eeo compliance: how to avoid discrimination in the workplace
DESCRIPTION
Most employers are well aware that they must prevent discrimination in the workplace, yet, within the past 5 years, the Equal Employment Opportunity Commission (EEOC) received the highest number of charges of discrimination and retaliation in its 50+ year history. From an employer’s perspective, settlement costs to resolve an EEOC claim fade in the face of additional, often unrecorded, costs to the employer’s organization, such as the potential loss of employee morale or the employer’s reputation. This webinar will show you how to avoid these costs by teaching you: What qualifies as discrimination under the EEOC Which laws are enforced by the EEOC How to stay in compliance with those laws What an employer’s obligations are, including EEOC posting requirements And moreTRANSCRIPT
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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