of the Employee Polygraph Protection Act (EPPA). 99
An otherwise permissible polygraph test 1 by an employer covered under the EPPA is
not lawful unless the examiner of the test maintains all opinions, reports, charts, written
questions, lists, and other records relating to the test for at least three years after the test 2
including a record of the number of examinations they have conducted each day, and the
duration of each test period. 3 In addition, employers who retain an examiner must
maintain copies of all the reports and records that the examiner has provided to the
employer. 4 Furthermore, the written statement an employer is required to make in order
to administer a polygraph test in an ongoing investigation of economic loss or injury
must also be retained for three years. 5
Employers must keep all mandatorily maintained records safe and accessible either at the
location at which the examinee is employed or, if records are kept centrally, at a place
from which records may be retrieved and made available within 72 hours of notice from
the Secretary of Labor. The records must be made available for the Secretary's or an
authorized representative's inspection and copying. 6 The examiner must also keep the
mandatory records safe, and accessible at his place of business or at a central
recordkeeping office, and must make them available to the Secretary of Labor, or his
authorized representative, within 72 hours of a request for access. 7
Provided that either there is a court order or the examinee has given written permission to
the Secretary or the Secretary's representative, information that would be restricted under
the Act may be made available to the Secretary or the Secretary's representative. 8
Footnotes
Footnote 1. As to polygraph tests, generally, see 998 et seq.
Footnote 2. 29 USCS 2007(c)(2)(B).
Footnote 3. 29 CFR 801.30(a)(6).
Footnote 4. 29 CFR 801.30(a)(5).
Footnote 5. 29 USCS 2006(d)(4)(C).
E. Posting or Disclosure of Legal Rights or Other Information [1949-1955]
1949 Generally
View Entire Section

Federal and state 9 job discrimination and other fair employment practices statutes
frequently require employers and other employment entities to post notices outlining
workers' legal rights, or to make other disclosures of pertinent information to employees.
The EEOC has issued a poster that consolidates the information required to be posted
under the various federal job discrimination laws. Parties who wish to obtain the poster
should write to the EEOC's Office of Public Affairs, 1801 L St., NW, Washington, D.C.
20507.
Footnotes
Footnote 9. As to state job discrimination statutes concerning posting or disclosure of
information, see Employment Coordinator EP-35,320 et seq.
1950 Under Title VII

View Entire Section
Title VII requires that every employer, employment agency, labor organization, and joint
labor-management committee controlling an apprenticeship program post and keep
posted a notice to be prepared or approved by the EEOC summarizing the pertinent
provisions of Title VII and information pertinent to the filing of a complaint. Such
notices are to be posted in conspicuous places on the business premises where notices to
employees, applicants for employment, and members are customarily posted. 10
Willful violations of this requirement are punishable by a fine of not more than $100 for
each separate offense. 11
Footnotes
1951 Under the ADEA

View Entire Section
The ADEA requires employers, employment agencies, and labor organizations to post
certain notices informing workers of the Act's protections. These notices must be posted
in a manner that is readily observable by employees, applicants, and union members. 12
However, an employer does not have to post ADEA notices in premises located outside
the territorial jurisdiction of the United States. 13
An employer's notice must provide employees with a meaningful opportunity of
becoming aware of their ADEA rights. To this end, a notice adequate for one group of
employees does not necessarily suffice for another group working primarily at a different
location. 14
There is no private right of action to enforce the ADEA notice posting provisions. 15
The ADEA also does not contain penalties for an employer's failure to post the required
notice. However, such failure may toll the time within which an individual must file a
charge of age discrimination with the EEOC, 16 or the statute of limitations for the
filing of a suit under the ADEA. 17
Official posters that meet the Act's requirements are prepared by the EEOC. Parties that
wish to obtain the poster should contact the EEOC's Office of Public Affairs, 2401 E St.,
NW, Washington D.C. 20506.
Footnotes
Footnote 13. Osborne v United Technologies Corp. (1977, DC Conn) 16 BNA FEP Cas
586.
Footnote 14. Charlier v S. C. Johnson & Son, Inc. (1977, CA5) 556 F2d 761.
Footnote 15. Zimmerman v National Football League (1986, DC Dist Col) 632 F Supp
398, 109 CCH LC 10508.
Footnote 16. 1427.
Footnote 17. 2225.
1952 Under the ADA

View Entire Section
The Americans with Disabilities Act (ADA) requires covered entities to post notices in a
format accessible to applicants, employees, and members, describing the applicable
provisions of the ADA, in the same manner as required under Title VII. 18
Notices required by the ADA must be posted in a conspicuous location in an accessible
format, prepared or approved by the EEOC, describing the applicable provisions of the
Act. 19 The EEOC has prepared an EEO poster that satisfies the requirements of the
ADA. It can be obtained from the agency at 1801 L Street, NW, Washington, DC,
20507. 20
The ADA does not mention penalties for failure to post and does not incorporate Title
VII's penalties 21 in its enforcement section.
Footnotes
As to the posting requirements of Title VII, see 1950.
Footnote 19. 29 CFR 1601.30.
Employment Opportunity Commission, January 28, 1992, Title I.
Footnote 21. 1950.
1953 Under Executive Order 11246

View Entire Section
Executive Order 11246 obligates government contractors to post in conspicuous places,
available to employees and applicants for employment, notices setting forth the
provisions of the Order's nondiscrimination clause. 22 The Executive Order also
obligates government contractors to send to each labor union or representative of workers
with which they have collective bargaining agreements a notice of the contractor's
commitments. Copies of this notice must also be posted in conspicuous places available
to employees and applicants for employment. 23
Required language for notices is contained in the OFCCP regulations. In addition to the
employer's nondiscrimination statement, the notice contains information regarding
employees' rights and their course of action in the event of a suspected violation. 24
Footnotes
Footnote 22. Ex Or 11246 202(1).
Footnote 23. Ex Or 11246 202(3).
Footnote 24. 41 CFR 60-1.42.
1954 Under Title VI

View Entire Section
Go to Supplement
Under Department of Justice regulations setting forth minimum requirements for the
implementation of Title VI by federal agencies, agencies must require recipients of
funding, where feasible, to display prominently, in reasonable numbers and places,
posters that state that the recipients operate programs subject to the nondiscrimination
requirements of Title VI. Posters must summarize the nondiscrimination requirements,
note the availability of Title VI information from recipients and federal agencies, and
explain briefly the procedures for filing complaints. Additionally, recipients must include
information on Title VI requirements, complaint procedures, and the rights of
beneficiaries in handbooks, manuals, pamphlets, and other materials that are ordinarily
distributed to the public to describe the federally-assisted programs and the requirements
for participation in them. To the extent that recipients are required by law or regulation
to publish or broadcast program information in the news media, federal agencies and
recipients must ensure that publications and broadcasts state that the program in question
is an equal opportunity program, or otherwise indicate that discrimination in the program
is prohibited by federal law. 25
Required notices must be effectively communicated to the population eligible to be
served or likely to be directly affected by the program. Therefore, where a significant
number of the population affected by the program needs service or information in a
language other than English, the program recipient must take reasonable steps to provide
information in appropriate languages to such persons. 26
The Justice Department's requirements have been implemented by a number of agencies.
27
1954 ----Under Title VI [SUPPLEMENT]
Regulations:
Footnotes
Footnote 26. 28 CFR 42.405(d)(1).
Footnote 27. 7 CFR 15.5(d) (Department of Agriculture); 10 CFR 4.34 (Nuclear

Regulatory Commission); 13 CFR 112.9(d) (Small Business Administration); 14 CFR
379.5(c) (Civil Aeronautics Board); 15 CFR 8.7(d) (Department of Commerce); 22
CFR 141.5(d) (Department of State); 24 CFR 1.6(d) (Department of Housing and
Urban Development); 28 CFR 42.106(d) (Department of Justice); 29 CFR 31.5(d)
(Department of Labor); 32 CFR 300.7(d) (Department of Defense); 43 CFR 17.5(d)
(Department of the Interior); 45 CFR 80.6(d) (Department of Health and Human
Services); 45 CFR 611.6(d) (National Science Foundation); 45 CFR 1110.6(d)
(National Foundation on the Arts and the Humanities); 45 CFR 1203.6(d) (ACTION);
49 CFR 21.9(d) (Department of Transportation).
1955 Under 504 of the Rehabilitation Act

View Entire Section
Regulations issued by a number of agencies to implement the prohibition of
discrimination on the basis of disability contained in 504 of the Rehabilitation Act of
in 1973 28 contain notice requirements. 29
For example, under the Labor
Department's rules, a recipient of federal funds, other than a small recipient (fewer than
15 employees), 30 must take appropriate initial and continuing steps to notify applicants
and employees and their representatives that it does not discriminate on the basis of
disability in the admission or access to, or treatment or employment in, its programs and
activities. 31 The notification must also include an identification of the responsible
employee designated to coordinate the recipient's compliance efforts. 32
Methods of initial and continuing notification may include the posting of notices,
publication in newspapers and magazines, placement of notices in the recipient's
publication, and distribution of memoranda or other written communications. 33
If a recipient publishes or uses recruitment materials or publications containing general
information that it makes available to applicants or employees, it must include in those
materials or publications a statement of its nondiscrimination policy. A recipient may
meet this requirement either by including appropriate inserts in existing materials and
publications or by revising and reprinting the materials and publications. 34
Footnotes
Footnote 29. 13 CFR 113.5(d); (Small Business Administration); 28 CFR 42.505(f)
(Department of Justice); 45 CFR 84.8(a) (Department of Health and Human Services);
45 CFR 1151.4(a) (National Foundation on the Arts and Humanities); 49 CFR
27.15(a) (Department of Transportation).
Footnote 30. 29 CFR 32.9 (Department of Labor).

Footnote 33. 29 CFR 32.8(a) (Department of Labor); 45 CFR 84.8(a) (Department
of Health and Human Services Welfare); 45 CFR 1151.4(a) (National Foundation on
the Arts and Humanities); 49 CFR 27.15(a) (Department of Transportation).
Footnote 34. 29 CFR 32.8(b) (Department of Labor); 45 CFR 84.8(b) (Department
of Health and Human Services Welfare); 45 CFR 1151.4(b) (National Foundation on
the Arts and Humanities); 49 CFR 27.15(b) (Department of Transportation).
1955.1 Under migrant farm workers' protection statute

View Entire Section
Go to Supplement
The Migrant and Seasonal Agricultural Workers Protection Act (MSPA) 35 requires
each covered farm labor contractor, agricultural employer, and agricultural association
that recruits migrant agricultural workers to make a number of disclosures to workers at
the time they are recruited. For example, workers must be informed of the wage rates to
be paid, the period of employment, and the kinds of activities on which they may be
employed. 36
The information required to be disclosed must be provided in written form and in a
language common to the workers. Forms used for disclosure are available from the
Department of Labor in foreign languages. 37
The contractor or employer also must post in a conspicuous place a poster provided by
the Secretary of Labor setting forth the rights and protections afforded workers under the
MSPA. 38
The fact that a farm labor contractor does not receive a copy of the poster that must be
displayed does not relieve it of the obligation to comply with the posting requirements of
the MSPA. 39
1955.1 ----Under migrant farm workers' protection statute [SUPPLEMENT]
Statutes:
As set forth in 29 USCS 1821(a)(8), added in 1995, the worker must also be informed
whether state workers' compensation insurance is provided and, if so, specified
information about it.
Footnotes
Footnote 36. 29 USCS 1821(a) (migrant workers), 1831(a) (seasonal workers).
Footnote 37. 29 USCS 1821(g).
Footnote 38. 29 USCS 1821(b) (migrant workers), 1831(b) (seasonal workers).
Footnote 39. Calderon v Witvoet (1991, CD Ill) 764 F Supp 536, 30 BNA WH Cas 536,
119 CCH LC 35519, CCH Unemployment Ins Rep 16209A.
1955.2 Under the Employee Polygraph Protection Act

View Entire Section
The Employee Polygraph Protection Act (EPPA) requires each covered employer to post
and maintain, in conspicuous places where notices to employees and applicants are
customarily posted, a notice setting forth excerpts from or summaries of the statute's
pertinent provisions, as prepared by the Secretary of Labor. 40
Copies of the required notices must be posted in every establishment of a covered
employer and may be obtained from the local offices of the Wage and Hour Division of
the DOL. 41
Footnotes
F. Obtaining Information From the Agencies [1956-2014]
Research References
5 USCS 552, 552a; 42 USCS 2000e-5, 2000e-8, 2000e-12
29 CFR Parts 4, 70, 70a, 1601, 1610, 1611, 1621, 1626; 41 CFR Part 60-40
1. In General [1956]
1956 Generally
View Entire Section
The obligation or ability of governmental agencies concerned with job discrimination and
other employment practices to disclose publically information in their possession is
controlled by various statutes. Some laws require disclosure, while others require or
allow the agencies to withhold information.
The two main statutes affecting disclosure of information by federal agencies are the
Freedom of Information Act (FOIA) 42 and the Privacy Act. 43 The FOIA requires
broad disclosure to the public of agency records such as final opinions, orders,
administrative staff manuals, and instructions, unless one of nine specific exemptions
applies. The Privacy Act is intended to complement the FOIA by providing a framework
for maintenance and disclosure of agency records of a personal nature. It permits an
individual to determine what records pertaining to him are collected, maintained, used, or
disseminated by agencies, controls the use of such information without the consent of the
individual, gives the individual access to the information, and grants the individual an
opportunity to determine if the information in the government's possession is current and
accurate. 44
In addition to the FOIA and the Privacy Act, some agencies are subject to other, very
specific information disclosure provisions in the statutes they administer. For example,
Title VII requires the EEOC to disclose investigative information to state and local
agencies. 45 On the other hand, the statute prohibits EEOC officials from publicly
disclosing, prior to the institution of proceedings, information obtained during an
investigation. 46 However, the latter provision is limited to information collected
pursuant to Title VII, and does not apply to the OFCCP or to information collected by
that agency under the authority of Executive Order 11246. 47
To accommodate its conflicting disclosure obligations, the EEOC has taken the unusual
step of issuing guidelines as to when it will (and will not) disclose investigative
materials. 48
In addition, as required by the ADA, the EEOC and the Office of Federal Contract
Compliance Programs (OFCCP) have issued regulations that govern the disclosure of
information obtained in investigations of complaints over which those agencies have
overlapping jurisdiction under the ADA and 503 of the Rehabilitation Act of 1973. 49
The Commission has also promulgated rules under which persons concerned with job
discrimination questions may obtain advisory opinions from the agency. 50
Footnotes
For detailed discussion of disclosure under the FOIA, see 1966 et seq.
For detailed discussion of disclosure under the Privacy Act, see 1992 et seq.
Footnote 44. P.L. 93-579, 2, 5 USCS 552a note.
Footnote 45. 1958.
Footnote 46. 1957.
Footnote 47. Nationwide Mut. Ins. Co. v Friedman (1978, DC Md) 451 F Supp 736.
Footnote 49. 1964.
2. EEOC Policies on Disclosing Investigative Materials [1957-1965]
1957 An overview
View Entire Section
Under Title VII, information gleaned by the EEOC during conciliation negotiations is not
subject to disclosure without the consent of all parties concerned. 51 Not all courts have
considered this prohibition absolute. In one case, the EEOC was ordered to produce
documents relating to conciliation procedures. The court declared that the Commission's
claimed need for confidentiality to enforce voluntary compliance with Title VII had to be
balanced against the defendant's right to prepare adequately its best defense, when
administrative efforts toward settlement had proven unsuccessful. However, the
defendant was ordered not to make public any part of the documents other than to its own
counsel, who was also ordered to maintain the confidentiality of the information
provided. 52
Title VII also makes it unlawful for any EEOC officer or employee to make public in any
manner information that is obtained in an investigation of charges of illegal
discrimination prior to the institution of a Title VII proceeding. 53
In order to meet the
latter statutory nondisclosure obligation, the EEOC has issued policies on disclosure of
information in case files. 54
The EEOC distinguishes between making information
"public" (which it will not do) and appropriately disclosing information to the parties,
their attorneys, and witnesses. 55 Disclosure is also appropriate to representatives of
interested federal, state, and local agencies as is necessary to carry out the EEOC's
functions, 56 or in response to subpoenas, demands, or court orders. 57
Footnotes
Footnote 52. EEOC v St. Francis Community Hospital (1976, DC SC) 70 FRD 592, 12
BNA FEP Cas 423, 11 CCH EPD 10806, 21 FR Serv 2d 975.
Annotation: Disclosure of information by Equal Employment Opportunity
Commission or other agency as affected by 42 USCS 2000e-8(e), making it unlawful
for officer or employee of Commission to make public information obtained by
Commission, prior to institution of proceeding involving such information, 47 ALR
Fed 471.
Footnote 54. 29 CFR 1601.22; EEOC Compliance Manual 83.1 et seq.
Forms: RequestFor access to case files [29 CFR 1601.22]. 12 Federal Procedural
Footnote 55. As to disclosure to such persons, see 1960.
Footnote 56. 1958.
Footnote 57. 1959.
1958 Disclosure to state or local agencies

View Entire Section
Title VII requires that the EEOC furnish, upon request and without cost, to any state or
local agency charged with the administration of an antidiscrimination law, information
obtained by the EEOC in its investigations. 58 Accordingly, the EEOC's general policy
on disclosure to private persons 59 does not apply to disclosures to interested federal,
state, or local governmental agencies. 60 Rather, the Commission's rules specify that a
state or local agency will be given full access to relevant information and will be
permitted to copy or obtain copies of pertinent documents. 61 All information is
furnished on the condition that it not be made public by the recipient agency prior to the
institution of a proceeding under state or local law involving that information. 62 If
this condition is violated by a recipient agency, the Commission may decline to honor
subsequent requests for information from that agency. 63
Footnotes

Footnote 61. 29 CFR 1601.22, 1601.26.
Footnote 62. 42 USCS 2000e-8(d); 29 CFR 1601.22, 1601.26.
1959 Disclosure in response to subpoena or order

View Entire Section
The EEOC's general policy on disclosure of information in its case files to private
persons 64 does not apply to disclosure in response to subpoenas, demands, or orders
issued by courts or other authorities. 65 Rather, the Commission has issued special rules
to cover this type of disclosure. 66 Under those rules, no Commission employee or
former employee can produce or disclose any information from, or related to, an
investigative file without the prior approval of the Legal Counsel. 67 The rules require
immediate notification of the Legal Counsel of any demand for such information; if
possible, before the Commission employee responds to the demand or appears in court.
68 If a response is necessary before the Legal Counsel can give instructions, an attorney
designated by the Commission will appear with the employee, inform the court that the
matter has been referred to the Legal Counsel for prompt consideration, and request the
court to stay the demand pending the Counsel's instructions. 69 If the court declines the
stay or rules that the demand be complied with regardless of the Counsel's instructions,
the employee on whom the demand was made will decline to comply. 70
Footnotes
Footnote 66. 29 CFR 1610.30-1610.36.
Footnote 67. 29 CFR 1610.32.
Footnote 68. 29 CFR 1610.34(a).
Footnote 69. 29 CFR 1610.34(b).
Footnote 70. 29 CFR 1610.36.
1960 Disclosure to interested private persons

View Entire Section
According to the Supreme Court, neither an individual who files charges with the EEOC
nor the respondent to those charges is a member of the public to whom prelitigation
disclosure by the EEOC of confidential information is illegal. Such persons are entitled
to information contained in the individual's own file, but not to information contained in
other charging parties' files, even if the information in the other files is relevant or
material to the charging party's case. 71
The Commission's policy on disclosure of information in case files provides that
information will be disclosed only to:
(1) charging parties and their attorneys;
(2) aggrieved persons, in case files involving commissioner charges, and their attorneys,
provided that such persons have been notified of their status as aggrieved persons by the
EEOC;
(3) persons or organizations filing on behalf of an aggrieved person, and their attorneys,
provided that the aggrieved person has given written authorization to the person who
filed on his behalf to act as the aggrieved person's agent for this purpose;
(4) employees of EEOC-funded groups (such as the Mexican-American Legal Defense
and Education Fund), for the purpose of reviewing information in case files to determine
the appropriateness of referral to private attorneys as a service to charging parties,
provided the review is done at the request of a charging party and the preconditions to
disclosure have been satisfied; 72
(5) respondents and their attorneys, provided that the charging party or aggrieved person
has filed suit under Title VII;
(6) any class member who has been issued a notice of right-to-sue. 73
One court has held the disclosure rules to be void when they authorize prelitigation
disclosure to charging parties while denying disclosure to respondents or their attorneys
until after suit is filed. 74
Footnotes
Footnote 71. EEOC v Associated Dry Goods Corp. (1981) 449 US 590, 66 L Ed 2d 762,
Footnote 72. As to the preconditions to disclosure, see 1961 and , see 1965.

Forms: RequestFor access to case files [29 CFR 1601.22]. 12 Federal Procedural
Law Reviews: Fretz, Using the EEOC Investigative File in Employment
Discrimination Cases. 26 Clearinghouse Rev 422 (1992).
Footnote 74. Associated Dry Goods Corp. v EEOC (1982, ED Va) 543 F Supp 950, 29
1961 Preconditions to disclosure; generally

View Entire Section
Persons requesting disclosure of information in EEOC case files must agree in writing
not to make the information obtained public except in the normal course of a civil action
or other proceeding instituted under Title VII. 75
Access will not be granted prior to the expiration of the 180-day period during which a
private party has no right to sue under Title VII. 76 Once a right-to-sue notice has been
received by the aggrieved person and the period to file suit has expired without a lawsuit
being filed, any disclosure request is denied unless the person arguably has a continuing
right of judicial action. 77
Footnotes
As to nondisclosure agreements, generally, see 1962.
Footnote 76. As to the 180-day waiting period, generally, see 2178.
1962 --Nondisclosure agreement

View Entire Section
The EEOC requires each person to whom disclosure is made to sign an Agreement of
Nondisclosure (EEOC Form 167), which requires the person to identify his relationship
to the case (for example, whether charging party, respondent, aggrieved person on whose
behalf charge is filed, named party in class action, or attorney for some such person),
address, and telephone number. 78 Completion of the Agreement of Nondisclosure is
accepted by the EEOC as evidence that the prerequisites for disclosure are agreed to by
the person requesting disclosure. 79
Footnotes
Footnote 78. EEOC Compliance Manual 83.4; Exhibit 83-A.
1963 Disclosing Commission-required reports

View Entire Section
All reports required by the EEOC from respondents, such as Employer Information
Reports (EEO-1 Reports), will be disclosed to authorized parties if they are available in
the district office or the Office of Systemic Programs, whether or not these reports are
actually in the charging party's case file. 80 Disclosure of EEO-1 Forms by agencies
other than the EEOC is permissible under 42 USCS 2000e-8(e). 81
Footnotes
As to who is an authorized party, see 1960.
Footnote 81. Natural Resources Defense Council, Inc. v Securities & Exchange Com.
(1977, DC Dist Col) 432 F Supp 1190, 14 BNA FEP Cas 1544, 14 CCH EPD 7647,
CCH Fed Secur L Rep 96057, revd on other grounds 196 App DC 124, 606 F2d 1031,
19 BNA FEP Cas 724, 19 CCH EPD 9219; Nationwide Mut. Ins. Co. v Friedman
1964 Disclosing information from other federal agency files

View Entire Section
Information in cases filed obtained from another agency under a Memorandum of
Understanding or under statutory or regulatory authority is processed in the same manner

as EEOC reports, after checking with the other agency to see if it has any specific
concerns about disclosure. 82
If a third party requests information obtained by the EEOC and the OFCCP during an
investigation of a complaint over which those agencies have overlapping jurisdiction
under the ADA and 503 of the Rehabilitation Act of 1973, that request must be
coordinated with the agency which initially collected the information. 83 The OFCCP
will follow Title VII rules for confidentiality of information received from the EEOC,
unless the information is also received from another source. 84
Footnotes
Footnote 83. 29 CFR 1641.2(b), 41 CFR 60-742.2(b).
Footnote 84. 29 CFR 1641.3, 41 CFR 60-742.3.
1965 Expunging confidential information prior to disclosure

View Entire Section
Before a case file is disclosed to a party eligible to receive disclosure, 85 the following
materials will be removed from it:
(1) statements and identities of witnesses who were promised anonymity during the
course of the investigation or conciliation; 86
(2) the review sheet covering Commission decisions before disclosure, which contains
information concerning intragovernmental advisory and deliberative communications; 87
(3) the investigator's memorandum and all notes and other documents prepared by EEOC
attorneys or received from other governmental agencies that contain recommendations or
mental impressions as to strategy for settling or litigation; 88
(4) all data naming other respondents; 89
(5) all information concerning the EEOC's attempts to settle the charge by informal
methods of conference, conciliation, and persuasion; 90
(6) if the charge was filed by someone other than the aggrieved party, any material that
might reveal the name or address of any person on whose behalf the charge was made, 91
or of the charging party himself. 92
Footnotes
Footnote 85. As to who is eligible, see 1960.
Footnote 92. EEOC Compliance Manual 83.7(c)(ii).
3. The Freedom of Information Act [1966-1986]
1966 An overview
View Entire Section
The federal Freedom of Information Act (FOIA), which is incorporated into the
Administrative Procedure Act, 93 requires every federal agency to make certain
information available to the public, unless the information is exempt or partially exempt
from disclosure. 94
The FOIA provides for administrative 95 and judicial 96
proceedings and remedies 97 for its enforcement.
The Attorney General maintains guidelines for federal executive agencies administering
the FOIA. The guidelines permit federal agencies, within the law, to fashion their own
release policies according to their own requirements. Under the guidelines, the
Department of Justice will defend agency denials of FOIA requests in court, except
where a denial lacks a substantial legal basis and its defense would raise an unwarranted
risk of adverse impact on the ability of other agencies to protect important records. 98
A federal agency's discretion to disclose information is not limited by the FOIA, and the
Act does not afford a person who submits information to an agency any private right of
action to enjoin the agency from disclosure of that information. 99
Footnotes

Footnote 94. 5 USCS 552(a)(1)(A)-(E).
As to information required to be made available to the public, see 1967-1971.
As to exemptions and partial exemptions from disclosure, see 1973 and , see
1974.
Practice References 15 Federal Procedure, L Ed, Freedom of Information 38:26 et
seq.
Footnote 95. 1972.
Footnote 96. 1977.
Footnote 97. 1978.
Footnote 98. Department of Justice Memorandum, May 4, 1981.
Footnote 99. Chrysler Corp. v Brown (1979) 441 US 281, 60 L Ed 2d 208, 99 S Ct
1967 Information required to be published in Federal Register

View Entire Section
The public information provisions of the FOIA require that each agency publish in the
Federal Register information falling within the following categories:
(1) descriptions of the agency's central and field organization. This must tell the public
whom to contact at what locations, and the methods that should be followed to obtain
information, make submittals or requests, or obtain decisions;
(2) statements of the general course and method by which an agency's functions are
channeled and determined, including the nature and requirements of all formal and
informal procedures available;
(3) rules of procedure, descriptions of forms available or the places at which the forms
may be obtained, and instructions as to the scope and contents of all papers, reports, or
examinations;
(4) substantive rules of general applicability adopted as authorized by law, and
statements of general policy or interpretations of general applicability adopted by the
agency; and
(5) each amendment, revision, or repeal of the foregoing.

Besides being published verbatim, material may be incorporated by reference in the
Federal Register if it is reasonably available to the class of persons affected. 1
Footnotes
1968 Effect of failure to publish

View Entire Section
If a matter is required to be published in the Federal Register and is not published, a
person may not be required to resort to or be adversely affected by that information,
except to the extent that he has actual and timely notice of it. 2
Footnotes
1969 Information required to be made available for public inspection and copying
View Entire Section
The FOIA requires that each agency make available for public inspection and copying:
(1) final opinions, including concurring and dissenting opinions, as well as orders, made
in the adjudication of cases;
(2) statements of policy and interpretations that have been adopted by the agency and are
not published in the Federal Register; and
(3) administrative staff manuals and instructions to the staff that affect a member of the
public.
These rules apply unless the materials are promptly published and copies are offered for
sale.
A final order, opinion, statement of policy, interpretation, staff manual, or staff
instruction that affects a member of the public may be relied on, used, or cited as
precedent under the FOIA by an agency against a party other than an agency only if it has
been indexed and made available or published as required, or if the party has actual and
timely notice of the terms of the document. 3
Agencies must also maintain and make available for public inspection a record of the
final votes of each member in every agency proceeding. 4
Footnotes
As to indexing requirements, see 1970.
1970 Indexing requirements

View Entire Section
The FOIA provides that each agency must maintain and make available for public
inspection and copying current indexes that provide identifying information for the
public as to any matter that must be made available or published. The indexes must be
compiled on a quarterly basis, or more frequently.
Each agency must promptly publish and distribute copies of each index and its
supplement, unless it determines by order published in the Federal Register that
publication would be unnecessary and impracticable. In that situation, copies of its index
would have to be provided upon request at a cost not to exceed the direct cost of
duplication. 5
Footnotes
Footnote 5. 5 USCS 552 (a)(2).
1971 Records that must be provided on request

View Entire Section
Records that do not have to be published 6 or made available for public inspection and
copying 7 must be made promptly available to any person upon a proper request, 8
unless exempt from disclosure under the FOIA or any other law. 9
Footnotes
Footnote 6. As to records that must be published, see 1967.
Footnote 7. As to records that must be made available for public inspection and copying,
see 1969.
Footnote 8. As to proceedings in response to a request, see 1972.
As to exemptions under FOIA, see 1973 and , see 1974.
1972 Request proceedings

View Entire Section
Within ten working days after receipt of a request for records, the agency must determine
whether to comply with the request and must immediately notify the person making the
request of its determination, of its reasons, and of the requester's right to appeal any
adverse determination to the head of the agency. 10 An individual is deemed to have
exhausted his administrative remedies if the agency fails to meet required time limits in
deciding whether to release the desired information. 11 However, in unusual
circumstances, the time may be extended for no more than ten working days by written
notice to the requester setting forth the reasons for the extensions and the date on which a
determination is expected to be dispatched. Unusual circumstances include:
(1) the need to search for and collect the requested records from field facilities or other
establishments that are separate from the office processing the requests;
(2) the need to search for and examine a voluminous amount of separate and distinct
records that are requested in a single request; or
(3) the need for consultation either with another agency having substantial interest in the
request or among two or more components of the requestee having a substantial interest
in the subject matter of the request. 12
The agency involved must respond to an appeal within 20 days of receiving it. 13
Failure to meet agency time limits in the administrative appeal process results in the
exhaustion of administrative remedies. 14
Footnotes
Footnote 10. 5 USCS 552(a)(6)(A)(i).

Footnote 13. 5 USCS 552(a)(6)(A)(ii).
1973 Exempt material

View Entire Section
Go to Supplement
Not all information in the possession of an agency must be disclosed under the FOIA. For
example, federal agencies are expressly exempt from disclosing the following types of
information:
information that is specifically authorized under criteria established by an Executive
Order to be kept secret in the interest of national defense or foreign policy; 15
material related solely to the internal personnel rules and practices of an agency; 16
matters specifically exempt from disclosure by statute, provided that the statute either
requires that the matters be withheld from the public in such a manner as to leave no
discretion on the issue, establishes particular criteria for withholding, or refers to
particular types of matters to be withheld; 17
trade secrets and privileged or confidential commercial or financial information
obtained by the government from a person; 18
interagency or intra-agency memoranda or letters that would not be available by law to
a party other than an agency in litigation with the agency; 19
personnel and medical files and similar files where disclosure would constitute a clearly
unwarranted invasion of personal privacy; 20
investigatory records compiled for law enforcement purposes, where their disclosure
could reasonably be expected to interfere with law enforcement proceedings, 21 would
be likely to deprive a person of a fair trial or impartial adjudication of his case, 22 could
reasonably be expected to constitute an unwarranted invasion of the privacy of private
citizens, 23 could reasonably be expected to disclose the identity of confidential sources
of information, 24 reveal to the public the investigative techniques and procedures
utilized by law enforcement agencies (specifically including guidelines for investigations
or prosecutions if such disclosure could reasonably be expected to risk circumvention of
the law), 25 or endanger the lives or safety of any individual. 26

Information contained in records originally compiled for law enforcement purposes do
not lose exempt status under Exemption 7 when later summarized in records compiled for
non-law enforcement purposes. Otherwise, the originally compiled records and the
derivative summary would have to be treated completely differently despite having the
same content and equally strong reasons for maintaining its confidentiality. 27
In cases where access is sought to agency information relating to an investigation of
possible violation of criminal law, the subject of the investigation is unaware of its
pendency, and disclosure could reasonably be expected to interfere with the
investigation, the agency may treat the information as exempt from disclosure while these
circumstances persist. 28 Where records relating to an informant maintained under that
informant's name or identifier are sought, the agency may treat the information as exempt
unless the informant's status has been officially confirmed. 29 Where FBI records
involving foreign intelligence, counterintelligence, or international terrorism are
involved, and the existence of such records is classified information, these records are
also exempt. 30
However, the FOIA is a disclosure statute, and does not require an agency to withhold
information falling within one of the exemptions from mandatory disclosure. 31
Anything said or done during EEOC's conciliation efforts, as well as any information
obtained by the EEOC during its investigation of a charge, is exempt from FOIA
disclosure by virtue of 5 USCS 552 (b)(3), and because of Title VII's specific
non-disclosure provisions. 32
1973 ----Exempt material [SUPPLEMENT]
Practice Aids: Right to jury trial in action under state civil rights law. 12 ALR5th
508.
Footnotes
Footnote 23. 5 USCS 552(b)(7)(C).

Footnote 24. 5 USCS 552(b)(7)(D).
Footnote 25. 5 USCS 552(b)(7)(E).
Footnote 26. 5 USCS 552(b)(7)(F).
Footnote 27. FBI v Abramson (1982) 456 US 615, 72 L Ed 2d 376, 102 S Ct 2054, 8
Media L R 1561.
Footnote 32. American Centennial Ins. Co. v U.S. EEOC (1989, DC NJ) 722 F Supp 180,
1974 Partially exempt material

View Entire Section
Any reasonably segregable portion of a requested record must be provided after deletion
of the exempt portions. 33 Thus, it is a violation of the FOIA to withhold documents on
the ground that parts are exempt and parts nonexempt, where suitable deletions may be
made. 34 By the same token, an entire document does not lose its exempt status simply
because some of the material would not be exempt. Furthermore, materials that would
otherwise be nonexempt may become exempt if they are sufficiently intertwined with
other exempt material. For example, if disclosure of unprotected information would
compromise the confidentiality of information that is entitled to protection under an
exemption, all material falls within the exemption. 35
Footnotes
Footnote 34. Wellford v Hardin (1970, DC Dist Col) 315 F Supp 768.
Footnote 35. Lead Industries Asso. v Occupational Safety & Health Administration
(1979, CA2) 610 F2d 70.
1975 Deletion of identifying details from information

View Entire Section
Go to Supplement
Identifying details may be deleted from opinions, statements of policy, or other
information made available or published by the agencies, to the extent required to prevent
a clearly unwarranted invasion of personal privacy. The justification for each deletion
must be fully explained in writing. 36
1975 ----Deletion of identifying details from information [SUPPLEMENT]
Practice Aids: Statistics for Wage Discrimination Cases: Why the Statistical Models
Used Cannot Prove or Disprove Sex Discrimination, McKeown, 67 Ind LJ No. 3 P 633
(Summer 1992).
Footnotes
1976 Fees for providing information

View Entire Section
The FOIA provides for the charging of fees to cover the costs of providing requested
information according to a sliding scale, the specifics of which are to be established by
regulations in individual agencies, consistent with the general principle that educational,
scientific, news media, and public interest requests are to be charged lesser rates than
requests made for commercial purposes. 37
Footnotes
Footnote 37. 5 USCS 552(a)(4)(A)(i)-(iv).
1977 Judicial review

View Entire Section

Where an agency, upon review, 38 affirms the denial of a request for records, in whole
or in part, the requester may seek judicial review in federal district court. A FOIA action
may be undertaken in the district court in the district where the complainant resides or
has his principal place of business, in the district in which the agency records are
situated, or in the District of Columbia. 39
In order to expedite the determination of FOIA actions, the defendant agency is required
to serve an answer or otherwise plead to any complaint under the FOIA within 30 days
after service of the complaint, unless the court otherwise directs for good cause shown.
40
Federal courts determine the order in which civil cases are heard. However, they must
expedite consideration in matters involving habeas corpus, civil contempt, actions for
temporary or preliminary injunctions, or actions if good cause is shown. Good cause is
shown if a right under the constitution or a federal statute, including the FOIA, would be
maintained in a factual context that indicates that a request for expedited consideration
has merit. 41 Since most FOIA cases do not involve extended discovery or testimony
and expedited action by the courts in these cases can reduce the opportunities to hamper
reporting of governmental activities, it is Congress' intent that "good cause" be liberally
construed by the courts in granting requests for expedited consideration under the FOIA.
42
The court will then determine the matter de novo and may examine the contents of the
agency records in camera to determine whether the records, or any part of them, should
be withheld under any of the FOIA exemptions. 43 The burden is on the agency to
sustain its action. 44
Footnotes
Footnote 38. 1972.
Footnote 42. H Rept No. 98-985, to accompany H.R. 5645, 8/31/84, pp 5, 6.
Footnote 43. As to FOIA exemptions, see 1973 and , see 1974.
1978 Remedies for nondisclosure

View Entire Section

Under the FOIA, district courts have jurisdiction to enjoin an agency from withholding
agency records and to order the production of any records improperly withheld from a
complainant. 45 There is, however, no private cause of action for money damages
under the FOIA, 46 although provision is made for the payment of attorney's fees and
litigation costs. 47 Although at least one court has found that a pro se litigant could be
eligible for attorney's fees under the FOIA, 48 most courts have found that a pro se
litigant is not entitled to attorney's fees under 5 USCS 552(a)(4)(E) (footnote 87). The
provision allowing attorney fees clearly contemplated using an attorney's services. 49
In the event that a responsible agency employee does not comply with a court order in a
FOIA case, a district court may punish him or her for contempt. 50
An investigation by the Special Counsel of the Merit Systems Protection Board must
promptly follow a court order for the production of agency records improperly withheld
from the complainant, if the court assesses reasonable attorney's fees and other litigation
costs against the United States and also makes the additional written finding that the
circumstances surrounding the withholding raise questions as to whether agency
personnel acted arbitrarily or capriciously with respect to the withholding. After the
Special Counsel has investigated and considered the evidence, he must submit his
findings and recommendations to the administrative authority of the agency concerned
and send copies of those findings and recommendations to the officer or employee
concerned or to his representative. The administrative authority must then take the
corrective action that the Special Counsel recommends. 51
Footnotes
Footnote 46. Daniels v St. Louis VA Regional Office (1983, ED Mo) 561 F Supp 250.
Footnote 48. Cox v U.S. Dept. of Justice (1979) 195 US App DC 189, 601 F2d 1, 5
Media L R 1663.
Footnote 49. Cunningham v FBI (1981, CA3) 664 F2d 383, 7 Media L R 2380; Barrett v
Bureau of Customs (1981, CA5) 651 F2d 1087, 7 Media L R 1966, cert den 455 US 950,
71 L Ed 2d 665, 102 S Ct 1454; De Bold v Stimson (1984, CA7) 735 F2d 1037, 34 CCH
EPD 34429; Clarkson v IRS (1982, CA11) 678 F2d 1368, 8 Media L R 1933, 82-2
USTC 9437, 50 AFTR 2d 82-5407.
Footnote 50. 5 USCS 552(a)(4)(G).
Footnote 51. 5 USCS 552(a)(4)(F).
b. Obtaining Records of Particular Agencies Under the FOIA [1979-1986]

(1). Department of Labor [1979-1983]
1979 An overview
View Entire Section
Under the Freedom of Information Act, the Department of Labor (DOL) has promulgated
regulations regarding the examination and copying of DOL records. 52 The regulations
apply to each component of the DOL, 53 including every separate bureau, office, board,
division, commission, service, or administration of the department, 54 unless a
particular component has issued supplementary or special regulations, consistent with the
DOL regulations, governing its disclosures. 55
The regulations cover the publication of information in the Federal Register and DOL
publications, 56 the availability of information upon request, 57 materials exempt from
disclosure, 58 and disclosure procedures. 59 The regulations also specify where DOL
information can be obtained 60 and list the titles and addresses of the responsible FOIA
officers of the various component agencies. 61
Footnotes
Footnote 55. 29 CFR 70.7, 70.8.
Disclosure of documents of the Office of Federal Contract Compliance Programs, a
component of the DOL, is discussed at 1984 et seq.
Footnote 57. 1980.
Footnote 58. 1981.
Footnote 59. 1982.
Footnote 60. 29 CFR 70.4(d), 70.19(a).
Footnote 61. 29 CFR App A(b).
1980 Information available

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Records that will be made available by the DOL include:
(1) final opinions in adjudication proceeding, including concurring and dissenting
opinions as well as orders; 62
(2) policy statements and interpretations not published in the federal register; 63
(3) nonexempt administrative staff manuals or instructions to staff that affect any
member of the public; 64
(4) indexes identifying final opinions and orders in adjudicated cases, statements of
policy and interpretations not published in the Federal Register, and administrative staff
manuals and instructions, issued, adopted, or promulgated after July 4, 1967. 65
Identifying details may be deleted from any record in the interests of personal privacy. 66
Footnotes
Footnote 62. 29 CFR 4(a)(1).
Footnote 63. 29 CFR 70.4(a)(2).
Footnote 64. 29 CFR 70.4(a)(3).
1981 Exemptions from disclosure

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DOL regulations incorporate by reference the statutory exemptions provided in the
FOIA. 67
In ruling on an claim based on the FOIA's Exemption 5, 68 one court held that
documents generated in the course of a DOL rule-making proceeding by a private
consulting firm are intra-agency memoranda exempted from disclosure, even though they
were prepared by outside consultants. 69
With regard to an Exemption 6 claim, 70 it has been said that a court must determine de
novo (1) whether the material requested falls within the type of matter covered by the
exemption, and, if so, (2) whether disclosure would constitute a clearly unwarranted
invasion of personal privacy. Thus, a publisher's request for access to inspect and copy
files active on June 9, 1978, of all workers' compensation claims filed by or on behalf of
employees of the Office of Workers' Compensation Programs in the DOL was denied,
since, under Exemption 6, disclosure of those files would constitute a clearly
unwarranted invasion of personal privacy. 71
Footnotes
As to the FOIA's statutory exemptions, see 1973.
Footnote 69. Brush Wellman, Inc. v Department of Labor (1980, ND Ohio) 500 F Supp
519.
Footnote 71. Plain Dealer Publishing Co. v United States Dept. of Labor (1979, DC Dist
Col) 471 F Supp 1023.
1982 Request procedures

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Any person desiring to examine or copy DOL records must comply with DOL
regulations governing requests. 72
Requests must be made in writing to the appropriate DOL component, 73 and should
reasonably describe the record in sufficient detail to permit its identification and location
with a reasonable amount of effort. As far as practicable, the request should specify:
the record's subject matter;
the date or approximate date when made;
the place where made;
the person or office that made the record;

any other pertinent identifying details. 74
Both the request and its envelope should clearly state "Freedom of Information Act
request." Requesters who need guidance in defining a request or in identifying the
appropriate DOL component may write to the Assistant Secretary of Labor for
Administration and Management, DOL, 200 Constitution Ave. N.W., Washington, D.C.
20210. 75
Upon receipt of the request, the component must either decide whether to grant or deny
the request, 76 or determine whether the request should be referred to a more
appropriate component. 77 If the request is granted, the component must notify the
requester in writing of the manner in which the record will be disclosed and of any fees
to be charged. 78 If the request is denied, the component's written reply will contain a
brief statement of the reasons for the denial, including the name and title of the person or
persons responsible for the denial and an outline of the appeal procedure available. 79
If the requested record cannot be located from the information provided, the component
must notify the requester in writing and indicate any additional information required. 80
The requester must also be notified in writing if the record is believed to have been
destroyed or otherwise disposed of. 81
The request must be processed within the 10 working days specified in the Act, unless
there are exceptional circumstances as defined in the Act. The requester must be notified
in writing whenever the appeal cannot be processed within these time limits. 82
Footnotes
Footnote 73. 29 CFR 70.19(a), App A.
Footnote 76. 29 CFR 70.20(a)(1), (b).
Footnote 77. 29 CFR 70.20(a)(2), (c).
As to appeals, generally, see 1983.
Footnote 80. 29 CFR 70.19(c), 70.21(c).
1983 Appeals
View Entire Section
An applicant may file a written appeal within 90 days from the date of denial of his
request for disclosure. The appeal must state the grounds for appeal, including any
supporting statements or arguments. The appeal and its envelope should clearly state
"Freedom of Information Act appeal", and should be addressed to the Solicitor of Labor,
DOL, 200 Constitution Ave., N.W., Washington, D.C. 20210. 83
The Solicitor or his designee must review the appellant's supporting information and
determine de novo whether the denial was appropriate. 84 If the appeal is granted with
respect to any or all of the requested records, the Solicitor must order that the records be
made available promptly to the appellant. If the appeal is denied wholly or in part, the
decision must set forth the reasons for denial, each FOIA exemption relied on, its relation
to each record withheld, and the procedure for obtaining judicial review of the denial. 85
The appeal must be processed within the 20 working days specified in the Act, unless
there are exceptional circumstances as defined in the Act. The appellant must be notified
in writing whenever the appeal cannot be processed within these time limits. 86
Footnotes
(2). Office of Federal Contract Compliance Programs [1984-1986]

View Entire Section
Public access to documents of the Office of Federal Contract Compliance Programs
(OFCCP) and its various compliance agencies is provided by OFCCP regulations. 87

These regulations implement the Freedom of Information Act (FOIA) and supplement the
regulations of the Department of Labor. 88
All contract compliance documents in the custody of the OFCCP will be disclosed upon
request, unless disclosure is specifically prohibited by law or the regulations. 89
Documents that must be disclosed include, but are not limited to:
affirmative action plans, except as limited by the regulations; 90
texts of final conciliation agreements;
validation studies of tests or other preemployment selection methods;
dates and times of scheduled compliance reviews; 91
copies of Standard Form 100 (EEO-1). 92
Even exempt materials will be made available for inspection and copying if the OFCCP
determines that disclosure is in the public interest and does not impede any of the
agency's functions, unless disclosure of the particular records is prohibited by law. 93
Furthermore, officers and employees of the OFCCP are authorized to continue to furnish
to the public, informally and without compliance with the FOIA regulations, information
and copies of records that, prior to the enactment of the FOIA, they customarily furnished
in the regular performance of their duties. 94
If a requested record contains materials that are protected from disclosure and other
materials that are not protected, identifying details or protected matters will be deleted
wherever possible; when such deletions are made, the remainder of the records may be
disclosed. 95
Footnotes
Footnote 88. As to the Department of Labor regulations, generally, see 1979 et seq.
Footnote 89. As to prohibitions on disclosure, see 1985.
Footnote 90. As to limitations on disclosure of affirmative action plans, see 1985.
Footnote 91. 41 CFR 60-40.2(b).
Footnote 92. 41 CFR 60-40.4.
Footnote 93. 41 CFR 60-40.2(a).
Footnote 94. 41 CFR 60-40.5.
Footnote 95. 41 CFR 60-40.7.

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Various documents are exempt from mandatory disclosure by the OFCCP and will be
withheld if the agency determines that the requested inspection or copying does not
further the public interest and might impede the discharge of OFCCP functions. 96
Exempt documents include:
portions of affirmative action plans, such as goals and timetables, that are confidential
commercial or financial information indicating a shift in personnel requirements that has
not been made available to the public, upon verification and a satisfactory explanation
from the contractor of why the information should be withheld;
portions of affirmative action plans that constitute information on staffing patterns and
pay scales, but only to the extent that their release would injure the business or financial
position of the contractor, would constitute a release of confidential, financial
information of an employee, or would constitute an unwarranted invasion of an
employee's privacy;
names of individual complainants;
compliance investigation files, to the extent that they include trade secrets and
confidential commercial or financial information, interagency or intra-agency
memoranda, personnel and medical files, or information the disclosure of which is
prohibited by statute; 97
copies of preemployment selection tests used by contractors. 98
Other records may be withheld on a case-by-case basis, with the prior approval of the
OFCCP Director. 99 For example, peer review documents of a university that related to
an individual's academic achievements and qualifications and that identified contributors
of the information and evaluations made in confidence could not be disclosed under the
FOIA. 1
Footnotes
Footnote 96. 41 CFR 60-40.3(a).
Footnote 97. 41 CFR 60-40.3(a).
Footnote 98. 41 CFR 60-40.3(a).
Footnote 99. 41 CFR 60-40.3(b).
Footnote 1. OFCCP Order No. 160a 3, Nov. 3, 1980.

View Entire Section
Any person may request that records obtained or generated pursuant to Executive Order
11246 be made available for inspection and copying. 2 The request must be directed to
the National OFCCP or an appropriate regional or area office. 3 If the person making the
request does not know in which office the record is located, he may direct his request to
the Director, Office of Federal Contract Compliance Programs, Department of Labor, 200
Constitution Avenue, N.W., Washington, D.C. 20210. 4
Footnotes
Footnote 3. For a listing of addresses and geographic jurisdiction of OFCCP regional and
area offices, see Employment Coordinator EP-31,172.
(3). Equal Employment Opportunity Commission [1987-1991]
1987 An overview
View Entire Section
The Equal Employment Opportunity Commission (EEOC) has issued regulations under
the Freedom of Information Act (FOIA) detailing, among other things, available 5 and
exempt 6 information, and procedures pertaining to requests for information 7 and
appeal from the denial of such requests. 8
Caution: A distinction should be drawn between the disclosure policies discussed

here and the EEOC disclosure policies, 9 which concern the disclosure of information
in investigative files to parties. The discussion here concerns only what the EEOC is
bound to reveal to anyonewhether a party or notby the FOIA.
Footnotes
Footnote 5. 1988.
Footnote 6. 1989.
Footnote 7. 1990.
Footnote 8. 1991.
Footnote 9. As to EEOC disclosure policies, generally, see 1957 et seq.

View Entire Section
The EEOC maintains, in its public reading area at 1801 L St. N.W., Washington, D.C.
20507, materials required by the FOIA to be made available for public inspection and
copying, including a current index and all material published in the Federal Register and
currently in effect. 10 Certain information is also available for public inspection and
copying at the Commission's district, area, and local offices. 11
The Commission will provide the following information to the public:
certain previously compiled and published tabulations of aggregate industry, area, and
other statistics derived from the Commission's reporting programs, 12 to the extent that
the tabulations do not consist of aggregate data from less than three responding entities
and do not reveal the identity of an individual or the dominant entity in a particular
industry or area in any manner;
all blank Commission forms;
all signed contracts, final bids on all signed contracts, and agreements between the
Commission and State or local agencies charged with the administration of State or local
fair employment practices laws;
all final reports that do not utilize statutorily confidential material in discernible
individual form;
all agency correspondence to members of the public, Members of Congress, or other
persons not government employees or special government employees, except for matters
the making public of which would constitute an invasion of privacy;
all administrative staff manuals and instructions to staff that affect a member of the
public unless the materials are promptly published and copies offered for sale;
all final votes of each commissioner, for every Commission meeting, except for votes
pertaining to the filing of suit against respondents until litigation is actually commenced.
13
Footnotes
Footnote 12. As to the Commission's reporting programs, see 1909 et seq.
Footnote 13. 29 CFR 1610.18.

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Unavailable under the EEOC's FOIA regulations are such matters as:
investigatory files, internal procedures and communications, materials exempted by
other statutes, information given in confidence, and matters involving personal privacy;
14
charges that have been filed;
anything said or done during and as part of the Commission's endeavors to eliminate an
alleged unlawful employment practice by informal methods of conference, conciliation,
and persuasion; 15
each executed statistical reporting form, such as Employer Information Report EEO-1,
etc., prior to the institution of a proceeding under title VII involving information from the
form; 16
requests for information relating to open case files covering alleged violations of the
Americans with Disabilities Act, the Equal Pay Act or the Age Discrimination in
Employment Act; 17
the medical, financial, and personnel files of employees of the Commission. 18
Where requested records contain matters that are exempt but reasonably segregable from
the remainder of the records, they will be disclosed by the Commission with deletions
and a written justification for making deletions. A single justification will be made for
deletions to a group of similar or related records. 19
Footnotes
Footnote 14. 29 CFR 1610.17(a), (c).

Footnote 15. 29 CFR 1610.17(b).
Footnote 16. 29 CFR 1610.17(e).
Footnote 17. 29 CFR 1610.17(f).
Footnote 18. 29 CFR 1610.17(g).
Footnote 19. 29 CFR 1610.19.

View Entire Section
Written requests for inspection or copying of EEOC records must be presented in person
or by mail during business hours on any workday. Requests must contain information
indicating what records are sought and, when possible, should include the name, date,
subject matter, and location of the record. 20 The request and its envelope must be
clearly identified as a FOIA request. 21
The regional attorneys will consider requests for the following information that is located
at district, area, or local field offices:
information about present or former employees of a field office;
existing statistical data that is not confidential, relating to the case processing of a field
office;
agreements between the Commission and state or local fair employment agencies under
the jurisdiction of a field office;
materials in district or area office investigative files for charges under Title VII, the
Americans With Disabilities Act (ADA), the Equal Pay Act, or the Age Discrimination in
Employment Act. 22
A request for any other record known to be at a field office, or a request for any record
the location of which is unknown to the person making the request, must be submitted in
writing to the Associate General Counsel, Legal Counsel Division, Equal Employment
Opportunity Commission, 1801 L Street, N.W., Washington, D.C. 20507. 23
The appropriate Commission attorney is required to either grant or deny the request
within ten working days, unless more time is necessary to either collect the records or
consult other agencies having a substantial interest in the records in question. 24
Requests for records that originated in another agency and are in the custody of the
EEOC will be coordinated in appropriate circumstances with the other agency, rather
than simply referred to that agency. 25 Once a requested record is identified and
available, the individual making the FOIA request will be notified of when and where it
will be available and the cost involved in processing the request. 26
A person making a FOIA request must pay all fees in full prior to issuance of the
requested copies of records. The Commission will inform the person making the request
of the exact amount of the assessed fees at the time of granting or denying the request. 27
A district or area director also may duplicate records that have been made available to the
public and collect fees for the duplication of those records. 28
If a FOIA request is denied, it must be done in writing and signed by the Legal Counsel,
his designee, or the appropriate regional attorney. It also must include the name and title
of the respondent, the specific FOIA exemption relied on, a brief explanation of how the
exemption applies, or a statement that after a diligent effort the requested records have
not been found or adequately examined during the time permitted. However, the denial
must be reconsidered when the search or examination is complete, and must indicate that
it may be appealed to the EEOC within 30 days of receipt. 29
Furthermore, if the EEOC closes its charge file during the period between a denial by the
field office and reconsideration of the request by the Legal Counsel's designee, the
request may be remanded to the appropriate Regional Attorney for redetermination. The
requester also retains a right to appeal to the Legal Counsel from the decision on remand.
30
Footnotes
Footnote 26. 29 CFR 1610.10(a).
Footnote 27. 29 CFR 1610.15(a).
Footnote 28. 29 CFR 1610.14(b).
Footnote 29. 29 CFR 1610.10(b).
Footnote 30. 29 CFR 1610.11(f).
1990.5 --Confidential commercial information requests

View Entire Section
A special procedure exists when confidential commercial information is requested from
the agency. "Confidential commercial information" involves records containing
information exempt from disclosure because their release could reasonably be expected
to cause substantial competitive harm to the person or entity providing it to the
government, including corporations, and state and foreign governments. 31
When EEOC receives a request for "confidential commercial information," it must
provide the submitter of such information with notice of the request if: (1) it reasonably
believes that disclosure would cause substantial competitive harm to the submitter; (2)
the information was submitted before January 1, 1988, the records are less than ten years
old, and the submitter has designated them as commercially sensitive; or (3) the
information was submitted after January 1, 1988, and the submitter has in good faith
previously indicated that the records contain confidential commercial information.
Designations of confidentiality must be supported by a certification from an officer or
authorized representative of the company that the information is undisclosed confidential
commercial information. The designation expires ten years from the date of submission
unless otherwise justified. 32
However, a predisclosure notification is not required if the EEOC determines that the
information will not be disclosed, is already published or otherwise officially and
publicly available, or that disclosure is required by a law other than the FOIA. 33
When a predisclosure notice is given to a submitter, the requester also must be notified
that the submitter is receiving the notice and an opportunity to comment. 34
The submitter has five working days to provide detailed objections to disclosure that
precisely identify the exempted information and the basis for claiming it to be a trade
secret or otherwise confidential. 35
If the EEOC decides to disclose information, it must briefly explain its reasons to an
objecting submitter within at least three working days before the disclosure date, to allow
time to seek a court injunction preventing release. It also must inform the requester of its
disclosure determination and proposed release date. 36
If a requester brings suit to compel disclosure of confidential commercial information,
the EEOC must promptly notify the submitter of that action. 37
Footnotes
Footnote 31. 29 CFR 1610.19(a).
Footnote 32. 29 CFR 1610.19(b).
Footnote 33. 29 CFR 1610.19(g).

