General functions include management of selected demonstration pro-grams; planning for agency environmental quality monitoring programs, coordination of agency monitoring efforts with th
Trang 1Generators and transporters are subject to
record-keeping, reporting, and labeling
require-ments, with transporters also being subject
to the strictures of the Hazardous Materials
Transportation Act Sites for underground
storage tanks containing petroleum products,
pesticides, and other hazardous products are
governed by RCRA provisions that enable the
detection, correction, and prevention of leaks
Disposal sites are regulated by a permit system
in which the EPA is given broad powers to
inspect a site, issue compliance orders, institute
civil actions against violators, and seek
injunc-tive relief Criminal penalties may also be
imposed for violation of the permit system
In 1984 Congress amended the RCRA,
shifting the focus of hazardous waste
manage-ment from safe land disposal to treatmanage-ment
alternatives Under the 1984 amendments, land
disposal is now the last alternative, and is
permitted only when the waste is pretreated to
meet standards issued by the EPA, or when the
EPA determines “to a reasonable degree of
certainty that there will be no migration of
hazardous constituents from the disposal unit…
for as long as the wastes remain hazardous.”
When land disposal is deemed permissible,
new landfills must use double liners and
groundwater monitoring systems, unless the
EPA finds that an alternative design or
operat-ing practice would be equally effective in
preventing the migration of hazardous waste
In addition to providing for EPA regulation and
enforcement actions, the RCRA authorizes
private citizens to institute LEGAL PROCEEDINGS
against violators of its provisions
Comprehensive Environmental Response,
Compensation, and Liability Act The
Compre-hensive Environmental Response,
Compensa-tion, and Liability Act (CERCLA), also known
as the Superfund, was passed in 1980 to clean
up hazardous waste disposal sites (42 U.S.C.A
§§ 9601 et seq.) The act consists of four
elements First, CERCLA establishes a system
for gathering information to enable federal and
state governments to characterize chemical
dump sites and develop priorities for response
actions The administrator of the EPA is
required to issue regulations designating which
chemicals would be hazardous to the public if
released into the environment The owners and
operators of hazardous waste storage,
treat-ment, and disposal sites are required to notify
the EPA of the amount and types of hazardous substances on-site, and of any known, sus-pected, or likely releases into the environment
Based on this information, the EPA develops a national priorities list (NPL), which ranks the nation’s hazardous waste sites in order of importance
Second, CERCLA establishes federal author-ity to respond when hazardous waste has been discharged into the environment The president
is authorized to provide removal and remedial actions consistent with a national contingency plan (NCP), which establishes procedures for cleaning up such discharges Removal actions are short-term responses to emergencies, whereas remedial actions are intended to offer long-term solutions The federal government’s response actions at sites appearing on the NPL are limited to cases in which the responsible parties cannot be found or fail to take the necessary actions
Third, CERCLA creates a class of persons who are potentially responsible parties (PRPs), who will be held liable for cleanup and restitution costs The act provides that all generators and transporters of hazardous materials, and every owner and operator of a disposal or treatment facility, shall be liable for all removal and remedial costs incurred by the state and federal government not inconsistent with the NCP, as well as any other necessary response costs such as consulting fees or attorney fees in certain situations In each case, CERCLA imposes strict liability upon the responsible party, independent
of traditional notions of culpability such as intent and recklessness
Fourth, the act creates the multi-billion-dollar Hazardous Substance Trust Fund to pay for removal and remedial actions Money for the fund is raised through federal appropriation and through taxes paid by some disposal site owners and operators The fund cannot be used
to remedy environmental injuries from hazard-ous waste that “occurred wholly before the enactment of this Act.” Private claims may be made against the fund only if the PRPs cannot
be found or are insolvent
The stickiest legal questions arise when courts assign liability for cleanup For example, lending institutions regularly foreclose, take title, and resell property without any knowledge
or indication that the property was previously used as a hazardous waste site Such institutions
ENVIRONMENTAL LAW 199
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Early CERCLA cases imposed liability upon lending institutions in these circumstances, even when the costs of cleanup exceeded the value of the property (see United States v Maryland Bank &
Trust Co., 632 F Supp 573 [D Md 1986])
Although Congress later amended CERCLA to protect such“innocent landowners,” courts still impose liability if the lending institution “had reason to know” of the hazardous waste disposal
or failed to make“all appropriate inquiry” into the previous ownership before acquiring the property
Liability under CERCLA is JOINT AND SEVERAL LIABILITY, which means that once it is established among a group of defendants, any one of the defendants can be held responsible for the entire cost of cleanup Although defendants are permitted to offer evidence that they are responsi-ble for only part of an environmental injury, the commingling of chemicals at dump sites makes such a defense difficult to prove Defendants may also seek reimbursement from codefendants who were primarily responsible for a hazardous discharge, but this relief proves futile when a responsible codefendant has disappeared or filed
BANKRUPTCY Thus, wealthy landowners are often left paying the costs of the CERCLA cleanup
Preservation of Wilderness and Wildlife NEPA requires the government to “fulfill the res-ponsibilities of each generation as trustee for succeeding generations” to ensure “safe, healthful, productive and aesthetically pleasing surroundings” and protect “important aspects” of the“national heritage.”
