Discrimination Under Title VII: Basics | Practical Law

Discrimination Under Title VII: Basics | Practical Law

This Practice Note discusses Title VII of the Civil Rights Act of 1964 (Title VII) and its prohibition against race, color, national origin, religion, and sex discrimination. It addresses individual and employer coverage under Title VII, theories of liability, defenses, and remedies. This Note addresses federal law. For information about employment discrimination under state law, see Anti-Discrimination Laws: State Q&A Tool.

Discrimination Under Title VII: Basics

Practical Law Practice Note 6-518-4067 (Approx. 55 pages)

Discrimination Under Title VII: Basics

by Practical Law Labor & Employment
Maintained • USA (National/Federal)
This Practice Note discusses Title VII of the Civil Rights Act of 1964 (Title VII) and its prohibition against race, color, national origin, religion, and sex discrimination. It addresses individual and employer coverage under Title VII, theories of liability, defenses, and remedies. This Note addresses federal law. For information about employment discrimination under state law, see Anti-Discrimination Laws: State Q&A Tool.
Title VII of the Civil Rights Act of 1964 (Title VII) is one of the principal federal statutes prohibiting employment discrimination. It prohibits discrimination based on:
  • Race.
  • Color.
  • National origin.
  • Religion.
  • Sex (including gender, pregnancy, sexual orientation, and gender identity).
(42 U.S.C. § 2000e-2.)
Title VII also prohibits:
To help employers understand their obligations and potential risks under Title VII, this Note discusses:
  • Which employers are obligated to comply with Title VII and which employees are protected.
  • What conduct is prohibited by Title VII and the theories under which employers are held accountable.
  • Defenses to Title VII discrimination claims.
  • Remedies available to successful plaintiffs asserting discrimination.
  • How Title VII is enforced.
For more information about other forms of discrimination, see Practice Notes:
For more information about discrimination under state law, see Anti-Discrimination Laws: State Q&A Tool.

Covered Employers

Title VII applies to most private employers (see Definition of Employer) that employ at least 15 employees (see Counting Employees Toward the 15-Employee Threshold) (42 U.S.C. § 2000e(b)). The 15-employee requirement is an element of a plaintiff's claim for relief under Title VII, not a jurisdictional requirement (Arbaugh v. Y&H Corp., 546 U.S. 500 (2006)).
Title VII applies to all covered employers located within the US. It also applies to US-controlled companies operating abroad, with certain exceptions (see Overseas and Extraterritorial Coverage).
Title VII also applies to military departments and executive agencies in the federal government, units of the judicial branch and the government of the District of Columbia that have positions in the competitive service, and the following federal organizations:
  • The US Postal Service and Postal Regulatory Commission.
  • Tennessee Valley Authority.
  • The Smithsonian Institution.
  • The Government Publishing Office.
  • The Government Accountability Office.
  • The National Oceanic and Atmospheric Administration Commissioned Corps.
  • The Library of Congress.
(42 U.S.C. § 2000e-16; 29 C.F.R. § 1614.103.)
Private employers that are subject to Title VII also may be subject to an analogous state anti-discrimination law. For more information on state anti-discrimination laws, including which employers are covered, see Anti-Discrimination Laws: State Q&A Tool.

Definition of Employer

Title VII defines a private employer as a person (see Definition of Person) engaged in an industry affecting commerce (see Definition of Industry Affecting Commerce) who has at least 15 employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year (see Counting Employees Toward the 15-Employee Threshold), including any agent of a covered person (42 U.S.C. § 2000e(b)).
The 15-employee threshold and definition of industry affecting commerce do not apply to the federal government as an employer.

Definition of Person

Title VII defines "person" broadly to include:
  • One or more individuals.
  • Governments.
  • Governmental agencies.
  • Political subdivisions.
  • Labor unions.
  • Partnerships.
  • Associations.
  • Corporations.
  • Legal representatives.
  • Mutual companies.
  • Joint-stock companies.
  • Trusts.
  • Unincorporated organizations.
  • Trustees.
  • Trustees in cases under Title 11.
  • Receivers.
(42 U.S.C. § 2000e(a).)

Definition of Industry Affecting Commerce

Under Title VII, "industry affecting commerce" is defined so broadly that it is nearly impossible for an employer to argue exemption from Title VII on this basis alone. Specifically, it means any business, activity, or industry either:
  • In commerce.
  • In which a labor dispute would hinder commerce.
(42 U.S.C. § 2000e(h).)

Entities Excluded from the Definition of Employer Under Title VII

Title VII specifically excludes the following from the definition of employer:
  • The US (although federal employees are protected under a separate provision (42 U.S.C. § 2000e-16)).
  • Corporations wholly owned by the US.
  • Indian tribes.
  • Designated departments and agencies of the District of Columbia (although designated employees of the District of Columbia are protected under a separate provision (42 U.S.C. § 2000e-16)).
  • Bona fide private membership clubs (other than labor organizations) that are tax exempt under Section 501(c) of the Internal Revenue Code, as amended (26 U.S.C. § 501(c)).
(42 U.S.C. § 2000e(b).)
Title VII also exempts certain religious organizations from its prohibition against religious discrimination (42 U.S.C. § 2000e-1(a)). For more information, see Practice Note, Religious Discrimination and Accommodation Under Title VII: Religious Organization Exemption and Religious Educational Institutions Exemption.
For additional information on employer coverage generally, see EEOC: Coverage.

