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Title VII prohibits employment discrimination against any individual on the basis of his/her race, color, national origin, religion, or sex. Thus, for example, the statute protects Whites, African-Americans, and Asians from race and color discrimination; men and women from sex discrimination; Iranians, Cubans, and Americans from national origin discrimination; and Christians, Jews, Muslims, and atheists from religious discrimination. The following sections describe some specific kinds of charges that can be raised under the Title VII bases.(13)




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Title VII prohibits both race and color discrimination. Courts, however, do not always distinguish them.(14) Consequently, an investigator generally need not determine whether an adverse action was based on race or on color as long as the charging party alleges one or the other, or both.(15)


Title VII prohibits discrimination based on sex, including both sexual harassment, where the prohibited conduct is sexual in nature,(28) and sex-based harassment that is not of a sexual nature, sometimes called gender-based harassment.


The EPA prohibits compensation discrimination based on sex.(29) It protects both men and women. If a charge alleges compensation discrimination based on sex, the investigator should treat it as alleging a violation under both Title VII and the EPA, subject to statutory requirements such as timeliness. For a more detailed discussion of compensation discrimination covered by the EPA, refer to 29 C.F.R. Part 1620.


In most circumstances, the ADA only prohibits employment discrimination against a "qualified individual with a disability."(33) Unlike Title VII and the ADEA, under which the charging party's status as a member of a protected group is seldom in doubt, coverage is frequently a significant issue in ADA cases. In such cases, it is necessary to determine whether the individual has a disability and is also qualified.


EEOC's coverage in this area is broad. Title VII, the ADEA, and the ADA prohibit discrimination related to job decisions, employment practices, or other terms, conditions, or privileges of employment(46) based on an individual's protected status or, in some circumstances, an individual's relationship to a protected individual.(47) In addition, the EPA prohibits compensation discrimination based on sex.(48)


The ADA prohibits a covered entity from conducting a pre-offer medical examination or making pre-offer inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of a disability.(58) However, a covered entity may make pre-offer inquiries about an individual's ability to perform the essential functions of the position in question. After it has extended a conditional offer, the entity may ask disability-related questions, or require a medical examination as long as it does so of all entering employees in the same job category, regardless of disability. If the questions or examination screens out the individual based on disability, the entity must show that the reason for doing so is job-related and consistent with business necessity. A covered entity is also prohibited from requiring a medical examination or making a disability-related inquiry of an employee, unless the examination or inquiry is shown to be job-related and consistent with business necessity. These prohibitions protect an individual regardless of whether s/he is a qualified individual with a disability.(59)


Although the ADEA generally prohibits involuntary retirement, it specifically permits the compulsory retirement of any employee in a "bona fide executive or a high policymaking position" who has attained the age of 65.(90) The exemption does not apply to federal employees.(91) An employer wishing to invoke the exemption must establish that the following elements are met:


In addition to prohibiting employers from discriminating against their own employees, Title VII, the ADEA, and the ADA prohibit a covered third-party employer from discriminatorily interfering with an individual's employment opportunities with another employer.(127) While the third-party employer might, in some cases, be a joint employer, the principle described here applies even where an employment relationship has never existed between the third-party employer and the individual. This kind of liability is commonly known as "third-party interference." The ADA specifically prohibits interference with rights protected under the statute.(128) While Title VII and the ADEA do not include comparable provisions, they prohibit discrimination against "individuals." Therefore, a charging party need not necessarily be an employee of the employer that is accused of discriminatory interference.(129)


The EPA only protects individuals who are employed by the respondent employer from sex-based compensation discrimination because it only prohibits discrimination against the respondent's own employees.(130)


A federal agency may not be held liable for discriminating against another party's employees under Title VII or the ADEA because those statutes only prohibit federal agencies from discriminating against "employees" and applicants for employment. A federal agency may be held liable for discriminating against another party's employees based on disability, however, because the Rehabilitation Act incorporates section 503 of the ADA, which prohibits interference with any individual's rights under the chapter.(131)