The federal government has three land preservation categories: the National Park System, the National Wilderness Preservation System, and the National Wildlife Refuge
National parks include forested areas, recrea-tional areas, and places of historical importance
Wilderness preserves are not intended for use, and are primarily found in Alaska and the Florida Keys A wildlife refuge is a sanctuary for fish and game Federal legislation protects each
of these three areas from spoliation, degrada-tion, and misuse
In addition to establishing sanctuaries and refuges for wilderness and wildlife, Congress has passed the ENDANGERED SPECIES ACT, 16 U.S.C.A
§§ 1531 et seq., which charges the DEPARTMENT
OF THE INTERIOR with the protection of animals
teetering on the brink of extinction The U.S Supreme Court has interpreted this act very broadly, as reflected by the snail darter case (TENNESSEE VALLEY AUTHORITYv Hill, 437 U.S 153,
98 S Ct 2279, 57 L Ed 2d 117[1978]) The snail darter, a plain-looking, three-inch-long fish, was an endangered species inhabiting the rivers of Tennessee when the Tennessee Valley Authority began the construc-tion of a $100 million dam that would have destroyed its habitat After noting that Congress deemed all species to have incalculable value and finding that the Endangered Species Act
“admit[ted] of no exception[s],” the Supreme Court held that the dam could not be completed FURTHER READINGS
Gerrard, Michael B., ed 2009 The Law of Environmental Justice: Theories and Procedures to Address Dispropor-tionate Risks 2d ed Chicago: American Bar Association Rodgers, William H., Jr 1994 Hornbook on Environmental Law Eagan, MN: West.
Stern, Carole, John A McKinney Jr., and David B Graham, eds 2000 CERCLA Enforcement: A Practitioner’s Compendium of Essential EPA Guidance and Policy Documents Chicago: American Bar Association CROSS REFERENCE
Tobacco; Water Rights.
ENVIRONMENTAL PROTECTION AGENCY
The purpose of the ENVIRONMENTAL PROTECTION AGENCY (EPA) is to protect and enhance the environment in the present and for future generations to the fullest extent possible under the laws enacted by Congress The mission of the agency is to control and abate pollution in the areas of air, water, solid waste, noise, radiation, and toxic substances The mandate of the EPA is
to mount an integrated, coordinated attack on environmental pollution in cooperation with state and local governments
Air, Noise, and Radiation Programs
The air quality activities of the agency include development of national programs, technical policies, and regulations for air pollution control; development of national standards for air quality; emission standards for new stationary sources and emission standards for hazardous pollutants; technical direction, support, and evaluation of regional air quality activities; and provision of training in the field of air pollution control Related activities include study, identification,
200 ENVIRONMENTAL PROTECTION AGENCY
Trang 3and regulation of noise sources and control
methods; technical assistance to states and
agencies having radiation protection programs;
and a national surveillance and inspection
program for measuring radiation levels in the
environment
Water and Waste Management Programs
The water quality activities of the EPA represent
a coordinated effort to restore the waters of the
nation The functions of this program include
development of national programs, technical
policies, and regulations for water pollution
control and water supply; water quality standards
and effluent guidelines development; technical
direction, support, and evaluation of regional
water activities; development of programs for
technical assistance and technology transfer; and
provision of training in the field of water quality
Solid Waste Emergency Response
Programs
The Office of Solid Waste and Emergency
Response provides policy, guidance, and
direc-tion for the agency’s solid waste and emergency
response programs The functions of these
programs include development of program
policy; development of hazardous waste
stan-dards and regulations; enforcement of applicable
laws and regulations; guidelines and standards
for land disposal of hazardous wastes; analyses
on the recovery of useful energy from solid
waste; and provision of technical assistance in the
development, management, and operation of
waste management activities
Legal and Enforcement Counsel
The Office of the Assistant Administrator for
Enforcement has the following functions: (1)
provides policy direction to enforcement
activi-ties in air, water, toxic substances, hazardous and
solid waste management, radiation, and noise
control programs; (2) plans and coordinates
enforcement conferences, public hearings, and
otherLEGAL PROCEEDINGS; and (3) engages in other
activities related to enforcement of standards to
protect the environment of the nation
Pesticides and Toxic Substances
Programs
The Office of Assistant Administrator for Toxic
Substances is responsible for development of
national strategies for the control of toxic
