EMPLOYMENT DISCRIMINATION
BASED ON RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN
Summary
Section 201 of the Congressional Accountability
Act (CAA) applies certain rights and protections of title VII of
the Civil Rights Act of 1964 (Title VII) to covered employees. Under
this section, all personnel actions -- e.g., hiring, discharge,
promotion, pay, benefits -- must be free from discrimination based
on race, color, religion, sex, or national origin.
Title VII establishes the basic terms of what
is prohibited discrimination, and court decisions have more fully
and specifically defined the rights and protections under Title
VII. The Board has not adopted regulations on Title VII rights and
protections. However, employing offices and covered employees may
find it helpful to refer to court decisions interpreting Title VII,
as well as the interpretations, opinions, and other materials issued
by the Equal Employment Opportunity Commission (EEOC), which is
responsible for implementing Title VII.
This summary describes the Title VII rights
and protections applied by the CAA, followed by "questions and answers."
1.
Coverage
The CAA provides that all personnel actions
affecting covered employees shall be free from discrimination based
on race, color, religion, sex, or national origin. This includes
all hiring, discharge, promotion, pay, benefits, reassignment, and
other personnel actions affecting the terms, conditions, and privileges
of employment.
The covered employees and employing offices
subject generally to the CAA are described in the Introductory section.
2.
Discrimination Based on Race, Color, Religion, Sex, or National
Origin Prohibited
The law forbids any use of race, color,
religion, sex, or national origin as a motivating factor in a personnel
action, even if other factors also motivate the action. Proving
motivation depends on the facts of a particular case. For example,
a covered employee may seek to prove that he or she was treated
differently from others in similar circumstances, and to prove that
race, color, religion, sex, or national origin was a motivating
factor ("disparate treatment"). Under certain circumstances, an
employing office may need to prove that it took adverse personnel
action against a covered employee for non-discriminatory reasons,
and accurate records of employees' job performance may be critical
in such a case.
In addition,
the law forbids certain employment practices that, while facially
neutral, cause a "disparate impact" on the basis of race, color,
religion, sex, or national origin. However, the employment practice
may be lawful in certain circumstances if the employing office can
prove that the practice is job-related for the position in question
and is consistent with business necessity.
3. Sexual Harassment and Other
Harassment
a.
Sexual Harassment
Unlawful sexual harassment occurs
when a supervisor or manager makes unwelcome sexual advances, requests
sexual favors, or engages in other verbal or physical conduct of
a sexual nature, if the implication is that submission to such conduct
is expected as part of the job. It would also be unlawful for a
supervisor or manager to make employment decisions affecting the
individual on the basis of whether the individual submits to or
rejects sexual conduct.
A "hostile work environment" occurs
when unwelcome sexual advances, requests for sexual favors, or other
verbal or physical conduct of a sexual nature has the purpose or
effect of unreasonably interfering with an individual's work performance
or creating an intimidating, hostile, or offensive working environment.
b. Other kinds of harassment
In addition to
the sexual harassment discussed above, harassment on the basis of
race, color, sex, religion, or national origin can constitute unlawful
employment discrimination. Insults, jokes, slurs, or other verbal
or physical conduct or activity relating to race, color, sex, religion,
or national origin are unlawful if they create an intimidating,
hostile, or offensive work environment; or if they unreasonably
interfere with an individual's work performance.
c. Employing office responsibility
Depending on the circumstances, an employing
office may be held responsible for any acts of workplace harassment,
by supervisors, managers, co-workers, or non-employees.
According to the Supreme Court, the existence
of an express written policy prohibiting sexual harassment and an
internal procedure by which an employee can complain when sexual
harassment occurs is relevant to determining employer liability.
See Meritor Savings v. Vinson, 477 U.S. 57 (1986). The policy should
state what conduct is prohibited and provide a procedure by which
an employee may complain when harassment occurs. Such a policy should
seek to prevent sexual harassment insofar as possible, and require
the employing office to promptly investigate and remedy the situation
when harassment is reported.
4. Pregnancy
Discrimination because of pregnancy, childbirth,
or related medical conditions is considered sex discrimination.
A woman may not be fired or be refused a job or a promotion merely
because she is pregnant. Pregnancy, childbirth, and related medical
conditions must be treated the same as other medical conditions
under fringe-benefit plans.
5. Religious
Accommodation
An employing office must reasonably accommodate
a covered employee's or applicant's religious observance or practice,
unless the employing office can demonstrate that such an accommodation
would impose an undue hardship on the conduct of its business.
Employees and prospective employees frequently
request an accommodation because their religious practices conflict
with their work schedules. EEOC guidelines suggest a few of the
means that might reasonably accommodate an employee's religious
practices: Voluntary substitutes and "swaps" of responsibilities,
flexible scheduling, or lateral transfer and change of job assignments.
