42 USC 2000e

Page 4409

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with
applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the
United States, its departments, agencies, or entities,
its officers, employees, or agents, or any other person.
BARACK OBAMA.

§ 2000e–1. Exemption
(a) Inapplicability of subchapter to certain aliens
and employees of religious entities
This subchapter shall not apply to an employer with respect to the employment of aliens
outside any State, or to a religious corporation,
association, educational institution, or society
with respect to the employment of individuals of
a particular religion to perform work connected
with the carrying on by such corporation, association, educational institution, or society of its
activities.
(b) Compliance with statute as violative of foreign law
It shall not be unlawful under section 2000e–2
or 2000e–3 of this title for an employer (or a corporation controlled by an employer), labor organization, employment agency, or joint labormanagement committee controlling apprenticeship or other training or retraining (including
on-the-job training programs) to take any action otherwise prohibited by such section, with
respect to an employee in a workplace in a foreign country if compliance with such section
would cause such employer (or such corporation), such organization, such agency, or such
committee to violate the law of the foreign
country in which such workplace is located.
(c) Control of corporation incorporated in foreign country
(1) If an employer controls a corporation
whose place of incorporation is a foreign country, any practice prohibited by section 2000e–2 or
2000e–3 of this title engaged in by such corporation shall be presumed to be engaged in by such
employer.
(2) Sections 2000e–2 and 2000e–3 of this title
shall not apply with respect to the foreign operations of an employer that is a foreign person
not controlled by an American employer.
(3) For purposes of this subsection, the determination of whether an employer controls a corporation shall be based on—
(A) the interrelation of operations;
(B) the common management;
(C) the centralized control of labor relations;
and
(D) the common ownership or financial control,
of the employer and the corporation.
(Pub. L. 88–352, title VII, § 702, July 2, 1964, 78
Stat. 255; Pub. L. 92–261, § 3, Mar. 24, 1972, 86
Stat. 103; Pub. L. 102–166, title I, § 109(b)(1), Nov.
21, 1991, 105 Stat. 1077.)

§ 2000e–2

AMENDMENTS
1991—Pub. L. 102–166 designated existing provisions as
subsec. (a) and added subsecs. (b) and (c).
1972—Pub. L. 92–261 reenacted section catchline without change and amended text generally. Prior to
amendment, text read as follows: ‘‘This subchapter
shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious
corporation, association, or society with respect to the
employment of individuals of a particular religion to
perform work connected with the carrying on by such
corporation, association, or society of its religious activities or to an educational institution with respect to
the employment of individuals to perform work connected with the educational activities of such institution.’’
EFFECTIVE DATE OF 1991 AMENDMENT
Amendment by Pub. L. 102–166 inapplicable to conduct occurring before Nov. 21, 1991, see section 109(c) of
Pub. L. 102–166, set out as a note under section 2000e of
this title.

§ 2000e–2. Unlawful employment practices
(a) Employer practices
It shall be an unlawful employment practice
for an employer—
(1) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate
against any individual with respect to his
compensation, terms, conditions, or privileges
of employment, because of such individual’s
race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any
way which would deprive or tend to deprive
any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such individual’s race,
color, religion, sex, or national origin.
(b) Employment agency practices
It shall be an unlawful employment practice
for an employment agency to fail or refuse to
refer for employment, or otherwise to discriminate against, any individual because of his race,
color, religion, sex, or national origin, or to
classify or refer for employment any individual
on the basis of his race, color, religion, sex, or
national origin.
(c) Labor organization practices
It shall be an unlawful employment practice
for a labor organization—
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any
individual because of his race, color, religion,
sex, or national origin;
(2) to limit, segregate, or classify its membership or applicants for membership, or to
classify or fail or refuse to refer for employment any individual, in any way which would
deprive or tend to deprive any individual of
employment opportunities, or would limit
such employment opportunities or otherwise
adversely affect his status as an employee or
as an applicant for employment, because of
such individual’s race, color, religion, sex, or
national origin; or
(3) to cause or attempt to cause an employer
to discriminate against an individual in violation of this section.

