Chapter 19 - § 19.3 • FAIR EMPLOYMENT LAWS

• Jurisdiction: Colorado

§ 19.3 • FAIR EMPLOYMENT LAWS

§ 19.3.1—Introduction

A wide range of federal, state, and local laws prohibit employers from discriminating against or harassing employees (or applicants for employment) based on certain protected characteristics. These same laws also prohibit employers from retaliating against employees who engage in protected activities, such as raising complaints of discrimination or harassment. The discussion below explains these laws in greater detail.

§ 19.3.2—Federal Laws

Title VII of the Civil Rights Act of 1964

Coverage

Under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e through 2000e-17, covered employers are prohibited from engaging in discrimination on the basis on an individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2; see also www.eeoc.gov, the website of the Equal Employment Opportunity Commission (EEOC). The EEOC has taken the position that Title VII's prohibition against sex discrimination also prohibits discrimination based on gender identity and sexual orientation. See www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm. Title VII applies to private employers who employ at least 15 employees on each working day of at least 20 weeks in the current or preceding calendar year. 42 U.S.C. §§ 2000e(b), (c), and (d). Title VII also covers the federal government, state and local governments, governmental agencies, and other political subdivisions. 42 U.S.C. §§ 2000e(a)-(b); 42 U.S.C. § 2000e-16. However, in Alden v. Maine, 527 U.S. 706 (1999), the U.S. Supreme Court (in a 5-4 ruling) rejected state employees' wage claims against the State of Maine based on the Fair Labor Standards Act, holding that states are immune under the U.S. Constitution from suit by their own employees where those employees are seeking to enforce rights under federal employment laws.

Certain employers are exempt from coverage under Title VII, including religious organizations (42 U.S.C. §§ 2000e-1 and 2000e-2(e)), Indian tribes (42 U.S.C. § 2000e(b)), and private member clubs that both are tax exempt and have defined literary, scientific, or political objectives(Id.; Quijano v. University Fed. Credit Union, 617 F.2d 129 (5th Cir. 1980); see also EEOC Compliance Manual (2009) Section 2, Chapter III, Part B, available at www.eeoc.gov/policy/docs/threshold.html).

Types of Claims

Title VII plaintiffs can proceed under three distinct theories of liability: (1) disparate treatment claims, (2) disparate impact claims, or (3) "mixed motive" claims.

Under the disparate treatment theory, a plaintiff must prove that the employer treated him or her less favorably than co-workers outside of the protected class because of the plaintiff's race, color, religion, sex, or national origin. See Drake v. City of Fort Collins, 927 F.2d 1156 (10th Cir. 1991). To prevail on a disparate treatment claim, the plaintiff must establish an intentional, facially discriminatory employment practice. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In particular, the plaintiff must establish a prima facie case of intentional discrimination, after which the burden shifts to the employer to articulate a facially nondiscriminatory reason for its employment action, and the plaintiff may then show that the stated reason was merely a pretext for a racially discriminatory action. Elmore v. Capstan, Inc., 58 F.3d 525 (10th Cir. 1995); James v. Sears, Roebuck & Co., 21 F.3d 989 (10th Cir. 1994).

In contrast to disparate treatment claims, disparate impact claims typically involve facially neutral employment practices that disproportionately harm those employees who fall into a protected classification and that the employer cannot justify by showing a business necessity. Garrison v. Gambro, 428 F.3d 933 (10th Cir. 2005). Unlike disparate treatment claims, plaintiffs proceeding under a disparate impact theory need not demonstrate proof of discriminatory motive. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977).

Finally, in mixed motive cases, a plaintiff must establish that his or her protected status was a "motivating factor" in the adverse action at issue, "even though other [non-discriminatory] factors also motivated" the action. 42 U.S.C. § 2000e-2(m); Davey v. Lockheed Martin Corp., 301 F.3d 1204 (10th Cir. 2002). Similar to disparate treatment claims, plaintiffs attempting to prove a mixed motive claim must establish an intentional, facially discriminatory employment practice.

