Equal Opportunity Employer Guide for Discrimination Laws 2024

To be an equal opportunity employer, federal employment discrimination law and state-specific legislation must be understood and complied with, especially in today’s world where employment discrimination is a topic continuously at the forefront of legislative change.

Here are the most important things that every employer should know regarding federal discrimination laws.

Federal Discrimination Law 

Discrimination laws prohibit qualified employers from discriminating against any applicant or employee in any way, including:

• Job application procedures
• Hiring
• Job training
• Compensation
• Advancements or promotions
• Termination
• And other terms, conditions, and privileges of employment

Since the 1960s, there have been several federal labor laws in place to prevent employment discrimination. All of these were created to protect both employees and employers from the many different forms of discrimination.

2024 Updates

To assist in the priority of achieving the EEOC’s vision of fair and inclusive workplaces, the EEOC has refined its Strategic Enforcement Plan (SEP) to take place from 2024 to 2028 in order to combat employment discrimination, promote inclusive workplaces, and respond to the national call for racial and economic justice.

The newly refined SEP is set to address the following:

Broaden the Focus on Vulnerable and Marginalized Workers

This includes:

• People with intellectual and developmental disabilities
• Workers facing mental health-related disabilities
• Individuals with arrest or conviction records
• LGBTQ+ Individuals
• Temporary workers
• Older workers
• Individuals employed in low-wage jobs
• Teenage workers
• Persons with limited literacy or English proficiency

Enhance the Emphasis on Recruitment and Hiring Strategies

This is to encompass efforts to tackle policies and practices that restrict access, due to protected status, to on-the-job training, pre-apprenticeship or apprenticeship programs, temp-to-hire positions, internships, or other job training or advancement opportunities.

Acknowledge the Growing Reliance on Technology by Employers

This involves leveraging artificial intelligence or machine learning algorithms to direct job advertisements, attract applicants, and facilitate or directly influence hiring and other employment-related decisions, practices, or policies. This effort is meant to further ensure fairness and equity throughout these processes, thereby enhancing efficiency and effectiveness while promoting inclusivity and eliminating bias.

Revamp the Prioritization Concerning Emerging and Developing Issues

In order to further address issues such as employment discrimination, promote more inclusive workplaces, and respond to the national call for racial and economic justice, the EEOC is putting priority toward, and addressing emerging issues such as:

• Discrimination in employment linked to the enduring impacts of the COVID-19 pandemic, such as long COVID
• Discrimination shaped by or emerging as a reaction to global, national, or local occurrences, including bias stemming from ongoing historical prejudices
• Ensuring the rights of employees impacted by pregnancy, childbirth, or related medical conditions as outlined in the Pregnancy Discrimination Act (PDA) and the Pregnant Workers Fairness Act (PWFA), alongside accommodations for disabilities related to pregnancy under the Americans with Disabilities Act (ADA)
• Standards for qualifications and rigid policies or practices that unfairly disadvantage individuals with disabilities

Ensure Continued Access to the Legal System

This ensures better access to the legal system and to legal action by examining and addressing excessively broad waivers, releases, non-disclosure agreements, or non-disparagement agreements.

Delivery of Results

To ensure that the EEOC is achieving its goals regarding the SEP for 2024 to 2028, program offices will present progress reports to the Commission during semi-annual briefings.

The three offices consist of:

• The Office of Federal Operations - The Office of Federal Operations is responsible for providing updates on federal sector activities related to the SEP priorities.
• The Office of General Counsel - The Office of General Counsel is tasked with providing updates on litigation related to SEP priorities.
• The Office of Field Programs - The Office of Field Programs will provide updates on enforcement activities, outreach, education, and training related to SEP priorities.

Equal Employment Opportunity Commission (EEOC)

The Equal Employment Opportunity Commission (EEOC) is a federal agency that protects civil rights by administering and enforcing employment discrimination laws. The EEOC is the main line of defense against discrimination in the workplace. Created by the Civil Rights Act of 1964, the EEOC began in 1965 and is still operating today.

The EEOC consists of five members, who are appointed by the president of the United States along with input and approval from the Senate.

EEO-1 Reporting and the EEO-1 Survey

The EEO-1 Survey is a mandatory annual report collected by the EEOC, which is required from all private-sector employers with 100 or more employees and federal contractors with 50 or more employees meeting certain criteria. These employers must submit demographic data across their employees, which includes data by race / ethnicity, sex, and job categories. Most HR software comes with standard EEO-1 reports employers can use to fulfill this requirement.  

For employers who fail to file their EEO-1 survey or report, the EEOC may seek a court order requiring these non-compliant employers to file the report. Employers who intentionally file false EEO-1 data and summaries may incur fines or even jail time.

