Generators and transporters are subject to record-keeping, reporting, and labeling require- ments, with transporters also being subject to the strictures of the Hazardous Materials Transportation Act. Sites for underground storage tanks containing petroleum products, pesticides, and other hazardous products are governed by RCRA provisions that enable the detection, correction, and prevention of leaks. Disposal sites are regulated by a permit system in which the EPA is given broad powers to inspect a site, issue compliance orders, institute civil actions against violators, and seek injunc- tive relief. Criminal penalties may also be imposed for violation of the permit system. In 1984 Congress amended the RCRA, shifting the focus of hazardous waste manage- ment from safe land disposal to treatment alternatives. Under the 1984 amendments, land disposal is now the last alternative, and is permitted only when the waste is pretreated to meet standards issued by the EPA, or when the EPA determines “to a reasonable degree of certainty that there will be no migration of hazardous constituents from the disposal unit … for as long as the wastes remain hazardous.” When land disposal is deemed permissible, new landfills must use double liners and groundwater monitoring systems, unless the EPA finds that an alternative design or operat- ing practice would be equally effective in preventing the migration of hazardous waste. In addition to providing for EPA regulatio n and enforcement actions, the RCRA authorizes private citizens to institute LEGAL PROCEEDINGS against violators of its provisions. Comprehensive Environmental Response, Compensation, and Liability Act The Compre- hensive Environmental Response, Compensa- tion, and Liability Act (CERCLA), also known as the Superfund, was passed in 1980 to clean up hazardous waste disposal sites (42 U.S.C.A. §§ 9601 et seq.). The act consists of four elements. First, CERCLA establishes a system for gathering information to enable federal and state governments to characterize chemical dump sites and develop priorities for response actions. The administrator of the EPA is required to issue regulations designating which chemicals would be hazardous to the public if released into the environment. The owners and operators of hazardous waste storage, treat- ment, and disposal sites are required to notify the EPA of the amount and types of hazardous substances on-site, and of any known, sus- pected, or likely releases into the environment. Based on this information, the EPA develops a national priorities list (NPL), which ranks the nation’s hazardous waste sites in order of importance. Second, CERCLA establishes federal author- ity to respond when hazardous waste has been discharged into the environment. The president is authorized to provide removal and remedial actions consistent with a national contingency plan (NCP), which establishes procedures for cleaning up such discharges. Removal actions are short-term responses to emergencies, whereas remedial actions are intended to offer long-term solutions. The federal government’s response actions at sites appearing on the NPL are limited to cases in which the responsible parties cannot be found or fail to take the necessary actions. Third, CERCLA creates a class of persons who are potentially responsible parties (PRPs), who will be held liable for cleanup and restitution costs. The act provides that all generators and transporters of hazardous materials, and every owner and operator of a disposal or treatment facility, shall be liable for all removal and remedial costs incurred by the state and federal government not inconsistent with the NCP, as well as any other necessary response costs such as consulting fees or attorney fees in certain situations. In each case, CERCLA imposes strict liability upon the responsible party, independent of traditional notions of culpability such as intent and recklessness. Fourth, the act creates the multi-billion- dollar Hazardous Substance Trust Fund to pay for removal and remedial actions. Money for the fund is raised through federal appropriation and through taxes paid by some disposal site owners and operators. The fund cannot be used to remedy environmental injuries from hazard- ous waste that “occurred wholly before the enactment of this Act.” Private claims may be made against the fund only if the PRPs cannot be found or are in solvent. The stickiest legal questions arise when courts assign liability for cleanup. For examp le, lending institutions regularly foreclose, take title, and resell property without any knowledge or indication that the property was previously used as a hazardous waste site. Such institutions GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENVIRONMENTAL LAW 199 clearly fall within CERCLA’s definition of a landowner, yet they assume no traditional responsibilities of land ownership. Early CERCLA cases imposed liability upon lending institutions in these circumstances, even when the costs of cleanup exceeded the value of the property (see United States v.Maryland Bank& Trust Co., 632 F. Supp. 573 [D. Md. 1986]). Although Congress later amended CERCLA to protect such “innocent landowners,” courts still impose liability if the lending institution “had reason to know” of the hazardous waste disposal or failed to make “all appropriate inquiry” into the previous ownership before acquiring the property. Liability under CERCLA is JOINT AND SEVERAL LIABILITY , which means that once it is established among a group of defendants, any one of the defendants can be held responsible for the entire cost of cleanup. Although defendants