The following is one of a series of guides is to help both employers and employees understand their rights and obligations under the various federal employment discrimination laws. I will write in a semi-formal fashion and I hope that both employers and employees can benefit from the information provided.
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination against both job applicants and current employees on the basis of race, color, religion, sex/gender, or national origin. Failure to comply with the requirements of Title VII exposes the employer to both civil and criminal liability in the form of civil penalties, imprisonment, payment of lost wages, compensatory and punitive damages, as well as compelled hiring, reinstatement or promotion of affected employees.
I. WHAT EMPLOYERS ARE COVERED / SUBJECT TO TITLE VII:
Title VII does not apply to all employers. This is important to remember for small business. The proscriptions and protections of Titile VII only apply to employers engaged in an industry affecting commerce who have at least fifteen (15) employees each working day for twenty (20) or more weeks in the current or preceding calendar year. 42 U.S.C. 2000e(b). Title VII does not apply to the following:
- Indian tribes. 42 U.S.C. 2000e(b)
- Private member clubs which are exempt from taxation. 42 U.S.C. 2000e(b).
- Employers of foreign nationals outside the United States. 42 U.S.C. 2000e(f)
- Employment by religious organizations of certain employees. 42 U.S.C. 2000e-1.
II. CONDUCT PROHIBITED BY TITLE VII:
Discrimination: Title VII prohibits employers from refusing to hire, discharging or otherwise discriminating against any individual with respect to compensation, terms, conditions or privileges of employment on the basis of:
- National Origin
A few more notes:
Religious beliefs are moral or ethical beliefs, sincerely held with the strength of traditional religious views. 29 C.F.R. 1605.1. The prohibition on discrimination extends to religious observances unless an employer cannot reasonably accommodate a religious observance without undue hardship. 42 U.S.C. 2000e(j); 29 C.F.R. 1605.2.
(1). Pregnancy: Discrimination "on the basis of sex [or gender]" includes discrimination on the basis of pregnancy, childbirth or related medical conditions. 42 U.S.C. 2000e(k); 29 C.F.R. 1604.10.
(2). Harassment: Sexual harassment is a violation of Title VII. Sexual harassment occurs when an employee or application is exposed to unwelcome physical or verbal advances where the advances are made a condition of employment or the basis of employment decisions. Sexual harassment also occurs when the work environment interferes with job performance because of the extent of the sex-based offensive conduct and/or the hostile work environment the sex-based conduct creates. 29 C.F.R. 1604.11.
This prohibition forbids discrimination against an employee because of national origin, physical, cultural or linguistic characteristics, marriage or association with persons of a national origin group. 29 C.F.R. 1606.1.
(1). English: While not always violations of Title VII, English-only requirements may raise problems of discrimination and should be used with care. 29 C.F.R. 1606.6(b)(1).
(2). Harassment: Ethnic slurs and other verbal and physical conduct constitute harassment when it interferes with an individual's work, creates a hostile work environment, or otherwise affects employment opportunities. 29 C.F.R. 1606.8(b).
Retaliation: Title VII prohibits employers from discriminating against employees and applicants because they have exercised their rights under Title VII. 42 U.S.C. 2000e-3(a).
(1). When advertising job openings, employers may not indicate a preference based on race, color, religion, sex, or national origin except when those factors constitute a bona fide occupational qualification. 42 U.S.C. 2000e-3(b).
(2). In addition to sexual harassment (discussed above), courts have recognized that Title VII also prohibits harassment based on an employee's race, color, religion and national origin. Emerging law states that employers cannot discriminate based on "gender stereotyping". In ther words, employers cannot discriminate against a male who is not manly enough or a female who is not feminie enough.
Exceptions: As with all laws, there are always exceptions.
(1). Bona Fide Occupational Qualification: Title VII does not prohibit discrimination based on race, color, religion, sex, or national origin if such factors are bona fide occupational qualifications reasonably necessary to the normal operation of a particular business or enterprise. 42 U.S.C. 2000e-2(e)(1). This is a difficult standard for most employers to meet.
(2). National Security: An employment action taken for national security reasons is not subject to the requirements of Title VII. 42 U.S.C. 2000e-2(g).
(3). Seniority: Employment benefits granted as a result of a bona fide seniority system that is not intentionally discriminatory on the basis of race, color, religion, gender, or national origin do not violate Title VII. 42 U.S.C. 2000e-2(h).
