Everyone who works a job has seen the same poster on a wall or a bulletin board at his place of employment: Equal Employment Opportunity Is THE LAW. (The last two words are usually in all caps and in a much larger font and in a different color than the first four words.)
The poster says that applicants to and employees of “most private employers, state and local governments, educational institutions, employment agencies and labor organizations” are protected under federal law from discrimination on the basis of race, color, religion, sex, national origin, disability, age, sex in the payment of wages, and genetics. The poster also explains the different forms of discrimination and the laws that make them illegal.
Title VII of the Civil Rights Act of 1964, as amended, “protects applicants and employees from discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex (including pregnancy), or national origin.” Religious discrimination includes failing to reasonably accommodate an employee’s religious practices where the accommodation does not impose “an undue hardship.”
Title I and Title V of the Americans with Disabilities Act of 1990, as amended, “protect qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment.” Disability discrimination “includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship.”
The Age Discrimination in Employment Act of 1967, as amended, “protects applicants and employees 40 years of age or older from discrimination based on age in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment.”
Title VII of the Civil Rights Act, as amended, and the Equal Pay Act of 1963, as amended, prohibit “sex discrimination in the payment of wages to women and men performing substantially equal work, in jobs that require equal skill, effort, and responsibility, under similar working conditions, in the same establishment.”
Title II of the Genetic Information Nondiscrimination Act of 2008 “protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment.” It also “restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information.”
These laws also “prohibit covered entities from retaliating against a person who files a charge of discrimination, participates in a discrimination proceeding, or otherwise opposes an unlawful employment practice.” And what does an employee or potential employee do if he suspects that discrimination has occurred? Because “there are strict time limits for filing charges of employment discrimination,” he should “promptly” contact the U.S. Equal Employment Opportunity Commission (EEOC) in Washington, D.C., or one of its fifteen field offices in the districts of Atlanta, Birmingham, Charlotte, Chicago, Dallas, Houston, Indianapolis, Los Angeles, Memphis, Miami, New York, Philadelphia, Phoenix, San Francisco, or St. Louis “to preserve the ability of EEOC to act on your behalf and to protect your right to file a private lawsuit.”
The poster goes on to specify that “applicants to and employees of companies with a Federal government contract or subcontract are protected under Federal law from discrimination” based on race, color, religion, sex, disability, or national origin. But it also adds that employers with federal contracts are required to take “affirmative action to ensure equality of opportunity in all aspects of employment.” Discrimination based on race, color, disability, or national origin “in programs or activities receiving Federal financial assistance” is also prohibited, as is employment discrimination “on the basis of sex in educational programs or activities which receive Federal financial assistance”.
Anyone who believes that a federal contractor “has violated its nondiscrimination or affirmative action obligations” should immediately contact the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). Anyone who believes that he has “been discriminated against in a program of any institution which receives Federal financial assistance” should immediately contact the agency providing the assistance.
Next to the poster in question is often found an “EEO is the Law” poster supplement. It adds, for employers holding federal contracts or subcontracts, “sexual orientation” and “gender identity” to the list of things that discrimination in employment cannot be based on.
These posters are mandated by the federal Equal Employment Opportunity Commission (EEOC), the federal agency “responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.” These laws “apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.”
Although the EEOC formally began operation in July 1965, its roots go back before U.S. involvement in World War II. According to the official history of the EEOC, Franklin D. Roosevelt signed Executive Order 8802 “prohibiting government contractors from engaging in employment discrimination based on race, color or national origin.” Roosevelt issued the executive order “primarily to ensure” that there were “no strikes or demonstrations disrupting the manufacture of military supplies as the country prepares for War.”
In March 1961, John F. Kennedy signed Executive Order 10925 “prohibiting federal government contractors from discriminating on account of race and establishing the President’s Committee on Equal Employment Opportunity.” Every federal contract was required to include the pledge “The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action, to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” The original focus was negative: applicants for positions should be judged on their merits without any consideration of their race, creed, color, or national origin. In June 1963, Congress passed the Equal Pay Act of 1963 (EPA) to protect men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.
