Title VII - Law and Higher Education
Congress enacted a series of antidiscrimination statutes in the 1960s and 1970s that were designed to combat widespread discrimination in the workplace. The most comprehensive of these laws, Title VII of the Civil Rights Act of 1964, prohibits discrimination against employees and prospective employees or applicants on the basis of race, color, national origin, religion, and sex. Title VII applies to hiring, discharge, transfer, promotion, demotion, compensation, and “terms, conditions, or privileges of employment,” and also addresses other employment issues, including sexual harassment, maternity and religious leave, and retaliation for filing Title VII complaints. This entry reviews the general framework of Title VII in terms of the burden of proof required, the types of claims allowable, and the mechanisms in place for administrative enforcement and judicial relief. The entry concludes with a discussion of the application of Title VII to such specific discrimination issues as pregnancy, religion, harassment, and retaliation.
Title VII outlaws employment discrimination by both private and, since 1972, public higher educational employers with 15 or more employees. Under Title VII, colleges or universities can lawfully employ individuals on the basis of sex, national origin, or religion if such a characteristic is a bona fide occupational qualification (BFOQ) necessary for the institution’s normal operations. For example, the Seventh Circuit upheld as a valid BFOQ a philosophy department’s resolution that three faculty vacancies be reserved for Jesuits at a Jesuit university (Pime v. Loyola University of Chicago, 1986).
In addition to BFOQs, Title VII recognizes two other major exemptions that are relevant for religiously affiliated colleges and universities that are “in whole or in part, owned, supported, controlled, or managed by a particular religion or . . . religious corporation, association, or society . . .” (42 U.S.C. § 2000e-2(e)(2)(2009)). Under the socalled ministerial exemption, Title VII allows educational institutions to employ individuals of their faiths. For instance, in EEOC v. Catholic University of America (1996), the Federal Circuit court for the District of Columbia refused to overturn the denial of tenure to a nun in the Department of Canon Law in part because her teaching responsibilities clearly fell within this ministerial exemption (Russo, 1997). In other words, because the nun taught canon law, a discipline that went to the heart of governance in Catholic institutions, the court refused to get involved in what it perceived as a doctrinal issue. The second exemption permits colleges and universities to employ individuals of the institutions’ faiths if their curricula are directed toward disseminating their religious beliefs.
Insofar as race is addressed under the types of Title VII claims that may be filed, it is not addressed in a separate category; it is interesting that because complainants can bring race-based Title VII claims, White plaintiffs have challenged the employment actions of historically Black institutions of higher education, claiming that they were discriminated against based on race.
General Framework of Title VII
Burden of Proof
The burden in Title VII cases rests on employees or prospective employees to establish that employers subjected them to unlawful discrimination. In the leading cases of McDonnell Douglas Corp. v. Green (1973) and Texas Department of Community Affairs v. Burdine (1981), the Supreme Court developed a three-step test of shifting burdens and order of proof for Title VII cases.
Under the Supreme Court’s burden-shifting tests, plaintiffs must first establish prima facie cases by demonstrating that they were members of a protected group, applied for jobs for which they were qualified and for which the employer sought applicants, and were rejected. They must also demonstrate that, after the rejections, the employers continued to seek applicants with the plaintiffs’ qualifications. As the burden shifts, the employer may then rebut claims by producing legitimate, nondiscriminatory reasons for rejecting plaintiffs. In the third step, the burden shifts back to plaintiffs, who have opportunities to establish that employers’ proffered reasons were pretexts for actual impermissible discrimination. In Burdine, the Court explained that in the final stage, plaintiffs may either show directly that employers were more likely motivated by discriminatory reasons or indirectly that the employers’ proffered rationales were not credible. The McDonnell Douglas–Burdine test is flexible, affording the judiciary the option of addressing discrimination claims in dismissal, demotion, transfer, and denial of tenure and academic promotion.
