Editor's note: Katie Clarey is new to both the HR Dive team and HR. This piece is the fifth of her new series, Back to Basics. If you're new to the field (or just need a little refresher), follow along as she speaks with experts and lays out the basics of federal employment law. She can be reached at [email protected]
Let me set a scene. Dan works for a carwash full time. He wipes down the vehicles after the sprinklers rinse them of their suds and the fans dry them off, save a few droplets, which Dan takes care of. Dan's manager has him work Monday through Friday, and he sometimes works Sundays, because the carwash staff takes weekend shifts in rotation. One week, Dan's manager tells him she's scheduled him to come in for a Saturday shift. Dan tells her this won't be possible — he's Jewish and recognizes the Sabbath, which means he can't work on Saturdays.
What's the manager's next move? She really needs him to work, but she seems to remember something about religious accommodations from her managerial training. Can she tell him he has to work? Does the law obligate her to give him the time off?
As someone brand spanking new to HR, I know that Dan is protected from discrimination based on his religion by Title VII of the Civil Rights Act of 1964, but I can't answer all of these questions (granted, hypothetical questions) on my own. So I gave Robin Shea a ring. Shea has practiced labor and employment law for 30 years, and she's now a partner at Constangy Brooks, Smith & Prophete in Winston-Salem, North Carolina. "Title VII prohibits employment discrimination on the basis of race, sex, national origin, color and religion. It applies to employers with 15 or more employees," she told me. "Title VII is probably one of the easiest employment laws for employers to comply with."
No employment law I've written about for the Back to Basics series has struck me as simple, but Title VII does seem more straightforward than some of its counterparts. The law takes on more nuance the more thoroughly it is explained, so let's get going.
Treat everyone the same?
When Title VII was enacted, most interpreted it to mean that employers needed to treat everyone the same. For the most part, that remains the general idea today. According to the U.S. Equal Employment Opportunity Commission (EEOC), "Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin." In the 1980s, the courts began to interpret harassment based on any of the characteristics Title VII defines as unlawful discrimination, too. "Harassment was not mentioned anywhere in the law, so that was a court interpretation that has been accepted by everybody, including the U.S. Supreme Court," Shea said.
The Pregnancy Discrimination Act amended Title VII in 1978, which added another protected class of workers under one that already existed. "In essence, it provides that pregnancy discrimination is another form of sex discrimination," Shea said.
Title VII may undergo further amendments. "The latest hot issue is whether sex includes sexual orientation or gender identity," Shea said. "I think the Supreme Court is going to agree to resolve that — I hope they will." The EEOC and the U.S. Department of Justice hold contrary opinions as to whether Title VII protects employees from discrimination based on sexual orientation or gender identity. Even so, Shea advises her clients to prohibit any discrimination based on either of those things. "A lot of states already prohibit LGBT discrimination under state law, so employers have to beware of that, and make sure they're in compliance with applicable state law," Shea said.
Two U.S. circuit courts of appeal have ruled that Title VII does include sexual orientation discrimination. "Any employer in Illinois, Wisconsin or Indiana or in New York, Connecticut or Vermont would actually have to avoid discrimination based on LGBT status under Title VII," Shea said. Another, the 6th Circuit, ruled that Title VII prohibits discrimination based on gender identity. Employers in Michigan, Ohio, Kentucky or Tennessee will need to take note of that as well.
"Even if it's legal to discriminate based on sexual orientation or gender identity, there are probably claims that LGBT individuals could raise," Shea said. If a worker harassed another worker based on his or her sexuality or gender identity, that person could make a claim based on intentional infliction of emotional distress or even assault and battery, depending on how he or she was harassed, Shea said.
Treat some people a little differently
The original interpretation of Title VII may have been to treat everyone the same, but the law was amended to require employers to make accommodations so as not to discriminate based on religion. "That's really a little bit different from treating everybody the same," Shea said. "It's treating people differently because they have some protected reason that they need special accommodations."
Turning back to Dan, our hypothetical worker, it seems that his manager would need to accommodate his schedule under Title VII so he can practice his religion. According to EEOC's website, "The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business."
Title VII's pregnancy amendments did not similarly require accommodation for pregnancy, but it's worth noting that the Supreme Court in Young v. UPS said accommodations might have to be made for pregnant workers if the employer accommodated similar restrictions for others. This means an employer would need to articulate a non-discriminatory reason for not accommodating a pregnant employee as it would other employees, experts have previously told HR Dive.
Employers should also know that they may discriminate by applying a neutral policy that excludes a protected class of employees, Shea noted. That's called disparate impact. So let's say that Dan lives in an area with a high population of religious Jews, most of whom celebrate the Sabbath. If the carwash makes it a policy to hire only employees who can work on Saturdays, which is the Sabbath, they automatically exclude religious Jews and opens itself up to litigation.
I hope you've been refreshed by Title VII's relative simplicity. I admit that a fog of confusion rolls in for me when other laws and court decisions become relevant because of Title VII, but Shea had it right when she told me that employers implement this law with more ease. That said, I've compiled a list of best practices to help employers assess how well they comply with Title VII.
- Harassment training: Shea recommends employers hold harassment training once a year, with separate sessions for employees and managers. Employees need to know how to recognize harassment and how to complain about it. They also need to be assured they can deal with harassment without fear of retaliation. Managers need to know all that, Shea said, plus what to do with a harassment complaint once it comes to them.
- Process and action: Employers must ensure they implement a fair process with which they handle claims and deliver an appropriate response.
- Safe space: Employers need to create a safe space for managers who may be named in complaints alleging they harassed someone or discriminated against them. Regardless of the claim's status as true or untrue, managers need to be able to speak with someone on staff when they're feeling frustrated so they can return to the larger workplace and conduct themselves professionally, Shea said.