In 1965, President Lyndon B. Johnson gave the commencement address at Howard University at which he said, “It is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. We seek not just equality as a right and a theory but equality as a fact and equality as a result.” He then signed Executive Order 11246, which stated, “It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all qualified persons, to prohibit discrimination in employment because of race, creed, color or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each department and agency.” In 1967, Johnson’s executive order was amended to prohibit discrimination on the basis of sex and Congress passed the Age Discrimination in Employment Act of 1967 (ADEA) to protect persons between 40 and 65 years old from discrimination in employment.
In December 1971, under President Richard M. Nixon, the Department of Labor issued Revised Order No. 4, which required all contractors to develop “an acceptable affirmative action program,” including “an analysis of areas within which the contractor is deficient in the utilization of minority groups and women, and further, goals and timetables to which the contractor’s good faith efforts must be directed to correct the deficiencies.” So after beginning as two words in a pledge by federal contractors to employ people without regard to race, color, creed, or national origin, “affirmative action” morphed into a program enforced by the EEOC.
The EEOC is a bipartisan commission composed of the chair, the vice chair, and three commissioners. All are appointed by the president with the advice and consent of the Senate for a term of five years. By law, not more than three commissioners can be members of the same political party. The EEOC also has a general counsel who is likewise appointed by the president with the advice and consent of the Senate, but for a term of four years. Two commission seats and the general counsel positions are currently vacant. The EEOC employs a little more than 2,000 people and has an annual budget of more than $364 million.
Most employers with at least fifteen employees are covered by EEOC laws, as are most labor unions and employment agencies. The EEOC “has the authority to investigate charges of discrimination against employers who are covered by the law.” Its role “in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding.” If the EEOC finds that discrimination has occurred, it tries to settle the charge. If unsuccessful, the agency has “the authority to file a lawsuit to protect the rights of individuals and the interests of the public.” The EEOC also works “to prevent discrimination before it occurs through outreach, education and technical assistance programs” and “provides leadership and guidance to federal agencies on all aspects of the federal government’s equal employment opportunity program.”
The EEOC always has a number of lawsuits in progress against companies large and small, regional and national, because of alleged acts of discrimination. Here are some that were settled just in the last quarter of 2018.
An Applebee’s Neighborhood Bar + Grill in New York will have to pay $100,000 and furnish other relief to settle a lawsuit for sex-based harassment and retaliation filed by the EEOC. According to the lawsuit, “restaurant staff verbally harassed the employee, a transgender woman, by making crude and derogatory references to her transgender status and repeatedly and intentionally referring to her with a male name and male pronouns.”
A Mississippi restaurant named “Georgia Blue” will have to pay a former employee $25,000 and furnish other relief to settle a religious- discrimination lawsuit filed by the EEOC. According to the lawsuit, when a waitress “learned the company’s dress code required servers to wear blue jean pants,” she notified the manager of her religious belief “that women should wear only skirts or dresses and asked to be allowed to wear a blue jean skirt.” Her request was denied because it violated the company dress code.
Whole Foods Market, headquartered in Austin, Texas, will have to pay $65,000 and provide other relief to settle a disability-discrimination lawsuit brought by the EEOC. According to the lawsuit, “Whole Foods Market violated federal law by failing to accommodate and firing an employee because of her disability.” The employee had taken time off after undergoing a kidney transplant.
A county in Texas will have to pay $115,000 to a female former county doctor to settle a pay-discrimination lawsuit filed by the EEOC. According to the lawsuit, the county “hired a male physician to perform the same duties” as the female doctor, but at a higher annual salary.
A family of nursing and health- care facilities in upstate New York will have to pay $465,000 and furnish other relief to settle a pregnancy- and disability-discrimination lawsuit filed by the EEOC. According to the lawsuit, the facilities “failed to accommodate disabled workers,” “denied leave as a reasonable accommodation to individuals with disabilities,” “fired employees on the basis of pregnancy,” and “failed to accommodate pregnancy-related medical restrictions.”
