National Guidelines in the United States - Equal Employment Opportunity Commission

The EEOC produces a large amount of guidance material and many publications. Some examples are set out below.

Equal Employment Opportunity Commission’s Guidelines of Discrimination because of Sex

These Guidelines deal with the question of sex as a bona fide occupational qualification (29 CFR §1604.2). The Commission believes that this exception must be interpreted narrowly. For example, the following would not warrant the application of the bona fide occupational qualification exception:

• The refusal to hire a woman because of her sex based on assumptions on the comparative employment characteristics of women in general. For example, the assumption that the turnover rate among women is higher than among men.
• The refusal to hire an individual based on stereotyped characterizations of the sexes. Such stereotypes include, for example, that men are less capable of assembling intricate equipment or that women are less capable of aggressive salesmanship. The principle of nondiscrimination requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group.
• The refusal to hire an individual because of the preferences of co-workers, the employer, clients or customers (except as covered by an exception in paragraph 1604.2(a)(2) of the Guide).

According to 29 CFR §1604.3, it is also unlawful to classify a job as "male" or "female" or to maintain separate lines of progression or separate seniority lists based on sex where this would adversely affect any employee.

29 CFR §1604.4 reiterates that an employer’s rule which forbids or restricts the employment of married women and which is not applicable to married men is discrimination based on sex prohibited by title VII of the Civil Rights Act of 1964.

Likewise, 29 CFR §1604.5 prohibits a help-wanted advertisement that indicates a preference, limitation, specification, or discrimination based on sex unless sex is a bona fide occupational qualification for the job involved. It is also unlawful for an employer to discriminate between men and women with regard to fringe benefits (29 CFR §1604.9). Similarly, a written or unwritten employment policy or practice which excludes as employment applicants or employees because of pregnancy, childbirth or related medical conditions is in prima facie violation of title VII of the Civil Rights Act (Section 1604.10).

Employment agencies must also be careful not to discriminate in any way against any individual because of sex (29 CFR §1604.6).

Finally, the whole of 29 CFR §1604.11 is dedicated to sexual harassment, which is a violation of 29 CFR §703 of title VII of the Civil Rights Act. Sexual harassment is defined as unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature, when:

• submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; or,
• submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or,
• such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Equal Employment Opportunity Commission’s Guidelines on Affirmative Action Appropriate under Title VII of the Civil Rights Act

Among other things, 29 CFR §1608.1 underlines that the principles of:

• nondiscrimination in employment because of sex;
• that each person subject to title VII should take voluntary action to correct the effects of past discrimination and to prevent present and future discrimination without awaiting litigation; and,
• voluntary action and litigation are mutually consistent and interdependent methods of addressing social and economic conditions which precipitated the enactment of title VII.

29 CFR §1608.3 defines the circumstances under which voluntary affirmative action is appropriate. The following criteria must be taken into consideration:

Adverse effect: title VII prohibits practices, procedures, or policies which have an adverse impact unless they are justified by business necessity. In addition, title VII proscribes practices which "tend to deprive" persons of equal employment opportunities. Employers, labour organizations and other persons subject to title VII may take affirmative action based on an analysis which reveals facts constituting actual or potential adverse impact, if such adverse impact is likely to result from existing or contemplated practices.

Effects of prior discriminatory practices: employers, labour organizations, or other persons subject to title VII may also take affirmative action to correct the effects of prior discriminatory practices. The effects of prior discriminatory practices can be initially identified by a comparison between the employer's work force, or a part thereof, and an appropriate segment of the labour force.

Limited labour pool: because of historic restrictions by employers, labour organizations, and others, there are circumstances in which the available pool, particularly of qualified minorities and women, for employment or promotional opportunities is artificially limited. Employers, labour organizations, and other persons subject to title VII may, and are encouraged to take, affirmative action in such circumstances, including, but not limited to, the following:

• training plans and programs, including on-the-job training, which emphasise providing minorities and women with the opportunity, skill, and experience necessary to perform the functions of skilled trades, crafts, or professions;
• extensive and focussed recruiting activity;
• elimination of the adverse impact caused by non-validated selection criteria;
• modification through collective bargaining where a labour organization represents employees, or unilaterally where one does not, of promotion and layoff procedures.

The Guidelines also deal with the establishment of affirmative action plans (29 CFR §1608.4). Notably, these plans must contain three elements:

• a reasonable self analysis;
• a reasonable basis for concluding action is appropriate; and,
• reasonable action.

The EEOC Uniform Guidelines on Employee Selection Procedures

These Guidelines are an example of a large amount of guidance material provided by the EEOC. The provide that employer policies or practices, which have an adverse impact on employment opportunities or any race, sex or ethnic group, are illegal unless justified by business necessity.