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EEO LAW BASICS
CHAPTER 1
TITLE VII OF THE CIVIL RIGHTS ACT,
42 U.S.C. §§2000E ET SEQ.
1-A | WHO IS COVERED UNDER TITLE VII?
The following entities are covered under
42 U.S.C. §2000e:
1. Employers and their agents that “affect commerce” and have “fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year[.]”2 The definition includes American employers (including foreign corporations controlled by American employers) outside U.S. territorial jurisdiction, with respect to treatment of U.S. citizens, unless otherwise required by host country’s law.3
2. State and local government employers.
3. The federal government’s executive branch and units of judiciary and legislature subject to competitive civil service and Congressional entities.4
4. Employment agencies and their agents (“any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer”).
5. Labor organizations (“engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization”).5
6. Training programs (“joint labor-management committees controlling apprenticeship or other training or retraining, including on-the-job training”).
The definition of employer excludes:
1. A bona fide membership club (“(other than a labor organization) which is exempt from taxation under section 501 (c) of title 26“).
2. Indian tribes.
3. The United States and wholly owned corporations.
4. “Any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5)[.]”
5. Religious organizations (“with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities”).6
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
Footnotes
2 Walters v. Metropolitan Educ. Enters., Inc., 519 U.S. 202 (1997) (all employees on employer's payroll count toward 15-employee threshold).
3 42 U.S.C. §2000e(f); §2000e-1(b)(c).
4 Protections of Title VII and certain other worker protection laws were extended to employees of the House, Senate, Capitol Police, Congressional Budget Office, inter alia, by the Congressional Accountability Act ("CAA"), Pub. L. 104-1 (1995), 2 U.S.C. §1301 et seq.
5 Pursuant to 42 U.S.C. §2000e(e),
[a] labor organization shall be deemed to be engaged in an industry affecting commerce if
(1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or
(2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is
(A) twenty-five or more during the first year after March 24, 1972, or
(B) fifteen or more thereafter, and such labor organization —
(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended [29 U.S.C. 151 et seq.], or the Railway Labor Act, as amended [45 U.S.C. 151 et seq.];
(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or
(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or
(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or
(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.
6 42 U.S.C. §2000e-1(a).
1-B | WHAT CLASSES ARE PROTECTED UNDER TITLE VII?
The following classes are protected under
42 U.S.C. §2000e-2:
1. Race.
2. Color.
3. Religion.
4. Sex
(which includes sexual harassment7 and discrimination based on pregnancy, childbirth or related medical conditions.8).
5. National origin.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
Footnotes
7 See Chapter on Sexual Harassment.
8 Title VII was amended in 1978 to prohibit discrimination based on pregnancy, childbirth, and related medical conditions. 42 U.S.C. §2000e(k). This statutory provision is referred to as the Pregnancy Discrimination Act (“PDA”).
1-C | WHAT CONDUCT DOES TITLE VII PROHIBIT?
Title VII’s employment protections cover the following types of conduct under
42 U.S.C. §2000e-2:
1. For an employer, it is unlawful to discriminate based on a protected class in matters involving:
a) hiring;
b) discharge;
c) compensation; and
d) terms, conditions, and privileges of employment.
It is also unlawful for the employer to “limit, segregate, or classify his [her] employees or applicants in any way which would deprive or tend to deprive any individual of opportunities or which would otherwise affect his [her] status as an employee” because of membership in a protected class.
2. For an employment agency, it is unlawful to “fail or refuse to refer” a person for employment or “otherwise discriminate” against an individual because of his/her protected class. It is also unlawful to classify or refer an individual for employment on the basis of his/her protected class.
3. For a labor organization, it is unlawful to:
a) “exclude or expel from its membership, or otherwise discriminate” against an individual because of his/her protected class;
b) “limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s” membership in a protected class;
c) “cause or attempt to cause an employer to” unlawfully discriminate.
4. For any training program (of “any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining,”) it is unlawful to “discriminate against any individual because of his [her] race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.”
| Note: | Under 42 U.S.C. §2000e-2(f), it is not unlawful to take action because of membership in a Communist-based organization. There is also a national security exception under 42 U.S.C. §2000e-2(g). |
| Note: | Under 42 U.S.C. §2000e-2(h), among other things, it is not unlawful to take different action “pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate” based on a protected class. |
| Note: | Under 42 U.S.C. §2000e-2(i), the discrimination provisions do not apply “to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.” |
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
1-D | WHAT IS THE “BONA FIDE OCCUPATIONAL QUALIFICATION” EXCEPTION?
Under
42 U.S.C. §2000e-2(e)(1), it is generally not an “unlawful employment practice” for an employer, an employment agency, a labor organization, or a training program to base an employment decision on an individual’s protected
class “where religion, sex, or national origin is a
bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise[.]”
