Title VII: compliance tips

Title VII of the Civil Rights Act prohibits employers from using an individual’s race, color, national origin, religion, or sex as a basis for decisions on hiring, discharging, compensation, benefits, classification, and all other terms and conditions of employment. It also forbids retaliation against employees or applicants who lodge complaints against unlawful employer acts covered by Title VII.

Key definitions

Religious discrimination includes limiting or denying equal employment to individuals without making a reasonable effort to accommodate their religious beliefs.

Sex discrimination includes discrimination based on gender, sexual harassment, and pregnancy discrimination.

Sexual harassment may be defined as unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature made to an employee under the following conditions.

1. When submission to such conduct is made a term or condition of an individual’s employment.
   
   
2. When submission or rejection is used as the basis for employment decisions (promotions, transfers, terminations, layoffs).
   
   
3. When the conduct interferes with an individual’s work performance.
   
   
4. When the conduct creates an intimidating, hostile, or offensive working environment.

Pregnancy discrimination is discrimination based on pregnancy or a related condition.  Pregnant women must be treated the same as other applicants and employees on the basis of their ability or inability to work. (See PDA)

A bona fide occupational qualification (BFOQ) is an essential job requirement or duty that creates the need to hire, or seemingly discriminate against, certain people.  It may be used as a legal defense for employment practices that appear to violate Title VII.

Coverage

Employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year must comply with Title VII.

Exempt from Title VII prohibitions and protections are:

• religious corporations, associations, educational institutions or societies 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;
  
  
• bona fide, tax-exempt private clubs;
  
  
• Indian tribes;
  
  
• businesses on or near an Indian reservation to the extent that they give preferential treatment to individuals living on or near the reservation;
  
  
• jobs that contain a BFOQ necessary to perform the job; and
  
  
• aliens employed outside the United States.

Requirements

• An employer may not use an individual’s race, color, religion, sex, or national origin as a basis for:
  
  
  1. failing or refusing to hire an applicant for employment;
     
     
  2. discharging or otherwise disciplining an employee;
     
     
  3. determining an employee’s compensation, including fringe benefits or other terms, conditions, or privileges of employment; or
     
     
  4. limiting, segregating, or classifying an employee or an applicant for employment in a way that would tend to deprive him/her of an employment opportunity or otherwise adversely affect his/her status as an employee.
     
     
• An employer may not discriminate against an applicant or an employee because he/she has opposed an employer practice unlawful under Title VII or because he/she has filed a charge,  testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII.

Record-keeping requirements

Personnel or employment records must be retained for one year from the date a record is made or an employment action is taken, whichever is later, including:

• job application forms;
  
  
• test papers completed by applicants;
  
  
• results of pre-employment physical exams;
  
  
• advertisements or notices relating to job openings, promotions, training programs, and opportunities for overtime work; and
  
  
• records of promotion, demotion, transfer, selection for training, layoff, recall, and discharge.

The EEO-1 Employer Information Report must be filed annually by September 30 and retained for three years by all employers that have 100 or more employees, or companies with 50 or more employees who are federal contractors doing over $50,000 worth of government contract work.  The Affirmative Action Report Form must also be filed and retained for three years by all employers who are required to file form EEO-1.  Exception: If a discrimination charge is filed or a complaint is made to the EEOC, all pertinent records must be retained until the complaint is resolved.

State and local governments, public schools and institutions of higher education must retain all records listed above for two years, except information used in compiling EEO forms must be retained for three years.

FAQs about Title VII

No.  Title VII protection is not limited to minorities only.  The law prohibits discrimination based on “race” — any race.  An employee who is fired because he is black and an employee who is fired because she is white would have equally valid claims of race discrimination.

Non-minorities can also claim association discrimination; that is, they are discriminated against because of their association or affiliation with a particular racial group.  For example, a white employee who is harassed for being married to an Asian man could have a valid harassment claim under the law.

Any employment decision based on a personal characteristic – regardless of whether it is a “minority” characteristic or not – may smack of illegal bias in court. Good intentions, such as hiring, promoting, or retaining members of protected classes, may not be enough to justify firing or passing over a “non-minority” employee. In fact, those same good intentions could be used against you in court to prove that your decision to fire or pass over a “non-minority” employee was, indeed, based on a characteristic protected under Title VII.

Protect your organization from reverse discrimination claims by reviewing your company’s hiring, firing, layoff, and promotion policies and practices. Conduct the following audit.

1. Does your firm use written criteria that are followed consistently for hiring, firing, laying off, and promoting employees? Are they spelled out in the company handbook, or in a memo or on a bulletin board when appropriate?
   
   
2. Do all of the criteria relate to the employee’s ability to perform the duties of the job?
   
   
3. Are the standards applied consistently to all employees/applicants? Do all managers utilize them?
   
   
4. Is there a system in place within your organization by which an employee may lodge a discrimination complaint without fear of reprisal?
   
   
5. What is your company’s procedure for handling internal investigations? If you don’t have one on the books, now is the time to formalize the process, making sure that they are thorough and timely.

Remember: Beware of implementing a quota system for the sake of racial balance unless the government mandates it. Sometimes the best intentions can backfire. Companies that have tried to set up special programs to give minorities and women a chance to learn on the job have been accused of reverse discrimination for not providing white males the same benefits.

Similarly, if you have two equally qualified employees, one black and one white, do not automatically promote the black employee in the name of diversity. You could open the door to a costly reverse discrimination lawsuit.

A bona fide occupational qualification (BFOQ) is an essential job requirement or duty that creates the need to seemingly discriminate against certain people and may be used as a legal defense for employment practices that appear to violate Title VII. However, this exception is very narrow and only applies in limited circumstances.

For example, gender can be a BFOQ for working in the dressing room of a women’s clothing store.

Acting on a customer’s biases is just as illegal as an employer acting on its own biases.  If a customer or client indicates a service preference based on gender, race, or other protected characteristic, and that preference is not based on a legitimate reason (e.g., privacy concerns), then follow these best practices.

• Explain your company’s anti-discrimination policies and the company’s duty to follow applicable anti-discrimination laws.
  
  
• Encourage the customer to focus on the employee’s skills and ability to perform the job effectively.  Having a calm, rational conversation may help some customers get over the unquestioned stereotypes or reflexive objections they may have.
  
  
• Get backup from a higher-up.  Having a united front will help show the individual that you mean business.  It is extremely important that upper management is on the same page.  A biased customer should not be able to get their way by complaining up the chain of command.
  
  
• Be prepared to lose the customer’s business.  Chances are, the cost of losing one customer’s business will pale in comparison to how much it would cost to defend against, and possibly lose, the employee’s discrimination lawsuit.