Title VII Employment Concerns – College Employees

As a faculty, staff, or administrative employee at a college or university, you may sometimes find yourself in unique workplace situations that non-academic organizations don't have to deal with. Trying to get tenure, working as a research assistant, or simply navigating the bureaucracy of a large university administration tend to be specific to institutions of higher education. Despite these differences, colleges and universities are subject to the same federal employment discrimination laws as any other workplace.

Your university employer must follow Title VII rules, whether you work at a public or private university. Title VII applies to all employers with 15 or more employees, and since even the smallest liberal arts colleges usually have more than 15 people on the payroll, it's a safe assumption that almost every college and university must follow federal laws to prevent discrimination in employment.

As an employee at an educational institution that likely receives federal funding, you are probably subject to Title IX rules, which prohibit sexual harassment and gender-based misconduct at schools, colleges, and universities. Title VII, however, applies to all workplaces, and while the two may overlap, there are key differences. It's important to know what kinds of issues you might encounter concerning Title VII at your place of employment. You should understand what constitutes a Title VII violation, how to exercise your rights under Title VII if you experience workplace discrimination, and what to do if an employee lodges a formal complaint against you.

At Lento Law Firm, we realize how important your position at your university is to you or how hard you may have worked to achieve it. We also know how easily things can go wrong with a single complaint. Reputations can be tarnished and careers lost from a simple misunderstanding. That's why we put together this resource guide on Title VII, so you can realize what might put you in a tricky situation or what to do if you're experiencing discrimination.

Title VII of the Civil Rights Act

Title VII of the Civil Rights Act of 1964 protects workers against discrimination based on race, color, religion, sex, and national origin. It covers terms, conditions, or privileges of employment in areas such as recruiting, hiring, promoting, transferring, training, disciplining, discharging, assigning work, measuring performance, or providing benefits. Title VII protections extend to both employees and job applicants.

Employers in both the public and private sectors with 15 or more employees must adhere to Title VII. The federal government, employment agencies, and labor organizations must also follow Title VII. The law prevents unfair treatment, denying employment, or making employment decisions on the basis of the perceived characteristics that Title VII protects.

The Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission (EEOC) enforces Title VII. If an individual experiences workplace discrimination, they can file a charge with the EEOC. You have 180 days after an act of discrimination takes place to file an EEO complaint. However, if your state or local government has similar disclination bans on the books, the period extends to 300 days.

In addition to Title VII of the Civil Rights Act, the EECO also enforces:

• The Civil Rights Act of 1991
• The Age Discrimination in Employment Act of 1967 (ADEA)
• The Equal Pay Act of 1963 (EPA)
• Title I and Title V of the Americans with Disabilities Act of 1990 (ADA)
• Sections 501 and 505 of the Rehabilitation Act of 1973
• Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)

We'll discuss EEO violations and filing a complaint with the EEOC in more detail in a later section.

EEOC Employment Protections

Title VII and other federal laws prohibit employers from harassing, discriminating against, or wrongfully terminating employees on the basis of the following protected classes:

• Race: According to the EEOC, race discrimination is treating someone (a job applicant or employee) unfavorably because they are of a certain race or because of personal characteristics associated with race, like hair texture, skin color, or certain facial features.
• Color: The EEOC considers treating someone unfavorably because of their skin color or complexion as color discrimination.
• Religion: Religious discrimination is treating a person unfavorably because of their religious beliefs. Title VII only covers people who belong to organized, traditional religions such as Buddhism, Christianity, Hinduism, Islam, and Judaism but also extends to those who have sincerely held religious, ethical, or moral beliefs.
• Sex: Sex discrimination is treating someone unfavorably because of their sex. The EEOC definition of sex discrimination under Title VII also applies to sexual orientation, gender identity, and pregnancy status.
• National origin: The EEOC definition of national origin discrimination is treating people unfavorably because they are from a particular country or part of the world, because of their ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).
• Disability: Disability discrimination happens when an employer who is covered by the Americans with Disabilities Act or Rehabilitation Act treats a qualified individual (either an employee or applicant) unfavorably because they have a disability. This class also covers people with a history of disability or people believed to have a physical or mental impairment that is not transitory.
• Age: Age discrimination is treating someone less favorably because of their age, but it only applies to people over 40. Title VII does not protect workers under 40 from age discrimination, although some states have these laws in place. Note that for age discrimination cases, the minimum number of employees must be 20, not 15.
• Genetic information: Employers may not discriminate against applicants or employees based on their genetic information, which is information about someone's genetic tests, family medical history, or requests for and receipt of genetic services.

Under Title VII, an employer cannot discriminate against an applicant or employee because they are associated with someone who belongs to one of the protected classes above, even if the worker themselves is not a member of the protected class. Title VII also protects against retaliation, which means an employer cannot take adverse employment actions against someone because they decided to file an EEO complaint or raise a concern about discrimination.