Footnote 34. 29 CFR 1610.19(c).
Footnote 35. 29 CFR 1610.19(d).
Footnote 36. 29 CFR 1610.19(e).
Footnote 37. 29 CFR 1610.19(f).
1991 Appeals
View Entire Section
The decision of the EEOC on a FOIA request is subject to administrative review by the
Commission. The appeal must be filed within 30 days after receipt of the denial, must be
addressed to the EEOC Chairman, 1801 L Street N.W., Washington, D.C. 20507, and
must be clearly labled as a FOIA appeal. 38 No personal appearance, oral argument, or
hearing will ordinarily be permitted in connection with an appeal to the Commission. 39
Footnotes
Footnote 38. 29 CFR 1610.11(a).
Footnote 39. 29 CFR 1610.11(d).
4. The Privacy Act [1992-2011]
1992 An overview
View Entire Section
The federal Privacy Act of 1974 (PA), which is incorporated into the Administrative
Procedure Act, 40 is designed to safeguard the right of personal privacy against invasion
by agencies that collect and use personal data. 41 Thus, the PA is aimed at protecting
the agency records of individuals who are defined as citizens or aliens who are lawfully
admitted for permanent residence in the U.S. 42

The PA permits an individual to determine what records pertaining to him are collected,
maintained, used, or disseminated by agencies; 43 controls the use of such information
without the consent of the individual; 44 gives the individual access to the information;
45 and grants the individual an opportunity to determine if the information in the
government's possession is current and accurate. 46 The PA also protects individuals by
requiring that each agency make certain disclosures to each person from whom it seeks
information. These disclosures must include the principal purposes or routine uses to be
made of the information sought. In addition, some limits are placed on the types of
records that can be collected. 47
The PA provides administrative 48 and judicial 49 proceedings, as well as civil 50
and criminal 51 remedies, for its enforcement.
Footnotes
Footnote 41. P.L. 93-579, 2, 5 USCS 552a note.
Practice References 15 Federal Procedure, L Ed, Freedom of Information 38:257
et seq.
Footnote 42. 5 USCS 552a(a)(2), (b).
Footnote 43. 1995.
Footnote 44. 1997.
Footnote 45. 1996.
Footnote 46. 2000.
Footnote 47. 1993.
Footnote 48. 1996, 1998-2000.
Footnote 49. 2001.
Footnote 50. 2002.
Footnote 51. 2003.
1993 Agency duties

View Entire Section

Each agency that maintains a system of records must:
keep only information about an individual that is relevant and necessary to accomplish
the agency's purpose; 52
to the greatest extent practicable, collect information directly from the subject individual
when the information may result in an adverse determination about his rights, benefits,
and privileges under federal programs; 53
inform each individual from whom it requests information of the legal authority
authorizing the solicitation, the purposes for which the information will be used, the
routine uses that may be made of the information, and the effects on him of not supplying
all or part of the information; 54
publish annually in the Federal Register a detailed notice of the existence and character
of the system of records; 55
at least 30 days prior to the publication of such notice, publish in the Federal Register
notice of any new use or intended use of the information in the system and provide an
opportunity for interested persons to comment; 56
maintain all records used in making any determination about an individual with such
accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure
fairness; 57
prior to disseminating any record about an individual to anyone other than an agency,
make reasonable efforts to assure that the record is accurate, complete, timely, and
relevant for agency purposes; 58
maintain no record describing how an individual exercises his First Amendment rights,
unless the record is expressly authorized by statute or by the subject individual, or unless
it is pertinent to and within the scope of an authorized law enforcement activity; 59
make reasonable efforts to notify an individual when his records are made available to
any person under compulsory legal process after the process becomes a matter of public
record; 60
establish rules of conduct for persons involved in the operation or maintenance of any
system of records; 61
establish appropriate administrative, technical, and physical safeguards to ensure the
security and confidentiality of individual records. 62
The U.S. Government is not per se liable for disseminating records in violation of 5
USCS 552a(e)(6). Rather, the individual must show not only that the information
disclosed was inaccurate but also that the government did not make reasonable efforts to
assure such accuracy. 63 Furthermore, neither 5 USCS 552(e)(5) nor 552a(e)(7)
provides an independent basis for the expungment of records improperly maintained.
Instead, the specified channel for redressing statutory violations is a private civil action
against the agency under 5 USCS 552a(g)(1). 64

In May of each year, the Office of the Federal Register publishes "Privacy Act
Issuances", which includes the current rules, procedures, and record systems descriptions
of each federal agency through the end of the preceding year. This set is available from
the Government Printing Office, Washington, D.C. 20402.
Footnotes
Footnote 63. Bartel v U.S., Federal Aviation Admin. (1987, ED NY) 664 F Supp 669, 59
BNA FEP Cas 311.
Footnote 64. Doe v FBI (1991) 290 US App DC 289, 936 F2d 1346.
1994 What are "records"

View Entire Section
Any item, collection, or grouping of information about an individual that is maintained,
collected, used, or disseminated by an agency is considered a "record" subject to the
Privacy Act. "Records" may include information about an individual's education,
financial transactions, medical history, or criminal or employment history. The data must
include the individual's name, or the identifying number, symbol, or other identifying
particular assigned to the individual, such as a finger or voice print or a photograph. 65
The PA concerns only personal information in a "system of records," 66 as opposed to

all information in records, documents, manuals, etc., that are covered by the Freedom of
Information Act. A "system of records" is a group of records under the control of an
agency from which information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular assigned to the individual. 67
Thus, a letter that was not retrievable by the plaintiff's name was not subject to the Act's
nondisclosure provisions. 68
Footnotes
Footnote 65. 5 USCS 552a(a)(3), (4).
Footnote 66. 5 USCS 552a(b).
Footnote 67. 5 USCS 552a(a)(5).
Footnote 68. McGregor v Greer (1990, DC Dist Col) 748 F Supp 881.
1995 Individual's right to review own records

View Entire Section
Individuals are guaranteed the right under the Privacy Act to gain access to their records
or to any information pertaining to them that is contained in a system of records. 69
However, a system of records can be exempted from review by the subject individual if it
falls within any of the following categories:
records subject to the Freedom of Information Act exemption for classified documents,
70 although no agency can rely on any other Freedom of Information Act exemption to
withhold a record otherwise accessible to an individual under the PA; 71
investigatory materials compiled for law enforcement purposes; 72
records maintained in connection with the Secret Service's provision of protective
services to the President or other individuals; 73
records required by statute to be maintained and used solely as statistical records; 74
investigatory material compiled solely for the purpose of determining suitability,
eligibility, or qualifications for federal civilian employment, military service, federal
contracts, or access to classified information; 75
testing or examination material used solely to determine individual qualifications for
appointment or promotion in the federal service, if disclosure would compromise the
objectivity or fairness of the testing or examination process; 76

evaluation material used to determine potential for promotion in the Armed Services; 77
information compiled in reasonable anticipation of a civil action or proceeding. 78
To qualify as law enforcement records exempt from review, the agency's investigative
activities that give rise to the records must be related to enforcing federal laws or
maintaining national security, and be supported by a colorable claim of rationality. The
burden then shifts to the plaintiff to show that the asserted law enforcement rationale for
an investigation was in fact pretextual. 79
At the time rules implementing a general or specific exemption are adopted, the agency
must include the reasons why the system of records is to be exempted in its general
statement outlining the basis and purpose of the exemption. 80
Footnotes
Footnote 69. 5 USCS 552a(d)(1).
Footnote 70. 5 USCS 552a(k)(1).
Footnote 71. 5 USCS 552a(q).
As to other Freedom of Information Act exemptions, see 1973.
Footnote 72. 5 USCS 552a(j)(2), (k)(2).
Footnote 80. 5 USCS 552a(j), (k).
1996 Requesting individual's own records

View Entire Section

Any individual, including a minor or incompetent, 81 may ask for access to his records
or to any information pertaining to him that is contained in a system of records
maintained by a federal agency. He may be accompanied by another person of his choice
when he requests access to the record in person, although he may be required to
affirmatively authorize that person's presence during any discussion of the record to
which access is requested. 82
Footnotes
1997 Disclosure of record to third parties

View Entire Section
Under the Privacy Act, no agency is permitted to disclose to a third party any nonexempt
record contained in a system of records by any means of communication, except pursuant
to a written request by, or with the prior written consent of, the individual to whom the
record pertains. 83
However, there are exceptions to the nondisclosure rule. Information otherwise protected
from disclosure is properly released under the following circumstances;
to those officers and employees of the agency that maintains the record who need the
record to perform their duties; 84
when required under the FOIA; 85
for a routine use, 86 defined as disclosure for a purpose that is compatible with the
purpose for which it was collected; 87
to the Bureau of the Census for the purpose of planning or carrying out a census or
survey or related activity; 88
to a recipient who has provided the agency with advance adequate written assurance
that the record will be used solely as a statistical research or reporting record, and the
record is to be transferred in a form that is not individually identifiable; 89
to the National Archives as a record that has sufficient historical or other value to
warrant its continued preservation by the government, or for evaluation by the
Administrator of General Services to determine whether the record has such value; 90
to another government agency for a civil or criminal law enforcement activity as

authorized by law, provided the head of the agency or instrumentality has made a written
request to the agency that maintains the record specifying the particular portion desired
and the law enforcement activity for which the record is sought; 91
to any person upon a showing of compelling circumstances affecting the health or safety
of an individual if, at the time of the disclosure, notification is transmitted to the last
known address of the individual; 92
to either House of Congress or, as appropriate, to their committees or subcommittees; 93
to the Comptroller General, or any of his authorized representatives, in the course of the
performance of the duties of the General Accounting Office; 94
pursuant to the order of a court of competent jurisdiction; 95
to a consumer reporting agency in accordance with statutorily mandated procedures for
collection of claims of the United States. 96
The exemption regarding disclosures to Congress or a committee or subcommittee does
not apply to disclosures to individual Congressmen. 97
The PA's exceptions contained in 5 USCS 552a(b) apply whether the information at
issue is true or false. 98
An agency's ability to sell or rent a mailing list including individuals' names and
addresses is restricted by the PA. Such use of a mailing list is prohibited unless
specifically authorized by law. 99
Special rules apply to records accepted for storage, records transferred to the National
Archives as historical documents, and records in the possession of government
contractors. Agency records accepted for storage, processing, and servicing by the
Administrator of General Services are considered to be maintained by the agency that
deposited them, and the Administrator may not disclose those records except to the
agency that maintains them, or under rules established by that agency which are not
inconsistent with the provisions of the PA. 1 Records transferred to the National
Archives as having sufficient historical or other value to warrant continued preservation
by the government are considered to be maintained by the National Archives, and are not
generally subject to the disclosure provisions or limitations of the PA. 2 Finally,
records in the possession of a government contractor remain subject to the PA, 3 and the
contractor is considered to be an employee of the agency for the purpose of the statutory
criminal penalty provisions. 4 However, a consumer reporting agency to which the
record of a delinquent government claim is disclosed is not considered a government
contractor. 5
An individual cannot be required to sign a release permitting third party disclosure of
information maintained by an agency unless it was constitutional for the agency to gather
the information in the first place, and unless the release specifies both the purpose of
disclosure and the persons to whom it will be made. 6
Footnotes
Footnote 83. 5 USCS 552a(b).
Footnote 87. 5 USCS 552a(7).
Footnote 97. Swenson v U.S. Postal Service (1989, CA9) 890 F2d 1075, 51 BNA FEP
Footnote 98. Hay v Secretary of Army (1990, SD Ga) 739 F Supp 609, 53 BNA FEP Cas
1740.
Footnote 99. 5 USCS 552a(n).
Footnote 1. 5 USCS 552a(l)(1).
Footnote 2. 5 USCS 552a(1)-(3).
Footnote 3. 5 USCS 552a(m).
Footnote 4. 5 USCS 552a(i).
As to criminal sanctions under the Privacy Act, see 2003.
Footnote 5. 5 USCS 552a(m)(2).
Footnote 6. American Federation of Government Employees, etc. v U.S. R. Retirement
Bd. (1990, ND Ill) 742 F Supp 450.
1998 Agency must maintain accounting of disclosures

View Entire Section
The Privacy Act requires federal agencies, with respect to each system of records under
their control, to keep a record of the date, nature, and purpose of each disclosure of a
record to any person or to any agency, as well as the name and address of the person or
agency to whom the disclosure is made. This rule does not apply, however, to
disclosures that are made to officers and employees of the agency itself who have a need
for the record in the performance of their duties, or to those disclosures which are
required under the Freedom of Information Act. 7 These accountings must be retained
for at least five years or the life of the record, whichever is longer, after the disclosure for
which the accounting is made. 8
Observation: When any record has been disclosed, subsequent corrections or

amendments to that record must also be disclosed. 9
Footnotes
Footnote 7. 5 USCS 552a(c)(1).
Footnote 9. 2000.
1999 Gaining access to accounting of disclosures

View Entire Section
Except for disclosures made to another agency or to an instrumentality of any
governmental jurisdiction for civil or criminal law enforcement activity, an agency must,
at his request, make its accounting of the disclosure of a record available to the person
named in the record. 10
Footnotes
2000 Right to seek correction of personal records

View Entire Section
All agencies are required to maintain the records used by them in making any
determination about an individual with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to assure fairness to the individual and the
determination. 11 In order to maintain this accuracy, the Privacy Act requires each
agency maintaining a system of records to provide procedures by which an individual
may seek amendment of a record pertaining to him. 12 The agency must acknowledge
receipt of a correction within ten working day, 13 and promptly either make the
correction requested or inform the individual why it refuses to do so. 14
The Act also requires agencies to provide procedures for review of request denials. If the
reviewing official also refuses to make a correction, the requester must be allowed to file
a statement of his reasons for disagreeing with the denial. 15 However, an agency has
no obligation to review its denial of a correction request under 5 USCS 552a(d)(3)
(footnote 37) if the requestor had no right to review the record in the first instance. 16
If the agency refuses to amend a record and the subject individual files a statement of
disagreement, the statement must be disclosed to other persons and agencies that have
enjoyed access to the records and have been included on the disclosure list. 17
Furthermore, the Act requires each agency to inform any person or other agency about
any correction or notation of dispute made by it in accordance with a correction request
for any record disclosed to the person or agency if an accounting of the disclosure was
made. 18
Footnotes
Footnote 13. 5 USCS 552a(d)(2)(A).
Footnote 14. 5 USCS 552a(d)(2)(B).
2001 Judicial review

View Entire Section
Go to Supplement
An individual can bring a civil action against an agency under the Privacy Act in federal
district court whenever the agency:
(1) makes a determination not to amend his record in accordance with his request; 19
(2) refuses to comply with his request to review his own record; 20
(3) fails to maintain any record concerning the individual with the statutorily-required
accuracy and completeness, 21 and consequently a determination is made which is
adverse to him; or
(4) fails to comply with any provision of the PA in such a manner as to have an adverse
impact upon him. 22
In addition to the subject individual, a parent of any minor, or the legal guardian of any
individual who has been declared to be an incompetent due to physical or mental
incapacity or age by a court of competent jurisdiction may bring an action on behalf of
the individual. 23
Privacy Act civil actions are not available against a private employer, but only against
government agencies. The fact that an employer does business with the federal
government, receives federal funding, and is regulated to some extent by virtue of that
relationship, does not make it subject to the Act's civil remedies. 24
A PA action may be brought in the district in which the complainant resides or has his
principal place of business, in which the agency records are situated, or in the District of
Columbia, 25 and may be maintained without regard to the amount in controversy. 26
As a rule, though, actions must be undertaken within two years from the date on which
the cause of action arose. 27
The two-year limitations period begins to run on the date the plaintiff knows or should
know of the violation. 28
An exception to this rule occurs when an agency has
materially and willfully misrepresented any information required under the PA to be
disclosed to an individual and the information is material to the establishment of the
liability of the agency. In this situation, the action may be brought at any time within two
years after the discovery by the individual of the misrepresentation. 29
In an action to compel the disclosure of records concerning an individual, the court may
examine the contents of agency records in camera to determine whether they may be
withheld under any of the specific exemptions set forth in the PA, 30 and may make its
own disclosure determination in which the burden is on the agency to sustain its refusal
to release the records. 31
An agency cannot exempt itself from civil liability for PA violations. It can only exempt
certain records systems. 32 Thus, civil liability follows automatically if the agency
violates its duty not to make unconsented disclosures of records. 33 However, an
individual has no cause of action under 5 USCS 552a(g)(1) for an agency's denial of a
request to amend records that the agency has properly exempted from the Act's
amendment requirement, since an exemption would serve little purpose if the agency
were still answerable in court for not complying with the requirement. 34
De novo review is available in any action to compel an agency to correct a record. 35
When a federal employee's PA suit requires a court to review the propriety of a personnel
action, the employee may not use the Act to challenge the action in court without having
exhausted the administrative remedies available under the Civil Service Reform Act,
since exhaustion of CSRA administrative remedies is a prerequisite to judicial review of
federal personnel actions. 36
2001 ----Judicial review [SUPPLEMENT]
Case authorities:
Postal employee's Privacy Act (5 USCS 552a) claim relating to improper maintenance
of his files is time-barred, where employee himself stated that he discovered problems
with his files after physical review of them on January 26, 1989, 32 months prior to
commencement of this litigation, because 552a(g)(5) mandates filing of this type of
complaint within 2 years of discovery of improper file maintenance. Harry v United
States Postal Serv. (1994, MD Pa) 867 F Supp 1199.
Merit Systems Protection Board is not authorized to consider FOIA and Privacy Act
claims; proper forum is federal district court after exhaustion of administrative remedies.
Normoyle v Department of the Air Force (1994, MSPB) 65 MSPR 80.
Footnotes
Footnote 19. As to an agency's duty to amend records upon request, see 2000.
Footnote 20. As to the right of an individual to review his own record, see 1996.
Footnote 21. As to such requirements, see 1993.
Footnote 22. 5 USCS 552a(g)(1).
Footnote 24. Unt v Aerospace Corp. (1985, CA9) 765 F2d 1440, 38 BNA FEP Cas 999,
37 CCH EPD 35427.

Footnote 28. Seventh CircuitDiliberti v U.S. (1987, CA7) 817 F2d 1259.
Ninth CircuitEnglerius v Veterans Admin. (1988, CA9) 837 F2d 895.
Tenth CircuitBergman v U.S. (1984, CA10) 751 F2d 314, cert den 474 US 945, 88 L
Ed 2d 287, 106 S Ct 310.
DC CircuitTijerina v Walters (1987) 261 US App DC 301, 821 F2d 789.
Footnote 30. 5 USCS 552a(g)(3)(A).
As to such exemptions, see 1995.
Footnote 31. 5 USCS 552a(b)(3)(A).
Footnote 32. 1995.
Footnote 33. Tijerina v Walters (1987) 261 US App DC 301, 821 F2d 789.
Footnote 36. Houlihan v Office of Personnel Management (1990, CA9) 909 F2d 383.
2002 Civil remedies

View Entire Section
Available remedies under the PA depend on the type of action brought. Equitable relief
may be provided which requires an agency to amend its records, 37 or which enjoins an
agency from withholding records and requires their production. 38 Damages may be
recovered if an agency fails to maintain accurate records or fails to comply with some
other provision of the PA and these actions have an adverse effect on the subject
individual. 39 However, a prerequisite to all damage actions is that the agency must
have acted in a willful or intentional manner. 40 If so, the United States will be liable to
the individual in an amount equal to the sum of:
(1) actual damages sustained by the individual due to the agency's action, but in no case
less than $1,000; and
(2) the costs of the action together with reasonable attorney's fees as determined by the
court. 41
In actions for the correction or disclosure of agency files, the court may assess the United
States reasonable attorney's fees and other litigation costs reasonably incurred in any case
in which the claimant has substantially prevailed. 42
Footnotes
Footnote 42. 5 USCS 552a(g)(2)(B), (3)(B).
2003 Criminal sanctions

View Entire Section
Although civil actions under the Privacy Act are brought against agencies, 43 criminal
sanctions are available against officers or employees of agencies. An officer or employee
who willfully and unlawfully discloses material in any matter to any person or agency not
entitled to receive it, knowing that disclosure of the specific material is prohibited, 44 or
who willfully maintains a system of records without publishing the requisite notice in the
Federal Register, 45 is guilty of a misdemeanor and will be punished by a fine of not
more than $5,000.
Any person may be found guilty of a misdemeanor and fined not more than $5,000 if he
knowingly and willfully requests or obtains from an agency, under false pretenses, any
record concerning an individual. 46
Footnotes
Footnote 43. 2002.
Footnote 44. 5 USCS 552a(i)(1).
Footnote 45. 5 USCS 552(a)(i)(2).
Footnote 46. 5 USCS 552a(i)(3).
b. Obtaining Records of Particular Agencies Under the Privacy Act [2004-2011]

(1). Department of Labor [2004-2007]
2004 An overview
View Entire Section
Pursuant to the Privacy Act requirement that agencies promulgate rules establishing
procedures, 47 the Department of Labor (DOL) has adopted regulations for the
protection of individual privacy in records. 48 The regulations apply whenever a record
containing personal information is maintained in a system of records controlled by the
DOL and the record is retrieved by reference to a personal identifier. 49
Observation: Since the Office of Federal Contract Compliance Programs (OFCCP),

which is a component of the DOL, has not issued its own Privacy Act regulations, the
general DOL regulations apply to that agency.
Echoing the provisions of the Privacy Act itself, 50 the DOL regulations set forth
conditions for disclosure of information, 51 penalties, 52 and general exemptions. 53
The regulations also set forth specific exemptions, 54 procedures applicable to requests
for records or for correction or amendment by subject individuals, 55 and for appeals of
initial adverse determinations on those requests. 56
Footnotes
Footnote 47. 1993.
Footnote 48. 29 CFR Part 70a.
Footnote 49. 29 CFR 70a.1(b).
Footnote 53. 29 CFR 70a.13(a).
Footnote 54. 2005.
Footnote 55. 2006.

Footnote 56. 2007.
2005 Specific exemptions

View Entire Section
The DOL has exempted the following records systems from PA disclosure:
OSEC-2 (Employee Conduct Investigations);
OASAM-17 (EEO Complaint Files);
OASAM-20 (Personnel Investigation Records);
SASAM-22 (Office Civil Rights, Citizen Discrimination Complaint Case Files);
ESA-2 (OFCCP Complaint Files);
ESA-25 (OFCCP Management Information System);
OIG-1 (Inspector General's General Investigative Files);
OIG-3 (Case Development Records);
OIG-4 (Temporary Matching Files; Loss Analysis Files). 57
Footnotes
Footnote 57. 29 CFR 70a.13(d).

View Entire Section
Requests by an individual for the examination, copying, amendment, or correction of
DOL records on the individual should be sent to the Assistant Secretary for
Administration and Management, U.S. Department of Labor, 200 Constitution Avenue,
N.W., Washington, D.C. 20210. Requests may be made in person during normal
working hours or by mail, but in the latter case a notation should be made on the
envelope and on the letter indicating that the communication involves a request under the
Privacy Act. 58 If the request is made in person, an official photograph of the requester
indicating his name is required. 59
Requests should contain sufficient detail to permit identification and location and should
specify the subject matter of the record, the approximate date when made, the place
where made, and the officer that made it. If amendment or correction of the record is
sought, the nature of the amendment or correction should be described. If access or
copying is requested, the time, date, and address for examination of the records should be
proposed. A requestor also should state that financial liability for the costs involved in
responding to the request for information will be assumed. If the requestor wishes to
place a limit to the cost that will be assumed, a limit should be stated. 60
Unless a determination can be made within ten days after receipt of a request, the
disclosure officer must acknowledge receipt to the requestor. 61 Within 30 working
days after receipt of a request, the officer responsible for acting on that request must
determine whether it is to be granted or denied in whole or in part. The requestor must
be immediately notified of the officer's determination and, in the case of a denial, the
reasons for it. The denial must be in writing and must also indicate the name and title or
position of the person responsible. The letter of denial also should contain the procedure
for appealing an adverse determination to the Solicitor of Labor. 62
Footnotes
Footnote 58. 29 CFR 70a.4(a)(2).
Footnote 60. 29 CFR 70a.4(a)(2).
Footnote 61. 29 CFR 70a.4(c)(1).
Footnote 62. As to appeals, see 2007.
2007 Appeals
View Entire Section
An applicant whose request for access, copying, amendment, or correction of a record
has been denied may appeal the denial to the Solicitor of Labor, but must do so within 90
days from the date of the denial. Appeals should be addressed to the Solicitor of Labor,
U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210,
and should request a review of the refusal and include copies of the request and denial.
63 If a decision on an appeal is not made within 30 days (or a ten-day extension
period), the requester will be deemed to have exhausted his administrative remedies and
may seek judicial relief. 64
Where the solicitor has determined that the denial of a request should be upheld, the
requestor will be notified:
of the extent to which the denial has been upheld;
of his right to file with the agency a memorandum setting forth his belief that the record
is erroneous and the reasons for that belief;
that the decision constitutes the final action of the DOL for purposes of judicial review.
65
Where a request to amend a record has been denied by the solicitor, and the requester has
filed a memorandum, the responsible agency official shall, upon receipt of the
memorandum, include it with the relevant record. In addition, the official also may
include with the record a memorandum indicating that a request to amend the particular
record has been denied both by the agency and by the solicitor, and the reasons for the
denial. 66
Footnotes
Footnote 64. 29 CFR 70a.9(c).
Footnote 65. 29 CFR 70a.9(d)(2).
Footnote 66. 29 CFR 70a.9(d)(3).
(2). Equal Employment Opportunity Commission [2008-2011]
2008 An overview
View Entire Section
Pursuant to the Privacy Act requirement that agencies promulgate implementing
procedures, 67 the Equal Employment Opportunity Commission (EEOC) has adopted
regulations for the protection of individual privacy in records. 68 Among other things,
the regulations set forth specific exemptions, 69 procedures applicable to requests for
records or for correction or amendment by subject individuals, 70 and for appeals of
initial adverse determinations on those requests. 71
Footnotes
Footnote 67. 1993.

Footnote 69. 2009.
Footnote 70. 2010.
Footnote 71. 2011.
2009 Specific exemptions

View Entire Section
The EEOC exempts Systems EEOC-1, EEOC-3, and EEOC/GOVT-1 from the Privacy
Act as necessary for law enforcement purposes. These files contain information obtained
during investigations of alleged violations of Title VII, the ADEA, the EPA, the ADA,
and the Rehabilitation Act. Other agencies may obtain information about unlawful
employment practices besides those complained of by the file subject. Also, applying the
Privacy Act to these records would interfere with law enforcement activities. Finally, the
file subjects know the general nature of the information contained in them and already
have access to the information under the FOIA. 72
Footnotes
Footnote 72. 29 CFR 1611.13.

View Entire Section
Any person who wishes to be notified if a system of records maintained by the EEOC
contains any record pertaining to him may request access to such records by submitting a
written request. 73 An individual may request personal inspection of records, as well as
the correction or amendment of records. 74
A request must contain:
the name of the requestor;
the name of the system of records (as set forth in the system notice to which the request
relates);
any other information required by the system notice;
if the request is for access, a statement whether personal inspection or mailed copies is
desired;
if the request is for correction or amendment, a description of the modification, addition,
or deletion desired.
Where to send requests is specified in the system notice. 75
If the request is for access to records by personal inspection, the requestor must present
himself at a time and place agreed to by the EEOC, 76 and present sufficient personal
identification. 77 He may be accompanied by another person if he submits written
authorization for disclosure to that person. 78 If the request seeks copies of records
furnished by mail, it must be accompanied by a signed and notarized statement of
identification, which stipulates that obtaining access to another person's records under
false pretenses is a crime. 79 If the request is for correction or amendment of records,
its envelope should indicate "Personal Information Amendment." 80
On receipt of a request for access, the appropriate EEOC official must acknowledge the
request within ten working days, 81 and issue a decision whether or not to grant access
within 30 working days. 82 Access will not be denied unless the record system is
exempt. 83 If access is denied, the Commission's determination must specify its
reasons, and advise the requestor of his right to appeal. 84
When the Commission receives a request for correction or amendment, the appropriate
official must acknowledge the request within ten working days, and promptly either grant
or refuse the request, informing the requestor of the reasons for refusal and his right to
appeal. 85
Footnotes
Footnote 75. 29 CFR 1611.3(a), 1611.7(a).
Footnote 81. 29 CFR 1611.5(a)(1).

Footnote 82. 29 CFR 1611.5(a)(2).
Footnote 83. 29 CFR 1611.5(a)(5), (6).
As to exemptions, see 2009.
As to appeal rights, see 2011.
2011 Appeals
View Entire Section
An individual who has had a request for access or for correction or amendment refused,
may appeal the determination in writing to the Legal Counsel of the EEOC.
The Legal Counsel or his designee must make a final determination within 30 working
days unless good cause is shown for an extension, the requestor is notified of the reasons
for the extension, and an estimated date for a final determination is given. Extensions
may only be used in exceptional circumstances and normally may not go beyond 30
working days. 86
The standard for reviewing an appeal which must guide the Legal Counsel or his
designee are the requirements of the PA as specified at 5 USCS 552a(e). 87 If the
Legal Counsel or his designee grants all or a part of the request, the requestor must be
informed and the appropriate EEOC official must comply with the procedures in the
regulations. 88 If the request is not granted on appeal, the requestor must be informed
of the reasons for the determination, his right to file a concise statement of reasons for
any disagreement (which will be made available to anyone to whom the record is
subsequently disclosed), the fact that prior recipients of the disputed record will also be
given copies of the statement to the extent that accounts of disclosure are maintained, and
his right to file a federal civil action to review the Legal Counsel's determination. 89
Where a request relates to a system of records for which the EEOC has published a
system notice, an appeal from denial of the request must be submitted in writing to the
Legal Counsel, EEOC, 1801 L Street, NW, Washington, DC 20507. If the request
pertains to a government-wide system of records, the appeal of a denial should be in
writing, identified as a Privacy Act appeal, and submitted to the appropriate agency that
has published a system notice whether it is the Office of Personnel Management (OPM),
Office of Government Ethics (OGE), Merit Systems Protection Board (MSPB), General
Services Administration (GSA), or Department of Labor (DOL). 90 The appeal must
conform to the requirements of the appropriate agency's regulations. 91
Footnotes
5. Getting an Advisory Opinion [2012-2014]
2012 An overview
View Entire Section
A written interpretation or opinion is available from the EEOC on the written request of
any interested person. Regulations provide that the Commission, in its discretion, may
respond to such a request for an advisory opinion on a situation covered by the ADEA,
92 Title VII, 93 or the Equal Pay Act. 94
A formal "opinion letter" is limited to the following:
(1) a written document entitled "Opinion Letter" and signed by the EEOC Legal Counsel
on behalf of and as approved by the Commission;
(2) a written document issued during litigation, entitled "Opinion Letter," and signed by
the General Counsel; or
(3) matters published and specifically designated as such in the Federal Register. 95
Footnotes
Footnote 92. 29 CFR 1626.17.
Footnote 93. 29 CFR 1601.31.
Footnote 95. 29 CFR 1601.33 (Title VII); 29 CFR 1626.18(a)(1) (ADEA).

2013 Obtaining an EEOC opinion

View Entire Section
Requests for opinion letters from the EEOC should be submitted in writing to the
Chairman, Equal Employment Opportunity Commission, 1801 L Street, N.W.,
Washington, D.C. 20507. 96 The request for an advisory opinion must contain a
statement of the relevant facts and the names and addresses of the person making the
request and other interested persons. 97 Title VII regulations require a statement of the
reasons why the interpretation or opinion should be issued. 98 ADEA regulations
require a concise statement of the issues on which the opinion is requested, 99 as do
Equal Pay Act regulations. 1
Footnotes
Footnote 96. 29 CFR 1601.32 (Title VII); 29 CFR 1626.17(a) (ADEA).
Footnote 97. 29 CFR 1601.32(a) and (b) (Title VII); 29 CFR 1626.17(a)(2) and (3)
(ADEA).
Footnote 98. 29 CFR 1601.32(c).
Footnote 99. 29 CFR 1626.17(a)(1).
Footnote 1. 29 CFR 1621.3(a)(1).
2014 Effect of advisory opinions

View Entire Section
An individual cannot be held liable for an unlawful employment practice under Title VII
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. 2 However, only a letter entitled "Opinion Letter" and signed by the Legal
Counsel on behalf of and as approved by the commission (or by the General Counsel on
behalf of and as approved by the EEOC during litigation) or matter published in the
Federal Register and designated as an opinion or interpretation may be considered a
"written interpretation or opinion of the commission." 3 Thus, the receipt of a proper
"Opinion Letter" from the EEOC is necessary to provide a complete defense to an
employment discrimination suit based on a practice that was sanctioned by the letter. 4
Although the EEOC may respond to a written request for an advisory opinion by issuing
either informal advice, 5 or an "Opinion Letter," 6 an informal letter of advice does
not represent the formal position of the EEOC and does not commit the EEOC to the
views expressed in the letter. Thus, only an opinion letter constitutes a valid defense to a
charge of discrimination if relied upon by a potential respondent. 7 In addition, ADEA
regulations state that an opinion letter, when issued to the specific addressee, has no
effect on situations other than that of the specific addressee. 8
Footnotes
Footnote 3. 2012.
Footnote 5. 29 CFR 1626.17 (ADEA); 29 CFR 1621.3(c) (Equal Pay Act).
Footnote 6. 29 CFR 1626.18(a) (ADEA); 29 CFR 1621.3(b) (Equal Pay Act).
Footnote 7. 29 CFR 1626.17(c) (ADEA); 29 CFR 1621.4 (Equal Pay Act).
XI. ADMINISTRATIVE SANCTIONS AND REMEDIES [2015-2037]

Research References
8 USCS 1324a, 1324b; 29 USCS 50-50b, 206, 216, 793, 794; 38 USCS
4212; 42 USCS 2000d-1, 2000e-17; 50 USCS Appx 2410
P.L. 101-649
Ex Or 11246
Ex Or 12250
28 CFR Parts 42, 50; 29 CFR Part 30; 41 CFR Parts 60-1, 60-250
2015 Generally
View Entire Section

Go to Supplement
Various federal laws governing job discrimination on federal projects 9 authorize their
enforcement agencies to impose sanctions at the administrative level on employers and
others found to have violated the laws.
State aspects: Unlike their federal statutory counterparts, many state job
discrimination statutes give their enforcement agencies power to remedy
discriminatory acts. Typically, state agencies having remedial powers are authorized to
issue cease and desist orders, and to grant a full range of affirmative relief including
hiring or reinstatement, admission to union membership, and back pay.
Case authorities:
Administrative judge improperly gave appellant notice of mixed- case appeal rights after
correctly determining that, because CIA is not agency, her claims of prohibited personnel
practices and discrimination were beyond Board's jurisdiction. Cook v CIA (1993,
MSPB) 58 MSPR 542.
Administrative judge's failure to consider appellant's discrimination claim and notify him
of mixed-case appeal rights was harmless error where, although appellant made bare
assertion of discrimination in petition for appeal, he neither asserted it nor introduced
evidence supporting it during hearing. Johnson v Office of Personnel Management (1994,
MSPB) 61 MSPR 293.
Claims of race and gender-based discrimination brought under Human Rights Law by
employees of investment firms should be submitted to arbitration under terms of Uniform
Application for Securities Industry Registration or Transfer (U-4 form), which apply
Federal Arbitration Act (9 USCS 1 et seq.) to such disputes, where employees
executed form as part of their application for registration with various securities
exchanges; to extent that Wertheim & Co. v Halpert (1979) 48 NY2d 681, 421 NYS2d
876, 397 NE2d 386 (ovrld by Fletcher v Kidder, Peabody & Co., 81 NY2d 623, 601
NYS2d 686, 619 NE2d 998, 62 BNA FEP Cas 599, 62 CCH EPD 42610, cert den (US)
126 L Ed 2d 455, 114 S Ct 554, 63 BNA FEP Cas 448), suggests the contrary, it is not to
be followed. Fletcher v Kidder, Peabody & Co. (1993) 81 NY2d 623, 601 NYS2d 686,
619 NE2d 998, 62 BNA FEP Cas 599, 62 CCH EPD 42610, cert den (US) 126 L Ed 2d
455, 114 S Ct 554, 63 BNA FEP Cas 448.
Footnotes

View Entire Section
Under Title VII, no government contract with an employer can be denied, withheld,
suspended, or terminated by any federal agency under any EEO law or Executive Order,
if the employer has had an affirmative action plan for the facility in question accepted by
the government within the last twelve months, unless the employer is first accorded a full
hearing and adjudication, or unless the employer has deviated substantially from the plan.
10
Footnotes
Affirmative action plans are discussed in 700 et seq.
2017 Under Executive Order 11246

View Entire Section
Government contractors and unions are subject to sanctions or penalties for
noncompliance with nondiscrimination provisions in federal contracts under Executive
Order 11246, including:
publishing the names of contractors or unions that have complied or not complied;
recommending that the Department of Justice bring proceedings to enforce the
contractual provisions required by the Order, including enjoining those seeking to
prevent compliance;
recommending that the Equal Employment Opportunity Commission or the Department
of Justice bring appropriate proceedings under Title VII of the Civil Rights Act of 1964;
recommending that the Department of Justice bring criminal proceedings for the
furnishing of false information to a contracting agency or the Secretary of Labor;
canceling, terminating, or suspending a contract, or part of one, for failure to comply
with the contract's nondiscrimination provisions;
requiring that a contracting agency not enter into further contracts with a noncomplying
contractor. 11
Before enforcement proceedings may be instituted by the Department of Justice, or
before a contract is canceled or terminated, the Secretary of Labor must make reasonable
efforts to secure compliance by conference, conciliation, mediation, and persuasion. 12
To accomplish this goal, the OFCCP may require a contractor to enter into a letter of
commitment, which is used as an enforcment tool in correcting minor technical
deficiencies in an affirmative action plan for minorities and women. 13
Under the Executive Order's provisions relating to federal financial assistance in
connection with construction contracts, if any applicant does not live up to its
commitments under the Order, the OFCCP may: (1) cancel, terminate, or suspend, in
whole or in part, the agreement, contract, or other arrangement with the applicant (or
recipient) with respect to which the failure and refusal occurred; (2) not extend further
assistance until satisfactory assurance of future compliance has been received; (3) refer
the case to the Department of Justice or the Equal Employment Opportunity Commission
for appropriate legal proceedings; 14 or (4) require a contractor to enter into a letter of
commitment, which is used as an enforcement tool in correcting minor technical
deficiencies in an affirmative action plan for minorities and women. 15 Sanctions (1)
and (2), however, may not be taken without notice and opportunity for a hearing. 16
Footnotes
Footnote 11. Ex Or 11246 209(a).
Footnote 12. Ex Or 11246 209(b).
Footnote 13. 41 CFR 60-1.33(b).
The OFCCP is discussed, generally at 1221 et seq.
Affirmative action plans for minorities and women are discussed at 658 et seq.
Footnote 14. Ex Or 11246 303(b).
Footnote 15. 41 CFR 60-1.33(b).
Footnote 16. Ex Or 11246 303(c).
2018 Under 503 of the Rehabilitation Act and 402 of the Veterans Act
View Entire Section
Go to Supplement
Contractors and subcontractors that do not comply with the equal opportunity clause
required in all government contracts under 503 of the Rehabilitation Act of 1973 17
and 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 18 are
subject to various administrative sanctions, including:
cancellation or termination, in whole or in part, of the contract or subcontract; 19
debarment from eligibility to receive future government contracts; 20
inclusion on a periodic list bearing the names of debarred contractors; 21
with prior approval of the Director of the OFCCP, withholding of a portion of the
accrued payment due on the contract between the prime contractor and the government.
22
The OFCCP will make efforts to secure compliance through conciliation and persuasion
prior to the imposition of sanctions. 23 In addition, the contractor or subcontractor is
entitled to an opportunity for a hearing before penalties may be imposed. 24
2018 ----Under 503 of the Rehabilitation Act and 402 of the Veterans Act
[SUPPLEMENT]
Regulations:
Footnotes
workers).
workers).
workers).

workers).
2019 Under 504 of the Rehabilitation Act

View Entire Section
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Section 504 of the Rehabilitation Act of Section 1973 requires federal agencies to issue
regulations to assure that qualified individuals with disabilities are not subjected to
discrimination under any program or activity receiving federal financial assistance. 25
Accordingly, the various agencies have issued 504 regulations, which frequently
provide for administrative remedies. For example, the Justice Departmentthe agency
charged with coordinating the implementation and enforcement of 504 26 has
promulgated regulations for its own assistance programs that declare that if the
Department finds that a recipient of aid has discriminated in violation of 504, the
recipient must take whatever remedial action the Department considers necessary. 27
The remedies, procedures, and rights set forth in Title VI 28 are also available to any
person aggrieved by any act or failure to act by a recipient of federal assistance under
504. 29
2019 ----Under 504 of the Rehabilitation Act [SUPPLEMENT]
Case authorities:
Doctrine of administrative estoppel applies to claims brought pursuant to 504 of
Rehabilitation Act (29 USCS 794), and under doctrine, hearing officer's determinations
on issues must be given preclusive effect. Johnson-Goeman v Michigan Dep't of
Commerce (1995, WD Mich) 8 ADD 1005.
Footnotes
Footnote 26. Ex Or 12250 1-201(c).
Footnote 28. 42 USCS 2000d-1, discussed in 2020 and discussed in 2021.

2020 Under Title VI; termination of federal assistance

View Entire Section
Enforcement of nondiscrimination requirements in federally-assisted programs under
Title VI of the Civil Rights Act of 1964 is primarily effected by the termination of, or
refusal to grant or continue, financial assistance to any recipient of a particular program
in which noncompliance has been found. 30 Exercise by the federal agencies of the
right to avoid providing support to noncomplying programs and to use the threat of fund
termination to persuade or induce recipients to dismantle all vestiges of discrimination is
permitted by Title VI. 31
The termination of, or refusal to grant or to continue assistance to, a program must be
limited to the particular recipient or program, or part of it, as to which the finding of
noncompliance is made. The effect of the action also must be limited to the particular
program in which the noncompliance is found. 32 This limitation is mandatory, and the
burden of limiting the effects of termination rests on the administrative agency
responsible for the order of termination. 33 Wholesale cutoffs of federal funds from all
related federally funded programs are not justified by discrimination found in isolated
activities. 34
Termination of financial assistance is subject to the following procedural prerequisites:
(1) advising the recipient of its failure to comply with the requirement; (2) determining
that compliance cannot be secured by voluntary means; (3) affording the recipient an
opportunity for a hearing, which will provide an express finding, on the record, of a
failure to comply with the requirement. 35
In the case of any action terminating, or refusing to grant or continue, assistance because
of failure to comply with a requirement imposed by Title VI, the head of the federal
department or agency must file with the committees of the House and Senate having
legislative jurisdiction over the program or activity involved a full written report of the
circumstances and the grounds for sanction. 36 No sanction can become effective until
30 days have elapsed after the filing of the report. 37
Footnotes
Footnote 30. 42 USCS 2000d-1(1).
Footnote 31. Brown v Califano (1980) 201 App DC 235, 627 F2d 1221.
Footnote 33. Board of Public Instruction v Finch (1969, CA5) 414 F2d 1068.
Footnote 34. Gautreaux v Romney (1972, CA7) 457 F2d 124.
2021 Under Title VI; sanctions other than termination

View Entire Section
Funding agencies have considerable flexibility in responding to instances of
discrimination within sponsored programs. Although Title VI provides for fund
termination as a method of enforcement of nondiscrimination policies, 38 termination is
not mandatory, and the Act provides for effecting compliance by any other means
authorized by law. 39 Other available enforcement methods include:
attempting to secure voluntary compliance through directives and field memoranda;
conditional funding;
referral to the Justice Department for civil action; 40
passing a recalcitrant central agency applicant in order to grant assistance to complying
local agencies. 41
Footnotes
Footnote 38. 2020.
Footnote 39. 42 USCS 2000d-1(2).
Footnote 40. NAACP, Western Region v Brennan (1973, DC Dist Col) 360 F Supp 1006,
Footnote 41. 28 CFR 50.3(c)IB2.
2022 Under the National Apprenticeship Act of 1937
View Entire Section

Under Labor Department regulations issued pursuant to the National Apprenticeship Act
of 1937, 42 sponsors of apprenticeship programs registered with the Department may
face sanctions for failing to meet mandatory equal employment opportunity standards. 43
Specifically, a registered apprenticeship program that is found not to be operating in
accordance with the regulations may be subject to deregistration. After a finding of
reasonable cause, the Department will institute proceedings to deregister the program, 44
or will refer the matter to the EEOC or to the Attorney General with recommendations
for the institution of a court action. 45
Footnotes
Footnote 42. 29 USCS 50-50b.
2023 Under the Equal Pay Act

View Entire Section
Effective April 1, 1990, any employer who repeatedly or willfully violates the Equal Pay
Act's prohibition against discrimination in pay on the basis of sex 46 is subject to a civil
penalty not to exceed $1000 for each violation. The amount of the penalty is determined
in proceedings before the Department of Labor and may be: (1) deducted from any sums
owed by the United States to the person charged; (2) recovered in a civil suit brought by
the Secretary, in which the Solicitor of Labor represents the Secretary; or (3) ordered by
the court in an action brought for repeated or willful violation of the provisions governing
minimum wage, overtime pay, or special certificates. 47
Observation: Because the Equal Employment Opportunity Commission, not the

Department of Labor, enforces the Equal Pay Act, the provisions leave unclear the
means by which civil penalties may be determined in the event of willful or repeated
violations of the EPA.
Footnotes
Footnote 47. 29 USCS 216(e), as amended by P.L. 101-157, 103 Stat 938, 3.
2024 Under the Immigration Act

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An employer or other entity found violating the IRCA's discrimination prohibitions 48
is subject to an administrative order requiring the violator to cease and desist from such
violation, and to pay a civil penalty of not less than $250 and not more than $2,000 for
each unauthorized alien involved in the violation. If a violator has already been subject to
one such order, the fine increases to between $2,000 and $5,000 for each such alien. If
the violator has been subject to more than one such order, the fine increases to between
$3,000 and $10,000 per alien, and the order may include the requirement of a three-year
compliance period, as well as any other appropriate remedial action. 49
Observation: Prior to November 29, 1990, an employer or other entity found in

violation of IRCA's discrimination prohibitions was subject to a civil penalty of not
more than $1,000 for each individual discriminated against, or not more than $2,000
per individual discriminated against in the case of repeated violations. 50
Employers and other entities found in violation of the IRCA's prohibitions against
discrimination are also subject to administrative orders requiring:
compliance with the nondiscrimination provisions for a period of up to three years,
including retention of records showing the name and address of each person who applies
or who is recruited for employment for a fee during that period;
the hiring of individuals directly and adversely affected, with or without backpay; 51
Also, for discrimination occurring on or after November 29, 1990, an employer or other
entity is subject to an administrative order requiring it to:
post notices to employees about their rights and employers' obligations;
educate all personnel involved in hiring and compliance about the act's
nondiscrimination and verification requirements;
remove a false performance review or warnings from an employee's personnel file;
lift any restrictions on an employee's assignments, work shifts, or movements. 52
Backpay liability cannot accrue from a date more than two years prior to the filing of a
charge with an administrative law judge, and will not include interim earnings or
amounts earnable with reasonable dilligence. Furthermore, if the individual was refused
employment for any reason other than discrimination, an administrative order shall not
require that the individual be hired or be given any backpay. 53

2024 ----Under the Immigration Act [SUPPLEMENT]
ALR Fed 381.
Footnotes
Footnote 48. 8 USCS 1324b(g)(2)(B).
The IRCA's discrimination prohibitions are discussed at 163 et seq.
Footnote 50. 8 USCS 1324b(g)(2)(B), prior to amendment by P.L. 101-649.
Footnote 51. 8 USCS 1324b(g)(2)(B).
Footnote 52. 8 USCS 1324b(g)(2)(B)(v)-(viii).
Footnote 53. 8 USCS 1324b(g)(2)(C).
2024.1 Under the Employee Polygraph Protection Act

View Entire Section
The Department of Labor may subject employers found in violation of the Employee
Polygraph Protection Act (EPPA) to a civil penalty of not more than $10,000. 54 In
determining the amount of the penalty, the Secretary of Labor takes into account the
employer's previous compliance record and the gravity of the violation. 55 The factors
that the Secretary may consider in this calculation include:
the employer's history concerning previous investigations under or violations of the
EPPA; 56
the number of employees or prospective employees affected by the violation; 57
the seriousness of the violation; 58
good-faith efforts made by the employer to comply with the EPPA and the regulations
issued under it; 59
if the violations resulted from actions taken by an examiner, the employer's action to
ensure that the polygraph examiner complied with the EPPA and regulations and the
degree to which the examiner's violation was reasonably foreseeable by the employer; 60
whether, considering the employer's explanation, the violation grew out of a question of
legal certainty or a bona fide dispute concerning legal certainty; 61
the extent of loss or damage suffered by the worker; 62
the employer's commitment to future compliance and the public interest. 63
A civil penalty assessed under the EPPA is collected under the same hearing, appeal, and
review procedures as are used in assessing civil penalties under the Migrant and Seasonal
Agricultural Worker Protection Act (29 USCS 1853). 64 Specifically, a civil penalty
assessed in a final order of the Department of Labor is immediately due and payable to
the Administrator by sending a certified check or money order, either delivered
personally or by mail, made out to the Wage and Hour Division, at the Regional Office
where the violation occurred. 65
Footnotes
Footnote 56. 29 CFR 801.42(b)(1).
Footnote 57. 29 CFR 801.42(b)(2).
Footnote 58. 29 CFR 801.42(b)(3).
Footnote 59. 29 CFR 801.42(b)(4).
Footnote 60. 29 CFR 801.42(b)(5).
Footnote 61. 29 CFR 801.42(b)(6).
Footnote 62. 29 CFR 801.42(b)(7).
Footnote 63. 29 CFR 801.42(b)(8).
Footnote 64. 29 USCS 2005(a)(3), discussed at 1855 et seq.
2025 Under the Export Administration Act

View Entire Section

The Secretary of Commerce may impose a penalty of up to $10,000 for each violation of
the Export Administration Act's prohibitions against discrimination 66 or any
regulation, order, or license issued under the Act, either in addition to or instead of any
other penalty that may be imposed. However, the penalty for each such violation
involving national security controls imposed under 50 USCS Appx. 2404 or controls
imposed on the export of defense articles and services under section 38 of the Arms
Export Control Act (22 USCS 2778) may not exceed $100,000. 67 The payment of
any penalty may be made a condition, for a period not exceeding one year, to the
granting, restoration, or continuing validity of an export license, permission, or privilege.
Also, payment may be deferred or suspended in whole or in part during any probation
period (which may exceed one year) that may be imposed. Deferral or suspension does
not bar collection of the penalty if the conditions of the suspension, deferral, or probation
are not fulfilled. 68
Footnotes
Footnote 66. 31.
Footnote 67. 50 USCS Appx 2410(c)(1).
Footnote 68. 50 USCS Appx. 2410(d).
B. Job Discrimination Cases Involving Federal Employment [2026-2032]
Research References
5 USCS 7701
29 CFR Parts 1613, 1614
52 Fed. Reg. 41921
33 Federal Procedure, L Ed, Witnesses 80:206 et seq.
2026 Generally
View Entire Section
Go to Supplement
When a federal agency or the EEOC finds that an applicant or an employee has been
discriminated against, the agency must provide full relief as explained in EEOC's Policy
Statement on Remedies and Relief for Individual Cases of Unlawful Discrimination. 69
and applicants for employment. 70 Such relief must include the following elements in
appropriate circumstances:
(1) notification to all agency employees in the affected facility of their right to be free of
unlawful discrimination and be assured that the particular types of discrimination found
will not recur; 71
(2) the agency's commitment that corrective or preventive action will be taken, or
measures adopted, to ensure that similar violations of the law will not recur; 72
(3) an unconditional offer to each identified victim of discrimination of placement in the
position the person would have occupied but for discrimination or a substantially
equivalent position, 73 although the EEOC assumes that agencies will, when possible,
prefer to offer a substantially equivalent position rather than displacing an employee to
make way for a victim of discrimination; 74
(4) payment to each identified victim of discrimination on a make-whole basis for any
loss of earnings resulting from the discrimination. 75 and
(5) the agency's commitment that it will not engage in the specific unlawful employment
practice found in the case. 76
Where case law dictates that certain remedies not be available, the Policy Statement is
not to be read to require those remedies. In particular, prejudgment interest is not
available, unless a statute has waived sovereign immunity. 77
Regulations:
Footnotes
Footnote 69. 29 CFR 1613.271(a); 29 CFR Part 1613, Appx A; 29 CFR
1614.501(a); 29 CFR Part 1614, Appx A.
Observation: In addition to the remedial measures described above, the EEOC has
issued separate guidelines for remedies in cases involving employees.
See 2027.
Footnote 70. 2028.
See 2027 and See 2028 for further discussion of these separate guidelines.
Footnote 71. 29 CFR 1613.271(a)(1), 1614.501(a)(1).
Footnote 72. 29 CFR 1613.271(a)(2), 1614.501(a)(2).
Footnote 73. 29 CFR 1613.271(a)(3), 1614.501(a)(3).

Footnote 74. 52 Fed. Reg. 41921-41922.
Footnote 75. 29 CFR 1613.271(a)(4), 1614.501(a)(4).
Footnote 76. 29 CFR 1613.271(a)(5), 1614.501(a)(5).
2027 Remedies applicable to federal employees

View Entire Section
If a federal agency or the EEOC finds that an employee of the agency has been
discriminated against, the employee is entitled to remedial action that must include, if
appropriate, but is not limited to:
(1) retroactive promotion with backpay, unless the record contains clearand convincing
evidence that the employee would not have been promoted or employed at a higher
grade, even without discrimination;
(2) elimination of any discriminatory practice and assurance that it will not recur, unless
the record contains clear and convincing evidence that although there was discrimination
at the time selection for promotion was made, the employee would not have been
promoted even without discrimination;
(3) cancellation of an unwarranted personnel action and restoration of the employee;
(4) expunction from the agency's records of any reference to or record of an unwarranted
disciplinary action that is not a personnel action; or
(5) a full opportunity to participate in the employee benefit such as training, preferential
work assignments, and overtime scheduling, that have been denied him. 78
Backpay liability may not accrue from a date earlier than two years before the date the
discrimination complaint was filed, and, in any event, not before the date the employee
would have been promoted. 79
Footnotes
Footnote 78. 29 CFR 1613.271(c).
As to attorney's fees and costs, see 2031 and , see 2032.
Administrative proceeding for federal employees who have been discriminated against
are discussed at 1721 et seq.

Footnote 79. 29 CFR 1613.271(c)(1).
2028 Remedies applicable to federal job applicants

View Entire Section
Go to Supplement
If a federal agency or the EEOC finds that an applicant for employment with the federal
government has been discriminated against, the agency must offer the job the applicant
would have held had there been no discrimination 80
(or, under regulations effective
October 1, 1992, a substantially equivalent position, if justified by the circumstances). 81
However, the agency need not offer the job if clear and convincing evidence indicates
that the applicant would not have been selected even absent the discrimination. 82
Caution: Under the Civil Rights Act of 1991, if an employer has more than one
motive for an adverse action against an employee, but only one motive is
discriminatory, the employee can recover declaratory and injunctive relief and
attorney's fees, but not damages, instatement in the position or other relief. The act,
however, does not require the employer to prove by clear and convincing evidence that
it would not have hired the employee anyway. Thus, while an employer should attempt
to meet the clear and convincing evidence standard as required by the regulation, the
regulation itself may be subject to challenge on the ground that it goes further than the
act. Even in these circumstances, the agency must take all steps necessary to eliminate
the discriminatory practice and ensure that it does not recur. 83
The offer must be made in writing, and the individual has 15 calendar days after receipt
of the offer to accept or decline it. Failure to respond within the 15 days will be
considered a declination of the offer, unless the individual can show that circumstances
beyond his control prevented him from responding within the time limit. 84
If the offer is accepted, appointment is retroactive to the date the applicant would have
been hired, and backpay is awarded from that date until the applicant actually begins
work. 85 Under regulations effective October 1, 1992, applicants are entitled to interest
on backpay awards if sovereign immunity has been waived. 86
If the offer is declined, the agency must award backpay from the date the applicant would
have been hired until the date of the offer, and must inform the applicant in its offer of
employment of the right to the backpay award if the offer is declined. 87 Under
regulations effective October 1, 1992, the agency must pay interest on the backpay
award. 88
A backpay award for a Title VII or Rehabilitation Act complaint may not extend more
than two years before the date on which the complaint was filed. 89
2028 ----Remedies applicable to federal job applicants [SUPPLEMENT]

Regulations:
Footnotes
Footnote 80. 29 CFR 1613.271(b)(1), 1614.501(b)(1).
Footnote 81. 29 CFR 1614.501(b)(1).
Footnote 82. 29 CFR 1613.271(b)(1), 1614.501(b)(1).
Footnote 83. 29 CFR 1613.271(b)(2), 1614.501(b)(2).
Footnote 84. 29 CFR 1613.271(b)(1), 1614.501(b)(1).
Footnote 85. 29 CFR 1613.271(b)(1), 1614.501(b)(1).
Footnote 86. 29 CFR 1614.501(b)(1).
Footnote 87. 29 CFR 1613.271(b)(1), 1614.501(b)(1).
Footnote 88. 29 CFR 1314.501(b)(1).
Footnote 89. 29 CFR 1613.271(b)(4), 1614.501(b)(3).
2029 Remedies for class agent

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When discrimination is found by the employer federal agency or the EEOC the class
agent is entitled to individual corrective action, including an award of attorney's fees and
costs. 90
2029 ----Remedies for class agent [SUPPLEMENT]
Regulations:
Footnotes
Footnote 90. 29 CFR 1613.614(a).
The processing of a class complaint against a federal agency employer is discussed at
1758 et seq.
2030 Remedies in informal adjustment agreements

View Entire Section
In reaching an informal adjustment agreement with a complainant employee or job
applicant, the federal agency employer has authority to award backpay, attorney's fees,
91 or other appropriate relief, including retroactive promotion, even if a formal decision
on the merits of the discrimination charge has not been reached. 92
Footnotes
Footnote 91. 2031.
Footnote 92. Shaw v Library of Congress (1979, DC Dist Col) 479 F Supp 945, 20 BNA
FEP Cas 1483, 21 CCH EPD 30325 affirmed (App DC) 747 F2d 1469 and reversed on
other grounds (US) 478 US 310, 92 L Ed2d 250, 106 S Ct 2957, 41 BNA FEP Cas 85,
40 CCH EPD 36193.
As to attorney's fees, see 2031.
2031 Attorney's fees

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If a federal employee or job applicant is the prevailing party in a Merit Systems
Protection Board appeal and the decision is based on a finding of prohibited
discrimination, the employee or applicant may recover a reasonable attorney's fee. 93
Similarly, declaring that a finding of discrimination raises a presumption of entitlement
to attorney's fees, 94 EEOC regulations specify that in a decision by the employer

federal agency or by the EEOC, an individual complainant 95 or an agent representing
a class 96 may be awarded reasonable attorney's fees that were incurred in processing a
complaint, charge, or claim of discrimination based on race, color, religion, sex, or
national origin 97 and, under regulations effective October 1, 1992, disability
discrimination pursuant to the Rehabilitation Act of 1973. 98
Recommendation: Neither the old regulations nor the regulations effective October
1, 1992, provide expressly for an award of attorney's fees to an individual class
member who files a successful claim for relief after a determining that discrimination
against the class has occurred. A successful class member who incurs attorney's fees
should file a claim for those fees, arguing that nothing in the regulations precludes an
attorney's fee award and that class members should be entitled to fee awards just as
class agents are.
Fees may only be recovered for services of bar members and law clerks, paralegals or
law students under the supervision of bar members. However, no award may be made for
the services of any federal employee. 99
The Comptroller General has specifically authorized the EEOC to include attorney's fees
provisions in its ADEA regulations. 1 However, the D.C. Circuit has held that federal
employees who successfully prosecute age discrimination claims at the administrative
level are not entitled to an award of attorney's fees based on the complete lack of
statutory authority for such an award. 2
The base amount of attorney's fees to be awarded is the number hours reasonably
expended multiplied by a reasonable hourly rate, 3 this amount being calculated in
accordance with existing case law. 4
2031 ----Attorney's fees [SUPPLEMENT]
Regulations:
Case authorities:
Court will not grant attorneys' fees for administrative proceedings that were not necessary
to prosecution of Title VII claims. Williams v Secretary of the Navy (1994, ED NY) 853
Footnotes
Footnote 93. 5 USCS 7701(g)(2).
Footnote 94. 29 CFR 1613.271(d)(1)(i), 1614.501(e)(1)(i).
Footnote 95. 29 CFR 1613.271(d), 1614.501(e).
Footnote 96. 29 CFR 1613.614(a), 1614.204(l)(1), 1614.501(e)(1).

Footnote 97. 29 CFR 1613.271(d)(1).
Footnote 98. 29 CFR 1614.501(e)(1).
Footnote 99. 29 CFR 1613.271(d)(1)(iii), 1614.501(e)(1)(iii).
Footnote 1. 59 Op Comp Gen 728 (1980).
Footnote 2. Kennedy v Whitehurst (1982) 223 App DC 228, 690 F2d 951, 29 BNA FEP
Cas 1373, 30 CCH EPD 33044.
Footnote 3. 29 CFR 1613.271(d)(2)(i)(A), 1614.501(e)(2)(i)(A).
Footnote 4. 29 CFR 1613.271(d)(2)(i), 1614.501(e)(2)(i).
2032 Costs
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In a decision by the employer federal agency or the EEOC, an individual complainant, 5
a class agent, 6 or a class member who files an individual claim for relief 7 may be
awarded reasonable costs that were incurred in processing the complaint, charge, or
claim. 8
Costs that may be awarded are those authorized by 28 USCS 1920. 9
In addition,
witness fees may be awarded in accordance with 28 USCS 1821. However, no award
may be made for a federal employee who is in a duty status when made available as a
witness. 10
2032 ----Costs [SUPPLEMENT]
Regulations:
Footnotes
Footnote 5. 29 CFR 1613.271(d), 1614.501(e)(2)(ii).
Footnote 6. 29 CFR 1613.614(a), 1614.204(l)(1),(2), 1614.501(e)(2)(ii).
Footnote 7. 29 CFR 1613.631(b)(2).
Footnote 8. 29 CFR 1613.271(d)(1), 1614.501(e)(1).