Ministerial Exception

Employers are not liable under Title VII when the ministerial exception applies. This exception is not included in the text of Title VII, and instead is grounded in the Free Exercise and Establishment Clauses of the First Amendment of the US Constitution and has been recognized by the US Supreme Court (see Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012)).
The ministerial exception bars employment discrimination suits against religious employers by applicants and employees who qualify as ministers. Although the Supreme Court declined to define "minister," the Court clarified that the term is not limited to the head of a religious congregation (see Hosanna-Tabor, 565 U.S. at 190-91). Elementary school teachers at religious schools who perform "vital religious duties," including educating and forming students in the school's faith, also qualify as ministers (Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020)).
The ministerial exception is not a jurisdictional bar to a case. Instead, an employer may assert it as an affirmative defense (see Hosanna-Tabor, 565 U.S. at 195 n.4).
For more information, see Practice Note, Religious Discrimination and Accommodation Under Title VII: Ministerial Exception.

Overseas and Extraterritorial Coverage

Title VII applies to US employers and US-controlled companies operating abroad. If a foreign company violates its US citizen employees' rights under Title VII's anti-discrimination provisions, the US parent (or other controlling entity) is deemed to have engaged in the unlawful conduct (42 U.S.C. § 2000e-1(c)). Title VII does not apply to non-US citizens working abroad, even if they work for a US or US-controlled company, or to foreign companies not controlled by a US employer (42 U.S.C. § 2000e-1(a), (c)(2)).
To assess whether a company operating abroad is a US employer, the EEOC generally looks to the place of incorporation (see EEOC: Enforcement Guidance on Application of Title VII and the Americans with Disabilities Act to Conduct Overseas and to Foreign Employers Discriminating in the United States, Section I.B.1). For partnerships or other entities not formed in the US or for companies not incorporated in the US but that have substantial contacts within the US, courts may look at multiple factors, including:
  • The company's principal place of business.
  • The nationality of the company's dominant shareholders or those with voting control.
  • The nationality and location of the company's officers and directors.
Whether a US employer controls a company operating abroad depends on the relationship between the US employer and the foreign company, including:
  • The interrelation of operations.
  • Common management.
  • Centralized control of labor relations.
  • Common ownership or financial control.
(42 U.S.C. § 2000e-1(c)(3).)
The US Court of Appeals for the Second Circuit also considers "the use of common office facilities and equipment" and "family connections between or among the various enterprises" when determining the scope of Title VII's extraterritorial coverage (see United Union of Roofers, Waterproofers, & Allied Workers Local No. 210, AFL–CIO v. A.W. Farrell & Son, Inc., 547 Fed. App'x. 17, 19 (2d Cir. Oct. 15, 2013)).
However, Title VII recognizes an exception if complying with its requirements violates the laws of the foreign jurisdiction (42 U.S.C. § 2000e-1(b)).
For more information, see Practice Note, Extraterritorial Scope of Major US Employment Laws: Extraterritorial Coverage of Title VII and the ADA and Extraterritorial Coverage Under Major US Employment Laws Chart: Overview.

Counting Employees Toward the 15-Employee Threshold

A private employer is covered under Title VII if it has at least 15 employees (see Definition of Employee) for each workday in 20 or more calendar workweeks (which do not need to be consecutive) in either the current or preceding calendar year (42 U.S.C. § 2000e(b)). An individual counts toward the 15-employee threshold if that person has an employment relationship with the employer on that particular workday, regardless of the individual's daily work schedule or the duration of the employee's employment (see Walters v. Metro. Ed. Enters., Inc., 519 U.S. 202, 207 (1997) and EEOC: Compliance Manual Section 2: Threshold Issues: Covered Entities). For example, a part-time employee who works only three days each week counts as an employee for the entire week, if that person has an employment relationship with the employer during the entire week.
There is no requirement that an individual employee work for 20 weeks to be counted or that the employer employ the same 15 employees for 20 weeks. However, an employee who begins or ends employment in the middle of a workweek is not counted towards the threshold for the entire workweek, but is instead only counted for the days on which that person is employed (for more information, see EEOC: Compliance Manual Section 2: Threshold Issues: Covered Entities).
Employees counted toward the threshold include:
  • Full-time employees.
  • Part-time employees.
  • Any employee paid compensation during the week of assessing coverage.
  • Any employee who is suspended.
  • Any employee who is on vacation or leave.
The Second, Fourth, Fifth, Eighth, Tenth, and Eleventh Circuits have held that volunteers are employees under Title VII only if they receive some kind of financial benefit or promise thereof from an employer (see Juino v. Livingston Parish Fire Dist., 717 F.3d 431 (5th Cir. 2013)). Financial benefits might be in the form of a salary or wages, or benefits such as medical insurance, retirement pensions, life or disability insurance, vacation time, sick pay, or a promise of any of the above (see Pietras v. Bd. of Fire Commn'rs of Farmingville Fire Dist., 180 F.3d 468, 471, 473 (2d Cir.1999)).
The Sixth and Ninth Circuits view financial benefits as one factor to assess among all the incidents of the relationship between the worker and the employer (see Bryson v. Middlefield Volunteer Fire Dep't, Inc., 656 F.3d 348, 354-355 (6th Cir. 2011); Fichman v. Media Ctr., 512 F.3d 1157, 1162 (9th Cir. 2008)).

Liability of Parent Corporation for Acts of Subsidiary

A parent corporation can be liable for discriminatory, harassing, or retaliatory actions of its subsidiary if the parent corporation and subsidiary are considered joint employers or a single employer under Title VII (see Joint Employer and Single Employer).

