Civil Rights Act of 1866
10 July 2006
Civil Rights Act of 1866, 42 U.S.C. §1981
Coverage and Prohibition: Enacted to fulfill the purposes of the Thirteenth Amendment’s abolition of slavery, the Act provides that all persons shall have the same right to make and enforce contracts as is enjoyed by white citizens. As amended by the Civil Rights Act of 1991 (see below), Section 1981 prohibits any form of intentional race discrimination in employment, by either private employers or those acting under color of state law, including claims arising out of a failure to hire or promote; a failure to provide equal terms, benefits, and conditions of employment; the imposition of discipline; termination; or racial harassment. All persons, including whites, may bring actions alleging race discrimination pursuant to Section 1981. The Supreme Court has construed the term “race” broadly to cover virtually any ethnic group. Because an intent to discriminate must be shown under Section 1981 “disparate impact” claims, claims alleging a facially neutral policy or practice with discriminatory results, may not be brought under this section.
Enforcement: The aggrieved individual may file suit directly in federal court without first filing a charge with the Equal Employment Opportunity Commission and may request a jury trial.
Remedies: The court may award a full range of remedies including injunctive relief, back pay, reinstatement, and full compensatory and punitive damages. Attorneys’ fees and expert fees also may be awarded.
Civil Rights Act of 1871
10 July 2006
Civil Rights Act of 1871, 42 U.S.C. §1983
Coverage and Prohibition: Section 1983 protects public employees from discriminatory employment actions that deprive them of any federal or constitutional right. It was passed to carry out the purposes of the Fourteenth Amendment and prohibits “persons” acting under the “color of any statute, ordinance, regulation, custom, or usage” of any state from depriving any individual of “any rights, privileges, or immunities” provided by the U.S. Constitution or law. Generally, employers that are part of the state government system, such as a state agency or local government, act under color of state law.
Managers and supervisors of federal, state, or local government entities may be personally liable for claims under the Act. A private employer also may be considered to be acting under color of state law, and therefore subject to the requirements of Section 1983, when it acts in conjunction with a state or local government agency; when it is subject to extensive regulation by the state; or when it performs functions that are traditionally viewed as public functions.
Enforcement and Remedies: The enforcement procedures and available remedies are the same as provided for Section 1981, under the Civil Rights Act of 1866 (see above).
National Labor Relations Act (1935)
10 July 2006
(as amended by the Labor Management Relations Act of 1947), 29 U.S.C. §§141-169
Coverage and Prohibition: The National Labor Relations Act (“NLRA”) applies to employers in all industries affecting commerce and to all employees (not just union employees) except agricultural laborers, individuals employed in the domestic service of a family or person, individuals employed by their parent or spouse, independent contractors, and supervisors. The NLRA gives employees the right to form, join, and assist labor organizations, or to refrain from such activities, and to bargain collectively with employers. In addition, the NLRA gives employees the right to engage in “concerted activities for collective bargaining or other mutual aid or protection.” This entitlement has been interpreted to protect nonunion employees who question the terms and conditions of their employment.
Enforcement: The National Labor Relations Board (“NLRB”) is the primary enforcement agency. A comprehensive regulatory scheme for labor management relations has grown out of the NLRA. The decisions of the NLRB have prescribed standards for the selection of employee representatives, for the negotiation and administration of collective bargaining agreements, and for the decertification of employee representatives. The NLRB also has given nonunion employees the right to discuss their pay and complain about their working environment. Other decisions have limited employer participation groups and even e-mail policies.
Remedies: Violations of the NLRA and the decisions of the Board may be redressed with a wide variety of remedies tailored to different types of violations.
Related Regulations:
Department of Labor (“DOL”) Statement of [NLRB] Procedures [Governing Unfair Labor Practice and Representation Cases], 29 C.F.R. §§101.1-101.43, 102.1-102.155.
DOL: Other Rules [Identifying Miscellaneous Industries Subject to the Jurisdiction of the NLRB], 29 C.F.R. §§103.1-103.3.
DOL: Federal Mediation and Conciliation Service, 29 C.F.R. Parts 1400 - 1430.
DOL: Labor Management Reports, 29 C.F.R. §§401-409, 451-453.
