Title VII of the Civil Rights Act of 1964

I. PURPOSE

The purpose of Title VII of the Civil Rights Act of 1964 (Title VII) is to “improve the economic and social conditions of minorities and women by providing equality of opportunity in the work place.” Specifically, Title VII makes it unlawful for employers to discriminate based on race, color, religion, sex, or national origin (RCRSN) when hiring, firing, or otherwise dealing with employees.

II. HISTORY

The Civil Rights Act of 1964 was initiated in June 1963 when President John F. Kennedy submitted a comprehensive civil rights’ bill to Congress in response to the mounting protests, tension, and violence surrounding the issue. Following President Kennedy’s assassination in November 1963, President Lyndon B. Johnson helped champion the bill.

After overcoming one of the longest Senate filibusters in United States’ history, the bill was signed into law by President Johnson on July 2, 1964.

III. APPLICABILITY TO BYU–HAWAII

Title VII of the Civil Rights Act applies to employers that are engaged in an activity, business, or industry affecting commerce who have fifteen or more employees. To the extent that BYU–Hawaii is an employer that affects commerce and has fifteen or more employees, BYU–Hawaii must follow Title VII.

IV. REQUIREMENTS

A. General Discrimination Ban

Employers may not refuse to hire, fire, or “otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of enjoyment, because of such individual’s race, color, religion, sex, or national origin[.]” This ban on discrimination by RCRSN also extends to any attempt to limit, segregate, or classify employees in a way that would deprive them of employment opportunities, or adversely affect their status as an employee in any way. Unless otherwise noted, an employment practice is unlawful if it is uses RCRSN as a motivating factor, even if there were other motivating factors contributing to that employment practice. Even so, validity studies concerning an employment practice may be conducted to determine if discrimination is occurring.

In addition, it is illegal for an employer to discriminate against an employee or applicant who “oppose[s] any practice made an unlawful employment practice” by Title VII, or who participated in an investigation, proceeding, or hearing under Title VII.

B. Exceptions — Preferential Treatment

If religion, sex, or national origin is a legitimate qualification “reasonably necessary to the normal operation of” a business or enterprise, it is lawful for that business or enterprise to hire and employ employees based upon those categories. This exception is known as a “bona fide occupational qualification” (BFOQ). Despite the allowance for preferential treatment in specific circumstances, the EEOC “believes that the [BFOQ] exception as to sex should be interpreted narrowly” and that “[t]he exception . . . that national origin may be a [BFOQ], shall be strictly construed.”

Title VII allows religious entities (including religious educational institutions) to prefer and hire employees of a particular religion without violating Title VII. Also, businesses and enterprises near or on Native American reservations may provide preferential treatment to Native Americans living on or near reservations if that employment practice is publicly announced. Nothing in the law is intended to “repeal or modify any Federal, State, territorial, or local law creating special rights or preference for veterans.”

Employers are not required to provide preferential treatment to any group or individual simply because that group or individual’s specific RCRSN is proportionally imbalanced in relation to some of the employers’ other groups of employees.

C. Guidelines

The EEOC has provided guidelines for discrimination based upon religion, sex, and national origin, as well as guidelines for appropriate affirmative action.

1. Religious Discrimination

Employers must accommodate the religious practices of employees and prospective employees unless an undue hardship for the employer would “result from each available alternative method of accommodation." Undue hardships include (1) increased costs (more than de minimis) caused by an employee’s absence from “his or her scheduled duty hours” or (2) having to depart “from a bona fide seniority system” to accommodate an employee’s religious practice when doing so would deny another employee “his or her job or shift preference guaranteed by that system.” The most frequent area of accommodation deals with work scheduling, which can be addressed by flexible work schedules and allowing employees to find substitutes or change assignments.

2. Sex Discrimination

i. Sex Discrimination in Employment Practices

Employers may not have separate seniority lists or lines of progression based on sex. If an employer rule forbids or restricts the employment of married women, and that policy is not the same for married men, that employer rule is discriminating based upon sex. In addition, it is not legal to indicate a preference, limitation, or discrimination based on sex while advertising for a job (unless sex is a BFOQ). Also, pre-employment inquiries about sex may not be discriminatory in any way. Employers cannot discriminate between males and females in regard to fringe benefits (such as medical, life, or retirement benefits). Any written or unwritten policy that excludes applicants or employees from employment “because of pregnancy, childbirth or related medical conditions” violates Title VII.

ii. Sexual Harassment

“Harassment on the basis of sex is a violation of” Title VII, and thus qualifies as sex discrimination. Sexual harassment consists of

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

Employers are responsible for sexual harassment they know about or should have known about, unless the employer can prove they took immediate corrective action. “Prevention is the best tool for the elimination of sexual harassment,” and could take the form of expressing disapproval, developing sanctions, providing sensitivity training, or informing employees how to raise harassment concerns.