What Are Considered Discriminatory Policies Under Title VII?

Employment policies may be discriminatory based on disparate treatment or disparate impact. They can also take the form of mixed-motive discrimination, retaliation, or creation of a hostile work environment.

• Disparate treatment: Disparate treatment is when an employer intentionally discriminates with a decision. An example would be preventing women from holding positions as crossing guards with the school district, as this would likely be considered sex discrimination.
• Disparate impact: Disparate impact is when the result of an employment decision has a disproportionate impact on protected groups. An example might be only accepting applications from members of a private organization that has an all-white membership, as this policy could adversely affect non-white minorities and be considered racial discrimination.
• Mixed motive: Mixed motive discrimination occurs when a protected status plays a motivating factor in an adverse employment decision. To defend this claim, employers must prove that they would have taken the same action even if the protected class hadn't been considered.
• Retaliation: Retaliation is an employer taking adverse action against an employee for filing an EEO complaint or otherwise exercising their rights under Title VII and other federal employment discrimination laws. We'll go into more detail on retaliation in a later section.
• Creation of a hostile work environment: A hostile work environment is one in which unwelcome conduct unreasonably interferes with an employee's work performance or creates an intimidating work environment. The unwelcome conduct does not have to be tied to a job benefit or detriment, either. For Title VII to apply, a victim of a hostile work environment must show that the unwelcome conduct toward them was based on their membership in a protected group, that the harassment was pervasive enough to affect a term or condition of employment, and that the employer knew or should have known and failed to take action.

Employers may defend their decisions from disparate treatment claims on a bona fide occupational qualification (BFOQ) basis. The BFOQ is a characteristic that is required for a particular job that appears to be intentionally discriminatory. If, for example, a producer needs to hire an actor to play the role of Ruth Bader Ginsburg in a film, they can argue that they will only consider white women for the job, even though it seems discriminatory.

To prevent disparate impact, Title VII prohibits job policies that appear neutral but actually have a disproportionate impact on members of a protected group. Employers can defend against claims of disparate impact, however, by arguing that the policy is important for job performance.

Examples of Title VII Violations

Some of the following examples may be considered Title VII violations:

• Sending emails or messages containing racist or sexist jokes to coworkers
• Meeting certain age and appearance requirements as a condition for employment (as was the case with the first EEO complaint filed by a union of female flight attendants in the late 1960s)
• Saying something “inappropriate” during class, which may violate unwritten campus speech codes
• Refusing to allow Muslim faculty members prayer time throughout the day
• Unequal tenure practices for male and female faculty members
• Only considering applicants for a graduate assistant position who come from certain countries
• Firing a faculty member because they reported the university for a Title VII violation
• Insisting all university staff members speak English all the time, even if it's not a requirement for their jobs
• Forcing a faculty member to take a sabbatical or leave because they are pregnant
• Refusing to consider applicants for a faculty position who are not Christian

Keep in mind that Title VII applies to all private and public sector employers of 15 employees or more.

Salary Discrimination

A workplace discrimination issue that has drawn attention for many years at colleges and universities is unequal pay between male and female professors. Several high-profile cases in the last few years prove that discrimination persists:

• Princeton University agreed to nearly $1 million in back pay and another $250,000 for future salary adjustments after a 2012-2014 study revealed 106 female professors had been paid less than their male counterparts.
• Five female professors at Rutgers filed suit against the university in October 2020, claiming unequal pay for female faculty members.
• Northern Michigan University agreed to pay $1.46 million to settle a gender discrimination lawsuit in 2019.

While differences in wages are not always discrimination, it is unfortunately common for women to earn less pay than men in male-dominated fields, such as academia. If you suspect that you are paid a lower salary than a colleague who is as equally qualified as you, it's possible that you might be receiving unequal, discriminatory treatment by your university.

You don't have to be a female professor earning less than a male counterpart, either. The inequitable treatment could be on the basis of another protected class, such as race or national origin. Wage discrimination may also affect professors of color in comparison to their white counterparts or professors who are naturalized or non-US citizens compared to other instructors with US origins.

Wage discrimination at institutions of higher education tends to be a sensitive issue. Employers may have several reasons for designating certain salaries and proving that these decisions are discriminatory isn't always easy. With the help of an experienced Title VII attorney, however, you can navigate the process of filing a complaint or better understand what your options are.

Sexual Harassment

Title VII prohibits workplace discrimination on the basis of sex, which includes both sexual harassment and pregnancy discrimination. At educational institutions, Title IX also covers sexual harassment, so it may be difficult to know which law applies to your situation. If you have experienced discrimination at work or an employee has accused you of sexual harassment, you should consult an attorney with the relevant Title VII and Title IX experience.