are permitted to offer evidence that they are responsi- ble for only part of an environmental injury, the commingling of chemicals at dump sites makes such a defense difficult to prove. Defendants may also seek reimbursement from codefendants who were primarily responsible for a hazardous discharge, but this relief proves futile when a responsible codefendant has disappeared or filed BANKRUPTCY. Thus, wealthy landowners are often left paying the costs of the CERCLA cleanup. Preservation of Wilderness and Wildlife NEPA requires the government to “fulfill the res- ponsibilities of each generation as trustee for succeeding generations” to ensure “safe, healthful, productive and aesthetically pleasing surroundings” and protect “important aspects” of the “national heritage.” The federal government has three land preservation categories: the National Park System, the National Wilderness Preservation System, and the National Wildlife Refuge. National parks include forested areas, recrea- tional areas, and places of historical importance. Wilderness preserves are not intended for use, and are primarily found in Alaska and the Florida Keys. A wildlife refuge is a sanctuary for fish and game. Federal legislation protects each of these three areas from spoliation, degrada- tion, and misuse. In addition to establishing sanctuaries and refuges for wilderness and wildlife, Congress has passed the ENDANGERED SPECIES ACT, 16 U.S.C.A. §§ 1531 et seq., which charges the DEPARTMENT OF THE INTERIOR with the protection of animals teetering on the brink of extinction. The U.S. Supreme Court has interpreted this act very broadly, as reflected by the snail darter case ( TENNESSEE VALLEY AUTHORITY v. Hill, 437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d 117 [1978]). The snail darter, a plain-looking, three- inch-long fish, was an endangered species inhabiting the rivers of Tennessee when the Tennessee Valley Authority began the construc- tion of a $100 million dam that would have destroyed its habitat. After noting that Congress deemed all species to have incalculable value and finding that the Endangered Species Act “admit[ted] of no exception[s],” the Supreme Court held that the dam could not be completed. FURTHER READINGS Gerrard, Michael B., ed. 2009. The Law of Environmental Justice: Theories and Procedures to Address Dispropor- tionate Risks. 2d ed. Chicago: American Bar Association. Rodgers, William H., Jr. 1994. Hornbook on Environmental Law. Eagan, MN: West. Stern, Carole, John A. McKinney Jr., and David B. Graham, eds. 2000. CERCLA Enforcement: A Practitioner’s Compendium of Essential EPA Guidance and Policy Documents. Chicago: American Bar Association. CROSS REFERENCE Tobacco; Water Rights. ENVIRONMENTAL PROTECTION AGENCY The purpose of the ENVIRONMENTAL PROTECTION AGENCY (EPA) is to protect and enhance the environment in the present and for future generations to the fullest extent possible under the laws enacted by Congress. The mission of the agency is to control and abate pollution in the areas of air, water, solid waste, noise, radiation, and toxic substances. The mandate of the EPA is to mount an integrated, coordinated attack on environmental pollution in cooperation with state and local governments. Air, Noise, and Radiation Programs The air quality activities of the agency include development of national programs, technical policies, and regulations for air pollution control; development of national standards for air quality; emission standards for new stationary sources and emission standards for hazardous pollutants; technical direction, support, and evaluation of regional air quality activities; and provision of training in the field of air pollution control. Related activities include study, identification, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 200 ENVIRONMENTAL PROTECTION AGENCY and regulation of noise sources and control methods; technical assistance to states and agencies having radiation protection programs; and a national surveillance and inspection program for measuring radiation levels in the environment. Water and Waste Management Programs The water quality activities of the EPA represent a coordinated effort to restore the waters of the nation. The functions of this program include development of national programs, technical policies, and regulations for water pollution control and water supply; water quality standards and effluent guidelines development; technical direction, support, and evaluation of regional water activities; development of programs for technical assistance and technology transfer; and provision of training in the field of water quality. Solid Waste Emergency Response Programs The Office of Solid Waste and Emergency Response provides policy, guidance, and direc- tion for the agency’s solid waste and emergency response programs. The functions of these programs include development of program policy; development of hazardous waste stan- dards and regulations; enforcement of applicable laws and regulations; guidelines and standards for land disposal of hazardous wastes; analyses on the recovery of useful energy from solid waste; and provision of technical assistance in the development, management, and operation of waste management activities. Legal and Enforcement Counsel The Office of the Assistant Administrator for Enforcement has the following functions: (1) provides policy direction to enforcement activi- ties in air, water, toxic substances, hazardous and solid waste management, radiation, and noise control programs; (2) plans and coordinates enforcement conferences, public hearings, and other LEGAL