NEWS Diversity and equal employment opportunity in the US July 3, 2022July 5, 2022 Joseph Henry 0 Comments by Howard Robbins and Suzette Ivanova, Proskauer Rose LLPIn the US there are an ever-expanding set of laws prohibiting discrimination. This chapter considers these laws, as well as the diversity programs implemented by companies to combat discrimination.In the US and the EU, an ever-expanding set of laws prohibit discrimination based on characteristics such as race, religion, and gender, as well as new categories such as genetic predisposition (for example, genetic predisposition to developing cancer or other health problems) and even physical appearance. Discrimination legislation has led to extensive litigation in the US, and this is beginning to happen in the EU. Almost all US companies supplement these laws with diversity programs that encourage positive action to combat discrimination. As new EC discrimination laws are tested in EU courts, EU diversity programs will inevitably follow the US pattern and become more widespread.The chapter also looks at two aspects of anti-discrimination legislation in two countries:The major discrimination class settlements that have taken place in the US in recent years (see table, Notable US class actions).the French interpretation of data privacy laws in the context of diversity programs (see box, EC data protection legislation and diversity programmes in France).US discrimination lawsFederal laws set out anti-discrimination legislation that governs all US employers. This is supplemented by a patchwork of state and local laws.Federal laws. The main body responsible for enforcing federal discrimination laws is the Equal Employment Opportunity Commission (EEOC). This does not pursue many lawsuits itself. The main US laws that prohibit discrimination are:Title VII of the Civil Rights Act 1964 (Title VII). This applies to employers with at least 15 employees. It prohibits discrimination in employment on the basis of- race; color; sex; pregnancy; religion; and national origin.Title VII allows employers to balance between accommodating employees’ religious beliefs and their business needs. This has led to extensive litigation (see below, Discrimination laws in practice – accommodating religious beliefs in the US and UK).The Equal Pay Act of 1963. This prohibits paying lower wages to employees of one gender for work: that is equal in amount; in a job that requires equal skill, effort and responsibility; and that is performed under similar working conditions.Unlike under Title VII, the employer’s intent is irrelevant.The Americans with Disabilities Act of 1990 (ADA). This prohibits discrimination on the basis of a disability in employment and by state and local governments, employment agencies and labour unions.An employee or job applicant qualifies for protection under the act if he:can perform the essential functions of the job in question; and has a disability, ;has a physical or mental impairment that substantially limits one or more major life activities;has a record of such an impairment; or is regarded as having such an impairment (that is, the person may not actually be disabled, but is regarded as being disabled).Employers must reasonably accommodate disabled employees as long as this does not create an undue hardship. The courts generally apply a stricter test to determine undue hardship in disability cases than they do in cases concerning religious belief (see below, Discrimination laws in practice – accommodating religious beliefs in the US and UK)The ADA also prohibits discrimination on the basis of association with a disabled person. In May 2007, the EEOC released new enforcement guidelines stating that employers may violate Title VII if they treat employees with caregiving responsibilities for family members differently from other employees. The EEOC noted that caregiving responsibilities fall disproportionately on women, and especially those of colour. Therefore, relying on stereotypes to predict how carers will or should balance their work could result in unlawful discrimination.The Age Discrimination in Employment Act of 1967 (ADEA). This prohibits discrimination in employment against those over 40 years of age. Unlike EC age discrimination laws, the ADEA only allows mandatory retirement for high-level policymakers or executives.The Civil Rights Act of 1866. This also prohibits race discrimination in employment.The Family and Medical Leave Act of 1993 (FMLA). Employers with at least 50 employees must allow employees to take up to 12 weeks of (consecutive or intermittent) leave:if they have a serious health condition that renders them unable to perform their job;to care for an ill spouse, child or parent; or for the birth or adoption of a child.Unlike under EC law, the FMLA does not require that the leave be paid. After returning from leave, employees are entitled to return to the same or equivalent position.All the federal laws prohibit employers from victimising employees. This can occur, for example, when employees exercise rights, or oppose prohibited conduct, or participate in an investigation proceeding.All federal laws provide a private right of action.State laws. Each of the 50 US states, the District of Columbia and some cities have state and local laws that supplement federal law. Most of these provide a private right of action. These laws sometimes: Are the testing ground for new discrimination laws before their adoption at the federal level.Provide different remedies from federal law, such as unlimited compensatory and punitive damages (these are generally capped under federal law).Provide broader protections than federal law, for example, by: protecting groups of employees who are not covered by federal law; or applying to employers that are too small to fall under the scope of federal law.Examples of types of discrimination banned by statute include:Appearance. For example, Michigan’s Elliot-Larsen Civil Rights Act of 1976 prohibits weight and height discrimination.Genetic disposition to developing diseases or other health conditions. 