Joint Employer and Single Employer

Under a joint employer theory, an employee that is formally employed by one employer may be deemed to be constructively employed by another employer if that employer exercises sufficient control over that employee's terms and conditions of employment (for more information, see Practice Note, Joint Employment: Overview: Joint Employers Under Title VII). Joint employers generally can be held liable for Title VII violations. However, courts disagree about whether joint employees can be aggregated to determine whether the 15-employee threshold for Title VII coverage is met (see Practice Note, Joint Employment: Overview: Aggregating Joint Employees to Meet Title VII's 15-Employee Threshold).
In contrast, under a single employer theory (sometimes referred to as single integrated employer or integrated employer theory), if two or more entities effectively operate as one employer, they generally are treated as a single employer for both:
  • Coverage. For example, their employees generally can be aggregated to determine if the integrated enterprise meets the 15-employee coverage threshold.
  • Liability.
To determine if two or more entities should be treated as a single employer, most courts consider four factors:
  • How interrelated the entities' operations are.
  • Whether the entities are under common ownership and control.
  • Whether the entities are under common management.
  • Whether labor relations and personnel for both employers are centralized.
(See, for example, Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1069-70 (10th Cir. 1998); see also EEOC: Compliance Manual Section 2: Threshold Issues: Special Issues Regarding Multiple Entities.)
The US Court of Appeals for the Seventh Circuit, however, rejected this four-factor test and instead held that an affiliated entity can be considered a single employer for Title VII coverage and liability when:
  • The affiliate ignores corporate formalities or holds itself out as the individual's employer so that it would be liable in tort or contract.
  • One entity split itself into multiple entities, each with too few employees to meet the 15-employee threshold, specifically to avoid Title VII liability.
  • The parent entity directed the employer to engage in the discriminatory act, practice, or policy at issue.
(Papa v. Katy Indus., Inc., 166 F.3d 937, 940-42 (7th Cir. 1999).)

No Personal Liability for Managers and Supervisors

Although employers are regularly held accountable for the discriminatory, harassing, or retaliatory acts of their employees under Title VII as agents of the employer, courts do not hold supervisors, managers, officers, or non-supervisory employees personally liable under Title VII (see, for example, Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995); Williams v. Banning, 72 F.3d 552, 555 (7th Cir. 1995); Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993)).

Liability for Acts of Third Parties

Employers may be held liable for the harassing conduct of customers and other third parties if the harassment creates a hostile work environment and the employer:
  • Knew or should have known about the harassing conduct.
  • Failed to prevent or correct the hostile work environment.
(29 C.F.R. § 1604.11(e) and see, for example, EEOC v. Costco Wholesale Corp., 903 F.3d 618, 624-27 (7th Cir. 2018); Lockard, 162 F.3d at 1073-75; Pryor v. United Air Lines, Inc., 791 F.3d 488, 498-500 (4th Cir. 2015).)

Covered Individuals

Title VII protects employees (including former employees) and applicants for employment. Covered employees include:
(42 U.S.C. §§ 2000e(f), 2000e-1(c).)
Title VII does not cover:
  • Foreign nationals working abroad for US-controlled companies.
  • US citizens working abroad for non-US-controlled companies.
  • Independent contractors or others with no employment relationship to the employer (see Definition of Employee).
(42 U.S.C. § 2000e-1(a), (c).)

Definition of Employee

Title VII defines employee as "an individual employed by an employer" (42 U.S.C. § 2000e(f)). This definition applies both when determining whether an individual is an employee:
For information about volunteers and Title VII, see Counting Employees Toward the 15-Employee Threshold.

Partners, Shareholders and Directors as Employees

To determine whether a partner, shareholder, or director is "an individual employed by an employer," several courts have adopted the test articulated for the Americans with Disabilities Act (ADA) by the Supreme Court in Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003).
Under this test, courts consider whether:
  • The employer can hire or fire or set the rules of employment for the individual.
  • The employer supervises the individual's work and, if so, to what extent.
  • The individual reports to someone else at the employer.
  • The individual can influence the employer and, if so, to what extent.
  • Any written agreements or contracts show that the parties intended the individual to be an employee.
  • The individual shares in the employer's profits, losses, and liabilities.
(See, for example, Mariotti v. Mariotti Bldg. Prods., Inc., 714 F.3d 761 (3d Cir. 2013); De Jesus v. LTT Card Servs., Inc., 474 F.3d 16, 23 (1st Cir. 2007); see also EEOC: Compliance Manual Section 2: Threshold Issues: Partners, Officers, Members of Boards of Directors, and Major Shareholders.)

Independent Contractors Not Covered

Title VII protects employees and applicants. It does not cover independent contractors.
To determine whether an individual is an independent contractor and outside of Title VII's protection, courts generally apply one of three tests:
For more information on independent contractor status, see:

Prohibited Employer Conduct

Title VII prohibits a broad range of discriminatory employer conduct based on:
  • Race.
  • Color.
  • National origin.
  • Religion.
  • Sex (including gender, pregnancy, sexual orientation, and gender identity).
(42 U.S.C. § 2000e-2(a).)
Courts sometimes wrestle with the overlap between protected classes, such as race and national origin. For example, ethnicity-based discrimination, such as discrimination against an Hispanic employee, may be race discrimination under both Title VII and Section 1981 (see, for example, Village of Freeport v. Barrella, 814 F.3d 594 (2d Cir. 2016)). For more information, see Practice Note, Race, Color and National Origin Discrimination Under Title VII and Section 1981.
Prohibited sex discrimination includes discrimination based on sexual orientation and gender identity (Bostock v. Clayton County, Georgia, 590 U.S. 644 (2020)). For more information, see Practice Note, Sexual Orientation and Gender Identity Discrimination Under Title VII.
At least two courts have held that Title VII, as amended by the Pregnancy Discrimination Act, prohibits discrimination based on breastfeeding or lactation (Hicks v. City of Tuscaloosa, 870 F.3d 1253 (11th Cir. 2017); EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013); see also Practice Note, Pregnancy Discrimination: Pregnancy Discrimination Prohibited by Title VII and the PDA).
Title VII prohibits employers from taking adverse employment actions against employees and applicants based on their membership in a protected class. Employers cannot do any of the following because of an individual's membership in any of the protected classes listed above:
  • Refuse to hire an applicant. However, there is no Title VII claim if an employer's representative makes an unauthorized offer of employment for a position that does not exist (see Wilson v. Cook Cnty., 742 F.3d 775 (7th Cir. 2014)).
  • Terminate an employee, including constructive discharge.
  • Refuse to promote an employee.
  • Demote an employee.
  • Discriminate in an employee's compensation, terms, conditions, or privileges of employment, such as transfer, access to training, or access to equipment.
  • Classify or segregate employees in a way that:
    • deprives the employees of employment opportunities; or
    • adversely affects their status as employees.
  • Refuse or fail to prevent or eliminate harassment (see Harassment) or retaliation (see Retaliation).
The US Supreme Court has held that in some instances, a law firm's decision not to extend an offer of partnership to an associate is covered under Title VII (see Hishon v. King & Spalding, 467 U.S. 69 (1984)).
An employee challenging a discriminatory transfer must show some harm relating to an identifiable term or condition of employment, but need not show that the harm was significant, serious, substantial, or exceeded any other heightened bar (Muldrow v. City of St. Louis, Missouri, (U.S. Apr. 17, 2024)).

