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Title VII's Magic Number, When Is Fifteen Fifteen?

03/05/07

Does labor law sometime turn on technicalities? As this case shows, it sure does. But hoping a technicality will help you out of legal hot water is poor business practice.

A female secretary in western New York worked for a professional practice that included physicians and dentists. It was owned by physician/dentist who employed two of his sons.

According to the woman, one of the sons “persistently” harassed her sexually. She complained to his father, the owner, whom she said rebuffed her and later fired her.

The woman claimed sexual harassment under Title VII of the Civil Rights Act. Title VII applies to organizations with fifteen or more employees.

The district court dismissed the complaint because the firm did not have “fifteen or more employees for twenty or more calendar weeks in the current or preceding calendar year.” The woman appealed because the firm, including the owner, had fifteen employees.

The Second Circuit Court of Appeals, which covers New York, Connecticut, and Vermont, however, agreed with the district court. It said that while Title VII’s definition of an employee was “circular” (an employee is “any individual employed by an employer”), in this case the owner had absolute power to establish or change company policy at will. Though he also performed “employee duties,” he was not within the class called “employees” who are eligible to sue the firm for violations of Title VII.

In other words, the firm had only fourteen employees for purposes of Title VII, and so the complaint had to be dismissed.

“A result like this is little more than luck,” says G.Neil corporate counsel Wendy Smith. “Other circuit courts might have decided differently, and some states have laws covering harassment no matter how many employees.”

Smith believes it’s far better to have a concrete program designed to eliminate sexual harassment from the workplace. “Don’t play judicial lottery—you owe it to your workers and shareholders to keep harassment and harassers out of the workplace.”