Laws Enforced By The Employment Litigation Section

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 (Title VII) makes it unlawful to discriminate against someone on the basis of race, color, national origin, sex (including pregnancy) or religion. The Act also makes it unlawful to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.

Under Title VII, it is unlawful to discriminate in any aspect of employment, including:

  • Hiring and firing;
  • Compensation, assignment, or classification of employees;
  • Transfer, promotion, layoff, or recall;
  • Job advertisements and recruitment;
  • Testing;
  • Use of company facilities;
  • Training and apprenticeship programs;
  • Retirement plans, leave and benefits; or
  • Other terms and conditions of employment.

Discriminatory practices under Title VII also include:

  • Employment decisions and harassment on the basis of race, color, national origin, sex (including pregnancy) or religion;
  • Refusal or failure to reasonably accommodate an individual's sincerely held religious observances or practices, unless doing so would impose an undue hardship on the operation of the employer's business;
  • Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain race, color, national origin, sex, or religion; and
  • Denial of employment opportunities to an individual because of marriage to, or association with, an individual of a particular race, color, national origin, sex or religion.

Complaints under Title VII are filed with the Equal Employment Opportunity Commission (EEOC). Under Title VII, the Department of Justice has authority to prosecute enforcement actions against state and local government employers upon referral by the EEOC of complaints arising under the Act. The Department of Justice also has authority to initiate investigations and prosecute enforcement actions against state and local government employers where it has reason to believe that a "pattern or practice" of employment discrimination exists.

Uniformed Services Employment and Reemployment Rights Act of 1994

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) seeks to ensure that servicemembers are entitled to return to their civilian employment upon completion of their military service. Servicemembers should be reinstated with the seniority, status, and rate of pay that they would have obtained had they remained continuously employed by their civilian employer. To qualify for USERRA's reemployment rights, a servicemember must meet the following eligibility criteria:

  • The servicemember must have left a civilian job;
  • The servicemember must have given notice to the employer that he/she was leaving to perform military service;
  • The military service must not exceed five years (although there are a few exceptions);
  • The servicemember must have had an honorable discharge; and
  • The servicemember must have reported back to work within the appropriate time constraints.

Reasonable efforts must be made to enable returning employees to refresh or upgrade their skills to enable them to qualify for reemployment. Additionally, servicemembers are entitled to immediate reinstatement of health insurance for the member and previously covered dependents with no waiting period and no exclusion of preexisting conditions other than those that are military service-related. Employers must reemploy servicemembers who are disabled because of their military service in a position most nearly approximating their former position if they can no longer perform that job.

USERRA also protects servicemembers from discrimination in hiring, promotion, and retention on the basis of past, present and future membership in the armed services, or military obligations.

USERRA applies to voluntary as well as involuntary military service, in peacetime as well as wartime, and the law applies to virtually all civilian employers, including the federal government, state and local governments, and private employers, regardless of size. Complaints under USERRA are filed with the Veterans' Employment and Training Service of the Department of Labor. Under USERRA, the Department of Justice may appear on behalf of a servicemember if the Department of Justice is reasonably satisfied that the servicemember is entitled to the rights or benefits being sought.

Executive Order 11246

Executive Order 11246, signed by President Lyndon B. Johnson in 1965, prohibits federal government contractors and federal government-assisted construction contractors and subcontractors, who do over $10,000 in federal government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin.

The Executive Order also requires federal government contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. Affirmative action, or positive measures, must be taken by covered employers to recruit and advance qualified minorities and women for jobs in which they are underutilized relative to their availability. Affirmative actions include training programs, outreach efforts, and other positive steps. These procedures should be incorporated into the federal government contractor's written personnel policies. Federal government contractors with written affirmative action programs must implement them, keep them on file, and update them annually.

Federal government contractors also are required to take all necessary actions to ensure that no one attempts to intimidate or discriminate against an individual for filing a complaint or participating in a proceeding under the Executive Order. Executive Order 11246 is administered by the Office of Federal Contract Compliance Programs at the Department of Labor. The Department of Justice has authority to prosecute enforcement actions in federal court upon referral by the Department of Labor of complaints arising under the Executive Order.

Updated October 25, 2018

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