3. What are the protections against employment discrimination provided by the “Title VII” of the Civil Rights Act of 1964?
Title VII makes it unlawful for an employer 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 ….”. The terms of Title VII have been interpreted very broadly to include any number of adverse actions against the employee based upon race, color, religion, sex, or national origin. This includes retaliation against an employee for making a claim of discrimination or an employee bearing witness to acts of discrimination against another employee.
• Note: States pass civil rights statutes similar in nature to Title VII. These statutes are generally more protective of employees or provide additional prohibitions on employer practices.
Applicability – Bona Fide Occupational Qualifications
The provisions of Title VII apply to employers with 15 or more employees, labor unions, and certain other employers. The prohibitions of Title VII are limited to circumstances where an employee does not have a reasonable and justifiable reason for discriminating against an employee or prospective employee. A good faith reason for discriminating against an employee based upon a protected class is known as a “bona fide occupational qualification” (BFOQ). If a specific job or position has a BFOQ that has the effect of discriminating on the basis of religion, sex, or national origination, such discrimination is not illegal. The key aspect of a BFOQ is that the qualification(s) must be reasonably necessary to the normal business operations of the business and the performance of the duties of that position.
• Note: No BFOQ exists for intentional discrimination based upon race or color.
• Discussion: What was happening in 1964 that gave rise to passage of the Civil Rights Act? What do you think are the underlying objectives of Title VII? Do you think Title VII is effective in accomplishing these objectives? Are there any unintended consequences? Why do you think Title VII specifically protects individuals with these characteristics? How do you feel about the exemption of discriminatory practices if a bone fide occupation qualification exists? In your opinion, how necessary should the qualification be to the job for a discriminatory practice to be legal?
• Practice Question: Carrie owns a small business in South Carolina. She does not like to work with men and is resolute about only hiring female employees. What do you need to know to determine whether this practice is legal? Hint: Think about Carrie’s business, state law, and the types of job.