EEO-1 Reporting Deadlines for 2022 Reporting Period

The 2022 EEO-1 reporting window was postponed, and will officially commence on October 31, 2023, with a submission deadline of December 5, 2023.  
 
Employers should take a look at the updated 2022 EEO-1 Component 1 Data File Upload Specifications for filers.

Other Types of EEO Reporting

There are three other types of EEO Data Collection, that each apply to specific types of businesses. They include the following:

• EEO-3 - which applies to local unions
• EEO-4 - which applies to state and local government information
• EEO-5 - which applies to elementary through secondary school staff

Businesses do not need to submit more than one report. If none of the above-listed reports apply to your business, then you should submit the EEO-1 Report. However, if any of the above reports DO apply to your business, then you should submit these in place of the EEO-1 report.

EEO Posting Requirements and the "Know Your Rights: Workplace Discrimination is Illegal" Poster

On October 19, 2022, The EEOC released a new poster that employers are required to display, called the "Know Your Rights: Workplace Discrimination is Illegal" Poster. This poster updates and replaces the previous “EEO is the Law” poster.

The poster should be placed in a conspicuous, easily accessible location in the workplace where other notices are typically posted.

2023 EEO Posting Updates and Changes to the "Know Your Rights: Workplace Discrimination is Illegal" Poster

With the creation of the Pregnant Workers Fairness Act (PWFA), which went into effect June 27, 2023, employers will need to ensure that their "Know Your Rights: Workplace Discrimination is Illegal" Poster is up to date. 

Employers can find the date of their poster in the bottom right corner. Anything not dated after June 27th may very well be out of date.

This is why something such as a labor law poster service can be vital to employers. In the instance of the PWFA, employers using such a service would have received the posting update as soon as it became available.

2022 EEO Update

In 2022, the following update was made to EEO legislation:

• A clarification on sex discrimination in which the term includes discrimination based on pregnancy and related conditions, sexual orientation, or gender identity
• A note that harassment is a prohibited form of discrimination
• A section covering equal pay discrimination for federal contractors

In addition to the legislative updates, a new poster was announced which included a QR code with a link to file an EEO complaint, as well as an updated format using plain language and bulleted format. 

Civil Rights Acts (and The Equal Pay Act)

There are two civil rights acts that make up the foundation of anti-discrimination laws in the United States. Without the Civil Rights Act of 1964 in particular, anti-discrimination would almost be nonexistent. The civil rights act stemmed from the Equal Pay Act of 1963, one of the first employment discrimination laws made.

The Equal Pay Act of 1963

The Equal Pay Act of 1963 prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions.

The Equal Pay Act prohibited sex discrimination in the workplace in terms of employee compensation.

Update 10/19/22: Sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation, or gender identity.

Equal Pay Act Provisions & Rules

No employer shall discriminate between employees on the basis of sex. This applies to employees of opposite sexes when the work being done is viewed as a composite of skill, effort, and responsibility. Work must also be done under similar conditions.

When there is a differential in pay between employees of the opposite sex, the employer must demonstrate the difference in pay is due to another bonafide factor other than sex. Some of these reasons that are acceptable are:

• When payment is determined via a seniority system
• When payment is determined via a merit system
• When payment is determined via a system that measures earnings by quantity or quality of production

Equal Pay Act Amendment

The Lily Ledbetter Fair Pay Act of 2009 lifted the severe restriction on the time period for filing complaints of employment discrimination concerning compensation.

Discrimination charges can now be filed within 180 days of the discriminatory pay thanks to the act. The law also now states that each discriminatory paycheck that an employee receives, be treated as its own instance of discrimination.

The Civil Rights Act of 1964 (Title VII)

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on a person's race, color, religion, sex, sexual orientation, or national origin (known as protected classes) and applies to employers who have at least 15 employees.

In 1978, the Pregnancy Discrimination Act was passed, adding pregnancy, childbirth, or other related conditions to the list of protected classes. This added to the protection of sex discrimination in the workplace. 

Title VII is possibly the most important federal discrimination law that there is.

Civil Rights Act Provisions & Rules

Under this discrimination law, an employer can't refuse to hire, promote, or terminate an employee, based on their color, race, religion, sex, sexual orientation, or national origin. An employer may also not segregate employees in a way that would affect their employment opportunities or employee status based on those same traits. 

Employers are also prohibited from using these traits to help determine things like pay, fringe benefits, retirement plans, or disability leave. Employers may not harass employees or applicants because of these traits either.

In addition to typical employers, Title VII also applies to employment agencies and labor organizations. 

