HR Alert: Title VII Theories of Liability

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Welcome back to our series on Title VII. Our previous blog answered the “what” of Title VII.

So, now let’s take a peek at the “how,” that is, how a claim generally is made by an employee against their employer using this longstanding federal law.

We know that Title VII prohibits a broad range of discriminatory employer conduct based on race, color, national origin, religion and sex (including gender, pregnancy, sexual orientation, and gender identity). 42 U.S.C. § 2000e-2.

Let’s look at some of the legal theories that a complainant (that’s your employee or former employee) is allowed to allege under Title VII so you’re informed. This way, you can avoid these legal pitfalls and the risks that come with them.

Title VII Legal Theories

Disparate Treatment or Impact

Disparate treatment is the most obvious form of discrimination against employees or job applicants based on their protected class status. Disparate treatment discrimination occurs when an employer treats one applicant or employee differently than a similarly-situated applicant or employee because of that individual’s race, color, national origin, sex (including gender, pregnancy, sexual orientation, and gender identity), or religion.

Disparate impact discrimination occurs (often unintentionally) when a seemingly neutral policy or practice unduly disadvantages individuals based on their protected class. This is a more subtle form of unlawful conduct where once a claimant demonstrates that a policy or practice has a disproportionately harmful effect on a protected class, the employer must show that (1) the policy or practice is “job related for the position in question and consistent with business necessity” or (2) no other alternative employment requirement would suffice.

For example, if employees must pass physical strength tests or height criteria – requirements that appear neutral at first glance – it may still have a disparate impact on women or other protected groups.

Pattern or Practice of Discrimination

Pattern or practice cases may allege either or both disparate treatment or disparate impact, but they always allege extensive violations – and under Title VII, the EEOC is empowered to sue employers that it believes have engaged in such conduct.

There is a distinct burden of proof used when the EEOC or a claimant seeks to show that there is a pattern or practice of discrimination. For one, they must show that the conduct, i.e., that pattern or practice, is not sporadic, and rather, it is the employer’s standard operating procedure. Statistical evidence is particularly significant in pattern or practice cases, so be sure to review your numbers periodically to address any anomalies.

Failure to Accommodate

Under Title VII, employers are required to reasonably accommodate an applicant’s or employee’s sincerely-held religious belief that conflicts with a job requirement, unless it would cause an undue hardship on the employer’s business. This is different from other theories of discrimination that require employers to treat applicants and employees equally, regardless of their membership in any protected class. This is because the accommodation obligation requires employers to provide special treatment to protected class members in certain situations. For example, a company with a policy generally prohibiting employees from using headwear may need to make an exception to permit a Jewish employee to wear a yarmulke or a Muslim employee to wear a Hijab. We talked about this recently when we addressed this summer’s Supreme Court decision in Groff v. DeJoy.


Harrassment is recognized as a form of prohibited discrimination under Title VII.  Harassment claims under Title VII are generally divided into two categories which are called (1) quid pro quo harassment (“this for that”) and (2) hostile work environment.


An employer may be held liable for negligence under Title VII if an employer fires an employee based on a non-supervisory coworker’s discriminatory actions. For example, if a co-worker makes critical or negative comments about a fellow employee with discriminatory intent and the employer fires the victim based on the comments, the employer may be held liable for negligence if it knew or should have known of the co-worker’s discriminatory intent.


Retaliation is a form of adverse employment action taken against an individual for asserting rights under Title VII. An employer cannot discriminate against an applicant or employee because that person (1) opposes any practice prohibited by Title VII, (2) files a charge of discrimination under Title VII, or (3) testifies, assists, or participates in an investigation or proceeding under Title VII.

Retaliation is a word often thrown around when an employee experiences any unfavorable work outcome which might not necessarily be the case – but it can be! So stay tuned to our series for a closer look.

Practice Pointers

Employers may be held liable under these theories and be subjected to injunctive relief (which is an order requiring an employer to do something or to stop doing something), and employers could become liable for things like back pay, reinstatement of the employee, compensatory and punitive damages, and/or attorneys’ fees. Know the basics so you can best keep your company on track!

Follow along for more practice pointers in our blog series to help you avoid any possible penalties. Be sure to take caution when walking unknown territory in employment situations and feel free to reach out to the team at The Coppola Firm for guidance in any manner.

If you have any questions about Title VII and how it affects your business, reach out to us at 716.839.9700 or email us at

Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

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