Theories of Liability

There are various theories of liability under Title VII. A person claiming discrimination in a charge of discrimination or a lawsuit may claim the employer intentionally discriminated against the person or that the employer's policies or practices are facially neutral but had a discriminatory effect. For more information about charges of discrimination and lawsuits, see Enforcement Actions and Statute of Limitations.
The principal ways employers can be liable under Title VII are:

Disparate Treatment

Disparate treatment is the most blatant and obvious form of discrimination against applicants and employees based on their protected class status. Disparate treatment discrimination occurs when an employer treats one applicant or employee differently than a similarly situated applicant or employee because of that individual's:
  • Race.
  • Color.
  • National origin.
  • Religion.
  • Sex (including gender, pregnancy, sexual orientation, and gender identity).
(42 U.S.C. § 2000e-2(a).)
For example, if a Muslim female and Christian male employee are equally qualified apply for the same promotion and the employer promotes only the Christian male employee because of his religion and sex, that employer has engaged in disparate treatment discrimination based on religion and sex.
A plaintiff alleging disparate treatment discrimination must establish that the employer intended to discriminate. A plaintiff can make this showing by:
The Seventh Circuit has instructed district judges and litigants to avoid characterizing evidence as "direct" or "indirect" and instead focus on whether the evidence permits a reasonable fact-finder to conclude that the discrimination caused the adverse action. Courts should consider evidence as a whole, rather than focusing on whether any particular piece of evidence is "direct" or "indirect." (See Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).)
Some disparate treatment cases involve allegations that the employer had mixed motives for the adverse employment action (see Mixed Motives in Disparate Treatment Cases).

McDonnell Douglas Burden-Shifting Analysis

Direct evidence of discriminatory animus is not common. Plaintiffs alleging discrimination typically offer evidence through the standard of proof (sometimes referred to as the indirect method of proof) set out in McDonnell Douglas Corp. v. Green (411 U.S. 792 (1973)). That traditional burden-shifting standard operates as follows:
  • Plaintiff establishes a prima facie case. For example, a plaintiff claiming discrimination in hiring based on race must show:
    • the plaintiff is a member of a protected class;
    • the plaintiff applied for and was qualified for the job;
    • the plaintiff was not hired for the job, despite being qualified; and
    • the position remained open and the employer continued to seek applicants with the same qualifications as the plaintiff.
  • The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment action.
  • If the employer articulates a legitimate, nondiscriminatory reason, the plaintiff must show the employer's defense is merely a pretext for discrimination.
(McDonnell Douglas, 411 U.S. at 802-05.)
A plaintiff can show the employer's defense is merely pretext for discrimination by pointing to an employer's inconsistent or changing rationale for the employment action (see Dominguez-Cruz v. Suttle Carible, Inc., 202 F.3d 424, 432 (1st Cir. 2000)).
Although McDonnell Douglas involved a claim for failure to hire, a variation of this standard is widely used in cases involving many adverse employment actions (such as termination of employment, demotion, failure to promote, and transfer denial) involving various protected classes (such as sex and national origin). Plaintiffs must show the following elements to establish a prima facie case of discrimination under McDonnell Douglas:
  • Membership in a protected class.
  • Qualification for the job.
  • An adverse employment action.
  • A causal connection between the adverse action and protected class.
(McDonnell Douglas, 411 U.S. at 802-05.)
However, the McDonnell Douglas test does not apply in:

Mixed Motives in Disparate Treatment Cases

A mixed motive case is one in which an employer is alleged to have had both lawful and discriminatory reasons for taking a particular employment action. In a mixed motive case, the plaintiff puts forward evidence that the employer took an adverse action against the plaintiff and the plaintiff's protected characteristic was a motivating factor for the employer's action (Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1239 (11th Cir. 2016); White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008)).
Once a plaintiff establishes that discrimination was a motivating factor in an employment decision, the burden shifts to the employer to prove that it would have made the same decision even without the impermissible factor. In Price Waterhouse v. Hopkins, the Supreme Court recognized mixed motive cases under Title VII (490 U.S. 228 (1989)).
If a mixed motive is shown, the employer cannot avoid liability under Title VII entirely, but it may be able to limit its exposure to damages (42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B); see, for example, Harris v. Shelby Cnty. Bd. of Educ., 99 F.3d 1078 (11th Cir. 1996)).

Reverse Discrimination

Although reverse discrimination cases are less common, Title VII prohibits discrimination against covered individuals based on race, color, national origin, religion, and sex, even if it is discrimination against a traditionally advantaged group, like white men. For example, if the employer implemented an employment-related test, and the test results appear favorable to white men, but unfavorable to other races, the employer generally cannot engage in disparate treatment discrimination against white men by invalidating the test results, unless there is a strong basis in evidence that using the test results will result in an impermissible disparate impact (see Ricci v. DeStefano, 557 U.S. 557 (2009)).
Employers should note, however, that while Ricci may permit employers to discontinue their current practices if they would create disparate impact liability, the Second Circuit has held that Ricci does not permit employers to defeat disparate impact claims by asserting that they would be subject to disparate treatment liability under the practices that led to the disparate impact claim (Briscoe v. City of New Haven, 654 F.3d 200 (2d Cir. 2011)).

