Posted by: Jennifer Milligan
March 30, 2006

Title VII of the Civil Rights Act of 1964 applies only to employers with 15 or more workers.  If you don’t have that many, you may think you can never be liable for employment discrimination under Title VII because you can use the number of employees as a defense at any time, even after trial.  However, that isn’t the case.

The owner for a small restaurant in New Orleans tried to do just that after being sued for sexual harassment under Title VII.  The case ultimately reached the Supreme Court who ruled that employers can’t point out after trial that they didn’t have enough employees for Title VII to apply.  Whether or not the employer has enough employees to be covered by Title VII is just another element of the case for the employee to prove, and employers must raise any defenses during the trial at the latest.  Arbaugh v. Y & H Corp., 125 S.Ct. 2246 (U.S. 2005).  

What does this case mean to you?  Be diligent and raise any and all challenges to an employee’s claims against you as early in the game as possible.  

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