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Equal Opportunity and Inclusion

EOI & TITLE IX GUIDANCE

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VOL. 2 , ISSUE 3
SEPTEMBER 2021

Top Stories in this Issue

  • What is Title VII?
  • UNF-Related Title VII Regulations and Policies
  • What Does Title VII mean for me in my role at UNF?
  • Types of Title VII issues to report to EOI
  • Test Yourself: Can You Recognize Title VII Discrimination?
  • Bostick v. Clayton County
 

What is Title VII?

Title VII  is a provision of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, religion, gender, pregnancy, or national origin. It applies to employers with 15 or more employees. Under Title VII, an employer may not discriminate with regard to any term, condition, or privilege of employment. Areas that may give rise to violations include recruiting, hiring, promoting, transferring, training, disciplining, discharging, assigning work, measuring performance, or providing benefits

What Does Title VII mean for me in my role at UNF?

The original interpretation of Title VII may have been to treat everyone the same, but there are times when an employer treats some employees differently in order for them to have an equitable employment experience. For example, it may be necessary to alter the hours of an employee’s work schedule in order to accommodate the employee’s religious beliefs to allow the employee to observe a Saturday sabbath.

The Non-Discrimination Regulation (1.0040R) explains the University’s expectations of you regarding treating others equitably. EOI is always happy to consult with you if you have a question about how to proceed in your particular circumstance. A key aspect of compliance is applying departmental procedures fairly and equally to all without exceptions, unless a reasonable accommodation has been requested and granted.

Types of Title VII issues to Report to EOI

For workplace harassment to be illegal, it has to be severe (serious) or pervasive (occur frequently). It may be both severe and pervasive. But one instance of harassing conduct, by itself, is generally not illegal, unless the conduct is very serious, such as a physical assault.  

In addition, an action may be based on a policy that seems neutral as it is written, but it causes disparate impact when it is applied. For example, employers have been removing the question “Have you ever been arrested” from job applications because while the question as asked may be neutral, because minority men are arrested in higher numbers than the general population, they would have to check this box more than the general public and that may put them at a disadvantage in the employment process.

Remember, not everything that is discriminatory is a violation of Title VII. There could be a reason that is not protected, or that does not amount to disparate treatment if it is a petty slight, or the behavior could not be severe or pervasive to be a violation of Title VII.

TEST YOURSELF: Can You Recognize Title VII Discrimination?

Examples adapted from the federal EEOC Website quiz  

The first step to understanding discrimination is being able to recognize it when it happens. Read each hypo below and decide if discrimination has occurred and be able to provide the reason for your answer. Answers for each hypothetical are provided at the bottom of the newsletter. 

HYPO #1:

Tariq, a Christian Arab, works at the UNF bookstore. When a supervisor isn't around, his co-workers call him a terrorist and ask him if his family belongs to ISIS. They also make negative comments about Muslims because they think Tariq is Muslim. Is this a Title VII violation?

HYPO #2:

Jeanette was offered a job in physical facilities that requires manual labor. At the end of her interview, she mentioned that she was pregnant, but said that she was able to do the job and excited about the opportunity. When Jeanette called to get her start date, the manager said he had hired someone else. He said he was afraid that Jeanette would hurt her baby lifting heavy boxes and moving office furniture. He invited her to reapply after she had her baby. Did the manager violate Title VII?

HYPO #3:

Diego, Nate, and Ethan work at the student wellness center. Ethan is gay. Because they know it makes Ethan uncomfortable, Diego and Nate regularly rate the attractiveness of male guests at the wellness center, discuss the sex lives of male guests and celebrities, and play sexually explicit videos that feature naked men on their phones during their lunch breaks. Is Diego and Nate's behavior in violation of Title VII?

HYPO #4:

Naira, who is Native American, works part-time at a university vendor. She tries to register for the company's manager training program, but her supervisor tells her that the class is full, commenting, "It's just as well. After all, you'll make a lot more money working at a casino on your people's reservation." Later that day, the supervisor allows five of Naira's co-workers, none of whom are Native American, to register for the training program. Did the supervisor violate Title VII?

HYPO #5:

Jorge, a Honduran citizen living in the United States, accepted a position as a groundskeeper at UNF. On his first day, Jorge accidentally broke a lawn mower. A co-worker who was helping Jorge learn his position that day yelled at Jorge, called him "stupid," and complained that "foreign kids" like Jorge were "stealing jobs from hard-working Americans." Jorge did not see that co-worker again during the rest of the summer. Is this a violation of Title VII?

HYPO #6:

Sharon transfers to a new location with her employer. Her new supervisor, Paul, is friendly and helps her get familiar with her new job duties. After a few days, when no one else is around, Paul comes over to Sharon's work area to chat. Paul talks about what he did last night, which was to go to a strip club. Sharon is shocked that Paul would bring up such a topic in the workplace and says nothing in response. Paul continues talking and says that all the women in the office are so unattractive that he needs to get out and “see some hot chicks” once in a while. He tells Sharon he is glad she joined the staff because, unlike the others, she is “easy on the eyes.” Sharon feels very offended and demeaned that she and the other women in her workplace are being evaluated on their looks by their supervisor. Is this a violation of Title VII based on sexual harassment?