24. If a charging party alleges citizenship discrimination, the investigator should notify him/her of a possible claim under the Immigration Reform and Control Act of 1986. IRCA prohibits employers with four or more employees from discriminating because of citizenship status against citizens and non-citizens authorized to work. 8 U.S.C. 1324b(a)(1)(B). IRCA's nondiscrimination requirements are enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, at the Department of Justice. IRCA also prohibits national origin discrimination by employers with between four and fourteen employees. For detailed information on referral procedures for charges that may be within the jurisdiction of the Office of Special Counsel, see the Memorandum of Understanding Between the Equal Employment Opportunity Commission and the Office of Special Counsel for Immigration (1997) (available at www.eeoc.gov).


The Commission disagrees with the decision in EEOC v. McDonnell Douglas Corp., 191 F.3d 948 (8th Cir. 1999), finding that the ADEA does not prohibit an employer practice that has a disparate impact on employees 55 or older but not on the protected class as a whole. The Commission notes that the Supreme Court's decision in O'Connor recognized that the ADEA prohibits discrimination against one member of the protected group in favor of a younger member of the protected group. Thus, an employer practice violates the ADEA if it discriminates against some members of the protected class even if it does not discriminate against other members. In addition, the Commission disagrees with the Eighth Circuit's statement that if claims are not limited to the entire class, an employer will be forced to achieve parity among the virtually infinite number of age subgroups in its work force. This is not correct because a prima facie case of disparate impact requires a showing that a challenged practice has a significantly disparate impact on an identified group. Bradley v. Pizzaco of Neb., Inc., 939 F.2d 610, 612 (8th Cir. 1991), cert. denied, 502 U.S. 1057 (1992).


32. Courts are divided on whether the disparate impact theory is available after Hazen Paper. Compare Ellis v. United Air Lines, Inc., 73 F.3d 999, 1008 (10th Cir.) (stating that Supreme Court indicated in dicta in Hazen Paper that ADEA only prohibits intentional discrimination), cert. denied, 517 U.S. 1245 (1996), with EEOC v. Local 350, Plumbers & Pipefitters, 998 F.2d 641, 648 n.2 (9th Cir. 1993) (stating that disparate impact claims under ADEA remain cognizable after Hazen Paper). The Commission agrees with courts that have found that Hazen Paper does not affect the availability of the disparate impact theory under the ADEA because Hazen Paper is a disparate treatment case, and the Court specifically declined to address the availability of the disparate impact theory under the ADEA. The Commission has long taken the position that the ADEA prohibits disparate impact discrimination. 29 C.F.R. 1625.7(d). Moreover, the disparate impact theory plays an important role in preventing the use of facially neutral criteria as a basis for unlawful discrimination.


40. Although the applicable anti-retaliation provision under the EPA does not include an "opposition" clause, courts have recognized that the statute prohibits retaliation for opposition to allegedly unlawful practices. E.g., EEOC v. Romeo Community Sch., 976 F.2d 985, 989-990 (6th Cir. 1992). Contra Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993), cert. denied, 511 U.S. 1052 (1994). Investigators in the Second Circuit should consult the legal unit.


50. E.g., Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998); see also Oncale, 523 U.S. at 80-81 (noting that Title VII is not a "general civility code," and only prohibits sexual harassment that is "so objectively offensive as to alter the 'conditions' of the victim's employment").


98. If a charging party alleges national origin discrimination by an employer with fewer than 15 employees, the investigator should notify him/her of a possible claim under the Immigration Reform and Control Act of 1986 (IRCA). IRCA prohibits discrimination on the basis of national origin against U.S. citizens and nationals and non-citizens with work authorization by employers with between four and fourteen employees. 8 U.S.C. 1324b(a)(1). IRCA's nondiscrimination requirements are enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, at the Department of Justice. For detailed information on referral procedures for charges that may be within the jurisdiction of the Office of Special Counsel, see the Memorandum of Understanding Between the Equal Employment Opportunity Commission and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (1997) (available at www.eeoc.gov). 041b061a72


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