LGBT employment discrimination in the United States

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/LGBT_employment_discrimination_in_the_United_States 

 

Map of states that have sexual orientation and gender identity discrimination prohibited in public and/or private employment via statute, executive order, regulation, and/or case law:

  Sexual orientation and gender identity discrimination prohibited in public and private employment

  Gender identity discrimination prohibited in public and private employment; sexual orientation discrimination prohibited in public employment only

  Sexual orientation discrimination prohibited in public and private employment

  Sexual orientation and gender identity discrimination prohibited in public employment only

  Sexual orientation discrimination prohibited in public employment only

LGBT employment discrimination in the United States is illegal under Title VII of the Civil Rights Act of 1964; employment discrimination on the basis of sexual orientation or gender identity is encompassed by the law's prohibition of employment discrimination on the basis of sex. Prior to the landmark cases Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (2020), employment protections for LGBT people were patchwork; several states and localities explicitly prohibit harassment and bias in employment decisions on the basis of sexual orientation and/or gender identity, although some only cover public employees. Prior to the Bostock decision, the Equal Employment Opportunity Commission (EEOC) interpreted Title VII to cover LGBT employees; the EEOC determined that transgender employees were protected under Title VII in 2012, and extended the protection to encompass sexual orientation in 2015.

Federal employees and law

Presidents have established certain protections for some employees of the federal government by executive order. It was not for years that a president did in fact establish an executive order in order to protect LGBT discrimination in the work force. In 1995, President Bill Clinton's Executive Order 12968 establishing criteria for the issuance of security clearances included sexual orientation for the first time in its non-discrimination language: "The United States Government does not discriminate on the basis of race, color, religion, sex, national origin, disability, or sexual orientation in granting access to classified information." It also said that "no inference" about suitability for access to classified information "may be raised solely on the basis of the sexual orientation of the employee." Clinton's Executive Order 13087 in 1998 prohibited discrimination based on sexual orientation in the competitive service of the federal civilian workforce. It applied to employees of the government of the District of Columbia and the United States Postal Service and to civilian employees of the armed forces, but not to certain excepted services, such as the Central Intelligence Agency, National Security Agency, and the Federal Bureau of Investigation. Clinton acknowledged its limitations in a statement:

The Executive Order states Administration policy but does not and cannot create any new enforcement rights (such as the ability to proceed before the Equal Employment Opportunity Commission). Those rights can be granted only by legislation passed by the Congress, such as the Employment Non-Discrimination Act.

At the start of 2010, the Obama administration included gender identity among the classes protected against discrimination under the authority of the Equal Employment Opportunity Commission (EEOC). It was Obama's wish to further attend to LGBT civil rights not only through legislation, but also the executive branch. In 2012 the Equal Employment Opportunity Commission ruled that Title VII of the Civil Rights Act of 1964 does not allow gender identity-based employment discrimination because it is a form of sex discrimination. In 2015, the Equal Employment Opportunity Commission concluded that Title VII of the Civil Rights Act of 1964 does not allow sexual orientation discrimination in employment because it is a form of sex discrimination.

In March 2018, the Sixth Circuit Court of Appeals ruled in EEOC v. RG & GR Harris Funeral Homes that transgender people are protected by federal sex discrimination laws. By August of that year, 16 states had joined an amicus brief asking the U.S. Supreme Court to reconsider the ruling. The Supreme Court has agreed to hear the case as R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission during the 2019-2020 term.

On March 31, 2014, U.S. District Court Judge Colleen Kollar-Kotelly ruled in the case of TerVeer v. Billington, that Peter TerVeer can sue for discrimination under Title VII of the Civil Rights Act, that bans sex discrimination, claiming that he faced discrimination after his boss found out that he was gay. Title VII does not explicitly protect against sexual orientation discrimination, but Judge Kollar-Kotelly's ruling leaves that a person could bring a claim under Title VII's ban on sex discrimination because an employer views an employee's sexual orientation as "not consistent with acceptable gender roles."

On July 21, 2014, President Obama signed Executive Order 13672, adding "gender identity" to the categories protected against discrimination in hiring in the federal civilian workforce and both "sexual orientation" and gender identity" to the categories protected against discrimination in hiring and employment on the part of federal government contractors and sub-contractors. On July 31, 2014, Obama also signed Executive Order 13673, "Fair Pay and Safe Workplaces," requiring companies with large federal contracts to prove their compliance with labor laws; this executive order, however, was revoked by President Trump on March 27, 2017.

In 2017, the Trump administration, through the Department of Justice, reversed the Obama-era policy which used Title VII to protect transgender employees from discrimination.

A bill to ban employment discrimination on the basis of sexual orientation and gender identity, the Employment Non-Discrimination Act (ENDA), was introduced repeatedly in the U.S. Congress since 1994. Under the ENDA, it was illegal for an employer to discriminate against their employees due to their sexual orientation or gender identity. Unlike the Equality Act of 1974, the main focus of the ENDA was to end employment discrimination. In 1994, the ENDA only made it illegal for employers to discriminate against employees based on their sexual orientation. By 2007, discrimination based on gender identity had been added to the law as well. In 2015, a broader bill, the Equality Act, was introduced in place of this.

In March 2019, a group representing the Department of Justice's LGBTQ employees addressed a letter to Attorney General William Barr, complaining about the increasing hostility and discrimination towards the LGBTQ employees. The group also claimed that LGBTQ employees had left the department due to alleged mistreatment and that the department did nothing to recruit and retain top LGBTQ employees.

State law prior to Bostock v. Clayton County, Georgia

Pennsylvania became the first state to ban public sector employment discrimination based on sexual orientation in 1975. Wisconsin became the first state to ban both public and private sector employment discrimination based on sexual orientation in 1982. Minnesota became the first state to ban employment discrimination based on both sexual orientation and gender identity when it passed the Human Rights Act in 1993. Currently, twenty-three states, the District of Columbia, and at least 400 cities and counties have enacted bans on discrimination based on sexual orientation and gender identity.

Twenty one states, the District of Columbia, Guam, and Puerto Rico have statutes that protect against both sexual orientation and gender identity discrimination in employment in the public and private sector: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, and Washington. Two states Michigan and Pennsylvania, have acquired such protections through executive orders, court rulings or binding decisions by their respective civil rights commissions.

