Many employers, whether behemoths or small businesses, are subject to a range of federal and state anti-discrimination laws. The granddaddy of them all is Title VII of the Civil Rights Act of 1964 (“Title VII”). Here’s what you should know to stay on the right side of the law.
What is Title VII?
Title VII prohibits employers from discriminating against applicants, employees, and former employees based on certain protected characteristics (also known as “protected classes“).
Specifically, Title VII bans employment discrimination on the basis of race, color, national origin, sex (including pregnancy), and religion when it comes to:
- Promoting or demoting
- Firing, furloughs, or reductions in force
- Performance evaluation
The law is enforced by the Equal Employment Opportunity Commission (EEOC).
Other federal laws cover additional protected classes from employment discrimination, including:
- The Age Discrimination in Employment Act: Prohibits discrimination against individuals who are age 40 or older
- The Americans with Disabilities Act: Prohibits discrimination against qualified individuals with a disability
- The Genetic Information Nondiscrimination Act: Prohibits discrimination based on genetic information
- The Pregnancy Discrimination Act (PDA): Prohibits discrimination based on pregnancy.
Which employers are covered by Title VII?
Title VII generally applies to employers in the private and public sectors that have 15 or more employees; unions; and employment agencies. It doesn’t matter whether the employees are full-time, part-time, temporary, or seasonal.
An employer accused of discrimination is deemed to be covered if it had 15 or more employees for each working day in each of 20 or more calendar weeks: 1) in the same calendar year as the alleged discrimination occurred, or 2) in the calendar year prior to when the alleged discrimination occurred.
Note: State anti-discrimination laws may be more stringent–and generous–than federal law. For example, a state law might apply to employers with fewer than 15 employees.
Which employees are covered by Title VII?
The law protects job applicants, current employees (including full-time, part-time, seasonal, and temporary employees), and former employees. It covers individuals regardless of citizenship or immigration status. The law doesn’t, however, protect independent contractors.
Title VII also bans discrimination based on perceived race, color, national origin, sex, and religion — even if the perception is incorrect. For example, it prohibits discrimination based on the belief that someone is from the Middle East or is of Arab ethnicity, regardless of how the person identifies themselves or whether they are actually from one or more Middle Eastern countries or ethnically Arab.
Title VII also prohibits discrimination based on an individual’s association with someone in a protected class. For example, you can’t discriminate against an applicant because they are married to, or have a child with, someone of a different race.
What is sex-based discrimination?
Under Title VII, sex-based discrimination can occur in multiple ways. Most blatantly, an employer refusing to hire qualified women.
But the law also prohibits employment decisions based on stereotypes about abilities and traits associated with gender. Say an employer doesn’t hire a new mother because of concerns that she would be too tired to perform well. That could violate Title VII or the PDA.
Unlawful stereotyping based on sex also can happen to victims of domestic or dating violence, sexual assault, or stalking. An employer might, for example, fire a worker after learning they were a victim of domestic violence, amid fear about “drama” they may bring to the workplace.
Sex-based discrimination also encompasses harassment because of a person’s sex. This can include sexual harassment, such as unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, a subordinate, or someone who isn’t an employee of the employer, such as a client or customer.
Remember, harassment needn’t be of a sexual nature. It can include offensive remarks about a person’s sex. Generally, it’s illegal to harass a woman by making offensive comments about women in general.
That being said, minor teasing, offhand comments, or isolated incidents that aren’t frequent or serious are not prohibited, but some courts have found that even one instance of offensive harassing comments is enough to withstand legal challenge. Harassment becomes illegal when it creates a hostile or offensive work environment or when it results in an adverse employment decision. (See below for more information on unlawful harassment.)
Note: The Equal Pay Act requires employers to give male and female employees equal pay for equal work. In other words, you must pay men and women equally for doing substantially the same work at the same workplace.
What about discrimination based on religion? What counts as “religion”?
Good question. The term casts a wider net than you might expect.
Title VII protects not only people who belong to traditional, organized religions (for example, Buddhism, Christianity, Hinduism, Islam, and Judaism) but also other individuals who have “sincerely” held religious, ethical, or moral beliefs. That’s the case even if the beliefs are newly adopted, not consistently observed, or different from the commonly followed tenets of the individual’s religion.
The protection extends to religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others (including supervisors). The presence of a deity or deities isn’t necessary for a religion to receive protection. Atheists may be protected, too.
Note: Social, political, or economic philosophies, or personal preferences, aren’t “religious” beliefs under Title VII, but overlap between a religious and political view doesn’t exclude it from religious protection — as long as the view is part of a comprehensive religious belief system and not just an isolated teaching.