Footnote 9. 29 CFR 1613.271(d)(2)(ii), 1614.501(e)(2)(ii).
Practice References Costs under 28 USCS 1920. 21 Federal Procedure, L Ed,
Judgments and Orders 51:95.
Footnote 10. 29 CFR 1613.271(d)(2)(ii).
Practice References Witness' fees under 28 USCS 1821. 33 Federal Procedure, L
Ed, Witnesses 80:206 et seq.
C. Congressional, Presidential, and Certain Types of State and Local Government
Employment [2033-2037]
Research References
42 USCS 12209
P.L. 102-166
2033 Settlement
View Entire Section
A complaint alleging discrimination in Senate employment may be resolved under the
Government Employee Rights Act of 1991 by the employee and the head of the
particular employing office in accordance with the terms of dismissal or a written
agreement, subject to the approval of the Director of the Office of Senate Fair
Employment Practices. 11
Footnotes
Footnote 11. P.L. 102-166 310.
2034 Equitable relief

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Under the Government Employee Rights Act of 1991, a hearing board finding a violation
of the prohibition against discrimination in Senate employment may order the same
relief, with some exceptions, as would be appropriate under Title VII, 1981, and the
ADEA. 12
Observation: Relief available under Title VII, 1981, and the ADEA includes
hiring or reinstatement, backpayincluding prejudgment interest, and any other
equitable relief considered appropriate. 13 Furthermore, the remedies provided for
unlawful Senate employment practices are also available when the EEOC has found
violations of the prohibitions against discrimination in the employment of presidential
appointees 14 or of individuals chosen or appointed by persons elected to public office
in any state or political subdivision of a state. 15
Similarly, the Civil Rights Act of 1991 provides that the rights and protections provided
under Title VII apply to employment by the House of Representatives or any employing
authority of the House 16 and to employment by each instrumentality of Congress. 17
In matters involving Senate employment under the ADA, the Select Committee on Ethics
or any other designated entity may, to the extent practicable, apply the same remedies
that apply to other employees covered by Title VII, the ADEA, or the Rehabilitation Act
of 1973. These remedies apply exclusively. 18
Observation: The remedies that apply to other employees covered by Title VII, the
ADEA, and the Rehabilitation Act of 1973 include hiring, reinstatement,
backpayincluding prejudgment interest, and any other equitable relief considered
appropriate 19
The remedies provided under the successor to the Fair Employment Practices Resolution
(H Res 558, 100th Cong.), which include employment, reinstatement, promotions, and
other injunctive relief, with or without backpay, 20 apply exclusively to ADA claims
against any employing authority of the House of Representatives. 21
2034 ----Equitable relief [SUPPLEMENT]
Statutes:
Footnotes
Footnote 12. P.L. 102-166 307(h).
Footnote 13. As to relief, generally, see 2858 et seq.
Footnote 14. P.L. 102-166 320(a)(1).
Footnote 15. P.L. 102-166 321(a).
Footnote 16. P.L. 102-166 117(a)(2)(A).
Footnote 17. P.L. 102-166 117(b)(1).
Footnote 18. 42 USCS 12209(a)(5).
Footnote 19. As to relief, generally, see 2858 et seq.
Footnote 20. H Res 15, 101st Cong.
Footnote 21. 42 USCS 12209(b)(2)(B).
2035 Damages
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A hearing board finding a violation of the Government Employee Rights Act of 1991's
prohibition against discrimination in Senate employment may order the same relief, with
some exceptions, as would be appropriate for the same types of discrimination under
Title VII, 1981, and the ADEA. However, a hearing board is not authorized to award
punitive damages. 22
Observation: The relief available under Title VII and 1981 includes compensatory
23 and punitive 24 damages. Compensatory and punitive damages may not be
awarded to remedy age discrimination in Senate employment, since the relief available
under the ADEA does not include those types of damages.
Furthermore, any order requiring the payment of money must be approved by a Senate
resolution reported by the Committee on Rules and Administration. 25 Whenever a
payment is made out of a federal account on behalf of a member of the Senate as a
remedy for an employment practice found to be unlawful under the Act, the member
must reimburse the appropriate account within 60 days after the payment was made. 26
The remedies provided for unlawful Senate employment practices are also available
when violations of the Act's prohibitions against discrimination in the employment of
presidential appointees 27 or of individuals chosen or appointed by persons elected to
public office in any state or political subdivision of a state 28 have been found.
However, whenever a payment is made out of a federal account on behalf of the
President as a remedy for an employment practice found to be unlawful under the Act,
the President must reimburse the appropriate account within 60 days after the payment
was made. 29
Similarly under the Civil Rights Act of 1991, the rights and protections provided under
Title VII apply to employment by the House of Representatives or by an employing
authority of the House 30 as well as to employment by each instrumentality of Congress.
31
Observation: The rights and protections provided under Title VII may reasonably be
construed to include entitlement to compensatory and punitive damages when unlawful
discrimination has been found. However, there is no Civil Rights Act of 1991
provision applicable to the House comparable to the Government Employee Rights Act
of 1991 provision requiring members of the Senate to reimburse the appropriate federal
fund for payments ordered in connection with awards of damages to victims of
discrimination in State employment.
In matters involving Senate employment under the ADA, the Select Committee on Ethics
or any other designated entity may apply the same remedies that apply to other
employees covered by Title VII, the ADEA, or the Rehabilitation Act of 1973. These
remedies apply exclusively. 32
Observation: The remedies that apply to other employees covered by Title VII
include compensatory 33 and punitive 34 damages, while those that apply to
employees covered by the ADEA do not include those types of damages. The courts
do not agree on the availability of compensatory and punitive damages under the
Rehabilitation Act of 1973.
The remedies provided under the successor to the Fair Employment Practices Resolution
(H Res 558, 100th Cong.), which include monetary compensation and additional
payments in cases of serious violations, 35 apply exclusively to ADA claims against any
employing authority of the House of Representatives. 36
2035 ----Damages [SUPPLEMENT]
Statutes:

Footnotes
Footnote 22. P.L. 102-166 307(h).
Footnote 25. P.L. 102-166 307(h).
Footnote 26. P.L. 102-166 323.
Footnote 27. P.L. 102-166 320(a)(1).
Footnote 28. P.L. 102-166 321(a).
Footnote 29. P.L. 102-166 323.
Footnote 30. P.L. 102-166 117(a)(2)(A).
Footnote 31. P.L. 102-166 117(b)(1).
Footnote 32. 42 USCS 12209(a)(5).
Footnote 35. H Res 15, 101st Cong.
Footnote 36. 42 USCS 12209(b)(2)(B).
2036 Costs
View Entire Section
Claimants prevailing under the Government Employee Rights Act of 1991 may be
reimbursed for actual and reasonable costs of attending discrimination complaint
proceedings, consistent with Senate travel regulations and Senate Resolution 259 (S Res
259, 100th Cong.). 37
Observation: The Civil Rights Act of 1991 makes no comparable provision for
recovery of costs by employees or applicants aggrieved by discrimination in House of
Representatives employment.
Footnotes
Footnote 37. P.L. 102-166 311.
2037 Disciplinary sanctions

View Entire Section
Under the Government Employee Rights Act of 1991, the Select Committee on Ethics
retains full power to take disciplinary action against members, officers, or employees of
the Senate for violations of Rule XLII of the Standing Rules of the Senate ( 20,000 et
seq), in accordance with its authority under Senate Resolution 338 (S Res 338, 88th
Cong.). 38
Footnotes
Footnote 38. P.L. 102-166 319(b).
XII. JUDICIAL PROCEEDINGS [2038-2857]

A. Source and Nature of Discrimination Claims, In General [2038-2129]
Research References
5 USCS 552, 701et seq., 7702, 7703; 8 USCS 1324a, 1324b; 15 USCS 49, 50;
18 USCS 1905; 20 USCS 1681 et seq.; 28 USCS 1331, 1343; 29 USCS
161, 206, 209, 216, 621et seq., 626, 633, 633a, 706, 791, 794, 794a; 42 USCS
2000d-1, 2000d-2, 2000d-3, 2000e-5, 2000e-6, 2000e-8, 2000e-9, 2000e-16, 12117; 49
USCS 1302, 1374
FRCP 81
29 CFR Parts 1601, 1602, 1613, 1620, 1626; 41 CFR Parts 60-1, 60-250, 60-741
51 Fed Reg. 29816, 8/20/86.
2 Federal Procedure, L Ed, Administrative Procedure 2:213 et seq.
10 Federal Procedural Forms, L Ed, Government Officers and Employees 35:22

16 Am Jur Pl & Pr Forms (Rev), Labor and Labor Relations, Forms 266, 267
Employment Coordinator 39,201 et seq.
Employment Discrimination Coordinator 80,001 et seq.
Modjeska, Employment Discrimination Law 2d, 2:12-2:14, 4:15, 4:16, 5:16-5:18
1. In General [2038]
2038 Generally
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Many of the federal 39 and state job discrimination 40 and other fair employment
practices laws establish judicial procedures and proceedings for their enforcement.
Depending on the circumstances, such proceedings may be brought to review agency
determinations, 41 or as independent enforcement actions. 42
Practice Aids: Is there a better way? Compulsory arbitration of employment
discrimination claims after Gilmer [Gilmer v. Interstate/Johnson Lane Corp., 114
LEd2d 26 (1991)], 19 Emp Rel LJ 197 (1994).
Private arbitration as the exclusive means of resolving employment-related disputes, 19
Emp Rel LJ 205 (1993).
Legal and practical implications of ADR and arbitration in employment disputes, 11
Hofstra Lab LJ 247 (1993).
Mandatory arbitration of job bias claims: An employer's panacea or simply two bites of
the apple? 45 Lab LJ 10:636 (1994).
Wrongful dismissal arbitration: What can the parties expect? 45 Lab LJ 315 (1994).
Arbitrating employment claims: The state of the law, 46 Lab LJ 4:195 (1995).
Arbitrating employment disputes; How far Gilmer goes remains unclear, 18 Legal Times
2:S27 (1995).
Fleet, discreet, and complete use of ADR in employment law, 26 Md BJ Mar:6 (1993).
Trading substantive values for procedural values: Compulsory arbitration and the Age
Discrimination in Employment Act of 1967 [Gilmer v. Interstate Johnson Lane Corp.,
114 LEd2d 26 (1991)], 5 U Fla J L & Public Policy 343 (1993).
Case authorities:
Where state claim by ADEA plaintiffs against defendant is based upon identical facts
alleged to support federal ADEA claim, district court has supplemental jurisdiction over
state claim. Vreeland v Ethan Allen, Inc. (1993, SD NY) 828 F Supp 14.
Court had power to exercise pendent jurisdiction over Title VII plaintiff's state law claim,
since Title VII and state law claims arose from same case or controversy. Bridges v
Eastman Kodak Co. (1994, SD NY) 850 F Supp 216, 64 BNA FEP Cas 1100.
Employee's claim of sexual harassment under state civil rights law preempted companion
claim for intentional infliction of emotional distress, where outrageous conduct alleged
was encompassed within civil rights law, but did not preempt claims for assault and
battery, where those separate torts were independent of civil rights law's scope.
Greenland v Fairtron Corp. (1993, Iowa) 500 NW2d 36, 62 BNA FEP Cas 484, 8 BNA
IER Cas 1150, 61 CCH EPD 42281.
Footnotes
Footnote 40.
State aspects Most of the state fair employment practices, age discrimination, and
equal pay statutes authorize court suits by state agencies or private parties to review or
enforce administrative decisions in job discrimination cases, or to remedy the adverse
effects of employment discrimination on employees, job applicants, or union members.
These state procedural provisions are identified and discussed in the Employment
Coordinator 39,201 et seq. Further detail regarding state job discrimination statutes
and caselaw is available in the Employment Discrimination Coordinator 80,001 et
seq.
2. Review and Enforcement of Federal Agency Actions [2039-2095]
2039 Generally
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Many federal laws authorize, or have been held by courts to authorize, judicial review or
enforcement of the decisions and other actions of the enforcing federal agencies.
Furthermore, a right to seek review may exist under the federal Administrative Procedure
Act. 43 In particular, judicial review or enforcement of particular federal agency
decisions, orders, or other actions is authorized by:
Title VII. 44
the ADEA. 45
the Equal Pay Act. 46
Executive Order 11246. 47
Title VI. 48
503 of the Rehabilitation Act of 1973. 49
504 of the Rehabilitation Act of 1973. 50
402 of the Veterans Readjustment Assistance Act of 1974. 51
the Immigration and Nationality Act. 52
the Freedom of Information Act. 53
Observation: Judicial review proceedings should not be confused with federal civil
suits to enforce particular statutes. Review proceedings concern final, adjudicatory
actions by an agency. Civil suits are de novo proceedings brought to enforce the
provisions of the statute itself. For example, the EEOC's reasonable cause
determinations in Title VII and ADEA cases have no binding, adjudicatory force.
Thus, they are not subject to judicial review. Rather, Title VII is enforced by civil suits
brought by private parties or the EEOC. 54 Similarly, the EEOC's reconsideration
decisions under 29 CFR 1601.21 are not subject to judicial review. 55
State aspects: Most of the state fair employment practices, age discrimination, and
56
Case authorities:
District court has jurisdiction over action, whether brought by EEOC or individual
employee, which alleges breach of settlement agreement entered into by employee,
employer and EEOC, because such action is "brought under" Title VII; further, in such
action, court also has jurisdiction over claim for breach of employment contract pursuant
to 28 USCS 1367(a). Morigney v Engineered Custom Plastics Corp. (1993, DC SC) 61
BNA FEP Cas 1290.
Action to enforce settlement agreement resolving prior Title VII dispute between parties
is itself actionable under Title VII. James v Texas Dep't of Human Servs. (1993, ND Tex)
818 F Supp 987, 1 ADD 943, 2 AD Cas 753, 61 BNA FEP Cas 1196.
Footnotes
Footnote 43. 2040.
Footnote 45. 2045.
Footnote 46. 2045.
Footnote 49. 2069.
Footnote 50. 2074.
Footnote 51. 2069.
Footnote 54. Civil suits are discussed in 2096 et seq.
Footnote 55. Jackson v Richards Medical Co. (1992, CA6 Tenn) 961 F2d 575, 58 BNA
Footnote 56. These state procedural provisions are identified and discussed in the
Employment Coordinator 39,201 et seq. Further detail regarding state job
discrimination statutes and caselaw is available in the Employment Discrimination
2040 Administrative Procedure Act requirements

View Entire Section

The Administrative Procedure Act (APA) 57 creates a right to judicial review of federal
agency action by persons suffering legal wrong because of, or adversely affected or
aggrieved by, agency action, 58 unless:
(1) a particular statute precludes judicial review; or
(2) the actions of the particular agency are committed to its discretion by law. 59
Final agency actions and those expressly made reviewable by a particular statute, among
others, are reviewable. 60 Thus, where the EEOC issued a subpoena based on a
commissioner's charge, the employer was not permitted to challenge the validity of that
charge before any EEOC attempt to enforce the subpoena. The commissioner's charge
was not a final agency action under the APA and was therefore not ripe for review. 61
However, even final agency actions may not be subject to review in certain
circumstances. For instance, judicial review of final agency action under the APA was
precluded as to:
a decision to terminate a career CIA employee who voluntarily acknowledged his
homosexuality, since the decision had been left to the CIA director's extraordinary
discretion under the National Security Act to terminate individual employees where
"necessary or advisable in the interest of the United States." 62
the U.S. Army's nonadjudicatory decision to hire a person whom the plaintiff alleged
was less qualified than she. 63
U.S. Department of Energy regulations that allegedly had a discriminatory impact on
handicapped, female, and older employees. 64
Review must be sought in a court of competent jurisdiction. Permissible forms of review
are those authorized by particular statutes, declaratory judgment actions, and suits for
writ of prohibitory or mandatory injunction. 65
The APA authorizes courts to stay agency action pending review 66 and allows the
court to overturn agency action found to be arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law. 67
Persons who otherwise have standing to bring a review action under the APA must first
exhaust available administrative remedies. 68
Footnotes
Practice References Judicial review of agency action. 2 Federal Procedure, L Ed
2:213 et seq.

Footnote 61. Mississippi Chemical Corp. v EEOC (1986, CA11) 786 F2d 1013, 40 BNA
Footnote 62. Webster v Doe (1988) 486 US 592, 100 L Ed 2d 632, 108 S Ct 2047, 46
BNA FEP Cas 1671, 3 BNA IER Cas 545, 46 CCH EPD 38034, on remand (App DC)
859 F2d 241, noting that there was no meaningful standard against which a court could
judge the director's exercise of discretion.
Footnote 63. Grier v Secretary of Army (1986, CA11 Ga) 799 F2d 721, 50 BNA FEP Cas
1378, 41 CCH EPD 36667.
Footnote 64. Davidson v United States Dept. of Energy (1988, CA6 Tenn) 838 F2d 850,
108 S Ct 2849, 47 BNA FEP Cas 176, 48 CCH EPD 38452, noting that the claims
should have been raised under Title VII, the ADEA, and the Rehabilitation Act.
Practice References Arbitrary and capricious standard. 2 Federal Procedure, L Ed,
Administrative Procedure 2:232.
Footnote 68. Hardy v Leonard (1974, ND Cal) 377 F Supp 831, 7 BNA FEP Cas 1095, 8
CCH EPD 9438.
2041 APA suits concerning EEOC charge handling

View Entire Section
The APA does not provide a basis for an action against the EEOC arising out of the
Commission's refusal to pursue an investigation of alleged discrimination. 69 Likewise,
a person cannot sue the EEOC under the APA for alleged negligence in processing his
Title VII charge, because any resulting adverse consequences can be cured by filing a
private suit directly against the respondent. 70
Footnotes
Footnote 69. Feldstein v EEOC (1982, DC Mass) 547 F Supp 97, 29 BNA FEP Cas 1394,
30 CCH EPD 33077.

Footnote 70. Ward v EEOC (1983, CA9) 719 F2d 311, 33 BNA FEP Cas 294, 32 CCH
1096, 34 CCH EPD 34309.
2042 Mandamus suits

View Entire Section
A court cannot compel the EEOC by mandamus to conduct an administrative
investigation under Title VII. 71 Similarly, in the absence of an abuse of discretion, it
has been held that the court has no jurisdiction to issue a writ of mandamus or an
injunction against DOL officers to force them to deny government contracts through the
use of Executive Order 11246. 72
Footnotes
Footnote 71. Feldstein v EEOC (1982, DC Mass) 547 F Supp 97, 29 BNA FEP Cas 1394,
30 CCH EPD 33077.
Footnote 72. Welch v Donovan (1982, DC Dist Col) 551 F Supp 809, 30 BNA FEP Cas
1421.
b. EEOC Subpoena Actions [2043-2063]
(1). Scope of Subpoena Power [2043-2045]

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Title VII grants the EEOC access to any evidence relevant to a charge under
investigation. 73
Under EEOC regulations, if any person fails to comply with an administrative subpoena,
the Commission may use the procedures of 11(2) of the National Labor Relations Act
74 to compel enforcement of the subpoena. 75 These enforcement proceedings are full
judicial proceedings, to which the Federal Rules of Civil Procedure apply, 76 unless
otherwise provided by a statute, district court rules, or by order of a court in its
proceedings. 77
2043 ----Under Title VII [SUPPLEMENT]
Case authorities:
Title VII protects more than observance of Sabbath or practices specifically mandated by
employee's religion. Heller v EBB Auto Co. (1993, CA9 Or) 8 F3d 1433, 93 CDOS
8247, 93 Daily Journal DAR 14104, 63 BNA FEP Cas 505, 63 CCH EPD 42663.
Footnotes
Footnote 75. 42 USCS 2000e-9; 29 CFR 1601.16(c).
Footnote 76. FRCP 81(a)(3).
A local court rule requiring parties to meet and discuss disputes before filing any
discovery motion did not apply to an action initiated by the EEOC for enforcement of an
administrative subpoena, since such an action is not a discovery motion. The discovery
provisions of the Federal Rules of Civil Procedure only apply to discovery that seeks to
develop evidence for actions already filed in court, and not to the EEOC's power, derived
under separate statutory authority, to subpoena evidence in the course of investigations.
EEOC v Deer Valley Unified School Dist. (1992, CA9 Ariz) 968 F2d 904, 92 Daily
Journal DAR 9113, 59 BNA FEP Cas 289, 59 CCH EPD 41572.
Footnote 77. EEOC v Bay Shipbuilding Corp. (1981, CA7) 668 F2d 304, 27 BNA FEP
Cas 1377, 27 CCH EPD 32314.
2044 Enforcement of Title VII subpoenas against state and local governments
View Entire Section
The EEOC may bring an action seeking enforcement of an administrative subpoena
against a state or local government agency, despite the provision of 42 USCS
2000e-5(f)(1) that Title VII civil actions against federal, state, and local governments
shall be brought by the U.S. Attorney General. 78 Title VII gives unrestricted
investigatory power to the EEOC. The legislative history of the 1972 amendments, which
made Title VII applicable to states and localities, makes it clear that the EEOC is to refer
a case to the Attorney General for litigation only after having had the opportunity to
complete its investigation and resolve the case. Although a subpoena enforcement action
is a civil action, an overly restrictive definition of that term would be inappropriate to the
purposes of having the EEOC control the investigation of a case and having the Attorney
General adjudicate it. 79
Footnotes
Footnote 78. U.S. EEOC v Illinois State Tollway Authority (1986, CA7) 800 F2d 656, 41
BNA FEP Cas 1105, 41 CCH EPD 36442; EEOC v Missouri, Dept. of Social Services,
Div. of Aging (1986, ED Mo) 648 F Supp 124, 42 BNA FEP Cas 554, 41 CCH EPD
36465; EEOC v Board of Public Education (1986, SD Ga) 643 F Supp 134, 40 BNA FEP
Cas 1654, 40 CCH EPD 364134.
Footnote 79. U.S. EEOC v Illinois State Tollway Authority (1986, CA7) 800 F2d 656, 41
2045 Subpoenas in Equal Pay Act and ADEA investigations

View Entire Section
Section 9 of the Fair Labor Standards Act (FLSA) 80 provides statutory authorization
for the EEOC's subpoena powers under the Equal Pay Act. 81 Similarly, under 262 of
the ADEA, 82 the EEOC is granted the power to make investigations in accordance
with the powers and procedures provided in FLSA 9. Section 9 makes applicable to
subpoenas issued under the Equal Pay Act and the ADEA the provisions for enforcement
of subpoenas issued by the Federal Trade Commission. 83 Under those provisions,
failure to comply with a subpoena may result in a fine of $1,000 to $5,000, and
imprisonment. 84
Regulations under the Equal Pay Act 85 and the ADEA 86 state that there is no right
of appeal to the EEOC from the issuance of a subpoena.
The Federal Rules of Civil Procedure are inapplicable to determining whether an EEOC
subpoena in an ADEA case is overly broad. Rather, a court should order enforcement of
a subpoena if the investigation is within the EEOC's authority, the subpoena is not too
indefinite, and the information requested is reasonably relevant. 87
An employer's affirmative defense to the merits of an ADEA claim may not prevent the
EEOC from investigating a charge through a subpoena enforcement action, since the
absence of an affirmative defense is not a prerequisite to an EEOC investigation. 88
In an ADEA class action brought by the EEOC, the effect of the defendant's failure to
comply with a subpoena seeking the names of employees who had claims for unlawful
mandatory retirement was to toll the statutory complaint-filing period 89 from the date
the subpoena had been served until the date that judicial enforcement was secured. 90
In an ADEA action, an employer is not entitled to a preliminary injunction against

enforcement of an EEOC subpoena. EEOC subpoenas are not self-executing and can
only be enforced by a court in a proceeding in which the employer can raise all of its
objections to the subpoena. 91
Footnotes
Footnote 83. 15 USCS 49, 50.
Footnote 85. 29 CFR 1620.31(b), 51 Fed Reg. 29816, 8/20/86.
Footnote 86. 29 CFR 1626.16(c).
Footnote 87. EEOC v Gladieux Refinery, Inc. (1986, ND Ind) 631 F Supp 927, 40 BNA
Footnote 88. EEOC v American Express Centurion Bank (1991, DC Del) 758 F Supp
Footnote 90. EEOC v Cook County Department of Corrections (ND Ill) No. 84 C 10886,
11/19/86.
Footnote 91. Shoe Works v EEOC (1987, SD Ohio) 45 BNA FEP Cas 1142, 45 CCH
EPD 37759.
(2). Objections to Subpoena [2046-2063]
2046 Irrelevance of evidence requested

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Because the investigatory powers of the EEOC have been construed very expansively, 92
most attacks on subpoenas as requesting irrelevant data can be expected to fail.
EEOC discovery will not necessarily be limited only to the discriminatory practices
alleged in the EEOC charge. 93 The EEOC also may investigate whether the charging
party has been retaliated against by the respondent for having filed the charge, even
though, of course, such an allegation could not have been contained in the original
charge. 94 Further, EEOC discovery will not be limited to the persons named in the
charge. 95 Exceptions have been made, however, and one employer successfully argued
that the EEOC should not be entitled to view records pertaining to supervisory employees
where the charging party was not a supervisor. 96 In another case, an EEOC subpoena
was ruled to be oppressively broad in seeking information concerning 5,000 union
members. Accordingly, the court reduced this requirement to information concerning
every twenty-fifth union member. 97
Objections to EEOC subpoenas can be expected to be upheld if based on the fact that the
EEOC is seeking information not relevant to the basisfor example, sex, race, national
origin, or religionon which the charge being investigated was alleged. 98 Therefore,
where the underlying charge alleged sex discrimination exclusively, the EEOC was not
entitled to have records identified by race as well as sex. 99
Also, it has been said that absent a showing of specific need by the EEOC, an employer
need not supply information in regard to an entire facility, where the charge being
investigated alleges discrimination within a particular division of that facility. 1
However, if separate facilities are part of an integrated enterprise, employees of all
facilities must be considered as "comparative data." 2
Furthermore, if relevant information is contained in computer files, the EEOC asserts that
it may have access to computer information that is essential to review the relevant data,
such as processing information, even though such information does not consist of
employment data. 3
Footnotes
Footnote 93. EEOC Decision No. 74-S-17 (10/30/73) 7 BNA FEP Cas 458, CCH EEOC
Dec 6409.
An objection to a subpoena based on the relevance of the requested evidence was denied
where the materials sought related to the employer's hiring practices, although none of
the charging parties were claiming that the employer discriminatorily refused to hire
them. The complainants had stated in their charges that the employer discriminated
against all women in hiring, promotion, and job classification so that the materials sought
were relevant to claims made in the charge. The EEOC's authority was broad enough to
investigate the allegations made in the charges, even though the practices alleged did not
personally affect the charging. EEOC v Kelly-Springfield Tire Co. (1985, ED NC) 38
where the claim under investigation was one of disparate treatment, and the subpoena
was seeking information about the employer's entire disciplinary system. A claim of
disparate treatment necessarily requires discovery beyond the individual incident that
precipitated the employee's discharge, and investigation into the operation of the
employer's disciplinary program would place the employee's case in context. EEOC v
Kentile Floors, Inc. (1986, ND Ill) 40 BNA FEP Cas 1437, 40 CCH EPD 36170.
Footnote 94. EEOC Decision No. 71-1874 (4/22/71) 3 BNA FEP Cas 1023, CCH EEOC
Dec 6270.
Footnote 95. EEOC v J. P. Stevens & Co. (1974, DC Ala) 8 CCH EPD 9650, 8 BNA
FEP Cas 767.
where a white employee charged that she was discharged for patient abuse but black
employees were not, and EEOC sought data concerning the employer's treatment of every
employee accused of patient abuse during a 13-month period. Without such data, EEOC
could not compare her treatment with that of similarly situated employees to determine
whether there was a basis for her charge. EEOC v St. Louis Developmental Disabilities
Treatment Center (1987, ED Mo) 118 FRD 484, 45 BNA FEP Cas 1061, 49 CCH EPD
38689.
where the employer, in effect, sought to have the court address the merits of the claim in
the subpoena enforcement action. The employer contended that the subpoena requested
information concerning individuals who could not be compared with the charging party
in determining whether she was a victim of unlawful discrimination and offered evidence
of the educational background and employment experience of the other individuals. U.S.
EEOC v Astronautics Corp. of America (1987, ED Wis) 660 F Supp 838, 43 BNA FEP
Cas 1569, 44 CCH EPD 37423.
Footnote 96. Georgia Power Co. v EEOC (1969, CA5) 412 F2d 462.
Footnote 97. EEOC v Local 32B-32J, Service Employees Int'l Union (1992, SD NY) 60
CCH EPD 41831.
Footnote 98. EEOC v New York Times Broadcasting Service, Inc. (1973, WD Tenn) 364
F Supp 651.
227.
Footnote 1. EEOC v Packard Electric Div., General Motors Corp. (1978, CA5) 569 F2d
315.
Footnote 2. EEOC Decision No. 76-S-91 (7/8/76) CCH EEOC Dec 6518.
Dec 6595.
2047 Old records

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Courts have been quite liberal in upholding the EEOC's right to inspect old records.
Respondents' objections to the production of records based on the fact that EEOC
regulations require preservation of employment records for only 6 months 4 have been
rejected, 5 as have arguments that the EEOC must issue any subpoenas during the
120-day period it has to make reasonable-cause determinations, 6 and that the subpoena
cannot go back more than 180 days prior to the date the original charge was filed. 7
Not all timeliness objections to subpoenas are rejected by the courts. In one case, a court
refused an EEOC demand for employer records on the grounds that the demand was
unduly broad because the demand reached back in time nearly eight years and demanded
evidence going to forms of discrimination not charged or alleged. 8 In another case, the
Fifth Circuit approved a District Court's limitation of an EEOC demand letter to a
five-year period. 9 The EEOC has rejected one respondent's claim that no data older
than five years could be inspected, 10 but it has granted a respondent's request to modify
a subpoena that sought information that was more than 11 years old. 11 The EEOC also
has held that there is no general rule that material relating to practices that took place
prior to the effective date of Title VII, July 2, 1965, is automatically irrelevant. 12
Footnotes
Recordkeeping requirements are discussed in 1909 et seq.
Footnote 5. H. Kessler & Co. v EEOC (1971, DC Ga) 53 FRD 330, 4 CCH EPD 7537,
3 BNA FEP Cas 956, affd (CA5) 468 F2d 25, different results reached on reh on other
grounds (CA5) 472 F2d 1147, cert den 412 US 939, 37 L Ed 2d 398, 93 S Ct 2774.
Footnote 6. Steck-Vaughn Co. v EEOC (1974, DC Tex) 8 CCH EPD 9796, 14 BNA
FEP Cas 284.
Reasonable cause determinations are discussed in 1232 et seq.
Footnote 7. EEOC v Kelly-Springfield Tire Co. (1985, ED NC) 38 BNA FEP Cas 194,
36 CCH EPD 35127.
Footnote 8. General Ins. Co. v EEOC (1974, CA9) 491 F2d 133.
Footnote 9. Georgia Power Co. v EEOC (1969, CA5) 412 F2d 462.
Dec 6361.
Dec 6361.
2048 Untimeliness of charge

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Courts are in dispute as to whether an EEOC subpoena based on an untimely charge
should be enforced. One court refused to enforce a subpoena where the underlying
charge was untimely filed, stating that, while a subpoena enforcement proceeding usually
is not a proper forum for resolving substantive issues, the question of timeliness is
jurisdictional as to the EEOC's enforcement authority. Thus, because the EEOC has no
jurisdiction to investigate an untimely charge, no subpoena based on that charge should
be enforced. 13
However, other courts have held that an EEOC subpoena will be enforced despite a claim
that the underlying charge was untimely filed. According to these courts, a proceeding to
enforce an EEOC subpoena is not the proper forum for challenging the timeliness of an
employee's Title VII claim, and the EEOC's investigative authority is not revoked at the
subpoena enforcement stage merely because the party under investigation claims to have
a valid defense to a Title VII lawsuit. 14
Footnotes
Footnote 13. EEOC v Air Products & Chemicals, Inc. (1986, ND Fla) 652 F Supp 113,
42 BNA FEP Cas 1485, later proceeding (CA11 Fla) 883 F2d 940, 50 BNA FEP Cas
1444, 51 CCH EPD 39336, reh den, en banc (CA11 Fla) 889 F2d 276.
Footnote 14. Fourth CircuitEEOC v American & Efird Mills, Inc. (1992, CA4 NC)
964 F2d 300, 58 BNA FEP Cas 1062, 58 CCH EPD 41443, amd (CA4 NC) slip op.
Sixth CircuitEEOC v Roadway Express, Inc. (1984, CA6 Tenn) 750 F2d 40, 36 BNA
Seventh CircuitEEOC v Tempel Steel Co. (1987, CA7 Ill) 814 F2d 482, 43 BNA FEP
Cas 557, 42 CCH EPD 36903.
Eighth CircuitEEOC v Ritenour School Dist. (1988, ED Mo) 692 F Supp 1068, 47
Tenth CircuitEEOC v Sears, Roebuck & Co. (1991, DC Or) 55 BNA FEP Cas 482, 56
CCH EPD 40740.
2049 Charge's lack of specificity
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The courts will not require great specificity in a lay complainant's charge in order to vest
the EEOC with investigatory powers concerning that charge. Therefore, where a charge
provides ample notice of the facts involved, it will trigger the investigatory powers of the
EEOC. 15
Similarly, class allegations in charges of discrimination were sufficiently
specific to support an EEOC subpoena where they set forth the class of persons allegedly
discriminated against and the nature of the discrimination. 16
Commissioner charges are not necessarily held to a higher standard. Commissioner
charges have been held to be sufficiently precise to allow the EEOC to investigate, where
the charges merely alleged:
that an employer was discriminatorily failing or refusing to hire Negroes and Jewish
people; 17
that there was reasonable cause to believe that an employer had engaged in racial
discrimination in violation of Title VII; 18
that an employer discriminatorily failed or refused to recruit or hire, or to provide with
an equal opportunity for promotion, Negroes, American Indians, and Spanish-surnamed
Americans. 19
Footnotes
Footnote 15. Rogers v EEOC (1971, CA5) 454 F2d 234, cert den 406 US 957, 32 L Ed
2d 343, 92 S Ct 2058; EEOC v Michael Constr. Co. (1983, CA8) 706 F2d 244, 31 BNA
Footnote 16. U.S. EEOC v Astronautics Corp. of America (1987, ED Wis) 660 F Supp
838, 43 BNA FEP Cas 1569, 44 CCH EPD 37423, noting that the charges did not have
to meet the requirements of FRCP 23 in order for the subpoena to be enforceable.
Footnote 17. General Employment Enterprises, Inc. v EEOC (1971, CA7) 440 F2d 783.
Footnote 18. Sparton Southwest, Inc. v EEOC (1971, CA10) 461 F2d 1055.
Footnote 19. United States Steel Corp. v U.S. (1973, CA10) 477 F2d 925.
2050 Validity of charge

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An EEOC subpoena may be enforced only if it is based on a valid charge of
discrimination. 20
Thus, where a charge was deficient because it alleged that unlawful
employment practices were continuing but included no dates of the alleged unfair
practices, a subpoena requesting employer information was not enforced. 21 However,
where the EEOC issued a subpoena based on a commissioner's charge, an employer was
not permitted to challenge the validity of that charge before any EEOC attempt to enforce
the subpoena. The commissioner's charge was not a "final agency action" under the
Administrative Procedure Act (5 USCS 704) and was, therefore, not ripe for review.
22
Footnotes
Footnote 20. EEOC v Shell Oil Co. (1984) 466 US 54, 80 L Ed 2d 41, 104 S Ct 1621,
Footnote 21. EEOC v Dean Witter Co. (1980, CA9) 643 F2d 1334, 23 BNA FEP Cas
115, 23 CCH EPD 31064.
Footnote 22. Mississippi Chemical Corp. v EEOC (1986, CA11 Ala) 786 F2d 1013, 40
2051 Irregularities in notice procedures

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The EEOC is required to notify a respondent of a charge filed with the Commission
within ten days of the filing. 23 However, enforcement of one subpoena was not denied
on the ground that the EEOC had not notified the respondent of the charge within ten
days after it was filed where the respondent could show no prejudice resulting from this
failure. 24
Footnotes
244.
2052 Subpoena's lack of specificity

View Entire Section

The EEOC has held that when documents are described within a subpoena with sufficient
particularity to identify the nature of the information sought, the information must be
produced. 25 For example, an EEOC subpoena sufficiently identified the data sought
where it asked for documents demonstrating or relating to the reasons for a former
employee's discharge and documents identifying witnesses to the events or circumstances
that resulted in the discharge. 26
An example of changes made in subpoena language to correct a lack of specificity was a
modification of a subpoena request for "job orders placed in last six months" to read "all
requests for job applicants placed with employment services in the past six months." 27
An EEOC demand for evidence will be refused enforcement when it is phrased as a
"catch all" demand. For example, a demand for evidence that requested "Any and all like
or related records, in addition to those heretofore enumerated, retained in a different form
from the documents heretofore enumerated, but reflective of the substance of such
documents," was refused enforcement and held to be in violation of the good-faith
requirement that demands for discovery be specific. 28
Footnotes
Footnote 26. EEOC v MCI Telecommunications Corp. (1988, DC Dist Col) 45 BNA FEP
Cas 1650, 45 CCH EPD 37767.
Footnote 28. Manpower, Inc. v EEOC (1972, ED Wis) 346 F Supp 126.
2053 Claim that compliance would be burdensome

View Entire Section
Objections to subpoenas based on claims of burdensomeness are often rejected by the
courts. If the information or records sought are relevant or material to the charge under
investigation and if the EEOC proceeds as authorized by Title VII, the material must be
produced. 29 Indeed, it has been held that burdensomeness alone is not a sufficient basis
for refusal to enforce a subpoena. 30
Recommendation: Employers seeking to avoid compliance with an EEOC subpoena

on the grounds of burdensomeness should make initial efforts to compile the requested
information, keeping careful records of the staff time and expense necessary for the
effort, as well as descriptions of any disruption to the employer's business, such as the
necessity of reassigning staff to fill in for those engaged in responding to the subpoena.
Although courts are extremely reluctant to accept employers' arguments of
burdensomeness, they are more likely to do so if the employer has made genuine
efforts to comply and can demonstrate actual disruption of its business.
However, an objection to a subpoena has been upheld where an employer showed that
compliance with the subpoena would threaten the normal operation of the employer's
business. 31 In addition, it is proper for a court to modify a subpoena where the
compilation of information required to respond would be extremely complex or
expensive. 32
Footnotes
Footnote 29. EEOC v Quick Shop Markets, Inc. (1975, ED Mo) 396 F Supp 133, affd
(CA8) 526 F2d 802.
Footnote 30. EEOC v Kelly-Springfield Tire Co. (1985, ED NC) 38 BNA FEP Cas 194,
36 CCH EPD 35127, rejecting an employer's contention that a request was unduly
burdensome because it would take at least 300 hours to compile the data requested, and
noting that the EEOC did not seek compilations of information, but was requesting
specific documents, and some of the requests had been modified to allow the employer
the alternative of making its records available for the EEOC's inspection at the
employer's place of business.
A contention that compliance with an EEOC subpoena would be unduly burdensome was
rejected where the EEOC was requiring the employer to produce the documents at the
EEOC's office and the employer was arguing that it needed only to provide to the EEOC
access to the documents and allow the EEOC to copy them. The employer failed to show
that producing the documents would seriously disrupt its normal business operations.
EEOC v Maryland Cup Corp. (1986, CA4 Md) 785 F2d 471, 40 BNA FEP Cas 475, 39
Cas 1711, 41 CCH EPD 36473.
A contention that compliance with an EEOC subpoena would be unduly burdensome was
rejected where the employer offered only conclusory statements that it could not provide
the information requested and that gathering it would be unduly burdensome. The
employer did not present evidence that it had made an effort to compile the information
or that such an effort would be futile because of the impossibility of gathering it. U.S.
EEOC v Astronautics Corp. of America (1987, ED Wis) 660 F Supp 838, 43 BNA FEP
Cas 1569, 44 CCH EPD 37423.
Cas 1377, 27 CCH EPD 32314.
Footnote 32. Valley Industrial Services, Inc. v EEOC (1983, ND Cal) 570 F Supp 902, 32
2054 Claim that information was submitted previously

View Entire Section
Where an employer objected that information sought in an evidentiary demand was
already contained on an EEO-1 form that had been supplied to the EEOCV, the court
deemed the specific information requested by the EEOC to be supplemental to that
contained in the form and relevant to the charge, and ordered that it be produced. 33
However, where a subpoena required the production of an EEO-1 report that the EEOC
showed no particular need for and appeared to already possess, enforcement was denied.
34
Footnotes
Footnote 33. H. Kessler & Co. v EEOC (1971, DC Ga) 53 FRD 330, affd (CA5) 468 F2d
25, different results reached on reh on other grounds (CA5) 472 F2d 1147, cert den 412
US 939, 37 L Ed 2d 398, 93 S Ct 2774.
Footnote 34. EEOC v Packard Electric Div., General Motors Corp. (1978, CA5) 569 F2d
2055 Unavailability of information sought

View Entire Section
An employer cannot provide what it does not have; consequently, a Title VII respondent
will not be required to compile records that are not kept in the regular course of its
business. 35 However, courts will require the production of records that are kept, even if
this necessitates a certain amount of work to separate the information sought from
otherwise irrelevant records. For example, one employer claimed that it did not maintain
records of its employees by race and sex and that there were no records of hirings,
discharges, promotions, or job classifications other than those that might be gleaned from
its payroll records. The court, having determined that the information sought by the
EEOC was relevant to the charge, ordered that whatever information existed, through
payroll records or other records, would have to be produced. 36 In addition, the EEOC
has the authority to compel a company to produce evidence that does not presently exist
in documentary form. This is true even when, to obtain the information sought, the
company must interview its workers. 37
In another case, the EEOC rejected an employer's contention that it need not produce
documents that were not kept at its corporate headquarters, but rather were maintained at
local plants. The Commission said that since the respondent did not allege that it did not
have control over, or access to, the documents and had admitted that the documents were
relevant, the respondent must comply with the subpoena. 38
Footnotes
Footnote 35. EEOC v J. P. Stevens & Co., (1974, DC Ala) 8 CCH EPD 9650, 8 BNA
FEP Cas 767.
25, different results reached on reh on other grounds (CA5) 472 F2d 1147, cert den 412
US 939, 37 L Ed 2d 398, 93 S Ct 2774.
Footnote 37. EEOC v Maryland Cup Corp. (1986, CA4 Md) 785 F2d 471, 40 BNA FEP
BNA FEP Cas 1711, 41 CCH EPD 36473, noting that, while the company could not be
compelled to interview former employees, it was required to furnish the EEOC a list of
such employees, along with their last known addresses and telephone numbers.
Footnote 38. EEOC Decision No. 75-S-87 (1975) CCH EEOC Dec 6517.
2056 State law

View Entire Section
The fact that a respondent has been subjected to and cleared of unlawful employment
practice charges against it by a state antidiscrimination agency does not preclude
investigation by the EEOC into the same charges brought by the same charging party.
The doctrine of res judicata cannot be invoked to preclude a respondent from being
directed to comply with a demand for access to evidence or a subpoena issued by the
EEOC. 39
Furthermore, an EEOC subpoena was enforceable despite the existence of a state statute
that required a court order for the production of personnel information. Title VII
pre-empted the state law, which prevented the EEOC from obtaining relevant evidence in
its investigations and, consequently, frustrated the federal statutory scheme. 40
In addition, a treatment center could not refuse to comply with an EEOC subpoena on the
ground that the subpoena requested confidential information (the names of persons
mentioned in reports concerning claims of patient abuse), the disclosure of which was
prohibited by state law. It was unnecessary to apply the state statute because the state's
interest in protecting confidential information was served by 42 USCS 2000e-(8). 41
Footnotes
227.
Footnote 40. EEOC v County of Hennepin (1985, DC Minn) 623 F Supp 29, 39 BNA
FEP Cas 1811, 38 CCH EPD 35540.
Footnote 41. EEOC v St. Louis Developmental Disabilities Treatment Center (1987, ED
Mo) 118 FRD 484, 45 BNA FEP Cas 1061, 49 CCH EPD 38689.
2057 First Amendment rights

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A church employer's First Amendment rights did not suffice to enjoin the EEOC from
issuing and enforcing a subpoena, pursuant to its investigation of charges that a teacher
was discharged in retaliation for contacting the EEOC regarding the church's policy of
requiring its staff to become active members of the church. The church's ongoing
activities would not be disrupted by compliance with the subpoena, and the EEOC had
the right to conduct an investigation to determine whether it had jurisdiction over the
church and the plaintiff's claim. 42
Footnotes
Footnote 42. Ninth & O Street Baptist Church v EEOC (1985, WD Ky) 616 F Supp 1231,
38 BNA FEP Cas 1181, 38 CCH EPD 35501, motion den, vacated (WD Ky) 633 F
Supp 229, 40 BNA FEP Cas 239, 39 CCH EPD 35931 and affd without op (CA6 Ky)
802 F2d 459, 42 BNA FEP Cas 1014, later proceeding (WD Ky) 42 BNA FEP Cas 1014,
41 CCH EPD 36689.
2058 Unreasonable searches and seizures

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The EEOC is not required to show probable cause in order for a charge to meet the
requirements of Title VII for the purpose of obtaining subpoena information. 43
In
addition, the Fourth Amendment's proscription against unreasonable searches and
seizures does not preclude the EEOC's demand for evidence if the employer had been
charged with maintaining unlawful, racially discriminatory employment practices, and
the material requested was relevant and material to the charge. 44
Footnotes
Footnote 43. EEOC v A.E. Staley Mfg. Co. (1983, CA7) 711 F2d 780, 32 BNA FEP Cas
USLW 3756, 34 BNA FEP Cas 920, 33 CCH EPD 34289.
Footnote 44. Motorola, Inc. v EEOC (1968, DC Ariz) 317 F Supp 282.
2059 Alleged misconduct of charging party or EEOC employees

View Entire Section
A respondent is unlikely to succeed in resisting an EEOC subpoena demand because of
misconduct by other parties. In one such case, a respondent's contention that a subpoena
should be revoked because the EEOC had denied the company's request to appear and be
heard with respect to alleged improprieties that may have been committed by the
Commission's investigator was rejected, since the respondent had been given a full
opportunity to appear and be heard before the EEOC district and regional representatives.
45
In another case, a court refused to lend credence to an employer's charge of conspiracy
between the charging party and the EEOC based on prior associations of the charging
party with an EEOC investigating officer. Thus, the actions of the charging party were
not attributed to the EEOC in deciding the EEOC's petition for enforcement of its
subpoena. 46
A failure by the EEOC to inform the court that it was already defending
a related action involving the same employer in another court also did not constitute
misconduct sufficient to warrant the denial of the EEOC's request for enforcement of a
subpoena. 47
Footnotes
Dec 6409.
25, different result reached on reh on other grounds (CA5) 472 F2d 1147, cert den 412
US 939, 37 L Ed 2d 398, 93 S Ct 2774.
Footnote 47. Associated Dry Goods Corp. v EEOC (1978, ED Va) 454 F Supp 387.
2060 Laches
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The doctrine of laches (unreasonable delay) may not be invoked by an employer to bar
enforcement by the EEOC of a subpoena issued by it to the employer, when neither
prejudice to the employer nor misconduct by the EEOC has been established. 48 One
court enforced a subpoena issued by the EEOC despite the fact that 27 months had
elapsed between the time a charge was filed and the time the subpoena was issued, in
view of the overwhelming caseload of the EEOC. 49
Footnotes
Footnote 48. EEOC v South Carolina Nat. Bank (1977, CA4) 562 F2d 329.
227.
2061 Confidentiality
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Go to Supplement
The confidentiality of the information requested will not excuse noncompliance with an
EEOC subpoena, since Title VII imposes criminal penalties on EEOC personnel who
publicize information obtained in the course of investigating charges of employment
discrimination. 50
An employer was required to disclose the identity of a co-worker who informed the
employer about dishonesty by the complainant that allegedly was the reason for the
complainant's discharge, even though the EEOC refused to promise to keep confidential
the identity of the informing co-worker. The employer had claimed confidentiality in
order to encourage employees to report the misconduct of other employees. However,
the co-worker had originally reported the dishonesty without asking for anonymity, and
the discharged employee must be allowed to know his accuser so that he could aid the
EEOC in evaluating the co-worker's credibility. 51
2061 ----Confidentiality [SUPPLEMENT]
Case authorities:
EEOC, which believed that transcript of unemployment compensation hearing contained
evidence relevant to investigation it was conducting, was entitled to copy of transcript (as
well as enforcement of subpoena for copy of transcript), irrespective of state statute
which makes unemployment compensation proceedings confidential, since federal law
controls in such situation. EEOC v Illinois Dep't of Employment Sec. (1993, CA7 Ill) 61
Footnotes
Cas 1377, 27 CCH EPD 32314.
Criminal penalties are discussed at 1956 et seq.
Footnote 51. EEOC v MCI Telecommunications Corp. (1988, DC Dist Col) 45 BNA FEP
Cas 1650, 45 CCH EPD 37767.
2062 --Academic freedom privileges

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The Supreme Court has rejected a university's claims that its confidential tenure-review
files were protected from disclosure under an EEOC subpoena in a Title VII charge by
both a common-law qualified privilege against disclosure of such materials, and a First
Amendment right of "academic freedom." The court found that Congress failed to
provide any common-law protection for such materials, as it could have pursuant to FRE
501, when educational institutions were added to Title VII's coverage in 1972. Therefore,
no such privilege would be created by the court in the absence of congressional concern.
Furthermore, "academic freedom" under the First Amendment protects the university
from governmental encroachment on determinations concerning what may be said and
taught, and the institution did not claim that racial, sexual, or national origin
discrimination prohibited by Title VII in the selection of instructors constituted an
academic decision. The university's claim that disclosure of confidential peer-review
information would hinder the selection process in such a way as to infringe on "academic
freedom" was both attenuated and speculative. Thus, the Commission only needed to
demonstrate relevancy in order to obtain such records. 52
Footnotes
Footnote 52. University of Pennsylvania v EEOC (1990) 493 US 182, 107 L Ed 2d 571,
110 S Ct 577, 51 BNA FEP Cas 1118, 52 CCH EPD 39539, 28 Fed Rules Evid Serv
1169, 15 FR Serv 3d 369.
As to medical treatment records protected by state law from disclosure, see 2056.
2063 Required exhaustion of state remedies
View Entire Section

Consistent with the requirements of Title VII that appropriate state procedures be
exhausted before the EEOC acquires jurisdiction over a charge, 53 the Ninth Circuit has
held that all available state remedies must be used before an EEOC evidentiary demand
can be enforced. 54 However, it has been held that the use of deferral procedures by the
EEOC, 55 is sufficient recourse to state or local agencies to vest the EEOC with
jurisdiction over the charge and allow it to investigate. 56
Footnotes
Footnote 54. EEOC v Union Bank (1968, CA9) 408 F2d 867.
Footnote 56. Holly v Alliance Rubber Co. (1974, ND Ohio) 380 F Supp 1128.
c. OFCCP Actions [2064-2070]
(1). Executive Order 11246 Decisions [2064-2068]
2064 Review actions by contractors

View Entire Section
A contractor with the Federal Government may seek judicial review in federal district
court of final OFCCP decisions under Executive Order 11246. 57 The standards
applied on review are those set forth in the Administrative Procedure Act. 58
Footnotes
Footnote 57. Third CircuitJoyce v McCrane (1970, DC NJ) 320 F Supp 1284, 3 BNA
Fifth CircuitFirestone Synthetic Rubber & Latex Co. v Marshall (1981, ED Tex) 507 F
Sixth CircuitTimken Co. v Vaughan (1976, ND Ohio) 413 F Supp 1183, 12 BNA FEP
Cas 1140, 11 CCH EPD 10906.

Seventh CircuitUniroyal, Inc. v Marshall (1978, CA7) 579 F2d 1060, 17 BNA FEP
Cas 1207, 17 CCH EPD 8418.
Tenth CircuitSt. Regis Paper Co. v Marshall (1979, CA10) 591 F2d 612, 18 BNA FEP
The APA is discussed at 2040 et seq.
2065 Review actions by employees and applicants

View Entire Section
Although there is no private right of action against a government contractor under
Executive Order 11246, the courts have permitted private actions against the government
officials responsible for enforcing the order to compel enforcement. 59 Judicial review
is available to have particular government contracts canceled and particular contractors
debarred, to have certain affirmative action plans disapproved, and to prevent further
contracts with the contractor in question until it has ended discriminatory practices. 60
Furthermore, judicial review is available to insure that compliance officials perform their
nondiscretionary duty to refrain from approving plans that do not contain elements
mandated by the regulations. 61
Individuals who allege that they unsuccessfully sought employment with identified
government contractors and were turned away on the basis of discrimination have
standing to sue to compel their enforcement of the requirements of Executive Order
11246. Organizations representing such individuals, such as a legal aid society or a
regional job council, 62 also have standing. 63 The Secretary of Labor and the
director of OFCCP are proper defendants in such actions. 64
Footnotes
Footnote 59. Second CircuitPercy v Brennan (1974, SD NY) 384 F Supp 800, 8 BNA
Ninth CircuitLegal Aid Soc. v Brennan (1979, CA9) 608 F2d 1319, 21 BNA FEP Cas
D.C. CircuitHadnott v Laird (1972) 149 App DC 358, 463 F2d 304, 4 BNA FEP Cas
374, 4 CCH EPD 7678.
Footnote 60. Second CircuitPercy v Brennan (1974, SD NY) 384 F Supp 800, 8 BNA
Ninth CircuitLegal Aid Soc. v Brennan (1979, CA9) 608 F2d 1319, 21 BNA FEP Cas
D.C. CircuitHadnott v Laird (1972) 149 App DC 358, 463 F2d 304, 4 BNA FEP Cas
374, 4 CCH EPD 7678.
Footnote 63. Percy v Brennan (1974, SD NY) 384 F Supp 800, 8 BNA FEP Cas 1213, 8
CCH EPD 9799.
2066 Stays and injunctions pending review

View Entire Section
A party may seek a stay of a final administrative order pending review, but must
demonstrate a likelihood of succeeding on the merits, a danger of irreparable injury, and
that the public interest is in favor of the stay. 65 Similarly, a party may seek a temporary
restraining order and a preliminary injunction to prevent the imposition of sanctions
pending a decision on the merits. 66
Footnotes
Footnote 65. Washington Metropolitan Area Transit Com. v Holiday Tours, Inc. (1977)
182 App DC 220, 559 F2d 841.
2067 Exhaustion of remedies

View Entire Section
Available administrative remedies need not be exhausted where the plaintiff seeks to
enjoin DOL officials from approving affirmative action programs that do not comply
with Executive Order 11246 and its regulations, 67 or where the administrative
procedures would not provide the relief desired by the plaintiffs. 68 However, where the
judicial complaint is directed at the discriminatory acts of a particular contractor in
violating its equal opportunity clause and the relief sought is cancellation of the contract
or debarment of the contractor, an administrative complaint must first be filed with the
OFCCP. 69
Available administrative remedies must also be exhausted before an employer can sue to
challenge an OFCCP determination that it is regulated under Executive Order 11246. 70
Footnotes
Footnote 68. Percy v Brennan (1974, SD NY) 384 F Supp 800, 8 BNA FEP Cas 1213, 8
CCH EPD 9799.
Footnote 69. Hadnott v Laird (1972) 149 App DC 358, 463 F2d 304, 4 BNA FEP Cas
374, 4 CCH EPD 7678.
Footnote 70. USAA Federal Sav. Bank v McLaughlin (1988) 270 US App DC 376, 849
2068 Postjudgment intervention by nonparty contractors

View Entire Section
Nonparty contractors whose affirmative action programs are disapproved in actions
against government officials, thereby subjecting them to administrative enforcement
proceedings, may move under FRCP 24 after judgment has been granted to intervene for
the purpose of reopening the proceedings or for the purpose of appeal. 71
Postjudgment intervention for appeal may be allowed if the contractors act promptly and
meet traditional standing criteria; they must allege a threat of specific injury from the
order they seek to reverse that would be avoided or redressed by a successful appeal. If
admitted as permissive intervenors, the contractors are not required to show that their
stake in the case could not be fully protected elsewhere. 72
Footnotes
As to intervention generally, see 2493 et seq.
Practice References Intervention under FRCP 24. 26 Federal Procedure, L Ed, Parties
59:256-59:424.
(2). Handicap and Veterans' Act Decisions [2069]
2069 Generally
View Entire Section
Go to Supplement
OFCCP regulations governing the enforcement of affirmative action obligations to both
veterans and handicapped workers provide that noncompliance with a prime contractor's
or subcontractor's obligations under the applicable affirmative action clause is a ground
for the OFCCP director, the prime contractor, or the subcontractor to take appropriate
action for noncompliance. 73 Although a complaint investigation that indicates the
existence of a violation must be resolved by informal means whenever possible, 74 the
regulations provide that if informal means do not work, the OFCCP director may take
enforcement action by judicial proceedings seeking injunctive relief. 75
A decision of the Secretary of Labor to forego an enforcement action under 2012 of the
Vietnam Era Veterans' Readjustment Assistance Act of 1972 (VEVRA) is not subject to
judicial review because, under APA principles, the decision whether to take legal action
against a federal contractor accused of violating the statute is a decision committed to
agency discretion. This is because VEVRA states that the OFCCP within the Department
of Labor, after investigation of a 2012 complaint, need only take "appropriate action" in
accordance with the terms of the contract and applicable laws and regulations. The
statute provides no indication of what "appropriate action" is, and lists no factors for
OFCCP to consider in making that determination. Therefore, there are no standards for a
court to use in reviewing the agency's exercise of discretion. 76 On the other hand, the
OFCCP Regional Director's ruling that a federal contractor's former employee was
automatically not a "qualified handicapped individual" under the Rehabilitation Act of

1973, 77 because he was an alcoholic receiving treatment, was reviewed under a
standard requiring affirmance unless it was arbitrary, capricious, abuse of discretion, or
otherwise not in accordance with the law. The standard was not whether the decision has
a "reasonable basis in law," which applies to reviews of agency legal conclusions. 78
Statutes:
29 USCS 706(7)(B), cited in footnote 77 of the bound volume, was deleted in 1992.
Footnotes
Footnote 73. 41 CFR 60-250.27 (veterans), 60-741.27 (handicapped workers).
Footnote 74. 41 CFR 60-250.28(a) (veterans), 60-741.28(a) (handicapped workers).
Footnote 75. 41 CFR 60-250.28(b) (veterans), 60-741.28(b) (handicapped workers).
Footnote 76. Clementson v Brock (1986, CA9 Hawaii) 806 F2d 1402, 124 BNA LRRM
2422, 33 CCF 74923, 42 CCH EPD 36792.
Footnote 78. Healy v Bergman (1985, DC Mass) 609 F Supp 1448, 37 BNA FEP Cas
1589, 37 CCH EPD 35320.
(3). Other Actions [2070]
2070 Review of decisions to release information

View Entire Section
Go to Supplement
Decisions by the OFCCP to release information obtained from employers are subject to
review under the Administrative Procedure Act. 79 Under the APA, 80 if disclosure
of the particular information would violate the statutory prohibition against divulgence of
confidential information by an officer or employee of the United States, 81 the OFCCP's
decision to release the information would be illegal and could be enjoined on that basis.
82
2070 ----Review of decisions to release information [SUPPLEMENT]

Statutes:
Footnotes
1705, 19 BNA FEP Cas 475, 26 CCF 83181, 19 CCH EPD 9121.
d. Agency Actions Against Recipients of Federal Aid [2071-2075]
(1). Title VI Cases [2071-2073]
2071 Generally
View Entire Section
Title VI provides that any department or agency action taken under the statute 83 is
subject to judicial review as may otherwise be provided by law for similar action taken
by the department or agency on other grounds. In the case of actions that are not
otherwise subject to judicial review, such as the termination of, or refusal to grant or
continue, financial assistance because of a failure to comply with the statute, aggrieved
persons may obtain judicial review under the Administrative Procedure Act. Under Title
VI, such actions are not deemed to have been committed to unreviewable agency
discretion within the meaning of the APA. 84
Judicial review of department or agency action under Title VI is had, in the first instance,
in the district court 85 in the absence of a statute declaring that appeal must be had in
another court. 86
The standard of review of administrative action under Title VI is the "arbitrary and
capricious" standard. 87
Footnotes
Footnote 85. Dermott Special School Dist. v Gardner (1968, ED Ark) 278 F Supp 687.
Footnote 86. Gardner v Alabama (1967, CA5) 385 F2d 804, cert den 389 US 1046, 19 L
Ed 2d 839, 88 S Ct 773.
Footnote 87. NAACP v Wilmington Medical Center, Inc. (1978, DC Del) 453 F Supp
280.
2072 Standing to sue

View Entire Section
Title VI explicitly grants review to any person aggrieved by an agency decision to
terminate funds, and provides for review of agency action other than termination of funds
if there is an independent statutory basis for that review. Such a basis will be found in
the Administrative Procedure Act (APA). Thus, to have standing to obtain judicial
review, one must be a "person aggrieved," a classification that includes any state or its
political subdivision and any agency of either, 88 as well as an individual 89 or
organization. 90 The person aggrieved may be the recipient of the benefits of a program
91 who is injured by termination of funds to the program 92 or a third party who is
injured by the discriminatory actions of a program to which the department or agency
does not terminate funding. 93
Where an administrative decision conditions continued funding on a possible impairment
of certain individuals' rights, those individuals must be heard. 94 However, where
voluntary compliance with Title VI is obtained through a plan formulated by a federal
department or agency and a recipient, persons affected by the plan do not have standing
to challenge the proceedings that resulted in formulation of the plan. 95
Footnotes
CCH EPD 9438.
Footnote 90. NAACP v Wilmington Medical Center, Inc. (1980, DC Del) 491 F Supp
290; Southern Christian Leadership Conference, Inc. v Connolly (1971, ED Mich) 331 F
Supp 940.
Footnote 91. Green Street Asso. v Daley (1966, ND Ill) 250 F Supp 139, affd (CA7) 373
F2d 1, cert den 387 US 932, 18 L Ed 2d 995, 87 S Ct 2054.
Footnote 92. Schlafly v Volpe (1974, CA7) 495 F2d 273, 7 BNA FEP Cas 643, 7 CCH
EPD 9292.
CCH EPD 9438.
Footnote 94. Caulfield v Board of Education (1978, ED NY) 449 F Supp 1203, revd on
other grounds (CA2) 583 F2d 605, 18 BNA FEP Cas 7, 17 CCH EPD 8600.
Footnote 95. Linker v United School Dist. (1972, DC Kan) 344 F Supp 1187.

