Understanding Title Vii: What Constitutes Illegal Discrimination?

Title VII of the Civil Rights Act of 1964 is the primary federal law that prohibits employment discrimination based on race, colour, religion, sex, and national origin. It also prohibits intentional discrimination and practices that have a discriminatory effect on individuals. Title VII protection covers the full spectrum of employment decisions, including recruitment, selection, termination, and other decisions concerning terms and conditions of employment. For example, it is illegal to discriminate against an individual because of their birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. Title VII also prohibits employers from retaliating against employees or applicants who assert their rights under the law, such as when an employee files a discrimination charge or testifies in an investigation.

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Discrimination based on race, colour, religion, sex, and national origin

Finally, Title VII makes it illegal for employers to use employment policies or practices that negatively impact people of a certain national origin if it is not job-related or necessary for the business. National origin discrimination involves treating applicants or employees unfavourably because of their country of origin, ethnicity, or accent. It also includes harassment, such as making offensive or derogatory remarks about an individual's national origin.

Disparate treatment

To establish disparate treatment, a plaintiff must demonstrate that the defendant had a discriminatory intent or motive for taking a job-related action. This can be done through statistical evidence, comparative evidence, or a combination of both. For example, in a termination case, the plaintiff must show that they were performing according to the employer's legitimate expectations, and that the employer's actions were motivated by discriminatory intent.

In addition to the protected characteristics mentioned above, Title VII also prohibits discrimination against individuals who have filed a Title VII charge, participated in a Title VII investigation, or opposed Title VII discrimination. This protection extends to those who have opposed any unlawful employment practice or participated in an investigation of an Equal Employment Opportunity (EEO) complaint.

Sexual harassment

Harassment becomes unlawful when it meets one of the following conditions:

• Enduring the offensive conduct becomes a requirement for continued employment.
• The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

To determine if a work environment is hostile, the following factors are considered:

• The frequency and severity of the conduct;
• Whether the offensive conduct was physically threatening or humiliating, as opposed to a mere offensive utterance; and
• Whether the conduct unreasonably interferes with an employee's work performance.

Employers are encouraged to take proactive steps to prevent and address unlawful harassment. They should establish an effective complaint process, provide anti-harassment training, and take immediate action when an employee complains. Additionally, employees should feel empowered to inform the harasser that the conduct is unwelcome and must stop, and they should report harassment to management at an early stage.

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Retaliation

To prove retaliation, a plaintiff must show that they suffered an "adverse employment action". Federal courts have disagreed on the definition of this term. Some courts have held that it must be an "ultimate employment decision" such as hiring, firing, promoting, or compensating. Other courts have defined it as any "materially adverse change in the terms and conditions of employment," such as suspension without pay or demotion.

The United States Supreme Court resolved this dispute in 2006, ruling that the specific circumstances of a case determine whether an act constitutes retaliation. This decision expanded the rights of employees under Title VII.

Individuals who engage in retaliatory conduct can be held personally liable for punitive damages if they:

• Participated in the deprivation of plaintiffs' constitutional rights
• Acted culpably in the training, supervision, or control of their subordinates
• Acquiesced in the constitutional deprivations
• Showed a reckless or callous indifference to the rights of others

Military service

However, Title VII does not apply to uniformed service members. Instead, the Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employment discrimination based on an employee's past, present, or future military service. This federal law applies to anyone who performs duties in the "uniformed services," whether voluntarily or involuntarily. The "uniformed services" include the Army, Marine Corps, Navy, Army National Guard, Coast Guard, Air Force, Air National Guard, or Public Health Service Commissioned Corps.

USERRA covers both voluntary and involuntary military service, in peacetime and wartime, and applies to all employers in the United States, including the federal government, state and local governments, and private employers. Under USERRA, an employer cannot deny employment, reemployment, promotion, or benefits because of an individual's military service. Additionally, employers are prohibited from retaliating against employees for asserting their rights under USERRA or participating in protected activity, such as filing a complaint or assisting in an investigation.

Veterans with disabilities may have reemployment rights under USERRA and are also entitled to reasonable accommodations under the Americans with Disabilities Act. The Veterans' Employment and Vocational Rehabilitation Act (VEVRAA) also provides protections for veterans who have served in active duty and were discharged or released for reasons other than dishonorable conduct.

In conclusion, while Title VII does not cover uniformed service members, they are protected from discrimination related to their military service under USERRA, which applies to all employers in the country.

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