Title VII

What is Title VII?

Title VII was enacted in 1964 as part of Lyndon Johnson’s Civil Rights Act.  The Act makes it illegal to discriminate or segregate in public school, establishments or any federally funded enterprise.  Moreover, it prohibits employment discrimination.  Employers cannot discriminate based on religion, sex, race, color, and national origin.    

What employers are regulated pursuant to Title VII?

The federal government, state and local governments, and, in Rhode Island, employers with 4 or more employees.  However, in the context of gender based wage discrimination, an employer only needs to have one employee to be covered. 

What employees are regulated pursuant to Title VII?

Title VII covers both current employees and prospective employees.  Moreover, it protects employees during all aspects of employment, including:

  • Transfers
  • Compensation
  • Job assignments
  • Time off
  • Retirement plans

Employers are also barred from retaliating against employees who assert their rights pursuant to the law.  This rule applies even if the complaint is baseless.

What kinds of discrimination are banned?   

Title VII bans both intentional and unintentional forms of discrimination.  Unintentional discrimination can occur where neutral employment practices have a disparate impact on a protected class in a disproportionate and unfair way. 

  • The neutral practice will only be allowed if it is legitimately related to the job.  For instance, if a job requires lifting heavy objects, it may be necessary for an employee to possess a certain amount of strength.  This could mean women are discriminated against.  However, since it can be said to be a necessary component of the job, it will be allowed. 

When can an employer be liable for Sexual Harassment?

Sexual harassment is unwelcome sexual conduct that is “severe” and “pervasive” to the point that it affects the terms and conditions of employee’s employment.  Importantly, the harasser can even be a non-employee.  An employer can be held liable for sexual harassment caused by a vendor or independent contractor. 

  • Harassment based on gender is also actionable even if it is not sexual in nature.  Destroying a worker’s tools, lockers, or making comments about someone’s ability to do a job because of their status as a male or female can create liability.

What is retaliation?

The Supreme Court has ruled that actions considered “materially adverse” are retaliatory.  The Court has defined “materially adverse” broadly as: job decisions that are harmful enough to deter a reasonable worker from complaining of harassment or discrimination.  For instance, if a worker is given less desirable work duties or shifts, that could be enough to entail retaliation.  The worker does not have to fired or have their pay cut. 

What should employers do to shield themselves from liability?

Employers should act whenever they learn that an employee, manager, or vendor is harassing or discriminating against another employee.  They should investigate and take immediate action, up and including, if necessary, firing the offender.  

Are there any exceptions?

There is a very narrow exception to Title VII.  Employers can discriminate against people based on gender, religion and national origin, but not race, if the nature of the job requires them to do so.  This exception is known as the “Bona Fide Occupational Qualification Exception (BFOQ).”  In order to use the BFOQ, employers must show that the discriminatory policy is reasonably necessary to the operation of its business.  There are times when an employer must use this exception.  For instance, it may be necessary for a bathroom attendant to be male or female.  It is never acceptable to use this exception in the context of race. 

How is Title VII enforced

An employee can file a complaint of discrimination, harassment, or retaliation with the Equal Employment Opportunity Commission (EEOC).  Employees must file this complaint before they can sue.  Once they file the complaint they must receive a “right to sue” letter from the EEOC.  Thereafter, they will have 90 days to file a law suit. 

  • Additionally, the EEOC may investigate and act on its on initiative.  Importantly, even if an employee has signed an arbitration agreement, limiting the right to sue, the EEOC may still sue. 

What are the penalties for not complying with Title VII?

If an employer is found to have discriminated, harassed or retaliated against an employee the penalties could include:

  • Paying lost wages
  • Paying pain and suffering damages
  • Punitive Damages

Attorneys’ fees, expert witness fees, and court costs