Chapter 2

Title VII—
The Foundation of
Workplace
Discrimination Law
Examples of Federal Workplace
Discrimination Laws
•Title VII of the Civil Rights Act of 1964 prohibits
discrimination based on race, color, religion, sex,
national origin, and genetics.
•Equal Pay Act of 1963 (EPA) prohibits unequal
compensation for men and women who perform
substantially equal work in the same establishment.
•Age Discrimination in Employment Act of 1967 (ADEA)
prohibits discrimination against individuals who are
40 years old or older.
•Americans with Disabilities Act of 1990 (ADA) prohibits
discrimination against qualified individuals with disabilities.
Title VII

• The most comprehensive federal law that governs

employment discrimination is Title VII of the Civil
Rights Act of 1964, which prohibits discrimination in
employment based on race, color, religion, sex,
national origin, and genetics.
• The law became effective on July 2, 1965, and has been
amended a number of times.
• Title VII makes it illegal for employers to discriminate
in all aspects of employment. This prohibition attaches
at the early stages of the hiring process, imposing
obligations on employers as they advertise for a
position and start to recruit and interview applicants.
Who Is Covered by Title VII?

• Statute’s applicability limited to public- and private-sector

employers who employ at least 15 employees.
• Today, however, most states have passed laws that
prohibit workplace discrimination that apply to
employers of all sizes.
Introduction to Key Terms

Protected classes under Title VII: race, color, religion, sex

(includes pregnancy and sexual harassment), national origin,
and genetics
Adverse action: a decision that has a negative impact on the
working conditions of an individual and that cannot be imposed
based on an individual's membership in a protected class
Equal Employment Opportunity Commission (EEOC): federal
agency responsible for the enforcement of Title VII and a
number of other federal anti-discrimination laws
Disparate treatment claim: employment discrimination claim
alleging that an employer engaged in intentional discrimination
Disparate impact claim: employment discrimination claim
alleging that an employer implemented a practice or policy that
was neutral on its face but that resulted in an adverse impact on
members of a protected class
 Title VII prohibits workplace
discrimination based on certain
protected classes, and it relates to
all terms and conditions of employment.
What is a Protected Class?

• A protected class is a group of people who share a

common characteristic(s) that entitles them to
protection from discriminatory or harassing conduct.
• The prohibition of workplace conduct based on
protected class membership relates to:
 Membership in a protected class
 Stereotypes associated with a protected class
 An individual’s marriage to or association with
someone who is a member of a protected class
What Are the Protected Classes
under Title VII?
Title VII of the Civil Rights Act of 1964 prohibits workplace
discrimination based on race, color, religion, sex, national
origin, and genetics.
 Discrimination Relates to Membership
in a Protected Class
AND
Traits Associated with Membership
in a Particular Class
• Louisiana state law also prohibits discrimination based on:
• Race
• Color
• National origin
• Religion
• Sex (including pregnancy, childbirth, and related medical conditions for
employers with more than 25 employees)
• Disability: physical or mental
• Age (40 and older)
• Citizenship status
• Genetic information
• Sickle cell trait
Employment Discrimination Relates
to All Terms and Conditions of
Employment
• Hiring • Testing
• Firing • Use of company facilities
• Compensation • Training and
• Work assignments apprenticeship programs
• Classification of • Allocation of fringe
employees benefits
• Transfers, promotions, • Retirement benefits
layoffs, or recalls • Disability leave
• Job postings • All other terms and
• Recruiting conditions of
employment
Which Companies are effected?
• Under federal law, companies with 15 or more employees are covered
by Title VII, the primary law prohibiting employment discrimination,
the Americans with Disabilities Act, which prohibits discrimination on
the basis of disability, and the Genetic Information Nondiscrimination
Act, which prohibits discrimination based on genetic information.
• Companies with 20 or more employees are subject to the Age
Discrimination in Employment Act (ADEA), the federal law that
prohibits discrimination against employees 40 years or older.
• Companies with 4 or more employees must comply with the
employment discrimination provisions of the Immigration Reform and
Control Act, which prohibits discrimination on the basis of citizenship
status.
• All companies of any size must pay men and women equally for doing
equal work, by virtue of the Equal Pay Act.
• In Louisiana, companies with 20 or more employees are subject to the
state's antidiscrimination law.
Filing a Claim under Title VII

