MEASURES FOR WOMEN WORKERS-Chapter 2 Measures by the Government Basic Policy The Federal Government has long acted on its acknowledged responsibility to improve the working conditions, opportunities for profitable employment, and other aspects of the welfare of wage earners, both men and women. Some State efforts to protect workers antedated the Federal legislation. Early State laws dealing with the workplace were concerned primarily with protecting women against exploitation and with special protection of their health and safety on the job. The States extended health and safety protection to men in especially hazardous working situations. The Federal effort until recently was focused on improving work standards and access to work for both men and women. In the past decade, the Federal interest broadened to assuring equal pay for equal work and equal opportunities for men and women, and to comprehensive safety and health regulations. The State effort broadened to include both men and women. Both Federal and State Governments have long recognized the vulnerability of women to exploitation within the workplace and have acted to prevent such exploitation. Their recent shift in emphasis from special protection for women workers to equal employment opportunity (equality of access to all jobs, equal pay, and equality in all terms of employment and economic status) reflects changes in the interests of many women, and has come as part of a broader human rights movement to eliminate discrimination on the basis of race, color, religion, sex, national origin, or, in some instances, marital status, age, or mental or physical handicap. Increasingly laws, and the agencies enforcing them, have become concerned with "systemic" discrimination more than individual complaints. Where courts have found patterns of employment that result in barriers against women or minorities, whether discrimination was intended or not, the Government has developed new policies with respect, for example, to recruitment, selection, placement, training, systems of transfer, promotion, seniority, and lines of progression. Further, it is now Federal Government policy to require Federal contractors to pledge "affirmative action." Affirmative action involves a survey by the employer to determine areas where minorities and women have not been given a fair share of the company's jobs at all levels, followed by the establishment of goals and timetables for correcting deficiencies. State or local governments, or private groups administering federally funded education and training programs must assure full participation or benefits regardless of sex, race, color, or national origin. The special efforts to assure equality of opportunity have been accompanied by continued government efforts to improve wages, working standards, and the health and safety of all employees. In the United States Federal system of Government, both the U.S. Government and State and local governments play a major role in regulating working conditions and work and income opportunities. The interpretation of the division of responsibility between the Federal Government and State and local governments has changed over time, with responsibility of the Federal Government being increased. Basically, the Federal Government has authority to set standards in employment affecting interstate commerce; this authority is now interpreted as applying to all but the smallest establishments. The States and localites can regulate any economic activity within their jurisdiction but where State and Federal laws are in conflict, the Federal law prevails unless it is specified that the State standard or the highest will prevail. Once Federal laws or regulations are promulgated, procedures are established to assure compliance. Some Federal labor laws provide for enforcement by State agencies, with Federal financial assistance where State law and enforcement procedures meet the Federal standard. The State has sole authority over such issues as marriage and property. Protective and Anti-Discrimination Laws and Executive Orders Now in Effect Most regulation by the Federal Government is established by legislation passed by the Congress and approved by the President. In addition, the authority of the President, conveyed by the Constitution, includes the power to issue Executive orders to carry out powers that are the prerogative of the office. State regulation is established by law, although fre. quently States delegate decisions about actual minimum wage rate levels and other standards to an executive agency. Protective Labor Legislation for All Workers Federal regulation of work standards is largely limited to establishing minimum wage rates and protecting occupational health and safety for all workers. Many State laws also set minimum wage rates and there are State laws to prevent workers from being defrauded of earned income and to regulate the frequency of wage or salary payments. Historically, however, State legislation was largely designed to provide special protection of women's pay and working conditions. (Because State laws are in a condition of flux as a result of policies against discrimination, they are discussed after these new policies are described.) Except for payment of prevailing rates on certain Government contracts, the requirement of equal pay for equal work and requirement of premium pay for overtime, neither Federal nor State laws regulate wage rates above the minimum. Neither do they require or regulate provision of such supplementary benefits as holidays or other leave by private employers, although many employers by unilateral action or agreement with unions provide a wide variety of supplementary benefits. (Discussed later in this chapter and in chapter 3 are measures to protect the income of workers when they are laid off because of economic conditions, or occupational injury or illness, or when they retire because of age or disability, as well as measures to provide vocational training, placement, and other services designed to improve opportunities for work.) The Federal Fair Labor Standards Act (FLSA), passed in 1938, establishes a floor for wages of both men and women in industries affected by interstate commerce and requires premium pay for work beyond a specified number of hours a week. Since the law went into effect, minimum wage levels have been repeatedly increased and coverage expanded, most recently in 