View Entire Section
Only after the appropriate federal agency has followed the procedures provided by Title
VI 96 is judicial review permitted under the statute. 97 Thus, judicial review must
await the outcome of an administrative hearing. 98
The extent of exhaustion required in a particular case depends on a consideration of the
purposes of the exhaustion doctrine and of the particular administrative scheme involved.
99
Footnotes
Footnote 97. Green Street Asso. v Daley (1967, CA7) 373 F2d 1, cert den 387 US 932,
18 L Ed 2d 995, 87 S Ct 2054.
Footnote 98. Taylor v Cohen (1968, CA4) 405 F2d 277.
CCH EPD 9438.
(2). Cases Under Other Laws [2074, 2075]
2074 Rehabilitation Act
View Entire Section

Go to Supplement
Section 504 of the Rehabilitation Act, 1 which protects handicapped individuals from
discrimination under federal grants and programs, incorporates the procedures for
enforcement set forth in Title VI. 2 Thus, a department or agency enforcement action
under Section 504 is subject to judicial review to the same extent as are actions under
Title VI.
It has been held that a person aggrieved by a recipient of federal assistance under 504
of the Rehabilitation Act does not have a private cause of action against the Secretary of
Education for failing to cut off the violator's federal funding. Such a cause of action is
not explicitly provided in the Rehabilitation Act or any other act, and the Secretary is not
vicariously liable for things done or not done by his subordinates. Furthermore,
injunctive relief may only be obtained by a person ordered to act or desist as a result of
an agency adjudication, not by a person aggrieved by the recipient of federal assistance. 3
However, another court held that claims against the government for review of a particular
agency decision not to act regarding alleged discriminatory conduct by a federal fund
recipient exist under 504. An implied cause of action against recipients of federal
funds exists under 504, but only where explicit statutory enforcement duties are
involved, and not where the absence of statutory guidelines has left the matter to agency
discretion. Thus, no basis existed for judicial review of an appealed determination by a
federal agency's civil rights office as to whether an individual's handicap discrimination
complaint constituted a violation of 504 or needed further agency action. 4
The standard of review of administrative action under 504 is the "arbitrary and
capricious" standard. 5
2074 ----Rehabilitation Act [SUPPLEMENT]
Case authorities:
City's blanket disqualification of individuals with insulin- dependent diabetes as
candidates for police officer violates 504 of Rehabilitation Act of 1973 (29 USCS
794). Bombrys v City of Toledo (1993, ND Ohio) 849 F Supp 1210, 6 ADD 839, 3 AD
Cas 651.
Exhaustion of administrative remedies is not required where aggrieved individual who is
not federal employee is suing recipient of federal funds alleging violation of 504 of
Rehabilitation Act (29 USCS 794). Grubbs v Medical Facilities of Am. (1994, WD
Va) 7 ADD 570.
Footnotes
As to enforcement under Title VI, see 2071 et seq.

Footnote 3. Salvador v Bennett (1986, CA7 Ill) 800 F2d 97.
Footnote 4. Marlow v United States Dept. of Education (1987, CA2 NY) 820 F2d 581, 44
Footnote 5. NAACP v Wilmington Medical Center, Inc. (1978, DC Del) 453 F Supp 280,
remanded on other grounds (CA3) 599 F2d 1247.
2075 Title IX
View Entire Section
Under Title IX, which prohibits discrimination in school programs receiving federal
funds, any department or agency action taken under 20 USCS 1682 is subject to such
judicial review as may otherwise be provided by law for similar actions taken by the
agency on other grounds. In the case of action, not otherwise subject to judicial review,
terminating or refusing to grant or to continue financial assistance upon a finding of
failure to comply with any requirement imposed by 1682, any person aggrieved
(including any state or political subdivision and any agency of either) may obtain judicial
review in accordance with the Administrative Procedure Act. 6 Such an action is not
deemed to be committed to unreviewable agency discretion within the meaning of the
Act. 7
Footnotes
e. Agency Actions in Federal Employment Cases [2076-2078]
2076 Decisions on complaints appealable to the EEOC

View Entire Section
If a federal employee or applicant for employment receives a favorable decision at the
administrative level from the EEOC 8 and the federal agency fails to comply with the
order, the aggrieved individual may file a civil suit for enforcement of the order in an
appropriate district court. While the suit is pending, the employer may seek
reconsideration of the case from the EEOC and a stay of the judicial action. However, if
the EEOC unreasonably delays in responding to the reconsideration request and the delay
results in serious prejudice to a party, the court may declare the EEOC inaction to be the
equivalent of a dismissal or denial of the requested action.
Where the district court's finding of unreasonable delay and serious prejudice resulting
from a lengthy delay in processing a request for reconsideration is not clearly erroneous,
it will not be overturned on appeal. 9
Observation: Since EEOC regulations governing appeals do not mandate the manner
and timing for rendering a decision, a former federal employee who sued his employer
for handicap discrimination and appealed the agency decision to the EEOC had no
cause of action in federal court for mandamus to compel the EEOC to decide his case
even though more than two and a half years had passed since he had filed his appeal
with the EEOC. The employee had another remedy because the Rehabilitation Act
incorporates Title VII provisions under which he could have brought a civil action
against his employer in federal court when the commission took no action on his
appeal within 180 days of its filing. 10
Footnotes
Footnote 9. Houseton v Nimmo (1982, CA9) 670 F2d 1375, 28 BNA FEP Cas 666, 28
CCH EPD 32551.
Footnote 10. Klipp v EEOC (1986, MD Pa) 40 BNA FEP Cas 693, 40 CCH EPD
36384.
2077 Judicial review of decisions on complaints appealable to the EEOC

View Entire Section
Go to Supplement
A district court has jurisdiction to review a final order issued by the EEOC on an appeal
from an agency decision. The court engages in de novo review using the arbitrary and
capricious standard, under which the reviewing court does not substitute its discretion for
that of the agency if the agency decision is not contrary to law or has a rational basis in
fact. 11
The United States Claims Court lacks jurisdiction over actions to enforce EEOC remedial
orders resulting from Title VII, ADEA, or Rehabilitation Act charges against the federal
government, since the EEOC is not an executive department over which the claims court
has jurisdiction under the law defining that court's jurisdiction (28 USCS 1491 et
seq.). 12
2077 ----Judicial review of decisions on complaints appealable to the EEOC
[SUPPLEMENT]
Regulations:
Footnotes
Footnote 11. Brooks v Lehman (ED Pa) No. 86-1550, 9/16/86, applying these standards
to hold that the EEOC had properly exercised its discretion in finding that an appeal from
an agency determination was untimely.
A federal court is not bound by a favorable or unfavorable final order of the EEOC issued
in the course of an administrative appeal of a federal employee's discrimination
complaint. Rather, the court must exercise its independent judgment on the merits.
Moore v Devine (1985, CA11 Ga) 767 F2d 1541, 38 BNA FEP Cas 1196, 38 CCH EPD
35675, clarified, on reh (CA11 Ga) 780 F2d 1559, 39 BNA FEP Cas 1644, 40 CCH
EPD 36136.
Footnote 12. Jones v United States (1989) 17 Cl Ct 78.
2078 Decisions on complaints appealable to the MSPB

View Entire Section
Federal employee suits seeking judicial review of decisions of the Merit Systems
Protection Board (MSPB) 13 must be filed in the manner provided in those provisions
of Title VII, the ADEA, and the Equal Pay Act dealing with suits by federal employees
or applicants for employment. 14
Jurisdiction lies exclusively with the district courts, even though an appeal regarding an
adverse federal agency action that does not involve a claim of discrimination goes to the
Court of Appeals for the Federal Circuit. Consequently, since there is no simultaneous
jurisdiction in both courts, an aggrieved individual who erroneously divides his claim and
files in both courts subjects his petition in the court of appeals to dismissal. However, the
individual may request that the petition be transferred to the district court. 15
The federal employee or applicant has the right to have the facts subject to trial de novo
by the reviewing court. 16 However, a plaintiff who did not raise an allegation of
discrimination in his petition for appeal, although he knew of a basis for the allegation,
waived his right to de novo consideration of his discrimination claim in district court. 17
Decisions by the MSPB on discrimination charges may only be overturned if the agency's
decision is arbitrary, capricious, constitutes an abuse of discretion, 18 or was otherwise
not in accordance with law. 19
Where the only issue decided by the MSPB was that it lacked jurisdiction over the
appeal, and the MSPB never ruled on the merits of the discrimination claim, the Federal
Circuit had exclusive jurisdiction to hear the claimant's appeal from the MSPB decision.
20
Footnotes
Footnote 14. 5 USCS 7702(e)(1), 7703(b)(2).
Footnote 15. Christo v Merit Systems Protection Bd. (1981, CA10) 667 F2d 882, 29
BNA FEP Cas 1012, 30 CCH EPD 33085, 30 CCH EPD 33086.
Equitable considerations cannot give a district court jurisdiction over appeals of MSPB
decisions where the issue of discrimination was never raised before the MSPB. Once the
absence of jurisdiction has been determined, the district court must usually dismiss the
case. However, transfer to the Federal Circuit is appropriate if it is in the interest of
justice and where the appeal would have been timely if filed in the proper forum on the
date filed in the district court. Hays v Postmaster General of United States (1989, CA9
Cal) 868 F2d 328, 49 BNA FEP Cas 251, 49 CCH EPD 38721.
Footnote 16. 5 USCS 7702(e)(3), 7703(c).
Footnote 17. Blake v Department of Air Force (1986, CA5) 794 F2d 170.
Federal employees waived their discrimination claims arising from an adverse
employment action by failing to raise an allegation of discrimination in the petition for
appeal, thereby waiving the right to de novo consideration in the district court. Rias v
Walters (1986, ED Pa) 50 BNA FEP Cas 1361.
Footnote 18. Barrash v Bowen (1988, CA4) 846 F2d 927, 46 CCH EPD 37984;Wilder
v Prokop (1988, CA10 Colo) 846 F2d 613.
Footnote 19. Wilder v Prokop (1988, CA10 Colo) 846 F2d 613.
Footnote 20. Wall v United States (1989, CA10 Kan) 871 F2d 1540, 49 BNA FEP Cas
f. Immigration Act Discrimination Cases [2079-2081]
2079 Review of orders concerning findings of discrimination

View Entire Section
A person found guilty of discrimination prohibited by the IRCA, 21 or an unsuccessful
complainant in that proceeding, may seek review of that administrative order in the
circuit court where the violation was alleged to have occurred, or in which the employer
resides or transacts business, not later than 60 days after the order's entry. 22 The
circuit court will have exclusive jurisdiction over such appeals, and its decision is final,
subject to review by the Supreme Court in conformity with 28 USCS 1254. 23
Footnotes
Footnote 22. 8 USCS 1324b(i)(1).
An order is entered for purposes of appellate review under 8 USCS 1324(b)(i)(1) on
the date it is signed and dated by the administrative law judge, and thus, becomes a
matter of public record. The lack of service on the complainant does not prevent the time
for appeal from running once the order is made public. Mesa Airlines v United States
(1991, CA10) 951 F2d 1186, 57 BNA FEP Cas 900, 58 CCH EPD 41264, 21 FR Serv
3d 1005.
Footnote 23. 8 USCS 1324b(i)(2).
2080 Orders concerning findings of discrimination

View Entire Section
If a final administrative order concerning allegations of discrimination prohibited by the
IRCA is not appealed, 24 the Special Counsel for Immigration-Related Unfair
Employment Practices in the Department of Justice may petition the district court where
the violation is alleged to have occurred, or where the defendant resides or transacts
business, for enforcement of that final order. 25 In any such enforcement proceeding,
the administrative law judge's final order may not be subjected to judicial review. 26 If
the appellate court upholds the administrative law judge's final order, it also has
jurisdiction to enter a decree enforcing that order. 27
Footnotes
Footnote 24. 2079.

Footnote 25. 8 USCS 1324b(j)(1).
2081 Enforcement of subpoenas

View Entire Section
A person who refuses to comply with a lawfully issued subpoena in proceedings under
the IRCA is subject to enforcement proceedings in an appropriate district court. The
court may order compliance with the subpoena, punishable by a contempt finding for
failure to obey that order. In proceedings involving the unauthorized alien provisions of
the statute, enforcement suits may be brought by the Attorney General. 28 In
proceedings involving the discrimination prohibitions in the statute, suits may be brought
by the administrative law judge. 29
Footnotes
Footnote 28. 8 USCS 1324a(e)(2)(B).
Footnote 29. 8 USCS 1324b(f)(2).
g. Review of Employment Determinations Under the Government Employee Rights
Act of 1991 [2082-2092]
2082 Determinations regarding Senate employment

View Entire Section
The Government Employee Rights Act of 1991 (Title III of the Civil Rights Act of 1991)
provides that any party aggrieved by a final decision of the Select Committee on Ethics,
or of the Office of Senate Fair Employment Practices, if no timely request for review by
the Select Committee was filed, may file a petition for review of the decision with the
United States Court of Appeals for the Federal Circuit. An aggrieved party may be an
employee or applicant for Senate employment or a member of the Senate who is required
to reimburse the appropriate federal account for payments made to remedy violations of
the Civil Rights Act of 1991. 30 The petition must be considered in accordance with the
statute governing judicial review of federal agency orders (28 USCS 2341 et seq.) 31
and the Act's requirements regarding standard of review. 32
The Court of Appeals for the Federal Circuit must determine any issue regarding the
constitutionality of the Act's provisions providing for judicial review of final decisions of
the Select Committee or the Office with respect to Senate employment. 33
The Act's procedures governing commencement of judicial proceedings to redress
alleged discrimination in Senate employment are exclusive. 34
Observation: The Civil Rights Act of 1991 makes no corresponding provision for
the judicial review of determinations regarding alleged discrimination in employment
by the House of Representatives or the instrumentalities of Congress.
Footnotes
Footnote 30. P.L. 102-166 309(a).
Footnote 31. P.L. 102-166 309(b).
Footnote 32. P.L. 102-166 309(c).
Footnote 33. P.L. 102-166 325(b).
Footnote 34. P.L. 102-166 325(b).
2083 Determinations regarding employment of presidential appointees or

employment by state and local elected officials
View Entire Section
The Government Employee Rights Act of 1991 (Title III of the Civil Rights Act of 1991)
provides that any party aggrieved by a final order of the EEOC or other designated entity
with respect to employment of presidential appointees, 35 or employment by elected
state or local officials, 36 may petition for review by the U.S. Court of Appeals for the
Federal Circuit. This judicial review must be conducted in accordance with the statute
governing judicial review of federal agency orders (28 USCS 2341 et seq.), 37 and
the Act's requirements regarding standard of review. 38
The Court of Appeals for the Federal Circuit must determine any issue regarding the
constitutionality of the Act's provisions providing for judicial review of final decisions of
the Select Committee or the Office with respect to Senate employment. 39
Footnotes
Footnote 35. P.L. 102-166 320(a)(3)(A).
Footnote 36. P.L. 102-166 321(c).
Footnote 37. P.L. 102-166 320(a)(3)(B).
Footnote 38. P.L. 102-166 320(a)(3)(C), 321.
Footnote 39. P.L. 102-166 325(b).
h. Migrant and Seasonal Agricultural Workers Protection Act Cases [2084-2092]
(1). Review [2084-2086]
2084 An overview
View Entire Section
Go to Supplement
Within 30 days after the entry of a final order under the Migrant and Seasonal
Agricultural Workers Protection Act (MSPA), 40 an aggrieved party may obtain review
by the United States District Court by filing a notice of appeal and simultaneously
sending a copy of the notice by registered mail to the Secretary of Labor. 41 Upon
receipt of the notice, the Secretary will promptly certify and file in the court the record on
which the order was based. 42 If a hearing was held, the full record is supplied by the
DOL's Chief Administrative Law Judge. 43
If a person subject to a civil penalty assessment does not seek judicial review, the order is
not reviewable when the government brings a civil action to enforce the penalty. 44
2084 ----An overview [SUPPLEMENT]
Case authorities:
Defendants are denied summary dismissal on defense of contributory negligence but are
also granted dismissal of punitive damages claim, where they are sued under Migrant and
Seasonal Agricultural Worker Protection Act (29 USCS 1801 et seq.) for transporting
plaintiff in unsafe vehicle, because (1) liberal construction of this social legislation which
makes no provision for defense of contributory negligence should result in disallowing it,
and (2) absence of evidence in record of willful, wanton, or reckless conduct requires
deletion of punitive damages claim. Ricketts v Vann (1993, ED NC) 861 F Supp 404,
affd (1994, CA4 NC) 32 F3d 71, 128 CCH LC 33120.
Footnotes
Footnote 41. 29 USCS 1813(c), 1853(c).
Footnote 42. 29 USCS 1813(c), 1853(c).
Footnote 43. 29 CFR 500.271.
Footnote 44. U.S. v Meza (1980, SD Fla) 498 F Supp 385.
2085 Venue
View Entire Section
The aggrieved party in a proceeding under the Migrant and Seasonal Agricultural
Workers Protection Act (MSPA) may obtain review in the District Court for the district
in which the aggrieved party is located, or in the United States District Court for the
District of Columbia. 45
Footnotes
Footnote 45. 29 USCS 1813(c), 1853(c).
2086 Standard of review

View Entire Section
In reviewing the Department of Labor's action under the Migrant and Seasonal
Agricultural Workers Protection Act (MSPA), the court will apply the tests prescribed by
the Administrative Procedure Act. 46 The DOL's findings of fact will not be set aside if
supported by substantial evidence. 47
Footnotes
Footnote 46. Samuel v Donovan (1981, MD NC) 512 F Supp 375.
The Administrative Procedure Act is discussed at 2040.

Footnote 47. 29 USCS 1813(c), 1853(c).
(2). Enforcement [2087-2089]
2087 An overview
View Entire Section
If the Secretary of Labor determines that the Migrant and Seasonal Agricultural Workers
Protection Act (MSPA), or any regulation under the Act, has been violated, the Secretary
may petition any appropriate District Court for temporary or permanent injunctive relief.
48 The appropriate district is the one where the defendant resides. 49
If the Secretary determines that retaliatory action has been taken against a worker, the
Secretary will institute an action in the appropriate District Court to restrain the violation
and seek such other appropriate relief, including rehiring or reinstatement of the worker,
with backpay or damages. 50
The Solicitor of Labor may appear for and represent the Secretary in any civil litigation
under the MSPA, but all such litigation is subject to direction and control of the Attorney
General. 51
Footnotes
Footnote 48. 29 USCS 1852(a)
Footnote 49. Marshall v Marrero (1982, ED Pa) 536 F Supp 517, affd (CA3) 695 F2d
791.

View Entire Section
Go to Supplement
In conducting an investigation upon a complaint or upon his own initative under the
Migrant and Seasonal Agricultural Workers Protection Act (MSPA), the Secretary of
Labor may issue subpoenas requiring the attendance and testimony of witnesses or the
production of any evidence in connection with the investigation. 52 The Secretary's
subpoena power is limited only by requirements of reasonableness and relevancy. 53 If
a subpoena is disobeyed, the Secretary may invoke the assistance of a Federal District
Court to issue an order requiring the person or business organization to obey the
subpoena. 54 The party attempting to quash or modify the subpoena has the burden of
proving the absence of reasonableness or relevancy. 55
2088 ----Enforcement of subpoenas [SUPPLEMENT]
Case authorities:
District court erred when it refused to enforce EEOC investigatory subpoena on ground
that EEOC lacked jurisdiction over matter because underlying charge was untimely, since
it was not clear from face of charge or otherwise apparent that charge was untimely.
EEOC v City of Norfolk Police Dep't (1995, CA4 Va) 45 F3d 80, 66 BNA FEP Cas
1425.
Footnotes
Footnote 53. Donovan v Mehlenbacher (1981, CA2) 652 F2d 228.
Footnote 55. Donovan v Mehlenbacher (1981, CA2) 652 F2d 228.
2089 Enforcement of civil penalties

View Entire Section
Under the Migrant and Seasonal Agricultural Workers Protection Act (MSPA), if any
person fails to pay a civil penalty assessment after it has become a final and unappealable
order, or after the court on judicial review has entered final judgment in favor of the
agency, the Secretary of Labor will refer the matter to the Attorney General for recovery
in an action in the appropriate U.S. District Court. 56 In such an action, the validity and
appropriateness of the final order imposing the penalty is not subject to review. 57
Footnotes

i. Employee Polygraph Protection Act Cases [2090-2092]

View Entire Section
The Secretary of Labor may bring suit in any District Court that is authorized to issue an
order for the purpose of requiring a person to obey a subpoena issued under the
Employee Polygraph Protection Act. 58
Footnotes
2091 Restraining orders and injunctions

View Entire Section
The Secretary of Labor may bring an action to restrain violations of the Employee
Polygraph Protection Act, and the Solicitor of Labor is authorized to appear on the
Secretary's behalf in such proceedings. 59
Footnotes
2092 Enforcement of civil penalties

View Entire Section
Whenever an order of the court or the Secretary of Labor concerning unpaid civil
penalties becomes final and unappealable under the Employee Polygraph Protection Act,
the Secretary may refer the matter to the U.S. Attorney General for recovery. 60
Footnotes
Footnote 60. 29 CFR 801.40(a)(3).
j. FOIA Cases [2093-2095]
2093 Generally
View Entire Section
Judicial review is available to test the propriety of an agency's decision to withhold
information under any of the conditions set forth in the Freedom of Information Act
(FOIA). 61 For example, a disclosure under the FOIA that violates the Trade Secrets
Act 62 is not in accordance with law and may be stopped by a District Court. Such a
determination, since it is under the Administrative Procedure Act, ordinarily does not
involve the de novo review that would take place if the agency action were being
reviewed under the FOIA. 63
On the other hand, agency decisions with respect to the
waiver of copying costs are subject to de novo review by a District Court. 64
Footnotes
Footnote 61. American Mail Line, Ltd. v Gulick (1969) 133 App DC 382, 411 F2d 696.
As to the Freedom of Information Act, generally, see 1966 et seq.
Footnote 64. Long v IRS (1983, WD Wash) 566 F Supp 799.

View Entire Section
Although the FOIA does not expressly require that a claimant exhaust his administrative
remedies before seeking judicial review, it clearly implies that exhaustion is required.
Furthermore, it has been held that a party must present proof of exhaustion of
administrative remedies prior to seeking judicial review under the FOIA. 65
Footnotes
Footnote 65. Hedley v U. S. (1979, CA5) 594 F2d 1043.
2095 Judicial enforcement of FOIA

View Entire Section
The FOIA provides that upon complaint, the appropriate District Court has jurisdiction to
enjoin an agency from withholding agency records and to order the production of any
agency records improperly withheld from the complainant. The Act also provides
punishment for contempt where an order is met with noncompliance. 66
Footnotes
3. Administrative Agency and Private Enforcement Suits [2096-2129]
2096 An overview of federal civil suits

View Entire Section
Virtually all of the federal job discrimination laws specifically authorize enforcement
suits by the administrative agencies responsible for administering the laws. In addition,
private enforcement suits are created by, or judicially implied under, some of the laws.
Agency enforcement suits are authorized by:

Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974; 73
Section 503 of the Rehabilitation Act of 1973. 74
Private enforcement actions are available under:
Title VII; 75
42 USCS 1981, 76 42 USCS 1983, and 42 USCS 1985; 77
the ADEA; 78
Title VI; 80
Section 504 of the Rehabilitation Act of 1973; 81
the Export Administration Act. 82
However, individuals have no private right of action under:
Section 402 of the Veterans Act; 85
Section 503 of the Rehabilitation Act; 86
the antidiscrimination provisions of the Federal Aviation Act. 87
Job discrimination suits by federal employees are authorized by:
Title VII; 88
the ADEA; 89
Section 504 Of the Rehabilitation Act of 1973. 91
State aspects: Most of the state fair employment practices, age discrimination, and
92
Footnotes
Footnote 68. 2112.
Footnote 69. 2114.
Footnote 70. 2115.
Footnote 71. 2117.
Footnote 72. 2120.
Footnote 73. 2123.
Footnote 74. 2123.
Footnote 76. 2110.
Footnote 77. 2110.
Footnote 78. 2112.
Footnote 79. 2115.
Footnote 80. 2121.
Footnote 81. 2124.
Footnote 82. 2129.
Footnote 83. 2118.
Footnote 84. 2119.
Footnote 85. 2123.
Footnote 86. 2123.
Footnote 87. 2126.
Footnote 88. 2098.

Footnote 89. 2113.
Footnote 90. 2116.
Footnote 91. 2125.
Footnote 92. These state procedural provisions are identified and discussed in the
Employment Coordinator 39,201 et seq. Further detail regarding state job
discrimination statutes and caselaw is available in the Employment Discrimination
b. Title VII Cases [2097-2109]
(1). In General [2097-2099]
2097 Generally
View Entire Section
Go to Supplement
Suits may be brought under Title VII of the Civil Rights Act of 1964 against a private
employer, union, employment agency, or joint labor-management training committee.
Title VII may be enforced through actions by both private individuals 93 and by the
EEOC. 94
United States District Courts and the courts of places subject to the
jurisdiction of the United States have the power to hear individual actions brought by
private individuals or the EEOC, 95
and pattern-or-practice suits brought by the
EEOC. 96
Title VII mentions four different rights of suit, three by the EEOC and one by private
parties. Since the EEOC also can sue to enforce a conciliation agreement that it feels a
respondent has breached, 97 and because the private right of suit can arise in three
different ways, there are a total of eight paths by which a Title VII controversy can be
taken to court. 98
A Title VII case proceeds much as any civil action, although myriad technical problems
unique to Title VII suits have developed concerning such issues as the jurisdiction of a
court to hear a Title VII case, 99 who are proper parties, 1 when class actions can be
maintained, 2 proper pretrial procedures, 3 and discovery. 4
Observation: A Title VII trial is a trial "de novo"that is, it begins from scratch, with
the entire administrative procedure that preceded it of limited relevance or import. 5
It is generally agreed that there is no right to jury trial in Title VII actions.

Case authorities:
Title VII claims may be subject to arbitration. Williams v Katten Muchin & Zavis (1993,
Footnotes
Forms: Complaint in federal courtRequest for reliefEmployee's action under Section
706 of Civil Rights Act of 1964Plaintiff discriminated against and discharged. 16 Am
Jur Pl & Pr Forms (Rev), Labor and Labor Relations, Form 267.
Footnote 94. 42 USCS 2000e-5, 2000e-6.
Forms: Complaint in federal courtAllegationEmployees' action under Section 706
of Civil Rights Act of 1964Charge filed by member of commission. 16 Am Jur Pl &
Pr Forms (Rev), Labor and Labor Relations, Form 266.
Title VII claims may be brought in either a state or a federal court. Yellow Freight
System, Inc. v Donnelly (1990) 494 US 820, 108 L Ed 2d 834, 110 S Ct 1566, 52 BNA
Footnote 96. 42 USCS 2000e-6(b), discussed at 2104.
Footnote 98. The eight paths are discussed in 2100-2103 and discussed in
2106-2109.
2098 Suits by federal employees

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Go to Supplement
Under 717 of Title VII, a federal employee or applicant for employment, 6 as well as a
class agent or individual class member who filed a claim for relief, 7 who is aggrieved
by the federal agency's or the EEOC's final disposition of his discrimination complaint, or
by the failure to take final action on his complaint, may file a civil action in federal
District Court. 8 The filing of a 717 action does not terminate federal agency
processing of a discrimination complaint or claim for individual relief, or EEOC
processing of an appeal. 9
Observation: Title VII is not the exclusive remedy for discrimination suits against
individual federal employees sued in their individual capacities. These suits do not
violate sovereign immunity or threaten the depletion of the public's treasury, which is
one reason why Title VII is usually the exclusive remedy for federal employees
alleging discrimination. 10
The provisions of 42 USCS 2000e-5(f) through (k), as applicable, govern 717
actions. 11
Observation: For the most part, this means that the procedures relating to the
bringing of a federal employment suit are the same as those applied in suits involving
private employment.
Section 717 has been characterized as the exclusive judicial remedy for claims of
discrimination in federal employment 12 by employees covered by Title VII. 13
Consequently, other remedies for federal employment discrimination are preempted,
including causes of action based on constitutional claims 14 or 42 USCS 1981. 15
However, federal employees alleging discrimination have the alternative remedy of filing
a complaint with the Merit Systems Protection Board if the Board has jurisdiction over
the claim, 16 and may also bring discrimination claims under the Equal Pay Act. 17
Section 717 doesn't apply to federal employees excluded from Title VII coverage, such as
congressional employees, 18 members of the Armed Forces, 19
or aliens. 20
Alternate judicial remedies are available to those federal employees expressly
unprotected by Title VII. 21
2098 ----Suits by federal employees [SUPPLEMENT]
Statutes:

Regulations:
Case authorities:
Individual cannot bring action against EEOC which alleges that EEOC's administrative
determination that it lacked jurisdiction over her charge because she was independent
contractor instead of employee was erroneous, arbitrary and capricious, since no explicit
or implied right to sue EEOC exists under Title VII. Baba v Japan Travel (1995, SD NY)
67 BNA FEP Cas 276, dismd (1995, SD NY) 67 BNA FEP Cas 278.
Footnotes
Footnote 6. 29 CFR 1613.281.
Footnote 7. 29 CFR 1613.641(a).
Forms: Complaint in District CourtFor injunctive and declaratory
reliefDiscrimination in connection with promotion of agency employee. 10 Federal
Footnote 9. 29 CFR 1613.283, 1613.643.
Footnote 10. Wood v United States (1991, DC Mass) 760 F Supp 952, 55 BNA FEP Cas
1220, affd, remanded (CA1 Mass) 956 F2d 7, 58 BNA FEP Cas 564, 58 CCH EPD
41289, withdrawn by publisher.
Davis v Passman (1979) 442 US 228, 60 L Ed 2d 846, 99 S Ct 2264, 19 BNA FEP Cas
1390, 19 CCH EPD 9241.
Footnote 14. Kizas v Webster (1983, App DC) 707 F2d 524, 31 BNA FEP Cas 905, 31
CCH EPD 33554.
Footnote 15. Cozad v Johnson (1975, WD Okla) 397 F Supp 1235, 15 BNA FEP Cas
1148, 10 CCH EPD 10525.
EPD 31215.
Footnote 17. Epstein v Secretary, United States Dept. of Treasury (1982, ND Ill) 552 F
Footnote 18. Davis v Passman (1979) 442 US 228, 60 L Ed 2d 846, 99 S Ct 2264, 19
Footnote 19. Johnson v Alexander (1978, CA8) 572 F2d 1219, 16 BNA FEP Cas 894, 16
Cas 965, reh den 439 US 1135, 59 L Ed 2d 98, 99 S Ct 1061.
Footnote 20. Jalil v Campbell (1978) 192 App DC 4, 590 F2d 1120, 18 BNA FEP Cas
307, 18 CCH EPD 8649.
Footnote 21. Davis v Passman (1979) 442 US 228, 60 L Ed 2d 846, 99 S Ct 2264, 19
2099 --Retroactivity of enforcement provision

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Go to Supplement
The issue of 717's retroactive application has resulted in a conflict among the courts
that turns on whether the statutory grant of a right to file a civil action provides a new
substantive right for federal employees or whether it merely provides a new remedy for
enforcing an existing right. 22
The majority view is that the statute is retroactive to
cases pending administratively at the time of its effective date. 23
2099 --Retroactivity of enforcement provision [SUPPLEMENT]
Case authorities:
School board is entitled to judgment on pleadings dismissing teacher's 42 USCS 1981
claim, where she was terminated in January 1990, before effective date of 1981
amendment, when 1981 did not apply to contract terminations, because expansion of
statute to cover employment terminations is not retroactive. Smith v New York City Bd.
of Educ. (1996, SD NY) 918 F Supp 120.
Footnotes
Footnote 22. Brown v General Services Admin. (1974, CA2) 507 F2d 1300, 8 BNA FEP
Cas 1299, 8 CCH EPD 9802, affd 425 US 820, 48 L Ed 2d 402, 96 S Ct 1961, 12
Footnote 23. Second CircuitHill v United States Postal Service (1981, SD NY) 522 F
Third CircuitSperling v United States (1975, CA3) 515 F2d 465, 10 BNA FEP Cas
654, 9 CCH EPD 10100.
Fourth CircuitClark v Goode (1974, CA4) 499 F2d 130, 8 BNA FEP Cas 365, 8 CCH
EPD 9496.
Fifth CircuitEastland v Tennessee Valley Authority (1977, CA5) 553 F2d 364, 14
Seventh CircuitAdams v Brinegar (1975, CA7) 521 F2d 129, 11 BNA FEP Cas 264, 10
CCH EPD 10351.
Ninth CircuitMahroom v Hook (1977, CA9) 563 F2d 1369, 16 BNA FEP Cas 130, 15
Cas 699, 16 CCH EPD 8291.
Tenth CircuitWeahkee v Powell (1976, CA10) 532 F2d 727, 12 BNA FEP Cas 849, 11
CCH EPD 10775.
DC CircuitWomack v Lynn (1974) 164 App DC 198, 504 F2d 267, 8 BNA FEP Cas
844, 8 CCH EPD 9709.
(2). EEOC Suits [2100-2105]
2100 Generally
View Entire Section
Go to Supplement
A suit brought by the EEOC may either develop out of the processing of an individual
charge or be the result of "targeting" an employer believed to have engaged in a "pattern
or practice" of discrimination. It should be noted that Title VII imposes no obligation on
the EEOC to sue. Rather, it confers on the commission broad discretion to determine
which suits it will bring and which it will leave to be brought by private parties. 24
Observation: The EEOC considers conciliation agreements to be binding contracts,

and it may bring a suit to enforce a conciliation agreement if it is unsatisfied with a
respondent's compliance with the agreement. Such a suit is not a "Title VII suit" in the
strictest sense; rather, it is a suit for breach of contract. 25
Case authorities:
Employee who withdrew two of charges that he had filed with EEOC could not maintain
court action with respect to those charges, since he never received right to sue letter with
respect to them, and right to sue letter is prerequisite to maintaining Title VII court
action. Fields v Phillips Sch. of Business & Technology (1994, WD Tex) 870 F Supp
149, 66 BNA FEP Cas 912.
Footnotes
Footnote 24. United States v Allegheny-Ludlum Industries, Inc. (1975, CA5) 517 F2d
Footnote 25. The procedures followed by the EEOC in these situations are discussed in
2039 et seq.
2101 Suits against the government

View Entire Section
The EEOC does not have the authority to sue a government, governmental agency, or
political subdivision. After a failure to conciliate charges against those entities, the
EEOC must refer the matter to the U.S. Attorney General for litigation. 26
Footnotes
Annotation: Authority of Equal Employment Opportunity Commission under
706(f)(1) of Title VII of Civil Rights Act of 1964, as amended (42 USCS
2000e-5(f)(1)), to bring civil action against nongovernmental respondent after private
suit involving same charge has been filed, 39 ALR Fed 282.
2102 How the decision to sue is made

View Entire Section

Once a district director determines that conciliation efforts have failed, he will notify the
respondent of that determination and refer the entire case file to the regional attorney. 27
Aggrieved persons and other parties of interest will be advised when the charge has been
referred by the district director to the regional attorney for litigation review. 28
Footnotes
Footnote 27. EEOC Compliance Manual 66.2 and 66.5.
Footnote 28. EEOC Compliance Manual 66.5(c); Exhibit 66-B.
2103 Suits for preliminary relief

View Entire Section
Whenever a charge is filed with the EEOC and the Commission concludes on the basis of
a preliminary investigation that prompt judicial action is necessary to carry out the
purposes of Title VII, the Commission may bring an action for appropriate temporary or
preliminary relief pending final disposition of the charge. 29 Thus, the EEOC can file
an action immediately to preserve the status quo and to prevent actions by respondents
that would deprive anyone of Title VII rights or interfere with the Commission's
responsibilities under Title VII, 30 including seeking preliminary relief to prevent
retaliation and the destruction of records believed to be relevant to a Title VII
investigation. 31
The Commission has delegated to the Program Director, Office of Program Operations,
the Director of Systemic Programs, the regional program directors, and the district
directors the authority to make the determination whether prompt judicial action is
necessary. Suits against private parties are brought by the general counsel, while the U.S.
Attorney General prosecutes cases involving governmental units. 32
The EEOC asserts that it has authority under Title VII to immediately seek preliminary
relief, upon receipt of a charge, regardless of whether the alleged discrimination occurred
within a "deferral" jurisdiction. 33
Also, although neither the ADEA or the EPA contain a provision allowing an agency suit
for preliminary relief, as does Title VII, the EEOC asserts that it may seek preliminary
relief under those statutes 34 pursuant to the Federal Rule of Civil Procedure's general
rule providing for temporary injunctions and restraining orders in federal civil cases, 35
as long as it attempts conciliation before seeking preliminary ADEA relief. 36
If the EEOC disapproves of preliminary relief, this does not normally conclude the
Commission's processing of a charge, and the Commission's normal procedures will
continue. 37
The court must assign the case for hearing at the earliest practicable date and cause it to
be expedited. 38
In one suit for a preliminary injunction brought by the EEOC, the defendants
unsuccessfully claimed that the EEOC's attempt to seek preliminary relief was in conflict
with Article III of the Constitution,because it was a "holding action" designed to maintain
the status quo while the agency went about determining whether it had a valid claim.
The court ruled that since a district office of the EEOC had conducted a preliminary
investigation and had concluded that prompt judicial action was necessary to effectuate
the purposes of Title VII, and since the issues presented in the EEOC's petition for
preliminary relief were neither hypothetical nor moot, the EEOC's allegations called for
immediate injunctive relief. 39
Footnotes
Footnote 30. 29 CFR 1601.27.
Footnote 32. 29 CFR 1601.23(a).
Footnote 33. EEOC Compliance Manual 13.4(d)(2).
Footnote 35. FRCP 65.
Footnote 36. EEOC Compliance Manual 13.7(b)).
Footnote 39. Equal Employment Opportunity Com. v Rinella & Rinella (1975, ND Ill)
401 F Supp 175.
2104 Pattern-or-practice suits

View Entire Section
Whenever the Commission has reasonable cause to believe that any person or group is
engaged in a pattern or practice of resistance to the full enjoyment of rights secured by
Title VII, and that the pattern or practice is of such a nature and intended to deny the full
exercise of those rights, the EEOC has the power to bring a civil action in an appropriate
District Court. 40
Pattern-or-practice cases are often called "707 cases" because the authority for such suits
is derived from 707 of Title VII. The words "pattern-or-practice" reflect only their
usual meaning, and are not intended as a term of art. 41
An intent to deny statutory
rights under 707 need not be intent in the constitutional sense, but only intentional
conduct in the "relatively innocuous sense of advertence." 42
Footnotes
Footnote 42. U.S. v Yonkers (1984, SD NY) 609 F Supp 1281, 36 CCH EPD 34928.
2105 Suits on individual charges

View Entire Section
Title VII grants the EEOC the authority to seek judicial relief on individual charges if,
within 30 days after a charge is filed or within 30 days after the expiration of any deferral
period, the Commission has been unable to secure from the respondent a conciliation
agreement acceptable to the Commission. The Commission will bring a civil action
against any private respondent named in the original charge. 43
Once the EEOC has
sued on behalf of an individual, it need not abandon that suit and initiate a
pattern-or-practice suit merely because the individual has settled the initial charge. The
Commission may pursue the claim without producing an injured party when seeking to
challenge an allegedly discriminatory policy that may affect unidentifiable members of a
known class. The agency's right to continue the suit endures until the alleged
discrimination is eradicated. 44
However, the EEOC is limited to intervention in ongoing private civil actions and cannot
bring a suit arising from the same event on which the private suit is based if no additional
pattern and practice violations are identified. 45
Even after the Commission has concluded that no reasonable cause exists to believe that
a charge is true, it may nevertheless bring suit where it has discovered other unlawful
employment practices during its investigation of the initial charge. 46
Footnotes
Footnote 43. 42 USCS 2000e-5(f)(1); 29 CFR 1601.27.
Footnote 44. EEOC v United Parcel Service (1988, CA10 Colo) 860 F2d 372, 48 BNA
Footnote 45. EEOC v Pic Pac Supermarkets, Inc. (1988, SD W Va) 689 F Supp 607, 47
Footnote 46. EEOC v Brookhaven Bank & Trust Co. (1980, CA5) 614 F2d 1022, 22
(3). Private Suits [2106-2109]
2106 Suits for preliminary relief

View Entire Section
Prior to the 1972 amendments to Title VII that gave the EEOC power to seek preliminary
relief in appropriate cases, the federal courts were willing to allow an aggrieved
individual to seek preliminary relief even if the EEOC's administrative procedures had
not been exhausted. 47
It has been argued that because the 1972 amendments expressly give the EEOC power to
seek preliminary relief in appropriate cases, the individual right to seek such relief was
extinguished by implication. The courts are split on this issue. A number of courts have
held that preliminary relief is not available to an individual plaintiff prior to the issuance
of a right-to-sue letter, at least in the absence of some other valid basis of jurisdiction. 48
On the other hand, an approximately equal number of courts have held that an employee
may bring a suit to preserve the status quo pending Commission action on the employee's
charge where irreparable injury is shown and the likelihood of ultimate success on the
merits has been established. 49
Footnotes
Footnote 47. Culpepper v Reynolds Metals Co. (1970, CA5) 421 F2d 888, later app
(CA5) 442 F2d 1078; Bowe v Colgate-Palmolive Co. (1967, SD Ind) 272 F Supp 332,
affd in part and revd in part on other grounds (CA7) 416 F2d 711, later app (CA7) 489
F2d 896.
Footnote 48. McGee v Purolator Courier Corp. (1977, ND Ala) 430 F Supp 1285
(declining to follow Drew v Liberty Mut. Ins. Co. (1973, CA5) 480 F2d 69, reh den 480
F2d 924, cert den 417 US 935, 41 L Ed 2d 239, 94 S Ct 2650, which held to the
contrary); Troy v Shell Oil Co. (1974, ED Mich) 378 F Supp 1042, app dismd (CA6) 519
F2d 403; Nottelson v A. O. Smith Corp. (1975, DC Wis) 397 F Supp 928; Hunter v Ward
(1979, ED Ark) 476 F Supp 913; Collins v Southwestern Bell Tel. Co. (1974, ED Okla)
376 F Supp 979.
Footnote 49. Hochstadt v Worcester Foundation for Experimental Biology, Inc. (1976,
DC Mass) 425 F Supp 318, affd on other grounds (CA1) 545 F2d 222; Drew v Liberty
Mut. Ins. Co. (1973, CA5) 480 F2d 69, reh den (CA5) 480 F2d 924, cert den 417 US
935, 41 L Ed 2d 239, 94 S Ct 2650; Hyland v Kenner Products Co. (1974, SD Ohio) 10
BNA FEP Cas 367; Mead v United States Fidelity & Guaranty Co. (1977, DC Minn) 442
F Supp 102; Berg v Richmond Unified School Dist. (1975, CA9) 528 F2d 1208, vacated
on other grounds 434 US 158, 54 L Ed 2d 375, 98 S Ct 623.
2107 Suits following EEOC dismissal of charge

View Entire Section
If the EEOC's investigation leads it to the conclusion that there is no reasonable cause to
believe that Title VII has been violated, 50 the EEOC will dismiss the charge. Such a
dismissal has no effect on the aggrieved individual's right to bring suit in his own behalf.
51 Along with the dismissal notification, the EEOC will send the aggrieved party a
right-to-sue notice, 52 and the individual may proceed to prosecute the case in federal
District Court.
Footnotes
2108 Suits following request for right-to-sue notice

View Entire Section
If an aggrieved party is dissatisfied with the pace of EEOC proceedings, he can request a
right-to-sue notice, provided 180 days have passed since the charge was filed with the
EEOC. 53 Upon receipt of this notice, the individual can go to court even if the
EEOC's administrative process has not been concluded.
Footnotes
Forms: Complaint in federal courtRequest for reliefEmployee's action under Section
706 of Civil Rights Act of 1964Plaintiff discriminated against and discharged. 16 Am
Jur Pl & Pr Forms (Rev), Labor and Labor Relations, Form 267.
2109 Suits following failure of conciliation

View Entire Section
If the EEOC's conciliation efforts fail, the EEOC must decide whether to bring suit on its
own behalf. 54
If the EEOC decides to exercise its right to sue, the aggrieved party is prohibited from
bringing a duplicative suit but does have a right to intervene in the EEOC's suit. 55
If the Commission decides not to sue, it will send the aggrieved party a right-to-sue
notification, 56 and the party can go ahead with a lawsuit. 57
Footnotes
Footnote 54. How the EEOC arrives at a decision of whether to sue is discussed in
600 et seq.
Footnote 55. McClain v Wagner Electric Corp. (1977, CA8) 550 F2d 1115, 14 BNA FEP
Cas 817, 13 CCH EPD 11563, 23 FR Serv 2d 170, later proceeding (ED Mo) 24 FR
Serv 2d 147.
c. Cases Under Other Laws [2110-2129]
2110 Jurisdictional grounds for suits under the early civil rights acts
View Entire Section

Go to Supplement
The early civil rights acts (42 USCS 1981, 1983, and 1985) are remedial statutes that
do not themselves confer jurisdiction on a court. The grounds for federal court
jurisdiction in actions under those statutes are found either in the provisions of the
general federal jurisdictional statute for civil rights and elective franchise suits 58 or the
federal jurisdictional statute for federal question suits. 59
The basis for federal court jurisdiction in 1981 suits is in 28 USCS in
1343(a)(4), which grants original jurisdiction to the District Courts for any civil action
instituted to recover damages or to secure equitable or other relief under any act of
Congress providing for the protection of civil rights, without regard to the amount in
controversy. 60 Subject matter jurisdiction over a cause of action under 1981 is not
barred by the Railway Labor Act. 61
Federal courts have jurisdiction over 1983 suits either from 28 USCS
1343(a)(3)which grants original jurisdiction to the District Courts for any civil action
instituted to redress the deprivation, under color of any state law, regulation, or custom,
of any right, privilege, or immunity secured by the Constitution or any act of Congress
providing for equal rights of citizens or persons within the jurisdiction of the United
States 62 or from 28 USCS 1331 63 which grants original jurisdiction to the
District Courts for any civil action arising under the Constitution, laws, or treaties of the
United States. For a federal court to have jurisdiction under 28 USCS 1331 or
1343(a)(3), the plaintiff must assert a substantial federal claim, as federal courts are
powerless to entertain claims that are so attenuated and insubstantial as to be absolutely
devoid of merit, wholly or plainly insubstantial, obviously frivolous, or no longer open to
discussion. 64 Moreover, 28 USCS 1343(a)(3) is not a source of jurisdiction for
alleged violations by federal officials but is limited to alleged violations by officials
acting under state law. 65
Federal courts have jurisdiction over 1985 suits by virtue of 28 USCS 1343(a)(1)
and 1343(a)(2), which respectively provide federal jurisdiction for suits to recover
damages for injuries caused by any act in furtherance of a 1985 conspiracy, and for
suits to recover damages from any person who is able to prevent or aid in preventing any
of the injuries enumerated in 1985 and knowingly fails to do so. 66
Federal court jurisdiction over 1981, 67 1983, 68 and 1985 claims 69 is not
exclusive but rather is shared with state courts.
2110 ----Jurisdictional grounds for suits under the early civil rights acts
[SUPPLEMENT]
Case authorities:
Title VII plaintiff can assert claims under 42 USCS 1983 for violations of rights not
exclusively protected by Title VII. Saulpaugh v Monroe Community Hosp. (1993, CA2
NY) 4 F3d 134, 62 BNA FEP Cas 1315, 62 CCH EPD 42540.
Footnotes
Footnote 60. Ficklin v Sabatini (1974, ED Pa) 378 F Supp 19, 8 BNA FEP Cas 447, 7
CCH EPD 9307; Quarles v Texas (1970, SD Tex) 312 F Supp 835.
Footnote 61. McAlester v United Air Lines, Inc. (1988, CA10) 851 F2d 1249, 47 BNA
Footnote 62. Second Circuit-Winsey v Pace College (1975, SD NY) 394 F Supp 1324,
Third Circuit-Pinto v Clark (1976, ED Pa) 407 F Supp 1209.
Fourth Circuit-Moreno v University of Maryland (1976, DC Md) 420 F Supp 541, affd
without op (1977, CA4) 556 F2d 573, vacated on other grounds (1979) 441 US 458, 60
L Ed 2d 354, 99 S Ct 2044.
Eighth Circuit-Payne v Ballard (1984, ED Ark) 595 F Supp 878, affd (CA8) 761 F2d
491.
Footnote 63. Murray v Murphy (1977, ED Pa) 441 F Supp 120; Payne v Ballard (1984,
ED Ark) 595 F Supp 878, affd (CA8) 761 F2d 491.
Footnote 64. Davis v Pak (1988, CA4) 856 F2d 648.
Footnote 65. Giles v EEOC (1981, ED Mo) 520 F Supp 1198, 27 BNA FEP Cas 1757.
Footnote 66. Cristina v Department of State (1976) 417 F Supp 1012; Giles v EEOC
(1981, ED Mo) 520 F Supp 1198, 37 BNA FEP Cas 1757.
F2d 459, 50 BNA FEP Cas 558, 4 BNA IER Cas 897, 51 CCH EPD 39623.
Footnote 68. Kutzik v Young (1984, CA4) 730 F2d 149.
Footnote 69. Bennun v Board of Governors of Rutgers, State University (1976, DC NJ)
2111 Bringing claims under early Civil Rights Acts for practices prohibited by
other federal job discrimination laws
View Entire Section

Employment discrimination claims brought under the early Civil Rights Acts, especially
42 USCS 1983 and 1985, may be barred if they involve practices prohibited by other
federal job discrimination laws such as Title VII, the ADEA, Title VI, and the
Rehabilitation Act. The Supreme Court, in a nonemployment suit, has held that 1983
claims are precluded where Congress has provided a comprehensive and exclusive
remedy in other statutes. 70
Thus, a 1983 suit cannot be based on the same factual
grounds that constitute a violation of federal job discrimination laws with comprehensive
enforcement procedures, including Title VII, 71 the ADEA, 72 and Title VI. 73
Section 1983 claims are permitted along with Title VII claims only when the former
claim is based on a violation of constitutional or statutory law independent of Title VII,
74 such as violations of rights guaranteed by the First and Fourteenth Amendments, 75
or the equal protection clause. 76
There is disagreement as to whether a 1983 claim can be based on violations of the
Rehabilitation Act. It has been held that a 1983 claim cannot be based on a violation of
either Section 503 77 or Section 504 78 of the Act, because they both provide
comprehensive remedial schemes to remedy handicap discrimination. However, Section
504's remedies have been found to be not sufficiently comprehensive to imply a
congressional intent to preclude 1983 claims based on 504 violations. 79
The Supreme Court also has held that 1985(3) cannot be used to redress violations of
rights created by Title VII, because plaintiffs must not be allowed to circumvent Title
VII's detailed and specific procedural provisions and bypass its administrative
enforcement scheme by asserting Title VII rights under 1985(3). 80
Using Novotny as guidance, it has been held that 1985(3) actions cannot be used to
remedy violations of the Federal Conspiracy to Obstruct Justice Act (42 USCS
1985(2)), 81 the Equal Pay Act, 82 or the Age Discrimination in Employment Act
(ADEA). 83 However, Novotny was distinguished as inapplicable when a plaintiff had
no ADEA cause of action because he was not in the ADEA protected age group, and thus
was not attempting to avoid the statute's administrative procedures by going directly to
court with a 1985(3) claim, 84 and when the plaintiff brought an independent
constitutional claim in addition to one under Title VII. 85 Also, 1985(3) was
specifically created to protect rights created by other Reconstruction Era laws such as 42
USCS 1981. 86
Footnotes
Footnote 70. Middlesex County Sewerage Authority v National Sea Clammers Asso.
(1981) 453 US 1, 69 L Ed 2d 435, 101 S Ct 2615, 11 ELR 20684.
seq.) as precluding action under 42 USCS sec. 1983 for employment discrimination by
Footnote 71. Rivera v Wichita Falls (1982, CA5) 665 F2d 531, 27 BNA FEP Cas 1352,
28 CCH EPD 32413; Tafoya v Adams (1987, CA10) 816 F2d 555, 43 BNA FEP Cas
Footnote 72. Zombro v Baltimore City Police Dept. (1989, CA4) 868 F2d 1364, 49 BNA
FEP Cas 297, 49 CCH EPD 38785, cert den 107 L Ed 2d 106, 110 S Ct 147, 50 BNA
FEP Cas 1496, 51 CCH EPD 39414.
Footnote 73. Alexander v Chicago Park District (1985, CA7) 773 F2d 850, 38 BNA FEP
Cas 1685.
Footnote 74. Johnston v Harris County Flood Control Dist. (1989, CA5) 869 F2d 1565,
Footnote 75. Second Circuit-Carrero v New York City Housing Authority (1989, CA2)
Fourth Circuit-Keller v Prince George's County (1987, CA4) 827 F2d 952, 44 BNA
FEP Cas 1065, 44 CCH EPD 37329.
Sixth Circuit-Day v Wayne County Board of Auditors (1984, CA6) 749 F2d 1199, 36
Seventh Circuit-Ratliff v City of Milwaukee (1986, CA7) 795 F2d 612, 41 BNA FEP
Cas 296, 40 CCH EPD 36304.
Tenth Circuit-Starrett v Wadley (1989, CA10) 876 F2d 800, 50 CCH EPD 39023.
Footnote 76. Notari v Denver Water Dept. (1992, CA10 Colo) 971 F2d 585, 59 BNA
Footnote 77. Meyerson v Arizona (1983, CA9) 709 F2d 1235, 31 BNA FEP Cas 1183, 31
CCH EPD 33581, vacated on other grounds 465 US 1095, 80 L Ed 2d 118, 104 S Ct
Footnote 78. Tyus v Ohio Dept. of Youth Services (1985, SD Ohio) 606 F Supp 239, 38
Footnote 79. Second CircuitRothschild v Grottenthaler (1989, SD NY) 716 F Supp
796, later proceeding on other grounds (SD NY) 725 F Supp 776, affd in part and vacated
in part (CA2 NY) 907 F2d 286).
Sixth CircuitPendleton v Jefferson Local School Dist. Bd. of Educ. (1992, CA6) 58
BNA FEP Cas 528 (unpublished)).
Seventh CircuitByrne v Bd. of Ed. (1989, ED Wis) 53 BNA FEP Cas 551.
Ninth CircuitSmith v Barton (1990, CA9) 914 F2d 1330, 1 AD Cas 1689, 53 BNA FEP
Cas 1552, 54 CCH EPD 40264, cert den (US) 115 L Ed 2d 995, 111 S Ct 2825, 2 AD
Eleventh CircuitShuttleworth v Broward County (1986, SD Fla) 639 F Supp 654, 41

BNA FEP Cas 406, 40 CCH EPD 36308, motion gr (SD Fla) 649 F Supp 35, 42 BNA
FEP Cas 1745, 41 CCH EPD 36690; Christopher N. v McDaniel (1983, ND Ga) 569 F
Supp 291.
Footnote 80. Great American Federal Sav. & Loan Asso. v Novotny (1979) 442 US 366,
Footnote 81. Cohen v Community College of Philadelphia (1980, ED Pa) 484 F Supp
411, 21 BNA FEP Cas 1488.
Footnote 82. Lyons v Temple University (1981, ED Pa) 507 F Supp 471, 27 BNA FEP
Cas 1601).
Footnote 83. Jones v Baskin, Flaherty, Elliott & Mannino, P.C. (1989, WD Pa) 52 BNA
FEP Cas 554, affd without op (CA3) 52 BNA FEP Cas 1772.
Footnote 84. Pavlo v Stiefel Laboratories, Inc. (1979, SD NY) 22 BNA FEP Cas 489, 23
CCH EPD 30926.
Footnote 85. Garza v Omaha (1987, CA8) 814 F2d 553, 43 BNA FEP Cas 572, 1 BNA
IER Cas 1687.
Footnote 86. Witten v A.H. Smith & Co. (1983, DC Md) 567 F Supp 1063, 32 BNA FEP
Cas 614, 33 CCH EPD 34254.
2112 The ADEA

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Civil actions by the EEOC 87 and any aggrieved person 88 may be brought to enforce
the provisions of the Age Discrimination in Employment Act (ADEA).
The basis of federal court jurisdiction is 28 USCS 1337, which confers jurisdiction
over actions arising under acts of Congress regulating commerce. 89 Private ADEA
claims, under federal common law, survive the claimant's death and are subject to revival
by his estate, subject to the time limitation set forth in FRCP 25. 90
The ADEA does not preclude the EEOC from filing its own suit after a private plaintiff
files suit. Furthermore, the statute does not require the agency to intervene under those
circumstances, but allows it to pursue the action independently, unfettered by any private
litigation. 91 Moreover, the filing of an EEOC suit under the ADEA does not terminate
a private suit that is pending before the commencement of the EEOC action. 92
However, if the EEOC brings suit in federal court on behalf of an individual or group of
individuals, no person named in the suit may subsequently bring a private action. 93
This bar on private suits after EEOC has filed suit under the ADEA also extends to third
parties challenging a consent decree. 94

An EEOC suit under the ADEA for injunctive relief is not time-barred even if an
individual plaintiff bringing the suit may have been time-barred, when the agency was
seeking to prevent further enforcement of a discriminatory state law. 95
Nothing in the ADEA affects the jurisdiction of any state agency performing functions
regarding discriminatory employment practices on the basis of age. However, when an
action is commenced under the ADEA, it supersedes any state action. 96 "Supersedes"
does not mean pre-empt, so that the filing of a federal ADEA action requires only a stay
of the state action and not a dismissal. 97
The required stay of ADEA state proceedings cannot be waived, since the purpose of
conserving judicial resources by avoiding proceedings in both federal and state forums to
resolve the same issues would not be served by such a waiver. 98 However, the Second
Circuit has held that commencement of an ADEA action in federal court stays only state
administrative proceedings and does not apply to claims brought in state court. 99
2112 ----The ADEA [SUPPLEMENT]
Practice Aids: Age discrimination and the ADA: how the ADA may be used to arm
older Americans against age discrimination by employers who would otherwise escape
liability under the ADEA, 66 Temp LR 173 (1993).
Footnotes
Forms: ComplaintADEABy aggrieved applicant for employment, seeking
injunction compelling employment, judgment for lost wages, and other relief Federal
Procedural Forms, L Ed, 45:154.
Footnote 89. Woodford v Kinney Shoe Corp. (1973, ND Ga) 369 F Supp 911, 7 BNA
Footnote 90. Asklar v Honeywell, Inc. (1982, DC Conn) 95 FRD 419, 29 BNA FEP Cas
1596, 30 CCH EPD 33300.
Footnote 91. EEOC v Wackenhut Corp. (1991, CA5 La) 939 F2d 241, 56 BNA FEP Cas
1070, 57 CCH EPD 40954.
Footnote 92. Dreith v National Football League (1991, DC Colo) 777 F Supp 832, 57

Footnote 94. EEOC v Pan American World Airways, Inc. (1990, CA9) 897 F2d 1499, 52
BNA FEP Cas 990, 52 CCH EPD 39698, cert den Keith v EEOC (US) 112 L Ed 2d 31,
For a discussion of how courts have interpreted their jurisdiction to entertain ADEA
private suits after the EEOC has filed suit, see 2173 et seq.
Footnote 95. EEOC v Massachusetts (1990, DC Mass) 12 EBC 2706, 54 BNA FEP Cas
436, 55 CCH EPD 40496.
Footnote 97. Dunlop v Pan American World Airways, Inc. (1982, CA2) 672 F2d 1044,
28 BNA FEP Cas 290, 28 CCH EPD 32484, 33 FR Serv 2d 874; Simpson v Alaska
State Com. for Human Rights (1976, DC Alaska) 423 F Supp 552, 13 BNA FEP Cas
EPD 30033.
Footnote 98. Corrente v St. Joseph's Hospital and Health Center (1990, ND NY) 730 F
Supp 493, 53 CCH EPD 39831.
Footnote 99. Promisel v First American Artificial Flowers, Inc. (1991, CA2 NY) 943 F2d
251, 57 CCH EPD 41050, cert den (US) 117 L Ed 2d 110, 112 S Ct 939.
2113 ADEA federal employment cases

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A federal employee or applicant for employment, 1 as well as a class agent or individual
class member who filed a claim for relief, 2 may seek judicial relief for alleged
employment discrimination under the ADEA. 3 The plaintiff has the option of seeking
judicial relief immediately, or pursuing administrative remedies 4 and then bringing
suit. 5
The internal administrative procedure is an alternative and independent remedy
which a complainant may take and not a statutory prerequisite to filing a suit under the
Act, 6 and a complainant does not lose or waive his right to a trial de novo by availing
himself of administrative remedies. 7
An individual who decides not to pursue administrative remedies must give the EEOC at
least 30 days' notice of his intent to file suit. 8
The ADEA is the exclusive remedy for age discrimination in federal employment, 9 and
consequently preempts judicial remedies based directly on the Constitution for age
discrimination claims. 10
2113 ----ADEA federal employment cases [SUPPLEMENT]

Statutes:
29 USCS 633a(a), amended in 1995, now also applies to those with positions in the
Government Printing Office and the General Accounting Office.
Regulations:
Footnotes
Footnote 1. 29 CFR 1613.281.
Footnote 2. 29 CFR 1613.641(a).
Footnote 3. 29 USCS 633a(c).
Footnote 5. Third CircuitPurtill v Harris (1981, CA3) 658 F2d 134, 26 BNA FEP Cas
Eighth CircuitHall v United States (1977, DC Minn) 436 F Supp 505, 18 BNA FEP
Cas 335, 15 CCH EPD 8084.
DC CircuitHinton v Solomon (1979, DC Dist Col) 475 F Supp 105, 20 BNA FEP Cas
1211.
Footnote 6. Hinton v Solomon (1979, DC Dist Col) 475 F Supp 105, 20 BNA FEP Cas
1211.
Footnote 7. Hall v United States (1977, DC Minn) 436 F Supp 505, 18 BNA FEP Cas
335, 15 CCH EPD 8084.
Footnote 9. Paterson v Weinberger (1981, CA5) 644 F2d 521, 26 BNA FEP Cas 943, 26
CCH EPD 31823; Christie v Marston (1978, ND Ill) 451 F Supp 1142, 17 BNA FEP
Cas 792, 17 CCH EPD 8476.
Footnote 10. Purtill v Harris (1981, CA3) 658 F2d 134, 26 BNA FEP Cas 940, 26 CCH
EPD 32061, cert den 462 US 1131, 77 L Ed 2d 1365, 103 S Ct 3110, 31 BNA FEP
Cas 1850, 32 CCH EPD 33652.
2114 The ADA

View Entire Section
On its effective date, which depends on how many employees an employer has, 11 the
Americans with Disabilities Act (ADA) incorporates the Title VII provisions 12
permitting private suits for disability discrimination in employment, as well as suits by
the EEOC and the Attorney General. 13
Footnotes
Footnote 12. 42 USCS 2000e-5, 42USCS 2000e-6.