Fair Labor Standards Act (1938)
10 July 2006
Fair Labor Standards Act (1938), 29 U.S.C. §§201-219
Coverage and Prohibition: The Fair Labor Standards Act (“FLSA”) covers most employers in the public and private sectors. The Act requires, first, that covered employers pay at least the minimum wage ($5.15 an hour) to nonexempt employees; second, that covered employers generally pay time and one-half to nonexempt employees for hours worked in excess of 40 in any given workweek; third, that employees be over 18 years old to work in hazardous occupations; and fourth, that minors be above 14 or 16 years of age to work in other occupations, depending on the type of work and employer. The FLSA exempts certain executive, administrative, professional, and outside sales positions from its overtime and minimum wage requirements. In addition, certain highly compensated employees and computer-related professionals are exempt under the Act’s regulations. The Act was amended in 1985 to permit public employers to give specified amounts of compensatory time off in lieu of overtime pay. Other important amendments of the FLSA are discussed in the entries in this section for the Equal Pay Act and the Portal to Portal Pay Act, below.
Enforcement: The FLSA is administered by the Department of Labor. Suits based on violations of the Act can be brought by the Secretary of Labor or by the aggrieved employee. Criminal actions can be initiated by the Department of Justice in the case of a “willful” violation of the Act.
Remedies: The complainant can recover back pay and an equal amount in liquidated damages, if the violation was “willful.” The Portal to Portal Pay Act (see below) gives the court discretion to deny liquidated damages if the employer’s violation occurred in “good faith” and the employer had reasonable grounds to believe that it was not violating the FLSA. The Secretary may sue to enjoin violations of the Act or to enjoin the interstate shipment of goods produced by an employer that violates the Act. A prevailing plaintiff also may recover attorney’s fees. These cases may be tried before a jury under certain circumstances.
Related Regulations:
Department of Labor (“DOL”): Records to be Kept by Employers, 29 C.F.R. Part 516.
DOL: Exempt Employees, 29 C.F.R. Part 541.
DOL: Overtime Compensation, 29 C.F.R. Part 778.
DOL: Hours Worked, 29 C.F.R. Part 785.
Portal to Portal Pay Act (1947)
10 July 2006
Portal to Portal Pay Act (1947), 29 U.S.C. §§251-262
Coverage and Prohibition: This Act applies to all employees subject to the Fair Labor Standards Act (“FLSA”), and the intent of the legislation was to abolish certain judicial interpretations of the FLSA. The Supreme Court had held that the time employees spent walking from the plant gates to their work benches and in tasks that were preparatory to their day’s work must be counted as hours worked in computing pay and overtime. To alter this holding, the Act bans suits by employees to recover back pay for time spent on site before and after completion of the employees’ “principal activities” unless that time was considered compensable under a contract, custom, or practice in the plant.
Equal Pay Act (1963)
10 July 2006
Equal Pay Act (1963), 29 U.S.C. §206(d)
Coverage and Prohibition: The Equal Pay Act amended the Fair Labor Standards Act (“FLSA”) and covers the same employers. The Act prohibits an employer from discriminating on the basis of sex by paying persons of one sex less than the wage paid to persons of the opposite sex in the same establishment “for equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions.” Excepted are wage differentials based on seniority, merit pay, and piecework, and a “differential based on any other factor other than sex.” In addition, the Act does not exempt any employees from its coverage, as the FLSA does.
Enforcement: The Act is administered by the Equal Employment Opportunity Commission (“EEOC”), but employees are not required to file a charge with the EEOC before filing suit.
Remedies: A successful complainant may receive back pay for up to two years (or three years if the employer’s violation is willful). The court may award liquidated damages in an amount equal to the back pay. Attorney’s fees also are available to the successful plaintiff. These cases may be tried to a jury.
Regulations:
Department of Labor: Records to be Kept by Employers, 29 C.F.R. Part 516.
Equal Employment Opportunity Commission (“EEOC”): The Equal Pay Act, 29 C.F.R. Part 1620.
EEOC: The Equal Pay Act — Procedures, 29 C.F.R. Part 1621.
Civil Rights Act of 1964
10 July 2006
Civil Rights Act of 1964
Title VI - Nondiscrimination in Federally Assisted
Programs, 42 U.S.C. §2000d
Coverage and Prohibition: Programs and activities receiving federal financial assistance are prohibited from excluding persons on the basis of race, color, or national origin.
Enforcement: Enforcement actions can be undertaken by the agency granting financial assistance, and such actions are subject to judicial review.
Remedies: Penalties include termination of federal assistance.
Related Regulations:
Nondiscrimination Under Programs Receiving Federal Assistance Through the Department of Education, 34 C.F.R. Part 100.
