The Sex Discrimination Act 1975 — File and Forget?
| DOI | https://doi.org/10.1108/eb055349 |
| Date | 01 January 1978 |
| Pages | 14-18 |
| Published date | 01 January 1978 |
| Author | Janet S. Goodman,Virginia Novarra |
| Subject Matter | HR & organizational behaviour |
The Sex Discrimination Act
1975
—
File and Forget?
Janet S. Goodman
Lately SRC
Senior Visiting
Fellow,
Department
of
Electrical Engineering
Science,
University
of Essex
Virginia Novarra
Lately Churchill
Fellow,
on
the
implementation
of sex
discrimination
laws
One guy got $I5,000 knocked off his bonus because of
his poor performance in the EEO area. The word spread
faster than electricity. It was incredible the change that
took place in that company.
Todd Jagerson Consultant in Equal Employment Oppor-
tunity,
Wall
Street Journal quotation, 2 August 1974.
Finally, the Commission can summon their most terrible
weapon. They can call an investigation. And the punish-
ment? A notice telling you to stop it. It has all the
awesome threat of a slap on the wrist.
Daily Mirror article about UK Sex Discrimination Act,
2 February 1976.
Introduction
This article seeks to assess the likely impact on British
managers of the 1975 UK legislation prohibiting sex discrim-
ination, drawing on experience from the United States. It
will consider the development of the US law and the effect
this has had upon practice in the traditional personnel func-
tion. It will review portions of the British Statute and British
case law dealing with discrimination in employment. In an
attempt to assess the impact upon British practice it will
explore the relationship between the UK and the US legis-
lation and evaluate the strengths and weakness of each in its
context.
US Legislation
In the USA there has been legislation outlawing sex discrim-
ination for over a decade. The Civil Rights Act of 1964 was
primarily a measure to put right injustices to racial minor-
ities,
and was one of the fruits of the civil rights movement.
'Sex' was added to title VII of the Act (dealing with employ-
ment) in its passage through Congress. Title VII was supple-
mented by a series of presidential executive orders which
applied pressure through the federal contract tender system
as a means of rectifying the preference accorded white males
in the labour market. Additionally, in 1972 the Act was
strengthened, and the Equal Employment Opportunity
Commission was given enforcement powers. The courts
were expressly authorised to make orders for 'affirmative
action', that is, action designed to put right the effects of
past discrimination. In 1973 the EEOC induced the mighty
American Telephone and Telegraph Company to sign a con-
sent decree which involved many millions of dollars in pay-
ment to actual and presumed victims of its past discrimina-
tory policies. The 1973 pay-out amounted to some
$45,000,000. In 1974 AT & T agreed to pay $30,000,000
more to managers, mostly women, who were being paid
less than others doing the same job. In 1975 the US govern-
ment ordered the company to pay an additional S2.5m. for
failing to meet the terms of the 1973 agreement.[1] The AT
& T settlement and a Supreme Court decision in the case of
Griggs vs Duke Power Company[2] which is referred to in
more detail below, sent shock waves through the American
business community and 'equal opportunity' moved sharply
up to the top of many corporate agendas.
What does US management have to do to stay out of
trouble?
American management was for some years uncertain about
what exactly the law required of it. There are certainly still
grey areas today. Discriminatory attitudes and their legacy
in patterns of employment are such a deep-rooted pheno-
menon that it is hardly surprising that it has taken over a
decade to arrive at an understanding of what their eradica-
tion implies in terms of managerial behaviour and systems.
However, detailed guidance has become available through a
number of media
—
court decisions, executive orders, and
guidelines issued by the various federal bodies involved in
enforcing the law and unifying policy. What is significant is
that the law has evolved from an ineffective one to a force
shaping personnel policies of large and small organisations,
and indeed changing the social fabric. It is instructive in this
regard to look at some key US court decisions, agency
guidelines, and the results of executive orders.
US case law
Griggs vs Duke Power Company has already been mentioned.
In this case a specific score on the Wunderlic Personnel Test
and the Bennett Mechanical Aptitude Test and a high school
diploma were required for applicants and transferees to
certain positions in the company. The Supreme Court held
that these procedures were unlawfully discriminatory in
that the company had not shown that the tests were relevant
to successful performance on the jobs for which they were
employed as selection devices, and the tests had an adverse
impact on black Americans. As the Court said, what must
be assessed is an individual for a particular job, not an
individual in the abstract. The burden of
proof,
according
to Griggs, initially lies with the complainant to demonstrate
that the procedure in question selects applicants of a pro-
tected group in a pattern significantly different from that
present in the 'applicant pool'. The burden of proof shifts
to the employer once an adverse impact is established by
the complainant, and the employer must demonstrate a
manifest relationship between the personnel practice and
the job in question. The court stated that the touchstone in
this situation is business necessity.
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