The HR Specialist

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.

Caution: It’s more important than ever to independently check supervisors’ disciplinary recommendations to ensure they have no ulterior motives, in light of a U.S. Supreme Court ruling in 2011:

The court said an employer can be found liable for the discriminatory intent of supervisors who influence—but don’t ultimately make—an adverse employment decision. The justices concluded that a member of the military reserves had been fired from his job because of his bosses’ anti-military bias, even though the HR person who actually terminated him didn’t know that the supervisors were discriminating against him. (Staub v. Proctor Hospital, No. 09-400) The only way to avoid liability in such cases, the court said, is if an employer (1) conducts an independent investigation and (2) that investigation concludes that the decision was entirely justified regardless of the supervisor’s input.

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 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)

“Third-party” retaliation: In 2011, the U.S. Supreme Court widened the circle of people who can bring retaliation lawsuits under Title VII. The court said it was illegal for a company to retaliate against an employee who had filed a discrimination complaint by firing her fiancé, who worked at the same company. It said Title VII was clearly intended to protect everyone who might be harmed by retaliation, not just those who file discrimination complaints. (Thompson v. North American Stainless, No. 09-291)

The Thompson case has important implications for all employers, especially now that retaliation claims have surpassed race claims to become the No. 1 job discrimination complaint with the EEOC.

Oral complaints protected from retaliation: In 2011, the Supreme Court ruled that an employee’s Fair Labor Standards Act complaints don’t have to be written to be protected from retaliation by their employers. It said an employee’s oral complaints about his employer’s time clocks were just as valid as a written complaint. (Kasten v. Saint-Gobain Performance Plastics, No. 09-834)

It's now harder to sue for bias, retaliation

A pair of U.S. Supreme Court rulings handed down in 2013 will make it more difficult for employees to file lawsuits claiming job discrimination or retaliation:

1. New definition of “supervisor” in discrimination cases: The Supreme Court ruled that only someone with the power to take “tangible employment action” can be considered a “supervisor” in Title VII discrimination cases.

That’s an important distinction. By law, employers are typically presumed liable for discrimination caused by a supervisor. However, when it comes to discrimination between co-workers who have little power over one another, employers are liable only if management does nothing in response to bias complaints.

This ruling clarified exactly who is a “supervisor” in such cases. It said a supervisor must have the power to take a “tangible employment action” such as “to hire, fire, demote, promote, transfer, or discipline.” Now, anyone without that authority will be considered only a co-worker in Title VII lawsuits. Previously, most courts (and the EEOC) took the position that a supervisor was someone who was simply in a position to direct an employee’s work. (Vance v. Ball State University, No. 11-556)

2. Court sets higher bar for retaliation lawsuits: The Supreme Court said employees can win retaliation lawsuits only if they can prove their employer retaliated against them solely because of the employee’s protected activity. This decision could lead to fewer retaliation lawsuits against employers.

The questions before the Court:

  • Must an employee prove his protected status or activity was the only reason that he suffered retaliation? (That’s the so-called “but-for” standard, as in “But for the protected status or activity, would the employer have retaliated?”)
  • Or, can protected status or activity be just one of many motives for the retaliation? (The “mixed-motive” argument.)

The court decided that the first, more restrictive definition should be the standard. (University of Texas Southwestern Medical Center v. Nassar, No. 12-484)

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