FEDERAL ANTI-EMPLOYMENT DISCRIMINATION LAWS

FEDERAL ANTI-EMPLOYMENT DISCRIMINATION LAWS by Delner Franklin-Thomas Regional Attorney Miami District Office U.S. Equal Employment Opportunity Commission 1

TABLE OF CONTENTS I. INTRODUCTION... 4 II. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. 2000E ET. SEQ.... 4 A. THE LAW...4 B. COVERED ENTITIES...4 1. Employers Statutorily Excluded from Scope of Title VII...4 C. PROTECTED CLASSES...5 1. RACE AND COLOR DISCRIMINATION...5 2. RELIGIOUS DISCRIMINATION...6 3. SEX DISCRIMINATION...6 4. NATIONAL ORIGIN DISCRIMINATION...8 D. PROVING TITLE VII DISCRIMINATION...8 1. Disparate Treatment...9 2. Mixed Motive Cases...11 3. Disparate Impact... 11 4. Statutory Defenses Available Under Title VII...12 E. REMEDIES FOR VIOLATION OF TITLE VII...13 1. Back Pay With Interest...12 2. Reinstatement...13 3. Front Pay...13 4. Compensatory Damages...13 5. Punitive Damages...14 6. Attorneys Fees...14 7. Injunctive Relief...14 F. PROCEDURAL REQUIREMENTS...14 III. ADEA... 14 A. THE LAW...14 B. COVERED ENTITIES...15 C. STATUTORY EXCEPTIONS...16 D. REMEDIES FOR VIOLATION OF ADEA...16 1. Back Pay With Interest...16 2. Reinstatement...16 3. Front Pay...16 4. Liquidated Damages...16 5. Attorneys Fees...17 6. Injunctive Relief...17 E. PROCEDURAL REQUIREMENTS...17 IV. THE EQUAL PAY ACT... 17 A. THE LAW...17 B. PERSONS PROTECTED...17 C. ESTABLISHING AN EPA CLAIM...18 2

D. STATUTORY EXEMPTIONS (DEFENSE)...18 E. REMEDIES FOR VIOLATION OF THE EPA...18 1. Back Pay With Interest...18 2. Liquidated Damages...19 3. Attorneys Fees...19 4. Injunctive Relief...19 F. PROCEDURAL REQUIREMENTS...19 V. RETALIATION... 19 VI. SECTION 1981, 42 U.S.C. 1981... 20 VII. STATE ANTI-DISCRIMINATION LAWS... 20 3

I. INTRODUCTION The purpose of this paper is to summarily acquaint you with some of the major Federal Anti- Employment Discrimination Laws. Specific areas of discussion will include Title VII, the Age Discrimination in Employment Act ( ADEA ), the Equal Pay Act ( EPA ) and the Civil Rights Act of 1981. 1 II. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. 2000E ET. SEQ. A. THE LAW Title VII of the Civil Rights Act of 1964, prohibits employment discrimination on the basis of race, color, sex, religion, or national origin. Specifically, Title VII prohibits discrimination in hiring, firing, promotion, wages, job assignments, fringe benefits, and other terms and conditions of employment. B. COVERED ENTITIES Title VII coverage encompasses private employers with 15 or more employees as well as federal, state and local government employers. Title VII also prohibits employment agencies from discriminating when they refer people for jobs, and it prohibits unions from discriminating with regards to their membership. Finally, 42 U.S.C. 2000e(b) defines employer to include any agent of an employer. 1. Employers Statutorily Excluded from Scope of Title VII Bona fide membership clubs and Indian tribes are expressly excluded from Title VII s definition of an employer. 42 U.S.C. 2000e(b). Additionally, religious organizations, although recognized as employers, are permitted to discriminate with respect to religion in the hiring of individuals. This partial exemption for discrimination on the basis of religion does not apply to the other protection afforded by Title VII. Religious organizations are not free to discriminate in employment on the basis of race, color, sex, national origin, age, or disability. 1 The Americans With Disabilities Act ( ADA ) a major federal anti-employment discrimination law will not be addressed in this paper. It will be addressed in the paper submitted by Daniel O. Cohen, Esquire, one of the Basic Employee Rights and Responsibilities Panelist. 4