Employees may also attempt to establish employer liability under the "cat's paw" theory. Although this theory of liability has been used sparingly, a 2011 U.S. Supreme Court case recognized that where the actions of a biased supervisor caused an adverse employment action (e.g., where a biased supervisor reported to HR that an employee had violated a corrective action, causing HR to terminate that employee), an employer cannot avoid liability by contending that the biased supervisor was not the ultimate decision-maker. Staub v. Proctor Hospital, 562 U.S. 411 (2011). The Court's analysis highlights the importance of conducting an independent investigation into alleged employee misconduct prior to taking any adverse action, to avoid any implication that the employment decision in question was based solely (or primarily) on the investigation or recommendation of a biased non-decision-maker.

BFOQ

Where an employer can establish that an employee's sex, religion, or national origin is a "bona fide occupational qualification" (BFOQ), an employer does not violate Title VII by giving more favorable treatment to a candidate on the basis of his or her sex, religion, or national origin. 42 U.S.C. § 2000e-2(e); 29 C.F.R. § 1604.2 (sex as BFOQ); 29 C.F.R. § 1606.4 (national origin as BFOQ). However, employers bear the burden of proving the existence of a BFOQ, and the BFOQ defense applies only in disparate treatment cases. Moreover, courts will narrowly construe the BFOQ defense. UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), on remand, 935 F.2d 272 (7th Cir. 1991), appeal after remand, 969 F.2d 290 (7th Cir. 1992); 29 C.F.R. § 1604.2; 29 C.F.R. § 1606.4. To rely on the BFOQ defense, an employer must establish that members of the excluded group cannot safely or efficiently perform essential job duties, that "all or substantially all" members of the excluded group cannot adequately perform the essence of the job, and that no reasonable alternatives exist that could accomplish the employer's purpose with a less discriminatory impact. Dothard v. Rawlinson, 433 U.S. 321 (1977); UAW, 499 U.S. at 216-17. For example, where the protected classification at issue is sex, an employer may attempt to prove gender as a BFOQ if privacy is an issue (UAW, 499 U.S. at 206 n. 4), or if "necessary for the purpose of authenticity or genuineness . . . , e.g., an actor or actress." 29 C.F.R. § 1604.2(a)(2). Where the protected classification at issue is religion, there are limits on an employer's preference for candidates of a particular religious denomination. Where the position at issue involves ministerial or ecclesiastical duties, the employer may attempt to establish religious affiliation as a BFOQ; however, Title VII does not exempt religious institutions from liability if the conduct at issue is unrelated to matters of church administration, government, and ecclesiastical concern. Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648 (10th Cir. 2002). By way of example, religious institutions are not shielded from claims of unlawful sexual harassment under the "ministerial exemption." See Dolquist v. Heartland Presbytery, 342 F. Supp. 2d 996 (D. Kan. 2004), and cases cited therein.

Other than educational institutions, Title VII gives broader rights to prefer candidates of a particular religion to schools, colleges, universities, and other educational institutions that are in whole or substantial part owned, supported, controlled, or managed by a particular religion or particular religious corporation, association, or society, or if the curriculum of the institution is directed toward the propagation of a particular religion. 42 U.S.C. § 2000e-2(e)(2).

Discrimination on the Basis of Race/Color — Scope

Under Title VII, covered employers may not discriminate on the basis of race or race-related characteristics and conditions, which may include skin color, hair texture, or certain facial features. This remains the case even though all members of the race may not share the same characteristics. Title VII similarly prohibits discrimination based on conditions that predominantly affect members of a particular race, unless the employer can show that its practice is job-related and consistent with a business necessity. For example, because sickle cell anemia and pseudofolliculitis barbae (severe shaving bumps) predominantly impact African-Americans, employers would bear the burden of establishing both a job-related reason and a business necessity to justify policies that exclude individuals with sickle cell anemia or a beard. See EEOC website, www.eeoc.gov/laws/types/race_ color.cfm.

Religious Discrimination and Accommodation of Religious Beliefs/Practices

Under Title VII, employers must "reasonably accommodate" the religious practices of their employees and prospective employees, unless such accommodation would result in "undue hardship" to the employer. 42 U.S.C. § 2000e(j); 29 C.F.R. § 1605.2. Most often, employees or prospective employees request accommodations because they anticipate that their religious practices may conflict with their work schedules. 29 C.F.R. § 1605.2(d). To accommodate such conflicts, employers should consider allowing employees to voluntarily swap schedules, or other accommodations including flexible arrival and departure times, floating or optional holidays, flexible work breaks, working through lunch in exchange for early departure, staggered work hours, making up time lost due...