2.83 - 1. Title Vii Of The Civil Rights Act Of 1964

• Jurisdiction: New York

1. Title VII of the Civil Rights Act of 1964 ⁸⁴²

Title VII of the Civil Rights Act of 1964 (Title VII) is the primary federal law covering employment discrimination and makes it unlawful to discriminate against individuals with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex (including sexual orientation⁸⁴³ and pregnancy, childbirth, or related medical conditions⁸⁴⁴ or national origin.⁸⁴⁵ It applies to employers with at least 15 employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.⁸⁴⁶ The scope of Title VII was amended in 1972 to include public employers.⁸⁴⁷

The Civil Rights Act of 1991⁸⁴⁸ amended Title VII to clarify the burden of proof required in disparate impact cases.⁸⁴⁹ In a disparate impact case, a plaintiff must demonstrate that the employer’s use of a particular employment practice causes a disparate impact on the basis of race, color, religion, sex, or national origin and the employer fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.⁸⁵⁰ The United States Supreme Court has held that the Title VII prohibition against employment discrimination on the basis of sex also prohibits various forms of “sexual harassment.”⁸⁵¹ Title VII’s statutory protections do not extend to discrimination based on citizenship unless a plaintiff can establish that such discrimination “has the purpose or effect of discriminating on the basis of national origin.”⁸⁵² These protections have been broadly interpreted by the courts to extend to whites as well as racial minorities⁸⁵³ and males as well as females.⁸⁵⁴

Title VII prohibits discrimination in all aspects of employment, including recruitment;⁸⁵⁵ hiring;⁸⁵⁶ training and apprenticeship programs;⁸⁵⁷ discharge;⁸⁵⁸ retaliation;⁸⁵⁹ compensation; the limitation, segregation or classification of employees;⁸⁶⁰ as well as terms, conditions or privileges of employment.⁸⁶¹

On January 29, 2009, in the wake of the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co.,⁸⁶² the Lilly Ledbetter Fair Pay Act of 2009⁸⁶³ was signed into law. This amendment to Title VII⁸⁶⁴ provides that with respect to a claim of discrimination in compensation, a complaint can be filed “when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such decision or other practice.”⁸⁶⁵

Individuals in the following groups are specifically excluded⁸⁶⁶ from Title VII’s definition of “employee” and thus are not entitled to its protections:

1. persons elected to public office in any state or political subdivision thereof;

2. persons appointed to an elected official’s personal staff;

3. an appointee on the policy-making level; and

4. “immediate advisor[s] with respect to the exercise of the constitutional or legal powers of the office.”⁸⁶⁷

The application of these exclusions has been narrowly construed.⁸⁶⁸

An employer’s otherwise unlawful consideration of protected characteristics does not constitute a violation of the statute where the employer can demonstrate either (1) an inability to reasonably accommodate the religious practices or observance of an applicant or employee without undue hardship on the employer’s business;⁸⁶⁹ or (2) that religion, sex or national origin is a “bona fide occupational qualification.”⁸⁷⁰ Title VII also exempts bona fide merit systems and seniority plans from its prohibitions so long as the application of different terms of employment or standards of compensation is not the result of intentional discrimination.⁸⁷¹

Title VII sets forth a comprehensive administrative framework that provides for review of employment discrimination claims at both the state and federal levels. In enacting Title VII, Congress intended voluntary compliance, conference and conciliation through administrative proceedings to be the preferred means of resolving disputes.⁸⁷² Relief in federal court is not available until an employee has unsuccessfully pursued the remedies available from the United States Equal Employment Opportunity Commission (EEOC).⁸⁷³

Exhaustion of Title VII’s administrative remedies is a jurisdictional prerequisite to an employee’s federal civil action.⁸⁷⁴ The doctrine of election of remedies, a viable defense under the New York State and New York City Human Rights Laws, has no application in this context.⁸⁷⁵ However, if an employee appeals an adverse decision of the state Division of Human Rights or the City Commission on Human Rights and loses, the state court’s decision will be given full faith and credit in a subsequent Title VII action.⁸⁷⁶

The EEOC is the federal agency authorized to enforce Title VII.⁸⁷⁷ While the EEOC is solely responsible for both the administrative processing and judicial enforcement of cases brought against private parties, the attorney general of the United States is authorized to enforce Title VII against public employers through either a “pattern and practice” suit on its own motion or pursuant to a referral from the EEOC.⁸⁷⁸

