The Legacy of Brown v. Board of Education and Employment Law
The principles of Brown v. Board of Education extended beyond education and offered a framework for developing employment discrimination laws, serving as a critical touchstone for further progress during the Civil Rights Movement. This ruling provided the structure for future federal legislation that would impact the American legal landscape.
Title VII of the Civil Rights Act of 1964 incorporated many of these principles, making workplace discrimination based on race, color, religion, sex, or national origin unlawful. The Supreme Court went on to solidify the recognition of disparate impact principles as a key component of anti-discrimination laws in Griggs v . Duke Power Company. This decision found no requirement that an employer knowingly discriminate for the disparate impact doctrine to come into play, meaning affected workers don’t have to show intentional discrimination to seek legal remedies.
The Civil Rights Act of 1964 also opened the door for legislative initiatives and subsequent Supreme Court cases that protect against other forms of discrimination – including age (ADEA), sex (EPA and ADEA), marital status (EPA), sexual orientation (New York HRLs), and others. So while this decision is regularly associated with race discrimination, its legacy is one of comprehensive protections against discrimination.
The Definition of Discrimination: Griggs v. Duke Power Co
This 1971 case is often regarded as one of the cornerstones of modern employment law. The issue at hand was Duke Power Company’s use of intelligence and aptitude tests for hiring purposes. An African-American secretary, Mary Louise Griggs, had sued in federal court after she was rejected for a job because she failed the test. She argued that the test had a "disparate impact" (i.e., was not related to "job performance" or "job duties") on the basis of race. The Supreme Court agreed, holding that Title VII prohibited not only "overt discrimination, . . . but also that noth-ing that falls so heavily and[ beyond] its intent as to be, for all practical purposes, indistinguishable from" intentional discrimination. This case established the concept of "disparate impact," which defines discrimination as having an adverse impact on historically underrepresented groups and was a crucial step toward implementing equal employment opportunity.
Recognizing Sexual Harassment in the Workplace: Meritor Savings Bank v. Vinson
The case Meritor Savings Bank v. Vinson was one of the first to address the culture of sexual harassment in the workplace. The case involved a woman named Mechelle Vinson who worked as a teller for Meritor Savings Bank in the late 1970s. She alleged that her supervisor sexually assaulted her repeatedly, after he hired her for her job. She brought a lawsuit against the bank in 1983, claiming sexual harassment. The Supreme Court, in a 1986 decision, helped to further define sexual harassment and the theory of vicarious liability as it pertains to employers. The Court recognized two forms of sexual harassment, which are now more clearly defined as quid pro quo and hostile workplace environment. Quid pro quo harassment occurs when there are unwelcome sexual advances that are conditioned on something in return, such as sex for a promotion. Hostile workplace environment is defined as a workplace in which a person, based on their sex, is subject to a hostile work environment that is severe or pervasive enough to affect the terms, conditions, or privilege of employment. The Court also recognized the theory of vicarious liability. Under this theory, employers could be held responsible for the actions of their employees in the context of the employee’s work. The Court did, however, allow employers an affirmative defense to liability if they can prove that they were not negligent and could not have prevented the conduct from happening. Vicarious liability, as it pertains to sexual harassment, has since been modified, as many courts have ruled the affirmative defense doesn’t apply to hostile workplace environment claims. This is because, essentially, an employee is subjected to the hostile environment due to their sex or gender. It is said to be unrelated to the job duties or a business reason (such as hiring, promotion, etc.), and therefore not a decision in which the employer has any control over.
Ledbetter v. Goodyear and Pay Discrimination
In the realm of compensating one’s employees, gender is a characteristic which may factor into one’s decision. The concept of equal pay for equal work, however, represents a supreme tenet of employment law in America. In fact, the 1963 Equal Pay Act and Lawsuits brought pursuant to Title VII of the Civil Rights Act are designed to protect women from discrimination in the workplace, particularly in the case of equal pay. The most famous case before this Court on this issue is Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007).