34 states prohibit genetic discrimination in recruitment, dismissal and terms and conditions of employment.Sexual orientation. For example, the California Fair Employment and Housing Act 2000 and the New York State Human Rights Law (since 2003) ban sexual orientation discrimination.EC discrimination lawsAlthough the EC Treaty has prohibited gender discrimination since 1957, Europe has historically lagged behind the US in enforcing anti-discrimination laws against other protected groups. However, in 2000, two major EC anti-discrimination laws were introduced:Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.These require EU member states to prohibit discrimination on the grounds of:Racial or ethnic origin, Religion or belief, Disability (including a “reasonable accommodation” requirement), Age (but still allowing mandatory retirement and maximum recruiting age),Sexual orientation, Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation was introduced in 2006 to re-state, and combine into one Directive, EC principles on: Equal pay and treatment for men and women, The burden of proof in gender discrimination cases, Sexual harassment, Developments arising from EC case law.It also requires member states to designate an agency (similar to the EEOC in the US) to promote, analyse, monitor and support equal treatment. This body:Assists discrimination victims.Conducts surveys.Publishes reports.Exchanges information with corresponding bodies in other EU member states, such as institutes for gender equality.All EU member states have implemented EC anti-discrimination legislation, and some have exceeded its minimum requirements. For example, the UK has implemented EC religious discrimination laws broadly (see below, Discrimination laws in practice – accommodating religious beliefs in the US and UK).Discrimination laws in practice – accommodating religious beliefs in the US and UKIn the US, Title VII requires employers to accommodate their employees’ religious beliefs in the workplace to the extent that this does not harm their business. Extensive litigation has taken place over the last decade on how employers should balance these two requirements. Since the implementation of EC religious discrimination laws, EU member states have been struggling with similar tensions. For example, in the UK, a broad interpretation of EC religious discrimination laws has encouraged employees to insist on practising their religious beliefs in the workplace, but UK courts have also looked at the employer’s needs.Reasonable accommodation of employees’ religious freedom in the USTitle VII’s definition of religion, although it does not include UK discrimination legislation’s reference to philosophical belief, can be broadly interpreted. A religious belief is protected under the legislation if it is sincerely held, with the strength of traditional religious views. It does not have to be connected to an established church.In contrast to this broad definition, Title VII states that an employer must reasonably accommodate an employee’s religious practices or beliefs, but only as long as this does not create an undue hardship for its business (such as a significant impact on productivity).The US Supreme Court has held that the accommodation of religious beliefs is not reasonable if it:Reduces efficiency.Imposes on other employees’ rights.Compromises worker safety.Breaches a legitimate seniority system.Requires other workers to perform an excessive share of unsafe or difficult work.However, it has also held that an employer cannot generally place more restrictions on religious expression than on other forms of expression that have a comparable effect on workplace efficiency, such as political opinion or even discussion of sports.Two cases in June 2007 illustrate the tension between the definition of religious beliefs and the freedom of employers to reasonably accommodate them:A restaurant-chain operator settled a lawsuit filed by the EEOC, which asserted that the employer violated Title VII when it fired a waitress who refused to sing Happy Birthday to a customer because the waitress was a Jehovah’s Witness whose faith does not recognise such practices.A federal court found that allowing a police officer to wear a Muslim head covering that would have been visible outside her uniform would create undue hardship for the Philadelphia police department. The court found that the garment would have undermined the police force’s solidarity and its goal of maintaining the appearance of religious neutrality.Legislation and case law on employees’ religious freedom in the UKIn the UK, the Equality Act 2006 (effective since 30 April 2007) amended the definition of religion or belief in the Employment Equality (Religion or Belief) Regulations 2003. The definition was: “any religion, religious belief or similar philosophical belief”. The Equality Act removed the word “similar”. This change broadened the scope of what could be regarded as a philosophical belief, so that it could even cover political beliefs. This expansive and progressive law has encouraged employees to bring claims for freedom of religious expression in the