eeo compliance: how to avoid discrimination in the workplace

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What’s your risk?Mandatory Posting Changes by State since 2010

EEO Compliance: How to Avoid Discrimination in the

Workplace

Eric B. Meyer

Topics Intro to the Equal Employment Opportunity Commission Enforced Laws Bases for Discrimination & Prohibited Policies Preventative Action Posting Requirements Potential Repercussions Charge of Discrimination Investigative Process Circumventing Litigation

Equal Employment Opportunity Commission (EEOC)

EEOC’s Mission: “Stop and Remedy Unlawful Employment Discrimination” Generally, employers with 15 or more employees are

covered by EEOC laws, and employers with 20 or more employees in age discrimination cases

Most employment agencies and labor unions are covered by EEOC laws

These laws apply to hiring, firing, promotions, harassment, training, wages, benefits, and other types of work situations

Enforced Laws

Title VII of the Civil Rights Act of 1964 (Title VII)

The Equal Pay Act of 1963 (EPA)

The Age Discrimination in Employment Act of 1967 (ADEA)

The Pregnancy Discrimination Act of 1978

Title I of the Americans with Disabilities Act of 1990 (ADA)

Sections 102 and 103 of the Civil Rights Act of 1991

Sections 501 and 505 of the Rehabilitation Act of 1973

The Genetic Information Nondiscrimination Act of 2008 (GINA)

Title VII of the Civil Rights Act of 1964 (Title VII)

Makes it illegal to discriminate against some on the basis of race, color, religion, national origin or sex

Requires reasonable accommodation of sincerely held religious beliefs, unless doing so imposes an excessive burden on the operation of business

Makes it illegal to retaliate against those who complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation/lawsuit

The Equal Pay Act of 1963 (EPA)

Makes it illegal to pay different wages to women and men performing equal work in the same workplace

The Age Discrimination in Employment Act of 1967 (ADEA)

Makes it illegal to discriminate against people over the age of 40 on the basis of their age

Sections 501 & 505 of the Rehabilitation Act of 1973

Makes it illegal to discriminate against a qualified person with a disability in the federal government

Requires that employers reasonably accommodate the known physical or mental limitation of an otherwise qualified individual, with a disability, unless doing so imposes an undue hardship on business operations

The Pregnancy Discrimination Act of 1978

Amended Title VII, making it illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth

Title I of the Americans with Disabilities Act of 1990 (ADA)

Makes it illegal for the state and local government, and the private sector, to discriminate against disabled people who are otherwise qualified for the position

Requires employers to reasonably accommodate known physical or mental limitations of an otherwise qualified applicant or employee, unless doing so imposes an undue hardship on the operation of the employer’s business

Sections 102 & 103 of the Civil Rights Act of 1991

Amended Title VII, granting discrimination cases the following traits:

Jury Trials Compensatory Damage Awards Punitive Damage Awards

The Genetic Information Nondiscrimination Act of 2008 (GINA)

Makes it illegal to discriminate against employees or applicants on the basis of genetic information

Genetic information includes information regarding genetic tests and a person’s family medical history

Prohibited Policies & Practices Job Advertisements Recruitment Application & Hiring Background Checks Job Referrals Job Assignments &

Promotion Pay and Benefits Disciple and Discharge Employment References

Reasonable Accommodation for Disability & Religion

Training & Apprenticeship Programs

Terms & Conditions of Employment

Pre-Employment Inquiries Dress Code Constructive Discharge

Bases for DiscriminationRace and Color

• Physical characteristics; skin color; association with a protected individual

National Origin• Accent/language; multilingualism; citizenship; association with a protected individual; national

security

Religion• Reasonable accommodation; association with a protected individual

Sex• Prohibited conduct is sexual in nature; gender-based harassment; pregnancy

Age• Intra-class discrimination; years of service where years of service is a proxy for age (such action

may also be unlawful if it has a disparate impact based on age)

Disability• Does the person in question have mitigating measures (medication, prosthesis, hearing aid etc.);

screening unrelated to business necessity; reasonable accommodation

Following Forms of Discrimination Can Arise Under All Bases

By a Member of the Same Protected Class

Against a Subclass

Intersectional Discrimination

Stereotype

Preventative Options Offered by EEOC:

No-Cost Outreach Programs No cost to employer Publication which includes

general information about employment discrimination laws and charge/complaint process

Representatives are available for meetings, conferences, seminars, professional associations, community organizations etc.

Training Institute

Provided for a fee In-depth training tailored for

employers, which consists of educating managers and employees on laws and discrimination prevention

Training is made available for government and private employers

Mandated Poster “[L]aw requires an employer to post notices

describing the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information.”

It should be “posted in conspicuous places upon [employer’s] premises.” Moreover, the posting should be “in prominent and accessible places where notices to employees, applicants and members are customarily maintained.”

“Equal Employment Opportunity is the Law” Poster

Repercussions for Noncompliance On March 19, 2014 EEOC recalculated the

Penalty for Violation of Notice Posting Requirements based on the inflation adjustment factor

The adjustment became effective on April 18, 2014

The maximum penalty per violation was raised from $110 to $210

Who May File a Charge of Discrimination

Aggrieved persons: Individuals who were subjected to alleged

discrimination Persons (both individuals and organizations) who

were harmed by alleged discrimination against others

Persons bringing a charge “on behalf of” an aggrieved person or persons

EEOC Commissioners

Investigative Response

If the charge is not dismissed when received by the EEOC, the employer will be: Notified within 10 days that a charge of

discrimination has been filed Provided with the contact information of

assigned investigator Average duration of an EEOC investigation

is 182 days

Available Options at Early Stages of Investigation

Employer may select to resolve the charge

through mediation or settlement.

Employer will be advised if the charge

is eligible for mediation.

Employer may inquire about the settlement option.

Potential Obligations During Investigative Process

Submit a statement of

position

Respond to Requests for Information

Permit an on-site visit

Have employees available for

witness interviews or provide their

contact information

Conclusion ofInvestigation

EEOC determines no reasonable cause to believe discrimination

occurredOR

If Investigation Determines No Discrimination Occurred:

Charging party is issued with a

Dismissal and Notice of Rights. This letter informs the charging party that he or she has the right to file a lawsuit in federal

court within 90 days from the date of

receipt of the letter

Employer is notified and receives a copy of

Dismissal and Notice of Rights

If Investigation Concludes Discrimination Occurred:

Employer and charging party

are issued a Letter of

Determination notifying that there is reason

to believe discrimination

occurred

Both parties are invited to

join the EEOC in attempting to resolve the charge by way of an informal Conciliation

Exploring Available Options During & After Investigation

Mediation Conciliation

Mediation

Informal process where a third party assists in reaching voluntarily negotiated resolution of a charge of discrimination

Mediator assists in reaching mutually acceptable solutions and does not impose a decision

Attorneys may be present at mediation

Settlement

Charge may be settled at any point of the investigation

Informal process, but enforceable by law Involves no admission of liability and

allows parties to avoid lengthy and unnecessary litigation

EEOC must approve the settlement Sample settlement agreement

Conciliation

42 U.S.C. 2000e-5 requires EEOC to resolve findings of discrimination through “informal methods of conference, conciliation, and persuasion.”

Charging Party and employer are invited to participate if investigation establishes there is “reasonable cause” to believe discrimination has occurred

Summary Intro to the Equal Employment Opportunity Commission Enforced Laws Bases for Discrimination & Prohibited Policies Preventative Action Posting Requirements Potential Repercussions Charge of Discrimination Investigative Process Circumventing Litigation