Title VII applies to any “person” engaged in an industry affecting commerce who employs 15 or more persons in each of 20 consecutive calendar weeks of the current or preceding year.
The term “person” is expansively construed and explicitly includes the usual organizational structures established to further business purposes. Employers should note that, in order to establish the existence of the requisite number of employees for coverage purposes, nominally separate entities may in some instances be grouped together.
Such a grouping most often occurs where there is interrelation of operations, common ownership and management, and centralized control of labor relations.
The provisions of the Act do not apply to the employment practices of bona fide, tax-exempt private clubs or to religious entities, with respect to the employment of individuals of a particular religion to perform tasks associated with conducting the activities of that entity. In EEOC V. Arabian American Oil Company, No. 89-1838, 55 FEP Cases 449 (1991); the U. S. Supreme Court reversed a long-standing EEOC position and held that Title VII of the Civil Rights Act of 1964 does not apply beyond the United States borders to regulate the employment practices of United States employers employing American citizens abroad.
However, the new Civil Rights Act of 1991 reverses this U.S. Supreme Court decision and makes not only Title VII but the Americans With Disabilities Act applicable to American Citizens working overseas. (See, Section N, Chapter 16.)
Title VII’s prohibitions apply to the employment practices of all agencies of state and local governments. However, elections or appointments of public officials and the selection of personal staff members, persons or policymaking positions, and persons to exercise constitutional or legal powers by such officials are not subject to the Act. The employment practices of the federal government were made subject to Title VII by the 1972 amendments.
A number of different theories exist under Title VII for determining whether employers have engaged in unlawful discrimination. All employers should be aware of these theories so that they can avoid potential legal problems.
The Civil Rights Act of 1991 makes claims of adverse impact and disparate treatment easier for plaintiffs to prove and more difficult for employers to defend. Among the theories of discrimination are the following:
Under this theory, an employer can be held liable for discrimination when a member of a protected class is given adverse treatment compared to a nonmember of that class under similar circumstances. That is, an employer cannot treat a person within a protected class differently than one who is not in that class absent some reason other than race, color, religion, sex, or national origin.
Examples of unlawful disparate treatment might include rejecting a female applicant while hiring a less qualified male employee, firing a Hispanic employee for misconduct that normally would result in only written warnings for white employees or refusing to hire or promote females for certain positions based on an “assumption” that they cannot handle the demands of some jobs or may be limited by family obligations.
Other examples would include an employment practice of maintaining an all-white or all-male work force in certain more desirable or higher paying jobs or departments, or paying male or white employees more than black or female employees for the same work (also possibly an Equal Pay Act violation for female employees).
This theory focuses on statistical patterns in determining whether minorities, females or ethnic group members are adversely affected by a neutrally applied employment requirement at a disproportionate rate compared to a person not in the same protected class.
Such a pattern might exist, for instance, where the percentage of minority employees promoted is significantly less than the representation of minorities in the employer’s work force, or where the percentage of female new hires in a particular job category is significantly less than the percentage of qualified female applicants for positions in that category.
If an adverse impact is shown to exist, it requires the employer to show that the criteria that resulted in the impact are job-related and are justified by business necessity.
This statute prohibits discrimination in hiring, terms and conditions or termination based upon a person’s age. It specifically defines a protected class of employees as those employees over the age of 40 years. The ADEA prohibits not only the discriminatory treatment of employees based upon age, but also the utilization of a neutral policy that has a discriminatory impact.
In 1978 Congress amended Title VII to prohibit employment discrimination against women based upon pregnancy, childbirth, or any other pregnancy-related conditions.
This provision requires that employer’s treat women affected by a pregnancy related condition the same as other applicants and employees according to their ability or inability to work. If, for instance, fringe benefits, such as sick leave and health insurance, are provided for employees suffering from nonpregnancy-related disabilities, then the same benefits must be provided for women suffering from pregnancy-related disabilities.
This same principle has been extended to situations in which employers provide fringe benefits for employees’ dependents. For example, in Newport News Ship Building & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), the Supreme Court upheld an EEOC guideline stating that employers who cover the medical expenses of female employees’ spouses must also cover expenses for male employees’ spouses, including those arising from pregnancy related conditions.
Employers also cannot impose terms and conditions upon pregnant female employees that are not made applicable to employees with other types of medical conditions. Thus, an employer cannot require a pregnant female employee to begin her leave at a certain point in her pregnancy when she is able to do her job and no such action is ever taken with respect to employees suffering from other conditions.
However, requirements or restrictions made applicable to employees or applicants suffering from nonpregnancy related conditions can equally be applied to women with a pregnancy-related condition. For example, an employer could probably require a pregnant employee who appears to be experiencing problems doing her job to get a doctor’s approval to continue working when the employer’s past practice or written policies provide for such actions regarding employees who have encountered work-related problems due to other types of medical conditions.
What is required simply is that employers do not discriminate between pregnancy-related conditions and other temporary disabilities. They need not take any particular actions regarding pregnant applicants and employees that are not taken for other applicants or employees with similar medical conditions, nor must they establish particular benefit programs for such individuals where none have existed before for other temporary disabilities.
On March 20, 1991, the United States Supreme Court ruled that employers may no longer use sex-specific fetal protection policies to bar women from jobs. UAW v. Johnson Controls, Inc., 886 F.2d 871 (7th Cir. 1989), rev’d and remanded, No. 89-1215 (March 20, 1991).
Companies often implement fetal protection policies when it is not technologically feasible to fully protect fetuses from exposure to dangerous substances or when it is not clear whether a danger to fetuses exists.
