Employment Discrimination School, Part 3 (Title VII)

Title VII is the cornerstone of federal employment discrimination protections.  It was enacted as part of a much large piece of civil rights legislation, the Civil Rights Act of 1964.  The debate regarding passage of such comprehensive discrimination protections was long and contentious.  Title VII has been amended several times since its original enactment, and these amendments will be discussed in detail as they become relevant. Section 703(a) of Title VII currently provides:

(a)  Employer practices

It shall be an unlawful employment practice for an employer –

(1)   to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2)   to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2.

When addressing a question under Title VII it is always important to know three things about its main operative provisions. First, Congress did not define key words in the statute, such as “to discriminate,” “because of,” or “terms, conditions, or privileges of employment.” There is even very little legislative history about this key language.

Second, the main operative provision is divided into two sections. Courts often characterize the first section as prohibiting disparate treatment (intentional discrimination against a person or a group) and the second as prohibiting disparate impact (applying a facially neutral policy in a way that has an adverse impact based on a protected trait). However, there is nothing in the structure or history of Title VII’s development that requires such a split. I encourage attorneys to begin to explore whether (a)(2) can be a helpful section to apply to disparate treatment claims.

Finally, our discussion is quickly going to turn to the judicial gloss the courts have placed on the statute. As the courts begin to develop discrimination law, they will start to create categories of discrimination and create frameworks for these categories. None of these frameworks or categories was contained in the original language of the statute.

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