Title VII, passed in 1964, is arguably the most important legislation protecting the equality of women in the workplace. Title VII, which was originally proposed as an anti-racial discrimination bill, included sex as a protected class largely as an afterthought. The amendment adding the term sex was proposed by a conservative legislator from Virginia, probably as a way of scuttling the whole bill. Despite this, Title VII passed with its protections against sexual discrimination intact.
Title VII prohibits discrimination by employers, employment agencies, and labor organizations with 15 or more full-time employees on the basis of race, color, religion, sex, or national origin. It applies to pre-interview advertising, interviewing, hiring, discharge, compensation, promotion, classification, training, apprenticeships, referrals for employment, union membership, terms, working conditions, working atmosphere, seniority, reassignment, and all other “privileges of employment.”
The operative question in a Title VII sex discrimination case is whether the litigant has suffered unequal treatment because of his or her sex. Courts look at whether the disparate treatment of the employee was sex-related. If it was, it is actionable under Title VII unless the employer uses an affirmative defense; if not, it is not actionable.
Affirmative defenses under Title VII include all of the affirmative defenses under the Equal Pay Act. In addition, defenses include situations in which sex is a bona fide occupational requirement (BFOQ) for the job; when sex discrimination occurs as a result of adhering to a bona fide seniority system (unless the system perpetuates past effects of sex discrimination); or when sex discrimination is justified by “business necessity.”
When employers assert a mixed motive under Title VII, that is, the action taken against the employee has both an discriminatory and nondiscriminatory reason, the employer must prove by a preponderance of the evidence the employment decision would have been made absent the discriminatory factors.
Plaintiffs can also sue under Title VII using a theory of “disparate impact” that is, showing that while an employment decision or policy is not discriminatory on its face, it has resulted in discrimination on the basis of sex. The intent of discrimination can be inferred by the impact of the policy.
Affirmative action for women is allowed under Title VII. In the decision of Johnson v. Transportation Agency, Santa Clara County, the Supreme Court determined an affirmative action program that promoted a woman over a more qualified man was legal under Title VII as long as her sex was just one factor in the decision, and the affirmative action plan was carefully drafted to remedy the effects of past discrimination.