Tenure Discrimination

Tenure discrimination is an issue unique to academia, as educational institutions are generally the only employers to offer tenured positions or tenure-track positions. A tenured appointment is highly sought-after by instructors at the university level because it is an indefinite employment contract that may be only be terminated for cause or under extraordinary circumstances. It typically also means that a tenured employee has the right to a hearing before being fired.

Many academic institutions offer tenure-track positions in addition to tenured appointments. Tenure-track positions guarantee a tenure review after seven years, and if the review is passed, the faculty member gets lifetime employment at the college or university. Faculty members who don't get tenure or who don't hold tenure-track positions may work part-time and be paid per course, meaning they don't have access to health insurance or retirement plans.

Tenure and tenure-track positions aren't always awarded equitably, and the American Association of University Professors estimates that more than 60 percent of all instructional staff in American higher education hold non-tenure-track positions. Although tenured positions may be decreasing overall, tenure discrimination is still a major issue for professors. A few high-profile cases illustrate that it's an ongoing problem:

• In 2020, a Muslim assistant professor from Pakistan was denied tenure by Georgetown after working at the department of anthropology for seven years and going through the tenure decision process. Students and other advocates allege that the department perpetuated discriminatory practices in the tenure process.
• In 2019, a California appeals court upheld a verdict that San Francisco State University retaliated against a professor when denying her tenure after she complained about the university's environment for minority women.
• In 2013, a professor at Southern Illinois University (SIU) sued the university for gender discrimination in denying her tenure, but the courts sided with SIU and then dismissed her motion for appeal.

Historically, courts have given colleges and universities a lot of leeway when it comes to tenure decisions. This, unfortunately, leads to discriminatory decisions in granting tenure and makes it difficult for professors to prove there was a Title VII violation. Working with an attorney who's experienced in Title VII and university employment matters makes a difference in these kinds of cases.

Workplace Retaliation

Title VII protects workers against retaliation as well as discrimination. You should be able to oppose discriminatory conditions, terms, or privileges at your place of employment without facing retaliation for having done so. Retaliatory actions may include refusal to hire, demotion, transfer to undesirable job duties, or termination. Title VII covers workers who have:

• Complained internally to the university about discrimination
• Filed a formal EEO complaint
• Participated in the investigation of discrimination

Unlawful retaliation can take many forms. Some examples of what might be considered unlawful retaliation include:

• Complaining to the university HR department about offensive remarks colleagues made due to your race and later being assigned to a less favorable team
• Telling a supervisor that if they don't address the sexual harassment you face at work you will file an EEO complaint and subsequently getting your working hours reduced
• Having your working hours reduced after telling your supervisor you are pregnant, then being terminated after you complained about it
• Taking a sabbatical or leave of absence to care for a new child and having your position held for you while you're gone, but getting a pay decrease and reduced hours after you come back

Employers are not allowed to retaliate when workers exercise their rights under Title VII. Knowing if your employer's actions represent retaliation can be difficult, so it helps to work with legal counsel if you think you might have experienced workplace retaliation.

Wrongful Termination

When you get laid off, you might simply accept your termination without question. But it's possible your firing was illegal, and laws like Title VII are in place to prevent employers from wrongfully terminating employee positions. Although most states allow at-will firing practices—meaning you can be fired at any time—your employer cannot fire you for just any reason. It's illegal to terminate employment based on race, religion, sex, and other protected classes under Title VII.

There are several situations in which employees may be able to sue for wrongful termination, including:

• Breaching an employment contract
• Forcing an employee out of a position
• Violating existing employment law
• Retaliation for whistleblowing
• Title VII and EEO ViolationsIgnoring protected leave under the Family and Medical Leave Act
• Workplace harassment
• Employment discrimination
• Improper accommodations for employees with disabilities

It can be difficult to know if your firing was illegal. If you suspect that it was, you should consult with legal counsel to go over the facts of your firing to determine if your employer wrongfully terminated your position

Title VII and EEO Violations

College and university campuses see their fair share of EEO issues, just like any other workplace. These academic institutions usually employ many people, even if they're small, private colleges. Professors, athletic coaches, graduate students who teach, deans, resident assistants, maintenance and operations workers, recruitment personnel, and administrative employees are all protected by Title VII. Complaints can be filed by any employee, and once an EEO complaint is filed, the college or university has a duty to investigate.

The EEOC receives nearly 90,000 complaints each year, and some end up becoming expensive, drawn-out lawsuits. If you have a supervisory role at your college or university, it's possible one of your employees could bring an EEO complaint against you if they feel they've been discriminated against and you did not react promptly and appropriately. You may also receive an EEO complaint when acting as a temporary supervisor, such as if you serve as an interim department chair.