3. National Origin Discrimination

Discrimination on the basis of national origin occurs when equal employment opportunities are denied to an individual because of their place of origin, their ancestor’s place of origin, or because that individual has the physical, cultural, or linguistic characteristics of a national origin group. Harassment because of national origin (such as ethnic slurs) is a violation of Title VII, and employers have the duty to keep their workplace free of such harassment.

4. Affirmative Action

“Affirmative action . . . means those actions appropriate to overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity.” Affirmative action is appropriate to correct employment practices, procedures, or policies that have an actual or potential adverse impact; the effects of prior discriminatory practices; or a labor pool that is artificially limited.

For employers, affirmative action is voluntary, but Congress encourages employers to take voluntary affirmative action. However, affirmative action plans can result from a court order or a settlement agreement. Affirmative action plans or programs must contain three elements: (1) self-analysis, (2) a basis for deciding if action is needed, and (3) reasonable action in response to problems disclosed by the self-analysis. The EEOC recommends that affirmative action plans be dated and in writing.

D. Merit-based Compensation

Employers may pay employees differently based upon (1) a “bona fide seniority or merit system,” (2) a system which measures production quantity or quality, (3) an employee’s location or (4) an ability test as long as such differences, systems, or tests are not designed and intended to discriminate in any way by RCRSN. Test scores for job applicants, or test scores used to consider promotions, may not be altered, adjusted, or have different cut offs based upon RCRSN.

E. Posting of Notices

All employers must post an EEOC notice about Title VII in conspicuous areas where employees and applicants will see the notice. The notice gives information on how employees can file a complaint. Employers who willfully refuse to post this notice can be fined up to $545 for each separate offense.

F. Effect on State Laws

Title VII does not exempt employers “from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State,” unless that state law requires or permits acts that would be unlawful practices as defined in Title VII.

G. Reports

On or before September 30 each year, employers with one hundred or more employees must submit Standard Form 100 (also known as “Employer Information Report EEO–1”) to the EEOC.48 Employers known to qualify as needing EEO–1 forms will receive blank copies of the forms from the EEOC, and the forms will come with instructions. The information required by the EEO–1 does not need to be based on records, and may be filled out by “visual surveys of the work force.”

Institutions of higher education with fifteen or more employees must biennially, on or before November 30, file copies of the Higher Education Staff Information Report EEO-6 with the EEOC.

H. Record Keeping

Any record an employer makes (records of hiring, promotion, lay-offs, rates of pay, etc.) must be kept for one year after taking the action or creating the record, whichever date is later. Institutions of higher education must keep personnel or employment records (such as records related to hiring, promotion, tenure, transfer, rates of pay, etc.) for two years after taking the action or creating the record, whichever date is later. In addition, institutions of higher education must keep a copy of Report EEO-6 for three years and make Report EEO-6 available to the EEOC upon request. If a charge of discrimination has been filed, all records pertaining to the charge must be kept until the “final disposition of the charge.”

I. Investigations

Employers who have a charge filed against them will be notified by the EEOC of the charge within ten days of the charge being filed and subsequently investigated by the EEOC.

During an investigation, employers must allow the EEOC or its designated representative to access and copy any evidence related to the unlawful employment practice being investigated. After an investigation, the employer must keep records related to the decisions of the investigation and make any reports to the EEOC as prescribed as a result of the EEOC’s investigation.

V. PENALTIES

An employer violating Title VII is liable to pay up to $300,000 in combined compensatory and punitive damages to each “complaining party” associated with the Title VII violation. In cases where the complaining party is seeking compensatory or punitive damages, either side may call for a jury trial.

VI. COMPLIANCE CALENDAR

Standard Form 100 (EEO–1) must be filed with the EEOC each year by September 30. Institutions of higher education must file Report EEO–6 with the EEOC every two years by November 30.

VII. RELATED MEMOS

Executive Order 11,246 (nondiscrimination regulations for government contractors)
Title IX of the Education Amendments of 1972 (sex discrimination in the work place)
Equal Pay Act of 1963 (discrimination in pay)
Lilly Ledbetter Fair Pay Act of 2009 (amends the statute of limitations for claims under Title VII)