In Ledbetter, Respondent Lilly Ledbetter was employed by Goodyear from 1979 until 1998. Petitioner Goodyear Tire & Rubber Company ("Goodyear") was a multinational tire manufacturing corporation founded in 1898. In July of 2007, Ms. Ledbetter brought suit against Goodyear for violations of the Equal Pay Act of 1963 for gender discrimination based on pay and compensation. Specifically, Ms. Ledbetter claimed that her employer played a significant role in the development and promotion of policies that were overtly discriminatory and that resulted in numerous negative effects for female employees, particularly with respect to pay.
At the District Court level the company was "determined not liable for damages due to the fact that the actions that the company took with regard to the payment of its employees was part of a discriminatory seniority plan developed many years in the past." However, at the Court of Appeals level the Court determined that there was indeed a violation of the Act and ruled that because Ms. Ledbetter was unaware that she was being subjected to higher digressions not on a precise basis, the time period for filing a complaint should not start until she learned the information, which was four months prior to filing her complaint.
In a landmark decision, the Supreme Court reversed the Court of Appeals’ decision and reinstated the original judgment of the District Court. The Court in Ledbetter determined that under the Act, individuals must file a claim within two years of the alleged violation. Thus, where Lilly Ledbetter alleged that she did not know that the company was discriminating against her until several years into her Employment , the Court held that the claims that Ledbetter filed regarding her employment with Goodyear were barred because the time limit had expired prior to the filing. While the Court determined that the District Court was wrong to grant the petitioners’ motion of summary judgment, the Supreme Court nonetheless found that the claims were untimely and thus granted the petitioners’ request that the judgment of the District Court be vacated and remanded.
Significantly, the Court determined that the Respondent’s complaints regarding pay were "discrete acts" over which the respondent could have proceeded and thus the appropriate claim time period was two (2) years. Thus, what is important about this case is its interpretation of the appropriate claim period in cases where claims are made pursuant to the Equal Pay Act of 1963. As such, the Court determined that any claims that are not made within the requisite two year time limit will not be actionable and therefore the Respondent was barred from making a challenge to what happened more than two years prior to the filing of her lawsuit.
This case, however, was quickly legislatively overruled by the Lilly Ledbetter Fair Pay Act of 2009 (Pub. L. 111-2 (Jan. 29, 2009)), codified at 29 USCS § 255. Specifically, the Act provides that a discriminatory compensation decision or other practice "that is unlawful under this Act occurs" each time the individual is affected by the application of the discriminatory compensation decision or practice, including each time wages, benefits or other compensation is paid, resulting in whole or in part from a decision or other practice that has not been unlawful because it is related to or is effectuated by the initial discriminatory decision or other practice. Lilly Ledbetter Fair Pay Act of 2009, Pub. L. 111-2, Jan. 29, 2009, 123 Stat. 5. As such, claims made pursuant to this legislation and this Act, for the unlawful discriminatory decisions of compensation, can be brought at any time during the employment period. The end effect of this Act was, essentially, to undo the Supreme Court’s decision in Ledbetter, which had the effect of curtailing any claims that may have occurred more than two years prior to the date the claim is made.
The Issue of Employee Arbitration: Epic Systems Corp. v. Lewis
One of the most impactful Supreme Court decisions in the past decade has been Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S. Ct. 1612 (2018). It didn’t even make the top 10 in SCOTUS Blog’s list, but its impact in the workplace is being felt profoundly. The case preserves employers’ ability to use arbitration agreements that prevent workers from bringing collective legal action in court.
The decision ended an ongoing circuit split that arose following the rulings in National Labor Relations Board v. Murphy Oil USA, Inc., 808 F.3d 1013 (5th Cir. 2015); Epic Sys. Corp. v. Lewis, 846 F.3d 656 (7th Cir. 2017); and Ernst & Young LLP v. Morris, 493 P.3d 1 (9th Cir. 2018), aff’d __ U.S. __, 138 S. Ct. 1612 (2018). A key issue was whether the National Labor Relations Act’s (NLRA) Section 7 protection of "the right to self-organization, to form, join, or assist labor organizations" requires class and collective waiver in arbitration agreement to be deemed unlawful.