What to Do If an EEO Complaint Is Filed Against You

When you learn that someone has filed an EEO complaint against you for violating Title VII, it can feel scary. The first thing you should do is learn as much about the complaint as possible. Know what to expect next in the process and consider who was involved in the alleged violation and when it happened. Title VII violations have a 180-day statute of limitations in most cases.

The next step to take is to gather your own information about the complaint. Look for a record of the alleged unlawful conduct and check if anyone at the university attempted to resolve the matter. Gathering these documents helps you determine what kind of assistance you will need to deal with the EEO complaint against you.

When you respond to a complaint, try to be as thorough as possible. Give as much information as you have access to and back up the decision you made with documents such as attendance records, sales reports, or emails. Also, remember to share important contextual details with the EEOC, as it's not familiar with your college, department, or team.

Throughout the process, keep the information confidential, especially if the person who filed the complaint is still actively employed by the university. Be proactive and provide a clear, factual account of what happened, along with extensive documentation. Whatever you do, do not ignore an EEO complaint against you, as it will make things worse for you later on.

Filing an EEO Complaint for a Title VII Violation

To violate Title VII and cause an employee to file an EEO complaint, an employer must adversely affect some term, condition, or privilege of employment. Outside of harassment cases, the employer usually must take some job action regarding one of the following:

• Job posting or advertising
• Job testing
• Interviewing and hiring
• Training and development
• Wages and benefits
• Promotions and demotions
• Layoffs and furloughs
• Job termination, discharge, and firing

When an employee files an EEO complaint for a Title VII violation, they are seeking make-whole remedies or relief. The goal of Title VII and its enforcement is to put the affected employee as close as possible to a position as if the discrimination had not occurred. Remedies may come from the EEOC or through private enforcement through court action and can include:

• Job hiring or reinstatement
• Job restoration or promotion
• Lost wages and benefits
• Injunctions against further unlawful employer actions
• Orders for training
• Attorney's fees, expert witness fees, and court costs
• Costs for job search and training
• Compensation for mental and emotional distress
• Punitive damages to deter the employer

Should You File an EEO Complaint?

Filing an EEO complaint is a big step, and you may wonder if it's the right one for your situation. As a college or university employee, you may have several good reasons to file a Title VII complaint. If your employer has refused to stop the unlawfully discriminatory action, even after you've notified them that it's unlawful discrimination, you should strongly consider filing the complaint. College and university employers tend to be sensitive to potential discrimination claims and may rectify the situation right away, avoiding the need to file a formal complaint at all.

The second reason you may want to file an EEO complaint is that you will need to prove you exhausted all EEO administrative remedies before filing a lawsuit. Litigation is costly, and resolving the dispute through the EEOC is more efficient for both parties. If the EEOC has not made a decision on your complaint within 180 days or has not provided the relief you're seeking, then you can start with court litigation.

When and How to File an EEO Complaint

The statute of limitations for filing an EEO complaint is within 180 days of when the discriminatory action occurred. If a state or local law enforces the same prohibition on discrimination, the time to file extends to 300 days. There are various exceptions to the filing limits, so if you are thinking of filing an EEO complaint, it's best to consult with legal counsel as soon as possible.

You submit an EEO complaint to your nearest EEOC field office. You can either go to the office in person for an intake interview or mail the complaint to the office. You can search for EEOC field offices by zip code on the EEOC website. It's important to include the necessary language in the complaint, so if you can't make it to the office in person to have an agent interview you, you may consider asking experienced legal counsel to assist you with drafting the complaint before mailing it in.

Attorney Joseph Lento Can Assist with Title VII Issues for College Employees

When you're dealing with employment discrimination issues at your college or university, it can feel overwhelming. If you have employees that have filed a complaint against you, it's important to respond appropriately so as not to further escalate the matter. If you are experiencing discrimination and your employer refuses to address it, you have a right to take action. Having the right to file a complaint isn't the same thing as doing it, though. When you have little experience with these issues, you may second-guess yourself and wonder if it's really worth the trouble of calling out your employer.

Dealing with a Title VII discrimination issue is a delicate situation to be in, whether you are a victim of discrimination or the one being accused. Fortunately, you don't have to go through the process alone. You can work with an attorney who's experienced in college and university discrimination matters. With the right legal counsel, you can gain a thorough understanding of Title VII rules and how your actions may have triggered a complaint. Your attorney will also be able to guide you as you respond to the complaint. If you are a victim of discrimination and your employer refuses to act, hiring an attorney shows that you're serious about resolving the matter. You can work with your attorney to draft a complaint if needed, and they'll advise on what steps to take to achieve a favorable outcome for you.

Attorney Joseph D. Lento has helped employees at colleges and universities across the country with matters related to Title VII, Title IX, and workplace discrimination. Attorney Lento and the Lento Law Firm have the experience necessary to help you through your Title VII issue. Contact us by calling 888-535-3686 and speak to an expert team.