C. PROTECTED CLASSES Title VII prohibits employment discrimination on the basis of race, color, sex, religion, or national origin. 1. RACE AND COLOR DISCRIMINATION Title VII protects individuals against discrimination because of the individual s race or color. This prohibition against race or color discrimination includes all races (whites or blacks) as well as preference for white or light toned persons of any race. See e.g. Walker v. Secretary of Treasury, IRS., 713 F. Supp 403 (N.D. Ga.) ( Court held that light skinned black employee stated a cognizable claim of color discrimination against employer where dark skinned black supervisor allegedly subjected light skinned black to different terms and conditions of employment because of her color.) Protections afforded under Title VII prohibition against race discrimination encompasses discrimination grounded upon racial stereotypes and assumptions about abilities and traits. Discrimination grounded upon characteristics associated with race such as hair texture or certain facial features is also a violation of Title VII. It is also unlawful discrimination to deny equal employment opportunities to employees because of their marriage to or association with an individual of a different race, or membership in or association with ethnic based organizations or groups. Neither the discriminator nor the beneficiary of the discrimination have to be outside the protected class of the victim. In re Lewis, 845 F. 2d 624 (6 th Cir. 1988) Everyone in the victim s protected class does not have to experience discrimination in order for the victim to establish a violation of Title VII. See Graham v. Bendix Corp., 42 FEP at 1458 (citing Furnco Construction Co v. Waters, 438 U.S. 567, 579 (1978) where court state The duty not to discriminate is owed each minority employee, and discrimination against one of them is not excused by a showing that the employer did not discriminate against all of them, or there was one he did not abuse. Harassment on the basis of race and color also violates Title VII. Specifically, ethnic slurs, racial jokes, offensive or derogatory comments or other verbal 5

or physical conduct based on an individual's race or color constitutes unlawful harassment if the conduct creates an intimidating, hostile, or offensive working environment, or interferes with the individual s work performance. 2. RELIGIOUS DISCRIMINATION Title VII prohibits employers from discriminating against employees because of their religion. This protection extends to all aspects of an employee s religious observance and practices, as well as belief. Title VII also expressly requires the employer to accommodate the religious practices of employees unless doing so causes an undue hardship. 42 U.S.C. 2000e(j); See also Transworld Airlines, Inc. v. Hardsen, 432 U.S. 63 (1977). Flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers are examples of ways an employee may accommodate an employee s religious beliefs. 3. SEX DISCRIMINATION Title VII prohibition against sex discrimination includes (1) discrimination against an employee because of the employee s gender (2) subjecting an employee to sexual harassment, and (3) discriminating against an employee on the basis of pregnancy or pregnancy related benefits. Both men and women can be victims of sex discrimination. a. Gender Discrimination is the implementation of a work rule that applies only to women or only to men. i. No-children rule applied only to women, may constitute gender discrimination. Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971). ii. Providing different health insurance, retirement, or other fringe benefits to women than to man. City of Los Angeles Department of Water and Power v. Manhurst, 435 U.S. 702 (1978). 6