Types of Claims
Title VII claims fall into two categories. Disparate impact claims challenge facially neutral employment policies or practices that on the surface appear nondiscriminatory but nonetheless impact more harshly and significantly a protected group. The primary defense available to institutions of higher learning and other employers is that business necessities justify the policies or practices. An example of a higher education disparate impact claim is Scott v. University of Delaware (1978), wherein the federal trial court in Delaware upheld a university policy that required a terminal degree of a PhD or its equivalent for appointment or promotion to most positions as assistant professor or higher. While recognizing that the policy probably impacted African Americans disparately, the court nonetheless found that the terminal degree requirement was justified as a business necessity in light of the university’s interest in hiring and promoting those most likely to be successful in furthering the knowledge in their disciplines (the scholarship function) and effective in teaching graduate students (the teaching function).
More common in the higher education setting are Title VII disparate treatment claims. In these cases, employees or prospective employees allege that officials at colleges and universities treated them less favorably, either individually or as a group, and with unlawful intent because of race, color, national origin, sex, or religion. Title VII higher education claims frequently challenge negative institutional decisions, based on a faculty committee’s or administrative recommendation, concerning hiring, academic promotion, tenure, and reemployment, which the plaintiffs charge were unlawfully grounded in one of Title VII’s protected classifications.
One area under Title VII where the courts are reluctant to become involved in is disputes over tenure and academic promotion. Courts are hesitant to review the merits of tenure and other academic decisions absent clear evidence of unlawful discrimination. Under the concept of academic abstention, the courts generally recognize that academicians are better suited than they to make the highly subjective judgments that involve the review of scholarship, university service, and teaching. For example, in Namenwirth v. Board of Regents of University of Wisconsin System (1985), the Seventh Circuit accepted as not pretextual the university’s assertion that the female plaintiff was denied tenure because her work showed insufficient promise, a judgment that resulted in her department’s close tenure vote and equivocal recommendation. The court decided that the university’s justification was sufficient to overcome past sex-based discrimination by both the department as a whole and the institution as well as questions concerning the department’s potentially inconsistent treatment of tenure applicants based on gender.
Administrative Enforcement and Judicial Relief
The Equal Employment Opportunity Commission (EEOC) serves as the federal enforcement mechanism for Title VII. Before proceeding to litigation, individuals must exhaust administrative remedies by filing claims with the EEOC within 180 days from the time the alleged discriminatory acts occurred. After employers receive actual notice, and unless the parties reach agreement or the EEOC files suit against the educational institution, its officials must notify the complainants, who then have 90 days to bring civil actions.
Title VII authorizes courts to award a wide range of equitable relief to plaintiffs who establish that colleges and universities intentionally engaged in unlawful employment practices. In academic employment discrimination cases, courts commonly grant injunctive relief, ordering institutional officials to stop engaging in the unlawful discriminatory practices. Courts also often order reinstatement or other equitable relief along with back pay and attorney fees. However, only in exceptional instances have courts awarded tenure and rank promotion; because the judiciary is aware of its lack of expertise in evaluating faculty performance, judges are reluctant to intrude on institutional autonomy over academic issues.
Specific Unlawful Employment Practices
The Pregnancy Discrimination Act of 1978 (PDA), an amendment to Title VII, clarifies and protects the rights of pregnant employees and applicants for employment. The PDA outlaws discrimination against employees or prospective employees based on “pregnancy, childbirth, or related medical conditions.” Further, employers must treat pregnancy-related conditions as they do other temporary disabilities in insurance, fringe benefit, and leave policies that govern the length of leave, the use of leave for disabilities, and the conditions to return to work (such as medical and administrative clearance and notice requirements). In higher education settings, questions may arise concerning the timelines for tenure or academic promotion when faculty members take maternity leave.
Title VII outlaws harassment, typically consisting of offensive words, actions, or conditions that substantially annoy, alarm, or distress persons and that have no legitimate, official purpose. Normally, the unlawful activities must consist of more than stray remarks or isolated behaviors. By way of illustration, the Seventh Circuit affirmed that a dean’s comments that a faculty member who was denied tenure was a “liberal union-oriented Jew” and that the plaintiff missed university events due to her Jewish holidays did not establish unlawful religious discrimination (Adelman-Reyes v. Saint Xavier University, 2007). The court was satisfied that the tenure decision involved numerous layers of review by various university committees and administrators. While harassment in the higher education workplace can be religious, racial, or ethnic, most claims are gender-based. Victims and harassers may be male or female and of the opposite or same sex.
