14.3: Title VII of the Civil Rights Act of 1964

The Civil Rights Act of 1964 has broad significance for all racial minorities, religious organizations, and women. The bill has several provisions, but the most important for businesses is known widely as “Title VII.” It applies to employers with more than fifteen employees. Its aim is to eliminate discrimination on the basis of:

• Race;
• Color;
• Religion;
• Gender; and
• National origin.

Discrimination on any of these bases is illegal. These acts may be a refusal to hire, a failure to fully compensate, a failure for opportunities for advancement, a demotion, a temporary layoff, a termination of employment, or any other term or condition of employment.

Figure 14.4 Employment Discrimination Claims Made to the Equal Employment Opportunity Commission

Race and Color

Race discrimination involves treating someone unfavorably because he or she is of a certain race or because of personal characteristics associated with race, such as hair texture, skin color, or certain facial features. Color discrimination involves treating someone unfavorably because of skin color or complexion.

Race and color discrimination also can involve treating someone unfavorably because the person is married to, or associated with, a person of a certain race or color. Race and color discrimination can occur within the same racial group.

Figure 14.5 Participation Rates for African Americans Professionals from Equal Employment Opportunity Commission

Religion

The prohibition against religious discrimination protects anyone who has sincerely held religious or moral beliefs. Therefore, Native American tribes are protected, as well as major religions such as Buddhism, Christianity, Hinduism, Islam, and Judaism. In general, employees cannot be required to participate in religious activities as a condition of employment, unless the place of employment is a church, synagogue, mosque, or temple.

Employers must reasonably accommodate an employee’s religious beliefs or practices as long as it does not cause an undue hardship on the employer’s operation of its business. Typically, this involves being flexible in schedule changes and leaves for sabbath observance or religious holidays. Issues of dress and appearance are often grounds for charges of religious discrimination. For example, if a Muslim woman wears a hijab, or traditional headscarf, then she should be permitted to do so unless it places an undue hardship on business operations.

Gender

The prohibition on gender discrimination means that employers cannot categorize certain jobs as single-sex only unless a bona fide occupational qualification (BFOQ) applies. Customer preferences or market realities are not the basis for BFOQ. However, an example of a legitimate BFOQ is hiring female security officers to monitor women’s changing areas for loss prevention in retail stores.

Gender discrimination also includes making stereotypical assumptions about women simply because they might be the primary caregiver to children at home. If there are two equally qualified job applicants, for example, and both have young children at home, it would be illegal to give preference to the male candidate over the female candidate. Once a female employee has children, it would be illegal to assume that she is less committed to her job, or would like to work fewer hours. It’s important to note that these protections extend to men as well. If an employer voluntarily provides time off to new mothers, for example, it must extend identical benefits to new fathers.

Figure 14.6 Pew Research Center Results Regarding Gender Discrimination at Work

In 2019, unmarried childless women earned 95 percent of what men did, while married mothers earned 75 percent (averaging to 79 percent as discussed above). This discrepancy has led to an increase in family responsibility discrimination claims under Title VII. This includes claims that mothers are given less-appealing assignments than fathers based on misconceptions about being less qualified or lacking commitment to the job.

The Pregnancy Discrimination Act of 1978 amended Title VII to make it illegal to discriminate on the basis of pregnancy, childbirth, or related medical conditions. This means employers cannot refuse to hire a woman because she is pregnant or is considering becoming pregnant, or because of prejudices held by coworkers or customers about pregnant women. A female worker who becomes pregnant is entitled to work as long as she can perform her tasks, and her job must be held open for her while she is on maternity leave. Furthermore, pregnancy-related benefits cannot be limited only to married employees.

Gender discrimination can also take the form of workplace sexual harassment. Courts have generally recognized two forms of sexual harassment. The first, known as quid pro quo, involves asking for sexual favors in return for job opportunities or advancement. Courts reason that if a male worker asks a female worker for sex in return for favorable treatment, it is because that worker is female, and therefore a Title VII violation has occurred. If a supervisor fires a subordinate for breaking up with him or her, then quid pro quo harassment has taken place. The second is hostile work environment, which is discussed in more detail below.

National Origin

Discrimination on the basis of national origin involves treating workers unfavorably because of where they are from (specific nation or region) or ethnicity. It is illegal to discriminate against a worker because of his or her foreign accent unless it seriously interferes with work performance. Workplace “English-only” rules are also illegal unless they are required for the job being performed.

