The Fundamental Nature of Title VII

48 Pages Posted: 19 Oct 2014 Last revised: 10 Dec 2014

See all articles by Maria Linda Ontiveros

Maria Linda Ontiveros

University of San Francisco - School of Law

Date Written: November 5, 2014


This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one's own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The "elements approach" places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The "super statute approach" argues that Title VII embodies the fundamental principle, originally found in the Thirteenth Amendment to the U.S. Constitution, that individuals have the right to own and use their own labor free of discrimination, in order to have meaningful economic opportunity. This conclusion is supported by a historical analysis which ties together the Fair Employment Practices Commission (which served as the direct predecessor to Title VII); the work of the Civil Rights Section of Roosevelt's Justice Department; and the Thirteenth Amendment and Anti-Peonage Act jurisprudence to show the connection between Title VII and the principles underlying the Thirteenth Amendment. The "human rights approach" shows that international law also categorizes and interprets employment nondiscrimination provisions in this way. The article uses this analysis to explain why the U.S. Supreme Court's recent moves to categorize and interpret Title VII as a tort are incorrect. Finally, it suggests that, if tort analysis were to be imported into Title VII, the doctrine of duty could be used to argue that Title VII creates an affirmative duty for employers to provide a workplace where all employees have a right to meaningful economic opportunity.

Keywords: fundamental law, Title VII, elements approach, super-statute approach, human rights approach, employment discrimination, nondiscrimination, Civil Rights Act of 1964, Thirteenth Amendment, Anti-Peonage Act, torts, tortification, duty, right to meaningful economic opportunity, Fair Employment Practice

Suggested Citation

Ontiveros, Maria Linda, The Fundamental Nature of Title VII (November 5, 2014). Ohio State Law Journal, Vol. 76, 2014, Univ. of San Francisco Law Research Paper No. 2014-34, Available at SSRN:

Maria Linda Ontiveros (Contact Author)

University of San Francisco - School of Law ( email )

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San Francisco, CA 94117
United States
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