b. Sexual Harassment in the work place is prohibited by Section 703 of Title VII. There are two recognized types of sexual harassment: quid pro quo and hostile environment. Quid Pro Quo harassment may be established by showing that submission to or rejection of unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature is used as the basis for employment decisions. 29 C.F.R. 1604.11(a)(1) and (2). Hostile Environment sexual harassment may be established by showing unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature unreasonably interferes with an individual s work performance, or creates an intimidating, hostile, or offensive working environment. 29 C.F.R. 1604.11 (a)(3). c. Pregnancy discrimination became a recognized form of sex discrimination in 1978 with the passage of the Pregnancy Discrimination Act. Discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII. i. An employer cannot refuse to hire a woman because of her pregnancy related condition as long as she is able to perform the essential functions of the job. ii. Employers must hold open a job for a pregnancy related absence the same length of time jobs are held open for employees on sick or disability leave. 4. NATIONAL ORIGIN DISCRIMINATION Discrimination on the basis of National Origin is prohibited under Title VII. This prohibition includes discrimination against an individual: i. because of the individual s or his ancestor s place of origin. ii. because of the physical cultural or linguistic characteristics of a national origin group. 7

iii. because of the individual s association with persons of a certain national origin group (i.e. marriage to a person of a particular national origin). iv. because of the individual s accent where employer cannot establish that: i. ability to communicate materially relate to the ability to perform the job, and ii.. the person s accent actually interferes with the performance of the job. A rule requiring employees to speak only English while at work may also constitute National Origin Discrimination unless the employer can establish the speak English only rule is critical for business purposes. Harassment grounded upon an individuals National Origin is also prohibited under Title VII. National origin harassment is established by showing that an individual is subjected to ethnic slurs, or other verbal or physical conduct because of the individual s nationality and such harassment creates an intimidating, hostile, or offensive working environment, that unreasonably interfere with the individual s work performance or negatively affects an individual s employment opportunities. D. PROVING TITLE VII DISCRIMINATION Over the years, the federal courts have attempted to classify claims under Title VII into two major categories: Disparate Treatment claims and Disparate Impact claims. While the two are not mutually exclusive, i.e. a plaintiff may allege both theories at the same time in an action where appropriate, the legal principles applicable to each type of claim differ. 1. Disparate Treatment Disparate treatment claims are often referred to as claims alleging intentional discrimination. As is the case in most civil trials where intent needs to be shown, proof of intentional acts can be established by direct or circumstantial evidence. a. Direct Evidence of Intentional Acts Direct evidence of discrimination may include a written or verbal policy or statement made by an employer or an employer s 8

representative that on its face substantiates bias against a protected group and the policy or comment can be linked to the adverse employment action. b. Circumstantial Evidence When faced with claims of discrimination based on circumstantial evidence, the courts employ a three-prong analysis. First, the plaintiff must provide sufficient evidence from which a legal inference of discrimination can be made. This is done by satisfying the so-called McDonnell Douglas prima facie case test. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972), the Supreme Court set forth four elements the plaintiff needs to satisfy to establish a prima facie case of discrimination: The plaintiff belongs to a protected group under Title VII; The plaintiff applied and was qualified for a job for which the employer was seeking applicants; Despite his/her qualifications, the plaintiff was rejected. And After the rejection of the plaintiff, the position remained open and the employer continued to seek applications from persons of complainant s qualifications. Of course, the four elements described in McDonnell Douglas will vary somewhat depending upon the specific facts of the case. Second, if the plaintiff succeeds in establishing its prima facie case, the defendant employer can rebut the presumption of a discriminatory motive by articulating a legitimate nondiscriminatory reason for its action. Third, if the employer articulate a legitimate nondiscriminatory reason for its action, the plaintiff can nevertheless prevail on its claim by either showing that the defendant s articulated reason was not the true reason (in other words the defendant s articulated rationale is a pretext). The Title VII plaintiff may show pretext in a number of ways including: 9