substances; criteria for assessing chemical
sub-stances, standards for test protocols for
chemicals, rules and procedures for industry reporting, and regulations for the control of substances deemed to be hazardous to man or the environment; and evaluation and assessment of the impact of new chemicals and chemicals with new uses to determine the hazard and, if needed, develop appropriate restrictions It also coordi-nates with the activities of other agencies under the Toxic Substances Control Act (15 U.S.C
2601 et seq [1976]) for the assessment and control of toxic substances Additional activities include control and regulation of pesticides and reduction in their use to ensure human safety and protection of environmental quality; establish-ment of tolerance levels for pesticides that occur
in or on food; monitoring of pesticide residue levels in food, humans, and nontarget fish and wildlife and their environments; and investiga-tion of pesticide accidents
Research and Development
The Office of the Assistant Administrator for Research and Development is responsible for a national research program in pursuit of tech-nological controls of all forms of pollution It directly supervises the research activities of the national laboratories of the EPA and gives technical policy direction to those laboratories that support the program responsibilities of the regional offices of the EPA Close coordination
of the various research programs is designed to yield a synthesis of knowledge from the biological, physical, and social sciences that can be interpreted in terms of total human and environmental needs General functions include management of selected demonstration pro-grams; planning for agency environmental quality monitoring programs, coordination of agency monitoring efforts with those of other federal agencies, the states, and other public bodies; and dissemination of agency research, development, and demonstration results
Major Developments
During the late 1990s, the EPA under the administration of President WILLIAM JEFFERSON CLINTONpursued diverse goals with mixed results
One of its most noted efforts involved ambitious enforcement of the CLEAN AIR ACT through the New Source Review (NSR) program, which saw the EPA requiring industries to install new anti-pollution equipment The administration also sued about fifty power companies for violations
But frequently the agency’s plans met with resistance and litigation from industry Plaintiffs
ENVIRONMENTAL PROTECTION AGENCY 201
Trang 4successfully challenged EPA regulatory authority over such matters as setting drinking water targets for chloroform, requiring ethanol mini-mums in reformulated gasoline, and mandating certain regional electric car sales
The Environmental Protection Agency was established in the executive branch as an independent agency pursuant to Reorganization Plan No 3 of 1970, effective December 2, 1970
The EPA was created to permit coordinated and effective governmental action on behalf of the environment The EPA endeavors to abate and control pollution systematically, by proper inte-gration of a variety of research, monitoring, standard setting, and enforcement activities As a complement to its other activities, the EPA coordinates and supports research and antipollu-tion activities by state and local governments, private and public groups, individuals, and educational institutions The EPA also reinforces efforts among other federal agencies with respect
to the impact of their operations on the environ-ment, and it is specifically charged with publishing its determinations when those hold that a proposal
is unsatisfactory from the standpoint of public health or welfare or environmental quality In all, the EPA is designed to serve as the advocate of the public for a livable environment
Under President GEORGE W BUSH, the EPA shifted its approach on some issues The agency proposed to roll back its predecessor’s air pollution regulations But the agency backed down after public criticism over its apparent readiness to scuttle standards for arsenic levels
in drinking water, and in 2000 it also released data critical of the administration’s laissez-faire policy toward global warming Moreover, in
2001 the EPA continued to pursue the agency’s decades-old Superfund case against General Electric Co., seeking to have the company pay for a $360 million project to dredge contami-nated sediment from the Hudson River
The Environmental Protection Agency is available online at www.epa.gov (accessed July
18, 2003)
FURTHER READINGS Adler, Jonathan “Courting Trouble at the EPA.” The Washington Times (April 14, 2000).
“Bush Rollback of Rules Will Keep Maine Air Dirty.”
Portland Press Herald (November 26, 2002).
Fagin, Dan “Turbulent Waters: Battle Rages on Dredging the Hudson ” Newsday (February 24, 2001).
Paige, Sean “Smoldering Sabotage in the EPA Underbrush.”
The Washington Times (June 26, 2002) Available
online at http://nucnews.net/nucnews/2002nn/0206nn/ 020626nn.htm#620; website home page: http://nucnews net (accessed July 21, 2009).
