Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq.) prohibits covered employers from discriminating based on:
- National Origin
Title VII's prohibition against sexual discrimination includes both sexual harassment and pregnancy discrimination. The term "discriminate" means to make a distinction, or to treat persons differently based on their race, color, national origin, sex, or religion. The pertinent statute makes it an unlawful employment practice for a covered employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" based on race, color, sex, religion, or national origin. 42 U.S.C. §2000e-2(a)(1 ).
It is also unlawful for an employer "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" based on race, color, sex, religion, or national origin. 42 U.S.C. §2000e-2(a)(2).
Like most other laws prohibiting employment discrimination, Title VII also prohibits retaliation. 42 U.S.C. §2000e-3 contains the specific statutory language prohibiting retaliation against those who oppose discrimination or who participate in a Title VII process. Typically, the charging party in a Title VII claim will be a member of a protected group, who claims to be aggrieved as a result of an adverse employment decision or practice. The allegation will be that an employer, covered by Title VII, has made an employment decision based on prohibited stereo-typical or biased thinking about the employee's membership in one of the five (5) groups protected by Title VII. Since the protections provided by Title VII are statutory in nature, an understanding of the underlying statutory framework is necessary.
Forms of Discrimination
Discrimination may take one of several forms. The most common forms of discrimination can be described as:
- disparate treatment
- disparate impact
- mixed motive discrimination
- creation of a hostile work environment
Disparate treatment is intentional discrimination. Where employment decisions are motivated by race, color, sex, etc., disparate treatment exists. The key element needed to show disparate treatment is that members of a protected group are treated differently from non-members. A "but for" test is often applied. "But for" membership in a protected group, the employee would not have been the object of the adverse employment action. With disparate treatment, the motivating factor behind the employment action is the employee's membership in the protected group.
Discrimination can also occur as the result of the disparate impact of a neutral employment rule. For example, an employer may require a high school diploma for employment in a specified geographic area where the effect of the diploma requirement is to exclude minorities from employment at a rate greater than the rate at which non-minorities are excluded. Such employment requirements will typically only be upheld where it can be established that the requirement at issue is necessary for the particular job. Another example would be to create a job requirement that all employees must be able to lift some minimal amount of weight. An employment requirement of this nature might very well exclude females from consideration for employment at a rate greater than males. This employment requirement would only be upheld if the ability to lift the minimum amount of weight was a necessary element of the job, and some reasonable accommodation was not available.
Mixed motive discrimination occurs where membership in the protected group is shown, by the employee, to have been "a reason" for the employment action being challenged, if not the sole reason. Cases in which mixed motive discrimination is at issue can be defended where the employer shows that the same employment decision would have been made without regard to the employee's membership in a protected group. In other words, cases in which mixed motive discrimination is at issue can be defended where there was some legitimate non-discriminatory reason, which was the prevailing or predominant reason for the challenged employment action. Mixed motive discrimination is defined and considered at 42 U. S. C. §2000e-5(g). See also, Foster v. University of Arkansas, 938 F.2d 111, 114 (7th Cir. 1991) where it was held that to establish Title VII liability under a mixed motive theory, the plaintiff must show that a protected status, such as race, played a motivating factor in the adverse employment decision at issue.
If the plaintiff makes a showing that race or some other protected status played a motivating part in the adverse employment decision, the defendant (employer) may avoid liability only by showing that the same employment decision would have been made even if the protected status, i.e., race, had not been considered. This may be done by introducing evidence of the employer's probable decision in the absence of an illegitimate motive. See Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Where membership in a protected group is shown to have been "a cause" for the employment action being challenged, the issue of liability under Title VII, but not damages, is established. Despite the finding of liability in mixed motive cases, a defense can still be mounted on the issue of damages.
Compensatory damages are not available in "mixed motive" cases where the employer shows that the same employment result would have occurred even without the protected status of the employee. To establish this defense, the employer must show that even with the alleged discrimination based on the employee's membership in a protected group, the same employment action would have taken place because of a valid, non-discriminatory reason. Although compensatory damages are not available in a mixed motive case, an award of attorney's fees may still be granted where the employee can show that some form of unlawful discrimination was "a cause" for the employment action.