Under
42 U.S.C. §§2000e-2(e)(2), a similar “qualification”
exception exists for schools, colleges, and other educational institutions as it relates to religion.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
1-E | WHAT THEORIES ARE USED TO PROVE TITLE VII DISCRIMINATION?
There are four basic theories used to prove
Title VII discrimination:
1) disparate treatment;
2) policies or practices that presently perpetuate the past effects of discrimination;
3) disparate impact; and
4) failure to make a religious accommodation.9
The two most common theories are discussed here.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
Footnotes
9 See Barbara Lindemann Schlei and Paul Grossman, Employment Discrimination Law Second Edition and Updates, Third Edition, Ch. 1, p. 4 (BNA 1997).
1-F | WHAT IS DISPARATE TREATMENT AND HOW DO YOU PROVE IT IN AN INDIVIDUAL CASE?
Disparate treatment is the different (and typically less favorable) treatment of an individual because of his/her protected class.
Teamsters v. U.S., 431 U.S. 324, 335 n.1 (citation omitted) (1977). The key
issue is whether the employer’s
actions were motivated by
discrimination. The plaintiff employee may prove the employer’s discriminatory intent by
direct evidence or by
circumstantial evidence.
Direct
evidence is
evidence that directly proves
discrimination. For example, a statement by the decision maker in the decisional process that he/she is terminating the employee because of the employee’s religion would be
direct evidence of
discrimination. “[S]tray remarks[,]” which are “statements by nondecisionmakers” and “statements by decision makers unrelated to the decisional process itself,” do not constitute
direct evidence.
Hopkins v. Price Waterhouse, 490 U.S. 228, 277 (1989).
Circumstantial
evidence is
evidence that, although not direct, would permit the
factfinder to “infer” that
discrimination has occurred. An example of
circumstantial evidence would be proof that qualified African Americans have applied, but that no qualified African Americans have been hired. Although there is no rigid test for proving
discrimination (see
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (citation omitted) (“
The McDonnell Douglas methodology was ‘never intended to be rigid, mechanized, or ritualistic.’”)), the McDonnell Douglas framework is the generally-accepted approach to evaluate
circumstantial evidence. In a discriminatory discharge
case, that framework first requires an employee to prove a
prima facie case by showing that he or she was:
a) a member of a protected class;
b) qualified for the position;
c) discharged from the position; and
d) replaced by a non-member of a protected class.
Id. at 506.
If the employee meets this
burden, then the employer has a
burden of producing
evidence of a legitimate nondiscriminatory business reason for its decision.
Id. at 506-07. Once the employer proffers such a reason, the
presumption of
discrimination “simply drops out of the picture,” and the employee must then show that the employer’s proffered reason is a pretext for
discrimination.
Id. at 511 & 515. As the
Hicks Court has indicated, “a reason cannot be proved to be a ‘pretext for
discrimination’ unless it is shown both that the reason was false, and that
discrimination was the real reason.”
Id. at 516 (emphasis in original). Further, depending on the strength of the
evidence, “rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional
discrimination.”
Id. at 511 (emphasis in original).
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
1-G | WHAT IS DISPARATE IMPACT AND HOW DO YOU PROVE IT?
To prove disparate impact (sometimes referred to as “adverse impact”), an employee must show that a facially-neutral policy or practice has a significant adverse impact on a protected class. For disparate impact, the employee need not show discriminatory intent.
Griggs v. Duke Power Co., 401 U.S. 424, 430-32 (1971).
As a result of the to
Civil Rights Act of 1991’s amendment Title VII, an employee seeking to prove disparate impact must articulate a
prima facie case of disparate impact by showing that the
challenged practices have a disproportionate impact on a protected group. If the employee makes this showing, the
burden of persuasion shifts to the employer to show that the
challenged practices are “job related for the position in question and consistent with business necessity.”
42 U.S.C. §2000e-2k(1)(A). To meet this
burden of persuasion, the employer can use any of the three validation techniques included in the EEOC’s Uniform Guidelines on Employee Selection Procedures. to
29 C.F.R. §1607.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
1-H | UNDER THE STATUTE, WHAT ARE THE DAMAGES FOR TITLE VII DISCRIMINATION?
Title VII remedies include back pay, attorney fees, interest, and
equitable relief.
42 U.S.C. §2000e-5(g)(k). Where an employee shows intentional
discrimination (i.e., disparate treatment), the employee can recover compensatory and punitive
damages up to a specified, capped amount.
42 U.S.C. §1981a. Punitive
damages require “
malice” or “reckless indifference to the federally protected rights” of the employee.
Id. The Supreme Court has
held that such punitive
damages may only be
awarded where there is conscious wrongdoing.
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 537 (1999). Compensatory
damages include “future
pecuniary losses [i.e., front pay], emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other
nonpecuniary losses.”
42 U.S.C. §1981a. The
damages cap on the sum of compensatory and punitive
damages ranges from $50,000 to $300,000 based on the size of the company.
Id.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
Chapter 1 | EEO Law Basics