PROCEEDINGS; and (3) engages in other activities related to enforcement of standards to protect the environment of the nation. Pesticides and Toxic Substances Programs The Office of Assistant Administrator for Toxic Substances is responsible for development of national strategies for the control of toxic substances; criteria for assessing chemical sub- stances, standards for test protocols for chemicals, rules and procedures for industry reporting, and regulations for the control of substances deemed to be hazardous to man or the environment; and evaluation and assessment of the impact of new chemicals and chemicals with new uses to determine the hazard and, if needed, develop appropriate restrictions. It also coordi- nates with the activities of other agencies under the Toxic Substances Control Act (15 U.S.C. 2601 et seq. [1976]) for the assessment and control of toxic substances. Additional activities include control and regulation of pesticides and reduction in their use to ensure human safety and protection of environmental quality; establish- ment of tolerance levels for pesticides that occur in or on food; monitoring of pesticide residue levels in food, humans, and nontarget fish and wildlife and their environments; and investiga- tion of pesticide accidents. Research and Development The Office of the Assistant Administrator for Research and Development is responsible for a national research program in pursuit of tech- nological controls of all forms of pollution. It directly supervises the research activities of the national laboratories of the EPA and gives technical policy direction to those laboratories that support the program responsibilities of the regional offices of the EPA. Close coordination of the various research programs is designed to yield a synthesis of knowledge from the biological, physical, and social sciences that can be interpreted in terms of total human and environmental needs. General functions include management of selected demonstration pro- grams; planning for agency environmental quality monitoring programs, coordination of agency monitoring efforts with those of other federal agencies, the states, and other public bodies; and dissemination of agency research, development, and demonstration results. Major Developments During the late 1990s, the EPA under the administration of President WILLIAM JEFFERSON CLINTON pursued diverse goals with mixed results. One of its most noted efforts involved ambitious enforcement of the CLEAN AIR ACT through the New Source Review (NSR) program, which saw the EPA requiring industries to install new anti- pollution equipment. The administration also sued about fifty power companies for violations. But frequently the agency’s plans met with resistance and litigation from industry. Plaintiffs GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENVIRONMENTAL PROTECTION AGENCY 201 successfully challenged EPA regulatory authority over such matters as setting drinking water targets for chloroform, requiring ethanol mini- mums in reformulated gasoline, and mandating certain regional electric car sales. The Environmental Protection Agency was established in the executive branch as an independent agency pursuant to Reorganization Plan No. 3 of 1970, effective December 2, 1970. The EPA was created to permit coordinated and effective governmental action on behalf of the environment. The EPA endeavors to abate and control pollution systematically, by proper inte- gration of a variety of research, monitoring, standard setting, and enforcement activities. As a complement to its other activities, the EPA coordinates and supports rese arch and antipollu- tion activities by st ate and loc al governments, private and public groups, individuals, and educational institutions. The EPA also re inforces efforts among other federal agencies with respect to the impact of their operations on the environ- ment, and it is specifically charged with publishing its determinat ions w hen t hose hold that a proposal is unsatisfactory from the standpoint of public health or welfare or environmental quality. In all, the EPA is designed to se rve as the advocate of the public for a livable environment. Under President GEORGE W. BUSH, the EPA shifted its approach on some issues. The agency proposed to roll back its predecessor’sair pollution regulations. But the agency backed down after public criticism over its apparent readiness to scuttle standards for arsenic levels in drinking water, and in 2000 it also released data critical of the administration’s laissez-faire policy toward global warming. Moreover, in 2001 the EPA continued to pursue the agency’s decades-old Superfund case against General Electric Co., seeking to have the company pay for a $360 million project to dredge contami- nated sediment from the Hudson River. The Environmental Protection Agency is available online at www.epa.gov (accessed July 18, 2003). FURTHER READINGS Adler, Jonathan. “Courting Trouble at the EPA.” The Washington Times (April 14, 2000). “Bush Rollback of Rules Will Keep Maine Air Dirty.” Portland Press Herald (November 26, 2002). Fagin, Dan. “Turbulent Waters: Battle Rages on Dredging the Hudson.” Newsday (February 24, 2001). Paige, Sean. “Smoldering Sabotage in the EPA Underbrush.” The Washington Times (June 26, 2002). Available online at http://nucnews.net/nucnews/2002nn/0206nn/ 020626nn.htm#620; website home page: http://nucnews. net (accessed July 21, 2009). CROSS REFERENCES Environmental Law; Regulation. