One common issue amongst people who find themselves in a bad work environment is a pervasive misunderstanding of what statutory qualifications must be met to be the victim of discriminatory employment practices, at least according the Civil Rights Act. This is not saying that discrimination cannot come in many forms, but it must be taken into account that there are numerous laws and acts that have outlined protected classes, each of which deserves its own blog. However, the most common inquiries to come across my desk are allegations of discrimination against protected classes as outlined in Title VII of the U.S.C. General confusion is problematic since, in many cases, when an individual falsely believes they have an actionable cause, they may find themselves on a wild goose chase. This is a harmful situation for myriad reasons; at the least it will end up a waste of time and resources for the individual and may also disillusion them towards the legal system which they feel is not accommodating them. No one should feel as if they have been left out in the cold. In an effort to inform and educate, may I present a short treatise on “Unlawful Employment Practices” as outlined in Title VII as well as what employee classes are protected. As a quick note, the following is directed specifically at Title VII, which primarily deals with discrimination in the workplace, and not other general federal and state statutory codes. Your employer may be doing everything right according to Title VII and everything illegal according to some other codification, thereby potentially opening other avenues of action not discussed herein. Also, when evaluating your situation, it is important to note this distinction and act accordingly (may I recommend reading the article on retaliation).
Title VII is a long and complex section of the United States Code, and as such, I will be picking the most relevant sections to highlight the topics discussed in this specific blog. This article will not be dealing with the Equal Employment Opportunities Commission in depth, which is outlined in Title VII. However, should you feel that you are being victimized in the workplace due to discriminatory practices affecting the below classifications, it is important that you contact the “EEOC” as quickly as possible.
I first want to start with the basics and layout what Title VII defines as an employer and employee since these terms will pertain to most people in the workforce (as the language implies, there may be some exceptions that are omitted, but these omissions will generally be topical and only effect a small percentage of working Americans). The basic definition of an employer, according to 42 U.S.C. 701(b), is as follows:
“The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person, but such term does
not include (1) the United States, a corporation wholly owned by the Government of the United States, an indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of Title V)”
This is obviously very generalized and inclusive with the one major disqualifier being the number of employees in an organization’s employ. Though this may seem a trivial distinction, if your company employs less than 15 people, it will likely not qualify for any investigative or corrective action through the EEOC barring certain violations. Again, if you are unclear I recommend you contact an attorney to interpret your particular situation.
Regarding the term “employee”, 42 U.S.C. 701(f) defines it as:
“The term “employee” means an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any state or
political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making
level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term
includes an individual who is a citizen of the United States.”
As you can see, the definition for “employee” also is very open and encourages a vast range of interpretation. Essentially, it precludes only those who hold a public office, whether through election or appointment. However, though still considered an “employee”, those employed within a State or Federal agency or subdivision may be subject to civil service laws that could modify or change outright any pursuance of an action. If you are a state or federal employee, it is important to contact an attorney who specializes in dealing with governmental entities. The above two definitions indeed provide the foundation upon which any Title VII unlawful employment practices claim is built and, though they seem basic, these basic criteria are absolutely vital and must be met.
Alright, so the above paragraph sets forth the basic definitions and establishes what the U.S.C. defines as employer and employee. What about the “Unlawful Employment Practices” that are so often misinterpreted? How does the U.S.C define those and how is it that they can be so confusing? Well, the U.S.C. provided definition is short and simple, but as with anything, can be open to interpretation depending on one’s situation. In 42 U.S.C. 703(a), unlawful employment practices are defined as follows:
“It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any 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; or
(2) 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.”
As you can see above, a Title VII is blunt and direct regarding employer violations. Again, I want to emphasize that there are other acts and entities which may have jurisdiction over a particular situation, but this article is only dealing with Title VII violations. For instance, if you are disabled, or a veteran, and feel you have been discriminated against, you may not see your classification above. This is because those particular needs and issues are dealt with elsewhere in the U.S.C. so do not be discouraged. This definition is then further expanded upon in section 703 but ultimately the above is truly the “litmus test” that can be used to determine whether an action is discriminatory.
It is worth noting one other important unlawful practice that is outlined in section 704(a). As stated, it is outright illegal for an individual to enact “discrimination for making charges, testifying, assisting, or participating in enforcement proceedings.” This outlawed practice is colloquially referred to as “retaliation”. An important distinction here is that, for Title VII retaliation to take place, it must be in response to an employee having filed a claim against an employer for unlawful practices as outlined above.
So now that you have seen the brevity and clarity with which these definitions are presented in Title VII, you may still be asking “how do people get this confused?” Well, in truth it is not so much misinterpreting the distinctions and classifications as it is handling one’s self when these are violated. A knee-jerk first reaction is to contact an attorney and see if a lawsuit is possible. This is not a necessarily a bad thing to do, most of the time an attorney can provide empowering information. However, “hostile” workplaces or “retaliatory” and “constructive termination” practices cannot be established until a complaint has been lodged, whether with the organization’s internal human resource department, or a governmental watchdog. Furthermore, these terms are generally not applicable if the above sections of Title VII are not met. For example, it is not retaliation if your boss makes you work on Saturday because he found out you and his wife once dated in high school. Some people can be vindictive codgers, but this does not necessarily mean you are subjected to a hostile workplace. If you have lodged a complaint meeting Title VII criteria that is being investigated and, for no real reason, you boss relocates you to a storage locker in the basement, this is likely retaliatory. I joke about this not to make light of a very harmful situation, but to outline the differences and provide clarity.
This article attempts to deal with complex issues in a condensed form and there may be lingering questions. Lucky for you, the employment law department at Fears
Nachawati specializes in this type of litigation and we are happy to answer any questions you may have. Please give us a call at (214) 890-0711 if you feel you have been the victim of unfair labor practices within your workplace. We give free evaluations and will assist in any and every way we can!