Title VII of the Civil Rights Act of 1964 is a foundational anti-discrimination law that covers almost all employers in the United States. For federal contractors, Title VII was often overshadowed by the affirmative action obligations created by Executive Order 11246, and the enforcement of those requirements by the Office of Federal Contract Compliance Programs (OFCCP). With the revocation of EO 11246, federal contractors should refresh themselves on the basics of Title VII. While federal contractors are no longer required to create federal affirmative action plans for minorities and women, Title VII requirements remain and violations of the law continue to make up the majority of the Equal Employment Opportunity Commission’s (EEOC) lawsuits brought against employers.
Title VII applies to private employers, state and local governments, and educational institutions that have 15 or more employees for at least 20 weeks in the current or preceding calendar year. It also covers staffing or employment agencies meeting that employee threshold, as well as labor unions that operate as a hiring hall or have at least 15 members.
Title VII protects all current and former employees of a covered employer. It also protects applicants for employment at covered employers, as well as participants in training or apprenticeship programs.
Title VII prohibits employment discrimination based on race, color, religion, sex or national origin. Title VII does not cover age or disability discrimination, but employment discrimination on those bases are prohibited under the Age Discrimination in Employment Act and the Americans with Disabilities Act, respectively.
Title VII applies to all areas of employment and employment decisions. This includes hiring, firing, and promotions, as well as pay decisions and other conditions of employment. Other conditions of employment covers things like hours, shifts, job assignments, and training.
Title VII also prohibits ‘discrimination for making charges, testifying, assisting, or participating in enforcement proceedings’. More commonly this is referred to as retaliation, and it expands beyond just termination of an employee. Retaliation includes any negative employment action such as demotion, shift reassignment, pay reduction, or a hostile work environment. Importantly, retaliation is only prohibited under Title VII when it is in response to activity by the employee that is covered under Title VII. This covers activities like making a charge of discrimination, participating in a Title VII investigation, or helping someone else make a Title VII complaint.
While not explicitly outlined, sexual harassment is covered in Title VII. This was solidified in 1986, when the Supreme Court unanimously held in its opinion in Meritor Savings Bank v. Vinson that unwanted sexual advances and coercion fall under Title VII’s prohibition of discrimination on the basis of sex. This behavior doesn’t just include actions like firing or demotions but also includes the creation of a hostile work environment through sexual harassment. Title VII also prohibits harassment on the basis of race, color, religion, or national origin.
Title VII also contains a unique provision related to religious discrimination. Title VII requires employers to provide reasonable accommodations for an employee’s sincerely held religious beliefs, practices, or observations, unless doing so would cause undue hardship for the employer. Types of accommodations could include modifying work schedules to allow for religious observances, making exceptions to dress codes to allow religious dress, or providing a private location for religious observances.
While federal contractors were used to the process of random audits carried out by OFCCP to review compliance with EO 11246, the enforcement of Title VII looks very different. Responsibility for enforcing Title VII with private employers lies with the EEOC and is carried out through a few different methods.
First, an individual can file a complaint, or charge of discrimination, with the EEOC. The agency may dismiss the claim if they don’t feel it has merit, or they can move forward with an investigation. After concluding the investigation, the EEOC will determine if there is cause to believe a violation of the law took place. If the EEOC doesn’t find reasonable cause, they will dismiss the charge and close the case. At that point, the employee has 90 days to file a lawsuit on their own. If the EEOC does find reasonable cause, they are required to attempt to resolve the incident through conciliation between the employer and the employee. If the conciliation process is unsuccessful, the employee may file a lawsuit on their own or the EEOC can choose to file one on the employee’s behalf.
While most investigations are initiated by an individual bringing a discrimination claim, EEOC commissioners can also initiate a charge, which is referred to as a Commissioner charge. Commissioner charges can be proposed by someone in an EEOC field office, like a District Director, or can be proposed by a member of the public. Commissioners can also sign a charge on their own.
Commissioner charges that are raised through EEOC field offices are reviewed by commissioners on a rotating basis. Once a commissioner signs off on the charge, no more commissioners review it and it is assigned to the appropriate field office to move forward with an investigation. If a charge goes through each commissioner and none sign off on it, the charge will not be issued and the process ends. When a commissioner initiates a charge on their own, it is reviewed by the Office of Field Programs and then signed off on by the commissioner. At that point, the charge is assigned to a field office for investigation.
Like charges brought by members of the public, the issuance of a commissioner charge doesn’t necessarily mean that the EEOC has determined that there has been a violation of the law. When the charge is sent to a field office, it will follow the same process as a charge brought by a member of the public – the field office will determine if there is reasonable cause to believe discrimination occurred and move forward from there.
The vast majority of EEOC charges are initiated by members of the public. According to EEOC’s website, from 2015 through 2024 commissioner’s charges represented, on average, less than 1% of the charges filed each year.