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION The EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) is the federal agency charged with eliminating discrimination based on race, color, RELIGION, sex, national origin, disability, or age, in all terms and conditions of employment. The EEOC investigates alleged discrimination through its 50 field offices, makes determina- tions based on gathered evidence, attempts conciliation when discrimination has taken place, and files lawsuits. The EEOC also over- sees compliance and enforcement activities relating to equal employment opportunity among federal employees and applicants, in- cluding discrimination against individuals with disabilities. Complaints under Title VII of the Civil Rights Act of 1964 Title VII of the CIVIL RIGHTS Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin, by private employers, state and local governments, educational institutions with 15 or more employees, the federal government, private and public employment agencies, labor organi- zations, and joint labor-management commit- tees for apprenticeship and training. Charges of title VII violations outside the federal sector must be filed with the EEOC within 180 days of the alleg ed violation or in states with fair employment practices agencies, within 300 days. The EEOC is responsible for notifying the persons charged, within 10 days after receiving a charge. Before investigation, charges must be deferred for 60 days to state or local fair employment practices agencies in localities with a fair employment practices law covering the alleged discrimination. If the agency has been operating less than one year, the charges must be deferred for 120 days. The EEOC was created by title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-4. Title VII was amended by the Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, Mar. 24, 1972, 86 Stat. 103; the Pregnancy GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 202 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Discrimination Act of 1978, Pub. L. No. 95-555, Oct. 31, 1978, 92 Stat. 2076, codified at 42 U.S.C. A. § 2000e(K); and the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071. On July 1, 1979, responsibility for enforcement of the EQUAL PAY ACT OF 1963, 29 U.S.C.A. §§ 201 et seq., and the AGE DISCRIMINATION in Employment Act of 1967, 29 U.S.C.A. §§ 626 et seq., in private industry as well as state and local governments, was transferred from the DEPARTMENT OF LABOR to the EEOC. The Equal Pay Act prohibits gender-based pay differences for substantially equal work requiring equal skill and responsibili- ty; the Age Discrimination Act prohibits em- ployment discrimination against workers or applicants 40 years of age or older. Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.A. §§ 12101 et seq. has been enforced by the EEOC since July 1992. Title I governs private employers, state and local governments, employ- ment agencies, labor organizations, and joint labor-management committees. The ADA pro- hibits employment discrimination against quali- fied individuals with disabilities and requires that employers make reasonable accommodations for these individuals. Under work-sharing agreements between the EEOC and state and local fair employment practices agencies, the EEOC routinely assumes authority over certain charges of discrimination and proceeds with its investigation. If reason- able cause exists to believe that a charge is true, the district, area, or local office uses informal conciliation conferences to try to remedy the unlawful practices. If an acceptable agreement cannot be reached, the case is submitted to the EEOC for possible litigation. If litigation is approved, the EEOC brings suit in federal district court. Under title VII, the attorney general brings suit when a state or local government or political subdivision is involved. If litigation is not approved or if a finding of no reasonable cause is made, the charging party is allowed to sue within 90 days in federal district court. The EEOC may intervene in such actions if the case is of general public interest. Complaints under the Americans with Disabilities Act of 1990 The Americans with Disabilities Act of 1990 incorporates the remedies and procedures contained in title VII of the Civil Rights Act of 1964. Employment discrimination charges based on disability may be filed at any of the EEOC’s field offices. The EEOC investigates and attempts to conciliate the charges using the same procedures as for charges filed under title VII. The litigation procedures under title VII also apply to charges filed under the ADA. The progress in creating a genetic “map” for humans in the 1990s was hailed by scientists who hoped a better understanding of genetic makeup might someday help prevent debilitating diseases including cancer and Alzheimer’sdisease.Along with that promise came the fear that employers might use a person’s genetic information to deny employment. In February 2000 President BILL CLINTON signed EXECUTIVE ORDER 13145, which prohibits federal departments and agencies from using protected genetic information to make hiring decisions. Complaints under the Age Discrimination in Employment Act of 1967 and Equal Pay Act of 1963 The Age Discrimination in Employment Act of 1967 and Equal Pay Act of 1963 cover most employees and job applicants in private industry and in the federal, state, and local governments. An age discrimination charge must be filed with the EEOC within 180 days of the alleged violation, or where the action took place in a state that has an age discrimination law and an authority administering that law, within 300 days of the violation or 30 days after receiving the notice of termination of state