Chapter 6
TITLE VII OF THE CIVIL RIGHTS ACT AND RACE DISCRIMINATION
INTRODUCTION
This chapter introduces the major equal employment opportunity law, Title VII of the Civil Rights Act of
1964, as amended. This chapter includes the basis for protection, the differences between disparate impact
CHAPTER OUTLINE
6-1 TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
A. Coverage of Title VII
i. Title VII prohibits any discrimination in terms or conditions of employment on the
ii. Title VII applies to employers, unions, and employment agencies; state and local
government employers are covered, while the federal government is subject to
separate provisions of Title VII.
1. Title VII covers employers with 15 or more employees. Walters v.
2. In Clackamas Gastroenterology Associates, P.C. v Wells, the court
discussed whether managing directors or physician-shareholders of
3. 1995 legislation extended coverage of Title VII to employees of Congress
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B. Administration of Title VII
i. The Equal Employment Opportunity Commission, a five-member commission
whose members are appointed by the President, administers Title VII.
1. The EEOC responds to complaint or can initiate it’s own investigation.
C. Discrimination Under Title VII
ii. Section 703 of VII makes it unlawful for an employer to “fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against an individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.”
Intentional discrimination is called disparate treatment*.
1. Title VII protects all employees from discrimination, not just minority
*Disparate treatment is when an employee is treated differently from others due to race, color,
religion, gender, or national origin.
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6-2 UNINTENTIONAL DISCRIMINATION: DISPARATE IMPACT
A. Title VII prohibits unintentional discrimination according to the same rules as intentional
discrimination. Unintentional discrimination occurs when a facially neutral policy or
CASE 6.1 GRIGGS V. DUKE POWER CO.
401 U.S. 424 (1971)
Background: Duke Power is an electrical utility company operating a coal plant in North Carolina. The
company instituted policies requiring a high school diploma and passing scores on various aptitude tests in
order to be promoted out of the Labor department into more desirable positions. According to census data, 34
percent of Caucasian males in the area possessed a high school diploma, whereas only 12 percent of African
American males had one. Additionally, aptitude test passing rates were also problematic with 58 percent of
Caucasians passing and only 6 percent of African Americans passing.
Of significant note is that during different phases of implementation of both the high school diploma
requirement and the aptitude test requirement, some Caucasian employees were actually promoted to other
more desirable departments and were able to adequately perform their jobs despite the fact that they lacked
high school diplomas.
Issue: May an employer require that an employee have graduated from high school and or have a passing
score on a generalized intelligence test as a prerequisite to hiring or promotion?
Decision: Maybe. The purpose of Title VII is the “removal of artificial, arbitrary, and unnecessary barriers to
ANSWERS TO CASE QUESTIONS
1. There was not significance, as far as the Court was concerned. It focused on the intent of Title VII and
the effect the current policies had on equal access to hiring and promotion.
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3. The Court pointed to Caucasian workers who did not have high school diplomas and/or had not taken
4. Yes. Professionally designed aptitude tests may be used as long as the employer can show a business
necessity for the test; in other words, that the test measures the ability of the person to perform well in
the job.
5. In the fable of the Fox and the Stork, each invites the other to dinner. However, each having different
abilities, the stork is unable to lap up the milk from the bowl provided by the fox, and the fox is unable
ii. Watson v. Fort Worth Bank & Trust extended the application of the disparate
impact doctrine to subjective job criteria and selection processes, such as
interview rating.
B. Section 703(k) and Disparate Impact Claims
i. Section 703(k), added by the 1991 amendments, requires the plaintiff to
demonstrate that the employer uses a particular employment practice that causes a
1. Even if the employer makes such a showing, if the plaintiff can demonstrate
that an alternative employment practice⎯one without a disparate
impact⎯is available, and the employer refuses to adopt it, the employer is
still in violation of the act.
a. Section 703(k) states that a plaintiff shall demonstrate that each
particular employment practice that is challenged causes a
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ii. The Uniform Guidelines on Employee Selection*
1. The Uniform Guidelines on Employee Selection provide other ways of
showing that requirements are job-related.
