Title VII’s Prohibitions
Title VII prohibits a covered employer from discriminating against an employee on the basis of race, color, religion, sex, or national origin. This prohibition includes discrimination on the basis of the employee’s friendship with and/or advocacy on behalf of a member of a protected class.
a. Disparate treatment and/or disparate or adverse impact
A plaintiff of an employment discrimination case may use the theories of disparate treatment and/or disparate or adverse impact in order to prove a claim of unlawful Title VII discrimination. Disparate treatment (including mixed motive) means different treatment and focuses on the employer’s discriminatory intent. Disparate or adverse impact, on the other hand, focuses on discriminatory results that come out of seemingly neutral and non-discriminatory employment or practices.
Title VII prohibits covered employers from retaliating against an employee or applicant who: (1) opposes any practice that Title VII has made unlawful; or (2) makes a charge, testifies, assists, or participates in any manner in an investigation, proceeding, or hearing under Title VII. Courts have interpreted this prohibition against retaliation very broadly.
Encompassed within Title VII’s prohibition of discrimination is a ban on harassment because of an employee’s protected classification. Notably, Title VII imposes liability against covered employers not only for harassment perpetrated by their own employees, but also for third party harassment where the employer is aware of or ratifies (that is, approves of) such harassment. This includes a failure of the employer to investigate and remedy the third-party harassment after learning about it. Of course, although harassment is a form of discrimination, you do not need to prove discrimination in order to prove harassment.
d. Failure to accommodate for religion
In addition, Title VII requires covered employers to make reasonable accommodations (unless it would create an undue hardship) for one of the protected classifications: religion.
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