proceedings, whichever is earlier. A lawsuit must be filed within two years of the alleged discriminatory act or within three years in cases of a willful violation of the law. Under the Civil Rights Act of 1991, a lawsuit must be filed within 90 days of the plaintiff’s receipt of a notice of final action. The EEOC first attempts to end the alleged unlawful practice through informal conciliation. If con- ciliation fails, the EEOC may sue. Individuals may sue on their own behalf 90 days after filing a charge with the EEOC and the appropriate state agency. If the EEOC takes legal action, an individual co vered by the lawsuit may not file a private action. A lawsuit under the Equal Pay Act of 1963 may be filed by the EEOC or by the complain- ant. There are no prerequisites for bringing a private action under this law. Wages may be recovered for a period of up to two years prior GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 203 to the filing of a suit, except in a case of willful violation, for which three years’ back pay may be recovered. The name of the individual filing the complaint may be kept confidential at the administrative level. Complaints against the Federal Government Federal employees or job applicants who want to file complaints of job discrimination based on race, color, national origin, sex, religion, age, or physical or mental disability must first consult an equal employment opportunity counselor with the employees’ or applicants’ agency within 45 days of the alleged discriminatory action. If the complaint cannot be resolved informally, the person may file a formal complaint within 15 days of receiving a notice of the right to file a complaint. An accepted complaint is investigated by the agency, and the complainant has a right to a hearing before an EEOC administrative judge before the agency issues its final decision. An individual who wishes to file a complaint under the Equal Pay Act of 1963 must follow these procedures. An individual may also elect to file suit under the Equal Pay Act of 1963 without prior resort to the agency or to the EEOC. A complaint under the Age Discrimination in Employment Act of 1967, against a federal agency or department, must be filed with the head of the agency, director of equal employ- ment opportunity, head of an EEOC field installation, or other designated official. Federal employees may bypass the administrative com- plaint process and file a CIVIL ACTION directly in a federal district court, by first notifying the EEOC within 180 days of the alleged discriminatory act and then waiting 30 calendar days be fore filing suit. A federal employee may appeal a decision of an agency, an arbitrator, or the Federal Labor Relations Authority, with the EEOC’s Office of Federal Operations, at any time up to 30 calendar days after receiving the agency notice of final decision. A petition for review of a MERIT SYSTEMS PROTECTION BOARD decision may be filed within 30 days of the date that the board decision becomes final. A request for reconsid- eration of any EEOC decision must be made in writing within 30 days of receiving the decision. Other Activities The EEOC publishes data on the employment status of women and members of minority groups. Through six employment surveys covering private employers, apprenticeship pro- grams, labor unions, state and local govern- ments, elementary and secondary schools, and colleges and universities, the EEOC tabulates data on employees’ ethnic, racial, and gender makeup. The EEOC distributes this information to various federal agencies and makes it available for public use. Eliminating a large backlog of discrimina- tion charges has been a continuing problem for the EEOC, but efforts to streamline have been effective; by fiscal year 2001 the inventory of charges had been reduced to 32,481, in contrast to a record 120,000 charges in mid-1995. In 1999 the EEOC launched a National Mediation Program as an alternative to the traditional complaint process. Professionals trained in mediation work with employers and employees to determine whether a mutually agreeable RESOLUTION can be reached. By 2003 the EEOC had resolved 29,000 charges through mediation. In March 2003 the EEOC added a mediation pilot program, a “referral back” program that allows the agency to give charges back to a company’s internal dispute resolution program in the hopes of mediating its own agreement. Web site: http:/www.eeoc.gov. FURTHER READINGS Fick, Barbara J. 1997. The American Bar Association Guide to Workplace Law: Everything Every Employer and Em- ployee Needs to Know about the Law & Hiring, Firing, Discrimination…Maternity Leave, & Other Workplace Issues. 2d ed. New York: Random House Reference. Player, Mack A. 2004. Federal Law of Employment Discrimination in a Nutshell. 5th ed. Eagan, MN: West. ———. 