workplace.However, case law has sometimes been more restrictive. In Azmi v Kirklees Metropolitan Borough Council (2007) ELR 125, 30 March 2007, an employer directed a teacher not to wear a religious veil while working directly with children. It then suspended her for continuing to do so. The Employment Appeal Tribunal found that the employer did not discriminate. This was because prohibiting the veil was a proportionate means to achieve the legitimate end of effective communication with students, which it believed the veil would have undermined. This decision mirrors US legislation’s attempt to consider the employer’s needs.US diversity programmesDiversity programmes are almost universal in US companies. They are structures that employers implement to promote diversity in the workplace. For example, through the programmes, employers:Monitor the diversity of their workforce.Set targets for the recruitment and promotion of employees in minority groups.Train staff not to discriminate.They exist because of the US demographic and legal landscape, particularly the class action and EEOC discrimination claims and settlements over the last decade.Guidelines, legislation and case law set out various rules as to how extensive US diversity programmes can be, and how they should be implemented.HistoryWhether labelled affirmative action or diversity initiatives, efforts to secure equal treatment and to enhance the presence of, and workplace environment for, women and minorities has a long history in the US, for several reasons:Diversity. According to the US Census Bureau, about one-third of the total US population is part of a racial or ethnic minority group, and 45% of children under the age of five are ethnic minorities. It is estimated that by 2050, about half the US population will be minority groups. Companies have therefore partly introduced diversity programmes to: encourage employee cohesion; learn from different employee perspectives; and gain business advantages in a diverse workplace.Legislation. Legislative requirements underpin the implementation of diversity programmes in the US:all US companies with at least 100 employees must file reports with the federal government on the racial and gender composition of their workforces;companies that are contractors for the US government (about 225,000 employers each year) must adopt affirmative action plans. They must file reports on these to the Office of Federal Contract Compliance (OFCCP).Litigation. US companies in virtually every industry have been subjected to litigation, in particular class action claims and actions the EEOC has brought on behalf of companies’ recruitment of current and former employees, alleging race or gender discrimination in compensation and promotion (see table, Notable US class actions).These lawsuits have increased dramatically over the past decade. They almost always result in settlements, which often range in the millions of dollars. Therefore, US companies have often implemented diversity programmes,as part of settlements; to try and avoid successful litigation claims.Negative publicity. Class actions encourage companies to set up diversity programmes not only because of their expense (see above, Litigation), but also because the media scrutiny that surrounds them can severely damage a company’s reputation. For example, in a 1996 survey, following a class action claim that Denny’s restaurants racially discriminated against customers, 67% of African Americans stated they intended never to eat at the chain again.Public pressure forms part of this negative publicity. For example, before Texaco settled a race discrimination class action, activist Jesse Jackson had called for nationwide boycott of the company. A boycott of Coca-Cola products and a “Ride for Corporate Justice” to the company’s shareholders meeting was organised before Coca-Cola agreed to settle (see table, Notable US class actions).In addition, several Fortune 500 companies have received proposed shareholder resolutions regarding diversity, which can cause significant burdens and embarrassment, as each proposal must be included in the annual proxy statement provided to all shareholders.Guidelines for implementationIf a company decides to adopt a diversity programme, it must be careful to promote diversity without using race or gender as a selection criteria to a highly discriminatory extent. Official rules and extensive case law provide employers with guidelines on the scope and form their diversity programmes can take:Official guidelines. The EEOC has established guidelines to encourage voluntary diversity programmes, including: the Affirmative Action Guidelines; the Uniform Guidelines on Employee Selection (Uniform Guidelines).These guidelines establish the principle that employers can only take race-specific actions after undertaking an analysis that reveals facts to support an inference of an adverse impact in its employment practices. If the employer does not undertake this analysis, or if the inference is not reasonable, the diversity programme must be tailored to the employer’s actual experience.The Uniform Guidelines also set out how an employer should collect race, sex or ethnic classification information to determine its selection procedures’ discriminatory impact. In particular, whenever an employee or job applicant is asked to fill out a self-identification form giving information on race, sex or national origin, the employer:should advise the employee or applicant that the form is used for record-keeping in compliance with federal law, and not for employment decisions;should keep the form separately