Title VII of the Civil Rights Act of 1964

One of the more difficult problems for employers is harassment by unknown co-workers. The law was designed for harassment by supervisors. It functions not so well when the harassment is caused by co-workers. In Tolliver v. YRC, Inc., No. 17-10294, 2018 US LEXIS 17806 (5th Cir. 6/28/2018), African-American workers were harassed in various ways for over 15 years. The black workers encountered racist graffiti, nooses, and other incidents. The district court refused to allow evidence of incidents which occurred beyond the 300 day limitations period. So, the court only addressed two incidents, a noose left in YRC facilities and racist graffiti left on a YRC truck. It was not known who committed these acts.

The court found these two incidents were not sufficiently pervasive or severe to amount to a hostile work environment. The court noted that the plaintiffs did not contend that the two incidents were directed toward them. And, said the court, “for the most part,” the plaintiffs learned of the two incidents second-hand.

But, even if the two incidents were sufficiently severe or pervasive, management took prompt and remedial action. The company posted a $25,000 reward for information about the incidents. It interviewed hundreds of employees. It hired security guards, and it contacted law enforcement. The employer also provided weekly reminders about its non-discrimination policies. The employer did not discipline anyone, because the perpetrators were not found.

As the court added, Title VII is not a behavior code. It prohibits discrimination. Essentially the court is saying Title VII does not require the employer to deeply investigate acts of apparent racism. Most courts require reasonably swift action, and not much more than asking employees if they know who committed the acts. This decision is in line with those prior authorities. The Fifth Circuit affirmed the grant of summary judgment. See the decision here.

The Department of Justice has filed suit against the City of Selma for violation of Title VII of the Civil Rights Act of 1964.  Adam Sadler filed a charge with the EEOC claiming he had been demoted to firefighter after he complained about the Chief of the Fire Department.  The former lieutenant complained that the Chief uttered racial slurs.  See San Antonio Express News report.  The former lieutenant was demoted within a month of complaining about the racial slurs. 

Mr. Sadler’s EEOC complaint was referred to the DOJ, according to the news report.  That probably means the EEOC found in favor of Adam Sadler, something the EEOC very rarely does.  Once an employee receives a favorable finding, it must go to DOJ for review when the employer is a governmental entity.  DOJ then decided to file suit here in San Antonio.  It is also very rare that DOJ finds a case worth pursuing.  I guess it will snow this coming July……

I spent twelve months in Iraq.  We taught and coached Iraqis on the finer points of democracy.  I served with some 140,000 other soldiers and service members.  As soldiers, I thought we did pretty well under the circumstances.  For a country long accustomed to strong central governance, there was visible progress on their ability to govern themselves.  But, we could not teach them tolerance.  

I know our presence, our money, our training served as a brake on their worse instincts.  We did solve some problems at the time by asking U.S. Army higher-ups to exert pressure on Iraqi higher-ups.  The U.S. Army is gone, now.  The Iraqis must apply their own brake now.

Sectarian strife is rising again.  See CBS news report.  Someone, surely Sunnis or Al Qaeda, are attacking the Shiites, again, as they simply proceed to holy sites on holy days.  As before, I am sure Al Qaeda or its allies, seek to provoke Shiite reprisal for reasons best known to the terrorists.

Its a place where the tension is just below the surface.  The Sunni-Shiite differences are superficial, in my opinion.  The Shiite revere past Imams.  The Sunnis do not appreciate their clergy in the same way.  These and other reasons separate the two Muslim sects.  They worship differently, yet they worship the same god.  U.S. citizens may not believe it, but many, a great many Muslims are very gentle and decent.  It is unfortunate that extremists of both sects can generate so much violence so easily. 

At a Army Reserve school many years ago, our instructor was a college professor in his civilian life. In his civilian job, he was visiting science colleagues in Malaysia.  In Malaysia, they have a large ethnic Chinese community.  The Malays and Chinese do not get along there, either.  The Reserve instructor, a Lieutenant-Colonel, told us how he was driving somewhere with a Malay colleague.  The Lieutenant-Colonel saw a horrible car wreck.  A man was killed.  He remarked how bad it looked.  His Malay friend somehow recognized the victim as Chinese.  The Malay merely remarked, "good – one less Chinese."  The instructor was describing intolerance.  Not to diminish racial prejudice, he did want to put the issues of intolerance in a world perspective. 

As a civil rights lawyer, I see racial and religious intolerance frequently.  But, thank goodness, our intolerance is nothing like the intolerance we see in elsewhere in the world.  I cannot help but think that our mechanisms, such as the Civil Rights Act of 1964 have done much to relieve the pressure of intolerance and hate.  I left Iraq very appreciative of our country and all that we have.  