1988. Player’s Hornbook on Employment Discrimi- nation Law. Eagan, MN: West. U.S. Government Manual Website. Available online at http:// www.gpoaccess.gov/gmanual/index; website home page: http://www.gpoaccess.gov (accessed July 21, 2009). Williams, Douglas L. 1995. “Handling the EEOC Investiga- tion.” American Law Institute-American Bar Association: Employment & Labor Law. CROSS REFERENCES Affirmative Action; Civil Rights; Disability Discrimination; Employment Law; Sex Discrimination. EQUAL PAY ACT OF 1963 In an effort to end gender-based discrimination in labor wages, Congress enacted the EQUAL PAY ACT OF 1963, Pub. L. No. 88-38, 77 Stat. 56 (codified at 29 U.S.C.A. § 206(b)). The act GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 204 EQUAL PAY ACT OF 1963 established the requirement that women should receive “equal pay for equal work.” However, the average wages given to women are still lower than those of men, and so me critics have deemed the Equal Pay Act as a failure. In the years that followed WORLD WAR II, men reemerged as dominant figures in the workforce and attempts in Congress to enact an equal pay law stalled. During the early 1960s, however, Congress reconsidered the issue. When the phrase “equal work” was employed instead of “comparable work,” the legislation garnered sufficient support to be enacted into law. The act amended the Fair Labor Standard Act of 1938, 29 U.S.C.A. §§ 201-209 (2000). Congress had attempted on a number of occasions prior to 1963 to enact similar legisla- tion. The idea for the statute arose during World War II, when many women entered the work- force while men were overseas. The War Labor Board established a policy of “equal pay for women.” According to its policy, women were to receive equal pay for work that was of “com- parable quality and quantity” to the responsibili- ties of men. When members of Congress introduced legislation called the Women’sEqual Pay Act of 1945, it contained the phrase “comparable work.” This provision was the subject of a heated debate, and the bill failed to pass. Congress stated that its intent in enacting the Equal Pay Act was to establish a “broad charter of women’s rights,” designed to remedy a “serious and endemic” problem of SEX DISCRIMINATION in the workplace. Under the act, employers are prohibited from discriminat- ing against women on the basis of sex when women perform jobs requiring “equal skill, effort, and responsibility, and which are per- formed under similar working conditions” as jobs performed by men. In order to recover under the act, a woman must prove that (1) an employer paid higher wages to men than to women; (2) male and female employees con- duct an equal amount of work that requires substantially equal skill, effort, and responsibility; and (3) men and women performed the work under similar working conditions. The act establishes four main defenses for employers. An employer may pay a male employee more than a female employee if the employer can establish that payment is based upon (1) a seniority system, (2) a merit system, (3) a system whereby earnings are based upon the quantity and quality of production by the employees, or (4) a differential based upon any other factor other than the sex of the employees. Although the first three of these defenses have been the subjects of litigation, the fourth exception has been litigated more frequently. Lower federal courts have struggled with the so-called factor-other-than-sex defense, and the U.S. Supreme Court has rendered few decisions on the issue. In Corning Glass Works Co. v. Brennan 417 U.S. 188, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974), the Court ruled that an employer’s policy of paying men who worked during a night shift more than women who worked the same jobs during the day shift violated the act. The Court found that the policy was related to gender because the employer knew that women would work for less money. Three years later, in City of Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 98 S. Ct. 7370, 55 L. Ed. 2d 657 (1977), the Court ruled that a policy requiring women to contribute more to their pension funds than men violated the act. The employer in the case based its policy on MORTALITY TABLES indicating that women had a longer life span than men, so the women were required to pay higher rates for their pension funds. Since this policy was based on gender, the Court ruled that the employer had violated the act. Lower federal courts have established a number of tests to determine whether an employer has adopted a wage policy based on a factor other than sex. Some circuits require an employer to demonstrate a gender-neutral wage policy that accounts for disparity in wages between men and women. Other circuits require an employer to show that the gender- neutral system of wages is based upon the performance of a woman’s job duties or that a gender-neutral system was adopted to serve a legitimate business reason. The application of the act is limited for other reasons as well. Several courts have noted that the Equal Pay Act does not establish a system of “comparable worth,” because the act specifically applies to “equal work.” EEOC v. Madison Community Unit School District No. 12, 818 F.2d 577 (7th Cir. 1987). Accordingly, courts must generally compare the wages of men and women performing the same jobs for the same company when considering a com- plaint brough t under the act. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION EQUALPAYACTOF1963 205 The limitations of the Equal Pay Act has led a number of commentators to criticize its provision and the application of the act in the courts. Many critics note that the wages of women are still significantly lower than those of men, even though employers have become more willing to hire women. In 1997, President BILL CLINTON declared April 11, 1997 to be the “National Pay Inequity Awareness Day,” which signified to these critics that serious problems in pay inequities still existed. FURTHER READINGS Friedman, Jack A. 1994. “Real Gender-Neutrality for the Factor-Other-Than-Sex Defense.” New York Law School Journal of Human Rights 241. Houghton, Kimberly J. 1999. “The Equal Pay Act of 1963: Where Did We Go Wrong?” The Labor Lawyer 15, no. 1. Available online at http://www.bnabooks.com/ ababna/laborlawyer/15.1.pdf; website home page: http://www.bnabooks.com (accessed July 21, 2009). Szul, Gregory. 