Employment agencies may not refuse to refer a candidate for employment or in any other way discriminates against a candidate based on their, color, race, religion, sex, sexual orientation, or national origin.

Labor organizations may not refuse to give, or expel an employee from membership or in any other way discriminates against a candidate based on their color, race, religion, sex, sexual orientation, or national origin.

Civil Rights Act Amendment

The Civil Rights Act of 1991 amended Title VII by providing monetary damages to plaintiffs (employees who sue for unlawful discrimination practice) for intentional employment discrimination. An employee may recover punitive damages from an employer if the employee demonstrates that the employer engaged in a discriminatory practice and violated one of the several federal discrimination laws.

Federal Discrimination Law Penalties for Violating Civil Rights

Before damages are awarded it must first be determined that the discrimination is not only intentional but must also cause:

• Future pecuniary losses
• Emotional pain
• Suffering
• Inconvenience
• Mental Anguish
• Loss of enjoyment of life
• Other nonpecuniary losses

The amount of punitive damages awarded to plaintiffs are as follows:

• In the case of an employer who has more than 14 and less than 101 employees, in each of 20 or more calendar weeks in the current or preceding calendar year, shall not exceed $50,000
• In the case of an employer who has more than 100 and less than 201 employees, in each of 20 or more calendar weeks in the current or preceding calendar year, shall not exceed $100,000
• In the case of an employer who has more than 200 and less than 501 employees, in each of 20 or more calendar weeks in the current or preceding calendar year, shall not exceed $200,000
• In the case of an employer who has more than 500 employees, in each of 20 or more calendar weeks in the current or preceding calendar year, shall not exceed $300,000

Civil Rights Act Required Notices

Employers must have an EEOC-approved poster that includes, at the very least, summaries of the pertinent provisions set forth by this law. The poster must be in an easily accessible and viewable place, on the work premises, and on every premise where work is performed.  

All-in-one federal and state labor law posters are an easy way to address these notice requirements and all the other posting requirements listed throughout the article, especially with a labor law poster subscription service. 

Age Discrimination Laws

Since the Civil Rights Act of 1964, there have been many laws that have expanded the protections under anti-discrimination laws. 

The Age Discrimination in Employment Act of 1967 (ADEA) protects employees ages 40 years and older from discrimination based on their age in hiring, promotion, termination, compensation, terms, conditions, or privileges of employment. The ADEA applies to employers with 20 or more employees.

ADEA Provisions & Rules

An employer may not refuse to hire or terminate an employee or in any other way discriminate against an employee because of their age in regards to:

• Compensation
• Employment terms
• Employment conditions
• Privileges of employment 

An employer may also not segregate or classify employees by age in which doing so would deprive or tend to deprive any individual of employment opportunities. 

Cutting wages in order to comply with this discrimination law is also prohibited. Meaning if there is an illegal discrepancy in compensation, the party being paid less must be given a raise to make compensation equal. 

Like the previous act, this discrimination law also applies to employment agencies and labor organizations. 

An employment agency may not refuse to refer a candidate for employment or in any other way discriminate against a candidate based on their age. A labor organization may not refuse to give or expel an employee from membership or in any other way discriminate against a candidate based on their age.

No employer, employment agency, or labor organization may retaliate or discriminate against any employee who opposes an unlawful practice.

ADEA Required Notices

Employers must have a poster that includes, at the very least, summaries of the pertinent provisions set forth by this law. The poster must be in an easily accessible and viewable place, on the work premises, and on every premise where work is performed. It must be EEOC approved like these labor law posters.

Disability Discrimination Laws

Laws preventing discrimination against disabilities started with the Rehabilitation Act of 1973. This law protected employees and applicants with disabilities against discrimination in the federal government sector.

Since then, there have been several laws that address discrimination against employees and applicants with disabilities. Most notable are Title I and V of the Americans with Disabilities Act of 1990, or simply the Americans with Disabilities Act (ADA).

The Americans with Disabilities Act (ADA)

The Americans with Disabilities Act, which is commonly referred to as the acronym ADA, prohibits private employers, state and local governments, unions, and employment agencies from discriminating against disabled individuals in virtually any aspect of employment from application to termination.

This law is the proverbial legislative backbone that guarantees the protection of Americans with disabilities against discrimination.

ADA Definition of Disability Under Discrimination Law

In 2008, the Americans with Disabilities Act, Amendments Act (ADAAA) was passed. It emphasized and expanded the definition of disability. Now, a person with a disability is defined as an individual who:

• Has a physical or mental impairment that substantially limits one or more major life activities
• A record of such an impairment
• Being regarded as having such an impairment

Major life activities are placed into two categories - general major life activities and major bodily functions.

