Title VII of the Civil Rights Act of 1964 - Title VII

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Title VII, the federal law that prohibits most workplace harassment and discrimination, covers all private employers, state and local governments, and educational institutions with 15 or more employees. In addition to prohibiting discrimination against workers because of race, color, national origin, religion, and sex, those protections have been extended to include barring against discrimination on the basis of pregnancy, sex stereotyping, and sexual harassment of employees.

Currently, Title VII doesn't include discrimination on the basis of sexual orientation.However federal legislation adding sexual orientation as a protected class against discrimination (the Employment Non-Discrimination Act (ENDA)), has been proposed in recent years. Many states have employment discrimination and harassment laws as well and may include even more protected classes – such as marital status and sexual orientation – than Title VII covers.

Pay discrimination
The Lilly Ledbetter Fair Pay Act, which was signed into law on Jan. 29, 2009, changes when the statute of limitations begins for workers’pay discrimination claims under Title VII and the Age Discrimination in Employment Act of 1967 (ADEA). It declares that an unlawful employment practice occurs not only when a discriminatory pay decision or practice is adopted but also when the employee becomes subject to the decision or practice, as well as each additional application of that decision or practice. In other words, each time compensation is paid.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination

Harassment
The legal theory of harassment evolved out of legal interpretations of the discrimination prohibitions in Title VII. The law itself doesn't mention the term harassment at all but the U.S. Supreme Court has interpreted that a hostile work environment will violate the prohibitions of Title VII. When harassment is so pervasive and severe that it actually alters an employee’s terms or conditions of employment and creates an abusive working environment, a violation of the law has occurred.

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Title VII and disparate impact
The legal consideration of a Title VII disparate impact claim consists of a three-part analysis. First, the employee must identify and prove that a particular employment practice "causes a disparate impact on the basis of race, color, religion, sex, or national origin." Generally, the employee makes this showing of causation through the use of statistical evidence, which the employer may challenge.

If the employer demonstrates that the employee’s statistical evidence is unreliable, the employee will have failed to meet her burden of demonstrating adverse impact. At this point, the case (at least the disparate impact claim) would be over. If, however, the statistical evidence establishes that the challenged practice had a substantial adverse impact on the protected group, the employee will have met her initial burden.

Second, assuming that the employee establishes a disparate impact, the focus turns to the company, which must demonstrate that the "challenged practice is job related for the position in question and consistent with business necessity." In this context, "business necessity" means that the challenged employment practice has a "manifest relationship to the employment in question" and that the employer had a significant or compelling need to maintain the practice despite its disparate impact.

Third, even if the employer proves business necessity, the employee still may prevail by proving that the employer refused to adopt "an alternative employment practice" that would accomplish the same business objectives, but which would have a smaller adverse impact. In other words, pretext would be shown if the employee demonstrates that "other tests or selection devices, without a similarly undesirable [discriminatory] effect, would also serve the employer’s legitimate interest in ‘efficient and trustworthy workmanship.'" In short, for the employer to successfully defend against a Title VII disparate impact claim, it must show that the employment practice at issue was consistent with business necessity and that there was no other way with less adverse impact to achieve its legitimate business purpose.

State-by-state comparison of 50 employment laws in all 50 states

Title VII and retaliation
On January 26, 2009, the U.S. Supreme Court expanded the scope of Title VII’s anti-retaliation protections. Specifically, in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn., the Supreme Court held that Title VII’s anti-retaliation provision protects not only employees who report complaints of harassment/discrimination on their own initiative, but also employees who speak out about harassment/discrimination while answering questions during an employer’s internal investigation of a harassment/discrimination complaint.

Title VII and the EEOC
Before an employee can file a complaint against an employer under Title VII, he first must file a charge with the Equal Employment Opportunity Commission (EEOC). If the EEOC finds that the employee's claim has merit, it may sue on his behalf. Otherwise, it will issue him a "right-to-sue" letter, and he then can file a complaint and begin the litigation process.

Employees and the EEOC can sue for lost wages, benefits, reinstatement, and attorneys' fees. Compensatory damages (damages for wages and emotional distress) are "capped" by Title VII and the amount allowed per employee will vary depending on the size of the employer.

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HR Tools for Title VII

• Sample Policy - Equal Employment
• Sample Policy - Harassment and/or Discrimination