(1) Proof that the employer offered a rationale which it knew was false; (2) Proof that similarly situated individuals of a different class were treated differently than the complainant; (3) Evidence of bias; or (4) Statistical evidence. Some examples of employment practices that have been found to have an adverse impact case are (1) Minimum Height Requirements Minimum height requirements have been found by many courts to disproportionately screen out women and people of various national origins, such as Hispanics and Asians. (2) No Beard Policy Requirements that employees be clean-shaven have been found to have adverse effect on Black men who are disproportionately affected by a medical condition that is aggravated by shaving. (3) Certain Educational requirements Educational requirements, such as requirements that employees have a high school diploma, have been found in some cases to have an adverse impact on certain protected groups. Once an employee has established that a particular employment practice has an adverse impact, it will be considered a violation of Title VII unless the employer can prove that it is job related and consistent with business necessity. For example, a court upheld a fire department s no beards rule based on the departments showing that the fire fighters must be clean shaven in order to wear the respirators required to be able to breathe in smoke-filled environments. 10

2. Mixed Motive Cases Congress has clarified that an employer can be liable under Title VII in mixed motive cases (i.e. cases in which the employer had both a legitimate, nonpretextual reason and a non-legitimate, unlawfully discriminatory rationale for an employment decision impacting the employee). Congress, however, limited the damages available in mixed motive cases. 3. Disparate Impact A complainant may also prevail on its Title VII action by showing that an employer s practice or policy, although not adopted with a discriminatory intent, in practice has a substantial discriminatory affect upon a protected class. The typical court analysis of a disparate impact claim proceeds in threestages: (a) (b) (c) First, the court determines whether a particular employment practice has disproportionately affected members of a protected group. Second, if a disproportionate impact is proven, the employer may then offer evidence to prove that the practice is job related and consistent with business necessity. If the employer fails to make this showing, the complainant will prevail. Third, even if the employer shows that the practice is job related and consistent with business necessity, the complainant may still prevail. In that case, the complainant may prevail by showing that there is an alternative practice or policy that would serve the employer s legitimate business goals while reducing the adverse impact caused by the current practice or policy. 4. Statutory Defenses Available Under Title VII a. Bona Fide Occupational Qualification ( BFOQ ) Section 42 U.S.C. 2000e-2(e)(1) provides: that it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify, or refer for employment any individual, or 11

for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. The Bona Fide Occupational Qualification exception is a complete defense to excluding employees due to sex, religion and national origin. Court weighing the defense generally look to three elements which the party asserting the defense must prove: (1) members of the excluded class could not safely and effectively perform the essential job duties; (2) a factual basis for believing that all or substantially all members of the excluded class cannot perform the essential job function; and (3) Exclusion of members of the protected class must be reasonably necessary to the operation of the business. E. REMEDIES FOR VIOLATION OF TITLE VII An employer or other covered entity that is found to have violated Title VII may be required to provide any or all of the following remedies: 1. Back Pay With Interest Back pay is the amount of money (including benefits) that the employee would have earned but for the employer s discriminatory conduct. 2. Reinstatement The employer may be required to give the employee the job that he/she would have but for the discrimination. In appropriate circumstances this could include requiring the employer to hire or promote the individual discriminated against. 12

3. Front Pay Front Pay may be required in situations where the employee was not hired or was terminated and the employer currently has no vacancy. The employer may be required to pay until a vacancy occurs. Front Pay has also been awarded in lieu of reinstatement in situations where hostility between the employer and employee would make the employment relationship difficult and ineffective. 4. Compensatory Damages 2 Victims of intentional employment discrimination may be entitled to compensatory damages for monetary (past and projected out of pocket losses) and non-monetary (emotional harm) suffered as a result of the discrimination. 5. Punitive Damages Punitive Damages may also be awarded against non-governmental employers, where the discrimination was undertaken with malice or reckless indifference to the complainant s rights. 6. Attorneys Fees Prevailing victims of employment discrimination may also recover reasonable attorney fees expended in the advancement of their employment discrimination claims. 7. Injunctive Relief Injunctive relief may encompass monitoring of the employer s employment practices, management and employee training, anti-discrimination postings, and a court order prohibiting future discrimination. 2 Compensatory and punitive damages awarded under Title VII may range from $50,000 to $300,000 depending upon the size of the employer. 13

