Title VII of the Civil Rights Act

The most important antidiscrimination law is Title VII of the Civil Rights Act of 1964. This law prohibits discrimination on the bases of race, color, national origin, religion, or sex at any stage of employment (i.e., hiring, firing, promotions, etc.). This law applies to private employers with 15 or more employees  whose business affects interstate commerce and to all government employment. While we will focus on Title VII, a federal law, please remember that states are able to pass laws with additional protections.

While an extensive review of the Civil Rights Act is important to fully understand Title VII, a simple summary will suffice our purposes, which you can access here.

Title VII states: “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” In 1984, the Supreme Court ruled that Title VII applies to all business entities, including partnerships and corporations. 

Title VII established the Equal Employment Opportunity Commission (EEOC) to monitor employers’ compliance with the law. An individual seeking redress for discrimination must first file a complaint EEOC before filing a lawsuit against the employer. You can find additional information, as well as file a claim, using the EEOC’s website. The EEOC may investigate your claim and attempt to reach a settlement with the employer. If a voluntary settlement cannot be reached, or if the EEOC does not have the resources to investigate your claim, it issues a “right to sue” allowing the employee to bring a lawsuit against the employer for discrimination.

Courts recognize two major types of discrimination cases:

Disparate Treatment

This has also been described as intentional discrimination. Because intent to discriminate can be difficult to prove, courts have established procedures to resolve these types of cases. The plaintiff must first show all of the following: (1) the plaintiff is a member of a protected class, 2) the plaintiff was qualified, 3) the plaintiff experienced an adverse employment decision (i.e., was not hired, was fired, etc.), 4) the employer hired/promoted/etc. a person not in a protected class.

Once the plaintiff has shown all four elements, the defendant/employer will prevail if there is a legal/legitimate explanation for the adverse employment decision. Legal justifications include hiring someone that is more qualified, more experienced, or even more likeable. Once the defendant has made such an explanation, the plaintiff can still prevail by showing that the explanation is mere pretext to hide illegal discrimination. In other words, the plaintiff can win by showing that the reason stated for the adverse employment decision was concocted after the fact to hide the true and illegal reason.

In the course of investigating the discrimination claim, investigators may find that there are both legitimate and illegal reasons for the adverse employment decision. For example, an employer may write social media posts about how she hates Antarcticans and would never hire them under any circumstances. Later, when an Antarctican accountant (who received his accounting degree from a sketchy online school) applies for the job and loses out to a world-renowned, Harvard-educated accountant who just left the SEC, the employer/defendant would still win so long as she could prove that she would have made the same decision even without the discriminatory intent.

Disparate-Impact Discrimination

This form of discrimination is also known as unintentional discrimination. It occurs when discrimination is directed as a protected class rather than an individual. For example, imagine that an employer requires a certain fluency test or an aptitude test for all applicants. Alone, this may seem like a legitimate or neutral employment practice since all applicants must take and pass the same exam. But these tests may run afoul of Title VII if the effect is to discriminate against protected classes.

To prevail on a disparate-impact claim, the plaintiff must show that the discriminatory employment practice of the defendant is statistically significant. The EEOC created the four-fifths rule, or the 80% rule to determine whether an employment practice violates Title VII. If the selection rate for members in a protected class is less than 80% of the rate of the majority, that is evidence of disparate impact.

As an illustration, imagine that the local water park, Rexburg Rapids, creates a literature test for all new lifeguard applicants. Ten white applicants take the exam and all pass and are hired. Ten applicants of Moroccan descent also take the literature test and only six pass and are hired. In this example, any of the four rejected applicants can bring suit against Rexburg Rapids for disparate-impact discrimination.

But just like disparate treatment claims, qualifying to bring a lawsuit does not mean that the plaintiff will prevail. The employer then has the opportunity to show that the employment practice in question is both job-related and consistent with business necessity. Back to our example, if Rexburg Rapids can show that sound knowledge of literature is required to save lives at a pool, it will prevail. Of course, the plaintiff could argue that Rexburg Rapid’s explanation is simply pretext for its illegal discrimination, and therefore prevail. Who wins in our example? It certainly seems like the plaintiff would win and Rexburg Rapids would be liable for its discriminatory practices. But what if the test in question was no longer a literature test, but a swim test? Even if the swim test excludes certain protected groups, Rexburg Rapids could show that swimming well is necessary for the job, and therefore prevail.