In addition, two states, Indiana and Wisconsin prohibit discrimination on account of sexual orientation only; gender identity is not addressed. Indiana, in accordance with Hively v Ivy Tech Community College, a ruling by the Seventh Circuit Court of Appeals, and Wisconsin through a statute enacted in 1982, which made Wisconsin the first state to have private employment protections for sexual orientation. Similarly to Indiana, the Courts of Appeals for the Sixth, and Eleventh Circuits, covering Alabama, Florida, Georgia, Kentucky, Michigan, Ohio, and Tennessee, have found sex protections in the 1964 Civil Rights Act to include the category of gender identity.

Furthermore, 10 U.S. states have an executive order, administrative order, or personnel regulation prohibiting discrimination in public employment only based on either sexual orientation or gender identity: Indiana, Ohio, Kentucky, Montana, North Carolina, Michigan, Wisconsin, Pennsylvania, Virginia and Kansas. An additional 3 states have executive orders prohibiting discrimination in public employment based on sexual orientation only: Alaska, Arizona, and Missouri.

The remaining states do not offer any type of discrimination protections for the LGBT community at the state level, although some cities and localities have passed their own ordinances within these states.

Chronological order

1972: No LGBT civil rights at the state level, although the first local protections were enacted this year in Michigan (in East Lansing and Ann Arbor).
1973: District of Columbia: Sexual orientation protected in all employment
1975: Pennsylvania: Sexual orientation protected in state employment
1979: California: Sexual orientation protected in state employment
1982: Wisconsin: Sexual orientation protected in all employment
1983: New York: Sexual orientation protected in state employment
          Ohio: Sexual orientation protected in state employment
1985: New Mexico: Sexual orientation protected in state employment
          Rhode Island: Sexual orientation protected in state employment
          Washington: Sexual orientation protected in state employment
1987: Oregon: Sexual orientation protected in state employment
1988: Oregon: Sexual orientation no longer protected in state employment
1989: Massachusetts: Sexual orientation protected in all employment
1990: Colorado: Sexual orientation protected in state employment
1991: Connecticut: Sexual orientation protected in all employment
          Hawaii: Sexual orientation protected in all employment
          Minnesota: Sexual orientation protected in state employment
          New Jersey: Sexual orientation protected in state employment
1992: California: Sexual orientation protected in all employment
          Louisiana: Sexual orientation protected in state employment
          New Jersey: Sexual orientation protected in all employment
          Vermont: Sexual orientation protected in all employment
          Oregon: Sexual orientation protected in state employment
1993: Minnesota: Sexual orientation and gender identity protected in all employment
1995: Maryland: Sexual orientation protected in state employment
          Rhode Island: Sexual orientation protected in all employment
1996: Illinois: Sexual orientation protected in state employment
          Louisiana: Sexual orientation no longer protected in state employment
1998: New Hampshire: Sexual orientation protected in all employment
1999: Iowa: Sexual orientation and gender identity protected in state employment
          Nevada: Sexual orientation protected in all employment
          Ohio: Sexual orientation no longer protected in state employment
          Delaware: Sexual orientation protected in state employment
          Iowa: Sexual orientation and gender identity no longer protected in state employment
          Montana: Sexual orientation protected in state employment
2001: Indiana: Sexual orientation protected in state employment
          Maine: Sexual orientation protected in state employment
          Maryland: Sexual orientation protected in all employment
          Rhode Island: Gender identity protected in all employment
2002: Alaska: Sexual orientation protected in state employment
          New York: Sexual orientation protected in all employment
2003: Arizona: Sexual orientation protected in state employment
          California: Gender identity protected in all employment
          Kentucky: Sexual orientation and gender identity protected in state employment
          Michigan: Sexual orientation protected in state employment
          New Mexico: Sexual orientation and gender identity protected in all employment
          Pennsylvania: Gender identity protected in state employment
2004: Indiana: Gender identity protected in state employment
          Louisiana: Sexual orientation protected in state employment
2005: Illinois: Sexual orientation and gender identity protected in all employment
          Maine: Sexual orientation and gender identity protected in all employment
          Virginia: Sexual orientation protected in state employment
2006: District of Columbia: Gender identity protected in all employment
          Kentucky: Sexual orientation and gender identity no longer protected in state employment
          New Jersey: Gender identity protected in all employment
          Washington: Sexual orientation and gender identity protected in all employment
2007: Colorado: Sexual orientation and gender identity protected in all employment
          Iowa: Sexual orientation and gender identity protected in all employment
          Kansas: Sexual orientation and gender identity protected in state employment
          Maryland: Gender identity protected in state employment
          Michigan: Gender identity protected in state employment
          Ohio: Sexual orientation and gender identity protected in state employment
          Oregon: Sexual orientation and gender identity protected in all employment
          Vermont: Gender identity protected in all employment
2008: Kentucky: Sexual orientation and gender identity protected in state employment
          Louisiana: Sexual orientation no longer protected in state employment
2009: Delaware: Sexual orientation protected in all employment
          Delaware: Gender identity protected in state employment
          New York: Gender identity protected in state employment
2010: Virginia: Sexual orientation no longer protected in state employment
          Missouri: Sexual orientation protected in state employment
2011: Ohio: Gender identity no longer protected in state employment
          Massachusetts: Gender identity protected in state employment
          Hawaii: Gender identity protected in all employment
          Nevada: Gender identity protected in all employment
          Connecticut: Gender identity protected in all employment
          Alabama: Gender identity protected in all employment
          Florida: Gender identity protected in all employment
          Georgia: Gender identity protected in all employment
2012: Massachusetts: Gender identity protected in all employment
2013: Puerto Rico: Sexual orientation and gender identity protected in all employment
          Delaware: Gender identity protected in all employment
2014: Virginia: Sexual orientation and gender identity protected in state employment
          Maryland: Gender identity protected in all employment
2015: Kansas: Sexual orientation and gender identity no longer protected in state employment
          Utah: Sexual orientation and gender identity protected in all employment
          Guam: Sexual orientation and gender identity protected in all employment
2016: Montana: Gender identity protected in state employment
          New York: Gender identity protected in all employment
          North Carolina: Sexual orientation and gender identity protected in state employment
          Louisiana: Sexual orientation and gender identity protected in state employment
          New Hampshire: Sexual orientation and gender identity protected in state employment
2017: Indiana: Sexual orientation protected in all employment
          Louisiana: Sexual orientation and gender identity no longer protected in state employment
2018: Kentucky: Gender identity protected in all employment
          Michigan: Gender identity protected in all employment
          Ohio: Gender identity protected in all employment
          Tennessee: Gender identity protected in all employment
          Michigan: Sexual orientation and gender identity protected in all employment
          New Hampshire: Gender identity protected in all employment
          Pennsylvania: Sexual orientation and gender identity protected in all employment
          Ohio: Sexual orientation and gender identity protected in state employment
2019: Wisconsin: Sexual orientation and gender identity protected in state employment
          Kansas: Sexual orientation and gender identity protected in state employment
2020: Virginia: Sexual orientation and gender identity protected in all employment