F. PROCEDURAL REQUIREMENTS Claims of discrimination brought pursuant to Title VII must be filed with the Equal Employment Opportunity Commission ( EEOC ) within 180 days of the alleged discriminatory act, or within 300 days in geographical areas where there is a State or Local Fair Employment Practice Agency that handles the type of discrimination alleged. Because the vast majority of states and local governments have such agencies, the 300-day limit applies in most areas of the country. The EEOC is the federal government agency empowered with the authority to enforce Title VII, ADEA, EPA and the ADA. Employees may rely on EEOC to investigate and resolve their employment discrimination claim or employees may seek relief via the courts within 180 days after filing with the EEOC by requesting a Right to Sue. III. ADEA A. THE LAW The ADEA prohibits discrimination in hiring, firing, promotion, wages, job assignments, fringe benefits and other terms and conditions of employment. B. COVERED ENTITIES The ADEA coverage encompasses private employers with 20 or more employees as well as federal, state and local government employers. The ADEA also prohibits employment agencies from discriminating when they refer people for jobs, and it prohibits unions from discriminating with regards to their membership. C. STATUTORY EXCEPTIONS 1. Bona Fide Occupational Qualification. A Bona Fide Occupational Qualification is a complete defense to Age Discrimination. An employer asserting a Bona Fide Occupational Qualification defense has the burden of proving that; (1) the age limit is reasonable necessary to the operation of the business; (2) all or substantially all individual excluded from the job involved are in fact disqualified; and (3) that some of the individuals so excluded possess a disqualifying trait that cannot be ascertained except by reference to age. 14

2. Waiver of ADEA Rights At an employer s request, an individual may agree to waive his/her rights or claims under the ADEA. However, the ADEA, as amended by OWBPA, sets out minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver: (1) must be in writing and be understandable; (2) must specifically refer to ADEA rights of claims; (3) may not waive rights or claims that may arise in the future; (4) must be in exchange for valuable consideration; (5) must advise the individual in writing to consult an attorney before signing the waiver; and (6) must provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it. In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are most extensive. D. REMEDIES FOR VIOLATION OF ADEA An Employer or other covered entity that is found to have violated the ADEA may be required to provide the following remedies: 1. Back Pay With Interest Back pay is the amount of money (including benefits) that the employee would have earned but for the employer s discriminatory conduct. 2. Reinstatement The employer may be required to give the employee the job that he/she would have but for the discrimination. 3. Front Pay Front Pay may be required in situations where the employees was not hired or was terminated and the employer currently has no vacancy. The employer may be required to pay until a vacancy occurs. Front Pay has also been awarded in lieu of reinstatement in situations where hostility between the 15

employer and employee would make the employment relationship difficult and ineffective. 4. Liquidated Damages The employee may recover liquidated damages in an amount equal to the back wages upon a showing that the ADEA violation was willful. To establish willfulness, the employee must substantiate that the employer knew or showed reckless disregard for whether conduct was prohibited by the ADEA. The employee is not required to show that the employer s conduct was outrageous, or provide direct evidence of the employer s motivation. Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). An employer can avoid liquidated damages if it can show it acted in good faith and with reasonable grounds to believe that it was not violating the law. 5. Attorneys Fees Prevailing victims of employment discrimination may also recover reasonable attorney fees expended in the advancement of their employment discrimination claims. 6. Injunctive Relief Injunctive relief may encompass monitoring of the employer s employment practices, management and employee training, anti-discrimination postings, and a court order prohibiting future discrimination. E. PROCEDURAL REQUIREMENTS Claims of discrimination brought pursuant to the ADEA must be filed with the Equal Employment Opportunity Commission within 180 days of the alleged discriminatory act (within 300 days in states that can act under their own age discrimination laws). The EEOC is the federal government agency empowered with the authority to enforce Title VII, ADEA, EPA and the ADA. Employees may rely on EEOC to investigate and resolve their employment discrimination claim or seek relief via the courts within 60 days after filing with the EEOC. 16