General Major Life Activities:

• Caring for oneself
• Performing manual tasks
• Seeing
• Hearing
• Eating
• Sleeping
• Walking
• Standing
• Lifting
• Bending
• Speaking
• Breathing
• Learning
• Reading
• Concentrating 
• Thinking
• Communicating 
• Working

Major Bodily Functions: 

• Immune system
• Normal cell growth
• Digestive system
• Bowel movement
• Bladder
• Neurological system
• Brain
• Respiratory system
• Circulatory system
• Endocrine system
• Reproductive system 

Impairments can not be transitory. This means that they can not be temporary (which is an actual or expected duration of 6 months or less).

ADA Provisions & Rules

No employer, who is covered under this federal discrimination law, may discriminate against an employee or applicant on the basis of disability in regards to:

• Job application procedures 
• Hiring
• Advancement/Promotion
• Termination 
• Compensation 
• Job training
• And any other terms, conditions, and/or privileges of employment 

For more information regarding disability discrimination in a construction setting, see the EEOC’s website. 

Under the ADA, employers who have 15 or more employees are usually required to provide reasonable accommodations to employees with disabilities.

These accommodations may include:

• Changing job tasks
• Providing reserved parking
• Improving accessibility in a work area
• Changing the presentation of tests and training materials 
• Provide or adjust a product, equipment, or software
• Allow a flexible work schedule 
• Provide an aid or a service to increase accessibility 
• Reassign to a vacant position

ADA Exceptions & Defenses

An appropriate defense would be a case where the discrimination of an employee or a candidate with a disability, is job-related and consistent with business necessity. Such performance must also not be accomplishable by reasonable accommodation.

This federal discrimination law does not apply to religious corporations, associations, or schools that give preferential treatment to individuals of a particular religion; or require that employees and applicants be of a particular religion. 

A qualified individual with a disability also does not include an employee or applicant who currently engages in the use of illegal drugs or substances.

ADA Required Notices

Employers must have a poster that includes, at the very least, summaries of the pertinent provisions set forth by this law. The poster must be in an easily accessible and viewable place, on the work premises, and on every premise where work is performed. It must be EEOC approved but can be part of an all-inclusive labor law poster or labor law poster subscription service.

Genetic Discrimination Laws

There are also laws that pertain to protections against discriminating against employees and applicants because of genetic traits and information. These laws cover discrimination, harassment, the confidentiality of genetic information, and the acquisition of genetic information.

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)

Title II of the Genetic Information Nondiscrimination Act of 2008 prohibits employment discrimination based on genetic information. GINA prohibits the use of genetic information in making employment decisions and restricts employers from requesting, requiring, or purchasing genetic information. The discrimination law also strictly limits the disclosure of genetic information.

GINA Definition of Genetic Information Under Discrimination Law

The definition of genetic information under this discrimination law includes information about an employee’s and their family’s genetic tests. It also includes information regarding disease and disorders in the family genetic history (also known as family medical history). 

The definition also includes:

• An employee’s request for, or receipt of genetic services
• An employee’s participation in clinical research that includes genetic services
• The genetic information of a fetus carried by an employee, or by a pregnant woman who is a family member of the employee
• The genetic information of any embryo legally held by the employee, or employee’s family member using an assisted reproductive technology

GINA Provisions & Rules

Protections for genetic information discrimination pertain to two different categories - discrimination and harassment.

GINA Discrimination Rules & Provisions

An employer may not use genetic information to make an employment decision because that information is not relevant to an employee’s capability to work. 

The law forbids discrimination on the basis of genetic information when it comes to:

• Hiring
• Termination 
• Compensation
• Job assignment
• Promotions
• Lay-offs
• Job training
• Fringe benefits
• Or any other term or condition of employment

GINA Harassment Rules & Provisions

Employers, nor employees may harass a person because of his or her genetic information. An example of harassment would be making offensive or derogatory marks towards a person as a result of their, or a family member’s genetic information. However, teasing and such is not considered harassment by default. 

Harassment becomes illegal when it is so severe or pervasive that it creates a hostile or offensive work environment. It also becomes illegal when it results in an adverse employment decision. 

A harasser can be a supervisor, a co-worker, or someone who is not an employee, such as a client or customer.

Confidentiality of & the Acquiring of Genetic Information Under GINA

Typically, it is illegal for a covered entity to obtain genetic information. 