§ 2000e–2

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(d) Training programs
It shall be an unlawful employment practice
for any employer, labor organization, or joint
labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his
race, color, religion, sex, or national origin in
admission to, or employment in, any program
established to provide apprenticeship or other
training.
(e) Businesses or enterprises with personnel
qualified on basis of religion, sex, or national
origin; educational institutions with personnel of particular religion
Notwithstanding any other provision of this
subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and
employ employees, for an employment agency to
classify, or refer for employment any individual,
for a labor organization to classify its membership or to classify or refer for employment any
individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his
religion, sex, or national origin in those certain
instances where religion, sex, or national origin
is a bona fide occupational qualification reasonably necessary to the normal operation of that
particular business or enterprise, and (2) it shall
not be an unlawful employment practice for a
school, college, university, or other educational
institution or institution of learning to hire and
employ employees of a particular religion if
such school, college, university, or other educational institution or institution of learning is,
in whole or in substantial part, owned, supported, controlled, or managed by a particular
religion or by a particular religious corporation,
association, or society, or if the curriculum of
such school, college, university, or other educational institution or institution of learning is
directed toward the propagation of a particular
religion.
(f) Members of Communist Party or Communistaction or Communist-front organizations
As used in this subchapter, the phrase ‘‘unlawful employment practice’’ shall not be deemed
to include any action or measure taken by an
employer, labor organization, joint labor-management committee, or employment agency
with respect to an individual who is a member of
the Communist Party of the United States or of
any other organization required to register as a
Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive
Activities Control Act of 1950 [50 U.S.C. 781 et
seq.].
(g) National security
Notwithstanding any other provision of this
subchapter, it shall not be an unlawful employment practice for an employer to fail or refuse
to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment
agency to fail or refuse to refer any individual

Page 4410

for employment in any position, or for a labor
organization to fail or refuse to refer any individual for employment in any position, if—
(1) the occupancy of such position, or access
to the premises in or upon which any part of
the duties of such position is performed or is
to be performed, is subject to any requirement
imposed in the interest of the national security of the United States under any security
program in effect pursuant to or administered
under any statute of the United States or any
Executive order of the President; and
(2) such individual has not fulfilled or has
ceased to fulfill that requirement.
(h) Seniority or merit system; quantity or quality
of production; ability tests; compensation
based on sex and authorized by minimum
wage provisions
Notwithstanding any other provision of this
subchapter, it shall not be an unlawful employment practice for an employer to apply different
standards of compensation, or different terms,
conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or
a system which measures earnings by quantity
or quality of production or to employees who
work in different locations, provided that such
differences are not the result of an intention to
discriminate because of race, color, religion,
sex, or national origin, nor shall it be an unlawful employment practice for an employer to give
and to act upon the results of any professionally
developed ability test provided that such test,
its administration or action upon the results is
not designed, intended or used to discriminate
because of race, color, religion, sex or national
origin. It shall not be an unlawful employment
practice under this subchapter for any employer
to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by
the provisions of section 206(d) of title 29.
(i) Businesses or enterprises extending preferential treatment to Indians
Nothing contained in this subchapter shall
apply to any business or enterprise on or near an
Indian reservation with respect to any publicly
announced employment practice of such business or enterprise under which a preferential
treatment is given to any individual because he
is an Indian living on or near a reservation.
(j) Preferential treatment not to be granted on
account of existing number or percentage
imbalance
Nothing contained in this subchapter shall be
interpreted to require any employer, employment agency, labor organization, or joint labormanagement committee subject to this subchapter to grant preferential treatment to any
individual or to any group because of the race,
color, religion, sex, or national origin of such individual or group on account of an imbalance
which may exist with respect to the total number or percentage of persons of any race, color,
religion, sex, or national origin employed by any
employer, referred or classified for employment
by any employment agency or labor organization, admitted to membership or classified by