1974. At present, approximately 58 million of the 83 million wage and salary employees in the United States are covered. The Wage and Hour Division of the U.S. Department of Labor enforces the FLSA with respect to all except Federal employees; the U.S. Civil Service Commission generally enforces it for Federal employees. Enforcement of the legislation was further strengthened by the 1974 amendments. (For more details, see appendix A, part 2.) The purpose of the Federal Occupational Safety and Health Act of 1970 is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources. ." The act, which went into effect on April 28, 1971, covers all private employers other than those subject to occupational safety or health standards under another Federal statute. The Occupational Safety and Health Administration of the U.S. Department of Labor carries out the re sponsibility of the Secretary of Labor for promulgating and enforcing standards under the legislation; the U.S. Department of Health, Education, and Welfare has responsibility for research and recommendations concerning standards. (See appendix A, part 2, for more information.) Laws Against Discrimination in Employment One of the most important legislative developments of the past decade has been the rapid enactment of laws against discrimination. This legislation has affected a variety of other laws, especially State legislation, that had established labor standards for women. The laws against discrimination were not conceived at one time in a single comprehensive package. Initial enactments permitted many exemptions from coverage, differed in strength of enforcement mechanisms, provided differently for persons in public and private employment, and were assigned to different agencies for administration. Amendments broadened the laws and strengthened enforcement, and many laws and regulations were added to meet particular problems. As a result of the rapidity with which the laws were enacted and amended, there developed a substantial overlapping in the laws and in administrative responsibility. As a result, emphasis is now shifting from enactment of new legislation to emphasis on coordination of enforcement efforts among Federal agencies. and to increased Federal-State cooperation. The major Federal prohibitions on sex discrimination in employment appear in the Equal Pay Act of 1963, as amended; the Civil Rights Act of 1964, as amended; and the Executive order for Federal contractors (E.O. 11246, as amended by E.O. 11375 in 1967). Many States and local jurisdictions have taken comparable actions. Equal Pay Act The first Federal law against sex discrimination in employment was the Equal Pay Act of 1963, although several States had enacted equal pay laws much earlier and certain wartime Federal regulations had already established the equal pay principle. The act prohibits an establishment from paying employees of one sex less than employees of the other sex for equal work on jobs requiring equal skill, effort, and responsibility and performed under similar working conditions. The work need not be identical but must be substantially equal. The law permits earnings differentials based on a seniority system, a merit system, a system relating earnings to quantity or quality of production, or any other factor other than sex. It prohibits reducing the wage rate of any employee in order to equalize pay between the sexes. It also prohibits labor organizations from causing or attempting to cause employers to violate the provision. Most provisions of the act became effective June 11, 1964. As an amendment to the Fair Labor Standards Act, it applied to all employees covered by the minimum wage provisions of the FLSA. As of July 1, 1972, it was extended to executive, administrative, and professional employees and outside sales personnel (all exempt from the minimum wage and overtime pay requirements of the FLSA). Extension of the minimum wage provisions of the Fair Labor Standards Act to government employees automatically extended the equal pay requirements to these workers. The Wage and Hour Division of the Department of Labor administers and enforces the equal pay law. In a series of successful cases in Federal courts, including the U.S. Supreme Court, the Department has won both strong interpretations of the law and large awards of back wages, predominantly for women. This record has strengthened the government's capacity to win compliance without going to court. From July 1972 through April 1975, $17,652,276 in income was restored to 48,895 people under supervision of the Secretary of Labor or through court action brought by him. In addition, the equal pay portions of two major equal opportunity conciliation agreements has won back wages of nearly $7 million each. Employees have also won substantial amounts through private litigation. Even more significant than the back wages are increases in current and future pay rates. Federal Government employees have had equal pay protection since the Classification Act of 1923 established a uniform salary scale for each grade and class of work, regardless of the sex of the worker. All but 5 of the 50 States now have either an equal pay or broader fair employment practices law that prohibits pay discrimination based on sex. Generally, State equal pay laws are enforced by the State labor department; fair employment laws, by a human rights commission. At least one State has established a single agency to administer all laws concerned with either employment or human relations. Title VII of the Civil Rights Act of 1964 A milestone in equal employment opportunity for women was reached with the passage of the Civil Rights Act of 1964. Title VII of that act, effective July 2, 1965, was broad in scope and coverage, prohibiting discrimination based on sex as well as race, color, religion, and national origin in all terms and conditions of employment. Congress established the bipartisan Equal Employment Opportunity Commission (EEOC) to administer the act, its five members to be appointed by the President. Over the years, the United States has found that creation of specialized administrative agencies or commissions is a more effective method of implementing legislation than through the courts alone. Such commissions quickly develop expertise which enables them to deal with the most difficult problems in their area of interest. Initially powers of the EEOC were limited largely