Equal Employment Opportunity: History, Ethics, and Legal Framework

Introduction

The modern history of employment equity begins with the Civil Rights Act of 1964, which extended employment equity rights to Americans regardless of gender, religion, national origin, race, or color. The CRA was, in essence, fulfilling the promise of the 14th Amendment, which introduced the idea of equal protection under the law. Employment in the United States is typically governed under the doctrine of employment at will, which grants employers considerable leeway in firing people. However, the CRA established that people needed equal opportunity and protection regardless of outward characteristics. This paper will examine the history of equal employment opportunity and the moral and ethical dimensions of this concept.

Legislative History and Court Challenges

The Civil Rights Act of 1964 did not invent the concept of employment equity, but it has proven to be the foundation of modern equal employment opportunity. The text of that law, and the protections it extended to Americans, has remained in place since that time, surviving various court challenges. The Civil Rights Act has been used as the basis for similarly structured laws that have essentially expanded worker protections, including protections for disabled workers and older workers from discrimination in the workplace. A recent extension curtailed the ability of companies to discriminate on the basis of genetic information, under Title II of the Genetic Information Nondiscrimination Act of 2008. The recent public declaration by Apple CEO Tim Cook that he is gay highlights the reality that sexual orientation is not a protected class at the federal level, despite ample evidence that LGBT individuals suffer discrimination in the workplace.

The Equal Employment Opportunity Commission was created as a regulatory body that would provide oversight and guidance to businesses with respect to the enforcement of equal employment opportunity provisions. The EEOC notes that the laws regarding equal employment opportunity apply to almost all employers, and that there are protections not just for workers, but for whistleblowers as well.

Since the passage of the Civil Rights Act of 1964, the concept of equal employment opportunity has come under several challenges in the court system. Initially, the court system expanded the scope of the CRA. For example, in Griggs v. Duke Power, the concept of disparate impact was invoked to find that the company had systematically discriminated against Black workers by only hiring them for menial jobs, while hiring white workers exclusively for better-paying positions. However, more recently, the CRA has seen its architecture eroded by an activist conservative court. Some argue these moves are weakening the law while leaving its façade intact, but making it much more difficult to file suit under Title VII's provisions. The Obama administration was forced to sign the Lilly Ledbetter Fair Pay Act into law as a response to a Supreme Court ruling by five conservative justices that limited the ability of women to seek redress under the CRA. This highlighted that there is an ongoing attempt to undermine the Civil Rights Act, and that government must continue to reinforce its provisions even fifty years after it was passed.

In addition to the federal anti-discrimination framework, a number of state-level provisions have been enacted. States that employ evidence and critical thinking in setting policy will typically take the lead in adopting more progressive legislation where employment equity is concerned. The ACLU website provides information on the state-level differences in worker protections that have been implemented to augment the Civil Rights Act.

Two key takeaways emerge from the legislative history of employment equity. First, even fifty years after the Civil Rights Act was passed, there remains considerable opposition to the idea of treating all human beings as equals. This opposition to human rights has been evident in judicial cases, where even Supreme Court justices have launched assaults on equality, legislating from the bench in direct contrast to the will of Congress in enacting the Civil Rights Act and its extensions.

Moral and Ethical Foundations

The second takeaway is that equal employment opportunity continues to be a work in progress. This is not just the defense of the gains that have already been made, but the extension of those gains to eliminate workplace discrimination. The recent passage of laws preventing discrimination on the basis of genetic information represents an adaptation of civil rights to modern technology. The issue of LGBT rights is still on the table at the federal level and in many states as well. Progress remains necessary, and it can seem frustrating to reflect that not only are there impediments to such progress, but there are people actively trying to undo progress that was made fifty years ago.

Equal Employment Opportunity is a concept rooted in the 14th Amendment and brought to law with the Civil Rights Act of 1964. The civil rights movement of the 1960s was a reflection of society's values, which were becoming more oriented towards human rights and genuinely providing equality of opportunity. It is generally accepted that within any society there will be some form of socioeconomic hierarchy, whether formal or informal. In some respects, people accept that hierarchy provides order to society or is natural. There are few, if any, societies that do not contain hierarchy, because power and control of resources are nearly impossible to disperse evenly.