Exceptions can include:

• Inadvertent acquisitions of genetic information, such as overhearing someone
• Genetic information may be obtained through health or genetic services, such as a wellness program offered by the employer
• Family medical history may be acquired for FMLA leave certification
• Genetic info may be acquired inadvertently through public records, such as a newspaper
• Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace
  • Monitoring must be required by law
  • The program must be voluntary
• Acquisition of genetic information may be permitted for employers who engage in DNA testing for law enforcement purposes

It is also illegal to disclose genetic information about applicants, employees, or members. This information must be kept confidential and in a separate medical file.

An exception to this is the disclosure of relevant genetic information to government officials investigating compliance with Title II of GINA and for disclosures made pursuant to a court order is permitted.

GINA Required Notices

Employers must have a poster that includes, at the very least, summaries of the pertinent provisions set forth by this law. The poster must be in an easily accessible and viewable place, on the work premises, and on every premise where work is performed. It must be EEOC approved, but can be part of an all-inclusive labor law poster or labor law poster subscription service.

Discrimination Laws Protecting Pregnant Women and Nursing Mothers in the Workplace

There are also discrimination laws in place to protect pregnant women as well as nursing mothers in the workplace. 

PUMP for Nursing Mothers Act (“PUMP Act”)

On December 29, 2022, President Biden signed the Consolidated Appropriations Act, 2023 into law. This included the PUMP for Nursing Mothers Act (“PUMP Act”).

The new law extends coverage to more nursing employees the rights to receive break time to pump and a private place to pump at work. Now, nearly all FLSA-covered employees have the right to take the needed time and to access an appropriate space to express breast milk for a nursing child (up to one year after child birth).

Important to note is that employers with fewer than 50 employees are not subject to the FLSA break time and space requirements if compliance with the provision would impose an undue hardship. Businesses should be aware of any state or local laws, however, that may extend coverage further.

The Pregnant Workers Fairness Act (PWFA)

The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. While there are other laws that protect pregnant employees from discrimination due to the basis of pregnancy, childbirth, or related medical conditions, the PWFA requires certain reasonable accommodations to be made. It is still enforced by the EEOC.

Under the new law, covered employers must offer special accommodations for pregnant workers regarding known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.”

Employers will want to make sure that their discrimination posters are up to date and cover this new legislation.

Covered Employers

All private and public sector employers are covered by PWFA. This includes Congress, Federal agencies, employment agencies, and labor organizations.

Reasonable Accommodations

Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations.  This would mean that reasonable accommodation would mean significant difficulty or expense for the employer. 

While reasonable accommodation under the law is defined as "changes to the work environment or the way things are usually done at work", examples outlined by the legislation include but are not limited to, the ability to:

• Sit or drink water
• Receive closer parking
• Have flexible hours
• Receive appropriately sized uniforms and safety apparel
• Receive additional break time to use the bathroom, eat, and rest
• Take leave or time off to recover from childbirth
• Be excused from strenuous activities
• Be excused from activities that involve exposure to compounds not safe for pregnancy

Protections for Pregnant Workers

Under the PWFA, there are some other provisions and employer requirements to be aware of.

Employers may not:

• Require an employee to accept an accommodation without a discussion between the worker and the employer
• Deny a job or other employment opportunities to a qualified employee or applicant based on need for a reasonable accommodation
• Require an employee to take leave in place of a reasonable accommodation that would let the employee keep working
• Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA
• Retaliate against an individual for participating in a PWFA proceeding (such as an investigation)
• Interfere with any individual’s rights under the PWFA

Employer Retaliation Under Federal Discrimination Laws

Under EEOC guidelines, employers are prohibited from retaliating (punishing) an applicant or employee who brings forth a complaint of discrimination. 

The EEOC handles all charges of retaliation. An instance of retaliation from an employer can include the following:

• Reprimands the employee or gives a performance evaluation that is lower than deserved
• Transfers the employee to a less desirable position
• Engages in verbal or physical abuse
• Threatens to make, or actually makes reports to authorities (such as reporting immigration status or contacting the police)
• Increases scrutiny
• Spreads false rumors
• Treats a family member negatively (for example, cancel a contract with the person's spouse)
• Makes the employee’s work more difficult

For employers who are guilty of discrimination, the goal of anti-discrimination law is to make the employee whole. Meaning to place the employee in the same or nearly the same position they would be in, had the discrimination not occurred. What type of relief the employee receives depends on the discriminatory action and its effect on the plaintiff. Victims of discrimination may recover attorney's fees, expert witness fees, and court costs.

Federal discrimination laws have a long history. Since 1964 there have been various changes to such laws. Employers should acquaint themselves and their HR departments with the various laws to ensure compliance. 

The best way to start ensuring compliance is by seeking help from an experienced and talented payroll and HR company.