Discrimination: Title VII

Title VII of the Civil Rights Act of 1964 prohibits discrimination against workers on the basis of race, color, religion, sex or national origin. An array of federal and state laws further refine the definition of discrimination.

Discrimination is one of the most difficult issues for employers because it affects every step of the employment relationship. In this day and age, few employers engage in overtly discriminatory policies. However, with the myriad laws on the books and new initiatives being debated seemingly every day, it’s easy to see how an employer could unwittingly violate the laws.

Take these steps to minimize the chances of facing a discrimination suit:

• Review the criteria for hiring, promotion and firing throughout your organization. You must be able to demonstrate that any test or criterion is job related, has a business necessity and does not have a disparate impact.
• Be consistent, fair and clear in your policies and procedures.
• Ensure that all your managers are trained to enforce anti-discrimination laws to protect you from hostile-environment and retaliation lawsuits.

In 2000, the U.S. Supreme Court ruled unanimously that workers don’t need direct evidence that their employer intended to discriminate against them. Employees need to show only that they suffered adverse treatment (like firing or demotion) and the company’s explanation for it was false. Then a jury would be allowed to decide whether the employer’s real motive was discriminatory.

Then, in 2006, the Supreme Court decided a landmark retaliation lawsuit that makes it easier for employees to sue. The decision created a broad national standard for Title VII retaliation claims.

The new legal standard says that, to successfully bring retaliation claims to court, employees must prove two points:

1. They engaged in a protected activity (i.e., filed an EEOC charge, testified in an investigation, reported discrimination to the company, etc.).
2. Their employer subjected them to an “adverse action” because of that protected activity.

The second element is problematic in that the court defined “adverse action” quite broadly. To be retaliation, an employer’s alleged action must be “materially adverse” to the point that it would dissuade an individual from making a discrimination charge.

The question no longer is whether an employee was fired, demoted or denied a promotion because she charged discrimination. Instead, the question is whether the action would intimidate a reasonable employee. For example, while a schedule change might not bother some employees, it might create a big problem for a mother with young children.

In the Supreme Court case, Sheila White worked as a forklift operator before she filed sexual harassment charges. Soon afterward, the company transferred her to a more physically demanding job and suspended her without pay for a short time.

Although she was reinstated with full pay just 37 days later, the Supreme Court still concluded the employer had retaliated against her. It pointed to the toll that time without pay can take. Also, the court noted that requiring an employee to spend more time on “the arduous duties and less time on those that are easier and more agreeable” would be a good way to “discourage an employee … from bringing discrimination charges.” Burlington Northern & Santa Fe Railway Co. v. White, No. 05-259 (2006)

In light of the Burlington ruling, here are three ways to limit your exposure to retaliation claims:

1. Remind supervisors of the new ground rules. When employees make discrimination claims, don’t retaliate against them in any way.
2. Review the timing of any employment action, and avoid even the appearance of retaliation. That doesn’t mean you can’t enforce existing rules. Just make sure you aren’t treating the employee any differently than other employees. When others break the same rule or perform just as poorly, discipline them the same way. Consistency is key.
3. Inform supervisors that courts will now consider whether the employer’s actions would dissuade a hypothetical reasonable person from making waves.

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