6. Exceptions
Title VII provides several exceptions,
some of which might be relevant under the CAA. For example, a bona
fide seniority or merit system, may be permissible, if there is
no intent to discriminate on the basis of race, color, religion,
sex, or national origin. In exceptional instances, an employing
office might be able to prove that religion, sex, or national origin
(but not race) is a bona fide occupational qualification reasonably
necessary to the normal operation of the particular office.
Furthermore, it is not unlawful for certain
congressional offices to consider party, place of residence, or
political compatibility in making employment decisions.
7. Intimidation or Reprisal
Intimidation, reprisal, or discrimination against
a covered employee for opposing practices or for initiating or participating
in a proceeding is prohibited, as described in the Introductory
section.
8. Remedies
In case of a violation of the Title VII provisions
of the CAA, several kinds of remedies may be available:
- The remedy may be: enjoining unlawful employment
practices; ordering that such affirmative steps be taken as may
be appropriate, including reinstatement or hiring, with or without
back pay; or any other equitable relief as may be deemed appropriate.
- Compensatory damages may be available for
discrimination involving race, ancestry, and ethnicity.
- Compensatory damages may also be available
for intentional discrimination on a basis other than race, ancestry,
or ethnicity (e.g., sex, religion). In such a case, compensatory
damages for future pecuniary losses, emotional pain and suffering,
and other nonpecuniary losses are capped at no more than $300,000.
A description of the generally applicable remedies
(attorneys fees, interest) and limitations (no civil penalties or
punitive damages) is found in the Introductory section.
DISCRIMINATION
BASED ON RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN (TITLE VII)
Questions and Answers
1. Q. What does Title VII of the Civil Rights
Act, as applied by section 201(a) of the CAA prohibit?
A. The CAA prohibits discrimination in
employment on the basis of race, color, religion, sex, or national
origin within the meaning of Title VII of the Civil Rights Act of
1964, as amended by the Civil Rights Act of 1991. The prohibition
extends to discrimination on the basis of pregnancy, childbirth,
and related medical conditions. This section's prohibition of discrimination
also prohibits sexual harassment, and harassment based on race,
color, religion, or national origin.
2. Q. If an employing
office is paying employees of one race more than employees of another
race, is the employing office violating the CAA?
A.
Yes, if the reason for the differential in pay is race. It is not
prohibited discrimination for an employing office to apply different
standards of compensation, or different terms, conditions, or privileges
of employment pursuant to a bona fide seniority or merit system,
or a system that measures earnings by quantity or quality of production,
or to employees who work in different locations, so long as such
differences are not the result of an intent to discriminate on the
basis of race. The same standard applies to situations involving
employees of different color, religion, sex, and national origin.
3. Q. What do "quid pro quo" and "hostile
work environment" mean in the context of sexual harassment?
A. Two kinds of unlawful sexual harassment
have been recognized: quid pro quo harassment and hostile work environment.
Quid pro quo harassment may exist where an employee is subjected
to unwelcome sexual advances or requests for sexual favors as a
condition for receiving job benefits or as a condition for keeping
the employee's job and benefits.
Sexual harassment may be found to occur if there
is a hostile work environment, even where there is no quid pro quo.
A hostile work environment may exist where an employee is subjected
to unwelcome sexual advances, requests for sexual favors, or other
verbal or physical conduct of a sexual nature has the purpose and
effect of unreasonably interfering with an individual's work performance
or creating an intimidating, hostile, or offensive working environment.
4. Q. May an employing office remove an
employee from a position because of the employee's foreign accent?
A. In general,
the answer is no. An employing office may not take a negative employment
action against an employee because of that individual's accent,
unless the employee's accent is too difficult to understand and
the employee is in a job position which requires that he or she
be clearly understood--for example, in a receptionist position.
5. Q. Must an employing office allow an
employee time-off for the employee's religious observances?
A. An employing
office must allow employees time off for their religious observances
to the extent that such accommodations do not impose an undue hardship
on the employing office.
6. Q. If, for pregnancy related reasons, an
employee is unable to perform the functions of her job, does the
employing office have to provide her an alternative job?
A. An employing office must treat an employee
temporarily unable to perform the functions of her job because of
her pregnancy-related condition in the same manner as it treats
other temporarily disabled employees. For example, if an employing
office accommodates such temporary disabilities by providing alternative
assignments or modifying job requirements, it must do so for pregnancy
related conditions as well. (See Questions and Answers on Family
and Medical Leave.)
7. Q. What procedures may an employing office
use to determine whether to place on leave as unable to work a pregnant
employee who claims that she is able to work, or to deny leave to
a pregnant employee who claims that she is disabled from work?
A. An employing office may not single
out pregnancy-related conditions for special procedures to determine
an employee's ability to work. However, an employing office may
use any procedure used to determine the ability of all employees
to work. For example, if an employing office requires its employees
to submit a doctor's statement concerning their inability to work
before granting leave or paying sick benefits, the employing office
may require employees affected by pregnancy-related conditions to
submit such a statement. (See Questions and Answers on Family and
Medical Leave.)
8. Q. May an employing
office have a rule that prohibits an employee from returning to
work for a predetermined length of time after childbirth?
A.
No.
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