1994–1995. “Sports Law: Sex Discrimination and the Equal Pay Act in Athletic Coaching.” DePaul- LCA Journal of Art and Entertainment Law 161. CROSS REFERENCES Civil Rights Acts; Equal Protection; Equal Rights Amend- ment; Women’s Rights. EQUAL PROTECTION Equal protection refers to the constitutional guarantee that no person or class of persons shall be denied the same protection of the laws that is enjoyed by other persons or other classes in like circumstances, in their lives, liberty, property, and pursuit of happiness. The Declaration of Independence states: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. The concept of equal protection and equality in the United States is as old as the nation itself. In 1776, THOMAS JEFFERSON and the American colonists boldly announced the “self- evident” truth of human equality. Yet the meaning of equality was neither obvious nor clearly defined. The “peculiar institution” of SLAVERY was intricately woven into U.S. economic, social, and political fabric. Many Americans owned slaves, and most, including Jefferson himself, believed in the inferiority of the black race. JAMES MADISON and the other Founding Fathers drafted a national constitu- tion that protected the slave trade and recognized the rights of slave owners. Article I, Section 2, of the Constitution counted a slave as only three-fifths of a person for the purposes of representation in Congress. Slave codes permitted slave masters to buy, sell, and lease blacks like personal property. Slaves owed to their masters an unqualified duty of obedience. Slave owners, by contrast, were free to do as they pleased, short of murdering their slaves. Only community mores, common sense, and individual conscience restrained slave owners. Very few laws protected slaves from abusive or maniacal masters, and those that did were seldom enforced. In 1857 the U.S. Supreme Court placed its stamp of approval on the institution of slavery, holding that slaves were not “citizens” within the meaning of the Constitu- tion, but only “property” lacking any constitu- tional protection whatsoever (Dred Scott v. Sandford 60 U.S., 15 L. Ed. 691 [19 How.] 393). From the inception of the United States, then, a gulf has separated the Jeffersonian ideal of human equality from the reality of racial inequality under the law. The tension separating the aspirations of the DECLARATION OF INDEPEN- DENCE from the barbarism of slavery ultimately erupted in the U.S. CIVIL WAR. The victory won by the North in the War Between the States ended the institution of slavery in the United States and commenced the struggle for CIVIL RIGHTS that was to continue into the twenty-first century. This struggle began with the ratification of the Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) Amendments during the RECON- STRUCTION period following the Civil War. The THIRTEENTH AMENDMENT abolish ed slavery and INVOLUNTARY SERVITUDE, except when im- posed as punishment for a crime. The FIFTEENTH AMENDMENT did not expressly grant black citizens the right to vote, but it prohibited state and federal governments from denying this right based on “race, color, or previous condi- tion of servitude.” Each amendment gave Congress the power to enforce its provisions with “appropriate legislation.” Although both of these amendments were important, the FOURTEENTH AMENDMENT has had the greatest influence on the development of civil rights in the United States. Section 1 of the Fourteenth Amendment provides that All persons born or naturalized in the United States, and subject to the jurisdiction thereof, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 206 EQUAL PROTECTION are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without DUE PROCESS OF LAW; nor deny to any person within its jurisdiction the equal protection of the laws. The first clause emasculated the Dred Scott decision by bestowing national citizenship upon all blacks born or naturalized in the United States, making them eligible for federal protec- tion of their civil rights. The PRIVILEGES AND IMMUNITIES clause, once believed a potential source for civil rights, was narrowly interpreted by the Supreme Court in 1873 and has since remained dormant (Slaughter-House cases, 83 U.S., 21 L. Ed. 394 [16 Wall.] 36). The equal protection clause was also narrowly interpreted by the Supreme Court in the nineteenth century, but it still became the centerpiece of the CIVIL RIGHTS MOVEMENT after WORLD WAR II (1939–1945). It spaw ned desegre- gation, integration, and AFFIRMATIVE ACTION, and it promoted equal treatment and co ncern for the races under state law. It also provided the country with a starting point for a meaningful dialogue regarding the problems of inequality and discrimination. This dialogue has manifested itself in U.S. constitutional, statutory, and common law. Constitutional Law Inequalities during Reconstruction The rati- fication of the Fourteenth Amendment oc- curred during a period in U.S. history known as Reconstruction. In this era, the South was placed under MILITARY OCCUPATION by the North, and African Americans realized some short- term benefits. KU KLUX KLAN violence was temporarily curbed. BLACK CODES, passed by southern states after the Civil War to replace slavery with a segregated system based on social caste, were dismantled. Blacks were elected to state and federal office. Some achieved promi- nent status in legal circles, including one African American who obtained a seat on the South Carolina Supreme Court. But Reconstruction was not a substitute for civil rights, and the improvements realized by Equal Protection: Educational Attainment in 2007 SOURCE: U.S. Census Bureau, Statistical Abstract of the United States: 2009. Percent 100 90 80 70 60 50 40 30 20 10 0 Percent 100 90 80 70 60 50 40 30 20 10 0 Percentage of U.S. population a with a college degreePercentage of U.S. population a with a high school diploma Total b White Black Hispanic Asian Total b White Black Hispanic Asian 85.7 86.2 82.3 60.3 87.8 28.7 29.1 18.5 12.7 52.1 a Population refers to persons 25 years old and over. b Includes other races not shown separately. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION EQUAL PROTECTION 207 African Americans proved evanescent. By 1880 the North’s passion for equality had atrophied, as had its interest in the fate of African Americans. In the vacuum left by federal withdrawal, southern racism flourished and Klan TERRORISM burgeoned. Labor codes were passed relegating blacks to virtual serfdom. These codes made it illegal for anyone to lure blacks away from their job for any reason, including better working conditions and wages. Some codes provided criminal penalties for African Americans who quit their job, even when no debt was owed to their employer. Advancements made during Reconstruction were further eroded when the Supreme Court invalidated the Civil Rights Act of 1875 (Civil Rights cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 [1883]). This act proclaimed “the equality of all men before the law” and promised to “mete out equal and exact justice” to persons of every “race, color, or persuasion” in public or private accommod ations alike. In striking down the law, the Supreme Court said that when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be a special favorite of the law. The Court was not persuaded that this act was the type of “appropriate legislation” con- templated by the Fourteenth Amendment. The Rise and Fall of Separate but Equal The Supreme Court’s laissez-faire attitude tow ard racial inequality was also reflected in the area of SEGREGATION. As Reconstruction collapsed, southern states gradually passed statutes for- mally segregating the races in every facet of society. Public schools, restaurants, restrooms, railroads, real property, prisons, and voting facilities were all segregated by race. The Supreme Court placed its imprimatur on these forms of racial apartheid in the landmark decision Plessy v. Ferguson (163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 [1896]). Homer Plessy, who was seven-eighths Caucasian and one-eighth African, was prohib- ited from traveling on a railway coach for whites, under a Louisiana statute requiring “equal but separate accommodations” for black and white passengers. The Supreme Court, in an 8–1 decision, said this statute did not violate the equal protection clause of the Fourteenth Amendment: “The object of the Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but … it could not have been intended to abolish distinctions baseduponcolor,ortoenforce… acommin- gling of the two races upon terms unsatisfactory to either.” The Fourteenth Amendment, the Court concluded, was “powerless to eradicate racial instincts or to abolish distinctions based on physical differences.” Following Plessy, the “separate-but-equal” doctrine remained the lodestar of Fourteenth Amendment jurisprudence for over half a century. Legally prescribed segregation was upheld by the Court in a litany of public places, including public schools. As ADOLF HITLER rose to power in Germany during the 1930s, however, many U.S. citizens began to reconsider their notions of equality. Nazi policies of Aryan superiority, racial purity, ethnic cleansing, and extermination made many U.S. citizens view segregation in a more negative light. The juxtaposition of the Allied powers fighting totalitarianism in World War II and the citizenry practicing racial discrimination in the United States seemed hypocritical to many, especially when segregated African American troops were sacrificing their lives on the battlefield. A series of Supreme Court decisions began to limit the scope of the separate-but-equal doctrine. The first hint of the Court’s changing perspective came in the footnote to an other- wise forgettable case, United States v. Carolene Products (304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 [1938]). In Carolene Products, the Court upheld a federal statute regulating commerce, applying a presumption of constitutionality to legislation in this area. However, in FOOTNOTE 4, the Court cautioned that this presumption may not apply to legislation “directed at national … or racial minorities … [where] prejudice against discrete and insular minorities may be a special condition, which tends to seriously curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judic i al scrutiny.” The Court employed a “more searching judicial scrutiny” in Missouri ex rel. Gaines v. Canada (305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208 [1938]). This case involved a black applicant who GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 208 EQUAL PROTECTION . Act of 19 64, 42 U.S.C.A. § 2000e -4. Title VII was amended by the Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, Mar. 24, 1972, 86 Stat. 103; the Pregnancy GALE ENCYCLOPEDIA OF AMERICAN. evaluation of regional air quality activities; and provision of training in the field of air pollution control. Related activities include study, identification, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD. institutions GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ENVIRONMENTAL LAW 199 clearly fall within CERCLA’s definition of a landowner, yet they assume no traditional responsibilities of land ownership. Early