Page 4411

TITLE 42—THE PUBLIC HEALTH AND WELFARE

any labor organization, or admitted to, or employed in, any apprenticeship or other training
program, in comparison with the total number
or percentage of persons of such race, color, religion, sex, or national origin in any community,
State, section, or other area, or in the available
work force in any community, State, section, or
other area.
(k) Burden of proof in disparate impact cases
(1)(A) An unlawful employment practice based
on disparate impact is established under this
subchapter only if—
(i) a complaining party demonstrates that a
respondent uses a particular employment
practice that causes a disparate impact on the
basis of race, color, religion, sex, or national
origin and the respondent fails to demonstrate
that the challenged practice is job related for
the position in question and consistent with
business necessity; or
(ii) the complaining party makes the demonstration described in subparagraph (C) with
respect to an alternative employment practice
and the respondent refuses to adopt such alternative employment practice.
(B)(i) With respect to demonstrating that a
particular employment practice causes a disparate impact as described in subparagraph (A)(i),
the complaining party shall demonstrate that
each particular challenged employment practice
causes a disparate impact, except that if the
complaining party can demonstrate to the court
that the elements of a respondent’s decisionmaking process are not capable of separation for
analysis, the decisionmaking process may be
analyzed as one employment practice.
(ii) If the respondent demonstrates that a specific employment practice does not cause the
disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.
(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law
as it existed on June 4, 1989, with respect to the
concept of ‘‘alternative employment practice’’.
(2) A demonstration that an employment practice is required by business necessity may not be
used as a defense against a claim of intentional
discrimination under this subchapter.
(3) Notwithstanding any other provision of
this subchapter, a rule barring the employment
of an individual who currently and knowingly
uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the
Controlled Substances Act (21 U.S.C. 802(6)),
other than the use or possession of a drug taken
under the supervision of a licensed health care
professional, or any other use or possession authorized by the Controlled Substances Act [21
U.S.C. 801 et seq.] or any other provision of Federal law, shall be considered an unlawful employment practice under this subchapter only if
such rule is adopted or applied with an intent to
discriminate because of race, color, religion,
sex, or national origin.
(l) Prohibition of discriminatory use of test
scores
It shall be an unlawful employment practice
for a respondent, in connection with the selec-

§ 2000e–2

tion or referral of applicants or candidates for
employment or promotion, to adjust the scores
of, use different cutoff scores for, or otherwise
alter the results of, employment related tests on
the basis of race, color, religion, sex, or national
origin.
(m) Impermissible consideration of race, color,
religion, sex, or national origin in employment practices
Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any
employment practice, even though other factors
also motivated the practice.
(n) Resolution of challenges to employment practices implementing litigated or consent judgments or orders
(1)(A) Notwithstanding any other provision of
law, and except as provided in paragraph (2), an
employment practice that implements and is
within the scope of a litigated or consent judgment or order that resolves a claim of employment discrimination under the Constitution or
Federal civil rights laws may not be challenged
under the circumstances described in subparagraph (B).
(B) A practice described in subparagraph (A)
may not be challenged in a claim under the Constitution or Federal civil rights laws—
(i) by a person who, prior to the entry of the
judgment or order described in subparagraph
(A), had—
(I) actual notice of the proposed judgment
or order sufficient to apprise such person
that such judgment or order might adversely
affect the interests and legal rights of such
person and that an opportunity was available to present objections to such judgment
or order by a future date certain; and
(II) a reasonable opportunity to present
objections to such judgment or order; or
(ii) by a person whose interests were adequately represented by another person who
had previously challenged the judgment or
order on the same legal grounds and with a
similar factual situation, unless there has
been an intervening change in law or fact.
(2) Nothing in this subsection shall be construed to—
(A) alter the standards for intervention
under rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who
have successfully intervened pursuant to such
rule in the proceeding in which the parties intervened;
(B) apply to the rights of parties to the action in which a litigated or consent judgment
or order was entered, or of members of a class
represented or sought to be represented in
such action, or of members of a group on
whose behalf relief was sought in such action
by the Federal Government;
(C) prevent challenges to a litigated or consent judgment or order on the ground that
such judgment or order was obtained through
collusion or fraud, or is transparently invalid
or was entered by a court lacking subject matter jurisdiction; or

