by Employer Pass, on Dec 20, 2021 7:18:00 AM
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
- Job training
- Advancements or promotions
- 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 which were created to protect both employees and employers from the many different forms of discrimination.
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.
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.
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 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.
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
- 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:
- 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, 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
Major Bodily Functions:
- Immune system
- Normal cell growth
- Digestive system
- Bowel movement
- Neurological system
- 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
- 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:
- Job assignment
- 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.
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.