In the Johnson Controls case, the company implemented a policy barring all women of childbearing age from jobs involving actual or potential exposure to lead in amounts exceeding OSHA recommended levels. Women who wanted to work in these positions were required to submit medical documentation of inability to bear children.
In response, the United Autoworkers Union brought a class-action lawsuit on behalf of “all past, present and future production and maintenance employees,” claiming that the policy constituted unlawful sex discrimination under Title VII.
The U. S. Supreme Court held that by excluding only women from the lead exposure jobs, Johnson Controls explicitly discriminated against women on the basis of their sex. Further, the court ruled that by using childbearing capacity as the criterion for exclusion, the company also violated the Pregnancy Discrimination Act of 1978. Thus, because the company policy was discriminatory on its face, a defense based on business necessity was unavailable.
Instead, the court found that the only defense available to a company was the more stringent bona fide occupational qualification (BFOQ) defense. The court explained that the BFOQ defense, when based on a safety theory, is limited to situations where sex or pregnancy actually interferes with an employee’s ability to perform job-related duties. Since fertile women perform their duties just as efficiently and safely as other workers, Johnson Controls was unable to establish a BFOQ based upon the absence of fertility.
Further, the court stated that the company’s concerns about the welfare of unborn children also failed to establish a BFOQ of sterility. Rather, the court felt decisions about the welfare of future children are best left to the parents who choose to “conceive, bear, support and raise” the children.
In everyday language as well as in the law, the terms “gender” and “sex” are used inter-changeably, but the two terms have different meanings. Social scientists use the term “sex” to refer to a person’s biological or anatomical identity as male or female, while reserving the term “gender” for the collection of characteristics that are culturally associated with maleness or femaleness. Discrimination is generally illegal regardless of whether it is based on sex, or gender or both sex and gender.
Here are some examples of potentially unlawful sex/gender discrimination that women, for example, may face:
Hiring/Firing/Promotions: You apply for a job for which you have experience and excellent qualifications, but you are not hired because some of the company’s long-time clients are more comfortable dealing with men; you are told that you are laid off due to company cutbacks and reorganization, while men in the same job and with less seniority than you keep their jobs; you have worked for your company for several years, receiving exemplary reviews and an employee-of-the-year award, yet each of the five times you have applied for promotions, the positions you applied for are instead filled by less qualified men.
Pay: You worked your way up from the position of cook’s helper to chef. A male chef with similar training and work experience was recently hired, and you find out that he will be paid more than you; you are a top salesperson for your company, but are moved to a less desirable territory while a man with much lower sales is given your territory and client base, enabling him to make much more in commissions than you will make for several years.
Job Classification: You work at a company for four years and put in many hours of overtime. After you return from having a baby, you tell your employer that you will not be able to put in as many hours of overtime. Your position is then changed to a lower level and you get less pay, while male coworkers in similar positions are allowed to cut back their overtime hours for personal reasons without any changes to their positions or pay.
Benefits: Your company’s health insurance policy does not cover your spouse, because it is assumed that he will have his own benefits, while your male coworkers have their wives covered by the policy. Because your husband is between jobs, you have to pay increased health benefits on his behalf that your coworkers do not pay for their wives.
Source – http://www.workplacefairness.org/sexual-gender-discrimination#1
It is also against the law to discriminate against an employee because of:
Here are some examples of potentially unlawful national origin discrimination:
Affiliation: Harassing or otherwise discriminating because an individual is affiliated with a particular religious or ethnic group. For example, you are harassed because you are Arab or practice Islam, or are paid less than other workers because you are Mexican.
Physical or cultural traits and clothing: Harassing or otherwise discriminating because of physical, cultural, or linguistic characteristics, such as accent or dress associated with a particular religion, ethnicity, or country of origin. For example, you are harassed by coworkers for wearing a hijab (a body covering and/or head-scarf worn by some Muslims), not hired because you have a dark complexion and an accent believed to be African. Height and weight requirements can also be evidence that an employer discriminates against a specific national origin, if the requirements do not relate to the job.
Perception: Harassing or otherwise discriminating because of the perception or belief that a person is a member of a particular racial, national origin, or religious group, even if the person is not. For example, you’re a Chinese woman not hired because the hiring official believed that you were from Vietnam, or you are a Sikh man wearing a turban harassed by a coworker because the harasser thought you were Muslim.
Association: Harassing or otherwise discriminating because of an individual’s association with a person or organization of a particular religion or ethnicity. For example, you are harassed because your husband is originally from Afghanistan, or you are not promoted because you attend a mosque.
Some workers experiencing religious discrimination may also experience other forms of illegal discrimination as well, such as national origin discrimination, immigration/citizenship status discrimination, and/or race discrimination. Here are some examples of potentially unlawful religious discrimination:
Examples of sexual orientation discrimination include:
Sexual orientation discrimination is not covered by the federal laws that generally prohibit discrimination based on race, color, sex, religion, national origin, age, and disability for private employers. While there are efforts underway to pass a federal law to make discrimination on the basis of sexual orientation illegal (the Employment Non-Discrimination Act, or ENDA), this bill has not yet become law.
Source – http://www.workplacefairness.org/sexual-orientation-discrimination#1
In the past decade, we have seen the number of pregnancy related discrimination’s jump by almost 35%. 1 out of every 5 discrimination charges leveled by women, is associated with pregnancy, according to the Equal Employment Opportunity Commission (EEOC). After the Pregnancy Discrimination Act of 1978, which prohibits “sex discrimination on the basis of pregnancy,” …
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