Such overlap has come up in the context of employer-mandated COVID vaccines when employees have sought religious exemptions. According to the EEOC, employers are permitted to ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the vaccination requirement.
If an employee’s objection to a COVID vaccination requirement isn’t religious in nature, or isn’t sincerely held, Title VII doesn’t require the employer to provide an exception as a religious accommodation.
Do employers always have to accommodate religious beliefs?
Title VII requires employers to reasonably accommodate an employee’s religious beliefs or practices unless doing so would cause “more than a minimal burden on the operations” of the business. So you may need to make reasonable adjustments to the work environment that will allow an employee to practice their religion.
Examples of some common religious accommodations include:
- Flexible scheduling
- Voluntary shift substitutions or swaps
- Job reassignments
- Modifications to workplace policies or practices (for example, dress or grooming requirements)
An accommodation may cause undue hardship if: it would violate a seniority system; jeopardize security or health; or cost the employer more than a minimal amount.
Does Title VII apply to discrimination based on sexual orientation or transgender status?
The U.S. Supreme Court has ruled that such discrimination constitutes unlawful discrimination on the basis of sex. Covered employers may not take into account an individual’s sexual orientation or transgender status when making employment-related decisions. Regarding gender identity discrimination, it is technically not part of this ruling but can be inferred. Employers would be prudent to abide by gender identity discrimination to avoid scrutiny.
According to the EEOC, employers also can’t discriminate against such individuals because their customers or clients have a problem with them. For example, an employer can’t exclude transgender employees from public-facing positions or certain geographic areas.
What is “disparate treatment”?
Unlawful employment discrimination can occur as disparate treatment or disparate impact. Disparate treatment is the more overt of the two — it comes down to intentional discrimination by an employer. Examples include assigning only employees of a certain race to customer-facing positions and implementing a policy that limits executive positions to one gender.
The law does recognize an exception, though. An employer can defend against an allegation of disparate treatment discrimination by showing that a person’s sex, religion, or national origin is a “bona fide occupational qualification” (BFOQ) for a particular job function. A designer of male clothes, for example, can hire only male models, and a church can require a minister to share its religion.
Race and color are never BFOQs, but with wider acceptance around identity, the use of BFOQs as a defense is increasingly rare. For example, a clothing designer may not be able to credibly argue that it must hire a male model to wear its clothes in a fashion show. Overall, it has become more difficult to argue that a BFOQ applies in many circumstances.
What is “disparate impact”?
Disparate impact is a more subtle form of discrimination. It occurs when an apparently neutral employment policy has a disproportionate effect on a protected class. A common example is a minimum height or lifting requirement, either of which can have the effect of excluding women.
The consideration of criminal records when hiring is another danger zone. The EEOC has found that criminal record exclusions have a disparate impact based on race and national origin.
As with disparate treatment, Title VII gives employers a potential defense to disparate impact claims. An employer can show that an exclusionary policy or practice is 1) job-related and 2) consistent with business necessity.
What about harassment?
Harassment is considered a form of prohibited discrimination under Title VII. (As well as under the Age Discrimination in Employment Act and the Americans with Disabilities Act, just to name a few.)
Harassment becomes unlawful when:
- Enduring the offensive conduct becomes a condition of continued employment, or
- The conduct is severe or pervasive enough to create a work environment that a
- reasonable person would consider intimidating, hostile, or abusive.
Employers are typically liable for unlawful harassment by a supervisor that results in an adverse employment action, such as termination, failure to promote or hire, and loss of compensation.
When a supervisor’s harassment creates a hostile work environment, an employer can avoid liability if it can show that:
- It reasonably tried to prevent and promptly correct the harassing behavior, and
- The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
What about when the harasser is a non-supervisory employee or non-employee the employer doesn’t control (for example, independent contractors or customers on the premises)? The employer can still be held liable if it knew, or should have known, about the harassment and failed to take prompt and appropriate corrective action, such as contacting the relevant authorities, banning the harasser from the physical premises.
Does Title VII ban retaliation?
Yes. Employers can’t retaliate against individuals for:
- Filing a discrimination charge
- Testifying or participating in any way in an investigation, proceeding, or lawsuit under
- Title VII
- Opposing employment practices they reasonably believe discriminate against individuals in violation of Title VII
What are the potential financial consequences for employers that violate Title VII?
The Civil Rights Act of 1991 provides that victims of intentional employment discrimination under Title VII can recover compensatory and punitive damages up to the following limits. (Figures may vary by state.):
- Employers with 15-100 employees: $50,000
- 101-200 employees: $100,000
- 201-500 employees: $200,000
- More than 500 employees: $300,000
Back pay, reinstatement, and retroactive seniority are available for all types of discrimination, whether intentional or not.