HR’s Anti-Discrimination Law Primer (Part 1)

Legislation from Title VII of the Civil Rights Act of 1964 to the Americans with Disabilities Act help define the boundaries of the U.S. workplace. Is it discriminatory to terminate a worker who can’t attend a Friday-night shift due to religious obligations? Could an employer demote someone who can’t carry out the essential functions of a job because of a disability? Fact-specific details shape the answers to these questions, but to understand how such situations might play out, HR professionals need to have at least a working understanding of the nation’s employment laws.

Below is the first of five installments of our “Back to Basics”, a column dedicated to laying out the basics of federal employment laws. Of course, other types of discrimination exist outside the kinds banned by these laws. But these pieces cover four statutes enforced by the U.S. Equal Employment Opportunity Commission. There’s also a column on retaliation, an element of virtually every employment law.

Back to Basics: Let’s talk Title VII

Title VII of the Civil Rights Act of 1964 may be the easiest employment law for employers to understand and implement.

Let me set a scene. Dan works for a carwash full time. He wipes down the vehicles after the sprinklers rinse them of their suds and the fans dry them off, save a few droplets, which Dan takes care of. Dan’s manager has him work Monday through Friday, and he sometimes works Sundays, because the carwash staff takes weekend shifts in rotation. One week, Dan’s manager tells him she’s scheduled him to come in for a Saturday shift. Dan tells her this won’t be possible — he’s Jewish and recognizes the Sabbath, which means he can’t work on Saturdays.

What’s the manager’s next move? She really needs him to work, but she seems to remember something about religious accommodations from her managerial training. Can she tell him he has to work? Does the law obligate her to give him the time off?

Most HR professionals know that Dan is protected from discrimination based on his religion by Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination on the basis of race, sex, national origin, color and religion. It applies to employers with 15 or more employees.

Treat everyone the same?

When Title VII was enacted, most interpreted it to mean that employers needed to treat everyone the same. For the most part, that remains the general idea today. According to the U.S. Equal Employment Opportunity Commission (EEOC), “Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin.” In the 1980s, the courts began to interpret harassment based on any of the characteristics Title VII defines as unlawful discrimination, too. Harassment was not mentioned anywhere in the law, so that was a court interpretation that has been accepted by everybody, including the U.S. Supreme Court.

The Pregnancy Discrimination Act amended Title VII in 1978, which added another protected class of workers under one that already existed. In essence, it provides that pregnancy discrimination is another form of sex discrimination.

Title VII may undergo further amendments. “The latest hot issue is whether sex includes sexual orientation or gender identity. We think the Supreme Court is going to agree to resolve that, or at least we hope they will. The EEOC and the U.S. Department of Justice hold contrary opinions as to whether Title VII protects employees from discrimination based on sexual orientation or gender identity. Even so, we advise our clients to prohibit any discrimination based on either of those things. A lot of states already prohibit LGBT discrimination under state law, so employers have to beware of that, and make sure they’re in compliance with applicable state law.

Two U.S. circuit courts of appeal have ruled that Title VII does include sexual orientation discrimination. Any employer in Illinois, Wisconsin or Indiana or in New York, Connecticut or Vermont would actually have to avoid discrimination based on LGBT status under Title VII. Another, the 6th Circuit, ruled that Title VII prohibits discrimination based on gender identity. Employers in Michigan, Ohio, Kentucky or Tennessee will need to take note of that as well.

Even if it’s legal to discriminate based on sexual orientation or gender identity, there are probably claims that LGBT individuals could raise. If a worker harassed another worker based on his or her sexuality or gender identity, that person could make a claim based on intentional infliction of emotional distress or even assault and battery, depending on how he or she was harassed.

Treat some people a little differently

The original interpretation of Title VII may have been to treat everyone the same, but the law was amended to require employers to make accommodations so as not to discriminate based on religion. That’s really a little bit different from treating everybody the same. It’s treating people differently because they have some protected reason that they need special accommodations.

Turning back to Dan, our hypothetical worker, it seems that his manager would need to accommodate his schedule under Title VII so he can practice his religion. According to EEOC’s website, “The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business.”

Title VII’s pregnancy amendments did not similarly require accommodation for pregnancy, but it’s worth noting that the Supreme Court in Young v. UPS  said accommodations might have to be made for pregnant workers if the employer accommodated similar restrictions for others. This means an employer would need to articulate a non-discriminatory reason for not accommodating a pregnant employee as it would other employees.

Disparate impact

Employers should also know that they may discriminate by applying a neutral policy that excludes a protected class of employees. That’s called disparate impact. So let’s say that Dan lives in an area with a high population of religious Jews, most of whom celebrate the Sabbath. If the carwash makes it a policy to hire only employees who can work on Saturdays, which is the Sabbath, they automatically exclude religious Jews and opens itself up to litigation.

Best practices

We hope you’ve been refreshed by Title VII’s relative simplicity. Here is a list of best practices to help employers assess how well they comply with Title VII.

• Harassment training: We recommend employers hold harassment training once a year, with separate sessions for employees and managers. Employees need to know how to recognize harassment and how to complain about it. They also need to be assured they can deal with harassment without fear of retaliation. Managers need to know all that, plus what to do with a harassment complaint once it comes to them.
• Process and action: Employers must ensure they implement a fair process with which they handle claims and deliver an appropriate response.
• Safe space: Employers need to create a safe space for managers who may be named in complaints alleging they harassed someone or discriminated against them. Regardless of the claim’s status as true or untrue, managers need to be able to speak with someone on staff when they’re feeling frustrated so they can return to the larger workplace and conduct themselves professionally.

Tomorrow, we will continue our five part series by taking a look at the Americans with Disabilities Act.