to investigation and conciliation, but in 1972 title VII was amended to strengthen enforcement and extend coverage. Coverage now extends to private employers of 15 or more persons, public and private employment agencies, labor organizations with 15 or more members, educational institutions, and State and local governments. Not covered are private membership clubs and Indian tribes. A separate section of the law protects Federal employees and strengthens enforcement power of the Civil Service Commission. Unlawful practices, if based on sex, race, color, religion, or national origin include: For an employer to discriminate in hiring or firing, wages and salaries, promotions, or any terms, conditions, or privileges of employment; for a labor union to discriminate in membership, or to classify or refer in any way which tends to limit employment opportunities; or to cause or attempt to cause an employer to discriminate; for an employment agency to discriminate in classifying or referring for employ- Discrimination against an individual for filing a charge opposing an unlawful practice, or participating in an investigation is also prohibited. The provisions of the law are broad enough to encompass new and emerging forms of discrimination. occupational qualification reasonably necessary to the Exceptions are permitted when: sex is a bona fide normal operation of the business, as in the case of an actor or a wet nurse. Religious institutions may employ persons of a particular religion to further their activities. Differentials in compensation may be based on a seniority, merit, or incentive system. Because sex discrimination sometimes takes forms different from race discrimination, the EEOC has sex discrimination guidelines. They state that the bona fide occupational qualification should be interpreted very narrowly and bar hiring based on classification or labeling of men's jobs and women's jobs or advertising under male and female headings. Preferences of customers or existing employees should not be the basis for refusing to hire an individual. The EEOC guidelines say that State laws that prohibit or limit employment of women (in certain occu pations, in jobs requiring the lifting or carrying of specified weights, for more than a specified number of hours, during certain hours of the night, and immediately before and after childbirth) discriminate on the basis of sex, because they do not take into account individual capacities and preferences. Thus, they are superseded by title VII. A series of court cases has upheld this guideline and the conflict between State and Federal laws on this point was for the most part resolved in the early 1970's. In States with laws that require minimum and premium overtime pay only for women, on the other hand, employers covered by title VII are considered to be acting illegally if they refuse to hire women in order to avoid payment of minimum wages or overtime benefits or if they do not provide the same benefits for men. Similar provisions apply to other State employment laws such as those requiring special rest and meal periods or physical facilities for women; if an employer can prove that business necessity precludes providing the benefits to both men and women, the employer must not provide them to members of either sex. Since enactment of title VII, many State legisla tures have acted to extend the benefits of women's laws to employees generally. The guidelines prohibit denying employment because of pregnancy. They state that disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery there from are, for all jobrelated purposes, temporary and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. Policies on accrual of seniority, reinstatement, and payment under insurance or leave plans are to be applied to disability caused by pregnancy or childbirth as to other temporary disabilities. This guideline has been challenged in the courts and final resolution awaits action by the U.S. Supreme Court. The EEOC attempts to resolve complaints by conference, conciliation, and persuasion but it may file suit. The Commission may assist persons who take private legal action. If prompt judicial action is determined necessary, the EEOC or the Attorney General may seek a court order for relief pending final disposition of the charge. Special provisions in title VII encourage States to enact and enforce equal employment opportunity laws, and the EEOC can provide technical and financial assistance to the States for this purpose. Forty States, the District of Columbia, and Puerto Rico have fair employment practices laws that include a prohibition of sex discrimination. When the EEOC receives a complaint from an individual in a State or local jurisdiction with an effective law, the agency administering that law must be given an opportunity to resolve the complaint before the EEOC can act. Equal Employment Opportunity for Employees of The U.S. Government requires nondiscrimination as a condition of Federal contracts. This policy was put into effect through a Presidential Executive order, which has the force of law and is grounded in the inherent power of the President to carry out the constitutional duties of the executive branch of the Government. Executive Order 11246, as amended by Executive Order 11375, effective October 14, 1968, prohibits employment discrimination based on sex, race, color, religion, or national origin, by Federal contractors of subcontractors or contractors who perform work under federally assisted construction contracts. The Secretary of Labor has general enforcement responsibilities, including the power to promulgate general rules and regulations. Primary responsibility for obtaining compliance with the rules rests with the major Federal agencies that award contracts. Within the Department of Labor, an Office of Federal Contract Compliance Programs (OFCCP) has been established to administer the order. Sex discrimination guidelines issued by the OFCCP are similar in many respects to those of the EEOC. Guidelines concerning maternity benefits and pensions now under discussion would bring these standards into greater conformity with the order. Failure of a contractor to comply with the nondiscrimination pledges of the contract, or with the rules and regulations of the Secretary of Labor, may result in the cancellation, termination, or suspension of all or part of the contract. The contractor may be declared