Today’s landscape of diversity, equity, and inclusion (DE&I) laws originated nearly 60 years ago with the enactment of federal anti-discrimination statutes, such as the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. These landmark statutes paved the way for modern-day DE&I laws, and employers now have guidance on what does (and does not) work to promote diversity, equity, and inclusion in the workplace. The most instructive resource is the history of the anti-discrimination statutes. Indeed, the history of these laws continues to serve as an impressive reminder of where we started, where we are, and how far we must go.
Defining DE&I
After taking office in 2021, President Biden signed Executive Order 14035 to advance DE&I in the federal workforce. The President recognized that the Federal Government, as the nation’s largest employer, should function as a model for DE&I “where all employees are treated with dignity and respect.” Within the Executive Order, the term diversity is defined as “the practice of including the many communities, identities, races, ethnicities, backgrounds, abilities, cultures, and beliefs of the American people, including underserved communities.” The Order defines equity as “the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment.” As for inclusion, the Order defines the term as “the recognition, appreciation, and use of the talents and skills of employees of all backgrounds.” Although these definitions shine a much-needed light on the meaning of DE&I, this clarity only came in 2021—almost 60 years after the passage of the first legislative act geared toward equality in the workplace. This new guidance is not without problems, however. Legislatures and courts face new challenges as they ensure that each of the moving pieces—foundational anti-discrimination laws, prior court precedent interpreting those laws, and Executive Order 14035—conform with, rather than contradict, each other.
Foundational Anti-Discrimination Laws
The Equal Employment Opportunity Commission (EEOC) enforces federal laws that prohibit discrimination against an employee or job applicant based on the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability, or genetic information. The EEOC covers most employers with at least fifteen employees, which includes most labor unions and employment agencies. The EEOC’s laws , and enforcement power, encompass all stages of employment: hiring, firing, promotions, harassment, training, wages, and benefits. Because enforcement requires employees to speak out against their employers, each law contains provisions making it illegal for an employer to retaliate against an employee who complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. However, even with the protection of federal laws and additional anti-retaliation provisions, courts still wrestle with cases of workplace diversity and discrimination. The following offers insight into the federal laws that lay at the heart of DE&I and gives a preview of new laws which expand the reach of those foundational anti-discrimination statutes.
Equal Pay Act of 1963
The first legislative anti-discrimination act was the Equal Pay Act (EPA) in 1963. This law protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. The EPA covers all forms of pay, including salary, overtime pay, bonuses, stock options, profit sharing, and more. The Lilly Ledbetter Fair Pay Act amended the EPA and specified that the 180-day statute of limitations for filing an equal-pay lawsuit for pay discrimination resets with each new discriminatory paycheck. Its enactment was a response to a Supreme Court decision holding that the statute of limitations for presenting an equal-pay lawsuit begins to run on the date the pay was agreed upon, not on the date of the most recent paycheck. (Ledbetter v. Goodyear Tire and Rubber Co., 550 U.S. 618 (2007)). The Lilly Ledbetter Fair Pay Act bolsters the effectiveness of the EPA by providing an expanded statute of limitations period for plaintiffs to bring a claim.
To better understand the EPA and its relationship to the court system, EEOC v. Enoch Pratt Free Library, 509 F. Supp. 3d 467 (D. Md. 2020) illustrates a modern-day EPA violation. There, female branch managers filed suit and asserted that their employer, a public library, violated the EPA when it failed to pay them an equal salary for equal work. The court recognized that although the library ran several branches of different sizes, collections, and demographics, the manager positions for each branch remained the same in terms of required training, experience, qualifications, and core duties. Despite performing identical duties, the female plaintiffs received a salary of $68,900 less than their male counterparts. The court upheld the EEOC’s wage-based discrimination claim because even though some differences existed among the branches, “none of the[se] differences translated into job duties that differed significantly from one another.” As such, the library’s practice violated the EPA.
Title VII of the Civil Rights Act of 1964
While the EPA protects against sex-based wage discrimination, Title VII of the Civil Rights Act (“Title VII”) prohibits discrimination based on a person’s race, color, religion, national origin, or sex. Enacted in 1964, this Act created the most comprehensive civil rights legislation since the Reconstruction Era. Title VII has provided a vehicle for diverse employees to challenge the myriad inequalities within their workplaces. Case law illustrates the wide applicability of Title VII and how its terms are flexible enough to include modern forms of discrimination. The two most recent expansions to Title VII include: (1) ending forced arbitration for sexual assault and sexual harassment claims and (2) protecting transgender individuals.