• Equal Employment Opportunity Commission (EEOC)

• Statute of limitations
• One hundred and eighty (180) days
• Triggering event for compensation claims under the
Ledbetter Fair Pay Act of 2009
• EEOC response to the filing of a claim
• https://www.eeoc.gov/employees/howtofile.cfm

 
Remember:

Discrimination May Be
Intentional (Disparate Treatment)
Or
Unintentional (Disparate Impact)
Types of Evidence

Direct evidence:
information that is clear proof that particular conduct
occurred that proves discrimination has occurred

Circumstantial evidence:
information that suggests particular conduct occurred
but that does not prove it definitively
Framework for Disparate
Treatment Claim
(Intentional Discrimination)
Established by McDonnell Douglas
• Prima Facie case (Latin for “on it’s face” or “at first look”)
• Employer must articulate a legitimate,
nondiscriminatory reason for its decision
• Employee (or candidate) must show the reason is a
pretext (not true)
Framework for Disparate Treatment
Claim Intentional Discrimination)

Prima Facie case

For legal scholars a prima facie case is one where the
prosecution, plaintiff, or claimant must prove each element
of their case or in the case of criminal proceedings the
crime. I
f it can be shown by the opposing party or by a lack of
actual grounds that the party bring the action will in all
likelihood fail to prevail in court the case may be dismissed.
If the case has merit and the opposing party introduces
other evidence or asserts an affirmative defense it can only
be reconciled with a full trial.
The introduction of prima facie evidence is sometimes
informally called making a case or building a case
Framework for Disparate Treatment Claim
(Intentional Discrimination)
• McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) is a US employment law case by the 
United States Supreme Court regarding the burdens and nature of proof in proving a Title VII case and the
order in which plaintiffs and defendants present proof

• McDonnell Douglas was an aerospace company in St. Louis at the time of the lawsuit, but has since been
acquired by Boeing. Percy Greenwas a black mechanic and laboratory technician laid off by McDonnell
Douglas in 1964 during a reduction in force at the company.

• Green, a long-time activist in the civil rights movement, protested that his discharge was racially motivated.
He and others, in a protest referred to in the case history as a "stall-in", used cars to block roads to
McDonnell Douglas factories. On one occasion, someone used a chain to lock the front door of a McDonnell
Douglas downtown business office, preventing employees from leaving, though it was not certain whether
Green was responsible.

• Soon after the locked-door incident, McDonnell Douglas advertised for vacant mechanic positions, for which
Green was qualified. Green applied, but was not hired, with McDonnell Douglas citing his participation in
blocking traffic and chaining the building.

• Green subsequently filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging
that he had been treated unfairly because of his activity in the Civil Rights Movement, but not alleging any
outright racial bias. He then sued in U.S. District Court on both of those grounds, though the EEOC had not
made a finding on the latter, and later appealed the decision to the 
U.S. Court of Appeals for the Eighth Circuit before the Supreme Court agreed to hear the case.
Framework for Disparate Treatment Claim
(Intentional Discrimination)
• The case was argued in front of the U.S District Court, the U.S. Court of Appeals, and
in front of the Supreme Court by Louis Gilden, a leading civil rights attorney and solo
practitioner from St. Louis. The Supreme Court's decision was awarded to Green in a
9-0 vote.