*The Uniform Guidelines on Employee Selection Procedures are regulations adopted by the
EEOC and other federal agencies that provide for methods of demonstrating a disparate impact
and for validating employee selection criteria.
iii. Showing a Disparate Impact
1. A disparate impact may be shown by use of the Four-Fifths Rule*,
comparing the selection rates of the various groups subject to the job
*Four-Fifths Rule is a mathematical formula developed by the EEOC to determine disparate
impact of a facially neutral employment practice on selection criteria. The formula is: pass rate
C. Validating Job Requirements
i. Validating a requirement involves showing a strong statistical correlation between
the requirement and successful job performance. There are three ways to measure
the validity of a test.
1. Content validity* (or content-related validity) involves showing that the test
or job requirement actually involves skills that are required to be used on
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3. Criterion-related validity* involves showing that performance on written
*Content validity is a method of demonstrating that an employment selection device reflected
the content of the job for which employees are being selected.
ii. A recent case, Ricci v. DeStefano, presents further consideration for employers
using testing devices. In that case, a candidate for promotion was required to pass an
exam. The results of the testing indicated that the test had a disparate impact on
African American. Therefore the test results were ignored. Those passing the test
cried foul. The Supreme Court agreed. The test was job related, therefore the
employer was not free to ignore the results, even it did so in fear of litigation.
CASE 6.2 EEOC v. DIAL CORP.
469 F.3d 735 (8th Cir. 2006)
Facts: The Equal Employment Opportunity Commission (EEOC) brought this sex discrimination action
against The Dial Corporation, under Title VII of the Civil Rights Act of 1964, on behalf of a number of
women who applied for work but were not hired. The company implemented a strength test to evaluate
potential employees, due to the Sausage plant in Fort Madison, Iowa, having a disproportionate number
Called the Work Tolerance Screen (WTS), it required applicants to carry a 35-pound bar between two
frames, approximately 30 to 60 inches off the floor and to lift and load the bar onto these frames. The
applicants were told to work at their own pace for seven minutes, while an occupational therapist watched
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Decision: No. A company may continue to use a test, even when it results in a disparate impact, if the
6-3 SENIORITY AND TITLE VII
The use of seniority (length of service on the job) for employment decisions is protected under S.
703(h) of Title VII if the seniority system is bona fide and not intentionally used to discriminate
on a prohibited basis.
CASE 6.3 FULLER V. EDWIN B. STIMPSON CO. INC.
—Fed. Appx. —, 2015 WL 294112 (11th Cir. 2015)
Facts: Elzie Fuller, III, an African-American male, appealed the district court’s grant of defendant Edwin B.
Stimpson Company, Inc.’s motion for summary judgment as to Fuller’s claims alleging race discrimination in
violation of Title VII and the Florida Civil Rights Act, arising out of his long-term employment with
Stimpson and his termination in 2009 as part of a reduction in force. On appeal, Fuller argued that: (1) he
established a prima facie case of race discrimination; and (2) the district court abused its discretion by
denying his motion for reconsideration.
Issue: Did the employer have an illegal motive for terminating Fuller’s employment?
Decision: No. The court found that Fuller failed to establish a prima facie case of race discrimination.
ANSWERS TO CASE QUESTIONS
2. Because the court found that the termination decisions that Stimpson Co. modified following a review
of the Workforce Review spreadsheet revealed that, if anything, being African-American was regarded
3. The court found that the termination decisions that Stimpson Co. modified following a review of
4. No. Bearing in mind that Stimpson Co.’s creation of the spreadsheet could not serve as evidence of
5. On appeal, Fuller identified only one employee in his motion for partial summary judgment as a
comparator regarding attendance. In any case, Fuller was either late to work or left early on 57
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i. Subsequent Supreme Court decisions have spelled out the scope of S. 703(h)’s
protection of seniority systems.
