Employment discrimination

DESCRIPTION: Act of making decisions related to hiring and promoting workers based on non-job-related characteristics such as race, color, religion, national origin, gender, age, and disability.

SIGNIFICANCE: The Fourteenth Amendment prohibits state-sponsored discrimination, and Congress, through its authority to regulate interstate commerce, has passed several important statutes preventing employment discrimination. Through the Supreme Court’s power to interpret these statutes, it influences employment discrimination law and policy.

Title VII of the Civil Rights Act of 1964 (including its amendments) is the most important employment discrimination statute in U.S. law. It forbids employment discrimination on the grounds of race, color, religion, sex, or national origin by private companies (with at least fifteen employees), labor unions, employment agencies, and federal, state, and local governments. In 2020, the Supreme Court of the United States (SCOTUS) ruled that the act also protects against discrimination based on sexual orientation or gender identity. The statute also created the Equal Employment Opportunity Commission (EEOC) to investigate charges of discrimination, attempt to arrange an agreement, and, if necessary, file suit in federal court on behalf of the plaintiff. Congress also passed the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990, which extend similar protections against age and disability discrimination in the workplace. Although some Supreme Court litigation addressed employment discrimination in religion, national origin, disability, and age, the bulk of the Court’s influence was in the areas of race and gender.

Race

Because racial discrimination has been so prominent in U.S. history, most of the Supreme Court’s rulings involving Title VII concern race. In Griggs v. Duke Power Co. (1971), the Court had to decide whether African Americans could pursue a Title VII claim for employment practices that were not intended to discriminate but nevertheless put them at a disadvantage. The Duke Power Company used an examination as a standard for hiring and promotion. On this test, not directly related to job duties, blacks generally scored lower than whites. The Court ruled unanimously that even if there is no discriminatory intent, a practice that has a disparate impact on a protected class constitutes a Title VII violation. However, in Wards Cove Packing Co. v. Atonio (1989), the Court held that to establish disparate impact, plaintiffs needed to go beyond demonstrating that a particular practice caused a statistical disparity. Plaintiffs must also prove that the disparity did not result from a business necessity. The Civil Rights Act of 1991 reversed the Court’s interpretation in Wards Cove, shifting the burden of proof to the employer to show that the employment practice is directly related to the position in question and is necessary for the normal operation of the business.

Furthermore, in McDonnell Douglas Corp. v. Green (1973), the Court addressed how to prove discriminatory intent (disparate treatment). Aircraft manufacturer McDonnell Douglas refused to rehire a black worker who had protested his layoff by criminally trespassing on McDonnell Douglas property. Although the Court sided with McDonnell Douglas, it did articulate a procedure for proving disparate treatment, which generally favors plaintiffs. First, the employee must show only that he/she is a member of a racial minority, applied and was qualified for the job, was rejected, and the position remained open. Then, the employer has a chance to provide a nondiscriminatory reason for its practice, but the plaintiff still has an opportunity to demonstrate that the employer’s claim is a pretext for discrimination. In short, when a plaintiff alleges disparate treatment, the employer shoulders the burden of justifying the employment practice.

Not all racial employment discrimination litigation is based on Title VII. In Johnson v. Railway Express Agency (1975), the Court ruled that the Civil Rights Act of 1866 prohibited racial discrimination in private contracts, including discriminatory hiring. In Patterson v. McLean Credit Union (1989), the Court refused to apply this statute to racial harassment in the workplace. However, the Civil Rights Act of 1991 amended the 1866 act to cover racial harassment.

Gender

Because gender discrimination is covered under Title VII, the landmark rulings for race apply to women as well, although there are several issues that are distinct for sex discrimination. First, Title VII allows for discrimination in cases in which it may be reasonably necessary for the operation of the business in question, thus establishing the bona fide occupational qualification exception. In upholding Alabama’s exclusion of women from guard positions in maximum security prisons, the Court nevertheless articulated a stringent standard for allowing an occupational qualification exception in Dothard v. Rawlinson (1977). Any bona fide occupational qualification must be a “business necessity,” which is usually difficult for an employer to establish. In Automobile Workers v. Johnson Controls (1991), the Court ruled that a battery manufacturer may not use the bona fide occupational qualification to exclude women of childbearing age from jobs that expose them to toxic materials that may damage a potential fetus.

Another gender discrimination issue concerns sexual harassment. In Meritor Savings Bank v. Vinson (1986), the Court ruled that sexual harassment did constitute sexual discrimination under Title VII. It decided further that a plaintiff could bring a Title VII action even if she does not suffer any physical or psychological damage (Harris v. Forklift Systems, 1993) or is unable to establish employer negligence (Burlington Industries v. Ellerth, 1998).

The twenty-first century highlighted another gender discrimination issue: workplace discrimination against the LGBTQ community. In Bostock v. Clayton County, Georgia (2020), the Supreme Court ruled that the Civil Rights Act of 1964 protects employees who are gay, lesbian, and transgender from being discriminated against based on sexual orientation and gender identity.

In 2025, the Supreme Court unanimously decided in Ames v. Ohio Department of Youth Services that a heterosexual woman named Marlean Ames did not have to show that her employer, the Ohio Department of Youth Services, discriminated against heterosexual people to sue for workplace discrimination based on her sexual orientation. The SCOTUS decision resolved a circuit court debate over what was known as the background-circumstances rule in cases of reverse discrimination: whether members of a majority group had an additional burden, compared to members of a minority group, of showing that their employer had a history of discriminating against the majority group.

Bibliography

Bloch, Farrell. Antidiscrimination Law and Minority Employment: Recruitment Practices and Regulatory Constraints. U of Chicago P, 1994.

Chambers, Henry L., Jr. "The Wild West of Supreme Court Employment Discrimination Jurisprudence." South Carolina Law Review, vol. 61, no. 3, 2010, pp. 577–93.

Epstein, Richard A. Forbidden Grounds: The Case against Employment Discrimination Laws. Harvard UP, 1992.

Fitzgerald, Hannah J., et al. "U.S. Supreme Court Holds No Higher Standard for 'Majority Group' Discrimination Claims." Holland and Knight, 10 June 2025, www.hklaw.com/en/insights/publications/2025/06/us-supreme-court-holds-no-higher-standard-for-majority-group. Accessed 16 July 2025.

Friedman, Joel William. The Law of Employment Discrimination: Cases and Materials. 14th ed., West Academic Publishing, 2024.

Hall, Kermit L. Freedom and Equality: Discrimination and the Supreme Court. Garland, 2000.

Howe, Amy. "Supreme Court Rules for Straight Woman Who Claims She Was Subjected to Reverse Discrimination." SCOTUSblog, Dispatch Media, 5 June 2025, www.scotusblog.com/2025/06/supreme-court-rules-for-straight-woman-who-claims-she-was-subjected-to-reverse-discrimination/. Accessed 16 July 2025.

Kim, Pauline T. "Addressing Systemic Discrimination: Public Enforcement and the Role of the EEOC." Boston University Law Review, vol. 95, no. 3, 2015, pp. 1133–54.

Liptak, Adam. "Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules." The New York Times, 14 Oct. 2021, www.nytimes.com/2020/06/15/us/gay-transgender-workers-supreme-court.html. Accessed 16 July 2025.

Ontiveros, Maria, et al. Employment Discrimination Law: Cases and Materials on Equality in the Workplace. 9th ed., West, 2016.

"Selected Supreme Court Decisions, 2000 – 2023." U.S. Equal Employment Opportunity Commission, www.eeoc.gov/history/selected-supreme-court-decisions-2000-2023. Accessed 16 July 2025.