Sherwood Food Distributors, one of the largest independent distributors in the U.S. meat and food industry, will have to pay $3.6 million and provide other relief to settle a class sex-discrimination lawsuit filed by the EEOC. According to the lawsuit, the company “discriminated against a class of female applicants at its warehouses in Cleveland, Ohio and Detroit, Michigan by refusing to hire them for entry-level positions because of gender.”
Whether the actions of the companies were right or wrong, justified or unjustified, or ethical or unethical is not the point. The issue at stake is the role of the federal government in combating discrimination.
EEOC lawsuits — and indeed, the very existence of the EEOC — are predicated on the idea that the government should prevent and punish acts of discrimination in employment that are not reasonable, rational, logical, necessary, or justified. And it is the government alone that decides what constitutes unreasonable, illogical, unnecessary, or unjustified discrimination.
But since discrimination is not aggression, force, or violence, it shouldn’t matter, insofar as the law is concerned, on what basis the discrimination takes place, why the discrimination occurs, or what anyone thinks about it. That the discrimination is based on stereotypes, false assumptions, or prejudices should be irrelevant insofar as the law is concerned. That the discrimination is due to racism, “sexism,” or “xenophobism” should be immaterial insofar as the law is concerned. That the discrimination is thought to be unfair, baseless, or nonsensical should be of no consequence insofar as the law is concerned. To outlaw discrimination is to outlaw freedom of thought and freedom of association. And if a business owner cannot restrict whom he employs, then he has no property rights.
There are a number of things that can be said concerning workplace discrimination in a free society. In a free society, no one is entitled to any particular job, even if he is fully qualified for it. In a free society, barring an employment contract of some kind, it is perfectly legal for employers to fire employees at any time and for any reason. In a free society, employers can refuse to hire any applicant for any reason. In a free society, no one is entitled to a particular rate of pay, no matter what any other employee is paid. In a free society, it is entirely up to employers if they want to provide employees with accommodations. In a free society, employers have full control over the dress code of their employees. In a free society, those who object to a company’s hiring, promotion, pay, or benefit practices can seek employment elsewhere, protest the company’s policies, boycott the company, and try to persuade others to do likewise. What they cannot do is enlist the support of government to employ them or keep them employed. In a free society, government would not interfere in any way with the employer-employee relationship. And, of course, in a free society, there would be no Department of Labor or EEOC.
So what about those EEOC lawsuits? Not only should they never have been settled, they should never have been filed in the first place. In a free society, if someone is sexually harassed in the workplace, he or she has two options: persuade the employer to make the harassment stop or find another job. If an actual crime has been committed, then complaint should be made to the appropriate local or state law- enforcement agency. The federal government should have nothing to do with it. In a free society, it is entirely up to employers whether they will accommodate employees’ religion, pregnancy, or disability. An employee who wants an accommodation for any of those things has two options: persuade the employer to grant the accommodation or find another job. The federal government should have nothing to do with it.
In a free society, the rate of one’s pay is strictly a matter between the employer and each individual employee. The fact that another employee receives a different rate of pay for doing the same job should be irrelevant from a legal perspective. An employee who wants a pay increase has two options: persuade his employer to give him a raise or find another job. The federal government should have nothing to do with it. And since no one in a free society is entitled to any particular job, there should be no recourse available to anyone who is denied employment because of his or her sex.
That doesn’t mean that the discrimination practiced at or by the companies was right, moral, ethical, justified, reasonable, logical, or necessary. It just means that it is not the proper role of the federal government to prevent or punish acts of discrimination.
Equal Employment Opportunity may be the law, but, like most of the laws that the federal government has enacted, it is bad law.
Although employment discrimination based on race, color, creed, complexion, religion, religious piety, sex, sexual orientation, gender identity, national origin, pregnancy, age, disability, dress, political affiliation, ideology, marital status, familial status, or physical appearance (height, weight, hairstyle, facial hair, tattoos, scars, et cetera), ancestry, criminal record, citizenship, immigration status, health, IQ, or socio-economic status is neither necessary in, nor essential to, a free society, the absolute freedom to discriminate in employment on the basis of any one of them, all of them, or other factors is crucial and indispensable. A free society may or may not be free of discrimination, but a free society is certainly free of discrimination laws.
This article was originally published in the February 2019 edition of Future of Freedom.