View Entire Section
Any employee whose rights have been violated under the Equal Pay Act may bring a
private action against his employer in a federal or state court for amounts withheld in
violation of the Act. 14 The EEOC may bring the same type of action on behalf of an
employee allegedly affected by a violation, and it does not have to wait until the affected
employee makes a request before initiating litigation to seek preliminary relief; the
employee loses the right to sue privately if the Commission brings such an action. 15
Footnotes
Footnote 15. 29 USCS 216(b), 29 CFR 1620.30(b), 1620.33 51 Fed Reg. 29816,
8/20/86.
Annotation: Commencement of action by Equal Employment Opportunity
Commission to enforce provisions of Equal Pay Act (29 USCS sec. 206(d)) on behalf
of individual as affecting that individual's right to sue employer under Civil Rights Act
of 1964 (42 USCS 2000e et seq.), 64 ALR Fed 961.
2116 Equal Pay Act federal employment cases

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A Federal Government employee 16 or applicant for employment, 17 as well as a class
agent or individual class member who filed a claim for relief, 18 may bring an action
under the Equal Pay Act to recover unpaid minimum wages or overtime compensation,
and an additional equal amount as liquidated damages, in any federal or state court of
competent jurisdiction. 19
Observation: Procedures applicable to judicial proceedings brought by federal

employees under the Act are the same as those in actions brought by private
employees.
2116 ----Equal Pay Act federal employment cases [SUPPLEMENT]
Regulations:
Footnotes
Cas 1614, 28 CCH EPD 32668, 33 FR Serv 2d 1553; Edmondson v Simon (1980, ND
Ill) 497 F Supp 411, 24 BNA FEP Cas 1039, 25 CCH EPD 31646.
Footnote 17. 29 CFR 1613.281.
Footnote 18. 29 CFR 1613.641(a).
2117 Executive Order 11246; government suits

View Entire Section

The Director of the OFCCP may refer a matter to the Department of Justice for judicial
enforcement of Executive Order 11246 and its implementing regulations if the Director
has reason to believe that there is a substantial or material violation, or threat of such a
violation, of the contractual provisions of the Order or its implementing rules and
regulations. 20 Violations triggering an enforcement suit may be based on:
the results of a complaint investigation;
analysis of an affirmative action program;
the results of an on-site review of the contractor's compliance with the Executive Order
and its implementing regulations;
a contractor's refusal to submit an affirmative action program;
a contractor's refusal to allow an on-site compliance review;
a contractor's refusal to supply records or other information as required by the pertinent
regulations or construction industry requirements;
any substantial or material violation or threat of violation of the contractual provisions
of the Executive Order, or its implementing rules or regulations. 21
There are no procedural prerequisites for a referral to the Department of Justice by the
OFCCP Director. Referrals may be made at any stage in the procedures outlined under
the OFCCP's regulations governing equal employment opportunity, 22 and may be
accomplished without proceeding through conciliation procedures. 23
Prior to instituting judicial proceedings, the Attorney General, who is authorized to
initiate 24 and conduct 25 investigations, may make reasonable efforts to secure
compliance by providing the contractor and any other respondent with reasonable notice
of his findings, intent to file suit, and actions believed necessary to obtain compliance
without contested litigation, and by offering the contractor or respondent a reasonable
opportunity for conference and conciliation in an effort to obtain compliance without
litigation. 26
The Attorney General, or his authorized designee, 27 may bring a civil action, either
upon referral by the OFCCP Director 28 or without referral. 29 On referral, 30 or
following unsuccessful conciliation efforts without a referral, 31 the Attorney General
may bring a civil action in the appropriate United States District Court for a temporary
restraining order, preliminary or permanent injunction, or an order for additional
equitable relief, including backpay. Relief may also be sought against noncontractors,
including labor unions, who seek to thwart implementation of the order and regulations.
32
Footnotes
Footnote 20. 41 CFR 60-1.26(a)(2).

Footnote 21. 41 CFR 60-1.26(a)(1).
Footnote 22. 41 CFR Chapter 60.
Footnote 23. 41 CFR 60-1.26(a)(2).
Footnote 24. 41 CFR 60-1.26(f).
Footnote 25. 41 CFR 60-1.26(e)(2).
Footnote 26. 41 CFR 60-1.26(e)(3), (f).
Footnote 27. 41 CFR 60-1.26(e)(4).
Footnote 28. 41 CFR 60-1.26(e)(1).
Footnote 29. 41 CFR 60-1.26(f).
Footnote 30. 41 CFR 60-1.26(e)(1).
Footnote 31. 41 CFR 60-1.26(f).
Footnote 32. 41 CFR 60-1.26(a)(2).
2118 Executive Order 11246; private suits

View Entire Section
The courts have generally held that Executive Order 11246 does not permit a private
employment discrimination action against a government contractor, 33
whether
that action be denominated as an implied private right of action, or as a third-party
beneficiary cause of action. 34 However, since the Eleventh Circuit allows third-party
beneficiaries expressly named in a consent decree to bring suit under Executive Order
11246, a District Court in that Circuit has permitted female and black employees who
came within the protection of the nondiscrimination provisions of the Order to sue
directly under the order as intended third-party beneficiaries. 35 In addition, courts have
permitted private actions against the government officials responsible for enforcing the
Order in actions seeking to have particular government contracts canceled, to have
certain affirmative action plans disapproved, and to prevent further contracts with the
contractor until discriminatory practices had been ended. 36 There is some support for
the view that a private action against government officials responsible for enforcing the
Executive Order amounts to a suit against the United States that is barred under the
doctrine of sovereign immunity, 37 but there is authority to the contrary. 38
Footnotes
Footnote 33. Second CircuitWeise v Syracuse University (1975 CA2) 522 F2d 397.
Third CircuitFarmer v Philadelphia Electric Co. (1964, CA3) 329 F2d 3.
Fifth CircuitFarkas v Texas Instrument, Inc. (1967, CA5) 375 F2d 629, cert den 389
US 977, 19 L Ed 2d 471, 88 S Ct 480.
Fifth CircuitFarkas v Texas Instrument, Inc. (1967, CA5 Tex) 375 F2d 629, 1 BNA
FEP Cas 890, 71 BNA LRRM 3154, 1 CCH EPD 9777, 55 CCH LC 9049, cert den
389 US 977, 19 L Ed 2d 471, 88 S Ct 480, 1 BNA FEP Cas 894, 71 BNA LRRM 3157,
1 CCH EPD 9830, 56 CCH LC 9095.
Seventh CircuitCohen v Illinois Institute of Technology (1975, CA7) 524 F2d 818, cert
den 425 US 943, 48 L Ed 2d 187, 96 S Ct 1683.
Ninth CircuitUtley v Varian Associates, Inc. (1987, CA9) 811 F2d 1279, 43 BNA FEP
Cas 191.
Eleventh CircuitRobinson v Jacksonville Shipyards, Inc. (1991, MD Fla) 136 BNA
LRRM 2920, 55 CCH EPD 40535, reported in full (MD Fla) 760 F Supp 1486, 57
BNA FEP Cas 971, 58 CCH EPD 41284, later proceeding (MD Fla) 1991 US Dist
LEXIS 4678.
Annotation: Right to maintain private employment discrimination action under
Executive Order 11246, as amended, prohibiting employment discrimination by
government contractors and subcontractors, 31 ALR Fed 108.
Footnote 34. Droughn v FMC Corp. (1977, ED Pa) 74 FRD 639.
Footnote 35. Amalgamated Clothing & Textile Workers Union v S. Lichtenberg & Co.
(1990, SD Ga) 54 BNA FEP Cas 635, 56 CCH EPD 40696).
Footnote 36. Percy v Brennan (1974, SD NY) 384 F Supp 800; Legal Aid Soc. v Brennan
(1974, ND Cal) 381 F Supp 125; Hadnott v Laird (1972) 149 App DC 358, 463 F2d 304.
Footnote 37. Hadnott v Laird (1970, DC Dist Col) 317 F Supp 379, affd on other grounds
149 App DC 358, 463 F2d 304.
Footnote 38. Legal Aid Soc. v Brennan (1974, ND Cal) 381 F Supp 125.
2119 Executive Order 11141; private suits

View Entire Section
It has been held that Executive Order 11141 neither confers jurisdiction on a federal court
to hear claims against a government contractor arising under the Order nor creates an
enforceable right of action. 39
Footnotes
FEP Cas 1672, 19 CCH EPD 9045, affd (CA10) 628 F Supp 1301, 23 BNA FEP Cas
1221, 24 CCH EPD 31218.
Annotation: Right to maintain private employment discrimination action under
Executive Order 11246, as amended, prohibiting employment discrimination by
government contractors and subcontractors, 31 ALR Fed 108.
2120 Title VI of the Civil Rights Act of 1964; government suits

View Entire Section
In addition to providing for the termination of financial assistance, Title VI authorizes
compliance to be effected "by any other means authorized by law." 40 Such other
methods of enforcement available to agencies to insure compliance include referral to the
Department of Justice for civil action. 41 An action by the Justice Department takes the
form of a suit for declaratory and equitable relief to enjoin violation of Title VI 42 or a
suit to specifically enforce contractual assurances of compliance with Title VI. 43
Footnotes
Footnote 41. NAACP, Western Region v Brennan (1973, DC Dist Col) 360 F Supp 1006,
Footnote 42. Anderson v San Francisco Unified School Dist. (1972, ND Cal) 357 F Supp
248, 5 BNA FEP Cas 362, 5 CCH EPD 8458; Hicks v Weaver (1969, ED La) 302 F
Supp 619.
Footnote 43. United States v Marion County School Dist. (1980, CA5) 625 F2d 607, reh
den (CA5) 629 F2d 1350 and cert den 451 US 910, 68 L Ed 2d 298, 101 S Ct 1980.
2121 Title VI; private suits

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The nearly unanimous view of the courts that have considered the question is that Title
VI's unequivocal prohibition against discrimination in federally funded programs gives
rise to an implied private right of action by a person aggrieved by a recipient's violation
of that prohibition. 44
In its Cannon decision, finding an implied right of action
under Title IX of the Education Amendments of 1972, 45 the Supreme Court has left
little room for doubt that a private right of action is also available under Title VI. 46
There is even some authority that a private right of action exists under Title VI
irrespective of the compensatory effect of the relief sought or granted. 47
However,
there is no private right of action against the fund granting agency or responsible federal
official for an injunction terminating the funding of a discriminatory program. 48
Title VI specifically states that it does not authorize action with respect to any practice of
any employer, employment agency, or labor organization unless a primary objective of
the federal financial assistance is to provide employment. 49 However, this requirement
was deemed to have been met in one case where the federal funds were used to pay the
salaries of employees and to finance employee recruitment programs. 50
In order to bring a private action, the plaintiff must be the intended beneficiary of,
applicant for, or participant in the federally funded program. 51
Footnotes
CCH EPD 31714; Guardians Asso. of New York City Police Dept., Inc. v Civil Service
Com. (1979, SD NY) 466 F Supp 1273, 19 BNA FEP Cas 121, 19 CCH EPD 9034, affd
in part and remanded in part on other grounds (CA2) 633 F2d 232, 23 BNA FEP Cas
BNA FEP Cas 1683, 26 CCH EPD 31881; NAACP v Medical Center, Inc. (1979, CA3)
599 F2d 1247; Uzzell v Friday (1977, CA4) 547 F2d 801, on reh (CA4) 558 F2d 727,
vacated on other grounds 438 US 912, 57 L Ed 2d 1158, 98 S Ct 3139, on remand
(CA4) 591 F2d 997.
Fifth CircuitYoung v Pierce (1982, ED Tex) 544 F Supp 1010; Yakin v University of
Illinois, Chicago Circle Campus (1981, ND Ill) 508 F Supp 848; Gilliam v Omaha (1975,
DC Neb) 388 F Supp 842, affd (CA8) 524 F2d 1013.
Tenth CircuitSerna v Portales Municipal Schools (1974, CA10) 499 F2d 1147.
Footnote 46. Cannon v University of Chicago (1979) 441 US 677, 60 L Ed 2d 560, 99
S Ct 1946, 19 CCH EPD 9202.
Implication of private right of action from provision of federal statute not expressly
providing for oneSupreme Court cases, 61 L Ed 2d 910.
US 940, 69 L Ed 2d 954, 101 S Ct 3083, 25 BNA FEP Cas 1683, 26 CCH EPD 31881
(concurring opinion of Judge Coffrin).
Footnote 48. Craft v Board of Trustees (1981, ND Ill) 516 F Supp 1317.
(1979, SD NY) 466 F Supp 1273.
Footnote 51. Simpson v Reynolds Metals Co. (1980, CA7) 629 F2d 1226.
2122 Title IX
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The ban on sex discrimination in education programs that receive federal financial
assistance under Title IX of the Education Amendments of 1972, contains an implied
private right of action for its enforcement. 52
However, a court has interpreted
Cannon to be limited to nonemployment matters, where the plaintiff has no recourse to
Title VII's employment discrimination protections. Therefore, it concluded that there is
no private right to sue for employment discrimination claims under Title IX, nor may an
individual sue to abolish the federal funding of an educational institution. 53
The EEOC has also determined that filing a complaint against an entity covered by Title
IX does not deprive a complainant of any rights she might also have under Title VII. 54
2122 ----Title IX [SUPPLEMENT]
Case authorities:
In employment discrimination case, Title IX of Education Act (20 USCS 1681 et
seq.) is properly construed as Title VII of Civil Rights Act of 1964 (42 USCS 2000e
et seq.) was construed at time events underlying the action occurred (1989), and not in
accordance with 1991 amendments to Title VII, which permit finding that employer has
committed unlawful employment practice whenever improper consideration is motivating
factor in employment decision, irrespective of whether employer would have taken same
action in absence of improper consideration. Preston v Virginia ex rel. New River
Community College (1994, CA4 Va) 31 F3d 203, 65 BNA FEP Cas 877.
Title VII (42 USCS 2000e et seq.), and judicial interpretations of it, provide
persuasive body of standards to which courts may look in shaping contours of private
right of action under Title IX of Education Amendments of 1972 (20 USCS 1681 et
seq.), particularly with respect to those actions that raise employment discrimination
claims. Preston v Virginia ex rel. New River Community College (1994, CA4 Va) 31 F3d
203, 65 BNA FEP Cas 877.
Terminated women's gymnastics coach has no viable Title IX (20 USCS 1681) claim
against university, even if she was paid less than head coaches of several men's athletic
teams which were less successful than her program, because (1) applicable state statute of
limitation bars claim filed more than year after receipt of last paycheck, and (2) crux of
inquiry is whether differentials in coaches' compensation result in denial of equal athletic
opportunity for athletes, which is not even alleged. Deli v University of Minnesota (1994,
DC Minn) 863 F Supp 958, 65 BNA FEP Cas 1026, 2 BNA WH Cas 2d 448.
Timely filing of charge of employment discrimination and retaliation with EEOC
pursuant to Title VII (42 USCS 2000e et seq.) does not toll running of limitations
period applicable to other actions, based on same facts, brought under 42 USCS 1983
and Title IX of Education Amendments of 1972 (20 USCS 1681 et seq.), because
1983 and Title IX claims are separate, distinct and independent from Title VII claims,
and procedures and remedies of 1983 and Title IX claims are not wholly integrated
with Title VII procedures and remedies. Linville v Hawaii (1994, DC Hawaii) 874 F
Footnotes
Footnote 52. Cannon v University of Chicago (1979) 441 US 677, 60 L Ed 2d 560, 99
S Ct 1946, 19 CCH EPD 9202.
Footnote 53. Storey v Board of Regents (1985, WD Wis) 604 F Supp 1200, 37 BNA FEP
Cas 701, 37 CCH EPD 35295.
6870.
2123 Section 402 of the Veterans Act and 503 of the Rehabilitation Act
View Entire Section
Go to Supplement
As provided in pertinent OFCCP regulations governing actions for noncompliance with
affirmative action obligations to handicapped workers 55 and affirmative action
obligations to veterans, 56 the Director of the OFCCP may, within the limitations of the
applicable law, seek judicial action, including appropriate injunctive relief, to enforce the
provisions of affirmative action clauses.
Although the OFCCP Director may take enforcement action by judicial proceedings, the
prevailing view is that neither 29 USCS 793 57
nor 38 USCS 2012 58
implicitly authorizes a private cause of action in federal court by a handicapped

individual or veteran against a contractor for failing to comply with the contractual
affirmative action provisions. One court has held that there is such a private cause of
action; 59 however, there is authority to the contrary in the same Circuit. 60
Notwithstanding the absence of a private cause of action for violations of the affirmative
action requirements mandated under 503, an employee who was a third-party
beneficiary to a conciliation agreement concluded between his employer and the OFCCP
in settlement of a 503 complaint was allowed to sue to enforce the agreement. 61
Under the prevailing view, where there is no private cause of action, any state law that
allows such a remedy is pre-empted. 62
2123 ----Section 402 of the Veterans Act and 503 of the Rehabilitation Act
[SUPPLEMENT]
Regulations:
Case authorities:
No private right of action exists under 503(a) of Rehabilitation Act (29 USCS 793).
Egan v Wells Fargo Alarm Servs. (1993, ED Mo) 7 ADD 651, 2 AD Cas 1124.
There is no private right of action under 503 of Rehabilitation Act (29 USCS 793).
Schrader v Gulf Oil (1994, ED Pa) 7 ADD 358.
Footnotes
Footnote 55. 41 CFR 60-741.28(b).
Footnote 56. 41 CFR 60-250.28(b).
Footnote 57. Auffant v Searle & Co. (1981, DC Puerto Rico) 25 BNA FEP Cas 1254.
Second CircuitDavis v United Air Lines, Inc. (1981, CA2) 662 F2d 120, 26 BNA FEP

Third CircuitBeam v Sun Shipbuilding & Dry Dock Co. (1982, CA3) 679 F2d 1077,
Fourth CircuitPainter v Horne Bros., Inc. (1983, CA4) 710 F2d 143.
Fifth CircuitRogers v Frito-Lay, Inc. (1980, CA5) 611 F2d 1074, 22 BNA FEP Cas 16,
FEP Cas 1668, 24 CCH EPD 31256.
Sixth CircuitHoopes v Equifax, Inc. (1977, CA6) 611 F2d 134, 22 BNA FEP Cas 957,
23 CCH EPD 30919.
Seventh CircuitSimpson v Reynolds Metals Co. (1980, CA7) 629 F2d 1226, 23 BNA
Eighth CircuitSimon v St. Louis County (1981, CA8) 656 F2d 316, 26 BNA FEP Cas
Ninth CircuitFisher v Tucson (1981, CA9) 663 F2d 861, 27 BNA FEP Cas 892, 27
Cas 1560, 30 CCH EPD 33063.
Tenth CircuitHodges v Atchison, T. & S. F. R. Co. (1984, CA10 Okla) 728 F2d 414,
34 BNA FEP Cas 457, 115 BNA LRRM 3222, 33 CCH EPD 34146, 100 CCH LC
Eleventh CircuitHoward v Uniroyal, Inc. (1983, CA11) 719 F2d 1552, 33 BNA FEP
Cas 453, 32 CCH EPD 33927; Stephens v Roadway Express Co. (1982, ND Ga) 29
CCH EPD 32941, 95 CCH LC 13893.
Annotation: Availability of private right of action under 503 of Rehabilitation Act of
1973 (29 USCS 793), providing that certain federal contracts must contain provision
requiring affirmative action to employ qualified handicapped individuals, 60 ALR Fed
329.
Footnote 58. Barron v Nightingale Roofing, Inc. (1988, CA1 Me) 842 F2d 20, 127 BNA
LRRM 2996, 34 CCF 75462, 46 CCH EPD 37895; Wood v Diamond State Tel. Co.
(1977, DC Del) 440 F Supp 1003, 18 BNA FEP Cas 647, 16 CCH EPD 8154; Butler v
McDonnell-Douglas Saudi Arabia Corp. (1981, SD Ohio) 93 FRD 384, 110 BNA LRRM
2048.
Footnote 59. Davis v Modine Mfg. Co. (1981, DC Kan) 526 F Supp 943, 28 BNA FEP
Cas 155, 29 CCH EPD 32799.
Footnote 60. Brown v American Home Products Corp. (1981, DC Kan) 520 F Supp 1120,
Annotation: Availability of private right of action under sec. 503 of Rehabilitation Act
of 1973 (29 USCS sec. 793), providing that certain federal contracts must contain
provision requiring affirmative action to employ qualified handicapped individuals, 60
ALR Fed 329.
Footnote 61. McBee v Mack Trucks, Inc. (1987, DC Md) 655 F Supp 1459, 43 BNA FEP
Cas 607, 45 CCH EPD 37598..
Footnote 62. Howard v Uniroyal, Inc. (1981, MD Ala) 543 F Supp 490, 29 BNA FEP
Cas 1518.
2124 Section 504 of the Rehabilitation Act

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Since the remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of
1964 63 are available to any person aggrieved by a recipient of federal assistance under
504 of the Rehabilitation Act, 64 it is generally recognized that 29 USCS 794
confers a private right of action on those persons the Rehabilitation Act intends to benefit
as a means of enforcement. 65
Furthermore, the Supreme Court has held that the
private right of action does not depend on whether the federal aid received by the
employer was primarily intended to provide employment opportunities. The high court
rejected the contention that 504 incorporates the Title VI limitation that the "primary
objective" of the aid must be "to provide employment". 66 Rather, said the court, 504
prohibits discrimination against the handicapped under any program or activity receiving
federal financial assistance. 67
However, in order to maintain an action, a plaintiff must show both that the employer is
"a program or activity receiving federal financial assistance" and that he is an employee
of a particular program benefited by those funds. 68
State courts have concurrent jurisdiction with federal courts over 504 actions, since
Congress did not explicitly or implicitly limit 504 actions to federal courts, and there is
no incompatibility between state court jurisdiction and federal interests. 69
2124 ----Section 504 of the Rehabilitation Act [SUPPLEMENT]
Case authorities:
Elements of claim under 29 USCS 794 are that (1) plaintiffs are individuals with
disabilities as defined in Rehabilitation Act; (2) plaintiffs are otherwise qualified to
participate in program or activity at issue; (3) plaintiffs have been excluded from
program or activity solely by reason of disability; and (4) program or activity received
federal financial assistance. Martin v Voinovich (1993, SD Ohio) 840 F Supp 1175, 43
Soc Sec Rep Serv 409, 4 ADD 1240.
Claims by terminated employees that their terminations were result of national origin
discrimination, age discrimination, and retaliation and interference prohibited by 510 of
Employee Retirement Income Security Act (29 USCS 1140) constitute significant, if
not insurmountable, barrier to success on employees' claims under 504 of
Rehabilitation Act (29 USCS 794) that they were discriminated against solely because
of their disabilities. Szymanska v Abbott Lab. (1994, ND Ill) 4 ADD 895.
Footnotes
Footnote 65. Cruz v Collazo (1979, DC Puerto Rico) 84 FRD 307.
Second CircuitLeary v Crapsey (1977, CA2) 566 F2d 863.
Third CircuitNAACP v Medical Center, Inc. (1979, CA3) 599 F2d 1247.
Fourth CircuitDavis v Southeastern Community College (1978, CA4) 574 F2d 1158,
revd on other grounds 442 US 397, 60 L Ed 2d 980, 99 S Ct 2361, 20 CCH EPD
30003.
Fifth CircuitBaker v Bell (1980, CA5) 630 F2d 1046.
Sixth CircuitJennings v Alexander (1983, CA6) 715 F2d 1036.
Seventh CircuitLloyd v Regional Transp. Authority (1977, CA7) 548 F2d 1277, 44
ALR Fed 131.
Eighth CircuitMiener v Missouri (1982, CA8) 673 F2d 969; United Handicapped
Federation v Andre (1977, CA8) 558 F2d 413.
Ninth CircuitKling v County of Los Angeles (1980, CA9) 633 F2d 876.
Footnote 66. 2121.
Footnote 67. Consolidated Rail Corp. v Darrone, (1984) 465 US 624, 79 L Ed 2d 568,
104 S Ct1248, 34 BNA FEP Cas 79, 33 CCH EPD 34157.
Footnote 68. Carmi v Metropolitan St. Louis Sewer Dist. (1980, CA8) 620 F2d 672, 22
S Ct 249, 23 BNA FEP Cas 1668, 24 CCH EPD 31256; Doyle v University of Alabama
(1982, CA11) 680 F2d 1323, 29 BNA FEP Cas 777, 30 CCH EPD 33052; Pittsburgh
Federation of Teachers v Langer (1982, WD Pa) 546 F Supp 434.
Footnote 69. Elek v Huntington Nat. Bank (1989, Ohio App, Franklin Co) 50 BNA FEP
Cas 1396, motion gr 47 Ohio St 3d 702, 547 NE2d 988 and motion gr 47 Ohio St 3d 715,
549 NE2d 171 and review pending 49 Ohio St 3d 705, 551 NE2d 616 and motion gr 51
Ohio St 3d 708, 555 NE2d 319 and motion gr 52 Ohio St 3d 702, 556 NE2d 527 and affd,
remanded 60 Ohio St 3d 135, 573 NE2d 1056, 56 BNA FEP Cas 327, 57 CCH EPD
40922, affd (1991, Ohio) 60 Ohio St 3d 135).
2125 Federal employment cases under 501 or 504 of the Rehabilitation Act
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The courts have split in determining whether a private right of action is available to
federal employees under either 501 70 or 504 of the Rehabilitation Act. 71 Some
courts have held that federal employees or applicants for federal employment may pursue
remedies for handicap discrimination under both 501 and 504, 72
while others
have held that 501 is the exclusive remedy for federal employees alleging handicap
discrimination. 73 Alternatively, the Seventh Circuit has indicated that distinctions
between 501 and 504 have little consequence for federal employee purposes because
both provisions are subject to Title VII's procedural requirements governing actions by
federal employees. 74
2125 ----Federal employment cases under 501 or 504 of the Rehabilitation Act
[SUPPLEMENT]
Case authorities:
Women alleging that health insurance provider's refusal to cover bone marrow
transplants for treatment of breast cancer violates Rehabilitation Act, 29 USCS 701 et
seq., may not sue provider under 29 USCS 794, where women are federal employees,
Office of Personnel Management (OPM) contracts with provider for insurance coverage
for employees, and insurance coverage is provided through government procurement
contract, because Rehabilitation Act claims may be brought only against OPM, which is
responsible for Rehabilitation Act compliance, and OPM has discretion to determine
health benefit packages. Dodd v Blue Cross & Blue Shield Ass'n (1993, ED Va) 835 F
Supp 888, 17 EBC 1905.
Although postal sevice employment applicant, who was rejected due to hypertension,
failed to seek Equal Employment Opportunity counseling within 45 days as required by
applicable regulation, applicant was entitled to sue under 501 of Rehabilitation Act (29
USCS 791) because grounds for tolling limitations period were established in that
applicant was not informed what specific medical risk she had for several months which
prevented her from filing discrimination claim with EEO counselor, and applicant did not
have proper notice of her rights and limitations period. Johnson v Runyon (1995, CA7
Ill) 47 F3d 911, 8 ADD 656.
Action by former employee of regional federal reserve bank alleging failure to
accommodate her disability and wrongful discharge because of disability in violation of
501 and 505 of Rehabilitation Act (29 USCS 791, 794a) was dismissed for lack of
subject matter jurisdiction because Federal Reserve Bank is private employer, not federal
executive agency, and therefore 505 of Rehabilitation Act does not apply to it.
Katsiavelos v Federal Reserve Bank (1994, ND Ill) 859 F Supp 1183, 6 ADD 169.
Footnotes
Footnote 72. Fifth CircuitPrewitt v United States Postal Service (1981, CA5 Miss) 662
F2d 292, 27 BNA FEP Cas 1043, 27 CCH EPD 32251ec.
Sixth CircuitSmith v United States Postal Service (1984, CA6 Mich) 742 F2d 257, 35
Eighth CircuitMorgan v United States Postal Service (1986, CA8 Iowa) 798 F2d 1162,
107 S Ct 1608, 43 BNA FEP Cas 560.
Eleventh CircuitDoe v Garrett (1990, CA11 Fla) 903 F2d 1455, 53 BNA FEP Cas 335,
54 CCH EPD 40053, cert den (US) 113 L Ed 2d 213, 111 S Ct 1102, 55 BNA FEP
Cas 144, 55 CCH EPD 40570.
As to whether Title VII exhaustion of administrative remedies requirements apply in
504 actions, see 2299 et seq.
Footnote 73. Second CircuitDi Pompo v West Point Military Academy (1989, SD NY)
708 F Supp 540, 49 BNA FEP Cas 586, 50 CCH EPD 39182, complaint dismd (SD
NY) 770 F Supp 887, 56 BNA FEP Cas 1140, 57 CCH EPD 41211, affd (CA2 NY) 960
F2d 326, 58 CCH EPD 41418.
Ninth CircuitJohnston v Horne (1989, CA9 Wash) 875 F2d 1415, 49 BNA FEP Cas
1806, 50 CCH EPD 39056, amd, reh den, en banc (CA9 Wash) 51 CCH EPD 39354).
Tenth CircuitJohnson v United States Postal Service (1988, CA10 Colo) 861 F2d
1475, 48 BNA FEP Cas 686, 48 CCH EPD 38520, 12 FR Serv 3d 1124, cert den 493
US 811, 107 L Ed 2d 23, 110 S Ct 54, 50 BNA FEP Cas 1495, 51 CCH EPD 39414).
Footnote 74. McGuinness v United States Postal Service (1984, CA7 Wis) 744 F2d 1318,
2126 Federal Aviation Act

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The general antidiscrimination provisions in the Federal Aviation Act 75 and the
antidiscrimination provision relating to the public's interest in the availability of a variety
of air carrier services 76 do not create private causes of action for pilot applicants who
are denied employment by an airline on account of age. 77
Footnotes
Footnote 77. Kodish v United Air Lines, Inc. (1980, CA10) 628 F2d 1301.
2127 Federal migrant farm workers' statute

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Private suits for violation of the Migrant and Seasonal Agricultural Worker Protection
Act (MSPA) 78 and implementing regulations 79 may be brought in the United States
District Court having jurisdiction over the parties. The District Courts have jurisdiction
regardless of the amount in controversy, the citizenship of the parties, and whether
alternative administrative remedies 80 have been exhausted. 81
The MSPA does not exclude concurrent jurisdiction between state and federal courts with
regard to the rights created by the Act. Therefore, although the federal courts have
exclusive jurisdiction for enforcing the Act, state courts have concurrent jurisdiction to
enforce the rights created by the Act. 82
Footnotes
Footnote 82. S. P. Growers Asso. v Rodriguez (1976) 17 Cal 3d 719, 131 Cal Rptr 761,
552 P2d 721.

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Suits for compliance and relief under the Employee Polygraph Protection Act (EPPA)
can be brought by the Department of Labor 83 and by private individuals. 84
The
taking of an action by the DOL or a private individual does not prevent the concurrent
pursuit of any other appropriate legal action. 85
The Solicitor of Labor may appear for and represent the Secretary of Labor in any civil
litigation brought under the EPPA, except for Supreme Court proceedings, as specified
by 28 USCS 518(a). 86
Observation: While the EPPA specifies particular prohibitions involving worker

privacy that apply directly to the conduct of polygraph examiners 87 the Act does not
explicitly provide for suits against anyone but covered employers.
Case authorities:
Police officers failed to state 42 USCS 1983 claim that their Fifth Amendment rights
against self-incrimination were violated when they were ordered to undergo polygraph
exam as condition of continued employment, where officers were never asked to waive
their constitutional privilege against self-incrimination, information was never used in
criminal proceeding, and questions posed to them were narrowly job-related. Wiley v
Mayor of Baltimore (1995, CA4 Md) 48 F3d 773, 10 BNA IER Cas 609.
Footnotes
Suits by the Secretary of Labor or Attorney General concerning the enforcement of
subpoenas and civil penalties or seeking restraining orders are discussed at 2039 et
seq. Suits by the Secretary seeking injunctive relief are discussed at 2890 et seq.
A discussion of which individuals may bring a private suit under the Act is located at
120. Time limitations involving private suits are discussed at 2174 et seq., and venue
for all actions is discussed at 2154 et seq.
2129 Export Administration Act

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Jewish persons who were injured by acts made illegal under the Export Administration
Act 88 have an implied private cause of action under the Act, because a private action is
consistent with the underlying purposes of the legislative scheme, and there is no
traditional state law to govern this type of action. 89
Footnotes
806, 41 CCH EPD 36682.
B. Where to Bring Suit [2130-2172]
Research References
5 USCS 703, 7702, 7703; 28 USCS 1331, 1332, 1337, 1343, 1361, 1391, 1404,
1406, 1441, 1446, 2343; 29 USCS 216, 217, 626, 633a, 794a; 42 USCS 1985,
2000d-1, 2000d-2, 2000d-7, 2000e-5, 2000e-6, 2000e-16
1 Federal Procedure, L Ed, Access to District Courts 1:624 et seq.; 6 Federal
Procedure, L Ed, Civil Rights 11:101 et seq.
Employment Coordinator 39,201 et seq.
1. Jurisdiction of State and Federal Courts [2130-2144]
a. Title VII Cases [2130-2132]
2130 Private suits

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United States district courts and the courts of places subject to the jurisdiction of the
United States have jurisdiction over actions brought under Title VII. 90
(RIA)Observation: While this provision apparently applies to all actions brought under
the Act, separate provisions in Title VII govern federal employees' and applicants' suits
91 as well as certain types of suits brought by the EEOC and the Attorney General. 92
The Supreme Court has determined that jurisdiction over Title VII claims is shared by
state and federal courts. The grant of Title VII jurisdiction to federal courts is not
exclusive since the Act does not expressly exclude state court jurisdiction. 93
State aspects: Most state fair employment practices, age discrimination, and equal
pay statutes authorize court suits by state agencies or private parties to review or
enforce administrative decisions in job discrimination cases. 94
2130 ----Private suits [SUPPLEMENT]
Practice Aids: Civil rightsemployment discrimination: Modifying federal standards
to reflect principles of state law. The North Dakota Supreme Court's examination of the
Hicks rationale prompts the court to customize its own standard to review state-based
employment discrimination claims, 70 ND LR 207 (1994).
Case authorities:
Congress, in enacting Title VII, did not forbid jurisdiction over supplemental claims by
implication. Rodriguez v Doral Mortgage Corp. (1995, CA1 Puerto Rico) 57 F3d 1168,
68 BNA FEP Cas 331.
District court has concurrent jurisdiction with bankruptcy court to determine
dischargeability in defendant's bankruptcy of plaintiff's Title VII claim. Zachery v
Whalen (1994, ND NY) 65 BNA FEP Cas 935.
District court hearing action based on Title VII retained pendent jurisdiction over state
claim under New York human rights law, since jury would hear only state claim; further,
even though jury's resolution of any common issues of fact in both federal and state
claims would govern case, that factor alone is not sufficient basis to hold that state claim
predominates over federal claim. Sanborn v Hunt Real Estate Corp. (1994, WD NY) 65
BNA FEP Cas 1305.
District court did not have subject matter jurisdiction over Title VII action brought
against EEOC, which alleged that EEOC violated plaintiff's civil rights when it dismissed
plaintiff's discrimination charge against his local union, since EEOC was not
discriminating private or public employer in such action. Mitchell v EEOC (1995, ED
Pa) 888 F Supp 710, 68 BNA FEP Cas 397.
Former employee's employment discrimination case against diverse employer and
nondiverse supervisor is remanded to state court, where factual uncertainty surrounding
claim of supervisor's involvement in allegedly age-related and wrongful discharge of
plaintiff precludes early determination of that claim, because it cannot be said at this
stage that supervisor was fraudulently joined to defeat diversity removal jurisdiction.
Young v Bailey Corp. (1996, ED Mich) 913 F Supp 547.
Federal district court had subject matter jurisdiction over Title VII plaintiff's state law
claim for assault and battery, since both federal and state claims arose from common
nucleus of facts. Ammerman v Sween (1995, CA7 Wis) 54 F3d 423, 67 BNA FEP Cas
1249.
Court is not deprived of jurisdiction to entertain Title VII claims merely because
defendants are religious entities, as statute recognizes that claims for discrimination in
employment on account of race, national origin, or sex are cognizable against religious
entities; however, courts should avoid questions pertaining to church's governance or
hierarchy, so that claims against religious entities under Title VII involving employees
engaged in religious mission of church and propagation of its ecclesiastical pursuits
should be dismissed. Young v Northern Ill. Conference of United Methodist Church
(1993, ND Ill) 818 F Supp 1206, 61 BNA FEP Cas 1157.
District court did not lack subject matter jurisdiction over Title VII action because
plaintiff was not entitled to backpay and did not seek reinstatement, since such factors are
not determinative of court's subject matter jurisdiction, and plaintiff had requested relief
that court had discretion to award if it found that plaintiff's claim had merit. Melendez v
Illinois Bell Tel. Co. (1994, ND Ill) 66 BNA FEP Cas 649.
District court had subject matter jurisdiction over Title VII action, despite defendant
employer's contention that because it is carrier under Railway Labor Act (45 USCS
151 et seq.), plaintiff's claims are subject to compulsory binding arbitration that is
required for all work-related disputes between unionized employees and employers
subject to Act, because plaintiff's Title VII claims did not require reference to or
interpretation of relevant collective bargaining agreement, and such claims are
independent statutory rights accorded by Congress. Greene v United Parcel Serv. (1994,
ND Ill) 864 F Supp 48, 66 BNA FEP Cas 331, 147 BNA LRRM 2957.
Former car salesman's disability discrimination action is stayed and arbitration is
compelled by clause in his employment agreement, where clause clearly covers his
claims, because exclusionary clause in 9 USCS 1 should be narrowly construed to
cover only workers directly involved in interstate transportation of goods, not all
employment contracts. Golenia v Bob Baker Toyota (1996, SD Cal) 915 F Supp 201, 15
ADD 499, 5 AD Cas 482.
Where parties to Title VII lawsuit reached settlement, trial court entered administrative
closing order in court docket which gave parties sixty days to reopen litigation, and
plaintiff filed dismissal with prejudice document with court clerk, district court did not
have subject matter jurisdiction over subsequent suit filed by plaintiff which alleged that
defendant had breached settlement agreement, because administrative closing order
which notifies parties that case will be dismissed with prejudice absent action on their
part within specified period of time is sufficient to terminate case; in such cases, district
court does not retain jurisdiction. Morris v City of Hobart (1994, CA10 Okla) 39 F3d
1105, 66 BNA FEP Cas 285.
Congress did not intend in Title VII to confer federal question jurisdiction over contract
disputes arising out of private settlements. Morris v City of Hobart (1994, CA10 Okla) 39
F3d 1105, 66 BNA FEP Cas 285, 29 FR Serv 3d 1135.

U.S. Court of Federal Claims lacks jurisdiction to entertain basic Title VII race
discrimination claims. Lee v United States (1995) 33 Fed Cl 374, 1995 US Claims
LEXIS 80.
Footnotes
Footnote 91. 2131.
Footnote 92. 2132.
Footnote 93. Yellow Freight System, Inc. v Donnelly (1990) 494 US 820, 108 L Ed 2d
Footnote 94. These state EEO laws are noted and discussed in Employment Coordinator
39,201 et seq.
2131 Federal employees' and applicants' suits

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Discrimination claims of federal employees or applicants for federal employment are
governed by separate provisions of Title VII. Although they establish procedural
requirements which do not apply to other claimant classes under Title VII, the federal
employment provisions incorporate by reference the same provision that vests
jurisdiction in the United States district courts and the courts of places subject to the
jurisdiction of the United States for other types of Title VII suits. 95
Observation: A plaintiff who claims civil rights violations by a federal actor may
invoke 28 USCS 1343(4) as a jurisdictional basis for a suit. 96
The United States Claims Court lacks jurisdiction over actions to enforce agreements
settling Title VII claims against the Federal Government, since such settlement
agreements are the direct results of discrimination claims, and the district courts have
jurisdiction over Title VII claims. 97 The U.S. Claims Court also lacks jurisdiction over
actions to enforce EEOC remedial orders resulting from Title VII charges against the
Federal Government, since the EEOC is not an executive department over which the
Claims Court has jurisdiction under the law defining that court's jurisdiction (28 USCS
1491 et seq.). Jurisdiction over such actions is vested in the district courts. 98
However, when a Title VII claim is erroneously brought before the Claims Court, it may,
in the interests of justice, transfer the case to the proper federal district court rather than
dismiss it. 99
When a federal employee or applicant alleging a Title VII violation has appealed to the
Merit Systems Protection Board (MSPB) under the Civil Service Reform Act, 1 any
action for judicial review of the Board's decision is governed by the same provisions that
establish jurisdiction in the federal district courts and the courts of places subject to the
jurisdiction of the United States for federal employees' or applicants' actions brought
under Title VII. 2
Although the Federal Circuit has exclusive jurisdiction to review
any MSPB final order resolving issues unrelated to employment discrimination, it has no
jurisdiction over discrimination issues that are actionable under the federal discrimination
laws. Thus, where a federal employee or applicant for federal employment with a mixed
claim involving alleged violations of Title VII and other adverse personnel actions
knowingly chooses to proceed in the Federal Circuit, his forum election constitutes a
waiver of the Title VII claim. 3 While a district court may dismiss an entire mixed case
when it finds that a plaintiff has engrafted a sham discrimination claim onto his
complaint in order to defeat the Federal Circuit's jurisdiction, the district court's
jurisdiction over the nondiscrimination claim does not automatically disappear with any
dismissal of a discrimination claim that is not a sham. The district court has the discretion
to retain jurisdiction over the nondiscrimination claim or transfer the case to the Federal
Circuit. 4
When claims involving alleged violations of Title VII are brought before military boards
for the correction of service records, the boards' decisions are not subject to challenge in
federal district court unless they were arbitrary, capricious, in bad faith, unsupported by
substantial evidence, or contrary to law or regulation. 5
2131 ----Federal employees' and applicants' suits [SUPPLEMENT]
Case authorities:
Where federal employee had prevailed in administrative proceeding before General
Accounting Office's (GAO) Personnel Appeals Board (employee had claimed that GAO
had unlawfully retaliated against him for filing employment discrimination complaints),
and was dissatisfied with award of attorney's fees from Board, employee was required to
bring action in Court of Appeals for Federal Circuit, rather than district court, based on
31 USCS 755; 31 USCS 732(f)(2), which provides that GAO employees enjoy same
rights and remedies regarding employment discrimination as employees in executive
branch (who are entitled to trial de novo in district court after receiving final decision on
their complaint either from employing agency or from EEOC pursuant to 42 USCS
2000e- 16(c)), does not make 755's exclusive jurisdictional grant merely optional.
Ramey v Bowsher (1993, App DC) 9 F3d 133, 63 BNA FEP Cas 381, 63 CCH EPD
42687.
Footnotes
Footnote 95. 42 USCS 2000e-5(f)(3) and 2000e-16(c).
Footnote 96. Berntson v Cheney (1991, ND Ill) 1991 US Dist LEXIS 2092.
Footnote 97. Fausto v United States (1989) 16 Cl Ct 750, 50 CCH EPD 39091.
Footnote 98. Jones v United States (1989) 17 CL Ct 78.
Footnote 99. Montalvo v United States (1989) 17 Cl Ct 744, 50 BNA FEP Cas 1327.
Footnote 2. 5 USCS 7703(b)(2); 42 USCS 2000e-5(f)(3) and 2000e-16(c).
Footnote 3. Smith v Horner (1988) 270 App DC 62, 846 F2d 1521, 46 BNA FEP Cas
1523.
Footnote 4. Afifi v U.S. Dept of Interior (1991, CA4) 924 F2d 61, 54 BNA FEP Cas
1619, amd (CA4 Va) 55 CCH EPD 40579, noting that the factors involved in exercising
this discretion include judicial economy generally, a concern for the uniformity in federal
personnel policy that Congress envisioned when it gave exclusive jurisdiction over
nondiscrimination claims to the Federal Circuit, and a concern for any prejudice or
hardship to litigants.
Footnote 5. Ayala v United States (1988) 16 Cl Ct 1.
2132 EEOC and Attorney General suits

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United States district courts and the courts of places subject to the jurisdiction of the
United States have the power to hear individual suits brought by the EEOC against
private sector employers 6 or the Attorney General against governmental entities and
political subdivisions, 7 as well as pattern-or-practice suits brought by the EEOC. 8
2132 ----EEOC and Attorney General suits [SUPPLEMENT]
Case authorities:
District court does not have subject matter jurisdiction over action which seeks damages
based on EEOC's alleged failure to investigate charge that plaintiff filed with EEOC
against his former employer. Materson v Stokes (1996, ED Va) 166 FRD 368, 70 BNA
FEP Cas 1630.
Footnotes

Footnote 8. 42 USCS 2000e-6(b), 2000e-6(c).
b. Early Civil Rights Act Cases [2133-2135]
2133 Section 1981

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There is no express provision in 42 USCS 1981 authorizing civil enforcement actions.
Section 1981 is a remedial statute which does not, in itself, confer jurisdiction on any
court. The federal jurisdictional statute for civil rights and elective franchise suits, which
grants original jurisdiction to the district courts for any civil action instituted to recover
damages or to secure equitable or other relief under any act of Congress providing for the
protection of civil rights, 9 has been held to be the proper source of jurisdiction for
1981 suits. 10 Federal jurisdiction over 1981 actions under 28 USCS 1343 is not
conditioned on any minimum dollar amount in controversy. 11
State and federal courts share concurrent jurisdiction over 1981 claims. 12
Observation: Federal court jurisdiction over 1981 actions may also conceivably be
derived from the federal jurisdictional statute for federal question suits (28 USCS
1331), or from the federal jurisdictional statute for diversity suits, provided that the
requirements of diversity of citizenship and minimum amount in controversy are
satisfied (28 USCS 1332). These provisions are discussed in greater detail in
connection with suits brought under 1983 13 and the ADEA. 14
A district court's subject matter jurisdiction over a cause of action under 1981 is not
precluded by the Railway Labor Act (45 USCS 151 et seq.). 15
Case authorities:
Former employee of substance abuse treatment and rehabilitation center has no valid
federal claim against center for alleged race discrimination, where case arises out of
center's alleged responses to accusations by patients that former employee had been
under influence of cocaine while on job, but responsesincluding initial demand that he
submit to urinalysis, later withdrawn, and "pressuring" him to take different job at
centernever amounted to adverse employment action nor reached level that could
account for constructive discharge, because claims under 42 USCS 1981 require
invocation of federal question jurisdiction which is lacking in complaint. Thomas v St.
Luke's Health Sys. (1994, ND Iowa) 869 F Supp 1413, 129 CCH LC 57832.
Footnotes
CCH EPD 9307; Quarles v Texas (1970, SD Tex) 312 F Supp 835.
CCH EPD 9307.
F2d 459, 50 BNA FEP Cas 558, 4 BNA IER Cas 897, 51 CCH EPD 39263; Flournoy v
Akridge (1988, Ct App Ga) 189 Ga App 351, 375 SE2d 479.
Footnote 13. 2134.
Footnote 14. 2136.
Footnote 15. McAlester v United Air Lines, Inc. (1988, CA10) 851 F2d 1249, 47 BNA
2134 Section 1983

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Section 1983 of Title Section 42 is not itself a source of substantive legal rights. Rather,
it provides a means for vindicating federal rights created by other federal statutes or by
the Constitution. 16
Thus, 1983 does confer jurisdiction on any court. Courts have
held that jurisdiction over 1983 suits may be derived either from the federal
jurisdictional statute for civil rights and elective franchise suits, 17 which grants
original jurisdiction to the district courts for any civil action instituted to redress the
deprivation, under color of any state law, regulation, or custom, of any right, privilege, or
immunity secured by the Constitution or any act of Congress providing for equal rights of
citizens or persons within the jurisdiction of the United States, 18 or from the federal
jurisdictional statute for federal question suits, 19 which grants original jurisdiction to
the district Courts for any civil action arising under the Constitution, laws, or treaties of
the United States. 20
In order for a federal court to have jurisdiction under 28 USCS 1331 or 1343(a)(3),
the plaintiff must assert a substantial federal claim. Federal courts are powerless to
entertain claims that are so attenuated and insubstantial as to be absolutely devoid of
merit, wholly or plainly insubstantial, obviously frivolous, or no longer open to
discussion. For example, a federal district court refused to assert jurisdiction over a state
employee's 1983 due process claim where she had obviously had notice of the charges
against her and an opportunity to be heard. The issue of substantiality is especially
important where frivolous federal claims are used as pretexts to allow state-law issues to
be litigated in federal court under the doctrine of pendent jurisdiction. 21 Furthermore,
jurisdiction under 28 USCS 1343(a)(3) is limited to claims that constitutional rights
were violated by officials acting under state law. That jurisdictional provision is not
applicable to alleged violations by federal officials. 22
Federal and state courts share concurrent jurisdiction over 1983 actions. 23
Moreover, a state court ordinarily may not refuse to enforce such a federal claim if the
same type of claim arising under state law would be enforced in state court. 24
Footnotes
Footnote 16. Baker v McCollan (1979) 443 US 137, 61 L Ed 2d 433, 99 S Ct 2689.
Footnote 17. Second CircuitWinsey v Pace College (1975, SD NY) 394 F Supp 1324,
Third CircuitPinto v Clark (1976, ED Pa) 407 F Supp 1209.
Fourth CircuitMoreno v University of Maryland (1976, DC Md) 420 F Supp 541, affd
without op (1977, CA4) 556 F2d 573, vacated on other grounds (1979) 441 US 458, 60
L Ed 2d 354, 99 S Ct 2044.
Eighth CircuitPayne v Ballard (1984, ED Ark) 595 F Supp 878, affd (1985, CA8) 761
F2d 491.
Footnote 19. Murray v Murphy (1977, ED Pa) 441 F Supp 120; Payne v Ballard (1984,
ED Ark) 595 F Supp 878, affd (1985, CA8) 761 F2d 491.
Footnote 21. Davis v Pak (1988, CA4) 856 F2d 648.
Footnote 22. Giles v EEOC (1981, ED Mo) 520 F Supp 1198, 27 BNA FEP Cas 1757.
Footnote 23. Fourth CircuitKutzik v Young (1984, CA4) 730 F2d 149.
ConnecticutVason v Carrano (1974) 31 Conn Supp 338, 330 A2d 98.
MarylandMaryland Nat. Capital Park & Planning Com v Crawford (1984) 59 Md App
276, 475 A2d 494, 34 BNA FEP Cas 1731, 36 CCH EPD 35173, affd 307 Md 1, 511
A2d 1079, 41 CCH EPD 364200.
GeorgiaFlournoy v Akridge (1988, Ct App Ga) 189 Ga App 351, 375 SE2d 479.
Footnote 24. Martinez v California (1980) 444 US 277, 61 L Ed 2d 481, 100 S Ct 553.
2135 Section 1985

View Entire Section
Section 1985 of Title Section 42 is a remedial statute which does not confer jurisdiction
on federal courts. Jurisdiction over Section 1985 suits is derived from the federal
jurisdictional statute for civil rights and elective franchise suits, 25 which expressly
provides federal district court jurisdiction for suits to recover damages for injuries caused
by any act in furtherance of a 1985 conspiracy, 26 and for suits to recover damages
from any person who is able to prevent or aid in preventing any of the injuries
enumerated in 1985 and knowingly fails to do so. 27
State courts share concurrent jurisdiction over 1985 cases with the federal district
courts. 28
Footnotes
Footnote 25. Cristina v Department of State (1976, SC NY) 417 F Supp 1012; Giles v
EEOC (1981, ED Mo) 520 F Supp 1198, 27 BNA FEP Cas 1757.
Footnote 28. Bennun v Board of Governors of Rutgers, State University (1976, DC NJ)
413 F Supp 1274, 12 BNA FEP Cas 1393, 12 CCH EPD 10981; Vason v Carrano
(1974) 31 Conn Supp 338, 330 A2d 98.
c. ADEA Cases [2136, 2137]
2136 Suits against nonfederal employers

View Entire Section
Go to Supplement
The ADEA provision authorizing the institution of civil action against nonfederal
employers in any court of competent jurisdiction 29 does not specify which courts are
vested with such jurisdiction. However, federal district court jurisdiction over ADEA
suits may be derived from the federal jurisdictional statute for federal question suits, 30
or from the federal jurisdictional statute for diversity suits, 31 which grants original
jurisdiction to the district courts for all civil actions between citizens of different states or
between citizens of states and citizens or subjects of foreign states, where the amount in
controversy, excluding interest and costs, exceeds $50,000. 32
In addition, it has been held that federal district courts may assert original jurisdiction
over ADEA suits under the federal jurisdictional statute for commercial and antitrust
suits, without regard to diversity of citizenship, because the ADEA is an act regulating
commerce. 33 That jurisdictional statute grants original jurisdiction to the district courts
for any civil action arising under any act of Congress regulating commerce where the
amount in controversy, excluding interest and costs, exceeds $10,000. 34
State courts share concurrent jurisdiction over ADEA cases with the federal district court.
35
2136 ----Suits against nonfederal employers [SUPPLEMENT]
Case authorities:
Court took supplemental jurisdiction over ADEA plaintiff's state law claims, since any
confusion at trial could be dealt with at trial or in pre-trial order, and conflicts between
objectives or remedies among various statutes could be better dealt with by appropriate
construction of each, or by restricting application of some if necessary, rather than by
permitting simultaneous overlapping lawsuits. Chambers v Capital Cities/ABC (1994, SD
NY) 851 F Supp 543, 64 BNA FEP Cas 1029.
Court has jurisdiction over case brought under Age Discrimination in Employment Act
(29 USCS 621 et seq.) and Title VII (42 USCS 2000e et seq.), where, in
complaint, plaintiff charged defendants with prohibited personnel practices, unequal
treatment, harassment and discrimination on account of race and age, and plaintiff had
attached copy of EEOC disposition, in which EEOC concluded that plaintiff was not
discriminated against in violation of Title VII or ADEA. Houser v Rice (1993, WD La)
151 FRD 291.
State law breach-of-contract and promissory estoppel claims arising out of alleged age
discrimination in hiring will be heard by federal court having original jurisdiction over
ADEA (29 USCS 621 et seq.) claim under 28 USCS 1367, where state claims form
part of same case or controversy and evidence involved is same in scope and source as
that necessary for federal claim, because state claims are clearly supplemental to ADEA
claim, do not substantially predominate, and are not novel or complex. LaSorella v
Penrose Saint Francis Healthcare Sys. (1993, DC Colo) 818 F Supp 1413, 61 BNA FEP
Cas 1109, 8 BNA IER Cas 1211.
Although ICC has exclusive jurisdiction to approve mergers in railroad industry and to
prescribe applicable labor protective conditions, there is nothing in Interstate Commerce
Act which divests district courts of jurisdiction over disputes that do not directly
implicate those labor protective conditions; thus, plaintiffs, who claimed that they had
been discriminated against because of their age by railroad employer that had been
subject to ICC merger order, were not precluded by ICC's jurisdiction over matters
related to railroad mergers from bringing their ADEA claims in federal court. Adams v
Burlington N. R.R. (1993, DC Kan) 838 F Supp 1461, 63 BNA FEP Cas 679, 145 BNA
LRRM 2062, certif den (DC Kan) 1994 US Dist LEXIS 1197.
Footnotes
Footnote 30. 29 USCS 1331, discussed in 2134.
Footnote 31. Baldwin v Sears, Roebuck & Co. (1982, CA5) 557 F2d 458, 27 BNA FEP
Cas 1624, 28 CCH EPD 32436.
Footnote 33. Woodford v Kinney Shoe Corp. (1972, ND Ga) 7 BNA FEP Cas 114, 7
CCH EPD 9238.
Observation: Separate provisions in the ADEA govern federal employment suits.

See 2137.
Footnote 35. Fourth CircuitJacobi v High Point Label, Inc. (1977, MD NC) 442 F
Fifth CircuitBaldwin v Sears, Roebuck & co. (1982, CA5) 667 F2d 458, 27 BNA FEP
Cas 1624, 28 CCH EPD 32436.
Sixth CircuitChapman v Detroit (1985, CA6) 808 F2d 459, 42 BNA FEP Cas 1016, 42
CCH EPD 36778.
Eighth CircuitEagleburger v City of Springfield (1984, Mo App) 677 SW2d 914.
2137 Federal employment suits

View Entire Section
Go to Supplement
Any person aggrieved by age discrimination in Federal Government employment may
bring a civil action in any federal district court of competent jurisdiction. 36 The United
States Claims Court lacks jurisdiction over actions to enforce administrative remedial
orders resulting from age discrimination charges against the Federal Government, since
the district courts have exclusive jurisdiction over ADEA federal employment claims. 37
When a federal employee or an applicant for federal employment alleging an ADEA
violation has appealed to the Merit Systems Protection Board (MSPB) under the Civil
Service Reform Act, 38 any action for judicial review of the Board's decision is
governed by the same provisions that establish jurisdiction in federal district courts of
competent jurisdiction for federal employment suits brought under the ADEA. 39
Although the Federal Circuit has exclusive jurisdiction to review any MSPB final order
resolving issues unrelated to employment discrimination, it has no jurisdiction over
discrimination issues that are actionable under the federal discrimination laws. 40
Observation: It is reasonable to infer that as with mixed claims involving Title VII
claims, 41 the knowing election to proceed in the Federal Circuit by a federal
employee or an applicant for federal employment with a mixed claim that includes
alleged violations of the ADEA constitutes a waiver of the ADEA claim.
2137 ----Federal employment suits [SUPPLEMENT]
Case authorities:
Loss of consortium is derivative tort in that it only exists if defendant is also liable in tort
to spouse who is unable to provide consortium, and proof of underlying tort is necessary
element of action for loss of consortium; thus, district court has federal question
jurisdiction (28 USCS 1331) over loss of consortium action brought by wife of ADEA
plaintiff, because wife would not be able to recover unless she proves that defendant
employer is liable to her husband under ADEA, and she must prove violations of federal
law in order to prevail on her loss of consortium claim. Godby v Electrolux Corp. (1993,
ND Ga) 62 BNA FEP Cas 1147, 8 BNA IER Cas 1341.
Footnotes
Footnote 36. 29 USCS 633a(c).
Footnote 37. Dixon v United States (1989) 17 Cl Ct 73.
Footnote 39. 5 USCS 7703(b)(2); 29 USCS 633a(c).
1523.
Footnote 41. 2155.
d. Equal Pay Act Cases [2138, 2139]
2138 Suits against nonfederal employers

View Entire Section

Actions to recover remedies for violations of the Equal Pay Act may be maintained in
any federal or state court of competent jurisdiction. 42
Footnotes

View Entire Section
Actions to recover remedies for violations of the Equal Pay Act may be maintained
against any employer, including public agencies, in any federal or state court of
competent jurisdiction. 43
When a federal employee or an applicant for federal employment alleging an Equal Pay
Act violation has appealed to the Merit Systems Protection Board (MSPB) under the
Civil Service Reform Act, 44 any action for judicial review of the Board's decision is
governed by the same provisions that establish jurisdiction in federal or state courts of
competent jurisdiction for federal employment suits brought under the Equal Pay Act. 45
Although the Federal Circuit has exclusive jurisdiction to review any MSPB final order
resolving issues unrelated to employment discrimination, it has no jurisdiction over
discrimination issues that are actionable under the federal discrimination laws. 46
employee or an applicant for federal employment with a mixed claim involving alleged
violations of the Equal Pay Act constitutes a waiver of the Equal Pay Act claim.
Footnotes
Footnote 45. 5 USCS 7703(b)(2); 29 USCS 216(b).
1523.
Footnote 47. 2155.
e. Rehabilitation Act Cases [2140, 2141]
2140 Section 504

View Entire Section
The Rehabilitation Act of 1973 provides that the procedures set forth in Title VI of the
Civil Rights Act of 1964 48 are available to any person aggrieved by a violation of
504 of the Rehabilitation Act. 49 Although Title VI does not expressly confer
jurisdiction on any court, its provision denying states immunity from suit 50 for
violations of federal statutes prohibiting discrimination by recipients of federal financial
assistance, including violations of 504, presumes that jurisdiction over such suits is
vested in the federal courts. 51 Furthermore, the federal jurisdictional statute for civil
rights and elective franchise suits 52 has been held to be applicable to actions brought
under 504. 53
State courts share concurrent jurisdiction with federal courts over 504 actions, since
Congress did not explicitly or implicitly limit 504 actions to federal courts, and state
court jurisdiction is not incompatible with federal interests. 54
Footnotes
Footnote 48. 2142.
Footnote 50. As to immunity from suit, generally, see 2343 et seq. [first section
dealing with governmental immunity (i.e. C(5)] et seq.
Footnote 51. 42 USCS 2000d-7(a).
Footnote 53. Sherry v New York State Education Dept. (1979, WD NY) 479 F Supp
1328.
Footnote 54. Elek v Huntington Nat. Bank (1989, Ohio App) 50 BNA FEP Cas 1396,
affd 60 Ohio St 3d 135.
2141 Section 504
View Entire Section

Go to Supplement
The Rehabilitation Act of 1973 provides that the procedures set forth in Title VII for
federal employees' or applicants' complaints 55 are available to any employee or
applicant aggrieved by a violation of 501 of the Rehabilitation Act. 56 Thus,
jurisdiction over 501 cases is vested in the United States district courts and the courts
of places subject to the jurisdiction of the United States. 57
The United States Claims Court lacks jurisdiction over actions to enforce administrative
remedial orders resulting from handicap discrimination charges against the Federal
Government, since the district courts have exclusive jurisdiction over 501 claims. 58
When a federal employee or an applicant for federal employment alleging a 501
violation has appealed to the Merit Systems Protection Board (MSPB) under the Civil
Service Reform Act, 59 any action for judicial review of the Board's decision is
governed by the same provisions that establish jurisdiction in the United States district
courts and the courts of places subject to the jurisdiction of the United States for federal
employees' or applicants' actions brought under Title VII. 60
Although the Federal
Circuit has exclusive jurisdiction to review any MSPB final order resolving issues
unrelated to employment discrimination, it has no jurisdiction over discrimination issues
that are actionable under the federal discrimination laws. 61
employee or an applicant for federal employment with a mixed claim involving alleged
violations of 501 constitutes a waiver of the 501 claim.
Case authorities:
Persons who have mental retardation or developmental disabilities and who are
institutionalized have alleged injury in fact sufficient to invoke jurisdiction of Federal
District Court, pursuant to Art III of Federal Constitution, with respect to claims against
state under 29 USCS 794 where such persons allege that they have been and are being
denied community placement on account of their disabilities. Martin v Voinovich (1993,
SD Ohio) 840 F Supp 1175, 43 Soc Sec Rep Serv 409, 4 ADD 1240.
Comptroller General has no jurisdiction over substantive claims brought under
Rehabilitation Act. Lester J. ReschleyTransportation of Household Goods Incident to
TransferSubsequent Voluntary Transfer (1993) 72 Comp Gen 111.
Footnotes
Footnote 55. 2155.