CROSS REFERENCES Environmental Law; Regulation.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION The EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
(EEOC) is the federal agency charged with eliminating discrimination based on race, color,
RELIGION, sex, national origin, disability, or age,
in all terms and conditions of employment The EEOC investigates alleged discrimination through its 50 field offices, makes determina-tions based on gathered evidence, attempts conciliation when discrimination has taken place, and files lawsuits The EEOC also over-sees compliance and enforcement activities relating to equal employment opportunity among federal employees and applicants, in-cluding discrimination against individuals with disabilities
Complaints under Title VII of the Civil Rights Act of 1964
Title VII of the CIVIL RIGHTS Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin, by private employers, state and local governments, educational institutions with 15 or more employees, the federal government, private and public employment agencies, labor organi-zations, and joint labor-management commit-tees for apprenticeship and training Charges of title VII violations outside the federal sector must be filed with the EEOC within 180 days
of the alleged violation or in states with fair employment practices agencies, within
300 days The EEOC is responsible for notifying the persons charged, within 10 days after receiving a charge Before investigation, charges must be deferred for 60 days to state or local fair employment practices agencies in localities with
a fair employment practices law covering the alleged discrimination If the agency has been operating less than one year, the charges must
be deferred for 120 days
The EEOC was created by title VII of the Civil Rights Act of 1964, 42 U.S.C.A § 2000e-4 Title VII was amended by the Equal Employment Opportunity Act of 1972, Pub L No 92-261, Mar 24, 1972, 86 Stat 103; the Pregnancy
202 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Trang 5Discrimination Act of 1978, Pub L No 95-555,
Oct 31, 1978, 92 Stat 2076, codified at 42 U.S.C
A § 2000e(K); and the Civil Rights Act of 1991,
Pub L No 102-166, 105 Stat 1071 On July 1,
1979, responsibility for enforcement of theEQUAL
PAY ACT OF1963, 29 U.S.C.A §§ 201 et seq., and
the AGE DISCRIMINATION in Employment Act of
1967, 29 U.S.C.A §§ 626 et seq., in private
industry as well as state and local governments,
was transferred from the DEPARTMENT OF LABOR
to the EEOC The Equal Pay Act prohibits
gender-based pay differences for substantially
equal work requiring equal skill and
responsibili-ty; the Age Discrimination Act prohibits
em-ployment discrimination against workers or
applicants 40 years of age or older Title I of the
Americans with Disabilities Act of 1990 (ADA),
42 U.S.C.A §§ 12101 et seq has been enforced by
the EEOC since July 1992 Title I governs private
employers, state and local governments,
employ-ment agencies, labor organizations, and joint
labor-management committees The ADA
pro-hibits employment discrimination against
quali-fied individuals with disabilities and requires that
employers make reasonable accommodations for
these individuals
Under work-sharing agreements between
the EEOC and state and local fair employment
practices agencies, the EEOC routinely assumes
authority over certain charges of discrimination
and proceeds with its investigation If
reason-able cause exists to believe that a charge is true,
the district, area, or local office uses informal
conciliation conferences to try to remedy the
unlawful practices If an acceptable agreement
cannot be reached, the case is submitted to the
EEOC for possible litigation If litigation is
approved, the EEOC brings suit in federal
district court
Under title VII, the attorney general brings
suit when a state or local government or
political subdivision is involved If litigation is
not approved or if a finding of no reasonable
cause is made, the charging party is allowed to
sue within 90 days in federal district court The
EEOC may intervene in such actions if the case
is of general public interest
Complaints under the Americans with
Disabilities Act of 1990
The Americans with Disabilities Act of 1990
incorporates the remedies and procedures
contained in title VII of the Civil Rights Act
of 1964 Employment discrimination charges
based on disability may be filed at any of the EEOC’s field offices The EEOC investigates and attempts to conciliate the charges using the same procedures as for charges filed under title VII The litigation procedures under title VII also apply to charges filed under the ADA
The progress in creating a genetic“map” for humans in the 1990s was hailed by scientists who hoped a better understanding of genetic makeup might someday help prevent debilitating diseases including cancer and Alzheimer’s disease Along with that promise came the fear that employers might use a person’s genetic information to deny employment In February 2000 President BILL CLINTON signed EXECUTIVE ORDER 13145, which prohibits federal departments and agencies from using protected genetic information to make hiring decisions
Complaints under the Age Discrimination in Employment Act of
1967 and Equal Pay Act of 1963
The Age Discrimination in Employment Act of
1967 and Equal Pay Act of 1963 cover most employees and job applicants in private industry and in the federal, state, and local governments