Hostile Work Environment
A hostile work environment occurs when unwelcome conduct unreasonably interferes with an employee's work performance or creates an intimidating work environment regardless of whether the conduct is directly tied to a job benefit or detriment. In order to establish a prima facie case of a hostile work environment, an employee must show that:
- He belongs to a protected group;
- He was subject to unwelcome harassment;
- The harassment was based on his membership in a protected group;
- The harassment was sufficiently pervasive to affect a term, condition, or privilege of employment; and
- The employer knew or should have known about the harassment but failed to take prompt, corrective action.
While hostile work environment cases are most often based on allegations of sexual harassment, similar principles are applicable for analyzing discrimination based on race, national origin, or religion. Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986); Harris v. Forklift Sys., Inc. 510 U.S. 17 (1993)
To prove retaliation, it must be shown that:
- The employee engaged in an activity protected by Title VII;
- The employer imposed upon the employee some adverse employment action; and
- The employer imposed the adverse employment action because the plaintiff engaged in conduct protected by Title VII.
The pertinent code section is 42 U.S.C. §2000e-3(a). Title VII prohibits retaliation against a current employee, an applicant, or a former employee "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, or because he has opposed any practice made an unlawful practice by Title VII." Hazen Paper Co. v. Biggins, 507 U.S. 604 113 S.Ct. 1701, 1706 (1993). See also, Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986) for the proposition that a plaintiff, who is relying on retaliation, must set forth a prima facie case. To establish a prima facie case of retaliation, the plaintiff must show:
- That he was engaged in a statutorily protected activity;
- That the employer has taken an adverse employment action; and
- That a causal connection exists between his participation in a statutorily protected activity in the adverse employment action taken by the employer.
To rebut a prima facie case of retaliation, the employer must show a legitimate non-discriminatory reason for the adverse employment action. Where the employer carries its burden of production, the court must then inquire as to whether or not the stated reason for the adverse employment action was a mere pretext.
For the purpose of Title VII a "covered employer" is defined as a person, or legal entity, engaged in an industry affecting "commerce," who has fifteen (15) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year. 42 U.S.C. §2000e(a). Labor unions and employment agencies are also subject to Title VII, as are local, state and municipal governments. General agency principles are applied in deciding whether or not an employer has fifteen (15) or more employees. For example, courts consider whether or not the employer controls the time, method, and manner of work. If so, an employment relationship is typically found. If not, an independent contractor may exist.
An independent contractor is not an "employee" within the meaning of Title VII. With regard to part time employees, regular part time employees are considered "employees" under Title VII. Temporary part time employees are not considered "employees." To reach the fifteen (15) employee minimum, separate entities, including corporations, can be aggregated under certain circumstances. For example, where there is common ownership, common control, shared facilities, shared employees, shared managers, central control of labor relationships, etc., separate employees may be aggregated for the purpose of reaching the fifteen (15) employee level.
Successor liability may occur where one covered employer, such as a corporation, purchases another covered employer, against whom a Title VII claim has been made. There is, however, typically a requirement that the person or entity making the purchase have knowledge of the pending EEOC claim. In addition, if, by the purchase agreement, the successor covered employer agrees to assume the debts and liabilities of the entity being purchased, there may be successor liability under Title VII. A straight asset purchase without the assumption of liabilities and contingencies will typically not result in successor liability.
While a supervisor is considered an "employer" under Title VII for the purpose of creating liability, there is no individual liability for the purpose of paying damages. As a consequence, a supervisor may be the cause of an employer's liability under Title VII but will not be liable to pay damages, individually, to the aggrieved employee.
When an employee believes he or she has been the subject of unlawful discrimination under Title VII, a charge of discrimination must be filed with EEOC within one hundred and eighty (180) days of the alleged discriminatory act. Typically, a written charge of discrimination is required. In fact, the EEOC supplies a form, which is most often used.
Once a charge of discrimination has been filed, EEOC has one hundred and eighty (180) days to conduct an administrative investigation and to return its findings. EEOC findings are based on "reasonable" cause. Typically, EEOC will find:
- Evidence of discrimination;
- No evidence of discrimination; or
- Return a finding that it has not had sufficient time to investigate the claim.
Right to Sue Notice
Where the EEOC has not otherwise issued a Right to Sue notice after one hundred and eighty (180) days, the charging party/employee is entitled to demand and receive a Right to Sue notice from EEOC. The EEOC will issue a Right to Sue notice whether or not there is a corresponding finding that evidence of discrimination exists. The charging party is then entitled to file suit in the appropriate United States District Court unless EEOC has decided to bring an action in its own name.