The Court held in favor of the employers. In an opinion authored by Justice Gorsuch, the majority opinion reasoned that the text of the Federal Arbitration Act (FAA) requires courts to enforce arbitration agreements as they were written. Congress passed the FAA "in response to judicial hostility to arbitration," and the Supreme Court had repeatedly emphasized a strong "presumption in favor of enforcing arbitration agreements," irrespective of the claims that lie behind them.
The Epic Systems decision has made it more difficult for workers to band together and hold employers accountable collectively. Particularly in wage and hour claims, employees are now at the mercy of their own solo claims limit by the statute of limitations instead of having the possibility of recovering three years’ back pay as a collective.
Arbitration agreements now also allow for the "micro" settlements that some employers have offered after the DOL withdrew the so-called "Obama Overtime Rule" for managing overtime exposure to independent contractors and employees. The Epic decision closes the door on the possibility of overturning those micro settlements through collective action.
The Epic decision significantly impacts employment contracts and dispute resolution processes even without the pending decision concerning the enforceability of confidentiality agreements that prevent employees from speaking out regarding labor law violations.
Given the Epic decision, the ONSI Low Wage Worker Coalition has revived its "unsettling dispute resolution provision" campaign urging the National Labor Relations Board to nullify the recent rulings granting nonunion employers’ mandatory arbitration agreements with class and collective action waivers. Only time will tell whether the NLRB will find another vehicle for vacating Epic. But that may not be probable, considering that the Board is chaired by an anti-labor former union leader who supports maintaining the status quo with the Epic decision.
Lessons Learned from Historical Employment Law Cases
While times and workplaces have changed considerably, the influence of each case transcends time and provides lessons we can carry forward. The following key takeaways from the early days of employment law continue to be relevant today:
"Employment at Will": At-will employment contracts are the prevailing norm today. This doctrine means that, unless expressly disclaimed in a contract or oral agreement, an employee can be discharged at any time, for any reason, with or without notice. When states began passing employment-at-will statutes in the 19th century, few envisioned restrictive statutes for specific employment like those we see today. However, as more discrimination statutes came on the scene, a seemingly paradoxical situation emerged where employees with no express contracts might be entitled to more protections than those who did.
"Protected Classes": Modern employment laws often explicitly list protected classes, such as sex, race, religion, and age. However, it took a slew of cases to build precedent that would ultimately be enacted into law. While government and employer bias against women and minorities were clear and apparent, the law continued to be slow to protect these groups. We continue to see applications of this doctrine , especially in staunchly conservative settings where laws prohibiting discrimination in the workplace have yet to be passed.
"Discrimination Because of Sex": The tricky part about this legal precedent is that it simultaneously prohibited discrimination against both males and females. In practice, men were still preferred for labor jobs, claiming that they were "stronger." Today, we have a clearer understanding of the impact the language of "discrimination because of sex" and other anti-discrimination laws can have on employment practices. For example, the U.S. Equal Opportunity Employment Commission brought disparate impact theories of discrimination (discriminatory policies that affect specific groups more than others) into the spotlight with its landmark Griggs v. Duke Power Company litigation, which occurred just two decades after the two cases explored here.
"Pretext" and "Bona Fide": Pretext and bona fide became a puzzle even to those who needed to legally define them. Courts frequently struggled to determine whether a company’s reasons for termination were pretext (an excuse or rationalization put forward by one party to conceal true motives underlying the action) or bona fide (based on good faith). A common issue today, the case history shows how long the legal system has been allowing claims that something was "not because of" an illegal discriminatory characteristic, when in fact, the motivation appears to be clear. Here, we see the evolution of this judicial understanding over time.