Title VII – The Swiss Army Knife of Workplace Discrimination Laws

Title VIITitle VII is a series of federal laws which prohibit workplace discrimination on the basis of race, color, religion, sex, or national origin. I call it the Swiss army knife of workplace discrimination laws because it covers so many different classes of employees, prohibits various forms of both intentional and unintentional conduct and provides various forms of relief. Other federal discrimination laws only protect one class of employees, only prohibit certain types of conduct or provide only one form of relief. Title VII is by far the most often used federal workplace discrimination law.

Which Employers are Subject to Title VII?

Almost all employers, including private, federal, state and local government employers with 15 or more employees (full or part time) for 20 or more weeks in the current or preceding calendar year are subject to Title VII claims. The number of employees is calculated using the “payroll method”, meaning all employees who are on the payroll for each day of a given week regardless of whether they were actually present at work each day. Employers who do not meet the 15 employee requirement cannot be sued under Title VII.

What Employer Practices are Covered by Title VII?

Title VII covers a broad variety of employment practices, including, but not limited to:

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  • hiring and firing;
  • compensation, assignment, or classification of employees;
  • transfer, promotion, layoff, or recall;
  • job advertisements;
  • recruitment;
  • testing;
  • use of company facilities;
  • training and apprenticeship programs;
  • fringe benefits;
  • pay, retirement plans, and disability leave; or
  • other terms and conditions of employment.

It also prohibits harassment on the basis of race, color, religion, sex, or national origin, as well as discriminatory practices directed toward a person who does not belong to one of these classes, but associates with those who are.

Title VII makes it unlawful for employers to retaliate against employees who file a Title VII-based discrimination claim in good faith. The “good faith” requirement does not require that the employee win his or her underlying discrimination claim, merely that he or she had a good faith belief that he or she was subject to discrimination. Employers can be (and are) held liable for retaliation claims even though they prevailed on the underlying Title VII discrimination claim.

Protected Classes of Employees Under Title VII

Title VII’s prohibition against race, color, religion, sex, or national origin discrimination in the workplace may seem self-explanatory, but the classes described are probably broader than you might expect, and often overlap with each other. Most importantly, Title VII covers not only people who belong to these classes, but also those who the employer believes belong to one of these classes. For example, if you are not an Arab, but your employer believes you are (perhaps due to certain physical features) and discriminates against you because of it, you can pursue a Title VII claim.

Using the example above, an employee who suspects that he was discriminated against because his employer believed him to be an Arab could bring a Title VII claim based on race, color, national origin and perhaps even religion (if the employer also believed the person to be a Muslim).

Note that Title VII lists both race and color as protected classes. What’s the difference between race and color? Usually, there is no difference, but in some cases there can be. For example, color extends protection to the lightness or darkness of one’s complexion, regardless of race. So, in the case of black employees, if light-skinned employees are treated differently than dark-skinned employees, color discrimination would apply where race discrimination would not.

Note that even though the term “sex” is used instead of “gender”, Title VII (as currently interpreted) does not prohibit discrimination based on sexual orientation.

I will address more specific issues, such as reverse discrimination and sexual harassment, in later articles.

The Two Main Types of Claims Under Title VII

Title VII prohibits intentional discrimination through what is known as a “disparate treatment” claim and prohibits some policies and practices which unintentionally result in discrimination through what is known as a “disparate impact” claim. Generally, disparate treatment claims (which make up the majority of Title VII claims) involve intentionally discriminatory actions taken against a specific employee or group of employees, such as paying all female employees less money or refusing to hire black employees.

Disparate impact claims involve policies or practices which do not appear discriminatory on their face (and may not be intentionally discriminatory), but impact one protected class to a significantly larger degree than others. For example, if an employer hates short people (not a protected class, unless it is due to a disability) and implements a policy of only hiring people 5’9″ or taller, that policy would clearly affect women more than men (as a much larger percentage of women would fail to meet this height requirement). Unless there is a business reason which would justify such a practice, the employer is likely violating Title VII, even though he did not intentionally craft the policy to exclude women.

In subsequent articles, I cover many of these subjects in greater detail, along with the types of damages and other relief Title VII affords, and the means by which one brings a Title VII claim.

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