An age discrimination charge must be filed with the EEOC within 180 days of the alleged violation, or where the action took place in a state that has an age discrimination law and
an authority administering that law, within
300 days of the violation or 30 days after receiving the notice of termination of state proceedings, whichever is earlier A lawsuit must be filed within two years of the alleged discriminatory act or within three years in cases
of a willful violation of the law
Under the Civil Rights Act of 1991, a lawsuit must be filed within 90 days of the plaintiff’s receipt of a notice of final action The EEOC first attempts to end the alleged unlawful practice through informal conciliation If con-ciliation fails, the EEOC may sue Individuals may sue on their own behalf 90 days after filing
a charge with the EEOC and the appropriate state agency If the EEOC takes legal action, an individual covered by the lawsuit may not file a private action
A lawsuit under the Equal Pay Act of 1963 may be filed by the EEOC or by the complain-ant There are no prerequisites for bringing a private action under this law Wages may be recovered for a period of up to two years prior
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 203
Trang 6to the filing of a suit, except in a case of willful violation, for which three years’ back pay may
be recovered The name of the individual filing the complaint may be kept confidential at the administrative level
Complaints against the Federal Government
Federal employees or job applicants who want
to file complaints of job discrimination based
on race, color, national origin, sex, religion, age,
or physical or mental disability must first consult
an equal employment opportunity counselor with the employees’ or applicants’ agency within
45 days of the alleged discriminatory action If the complaint cannot be resolved informally, the person may file a formal complaint within 15 days of receiving a notice of the right to file a complaint An accepted complaint is investigated
by the agency, and the complainant has a right to
a hearing before an EEOC administrative judge before the agency issues its final decision An individual who wishes to file a complaint under the Equal Pay Act of 1963 must follow these procedures An individual may also elect to file suit under the Equal Pay Act of 1963 without prior resort to the agency or to the EEOC
A complaint under the Age Discrimination
in Employment Act of 1967, against a federal agency or department, must be filed with the head of the agency, director of equal employ-ment opportunity, head of an EEOC field installation, or other designated official Federal employees may bypass the administrative com-plaint process and file aCIVIL ACTIONdirectly in a federal district court, by first notifying the EEOC within 180 days of the alleged discriminatory act and then waiting 30 calendar days before filing suit A federal employee may appeal a decision of
an agency, an arbitrator, or the Federal Labor Relations Authority, with the EEOC’s Office of Federal Operations, at any time up to 30 calendar days after receiving the agency notice
of final decision A petition for review of aMERIT SYSTEMS PROTECTION BOARD decision may be filed within 30 days of the date that the board decision becomes final A request for reconsid-eration of any EEOC decision must be made in writing within 30 days of receiving the decision
Other Activities
The EEOC publishes data on the employment status of women and members of minority groups Through six employment surveys
covering private employers, apprenticeship pro-grams, labor unions, state and local govern-ments, elementary and secondary schools, and colleges and universities, the EEOC tabulates data on employees’ ethnic, racial, and gender makeup The EEOC distributes this information
to various federal agencies and makes it available for public use
Eliminating a large backlog of discrimina-tion charges has been a continuing problem for the EEOC, but efforts to streamline have been effective; by fiscal year 2001 the inventory of charges had been reduced to 32,481, in contrast
to a record 120,000 charges in mid-1995
In 1999 the EEOC launched a National Mediation Program as an alternative to the traditional complaint process Professionals trained in mediation work with employers and employees to determine whether a mutually agreeable RESOLUTION can be reached By 2003 the EEOC had resolved 29,000 charges through mediation In March 2003 the EEOC added a mediation pilot program, a “referral back” program that allows the agency to give charges back to a company’s internal dispute resolution program in the hopes of mediating its own agreement
Web site: http:/www.eeoc.gov
FURTHER READINGS Fick, Barbara J 1997 The American Bar Association Guide to Workplace Law: Everything Every Employer and Em-ployee Needs to Know about the Law & Hiring, Firing, Discrimination…Maternity Leave, & Other Workplace Issues 2d ed New York: Random House Reference Player, Mack A 2004 Federal Law of Employment Discrimination in a Nutshell 5th ed Eagan, MN: West.
——— 1988 Player’s Hornbook on Employment Discrimi-nation Law Eagan, MN: West.
U.S Government Manual Website Available online at http:// www.gpoaccess.gov/gmanual/index; website home page: http://www.gpoaccess.gov (accessed July 21, 2009).
Williams, Douglas L 1995 “Handling the EEOC Investiga-tion ” American Law Institute-American Bar Association: Employment & Labor Law.
CROSS REFERENCES Affirmative Action; Civil Rights; Disability Discrimination; Employment Law; Sex Discrimination.
