Title VII prohibits discrimination against mixed races, as well as to the different color of pigmentation of people of the same race. In Europe, white people from southern Europe generally have darker pigmentation than white people from northern Europe. Black, Asian, and Hispanic people have different shades of pigmentation.

 Congress passed this Act in 1866. The Act provided blacks with the right “to make and enforce contracts . . . as enjoyed by white citizens.” The right to make and enforce contracts includes employment contracts. The Civil Rights Act of 1991 has amended and incorporated this Act within it.

In the past, sex was considered a bona fide occupational qualification. Stereotypes ruled. Men were physicians, lawyers, construction workers, and policemen. Women were nurses, flight attendants, secretaries, and teachers. This arrangement had the effect of discriminating against men and women in certain job classifications. The effect on women, particularly with regard to higher-paying positions, was noticeable.

Discrimination may occur against an individual not solely because of his or her gender, but that fact coupled with another may be its cause. Women with small children, women in childbearing years, and women taking care of elderly parents are all examples.

Operates as a defense to a suit for discrimination with regard to religion, national origin, gender, and age. The first three defenses are found in Title VII, while the age BFOQ is found in the Age Discrimination in Employment Act. The courts have narrowly construed this defense, limiting it to job requirements that are essential to the job or are at the core purpose of the business. Mere job relatedness is not sufficient.

The Equal Pay Act of 1963 is an amendment to the Fair Labor Standards Act, which regulates child labor, minimum wage, and overtime pay. The Equal Pay Act prohibits the payment of different wages to men and women who are performing the same job. This Act covers all types of job categories from clerical to executive.

It is an attempt to assign values to male-dominated and female dominated jobs based on worth. Where the values are equated, equal pay would be required.

Length of hair, beards, and mustaches, courts have usually found in favor of the employer. Imagine walking into a bank and seeing a longhaired branch manager who has not shaved or showered, wearing jeans and a wrinkled shirt. This kind of appearance is not allowed because would not be a good business policy. Customers may lose confidence in the bank and move their accounts elsewhere.

 Acceding to customer choices for service exclusively by one gender to the exclusion of the other is contradictory to Title VII’s prohibition against gender discrimination.

Sexual harassment encompasses the request for sexual favors as well as touching, joking, commenting, or distributing material of a sexual nature that an employee has not consented to and finds offensive.

1. The victimizing employee alleging sexual harassment must be a member of a protected class that is a man or a woman.  2. The complaint must be gender related, for example, a female must assert there would have been no harassment if she were not a woman. 3. The employee must not have consented to the sexual advances or participated in the hostile work environment.  4. The harassment must be based on sex.  5. The conduct complained of must have had a deleterious effect on the employee’s job.  6. Respondent superior exists, that is, the harassment must have occurred during the scope of employment, thus making the employer liable for the sexual harassing conduct of its employees. 

There are two distinct situations for which the company may be liable: vicarious liability (formerly quid pro quo) and hostile work environment.

The difference lies in the supervisor’s ability to affect the employee’s job through a tangible employment action.

Employers are vicariously liable for their supervisors’ tangible employment actions undertaken in return for sex with a subordinate or for a subordinate’s refusal to engage in sex. However, in the absence of a tangible employment action, an affirmative defense is available to the employer. An affirmative defense can be raised by an employer where it exercised reasonable care to guard against and properly address sexually harassing behavior by instituting a procedure for filing complaints and where the victimized employee failed to take advantage of it.

Intimidating and offensive conduct perpetrated by a superior or co-worker against an employee. Must be severe and pervasive so as to interfere with the performance of the employee’s work. Touching, joking, commenting and distributing material of a sexual nature all fall within the confines of a hostile work environment. The composition of sexual harassment will vary among different types of employment.

The standard by which sexual harassment will be judged. A reasonable person must believe that the conduct complained of must have substantially interfered with the victim’s ability to work or created an environment that was intimidating and offensive.