from the application and not use it directly as a basis for employment decisions;can use the form to conduct analyses on its progress in achieving diversity. It can use this same information, if gathered through other means, to conduct diversity programmes and make employment decisions. Case law. There has been extensive litigation over the scope of diversity programmes. US Supreme Court decisions on Title VII have established a number of guiding principles in this area:employers can select between equally qualified candidates or employees regardless of demographic factors (Texas Department of Community Affairs v Burdine, 450 U.S. 940 (1981) (Burdine));employers can remedy significant or manifest imbalances in their workforce with directed outreach or temporary numerical standards (Johnson v Transportation Agency of Santa Clara County (480 U.S. 616 (1987)) (Johnson) and United Steelworkers of America v Weber (443 U.S. 193 (1979)) (Weber));employers can select between equally qualified candidates and employees, but do not have to establish criteria to a mathematical certainty to determine who is the best qualified (Johnson).The court’s application of these principles is not always consistent. For example:although it is hard to predict what the increasingly conservative Supreme Court would do if it decided the issue today, in 2003 the Court ruled (by a 5-4 vote) in Grutter v Bollinger (539 U.S. 306 (2003)) that the University of Michigan Law School could consider race when admitting students because diversity is a compelling state interest. In support, the Court cited to the amicus curiae (friend of the court) briefs that a large number of major US companies filed to argue that diversity in higher education is critical to achieving workplace diversity;in contrast, on the same day, in Gratz v Bollinger (539 U.S. 244 (2003)), the Court held that the University of Michigan’s undergraduate school policy was unlawful because it added a formulaic 20 points to minority applicants’ evaluation scores;in June 2007, in Parents Involved in Community Schools v Seattle School District No. 1 (127 S. Ct. 2738 (2007)), the Supreme Court held that public school districts could not use race as a single factor to integrate public schools. However, the court did not contradict its prior holding in Grutter (see above) concerning higher education’s close link to workplace diversity.Although not explicitly stated, courts are much stricter when a diversity programme creates discrimination on dismissal, rather than discrimination in lack of promotion (Weber, Johnson) or recruitment (Burdine, Johnson). For example, in Taxman v Board of Education-Piscataway (91 F.3d 1547 (1996), cert. granted, 521 U.S. 1117, cert. denied, 522 U.S. 1010 (1997)), the decision to make a white teacher redundant instead of an equally qualified minority teacher was found to breach Title VII. This was because the deciding factor was the racial composition of the high-school department in which the two teachers worked. The court ruled that the school system was not remedying past discrimination because its entire workforce had a representative minority population, so the goal of having a racially diverse faculty was insufficient.Typical elementsClass action and EEOC settlements generally require employers to implement extensive diversity programmes. In addition, leading US companies often adopt them voluntarily. While there is no one-size-fits-all programme, diversity programmes typically have certain elements:The appointment of an independent monitor or ombudsperson. This is only a product of settlements, as companies would not generally volunteer an outsider to decide whether they are compliant with law and policy. On settlement, this person receives and investigates discrimination complaints, and monitors the company’s compliance with the settlement agreement, company policies and discrimination laws. For example:Texaco (see table, Notable US class actions) was required to establish an independent Equality and Tolerance Task Force to monitor compliance with its settlement agreement. This consisted of: three members selected by class counsel; three members selected by Texaco; and one independent chairperson.Morgan Stanley (see table, Notable US class actions) was required to:submit any proposed changes to its discrimination and complaint policies to the EEOC for review; andprovide the EEOC with annual data on the compensation and sex of employees who were eligible for promotion to high-level positions.some settlements require that external EEOC investigators, rather than the company’s human resources department, inquire into discrimination complaints.Visible support from senior corporate leaders. The support of corporate leaders, such as the chief executive officer (CEO), helps amass and maintain the support of other executives and management for diversity as a key corporate goal. For example, the CEO of American Express (AMEX):reviews quarterly reports that analyse recruitment efforts at all levels of the company; conducts follow-up discussions with business leaders.Accountability and incentivisation of managers for the promotion of diversity. Several corporations have linked compensation to diversity goals (for example, AMEX, Bayer, Dupont, Eli Lilly, Merck, Merrill Lynch and Prudential). Coca Cola’s settlement (see table, Notable US class actions) required 20% of its senior executives’ annual bonus to be tied to reaching specific organisation-wide goals of increasing the number of female and minority employees.Revision and formalisation of employment processes. Employers review, for