EQUAL PAY ACT OF 1963
In an effort to end gender-based discrimination
in labor wages, Congress enacted theEQUAL PAY ACT OF 1963, Pub L No 88-38, 77 Stat 56 (codified at 29 U.S.C.A § 206(b)) The act
204 EQUAL PAY ACT OF 1963
Trang 7established the requirement that women should
receive “equal pay for equal work.” However,
the average wages given to women are still lower
than those of men, and some critics have
deemed the Equal Pay Act as a failure
In the years that followedWORLD WAR II, men
reemerged as dominant figures in the workforce
and attempts in Congress to enact an equal pay
law stalled During the early 1960s, however,
Congress reconsidered the issue When the
phrase “equal work” was employed instead of
“comparable work,” the legislation garnered
sufficient support to be enacted into law The
act amended the Fair Labor Standard Act of
1938, 29 U.S.C.A §§ 201-209 (2000)
Congress had attempted on a number of
occasions prior to 1963 to enact similar
legisla-tion The idea for the statute arose during World
War II, when many women entered the
work-force while men were overseas The War Labor
Board established a policy of “equal pay for
women.” According to its policy, women were to
receive equal pay for work that was of
“com-parable quality and quantity” to the
responsibili-ties of men When members of Congress
introduced legislation called the Women’s Equal
Pay Act of 1945, it contained the phrase
“comparable work.” This provision was the
subject of a heated debate, and the bill failed
to pass
Congress stated that its intent in enacting
the Equal Pay Act was to establish a “broad
charter of women’s rights,” designed to remedy
a “serious and endemic” problem of SEX
DISCRIMINATION in the workplace Under the
act, employers are prohibited from
discriminat-ing against women on the basis of sex when
women perform jobs requiring “equal skill,
effort, and responsibility, and which are
per-formed under similar working conditions” as
jobs performed by men In order to recover
under the act, a woman must prove that (1) an
employer paid higher wages to men than to
women; (2) male and female employees
con-duct an equal amount of work that requires
substantially equal skill, effort, and responsibility;
and (3) men and women performed the work
under similar working conditions
The act establishes four main defenses for
employers An employer may pay a male
employee more than a female employee if
the employer can establish that payment is
based upon (1) a seniority system, (2) a merit
system, (3) a system whereby earnings are based upon the quantity and quality of production by the employees, or (4) a differential based upon any other factor other than the sex of the employees Although the first three of these defenses have been the subjects of litigation, the fourth exception has been litigated more frequently
Lower federal courts have struggled with the so-called factor-other-than-sex defense, and the U.S Supreme Court has rendered few decisions
on the issue In Corning Glass Works Co v
Brennan 417 U.S 188, 94 S Ct 2223, 41 L Ed 2d
1 (1974), the Court ruled that an employer’s policy of paying men who worked during a night shift more than women who worked the same jobs during the day shift violated the act The Court found that the policy was related to gender because the employer knew that women would work for less money Three years later, in City of Los Angeles Department of Water & Power v
Manhart, 435 U.S 702, 98 S Ct 7370, 55 L Ed
2d 657 (1977), the Court ruled that a policy requiring women to contribute more to their pension funds than men violated the act The employer in the case based its policy onMORTALITY TABLES indicating that women had a longer life span than men, so the women were required to pay higher rates for their pension funds Since this policy was based on gender, the Court ruled that the employer had violated the act
Lower federal courts have established a number of tests to determine whether an employer has adopted a wage policy based on
a factor other than sex Some circuits require an employer to demonstrate a gender-neutral wage policy that accounts for disparity in wages between men and women Other circuits require an employer to show that the gender-neutral system of wages is based upon the performance of a woman’s job duties or that a gender-neutral system was adopted to serve a legitimate business reason
The application of the act is limited for other reasons as well Several courts have noted that the Equal Pay Act does not establish a system of “comparable worth,” because the act specifically applies to “equal work.” EEOC v
Madison Community Unit School District No 12,
818 F.2d 577 (7th Cir 1987) Accordingly, courts must generally compare the wages of men and women performing the same jobs for the same company when considering a com-plaint brought under the act
EQUAL PAY ACT OF 1963 205
Trang 8The limitations of the Equal Pay Act has led
a number of commentators to criticize its provision and the application of the act in the courts Many critics note that the wages of women are still significantly lower than those of men, even though employers have become more willing to hire women In 1997, President
BILL CLINTON declared April 11, 1997 to be the
“National Pay Inequity Awareness Day,” which signified to these critics that serious problems in pay inequities still existed
FURTHER READINGS Friedman, Jack A 1994 “Real Gender-Neutrality for the Factor-Other-Than-Sex Defense ” New York Law School Journal of Human Rights 241.
Houghton, Kimberly J 1999 “The Equal Pay Act of 1963:
Where Did We Go Wrong? ” The Labor Lawyer 15,
no 1 Available online at http://www.bnabooks.com/
ababna/laborlawyer/15.1.pdf; website home page:
http://www.bnabooks.com (accessed July 21, 2009).