Local laws

Main article: List of cities and counties in the United States offering an LGBT non-discrimination ordinance

Private sector policies

Many large companies provide equal rights and benefits to their lesbian, gay, bisexual, and transgender employees, as measured by the Human Rights Campaign (HRC) through its Corporate Equality Index. The 2015 report found 366 businesses achieved a top rating of 100 percent. The report also found 89% of Fortune 500 businesses have non-discrimination policies on the basis of sexual orientation, while 66% of Fortune 500 businesses have non-discrimination policies on the basis of gender identity. Each year, corporations send thousands of employees to the Out & Equal Regional Summit, a conference that aims to create a more inclusive work environment for lesbian, gay, bisexual and transgender employees. There are workplace resources for how allies can create a more inclusive work environment, including programs available through PFLAG.

Widespread adoption of private workplace policies may be motivated by good business sense, the Williams Institute suggests. Its conclusion is based on a set of studies that show that lesbians and gay men who have come out at work report lower levels of anxiety, less conflict between work and personal life, greater job satisfaction, more sharing of employers' goals, higher levels of satisfaction with their co-workers, more self-esteem, and better physical health.

Repeal efforts

Main article: List of U.S. ballot initiatives to repeal LGBT anti-discrimination laws

Impact of court interpretation on cases

Statutory interpretation

Statutory interpretation is when the Court determines the meaning of a statute, using a variety of methods, to make a ruling in a case.

Before Bostock v. Clayton County (2020), there were numerous court cases that discussed the meaning of “sex” in Title VII of the Civil Rights Act of 1964. Two of the more important cases involving statutory interpretation were Price Waterhouse v. Hopkins (1989) and Oncale v. Sundowner (1998).

In Price Waterhouse, the plaintiff, Ann Hopkins, sued her employer when her proposal for partnership was dismissed and claimed it was because of her being a woman. The Supreme Court noted that Hopkins’ failure to meet gender norms was taken into account by Price Waterhouse when making their employment decision. The Court stated in their decision that Title VII is violated when sex-based considerations and/or gender is used to make decisions regarding employment. By using statutory interpretation in the majority opinion, the Court in Price Waterhouse expanded the interpretation of Title VII to “establish liability if a plaintiff proved sex was a “motivating” or “substantial” factor in a decision based on a mix of legitimate and illegitimate factors”.

In Oncale v. Sundowner Offshore Services, Inc., Joseph Oncale, an employee on an oil platform crew for Sundowner Offshore Services claimed he was sexually harassed by other employees and received no support from management. Oncale proceeded to file a complaint against his employer claiming his rights under Title VII were violated by the sexual harassment that had taken place at work. The Court ruled unanimously that all discrimination based on sex was in violation of Title VII of the Civil Rights Act regardless of the victim’s gender. The statutory interpretation by the Court allowed for a precedent to be set for deciding the outcome in same-sex harassment cases. By establishing this precedent, the Court made a statement for same-sex harassment cases that sets up the outcomes of numerous other cases centered on the question of LGBTQ protections under Title VII.

In Bostock v. Clayton County, Gerald Bostock, an employee of Clayton County, Georgia, expressed interest in participating in a gay recreational softball league in 2013. Shortly after, he was ridiculed by colleagues for his choices, including those related to his sexual orientation. After being abruptly fired for “conduct unbecoming of its employees,” Bostock filed a claim with the EEOC because he believed his firing was discriminatory. Bostock lays out his argument using the plain-text approach of statutory interpretation that the Court agrees with and rules in his favor. The argument consisted of analyzing the broad meaning of “because of sex” and looking at the dictionary definition of “homosexual.” Because of this statutory groundwork, Bostock argues that discriminating against an employee for their sexual orientation “requires an employer to intentionally treat individual employees differently because of their sex,” and thus, is able to convince the Court to rule that sexual orientation discrimination violates the protections laid out in Title VII. Although the Court agrees with Bostock and rules in his favor, the use of statutory interpretation may cause a troublesome future for this precedent. A simple majority vote in Congress would be effective in reversing the decision by the Court and overruling their interpretation of Title VII. With this thought in mind, a constitutional approach usually has larger, more controversial, political stakes than statutory approaches have.

Constitutional interpretation

Constitutional interpretation is when the Court determines the constitutionality of a bill, act, statute, law, etc. that is brought before the Court.

After entering the home of John Lawrence, Houston police discovered Lawrence performing sexual acts with another man and arrested them both for breaking a Texas law. In Lawrence v. Texas (2003), the Texas law, which prohibited engaging with a member of your sex in a sexual act, made its way to the Supreme Court where they struck down the law because of its violation of the Due Process Clause of the Fourteenth Amendment. Through the moral reasoning approach, the Court expanded on the meaning of “liberty” in the Fourteenth Amendment to include those of same-sex individuals and thus protect them under that amendment.

In United States v. Windsor (2013), the Supreme Court’s decision established the groundwork needed for the landmark decision in Obergefell v. Hodges in 2015. A couple married legally under Canadian law, Edith Windsor and Thea Spyer, moved to New York where their marriage was recognized but when filing taxes for the federal government, the United States did not recognize their marriage. Windsor sued the federal government declaring that the Defence of Marriage Act (DOMA) was unconstitutional. After lots of input from other government agencies and branches, the Supreme Court reached a decision in 2013 confirming that DOMA creates a “disadvantage, a separate status, and so a stigma” against same-sex couples which violates their protections under the Fifth Amendment. By using a broad understanding of 'equal protection' in the majority opinion, the Court extended the protections of the Constitution to include the LGBTQ community and set a precedent, yet again, for future cases. Even more, the Court made clear that defining marriage has always been a right of the states and not the federal government and therefore, the Court established their decision to hear and rule on the case as constitutional. This interpretation by the Court may cause mixed emotions because of their controversial manner of reversing a policy passed in a democratic way by Congress however, because of the previous statement, the Court was required to interfere to prohibit the discrimination of a specific group of people.