1. American Tobacco held that S. 703(h) applies to all seniority
systems⎯those adopted after the passage of Title VII as well as those in
effect prior to the Act.
ii. Section 706(e)(2), inserted by the 1991 amendments in response to the Lorance v.
AT&T Technologies, Inc. decision, states the time limit to challenge an allegedly
discriminatory seniority system: a claim may be filed when the system is adopted,
when the plaintiff becomes subject to the system, or when the application of the
system injures the plaintiff.
6-4 MIXED-MOTIVE CASES UNDER TITLE VII
A. In Price Waterhouse v. Hopkins, the Supreme Court held that if the employer can show a
non-discriminative motive for it’s action, it can escape liability.
i. Section 703(m) of Title VII, inserted by the 1991 amendments, overruled the case
on the mixed motive issue.
1. Section 703(m) states that “an unlawful employment practice is established
when the complaining party demonstrates that race, color, religion, sex, or
national origin was a motivating factor for any employment practice, even
6-5 RETALIATION UNDER TITLE VII
A. Section 704 of Title VII prohibits retaliation against employees who have engaged in a
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protected activity, such as filed a claim under, or taken part in proceedings under Title VII,
or who have opposed any practices made illegal by Title VII. In Robinson v. Shell Oil, the
B. Also, according to decisions rendered in Crawford v. Metropolitan Govt. of Nashville and
Davidson City and Burlington Northern and Santa Fe Railroad Co. v. White, retaliation
includes any action that a reasonable employee might find materially adverse.
THE WORKING LAW
Building Contractor Ignored Complaints of Racial Harassment and Fired Black Employees in Retaliation,
Federal Agency Charges
Skanska USA Building, Inc., a building contractor headquartered in Parsippany, N.J., had to pay $95,000 to
6-6 AFFIRMATIVE ACTION AND REVERSE DISCRIMINATION
A. Giving preference in hiring or promotion to qualified female or minority employees.
CASE 6.4 RICCI V. DESTEFANO
557 U.S. 557 (2009)
Facts: New Haven, Connecticut, used objective examinations to identify those firefighters best qualified for
promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white
candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with
arguments both for and against certifying the test results, the City threw out the results based on the statistical
racial disparity.
Issue: Did the City’s affirmative action of discarding the test results amount to disparate treatment of the
successful white and Hispanic test-takers on the basis of race and in violation of Title VII?
Decision: Yes. The problem for the City, said Justice Kennedy’s majority opinion, was that showing a
a voluntary affirmative action was justified when the employer showed a
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CASE 6.5 UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF NEVADA V. FARMER
113 Nev. 90, 930 P.2d 730 (Nev. Sup. Ct. 1997), cert. denied,
523 U.S. 1004 (March 9, 1988)
Background: The University of Nevada instituted a “minority bonus” policy as part of its affirmative
action program to remedy the racial imbalance in full time faculty positions. Farmer, a Caucasian female,
was a finalist for a position in Sociology, but the department hired an African male. Farmer was hired the
following year, but at a salary less than the African male was hired. Farmer sued the university under both
Title VII and the constitution; she alleged race and sex discrimination in hiring the African male over her,
when she was more qualified.
The trial court held for Farmer and awarded her $40,000 in damages; the university appealed. Farmer
alleged that Title VII prohibits all race-based affirmative action plans. The court of appeals reversed the
trial court decision.
Issue: Is the University’s affirmative action plan legal under both Title VII and the U.S. Constitution?
Decision: The affirmative action program conforms to the Weber factors for legality under Title VII: it
ANSWERS TO CASE QUESTIONS
2. She claimed she should have been hired first, rather than second.
3. The affirmative action program conforms to the Weber factors for legality under Title VII: it
4. As for the constitutional “strict scrutiny” analysis, the program here serves the compelling interest
of fostering a culturally and ethnically diverse faculty, and is narrowly tailored to accelerate racial
and gender diversity.
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iv. In U.S. v. Paradise, the Supreme Court upheld the constitutionality of judicially
imposed affirmative action programs to remedy race discrimination in promotion
decisions by the Alabama State Police.