The protected class of national origin means that it is illegal to discriminate against noncitizens. Therefore, employers should not ask job applicants about their nation of origin. Instead, they are permitted to ask whether the applicant is authorized to work in the US. If they applicant answers “yes,” then the employer cannot ask for evidence of authorization until the applicant is hired and completes the Employment Eligibility Verification (I-9) Form.

Title VII creates only five protected classes. Other characteristics, such as obesity, attractiveness, and political affiliation, are not protected classes. Note too that Title VII does not prohibit all discrimination. Employers are free to consider factors such as experience, business acumen, personality, and even seniority, as long as those factors are related to the job in question. Title VII requires employers to treat employees equally, but not identically.

Prohibited Activities

There are four types of illegal activities under Title VII:

1. Disparate Treatment;
2. Disparate Impact;
3. Hostile Work Environment; and
4. Retaliation.

To prove a disparate treatment case, a plaintiff must show that he or she was treated differently because of his or her race, color, religion, gender or national origin. In other words, disparate treatment is intentional discrimination. Winning a disparate treatment case is hard because it is unusual for a defendant to say explicitly that his or her intention is discriminatory. Evidence of discriminatory intent is often inferred through someone’s conduct. For example, a hiring manager refuses to hire women because he does not want to deal with maternity leave requests would be evidence of disparate treatment.

Disparate impact, on the other hand, applies when a rule or policy is not discriminatory on its face but negatively impacts a protected group when it is applied. In other words, disparate impact is unintentional discrimination. Business policies that raise suspicions of disparate impact include educational qualifications, written tests, intelligence or aptitude tests, height and weight requirements, credit checks, and subjective procedures such as interviews. Businesses that have these sorts of policies need to be very careful that the policies are directly related to, and necessary for, the job function under consideration.

Figure 14.7 Disparate Impact Cartoon

Proving a disparate impact case is not easy for victims of discrimination. It is not enough for the employee to use statistics alone to show a policy or practice has a disparate impact on the victim’s protected class. Victims must show that they were harmed from the discriminatory practice.

Employers also violate Title VII if they have a hostile work environment towards people in a protected category that affects their ability to work. These cases often involve allegations where a company or employees try to get a member of a protected group to quit through name calling, undesirable work assignments, slurs, and threats. Employers are liable for hostile work environment claims if the victim suffered a “tangible employment action” such as a demotion, undesirable reassignment, or termination of employment. Even if the victim did not suffer a tangible employment action, an employer may be liable unless it can prove (1) it used reasonable care to prevent and correct the inappropriate behavior, and (2) the victim unreasonably failed to take advantage of the company’s complaint procedures.

Hostile work environment claims often involve allegations of constructive discharge. Constructive discharge occurs when an employer makes the employee’s working conditions so intolerable that a reasonable employee would feel compelled to quit. Constructive discharge claims recognize that employees should not be forced to stay in situations that risk their physical, mental, and emotional safety.

Title VII also prohibits acts of retaliation against anyone who complains about, or participates in, any employment discrimination complaint. Employers need to be very careful about this provision, because while the employer may be innocent of the first charge of discrimination, taking any subsequent action after an employee has complained can be a separate charge of discrimination. Once an employee has made a complaint of discrimination, it is very important that the employer not alter any condition of his or her employment until the complaint has been resolved. Similarly, if a witness takes part in an investigation or hearing of another employee’s complaint, the witness could also bring charges of retaliation.

Bona Fide Occupational Qualification

The law does, however, allow discrimination on the basis of religion, gender, and national origin if a bona fide occupational qualification (BFOQ) reasonably necessary for normal business operations exists. For example, a Jewish synagogue may restrict hiring of rabbis to Jewish people only, and a Catholic church can restrict hiring priests to Catholic men only. Since BFOQ discrimination extends to national origin, a producer casting for a role that specifically calls for a Filipino actor can legally restrict hiring to Filipinos only.

Managers should be very careful in applying BFOQ discrimination. It is an exception that is very much based on individual cases and subject to strict interpretation. The BFOQ must be directly related to an essential job function to be “bona fide.” Customer preference is not a basis for BFOQ. For example, airlines cannot refuse to hire men even if surveys show customers prefer female flight attendants.