Department of Education: Practice and Procedure for Hearings Under Part 100 of this Title, 34 C.F.R. §101.
Equal Employment Opportunity Commission: Procedure for Complaints of Employment Discrimination Filed Against Recipients of Federal Financial Assistance, 29 C.F.R. Part1691.
Civil Rights Act of 1964
10 July 2006
Civil Rights Act of 1964
Title VII – Equal Employment Opportunity, 42 U.S.C. §§2000e et seq.
Coverage and Prohibition: Employers with 15 or more employees are prohibited from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment because of that individual’s race, color, religion, sex, or national origin.
Enforcement: Title VII is administered by the Equal Employment Opportunity Commission (“EEOC”), and employees must file a charge of discrimination with the EEOC (or with qualified state agencies) as a condition to filing a private suit. The EEOC investigates and attempts conciliation between the employer and the employee. The EEOC also may bring suit in federal court against an uncooperative employer.
Remedies: Remedies include back pay, reinstatement, retroactive seniority, and appropriate equitable relief (e.g., an injunction). In addition, an employee alleging intentional (not “disparate impact”) discrimination may seek compensatory damages (e.g., for pain, suffering, etc.) and punitive damages up to maximum limitations established by the Civil Rights Act of 1991 (see below). When damages are sought in a case alleging intentional discrimination, either party may demand a jury trial. Attorneys’ fees, including expert fees, may be awarded to the prevailing party.
Related Regulations:
EEOC: Procedural Regulations, 29 C.F.R. Part 1601.
EEOC: Records and Reports, 29 C.F.R. Part 1602.
EEOC: Guidelines on Discrimination Because of Sex, 29 C.F.R. Part 1604.
EEOC: Questions and Answers on Pregnancy Discrimination, 29 C.F.R. Part 1604, Appendix.
EEOC: Guidelines on Discrimination Because of Religion, 29 C.F.R. Part1605.
EEOC: Guidelines on Discrimination Because of National Origin, 29 C.F.R. Part 1606.
EEOC: Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. Part 1607.
EEOC: Affirmative Action Appropriate Under Title VII, 29 C.F.R. Part 1608.
EEOC: Availability of Records, 29 C.F.R. Part 1610.
EEOC: Equal Employment Opportunity in the Federal Government, 29 C.F.R. Part 1614.
Executive Order No. 11246 (1965)
10 July 2006
Executive Order No. 11246 (1965), 30 Fed. Reg. 12319
Coverage and Prohibition: By this Order, every employer with a federal contract of $10,000 or more is prohibited from discriminating against employees or job applicants on the basis of race, color, religion, sex, or national origin. For contractors employing 50 or more employees and contracts exceeding $50,000, the order requires written affirmative action plans regarding the utilization of minorities and females.
Enforcement: The Order is enforced by the Office of Federal Contract Compliance Programs (“OFCCP”) of the Department of Labor. There is no private right of action under the Order.
Remedies: The OFCCP may cancel, terminate, or suspend the employer’s federal contract and declare the employer ineligible to compete for future contracts.
Related Regulations:
OFCCP: Obligations of Contractors and Subcontractors, 41 C.F.R. Part 60-1.
OFCCP: Affirmative Action Programs, 41 C.F.R. Part 60-2.
OFCCP: Uniform Guidelines on Employee Selection Procedures, 41 C.F.R. Part 60-3.
OFCCP: Sex Discrimination Guidelines, 41 C.F.R. Part 60-20.
OFCCP: Guidelines on Discrimination Because of Religion or National Origin, 41 C.F.R. Part 60-50.
Higher Education Act (1965)
10 July 2006
(as amended by the Educational
Amendments of 1972, Title IX), 20 U.S.C. §§1681-1686
Coverage and Prohibition: The Act prohibits sex discrimination with respect to employees as well as students by any educational program or activity receiving federal financial assistance.
Enforcement: The Act is enforced by the individual agencies granting federal financial assistance. Private plaintiffs may bring suit under the Act.
Remedies: For private plaintiffs, back pay and reinstatement or nondiscriminatory placement are among the remedies permitted by the Act. Agency enforcement action may lead to the termination of funding.
Related Regulations:
Department of Education: Nondiscrimination on the Basis of Sex in Education Programs and Activities Receiving Federal Financial Assistance, 34 C.F.R. Part 106.
Equal Employment Opportunity Commission: Procedures for Complaints of Employment Discrimination Filed Against Recipients of Federal Financial Assistance, 29 C.F.R. Part 1691.
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