The EEOC has been hit with another sanction of attorney’s fees.  A court assessed $2.6 million in attorney’s fees against the EEOC due to a lawsuit they filed which they lost.  See Workplace Prof blog post.  The EEOC had sought class action status in EEOC v. Cintas and lost.  Because the EEOC did not attempt conciliation prior to suit, the federal court dismissed the action.  See the court decision.  The court found that conciliation was required as part of the requirement to exhaust administrative remedies.  

Title VII of the Civil Rights Act of 1964 has requires that when the EEOC finds "reasonable cause" to believe that discrimination has occurred, then the EEOC must attempt conciliation or settlement.  This requirement was an early attempt at lawsuit reform.  It requires that individuals bringing suit first attempt all non-lawsuit remedies first.  

In EEOC v. Cintas, the EEOC had been denied class action status.  It then sought a "pattern and practice" type allegation on behalf of thirteen individual women and was again re-buffed.  Responding to the employer’s claim that it had not attempted conciliation, the EEOC argued that it did attempt conciliation against Cintas previously as part of its class action suit – which later failed. But, that conciliation apparently did not include these thirteen individual women.  So, yes, the EEOC attempted conciliation on behalf of a class of women, but apparently did not attempt conciliation on behalf of these thirteen ultimate plaintiffs.  This is an important distinction.  But, does this distinction make a difference?  Would Cintas have been any more receptive to conciliation if the plaintiffs were thirteen individual women, instead of a class of women?

As Workplace Prof points out, this decision and others like it are tying the EEOC’s hands in regard to pursuing class actions or multiple plaintiff lawsuits.  The EEOC lacks the resources to represent individual plaintiffs.  They simply do not have enough lawyers.  So, they have been trying to focus on larger lawsuits, such as class action lawsuits and "pattern and practice" lawsuits.  This federal court decision will make it more difficult for the EEOC to focus on systemic cases.  We taxpayers will get less bang for our buck from this important federal agency.  And, Cintas skates after having been found reasonably likely to have discriminated against some women. 

 Title VII of the Civil Rights act of 1964 prohibits discrimination based on sex, color, religion, and national (ethnic) origin.   Other statutes prohibit discrimination based on age and disability.  For Title VII to apply to your company, you must have 15 or more employees.  For the Age Discrimination in Employment Act to apply, you must have 20 or more employees.  Think about that.  Thousands of employers are not covered by Title VII or the other discrimination statutes.  

The intent was to avoid placing too great a burden on smaller employers, the "mom and pop" businesses out there who employ a huge percentage of workers.  I am sure this employee limitation was intended as early tort reform.  But, it also means some employers can discriminate based on factors most of us would not support. 

If Title VII does not apply, then the "Reconstruction statutes," laws passed during Reconstruction in the 1870’s, might apply.  42 USC Sec. 1981 and 1983 apply regardless of the number of employees. These statutes protect racial and ethnic minorities from discrimination in the formation of contracts. Employment can be a type of contract.  If you have a question, you should discuss your situation with an employment lawyer. 

 Discrimination laws in Texas are enforced by the Texas Workforce Commission, Civil Rights Division and the Equal Employment Opportunity Commission.  But, the CRD is only located in Austin, Texas.  So, by far, most cases are filed with the EEOC.  Both agencies have a work share agreement in which a charge with one will simultaneously be filed with the other agency.  The federal statute is Title VII of the Civil Rights Act of 1964, while the state version is the Texas Commission on Human Rights Act.  The TCHRA generally tracks Title VII. 

Both statutes prohibit discrimination based on sex, race, national origin, and religion.  The Americans with Disabilities Act prohibits discrimination based on disability.  The Age Discrimination in Employment Act prohibits discrimination based on age.  The EEOC investigates alleged violations of the Americans with Disabilities Act and Age Discrimination in Employment Act.  And, of course, the Texas TCHRA also tracks the ADA and the ADEA.

Any charge of discrimination must first be filed with either the EEOC or the TWC, CRD before proceeding to a lawsuit. 

 

 An employer can impose rules requiring that only English be spoken in the work place.  But, an employer can do so only if there is a real, definable business reason for the rule.  Most cases that have allowed such English-only rules were based on safety reasons.  See post.  Of course, no such rule could be imposed if the primary purpose is discrimination.  But, if safety or some other business reason is not involved, it will appear that discrimination is the motivation.  If so, then Title VII of the Civil Rights act of 1964 will apply.