Footnote 57. 42 USCS 2000e-5(f)(3) and 2000e-16(c).
Footnote 58. Dixon v United States (1989) 17 Cl Ct 73.
Footnote 60. 5 USCS 7703(b)(2); 42 USCS 2000e-5(f)(3) and 2000e-16(c).
1523.
When a federal employee prevailed before the MSPB on his handicap discrimination
claim and thereafter sought attorney's fees, he properly sought review of the MSPB's fee
decision in federal district court, rather than the Federal Circuit. The fact that the federal
employee had prevailed on the merits of his discrimination claim shaped his entitlement
to attorney's fees in accordance with standards under Title VII, which are civil rights
attorney's fee standards that district courts administer every day. These standards grow
owt of the dynamics of civil rights law enforcement and are markedly unlike the
standards for fee awards in nondiscrimination federal personnel cases, of which the
Federal Circuit, on review of the MSPB, has exclusive judicial cognizance. The
attorney's fees phase of a meritorious discrimination case was part of a claim on the
merits, and thus, the district court rather than the Federal Circuit had jurisdiction to
review that award. Kean v Stone (1991, CA3) 926 F2d 276, 55 BNA FEP Cas 294, 55
CCH EPD 40576, appeal after remand, costs/fees proceeding, remanded (CA3 Pa) 966
Footnote 62. 2155.
f. Under Other Federal Discrimination Laws [2142-2144]
2142 Title VI
View Entire Section
Although Title VI of the Civil Rights Act of 1964 does not expressly confer jurisdiction
on any court, its provision denying states immunity from suit 63 for violations of federal
statutes prohibiting discrimination by recipients of federal financial assistance presumes
that jurisdiction over such suits is vested in the federal courts. 64
Observation: Federal court jurisdiction over Title VI actions may also conceivably
be derived from the federal jurisdictional statute for federal question suits, 65 or from
the federal jurisdictional statute for civil rights and elective franchise suits. 66 These
provisions are discussed in greater detail in connection with suits brought under the
early civil rights acts. 67
Footnotes
Footnote 63. As to immunity from suit, generally, see 2343 et seq.
Footnote 67. 2133-2137.
2143 Title IX
View Entire Section
The Title VI provision denying states immunity from suit 68 for violations of federal
statutes prohibiting discrimination by recipients of federal financial assistance, including
violations of Title IX, presumes that jurisdiction over such suits is vested in the federal
courts. 69
Observation: Federal court jurisdiction over Title IX actions may also conceivably
be derived from the federal jurisdictional statute for federal question suits, 70 or from
the federal jurisdictional statute for civil rights and elective franchise suits. 71 These
provisions are discussed in greater detail in connection with suits brought under the
early civil rights acts. 72
However, Title IX has been held to afford no direct remedy to victims of employment
discrimination, since these are available under other federal discrimination laws designed
to make victims of employment discrimination whole. The remedies available under
Title IX, designed to eradicate discrimination in federally funded education programs or
institutions, are limited to administrative termination of federal funding, which
individuals may not pursue in district court, and to such private remedies as are
unavailable under other laws. 73
Observation: In essence, Storey holds that federal district courts have no subject
matter jurisdiction over employment discrimination claims arising under Title IX.
Footnotes
Footnote 68. As to immunity from suit, generally, see 2343 et seq.

Footnote 72. 2133-2137.
Footnote 73. Storey v Board of Regents (1985, WD Wisc) 604 F Supp 1200, 37 BNA
2144 Executive Order 11246

View Entire Section
Under Executive Order 11246, an enforcement action for temporary or permanent relief
may be brought by the Attorney General in the appropriate United States district court.
74
Federal court jurisdiction over third-party beneficiary claims of persons named in
conciliation agreements settling Executive Order 11246 claims may also be derived from
the federal jurisdictional statute for federal question suits (28 USCS 1331). 75
However, federal court jurisdiction depends on whether a conciliation agreement is an
enforceable contract. Thus, where the Office of Federal Contract Compliance Programs
(OFCCP) had voluntarily suspended its right to enforce a conciliation agreement pending
OFCCP review, the federal court had no jurisdiction over a third-party beneficiary's suit
to enforce it. 76
In addition, a federal court may assert federal question jurisdiction over a suit by a
government contractor seeking to enjoin agency efforts to terminate the contractor's
eligibility as a contractor. 77
Footnotes
Footnote 74. 41 CFR 60-1.26(e) and 60-1.26(e)(f).
Footnote 75. Eatmon v Bristol Steel & Iron Works, Inc. (1985, CA11) 769 F2d 1503, 38
Footnote 76. Terry v Northrop Worldwide Aircraft Services, Inc. (1985, CA11) 785 F2d
Footnote 77. Pan American World Airways, Inc. v Marshall (1977, SD NY) 439 F Supp
2. Removal [2145-2153]
a. Removal Based on Existence of Federal Question [2145-2149]
2145 Removal under 1441, generally

View Entire Section
An action brought in state court that raises a claim under the Federal Constitution,
treaties, or federal laws may be removed to federal court, regardless of the state
citizenship of the litigants. 78
When an action based on a federal question is removed
to district court, the court may hear any claim in the action, even if the state court did not
have jurisdiction over the claim. 79
Observation: The federal courts have discretion under the doctrine of pendent
jurisdiction to remand a properly removed case to state court when all federal law
claims in the action have been eliminated and only pendent state-law claims remain. 80
Footnotes
Practice References Removal of Actions from State Court to Federal Court. 6 Federal
Removal of Actions from State Courts. 32B Am Jur 2d, Federal Practice and
Procedure 2406 et seq.
Footnote 80. Carnegie-Mellon Univ v Cohill (1988) 484 US 343, 98 L Ed 2d 720, 108
S Ct 614, 45 BNA FEP Cas 1163, 2 BNA IER Cas 1473, 45 CCH EPD 37667.
39,201 et seq.
2146 Who can seek removal
View Entire Section

Go to Supplement
Defendants who meet the statutory requirements of 1441 82 may petition for removal
of a civil claim from state court to federal court. A removal petition is incomplete unless
all defendants who may properly join in have done so. 83
The requirement of inclusion of all defendants in a removal petition does not include
purely nominal defendants who have been served, 84 or nonserved, nonresident
defendants. 85
Furthermore, when a separate and independent claim is removed, only the defendants
named to that claim need join in the petition. 86
2146 ----Who can seek removal [SUPPLEMENT]
Practice Aids: Joinder of individual defendants in employment litigation: is removal
still possible?, 19 Emp Rel LJ 117 (1993).
Footnotes
Footnote 82. 2145.
Footnote 83. Bridgeport Education Asso. v Zinner (1976, DC Conn) 415 F Supp 715, 23
BNA FEP Cas 253; Grenchik v Mandel (1973, DC Md) 373 F Supp 1298.
As to pleading requirements where not all defendants have joined a removal petition, see
2152.
Footnote 84. Perrin v Walker (1974, ED Ill) 385 F Supp 945.
Footnote 85. Howard v George (1975, SD Ohio) 395 F Supp 1079.
Footnote 86. Reiken v Nationwide Leisure Corp. (1978, SD NY) 458 F Supp 179.
2147 Necessity of federal claim

View Entire Section

Removal is proper only if a federal court would have had original jurisdiction over claims
which arise under federal law. A claim does not arise under federal law when the federal
statute that is made an element of a state cause of action does not itself provide a right of
action. 87
For example, allegations that a California discrimination law was violated
by conduct that also violated Executive Order 11246 were not removable to federal court.
Since the Executive Order does not provide a private right of action, the allegations did
not arise under federal law. 88
Removal jurisdiction may not be sustained on a theory that the plaintiff has not advanced.
89
The employer has the burden of establishing that the action presents a federal
question removable to federal court. 90
Ordinarily, a defense arising under federal law does not confer removal jurisdiction.
However, if federal law has pre-empted the field, then a federal court may have removal
jurisdiction even though the complaint sets forth a claim under state law only. For
example, Congress intended to make claims relating to ERISA plans necessarily federal
in character and thus removable. 91 However, a claim that does not necessarily
embrace an ERISA cause of action is not removable. 92
The federal character of a suit must appear in the plaintiff's statement of the claim or
other paper from which removal jurisdiction may be ascertained. Thus, removal
jurisdiction cannot be based on a plaintiff's preemption argument raised in opposition to
an employer's defense, 93 on questions from an interrogating attorney, or on unsworn
attorney statements. 94
Although an ADEA cause of action arises under federal law, a plaintiff's failure to satisfy
the administrative prerequisites for suing under the ADEA prevents the removal of the
action to federal court. 95
A plaintiff who sues in state court and is the subject of a federal counter-claim may not
remove, since only a defendant may remove. 96
Footnotes
Footnote 87. Merrell Dow Pharmaceuticals, Inc. v Thompson (1986) 478 US 804, 92 L
Ed 2d 650, 106 S Ct 3229.
Footnote 88. Utley v Varian Associates, Inc. (1987, CA9) 811 F2d 1279, 43 BNA FEP
Footnote 89. Merrell Dow Pharmaceuticals, Inc. v Thompson (1986) 478 US 804, 92 L
Ed 2d 650, 106 S Ct 3229.
Footnote 90. Van Camp v AT&T Information Services (1992, CA6) 963 F2d 119, 15
Footnote 91. Metropolitan Life Ins. Co. v Taylor (1987) 481 US 58, 95 L Ed 2d 55, 107
S Ct 1542, 8 EBC 1417.
An employee's sex and age discrimination claims under state law were substantially
related to an employee benefit plan under ERISA because the claims could not be
resolved without consideration of the impact of a retirement and benefit agreement
entered into by the employee and the employer pursuant to the employer's pension plan.
Therefore the claims were removable to federal court. Van Camp v AT&T Information
Services (1992, CA6) 963 F2d 119, 15 EBC 1366, 58 BNA FEP Cas 1124, 58 CCH EPD
41445.
Footnote 92. Fillmore v Bank of America, N.T. & S.A. (1991, ND Cal) 1991 US Dist
LEXIS 6640, wherein a plaintiff's complaint that only invoked ERISA preemption as a
defense to the employer's affirmative defense was not removable.
Footnote 93. Papadoupoulos v UNC Assoc., Inc. (1991, DC Mass) 760 F Supp 243, 55
BNA FEP Cas 1234.
Footnote 94. Fillmore v Bank of America, N.T. & S.A. (1991, ND Cal) 1991 US Dist
LEXIS 6640.
Footnote 95. McDougall v Victory Markets, Inc. (1990, ND NY) 1990 US Dist LEXIS
1093.
Footnote 96. Nolan v Otis Elevator Co. (1982, DC NJ) 560 F Supp 119, 32 BNA FEP
Cas 802, 33 CCH EPD 34124.
2148 Removal of actions including both removable and nonremovable claims

View Entire Section
When a separate and independent claim over which a federal district court has original
jurisdiction is joined in state court with a nonremovable claim, the court may accept the
entire case for resolution, or remand all matters in which state law predominates. 97 A
removable claim is separate and independent from a nonremovable claim if it involves a
different injury and a different set of facts. 98
Footnotes
Footnote 98. Palser v Burlington N.R. Co. (1988, ED Mo) 698 F Supp 793.
2149 Removal rights where plaintiff asserts only state-law claim

View Entire Section
Plaintiffs who have sued in state court either recognize that they have no federal claim or
have chosen not to assert one. Thus, a plaintiff has the absolute right to shape his claim
as he chooses, unless the basis of his claim is preempted by federal legislation.
Consequently, a plaintiff who chose to assert his rights solely under state law,
disregarding the protections afforded by Title VII, could not be required by the defendant
to assert that claim in federal court, 99 unless the basis of his claims fell within the
exclusive remedy provisions of a federal law, in which case the action was properly
removed. 1
Where the elements of state- law claims are not virtually identical to purported federal
claims, removal jurisdiction is not available. 2
Footnotes
Footnote 99. Baker v Durkee Foods (1982, ND Ill) 542 F Supp 37, 32 BNA FEP Cas
114, 33 CCH EPD 34035.
A suit alleging only state-law claims of assault and battery and intentional infliction of
emotional distress could not be removed to federal court when those claims were not
preempted by 301 of the Labor-Management Relations Act. Galvez v Kuhn (1991,
CA9) 933 F2d 773, 137 BNA LRRM 2521.
Claims brought in state court without reference to the Occupational Safety and Health
Act were improperly removed to federal court where the plaintiffs asserted that they did
not intend to bring suit under OSHA but rather to use a complaint filed with OSHA as a
predicate for a retaliatory discharge claim. The plaintiffs did not cite OSHA in their
complaint, and there is a serious question whether there is a private right of action under
OSHA. Lengel v Fisher-Price, Inc. (1991, WD NY) 1991 US Dist LEXIS 15774.

Footnote 1. Tingey v Pixley-Richards West, Inc. (1992, CA9) 953 F2d 1124, 92 CDOS
310, 92 Daily Journal DAR 392, 14 EBC 2445, costs/fees proceeding (CA9) 958 F2d
908, 92 CDOS 2043, 92 Daily Journal DAR 3204, wherein the basis of the plaintiff's
claims fell within the exclusive remedy provisions of ERISA.
Footnote 2. Wood v Vermont Ins. Management, Inc. (1990, DC Vt) 749 F Supp 558, 54
BNA FEP Cas 510, 5 BNA IER Cas 1662, involving a sexual harassment claim.
b. Removal of Civil Rights Actions [2150, 2151]
2150 Removal under 1443

View Entire Section
A separate statutory provision exists for the removal of civil actions commenced in state
court in which a denial of equal civil rights has been alleged. 3
Under this statute, the person seeking removal must rely on a specific civil right granted
by federal law and stated in terms of racial equality. It is insufficient to claim that an
action will violate general constitutional or statutory rights, or that the action will violate
statutes that do not specifically protect against racial discrimination. The petitioner also
must show that the right would be denied in state court or could not be enforced there.
Normally, the denial must be evident from a formal expression of state law, rather than
being first made clear at trial. 4
Observaton: Since state and federal courts exercise concurrent jurisdiction over Title
VII claims, 5 such claims do not meet the statutory requirement of being incapable
of enforcement in state court. Accordingly, they may not be removed to federal court
under 28 USCS 1443.
Footnotes
Footnote 4. Johnson v Mississippi (1975) 421 US 213, 44 L Ed 2d 121, 95 S Ct 1591.
Footnote 5. Yellow Freight System, Inc. v Donnelly (1990) 494 US 820, 108 L Ed 2d
834, 110 S Ct 1566, 52 BNA FEP Cas 875, 53 CCH EPD 39825, discussed at 2130.
2151 --Actions under the early civil rights acts

View Entire Section
Several courts, in cases not involving job discrimination issues, have held that 1981
qualifies as a specific federal statute providing for civil rights stated in terms of racial
equality as required by 1443. 6
Whether 1983 meets the removal statute's requirements is not clear. Despite its obvious
protection of civil rights, the Supreme Court has held that 1983 does not specifically
provide for equal civil rights within the meaning of 1443, 7 at least where 1983 has
not been invoked to vindicate a racially motivated denial of equal protection. 8
It has
been noted that 1983 might qualify when it is being used specifically to vindicate an
alleged denial of equal protection of the laws on racial grounds, as distinguished from
vindication of rights generally protected by the Constitution. 9
Observation: The scope of 1443 removal is much more restrictive than removal
under 1441 10 since, under 1443, a person seeking removal must show some
denial of equality under state law on the basis of race. Thus, suits alleging other
prohibited discrimination, such as sex and age discrimination, may not be removed to
federal court under this provision. Removal must instead be based on 1441.
Footnotes
Footnote 6. New York v Kakawana (1976, WD NY) 407 F Supp 411; Louisiana v
London (1971, ED La) 335 F Supp 585.
Footnote 7. Georgia v Rachel (1966) 384 US 780, 16 L Ed 2d 925, 86 S Ct 1783.
Footnote 8. New York v Galamison (1965,CA2) 342 F2d 255, cert den 380 US 977, 14
L Ed 2d 272, 85 S Ct 1342.
Footnote 9. Armeno v Bridgport Civil Service Com. (1978, DC Conn) 446 F Supp 553,
19 BNA FEP Cas 111.
Footnote 10. 2145.
c. Procedures for Removal [2152, 2153]
2152 Filing and notice requirements

View Entire Section
Defendants seeking to remove a civil action from state court must file in federal district
court a notice of removal containing a short and plain statement of the facts that entitle
them to removal together with a copy of all process, pleadings, and orders served upon
them in the action. 11
Observation: As a general rule, all defendants must join in a removal petition.

However, if a suit involves multiple defendants and one or more do not join in the
petition for removal, the petition should expressly indicate the reason for the failure to
join. Courts may in their discretion allow parties to amend their defective removal
petitions even after the time limits. 12
Promptly after the filing of the notice of removal, the defendant must give written notice
to all adverse parties and file a copy of the petition with the clerk of the state court. The
state court then can proceed no further unless and until the federal court remands the
case. 13
Footnotes
Footnote 12. Carpenter v Ford Motor Co. (1990, ND ILL) 1990 US Dist LEXIS 15843.
2153 Time limitations on filing

View Entire Section

A petition for removal must be filed within 30 days after the defendant receives a copy of
the initial pleading. However, if the case stated by the initial pleading is not removable, a
petition for removal may be filed within 30 days after receipt by the defendant of
information from which it may first be ascertained that the case is one which is or has
become removable. 14
It has been held that the 30-day filing period for filing the
notice begins on the date that a defendant has solid and unambiguous information that the
case is removable, even if that information is solely within its own possession, 15 but
other courts have disagreed, and concluded that the information that a case is removable
must come from a source other than the defendant. 16
In situations where there are multiple defendants served on different days, individual
defendants have 30 days from the time they are served to join in an otherwise valid
removal petition. 17
The EEOC may remove a claim filed against it to federal court without the consent of
any other defendants. 18
Footnotes
A petition for removal was untimely when it was not filed within 30 days after receipt of
the complaint, despite the defendants' contention that the case became removable only
when the plaintiff stated in her deposition that the employer had violated federal statutes.
Removability was ascertainable from facts alleged on the face of the complaint, and this
was sufficient to begin the running of the time period for removal. Krantz v Boneck
(1984, DC Nev) 599 F Supp 785, 36 BNA FEP Cas 1042.
Footnote 15. Holston v Carolina Freight Carriers Corp (1991, CA6) 1991 US App LEXIS
14129 (unpublished).
Footnote 16. Camden Industries Co. v Carpenters Local Union (1965, CA1) 353 F2d 178,
60 BNA FEP Cas 2525, 52 CCH LC 16782, Heafitz v Interfirst Bank of Dallas (1989,
SD NY) 711 F Supp 92.
Footnote 17. McKinney v Board of Trustees of Maryland Community College (1992,
CA4) 955 F2d 924.
Footnote 18. Teters v Health Services Div. (1981, CD Cal) 28 CCH EPD 32515.
3. Venue [2154-2172]
2154 Generally
View Entire Section
Go to Supplement
The proper federal district court in which to sue for violations of job discrimination and
other federal employment practices statutes may be specified in the statutes themselves.
If a particular statute is silent on where to sue, general venue provisions in the Judicial
Code 19 govern.
With the exception of Title VII, 20 the Rehabilitation Act of 1973, 21 the Jury System
Improvements Act, 22 and Title VI of the Civil Rights Act of 1964, 23 the federal job
discrimination laws do not give specific guidance as to the appropriate federal district
court in which to bring suit. Accordingly, the proper location for a suit is usually
governed by the district court venue provisions contained in the Judicial Code. 24
The most important of the Judicial Code sections specifies that a civil action in which
jurisdiction is not founded solely on diversity of citizenship may be brought only in the
judicial district where any defendant resides if all defendants reside in the same state,
where a substantial part of the events or omissions giving rise to the claim occurred,
where a substantial part of the property that is the subject of the action is situated, or
where any defendant may be found if there is no district where the action may otherwise
be brought. 25 A corporation may be sued in any judicial district in which it is
incorporated, licensed to do business, or doing business. That district is the corporation's
"residence" for venue purposes. 26
Other pertinent Judicial Code provisions set forth procedures for:
changing venue to any other district in which the suit could have been brought in the
interest of justice and for the convenience of parties or witnesses; 27
dismissing a case for improper venue, or transferring it to a district in which it could
have been brought in the interest of justice; 28
cure or waiver of defects in venue. 29
Case authorities:
Action brought under both Title VII (42 USCS 2000e et seq.) and ADEA (29 USCS
621 et seq.) in Eastern District of Pennsylvania, where plaintiff resided at time of
action, was transferred to Southern District of New York, where plaintiff had been
employed, even though venue was proper in Pennsylvania for ADEA claims (but not
Title VII claims), because interests of justice required that case be transferred to district
where venue was proper for all claims. Kravitz v Institute for Int'l Research (1993, ED
Pa) 63 BNA FEP Cas 444.
28 USCS 1404(a), which provides that civil action may be transferred for convenience
of parties and witnesses, in interests of justice, applies to ADEA actions. Bell v K Mart
Corp. (1994, ND Ga) 848 F Supp 996, 64 BNA FEP Cas 335, 64 CCH EPD 43038.
Footnotes
Law Reviews: Exploring a Second Level of Parity: Suggestions for Developing an
Analytical Framework for Forum Selection in Employment Discrimination Litigation.
44 Vand. L. Rev. 641 (1991).
Footnote 20. 42 USCS 2000e-5(f)(3), discussed at 2155 et seq.
Footnote 21. 2162.
Footnote 22. 2165.
Footnote 23. 2164.
Practice references: Venue, 1 Federal Procedure, L Ed, Access to District Courts
1:624 et seq.
Practice references Change of venue, 1 Federal Procedure, L Ed, Access to District
Courts 1:715 et seq.
39,201 et seq.
b. Title VII Cases [2155-2159]
2155 Generally
View Entire Section
Actions under Title VII may be brought in:
any judicial district in the state in which an unlawful employment practice is alleged to
have occurred; 31
the judicial district in which the relevant employment records are maintained and
administered; 32
the judicial district in which the aggrieved person would have worked but for the
unlawful discrimination; 33
the judicial district in which the respondent has its principal office, if the respondent is
not found within any of the three districts listed above. 34
Venue in Title VII actions is limited to the alternatives listed above. It may not be
broadened by reading into it the general corporate venue statute, 35
although the
statutory provisions regarding change of venue 36 or the cure or waiver of venue defects
by district courts 37 do apply to suits brought under Title VII. 38 In addition, the venue
provisions of Title VII have been held to apply as equally to intervening plaintiffs 39 as
to original plaintiffs. 40
Footnotes
Footnote 31. 2156.
Footnote 32. 2157.
Footnote 33. 2158.
Footnote 34. 2159.
Footnote 35. Stebbins v State Farm Mut. Auto. Ins. Co. (1969) 134 App DC 193, 413
F2d 1100, 1 BNA FEP Cas 745, 71 BNA LRRM 2283, 2 CCH EPD 10005, 60 CCH
LC 9247, cert den 396 US 895, 24 L Ed 2d 173, 90 S Ct 194, 2 BNA FEP Cas 388, 2
CCH EPD 10163, 62 CCH LC 9392; Dubnick v Firestone Tire & Rubber Co. (1973,
ED NY) 355 F Supp 138, 5 BNA FEP Cas 782, 5 CCH EPD 8574.
The general corporate venue statute is discussed at 2154.

Footnote 38. EEOC v Parish Water Work's Co. (1976, DC La) 415 F Supp 124, 12 BNA
FEP Cas 1431, 12 CCH EPD 11015.
Footnote 40. Allen v Isaac (1983, ND Ill) 99 FRD 45, 37 FR Serv 2d 351, amd (ND Ill)
100 FRD 373.
2156 District in which discrimination occurred

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Go to Supplement
One of the appropriate places to file a Title VII suit 41 is a federal district court in the
state in which the alleged unlawful employment practice is alleged to have been
committed. 42 Under this provision, an action may be brought in any judicial district in
the state in which the unlawful employment practice is alleged to have been committed,
43 even though the other venue alternatives enumerated by the statute refer to specific
judicial districts. 44
In determining where unlawful employment practices occurred, proper venue has been
found in the district where the decisions were made, even though the decisions concerned
employment assignments in other districts. 45 Venue was also proper in the state of a
parent corporation's headquarters where it was alleged that the parent established and
implemented discriminatory practices within itself and its subsidiaries. 46 And venue
was transferred properly from Illinois to California, when the employer was a
California-based corporation and both the meeting at which it was decided to close the
plaintiff's territory and the decision as to his new sales location were made in Calfornia,
and these events culminated in the dispute between him and the employer that eventually
led to his constructive termination. 47
Where a Title VII claim stated that the actions on which it was based took place in
Oklahoma, venue was not proper in Kansas simply because the plaintiff had been the
victim of similar employment practices when he was employed by the defendant in
Kansas. 48
2156 ----District in which discrimination occurred [SUPPLEMENT]
Case authorities:
Venue in Title VII action was proper in Eastern District of Virginia, rather than Western
District of New York (plaintiff's residence), or Southern District of New York
(employer's principal place of business), since Virginia was where discriminatory
practice took place, it was district where plaintiff would have been employed but for
employer's alleged discriminatory action, and it was where personnel and other
employment records relevant to alleged discriminatory practice were maintained.
Minnette v Time Warner (1993, CA2 NY) 62 BNA FEP Cas 385.
Footnotes
Footnote 41. 2155.
Footnote 43. Aitkin v Harcourt Brace Jovanovich, Inc. (1982, WD NY) 543 F Supp 987,
29 BNA FEP Cas 715; Prather v Raymond Constr. Co. (1983, ND Ga) 570 F Supp 278.
Footnote 44. Aitkin v Harcourt Brace Jovanovich, Inc. (1982, WD NY) 543 F Supp 987,
29 BNA FEP Cas 715.
Footnote 45. Hayes v RCA Service Co. (1982, DC Dist Col) 546 F Supp 661, 31 BNA
FEP Cas 246.
Footnote 46. Hoffman v United Telecommunications, Inc. (1983, DC Kan) 575 F Supp
1463, 35 BNA FEP Cas 1215.
Footnote 47. Clarke v Loma Linda Foods, Inc. (1991, CA9 Cal) 1991 US App LEXIS
11608.
Footnote 48. Phoenix v Williams Pape Line Co. (1988, DC Kan) 1988 US Dist LEXIS
8010.
2157 District in which employment records are kept

View Entire Section
One of the appropriate places to file a Title VII suit 49 is the federal district court for the
district in which the employment records relevant to the alleged unlawful employment
practice are maintained and administered. 50 Venue in Georgia was proper where the
plaintiff resided in Mississippi and the alleged discrimination occurred in Alaska, but the
employer's records were located in Georgia. 51 However, records detailing the
agreement by which the defendant succeeded to the plaintiff's former employer's business
were not "employment records" within the meaning of the statute. 52
Footnotes
Footnote 49. 2155.

Venue was proper in a federal district court for the appropriate district in Georgia or
Missouri, and not in the District of Columbia as claimed by a plaintiff, where the
plaintiff's personnel files had been maintained in Atlanta and then transferred to the
Federal Records Center in St. Louis. Although the records had been transferred to the
District of Columbia for the court hearing on this venue claim, the plaintiff never alleged
that they had been either administered or maintained there. In rejecting the plaintiff's
venue claim, the court stated that the records transfer for this hearing did not constitute a
"transfer of records" for purposes of venue. In addition, the court noted that a contrary
holding would have meant that a plaintiff could bring a Title VII action in any district
court in the country. Sconion v Thomas (1984, DC Dist Col) 603 F Supp 66, 36 BNA
FEP Cas 618.
A former federal employee's Title VII and ADEA case was transferred from the District
of Columbia district court to the district court in Maryland based on the agency's affidavit
indicating that the plaintiff's employment records were maintained and administered in
Maryland. The court rejected the plaintiff's arguments that the District of Columbia
mailing address on correspondence she received from the agency was determinative of
venue. Hill v Secretary (1985, DC Dist Col) 39 BNA FEP Cas 607.
The fact that copies of a plaintiff's employment records were available in the judicial
district where she brought suit did not satisfy Title VII's venue requirement. Venue
properly lies only in the judicial district in which the complete master set of employment
records is maintained and administered. Washington v General Electric Corp. (1988, DC
Dist Col) 686 F Supp 361, 47 BNA FEP Cas 1225, 49 CCH EPD 38782, later
proceeding (WD Va) 1990 US Dist LEXIS 19771.
Footnote 51. Morrow v Federal Aviation Admin. (1983, SD Miss) 573 F Supp 52.
Footnote 52. Richman v Merrill Lynch, Pierce, Fenner & Smith, Inc. (1977, SD NY) 441
2158 District in which victim of discrimination would have worked

View Entire Section
One of the appropriate places to file a Title VII suit 53 is the federal district court for the
district in which the aggrieved person would have worked but for the alleged unlawful
employment practice. 54 Venue properly lay in New York where, even though the
plaintiff was enrolled in a training program in Kansas at the time of his discharge, other
trainees were assigned to New York after completing the program. 55
Footnotes
Footnote 53. 2155.
Footnote 55. Matthews v Trans World Airlines, Inc. (1979, SD NY) 478 F Supp 1244, 21
2159 District containing respondent's principal office

View Entire Section
Title VII's venue provision specifies that, if the defendant cannot be "found" in one of the
three federal districts that are otherwise appropriate for suit, 56 the action may be filed
in the federal district court for the district containing the defendant's principal office. 57
However, the statutory provision can be invoked only if jurisdiction cannot be obtained
in any of the other three named districts. 58
A corporation is "found" in a particular district for venue purposes if it is subject to
personal jurisdiction in that district. 59 However, Title VII's "principal office" language
is significantly more restrictive than the language regarding judicial districts in which
businesses are incorporated or doing business contained in the general venue statute. 60
Consequently, the use of a mailing address in the district in which suit is improperly filed
does not estop the defendant from objecting. 61 Also, an employer successfully
persuaded a district court to move a trial on a Title VII charge that included some state
claims from one city in a division of a federal district court to another city. The change
was appropriate not only because it was closer to the employer's work site, but also
because it was closer to the location of a majority of the anticipated witnesses. Thus, the
change of venue served justice by reducing the inconvenience to both the parties and the
witnesses. 62
For the purposes of the general Judicial Code provisions relating to change of venue and
dismissal or transfer of cases, 63 the "district in which the action might have been
brought" includes the district in which the defendant has its principal office. 64
Footnotes
Footnote 56. 2155-2158.
Footnote 57. 42 USCS 2000e-5(f)(3), 2000e-16(c).
LC 9247, 13 FR Serv 2d 1094, cert den 396 US 895, 24 L Ed 2d 173, 90 S Ct 194, 2
Footnote 59. Ford v Valmac Industries, Inc. (1974, CA10) 494 F2d 330, 7 BNA FEP Cas
781, 7 CCH EPD 9254; Stith v Manor Baking Co. (1976, WD Mo) 418 F Supp 150, 15
BNA FEP Cas 515.
LC 9247, 13 FR Serv 2d 1094, cert den 396 US 895, 24 L Ed 2d 173, 90 S Ct 194, 2
The general venue statute is discussed at 2154.
Footnote 61. Donnell v National Guard Bureau (1983, DC Dist Col) 568 F Supp 93, 32
BNA FEP Cas 589.
Footnote 62. Matthews v North Slope Borough (1986, DC Alaska) 646 F Supp 943, 43
BNA FEP Cas 327, later proceeding (DC Alaska) 649 F Supp 1571, 43 BNA FEP Cas
330, 43 CCH EPD 37058.
Footnote 63. 28 USCS 1404 and 1406.
c. Cases Under Other Laws [2160-2167]
2160 The early civil rights acts

View Entire Section
Since there is no special venue statute for civil rights actions, the general venue statute
for district courts 65 controls job discrimination actions under 1981, 66 1983, 67
and 1985(3). An action based on an alleged conspiracy within the meaning of 1985(3)
may be brought in the district where the conspiracy was formed or in any district where
an overt act occurred. 68
Footnotes
Footnote 65. 28 USCS 1391(b), discussed at 2154.
Footnote 66. Stith v Manor Baking Co. (1976, WD Mo) 418 F Supp 150, 15 BNA FEP
Cas 515.
Footnote 67. Kohl Industrial Park Co. v County of Rockland (1983, CA2) 710 F2d 895.
Footnote 68. Jones v Bales (1972, DC Ga) 58 FRD 453, affd (CA5) 480 F2d 805.
2161 The ADEA

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Go to Supplement
The Age Discrimination in Employment Act (ADEA) does not contain a special venue
provision. Rather, it refers to actions in "any court of competent jurisdiction," 69 and
incorporates 70 Fair Labor Standards Act (FLSA), procedural provisions that
themselves refer to actions in courts "of competent jurisdiction," 71 or just to suits in
district court. 72
Thus, the general venue provision for federal district courts 73 applies in ADEA cases.
In most such cases, where the injury occurred is determinative for purposes of
determining where the claim arose. In ADEA suits, the injury typically occurs in the
district in which the plaintiff lost, or was unable to obtain, employment. 74
2161 ----The ADEA [SUPPLEMENT]
Case authorities:
Although venue for ADEA (29 USCS 621 et seq.) claim in action which alleged
violations of both Title VII (42 USCS 2000e et seq.) and ADEA was proper in district
where plaintiff resided and filed suit, such district was not proper for Title VII claim;
consequently, in interest of justice and judicial economy, court transferred entire action to
district where defendant had principal office, which was only appropriate venue for Title
VII claim. Worthy v Aspin (1994, WD Pa) 64 BNA FEP Cas 65.
Footnotes
Footnote 69. 29 USCS 626(c) and 633a(c).
Footnote 71. 29 USCS 216(b), (c).
Footnote 74. Quinn v Bowmar Pub. Co. (1978, DC Md) 445 F Supp 780, 18 BNA FEP
Cas 1468.
The Eleventh Circuit agrees that the general venue statute governs venue for ADEA
cases. The venue provision for Title VII is not applicable by analogy. Rebar v Marsh
(1992, CA11 Fla) 959 F2d 216, 58 BNA FEP Cas 1105, 58 CCH EPD 41439.
2162 The Rehabilitation Act

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Actions under 504 of the Rehabilitation Act of 1973 are governed by the procedures of
Title VI of the Civil Rights Act of 1964 (42 USCS 2000d et seq.). 75 Accordingly,
venue requirements for 504 actions are governed by the statutory provisions dealing
with venue for Title VI actions. 76 In contrast, Title VII provisions 77 govern venue
for actions against the Federal Government for violations of the Rehabilitation Act of
1973 (29 USCS 501). 78 A separate venue statute, the Mandamus and Venue Statute
of 1962, controls venue in actions for mandamus against officers of the United States. 79
2162 ----The Rehabilitation Act [SUPPLEMENT]
Case authorities:
In action alleging that state police department's pre-employment vision requirements
constituted disability discrimination in violation of 504 of Rehabilitation Act (29 USCS
794), department's motion to dismiss or transfer for lack of venue is denied, even
though department headquarters are at state capital in another district and implementation
of its vision impairment policies occurred there, as did decision to reject plaintiff's
employment application, where plaintiff alleged events sufficiently substantial for venue
to be proper under 28 USCS 1391(b)(2) in instant district, including submission of his
application, taking of test, interview process, and receipt of all correspondence, and
where department had functioning office in district which would ease any inconvenience.
Wilson v Pennsylvania State Police Dep't (1995, ED Pa) 9 ADD 527, 4 AD Cas 396.
Footnotes
Footnote 76. 2164.

View Entire Section

Similar to the ADEA, 80 the federal Equal Pay Act (EPA) does not contain a special
venue provision, but simply incorporates FLSA procedural provisions. 81 Thus, the
general venue provision for federal district courts 82 applies in EPA cases. 83
Footnotes
Footnote 80. 2161.
Footnote 82. 28 USCS 1391(b), discussed at 2154.
Footnote 83. Turbeville v Casey (1981, DC Dist Col) 525 F Supp 1070, 28 BNA FEP
Cas 1832.
Venue in sex wage cases filed under both the EPA and Title VII is discussed in 2169.
2164 Title VI of the Civil Rights Act of 1964

View Entire Section
Under Title VI of the Civil Rights Act of 1964 84 venue rests under the Administrative
Procedures Act 85 for the judicial review of a federal agency's termination of, refusal to
grant, or refusal to continue federal financial assistance to a program or activity receiving
federal financial assistance on the grounds of noncompliance with Title VI's
nondiscrimination requirements (42 USCS 2000d-1). 86 Otherwise, Title VI does not
contain a special venue statute and the general venue statute for district courts 87
applies. However, a separate venue statute, the Mandamus and Venue Statute of 1962,
controls venue in actions for mandamus against officers of the United States. 88
Footnotes
Footnote 87. 2154.
2165 Jury System Improvements Act

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Go to Supplement
Under the federal Jury System Improvements Act, venue is in the United States District
Court for the district in which the employer maintains a place of business. 89
2165 ----Jury System Improvements Act [SUPPLEMENT]
Case authorities:
Demoted securities sales producer cannot pursue claim under 28 USCS 1875, even
though he blames failure to meet annual production quota, which was reason for
demotion, on 13 days of work he missed while serving on federal grand jury, where he
already arbitrated dispute, as required, and lost, because 1875(d)(1) provision for
appointment of counsel by federal district court does not lead to conclusion that claims
under statute are nonarbitrable. McNulty v Prudential-Bache Sec. (1994, ED NY) 871 F
Footnotes
2166 Federal migrant farm workers' statute

View Entire Section
Under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 90 a farm
worker may bring an action in the district where he resides and where the agreement was
entered into and where performance began. To otherwise require the plaintiff to
prosecute the action in a District Court where the breach of the agreement occurred
would impose an intolerable financial burden, affecting the plaintiff's desire and ability to
vindicate statutorily created rights.
Since the action is not based solely on diversity of citizenship, it must be brought in the
judicial district where all the defendants reside, or where the claim arose. However, for
venue purposes, a corporation is regarded as the resident of any judicial district in which
it is incorporated to do business or doing business. 91
Footnotes
Footnote 91. Gurrola v Griffin & Brand Sales Agency, Inc. (1980, SD Tex) 524 F Supp
115.
2167 The Employee Polygraph Protection Act

View Entire Section
Venue for private suits under the Employee Polygraph Protection Act (EPPA) is in any
federal or state court of competent jurisdiction. 92 Federal District Courts have
jurisdiction of suits brought by the Secretary of Labor for injunctive relief under the
EPPA, 93 and for suits by the Secretary seeking subpoena enforcement, 94 or
enforcement of a final order of the Secretary or a court concerning unpaid civil penalties
brought by the Attorney General. 95
Footnotes
Footnote 95. 29 CFR 801.40(a)(3).
d. Cases Involving More Than One Statute [2168-2172]
2168 Generally
View Entire Section
When suits combine actions under more than one statute, venue must generally be
established for each cause of action. 96 However, under the doctrine of pendent venue,
this rule has been relaxed in limited circumstances, such as where the proofs and parties
are the same for the various causes of action. 97 Although no clear theory of pendent
venue has yet emerged, and the doctrine is wholly discretionary, pendent venue has been
used sporadically by courts to retain control over transactionally related claims. The case
for pendent venue is strongest when the causes of action require similar proofs,
witnesses, and records. 98
Pendent venue was denied where each claim alleged discriminatory conduct against a
different protected class, even though the claims were based on the conduct of a single
supervisor. 99
If one of the causes of action can be considered a principal one and the others secondary,
proper venue must be established for the principal cause of action, particularly if the
principal cause of action is governed by a narrower venue provision than the secondary
causes of action. 1
Footnotes
Footnote 96. Washington v General Electric Corp. (1988, DC Dist Col) 686 F Supp 361,
FEP Cas 246.
Footnote 98. McManus v Washington Gas Light Co. (1991, DC Dist Col) 1991 US Dist
LEXIS 14539.
Footnote 99. Archuleta v Sullivan (1989, DC Dist Col) 725 F Supp 602, 51 BNA FEP
Cas 873, transferring the plaintiff's Title VII claim against her federal employer was
transferred to the district in which she worked for the employer, where the unlawful
practices allegedly occurred, and where all of her employment records were located, but
retaining jurisdiction over her claims under the ADEA and the Civil Service Reform Act
were not transferred, because the place where the defendant resided was not the
defendant's personal residence but his official residence, that is, where his official duties
were performed.
FEP Cas 246.
Caution: A court may simply decline to determine which of a plaintiff's claims is the
principal one. McManus v Washington Gas Light Co. (1991, DC Dist Col) 1991 US
Dist LEXIS 14539.
2169 Title VII and Equal Pay Act

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Go to Supplement
In a sex wage discrimination action brought under both the Equal Pay Act and Title VII,
the venue provisions of Title VII govern if the case involves not merely a question of
equal pay for equal work, but other employment issues such as hiring, promotion, and
training. 2
Conversely, in a case brought by female flight attendants who were allegedly paid less
than male flight attendants, the principal cause of action in the suit was for past due and
future wages that were claimed under the Equal Pay Act. Therefore, the general venue
provisions for federal district courts took precedence over the Title VII venue provision.
3
2169 ----Title VII and Equal Pay Act [SUPPLEMENT]
Case authorities:
District court had subject matter jurisdiction over action brought by employer which
sought declaration that it did not discriminate against employee in violation of Title VII
(42 USCS 2000e et seq.) or Equal Pay Act (29 USCS 206), since action presented
federal question (i.e. what rights employee may have against employer under statutes).
EMC Corp. v Roland (1996, DC Mass) 69 BNA FEP Cas 1244.
Footnotes
Footnote 2. Turbeville v Casey (1981, DC Dist Col) 525 F Supp 1070, 28 BNA FEP Cas
1832.
General venue provisions are discussed at 2154. Venue in pure sex-wage
discrimination cases is discussed at 2163.
2170 Title VII and Section 1981

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Go to Supplement
In suits combining Title VII and 1981 claims, the Title VII cause is considered the
principal one for venue purposes. Were the Title VII venue provisions not given priority,
they could effectively be avoided by using a companion cause of action under 1981 as a
basis for venue under the doctrine of pendent venue. 4
2170 ----Title VII and Section 1981 [SUPPLEMENT]

Case authorities:
Jury verdict for defendant in disparate treatment claim under 42 USCS 1981 did not
estop district court from ruling for plaintiff on Title VII disparate impact claim. Melendez
v Illinois Bell Tel. Co. (1996, CA7 Ill) 79 F3d 661, 70 BNA FEP Cas 589, 67 CCH EPD
43996, reh, en banc, den (1996, CA7 Ill) 1996 US App LEXIS 9838.
Footnotes
FEP Cas 246.
Venue in pure 1981 cases is discussed in 2375.
2171 Title VII and Section 1985

View Entire Section
In an action involving Title VII and 1985(3) claims, the court applied Title VII venue
requirements rather than general venue requirements applicable to 1985. 5
Footnotes
Footnote 5. McManus v Washington Gas Light Co. (1991, DC Dist Col) 1991 US Dist
LEXIS 14539, noting that the exercise of a judge-made exception to the Title VII venue
requirements would be inappropriate because the plaintiffs could not hang their Title VII
claims on their other causes of action.
2172 Title VII and ADEA

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Go to Supplement
In employment discrimination cases brought under both Title VII and the ADEA, Title
VII is considered to be the principal cause of action. Thus, where venue lay in different
judicial districts for Title VII and ADEA claims filed in one action, the action was
transferred to the district where venue lay under Title VII. 6
2172 ----Title VII and ADEA [SUPPLEMENT]

Case authorities:
Action brought under both Title VII (42 USCS 2000e et seq.) and ADEA (29 USCS
621 et seq.) in Eastern District of Pennsylvania, where plaintiff resided at time of
action, was transferred to Southern District of New York, where plaintiff had been
employed, even though venue was proper in Pennsylvania for ADEA claims (but not
Title VII claims) because interests of justice required that case be transferred to district
where venue was proper for all claims. Kravitz v Institute for Int'l Research (1993, ED
Pa) 63 BNA FEP Cas 444.
Footnotes
Footnote 6. O'Connor v Pan Am (1990, SD NY) 53 BNA FEP Cas 419.
A case was transferred to another district so as to enable the suit to be brought in the
district in which the relevant employment records were maintained. Hill v Secretary
(1985, DC Dist Col) 39 BNA FEP Cas 709.
C. Other Jurisdictional Questions [2173-2370]
Research References
5 USCS 7702, 7703; 20 USCS 1681 et seq.; 28 USCS 1738; 29 USCS 216,
255, 626, 633, 791, 794, 794a; 42 USCS 1981, 1985, 2000d, 2000e-5, 2000e-6,
2000e-16
FRCP Rules 6, 8, 15, 41, 60
29 CFR Parts 1601, 1613, 1614; 41 CFR Part 60-1
57 Fed Reg 12641, 4/10/92
1 Federal Procedure, L Ed, Access to District Court 1:18-1:33; 21 Federal Procedure,
L Ed, Judgments and Orders 51:188 et seq., 51:212 et seq.; 33 Federal Procedure,
L Ed, Trial 77:1-77:9
16 Am Jur Pl & Pr Forms (Rev), Labor and Labor Relations, Forms 271- 273
76
seq, EP-37,813
Employment Coordinator LR-43,000 et seq.
Modjeska, Employment Discrimination Law 2d, 2:15, 2:16, 2:22
1. Time Limitations [2173-2251]
2173 Generally
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Title VII and the other federal discrimination statutes frequently contain statutes of
limitations specifying when a suit must be filed. Moreover, even if a statute of
limitations does not prevent filing, a plaintiff who has delayed for an inordinate time in
bringing suit may be barred by the laches doctrine from asserting his claim. 1 The
importance of filing a timely complaint in a job discrimination or other fair employment
practices suit cannot be overstated. Unless there is a reasonable basis for modifying a
time period, a suit will be dismissed if it is filed even one day after the limitations period
has run. 2
Furthermore, the question has sometimes arisen as to whether statutory time limitations
contained in Title VII and the ADEA for administrative 3 and judicial 4 proceedings
in job discrimination cases creates a jurisdictional requirement that must be satisfied in
order for lawsuits to be viable under the statutes. 5
Courts have used a variety of phrases to describe the time limits, including "conditions
precedent," 6 "procedural prerequisites," 7 and "statutory prerequisite or
precondition." 8
However, regardless of how they characterize them, most courts take
the view that the charge filing periods and other time limitations under Title VII and the
ADEA are akin to statutes of limitations and are not jurisdictional prerequisites in an
absolute sense. Consequently, the time periods are subject to equitable modification. 9
Case authorities:
Complaint in Title VII action was filed in timely manner, despite fact that court clerk
held complaint in abeyance pending decision by court on plaintiff's application to
proceed in forma pauperis, because complaint was filed when received by clerk's office
for filing and not when clerk officially filed complaint after court acted on plaintiff's
application. Byars v City of Waterbury (1993, DC Conn) 63 BNA FEP Cas 673.
Claim of former teacher who was terminated from position as high school principal
alleging that discharge violated his federal civil rights is dismissed, where civil rights
claim was added to complaint over 2 years after termination, because claim is governed
by state's 2-year personal injury statute of limitation and because claim accrued on date
of termination, which was date on which defendants' actions attained degree of
permanence that should have triggered teacher's awareness of and duty to assert his
rights. Engelberg v Hull-Daisetta Indep. Sch. Dist. (1994, ED Tex) 848 F Supp 90.
Statute of limitations under Title VII is not jurisdictional. Williams-Guice v Board of
Educ. (1995, CA7 Ill) 45 F3d 161, 30 FR Serv 3d 848, reh den (1995, CA7 Ill) 1995 US
App LEXIS 1689.
Timely filing of charge of employment discrimination and retaliation with EEOC
pursuant to Title VII (42 USCS 2000e et seq.) does not toll running of limitations
period applicable to other actions, based on same facts, brought under 42 USCS 1983
and Title IX of Education Amendments of 1972 (20 USCS 1681 et seq.), because
1983 and Title IX claims are separate, distinct and independent from Title VII claims,
and procedures and remedies of 1983 and Title IX claims are not wholly integrated
with Title VII procedures and remedies. Linville v Hawaii (1994, DC Hawaii) 874 F
Former corporal's 1983 action against sheriff's department will not be dismissed for
untimeliness, even though she was not present at work from May 12 to May 27, 1992,
resigned on May 28, 1992, and filed suit May 17, 1995, because allegations and evidence
show that she remained employed by county, negotiated with county personnel director
regarding alternative positions, and continued to experience discrimination and
retaliation during her leave of absenceperiod lasting to within 3 years of filing.
Newsome v County of Santa Fe (1996, DC NM) 922 F Supp 519.
Terminated police officer's 1983 action against city is time-barred, but not so clearly
late that she and her attorney should be sanctioned, where officer received oral
notification of terminationallegedly in retaliation for her husband's successful lawsuit
against cityon March 25, 1987 but continued to negotiate with police chief for
alternative placement until April 4, 1987 and allegedly suffered from "blackball" threats
from chief and others until 1990, but did not file suit until April 3, 1991, because even
though court determines that claim accrued March 25, 1987 and that April 3, 1991 filing
was untimely under applicable 4-year limitations period, there was legitimate question
regarding time of accrual under circumstances. Farmer v Ft. Lauderdale (1993, SD Fla)
814 F Supp 1101, 7 FLW Fed D 26.
Plaintiff's status as pro se litigant does not excuse his failure to comply with statute of
limitations for filing of his Title VII action. Brown v Consolidated Freightway (1993, ND
Ga) 152 FRD 656.
Court did not have jurisdiction over civil rights action brought by White House chef who
had been fired, despite fact that former president had made discretionary decision to
make White House subject to 1972 amendments to 42 USCS 2000e-16, since policy
decision of prior administration, without more, cannot bind later administration. Haddon
v Walters (1994, DC Dist Col) 843 F Supp 758, 64 BNA FEP Cas 66.
Footnotes
Footnote 1. As to laches, generally, see 2310 et seq.

Footnote 2. Rice v New England College (1982, CA1) 676 F2d 9, 28 BNA FEP Cas
1191, 28 CCH EPD 32604; Allison v Western Union Tel. Co. (1982, CA11) 680 F2d
Time limits for filing administrative charges and complaints are discussed in 1232 et
seq., discussed in 1391 et seq., and discussed in 1721 et seq., while the timely
filing of administrative proceedings as a jurisdictional prerequisite for a court action is
considered in 2173 et seq.
Footnote 5. Hart v J. T. Baker Chemical Co. (1979, CA3) 598 F2d 829, 19 BNA FEP Cas
1347, 19 CCH EPD 9217; Chappell v Emco Machine Works Co. (1979, CA5) 601 F2d
1295, 20 BNA FEP Cas 1059, 20 CCH EPD 30250; Bethel v Jefferson (1978) 191 App
DC 108, 589 F2d 631, 18 BNA FEP Cas 789, 18 CCH EPD 8694.
Footnote 6. Dartt v Shell Oil Co. (1976, CA10) 539 F2d 1256, 13 BNA FEP Cas 12, 12
CCH EPD 11119, affd 434 US 99, 54 L Ed 2d 270, 98 S Ct 600, 16 BNA FEP Cas
146, 15 CCH EPD 7947; Hart v J. T. Baker Chemical Co. (1979, CA3) 598 F2d 829, 19
Footnote 7. Rasimas v Michigan Dept. of Mental Health (1983, CA6) 714 F2d 614, 32
Footnote 8. Ewald v Great Atlantic & Pacific Tea Co. (1980, CA6) 620 F2d 1183, 22
BNA FEP Cas 1263, 23 CCH EPD 30930, vacated 449 US 914, 66 L Ed 2d 143, 101
Footnote 9. 2226.
As to equitable modification by tolling, generally, see 2225 et seq.
39,201 et seq.
2174 How to combine timely Title VII and 1981 claims

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Race discrimination suits are usually brought under both Title VII and 42 USCS 1981.
11 Timeliness problems may arise with respect to one or the other of the claims,
however, since the two statutes are subject to different statutes of limitations. 12 In order
to allay timeliness concerns, either of the following procedures may be appropriate:
(1) file an action under 1981 and petition the court for a stay of the action until efforts
under Title VII at conciliation and voluntary compliance have been completed, then add
the Title VII claim in a supplemental pleading pursuant to FRCP 15(d);
(2) file the 1981 action, and, after prerequisites for an action under Title VII have been
completed, file a Title VII action and seek to have the two actions consolidated pursuant
to FRCP 42(a). 13
2174 ----How to combine timely Title VII and 1981 claims [SUPPLEMENT]
Case authorities:
Security officer's claim that he was denied a promotion because of his Hispanic national
origin in violation of 42 USCS 1981 is dismissed, where officer was passed over for
promotion in 1986 and 1987, filed an EEOC claim in 1989, but did not file suit until
1991, more than three years after failure to promote, because limitations period in 1981
actions is three years, and filing of administrative claim pursuant to Title VII, 42 USCS
2000e et seq., does not toll running of statute of limitations. Fuentes v City of New York
Human Resources Admin. (1993, SD NY) 830 F Supp 786.
Footnotes
Footnote 12. Compare 2179 with 2185.
Footnote 13. Plummer v Chicago Journeyman Plumbers' Local Union (1978, ND Ill) 452
F Supp 1127, 20 BNA FEP Cas 294, revd on other grounds (CA7) 26 BNA FEP Cas
2175 How to revive time-barred suits

View Entire Section
Plaintiffs have attempted various strategems to resuscitate time-barred job discrimination
claims. One approach that hasn't worked is to resurrect a stale claim in the form of a
cause of action for retaliation. A retaliatory discharge claim did not revive an earlier
time-barred Title VII action, where the retaliation claim was not like or related to the
earlier claim of denial of promotion on the basis of race and was brought on a different
basis of discrimination. 14
However, the Seventh Circuit has recognized that new evidence of timeliness may
prompt revival, although it disapproved the plaintiff's method of presenting the evidence
in the particular circumstances. Specifically, the court said that the reinstitution of a
time-barred Title VII complaint, based on newly discovered evidence of a timely filing,
should be addressed to the federal district court in the form of a motion for relief from
judgment under FRCP 60(b)(2), and filed within one year after the entry of judgment
under FRCP 60(b). Raising the issue of newly discovered evidence on appeal was
improper, said the court. 15
Plaintiffs who voluntarily dismissed an earlier suit have also had some success in
reinstituting proceedings, even though the statute of limitations had run at the time the
new suit was filed. The 90-day statute of limitations for filing a Title VII action is not
tolled by the actions' dismissal without prejudice. Courts recognize that dismissal
without prejudice is often equivalent to dismissal with prejudice in Title VII cases,
because the dismissal occurs after the short period for filing the action has passed. 16 To
circumvent this harsh result, courts have applied a number of solutions. For instance, one
court permitted the action to be reinstated under FRCP 60(b)(1), relating to relief from a
final judgment on account of mistake, inadvertence, surprise, or excusable neglect. 17
Another court ruled that the plaintiff's attorney should be assessed court costs in lieu of
dismissing the prior action due to the attorney's lack of knowledge of the court's local
rules. 18 A third court suggested that the plaintiff must refile his Title VII action within
90 days after the first action is dismissed without prejudice. 19
Caution: There is no statutory authority in Title VII for permitting a plaintiff to

refile his action within 90 days after the suit is dismissed without prejudice. The better
approach is to urge the court to apply alternative courses of action to dismissal without
prejudice. 20
However, one court has refused to permit the refiling of a Title VII complaint where the
action was dismissed without prejudice under FRCP 4(5) for failure to perfect service of
the summons and complaint within 120 days after the complaint was filed. 21
Footnotes
Footnote 14. Bell v Emerson Electric Co. (1983, ED Mo) 31 CCH EPD 33531.
Footnote 15. Anooya v Hilton Hotels Corp. (1984, CA7) 733 F2d 48, 34 BNA FEP Cas
1529, 34 CCH EPD 34331.
Footnote 16. McGowan v Faulkner Concrete Pipe Co. (1981, CA5) 659 F2d 554, 28
Footnote 17. Pond v Braniff Airways, Inc. (1972, CA5) 453 F2d 347, 4 BNA FEP Cas
119, 4 CCH EPD 7604.
Footnote 18. Dove v Codesco (1978, CA4) 569 F2d 807, 16 BNA FEP Cas 643, 15 CCH
EPD 8042.
Footnote 19. McClain v Mack Trucks, Inc. (1979, ED Pa) 81 FRD 730, 24 BNA FEP Cas
1691.
Footnote 20. For example, see the discussion concerning resuscitation on the basis of
equitable tolling principles 2225 et seq., and in particular, see 2227, which
discusses the effect on revival of a "saving clause" in an applicable state statute of
limitations.
Footnote 21. Porter v Beaumont Enterprise & Journal (1984, CA5) 743 F2d 269, 35 BNA
FEP Cas 1774, 35 CCH EPD 34694.
2176 Statute of limitations as an affirmative defense

View Entire Section
Failure to comply with a statute of limitations is an affirmative defense which must be
expressly pleaded. 22 In the Supreme Court's Mohasco case, the plaintiff-appellee filed
his Title VII lawsuit 91 days after receiving his right-to-sue notice from the EEOC.
However, rather than dismissing the suit on this basis, the court simply noted that the
defendant-petitioner corporation did not assert untimeliness as a defense. 23
The
defense is not waived by submitting to the EEOC's jurisdiction through participation in
Title VII's administrative process, 24 or by failing to assert it where the complaint has
given insufficient notice to the defending party of the existence of the count to which the
limitations defense would otherwise apply. 25
Observation: A statute of limitations defense may be waived by contractual

agreements setting limitations to legal actions. As a result, employees' 1981 claims
were time-barred by contractual limitation clauses of six months. 26
Footnotes
Footnote 22. FRCP 8(c).
Footnote 24. Flowers v Abex Corp. (1984, ND Ill) 580 F Supp 1230, 35 BNA FEP Cas
1597.
Footnote 25. Wislocki-Goin v Mears (1987, CA7 Ind) 831 F2d 1374, 45 BNA FEP Cas
Footnote 26. Taylor v Western & Southern Life Ins. Co. (1992, CA7 Ill) 966 F2d 1188,
59 BNA FEP Cas 625, 59 CCH EPD 41638, holding that employees' 1981 claims
were time-barred by contractual limitation clauses of six months.
b. Applicable Limitations Periods [2177-2201]

(1). Title VII Cases [2177-2184]
2177 Inapplicability of state statutes of limitation

View Entire Section
State statutes of limitation have no application to Title VII suits, whether they are
brought by private parties, 27 or by the EEOC, 28 either to enforce individual rights
29 or to make pattern-or-practice claims. 30
Footnotes
Footnote 27. Third CircuitVera v Bethlehem Steel Corp. (1978, MD Pa) 448 F Supp
610, 20 BNA FEP Cas 66.
Fourth CircuitLinder v Litton Systems, Inc., Amecom Div. (1978, DC Md) 81 FRD
Sixth CircuitDraper v United States Pipe & Foundry Co. (1975, CA6) 527 F2d 515, 11
Ninth CircuitKirk v Rockwell International Corp. (1978, CA9) 578 F2d 814, 17 BNA
Footnote 28. Occidental Life Ins. Co. v EEOC (1977) 432 US 355, 53 L Ed 2d 402, 97
Footnote 29. EEOC v Kimberly-Clark Corp. (1975, CA6) 511 F2d 1352, 10 BNA FEP
BNA FEP Cas 930, 10 CCH EPD 10511; EEOC v Eagle Iron Works (1973, SD Iowa)
Footnote 30. United States v Masonry Contractors Asso. (1974, CA6) 497 F2d 871, 8
2178 Private suits; 180-day waiting period

View Entire Section

An individual cannot bring suit in district court in his own name until at least 180 days
have passed since the filing of the charge with the EEOC. 31
Footnotes
As to the effect of an early issuance of a right-to-sue notice, see 2263.
Annotation: Time requirements for civil action for violation of equal employment
opportunities provisions under 706 of Civil Rights Act of 1964 (42 USC 2000e-5),
4 ALR Fed 833.
Forms: MotionTo dismiss complaintUnder Section 706 of Civil Rights Act of
1964Expiration of time for filing charge with Equal Employment Opportunity
CommissionCharge initially filed with state or local agency. 16 Am Jur Pl & Pr
MotionTo dismiss complaintUnder Section 706 of Civil Rights Act of
1964Plaintiff's failure timely to file charge with Equal Employment Opportunity
CommissionAbsence of state or local agency with authority to act. 16 Am Jur Pl & Pr
MotionFor summary judgmentBy respondentIn action under Section 706 of Civil
Rights Act of 1964Plaintiff's failure timely to file action. 16 Am Jur Pl & Pr Forms
(Rev), Labor Relations, Form 273.
2179 Private suits; 90-day limitations period

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Title VII provides that once an aggrieved private party receives a "right- to-sue" notice
from the EEOC, the party has 90 days to bring a private civil action against the
respondent named in the charge. 32
2179 ----Private suits; 90-day limitations period [SUPPLEMENT]
Case authorities:
In instances where Title VII complaint is timely filed and later dismissed, timely filing of
complaint does not toll or suspend 90-day limitations period of 42 USCS
2000e-5(f)(1). Minnette v Time Warner (1993, CA2 NY) 997 F2d 1023, 62 BNA FEP
Cas 385, 62 CCH EPD 42492.
Ninety-day period operates as statute of limitations, rather than jurisdictional
prerequisite, so that Title VII plaintiff can avoid dismissal of action as untimely if he can
demonstrate equitable reason for filing outside ninety days; although provision is
liberally construed insofar as determining when time begins to run, it is strictly construed
as limitations period. McCullough v CSX Transp. R.R. (1995, ED Pa) 67 BNA FEP Cas
945.
Title VII complaint that is accompanied by request for leave to proceed in forma pauperis
is filed for purposes of 90-day statute of limitations when it is originally received by
clerk of court, and denial of request to proceed in forma pauperis does not affect timely
filing where required fee is paid within reasonable time after denial. Rounds v
Milwaukee County Community Correctional Ctr. (1994, ED Wis) 65 BNA FEP Cas
1255.
Title VII plaintiff has burden of proving that he has adhered to requirement that suit be
brought within ninety days of receipt of notice of right to sue. Martinez v United States
Sugar Corp. (1995, MD Fla) 880 F Supp 773, 67 BNA FEP Cas 1108, 8 FLW Fed D 689.
In order to determine if claim is timely under Title VII (i.e. filed within 90 days of
claimant's receipt of right-to-sue letter), it is normally assumed that mailed document is
received three days after its mailing, and that notice provided by government agency, in
absence of challenge, has been mailed on date shown on notice. Sherlock v Montefiore
Medical Ctr. (1996, CA2 NY) 84 F3d 522, 70 BNA FEP Cas 1377.
Footnotes
A complaint alleging a racially discriminatory termination, was timely even though it
was filed more than 90 days after the issuance of a right-to- sue notice, where the
plaintiff filed it within 90 days after the issuance of a right-to-sue notice in a related
charge of discrimination in training against the same employer. Brown v Continental
Can Co. (1985, CA9 Cal) 765 F2d 810, 38 BNA FEP Cas 695, 37 CCH EPD 35420.
A complaint alleging discriminatory termination under Title VII was timely, even though
it had not actually been docketed by the clerk of the court until after the expiration of the
90-day period. The complaint had been received by the clerk within the 90-day period.
James v Local 32B-32J, Service Employees International Union, AFL-CIO (1986, SD
NY) 41 BNA FEP Cas 144.
As to the right-to-sue notice, see 2255.
4 ALR Fed 833.