The landmark LGBTQ rights case came in 2015 with the Supreme Court’s decision in Obergefell v. Hodges that guaranteed Fourteenth Amendment protections and liberties to same-sex couples. The majority held the prohibition against same-sex marriage from multiple states as unconstitutional and reflected both the judicial precedent and historical reasoning approach in their ruling. Further, the Court extended their argument by claiming that there was no legal argument for refusing same-sex couples the right to marry in any state. In the opinion, the Court reflects on de Tocqueville's description of marriage as "'the foundation of the family and of society, without which there would be neither civilization nor progress,'" from Maynard v. Hill (1888). Again, opponents of this interpretation claim the Supreme Court is overstepping their constitutional authority however, the majority definitively states that "when the rights of persons are violated, 'the Constitution requires redress by the courts.'"

LGBT people's experiences of workplace discrimination and Harassment

In 2020, 8.9% of employed LGBT people, including 11.3% of LGBT employees of color and 6.5% of white LGBT employees, reported being fired or not hired because of their sexual orientation or gender identity. 29.0% of LGBT employees of color said they were not hired because of their LGBT status, compared to 18.3% of white LGBT employees. Over half of LGBT employees who experienced discrimination or harassment at work (57.0%) said their boss or coworkers did or said something that indicated the unfair treatment was motivated by religious beliefs. In comparison to 49.4% of white LGBT employees, nearly two-thirds (63.5%) of LGBT employees of color said religion was a motivating factor in their workplace discrimination experiences.

Impact of COVID-19 on LGBTQ employment discrimination

LGBTQ people have been adversely affected by both the COVID-19 pandemic and the social-economic chaos. According to research by MAP(Movement Advancement Project), LGBTQ people, particularly people of color and those who are raising children, experience high rates of economic instability and are more likely to face discrimination at work and during job search as well. In comparison to 45% of non-LGBTQ people, 64% of LGBTQ people said they or an adult in their household had lost their job. This is especially concerning because LGBTQ people face higher rates of employment discrimination in general and may have difficulty finding new jobs, this number rises to 71% among Latino LGBTQ households. According to a survey conducted by HRC and PSB in April/May 2020, one-third (33%) of LGBTQ people reduced their hours of work, whereas higher rates for LGBTQ people of color (38%).

In light of employment discrimination against LGBT people, the Biden administration has strengthened laws prohibiting sex discrimination based on gender identity and sexual orientation. Also, in consultation with the attorney general, the heads of the respective agencies must ensure that existing policies are being followed and develop a plan to combat workplace discrimination.

Employment discrimination law in the United States

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Employment_discrimination_law_in_the_United_States 

Employment discrimination law in the United States derives from the common law, and is codified in numerous state, federal, and local laws. These laws prohibit discrimination based on certain characteristics or "protected categories." The United States Constitution also prohibits discrimination by federal and state governments against their public employees. Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state law, including the Title VII of the Civil Rights Act of 1964. Federal law prohibits discrimination in a number of areas, including recruiting, hiring, job evaluations, promotion policies, training, compensation and disciplinary action. State laws often extend protection to additional categories or employers.

Under federal employment discrimination law, employers generally cannot discriminate against employees on the basis of race, sex (including sexual orientation and gender identity), pregnancy, religion, national origin, disability (physical or mental, including status), age (for workers over 40), military service or affiliation, bankruptcy or bad debts, genetic information, and citizenship status (for citizens, permanent residents, temporary residents, refugees, and asylees).

List of United States federal discrimination law

• Equal Pay Act of 1963
• Civil Rights Act of 1964
  • Title VI of the Civil Rights Act of 1964
  • Title VII of the Civil Rights Act of 1964
• Executive Order 11246
• Age Discrimination in Employment Act of 1967
• Education Amendments of 1972
  • Title IX
• Rehabilitation Act of 1973
• Vietnam Era Veterans' Readjustment Assistance Act of 1974
• Age Discrimination Act of 1975
• Americans with Disabilities Act of 1990
• Genetic Information Nondiscrimination Act of 2008

Constitutional basis

The United States Constitution does not directly address employment discrimination, but its prohibitions on discrimination by the federal government have been held to protect federal government employees.

The Fifth and Fourteenth Amendments to the United States Constitution limit the power of the federal and state governments to discriminate. The Fifth Amendment has an explicit requirement that the federal government does not deprive individuals of "life, liberty, or property", without due process of the law. It also contains an implicit guarantee that the Fourteenth Amendment explicitly prohibits states from violating an individual's rights of due process and equal protection. In the employment context, these Constitutional provisions would limit the right of the state and federal governments to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group (such as a race or sex). Due process protection requires that government employees have a fair procedural process before they are terminated if the termination is related to a "liberty" (such as the right to free speech) or property interest. As both Due Process and Equal Protection Clauses are passive, the clause that empowers Congress to pass anti-discrimination bills (so they are not unconstitutional under Tenth Amendment) is Section 5 of Fourteenth Amendment.

Employment discrimination or harassment in the private sector is not unconstitutional because Federal and most State Constitutions do not expressly give their respective government the power to enact civil rights laws that apply to the private sector. The Federal government's authority to regulate a private business, including civil rights laws, stems from their power to regulate all commerce between the States. Some State Constitutions do expressly afford some protection from public and private employment discrimination, such as Article I of the California Constitution. However, most State Constitutions only address discriminatory treatment by the government, including a public employer.

Absent of a provision in a State Constitution, State civil rights laws that regulate the private sector are generally Constitutional under the "police powers" doctrine or the power of a State to enact laws designed to protect public health, safety and morals. All States must adhere to the Federal Civil Rights laws, but States may enact civil rights laws that offer additional employment protection.

For example, some State civil rights laws offer protection from employment discrimination on the basis of political affiliation, even though such forms of discrimination are not yet covered in federal civil rights laws.

History of federal laws

Federal law governing employment discrimination has developed over time.

