Title VII: An Overview of Some Common Employer Pitfalls

Cleveland State University EngagedScholarship@CSU Cleveland State Law Review Law Journals 1974 Title VII: An Overview of Some Common Employer Pitfalls Thomas C. Schrader Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Civil Rights and Discrimination Commons, and the Labor and Employment Law Commons How does access to this work benefit you? Let us know! Recommended Citation Thomas C. Schrader, Title VII: An Overview of Some Common Employer Pitfalls, 23 Clev. St. L. Rev. 245 (1974) This Article is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact . Title VII: An Overview of Some Common Employer Pitfalls Thomas C. Schrader* T ITLE VII OF THE CIVIL RIGHTS ACT of 1964 and other supporting acts and laws have established certain employment rights for the vast majority of employees throughout the United States, and the procedures for enforcing those rights. Substantial efforts have been made by federal and state agencies, as well as minority interest groups, to publicize the laws and their enforcement procedures. In 1974 it can be safely assumed that virtually all employees affected by the equal employment laws are familiar with their rights or, minimally, know where to obtain sufficient information to be fully apprised of those rights. Surprisingly, the corollary is not true. Employers often are woefully uninformed regarding permitted and prohibited employment practices. Often, employment relations are a minor or even insignificant facet of the general operation of a business. Problems rarely occur as a result of an overt desire to violate the equal employment laws or the rights of any employees. On the contrary, management's policies and practices are most often genuinely motivated by a desire to maintain or improve the conduct of business. However, decisions implemented without sufficient knowledge of or concern for protected employee rights can prove to be disastrous, as will be discussed later in this article. Equal Employment Laws Generally Prior to a discussion of the many employment pitfalls in the path of the employer, it is essential to have a basic familiarity with the applicable laws. Title VII of the Civil Rights Act of 1964, as amended in 1972, is relatively simple in concept.' As affecting employers, Section 703 of the Act provides: It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge 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 * A.B., J.D., University of Detroit; Member of the Ohio and Michigan Bars. 142 U.S.C. § 2000e et seq. (Supp. II, 1972), amending 42 U.S.C. § 2000e (1970). Published by EngagedScholarship@CSU, 1974 1 CLEVELAND STATE LAW REVIEW [Vol. 23:245 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. 2 It should be noted that there are, of course, many other provisions in the act. However, the foregoing are the fundamental prohibited employment practices. There are additional federal laws which prohibit discrimination in employment, two of which have significant impact. The Age Discrimination in Employment Act of 19673 forbids discrimination in employment on the basis of age, against persons who are between the ages of forty and sixty-five. The Equal Pay Act of 19634 requires that all employees receive equal pay for equal work, regardless of sex. It is Title VII of the Civil Rights Act of 1964 which has provided the greatest number of problems for the employer, resulting in a substantial amount of litigation throughout the country. As a result, this article will focus on the enforcement provisions contained within it, as well as on the burgeoning body of federal court decisions under it. To be subject to any of the provisions of Title VII, an employer must meet certain conditions. These conditions are contained within the definition of an employer as stated in Section 701 (b) : 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 a person .... 5 Basically, then, there are three conditions which, if present, require the employer to operate within the limits of Title VII. These conditions are: A. the employer conducts a business in an industry affecting interstate commerce B. there are 15 or more persons employed by the employer C. the employer has employed at least fifteen persons for each working day in each of twenty or more calendar weeks during either the current year or the preceding year. 242 U.S.C. § 2000e-2 (Supp. II, 1972), amending 42 U.S.C. § 2000e-2 (1970). 3 29 U.S.C. § 621 et seq. (1970). 429 U.S.C. § 206(d) (1) (1970). 542 U.S.C. § 2000e(b) (Supp. II, 1972), amending 42 U.S.C. § 2000e(b) (1970). https://engagedscholarship.csuohio.edu/clevstlrev/vol23/iss2/23 2 TITLE VII: COMMON EMPLOYER PITFALLS 19741 It should be obvious that most employers meet these conditions.6 There must be included in this discussion of applicable laws, the issuance of Executive Orders Nos. 112461 and 11478. Executive Order No. 11246 was published in September of 1965 and was subsequently amended in 1967 to include sex discrimination.9 Revised Order No. 4,10 effective September 30, 1972, and Revised Order No. 14,11 effective April 15, 1974, coupled with the Executive Orders, provide certain affirmative action requirements for government contractors or their subcontractors. Section 60-60.2(a) of Revised Order No. 14 provides: Each prime contractor or subcontractor with 50 or more employees and a contract of $50,000 or more is required to develop a written affirmative action program for each of 12 its establishments .... For certain government contractors and subcontractors, mere compliance with the various employment laws is clearly not sufficient. They are required to develop an affirmative action program. The enforcement agencies consider "affirmative action" to be active efforts by an employer to eliminate any racial, sexual, or other minority imbalances which may exist in the employer's work force. However, an affirmative action program acceptable to the Office of Federal Contract Compliance (OFCC) must include an analysis by the employer of its under-utilization of minority employees, establishment of goals or "quotas" relatin (...truncated)