The concept of equal employment opportunity is not rooted in a consequentialist ethic that all people specifically have equal outcomes. Many input factors determine outcome, including intelligence, ability, and other skill-based factors. While this does not prevent many groups from pointing to outcome inequality as a persistent problem, outcome inequality itself is natural. Outcome inequality is, however, a symptom that there is likely some form of input inequality or structural inequality. The development of equal employment opportunity as a concept actually only addresses part of the structure of economic opportunity in society and therefore cannot possibly deliver outcome equality. In addition to personal factors, other considerations include educational equality and the way society apportions roles for people of different groups. Some CRA provisions do address economic opportunity—for example, in university admissions—but this is not specifically an employment equity issue.

Employment equity works on principles of individual liberty, wherein each person should have equal opportunity to pursue wealth and resources. The concept at large covers all manner of barriers to social equity, where employment equity is just one element. Thus, the CRA was designed largely to prevent the sort of institutionalized, structural barriers that had previously prevented equal opportunity for many groups. By forbidding discrimination in hiring and promotion in particular, each individual will have the opportunity to succeed on his or her own merits.

The core idea usually does not come under fire except from outright bigots, neither group being particularly prone to accepting rational philosophical thought. Where reasonable arguments against employment equity are offered is often with respect to specific implementation issues. In most cases, however, this is a question of outcome-based analysis, such as evaluating the Americans with Disabilities Act on outcomes for disabled individuals.

Human Resources Implementation

While outcome-based evaluations clearly struggle with understanding the limitations of equal employment opportunity legislation to address the sum total of factors affecting socioeconomic equality, there is a point where they are relevant. Society must evaluate laws based on their intent. If the laws only intend to create equal opportunity, so be it. However, in many cases the laws do intend to deliver improvements in outcomes. If nothing changes, why pass the law and create enforcement infrastructure? The body of research is mixed with respect to the actual outcomes created by equal employment opportunity, and there is no shortage of anecdotes from those who perceive themselves to be aggrieved.

In business, equal employment opportunity has been operationalized by human resources departments. Over the past fifty years, the field of human resources has become increasingly sophisticated, and civil rights has been a central part of that development. Companies have restructured the way they hire and promote people, placing far greater emphasis on using quantitative analysis to perform these tasks, because it allows the company to evaluate candidates without knowing their name or other demographic details. Job descriptions are written, performance metrics developed, and people are evaluated on the basis of those metrics.

Contemporary Barriers and Resistance

This approach actually serves organizations well, in that it increases the efficiency of their workforce and instills something much closer to meritocracy. Over time, such policies create greater employment opportunities, as more diversity in candidates move up the corporate ladder. Today, there are more high-quality candidates for executive positions from protected groups, having had the opportunity to build their careers in an era of greater equality.

There remain many barriers to equal employment opportunity. Many groups still stand opposed to these basic human rights laws. Religious groups target homosexuals, and libertarians argue that pure economic efficiency implies that such regulations are damaging to the economy. The former group's opposition is rooted in superstition and bigotry. The latter group ignores that the absence of structure preventing discrimination is itself a structure that allows resources to be deployed in a certain way. Laws preventing discrimination may have a short-run negative effect on business because of the transaction costs associated with building these laws into the human resources system. However, in the long run, businesses make structural adjustments. Today's workplaces that emphasize the removal of structural barriers to equal employment have greater efficiency because talent is better able to move to the top.

Conclusion

The battle for equal employment opportunity is far from over, and it is not the only civil rights battle that is still ongoing. There are challenges to overcome, both in expanding equality coverage under law and in defending the current laws from assaults that come both from outside the judiciary and from within it. However, it is also important to recognize that equal employment opportunity is not a panacea and cannot solve everything. Outcomes are not equalized simply because opportunity is. Moreover, opportunity is not equalized just because employment opportunity is. Thus, equal employment opportunity needs to be understood in the context of a supporting leg of a table that is also supported by social equality, educational equality, and healthcare equality. Many factors can undermine a person from achieving success in employment, and different starting points are definitely a factor.