The Equal Pay Act amended the Fair Labor Standards Act in 1963. It is enforced by the Wage and Hour Division of the Department of Labor.  The Equal Pay Act prohibits employers and unions from paying different wages based on sex. It does not prohibit other discriminatory practices in hiring. It provides that where workers perform equal work in the corner requiring "equal skill, effort, and responsibility and performed under similar working conditions," they should be provided equal pay. The Fair Labor Standards Act applies to employers engaged in some aspect of interstate commerce, or all of an employer's workers if the enterprise is engaged as a whole in a significant amount of interstate commerce.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in many more aspects of the employment relationship. "Title VII created the Equal Employment Opportunity Commission (EEOC) to administer the act".  It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. Title VII prohibits discrimination based on race, color, religion, sex or national origin. It makes it illegal for employers to discriminate based upon protected characteristics regarding terms, conditions, and privileges of employment. Employment agencies may not discriminate when hiring or referring applicants, and labor organizations are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin. The Pregnancy Discrimination Act amended Title VII in 1978, specifying that unlawful sex discrimination includes discrimination based on pregnancy, childbirth, and related medical conditions. A related statute, the Family and Medical Leave Act, sets requirements governing leave for pregnancy and pregnancy-related conditions.

Executive Order 11246 in 1965 "prohibits discrimination by federal contractors and subcontractors on account of race, color, religion, sex, or national origin [and] requires affirmative action by federal contractors".

The Age Discrimination in Employment Act (ADEA), enacted in 1968 and amended in 1978 and 1986, prohibits employers from discriminating on the basis of age. The prohibited practices are nearly identical to those outlined in Title VII, except that the ADEA protects workers in firms with 20 or more workers rather than 15 or more. An employee is protected from discrimination based on age if he or she is over 40. Since 1978, the ADEA has phased out and prohibited mandatory retirement, except for high-powered decision-making positions (that also provide large pensions). The ADEA contains explicit guidelines for benefit, pension and retirement plans. Though ADEA is the center of most discussion of age discrimination legislation, there is a longer history starting with the abolishment of "maximum ages of entry into employment in 1956" by the United States Civil Service Commission. Then in 1964, Executive Order 11141 "established a policy against age discrimination among federal contractors".

The Rehabilitation Act of 1973 prohibits employment discrimination on the basis of disability by the federal government, federal contractors with contracts of more than $10,000, and programs receiving federal financial assistance. It requires affirmative action as well as non-discrimination. Section 504 requires reasonable accommodation, and Section 508 requires that electronic and information technology be accessible to disabled employees.

The Black Lung Benefits Act of 1972 prohibits discrimination by mine operators against miners who suffer from "black lung disease" (pneumoconiosis).

The Vietnam Era Readjustment Act of 1974 "requires affirmative action for disabled and Vietnam era veterans by federal contractors".

The Bankruptcy Reform Act of 1978 prohibits employment discrimination on the basis of bankruptcy or bad debts.

The Immigration Reform and Control Act of 1986 prohibits employers with more than three employees from discriminating against anyone (except an unauthorized immigrant) on the basis of national origin or citizenship status.

The Americans with Disabilities Act of 1990 (ADA) was enacted to eliminate discriminatory barriers against qualified individuals with disabilities, individuals with a record of a disability, or individuals who are regarded as having a disability. It prohibits discrimination based on real or perceived physical or mental disabilities. It also requires employers to provide reasonable accommodations to employees who need them because of a disability to apply for a job, perform the essential functions of a job, or enjoy the benefits and privileges of employment, unless the employer can show that undue hardship will result. There are strict limitations on when an employer can ask disability-related questions or require medical examinations, and all medical information must be treated as confidential. A disability is defined under the ADA as a mental or physical health condition that "substantially limits one or more major life activities."

The Nineteenth Century Civil Rights Acts, amended in 1993, ensure all persons equal rights under the law and outline the damages available to complainants in actions brought under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the 1973 Rehabilitation Act.

The Genetic Information Nondiscrimination Act of 2008 bars employers from using individuals' genetic information when making hiring, firing, job placement, or promotion decisions.

The proposed US Equality Act of 2015 would ban discrimination on the basis of sexual orientation or gender identity. As of June 2018, 28 US states do not explicitly include sexual orientation and 29 US states do not explicitly include gender identity within anti-discrimination statutes.

LGBT employment discrimination

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation or gender identity. This is encompassed by the law's prohibition of employment discrimination on the basis of sex. Prior to the landmark cases Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (2020), employment protections for LGBT people were patchwork; several states and localities explicitly prohibit harassment and bias in employment decisions on the basis of sexual orientation and/or gender identity, although some only cover public employees. Prior to the Bostock decision, the Equal Employment Opportunity Commission (EEOC) interpreted Title VII to cover LGBT employees; the EEOC's determined that transgender employees were protected under Title VII in 2012, and extended the protection to encompass sexual orientation in 2015.

According to Crosby Burns and Jeff Krehely: "Studies show that anywhere from 15 percent to 43 percent of gay people have experienced some form of discrimination and harassment at the workplace. Moreover, a staggering 90 percent of transgender workers report some form of harassment or mistreatment on the job." Many people in the LGBT community have lost their job, including Vandy Beth Glenn, a transgender woman who claims that her boss told her that her presence may make other people feel uncomfortable.

Almost half of the United States also have state-level or municipal-level laws banning the discrimination of gender non-conforming and transgender people in both public and private workplaces. A few more states ban LGBT discrimination in only public workplaces. Some opponents of these laws believe that it would intrude on religious liberty, even though these laws are focused more on discriminatory actions, not beliefs. Courts have also identified that these laws do not infringe free speech or religious liberty.

State law

State statutes also provide extensive protection from employment discrimination. Some laws extend similar protection as provided by the federal acts to employers who are not covered by those statutes. Other statutes provide protection to groups not covered by the federal acts. Some state laws provide greater protection to employees of the state or of state contractors.

Government employees

Employees of federal and state governments have additional protections against employment discrimination.

The Civil Service Reform Act of 1978 prohibits discrimination in federal employment on the basis of conduct that does not affect job performance. The Office of Personnel Management has interpreted this as prohibiting discrimination on the basis of sexual orientation. In June 2009, it was announced that the interpretation would be expanded to include gender identity.

Exceptions

Bona fide occupational qualifications

Main article: Bona fide occupational qualifications

Employers are generally allowed to consider characteristics that would otherwise be discriminatory if they are bona fide occupational qualifications (BFOQ). For example, a manufacturer of men's clothing may lawfully advertise for male models.