Disparate Impact

Disparate impact discrimination is a more subtle form of unlawful conduct that occurs when a seemingly neutral policy or practice unduly disadvantages individuals based on their protected class (42 U.S.C. § 2000e-2(k)). For example, minimum height requirements and physical strength tests are facially neutral, but may have a disparate impact on women.
In disparate impact cases, once a plaintiff demonstrates that a policy or practice has a disproportionately harmful effect on a protected class (usually by statistical comparison, which the defendant employer can challenge), the employer must show both:
  • The policy or practice is "job related for the position in question and consistent with business necessity."
  • No other alternative employment requirement would suffice.
(42 U.S.C. § 2000e-2(k)(1)(A).)
The McDonnell Douglas test is not used to assess claims of disparate impact (see Griggs v. Duke Power Co., 401 U.S. 424 (1971)). Instead, courts analyze the legality of the contested practice, such as a test or policy.
There are circumstances under which plaintiffs argue both disparate impact and disparate treatment theories of discrimination. For example, a plaintiff in a failure to promote race discrimination case may claim that the employer's failure to promote the plaintiff was based on race and is both:
  • A specific act of disparate treatment against the plaintiff based on race.
  • Indicative of a seemingly neutral general practice relating to promotions that disproportionately and negatively affects members of the plaintiff's race.

Pattern or Practice

Section 707 of Title VII allows the Equal Employment Opportunity Commission (EEOC) to sue employers alleged to have engaged in a pattern or practice of discrimination (42 U.S.C. § 2000e-6). Pattern or practice cases may allege either or both disparate treatment or disparate impact, but they always allege widespread violations.
In pattern or practice cases, courts recognize a distinct burden of proof under which the government must show that there is a pattern or practice of discrimination and by a preponderance of the evidence that this pattern or practice is not sporadic but is the employer's standard operating procedure (see Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 (1977); Teamsters Framework).
The same standard has been used in private class action litigation under Section 706 of Title VII (see, for example, Cooper v. Fed. Reserve Bank, 467 U.S. 867 (1984); Davis v. Coca-Cola Bottling Co., 516 F.3d 955 (11th Cir. 2008)). The EEOC also brings classwide cases under Section 706, although it is not required to meet the class action certification standards that private class representatives must (see Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318 (1980)).
This burden of proof makes statistical evidence particularly significant in pattern or practice cases. For more information, see Practice Notes, Employment Discrimination Class Actions and EEOC Systemic Discrimination Litigation.

Teamsters Framework

The framework in pattern or practice cases operates as follows:
  • The plaintiff (the EEOC or the named class representatives) must show by a preponderance of evidence that discrimination was the employer's standard operating procedure rather than an unusual practice (Teamsters, 431 U.S. at 336). If the plaintiff proves that a discriminatory pattern or practice existed, there is a presumption that the employer discriminated (Teamsters, 431 U.S. at 360).
  • An employer can then rebut the inference of discrimination (for example, by demonstrating that the plaintiff's statistical proof is not accurate). If the employer fails to rebut the inference of discrimination, the court can award prospective relief (for example, an injunctive order prohibiting future discrimination) (Teamsters, 431 U.S. at 361).
When the plaintiff seeks individual relief, a court will typically conduct additional proceedings to determine the scope of individual relief (Teamsters, 431 U.S. at 361).

Cat's Paw Liability

Under a cat's paw theory of liability, an employer may be liable for discrimination when a biased supervisor or manager influences an employment decision, even if the biased supervisor or manager did not make the ultimate employment decision. The foundational case on cat's paw liability, Staub v. Proctor Hospital, was decided under the Uniformed Services Employment and Reemployment Rights Act (USERRA) (562 U.S. 411 (2011)). However, the US Supreme Court noted USERRA's similarity to Title VII (Staub, 562 U.S. at 417).
Circuit courts have found that cat's paw liability is applicable to Title VII claims (see Vasquez v. Empress Ambulance Service, Inc., 835 F.3d 267 (2d Cir. 2016)), Chattman v. Toho Tenax Am., Inc., 686 F.3d 339 (6th Cir. 2012)).
A plaintiff may establish cat's paw liability if the plaintiff can show:
  • The supervisor intended to cause an adverse employment action.
  • The supervisor's discriminatory action is a proximate cause of the ultimate employment action.
(Chattman, 686 F.3d at 351.)
Supervisory authority is not necessarily required for cat's paw liability to attach. The US Court of Appeals for the Second Circuit recognizes cat's paw as a basis for viable Title VII retaliation claims if the retaliatory motives of a lower ranking employee were credited and relied on in making an adverse employment decision (Vasquez, 835 F.3d at 275-76).

Failure to Accommodate Religion

Title VII requires employers to reasonably accommodate an applicant's or employee's sincerely held religious belief that conflicts with a job requirement, unless it would cause an undue hardship on the employer's business (42 U.S.C. § 2000e(j)). Unlike other theories of discrimination that require employers to treat applicants and employees equally, regardless of their membership in any protected class, the accommodation obligation requires employers to provide special treatment to protected class members in certain situations.
For example, employers that have a policy generally prohibiting employees from wearing headwear may need to make an exception to permit Muslim employees to wear a hijab or Jewish employees to wear a yarmulke, unless these exceptions impose an undue hardship. For more information, see Practice Note, Religious Discrimination and Accommodation Under Title VII.