§ 2000e–3

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(D) authorize or permit the denial to any
person of the due process of law required by
the Constitution.
(3) Any action not precluded under this subsection that challenges an employment consent
judgment or order described in paragraph (1)
shall be brought in the court, and if possible before the judge, that entered such judgment or
order. Nothing in this subsection shall preclude
a transfer of such action pursuant to section
1404 of title 28.
(Pub. L. 88–352, title VII, § 703, July 2, 1964, 78
Stat. 255; Pub. L. 92–261, § 8(a), (b), Mar. 24, 1972,
86 Stat. 109; Pub. L. 102–166, title I, §§ 105(a), 106,
107(a), 108, Nov. 21, 1991, 105 Stat. 1074–1076.)
REFERENCES IN TEXT
The Subversive Activities Control Act of 1950, referred to in subsec. (f), is title I (§§ 1–32) of act Sept. 23,
1950, ch. 1024, 64 Stat. 987, which is classified principally
to subchapter I (§ 781 et seq.) of chapter 23 of Title 50,
War and National Defense. For complete classification
of this Act to the Code, see Tables.
The Controlled Substances Act, referred to in subsec.
(k)(3), is title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat.
1242, which is classified principally to subchapter I
(§ 801 et seq.) of chapter 13 of Title 21, Food and Drugs.
For complete classification of this Act to the Code, see
Short Title note set out under section 801 of Title 21
and Tables.
The Federal Rules of Civil Procedure, referred to in
subsec. (n)(2)(A), are set out in the Appendix to Title 28,
Judiciary and Judicial Procedure.
AMENDMENTS
1991—Subsec. (k). Pub. L. 102–166, § 105(a), added subsec. (k).
Subsec. (l). Pub. L. 102–166, § 106, added subsec. (l).
Subsec. (m). Pub. L. 102–166, § 107(a), added subsec.
(m).
Subsec. (n). Pub. L. 102–166, § 108, added subsec. (n).
1972—Subsec. (a)(2). Pub. L. 92–261, § 8(a), inserted ‘‘or
applicants for employment’’ after ‘‘his employees’’.
Subsec. (c)(2). Pub. L. 92–261, § 8(b), inserted ‘‘or applicants for membership’’ after ‘‘membership’’.
EFFECTIVE DATE OF 1991 AMENDMENT
Amendment by Pub. L. 102–166 effective Nov. 21, 1991,
except as otherwise provided, see section 402 of Pub. L.
102–166, set out as a note under section 1981 of this title.
SUBVERSIVE ACTIVITIES CONTROL BOARD
Subversive Activities Control Board established by
act Sept. 23, 1950, ch. 1024, § 12, 64 Stat. 977, and ceased
to operate on June 30, 1973.

§ 2000e–3. Other unlawful employment practices
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings
It shall be an unlawful employment practice
for an employer to discriminate against any of
his employees or applicants for employment, for
an employment agency, or joint labor-management committee controlling apprenticeship or
other training or retraining, including on-thejob training programs, to discriminate against
any individual, or for a labor organization to
discriminate against any member thereof or applicant for membership, because he has opposed
any practice made an unlawful employment
practice by this subchapter, or because he has
made a charge, testified, assisted, or partici-

Page 4412

pated in any manner in an investigation, proceeding, or hearing under this subchapter.
(b) Printing or publication of notices or advertisements indicating prohibited preference,
limitation, specification, or discrimination;
occupational qualification exception
It shall be an unlawful employment practice
for an employer, labor organization, employment agency, or joint labor-management committee controlling apprenticeship or other
training or retraining, including on-the-job
training programs, to print or publish or cause
to be printed or published any notice or advertisement relating to employment by such an
employer or membership in or any classification
or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment
agency, or relating to admission to, or employment in, any program established to provide apprenticeship or other training by such a joint
labor-management committee, indicating any
preference, limitation, specification, or discrimination, based on race, color, religion, sex,
or national origin, except that such a notice or
advertisement may indicate a preference, limitation, specification, or discrimination based on
religion, sex, or national origin when religion,
sex, or national origin is a bona fide occupational qualification for employment.
(Pub. L. 88–352, title VII, § 704, July 2, 1964, 78
Stat. 257; Pub. L. 92–261, § 8(c), Mar. 24, 1972, 86
Stat. 109.)
AMENDMENTS
1972—Subsec. (a). Pub. L. 92–261, § 8(c)(1), inserted provision making it an unlawful employment practice for
a joint labor-management committee controlling apprenticeship or other training or retraining, including
on-the-job training programs, to discriminate against
the specified individuals.
Subsec. (b). Pub. L. 92–261, § 8(c)(2), inserted provisions making prohibitions applicable to joint labormanagement committees controlling apprenticeship or
other training or retraining, including on-the-job training programs, and notices or advertisements of such
joint labor-management committees relating to admission to, or employment in, any program established to
provide apprenticeship or other training.

§ 2000e–4. Equal Employment Opportunity Commission
(a) Creation; composition; political representation; appointment; term; vacancies; Chairman and Vice Chairman; duties of Chairman;
appointment of personnel; compensation of
personnel
There is hereby created a Commission to be
known as the Equal Employment Opportunity
Commission, which shall be composed of five
members, not more than three of whom shall be
members of the same political party. Members
of the Commission shall be appointed by the
President by and with the advice and consent of
the Senate for a term of five years. Any individual chosen to fill a vacancy shall be appointed
only for the unexpired term of the member
whom he shall succeed, and all members of the
Commission shall continue to serve until their
successors are appointed and qualified, except
that no such member of the Commission shall