example, their procedures in the following areas:Promotion. A formalised promotion process enhances the development of internal candidates, and the appearance of objectivity in the selection process;Job descriptions. Descriptions that adequately identify the skills, knowledge and abilities required for the post make discrimination more difficult;Recruitment. A standard recruitment procedure, including standardised questions, helps ensure an objective process. For example, FedEx (see table, Notable US class actions) was required to discontinue the use of its basic skills test to award courier and other positions;Performance. Performance evaluation systems can be expanded and standardised.Programmes to enhance employees’ career development, recruitment and retention. These programmes often include increased and structured mentoring and executive coaching programmes, career counselling, and the encouragement of affinity groups. For example:Abbott Laboratories hosts 150 engineering and business students from the historically black Howard University each year for a recruitment day where students meet with senior management, Howard alumni, tour the facility and learn about working at Abbott;Merck committed US$20 million (about EUR14.9 million) over ten years to the United Negro College Fund (for a combination of scholarships and internships for African-American scientists pursuing studies in biomedical research);several corporations sponsor and have relationships with minority or women’s professional associations, for example:the National Black MBA (Master of Business Administration) Association;the Society of Black Engineers; and the Society of Women Engineers.at IBM, minority executives mentor employees within their minority group, and Coca-Cola implements multiple mentoring programs, including company-wide one-to-one and group mentoring.Diversity goals. Clear diversity goals give companies and management a target to work towards. For example, Texaco (see table, Notable US class actions) was required to commit to increasing its minority employees to between 23% and 29% of its workforce.Diversity councils. A number of companies have created diversity councils or diversity departments. For example:IBM has an expansive diversity council network, comprising 50 councils worldwide. Over half of IBM’s Worldwide Management Council is involved with diversity programmes in a partnership role, and provides direction and guidance; at JPMorgan Chase, a company-wide diversity council chaired by the CEO sets diversity goals for the company. The corporation also has a diversity council at each business unit around the world.Training. Expanding management and employee training in relation to diversity, discrimination and harassment is a key component in any diversity initiative. For example: at Denny’s restaurants, all 70,000 company and franchise employees complete four-hour diversity training, and all managers must participate in a full-day diversity training session;IBM requires a three-hour programme for executives, a one-day programme for managers, and a one-day voluntary programme for employees.Information tracking. Arguably, the most important element to any diversity programme is to gauge its perception and results. This allows companies to: understand where there are inequities in the diversity balance; and gain insight as to why such inequities exist.Information tracking can include: exit interviews; regular analysis of data reflecting the representation of female employees and minorities in various business departments or units, further broken down by position. For example, regular compensation audits determine whether there is any discriminatory disparity in pay.EU diversity programmesEU diversity programmes are not particularly common, and US multinationals have led the way in implementing them. Their implementation varies between member states, for example, being much more common in the UK than in France. EU companies face many sources of pressure to adopt diversity programmes, as well as significant hurdles.Barriers to implementationPositive action has a more limited history in Europe than in the US, for several reasonsPermissive legislation. There is no legal obligation under EC anti-discrimination legislation for companies to collect data to reduce discrimination. Therefore, companies have less ability and pressure to monitor and address diversity issues.Lack of precedent. The European Court of Justice (ECJ) has heard few cases on diversity programmes and there is no tradition of class-action employment litigation in Europe. This is unlike the decades of litigation in the US on the lawful extent of diversity programmes (see above, US diversity programmes: Guidelines for implementation: Case law) and on discrimination (see above, US diversity programmes: History: Litigation and table, Notable US class actions). The cases that have been brought to the ECJ have mostly only dealt with preferential treatment that has been characterised as reverse or positive discrimination.Cultural barriers. There are two main cultural hurdles to implementing diversity programmes:some racial categories used in the US are not readily understood in the EU, such as Hispanic or African-American. This makes it hard for US companies to implement their diversity programmes uniformly in their EU and US offices;sometimes the programmes are perceived to promote racial separatism rather than assimilation and integration. For example, diversity programmes run counter to French tradition, because the tradition of equality creates resistance to differential treatment according to race, even