Harassment

Harassment is recognized as a form of prohibited discrimination under Title VII (see Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986)). Harassment claims under Title VII are generally divided into two categories:
For more information, see Practice Note, Harassment and Standard Document, Anti-Harassment Policy.

Negligence

An employer may be held liable for negligence under Title VII if an employer fires an employee based on a non-supervisory coworker’s discriminatory actions. Specifically, an employer can be held liable if:
  • An employee's coworker makes statements maligning the employee for discriminatory reasons and with the intent to cause the employee's termination.
  • The coworker's discriminatory acts proximately causes the employee to be terminated.
  • The employer acts negligently by allowing the coworker's acts to achieve their desired effect although the employer knows, or reasonably should know, of the coworker’s discriminatory intent.
(See Velazquez-Perez v. Developers Diversified Realty Corp., 753 F.3d 265, 273-74 (1st Cir. 2014).)

Retaliation

Title VII prohibits retaliation against applicants and employees (42 U.S.C. § 2000e-3). Retaliation is a form of adverse employment action taken against an individual for asserting rights under Title VII (for more information, see Practice Note, Retaliation: Identifying an Adverse Employment Action). An employer cannot discriminate against an applicant or employee because that person:
  • Opposes any practice prohibited by Title VII.
  • Files a charge of discrimination under Title VII.
  • Testifies, assists, or participates in an investigation or proceeding under Title VII.
(42 U.S.C. § 2000e-3.)
In Burlington Northern & Santa Fe Railway Co. v. White, the US Supreme Court clarified that the scope of retaliation protections under Title VII is broader than that of discrimination protections (548 U.S. 53 (2006)). Retaliation is actionable even if it occurs outside the workplace or is not directly related to employment. Retaliation may also include an employer action if it is harmful to the point that it may dissuade a reasonable employee from making or supporting a charge of discrimination (see, for example, Thompson v. N. Am. Stainless, LP., 562 U.S. 170 (2011)).
To prove retaliation under Title VII, the plaintiff must show that retaliation was the "but-for" cause of the employer's adverse action (Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)).
For more information, see Practice Note, Retaliation and Standard Document, Anti-Retaliation Policy.

Defenses and Limits on Liability

In addition to defenses based on jurisdictional and coverage requirements (see Covered Employers and Covered Individuals), Title VII recognizes several defenses to discrimination. The most common include:

Decision Maker in Same Protected Class

Plaintiffs alleging that a member of the plaintiff's protected class discriminated against them because of that shared protected class have a difficult task. There is no presumption as a matter of law that simply being a member of a protected class makes an individual immune from discriminating because of that class. As the Supreme Court noted, "it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group" (Castaneda v. Partida, 430 U.S. 482, 499 (1977)). However, employers can argue that shared protected class status of the decision maker and the plaintiff makes discrimination less likely.

Same Actor Inference

Employers facing discrimination claims in which the same person who hired the plaintiff took an adverse employment action against the plaintiff soon thereafter can bolster their defense with the same actor inference (see, for example, Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1442-43 (11th Cir. 1998)). This defense permits a jury to infer that the adverse decision was not discriminatory. In other words, if a manager hired an employee regardless of the employee's membership in a protected class, the jury can assume that the same manager did not fire that employee because of that same protected class characteristic. A plaintiff can rebut this inference by offering evidence of discrimination.

After-Acquired Evidence of Misconduct

If an employer discovers something about an employee that would have justified termination or other adverse employment action (also known as after-acquired evidence), the employer cannot avoid liability entirely, but may be able to limit exposure to damages. For more information, see Practice Note, Remedies: Back Pay in Employment Discrimination Cases: After-Acquired Evidence of Misconduct and Practice Note, Remedies: Front Pay in Employment Discrimination Cases: After-Acquired Evidence of Misconduct.

Mixed Motive as a Limit on Liability

A mixed motive case is one in which the employer had both lawful and unlawful reasons for making a particular adverse employment action decision (see Mixed Motives in Disparate Treatment Cases). If an employer makes an adverse employment decision in which unlawful discrimination was a motivating factor, although other factors played a part as well, the employer cannot avoid liability entirely.
However, the employer may be able to limit exposure to damages (42 U.S.C. § 2000e-5(g)(2)(B); see also, for example, Harris v. Shelby Cnty. Bd. of Educ., 99 F.3d 1078 (11th Cir. 1996)).

Affirmative Action

Affirmative action plans are required for some federal contractors and may be judicially ordered for others (for more information, see Practice Note, Affirmative Action: Overview). However, for private employers generally, affirmative action plans are not required and are authorized only under limited circumstances.
Title VII does not prohibit all race-conscious voluntary affirmative action plans (United Steelworkers v. Weber, 443 U.S. 193 (1979)). The Weber test is used to determine how voluntary affirmative action plans are evaluated. It requires that:
  • There is a clear imbalance in traditionally segregated job categories (for example, fewer women traditionally work in construction).
  • The plan not unnecessarily harm the interests of individuals outside the protected class. For example, it cannot create an absolute bar to advancement or continued employment.
  • The plan mirror the purposes of Title VII.
  • The plan be temporary (generally, until the imbalance is corrected).
(Weber, 443 U.S. at 208-09.)

Merit, Output, and Ability Exceptions

Employers are authorized under Title VII to apply different compensation or employment terms and conditions because of:
  • A bona fide seniority or merit system.
  • A system measuring earnings by quantity or quality of production.
  • Professionally developed ability tests that are not designed, intended, or used to discriminate.
(42 U.S.C. § 2000e-2(h).)