Bostick v. Clayton County

An individual’s identity as gay or transgender is not specifically listed in Title VII, but the ruling by the Supreme Court in Bostick v. Clayton County indicates that employers need to make sure their employees understand that these individuals are now protected by this legislation.

On June 15, 2020, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation and/or transgender status. The 6-3 decision, the Court held that an employer who fires an individual merely because that individual is gay or transgender violates Title VII because "[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbid. The Court found the term "sex" referred to the biological distinctions between male and female. It should be noted that UNF’s regulation has prohibited discrimination on the basis of sexual orientation and transgender status even before this court case.

INVESTIGATIONS

Total EOI Investigations  

2019-2020 (July 1 - June 30) 129
2020-2021 (July 1 - June 30) 124

 

Current EOI Investigations  

Total August Investigations      18
Cases Opened in August 4
Cases Closed in August 1
Referred to OSAR     1

As of August 31, 2021 

Note: Student Case must be closed by EOI before it can be referred to OSAR 

ANSWER TIME:

ANSWER TO HYPO #1:

Yes. Tariq is being harassed by his co-workers because of his national origin (because he is Arab), which is illegal under federal law. UNF may be held responsible for his co-workers' harassment if it knew about the harassment or should have known about the harassment and did nothing to stop it. Tariq should report his co-workers' behavior to EOI. 

Unlawful discrimination does not always have to involve a negative decision about your job, such as firing or demoting you or reducing your pay. You are protected from unlawful harassment even if it does not result in such a decision. 

 

ANSWER TO HYPO #2:

Yes. The manager discriminated against Jeanette when he refused to hire her because she is pregnant. As long as Jeanette can perform her duties of her position, the manager cannot refuse to hire her because she is pregnant.

It does not matter whether the manager's decision was based on concern for the health and safety of Jeanette and her baby, it was illegal for the manager to refuse to hire Jeanette because she is pregnant. 

It is not illegal under the laws enforced by EEOC for the manager to change his mind about who to hire, as long as he does not make this decision because of Jeanette's pregnancy, or another reason protected by law (such as Jeanette's race or national origin). 

 

ANSWER TO HYPO #3:

Yes. Diego and Nate's behavior is illegal because it occurs frequently, and it is unwelcome because it makes Ethan uncomfortable. It does not matter that the conduct is directed at guests, and not at Ethan. The fact that the harassment occurs during Diego and Nate's lunch breaks does not matter and it also does not matter that the harasser is the same sex as the victim.

Ethan should report the conduct to his supervisor and EOI and request that the harassment stop. Once anyone at UNF knows that Ethan is being harassed, UNF has a responsibility to stop the harassment and prevent it from happening again. At UNF, the responsibility to investigate this type of harassment has been assigned to the EOI Office.

 

ANSWER TO HYPO #4:

Yes, if the supervisor refused to allow Naira to register for the training program because of her race. The supervisor's decision to allow five non-Native American employees to register for the training program after telling Naira that the class was full, along with his comment to Naira, suggest that he may have denied Naira access to the manager training program because she is Native American.

The supervisor's comment about working at a casino on "[her] people's" reservation is not serious or frequent enough to be illegal harassment   by itself. But because the comment shows bias against Native-Americans, it may be further evidence that the supervisor refused to allow Naira into the training program because of her race/ethnicity.

Federal law protects full-time, part-time, seasonal, and temporary employees from employment discrimination. It is illegal to discriminate in all types of work situations, including admission to management training programs.

ANSWER TO HYPO #5:

Although the co-workers conduct was offensive and was directed at Jorge because of his national origin, it was not serious or frequent enough to be illegal harassment. For workplace harassment to be illegal, it has to be severe (serious) or occur frequently (pervasive). It may be both severe and frequent. But one instance of harassing conduct, by itself, is generally not illegal, unless the conduct is very serious, such as a physical assault.

ANSWER TO HYPO #6:

Paul made sexually explicit statements to Sharon, which were derogatory and demeaning to Sharon and her female coworkers. It does not matter that Paul supposedly paid Sharon a “compliment.” The discussion was still highly offensive to Sharon, as it would be to most reasonable persons in her situation.  

Simply bringing up the visit to the strip club was inappropriate in the workplace, especially by a supervisor, and it would be appropriate for Sharon to report this conduct. A one-time comment about going to a strip club is behavior that Paul would be told to stop, even though it probably would not rise to the level of unlawful harassment, unless it was repeated on multiple occasions. Paul's comments about the female employees are a serious matter and show his contempt for women in the workplace.

Paul is required to model appropriate behavior and must not exhibit contempt for employees on the basis of sex or any protected characteristic. Sharon should not have to continue to work for someone she knows harbors such contempt for women, nor should the other employees have to work for such a supervisor. Management should be aware of this, even if the other employees are not, and Paul should be disciplined. If this occurred at UNF, it would be investigated by EOI and referred to ELR for appropriate handling that could include sanctions.

EOI Office Staff Directory

Director and Title IX Coordinator

Marlynn Jones, Esquire

Marlynn.jones@unf.edu

EOI Coordinator

Fantei Norman

Fantei.norman@unf.edu


Office of Equal Opportunity & Inclusion
1 UNF Drive, Building 1, Suite 1200, Jacksonville, FL 32224
904-620-2507
Edited by: Marlynn R. Jones, Esquire