Szul, Gregory 1994 –1995 “Sports Law: Sex Discrimination and the Equal Pay Act in Athletic Coaching ” DePaul-LCA Journal of Art and Entertainment Law 161.
CROSS REFERENCES Civil Rights Acts; Equal Protection; Equal Rights Amend-ment; Women ’s Rights.
EQUAL PROTECTION Equal protection refers to the constitutional guarantee that no person or class of persons shall
be denied the same protection of the laws that is enjoyed by other persons or other classes in like circumstances, in their lives, liberty, property, and pursuit of happiness
The Declaration of Independence states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness
The concept of equal protection and equality in the United States is as old as the nation itself In 1776,THOMAS JEFFERSONand the American colonists boldly announced the “self-evident” truth of human equality Yet the meaning of equality was neither obvious nor clearly defined The “peculiar institution”
of SLAVERY was intricately woven into U.S
economic, social, and political fabric Many Americans owned slaves, and most, including Jefferson himself, believed in the inferiority of the black race JAMES MADISON and the other Founding Fathers drafted a national constitu-tion that protected the slave trade and
recognized the rights of slave owners Article I, Section 2, of the Constitution counted a slave as only three-fifths of a person for the purposes of representation in Congress
Slave codes permitted slave masters to buy, sell, and lease blacks like personal property Slaves owed to their masters an unqualified duty
of obedience Slave owners, by contrast, were free to do as they pleased, short of murdering their slaves Only community mores, common sense, and individual conscience restrained slave owners Very few laws protected slaves from abusive or maniacal masters, and those that did were seldom enforced In 1857 the U.S Supreme Court placed its stamp of approval on the institution of slavery, holding that slaves were not“citizens” within the meaning of the Constitu-tion, but only “property” lacking any constitu-tional protection whatsoever (Dred Scott v Sandford 60 U.S., 15 L Ed 691 [19 How.] 393) From the inception of the United States, then, a gulf has separated the Jeffersonian ideal of human equality from the reality of racial inequality under the law The tension separating the aspirations of the DECLARATION OF INDEPEN-DENCE from the barbarism of slavery ultimately erupted in theU.S.CIVIL WAR The victory won by the North in the War Between the States ended the institution of slavery in the United States and commenced the struggle forCIVIL RIGHTSthat was
to continue into the twenty-first century This struggle began with the ratification of the Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) Amendments during the RECON-STRUCTIONperiod following the Civil War TheTHIRTEENTH AMENDMENTabolished slavery and INVOLUNTARY SERVITUDE, except when im-posed as punishment for a crime TheFIFTEENTH AMENDMENT did not expressly grant black citizens the right to vote, but it prohibited state and federal governments from denying this right based on “race, color, or previous condi-tion of servitude.” Each amendment gave Congress the power to enforce its provisions with“appropriate legislation.”
Although both of these amendments were important, theFOURTEENTH AMENDMENT has had the greatest influence on the development of civil rights in the United States Section 1 of the Fourteenth Amendment provides that
All persons born or naturalized in the United States, and subject to the jurisdiction thereof,
206 EQUAL PROTECTION
Trang 9are citizens of the United States and of the
State wherein they reside No State shall
make or enforce any law which shall abridge
the privileges or immunities of citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without
DUE PROCESS OF LAW; nor deny to any person
within its jurisdiction the equal protection of
the laws
The first clause emasculated the Dred Scott
decision by bestowing national citizenship upon
all blacks born or naturalized in the United
States, making them eligible for federal
protec-tion of their civil rights The PRIVILEGES AND
IMMUNITIES clause, once believed a potential
source for civil rights, was narrowly interpreted
by the Supreme Court in 1873 and has since
remained dormant (Slaughter-House cases, 83
U.S., 21 L Ed 394[16 Wall.] 36)
The equal protection clause was also
narrowly interpreted by the Supreme Court in
the nineteenth century, but it still became the
centerpiece of the CIVIL RIGHTS MOVEMENT after
WORLD WAR II(1939–1945) It spawned
desegre-gation, integration, andAFFIRMATIVE ACTION, and
it promoted equal treatment and concern for
the races under state law It also provided the country with a starting point for a meaningful dialogue regarding the problems of inequality and discrimination This dialogue has manifested itself in U.S constitutional, statutory, and common law
Constitutional Law
Inequalities during Reconstruction The rati-fication of the Fourteenth Amendment oc-curred during a period in U.S history known
as Reconstruction In this era, the South was placed underMILITARY OCCUPATIONby the North, and African Americans realized some short-term benefits KU KLUX KLAN violence was temporarily curbed BLACK CODES, passed by southern states after the Civil War to replace slavery with a segregated system based on social caste, were dismantled Blacks were elected to state and federal office Some achieved promi-nent status in legal circles, including one African American who obtained a seat on the South Carolina Supreme Court
But Reconstruction was not a substitute for civil rights, and the improvements realized by
Equal Protection: Educational Attainment in 2007
SOURCE: U.S Census Bureau, Statistical Abstract of the United States: 2009.
