From 1964 to Today: The Law and Our EEO Efforts

Posted on 02/19/2021 11:08 am  /   February 2021

As our Chapter celebrates diversity and inclusion this month, it is refreshing to look back at efforts in the St. Louis community to promote workplace equality over the past year. In case you missed it, here are some of the recent headlines:

There can be no doubt that organizations in St. Louis – many led by you, our fellow Chapter members – have stepped up to promote DE&I in our community.

But how did we get here, legally? So many of our HR practices are born from, or are least intertwined with, legal doctrines and court decisions. Your DE&I efforts are no exception.

As we look forward to a future with more headlines like those above, it is educational to think about legal developments of the past. Over 20 years ago, the U.S. Supreme Court encouraged employers to be more proactive about DE&I, issuing a decision that still shapes our practices today.

The Supreme Court

In 1999, the Supreme Court decided a case where an employer’s efforts to promote diversity and inclusion were placed front-and-center.

The long journey of the lawsuit started seven years earlier with a single promotional decision. A director at a non-profit was retiring. A man and a woman applied for his job. Both had worked closely with the retiring director. And both had solid performance ratings. The man got the job. The woman sued for gender discrimination.

The suit lurched through the courts over the years, all the way to a trial. The woman’s attorney argued that the entire selection process was a sham. There was testimony that a decisionmaker modified the retiree’s job description to better align with the male applicant’s role. Another decisionmaker allegedly told sexually offensive jokes and said derogatory things about women in the workplace.

The jury sided with the woman, awarding her more than $50,000 in backpay damages to compensate her for lost wages.

But a main question in the case was whether the woman could recover “punitive damages” designed to punish her employer for its Title VII violation. At the trial, the judge did not allow her attorney to ask the jury for punitive damages, finding she had not introduce the kind of egregious evidence that could justify a punitive damage award.

The case made its way all the way to Supreme Court. Justice Sandra Day O’Connor wrote an opinion clarifying when an employer may be liable for punitive damages for violations of anti-discrimination laws: “[I]n the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’”

In other words, the Supreme Court proclaimed, an employer who makes good-faith efforts to comply with Title VII would not be liable for punitive damages.

Was the case finished, with that Supreme Court decision? No. The case went back to the trial court so that the employer could have a chance to put on evidence about their EEO efforts. (How lucky that HR team must have felt – nearly a decade later – to head back to trial!)

Good Faith Efforts After 1999

If, by 1999, employers had not come around to making EEO central to the work environment, the Supreme Court’s decision provided a valuable incentive: do your best to comply with anti-discrimination laws, and avoid costly punitive damages. Not a bad deal!

Twenty years later, DE&I efforts in our work environments have come a long way. The articles above show that companies are getting creative. Leaders are making investments in inclusion as they strive to make the workplace a more open place for everyone, regardless of background.

What lessons can we take back today, from that Supreme Court decision 20 years ago? It still has relevance. You might consider a few points.

  • Advocating for EEO in your workplace. As an HR professional, you might find yourself “selling” creative ideas to promote EEO, in your environment. It may be worthwhile to remind your fellow leaders that lukewarm efforts to comply with anti-discrimination laws can – literally – cost the company money. (That may get their attention!) Good faith efforts to promote equal opportunity can immunize an employer from liability for certain types of damages.
  • Putting your DE&I Efforts on Trial. Workplace trials are often about employees telling their stories about wrongdoing at work. But let’s turn the tables for a second. If you were going to explain your DE&I efforts to a jury, what would you say? Would you be able to prove you have made an impact on your work environment? Would you have documentation to explain what you have done, when, and who was involved? If we imagine the story we might want to tell, we can take steps to share the narrative we want.
  • Getting Creative. The Supreme Court did not lay out a roadmap for how we must promote DE&I. The path we take is up to us. That seems like a good thing. Every workplace is different. We can inject creativity in our efforts to eradicate discrimination in the workplace. Some of the stories linked above may give you some ideas about best practices, based on what other St. Louis companies are doing.

DE&I has no doubt come a long way since 1999. It still is helpful not to forget our history, and how we got here.

What will do you in the coming year, in your workplace, to promote DE&I? I’d enjoy hearing from you about that so we can share it in future SHRM STL newsletters. Send me a LinkedIn message and let me know.

Andrew Metcalf
Ogletree, Deakins, Nash, Smoak & Stewart, PC