Religious employment discrimination

“Religious discrimination is treating individuals differently in their employment because of their religion, their religious beliefs and practices, and/or their request for accommodation (a change in a workplace rule or policy) of their religious beliefs and practices. It also includes treating individuals differently in their employment because of their lack of religious belief or practice” (Workplace Fairness). According to The U.S. Equal Employment Opportunity Commission, employers are prohibited from refusing to hire an individual based on their religion- alike race, sex, age, and disability. If an employee believes that they have experienced religious discrimination, they should address this to the alleged offender. On the other hand, employees are protected by the law for reporting job discrimination and are able to file charges with the EEOC. Some locations in the U.S. now have clauses that ban discrimination against atheists. The courts and laws of the United States give certain exemptions in these laws to businesses or institutions that are religious or religiously-affiliated, however, to varying degrees in different locations, depending on the setting and the context; some of these have been upheld and others reversed over time.

Members of the Communist Party

Title VII of the Civil Rights Act of 1964 explicitly permits discrimination against members of the Communist Party.

Military

The military has faced criticism for prohibiting women from serving in combat roles. In 2016, however, the law was amended to allow them to serve. In the article posted on the PBS website, Henry Louis Gates Jr. writes about the way in which black men were treated in the military during the 1940s. According to Gates, during that time the whites gave the African Americans a chance to prove themselves as Americans by having them participate in the war. The National Geographic website states, however, that when black soldiers joined the Navy, they were only allowed to work as servants; their participation was limited to the roles of mess attendants, stewards, and cooks. Even when African Americans wanted to defend the country they lived in, they were denied the power to do so.

Unintentional discrimination

Main article: Adverse impact

Employment practices that do not directly discriminate against a protected category may still be illegal if they produce a disparate impact on members of a protected group. Title VII of the Civil Rights Act of 1964 prohibits employment practices that have a discriminatory impact, unless they are related to job performance.

The Act requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and, if, as here, an employment practice that operates to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding the employer's lack of discriminatory intent.

Height and weight requirements have been identified by the EEOC as having a disparate impact on national origin minorities.

However, when defending against a disparate impact claim that alleges age discrimination, an employer does not need to demonstrate necessity; rather, it must simply show that its practice is reasonable.

Enforcing entities

The Equal Employment Opportunity Commission (EEOC) interprets and enforces the Equal Pay Act, Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Title I and V of the Americans With Disabilities Act, Sections 501 and 505 of the Rehabilitation Act, and the Civil Rights Act of 1991. The Commission was established by the Civil Rights Act of 1964. Its enforcement provisions are contained in section 2000e-5 of Title 42, and its regulations and guidelines are contained in Title 29 of the Code of Federal Regulations, part 1614. Persons wishing to file suit under Title VII and/or the ADA must exhaust their administrative remedies by filing an administrative complaint with the EEOC prior to filing their lawsuit in court.

The Office of Federal Contract Compliance Programs enforces Section 503 of the Rehabilitation Act, which prohibits discrimination against qualified individuals with disabilities by federal contractors and subcontractors.

Under Section 504 of the Rehabilitation Act, each agency has and enforces its own regulations that apply to its own programs and to any entities that receive financial assistance.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b, which prohibits discrimination based on citizenship status or national origin.

State Fair Employment Practices (FEP) offices take the role of the EEOC in administering state statutes.

Equality of outcome

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Equality_of_outcome 

 

In the novel Alice's Adventures in Wonderland, the Dodo tells Alice that "everybody has won and all must have prizes". One analyst suggested that this quote describes the controversial concept of equality of outcome.

Equality of outcome, equality of condition, or equality of results is a political concept which is central to some political ideologies and is used in some political discourse, often in contrast to the term equality of opportunity. It describes a state in which all people have approximately the same material wealth and income, or in which the general economic conditions of everyone's lives are alike.

Achieving equal results generally entails reducing or eliminating material inequalities between individuals or households in a society and usually involves a transfer of income or wealth from wealthier to poorer individuals, or adopting other measures to promote equality of condition.

One account in The Journal of Political Philosophy suggested that the term meant "equalising where people end up rather than where or how they begin", but described this sense of the term as "simplistic" since it failed to identify what was supposed to be made equal.

In politics

Political philosophy

The ancient Greek philosophers Plato and Aristotle debated economic equality. Painting by Raffaello Sanzio (1509)

According to professor of politics Ed Rooksby, the concept of equality of outcome is an important one in disputes between differing political positions, since equality has overall been seen as positive and an important concept which is "deeply embedded in the fabric of modern politics". Conflict between so-called haves and have-nots has happened throughout human civilization and was a focus of philosophers such as Aristotle in his treatise Politics. In political philosophy, there are differing views whether equal outcomes are beneficial or not. One view is that there is a moral basis for equality of outcome, but that means to achieve such an outcome can be malevolent.

Writing in the journal Foreign Affairs, analyst George Packer argued that "inequality undermines democracy" in the United States partially because it "hardens society into a class system, imprisoning people in the circumstances of their birth". Packer elaborated that inequality "corrodes trust among fellow citizens" and compared it to an "odorless gas which pervades every corner" of the nation.

In his 1987 book The Passion for Equality, analyst Kenneth Cauthen suggested that there were moral underpinnings for having equal outcomes because there is a common good—which people both contribute to and receive benefits from—and therefore should be enjoyed in common. Cauthen argued that this was a fundamental basis for both equality of opportunity as well as equality of outcome.

One view is that mechanisms to achieve equal outcomes—to take a society and with unequal socioeconomic levels and force it to equal outcomes—are fraught with moral as well as practical problems since they often involve political coercion to compel the transfer.

According to one report in Britain, outcomes matter because unequal outcomes in terms of personal wealth had a strong impact on average life expectancy, such that wealthier people tended to live seven years longer than poorer people and that egalitarian nations tended to have fewer problems with societal issues such as mental illness, violence, teenage pregnancy and other social problems. Authors of the book The Spirit Level contended that "more equal societies almost always do better" on other measures and as a result striving for equal outcomes can have overall beneficial effects for everybody.

In his A Theory of Justice (1971), philosopher John Rawls developed a "second principle of justice" that economic and social inequalities can only be justified if they benefit the most disadvantaged members of society. Rawls further claims that all economically and socially privileged positions must be open to all people equally. Rawls argues that the inequality between a doctor's salary and a grocery clerk's is only acceptable if this is the only way to encourage the training of sufficient numbers of doctors, preventing an unacceptable decline in the availability of medical care (which would therefore disadvantage everyone).

