The Civil Rights Act of 1964 and its progeny

The Civil Rights Act of 1964

Protected categories: Race, color, religion, sex, or national origin

Under Title VII of the Civil Rights Act of 1964, it is illegal for employers with 15 or more employees to discriminate on the basis of race, color, religion, sex, or national origin. Discrimination under Title VII applies to every aspect of the employment process, from job ads to postemployment references, and includes hiring, firing, promoting, placement, wages, benefits, and working conditions of anyone who is in one or more of the so-called protected categories under the statute.

Prohibited Activities

There are four types of illegal activities under this statute: disparate treatment, disparate impact, hostile environment, and retaliation.

Disparate Treatment

Prima facie: from the Latin, meaning "from its first appearance," something that appears to be true upon a first look.

To prove a disparate treatment case, the plaintiff must show that she was treated differently because of her sex, race, color, religion, or national origin.

The required steps in a disparate treatment case are:

1. The plaintiff presents evidence that the defendant has discriminated against her because of a protected trait.

2.The defendant must present evidence that its decision was based on legitimate, nondiscriminatory reasons.

3.To win, the plaintiff must now prove that the employer intentionally discriminated, although this motive can be inferred from differences in treatment.

Disparate Impact

Disparate impact applies if the employer has a rule that, on its face, is not discriminatory, but in practice excludes too many people in a protected group.

1. Plaintiff must present a prima facie case

2. Defendant must offer some evidence that the employment practice was a job-related business necessity.

3. To win, plaintiff must now prove either that the employer's reason is a pretext or that other, less discriminatory rules would achieve the same results.

The plaintiffs in Duke Power showed that the tests were not a job-related business necessity.

Griggs v. Duke Power Co. 401 U.S. 424, 91 S. Ct. 849, 1971 U.S. LEXIS 134, United States Supreme Court, 1971

Excerpts from Chief Justice Burger's Decision: Congress did not intend by Title VII to guarantee a job to every person regardless of qualifications. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.

The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice, which operates to exclude Negroes, cannot be shown to be related to job performance, the practice is prohibited.

On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted without meaningful study of their relationship to job performance ability. Rather, the requirements were instituted on the Company's judgment that they generally would improve the overall quality of the work force. The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria are now used.

[G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as "built-in headwinds" for minority groups and are unrelated to measuring job capability. Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.

History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the common sense proposition that they are not to become masters of reality.

Nothing in the Act precludes the use of testing or measuring procedures; obviously, they are useful. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract. The judgment of the Court of Appeals is reversed.

Reasoning: Under Title VII, employers may establish job requirements that exclude more blacks than whites, but only if the requirements are necessary to do that particular work. In this case, there was no evidence that either a high school diploma or the two tests bore any relationship to the job in question. Indeed, white employees without any of these qualifications had been doing the jobs well for years, and had even been promoted.

Whether or not Duke Power intended to discriminate is irrelevant. Title VII is concerned with the consequences of an employer's practices, not its motivation. The burden is on the employer to show that all job requirements have an important relationship to the work in question. Any tests must measure the person for the job and not the person in the abstract.

Hostile Work Environment

Sexual harassment: involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

Employers violate Title VII if they permit a work environment that is so hostile towards people in a protected category that it affects their ability to work. This rule applies whether the hostility is based on race, color, religion, sex, or national origin. Many people assume that race and color are the same, but this is not necessarily the case. Title VII prohibits behavior that discriminates against people due to the shade of color of their skin, even by people of the same race. (As we shall see, this rule also applies to those treated badly because of pregnancy, age, or disability.) This concept of hostile environment first arose in the context of sexual harassment.

Sexual Harassment. Everyone has heard of sexual harassment, but few people know exactly what it is. Sexual harassment involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. There are two major categories of sexual harassment:

(1) quid pro quo and

(2) hostile work environment.

Quid pro quo: A Latin phrase that means "one thing in return for another."

Quid pro quo harassment occurs if any aspect of a job is made contingent upon sexual activity. In the Guzman case, the plaintiff alleged that a male editor had offered a permanent report job to a young female copy assistant in exchange for sexual activity.

Bonus notes: Offensive jokes, intrusive comments about clothes or body parts, and public displays of pornographic pictures can make a hostile environment. These offensive remarks can be conveyed through any form of communication including texting, email and in person.

Hostile Environment Based on Race. In Jones v. UPS Ground Freight, an African -American driver repeatedly found bananas and banana peels on his truck. Some employees wore Confederate shirts and hats. When he reported these events, two other drivers confronted him in the parking lot holding a crowbar, and asking him if he had reported them to the supervisor. Again, he found banana peels on his truck. The trial court found no hostile environment, but the appellate court overturned the case and remanded it for trial, ruling that these events could, indeed, have created a hostile work environment.

Bonus Notes: Hostile Environment Based on Color. Although many assume that "race" is the same thing as "color," that is not the case. Those with dark skin color can be discriminated based solely on skin color.

Hostile Environment Based on National Origin. Discrimination based on country of origin is also prohibited. Examples include calling an employee "brown boy," "spic," and "wetback." Such discrimination is itself a violation of Title VII, even if there is no evidence of adverse employment action.

Employer Liability for Sexual Harassment. Employees who engage in illegal harassment are liable for their own wrongdoing. But is their company also liable? The Supreme Court has held that:

If the victimized employee has suffered a "tangible employment action" such as firing, demotion, or reassignment, the company is liable to her for harassment by a supervisor.

Even if the victimized employee has not suffered a tangible employment action, the company is liable unless it can prove that (1) it used reasonable care to prevent and correct harassing behavior and (2) the employee unreasonably failed to take advantage of the company's complaint procedures.

Retaliation

Title VII also prohibits employers from retaliating against workers who oppose discrimination, bring a claim under the statute, or take part in an investigation or hearing. Retaliation means that the employer has done something that would deter a reasonable worker from complaining about discrimination. Research indicates that retaliation occurs in as many as 60 percent of discrimination cases.