Bona Fide Occupational Qualification

The BFOQ defense is a narrow defense with limited scope. An employer may use the BFOQ defense to avoid liability by demonstrating that its use of a protected class characteristic (like religion) is reasonably necessary to the normal operation of its business or enterprise (42 U.S.C. § 2000e-2(e)). The BFOQ defense may be used in cases alleging discrimination based on sex, national origin, or religion only.
Courts disfavor the BFOQ defense and consider it valid only under limited circumstances, such as:
Customer, client, or co-worker preference is not a BFOQ (see 29 C.F.R. § 1604.2(a)(1)(iii); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981); Kern v. Dynalectron Corp., 577 F. Supp. 1196, 1201 (N.D. Tex. 1983)).

Good Faith Reliance on EEOC Opinions

Another narrow affirmative defense recognized under Title VII is good faith reliance on EEOC opinions (42 U.S.C. § 2000e-12(b)). There is some debate among federal courts of appeals about whether this serves as a complete defense or simply limits exposure to damages (see, for example, Plott v. Gen. Motors Corp., Packard Elec. Div., 71 F.3d 1190 (6th Cir. 1995); Rosenfeld v. S. Pac. Co., 519 F.2d 527 (9th Cir. 1975)).
An employer (or any interested person) can request a written opinion from the EEOC on Title VII's interpretation, although the EEOC has discretion over whether to issue the opinion (29 C.F.R. § 1601.91). A request for an EEOC opinion letter must:
  • Be in writing and signed by the person making the request.
  • Specifically state that the person requests an "opinion letter."
  • Be addressed to the EEOC Chair at the agency's headquarters in Washington, DC and should also be emailed to a specific email address.
  • Contain:
    • the names and addresses of the person making the request and any other interested persons;
    • a concise statement of the issues on which the person request an opinion;
    • a statement of all known relevant facts and law; and
    • a statement of reasons why the EEOC should issue the formal opinion letter.
(29 C.F.R. § 1601.92; EEOC: Request a Formal Opinion Letter.)

Recordkeeping and Reporting

The EEOC recordkeeping regulations require employers subject to Title VII to preserve all employment and personnel records for a period of one year from the date the record is made or the personnel action is taken, whichever is later. In the case of an involuntary termination, the employer must keep the individual's employment records for a period of one year after the termination date. If an EEOC charge is filed or a civil action is brought by the EEOC or the Attorney General, the employer must preserve all employment records relevant to the EEOC charge or action until its final disposition.
These records may include:
  • Requests for a reasonable accommodation.
  • Application forms submitted by applicants.
  • Hiring, promotion, demotion, transfer, layoff, or termination records.
  • Pay records.
  • Selection records for trainings or apprenticeships.
  • Other personnel or employment records relating to the charging party and all other employees holding similar positions.
(29 C.F.R. § 1602.14.)
All private employers who are subject to Title VII with 100 or more employees and certain federal contractors must file annual Standard Form 100 Reports, commonly called EEO-1 reports, containing information regarding the gender, ethnic, and racial composition of the employer's workforce (29 C.F.R. § 1602.7).
The following employers have separate reporting requirements:
  • State and local governments with 15 or more employees must file a similar report called the EEO-4 report (29 C.F.R. § 1602.30).
  • Labor organizations with 100 or more members that are local, independent, or unaffiliated unions must file a similar report called the EEO-3 report (29 C.F.R. § 1602.22).
  • Primary and secondary school systems (public primary and secondary school districts with 100 or more employees and districts with 15 or more employees from which the EEOC requests a report) must file a similar report called the EEO-5 report (29 C.F.R. § 1602.41).
For more information about EEO reports, see EEOC: EEO Reports/Surveys. For more helpful resources, see Standard Documents, EEOC Record Retention Schedule and Document Retention Policy.

Available Remedies

Courts have substantial discretion in creating remedies under Title VII. Depending on the specific allegations and facts of a case, remedies may include:

Injunctive Relief

If discrimination is found, a court may order injunctive relief. Examples include:
  • Hiring or reinstatement.
  • Affirmative steps to avoid future discrimination.
  • Prohibiting an employer from future acts of discrimination.
  • Requiring employees or managers to undergo equal employment opportunity (EEO) training.

Back Pay

Back pay is compensation the plaintiff would have received if the employer had not discriminated against the plaintiff. Under Title VII, a plaintiff cannot recover back pay damages that accrued more than two years before the plaintiff filed a charge with the EEOC (42 U.S.C. § 2000e-5(g)(1)). A court typically calculates back pay from the date the unlawful discrimination occurred until the date judgment is entered, applying the two-year limitation to the beginning of the back pay accrual period, if necessary. An employer may be able to limit a plaintiff's back pay award if the plaintiff has done any of the following:
  • Become employed in another job.
  • Did not make sufficient efforts to find a new job and failed to mitigate their damages.
  • Unreasonably refused an unconditional offer of reinstatement to the same or substantially equivalent position.
For more information, see Practice Note, Remedies: Back Pay in Employment Discrimination Cases.

Reinstatement or Front Pay

Courts typically prefer to award reinstatement to a successful plaintiff. However, a court may award front pay damages (future income a plaintiff would have earned) if reinstatement is unavailable or inappriopriate (for example, if there is significant animosity between the employer and plaintiff). A court usually calculates front pay from the date judgment is entered for a specific period of time or until the time the plaintiff would retire.
As with back pay, an employer may be able to limit a plaintiff's front pay award if the plaintiff has done any of the following:
  • Become employed in another job.
  • Failed to mitigate damages.
  • Unreasonably refused an unconditional offer of reinstatement to the same or substantially equivalent position.
For more information, see Practice Note, Remedies: Front Pay in Employment Discrimination Cases.

