HR LAW: WHAT IS TITLE VII?

HR LAW: What is Title VII?

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HR Law: What is Title VII?HR LAW: What is Title VII?  Title VII of the Civil Rights Act of 1964 is referred to as “Title VII.”  Title VII is a federal law that prohibits employers from discriminating against employees or applicants on the basis of race, color, religion, sex, or national origin.  Those protections have been extended to include barring against discrimination on the basis of pregnancy, sex stereotyping, and sexual harassment of employees.  Many states’ discrimination laws may include even more protected classes than Title VII covers, such as marital status.  Check with your state for more specifics.  Title VII does not cover discrimination on the basis of sexual orientation.

DOES TITLE VII APPLY TO MY COMPANY?

Title VII applies to employers with 15 or more employees. Besides businesses and private employers, Title VII also includes federal, state and local government; private and public colleges and universities; employment agencies; and labor unions.   As stated in Title VII, Religious Organizations are Exempt from Title VII:  “religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

When considering your employee count, an Employee is defined as: “a worker can be counted as an “employee” if s/he has worked for the employer for at least twenty calendar weeks (in this year or last). That means some part-time workers can be covered as employees to show the employer is covered by the laws we enforce. People who are not employed by the employer, such as independent contractors, are not covered.  In some cases, if the employer has more than one worksite, employees at each of the worksites can be counted together. For example, if an employer operates four different restaurants, it may be possible to count employees at all of the restaurants together.” Sourced from EEOC

TITLE VII PROTECTIONS

“It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Employment Aspects

Title VII clearly forbids employers to discriminate in the following aspects of employment:

» 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

» Other terms and conditions of employment

Forms of Discrimination

Prohibited discrimination can take many forms:

» Can be based on any characteristic associated with being a member of one of the protected classes.

» Can be based on stereotypes about these groups.

» Can be based on being associated with a member of a protected class.

» It’s important to note that Title VII applies not only to direct discrimination. It also applies to situations in which a policy is implemented that may seem neutral but has a disproportionate impact on members of one or more of the protected groups.

» Title VII also prohibits conduct that would constitute a hostile work environment for members of one or more of the protected classes. This could include jokes, comments, or other forms of harassment.

» Protection against Retaliation – Employers cannot retaliate against an employee for filing a charge of discrimination or speaking out against discrimination.  Title VII also protects coworkers who choose to be interviewed and speak during the investigation or court hearings.

WHO ADMINISTER AND ENFORCES TITLE VII?

The EEOC or Equal Employment Opportunity Commission regulates all anti-discrimination activities in accordance with Title VII and other discrimination laws.

Employees or Applicants have 180 days from the date of discrimination to file a claim or “Charge of Discrimination.”  As stated above, employers cannot retaliate against an employee for filing a charge of discrimination or speaking out against discrimination.

Disparate Impact

Disparate or Adverse Impact is defined as “a way to prove employment discrimination based on the effect of an employment policy or practice rather than the intent behind it. Laws that prohibit employment discrimination apply not only to intentional discrimination, but also to apparently neutral policies and practices that have a disproportionate adverse affect on members of a protected class.” (Sourced from NOLO)

Disparate Impact is basically unintentionally discriminating against a protected class. It has a discriminatory effect, even if it wasn’t motivated by an intent to discriminate.  An Employee or Applicant’s disparate Impact claims consists of a three-part analysis:

1-First the employee or applicant must Identify and Prove that an employment practice causes disparate impact on the basis of race, color, religion, sex or national origin.  This is usually done through statistical evidence, which may be challenged by the employer.

2-If the employee or applicant meets the first burden proving disparate impact, the company must prove that the “challenged employer 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.

3-Even if the employer proves that the practice was a business necessity, the employee or applicant may still win this by proving that the employer could have adopted alternative practices that would not be discriminatory.   ***The way for a company to win Title VII cases is to prove that the practice was necessary for business and that there was no other way with less of an impact to achieve its legitimate business purpose. 

Bona fide Qualifications: An exception to the general rule against disparate treatment exists when the lack of a protected characteristic is a bona fide occupational qualification (BFOQ) for a particular job. An employer may successfully defend on the grounds that although a particular requirement seems intentionally discriminatory, it is a BFOQ for a job.  For example: A modeling agency may need to find a model for a woman’s clothing line.  The agency can choose to only consider women for this job opening.

Discrimination Claim Process

The EEOC notifies the employer within 10 days when a discrimination charge is filed.  This charge does not necessarily mean that an employer has engaged in discrimination.  But it gives the EEOC the authority to investigate whether there is reasonable cause to believe discrimination occurred.  If the EEOC finds discriminatory activity has occurred, there may be a chance for the employer to settle in mediation, though not always offered.  The EEOC will then investigate all requested statements and documentation in order to evaluate if discrimination occurred.   Some of these documents include:

» Statement of Position

» Documents Requested from the EEOC’s Request for Information (RFI) (Policies, files, etc)

» On-Site Visit

» Provide information to the EEOC regarding Witness Interviews.  Although your company representative may be present for management level interviews, the EEOC does not need your company’s permission or your representative’s presence for non-management level interviews.

Employer Tips from the EEOC

Here are tips from the EEOC regarding the employer’s part during an investigation:  “Employers are encouraged to present any facts that they believe show the allegations are incorrect or do not amount to a violation of the law. An employer’s input and cooperation will assist EEOC in promptly and thoroughly investigating a charge.

» Work with the investigator to identify the most efficient and least burdensome way to gather relevant evidence.

» You should submit a prompt response to the EEOC and provide the information requested, even if it is believed the charge does not have merit. If there are extenuating circumstances preventing a timely response from you, contact your investigator to work out a new due date for the information.

» Provide complete and accurate information in response to requests from your investigator.

» The average time it takes to investigate and resolve a charge was about 10 months in 2015.

» EEOC is entitled to all information relevant to the allegations contained in the charge, and has the authority to subpoena such information. If you have concerns regarding the scope of the information requested, advise the EEOC investigator. In some instances, the information request may be modified.

» Keep relevant documents. If you are unsure whether a document is needed, ask your investigator. By law, employers are required to keep certain documents for a set period of time.”

EEOC Promises

The EEOC has stated that they will be available to answer questions about the investigation; respond to inquiries about the status of the investigation; allow the organization to respond to the allegations; conduct a timely investigation; and inform the organization of the outcome.

When the investigation is complete, the EEOC will determine if charges need to be filed or dismissed. 

» If reasonable cause to believe discrimination is not found, the EEOC will send the employee a notice called Dismissal and Notice of Rights. This notice informs them of their rights to file a federal lawsuit within 90 days. A copy is also sent to the employer.

» If reasonable cause to believe discrimination occurred is found, the EEOC will send the employer and the employee a Letter of Determination. The letter will encourage both parties to resolve the charges in Conciliation.

» If Conciliation does not work out, the EEOC can file a lawsuit in federal court.  If the EEOC decides not to sue, the employee will receive a Notice to Sue that must be filed within 90 days.

Penalties

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.  HR LAW: What is Title VII?


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