Economist Paul Krugman in 2008

Writing in The New York Times, economist Paul Krugman agreed with Rawls' position in which both equality of opportunity and equality of outcome were linked and suggested that "we should try to create the society each of us would want if we didn't know in advance who we'd be". Krugman favored a society in which hard-working and talented people can get rewarded for their efforts, but in which there was a "social safety net" created by taxes to help the less fortunate. Many have suggested that a society promoting equality of opportunity will resultantly see a higher degree of equality in outcome and that equalizing a person's socioeconomic starting conditions will result in a meritocratic distribution of economic influence. Such is the basis for left-leaning market-based ideologies such as distributism, ordoliberalism, the Social market economy and some forms of social democracy.

In The Guardian, commentator Julian Glover writes that equality challenges both left-leaning and right-leaning positions and suggests that the task of left-leaning advocates is to "understand the impossibility and undesirability of equality" while the task for right-leaning advocates was to "realise that a divided and hierarchical society cannot – in the best sense of that word – be fair".

Conservatives and classical liberals criticize attempts to try to fight poverty by redistributive methods as ineffective, arguing that more serious cultural and behavioral problems lock poor people into poverty. Sometimes right-leaning positions have been criticized by left-leaning positions for oversimplifying what is meant by the term equality of outcome and for construing outcomes strictly to mean precisely equal amounts for everybody. In The Guardian, commentator Ed Rooksby criticized the right's tendency to oversimplify and suggested that serious left-leaning advocates would not construe equality to mean "absolute equality of everything". Rooksby wrote that Marx favored the position described in the phrase "from each according to his ability, to each according to his need" and argued that this did not imply strict equality of things, but that it meant that people required "different things in different proportions in order to flourish".

American libertarians and advocates of economic liberalism such as Friedrich Hayek and Milton Friedman tend to see equality of outcome negatively and argue that any effort to cause equal outcomes would necessarily and unfortunately involve coercion by government. Friedman wrote that striving for equality of outcome leaves most people "without equality and without opportunity".

One left-leaning position is that it is simplistic to define equality in strict outcomes since questions such as what is being equalized as well as huge differences in preferences and tastes and needs is considerable, therefore they ask: exactly what is being equalized? Author Mark Penn wrote that "the fundamental principle of centrism in the 1990s was that people would neither be left to fend for themselves nor guaranteed equality of outcome – they would be given the tools they needed to achieve the American dream if they worked hard". On the topic of fairness, Glover writes that fairness "compels no action", comparing it to an "atmospheric ideal, an invisible gas, a miasma" and to use an expression by Winston Churchill, a "happy thought".

Bernard Shaw was one of the few socialist theorists to advocate complete economic equality of outcome right at the beginning of World War One. The vast majority of socialists view an ideal economy as one where remuneration is at least somewhat proportional to the degree of effort and personal sacrifice expended by individuals in the productive process. This latter concept was expressed by Karl Marx's famous maxim: "To each according to his contribution".

Conflation with Marxism, socialism and communism

...the real content of the proletarian demand for equality is the demand for the abolition of classes. Any demand for equality which goes beyond that, of necessity passes into absurdity.

— Frederick Engels, "Anti-Dühring" (1877)

The German economist and philosopher Karl Marx and his collaborator Frederick Engels are sometimes mistakenly characterized as egalitarians, and the economic systems of socialism and communism are sometimes misconstrued as being based on equality of outcome. In reality both Marx and Engels eschewed the entire concept of equality as an abstract and idealistic bourgeois aspiration, focusing their analysis on more concrete issues such as the laws of motion of capitalism and exploitation based on economic and materialist logic. Marx renounced theorizing on moral concepts and refrained from advocating principles of justice. Marx's views on equality were informed by his analysis of the development of the productive forces in society.

Socialism is based on a principle of distribution whereby individuals receive compensation proportional to the amount of energy and labor they contribute to production ("To each according to his contribution"), which by definition precludes equal outcomes in income distribution. In Marxist theory, communism is based on a principle whereby access to goods and services is based on free and open access (often referred to as distribution based on one's needs); Marx stressed free access to the articles of consumption. Hence the "equality" in a communist society is not about total equality or equality of outcome, but about equal and free access to the articles of consumption. Marx argued that free access to consumption would enable individuals to overcome alienation.

Perhaps the most insistent proponent of equality of outcome in modern political discourse was Fabian socialist, political thinker and dramatist Bernard Shaw (1856–1950). As opposed to Marxists, Shaw would have socialists place more emphasis on distribution rather than production. He developed his ideas on economic equality (and its implications for social, democratic, legal, military and gender concerns) in lectures and articles in the ten years following the writing of his 1905 play on poverty and power, Major Barbara, at the same time as his Fabian colleague Beatrice Webb as primary author of the 1909 Minority Report on the Poor Law, along with her husband Sidney Webb, was proposing to abolish poverty in industrial societies by introducing what we now call the welfare state. In the 1907 preface to Major Barbara, Shaw was probably the first to argue for what he called "Universal Pensions for Life", now known as universal incomes. Following major lectures on equality in 1910 and 1913, he gave his fullest exposition of economic equality in a series of six highly publicized Fabian public lectures at the end of 1914, “On Redistribution of Income”—a phrase, as he put it at the time, that he wanted to get into circulation. Although largely unacknowledged, most of the terms of the equality debate since (such as, for example, John Rawls and many recent writers on inequality) are as outlined in some detail in Shaw's 1914 series of lectures, where he argued for a gradual incremental process towards equal incomes, mostly by levelling-up from the bottom through union activity and labor laws, minimum and basic incomes as well as by using such mechanisms as income and wealth (inheritance) taxes to prevent incomes rising at the top. In the end, the goal would have been achieved not at absolute equality, but when any remaining income differences would not yield any significant social difference. Like the later Fabian, W. H. Tawney, who further developed the equality debate, Shaw considered equality of opportunity as virtually meaningless without economic equality. Shaw later expanded his pre-World War One work on equality into his 1928 political treatise, The Intelligent Woman’s Guide to Socialism and Capitalism.