(Rev), Labor and Labor Relations, Form 273.
2180 Federal employment suits; 180-day waiting period

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Suits alleging federal employment discrimination may be brought by an aggrieved
individual after 180 calendar days from the date he filed a complaint or claim with the
employer agency, if there has been no decision, or after 180 days from the date he filed
an appeal with the EEOC, if there has been no decision by the EEOC. 33
2180 ----Federal employment suits; 180-day waiting period [SUPPLEMENT]
Regulations:
Case authorities:
Title VII statute of limitations (42 USCS 2000e-16(c)) applies to age discrimination
claims brought by federal employees under 29 USCS 633a; statute of limitations for
age discrimination claims filed by private employees under 29 USCS 626(e) does not
apply to such actions. Taylor v Espy (1993, ND Ga) 816 F Supp 1553, 61 BNA FEP Cas
785.
Footnotes
Footnote 33. 42 USCS 2000e- 16(c); 29 CFR 1613.281, 1613.641(a).
2181 Federal employment suits; 90-day limitations period

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As amended by the Civil Rights Act of 1991, 34 Title VII provides that the period of
limitations for filing a civil action against the Federal Government is 90 days from
receipt of the final decision of the agency involved, or if the decision is appealed to the
EEOC, 90 days following receipt of the EEOC's decision. 35 This amendment subjects
claimants in cases against the Federal Government to a suit-filing limitations period of
the same duration as those that apply to private complainants, 36 rather than to Title
VII's former 30-day suit-filing period. 37
Observation: The Civil Rights Act of 1991's amendment of Title VII also operates to
expand the period for filing complaints against the Federal Government under other
federal antidiscrimination statutes which have incorporated by reference the Title VII
statute of limitations for federal employee complaints, including 501 of the
Rehabilitation Act of 1973. 38
If the plaintiff fails to bring suit within 30 days of receipt of the notice of final agency
action or the decision of the EEOC on appeal, the complaint may be dismissed. 39
2181 ----Federal employment suits; 90-day limitations period [SUPPLEMENT]
Case authorities:
1991 amendment to 42 USCS 2000e-16(c), which extended period for filing
discrimination claims against federal government from 30 to 90 days, may not be applied
retroactively. Chenault v United States Postal Serv. (1994, CA9 Or) 37 F3d 535, 7 ADD
135, 94 CDOS 7673, 94 Daily Journal DAR 14074, 3 AD Cas 1185.
Footnotes
Footnote 34. P.L. 102-166 114(1).
Footnote 36. 2179.
Footnote 38. As to 501 of the Rehabilitation Act, see 2198.

2182 Suits against other governmental entities and political subdivisions

View Entire Section
Suits against political subdivisions and governmental entities other than federal agencies
must be filed within 90 days after receipt of notice from the Attorney General of the right
to sue. 40
Footnotes
4 ALR Fed 833.
(Rev), Labor and Labor Relations, Form 273.
2183 EEOC suits; 30-day waiting period

View Entire Section

Title VII provides that if, within 30 days after a charge is filed with the EEOC, the
Commission has been unable to secure an acceptable conciliation agreement, the
Commission may bring a civil action against a private respondent named in the charge.
41 This means that the EEOC must wait at least 30 days before commencing suit. The
30-day period is not a maximum time within which the EEOC must conclude its
conciliation efforts and bring an enforcement suit. 42
Footnotes
Footnote 41. 42 USCS 2000e- 5(f)(1).
4 ALR Fed 833.
Footnote 42. Occidental Life Ins. Co. v EEOC (1977) 432 US 355, 53 L Ed 2d 402, 97
2184 Limitations on EEOC suits

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The Supreme Court has held that neither the 180-day period within which the EEOC is
directed to attempt to conciliate 43 nor any state statute of limitations operates as a limit
on the EEOC's right to bring suit under Title VII to redress an individual discrimination
claim. 44
The EEOC's issuance of a right to sue letter upon the complainant's request
does not affect its right to bring a civil action at any time thereafter, even if the
complainant does not file suit within the statutory 90-day period. 45 There is also no
statute of limitations under Title VII for pattern-or-practice suits brought by the EEOC,
46 and time limits imposed on individual suits are not extended to pattern-and-practice
suits. 47
However, in holding that there are no statutes of limitation applicable to EEOC actions
on individual charges, the Supreme Court pointed out that "it is of course possible that . .
. a defendant in a Title VII enforcement action might still be significantly handicapped in
making his defense because of an inordinate EEOC delay in filing the action after
exhausting its conciliation efforts. If such cases arise, the federal courts do not lack the
power to provide relief." 48
Thus, the laches defense may apply to bar a dilatory
EEOC suit. 49
2184 ----Limitations on EEOC suits [SUPPLEMENT]

Case authorities:
Employee who sought to intervene in EEOC suit against her employer was not allowed to
add new common-law claims against defendants that were time-barred by applicable
statutes of limitations, since relation-back doctrine (FRCP 15(c)) was not applicable, and
employee had been free to pursue each of her common-law claims in court of law
independent of EEOC proceedings. EEOC v Domino's Pizza (1994, DC Md) 870 F Supp
655, 66 BNA FEP Cas 888.
Footnotes
Footnote 44. Occidental Life Ins. Co. v Equal Employment Opportunity Com. (1977)
432 US 355, 53 L Ed 2d 402, 97 S Ct 2447.
4 ALR Fed 833.
Footnote 45. EEOC v Appleton Electric Co. (1980, ND Ill) 487 F Supp 1207, 22 BNA
FEP Cas 1368.
Footnote 47. United States v Masonry Contractors Asso. (1974, CA6) 497 F2d 871;
Equal Employment Opportunity Com. v Continental Oil Co. (1975, DC Colo) 393 F
Supp 167.
Footnote 48. Occidental Life Ins. Co. v Equal Employment Opportunity Com. (1977)
432 US 355, 53 L Ed 2d 402, 97 S Ct 2447.
Footnote 49. As to laches, generally, see 2248 and , see 2249.
(2). Cases Under the Early Civil Rights Laws [2185- 2187]
2185 Applicability of state statutes of limitation for personal injury torts

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There is no express or otherwise relevant federal statute of limitations for a job
discrimination cause of action under 42 USCS 1981 and 1983. Therefore, the
controlling limitation period is the one set forth in the most analogous statute of
limitations of the state in which the cause of action arose. 50
Section 1983 actions
are best characterized for this purpose as personal injury actions, as are 1981 claims.
Accordingly, in actions under either 1983 51 or 1981, 52 state statutes of
limitation, for personal injury tort actions apply as the most analogous. Finally, since
1985(3), like 1983, seeks to remedy the wrongful deprivation of rights, privileges, and
immunities, and these deprivations are sound in tort, 1985(3) claims also are governed
by the state statute of limitations for personal injury actions. 53
When a state has more than one statute of limitations applicable to personal injury
actions, the general or residual personal injury statute should be chosen over limitation
periods applicable to specific enumerated intentional torts. In marked contrast to the
multiplicity of state intentional tort statutes of limitation, every state has one general or
residual statute of limitations governing personal injury actions. Thus, applying this
general or residual statute to federal civil rights actions should enable the parties to
ascertain readily, with little risk of confusion or unpredictability, the applicable
2185 ----Applicability of state statutes of limitation for personal injury torts
[SUPPLEMENT]
Case authorities:
Former employee of retail chain department store has civil rights claims dismissed for
untimeliness, where employee admits he believed he was being discriminated against on
basis of his race about end of 1989, yet did not file 1981 action until November 9,
1992, because Pennsylvania 2-year statute governing personal injury actions is properly
applied to 1981 claims. Clark v Sears, Roebuck & Co. (1993, ED Pa) 827 F Supp 1216.
Footnotes
295, 95 S Ct 1716, 10 BNA FEP Cas 817, 9 CCH EPD 10149; Wilson v Garcia (1985)
471 US 261, 85 L Ed 2d 254, 105 S Ct 1938.
Annotation: State statute of limitations as affecting federal civil rights actions under
42 USCS 1981, 29 ALR Fed 710.
Footnote 51. Wilson v Garcia (1985) 471 US 261, 85 L Ed 2d 254, 105 S Ct 1938.
Footnote 52. Goodman v Lukens Steel Co. (1987) 482 US 656, 96 L Ed 2d 572, 107 S
Footnote 53. Bougher v University of Pittsburgh (1989, CA3 Pa) 882 F2d 74.
Footnote 54. Owens v Okure (1989) 488 US 235, 102 L Ed 2d 594, 109 S Ct 573.
Observation: Although Owens is a 1983 case, the same rule most likely applies in
1981 actions, since the Supreme Court has previously characterized 1983 and
1981 actions identically for statute of limitations purposes.
Caution: Despite the Supreme Court's assurance that Owens should make selection
of the appropriate statute a simple matter in all instances, a few states such as
Connecticut, South Carolina, South Dakota, and Wisconsin still present problems.
These state statutes are discussed in Employment Coordinator EP-37,813.
Practice References Table of applicable general or residual state statutes of limitation.
Employment Coordinator EP-37,813.
2186 Identifying the general or residual statute of limitations for personal injury
actions
View Entire Section
A state general or residual statute of limitations for personal injury actions takes one of
two forms. Some states have a general provision which applies to all personal injury
actions with certain specific exceptions. Other states have a residual provision which
applies to all actions not specifically provided for, including personal injury actions. 55
This second type of general residual provision should be used only when it includes,
either explicitly or by judicial construction, unspecified personal injury actions. 56
Footnotes
Practice References Examples of general or residual statutes of limitations for
personal injury actions. Employment Coordinator EP-37,811.
2187 Retroactive application of state personal injury tort limitation periods

View Entire Section

Prior to the decisions in Wilson and Goodman, 57 the various state statutes of limitation
were applied in employment discrimination actions, including ones for contract actions,
58 tort actions, 59 general contract and tort actions, 60
federal causes of action, 61
actions to recover wages, 62 actions based on liability created by statute, 63 and actions
not otherwise provided for. 64
Since a wide range of possible limitation periods existed for actions under the early civil
rights acts prior to the Wilson and Goodman decisions, the question has arisen whether
the limitations period approved in these cases should have been applied retroactively.
The Supreme Court has now substantially revised its jurisprudence concerning
retroactivity. Although unable to agree on an opinion, six members of the Court have
agreed that, if a new rule is applied to a party in the case in which the rule is announced,
then the rule must be applied retroactively to all cases currently pending. Once the court
has applied a rule of law to litigants in one case, it must do so with respect to all others
not barred by procedural requirements or res judicata. 65
Footnotes
Footnote 57. 2185.
Footnote 58. Martin v Georgia-Pacific Corp. (1977, CA8) 568 F2d 58, 16 BNA FEP Cas
303, 15 CCH EPD 7982.
Footnote 59. Truvillion v King's Daughters Hospital (1980, CA5) 614 F2d 520, 22 BNA
FEP Cas 554, 22 CCH EPD 30798; Movement for Opportunity & Equality v General
Motors Corp. (1980, CA7) 622 F2d 1235, 22 BNA FEP Cas 1010, 22 CCH EPD 30863.
Footnote 60. Liotta v National Forge Co. (1980, CA3) 629 F2d 903, 23 BNA FEP Cas
1585, 105 BNA LRRM 2636, 24 CCH EPD 31357, 89 CCH LC 12286, cert den 451
US 970, 68 L Ed 2d 348, 101 S Ct 2045, 101 S Ct 2046, 107 BNA LRRM 2144, 91
CCH LC 12774; Hamilton v General Motors Corp. (1979, CA5) 606 F2d 576, 21 BNA
Footnote 62. Colston v Pinegree (1980, ND Fla) 498 F Supp 327, 23 BNA FEP Cas 427,
24 CCH EPD 31305; Persons v United Parcel Service, Inc. (1980, ND Ga) 502 F Supp
1176, 24 BNA FEP Cas 734.
Footnote 63. Keyse v California Texas Oil Corp. (1978, CA2) 590 F2d 45, 18 BNA FEP
Cas 1397, 18 CCH EPD 8771; Tyler v Reynolds Metals Co. (1979, CA9) 600 F2d 232,
Footnote 64. Teague v Caterpillar Tractor Co. (1977, CA7) 566 F2d 7, 16 BNA FEP Cas
769, 15 CCH EPD 7889; Tatum v Golden (1978, CA8) 570 F2d 753, 16 BNA FEP Cas
Footnote 65. James B. Beam Distilling Co. v Georgia (1991, US) 115 L Ed 2d 481, 111
S Ct 2439.
(3). Equal Pay Act Cases [2188-2191]
2188 Suits alleging nonwillful discrimination

View Entire Section
The Fair Labor Standards Act, of which the Equal Pay Act is a part, provides a statute of
limitations that is specifically applicable to Equal Pay Act actions. 66 However, a
different limitations period may apply when the violation is willful. 67
Footnotes
Footnote 67. 2189.
2189 Suits alleging willful violation

View Entire Section
A cause of action arising from a willful violation of the Equal Pay Act must be
commenced within three years after the cause of action accrued. 68
Footnotes
2190 --Willful violation defined

View Entire Section

A violation of the Fair Labor Standards Act, of which the Equal Pay Act is a part, is
willful if the employer exhibited reckless disregard of whether its conduct violated the
statute. Mere negligent or unreasonable actions by the employer do not constitute willful
violations. 69
A finding of willfulness is not necessarily established merely because the employer has
failed to find out whether a challenged pay practice violates the EPA. However, an
employer's deliberate ignorance of the EPA consequences of a complaint alleging denial
of "equal pay for equal work" merely because it had not been explicitly called a sex
discrimination complaint was a willful violation. 70
Footnotes
Footnote 69. McLaughlin v Richland Shoe Co. (1988) 486 US 128, 100 L Ed 2d 115,
108 S Ct 1677, 28 BNA WH Cas 1017, 46 CCH EPD 37966, 108 CCH LC 35067.
Footnote 70. EEOC v Delaware Dept. of Health & Social Services (1989, CA3) 865 F2d
LC 35157.

View Entire Section
The EEOC has issued proposed regulations that would apply the Fair Labor Standards
Act's two/three year limitations period to Equal Pay Act suits against the government
regardless of whether the claimant has filed an administrative charge. 71
When a federal employee or applicant alleging an Equal Pay Act violation has appealed
to the Merit Systems Protection Board under the Civil Service Reform Act, 72 any
action for judicial review of the Board's final decision on the appeal must be filed within
30 days after the employee or applicant receives notice of the decision. 73
Footnotes
Footnote 71. Prop 29 CFR 1614.411 10/31/89.
(4). ADEA Cases [2192-2196]
2192 Sixty-day waiting period in private suits

View Entire Section
No private civil action can be commenced by an individual under the ADEA until 60
days after the charge was filed with the EEOC 74 or the state referral agency (120 days
if the state agency is in its first year of operation). 75
A lawsuit can be brought after either 60-day deferral period has ended. Sequential filing
is unnecessary, and both 60-day periods can run concurrently. Congress felt that any
delay in plaintiff bringing suit would be prejudicial in light of the victim's age. 76
Caution: Title VII requires sequential filing of state and federal charges. 77
Therefore, if a suit is brought under both the ADEA and Title VII, the suit should be
instituted after Title VII administrative preconditions have been met.
Footnotes
2193 Ninety-day limitations period after termination of EEOC proceedings

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As amended by the Civil Rights Act of 1991, 78 the ADEA provides that where an age
discrimination charge filed with the EEOC is dismissed or the proceedings are otherwise
terminated by the EEOC, the EEOC must notify the charging party, who may then bring
a civil action against the respondent named in the charge within 90 days after having
received such notice from the EEOC. 79 The amendment deletes the ADEA's reference
incorporating the Portal-to-Portal Act of 1947's two and three-year statute of limitations
for nonwillful and willful violations, 80 which applied regardless of when or whether
the EEOC completed administrative processing of an ADEA charge. This brings the
ADEA in line with Title VII by providing a comparable period of limitations for
instituting civil actions on charges filed with the EEOCthe running of which is started
by the same triggering eventand by requiring notice of termination of administrative
proceedings to be given to claimants. 81
Observation: Unlike Title VII claimants, who are subject to a civil complaint
limitations period that starts running upon receipt of notice of right to sue at the
conclusion of the EEOC's administrative proceedings, an individual seeking to file a
civil complaint under the ADEA before amendment by the Civil Rights Act of 1991
could find that the filing period had been largely consumed by the EEOC's efforts to
resolve the claim administratively. As a result of the amendment, an individual may
file an ADEA suit at any time from 60 days after filing an administrative charge until
the expiration of 90 days after the EEOC has completed its proceedings on the charge.
ADEA claimants will only be subject to a period of limitations shorter than the
predecessor two-year period when the EEOC completes its proceedings within 630
days after alleged violations.
Observation: Willfulness is no longer a factor in the length of time available for

filing ADEA complaints in court. However, it may still be considered as a factor
bearing upon the availability of liquidated damages. 82
2193 ----Ninety-day limitations period after termination of EEOC proceedings
[SUPPLEMENT]
Case authorities:
Use of word "may" in 29 USCS 626(e), i.e. that civil action may be brought within 90
days of receipt of notice of right to sue, indicates that it was not intended to require that
claimant file suit within such 90 days or be thereinafter barred from filing. Simmons v Al
Smith Buick Co. (1993, ED NC) 841 F Supp 168, 63 BNA FEP Cas 958.
Statute of limitations applicable to federal employees challenging adverse decision of
EEOC under ADEA is period (30 days pre-1991, and 90 days post-1991) similarly
imposed on Title VII (42 USCS 2000e-16(c)) claims. Jones v Runyon (1994, CA10
Colo) 32 F3d 1454, 65 BNA FEP Cas 1066.
Footnotes
Footnote 78. P.L. 102-166 115.
Footnote 80. P.L. 102-166 115.
Annotation: What is "willful" violation of Age Discrimination in Employment Act (29
USCS 621-634) for purpose of extension to 3 years of 2-year limitations period for
filing action, 82 ALR Fed 377.
Footnote 81. H Rept No. 102-40, Part 1, 4/24/91, pp. 96, 97.
Footnote 82. As to liquidated damages, generally, see 3007 et seq.
2194 --Temporary extension of limitations period

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Notwithstanding the limitations usually applicable to nonfederal suits after termination of
EEOC proceedings, 83 a temporary extension of the limitations period is applicable to
ADEA claims meeting certain conditions under the Age Discrimination Claims
Assistance Act (ADCCA). Civil actions on such claims may be filed at any time within
the 450-day period beginning on November 3, 1990 if (1) a timely ADEA charge was
filed with the EEOC after April 6, 1985; (2) the limitations period runs after April 6 but
before the end of the 180-day period beginning on November 3, 1990 without the EEOC
having either resolved the charge through conciliation or notified the claimant of the right
to file an independent suit; and (3) no civil suit was brought on the claim before the
expiration of the limitations period. 84 The EEOC must, within 60 days after
November 3, 1990, inform every claimant to whom the extension is applicable of the
effective dates of the extension, as well as his rights under the ADEA. 85
Since the extended limitations period under ADCCA begins to run only when the
charging party has received notice of the EEOC's disposition of the charge, the EEOC's
letter to the complainant acknowledging that the charge had been filed with the
appropriate state agency did not constitute notification taking the claim out of the
operation of the ADCCA. Only later letter notifying her that the EEOC had found no
violation constituted notification of the agency's disposition, as required under the
statutory extension. 86 Likewise, the EEOC's routine notification of the receipt and
filing of the plaintiffs' administrative charges did not inform them of the disposition of
their charges, and, thus, did not trigger the start of the ADCCA limitations period. The
notification merely informed the plaintiffs of their right to file suit up to 60 days after the
charge filing date, notwithstanding any action by the EEOC or a state agency, and did not
foreclose agency action at a later date. 87
Observation: This extension is designed to revive the claims of those claimants

whose failure to file suit during the generally applicable period of limitations is
attributable to the EEOC's inactivity and failure to notify claimants that their option to
proceed in federal court may be lost, despite the agency's failure to conclude
administrative proceedings, if the limitations period has expired since the beginning of
the alleged violation.
Footnotes
Footnote 83. 2193.
Footnote 84. 29 USCS 626 note (PL 100-504 3).

Footnote 85. 29 USCS 626 note (PL 100-504 4).
Footnote 86. Schleiniger v Des Moines Water Works (1991, CA8 Iowa) 925 F2d 1100,
Footnote 87. Ruggieri v Warner & Swasey Co. (1991, CA1 Mass) 938 F2d 322, 56 BNA
2195 Filing notice of intent to sue in federal employment actions

View Entire Section
If an individual alleging age discrimination in federal employment under the ADEA opts
to sue immediately rather than file an age discrimination complaint with the EEOC, 88
he must give the EEOC at least 30 days' notice of his intent to sue before commencing
the action. The notice must be filed within 180 days after the alleged unlawful practice
occurred. 89 This notice requirement is a statutory condition rather than a jurisdictional
requirement, and is subject to waiver, estoppel, and equitable tolling. 90
Observation: A federal employee's notice to his employing agency will suffice as

the Commission's notice of his intent to file suit under the ADEA. 91
Footnotes
Footnote 90. Berry v Abdnor (1989, DC Dist Col) 1989 US Dist LEXIS 4225.
Footnote 91. Stevens v Department of Treasury (1991, US) 114 L Ed 2d 1, 111 S Ct
1562, 91 CDOS 2899, 91 Daily Journal DAR 4662, 55 BNA FEP Cas 845, 56 CCH EPD
40679.
2196 Federal employment suits; time limitations period

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Go to Supplement
Although the ADEA provides a separate administrative process for age discrimination
claims against the Federal Government, 92 those provisions do not specify any
limitations period for civil complaints of age discrimination in federal employment.
Thus, several different periods are arguably applicable.
One court has held that the appropriate period is the same as for those against
nongovernmental defendants, and not the six-year statute of limitations for non-ADEA
suits against the Federal Government. 93 Although a district court in the Second Circuit
has adopted the same statute of limitations for similar reasons, 94 the Second Circuit has
rejected that limitations period because it is one of the ADEA provisions that the Act
expressly makes inapplicable to federal employers. 95
The application of a second statute of limitations has been advocated with respect to
ADEA suits filed by federal employees or applicants after the completion of
administrative proceedings. District courts in the Fourth 96 and Fifth 97 Circuits have
found it appropriate to borrow the 30-day limitations period for federal employee or
applicant suits under Title VII, since the ADEA's federal employment provisions are
patterned after those of Title VII. Similarly, the First Circuit borrowed the 30-day
limitations period for Title VII suits as a natural source for an ADEA limitations period
given the statutes' common purpose. 98 Although district courts in the Second 99 and
Ninth Circuits 1 have done likewise, the Second Circuit has rejected that limitations
period because a similar provision was deleted from the proposed federal employment
amendments to the ADEA before they were enacted, and because the EEOC regulation
containing the 30-day limitation on Title VII actions (29 CFR 1613.281) is expressly
inapplicable to ADEA actions under the EEOC's exclusion regulation (29 CFR
1613.514), 2 while the Ninth Circuit has interpreted Congress' silence on the issue as an
indication that the Title VII limitations period was not intended to apply to ADEA cases.
3
Observation: The applicability of the 30-day limitations period is moot in ADEA

suits filed directly against federal employers without resort to the administrative
process available under the Act, since that period can be triggered only by receipt of
notice of final agency or EEOC action. 4
Observation: Title VII's 30-day limitations period has been extended to 90 days by
the Civil Rights Act of 1991. 5
In the absence of any specifically applicable statute of limitations on ADEA actions
concerning federal employment, a third alternative, the general statute of limitations for
actions against the United States 6 has been urged by the Ninth Circuit 7 and a district
court in the Seventh Circuit. 8 While the Second Circuit declined to adopt that statute's
six-year limitations period in a case where other grounds existed for finding a complaint
to be timely because it related back to a time well within any of the several limitation
periods proposed by the parties, the six-year period was the only period not expressly
rejected by the court. 9 The First Circuit rejected using the six-year limitations period in
federal employment ADEA actions because there was no clear manifestation from
Congress that it intended a radically longer limitations period under the ADEA than
under Title VII. 10
The Supreme Court, in a case concerning the notice of intent to sue requirement for
federal employees or applicants who choose to sue directly in federal court, refused to
decide what the limitations period for such actions should be, stating only that a claim
filed one year and six days after the alleged discrimination was well within whatever
statute of limitations might apply. 11
The EEOC's position is that Title VII's 90-day limitations period should be borrowed for
federal sector ADEA lawsuits when the complainant has filed an administrative charge.
12 When a claim is brought directly in court without prior filing of an administrative
charge, the plaintiffs should file as soon as possible after the expiration of the required
waiting period. 13
If the alleged ADEA violation has been appealed to the Merit Systems Protection Board
under the Civil Service Reform Act, 14 any action for judicial review of the Board's
final decision on the appeal must be filed within 30 days after the employee or applicant
receives notice of the decision. 15
2196 ----Federal employment suits; time limitations period [SUPPLEMENT]
Regulations:
Case authorities:
Appropriate statute of limitations for ADEA claim brought by federal employee that
accrued prior to Civil Rights Act of 1991 is two year/three year period provided in 29
USCS 255; Title VII statute of limitations (i.e. 90 days) applies to all ADEA causes of
action accruing after effective date of Civil Rights Act of 1991. Rawlett v Runyon (1994,
ED Va) 849 F Supp 449, 64 BNA FEP Cas 865.
Former special agent's appeal of adverse administrative decision on her sex
discrimination claim is dismissed for untimeliness, where EEOC mailed copies of its
August 21, 1991 decision to plaintiff and her counsel, counsel received notice on August
24, 1991, plaintiff received hers on August 17, 1992, and civil complaint was filed in
district court on September 15, 1992, because EEOC technically complied with notice
requirements by mailing both copies to plaintiff's attorney's address, and 30- day period
set forth in 5 USCS 7703(b)(2) was triggered August 24, 1991. Kubicki v Brady (1993,
ED Mich) 813 F Supp 1270.
Limitations period for analogous claims of employment discrimination filed by federal
employees under Title VII (42 USCS 2000e-16) applies to ADEA claims by federal
employees. Taylor v Espy (1993, ND Ga) 816 F Supp 1553, 61 BNA FEP Cas 785.
Six-year limitations bar of 28 USCS 2401(a) applies to all civil actions whether legal,
equitable, or mixed; it also applies to claims seeking to correct or upgrade discharge of
former service members. Kendall v Army Bd. for Correction of Military Records (1993,
App DC) 996 F2d 362.
Footnotes

Footnote 93. Wiersema v Tennessee Valley Authority (1986, ED Tenn) 648 F Supp 66,
Footnote 94. Coleman v Nolan (1988, SD NY) 693 F Supp 1544, 49 BNA FEP Cas 385,
49 CCH EPD 38700.
Footnote 95. Bornholdt v Brady (1989, CA2) 869 F2d 57, 49 CCH EPD 38770.
Footnote 96. Carraway v Postmaster General of United States (1988, DC Md) 678 F
Footnote 97. White v Department of Air Force (1987, ND Tex) 49 BNA FEP Cas 1038.
Footnote 98. Lavery v Marsh (1990, CA1 Mass) 918 F2d 1022, 54 BNA FEP Cas 1402,
55 CCH EPD 40399.
Footnote 99. Matthews v United States Postal Service (1989, ND NY) 49 BNA FEP Cas
311.
Footnote 1. Ramachandran v Postal Service (1987, CD Cal) 43 BNA FEP Cas 1759, affd
without op (CA9) 848 F2d 1243, 49 BNA FEP Cas 192, cert den 489 US 1082, 103 L
Ed 2d 843, 109 S Ct 1538, 49 BNA FEP Cas 560.
Footnote 3. Lubniewski v Lehman (1989, CA9 Cal) 891 F2d 216, 54 BNA FEP Cas
1409, 52 CCH EPD 39500.
Footnote 4. 2222.
Footnote 5. 2181.
Footnote 7. Lubniewski v Lehman (1989, CA9 Cal) 891 F2d 216, 54 BNA FEP Cas
1409, 52 CCH EPD 39500.
Footnote 8. Marks v Turnage (1988, ND Ill) 680 F Supp 1241, 46 BNA FEP Cas 382.
Footnote 10. Lavery v Marsh (1990, CA1 Mass) 918 F2d 1022, 54 BNA FEP Cas 1402,
55 CCH EPD 40399.
Footnote 11. Stevens v Dept. of Treasury (1991, US) 114 L Ed 2d 1, 111 S Ct 1562, 55
Footnote 12. 29 CFR 1614.408.

(5). Cases Under Other Laws [2197-2201]
2197 Title VI cases

View Entire Section
Title VI of the Civil Rights Act of 1964, 16 prohibiting discrimination in federally
assisted programs, contains no statute of limitations. Private enforcement actions are
governed by the most analogous state period of limitations. 17
Footnotes
Footnote 17. Chambers v Omaha Public School Dist. (1976, CA8) 536 F2d 222, 15 BNA
2198 Rehabilitation Act cases

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Go to Supplement
Section 504 of the Rehabilitation Act of Section 1973, which applies to discrimination
against handicapped workers by recipients of federal financial assistance, 18 does not
contain its own statute of limitations. Consequently, it has been held that the most
appropriate, 19 or clearly analogous 20 state statute of limitations applies.
With respect to federal employment complaints under 501 of the Act, 21 the remedies,
procedures, and rights set forth in Title VII's federal employment provisions 22 apply.
23 Thus, a number of courts have held that Title VII's limitation period is the limitation
period for handicap discrimination suits against the government. 24
Observation: The Civil Rights Act of 1991's amendment of Title VII 25 operates to
expand the period for filing complaints against the Federal Government under 501
from 30 to 90 days.
2198 ----Rehabilitation Act cases [SUPPLEMENT]

Practice Aids: What statute of limitations applies in actions under sec. 504 of
Rehabilitation Act of 1973 (29 USCS sec. 794), 120 ALR Fed 621.
Statutes:
In 1992, "disability" and variants of that term were substituted for "handicapped" and
variants throughout the Rehabilitation Act, including 29 USCS 7791.
Case authorities:
Because Rehabilitation Act has no statute of limitations, court must apply most
analogous state statute of limitations, and thus where terminated employee brought action
alleging discriminatory discharge in violation of 504 of Act (29 USCS 794) after
applicable state limitations period had expired, action must be dismissed as untimely.
McCullough v Branch Banking & Trust Co. (1994, CA4 NC) 35 F3d 127, 6 ADD 1012,
3 AD Cas 1025.
Obese patient's claim under 29 USCS 794 against urologist who refused to treat her
incontinence is not time-barred, where allegedly offending conduct occurred in April
1994 and suit was filed in November 1994, because applicable state statute of limitations
is Maryland's 3-year period covering general civil actions, not 6-month period governing
state human relations claims. Kohler v Shenasky (1995, DC Md) 914 F Supp 1206, 14
ADD 1271.
Kentucky's one-year statute of limitations for personal injury actions is applicable to
claims under 504 of Rehabilitation Act (29 USCS 794). Southerland v Hardaway
Management Co. (1994, CA6 Ky) 41 F3d 250, 8 ADD 390, 3 AD Cas 1566, reh, en
banc, den (1995, CA6 Ky) 1995 US App LEXIS 1408.
Ohio 2-year statute of limitations applicable to actions involving bodily injury or injury
to personal property does not bar claims by persons with mental retardation or
developmental disabilities who allege that they have been and are being denied
community placement by governmental entities in Ohio on account of their disabilities, in
violation of 29 USCS 794, where (1) alleged violations were part of continuous pattern
of alleged discrimination; and (2) at least one of alleged discriminatory incidents
occurred within 2 years from filing of complaint. Martin v Voinovich (1993, SD Ohio)
840 F Supp 1175, 43 Soc Sec Rep Serv 409, 4 ADD 1240.
In postal employee's discrimination suit against his employer alleging failure to provide
him reasonable accommodation for his disability under Rehabilitation Act (29 USCS
701 et seq.), trial court properly refused to reinstate claim after dismissing it as
time-barred under 30 day limitation period of 42 USCS 2000e-16(c), even though that
period was subsequently enlarged by Congress to 90 days so that employee's suit would
have been timely, where such retroactive application of amended statute would alter
substantive rights of defendant employer and increase its liability by forcing it to defend
action that was previously time-barred. Chenault v United States Postal Serv. (1994, CA9
Or) 37 F3d 535, 7 ADD 135, 94 CDOS 7673, 94 Daily Journal DAR 14074, 3 AD Cas
1185.
State's two-year limitations period for personal injuries, rather than thirty- day limitations
period from state's administrative appeal statute, will be applied to parents' claims under
504 of Rehabilitation Act (29 USCS 794) with respect to education of their
handicapped child. Andalusia City Bd. of Educ. v Andress (1996, MD Ala) 916 F Supp
1179, 15 ADD 505.
Navy employee's disability discrimination suit under 501 of Rehabilitation Act (29
USCS 791) is dismissed where employee first contacted Equal Employment
Opportunity counselor complaining of discrimination seven years after incident allegedly
occurred, rather than within 30 days as required by applicable regulations. Riddle v
Department of the Navy (1994, ED Pa) 7 ADD 154, 3 AD Cas 1204.
Plaintiff's claim for wrongful termination under 504 of Rehabilitation Act (29 USCS
794) was clearly time-barred, whether California's one-year statute of limitations for
personal injury actions or three-year statute of limitations for liability created by statute is
applied, since plaintiff was terminated more than 15 years before he filed action, and
there was no evidence to support plaintiff's allegation that defendants fraudulently
concealed material facts from him. Key v Housing Auth. (1994, ND Cal) 7 ADD 792.
2-year Illinois statute of limitations applicable to actions brought in Federal District
Court in Illinois under Rehabilitation Act of 1973 (29 USCS 701-797) is not tolled by
filing of disability discrimination claim with Illinois Department of Human Rights; thus,
plaintiffs' claims under 504(a) of Act (29 USCS 794(a)) were time-barred where they
filed their respective suits in Federal District Court more than 2 years after latest dates of
alleged discrimination, even though they had filed disability discrimination claims with
Illinois Department of Human Rights within month of such dates and administrative
proceedings were still pending when suits were filed. Cheeney v Highland Community
College (1994, CA7 Ill) 4 ADD 88, 2 AD Cas 1807.
Claim brought under 504 of (29 USCS 794) in Federal District Court in Maryland is
time-barred where claim is not filed within 6-month limitations period provided by
Maryland statute. Carrozza v Howard County (1994, DC Md) 4 ADD 842.
In action by former employee alleging in part that she was forced to resign because of
discrimination which violated 504 of (29 USCS 794), state's two-year personal injury
statute of limitations was applicable to claim, and cause of action accrued on date of
employee's resignation, even though she continued to work beyond that date until
resignation became effective. Holland v Allied Servs. for the Handicapped (1993, MD
Pa) 7 ADD 691, 3 AD Cas 132.
In absence of express statute of limitations, United States District Court for Northern
District of Illinois will borrow, for purposes of claims under 504 of Rehabilitation Act
(29 USCS 794) concerning education of child with disability, 2-year Illinois
limitations period for personal injury actions. Board of Educ. v Wolinsky (1993, ND Ill)
4 ADD 216.
Rehabilitation Act (29 USCS 791 et seq.) is governed by state statute of limitations
for personal injury actions, which is 3 years in New York; thus, 504 of Rehabilitation
Act (29 USCS 794) claims of former transit authority employee and former applicant
for such employment, in action commenced on June 6, 1990, against authority in Federal
District Court in New York, are barred by statute of limitations, where (1) applicant's
claim accrued on September 9, 1985, date his employment application was rejected as
result of positive drug test, and (2) employee's claim accrued on May 15, 1986, date he
was dismissed as result of positive drug test. Laverpool v New York City Transit Auth.
(1993, ED NY) 836 F Supp 1440, 4 ADD 353.
Footnotes
Footnote 19. Marin v New York State Dept. of Labor (1981, SD NY) 512 F Supp 353, 26
Footnote 20. Hutchings v Erie City & County Library Bd. of Directors (1981, WD Pa)
516 F Supp 1265, 27 BNA FEP Cas 363, 27 CCH EPD 32370; Tonnesson v Youville
Hospital (DC Mass) Slip Opinion Docket No. 84-315 MA, decided 7/5/84.
Footnote 24. Brown v United States Postal Service (1980, ND Ga) 28 BNA FEP Cas 825,
29 CCH EPD 32793; Dent v United States Postal Service (1982, SD Ohio) 538 F Supp
1079.
Footnote 25. 2181.
2199 Migrant and Seasonal Agricultural Worker Protection Act cases

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Because the Migrant and Seasonal Agricultural Worker Protection Act of 1983 26
contains no statute of limitations, the most analogous state statute of limitations is
applied. 27
Footnotes
Footnote 27. Martinez v Berlekamp Farms, Inc. (ND Ohio) No. C 85-7726, 5/8/86.
2200 Employee Polygraph Protection Act cases

View Entire Section
Private civil actions under the Employee Polygraph Protection Act must be commenced
within three years from the date of the alleged violation. 28
Footnotes
2201 Government Employee Rights Act of 1991

View Entire Section
Go to Supplement
Under the Government Employee Rights Act of 1991, a petition for review of a final
decision of the Select Committee on Ethics, or of the Office of Senate Fair Employment
Practices if no timely request for review by the Select Committee was filed, must be filed
in the United States Court of Appeals for the Federal Circuit within 90 days after entry of
the final decision. 29
2201 ----Government Employee Rights Act of 1991 [SUPPLEMENT]
Case authorities:
Civil Rights Act of 1991 applies retroactively to cases brought under that were pending at
time of its enactment; thus, successful plaintiffs are entitled to receive interest on their
backpay awards. Estate of Reynolds v Martin (1993, CA9 Cal) 985 F2d 470, 1 ADD
579, 93 CDOS 975, 93 Daily Journal DAR 1879, 2 AD Cas 512, 60 CCH EPD 42052
(disagreed with by Butts v New York Dept. of Housing Preservation & Dev. (CA2 NY)
61 BNA FEP Cas 579).
Footnotes
Footnote 29. P.L. 102-166 309(b)(3).
c. When Does Filing Period Begin [2202-2224]
(1). Title VII [2202-2217]

(a). Private Sector Cases [2202-2210]
2202 Receipt of right-to-sue notice

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Go to Supplement
Except in the case of continuing violations, 30 the Title VII 90-day private suit
limitations period 31 commences when the aggrieved party is notified by the EEOC of
his right to sue. 32 The Supreme Court has stated, 33 and other courts have held that
the 90-day suit filing period begins to run on the date the complainant receives the
right-to-sue notice, and not when the EEOC issues the notice. 34
Where a plaintiff secured a second right-to-sue notice based on a charge involving
exactly the same facts as the first notice, the timeliness of the action had to be determined
with reference only to the first notice. Otherwise, potential Title VII plaintiffs could
evade time limitations simply by seeking additional right-to-sue notices. 35 However,
where the EEOC issued a second right-to-sue notice to a Title VII claimant who had not
received or acted upon the first notice because of his attorney's malpractice, the
timeliness of the claimant's action was determined with respect to the second notice and
not the first. 36
The courts take different views on whether Title VII requires receipt of the notice by the
complainant only, 37 or permits receipt by another person, 38 such as the
complainant's attorney. 39
2202 ----Receipt of right-to-sue notice [SUPPLEMENT]
Case authorities:
Title VII plaintiffs have some obligation to monitor progress of their charges with EEOC
and do not have absolute right to wait until EEOC proceedings conclude; thus, whether
plaintiff's delay in requesting right to sue letter from EEOC is excusable depends on facts
of each case and is matter within district court's discretion. Hukkanen v International
Union of Operating Eng'rs, Hoisting & Portable Local No. 101 (1993, CA8 Mo) 3 F3d
281, 62 BNA FEP Cas 1125, 62 CCH EPD 42590, reh, en banc, den (CA8) 1993 US
App LEXIS 29826.
Plaintiff's Title VII action was not dismissed on timeliness grounds, even though action
had been filed more than 90 days after EEOC had issued right to sue letter, because
EEOC had not mailed letter to plaintiff's permanent address and had failed to send copy
of letter to plaintiff's attorney, EEOC issued second right to sue letter after receiving
letter from plaintiff's attorney requesting such letter, and plaintiff filed suit within 90 days
after receiving second right to sue letter. Ryczek v Guest Servs. (1995, DC Dist Col) 877
Footnotes
Footnote 30. 2209.
Footnote 31. 2179.
Footnote 34. Plunkett v Roadway Express, Inc. (1974, CA10) 504 F2d 417, 8 BNA FEP
Cas 817, 8 CCH EPD 9702; Rice v New England College (1982, CA1) 676 F2d 9, 28
BNA FEP Cas 1191, 28 CCH EPD 32604; Motley v Bell Tel. Co. (1983, ED Pa) 562 F
Footnote 35. Soso Liang Lo v Pan American World Airways, Inc. (1986, CA2 NY) 787
Footnote 36. Robinson v International Brotherhood of Electrical Workers Local 134
(1989, ND Ill) 1989 US Dist LEXIS 3539.
Footnote 37. 2203.
Footnote 38. 2203.
Footnote 39. 2208.
2203 Requirement of actual receipt by plaintiff

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Go to Supplement
Some courts hold that Title VII's 90-day suit filing period begins to run only on the date
the plaintiff himself actually receives the right-to-sue notice. 40 A plaintiff's Title VII
suit was not found to be untimely, where the plaintiff was not home on the day that the
EEOC's right-to-sue notice was delivered, and the plaintiff filed suit within 90 days after
actually receiving the notice, but not within 90 days of its delivery. 41
Under this view, delivery to, and acceptance by, someone other than the plaintiff is not
sufficient. Thus, it has been held that Title VII's suit filing period began on the date that
the claimant became aware of the right- to-sue notice and not on the earlier date that the
notice was accepted by his wife, 42 mother, 43 or father-in-law. 44
In contrast, other courts have ruled that the suit filing period is triggered by the claimant's
constructive receipt of the notice through delivery to, and acceptance by, a responsible
person who resides with the claimant. 45 For instance, the 90-day suit filing period
started when the right-to-sue notice was accepted by the claimant's wife, 46 mother, 47
and 17-year-old son. 48
The constructive receipt approach is applied on a case-by-case basis. 49
Actual receipt of a right-to-sue notice sent by certified mail was not established by the
Postal Service's notice of attempted delivery. The delivery notice could not be
reasonably construed to constitute notice of the mail's contents. 50
2203 ----Requirement of actual receipt by plaintiff [SUPPLEMENT]
Case authorities:
Title VII plaintiff, who filed her Title VII claims within 90 days of when she picked up
her right to sue letter at Post Office, but more than 90 days after Postal Service delivered
notice to her that she could pick up her letter at Post Office, did not timely file her claims.
Watts-Means v Prince George's Family Crisis Ctr. (1993, CA4) 7 F3d 40, 62 BNA FEP
Cas 1601, 62 CCH EPD 42569.
Where Title VII plaintiff has not received right to sue letter from EEOC before filing suit,
action is subject to dismissal without prejudice. Sheppard v Texas Dep't of Transp. (1994,
ED Tex) 158 FRD 592, 7 ADD 461, 3 AD Cas 1510.
Footnotes
Footnote 40. Archie v Chicago Truck Drivers, etc. (1978, CA7) 585 F2d 210, 20 BNA
FEP Cas 473, 99 BNA LRRM 2586, 17 CCH EPD 8632, 84 CCH LC 10853;
Killingham v Board of Governors of State Colleges & Universities (1982, ND Ill) 549 F
Footnote 41. Harris v Warner-Lambert Co. (1980, ND Ga) 486 F Supp 125, 25 BNA FEP
Cas 1006.
Footnote 42. Archie v Chicago Truck Drivers, etc. (1978, CA7) 585 F2d 210, 20 BNA
FEP Cas 473, 99 BNA LRRM 2586, 17 CCH EPD 8632, 84 CCH LC 10853; Croffut
v United Parcel Service, Inc. (1984, ED Mo) 575 F Supp 1264, 33 BNA FEP Cas 1245.
Footnote 43. Killingham v Board of Governors of State Colleges & Universities (1982,
Footnote 44. Fletcher v Royston (1982, DC Dist Col) 30 BNA FEP Cas 286, 31 CCH
EPD 33344.
Footnote 45. Bell v Eagle Motor Lines, Inc. (1982, CA11) 693 F2d 1086, 30 BNA FEP
Cas 951, 30 CCH EPD 33253; Law v Hercules, Inc. (1983, CA11) 713 F2d 691, 32
BNA FEP Cas 1291, 32 CCH EPD 33800; Mouriz v Avondale Shipyards, Inc. (1977,
ED La) 428 F Supp 1025, 24 BNA FEP Cas 887, 14 CCH EPD 7691.
Footnote 46. Bell v Eagle Motor Lines, Inc. (1982, CA11) 693 F2d 1086, 30 BNA FEP
Cas 951, 30 CCH EPD 33253.
Footnote 47. Krieger v Republic Van Lines, Inc. (1977, SD Tex) 435 F Supp 335, 15
Footnote 48. Law v Hercules, Inc. (1983, CA11) 713 F2d 691, 32 BNA FEP Cas 1291,
32 CCH EPD 33800.
Footnote 49. Law v Hercules, Inc. (1983, CA11) 713 F2d 691, 32 BNA FEP Cas 1291,
32 CCH EPD 33800.
The Fourth Circuit, under FRCP 6(e), will presume that a plaintiff received his Title VII
right-to-sue notice three days after it was mailed, but only if the parties dispute the actual
receipt date. Ish v Arlington County (1990, CA4 Va) 918 F2d 955, reported in full (CA4
Va) 18 FR Serv 3d 124, appeal after remand (CA4) 1991 US App LEXIS 27416.
Where a right-to-sue notice was sent by registered mail, the 90-day period began to run
when the plaintiff acknowledged its receipt in writing, not on the dates the postal carrier
left records of the attempted deliveries in the plaintiff's mailbox. Webb v American Red
Cross (1986, DC Neb) 652 F Supp 917, 42 BNA FEP Cas 924.
A pregnancy discrimination suit was not time-barred, where the EEOC informed the
plaintiff that it had dismissed her charge and that she should expect the right-to-sue
notice in the mail, the notice was sent by certified mail, but returned unclaimed, the
plaintiff never received either the letter or a notice that certified mail was waiting for her,
and the plaintiff called the EEOC several times to inquire about the letter, finally went to
the EEOC and picked up the notice, and filed her complaint the next day. Using the
Seventh Circuit's fault approach, the plaintiff who was unfamiliar with Title VII and
unrepresented by counsel could not be held to have had actual knowledge of the 90-day
limitation period, which, therefore, did not begin to run until she actually received the
notice. Trinkle v Bell Litho, Inc. (1986, ND Ill) 627 F Supp 764, 41 BNA FEP Cas 357.
Footnote 50. Menn v Amstar Corp. (1979, DC Md) 476 F Supp 303, 20 BNA FEP Cas
1422, 21 CCH EPD 30303.
2204 Effect of receipt of copy of notice

View Entire Section

Neither Title VII nor the EEOC's regulations require an original right-to- sue notice in
order to trigger the 90-day suit filing period. It has been held that the limitations period
started on the day that the plaintiff received a copy of the notice from her Congressman,
where the plaintiff never received the notice originally issued and sent to her, and asked
the Congressman to intercede on her behalf to obtain one. 51
Footnotes
Footnote 51. Billings v Wichita State University (1983, DC Kan) 557 F Supp 1348, 33
CCH EPD 34043.
2205 Effect of defective notice

View Entire Section
A notice was not rendered insufficient merely because it was incorrectly dated by the
EEOC, where the claimant did not allege that he was in any way misled by the EEOC. 52
However, the 90-day limitations period was not started by a letter that the plaintiff
received from EEOC, where the letter did not provide a clear indication of when the
90-day period commenced, and merely stated that she could request a document entitled
"90-day Notice of Right to Sue." 53 In addition, a defective notice that named only the
plaintiff's employer, but not her supervisor, did not trigger the 90-day limitations period.
Not until after the EEOC issued the notice as to the employer did the plaintiff learn that
her charge against the supervisor had not been transferred. She thereafter promptly
notified the EEOC, which reissued the notice, and thus triggered the 90-day period. 54
Footnotes
Footnote 52. Vargas v New York University Medical Center (1981, SD NY) 26 BNA
Footnote 53. Missirlian v Huntington Memorial Hospital (1981, CA9) 662 F2d 546, 27
Footnote 54. Weiss v Coca-Cola Bottling Co. (1991, ND Ill) 772 F Supp 407, 56 BNA
The form and contents of a right-to-sue notice are discussed in 1359.
2206 Effect of mailing to wrong address

View Entire Section
Quite often, courts have dealt with the claimant's failure to receive a Title VII
right-to-sue notice in the context of the EEOC's lack of the claimant's current address.
The claimant is responsible for furnishing the EEOC with notice of an address change or
prolonged absence from his current address. 55 In these instances, the focus of the
inquiry is whether failure to receive the notice is the claimant's fault, due to the claimant's
failure to keep the EEOC advised of his whereabouts. 56
If the claimant is at fault for failure to receive the notice, the 90-day limitations period
has been held to run from the date the notice was delivered to the most recent address
that the claimant furnished to the EEOC, 57 and from the fifth day after the date the
EEOC mails his right-to-sue notice to his address of record. 58 Furthermore, in those
circumstances, the Sixth Circuit has held that the period for filing suit will not be
equitably tolled 59 when the EEOC fails to send a copy of the right-to-sue notice to the
plaintiff's attorney, 60 since the plaintiff's burden to notify the EEOC of a change in
address is minimal and reasonable. 61 On the other hand, the Eleventh Circuit has held
that not only did a plaintiff meet her minimal responsibility to ensure receipt of the
notice, despite her change of address, by expressly requesting the EEOC to mail a copy
of it to her attorney, but also that since the EEOC did not comply with its own
requirement to send a copy to the plaintiff's attorney it bore the primary responsibility for
the failed delivery. Therefore, the limitations period began with the successful delivery
following the plaintiff's second request for the notice. 62
If, however, the claimant's failure to receive the notice is due to circumstances beyond his
control, the 90-day limitations period will not begin to run upon delivery of the notice to
the claimant's most recent address on record with the EEOC. 63
Footnotes
Footnote 56. Lewis v Conners Steel Co. (1982, CA11) 673 F2d 1240, 28 BNA FEP Cas
1170, 28 CCH EPD 32654.
Footnote 57. St. Louis v Alverno College (1984, CA7) 744 F2d 1314, 35 BNA FEP Cas
1715, 35 CCH EPD 34693.
Footnote 58. Hunter v Stephenson Roofing, Inc. (1986, CA6 Mich) 790 F2d 472, 40

Footnote 59. As to the tolling of the limitations period, see 2225 et seq.
Footnote 60. As to the effect of mailing the notice to the plaintiff's attorney, see 2208.
Footnote 61. Banks v Rockwell International North American Aircraft Operations (1988,
CA6 Ohio) 855 F2d 324, 47 BNA FEP Cas 1152, 47 CCH EPD 38211, later proceeding
(SD Ohio) 57 BNA FEP Cas 529, later proceeding (CA6) 1991 US App LEXIS 19687
and affd without op (CA6 Ohio) 941 F2d 1209, 57 BNA FEP Cas 688.
Footnote 62. Stallworth v Wells Fargo Armored Services Corp. (1991, CA11 Ala) 936
Footnote 63. Lewis v Conners Steel Co. (1982, CA11) 673 F2d 1240, 28 BNA FEP Cas
1170, 28 CCH EPD 32654.
Where a plaintiff notified the post office, but not the EEOC, of her change of address and
failed to receive her right-to-sue letter, she was not at fault and was allowed to bring suit
within 90 days after her attorneys received a copy of the letter. Ryan v Joseph's Bi-Rite
Market (1988, ED Cal) 688 F Supp 573, 48 BNA FEP Cas 310, 49 CCH EPD 38805.
A plaintiff's time limitation for filing suit began to run when her attorney received her
right-to-sue notice, since she failed to receive one and had taken reasonable steps to
ensure that she would receive it, by calling the EEOC to provide her new address, placing
an order to have the post office forward her mail, and renewing the order at the end of a
year. Jones v Michael Reese Hosp. (1991, ND Ill) 1991 US Dist LEXIS 7808.
The suit filing period did not begin to run when the notice was delivered to the claimant's
address, where, the claimant did not inform the EEOC of each change of address, but did
furnish the Commission with an alternate address at which she could be reached at any
time, and the EEOC did not go beyond the outdated address set forth in the charge.
Harris v Ford Motor Co. (1980, WD Mo) 487 F Supp 429, 22 BNA FEP Cas 922.
2207 Effect of rescission of notice

View Entire Section
Where the EEOC agrees to reconsider its determination and rescinds its Title VII
right-to-sue notice within 90 days after the notice is received by the claimant, the
claimant may file suit within 90 days after receipt of a second notice and does not have to
file within 90 days of receipt of the rescinded one. 64 The second notice is effective only
if the first notice is rescinded within 90 days after its issuance. 65
Observation: A claimant's mere request that the EEOC reconsider its decision does
not relieve the claimant from filing suit within 90 days after receiving a right- to-sue
notice.
Footnotes
Footnote 64. Gonzalez v Firestone Tire & Rubber Co. (1980, CA5) 610 F2d 241, 21
BNA FEP Cas 1367, 22 CCH EPD 30586. Trujillo v General Electric Co. (1980,
Footnote 65. Lute v Singer Co. (1982, CA9) 678 F2d 844, 28 BNA FEP Cas 1700, 29
CCH EPD 32846, reh den, amd (CA9) 696 F2d 1266, 34 BNA FEP Cas 1372.
2208 Receipt of notice by plaintiff's attorney

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The precise nature and extent of the attorney-client relationship controls whether Title
VII's 90-day suit filing period begins, when the right-to-sue notice is received by the
claimant's attorney. 66 The ultimate issue is actual knowledge that the 90-day suit filing
period had started. 67
Thus, in determining whether receipt by the attorney triggers the running of the
limitations period, the courts consider a number of factors, including:
the commencement date of the attorney-client relationship;
the attorney's authority both to receive and to open mail on the client's behalf; 68
whether the attorney (or client) requested that the notice be sent to the attorney; 69
whether the attorney was in fact representing the claimant when the notice was
received;
whether the EEOC had notice of the attorney's representation from either the claimant
or the attorney;
whether the attorney did in fact receive the right-to-sue notice;
the date on which the attorney received the notice; 70
whether and when the attorney personally acknowledged receipt of the notice; 71
the date on which the attorney advised the client of receipt of the notice;
whether and when the client received his own copy of the notice. 72
Observation: The Supreme Court has determined that an attorney's receipt of his
federal client's notice of final agency action automatically begins the Title VII
suit-filing limitations period. 73 Therefore, it is highly likely, given the broad
language of that opinion, that receipt of a right-to-sue notice by the office of a litigant's
attorney will also start the suit-filing time period in private actions under the statute.
2208 ----Receipt of notice by plaintiff's attorney [SUPPLEMENT]
Case authorities:
Date that Title VII plaintiff's attorney received notice of right to sue is irrelevant in
determining whether action was brought in timely manner. Martinez v United States
Sugar Corp. (1995, MD Fla) 880 F Supp 773, 67 BNA FEP Cas 1108, 8 FLW Fed D 689.
Footnotes
Footnote 66. Decker v Anheuser-Busch (1980, CA5) 632 F2d 1221, 24 BNA FEP Cas
888, 24 CCH EPD 31413, on reh, en banc (CA5) 670 F2d 506, 28 BNA FEP Cas 559,
28 CCH EPD 32536; Cumbow v Vermont American Corp. (1984, WD Va) 586 F Supp
873.
Footnote 67. Jones v Madison Service Corp. (1984, CA7) 744 F2d 1309, 35 BNA FEP
Cas 1711, 35 CCH EPD 34691.
559, 28 CCH EPD 32536, on remand (MD Fla) 558 F Supp 445, 31 BNA FEP Cas 446,
33 CCH EPD 34032.
Footnote 69. Harper v Burgess (1983, CA4) 701 F2d 29, 31 BNA FEP Cas 450, 31 CCH
EPD 33379; Gonzalez v Stanford Applied Engineering, Inc. (1979, CA9) 597 F2d
Footnote 70. Jones v Madison Service Corp. (1984, CA7) 744 F2d 1309, 35 BNA FEP
Cas 1711, 35 CCH EPD 34691.
Footnote 71. Thomas v KATV Channel 7 (1982, CA8) 692 F2d 548, 30 BNA FEP Cas
559, 28 CCH EPD 32536.
Footnote 73. Irwin v Veterans Administration (1990) 489 US 89, 112 L Ed 2d 435, 111
S Ct 453, 1 ADD 455, 90 CDOS 8829, 90 Daily Journal DAR 13670, 54 BNA FEP Cas
3, 54 BNA FEP Cas 577, 55 CCH EPD 40397, 18 FR Serv 3d 1, discussed at 2214.