Claims of sexual harassment of employees under Title VII fall into two general categories; Title IX of the Education Amendments of 1972 covers claims of sexual harassment against students. The first, quid pro quo, literally, “this for that,” harassment occurs when employers threaten to or actually make employment decisions, such as hiring, promotion, pay raise, nonfiring, or transfer, contingent on sexual favors from a subordinate or peers.
Courts recognize a second form of harassment, hostile or abusive work environment, when employees are so severely or pervasively mistreated that the conditions exceed what reasonable persons would have been expected to tolerate or if the conditions have affected the persons’ job performance. Examples may be verbal, such as offensive name-calling, description of alleged or imagined behavior, or dirty jokes; physical, such as leering, touching, or exposing oneself; or written, which might include posting offensive cartoons, pictures, or graffiti. Such abusive conditions may result from the behaviors of coworkers or superiors. In these circumstances, alleged victims must report the unwelcomed behavior to college or university officials who have the authority to correct or prevent the harassment. Liability is present if officials react to the actual notice of the alleged harassment with deliberate indifference or disregard.
In addition to Title VII’s general ban against religious discrimination, in 1972 Congress added Section 701(j), which clarifies that the statute’s coverage extends to the religious beliefs, observances, and practices of employees or prospective employees. Officials at colleges or universities must make reasonable accommodations for such workers unless doing so would cause undue hardships on institutional operations. Even so, institutional officials do not have to offer employees preferred choices of reasonable accommodations and are not required to make accommodations resulting in more than minimal costs that can result in undue hardship, such as having to pay overtime to others who would replace individuals who could not work their schedules due to religious conflicts.
Courts have consistently agreed that educational employees have a right to miss work to observe their religious holy days and to maintain their employment status when doing so, but they have no right to paid leave under Title VII. Thus, a federal trial court in New York reached mixed results when a Muslim orderly filed a Title VII claim. The court partially granted the university’s motion for summary judgment in the face of the employee’s claim that he was subject to discrimination on religious grounds because officials at a teaching hospital required him to work on Friday mornings and later terminated his employment (Gay v. S.U.N.Y Health Science Center of Brooklyn, 1998). At the same time, the court rejected the hospital’s motion to dismiss the plaintiff’s retaliation claim, thereby allowing the dispute to proceed to trial.
Another provision of Title VII protects employees from retaliation if they challenge employment actions under the statute. Accordingly, Title VII prohibits college or university officials from retaliating against employees or prospective employees who oppose practices that are made unlawful under the statute by filing complaints or litigation or by participating in investigation or proceedings under the law. In this way, the statute protects complainants from reprisal provided they acted in the goodfaith belief that Title VII was violated, regardless of whether their challenges were successful.
See also hostile work environment; Sexual Harassment, Quid Pro Quo
Mawdsley, R. D. (1996). Employment discrimination on the basis of religion: Where should the line be drawn? Education Law Reporter, 111(4), 1077–1090.
Russo, C. J. (1997). The camel’s nose in the tent: Judicial intervention in tenure disputes at Catholic universities. Education Law Reporter, 117(3), 813–831.
Adelman-Reyes v. Saint Xavier University, 500 F.3d 662 (7th Cir. 2007).
EEOC v. Catholic University of America, 83 F.3d 455 (D.C. Cir. 1996).
Gay v. S.U.N.Y Health Science Center of Brooklyn, 1998 WL 765190 (E.D.N.Y. 1998).
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Namenwirth v. Board of Regents of University of Wisconsin System, 769 F.2d 1235 (7th Cir. 1985).
Pime v. Loyola University of Chicago, 803 F.2d 351 (7th Cir. 1986).
Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555.
Scott v. University of Delaware, 455 F. Supp. 1102 (D. Del. 1978), aff’d in part, vacated and remanded in part, 601 F.2d 76 (3d Cir. 1979).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e (1964).