By Brad Ryder
Overview
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination, harassment, and retaliation in employment on the basis of:
° Race;
° Color;
° Religion;
° Gender; and
° National origin
NOTE: “Gender” under Title VII includes pregnancy, childbirth, sexual orientation, and transgender status.
Covered Employer
– Applies to both private and public employers.
– Private employers and state and local employers must have 15 or more employees (in at least 20 or more weeks in the current or preceding calendar year).
– “Payroll” method applies to determine whether employer has 15 or more employees. Based on all employees on the payroll, to include part-time and hourly employees, regardless whether the employees were actually at work.
– Applies to the federal government regardless of the number of employees of a particular agency or department.
– Employers that qualify as “religious organizations” or “religious educational institutions” may decide to hire and employ only people who share the organization’s religion beliefs.
Discrimination
In order to maintain a valid claim for discrimination, a job applicant or employee must prove each of the following:
1) The employee is a member of a protected class;
2) The employee was qualified for the position;
3) The employee suffered an adverse employment action; and
4) The employee was treated differently from similarly situated employees outside the employee’s protected class.
NOTE: These requirements vary, depending on the circumstances.
NOTE: Title VII applies only if the discrimination or harassment is “because of (race, sex, etc.).” Therefore, the employee must prove that the employer’s actions were discriminatory for that reason.
Disparate treatment: Employer is prohibited from treating applicants or employees differently because of their membership in a protected class.
Disparate impact: Employer is prohibited from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class.
Discrimination in violation of Title VII is most commonly linked a failure to hire, a failure to promote, or termination of employment. Issues may also arise in relation to compensation received by employees in comparison to similarly qualified employees who are of a different race, gender, etc.
Harassment
An actionable claim of harassment requires that an employee prove each of the following:
1) The employee belongs to a protected group;
2) The employee was subjected to unwelcome harassment;
3) The harassment was based on sex, race, religion, etc.;
4) The harassment affected a term, condition, or privilege of employment; and
5) The employer knew or should have known of the harassment and failed to take prompt action.
Retaliation
1) The employee engaged in statutorily protected activity (i.e., made a complaint of alleged sexual harassment);
2) The employer was aware of the employee’s activity;
3) The employer took an adverse employment action; and
4) The protected activity and the adverse job action are causally connected.
Opposition Clause: Unlawful for an employer to retaliate against an employee because he or she has opposed any practice made unlawful.
Participation Clause: Unlawful for an employer to retaliate against an employee because the employee made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.
Filing a Charge of Discrimination
To pursue a claim under Title VII, an employee must file a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”).
This document must be filed within 180 days of the last date on which the employee was subjected to either discrimination or harassment.
NOTE: In a state in which a state or local agency is responsible for enforcing a law that prohibits employment discrimination on a basis covered under Title VII (i.e., sex, race), this deadline is extended to 300 days.
If the Charge of Discrimination is not filed within this period of time, the employee waives his or her right to pursue any such claim.
Responding to a Charge of Discrimination
Once a Charge of Discrimination has been filed with the EEOC, the employer will be notified and provided a deadline for filing a Response or Position Statement. This is typically 30 days from the date that the employer is notified of the filing of the Charge of Discrimination. A thorough, but concise, Position Statement that accurately addresses the relevant facts and controlling legal principles is essential. If the Position Statement does not respond to all allegations raised in the Charge of Discrimination, it is likely that the EOOC will request additional information / documentation.
Filing a Lawsuit
An employee cannot file a lawsuit until after the E.E.O.C. has issued a Notice of Right to Sue.
Upon receipt of the Notice of Right to Sue, the employee has 90 days to file a lawsuit.
The lawsuit can be filed in either state or federal court, but most such lawsuits are filed in federal court.
A lawsuit under Title VII can be (and typically is) tried before a jury.
Damages / Remedies
Damages available under Title VII include lost earnings (back pay and front pay) and other resulting losses, such as emotional distress and mental anguish (compensatory damages). Title VII also permits for an award of punitive damages if the acts are deemed to be with malice or reckless indifference.
The maximum amount of compensatory and punitive damages (excluding back pay) is based on the number of employees:
– 15-100 employees — $50,000
– 101-200 employees — $100,000
– 201-500 employees — $200,000
– More than 500 employees — $300,000
NOTE: Calculating the number of employees for purposes of determining the cap on damages is also based on the “20 or more calendar weeks in the current or preceding calendar year” test used to determine whether the employer is covered under Title VII.
NOTE: To recover punitive damages, an employee must prove that the employer engaged in a discriminatory practice “with malice or with reckless indifference to the federally protected rights” of the employee.
A court may also enter an injunction prohibiting the employer from engaging in such conduct in the future and requiring the employer to take corrective action.
Title VII allows for payment of attorney’s fees to an employee who prevails at trial. As a result, this creates an incentive for an employer to try to resolve the claim as soon as possible. An employer’s failure to do so could result in it not only being responsible for its own attorney’s fees, but also the employee’s attorney’s fees.
Conclusions / Recommendations
Employers should fully understand not just their obligations under Title VII, but also the potential consequences for a violation of Title VII. Failing to do so could result in costly litigation and a significant award of damages, to include the aggrieved employee’s attorney’s fees and related costs.
If your business has questions about Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment Act, Fair Labor Standards Act, Equal Pay Act, Family and Medical Leave Act, or other employment-related issues, feel free to contact me at (256) 534-3288 or brad@ryderlaw.com.
This information is not intended to provide legal advice, and no legal or business decision should be based on its content. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers. Read full disclaimer.
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