Related concepts

Equality of outcome is often compared to related concepts of equality, particularly with equality of opportunity. Generally, most senses of the concept of equality are controversial and are seen differently by people having different political perspectives, but of all of the terms relating to equality, equality of outcome is the most controversial and contentious.

Equality of opportunity generally describes fair competition for important jobs and positions such that contenders have equal chances to win such positions, and applicants are not judged or hampered by unfair or arbitrary discrimination. It entails the "elimination of arbitrary discrimination in the process of selection". The term is usually applied in workplace situations, but has been applied in other areas as well such as housing, lending, and voting rights. The essence is that job seekers have "an equal chance to compete within the framework of goals and the structure of rules established", according to one view. It is generally seen as a procedural value of fair treatment by the rules.

Equality of autonomy is a relatively new concept, a sort of hybrid notion that has been developed by philosopher Amartya Sen and can be thought of as "the ability and means to choose our life course should be spread as equally as possible across society". It is an equal shot at empowerment or a chance to develop up to his or her potential rather than equal goods or equal chances. In a teaching guide, equality of autonomy was explained as "equality in the degree of empowerment people have to make decisions affecting their lives, how much choice and control they have given their circumstances". Sen's approach requires "active intervention of institutions like the state into people's lives" but with an aim towards "fostering of people's self-creation rather than their living conditions". Sen argued that "the ability to convert incomes into opportunities is affected by a multiplicity of individual and social differences that mean some people will need more than others to achieve the same range of capabilities".

Equality of process is related to the general notion of fair treatment and can be thought of as "dealing with inequalities in treatment through discrimination by other individuals and groups, or by institutions and systems, including not being treated with dignity and respect", according to one definition.

Equality of perception is an uncommonly used term meaning that "person should be perceived as being of equal worth".

Outcome versus opportunity

Equality of outcome and equality of opportunity have been contrasted to a great extent. When evaluated in a simple context, the more preferred term in contemporary political discourse is equality of opportunity (or, meaning the same thing, the common variant "equal opportunities"), which the public as well as individual commentators see as the nicer or more "well-mannered" of the two terms. A mainstream political view is that the comparison of the two terms is valid, but that they are somewhat mutually exclusive in the sense that striving for either type of equality would require sacrificing the other to an extent and that achieving equality of opportunity necessarily brings about "certain inequalities of outcome". For example, striving for equal outcomes might require discriminating between groups to achieve these outcomes; or striving for equal opportunities in some types of treatment might lead to unequal results. Equality seeking policies may also have a redistributive focus.

However, the two concepts are not always cleanly contrasted since the notion of equality is complex. Some analysts see the two concepts not as polar opposites but as highly related such that they can not be understood without considering the other term.

Lamp assembly factory diagram

In a lamp assembly factory, for example, equality of outcome might mean that workers are all paid equally regardless of how many lamps of acceptable quality they make, which also implies that the workers cannot be fired for producing too few lamps of acceptable quality. This can be contrasted with a payment system such as piece work, which requires that every worker is paid a fixed amount of money per lamp of acceptable quality that the worker makes.

In contemporary political discourse, of the two concepts equality of outcome has sometimes been criticized as the "politics of envy" and is often seen as more "controversial" than equality of opportunity. One wrote that "equality of opportunity is then set up as the mild-mannered alternative to the craziness of outcome equality". One theorist suggested that an over-emphasis on either type of equality can "come into conflict with individual freedom and merit".

Critics of equality of opportunity note that while it is relatively easier to deal with unfairness for people with different races or genders, it is much harder to deal with social class since "one can never entirely extract people from their ancestry and upbringing". As a result, critics contend that efforts to bring fairness by equal opportunity are stymied by the difficulty of people having differing starting points at the beginning of the socio-economic competition. A person born into an upper-middle-class family will have greater advantages by the mere fact of birth than a person born into poverty.

One newspaper account criticized discussion by politicians on the subject of equality as "weasely" and thought that the term was politically correct and vague. Furthermore, when comparing equality of opportunity with equality of outcome, the sense was that the latter type was "worse" for society. Equality of outcome may be incorporated into a philosophy that ultimately seeks equality of opportunity. Moving towards a higher equality of outcome (albeit not perfectly equal) can lead to an environment more adept at providing equality of opportunity by eliminating conditions that restrict the possibility for members of society to fulfill their potential. For example, a child born in a poor, dangerous neighborhood with poor schools and little access to healthcare may be significantly disadvantaged in his attempts to maximize use of talents, no matter how fine his work ethic. Thus even proponents of meritocracy may promote some level of equality of outcome in order to create a society capable of truly providing equality of opportunity.

While outcomes can usually be measured with a great degree of precision, it is much more difficult to measure the intangible nature of opportunities. That is one reason why many proponents of equal opportunity use measures of equality of outcome to judge success. Analyst Anne Phillips argued that the proper way to assess the effectiveness of the hard-to-measure concept of equality of opportunity is by the extent of the equality of outcome. Nevertheless, she described a single criterion of equality of outcome as problematic—the measure of "preference satisfaction" was "ideologically loaded" while other measures such as income or wealth were inadequate and she advocated an approach which combined data about resources, occupations and roles.

To the extent that inequalities can be passed from one generation to another through tangible gifts and wealth inheritance, some claim that equality of opportunity for children cannot be achieved without equality of outcome for parents. Moreover, access to social institutions is affected by equality of outcome and it is further claimed that rigging equality of outcome can be a way to prevent co-option of non-economic institutions important to social control and policy formation, such as the legal system, media or the electoral process, by powerful individuals or coalitions of wealthy people.

Purportedly, greater equality of outcome is likely to reduce relative poverty, leading to a more cohesive society. However, if taken to an extreme it may lead to greater absolute poverty, if it negatively affects a country's GDP by damaging workers' sense of work ethic by destroying incentives to work harder. Critics of equality of outcome believe that it is more important to raise the standard of living of the poorest in absolute terms. Some critics additionally disagree with the concept of equality of outcome on philosophical grounds. Still others note that poor people of low social status often have a drive, hunger and ambition which ultimately lets them achieve better economic and social outcomes than their initially more advantaged rivals.

A related argument that is often encountered in education, especially in the debates on the grammar school in the United Kingdom and in the debates on gifted education in various countries, says that people by nature have differing levels of ability and initiative which result in some achieving better outcomes than others and it is therefore impossible to ensure equality of outcome without imposing inequality of opportunity.