In 2022, Congress passed House Resolution 4445, otherwise known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” As its name suggests, this law invalidates employee contract provisions that bind victims of sexual assault and harassment to the confines of arbitration. Cases decided prior to the passage of this law illustrate the necessity of having (and keeping) a federal law that ends such forced arbitration. In Hay v. Summit Funding, 2017 WL 4772729 (Ohio Ct. App. Oct. 17, 2017), the plaintiff, a loan officer, had filed a civil suit alleging severe and frequent sexual harassment by a co-worker. Specifically, the plaintiff alleged that she was required to work alone in a branch office with an employee who targeted her with “sexually charged comments both verbally and via text and picture messaging.” The plaintiff further alleged that the co-worker took a picture of her backside and published it to their superior as well as made repeated sexual advances, became physically violent, and threatened to withhold overtime pay. The harasser and the superior filed a motion to compel arbitration, relying on the terms of an arbitration agreement the plaintiff had signed when she was hired. The trial court invalidated the mandatory arbitration provision, but the Ohio Court of Appeals reversed, holding that the plaintiff’s sexual harassment claims fell within the scope of her employment contract. This case is only one of many examples which demonstrated the imperative need to end forced arbitration for claims of sexual assault and sexual harassment in the workplace.
2. Title VII’s Protections for Transgender Persons
Recently, a federal district court in Georgia upheld an officer’s allegation that the county-health-plan improperly denied her coverage for a sex-change procedure and related genital surgery. (Lange v. Houston Cnty., Georgia, No. 5:19-CV-392 (MTT), 2022 WL 1812306 (M.D. Ga. June 2, 2022)). The Georgia district judge relied on the Supreme Court’s 2020 decision in Bostock v. Clayton Cnty., Georgia, 590 U.S. __ (2020)(extending Title VII protections to gender identity discrimination) and ruled that the exclusion for “sex change surgery” contained in the county’s insurance policy discriminated against transgender plan participants on its face. Undisputed facts revealed that the health plan covered medically necessary mastectomies, but not if the medical necessity was a sex-change procedure. Similarly, the plan covered hormone replacement therapy for the medical necessity of treating menopause, but not for the medical necessity of sex-change. The judge concluded that this exclusion applied only to transgender participants and, therefore, violated Title VII.
Americans with Disabilities Act of 1990
The Americans with Disabilities Act (ADA) makes it illegal to discriminate against a qualified person with a disability in the private sector and in state and local governments. In fact, the ADA of 1990 made its mark as the world’s “first comprehensive declaration of equality for people with disabilities.” In 2008, Congress amended the 1990 bill with the ADAAA—that is, the “ADA Amendments Act.” Along with maintaining the original purpose of the 1990 ADA, the ADAAA overturned Supreme Court decisions that interpreted the definition of “disability” too narrowly. By expanding this definition, Congress widened the statute’s protection to individuals who: (1) have a physical or mental impairment that substantially limits major life activities, (2) have a record of such an impairment, or (3) are regarded as having such an impairment. In the following years, federal courts began broadening the extent of the statute’s “physical impairment” language. For example, in the 2011 case of Norton v. Assisted Living, a Texas Federal District Court held that renal cancer was a “physical impairment” covered under the ADAAA’s regulations. That same year in Medvic v. Compass Sign Co., LLC, No. 10-5222, 2011 WL 3513499, at *5 (E.D. Penn. Aug. 10, 2011), a Pennsylvania Federal District Court held that stuttering also constituted a physical impairment covered by the statute. Then, in Price v. UTI. Inc., No. 4:11-CV-1428 CAS, 2013 WL 798014, at *3 (E.D. Mo. Mar. 5, 2013), a Missouri District Court held that the term “physical impairment” under the ADAAA includes impairments or complications related to pregnancy.
Conclusion
When it comes to DE&I practices, employers must recognize that promoting diversity, equity, and inclusion in the workplace is an ongoing commitment rather than a simple one-size-fits-all policy. This type of commitment requires embracing the goal of having and appreciating a diverse workforce and requires employers to put forth the time, resources, and creativity to accomplish that goal. Prior to the 1960s, Americans enjoyed no safeguards to ensure an inclusive workplace that respected people’s differences. The enactment of federal anti-discrimination statutes changed this reality and allowed for the creation of the more expansive DE&I laws and initiatives seen today. While all progress deserves celebration, American workplaces must continue to strive toward the goal of treating all employees fairly and equally. Indeed, it is this uniform treatment that will allow employees to perform their work effectively and efficiently.