if favourable to minorities.Data protection legislation. US companies often analyse employee demographics in relation to race and gender, as a precaution, to enhance recruitment and retention, or because of litigation (see above, US diversity programmes: Typical elements: Information tracking). However, stringent EC data protection legislation specifically prohibits the processing of sensitive data. This is defined as personal data that discloses, among other information: racial or ethnic origin; religious beliefs.There are two main exceptions to this legislation:Express consent. An employee’s personal data can be processed if he freely gives his express consent. However, this consent is difficult to obtain, because the legislation presumes that an employee does not give any consent freely to an employer, because of the disparity of power between the employer and employee;Anonymity. The employer can avoid the legislation if it collects information by anonymous questionnaires, because data privacy laws only restrict the processing of information on an identified or identifiable natural person. However, member states often limit employers’ freedom in this area.For an example of the application of EC data privacy laws in the context of diversity programmes, see box, EC data protection legislation and diversity programmes in France.Increased adoption of diversity programmesDespite barriers to implementation, demographic and legal changes in Europe mean that it may just be a matter of time before diversity programmes become a routine part of European companies’ corporate policies:Diversity. In Europe, there has been a consistent increase in immigration from North Africa since the end of World War II. For example, in the UK, the ethnic minority (that is, the non-white British) population increased by 50% from 1991 to 2001, reaching 7.9% in 2001. In France, there has been a steady immigration from North Africa. This increased multiculturalism has been accompanied by increased religious diversity and changing roles for women in the workplace.This increasing diversity will undoubtedly lead to a greater push by protected minority groups for numerical representation, rather than just abstract protections of individual rights. For example, in the wake of the 2005 race riots in the suburbs of major French cities, the French government said it would step up its efforts to fight racism, and there has been a sharp jump in the number of complaints filed with the French anti-discrimination enforcement agency (Haute Autorité de Lutte contre les Discriminations et pour l’Egalité).Legislative changes. EC discrimination legislation has greatly expanded in recent years (see above, EC discrimination laws). This new legislative structure provides a vehicle for increasing and publicising allegations of bias.For example, in Adecco/Garnier in July 2007, the Paris Court of Appeal held that L’Oreal subsidiary Garnier and its temporary agency Adecco had tried to exclude applicants for a 2001 shampoo campaign who were from Arab, Asian or African backgrounds. This was the first race discrimination case brought against a major French corporation. Perhaps prompted by this case, L’Oreal has now become one of the leading French companies in relation to diversity programmes. For example, it sends its managers to high schools to offer coaching on curriculum vitae-writing and how to behave during job interviews, and recruits employees from job fairs in disadvantaged areas. This case was similar to the class action brought against Abercrombie & Fitch Co in 2004 (see table, Notable US class actions) and the result mirrors US companies’ implementation of diversity programmes to counter litigation and popular pressure.Over the last 50 years, the populations of the US and Europe have become increasingly diverse. The US has an extensive legislative framework to combat any kind of discrimination in the workplace, and therefore a strong tradition of claims under this legislation, often brought as class actions. Over the last decade, the EU has greatly expanded its discrimination laws, and litigation has increased accordingly. As governments try to balance employers’ needs against employees’ rights, US companies have widely implemented diversity programmes to settle and to avoid claims. While there are some legal and cultural barriers to the broad adoption of US-style diversity programmes, Europe’s demographic and legal changes mean that it has probably passed the point of no return towards also implementing such measures.Notable US class actionsCompanyDate of settlementType of claimSettlement termsTexaco1996A race discrimination class action.US$176 million (about EUR131 million) and equitable relief.UPS1999A race discrimination class action.US$12.1 million (about EUR9 million) and equitable relief.Coca Cola2000A race discrimination class action by black employees.A then-record US$192.5 million (about EUR143 million) and equitable relief.Interstate Brands Co2000A race discrimination class action.US$132 million (about EUR98 million). This was later reduced to US$33 million (about EUR24.5 million).Rent-A-Center2000A sex discrimination action brought by the Equal Employment Opportunity Commission (EEOC).US$47 million (about EUR35 million) and equitable relief.Morgan Stanley2004A sex discrimination lawsuit brought by the EEOC.US$54 million (about EUR40 million) and equitable relief. 