Title VII’s protections and limitations

1. Protected Categories

Title VII generally prohibits covered employers from discriminating on the basis of race, color, religion, sex, and national origin. More specifically, Title VII makes it an unlawful employment practice for a covered employer:

  • To fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of the individual’s race, color, religion, sex, or national origin;
  • To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin;
  • To discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training;
  • To discriminate (as in, retaliate) against any individual because he has opposed any practice that was made an unlawful employment practice by Title VII (the “Opposition Clause”), or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Title (the “Participation Clause”);
  • To print or publish or cause to be printed or published any notice or advertisement relating to employment indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.

Title VII also prohibits discrimination against an individual because of his or her association with another individual of a particular race, color, religion, sex, or national origin. Nevertheless, covered employers are still allowed to discriminate on the basis or religion, sex, or national origin (but not color or race) “in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” This defense is commonly referred to as the BFOQ defense.

2. Prohibited Conduct

Title VII prohibits a covered employer from discriminating against an employee on the basis of race, color, religion, sex, or national origin. This prohibition includes discrimination on the basis of the employee’s friendship with and/or advocacy on behalf of a member of a protected class.

a. Disparate treatment and/or disparate or adverse impact

A plaintiff of an employment discrimination case may use the theories of disparate treatment and/or disparate or adverse impact in order to prove a claim of unlawful Title VII discrimination. Disparate treatment (including mixed motive) means different treatment and focuses on the employer’s discriminatory intent. Disparate or adverse impact, on the other hand, focuses on discriminatory results that come out of seemingly neutral and non-discriminatory employment or practices.

b. Retaliation

Title VII prohibits covered employers from retaliating against an employee or applicant who: (1) opposes any practice that Title VII has made unlawful; or (2) makes a charge, testifies, assists, or participates in any manner in an investigation, proceeding, or hearing under Title VII. Courts have interpreted this prohibition against retaliation very broadly.

c. Harassment

Encompassed within Title VII’s prohibition of discrimination is a ban on harassment because of an employee’s protected classification. Notably, Title VII imposes liability against covered employers not only for harassment perpetrated by their own employees, but also for third party harassment where the employer is aware of or ratifies (that is, approves of) such harassment. This includes a failure of the employer to investigate and remedy the third-party harassment after learning about it. Of course, although harassment is a form of discrimination, you do not need to prove discrimination in order to prove harassment.

d. Failure to accommodate for religion

In addition, Title VII requires covered employers to make reasonable accommodations (unless it would create an undue hardship) for one of the protected classifications: religion.

3. Categories not protected

a. Sexual orientation

Title VII does not prohibit discrimination on the basis of sexual orientation. However, a creative plaintiff attorney might be able to overcome Title VII’s failure to prohibit sexual orientation discrimination by using a gender stereotyping theory to bring these claims under gender discrimination. This strategy has had mixed results in the courts, so you should ask your attorney if this theory has had success in your jurisdiction.

b. Marital and parental status

Title VII does not prohibit discrimination on the basis of marital status or parental status. However, an employer may not enact a policy or practice that discriminates against mothers unless it also discriminates against fathers, because that would constitute unlawful gender discrimination.

c. Political affiliation

Title VII does not prohibit discrimination on the basis of political affiliation. Although not protected by VII, political affiliation of public employees is protected by another federal statute, 42 U.S.C. § 1983, which prohibits public officials and other employees who are acting “under color of law” from depriving another person of any rights, privileges, or immunities of the Constitution. This includes First Amendment political affiliation rights.

d. Age and disability

Although not protected by Title VII, other categories, like age and disability, are protected by other federal statutes, such as the Age Discrimination Employment Act and the Americans with Disabilities Act of 1990.

e. Transsexualism and transvestites

Title VII does not prohibit discrimination on the basis of transsexualism. As with sexual orientation claims, however, a creative plaintiff attorney may be able to overcome Title VII’s failure to prohibit transsexualism discrimination by utilizing the gender stereotyping theory.