(4).Religious Education: Religion can be taken into consideration by educational institutions controlled by a particular religion. 42 U.S.C. 2000e-2(e)(2).
(5). Title VII does not prohibit employers from granting preferential treatment to American Indians or veterans. 42 U.S.C. 2000e-2(i), 2000e-11.
(1). Employers must keep posted, in a prominent and conspicuous place, a notice explaining Title VII. 42 U.S.C. '2000e-10; 29 C.F.R. 1601.30.
(2). Employers must ensure that investigators have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation: 42 U.S.C. 2000e-8(a), 8(c); 29 C.F.R. 1602.
a. Records made for the purpose of an employment action (e.g. hiring, firing, promotion) must be kept for at least one (1) year from the making of the record or the employment action, whichever is later. Records made for the purpose of termination must be kept for one (1) year after the termination. When an employment action is challenged under Title VII all relevant records must be kept until the final disposition of the complaint. 29 C.F.R. 1602.14.
(3). Affirmative Action: Employers may be required to or may voluntarily develop affirmative action programs which must satisfy certain criteria. 29 C.F.R. 1608.1 et seq.
III. WHAT HAPPENS IF YOU DON'T COMPLY
The EEOC can bring civil action against a private employer. 42 U.S.C. 2000e-5(f)(1).
(1). The court may grant an injunction or a temporary restraining order to restrain violation of Title VII. 42 U.S.C. 2000e-5(f)(2), (g); 29 C.F.R. 1601.23.
(2). Fines/Imprisonment: (a) Civil Fine: Failure to post notice of the requirements of Title VII will subject the employer to fines of up to $100.00 for each violation. 42 U.S.C. 2000e-10; (b) Willful Falsification: An employer that willfully makes a false statement on the annual report can be subjected to fines of up to $10,000.00 and/or imprisonment of up to five (5) years. 29 C.F.R. 1602.8; 18 U.S.C. 1001.
(3). Other Relief: Relief may also include hiring, reinstatement, back pay and/or promotion of affected employees. 42 U.S.C. 2000e-5(g).
Limitation on Right of Action -- Important: The employee's right of action is contingent upon the employee first filing a timely complaint with the EEOC and obtaining a "Right-to-Sue" letter. Depending on the jurisdiction, an administrative complaint must be filed within one hundred eighty (180) or three hundred (300) days of the Title VII violation. The Lilly Ledbetter Fair Pay Act of 2009 provides that this statute of limitations resets with each new paycheck that was affected by the discriminatory conduct. 48 U.S.C. 2000e-5(e)(3). Once the required "Notice of Right-to-Sue" is issued, a civil action must be filed against the employer within ninety (90) days. 42 U.S.C. 2000e-5; 29 C.F.R. 1601.13, .28, .74.
(1). The court may grant, at the employee's request, an injunction or a temporary restraining order to restrain violation of Title VII. 42 U.S.C. 2000e-5(f)(2), (g); 29 C.F.R. 1601.23.
(2). An injured employee or applicant has a cause of action against the employer for lost wages and benefits, front pay or reinstatement and/or promotion. 42 U.S.C. 2000e-5(g).
(3). Compensatory and Punitive Damages: Section 102 of the Civil Rights Act of 1991 allows recovery of compensatory and punitive damages for intentional unlawful discrimination. 42 U.S.C. 1981a(a).
a. The sum of the amount of compensatory damages awarded for future pecuniary losses, emotional pain, suffering, mental anguish, loss of enjoyment of life, and other non-pecuniary losses and the amount of punitive damages cannot exceed the following (42 U.S.C. 1981a(b)):
(1) 15-100 Employees: $50,000.00; (2) 101-200 Employees: $100,000.00; (3) 201-500 Employees: $200,000.00; (4) 501 or more Employees: $300,000.00.
b. Jury Trial: An individual seeking compensatory or punitive damages is entitled to a trial by jury. 42 U.S.C. 1981a(c).
(4). The court may grant the prevailing party (other than the EEOC or United States) reasonable attorney's fee as part of the costs. 42 U.S.C. 2000e-5(k).
I hope this information provides a semi-concise description of the conduct prohibited by and the protections offered by Title VII.