Once a Right to Sue notice has been received, the charging party/employee has ninety (90) days in which to bring an action in the appropriate United States District Court. This ninety (90) days begins to run from the actual receipt of the Right to Sue notice. This ninety-day filing requirement acts as a statute of limitations where a complaint is not filed in a timely fashion.
Disparate Treatment and Hostile Work Environment
To discriminate against an employee means to treat the employee differently as far as the terms and conditions of his employment. This can range from disparate treatment to the creation of a hostile work environment based on race, color, sex, religion, or national origin. The test is whether or not the employer has applied different standards of treatment to similarly qualified persons, who are not within the protected group. For example, where racial discrimination is alleged by a black applicant or employee, the issue will be whether or not the employer has applied the same, or different, employment standards to white applicants or employees.
Evidence of Discrimination
Direct evidence can be relied upon to show discrimination. In the absence of direct evidence, circumstantial evidence is appropriate. To establish a cause of action for disparate treatment based upon circumstantial proof, the charging party must show:
- That he was a member of a group protected by Title VII;
- That he was qualified for his position, or for a position for which he was applying;
- That he suffered an adverse employment action; and
- That applicants or employees, who were not a member of his protected group, were treated differently by the employer.
These principles were established in a decision by the United States Supreme Court in McDonnell Douglas v. Green, 411 U. S. 792, 802, 93 S.Ct. 1817 (1973). Once the above elements have been established, a prima facie case (or an inference of) discrimination exists. It is then up to the employer to present evidence of a legitimate reason for the adverse employment action. This is a burden of production, and not a burden of proof. At all times, the burden of proof remains upon the charging employee. If the employer satisfies its burden of production, and shows that the adverse employment action was based on a legitimate, non-discriminatory reason, the charging employee must then show that the employer's stated non-discriminatory reason for the employment action was a mere pretext. To prove disparate treatment under Title VII, the employee must show that the employer acted with discriminatory purpose.
Where direct evidence is not available, the three-step procedure set forth in McDonnell Douglas Corp. v. Green is available. The ultimate question in a disparate treatment case is not whether the employee established a prima facie case or demonstrated pretext, but whether the employee can prove by a preponderance of the evidence that the employer intentionally discriminated against him. A showing of pretext by the employee, without, more will not support a finding of discrimination or a judgment.
Likewise, a simple finding of the employer did not rely on its proffered reason for the adverse employment action will not suffice to establish Title VII liability without a further showing that the employer relied upon the employee's membership in a protected group in making its decision. What all of this means is that a mere showing of pretext by the employee is not sufficient to obtain summary judgment. Instead, the employer is still entitled to a jury trial on the ultimate issue . . . whether or not there was intentional discrimination.
A plaintiff fired for misconduct makes out a prima facie case for a discriminatory discharge if he shows that:
- He is a member of a protected class;
- That he was qualified for the job from which he was fired; and
- That the misconduct for which he was discharged was nearly identical to that engaged in by an employee outside the protected class whom the employer retained. Nix v. WLYC Radio/Rahall Communications, 738 F.2d 1181, 1184 (11th Cir. 1984).
As with other disparate treatment cases, once an employee has established a prima facie case of a discriminatory discharge, the burden of production shifts to the employer to produce evidence of a valid, non-discriminatory reason for the discharge. As was stated earlier, this is a burden of production and not a burden of proof. At all times, the ultimate burden of proof that the employer discriminated against the employee remains with the employee. Assuming the employer carries its burden of production, the presumption of a discriminatory discharge raised by the prima facie case is rebutted. The employee must then establish, by a preponderance of the evidence, that the employer's stated non-discriminatory reason for his discharge was a mere pretext. Otherwise, summary judgment may be appropriate for the employer.
Several remedies are available under Title VII. Available remedies are:
- Injunctive relief;
- Back pay;
- Front pay;
- Compensatory damages;
- Punitive damages; and
- Attorney's fees.
Compensatory damages and punitive damages are only available in cases of disparate treatment where intentional discrimination is shown. The only remedies available in disparate impact cases are injunctive relief, reinstatement, back pay, front pay, and attorney's fees. Where reinstatement is ordered, front pay is not available. To recover attorney's fees, the employee must prevail.
Statutory caps limits exists for combined awards of front pay, punitive damages, and compensatory damages. The caps are based upon the number of employees employed by the employer against whom the charge of discrimination has been made. The caps are as follows:
- For more than fourteen (14) and less than one hundred and one (101) employees in each of twenty (20) or more calendar weeks in the current or preceding year the cap is $50,000;
- For more than one hundred (100) but fewer than two hundred and one (201) employees, the cap is $100,000;
- For more than two hundred (200) employees but fewer than five hundred and one (501) employees, the cap is $200,000; and
- For an employer with more than five hundred (500) employees, the cap is $300,000.
