Legal Strategies

Karen Bovard, Johnson & Johnson Law Office:
What Employers Need To Know about Title VII

May 23, 2018

Title VII of the 1964 Civil Rights Act bars discrimination in hiring, firing and other employment practices. These include compensation, classification, training and opportunities for advancement.

Although this statute is directed at businesses with 15 or more full- time employees, all businesses, regardless of size, should comply with this law as a best practice. Protected classes include race, color, biological sex, creed or religion, national origin or ancestry, genetic information, age, veteran status, citizenship, and physical or mental disabilities. Government employment and many states also include gender identity, financial status and sexual orientation as protected classes.

To prove discrimination, the employee or applicant must demonstrate four elements to establish a prima facie case under Title VII:

  • The employee is in a protected class.
  • The employee was qualified for the position. If the applicant weren’t hired, he would show that he met the job requirements. If an employee were fired, he would show that he was performing the job and meeting the employer expectations.
  • The employee was rejected for the position – not hired, not promoted or fired.
  • Someone outside the protected class was selected for the position or the employer continued to look for other candidates.

If an employee presents evidence of each element, the burden switches to the employer to demonstrate that the decision was not discriminatory. The employer must show evidence of a legitimate, nondiscriminatory motive for the action. For example, if an individual were fired or not promoted, the employer can present evidence of poor performance or misconduct. If an applicant claims she was not hired because she is a woman, the employer might show that she was not qualified, or that another woman was selected for the position.

The employee then has an opportunity to show that the employer’s evidence is a pretext – inaccurate and masking the true discriminatory motive. In a misconduct case, the employee may want to show that other employees outside the protected class engaged in the same behavior and were not fired. The employee has to prove the discrimination, the employer must only present a legitimate business motive that was not discriminatory as the basis for its actions.

While discrimination may occur by negligent hiring and employment practices, new, more subtle forms of discrimination are emerging.

Employers and managers are often unaware of their own biases and how they can affect decisions. The bias, called “similar to me,” is people naturally like people who are similar to them and this extends to appearance and background. Employers may want to follow a structured interview format – same set of questions for every candidate asked in the same order – to help compare candidates without bias.

Increasing levels of global migration have significantly altered patterns of racial discrimination against migrant workers and citizens of foreign origin. It is the perception of these workers as foreigners – even when they are not – that may lead to discrimination against them. Likewise, the number of disabled individuals is rising, leading to discrimination in the form of the denial of opportunities, both in the workplace and in education and training. Sex discrimination persists. Religious discrimination is increasing. And concerns over age discrimination are also growing.

The workplace is the primary battleground for fighting discrimination. When people with different backgrounds and characteristics are treated fairly, it benefits the employer in attracting better employees while protecting the employer from discrimination lawsuits.

Published by The Business Journal, Youngstown, Ohio.