Equal Employment Opportunity: History, Ethics, and HR

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 (National Archives, 2014). The Civil Rights Act was, in essence, fulfilling the promise of the Fourteenth 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 dismissing workers, but the Civil Rights Act established that people are entitled to equal opportunity and protection regardless of their outward characteristics. This paper examines the history of equal employment opportunity and the moral and ethical dimensions of this concept.

History of Equal Employment Opportunity

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 also served as the basis for similarly structured laws that have expanded worker protections, including protections for disabled workers and older workers from discrimination in the workplace. A more 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 (EEOC, 2009). The public disclosure by Apple CEO Tim Cook of his sexual orientation 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 (Zillman, 2014).

The Equal Employment Opportunity Commission (EEOC) was created as a regulatory body to 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 protections extend not just to workers but to whistleblowers as well (EEOC, 2009).

Since the passage of the Civil Rights Act of 1964, the concept of equal employment opportunity has faced several challenges in the court system. Initially, the courts expanded the scope of the Act — for example, in Griggs v. Duke Power Co., where the concept of "disparate impact" was invoked to find that the company had systematically discriminated against Black workers by restricting them to menial jobs while hiring white workers exclusively for better-paying positions (Blake, 2014). More recently, however, the Act's architecture has been eroded by an activist conservative court, moves that some argue weaken the law while leaving its facade intact — making it far more difficult to file suit under Title VII's provisions (Blake, 2014). The Obama administration was compelled to sign the Lilly Ledbetter Fair Pay Act into law in response to a ruling by five conservative Supreme Court justices that limited women's ability to seek redress under the Civil Rights Act. This ruling highlighted an ongoing effort to undermine the Act, and demonstrated that government must continue to reinforce its provisions even decades after the law was passed (Ledbetter v. Goodyear Tire & Rubber Co., 2007).

In addition to the federal anti-discrimination framework, a number of state-level provisions have been enacted. States that apply evidence and critical thinking in setting policy tend to take the lead in adopting more progressive employment equity legislation. The ACLU (2014) provides information on 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. The first is that, 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 will be discussed in greater detail below, but the evidence from judicial cases has shown that even Supreme Court justices have been willing to launch assaults on equality, effectively legislating from the bench in direct contrast to the will of Congress in enacting the Civil Rights Act and its extensions.

The second takeaway is that equal employment opportunity continues to be a work in progress — not merely a matter of defending gains already made, but of extending 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 principles to modern technology, and the issue of LGBT rights remains unresolved at the federal level and in many states. Areas where further progress is necessary therefore remain. It can seem frustrating to reflect that not only are there impediments to such progress, but that there are people who are actively attempting to undo advances made fifty years ago.

Moral and Ethical Considerations

Equal employment opportunity is a concept rooted in the Fourteenth Amendment and brought into law with the Civil Rights Act of 1964. The civil rights movement of the 1960s reflected a society whose values were increasingly oriented toward human rights and genuine 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 a natural feature of social life (Arneson, 2002). There are few, if any, societies without hierarchy, because power and control of resources are almost impossible to distribute evenly.

The concept of equal employment opportunity is not rooted, therefore, in a consequentialist ethic requiring that all people have equal outcomes. Many input factors determine outcome, including intelligence, ability, and other skill-based attributes. While this does not prevent many groups from pointing to outcome inequality as a persistent problem, some degree of outcome inequality is a natural feature of any system. Outcome inequality is, however, a symptom that some form of input inequality or structural inequality likely exists. The development of equal employment opportunity as a concept addresses only part of the structure of economic opportunity in society, and therefore cannot by itself deliver outcome equality. Personal factors, educational inequality, and the ways in which society assigns roles to people of different groups are additional determinants. Some Civil Rights Act provisions do address the concept of economic opportunity — in university admissions, for example — but this is not specifically an employment equity issue.

Employment equity operates on principles of individual liberty, wherein each person should have an equal opportunity to pursue wealth and resources. The concept broadly covers all manner of barriers to social equity, of which employment equity is just one element. The Civil Rights Act was therefore designed largely to remove the institutionalized, structural barriers that had, to that point, prevented equal opportunity for many groups. By prohibiting discrimination in hiring and promotion, the law aims to ensure that each individual will have the opportunity to succeed on his or her own merits.

The core idea rarely comes under serious philosophical fire, except from outright bigots and those who reject rational argumentation on principle. Where reasonable arguments against employment equity are offered, they tend to focus on specific implementation issues. In most cases, this amounts to outcome-based analysis, such as evaluating the Americans with Disabilities Act on the basis of outcomes for disabled workers (Acemoglu & Angrist, 2001).

While outcome-based evaluations clearly struggle with the limitations of equal employment opportunity legislation — which cannot address the sum total of factors affecting socioeconomic equality — they are relevant to the extent that society must evaluate laws on their intent. If the laws intend only to create equal opportunity, so be it; but in many cases laws are designed to deliver improvements in outcomes. If nothing changes, the rationale for passing the law and creating an enforcement infrastructure is undermined. The body of research is mixed with respect to the actual outcomes produced by equal employment opportunity legislation, and there is no shortage of anecdotes from those who perceive themselves as aggrieved.

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 defending current laws from assaults that come both from outside the judiciary and from within it. It is also important to recognize, however, that equal employment opportunity is not a panacea. Outcomes are not equalized simply because opportunity is, and opportunity itself is not equalized simply by addressing employment. Equal employment opportunity must therefore be understood as one leg of a table that is also supported by social equality, educational equality, and healthcare equality. Many factors can undermine an individual's chances of success in employment, and differences in starting points are undeniably one of them.

Thankfully, much of the nation has embraced the philosophy of equal employment opportunity, and further equality measures may yet be brought into law. Despite discrimination's inherent inefficiency, it remains a problem that requires legislative action to combat. That means both creating new laws and enforcement mechanisms and strengthening existing ones. The progress made so far can be undone, and it is important to guard against that outcome.