ANSWERS TO ETHICAL DILEMMA
The student’s response should contain the following elements:
1. Recognition that the imbalance is likely due to past discrimination in hiring and promotion.
6-7 OTHER PROVISIONS OF TITLE VII
A. The 1991 amendments to Title VII added two other provisions to the act.
i. Section 703(n) limits challenges to consent decrees.
ANSWERS TO END OF CHAPTER PROBLEMS
QUESTIONS
1. Under Title VII of the Civil Rights Act employers may not “fail or refuse to hire or to discharge any
2. A Bona Fide Occupational Qualification (BFOQ) is an exception to the civil rights law that allows an
employer to hire employees of a specific gender (sex), religion, or national origin when business
3. Disparate treatment is the intentional discrimination against an individual because of the individual’s
race, color, religion, sex, or national origin. Disparate impact refers to unintentional
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4. Section 703(h) protects seniority systems from challenge under Title VII if the seniority system is
bona fide and is not used intentionally to discriminate. A seniority system is bona fide under Title
5. The Uniform Guidelines on Employee Selection are regulation adopted by the EEOC and other
federal agencies that provide for methods of demonstrating a disparate impact and for validating
CASE PROBLEMS
6. The appeals panel held, “(1) findings of fact underlying District Court’s conclusion that test was
justified by business necessity were not clearly erroneous, and (2) sufficient evidence supported
finding that the test measured minimum qualifications necessary for successful performance as
transit police officer.” SEPTA was successful in making a connection between the test and a
business necessity.
Note: A lengthy dissent observed, “Prior to today’s decision, it was established in this Circuit, as
it remains established in others, that a job requirement that has a disparate impact based upon
7. No. Thompson provided evidence that the foreman’s insults were sufficiently outrageous to support
his claims and that Thompson suffered emotional distress based on the foreman’s treatment of him
8. The court found that Singh was allowed to admit into evidence the racial composition of Bay
Crane’s crane operators because (1) the evidence entailed simple data that did not require expert
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9. The court found that the racial preference of a patient was not a defense to discrimination and that
10. Henderson presented sufficient evidence to raise an issue of pretext, shifting the burden onto Mid-
11. The Court of Appeals held that Johnson requires the comparison to be between the percentage of
African Americans in the police and fire departments with the percentage of African Americans in
12. This case involves claims of both disparate treatment and disparate impact discrimination. The court
found that the plaintiffs’ experts conducted detailed statistical analyses that, along with the other
facts of the case, established a prima facie showing of disparate impact (and disparate treatment).
13. A prima facie case of race discrimination requires several elements to be proven, one of which being
that the employee suffered an adverse employment action. In this case, the court found that
14. As the court stated, “The mere fact that an employer knows an applicant’s race does not support the
assertion that an employer made a hiring decision on the basis of race.” Assuming the interview was
15. The plaintiff is entitled to his day in court. There’s an old Southern saying that, “Even a blind pig
finds a truffle sometimes.” The plaintiff’s case should be viewed by the court on its merits in our
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HYPOTHETICAL SCENARIOS
16. A policy refusing to hire employees who are overqualified for a job is not a violation of Title VII. In
order for it to be a violation of Title VII, it must have a discriminatory impact on a protected class.
17. The new requirements are a violation of Title VII. Pursuant to the decision in Griggs, the company
may not adopt hiring or promotion criteria simply for the purpose of creating a higher quality
18. Yes, Cratchit is protected by the retaliation protections afforded under Title VII. Section 704 of Title
VII prohibits retaliation against employees who have engaged in a protected activity, such as filed a
19. Yes, the call center policy violates Title VII. The EEOC provides the following information related
to discrimination based on an accent. “Because linguistic characteristics are a component of
national origin, employers should carefully scrutinize employment decisions that are based on
accent to ensure that they do not violate Title VII. An employment decision based on foreign
20. HomeCare must show the strength test has content validity (or content-related validity). This is a
showing that the test or job requirement actually involves skills that are required to be used on the