Title VII of the Civil Rights Act, the U.S. Department of Justice, and the Gender Integration of Physically Demanding Positions
In this chapter the author reviews the enforcement scheme behind Title VII of the Civil Rights Act of 1964 and uses experience gleaned from a 29-year career as a senior trial attorney and deputy section chief in the Employment Litigation Section of the Civil Rights Division of the U.S. Department of Justice (DOJ) to provide an overview of how the DOJ used its enforcement authority during those years. When the DOJ files a Title VII suit it sues in the name of the United States of America, an action which makes the US “the client” and which has significant consequences for the manner in which litigation is conducted and the type of remedial relief sought. Most often, the United States government pursues systemic changes to the employer’s practices, while the individual charging party seeks individualized relief. The author explains the difference between disparate treatment and disparate impact theories in Title VII liability. Under the disparate treatment theory, the plaintiff has the burden to demonstrate by a preponderance of evidence that the alleged discriminatory conduct was intentional or purposeful. In contrast, the disparate impact theory focuses on the effects of the employment practice or the criteria on which the employment decision is based. Of the two, the latter method is more complex and expensive, and so it usually falls to DOJ rather than private individuals to pursue these cases. In this chapter, the author describes the DOJ’s entry into a lawsuit (United States v. City of Buffalo, 457 F. Supp. 612, 1978) wherein a woman sued the Buffalo, New York Fire Department because of discriminatory employment practices. The litigation, which involved both disparate treatment and disparate impact, illustrates the practical and legal issues the Justice Department addressed in seeking to have women employed as firefighters.
Title VII, Civil Rights Act of 1964, Employment discrimination, Disparate treatment theory, Disparate impact theory
Labor and Employment Law | Law
Ugelow, Richard S. “Title VII of the Civil Rights Act, the U.S. Department of Justice, and the Gender Integration of Physically Demanding Positions.” In Sex Discrimination in the Workplace, edited by Faye J. Crosby, Margaret S. Stockdale, and S. Ann Ropp, 107-116. Malden, MA: Blackwell, 2008.