ineligible for further Government contracts. Every contract exceeding $10,000 requires the contractor to take "affirmative action" to assure all applicants and employees equal opportunity. Most Federal contractors are also required (under Revised Order No. 4, issued in December 1971) to adopt a written affirmaative action program. It is a set of specific and resultoriented oriented procedures which contractors commit themselves to carry out by every good faith effort. Under such plans, contractors are required to analyze all segments of their work force to see where minorities or women are underutilized, considering their availability for such work. Employers are to eliminate policies that cause this underutilization and to establish numerical goals and timetables for expanding job opportunities for groups previously denied such opportunities. The Growth of Affirmative Action The affirmative action obligation of Federal contractors is part of a broader movement toward reexamination of total employment systems. Experience in enforcement of equal employment opportunity laws has shown that discrimination cannot be overcome by giving attention only to individual complaints. In recent years courts have recognized that by nature discrimination is not directed toward a single individual but is more often a network of deeply imbedded practices that place barriers to the full employment of certain groups. Affirmative action has come to be associated with comprehensive plans to identify and remove those barriers. The examination of a whole employment system was a relatively new idea in the 1960's, but by December 1971 the Office of Federal Contract Compliance had sufficient experience with monitoring affirmative action programs for minorities to set forth specific requirements regarding both minorities and women in Revised Order No. 4. EEOC sometimes requires affirmative action also, but on a somewhat different basis. Unlike the Executive order which makes affirmative action a contractual obligation, title VII does not require such positive programs until after a finding of a pattern of discrim ination. Then the Equal Employment Opportunity Commission may set forth specific goals in a conciliation agreement, or Federal courts may order even more rigorous plans to remedy grievances and to offset the continuing effects of past discriminatory practices. The EEOC highly recommends voluntary affirmative action as the most desirable method of assuring fair employment practices and avoiding costly litigation. A few State and city governments have begun requiring affirmative action of contractors doing business with them. Age Discrimination in Employment The Age Discrimination in Employment Act of 1967 prohibits employers, employment agencies, and labor unions from discriminating in employment against persons 40 to 65 years old. It is of particular importance to women who reenter the work force after extended periods of full-time family responsibility. It is administered by the Wage and Hour Division of the U.S. Department of Labor. In 1974 the law was extended to civil service employees of State and local governments and interstate agencies. (Employment practices made illegal by the act are listed in appendix A, part 2.) Thirty-three States, the District of Columbia, and Puerto Rico prohibit age discrimination in employment. Most of these laws are enforced by human rights commissions. For Federal employees, the Civil Service Commission has general responsibility for enforcement of the 1974 amendments prohibiting age discrimination. Earlier, only a general statement of public policy existed, reaffirming the principles of the merit system in Federal Government and emphasizing the need to prevent discrimination against older people in Federal Government employment or advancement. Equal Employment Opportunity in the Federal Civil Service An Executive order, E.O. 11478, issued by the President on August 8, 1969, deals with discrimination in the Federal civil service. Although the Civil Service Act of 1883 permitted women to compete under the merit system, and the Classification Act of 1923 established uniform salary ranges, it was not until 1962 that the U.S. Attorney General ruled invalid an 1870 law that had been interpreted as giving Federal agencies the option to specify men or women in filling higher civil service positions. By 1967 an Executive order added sex to the civil service nondiscrimination policy and the Federal Women's Program was initiated under leadership of the Civil Service Commission. E.O. 11478 strengthened the equal employment opportunity program for Federal employees and directed the head of each executive department and agency to establish an affirmative action program for equal employment opportunity for all civilian employees and applicants for employment. The provisions of the Executive order were given legislative support by Congress when title VII of the Civil Rights Act was amended in 1972 to strengthen the powers of the Civil Service Commission to prohibit discrimination. The Commission is authorized to provide appropriate remedies such as reinstatement or hiring, with or without back pay. For the first time, an employee or applicant for Federal employment who is aggrieved by the final disposition of a complaint or by failure to take final action on a complaint was given the right to file a court suit. Laws or Orders for Specific Situations In addition to the laws and orders applying to a wide variety of industries, a number of recent Federal laws, orders, or regulations have prohibited employment discrimination in special occupations or industries. For example, title IX of the education amendments of 1972 specifically forbade sex discrimination in education. Other laws and regulations prohibited sex discrimination in programs for intergovernment exchange of personnel, in federally funded State extension services, and in some formerly closed occupations in the armed services. Some inequities in provision of benefits for spouses were removed. Virtually every Federal agency added some form of equal employment opportunity regulation in programs it administered. Coordination of Enforcement With most of the loopholes of earlier laws closed, a major need has developed in recent years for strong and well-coordinated enforcement. Amendment of title VII established an Equal Employment Oppor tunity Coordinating Council to develop agreements |