U.S. Chamber on Equal Employment Opportunity Issues
RSS Issue FeedThere is considerable activity in Congress and in federal government agencies on equal employment opportunity (EEO) issues. This page presents an overview of some of the more significant EEO policy debates, the Chamber's positions and actions on these issues, and resources for further information.
Americans with Disabilities Act Amendments
The Americans with Disabilities Act (ADA), enacted in 1990, has served a critical role in enhancing equal employment opportunity for qualified workers while at the same time balancing the needs of employers by limiting the opportunities for frivolous litigation.
Federal courts have improperly interpreted the ADA and have inappropriately narrowed its scope. Last year, legislation (H.R. 3195, S. 1881) was introduced to correct this problem. Unfortunately, the bill's provisions were extremely broad, going far beyond reversing the narrow court decisions. Consequently, the Chamber opposed the bill, as detailed in the letters and testimony below.
While opposing the bill, the Chamber entered into a dialogue with others in the business community and the disability community to see if common ground could be reached. We are pleased that, after many months of discussions, that we have been able to find common ground with the disability community and are now hoping that policymakers on Capitol Hill and in the Administration will agree that we have found a workable solution.
On June 25, the House passed H.R. 3195 with an amendment embodying the compromise reached with the disability community by a vote of 402 to 17. On July 31, Senators Harkin (D-IA) and Hatch (R-UT) introduced similar legislation (S. 3406).
Pre-Compromise
>> Chamber Letter to the Hill on ADA Restoration (PDF)
August 22, 2007
>> Business Coalition Letter Opposing H.R. 3195/ S, 1881 (PDF) December 12, 2007
>> Chamber Testimony in Opposition to H.R. 3195, (PDF)
October 4, 2007
>> Business Coalition letter opposing H.R. 3195 (PDF)
January 28, 2008
Post- Compromise
>> Chamber Letter to the House Committee on Education and Labor (PDF) June 18, 2008
>> Chamber Letter to the House Judiciary Committee (PDF)
June 18, 2008
>> Alliance Letter to the House of Representatives (PDF)
June 23, 2008
>> Chamber Letter to the House of Representatives
June 24, 2008
>> Chamber Testimony at Senate "Roundtable" on the Proper Scope of Coverage Under the
Statute of Limitations
Title VII of the Civil Rights Act of 1964, like virtually all civil and criminal laws, has a statute of limitations under which claims must be brought to ensure that matters can be resolved while memories are fresh and before evidence is lost and witnesses become unavailable or die. The Supreme Court, in Ledbetter v. Goodyear Tire & Rubber Co., Inc., a decision issued in May 2007, said that in Title VII cases of pay discrimination the statue of limitations period begins to run when an allegedly discriminatory pay decision is made and communicated to an employee. It rejected the plaintiff's argument that the statute of limitations should re-start each time the employee receives a paycheck that could possibly reflect a decision made long ago. The Chamber strongly supports the Court's decision and the
The Lilly Ledbetter Fair Pay Act (H.R. 2831) and the Fair Pay Restoration Act (S. 1843) were purportedly introduced to overturn the Supreme Court's decision and would re-start the statute of limitations each time a paycheck or other form of compensation (such as a retirement benefit) were issued, even if it were many years later. The bills would also increase frivolous litigation and make suits more difficult to settle by expanding the class of people would could bring claims and are far broader than the Ledbetter decision in that they would also apply to claims of unintentional discrimination. The Chamber strongly opposes these bills.
>> NCLC Brief in Ledbetter v. Goodyear Tire & Rubber Co., Inc.
>> Chamber Testimony Supporting the Supreme Court's Decision, June 12, 2007
>> Chamber Testimony Supporting the Supreme Court's Decision, June 28, 2007
>> Chamber Letter to Members of the U.S. House of Representatives in opposition to H.R. 2831
>> Chamber Key Vote Letter to the U.S. Senate on Ledbetter Fair Pay Act April 21, 2008 (PDF)
Comparable Worth and Equal Pay
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex. Similarly, the Equal Pay Act requires equal pay for men and women performing equal work. Various proposals have been introduced in Congress to significantly amend and expand these laws, including the Paycheck Fairness Act (H.R. 1338, S. 766) and the Fair Pay Act (H.R. 2019, S. 1087).