IV. THE EQUAL PAY ACT OF 1963, 29 U.S.C. 206(D) A. THE LAW The EPA requires employers to pay men and women equal pay for equal work being performed under similar working conditions within the same establishment. B. PERSONS PROTECTED The EPA applies only to wage discrimination between men and women. Though the EPA was initially enacted to address historical wage disparity suffered by women performing the same job as men, men may also allege a violation of the Equal Pay Act. C. ESTABLISHING AN EPA CLAIM When determining whether work is equal, the statute lists four separate elements of equality: the duties must involve skill that is equal in kind and nature, the duties must require equal effort, the two jobs must impose equal responsibility, and the work must be performed under conditions that are similar. Unless all four elements of quantitative equality are satisfied, the work will not be equal. One element cannot set off or balance against another to produce overall equality. Such balancing would involve general comparability, analysis. Thus, a job that requires great physical effort but little skill may not be equal. Remember: the same facts that make out an EPA claim may also create a Title VII cause of action for discrimination on the basis of one of the protected categories. See County of Washington v. Gunther, 452 U.S. 161 (1981). D. STATUTORY EXEMPTIONS (DEFENSE) The EPA allows for four circumstances in which men and women may be paid unequal wages for work that is equal. Specifically, the statute provides that unequal wages are permissible when grounded upon: 17

(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor than sex. E. REMEDIES FOR VIOLATION OF THE EPA An Employer or other covered entity that is found to have violated the EPA may be required to provide the following remedies: 1. Back Pay With Interest Back pay is the amount of money (including benefits) that the employee would have earned but for the employer s discriminatory conduct. 2. Liquidated Damages The employee may recover liquidated damages in an amount equal to the back wages upon a showing that the EPA violation was willful. To establish willfulness, the employee must substantiate that the employer knew or showed reckless disregard for whether conduct was prohibited by the EPA. 3. Attorneys Fees Prevailing victims of employment discrimination may also recover reasonable attorney fees expended in the advancement of their employment discrimination claims. 4. Injunctive Relief Injunctive relief may encompass monitoring of the employer s employment practices, management and employee training, anti-discrimination postings, and a court order prohibiting future discrimination. F. PROCEDURAL REQUIREMENTS Unlike Title VII, the EPA imposes no procedural requirements that must be satisfied before a law suit under its provisions can be initiated. 18

V. RETALIATION All of the anti-discrimination statutes discussed above contain broad provisions prohibiting retaliation by an employer, employment agency, or labor organization against an individual because she or he has either: 1) opposed an unlawful employment practice; or 2) made a charge, testified, assisted or participated in an investigation, proceeding, or hearing under the relevant statute. The manner in which an individual protests perceived employment discrimination must be reasonable in order for the anti-retaliation provisions to apply. However, it is well settled that a violation of the retaliation provisions can be found whether or not the challenged practice ultimately is found to be unlawful. Similarly, the retaliation complained of need no materially affect the terms or conditions of employment to constitute retaliation, and an employee can challenge retaliation by an employer even if the retaliation occurred after their relationship ended. The employee can also challenge retaliation by an employer based on his or her protected activity involving a different entity, or based on protected activity by someone closely related to the employee such as a spouse. VI. SECTION 1981 DISCRIMINATION, 42 U.S.C. 1981 Section 1981 anti-employment discrimination provision prohibits discrimination in the making and enforcement of contracts, because of race. The make and enforce language of Section 1981 includes the making performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship. Unlike Title VII there is no limit on the amount of monetary recovery that can be awarded for violations of Section 1981. VII. STATE ANTI-DISCRIMINATION LAWS Most states also have anti-discrimination laws similar to the Federal anti-discrimination laws. Additionally, many state anti-discrimination laws are broader in scope than the federal laws. (i.e. Florida law that prohibits discrimination on the basis of marital status). 19