Title VII was enacted as a comprehensive prohibition on private acts of employment discrimination. It forbids discriminatory employment practices based on the race, color, religion, sex, or national origin of the applicant. These categories may, however, be used to differentiate between applicants when sex, religion, or national origin is a bona fide occupational qualification (BFOQ). A BFOQ is very narrowly defined as an actual job requirement, not merely a customer or employer preference. For example, race is never considered a BFOQ (Crouch, 2001, 38-40).
Title VII also contains a nonretaliation provision which prohibits all employers defined in the act from discriminating against any employee or job applicant who has invoked his or her rights under Title VII or who has assisted with or participated in any proceeding brought by someone else (Gregory, 2003, p. 28).
In the analysis of the courts, the alleged sex discrimination action need not only be based upon a consideration of an unalterable characteristic (like gender) possessed by the discriminatee but which is not possessed by the discriminator (Minchin, 2001, p. 50). Thus, not only are acts such as terminating female employees when they marry or refusing to accept employment applications from any female actionable, but also acts taken by a member of one sex against a member of the same sex can be actionable. A demand for sexual favors directed by one male to another as a condition of employment can be just as discriminatory as a similar demand directed by a male to a female.
Title VII is applicable to all employers of more than fifteen persons, and it specifically covers almost all state and local government employees as well as employees of most educational institutions. It is enforced by the EEOC, which has the authority to process and investigate any complaints. The EEOC may also bring suits in federal court if necessary. A charge brought by the EEOC is based on what the EEOC perceives to be a pattern or practice of unlawful discrimination which adversely affects an entire class of individuals. The EEOC may also conduct industrywide compliance reviews.
If the discrimination found by the EEOC in state or local government cannot be corrected informally, the EEOC may refer the matter to the U.S. Attorney General. In all other cases, the EEOC may go to federal court to enforce the law (Gregory, 2003, p.28-29). Enforcement of Title VII is not limited to EEOC actions, however, because the legislation also has individual and class causes of action. This type of charge originates from an individual or group of individuals who allege that they were adversely affected by some act of unlawful discrimination (Gregory, 2003, p. 29).
Organizations can bring discrimination claims on behalf of their members if the alleged discriminatory action injured its members, if the claim can proceed without the participation of those injured members, and if the claim is relevant to the organizations purposes. The requirements for filing a charge include the following:
Once these requirements are met, the EEOC will proceed with the charge.
The remedies of both injunctive and affirmative relief are available to the winning party in an employment discrimination suit. The prevailing party may be awarded back pay and attorneys fees as well as an injunction prohibiting the employers unlawful action. In addition, the court may order the employer to cease its discriminatory practices, to reinstate employees, and to implement an appropriate affirmative action plan to eliminate existing discrimination and prevent its recurrence.
These remedies are guided by the two goals of the act: (1) to achieve equality of employment opportunity by removing barriers based on race, color, religion, sex, or national origin, and (2) to make the victim of unlawful discrimination wholeto put the victim in the position he or she would have been in had the discrimination not occurred.Both of these approaches have limitations. Even taken together, they are not sufficient to enforce a prohibition against sex discrimination(Saguy, 2003).
Although the Equal Pay Act applies to all employers, Title VII has been limited to employers of more than fifteen people. Thus, many smaller businesses are not subject to the mandates of Title VII. The Equal Pay Act is limited in other ways. For example, it is directed only to discrepancies in pay levels once on a job. It does not address the problem of discriminatory hiring or advancement policies.
The basic weakness of these acts is that neither is all-encompassing. They fail to address the overall problems of sex discrimination that exist outside of the workplace (Saguy, 2003). Thus, very few of the problems of discrimination encountered in athletics are addressed by either act. This legislation provides potential relief only in athletic employment.Another major problem in pursuing litigation under these statutes is the cost.
Neither statute provides any guaranteed basis for the eventual recovery of attorneys fees and/or double or triple damages. Thus, litigation is not an option for many of those who might wish to file claims. Cases are seldom pursued, and the effectiveness of the legislation diminishes as the chance that an employer will be punished lessens. One last problem is that courts have been reluctant to interpret the statutes broadly.
This reluctance stems from the fact that hiring and salary decisions are well within the area of management prerogatives allotted to employers. The court is reluctant to interfere in any discretionary decision unless there has been a clear abuse of that discretion. Thus, it is very difficult to establish a case based on a complaint regarding practices in either of these areas. Usually, the evidence is open to a variety of interpretations. Such circumstances can make it difficult or even impossible for a plaintiff to prevail in a sex discrimination case under application of the aforementioned statutes.
Crouch, Margaret A. (2001). Thinking about Sexual Harassment: A Guide for the Perplexed. Oxford University Press.
Gregory, Raymond F. (2003). Women and Workplace Discrimination: Overcoming Barriers to Gender Equality. Rutgers University Press.
Minchin, Timothy J. (2001). The Color of Work: The Struggle for Civil Rights in the Southern Paper Industry, 1945-1980. University of North Carolina Press.
Saguy, Abigail C. (2003). What Is Sexual Harassment? From Capitol Hill to the Sorbonne.University of California Press