Equal Employment Opportunity Law (Title VII)
Introduction
Protected Classes
Covered Entities
Initially, the Act had assumed an exclusionary approach only limiting itself to matters within private entities that had 20 or more employees. However, as indicated before, the Act has undergone through a series of amendments. It has since entertained a number of employers drawn from diverse origins. In addition, the Act now covers for employers with as little as 15 or more employees. The spirit in the amendment perhaps is in line with the overriding objective. The mischief the Act intended to address does not merely arise within private employment only. It equally could arise within public employment as well as non-profit organizations. Thus the amendments were informed by the need to ensure the Act in its totality effectively addresses the initial concerns. In that breadth, it is notable that the CRA 91 extended the covered classes by the Act and this is the position up to date. The classes are private, state, local and federal employers. In addition, institutions such churches, higher education, among others have become subjects of the Act. However, it is noteworthy that the number still plays a fundamental role. The Act will only apply to employers who have in their employment 15 or more employees. Indeed, the Act does not specify whether this number includes part time employees or is limited to full time employees. However, a purposive interpretation would lead one to the conclusion that the number is inclusive of part time employees. On that footing, therefore, it can be surmised that the Act has since departed from its exclusionary approach and taken a position that is inclusionary in nature.
Covered practices
While the Act can be interpreted differently on a case by case basing, it ought to be appreciated that the main covered practice by the Act is nondiscrimination. The Act attempts to realize a non-discriminative society and work environment. The intention of the Act is essentially informed by Constitutional Amendments and the need to give guidelines in the field of employment law and policies. Indeed, the Act essentially covers matters of discrimination and or reasonable accommodation. However, as has been noted, an individual could argue for a practice outside the mentioned ones and use the provisions of the Act to convince the Court to rule in its favor. In discrimination, the Act specifically covers matters of terms, conditions, privileges, segregation, classification and retaliation. The Act provides that employees ought not to be subjected to different sets of privileges, conditions, segregated, among other things based on the classes previously mentioned. It is envisaged by the Act that the employer would be sensitive to the concepts of fairness, equity and justice. In that breadth, the unfair and unjust practices mentioned are prohibited under the provisions of the Act. In addition, the Act demands of the employer to display a level of reasonable accommodation. In that context, the employer is expected to entertain the employee’s beliefs, practices and convictions to the extent that they are reasonable and consistent with the laws. A good example is an employee’s belief on Sabbath day and the need to have an off on that particular day. Employers and employees may profess different faiths, however, it is the expectation of the Act that the employer would reasonably entertain the belief of the employee and facilitate him or her to the best extent possible. It is equally on that footing that the Act does not necessarily close the covered practices to a definite number. The list as provided by the Act is merely suggestive and not conclusive. It is, therefore, depends on a case by case basis.
Administrative Procedures
No law bars the claimants from seeking legal redress at the federal courts on a personal level against any of the covered entities. However, as a matter of practice, it has often been the case that the EEOC and the DOJ take the case up on behalf of the claimants. In some cases, it has occurred that the two have failed to take up the case and the option remains for the claimant to personally litigate in the federal courts. The EEOC appears to have a higher role when it comes to administrative procedures. It has the mandate to administrative over all claims against covered entities and may litigate against private individuals at the federal courts. In addition, the EEOC may investigate, conciliate and even conclude cases as a matter of expediency. However, their decision against federal agencies is not binding and therefore the need for further litigation in the federal courts. In addition, the DOJ may litigate at state and local levels on behalf of the claimants at those levels. At the federal level, the jurisdiction on procedural administration remains with the EEOC.
Remedies
The Act provides for two main classes of reliefs, these are, the legal reliefs and the equitable reliefs. The former are intended for a punitive and precautionary function while the latter seeks to restore the party to his previous position otherwise known as the ex-ante position. It is, however, not necessarily the case that the court will find in favor of the claimant. It may be the position that the agency, private or public employer was right and the claimant shall not get any of the reliefs. In addition, a claimant may be given both or either of the reliefs. The equitable remedies include reinstatement where the court rules that the person be returned to his position of employment or rank, declarative relief where the court makes a declaration such as making a rule made illegal and invalid, injunctive relief where the court bars the employer from continuing to perform or effecting a rule, and affirmative relief where the court orders the employer to act in a particular manner in actualization of affirmative action. On the other hand, the legal reliefs include compensation and damages. While the compensation serves to cover the claimant for the losses incurred due to the inconvenience, the damages serve to punish the employer from his actions. In that regard, it has been public policy that damages can only be awarded against private employers for awarding the same against public employers is equated to punishing the taxpayer.
Judicial Scenarios
There are a number of judicial scenarios that the claimant may rely on in the case. In Title VII, for instance, some of the common judicial scenarios include individuous disparate treatment, pattern and practice, adverse impact, among others. Individuous disparate treatment seeks for the defendant employer to give an explanation for the decision he had arrived at and then seeks for the claimant to advance an argument against the explanation. It is on that premise that the court would rule and settle the dispute in favor of the party that presents a cogent and proper argument on the face of record. The pattern or practice relates to the occurrence of a particular practice of pattern in the employment which tends to work in favor or against a given group of parties in employment. It best illustrated itself in the case of International Teamsters v United States in which the defendant employer was unable to explain the un-proportionate representation of minorities in the higher and lower paying routes. Lastly the adverse impact occurs when the employer uses a certain approach that happens to exclude a certain section of the employees from a process in high percentages. This equally amounts to discrimination. All in all, the nature of judicial scenarios may actually overlap and in some cases more than one scenario may exist.
Landmark cases shaping the law
Opposing outcomes
The case of Albemarle v Moody can be used illustratively to show two opposing outcomes. For the outcome to be in favor of the employer, he had to prove that the selection criteria employed was necessary and encompasses fundamental considerations of the task at hand. On the other hand, for the employee to win, he had to prove that the alternative selection criteria existed which could have still sufficed but without the discrimination.
References
Arthur, W., Doverspike, D., Barret, G., & Miguel, R. (2013). Chasing the Title VII Holy Grail: The Pitfalls of Guaranteeing Adverse Impact Elimination. Journal of Business and Psychology, 32-43.
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Gutman, A., Koppes, L., & Vodanovich, S. (2010). EEO Law and Personnel Practices, Third Edition. New York: Psychology Press.
Lewis, D. L. (2009). Essentials of Employment Law. New York: CIPD Publishing.
McKendrick, E. (2012). Contract Law: Text, Cases, and Materials. London: Oxford University Press.
Miller, R. L., Jentz, G. A., & Cross, F. B. (2008). Business Law: Text and Cases: Text and Cases. New York: Cengage Learning.
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Schmidt, D. (2008). Dealing with Pluralism: A Response to Michael Zigarelli's Article on How Title VII Erodes the Mission of the Religious University. International Journal of Value-Based Management, 61-73.
W100 team. (2012). Block 4: Adjudication . In Rules, Rights and Justice: An Introduction to Law. Hampshire: Hobbs.
