Purpose. Title VII is a federal law that forbids employers, employment agencies, labor organizations and apprenticeship programs from discriminating on the basis of race, color, sex, religion or national origin.1 It is also an unlawful employment practice for an employer to retaliate against any individual because that individual has opposed any discriminatory employment practice or because the individual has made a charge, testified, assisted or participated in an investigation, proceeding or hearing under Title VII.2

Retaliation provisions and poor job references. The U.S. Supreme Court decided Robinson v. Shell Oil Co. in February, 1997, and ruled that former employees had a right to sue under Title VII. The Court reasoned that if former employees were excluded from coverage of Title VII, the threat of post-employment retaliation via poor job references would undermine the statute as former employees may be deterred from filing claims due to fear of retaliation. The decision of the Supreme Court may cause some employers to be more reluctant to provide information about former employees due to the possibility of an additional claim that may be made against them.

Coverage. Title VII applies to all employers engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceeding calendar year.3 In January, 1997, the U.S. Supreme Court ruled in Walters v. Metropolitan Educational Enterprises, Inc. that the "payroll method" of counting employees should be used to determine whether an employer is covered under Title VII. The payroll method counts all employees on the payroll for each day of a given week regardless of whether they were actually at work that day. Note that employers with fewer than fifteen employees may be subject to state or local laws prohibiting discrimination.

Pregnancy. The Pregnancy Discrimination Act of 19784 was passed in reaction to a U.S. Supreme Court case in 1976, General Electric Company v. Gilbert, 29 U.S. 125 (1976). The Gilbert case held that differentiation of pregnancy benefits from other benefits did not violate Title VII because it was not gender-related but condition-related. The Pregnancy Discrimination Act prohibits discrimination on the basis of childbirth, pregnancy or related medical conditions in the provision of medical fringe benefits. Related medical conditions include abortions.5

Exemptions from Title VII. It is not a violation of Title VII if the employment decision is based on religion, sex or national origin if such classification is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise.6 In addition, it shall not be a violation of Title VII when religion is used as a basis for an employment decision at a school, college, university or other educational institution if such school, college, university or educational institution is in whole or part owned, supported, controlled or managed by a particular religion or by a particular religious corporation, association or society.7 Also, it is not unlawful for an employer to apply different standards of compensation, or different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex or national origin.8 Finally, it is not an unlawful employment practice for employers to give and act upon the results of professionally developed ability tests provided that such tests are not designed, intended or used to discriminate because of race, color, religion, sex or national origin.9

Procedure. Before an individual can file suit under Title VII the individual must file a claim with the Equal Employment Opportunity Commission or appropriate state or local agency. If there is no appropriate state or local agency in existence to handle the complaint, the charge must be filed with the EEOC within 180 days of the alleged wrongful act.10

If an appropriate state or local agency does exist, the charge must be filed with that agency within the time required by state law, and the charge cannot be filed with the EEOC until the charge has been on file for 60 days with the state or local agency.11 The complaining party must file with the EEOC under this circumstance within 300 days of the alleged wrongful act or within 30 days after receipt of notice that a state or local proceeding has been terminated, whichever is earlier.12

An individual may file a complaint in federal court if the case is filed within 90 days of receipt of a formal right to sue letter from the EEOC.13 A complaining party may demand the formal right to sue letter from the EEOC after 180 days from the date the charge was filed. Similar rules and procedure may apply under each state's statutes prohibiting discrimination in employment.

EEOC on Lesbian, Gay, Bisexual or Transgender Employment Discrimination

Although Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity, the EEOC and some courts have said that sex discrimination includes discrimination based on an applicant or employee's gender identity or sexual orientation. For example, the EEOC states that it is illegal for an employer to deny employment opportunities or permit harassment because:

• A woman does not dress or talk in a feminine manner.
• A man dresses in an effeminate manner or enjoys a pastime (like crocheting) that is associated with women.
• A female employee dates women instead of men.
• A male employee plans to marry a man.
• An employee is planning or has made a gender transition from female to male or male to female.

The EEOC and some courts have found that discrimination against an individual because that person is transgender, is by definition discrimination based on sex, and violates Title VII.

The EEOC has found that discrimination based on sexual orientation also necessarily states a claim of sex discrimination under Title VII.  Examples of sex discrimination involving sexual orientation include:

• Denying an employee a promotion because he is gay or straight.
• Discriminating in terms, conditions, or privileges of employment, such as by providing a lower salary to an employee because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
• Harassing an employee because of his or her sexual orientation, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.

Remedies. If a court finds that an employer has engaged in an unlawful employment practice, the court may enjoin the employer from engaging in the unlawful employment practice, order affirmative action as may be appropriate, order reinstatement or hiring of employees, with or without back pay, and any other equitable relief as the court deems appropriate.14 The court may order back pay for up to two years prior to the filing of a charge with the EEOC. Any interim earnings or amounts earnable with reasonable diligence by the person discriminated against operate to reduce the back pay otherwise allowable.15 The court may also award reasonable attorney fees as part of the costs.16

Title VII of the Civil Rights Act of 1964 was amended by the Civil Rights Act of 1991 which is discussed in the following chapter.

1. 42 U.S.C. § 2000e-2.
   
   
2. 42. U.S.C. § 2000e-3(a).
   
   
3. 42 U.S.C. § 2000e(b).
   
   
4. 42 U.S.C. § 2000e(k).
   
   
5. Catholic Bishops v. Bell, 490 F. Supp. 734 (D.D.C. 1980), Aff'd Sub Nom. Catholic Bishops v. Smith, 653 F.2d 535 (D.C. Cir. 1981).
   
   
6. 42 U.S.C. § 2000e-2(e).
   
   
7. 42 U.S.C. § 2000e-2(e).
   
   
8. 42 U.S.C. § 2000e-2(h).
   
   
9. 42 U.S.C. § 2000e-2(h).
   
   
10. 42 U.S.C. § 2000e-5(e).
    
    
11. 42 U.S.C. § 2000e-5(c).
    
    
12. 42 U.S.C. § 2000e-5(e).
    
    
13. 42 U.S.C. § 2000e-5(f)(1).
    
    
14. 42 U.S.C. § 2000e-5(g).
    
    
15. 42 U.S.C. § 2000e-5(g).
    
    
16. 42 U.S.C. § 2000e-5(k).