• Judgment The Supreme Court held the following, delivered by Justice Powell.
• A complainant's right to bring suit under the Civil Rights Act of 1964 is not confined to
charges as to which the EEOC has made a reasonable-cause finding, and the District
Court's error in holding to the contrary was not harmless since the issues raised with
respect to 703 (a) (1) were not identical to those with respect to 704 (a) and the
dismissal of the former charge may have prejudiced respondent's efforts at trial.
• In a private, non-class-action complaint under Title VII charging racial employment
discrimination, the complainant has the burden of establishing a prima facie case,
which he can satisfy by showing that
• (i) he belongs to a racial minority;
• (ii) he applied and was qualified for a job the employer was trying to fill;
• (iii) though qualified, he was rejected; and
• (iv) thereafter the employer continued to seek applicants with complainant's
qualifications.
Framework for Disparate Treatment Claim
(Intentional Discrimination)
• Here the Supreme Court surmised that the Court of Appeals,
• Correctly held that respondent proved a prima facie case,
• But erred in holding that petitioner had not discharged its burden
of proof in rebuttal by showing that its stated reason for the
rehiring refusal was based on respondent's illegal activity.
• On remand respondent must be afforded a fair opportunity of
proving that petitioner's stated reason was just a pretext for a
racially discriminatory decision, such as by showing that whites
engaging in similar illegal activity were retained or hired by
petitioner.
• Other evidence that may be relevant, depending on the
circumstances, could include facts that petitioner had
discriminated against respondent when he was an employee or
followed a discriminatory policy toward minority employees.
Disparate Treatment Claims
(Intentional Discrimination)
  Prima Facie Case 
• Membership in a protected class 
• Qualified for the position
• Adverse action
• Candidates with comparable qualifications continue to be
considered
Legitimate Non-Discriminatory
Basis for Adverse Decision
• Inability to perform the
work
• Inability to work the
schedule needed by the
employer
• Injuring a co-worker
• Falsifying time sheets or
other documentation
• Failing to meet
production requirements
• Insubordination
• Reduction in workforce
(provided the reduction
is not based on
discriminatory reasons)
• Refusal to follow
managerial directives
• BFOQ (bona fide
occupational
qualification)
Bona Fide Occupational
Qualification (BFOQ)
• Defense to a discrimination claim that illustrates the
business necessity of considering an individual’s protected
class status
• Race and color are never a BFOQ.
• Customer preference is not a BFOQ.
• Narrowly applied:
• Safety
• Privacy
• Religion (maybe as priest, but not as bookstore clerk)
 
Pretext

Once an employer presents its reason for the adverse

decision, the burden of proof shifts back to the individual
asserting the claim to show that the provided reason is
actually a pretext (a cover-up) for the employer’s true
discriminatory motives.
Pretext Plus

• The Supreme Court, in 1993, introduced the

“pretext-plus” component of a discrimination claim.
• After showing that the employer’s asserted
nondiscriminatory reason for the adverse decision
is a pretext, the employee has an additional obligation
(“the plus”) to show that consideration of an individual’s
membership in a protected class was the motivating
factor behind the adverse decision.
• Prima facie case may be sufficient to satisfy this
additional burden.
Mixed-Motive Claims

• Refers to a decision based on both legitimate and

discriminatory factors.
• The issue is whether an employer would have reached
the same conclusion absent consideration of the
discriminatory factor.
• Mixed-motives do not impact liability, but can impact the
amount of a damage award.
Disparate Impact
(Unintentional Discrimination)
Established by Griggs vs. Duke Power
• Prima Facie case (simplified)
• Some specific employment practice, policy, or test has
a disproportionate adverse impact on a protected
class.
• Employer must present a showing of business necessity
• Employee (or applicant) must show a less discriminatory
alternative
Permitted Discriminatory Conduct

• Work production
• Bona fide seniority systems
• Professionally developed tests
• Bona fide occupational qualification (BFOQ)
(only for decisions based on religion, sex, or
national origin, not for race or color)
Retaliation

Imposition of an adverse action in response to assertion of a

legal right
 
 

Types of retaliation claims

 

• Protected activity
• Opposition claims
• Participation claims
Types of Damages

• Back pay (wages lost as a result of the unlawful

conduct)
• Front pay (future wages from the time of a judgment
until reinstatement, or until a certain date if
reinstatement is not possible)
• Hiring, reinstatement, or promotion of an individual
• Providing a reasonable accommodation
• Other actions that would make the individual whole,
meaning that the individual would be placed in the
same position she would have been in had the
discriminatory conduct not occurred
Expanded Damages

• Compensatory damages: damages awarded to an individual

in recompense for actual losses suffered based on a finding
of intentional discrimination
• Punitive damages: damages awarded to an individual that
are designed to punish an employer for inappropriate
conduct

Statutory caps on damages under Title VII

• $50,000 for employers with 15 to 100 employees
• $100,000 for employers with 101 to 200 employees
• $200,000 for employers with 201 to 500 employees
• $300,000 for employers with more than 500 employees
Considerations that May
Impact a Damage Award
• Employee’s obligation to mitigate damages
• Legitimate, nondiscriminatory reason for the adverse
decision
 Mixed motive
 After-acquired evidence rule
• Employer exerts reasonable efforts to comply with the
law