Constructive Discharge and Retaliation

If an employee is laid off or fired, that employee has been discharged. But imagine that an employer doesn't want to discharge a worker for fear of a Title VII lawsuit. In such cases, some employers have resorted to making an employee's job so intolerable that a reasonable person would feel compelled to quit. In such cases, the employee may have a claim for constructive discharge if the employee can show that the employer created this intolerable working condition as a result of illegal discrimination. 

Retaliation occurs when adverse employment decisions are made in response to the employee's opposition to the employer's illegal discrimination. The opposition need not be in writing. Rather, if an employee makes any complaint and the employer makes an adverse employment decision, including any action that would dissuade other employees from making complaints about the illegal discrimination, the employee may win the retaliation claim. 

Categories of Discrimination

Race, Color, and National Origin

Title VII bars discrimination based on race and color. Students often correctly recognize that these provisions exist to protect racial minorities within the United States. But note that it also exists to protect white or any other "majority" applicants and employees. Some text books classify discrimination against whites as "reverse discrimination," but I disagree. It's just discrimination. The law protects against discrimination based on race and color. Period. 

Discrimination against national origin is also protected. This not only protects employees where an employer discriminates against those from specific nations, but has also been interpreted to protect those who are discriminated against due to their ancestry and not just where they were born.

Sex

Title VII also prohibits discrimination on the basis of sex. This prohibits employers from hiring or making other employment decisions based on gender. Until June of 2020, this federal law was limited to gender-based discrimination, and therefore did not protect employees based on sexual orientation or trans-sexuality. In Bostock v. Clayton County, Georgia, the U.S. Supreme Court held that Title VII's prohibition against discrimination on the basis of sex also  bars discrimination on the basis of sexual orientation and gender identity. For a summary of these changes, please read this explanation of the opinion. Moreover, employers must note that many states, including Utah, have passed legislation making such discrimination illegal in those states. 

The Pregnancy Discrimination Act is a federal law that makes it illegal to discriminate based on pregnancy, childbirth, or situations related to pregnancy. 

The Equal Pay Act is another federal law that makes it illegal to pay men and women differently when they are performing substantially the same work. To prevail, the plaintiff must show that despite working and performing equal effort, equal skill, equal responsibility, and similar working condition, a member or members of the other sex receives higher pay. The employer may avoid liability by showing that the difference in pay is a result of seniority, merit, quality, or some other legitimate reason. 

Religion

Title VII prohibits work discrimination based on an individual's religious beliefs or lack of beliefs. To be protected, the belief must be sincere and based on a theory of humans' place in the universe rather than a mere personal preference. Once the employee gives notice to the employer about the religious belief, the employer must reasonably accommodate that belief unless the accommodation would create undue hardship. For example, if an employee requests 15 minutes off work every four hours to pray, the employer would likely have to accommodate this request unless doing so would cause substantial disruption to the employer's operations. 

Age Discrimination

Although not part of Title VII, Congress passed the federal Age Discrimination in Employment act (ADEA) to protect against those who are discriminated against due to their age. The ADEA applies only to employers engaged in interstate commerce with 20 or more employees and only those age 40 or above may utilize this law. 

Disability Discrimination

The Americans with Disabilities Act (ADA) was passed in 1990 and applies to employers engaged in interstate commerce with 15 or more employees. Disabilities include both physical and mental impairments that substantially affect the employees activities of daily living. 

Using language from the religious provisions of Title VII, the ADA requires employers to make reasonable accommodations for an employee's disability unless doing so would create an undue hardship. In this situation, undue hardship only occurs if the financial burden is substantial. For example, installing an elevator will cost an employer around $200,000. A small start-up with 20 employees in downtown Rexburg would likely have substantial difficulty coming up with this money and therefore would not be required to install the elevator. On the other hand, courts would not find substantial difficulty for BYU-Idaho to install an elevator to accommodate a disabled employee. 

Defenses to Claims of Discrimination

Assuming that a plaintiff has met all the requirements to start a discrimination claim, the employer may justify the discriminatory action and avoid liability. One such defense is the existence of a business necessity that justifies the discriminatory practices. For example, some jobs require that employees speak specific languages, have the ability to lift specified amounts of weight, or not have certain disabilities in order to perform the basic functions of the job. 

Another defense involves bona fide occupational qualifications (BFOQ). A BFOQ is an identifiable characteristic that is reasonably necessary for the normal job duties. These identifiable characteristics usually include gender. Hence, Disney can use the BFOQ defense when it refuses to hire men to dress up like Ariel or Cinderella in its amusement parks. While national origin may be BFOQs, race or color can never be a valid BFOQ.