Author:George Rutherglen

The coverage of Title VII raises numerous issues of varying significance. Section 701 makes Title VII applicable to all employers with fifteen or more employees in an industry affecting commerce; all labor organizations in an industry affecting commerce; and all employment agencies that regularly provide employment to statutorily defined employers.[411] The statutory definition of "employer" includes state and local government, but excludes the United States and related entities, Indian tribes, and certain private membership clubs.[412] The exception for the United States and related entities is largely, but not entirely, offset by the special provisions for coverage of employees of the United States.[413]

Section 701 reflects diverse concerns, such as protecting the freedom of association of smaller employers, or at least leaving them to be regulated only by state law; recognizing the greater ability of larger employers to comply with a complex statutory scheme; and providing a special remedy for federal employees consistent with the remedies available under the civil service system. The limit on the size of employers, together with provisions in the Civil Rights Act of 1991 limiting liability for damages based on the size of the employer, have led most of the circuits to hold that individual agents of an employer are not covered by the statute at all.[414] This issue has been most frequently litigated in sexual harassment cases, in which the plaintiff has sued both the employer and a supervisor who has allegedly engaged in harassment.[415]

Apart from routine litigation over the question whether an employer has fifteen or more employees,[416] most of the questions about coverage have addressed two additional issues of general significance: whether Title VII extends to all aspects of employment and whether it extends to employees who work outside the United States. The first question has been resolved in favor of coverage, reaching such conditions and benefits from employment as eligibility for partnership in a law firm[417] and pension benefits.[418] The question of coverage of employees working overseas was first resolved by the Supreme Court against coverage,[419] but this decision was overruled by the Civil Rights Act of 1991, which explicitly extends coverage to American citizens employed overseas by American employers and corporations controlled by such employers.[420] This extension of coverage is subject to a defense that compliance...

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