One major policy these bills would advance is the concept of comparable worth. Comparable worth seeks to move beyond the concept of equal pay for equal work and instead achieve equal pay for work of comparable value, though it be unequal. This would thrust federal agencies and the courts into the business of setting compensation and judging which jobs are of equal value to society. While the Fair Pay Act seeks to accomplish this overtly, the Paycheck Fairness Act takes a more indirect route, by having the Labor Department establish "guidelines." Unfortunately, there is a long history in employment law of guidelines, even if they are labeled as "voluntary," as being relied upon by the courts and becoming, in effect, mandatory.
The bills also seek to significantly reduce employer defenses under the Equal Pay Act and make unlimited punitive and compensatory damages available for violations, even if they are unintentional. The Chamber strongly opposes these bills and has testified in opposition to the Paycheck Fairness Act.
On July 31, 2008, the House passed H.R. 1338 by a vote of 247 to 178. The House-passed bill contains several important amendments, such as eliminating the comparable worth guidelines and limiting the application of punitive damages. However, the bill would still radically expand the EPA in ways that would significantly increase the opportunity for frivolous litigation and hamstring and employer's ability to defend legitimate pay disparities.
>> Chamber Testimony in Opposition to H.R. 1338, July 11, 2007
>> Chamber letter to House Education and Labor Committee July 14, 2008
>> Chamber letter to House of Representatives July 31, 2008
Sexual Orientation
Congress is debating passage of legislation prohibiting employment discrimination based on sexual orientation and possibly gender identity. The Chamber had significant concerns with early drafts of the legislation (H.R. 2015). For example, the extent to which the bill would erode ERISA preemption or permit disparate impact claims to be brought. We have expressed these concerns to proponents of the legislation and it appears that the vast majority of these concerns were addressed when the House passed the Employment Nondiscrimination Act (H.R. 3685) on November 7, 2007. The Chamber continues to carefully monitor these bills as they move through the legislative process.
Expansion of Religious Accommodation Requirements
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religious belief and requires employers to accommodate religious observances or practices unless they cause an undue hardship on the conduct of the employer's business.
Some believe that Title VII has been interpreted in such a way that employers are not being required to accommodate enough religious practices. The Workplace Religious Freedom Act (H.R. 1431) would seek to redefine the concept on an "undue hardship" under Title VII and broaden the scope of religious practices employers would need to accommodate under Title VII. In particular, the bill would make it especially difficult for an employer to deny a request based on scheduling or dress or appearance codes.
The Chamber strongly opposes H.R. 1431 because it moves the line too far. In addition to concerns with respect to scheduling and dress and appearance codes, we have significant concerns that the bill would require accommodation of religious practices that might be offensive to other employees and create a hostile work environment for them placing employers in the position of needing to violate one law in order to conform with another. The Chamber has testified before Congress on these issues on very similar legislation introduced in past Congresses.
>> Chamber Testimony in Opposition to H.R. 1445, November 10, 2005
>> Supplemental Chamber Testimony on H.R. 1445, December 16, 2005
>> Testimony in Opposition to S. 1124, October 21, 1997
Historically, most labor and employment laws provided plaintiffs with equitable relief, meaning that they were entitled to back pay, attorneys' fees, injunctive relief, such as reinstatement, and other remedies intended to put them into the same position as if no wrong had occurred to them. The Civil Rights Act Amendments of 1991 changed that, largely because equitable relief was questioned as an effective remedy in those cases in which there were no economic damages, such as hostile work environment cases where no adverse employment actions are taken. The 1991 Amendments provided for compensatory and punitive damages (and thus made jury trials available) that are capped based on the size of the employer, between $50,000 and $300,000. The capped punitive and compensatory damages are available under Title VII and the Americans with Disabilities Act.
