Fifty Years after the Civil Rights Act; What’s New with Title VII

By Cherie Blackburn

 

This summer marked the 50^th anniversary of the Civil Rights Act of 1964, legislation first introduced by President John F. Kennedy in response to the growing civil rights movement. For employers, the most important component of the Act is Title VII, which prohibits employment discrimination on the basis of race, color, sex, national origin, and religion. Over the past fifty years, a number of landmark decisions, legislation, and executive orders have broadened the scope of Title VII and resulted in greater protection for women and minorities in the workplace. As we recognize the effect Title VII has had on the workplace, it is an opportune time to look at decisions and trends which will shape the future of Title VII. In this article, we address two of these: the recent EEOC Guidance on pregnancy discrimination and a recent amendment to an Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity.

 

Pregnancy Discrimination 

In July, for the first time in over 30 years, the Equal Employment Opportunity Commission (EEOC) issued enforcement Guidance on pregnancy discrimination.[1] The EEOC guidance addresses the Pregnancy Discrimination Act (PDA), which Congress enacted in 1978 in order to make clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of “sex” discrimination prohibited by Title VII. The PDA contains two fundamental requirements: “(1) an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and (2) women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not affected but similar in their ability or inability to work.”[2]

Describing this second requirement, the EEOC Guidance states that a pregnant worker may “establish a violation of the PDA by showing that she was denied light duty or other accommodations that were granted to other employees who are similar in their ability or inability to work.” The guidance provides the following example:

An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA. The employer has violated the PDA because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability to work.

This example is particularly interesting in light of a factually similar case currently pending before the United States Supreme Court. In Young v. UPS,[3] Young, a part-time delivery driver for UPS, became pregnant after working for the company for several years. She provided her supervisor a note from her doctor stating that she should not lift more than twenty pounds during the first half of her pregnancy and not more than ten pounds thereafter. The company’s occupational health manager informed Young that she could not continue working as long as she had the twenty pound restriction. According to the company’s policy, light duty work was available only for those with on-the-job injuries, those accommodated under the ADA, or those who had lost DOT certification – but not if the need was based on pregnancy.

Young sued UPS alleging discrimination based on race, sex, and pregnancy. She claimed that the UPS policy limiting light duty work to some employees but not to pregnant workers violates the PDA’s requirement to treat pregnant employees the same “as other persons not so affected but similar in their ability or inability to work.”[4] The Fourth Circuit Court of Appeals ruled in favor of UPS, noting that under Young’s interpretation of the PDA, a pregnant woman would be entitled to a light duty assignment while an employee injured off-the-job would not be, giving the pregnant woman preferential treatment over a similarly situated employee who is not pregnant. The Fourth Circuit stated that such interpretation would “imbue the PDA with a preferential treatment mandate that Congress neither intended nor enacted” and held that “where a policy treats pregnant workers and non-pregnant workers alike, the employer has complied with the PDA.”[5]

Young appealed to the United States Supreme Court, and the Court granted Young’s petition for review to address whether the PDA requires an employer that provides work accommodations to non-pregnant employees with work limitations must provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” It is clear from the EEOC’s Guidance that the EEOC would answer this question in favor of Young. The Supreme Court’s decision in this case, which will be heard in the upcoming term of court, could have a substantial impact on an employer’s obligations with regard to its pregnant employees.

 

Sexual Orientation and Gender Identity as Protected Categories

Title VII protections do not currently extend to prohibiting sexual orientation or gender identity discrimination. [6] Similarly, the scope of Executive order 11246, which prohibits discrimination by federal contractors, did not provide such protection until this past July when President Obama signed into law an amendment to the Order.

Prior to the amendment, Executive Order 11246, issued by President Lyndon B. Johnson in 1965, prohibits government contractors from discriminating against an employee or applicant for employment because of race, color, religion, sex or national origin. President Obama’s amendment to Executive Order 11246 adds sexual orientation and gender identity as protected categories under this anti-discrimination provision for government contractors. This provision now provides that during the performance of a Government contract, the contractor agrees not to “discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.”[7] It also requires that the contractor take affirmative action to ensure that “employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.”[8]

President Obama’s Executive Order also amended Executive Order 11478, which provides for equal employment opportunity in the Federal Government. President Clinton had previously amended this provision to include sexual orientation as a protected category. President Obama went a step further, amending the provision to add gender identity as well. The provision now provides that “it is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, age, sexual orientation, gender identity or status as a parent and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency.”[9]

President Obama declined to extend an existing exemption for religiously-affiliated employers. Currently, religiously-affiliated federal contractors are allowed to consider an employee’s, or prospective employee’s, religion when making employment decisions without running afoul of the anti-discrimination provisions. President Obama did not provide a similar exemption for religious employers when it comes to considering an employee’s sexual orientation or gender identity, specifying that, notwithstanding the religion exception, “contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”[10]

Lawsuits claiming discrimination based on sexual orientation have historically been dismissed on the grounds that sexual orientation is not protected under Title VII. However, courts have increasingly allowed some cases to proceed when they involve allegations of “gender stereotyping” because of Title VII’s prohibition against gender discrimination. See, e.g., Brian Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009).

In March, a federal judge in Washington D.C. ruled that Peter TerVeer’s case against the Library of Congress can move forward. TerVeer sued the Library of Congress under Title VII, claiming he was discriminated against based on his sex after his boss found out that he was gay. He alleged that his boss created “a hostile environment in which he imposed his religion and sexual stereotypes” on TerVeer. The government moved to dismiss TerVeer’s lawsuit, asserting that Title VII does not explicitly protect against sexual orientation discrimination. The court, however, held that an individual can bring a claim under Title VII’s prohibition against sex discrimination. The ruling means that, if the facts support his claims, TerVeer could succeed on his Title VII claim.

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Employers should continue to watch these issues closely. The EEOC has provided helpful guidance for how employers should treat pregnant employees to remain in compliance with the PDA and Title VII. The Supreme Court could answer some lingering questions about the PDA and an employer’s obligation to provide reasonable accommodations to pregnant employees when it hears the Young case later this year. Additionally, employers should be aware that many courts are increasingly treating gender identity and sexual orientation as protected under Title VII, even though this category is not specifically identified as a protected class in the statute.

 

 

Cherie Blackburn has been representing clients in state and federal court for more than 20 years. As an employment attorney, she advises clients on proactive measures focused on avoiding issues that could lead to litigation. That includes drafting handbooks, presenting harassment and discrimination training, addressing wage and hour issues, and drafting employment agreements and restrictive covenants.
[1] EEOC, Enforcement Guidance: Pregnancy Discrimination and Related Issues (July 14, 2014), available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.

[2] 42 U.S.C. § 2000e(k).

[3] 707 F.3d 437 (4th Cir. 2013).

[4] Id. at 445 (citing 42 U.S.C. § 2000e(k)).

[5] Id. at 448 – 449.

[6] Legislation that would amend Title VII to expressly include sexual orientation and gender identity as protected classes recently failed, as a bill passed in the Senate that would prohibit LGBT discrimination in the workplace was defeated in the House, not even making it to the House floor for a vote. Jeremy Diamond, Obama bars federal contractors from LGBT discrimination, CNN (July 21, 2014), http://www.cnn.com/2014/07/21/politics/obama-lgbt-discrimination-executive-order/.

[7] Executive Order 11246

[8] Id.

[9] Executive Order 11478

[10] Id.