100
90
80
70
60
50
40
30
20
10
0
100 90 80 70 60 50 40 30 20 10 0
Percentage of U.S population a with a college degree Percentage of U.S population a with a high school diploma
Totalb White Black Hispanic Asian Totalb White Black Hispanic Asian
85.7 86.2
82.3
60.3 87.8
28.7 29.1
18.5 12.7 52.1
a
Population refers to persons 25 years old and over.
b
Includes other races not shown separately.
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PER-MISSION OF GALE, A PART OF CENGAGE LEARNING.
EQUAL PROTECTION 207
Trang 10African Americans proved evanescent By 1880 the North’s passion for equality had atrophied, as had its interest in the fate of African Americans
In the vacuum left by federal withdrawal, southern racism flourished and Klan TERRORISM
burgeoned Labor codes were passed relegating blacks to virtual serfdom These codes made it illegal for anyone to lure blacks away from their job for any reason, including better working conditions and wages Some codes provided criminal penalties for African Americans who quit their job, even when no debt was owed to their employer
Advancements made during Reconstruction were further eroded when the Supreme Court invalidated the Civil Rights Act of 1875 (Civil Rights cases, 109 U.S 3, 3 S Ct 18, 27 L
Ed 835 [1883]) This act proclaimed “the equality of all men before the law” and promised to“mete out equal and exact justice”
to persons of every“race, color, or persuasion”
in public or private accommodations alike In striking down the law, the Supreme Court said that when
a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be a special favorite of the law
The Court was not persuaded that this act was the type of “appropriate legislation” con-templated by the Fourteenth Amendment
The Rise and Fall of Separate but Equal The Supreme Court’s laissez-faire attitude toward racial inequality was also reflected in the area of
SEGREGATION As Reconstruction collapsed, southern states gradually passed statutes for-mally segregating the races in every facet of society Public schools, restaurants, restrooms, railroads, real property, prisons, and voting facilities were all segregated by race The Supreme Court placed its imprimatur on these forms of racial apartheid in the landmark decision Plessy v Ferguson (163 U.S 537, 16 S
Ct 1138, 41 L Ed 256[1896])
Homer Plessy, who was seven-eighths Caucasian and one-eighth African, was prohib-ited from traveling on a railway coach for whites, under a Louisiana statute requiring
“equal but separate accommodations” for black and white passengers The Supreme Court, in
an 8–1 decision, said this statute did not violate the equal protection clause of the Fourteenth Amendment: “The object of the Amendment was undoubtedly to enforce the absolute equality
of the two races before the law, but… it could not have been intended to abolish distinctions based upon color, or to enforce… a commin-gling of the two races upon terms unsatisfactory
to either.” The Fourteenth Amendment, the Court concluded, was “powerless to eradicate racial instincts or to abolish distinctions based on physical differences.”
Following Plessy, the “separate-but-equal” doctrine remained the lodestar of Fourteenth Amendment jurisprudence for over half a century Legally prescribed segregation was upheld by the Court in a litany of public places, including public schools AsADOLF HITLERrose to power in Germany during the 1930s, however, many U.S citizens began to reconsider their notions of equality Nazi policies of Aryan superiority, racial purity, ethnic cleansing, and extermination made many U.S citizens view segregation in a more negative light The juxtaposition of the Allied powers fighting totalitarianism in World War II and the citizenry practicing racial discrimination in the United States seemed hypocritical to many, especially when segregated African American troops were sacrificing their lives on the battlefield
A series of Supreme Court decisions began
to limit the scope of the separate-but-equal doctrine The first hint of the Court’s changing perspective came in the footnote to an other-wise forgettable case, United States v Carolene Products (304 U.S 144, 58 S Ct 778, 82 L Ed
1234 [1938]) In Carolene Products, the Court upheld a federal statute regulating commerce, applying a presumption of constitutionality to legislation in this area However, inFOOTNOTE4, the Court cautioned that this presumption may not apply to legislation“directed at national …
or racial minorities… [where] prejudice against discrete and insular minorities may be a special condition, which tends to seriously curtail the operation of those political processes ordinarily
to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial scrutiny.”
The Court employed a “more searching judicial scrutiny” in Missouri ex rel Gaines v Canada (305 U.S 337, 59 S Ct 232, 83 L Ed 208 [1938]) This case involved a black applicant who
208 EQUAL PROTECTION