The Equal Remedies Act (S. 1928) would repeal the caps, making unlimited compensatory and punitive damages available for violations of Title VII and the
The Chamber supports the right of employers and employees to enter into pre-dispute binding arbitration agreements that obligate either party to resolve employment disputes through arbitration as opposed to litigation. Congress is considering legislation, such as the Arbitration Fairness Act (H.R. 3010, S. 1782) that would prohibit pre-dispute binding arbitration. Arbitration agreements have proven to be an effective means to resolving disputes and are typically quicker and less expensive than litigation. Prohibiting binding arbitration would only continue to move more disputes into courts, increase costs, and decrease the chances of amicable settlement. On July 15, 2008, the House Subcommittee on Commercial and Administrative Law passed H.R. 3010.
Unlimited Punitive and Compensatory Damages
Arbitration of Employment Disputes
Definition of "Applicant"
Determination of which individuals are to be considered applicants for particular jobs is an important matter for complying with various equal employment opportunity laws. The issue has become significantly more complicated in recent years with the dramatic rise in recruiting using the Internet. Two separate, but related, policy initiatives attempt to address the issues raised by Internet recruiting. First, on March 4, 2004, a multi-agency group proposed amending the Uniform Guidelines on Employee Selection Procedures. Shortly thereafter, on March 29, 2004, the Labor Department's Office of Federal Contract Compliance Programs (OFCCP) announced proposed companion regulations for federal contractors. The Chamber commented on both proposals, offering suggestions for improvement. The OFCCP finalized its regulations on October 7, 2005. Meanwhile, the multi-agency group has not yet finalized its guidance. In fact, on March 25, 2008, The EEOC requested to continue current practice for three years.
>> Chamber Comments to Multi-Agency Group (PDF)
May 3, 2004
>> Chamber Comments to OFCCP (PDF)
May 28, 2004
>> Chamber Comments to EEOC's Proposed Inaction (PDF) May 27, 2008
Age Discrimination and Employee Benefits
In August 2000, the U.S. Court of Appeals for the Third Circuit ruled in Erie County Retirees' Association v. County of Erie, that employers may violate the Age Discrimination in Employment Act (ADEA) if they provide different healthcare benefits to retirees who were Medicare-eligible than to those who were not yet eligible. Initially, the EEOC modified its enforcement manual to comply with the decision, but later rescinded this guidance so that it would not deter employers from providing retiree health benefits. On July 14, 2003, the EEOC proposed a regulation which would allow employers to offer differing benefits to Medicare-eligible retirees and thus fix the problems created by the Erie County case. The Chamber has filed comments (PDF) on the proposal and in early 2005 the EEOC was preparing to finalize its rule. Unfortunately, the AARP sued to prevent the EEOC from finalizing the rule and a federal district court enjoined the agency from moving forward. The court ultimately rejected the AARP's claim and, on June 5, 2007, the Third Circuit agreed. On December 26, 2007, the EEOC finalized its regulation and on March 24, 2008, The Supreme Court denied AARP's challenge to the regulation.
>> NCLC Brief: County of Erie, Pennsylvania v. Erie County Retirees Association, et al. (PDF)
Genetic Information
The Genetic Information Nondiscrimination Act (Pub.L. 101-233), legislation that would prohibit discrimination in insurance and employment based on an individual's genetic information, was enacted on May 21, 2008.
While the bill was improved at virtually every stage of the legislative process, the Chamber opposed it for several important reasons.
In addition to other concerns explained more fully in material referenced below, the bill also includes excessive damage provisions that will invite frivolous litigation and fails to preempt inconsistent state laws.
As part of our advocacy efforts against these bills, several years ago the Chamber helped form and now co-chairs the Genetic Information Nondiscrimination (GINE) Coalition. While the Chamber and the Coalition opposed this legislation, we worked with Congress to attempt to limit the opportunities for overbroad reach and unintended consequences.
>>Letter from 11 Senators expressing concerns with H.R. 493 (PDF) March 4, 2008
>> GINE Coalition Testimony on H.R. 493 (PDF)
January 31, 2007
>>Testimony by Larry Lorber on Genetic Non-Discrimination (PDF) July 22, 2004
>>Coalition Letter Opposing Inclusion of H.R. 439 into the FY 2008 Omnibus Appropriations Bill (PDF)
>>Chamber Letter to Members of the U.S. House of Representatives Opposing H.R. 493, (PDF)
March 27, 2007
>>Coalition Letter to Members of the U.S. House of Representatives Opposing H.R. 493