Most employers support the idea of anti-discrimination laws and have every intention of following them. Unfortunately, there is a lot of misinformation around. Many small business owners find it hard to tell if their employee policies comply with federal and state anti-discrimination laws. Let’s take a look at compliance with Title VII of the Civil Rights Act of 1964.
Title VII is the main federal anti-discrimination statute, although there are other federal and state anti-discrimination laws. It applies to both public and private employers with at least 15 employees and prohibits both intentional and unintentional discrimination based on membership in certain protected classes, such as:
- Color (e.g., lightness or darkness of complexion)
- National origin
- Religion (or atheism)
What is it illegal to do?
It is illegal to discriminate based on these factors during recruitment or hiring, setting wages and benefits, making work assignments, and during training, transfers, promotions, layoffs, leaves and termination — or in granting or denying any other term, condition or privilege of employment.
Harassment based on membership in a protected group is also illegal. The most common examples are racial and sexual harassment, but harassment is prohibited based on any of the Title VII categories or other categories protected by separate federal or state laws.
It is also illegal to retaliate against someone who makes a good-faith complaint of discrimination, participates in such a complaint on someone else’s behalf, or blows the whistle on discriminatory practices.
What are some examples of intentional and unintentional discrimination?
Intentional discrimination certainly includes making a conscious decision to hamper employment opportunities for a protected class member. Such a decision could be based on conscious animosity or on unconscious stereotypes about individuals in the protected class.
Another example of intentional discrimination is basing an employment decision on the discriminatory preferences of a client, customer or coworker.
Seemingly neutral policies can also be discriminatory in some instances. For example, a, employer might have a height requirement that has the effect of keeping most women from working there. Unless that requirement is a business necessity and there is no workable, less-restrictive alternative, the policy would be unlawful. Such an unintentional discriminatory effect is called a “disparate impact.”
Many policies can create a disparate impact if the employer cannot show a business necessity for them and demonstrate that the meet that business necessity in a way that no less-restrictive policy would. To avoid creating an unlawful disparate impact, tailor your personnel policies closely to what is actually mandatory for successful performance of the job.
An experienced employment law attorney can spot potentially problematic policies and help your company comply with Title VII and other anti-discrimination laws.