2007A sex discrimination class action by 2,700 female financial advisers and trainees.US$46 million (about EUR34.2 million).American Express2002A sex discrimination class action.US$31 million (about EUR23 million) and equitable relief.Abercrombie & Fitch Co2004A class action by black, Hispanic and Asian employees alleged that the company promoted an all-white image in its employment and marketing, and that it relegated minority employees to stock rooms and other less visible positions when it did recruit them.US$40 million (about EUR30 million) and equitable relief.Boeing2004A gender discrimination class action.US$72.5 million (about EUR54 million) and equitable relief.Sunoco2004A race discrimination class action brought on behalf of black managerial employees.US$5.5 million (about EUR4 million) and equitable relief.Wal-MartPendingA class of up to 1.6 million women have claimed sex discrimination. CostcoPendingA class of women have claimed that they have been denied promotion to assistant and general manager positions since 2002. EC data protection legislation and diversity programmes in FranceEC data protection legislation can create an obstacle to the collection of information under diversity programmes (see EU diversity programmes: Barriers to implementation: Data protection legislation). In France, the National Commission for Data Processing and Civil Liberties (Commission nationale de l’informatique et des libertés (CNIL)) oversees data privacy law compliance.The CNIL has stated that combating employment discrimination is a legitimate goal. Therefore, employers do not violate privacy laws if they use information on employees to conduct statistical analyses of corporate diversity. Therefore, employers in France can collect an employee or job applicant’s:Discrimination laws in practice – accommodating religious beliefs in the US and the UKIn the US, Title VII of the Civil Rights Act 1964 (Title VII) requires employers to accommodate their employees’ religious beliefs in the workplace to the extent that this does not harm their business. Extensive litigation has taken place over the last decade on how employers should balance these two requirements. Since the implementation of EC religious discrimination laws, EU member states have been struggling with similar tensions. For example, in the UK, a broad interpretation of EC religious discrimination laws has encouraged employees to insist on practising their religious beliefs in the workplace, but UK courts have also looked at the employer’s needs.Reasonable accommodation of employees’ religious freedom in the USTitle VII’s definition of religion, although it does not include UK discrimination legislation’s reference to philosophical belief, can be broadly interpreted. A religious belief is protected under the legislation if it is sincerely held, with the strength of traditional religious views. It does not have to be connected to an established church.In contrast to this broad definition, Title VII states that an employer must reasonably accommodate an employee’s religious practices or beliefs, but only as long as this does not create an undue hardship for its business (such as a significant impact on productivity).The US Supreme Court has held that the accommodation of religious beliefs is not reasonable if it:Reduces efficiency.Imposes on other employees’ rights.Compromises worker safety.Breaches a legitimate seniority system.Requires other workers to perform an excessive share of unsafe or difficult work.However, it has also held that an employer cannot generally place more restrictions on religious expression than on other forms of expression that have a comparable effect on workplace efficiency, such as political opinion or even discussion of sports.Two cases in June 2007 illustrate the tension between the definition of religious beliefs and the freedom of employers to reasonably accommodate them:A restaurant-chain operator settled a lawsuit filed by the Equal Employment Opportunity Commission (EEOC), which asserted that the employer violated Title VII when it fired a waitress who refused to sing Happy Birthday to a customer because the waitress was a Jehovah’s Witness whose faith does not recognise such practices.A federal court found that allowing a police officer to wear a Muslim head covering that would have been visible outside her uniform would create undue hardship for the Philadelphia police department. The court found that the garment would have undermined the police force’s solidarity and its goal of maintaining the appearance of religious neutrality.Legislation and case law on employees’ religious freedom in the UKIn the UK, the Equality Act 2006 (effective since 30 April 2007) amended the definition of religion or belief in the Employment Equality (Religion or Belief) Regulations 2003. The definition was: “any religion, religious belief or similar philosophical belief”. The Equality Act removed the word “similar”. This change broadened the scope of what could be regarded as a philosophical belief, so that it could even cover political beliefs. This expansive and progressive law has encouraged employees to bring claims for freedom of religious expression in the workplace.However, case law has sometimes been more restrictive. In Azmi v Kirklees Metropolitan Borough Council (2007) ELR 125, 30 March 2007, an employer directed a teacher not to wear a religious veil while working directly with children. It then suspended her for continuing to do so. The Employment Appeal Tribunal found that the employer did not discriminate. This was because prohibiting the veil was a proportionate means to achieve the legitimate end of effective communication with students, which it believed the veil would have undermined. This decision mirrors US legislation’s attempt to consider the employer’s needs.