Compensatory and Punitive Damages

Compensatory and punitive damages are available to successful plaintiffs in intentional discrimination cases under Title VII. They are not available in either disparate impact cases or pattern or practice cases under Section 707 of Title VII (42 U.S.C. § 1981a(a)(1)). Punitive damages are also only available in cases where the plaintiff proves intentional discrimination with malice or reckless indifference (42 U.S.C. § 1981a(b)(1)). Punitive damages are not available from government, government agency, or political subdivision employers (42 U.S.C. § 1981a(b)(1)).
Compensatory damages may be available for:
  • Future loss.
  • Emotional distress.
  • Pain and suffering.
  • Inconvenience.
  • Mental anguish.
  • Loss of enjoyment of life.
Compensatory and punitive damages are subject to a statutory cap of:
  • $50,000 for employers with 15 to 100 employees.
  • $100,000 for employers with 101 to 200 employees.
  • $200,000 for employers with 201 to 500 employees.
  • $300,000 for employers with 501 or more employees.
(42 U.S.C. § 1981a.)
For more information, see Practice Notes, Remedies: Compensatory Damages in Employment Discrimination Cases and Remedies: Punitive and Liquidated Damages in Employment Discrimination Cases.

Attorneys' Fees and Costs

Attorneys' fees are available to the prevailing party, including both plaintiffs and defendants, in the court's discretion. Courts ordinarily award attorneys' fees to prevailing plaintiffs unless special circumstances exist (42 U.S.C. § 2000e-5(k); Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975)).
In contrast, courts only grant attorneys' fees to prevailing defendants when the plaintiff's action was:
  • Frivolous.
  • Unreasonable.
  • Groundless.
(42 U.S.C. § 2000e-5(k); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).)
A defendant need not win on the merits of a case to be awarded attorneys' fees. A defendant may be a prevailing party when the plaintiff's Title VII case is disposed of for non-merits-based reasons. (CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419 (2016).) However, CRST did not disturb the Christiansburg standard for awarding defendants attorneys' fees only when the plaintiff's case was frivolous, unreasonable, or groundless.

Enforcement Actions and Statute of Limitations

The EEOC, which was created by Title VII, enforces Title VII. Title VII also creates a private right of action under which individuals may sue. Before filing a lawsuit in court, however, an individual claiming discrimination, harassment, or retaliation under Title VII must first exhaust their administrative remedies by filing a charge of discrimination, harassment, or retaliation. For more information, see Practice Notes, Exhaustion of Administrative Remedies and Statutes of Limitations Under Employment Discrimination Laws and Discrimination in Federal Public Employment: Federal Sector EEO Program.

Filing a Charge of Discrimination

Under Title VII, an individual employed in the private sector or by a state or local government agency must first file a timely charge of discrimination, harassment, or retaliation with the appropriate administrative agency, either:
Filing a charge, though mandatory, is not a jurisdictional requirement to an employment discrimination lawsuit and a plaintiff's failure to file a charge is an affirmative defense that an employer could forfeit if raised too late in the proceeding (Ft. Bend Cnty. v. Davis, 139 S. Ct. 1843 (2019)). For more information, see Practice Note, Exhaustion of Administrative Remedies and Statutes of Limitations Under Employment Discrimination Laws: Failure to Meet Exhaustion Requirement Is Not Jurisdictional Bar.
An employee in most federal government agencies must first contact an EEO counselor at the agency where the employee works or applied for a job (see Practice Note, Discrimination in Federal Public Employment: Federal Sector EEO Program: EEO Counseling).

Timeliness

To be considered timely, an EEOC charge under Title VII must be filed within either:
  • 300 calendar days after the alleged unlawful employment practice occurred, if it occurred in a deferral state, that is, a state with a state or local law similar to Title VII and a state or local FEPA authorized to enforce that law.
  • 180 days after the alleged unlawful practice occurred in all other states.
For a more detailed discussion of time limits for filing EEOC charges, see Practice Note, Exhaustion of Administrative Remedies and Statutes of Limitations Under Employment Discrimination Laws: Time Limits for Filing EEOC Charges.
Federal government employees have a much shorter time limit for initiating an EEO complaint (see Practice Note, Discrimination in Federal Public Employment: Federal Sector EEO Program: Time Limits for Filing EEO Complaints).

The EEOC's Investigation

After receiving a charge of discrimination, harassment, or retaliation, the EEOC typically conducts an investigation of the allegations in the charge, including by:
At the conclusion of its investigation, the EEOC determines whether there is probable cause that the employer violated Title VII. If the EEOC finds that there is no probable cause, it issues a right-to-sue letter to the charging party, who can then file a lawsuit in court (see Filing a Lawsuit).
If the EEOC finds that there is probable cause of a violation, it must conciliate the matter with the employer and the charging party and attempt to resolve and remedy the violation. To satisfy the conciliation requirement, the EEOC must:
  • Outline to the employer the reasonable cause for its belief that Title VII has been violated.
  • Engage the employer in some form of discussion to give the employer an opportunity to remedy the alleged discriminatory practice.
(EEOC v. Mach Min., LLC, 575 U.S. 480, 494 (2015).)
If conciliation fails, the EEOC may:
  • Issue a right-to-sue letter, so the charging party may file a lawsuit.
  • File suit on behalf of the charging party and the charging party may intervene in the EEOC's suit to participate in the litigation.
Individuals also may request a right-to-sue letter before the completion of the EEOC's investigation. The EEOC issues right-to-sue letters to charging parties even when it does not find reasonable cause to believe discrimination occurred.
For more information, see Practice Notes, Conciliation with the EEOC and Exhaustion of Administrative Remedies and Statutes of Limitations Under Employment Discrimination Laws: EEOC Investigations and Right-to-Sue Letters.
For federal government employees, the employing agency is responsible for investigating EEO complaints and the employee can appeal an agency's decision to the EEOC. For more information, see Practice Note, Discrimination in Federal Public Employment: Federal Sector EEO Program.

Filing a Lawsuit

Under Title VII, lawsuits may be filed by:
For more information on single plaintiff employment discrimination cases, see Employment Litigation: Single Plaintiff Employment Discrimination Toolkit.