1976, March, Pg. 357. Sex Discrimination in Employment: Opening a Closed Door.

• Author: by Leslie M. Lawson

5 Colo.Law. 357

Colorado Lawyer

1976.

1976, March, Pg. 357.

Sex Discrimination in Employment: Opening a Closed Door

357Sex Discrimination in Employment: Opening a Closed Doorby Leslie M. LawsonThe lawyer representing a person locked out of employment because of sex must have a tool to pry open the employer's door. This article concentrates on the crow bar, Title VII of the 1964 Civil Rights Act.(fn1) The following discussion is intended to be a basic guide to handling a sex discrimination case under Title VII.

Equal Employment Law GenerallySeveral federal laws prohibit, either directly or indirectly, sex discrimination in employment. Title VII, which is enforced by the Equal Employment Opportunity Commission (EEOC), specifically prohibits discrimination on the basis of sex, as well as race, national origin, color or creed, in all phases of employment. If the client has not received equal pay for equal work because of sex, the Equal Pay Act of 1963 also applies.(fn2) This Act is administered by the Labor Department and prohibits sex discrimination in the payment of wages for equal work on jobs performed under similar conditions and requiring equal skill, effort and responsibility.(fn3) Two more general civil rights laws have also been held applicable to employment. The Civil Rights Act of 1871,(fn4) has been judicially interpreted to prohibit discrimination on the basis of sex, as well as race and national origin, while the Civil Rights Act of 1866(fn5) has been interpreted to apply only in cases involving race or national origin.

Pertinent executive orders can be used when the door has been closed by the federal government or an employer contracting with the federal government. Executive Order 11478 prohibits sex discrimination by federal employers and requires continuing affirmative action programs in each agency.(fn6) Pursuant to Executive Order 11246, as amended in 1967, government contracts must include provisions prohibiting sex discrimination by employer contractors.(fn7)

The equal protection clause of the Fourteenth and Fifth amendments is another tool to use when sex discrimination results from state or federal action. For example, pregnancy leave policies for public school teachers(fn8) and the treatment of disabilities related to pregnancy under a state social welfare program(fn9) have been litigated under the equal protection clause.

In Colorado, state protection is provided by the Colorado Anti-Discrimination Act of 1957,(fn10) which is administered by the Colorado Civil Rights Commission. Municipalities may also have antidiscrimination ordinances which are enforced on the local level.(fn11) An aggrieved person may proceed under either state or federal law, or both; however, jurisdictional requirements of Title VII exclude employers with fewer than 15 employees, while state and local laws generally cover employers with one or more employees.

Title VII is probably the most comprehensive

358and commonly used of the tools. It is generally applicable to public and private employers, as opposed to the more limited coverage of the other laws. Most other laws do not contain a prohibition against retaliation by the employer, and this lack of protection may deter persons from asserting their rights. Furthermore, Title VII provides for investigation and conciliation by the EEOC, as well as a trial de novo in the federal district court.

Basic Provisions of Title VIITitle VII prohibits discrimination by employers of 15 or more employees who are engaged in interstate commerce, employment agencies, labor organizations and joint labor-management apprenticeship committees.(fn12) Federal employers and federal contractors are also covered.(fn13) Specifically excluded from coverage are Indian tribes, bona fide private clubs, and religious institutions.(fn14)

Individuals protected by Title VII may be employees or applicants for employment, union members or applicants for membership, apprentice or apprenticeship applicants.(fn15) A limited number of individuals are excluded from coverage, such as elected officials, their policy-level employees and legal advisers.(fn16)

In addition to the general prohibition against employment discrimination, Title VII specifically prohibits failure or refusal to hire, discharge, classification, referral and other acts based upon discriminatory policies.(fn17) Job advertisements indicating a preference which discriminates on the basis of race, sex, national origin, color or creed are prohibited unless the preference is based upon a "bona fide occupational qualification."(fn18) Unlike the other tools, Title VII wisely prohibits retaliation against employees who have filed a charge, opposed an unlawful practice or assisted in the processing of a complaint.(fn19)

The 1964 Civil Rights Act created the EEOC to investigate and attempt to conciliate charges, and provided that suits for enforcement were to be filed by the United States Attorney General. In 1972 the Act was amended to enable the EEOC to bring civil actions against private employers as part of the enforcement effort.(fn20) In addition, the 1972 amendment granted the Attorney General authority to bring civil actions against political subdivisions which were included under Title VII by the amendment.(fn21) Individuals who have filed charges may also bring suit or intervene in suits filed by the EEOC or the Justice Department. The right of an individual to enforce Title VII has been interpreted as separate from the right of the federal agencies.(fn22)

Procedure Under Title VII

Condition precedent to the filing of a Title VII suit is the filing of a charge of employment discrimination within specified time periods. A charge is a statement by the aggrieved person of those actions he believes constitute employment discrimination against him. The charging party need not offer proof that the alleged actions constitute discrimination to include them in the charge, as the purpose of the charge is merely to trigger an investigation by the EEOC. Charges are to be liberally construed to aid those persons lacking technical skills in pleading and to further the purpose of the law.(fn23) The charge should, however, include all possible issues and bases as the scope of judicial inquiry has been limited to the issues reasonably arising from the charge or the scope of the investigation.(fn24) When a union contract determines employment practices, the union must be named as a party in both the charge and the subsequent suit. Failure to name the union may result in dismissal of the suit for failure to name an indispensible party under Rule 19(b) of the Federal Rules of Civil Procedure.(fn25)

If the state or locality has a "fair employment practices" agency, the charge must be filed with the EEOC within 30 days after the state or local agency terminates its proceedings or 300 days after the alleged violation occurred, whichever is earlier. In those states, charges initially received by the EEOC will be deferred to the

359proper agency. Once the charge is filed with the state or local agency, the EEOC may not assume jurisdiction over the charge until the expiration of 60 days, unless the state or local agency terminates its proceedings earlier.(fn26) The charge should be timely filed under state law or it may be barred under Title VII.(fn27) In the absence of a state or local agency, the charge must be filed within 180 days after the alleged violation occurred.(fn28) The charge must be filed within these time periods after a specific act of discrimination, or the charging party will be precluded from seeking relief under Title VII. However, if the discriminatory act is a "continuing act" of discrimination, and its continuing nature is alleged in the charge, the time limitations have been held not to be mandatory.(fn29)

The charge must be served on the respondent within 10 days of the filing of the charge.(fn30) An investigation then takes place; however, Title VII does not provide a specific time in which the investigation must be completed. This is one of the major drawbacks of Title VII as a long time period may elapse before an investigation is done. Following the investigation, the EEOC is required to issue a determination of whether reasonable cause exists to believe the charge is true.(fn31) Upon a finding of reasonable cause, the EEOC must attempt to conciliate the charge.(fn32) If the respondent fails or refuses to confer, or if conferences do not result in voluntary compliance with Title VII, the respondent must be notified of the termination of the conciliation efforts.(fn33)

Federal Court Actions

A civil action may be filed in the federal district court by the charging party, the EEOC or the Attorney General. The charging party may not file an action unless the charge is dismissed or suit has not been filed by the EEOC or the Attorney General within 180 days of the filing of the charge. At that time the charging party must be notified and can demand a notice of right to sue.(fn34) Suit may not be filed until the notice has been issued. To avoid dismissal, suit must be filed within 90 days of issuance of the notice.(fn35) The EEOC or Attorney General is not bound to file suit within 180 days; therefore, this provision provides relief to a charging party who feels the government has been dilatory in handling his case.

Exhaustion of remedies, other than filing a charge with a state or local agency, is not required prior to filing suit. The...