Separate corporate entities or employers, may be combined for the purpose of determining which of the above caps is appropriate. Some of the factors to be considered are:
- Common ownership;
- Common control;
- Shared facilities;
- Shared employees;
- Shared managers; and
- Central control of labor relations
While specifically not mentioned in Title VII, sexual harassment can constitute sexual discrimination and violates Title VII. In the employment context, sexual harassment refers to unwelcome sexual advances imposed upon an employee by someone of authority. Such unwanted sexual advances may come in the form of sexual jokes, repeated offensive comments or looks, intentional body contact, indecent propositions, or forced sexual relations.
Historically, sexual harassment claims were brought by way of a state cause of action for the intentional infliction of emotional distress or some related tort. This changed, however, in 1986 with the Supreme Court's decision in Meritor Savings Bank v. Vincent, where in the U. S. Supreme Court held that sexual harassment claims could be brought under Title VII as a form of discrimination based on sex. In its decision, the Supreme Court adopted earlier EEOC guidelines which had placed sexual harassment within the various types of activity prohibited in the workplace.
Those types of activity included "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." The EEOC guidelines provided that prohibited forms of sexual misconduct could constitute "sexual harassment, whether or not it is directly limited to the grant or denial of an economic quid pro quo where such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment. Meritor Savings Bank v. Vincent, 477 U. S. 57, 65, 106 S.Ct. 2399 (1986).
In the Supreme Court's view, the issue was whether or not the alleged misconduct was "unwelcome." Thus, if an improper and welcomed sexual advance was made, and the victim voluntarily responded to it and engaged in some sexual conduct, the employer could still be liable for the unwelcome initial conduct. In other words, the employee's voluntary participation in the ultimate or sexual relationship did not bar a cause of action so long as the initial conduct had been unwelcome.
Sexual harassment claims typically fall into one of two categories;
- quid pro quo; or
- hostile work environment.
Quid pro quo harassment occurs when an employee or prospective employee is forced to choose between an employment detriment and submitting to sexual demands. See Burlington Ind., Inc. v. Ellerth 542 US 742 (1998.) To establish a prima facie case of quid pro quo sexual harassment, the plaintiff must show:
- That she is a member of a protected class;
- That she was the subject of unwelcome sexual harassment in the form of sexual advances or a request for sexual favors;
- That the unwelcome harassment or advance was based on sex;
- That submission to the unwelcome advance was an express or implied condition for receiving job benefits or that the refusal to submit to a supervisor's sexual demands resulted in a tangible job detriment; and
- That the employer was responsible for the supervisor's conduct.
Hostile work environment occurs when unwelcome conduct of a sexual nature unreasonably interferes with an employee's work performance or creates an intimidating work environment, regardless of whether the conduct is directly tied to a job benefit or detriment. In order to establish a prima facie case, an employee must prove:
- That she belongs to a protected group;
- That she was the subject of unwelcome sexual harassment;
- That the harassment was based on sex;
- That the harassment was sufficiently pervasive to effect a term, condition, or privilege of employment; and
- That the employer knew, or should have known, about the harassment and failed to take prompt, corrective action.
Questions to be asked in sexual harassment claims are:
- Was the verbal or physical conduct of a sexual nature;
- If so, was it unwelcome; and
- Was there a quid pro quo for the sexual conduct and/or a hostile work environment.
The EEOC guidelines prohibit conduct constituting:
- Sexual advances;
- Request for sexual favors;
- Any verbal conduct of a sexual nature;
- Any physical conduct of a sexual nature;
- Written or visual sexual conduct; and
- Vulgar, crude and sexist language.
In determining whether or not the alleged misconduct was so pervasive as to create a hostile work environment a two-tiered standard is applied.
- First, whether or not the alleged misconduct would have been offensive to the average reasonable woman; and
- Second, whether the alleged misconduct was, in fact, offensive to the charging party.
Title VII prohibits sexual discrimination and sexual harassment. The EEOC has provided guidance for identifying conduct that may be considered discriminatory or harassment. If an employee is able to prove discrimination, they may be entitled to lost salary, punitive damages, and attorney's fees. It would be advisable for employers to review their policies and practices to see that they do not run afoul of the EEOC and Title VII.