Q. A former employee has brought a charge of racial discrimination under Title VII of the Civil Rights Act. I employ 10 people. Will I have to defend this claim?
A. Possibly, but it shouldn’t take long to get the case dismissed. Your company is outside the reach of Title VII, provided you can establish your company’s size to the court’s satisfaction. Title VII defines the term “employer” to include only companies with 15 or more employees. If you can show that the “employer” definition does not apply to you, then the court cannot grant relief under Title VII and will have to dismiss the claim.
You should assert the size of your company early—ideally in your answer to the Charge of Discrimination at the EEOC and, if necessary, in your answer to the civil complaint.
Some employers have been burned trying to preserve the company-size defense while attempting to win a discrimination case on the merits. In 2006, the U.S. Supreme Court applied Title VII to a restaurant with fewer than 15 employees because the owner waited to assert size as a defense until after the case had been decided. The court disagreed with the defendant’s contention that federal courts lack authority to apply Title VII to companies outside the “employer” definition.
In other words, when defending Title VII complaints, a smallwon’t keep you out of court, but it should lead to a quick dismissal once established.