An employee in New York who seeks redress under Title VII must file a charge with the EEOC within 300 days of the alleged discriminatory conduct.⁸⁷⁹ If the charge has not previously been filed with the state or local agency, the EEOC must defer the charge to the agency and afford it an opportunity to process the charge pursuant to the state or local law.⁸⁸⁰ This deferral of jurisdiction does not constitute an election of remedies under New York law.⁸⁸¹ The EEOC is authorized to reassert jurisdiction over the charge either after 60 days⁸⁸² or after termination of the local or state agency’s proceedings.⁸⁸³ The EEOC then conducts an investigation to determine whether there is “reasonable cause” to believe the allegations contained in the charge.⁸⁸⁴ In rendering this determination, the EEOC is obligated to accord “substantial weight” to any final findings and orders made by the local or state agency.⁸⁸⁵ If the EEOC is unable to secure acceptable voluntary compliance with a respondent that is non-governmental, the EEOC may bring a civil action, and in the case of a governmental agency, the charge shall be referred to the attorney general for further consideration.⁸⁸⁶ Aggrieved employees have the right to intervene in any action initiated by the attorney general.⁸⁸⁷

After processing the charge for 180 days,⁸⁸⁸ if the EEOC has not dismissed the charge, or in a case involving a public employer, the attorney general has neither filed a civil action nor entered into a conciliation agreement to which the complainant is a party, the aggrieved party is entitled to receive a notice of right to sue.⁸⁸⁹ The employee may commence a civil action against the employer within 90 days of receipt of such notice.⁸⁹⁰ Absent special circumstances, receipt of a notice of right to sue is a jurisdictional prerequisite to a Title VII suit by a private litigant.⁸⁹¹ The attorney general may intervene in actions against governmental entities upon certification that the case is of general public importance.⁸⁹²

The primary theories utilized to prove unlawful discrimination are disparate treatment,⁸⁹³ disparate impact,⁸⁹⁴ and “pattern and practice” discrimination.⁸⁹⁵ In a disparate treatment case, the theory is that an employer intentionally treated a complainant less favorably than other employees outside of complainant’s protected class with comparable qualifications.⁸⁹⁶ Courts analyze Title VII disparate treatment claims under the McDonnell Douglas burden-shifting paradigm.⁸⁹⁷ The plaintiff must first establish a prima facie case by showing: (1) membership in a protected group, (2) that the person was qualified for the position; (3) that the person suffered an adverse employment action, and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination.⁸⁹⁸ Once a claimant establishes a prima facie case, the burden then shifts to the employer, who can rebut the plaintiff’s presumption by articulating evidence of a “legitimate, nondiscriminatory reason” for his or her conduct.⁸⁹⁹ The plaintiff has the ultimate burden of persuasion and must prove that the employer’s explanation was merely pretextual.⁹⁰⁰ In evaluating a disparate-impact claim, courts focus on the effects of an employment practice, determining whether they are unlawful irrespective of motivation or intent.⁹⁰¹ In a “pattern and practice” suit, it is the plaintiff’s burden to “establish by a preponderance of the evidence that . . . discrimination was the [employer’s] standard operating procedure[—]the regular rather than the unusual practice.”⁹⁰² Statistics can be an important source of proof in pattern and practice cases.⁹⁰³

If a violation is proven, the statute authorizes the courts to utilize a broad grant of remedial power to fashion relief.⁹⁰⁴ The court may order injunctive relief, including orders designed to modify or extinguish discriminatory employment practices, back pay, hiring, reinstatement, promotions and other such affirmative and equitable relief it deems appropriate.⁹⁰⁵ However, the courts are prohibited from ordering affirmative relief that abrogates the right of nonvictims under bona fide seniority plans.⁹⁰⁶ The court, in its discretion, may award attorney fees to the prevailing party in a Title VII action.⁹⁰⁷ Public employers may not assert the Eleventh Amendment as a bar to liability under Title VII.⁹⁰⁸

Over the years, an increasingly conservative Supreme Court has attempted to narrow the availability of Title VII relief to many disadvantaged groups. The Civil Rights Act of 1991...