View Entire Section
In Title VII cases, suit may be brought respecting discriminatory acts occurring before
the limitations period as long as the plaintiff establishes that the offending practice is an
ongoing one, 74 and that there is at least one fresh act of discrimination which occurred
within the relevant limitations period. 75
Footnotes
Footnote 74. Brown v Brown (1981, DC NJ) 528 F Supp 686.
Law Reviews: Reid, Confusion in the Sixth Circuit: The Application of the
Continuing Violation Doctrine to Employment Discrimination. 60 U. Cin. L. Rev.
1335 (1992).
Footnote 75. Hill v United States Postal Service (1981, SD NY) 522 F Supp 1283, 26
BNA FEP Cas 1426; Milton v Weinberger (1981) 207 App DC 145, 645 F2d 1070, 25
BNA FEP Cas 134, 25 CCH EPD 31595, later app (App DC) 696 F2d 94, 30 BNA FEP
The continuing violations doctrine has most frequently come into play with respect to the
timely filing of administrative charges, see 1232 et seq.
2210 Relation back of amended complaints or answers

View Entire Section
Under a variety of circumstances, an amendment to a complaint or answer can relate back
to the date of the original complaint or answer. For example, an amended complaint or
answer relates back to the original complaint or answer if the subject of the amendment
arose from the conduct, transaction, or occurrence described in the original complaint or
answer. 76 This is true even when the original complaint was dismissed by the state
court. 77
An amendment to assert a Title VII claim related back to a complaint of job
discrimination under 42 USCS 1981, where the 1981 claim was filed within 90 days
of the plaintiff's receipt of a Title VII right-to-sue letter and both claims were nearly
identical in alleging racial discrimination in employment. 78 Similarly, an amended
process served approximately one month after the expiration of the 90-day limitations
period related back, where the defendant first refused service of process within the
90-day period because the process described the defendant erroneously. 79
However, untimely claims of sex discrimination did not relate back to a complaint filed
under the Equal Pay Act, where the EPA suit was not filed during Title VII's 90-day suit
filing period, but rather 11 days after the plaintiff filed EEOC charges of sex
discrimination. 80
An amended complaint arising out of the conduct, transaction, or occurrence alleged in
an original complaint that has been removed to federal court 81 relates back to the
removed complaint. 82
Effective December 1, 1991, an amended complaint or answer also relates back to the
original complaint or answer if relation back is permitted by the law that governs the
limitations period applicable to the particular action. 83 FRCP 15(c)(1) has been applied
retroactively to amended complaints filed before December 1, 1991, 84 except when the
court felt that retroactive application would result in manifest injustice to the plaintiff. 85
Footnotes
Footnote 76. FRCP 15(c)(2).
Footnote 77. Donnelly v Yellow Freight System, Inc. (1989, CA7) 874 F2d 402, 49 BNA
FEP Cas 1253, 50 CCH EPD 38972, affd 494 US 820, 108 L Ed 2d 834, 110 S Ct
Footnote 78. Caldwell v Martin Marietta Corp. (1980, CA5) 632 F2d 1184, 24 BNA FEP
Cas 864, 24 CCH EPD 31411.
Footnote 79. Lucas v Aetna Casualty & Surety Co. (1982, DC Colo) 540 F Supp 1387,
29 BNA FEP Cas 233.
Footnote 80. Lancaster v Holt, Rinehart & Winston, Inc. (1983, ND Fla) 31 BNA FEP
Cas 1390, 32 CCH EPD 33745.
Footnote 82. Robyn v Phillips Petroleum Co. (1991, DC Colo) 774 F Supp 587, 56 BNA
FEP Cas 167.
Footnote 83. FRCP 15(c)(1).
Footnote 84. First CircuitBoliden Metech, Inc. v United States (1991, DC RI) 140 FRD
254.
Seventh CircuitRenslow v City of Chicago (1992, ND Ill) 1992 US Dist LEXIS 357.
Eleventh CircuitHill v U.S. Postal Service (1992, CA11) 961 F2d 153, 58 BNA FEP
Cas 1297, 58 CCH EPD 41476.

Footnote 85. Freund v Fleetwood Enterprises, Inc. (1992, CA1) 956 F2d 354.
(b). Federal Employment Cases [2211-2215]
2211 Receipt of notice of final agency action

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A federal employee has 30 days in which to file a Title VII civil action following receipt
of either a notice of final action on his Title VII claim by the federal agency involved, or
by the EEOC on an appeal from the decision of the federal agency. 86 This limitation
period for federal employees is jurisdictional and therefore not waivable, because of
sovereign immunity. 87
Courts have ruled that the 30-day limitations period did not begin to run when proper
notice was unsuccessfully delivered to the plaintiff's address, 88 when the federal
employee's right-to-sue notice arrived at his post office box by certified mail, 89 or when
the agency failed to produce any evidence indicating if or when the notice was actually
received by the plaintiff. 90 However, there is a presumption that a letter properly
mailed is received by the addressee in the due course of the mails, and the fact that a
letter was properly mailed may be established by evidence that it is the custom and
practice of the mailer to mail a letter shortly after it is written. Hence, despite a plaintiff's
testimony that he had not received the EEOC's final decision until more than two years
after it was rendered, when he requested a copy, it was found that the notice in fact
reached him two years earlier, based on uncontested evidence that it was the EEOC's
custom and practice to mail a copy of its final decision to all parties in a case shortly after
rendering the decision. 91
2211 ----Receipt of notice of final agency action [SUPPLEMENT]
Case authorities:
EEOC charge that was not verified may be amended so as to add verification, and such
verification may relate back, but only so long as charge is viable one in EEOC's files;
thus, if right to sue letter has already issued, suit has been instituted and EEOC has closed
its file, there is no longer charge pending before EEOC which is capable of be ing
amended. Balazs v Liebenthal (1994, CA4 Va) 32 F3d 151, 65 BNA FEP Cas 993.
Footnotes
As to the available period for filing, see 2180.

Footnote 87. Jackson v Thomas (1989, SD NY) 54 BNA FEP Cas 1087, 50 CCH EPD
39015; Brown v Department of Army (1988, CA5 Tex) 854 F2d 77, 47 BNA FEP Cas
1558, 47 CCH EPD 38184, 12 FR Serv 3d 110.
Footnote 88. Fizer-Bullock v U.S. Dept. of Housing & Urban Dev. (1985, DC Dist Col)
37 BNA FEP Cas 1601, even though the plaintiff had failed to notify the EEOC of her
change of address, and the notice of final agency action and right-to-sue was returned to
the EEOC by the post office as undeliverable, but suit was filed within 30 days after the
plaintiff's attorney requested the right-to-sue notice.
Footnote 89. Sousa v NLRB (1987, CA2 NY) 817 F2d 10, 43 BNA FEP Cas 1057, 43
CCH EPD 37114, holding that it began when he picked up the letter, since he receipt of
the notice in his post office box could not be construed as constructive possession where
the five-day delay between delivery at the post office box and actual receipt was not
unreasonable.
Footnote 90. Ward v Califano (1977, DC Dist Col) 443 F Supp 89, 18 BNA FEP Cas
887.
Footnote 91. Battaglia v Heckler (1986, SD NY) 643 F Supp 558, 45 BNA FEP Cas
1110.
2212 When is agency action final

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Go to Supplement
An agency decision is final for statute of limitations purposes only when the agency
makes a determination on all the issues in the complaint, including whether to award
attorney's fees and costs. If a determination to award attorney's fees is made, the decision
will not be final until the specified procedure is followed for determining the amount of
the award. 92 Similarly, an EEOC decision on appeal of an MSPB decision is not final
unless it disposes of every issue raised in the appeal, regardless of whether the ensuing
civil action is limited to issues that were disposed of in the EEOC decision. There is no
statutory authority for severance of issues by the EEOC in appeals of MSPB
determinations, and most courts have preferred to take a unitary approach to such
matters. 93
The DC Circuit has ruled that an initial decision by the EEOC on a federal employee's
Title VII claim is not a "final decision" where, within the 30-day period following the
employee's receipt of the decision, the employee files a request with the Commission for
reconsideration of its decision. The court reasoned that (1) an administrative order is
generally not final for purposes of judicial review until outstanding requests for
reconsideration of the decision have been addressed; (2) judicial economy will be
promoted by encouraging federal Title VII grievants to exhaust administrative remedies;
(3) the grievant will face a reduced risk of having his Title VII action dismissed by a
court for failure to exhaust administrative remedies; and (4) Title VII enforcement
depends upon laymen and thus must be interpreted in a manner consistent with its broad
humanitarian purposes, making particularly inappropriate a resort to technicalities to
foreclose a claimant's resort to the judicial process. 94
Caution: It is counsel's responsibility to check pertinent regulations that explain the

limited character of final relief granted to a plaintiff by a final agency decision. For
example, if counsel relies on interpretations of agency procedures given to him by
agency personnel which turn out to be incorrect, and the complaint is not filed within
30 days of the decision, a late filing will not be excused. 95
2212 ----When is agency action final [SUPPLEMENT]
Regulations:
Case authorities:
Male Filipino auditor denied promotion to Field Audit Supervisor has 42 USCS 1981
claim dismissed as untimely, even though he claims his bid for promotion was not finally
denied until January 29, 1992 when his internal grievance was denied, where auditor was
informed he did not receive promotion in June 1991 and did not file suit until September
1, 1993, because statute of limitations applicable to 1981 claims in Illinois is 2 years.
Vitug v Multistate Tax Comm'n (1994, ND Ill) 860 F Supp 546.
Footnotes
Footnote 92. 29 CFR 1613.281, 1613.641(a).
Footnote 93. Gomez v Department of Air Force (1989, CA5 Tex) 869 F2d 852, 49 BNA
Footnote 94. Nordell v Heckler, (1984, App DC) 749 F2d 47, 36 BNA FEP Cas 695, 35
CCH EPD 34807.
Footnote 95. Roth v Naval Aviation Supply Office (1978, ED Pa) 443 F Supp 413, 16
BNA FEP Cas 760.
2213 Sufficiency of notice of final agency action

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Go to Supplement
The notice of final action by the federal agency or the decision by the EEOC on appeal to
the aggrieved individual is not sufficient to start the time running in which a civil action
may be brought if it fails to inform the individual of his right to file an action. 96
However, there is authority to the contrary. 97
2213 ----Sufficiency of notice of final agency action [SUPPLEMENT]
Practice Aids: Protection of Constitutional Guarantees Under 42 USCS 1985(3):
Operation Rescue's "Summer of Mercy", Sullivan, 49 Wash & Lee LR No. 1 P 237
(Winter 1992).
Footnotes
Footnote 96. First CircuitFischer v U. S. Dept. of Transp. (1977, DC Mass) 430 F Supp
1349, 18 BNA FEP Cas 665, affd in part and revd in part (CA1) 572 F2d 406, 18 BNA
Third CircuitAllen v United States (1976, CA3) 542 F2d 176, 13 BNA FEP Cas 750,
12 CCH EPD 11189.
Ninth CircuitMahroom v Hook (1977, CA9) 563 F2d 1369, 16 BNA FEP Cas 130, 15
Cas 699, 16 CCH EPD 8291.
DC CircuitWilliams v Hidalgo (1980) 214 App DC 6, 663 F2d 183, 24 BNA FEP Cas
841, 24 CCH EPD 31391.
Footnote 97. Eastland v Tennessee Valley Authority (1977, CA5) 553 F2d 364, 14 BNA
2214 Constructive receipt of agency action notice by plaintiff's representative

View Entire Section
The Supreme Court has determined that the receipt of a notice of final agency action 98
by a federal plaintiff's formally designated counsel begins the running of the 30-day
suit-filing time limit. Under the system of representative litigation, every party is
deemed bound by notices delivered to his lawyer-agent. Furthermore, the notice will
start the time period running if it is acknowledged to be received by a representative of
the office of that attorney, even if the attorney is not personally notified of the receipt
until sometime later. 99
Footnotes
Footnote 98. 2211.
Footnote 99. Irwin v Veterans Administration (1990) 489 US 89, 112 L Ed 2d 435, 111
S Ct 453, 1 ADD 455, 90 CDOS 8829, 90 Daily Journal DAR 13670, 54 BNA FEP Cas
3, 54 BNA FEP Cas 577, 55 CCH EPD 40397, 18 FR Serv 3d 1, discussed at 2214.
2215 Effect of premature federal employment complaint

View Entire Section
If a complaint is filed prematurely, the court has authority to decide the matter where the
plaintiff is apprised of the final agency disposition of his complaint by the time of trial
and where a decision on the merits would be both expeditious and fair to the parties. 1
Footnotes
Footnote 1. Johnson v United States Postal Service (1973, ND Fla) 364 F Supp 37, 6
8 CCH EPD 9548.
(c). Cases Involving Other Governmental Entities and Political Subdivisions [2216,
2217]
2216 Receipt of right-to-sue notice

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Go to Supplement
The 90-day period for filing Title VII suits against non-Federal Governmental entities
and political subdivisions 2 begins to run when the claimant receives notice of the right
to sue from the Attorney General. 3
2216 ----Receipt of right-to-sue notice [SUPPLEMENT]
Case authorities:
In disability discrimination action under 501 of Rehabilitation Act (29 USCS 791)
which was brought by letter carrier who was terminated from his position with U.S.
Postal Service, receipt of EEOC right-to-sue letter by letter carrier's wife at letter carrier's
address triggered start of 30-day limitations period for filing action in federal district
court, and thus letter carrier's action was time-barred where suit was filed 34 days after
wife's receipt of letter. Million v Frank (1995, CA10 Okla) 47 F3d 385, 8 ADD 781, 67
BNA FEP Cas 254.
Footnotes
Footnote 2. 2182.
Footnote 3. 42 USCS 2000e- 5(f)(1).
2217 Reissuance of notice

View Entire Section
Although the Attorney General is authorized to issue notices of right-to- sue when the
EEOC finds probable cause against governmental entities, fails to conciliate, and refers
the cases to the Justice Department, he may not rescind a notice after reconsideration of a
claim by issuing a second notice, unless notice of the intent to reconsider has been served
within the 90-day period following service of the first notice of right-to-sue. 4
Footnotes
Footnote 4. Dougherty v Barry (1989) 276 US App DC 167, 869 F2d 605, 49 BNA FEP
Cas 289, 49 CCH EPD 38786.
(2). Cases Under the Early Civil Rights Acts [2218- 2220]
2218 Applicability of federal principles governing commencement of limitations

periods
View Entire Section
Although the limitations period for job discrimination suits under 42 USCS 1981 is
governed by state law, 5 federal legal principles control the accrual of a 1981 cause
of action. 6
Caution: All cases decided before June 15, 1989, under 1981, are still valid
precedent for the time limitations principles they expound. However, they were
decided before the Supreme Court determined in Patterson that 1981 does not apply
to discriminatory employment practices occurring after contract formation, only to
hiring and promotion situations in which a person's ability to make and enforce
contracts is impaired. 7
Footnotes
Footnote 6. McWilliams v Escambia County School Bd. (1981, CA5) 658 F2d 326, 27
Footnote 7. As to the Patterson case, see 7.
2219 Occurrence or discovery of alleged violation

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Except in the case of continuing violations, 8 the statute of limitations for 1981, 9
1983, 10
and 1985 11 cases begins to run when the alleged discriminatory act
occurs. In determining when the limitations period begins, the focus is on the
discriminatory act and not the point in time when the "consequences of the act become
painful." 12
Thus, the suit filing period begins immediately upon the completion of a
single act of discrimination, such as a discriminatory transfer, 13 layoff, 14 or
discharge. 15
In some cases, the discriminatory nature of an adverse action may not become apparent
until long after its occurrence. In these circumstances, some courts have applied imputed
knowledge standards. Thus, it has been declared that the cause of action accrues when
the plaintiff knew or should have known that the discriminatory act occurred. 16
Another formulation mandates that the filing period not begin until facts supportive of an
action are or should be apparent to a reasonably prudent person similarly situated. 17
2219 ----Occurrence or discovery of alleged violation [SUPPLEMENT]
Case authorities:
Police officer's 42 USCS 1983 claim alleging that city, county and officials conspired
to deny him his civil rights in conjunction with disciplinary action taken against him was
not time barred, where later, more detailed written decision terminating officer's
employment rather than prior oral decision triggered statute of limitations; written
decision supplied rationale for decision to fire officer, addressed defenses raised by
officer, and set dates for officer's suspension. McCoy v San Francisco, City & County
(1994, CA9 Cal) 14 F3d 28, 94 CDOS 196, 94 Daily Journal DAR 330.
Footnotes
Footnote 8. 2220.
Footnote 9. Delaware State College v Ricks (1980) 449 US 250, 66 L Ed 2d 431, 101 S
Ct 498, 24 BNA FEP Cas 827, 24 CCH EPD 31393; Dumas v Mt. Vernon (1980, CA5)
Caution: All cases decided before June 15, 1989, under 1981 are still valid
precedent for the time limitations principles they expound. However, they were
contracts is impaired. As to the Patterson case, see 7.
Ct 1042.
Footnote 11. Griffin v Pacific Maritime Asso. (1973, CA9) 478 F2d 1118, 5 BNA FEP
Ct 1042.
Footnote 13. Guerra v Manchester Terminal Corp. (1974, CA5) 498 F2d 641, 8 BNA
FEP Cas 433, 8 CCH EPD 9584, 74 CCH LC 10248, reh den (CA5) 503 F2d 567.
Footnote 14. Griffin v Pacific Maritime Asso. (1973, CA9) 478 F2d 1118, 5 BNA FEP
Footnote 15. Pike v Mission (1984, CA10 Kan) 731 F2d 655; King v Seaboard C. L. R.
Co. (1976, CA4) 538 F2d 581, 13 BNA FEP Cas 122, 11 CCH EPD 10877.
Footnote 16. Cervantes v IMCO, Halliburton Services (1984, CA5) 724 F2d 511, 34
BNA FEP Cas 13, 33 CCH EPD 34133; Stafford v Muscogee County Bd. of Education
449 US 913, 66 L Ed 2d 141, 101 S Ct 288; Conerly v Westinghouse Electric Corp.

View Entire Section
Go to Supplement
The continuing violation doctrine 18 applies to job discrimination suits under 42 USCS
1981. Thus, the statute of limitations is triggered on the date of the last violation, 19
if the plaintiff can show that past discriminatory acts continued on account of a purported
discriminatory policy carried forward into the limitations period that had an adverse
effect on employees. 20
Whether there is a continuing violation depends on the facts of each case. 21
continuing violations doctrine has been applied to:
The
discriminatory placements and denials of promotions; 22

discrimination in compensation; 23
the discriminatory denial of seniority rights. 24
However, the Supreme Court rejected a college teacher's claim that the discrimination
that motivated the college to deny him tenure and terminate his employment amounted to
a continuing violation under 1981 during the time between the tenure denial and his
termination. The court ruled that the limitations period did not begin to run when the
teacher was terminated, on the grounds that mere continuity of employment, without the
identification of the allegedly discriminatory acts continuing up to the time of
termination, was not sufficient to support a claim of a continuing violation. 25
Similarly, an employer's continuing failure to recall a black employee from a layoff was
not a continuing violation under 1981. Rather, the recall of less senior white
employees triggered the running of the limitations period. 26 Furthermore, payments
received under a racially neutral pension plan did not amount to a continuing violation
under 1981, even though the payments had been reduced because the employee had
been discriminatorily denied promotion while working for the employer. 27
Finally,
employees failed to allege a continuing violation of their rights even though they alleged
a continuous policy of racial discrimination in promotion, including the use of
discriminatory promotional exams and reliance on subjective criteria in the promotion
process. 28
Caution: All cases decided before June 15, 1989, under 1981, are still valid
precedent for the continuing violations principles they expound. However, they were
contracts is impaired. 29
In a due process action under 42 USCS 1983, a continuing violation was not presented
by a university's refusal to grant a discharged employee an adversarial post-termination
grievance hearing, where the refusals occurred both before and after the employee was
discharged. The court ruled that the employee could not resurrect his stale termination
claim by merely requesting the same type of hearing that was initially denied him and
prompting a new refusal within the limitations period of his lawsuit. The university did
not commit a continuing violation by refusing to change its original decision concerning
the type of hearing that would be accorded the employee. 30
2220 ----Continuing violations [SUPPLEMENT]
Practice Aids: Right to jury trial in action under state civil rights law. 12 ALR5th
508.
Footnotes
Footnote 18. As to the continuing violation doctrine, see 2232.
Footnote 19. Fourth CircuitChappelle v E. I. Du Pont de Nemours & Co. (1980, ED
Va) 497 F Supp 1197, 24 BNA FEP Cas 469, 26 CCH EPD 31874.
Fifth CircuitBernard v Gulf Oil Co. (1979, CA5) 596 F2d 1249, 19 BNA FEP Cas
1682, 20 CCH EPD 30001, on reh, en banc (CA5) 619 F2d 459, 23 BNA FEP Cas 20,
23 CCH EPD 31029, affd 452 US 89, 68 L Ed 2d 693, 101 S Ct 2193, 25 BNA FEP
Cas 1377, 26 CCH EPD 31841.
Sixth CircuitMarlowe v Fisher Body (1973, CA6) 489 F2d 1057, 6 BNA FEP Cas
1083, 6 CCH EPD 8997.
Eighth CircuitAllen v Amalgamated Transit Union (1977, CA8) 554 F2d 876, 14 BNA
Footnote 20. Williams v Owens-Illinois, Inc. (1982, CA9) 665 F2d 918, 27 BNA FEP
Cas 1273, 28 CCH EPD 32404.
Footnote 21. Second CircuitGill v Monroe County Dept. of Social Services (1978, WD
NY) 79 FRD 316, 19 BNA FEP Cas 540.
Third CircuitBurris v Wright Constr. Co. (1978, DC Del) 459 F Supp 157, 18 BNA
FEP Cas 522.
Fifth CircuitProphet v Armco Steel, Inc. (1978, CA5) 575 F2d 579, 17 BNA FEP Cas
1160, 17 CCH EPD 8425.
Ninth CircuitGriffin v Pacific Maritime Asso. (1973, CA9) 478 F2d 1118, 5 BNA FEP

Footnote 22. Williams v Owens-Illinois, Inc. (1982, CA9) 665 F2d 918, 27 BNA FEP
Cas 1273, 28 CCH EPD 32404.
Footnote 23. Chappelle v E. I. Du Pont de Nemours & Co. (1980, ED Va) 497 F Supp
Footnote 24. Allen v Amalgamated Transit Union (1977, CA8) 554 F2d 876, 14 BNA
Footnote 26. Burris v Wright Constr. Co. (1978, DC Del) 459 F Supp 157, 18 BNA FEP
Cas 522.
Footnote 27. Alston v Allegheny Ludlum Steel Corp., Div. of Allegheny Ludlum
Industries, Inc. (1978, WD Pa) 449 F Supp 553, rereported (WD Pa) 465 F Supp 171, 19
2886, 20 CCH EPD 30031.
Footnote 28. Gill v Monroe County Dept. of Social Services (1978, WD NY) 79 FRD
316, 19 BNA FEP Cas 540.
109 S Ct 2363, 49 BNA FEP Cas 1814, 50 CCH EPD 39066, discussed at 7.
Footnote 30. Garland v Shapiro (1984, ED Mich) 579 F Supp 858.
(3). Cases Under Other Laws [2221-2224]
2221 Equal Pay Act cases

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Go to Supplement
Violations of the Equal Pay Act are continuing violations that accrue on each payday. 31
Thus, a timely action under the EPA was instituted four years after the plaintiff was hired
and was not barred by the Act's three-year statute of limitations for willful violations, 32
where the plaintiff alleged that the employer continued to pay a lower salary to
psychiatric social workers, most of whom were women, than to psychiatric psychologists,
most of whom were men. 33
In another case applying the continuing violation doctrine, a plaintiff's EPA suit was
timely under the two-year limitations period, where she alleged and produced evidence of
several violations during the period which were not inevitable neutral consequences of
the alleged discriminatory practice. The plaintiff alleged that the defendant decided to
pay her less than the minimum salary of her level, failed to give her bonuses and other
perquisites of the position, and failed to raise her salary promptly in accordance with its
policy to reach the minimum for her level. These acts were independent violations, and
not just the inevitable effects of an unlawful initial job classification. 34
2221 ----Equal Pay Act cases [SUPPLEMENT]
Case authorities:
Under Equal Pay Act, plaintiff's action will not be time-barred as long as at least one
forbidden discriminatory act occurs within relevant limitations period; it is irrelevant that
employer has committed identical illegal acts prior to limitations period. Gandy v
Sullivan County (1994, CA6 Tenn) 24 F3d 861, 64 BNA FEP Cas 1607, 2 BNA WH Cas
2d 44, 128 CCH LC 33094, 1994 FED App 168P, reh, en banc, den (CA6) 1994 US
App LEXIS 16816.
For purposes of statute of limitations, Equal Pay Act is violated each time employer
presents "unequal" paycheck to employee for equal work; consequently, cause of action
may be brought for any or all violations occurring within limitations period immediately
prior to commencement of action. Moten v American Linen Supply Co. (1995, DC Kan)
Footnotes
Footnote 31. First CircuitEEOC v McCarthy (1985, CA1) 768 F2d 1, 38 BNA FEP
Cas 536, 27 BNA FEP CAS 381).
Fourth CircuitJenkins v Home Ins. Co. (1980, CA4) 635 F2d 310, 24 BNA FEP Cas
990, 24 CCH EPD 31405.
Fifth CircuitHodgson v Behrens Drug Co. (1973, CA5) 475 F2d 1041, 9 BNA FEP Cas
Sixth CircuitVandenhout v Manchester Plastics, Inc. (1982, ED Mich) 538 F Supp 401,
34 BNA FEP Cas 826.
Footnote 33. Schulte v New York (1981, ED NY) 533 F Supp 31.
Footnote 34. Van Heest v McNeilab, Inc. (1985, DC Del) 624 F Supp 891, 39 BNA FEP
Cas 1190, 27 BNA WH Cas 809, 40 CCH EPD 36390.
2222 ADEA suits against nonfederal employers

View Entire Section
The 90-day period for filing ADEA suits against nonfederal employers 35 begins to run
when the complainant has received notice from the EEOC that his charge has been
dismissed or that proceedings have been otherwise terminated, 36 as required by the
Civil Rights Act of 1991. 37
Before the Civil Rights Act of 1991, the ADEA made no provision for the issuance of a
right-to-sue notice. Instead, the ADEA's two or three-year statute of limitations began to
run on the date that the discriminatory act occurred, which was the same day that the
charge filing period began and not on the date that the charge was filed. 38
With
passage of the Civil Rights Act of 1991, Congress intends that the complainant's receipt
of a right-to-sue notice be the triggering event for limitations purposes under both the
ADEA and Title VII. 39
Observation: Since the complainant's receipt of notification from the EEOC is the
triggering event for limitations purposes both under the ADEA and Title VII, court
opinions concerning the sufficiency of notice and different means of delivering notice
under Title VII 40 may be relied on by courts facing these issues under the ADEA.
Under the ADEA, as under Title VII, an amended complaint "relates back" 41 to the
date of the original complaint if the amended complaint arises out of the same conduct
upon which the original complaint was based. 42
Lack of knowledge of the discriminatory actions and the reasons for such lack of
knowledge can be considered as grounds for tolling the limitations period. 43
Footnotes
Footnote 35. 2193.
Footnote 37. P.L. 102-166, 115.
Footnote 39. H Rept No. 102-40, Part 1, 4/24/91, pp. 96,97.
Footnote 40. As to the sufficiency of notice under Title VII, see 2214 et seq.
Footnote 41. 2210.
Footnote 42. Hayes v Candle Corp. of America (1989, ND Ill) 1989 US Dist LEXIS 744.
Footnote 43. Scheller v Hydrotherm, Inc. (1989, DC Md) 728 F Supp 377, 51 BNA FEP
Cas 979; Davidson v Board of Governors (1990, CA7) 920 F2d 441, 54 BNA FEP Cas
956, 55 CCH EPD 40425.
2223 ADEA suits against federal employers

View Entire Section
Unlike for ADEA suits against nonfederal employers, 44 Congress has not specified a
limitations period for ADEA suits against the Federal Government. Therefore, depending
on which limitations period is considered applicable by the courts, and whether the
complainant has resorted to the ADEA's administrative processes, the limitations period
will begin on different dates.
The Supreme Court, in a case concerning the notice of intent to sue requirement for
federal employees or applicants who choose to sue directly in federal court, 45 refused
to decide what the statute of limitations for such actions should be, stating only that a
claim filed one year and six days after the alleged discrimination was well within
whatever statute of limitations might apply. 46
The EEOC's position is that Title VII's 90-day limitations period should be borrowed for
federal sector ADEA lawsuits when the complainant has filed an administrative charge.
47 When a claim is brought directly in court without prior filing of an administrative
charge, the plaintiffs should file as soon as possible after the expiration of the required
waiting period. 48
In circuits in which courts use the ADEA private sector limitations period that was in
effect before the Civil Rights Act of 1991, 49 the period for filing suit against federal
employers begins on the date the plaintiff was discriminated against or received notice of
alleged discrimination. 50
In circuits in which courts apply Title VII's limitations period for filing federal
employment suits to federal employment cases initiated by administrative charges under
the ADEA, the period begins to run when notice of final agency or EEOC action is
received. 51
Observation: Title VII's limitations period for suits against federal employers was
only 30 days when these decisions were issued. It has since been extended to 90 days.
52 Therefore, courts which apply Title VII's limitations period to federal employment
cases initiated by administrative charges under the ADEA may apply the 90-day filing
period to these situations in the future.
In the absence of any specifically applicable statute of limitations on ADEA actions
concerning federal employment, some courts have urged a third alternativethe general
six-year statute of limitations for actions against the United States (28 USCS 2401(a)).
53 However, the First Circuit rejected using the six- year limitations period in federal
employment ADEA actions because there was no clear manifestation from Congress that
it intended a radically longer limitations period under the ADEA than under Title VII. 54
The relation-back doctrine applicable to subsequent complaints against nonfederal
employers 55 also applies in a federal employment case. 56
If the alleged ADEA violation has been appealed to the Merit Systems Protection Board
under the Civil Service Reform Act, 57 the 30-day limitations period for filing a judicial
review action 58 begins when the employee or applicant receives notice of the Board's
final decision or order. 59
Footnotes
Footnote 44. 2222.
Footnote 46. Stevens v Dept. of Treasury (1991, US) 114 L Ed 2d 1, 111 S Ct 1562, 55
Footnote 47. 29 CFR 1614.408.
Footnote 48. 57 Fed Reg 12641, 4/10/92.
Footnote 49. 2222.
Footnote 50. Wiersma v Tennessee Valley Authority (1986, ED Tenn) 648 F Supp 66, 41
BNA FEP Cas 1588, 41 CCH EPD 36518; Lubniewski v Lehman (1989, CA9) 891 F2d
216, 54 BNA FEP Cas 1409.
Footnote 51. First CircuitLavery v Marsh (1990, CA1) 918 F2d 1022, 54 BNA FEP
Cas 1402, 55 CCH EPD 40399.
Fourth CircuitCarraway v Postmaster General (1988, DC Md) 687 F Supp 125, 45
Fifth CircuitWhite v Dept. of the Air Force (1987, ND Tex) 49 BNA FEP Cas 1309,
affd without op (Fed Cir) 835 F2d 871.
Footnote 52. 2181.
Footnote 53. Lubniewski v Lehman (1989, CA9) 891 F2d 216, 54 BNA FEP Cas 1409,
52 CCH EPD 39500; Marks v Turnage (1988, ND Ill) 680 F Supp 1241, 46 BNA FEP
Cas 382.
Footnote 54. Lavery v Marsh (1990, CA1) 918 F2d 1022, 54 BNA FEP Cas 1402, 55
CCH EPD 40399.
Footnote 55. 2222.

2224 Rehabilitation Act suits

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The limitation periods for a suit under 504 of the Rehabilitation Act of 1973 60 is
triggered by the occurrence of the alleged discrimination. 61 The 90-day limitations
period for an action by a federal employee or applicant under 501 begins with receipt of
notice of final action by the federal agency involved or by the EEOC on appeal from the
agency's decision. 62 The finality of EEOC decisions is unaffected by requests to
reopen the proceedings. 63
When an employee's disability is subject to change because it may ease or the employer
may be able to accommodate the employee's physical restrictions, a new and independent
violation of 504 occurs each time the employee is refused reinstatement or hiring to the
desired position. Thus, each refusal by the employer to hire the plaintiff for permanent or
seasonal employment, allegedly because of his disability, was an independent act with its
own limitations period, and not merely a neutral act that continued the consequence of
the first discriminatory refusal. 64
As under Title VII, 65 the continuing violation doctrine may be applied to continuing
courses of discriminatory action under 504 66 and 501 of the Rehabilitation Act of
1973. However, a single demotion without evidence of a discriminatory pattern or
practice does not constitute a continuing course of action. 67
When the alleged 501 violation has been appealed to the Merit Systems Protection
Board under the Civil Service Reform Act, 68 the 30-day limitations period for filing a
judicial review action 69 begins when the employee or applicant receives notice of the
Board's final decision or order. 70
2224 ----Rehabilitation Act suits [SUPPLEMENT]
Case authorities:
Where plaintiff brought action under 29 USCS 794 alleging that she was forced to
resign because of harassment and intimidation which her supervisors subjected her to in
relation to her disability, plaintiff's cause of action accrued and statute of limitations
began to run on date plaintiff submitted her resignation, even though her resignation was
not effective for several weeks and she continued to work during that time. Holland v
Allied Servs. for the Handicapped (1993, MD Pa) 7 ADD 691, 3 AD Cas 132.
Footnotes
Footnote 60. 2198.
Footnote 61. Tonnessen v Youville Hospital (1984, DC Mass) 35 CCH EPD 34898;
Marin v New York State Dept. of Labor (1981, SD NY) 512 F Supp 353, 26 BNA FEP
Cas 1442, 26 CCH EPD 31850.
Footnote 63. Bullard v Lyng (1989, ED NC) 749 F Supp 711, 56 BNA FEP Cas 435, affd
(CA4) 1990 US App LEXIS 17325, cert den (US) 114 L Ed 2d 99, 111 S Ct 2012, 56
BNA FEP Cas 776; Hanger v U.S. Post Office (1984, MD Fla) 34 BNA FEP Cas 1399,
36 CCH EPD 35150.
Footnote 64. Pecinovsky v Lancaster (1991, WD Wis) 55 BNA FEP Cas 575.
Footnote 65. 2209.
Footnote 66. Jones v Frederick County Bd. of Education (1988, DC Md) 689 F Supp 535,
49 CCH EPD 38751.
Footnote 67. Edinboro v Department of Health & Human Services (1988, SD NY) 704 F
d. When is Action Commenced; Tolling [2225-2242]
2225 Generally
View Entire Section
Go to Supplement
A limitations period which has begun to run as the result of some triggering occurrence
71 is said to be tolled when equitable considerations require that its running be
suspended or extended. Such considerations may arise when circumstances beyond the
plaintiff's control make it impossible to comply with the limitations period, or when the
filing of certain papers within the limitations period either provides the same degree of
notice to the defendant as would the filing of a technically sufficient complaint or
initiates processes which take precedence over the plaintiff's obligation to file such a
complaint.
Two separate tolling doctrines apply in ADEA cases, equitable estoppel and equitable
tolling. Equitable estoppel or fraudulent concealment arises when an employer tries to
prevent the plaintiff from discovering that he is a victim of discrimination and
presupposes that the plaintiff has discovered, or should have discovered that he is injured.
Equitable tolling is based on the plaintiff's inability, with due diligence, to obtain vital
information bearing on the existence of his claim, and only provides the plaintiff with
extra time to file suit if he needs it. This doctrine presumes that the plaintiff could bring
suit within the statutory period because it does not rely on wrongful acts by the employer.
Thus, negligence by the party invoking the doctrine can tip the balance against its
application. While many courts fuse the two doctrines, presumably inadvertently, the
statute of limitations should not be trivialized by incorrect applications of the two
doctrines. 72
Courts take the view that tolling is limited to three types of situations:
where the defendant has misled the plaintiff concerning the cause of action;
where some extraordinary circumstance has prevented the plaintiff from asserting his
rights;
where the plaintiff has filed in the wrong court. 73
Thus, even if the plaintiff has not filed a timely complaint, other actions on his partsuch
as the filing of a request for counsel 74 or an in forma pauperis petition 75 if done
within the limitations period, may be held to suspend the running of the statutory filing
period. Furthermore, circumstances beyond the control of the plaintiff that prevented
timely filingsuch as errors by his counsel 76 or the EEOC 77 may toll the statutory
period. 78 However, a statute of limitations should not be tolled under circumstances
that would seriously prejudice a defendant who was not responsible for the delay. 79
Observation: The basic federal principles of tolling are the same whether the
limitations period relates to administrative 80 or judicial proceedings. However, the
same factual circumstances that require the equitable modification of an administrative
charge filing period may not mandate the tolling of the statute of limitations for filing
suit.
Illustration: Although an employer's failure to post an ADEA notice may be a

sufficient basis on which to equitably modify the charge-filing period, 81 it is not a
sufficient ground on which to toll the two-year statute of limitations after the plaintiff
has consulted an attorney, particularly since the poster doesn't even mention the
two-year period. 82
Case authorities:
Where defendant employer actively misleads Title VII plaintiff regarding reason for his
or her dismissal, statute of limitations will not begin to run (i.e. will be tolled) until facts
which would support plaintiff's cause of action are apparent or should be apparent to
person with reasonably prudent regard for his or her rights. Oshiver v Levin, Fishbein,
Sedran & Berman (1994, CA3 Pa) 38 F3d 1380, 66 BNA FEP Cas 429.
Title VII plaintiff's failure to provide EEOC with current address does not excuse his late
filing of court action. Harding v Fort Wayne Foundry/Pontiac Div. (1996, ND Ind) 70
BNA FEP Cas 1074, motion den, request den (1996, ND Ind) 1996 US Dist LEXIS 3090
and ops combined at (1996, ND Ind) 919 F Supp 1223.
Title VII plaintiff, who failed to provide EEOC with current address, was not entitled to
equitable tolling of applicable time limit for filing his court action, since plaintiff was not
incapable of performing simple, routine task of informing pertinent persons and entities
of his address changes. Harding v Fort Wayne Foundry/Pontiac Div. (1996, ND Ind) 70
BNA FEP Cas 1074, motion den, request den (1996, ND Ind) 1996 US Dist LEXIS 3090
and ops combined at (1996, ND Ind) 919 F Supp 1223.
Mere continuity of employment, without more, is insufficient to prolong life of cause of
action for Title VII employment discrimination. Gipson v KAS Snacktime Co. (1996,
CA8 Mo) 83 F3d 225.
Amended complaint adequately alleged facts supporting equitable tolling of limitations
period in 42 USCS 1983 action sufficient to withstand dismissal for failure to state
claim, where plaintiff alleged that he was wrongfully terminated from his job because of
conspiracy by defendants, and that plaintiff pursued administrative reinstatement and
timely filed 1983 action after those proceedings were completed. Cervantes v City of
San Diego (1993, CA9 Cal) 5 F3d 1273, 93 CDOS 7207, 93 Daily Journal DAR 12270.
Footnotes
Footnote 72. Cada v Baxter Healthcare Corp. (1990, CA7) 920 F2d 446, 54 BNA FEP
Cas 961, 55 CCH EPD 40424, cert den (1991, US) 56 CCH EPD 40835.
Two separate tolling doctrines apply in ADEA casesequitable estoppel and equitable
tolling. Equitable estoppel or fraudulent concealment arises when an employer tries to
prevent the plaintiff from discovering that he is a victim of discrimination and
presupposes that the plaintiff has discovered, or should have discovered that he is injured.
Equitable tolling is based on the plaintiff's inability, with due diligence, to obtain vital
information bearing on the existence of his claim, and only provides the plaintiff with
extra time to file suit if he needs it. This doctrine presumes that the plaintiff could bring
suit within the statutory period because it does not rely on wrongful acts by the employer.
Cada v Baxter Healthcare Corp. (1990, CA7 Ill) 920 F2d 446, 54 BNA FEP Cas 961, 55
576, 56 CCH EPD 40835.
Footnote 74. 2236.
Footnote 75. 2237.
Footnote 76. 2233.
Footnote 77. 2230.
Footnote 79. Franklin v Herbert Lehman College (1981, SD NY) 508 F Supp 945, 25
BNA FEP Cas 305.
Footnote 80. As to tolling and equitable estoppel as they relate to administrative filing
requirements, see 1232 et seq.
2226 Applicability of tolling doctrine

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The equitable tolling doctrine is read into every federal statute of limitations. It has been
held applicable to the ADEA. 83 The Supreme Court has strongly indicated that the
90-day filing period for private suits is not "jurisdictional." The court noted that it had
previously referred to the filing requirement as a limitations statute. 84
Courts in a
majority of the circuits have held that the 90-day limitation period is more in the nature
of a statute of limitations than a strict jurisdictional prerequisite to suit, and therefore
subject to tolling. 85 In a later Title VII case involving a federal employee, the court
interpreted Zipes to hold that the statutory time limits applicable to lawsuits against
private employers are subject to equitable tolling. It further concluded that the same
rebuttable presumption of equitable tolling should apply in Title VII suits against the
U.S. Government. However, the court cautioned that the tolling doctrine should always
be sparingly applied, such as in situations where a claimant is actively pursuing his
judicial remedies but files a defective pleading, or where the claimant is induced or
tricked by the employer's misconduct into allowing the filing time period to expire.
Equitable tolling should not be available to a claimant who merely fails to exercise due
diligence. 86 By itself, a lack of prejudice to the defendant does not justify the
application of the doctrine of equitable tolling. 87
Under Irwin, the limitation period for federal employment suits under Title VII was
equitably tolled to permit the filing of an amended complaint naming the agency head as
the proper defendant, under the "relation back" doctrine, where the delay in the agency
head receiving notice of the suit was attributable to the court clerk rather than the
complainant. 88
However, equitable tolling of the time period for filing suit under 501 of the
Rehabilitation Act was properly denied where the failure to serve timely notice on the
defendant was due to the federal employee's failure to identify the agency head as the
defendant. There was no indication that the failure was the result of having been actively
deceived, misled, or lulled into inaction. 89
Observation: Although the 30-day suit-filing period under Title VII and 501 of the
Rehabilitation Act has been expanded to 90 days, 90 equitable tolling principles
developed under the former 30-day period should continue to govern in analogous
circumstances under the 90-day period.
2226 ----Applicability of tolling doctrine [SUPPLEMENT]
Practice Aids: Equitable considerations as modifying, through tolling or estoppel, time
limitations of Age Discrimination in Employment Act (ADEA) (29 USCS 626(d))
for filing charge with Equal Employment Opportunity Commission. 110 ALR Fed
377.
Case authorities:
Request by employee for employer to reconsider termination decision does not toll
limitations period. Rubitsky v American Sterilizer Co. (1993, DC Mass) 62 BNA FEP
Cas 969, 8 BNA IER Cas 1335.
Under some circumstances, company's failure to post notice of employees' rights under
ADEA may toll statute of limitations. Unterreiner v Volkswagen of Am. (1993, CA7 Ill)
8 F3d 1206, 63 BNA FEP Cas 292, 63 CCH EPD 42665, reh, en banc, den (CA7 Ill)
To determine whether plaintiff in fact lacked vital information so as to be entitled to
equitable tolling, court should ask whether reasonable person in plaintiff's position would
have been aware that he had been fired in possible violation of ADEA; if reasonable
person would have been aware, but plaintiff was not, resort to equitable tolling is
inappropriate. Chakonas v City of Chicago (1994, CA7 Ill) 42 F3d 1132.
Because plaintiff missed filing deadlines on both his administrative and his court claims,
his action claiming discrimination under Rehabilitation Act (29 USCS 791) must be
dismissed, and equitable estoppel does not toll statute of limitations since defendant
postal service did not attempt to mislead him, he was not unable to obtain vital
information before deadline, and under circumstances, equity did not require tolling.
Velich v Runyon (1994, ED Wis) 860 F Supp 1342, 9 ADD 757, 3 AD Cas 1062.
Time limits in Title VII will be tolled only if there has been active deception of claimant
regarding procedural prerequisites; however, claimant who is aware of his Title VII
rights is obligated to file promptly or forfeit his claim. Mascheroni v Board of Regents of
the Univ. of Cal. (1994, CA10 NM) 28 F3d 1554, 65 BNA FEP Cas 632.
Footnotes
Footnote 83. Callowhill v Allen-Sherman-Hoff Co. (1987, CA3) 832 F2d 269, 45 BNA
FEP Cas 222; Ott v Midland-Ross Corp. (1979, CA6) 600 F2d 24, 19 BNA FEP Cas
1465, 19 CCH EPD 9269.
Footnote 84. Zipes v Trans World Airlines, Inc. (1982) 455 US 385, 71 L Ed 2d 234,
Annotation: Time limitations of 706 of Civil Rights Act of 1964, as amended (42
USCS 2000e-5(f)(1)) for bringing civil action by person aggrieved as subject to
tolling because of equitable considerations, 54 ALR Fed 335.
Equitable considerations as tolling, for purposes of civil action, time limitations of
706 of Civil Rights Act of 1964, as amended (42 USCS 2000e-5(e)), for filing
charge with Equal Employment Opportunity Commission, 53 ALR Fed 859.
Footnote 85. First CircuitRice v New England College (1982, CA1) 676 F2d 9, 28
Second CircuitJohnson v Al Tech Specialties Steel Corp. (1984, CA2) 731 F2d 143, 34
Third CircuitLovelace v Acme Markets, Inc. (1988, ED Pa) 1988 US Dist LEXIS 576.
Fourth CircuitHarper v Burgess (1983, CA4) 701 F2d 29, 31 BNA FEP Cas 450, 31
CCH EPD 33379.
Fifth CircuitPinkard v Pullman-Standard, Div. of Pullman, Inc. (1982, CA5) 678 F2d
Sixth CircuitBrown v Mead Corp. (1981, CA6) 646 F2d 1163, 25 BNA FEP Cas 684,
25 CCH EPD 31730.
Seventh CircuitJones v Madison Service Corp. (1984, CA7) 744 F2d 1309, 35 BNA
FEP Cas 1711, 35 CCH EPD 34691.
Ninth CircuitValenzuela v Kraft, Inc. (1986, CA9 Cal) 801 F2d 1170, 41 BNA FEP
Cas 1849, 41 CCH EPD 36627, amd, reh den (CA9 Cal) 815 F2d 570, 47 BNA FEP
Cas 644, 43 CCH EPD 37085.
Tenth CircuitGonzalez-Aller Balseyro v GTE Lenkurt, Inc. (1983, CA10) 702 F2d

Eleventh CircuitSuarez v Little Havana Activities (1983, CA11) 721 F2d 338, 33 BNA
D.C. CircuitGordon v National Youth Work Alliance (1982) 218 App DC 337, 675 F2d
Footnote 86. Irwin v Veterans Administration (1990, US) 55 CCH EPD 40,396.
Law Reviews: Equitable Tolling of Title VII Time Limits in Actions Against the
Government. 74 Cornell L Rev 199 (1988).
Footnote 87. Dougherty v Barry (1981, App DC) 49 BNA FEP Cas 289.
Footnote 88. Ynclan v Dept. of the Air Force (1991, CA5) 1991 US App LEXIS 22379.
Footnote 89. Johnson v United States Postal Service (1988, CA10) 48 BNA FEP Cas
686.
Footnote 90. 2179.
2227 Applicability of state-law tolling principles

View Entire Section
Lacking statutes of limitations of their own, the early civil rights acts, 91 Title VI, 92
and the Rehabilitation Act 93 "borrow" state-law limitation periods. Thus, the question
may arise as to whether federal or state tolling principles apply in cases under these
federal statutes. In a 1981 case, the Supreme Court said that state-law considerations
should be the primary guide, but that they may be displaced where their application
would be inconsistent with the federal policy underlying the cause of action. 94 Other
courts have held that state-law principles apply as long as they are not inconsistent with
the purposes of 1981 95 or the federal Constitution and laws. 96
In some instances, the state statute of limitations will contain a "saving clause," entitling
the plaintiff to refile a suit within a specified time after the initial suit is dismissed
without prejudice. Such a saving clause has been given effect in 1981 cases. 97
Footnotes
Footnote 92. 2197.
Footnote 93. 2198.

Footnote 95. Okonko v Union Oil Co. (1981, DC Cal) 519 F Supp 372, 26 BNA FEP Cas
1592.
Footnote 96. London v Coopers & Lybrand (1981, CA9) 644 F2d 811, 26 BNA FEP Cas
755, 26 CCH EPD 31832.
Footnote 97. Garrison v International Paper Co. (1983, CA8) 714 F2d 757, 32 BNA FEP
Cas 1278, 32 CCH EPD 33766; Whittle v Wiseman (1982, CA8) 683 F2d 1128.
2228 How to assert tolling

View Entire Section
To withstand a motion to dismiss, the plaintiff must advise the court either through his
complaint or in an affidavit of facts as to why the tolling doctrine applies to a complaint
that is otherwise time-barred on its face. 98
Footnotes
Footnote 98. Forde v Royal's, Inc. (1982, SD Fla) 537 F Supp 1173, 31 BNA FEP Cas
213, 115 BNA LRRM 4937.
2229 Filing an administrative charge

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Go to Supplement
Filing a Title VII or ADEA charge with the EEOC does not toll either statute's statute of
limitations. For example, even though a plaintiff filed an appropriate ADEA charge, his
failure to file suit for more than four years following the alleged discriminatory conduct
barred his action under that statute's limitations period. 99
2229 ----Filing an administrative charge [SUPPLEMENT]
Case authorities:
Time for filing administrative charge or commencing Title VII lawsuit runs from date of
discriminatory act, even if its effects on injured employee are long lasting; mere
continuity of employment, without more, is insufficient to prolong life of cause of action
for employment discrimination. Gipson v KAS Snacktime Co. (1996, CA8 Mo) 83 F3d
225.
Time for filing administrative charge or commencing Title VII lawsuit runs from date of
discriminatory act, even if its effects on injured employee are long lasting. Gipson v KAS
Snacktime Co. (1996, CA8 Mo) 83 F3d 225.
Footnotes
Footnote 99. Vuksta v Bethlehem Steel Corp. (1982, ED Pa) 540 F Supp 1276, 32 BNA
FEP Cas 1874, affd without op (CA3) 707 F2d 1405, 34 BNA FEP Cas 700, cert den
464 US 835, 78 L Ed 2d 119, 104 S Ct 121, 34 BNA FEP Cas 1800.
2230 EEOC errors

View Entire Section
Go to Supplement
Although the Ninth Circuit has declared that a mistake of law by a government attorney
is no excuse for an untimely filing, 1 other courts have held that Title VII's 90-day
limitations period may be tolled where errors by the EEOC cause the plaintiff to file an
untimely lawsuit. 2 For instance, the EEOC's administrative closure of a timely Title VII
charge, in response to the complainant's request to withdraw the charge, did not bar the
complainant from later bringing suit in federal court, where (1) the record did not show
that the EEOC had ever consented to the withdrawal of the charge, and the complainant
never received sufficient notice that EEOC processes had terminated and that the
Commission had decided not to file suit in her behalf; and (2) the complainant filed suit
within 90 days of receipt of the later-issued right-to-sue letter. 3 However, tolling was
not granted where the EEOC erroneously issued a facially valid right-to-sue notice to the
plaintiff, four years elapsed between the date of the initial charge and the lawsuit's filing,
and the plaintiff did not allege that the employer had deterred her in any way. The court
said that a contrary holding would compel a trial court to investigate the validity of the
notice's issuance every time an administrative inconsistency was alleged. 4
Equitable tolling of the Title VII limitation period was also denied where a pro se
plaintiff claimed he had been mislead by the EEOC's instructions regarding who would
be an appropriate defendant. Although a portion of the EEOC's instructions might have
been confusing, the remaining instructions clarified the matter, and the plaintiff's actions
in choosing defendants contradicted his claims of reliance on the EEOC's instructions.
Also, the employee was not as diligent as he could have been in pursuing his claims. 5
However, other courts have disagreed with Rys and held that the same misleading
language, indicating that either agencies or department heads might be named as
defendants, made tolling appropriate in both a Title VII case 6 and in a Rehabilitation
Act case. 7
The ADEA limitation period was not tolled for an employee claiming misinformation by
the EEOC where her only evidence in support of tolling was her testimony about an
unverifiable telephone conversation on an unspecified date with an unnamed EEOC
official who made no reference to the period for filing suit when responding to her
question about the period for filing an administrative charge. 8
2230 ----EEOC errors [SUPPLEMENT]
Case authorities:
Filing of request for reconsideration with EEOC, after EEOC issues determination letter
which concludes that there is no reasonable cause to believe that employer violated
ADEA, does not toll 90-day time limit that plaintiff has to file court action. McCray v
Corry Mfg. Co. (1994, WD Pa) 872 F Supp 209.
Equitable tolling of administrative deadline for filing charge with EEOC is premised on
plaintiff's excusable neglect, which may or may not be attributable to defendant
employer. Anderson v Unisys Corp. (1995, CA8 Minn) 47 F3d 302, 67 BNA FEP Cas
317, reh den (1995, CA8) 1995 US App LEXIS 9062.
Footnotes
Footnote 1. Cleveland v Douglas Aircraft Co. (1975, CA9) 509 F2d 1027, 10 BNA FEP
Cas 192, 9 CCH EPD 9930.
Footnote 2. Ramos v Port Authority (1976, SD NY) 20 BNA FEP Cas 174, 11 CCH EPD
10838, 12 CCH EPD 11035.
Footnote 3. Whitehead v Reliance Ins. Co. (1980, CA5) 632 F2d 452, 24 BNA FEP Cas
1080, 24 CCH EPD 31414.
Footnote 4. Brown v Mead Corp. (1981, CA6) 646 F2d 1163, 25 BNA FEP Cas 684, 25
CCH EPD 31730.
Footnote 5. Rys v U.S. Postal Service (1989, CA1) 1989 US App LEXIS 14387.
Footnote 6. Warren v Department of the Army (1989, CA8) 867 F2d 1156, 49 BNA FEP
Cas 141, 49 CCH EPD 38716.
Footnote 7. Brezovski v U.S. Postal Service (1990, CA10) 1990 US App LEXIS 9252.
Footnote 8. Sitarski v IBM Corp. (1989, ND Ill) 1989 US Dist LEXIS 2315.
2231 Plaintiff's illness as excuse for untimely complaint

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Go to Supplement
Just as in the case of administrative charge filing requirements, 9 the plaintiff's illness
may not be a sufficient basis for tolling a statute of limitations. For example, a district
court properly refused to toll the period in which a plaintiff claiming mental incapacity
should have filed his Title VII suit, because he had been represented by counsel
throughout most of the period in issue, and had failed to show that his mental illness
deprived his counsel of the knowledge or consent needed to file a court complaint. 10
Even where an applicable state limitations period specifically recognized illness as an
excuse, a federal court construed the statute strictly in a 1981 job discrimination action.
Thus, the plaintiff was not entitled to tolling of the state's three-year limitations period
under a statute providing for tolling of a cause of action if the plaintiff were under a
disability because of insanity at the time the cause of action accrued. The court found
that the plaintiff's disability was not of the severe and incapacitating nature contemplated
by the state tolling statute. 11
Observation: There are not any firm rules concerning illness as a reasonable basis
for tolling statutes of limitation. However, the length of the particular limitations
period may influence the court's decision on tolling. The longer the limitations period,
the less likely it is that illness may serve as a reasonable basis for tolling.
2231 ----Plaintiff's illness as excuse for untimely complaint [SUPPLEMENT]
Case authorities:
Where postal worker suffered manic depressive episode at work and was terminated
some months later for abandonment of his position when he failed to return to work after
episode, worker's employment discrimination suit which was filed nearly three years later
was untimely since, while his mental illness would have tolled statute of limitations if
illness had, in fact, prevented worker from managing his affairs and understanding his
legal rights and acting upon them, evidence showed that worker was compos mentis for
more than two and one-half years before he complained about his firing and that he had
even completed two semesters of college during that time. Miller v Runyon (1996, CA7
Ill) 77 F3d 189, 15 ADD 330, 5 AD Cas 415, 151 BNA LRRM 2833.
Footnotes
Footnote 10. Lopez v Citibank, N.A. (1987, CA1) 42 BNA FEP Cas 1153.
Footnote 11. Dumas v Agency for Child Development-New York City Head Start (1983,
SD NY) 569 F Supp 831, 32 BNA FEP Cas 1365, 33 CCH EPD 34280.
2232 Defendant's misrepresentations as excuse for untimely complaint

View Entire Section
Just as in the case of administrative filing requirements 12 a defendant's fraud or
misrepresentations that prevent the plaintiff from filing a timely job discrimination
complaint may toll the statute of limitations. Concealment of facts that would have
alerted the plaintiffs to the true reason for their discharges is a prerequisite for tolling of
the limitations period on the basis of the defendant's misrepresentations. 13 However,
only an active misrepresentation or concealment of facts, resulting in prejudice to the
plaintiff, is grounds for tolling. Therefore, tolling was denied where:
a federal agency's statements concerning the agency's corporate status and service of
process did not actively misrepresent the facts, though they may have led the employee
improperly to name the agency as the defendant in the action. 14
the employer allegedly induced the plaintiff to delay filing the action by engaging the
employee in settlement negotiations, when there was no prejudice involved in the delay,
because the limitations period had expired before the negotiations. 15
Because the plaintiff should have been on notice of a possible discrimination claim,
tolling was denied despite some alleged misrepresentation or concealment when:
before the complainant's discharge, the employer had hired younger employees who
were not fired during a purported reorganization, had made age- related remarks, and had
given inconsistent explanations for the employee's termination. 16
employees were aware when a retirement plan was announced that only older
employees were given the unfavorable choice of early retirement or loss of the option, a
fact that put them on notice of possible ADEA violations even though the employer did
not disclose all aspects of the plan. 17
the employee had possessed sufficient knowledge to file a charge of age discrimination
after he became aware that a less-experienced younger employee was being retained on
the same day he received a termination notice, and was threatened with immediate
dismissal if he discussed the termination with anyone else in the company. 18
Still, in an ADEA case, one court said that its sense of fairness would be offended if the
employer could, by artifice or misrepresentation, deprive the plaintiff employee of the
full amount of time allowed him by law in which to consider and act on his claim. Thus,
the court held that any period of time for which the plaintiff was wrongfully induced to
forgo commencing suit would not be charged against him in computing the three-year
However, the Eighth Circuit denied relief when a plaintiff relied on the offer o

Am Jur 2d Part 2 Job Discrimination

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JOB DISCRIMINATION

I. GOVERNING LAWS, IN GENERAL [1-35]

Copyright 1998, West Group

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Footnote 8. 42 USCS 2000e-2(b).

2 Statutory exceptions to Title VII prohibitions

Footnote 33. 42 USCS 2000e-2(h).

3 Administration of Title VII

4 Title VII's relationship to other federal job discrimination laws

FEP Cas 696.

5 Title VII's relationship to other federal labor laws

Copyright 1998, West Group

Observation: The pertinent provisions of 1981 with respect to job discrimination

African-American former employee's racial harassment and discharge claims under 42

7 What employment situations are encompassed by 1981

8 What types of discrimination are prohibited under 1981

Observation: Section 1981 has sometimes been applied to discrimination claims by

ethnic groups that are commonly viewed as races. 66

State aspects: There is a "custom or official policy" requirement under 42 USCS

Copyright 1998, West Group

Copyright 1998, West Group

9 Relationship between 1981 and Title VII

What constitutes sex discrimination in termination of employee so as to violate Title VII

10 Section 1983's prohibitions

color of statute, ordinance, regulation, custom, or usage, subjects or causes to be

official policy" requirement is also discussed at 12.

11 Section 1983's state action requirement

Practice Aids: What constitutes constructive discharge of employee due to sex

Copyright 1998, West Group

Footnote 90. Monell v Department of Social Services (1978) 436 US 658, 56 L Ed 2d

12 Section 1983's custom or official policy requirement

Practice Aids: What constitutes constructive discharge of employee due to sex

13 Relationship between 1983 and federal job discrimination laws

15 Relationship between 1985(3) and other job discrimination laws

Observation: Novotny has been distinguished as inapplicable in some circumstances

ADEA is remedial and humanitarian legislation that is to be liberally construed for

Copyright 1998, West Group

View Entire Section

D. Americans With Disabilities Act [18, 19]

defendant employer failed to make reasonable accommodation to her handicap in

19 Relationship to other laws

Employment Opportunity Commission, January 28, 1992.

127 CCH LC 33066.

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Go to Parallel Reference Table

22 Laws and executive orders prohibiting discrimination in government

Programs (OFCCP), 47 which has developed a substantial body of regulations to

23 --Vietnam Era Veterans Readjustment Assistance Act

Copyright 1998, West Group

24 --Other laws regulating government contractors

25 Laws prohibiting discrimination in federally aided programs and activities;

governing equal employment opportunity in federally assisted programs, and

Office of Personnel Management; 87

Copyright 1998, West Group

Footnote 73. 32 CFR Part 300.

VII. Yusuf v Vassar College (1994, CA2 NY) 35 F3d 709.

27 Other laws regulating federal aid recipients

color, sex, and national origin discrimination; 4

Observation: Although some of the statutes listed above specifically forbid

27 ----Other laws regulating federal aid recipients [SUPPLEMENT]